1. The defendant in O. S. No. 58 of 1945 in the court of the Subordinate Judge of Tuticorin is the appellant before us. The suit was for the recovery of property consisting of a house and site in. Kayalpatnam in Tiruneveli district. The suit property originally belonged to one Abdul Khadar who made a wakf of the same by a deed dated 14-6-1921, Ex. D. 2. The wakf deed was executed in favour of two persons, M.K. K.T. Ahmed Mohideen and Chinna M.K. Ahmed Moideen as managers of the Mahlara at Ambala Maricair Avergal Street belonging to the Kadiria Muslim community of Kayalpatnam south. The Kadiria Tharikh is a small sect of Muslims said to have been founded by s disciple of the Holy Prophet. The sect holds certain peculiar tenets and believes in the efficacy of japan (zikr). This property was sold to the defendant by a deed dated 10-4-1941 for a sum of Rs. 1550 by Chinna K. M. Mahomed Labbai and Chinna A. K. Sheik Abdul Khadar describing themselves as managers of the Mahlara. It is common ground that with the monies raised by this sale the vendors purchased as managers and on behalf of the Mahlara pro-perty consisting of site and buildings in the town of Tuticorin for a sum of Rs. 1430.
2. The plaintiff is the Mahlaratual Kadiria Sabha, Kayalpatnam, a society registered under the Societies Registration Act and is represented by its President. The plaintiff alleged that the affairs of the Mahlara for whose benefit the wakf had 'been created in 1921 were being managed by it since 1941 and that it is entitled to represent the Mahlara, that the sale in favour of the defendant was invalid and illegal as it was beyond the competence of the managers to sell the property which had been dedicated under a wakf, and that the sale was for inadequate consideration and was not justified by any necessity. The plaintiff referred to the purchase of the property in Tuticorin but refrained from making any statement regarding it. The defendant denied the plaintiff's claim to represent the Mahlara and its competence to maintain the suit. He asserted that the plaintiff Sabha did not represent the Kadiria community in Kayalpatnam. The main plea, however, was a justification of the sale in his favour. It was alleged by him that the building had deteriorated in value and was not In a sound condition, that a large amount of money would have been required for putting it in good repair but the Mahlara had not sufficient surplus funds to effect the repairs and that under the circumstances the persons who were in management thought it a most prudent act to sell away the property and to purchase with the sale proceeds property which was likely to fetch more income for the Mahlara & that the property purchased at Tuticorin did yield more income than the property in suit. It was also pleaded by him that ever since the Tuticorin property had been purchased the plaintiff had been in possession and enjoyment of it and had been collecting the income therefrom, and, therefore, the plaintiff was precluded from questioning the validity of the sale in favour of the defendant which formed a part of the same transaction along with the Tuticorin sale.
3. The learned Subordinate Judge found that the plaintiff Sabha was not a de jure manager of the Mahlara and its property because the general body meeting at which its members were elected did not represent the entire Kadiria sect of Kayalpatnam, but it was a trustee 'de son tort' and as such entitled to file the suit for recovery of possession of property belonging to the Mahlara. He found that the suit property at about the time of the sale to the defendant was fetching only a rent of Rs. 1 per mensem, that a portion of the western wall of the building had fallen down, that the roof of one of the shops had collapsed and another was about to collapse and that the Mahlara had no reserve or surplus funds from which the building could be repaired, nor was there evidence that the repair could be done within a reasonable amount. The entire sale proceeds had been invested in purchasing pucca house properties at Tuticorin which fetched a rent of Rs. 12 per-mensem. He further found that the consideration for the sale in favour of the defendant was proper and adequate. On the question of law raised in the case the learned Judge was of the opinion that an alienation of wakf property could be validly made only with the prior sanction of the Kazi, or as the court is vested with the powers of the Kazi, with the sanction of the court, and that it was impossible for him to validate the transaction retrospectively merely because it was beneficial to the Mahlara, as he considered that the transaction was not strictly necessary. He, therefore, held that the sale to the defendant was not binding on the Mahlara. He also held against the defendant on his plea of estoppel. In the result he decreed the suit for recovery of possession, but dismissed it as regards the other relief's.
