1. This is a first appeal brought by one Chaudhari Saiyid Afzal Husain the sole plaintiff and continued after his death, by his son, Chaudhari Saiyid Iqbal Husain, who was defendant 2. The contesting respondent, defendant 1 is Chhedi Lal. The plaint sets out that the plaintiff, Afzal Husain, was the owner in possession of the-property in the list attached to the plaint and that on 18th January 1919, he executed a 'wakf' 'alal aulad' that is. wakf for his descendants of the property dividing the property into two portions. One village Mauza Samorai, Mahal Rustam Ali, and certain houses and groves were dedicated for religious and charitable purposes. The plaint does not mention further in regard to the other wakf property, but the deed, of wakf printed on p. 57 shows that the 26 remaining villages were created, a wakf for the benefit of the family of the plaintiff and he was made the first mutawalli with defendant 2 to succeed him. When the family should become extinct, there was a gift over for religious and charitable purposes. The wakf property is referred to in the plaint as list A. Para. 2 of the: plaint sets out that at the time of execution of the 'wakfnama' one of the villages dedicated Mauza Ajora Buzurg Mahal Afzal Husain, was hypothecated in lieu of Rs. 5,000 to one Sheo Pal Brahman under a mortgage-deed, dated 15th April 1916. Para. 3 states that in order to pay off the aforesaid amount and other amounts, which were due by the plaintiff, the plaintiff desired to mortgage with possession villages given below to Chhedi Lal and that a mortgage-deed was executed in the shape of a deed called a 'superdnama' on 20th March 1924. It is to be noted that although the language of the plaint is rather loose, only the 26 villages dedicated to the family use, formed the subject of the 'superdnama' which is printed on p. 97. Paragraph 4 of the plaint sets out the following items and we understand the paragraph to indicate that defendant 1 was to pay off these items:
Rs. a. p.Amount due to Sheo Pal under amortgage-deed .. .. 5,000 0 0'Zaripeshgi' on account of lease ofBisheshar Prasad .. .. 3,780 0 0'Zaripeshgi' on account of lease ofSaiyid Tanzim Husain .. 2,500 0 0'Zaripeshgi' on account of lease ofPatwari Din .. .. 1,800 0 0Decree for profits held by MuhamadHamid Ullah and Mohi Uddin .. 600 0 0Decree for profits held by MunshiAbdul Subhan .. .. 1,132 3 6Decree in respect of pay of AliSher Khan .. .. 500 0 0
3. Paragraph 5 states that defendant 1. did not pay any of these items, that the plaintiff continued in possession and his servants made collections and deposited the amount at the place of the defendant and the defendant sent the amount to meet expenses. Para. 6 sets out that in September 1925, an account was made between the parties, according to which a sum of Rs. 8,844-1-6 was found due to defendant 1 and that the plaintiff to pay off this sum and other amounts executed a document in favour of defendant 1 for Rs. 20,000 under which the consideration was the Rs. 8,844-1-6 already mentioned as due to defendant 1, another sum of Rs. 827 also due to defendant 1, Rs. 1,132-3-6 due to other persons which was not paid, and a sum of Rs. 8,196-11-0 which the document stated was received 'in cash. In regard to this cash payment, it was pleaded that only Rs. 4,524-13-0 was received and received by instalments at later dates. It was therefore claimed that Rs. 5,804-11-0 were not received out of Rs. 20,000 consideration. The document in question which is a simple money bond is dated 14th December 1925, and is printed at p. 121. Para. 7 states:
The plaintiff had assigned the amount in order to save the property from being sold by auction and when that amount was not paid off the plaintiff took objection to the application for removal of 'lambardar' which was made on behalf of defendant 1 on 4th February 1926 or thereabout. Ultimately on 25th June 1926 defendant 1 was declared to be entitled to make collections with certain conditions, but as he did not comply with those conditions, the plaintiff began to make collections.
4. This is a somewhat cryptic paragraph, but apparently it states that the 'supurdnama' was executed in order to save the property from being sold by auction and that a dispute took place in regard to possession. Para. 8 sets out that defendant 4, a daughter of the plaintiff brought a suit for cancellation of the 'supurdnama' which was decreed by the learned Subordinate Judge on 14th September 1927. We may note that that decree was upheld by this Court and that an appeal is pending before their Lordships of the Privy Council. Para 1.0 sets out that the 'supurdnama' is invalid and null and void and as defendant, 1 did not pay any amount thereunder, he is not entitled to remain in possession. Para. 11 sets out that defendant 1 alleged himself to be entitled to possession also of the property in list B. Para. 12 states defendant 1 has obtained a separate bond in lieu of the money which was due to him. Under these circumstances, he has no right to remain in possession in lieu of any amount due to him when he has already obtained a separate bond in lieu thereof. The relief asked for was : (a) It may be declared that the document dated 20th March 1924, is utterly invalid and null and void, and that the plaintiff is in lawful possession of the property given in list (B) as a 'mutawalli; (b) the plaintiff may be put into possession of the property entered in list (C) by dispossession of defendant 1.
5. Now. it will be noted that no allegations are made in the plaint as to why the 'supurdnama' is invalid and null and void. These defects in the plaint are remedied by arguments of counsel for the appellant so far as it is possible. It is to be further noted that the plaint is defective in not explaining anything in regard to list (C) for which the plaintiff asks for possession. It is however the case of the appellant that in the 14 villages of list (C) mutation was effected for defendant 1 on the 'supurdnama' and for that reason the suit for those 14 villages is for possession. In the 12 villages in list (B) mutation was not effected and the name of the plaintiff remains. List (B) of 12 villages and list (C) of 14 villages, make up the 26 villages mentioned in the 'supurdnama.'
6. The written statement of defendant 1 was to the effect that the deed of wakf was fictitious and invalid and executed merely to avoid payment of dues to creditors and to practise fraud upon present and future creditors and was not intended as a valid wakf, that the plaintiff had borrowed the amounts set out in para. 4 of the plaint and had represented to defendant 1 that the plaintiff wanted to go on a pilgrimage to Karbala Maula and that the son of the plaintiff was inexperienced:
therefore he requested the contesting defendant to manage his property, and so far as possible, to try to pay off his debts
and accordingly the 'supurdnama' of 20th March 1924, was executed. Paragraph 24 sets out that mutation was effected for defendant 1 in 14 villages and that the plaintiff made collections through his servants and appropriated the entire profits for himself, that when an account was made up in 1932, the sum of Rupees 8,844-1-6 was found due to the contesting defendant by the plaintiff and the plaintiff and his son admitted this as correct and affixed their signatures on the simple money bond for Rs. 20,000 on 14th December 1925, and that disputes continued between the parties and on 18th December 1928, the plaintiff out of dishonest motive executed a lease for five years of a part of the property in favour of one Tanzim Husain. In paragraph 28 it is alleged that more than Rs. 20,000 are still due to contesting defendant. In para. 30 it is alleged that the suit by the daughter of the plaintiff was in collusion with the plaintiff. It was further urged in para. 31 that the plaintiff was bound by the documents executed by him and in para. 32 an estoppel is pleaded.
7. Several issues were framed of which the following are important for the decision of the appeal : (1) Is the plaintiff estopped from impeaching the validity of the deed of 20th. March 1924, executed by himself in favour of Chhedi Lal defendant 1? (3) If an estoppel does not bar a plea of the invalidity of the deed of 20th March 1924, was the plaintiff competent (sic) to execute the said deed in spite of the previous deed of 18th January 1919? (5) What money, if any is due to Chhedi Lal defendant 1, under the deeds of 20th March 1924, and 14th December 1925? Is the plaintiff entitled to obtain possession of the disputed property without first paying the dues of Chhedi Lal defendant 1? (6) Is Chhedi Lal defendant 1 estopped from disputing the validity of the deed of 18th January 1919? If not, is the said deed fictitious? (7) Does Section 53, T.P. Act, vitiate the deed of 18th January 1919?
