1. This second appeal arises from a suit brought by a minor son in a joint Hindu family for a declaration that a perpetual lease of ten agricultural plots granted by one of his brothers in 1922 is null and void as against the plaintiff; and praying to be put in possession of the property. The trial Court decreed the suit on the ground that the lease was not executed for the benefit of the family in that it was not for the payment of any debts binding on the family. The lower appellate Court has reversed this finding on the ground that the lease was a sound business transaction. It may be mentioned that it is agreed before us that there is an inaccuracy in the statement of the case by the learned District Judge, in that the granter of the lease was the brother and not the father of the plaintiff.
2. The facts are that this brother, Dhanwant Narain, acting as manager of the family, executed the lease at a rental of Rs. 70 a year, whereas the property had previously been leased and at any time may be leased at a rental of Rs. 125 a year. It has, however, been found-though no mention of the fact is made in the lease itself-that the lessees gave the lessor what is called a 'nazarana' of Rs. 1,200. It is on the strength of this 'nazrana' that the lower appellate Court has found that the lease was an 'excellent business transaction distinctly favourable to the family.' The Judge points out that although the nominal rent was Rs. 55 per annum, less than it should have been, yet the cash realized, if invested, would bring in an income which would make up for the deficiency in the annual rent.
3. The issue before the learned Judge, however, was not whether the transaction was a good one from a business point of view, but whether the lease was executed for the benefit of the family, and when we consider the extremely technical sense in which those words are used we have no doubt that the issue is not an issue of pure fact but one of mixed fact and law. It has been argued for the respondents that the lease was only an agricultural lease, and was not an alienation, and it is true that there is a clause in the lease by which the lessees become liable to ejectment if they should fall into arrears with their rent beyond a certain period, and if they are ejected on this ground, they lose the nazarana. 'We do not believe, however, that this permanent lease can be regarded in any other light than as an alienation, to support which it was necessary to prove legal necessity or the benefit of the joint family estate. It goes further in the way of alienating the property than a usufructuary mortgage would have done, for the property is removed entirely from the control of the family, provided that the lessees pay the favourable rate of rent to which they have bound themselves. In the case of a usufructuary mortgage the mortgagor still retains the initiative and can recover the property by payment of the mortgage debt. No such initiative is left to the lessor under this lease. It is not denied before us that usufructuary mortgages have always been held by the Courts to amount to alienations of property, and we should for this reason have held this lease to be an alienation. If any authority for such a conclusion were needed it would be supplied by the case of Palaniappa Chetty v. Devasikamony Pandara Sannadhi A.I.R. 1917 P.C. 33 in which it was held by their Lordships of the Judicial Committee that a permanent lease by a shebait of land dedicated to the worship of an idol, of which he was the trustee, was invalid on the ground that he was not constrained to make the lease by any necessity by the consideration of or any benefit accruing to the estate from it.
4. Now it has been held by the Privy Council in the well-known case of Hanooman Prasad Panday v. Mt. Babooee Munraj Kunwari [1854-57] 6 M.I.A. 393 that the manager for an infant heir has only a limited and qualified power to charge an estate not his own. His powers are analogous to those of a manager of a joint Hindu family and the shebait of a temple, and the power to charge the estate can only arise in a case of need or for the benefit of the estate. There has been a tendency in certain rulings of this Court to put a rather more rigorous construction on the decision of the Privy Council in the case of Hanuman Parsad than was perhaps justified by that and one or two later pronouncements. For instance, it has been stated that a charge on a family estate can only be legally justified if it is a defensive act, and in order to clear up the ambiguities of the case-law on this particular point a Full Bench of this Court recently reviewed the position and came to a conclusion which may be summed up as follows. There is nothing in the pronouncements of the Privy Council to show that such a transaction must be of a defensive nature, and further if the transaction be shown to be for the benefit of the estate and such as a prudent owner would have carried out with the knowledge that was available to him at the time, it cannot be set aside by anybody. It was further held that the degree of prudence which might be required from a person who was not the sole owner would be somewhat greater than that which might be expected in the case of a sole owner, and might well be held to be what would be demanded in ordinary cases from a trustee. This decision has not been reported as yet and must be referred to as First Appeal No. 421 of 1925 (Lala Jagat Narain v. Lala Mathura Das. (Since reported is : AIR1928All454 ).
