Decided on September 25,1967

DHARAM DAS Appellant
HUSSAIN KHAN Respondents


- (1.)HAVING failed in both the courts below, the defendants who are tenants in the suit premises in Ajmer city, have filed this second appeal because they feel aggrieved against the decree directing their eviction from the said premises.
(2.)THE plaintiff raised his suit on the grounds that the defendants, who were his tenants, had committed more than three defaults in the payment of the rent and he required the premises for his reasonable and bonafide use and occupation. He therefore prayed for a decree for arrears of rent as well as eviction of the defendants. THE defendants resisted the claim. THEy pleaded that it had been agreed between the parties that they could carry out repairs in the suit premises and that they were therefore entitled to an adjustment of Rs. 199/3/6 on that account. THE plaintiff's requirement for the premises was also challenged and it was pleaded that the notice of ejectment was invalid. THE trial court decreed the suit on the ground that the plaintiff had succeeded in proving his reasonable and bonafide requirement for the suit premises but it did not accept the contention that the defendants had committed such defaults in the payment of the rent as would justify their eviction on that ground. THE defence that a sum of Rs. 199/3/6 should be adjusted on account of repairs of the premises was, however, rejected. As the plea regarding the invalidity of the notice was not raised at the bar, the trial court decreed the suit on May 4,1965. THE defendants preferred an appeal and the Additional Civil Judge made an order on August 31, 1965. Framing an additional issue on the question whether the plaintiff was debarred from evicting the defendants on the ground of his personal requirement for the suit premises because he was a "mutwalli" and a beneficiary under the waqf deed dated August 12, 1945. THE trial court was directed to take evidence on the additional issue and the case was thereafter heard and decided under the impugned judgment of the Additional Civil Judge of Ajmer, dated May 20, 1966 against which the present appeal has been preferred. It may be mentioned that the learned Judge of the lower appellate court rejected the contention that the plaintiff was not entitled to evict the defendants simply because he was the "mut-walli" and the beneficiary of the the suit premises instead of being the owner thereof.
It has been argued by Mr. Parekh, learned counsel for the defendants appellants, that the finding of fact of the lower appellate court that the plaintiff had succeeded in proving his bonafide and reasonable requirement for the suit premises, has been vitiated because of some illegalities committed by the learned judge in disregarding evidence on the record I shall consider these points one by one.

Firstly it has been argued that the learned judge of the lower appellate court misread the evidence of defendant Pokhardas when he made the observation that although the defendant entered the witness box "he did not deny the truth" of the allegation of the plaintiff that he was living in rented premises. I have read the statements of Pokhardas and I find that the submission of Mr. Parekh is not tenable. What Pokhardas stated in the trial court was that the plaintiff was not a tenant in Ghulam Muinuddin's House No. 5/77. This statement was insufficient for the purpose of rebutting the evidence of the plaintiff to the contrary because, even though the plaintiff at one stage stated that he was living in house No. 5/77 of Ghulam Muinuddin he corrected this soon after and made it quite clear that the correct No. of the house of Ghulam Muinuddin in which he was living as tenant was No. 5/79 and 5/77. Even though this corrections was made on July 2, 1964 defendant Pokhardas did not say, in his statement of the same date, that this was not so, and he contented himself by saying that the plaintiff was not a tenant in house No. 5/77 of Ghulam Muinuddin. It may also be mentioned that the defendant recorded another statement on August 11, 1964 and even then he did not make the statement that the plaintiff was not living in any rented premises. It was in these circumstances that the learned Judge of the lower appellate court made the observation that defendant Pokhardas had not denied the truth of the plaintiff's assertion that he was living in rented premises, and it is futile to urge that the statement of Pokhardas was misread on the point.

Secondly, it has been argued that the learned Judge of the lower appellate court committed an error of law in taking into consideration the opinion of Maulvi Shafiullah P. W. 3 who had expressed the opinion that if there is a direction in a deed of waqf that a waqf property may be let out on rent, and if there is no direction in the deed to the contrary, then the beneficiary can reside in the waqf property. Mr Parekh has submitted that the opinion of the maulvi could not be taken into consideration because a court cannot ascertain the law by taking the evidence of an expert witness, and for this submission the learned counsel has placed reliance on Masjid Shahid Ganj vs. Shiromani Gurdwara Parbandhak Committee, Amritsar (1 ). A reading of the impugned judgment shows, however, that there is no substance in this argument also. The learned judge of the lower appellate court was aware of the decision in Masjid Shahid Ganj case for he noticed it in his judgment, and it appears that what he really took into consideration were the texts contained in "raddul Mohtar" and Fatwai-Almgiri" which are two well known books on Mohomedan law. It is not therefore correct to say that the learned judge based his finding on the so called expert opinion of Maulvi Shafiullah. It may also be mentioned that the learned judge considered the matter quite apart from the statement of Maulvi Shaffiullah and he decided, after a consideration of the deed of waqf, that as the plaintiff was entitled to a share in the income of the property and had a right to lease it out, he was entitled to reside in it. The submission of Mr. Parekh that the finding has been vitiated because of the alleged illegality is therefore quite unjustified.

Thirdly, it has been urged by Mr. Parekh that the learned Judge of the lower appellate court did not appreciate the conditions and the directions given in the deed of wakf, and that this is an illegality for which I should re-assess the evidence on the record. This argument is also untenable because, as I have just stated, the learned judge has considered the wordings of the waqf deed in drawing the conclusion that when the plaintiff was entitled to a share in the income of the property and had the right to lease it out, he had also, by implication, a right of residence in the property.

