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Madhi HussaIn Khan Ashurkhana Endowments and anr. Vs. Manivanna Naicker and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1580 of 1970
Judge
Reported inAIR1974Mad145
ActsMadras City Tenants Protection Act, 1922; Wakf Act, 1954 - Sections 9, 36-A and 57(2); Madras Hindu Religious and Charitable Endowments Act - Sections 34
AppellantMadhi HussaIn Khan Ashurkhana Endowments and anr.
RespondentManivanna Naicker and anr.
Cases ReferredDhanapalan v. Asst. Collector
Excerpt:
.....tenant and wakf - section 36-a does not bar application of section 9 in such tenancy agreement - held, tenant entitled to protection under section 9. - - ' unless the language clearly warrants otherwise, therefore, the provisions of the act will have to give effect to this object sought to be secured. as already stated, having regard to the object so sought to be secured, it is difficult to see how the liability imposed under that act on a trustee, who is also a landlord to sell the land, could be defeated by the latter half of the definition in the explanation to section 9. as held by the full bench in ilr (1925) mad 761 =air 1925 mad 7 (fb) it is wrong to seek to control a statute which is obviously intended to overrule the ordinary law, by general considerations imported from..........to the validity of the tenancy in favour of the first defendant. the second defendant is the state wakf board. after issuing the prescribed notice, the plaintiff has filed the suit for eviction. the first defendant claimed that he was entitled to the benefit of the madras city tenants protection act, 1922, as amended in 1955. he also filed an application under section 9 for purpose of the land.2. the only point that arises for consideration in this second appeal is as to whether, in respect of a land which belongs to a wakf, a tenant could invoke the provisions of section 9. the learned counsel for the appellant contended that, unlike a trustee of hindu religious and charitable endowments, a mutavalli of a wakf has no power to sell under any circumstances, except with the sanction of the.....
Judgment:

1. The plaintiff, which is a Wakf represented by its mutavallis, is the appellant. The suit was for eviction of the first defendant from the suit property, namely, land and premises bearing door No. 134-A Peters Road, Royapettah, Madras. There is no dispute now that the first defendant is a tenant of the land, and he had put up the superstructure thereon. There is also no dispute as to the validity of the tenancy in favour of the first defendant. The second defendant is the State Wakf Board. After issuing the prescribed notice, the plaintiff has filed the suit for eviction. The first defendant claimed that he was entitled to the benefit of the Madras City Tenants Protection Act, 1922, as amended in 1955. He also filed an application under Section 9 for purpose of the land.

2. The only point that arises for consideration in this second appeal is as to whether, in respect of a land which belongs to a wakf, a tenant could invoke the provisions of Section 9. The learned counsel for the appellant contended that, unlike a trustee of Hindu Religious and Charitable Endowments, a Mutavalli of a wakf has no power to sell under any circumstances, except with the sanction of the Wakf Board under Section 36-A of the Wakf Act, 1954. It is true, that in a case not governed by the Madras Hindu Religious and Charitable Endowments Act, a trustee of Hindu religious and Charitable endowments has power to sell, when the sale is for necessity or for the benefit of the estate. Prior to the passing of the Wakf Act, a mutavalli had power to sell only with the previous sanction of a civil Court. It is, therefore, contended by the learned counsel that Section 9 could not be invoked by a tenant of Wakf property.

3. The preamble to the Madras City Tenants Protection Act states that the Act is enacted 'to give protection to tenants who in municipal towns and adjourning areas in the State of Madras have constructed buildings on others' lands in the hope that they would not be evicted so long as they pay a fair rent for the land.' Unless the language clearly warrants otherwise, therefore, the provisions of the Act will have to give effect to this object sought to be secured. Section 1(3) excludes the application of the Act to certain tenancies of land. Tenancies of lands owned by Wakfs or trusts or Endowments are not excluded from the operation of the Act. It would not also be correct to assume that the draftsman and the Legislature were not aware of tenancies of lands belonging wakfs and other trusts. That the definition of 'landlord' under Section 2(3) includes a trustee or mutavalli, could not be disputed, as in such a case the trustee or mutavalli is acting on behalf of the legal owner, namely, the deity or Almighty. If any authority is required for this purpose, we may refer to Doraivelu Mudaliar v. Natesa Gramani, ILR (1925) Mad 761 = AIR 1925 Mad 7. That the first defendant is a tenant in respect of the suit land and there is a valid tenancy in his favour, are not disputed. Therefore, prima facie the Act applies to the instant case. But the learned counsel for the appellant place reliance on the Explanation to Section 9 and contended that the Act is applicable only to cases where the Mutavalli would be entitled to sell the land without the concurrence of a third party authority. The Explanation to Section 9, as it originally stood before its amendment, ran as follows:--

''Land' means the interest of the landlord in the land and all other interests which he can convey under any power.'

