1. In this case the plaint as described by the Court of first instance alleged that certain land, therein referred be was the service inam property of a mosque; that the rights of service and of managing the estate belonged be the family of the plaintiffs and of defendant 3 their father, and of defendants 4 and 5; that the defendants 3, 4 and 5 had ceased to perform service, and that the plaintiffs had rendered the service in their stead and that the defendants 1 and 2 had enjoyed, through the defendants 3, 4 and 5, a part of the profits of the share be which the plaintiffs were entitled.
2. The defendants 3, 4 and 5, members of the plaintiffs' family, did not contest the claim.
3. The defendants 1 and 2, who are Hindus, admittedly have been in possession of the land in suit since 1863 under mortgages both from defendant 3, the father of plaintiff, and from the father of defendants 4 and 5 and from defendants 4 and 5 themselves, and in 1875 purchased at a Court-sale the equity of redemption of defendant 3.
3. The plaintiffs' suit was rejected by the Court of first instance and the lower Appellate Court on the ground that) the plaintiffs' father being still alive, the plaintiffs could not claim present possession and had not shown that they have a right to the office to which the property in suit belongs.
4. In the grounds of second appeal the plaintiffs alleged, inter alia, that the lower Appellate Court had erred in holding (1) that under the Mahomedan Law the whole of the property in suit was not endowment property: (2) that having found that part of the property was endowment property it erred in rejecting the whole of the plaintiffs' claim; (3) that it erred in holding that part of the property was the private property of the defendants 8, 4 and 5. They also alleged (4th para, of the memorandum of appeal) that the lower Court ought to have held the alienations alleged by the defendants 1 and 2 were under the Mahomedan Law void: and (para. 10) that the lower Appellate Court erred in holding that the plaint wag not properly framed to entitle the plaintiffs to obtain relief, and that if there was any formal defect the plaintiffs should be allowed to amend their plaint.
5. The above being the position taken up the plaintiffs, the decrees of the lower Courts were reversed on second appeal, the judgments in which by Parsons, J., and Ranade, J., are reported at I.L.R. 24 Bom. 170. Parsons, J., held that the suit would be maintainable if regarded as one to recover trust property improperly alienated from the trust, and that as beneficiaries entitled in pursuance of the trust the plaintiffs could sue to have the alienations set aside, and the property restored to the trust, though if they desired to obtain possession themselves, they must show that they are also bolder of the office of mutawalli. It is clear that Parsons, J., regarded the suit as maintainable on this ground alone.
6. The judgment of Ranade, J., explicitly stated that if the suit is treated as one for the possession of the land it is defective and not properly maintainable in its present form, and proceeded to observe that as the lower Appellate Court had found that the lands are only partly endowed property, and the Kazi defendants 8, 4 and 5 have also beneficial interest therein, alienation to the extent of this beneficial interest might be permissible, but that it was obvious that the suit considered in this light was improperly framed and defective in its character of which para. 10 of the memorandum of appeal showed the appellants themselves to be conscious. It was solely on the ground that the principal object of the plaint was to secure a declaration that the lands were the inam property of the mosque, and as such not liable to alienation, that the suit was allowed to proceed: for it was stated if that declaration could be claimed by appellants, their inability to seek the other reliefs claimed would not defeat the main object of the suit.
7. The lower Appellate Court appears to have held that the property in dispute was not trust property in the hands of the alienors, but was practically a wage fund to which, as persons performing the required services, the alienors were entitled daring their tenure of office, and which to the extent of that limited title they could therefore alienate without committing any breach of trust and without affecting anything beyond their interests in the remuneration provided for such services. And on this ground the lower Appellate Court appears to have held that Article 134 would be inapplicable to the suit, as the property bad not been purchased from the alienors, defendants 3 to 5, as trustees, but merely as servants alienating by anticipation the wages provided for their service. This is the only meaning that I can attach to paras. 4 and 5 of the very elaborate and ingenious judgment of the lower Appellate Court. For the case of Lotlikar v. Wagle (1882) 6 Bom. 596, is cited by the lower Appellate Court as on all fours with the present case. That was a case in which the assignee of land devoted to the remuneration of service, had alienated the interest assigned to him as such remuneration, and it was held that when his service had determined, the interest of the alienee would also determine--but not before--that is to say, it might last possibly as long as the alienor lived or possibly only till he was ejected by the trustees.
