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Hamidmiya SarfuddIn Vs. Nagindas Jivanji - Court Judgment

LegalCrystal Citation
SubjectProperty;Trusts and Societies
CourtMumbai
Decided On
Case NumberFirst Appeals Nos. 434 and 435 of 1926
Judge
Reported inAIR1933Bom217; (1933)35BOMLR252
AppellantHamidmiya Sarfuddin
RespondentNagindas Jivanji
Excerpt:
indian limitation act (ix of 1908), articles 134, 144-wakf property-mutawalli-mortgage-sale-suit to set aside alienations-period of limitation-commencement of the period-adverse possession-wrong-doers' possession-tacking of adverse possession,;a mutawalli unauthorizedly mortgaged portions of wakf properties to several persons, he was dismissed from his office in 1910. even then ha effected similar fresh mortgages on the portions of the properties in 1910, 1912 and 1916 in favour of other persons in order to pay off prior mortgages. in 1918 he similarly sold another portion of the properties, and applied rs. 4,000 out of the consideration money to the purposes of the wakf. a suit having been filed in 1924 to set aside the unauthorized alienations :-;(1) (1921) l.r. 48 i.a. 302: s.c. 24.....patkar, j.1. these appeals arise out of suits nos. 588 of 1924 and 587 of 1924. suit no. 588 of 1924 relates to two mortgages, (1) exhibit 160, dated october 31, 1912, in favour of defendants nos. 1, 2 and 3 for rs. 15,000 passed by defendant no. 4, the mutawalli of the properties attached to the juma masjid and the dargas of nasiruddin and abdul hamid situated at navsari, and (2) exhibit 159, dated march 17, 1910, in favour of defendant no. 1 and father of defendants nos. 2 and 3 passed by defendant no. 4 for rs. 1,500. the companion suit no. 587 of 1924 relates to a sale-deed dated july 31, 1918, for rs. 6,845, exhibit 124, passed by defendant no. 4 and his mother.2. the plaintiff is now appointed a mutawalli of the wakf property and plaintiffs nos. 2 and 3 are the trustees of the.....
Judgment:

Patkar, J.

1. These appeals arise out of suits Nos. 588 of 1924 and 587 of 1924. Suit No. 588 of 1924 relates to two mortgages, (1) Exhibit 160, dated October 31, 1912, in favour of defendants Nos. 1, 2 and 3 for Rs. 15,000 passed by defendant No. 4, the Mutawalli of the properties attached to the Juma Masjid and the dargas of Nasiruddin and Abdul Hamid situated at Navsari, and (2) Exhibit 159, dated March 17, 1910, in favour of defendant No. 1 and father of defendants Nos. 2 and 3 passed by defendant No. 4 for Rs. 1,500. The companion suit No. 587 of 1924 relates to a sale-deed dated July 31, 1918, for Rs. 6,845, Exhibit 124, passed by defendant No. 4 and his mother.

2. The plaintiff is now appointed a Mutawalli of the wakf property and plaintiffs Nos. 2 and 3 are the trustees of the mosque in the Baroda territory to which the wakf relates. Defendants Nos. 1 to 3 are the mortgagees under the mortgage-deeds, Exhibits 159 and 160 in suit No. 588, and defendant No. 8 is another mortgagee of the equity of redemption under Exhibit 161, dated September 28, 1916. The companion suit relates to the sale-deed passed in favour of the alienee. Both the suits are for recovery of possession of the property described in the plaints, and for redemption of the mortgages if they are held binding on the wakf property. The Masjid and the dargas are situate at Navsari in the Baroda territory outside British India. The lands in suit relating to the wakf are situated at Mogar in the District of Surat, in Jalalpur taluka.

3. The defendants contended that they are bona fide purchasers for value and the suit was barred by limitation.

4. The learned Subordinate Judge held that the wakf was proved and that the properties in suit related to the wakf, and the mortgages were invalid but Its. 4,000 out of the consideration for the sale-deed was for a necessary purpose, but he held that as the Mutawalli defendant No. 4 was removed from office by the Baroda Government in 1910 the suits were barred by limitation.

5. On appeal it is contended on behalf of the appellants that the view of the lower Court on the point of limitation is erroneous. The respondents contended that the finding, that the suit properties were wakf and that the alienations were invalid, was erroneous and also relied on the plea of limitation.

6. The questions, therefore, arising in the appeals are (1) whether the finding of the lower Court that the properties in suit related to wakf is correct and whether the alienations are invalid, and (2) if so, whether the alienees acquired title by adverse possession. The learned Subordinate Judge held that the mortgages, Exhibits, 159, 169 and 161, were invalid as they were not for a necessary purpose, but the sale in the companion suit, Exhibit 124, was valid to the extent of Rs. 4,000 borrowed for the purposes of the wakf. The sale-deed is within twelve years before suit; the mortgage, Exhibit 159 of 1910, is beyond twelve years before suit and the mortgages, Exhibits 160 and 161, are within twelve years before suit which was filed on September 27, 1924.

7. The first question arising in the case is whether there was a proper dedication to the wakf and whether the properties in suit related to the wakf.

8. [The judgment then discussed questions of fact]. It appears clear from these facts that the properties in suit were agreed by the descendants of the original grantees to be dedicated to the wakf, i. e., the Masjid and the dargas, and that defendant No. 4's father was appointed Sajjadanashin and Mutawalli of the wakf property situate at Mogar. I, therefore, agree with the view of the lower Court that the wakf to the Masjid and the dargas situate at Navsari in respect of the land in suit is clearly proved,

9. I shall now deal with the several alienations with which we are concerned in this appeal and also the previous alienations connected, with the alienations in suit.

