1. This is an appeal preferred against the decree and judgment of the learned Subordinate Judge of Mayuram in O. S. No. 77 of 1951.
2. The facts are:- Muhammad Abdul Kadir Ma-lumiar created a private trust on.19-11-1918 i.e. Bab-sequent to the Mussalman Wakf Validations Act of 1913. The Wakf comprised of Ac.12.80 cents of land near Nagore, portion of a house bearing door No. 3 in Nagore Town, and cooking vessels etc., men. tioned in Wakf Deed. The trust was created for the purpose of meeting the expenses of a Mouluth to be performed in the month of Rablulavul when 40 marakkals of rice should be cooked and distributed to relatives, friends and the poor and another Mouluth to be performed in the Mohurram month of each year in the Hussainia Moulath. khana belonging to the settlor when 25 marakkals of rice have to be cooked and distributed to poor muslims.
This poor feeding is a valid object of a Wakf: Baillie (1) 550; Hidaya 240; Fatma Bibi v. Advocate-General of Bombay, ILR 6 Bom 42 (A); Assoo-bai v. Noorbal, 8 Bom LB 245 (B); Keetyan v. Ravuthan, ILR 35 Bom 681 . The vessels were for use oh those occasions and it is provided that at the time of the Mouluths the entire house referred to above was to be vacated by the persons occupying the portion. The expenses have to te met from out of the income of the lands after paying the melwaram due to the Nagore Durgah.
The wakf deed also provided that 3/4 ths of the net income from the lands was to be spent for the trust, but, in order to provide for the due performance of the trust, in years when there may be a failure of crops, a reserve-fund was to be kept sufficient to enable the trust being performed, for one year; and, subject to the said provision being made for the regular performance of the charity every year, one-fourth of the income was to be distributed among the founder's Santhathi, male end female.
The first defendant, the eldest son of the dedicator, and the second defendant, his sons-in-law, were constituted trustees, but after them, or even during the life-time, any Santhathi of the settlor, who was a male, who was a proper person, and who was capable of performing the charity, could be the trustee. And, any trustee, who misconducted himself, could be removed from office, at the instance of a Santhftthi of the settlor. There are other terms prohibiting alienation and gifting of the Wakf property and for building up of reserves.
Thus this was a permanent dedication by a Muslim, of properties partially for the maintenance and support of his family children and descendants and for purposes recognised by Mussalman law - religious, pious or charitable. Ahmed v. Julaiha Bivi : AIR1947Mad176 (Patanjali Sastri and Bell JJ.); VssucJeva Bao v. G. K. Kangai : AIR1952Mad650 High Court (to which Govinda Menon J. was a party); Abdur Rahim v. Narayan Das. ILR 50 Cal 329 : AIR 1923 PC 44 (E); Mahommed Ahsanulia v. Amar Chand ILR 17 Cal 498 ; Abdul Fata v. Rasamaya, ILR 22 Cal 619 ; Alima Ammal v. Mohammed Hussain Marcair, Appeal No. 198 of 1946 (Govinda Menon and Chandra Red-di JJ.) dated 27-3-1951 (H) where a similar wakf by a Malumier from East Tanjore came up for consideration.
2. (a) This Abdul Kadir Malumlar so long as he was alive was carrying out the terms of the wakf deed. Subsequently after his death, according to the plaintiff, what happened was as follows. The first and the second defendants colluding with the sixth defendant purposely allowed arrears of rentto the Nagore Durgah to accrue when the nanjalands were fetching 130 kalams of paddy as thetenants' share, and a fraudulent revenue sale washeld in 1839 and the bulk of the properties eventhen worth about Rs. 5,000/- and now worth Rs. 15,000/- was sold for Rs. 401/-. This included abungalow in item 1 and the tank which could notbe sold for arrears under the Madras Estates LaudAct. ' .
After the said revenue sale of the bulk of the properties, defendants 1 and 2 purported to convey by a private sale the remaining properties covered by the D and E Schedules to the plaint to the self-same auction purchaser viz., Haja Abdul Hameed Sahib. This Haja Abdul Hameed Sahib -died four years ago and the third defendant la widow and legal representative. This Haja Abdul Hameed Sahib in his turn purported to make a wakf of the properties which he had purchased, prescribing similar celebrations and made the fourth defendant his trustee. The fifth defendant Is the daughter of the first defendant who has purported to gift to her a portion of the house. No. 3 as stridhanam on the occasion of her marriage in September 1946, entirely overlooking the terms of the wakf deed prohibiting any alienation or gift.