Even as the Explanation stood before the amendment, this court held in ILR (1925) Mad 761 = AIR 1925 Mad 7, that the definition of land given in Section 9 was descriptive of the interest of the landlord and the explanation was inserted to provide that the whole of the interest of the landlord shall be conveyed to the tenant, not merely his own interest but any other interest which he could convey under any power. The learned Judges also held :

'A trustee landlord can convey the interest of the trust in certain given circumstances. Two of those circumstances have been already referred to, necessity and benefit for the trust--and I think there is added a further one by this new Act III of 1922, namely, when a tenant has been in possession of the land and has put up a superstructure on the land and to eject whom would be in certain circumstances plainly inequitable without compensation, and in other circumstances, such as the one contemplated by the section would be inequitable without giving him an opportunity of acquiring the land for himself on payment'.

The Explanation to Section 9, after its amendment, read as follows-

''Land' means the interest of the landlord in the land and all other interests which he can convey under any power and includes also the future interest which a trustee can convey under the power possessed by him to convey trust property when necessity exists for the same or the alienation of the property is for the benefit of the estate or trust.'

It will be seen that all the words used in the Explanation as it originally stood, have also been incorporated in the amended Explanation. In my opinion, the amendment was not intended to restrict the scope of the application of Section 9, but rather it was intended to enlarge the definition or to remove the doubts, if any, and give effect to the decision of the Full Bench in Doraivelu Mudaliar v. Natesa Gramani, ILR (1925) Mad 761 = AIR 1925 Mad 7. This was also so held by a Division Bench of this court in Sundareswarar Devastanam v. Marimuthu : AIR1963Mad369 . In this connection it is useful to refer to the decision of a Single Judge of this Court in Dhanapalan v. Asst. Collector, Dindigul, (1966) 79 MLW 133. It was held in the latter case that the explanation to Section 9 is only descriptive of the character of the land and therefore, what the latter half of Sec. 9 meant is that lands, which could be alienated for necessity or benefit, are also included in the definition of land. As already stated, having regard to the object so sought to be secured, it is difficult to see how the liability imposed under that Act on a trustee, who is also a landlord to sell the land, could be defeated by the latter half of the definition in the Explanation to Section 9. As held by the Full Bench in ILR (1925) Mad 761 = AIR 1925 Mad 7 (FB) it is wrong to seek to control a statute which is obviously intended to overrule the ordinary law, by general considerations imported from Mohammedan Law or what is called the common law of India. Though the decision in : AIR1963Mad369 , related to a land belonging to a Hindu trust, there are a number of observations which lend support to the effect that lands belonging to wakf are not excluded from the operations of the provisions of Section 9. A passage in the judgment in that case reads-

'It (land in that case) is one which can be disposed of by a trustee of a Hindu temple in the context of justifying circumstances, or if it were to belong to a Muslim wakf, by the mutavalli after obtaining sanction of a court. In regard to such properties, the first question to be considered will be whether the original lease of the property is valid. If the lease is not a valid one, so as to bind the institution the person to whom the property has been let can hardly be said to be a tenant within the meaning of the Act. If, however, it is held that the lease of the trust property was one made in the ordinary course of management or for the benefit or necessity of the institution or with the sanction of court, the tenant will be a lawful tenant.'

Clearly, therefore, the lands belonging to a wakf, in respect of which there was a valid tenancy, are not excluded from the operation of the provisions of Section 9.

4. It is next contended by the learned counsel for the appellant that Section 36-A of the Wakf Act prohibits the sale of the previous sanction of the Board, and that, therefore, Section 9 of the City Tenants Protection Act could not be invoked. In my opinion, Section 36-A is not a bar for the applicability of Section 9 of the City Tenants Protection Act. Section 36-A prohibits voluntary transfer without the previous sanction of the Board and not involuntary transfers or transfers by orders of Court. This is also clear from a reading of Section 57(2) of the Wakf Act which states that, whenever any wakf property is notified for sale in execution of a decree of a civil court or for the recovery of any revenue, cess, rates or taxes due to the Government or any local authority, notice shall be given to the Board by; the court, Collector or other person under whose order the sale is notified. In this case, the Wakf Board has been impleaded as a party and, therefore, no question of issue of notice under Section 57(2) arises. In fact, the written statement filed by the second defendant, Wakf Board, is that the amount of compensation which is to be paid for the land by the tenant, should be deposited in court to the credit of the Wakf Board and they did not raise any objection that the sale should not be effected without the previous sanction. Section 36-A does not have any overriding effect on the provisions in other enactments. It may also be noticed that there is a similar prohibition of sale or mortgage by a trustee of Hindu Religious and Charitable Endowment under Section 34 of the Madras Hindu Religious and Charitable Endowments Act. In spite of this prohibition, it has been held in a number of cased, including in : AIR1963Mad369 , that Section 9 of the City Tenants Protection Act is applicable to lands held by Hindu Religious and Charitable endowments. In my opinion, therefore, Section 36-A of the Wakf Act is not a bar to the applicability of Section 9 of the City Tenants Protection Act to the lands held by Wakfs, where there is a valid tenancy.

5. In the result, the judgments and decrees of the courts below are confirmed and the second appeal is dismissed. The appellant and the first respondent will bear their respective costs. The second respondent, the Wakf Board, will be entitled to get the costs of Rs. 150/- from the Wakf estate. No leave.

6. Appeal dismissed.


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