1. The main question in this appeal is one of limitation. The plaintiffs' father was the Muttawalli of a mosque for the lighting in which the suit wakf was endowed. He and his eldest son, the 1st defendant, sold the property to the father of defendants 2 and 3 (and grandfather of 4th defendant) on 25th November, 1909. The vendee held the pro-pert until the date of the suit, 27th March, 1922. The plaintiffs sue to declare that the sale is invalid and for recovery of possession of the property for the mosque. Both the Lower Courts decreed the suit and defendants 2 to 4 appeal.
2. The main point argued is that the suit is time-barred. It is conceded that, on the latest rulings of the Privy Council, Article 134 has no application to the case, and Article 144 is the proper Article. The appellants contend that the wakf property is inalienable and that, therefore, time begins to run from the date of the sale, on which date the vendee came into possession, and that, therefore, the vendee has prescribed for much more than 12 years' adverse possession. The plaintiffs contend that time began to run from the date of the death of the last Muttawalli, which occurred on the 6th March, 1915. The Lower Courts have upheld the latter contention.
3. Both the Courts are agreed that the property is wakf and for the purpose of this argument it will be taken to be so. It is not trust property strictly speaking. Prima facie then it vests in the deity and is inalienable. The plaintiffs contend that when a beneficial interest is retained in the property, say for the family of the founder, the sale of the whole property is valid during the life-time of the vendor, and that limitation only begins to run from his death. That proposition has been approved in a number of reported rulings as applying to the case of the head of a Hindu mutt. The plaintiffs seek to apply it by analogy to the case of the Muttawalli of a mosque. The appellants contend that there is no such analogy, and that it is a fundamental proposition of Muhammadan Law that the whole property vests in the deity so as to forbid any retention of beneficial interest in any one apart from the interests of the institution.
4. Whether in the present case any beneficial interest was retained for the Muttawalli himself is essentially a question of fact, and that question both the Lower Courts have answered in the affirmative. In fact the statement in the plaint that the surplus income is to go to the family of the grantee was not controverted in the written statement, and that has been the custom for 150 years. Now wakfs of this quasi-public kind are of common occurrence in this Presidency and elsewhere, and have been recognised as valid by the Privy Council. See Abdur Rahim v. Narayan Das Aurora where the Privy Council laid down at page 334:
The original settlement was undoubtedly a valid creation of a wakf, for the provision intended to benefit the family of the settlor was not the preponderating feature of the settlement, nor was the provision made for the perpetuation of religious ceremonies and charitable gifts by any means illusory or unsubstantial.
See also Majib-un-nissa v. Abdul Rahim therein quoted. There is, therefore, nothing contradictory to Muhammadan Law in such quasi-public wakfs; and we must accept the finding of fact, not controverted in the written statement, that this wakf is one which itself provided for the private benefit of the family of the grantee as well as for the public benefit of the mosque, though the dominant purpose no doubt was to endow the mosque. The rulings of the Privy Council in Ramanadhati Cheltiar v. Vava Levvai Marakayar and Arunachalam Chetfy v. Venkatachalapathi Gurns-wandgal indicate that a question of this kind is one of fact to be decided on the circumstances of each case. The latter ruling no doubt deals with a case of Mutt property, but the endowment in the present case is very similar in nature to the endowment of a Hindu Mutt, where the head of the Mutt maintains himself and the institution out of the endowment. Such a similarity has been recognised in several reported rulings, notably by the Privy Council in Vidya Varuthi v. Balusami Aiyar and Abdur Rahim v. Narayan Das Aurora . In the latter case at page 336 their Lordships say : 'Under the Muhammadan Law the moment a wakf is created all rights of property pass out of the wakf and vest in God Almighty' and further down 'It is in very deed 'God's acre,' and this is the basis of the settled rule that such property as is held in wakf is inalienable, except for the purposes of the wakf. A similar view forms the basis of the inalienability of a Hindu Mutt.' In Vidya Varuthi v. Balusami Aiyar the argument proceeds on the footing that the same legal principles as to alienation of the property vested in him shall apply to the head of a mutt and to the Muttawalli of a mosque. No doubt the general question there argued was whether such persons are trustees, but even in a decision on this point one would expect the distinction sought by the appellants to be drawn if it in fact did exist. The same language applied by their Lordships in speaking of the mutt can be applied mutatis mutandis to the case of a mosque, him in either case. In both cases alike the property vests in him in either case. In both cases alike the property rests in the idol or the deity, and the same theoretical quality of inalienability applies to both, but it has never been held absolute in the case of a mutt, and there is no good ground for holding either that it is absolute in the case of a mosque. The validity during his life-time of a sale of the mutt property by the head of the mutt has been recognised in numerous cases. See in addition to the Privy Council cases quoted above, Lalchand Marwari v. Mahanth Ramrup Gir . In all these rulings I can see no ground for distinction between the position of the head of a mutt and that of a Muttawalli of a mosque. We pressed the learned Advocate for the appellants to quote any cases in which in case of a wakf which retains a benefit for the family of a grantee it has nevertheless been held, in contradistinction to the similar case of the head of a Hindu mutt, that he has no power to alienate the property during his life-time. But no such case appears to be forthcoming. The learned Advocate fell back on his general argument that, as the whole property vested in the deity, none of it could be alienated even temporarily. But that proposition is as true of a mutt as of a mosque, so that the distinction is really one without a difference. The point in issue is not really a question of law but a question of fact in each case.