4. Mr. Rajah Aiyar who appeared for the defendant-appellant did not challenge the finding of the learned trial Judge that the plaintiff Sabha was entitled to maintain the suit as de jure trustee of the Mahlara. He urged before us two grounds, (1) that the retrospective approval or sanction can be given by the court to an alienation of wakf property if it was found to be supported by necessity or if it was beneficial to the trust and (2) that the plaintiff had accepted the benefit of the transaction which comprises the purchase in Tuticorin along with the sale to the defendant and was precluded from attacking the sale to the defendant, after retaining the Tuticorin property.
5. The first ground raises an important question of Muhammadan Law on which there is no direct authority of this court. The leading decision on the subject is that of the Calcutta High Court in -- 'Nemai Chand v. Mir Golam Hossein', 37 Cal 179. That was no doubt a case of a mortgage of wakf property, but the decision has been understood to apply generally to any alienation of wakf property. The learned Judges Mookerjee and Vincent JJ. after an examination of several texts, observe ss follows :
"These texts indicate that property which has been validly dedicated as wakf cannot, unless the Mutavalli is expressly empowered by the deed of endowment to do so, be ordinarily sold or mortgaged. If, however, necessity is established and the permission of the Kazi is obtained, such alienation is valid. Some of the texts, however, indicate that the Mutavalli may borrow on his own authority if the Cadi happens to be at a distance......... This would seem to show that the previous permission of the Cadi is not a condition precedent, and Sir Roland Wilson appears to favour this view when he suggests that the transaction may be retrospectively confirmed by the court.....The texts, however, to which we have referred, indicate plainly that the consent of the Cadi is essential whenever he is available, and if so, there is no reason why approval subsequent to the transaction should not be treated as effective in the same manner as approval prior to the transaction. It is but rational to hold that the approval of the Cadi was deemed requisite, primarily with a view to make sure that the loan was necessary, and in this view approval, antecedent or subsequent, ought to be equally effectual."
So far as we are aware the soundness of this decision has not been challenged in any subsequent decision of any of the High Courts in this country. On the other hand, in -- 'Afzal Husain v. Chhedi Lal', 57 All 727, this decision was- expressly followed in so far as it held that the requisite sanction to validate an alienation of wakf property could subsequently be given by the court with retrospective effect. In -- 'Sailendranath v. Hade Kaza', 59 Cal 586, the principle laid down in the earlier decision was again affirmed (See p. 611). In -- 'Zafar-bai v. Chhaganlal', AIR 1942 Bom 21, dealing with a long term lease of wakf property, Divatia J. took the same view. He said,
"I see no distinction in principle between antecedent and subsequent sanction in the case of a long term lease if a mortgage by a Mutavalli can be validated by subsequent sanction as in -- 'Nemaichand v. Golam Hossein', 37 Cal 179 and -- 'Afazal Hussain v. Chhedilal', 57 All 727. The test in both the cases is the same, viz., necessity or benefit to the institution."
Mr. Rajah Aiyar, besides relying on these decisions, also referred us to the opinion of text writers. Mulla in his Mahomed an Law, 13th Edn., states thus:
"A Mutavalli has no power, without the permission of the court, to mortgage, sell or exchange wakf property or any part thereof, unless he is expressly empowered by the deed of wakf to do so...... It has been held in Calcutta that a mortgage of wakf property though made without the previous sanction of the court may be retrospectively confirmed by the court."
In Tyabji's Muhammadan Law, 3rd Edn., we find the following summary of the law on the point,
"Unless the dedication or the court authorises the Mutavalli to sell or mortgage the wakf property he has no authority to do so; and where he does so he is guilty of a breach of trust for which he may be removed. The1 court may, if wakf land becomes unfit for the objects of the wakf, order its sale; or, in a proper case, for urgent necessity, empower or retrospectively approve and validate a sale, or mortgage, or a long or perpetual lease." (pages 657-658).
