ABDUL RAHEEM KHAN Vs. MAMDU ALIAS MOHAMMAD SHAFI

JUDGEMENT

(1.) THIS appeal, filed by the plaintiffs, is directed against a decree of the Illrd Additional District Judge, Bhopal, dated 10th july 1964, reversing the decree of the Illrd Civil Judge, Class II, Bhopal, dated 31st March 1962.

(2.) THE relevant facts are these. THE plaintiffs in this case sued as de facto mutawallis to recover possession of a 3 chasma shop at Abidabad mandi, Bhopal, which is in occupation of the defendant. THE property in question was originally held by one Kalekhan, but it appeard that on 6th January 1955, he executed an instrument purporting to be a Wakfnama under which he settled that property together with certain other properties not in dispute, as wakf in favour of "Masjid Ilahai Bux" at Bhopal, appointing himself as the mutawalli, and directing that on his demise, a congregation of worshippers would appoint 4 mutawallis to take charge of the wakf property. THE Wakif due to infirmity of his age, was apparently unable to administer the wakf property and, accordingly, executed a mukhtiyarnama on 23rd October 1959 in favour of the plaintiffs, vesting in them the right of management. THE plaintiffs sought eviction of the defendant on the ground that he was their tenant in respect of the aforesaid premises, that he had failed to pay arrears of rent within one month of the service upon him of a written notice of demand from them and that he had also renounced his character as a tenant. THE defendant disputed the claim on various grounds, alleging that Kalekhan was not the owner of the property in question and could not make a valid wakf, nor had he made a wakf as alleged ; neither had he appointed himself as a mutawalli nor had he any authority to execute the alleged power of attorney in favour of the plaintiffs; that he had never intended to execute the alleged mukhtyarnama and as soon as it was brought to his knowledge that such a document had been obtained by the plaintiffs, by fraud, he immediately repudiated it by publication of a notice, that the plaintiffs had no locus standi to file this suit, that he was not a tenant of the premises but was in possession as a mortgagee under an unregistered deed dated 21st September 1959, and that the alleged notice dated 11th February 1960 had not been served on him.

(3.) BUT, this is a suit with a difference, because the plaintiffs were under the terms of the power of attorney, constituted to be the de facto mutawallis of the wakf property. As already stated, the Wakif had created a wakf and constituted himself to be the mutawalli of the wakf property by the wakf deed dated 6th January 1955, and, thereafter, he appointed the plaintiffs to be his agents and entrusted to them with the power of management, including the right of bringing suits against tenants, etc. It would, therefore, be a misnomer to call them as agents simpliciter. They were, in reality, de facto mutawallis of the wakf property, with certain powers. The alleged cancellation of their authority by the public notice Ex. D-3, dated 7th January 1961 is of no legal consequence because it appears from the evidence of Mamdu alias Shafi (D.W.I) himself that the alleged proclamation was at his instigation and not an act of the wakif as a free agent. The suit, must, therefore be regarded as having been validly instituted.