KADIR MASTAN ROWTHER Vs. SENGAMMAL

JUDGEMENT

(1.) This is a suit brought by the assignee of a permanent lease granted by the trustee of a trust called Lala Dharmam to recover possession of the suit site from the tenant in occupation. The suit was dismissed in the District Munsif s Court, on the ground that the trustee had no power to alienate the trust property and that his alienation was void and conveyed no title to the plaintiff; and on appeal the District Judge has confirmed this decision and dismissed the appeal.

(2.) It is contended before us that the grant of a permanent lease represented not a void but a voidable transaction and that it has not yet been avoided. In Venkataramana Ayyangar v. Kasturiranga Ayyangar (1917) I.L.R., 40 Mad., 212 (F.B.) my learned brother stated: It is now settled law that ordinarily a permanent alienation of trust properties is ultra vires of the powers of a trustee. and the respondent s pleader asks us to treat this expression ultra vires as meaning void; but it does not necessarily have that signification. There is also an expression by Abdur Rahim, Officiating Chief Justice, in the Full Bench Opinion in the same case that the alienation of the right of making collections for the temple "was void and did not bind the temple in any way". When the learned Judge used the word void in this context he was not using it as opposed to voidable, as no argument was before him on the point of voidability.

(3.) In Palaniappa Chetty v. Sreemath Devasikamony Pandara Sannadhi (1917) I.L.R., 40 Mad., 709 (P.C.) the Judicial Committee of the Privy Council observed "the grant of a lease in perpetuity of debottar lands at a fixed rent required to be justified by unavoidable necessity". Such an expression would not have been used if the lease was itself a void transaction. Their Lordships compared the position of a shebait or trustee with that of a guardian of an infant as regards the management and control of immoveable property. It is well settled that if a guardian exceeds his powers in, dealing with the property of an infant his acts are voidable and not void. In Abhiram Goswami v. Shyama Charan Nandi (1909) I.L.R., 36 Calc., 1003 (P.C.), the Privy Council were dealing with a Mokurari pattah which corresponds to a lease in perpetuity, and they held that such a lease of debottar property given by a Mahant was good for the life-time of the Mahant who granted it. It would have been impossible for them to come to this conclusion if the grant had been void ab initio. In Kadir Ibrahi Rowthen v. Arunachellam Chettiar (1910) I.L.R., 33 Mad., 397, it was held that a lease by a trustee for a period exceeding 21 years was not void but only voidable at the instance of the cestui que trust. This was no doubt a decision based upon Section 36 of the Indian Trusts Act (II of 1882) which applies only to private trusts. But in this respect the principle appears to be the same, namely, that a lease of trust property which is in excess of the trustee s powers is not void but only voidable. I am therefore of opinion that the lower Courts were wrong in deciding the case upon this point and the appeal must be allowed and the suit remanded to the Court of first instance for trial upon the other issues in the case. Costs will abide and follow the result. Seshagiri Ayyar, J.