Document Fragment View

Matching Fragments

3. The learned Subordinate Judge found that the plaintiff Sabha was not a de jure manager of the Mahlara and its property because the general body meeting at which its members were elected did not represent the entire Kadiria sect of Kayalpatnam, but it was a trustee 'de son tort' and as such entitled to file the suit for recovery of possession of property belonging to the Mahlara. He found that the suit property at about the time of the sale to the defendant was fetching only a rent of Rs. 1 per mensem, that a portion of the western wall of the building had fallen down, that the roof of one of the shops had collapsed and another was about to collapse and that the Mahlara had no reserve or surplus funds from which the building could be repaired, nor was there evidence that the repair could be done within a reasonable amount. The entire sale proceeds had been invested in purchasing pucca house properties at Tuticorin which fetched a rent of Rs. 12 per-mensem. He further found that the consideration for the sale in favour of the defendant was proper and adequate. On the question of law raised in the case the learned Judge was of the opinion that an alienation of wakf property could be validly made only with the prior sanction of the Kazi, or as the court is vested with the powers of the Kazi, with the sanction of the court, and that it was impossible for him to validate the transaction retrospectively merely because it was beneficial to the Mahlara, as he considered that the transaction was not strictly necessary. He, therefore, held that the sale to the defendant was not binding on the Mahlara. He also held against the defendant on his plea of estoppel. In the result he decreed the suit for recovery of possession, but dismissed it as regards the other relief's.

4. Mr. Rajah Aiyar who appeared for the defendant-appellant did not challenge the finding of the learned trial Judge that the plaintiff Sabha was entitled to maintain the suit as de jure trustee of the Mahlara. He urged before us two grounds, (1) that the retrospective approval or sanction can be given by the court to an alienation of wakf property if it was found to be supported by necessity or if it was beneficial to the trust and (2) that the plaintiff had accepted the benefit of the transaction which comprises the purchase in Tuticorin along with the sale to the defendant and was precluded from attacking the sale to the defendant, after retaining the Tuticorin property.

5. The first ground raises an important question of Muhammadan Law on which there is no direct authority of this court. The leading decision on the subject is that of the Calcutta High Court in -- 'Nemai Chand v. Mir Golam Hossein', 37 Cal 179. That was no doubt a case of a mortgage of wakf property, but the decision has been understood to apply generally to any alienation of wakf property. The learned Judges Mookerjee and Vincent JJ. after an examination of several texts, observe ss follows :

10. We wish to observe further that in this case there is no alienation of wakf property in the sense that the proceeds of the alienator have been spent away and, therefore, are irrcoverably lost to the institution. In this case what has happened is a sale of a particular wakf property and a re-investment of the sale proceeds in another property. That this kind of transaction was contemplated and permitted by Muhammadan Law is clear from several authorities. In 'Raddu-ul-muhtar', Vol. 3, page 600, we find that in the absence of any power of sale expressly, reserved in the deed of wakf the Kazi, if he deem it expedient, may authorise the sale of the wakf property and reinvestment of the proceeds in any shape conducive to the proper maintenance of the wakf. The following is from Surrat-ul-Fatawa, pages 420-421: