1. These two analogous appeals arise out of the reversing judgment of the Additional Subordinate Judge of Cuttack setting aside the judgment and decree of the Munsif of Kendrapara and decreeing the plaintiff's suit for recovery of possession of two small house sites.
2. The plaintiff is a Pir represented by its present Mutawalli Alimulla. The wakf in favour of the Pir was created by the father of Alimulla named Ramjanulla some time in 1908 by a wakf-nama (Ext. 1). The total property dedicated to the Pir in that wakfnama is 14.8 acres (including the disputed house sites) and it was expressly stated in the deed of dedication that the surplus income from the wakf property may be appropriated by the Mutawallis.
After the death of Ramjanulla, his wife (Ali-mulla's mother Hazara Bibi) became the Mutawalli and managed the wakf property till her death on 4-12-1933. During her period of management she executed two kabalas (Ext. A-1 dated 6-12-1922 and Ext. A dated 7-9-1925) in favour or the predecessors-in-interest of the appellants transferring small portions of house sites for Rs. 230/- and Rs. 200/- respectively. The area or the house site transferred by the first deed is eight decimals and the area transferred by the second deed is six decimals. Alimulla joined in the execution of the two sale deeds by his mother; but admittedly at that time he had no interest as he was not the Mutawalli.
After the death of his mother he became the Mutawalli of the wakf property and brought the suits under appeal for a declaration that the alienations were not binding on the wakf and for recovery of possession of the disputed house sites on behalf of the Pir.
3. The trial Court held that the alienations were made by Hazara Bibi for the purpose of discharging the previous debts binding on the wakf, for repairing the Pirsthan and also for meeting the routine expenses of the Pir. This finding was upheld by the appellate Court and was rightly not challenged before us.
But the two lower Courts differed on the question of limitation. The trial Court held that the alienations were void ab initio and that limitation would run from the date of the alienations. On this view, the suits were clearly time-barred. But the lower appellate Court held that the alienations were only voidable, that they were valid during the life-time of the Mutawalli and that limitation would commence from the date of death of Hazara Bibi on 4-12-1933. In this view the two suits were not time-barred. Hence, it decreed the plaintiff's suit.
We are satisfied that the lower appellate Court took a correct view on the question of limitation. The wakf deed makes it clear that the Mutawalliwas a beneficiary being entitled to appropriate for his use the surplus income out of the usufruct for meeting the expenses of the Pir. The lower appellate Court rightly relied on -- 'Ram Charan v. Naurangi Lal', AIR 1933 PC 75 (A); -- 'Mahadeo Prasad v. Karia Bharthi', AIR 1935 PC 44 (E) and -- 'Daivasikhamani Ponnambala v. Perivanan Chetti', AIR 1936 PC 183 (C), in support of the view that alienations of this type made by a Mutawalli of a Muslim religious endowment or by a Mahant of a Hindu Muth are voidable and not void ab initio. Possession of the alienee would, therefore, be adverse to the endowment only from the date of death, resignation or removal of the previous manager. The suits are, therefore, not time-barred,
4. It is a well settled principle of Mahom-medan Law that in the absence of any express provision in the wakf - deed a Mutawalli is not entitled to make any alienation of the wakf property, even for legal necessity without the permission of the Court (see Mulla's Mahommedan Law, 13th Edn., Article 207 at p. 194). On behalf of the appellants, therefore, Mr. Rao filed a petition requesting this Court to grant permission with retrospective effect. He urged that as the alienations were made for the legal necessity of the Pir and as the total area of the property alienated was insignificant compared to the total extent of the wakf property the Court would be justified in exercising its discretion retrospectively in favour of the alienees.
The power of the Court to sanction alienations with retrospective effect has been recognised in several decisions commending from -- 'Nemai Chand v. Golam Hossein', 37 Cal 179 (D). In a recent decision of the Madras High Court reported in -- 'Abdul Kadir v. Mahlarathul Kadiria Sabha', AIR 1953 Mad 143 (E), the law on the subject has been fully reviewed and the contrary view expressed by Ameer Ali has not been accepted. With respect, we would follow the Madras and Calcutta decisions and hold that in appropriate cases alienations may be permitted with retrospective effect.
5. The next question for consideration is whether on the facts found by the two lower Courts we would be justified in granting permission at this stage. I have already shown that the findings are to the effect that the alienations were made for the purposes of the wakf. The total extent of the property as given in the wakf deed is 14.8 acres and the extent of the two alienations is .14 acres. Considering the small area of the property that was sold for the purposes of paying off the previous debts and for other necessary expenses it cannot be seriously urged that the corpus of the wakf property would be materially impaired if these two alienations are permitted.
Mr. Das thereupon urged that the application for permission ought to have been filed before the trial Court and that this Court sitting in second appeal should not grant permission. He has, however, not been able to cite any authority in support of his contention that an application for permission should, in the first instance, be filed before the trial Court. Doubtless, if the giving of permission requires further investigation of facts this Court would remand the case to the trial Court for a finding regarding those facts. But in view of the concurrent findings of fact about the legal necessity and the admitted position regarding the extent of the property that has been alienated and the total extent of the wakf property, we consider that all necessaryfacts for the purpose of giving permission are available before us and we may therefore exercise discretion conferred by law and permit the two alienations. We may mention that in the Madras case cited above, permission was given at the first appellate stage.
6. We would therefore permit the two alienations with retrospective effect and dismiss the plaintiff's suits. Both parties will bear their own costs throughout. The appeals are allowed accordingly.
7. I agree.