Judgement

Appeal (No. 135 of 1927) from a decree of the High Court (May 13, 1925), reversing a decree of the Subordinate Judge of Dinajpur (March 29, 1923).

The appeal arose out of a suit by the appellant, the recently appointed mutawalli of a long established

Law. Rep. 57 Ind. App. 125 ( 1929- 1930) Mahammad Mazaffar-Al-Musavi V. Jabeda Khatun

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wakf, to recover khas possession of two mauzas from defendants, who claimed to be permanent tenants.

The material facts appear from the judgment of the Judicial Committee.

The Subordinate Judge made a decree for possession on the ground that a mutawalli could not grant a permanent lease, and the plaintiff was not bound by the acts of his predecessors.

On appeal to the High Court the decree was reversed. The learned judges (Greaves and Mukerji JJ.) held that as a mutawalli could make a permanent lease with the consent of the kazi or the Court, the alleged tenancy could have had a legal origin, and that in the circumstances of the present case the presumption was that it had a legal origin.

1929. Oct. 21, 22. De Gruyther K.C. and Kenworthy Brown for the appellant. It is well established that the grant of a permanent tenancy by a mutawalli is an illegal act Vidya Varuthi v. Balusauri Ayyar. (( 1921) L. R. 48 I. A. 102.) That being so the Court should not have drawn the inference which it did Nainapillai Marakayar v. Ramanathan Chettiar. (( 1923) L. R. 51 I. A. 83, 97, 98.) The decisions in Bawa Magniram Sitaram v. Kasturbhai Manibhai (( 1921) L. R. 49,I. A. 54.); and Chockalingam Pillai v. Mayandi Chettiar (( 1896) I. L. R. 19 M. 485.) that after long possession it could be assumed that a permanent tenancy of debuttur property had been created by the shebait for necessity, do not apply so as to validate a permanent tenancy of wakf property. Although it is stated in Ameer Ali’s Mahommedan Law, 4th ed., i., p. 428, that a mutawalli can create a permanent tenancy with the consent of the kazi, there is no recorded case of a permanent tenancy so granted ; it therefore cannot be regarded as a likely event. Under s. 114 of the Evidence Act a fact cannot be presumed unless it is likely to have happened ; further, under that section, in the absence of evidence that the kazis consent was applied for, the fact that he gave consent cannot be presumed. [Reference was made also to Tulshi Pershad Singh v. Ram Narain Singh. (( 1885) L. R. 12 I. A. 205.)]

Dunne K.C. and Hyam for the respondents. The principle upon which in Bawa Magniram Sitaram v. Kasturbhai Manibhai (( 1921) L. R. 49,I. A. 54.) the Board held that a permanent tenancy of valid origin was to be presumed applies in this case. The reasoning was apart from

s. 114 of the Evidence Act. The appellant tried to displace the presumption by alleging that the tenancy began in 1850 ; but it was conclusively proved to have descended from father to son, and to have been recognized by successive mutawallis, since 1843 or earlier. Even if the wakf was created by the sanad of 1772, its language shows that the tenancy was already in existence. But in any case the prohibition in the sanad only stated the general rule of Mahomedan law and did not deprive the kazi of the discretion which he formerly had to relax the law for the benefit of the wakf.

De Gruyther K.C. in reply referred to Angus v. Dalton. (( 1886) 6 App. Cas. 782, 799, 800.)

1930. Jan. 21. The judgment of their Lordships was delivered by

VISCOUNT SUMNER. The appellant in this case was plaintiff in the suit. He is the hereditary mutawalli 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 appellants predecessors, who had not only never contested the title, but had frequently acknowledged it by various overt acts. Other defences