Indian Kanoon - Search engine for Indian Law

After the death of his mother he became the Mutawalli of the wakf property and brought the suits under appeal for a declaration that the alienations were not binding on the wakf and for recovery of possession of the disputed house sites on behalf of the Pir.

3. The trial Court held that the alienations were made by Hazara Bibi for the purpose of discharging the previous debts binding on the wakf, for repairing the Pirsthan and also for meeting the routine expenses of the Pir. This finding was upheld by the appellate Court and was rightly not challenged before us.

4. It is a well settled principle of Mahom-medan Law that in the absence of any express provision in the wakf - deed a Mutawalli is not entitled to make any alienation of the wakf property, even for legal necessity without the permission of the Court (see Mulla's Mahommedan Law, 13th Edn., Article 207 at p. 194). On behalf of the appellants, therefore, Mr. Rao filed a petition requesting this Court to grant permission with retrospective effect. He urged that as the alienations were made for the legal necessity of the Pir and as the total area of the property alienated was insignificant compared to the total extent of the wakf property the Court would be justified in exercising its discretion retrospectively in favour of the alienees.

5. The next question for consideration is whether on the facts found by the two lower Courts we would be justified in granting permission at this stage. I have already shown that the findings are to the effect that the alienations were made for the purposes of the wakf. The total extent of the property as given in the wakf deed is 14.8 acres and the extent of the two alienations is .14 acres. Considering the small area of the property that was sold for the purposes of paying off the previous debts and for other necessary expenses it cannot be seriously urged that the corpus of the wakf property would be materially impaired if these two alienations are permitted.

Mr. Das thereupon urged that the application for permission ought to have been filed before the trial Court and that this Court sitting in second appeal should not grant permission. He has, however, not been able to cite any authority in support of his contention that an application for permission should, in the first instance, be filed before the trial Court. Doubtless, if the giving of permission requires further investigation of facts this Court would remand the case to the trial Court for a finding regarding those facts. But in view of the concurrent findings of fact about the legal necessity and the admitted position regarding the extent of the property that has been alienated and the total extent of the wakf property, we consider that all necessary facts for the purpose of giving permission are available before us and we may therefore exercise discretion conferred by law and permit the two alienations. We may mention that in the Madras case cited above, permission was given at the first appellate stage.