Judgment Narasimham, J. 1. This is an appeal by the plaintiff against the judgment of a single Judge of this Court affirming the judgment of the Second Additional Subordinate Judge, Chapra, and dismissing the plaintiffs suit for recovery of possession of certain Wakf-property situate in Manalla Brahampur in Chapra town. The facts found are these. One Sah Mohammad Sayeed was the Mutawalli of the Wakf till his death in 1945. The appellant plaintiff is his son. Mutawalli Sayeed leased out the disputed properties on a permanent basis, in favour of defendant No. 1 by executing three registered documents on the 16th December, 1927. The recitals in the documents show that the settlement was made for agricultural purposes and the settles was given the rights to cultivate the lands and perform other agricultural operations. After the death of Mutwalli Sayeed, the plaintiff (his son) tried to annul the leases on the ground that a Mutwalli had no right to create an agricultural lease of wakf-property for a period exceeding three years and that consequently his successor-in-office was entitled to avoid the lease. The learned single Judge, while agreeing with the proposition of law that a Mutwalli cannot grant a permanent lease of the Wakf-property, nevertheless held that the defendant No. 1 acquired occupancy rayati status by virtue of the provisions of the Bihar Tenancy Act and that consequently he was not evictable. This is the only point of law for consideration in this appeal. 2. It is settled law that a Mutwalli has no power to grant a lease of Wakf-property for agricultural purposes for a term exceeding three years (See Sec.208 of Mullas Mahomedan Law, fifteenth edition). But the more difficult question to decide is whether when such a lessee holds over and remains in possession of the land for more than twelve years, he acquires occupancy rights by virtue of the provisions of the Bihar Tenancy Act. The answer to this depends on (1) what will be the status of the lessee when he obtains possession of the leasehold property from the Mutawalli, and (2) what will be his status when he continues in possession after the expiry of the period of three years for which the Mutvalli had undoubted authority to grant the lease. 3. As already stated, the leases were for agricultural purposes. 3. As already stated, the leases were for agricultural purposes. Hence when defendant No. 1 obtained the leases from the then Mutwalli in 1927 and entered into possession of the leasehold property, he clearly became a raiyat. It is true that in those registered leases the Mutawalli purported to grant a permanent right, but the leases will not on that account become wholly void, but they will be valid to the extent of the authority conferred by Muhammadan Law on the Mutawalli to grant such agricultural leases. Hence for a period of three years from 1927 the status of defendant No. 1 would be that of a mere non-occupancy raiyat. When that period expired, it was open to the Mutawalli, or to any other beneficiary of the wakf property, to take steps for his eviction, but this was not done, with the result that the defendant continued to remain in possession as a non-occupancy raiyat for more than the statutory period of twelve years till the death of the old Mutawalli sometime in 1945. Thus having been inducted as a raiyat on the disputed property, defendant No. 1 continued in possession as a raiyat for the prescribed period of twelve years and he acquires occupancy rights by virtue of Sections 20 and 21 of the Bihar Tenancy Act. Thus, though the Mutawalli had no power to create a permanent agricultural lease, nevertheless by the operation of another law, namely, the Bihar Tenancy Act, occupancy rights would accrue to the lessee, provided that the lessee is a raiyat and continues in possession of the land as raiyat for the period of twelve years. 4. Mr. Asghar Hussain for the appellant, however, contended that as the Mutawallis power to create agricultural leases was itself limited to three years by the operation of the Muhammadan Law, any permanent lease granted by him would be void ab initio, or else, at any rate, it would be avoidable after the expiry of three years from the date of the lease and that defendant No. 1s possession became thereafter that of a mere trespasser, who cannot acquire occupancy rights under the provisions of the Bihar Tenancy Act. 5. 5. As early as 1869, the Privy Council, in Maharanee Shibessuree Debia V/s. Mothooranath Acharjo, 13 Moo Ind App 270 (P C) pointed out that a Sebait of Zemindary property though a manager of the endowment could in exercise of his office "create proper derivative tenures and estates conformable to usage". A ryotwary tenure is a derivative tenure as pointed out by their Lordships in that judgment itself. In Sri Vidya Varuthi Thirtha Swamigal V/s. S. Baluswami Ayyar, AIR 1922 P C 123 it was pointed out by the Privy Council itself that the law is the same in respect of wakf property also. The definition of the expression proprietor in Sec.3 (2) of the Bihar Tenancy Act is as follows : "Proprietor means a person owning, whether in trust or for his own benefit, an estate or part of an estate." It will be noticed that the definition includes not only the actual proprietor, but any other person owning, whether in trust or for his own benefit, an estate. The legal position of the Mutwalli in respect of wakf property has been summarised in Abdul Razak V/s. Ali Baksh, AIR 1946 Lah 200 at p. 213 as follows : "The duties of a Mutawalli may be akin to those of a trustee; he may even loosely be called a trustee, but the legal incidents governing the two are not the same. The property under trust vests in a trustee but a wakf can never vest in a Mutwalli. He can claim no right of ownership, or estate in the wakf, hut is merely entrusted with the fulfilment of the objects of the wakf. His position, therefore, is