A Wakf that is not a Wakf-alal-aulad and is dedicated for religious purposes is a public trust and is exempt from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, under G.O. Ms. No. 2000, Home, dated 16th August 1976.

1. The first defendant is the appellant in this second appeal. The respondent plaintiff is one Syed Hussain Wakf represented by its Power Agent Abdul Latif. The respondent filed the suit O.S. No. 6173 of 1976 on the file of the V Assistant Judge, City Civil Court, Madras for recovery of possession of the suit building from the appellant had two other defendants. According to the plaintiff, the first defendant is the tenant under the plaintiff Wakf and the second and third defendants are sub tenants under the first defendant. The suit was dismissed on the ground that the plaintiff Wakf is a private trust to which G.O. Ms. No. 2000, Home, dated 16th August 1976 is not applicable. If the said G.O. is applicable. The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 will not be applicable to the suit building and the present suit for ejectment in a Civil Court is maintainable.

2. But, on appeal by the plaintiff, the lower appellate court in A.S. No. 153 has decreed the suit on the ground that the plaintiff Wakf is a public trust coming under the said G.O. Aggrieved by the said decree, the first defendant alone has preferred this second appeal impleading the plaintiff alone as respondent.

3. Learned counsel for the appellant no doubt initially began to ague on one other question namely that the plaintiff Wakf can be represented only by its mutawalli and not by its alleged Power Agent Abdul Latif. But this point has not been taken as one of the grounds in this second appeal and so, I did not allow him to argue on this point.

4. So, the only question to be decided, is regarding the above said applicability or otherwise of the abovesaid G.O. No doubt, the suit was filed some months prior to the abovesaid date 16.8.1976, when the said G.O. came into force. Prior to 16.8.1986, there was another earlier G.O. dated 12.8.1974 which gave exemption to all religious trusts and charitable institutions and not merely public religious or charitable trusts. But, since the stand of both the parties in this proceedings is that only G.O. Ms. No. 2000 dated 16.8.1976 is applicable. I proceed only on that footing.

5. Regarding the abovesaid question of the applicability or otherwise of G.O. Ms. No. 2000, the learned counsel for the appellant initially submitted that there was no specific plea in this regard. In the plaint, the relevant plea is.

“the suit premises being the Wakf property is exempt from Madras Buildings (Lease and Rent Control) Act.”

According to the said counsel, there is no specific plea that the suit property was a public Wakf property. In the written statement, I find that the first defendant pleads thus:

“even assuming without admitting the suit property is a Wakf property, it being a private Wakf, the same has been released from the exemption granted from the purview of the of the Rent Control Act.”

The said counsels submission is that even subsequent to this plea in the written statement, no step was taken by the plaintiff to amend the plaintiff or to file a reply affidavit stating that the suit Wakf was a public Wakf only. But, I do not think that in the light of the plea taken in the written statement, it is absolutely necessary that the plaintiff should necessarily and specifically raise the plea that the suit Wakf is a public Wakf either by way of amending the plaint or by filing reply statement. Once the defendant takes up the plea that it is a private Wakf, then it is only a matter for proof to be given by the plaintiff to substantiate that the suit Wakf is not a private Wakf and but only public Wakf and that has been actually done at the trial.

6. No doubt, the learned counsel for the appellant also went to the other extreme, by saying that the G.O. exempts only ‘trusts’ in the strict legal sense and not a Wakf which is admittedly not a trust in the strict legal sense, since in a Wakf. Property vests not in any trustee but in God himself and the mutawalli is only a human agency to carry out the objects of the