5. The learned Advocate for the appellants. endeavoured to draw a distinction between a case of outright sale and the case of a permanent lease, contending that in the former no question of beneficial interest apart from the endowment generally will avail. But that is not the trend of the reported rulings. In Vidya Varuthi v. Balusami Aiyar the Privy Council recognised the general rule that except for unavoidable necessity the head of a mutt cannot create any interest in the mutt property to enure beyond his life-time. It is true that the alienation under consideration there was a permanent lease, but the general proposition will equally apply to the case of a sale, and this Court has so ruled, see Ranga Dasan v. Latchuma Dasan (1924) 48 M.L.J. 114 and Vellachami Naicker alias B.R.V. Swami v. Alagirisami Naicker (1926) 104 I.C. 355. A Bench ruling in the Patna High Court is quoted, Badri Narayan Singh v. Mahanth Kailash Gir I.L.R.(1925) Pat. 341 a case of a sale by the head of a Mutt, where it was held that adverse possession runs from the date of the sale. It is to be noted that when a similar ruling went up to the Privy Council from the decision in Mahanth Ramrup Gir v. Lalchand Marwari I.L.R.(1922) Pat. 475 their Lordships did not decide; the point. See Lalchand Marwuri v. Mahanth Ramrup Gir . They speak of the point at page 325 as a difficult question, and refer to Vidya Varuthi v. Balusami Aiyar and say that they must not be taken to accept the view with reference to it propounded by the High Court of Patna. The appellants, on their argument that the property is wholly vested in the idol, are really forced to the position that a permanent lease is as much an invalid alienation as a sale, and that, therefore, limitation for both must run from the date of the alienation. But that proposition has never been upheld in the case of a permanent lease. As the law at present stands therefore I cannot see any reason for drawing any distinction between a permanent lease and a sale. In such a case the seller sells only such interest as he has, namely, the right to alienate during his life-time, and it is impossible to restrict his right to a right to sell such portion of the endowment as will suffice to provide for his own income. See Abdur Rahim v. Narayan Das Aurora . The sale is, therefore, valid during the life-time of the seller, and adverse possession against the mosque began only from the date of the death of the seller.
6. It was finally urged for the appellants that this property could not be wakf at all because no Hindu can endow a wakf for a Muhammadan institution, and several commentators on Muhammadan Law were quoted to that effect. No direct ruling for this general proposition was quoted to us. The Privy Council in Muhammad Rasa v. Yadgar Hussain (1924) L.R. 51 IndAp 192 : I.L.R. 51 C. 446 (P.C.) declined to decide it. The point was never taken in the Trial Court, and thus the attention of the parties during the trial was never directed to it.
7. I think it would not be correct to allow the point to be taken now. I am not prepared to say that it is a pure question of law. It is not uncommon for persons in the position of Zamindars, Mittadars, etc., in whose estates there are Muhammadan as well as Hindu inhabitants, to make endowments of property for Muhammadan institutions and such endowments, so far as I knew, have always been accepted by the donee as valid. The present endowment was publicly made by the Zamindar and publicly recognised by Government in the inam proceedings, and I should hesitate to declare it invalid merely on a presumption that there could be no exception of any kind to the rule of Muhammadan Law that no wakf can be endowed, by a non-Muhammadan.
8. The final point urged was that the plaintiffs are not Muttawallis and, therefore, are not entitled to sue. That point also was not taken in the Lower Courts and it is essentially a question of fact that should have been the subject-matter of an issue. I cannot, therefore, allow it to be taken here. There is, therefore, no ground to interfere with the decision of the Lower Courts and I would dismiss this appeal with costs.
