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Judgment
This appeal by the 2nd defendant is preferred against the, order dated 26-11-1981 passed by the learned XII Addl City Civil Judge Bangalore; in OS No 8041 of 1980 allowing I.A.No. I filed by the plaintiffs and granting an order of temporary injunction pending disposal of the suit restraining the defendants 1 to 4 from running any hotel business in the building constructed in the suit schedule property and selling pork and wine therein, on conditions that the plaintiffs furnish security to the satisfaction of the Court in a sum of Rupees five lakhs; that the plaintiffs should remain present in the Court with their advocates on each and every hearing dates, to prosecute I.As. and to take all steps for the speedy disposal of the suit; that the, plaintiffs shall not remain absent and seek any adjournments on any of the hearing dates.
The trial Court has granted, an order of temporary injunction on the'' basis of the following conclusions:
(i) The suit schedule property is a Shia Wakf, therefore it is governed by Shia Muslim personal law in view of the provisions of S.2 (d) of of the Transfer of Property Act, read with the provisions of Wakf Act, 1955;
ii) Admittedly, the suit schedule property has been leased in favour of defendant No. 1 and that lease has been assigned in favour of defendant-2 with the sanction and approval of the Karnataka Board of Wakfs for construction of a Five Star Hotel wherein, wine and pork is going to be served;
iii) It is the income or usufruct of the suit schedule property and not the suit schedule property that is dedicated for religious and charitable purposes;
iv) No prima facie evidence is adduced, to prove that the suit schedule property has been actually used for religious and charitable purposes and therefore, it is a wakf by user;
v) The defendants have admittedly invested more than 5 crores of rupees in construction of the hotel building and the grant of injunction will result in preventing the defendants from selling liquor and pork in the hotel premises from running the hotel business until the disposal of the suit;
v) By reason of the lease of the suit schedule property in favour of defendant No. 1 and assignment of the lease in favour of defendant No. 2 income is derived from the suit property by permitting the lessee to sell wine and pork;
vi) As far as Sunni Muslim Law is concerned, in the case where the income of the property will be applied for religious and charitable purposes, the lease, of such property is not illegal merely because the lessee is likely to put the property to such an use which is prohibited By Sunni Muslim Personal Law.
vii) It is doubtful whether Problem No. 2213 at page, 407 of the book Tauzihul Musail, revised 1977 edition, is authoritative and is binding on the courts in India. If it is accepted that it lays down Shia Muslim Law correctly as applicable to Shia Muslims in India, leasing of the suit property in favour of defendant No. 1 and its assignment in favour of defendant No. 2, either to keep and sell liquor or to sell pork is void; therefore, the suit raises a triable issue. If the temporary injunction is refused, the defendant-2 will commence the hotel business and start selling of liquor and pork and if that happens, the very ''purpose of the filing of the suit will be rendered nugatory and thereby the injury that is going to be caused to the sentiments of Shia Muslims in general, cannot be measured in terms of money. Whereas, the injury that would be caused to defendants 1 to 4 can be measured in terms of money and it can be adequately compensated.
Hence, balance of convenience lies in favour of the plaintiffs.
The learned Civil Judge, during the course of his order has also come to the conclusion that an injunction can be issued only to restrain the defendants 1 to 4 from selling pork and wine in the hotel constructed in the suit schedule property pending disposal of the suit (vide para XV of the order). But, while passing the operative portion of the order, the learned Judge has granted injunction in the absolute terms as referred to in the opening para of this order. Thus it is clear that the learned Judge has granted an order of temporary injunction only on the ground that the. lease of the suit scheduled property for running a Five Star Hotel is, in effect, a lease for sale of wine and pork; therefore it is opposed to Problem No. 2213 at page 407 of the, book ''Tauzihul revised 1977 Edition and as such, it is void. The decision of the learned Judge on the question of balance of convenience is in turn based on his aforesaid decision on the question of validity of lesae.
In this appeal Sri F.S. Nariman, learned Counsel appearing for, the appellant-2nd defendant, has advanced the following arguments; that the, judicial discretion has not been properly exercised by the trial Court in, granting an order of temporary injunction; that all the aspects of the case have not been taken into consideration; that no prima facie case is made, out for granting an order of temporary injunction; that there is a long delay in approaching the Court; that the plaintiffs must be held to have acquiesced in the matter by their long in action; that the lease in question in favour of the first defendant has been executed in accordance with law and after obtaining due sanction from the Karnataka State Board of Wakfs as required by S. 36A read with Ss 15 (2) (j) of the Wakf Act 1954 (hereinafter referred to. as the ''Act''); that in law it is not necessary that the actual lease deed is to be produced before the authority empowered to accord sanction and it is sufficient if the proposal to lease containing the essential terms of the lease is sanctioned by the, authority empowered to sanction; that the assignment of lease-hold right in favour of the 2nd defendant and the further extensions of the lease period have also been done in accordance with law; that the principles of Muslim law regarding the sale of pork and wine as contained in Problem No. 2213 at page 407 of the book ''Tauzihul Musaif revised 1977 Edition, and as relied upon by the trial Court, are, not applicable to the lease in question in view of the provisions contained in S. 2 (d) of the Transfer of Property Act, inasmuch as the leases fall under Chapter V of the Transfer of Property Act; that even otherwise, the aforesaid principles of Mohammadan Law are not applicable because the lease, is not for sale of pork and wine, but the lease is for putting up structures for running 3 Star Hotel and an open air cinema or any other structures and buildings for running the business of the lessee; that the superstructure put by the lessee on the suit schedule property as per the terms of the lease belongs to the lessee and not to the lessor and it continues to be of the ownership of the lessee untill the expiry of the lease period therefore even if the wine and pork are served, the same are served in the superstructure belonging to the lessee and as such, there is no violation of the aforesaid principle of Mohammadan Law that at any rate the aforesaid principles of Mohammadan Law have become obsolete and are not enforceable having regard to the present day conditions of the society that the building has been completed by investing Rs. 5 Crores; that the suit schedule property before it was leased to the first defendant had been leased to M/s. Mysore Spinning and Manufacturing Ltd., and was in the posession of the Managing Director of that Company and was occupied by people with varied food habits and there were no restrictions for cooking and consuming of any kind of food including meat of all kinds and liquor as borne out from the affidavit of J.M. Sirur; that the balance of convenience is in favour of the appellant defendant No. 2: that the trial court has rightly held that it is not proved that the suit property has become a wakf by user, that haying regard to the terms contained in the lease, deed, the lease is beneficial to the Wakf.
Thus, on the basis of the aforesaid contentions, it is submitted that the trial Court has not exercised the judicial discretion properly and as such, the order deserves to be interfered with in. appeal.
