# SRIDRAR SUAR & ANR v. SHRI JAGAN NATH TEMPLE & OTHERS

- **Citation:** [1976] Supp. 1 S.C.R. 101
- **Court:** Supreme Court of India
- **Decided:** 1976-04-21
- **Bench:** A. N. Ray, M. H. Beg, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sridrar-suar-anr-v-shri-jagan-nath-temple-others-6862
- **Pages:** 9

## Headnote

101
Transfer of Property Act, l.882-Sec. 105-lndian Easenzent Acr, 1882,
Sec. 52-Distinction between lease and licence Lis Pendens-Puri Shri Jagan ..
.... •
not.It Ten1ple (Administration) Act 1952--Sec. 2(d)~.~eaning of.
Hindu Law-Whether i.\1ohant of a Hindu Te1nple can grant a Vl!.*!id pcnnanent lease.
,
The appellant's great grandfather was granted a Sanad in respect Of 2 rooms
in the J agannath temple by the Superintendent of temple at the annual rent of
Rs. 7 /-. The Sanad provided that the grantee wo1~d be entitled to enjoy the
said 2 rooms from generation to generation and iu case a permanent structure
was constructed thereon the rent \vould be enhanced to Rs. 14/- per year.
After the death of great-grand-father of the appellant the grand father and
thereafter the father of the appellant continued storing and selling dry 'lvfahaprasad' in the said property and continued to pay Rs. 14/- per year.
The
respondents who have the ·management of Jagannath temple at present under
the Puri Jagannath Temple (Administration) Act, 1952, called upon the appellants' father to close and to hand over the possession of the two rooms to the
management on the ground . that the storage and sale of Mahaprasad in the
Bihar Bedha of the temple affected adversely the discipline and dignity of the
temple. The appellant's father was threatened with imposition of a penalty of
Rs. 100/- per day in case he did not vacate the premises in question. The
appellant's father, therefore, filed the suit in the CiVil Court which after his
death has been continued by the present appellant for permanent injunction
restraining the respondents fron1 interfering with his right of storing and selling
dry Mahaprasad in the suit premises. According to the plaintiff the permanent lease was grahted to him by the Raja DibyaSingba and tnat since he was
continuing to pay the rent regularly he was entitled to continue in the suit
premises from generation to generation. The respondents contested the suit o~
the ground that it was beyond the eompetence' of Raja of Puri as, Manager ot
the temple to grant a permanent lease and that, therefore, the Sanad was ineffectual, invalid and inoperative. and conferred no rights on the appellant and
his ancestors which W<Juld bind the present respohdents.
Secondly, since the
act of storing and selling Mahaprasad at the suit premises constitute a breach
of order and discipline, the respondents under the above statute had right to
ask the appellant to vacate. Thirdly what was granted by the Sanad was a
licence and not a lease.
The triai court dismissed the suit. However, an appeal was allowed.
The
High Court accepted the second appeal and dismissed the suit.
In an appeal by special leave it was contended by the appellants :-
(!) The suit property did not form part of the temple.
(2) The Sanad granted a permanent lease of the suit property and not
merely a licence, and therefore the _appellant had an indefeasible
right of storing and selling Mahaprasad.
Dismissing the appeal,
HELD : (1) Section 2(d) of the Puri Sri Jagannath Temple (Administra·
tion) Act, 1952, defines temple as including the temple of Lord Jagannath of
Puri, other temples within its premises and all other appurtenants and subordinate shrines, other sacred places and tanks and any additions which may be
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made thereto after commencement of the Act. Records of ri&hi! prepared
under the said Act also include the suit premises within the meaning of temple.
[!04 HJ
(~) .It is ~ow ':"ell settle<:\. by a c~te~a of decisions of the Supre111e Court
that 1t is the creation of an interest 1n immovable property that distinguishes
a lease from a licence. The intention of the parties is the real test for ascertaining the character of a document. At one time it was thought that the
test of exclusive possession was infallible and if a person \Vas given exclusive
possession of a premises it would conclusive

## Text

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SRIDRAR SUAR & ANR.
v.
