1. The above appeals are presented against the judgment end decree dated July 24, 1969 in Long Cause Suit No. 1 of 1964 on the file of the District Judge. North Kanara. The said suit was instituted on December 23, 1963 by three plaintiffs. Plaintiff 1 is the deity by name Sri Vishnu Dev of Sri Mahavishnu Devasthan at Sirsi represented by its Moktesar K. V. Govindarao. Plaintiffs 2 and 3 are the above said K. V. Govindarao and Ramdas Govinda Kuntu.
2. Shri Mahavishnu Devasthan in which plaintiff 1 is installed wag declared as public trust under the Bombay Public Trusts Act. 1950 (hereinafter referred to as the Act) and it is entered at Serial No. A 646 (KWA) in the register of public trusts maintained under the Act.
3. The case of the plaintiffs is as follows:--
Lands bearing R. S. No. 44 measuring 3 acres 15 guntas and R. S. No. 288 measuring 2 acres 19 guntas situate in Sirsi Kasaba within the Municipal limits of Sirsi Town belong to the deity plaintiff 1. One Seshagiri Balakrishna Rao Sonde (hereinafter referred to as Seshagiri Sonde) acting as the moktesar or manager of plaintiff 1 save the said land on permanent lease to defendants 1 and 2 in consideration of an annual payment of Rs. 22-50 under a permanent lease deed dated July 4. 1928 and that defendants 1 and 2 executed a deed dated July 4, 1928 in favour of the deity represented by one Govind Narayanrao Islur who was acting on behalf of Seshagiri Sonde. Pursuant to the said lease, defendants 1 and 2 were put in possession of the lands, Under the lease it was not permissible for the lessor i. e. the deity to vary the rate of rent agreed upon and even that rent was very much inadequate in view of the potential value of the lands in question.
The lands were capable of being converted into building sites in view of their situation within the Municipal limits of a growing town like Sirsi. There was no legal necessity justifying the creation of the said permanent lease. It was also pleaded that even according to one of the terms of the said lease, the lessees were not entitled to alienate the lands in favour of other parties and that it was stipulated that if there was a breach of the said condition, the lessor could exercise the right of re-entry on the lands in question. In spite of such a condition being there, defendants 1 and 2 having transferred the lands in favour of other parties had violated the said condition. After the said lease came into existence, defendants 1 and 2 divided the lands between themselves and that defendant 1 transferred the lands which came into his possession in favour of third party from whom defendant 3 purchased the same. Defendant 2 had transferred the land in his possession in favour of defendants 4 to 31. Defendant 32 is the Charity Commissioner appointed under the Act. who was impleaded in accordance with law,
4. Seshagiri Sonde who was the manager of the deity plaintiff 1 and who had created the permanent lease in favour of defendants 1 and 2, died on December 27, 1951. On his death, one Venkataraman Sham Bhat became the manager. In the year 1960. Venkataraman Sham Bhat resigned from the said office and thereafter plaintiff 2 K. V. Govindarao became the manager. Immediately after his appointment. K. V. Govindarao took necessary action to repudiate the permanent lease executed in favour of defendants 1 and 2 on the ground that the same had been created without any legal necessity or benefit of the deity by issuing notices to defendants 1 and 2. It was also stated in the said notices that defendants 1 and 2 had violated the terms of the said lease even granting that the lease was binding on plaintiff 1. The lessees were therefore called upon to deliver possession of the suit lands in favour of the plaintiffs. When the demand made in the said notices was not complied with, the plaintiffs instituted the above suit, on December 23, 1963 within 12 years from the date of the death of the transferor, namely Seshagiri Sonde.