It is contended on behalf of the plaintiffs and the 5th defendant (Karnataka State Board of Wakfs) that the lease in question in effect and in substance, is a lease of the Wakf property for the purpose of vending wine and pork and as such it is opposed to the principles of Mohammadan Law as embodied in Problem No. 2213 at page 407 of the book Tauzihul Musaif'' revised 1977 Edition and also as embodied in the Quoran (a derailed reference to which will be made during the course of this order); that the sanction accorded by the 5th defendant in leasing of the suit schedule property in favour of the 1st defendant is not in accordance with Ss. 15 (2) (j) read with S. 36A of the Act, and Rule 5 of the Karnataka Wakf Rules, 1964 (hereinafter referred to as ''the, Rules''), therefore the lease is null and void that what is sanctioned is the proposed scheme to lease the suit properly and not the actual lease that has been executed by the Muthavallis of the Wak in favour of the first defendant; that the terms contained in the lease deed are even opposed to the scheme proposed by the Muthavallis for leasing the property; that the 1st renewal of the lease for a further period of 20 years and the 2nd renewal for a further period of 40 years are also not in accordance with the provisions of the Act and the Rules; that the sanction for extension of the lease for a further period of 40 years after the expiry of 50 years has been accorded even before the expiry of the period allowed by the notification for filing objections and that it is sanctioned without applying the mind and without examining as to whether it is beneficial to the Wakf; that there is variation in the area sanctioned for lease and the area leased to the first defendant; that the super-structure built on the wakf property becomes part and parcel of the wakf property and as such there is no question of the lessee claiming to be the owner of the super-structure till the expiry of the lease period; that the suit property is the wakf and not merely the income from it, therefore the use of the wakf property is used for sale of wine and pork and the rent paid by the lessee is the product, of sin and under Mohammadam Law, no, wakf is valid which is productive of sin; therefore, the lease for the purpose of selling, wine and pork is impermissible and is invalid; that the lease being opposed to the terms contained in the order according sanction by the 5th defendant and as such it is invalid; that the suit property has become a, wakf by user and the trial court is not right in holding that it is not proved that the suit property has become a wakf by user; that the trial Court is right in holding that injury would be caused to the members of the Shia Community in particular and the members, of the Muslims in general would be, irreparable if the suit property is allowed to be used for running a hotel in the suit property in which pork and wine is going to be served; therefore it is submitted that the trial Court has properly exercised the judicial discretion, hence it is not a case for interference in appeal as the power of the appellate Court in such matter is very much circumscribed.
In the light of the several contentions raised on behalf of the contending parties, the following points arising in this appeal are required to be considered:
i) Whether the trial Court has or has not properly exercised the judicial discretion?
ii) Whether the order of the trial Court requires to be interfered with in appeal?
The answer to each one of these, points depends upon the decision on the several contentions urged on behalf of the contesting parties. Therefore, I now proceed to deal with these contentions:
The plaintiff No. 1.is a, registered society of which the 2nd plaintiff is the president. Plaintiff No. 1 society is stated to have been established with an avowed object, of protecting the rights and interests, of the Muslims in general and Muslims of Shia Community in particular. Defendant No. 1 is the original lessee, defendant No. 2 is the assignee, defendant No.5 is the Karnataka State Board of Wakfs and defendant No. 10 is the Administrator of the Wakf in question. The suit is filed on 15-9-1950 for a declaration:
a) that the defendants 1 to 4 have no lease hold rights in the suit schedule property;
b) that it is the Shia public who are entitled to continuous user and enjoyment of the suit property unaffected by the leases or assignment;
c) that the lease deed dated 15-10-1973 and the assignment dated 13-1-1974 are null and void and confer no legal right upon any of the defendants apart from the incidents of rights as members of the Shia Public.
The plaintiffs have also sought for a consequential relief of perpetual injunction restraining, the defendants or their workmen, agents, assignees successors whomsoever from entering upon the suit schedule property or other wise, further altering or damaging the condition of the property. The plaintiffs have also sought for a mandatory injunction against the defendant''s to restore the property to its original condition as far as it is practical is the circumstances of the case.
The suit property is described in the plaint schedule as the property bearing Corporation Old No. 9 (new No. 25) situated at Sankey Road, Banglore, known as "Baqarbad", measuring 1,65,762 Sq. ft. in extent with bungalow, out-house, street, etc., bounded by North: Melville, House and Thiruvengadaswamy Mudaliar''s property; South by Abshot Estate; East by Mount Carmel College property and West by public road.
1) It is the case of the plaintiffs that the suit property is a wakf property not only because it is created under the Will dated 29.10.1980 and the codicil dated 22-6-1887 executed by late Aga Ali'' Asker. but it has also become a wakf by user.
9.2 However, in the plaint the validity of the codicil is also attacked but for the purpose of deciding this appeal it is not necessary to go into that question though it is argued that the codicil is invalid. But, at the time of pronouncement of this order it is submitted by the learned counsel for the plaintiffs that this contention need not be deal with. ''Therefore, it is not necessary to decide the same in this appeal.
9.3 The further case of ''the, plaintiffs is that on coming into force ofthe Wakf Act, the suit property in question has been registered as Wakf known as ''Aga Ali Asker Wakf Shia'' and it is listed'' at Serial No. 240, of the notification bearing No. MBW 19(1) 64, dated 7th June 1965 published by the 5th defendant under the provisions of sub-sec. (2) of S. 5 of the Act; that the lease executed in favour of the first defendant is opposed to the, provisions contained in S. 15(2) (j) of the Act; that the sanction accorded is also opposed to the principles of Mohammadan Law and is not in conformity with S. 36A of the Act. The plaintiffs have amended the plaint during the pendency of the application for grant of an order of temporary injunction. The plea introduced, by the amendment is as follows:
This Shia community was seized ofthe properly using the same also as Wakf by user, the members of the community have been actually performing the saying prayers at. the occasion of the festival of Ramazan and Bakrid in the suit scheduled premises, viz., on the lawns around the bungalow, which is since pulled down. Religious talks and lectures (majalis) used to be conducted during Moharum; the birthday celebrations of the Prophet used to be celebrated annually by putting up shamiana thereupon. These now face a threat, a threat to last over 90 years.
(4) It is further alleged that in fact and in law, all the transactions relating to Wakf property which amount to sacrilege are null and void; that the authority to grant sanction under the provisions is not an uncontrolled power; that it is vitiated either by S. 36A of the Act or by mistake of fact and law inasmuch as there is mutual mistake about the subject-matter of the contract regarding the area; that the lease for running 3 or 5 Star hotel, a night club, bar or restaurant is a lease intended for unholy purposes and the income in the form of rents or royalty whatsoever, emanting, from an unethical and irreligious source can never be used for the maintenance of a mosque, observance of Azadar-e-Imam Hussain, or any act of benevolence; that the lease is clandestine because it is effected without the consent or approval of the Shia Community; that it is fraudulent because it is obtained by the so called committee and Gangaram to pay off a non-existing and non-compelling demand: that subsequent assignment of lease-hold rights and the extension of the lease are also void etc.