SHRI JAGAN NATH TEMPLE & OTHERS
April 21, 1976
[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]
101
Transfer of Property Act, l.882-Sec. 105-lndian Easenzent Acr, 1882,
Sec. 52-Distinction between lease and licence Lis Pendens-Puri Shri Jagan ..
.... •
not.It Ten1ple (Administration) Act 1952--Sec. 2(d)~.~eaning of.
Hindu Law-Whether i.\1ohant of a Hindu Te1nple can grant a Vl!.*!id pcnnanent lease.
,
The appellant's great grandfather was granted a Sanad in respect Of 2 rooms
in the J agannath temple by the Superintendent of temple at the annual rent of
Rs. 7 /-. The Sanad provided that the grantee wo1~d be entitled to enjoy the
said 2 rooms from generation to generation and iu case a permanent structure
was constructed thereon the rent \vould be enhanced to Rs. 14/- per year.
After the death of great-grand-father of the appellant the grand father and
thereafter the father of the appellant continued storing and selling dry 'lvfahaprasad' in the said property and continued to pay Rs. 14/- per year.
The
respondents who have the ·management of Jagannath temple at present under
the Puri Jagannath Temple (Administration) Act, 1952, called upon the appellants' father to close and to hand over the possession of the two rooms to the
management on the ground . that the storage and sale of Mahaprasad in the
Bihar Bedha of the temple affected adversely the discipline and dignity of the
temple. The appellant's father was threatened with imposition of a penalty of
Rs. 100/- per day in case he did not vacate the premises in question. The
appellant's father, therefore, filed the suit in the CiVil Court which after his
death has been continued by the present appellant for permanent injunction
restraining the respondents fron1 interfering with his right of storing and selling
dry Mahaprasad in the suit premises. According to the plaintiff the permanent lease was grahted to him by the Raja DibyaSingba and tnat since he was
continuing to pay the rent regularly he was entitled to continue in the suit
premises from generation to generation. The respondents contested the suit o~
the ground that it was beyond the eompetence' of Raja of Puri as, Manager ot
the temple to grant a permanent lease and that, therefore, the Sanad was ineffectual, invalid and inoperative. and conferred no rights on the appellant and
his ancestors which W<Juld bind the present respohdents.
Secondly, since the
act of storing and selling Mahaprasad at the suit premises constitute a breach
of order and discipline, the respondents under the above statute had right to
ask the appellant to vacate. Thirdly what was granted by the Sanad was a
licence and not a lease.
The triai court dismissed the suit. However, an appeal was allowed.
The
High Court accepted the second appeal and dismissed the suit.
In an appeal by special leave it was contended by the appellants :-
(!) The suit property did not form part of the temple.
(2) The Sanad granted a permanent lease of the suit property and not
merely a licence, and therefore the _appellant had an indefeasible
right of storing and selling Mahaprasad.
Dismissing the appeal,
HELD : (1) Section 2(d) of the Puri Sri Jagannath Temple (Administra·
tion) Act, 1952, defines temple as including the temple of Lord Jagannath of
Puri, other temples within its premises and all other appurtenants and subordinate shrines, other sacred places and tanks and any additions which may be
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made thereto after commencement of the Act. Records of ri&hi! prepared
under the said Act also include the suit premises within the meaning of temple.
[!04 HJ
(~) .It is ~ow ':"ell settle<:\. by a c~te~a of decisions of the Supre111e Court
that 1t is the creation of an interest 1n immovable property that distinguishes
a lease from a licence. The intention of the parties is the real test for ascertaining the character of a document. At one time it was thought that the
test of exclusive possession was infallible and if a person \Vas given exclusive
possession of a premises it would conclusively establish that he was a lessee.
However, the result of the subsequent cases is that although a person who is
let into exclusive possession in prima facie to be considered to be a tenant.
nevertheless he will not be held to be so if the circumstances negative anv
intention to create a tenancy. To ascertaih ·whether a document creates ·a.
licenc.e or lease the substance of the document must be preferred to the form
(Entire English and Indian case. Law reviewed).
[105 D.H, 106.A·, D]
(3) A careful perusal of the recital in the Sanad, which does not reveal
the identity of the plot with precision~ would show that the Sanad did not
create any interest in the rooms in ~question in favour of the grantee.
