SYED AHMAD JAWWAD Vs. QUDESIYA SAIDULLAH

JUDGEMENT

(1.) PRAKASH Krishna, J. This is defendant's appeal. It arises out of the suit No. 55 of 1971 filed by one Maqsood Jahan Begum through her daughter as power of attorney holder for possession of premises No. 29 old, 39 new, Kanpur Road (now known as Purshottam Das Tandon Road), Civil Lines, Allahabad as detailed in the plaint and for a decree of past mesne profits from the period beginning from the time defendants No. 1 and 2 have made collection of rent from the tenants to the date of institution of the suit with interest etc. The suit has been decreed by the trial Court.

(2.) THE plaintiff Smt. Maqsood Jahan Begum and Smt. Mahmood Jahan Begum were the real sisters. Indisputably the property in question originally belonged to Smt. Mahmood Jahan Begum. THE house in question has been constructed on a Nazool land belonging to the State Government. A registered lease deed was executed on 19-12-1912 between the Secretary of State for India In Council and Edward Walterchanda for the period of 30 years with effect from 18th day of July 1911 with a renewal clause that the said lease can be renewed twice for 30 years each. Thus lease was for a total period of 90 years. THE lease hold rights changed hands from time to time and ultimately Smt. Mahmood Jahan Begum, the sister of the original plaintiff became the holder of leasehold rights by means of a sale deed in her favour. Smt. Mahmood Jahan Begum was wife of Mahmood Husain who was a barrister at Allahabad, and expired during the life time of Smt. Mahmood Jahan Begum. This couple had no issue. Smt. Mahmood Jahan Begum created a waqf alal aulad by means of registered waqf deed dated 9-11-1966 of this property. THE property in dispute was mutated in the Government records in favour of waqf. Smt. Mahmood Jahan Begum appointed herself as first Mutwalli of waqf. She expired on 29th March 1968. After her death Said Ahmed Jawwad, the appellant No. 1 became the Mutwalli of the waqf. Said Ahmed Jawwad is the step-brother of Mahmood Jahan Begum. Smt. Maqsood Jahan Begum, the plaintiff was residing all the time at Canada and was wife of late Dr. M. A. Rauf, Ex Ambassador of India.

(3.) THE appellant No. 1 in the written statement stated that Smt. Mahmood Jahan Begum was the absolute owner of the premises No. 29/39, Kanpur Road, Allahabad till she executed the waqf deed dated 9-11-1966. She became the Mutwalli after the execution of the waqf deed and after her death, the appellant has become Mutwalli. THE waqf deed has been acted upon. It was further pleaded that Smt. Qudesiya Begum who is occupying only part of the premises as tenant in view of the allotment order dated 2-9-1969 is estopped to challenge the title of the appellant. She tiled the application for allotment of the portion of the said premises treating the premises as waqf property and obtained the allotment order behind the back of the appellant No. 1, Mutwalli of the said waqf. THE plaintiff is estopped to challenge the title of her landlord namely the appellant No. 1 in view of the Section 116 of the Indian Evidence Act. THE suit for ejectment is pending decision. Smt. Mahmood Jahan Begum was the permanent and perpetual lessee of the land upon which the premises stands. She was the absolute owner of the leasehold rights of the premises in question before the date of creation of the waqf. THE said lease is renewable. THE Government had already decided to renew the lease for 90 years hence there is no question of taking away the leasehold rights in respect of the property in question by the Government.