8. The learned Subordinate Judge has held on issue 1 that the plaintiff is estopped from impeaching the validity of the 'supurdnama.' On issue 3 he found that the plaintiff was competent to execute the 'supurdnarna.' On issue 5 he found that the plaintiff was not entitled to obtain possession of the property covered by the 'supurdnama' without first paying defendant 1. On issue 6 he found that Chhedi Lal was not estopped from, disputing the validity of the wakf and that the deed of wakf was fictitious. On issue 7 he found that the wakfnama was void under Section 53, T.P. Act, as being made to defeat the mortgagees and subsequent creditors. The suit was therefore dismissed by the lower Court. The plaintiff has appealed against these findings. After the decision of the lower Court there was a decision of a, Bench of this Court in the appeal against the decree in favour of the daughter of the plaintiff. That decree was upheld by a Bench of this Court and defendant 1 has taken the matter in appeal to their Lordships of the Privy Council. Accordingly defendant 1 made a preliminary objection to this appeal being heard and contended that the hearing should be stayed under Section 10, Civil P.C. until the decision of their Lordships of the Privy Council.
9. That application was opposed by the appellant and a Bench of this Court has held that the appeal should be decided without being stayed under Section 10. Accordingly the appeal has been heard by us. We first of all consider the question of the validity of the deed of wakf as it comes first in point, of time. The lower Court considered the validity of the deed of wakf on pp. 35 to 37, and found that:
To all intents and purposes, the alleged 'wakf' was a sham and that Afzal Husain was the real owner of the property covered by the alleged 'wakf' at the time when the 'supurdnama' was executed and that the plaintiff did not divest himself of the proprietary interest.
10 One of the criticisms levelled against the wakfnama is that it is stated that the endowed property was free from all sorts of liens, debts and liabilities. This was not correct as at the time there were three mortgages on the wakf property. One of these due to Sheo Pal is set out in the plaint. There were also mortgages due to Ahmad Husain and Partap Singh. The plaintiff made various arrangements for the payment of these mortgage debts. On 8th January 1919, there was a sale-deed printed on p. 53, by Afzal Husain to Mahabir Singh. In it he provided for the payment of the mortgage of Ahmad Husain and also of a promissory note due to Ahmad Husain and also for a mortgage of 22nd February 1918 in favour of Chaudhri Surju Singh in which is a reference to the document in favour of Partap Singh. We do not think that the mere statement in the deed of wakf that the property was free from all sorts of debts and liens, although it may be incorrect, indicates that there was any fraudulent intent. We do not think that the execution of the deed of wakf could affect the rights of the previous mortgagees or that it was intended to affect their rights. We do not think that the mere fact that the mutawalli subsequently made a number of leases for five years which he was authorized to do under the wakfnama would indicate any fraudulent intent. Defendant 1 in taking his supurdnama took it from the plaintiff under the description of mutawalli and defendant 1 was well aware of the deed of wakfnama. Defendant 1 accepted that document and did not challenge it in any way and in a suit which was brought in 1926 by defendant 1 along with the plaintiff, the plaintiff was described as mutawalli (see p. 157). It was only when disputes arose in regard to property and when a daughter of the plaintiff filed her suit in 192J that defendant 1 changed his mind in regard to the wakfnama and put forward a case that it was a fictitious document. We do not agree with the lower Court and we consider that it has not been shown that the wakfnama was a fictitious or fraudulent document and we consider that, it complied with the provisions of the Mussalman Wakf Validating Act (6 of 1913) and that it is valid. A further objection was taken in regard to accumulation of income. It was provided in para. 4 of the wakfnama that after paying off Government dues and maintenance allowance and village expenses, the rest of the income should be employed in purchasing other property. In a table attached at the end of the wakfnama, it was stated that 20 per cent would be available for this purpose. This estimate was extremely optimistic as no amount has actually been available in any year for such purpose. We do not think that the provision would invalidate the wakfnama, nor do we think that the wakfnama is invalid under the provisions of Section 53, T.P. Act. It is true that there were three mortgages in existence at the time of the execution of the wakfnama, there Is however nothing to show that the wakfnama was intended to be a fraudulent transfer which would affect the interest of the mortgagees. In our opinion the interest of the mortgagees could not have been affected by this subsequent transaction, nor is it shown that any of the creditors at that time or the subsequent creditors would have been defrauded by the wakfnama. Learned Counsel for the appellant pointed out that it was necessary for the respondent to show that fraudulent intention existed on 18th January 1919 at the time of the execution of the wakfnama. We are of opinion that no such fraudulent intention has been shown. We therefore hold that the wakfnama was a valid document.
