Judgment :- The defendant is the appellant. The suit out of which this second appeal is preferred was filed by the Adheenakarthar of the Madurai Adheenam for a declaration that the perpetual lease dated 29.1.1916 does not ‘bind the plaintiff-Mutt and for possession of suit items 1 and 2 and for profits, past and future. The plaintiff-Mutt is a religious trust. The then Pandara-sannathigal Sri-la-Sri Thirugnanasam-banda Swamigal granted a perpetual lease on 29.1.1916 in respect of item No.1 to one Sadasivam Pillai after receiving a premium of Rs.650/-. The lease amount payable is Rs.12/-per annum. The perpetual lease by the then Pandarasan-nadhigal, according to the plaintiff, will be valid only during the tenure of office of the said Pandarasannadhigal who granted the lease and cannot enure beyond his lifetime. Item No.2 which is Survey No.266/2 is an annexure and addition to plaint item No.1. The heirs of Sadasivam Pillai transferred the perpetual lease on 6.9.1937 to Peria-karuppa Nadar, father of the defendant. The said Periakaruppa Nadar raised a coconut tope in Survey No.266/2, which is a poramboke land, after obtaining licence from the revenue authorities. The defendant wrote a letter to the plaintiff informing him that Survey No.266/1 (2 acres 86 cents) has fallen to his share in a partition. Thereupon, the Madathipathi who succeeded the grantor of the lease (hereinafter referred to as plaintiff) issued a notice asking the defendant to surrender possession and as the defendant repudiated the claim of the plaintiff, the plaintiff had to file the suit. 2. The suit was resisted by the defendant who in his answer contended that item 1 is a waste land and heavy sums had to be invested for reclamation and therefore a perpetual lease was granted by the Pandarasannadhigal and that the transaction was a very prudent transaction and was in the interest of the mutt. His further contention is that Sadasivam Pillai invested a heavy amount in reclaiming the entire area and the defendant’s father obtained the rights from the legal representatives of Sadasivam Pillai and he has improved upon the property. He also contended that his rights over item No.2 is that of a licensee and the Mutt cannot claim it and that the suit is bad for non-joinder of Government as a party in so far as item No.2 is concerned. He also contended that his rights over item No.2 is that of a licensee and the Mutt cannot claim it and that the suit is bad for non-joinder of Government as a party in so far as item No.2 is concerned. It is also stated that the plaintiff himself has received the rents and the acceptance of the rent amounts to an election to affirm the permanent lease made by his predecessor and he is estopped from questioning the transaction. It is further contended that the suit is barred by the law of limitation and that in any event the plaintiff is bound to pay the value of improvements. 3. The Subordinate Judge who is also a trainee District Judge, dismissed the suit of the plaintiff holding that the act of the previous Madathipathi is granting a permanent lease was a prudent act. The appellate Judge held that the lease is not valid beyond the lifetime of the grantor and allowed the appeal in part decreeing the suit for recovery of item No.1, but dismissed the suit in respect of item No.2 holding that the appellant is not entitled to item No.2. The defendant has preferred the second appeal against the decree to the tenant to which the claim of the plaintiff was allowed. The plaintiff has filed the memorandum of Cross-objections. 4. A learned Judge of this Court while admitting the second appeal formulated the following substantial questions of law: 1. Whether an alienation of a Mutt property by a Madathipathi out of prudence for the benefit of the Mutt could be challenged by the successor when the latter had accepted rents from the alienee or persons claiming under him, both as an agent of the previous Madathipathi and as his successor? 2. When a transaction more than 50 years old is sought to be challenged, long after those who could speak about it had passed away, will not the presumption of law laid down in 64 L.W.525 be available to the transaction? 3. Whether the profits arising out of improvements effected by a permananent lessee be “mesne profits within the meaning of section 2(12) of the Code of Civil Procedure? 5. The plaintiff-Mutt is a religious endowment which propagates the doctrine of Saiva Sidhantha. 3. Whether the profits arising out of improvements effected by a permananent lessee be “mesne profits within the meaning of section 2(12) of the Code of Civil Procedure? 