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Gajendra Nath Dey Vs. Moulvi Ashraf Hossain - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal130
AppellantGajendra Nath Dey
RespondentMoulvi Ashraf Hossain
Cases ReferredMagdalen Hospital v. Knottt
Excerpt:
- .....rent to the detriment of the wakf estate.4. it is well-settled that a mutwalli should not lease wakf property, if it be agricultural, for a term exceeding three years, and, if no-agricultural, for a term exceeding one year, unless he is expressly authorised by the deed of wakf to do so, or, where he has no such authority, unless he has obtained the leave of the court to do so. tyabji (muhammadan law, section 502 states that where the wakf property consists of a house dedicated to the poor or other sharitable 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, provided that where the mutwalli purports to grant a lease for a longer term than a year or three years, respectively, it is not void but.....
Judgment:

1. This appeal is directed against the decision of the President of the Calcutta Improvement; Tribunal in a case for apportionment of compensation in respect of laud acquired for the Calcutta Improvement Trait under a declaration published on the 27th March 19.8. The rival claimants are the lessor and the lessee of the disputed property. The President has decided that the-lessor is entitled to the entire compensation money awarded for the land. The lessee has consequently appealed to this Court.

2. The President has found that the land in question was valid wakf and that the lessor was the mutualli. No serious attempt has been made in this Court to controvert this conclusion. The evidence shows that the rents and profits have been for many years appropriated to defray the expenses of a mosque, and the property is deserted throughout as wakf in all the relevant documents. The case must, consequently, be decided on the footing that the land acquired was a valid wakf.

3. On the 14th April 1880 Rakhal Chandra De, the father of the present lessee, who had already been a tenant in occupation on a rent of Rs. 22 monthly, took a lease of the land from Abdul Ali, mutwalli, and executed a kabuliyat in his favour. A premium of Rs, 50 was paid, the rent was fixed at Rs. 23 monthly, and the tenancy, it was provided, would fast for a term of ten years from the 12th April 1880 to the 12th April 1890. The kabuliyat eraboiiei a covenant for the renawal of the leasse for a period of ten years after the expiration of the term granted by the lease, and stated expressly that if the land should be asquired by the Government, the lessor alone would get the compensation for the land and the lessee would take the compensation for the brick-built structure. The term of the lease expired and the lessee held over. On the 27th January 1891 Abdul Ali mutwalli, the landlord, again granted a lease to Rakhal Chandra De, on a rental of Rs, 23 a month and for a term of ten year* from the 13th January 1391 to the 13th January 1901. The patta reproduced the provision of the earlier lease for distribution of compensation money in the event of acquisition, and farther contained a covenant that on the expiry of the term a, fresh' settlement would be made at a proportionate rent. The term expired and the tenant again held over, On the 9th Marsh 1901, a fresh patta was granted by muttealli Ashraf Hussain (who had meanwhile succeeded to the office) to Rakhal Chandra De on a monthly rent of Rs. 23 and for a term of ten years from the 14th Marsh 1901 to the 14th March 1911. The pitta stated that if it should be necessary for the Government to acquire the land, the lessor would take the compensation for the land in accordance with the ruler, while the lessee alone would get the compenstation paid for the building. There was further a covenant that the lessee would be entitled, on the expiry of the term, to gat fresh pattas for ten years at a time on a rent of Rs. 23 monthly and thus remain in possession with heirs in succession. The term of this lease expired on the 14th March 1911 and, though the tenant continued in osculation, no fresh lease had been granted up to the time of the acquisition. The lessor now claims the entire compensation under the terms of the lease; the lessee, on the other hand, contends that, by virtue of the covenant for perpetual renewal, he must be deemed to hold under a permanent lease at a fixed rent, so that the landlord is not entitled to anything beyond the capitalised value of the rent, In reply, the lessor. urges that if the legal effect of the covenant for renewal be to transform the lease into a perpetual grant at a fixed rent, the lease does not bind the wakf estate because treated by the mutwalli in excess of his authority. The President has held that the lease is not operative as a permanent lease of the wakf estate and that, at the date of the acquisition, the lessee bad no higher status than that of a tenant from month to month. He has further held that the lessee did not by lapse of time acquire the status of a perpetual tenant at a fixed rent to the detriment of the wakf estate.