5. Defendants 1 and 2 filed separate written statements. The written statements filed by defendants 1 and 2 were adopted by some of the other defendants. In the course of the written statements, it was contended that the permanent lease created by Seshagiri Sonde in favour of defendants 1 and 2, was valid and binding on plaintiff 1, that it was supported by legal necessity end that defendants 1 end 2 had not violated any of the conditions of the lease. It was also pleaded in the alternative that the said permanent lease was for the benefit of the deity. The rent stipulated in the lease was reasonable having regard to the conditions prevailing at the time of the lease. On behalf of defendant 1 it was further pleaded that the portion of the land which fell to his share, was still in his possession and that he had not transferred the same in favour of any third-party. While admitting that defendant 1 had executed a sale deed in favour of one Ajjayya who was the brother of his wife, defendant 3 in respect of the portion of the land which fell to his share, has pleaded that Ajjayya had transferred the land in favour of defendant 3 and that the said transactions were nominal in nature. It was submitted that the title to continue in possession remained with defendant 1 notwithstanding the fact that the sale deed had come into existence in favour of Ajjavva. According to defendant 1 there was no violation of the condition which prohibited alienation of the suit lands.
6. It was also pleaded on behalf of the defendants that in view of the provisions of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as the B. T. A. L. Act) the suit was not maintainable. On the above pleadings, the trial Court framed as many as 22 issues. The material questions which arose for consideration before the trial Court were :--
(1) Whether the permanent lease dated July 4, 1928 created in favour of defendants 1 and 2 was binding on the deity plaintiff 1 ?
(2) Whether defendants 1 and 2 had violated the condition of the lease which prohibited alienation of the suit lands by the lessees and
(3) Whether the Civil Court had no Jurisdiction to try the suit? It is unnecessary to refer to the other issues raised before the trial Court because they were not canvassed before us.
7. At the conclusion of the trial Court held that the permanent lease created in favour of defendants 1 and 2 was not binding on plaintiff 1 as it had not been established by defendants 1 and 2 that the same came into existence either for legal necessity or for the benefit of plaintiff 1 and that defendants 1 and 2 had not made proper enquiries as to the existence of any such legal necessity or benefit. It further held that even though the alienation by defendant 1 of his share of the leasehold right in favour of Ajjayya was only nominal the alienations made by defendant 2 resulted in the forfeiture of the tenancy. It was next held that the suit was maintainable in view of Section 88-B of the B. T. A. L. Act which excluded the application of the provisions of Chaps. VI & VIII of the B.T.A.L, Act to lands which were the property of a trust registered under the Act. As e consequence, of the above findings, the suit came to be decreed by the trial Court.
8. Aggrieved by the judgment and decree of the trial Court, R. F A. No 83 of 1969 is filed by defendants 1, 3, 13, 16, 17, 22 to 24 and 28 and R. F. A. No. 84 of 1969 has been filed by defendants 2, 6, 12, 14, 30, 25, 21, 15 and 10.
9. Exhibit 85 is the registered lease deed executed by defendants 1 and 2 in favour of plaintiff 1 represented by its wheatear. It does not contain any recital regarding the necessity for creating the permanent lease in favour of the defendants 1 and 2. The only reason given for giving away the properties mentioned therein on e permanent lease is that the lands were remaining uncultivated from the commencement of that year till the date of the said deed i. e. 4-7-1928. A sum of Rs. 20-8-0 is stipulated as the rent payable and that there is no clause in Exhibit 85 which authorises the landlord to vary the rate. One other condition mentioned in the said document is that the lessees had no authority to transfer the properties which were the subject-matter of the said lease either by way of mortgage, sale, gift, exchange, etc. and in the event of the said condition being violated, the lessor was entitled to exercise the right of re-entry. The two lands which are leased out under the said document bear S. Nos. 44 and 288 situate in Sirsi Town and their total extent is 7 acres. 30 guntas. The plaintiffs instituted the above suit for setting aside the permanent lease within 12 years from the date on which Seshagiri Sonde. the transferor, died. Even though there was a plea in the written statement that the suit was barred by time, the said contention was not urged before us in view of the provisions of Article 134-B of the Indian Limitation Act. 1908.