8. Now no doubt a servant may dispose of his wages without effecting any alienation of any trust property from which those wages are payable. And this is referred by Ranade, J., in his remark that to the extent of such beneficial interest, alienation might be permissible. Bat then, that remark is immediately followed by the statement that if this suit be considered in this light it is obvious that it was improperly framed and defective in its character. The order of remand, therefore, did not authorise the trial of the suit as viewed in this light, but declared it for such purposes imperfectly framed and defective in character. And by that decision we are bound.
9. From the judgment of Ranade, J., it may be gathered that the grounds on which the lower Court proceeded were at least in some measure approved, so far as concerned the rejection of the suit considered as one to recover the land as in any sense private property. Thus if treated as a suit to recover a portion of a private estate, partition would be necessary and non-joinder of coparceners would be fatal. But the Lower Appellate Court having found that the land was partly endowment property, that is at least in part subject to a trust, an equally fatal objection was recognised as arising from the form of the suit, which is manifestly distinguishable from the case of Lotlikar v. Wagle for the judgment in that case speaks of the alienor as assignee of the land as remuneration from the temple authorities for his services. In the present case, on the other hand, it is not alleged that the land in suit has been assigned to the remuneration of the-plaintiff, or even that it had been assigned specifically as the remuneration of services to be performed by defendants 3, 4 and 5. And as this was left indefinite and as the share alienated by them was only a portion of that which was available as remuneration, it was dearly impossible to treat the suit as one merely for the recovery of a specific wage fund, set apart for the remuneration of the plaintiffs. For there is no allegation in the plaint that the land had been assigned to the plaintiffs by the muta walli. If the defendants 3 to 5 held the land, and alienated the land, not as trustees or muta wallis but merely as servants to whom it had been assigned as remuneration for services exigible from them, the plaintiffs, it would seem, could not claim that land as remuneration until the tenure of defendants 3 to 5 as such servants had determined. All the plaintiffs could claim would be to have the land restored to the trust. This seems to have been the view of the case taken by Parsons, J., and Ranade, J., in the judgment in Kazi Hassan v. Sagun Balkrishna (1889) 24 Bom. 170 : 1 Bom. L.R. 649. The claim was susceptible of three alternative constructions. Either the land was to be regarded as entirely private property, in which case partition with the joinder of all the parties would be necessary, or secondly if all of it were impressed with a trust, the suit could only be one for its restoration to the trust and to set aside an alienation by the defendants as trustees. Thirdly, if it were partly subject to trust and partly held for mere service, not only would it be necessary to allege specific assignment for Service, but the determination of the assignment under which the defendants 3 to 5 had held, and a re-assignment to the plaintiffs. The only' alternative in which the suit as brought would be maintainable was therefore that the land had been alienated by the trustees and not by the servants. And if that alienation by the trustees had continued for more than twelve years, there could be no doubt, as the lower appellate Court recognised, that the suit would be time-barred. The question whether the plaintiffs were mutawallis was thus immaterial. Their contention in their grounds of appeal was, as shown above, that the whole was endowment property; that no part was the private property of the defendants 3 to 5; and that the alienation by them was void. And thus they claimed not that the defendants 3 to 5 had alienated their own rights to the remuneration for service which had determined, but that the endowment property itself had been illegally alienated, as indeed the transaction impugned purports to have alienated it. In such case whether the plaintiff's claim as beneficiaries or as mutawallis their suit brought more than twelve years after the alienation is beyond time. The case of Jewan Doss Sahoo v. Shah Kubeer-ood-deen (1840) 2 M I.A. 390, which is the only one of those cited by respondents in any way appearing to support their contention to the contrary, appears to have been decided with reference to the regulations therein referred to, viz., Regulations III of 1810 and II of 1805 (vide page 423), and the mutawalli in that case was accordingly regarded as the authorised agent of Government appointed for the performance of the acknowledged duty to Government for the protection of the endowment and had, as indicated in the judgment, to collect revenue on behalf of Government. It is unnecessary here to consider whether the right of the Secretary of State would be barred under Article 149 or otherwise. As against the plaintiff or any private individual, Article 134 would be a bar to recovery of possession of the property purchased. The plaintiff does not ask to redeem plaintiff impeaches the mortgage as well as the sale as wholly void. The case of Venkatesh Prabhu v. Timmappa (1897) P.J. 146; has therefore no application. The rulings cited by the lower Appellate Court of Chintamoni Mahapatro v. Sarup (1888) 15 Cal. 703; Nilmony Singh v. Jagabandhu Roy (1896) 23 Cal. 536; Kannan v. Nilkandan (1884) 7 Mad. 337; and Behari Lal v. Muhammad Muttaki (1898) 20 