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Saiyed Jaffar Eledrus Vs. Saiyed Mahomed El Edrus and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civilization
CourtMumbai
Decided On
Judge
Reported in169Ind.Cas.232
AppellantSaiyed Jaffar Eledrus
RespondentSaiyed Mahomed El Edrus and ors.
Excerpt:
muhammadan law - wakf--sajjadanashin--powers of--suiplas income, if can be applied for needs of indigent members of family--maintenance--arrears, who can claim--limitation act (ix of 1908), schedule i, articles 62, 120--article 62, when applies co-sharers--share in moglai hak sold by co-sharer without knowledge of another co-sharer--suit by latter for share of sale proceeds--limitation--refusal and demand. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to point out that the assets recovered in the search were not undisclosed to point out that the assetsrecovered in the search were not.....broomfleld, j.1. the parties to this litigation, with the exception of respondent no. 2, court of wards, are members of the well-known edrus family of surat tracing its descent from the prophet mahomed, the early history of which is recorded in sayed abdulli edrus v. syed zain syed hasam edrus 13 b. 555, there are certain durgahs or jrozas (shrines) of the ancestors of the family at surat and broach for the maintenance of which the villages) of umraj and orma have been dedicated under ancient grants. there are also private properties. the administration of the estate is normally carried on by a sajjadanashin who is also mutawali, but in the time of syed ali, who was sajjadanashin from 1909 to 1926, it became so impoverished that the secular management had to be taken over by the court of.....
Judgment:

Broomfleld, J.

1. The parties to this litigation, with the exception of respondent No. 2, Court of Wards, are members of the well-known Edrus family of Surat tracing its descent from the Prophet Mahomed, the early history of which is recorded in Sayed Abdulli Edrus v. Syed Zain Syed Hasam Edrus 13 B. 555, There are certain durgahs or Jrozas (shrines) of the ancestors of the family at Surat and Broach for the maintenance of which the villages) of Umraj and Orma have been dedicated under ancient grants. There are also private properties. The administration of the estate is normally carried on by a sajjadanashin who is also mutawali, but in the time of Syed Ali, who was sajjadanashin from 1909 to 1926, it became so impoverished that the secular management had to be taken over by the Court of Wards This appeal arises in one of several suits disposed of by the First Class Subordinate Judge, Surat, in a single judgment. The particular suit, with which we are concerned is No. 586 of 1927. Plaintiff is the son of Abdullah, the eldest son of a former sajjadanashin, Syed Hasan. As a matter of history it may be mentioned that Syed Hasan appointed his second son Zain to succeed him as sajjadanashin. In 1832 plaintiff's father Abdullah claimed the gadi in the suit which was decided in Syed Abdullah Edrus v. Sayed Zain Sayzd Hasam Edrus 13 B. 555, but the High Court upheld Zain's appointment. Zain was succeeded by his son Syed Ali who appointed his nephew Hasan lo succeed him. Hasan abdicated in favour of his father Jaffar. Hasan and Jaffar are defendants Nos. 2 and 3 in the present suit. Defendant No. 1 is the Court of Wards.

2. The plaintiff claims : (1) a share by partition in two private properties in Surat, (2) maintenance at Rs. 50 a month with arrears from September 1921., out of the income of the wakf properties, (3) the sum of Rs. 2,275 being his share in the sale-proceeds of certain dues called the Sachin Moglai Hak, (4) various other reliefs which it is not necessary now to specify. The trial Court has allowed the first three claims with the excerption that maintenance has been awarded at Rs. 20 a month up to April 1925, and thereafter at Rs. 40 a month. Defendant No. 1 has also been ordered to pay plaintiff Rs. 387-100 with interest at nine per cent, for his share in remission of assessment of Orma village. The other reliefs have been refused. In this appeal, which is brought by defendant No. 3, the sajjadanashii, objection is taken to the decree so far as it awards maintenance and a share in the proceeds of the moglai hak. The plaintiff's claim to maintenance is based according to the plaint on an alleged ancient family custom by which a monthly allowance and various other allowances are payable as of right to every member of the family. It is alleged that the villages Umraj and Orma were granted partly with the object of providing these allowances and also that the right of plaintiff's father and plaintiff himself to receive them has been acknowledged by the sajjadanashin and mutawalis from time to time. On behalf of the appellant it is contended that no such custom is proved, that the two villages are durgali properties and were granted for the maintenance of the shrines that such payments as have been made to plaintiff's father and plaintiff and other members of the family have been made as a matter of grace at the discretion of the sajjadanashin and not as a matter of right, and that there is no legal charge on the wakf properties in respect of such claim. In any case it is contended there is no right to claim arrears of maintenance and the rate of maintenance is excessive.