6. Sir Ronald Wilson in an earlier edition (3rd Edn.) of his Anglo-Muhammadan Law was apparently inclined to the view that an alienation by a Mutavalli could be retrospectively confirmed by the court. This view of his was also relied on by the learned Judges in --'Nemaichand v. Golam Hossein', 37 Cal 179 at p. 187. But in a subsequent edition the learned author corrected the impression and said,
"The learned Judge went on to say, 'Sir Ronald Wilson appears to favour this view when he suggests that the transaction may be retrospectively confirmed by the court'. My suggestion, however, (omitted in the present edition) was made with reference to leasing, not to mortgaging."
He pointed out that it was based on a passage in Baillie's Digest which did not seem to him subsequently to bear that construction. He then adds:
"It seems likely that if this loophole is left open the parties concerned will always be disposed to consider that the "Kazi" is at too great a distance to be conveniently applied to, and mortgages of wakf property will have been placed practically on the same footing as mortgages of Hindu family property, namely, that the parties take the risk of being able to satisfy the court that there was a bona fide necessity, if the transaction is challenged."
We fail to see anything so startling in the result as appeared to Sir Ronald. There appears to us no reason why any substantial difference should be made between alienations of property belonging to Hindu religious institutions and Muhammadan religious institutions.
7. Ameer Ali made strong adverse comment on the decision in -- 'Nemai Chand v. Golam Hossain', 37 Cal 179 as follows:
"Speaking with respect, the view here expressed misses the principle underlying the rule of Mussalman Law. According to all the authorities the validity of a transaction creating a burden on a wakf depends on the prior sanction of the Judge, which is essential in every case and not as is said in the judgment merely 'whenever he is available'. The qualification of the law implied in these words, it is respectfully submitted is not warranted by the authorities for even the statement that when the mutavalli is at a distance from the Judge he may act of his own authority does not vary the law; it only throws the responsibility on the Mutavalli himself. 'Ex post facto' sanction was never contemplated by the Mussalman jurists. For the permission of the Judge was made an absolute condition to see not only that the loan was necessary, but also whether it was proper, that the terms were not onerous and there was no other mode of meeting the necessity." (4th Edn., p. 490).
8. With due respect to the learned author we may remark that the Mussalman jurists could not have contemplated the Kazi ceasing to have the powers with which he was vested in their days and the substitution of the Court for the Kazi.
9. Notwithstanding the opinion of the text writers, Wilson and Ameer Ali, we are inclined to follow the decision in -- 'Nemaichand v. Golam Hossein, 37 Cal 179, which, as already mentioned, has been consistently followed in other courts. The sanction of the Kazi was evidently intended to be a safeguard against improper alienations. That purpose will be amply served by insisting upon sanction of the Court, either previous or subsequent, so long, of course as there is an assurance that the. transaction could be examined on its merits, and there is an enquiry as to whether it is supported by legal necessity or benefit to the trust.
10. We wish to observe further that in this case there is no alienation of wakf property in the sense that the proceeds of the alienator have been spent away and, therefore, are irrcoverably lost to the institution. In this case what has happened is a sale of a particular wakf property and a re-investment of the sale proceeds in another property. That this kind of transaction was contemplated and permitted by Muhammadan Law is clear from several authorities. In 'Raddu-ul-muhtar', Vol. 3, page 600, we find that in the absence of any power of sale expressly, reserved in the deed of wakf the Kazi, if he deem it expedient, may authorise the sale of the wakf property and reinvestment of the proceeds in any shape conducive to the proper maintenance of the wakf. The following is from Surrat-ul-Fatawa, pages 420-421:
"In the Fatawa's Sirajia it is stated that when the sale or exchange of a wakf property is distinctly advantageous to the wakf, the Kazi may direct it. For example, if no income is derived from the property, and somebody is anxious to, purchase it, and in lieu thereof is willing to give such land or house as would yield an income for the wakf, in that case the exchange is authorised according to Abu Yousuf as well as Mohammed.