The only other point which has been urged in support of the submission that the finding of the lower appellate court has been vitiated by an error of law, is that the learned judge did not consider document Ex. A. 28. This submission is also not correct because there is a specific mention of documents Exs. 11 and A. 28 towards the end of the Judgment of the lower appellate court. It appears that while Ex. A. 28 is a certified copy of the assessment list of taxes on the annual value of building and lands of Ajmer municipality for the year 1960-61 and was issued to the defendants on July 15, 1964, document Ex 11 is a copy which was issued to the plaintiff on August 17, 1964. In Ex. A. 28 the names of the owners have been mentioned in the proper column, but the name of the tenant has not been mentioned. In the subsequent copy Ex. 11 however, there is a change inasmuch as the name of the plaintiff has been shown as a tenant in the premises. Mr. Parekh has therefore argued that the document Ex. 11 was a forgery and that on the basis of document Ex. A. 28 the two courts below should have reached the conclusion that the plaintiff had not succeeded in proving his contention that he was a tenant of Ghulam Muinuddin in property No. 5/79. I am not persuaded that I should accept this contention of Mr. Parekh. The assessment list of municipality is subject to revision, and it may be that when the defendants secured copy of Ex. A. 28 on July 15, 1964, and the plaintiff found that it was not correct inasmuch as his name was not shown as a tenant in house No. 5/79, he applied for a correction of the entry, or it may also be that Ghulam Muinuddin, or even the concerned officer of the municipality, might have applied for the correction in the list. Document Ex. A. 28 is therefore not conclusive by itself and I am not satisfied that I should take the view that the finding of the two courts below, which happens to be concurrent, should be disturbed merely because there is the above mentioned difference in Exs. A. 28 and 11.

There is thus no force in the submission that the concurrent finding of fact of the two courts below that the plaintiff had succeeded in proving his reasonable and bonafide requirement for the suit premises, should be reconsidered in this second appeal.

Mr. Parekh has however urged with much insistence that the plaintiff, being a "mutwalli" of the suit premises, was not entitled to succeed in his claim for residence. The learned counsel has placed reliance on Vidya Varuthi Thirtha Swamigal vs. Baluswami Ayyar (2) and Saddat Kamel Hanum vs. Attorney General Palestine (3) for the submission that the ownership of the waqf property vested in God, and not in the "mutwalli", and so the plaintiff could not contend, with any justification, that he was reasonable in his claim of residence in the premises. It has further been pointed out that in waqf deed Ex. A. 29 the plaintiff's father Azim Khan, when he executed the waqf deed, divested himself of the waqf property and stated at numerous places in that document how its income was to be utilised for religious and other purposes. As I shall presently show, this argument is also quite futile.

It cannot be doubted that even in the case of waqf-ul-aulad, or waqf for the benefit of one's descendants, the waqf property ceases to belong to any human owner and vests in God and not in the "mutwalli". Reference in this connection may be made to Masjid Shahid Ganj vs. Shiromani Gurdwara Parbandhak Committee, Amritsar (l) and Saadat Kamel Hanum vs. Attorney-General, Palestine (3) cited by Mr. Parekh. It cannot therefore be doubted that the waqf property does not vest in the "mutwalli" and Mr. Inani, learned counsel for the plaintiff respondent, has not made a submission to the contrary. He has merely urged that as the "mutwalli" of the suit property and as one of the important beneficiaries under the waqf deed, it could not be said that the plaintiff's claim for residence in the property was unreasonable or illegal. In order to appreciate this point of controversy, it may here be mentioned that the suit property belonged to the plaintiff's father Azim Khan. He was 70 years old while his son, the present plaintiff Hussain Khan, was aged 9 years. He therefore thought it proper to execute waqf deed Ex. A. 29. In that document he made it clear that it was because of his extreme old age and the tender age of his son that, out of foresight, he had decided to execute the waqf deed. He made it quite clear that the suit property was given by him as "waqful aulad" and "ali ilya". In pursuance of it Azim Khan divested himself of his ownership over the property and took it in his possession as a "mutwalli". He then directed that a sum of Rs. 160 per annum would first be utilised for repairs and the lighting of the mosque mentioned in the waqf deed, and that the remaining income would be utilised for the education, up bring, "parvarish" (maintenance) and marriage of his minor son Hussain Khan, the present plaintiff. Certain other directions were made in the waqf deed regarding the devolution of the property in certain other circumstances, but I am not concerned with that aspect of the matter in the present case. The relevant provisions of the waqf deed mentioned above are quite sufficient to prove that the residuary income of the waqf property was required to be utilised for the benefit of the waqfs son Hussain Khan who was in fact the sole beneficiary after providing a sum of Rs. 160 per annum for the religious purposes referred to above. Hussain Khan has attained majority and it is not disputed that he is the present "mutwalli". This is therefore a case in which a person who is the "mutwalli", and to whom a major part of the benefit under the waqf deed has been given, wants to reside in a portion of the waqf property instead of letting it out also on rent. It is admitted that there are several other tenants in the property, and it is not the case of the defendants that a sum of Rs. 160/- per annum will not accrue from the property for being spent on the religious purposes mentioned in the waqf deed if the plaintiff is allowed to reside in that part, of it which has been let out to the defendants. When that is so, and the plaintiff has the option of residing in a portion of the waqf property, or of letting it out and utilising its income for his own use and taking some other premises on rent, it cannot be said that there will be any breach of the Mohamedan law relating to waqfs or of the directions contained in the waqf deed, if this is allowed. Mr. Parekh's assertion to the contrary is therefore quite untenable.

No other point has been argued and the appeal is dismissed-with costs. .

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