1. This is a suit brought by the assignee of a permanent lease. granted by the trustee of a trust called Lala Dharman, to recover possession of the suit site from the tenant in occupation. The suit was dismissed in the District Munsif's Court on the ground that the trustee had no power to alienate the trust property and that his alienation was void and conveyed no title to the plaintiff, and on appeal the District Judge has confirmed this decision and dismissed the appeal.
2. It is contended before us that the grant of a permanent lease represented not a void but a voidable transaction and that it has not yet been avoided. In Kalyana Venkataramana Aiyangar v. Kasturi Ranga Aiyangar 38 Ind. Cas. 73 : 31 M.L.J. 777 : 20 M.L.T. 490 : 5 L.W. 625 : (1917) M.W.N. 400 my learned brother stated: 'It is now settled law that ordinarily a permanent alienation of trust properties is ultra vires of the powers of a trustee', and the respondent's Pleader asks us to treat this expression 'ultra vires' as meaning void, but it does not necessarily have that signification. There is also an expression by, Abdur Rahim, Officiating Chief Justice, in the Full Bench opinion in the same case that the alienation of the right of making collections for the temple 'was void and did not bind the temple in any way;' when the learnd Judge used the word 'void' in this context he was not using it as opposed to voidable, as no argument was before him on the point of voidability.
3. In Palaniappa Chetty v. Sreemath Deivasikamony Pandara Sannadhi 39 Ind. Cas. 722 : 21 C.W.N. 729 : 15 A.L.J. 485 : 1 P.L.W. 697 : 33 M.L.J. 1 : 19 Bom. L.R. 567 : 22 M.L.T. 1 : (1917) M.W.M. 507 : 26 C.L.J. 153 : 6 L.W. 222 : 44 I.A. 147 the Judicial Committee of the Privy Council observed: 'the grant of a lease in perpetuity of Debutter lands at a fixed rent required to be justified by unavoidable necessity.' Such an expression would not have been used if the lease was itself a void transaction. Their Lordships compared the position of a Shebait or trustee with that of a guardian of an infant as regards the management and control of immoveable property. It is well settled that if a guardian exceeds his powers in dealing with the property of an infant, his acts are voidable and not void. In Abhiram Goswami v. Shyama Charan Nandi 4 Ind. Cas. 449 : 36 C. 1003 : 14 C.W.N. 1 : 19 M.L.J. 530 : 10 C.L.J. 284 : 6 A.L.J. 857 : 11 Bom. L.R. 1234 : 36 I.A. 148the Privy Council were dealing with a Mokurari Pattah, which corresponds to a lease in perpetuity and they held that such a lease of Debutter property, given by a Mohant was good for the lifetime of the Mohant who granted it. It would have been impossible for them to come to this conclusion if the grant had been void ab initio. In Kadir Ibrahim Rowther v. Arunachellam. Chettiar 4 Ind. Cas. 1082 : 19 M.L.J. 787 it was held that a lease by a trustee for a period exceeding 21 years was not void but only voidable at the instance of the cestui que trust. This was no doubt a decision based upon Section 35 of the Indian Trusts Act (Act II of 1882) which applies only to private trusts. But in this respect the principle appears to be the same, namely, that a lease of trust property which is in excess of the trustee's powers is not void but only voidable. I am, therefore, of opinion that the lower Courts were wrong in deciding the case upon this point, and the appeal must be allowed and the suit remanded to the Court of first instance for trial upon the other issues in the case. Costs will abide and follow the result.
Seshagiri Aiyar, J.
4. I agree. The position of the defendant must be regarded as that of a trespasser. His title has not been gone into and, therefore, it must be taken that be resisted the suit on the ground that the plaintiff must show a better title than he possessed.
5. The position taken by the lower Courts, and which was pressed upon us by the learned Vakil for the respondent, amounts to saying that the alienation by a trustee is void ab initio like an alienation which is opposed to public policy or one made illegally. This position, to my mind, is untenable. As my learned brother has just now pointed' oat, the Judicial Committee have held that a trustee has, in certain circumstances, power to dispose of the trust property; he can sell it and he can lease the property provided a necessity for doing so has been made out. If that is the true position of a trustee in granting a permanent lease, if no necessity is proved, he will only be exceeding the powers be possesses. Consequently the transaction, although it may be avoided by persons who could sue on behalf of the trust, would still give the alienee aright until it is avoided. This is the principle which the Judicial Committee must be taken to have enunciated in Abhiram Goswami v. Shyama Charan Nandi 4 Ind. Cas. 449 : 36 C.P 1003 : 14 C.W.N. 1 : 19 M.L.J. 530 : 10 C.L.J. 284 : 6 A.L.J. 857 : 11 Bom. L.R. 1234 : 36 I.A. 148 where they say that the alienation was good during the lifetime of the grantor. Mr. Justice Beaman in Mahamadgaus v. Rajabaksha 19 Ind. Cas. 558 : 15 Bom. L.R. 266 interpreted the decision of the Privy Council in Abhiram Goswami v. Shyama Charan Nandi 4 Ind. Cas. 449 : 14 C.W.N. 1 : 19 M.L.J. 530 : 10 C.L.J. 284 : 6 A.L.J. 857 : 11 Bom. L.R. 1234 : 36 I.A. 148 as holding that an alienation by a trustee is not void altogether but only voidable. The Privy Council have further held that the power of a trustee of a temple is analogous to that of a manager of a Hindu joint family or the guardian of an infant. As regards the manager of a Hindu family it has never been held that an alienation by him is void ab initio, it is only voidable, Similarly in the case of an alienation by a guardian of an infant, Section 30 of the Guardians and Wards Act (Act VIII of 1890) declares in express terms that it is only voidable. It is also pointed out in Kadir Ibrahim Rowther v. Arunachellam Chettiar 4 Ind. Cas. 1082 : 19 M.L.J. 787 that the transaction of a private trustee granting a lease beyond 21 years which the law permits him to grant is only voidable.
6. Applying the analogy of these legislative provisions I agree with my learned brother that an alienation by a trustee cannot be held to be void.
7. The result is that if the defendant can show a better title than the plaintiff, he will be allowed to retain the property; if, on the other hand, he has no title, he is not entitled to resist the suit brought by the plaintiff until the trustee or somebody interested in the trust takes steps to avoid the transaction. He has dearly a title which he can enforce as against a trespasser.