3. No issue was sought as to the alleged custom of the family and in fact the trial seems to have been conducted in a rather haphazard fashion. A multitude of documents was produced and the Court was left, to the best it could with them. There is no oral evidence. It appears from the durgah accounts and from other evidence, and it is not disputed, that it has in fact been customary for the sajja-danashin to pay certain allowances mostly of a very small amount to members of the family, especially female dependants. We have lists of such payments made by Mohammad III (1758 to 1840) Syed Hasan and Syed Zain : Exs. 245, 246 and 247. Syed Hasan in his will made in 1889, (Ex. 118, para. 24) enjoined up in h's successor to maintain his family and children 'according to the old practice of maintaining the people of the ancient muta-walis.' In his deposition in the suit of 1882, (Ex. 804) Zain admitted a custom by which the income of the wakf properties was utilized among other things for the maintenance of the members of the family. Plaintiff's father Abdulla was impoverished by that litigation in which he failed. He was paid an allowance of Rs.30 a month by Zain which was subsequently increased to Rs. 50. He was also given a house to live in. Incidentally it may be mentioned that in the agreement relating to this Ex. 418 he acknowledged Zain's sole ownership of the house. After Abdulia's death plaintiff was paid Rs. 20 a month up to 1921, when the allowance was discontinued owing to his hostile attitude (Ex. 514).

4. But to say that it has been customary for the sijjadanashin to make these payments towards maintenance of members of the family is one thing : to say that any and every member of the family of the sajjadanashin and his predecessors is entitled to claim as of right to be maintained out of the income of the wakf properties is quite another. It is the duty of the sajjadanashin to apply the income of the wakf properties for the purposes of the endowment. He has ordinarily full powers of disposition over any surplus income as pointed out in Vidya Varathi Thirth v. Balusami Ayyar 48 I.A. 302 : 65 Ind. Cas. 161 : A.I.R. 1922 P.C. 123 : 44 M. 831 : (1921) M.W.N. 449 : 41 M.L.J. 346 : 3 U.P.L.R 62 : 15 L.W. 78 : 30 M.L.T. 66 : 3 P.L.T. 215 : 26 C.W.N. 537 : 24 Bom. L.R. 629 : 20 A.L.J. 497. In the exercise of thai, power he may, and no doubt it is very desirable that he should provide for the needs of indigent members of the family. It may even be said that he is under a moral obligation to do so. But legally the disposition of the money is in his hands, subject to the terms of the grants under which the property is held and to any proved custom of the institution. See Muhammad Hamid v. Mian Mahmud 50 J.A. 92 : 77 Ind. Cas. 1009 : A.I.R. 1922 P.C. 384 : 4 Lah. 15 : 44 M.L.T. 149 : 32 M.L.T. 52 : 27 C.W.N. 701: 25 Bom. L.R. 660 : 38 Ci.L.J. 231 : 1 P.W.R. 1923 (P.C.), where Vidya Varuthi Thirtha v. Balusami Aiyar 48 I.A. 302 : 65 Ind. Cas. 161 : A.I.R. 1922 P.C. 123 : 44 M. 831 : (1921) M.W.N. 449 : 41 M.L.J. 346 : 3 U.P.L.R 62 : 15 L.W. 78 : 30 M.L.T. 66 : 3 P.L.T. 215 : 26 C.W.N. 537 : 24 Bom. L.R. 629 : 20 A.L.J. 497 (P.C.), is explained. The terms of the grants I shall discuss in a moment. All 1 am concerned to point out now is that the evidence as to what the sajjadanashins have in fact done in the past is consistent with the view, that they acted in exercise of their right of disposing of the surplus income according to their discretion. As long as there was any surplus income available it appears that the members of the family in need of maintenance received some allowance, so there may not have been any occasion for dispute. However that may be, there is nothing to show that maintenance was claimed as of right until the estate was taken over by the Court of Wards in 1923, and the position then taken up by Syed Ali was that, though it had been the custom to pay maintenance to near relations, it had been entirely a matter in the discretion of the sajjadana-shin and no one could claim it as of risht; (Exs. 543 and 544).

5. So far as this part of the case is concerned, that appears to be the correct position. Certainly there is no ancient, definite and invariable custom proved by which all members of the family can claim maintenance or which would support the claim of the present plaintiff in particular. Nor is there any evidence worth the name of any acknowledgment of such a right. That being so plaintiff has nothing to rely upon except the Firman and Sanads relating to the grant of the villages of Umraj and Orma. The original grants are not forthcoming in either case, but there are a great many deeds renewing and confirming the grant from the beginning of the seventeenth century, onwards They are all in the name of the satfadanashin for the time being and generally speaking these are expressed to be made for the expenses of one or more of the durgahs or rozas and the fairs and festivals connected therewith without any reference to the family of the sajjada-nashin. Details are given in the judgment of the lower Court (pp. 29 and 30 of the print), and it is unnecessary to refer to any of the documents except those on which plaintiff relies. Exhibit 169, dated 1609, begins by reciting that the village of Umraj:

had been fixed in accordance with the high Imperial Mandate together with the other places as provision for the maintenance of the Asylum, of Syedship and leadership Syed Ahmed Aidroos.

6. It then goes on to state that :

Whereas it appears that of the family of Aidroos Syeds who are now at Broach, Syed Ahrned is the most learned, master of divinity, having a large number of followers dependent on him,

the village of Great Divi should be given in lieu of Umraj and was granted 'for the maintenance of the aforesaid personage and his adherents.' It appaars, however, that this was merely a temporary measure, for Great Diva did not continue to belong to the family and Umraj was restored to it. Since the deeds relating to Umraj itself contain no such reference to the followers and adherents of the sajja-danashin, Ex. 169 can hardly be said to support the plaintiff's case, even assuming that followers and adherents 'would include all the members of his family. Reliance is also placed on Ex. 168, dated 1679. This is a grant in the usual form reciting that the village of Umraj had been settled for the expenses of the holy Roza of Syed Ahmed Edrus. There is an endorsement on the back stating Chat it was settled for maintenance (Gujaran ni madat anne rojana kharachne mate) in the Gujarati translation of the Persian original) and for the expenses of the roza. Probably this does mean maintenance of the grantee i.e., the sajjadana-shin, and of course it is perfectly reasonable that the man who is to administer the endowment should live out of it. It can hardly mean more than that and anyhow the use of this vague expression in a single document is obviously no support to the claim now put forward by the plaintiff. Of the documents relating to Orma only one, Ex. P50, makes any reference to maintenance. This is an order of the Ruling Power on a petition made by the sajjadanashin relating to two villages, Songarh which is meant for the maintenance of the petitioner' and Orma 'which is granted for the expenses of the shrines'. The order was:

The revenues of the villages mentioned above are granted for the expenses for the Oras of the shrines and for the maintenance of Syed Sharif Shaikh, the Sajjadanashin.