The
Sanad also did not confer the right of exclusive possession of the premises. It
is also evident from the right of "Oak.hale Khas" of the respondents in the
suit property as also from the proved facts that the Sarghara was not kept open
by the temple authorities from mid·night to 6 a.m. during which interval the
plaintiff could in no case occupy it nor could he have access to it. It is proved
that the employees of the Raja of Puri used to clean the refuse etc., which
got accumulated in the suit premises.
The Sanad, therefore, created a licence
and not a lease.
[107 E-Hl
( 4) Even if it i<; assumed that the Sanad created a lease it could not be a
valid lease since the Mohant or manager of a Hindu temple is prohibited from
grantinp-, a p.:rmanent lease except far legal necessity or benefit of the, estate.
In the present case ho such legal necessity or benefit of
est~te has
been:
proved.
[108 B-E]
ClV!L APPELLATE JURISDICTION : Civil Appeal No. 491 of 1975.
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Appeal by Special Leave from the Judgment and Order dated the
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24th June 1974 of the Orissa High Court in Second Appeal No. 8 of
1971.
Gobind Das and B. Parthasarthi, for the Appellant.
Santosh Chatterjee and G. S. Chatterjee, for the Responde!Jit.
The Judgment of the Court was delivered by
JASWANT SINGH, J.-'-This appeal by special leave which is directed
against the judgment and decre~ dated June 24, 1974, of the High
Court of Orissa at Cuttack reversing the judgment ane decree dated
September 23, 1970, of the first appellate court which in turn reversed
the judgment and decree dated April 10, 1970, of the Trial Court
relates to the controversy regarding the appellants' right to store and
sell dry 'Mahaprasad' in the suit premises consisting of two pucca
rooms standing on plot No. 167 in 'Bihar Bedha' (outer compound)
of the Hoary Holy public temple of Lord Jagannath Ji in Puri (hereinafter referred to as 'the Temple'), which to use the ianguagc of the
illum;nating and instructive preamble of Shri Jagannath Temple Act,
1954 (Orissa Act No. 11 of 1955) (hereinafter referred to as 'the
Act') has ever since its inception been an institution of unique national
importance, in which millions of Hindu devotees from regions far and
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SRIDHAR v. JAGAN NATH TEMPLE (Jaswant Singh, J.)
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wide have reposed their faith and belief and have regarded it as the
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epitome of their tradition and culture.
The facts giving rise to this appeal are : On August 7, 1969, one
Gopal Suar, since deceased, who was the father and predecessor-ininterest of the present appellants describing himself as sevak of the
Temple brought a suit in the C?u!'.1 of. the Mu~sh!, Puri, being suit
No. 160 of 1969, for permanent m1unctlon restrammg the respondents
herein from interfering with his nght of storing and selling dry 'Mahaprnsad' in the suit premises.
The case of the original plaintiff was that by means of 'Sanand'
(Exhibit I) Raja Sri Dibyasingha Deb, the then Superintendent of the
Temple, granted to his great grandfather, Gangadhar Suar, a permament lease of the site on which the two suit rooms stuod on an annual
rent of Rs. 7 /-; that it was provided in the 'Sanand' that the grantee
or lessee would be entitled to enjoy the site from generation to generation and in case a permanent structure was constructed thereon, the
rent would be enhanced to Rs. 14/- per year; that as a result of the
dea:th of his great grandfuther, Gangadhar Suar, of his grandfather,.
