1. This is a plaintiffs' appeal arising out of a suit by the reversioners of Sah Madhuri Saran for a declaration that the adoption of defendant 1 by defendant 2 his widow was invalid and that he has thereby acquired no right, nor can acquire any right in any waqf property under the management of the parties. The plaintiffs alleged that the widow had no authority from her husband to adopt a boy, that she had become a sanyasi and had no power left to adopt and lastly that under the custom of the family no outsider can be adopted. As the amended plaint stands, the plaintiffs' case further appears to be that the adoption was not in accordance with the intention and directions of the creators of the endowment, and that the adoption of the defendant qua that property was invalid and he was not entitled to succeed as a mutawalli after the death of the widow. The defendants in their written statement did not allege that Gur Saran has become by virtue of his adoption entitled to succeed to the sebaitship immediately, but asserted that the adoption was in every way valid and legal. It was denied on behalf of the defendants that the plaintiffs had any cause of action or locus' standi to maintain the suit.
2. The Court below has found that plaintiffs had no cause of action to maintain the suit and that the adoption of the defendant was in every way valid and in accordance with the directions contained in the deed of waqf. The Court has further found that even if those conditions were broken the widow of Madhuri Saran has by adverse possession acquired the rights of trusteeship and is now in a position to create a new line of succession and that therefore the plaintiffs can neither challenge the adoption of Gur Saran, nor can they deny his right to succeed to the sebaitship.
3. The pedigree is printed at p. 5 of the paper-book. Madhuri Saran was the surviving son of Kundan Lal and an uncle of his was Phundan Lal. On 17th September 1866, Kundan Lal and Phundan Lal executed a deed of waqf dedicating considerable property to Thakur Sri Radha Ramanji Maharaj installed in a temple at Brindaban, and laid down a number of conditions for the guidance of successive trustees. Under Clause 4 power was given to a trustee to appoint his successor in his lifetime. Under Clause 13 power was given to a trustee who had no natural born son to adopt a boy in his lifetime before attaining the age of 25. Under Clause 12 there were directions laid down for making a will authorizing the widow of a trustee to adopt a boy according to certain conditions. Clause 14 empowered the executants to make modifications and alterations in the terms and the conditions of the deed from time to time. Clause 17 laid down that if in future no mutwalli appointed according to the terms given in the document were alive and in existence, then in that case the proper authority (hakim-e-waqf) should have power to appoint as mutawalli and manager of the waqf property a person from the family of the executants.
4. At the time when this deed was executed Madhuri Saran was a minor member of the family. It has not been seriously disputed before us that he would be interested in the family property. Had he in his lifetime challenged the validity of this dedication, a question would have arisen whether his father and uncle were competent to endow a part of the family property when a minor member was alive. But on 19th July 1881, after having attained majority, Madhuri Saran ratified this endowment and agreed to abide by its conditions and further conjointly with his uncle executed a supplementary deed of waqf dedicating some more property for the same purpose and expressly providing that all the conditions given in serial order in the earlier waqfnama should be applicable to that deed, and would be binding upon the executor and the mutawalli for the time being. There is no doubt therefore that Madhuri Saran himself in his lifetime did not repudiate this dedication but accepted it. He continued to be the trustee till his death in 1894.
5. It is an admitted fact that no child was born to Madhuri Saran. It is also not disputed that in his lifetime Madhuri Saran did not act according to the provisions of Clause 4 in the deed of waqf and appoint anyone from among the descendants of his ancestors as his successor. On the other hand by a will dated 16th December 1891, he appointed his wife as his future successor, and further authorized her to adopt any boy from among the relations and members of his brotherhood. This will was followed by another of 20th October 1894, under which he again declared that his wife Mt. Ram Dei would be the mutawalli and manager of the endowed property and temple in his place, and authorized her to make an adoption in case no male issue were born or if born did not survive him. The translation of the last portion of this will as originally made by the translation office was slightly inaccurate, but a correct translation of it is to be found in Clause 3 at p. 3 of the supplementary book.