7. It is extremely doubtful if this means that both villages were granted for the maintenance of the sajjadanashin in view of the previous recitals. In any case this order cannot show that the village of Orma is charged with the maintenance of the whole of the family of that sajjadanashin and the whole of the family of all his successors. It appears that there were at one time several other villages which were granted for the maintenance of the sajjadanashin These apparently have been resumed or lost in some way. It cannot be assumed, however, as Mr. Choksi for the plaintiff suggested, that the villages of Umraj and Orma thereby became charged with the cost of maintenance. There are also on record a number of documents called Tauliatnamas, these being the deeds by which the sajjadanashin (mutawalli) appointed his successor. Several of them for instance, Exs. 117, 170 and 171, lay stress on the absolute powers of the mutawalli to deal with the income of the estate at his discretion and to spend it 'as he may choose and for whatever person he may choose and for whatever thing he may choose.' They also contain expression's such as this:

The duties appertaining to the buildings and repairs and of the usual fairs of the great ancestors and of the affairs of the prosperity of all those things and of the family and of attending to the visitors to the shrines.

8. These are very old documents, but as recently as 1909, Syed Ali in a public declaration, Ex. 172, referred to the fact that his father had entrusted him with the duty among other things of 'rendering assistance and help to the members and relations of the house.' It is hardly necessary to point out, however, that if the villages in question are not chargeable with the maintenance of the family under the sanads by which they were granted or under any custom having the force of law, these Tauliatnamjts could not make them so chargeable. Apart from that, the very vague expressions referred to cannot possibly be regarded as a foundation for the claim that the sajjadanashin is legally bound to maintain not only the members of his own family but also the family of his predecessors out of the income of the wakf properties. The learned trial Judge has found that maintenance has never been paid as of right and that though some maintenance allowance was given as a matter of grace to various members of the family from the income of the wakf properties, it cannot be regarded as a legal charge upon those properties. The only ground on which he has awarded maintenance to the plaintiff seems to be that stated at pp. 28 and 32 of the print:

Allowances when made were not by right but looking to plaintiff being son of Abdulla debarred from sajjadanashin his case is peculiar and deserving of greater right.

The plaintiff is the son of Abdulla who was set aside by Syed Hasan as sajjadanashin and mutawalli. Had it not been for Abdulla's being set aside the present plaintiff would have been sajjadanashin after his father as per ordinary practice. He is entitled to some consideration.

9. Thus it cannot be said that the judgment discloses any legal basis for the award. Plaintiff may have been unlucky and may be a deserving' person. If funds were available for the purpose, it might be reasonable to allow him something. The sajjadanashin and the Court of Wards would not be exceeding their powers if they employed part of the surplus income for that purpose. But that is all that can be said. On the evidence produced in the case it is not permissible for the Court to make a decree to enforce any such payment. As we must hold, therefore, that plaintiff has not established a legal claim to maintenance at all, it is nat necessary to consider the question whether he can claim arrears. But Mr. Thakor for the appellant seems to be right in his contention that in any case he could not claim arrears (see Baillie's Digest, Vol. 2, p. 103 and Tyabji's Muhammadan Law, p. 331).

10. I now come to the question of the Moglai Hak. It is common ground that the Mogal Government granted the revenues of certain villages which are now in the Sachin (State and the grant was confirmed by succeeding Governments and recognized by the Nawab of Sachin. In the State books the Hak stood in the name of the sajjadanashin for the time being and so after the decision of the suit of 1882 by the High Court the name of Zain was entered as holder and Abdulla's claim was rejected (see Ex. 635). In 1900 Syed Zain raised a loan of Rs. 12,000 from the Sachin State on a mortgage of the Hak. Afterwards a further loan of Rs. 40,000 was raised on the security of Urnraj and Orma, the Moglai Hak and a bungalow at Dumas. As the loan was not re-paid the State proposed to forfeit the Hak, but it was ultimately settled that it should purchase it for Rs. 18,270 and keep the amount in deposit till repayment of the debt: Ex. 615. On December 18, 1915, the debt was cleared off by appropriating this sum of Rs. 18,207 towards it and by a payment of Rs. 9,000 by Syed AH: Ex. 312, Plaintiff claims Rs. 2,275 as his share of the purchase price of the Hak alleged to have been fraudulently taken by Syed Ali. His case is that the Moglai Hak formed part of the private property of Syed Hasan. The defence is that it was wakf properly and that anyhow the claim is barred by limitation.