11. We now come to the question of the validity or otherwise of the supurdnama of 20th March 1924. As already observed the plaint does not give any ground on which the plaintiff asks that this document should be declared invalid and null and void. The plaint sets out subsequent transactions and alleges that defendant 1 did not make the payments which he undertook to make under this document. The mere failure of defendant 1 to carry out the document would not be a reason for the document to be declared null and void. In para. 12 of the plaint it was set out that defendant 1 obtained a separate bond that is the simple money bond of 14th December 1925, and had no right to remain in possession. It is suggested that this obtaining of a separate bond in some way made the supurdnama null and void. We consider that the plaint was defective in not expressing the grounds on which the relief was based. When we come to the grounds of appeal we find the allegation in the eighth ground:
Because the deed of supurdnama being not within the competence of the mutawalli, the Court below would have in any case passed a decree for possession subject to the payment of any sum if found due to the respondent.
and in ground No. 5:
Because the Court below has erred in holding that the deed of 14th December 31925, was an auxiliary deed; on the other hand it wiped off the debt due to the respondent under the deed of 20th March 1924.
12. These two grounds give the basis on which the appeal has been argued in regard to the validity of the supurdnama. The questions therefore are : (1) Whether the mutawalli was competent to execute the supurdnama, and (2) Whether the supurdnama was terminated by the simple money bond of 20th March 1924? We will deal with the second question first as it is a very small matter. The supurdnama of 20th March 1924, provides for defendant 1 taking possession of 26 villages and making certain payments to previous debtors of the mutawalli and managing the property and making payments of Rs. 1,600 every six months to the mutawalli and his son and making advances for the marriage of the daughters of the mutawalli (para. 10). These payments were to come partly from the income of the property and in para. 3 there, is a provision for the rate of interest of Re. 0-8-6 per month for advances made by defendant 1 from his own pocket the rate being changed to Re. 0-9-0 after five years. This interest was not to be compound. In para. 12 it was provided:
If without the payment of the amounts due to the aforesaid persons, we, the executant desire to take back the wakf villages from the supurdgi of the said amin, we shall pay to the supurddar whatever amounts he might have paid up to that time to the persons mentioned above, or any amount which he might have paid on our account and in respect whereof he might possess a receipt together with interest at the rate mentioned above. In such a case the supurdar shall reconvey the wakf property and shall render an account of the income and expenses.
13. In para. 13 it was provided:
When the entire amounts or the amounts due under the mortgage zerpeshgi lease money, the amounts of the rukkas, payable on demand, the amounts of the decrees, and also the amounts which the supurddar might have paid from his own pocket together with interest, etc., thereon, have been fully paid off from the profits and income of the wakf property, the supurddar will relinquish all the wakf villages.
14. It was therefore within the competence of the parties to terminate the possession of defendant 1 in accordance with either of those paragraphs. It cannot be argued with any hope of success that the bond of 14th December 1925, purported to terminate the possession in any such manner. There is no reference in that bond to the termination of possession at all. The bond merely sets out that accounts had been taken for the years 1331 and 1332 Fasli and a sum of money was found due and further advances were due and that the entire amount of Rs. 20,000 would be repaid in eight years with interest at Re. 0-8-6 per month till five years and Re. 0-9-0 after five years and with compound interest at yearly rests. Learned Counsel for appellant contends that this document provides defendant 1 with a personal remedy and that he could sue on this document for the amount in question. That may be so, but the document does not purport to terminate the interest created by the supurdnama. It is merely a collateral security in favour of defendant 1 and does not interfere with the rights under the supurdnama which had existed at the time by which defendant 1 was entitled to retain possession of the property until his debts and advances were paid. We therefore find that the bond of 14th December 1925 in no way affected the rights of defendant 1 under the supurdnama. Learned Counsel argued that if we held that the supurdnama was invalid and that defendant 1 was entitled to retain possession until he was paid then this document would amount to a payment. We do not consider that the execution of a collateral security does amount to a payment and in the hypothetical case assumed by counsel his argument does not apply. We now turn to the main issue of this appeal that is, whether the mutawalli was competent to execute the supurdnama.
