Kanhaiya Singh, J.:— This is an appeal by the plaintiff from the judgment and decree of the District Judge of Patna dated 30-6-1952, reversing a decision of the Additional Subordinate Judge, Patna, dated 1-5-1951, given in a suit instituted by the plaintiff appellant for a declaration that the perpetual lease dated 6-9-1944 executed by Mahant Parsuram Dass in favour of the defendants was void and legally ineffectual and for recovery of possession of the same. Mahant Parsuram Dass was the shebait of the ??? Maheshwar Thakurbari, Gaya.

2. The plaintiff, Mahant Jairam Dass was initiated by him as Chela, and after his initiation he renounced the world and became an ascetic and dedicated his properties consisting of 5 annas 4 pies milldam interest in village Salempur Kura, tauzi No. 17435 in the district of Patna, to the deities installed and consecrated in the said Thakurbari by a registered deed (Samarpannama) dated 27-6-1937. By this dedication he also imposed a condition on the shebaits of the Thakurbari that diey were to be absolutely debarred from making any sort of alienation. The deities through their shebait Mahant Parsuram Dass entered into possession of the dedicated properties. Notwithstanding the restraint on the power of alienation, Mahant Parsuram Dass executed in favour of the defendants, in consideration of a salami of Rs. 5000, a registered deed of perpetual lease dated 6-9-1944 leasing out to them the dedicated properties and also 4 decimals (1 katha) of Jagir land, out of 17 kathas 10 dhurs comprised in survey plot No. 643 appertaining to khata No. 128 situate in mauza Kasthua at an annual rental of Rs. 40.

3. The entire leasehold properties are situate in the district of Patna, with the exception of the aforesaid 1 katha Kasthua land in the district of Gaya, it is said that the defendants obtained possession of these properties. Due to old age and infirmity Mahant Parsuram Dass retired from Mahantship and the management of the properties of the Thakurbari and appointed the plaintiff, Mahant Jairam Dass, his Chela, as his successor and shebait of the Thakurbari, by a registered instrument dated 20-5-1947.

4. The plaintiff assumed the management of the properties as shebait. A year later on 2-5-1948 Mahant Parsuram Dass died. On 9-7-1949 the plaintiff instituted the present suit for avoidance of the perpetual lease and for recovery of possession of the suit properties. The case made out by the plaintiff is that the perpetual lease was legally invalid and did not pass a good title to the defendants, because, first, there was fraud on the registration, inasmuch as the land of 4 decimals in the district of Gaya was fraudulently inserted in the deed to obtain registration thereof in the district of Gaya; second, by the deed of dedication Mahant Parsuram Dass, his Guru, and the previous shebait, had no power to alienate the properties, and, third, there was no justifying legal necessity.

5. The defendants contested the suit and traversed all the allegations of the plaintiff. Their defence was that there was sufficient legal necessity to justify the alienation, that there was no fraud on registration, as the land of 4 decimals in the district of Gaya was really conveyed to them and they entered into possession and that the condition imposed by the Samarpannama placing limitation on the power of disposal by the Mahant was void and unenforceable at law.

6. Both the Courts below concurrently held that there was no fraud on registration and that the Gaya property was intended to be conveyed and was in fact conveyed to the defendants. On the questions of legal necessity and the power of the Mahant there was a divergence of opinion between the Additional Subordinate Judge and the District Judge, the former finding in favour of the plaintiff and the latter in favour of the defendants, with the result that the suit was decreed by the additional Subordinate Judge and was dismissed on appeal by the District Judge.

7. The plaintiff has come up in Second Appeal.

8. Mr. G.P Das appearing for the plaintiff appellant attacked the validity of the permanent lease in favour of the defendants on three grounds: (1) fraud on registration, (2) restraint on the power of the Mahant to alienate the properties, and (3) absence of legal necessity.

9. The first ground taken by Mr. Has may be disposed of in a minute. Both the Courts have concurrently held that there was no fraud on registration. The contention of Mr. Das was that this small piece of land out of a bigger plot No. 642 having an area of 17 kathas 10 dhurs, undefined by boundaries, could not have been intended to be conveyed. The smallness of area and absence of description by boundaries do not necessarily lead to the inference of fraud in the matter of registration. It is purely a question of intention. According to the unanimous, finding of the Courts below, the defendants got possession of this land.