10. 452 1/2 bighas of which a sanad was given in favour of the father of defendant No. 4 by Exhibit 46 related to the wakf It appears that the father of defendant No. 4 concealed the fact that the land related to the wakf when he obtained the sanad in his name, and as the grant to the wakf was not made by the British Government or by any former Government but was a result of an agreement between the descendants of the original grantees, the sanad, Exhibit 46, appears to have been made in the name of the father of defendant No. 4. It is clear, however, from the evidence that these lands at Mogar related to the wakf. The 452 1/2 bighas consisted of three parts, (1) 3971/2 bighas ; (2) 33 1/2 bighas ; and(3)241/2 bighas.

11. I shall deal with the alienations in respect of the first portion of the land consisting of 397 1/2 bighas. The first document is Exhibit 128 dated August 16, 1892, for Rs. 11,000. It refers to a previous mortgage of 1881-82 in favour of Shah Nagindas Jivan, manager of the shop of Shah Jivan Pragji. The money is said to have been borrowed for satisfaction of Rs. 8,000 on the previous mortgage of 1881-82 and Rs. 2,890 to redeem the Navsari house and Rs. 110 for stamp. It does not appear that any portion of the amount was borrowed for the purposes of the Masjid or the wakf. The mortgage was in favour of Jivan Pragji, the father of defendant No. 1. The next mortgage in regard to the same plot of land is Exhibit 157 for Rs. 13,000 on November 12, 1900. The consideration is for payment of Rs. 12,600 on account of the previous mortgage, Exhibit 128, and Rs. 400 in cash. It is passed in favour of the same mortgagee Nagindas Jivanji, defendant No. 1, by the father of defendant No. 4. The next mortgage is Exhibit 156 dated June 6, 1905, in favour of defendant No. 1 for Rs. 2,200 by way of a further charge. The amount is said to have been taken to pay off a mortgage in favour of another person Panubhai Anupram and for payment of other creditors. There is no recital that the amount was borrowed for the purposes of the Masjid or the dargas. The property in Exhibits 156 and 157 is 391 and odd bighas out of the 397 1/2 bighas comprised in the mortgage Exhibit 128. The next mortgage is Exhibit 158 by defendant No. 4 of October 20, 1906, after the death of his father Nanumiya in 1901 for Rs. 15,000 in favour of one Nemchand Fakirchand who was related to defendant No. 1 by marriage being his Vewai. Rs. 15,000 were borrowed for paying off the previous mortgages in favour of defendant No. 1, Exhibits 157 and 156. The document, Exhibit 158, is dated October 20, 1906, and was registered on October 27, 1906, and the amount was paid off on October 27, 1906, to defendant No. 1. The mortgages, Exhibits 156 and 157, bear endorsements of payment dated October 27, 1906. The next mortgage is Exhibit 160 dated October 31, 1912, in favour of defendant No. 1 Nagindas Jivanji and as guardian of his minor nephews defendants Nos. 2 and 3 for Rs. 15,000. The amount is borrowed for paying the mortgage, Exhibit 158, in favour of Nemchand. The document, Exhibit 158, bears an endorsement of payment dated October 31, 1912. Exhibit 160 dated October 31, 1912, for Rs. 15,000 in favour of defendant No. 1 and defendants Nos. 2 and 3 is one of the mortgages, the subject-matter of suit No. 588. It is within twelve years of the institution of the suit. The next mortgage is Exhibit 161 dated September 28, 1916, under which the equity of redemption is mortgaged to defendant No. 8 for Rs. 5,999. It is within twelve years of the institution of the suit and forms the subject-matter of suit No. 588. The consideration is stated to be for payment of the debt and for the expenses of the litigation in the Mulki Khata at Baroda.

12. The second portion of the land relating to the wakf consists of 331/3 bighas and I shall, deal with the alienations relating to that portion. The first alienation is a mortgage, Exhibit 126, passed by the father of defendant No. 4 on June 10, 1865, for Rs. 4,000 in favour of Vallabh Lallu and Prag Khushal. The next mortgage is Exhibit 125 dated May 28, 1898, by the father of defendant No. 4 in favour of Umedram Occhavram for Rs. 4500. The amount was borrowed to pay off the mortgage in favour of Vallabh Lallu, Exhibit 126. Exhibit 126 bears an endorsement of payment dated May 28, 1898. The last alienation in respect of this portion of the wakf land is Exhibit 124, the sale-deed passed on July 31, 1918, in favour of the defendants in the companion suit No. 587 by defendant No. 4 and his mother after the death of his father for Rs. 6,845. The previous mortgage in favour of Umedram Occhavram, Exhibit 125, was satisfied out of the consideration money received from the defendants in suit No. 587. The mortgage, Exhibit 125, bears an endorsement of satisfaction dated August 2, 1918.

13. The third portion of the wakf land of Mogar consists of the 24 1/2 bighas which was mortgaged on March 17, 1910, by Exhibit 159 in favour of defendant No. 1 and the father of defendants NOR 2 and 3 by defendant No. 4 for Rs. 1,500.

14. All the three pieces, which I have referred to, namely, 397 1/2 bighas, 33 1/2 bighas and 24 1/2 bighas with slight variations in the area make up 452 1/2 bighas comprised in the sanad, Exhibit 46, and relate to the wakf. We are concerned in suit No. 588 with the three mortgages, Exhibit 159 dated March 17, 1910, with regard to 24 1/2 bighas; and Exhibit 160 and Exhibit 161 in respect of 391 and odd out of 3971/2 bighas, Exhibit 160 dated October 31, 1912, in favour of defendant No. 1 and his nephews defendants Nos. 2 and 3, and Exhibit 161 dated September 28, 1916, the mortgage of the equity of redemption in favour of 'defendant No. 8. Suit No. 588 is, therefore, concerned with the three mortgages, Exhibits 159, 160 and 161, Exhibit 159 being more than twelve years before suit, and Exhibits 160 and 161, being within twelve years before suit, and in suit No. 587 we are concerned with the sale-deed, in respect of 241/2 bighas, Exhibit 124, dated July 31, 1918, which is within twelve years before the institution of the suit.