All. 482; establish, as that Court fully recognised, that if the alienations were in violation of the trust, limitation would run against the trustees from the date of the alienees obtaining possession. To these may be added Gnanasambanda v. Velu Pandaram (1899) 23 Mad. 271 : 27 I.A. 69; and the case there cited of Juttendro Mohun Tagore v. Gagendro Mohun Tagore (1872) L.R. I.A Sup.. 47 : s.c. 9 Ben L.R. 377; the recent case of Dattagiri v. Dattatraya (1902) ante p. 362; and cases there cited and the case of President, &c;, of Magdalen Hospital v. Knotts (1879) 4 Ap. Cas. 324. The lower Appellate Court appears to have realised that these cases would be absolutely conclusive, but that they were quoted on the unsound hypothesis that the alienors in this case were trustees. But it appears also that the plaintiffs' vakil did not raise this point and that the hypothesis was impugned not by the learned vakil for the plaintiffs, but by the lower Appellate Court suo motu. It is, I think, always a matter for regret that a Court should select for the ground of its decision a point that has not been approached by the vakil or the counsel of the party in whose favour it is supposed to tell. For while the other side must be taken by surprise if a point not urged against him is made the ground of decision, the party in whose favour it is decided may be deprived of the benefit which he might have derived from a consideration of such arguments as he may have advanced. Id appears from, the lower Appellate Court's judgment in this case that the plaintiffs' vakil did not rely upon the point on which the lower Appellate Court considered the entire case turned, viz., that the alienors disposed of the property in question not as trustees, but as owners of the property alienated by them. If the plaintiffs had contended that the property had been alienated as their share of the remuneration for services exigible, they would have had to show not merely that they had performed those services, which it is conceivable they might have performed at the desire and on the behalf of defendants 3, 4 and 5 from whom they were exigible, but that on their undertaking the performance of those services, the land in suit could not be withheld from them as the earnings of defendants 3, 4 and 5. But the lower Courts have not decided that point and have apparently never been asked to decide it, and there is consequently no finding that the plaintiffs individually have a better right to the land or its proceeds or to any particular part of it than the defendants 3, 4 and 5 or their assignees the defendants 1 and 2. The lower Appellate Court has found that the plaintiffs have succeeded to the office of mutawalli. And that finding would no doubt have entitled them to urge a claim, if not time-barred, to rights vested in the mutawalli, that is to say, to the property in suit as trust property. But as the lower Appellate Court has found the property is not trust property at all, but only the earnings of defendants 3 to 5, entitled as servants and not as mutawallis, the plaintiffs could not succeed without proving that the right. Of those defendants to the property so viewed has determined. And though their right to the office of mutawalli may have fallen by abandonment, and resignation, if the property was not vested in them as mutawallis in trust but, as the lower Appellate Court held, as persons holding in their own right absolutely, their vacation of the office of mutawalli would not show that such absolute right had ceased to exist and had been transferred to the plaintiffs. The lower Appellate Court appears to have held that the land was held as inam for services, and refers to a sanad of 1895 as showing that it has always been so regarded. Apart from the question whether a sanad granted in 1895, apparently just before suit, could retroact on transactions effected in 1863 and 1875, or change the title of the alienors in the past, it is difficult to see bow the plaintiffs could claim the restoration of the land as inam before the particular estate assumed to vest in successive life-holders had determined. It is not and cannot be contended that the office of peshnimaz falls within the definition of a hereditary office under Bombay Act III of 1874, which relates to offices for the performance of duties connected with matters of civil administration. The question whether if held free from the trust as service inam the land tenure was one of successive life estates is one which it is not necessary in this appeal to determine or to consider. No authority has been cited to show that if the land is held free from a trust on condition of service, and as such alienated by the holders for the time being other members of the family merely because they were suffered to perform the service in lieu of the alienors, would have the right to recover from the alienees. The only ground on which the plaintiff's could have succeeded in the suit as framed was, as already pointed out, that the property was trust property improperly alienated by the trustees, and liable as such to be restored to the trust. And the lower Appellate Court having found that the alienees have been in possession by the purchase for far more than twelve years, the suit as one for the purpose of restoring the property to the trust, must necessarily fail as barred by Article 134 of the Limitation Act. I therefore think that the decree of the lower Appellate Court must be reversed and the suit must be dismissed with costs. By consent of the parties the judgment of my learned colleague has been delivered by me on his behalf, he having vacated his seat on the Bench shortly after the hearing of the appeal and before this judgment was ripe for delivery.