4. It is well-settled that a mutwalli should not lease wakf property, if it be agricultural, for a term exceeding three years, and, if no-agricultural, for a term exceeding one year, unless he is expressly authorised by the deed of wakf to do so, or, where he has no such authority, unless he has obtained the leave of the Court to do so. Tyabji (Muhammadan Law, Section 502 states that where the wakf property consists of a house dedicated to the poor or other sharitable 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, provided that where the mutwalli purports to grant a lease for a longer term than a year or three years, respectively, it is not void but voidable. This is in accord with the statement in Baillie (Muhammadan Law, Volume I, page 606): 'When the superintendent of a wakf has let a mansion appropriated for the poor for more than a year, the lease is unlawful. In the absensc of any condition, the approved doctrine is that the lease of estates in land may be decreed to be lawful for three years, unless it be for the benefit of the wakf to annul them; and that with regard to leases of other property, they should be decreed to be unlawful when they exceed one year, unless it be for the benefit of the wakf to sustain them. But this varies with the change of plates and times. This is approved for the Fatwa' Substantially to the same effect is the statement by Sir Ronald Wilson (Anglo-Muhammdan Law, Section 337). The original authorities colleated by Ameer Ali (Mabammadan Law, Volume I) show that the limitation with regard to the duration of a lease, imposed by the earlier Jurists in respect of walf property, has been gradually modified, and the rule now stands in a much more elastic form than when it was first enunciated.

5. In the Fatawa-i-Kazi Khan, which .is one of the earlier authorities, it is stated in sub-stanse that: 'Where the wakif has made no provision in the document of wakf (about the grant of leases in respect of the wahf property) the mutwalli has a discretion to do what is proper and to the advantage of the poor (in other words, the beneficiaries), subject to the condition that he should not ease a house for a longer term than one year, for a long lease is apt to give rise to the idea that the lessee is the owner. And he may not give a longer lease of land than is necessary for purposes of cultivation, Should the wakif have imposed a condition that the land shall not be leased for more than one year, and people are not willing to take such a short lease, and it is to the advantage of the beneficiaries to lease the property for a longer period, the Kyyum (the mutwalli) cannot act contrary to the condition in the wakf and give a longer lease, unless he submits the matter before the Kazi who can sanction a longer lease on the ground that it is to the advantage of the wakf, for the Kezi is the supervisor over (the interests of) the poor, the absent and deceased persons.

6. And should the wakif have provided in the document of wakf that the mutwalli shall not grant a lease for more than a year unless it is for the advantage of the poor (the beneficiaries), in which case he (the mutwalli) may do to himself, (i.e., of his own authority) if he considers it expedient, and it doss not require being taken to the Court of the Kazi, for the wakif has (already) given him the power,

7. In sate the mutwalli has treated a lease for five years, Shaikh Abu'l Kasim of Balkh has declared that it would not be valid over a year, unless some need has arisen for expediting the rent; but, (ays the Jurist Abu Baki-Mohammad bin al Fazl that he does not consider such a lease should be held to be void, but the Hakim (Judge) should take note of it, and if it is to the injury of the wakf he should cancel it.

8. 'Abu'l Hassan Ali As-Sugdi has expressed the same view. And it is stated from the Jurist Abu Lais that where the wakif had imposed co condition against a lease being granted for more than a year, he permitted it to be given for three years, irrespective of the question whether the property was house or land. It is reported from Imam Abu Hafs Bokhari that he permitted the lease of land for three years. But there is a difference of opinion regarding (the effect of) a lease for more than three years the majority of the Jurists of Balkh have held that such a lease is not valid, whilst others have declared that it is to be submitted to the Kazi, so that he may cancel it and this doctrine the Jurist Abu Lais has adopted,'

9. In the Durr-ul-Mukhtar, the rule it given in a more compendious form. 'Any conduction imposed by the wakif regarding the, leading of wakf property mast be followed, and the Kyyum (mutwalli) cannot Act contrary to it, but the Kazi may, for to him appertains the supervision over the interests of the poor, the absent and deceased people. So where the wakif has left indeterminate the period for which wakf property may be leased, some (Jurists) have laid, the Kyyum has a general discretion as to the length of the term ; whilst others have said, the limit should be one year in all cases, And the Fatwa is with regard to a year for (the lease of) houses and three years in respect of land, unless expediency is opposed to this, end expediency varies according to time and locality.'

10. The author of the Radd-ul-Muhtar in commenting on the above passage makes an important statement on the authority of the Fatawai Kari-ul-Hedaya : ' When the repairs of the wakf premises cannot be effected without letting (some portion of) it, the maltar must be placed before the Judge who can direct the grant of a lease long enough for that purpose.'

11. The view thum indicated was adopted by this Court in Shoo at Ali v. Zumesrocddeen 5 W.R. 168, where a lease in perpetuity at a fixed rent, granted by a mutaalli in respect of wakf property, was declared void, even on the supposition that the office of the mutwalli was hereditary, and the contrary view adopted in Dalrympls v. Khoondkar Azizul Islam (1858) Beng. S.D.A. 656 : 17 Ind. Dec. (o.s.) 433 was pronounced to be unsupported by any authority, and unsound in principle.

