1. I agree, bat I prefer not 10 express any opinion as to the meaning of the deed of grant (Exhibit VI), but would base my decision on the two points (1) res judicata, (2) failure to prove necessity. The decision of this Court in Appeal No. 169 of 1991 is undoubtedly based upon (sic) take of fact, but is nonetheless binding upon plaintiff for that reason. He cannot now contend that the properties are not wakf; that being so, he must prove necessity for the alienation. Having failed to do this, his appeal fails and must be dismissed wish, costs, of the first respondent.
2. Plaintiff's right to retain possession of the property, if he is really in possession, does not arise in this suit for money and need not be discussed.
3. This appeal is against the decree of the District Judge of Vizagapatam dismissing the plaintiff's suit on a mortgage-bond dated 8th December 1900 on the ground that the hypotheca are wakf or trust properties and, therefore, Could not be alienated, and that there was no necessity to mortgage the wakf properties.
4. It Is contended for the plaintiff (appellant) before us, (1) that the properties are not wakf properties, but are only burdened with a trust in favour of certain charities; (2) that there was necessity for the mortgage, and (3) that the plaintiff has prescribed for a mortgagee's possession and he could not, therefore be evicted without the amount due on the mortgage being paid.
5. The question whether the properties are wakf properties or not depends upon the construction of Exhibit VI which is a grant by the Nawab of Chicacole in the Hijira year 1121. The material portions of the document, are,--'Hajee Mir Mahammad Sadique, servant of the Holy Heirs of the Holy Prophet, engaged himself in praying the Creator of Day and Night and always caused the humble fare reach some of the pious men, devotees, righteous and poor men after performing Fatiha (blessings) on the victorious soul of the leader of all Prophets. He decorates, lights and performs the anniversary of the mausoleum every year and low and high people gain prosperity by acquiring a portion of what was left of food and drink, presented and offered to the holy men * * * and as there is no sufficient means for these laudable expenses in this world of causes, accordingly considering all * * * which relates to 1be person of the King of the world and * * * the entire village of Buradi Kunjram belonging to the said Sircar assessed at even hundred and twenty rupees with effect from the commencement of the 1125 Fasli, as per endorsement, was granted by way of expenses of farsh (carpetting, matting, etc.,) and lighting at the anniversary and maintenance of servants, students and other men deserving help at the Viands of the Refuge of Nobility. It is necessary that they should leave it in the enjoyment of the aforesaid person and treat it as above mentioned civil liability so that from year to year utilising the income thereof for the expenses of maintenance of servants and requisites of the Dargak where angels pray, etc.' On this document there is the following endorsement: 'The endorsement is to this effect that the entire village of Burdi Kunjram belonging to the Chicacole Sircar assessed at seven hundred and twenty (720) has been fixed by way of aids to maintenence of Haji Mir Mahammad Sadique, servant of the Holi Relies and for the expenses of the Dargah; it is necessary that the said village should be left in the enjoyment of the said person with effect from the beginning of 1125 Fasil. The signature on the petition is to this effect 'Give sannad. One village, assessed at 720', Mr. Ahmed Hassan, the Persian interpreter, has explained to us the object of 'the endorsement; when a petition for a grant was presented to the Nawab, and endorsement was made as to the order of the Nawab on the petition with a direction that a sannad should issue and on the basis of this the farmans or grant was prepared and signed by the Nawab, Exhibit VI is a grant bearing the baix (Royal Mark) of the Nawab.
6. It is contended by Mr. Madhavan Nair that this document was produced and admitted as evidence after both the plaintiff and the defendants had closed their case and that he was prejudiced thereby. The case was closed and the arguments were heard by the learned District Judge on 4th April 1919. He insisted on the production of the original grant which was done by the first defendant on 16th April 1919.
7. There is an endorsement on Exhibit VI that both the parties admitted the document. That endorsement is dated 24th April 1918. Judgment was delivered after the midsummer vacation on 7th July 1919, Mr. Madhavan Nair strongly urges that he Had no opportunity of either explaining the contents of the document or of adducing evidence to counteract the effect of them, Seeing what the endorsement on the document is, it cannot be said that the learned District Judge admitted it in evidence without giving the Vakils on both sides an opportunity of inspecting it and having their say on it. It cannot be said that thi9 document was sprung upon the plaintiff; such a document was referred to in the evidence and, seeing what the contention of the first defendant was in this case, there is no reason to suppose that the plaintiff has been in any way prejudiced by the admission of the document after the arguments were heard, If the plaintiff's Vakil thought that he could meet the document in any way he would certainly have asked the Judge to give him an opportunity to do so. There is no affidavit before us to show that plaintiffs' Vakil asked for time to have an opportunity of putting forward any contention in respect of the document and. that was refused. Therefore, there is no substance in the objection against the reception of the document in evidence.