The 2nd defendant, apart from denying the claim made by the plaintffi, has raised several contentions in a lengthy written statement which runs into 36 pages. Broadly stated it is the case of the 2nd defendant that the lease executed in favour of the first defendant and the subsequent assignment in favour of the, 2nd defendant and the renewal of the lease for a period of 20 years and 40 years after the expiry of 50 years are all valid and are done in accordance with the provisions of the Act and the Rules and are not opposed to the principles of Mohammedan Law applicable to Shia Wakf; that the plaintiffs are not entitled for the relief prayed for in the suit, that the lease is neither for immoral or irreligious purposes, nor it is obtained clandestinely or fraudulently; that the suit is barred by times; that the contract does not suffer from mutual mistakes of fact and law; that no objections were filed when the notification was issued before according sanction that the lessee has paid Rs. 1,30,680 as advance contribution to the Wakf Board for a period of 50 years and Rs. 3,56,250 to the wakf as advance rent for a period of ten years; that the demolition of the building that existed at the time of lease had been done in the presence of the representatives of the wakf and the salvageable materials wore transported'' to to Askari Mossue and Shia Kabaristan, Hosur Road, as desired by the Administrator of the Wakf Board; that the construction of Five Star Hotel has been approved by the Government of India and the project is to cost about 6 crores rupees and the construction has been started in or about the month of March 1986, that the Court fee paid is not proper etc., The 2nd defendant has also contended that the building is completed and the plaintiffs are guilty of delay and laches and the balance of conveniences lies in favour of the 2nd defendant: that the plaintiffs have acquiesced in, the matter; therefore they are not entitled for an order of temporary injunction.
1. In this case, for the purpose of this appeal which arises out of an interlocutory proceeding, the, following facts can be taken to have been fairly established. The Wakf in question was created by the late Ags Ali Asker under the will dated 39-10-1880 and the codicil dated 22-6-87 for the purposes mentioned therein which have also been incorporated in the notification published by the 5th defendant under S. 5(2) of the Act For a long time since 1922, the suit schedule property was in the possession of Mysore Spinning and Manufacturing Co. Ltd., as lessee and it was occupied by Sri D.N. Sirur, Managing Director" of the, said company. The Muthavailies of the wakf obtained possession of the, suit property from the aforesaid company only at the fag end of the year 1971 as, stated in para-3 of the scheme for sanction submitted by the Muthavailies of the Wakf to the Wakfs Board. During the period of occupation by Sri D.N. Sirur, the suit property was occupied by people, with varied food habits and there were no restrictions on the cooking or consumption of any kind of food including meat of all kinds or alcohol as stated in the affidavit of Sri J.M. Sirur, the grandson of the aforesaid P.N. Sirur.
2. On the coming into force of the Act, it was listed atSerial No. 240 as ''Agha Ali Asker Wakf Shia in the notification bearing No, MBW. 19(1) 64, dt. 7th June 1965 published by the 5th defendant in exercise of the powers conferred under Sec. 5(2) of the Wakf Act. The Muthavailies of the Wakf submitted a draft scheme dated 18th Oct. 1971 (at page 76 of Book-II) to the Wakf Board for leasing the suit schedule property. The scheme contained all the essential terms of the lease such as description of the property proposed to be leased, period of lease and further renewal of the lease; rent, encumbrance on the property proposed to be leased and how the same should be met etc. Pursuant to the scheme submitted for sanction, the Wakf Board published a notification dated 28th Oct. 1971 in the Karnataka Gazette dated 4th Nov. 1971 which reads as follows:
"Office of the Secretary, the Mysore state Board of Wakfs, 6, Cunningham Road, Bangalore.
Notification dated: 28th October 1971.
"No. MWB Misc. 10/70-71. in exercise of the powers conferred on the Mysore State Board of Wakfs under S. 15(2) (j) and 67(2) (b) of the Wakf Act, 1954, read with Rule 5(2) (3) and (4) framed thereunder, it is hereby notified as follows for the information of the public in general.
The Management of the Wakf registered as Agha Ali Askar Wakf known as Baqarabadi in Sl. No. 240 of the notification No. MWB 19 (1) 64, in the My. Gaz. dt. 7th June 1965, has submitted a schedule of leasing out the said Baqarabad in its entirety.
The salient features of the said scheme are as follows:
(a) that the property, of the said wakf would be leased out to a lessee for a period of 30 years on rental to bepaid per month with varying scale totalling in all to Rs. 13.33,400-00 including arrears of Corporation and other taxes.
(b) that the period of lease can be extended by mutual consent for another period of 20 years after the expiry of the first period of 30 years;
(c) that the lessee pays to the beneficiaries a lumpsum of Rs. 1,59,000 in lieu of recurring monthly payments to be made by way of one-fourth income of the wakf property, calculated for a period of 30 years;
(d) that the lessee has agreed to vacate the entire land together with the present and future structures on it, If constructed by the leasee after the expiry of the lease period.
(e) that the lessee has agreed to abide by all lawful conditions mutually agreed upon between the lessor and the lessee.
Any person interested in the above Wakfs may file his suggestions or objections in writing before this Board within a period of 30 days from the date of publication of this notification in the Mysore Official Gazette.
By order of the Board,
Sd/- K.M. Abdur Rahim Khan,
Secretary."
No objections were filed by any member of the Shia Community nor by any one of the plaintiffs herein. The sanction was accorded by the 5th defendant as revealed from the notice dated 9th August 1972 published in the Karnataka Gazette dated 17-8-1972 which reads as follows:
"Office of the Secretary: Mysore State Board of Wakfs: No. 6, Cuningham Road Bangalore.
Notice dated 9th August 1972.
No. MyW. EPR. 72. In pursuance of the provisions of Rule 5(3) of the Mysore Wakf Rules, 1964, it is hereby published that the Mysore State Board of Wakfs has unanimously resolved to accord sanction to the scheme of lease proposed by the managing committee of the. Aga Ali Asker Wakf, as published in Board''s Notification Notification No. MWB. Misc. 10/70-71 dated 28th October 1971 and notified in the Government Gazette dated 4th November 1971 and the same has been recorded; accordingly.
By Order of the Board,
Secretary."
3) Pursuant to the sanction, the lease deed dt. 15th October 1973 has been executed, and registered, by the Muthavallis of the Wakf in favour of the first defendant. As per clause (3) of the lease, the lesee has also paid Rs. 3 lakhs to the lessor before the registering authority for payment of arrears of tax and for payment to the beneficiaries of the wakf for securing the release of their rights as per the scheme of lease approved by the 5th defendant and this sum has been treated as not refundable and not adjustable and it belongs to the lessor absolutely. The lease is for a period of 30 years with effect from 15-10-1973 and it is renewable at the option of the lessee for a further period of 20 years subject to the terras and conditions specified in the leasee deed. On 29-7-1974, m response to the option exercised; by the lessee the Muthavallies have renewed the lease for a further period of 20 years as per clause (2) of the lease deed. The lessee has assigned the lease in favour of the 2nd defendant on 13-9-1974 under a registered deed and it is witnessed by the Muthavallies of the Wakf. The Wakfs Board has accorded sanction for extension of the lease for a further period of 40 years as per the communication dated 17-5-1975 bearing No. KTW 14 EPR 72 issued by the 5th defendant. The 2nd defendant has paid a sum of Rs. 3,56,250 to the Muthavallis of the wakf being the advance rent up-to 31-10-1985. The 2nd defendant has also paid a sum of Rs. 1,30,680 to the 5th defendant on. 9-9-1977 being the wakf contribution for the entire period of 50 years and it is accepted by the 5th defendant. The existing structure was demolished by the 2nd defendantas per clause (9) of the lease deed and the salvage materials were transported to Askeri Mosque and Shia Kabaristan as stated in the communication dated 22nd February 19P0 addressed by the 5th defendant to the 2nd defendant (vide page 131-Book II). There was another suit filed on 1-7-1980 being O.S. No. 1339/80 by one Mr. Tahirali in the Munsiff Court Bangalore, for permanent injunction restraining the 2nd defendant-appellant from constructing the hotel building on the suit property. In that, an ex parte order of temporary injunction was granted on 2-7-1980 and it was vacated on 6-8-1980. Thereafter, the present suit has been filed on 15-9-1980. The 2nd defendant has completed the building as stated in, the order of the trial Court by investing Rs. 5 lakhs. As per the stand taken by the 2nd de- fendant-appellant, in the building built by it, in the suit schedule property, it is going to run a 5 Star Hotel, wherein wine and pork are to be served to the customers.
Before dealing with the other contentions, the contention that the suit schedule property has become a wakf by user as contended on behalf of the plaintiffs, can conveniently be disposed of As pointed out earlier, the Wakf is created under the Will and the Codicil in question, left by the Agha All Askar. The relevant portion of the Will is as follows:
"Firstly, I give devise and bequeath unto my Executor hereafter named all that my messuage tenant bungalow or house called and known as "BAKHARA ABAD" situated and being No. 6 (six) on the Bellary Road, Bangalore together with the out building yards gardens stablings and all other appurtenances thereto belonging to upon and for the uses trusts intents and purposes and with and subject to the powers previous and limitations hereafter mentioned and expressed of and concerning the same that is to say, In trust that the rents and profits of the said house shall be applied in the first instance to defray the expenses of my funeral, and burial and then in trust in the next place that the rent andprofit of the said house "BAKHARA ARAD"be applied to extent of Rupees eight Hundred only and no mere to the erection and building of a mosques and then in the last place that the rent and profits of the said house be applied from that to time in performance of works of benevolence and charity and also that a portion of the said rents and profits be expended in the Moharum Azadaree of Hussain which works of benevolence and charity I leave entirely to the discretion and judgment of my Executor."
This has been slightly modified in the Codicil, the relevant portion of which is as follows:
"This is second codicil to the last will and Testament of Mr. Aga. Ali Asker of Bangalore which bears date the 9th day of October 1880. Whereas I am desirous of modifying as hereinafter mentioned the Trusts made by the first paragraph of my said Will in. respect of the message tenament bungalow or house called or known as Bakharabad situated and being No. 6 on ''the Bellary Road in Bangalore together with the out buildings yard gardens stablings and all the said appurtenances thereto belonging upon and for the use of Trust intents and purposes and with. subject to the powers and provisions and limitation hereinafter mentioned and expressed of and concerning the same that is to say. In trust. that the rents and profits of the said house and premises shall be applies in the first instance to defray the expanses of my funeral and burial and then in trust in the next place that the rents and profits of the said house and premises be applied as follows namely, one fourth of the same as they occurs to be paid a my nephew and son-in-law, Aga Mohamad. Take or his heirs executors, administrators and assigns for his or their own absolute use and benefit and the remaining three fourth thereof be applied to the extent of Rs. 800/- (Rs. eight hundred only) and no more to the erection and building of a mosque and in performance from time to time of works of benevolence and Charity are also, not a portion of the said three-fourth. of the said merit and profits be extended in the Moharrum Hazadared of Hoosain which works of benevolence and rarity I leave entirely to the discretion and judgment of my director and in all other respects I do confirm my aforesaid will and the codicil there to dated, the 24th day of October 1885.
Thereafter, from the year 1922 to 1971, the suit schedule property has remained in the possession and enjoy men of the Mysore Spinning and Manufacturing Co. Ltd. as lessee. In the meanwhile, the Act has come into force and the 5th defendant, in exercise of the power conferred on it, under sub-section (2)of S.5 of the Act, has published a notification bearing No. MBW 19 (1) 64. dated 7th June, 1965, listing the Wakfs existing in Bangalore Urban District (including Bangalore South and North Taluks). The suit Wakf is listed at Serial No. 240 of the notification. The relevant portion thereof, is as follows:
** ** **
This notification, as per sub-section (4) of S. 5 of the Act, is final and conclusive unless it is modified in pursuance of the decision of the Civil Court under sub-section (1) thereof. At this stage, there is no other material produced to enable the Court to hold that a prima facie case is made out that the Wakf is a Wakf user. In the scheme submitted by the Muthavallis of the wakf to the wakf Board for obtaining sanction to lease the suit schedule property, it was stated that this property was in the possession of Mysore Spinning and Manufacturing Co. Ltd. from 1922 till the fag end of the year 1971. Further, the notification which is referred to above also does not state that it is a wakf either for the purpose of prayers Panjas, or for using as a burial ground or for upkeep of Makkan and for other religious purposes, as it is mentioned in the aforesaid notification in respect of several other wakfs in column (3) thereof. Therefore, at this stage, without further evidence, the trial Court cannot be said to have erred, in holding that there is no prima facie evidence to prove that the suit schedule property has indeed actually been used for religious and charitable purposes so as to hold it to be a wakf by user.
13.1) It is contended by Sri V. Krishnamurthy, learned Counsel for the Wakf-Board (5th defendant) that the lease is invalid because no sanction is accorded to the lease deed as finally executed and the sanction that is accorded is only to the proposal to lease. S.36A of the Act, provides that notwithstanding anything contained in the wakf deed, no transfer of any immoveable property of a wakf by way of.
(i) sale, gift, mortgage or exchange; or (ii) lease for a period exceeding three years in the case of agricultural land, or for a period exceeding one year in case of non-agricultural land or building, shall be valid without the previous sanction of the Board.