5. The plaintiff-Mutt is a religious endowment which propagates the doctrine of Saiva Sidhantha. The then Pandarasan-nadhigai, Sri-la-Sri Thirugnanasambanda Swamigal, granted a lease in perpetuity in favour of one Sadasivam Pillai on 29.1.1916 evidenced by Exhibit A-2 in respect of plaint item No.1. The said Sadasivam Pillai paid a permium of Rs.650/- and agreed to pay a rent of Rs.12/- per annum. The grantor attained samadhi on 7.1.1957 and the plaintiff became the head of the Mutt. The second item of the plaint property is a river poramboke covered by Survey No.266/2. It forms an adjunct or an addition to the first item. That is also claimed by the plaintiff. The claim of the plaintiff is based on the fact that the lease in perpetuity is valid only during the lifetime of the Pandarasan-nadhigal who granted it and it does not enure beyond his lifetime. The defendant resisted the suit mainly on the ground that the lease granted was a prudent act on the part of the grantor and that therefore the lease is valid and binding on the plaintiff. Exhibit A-2 appears to be a counter lease deed. The lease deed executed on behalf of the Mutt is not before the Court. Sadasivam Pillai, the lessee, is not before the Court. Sadasivam Pillai, the lessee, the states in deed, Exhibit A-2, that the land is a barren land which is not brought under cultivation, that he is prepared to pay a sum of Rs.12/- per annum and that he will raise trees (as he likes) on the land. A further reading of Exhibit A-2 shows that a sum of Rs.650/- has been received by the Pandarasannadhigal on 27.1.1916 as premium. The written statement states that the lease granted by the Late Madathipathi to Sadasivam Pillai was a very prudent transaction and was in the interest of the Mutt and it cannot be questioned at this distance of time. It is not disputed that item No.1 of the suit properties was leased out to Sadasivam Pillai and there is no dispute either that the property belongs to the Mutt. 6. A Madathipathi or the Head of a Mutt has not got an unqualified power of alienation in respect of Mutt properties. It is not disputed that item No.1 of the suit properties was leased out to Sadasivam Pillai and there is no dispute either that the property belongs to the Mutt. 6. A Madathipathi or the Head of a Mutt has not got an unqualified power of alienation in respect of Mutt properties. The earliest of the decisions is in MAHARANEE SHIBESSOUREE DEBIA v. MOTHOORA NATH ACHARIO, (1869-70)13 Moo. Ind.App.270 (P.C.). Their Lordships of the Judicial Committee held that a permanent lease of land belonging to a religious endowment created by a she bait 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. In PR0SVNN0 KUMARI DEBYA v. GOLAB CHAND BABOO, (1875) L.R.2 I.A.145 the Privy Council took the view that the authority of the she bait of an idol’s estate with regard to alienation of the said estate was analoguous to that of a guardian of an infant heir. Lord* Justice Knight Bruce in HANUMAN PERSHAD PANDAY v. BABOOEE MUNRAJ KOON WERJEE, (1854-57)6 Moo.Ind.App.393 observed: "The power of the manager for an infant heir to charge an estate not his won 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 mis-management of the estate. The actual preasure 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". In PALANIAPPA CHETTY v. SREENATH DEVASI-KAMONY PANDARASANNADHI, (1917) I.L.R.40 Mad.709 (P.C.): 44 I.A.147= 33 M.L.J.1= 16 L.W.222= A.I.R.1917 P.C.33 their Lordships of the Judicial Committee had to consider the power of a she bait to grant a permanent lease of endowed property. That was a case where certain properties had been endowed to Sri Subramaniaswamy Devasthanam in the village of Kunnakudi in the district of Madurai for the purpose of religious service to the temple. That was a case where certain properties had been endowed to Sri Subramaniaswamy Devasthanam in the village of Kunnakudi in the district of Madurai for the purpose of religious service to the temple. That property included a building site situate in one of the streets of the village upon which site stood some ruins. No rent was received out of that site and the ruins upon the site became a nuisance, and it was found that it would have cost more than Rs.200/- to have had the site walled around. In that state of things, one Palaniappa Chetty applied for grant of a perpetual cowle for the site at the rent of Rs.1-8-0 per annum for the purpose of erecting thereon buildings for an Annathanam Mutt. There were other offers for acquisition of the site. They were considered by the existing she bait and he granted a perpetual cowle to the appellants in that case, namely, Palaniappa Chetty and another, for the purpose of erecting buildings thereon for the said Anna-thanam Matam Charity. The charity contemplated