8. It is next urged that Exhibit VI does not create wakf but evidences a grant in favour of Mahammad Sadique with a direction to apply a portion of the income to certain charitable purposes, and, therefore, the property granted by the document is only burdened with a trust and is not a trust property inalienable by the grantee. The circumstances under which the grant was made have to be considered, There was a shrine or Dargah in which the Holy Relics of the Prophet were deposited and Mahammad Sadique being a religious man was engaged in offering prayers, performing fatiahs, feeding the poor and probably in maintaining a school. The Nawab of Chicacole was approached to make a grant as Mahammad Sadique had no sufficient fund to meet all the expenses of the mosque. The endorsement shows that the Nawab wanted to grant the village in question, by way of aid to the maintenance of Mahammad Sadique and for the expenses of the Dargah. Whatever might have been the intention of the Nawab as expressed in the endorsement, when the grant was actually made out, it was so framed as to make the grant a wakf. In construing the farmans and grants, great weight ought to be attached to the actual words used in the grant rather than to an endorsement, which is brief and simple, and may not fully express the intention of the grantor. In interpreting deeds and contracts, the intention of parties to the document should be gathered only from the recitals in the document to which they are parties and not from what they said or did before the document was executed. The intention of the grantor is quite clear from the following words in the document:--'The entire village of Burdi Kunjram was granted by way of expenses of farsh aid lighting at the anniversary and maintenance of servants and students and other men deserving help at the hands of the Refuge of Nobility,' the Refuge of Nobility being Mahammad Sadique. What follows puts the intention beyond doubt, 'It is necessary that they should leave it in the enjoyment of the aforesaid person and treat it as above mentioned as civil liability so that from year to year utilising the incomes thereof for the expense of the maintenance of servants and requisites of Dargah.' Mr. Ahmed Hussain (the Persian Interpreter) explained that by civil liability was meant that it was not an ecclesiastical grant but wakf which, under certain circumstances, could be revoked. There is nothing in the operative portion of the document to show that it was intended as a grant to Mahammad Sadique with a pious wish that he should devote a portion of the income to the charity. No doubt, in that portion of the document relating to the reasons for making the grant the fact that he was not able to meet all the expenses is mentioned. But the operative portion does not make any mention of the needs of Mahammad Sadique.
9. It is urged that it could not have been the intention of the grantor to make the whole of the income wakf. The word 'wakf' is not used in the document hence it could not be considered trust property. This argument overlooks the clear recitals in the document and the object of the grantor, which are that his state should endure for all time by the prayers that may be offered at the Durgah. Further, the income was to be devoted not only to the maintenance of the servants, but also of students and other men deserving help. It is said that it is usual in mosques and, Durgah to have a school for teaching Arabic, and the expense in, connection therewith cannot be estimated at any particular figure. The size of the school and the nature of the education imparted therein would depend upon the amount that could be spared for such purpose, Considering, all the circumstances of the case, I think the learned District Judge is right, in finding that the property covered by Exhibit VI is a wakf property and, therefore, inalienable, In Ramanadan Chetliar v. Vava Levvai Marakayar 39 Ind. Cas. 235 : 40 M. 116 : 44 I.A. 21 (P.C.). 'the lands in question were comprised in a trust-deed dated the 28th July 1893 whereby they were settled substantially in trust to apply an indeterminate portion of the income for the due performance of customary fatiahs-for ancestors and to alms-giving, and to apply the residue of the income in perpetuity for the benefit of the defendant and their ancestors without power of alienation.' Their lordships observed at page 123.*
The paramount purpose of the grantors was evidently to provide for all the needs of these charities up to the limit of the trust funds,, the income received from the land, Those needs tare the first burden upon that income. It is the residue, which may be a dwindling sum, that, is given to the family. The contention that, because the share of the income going to the family is at present larger than that going to the charities, the effect of the deed is to give the property in substance to the family, and that, therefore, it is invalid as a deed of wakf is, their lordships think, entirely unsound. And they hold that having regard to all the circumstances of the case, the dominating purpose and intention of the grantors in executing this deed evidently was to proved adequately for these charities.
