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Akshoy Rumar Saha and ors. Vs. Brojendra Chandra Dutta and anr.ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in62Ind.Cas.674
AppellantAkshoy Rumar Saha and ors.
RespondentBrojendra Chandra Dutta and anr.ors.
Cases ReferredShoojat Ali v. Zumeerooddeen
Excerpt:
muhammadan law - wakf--permanent lease by mutwalli, validity of. - .....on a passage in mr. tyabji's principles of muhammadan law, 2nd edition, at page 625, where the learned author says: 'where the wakf' property consists of a house dedicated to the poor or other charitable object, the mutwalli may validly grant a lease of it for a year, and where it consists of lands, he may validly grant a lease for three years, and the lease is not determined by his death; provided, first, that where the mutwalli purports to grant a lease for a larger term than of a year or three years respectively, it is not void bat voidable; and secondly, that where it is necessary for the purposes of the wakf, the court may authorise a lease to be made for any longer term, notwithstanding that the declaration of wakf expressly provide that the lease shall not be made for a longer.....
Judgment:

Lancelot Sanderson, C.J.

1. In this appeal, which is an appeal by the plaintiffs from the judgment of the learned Additional Subordinate Judge of Chittagong, the only question with which we need deal, is whether the lease upon which the plaintiffs relied was a valid lease. It appears that the plaintiffs had been in possession of the land in question as tenants of the defendants and that the defendants succeeded in ejecting the plaintiffs from this land by means of a suit, and the learned Judge who tried the case came to the conclusion that the lease which the plaintiffs obtained from their lessor was not a bona fide one. But I do not base my judgment upon that point. The plaintiffs' lessor was a mutwalli of wakf property, The lease purported to be a permanent lease and it was stated that the rental was Rs. 13 per year. The defendants and their predecessors have been in possession of this property, at any rate from 1883, when a lease had been granted by the father of the plaintiffs' leaser before the endowment, and that in 1910 the defendants were recognized as tenants by the plaintiffs' lessor, Abdul Aziz, and the rent which was payable by the defendants and their predecessors was at the rate of Rs. 14 per year, so that the mutwalli, the plaintiffs' lessor, not only purported to grant a permanent lease to the plaintiffs but the plaintiffs were to pay rent which was less than the one anna which the defendants were paying. The learned Judge held that, under these circumstances, the lease to the plaintiffs was invalid, and that consequently the plaintiffs had not proved their title and were not in a position to sue the defendants for rent. In my judgment, without entering into the general question of the extent to which the mutwalli of wakf property, according to the Muhammadan Law, can grant a lease, and confining myself entirely to the particular facts of this case, in my judgment, in view of the fact that the lease by the mutwalli to the plaintiffs purported to be a permanent lease and was at a rent which was less than that which the defendants were paying, according to Muhammadan Law, that cannot be regarded as a valid lease, unless it can be shown by the plaintiffs that the lease which was granted to them by the mutwalli came within the scope and spirit of the endowment. There is no evidence of that. The wakfnama was not proved in Court; consequently, in my judgment, the learned Judge was right in his conclusion that, having regard to the terms of the lease, and the absence of any proof to show that this particular lease came within the scope of the endowment, he was bound to hold that it was invalid and that the plaintiffs had no title to sue the defendants for rent. Consequently, in my judgment this appeal should be dismissed with costs.

Richardson, J.

2. 1 agree. The learned Vakil for the appellants has relied on a passage in Mr. Tyabji's Principles of Muhammadan Law, 2nd Edition, at page 625, where the learned Author says: 'where the wakf' property consists of a house dedicated to the poor or other charitable object, the mutwalli may validly grant a lease of it for a year, and where it consists of lands, he may validly grant a lease for three years, and the lease is not determined by his death; provided, first, that where the mutwalli purports to grant a lease for a larger term than of a year or three years respectively, it is not void bat voidable; and secondly, that where it is necessary for the purposes of the wakf, the Court may authorise a lease to be made for any longer term, notwithstanding that the declaration of wakf expressly provide that the lease shall not be made for a longer term than a period therein specified' Now in support of the proposition that a lease by a Mutwalli for a longer term than one year or three years is not void but voidable, the learned Author relied upon a passage in Baillie's Digest. That passage, ho waver, is cited at length in the judgment of this Court in Shoojat Ali v. Zumeerooddeen 5 W.R. 158 to which my Lord has already referred, and the learned Author's statement of the law contains, at any rate, no express reference to a lease in perpetuity; further than that the learned Author does refer in a foot-note to Shoojat Ali's case 5 W.R. 158 and ha says in that note that it was then held that the trustees of an endowment cannot create a valid mirasi (perpetual, and heritable) tenure at a fixed rent by granting a lease of any portion of a wakf property. The learned Author, therefore, recognizes that whatever may be the case in respect of leases for a term, there is authority in the Calcutta High Court in the view that apart from express authority, a lease in perpetuity granted by a mutwalli is void on the face of it. That observation seems to me sufficient to dispose of the present case, where the lease purports to be a permanent lease.

3. I, therefore, agree that this appeal should be dismissed with costs.


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