P. Ramakrishnan, J.
1. This appeal is filed by plaintiffs 2 to 5 in O.S. No. 77 of 1967 on the file of the learned Subordinate Judge of Kumbakonam. In the lower Court one Tajuddin was the 1st plaintiff. The defendant was Sheriff Rowther, the 1st respondent in the appeal. Tajuddin is the 2nd respondent.
2. The suit was filed by the plaintiffs 1 to 5 for the removal of the defendant from Muthavalliship of the Madrasa Ismail at Melacauvery, Kumbakonam, to settle a scheme for the proper administration of the wakf created by one Ismailsa Rowther by a document dated 20th April, 1927, to direct the defendant to render accounts and to recover possession of the wakf properties in favour of the persons appointed under scheme and for costs.
3. According to the plaint allegations, one Ismailsa Rowther by a document dated 20th April, 1927 dedicated the suit properties as wakf properties. The suit J properties are about 76 and odd acres in extent comprising of valuable lands in Tanjore District. Ismailsa Rowther dedicatad the properties absolutely for charitable and pious purposes, namely, for the establishment and conduct of an Arabic Madrasa and free feeding to pupils there and for the construction of a building for the Madrasa. He had appointed himself as the first Muthavalli with powers to appoint co-trustees and to appoint his successor. The wakf deed provided that after spending for the charities, the balance should be utilised for the improvement of the existing property and purchase of new properties. Under a subsequent document, dated 12th May, 1930, he appointed his wife Mathiam Bivi to succeed him, giving her powers to appoint other Muthavallis and successors. By a document dated 13th August, 1931, Mathiam Bivi appointed the defendant and one Hussain as co-trustees. By a further document dated 30th July, 1942, Mathiam Bivi dedicated a further extent of 37-64 acres and appointed the defendant, her sister's son, to act as co-Muthavalli with her, and after his lifetime, his two sons and thereafter their descendants. The surplus income out of the properties endowed by Ismailsa Rowther on 20th April, 1927 and also the income from the additional 37-64 acres endowed by Mathiam Bivi in 1942 should he taken by the Muthavallis for the maintenance of their family. She died about 20 years ago.
4. In the suit, the plaintiffs confined their relief to the original deed, dated 20th April, 1927 executed by Ismailsa Rowther under which the income from the properties was to be used for religious and charitable purposes. This was a public wakf under Mohammedan Law. The plaintiffs contended that it was not open to Mathiam Bivi to alter the public character of the wakf created by Ismailsa Rowther and convert it into a private waKf diverting the surplus to the maintenance of the Muthavallis and their family. It is alleged that the total value of the properties dedicated under both the deeds would be Rs. 5,81,773 and the annual income would be Rs. 40,158.94. The defendant as Muthavalli has not built the Madarsa, nor has he attended to the imparting of Arabic education to the pupils in the Madarsa. He has not conformed to the directions under the Wakf Act, nor paid the contribution nor maintained accounts. He has appropriated the income for his personal benefit.
5. There is a history of prior litigation about this wakf. To state briefly, the Wakf Board appointed a committee of five persons on 10th January, 1965 including the first plaintiff and the defendant, directing the committee to function till 31st December, 1965. The defendant objected to this procedure and filed a writ petition. There was an interim order in the writ petition for the harvest of crops. The defendant filed a writ appeal against that order. The writ appeal was dismissed. The writ proceedings also terminated because the term of the committee had expired. Thereafter plaintiffs 1 and 2 filed a petition to the Wakf Board to frame a scheme under Section 15 of the Act. Pending those proceedings, the plaintiffs were advised that they should move the civil Court for relief. Hence they withdrew their petition and after obtaining necessary sanction from the Wakf Board filed the present suit for that reliefs mentioned above.