13.2) S.15 of the Act, vests in the Board established for the State, the general superintendence of all wakfs in the State and further provides that it shall be the duty of the wakf Board to exercise its powers under the Act, so as to ensure that the wakf under its superintendence are properly maintained, controlled and administered and the income thereof is duly appeal to the objects for which such wakfs were created or intended. Sub-sec (2) of S.15 of the Act enumerates the functions of the Board. As per S.15 (2) (j) of the Act, one of the functions of the Board is no sanction in accordance with the Muslim law, any transfer or immoveable property of a wakf byway of side, gift, mortgage, exchange or lease, as required by S. 36A provide that no such sanction shall be given unless at least two-thirds of the members of the Board vote in favour of such transaction. Rule 3 of the Rules provides for the conditions and restrictions subject to which Board may transfer wakfs property, it also provided for the procedure to be followed for according sanction.
13.3) From S.33A of the Act, it is clear that even for leasing any immoveable property of a wakf for a period longer than the one mentioned in the section according to the nature of the property, previous sanction of the Board isnecessary. The Board is required to give sanction after following the procedure prescribed in Rule 5 of the Rules and as per Ss.15 (2) (j) of the Act. In this case, it is not in dispute that there is a previous sanction accorded by the Wakf Board (5th defendant), but according to the learned Counsel in is not sufficient in law if only a proposal to lease is sanctioned and what is required to be sanctioned is the lease deed as finally settled. Thiscontention is clearly opposed, to the enunciation made by the Supreme Curt in the case of Karanpura Development Co., Ltd., v. Raja Kamakshya Narain, 1958 SCR 325. After referring to the two decisions of the Privy Council, in Gulabsingh v. Seth Golculdas reported in (1913). LR 40 I.A. 117 and Ramhanai Singh DebDarpa Shaha v. Mathewson reported in (1915) L.R. 42 I.A. 97, it has been held as follows:
"The position in law, therefore, is that the requirements as to sanction must be held to be satisfied if the transaction in all its essential particulars hadbeen sanctioned even thoughhere are details to be worked out in furtherance of the sanction and there is no further sanction given to the deed as finally settled.
"Thus, all the essential terms of the agreement must be held to have been sanctioned by the Board) by its letter dated 9-10-1917, and it is of no consequence as laid down in Gulabsingh v. Seth Gokuldas [(1913.) L.R. 40 I.A. 117] and Ramkanai Singh'' Deb Darpashaha, v. Mathewson (1915) L.R. 42 I.A. 97] that the document as finally drafted had not been submitted again for its approval. We should accordingly construe the, letter dialed 9-10-1917 as sufficient sanction under (Section 18."
13.4) In the instant case also, the scheme for leasing the suit property submitted by the Muthayallis to the wakf Board (5th defendant) contains all the essential terms of the lease and it also contains all the particulars as required by sub-rule (2) of Rule 5 of the Rules. The Board has notified it in the Gazette and. thereafter has accorded sanction with reference to the provisions of S 15 (2) (j) and 67 (2) (b) of the Act, read with Rule 5 of the Rules. Thus, failure to submit the lease deed as finally settled to the Board for sanction, cannot be said to have affected the validity of the lease, as in law it is sufficient if previous sanction is obtained with reference to all essential terms of the proposed lease. Of course, as it has been pointed out in the aforesaid decision of the Supreme Court, it was open for the Board to require the Muthavallis to submit the lease deed as finally settled for approval before according sanction or to accord sanction on being satisfied with the essential terms of the lease without requiring the Muthavallis to submit the lease deed as finally settled. Therefore the lease cannot be held to be invalid on the the ground that the lease deed as finally settled has not been submitted for sanction. Hence the contention of the learned Counsel Sri V. Krishnamurthy that the lease deed as finally settled has not been submitted, for sanction, therefore, it is invalid cannot be accepted.
5) It is further contended that the lease is invalid because there is a discrepancy with regard to the area actually leased to the first defendant and the area with reference, towhich sanction is accorded by the 5th defendant. This contention does not prima facie appear to be sound. In the scheme submitted by the muthavallis for leasing the suit property, on the top of it the suit property is described and the extent of it is also mentioned in acres, square yards and square feet. Nowhere in the body of the scheme it is stated that a portion of the suit property known as ''Baqarbad'' is proposed to be leased and not the entire extent of it. In the notification dated 23th October 1971 published in the Karnataka Gazette dated 4-11-1971 which is quoted in extenso in the earlier portion of this order, the Wakf Board has specifically stated that the Muthavallis have submitted a scheme for leasing out the suit property in its entirety. The sanction is also accorded with reference to the aforesaid notification (vide Page 125 of Book-II). Thus, it is clear that neither the muthavallis nor the wakf Board have acted under any mistake with reference to the extent of the property intended to be leased. Therefore, much does not turn upon this contention so as to hold that the lease is invalid because there is a discrepancy with regard to the area actually leased to the 1st defendant, and; the area with reference to which sanction is accorded by the Wakf Board.
1) It is next contended that the scheme submitted for sanction consistent with the object of the wakf intended to preserve the structure that existed on the suit property at the time of submitting the scheme for sanction; therefore, the lease in question which provides for demolition of the structure is beyond the scope of the sanction accorded by the 5th defendant and a also opposed to theobject of the wakfs hence it is invalid. In this connection it is to be noted that under clause (3) of the lease deed, it is the lessor who has retained the right to demolish the existing buildings and the structures on the land leased and to take away the materials and debris thereof. However, the expenses of demolishing the same and transporting the materials and debris to any place within the limits of the Bangalore Corporation has to be borne by the lessee. There is material produced in the case that the demolition was done to the satisfaction of the Wakf Board itself and in addition to that all salvageable materials resulting from the demolition have been safely transported to Askeri Mosque and Shia Kabaristan, Hosur Road as desired by the Wakf Board (vide page 131 of Book No. II). Further, the wakf in question is not for the purpose of conducting prayers or for using it is a burial ground or for Urus or tor performing religious functions It is lor the purpose of providing a source of income for the purpose of charity and also lor the purpose of spending a portion of the rent and profit in Moharrum Azdari of Hussain and for payment of 1/4th of the total income to the nephew of Agha Ali Askar i.e. Agha Mohammad Taki and his heirs Therefore if the existing buildings are permitted to be demolished for the purpose of raising new structures so as to yield better income it is not possible to hold at his stage that the lease is invalid because it has provide for demolition of the existing structures and such a thing is opposed to the object of the Wakf and it is beyond the scope of the sanction
2) It is also contended that the Board has not acted bonafide and has not satisfied as to whether the lease is beneficial to the wakf therefore the sanction is invalid. At this stage it is not possible to consider this contention as it required evidence.
3) It is further contended that the renewal of the lease for a period of 20 years before the expiry of 30 years is illegal and is invalid. This contention also cannot be accepted. Clause (2) of the lease reads as follows:
"The lease shall commence from 15-10-1973 and shall be for a period of 30 years This period shall be renewable at the option of the lessee for a further period of 20 years subject to the terms and conditions specified herein."