10. The plaintiff did not allege in the plaint that the possession of this land remained all along with his Guru. The combination of title and possession in the defendants is the surest indication of real and actual transfer of this land to the defendants. The latter have given satisfactory explanation why this small piece of land situate in the district of Gaya was included in the deed of lease. It lies near the junction of the Grand Trunk road and another road, and the defendants had a mind to start a shop there which, of course, could not materialise due to illness of the members of the family.

11. There is no evidence to show that there was no intention to lease out this property to the defendants. Further the question of fraud on registration is a question of fact, and an express issue was raised upon it. The first Court found this issue in the affirmative, and the appellate Court concurred with the finding of the first Court on this point. I see no sufficient reason why this concurrent finding upon a pure question of fact should not be accepted. This contention, therefore, must be overruled.

12. The second contention of Mr. Das raises no doubt an important question of law. The Heed of dedication dated 27-6-1937 imposed a limitation on the power of disposal of the dedicated properties by the Mahant in the following terms:

“The person who shall be the mahanth and shebait of the said Thakurwari neither has nor shall have nor can have any right to transfer or encumber the aforesaid properties. If he does contrary to it, it shall be null and void in face of this deed.”

13. The contention of Mr. Das is that this lease in favour of the defendants was in excess of the power conferred upon the shebait by the deed of dedication and was, therefore, null and void. This contention of Mr. Das is contrary to the express provision contained in Section 10 of the Transfer of Property Act which provides as follows:

“Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him; Provided that property may be transferred to or for the benefit of a woman (not being a Hindu, Mahammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.”

14. There is no question of creation of lease here. There was absolute dedication of the properties of the deities subject to a condition that the shebait of the deities for the time being shall not have power to alienate or encumber the dedicated properties. On the principles enunciated in this section the condition in the deed of dedication imposing limitation on the shebait's power of disposal is manifestly void. The reply of Mr. Das is that a gift in favour of a Hindu idol is not governed by S. 10. He referred in this connection to S. 5 which defines “transfer of property”.

15. As laid down therein “transfer of property” means an act by which a living person conveys property, in the present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons. “Living person”, as defined by this very section, includes a company or association or body of individuals, whether incorporated or not. It does not clearly say that a living person includes also a Hindu idol.

16. The submission of Mr. Das is that though Hindu deities may be juristic persons capable of acquiring and holding property and of vindicating legal rights, yet they are not living persons, as envisaged in S. 5, and, therefore, S. 10 has no application in such a case. This view of Mr. Das is supported by a decision of this Court in Harihar Prasad v. Siri Gurugranth Saheb, AIR 1930 Pat 610. A juristic person is not necessarily a living person, and, I think, the view pressed by Mr. Das is right. Mr. Lal Narain Sinha for the respondents, with his usual candour and fairness, did not contest the construction put by Mr. Das on S. 10 read with S. 5.

17. The argument advanced by him, however, is that although S. 10 in terms does not govern a dedication in favour of a Hindu deity, the principle enunciated therein is a principle of justice, equity and good conscience and should govern even transactions not coming within the four corners of the Transfer of Property Act. He argued that the propriety of restraint on power of alienation should be judged in the light of this well-recognised equitable principle having regard to the circumstances of each case even where, strictly speaking, S. 10 has no application. In support of the contention, he referred to several decisions, which I shall presently discuss. After hearing the learned Advocates I am satisfied that the contention of Mr. Sinha is correct.

18. The first case relied upon by him is the case of Chundi Chum Barua v. Sidheswari Debi, 15 Ind App 149 (PC). The dispute in his case arose before the enactment of the Transfer of Property Act. The question we have to consider in this case did not pointedly arise in that case. Nevertheless, their Lordships of the Privy Council laid down a legal principle which is of general application. In that case the plaintiffs who were the appellants before the Privy Council claimed possession of four villages on the ground that the Vijni Raj estate in Assam, the holder of which was the respondent before the Privy Council, had assigned to their ancestors seven villages by a deed of 1778 A.D, three of which were made over to them then and there, and as regards the remaining four, the deed provided that if ever the descendants of the grantor failed to provide the grantees and their descendants with the means of maintenance then those descendants of the grantees who may be living at that time will be entitled to take khas possession of the remaining four villages.

