1. The plaintiffs as mutawalis of certain waqf property brought this suit to recover possession of land belonging to the waqf and for a declaration that a mokarari maurusi lease, dated the 30th Aswin 1313, executed by a previous mutawalli, their' father Jamir-ud-din, in favour of the defendants Nos. 1, 2 and 3 was void. The first Court decreed the suit on the ground that the maurusi lease was void. On appeal it was held that the lease was not void if it could he shown that there was urgent necessity for granting it and the case was remanded to the first Court for a finding on that question. This remand was based on the authority of the case of Nemai Chand Adhya v. Mir Golam Hossein 3 Ind. Cas. 353 : 11 C. L. J. 317 : 140. W.N. 535 : 37 C. 179 at p. 187. On remand, the first Court found that there was no urgent necessity for the lease and, in consequence, it decreed the plaintiffs' suit. The lower Appellate Court, however, has reversed this finding and dismissed the suit and, in consequence, the 'plaintiffs have preferred this appeal. As already observed, when the case first went before the lower Appellate Court it was remanded on the authority of the case of Nemi Chand Adhya v. Mir Golam Hossein (1) and the learned Vakil on behalf of the respondents has urged in this Court, first, that that case is an authority whish we should follow in this appeal and secondly, that there is a finding of fact by the learned Subordinate Judge to the effect that there was urgent necessity for the granting of this lease. I think, however, that the circumstances of this case are so very different from those of Nemai Chand Adhya's case ( ) that the principles there enunciated have no application whatever here, and with regard to the suggestion that there is a finding of fact by the Appellate Court to the effect stated, I cannot agree because it appears to me that the words of the Subordinate Judge simply came to this that he regarded the substitution of a pucca durga for the thatched hut as desirable and prudent. That is not a finding that there was any urgent necessity. Now, if the Rule already mentioned is not applicable in the present case, then it appears to me clear on the authorities that this lease is void. It is not necessary to do more than to refer to the cases of Jew tin Dass Sahoo v. Shah Kubeerood-deen 2 M. I. A. 390 : 6 W. R, (P. C.) 3 : 1 Suth. P. C. J. 100 : 1 Sar. P. C. J. 208 : 18 E. R. 318. and Shoojat Ali v. Zumeeroddeen 5 W. R. 153. On the authority of these two cases, I am satisfied that this mauritxi lease is void. It is contended, however, on behalf of the respondents that the finding of the lower Appellate Court operates as a retrospective sanction, as effective as a previous sanction by the District Judge, and in support of that suggestion the learned Vakil refers to a passage in the case of Nemai Chand Adhya v. Mir Golam Hossein (1). Again the circumstances are so entirely different that I do not think the remarks there made have any application in the present cage.
2. The third point which is raised is this, that as the then mutawalli Jamiruddin actually received Rs. 400 by way of selami, the present mutawallis cannot have the lease set aside without refunding that sum. I take it that the learned Judge of the lower Appellate Court found that, as a matter of fact, the sum of Rs. 400 out of the selami was spent by the then mutawalli in building 4 pucca house and I think the present plaintiffs ought to refund that sum. The plaintiffs as mutawallis of the waqf property should refund that sum minus such sum as may be due by the lessees for rent in respect of the leased property and also minus the sum due to the plaintiffs by the defendants Nos. 1, 2 and 3 by way of the costs of this litigation in all Courts. An account of this sum will be taken by the Munsif and the mutawallis will be entitled to raise such sum by mortgage of the waqf property and pay the amount, so raised to defendants Nos. 1, 2 and 3, or they can mortgage the property to defendants Nos. 1, 2 and 3 to secure the sum found due; the Mansif will fix the rate of interest under the mortgage. This order does not impose any personal liability on the plaintiffs or on the mutawallis of the waqf property in respect of the sum found due. The Munsif after taking the account and determining the sum payable by the plaintiffs will fix a date within which the sum so found due is-to be paid-or a mortgage to secure the same executed by the mutawallis in favour of defendants Nos. 1, 2 and 3. If the sum so found due is riot paid within the time fixed or secured try mortgage the defendants Nos. 1, 2 and 3 will have a charge for that amount on the waqf property.
3. I agree.