6. The defendant urged that the deed of dedication dated 20th April, 1927 by Ismailsa Rowther never came into effect. After his death, Mathiam Bivi executed a document dated 13th August, 1931 appointing the defendant and one Hussain as co-trustees. The defendant took up management and has discharged the duties as per the wishes of the settlor. He opened the Madarsa on 29th July. 1932 and more than ten students aw studying and are being fed. Teachers have been appointed. Thereafter Mathiam Bivi executed three registered documents on 30th July, 1942. By on document she settled all her properties on the defendant, her sister's son; by another document she removed the co-trustee Hussain, and by the third document around which the main controversy in this suit centres, namely Exhibit A-3 Mathiam Bivi dedicated an additional extent of properties and also directed that the surplus income from the properties dedicated both under Ismailsa Rowther's deed of dedication dated 20th April, 1927 and her own deed of dedication dated 30th July, 1942 remaining after spending for religious and charitable purposes should be enjoyed by the defendant's family.
7. After setting out the above pleas of act, the defendant raised certain objections which have been considered by the lower Court as preliminary in character and were considered under issues, 2, 3, 13 and 14 in the judgment under appeal. These objections are : 1. Sanction given to the plaintiffs to file the suit is not legal and valid; 2. The first plaintiff, subsequent to the filing of the suit, has filed a petition for permission to withdraw the entire suit under Order 23, Rule 1, Code of Civil Procedure, and if this permission was to be given by the Court, the suit as such should be dismissed, as all the five plaintiffs who were authorised by the Wakf Board to file the suit would no longer be functioning as plaintiffs to prosecute the suit; 3. The Court-fee paid on the plaint is in-correct; and 4. The statutory notification in respect of the suit wakf under Section 5 of the Wakf Act, Central Act (XXIX of 1954), was published on 24th April, 1958, in the Fort St. George Gazette. The suit was filed long after one year from the above date. Therefore it is barred by time under the proviso to Section 6(1) of the Wakf Act.
8. The learned Subordinate Judge answered points 1 and 3 in favour of the plaintiffs. He answered, however, points 2 and 4 against the plaintiffs. In respect of point 2, his view was that the prayer of the first plaintiff for permission to withdraw the suit under Order 23, Rule 1, Code of Civil Procedure, should be allowed but without liberty to file a fresh suit. He found that after grant of such permission, plaintiffs 2 to 5 cannot validly continue the suit, without obtaining fresh sanction from the Wakf Board and therefore the suit has to fail. In regard to point 4, the learned Subordinate Judge found that the suit was barred by limitation, since it was brought more than one year after the notification. The suit was dismissed and each party was directed to bear its own costs. From the above decision, the present appeal is filed by the plaintiffs 2 to 5.
9. The points for determination in this appeal are:
1. (a) Whether the first plaintiff should have been granted permission to withdraw from the suit under Order 23, Rule 1, Code of Civil Procedure?
(b) In the event of grant of such permission, should the suit fail, because only plaintiffs 2 to 5 are left to prosecute the suit?
2. Whether the suit is barred under Section 6(4) of the Wakf Act?
Points 1 (a) and (b). - Order 23, Rule 1, Code of Civil Procedure reads thus:
1 (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied:
(a) that a suit must fail by reason of some formal defect or
(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim,
it may, on such terms, as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in Sub-Rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to withdraw without the consent of the others.
The prior decisions cited before us at the Bar about the interpretation of the several provisions of the above Rule reveal a cleavage of Judicial opinion. In Ramaswami Chettiar v. Rengan Chettiar : (1933)65MLJ693 , a Bench of this Court consisting of Pandalai and Curgenven, JJ. after extracting Sub-Rule (4) of Rule 1 of Order 23, observed:
The use of the word 'rule' supports the view that this qualification applies not only to Sub-rules (2) and (3) but also to Sub-Rule (1). On the other hand, it has been pointed out that under Sub-Rule (1) no permission of the Court is necessary, so that Sub-Rule (4), which contemplates an operation requiring such permission, is not suitably worded to apply to a withdrawal under Sub-Rule (1). There is some authority for the view that Sub-Rule (4) does not apply to Sub-Rule (1). It was so held in Mohamaya Chowdrain v. Durga Churn Shaha (1896) 9 C.L.R. 332, under the corresponding provision Section 373 of the Civil Procedure Code, 1877.