"Where the wakf property yields an income, but some person is desirous of exchanging it for another property yielding a much larger income, e.g. if the wakf property is a bazar situated in a lane and the person anxious to take it is willing to exchange it for a bazar situated in a better place, in such a case, but not otherwise the exchange is - lawful according to Kazi Abu Yousuf; on(?) this is the practice.
In the Commentary of Nazim Wahbandi it is stated upon the authority of the Muhit and Kazi Khan that according to Imam Mohammed the Mutavalli is authorised to exchange for a better and more productive piece of land the one dedicated, if it has deteriorated in productive powers."
11. To the same effect is the following passage in Fath-ul-Kadir (Vol. II, page 639): "In the Fatawari Kazi Khan it is stated that the rule laid down by Abu Yousuf & Hillal is correct. So has Ansari declared that SUCH a condition is lawfull but it cannot be sold (by the Mutavalli) without the sanction of the Judge, And when this matter is brought before the Judge and it appears to him necessary for the benefit of the wakf (that the investment should be changed), he should give the sanction."
12. Ameer Ali in his text book, has summarised the result of the authorities thus:
"The general result of the authorities seems to be that the wakf (mutawalli ?) may lawfully change the wakf property, in other words, alter the investment provided he has reserved, at the time of dedication, power to that effect. Otherwise, no alteration can be effected without the leave of the Kazi or Judge, who has the power to authorise a change of investment whenever he considers it beneficial for the wakf" (page 436).
13. No doubt, the sanction of the Kazi contemplated in these texts is sanction prior to the transaction. But we entirely agree with the learned Judges of the Calcutta High Court that no difference should be made between antecedent and subsequent sanction of the court which now takes the place of the Kazi.
13a. The learned advocate for the respondent contended that on the evidence it could not be said that the transaction was justified because the state of the building was not so bad as to render it thoroughly useless, that even if repairs were needed much money was not necessary and there were surplus funds at the disposal of the Mahlara for the execution, of the repairs. We were taken through the evidence on this point. But learned counsel for the respondent was unable to persuade us to come to a conclusion different from that of the learned trial Judge. We concur with the learned Judge who had the opportunity of seeing and listening to the witnesses, in his estimate of the oral evidence, namely, that the evidence on the side of the defendant is far superior to and deserves between credit than that of the plaintiff's witnesses. We also agree with him that the price fetched by the sale to the defendant was adequate and that the Mahlara had no surplus funds from which the building could be repaired and that the building was in need of extensive repairs which, could not be effected with a small amount. The learned Judge was of the opinion that the transaction was beneficial to the Mahlara (see para. 47), but he thought that as the transaction was not strictly necessary it was impossible for him to validate it retrospectively. We think otherwise. On the facts and in the circumstances above narrated it was clearly beneficial to the Mahlara that the Kayalpatnam property should be disposed of and the proceeds of the sale invested in a more remunerative property. Admittedly the Tuticorin property brought more income to the trust. The case was eminently fit for the exercise of the power of the court to grant retrospective sanction. We accordingly give the necessary sanction to the transaction.
14. In this view the suit must fail. It, therefore, becomes unnecessary to deal at length with the other grounds raised by Mr. Rajah Aiyar, namely, that the plaintiff Sabha is precluded from challenging the sale in favour of the defendant as it retained the benefit of the Tuticorin purchase. We are inclined, however to hold that it would be most inequitable to allow the plaintiff Sabha on behalf of the Mahlara to keep both the Tuticorin property and the property sold to the defendant. The Secretary of the Sabha deposed as follows:
"Tuticorin property belongs to the Mahlara now. With the sale proceeds of suit property the Tuticorin property was purchased......... I want both the properties, but I am prepared to pay the indemnity amount of Rs. 1550."
We are clearly of opinion the Sabha cannot be permitted to do this, that is, to keep both the properties.
15. The appeal is allowed and the suit dismissed with costs here and in the court below. The Memorandum of objections is not pressed and dismissed. No costs.