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. 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. 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 page 626 of Tyabji on Muslim Law, fourth edition, which is to the following effect :- "Subject to the provisions of the various waqf Acts which empowers the statutory authorities created under the said Acts, the mutwalli may obtain the sanction of the court for the sale or mortgage of waqf property by an application under the Indian Trustees Act, XXVII of 1866. But otherwise the sanction must be obtained by instituting a suit." Another observation occurring in paragraph 559 of the same book may be quoted :- "Now statutory authorities created under various waqf statutes have drastically curtailed and regulated the powers with regard to alienation of waqf properties." The learned counsel for the appellant also relied on a number of authorities in support of his proposition. He referred to a division Bench decision of this Court in Askari Husain v. Chunni Lal, 28 A.L.J. 205, wherein Mukerji, J. remarked. "It is a piece of substantive Mohammedan Law that a mutwalli-whether the waqf be a public or a private one-cannot, practically speaking, transfer property without the sanction of the Qazi. The mutwalli's power of transfer is very much limited indeed, cases may occur in which a transfer of a portion of the waqf property if timely made, would save the rest from destruction or loss. It is stated in the petition that the present case was like that. The mutwalli's power of transfer is very much limited indeed, cases may occur in which a transfer of a portion of the waqf property if timely made, would save the rest from destruction or loss. It is stated in the petition that the present case was like that. If the sanction of the Qazi has to be obtained, under the Mohammedan Law, and, if without a previous sanction being attained, no purchaser may be forthcoming to purchase the property except at the risk of losing it eventually, it is necessary that the mutwalli should be in a position to obtain that sanction." Reliance was also placed on Abdul Rahman v. Abdul Hossain, 40 Calcutta Weekly Notes, 585, which held :- "Under the Mohammedan Law a mutwalli cannot grant a permanent lease of waqf property in the absence of express authority in the waqf deed or leave of the court obtained for the purpose... Such lease being wholly invalid cannot be enforced even against the persons granting it." The same view was adopted in Sundaramurthi v. Chotti Bibi, A.I.R. 1942 Madras 641 and it was held :- "Mutwalli has no power to grant a lease of wakf land for more than three years without the sanction of the Quazi." It was, however, made clear in that case :- "Leases granted by the mutwallis in respect of wakf for more than three years, without the sanction of the court are not void ab initio under the Mohammedan Law but only voidable, and are operative and binding on the mutwalli granting them unless they are declared to be otherwise." 5. As against the above the learned counsel for the respondents cited a number of cases wherein a contrary view was expressed. His contention was that under the strict rules of Mohammedan Law the leave of the court may be necessary for making a lease for a period exceeding one year, but such lease in the absence of sanction of the court would not be void if it is found to be for the benefit of the waqf. In other words, it was argued that an alienation made by a Mutwalli without the leave of the court cannot be struck down as void if it is found to be for legal necessity or in the interest of the beneficiaries. In other words, it was argued that an alienation made by a Mutwalli without the leave of the court cannot be struck down as void if it is found to be for legal necessity or in the interest of the beneficiaries. The first case to which reference was made was Nimai Chand Addya v. Golam Hossain, I.L.R. 37 Calcutta 179, which must be regarded as the leading authority on the point. In that case a mortgage of the waqf property was made by the Mutwalli on account of pressing necessity without the permission of the Qazi. Later the validity of the transfer was challenged in a suit and the court found that the mortgage of the waqf properties was for urgent necessity and was proper. For that reason it was held to be a valid mortgage in law, in as much as it might he taken to have been retrospectively approved by the court. The above decision Was followed by a division Bench of this court in, Afzal Husain v. Chhedi Lal, A.I.R. 1935 Allahabad 792. It Was observed at page 797 :- "On a review of all these rulings we are of the opinion that the distinction drawn in I. L.R. 37 Calcutta 179 (i) , is a distinction which we should follow and that in the present case the validity of the mortgage depends on whether we consider that the usufructuary mortgage was one which should have been sanctioned by the District judge if an application had been made to him previous to the execution of this supurdnama." It was further pointed out. "The transaction was therefore clearly one intended to preserve the wakf property. Under these circumstances we have no doubt that a District Judge would have acted correctly in giving sanction for the supurdnama." Thus, the criterian applied was as to whether on a review of all the circumstances it could be held that the transaction was actually for the benefit of the waqf and in case such circumstances were brought to the notice of the court and leave asked for on their basis a good case for grant of sanction would have been made out or not. In