In these circumstances the plaintiff, who is the son of the founder of the trust and is In the line of trustee appointed by the founder and interested in seeing that the properties are not lost to the trust and who is also a beneficiary of the surplus one-fourth which has to be distributed by the trustee amongst the heirs of the original founder, has filed this suit in 1951 in the pauper form alleging that on account of his suffering from mental illness he came to know of these alienations about one year prior to the filing of this suit, properties mentioned in B, C, D, E and F Schedules to the trust created by the plaintiff's father as per wakfnama dated 19-11-1918. The suit is stated to be not barred under S. 10 of the Indian Trusts Act and that even otherwise It had been instituted within a year of the plaintiff's knowledge of the fraudulent alienations.
3. The contest raised by the contesting defendants is reflected in the following Issues:
1. Did the whole of B, D and E Schedule properties belong to Muhammad Atadui Kadir Ma lumiar?
2. Is the sale in E. p. No. 27 of 1938 on the file of the Sub-Collector's Court liable to be set aside for any of the reasons set out in the plaint?
3. Was the O Schedule property not liable to be sold by the Revenue Court?
4. Is the sale of O and E Schedule properties to the third defendant's husband by defendants 1 and 2 valid and binding on the trust?
5. Has the plaintiff right to sue?
6. Is the suit, as framed, unsustainable?
7. Is the suit in time?
8. Is the suit barred under S. 47, Civil P. C.?
9. Is the suit barred under S. 92, Civil P. C.?
10. To what relief is the plaintiff entitled?
4. The learned Subordinate Judge found under issue 1 that B, D and E Schedules belonged to the trust excluding Ac. 2-19 -cents covered by Ex. B-2; under issue 2 that, as the revenue sale was due to the collusion and fraud between defendants 1 and 2 and Haja Abdul Hameed Sahib, the purchaser, and that as the revenue sale held has been shown to be null and void, the sale in E. P. No. 27 of 1938 on the file of the Sub-Collector's Court was liable to be set aside for the reasons set out in the plaint; under issue 3 that the C Schedule property could not be sold by the revenue Court; under Issue 4 that the private sale under Ex. B-29 was clearly invalid; under issue 5 that plaintiff was entitled.to maintain the suit; though recovery of possession cam be ordered only in:'favour ot and on behalf of the trust and which position was accepted by the plaintiff; under issue 6 that the suit as framed is maintainable; under issue 7 that the suit ds not barred as it is governed by Art. 144 of the Limitation Act when the revenue sale in fa-youp of Haja Abdul Hameed Sahib has been found to be Invalid from the very beginning; under Issue 8 that the suit is not barred under S. 47 of the Code of Civil Procedure; under issue 9 that the suit is not barred under S. 92 of the Code of Civil Procedure and under issue 10 that the plaintiff would be entitled to the following, reliefs:
'In the result, the suit is decreed in favour of the: plaintiff, for recovery of possession, on behalf of the trust created under Ex. A-l of .the plaint B; C, D, E & F Schedule properties, excluding however, the properties (2 acres 19 cents) delivered under, covered by and specified in Ex. B-2, as against all the defendants. The plaintiff will have pro-portionate costs bf suit from defendants 1 and 2 and the estate In the hands of defendants 3 and 4 Defendants 1, 2 and 4 will pay the court-fee payable on the plaint, proportionate to the success of the plaintiff, (a the Government; and, the plaintiff, will pay the balance of court-fee due to the Government..........'
The defeated defendants 3 and 4 have preferred this appeal.
5. On a review of the entire circumstances of the case, we have come to the same conclusion as the learned Subordinate Judge on all the three Joints which were pressed before us viz., that the plaintiff is not entitled to maintain the suit; secondly, that the revenue sale was held properly and cannot be set aside; and thirdly, that the suit is barred by limitation. Here are our reasons.
