MADHI HUSSAIN KHAN ASHURKHANA ENDOWMENTS Vs. MANIVANNA NAICKER

JUDGEMENT

(1.) THE plaintiff, which is a Wakf represented by its mutavallis, is the appellant. The suit was for eviction of the first defendant from the suit property, namely, land and premises bearing door No. 134-A Peters Road, Royapettah, Madras. There is no dispute now that the first defendant is a tenant of the land, and he had put up the superstructure thereon. There is also no dispute as to the validity of the tenancy in favour of the first defendant. The second defendant is the State Wakf board. After issuing the prescribed notice, the plaintiff has filed the suit for eviction. The first defendant claimed that he was entitled to the benefit of the madras City Tenants Protection Act, 1922, as amended in 1955. He also filed an application under Section 9 for purpose of the land.

(2.) THE only point that arises for consideration in this second appeal is as to whether, in respect of a land which belongs to a wakf, a tenant could invoke the provisions of Section 9. The learned counsel for the appellant contended that, unlike a trustee of Hindu Religious and Charitable Endowments, a Mutavalli of a wakf has no power to sell under any circumstances, except with the sanction of the Wakf Board under Section 36-A of the Wakf Act, 1954. It is true, that in a case not governed by the Madras Hindu Religious and Charitable Endowments Act, a trustee of Hindu religious and Charitable endowments has power to sell, when the sale is for necessity or for the benefit of the estate. Prior to the passing of the wakf Act, a mutavalli had power to sell only with the previous sanction of a civil court. It is, therefore, contended by the learned counsel that Section 9 could not be invoked by a tenant of Wakf property.

(3.) THE preamble to the Madras City Tenants Protection Act states that the Act is enacted "to give protection to tenants who in municipal towns and adjourning areas in the State of Madras have constructed buildings on others' lands in the hope that they would not be evicted so long as they pay a fair rent for the land. " unless the language clearly warrants otherwise, therefore, the provisions of the act will have to give effect to this object sought to be secured. Section 1 (3)excludes the application of the Act to certain tenancies of land. Tenancies of lands owned by Wakfs or trusts or Endowments are not excluded from the operation of the Act. It would not also be correct to assume that the draftsman and the legislature were not aware of tenancies of lands belonging wakfs and other trusts. That the definition of 'landlord' under Section 2 (3) includes a trustee or mutavalli, could not be disputed, as in such a case the trustee or mutavalli is acting on behalf of the legal owner, namely, the deity or Almighty. If any authority is required for this purpose, we may refer to Doraivelu Mudaliar v. Natesa Gramani, ILR 47 Mad 761 = (AIR 1925 Mad 7) (FB ). That the first defendant is a tenant in respect of the suit land and there is a valid tenancy in his favour, are not disputed. Therefore, prima facie the Act applies to the instant case. But the learned counsel for the appellant place reliance on the Explanation to Section 9 and contended that the act is applicable only to cases where the Mutavalli would be entitled to sell the land without the concurrence of a third party authority. The Explanation to Section 9, as it originally stood before its amendment, ran as follows:-