Decided on August 01,1952



Rajamannar, C.J. - (1.) The defendant in O. S. No. 58 of 1945 in the court of the Subordinate Judge of Tuticorin is the appellant before us. The suit was for the recovery of property consisting of a house and site in. Kayalpatnam in Tiruneveli district. The suit property originally belonged to one Abdul Khadar who made a wakf of the same by a deed dated 14-6-1921, Ex. D. 2. The wakf deed was executed in favour of two persons, M.K. K.T. Ahmed Mohideen and Chinna M.K. Ahmed Moideen as managers of the Mahlara at Ambala Maricair Avergal Street belonging to the Kadiria Muslim community of Kayalpatnam south. The Kadiria Tharikh is a small sect of Muslims said to have been founded by s disciple of the Holy Prophet. The sect holds certain peculiar tenets and believes in the efficacy of japan (zikr). This property was sold to the defendant by a deed dated 10-4-1941 for a sum of Rs. 1550 by Chinna K. M. Mahomed Labbai and Chinna A. K. Sheik Abdul Khadar describing themselves as managers of the Mahlara. It is common ground that with the monies raised by this sale the vendors purchased as managers and on behalf of the Mahlara pro-perty consisting of site and buildings in the town of Tuticorin for a sum of Rs. 1430.
(2.) The plaintiff is the Mahlaratual Kadiria Sabha, Kayalpatnam, a society registered under the Societies Registration Act and is represented by its President. The plaintiff alleged that the affairs of the Mahlara for whose benefit the wakf had 'been created in 1921 were being managed by it since 1941 and that it is entitled to represent the Mahlara, that the sale in favour of the defendant was invalid and illegal as it was beyond the competence of the managers to sell the property which had been dedicated under a wakf, and that the sale was for inadequate consideration and was not justified by any necessity. The plaintiff referred to the purchase of the property in Tuticorin but refrained from making any statement regarding it. The defendant denied the plaintiff's claim to represent the Mahlara and its competence to maintain the suit. He asserted that the plaintiff Sabha did not represent the Kadiria community in Kayalpatnam. The main plea, however, was a justification of the sale in his favour. It was alleged by him that the building had deteriorated in value and was not In a sound condition, that a large amount of money would have been required for putting it in good repair but the Mahlara had not sufficient surplus funds to effect the repairs and that under the circumstances the persons who were in management thought it a most prudent act to sell away the property and to purchase with the sale proceeds property which was likely to fetch more income for the Mahlara & that the property purchased at Tuticorin did yield more income than the property in suit. It was also pleaded by him that ever since the Tuticorin property had been purchased the plaintiff had been in possession and enjoyment of it and had been collecting the income therefrom, and, therefore, the plaintiff was precluded from questioning the validity of the sale in favour of the defendant which formed a part of the same transaction along with the Tuticorin sale.
(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.;

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