6. Point 1:-.That the plaintiff can maintain the suit as it stands framed can admit of no doubt Whatsoever, Under the terms of Ex. A-l the plain-tiff, entitled to share, in the surplus one-fourth remaining after the performance of the charities. So he is certainly a beneficiary within the mean-ing. of S. 3 of the Indian Trusts Act 1882, i.e., one Of the persons fpr whose benefit the confidence is accepted by the trustee from the author of the Crust: Secondly, under, the terms of Ex. A-l during the lifetime of defendants l and 2, if there was a proper male issue of the founder capable of ma-nagement, he can be a trustee.
It follows therefore that if defendants 1 and 2 were to be removed from the trusteeship, which is the only possible result of our confirming the decree and judgment of the lower Court, this plaintiff would be entitled to become a trustee.
7. The law relating to suits for recovery of waqf property has been summarised by K. P. Sak-sena Muslim Law (Third Edition) (1954) as follows:
'A worshipper can enforce his individual right In connection with a mosque, but he cannot sue for the recovery of an unauthorised alienation of wakf property; the mutawalll alone can have the fight to institute a suit for its recovery: Debendra Nath v Sheikh Safatulla : AIR1927Cal130 . A Mutawalli can maintain a suit for recovery of possession of the wakf property against a trespasser although it does not vest in him.
A representative suit by two worshippers to set aside ah alienation by the mutawalt is, however, maintainable even without the sanction under S. 92 of the Civil Procedure Code, or S. 14 of the Reli-gious Endowments Act: Ashraf Ali V. Mahomed Nurajjamma, : AIR1919Cal179 The wakf pro-perty may, like other trust properties be recoveredfrom third persons under circumstances referred to In the Indian Trusts Act, S. 63. In case of an unlawful alienation or a mortgage of the mosque property by its manager, any person interested may seek remedy in a civil Court and restore the property to the trust, and the same is true also in case where wakf property is auctioned in execution of a decree not binding on the trust; Aflman v. Hammiduddin Husain, 58 PWR 1919: 51 Ind Cas 799: AIR 1919 Lah 190 (L); Ma. homed dhouse v. Sheik Moideen, 18 MLT 48: AIR 1915 Mad 1044 (M); Hamiduddln v. Court of Wards, Nanpara, 18 Ind Cas 319 (N).
7-a. The principles which regulate the right to institute suits in relation to trust properties are well settled as pointed out by Venkataramana Hao J. in Ahmed, Kutty v. Ayithraman Kutty : AIR1937Mad819 . When there is a lawful trustee for an institution, he is the person competent to institute a suit in relation to the property of the institution, to take the necessary steps for safe-guarding and preserving it and to oeject a trespasser and recover possession thereof for the trust, but the recovery of the property is only for and on behalf of the institution which he ' represents. But where a trustee has alienated the trust property and therefore would not proceed to recover possession of the same or has disabled himself otherwise from maintaining a suit in respect thereof or declines to institute a suit, it cannot be said that the institution is without a remedy.
The worshippers, who are the beneficiaries entitled to participate in the benefits of the institution, are entitled to maintain a suit for preserving the trust property or restoring the property to the trust either by instituting a suit for declaration or for an, injunction or even for possession; but whether the worshippers are entitled to claim any or all of the reliefs which a trustee is entitled to do in a properly framed suit would depend upon the circumstances of each case.
It is desirable and necessary to make the trustee a party to the suit, and where he is made a party it is open to the Court to mould the relief as the circumstances may require. If the suit is one brought for possession by the worshippers, the Court can, after declaring the property to be trust property and setting aside the alienation, direct delivery of possession to the trustee. In cases where there is no trustee, it is open to the Court to direct delivery of possession to the worshippers on behalf of the trust: Rengaswami Naidu v. Krishna-swami Aiyar, 44 Mad LJ 116: AIR 1923 Mad 276 . Again, in certain circumstances it is competent to the worshippers to maintain an action for a declaration that a certain property is trust property and for an injunction restraining , the defendant from interfering with their right of worship, which Is a personal right, without making the trustee a party to the suit.
