SUNDARAMURTHI NAINAR Vs. CHOTTI BIBI ALIAS BACHA BIBI

JUDGEMENT

(1.) This appeal arises out of a suit brought for the recovery of possession of a tope of which a lease was granted to the first defendant's grandfather on the 22nd January, 1891 (Ex. I) for a period of 83 years by two brothers Quadir Khan and Sikhandar Khan as mutavallis of a mosque and a graveyard situate in Sirukadambur (Ginjee taluk). It was described to be a bilmuktha lease and the lessee was to recover the money alleged to have been advanced by him to the mutavallis both before and at the time of the execution of the lease from out of the income of the land received by him during its continuance. Quadir Khan died in 1902, leaving several sons and daughters as his heirs. Sikhandar Khan died on the 8 April, 1925. He left only one daughter Chotti Bibi. She has brought the present suit impleading her own sons (defendants 17 and 18) and Quadir Khan's children (defendants 10 to 16 and 19 to 2 2) as defendants.

(2.) The plaintiff came to Court with the allegation that Ismail Shah Faquir was the hereditary mutavalli of the mosque and the graveyard and the Tauliat having devolved first on his sons and eventually on his grandsons Quadir Khan and Sikandar Khan, the latter exceeded their authority and granted a lease (Ex. I) for 83 years, that this could not be done under the Mohammadan Law without the sanction of the Qazi and was not binding on the plaintiff who is the successor in office of the abovenamed mutavallis. She therefore prayed for a decree for possession in her own favour but it was stated in paragraph 10 of the plaint that if the Court found the defendants 10 to 16 and 19 to 22 to be also entitled to the Tauliat, a decree may be passed in their favour as well. These allegations were met by various pleas but we are concerned in this appeal preferred on behalf of the lessee's grand-son (defendant 1) with two only. Having regard to the facts that the validity of the lease was being impugned almost half a century after its execution when all its attesting witnesses and parties were dead, the first plea was that the lease might be presumed to have a legal origin and to have come into existence with the sanction of the Qazi; but if the Court was unable to raise such a presumption, it might anyhow grant the sanction retrospectively and validate the lease, as if granted by the mutavallis for a valid necessity and for valuable consideration. The second contention was that the suit was not within time and that the defendants had in any case prescribed for the limited rights created under the lease by adverse possession. It was not denied on behalf of the defendant that the office of mutavalli was in this case hereditary although on account of her being a female the plaintiff's right to Tauliat was disputed. The trial Court repelled these objections and passed a decree in favour of the plaintiff on behalf of herself and defendants 10 to 16 and 19 to 22 . The first defendant has preferred this appeal.

(3.) As to the first question it was not disputed by learned Counsel for the appellant-as indeed it could not have been-that a grant of lease in respect of land would not have been lawful for more than three years without the sanction of the Qazi or the Judge. The powers of a mutavalli to grant leases are restricted under the Muhammadan Law. This accounts for the attempt made by Mr. Panchapagesa Sastri to invoke a presumption of legal origin. Reliance was placed in this connection on the decision of their Lordships in Mohammad Mazaffar-Al- Musavi V/s. Jabeda Khatun (1930) 58 M.L.J. 641 : L.R. 57 I.A. 125 : I.L.R. 57 Cal. 1293 (P.C.). It must however be remembered that the office of a Qazi, who was under the Muhammadan Law entitled to sanction a lease for more than three years had long become obsolete in 1891, when the lease came into existence and even if a Judge of a High Court, a District Judge or a Subordinate Judge are recognized to have the powers of a Qazi (for which see Shama Churn Roy V/s. Abdul Kabeer (1898) 3 C.W.N. 158, In the matter of Wooza-tunnessa Bibee (1908) I.L.R. 36 Cal. 21. In re Halima Khatun (1910) I.L.R. 37 Cal. 870 Atimannessa Bibi V/s. Abdul Sobhan (1915) I.L.R. 43 Cal. 467, Mahamed Ismail Ariff V/s. Ahmed Moolla Dawood (1916) I.L.R. 43 Cal. 1085, J-amila Khatun V/s. Abdul Jalil Meah (1918) 23 C.W.N. 138,) it does not seem possible to raise that presumption in the present case for the simple reason that the Civil Courts in British India were properly functioning when the lease came into existence and it is impossible to assume that no record of a sanction would have been kept, had the sanction for the grant of a lease been applied for and granted. No suggestion was made during the trial as to the presentation of any such application and no order or sanction by any competent authority is forthcoming. Nor is there any reference to it in the lease Ex. I. It is not easy to believe that if a sanction had been granted to the mutavallis by a District Judge, or any other officer competent to grant it, it would not have been mentioned in this document. The following observation of Viscount Sumner who delivered the judgment of the Board in the very case cited by learned Counsel for the appellant Mohammad Mazaffar-Al-Musavi V/s. Jabeda Khatun (1930) 58 M.L.J. 641 : L.R. 57 I.A. 125 : I.L.R. 57 Cal. 1293 at 1298 and 1299 is pertinent. "At the same time it is not a presumption to be capriciously made, nor is it one which a certain class of possessor is entitled to de jure. In a case such as this, where it is necessary to indicate what particular kind of lawful title is being presumed, the Court must be satisfied that such a title was in its nature practicable and reasonably capable of being presumed, without doing violence to the probabilities of the case. The presumption is not an open sesame , with which to unlock in favour of a particular kind of claimant a closed door, to which neither the law nor the proved facts would in themselves have afforded any key. It is the completion of a right, to which circumstances clearly point, where time has obliterated any record of the original commencement." It is impossible to assume, in the words of their Lordships that "time has obliterated any record of the original commencement" or "the completion of a right to which circumstances clearly point.