MUHAMMAD MAZAFFARALMUSARI Vs. BIBI JABEDA KHATUN

JUDGEMENT

(1.) The appellant in this case was plaintiff in the suit. He is the hereditary mutwalli of an ancient wakf of large extent, and he claimed from the defendants possession of extensive lands, as property of the wakf, which he was entitled to resume. The defendants' answer was that the lands were an ancient istimrari tenure, held for a long though indefinite time at a fixed rent and as heritable property, of the appellant's predecessors, who had not only never contested the title, but had frequently acknowledged it by various overt acts. Other defences of limitation and estoppel were raised, but they need not now be considered. In substance, the facts necessary to support this defence were proved, though the actual date and circumstances of the origin of the tenure were not. The tenure had been sold in Court auctions for arrears of rent, and had been described as an istimrari mukarari tenure in 1859 and in 1902; rent receipts were produced for a long series of years, in which the tenure was also thus described; and it was proved that, in 1869, the mutwalli of the day had sued unsuccessfully for enhancement of rent. Circumstances such as these are an ordinary and, prima facie, a sufficient proof of the right asserted by the defendants. Against this, the plaintiff's reply was as follows : "Admittedly the defendants have always owed and have often paid rent at an unchanging rate to the mutwalli of the wakf, to which the lands in question with others appertained, but they can produce no grant or lease in support of their claim to a permanent tenure, and, if they could, a mutwalli cannot alienate the lands of the wakf or grant a permanent tenure at a fixed rent, which has the same effect. "

(2.) To meet this, otherwise irrefragable, argument, the defendants contended that, by way of completing their title to a tenure actually enjoyed over so long a period of years, there ought to be presumed some lawful origin, and the existence of such facts, though unrecorded and forgotten, as would establish a lawful origin. Mohammedan Law affords such an origin in the exception to the rule (whether still acted on its practice in modern times or not), that with the leave of the Kazi such an alienation, otherwise unlawful, is permissible to a mutwalli: Ameer Ali, Mohamedan Law, 4 edn., p. 428. The Subordinate Judge declined to make this presumption, but on appeal, the High Court made it and reversed his decree for possession. Greaves, J., with whom Mukerji, J., concurred, observed: " I think that the Court, under the circumstances of the present case, should make the assumption that the grant was in its origin lawful, having regard to the fact that the lease has existed unchallenged since at any rate 1843, that the rent has remained unchanged, that applications for enhancement have been made and failed, and that no mutwalli has challenged it for a period of over 70 years. "

(3.) It is against this conclusion that the present appeal is brought. This question was dealt with by their Lordships' Board in Bawa Magniram Sitaram V/s. Kasturbhai Manibhai, AIR 1922 PC 163. In that case a lease of 51/2 acres of land, which had been previously settled as part of a mutt, was granted to a tenant, upon terms which, on the true construction of the document, were held to amount to a permanent lease, terminable only on non-payment of the rent reserved. The land had been held for the greater part of a century at the original low rent continuously without any disturbance of the tenants or anything to show that either party to it regarded the right of the tenants as other than permanent, while circumstances were proved, which appeared to establish the contrary. The decision proceeded upon the assumption that the grantor of the lease had been the shebait. If so, the property having been devoted to religious purposes, the power of leasing would not extend beyond a grant for the life of the shebait for the time being.