other words, the validity of the transaction was made to depend not on any rigid rule such as the presence or absence of the sanction of the court but on the merits of the case i.e. the propriety of grant of sanction in the circumstances in which the transaction was made. That was the rule on which the transaction in question could be upheld or struck clown. The ratio of 37 Calcutta 179 and 1935 Allahabad 792 was adopted and approved in Zafarbhai v. Chhaganlal, A.I.R. 1942 Bombay 21. It was held :- "Under the Mohammedan Law it is competent to a mutwalli to lease for a long term the wakf property with the sanction of the court and even if such sanction is not obtained, the Court has the power to grant retrospective sanction if it is satisfied that the transaction is for the benefit of the institution." It was remarked by King, J. :- "I see no distinction in principle between antecedent and subsequent sanction in the case of a long term lease if a mortgage by a mutwalli can be validated by subsequent sanction as in 37 Cal. 179 and 57 All 727. The test in both the cases is the same viz., necessity or benefit to the institution." The same principle was elaborately discussed by Rajamannar, C. J. in Abdul Kadir v. Kadiria Sabha, A.I.R. 1953 Madras 143.It was pointed out that the object of the sanction was evidently to provide safeguard against improper alienations and that purpose would be amply served by insisting upon sanction of the court, either previous or subsequently, so long of course as there is an assurance that the transaction could be examined on its merits and there is an enquiry as to whether it is supported by legal necessity or benefit to the trust. Thus, if necessity is established or benefit to the institution is proved, the transaction must be upheld notwithstanding the want of sanction by the court. 6. Thus, if necessity is established or benefit to the institution is proved, the transaction must be upheld notwithstanding the want of sanction by the court. 6. In Saleb Khan v. Madar Saheb, A.I.R. 1954 Orissa 239, it was held that in the absence of any express provision in the wakf deed a Mutwalli was not entitled to make any alienation of the wakf property even for legal necessity, without the permission of the court, but in appropriate cases alienations might be permitted with retrospective effect and that such alienations were only voidable and not void ab initio. 7. Thus, in my opinion, if legal necessity or benefit to the institution or beneficiaries is proved, the transaction must be upheld notwithstanding the fact that the alienation was not initially made with the sanction of the court. 8. The other point which was raised on behalf of the appellants was that even though in appropriate cases sanction of the court may be granted with retrospective effect, yet there must be a prayer for such permission, which can be granted only by the principal court of original civil jurisdiction. My attention was drawn to the fact that in the instant case there was no prayer made for grant of permission with retrospective effect. The authorities on this point have been somewhat conflicting. In Habibar Raheman v. Saidannessa Bibi, I.L.R. 51 Calcutta 331, it was held that the requisite sanction of the District judge may be obtained on an application to him by a mutwalli who finds it necessary to make an alienation of the wakf property. In Abdul Rahman v. Abdul Hossain Molla, 40 Calcutta Weekly Notes, 585, also the same opinion was expressed. It was held that leave for alienation may be obtained from the District judge and that leave of a Munsif in a suit which was pending before him and was compromised was not sufficient to validate a permanent lease granted by the Mutwalli by the terms of such compromise. On the other hand, in I.L.R. 37 Calcutta 179 the view expressed was that the civil court had taken the place of the Qazi under the Mohammedan Law. In A. I. R. 1942 Bombay 21 also the contention was repelled that the District judge alone enjoyed the function of the Qazi and that he alone was competent to grant the sanction. In A. I. R. 1942 Bombay 21 also the contention was repelled that the District judge alone enjoyed the function of the Qazi and that he alone was competent to grant the sanction. In that case the defendant had expressly asked in his written statement for such permission as was necessary and repeated the same in the memo of appeal in the lower appellate court. The case was tried by the Assistant judge and the objection raised was that even if the transaction could be subsequently validated by the court it was only the District judge who could do it and not the Assistant judge, because the power of Qazi who could under the Mohammedan Law grant such prayer was being exercised by the District judge and not by any Judge subordinate to him. That contention was repelled. The decision in the leading case i.e., I. L.R. 37 Calcutta 179 was followed and the following passage was extracted with approval :- "We can see no reason why an approval by a subordinate judge of a transaction by which wakf property is mortgaged, provided he has jurisdiction over the wakf property, should not be quite as effectual as a sanction by the District Judge." 9. The decision in Baijnath v. Mohd. Ismail, 20 A.L.J. 697, was silent on the question as to which court had the jurisdiction for the grant of a sanction. It merely laid down that the Mutwalli of a trust property had no authority to grant a lease of house property for a period of more than one year without the sanction of the court and that a lease granted in the absence of the sanction conveyed no title to the transferees. In that case, however, there was no findings as to whether the alienation was for legal necessity or for the benefit of the wakf or the beneficiaries. The question, therefore, of the validity of such leases where these conditions were fulfilled, even though there was no formal sanction by the court, did not arise. 