15. It is not necessary to go into the question whether the Mutawallis could validly mortgage wakf property on the strength of a local custom in Broach and Surat districts as held in Abas Alii v. Ghulam Muhammad (1863) 1 B.H.C.R. 36 and Krishnarav Ganesh v. Rangrav (1867) 4 B.H.C.R. 1 No such local custom has been alleged or proved in this case. I may refer in this connection to the case of Narayan v. Chintaman and Moreshwar I.L.R. (1881) Bom. 393 It is also suggested that the attestation of the Kazi on some of the mortgages would validate the mortgages, but it does not appear whether the attestor signed in his capacity of a Kazi. Mere attestation cannot necessarily import knowledge of the contents of the document much less can it amount to a sanction of the alienation.

16. The learned Subordinate Judge held that the mortgages, Exhibits 159, 169 and 161, were not effected for necessary purposes binding on the wakf and that out of the consideration for the sale-deed of Exhibit 124 Rs. 4,000 were borrowed in 1865 for a purpose which was binding on the religious institution. The learned Subordinate Judge held that the suit was not barred under Article 134 of the Indian Limitation Act as defendant No. 4 or his father was not a trustee in whom the estate was vested and that the suit was not barred under Article 144 of the Indian Limitation Act because the several mortgagees, being trespassers, could not tack on their possession to each other and there was no continuous adverse possession for more than twelve years, but held that the suit was barred by limitation on the ground that defendant No. 4 was removed from the Mutawalliship in the year 1910 by the Baroda Government by order of the Subha and his possession was adverse for more than twelve years, and therefore both the suits were barred by limitation as they were not brought within twelve years from the date when defendant No. 4 was removed from his Mutawalliship by the Baroda Government. It appears from the partition-decree, Exhibit 101 of 1829, that the lands in suit were set apart for the purpose of the Khanka and for the Masjid and the dargas of the two Maleks, and that defendant No. 4 was Sajada or Sajjadanashin and also Mutawalli. There is no evidence of maintenance of a Khanka in the Surat District or in the Baroda territory. There is clear evidence as to the existence of a Masjid and dargas at Navsari and the lands having been set apart for their use. Though a Khanka may be in existence at the time of the partition-deed, there is no clear evidence on the record to show that the Khanka was continued in recent times. Defendant No. 4's grandfather and his father and afterwards defendant No. 4 were Sajjadanashin of the Khanka and also Mutawallis of the wakf properties. In Muhammad Hamid v. Mian Mahmud after referring to the case of Vidya Varuthi Thirtha v. Balusami Ayyar it was held that a Sajjadanashin had a larger right in. the surplus income than the Mutawalli, but it did not mean that the whole income from the Khanka was at the disposal of the Sajjadanashin. In the present case there is no clear evidence of any maintenance of a Khanka. A Khanka is a monastery or religious institution where dervishes and other seekers after truth congregate for religious instruction and devotional exercises. The Khanka is usually under the governance of the Sajjadanashin (one seated on the prayer mat), who not only acts as the Mutawalli (or manager) of the institution and the adjoining mosque but also is a spiritual preceptor of the adherents. The origin and history of the shrines and dargas and the duties and functions of Sajjadanashin and Mutawalli have been described in the decisions in the cases of Zooleka Bibi v. Syed Zunul (1904) 6 Bom. L.R. 1058 and Piran v. Abdool Karim I.L.R. (1891) Cal. 203 approved by the Privy Council in Vidya Varuthi Thirtha v. Balusami Ayyar

17. In Vidya Varuthi Thirtha v. Balusami Ayyar it was held that the endowments of a Hindu Math are not conveyed in trust nor is the head of the Math a trustee with regard to them, save as to specific property proved to have been vested in him for a specific object, and that Article 134 of the Indian Limitation Act would not apply, and that the same rule applies to the endowments of Mahomedan religious institutions and to alienations made by the Sajjadanashin or Mutawalli.

18. There is no specific trust in this case, nor is it proved that any specific property was vested in defendant No. 4:s grandfather for a specific object, and therefore, Article 184 of the Indian Limitation Act would not apply. The Article, therefore, applicable to the present case is Article 144 of the Indian Limitation Act.

19. The learned Subordinate Judge held that the different alienees were distinct trespassers, and the possession of the previous mortgagees could not be tacked. Under Article 144 of the Indian Limitation Act the starting point for limitation is the date from which the defendant's possession becomes adverse and according to the definition of 'defendant' in the Indian Limitation Act 'defendant' includes a person from whom the defendant claims. The distinct trespassers could not be said to claim through each other, and therefore the possession of the distinct trespassers could not be tacked on in order to constitute adverse possession. The defendant, therefore, cannot take advantage of the possession of others before him unless they are persons from whom he derives his title. See Ramchandra Balwant v. Balaji Ganesh I.L.R. (1920) Bom. 570: 22 Bom. L.R. 1452 and Kumar Basanta Roy v. Secretary of State for India

20. It is urged on behalf of the appellants relying on the decision in the case of Ramayya v. Kotamma I.L.R. (1921) Mad. 370 that adverse enjoyment of immoveable property for over twelve years, whether by a single person or by several persons in succession, even though they do not claim from one another, provided it is continuous and without a break, bars the true owner under Article 142 of the Indian Limitation Act. It appears from the evidence in the case that the mortgages effected by defendant No. 4's father were redeemed by him and subsequent mortgages were effected. Similarly defendant No. 4 redeemed the previous mortgages and effected subsequent alienations and paid off the previous mortgages. It was held in the case of Mohesh Lal v. Mohunt Bawan Das that it must be presumed, in the absence of an express intention to the contrary, that when one, claiming to be owner of an estate, borrows money to pay off a mortgage, there being no intermediate incumbrance, he intends to extinguish it, and it was observed at page 71 as follows :-

Although the money was paid by the Plaintiffs' gumasta to Luchmi Narain's estate, it was paid with money borrowed from the Plaintiff by Mungal, and for which Mungal was liable to him, The mortgage was therefore paid off by Mungal, and not by the Plaintiff.

