JUDGMENT :- The facts giving rise to this appeal are as follows:

2. The disputed property was part of a Waqf property. Smt. Hamida and Smt. Zubaida were the mutwallis of the Waqf. They executed a permanent lease in favour of Shafiuddin, the husband of Smt. Hamida about ten and half kattas of Waqf land. Shafiuddin built a Kachcha construction on the part of the land which was leased out to him. That land has been shown in the map of the Amin by letters YZBA. The plaintiffs purchased this land from Shafiuddin. The defendant is also said to have purchased this land. There was a dispute between the defendant and the plaintiffs about the possession of the land which resulted in a proceeding under Section 145, Cr.P.C. and it was decided in favour of the defendant. The plaintiffs then brought a suit.

3. The defendant contested the suit alleging that the land belonged to him and he was the original owner of the same. He also contended that the mutwallis had no right to lease out the Waqf property and, as such, no right and interest was created in favour of Shafiuddin nor Shafiuddin had any power to execute the sale deed in favour of the plaintiffs.

4. The learned Munsif held that the land which the defendant No.1 purchased was a land other than the disputed land. He also held that the disputed land was the same which was leased out to Shafiuddin and it was sold by Shafiuddin to the plaintiffs, but dismissed the suit on the finding that the mutwallis Smt. Zubaida and Smt. Hamida had no power to execute a permanent lease in favour of Shafiuddin and, therefore, the plaintiffs had no right, title and interest in the disputed land.

5. On appeal by the plaintiffs, the lower appellate Court held that the lease deed was voidable document and was a good and valid document till it was avoided by the mutwallis or beneficiaries and, therefore, the view taken by the Munsif was wrong. He, therefore, allowed the appeal and decreed the plaintiffs' suit. Being dissatisfied, the defendant has filed this appeal.

6. The first question which has to be determined in this case is as to whether the lease deed executed by Smt. Zubaida and Smt. Hamida in favour of Shafiuddin was a void document or a voidable document. If it was a document void ab initio, certainly, no right passed to Shafiuddin which he could have subsequently sold to the plaintiffs but if it was a document which could be avoided, then certainly it was a good and valid document till it was avoided by the person concerned.

7. The learned counsel for the appellant read over the Waqf deed and the lease deed to me. There is no dispute that the mutwallis, under the Mohammedan Law, had no right to execute such a lease of a permanent character unless the permission of the Waqf Board was obtained, but if a mutwalli executed any deed which was not permitted under the Mohammedan Law or it exceeded the right given to him under the law, the deed cannot become void ab initio. It can be a valid document unless it was avoided by the persons concerned. Certainly this deed has not been avoided by the mutwallis or beneficiaries. As a second limb of his argument, the learned counsel for the appellant contended that even if this lease was valid till the lifetime of the mutwallis, it did not create any title and interest in the lessee, namely, Shafiuddin, because the lease was executed against the conditions laid down in the waqf deed. A lease deed of any agricultural land which is under a Waqf cannot be created for more than three years and for other properties, such a lease cannot be created for more than a period of one year unless the permission of the District Judge, now the Waqf Board, is obtained. To my mind, there is not the least doubt that such a document, if executed, can be validated retrospectively by obtaining permission of the Waqf Board. Thus by no stretch of imagination, it can be said that the lease is void ab initio.

8. Agreements which are void ab initio have been mentioned under Section 30 of the In

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