Bela Suar, and of bis father, Chakhi Suar, he had become the sole
owner of the property; that a few days after the commencement of the
lease, two permanent pucca rooms for storing and selling 'Mahaprasad'
were constructed by his great
grandfather, Gangadhar Suar,
who
according to the stipulation contained in the aforesaid 'Sanand' became
liable to pay an annual rent of Rs. 14/-; that since the commencement
of the lease, his ancestors had from generation to generation been using
the suit property as a store room and as a shop ior selling dry 'Mahaprasad' in their capacity as tenants of the Raja of Puri who was the
Superir;tendent of the Temple and the said right of his had been
acknowledged and duly recorded in the record of rights; that ever since
the taking over of the management of the Temple by the Government,
he had been paying annual rent as per terms of the lease to the resrondents who had accepted him as a tenant; that he had been occupying and enjoying the suit property as before without any Jet or hinderence either by the respondents or by their predecessor-in-interest; that
on August 1, 1969, his son intimated to him that respondent No. 2
had, by means of notice dated July 31, 1969, called upon him to close
the shop on pain of daily fine of Rs. 100/-, as in tbc opinion of the
respondent, he had been using the land in inner Bedha of the Temple
for storage and sale of 'Mahaprasad' which adversely affected the
discipline and dignity of the Temple; that on being so informed, he
personally approached respondent No. 2 and represented to him that
he was the permanent lessee of the suit property and had acquired indefeasible right of storing and selling 'Mahaprasad' thereon and the
respondents could not interfere with that right but his representation
fell /lat and respondent No. 2 threatened to close his shop forcibly,
to impose penalty on him, and to dismiss him from the 'seva'; that
after sometime, respondent No. 2 served him with another notice iJnposing an accumulated penalty of Rs. 4.600/- at the rate of Rs. 100/-
per diem and that there being no provision in the Act empowering the
respondents to do any of the aforesaid things, '.he<r action was arbitrary, illegal and without jurisdiction.
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The rnit was_ vigorously contested by the respondents. While denying the grant of the open site to the plaintiff's ancestor, Gangadhar
Suar, as alleged, as also the construction of two pucca rooms by the
latter and the storage and sale thereon of 'Mahaprasad' by the plaintiffs' ancestors, the respondents averred inter alia that the Raja of
Puri bcmg merely a Superintendent or a Manager of the Temple, it
was beyond his competynce to transfer a portion of the Temple permanently in favour of any individual and the 'Sanand' set up by the plaintiff was ns such ineffectual, invalid and inoperative and did not confer
any right, title or interest on him or his ancestors ana was not binding
on the respondents; that according to the
established
custom and
usa~e oi the Temple, 'Mahaprasad' could not be stored and sold in
a 'Saraghara' but was to be sold in Anand Bazar--thc place specifically
set apart for the purpose, and that since the plaintiff had been committing a breach of discipline and violating the orders of the respondents by storing and selling 'Mahaprasad' in the 'Saragharn' standing
on plot No. 167 (which had been recorded in the record of rights as
'khas dakhali' land of the respondents and was never
intended for
storage and sale of 'Mahaprasad') and was thus acting in a manner
derogatory to the dignity of the Temple, the respondents in whom the
governance and administration of the Temple and its
endowments
vested under section 5 of the Act were competent to take action under
sections 21 (A) and 30(A) of the Act.
After framing the necessary issues and
recording
the evidence
adduced by the parties, the Trial Court dismissed the suit holding that
as sections 15 and 30(A) of the Act cast statntory obligation on the
respondents to ensure maintenance of order and discipline and proper
hygienic conditions in the Temple and proper standard of cleanliness
and purity of the offerings made therein, they could not be restrained
by a permanent injunction from stopping the plaintiff to sell 'Mahaprasad' at a place other than the one specified for the purpose.
On
appeal, however, the Sub-Judge (Additional District Magistrate) Puri,
decreed the suit. Aggrieved by this decision, the respondents preferred
an appeal to the High Court which accepted the same and dismissed
the suit
Connsel for the awellants has nrged before us that the suit property did not form part of the Temple; that the transactions evidenced
by 'Sannnds' (Exhibits I & II) issued by the Raja of Puri as Superintendent of the Temple in exercise of his right of superintendence and
management of the Temple amounted to a permanent lease of the suit
property and not merely to a licence, a•nd that the appellants had an
indefeasible right of storing and selling Mahaprasad in the suit Sarag11ara.
We shall deal with these contentions seriatim.
Regarding the first contention raised on behalf of the appellants,
we may observe that according to section 2(d) of Act No. XIV of
1952 called the Puri Shri Jagannath Temple
(Administration) Act,
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1952, 'Temple' means "the Temple of Lord Jagannath of Puri, other
temples within its premises, all their
appurtenant and
subordinate
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shrines, other sacred places and tanks and any additions which may be
made thereto after the commencement of the Act". It may also be
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SRIDHAR v. JAGAN NATH TEMPLE (Jaswant Singh, J.)