21. It is clear, therefore, having regard to the evidence in the present case, that the previous incumbrances were paid off by the then Mutawalli by borrowing money on subsequent mortgages, and the previous mortgages were extinguished, and therefore, it cannot be said that there were several trespassers in succession continuously and without a break for more than twelve years. It is, therefore, unnecessary to examine the cases of Agency Company v. Short (1888) 13 App. Cas. 793 and Willis v. Earl Howe [1893] 2 Ch. 545 on which the decision in Ramayya v. Kotamma I.L.R. (1921) Mad. 370 is based, I think that Article 142 does not apply to the facts of the present case.

22. As defendant No. 4 was a Mutawalli, i, e., manager, of the religious institution and was not a person in whom the property has vested in trust, it would follow, according to the decision in Vidya Varuthi Thirtha v. Balusami Ayyar, that the Article applicable is not Article 134 but Article 144 of the Indian Limitation Act,

23. The learned Subordinate Judge held that the possession of defendant No. 4 after 1910, the date of the decision of the Subha at Navsari, was adverse, and the suit not having been brought within twelve years from the decision of the Subha on January 8, 1910, the claim is barred by limitation. The learned Judge at one place stated that the suit was not barred by Article 144 of the Indian Limitation Act and at another place held that it was barred by Article 144 of the Indian Limitation Act. A I understand the reasoning of the learned Subordinate Judge, he was of opinion that the suit was not barred under Article 144 by adverse possession on the part of the alienees but was barred by adverse possession of defendant No. 4 after he was removed from office on January 8, 1910. It is difficult to support the reasoning of the learned Subordinate Judge on this point. Under Exhibit 130 defendant No. 4 was not removed from his position. The order gave him locus paenitentia and if he passed a kabulayat he was to be restored to possession, otherwise plaintiff No. 1 was to pass a kabulayat and take possession of the property. The order of the Huzur, Exhibit 133, was passed on June 16, 1913, and it appears from the facts which I have already mentioned, that defendant No. 4 applied to the Subha by Exhibit 119 and agreed to accept the management and did not set up any adverse claim and admitted that he was a Mutawalli from his ancestors. The Subha allowed him to continue in possession till August 4, 1916, when he was finally removed, and plaintiff No. 1 was put in possession in 1917. Even assuming that defendant No. 4's adverse possession commenced from 1910 by the order of the Subha, there was a break in the adverse possession as he passed a kabulayat and admitted the title of the mosque and was allowed to continue in possession from 1915 to 1916 and afterwards the possession was given to plaintiff No. 1. I think, however, that the Baroda order did not, and was not intended to, affect the property in Mogar in British India. Subsequently proceedings were taken in respect of the properties in suit No. 19 of 1919 before the District Judge of Surat and defendant No. 4 was removed from office on December 14, 1920, by Exhibit 63, and the order was confirmed by the High Court by Exhibit 64 on November 7, 1922, Therefore, so far as the property in suit situate at Mogar in British India is concerned, it cannot be held that defendant No. 4 was removed from his office before 1920 and the suit was brought soon afterwards in 1924. The reasoning of the learned Judge, therefore, on this point cannot, in my opinion, be accepted.

24. The next question is whether the claim of the religious institution is barred by adverse possession of the alienees. It is contended on behalf of the appellants that the claim is not barred by adverse possession on the ground that defendant No. 4 was removed from office so far as Mogar property was concerned in 1920 and the suit is brought within twelve years from that date, and reliance has been placed on the decision in the case of Vidya Varuthi Tirtha v. Balusami Ayyar. On the other hand, it is contended that adverse possession commenced not from the removal from the office of Mutawalli or from his death, but from the date of the alienation and reliance is placed on the decision in the case of Damodar Das v. Lakhan Das

25. By Act I of 1929, Section 10 of the Indian Limitation Act has been amended and new Articles 48B, 134A, 134B and 1340 have been enacted, but the present case is governed by the Indian Limitation Act before it was so amended.

26. Article 144 was applied in the alternative in the case of a sale by a hereditary manager of a religious foundation in the case of Gnanasambanda Pandara Sannadhi v. Velu Pandaram which related to a sale of hereditary right of management and transfer of endowed property. The view of applicability of Article 144 and commencement of adverse possession from the date of alienation was re-affirmed by their Lordships of the Privy Council in Damodar Das v. Lakhan Das. Limitation was hold to run from the date of the alienation under Article 144 of the Indian Limitation Act. An attempt was made by Das J. to reconcile the apparently conflicting views in the above Privy Council decisions in the case of Mahant Ramrup Gir v. Lal Chand Marwari I.L.R. (1922) Put. 475 by suggesting that limitation would run from the date of the alienation when the Mahant is only the representative and manager of the idol, the act of the alienation being a direct challenge upon the title of the idol, but where the title is in the Mahant or shebait, the act of the alienation is not a challenge on the title of the idol and there would be no adverse possession so long as the person making the alienation was alive. The distinction so drawn by Das J. does not appear to have been definitely adoptod by the Privy Council when the case wont up in appeal in Lal Chand Marwari v. Ramrup Gir It was observed as follows (p. 35):-

Whether, in other words, the case is governed by the decisions of which Damodar Das v. Adhikari Lakhan Das may be taken as the leading authority : or by the line of authority of which Vidya Varuthi Thirtha v. Balusuami Ayyar may ho taken as typical. Their Lordships, while not pronouncing upon it, have given very careful consideration to this interesting and difficult question. Upon it they say no more than this, that they must not be taken to accept the view with reference to it propounded by the High Court. So far as they are concerned the question remains entirely open to bo determined when it arises.