11. The appellant relies on the decision of the Administrator of the Sachin State in 1889 (Ex. 635) that as Syed Zain had been declared to be the mutawaui the Hak should be entered in his name in the State records. But the Administrator did not decide and in fact refused to consider the claim of Syed Hasan's heirs to a share of the Hak. That he said, was a matter for the Civil Courts. Reliance is also placed on assertions of Syed Zain and Syed Ali that the Hak was wakf property and on some, far from convincing evidence, that the debts for which the Hak was mortgaged were durgah debts. One would naturally have expected that the question whether this Hak is private property or wakf could be decided by reference to the deeds of grant. It appears that there were two grants, one in 1670 and one in 1713. The first is not produced and there is no explanation of the omission. It should have been with defendants. Exhibits 310 is the grant of 1713. It is a grant 'by way of inam to Syed Jaffar Sadik Aidrus and his Farzandan (offspring) in consideration of the Mansab (i.e. mutawalliship)'. There is no reference to any of the durgahs, and the trial Judge is probably right in saying that it appears to be a private grant and not wakf. The difficulty is, however, that the grantee Syed Jaffar apparently belonged to another branch of the Edrus family. There is no person of that name in the pedigree of the branch to which the present parties belong. Neither plaintiff nor defendants can rely upon this grant without showing how the Hak in question became the property of this branch of the family.

12. That it did in fact belong to the family of the parties seems to be beyond dispute. It is common ground that it was enjoyed by Syed Hasan. But he dealt with it in his will (Ex. lib) as his private property. He first provided that his heirs should be entitled to equal shares bat that if the income of the Hak were required by the mutawalli he should have the enjoyment of it-But in a codicil he altered this and provided that none of the heirs should have a right to any share of the Moglai Hak as long as the mutawaui defrayed the expenses of their maintenance from the villages of the durgahs. But in the event of his not doing so, they should have the power to demand their share in the Hak. The fact that Syed Hasan dealt with it as private property does not prove that it was so. Bat in para. 20 of his will, which, as I have said, was made in 18.9, he has set out in great detail the circumstances in which his father and after him he himself had become owner of the Hak to the exclusion of any other heir. In the absence of any reliable evidence to contradict this we are not' prepared to differ from the finding of the trial Court that the Hak was the private property of Syed Hasan. If so, it is not disputed either in the trial Court or in the argument before us that plaintiff is entitled to the share which he claims, provided that his claim is not barred by time.

13. It was argued on behalf of the appellant that the Moglai Hak was enjoyed by the sajjadanashin adversely to plaintiff's father and plaintiff ever since 1889 when the Sachin State authorities rejected Abdulla's claim to be entered as the holder. But as I have already stated, the claim of Syed Hasan's heirs to share in the Hak was not then decided but left open. Even apart from the provisions of Syed Hasan's will (which indeed plaintiff has not relied upon in this case), the fact that Abdulla was in receipt of a maintenance allowance as long as ne lived and plaintiff himself received one until 1921 makes it practically impossible in my opinion to hold that the receipt by the sajjadanashin of the whole of the Moglaitiak was in denial of their right to a share. That is to say, as long as the Hak continued to be paid annually, the plaintiff's father and plaintiff being in receipt of maintenance, there was no question of limitation. Plaintiff is claiming a share of the sale proceeds. What has to be decided is whether that claim is barred by time.