6. The learned Subordinate Judge has expressed the opinion that inasmuch as the property endowed was family property and the waqf became operative only after Madhuri Saran gave his consent to it on his attaining majority, he must be deemed to be one of the founders of the waqf and therefore under Clause 14 of the document he was entitled to modify its conditions. Assuming that the position of Madhuri Saran was one of a founder it is quite clear that he did not in his lifetime profess to make any modification or alteration of the conditions of the deed. He left those terms in fact to be binding on the future successors. All that he can be said to have done was to act contrary to it. It is also doubtful whether such modification or alteration could have been done by one of the three executants only.
7. Under the deed there was no provision for appointing his wife as his successor. His duty was to adopt a boy in his lifetime before attaining the age of 25. But he did not do that, and left a will in favour of his wife limiting her choice by the conditions laid down in para. 12. Without doubt he gave her much wider power to adopt if the two wills left by him are to be read together. In this way he exceeded the conditions which were laid down in the deed of endowment. The logical result, therefore, was that on the death of Madhuri Saran there was in existence no proper successor who was entitled as of right to succeed to this shebaitship under the terms of the original deed of endowment His widow, however, stepped into the place and began to manage the trust property as trustee, and her management has remained undisturbed since 1894, and her position as trustee has not been challenged even in the plaint.
8. In this connexion it would be convenient to dispose of one finding of the Subordinate Judge that Mt. Ram Dei by virtue of having acquired title to the shebaitship by adverse possession is now in a position to create a new line of succession in contravention of the terms of the deed. In our opinion it is very difficult to hold that she acquired adverse possession of the office of the shebait ever since her entry into possession. No doubt there is authority for the proposition that in the absence of any express terms to the contrary the right to the shebaitship or the right to nominate the shebait may devolve on the heir-at-law of the original founder. But here we have in Clause 17 an express provision that if at any time no mutawalli, appointed according to the prescribed directions be alive and in existence then the proper authority should nominate a trustee In the face of such a clear position it is impossible to hold that either the devolution to the shebaitship or the right to nominate a shebait would devolve on the legal heir of the executant. Thus the position of Mt. Ram Dei cannot be considered to have been adverse to any person entitled as of right to succeed to the office.
9. We are further of opinion that even if she has perfected her right as a trustee by means of such adverse possession she can only acquire the rights of a full-fledged trustee and no more. Even then she would in her own capacity as trustee be bound by the directions of the deed of endowment, and cannot claim a right to act contrary to it. We are therefore unable to agree with the view expressed by the Court below that she is in a position to lay down a new line of succession.
10. The position of the plaintiffs, however, is not that of reversioners to the estate of the original founders. So far as their claim to have it declared that the adoption of Gur Saran himself was invalid was concerned, they had a locus standi to maintain the suit and satisfy the Court either that no adoption took place or that the adoptive mother had no authority to adopt or that under the custom of the family such an adoption was invalid. The Court below has found that the wills said to have been executed by Madhuri Saran were duly executed. Those documents do confer an authority on the widow to adopt, and no satisfactory evidence has been produced to show that there is any custom in the family which takes away her right to adopt. Under these circumstances the plaintiffs have not succeeded in showing that the adoption itself was invalid.
11. Even assuming that the widow in adopting Gur Saran has acted in a manner quite contrary to the directions contained in the deed of endowment, it cannot be held that the adoption of Gur Saran per se is illegal and invalid Her act has been in accordance with the directions given by her own husband and those directions did not necessarily limit her choice in any way. She, so far as adopting a boy to herself and her husband is concerned, was in no way bound by the terms laid down by her father-in-law and his brother. The adoption of Gur Saran, having been made under an authority conferred upon her by the husband which was in no way limited, was therefore perfectly valid, and the plaintiffs are not entitled to a declaration that the adoption itself is invalid. The first part of relief A cannot therefore, be granted. In these circumstances it is unnecessary to consider whether the claim for a declaration that the adoption was invalid was within time. The Court below has held that the plaintiffs are entitled to get an extension under Section 14, Lim. Act, and it is not necessary to reverse that finding. The fact is that the plaintiffs are not at all entitled to get this declaration.