was the erection of a rest house for pilgrims passing through the village, irrespective of the fact from where they came and to which place they were proceeding and irrespective of the fact whether or not they worship in the temple and was therefore a charity not in any sense subsidiary to or connected with the temple or religious services performed therein, but separate and independent charity of a wholly different kind and character to the support or maintenance of which none of the dedicated property or its produce could as an act of charity be legitimately applied. In their Lordships opinion the evidence adduced in that case did not establish that the she bait was constrained by any necessity to make such a lease or any benefit accrued to the estate from it. In such circumstances, it was held that the grant, at a fixed rent and on payment of a premium, of a permanent lease by the she bait of a portion of the lands dedicated to the worship of the idol of which he was a trustee, was invalid as against his successor in the shebait-ship. In such circumstances, it was held that the grant, at a fixed rent and on payment of a premium, of a permanent lease by the she bait of a portion of the lands dedicated to the worship of the idol of which he was a trustee, was invalid as against his successor in the shebait-ship. In dealing with the question as to what amounts to benefits to the estate, their Lordships say that it is impossible to give a precise definition of it applicable to all cases and that they do not attempt to do so, but 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 and such like things would obviously be benefits." In DAIVASIKHAMANI PON-NAMBALA DESIKAR v. PERIANNAN CHETTY, (1936)63 I.A.261= 71 M.L.J.105= I.L.R.59 Mad.809= A.I.R. 1936 P.C.183 a permanent lease or an absolute alienation of debutter property was held to be beyond the ordinary powers of management, whether it be in the case of the head of a mutt, she bait, of a family idol, or the dharmakartha of a temple and such alienation could be justified only by proof of necessity for the preservation of the endowment or institution. In VIDYA VARUTHI v. BALUSAMI AYYAR, (1921) I.L.R.44 Mad.831: (1921) 48 I.A.302= 41 M.L.J. 346= A.I.R.1922 P.C.123 it was held that except for unavoidable necessity, the head of a mutt cannot create any interest in the mutt property to enure beyond his life. In RAJARAM DASS BAVAJI v. BHARATHA DASS BAVAJI, (1917) 38 I.C.221 a Division Bench of this Court held that the head of a mutt can nominate his chela during his lifetime to succeed him on his death, but he cannot alienate the whole of the corpus of the mutt property or any portion of it, except for proper and necessary purposes. MUTHUSAMIAR v. SREE SREEMETHANITHI SWAMIYAR, (1915) I.L.R.38 Mad.356= 25 M.L.J.393 was a case where the head of a mutt leased the village in 1872 permanently in favour of one Mudgala Chariar who sub-leased or assigned his interest in favour of certain persons. The lessor dies in 1890 and was succeeded by Sri Sudhi Nidhi Swamiar, a person who had been managing the affairs of the mutt on behalf of his predecessor during the later years of his life. The lessor dies in 1890 and was succeeded by Sri Sudhi Nidhi Swamiar, a person who had been managing the affairs of the mutt on behalf of his predecessor during the later years of his life. In 1889 before his predecessor’s death, he, on behalf of the madathipathi, leased the inam to the 6th defendant in that case cancelling the lease of 1872. The sixth defendant was, however, not able to the obtain possession and from 1893 onwards the Swamiar was collecting rent reserved by the old lease of 1872 and in 1903 the litigation about the sixth defendant’s lease having come to an end, he treated the occupants under the old lease as tenants and recovered rent from them, according to the shares held by them in inam. In 1906 Sri Sudhi Nidhi Swamiar died and was succeeded by the plaintiff in that case. He sued to set aside the lease and recover possession of the inam. The Subordinate Judge directed the defendant to deliver possession of the suit land. The fourth defendant who was in possession of the three-fourths of the plaintiff’s share in the said village which was sold for arrears of Road Cess due under the Local Boards Act appealed. It was contended that the suit is barred by limitation, because time has to run from the date of alienation in 1872, the lease being void, or at the latest from the death of Sugnana Nandhi Swamiar in 1890. It is conceded in that case for the appellants that the lease is in excess of the powers of the madathipathi. It was held in that case that the suit is not barred by limitation except as regards the lands sold in revenue sale, that the alienation by the head of the mutt is not necessarily void and has no effect, but is good for the lifetime of the alienor. In NARASIMHACHARI v. G0PALA AYYANGAR, (1905) I.L.R.28 Mad. 391, a Division Bench of this Court held that a trustee of a religious endowment cannot, except on special grounds create a perpetual tenure binding on his successors in office. 