15. Learned Counsel for the respondent based his case on the competence of the mutawalli on certain text books of Mahomedan law, and certain rulings. In Tyabji's Principles of Mahomedan Law, Edn. 2, p. 555. it is laid down in regard to Shias para. 464 (2):
According to Shia Law the beneficiaries under a wakf may validly make a lease of the wakf property or otherwise transfer or alienate it for the period during which they are entitled to the benefit of the wakf, but so that such lease or transfer or alienation does not prejudice the rights of any succeeding beneficiaries.
16. The plaintiff was admittedly a Shia. For the respondent the contention is that under the Shia Law a mutawalli is entitled to transfer the usufruct of the property although he is not entitled to transfer the ownership of the property by sale or by mortgage which might end in a decree for sale. Considerable argument was made in regard to the supurdnama in question and in part of the case for respondent; it is argued, that the supurdnama is something different from, a usufructuary mortgage, that it was a kind of agreement by which defendant 1 was to manage the property during the absence of the plaintiff. We consider that the document cannot be regarded as a contract of management. The provisions in the document are that possession is to be taken from Rabi, 1331 Fasli by defendant 1 and that he is to pay certain sums of money and to retain possession until those sums of money are paid back to him. We consider that these conditions make the document a usufructuary mortgage within the definition of the Transfer of Property Act. The question therefore is whether a mutawalli who is a Shia may execute a usufructuary mortgage, and whether in such a case the transaction will be valid during the lifetime of the executants. It is to be noted that although the plaintiff is now dead his son defendant 2, who is appellant was his successor as mutawalli according to the deed of wakf, and this son was also an executant of the supurdnama in question. The supurdnama begins:
We, Chaudhri Saiyid Afzal Husain, mutawalli of the wakf, and Chaudhri Saiyid Iqbal Hussain, subsequent mutawalli,
execute the document. The distinction which was drawn by Tyabji between a transfer for the period during which the mutawalli was entitled to the benefit of the wakf and a transfer or alienation which would prejudice the rights of succeeding beneficiaries has not, been so carefully drawn in other text books. We find in Ammer Ali's Mahomedan Law, Vol. 1, Edn. 3 of 1904, p. 370, a statement:
The mutawalli is not entitled under any circumstances to create any encumbrance by way of mortgage upon the wakf property without the sanction of Kassi, nor can the beneficiaries hypothecate wakf property.
17. The distinction is not drawn between a transfer of the income and a transfer of the property. In Mulla's Principles of Mahomedan Law, Edn. 10 of 1933, on p. 151 it is stated that a mutawalli has no power without the permission of the Court to mortgage, sell or exchange wakf property or any part thereof unless he is expressly empowered by the deed of wakf to do so. Mulla goes on to state that it has been held in Calcutta in Nimai Chand Addya v. Golam Hossein (1910) 37 Cal. 179, that a mortgage of wakf property though made without the previous sanction of the Court may be retrospectively confirmed by the Court and that the mortgage without the previous leave of the Court is not void ab initio. In this ruling there was a full consideration of the texts of Mahomedan law in original. The case arose where there was a wakf and certain costs of partition were incurred and the Collector fixed a date for sale of the estate for these costs. The mutawalli made a mortgage of a portion of the wakf estate and of his own property to raise money to avert the impending sale. The mortgage therefore was created under grave necessity of an urgent nature. Sanction was not given for the mortgage. On pp. 191 and 192 the Court drew a distinction between those cases where the income alone is pledged and those cases where there was a sale of the property by the mutawalli. The Court held on p. 189:
It is but rational to hold that the approval of the Cadi was deemed requisite, primarily with a view to make sure that the loan was necessary, and in this view approval, antecedent or subsequent, ought to be equally effectual. Tested in the light of these principles, it is clear that in the case before us the mortgage ought to be treated as a valid charge upon the wakf properties.
