Banda V. Rosehaugh Tea And Rubber, Co., Ltd.,

Present : Wood Renton C.J. and De Sampayo J.

BANDA v. ROSEHAUGH TEA AND RUBBER CO., LTD.

 263-D. G. Kandy, 84,837.

    Lease by an incumbent of a temple for thirty years-Covenant for renewal for another period of thirty years at the option of the lessee-Action to set aside lease so far as option to demand renewal was concerned- Buddhist Temporalities Ordinance, 1905, s. 38-Is trustee bound by a lease by the incumbent!

Under section 88 of the Buddhist Temporalities Ordinance of 1905 the question of the consistency of a lease of lands belonging to a temple with the interests of the temple must be looked at from the standpoint not only, or chiefly, of the past, but of the present.

" The power conferred upon the Court by section 38 must be exercised with caution, and with due regard to the position of the lessee as well as of the lessor. Each case must be disposed of on its merits. The mere fact that, at the date of the inquiry held under section 38, temple property could be dealt with on more advantageous terms would be no reason for the interference of the Court. But where, in view of the whole circumstances of the case, the Court is satisfied that the continued existence of any lease pending at the date when the Buddhist Temporalities Ordinance, 1905, came into force is flagrantly in conflict with the vital and elementary interests of the temple, it is bound to set that lease aside. "

A lessee is entitled to reasonable compensation for improvements effected by him on lands when the lease is set aside under section 38.

THE facts are set out in the judgment.

Bawa, K. C., and A. St. V. Jayewardene, for defendants, appellants.

H- J. C. Pereira and Chitty, for plaintiff, respondent.

Cur. adv. vult.

October 9, 1917. WOOD RENTON C.J.-

The plaintiff is the trustee of the Aluvihare temple. The former incumbent of that temple, by deed No. 683, dated November 18, 1886, leased certain of its lands to Mr. Alexander Boss for a period of thirty years, at an annual rent of Be. 1.50 per acre for the first

three years, and thereafter of Rs. 2 per acre for the remainder of the term. The lease contained a covenant for renewal, at the same rent and generally on the conditions contained in it, at the option of the lessee. The lands demised have now been converted into a rubber estate, and are in the possession of the defendants, the Rosehaugh Tea and Rubber Co., Ltd., on an assignment of the lease by Mr. Boss, the original lessee. The lease was due to expire OK. November 18, 1916, and the defendants, through their proctor, on March 17, 1916, called upon the plaintiff, who was elected trustee of the temple in October, 1915, and re-elected in 1916, to implement the covenant for renewal. The plaintiff refused to do so, and subsequently sold the lease to a third party at a higher annual rent, namely, Rs. 80 an acre. In the present action he sues, under the provisions of section 38 of the Buddhist Temporalities Ordinance, 1905,1 to have the lease set aside in so far as the option to demand a renewal is concerned. The grounds of his claim are that an extension of the term of the lease for thirty years is inconsistent with the interests of the temple, and that its conditions generally disclose an improvident alienation and inadequate consideration within the meaning of the provisions of section 38 of the Buddhist Temporalities Ordinance, 1905.1 The defendants deny the plaintiff's right to have the lease set aside. They further plead that, at the date of the lease the land was jungle, and that, relying on its terms, they planted the land with rubber at a considerable expense, and claim that, if the lease be set aside, they should be awarded Rs. 45,000 by way of compensation. The case went to trial on the following issues: (1) Do the averments in the plaint' disclose the plaintiff's right to the relief prayed for in the plaint ? (2) Was the term of

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