Anantakrishna Aiyar, J.
9. I agree. The plaintiffs alleged that the property described in the plaint schedule was wakf property granted for lighting lamps and for some other services in the mosque, and that the Muttawallis were entitled to the balance of income of the properties left after deducting the expenses of lighting, etc., in the mosque. They alleged that their deceased father, and elder brother, the 1st defendant, alienated the properties in favour of P. Ramayya, father of defendants 2 and 3 and grandfather of the 4th defendant on 25th November, 1909, that the plaintiffs' father died on 6th March, 1915, and that the alienation was invalid and not binding on the plaintiffs. They sued to recover possession of the properties. The defendants pleaded that there was no connection between the suit lands and the mosque, that the sale by the plaintiffs' father and the 1st defendant was valid, and further that the suit was barred by limitation since the present plaint was filed in March, 1922, , more than 12 years from the date of the alienation in favour of their father in November, 1909. Both the Lower Courts held that the property was wakf property. They also held that the! Muttawallis are entitled to the surplus income after meeting the expenses of the mosque. They held that the sale was not binding as it was not for necessary purposes. On the question of limitation, both the Lower Courts held that limitation began only from the date of the death of the last Muttawalli in 1915; the plaintiffs' suit was accordingly decreed in their favour and the defendants 2 to 4 have preferred this second appeal.
10. On their behalf the learned Advocate raised the following questions:
(1) That the wakf is not valid, since a non-Moslem could no validly make a dedication for a Moslem place of worship,
(2) that the plaintiffs have no beneficial interest in the property,
(3) that the sale was for necessary and binding purposes, and
(4) that the suit was barred by limitation.
11. As regards the first point, the learned Advocate argued that Exhibit A.--the Inam statement--mentions that the lands were granted in Fasli 1187 (1777 A.D.) by Raja Narasimha Appa Rao Bahadur Garu, that a non-Moslem could not validly make a dedication for a Moslem place of worship, and that, therefore, the grant must be taken to be a personal one to Hussain Sahib Peer Jada--ancestor of the plaintiffs--and consequently the sale by the plaintiffs' father was perfectly valid to convey the title to the vendee. This question was not specifically raised in the written statement; no specific issue was raised on this point; there is no reference to it in the judgment of the first Court; and in the grounds of appeal filed in the Lower Court on 30th June, 1924, no specific grounds are taken on this point. At the time of the argument in the Lower Appellate Court in 19,26 this point was raised, evidently because in Muhammad Raza v. Yadgar Hussain (1924) L.R. 51 IndAp 192 : I.L.R. 51 C. 446 (P.C.) a decision of the Privy Council had been published in the interval, where their Lordships remarked at page 454 as follows:
The Board makes no pronouncement whatsoever on a question mooted, namely, whether a grant by a Hindu to a Mahomedan community was incompetent of the foundation of a wakf.
12. The learned District Judge after noting that the Privy Council left the question undecided in the case quoted, referred to Ameer Ali's Muhammadan Law, Volume I, page 200, 4th edition, where the learned author, after stating that a non-Moslem cannot validly make a dedication for a Moslem place of worship, added the qualification that 'this can be done by the consent of the heirs after his death.' The learned District Judge also observed that in the present case it was no private individual who made the dedication but the local Raja or Zamindar, presumably in the exercise of sovereign rights. And he concluded the discussion as follows:
That a grant of this nature is lawful, and indeed a characteristic exercise of the royal prerogative in this country, even where the sovereign does not share the creed of the grantee, is too well known to require demonstration by example.
13. Before us, the learned Advocate for the respondents referred to Bailee's Muhammadan Law, Volume I, page 560, and to Tyabji's Muhammadan Law, page 542, in addition to Ameer Ali's book, 4th edition, page 200. He argued that the reason for the above rule would seem to be that under Muhammadan Law a person could not disinherit his heirs by alienating the whole of his property and that was the reason why the observations were made that the consent of the grantors' heirs would validate the grant.