18. On p. 191 it was stated:
It is sufficient for us to observe that judicial pronouncements of the highest authority are to be found in the reports in support of the view that not the corpus but the income alone can be pledged under such circumstance?.
19. In Sailendranath v. Hade Kaza 1932 Cal. 356, which was also a case which referred to Shias, there was a further consideration of this question, and it was held that a mutawalli differs from shebait or a mahant and has no power without the permission of the Court to mortgage, sell or exchange wakf property unless he is expressly authorized by the deed of wakf to do so. Reference was made with approval to Nimai Chand Addya v. Golam Hossein (1910) 37 Cal. 179, where it was held that a mortgage made by a mutawalli without the previous sanction of the Court is not void if made for a justifying necessity and may be retrospectively confirmed by the Court. In Amrit Lal kalidas v. Sheikh Hussein (1887) 11 Bom. 492, it was held in regard to a mortgage of wakf property that the plaintiff acquired no right under his mortgage which would extend beyond the lifetime of his mortgagors. This also supports the case for the respondent. For the appellant reference was made to Askari Hussain v. Chunni Lal 1929 All. 849. where it was held that the District Judge takes the place of the qazi to sanction transfers of wakf property. Reference was also made to Abdur Rahim v. Narayan Das 1923 P.C. 44. In the ruling we find on p. 47:
Their Lordships are of opinion that for an advance of money, otherwise than to satisfy the legitimate needs and purposes of the wakf, no part of the property held in wakf is chargeable either by the settlor or by the Court.
20. Under this dictum the question would arise whether the purpose was one which was for the legitimate needs of the wakf. Learned Counsel also relied on Hamiduddin Ali Shah v. Court of Wards, Nanpara (1913) 16 O.C. 109, a ruling of the Court of the Judicial Commissioner in Oudh. That ruling dealt with the case of a simple mortgage and not of a usufructuary mortgage, and it was held that such a mortgage would be invalid without previous sanction. On a review of all these rulings we are of the opinion that the distinction drawn in Nimai Chand Addya v. Golam Hossein (1910) 37 Cal. 179, is a distinction which we should follow and that in the present case the validity of the mortgage depends on whether we consider that the usufructuary mortgage was one which should have been sanctioned by the District Judge if an application had been made to him previous to the execution of this supurdnama. Now, the plaint sets forth the circumstances under which the supurdnama was executed. The plaint admits that it was executed in order to pay off the amount due to Sheopal under the mortgage-deed which he held over the property which was wakf. That mortgage-deed was a simple mortgage and it was open to Sheopal to bring a suit for sale of the property if he was not paid. In para. 4 of the plaint three zarpeshgi leases are set out, all of parts of the mortgaged property, which the mutawalli desired should be paid off. That paragraph also mentions three decrees for profits which were held by cosharers against the mutawalli. It is clear that the encumbrances were on the mortgaged property and were encumbrances which it was in the interest of that property to liquidate. The transaction therefore was clearly one in-!tended to preserve the wakf property. Under these circumstances we have no doubt that a District Judge would have acted correctly in giving sanction for the supurdnama. Another point to be noted is that compound interest on the mortgage-deed of Sheopal was accumulating. By the usufructuary mortgage in question the accumulation of interest under the simple mortgage and the decrees was prevented and the transaction would therefore have, been beneficial to the dedicated property. We consider therefore that the transaction was one which should have received sanction.