The renewal clause is clear and is unambiguous. It gives option to the lessee to have the lease renewed for a further period of 20 years subject to the terms and conditions specified therein. It does not state that such an option should be exercised after the expiry of 30 years. It is now well settled that whenever a lease contains such a renewal clause it confers an immediate right to a further extension as the covenant runs with the land and it is exercisable by the lessee at any time after the commencement of the lease.
4) This principle is also deductible from a decision of the Supreme Court in R. Kemparaj v. Burton son & Co.Pvt. Ltd., AIR 1970 SC 1872, as otherwise that case a decree for specific performance would not have been passed. That was a case in which before the expiry of the period of 10 years from the date of commencement of the lease the lessee exercised his option to seek renewal of the lease and requested the lessor to execute the lease for the period of renewal. The lessor did not comply with the request of the lessee therefore the lessee filed a suit for specific performance of the covenant in the lease be directed for execute a registered lease deed in his favour. The trial Court decreed the suit and it was affirmed by the High Court. In appeal, the Supreme Court also affirmed the decree. Of course, the, question that was considered in the case was as to whether such a clause was in by the rule of perpetuity and as such, a was void.
14.5) At page 739 of the Transfer of Property Act by Mulla, 6th can the legal position in this regard has been summarised as follows:
The lease may contain a covenant for renewal, that is, a covenant to grant a renewal of the lease either at the end of the term or at some stated period within the term. Such a covenant confers an immediate right to a further term, and as the covenant runs with the land it is exercisable by the assignees of the lessee and binds the assignees of the lessor."
Therefore, it is not possible to hold that the renewal of the lease for a further period of 20 years before the expiry of the lease period of 30 years is illegal and invalid. Connected with this contention, another subsidiary contention is raised by the learned Counsel for the Wakf Board, that sanction is required under S.36A of the Act, for renewal of the lease in question for a further period of 20 years; therefore, as no such sanction is obtained, the renewal is bad in law. This contention cannot also be accepted for the simple reason that when the Wakf Board (5th defendant) has accorded sanction for leasing the suit property with a clause for renewal for a further period, of 20 years at the option of the lessee, no further sanction is required to be obtained from the Wakf Board for renewing the lease for a further period of 20 years because it is the option given to the lessee to exercise the right of renewal and such an option for renewal has already been approved by the Board when it has granted sanction for leasing the property in question with a renewal clause for a further of 20 years at the option of the lessee. However, the contention of the learned Counsel Sri V. Krishna Murthy is that the extension of the lease for a further period of 40 years was unnecessary and was not for the benefit of the wakf and it had been granted even before the expiry of the period mentioned in the notification calling for objections. It is not necessary to consider the contention for the, purpose of deciding the appeal in question which arises out of an interlocutory application. In view of the aforesaid decision of the Supreme Court in the case of Karanpura Development Co Ltd., v. Raja Kamakshya Narain, Singh, 1958 SCR 325, it is not necessary to refer to the other decisions, viz., 1976 (1) Kar.L.J. 30 and 1972 (1) Kar. L.J. 157 relied, upon by the learned Counsel for the Wakf Board.
1) Now I take up the contention as to whether the lease in question is opposed to the principles of Mohammadan Law. The relevant clauses of the lease are as follows:
"11) The lessee shall be entitled to sublet the whole or any portion of the property leased . or assign his lessee''s interest subject however to the condition that the lessee shall continue to be liable to the lessor for the due payment of rent by the sublessee or assignee. The lessee shall be entitled to raise monies on the securities of his Lessee''s interest hereunder and structures put up by him.
12) It is agreed between the parties that the lessee shall be at liberty to construct or erect buildings of any value on the vacant land) comprised in the said premises in accordance with the plans approved by the concerned authorities. The Lessee undertakes to put up at least a 3 Star Hotel structure and open Air Cinema or any other structure. The Lessee shall be entitled to apply for and obtain in his own name the necessary licences or permissions or certificates from the concerned authorities for putting up the structures and buildings and for running his business.
13) The Lessee shallbe entitled to apply for and obtain electric and water connections for the property leased. The lessee shell bear all charges for electricity and water consumed in the property leased. It is further agreed between the parties thai; if during the subsistence of the tenancy Lessee''s peaceful enjoyment of the premises is disturbed or hindered due to any defect, of title of any other cause which fact is not made known to the Lessee by the Lessor, the Lessor shall indemnify the Lessee against any loss thereby sustained by the Lessee.
14) If the Lessee fails or neglects to pay the rent reserved for a period of two months after the same has fallen due or commits any breach of any of the terms and conditions of this lease the Lessor may determine the lease and enter upon and take possession of the entire property including the buildings erected by the Lessee, after proper notice.
The Lessor further agrees not to interfere in any manner with the peaceful enjoyment and possession of premises including the buildings and the proposed buildings as and when built in the demised premises."
Thus, the lease is for the purpose of putting up construction of any value for running at least a 3 Star hotel and also for constructing an open air cinema or any other structure which is required for running the business of the lessess.
2) The contention of the plaintiff is that wine and pork are going to be sold in the proposed hotel, therefore the lease in effect and in substance, is for the purpose of selling pork and wine in the suit schedule property, hence it is opposed to the principles of Shia Muslim Law. In support of this contention, the plaintiffs have relied upon Problem No. 2213 at page 407 of the book ''Tavzhul Masail revised 1977 Edn. a true translation of it in English has also been filed by the learned Counsel for the plaintiffs which is as follows:
"There are four conditions for (the validity of) the user for which any property is given on hire.
(1) That user must be lawful (halal). Thus a shop may not be let out for selling liquor nor may an animal be hired cat for transportation of liquor.
(2) That user must be such as is generally considered valuable and not illusory or immoral; nor shall it be one that by religious obligation must be gratuitous. Thus performance of one''s ordinary duties or a place for burial of a corpses cannot be the subject matter of hire;
(3) If any property is such that its use can yield several advantages, it must be specified which particular advantage;s involved in the hiring: for example an animal may be capable of being used for riding and also for transportation, then, it must bespecified which user is permitted under the hiring;
(4) The period for which the user is granted must also be specified; but if the period is not specified but the task is specified, for example in the case of hiring of the services of a Tailor, it is sufficient to indicate the garment that is to be sewn by him.
Certain verses from Quoran have also been relied upon by the plaintiffs, which are as follows:
"A1-Baqarah 2 Part II 69
Verily, verily He has but prohibited that which dies of itself and the blood and the swineflesh and whatsoever has other name than God''s invoked upon it, but whoever is forced to it without the desire (for it) nor to transgress (the limits) then it is no sin on him; Verily God is Forgiving, Merciful.