This would not offend the principle that a trustee alone is competent to maintain a suit to . eject a trespasser; See Kuvarbal v. Mir Alam Khan, ILR 7 Bom 170 (Q). Even a worshipper can recover possession of trust properties on behalf of the trust so that when proper proceedings are Instituted for the management of the trust property and a trustee is appointed, he might hand over possession to the trustee. The general principle applicable to Muslim Wakf is the same as that applicable to the property of a Hindu idol. The rule of Hanafi Law that wakf property is taken to have ceased to be held in human ownership Is applied to all such property even if the wakf be a wakf al-al-aulad Or wakf for the benefit of the descen-dants: Mahammad Jafar v. Taqi, AIR 1933 Oudh 517 (B). So when a waqf property is unlawfully alienated any person interested in the objects ofthe waqf may institute a suit to, set aside the alt-enations and for the enforcement of the provisions6f the waqf; Kazi Hassan v. Balakrishna, ILR 24Bom 170 (S).
8. In this case the plaintiff is not a mere worshipper but an actual beneficiary interested in the trust and what is more an heir entitled to be appointed under the terms of the trust deed as a trustee In certain circumstances, Therefore, this plaintiff is clearly entitled to maintain the suit, though any recovery of possession ordered in his favour can only be on behalf of the trust. The beneficiary's right to sue embodied in S. 59 of the I. T. Act 1882 is an illustration of the maxim 'A trust shall not fall for want of a trustee': Hals-bury's laws of England Hallsham edition Vol. XXXIII Pages 134-135 and authorities cited therein; Lewin on Trusts 14th Edition p. 723.
9. Turning to the other branch of the argument, it is not necessary that a representative suit should be filed, with the permission of the Court under O. l, R. 8 of Code of Civil Procedure. The plaintiff himself can file a suit and recover possession on behalf of the trust. In Maulvi Muhammad Fahimul Haq v. Jagat Ballay Ghosh, ILR a Pat 391: Am 1923 Pat 475 (T), which was a case of Muhammadan wakf, it was held that the beneficiary of a trust, in respect of a Muhatnmadah wakf, interested in the maintenance of a mosque or other charitable institution, may, without having recourse to o. 1, R. 8, Code of Civil procedure, and without suing in a representative capacity, on behalf of the other beneficiaries, sue for recovery of possession of property, wrongfully alienated by the trustee, and for the incidental declaration that the properties are the subject of the trust and that they cannot be alienated.
The beneficiary has the right under S. 59 of the I. T. Act subject to the provision of the instrument of trust that the trust property shall ba properly protected and held and under S. 63 follow the trust property into the hands of third persons. The savings of the rights of transferees are embodied in S. 64, I. T. Act. Therefore point 1 has been rightly decided in favour of the plaintiff.
10. Point 2: This rent sale has undoubtedly been brought about by fraud and collusion between defendants 1 and 2 and the sixth defendant and was a regular hole-and-corner affair without observing the mandatory provisions of S. 117 of the Estates Land Act. These are proved by the following circumstances. The lands in question, nanja and punja with a building and tank, were undoubtedly fetching on an average 130 kalams per year: see Exs. B-31 and B-27 and the evidence of D. W. 4. Defendants 1 and 2 have not gone into the box to give their own version regarding the Income from the properties.
On these lands the melwaram of 42 kalams was payable to the Nagore Durgah and 10 kalams to the Perumal temple. Therefore, there was not less than a surplus of 60 kalams per year for the performance of the charities which were nothing more than two feedings of the poor oh two occasions in a year which would not have required more than 16 kalams of paddy. It is clear therefore that defendants 1 and 2 with ulterior objects of their own were allowing the arrears to accrue In order that the lands might be sold in collusion with another, to ensure secret benefit to themselves. Secondly, that these defendants 1 and 2 were making preparations for this mala fide rent-sale is evident from the testimony of P. W. 2. (After discussion of evidence his Lordship proceeded:)
In other words, the testimony of P. Ws. 2, 4 and 5, which has been accepted by the learned Subordinate Judge, clearly shows the preparation made by defendants 1 and 2 to get these properties sold in revenue sale with a collusive auction-pur, chaser in order to obtain secret benefit to themselves. Subsequent to this sale we have the significant fact that no endeavour has been made,by defendants 1 and 2 to raise and deposit money to set aside the sale, which is consistent only with the sale being a collusive and fraudulent one. This receives eorroboration from another significant circumstance that not only did defendants l and 2 make no enceavour to get the sale set aside, but they. even sold the remaining properties of the trust under Ex. E-29 dated 34-6-1939, which is sometime prior to the date of the sale certificate EX. B-ll dated 5-7-1939, for Rs. 300/- reciting that as the bulk of the properties had been sold away in auction and the remaining properties Were in-sufficient for proper performance of the charity, the trustees were selling the remaining properties.
