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Chaudhari S. Afzal HusaIn and After His Death Chaudhari Syed Iqbal HusaIn Vs. Chhedi Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in155Ind.Cas.791
AppellantChaudhari S. Afzal HusaIn and After His Death Chaudhari Syed Iqbal Husain
RespondentChhedi Lal and ors.
Cases ReferredNimai Chand Addya v. Golam Hosein
Excerpt:
muhammadan law - wakf--mutawalli effecting usufructuary mortgage of wakf property with previous sanction of court--mortgage for justifying necessity--validity of--sanction, if can be given retrospectively--fraudulent intent--when can be said to be made out. - - 1 was well aware of the existence of the deed of waqfnama. the mere failure of defendant no. it cannot be argued with any hope of success that the bond of december 14, 1925, purported to terminate the possession in any such manner. the transaction, therefore, was clearly one intended to preserve the waqf property. further we are of opinion from the evidence on the record that the failure of defendant no. 1 to pay the previous debts in this document is a failure which arises from the action of the plaintiff himself. 26. we are.....1. this is a first appeal brought by one chaudhari saiyid afzal husain, the sole plaintiff, and continued after his death by his son, chaudhri saiyid tabal husain, who was defendant no. 2. the contesting respondent, defendant no. 1 is chhedi lai. 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 january ip, 1919, he executed a 'waqf 'alal aulad' that is, waqf for bis descendants of the property dividing the property into two portions. one village mavza 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 waqf property, but the deed of waqf printed on page 57 shows that the 26.....
Judgment:

1. This is a first appeal brought by one Chaudhari Saiyid Afzal Husain, the sole plaintiff, and continued after his death by his son, Chaudhri Saiyid Tabal Husain, who was defendant No. 2. The contesting respondent, defendant No. 1 is Chhedi Lai. 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 January IP, 1919, he executed a 'waqf 'alal aulad' that is, waqf for bis descendants of the property dividing the property into two portions. One village Mavza 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 waqf property, but the deed of waqf printed on page 57 shows that the 26 remaining villages were created a waqf for the benefit of the family of the plaintiff and he was made the first mutawalli with defendant No. 2 to succeed him. When the family should become extinct, there was a gift over for religious and charitable purposes. The waqf property is referred to in the plaint as list A. Paragraph 2 of the plaint sets out that at the time of the execution of the 'waqfnama' one of the villages dedicated, Mama Ajora Buzurg, Mahal Afzal Husain, was hypothecated in lieu of Rs. 5,000 to one Sheo Pal Brahman under a mortgage-deed, dated April 15, 1916. Paragraph 3 states that in order to pay off the aforesaid amount and other amounts which were die 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 'supurdnama' on March 20, 1924. It is to be noted that although the language of the plaint is rather loose, only the 26 villages dedicated to the finally use formed the subject of the 'supurdnama' which is printed on page 97. Paragraph 4 of the plaint sets out the following items and we understand the paragraph to indicate that the defendant No. 1 was to pay off these items:

Rs. a. p.

Amount due to Sheo Pal under

a mortgage-deed 5,000 0 0

'Zar-i-peshgi' on account of lease

of Bisheshar Prasad 3,780 0 0

'Zar-i-peshgi' on account of lease

of Saiyid Tanzim Husain 2,500 0 0

'Zar i peshgi' on account of lease

of Patwari Din 1,800 0 0

Decree for profits held by Muhamad Hamid

Ullah and Mohiuddin 500 0 0

Decree for profits held by

Munshi Abdul Subhan 1,132 3 6

Decree in respect of pay of Ali Sher Khan 500 0 0

2. Paragraph 5 states that the defendant No. 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. Paragraph G 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 No. 1 and that the plaintiff to pay off this sum and other amounts executed a document in favour of defendant No. 1 for Rs. 20,000 under which the consideration was the Rs. 8,844-1-6 already mentioned as due to defendant No. 1, another sum of Rs. 827 also due to defendant No. Rs. 1,132-3-6 due to other persons which was not paid, and a sum of Rs. 8,1556-11 which the document stated was received in cash. In regard to this cash payment, it was pleaded that only Rs. 4,524-13 was received and received by instalments at later dates. It was, therefore, claimed that Rs. 5,80-1-11 were not received out of Rs. 20,000 consideration. The document in question, which is a simple money board is dated December 14, 1925, and is printed at page 12]. Paragraph 7 staffs. '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 No. 1 on February 4,1926, or thereabout. Ultimately on June 15, 1926, defendant No. 1 was declared to be entitled to mate collections with certain conditions, but as he did not comply with those conditions the plaintiff began to make collections.' 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. Paragraph 8 sets out that the defendant No. 4, a daughter of the plaintiff, brought a suit for cancellation of the 'supurdnama' which was decreed by the learned Subordinate Judge on September 14, 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. Paragraph 10 sets out that the 'supurdnama' is invalid and null and void and as defendant No. 1 did not pay any amount there under, he is not entitled to remain in possession. Paragraph 11 sets out that defendant No 1 alleged himself to be entitled to possession also of the property in list B. Paragraph 12 states defendant No. 1 has obtained 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:

3. (a) It may be declared that the document dated March 20, 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'.