10. Sri K. S. Sathyamurthy. the learned counsel for the appellants urged three contentions in support of these appeals :
(1) That the permanent lease created under Exhibit 85 was binding on the plaintiffs;
(2) that defendants 1 and 2 had not violated the condition in the lease deed which prohibited alienation of the properties; and
(3) that in view of the provisions of the Bombay Tenancy and Agricultural Lands Act, the suit was not maintainable before the Court below.
11. It is not disputed that the suit lands belong to the deity plaintiff 1 and that they were therefore debutter properties. It is also not disputed that plaintiff 1 has been declared as a public trust under the provisions of the Act. A wheatear or a manager has not got an unqualified power of alienation in respect of debutter properties. His powers in that regard are restricted. He can alienate debutter properties only for legal necessity or for the benefit of the deity. The expressions 'legal necessity' and 'the benefit of the deity' have been the subject-matter of decisions of Courts in India and of the Privy Council for over one hundred years. The powers of a manager or wheatear with regard to alienation of debuttar property are analogous to the powers of a guardian in relation to the estate of a minor. A permanent lease under which the rent payable is a fixed one and not subject to variation at the instance of the lessor, is also considered as an alienation which is subject to the restriction that it cannot be created unless there is legal necessity or it is established that it is for the benefit of the deity.
In Maharanee Shibessouree Debia v. Mothooranath Achario, (1869-70) 13 Moo Ind App 270 (PC), it was held that a permanent lease of a land belonging to a religious endowment created by a sebait with a fixed rent for all times though adequate at the time when the lease was created was not one which could be created by him but such a lease might be assumed to be one binding on the deity if it was otherwise conformable to any established usage. The above decision was followed bv the Privy Council in Prosunno Kumari Debya v. Golab Chand Baboo. ((1874-75) 2 Ind ADP 145 (PC)) in which it was held that the authority of the sebait of an idol's create (property?) with regard to alienations of the said estate was analogous to that of a guardian of an infant heir as explained by Lord Justice Knight Bruce in Hanooman Persuad Panday v. Mt. Babooee Munraj Koon-weree. ( (1854-57) 6 Moo Ind App 393 (PC)) wherein it was observed as follows:--
'The power of the manager for an infant heir to change an estate not his own is under the Hindu Law, a limited and qualified power. It can only be exercised rightly in a case of need or for the benefit of the estate. But where, in the Particular instance the charge is one that a prudent owner would make in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded. But of course, if that danger arises or has arisen from any misconduct to which the lender is or has been a party, he cannot take advantage of his own wrong to support a charge in his own favour against the heir grounded on a necessity which his own wrong has helped to cause. Therefore, the lender in this case, unless he is shown to have acted mala fide, will not be affected, though it be shown that with better management the estate might have been kept free from debt.'
In Palaniappa Chetty v. Sreemath Devasikamony Pandara Sannadhy. (AIR 1917 PC 33) it was observed that it was a breach of duty on the part of a she-bait unless constrained thereto by unavoidable necessity, to grant a lease in perpetuity of debutter lands be they agricultural lands or building sites at a fixed rent however adequate that rent may be at the time of granting, by reason of the fact that by this means the debutter estate would be deprived of the chance it would have, if the rent were variable of deriving benefit from the enhancement in value, in the future, of the lands leased. It was also held that the above view which had been expressed by the Privy Council in respect of agricultural lands earlier was also applicable to non-agricultural lands or sites. In an yet another case. Daivasikhamani Ponnambala Desikar v. Periyanan Chctti it was laid down by a Judicial Committee that a permanent lease or absolute alienation of debutter property was beyond ordinary powers of management whether in the case of the head of a math shebait of a family idol, or the dharmakarta of a temple. Such alienation could be justified only by proof of necessity for the preservation of the endowment or institution. The view of law expressed by the Privy Council in the decision referred to above has been adopted by the Supreme Court in several decisions rendered by it. In Kalanka Devi Sansthan v. Maharashtra Revenue Tribunal. Nagpur, : [1970]1SCR936 , the Supreme Court observed as follows:--
'Now it is well known that when property is given absolutely for the worship of an idol it vests in the idol itself as a juristic person. As pointed out in Mukherjea's Hindu Law of Religious and Charitable Trust at pages 142-143 this view is in accordance with the Hindu ideas and has been uniformly accepted in a long series of judicial decisions. The idol is capable of holding property in the same way as a natural person. It has a juridical status with the power of suing and being sued. Its interests are attended to by the person who has the deity in his charge and who is in law its manager with all the powers which would, in such circumstances, on analogy, be given to the manager, of the estate of an infant heir.'