The Bench also referred to an English case, Mathews in re, cates v. Mooney (1905) 2 Ch. 460, in which it was held that one of several co-plaintiffs had no absolute right to withdraw from an action and have his name struck out. The learned Judges-were prepared to accept the validity of this principle and they referred to the provision in Sub-Rule (1) of Order 23, Rule 1 being permissive, as it says that the plaintiff may withdraw. They also referred to two cases Tukaram Mahadu v. Ramachandra Mahadu : AIR1925Bom425 and Punnayya v. Lingayya : AIR1928Mad496 . After referring to the conflicting view, the Bench observed:
Irrespective therefore of the question whether Sub-Rule (4) governs Sub-Rule (1) we think that the Court can refuse to allow one of several plaintiffs to withdraw if such a course is not consented to by the remaining plaintiff or plaintiffs and would be prejudicial to his or their interests.
10. In Baidyanath Nandi v. Shyam Sunder : AIR1943Cal427 a different line of approach was adopted for interpreting the above provisions. The Bench observed that the operation of Sub-Rule (4) is confined to cases where permission of the Court is necessary in order to enable the plaintiff to withdraw from a suit or in other words, it is applicable only when the plaintiff wants to have the liberty of instituting a fresh suit in respect of the same subject-matter. In such a case, express leave of the Court is necessary. But if the withdrawing plaintiff does not want to reserve any right to renew the suit on his own account in future, and is prepared to take the consequences indicated in Sub-Rule (3), it cannot be said that his right of withdrawal is dependent on the consent of the other plaintiffs. When there is no question of seeking permission from the Court to institute a fresh suit on the same subject-matter, Sub-Rule (4) of Rule 1 of Order 23 which speaks of authorising the Court to permit one of several plaintiffs to withdraw, cannot have any possible application. Then the Calcutta High Court observed:
When therefore one of several plaintiffs desires to withdraw from the suit without reserving a liberty to institute a fresh suit in respect of the same matter, the consent of the co-plaintiff is not necessary and Sub-Rule (4) of Rule 1 of Order 23 has no application to such cases.
After laying down thus a proposition in general terms regarding the interpretation of the Rule, the Calcutta High Court made the following observation:
The Court has inherent powers quite apart from Sub-Rule (4) to impose restrictions upon the right of one of the several plaintiffs to withdraw from a suit when such course is detrimental to the interest of the other plaintiffs even though the withdrawing plaintiff does not want any liberty to renew his suit.
We may also refer to the decision of a single Judge (Krishnaswamy Aiyangar, J.) of this Court in Tulsidas v. Sethuramaswami Aiyar : AIR1942Mad373 . The learned Judge cited Ramaswami Chettiar v. Rengan Chettiar : (1933)65MLJ693 . and observed that the learned Judges in this case after noticing the point, namely, whether Sub-Rule (4) should govern Sub-Rule (1) or not, did not find it necessary to decide it and based their decision upon a different point altogether. Then the learned single Judge followed two other cases Mohamaya Chowdhrain v. Durga Churn Shaha (1881) 9 C.L.R. 332 and Nilappa Gouda v. Basan Gouda (1926) 29 Bom.L.R. 299, and expressed a view similar to that of the Calcutta High Court, namely, where liberty to institute a fresh suit is required, Sub-Rule (4) is called into operation. But having expressed the relative scope of Sub-Rule (4) and Sub-Rule (1) in this manner, the learned Judge observed that the right to withdraw on the part of one of several plaintiffs is not an unconditional right and if such withdrawal will cause real prejudice to the remaining plaintiffs and they do not consent to the withdrawal, the Court will take this circumstance into consideration before it comes to a decision one way or the other on an application for withdrawal. It may be noticed that the Calcutta Bench case which came later referred to the single Judge's decision Tulsidas v. Sethuramaswami Aiyar : AIR1942Mad373 , and in substance laid down the same principle as laid down in that decision.