14. This raises a question of great importance; in my view there is no sufficient basis laid in this case for the assumption that the grant was made by an ordinary Hindu. The defendants' argument is based on an observation occurring in the inam statement that the grant was made in 1777 by Raja Narasimha Appa Rao Bahadur Garu. As remarked by the Privy Council in the case reported in Vidya Varuthi v. Balusami Aiyar : 'The inam proceedings did not create any dedication. They were instituted simply with the object of investigating titles to hold lands revenue-free; as belonging to valid endowments.... The purposes of the dedication must therefore be gathered from established usage and practice' and 'not solely from the statement in the inam register that the dedication was for a specific purpose, namely, the worship of the idol'. The grant in the present case was made many years prior to the inam inquiry of 1860, and from the passage occurring in the inam statement (quoted already), it cannot be held to be established that the grant was made by an ordinary Hindu. If the question had been properly raised in proper time, and if this specific objection had been raised in the written statement, an issue would have been framed on the point. Not having done so, I do not think that it was open to the defendants to raise this point for the first time in appeal. As suggested by the Lower Appellate Court, it is quite possible that the grant was made by the ruling sovereign of the locality at the time. It is admitted that the Inam Commissioner treated this as inam, which would prima facie indicate that it was, probably, not a grant made by an ordinary private individual, since in such cases the Government is not likely to desist from imposing the usual assessment on the land. Further, in a prior litigation evidenced by Exs. C. and D, the Civil Courts held that the properties were wakf properties, though the judgments in that case would not constitute the question re's judicata. In the present case there is evidence on which the Lower Courts could have found that the properties were wakf properties. In the circumstances, I am of opinion that the defendants ought not to be allowed to raise this question for the first time in appeal, not having raised the same in the Trial Court.
15. The second and the third contentions could be summarily disposed of. Both the Lower Courts have found that the Mutta-wallis have beneficial interest in the surplus income of the properties. There is evidence to support the same, and it is a question of fact binding on us in second appeal. The question whether the alienation was for necessary and valid purposes was not specifically taken in the Trial Court. The only evidence adduced on the side of the defendants in the sale-deed in question is Exhibit : I; the documents alleged to prove that the debt to discharge which the alienation was made under Exhibit I was outstanding for many years prior to Exhibit I were not filed in the case, and no evidence was adduced as regards the nature of the debts originally incurred. The second and the third contentions are accordingly overruled.
16. The last contention raised by the learned Advocate for the appellants relates to the question of limitation. He argued that it is a case of trust, and that as more than 12 years have elapsed from the date of the alienation, the suit is barred by limitation. He contended that the case of Matadhipathies is different, and that the Privy Council cases made it clear that in cases of trust adverse possession against the trust began on the date of the alienation, and that the succeeding Trustee would not be entitled to a new starting point of limitation from the death of the alienating Trustee.
17. The learned Advocate for the respondent contended that on the finding of both the Lower Courts that the Muttawalli has got beneficial interest in the present case, the case is exactly analogous to the case of Matadhipathis, and that the Privy Council has held that in the case of Matadhipathies, a new cause of action accrues to the succeeding Matadhipathi on the death of the Matadhipathi who made the alienation. Various cases were quoted before us : Abhiram Goswami v. Shyama Charan Nandi Ishwar Shyam Chand 3 jiu v. Ram Kanai Ghose (1910) L.R. 38 IndAp 76 : I.L.R. C. 526 : 21 M.L.J. 1145 (P.C.) Vidya Varuthi v. Bolusami Aiyar Abdur Rahim v. Narayan Das Aurora and Chamnad v. Jaina Bi (1925) 23 L.W. 740 on the side of the respondents on one hand, and Damodar Das v. Lakham Das Nilmony Singh v. Jagabandhu Roy I.L.R.(1896) C. 536 Subbayya Pandaram v. Muhammad Mustapha Maracayar Lal Chand Marwari v. Mahanth Ramrup Gir Mahanth Ramrup Gir v. Lalchand Marzvari I.L.R.(1922) Pat. 475 and Vadlamadi Sastrultt v. Thalluri Venkata Seshayya A.I.R. 1928 M. 614 on behalf of the appellants.
18. In Vidya Varuthi v. Balusami Aiyar ge 855 the Privy Council observed as follows:
According to the well settled law of India (apart from the question of necessity, which does not here arise) a Mahant is incompetent to create any interest in respect of the mutt property to enure beyond his life. With regard to Mahant No. 2, he was vested with a power similarly limited.
19. At page 840 their Lordships observed:
The manager of the wakf is the Muttawalli, the governor, superintendent, or curator. In Jewun Doss Sahoo's case (1840) 2 M.I.A. 390 the Judicial Committee called him 'procurator'. It related to a. Kankah, a Muhammadan institution, analogous in many respects to a mutt where Hindu religious instruction is dispensed . . . He is the teacher of religious doctrines and rules of life, and the manager of the institution and the administrator of its charities, and has in most cases a larger interest in the usufruct than an ordinary Muttawalli. But neither the Sajjadanashin nor the Muttawalli has any right in the property belonging to the wakf; the property is not vested in him, and he is not a 'trustee' in the technical sense.
