Banamali Roul vs Molla Saiyad Ali Hossain

Renupada Mukherjee, J.—This appeal arises out of a suit for eviction instituted by Respondent Saiyad Ale Hossain against the Defendants on the ground that the disputed lands formed part of a wakf estate of which the Respondent is the present Mutwalli and lease whereof for an indefinite period was given by his deceased father Syed Reyasat Hossain who was the previous mutwalli. The case of the Plaintiff Respondent was that as the disputed lands formed part of the wakf estate his father had no right to lease out the property for an indefinite period in excess of the authority. Upon these allegation the Plaintiff claimed khas possession of the disputed lands after the death of his father in 1947. The suit was instituted on September 29, 1948.

The suit was contested by the Defendants who raised various defences in the trial court. They contended that the civil court had no jurisdiction to try the suit and that the lands in question were secular and personal property of Sayed Rayesat Hossain find they did not appertain to the wakf estate alleged by the Plaintiff. It was further contended that even if it be assumed that the disputed lands formed part of the wakf estate the mutwalli had authority to grant the lease and the Defendants had acquired an occupancy right in the disputed lands which are cultivated by them.

The above defence of the Defendants was negatived by the trial court which decreed the suit in favour of the Plaintiff. An appeal was preferred by the Defendants but the appeal was also dismissed. In view of the circumstances of the case neither of the courts below allowed any costs to the Plaintiff.

This appeal has been preferred by the Defendants from the judgment and decree passed by the lower appellate court.

Mr. Banerjee appearing on behalf of the Plaintiff Respondent urged one preliminary objection before me. That objection has arisen in the following way. Appellant No. 5 of this appeal died during the pendency of this second appeal in this Court. His heirs have not been substituted in his place. Mr. Banerjee contended that the effect of the non-substitution of the heirs of deceased Appellant No. 5 makes the appeal incompetent. In support of his contention Mr. Banerjee relied on the case Naimuddin Biswas v. Maniruddin Lasker (1927) 32 C.W.N. 299. Mr. Roy Chaudhury, on the other hand, contended on behalf of the Appellants that the appeal can proceed at ;he instance of the remaining Appellants because the death of one of the Appellants has not made the appeal incompetent. In support of his contention Mr. Roy Chaudhury relied on the case Satulal Bhattacharjee v. Asiraddi Sheikh (1934) 38 C.W.N. 743. The case cited by Mr. Roy Chaudhury is exactly to the point. In that case a decree for khan possession had been passed in favour of the Plaintiff of that suit. The Defendants preferred an appeal to the High Court and during the pendency of the appeal one of the Appellants died and his heirs were not brought on the record within the time allowed by law. As a result, the appeal so far as the deceased Appellant was concerned abated. It was held that the appeal did not become incompetent and the court could reverse the whole decree under the provisions of Order XLI, Rule 4 of the Code of Civil Procedure. In my opinion, the real test as to whether an appeal can be prosecuted by some of the Appellants after the death of one of the Appellants without substitution of his heirs, is whether the surviving Appellants can challenge the whole decree. It cannot be controverted that where a decree for Mas possession is passed against several persons any one of the. judgment debtors is entitled to challenge the whole decree. That being the case the remaining Appellants of this appeal are entitled to prosecute the appeal by challenging the whole decree. In the case cited by Mr. Banerjee the Appellants were the landlords of a holding and the dispute involved in the appeal was the rate of rent of the holding. One of the landlords Appellants died during the pendency of the a peal and his heirs were not substituted. It was, therefore, held, and I must respectfully say that it was correctly held, that the appeal could not be proceeded with at the instance of the remaining landlords Appellants. In these circumstances and regard being had to the decision in Satulal Bhattacharjee''s case, I hold that the whole appeal has not abated by reason of the death of Appellant No. 5 and non-substitution of his heirs. The preliminary objection raised by Mr. Banerjee is therefore, disallowed.

I now come to the merits of the appeal. The first point raised by Mr. Boy Chaudhury on behalf of the appellants was that the civil court has no jurisdiction to decide the dispute which is involved in this suit and that it was the Wakf Commissioner alone who could have determined the dispute. In this connection Mr. Roy Chaudhury drew my attention to some of the sections of the Bengal Wakf Act, namely, Sections 27 and 46A. It would have been necessary for me to refer in detail to these sections if this particular wakf had been enrolled according to the provisions of Section 44 of the Bengal Wakf Act. It is admitted that the wakf has not been enrolled under the provisions of that section. That being the case I am not at all impressed by Mr. Roy Chaudhury''s argument that the civil court had no jurisdiction to entertain or to decide the suit. The first point raised by Mr. Roy Chaudhury therefore fails.

