1. This second appeal arises out of a suit brought by the plaintiff-respondent for cancellation of a perpetual lease of a fixed-rate holding by his father on the ground that the lease was executed by his father as manager but for no legal necessity.
2. The trial Court dismissed the suit on a finding that a question of tenancy right arose and as the revenue Court had decided that the defendant was tenant, the civil Court could not deal with this suit.
3. In appeal the lower appellate Court held that Section 273, Tenancy Act, could not apply to oust the jurisdiction of the civil Court in a case like this. No doubt the defendant was a tenant if the lease were a valid lease, and it would be a valid lease until avoided by the son. The revenue Court's decision could not prevent the plaintiff bringing a suit for avoidance of the lease. It found that the alienation was not for legal necessity and decreed the suit.
4. In the present appeal five pleas are taken. The first plea is that Section 273 did apply. This plea was rightly been rejected for the reasons stated by the lower appellate Court.
5. The second plea is that the lease was granted in the ordinary course of management. In other words, this amounts to a plea that the father was bound to give the holding to somebody in the ordinary course of management. This plea would depend upon proving that the father could not deal with the land more profitably himself, i.e., by hired servants. No evidence of this was offered, but at any rate a perpetual lease was clearly not necessary. Two other pleas are pressed. One is that as the father being manager was entitled to give an ordinary lease to the defendant, the lease should be construed as an ordinary lease from year to year. I have been referred to a recent decision of a Bench of two Judges of this Court: Basdeo Narain v. Sheikh Muhammad Yusuf : AIR1928All617 , refusing to give possession to a plaintiff's son in a case where the father had given a perpetual lease without legal necessity on the ground that he could have given a year to year lease which would have entitled the defendant in that case to possession. It is difficult to see how if an alienation by way of a permanent lease is void it can give the so-called lessee any right to possession, but it is sufficient for the purpose of this case to say that this is not a case of giving possession. The plaintiff has only sued for cancellation alleging that he is still in possession and the lower appellate Court has accepted the suit as such. So the decision quoted has no relevance.
6. Another point urged is that as part of the consideration was actually paid, the plaintiff should be put to terms before getting the cancellation. It is not necessary in this case to consider whether Section 65, Contract Act, applies. If it does apply, the manager or the family, whichever used the money paid by the defendant, might be liable to restore it. If so, the defendant can bring a suit to that effect. What we are dealing at present is the cancellation of a lease which the plaintiff is entitled to avoid. The cancellation of the lease is obviously a condition precedent to any right on the part of the defendant to recover any of the money paid for the lease. He cannot therefore complain of a decree for cancellation.
7. For the above reasons the appeal is dismissed.