11. We are inclined to adopt the view expressed by the Bench of this Court in Ramaswami Chettiar v. Rengan Chettiar : (1933)65MLJ693 . The observations of the Bench imply that their view was that Order 23, Rule 1(4) must be read as a qualification of Order 23, Rule 1(1). The Bench said that what is enunciated in Sub-Rule (4) is a perfectly valid principle, and it finds support in the terms of Sub-Rule (1) of Order 23, which says that the plaintiff 'may withdraw'. They also observed that the expression, 'plaintiff' in Sub-Rule (1) must be read as all the plaintiffs, collectively, and not so as to include one only amongst several plaintiffs. From this point of view, it is possible to view Sub-Rule (1) of Rule 1 of Order 23 as laying down a proposition that where there is only one plaintiff, he may withdraw from the suit, and where there are several plaintiffs all of them acting together can also withdraw. But there may arise special difficulty in a case when there are several plaintiffs and all of them I do not desire to withdraw, but only one or some of them desires to withdraw, but not the rest. Sub-Rule (4) of Rule (1) of Order 23, lays down a salutary provision to meet this difficulty. It says that in such cases, the Court must find out whether the remaining plaintiffs have given their consent or not and whether the grant of permission would prejudice them or not and this should be a factor that should weigh with the Court, in considering the grant of the permission for withdrawal. It is relevant to observe that even the judgment of the Calcutta High Court and the Judgment of the single Judge (Krishnaswami Aiyangar, J.) have ultimately laid stress on the inherent powers of the Court to refuse permission to one of several plaintiffs to withdraw without the consent of others, if such a course would cause prejudice to the remaining plaintiffs. Even if we give weight to the view of the Calcutta High Court and the view of the single Judge of this Court, it will be necessary to consider in any event, whether the grant of permission to the first plaintiff in this case to withdraw from the suit will prejudice the remaining plaintiffs and whether the Court should not grant such permission. Unfortunately, the learned Subordinate Judge has not at all adverted to this aspect of the matter in the present care, namely, whether the grant of permission to the first plaintiff to withdraw would prejudice the co-plaintiffs. It is a matter of regret that he did not do so. He has referred to the allegations of the other plaintiffs that the first plaintiff has been won over by the defendant that the remaining plaintiffs are equally interested in the proper administration of the wakf and that the first plaintiff's unwillingness to continue the suit is no ground to grant permission to withdraw the suit and that if necessary he may be transposed as a defendant. But the learned Subordinate Judge has not at all adverted to the validity of these contentions. He stated that the consequence of the grant of permission would be that the remaining plaintiffs would have to get fresh sanction from the Wakf Board for continuing the suit. We will be devoting shortly our attention to the question whether fresh sanction is necessary or not even in the event of grant of permission. But, in our opinion, the circumstances clearly show that the permission sought for by the first plaintiff should have been refused by the Court. Even in the contingency mentioned by the lower Court there was a need to avoid multiplicity of proceedings. If 1st plaintiff was unwilling to continue the suit, he could have been transposed as a defendant, a course which is permitted by law. Mulla in his commentary on the Civil Procedure Code, (Twelfth Edition) at page 520, under Order 1, Rule 10, says:
In the case of a difference between co-plaintiffs, the proper course is to make an order that the name of one of them be struck out as plaintiff and added as a defendant.
There remains the further question whether, if the first plaintiff is refused permission to withdraw from the suit and is consequently transposed as a defendant, the remaining four plaintiffs can validly continue the suit. In our opinion, there is no impediment for them to continue the suit. There is a considerable volume of authority which given support to this view.