5. Judged by this standard we are of opinion that the permanent lease in the present suit cannot be upheld. There is nothing to show that it was for the benefit of the family that it should be deprived of the chance of deriving benefit in the future from an enhanced rent. There is in fact nothing to show that ready money was wanted at all, or that the manager did not intend to spend the amount of the nazarana on his own pleasures. In the Full Bench case, to which we have referred above, a small portion of the joint family property had been sold for a very good price because it was difficult and expensive to manage, and the object of selling it was stated to be that other land might be bought in a more convenient position, and the Bench held that this was a transaction which was for the benefit of the family estate. In the present case there is not shown to have been either any advantage in giving a permanent lease of the land or is realizing ready money. We have no doubt, therefore, that the decision of the learned District Judge on this point must be reversed and that of the trial Court restored.
6. A further question that has arisen here is this. The plaintiff prayed for possession of the leased property, and the trial Court granted this prayer. It has been strenuously argued on behalf of the appellant that this part of the decree of the trial Court should also be affirmed. In the case of Palaniappa Chetty v. Devasikamony Pandara Sannadhi A.I.R. 1917 P.C. 33 immediate possession was given to the plaintiff. It was not, however, agricultural land that was there in dispute. Other cases that have been relied on by the appellant are those of Abdul Rahman v. Sukhdayal Singh  28 All. 30 and Ram Chand v. Raj Hans  3 A.L.J. 517. In the first of these cases the property belonged to a ward and a sale-deed was executed on his behalf without the sanction of the Court. In the second case a usufructuary mortgagee had granted a lease for a period which extended beyond the period of the possession of the mortgagee. It was held that the vendee in the first case and the lessee in the second could be dispossessed by the owners. In these cases, however, the transferrer was not legally vested with the right to transfer the property at all, and in the second case there was no relationship of landholder and tenant between the plaintiff and the mortgagee lessee. In the present case it must be conceded that the manager had the power to grant leases to tenants in the ordinary course of management of the zamindari property, and there would have been nothing to prevent his granting an ordinary lease to the present lessees. It was only by granting a permanent lease that he exceeded his power. It has been suggested that the whole of the lease becomes null and void and the lessees under it, therefore, become trespassers. We have to consider, however, that the manager admitted these lessees to the occupation of the land as long ago as l922, and that the lessees have presumably been in possession since and have been paying rent regularly. We have also to consider that the manager had legal authority to admit them to the occupation of the land. In these circumstances it seems to us that it would be altogether wrong to regard them as trespassers merely because the manager exceeded his power in executing a permanent lease. Under Section 45, Agra Tenancy Act, 1926
when any person who has been admitted to the occupation of land or permitted to retain possession of land by anyone having a right to admit or permit him with the intention that a contract of tenancy should thereby be effected, but without any rent being fixed, either he or the person so admitting or permitting him may at any time during the period of his occupation or within three years after the expiry of such period sue to have rent fixed thereon.
7. It appears to us that the position of the lessees is analogous to that of persons who have been admitted to the occupation of the land in this way. It is true that when they were admitted to the land it was not intended that the contract of tenancy should be effected by the mere admission, but by a written contract which has been held to be invalid. But it was intended that a contract of tenancy should be effected, and we think that it would be doing violence to the meaning of the words if in these circumstances we were to regard the lessees as trespassers and to eject them from an agricultural holding. There can be no doubt that the relationship of landlord and tenant has been established between them.
8. The result is that we allow the appeal in part and give the plaintiff-appellant a declaration that the permanent lease is null and void and ineffectual as against him, but we dismiss the suit in regard to the prayer for possession. It will be for the parties to settle their rights and liabilities as to rent in the revenue Court. As regards the nazarana it is not clear from the findings of the Courts below whether the amount has been repaid to the lessees, but if not they will be able to recover it in a regular suit. The plaintiff-appellant will receive half his costs throughout from the respondents.