AI Structured Summary
Not yet generated for this judgment
Judgment
V. Ramaswami, J.—The plaintiff, which is a wakf represented by its Mutavallis, is the appellant. The suit was filed for eviction of the first
defendant from the suit property, namely, land and premises bearing door number 134 -A, Peters Road, Royapettah, Madras There is no dispute
now that the first defendant is a tenant of the land, and he had put up the superstructure thereon. There is also no dispute as to the validity of the
tenancy in favour of the first defendant. The second defendant is the State Wakf Board. After issuing the prescribed notice, the plaintiff has filed the
suit for eviction. The first defendant claimed that he was entitled to the benefit of the Madras City Tenants Protection Act, 1922, as amended in
1955. He also filed an application u/s 9 for purchase of the land.
The only point that arises for consideration in this second appeal is as to whether, in respect of a land which belongs to a wakf, a tenant could
invoke the provisions of Section 9. The learned Counsel for the appellant contended that unlike a trustee of Hindu Religious and Charitable
Endowments, a Mutavalli of a wakf has no power to sell under any circumstances, except with the sanction of the Wakf Board u/s 36-A of the
Wakf Act, 1954. It is true, that in a case not governed by the Madras Hindu Religious and Charitable Endowments Act, a trustee of Hindu
Religious and Charitable Endowments has power to sell, when the sale is for necessity or for the benefit of the estate. Prior to the passing of the
Wakf Act, a Mutavalli had power to sell only with the previous sanction of a civil court. It is, therefore, contended by the learned Counsel that
Section 9 could not be invoked by a tenant of Wakf property.
The preamble to the Madras City Tenants'' Protection Act states that the Act is enacted ""to give protection to tenants who in municipal towns
and adjoining areas in the State of Madras have constructed buildings on others'' lands in the hope that they would not be evicted so long as they
pay a fair rent for the land"". Unless the language clearly warrants otherwise, therefore, the provisions of the Act will have to be interpreted and
understood so as to give effect to this object sought to be secured. Section 1 (3) excludes the application of the Act to certain tenancies of land.
tenancies of lands owned by wakfs or Trusts or endowments are not excluded from the operation of the Act. It would not also be correct to
assume that the draftsman and the Legislature were not aware of tenancies of lands belonging to wakfs and other trusts. That the definition of
landlord"" u/s 2 (3) includes a trustee or Mutavalli, could not be disputed, as in such a case the trustee or Mutalvalli is acting on behalf of the legal
owner, namely, the deity or Almighty. If any authority is required for this purpose. we may refer to Doraivelu Madiliar v. Natesa Gramani I.L.R
(1924) Mad. 761 : 47 M.L.J. 211 : AIR 1925 Mad. 7. That the first defendant is a tenant in respect of the suit land and there is a valid tenancy in
his favour, are not disputed. Therefore, prima facie the Act applies to the instant case. But the learned Counsel for the appellant placed reliance on
the Explanation to Section 9 and contended that the Act is applicable only to cases where the Mutavalli would be entitled to sell the land without
the concurrence of a third party authority.... The Explanation to Section 9, as it originally stood before its amendment; ran as follows:
''Land'' means the interest of the land-lord in the land and all other interests which he can convey under any power.
Even as the Explanation stood before the amendment this Court held in Doraivelu Mudaliar v. Natesa Gramani 47 M.L.J 211 : ILR (1924) Mad.
761 : AIR 1925 Mad. 7, that the definition of land given in Section 9 was descriptive of the interest of the landlord and the explanation was
inserted to provide that the whole of the interest of the landlord shall be conveyed to the tenant, not merely his own interest but any other interest
which he could convey under any power. The learned Judges also held:
A trustee landlord can convey the interest of the trust in certain given circumstances. Two of those circumstances have been already referred to,
necessity and benefit for the trust--and I think there if added a further one by this new Act III of 1922, namely, when a tenant has been in
possession of the land and has put up a superstructure on the land and to eject whom, would be in certain circumstances plainly inequitable with-
out compensation and in other circumstances such as the one contemplated by the section would be inequitable without giving him an opportunity
of acquiring the land for himself on payment.
The Explanation to Section 9, after its amendment, reads as follows:
''Land'' means the interest of the land-lord in the land and all other interests which he can convey under any power and includes also the future
interest which a trustee can convey under the power possessed by him to convey. trust property when necessity exists for the same or the
alienation of the property is for the benefit of the estate or trust.