12. In Ml. Ali Begum v. Ali Khan (1938) 2 M.L.J. 1 : 65 I.A. 198 : A.I.R. 1338 P.C. 184, after refering to a suit filed by several plaintiffs with the sanction under Section 92(2), Civil Procedure Code the Privy Council observed that as Sub-section (2) Section 92, Code of Civil Procedure, sufficiently shows, the consent in writing is a condition only for the valid institution of a suit, but has no reference to any other stage. The Privy Council further observed that where therefore a suit is instituted by five persons with the leave of the Collector and an appeal is filed by four of them with the concurrence of the fifth, who has been made respondent, as he had gone on business to another province, the appeal was competent as originally brought in R.E.S. Corporation Ltd. v. Nageshwara Rao : 2SCR1066 , dealing with a petition under Section 153-C(3) of the Companies Act, 1913, which requires an applicant to obtain sanction of not less than 1/10th of the members, the Supreme Court observed:
The validity of a petition must be judged on the facts as they were at the time of its presentation, and a petition which was valid when presented cannot in the absence of a provision to that effect in the statute, cease to be maintainable by reason of events subsequent to its presentation.
Thus where the applicant under Section 153-C has obtained the consent of not less than one-tenth in number of the members and has presented the application, the withdrawal of consent by some of those members subsequent to the presentation of the application cannot affect either the right of the applicant to proceed with the application or the jurisdiction of the Court to dispose of it on its own merits.
Ekambarappa v. E.P.T. Officer : 3SCR916 , deals with a different situation but that decision too, will support the above conclusion. The Supreme Court observed that where sanction was given to four persons (under Section 92(1) of the Code of Civil Procedure to file a suit, and one of them died before the institution of the suit, the suit thereafter filed by the remaining three was incompetent. In such a case, fresh sanction must be obtained by the survivors for the institution of the suit. In other words, the necessity for the persons who had obtained sanction to act together lasts only upto the stage when the suit is filed. Once the suit is filed by all the persons the dropping out subsequently of one or more of the plaintiffs, by death or otherwise will not affect the continuation of the suit, so long as the remaining plaintiffs on record are willing to do so. Therefore, in our opinion, the view of the learned Subordinate Judge that plaintiffs 2 to 5 cannot validly continue the suit is erroneous and we set it aside. We reject the application by the 1st plaintiff to withdraw from the suit and direct him to be transposed as a defendant.
13. Point No. 2. - Section 6(1) of the Wakf Act, 1954, reads thus:
6 (1) If any question arises whether a particular property is wakf property or not or whether a wakf is a Shia Wakf or Sunni Wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a civil Court of competent jurisdiction for the decision of the question and the decision of the civil Court in respect of such matter shall be final:
Provided that no such suit shall be entertained by the civil Court after the expiry of one year from the date of the publication of the list of wakf under Sub-section (2) of Section 5.
Section 6(4) reads thus:
6 (4) The list of wakf published under Sub-section (2) of Section 5 shall, unless it is modified in pursuance of a decision of the civil Court under Sub-section (1), be final and conclusive.
The notification in the instant case under Section 6(1) of the Act is marked as Exhibit B-1 and it was published on 24th December, 1956. The present suit was filed in 1967, nearly g years after Exhibit B-1. The relative extract from the list of Wakfs in the case of the suit wakf is this:
____________________________________________________________Name of Name of Nature and object ofWakf. Village. the Wakf.____________________________________________________________* * **Madrasa Mela Pious religious andIsmail Kaveri. Charitable andMadrasa Wakf-alah-auladThe Wakf wascreated for thepurpose of runninga Madrasa for feedingand clothing the pupila.__________________________________________________________________________________________________________________________Gross Land Reve Expenses to realiseincome. nues, etc. income and remune-payable. ration of Mutavalli.______________________________________________________________* * **1233 1479 6320_______________________________________________________________
The learned Subordinate Judge after an eleborate discussion of the arguments advanced before him, came to the conclusion that the relief of the plaintiffs in substance in the present, suit involved a denial of the contents of the notification under Exhibit B-1 and that the suit was barred by time under proviso to Section 6(1) of the Act extracted above. It is this finding that is now challenged by the appellants in this appeal.
Before we consider this point, it is necessary to deal briefly with the relevant provisions of the Wakf Act. The definition of 'wakf' given in Section 3(1) of the Act incorporates the definition given in the standard treatises on Mahomedan Law. That definition reads:
wakf means the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes:
(i) a wakf by user
(ii) mashrut-ul-khidmat; and
(iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable.