12. In the case before us, each of the three successive leases for a term of ten years was prima facie in excess of the authority of the mutwalli and was liable to be annulled as unlawful, unless established to he for the benefit of the wakf, which has not been done in this case. The contention that the lease granted on the 9th March, 1901 for a term of ten years with a perpetual covenant for renewal should be interpreted as a permanent lease at a fixed rent and should be deemed operative against the wakf is manifestly untenable. The lease has not in fact been renewed ; bad the lessea invokes the aid of Walsh v. Lonsdale (1882) 21 Ch .D. 9 : 52 L. J. Ch. 2 : 43 L.T. 858 : 3 W.R. 109, and urges that this is immaterial, for, in equity, he is precisely in the same position as if the lease had been renewed, This argument is fallacious No doubt, it i$ well settled, as the result of a long aeries of decisions in this Court, that when in pursuance of an agreement to transfer property, the intended transferee has taken possession, though the requisite legal documents had not bean executed and registered, the position is the same as if the documents had been executed, subject to the all important proviso that 'Specific performance can be obtained between the parties to the agreement in the same Court and at the same time as the subsequent legal question falls to be determined. We need not here emphasise the cirsumstance that specific performance could not be obtained before the Caloutta improvement Tribunal; of Foster v. Reeves (1892) 2 Q.B. 255 : 61 L.J.Q.B. 733 : 37 L.T. 537 : 40 W.R. 695 : 57 J.P. 23, Angel v. Jay (1911) 1 K.B. 666 at p. 667 : 80 L.J. K.B. 458 : 103 L.T. 809 : 55 S.J. 140. Apart from this, reference may be made to the decision in Sayam Kishors Be v. Umesh Chandra 55 Ind. Cas, 154 : 31 C.L.J. 75 : 24 C.W.N, 463, which reviews the earlier decisions from Bibi Jawahir Kuvari V. Chattrerput Singh 2 C.L.J. 343 onwards, As was pointed oat in Hripada Ghose v. Nirod Krishna Ghose 61 Ind . Cas. 637 : 33 C.L.J. 437 the result of these uses may be reashed either by the application of the doctrine of part performmse enumciated in Maddison v. Alaerson (1883) 8 A.C. 467 : 52 L.J.Q.B. 737 : 49 L.T. 303 : 31 W.R. 820 : 47 J.P. 821, which was followed by the Judicial Committee in Mahomed Musa v. Aghore Kumar Gangui 23 Ind.Cas. 933 : 42 I. A. 1 : 42 C. 834 : 21 C. L. J. 231 : 19 C.W.N. 250 : 17 Bom. L.R. 420 : 28 M.L.J. 548 : 13 A.L.J. 229 : 17 M.L.T. 143 : 2 L.W. 258 : (1915) M.W.N. 621 (P.C.) or by the application of the rule in Walsh v. LonsMe (1882) 21 Ch .D. 9 : 52 L. J. Ch. 2 : 43 L.T. 858 : 3 W.R. 109. The dostrine of part parformance is clearly of no avail to the appellant, For, assuming with Baggallay, L.J. Aldenoii v. Maddison (1881) 7 Q.B.D. 174 at. p. 178 : 520 L.J.Q.B. 466 : 45 L.T. 334 : 2 W.R. 556, that mere retention of posssession is not in itself sufficient to constitute part parformance, though the contrary view has been some times favourad, Lanyon v. Martin (1884) 13 L.R. Ir. 297, and assuming further that special circumstances must be established to show that it is necessarily referable to an agreement for a lease or contrast for renewal, Dowell v. Dew (1842) I Y.& C.C.C. 345 : 57 R.R. 366 : 62 E.R. 918; such contract for renewal must be enforceable in a Court of Equity. Nor is the rule in Walsh v. Lonslah (1882) 21 Ch .D. 9 : 52 L. J. Ch. 2 : 43 L.T. 858 : 3 W.R. 109 of greater effaecy to the appellant, unless the contract for renewal is valid and operative For, though on the assumption made in Secretary of State v. Forbes 7 Ind. Cas 180 : 16 C.L.J. 217; Lani Mia v. Muhammad Easin Mia 33 Ind. Cas. 448 : 20 C.W.N. 948, ' Secretary of State v. Digambar Nanda 45 lad. Cas 939 : 27 C.L.J. 443 : 46 C. 160 and Secret try of State for India v. Stbaprosad Jana 45 Ind. Cas 983 : 27 C.L.J. 447, the position of a lesses who has always been ready and willing to accept a renewal on proper term?, is the same in equity as if a proper lease has been granted, it is esential that' the convanant far renewal should be such as may be specifically enforced, In the case before us, the lessor was not competent to grant a lease of this dcrcription It cannot be disputed that no Court of Equity will grant specifies performance where a trustee has entered into a contract for a lease which is in exeess of his power or has entered into a covenant for renewal which is ultra vires. In Harett v. Yellding (1805) 2 Sch,, &.Lef. 549 at p. 553 : 9 R.R. 93, Lord Redesdale, L.C., said that the party who comes into equity for a specify Performa, must show that in seeking the performa he does not shall upon the other party to do an act whish he is not lawfully competent to do for if he does, a consequence is produced that quite passes by the object of the Court in exercising the jursdiction, which is to do more complete justice; if a party is com-polled to daan act which he is not lawfully authorised to do, ha is exposed to a new action for damages, at the suit of the person injured by such act. To the same effect, is the decision of the House of Lords in Byrne v. Acton (1721) 1 Bro.P.C. 186 : 1 E.R. 601 where it was held that a tenant for life, who bed agreed to grant a lease for thirty one years, in exsess of his power which was limited to the grant of leases for twenty-one years or three lives, was bound to grant such a lease as was warranted by the power. Again, in Bell-ringers. Blagrave (1847) 1 DeC. & Sm. 63 : 75 E.E. 38 : II Jur. 407 : 68 E.R. 972, Knight-Brncs, V,0., referred to Mortlock v. Bulkr (1804) 10 Ves. 292 : 7 E.R. 417 : 32 E.E. 857 and Ord V. Noel (1820) 5 Mad. 438 : 21 R.R. 328 : 56 E.R. 962 and ruled that the Court would not interfere for the purpose of performance of a covenant for renewal such as would enable or assist parties to commit a breach of trust. This view has been repeatedly followed in this Court; gee, for instance, Baihuntha Bank v. Shib Dass 2 C.L.J, 83, Sarbeih Chandra Basu v. Hari Dayal Singh5 Ind. Cas. 236 : 11 C.L.J. 346 : 14 C.W.N. 451, Moke Don v. Mudhco Soodun 1 W.R. 4 Narain Patter y, Auhhoy Narain 12 C. 152 at p. 168 : 6 Ind. Dec. (N.S.) 104, Mahomed Eimat Khan v. Nunda Dulal Chakaabarti 16 Ind. Cas. 390, Shulna Loan Co. Limited v. Jahir Goldar 24 Ind. Cas. 209. The conclusion follows that in this case the covenant for renewal could not be specifically enforced. Consequently, when upon the expiry of the lease granted on the 9th March 1901, the lessee held over, the lease was, under Section 116 of the Transfer of Property Act, read with Section 106, renewed from month to month Troilokya Nath Boy v. Sarat Chandra Banerjee 32 C.123 : 8 C.W.N. 901, Manilal Dalpatram v. Nandlal Keshathl 55 Ind. Cas, 610 : 22 Bom. L.R. 133 see also Clayton v. Blakey (1798) : 8 T.R. 3 : 4 R.R. 575 : 101 E.R. 1234.

