- (1.) PRAKASH Krishna, J. This is defendant's appeal. It arises out of the suit No. 55 of 1971 filed by one Maqsood Jahan Begum through her daughter as power of attorney holder for possession of premises No. 29 old, 39 new, Kanpur Road (now known as Purshottam Das Tandon Road), Civil Lines, Allahabad as detailed in the plaint and for a decree of past mesne profits from the period beginning from the time defendants No. 1 and 2 have made collection of rent from the tenants to the date of institution of the suit with interest etc. The suit has been decreed by the trial Court.
(2.) THE plaintiff Smt. Maqsood Jahan Begum and Smt. Mahmood Jahan Begum were the real sisters. Indisputably the property in question originally belonged to Smt. Mahmood Jahan Begum. THE house in question has been constructed on a Nazool land belonging to the State Government. A registered lease deed was executed on 19-12-1912 between the Secretary of State for India In Council and Edward Walterchanda for the period of 30 years with effect from 18th day of July 1911 with a renewal clause that the said lease can be renewed twice for 30 years each. Thus lease was for a total period of 90 years. THE lease hold rights changed hands from time to time and ultimately Smt. Mahmood Jahan Begum, the sister of the original plaintiff became the holder of leasehold rights by means of a sale deed in her favour. Smt. Mahmood Jahan Begum was wife of Mahmood Husain who was a barrister at Allahabad, and expired during the life time of Smt. Mahmood Jahan Begum. This couple had no issue. Smt. Mahmood Jahan Begum created a waqf alal aulad by means of registered waqf deed dated 9-11-1966 of this property. THE property in dispute was mutated in the Government records in favour of waqf. Smt. Mahmood Jahan Begum appointed herself as first Mutwalli of waqf. She expired on 29th March 1968. After her death Said Ahmed Jawwad, the appellant No. 1 became the Mutwalli of the waqf. Said Ahmed Jawwad is the step-brother of Mahmood Jahan Begum. Smt. Maqsood Jahan Begum, the plaintiff was residing all the time at Canada and was wife of late Dr. M. A. Rauf, Ex Ambassador of India. After the death of Smt. Mahmood Jahan Begum in the year 1968 the waqf was being managed by the present appellant No. 1 as Mutwalli and in that connection he had kept a portion of accommodation for the purposes of his residence at the time of his stay at Allahabad. He was residing at Delhi. Smt. Qudesiya Saidullah, daughter of Maqsood Jahan Begum was married to Mohd. Saidullah who was on a transferable job and was an I. A. S. Officer. It so happened that he was transferred from Unnao to Allahabad in the year 1969. The appellant No. 1 acceded to the request of Smt. Qudesiya Saidullah for permission to reside in a portion of the accommodation which was kept vacant by the him for his residential purposes to live as a guest for the purposes of education of her children at Allahabad. She subsequently, according to the appellant surreptitiously got the said accommodation allotted in her favour by the Rent Control and Eviction Officer (a delegatee of District Magistrate) under the provisions of U. P. Act No. 3 of 1947. Smt. Qudesiya Saidullah after obtaining the allotment order did not pay any rent to the Mutwalli, Jawwad. Thus the suit No. 96 of 1970 was filed in the Court of Judge Small Causes Court, Allahabad for the ejectment of Smt. Qudesiya Saidullah and recovery of arrears of rent and damages. As a counter-blast to the suit, Smt. Qudesiya Saidullah filed the suit No. 55 of 1971 giving rise to the present appeal as a power of attorney holder of her mother Smt. Maqsood Jahan Begum for possession etc. enumerated in the earlier part of this judgment. The plaint was instituted on the allegations inter alia that Smt. Mahmood Jahan Begum widow of Mohd. Husain, bar at law was the owner in possession of the premises No. 29 (old), new No. 39. It was pleaded that since very beginning of 1969, the defendant No. 1 (here in after to called as the appellant) is wrongly giving out that the property in dispute is a waqf property in view of the waqf deed dated 9- 11-1966. Smt. Mahmood Jahan Begum was an illiterate Pardanaseen lady and was incapable of understanding language, purport and legal transactions, documents and Court affairs. She was aged about 79 years at that time and had been suffering from extreme disability, old age, impairment of hearing and sight and as a matter of fact she did not execute the so called waqf deed dated 9-11-1966. She was not owner of the land of the premises in dispute and was only a lessee and had no power 10 of make a waqf of the same. The waqf deed is void ab initio on the grounds mentioned in paragraph No. 10 of the plaint. The pith and substance of the same is that Smt. Mahmood Jahan Begum was an illiterate Pardanaseen lady and could not have executed the waqf deed of the premises in question as it is a leasehold land. The position of the appellant and of defendant No. 2 is that of a trespasser and the plaintiff being one of the co-sharers is entitled to evict the appellant No. 1 and defendant No. 2 from the premises or any part thereof.
(3.) THE appellant No. 1 in the written statement stated that Smt. Mahmood Jahan Begum was the absolute owner of the premises No. 29/39, Kanpur Road, Allahabad till she executed the waqf deed dated 9-11-1966. She became the Mutwalli after the execution of the waqf deed and after her death, the appellant has become Mutwalli. THE waqf deed has been acted upon. It was further pleaded that Smt. Qudesiya Begum who is occupying only part of the premises as tenant in view of the allotment order dated 2-9-1969 is estopped to challenge the title of the appellant. She tiled the application for allotment of the portion of the said premises treating the premises as waqf property and obtained the allotment order behind the back of the appellant No. 1, Mutwalli of the said waqf. THE plaintiff is estopped to challenge the title of her landlord namely the appellant No. 1 in view of the Section 116 of the Indian Evidence Act. THE suit for ejectment is pending decision. Smt. Mahmood Jahan Begum was the permanent and perpetual lessee of the land upon which the premises stands. She was the absolute owner of the leasehold rights of the premises in question before the date of creation of the waqf. THE said lease is renewable. THE Government had already decided to renew the lease for 90 years hence there is no question of taking away the leasehold rights in respect of the property in question by the Government. In reply to the para 10 of the plaint it was stated in paragraph 10 of the written statement that Smt. Mahmood Jahan Begum did not observe Parda and used to participate in social and political functions and other activities. She was Chairman of the Managing Committee of Hamidiya Girls Inter College Allahabad and remained in chair till her death. On numerous occasions she presided over the public meetings of political and social nature. She was literate lady and could read and write Urdu very well. She was capable of understanding legal affairs, transactions, purports and effects of the documents and particularly of the waqf deed in question. She executed the waqf deed after fully understanding it and on account of her own free will, uninfluenced by the appellant No. 1. Smt. Mahmood Jahan Begum, the settler of waqf divested herself of her property rights since she dedicated the property and mutation in favour of waqf was made in her life time and she started realizing the rent from tenants as Mutwalli of the waqf.;