14. It has been conceded that the case must be governed by one of the three Articles 62, 89 or 120. If Article 62 applies and Syed Ali can be said to have received the sale proceeds to plaintiff's use when the debt was settled up on December 18, 1915, this suit filed in 1927 would certainly be barred. Time would run from the date of receipt of the money. It could be extended under Section 18, Limitation Act, by proof that plaintiff was fraudulently kept in ignorance of the facts. But his Pleader's letter, Ex. 417, shows that be was aware of the material facts in 1920. However, in my opinion, Article 62 does not apply. In the first place there was no receipt of the money within the meaning of that Article. The Hak was capitalised in 190 (and the amount retained by the State till 1915 when it was appropriated by the State in repayment of the debt. It is argued that can be considered a constructive receipt of the money by Syed Ali. But Art, 62 applies in my opinion to suits to recover money actually received and not to a suit like the present where plaintiff's only possible case is that the money ought to have been received and invested on his behalf and he claims payment of the value of his share out of some other fund. In the second place it-has been held in Yerukola v. Yerukola 45 M. 648 : 71 Ind. Cas. 177 : A.I.R. 1922 Mad. 150 : 40 M.L.J. 507 : (1922) M.W.N. 215 : 30 M.L.T. 279 : 15 W. 595 (F.B.), that a suit for money had and received does not lie by one tenant-in-common against another who has received more than his share, the appropriate remedy in such a case being an action for an account to which Article 120 applies, unless from the facts of the case it could be inhered that the person receiving the money acted as the agent of the other, in which case Article 89 would apply. In either case, it has been held, time would begin to run from the date when an account was demanded and refused. This Full Bench decision of the Madras Jilting Court has been approved by this High Court in Govinddas Rajaramdas Gujar v. Ganpatdas Narotamdas Gujar 30 Bom. L.R. 912 : 113 Ind. Cas. 173 : A.I.R. 1928 Bom. 365. The authorities on the law of limitation applicable to such cases are very difficult to reconcile. It would probably be going too far to say that Article 62 can never be applied to a suit between tenants-in-common. In Janardhan Trimbak v. Dinkar Hari : AIR1931Bom189 , it was held applicable in the case of a suit to recover a share in arrears of annual sums payable out of the revenues of a village which had been received by one of the persons entitled thereto. But we have not been referred to any cafe in which Article 62 has been held applicable in a case like this where it would be necessary to have recourse to a double fiction, firstly, that the money has been received by the defendant when in fact he never did receive it, and, secondly, that the received it for the use of the plaintiff when in fact he dealt with it as his own property in denial of the plaintiff's right. There is nothing to show that plaintiff consented to or was aware of the mortgage and subsequent sale of the Moglai Hak. It is alleged in the plaint that he was fraudulently kept in ignorance. The facts are not such that agency can be inferred. Article 89, therefore, cannot govern the case. But if neither Article 62 nor Article 89 applies, Article 120 apparently must. If so, on the authorities to which I have referred, the suit is in time. It is true that plaintiff made a demand for his share in 1920 by his Pleader's letter (Ex. 417) but apparently there was no answer to that letter. The matter was referred to the Court of Wards and there was no refusal of the demand until it was turned down by the Court of Wards in 1925. The result is that plaintiff's claim to maintenance both past and future must be disallowed and the decree of the trial Court in that respect must be set aside. The decree so far as it awards the sum of Rs. 2,275, Rs. 387-10 0 to the plaintiff will be upheld, but we reduce the rate of interest from nine per cent, to six per cent, from the date of the trial Court's decree till payment. As regards costs, the order of the trial Court was that plaintiff should bear his own costs and the costs of the defendants so far as his claim was disallowed, that defendants Nos. 2 and 3 should pay half the costs of plaintiff so far as his claim was allowed and that the other half should be borne by the Court of Wards out of the estate. We are of opinion that the whole of the costs of the litigation may properly be ordered to come out of the estate. From the evidence on record it would appear that but for mismanagement by certain of the sajjadanashins there should have been an ample surplus for the payment of reasonable maintenance to members of the family and that but for this mismanagement litigation would probably have been unnecessary. We think under the circumstances that the plaintiff was justified in bringing this suit. If we were to order that he were to pay the costs so far as his claim fails, the result would probably be that he would get nothing. We accordingly order that the costs of all parties of the suit and the appeal do come out of the estate. Plaintiff has taken certain cross-objections. These either do not arise or have not been pressed. The costs of the cross-objections must be borne by plaintiff.

