1. In consequence of the difference of opinion between Heaton and Hayward JJ. who heard this appeal, it has been referred to me under Section 98 of the Code of Civil Procedure in accordance with the conclusion arrived at by the Full Bench in Bhuta Jayatsing v. Lakadu Dhansing(4) as to the procedure to be followed in such cases.
2. The points of law upon which they differ have been stated thus: ' (1) Is it to be taken as implied by the pleadings in the case that the plaintiff's predecessor-in-title became the holder of the lands by a lawful alienation (2) If not, then aa a matter of law does the Sanad imply the following condition : that if the lands cease to be the endowment property of the mosque otherwise than by a lawful alienation, the Government may levy the full assessment on the lands '
3. As to the first question it is not disputed before me, and both the differing judgments proceed on the hypothesis that for the purpose of this suit the plaintiff must be taken to have acquired a lawful title to the laud in suit, quite apart from the question whether the original alienation in favour of the ancestor of the plaintiff's predecessor-in-title was lawful or not. I am not concerned in this litigation with the question whether the manager of the mosque has now any right to the land in suit against the plaintiff: and I express no opinion whatever on that question. The plaintiff must be taken in this suit to have acquired a lawful title to the land. The question, whether the original alienation in favour of the ancestor of Punjabhai, who mortgaged the land in 1897 and subsequently sold it in 1906 to the present plaintiff, was lawful or not stands on a different footing. The plaint refers to this alienation in favour of Punjabhai's ancestor more than sixty years ago : and in the written statement it is pleaded that the land in suit is Devasthan land and the plaintiff and his predecessor-in-title have purchased it with knowledge of the nature of the land and the consequent liability of the grantee to apply the income to religious purposes. It is difficult to say that the defendant questioned the validity of the alienation referred to in the plaint; and it is urged for the appellant that the defendant did not care to put the plaintiff to the proof of the propriety and validity of an alienation, which took place many years ago. it is urged that the existence of a local custom in the District of Broach in favour of an alienation of wakf property is recognize 1 by Westropp C. J. in Abas Alli v. Gulam Muhammad (1863)1 B.H.C.R. 36 and that in Narayan v. Chintaman(1867)4 B.H.C.R. (A.C.J.) 1, the learned Chief Justice, while referring to the inalienability of religious endowments, whether Hindu or Mahomedan, recognises certain exceptions including the exception based on the local custom referred to. Further it cannot be said that according to Mahomedan law the wakf property can never be validly alienated. Under these circumstances I think' that on the pleadings the alienation in favour of Punjabhai's ancestor may be properly taken to be lawful. This point, however, has no practical importance, having regard to the view, which I take of the second question : and I should hesitate to base my decision on such an implication from the pleadings. If the ultimate decision depended in any way on this point, I might have considered the suggestion that in the interests of justice it would be proper to send down an issue on the point, to allow the parties an opportunity of adducing evidence thereon, and to decide the question on proper materials instead of basing an inference in favour of the plaintiff on the pleadings.
4. Assuming, however, that the alienation in favour of the plaintiff's predecessor-in-title was unlawful, as the second question assumes, is the defendant entitled to levy full assessments the land '. The answer to this question depends upon the construction of the Sanad. The Sanad was issued in 1879 to the manager of the mosque. The land in suit was brought under the Summary Settlement authorised by Act VII of 1863. After reciting that fact the Sanad provides ' that the said land subject (in addition to Salami or other payments which may have been hitherto levied ) to the payment to Government of an annual quit-rent of Rs. 17-8-0 only shall be continued forever by the British Government as the endowment property of the Jooma Masjid at Amod without increase of the said quit-rent, but on the condition that the managers thereof shall continue to be loyal and faithful subjects of the British Government.' It is not suggested in the present case that the condition that the managers of the mosque shall continue to be faithful and loyal subjects of the British Government is not fulfilled.
5. The right to levy the full assessment is claimed for the Government on the ground that the land has ceased to be the property of the mosque. It is contended that the condition that the grant shall continue only so long as the land shall continue to be the property of the mosque is implied by the terms of the Sanad and that the absence of the words ' heirs and assigns ' is consistent only with that view. The learned Government Pleader contended that even if the original alienation by the manager in favour of Punjabhai's ancestor were lawful the Government would still have the right to resume the grant in case the land ceased to be the property of the mosque. For the plaintiff it is urged that the Sanad is in the usual form adopted in the case of a settlement relating to any religious endowment, that the absence of the words ' heirs and assigns' is not inappropriate in such a case, and that according to the provisions and the scheme of the Summary Settlement Act ( Bombay Act VII of 1863), which applies to the present settlement, and according to the terms of the Sanad no such condition as is suggested by the defendant can be implied. It is urged that so long as the quit-rent is paid and so long as the managers continue to be faithful and loyal subjects, the Government have agreed to continue the land in perpetuity as the endowment property, whether it continues to be the property of the mosque or is transferred validly or invalidly to third parties.
6. After a careful consideration of the arguments urged on both sides, I am of opinion that no such condition as is stated in the question is implied by the terms of the Sanad* and that the Government have no right to levy the full assessment, as they have done. In the first place the land is expressly brought under the Summary Settlement authorised by Bombay Act VII of 1863. This indicates to my mind that the nature of the settlement is such as is authorised by Section 2 of the Act. The section is general and would apply to all lands, including the endowment lands. The Sanad does not in terms refer to Section 2; but the expression Summary Settlement authorised by Act VII of 1863 can properly refer only to such settlement as is authorised by the section.