19. Their Lordships of the Privy Council held that the conditional grant of the four mouzahs to persons yet unborn, who may happen to be the living descendants of the grantees named, at some future and indefinite period, upon the occurrence of an event, which may possibly never occur, was altogether void and ineffectual. As regards the power of the owner to alienate those villages which were subject of the aforesaid conditional grant, their Lordships observed as follows:

“If it prevents the owner from alienating his estate, discharged of such future interest, before the emergence of the condition, and that event may possibly never occur, it imposes a restraint upon alienation which is contrary to the principles of Hindu Law.” The case reported in Ram Bahadur v. Jagannath Prasad, 3 Pat LJ 199 : (AIR 1918 Pat 469), concerned the construction of a will, the disposing words of which were to the following effect:

“If on the death of my wife and my niece there be living a son and a daughter born of the womb of my said brother's daughter, then two thirds of the movable property will belong to the said son and one-third to the daughter. But as regards the immovable property none shall have the least right of alienation. They will of course be entitled to enjoy the balance left after payment of rent etc.”

20. Earlier in the deed with respect to the disposition in favour of his niece it is recited:

“After the death of my wife all these villages and rented houses will remain in the possession of my deceased brother's daughter, without having any right to transfer the same”.

21. The Full Bench of the Patna High Court construed the words “without power to alienate” in respect of the niece's estate as being in “the nature of surplusage; that is to say, the testator had in his mind the ordinary recognised restriction upon alienation which would apply independently of any provision in the Will. As regards the general expression in the will to the effect that “none shall have the least right of alienation”, their Lordships observed as follows:

“…….in the first place it is not certain that the testator meant by the word ‘none’ in this sentence to refer to any person other than the son and daughter of the niece who had beer, mentioned in the immediately preceding sentence. So far as they are concerned, the gift in their favour being obviously an absolute gift, the condition was void. We are also not disposed to attach too much importance to the use of the word ‘least’ in this seatence. We are of opinion that the will must be read as a whole, and if so read it is quite clear that the testator intended that his estate should be entirely represented in the first instance by his widow, next by his niece, and after the death of his niece, by the niece's son and daughter.

22. It is inconceivable that he should really have intended to have prevented any of these persons from alienating portions of the estate in the event of an occasion arising such as is described by the tend ‘legal necessity’. The principle of repugnancy hag been applied in a large series of precedents which deal with the more simple cases in which an absolute estate had been created; but where a completely representative estate has been created the principle in our opinion should be applied. In the case of Jatindra Mohan Tagore v. Ganendra Mohan Tagore, 9 Beng LR 377, the Privy Council said that where a gift is in terms of an inheritable estate with superadded words restricting the power of transfer the restriction would be rejected as being an attempt to take away that which the law attaches to the estate which the giver has sufficiently shown his intention to create though he adds a qualification which the law does not recognize.

23. Adopting the expressive words of the Court of Exchequer Chamber in a judgment which is the foundation of the rule of repugnancy (Perrin v. Blake, (1770) 4 Burr 2579) the indelible landmarks of property, irrevocably established by the well weighed policy of, the law cannot be exceeded or transgressed by any intention of the testator be it ever so clear and manifest. Where a testator is found to have intended to create a woman's estate, an estate that is to say which is entirely representative, though restricted, an absolute prohibition of alienation even for the purposes of the preservation of the estate should be regarded as coming within the principle above laid down and rejected as being an attempt to take away that which the law attaches to the estate which the giver has sufficiently shown his intention to create.

24. It is however the fact that to so construe the Will would not be to defeat the real intention of the testator which clearly was to provide simultaneously for the maintenance of his niece and for the perpetuation of his name. It is precisely with this in view that the power to alienate in the case of necessity has been grafted by judicial decision upon women's estates treated in the texts as inalienable except for religious purposes. The power has been grafted with a view either to secure the maintenance and other objects desired or to preserve the estate and the name of the last male holder.”