From the foregoing it is clear that unless it is shown that the permanent lease evidenced by Exhibit 85 was entered into for legal necessity or benefit of the deity, the said lease cannot be binding on the deity. We shall next proceed to consider whether it is so established in this case.
12. The burden of establishing the circumstance justifying an alienation of debutter property is on the alienee. In the course of the written statement, it was pleaded by the defendants that the suit lands were leased on account of legal necessity and for the benefit of the deity. According to them that on account of economic depression during the year 1927-28, no tenant was to cultivate the lands of the temple and the permanent lease created during that time could not be considered as an imprudent or an unwise one. It was also pleaded that previously the suit lands had been leased out to one Manjunath Narayan Naik on an annual rental of Rs. 25/- and that the temple had to pay the assessment and local cesses amounting to Rs. 10-6-0. The temple was therefore, getting a sum of Rs. 14-10-0 by way of net income from the suit lands till 1924-25 when the said lessee surrendered the lands because it provision to be uneconomical for him to cultivate the lands and that between 1924-25 and the date on which Exhibit 85 was executed, the suit lands were lying fallow. It was therefore, pleaded that the lease was for the benefit of plaintiff 1.
In support of the above case, the defendants have relied upon the oral evidence adduced in the case. There is no documentary evidence in proof of the lease that was alleged to have been executed in favour of Manjunath Narayan Naik and about its terms. The only witness who has given evidence on the above question is defendant 1 who has been examined in this case as D.W. 3. He has stated that the suit lands had been leased in favour of defendants 1 and 2 on fixed annual rent of Rs. 20-50 and that defendants 1 and 2 had to pay the assessment of Rs. 10/- charged on the lands. He would have it that the suit lands were in very bad condition before they were leased to him and defendant 2 and that they were lying fallow for about three years prior to the same. He also refers in the course of his deposition to the lease of lands in favour of Manjunath Narayan Naik and that Manjunath Narayan Naik surrendered the suit lands because he would not raise anything on the lands.
It is stated that Seshagiri Sonde, the then manager of plaintiff 1 requested defendants 1 and 2 to take the suit lands on lease to avoid their forfeiture on account of non-payment of assessment. He has further stated that the cultivation of lands during 1927-28 was uneconomical. In the course of cross-examination it is admitted by him that plaintiff 1 owned several other lands in several villages such as Daramane, Swadi, Sirsi, Sampakhanda Karwar, Yellapur and other places. He has admitted that when the talk took place between him and Seshagiri Sonde, defendants 2 and 3 were present. Defendant 2 has not been examined in this case and defendant 3 who has been examined as D.W. 1. does not give any details about the discussion which preceded the lease. There is practically no evidence on the side of the defendants to show that there was any pressure on the estate of plaintiff 1 which necessitated the execution of the lease in favour of defendants 1 and 2. It is also not shown is to whether there was any need for giving away the lands on fixed rent without the lessor having the power to vary the rate of rent on a future date depending upon the prevailing circumstances.
