Sadasiva Aiyar, J.:— The defendant is the appellant. He obtained permanent lease of a vacant site in the town of Con-jeeveram belonging to a religious trust called “darga” (the burial, place of a Muhammadan saint) and has built a house upon it. The lower Appellate Court found the perpetual lease invalid, as it was beyond the powers of the trustees to grant such a lease and it has decreed ejectment against the appellant allowing him two months to remove the buildings erected on the site. The defendant's contentions in the second appeal are:
(a) That the permanent lease should have been upheld as it was the custom of the darga for many a year to grant permanent leases of the darga sites;
(b) that it was to the advantage of the darga that such a permanent lease should be granted and
(c) that the plaintiff should have been directed to give compensation for the building instead of the defendant being merely allowed to remove the superstructure.
2. The second contention, namely, that it was to the benefit of the darga to grant a permanent lease is a question of fact, and we cannot interfere with the finding of the District Judge that there was no necessity to give a permanent lease and that such a lease was not for the benefit of the darga.
3. As regards the first contention, the general rule undoubtedly is that a permanent lease of a religious trust property is beyond the powers of the trustee.
4. [See Devasigamani Pandarasannadhi v. Palaniappa Chettiar(1).] As regards the custom of the darga, the custom seems to have been begun only about 50 years ago and the custom by which trustees are to exceed their lawful powers cannot be considered a valid custom. Of course, no single trustee and no succession of trustees can create a lawful usage by acts in excess of their legal powers or constituting breaches of trust on their part.
5. As regards the last contention, Mr. T.R Krishnaswami Aiyar for the appellant advanced his arguments in two ways. (1) He argued from the analogy of Section 51 of the Transfer of Property Act that the defendant, having in good faith, built the house, is entitled to be given compensation before he is evicted. (2) He further argued that the plaintiff, having stood by when the house was erected, is estopped from claiming to evict him without paying such compensation. I think the analogy of Section 51 of the Transfer of Property Act cannot be invoked. The Legislature has chosen to grant the right to claim compensation only to the man who makes improvements believing in good faith that he is “absolutely entitled” to the land on which he effects improvements, and not to a person who merely believes that he has got a permanent right of occupancy over a building site. As regards the second contention, the plaintiff is a religious trust, darga represented by its trustees and is not bound by any act or omission of its trustees which constituted a breach of trust. There can, therefore, be no question of estoppel as against the darga. Further the conduct of a landlord who allows a tenant to erect a permanent structure might estop him in three ways in favour of the tenant: (a) it might estop the landlord from denying that the tenant has a right of permanent occupancy, (b) it might estop the landlord from evicting the tenant without paying him compensation, (c) it might estop him from denying the tenant's right to remove the superstructure, that is, from raising the contention that the superstructure having become permanently fixed to the site has become his (the landlord's) property and passes on eviction to the landlord. The first estoppel cannot arise in this case, as the lease itself which allowed a permanent right of occupancy has been found invalid as against the darga. If the trustee has got no legal right to grant a permanent lease to bind the darga, his conduct in allowing the building to be erected can still less constrain the darga to allow a permanent occupancy right to the tenant. The third question need not be considered as the lower Court has allowed the defendant to remove the superstructure and no appeal has been preferred on behalf of the darga.
6. In the result I would dismiss the second appeal with costs, granting, however, the appellant an extension of time till six months from this day to remove the superstructure.
Napier, J.:— I concur.
S.N/R.K
7. Appeal dismissed.