4. (b) The plaintiff may be put into possession of the property entered in list (C) by dispossession of defendant No. 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 the defendant No. 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 makeup the 26 villages mentioned in the 'supurdnama'.

6. The written statement of defendant No. 1 was to the effect that the deed of waqf was fictitious and invalid and executed merely to avoid payment of dues due to creditors and to practise fraud upon present and future creditors and was not intended as a valid waqf, that the plaintiff had borrowed the amounts set out in para. 4 of the plaint and had represented to defendant No. 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 March 20, 1924, was executed. Paragraph 24 sets out that mutation was effected for defendant No. 1 in 14 villages and that the plaintiff made collections through his servants and appropriated the entire profits for himself, this when an account was made up in 1932, the sum of Rs. 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 December 14, 1925, and that disputes continued between the parties and on December 18, 1928, the plaintiff out of dishonest motives executed a lease for 5 years of a part of the property in favour of one Tanzim Husain. In para. 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 March 20, 1924, executed by himself in favour of Chhedi Lal, defendant No. 1?

(3) If an estoppel does not bar a plea of the invalidity of the deed of March 20, 1924, was the plaintiff competent validly to execute the said deed in spite of the previous deed of January 18, 1919?

(5) What money, if any, is due to Chhedi Lai, defendant No. 1 under the deeds of March 20, 1924, and December 14, 1925? Is the plaintiff entitled to obtain possession of the disputed property without first paying the dues of Chhedi Lai, defendant No. 1?

(6) Is Chhedi Lai, defendant No. 1 estopped from disputing the validity of the deed of January 18, 1919? If not, is the said deed fictitious?

(7) Does Section 53 of the Transfer of Property Act vitiate the deed of January 18, 1919?

8. The learned Subordinate Judge has held on Issue No. 1 that the plaintiff is estopped from impeaching the validity of the 'spurdnama'. On Issue No. 3 he found that the plaintiff was competent to execute the 'supurdnama.' On Issue No. 5 he found that the plaintiff was not entitled to obtain possession of the property covered by the 'supurdnama' without first paying defendant No. 1. On Issue No. 6 he found that Chhedi Lal was not, estopped from disputing the validity of the waqf and that the deed of waqf was fictitious. On Issue No. 7 he found that the waqfnama was void under Section 53 of the Transfer of Property Act, as being made to defeat the mortgagees and subsequent creditors. The suit was, therefore, dismissed by the lower Court.

9. 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 No. 1 has taken the matter in appeal to their Lordships of the Privy Council. Accordingly the defendant No. 1 made a preliminary objection to this appeal being heard and contended that the hearing should be stayed under Section 10 of the Civil Procedure Code until the decision of their Lordships of the Privy Council.

10. That application was opposed by the appellant and a Bench or 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 waqf as it comes first in point of time. The lower Court considered the validity of the deed of waqf on pp. 35 to 37 and found that 'to all intents and purposes, the alleged 'waqf was a sham and that Afzal Husain was the real owner of the property covered by the alleged 'waqf at the time when the 'supurdnama' was executed and that the plaintiff did not divest himself of the proprietary interest.' One of the criticisms levelled against the waqf nama 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 waqf property.

11. One of these due to Sheo Pal is set out in the plaint. There were also mortgages due to Ahamd Husain and Partab Singh. The plaintiff made various arrangements for the payment of these mortgage debts. On January 8, 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 February of 22, 1918, in favour of Chaudhri Surju Singh in which is a reference to the document in favour of Partab Singh. We do not think that the mere statement in the deed of waqf 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 waqf 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 waqfnama would indicate any fraudulent intent. The defendant No. 1 in taking his supurdnama took it from the plaintiff under the description of mutawalli and defendant No. 1 was well aware of the existence of the deed of waqfnama. Defendant No. 1 accepted that document and did not challenge it in any way and in a suit which was brought in 1926 by defendant No. 1 along with the plaintiff, the plaintiff was described as mutawalli (see page 157). It was only when disputes arose in regard to property and when a daughter of the plaintiff filed her suit in 1927 that the defendant No. 1 changed his mind in regard to the waqfnama 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 waqfnama was a fictitious or fraudulent document and we consider that it complied with the provisions of the Mussalman Waqf Validating Act (Act VI 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 waqfnama that after pawng 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 waqfnama, 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 waqfnama, nor do we think that the waqfnama is invalid under the provisions of Section 53 of the Transfer of Property Act. It is true that there were three mortgages in existence at the time of the execution of the waqfnama, there is, however, nothing to show that the waqfnama 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 waqfnama. Learned Counsel for the appellant pointed out that it was necessary for the respondent to show that fraudulent intention existed on January 18,1919, at the time of the execution of the waqfnama. We are of opinion that no such fraudulent intention has been shown. We, therefore, hold that the waqfnama was a valid document.

