Sundaramurthi Nainar vs Chotti Bibi alias Bacha Bibi and Others

Abdur Rahman, J.—This appeal arises out of a suit brought for the recovery of possession of a tope of which a lease was granted to the first

defendant''s grandfather on the 22nd January, 1891 (Ex. I) for a period of 83 years by two brothers Quadir Khan and Sikhandar Khan as

mutavallis of a mosque and a graveyard situate in Sirukadambur (Ginjee taluk). It was described to be a bilmuktha lease and the lessee was to

recover the money alleged to have been advanced by him to the mutavallis both before and at the time of the execution of the lease from out of the

income of the land received by him during its continuance. Quadir Khan died in 1902, leaving several sons and daughters as his heirs. Sikhandar

Khan died on the 8th April, 1925. He left only one daughter Chotti Bibi. She has brought the present suit impleading her own sons (defendants 17

and 18) and Quadir Khan''s children (defendants 10 to 16 and 19 to 2''2) as defendants.

The plaintiff came to Court with the allegation that Ismail Shah Faquir was the hereditary mutavalli of the mosque and the graveyard and the

Tauliat having devolved first on his sons and eventually on his grandsons Quadir Khan and Sikandar Khan, the latter exceeded their authority and

granted a lease (Ex. I) for 83 years, that this could not be done under the Mohammadan Law without the sanction of the Qazi and was not binding

on the plaintiff who is the successor in office of the abovenamed mutavallis. She therefore prayed for a decree for possession in her own favour but

it was stated in paragraph 10 of the plaint that if the Court found the defendants 10 to 16 and 19 to 22 to be also entitled to the Tauliat, a decree

may be passed in their favour as well. These allegations were met by various pleas but we are concerned in this appeal preferred on behalf of the

lessee''s grand-son (defendant 1) with two only. Having regard to the facts that the validity of the lease was being impugned almost half a century

after its execution when all its attesting witnesses and parties were dead, the first plea was that the lease might be presumed to have a legal origin

and to have come into existence with the sanction of the Qazi; but if the Court was unable to raise such a presumption, it might anyhow grant the

sanction retrospectively and validate the lease, as if granted by the mutavallis for a valid necessity and for valuable consideration. The second

contention was that the suit was not within time and that the defendants had in any case prescribed for the limited rights created under the lease by

adverse possession. It was not denied on behalf of the defendant that the office of mutavalli was in this case hereditary although on account of her

being a female the plaintiff''s right to Tauliat was disputed. The trial Court repelled these objections and passed a decree in favour of the plaintiff

''on behalf of herself and defendants 10 to 16 and 19 to 22''. The first defendant has preferred this appeal.

As to the first question it was not disputed by learned Counsel for the appellant-as indeed it could not have been-that a grant of lease in respect

of land would not have been lawful for more than three years without the sanction of the Qazi or the Judge. The powers of a mutavalli to grant

leases are restricted under the Muhammadan Law. This accounts for the attempt made by Mr. Panchapagesa Sastri to invoke a presumption of

legal origin. Reliance was placed in this connection on the decision of their Lordships in Mohammad Mazaffar-Al-Musavi v. Jabeda Khatun

(1930) 58 M.L.J. 641 : L.R. 57 IndAp 125 : ILR 57 Cal. 1293 (P.C.). It must however be remembered that the office of a Qazi, who was under

the Muhammadan Law entitled to sanction a lease for more than three years had long become obsolete in 1891, when the lease came into

existence and even if a Judge of a High Court, a District Judge or a Subordinate Judge are recognized to have the powers of a Qazi (for which see

Shama Churn Roy v. Abdul Kabeer (1898) 3 C.W.N. 158, In the matter of Wooza-tunnessa Bibee ILR (1908) Cal. 21. In re Halima Khatun

ILR (1910) Cal. 870 Atimannessa Bibi v. Abdul Sobhan ILR (1915) Cal. 467, Mahamed Ismail Ariff v. Ahmed Moolla Dawood ILR (1916)

Cal. 1085, J-amila Khatun v. Abdul Jalil Meah (1918) 23 C.W.N. 138 it does not seem possible to raise that presumption in the present case for

the simple reason that the Civil Courts in British India were properly functioning when the lease came into existence and it is impossible to assume

that no record of a sanction would have been kept, had the sanction for the grant of a lease been applied for and granted. No suggestion was

made during the trial as to the presentation of any such application and no order or sanction by any competent authority is forthcoming. Nor is

there any reference to it in the lease Ex. I. It is not easy to believe that if a sanction had been granted to the mutavallis by a District Judge, or any

other officer competent to grant it, it would not have been mentioned in this document. The following observation of Viscount Sumner who

delivered the judgment of the Board in the very case cited by learned Counsel for the appellant Mohammad Mazaffar-Al-Musavi v. Jabeda