10. About 50 years ago a certain thikan was held, as to one moiety by one Kaji Abdul Rajak and as to the other by one Kaji Ali and one Kaji Mohidin. This thikan seems to have consisted of three pieces of land which had apparently been granted in 1641 and confirmed by a firman registered in 1334 to the ancestors of the above named three persons. One of the pieces of land in respect of a moiety of which this suit is brought was described in the firman as being set apart for the lighting of a mosque to which another of the pieces of land was also dedicated. It is to my mind clear that as to the piece of land now in dispute the grantees were trustees to receive the income of the land and to apply it in or towards the lighting of the mosque, and the fact that after providing sufficiently for the carrying out of that purpose there might be a surplus left which the grantees, not unlawfully, might apply to their own use for services rendered by them in that behalf does not make them any the less trustees. It was argued that although they might be trustees yet the interest of each successive generation was only a life-interest. A life estate, however, is unknown to Mahomedau Law. The Hedaya lays down in Volume III, Book xxx, Chap. 2, page 489 of Grady's Edition, that an amree or life grant 'is nothing but a gift and a condition; and the condition is invalid; but a gift is not rendered void by involving an invalid condition'; consequently the donee, with a life condition added to the gift, becomes the absolute owner. This principle is recognized by the Privy Council as law in Mussamut Humeeda v. Mussamut Budlan (1872) 17 Cal. W.R. 525, which WBB followed in Abdul Gafur v. Nizamudin (1892) L.R. 19 IndAp. 178 : 17 Bom. 1 affirming the decision in Nizamudin v. Abdul Gafur (1888) 13 Bom. 264. Therefore the grantees did not hold the property by a aeries of life estates. In fact, the firman itself seems to treat them as the owners of the land and, except as to the office of peshnimaz which was provided for by a separate royal grant, not as mere mukhtyars managing the property on behalf of the grantor according to the terms imposed by him. This distinguishes it from the case of Jewun Doss v. Shah Kubeer-ood-deen (1840) 2 M I.A. 390, the firman in which case to be found at page 419, distinctly showing that the grantee was only to be in occupation of the lands granted in order to apply their produce as directed therein, in fact, that he was not one owner of the lands, and had not the legal estate in himself, but was merely a mukhtyar, and that in the event of his heirs being in possession of the lands under the firman, they would be in possession merely as mukhtyars for the time being. In the present case there is a grant of three pieces of land to the grantee as inamdar, and to my mind as full owner of the legal estate, one piece being described for the mosque, another for -lighting of the mosque, and the third being unfettered by any trust or condition. Consequently I am of opinion that this is not a wakf strictly so called with the quality of absolute inalienability attached to the lands, but that the grantees were in the position of ordinary trustees. If the grantees be ordinary trustees, then Article 134 of Act XV of 1877 applies, and as the defendants have bean in possession under their mortgage more than twelve years, the plaintiff's suit would be barred. The respondents-plaintiffs relied upon the case of Trimbak v. Narayan (1882) 7 Bom. 188 which was, however, disapproved of in Ganansambanda v. Velu Pandaram (1899) L.R. 27 IndAp 78, and I do not therefore consider that it affords any guide to the Court in the present case. There is, however, a recent case of Dattagiri v. Dattatraya (1902) 4 L.R. 743, which seems to me to be on all fours with this case, and, after taking into consideration all the authorities and arguments brought to the notice of the Court, I am of opinion that the plaintiffs' suit is barred and the decree of the lower Court must be reversed with costs and the decree of the Subordinate Judge restored.