27. Till the matter is finally decided by the Privy Council, the question is still open. Various lines of reasoning wore adopted by the different High Courts to reconcile the cleavage of opinion reflected in the two Privy Council decisions. In Raja Manindra Narayan Roy v. Sarat Chandra Bandopadhya (1926) 30 C.W.N. 740 the distinction between a permanent lease and a sale was emphasised and the decision in Vidya Varuthi's case was considered as confined to a permanent lease on the ground that the possession of the lessee cannot be adverse so long as the tenancy continues, and it is only when the tenancy comes to an end that the possession of the lessee becomes adverse, and such a rule cannot be applied in the case of a sale. In Rama Reddy v. Rangadasan I.L.R. (1925) Mad 543 it was held that Article 144 did not apply to a case of alienation by a trustee where the alienee derived possession from the trustee, and that consequently the suit could not be barred by limitation on the ground that an idol or a Math is under a perpetual disability and that prescription does not run against a person who is unable to act and an idol is entitled to some protection if it happens to be represented by a person who cannot and will not act in the interest of the idol.

28. The theory of an idol being a perpetual minor or under a permanent disability has been critisised by the Allahabad High Court in Chitar Mal v. Panchu Lal I.L.R. (1925) All. 348 and there is considerable force in the criticism disclosed in that judgment.

29. In Naurangi Lal v. Mahanth Ram Charan Das I.L.R. (1930) Pat. 885 the case of Vidya Varuthi Thirtha v. Balusami Ayyar was considered to be confined to a case of a lease and it was held that a distinction must bo drawn between a permanent lease and a sale, and that where a Mahant or a shebait completely transfers an endowed property to a stranger, the period of limitation for a suit to recover that property begins to run from the date of the alienation, when the possession of the alienee becomes adverse to the idol or Math under Article 144. This view derives support from the judgment of Lord Buckmaster in Subbaiya Pandaram v. Mohamad Mustapha Maracayar where the argument that the period of limitation begins to run afresh as each new trustee succeeds to the office, based on the decisions of the Privy Council in Ishwar Shyam Chand Jiu v. Ram Kanai Ghose and Vidya Varuthi Thirtha v. Balusami Ayyar, has been answered on the ground that those cases related to the effect of an attempt on the part of a trustee to dispose of the property by a permanent mukurari lease, and it was remarked that in the case of a permanent lease the possession given in the lifetime of the trustee was not adverse and upon his death the succeeding trustee would be at liberty to institute proceedings to recover the estate, and such an argument had no relation to cases where the property had been acquired under an execution sale and possession retained throughout, and it was further observed that there was little difference in principle between a transfer under an adverse execution and a sale by the trustee himself, and that Article 144 covered the exact case.

30. In Abdur Rahim v. Narayan Das Aurora which related to a mortgage by the former Mutawalli, it was contended that the mortgagee was entitled to have a charge declared on the portion of the property which was settled for the benefit of the settlor's family, and it was held that the whole mortgage failed and no part of the property held in wakf is chargeable, and on the question of limitation it was held that as the former Mutawalli was in possession within twelve years before, the claim was not barred. It was found in that case that the mortgagee did not get possession and as the mortgagor the former Mutawalli was in possession within twelve years before suit, the suit was not barred by limitation. It would, therefore, follow that different considerations would prevail if the mortgagee from the former Mutawalli had obtained possession for more than twelve years before suit.

31. It appears that as manager the Mutawalli has a right to let the lands by a yearly lease or by a permanent lease, and the tenant, whether for a period or in perpetuity, cannot during the lifetime of the manager of a religious institution set up an adverse title when he pays rent to the manager, and the possession of such a tenant cannot be adverse till the death of the manager or his removal from office. In the case of a sale different considerations arise. From the date of the alienation the property is lost to the institution, and there is no conduct on the part of the alienee which would indicate that his possession is on behalf of the institution as in the case of a permanent lessee who admits the title of the institution, by payment of rent to the manager. Therefore, in the case of a permanent lease limitation would not run until the death of the manager or until his removal. I think, therefore, that in the case of a sale by the Mutawalli the limitation would run from the date of the alienation.

32. In appeal No. 434 of 1926 we have to deal with three mortgages, Exhibits 159, 160 and 161, dated March 17, 1910, October 31, 1912, and September 28, 1916, respectively. In the companion appeal No. 435 of 1926, we have to deal with the sale-deed, Exhibit 124, dated July 31, 1918. The finding of the lower Court with regard to the mortgages, Exhibits 159, 160 and 161, is that they are not for necessary purposes, binding on the institution. Exhibit 159, dated March 17, 1910, is more than twelve years before the date of the institution of the suit, while Exhibits 160 and 161 are within twelve years before suit. As I have already held, the new mortgages were fresh transactions though the money borrowed went in payment of the previous mortgages which were extinguished.

33. The question, therefore, is whether a mortgage stands in the same position as a sale or a permanent lease so far as the power of the manager of a religious institution is concerned. In the case of a mortgage, the equity of redemption resides in the institution, and in one sense it resembles a permanent lease in that it is not a complete alienation of the property. On the oilier hand, under Section 105 of the Transfer of Property Act a lease is a transfer of the right to enjoy immoveable property, while a sale under Section 54 is a transfer of the ownership, and under Section 68 a mortgage is a transfer of an interest in specific immoveable property. So far as it is the transfer of interest in immoveable property and not merely transfer of the right of enjoyment of the property, it resembles an alienation by way of sale.

34. A distinction is drawn by the Judicial Committee between a sale or an absolute assignment and a permanent lease for purpose of adverse possession in respect of watan lands in the case of Madhavrao Waman Saundalgekar v. Raghunath Venkatesh Deshpande

35. According, however, to the decision of the full bench in Bhavrao v. Rakhmin I.L.R. (1898) Bom, 137 there is no distinction between alienations by way of mortgages and sales for the purposes of adverse possession in a suit, for partition of joint family property, and it was observed as follows (p. 141):-

Nevertheless his exclusive possession does not on that account cease to be adverse. He, entering as owner, his possession must, we think, necessarily bo adverse to the true owners. Adverse possession depends upon the claim or title under which the possessor holds and not upon a consideration of the question in whom the true ownership is vested-whether in a single person or in many jointly.

