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i. Balu Mudali and ors. Vs. V. Durvasalu Pillai - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in34Ind.Cas.570
Appellanti. Balu Mudali and ors.
RespondentV. Durvasalu Pillai
Excerpt:
muhammadan law - wakf--mutwalli--lease for over three years, whether void or voidable--sub-lease--sub-tenants, whether can question their lessor's title--estoppel. - .....i declined to hear him on the point, as it was not taken in the lower court. the village is an inam village settled by the inam commissioner. if this point had been raised in the lower court, evidence may have been forthcoming to prove the nature of the grant and to prove that the grantee was the owner of the kudivaram at the time of the grant. mr. govindaraghava aiyar contends that the documents filed in the case establish that the inam was only of the land revenue and that the grantee was not the owner of the kudivaram, but seeing that the plaintiff in any event will have to be given an opportunity of adducing evidence on these points, i did not think it right to allow the petitioner to raise it here in revision. after all it cannot affect the liability of the defendants if they.....
Judgment:

Srinivasa Aiyangar, J.

1. Mr. Govindaraghava Aiyar wanted to raise a contention that ordinary Civil Courts have no jurisdiction, as the suit village was an ' Estate ' as defined by the Estates Land Act. I declined to hear him on the point, as it was not taken in the lower Court. The village is an inam village settled by the Inam Commissioner. If this point had been raised in the lower Court, evidence may have been forthcoming to prove the nature of the grant and to prove that the grantee was the owner of the kudivaram at the time of the grant. Mr. Govindaraghava Aiyar contends that the documents filed in the case establish that the inam was only of the land revenue and that the grantee was not the owner of the kudivaram, but seeing that the plaintiff in any event will have to be given an opportunity of adducing evidence on these points, I did not think it right to allow the petitioner to raise it here in revision. After all it cannot affect the liability of the defendants if they are liable.

2. The substantial question argued was whether the plaintiff has any title to sue the defendants for rent. This depends on whether the inam was a personal inam, or masjid inam and, therefore, wakf property, and if it was the latter, whether the plaintiff's lease which was for over three years was absolutely void. On the former question the lower Court came to the conclusion that it was a personal inam. I am unable to agree in this conclusion. The Inam Register, Exhibit D, shows that the inam was a masjid inam and was confirmed as such. Though there have been sub-divisions of the inam that cannot convert it to a personal inam if it was originally deradayam. It is unnecessary to pursue this matter further, as the learned Counsel for the respondent did not support the finding of the Judge on this point. I might, however, point out that the Settlement Register is not of much value in determining the particular class to which an inam belongs. Under the Muhammadan Law, in the absence of any rules or, conditions regulating the power, the mutwalli has the power of leasing agricultural land for three years and with the sanction of the kazi for a longer term. Of course he can only lease it for the best rent. But if the lease is granted for a longer term without such sanction, is it absolutely void? In Mr. Ameer Ali's book in the section headed The Lease of Wakf Property', the author set, out views of various jurists, some of them holding that the mutwalli, in the absence of a prohibition in the deed of endowment, can, if it is to the advantage of the wakf, grant a longer term. Looking to the reason of the thing, I am inclined to think that if the lease is granted in the usual course of management and in the customary manner, a longer term than the prescribed period may be allowed. Ameer Ali, page 477, et seq. I am unable to hold that a lease for over three years is absolutely void; but it may be set aside even at the instance of the trustee. This is the view taken by a learned writer, Mr. Tyabji, in his Muhammadan Law, page 42.1. He cites Bailee, 2nd edition, page 606. Though the passages in Bailee are not quite clear, I think the reasonable inference to be drawn is that, in the author's view, such leases were not void but only voidable. The learned Pleader for the petitioner relied on certain cases of sale. But a sale stands on a different footing from a lease. A lease may be merely an act of management, but a sale is not.

3. The tenants who recognized the plaintiff as their landlord do not contend that they did so owing to any misapprehension or mistake; the lessors of the plaintiff have, not repudiated the lease, nor have the tenants paid the rent to anybody.

4. In these circumstances I confirm the decrees of the lower Court though not for the same reasons. The petitions' must be dismissed with costs.


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