ORDER S.U. Khan, J.
1. This writ petition has been filed by defendants. Respondent No. 4 Mohd. Shafi filed a suit against the petitioners who are wife, sons and daughters of his late brother Mohd. Yameen. One of the petitioner is minor. In this case arguments were heard on 18.7.2003 and judgment was reserved with liberty to the learned counsel to file written arguments. Learned counsel for respondent No. 4 has filed written arguments.
2. According to the case of the plaintiff/respondent No. 3 Waqf and respondent No. 4 Mohd. Shaft, the house in dispute is a double storied house constructed by the grandfather of Mohd. Shafi and his brother Mohd. Yameen, that the grandfather Sri Nanhe executed a Waqf deed in 1939 with regard to the house in dispute through which Waqf Al-ul-aulad was created. On the same day on which waqf deed was executed, son of waqif, i.e., Usman Ghani S/o Nahne executed a rent note in favour of his father Nanhe. That after the death of Usman Ghani, Mohd. Shafi, plaintiff No. 2 became mutwalli and surrendered the tenancy rights which he inherited from his father Usman Ghani, to Mohd. Yameen, hence Mohd. Yameen alone continued to be tenant. The suit was filed on the ground of default. In the oral statement, Mohd. Shaft, plaintiff No. 2/respondent No. 4 admitted that he was residing on the first floor of the house in dispute and defendants who are wife, sons and daughters of his late brother Mohd. Yameen were residing on the ground floor. In the oral statement, he also admitted that under the Waqf deed, mutwalli is entitled to reside without payment of any rent. The suit (S.C.C. Suit No. 60 of 1988) was decreed by J.S.C.C. on 23.4.1992. Revision filed against the same being Civil Revision No. 32 of 1992 has also been dismissed by Additional District Judge-IVth, Barellly through judgment and order dated 17.9.1996, hence, this writ petition.
3. Waqf deed is Annexure-1 to the writ petition. In the said Waqf deed, there is no such provision that mutwalli alone is entitled to reside in the house without paying any rent and other heirs of waqif are to pay rent if they reside therein. The only thing which is provided in the Waqf is that mutwalli will be entitled to receive 1/8 of the income as his remuneration. The only expenditure provided under the Waqf deed for charitable purpose is of Re. 1 per year which is to be paid to a religious school situate in Bareilly. In the Waqf deed, it is also provided that the mutwalli shall distribute the income of the waqf to the heirs (of waqif) according to their share under Muslim law. Money saved is money earned, hence, if instead of letting out the Waqf property to a stranger and distributing the share from the rent to the heirs of the waqif, heirs of the waqif reside in the house according to their share, it is perfectly in consonance with the waqf deed. Plaintiff admitted that he was residing at the first floor accommodation without paying any rent, hence there is nothing wrong with the residence of Mohd. Yameen brother of the plaintiff and after his death his wife, sons and daughters on the ground floor without paying any rent. According to the correct interpretation of the Waqf deed, the only duty of defendants is to pay their contribution of fifty paise per year for which plaintiff may take appropriate action.
4. Even otherwise, it has been pleaded in the plaint that Usman Ghani, father of the two brothers Mohd. Shaft and Mohd. Yameen was tenant of Nanhe, the waqif and his father. In such situation, Usman Ghani, on the death of his father Nanhe become mutawalli of property in dispute, hence his tenancy came to an end by the change of the status. Hence, there arises no question of inheritance of tenancy by any one after the death of Usman Ghani. Assuming the argument that Usman Gharri remained tenant till his death to be correct, then his tenancy devolved upon both his sons Mohd. Shafi and Mohd. Yameen. In the plaint, nothing was said with regard to this aspect. In the written argument, it has been stated that Mohd. Shafi, Plaintiff No. 2 never claimed tenancy rights in the accommodation and Mohd. Yameen remained exclusive tenant. In such situation, Mohd. Shafi cannot have any right to eject Mohd. Yameen who was joint tenant with him at the death of Usman Ghani. Surrender of tenancy by Mohd. Shafi may be deemed to have taken place later on. If one of the joint tenants becomes landlord, then the relationship of landlord and tenant cannot come into existence in between him and other joint tenant.
5. In my opinion, on the basis of the evidence adduced by the plaintiffs and case taken by them, no relationship of landlord and tenant is proved in between the plaintiffs and defendants, hence the suit was wrongly decreed by both the courts below.
6. Accordingly the writ petition is allowed. Judgment and decree passed by both the courts below are quashed. The amounts deposited by the defendants either in pursuance of interim order dated 21.4.1997 passed by this Court or prior to that must be returned to the defendant/petitioner.