36. According to the decision in Ramchandra Venkaji Naih v. Kallo Devji Deshpande I.L.R. (1915) Bom. 587: 17 Bom. L.R. 630 which relates to mortgage of watan land, a mortgagee from a Mutawalli or manager of a religious institution would remain a mortgagee, and would acquire by adverse possession the limited interest to which he is entitled, namely, that of a mortgagee. The adverse, possession, in my opinion, would commence, as in the case of a sale, from the date of the mortgage.

37. I think, therefore, that the mortgage, Exhibit 159, dated March ] 7, 1910, is binding on the institution as it is more than twelve years before suit, and the plaintiffs cannot recover possession of the property without paying the amount secured on the mortgage.

38. With regard to Exhibit 160 dated October 31, 1912, it is within twelve years before the institution of the suit and I agree with the finding of the lower Court that the mortgage was not effected for a necessary purpose. It is not binding on the institution on the ground that it is not supported by necessity and also on the ground that it is not validated by lapse of time under Article 144 of the Indian Limitation Act,

39. The third mortgage, Exhibit 161, dated September 28, 1916, is merely a mortgage of the equity of redemption to defendant No. 8 who had not possession of the property. It is found that it is not supported by any necessity and is also within twelve years before suit. It is, therefore, not binding on the institution.

40. In the other suit No. 587, the sale-deed, Exhibit 124, is dated July 31, 1918, and is in respect of 33 1/2 bighas. The sale-deed is within twelve years before suit, and therefore, the defendant in that suit cannot claim to have acquired title by adverse possession. The learned Subordinate Judge, however, relying on the evidence of the father of defendant No. 4, Exhibit 121, held that the mortgage Exhibit 126 dated June 10, 1865, for Rs. 4,000 was binding on the institution. The mortgage, Exhibit 126, of June 10, 1865, in favour of Vallabh Lallu and Prag Khushal for Rs. 4,000 was satisfied on May 28, 1898, by borrowing money from Umedram Occhavram in whose favour the mortgage, Exhibit 125, was passed by defendant No. 4's father on May 28, 1898, which remained unpaid till August 2, 1918, when the sale-deed Exhibit 124 was passed. It is very difficult to rely on the evidence of defendant No. 4's father in Exhibit 121 when he stated that the money was borrowed by Exhibit 126 for the purposes of the Masjid and the darga, when a similar statement of defendant No. 4's father with regard to the mortgages in respect of 397 1/2 bighas was disbelieved by the lower Court. It is difficult to rely on the statement made by the same witness in respect of the mortgage, Exhibit 126, when he is disbelieved in respect of the other mortgages, Exhibits 128, 157, 156, 158, 160 and 161. If the evidence of defendant No. 4's father is true that the mortgage, Exhibit 126, was effected for a necessary purpose, the sale-deed of the defendant in suit No. 587 might be set aside as being within twelve years, but as the consideration money for the sale-deed went in liquidation of the mortgage, Exhibit 125, which in its turn satisfied the mortgage, Exhibit 126, the alienee would be entitled to recover the amount of Rs. 4,000. But I feel a difficulty in believing defendant No. 4's father on this point when the learned Judge disbelieved him with regard to the other mortgages. There is, however, another point on which the defendant in suit No. 587 is entitled to succeed. With regard to the 3971/2 bighas the several mortgages, Exhibits 128, 157, 156, 158 and 160, were effected each within twelve years of the preceding one, and therefore, none of the mortgagees had acquired a title by adverse possession. The mortgage, Exhibit 161, dated September 28, 1916, was within twelve years before suit) and was merely a mortgage of the equity of redemption. The mortgage, Exhibit 159 relating to 241/4 bighas is dated March 17, 1910, and is beyond twelve years of the institution of the suit. I have, therefore, held that it is binding on the institution. All the mortgagees with regard to the 3971/2 bighas had not acquired adverse possession of the limited interest of a mortgagee. But the mortgage Exhibit 126, in suit No. 587, relating to 331/2 bighas was passed on June 10, 1865, and it was not paid off by defendant No. 4's father till May 28, 1898. The mortgagee was in possession for nearly thirty-three years, and even if Exhibit 126 be considered to have been extinguished by the subsequent mortgage, Exhibit 125, passed on May 28, 1898, the mortgagee Umedram Occhavram was in possession for nearly twenty years till July 31, 1918, when the sale-deed, Exhibit 124, in favour of the defendant in suit No. 587 was passed. It is to be noted that after the mortgage, Exhibit 125, was passed by defendant No. 4's father on May 28, 1898, defendant No. 4's father died in 1901 three years thereafter, and defendant No. 4 succeeded as a Mutawalli, and even taking the decision in Vidya Varuthi's case to apply to an alienation other than a permanent lease, defendant No. 4 did not sue within twelve years after he came into power in 1901 as the Mutawalli to set aside the mortgage effected by his father. The mortgage, therefore, in my opinion, became binding on the religious institution either on the ground that twelve years had elapsed from the date of the alienation or from the death of the manager who effected the mortgage. The mortgage, Exhibit 125, being binding on the institution, the sale-deed, Exhibit 124, dated July 31, 1918, which was effected to pay off that mortgage, must be upheld to the extent of the debt created by the mortgage, Exhibit 125, which was for Rs. 4,500 and which had become binding on the institution by lapse of time. I think, therefore, that the plaintiffs cannot recover possession of 331/2 bighas covered by the sale-deed, Exhibit 124, dated July 31, 1918, without paying off the amount of Rs. 4,500 due on the mortgage Exhibit 125.

41. The result, therefore, is that in appeal No. 434 of 1926 in suit No. 588 of 1924, I would reverse the decree of the lower Court and allow the plaintiffs possession of 390 J bighas out of 3971/2 bighas, and set aside mortgages Exhibits 160 of October 31, 1912, and 161 of September 28, 1916 ; but with regard to the 241/4 bighas covered by the mortgage. Exhibit 159, dated March 1/, 1910, I would allow the plaintiffs to recover possession of the property on payment of Rs. 1,500 the amount due on the mortgage within six months from this date and in default the right of redemption will be for ever barred. Having regard to the difficult question arising in the case, 1 would order each party to bear his own costs throughout.