In the present case, there were two bequeests of immovable properties. We have referred to these two bequests in the earlier part of the judgment. Ismailsa Rowther's deed of endowment, Exhibit A-2 registration copy, deals with about 76 and odd acres of wet land, 9 and odd acres of dry land and three shops in Kumbakonam. The relevant terms of this deed are these:
From out of the annual income of the A schedule property, after meeting the expenses for repairs, maramath, kist, tax, etc., the charities described in the B schedule should be done permanently. I shall be a trustee for my life time. The person when I shall nominate later will perform the trust. I or my future nominees will have no power to alienate the A schedule properties. The surplus income after meeting the expenses of the dedication, will be utilised in purchasing lands for the trust, for conducting the Madrasa, imparting free feeding and clothing. No other expenditure should be done. The value of the property will be Rs. 10,000.
It is clear from this document that the entire properties are an outright endowment for religious and charitable purposes and no surplus income is reserved for the enjoyment of the founder and his family. Mohamedan Law permits also dedication of property as wakf:
(a) for the maintenance and support wholly or partially of his family, children or descendants; and
(b) where the person creating a wakf is a Hanafi musalman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated:
Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character, (vide - Section 197, Mulla's Principles of Mohomedan Law, Sixteenth Edition, pages 192-193.) This position is recognised by the law relating to private wakfs the Mussalman wakf validating Act (VI of 1913). 'Wakf-alal-aulad' referred to in Section 3(1)(iii) of Wakf Act, 1954, deals with such private wakfs, which has a combination of object partly for the maintenance and support of the donor's family and partially for pious, religious or charitable purposes. In such cases, Section 3(1)(iii) of Act (XXIX of 1954,) by its definition brings the administration of the properties so far as the pious and charitable purposes are concerned, within the scope of Act (XXIX of 1954). That will be the meaning of the language of Section 3(1)(iii) to the extent to which the property is dedicated for any purposes recognised by Mussalman Law as a religious, pious or charitable purposes. In the present case, another wakf was created by Mathiam Bivi, widow of Ismailsa Rowther under Exhibit A-3 dated 30th July, 1942. It is necessary to consider this document with care. She refers to the endowment by her husband on 20th April, 1927. She also refers to the fact that till nth May, 1930 Ismailsa Rowther did not take part in the administration of the charities. Then, on 12th May, 1930, relying on the power to nominate trustees, he appointed her as trustee of the Madarasa and executed a registered document appointing her as such trustee. From that date she took charge of the properties endowed by her husband, established a Madarasa and was conducting the charities properly with the assistance of her sister's son, Mohamed Sheriff Rowther (defendant) and of one Hussain Rowther, who was working in her shop Ismaila Rowther died in March, 1931. Mathiam Bivi executed a deed on 13th August, 1931 appointing the above two persons as co-trustees. But, since Hussain Rowther did not act according to her wishes, she removed him from co-trusteeship on 25th January, 1937 by a registered document. Exhibit A-3 proceeds to say:
What the above discussion shows is that after the lapse of some time after the deed Exhibit A-2 was executed, on 12th May, 1930, Ismailsa Rowther appointed his wife as a trustee. From that date onwards she began to carry out the objects of the endowment under Exhibit A-2. After the death of Ismailsa Rowther in March, 1931, she continued to carry out the objects of that endowment with the help of co-trustees. In 1942 she endowed an additional extent of property under Exhibit A-3 and made a significant direction at the time that after spending from the income from the properties covered by Exhibit A-2 and also the properties covered by Exhibit A-3, the surplus shall be enjoyed by the trustees whom she had nominated and their descendants for their family maintenance. Prima facie the first document Exhibit A-2 is an outright dedication of the entire properties to the wakf; the second document Exhibit A-3 purports to endow some more properties for the same pious, religious and charitable purposes indicated in the earlier document, and at the same converts the nature of the earlier wakf into a private wakf or Wakf-alal-aulad. Now, there are certain well-known principles of Mahomedan Law about the powers of the Wakif (dedicator.) They are stated thus:
The wakif (dedicator) may, at the time of dedication reserve to himself the power to alter the beneficiaries either by adding to their number or excluding some, and to increase or reduce their shares. In the absence of such a reservation the wakif cannot alter the terms of the wakf, nor can he make a change in the personnel of the MutSawallis. He cannot, of course, so reduce the shares as to withdraw any part of the property from the wakf. Nor can he alter the objects of the Wakf' (vide - Mulla's Principles of Mohomedan Law, Sixteenth Edition, Section 190 at pages 184-185).