Khatun (1930) 58 M.L.J. 641 : L.R. 57 IndAp 125 : ILR 57 Cal. 1293 is pertinent. ""At the same time it is not a presumption to be capriciously

made, nor is it one which a certain class of possessor is entitled to de jure. In a case such as this, where it is necessary to indicate what particular

kind of lawful title is being presumed, the Court must be satisfied that such a title was in its nature practicable and reasonably capable of being

presumed, without doing violence to the probabilities of the case. The presumption is not an ''open sesame'', with which to unlock in favour of a

particular kind of claimant a closed door, to which neither the law nor the proved facts would in themselves have afforded any key. It is the

completion of a right, to which circumstances clearly point, where time has obliterated any record of the original commencement.

It is impossible to assume, in the words of their Lordships that ""time has obliterated any record of the original commencement"" or ""the completion

of a right to which circumstances clearly point.''''

The next contention advanced under this head was that even if we were unable to raise a presumption in favour of the validity of the lease, we

might grant the sanction now as to validate the lease retrospectively. Reliance was placed in that connection on the decision in Nimai Chand Addya

v. Golam, Hossein ILR (1909) Cal. 179. But before we can be called upon to exercise an extraordinary jurisdiction of that nature and to confirm a

transaction retrospectively, we must be satisfied as to the ''absolute necessity'' of the lease and of the ''undoubted benefit which has been conferred

on the endowment by the transaction''. We are not satisfied that there was any necessity or benefit for which the lease Ex. I may have been

essential. There is no evidence on the record why a sum of Rs. 2,138-4-0 was required during the ten years (1880 to 1890) as referred to in the

lease when the annual income from the wakf property was in the vicinity of Rs. 500. Nor are we satisfied that the cash stated to have been paid at

the time of execution was needed or spent on the wakf or that there was any necessity to execute a lease for more than three years. The trial Court

has exhaustively dealt with this portion of the case in paragraphs 28 to 37 of its judgment and it seems to be unnecessary for us to tread the same

ground once again except to say that we find ourselves in complete agreement with its conclusion that ""the necessity recited in.. Ex. A and the

necessity set up in the pleading do not bear scrutiny"" and that this is not a fit case for inviting the sanction of the Court ex post facto (as

representing the jurisdiction of the old Qazi) to validate the transaction"".

This brings us to the next question which is one of limitation but really that of adverse possession, as the lease granted by the mutavallis for 83

years in favour of the first defendant''s grandfather was, in the absence of a sanction by the Qazi before its grant or retrospectively by the Courts in

the present suit, characterised by learned Counsel for the appellant to be void after the lapse of three years and the possession of the lessee and his

grandson (the first defendant) alleged to have been adverse under Article 144. He contended that Articles 134-A and 134-B which were added to

the Statute book by the amendment to the Indian Limitation Act, would have no application as his title had become complete long before the

Amending Act, I of 1929, came into force. The limitation, according to Mr. Panchapagesa Sastri, started on the 21st January, 1894, and his

limited title to the lease became complete in 12 years thereafter. The underlying assumption in the whole of this argument is that the lease by the

mutavallis in excess of three years was void to that extent. This is however incorrect. Leases granted by the mutavallis in respect of land for more

than three years are not void ab initio under the Mahomedan Law but only voidable. Mr. Ameer Ali has, in his Mahomedan Law (Vol. I, pages

478 and 479), cited the following passages from Durr-ul-Mukhtar, Radd-ul-Mukhtar and Hedaya:

Durr-ul-Mukhtar:

So where the wakif has left indeterminate the period for which a wakf property may be leased, some (jurists) have said the Kyyum (mutavalli) 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, and expediency varies according to time and

locality.

Radd-ul-Mukhtar:

When the repairs of the wakf premises cannot be effected without letting (some portion of) it, the matter must be placed before the Judge who can

direct the grant of a lease long enough for that purpose.

Hedaya:

Similarly, where the wakif has made a condition that the mutawalli shall not grant a long lease of the wakf, and people are not willing to take a short

lease thereof, and it is to the advantage of the wakf that a long lease should be given, the mutawalli should prefer the matter before the kazi, who, if

he deems necessary, can make an order to that effect, ''for the kazi is the guardian of the poor''. If the wakif has made a condition that the

mutawalli shall not grant a long lease unless he deems that it would be productive of great benefit to the cestui qui trust, the mutawalli can give the

lease in case of necessity, without reference to the kazi.

