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BipIn Behari Saha Vs. Charu Chandra Ghose and on His Death His Heirs and Legal Representatives Soshi Bhusan Ghose and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal816,60Ind.Cas.753
AppellantBipIn Behari Saha
RespondentCharu Chandra Ghose and on His Death His Heirs and Legal Representatives Soshi Bhusan Ghose and ors.
Cases Referred and Ishwar Shyam Ghand Jiu v. Ram Kanui
Excerpt:
muhammadan law - wakf property--mutwalli, a minor female--mutwalli, temporary, proceedings for appointment of, pending--district judge, power of, to appoint receiver and grant lease--husband of minor female mutwalli, whether can act as mutwalli--suit for possession--defence, failure of--appeal, second--defence, new, whether can be set up. - .....person and of her, own persona] properties, have could have no authority to act as muiwalli of the wakf estate held be her, the grant to the defendant was consequently made by a person who had no authority to intervene in the matter, and there can be no dispute that a grant made under such circumstances is void and not voidable. reference may in this connection be made to the decision of the house of lords in president and governors of magdalen hospital v. knotts (1879) 4 app. csa. 324 : 48 l.j. ch. 579 : 40 l.t. 466 : 27 w.r. 602 where it was ruled that a lease of land belonging to an eleemosynary corporation, not in conformity with the provisions of the third section of the statute of elizabeth (13 eliz, 0.10), is absolutely void and not merely voidable. the principle enunciated in.....
Judgment:

Asutosh Mookerjee, Acting C.J.

1. The subject-matter of this litigation is a tract of land included n a wakf estate. The plaintiff-respondent seeks to recover possession of the land on he strength of a lease, dated the 19th Jane 1912, while the defendar bases his claim n a lease granted to him on the 16th November 1898. The case for the plaintiff was that the defendant never had a title ' the property, and that if he had a title as a lessee, his interest had been terminated by a notice to quit. There can be no doubt, in our opinion, that the plaintiff has established his title, while the defendant has failed to prove his allegations.

2. As regards the title of the plaintiff, we observe that the present mutwalli is a lady who is still a minor. Proceedings were instituted before the District Judge for the appointment of a temporary mutwalli during her minority, and during the pendency of such proceedings the Court granted a lease to the plaintiff through one of its officers who was appointed Receiver. A doubt has been suggested as to the validity of the appointment of the Receiver, but it is plainly needless to investigate that question. The essence of the matter is that the Court had section of the estate by virtue of the proceedings which had been instituted before it for the appointment of a temporary mutwalli who would manage the properties during the infancy of the permanent mutwalli. The Court was not only competent but bound to make suitable arrangements for the up-keep and administration of the estate in his day. The lease granted to the plaintiff was thus in substance an act of the Court in the exercise of its jurisdiction and must accordingly be pronounced valid and operative.

3. As regards the title of the defendant, it transpires that the lease was granted to him at a time when the wakf properties were in the hands of the infant mutwalli. The husband of the lady, who was a minor at the time, took it upon himself to grant a permanent lease to the defendant, who had notice that the property was included in the wdkf estate. It is plain that the husband of the infant mutwalli had no authority to act in the matter. A question was raised in the Court below as to who there he was the guardian of the person 01 the property of his infant wife. Under the Mubammadan Lal, the answer must plainly be in the negative. But even if the answer had been otherwise,: it is plain that, although the guardian of the lady could take chare of her person and of her, own persona] properties, have could have no authority to act as muiwalli of the wakf estate held be her, The grant to the defendant was consequently made by a person who had no authority to intervene in the matter, and there can be no dispute that a grant made under such circumstances is void and not voidable. Reference may in this connection be made to the decision of the House of Lords in President and Governors of Magdalen Hospital v. Knotts (1879) 4 App. Csa. 324 : 48 L.J. Ch. 579 : 40 L.T. 466 : 27 W.R. 602 where it was ruled that a lease of land belonging to an eleemosynary Corporation, not in conformity with the provisions of the third section of the Statute of Elizabeth (13 Eliz, 0.10), is absolutely void and not merely voidable. The principle enunciated in that case, though ignored in Shama charan Nandi v. Abhiram coustomer 33 C. 511 : 3 C.L.J. 306 : 10 C.W.N. 738 which was reversed by the Judicial Committee in Abhiram Goswami v. Shyama Charan 4 Ind. Cas. 449 : 36 I.A. 148 : 36 C. 1003 : 10 C.L.J. 284 : 6 A.L.J. 857 : 11 Bom. L.R.R. 1234 : 19 M.L.J. 530 : 14 C.W.N. 1 (P.C.), has been repeatedly followed in this Court; Chaitan Singh v. Sadhari Motrin 5 C.L.J. 62 Mathewson v. Sri Ram Kanai Singh 1 Ind. Cas. 626 : 9 C.L.J. 523 : 36 C. 675 Krishna Pramada Dasi v. Bwarka Nath Sen 20 Ind. Cas. 654 : 19 C.L.J. 360 : 17 C.W.N. 1092 and the same conclusion was reaahed in Madhu Sudan Mandal v, Madhkia Prasad Das 16 Ind. Cas. 927 : 16 C.L.J. 349 : 17 C.W.N. 873 and Ishwar Shyam Ghand Jiu v. Ram Kanui chose 10 Ind. Cas. 683 : 38 C. 526 : 33 I.A. 76 : 15 C.W.N. 417 : 9 M.L.T. 448 : 8 A.L.J. 528 : 13 Bom. L.R. 421 : 14 C.L.J. 238 : (1911) 2 M.W.N. 281 : 21 M.L.J. 1145 (P.C.) The defendant, consequently, has no title and cannot successfully resist the claim of the plaintiff.

4. The defendant finally contends that he has acquired a good title by adverse possession. The burden clearly lay upon him to allege and establish such title. That burden has not been discharged. This much is known that when his title as lessee commenced, the estate was held by n infant mutwalli, and at the present moment also the estate is in the hands of another infant mutwalli. Whether during the interval, the disability of the first minor ever ceased and if it ceased, at what time it terminated, has not been investigated. The defendant has invited us to remand the case to the Court of first instance for investigation of this point. We are unable to accede to his request. The litigation has already lasted for six years and the point now taken was not the ground urged in the Courts below to defeat the claim of the plaintiff. His contention, on the other hand, was that he had a valiJ title to the wakf property under the lease granted to him on the 16th November 1893. That defense has completely failed.

5. The result is that the decree of the District Judge is affirmed and this appeal dismissed with costs.

Ernest Fletcher, J.

6. I agree.


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