7. It is contended by the Government Pleader that the Sanad may be the result of an inquiry and a decision contemplated by the Act and he refers to Sections 14, 19, 20, 21 and 22 of the Act. In the first place the record of the case does not disclose any basis for the suggestion that there was a decision and that the Sanad was based upon such a decision. Secondly, it is contrary to the terms of the Sanad, as ordinarily the settlement based upon an inquiry and a decision would not be the summary settlement authorised by the Act. It would be a settlement which would represent the terms of the old grant, based upon the proof of such grant.
8. Further, the words of grant in the Sanad read in their plain and natural sense show that so far as the Government are concerned, the property shall forever be continued as the endowment property of the mosque. It would not be reasonable to imply such a condition as is now suggested by the Government from these words. If the Government wanted to impose such a condition it should have been stated, instead of leaving it to be implied in this manner. I do not think that it could be implied without unduly straining the words or without reading words in the Sanad which are not there. The infirmity of this contention is exposed, in my opinion, by the fact that it necessarily involves the result that the Government could levy full assessment, even if the property be alienated by the managers of the mosque for a proper purpose in a proper manner. No doubt the Government Pleader has contended that that is the true view. But I feel sure from the judgment of Mr. Justice Heaton that he would disallow such a contention, for he observes that if the plaintiff were a proper and lawful alienee of the endowment lands he would have an irresistible case. Therefore it is that the point of difference has been limited to a case where the property ceases to be endowment property otherwise than by a lawful alienation. I have no hesitation in disallowing the contention that under the terms of the Sanad the Government have the right to resume the grant or to levy full assessment when the property is validly and properly alienated by the managers of the mosque. This affords a reason for not importing such a condition in the Sanad at all even when the property ceases to be the endowment property otherwise than by a lawful alienation.
9. The omission of the words ' heirs and assigns' does not present any insuperable difficulty to my mind. In the case of endowment lands these words are probably considered unnecessary or inappropriate, when the nature of the settlement is indicated in clear words by reference to Act VII of 1863. But whatever the reason of the omission may be, I do not think that the omission can justify the importing of a condition, which is not expressed, and which seems to be inconsistent with the provisions of the Act.
10. The purpose of the Act is clearly stated in the preamble and Sections 2 authorizes the continuance in perpetuity of the land to the holders, their heirs and assigns, upon certain terms and conditions. Section 6 provides that the property shall be heritable and transferable : it may be that in virtue of the special limitations of the particular holder it may not be heritable or transferable in the ordinary sense : but so far as the Government are concerned, it would be heritable and transferable. Section 7 provides also that any settlement made by the Governor-in-Council with the holder of any land will be binding upon the rightful owner, his heirs and assigns whoever such rightful owner may be. These provisions apply to the Summary Settlement authorised by the Act, and in my opinion they apply even when the settlement is in respect of the endowment lands. The importing of the condition now suggested would be inconsistent with these provisions. This view is also supported by the omission in Act VII of 1863 of the provisions corresponding to Sections 38, Clause 2, of Reg. XVII of 1827, and Section. 8 of Bombay Act II of 1863. Act VII of '1863 which repealed Sections 38 of the Regulation of 1827, and Act II of 1863 were passed about the same time. Both the Acts have been framed with similar objects in view and the absence of any provision in Act VII of 1863 corresponding to Section. 8 of Act II of 1863 is not without significance. In Krishnarav Ganesh v. Rangrav (1867) 4 B.H.C.R. (A.C. J.) 1. Westropp C. J. observes with reference to this omission as follows :-' That Bombay Act VII of 1863 contains no similar provision, may possibly be due to the fact that in some few places in the territories to which it applies, e. g., Broach and Surat, it seems that by local custom, contrary to the general law, lands held for Mahomedan religious purposes have been treated as alienable'.
12. The provisions of the Act, which must be taken to govern the settlement in question, and the terms of the Sanad point to the conclusion that the condition that the land must continue to be the property of the mosque in order that the holder for the time being may have the benefit of the exemption from assessment allowed by the Sanad cannot be implied, and that the Government do not get any right under the Sanad to levy the full assessment even when the property ceases to be the endowment property otherwise than by a lawful alienation.
13. The argument that the Government could not have intended to continue the grant even when the purpose of the grant is defeated has no force in view of the provisions of the Act. In every case the purpose of the grant is defeated in a sense, when a trespasser becomes the holder by adverse possession and deprives the rightful holder of his property. In the case of the endowment property the purpose is more glaringly defeated when a stranger comes in otherwise than by a lawful alienation. The true view seems to me to be that when any land is brought under the Summary Settlement authorised by Act VII of 1863, the right of the Government to the quit-rent fixed in the Sanad in accordance with the provisions of the Act, and the right of the lawful holder for the time-being to the exemption allowed under the Summary Settlement are fixed in perpetuity subject of course to the conditions expressly mentioned in the Sanad, without any reference to the question whether the land continues to be the property of the original grantee or not. It is for the manager of the religious institution to take care of the endowment property as it is for an individual to take care of his private property; and the negligence, or the misconduct of the manager, cannot benefit the Government under the provisions of the Act and the terms of the Sanad.
14. I, therefore, agree with my brother Hayward on the second question.
15. The result is that the decree of the lower Court is reversed, and there will be a decree for the plaintiff for Rs. 33-12-0 with costs throughout on the defendant.