no more than that of a superintendent or manager." Following this decision, therefore, it must be held, that though the Mutwalli may not be a "trustee" in the strict legal sense of the term, nevertheless being entrusted with the management of the wakf property he would come within the definition of "proprietor" given in Sec.3 (2) of the Bihar Tenancy Act. The observations of the Privy Council in 13 Moo Ind App 270 (PC), quoted above, were made at a time when the Bengal Tenancy Act had not come into force, but it is beyond question, that settlement of agricultural lands with raiyats is conformable to well established usage and hence it must be held that a person who takes land on lease from a Mutawalli for agricultural purposes becomes a raiyat within the meaning of the Bihar Tenancy Act. Mr. Asghar Hussain, however, relied on some observation of the Supreme Court in Garjan Singh V/s. Kanhaiya Singh, 1961 B L J R 432 to the effect that a tenant inducted by a mortgagee cannot claim the status of a raiyat by virtue of the provisions of the Bihar Tenancy Act. But, in my opinion, the position of a mortgagee is fundamentally different from that of a Mutwalli. Their Lordships of the Supreme Court pointed out that a mortgagee is neither a proprietor nor a tenure-holder and hence his lessee cannot be a raiyat in view of the definition given in Sec. 5 (3) of the Bihar Tenancy Act. But as already pointed out, a Mutwalli will come within the wide definition of the expression "proprietor" as given in Sec.3 (2) of the said Act and hence a person cultivating lands under him becomes a raiyat as defined in Sec. 5 (3)1 of the Act. 6. On the main question as to whether the registered leases executed by the previous Mutawalli in favour of defendant No. 1 are void ab initio or only voidable, I need only refer to Sundaramurthi Nainar V/s. Chotti Bibi, AIR 1942 Mad 641 , where the learned Judges pointed out at p. 643 that, "leases granted by the Mutwallis in respect of land for more than three years are not void ab initio under the Mahomedan law but only voidable. Authoritative texts have been cited in that decision in support of this view and it is unnecessary to repeat them here. To a similar effect is the decision of the Culcutta High Court in Gajendra Nath Dey V/s. Moulvi Ashraf Hussain, AIR 1923 Cal 130 at p. 132. 7. Authoritative texts have been cited in that decision in support of this view and it is unnecessary to repeat them here. To a similar effect is the decision of the Culcutta High Court in Gajendra Nath Dey V/s. Moulvi Ashraf Hussain, AIR 1923 Cal 130 at p. 132. 7. Hence, in no view of the case, it can be held, that defendant No. 1 was a trespasser either when he took over possession in 1927, or when he continued in possession after the expiry of the period of three years. It is true that the same Mutwalli who had executed permanent leases in his favour may not be expected to take steps for his eviction after the expiry of three years, but even if he failed to do so, other beneficiaries could have taken such steps as permitted by the Muhammadan law. This was not done and defendant No. 1 remained in continuous possession as a raiyat for more than twelve years and thereby acquired occupancy rights. A voidable lease continues to remain valid until it is avoided in accordance with the provisions of the law. 8. Mr. Hussain then cited Jogendra Singh V/s. Kesho Prasad Singh, 5 Pat L T 546 : (A I R 1922 Pat 429), where it was held that a temporary lessee of Zerait lands of the proprietor cannot create occupancy rights by settling the lands with sub-tenants, even though they may be in possession for a long time. The facts of that case are, however, fundamentally different. The temporary lessee expressly agreed not to sub-let the property and the proprietor reserved to himself the liberty to settle the lands with whomsoever he may like after the expiry of the lease. The lands were also admitted to be zerait lands of the proprietor where occupancy rights could not ordinarily accrue. Hence, however, the position of the Mutwalli is not that of a mere temporary lessee. He is the manager and for all practical purposes in the position of a trustee of the wakf property until he is removed from his Mutwalliship. The lands were also admitted to be zerait lands of the proprietor where occupancy rights could not ordinarily accrue. Hence, however, the position of the Mutwalli is not that of a mere temporary lessee. He is the manager and for all practical purposes in the position of a trustee of the wakf property until he is removed from his Mutwalliship. It is true that by virtue of the limitation imposed on him by the Muhammadan law, he cannot grant a permanent lease to a tenant, but if independent of his right to grant, the tenant acquires occupancy status by virtue of another statute, such acquisition does not in any way detract from the limited nature of his right to grant a lease. This principle is practically implied in the observation of Mullick J. in Raghubir Singh V/s. Jethu Mahton, ILR 2 Pat 171: (AIR 1923 Pat 130) which was also cited very fairly by Mr. Hussain. In that case, a limited owner, namely, a Hindu lady in possession of a raiyati holding, granted a lease to an under-tenant and the question arose whether after the death of the Hindu lady the reversioners could evict the under-tenant. Mullick J, pointed out that the under-tenant was liable to be evicted "unless he can show that he has acquired any statutory right of occupancy". This passage supports the view that whatever may be the disabilities under which the lessor may suffer, nevertheless if the lessee acquires occupancy right under some other law, such as a local Tenancy Act, that right cannot be taken away. 9. For these reasons, I would affirm the judgment and decree of the learned single Judge and dismiss the appeal with costs. S.P.Singh, J. 10 I agree.