Profits directed from improvements effected by a permanent lessee is not a mesne profits.

The defendant is the appellant. The suit out of which this second appeal is preferred was filed by the Adheenakarthar of the Madurai Adheenam for a declaration that the perpetual lease dated 29.1.1916 does not ‘bind the plaintiff-Mutt and for possession of suit items 1 and 2 and for profits, past and future. The plaintiff-Mutt is a religious trust. The then Pandara-sannathigal Sri-la-Sri Thirugnanasam-banda Swamigal granted a perpetual lease on 29.1.1916 in respect of item No.1 to one Sadasivam Pillai after receiving a premium of Rs.650/-. The lease amount payable is Rs.12/-per annum. The perpetual lease by the then Pandarasan-nadhigal, according to the plaintiff, will be valid only during the tenure of office of the said Pandarasannadhigal who granted the lease and cannot enure beyond his lifetime. Item No.2 which is Survey No.266/2 is an annexure and addition to plaint item No.1. The heirs of Sadasivam Pillai transferred the perpetual lease on 6.9.1937 to Peria-karuppa Nadar, father of the defendant. The said Periakaruppa Nadar raised a coconut tope in Survey No.266/2, which is a poramboke land, after obtaining licence from the revenue authorities. The defendant wrote a letter to the plaintiff informing him that Survey No.266/1 (2 acres 86 cents) has fallen to his share in a partition. Thereupon, the Madathipathi who succeeded the grantor of the lease (hereinafter referred to as plaintiff) issued a notice asking the defendant to surrender possession and as the defendant repudiated the claim of the plaintiff, the plaintiff had to file the suit.

2. The suit was resisted by the defendant who in his answer contended that item 1 is a waste land and heavy sums had to be invested for reclamation and therefore a perpetual lease was granted by the Pandarasannadhigal and that the transaction was a very prudent transaction and was in the interest of the mutt. His further contention is that Sadasivam Pillai invested a heavy amount in reclaiming the entire area and the defendant’s father obtained the rights from the legal representatives of Sadasivam Pillai and he has improved upon the property. He also contended that his rights over item No.2 is that of a licensee and the Mutt cannot claim it and that the suit is bad for non-joinder of Government as a party in so far as item No.2 is concerned. It is also stated that the plaintiff himself has received the rents and the acceptance of the rent amounts to an election to affirm the permanent lease made by his predecessor and he is estopped from questioning the transaction. It is further contended that the suit is barred by the law of limitation and that in any event the plaintiff is bound to pay the value of improvements.

3. The Subordinate Judge who is also a trainee District Judge, dismissed the suit of the plaintiff holding that the act of the previous Madathipathi is granting a permanent lease was a prudent act. The appellate Judge held that the lease is not valid beyond the lifetime of the grantor and allowed the appeal in part decreeing the suit for recovery of item No.1, but dismissed the suit in respect of item No.2 holding that the appellant is not entitled to item No.2. The defendant has preferred the second appeal against the decree to the tenant to which the claim of the plaintiff was allowed. The plaintiff has filed the memorandum of Cross-objections.

4. A learned Judge of this Court while admitting the second appeal formulated the following substantial questions of law:

1. Whether an alienation of a Mutt property by a Madathipathi out of prudence for the benefit of the Mutt could be challenged by the successor when the latter had accepted rents from the alienee or persons claiming under him, both as an agent of the previous Madathipathi and as his successor?

2. When a transaction more than 50 years old is sought to be challenged, long after those who could speak about it had passed away, will not the presumption of law laid down in 64 L.W.525 be available to the tr