Baillie in his Digest of Muhammadan Law thus stated the rule at page 606 (2nd edition):

In the absence 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 places and times. This is approved for the

futwa.

The same view was taken by the Allahabad High Court in Baijnath v. Muhammad Ismail ILR (1922) All. 677,

We may mention, moreover, that the provisions of the Muhammadan. Law are not quite so rigid as the learned Judge seems to have understood. It

is quite true that there was a rule laid down with regard to house property that a mutawalli should not in general be authorized to make a lease of

such property for a period longer than one year, but there was this qualification attached to it, namely, that in all cases the Qazi might empower the

mutawalli to grant leases for longer periods if he thought that such a grant was for the benefit of the trust estate.

If the lease had to be annulled by a Court and had to be regarded in force until then, the whole of the appellant''s contention would fall to the

ground. Leases which are usually the result of an act, of management (or it may be that of mismanagement) have to be distinguished from sales.

They have to be regarded as operative and binding on the trustee granting them unless they are declared to be otherwise. That is why a Division

Bench of the Calcutta High Court composed of Greaves and Mukerji, JJ., observed in Bibi Jabeda, Khatun v. Syed Mahomed Mozafar Ali

Hussain (1925) 30 C.W.N. 807, as follows:

These contentions are I think clearly untenable in view of the decision of the Judicial Committee in Sri Vidya Varuthi Thirtha Swamigal v. Balusami

Aiyar (1921) 41 M.L.J. 346 : L.R. 48 IndAp 302 : ILR 44 Mad. 831 (P.C.). That ease deals with a Hindu math but the Board states that the

principles there laid down apply equally to Mahomedan endowments and it is clear from that case that unless authorised by the kazi no matwali

could create a leasehold interest to endure beyond his life, that the lessees acquired no title by adverse possession against the succeeding matwali

and that if the succeeding matwali recognised the interest, the consent is only referable to a new tenancy created by him and that there is no

adverse possession until his death or until a new matwali takes his place.

The same view was taken by a Division Bench of the Bombay High Court in Hamidmiya Sarfuddin V. Nagindas Jivanji ILR (1932) Bom. 709.

There is no doubt that although an assignment or disposition of a math by a mahanth was held to be void from its very inception, a permanent lease

by him of an item of property appertaining to the math, even if not for necessity was held to be valid during the tenure of his office. This is so held

by their Lordships of the Privy Council in Ram Charan Das v. Nawangi Lal (1933) 64 M.L.J. 505 : L.R. 60 IndAp 124 : ILR 12 Pat. 251 (P.C.).

The rules relating to maths were not only stated to be applicable to Muslim endowments by Mr. Ameer Ali alone in Sri Vidya Varuthi Thirtha

Swamigal v. Balusami Aiyar (1921) 41 M.L.J. 346 : L.R. 48 IndAp 302 : ILR 44 Mad. 831 (P.C.), but also by Viscount Sumner in Mohammad

Mazaffar-al-Musavi v. Jabeda Khatun ILR (1930) Cal. 1293, in the following words:

There remains the question whether the decision of the Board in; Magniram Sitaram v. Kastwrbhai Manibhai (1921) 42 M.L.J. 501 : L.R. 49

IndAp 54 : ILR 46 Bom. 481 (P.C.), can and ought to be distinguished on any ground. The only possible distinction is that it was a Hindu math

with, which the case was concerned. In principle, the cases are in themselves analogous. In the; language of the judgment there is nothing to

suggest that the subject then under discussion was regarded as being in any sense peculiar or special. AS a matter of public right, their Lordships

think it would be very undesirable to introduce purposeless distinctions between the law applicable in the ease of one community and that

applicable to another. They are therefore of opinion that the presumption rightly made by the High Court completed the defendants'' answer to the

plaintiff''s claim to possession and they will humbly advise His Majesty that this appeal should be dismissed with costs.

If the transaction embodied in Ex. I was not void during the lifetime of the mutavallis who granted the lease and the latter of the two did not die, as

stated before, until the 8th April, 1925, there would be no question of limitation or of the first defendant completing his title by adverse possession

as the suit was instituted within 12 years of that date. On the death of the last mutavalli, the plaintiff who has been found to be a hereditary trustee

could have either recognised the lease or refused to do so. There is no allegation that she agreed to recognise it. Had she done so, a new tenancy

would have been held to come into existence with her consent. But since she did not do so the period of limitation must only be taken to have

Started from the date of the last mutavalli''s death.

For the above reasons, the appeal fails and is dismissed with costs.