Wassoodew, J.

15. I agree with my learned brother that the plaintiff's claim to be maintained out of the income of the properties dedicated to the Edrus Durgah, particularly from the revenues of the villages of Orma and Umraj, must be dismissed. The claim is based principally on usage and custom of the institution and the terms of the grants of those villages. It has been established, and the defendants have admitted the fact, that at regular intervals monthly payments have been made by the sajjadanashin to the plaintiff and his father and other members of the family, that the orders of appointment of the sajjadanashin known as Tauliatnamas have enjoined the successor to the gadi to maintain the family and that the declarations by sajjadanashin on taking office contain a resolve to uphold the family prestige by maintaining the different members out of the income (see Ex. 172).

16. The question is whether those payments and acts are referable to a custom which has the force of law. It has to be borne in mind that a sujjadanashin is not only a mutawalli but is also a preceptor and the curator of the durgah where his ancestors are buried. In him, particularly in the case of the Edrus family, is supposed to continue the spiritual line of the founder, The sajjadanashin has wide powers in the management' of the wakf properties and also over the surplus income therefrom see Vidya Varuthi Thirtha v. Balusami Ayyar 48 I.A. 302 : 65 Ind. Cas. 161 : A.I.R. 1922 P.C. 123 : 44 M. 831 : (1921) M.W.N. 449 : 41 M.L.J. 346 : 3 U.P.L.R 62 : 15 L.W. 78 : 30 M.L.T. 66 : 3 P.L.T. 215 : 26 C.W.N. 537 : 24 Bom. L.R. 629 : 20 A.L.J. 497 (P.C.). Normally speaking the sajjadanashin would be justified in appropriating the surplus, after satisfying the needs of the durgah and himself, for the maintenance of the needy members of his family. My learned brother has dealt exhaustively with the various grants and Firmans to illustrate the view that the references therein made to the maintenance of the rozas and the descendants of the Syed or sajjadanashin, do not curtail the power of the sajjadanashin to utilise the surplus of the income according to his absolute discretion. It is sufficient for me to say that those documents do not support the plea that the grants relating to the villages of Umraj and Orma are essentially for the maintenance of the family members of the sajjadanashin or the grantee. Primarily those grants are for the rozas and durgahs and, therefore, clearly wakf.

17. In the view I take of the evidence, the payments made are referable to the exercise of the wide discretion of the sajjadanashin and not to any right based on custom. In order to give effect to such a custom, it must be established that it is invariable and reasonable. The evidence discloses that payments were made to Abdulla and his son on account of their destitute condition. The rates of monthly allowances allowed have admittedly varied perhaps according to the needs of the parties and the surplus then available. In many cases there are agreements of the family members where under payments were made to them. If the whole income were to be devoted to the maintenance of this gowing family, it is reasonable to suppose that very little would be left to meet the needs of the durgah and the sajjadanashin. The Court in countenancing such payments would be destroying the object of the foundation. The sajjadanashin is not a mere functionary or an ordinary trustee. He has always been regarded as an integral part of the institution and his maintenance according to the dignity of his position, having regard to the terms of the various Firmans read over to us, has been the main purpose of the endowments. As my learned brother has pointed out, same of the tauliatnamas emphasize his unlimited control over the income. It seems to me, therefore, the evidence falls short of the degree of proof required to establish the custom of the kind alleged which could be enforced by a Civil Court's decree.