Prima facie what Mathiam Bivi did in the second document was to alter the objects of the wakf in the earlier deed executed by her husband, even though this deed did not contain any reservation of a power to make such alteration in the dedicator or his descendants or subsequent Mutawallis.
15. At this stage we may usefully make a reference to the enquiry held in this case before the publication of the list in the gazette. Section 4 of the Act provides for a preliminary survey of the wakfs by the Commissioner of Wakfs. This enquiry is directed to find out:
(a) whether the wakf is Shia or Sunni;
(b) the nature and objects of the Wakf;
(c) the gross income of the property comprised in the wakf;
(d) the amount of land revenue, cesses, rates and taxes payable in respect o such property;
(e) the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of the wakf; and
(f) such other particulars relating to the wakf as may be prescribed.
The pro forma report of the preliminary enquiry in the present case is Exhibit A-4 dated 20th April, 1956. It shows that the enquiry officer considered both the deeds, Exhibits A-2 and A-3, and put down his finding about the nature of the wakfs as 'religious and charitable as per the founder and religious and charitable and Wakf-alal-aulad subsequently by the wife of the Founder.' The enquiry officer did not apply his mind to the legal position as to whether the subsequent alteration of the objects of the earlier wakf made by the wife of the founder was valid or not. In the column relating to the total value of the properties, he has given the value as Rs. 1,64,510 representing the value of the properties covered by both the documents, Exhibits A-2 and A-3. Similarly the gross income given in Column No. 15 is the income from both the sets of the properties. The gross amount of land revenue, cesses, etc., in Column No. 16 comes to a total of Rs. 1,479 which is also the revenue etc., in respect of the properties under both the documents. The expenses to realise the income also cover the properties under both the documents. Section 5(2) of the Act says that after receiving the report of the enquiry Officer, the Board shall publish a list of wakfs containing such particulars as may be prescribed. It is these particulars which were ascertained by the enquiry that are found in Exhibit B-1 extracted earlier. The pious, religious and charitable objects mentioned by the founder and which were reiterated by Mathiam Bivi in the second document are noted down in Column No. 3 of Exhibit B-1. Under the said Column No. 3, after stating 'pious, religious and charitable' the words ' and Wakf-alal-aulad' are also added without deciding the question whether the alteration of the objects of the earlier wakf deed of Ismailsa Rowther by his wife Mathiam Bivi in the latter wakf deed is valid or not. The record shows that this crucial part of the terms of the dedication in this case and their validity under Mahomedan law was not decided in the enquiry before the Board. The Board merely recorded the purport of both the documents and took the properties under both the documents as dedications for pious, religious and charitable purposes. It also recorded that there was an element of Wakf-alal-aulad, in the endowment, because of the second document of Mathiam Bivi.