21. For the appellant the argument is advanced that respondent 1 did not actually pay off any of these previous charges. We consider however that, the question we have to examine is what was the state of affairs at the time when sanction would have been the subject of an application. The subsequent conduct of the parties would not have been known then to the District Judge and therefore could not have influenced him. Further we are of opinion from the evidence on the record that the failure of defendant 1 to pay the previous debts in this document is a failure which arises from the action of the plaintiff himself. In the plaint the plaintiff himself admits that he continued in possession of the property and prevented defendant 1 from obtaining possession or making collections. This state of affairs is shown by the accounts for 1331 and 1332 Fasli which formed the subject of the bond of 14th December 1925. There was a rendering of accounts by defendant 1 to the plaintiff as he was bound to do under the supurdnama, and it was admitted by the plaintiff and his son that no less than Rs. 8,444-1-6 were due to defendant 1 for the first two years of his tenure under the supurdnama. Under these circumstances it could not be expected that the supurdnama bound the defendant to supply further large sums from his own pocket for the purpose of paying off the previous debts. For the next two years we have accounts printed on pp. 495 and 496 for 1333 Fasli which, show that an amount was due to defendant 1 for that year of Rs. 4,877-2-0 and on p. 497 for the year 1334 Fasli which show that an amount was due to defendant 1 for that year of Rupees 4,317-2-3. These accounts were proved by defendant's witness Bhagwandas, the general agent, on p. 26 where lie states:
The papers exhibited OO are the extract I prepared from my master's siahas of 1333, 1834 and 1385 Fasli. The extract is correct. I have on me the original siahas from which I prepared the extract.
22. We are satisfied therefore that the supurdnama has not been shown to be invalid. We now proceed to deal with the question of estoppel of the plaintiff. The lower Court has held that the plaintiff was estopped from denying the validity of the supurdnama. That estoppel is claimed under the general law of estoppel in Section 115, Evidence Act, which provides that when one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing. In the supurdnama the recital states that the plaintiff is mutawalli of the wakf and that his son is the subsequent mutawalli and that they execute the supurdnama transferring possession to defendant 1 of the village in question. That document amounts to a representation that the plaintiff as mutawalli was competent to make that transfer. The document was acted upon and possession was transferred and sums of money were received by the plaintiff under this document. The receipt of the sums of money was admitted. It was not for a number of years afterwards that the plaintiff brought the present suit on 11th May 1928. For that period the plaintiff acquiesced in the supurdnama. He has now come forward and the argument advanced on his behalf is that he was not competent as mutawalli to execute the supurdnama. Clearly the case comes within the language of Section 115, Evidence Act. The argument of learned Counsel for appellant was that because the plaintiff was under the Mahomedan law not competent to execute this supurdnama therefore the provisions of Section 115, Evidence Act, would not apply to him. In our view this proposition of law is incorrect as it is enunciated and also because we consider that the plaintiff can validly execute the supurdnama under the provisions of the Mahomedan law provided sanction is given, and we consider that the sanction can be retrospectively applied by this Court.
23. In the seventh ground of appeal it was urged that the Court below was bound to find what money was due to Chhedi Lal defendant 1, at the date of the decree. This was a reference to issue 5. We have referred to the bond of 14th December 1925, under which there was an admission that for the first two years Rs. 8,444-1-6 was due on the accounts and a further sum was taken making Rs. 20,000 in all. The plaintiff in para. 6 of his plaint alleged that his admission in that bond as regards the payment of Rupees 8-196-11-0 in cash should not be accepted against him and that actually only Rs. 4,524-13-0 was received by him out of that amount and also that the sum of Rs. 1,132-6-6 was not paid to other persons. We have already referred to the accounts for 1333 and 1334 Fasli which shows that other large sums were due to defendant 1. The claim in the written statement is that not less than Rs. 20,000 was due to defendant 1. We do not think that there is any necessity to ascertain the exact sum which is due to defendant 1 as the plaintiff has failed to show that he has any right to possession in the manner in which he asks, that is by a declaration that the supurdnama is null and void. The plaintiff has not sued for possession of the property on payment of whatever sum is due to defendant 1. If and when the plaintiff brings a suit for that purpose it will then be proper for the Court to go into that question and ascertain the exact sum which is due, but the present suit is merely one for a declaration of nullity and in our opinion that question does not arise.
24. For these reasons we dismiss this first appeal with costs.