7. It is clear therefore from the above rulings that unless it is shown that a permanent lease was entered into for legal necessity or for the benefit of the estate of the mutt, the said lease cannot be binding on the succeeding madathipathi. 7. It is clear therefore from the above rulings that unless it is shown that a permanent lease was entered into for legal necessity or for the benefit of the estate of the mutt, the said lease cannot be binding on the succeeding madathipathi. The burden of establishing the circumstances justifying an alienation of the mutt property is on the alienee. It is stated in the written statement that item No.1 was a dry land, almost a waste, overgrown with shrubs and prickly pears and that the position was that the land was only a source of liability for tax with no prospect of any appreciable income, that at that time the Mutt could not command necessary finance to reclaim the area and in the circumstances disposal of the land cannot be said to be void and beyond the powers of the head of the mutt and that the cowle given by the late Madathipathi to Sadasivam Pillai was a very prudent transaction and was in the interest of the Mutt. The written statement states that the permanent lease came into existence as the land in question was a dry land and is not cultivable and it abuts river Vaigai and the Mutt could not spend for reclaiming the property and in the circumstances disposal of the land cannot be said to be void or beyond the powers of the Mutt. It is also seen from the statement that the lease in perpetuity created in that period could not be considered to be an imprudent transaction or one not in the interest of the Mutt. Exhibit A-2 which is in the form of a letter is said to be a counter-lease deed executed by Sadasivam Pillai in favour of the late Madathipathi Sri-la-Sri Thirugnanasambanda Pandarasannadhigal. On the 29th January, 1916, Sadasivam Pillai applied to the then Madathipathi for grant of a perpetual lease of the property described in Exhibit A-2 on a rent of Rs.12/- per annum for the purpose of raising trees of his own choice. The perpetual lease was granted to Sadasivam Pillai in consideration of a premium of Rs.650/- which has already been paid to the Madathipathi on 27.1.1916. A perusal of Exhibit A-2, shows that no circumstance is mentioned justifying an alienation of the Mutt property. There appears to be no legal necessity. The perpetual lease was granted to Sadasivam Pillai in consideration of a premium of Rs.650/- which has already been paid to the Madathipathi on 27.1.1916. A perusal of Exhibit A-2, shows that no circumstance is mentioned justifying an alienation of the Mutt property. There appears to be no legal necessity. The written statement is to the effect that disposal of the land cannot be said to be void or beyond the powers of the head of the Mutt. But the several rulings pointed out above clearly show that a mahant, madathipathi of the head of a Mutt has no such absolute and unrestricted power to alienate the immovable property and such alienation could be justified only on legal necessity or for the benefit of the estate of the Mutt. It is pointed out by the learned counsel appearing for the appellate that the appellate Judge has found that the Mutt was not in affluent circumstances on the date of Exhibit A-2 and that it has been borrowing small sums for expenses and has been raising loans on promissory notes, as could be gathered from the entries in the ledgers, Exhibits A-9 to A-12. But then the mere fact that the Mutt was not in affluent circumstances would not necessarily justify the madathipathi to alienate part of the Mutt property when it is not shown -at such alienation was for the benefit of the estate of the Mutt. There is nothing in the evidence to establish that the Madathipathi was constrained by any necessity to grant this perpetual lease or that any benefit accrued to the estate by this permanent cowle. There is no evidence whether any attempt was made to reclaim the property. From Exhibit A-2 it is seen that it was Sadasivam Pillai who took the initiative in the matter and applied to the Madathipathi for grant of a perpetual cowle for the purpose of planting trees of his choice. The only ground stated in Exhibit A-2 is that the property granted in perpetual lease was