25. In this case the question of interpretation of S. 10 was not involved, but on the grounds of general principle of Law their Lordships held the restriction against alienation as void.

26. In the case of Nand Singh v. Pratap Das, AIR 1924 Lah 674, the principle embodied in S. 10 was applied although the application of the Transfer of Property Act did not extend to the Punjab. In that case certain lands were granted on the condition that the donees will have no power of alienation. This condition was held as void in the following terms:

“The condition here imposed was an absolute restriction in perpetuity on every sort of alienation for any purpose by the donees of the land, and the fact that agriculturists as a whole are restricted by certain definite rules from disposing of their ancestral land is no reason why an absolute bar of this sort should be recognised and enforced……..S. 10 embodies an equitable principle which applies to the Punjab.”

27. In the case of Akram Ali v. Durga Prosonna Roy, 10 Ind Cas 489, a Division Bench of the Calcutta High Court, presided over by Mookerjee and Coxe JJ., pointed out that the rule embodied in Section 10 of the Transfer of Property Act was a reproduction of a pre-existing law on this point. In that case the landlord had made settlement of certain lands by means of kabuliats which contained a condition that the lands were non-transferable. The plaintiffs who brought the suit for possession after ejecting the landlords were the transferees from the original settles. The landlords resisted the suit on the ground that the settlees had no power of alienation. Their Lordships, on a review of several cases, negatived this defence and observed as follows:

“…….it has been contended that as there was a covenant in the Kabulyats against alienation the plaintiff as transferee has acquired no enforceable title against the landlord. It must be pointed out, however, that no right of re-entry was reserved in the leases………. it is clear that the assignment was operative, notwithstanding the covenant in question.

28. It is obvious from the rule embodied in Section 10 of the Transfer of Property Act, which in substance reproduces the pre-existing law on this point, that a covenant against alienation in a permanent lease, when no right of re-entry is reserved, is not operative. The principle is that the covenant is inconsistent with the interest sought to be created by the instrument…….the covenant in this case must be taken to be inoperative.”

29. The equitable principle of law enacted in S. 10 governs the restraint upon the power of alienation independent of the provisions of the Transfer of Property Act. This was a well-recognised and well-settled principle of law even before the Transfer of Property Act came into force, and by this enactment the principle already in force was given a statutory recognition. This principle is based upon very sound reasons. It is manifest that any covenant against alienation is repugnant to the nature of the estate created by permanent conveyance of property by sale, gift or otherwise. For example, one may take the case of permanent dedication of properties to deities, as in the present case.

30. The primary, nay, the sole object, of this dedication is performance of services and worship of the deities. As a necessary corollary to this paramount object of dedication is the power of a shebait or a mahant in charge of the dedicated property to alienate wholly or in part such property for the purpose of keeping up the religious worship and for the benefit and preservation of the property. It is well-settled law that a mahant or shebait has power to incur debts and alienate the dedicated property either by sale or mortgage “in a case of need or for the benefit of the estate”. It is, therefore, recognised that for unavoidable necessity the mahant or the shebait in charge of the property for the time being can create even a permanent lease of the debutter property.

31. If the shebait is given no power to make any alienation even in the case of existing necessity, it is easy to see that the very object of dedication will be frustrated and the worship of the deities may suffer. It is plain, therefore, a gift to a deity with no power of alienation even where pressing necessity or benefit to the estate demands it will render ineffectual the entire dedication since its consequence will be that the preservation of the property meant to subserve the interest of the deity will prevail over the legitimate interest of the deity—a fact hardly consistent with the intention of the donor and the interest sought to be created by the instrument.

32. It is not difficult to see that in absence of power of alienation the deities in most cases will languish and may eventually vanish, though the gifted property may thereby remain intact. In essence, it is nothing short of giving by one hand and taking by another. It is inconceivable that the donor whose piety and generosity prompted the dedication should really have intended to so restrict the power of shebait or donee as to injure the real interests of the deities for whose sole benefit the gift was made. Having in view the primary object of the dedication it is only reasonable to assume that while imposing limitation on the power of a donee or shebait to alienate the donor had in his mind the ordinary restriction upon alienation as recognised by law which would apply independently of any such condition in the deed.