18. With regard to the Moglai Hak it is clear to me that it cannot be regarded as the property of the wakf. The only document (Ex. 310-A) bearing directly on the point does not contain any reference to a grant to the durgah of the Edrus and it has been discovered in the course of argument that the grantee is not directly connected with Syed Hasan's branch. Prima facie having regard to the language of that document the grantee acquired a hereditable and transferable interest ia the subject-matter of the grant. 'How that Hak was acquired by Syed Hasan and his predecessor is not made clear. But inasmuch as it is not wakf it is reasonable to suppose that in the hands of Hasan and his successors it was personal as distinct from wakf property. In that view the descendants of Syed Hasan would be entitled to participate in it. We were referred to the will left by Syed Hasan, but there is nothing in it which could be regarded as derogatory to the claim of the plaintiff. Consequently the plaintiff is entitled to a share in it.

19. The question is whether the claim of the plaintiff is in time. That question is not free from difficulty. It was conceded in the course of argument that the only Articles which could possibly apply to such a claim are Acts. 02, 89 and 120. Article 62 relates to suits for money received by the defendant for the plaintiff's use. It is worth observing that in somewhat similar circumstances the Full Bench of the Madras High Court in Yerukola v. Yerukola 45 M. 648 : 71 Ind. Cas. 177 : A.I.R. 1922 Mad. 150 : 40 M.L.J. 507 : (1922) M.W.N. 215 : 30 M.L.T. 279 : 15 W. 595 (F.B.) held that Article 62 had no application. There are numerous decisions of the different High Courts in India which show in a case of a debt collected by one of several tenants in-common Article 62 will not apply. There are also decisions to the contrary. It seems to me difficult to hold, having regard to the technical expression used in Article 62, that it could be applied to a case where the defendant who collects the money has no express duty to hand over the entire sum to the plaintiff, Upon the record it is not possible to say that Syed' Zain and Syed Ali had received the Hak or its capitalised value with the consent of the co-sharers, so that they could be considered as having acted as agents of the co-sharers. Consequently Article 89 has no application. The only Article therefore that could be applied is Article 120. Under that Article time would begin to run from the date when the account was demanded and refused; see Yerukola v. Yerukola 45 M. 648 : 71 Ind. Cas. 177 : A.I.R. 1922 Mad. 150 : 40 M.L.J. 507 : (1922) M.W.N. 215 : 30 M.L.T. 279 : 15 W. 595 (F.B.) and Gabu v. Zipru 45 B. 313 : 59 Ind. Cas. 357 : A.I.R. 1921 Bom 381 : 22 Bom. L.R. 1889. The difficulty is, in this case, as to the precise time when the account was in fact demanded from the defendant. Very little attention seems to have been paid to that aspect of the case in the crial Court. It has been urged before us that Syed Zain held it adversely to Abdulla, that he claimed it as his own and that since the decision of the suit of 1882 in the year 1889 the plaintiffs title has been defeated by adverse possession. Now the onus of proving an adverse title rests entirely on the defendant. There are good reasons for holding that onus has not been satisfactorily discharged. Reference has been made to the letter of 1889 (Ex. 635] by the Administrator of Sachin showing that he refused to enter Abdullas name as a person claiming to be entitled to be the holder of the Hak and preferred to follow the decision of the Court in regard to Syed Zain's claim. That conduce does not establish an adverse title to the. Hak, for since then regular payments have been made to Abdulla and there is no indication from the record that payment was made out of a particular fund unconnected with this Moglai Hak. The subsequent conduct in permitting the Hak to be capitalised and utilised for the liquidation of the durgati debt does not help the defendant. For the first time in 1920 the plaintiff by his notice (Ex. 117) made a claim to the Hak and also complained of the clandestine manner of the recovery of the entire capitalised value.of the Hak from the Sachin State Treasury. That could perhaps be regarded as the starting point for limitation, if there was prompt denial of that claim. My learned brother has pointed out that having regard to the subsequent conduct of the parties it cannot reasonably be held that, when no definite denial was made in 1920 to the claim in the notice, there was refusal of the demand of the plaintiff. Consequently the claim was not barred under Article 120 when the suit was instituted on August 1927. I therefore agree with the order proposed.


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