16. Against the above background of the facts of this case, and the recitals in the documents we have to consider how far the proviso to Section 6(1) of the Act will be attracted, to impose the bar of limitation on the present suit. As mentioned already, the plaint concerned itself only with the properties comprised in the first deed of 1927. It says that the defendant Sheriff Rowther had not been carrying out the objects of the wakf satisfactorily he had not built the Madarasa and he had not attended to the conduct of imparting education to poor Muslims and providing for their clothing, feeding, etc., as required under the deed. The prayer in paragraph 21 of the plaint is to frame a scheme for the better administration of the Madarasa Ismail wakf, Melacauvery and for the removal of the defendant from Mutawalliship, on account of several grounds (a) to (p) stated therein. In the written statement filed by the defendant, the subsequent history mentioned earlier in this judgment is narrated. A plea is put forward that Mathiam Bivi had a right to enlarge her powers under law and relying on this power she endowed an additional extent of 29 acres 3 cents for the due performance of the same trust. She had also provided that the surplus income from out of the properties dedicated under both the documents should go to the defendant's family. Paragraph 14 of the Written statement states that both the settlement deeds thus constituted a private family trust, and that the defendant was entitled to get the surplus income after the due performance of the trust as indicated. Paragraph 19 states that as a result, the entire wakf became a private family wakf. There is also a narration of the Course of earlier litigation which involved the filing of writ petitions, but it is unnecessary to go into its details in this appeal. The defendant also pleaded that the he had properly administered the wakf and spent the income for the pious, religious and charitable purposes. This part of the pleadings has yet to be considered.
17. In paragraph 45 of the written statement, there is a pleading that without including the properties covered by the second document, which is also part of the trust, the suit is not maintainable in law. This point also has not been considered by the lower Court, even though an issue No. 5 was framed for that purpose. As mentioned already, only the pleading in paragraph 42 about the suit being barred by limitation was considered by the lower Court, as a preliminary point, besides the preliminary points under the issues referred to earlier.
18. The only question therefore that now arises is whether, in the light of the relief sought in the plaint and in the background of the circumstances of this case, proviso to Section 6(1) of the Act is attracted to bar the suit by limitation. The answer to this must be in the negative. What is final under Section 6(1) is only an issue as to whether the wakf is a Shia Wakf or Sunni Wakf or whether a particular property is wakf property or not. But there is no dispute in the present case that the property comprised in the document of the year 1927, which is the plaint-schedule property is wakf property. The learned Subordinate Judge in paragraph 12 of his judgment has referred to the fact that before him, both sides were agreed that the suit properties were wakf properties. This dispute, however, was whether it was a private wakf or a public wakf. This dispute, on ultimate analysis, turns on the question whether Mathiam Bivi by her subsequent document in 1942 can convert the deed of the year 1927 of the husband into a private wakf by adding to the pious, religious and charitable purposes mentioned in the deed of the founder, the purposes, of maintenance and support of the family of the defendant. That question is entirely foreign to Section 6(1) of the Act, and cannot form the subject-matter of a statutory suit, provided for in Section 6(1) of the Act. It is only in respect of matters which are comprised within the the scope of a statutory suit that the bar of limitation contained in the proviso to Section 6(1) of the Act will be attracted. But when the question is not within the scope of such statutory suit, but is a different one, namely, as in the present case, whether a subsequent trustee or Muhinth (sic) can alter the terms of the dedication of the earlier founder, it is clearly outside the scope of the statutory suit and the bar of limitation contained in Section 6(1) of the Act will not apply to it. It can well form the subject-matter of a suit for a decision under the general principles of the Mahomedan Law applicable to wakfs, and can be agitated in the ordinary jurisdiction of the civil Court.
The learned Subordinate Judge, in our opinion, misconstrued the facts of the case, when he put down the scope of the dispute as to whether the suit property is a wakf property or not, in paragraph 19 of the judgment. But in doing so, he has overlooked a finding which he himself has recorded earlier, namely, that there was no dispute that the suit property is a wakf property. He has also observed in paragraph 22 of his judgment that the plaintiffs in substance denied the contents of the notification Exhibit B-1. That observation too is not correct. The plaintiffs did not deny the contents of the notification. But what they claimed in substance was that Exhibit A-2 property should be used completely for pious, religious and charitable purposes, and that it was not proper to convert it into a private wakf by a subsequent deed, without there being any reservation in the part of the founder for such alteration as required under the Mahomedan Law. That is a point which can be properly agitated in the suit, filed under the ordinary law, and not in a statutory suit.
The appeal is therefore allowed with costs, throughout. The decree of the lower Court is set aside, and the lower Court is directed to restore the suit to its file, and dispose it of according to law, and in the light of the observation in this judgment.