12. We now come to the question of the validity or otherwise of the supurdnama of March 20, 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 No. 1 did not make the payments which he undertook to make under this document. The mere failure of defendant No. 1 to carry out the document would not be a reason for the document to be declared null and void. In para. 12of the plaint it was set out that defendant No. 1 obtained a separate bond, that is the simple money bond of December 14, 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

13. and in ground No. 5:

Because the Court below has erred in holding that the deed of December 14, 1995, was an auxiliary deed, on the other hand it wiped off the debt due to the respondent under the deed of March 20, 1921.'

14. 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:

15. (1) Whether the mutawalli was competent to execute the supurdnama, and

16. (2) Whether the supurdnama was terminated by the simple money bond of March 20, 1924?

17. We will deal with the second question first as it is a very small matter. The supurdnama of March 20, 1924, provides for defendant No. 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 Rs. 0-8-6 per month for advances made by defendant No. 1 from his own pocket, the rate being changed to Rs. 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 executants, desire to take back the waqf 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 recovery the waqf property and shall render an account of the income and expenses.

18. In para. 13 it was provided:

When the entire amount or the amounts due under the mortgage zerpeshgi lease money, the amounts of the ruqqas, payable on demand the amounts of the decreases, 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 waqf property, the supurddar will relinquish all the waqf villages.

19. It was, therefore, within the competence of the parties to terminate the possession of defendant No. 1 in accordance with either of those paragraphs. It cannot be argued with any hope of success that the bond of December 14, 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 the defendant No. 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 create by the supurdnama. It is merely a collateral security in favour of defendant No. 1 and does not interfere with the rights under the supurdnama which had existed at the time by which defendant No. 1 was entitled to retain possession of the property until his debts and advances were paid. We, therefore, find that the bond of December 14, 1925, in no way affected the rights of defendant No. 1 under the supurdnama. Learned Counsel argued that if we held that the supurdnama was invalid and that defendant No. 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 deed not apply. We now turn to the main issue of this appeal that is, whether the mutawalli was competent to execute the supurdnama.

20. Learned Counsel for the respondent based his case on the competence of the mutawalli on certain text books of Muhammadan Law, and certain rulings. In Tyabjis Principles of Muhammadan Law, Second Edition, page 555, it is laid down in regard to Shias : AIR1932Cal356 :

According to Shia Law the beneficiaries under a waqf may validly make a lease of the waqf property or otherwise transfer or alienate it for the period during which they are entitled to the benefit of the waqf but so that such lease or transfer or alienation does not prejudice the rights of any succeeding beneficiaries.

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 No. 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 No. 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 No. 2, who is appellant, was his successor as mutawalli according to the deed of waqf, and this son was also an executant of the supurdnama in question. The supurdnama begins: 'We Chaudhri Saiyid Afzal Husain, mutawalli of the waqf, and Chaudhri Saiyid Iqbal Husain, subsequent mutawalli' execute the document. The distinction which was drawn in Tyabji between a transfer for the period during which the mutawalli was entitled to the benefit of the waqf 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 Ameer Ali's Muhammadan Law, Vol. I 3rd Edition of 1904, p. 370, a statement:

The mutawalli is not entitled under any circumstances to create any encumbrance by way of mortgage upon the waqf property without the sanction of the Qazi, nor can the beneficiaries hypothecate waqf property.

21. The distinction is not drawn between a transfer of the income and a transfer of the property. In Mulla's Principles of Muhammadan Law, 10th Edition 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 waqf property or any part thereof unless he is expressly empowered by the deed of waqf to do so. Mulla goes on to state that it has been held in Calcutta in Nimai Chand Addya v. Golam Hossein 3 Ind. Cas. 353 : 37 C. 179 : 11 C.L.J. 317 : 14 C.W.N. 537 that a mortgage of waqf 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 Muhammadan Law in original. The case arose where there was a waqf and certain costs of partition were incurred and the Collector fixed a date for sale of the estate for these costs. The mutwalli made a mortgage of a portion of the waqf 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 pages 191 and 192Pages of 37 c.--[Ed.] 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 Oadi was deemed requisite, primarily with a view to make sure that the loan was necessary, and ia 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 waqf properties.