(See Commentary page No. 75)
A1-Baqarah 2 Part II 91
They ask yoh (O'' Our Messenger Mohammad) concerning wineand lots (gambling and games of chance); Say, in both these is great sin and also some profit for member their sin is greater than their profit; And they also you (O'' our Messenger Mohammad) as to what they spend (in alms) Say whatsoever can be spared thus does God make clear for you the signs so that you may ponder.
(See Commentary page No. 96) Al-Maidah Part VI 285
O'' you who believed violate not the (sancity of) the Monument of god nor the Sacred months not the offering not the symbolic garland (wearing) nor those repairing to the
Sacred House seeking the Grace from their Lord, and (His) Pleasure and when you are free from the (prescribed restrictions of pligrimage) then(you may) hunt: and let not malice of a people because they hindered you from the sacred Mosque incite you to exceed the limits; and help one another in righteousness and piety and help not one another in sin and aggression and take shelter in God (for) Verily God is severe in punishment.
(See Commentary page No. 327)
Al-Maidah 5 Part VII 332
O you who believe intoxicant and games of chance and (deduction of) stones (i.e., idols) and (divination by) arrows, are only an abomination of Satan''s handiworks, so keep away from it so that you may be successful.
(See Commentary page No. 279)
The aforesaid religious tenets even if it is accepted that they form part of Shio Muslim law they are general in nature and the applicability of them is not confined to Wakf properties only.
After the coming into force of the Transfer of Property Act leases of immoveable property are governed by Chapter V of the Transfer of Property Act. S. 2(d) of the Transfer of Property Act, only saves the applicability or the rules of Mohammedan Law to the transactions of transfer falling under Chapter II of the Transfer of Property Act, only saves the applicability Mohammedan Law which is opposed to the provisions contained, in Chapter V of the Transfer of Property Act, cannot be enforced. It is already pointed out that the aforesaid principles of Mohammedan Law (Problem No. 2213 of Tavzihul Masail and certain verses from Quoran as quoted above) are general in their application and are not confined to the transaction lease relating to wakf properties to take away the transaction of lease pertaining to the wakf properties from the purview of the Transfer of Properly Act and thereby to be governed by the Principles of Mohammedan Law read with the provision contained, in the Wakf Act. In other words even with regard to leases of immoveable property of wakf, it is not possible to hold that irrespective of the provision contained in Chapter V of the Transfer of Property Act, leases of such property are governed by Muslim law only. The words in accordance with Muslim law" found in Sec. 15 (2) (j) of the Wakf Act mean, in accordance with the rule of Muslim law pertaining to such transactions which is enforceable.
2) In the case of Radhakishan v. Sridhar, AIR 1960 SC 1368, it has been held by the Supreme Court, as follows:
In the Allahabad case Begum v. Mohammad Yakub ILR 16 All 341 (FB) there was a verbal sale of a house which was followed by possession but there was no registered document. No doubt there the learned Chief Justice in the majority judgment did say that to import into the Mohammedan law of pre-emption the definition of the word "sale" with the restrictions contained in S.54 of the Transfer of Property Ac;i would materially after Mohammedan law of pre-emption and afford fraudulant persons to avoid the law of preemption; with this view Bannerji J, did not agree. But, in our opinion the transfer of property where the Transfer of property Act applies, has as was held by the Privy Council also to be under the provisions of the Transfer of Property Act only and Mohammedan Law of transfer of property cannot override the statute law. Mahmood, J. in Janki v. Girjandat and another ILR 7 All 432 (FB), though in a minority (four judges took a different view) was of the opinion that a valid and perfected sale was a condition precedent to the exercise of the right of preemption and until such sale had been effected the right of pre-emption. could not arise."
The lease in question falls under Chapter V of the Transfer of Property Act. Therefore, in my, opinion, the aforesaid principles of Mohammedan Law cannot be held to govern the lease in question.
16.3) Even otherwise, in the instant case, the lease is not for the purpose of sale of wine or pork The contention that since wine or pork is likely to be served in the hotel which is proposed to be run in the said premises, the lease in effect is a lease for sale of wine and pork cannot be accepted. The dominant object of the lease is to put up constructions for running a hotel and also for running an open air cinema and other constructions as are required for the purpose of running the business of the lessee. The lease of the immoveable property of wakf for the aforesaid purpose of selling wine and pork, as long pose is not prohibited by the aforesaid principles of Mohammedan Law. That the leased is likely to make use of the leased proper for the purpose of celling wine and pork, as long as the lease is for running a hotel and as open-airtheatre cannot furnish a ground for. holding that the lease is opposed to the aforesaid principles of Mohammedan law in as much as the dominant object of the lease is not for selling wine and pork. In this connection it is also to be noticed that as long back in the year 1864about the enforceability of certain principles of Mohammedan Law, it has been held by the High Court of Calcutta in the case of Mullick Abdool Guffoor v. Muleka, (1884) ILR 10 Cal. 1112, 1123, as follows:
"In dealing with these points we must not forget that the Mohammedan Law, to which our attention has been directed in works of very ancient authority, was promulgated, many centuries ago in Baghdad, and other Mohammedan countries, under a very different state of laws and society from that which now prevails ''in India and that although we do our best here in suits between Mohammedans to follow the rules of Mahommedan law, it is often difficult to discover what those rules really were, and still more difficult to reconcile the differences which so constantly arose between the great expounders of the Mahommedan law ordinarily current in India, namely", Abu Haniffa and his two disciples.
We must endeavour, so far as we can, to ascertain the true principles upon which that law was founded, and to administer it with a due regard to the rules of equity, and good conscience, as well as to the laws, and the state of society and circumstances which now prevail in this country.
Having premised thus far, we think that the first of the above points, although it has occupied some time in argument, may be very readily disposed of. In fact it appears to us to have been already settled.
10.4) It is also necessary to notice Sections 4,25 and 35of the Mulla''s Principles of Mahomedan Law, 13th Edn. which are as follows:
"4. Matters, not expressly enumerated.-No rules of Mohammedan law that have not been expressly directed to be applied to Mohammedans can be applied if they have been excluded either expressly ex by implication by legislative enactment,
Precepts of the Prophet.-Neither the ancient texts nor the precepts of the Prophet Mahomed. should be taken literally so as to deduce from them new rules of law especially when such, proposed rules do not conduce to substantial justice.
Ancient texts.-New rules of law are not to be introduced because they seem to lawyers of the present day to follow logically from ancient texts however authoritative when the ancient doctors of the law have not themselves draw those conclusions.
Having regard to these rules; of interpretation of Mohammedan Law and also having regard to the fact that the leaves of immoveable property belonging to ''Muslims falling under Chapter V of the Transfer of; Property Act, are governed by that Chapter and not by the principles of Mohammedan Law, I am of the view that the aforesaid principle of Mohammedan Law cannot be applied to the lease in question which falls under Chapter-V of the Transfer of Property Act.