The other point raised by Mr. Roy Chaudhury on behalf of the appellants appears to have a good deal of substance. Mr. Roy. Chaudhury contended that the Appellants are agriculturists and they have acquired an occupancy right in the disputed lands. Mr. Roy Chaudhury referred me to Section 53 of the Bengal Wakf Act and submitted that the lease which was granted by the deceased father of the Plaintiff Respondent, Sayed Royasat Hossain, was a valid lease and as mutwalli he had authority to grant it. On a reference to the lease I find that it concerned a tank and some patit lands from which the mutwalli did not derive any income. The lease was given to the Appellants for the purpose of cultivating the tank and the patit lands. Sub-sections (1) and (4) of Section 53 of the Bengal Wakf Act are relevant for our consideration in this connection. They are quoted below:

(1) Except as provided in Sub-sections. (2), (3) and (4) no transfer by a mutwalli of any immoveable property of a wakf by way of sale, gift mortgage or exchange or by way of lease for a term exceeding five years shall be valid without the previous sanction of the Commissioner * * * * *

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(4) Nothing in this section shall apply to any lease of land by a mutwalli for the purpose of cultivation by the lessee or by members of his family or by servants or labourers or with the aid of partners.

Sub-section (1) restricts the authority of a mutwalli to sell, give away, mortgage or exchange any wakf property or to give lease for a term exceeding five years without the previous sanction of the Wakf Commissioner. This restriction does not, however, apply if the transfer by a mutwalli falls within Sub-sections (2), (3) and (4) of Section 53. I am here not concerned with Sub-sections (2) and (3) but with Sub-section (4) which provides that nothing in Section 53 of the Bengal Wakf Act would apply to any lease of Laid by a mutwalli for the purpose of cultivation by the lessee or by members of his family or by servants or labourers or with the aid of partners. In the present case the lease, on the face of it, was granted for the purpose of cultivation by the lessees. There is also evidence to show that the Appellants have been cultivating the demised property.

Mr. Banerjee contended on behalf of the Plaintiff Respondent that as Sub-section (4) of Section 53 of the Bengal Wakf Act makes the whole of Section 53 inapplicable to leases for the purposes of cultivation by the lessee, such lease would be governed by the general provisions of Mahomedan Law. Mr. Banerjee drew my attention to Section 208 of Mulla''s Mahomedan Law, 11th Ed., which lays down:

Power of mutwalli to grant leases-A mutwalli has no power to grant a lease of wakf property, if it be agricultural, for a term exceeding three years and, if non-agricultural, for a term exceeding one year (a) unless he has been expressly authorized by the deed of wakf to do so ; (b) or where he has no such authority, unless he has obtained the leave of the court to do so ; such leave may be granted even if the founder has expressly prohibited a lease for a longer term.

Belying on Section 208, quoted above, Mr. Banerjee submitted that a lease for purposes of cultivation would go out of the ambit of Section 53 of the Bengal Wakf Act and would fall u/s 208 of Mulla''s Mahomedan Law. I am unable to accept this contention. It is clear from Section 53 of the Bengal Wakf Act that that section at present codifies the whole law relating to the power of a mutwalli to transfer wakf property in West Bengal. This would be clear by a comparison of Sub-section (1) of Section 53 of the Bengal Wakf Act, with Section 208 of Mulla''s Mahomedan haw. Whereas Sub-section (1) of Section 53 of the Bengal Wakf Act confers upon the mutwalli the power to grant lease of any kind of land for a term not exceeding five years on his own authority, Section 208 of Mulla''s Mahomedan Law says that he has the power to grant a lease for three years only in the case of agricultural lands and for one year only in the ease of non-agricultuarl lands. In my opinion the general provisions of Mahomedan Law relating to the power of a mutwalli to transfer immoveable property belonging to a wakf have now been abrogated by Section 53 of the Bengal Wakf Act. That being so, and leases granted for purposes of cultivation not being governed by Section 53 of the Bengal Wakf Act, such leases would be governed by the general law relating to transfer of immovable property. In my opinion the power of a mutwalli to grant lease of agricultural lands is not restricted by any provisions of law.

In this connection Mr. Banerjee drew my attention to the case Abdul Rahaman Molla v. Abdul Hossain Molla (1936) 40 C.W.N. 585. That case, however, relates to the power of mutwalli to grant a permanent lease of wakf property under the Mahomedan Law. That was not a case under the Bengal Wakf Act. So the decision cited by Mr. Banerjee has no application to the facts of the present case.

Mr. Banerjee further contended that the major portion of the demised property consists of a tank and it should be presumed that lease of the tank was not taken for purposes of cultivation. There is, however, no indication in the lease to show that settlement of the tank was taken for any other purpose, namely, rearing of fish, etc. The document of lease shows that settlement was taken of both the tank and the patit land for purposes of cultivation. Under these circumstances I hold that the purpose of the lease was cultivation and nothing else. This contention of Mr. Banerjee also, therefore, fails.

On grounds set forth above I allow this appeal and set aside the judgments and decrees passed by the courts below and dismiss the suit of the Plaintiff Respondent. In the circumstances of the case I do not make any order for costs in this appeal.

Leave is asked for on behalf of the Plaintiff Respondent to file an appeal under Clause 15 of the Letters Patent but is refused.