Judgement

Appeal from a judgment and decree of the High Court (October 18, 1910) reversing the decree of the Subordinate Judge of Madura, and restoring the decree of the District Munsif of Sivagunga.

The suit was instituted by the respondent, the head of a math or religious institution, to recover possession of certain land which formed part of the endowment of a Hindu temple attached to the math. The appellants were in possession and claimed under a perpetual rent-free lease, made in 1897 by the predecessor of the appellant in consideration of a payment of Rs.93.12.

The facts appear from the judgment of their Lordships.

The District Munsif made a decree for delivery of the land cleared of certain erections which had been constructed upon it. He found that for a very long time permanent leases for a premium had been granted of the temple lands according to a local custom, but held that the custom did not in law justify the grant.

The Subordinate Judge, upon appeal, set aside the decree. He considered that the case was distinguishable from other decisions as to permanent leases in that the land was not producing any revenue. He thought that the question was whether the grant was an improvident act, and held that it was not. If custom were needed to justify the grant, he found that there was a valid local custom.

The High Court restored the decree of the Munsif. Krishnamoni Aiyar J. (with whose judgment Wallis

J. concurred) held that there was no evidence to support a local custom to grant permanent leases, and that the fact that the alienation was for a charitable institution, or for the supposed good of the public, was no ground for supporting it. Upon the authority of decisions of the Privy Council he held that, in the absence of necessity, an alienation of temple property on a permanent lease at an unvarying rent, or rent free for a premium, was invalid. The judgment is reported at I. L. R. 34 Madr. 535.

1917. Feb. 1,2. De Gruyther, K.C., and Dube, for the appellants. In Prosunno Kumari Debya v. Golab Chand Baboo (( 1875) L. R. 2Ind.Ap. 145, 151.) the Board regarded an alienation by a shebait as valid if it was " warranted by the terms of the original endowment, or by usage, or was in some way beneficial to the interest of the estate." Each of these three conditions was satisfied in this case. The evidence shows that it was the established practice of the math to grant permanent leases ; from that practice an intention on the part of the founder may be inferred. There was also evidence of a local usage, and concurrent findings as to its existence. The lease was only for the specific charitable purpose named. It was therefore not equivalent to a sale, and was not inconsistent with the object of the endowment or invalid in law. The above cited decision shows that a shebait of a temple may alienate in circumstances which would justify an alienation by the manager for an infant heir, namely, " in case of need or of benefit to the estate " Hunooman Per sands Case. (( 1856) 6 Moo. Ind. Ap. 393.) Here the property was producing no revenue, and a nuisance had arisen which could only be cured by expenditure of money. After inquiry it was found that the best way of dealing with the matter was to lease the property, but in accordance with local usage a permanent lease was the only method practicable. [Reference was also made to the further decisions of the Board mentioned in their Lordships judgment.] In any case, the appellants are entitled to equitable relief in respect of the buildings constructed on the land. Sir Erie Richards, K.C., and Kenworthy Brown, for the respondent, were not called upon.

March 22. The judgment of their Lordships was delivered by

LORD ATKINSON. This is an appeal against a decree of the High Court of Judicature at Madras dated October 18, 1910, which reversed a decree dated August 10, 1908, of the additional Sub ordinate Judge of Madura, and restored that dated June 30, 1906, of the District Munsif of Sivagun