12. The latter part of relief A was directed to securing a declaration that the defendant by virtue of the adoption can acquire no right in any of the endowed properties. This when paraphrased means that he cannot by virtue of his adoption claim a right to succeed to the shebaitship after the death of Mt. Ram Dei.
13. The Court below has held that the plaintiffs have no cause of action for claiming this relief. No doubt reversioners have been allowed to come to Court and ask for a declaration that a certain adoption made by a widow was invalid or in fact did not take place. But the position of the reversioners is such that if the widow were to die immediately they would by right succeed to the estate. They are also allowed under Section 42, Specific Belief Act, to claim a declaration that alienations made by a Hindu widow are not justified and would not be binding on the reversioners. But there too the effect of the alienation is to infringe the right of the whole body of the reversioners to succeed to the estate after the death of the widow. The position of the present plaintiffs is by no means similar to that of reversioners. We have already pointed out that in view of the provisions of Clause 17 there would be no actual devolution of shebaitship on any heir-at-law of the founders. The succession to the office would not go by inheritance, but would depend entirely on the selection made by the proper authority, which may be the District Judge. Thus the present plaintiffs have not even a spes successionis such as reversioners possess and they have not even a definite hope that they would themselves be selected by the District Judge, in case there is a vacancy in the office of sebait. They cannot claim to succeed to any right inherent in themselves, but their selection would be a matter of choice and selection by the District Judge. The power of the District Judge to select a mutawalli is not confined even to the nearest reversioner or to the eldest member of the family. He can select anyone from the family whom he considers fit and honest. The position of the plaintiffs therefore is much worse than that of reversioners, and it is very difficult to see how they can be regarded as having any legal character which entitles them to maintain a suit for declaration. They certainly have no vested or contingent right to any property, and (Sic)at best have only a faint hope that the District Judge may when the time arrives happen to select one of them as successor to the sebaitship. In this view of the matter we agree with the Court below that the plaintiffs have no cause of action to maintain a suit for declaration that the present defendant would not be entitled to succeed to the sebaitship after the death of the widow. We have already mentioned that neither in the written statement nor in the deed of adoption is there any assertion that the defendant has by virtue of his adoption become entitled to succeed to the sebaitship. For aught one knows he may not survive the present sebait. In this view of the matter we would hold that the plaintiffs cannot ask this Court to grant them a declaration that the defendant will not be the successor to the sebaitship after the death of the widow. They have no right to this property, and no legal character to maintain such a declaratory suit.
14. As the question has been fought out in the Court below at great length and it is desirable that the remaining issue should be disposed of rather than left out we think it necessary to consider the question whether the widow has in fact acted in a manner contrary to the directions contained in the will. Even if her husband had given her wider power she was not bound to act, inconsistently with the directions of the deed of waqf. The learned advocate for the respondents has contended that the true interpretation of Clause 12, of the deed is that the choice of a boy from the persons belonging to the three classes in the prescribed order of propriety was not mandatory but merely directory, that is to say, that if that condition was broken it would not invalidate the right to succeed. Support is sought from the provisions in Clause 14 where a power was reserved to the executant to make modifications and alterations. The Court below, however, has not accepted this view. Having examined the language of Clause 12 we are unable to accept this contention. The deed laid down the details of the conditions which the mutawalli and manager should on his behalf enter in the will in favour of his wife. It provided that:
if he leaves no son after him his widow shall have power to adopt a boy at first from amongst the descendants of Sah Kundan Lal and Phundan Lal, then from the family of the said Sahs and from the descendants of Mangal Sen and if none of them is available she should adopt a boy whom she could adopt according to the Hindu law.
15. The language of this provision in our opinion is imperative, and it was intended that she should have power to adopt a boy according to the Hindu law only if no boy from the two previously mentioned classes was available. We must, therefore, hold that if the widow proceeded to adopt a different boy while one from either the first or the second class was available she was not acting according to the conditions of the deed of wakf. (The judgment then discussed the evidence on the issue and concluded.) We must accordingly hold that there being no other suitable boy available Mt. Ram Dei was justified in adopting Sah Gur Saran who was her sister's grandson and was eligible to be adopted under the Hindu law. For these reasons we dismiss this appeal with costs.