It will be seen that all the words used in the Explanation as it originally stood, have also been incorporated in the amended Explanation. In my
opinion, the amendment was not intended to restrict the scope of the application of Section 9, but rather it was intended to enlarge the definition or
to remove the doubts, if any, and give effect to the decision of the Full Bench in Doraivelu Mudaliar v. Natesa Gramani ILR (1924) Mad. 761 : 47
M.L.J. 211 : AIR 1925 Mad 7. This was also so held by a Division Bench of this Court in Sree Siddhi Budhi Vinayakagar Sree Sundareswarar
Devastanam Vs. S.V. Marimuthu, . In this connection it is useful to refer to the decision, of a single Judge of this Court in Dhanapalan v. Assistant
Collector, Dindigul (1966) 79 L.W. 133. It was held in the latter case that the Explanation to Section 9 is only descriptive of the character of the
land and therefore, what the latter half of Section 9 meant is that lands, which could be alienated for necessity or benefit, are also included in the
definition of land. As already stated, having regard to the object sought to be secured, it is difficult to see how the libility imposed under that Act on
a trustee, who is also a landlord to sell the land, could be defeated by the latter half of the definition in the Explanation to Section 9. As held by the
Full Bench in Doraivelu Mudaliar v. Natesa Gramani ILR (1924) Mad. 761 : 47 M.L.J. 211 : AIR 1925 Mad 7, it is wrong to seek; to control a
statute which is obviously intended to overrule the ordinary law, by general considerations imported from Mohammadan Law or what is called the
common law of India. Though the decision in Sree Siddhi Budhi Vinayakagar Sree Sundareswarar Devastanam Vs. S.V. Marimuthu, , related to a
land belonging to a Hindu Trust, there are a number of observations which lend support to the effect that lands belonging to wakfs are not excluded
from the operations of the provisions of Section 9. A passage in the judgment in that case reads:
It (land in that case) is one which can be disposed of by a trustee of a Hindu temple in the context of justifying circumstances, or if it were to
belong to a Muslim wakf, by the Mutavalli after obtaining sanction of a Court. In regard to such properties, the first question to be considered will
be whether the original lease of the property is valid. If the lease is not a valid one, so as to bind the institution the person to whom the property has
been let can hardly be said to be a tenant within the meaning of the Act. If, however, it is held that the lease of the trust property was one made, in
the ordinary course of management or for the benefit or necessity of the institution or with the sanction of Court, the tenant will be a lawful tenant.
Clearly therefore, the lands belonging to a wakf, in respect of which there was a valid tenancy, are not excluded from the operation of the
provisions of Section 9.
It is next contended by the learned Counsel for the appellant that Section 36-A of the Wakf Act prohibits the sale of wakf property by a
Mutavalli without the previous sanction of the Board, and that, therefore, Section 9 of the City Tenants Protection Act could not be invoked. In my
opinion, Section 36-A is not a bar for the applicability of Section 9 of the City Tenants Protection Act. Section 36-A prohibits voluntary transfer
without the previous sanction of the Board and not involuntary transfers or transfers by orders of Court. This is also clear from a reading of Section
57 (2) of the Wakf Act which states that, whenever any Wakf property is notified for sale in execution of a decree of a civil Court or for the
recovery of any revenue, cess, rates or taxes due to the Government or any local authority, notice shall be given to the Board by the Court,
Collector or other person under whose order the sale is notified. In this case, the Wakf Board bad been in-pleaded as a party and, therefore, no
question of issue of notice u/s 57 (2) arises. In fact, the written statement filed by the second defendant, Wakf Board is that the amount of
compensation which is to be paid for the land by the tenant, should be deposited in Court to the credit of the Wakf Board and they did not raise
any objection that the sale should not be effected without the previous sanction. Section 36-A does not have any overriding effect on the
provisions in other enactments. It may also be noticed that there is a similar prohibition of sale or mortgage by a trustee of Hindu Religious and
Charitable Endowments u/s 34 of the Madras Hindu Religious and Charitable Endowments Act. In spite of this prohibition, it has been held in a
number of cases, including in Sree Siddhi Budhi Vinayakagar Sree Sundareswarar Devastanam Vs. S.V. Marimuthu, , that Section 9 of the City
Tenants Protection Act is applicable to lands held by Hindu Religious and Charitable Endowments. In my opinion, therefore, Section 36-A of the
wakf Act is not a bar to the applicability of Section 9 of the City Tenants Protection Act to the lands held by Wakfs, where there is a valid
tenancy.
In the result the judgments and decrees of the Courts below are confirmed and the second appeal is dismissed. The appellant and the first
respondent will bear their respective costs. The 2nd respondent the wakf Board, will be entitled to get the costs of Rs. 150 from the wakf estate.
No leave.