105
mentioned that pursuant to section 3 of that . .\ct, a Special Officer
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with prescribed qualifications was appointed by the State Government
for preparation of the consolidated
record of rights ~nd duties of
different sevaks and pujaries and other persons
connected with the
seva, puja or management of the Temple as also for preparation of a
list of the immovable properties endowed to Lord Jagannath Temple
and the extent of the premises of the Temple and what it comprises.
In the report prepared by the said Officer which was published in the
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Orissa Gazette (Extraordinary) and is final and entries whereof cannot
be questioned except in the manner provided in section 5 of that Act,
it is recorded that the Temple of Lord Jagannath occupies an area of
10 acres and its premises include all appurtenant and subordinate
shrines and the outer and inner compounds and that the suit plot No.
167 lies in the 'Baisi Pahacha' area in between the inner and outer
compounds of the Temple and that access to it is through the main
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gate i.e. 'Singhadawara' (lion's gate) of the Temple. It is, therefore,
clear beyond any manner of doubt that the suit premises form part of
the Temple.
The first contention of counsel for the
appellants is,
therefore, repelled.
For a proper appreciation of the second contention, it is necessary
to bear in mind the essential difference between a lease and a licence.
It is now well settled by a catena of decisions of this Court that it is
the creation of an interest in immovable property tbat distinguishes a
lease from a licence. Reference in this connectiot1 may be made with
advantage to the decision of this Court in Associated Hotels of India
Ltd v. R. N. Kapoor(') where Subba Rao, .J. (with whom Das, J.
agreed) observed as follows :-
"If a document gives only a right to use the property in
a particular way or under certain terms while it remains in
possession and
control of the owner thereof, it will be a
licence. The legal possession, therefore, continues to be with
the owner of the property, but the licensee is permitted to
make use of the premises for a particular purpose. But for
the permission, bis occupation would be unlawful. It does
not create in his favour any estate or interest in the property.
There is, therefore, clear distinction between the two concepts.
The dividing line is clear though sometimes it becomes very
thin or even blurred.
At one time it was
thought that the test of exclusive possession was infallible
and if a person was given exclusive possession of a premises,
it would conclusively establish that he was a lessee.
But
there was a change and the recent trend of judicial opinion
is reflected in Errington v. Errington 1952-1 All ER 149,
wherein Lord Denning reviewing the case law on the subject
summarizes the result of his discussion thus at p. 155 :
The result of all these cases is that, although a person
who is let into exclusive possession is, prima facie, to be considered to be tenant, nevertheless he will not be held to be sa
(1) A. I. R. 1959· S. C. 1262
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if the circumstances
negative any
intention to create a
tenancy".
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"The Court of Appeal again in Cobb v. Lane 1952-1
All ER 1199, considered the legal position and laid down
that the intention of the parties was the real test for ascertaining the character of a document. At p. 1201, Somervell
L.J., stated :
" .... the solution that would seem to have been found
is, as one would expect, that it must depend on the intention
of the par.ties".
Denning L.J. said much to the same effect at p. 1202 :
"The question in all
these eases is one of intention:
Did the circumstances and the conduct of the parties show
that all that was intended was that the occupier should have
a personal privilege with no interest in the land?"
The following propositions may, therefore, be taken as
•veil-established :
(I) To ascertain whether a document
creates a licence or lease, the substance of the document
must be preferred to the forms; (2) the real test is the intention of tlie parties-whether they intended to create a lease
m a licence; ( 3) if the document creates an interest in the
property, it is a lease; but, if it only permits another to make
use of the property, of which the legal possession continues
with the owner, it is a licence; and (4) if under the document a party gets
exclusive
possession of the
property,
'pnma facie' he is considered to be a tenant but circumstances may be established which negative the intention to
create a lease".
Again in Qudrat Ullah v.
