KALLU KHAN Vs. MOHAMMED MEHDI MUTWALLI

JUDGEMENT

(1.) THIS is a Defendant's second appeal arising out of a suit decreed for the arrears of rent and eviction of a tenant from accommodation in his possession. The decree passed by the learned Munsif was affirmed by the lower appellate court. Three questions have been raised in this Court on behalf, of the tenant. They are firstly, that the Plaintiff -Respondent, Mahmood Medhi, was not entitled to sue as the landlord which is either a waqf or God Almighty; secondly, that, in any case, the Plaintiff Respondent, not being the sole mutwalli of the waqf in question, could neither serve a notice on behalf of the waqf nor sue singly; and thirdly, that the accommodation in dispute was used for industrial purposes so that a six months' notice was required Under Section 106 of the Transfer of Property Act and not merely a months' notice which had been given here.

(2.) THE last mentioned point, which does not seem to be seriously advanced now, may be disposed of first. The accommodation in question was used as a shop for carrying on the business of book -binding. It was shown to have been taken on a rent of Rs. 20/ - per month, the tenancy commencing on the first day of every calendar month. The mere fact that the tenant had installed a machine used in the process of bookbinding could not convert the tenancy into a lease for manufacturing purposes. There is nothing here to indicate that the lease itself was taken for manufacturing purposes and the contract having been proved to be clearly one of month to month tenancy, there is no question of there being a year to year tenancy requiring six months' notice. The provision in Section 3 of UP (Temp.) Control of Rent and Eviction Act (hereinafter referred to as the Act) requires a month's notice of demand in cases where the tenants are in arrears of rent for more than three months. It is well established that the notice Under Section 106 of the Transfer of Property Act can be combined with the notice Under Section 3(a) of the Act See: Musthaq Husain v. Mohd. Saddiq, 1967 AWR 573. There is no force whatsoever in the contention that six months' notice was needed in this case.

(3.) THE waqf mentioned above was a waqf alal -aulad created by Shrimati Sayeeda Bibi who had appointed her husband, Molvi Raziuddin, a well known lawyer of the Allahabad district, as the mutawalli. It was, however, provided in the deed (Ex. 6), that, on the death of Molvi Raziuddin, the three sons of the waqif, namely, Mahmood Mehdi and Ahmad Mehdi and Moham mad Mehdi, would become mutawallis of their respective shares in the properties which could be divided between themselves for purposes of management. It is, therefore, clear that the waqif had given a right to the three mutawallis -cum -beneficiaries of the next generation to divide up the properties as mutawallis -cum -beneficiaries and to manage and enjoy the benefits in that state of separation. Subject to certain limitations, such as the inability of the waqif to deprive the Kazi (whose powers vest in Courts now) of his right to interfere for enforcing the waqf, "the conditions laid down by the waqif are equivalent to the commands of the Lawgiver." (See: Amir Ali's Mahommedan Law, 3rd Ed. Vol. I, p. 335). So the waqif's power to lay down such a condition could not be questioned.