33. It will be wrong to assume that by generally restricting the power of alienation he intended to abrogate the well established principle of Hindu Law, namely, that a shebait can alienate a debutter property for legal necessity or the benefit of the estate. As pointed out in the case of Ram Bahadur referred to above, the fact is that in a case of this kind it is very easy to use the words “without the power of alienation” in a loose sense, that is to say, to use them in the sense without power of alienation except in the case of recognised legal necessity.

34. It is for these reasons that such covenant against alienation has been considered by authorities as void. In my opinion, the provisions of S. 10 do nothing beyond laying down the well-recognised equitable principle, and this principle applies even to cases which do not directly come within the purview of the Transfer of Property Act. It must be held, therefore, that restriction on the power of the shebait to alienate the dedicated property is void and inoperative and was, therefore, legally ineffectual to invalidate the perpetual lease in favour of the defendants. The contention of Mr. Das, therefore, fails.

35. I now proceed to consider whether the permanent lease in favour of the appellants was justified upon the ground of legal necessity. On this point also we are confronted with the finding of the final Court of fact that there was legal necessity for the lease. Mr. Das, however, contended that this finding was not a legal finding and was against the weight of evidence on the record. I do not think this contention has any force. There is ample evidence on the record to show that there was valid and pressing necessity for creating this permanent lease in favour of the appellants. It is well to remember that this lease was created on acceptance of the premium of Rs. 5,000.

36. The purposes of this money, according to the appellants, were, (1) Rs. 2,000 for repair of the Thakurbari, (2) Rs. 2,575 for redemption of usufructuary mortgages created by the donor himself, that is to say, the plaintiff, (3) Rs. 300 for Ragbhog (worship) of the deities, (4) Rs. 50 paid as earnest money prior to the execution of the deed of lease, and (5) Rs. 75 further paid to the Mahant in cash. The learned District Judge further found that the necessity for the loan of Rs. 2,000 for repairs of the Thakurbari was also established. He further held that out of the premium Rs. 1,870 was required for redemption of two prior mortgages. He accordingly held that the defendants had convincingly proved the existence of legal necessity for Rs. 3,870 out of the total premium of Rs. 5,000.

37. He, however, held that there was no evidence to prove legal necessity for the balance of Rs. 1,130. Since, however, the defendants have succeeded in roving that four-fifth of the consideration money ad been applied towards the satisfaction of valid existing necessity, even if the balance had not been proved to have been taken for legal necessity, there was no ground for setting aside the entire mokarrari patta. So far as the repair of the Thakurbari is concerned, there is ample evidence on the record to establish the existence of this necessity. This evidence has been accepted by the final Court of fact as trustworthy.

38. I may point out that even the learned Additional Subordinate Judge who held against legal necessity has found that the Thakurbari buildings were in a fairly bad condition and needed repairs in 1944, the year in which the permanent lease was made. He was, however, of the opinion that the income of the Thakurbari was sufficient for the execution of the repairs. This conclusion of his was not accepted as correct by the learned District Judge on appeal. On a careful consideration of the entire evidence he held that the Thakurbari property was heavily encumbered and it had no other funds for meeting the then existing legal necessities. This evidence, in my opinion, cannot be taken exception to. It is worthy of note that according to the defendants and as established by the evidence, the plaintiff was entirely responsible for the completion of this transaction, and it was on his representation that the defendants took the permanent lease. It would be recalled that after his initiation as Chela by Mahant Parsuram Dass he was living in the Thakurbari, and, as will appear from his evidence (P.W 2), he was actively associated with the management of the estate of the deities.

39. It was he who had dedicated the properties. He was, therefore, a competent person to speak about the existing necessities of the Thakurbari. The defendants have led evidence to show that they made bona fide enquiries about the legal necessities, and they were satisfied on the materials before them, supplemented by the representation by the plaintiff that these necessities existed. This evidence finds ample corroboration from the fact that this deed of permanent lease (exhibit H) has been attested by the plaintiff himself. If in fact the entire loan was incurred not for the unavoidable necessity of the Thakurbari but for the personal use of the then Mahant, the plaintiff who had endowed the entire property to the Thakurbari would not have willingly consented to the permanent grant of the same property to the defendants.