10. In 28 A.L.J. 205 the facts are not given in detail but it appears that an application was made to the District Judge for sanction with respect to certain proposed transfer of waqf property. The application was rejected by the District judge on the ground that he had no jurisdiction to entertain it. In that connection the question was posed. In 28 A.L.J. 205 the facts are not given in detail but it appears that an application was made to the District Judge for sanction with respect to certain proposed transfer of waqf property. The application was rejected by the District judge on the ground that he had no jurisdiction to entertain it. In that connection the question was posed. "Who is the officer to whom Mutwalli should go ?" and the answer given was that "the District judge is theoritically at any rate the principal court of original civil jurisdiction'. The application may, therefore, be properly made to him by the Mutwalli." In that case there was no occasion to examine the proposition that where an application for sanction was not made but the validity of the alienation was impugned in a suit in which ultimately the alienation was upheld on the ground of legal necessity or benefit to the institution, whether still a formal sanction was necessary and, if so, which competent court could exercise the power of granting such sanction. 11. In A.I.R. 1935 Allahabad 792 the validity of the execution of the mortgage by the mutwalli though without sanction of the court was upheld on the ground that in the case before the subordinate Judge the finding recorded was that the transaction was one intended to preserve the waqf property. On the satisfaction of this test it was presumed that if such permission had been sought from the District judge, he would have acted correctly in according the sanction. In other words, the criterion to be applied for upholding or striking down an alienation without sanction was as to whether in those circumstances the transaction was one which should have been sanctioned by the District judge if he had been approached in the matter or whether such sanction could have been properly refused. The principle laid down in I. L.R. 37 Calcutta 179 was adopted and followed. I have already referred to I. L.R. 37 Calcutta 179 wherein it was held that an approval by a Subordinate judge of a transaction by which waqf property was mortgaged was as effectual as a sanction by a District Judge. The principle laid down in I. L.R. 37 Calcutta 179 was adopted and followed. I have already referred to I. L.R. 37 Calcutta 179 wherein it was held that an approval by a Subordinate judge of a transaction by which waqf property was mortgaged was as effectual as a sanction by a District Judge. The same view was followed in A. I. R. 1942 Bombay 21 wherein the District judge on an appeal had acceded to the prayer for the grant of sanction on the basis that the transaction was beneficial to the institution. It was regarded as a valid sanction and the High Court also upheld that transaction. The rule was stated in those words : "The sanction can be granted even by the Assistant Judge, as the District Judge alone does not enjoy the function of a Qazi." 12. Thus, in my opinion the correct position of law is that an alienation whose validity is challenged for want of sanction of the court must be judged on the touch stone-as to whether such transaction was for legal necessity or for the benefit of the waqf or the beneficiaries. If it is so found, the other subsidiary questions are immaterial viz. as to whether the sanction was actually asked for and accorded, and if so, by the District Judge or any other civil court. If the finding about the transaction being for the benefit of the institution is recorded in a civil suit wherein its validity is impugned, it has substantially the same effect as if the transaction was made with the sanction of the appropriate court. In these circumstances, therefore, the alienation cannot be struck down as invalid and must be upheld. 13. Applying the above principle to the facts of the present case the finding which has been categorically recorded by the court below is that the deed of lease dated 8-12-1947 was for the benefit of the waqf and the beneficiaries. The property was formerly let out at Rs. 150/- per month but by the aforesaid lease the rental was enhanced to Rs. 500/-. The property was formerly let out at Rs. 150/- per month but by the aforesaid lease the rental was enhanced to Rs. 500/-. In view of the fact that the provisions of the U.P. Control of Rent and Eviction Act were operative and it was very difficult to evict a tenant and thereafter make a fresh lease and enhance the rent, the action of the Mutwalli in executing the aforesaid lease though for a comparatively long period on a rental of Rs. 500/- per month was a prudent act and beneficial to the Waqf. 14. For these reasons the transaction of lease, which was upheld by the lower appellate court, even though it was an Additional District judge and not the District judge, must be deemed to be a valid lease and capable of conferring a valid title as if the lease had been made with the sanction of the court. 15. In the result this appeal fails and is dismissed with costs.