It is stated that the.learned advocate 'who ap-peared for defendants 3 and 4 found this; top muchqn this being pointed out to him and, frankly coprceded that he could not at all, support the. siteEx.. B-29 in the face of the express provision, inthe wakf deed Ex. A-l. It need not be pointed outthat if muttawalle transfers property without anyauthority, or the wakf or the Court, the alienationIs void and he is guilty of committing a breach oftryst for which he may be removed: Ahmad Shahv. Atta Khan, AIR 1934 P6sh 57 ; ShamaChurn Boy v. Abdul Kabir, 3 C WN 158 (V); Ma-him Jan Bibi v. Mir Rahim : AIR1925Cal435 Jabeda v. Mohammed Mozaffar Ali, AIR 1926 Cal 322. (X); Badal v. Tinkori, 41 Ind Cas 736: AIR 1918 Cal 804; Abdur Rahim v. Narayari Das,ILR 50 Cal 329: 44 Mad LJ 624: AIR 1923 PO 44 (2) ; Abdul Rajak v. Ali Baksh, Am 1943 Lah 200 (Zl). This receives further corroborationfrom another circumstance that the first defendant has gifted the F Schedule properties to hisdaughter, when there is an express provision inEx. A-l against gifting or alienating wakf properties.
These defendants 1 and 2 remained ex parte throughout. There can be no doubt in these circumstances that defendants 1 and 2 had got hold of the sixth defendant in order to dispose Of these trust properties and this collusion Is finally shown from the fact that documents Exs. B-5 and B-10, which should be in the custody of the second 'defendants came from the custody of the contesting defendants 3 and 4. It h'as been argued that this Haja Abdul Hamid is a stranger and therefore no fraud could be inferred.
But it Should not be overlooked that in thevery nature of things, as has been repeatedly point .ed out, fraud is secret in its origin and inceptionand the means adopted for its success and fraudulent motive or design cannot be proved to thevery hit and that it should be inferred, from thecircumstances placed before Court. Each circumstance by itself may not mean much, buttaking all of them together, they may reveal -afraudulent or dishonest plan. In addition to thecircumstances pointed out above which show collusion between defendants 1 and 2 and Haja AbdulHamid, we have the further fact that the circumstances and the manner In which the revenue salewas held show that the auction-purchaser mustalso have been a party thereto.
There was no publication in the Gazette as required by the mandatory provisions of S. 117 of the Etates Land Act: see Ess. A-5 and A-14. The defendants have filed only a publication' after the sale as per Ex. B-25. Secondly, there was no appointment 'of a selling officer: see Exs. A-12-B to A-12-H. Thirdly, for a paltry arrears of Rs, 100 arid odd, the entire B Schedule properties were brought to sale: see the salt register extract, Ex. A-4, It is extremely unlikely that this Haja Abdul 'Hamid would have been a genuine auction-purchaser when the sale took place under such cir. cumstances and what is more in a hole-and-corner fashion inside the house of the village munsif.
The properties are found from their extent end income to be worth at least Rs. 2000/- then and How must be worth much more. According to the P. Ws. the properties were worth Rs. 5,000/- In May 1939 and it is significant to note that in Ex, A-1 of the year 1914 the properties .are stated to be worth Rs. 5,000/-. It is a well known fact that in wakf documents, to escape stamp duty, there will be only under-valuation and not over-valuation. We have already alluded to the net Income of the properties and their extent. The fact that they have been knocked off for a sum of Rs. 401/- is eloquent testimony of the fraudulent and collusive character of the sale.
Therefore, the learned Subordinate Judge came to the correct conclusion that this sale, null and void from the very beginning, was brought about by fraud and collusion between defendants 1 and 2 on the one hand and Hail Abdul Hamid on the other hand.
11. Point 3: It is contended by the learned advocate for the appellants that Art. 12 of the Ipdian Limitation Act would 'apply to this case and that this .suit has been, filed long after the sale was confirmed and the sale certificate Was issued.' In advancing this argument it is overlooked - that Article 12 applies to suits to set aside sales referred to therein. A sale can be set aside by a person only if it is said that it binding on him unless and until it is set aside. This Article will not therefore apply to cases where the plaintiff would not be bound by the sale even If it were not set aside.
