JUDGMENT

M.N. Shukla, J. - The question of Iaw 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.

2. 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. I namely Delhi Iron and Steel Company 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 Waqf (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. I for a period of over one year in respect of a part of the Waqt 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 Company Ltd., was simply a trespasser. It was also alleged that the stipulated rent of Rs. 6,000/- 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.

3. The Mutwalli did not contest the suit. The Delhi Iron and Steel Company 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.

4. The question therefore on which the decision of the suit hinged was as to whether the aforesaid lease dated 8-12-1947 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' Principles of Mohommedan Law, Sixteenth Edition, which runs as follows :-

"208. Power of Mutwalli to grant leases - A Mutwalli has no power to grant a lease of waqf 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 authorised 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 page 439 of Mohammedan Law by Amir Ali Volume, I, third edition, which was as follows :-

"Neither the cestui qui trust nor the administrator can grant a lease of the waqf property for a long "period". According to Sidi 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 waqf property must be kept in good repair, and that future beneficiaries can, in order to preserve their rights, oblige the usufructor 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 paragraph 561 at