not brought under cultivation for a long time and it is not fit for cultivation and is overgrown with cactus. Beyond this, no reasons are furnished in Exhibit A-2 for the grant of the perpetual lease. The only ground stated in Exhibit A-2 is that the property granted in perpetual lease was not brought under cultivation for a long time and it is not fit for cultivation and is overgrown with cactus. Beyond this, no reasons are furnished in Exhibit A-2 for the grant of the perpetual lease. There is no evidence let in by the appellant to show that there was any pressure on the estate of the Mutt which necessitated the execution of the lease deed, Exhibit-2, in favour of Sadasivam Pillai. It is also not shown whether there was any need for giving away the land on a fixed rent when the lessor has the power to vary the rate of rent on a future date depending on the prevailing circumstances. It is seen from the evidence placed before Court that a coconut grove has came into existence on the suit property and it has given a good yield of coconuts. It is stated that some reclamation was done by the alienee, but it is clear that the land in question is a valuable land and the situation of it on the banks of a river far from endangering the property from being flooded, will actually help the yield of coconuts which require abundant and copious supply of water. From the foregoing, it is clear that the permanent lease evidenced by Exhibit A-2 was not entered into for any legal necessity or for the benefit of the estate of the Mutt. 8. It is next contended that the plaintiff had accepted rent from the alienee or from the persons claiming under him both as an agent of the Madathipathi who died and as his successor and therefore the alienation could not be challenged. Generally, a permanent lease granted by the head of a mutt is valid only during his lifetime. In VIDYA VARUTHI v. BALUSAM1 AYYAR, (1921) I.L.R.44 Mad.831= 41 M.L.J.346 the Privy Council pointed out that "according to the well-settled law of India (apart from the question of necessity), a mahant is incompetent to create any interest in respect of the mutt property to enure beyond his life. In VIDYA VARUTHI v. BALUSAM1 AYYAR, (1921) I.L.R.44 Mad.831= 41 M.L.J.346 the Privy Council pointed out that "according to the well-settled law of India (apart from the question of necessity), a mahant is incompetent to create any interest in respect of the mutt property to enure beyond his life. In MUTHUSAMIAR v. SREEMETHANITHI SWAMIYAR, I.L.R.38 (1915) Mad.356= 25 M.L.J.393, a Division Bench of this Court was of the opinion that an alienation by the head of a Mutt is not necessarily void and of no effect, but is good for the lifetime of the alienor. In NARASIMHACHARI v. GOPALA AYYANGAR, (1905) I.L.R.28 Mad.391 a Division Bench of this Court took the view that a trustee of a religious endowment cannot, except on special grounds, create a perpetual lease, unless it is for legal necessity or for the benefit of the estate of the Mutt, and will not bind the successor in office. It has been found that the perpetual lease created by the late Madathipathi was not for legal necessity or for purposes binding the estate. Therefore, such an alienation will not bind the plaintiff, the succeeding Madathipathi. But the counsel for the respondent pointed out that the plaintiff has received rents. On this aspect, we have the evidence of the defendant who says that he has paid rents under Exhibits B-2 to B-5 through his agent to the Mutt. Of these, Exhibits B-2 to B-4 were given by the late Madathipathi. Exhibit B-5 is a receipt of the date 10.8.1957. It is signed by one Sri Gnanasambanda Desikar. In the written statement, the defendant pointed out that the plaintiff has received rents from Fasli 1363 to Fasli 1366. There is no proof for that. The only receipt, Exhibit B-5, is of the date 10.8.1957. P.W.1 was not confronted with this receipt. There is no admission by P.W.1 that Exhibit B-5 was granted by the plaintiff. All that he says is that Exhibits B-2 to B-5 were given by the plaintiff. It is not clear whether money was paid through the agent of the defendant or whether the receipt was sent through his agent. There is no clinching proof that this receipt, Exhibit B-5, is given by the plaintiff. All that he says is that Exhibits B-2 to B-5 were given by the plaintiff. It is not clear whether money was paid through the agent of the defendant or whether the receipt was sent through his agent. There is no clinching proof that this receipt, Exhibit B-5, is given by the plaintiff. Assuming that it is given by the plaintiff, it is not clear as to how a solitary receipt granted to the defendant would estop the plaintiff from