Now a person may not be bound, by (I) either because he is not a party to the decree or proceeding In which the sale is held, or (ii) because the sale itself is null and void and without Jurisdiction. In the first ease the sale cannot in fact be set aside by a third party because as between the parties to the decree or other proceeding the sale will be valid and binding. In the latter case there Is nothing to be set aside. The plaintiff in each a case can get a declaration that the Interests Of the trust are not affected by the sale. In fact it has been held that even if the plaintiff sues to set aside such a sale It will be regarded as being in effect a suit for such a declaration.
Such a suit for a declaration is not governed 'by Art. 12. Further, in such a case the plaintiff . can Ignore the sale. The only restriction is that the purchaser should not have prescribed title by adverse possession and limitation for over the statutory period of 12 years after getting possessionof the property.' Therefore, the proper Article to be applied in this case Is Art. 144 of the limitation Act and this is evident from the following Madras decisions: Venkateswarlu v. Veeraswami : AIR1946Mad461 . (Case under Madras Estates Land Act) Satyanarayana v. Ramaineedi Rayalamma, AIR 1843 Mad 501: 213 Ind Gas 255 [Z3]; Lakshmadu v. Ramudu, AIR 1939 Mad 887: ILR (1940) Mad 123: 187 Ind Cas 816 [Z4]; Venkata Narsiah v. Subbamma, ILR 4 Mad 178 [Z5]. . See also Rupa Jagshet v. Krfsnnaji isovind, ILR 9 Bom 169 [Z6]; Nazar Ali v. Kedarnath, ILR 19 All 308 [Z7]; Bujaki Das v. Kesari, AIR 1028 All 363: ILR 5,0 All 686 [Z8]; Mulkh Raj v. Nanak, AIR 1933 Lah 10 [Z9]; Purnachandra Chatterjee v, DInabandu, ILR 34 Gal 811 [Z10]; Ghanasa-yan Chaudhary v, Bas & Co., 60 Ind Cas 529 .(Patna). [Zll]; Khairajmai v. Daim, 32 Ind App 23 [Z12]; Ramabai Govind v. Raghunath Vasudeo : AIR1952Bom106 Maharaj Slngh v. Budhu Chamar : AIR1952Pat46 .
12. Tne plaintiff also relied upon Art. 95 of the Limitation Act. But having found that Art. 144 applies and the suit is within time, It is unneces-sary for us to canvass the meriw of this claim be-cause though there is some evidence that P. W. 1 on account of his mental illness was going from Durgah to Durgha and was not in a position to accurately comprehend the collusive and fraudulent sale which took place in 1939 there also Is some evidence that p. W. 1 was always or frequently in Nagore and could not have escaped having knowledge of this revenue sale. It is unnecessary therefore for us to consider whether Art. 95 of the Limitation Act Would apply to this case.
13. The decree and Judgment' of the learned Subordinate Judge, however, require modification on two points viz., that we consider in the circumstances of this case, the decree should not be given to the plaintiff on behalf of the trust without making him firstly liable to reimburse the legal representatives of Ha]a Abdul Hamid in a sum of Rs. 401/- and secondly equating the interest and mesne profits upto the date of suit and thirdly permitting the legal representatives of that Haja Abdui Hamid to establish in execution the value of improvements said to have been effected by them and set it off against the mesne profits subsequent to the date of suit and liable for the balance if any as this will shorten the litigation and avoid multiplicity of suits and save the trust funds and do complete justice between the parties.
The plaintiff on behalf of the trust will take Immediate possession, of the properties and the question of accounting need not await the delivery of possession. To this course the plaintiff and defendants can have no objection and have no objection. In regard to the extent of the property mentioned as comprised in Ex. B-2 both sides agree that the decree mentions Ac. 2-19 cents whereas it ought to be Ac. 2,67 cents. In assessing the quantum of mesne profits prior to the decree of the lower Court the amount spent under the wakf created by the 3rd defendant on services prescribed under Ex, A-l will, as proved, be given credit to.
14. Subject to these modifications the decree and Judgment of the learned Subordinate Judge are confirmed and this appeal is dismissed, and -the costs of both parties (plaintiff and defendants 3 and 4) including court-fee both as awarded. In the lower Court and here will come out of the estate. Decree modified.