Mahesh Narain Shukla, J. - (1.) The question of law which has been canvassed before me in this second appeal preferred by the plaintiffs is as to the effect of a lease of a part of the waqf property executed by the Mutwalli of the waqf for a period exceeding one year without obtaining the sanction of the court. The suit was filed by the plaintiffs claiming to be the beneficiaries under the Waqf. The suit was dismissed by both courts below and hence the second appeal. The brief facts of the case are that one Mohammad Ishaq Khan, defendant No. 2, as Mutwalli executed a lease dated 8 -12 -1947 in favour of the defendant No. 1 namely Delhi Iron and Steel Co. Ltd., Ghaziabad, for a period of 50 years. The property in suit forming the subject matter of the lease was a part of the Waqf property. Kumari Shahida Begum, one of the plaintiffs, claimed to be the grand -daughter of Mohammad Ismail Khan, the Waqif (being the daughter of Smt. Sultani Begum) while the other plaintiff Kumari Shakila Begum was the daughter of Mohammad Ishaq Khan. They contended that under the deed of Waqf property they were the beneficiaries and Mohammad Ishaq Khan defendant No. 2 as Mutwalli had executed a deed of lease in favour of defendant No. 1 for a period of over one year in respect of a part of the Waqf property without leave of the court and that the said Mutwalli was not competent to grant a lease under the terms of the said Waqf deed or the Mohammedan law and therefore the lease dated 8 -12 -1947 in favour of defendant No. 1 for a period of 50 years was totally unlawful and the Delhi Iron and Steel Co. Ltd., was simply a trespasser. It was also alleged that the stipulated rent of Rs. 6000/ - per year was very uneconomic. In these circumstances a decree for possession over the property in their own favour or in favour of the Mutwalli defendant No. 2 or in favour of both was asked for.
(2.) The Mutwalli did not contest the suit. The Delhi Iron and Steel Go. Ltd. (defendant No. 1) contested the suit and pleaded, inter alia, that the lease was a valid document and at all events a prudent act on the part of Mohammad Ishaq as it was beneficial to the interest of the waqf and hence not open to challenge.
(3.) The question therefore on which the decision of the suit hinged was as to whether the aforesaid lease dated 8 -12 -47 was valid or not. It was strenuously contended on behalf of the plaintiff appellants that a lease executed by the Mutwalli for a period exceeding one year without leave of the court was plainly illegal. The learned counsel for the appellants referred to a passage at page 208 in Mulla's Principles of Mahomedan Law, Sixteenth Edition, which runs as follows: - - 208. Power of Mutwalli to grant leases - -A mutwalli has no power to grant a lease of wakf property, if it be agricultural, for a term exceeding three years, and if, non -agricultural, for a term exceeding one year - - (a) unless he has been expressly authorized by the deed of wakf to do so; (b) or, where he has no such authority, unless he has obtained the leave of the court to do so; such leave may be granted even if the founder has expressly prohibited a lease for a longer term. He also relied on a passage at p. 439 of Mahomedan Law by Amir Ali Vol. I, third edition, which was as follows: - - Neither the cestui qui trust nor the administrator can grant a lease of the wakf property for a long period. According to Sadi Khalil, two years, according to others three years, is the longest term for which a lease may be given unless it is given to the next beneficiary, when it may be for ten years. The lease may, however, be extended if the property needs repair. It is a principle that property held as wakf property must be kept in good repair, and that future beneficiaries can, in order to preserve their rights, oblige the usufruct or to lease the house that is falling into ruin and to apply the rent wholly to its reconstruction or repairs. He also invited my attention to para. 561 at p. 626 of Tyabji on Muslim Law, fourth edition, which is to the following effect: - - Subject to the provisions of the various waqf Acts which empowers the statutory authorities created under the said Acts, the mutwalli may obtain the sanction of the court for the sale or mortgage of waqf property by an application under the Indian Trusts Act, XXVII of 1866. But otherwise the sanction must be obtained by instituting a suit. Another observation occurring in para. 559 of the same book may be quoted: - - Now statutory authorities created under various waqf statutes have drastically curtailed and regulated the powers with regard to alienation of waqf properties. The learned counsel for the appellants also relied on a number of authorities in support of his proposition. He referred to a division Bench decision of this Court in Askari Husain v/s. Chunni Lal (28 ALJ 205) wherein Mukherji, J. remarked: - - It is a piece of substantive Mohammedan Law that a mutwalli - -whether the waqf be a public or a private one - -cannot, practically speaking, transfer property without the sanction of the Qazi. The mutwalli's power of transfer is very much limited indeed. Cases may occur in which a transfer - of a portion of the waqf property, if timely made, would save the rest from destruction or loss. It is stated in the petition that the present case was like that. If the sanction of the Qazi has to be obtained, under the Mohammedan Law, and, if without a previous sanction being attained, no purchaser may be forthcoming to purchase the property except at the risk of losing it eventually, it is necessary that the mutwalli should be in a position to obtain that sanction. Reliance was also placed on Abdul Rahman v/s. Abdul Hossain ( : 40 CWN 585), which held: - - Under the Mahomedan Law a mutwalli cannot grant a permanent lease of wakf property in the absence of express authority in the waqf deed or leave of the court obtained for the purpose...Such lease being wholly invalid cannot be enforced even against the persons granting it. The same view was adopted in Sundara -murthi v/s. Chotti Bibi ( : AIR 1942 Mad. 641) and it was held: - - Mutwalli has no power to grant a lease of wakf land for more than three years without the sanction of the Quazi. It was, however, made clear in that case: - - Leases granted by the Mutwallis in respect of wakf for more than three years, without the sanction of the court are not void ab initio under the Mohammedan Law but only voidable, and are operative and binding on the mutwalli granting them unless they are declared to be otherwise.;