20. At page 843 they observed:
Neither under the Hindu Law nor in the Muhammadan system is any property 'conveyed to a shebait or a Muttawalli, in the case of a dedication.
21. Again at page 847 the conclusion is expressed as follows:
From the above review of the general law relating to Hindu and Muhammadan pious institutions, it would prima facie follow that an alienation by a manager or superior, by whatever name called, cannot be treated as the act of a 'trustee' to whom property has been 'conveyed in trust' and who by virtue thereof has the capacity vested in him which is possessed by a 'trustee' in the English Law.
22. In Abdur Rahim v. Narayan Das Aurora the Privy Council followed their earlier observations relating to wakf in the case reported in Vidya Varuthi v. Balusatni Aiyar They also observed at page 335 that the effect of the deed was to give the property in substance to charitable uses and that the dominating purpose was to make adequate provision for the pious uses mentioned in the same, and that the provision for the Muttawalli was not unenforceable nor did it render the wakf invalid. In Jagga Row Bahadur v. Gori Bibi (1922) 17 L.W. 521 it was held that in the case of a Muhammadan wakf, the succeeding Muttawalli was entitled to recover the alienated property (usufructuarily mortgaged) within the twelve years of the death of the alienor (mortgagor Muttawalli).
23. The decisions quoted for the appellants relate to cases of trust in the proper sense of the term. The distinction between the two lines of cases is referred to by the Privy Council in Lalchand Marwari v. Mahanth Ranirup Gir . Their Lordships observe that
it is unnecessary to deal with the important and difficult question whether the case is governed by the decisions, of which Damodar Das v. Lakhan Das may be taken as the leading authority : or by the line of authority of which Vidya Varuthi v. Balusami Aiyar may be taken as typical.
24. The question is discussed in the judgment of the Patna High Court in the case reported in Mahanth, Ranirup Gir v. Lalchand Marwari I.L.R.(1922) Pat. 475 which went on appeal to the Privy Council in Lalchand Marwari v. Mahanth, Ranirup Gir . There has been evidently difference of opinion in this Court on the question of the starting point of limitation in cases of alienations by trustees who have no beneficial interest in the property, the decisions in Rao Bahadur Govinda Rout v. Chinnathurai Pillai : AIR1926Mad193 , Ranga Dasan v. Latchuma Dasam (1924) 48 M.L.J. 114 Vellachami Naicker alias B.R.V. Swami v. Alagirisami Naicker (1926) 104 I.C. 355 and Chamnad v. Jaina Bi (1925) 23 L.W. 740 evidently supporting the view that limitation as against the successor begins only from the death of the alienating trustee whereas Vadlamudi Sastrulu v. Thalluri Venkata Seshayya : AIR1928Mad614 would seem to support, the other view. The Court will have to consider in each case the nature and legal incidents of the institution--wakf, mutt, or grantee--and the proper Article of the Limitation Act applicable to a case could be decided only after the said exact legal nature and incidents of the same are definitely ascertained.
25. The question before us being, however, with reference to a wakf where the Muttawalli has beneficial interest, we think we are bound to proceed on the analogy of a mutt where the Matadhipathi has beneficial interest. The Privy Council decision in Vidya Varuthi v. Balusami Aiyar is a direct authority in support of such a procedure. In the present case, as both the Lower Courts have found that the Muttawallis have got beneficial interest in the property the present Muttawalli could sue within 12 years from the death of the Muttawalli who alienated the properties to the father of defendants 2 and 3 and the present : suit brought within 12 years from that Muttawalli's death is not barred by limitation.
26. We may note here that the Legislature has intervened to clear up matters on what the Privy Council called the 'important and difficult questions,' arising in such cases, and by Act I of 1929 has added three new Articles (134-A, B and C) to the Limitation Act.
27. I am, therefore, of opinion that it is not necessary, in the circumstances, to discuss the question further, or review the effect of the authorities in greater detail, since the matter is otherwise only of academical interest, the law for the future being that laid down by the newly amended Articles of the Limitation Act. I am of opinion that the contention of the learned Advocate for the appellants on this question of limitation is not tenable.
28. In the result, I would dismiss the second appeal with costs.