It is seen from the evidence placed before the Court that the suit lands are within the Municipal limits of Sirsi Town and a major portion of the suit lands has been converted into non-agricultural purposes yielding a large income. Plaintiff 2 who has been examined as P.W. 1 in this case, has stated in the course of his evidence that there was no necessity for the temple to enter into such a lease in the year 1928. He has stated that the financial position of plaintiff 1 in 1928 was sound and that after meeting the expenses of the temple, money had been deposited in Sirsi Urban Co-operative Bank. Exhibit 86 is the Pass Book of plaintiff 1. On 15-6-1928 a sum of Rs. 335/- was standing to the credit of plaintiff 1 in the said Bank end that even on 15-12-1928 the said sum was standing to the credit of plaintiff 1. According to plaintiff 2 it was quite possible for the wheatear to spend money on the services rendered in the temple without creating the permanent lease in question. In the circumstances of the case, we are of the opinion that defendants 1 and 2 on whom the burden lay have not adduced satisfactory evidence showing that the lease in question was for legal necessity or for the benefit of the deity. We are satisfied that the permanent lease granted in favour of defendants 1 and 2 in respect of the suit lands, is therefore, liable to be set aside.
13. The next Part of the case relates to the plea of the plaintiffs that defendants 1 and 2 had violated the condition of the lease under which they were prohibited from transferring the properties in favour of others. It is admitted by defendant 1 that the suit lands were divided between himself and defendant 2 and they were in possession of their respective shares. It is also admitted that defendant 1 had executed a sale deed in favour of his brother-in-law Ajjayya on 18-7-1952 as per Exhibit D-1 conveying his leasehold rights in the suit lands end that Ajjayya in turn had executed a sale deed conveying his interest in the suit lands in favour of defendant-3 wife of defend-ant-1 as per Exhibit D-2 dated 13-12-1953. It is not disputed that there was a condition in the lease deed which prohibited the alienation, but it was pleaded by defendant-1 that the said sale in favour of Ajjayya and re-conveyance in favour of defendant-3 evidenced by Exhibits D-1 and D-2 were only nominal and the properties in question continue to be in his possession in spite of the said deeds. It was pleaded that defendant 1 had stood as surety for one Mahabala Setty who has been examined in this case as D.W. 4 in respect of a loan of Rs. 12,000/- advanced by the Rural Bank, and therefore, in order to shield the suit lands from the possible threat from the creditors of Mahabala Setty. Exhibit D-1 was executed by him.
In support of the above case, was have the evidence of defendants 1. 3, Ajjayya and Mahabala Settv. The court below has come to the conclusion that Exhibits D-1 and D-2 were only nominal transactions and that defendant 1 had not ceased to be the leaseholder of the suit lands. It should be mentioned at this stage that no documentary evidence is produced by the defendants showing that Mahabala Setty in fact had borrowed money from the said Rural Bank end that defendant 1 had stood surety in respect of the said debt. Mahabala Setty who has been examined as D.W. 4, has stated that the relevant documents were in the custody of the Bank. No explanation is given as to why those documents were not got produced before court. It is argued on behalf of the plaintiffs that the oral evidence given by D.Ws. 1 to 4 regarding the manner in which the idea of executing benami deeds was mooted and executed varies from witness to witness. It is also urged that defendant 2 and his alienees have not given evidence in this case. We find it unnecessary to go into the question whether defendants 1 and 2 have violated the above condition in the lease deed since we have come to the conclusion that this suit should be decreed on the first ground.
14. We do not also find much substance in the contentions of the appellants that in view of the provisions of the BTAL Act defendants 1 and 2 could not be ordered to be evicted by the Civil Court. It is not disputed in this case that a large portion of the suit lands has been converted into non-agricultural purposes, and to that extent, they have ceased to be agricultural lands, and further by virtue of Section 88-B of the BTAL Act. the said Act has been made inapplicable to the properties belonging to a public trust registered under the Act, in so far as eviction proceedings are concerned. One other contention raised on the basis of the corresponding provision in the Mysore Land Reforms Act has not been raised before the Court below nor before this Court by suitably amending the written statements. Further, even if the Mysore Land Reforms Act is applicable, we do not think that the position of defendants 1 and 2 would be different from the position under the BTAL Act. We however, do not propose to express any opinion on this question.
15. In view of our finding that the permanent lease in question was not supported either by legal necessity or benefit of the deity, we hold that the suit has been rightly decreed by the court below. We therefore dismiss both the appeals with costs.