42. In appeal No. 435 of 1926 in suit No. 587 of 1924 1 would reverse the decree of the lower Court and allow the plaintiffs to recover possession of the 331/2 bighas from the defendant purchaser under the sale-deed Exhibit 124 on payment to him of Rs. 4,500 due on the mortgage, Exhibit 125, dated May 28, 1898, within six months from this date, or in default the right of redemption will be for ever barred. Each party to bear his own costs throughout.

Murphy, J.

43. The suit was filed by the Mutawalli and trustees of a Muhammadan wakf, having been appointed by the District Court of Surat, to recover certain immoveable property situated in the village of Mogar in the Surat district and alleged to have formed part of the original wakf and to have been improperly alienated by the late Mutawalli, or his son defendant No. 4, and now to be in possession of the other defendants. The only real issues are, whether, or not, the property claimed formed part of the wakf, and if it did, whether the suit is in time, or not, as regards any or all of the property.

44. The specific facts are the following-

45. The villages of Mogar and Nasirpur wore alienated by the Mogul Emperor Alamgir in 1668 in favour of the family of two celebrated saints and have been held by the family ever since. A sanad was granted by the British Government in recognition of the grant in 1874 and this is one in personal inam, a form of tenure which allows of alienations by the owners, There is no sovereign grant of a wakf, and the one we are concerned with is a private dedication by the members of the alienees' family. There is no document, but the dedication is said to have been prior to 1807, and is connected with the services of a mosque and two dargas at Navsari in Baroda State. The Baroda authorities first took action in the matter in 1910, and since then a Mutawalli has been appointed for the property of the foundation at Navsari, and also a committee to manage it. The British India suit, which ended in the deposition of the same Mutawalli, defendant No. 4, was filed in 1919 and finally decided by this Court in 1922. The Mutawalli and committee are the same as the ones appointed by the Baroda State. This suit was filed on September 29, 1924, by that Mutawalli and committee. The learned Subordinate Judge's important findings are that (1) the suit properties have been proved to be wakf, (2), that the suit alienations are not valid and binding on the plaintiffs : but that the suit is time-barred. The suit was accordingly dismissed. Appellants' main point was the one they had failed on, that of limitation, but Messrs. Thakor and Coyajee for the respondents supported the decree also on grounds which were found against them in the Court below. It is, therefore) necessary again to decide both the main points in the suit.

46. There are, to begin with, certain difficulties in identification. The village has never been surveyed and there are no land records, and there is no map based on any real measurements. The areas given are approximate bighas. The description in the plaint is by approximate areas and boundaries and tenants' names, and occasionally a field name. The descriptions in the mortgage and sale-deeds are similar.

47. The earliest document is the Emperor's grant and is not of a wakf, but one for maintenance, and the Government sanad correspondingly one of a personal inam. The wakf, if any, was, as it could be, created by the alienees. The earliest mention of it is in a document of 1807. This is executed by one Malek Abas son of Malek Ishak, who acknowledges the receipt of 'the Khanka and wakf land of Mogar' and undertakes properly to expend its revenue.

48. The next document in time is Exhibit 101 of 1829. This is really a consent decree dividing the inam lands into three principal shares and allotting the liabilities of the family for its debts. Its importance in the case is that it mentions a large, though not further defined area, as Khanka a word not synonymous with wakf but implying a wakf of a special kind. It is really by a process of reasoning on the basis of this document that the identity of the land is made out.

49. The third document is of 1833 and is also an agreement between the owners of the village. It again mentions the Khanka.

50. The fourth, another agreement of 1853, when Hajimiya relinquished his share of the Khanka land and the whole of its management was handed over to defendant No. 4's grandfather. Nanumiya, defendant No. 4's father, appears to have been the manager from 1865 till he died in 1901. In 1887 there was a suit against him in the Navsari Court, for accounts, in which it was alleged that wakf property had been alienated, and he was examined, but in the end the suit was withdrawn. It appears that Nanumiya and probably his predecessors before him, as well as his successor after him, had been treating the family wakf property as their own, and had been encumbering it for their private debts. The proceedings of 1887 were, however, in Baroda, as were those which began in 1910.

51. The importance of these proceedings of 1910 onwards in Baroda State has, I think, been unduly exaggerated in the present suit. The reason is that the foundation in the interests of which the land at Mogar was dedicated to wakf is at Navsari in that State and all there is in British India is the land, the income of which should be spent on the mosque at Navsari. In these circumstances the Mutawalli or Sajjadanashin was naturally single and managed, in theory, both the land in British India and the mosque and its property in Navsari. In reality he had so a dual office as Mutawalli of the land in British India to be managed in the interest of the foundation in Baroda, and the duties of his office in Baroda. But when it comes to legal proceedings, the Baroda writ does not, except by a special procedure, run in British India, and vice versa ; and consequently the deposition of defendant No. 4 as Mutawalli in Baroda could not in law, as the learned Subordinate Judge seems to think, have a like effect on his office and duties in British India, of which he was not deprived in the due course of law till the final decision of the suit of 1919 in 1922. On this point the learned Subordinate Judge seems to me to have missed the significance of another important fact. The Baroda proceedings were, even in the first instance, only a qualified deposition. Defendant No. 4 was readmitted as Mutawalli on entering into certain undertakings in 1915, and was in possession of the office for at least a year, and was then again expelled. This incident also has a bearing on the question, though in my view not an important one, for the Baroda proceedings admittedly excepted from their scope, as in fact they specifically state, the land in British India, and if this is so, and it must be, we cannot assume that defendant No. 4 was dispossessed in 1910 in British India and that time began to run from that year in his and his alienees' favour till 1924, when this suit was brought, and that it is consequently time-barred.