16.5) The learned Counsel for the appellant-2nd defendant has also referred to certain passage from The The Hedaya (Commentary on Islame Laws) translated by Charles Hamilton at pages 544 and 606 and a passage at page 59 from the ''Mohammedan Jurisprudence'' by Abdur Rahim and also certain passages from the ''Digest of Mohammedan law by Baillee part II, at pages 213 and 217. Having regard to the conclusions reached by me, it is not necessary to refer to the aforesaid passages in detail and to consider the applicability of the same to the facts of the present case.
16.6) It also appears to me that if the aforesaid Principles of Mohammedan Law are held to be applicable to leases of immoveable property belonging to a Mohammedan, whether such a lease is between the Muslims or between a Muslim and a non-Muslim, the same are likely to affect the fundamental right to practise any profession or to carry on any occupation, trade or business which is guaranteed to all the citizens of India irrespective of caste, dread and religion, and a Constitutional right to property is also likely to be affected. But, it is not necessary to consider this question as the same is not argued in the case.
16.7) It is also contended on behalf of the appellant 2nd defendant that even if it is held that the aforesaid principles of Mohammedan Law ere enforceable and are applicable to the lease in question, wine and pork are not going to be served in the wakf property belonging to the lessor but the same are going to be served in the hotel premises which is put up by the lessee and which belongs to the lessee; therefore the lease cannot be held to be invalid.
16.8) On the contrary, it is contended by Sri. V. Krishna Murthy, learned Counsel for the Wakf Board, that there is no diversification of the building from the land and as such, the building in question constructed by the lessee becomes part and parcel of the wakf property and"no wakf which is productive of sin is valid" (Vide Mohammedan Law by Amir All at Page 403), therefor the lease must be hold to be in valid. The contention that the construction put up by the lessee, becomes the property of the wakf even before the, expiry of the lease period cannot be accepted having regard to the terms contained in the lease deed. Clauses (10) of the lease deed in question, provide that on the expiry of the lease, the Leases shall surrender to the lessor the property leased with such buildings and structures as erected by the lessee, without any claim for value or any compensation for the same. Clause (9) of the lease deed, further provides that in case the whole or any part of the property leased isacquired, the compensation for buildings or structures put by the lessee shall go to the lessee. The compensation for the land will go entirely to the lessor. Further, what is demised under the lease deed is the property as described in, the schedule to the lease which duty not include the constructions put up by the lessee. Therefore, it is clear that the lessee continues to be the owner of the constructions put up by it during the subsistence of the lease. The dual ownership of the property (the land belonging to the lessor and the building put up on it by the lessee belonging to the lessee during the subsistence of the lease) is well recognised in law in India. (See AIR 1958 S.C. 780 and also A.I.R. 1961 S.C. 1570).
However, learned Counsel Sri. V. Krishna Murthy, has placed reliance on another decision of the Supreme Court in the case of Bhatia Co-Op. Housing Society v. D.C. Patel, AIR 1953 SC 16. This decision has also been referred to by the Supreme Court in the case of K.A. Dhairyawan v. J.K. Thakur, AIR 1958 SC 789. It has been held by the Supreme, Court that in the case Bhatia Co-optv, Housing Society, AIR 1953 SC 16, the lease itself specifically provided that immediately agree completion of the building within the time specified the trustees shall grant the lease of the said plot with buildingthereon lor a period of 90th years from the date of auction at an years tent calculated in accordance with the accepted bid for the plot. The Trustees pursuant to the said agreement and in consideration of the money which had been expended lor erecting bulidings had demised to the leasee not only the land but also the bunding executed thereon. In the instant case, there is no such demise of the building put up by the lessee. In the leasem question what is demised is the wakf property as it existed on the, date of the lease; therefore the aforesaid decision in Bhatia Co-operative Housing Society''s case is not applicable to in facia of the present case. Thus the lessee continues to be the owner of the buildings put up by it in which, the hotel business is proposed to be run, therefore, it cannot also be said that the wakf property is used for the purpose of selling wine and pork.
From what has been stated above, it becomes clear that the learned trial Judge has not taken into consideration ail the aspects of the case and has mainly based his decision on the doubtful applicability of the principles of Mohammedan Law as contained inProblem 2213 of Tavzihul, Masail, 1977 Edt. In granting injunction, great caution is required to be taken. The right, the protection of which is sought for, must be clear. The injunction cannot be granted in doubtful cases. The learned trial Judge even after coming to the conclusion that be is doubtful about the applicability of the principles of Mohammedan Law as contained in Problem 2213 of the Tavzihul Masail, has nevertheless granted injunction only on that basis and thereby has prevented the appellant 2nd defendant from running the hotel in the building which has been completed. Having regard to the pleadings and the other material priced on record, it is not possible to hold that the plaintiffs were unaware of the lease and also putting up of the construction on the suit property by the appellant-2nd defendant. The Muthavallis of the wakf in question who had leased the suit property were members of the Shia Community. At the time of granting sanction for leasing the suit property, the constitution of the Wakf Board included a member from Shia Community. The proposal to lease was notified in the gazette and no objections were filed either by the plaintiffs or any member of the Shia Community in particular and members of the Muslim Community in general. Therefore the trial Judge having failed to take into consideration all the aspects of the case has failed to exercise the judicial discretion properly. Consequently, he has also arrived at a wrong conclusion regarding balance of convenience also. It is also to be noticed that in the earlier portion of the order, the learned trial Judge has come to the conclusion that an injunction can be granted only to the effect that the defendants 1 to 4 shall not serve wine and pork in the hotel which they propose to run in the suit property. But, while passing the operative portion of the order, he has granted injunction in absolute terms. This also shows that there is no proper application of mind.
For the reasons stated above I am of the view that the learned trial Judge has not exercised the judicial discretion properly and as such, it is a case for interference in appeal. Accordingly, this appeal is allowed. The order passed by the learned trial Judge in O.S.NO.8041 of 1980, dt 26-11-1981 is set aside and the application for an order of temporary injunction is also rejected.
However, it is made clear that the opinion expressed in this order on questions of fact should! not be taken to have been expressed finally and the same shall not have any effect on the final decision in the suit.
In this appeal, there will be no order as to costs.
In view of the fact that the appeal is allowed, the security which is stated to have been furnished by the plaintiffs can be got cancelled.
There is an application filed by the respondents stating that they intend to approach the Supreme Court, therefore, status quo prevailing as on to-day be continued for 4 weeks. It is also submitted on behalf of the respondents that they have no objection for the appellant to open the hotel provided it does not serve wine and swine-flesh. This request is opposed by the learned Counsel for the appellant. However, with a view to give an opportunity to the respondents and to enable them to approach the Supreme Court in the matter, the appellant is permitted to open the hotel and run it without serving wine and swine flesh. The appellant, if he opens the hotel, as restrained from serving wine and swine flesh in the hotel for a period of four weeks from to-day.