Municipal Board,
Bareiliy(')
this
Court observed :-
"There is no simple litmus test to distinguish a lease as
defined in s. 1 05, Transfer of Property Act from a licence
as defined in s. 52, Easements Act, but the character of the
transaction turns on the operative intent of the parties.
To
put it pithily, if an interest is immovable property; entitling
the transferees to enjoyment, is created, it is a lease; if permission to use land without right to exclusive possession is
alone granted, a licence is the legal result."
Then again in Board of Revenue v. A. M. Ansari(') this very
Bench while approving the observations made by Lord Shaw while
delivering the judgment of the
Board in
Kauri Timber Company
Limited v. The Commissioner of Taxes(') held that in order that an
(1) [197412 S. C.R. 5.10.
(2) [1976] 3 S. C. R. 661.
(3) [1913] A. C. 771 (776).
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SRIDHAR v . . TAGAN NATH TEMPLE (Jaswant Singh,!.)
I 0 7
aoreement can be said to partake of tjle character of lease, it is necess;ry that the grantee should have obtained an interest in and possession
of land. The following observations made therein are apposite :-
"A li~ence does not create an interest iu the property to
which it relate.s while a lease does. There is in other words
tral!lsfer of a right to enjoy the property in case of a lease.
As to whether a particular transaction creates a lease or a
licence is always a question of intention of the parties which
is to be inferred from the circumstances. of each case.
For
the purpose of deciding whether a particular grant amounts
to a lease or a licence, it i~ essential, therefore, to look to
the substance and essence of the agreement and not to its
form."
Bearing in mind the above observations, let us now scrutinize the
terms of Sanand (Exhibit-I) which reads thus :-
"Order hereby is issued to the Parichims Karjees ( Officers) of the temple as follows :-
One Gangadhara Suar of Kundhaibenta Sahi has filed an
application
before the
Raja for opening a 'Sera Ghara'
t store room of Mahaprasad) at the top step of twenty two
steps adjoining the inner compound of the temple and the
Eastern Gate Way having space of 10 cubits of length toward.s south and width of '10 cubits.
It is ordered that he is permitted to open the said
store room with hereditary right on payment of one gold
Mohara as Salami and rupees seven as annual rent. If he
at any time constructs a pucca house, he shall P<ll' rupees
fourteen as annual rent."
A carefu1 persual of the recitals in the Sanand (which does not
reveal the identity of the plot with precision) would show that the
Sarranu did not create any interest i'1 the sLe in question in favour of
the plaintiff's great grandfather. It -merely permitted him to open a
'Sarnghara' which meant a room for storing articles for the sole purpose of preparing Bhog for the three presiding deities.
The Sanand
did not also con.fer the right of exclusive possession of the suit property
on the grantee. This is evident from the right of 'dakhale khas' of
the respondents in the suit property as also from the proved fact that
'Saraghara' was not kept open by the Temple authorities from midnight to 6.00 A.M. during which interval, the plaintiff could in no
case occupy it nor could he have access to it.
ft has also been found
to have been established from the plaintiff's evidence itself that the
employees of th.e Raja of Puri used to clean the refuse etc. which got
accumulated before the suit 'Saraghara'.
Thus none of the elements
of lease can .be said to be present in the instant case.
In M. N.
Chubwala v. Eide Hussain Sahib(') this Court rejected the claim of
holdern of certain stalls in a nmrket that they were lessees and not
(I) A. I. R. 1965 S. C. 610.
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licencees thereof on the ground that they had no right to us them after
the closure of the market at night and the responsibility of cle~aing and
disinfecting the stalls and closing the market at night lay on the landlord
and not on the stall holders.
No help can be derived by the appellants from Exhibit-II which
relates to a quarrel in 'Kotha Bhog Nities' and is not relevant for the
purpose with which we are concerned at the present stage.
Now assuming without holding that the Sanand amounted to a
lease, it cannot even then be held to be valid as permanent alienation
of the temple debutter property is prohibited.
The position is stated
thus at page 489 of Mulla's Treatise on Principles of Hindu Law (11th
Edition) :-
"The Rower of a shebait or a mohunt (..) alienate debulter
property is analogous to that of a manager for an infant
heir as defined by the Judicial Committee in Hunooman
Pershad v. Mussamat Babooee 6 M.I.A. 393.