13. As a last resort the appellant has contended that as he always professed to hold as a permanent lessee, he acquired such status by adverse possession for twelve years from the date of the last lease, This contention is sleekly opposed to the decision of the Judicial Committee in Vidya Vant'ri Thirtha v. Balutami Ayyar 65 Ind. Cas. 18l : 43 I.A. 302 : 41 M. 831 : (1921) M.W.N. 449 : 41 M.L.J. 346 : 3 U.P.L.E. (P.C.) 62 : 15 L.W. 78 : 30 M.L.T. 66 : 3 P.L.T. 245 : 26 C.W.N. 537 : 24 Bom. L.R. 629 : 20 A.L.J. 497 : (1922) A.I.E. (P.C.) 123 (P.C.), which shows that where the manager of a religious endowment had granted a parmicent lease in exsess of his authority, the possession of the lessee was not adverse to the endowment during the life of the head who granted the lease. The case before us has no analogy to the decision of the House of Lords in Magdalen College v. Attorney' General (1857) : 6 H.L.C. 189 : 108 R.R. 62 : 26 L.J.Ch. 620 : 3 Jur. (N.S.) 675 : 5 W.R. 716 : 29 L.T. (n.s.) 239 : 10 E.R. 1267 which was applied in Attorney-General v. Datey (1859) 4 De. G. & J. 136 : 121 B. R. 191 : 45 E.E. 53; it rather falls within the rule recognised by the House of Lords in Magdalen Hospital v. Knottt (1875) 4 App. Cas. 324 : 48 L.J. Ch. 579 : 40 L.T. 468 : 27 W.R. 602, namely, that if any rent has been reserved and received, however small, the legal relation of a tenaney from year to year has been created and the Statute of limitations cannot have run. We hold, accordingly, that the President has correctly concluded that, at the time of the acquisition, the lessee was a tenant from month to month and that his claim to appropriate what is in substance the corpus of the wakf estate has no legal foundation.

14. The result is that the decree of the-lower Court it affirmed and this appeal dismissed with costs. We assess the hearing fee at one hundred rupees The costs will be paid by the Receiver out of the estate in his hands.


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