GAJENDRA NATH DEY Vs. MOULVI ASHRAF HOSSAIN

JUDGEMENT

(1.) This appeal is directed against the decision of the President of the Calcutta Improvement; Tribunal in a case for apportionment of compensation in respect of laud acquired for the Calcutta Improvement Trait under a declaration published on the 27 March 19.8. The rival claimants are the lessor and the lessee of the disputed property. The President has decided that the-lessor is entitled to the entire compensation money awarded for the land. The lessee has consequently appealed to this Court.

(2.) The President has found that the land in question was valid wakf and that the lessor was the mutualli. No serious attempt has been made in this Court to controvert this conclusion. The evidence shows that the rents and profits have been for many years appropriated to defray the expenses of a mosque, and the property is deserted throughout as wakf in all the relevant documents. The case must, consequently, be decided on the footing that the land acquired was a valid wakf.

(3.) On the 14 April 1880 Rakhal Chandra De, the father of the present lessee, who had already been a tenant in occupation on a rent of Rs. 22 monthly, took a lease of the land from Abdul Ali, mutwalli, and executed a kabuliyat in his favour. A premium of Rs, 50 was paid, the rent was fixed at Rs. 23 monthly, and the tenancy, it was provided, would fast for a term of ten years from the 12 April 1880 to the 12 April 1890. The kabuliyat eraboiiei a covenant for the renawal of the leasse for a period of ten years after the expiration of the term granted by the lease, and stated expressly that if the land should be asquired by the Government, the lessor alone would get the compensation for the land and the lessee would take the compensation for the brick-built structure. The term of the lease expired and the lessee held over. On the 27 January 1891 Abdul Ali mutwalli, the landlord, again granted a lease to Rakhal Chandra De, on a rental of Rs, 23 a month and for a term of ten year. from the 13th January 1391 to the 13 January 1901. The patta reproduced the provision of the earlier lease for distribution of compensation money in the event of acquisition, and farther contained a covenant that on the expiry of the term a, fresh settlement would be made at a proportionate rent. The term expired and the tenant again held over, On the 9 Marsh 1901, a fresh patta was granted by muttealli Ashraf Hussain (who had meanwhile succeeded to the office) to Rakhal Chandra De on a monthly rent of Rs. 23 and for a term of ten years from the 14 Marsh 1901 to the 14 March 1911. The pitta stated that if it should be necessary for the Government to acquire the land, the lessor would take the compensation for the land in accordance with the ruler, while the lessee alone would get the compenstation paid for the building. There was further a covenant that the lessee would be entitled, on the expiry of the term, to gat fresh pattas for ten years at a time on a rent of Rs. 23 monthly and thus remain in possession with heirs in succession. The term of this lease expired on the 14 March 1911 and, though the tenant continued in osculation, no fresh lease had been granted up to the time of the acquisition. The lessor now claims the entire compensation under the terms of the lease; the lessee, on the other hand, contends that, by virtue of the covenant for perpetual renewal, he must be deemed to hold under a permanent lease at a fixed rent, so that the landlord is not entitled to anything beyond the capitalised value of the rent, In reply, the lessor. urges that if the legal effect of the covenant for renewal be to transform the lease into a perpetual grant at a fixed rent, the lease does not bind the wakf estate because treated by the mutwalli in excess of his authority. The President has held that the lease is not operative as a permanent lease of the wakf estate and that, at the date of the acquisition, the lessee bad no higher status than that of a tenant from month to month. He has further held that the lessee did not by lapse of time acquire the status of a perpetual tenant at a fixed rent to the detriment of the wakf estate.