52. The law of limitation in the case of a Mutawalli of a Muhammadan wakf has recently been altered by Act I of 1929, but these facts are of an earlier date. It had been held in Vidya Varuthi Thirtha v. Balusami Ayyar the leading case on the point, that a Mutawalli is not a trustee within the English meaning of that word but a manager with certain powers over the property belonging to the foundation, and the general principle of limitation applied was that where such a manager grants a lease, either permanent or for a term of years, it is good for his lifetime and limitation begins to run from the date of his death, but that in the case of an unauthorized sale the starting point is the date of the sale, both under Art, 144 of the Indian Limitation Act.

53. There are no leading cases directly bearing on the point of departure for limitation in such circumstances in the case of a mortgage ; but since a mortgage with possession partakes more of the nature of a sale than of that of a lease, I think that it must for this purpose be treated in that category, where as here, the mortgagor lost possession-in fact, possession was with permanent tenants-and that the date of departure for adverse possession would, as in the case of a sale, be the date of the mortgage. There were here a series of transactions and it is necessary to set them out. We are concerned with three parcels of land, and we have to deal with the transactions affecting the three parcels separately.

(1) The 397 1/2 bighas were successively mortgaged in 1892, 1900, 1905, 1906 and 1912, ending with the mortgage of the equity of redemption in 1918.

(2) The 33 1/2 bighas were mortgaged in 1865 and 1898, and were sold in 1918.

(3) The 24 1/4 bighas were mortgaged for Rs. 1,500 in 1910.

54. The first point to decide is whether the possession of successive mortgagees is a continuation of adverse possession, or whether it ceases on the mortgage being redeemed, even though the purpose of the fresh mortgage is to pay off a former one as was the case here with respect to the 397 1/2 and 33 1/2 bighas, I think that there must be a rest at the points where one mortgage is paid off and a second is executed, during which possession must be deemed to have been with the owner, or here the manager of the wakf, and that a succeeding mortgagee and in the end, a final one, cannot tack his own possession to that of his predecessors, for each mortgage incurred and paid oil' is a transaction by itself. If I am right in so thinking, we have to consider the three cases before us on these lines. The mortgage of 1910 is not within twelve years of the suit and cannot therefore be set aside, so that if the wakf is to recover the 24 1/2 bighas, it must be redeemed by a payment of Rs. 1,500.

55. The series of mortgages of 397 1/2 bighas, beginning with the one in 1892 and ending with the one of 1912 (Exhibit 160), are all within twelve years of each other, and the last one is within twelve years of the suit, it having been executed on October 31, 1912, and the suit having been brought on September 27, 1924.

56. It has been found that these mortgages were not for a necessary purpose, and I agree with this conclusion.

57. In these circumstances this mortgage, and its successor, mortgaging the equity of redemption, are not binding on the wakf and may be set aside. The last parcel of 33 1/2 bighas was mortgaged in 1865 and again in 1898, and was sold in 1918. The sale is within twelve years of the suit and can be set aside. The first mortgage of 1865 was satisfied on the execution of the second one in 1898 in favour of Umedram Occhavram, but that person remained in possession for twenty years : his predecessor having been in possession for thirty-three years. The learned Subordinate Judge thought that the mortgage of 1898 was made for a necessary purpose, but there is only the word of the defendant's father, who was obviously interested, to this effect. He died in 1901. Even if we reject the finding as to its object, adverse possession on the premises we have adopted ran against the wakf from 1901 at least-and the amount due on it was Rs. 4,500.

58. The learned counsel for the respondents have supported the lower Court's decree on all possible grounds and it is necessary that I should say a few words on some of these other grounds.

59. One of the arguments used was that no wakf of this land had been made out. It is true that the dedication to wakf must have been private and that there is no document of grant: but the fact has been referred to so often, over so long a series of years, that I think it must be accepted, as it was by this Court in the suit brought by the plaintiff and others in 1919 ; for it is very improbable that the facts would have been as we find them, had the wakf not been recognised in the family even though through the same long series of years, the successive Mutawallis treated it as if the dedicated property was their own. In plaintiffs' words, they were all men who like himself, 'are unreliable and needy. I am also like them., i. e., all of us would swallow charitable property.'

60. Yet another argument has been that in any case by a local custom long since recognized in Abas Alli v. Ghulam, Muhammad (1863) 1 B.H.C.R. 36 and Krishnarao Gunesh v. Rangrav (1867) 4 B.H.C.R. 1 wakf land in the Broach and Surat districts may be mortgaged by the Mutawalli, in spite of the contrary in directions of the Muhammadan law. But the custom was never pleaded this case and there is no evidence of it; while the cases relied on are old ones. There is no recent support of Mr. Coyajee's contention, and I think that in the circumstances we cannot be guided by these rulings. Again it was argued that under the Muhammadan law the Kazi has authority to sanction alienations of wakf property and that two of the relevant documents have been attested by a person who describes himself as a Kazi. But we do not know whether he signed as a Kazi, and in any case a mere attestation is, I think, something different from a formal sanction of an alienation for proper reasons, and of such a sanction there is no evidence.

61. To sum up,-I think that the land in question has been shown to have been part of a private family wakf, and that plaintiff and his committee as the result of the suit of 1919 under Section 92 of the Civil Procedure Code, are entitled to sue to recover it for its dedicated object; that the proceedings in Baroda territory cannot be considered to have had any effect, as an origin for limitation, so as to affect this land in British India ; that the proper Article of the Indian Limitation Act to apply is 144 ; that where there are a series of mortgage transactions, each mortgage being redeemed on its successors' execution, time begins to run from the date of execution of each successive mortgage ; and that such alienations not being for a necessary purpose may be set aside, provided that adverse possession has not existed for more than twelve years before suit.

62. Applying these findings to the facts we are considering, I conclude that the mortgage of 1910 cannot be set aside and must be redeemed : that that of 1898 ending in the sale of 1918 is in similar-case ; but that no adverse possession has been made out in the instance of the remaining parcel of land, and that those encumbrances may be set aside. I agree, therefore, with the order proposed by my learned brother in his judgment just delivered.


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