SHEKH ZAFARBHAI GULJARBHAI Vs. CHHAGANLAL ADITRAM GANDHI

JUDGEMENT

(1.) THIS is a second appeal in a suit by the plaintiff-appellant to recover possession of a piece of land and damages for occupation at certain rate. The plaintiff is the present mutawalli of the suit property and his case was that the suit land which was wakf property was given on a lease for fifty-one years by his predecessor, defendant No.2, to defendant No.1 on. November 12, 1925, but that he had no power under the Mahomedan law to grant a lease for a long period. The lease being therefore void, he sued to> recover the property from defendant No.1. Defendant No.1's case was that the lease was validly passed by defendant No.2 acting as mutawalli, that the transaction was for necessity as well as for the benefit to the wakf, that a mosque was erected with the money obtained by defendant No.2 front him, and if permission of the Court was necessary to validate the transaction, such permission should be granted in this suit.

(2.) THE main question, therefore, was whether the lease for a long period granted by the then mutawalli was valid. THE trial Court was of the opinion that it was invalid because under the Mahomedan law he had no power to grant the lease of non-agricultural property for more than one year except with the previous sanction of the Court, and no such sanction had been obtained in the present case. On appeal, the Extra Assistant Judge reversed that decision and held that the mutawalli had the power to grant the lease as it was for the benefit of the wakf property and that such a lease could be validated by retrospective sanction of the District Court, and he thereby gave the sanction for the said lease.

(3.) IT is, however, contended that even if the transaction could be subsequently validated by the Court, it is only the District Judge who could do it and not the Assistant Judge, because the power of a kazi who can, under the Mahomedan law, grant such permission, is being exercised now by the District Judge and not by any Judge subordinate to him in the District Court, and that in the present case the permission is given by the Assistant Judge and not by the District Judge. Reliance is placed for that proposition on the decision in Fakrunnessa Begum v. District Judge of 24-Parganas (1920) I.L.R. 47 Cal. 592. There no doubt it is said that the District Judge has power to grant such sanction. But on the other hand in the leading case of Nimai Chand Addya v. Golam Hossein it isobserved as follows (p. 187): . . . . we can see no reason why an approval by a Subordinate Judge of a transaction by which wakf property is mortgaged, provided he has jurisdiction over the wakf property, should not be quite as effectual as a sanction by a District Judge. IT has also been recently held by a special bench of the Calcutta High Court in Burhan Mirdha v. Khodeja Bibi [1937] 2 Cal. 79, s.B. that the civil Courts have taken the place of kazis under the Mahomedan law. I do not think there is, therefore, any substance in the contention that the District Judge alone enjoys the function of a kazi and that sanction must be granted by him.