challenging the alienation of a perpetual lease made by his predecessor, more particularly when the defendant himself has pleaded in his written statement that money orders sent by him towards rent were "improperly refused" by the plaintiff. The plaintiff has not accepted the rents sent by the defendant and therefore he had no intention that the lease should enure beyond the lifetime of his predecessor or to create a new tenancy. On 25.7.1955 under Exhibit A-5, the defendant writing to the plaintiff-mutt says -that the suit properties have fallen to his share, obviously in a partition, and that he will be paying the rent of Rs.12/- per annum. But on 5.9.1957, the Mutt issues a notice through its Advocate requiring the defendant to surrender possession of the property on the ground that the previous Madathipathi had no right to grant a permanent lease. It is clearly stated in that notice that the lease which is for nominal sum is without any benefit or necessity and therefore void. The defendant replies through his Advocate under Exhibit A-7 dated 17.10.1957. Therefore, it is wrong to say that the plaintiff accepted the rents from Fasli 1363 to Fasli 1366 and even assuming that Exhibit B-5 is a receipt granted by the plaintiff solitary receipt for payment of Rs.12/- will not estop the plaintiff from challenging the alienation made by the predecessor which does not enure beyond his lifetime as it is found to be not for any legal necessity or for the benefit of the estate. 9. It is next contended by the learned counsel appearing for the appellant that Exhibit A-2 remained unquestioned for more than half a centur and that by itself is sufficient to support the conclusion that the grant was made for legal necessity and is binding on the mutt. In support of his contention, learned counsel for the appellant. 9. It is next contended by the learned counsel appearing for the appellant that Exhibit A-2 remained unquestioned for more than half a centur and that by itself is sufficient to support the conclusion that the grant was made for legal necessity and is binding on the mutt. In support of his contention, learned counsel for the appellant. invited my attention to ISWAR GOPAL v. PRATAPMAL BAGARIA, 1951 S.C.J.285= 1951 S.C.R.332= 64 L.W.525= A.I.R.1951 S.C.214. That was also a case where the validity of a permanent lease granted by a shebait was called into question. The Supreme Court found as a fact that the “transaction was in the best interest of the deity and was clearly beneficial to it.†It was also observed that “it is difficult to believe that a devout person like her (a shebait) who was not only a shebait but also the widow of the founder of the deity and who had shown such keen interest for the upkeep of the worship of the deity should have entered into the transaction in question unless she considered it absolutely necessary to do so.†It was also found that there were several shebaits between the death of Muni Bibi who was the widow of the founder of the deity and who created the permanent lease and the commencement of the litigation in that suit and that the lease was never impugned as beyond the powers of the shebait. But, on the other hand, the permanent character of the lease was recognised in the deeds subsequently. It was also found that the tenancies were created by two pious ladies who were keenly interested in the upkeep of the worship of the deity and it was suggested that they are expected to derive no personal advantage from the transactions in question. It is in those circumstances that the Supreme Court held that if a permanent lease granted by a shebait is called in question, although it is not possible to ascertain fully what the circumstances were in which it was made, the Courts should assume that the grant was made for necessity so as to be valid beyond the life of the grantor. Here, in this case it has been found that the perpetual lease was not for legal necessity or for benefit of the estate of the Mutt. Here, in this case it has been found that the perpetual lease was not for legal necessity or for benefit of the estate of the Mutt. Secondly, even the recitals in Exhibit A-2 do not show that there was any legal necessity or benefit to the estate which impelled the late Madathipathi to execute Exhibit A-2. Thirdly, the plaintiff within a period of nine months of his assuming office, has chellenged the alienation by issuing a notice through his Advocate on 5.9.1957 unlike in the case referred to where several shebaits who succeeded the alienor have not challenged the premanent lease. Forthly, the madathipathi who granted the permanent lease in 1916 died only in the year 1957 and it is only after his death and not during his