As held in
tba t case, he has no power to alienate
debutter property
except in a case of need or for the benefit of the estate. He
is not entitled to sell the property for the purpose of investing the price of it so as to bring in an incoine larger than
that derived from the property itself.
Nor can he, except
for legal necessity grant a permanent lease of debutter property, though he may create proper deri\ative tenures and
estates conformable to usage."
Jn the present case, the position of the Raja of Puri who granted
the Sanand (Exhibit-I) was merely that of a shebait.
He could not.
have granted a permanent lease of the property in question to the
great grandfather of the plaintiff without necessity or without benefit
to the estate which have not at all been made out in this case.
Again th(> lease being a permanent one for a fixed rent cou!d not
have been grant.ed at all by the Raja of Puri. Reference in this connection may usefully be made to page 931 of Mayne\ Treatise on
Hindu Law (1 lth Edition), where the position 1s stated a< follows
"It is beyond the powers of a manager to grant a pcrmanrnl lease at a fixed rent in the absence of unavoidable necessi•y; for, to fix tbe rent, though adequate at the time, in oerpetuity in lieu of giving the endowment the benefit o[ an augn~.entation of a variable rent fro1n time to time \Vould be a
breach of duty on the part of the manager.
In Pala11iappa
Chetty v. Streemath Deivasikamony (1917) 44 I.A. 147.
Lord Atkinson observed: "Three authorities have been cited
which establish that it is a breach of duty on the part of a
shebait, unless constrained thereto by unavoidable necessity,
lo grant a lease in perpetuity of debutter lands at a fixed rent.
however adequate that rent inay be at the time of granting,
by reason of the fact that, by this means, the debutter estate
Cl) 44 I. A. 147.
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SRIDHAR v. JAGAN NATH TEMPLE (Jaswant Singh,!.)
109
is deprived of the chance it would have, if the rent were
A
variable, of deriving benefit from the enhancement in value
in the future of the lands leased."
In Palaniappa Chetty & Anr. v.
Deivasikamony Pandara(')
alluded to in the above quoted passage, it was also held :-
·'A permanent lease of temple lands at a fixed rent, or
rent free for a premium, whether the lanc!s are agricultural
!ands or a building site, is valid only if made for a necessity
of the institution. It is not justified by a local custom, or by
a practice of the institution, to grant lands in that manner .
The phrase "benefit of the estate'', as used in the deciB
sions with regard to the circumstances justifying an alienaC
tinn by the manager for an infant heir or by the trustee of a
reiigious endowment cannot be precisely defined. but includes
the preservation of the estate from
extinction, its defence
against hostile litigation, its protection from inundation, and
similar circumstances."
The present case is, in our opinion, fully covered by the decision
D
in Shibessouree Debia v. Mothooranath Acharjo( 2 ) where it was laid
down a~ a general rule that apart from unavoidable necessity to create
a new and fixed rent for all time,. though adequate at the time, in
lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time would be a breach of duty in the mohunt.
Thus viewed from any angle the 'Sanand' could not be held to be
E
any more than a licence and could not clothe the ancestors of the
jllaintiff or the plaintiff with the status of a lessee.
This takes us to the last contention .raised before us by counsel for
the appellants which is also devoid of substance. A bare perusal of
Exhibit-I is enough to show that it does not confer any right of selling
'Maha;irasad' on the plaintiff or on his ·legal representatives. ExhibitF
II cannot also be usefully pressed into service by the appellants as it
relates to the sale of 'Rahani Bhog', and not of 'dry Mahaprasad'.
Tims all the contentions raised by counsel for the appellants fail.
For the foregoing reasons, we affirm the judgment of the High Court
and dismiss the appeal with costs.
The appellants are, however, as
mutualy agreed to between the parties,
given one month's time to
vacate the premises.
The cumulative penalty of Rs. 4,600/· to which
the appellants have been subjected also being excessive is reduced to
Rs. 500/·.
P.H.P.
Appeal dismissed.
(I) 44 I. A. 147
(2) 13 M. I. A. 270.
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