22. On p. 191Page of A.I.R. 1923. P.C. 66 [Ed.] 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 circumstances.

28. In Sailendranath v. Hade Kaza : AIR1932Cal356 , 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 waqf property unless he is expressly authorised by the deed of waqf to do so. Reference was made with approval to Nimai Chand Addya v. Golam Hossein 3 Ind. Cas. 353 : 37 C. 179 : 11 C.L.J. 317 : 14 C.W.N. 537 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. Sheik Hussein 11 B. 492, it was held in regard to a mortgage of waqf 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.

23. For the appellant reference was made to Askari Hussain v. Chunni Lal : AIR1929All849 ; Ind. Rul. (1930) All 274, where it was held that the District Judge takes the place of the Qazi to sanction transfers of waqf property. Reference was also made to Abdur Rahim v. Narayan Das 71 Ind. Cas. 646; A.I.R. 1923 P.C. 44 at p. 47 : 17 L.W. 509 : 32 M.L.T. 153 : 44 M.L.J. 624 : 25 Bom. L.R. 670; (1923) M.W.N. 441.; 38; Cr. L.J. 242 : 28 C.W.N. 121 50 C. 329 : 50 I.A. 84 (P.C.). In the ruling we find on p. 17:

Their Lordships are of opinion that for an advance of money, otherwise than to satisfy the legitimate needs and purposes of the waqf, no part of the property held in waqf is chargeable either by the settlor or by the Court.

24. Under this dictum the question would arise whether the purpose was one which was for the legitimate needs of the waqf. Learned Counsel also relied on Hamiduddin Ali Shah v. Court of Wards, Nanpara, 18 Ind. Cas. 319 18 Ind. Cas. 319, 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 Hosein 3 Ind. Cas. 353 : 37 C. 179 : 11 C.L.J. 317 : 14 C.W.N. 537 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 waqf. 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 co-sharers 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 intended to preserve the waqf 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.

25. For the appellant the argument is advanced that the respondent No. 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 No. 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 No. 1 from obtaining possession or making collections. This stale of affairs is shown by the accounts for 1331 and 1332 Fasli which formed the subject of the bond of December 14, 1925. There was a rendering of accounts by defendant No. 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. 8,444-1-8 were due to defendant No. 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 196 for 1333 Fasli which show that an amount was due to defendant No. 1 for that year of Rs. 4,877-2 and on p. 497 for the year 1331 Fasli which show that an amount was due to defendant No. 1 for that year of Rs. 4317-2-3. These accounts were proved by defendant's witness Bhagwandas, the general agent, on p. 26 where he states:

The papers exhibited 00 are the extract, It repared from my master's siahas of 1333, 1331 and 1385 Fasli. The extract is correct. I have on me the original siahas from which I prepared the extract.

26. We are satisfied, therefore, that the supurdnama has not been shown to be invalid.

27. 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 estoppels in Section 115 of the 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 waqf and that his son is the subsequent mutawalli and that they execute the supurdnama transferring possession to defendant No. 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 afterwards1 that the plaintiff brought the present suit on May 11, 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 conies within the language of Section 115 of the Evidence Act. The argument of learned Counsel for appellant was that because the plaintiff was under the Muhammadan Law not competent to execute this supurdnama, therefore, the provisions of Section 115 of the 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 rn-hr the provisions of the Muhammadan Las provided sanction is given, and we consider that the sanction can be retrospectively applied by this Court .

28. In the seventh ground of appeal it was urged that the Court below was bound to find what money was due to Chhedi Lai, defendant No. 1, at the date of the decree. This was a reference to Issue No. 5. We have referred to the bond of December 14, 1925, under which there was an admission that for the first two rears 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. 8 of his plaint alleged that his admission in that bond as regards the payment of Rs. 8,196-11 in cash should not be accepted against, him and that actually only Rs. 4.524-13 was received by him out of that amount and also that the sum of Rs. 1,132-6-6 was not paid too the persons. We have already referred to the accounts for 1333 and 1334 Fasli which shows that other large sums were due to defendant No. 1. The claim in the written statement is that not less than Rs. 20,000 was due to defendant No. 1. We do not think that there is any necessity to ascertain the exact sum which is due to defendant No. 1 as in our opinion 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 No. 1. If and when the plaintiff brings a suit for that purpose in our opinion, 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.

29. For these reasons we dismiss this first appeal with costs.


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