40. It is well to member that this permanent lease was made in September, 1944. The plaintiff's Guru died in May, 1948. During these four years the plaintiff never questioned the propriety of this lease. In fact, he all along acquiesced in this transaction. Soon after the death of his Guru he commenced this litigation for the annulment of this lease. His conduct in this affair is inexplicable. The lower appellate Court has gone so far as to hold that he was estopped by his conduct from questioning the validity of the lease. Whether or not his conduct amounted to estoppel, I do not propose to express any concluded opinion. The fact, however, is that his part in this transaction lends ample corroboration to the evidence on behalf of the defendants that they made enquiries bona fide and were satisfied that the Thakurbari needed money for its repairs.

41. Thus, the defendants have adduced evidence that there was actually pressing necessity for the loan to execute certain repairs and further that they had made bona fide enquiries. The lender cannot possibly do more than this to discharge the onus that the law casts upon him. It is true that he is bound to enquire into the necessities of the loan and to satisfy himself that it was needed for the benefit of the estate. If he does so enquire and act honestly, then, as laid down by authorities, the real existence of the alleged necessities is not a condition precedent to the validity of his charge, and the lender is not bound to see to the application of the money.

42. In my opinion, it is, therefore, established that Rs. 2,000 was needed for the repairs of the Thakurbari. In the case of Doorganath Roy v. Ram Chunder Sen, 4 Ind App 52, the Privy Council affirmed the validity of a mukarrari patta in respect of the debutter property, because the permanent lease was made to raise money for repair of the temple. Therefore, the legal necessity for the sum of Rs. 2,000 is established beyond doubt.

43. It is common ground that out of the total Nazrana Rs. 1,870 was in fact applied towards the redemption of the prior two mortgages in respect of portion of the debutter property. The contention of the learned counsel is that permanent alienation of the property for redemption of usufructuary mortgages was not justified in law. There is no hard and fast rule that no money can be raised in any case by transfer of property for redemption of prior usufructuary mortgages. Whether or not there was sufficient justification for alienation to redeem prior mortgages depends upon the particular facts of each case.

44. In this case, it has been found that the dedicated property is situate in the district of Patna, whereas the Thakurbari lies in the district of Gaya. There was no effective management and control of the property. The property was heavily encumbered, and due to mismanagement there was hardly sufficient income from it. By execution of the patta an annual income of Rs. 40 was assured, and there was discharge of the debt outstanding against the property. It is impossible to give a precise definition of what is “benefit to the estate”. As pointed out by the Judicial Committee in the case of Hanooman Parsaud v. Mt. Babooee Mundraj Koonweree, 6 Moo Ind App 393 (PC), the preservation, however, of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation, these and such like things would obviously be benefits.

45. The difficulty is to draw the line as to what are, in this connection, to be taken as benefits and what not”. It will be necessary, therefore, to determine on the facts of each case whether any alienation was beneficial to the estate or not. In my opinion, if the property was inconveniently situated, heavily encumbered and unproductive, and if by the alienation an annual income of a definite sum which was more than what was received in the previous years was assured, the alienation may be regarded as benefit to the estate. (See Jado Singh v. Nathu Singh, ILR 48 All 592 : (AIR 1926 All 511)).

46. The test in each case is whether it was a transaction into which a prudent owner would enter in the ordinary course of management in order to benefit the estate. (See Jan Maliomed v. Bikoo Mahio, ILR 7 Pat 798 : (AIR 1929 Pat 130). I think the Guru of the plaintiff acted prudently in granting this mukarrari patta, but for which the Thakurbari would have received no benefit at all. In this particular case, therefore, the alienation must be justified on the ground of benefit to the estate.

47. To conclude, the defendants had established by cogent evidence that there was legal necessity for the mukarrari patta. The contention of Mr. Das must be overruled. In the result, this appeal is dismissed with costs.

48. V. Ramaswami, C.J:— I agree.

R.G.D

49. Appeal dismissed.