lifetime the permanent cowle or lease could be challenged. The plaintiff has filed the suit within 12 years from the date of assuming office. The suit is well within time and the issue on the question of limitation was not pressed in the lower court. It cannot therefore be said that in this case a presumption would arise that the grant of permanent lease was made for legal necessity and for the benefit of the estate so as to bind the Mutt after the lifetime of the Madathipathi who granted it. 10. The next contention of the learned counsel for the appellant is that the profits realised out of the improvements made by the lessee cannot be termed as mesne profits. Section 2(12) of the Code of Civil Procedure runs thus: mesne profits of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profit, but shall not include profit due to improvements made by the person in wrongful possession.†A reading of that section shows that mesne profits shall not include profits due to improvements made a person in wrongful possession. Sadasivam Pillai was a permanent lessee and his rights were transferred to the defendant’s father and the defendant is said to have got the property in a partition effected in his family. The possession of the suit property by the defendant is therefore that of a permanent lessee. Sadasivam Pillai was a permanent lessee and his rights were transferred to the defendant’s father and the defendant is said to have got the property in a partition effected in his family. The possession of the suit property by the defendant is therefore that of a permanent lessee. It cannot be said that a permanent lessee is a person in wrongful possession during the lifetime of the Madathipathi who granted the permanent lease. Further it should also be noted here that when the lease was granted under Exhibit A-2, the suit property was a barren land not brought under cultivation as is evident from the recitals in Exhibit A-2. The coconut trees and mango trees have been planted by the permanent lessee and by the defendant’s father. Therefore, any profit which accrued from the usufructs of these trees are not mesne profits and consequently the decree granted to the plaintiff against the defendant for Rs.4162.50 towards past mesne profits, is wrong. That disposes of the substantial questions of law raised. 11. As regards improvements, the appellate Court has found that the defendant is not entitled to value of improvements of the property belonging to the Mutt following the ruling in SRI-LA-SRI SHANMUGA DESIKA GNANASAMBANDA PANDARASAN-NADHI v. ANANDHAKRISHNA SWAMINAIDU, (1936) 70 M.L.J.155= I.L.R.59 Mad.402= 43 L.W.327= A.I.R.1936 Mad.247. No ground expressly has been taken in the memorandum of grounds of appeal challenging this finding of the appellate Court though in ground No.22, a reference is made to the reclamation by the lessee and by his successors. There is no other contest in this second appeal. 12. In the Cross-objections, the plaintiff attacks the decree of the appellate Court dismissing the suit in respect of item No.2. According to the plaintiff, the lower appellate Court ought to have decreed the suit for possession in regard to item No.2 also. The further contention is that the lower appellate Court ought to have granted past profits at the rate claimed by the Cross-objector. It has already been found that the plaintiff will not be entitled to past mesne profits. As regards item No.2, the lower appellate Court has clearly found that the original lessee, Sadasivam Pillai, has encroached upon item No.2 and planted trees and after his death, his heirs sold it to respondent’s father along with item No.1. It has already been found that the plaintiff will not be entitled to past mesne profits. As regards item No.2, the lower appellate Court has clearly found that the original lessee, Sadasivam Pillai, has encroached upon item No.2 and planted trees and after his death, his heirs sold it to respondent’s father along with item No.1. It is also pointed out that under Exhibit A-6 issued by the plaintiff, item No.2 has not been reclaimed. The defendant has offered to pay rent only in respect of item No.1. It is also found that there is no proof that item No.2 was an accretion to item No.1. There is no proof that item 2 belongs to the plaintiff-Mutt. The suit was rightly dismissed in respect of item No.2. 13. The result is the decree granting past mesne profits of Rs.4162.50 alone is set aside and in other respects the decree of the first appellate Court is confirmed. The second appeal is allowed to that extent and is dismissed in other respects. The Cross-objections is dismissed without costs. The parties will bear their own costs in the second appeal.