MAYADHAR SUBUDHI TANA Vs. ORISSA BOARD OF WAKFS

JUDGEMENT

(1.) THE Orissa Board of Wakfs is the plaintiff The suit is for eviction of defendants 1 to 4 from the disputed land and for recovery of possession Admittedly that the disputed properly is the Wakf property of defendant 5 (Pir Saheb) Late Rafique md. leased out the disputed land by a registered permanent lease dated 19-12 1949 in favour of defendant 1. Defendants 2 In 4 are the brothers of defendant 1 plaintiff admits that defendants 1 to 4 are in possession ever since the date of lease. The validity of the lease is, however, challenged on the ground that it was effected on false recitals regarding the necessities of defendant 5 and that permanent lease could not have been effected in law beyond three years in respect of the suit property which is an agricultural land Defendants 1 to 4 contested the suit challenging the averments in the plaint. It is unnecessary to give details of the defence as they are not relevant for the disposal of the Civil revision. After evidence was closed and arguments heard, the suit had been posted to 8-91964 for judgment On 3-9-1964 defendants filed an application alleging that the alienation had been made for the benefit of Pir Saheb and that Rs 1,000 had been paid in cash to Rafique Mohammad. the then sole Mutwali and praving that the court should give retrospective sanction to the alienation This application was opposed on the ground that the lease was not for the benefit of defendant 5 and that the premium mentioned in the document was not utilised for repairing the kitchen and the compound wall of the Pir Saheb; but the money was appropriated towards the personal expenditure of Rafique Mohammad and that the Court had no jurisdiction to give retrospective sanction after the passing of the Wakf Act, 1964 (Act XXIX of 1964), hereinafter referred to as the Act. The learned Court below did not record any finding as to whether the permanent lease was for the benefit of defendant 5 It held that it had no power to accord sanction and that the jurisdiction for the same vested only ui the District Judge It accordingly dismissed Ae application on 23-9 1964 Against this order the civil revision has been filed by defendants 1 to 4. It may be noted that the order under challenge also deals with the question of amendment of the plaint which is not the subject-matter of the Civil Revision.

(2.) THE following points arise for consideration.

(3.) PARA. 208 of the Principles of Mohamadan Law by Mulla (15th Edition) deals with the power of a Mulwali to grant leases. A Mutwali has no power to grant lease of Wakf property, if it be agricultural, for a term exce eding three years, and if non-agricultural, for a term exceeding one year-- (a) unless he is authorised by the deed of Wakf to do so; and (b) or where he has no such authority, unless he had obtained leave of the Court to do so, such a lease may be granted even if the founder has expressly prohibited a lease for a longer term the permanent lease, in this case, is of agricultural land The defence case is not that it has been expressly authorised by the deed of wakf. By this application leave of the Court was asked for. The consensus of authorities is that the Court can grant retrospective sanction if it is supported by legal necessity or for the benefit of the trust. (1910) TLR 37 Cal 179, Nemai Chand v. Golam Hossein, is the leading decision on the point. In AIR 1953 Mad 143 the entire legal position was examined and their Lordships held that if the alienation was for the benefit of the trust, subsequent approval to the transaction would be as effective as prior approval and the Courts have full powers to accord such sanction. This was accepted as laying down good law by a Bench of this Court in 20 Cut LT 487: (AIR 1954 Orissa 239) The position of law is therefore clear that prior to the passing of the Act Courts had full power to accord retrospective sanction, provided other necessary conditions--that the alienation was for legal necessity or for the benefit of the trust--were established