10. Mr. Venkatachari for the first respondent contended that the Inam title-deed, Exhibit I, described the property as trust property. In. the first place, the decision of the Inam Commissioner as regards the nature of the grant is not conclusive. Secondly, it is for the' Court, when the original grant is before it, to see what that document means. In this case the Inam Commissioner recommended that the inam may be continued on the present tenure, ExhibitIshows.no doubt that in column 2 the inam is called Devadayam inam, but in column 10 it is said permanent-so long as the service is performed. Then in column 21 it is found 'to be confirmed and continued so long as the service is performed.' It is not clear from this document whether the Commissioner treated it as service inam or as grant to the Dargah. But as I said above it is for the Court to sep what the nature of the grant is, and though the Inam Commissioner's decision may help the Court in arriving at a finding as to the practice of an institution, yet it is not conclusive as to the meaning of the grants and in this case, I have no hesitation, ins holding that the grant made by Exhibit VI was a wakf grant. He relied upon a number of cases to show how the grant is to be understood. It is. not a safe principle, to interpret one document by referring to the recitals in another document. But where the Court has given a definite meaning to certain expressions that meaning should be applied, to such expressions in other cases. Neither the firman in Jewun Doss Sahoo v. Shah Kubeer-ud-din 2 M.I.A. 390 nor the one in Muzhumol Huq v. Puhraj Ditarey Mohapattur 13 W.R. 235 gives us any help as regards the meaning of Exhibit VI. In. Jugatmoni Chowdrani v. Romjani Bibee 10 C. 533 the requisites of a valid wakf are set out and in Sathianama Bharati v. Saravanabagi Ammal 18 M. 266 : 4 M.L.J. 223 : 6 Ind. Dec. 535 the original grant provided that the grantee was 'to improve the mutt, maintain the charity and be happy.' It was found that, according to the usage of the institution, the specific trusts to which the income of the village; was applicable consisted (1) in the distribution of sadavarthi (rice and condiments were supplied in lieu of cooked food) in, the mutt to Gosayi and other pilgrims who pass through Montithope; (2) in the maintaining of pooja or worship in the temple called Sankara Bharati Swami Kovil; (3) in supporting a watershed or pandal at a place near the village, called Ellandope, and (4) in providing maintenance to the descendants of the grantee. The learned Judges held: 'The conclusion to which we come is that the village was granted as an endowment to the mutt and the charities connected with it, and that what might remain after the due execution of those trusts was intended to be applied to the maintenance of the grantee or his descendants. 'The next contention on behalf of the appellant is that there was necessity for the alienation and, therefore, the debt is binding on the trust. There is no evidence that there was any necessity for borrowing such a large sum. Exhibit A is a usufructuary mortgage-deed in favour of Sri Ankitam Atchayamma by Joinabibi in which there is a recital to the effect that Rs. 150 per annum was the sum payable for lighting and other expenses of the Dargah and Rs. 100 per annum for the festival of Urs. If that was all the amount that was needed for the up keep of the Dargah it is not easy to conceive how such a large sum as Rs. TO,000 could have been required for the expenses of Dargah. There is no evidence that, owing to famines or other causes beyond the control of the Mutvalli, it was necessary to borrow for unkeep of the Dargah or for performing the annual festival. Though the District Judge has not discussed the evidence at great length, yet, in the absence of any evidence worth the name, it cannot be said that his finding as to the absence of necessity is wrong, It is for the plaintiff to make out necessity in a case like this, and the mere fact that there has been a debt outstanding for a long time is not a circumstance going to show that, when the debt was first incurred it must have been for a purpose which would bind the trust. From the conduct of the parties, who treated the wakf property, as, family property it can be safely inferred that they borrowed for their own purposes and it was only in the year 1884 that Jaina bibi was willing to acknowledge that the village in question was granted for offering services to the Asar Sheriiff at Chicacolle and for the expends as aforesaid and for the festivals in the Dargah. In the earlier proceedings affecting the plaint village there is no mention any when that it was granted for the purpose of any service; vide Exhibits H, J. and X. I, therefore, hold that no necessity has been proved in this case.
11. It is next contended by Mr. Madhavan Nair that he has prescribed for a mortgagee's title, and he relies upon Sontyana Gopala Dasee v. Inaputalabula Rami 64 Ind. Cas. 328 . He urged that the predecessors-in-title of the plaintiff were in possession from the year 1884 up to 190J3, and though he relinquished possession for a short time, yet possession was given back to him by the mortgagees though he could not collect the rent and that his possession was good in law. Granting that his contention is correct, he could only acquire title by prescription against the trustee or Mutwalli, I fail to see how he could prescribe for a title against the trust. If the properties are trust properties, any person claiming from a-trustee cannot acquire a prescriptive title against the trust. Exhibit A is a mortgage-deed dated 2nd December 1884 executed by Jainabi who was then the Mutwalli of the Dargah. Whether the documents is valid or invalid, it would not give a right to any body claiming under that document to prescribe for a title against the trust. Granting, for argument's sake, that the plaintiff has been in possession for more than 12 years under an invalid mortgagee-deed, and has prescribed for a title against the trustee, such prescriptive title will cease with the lifetime of the trustee. It is admitted that Jainabi died in 190a and Kurban Ali died in 1908. Jainabi was admittedly the Mutwalli during her life time and any title by prescription acquired against her would not avail against her successor as was decided in Vidya Varuthi Thirtha v. Swamigal Balusami Ayyar 65 Ind. Cas. 161 : 44 M. 831 : (1921) M.W.N. 449 . However, the plaintiff who is not in possession seeks to recover the mortgage amount by sale of hypotheca and is not resisting a suit for possession and he cannot, therefore, insist upon being redeemed. Therefore, there is nothing in this contention on behalf of the appellant.
12. There is one fatal objection to the claim of the plaintiff which has evidently been overlooked by the Court below. The plaintiff in Original Suit No. 42 of 1907 on the File of the District Court of Ganjam sued Qurban Ali and others for a share of the properties. The plaintiff herein was made the 10th defendant in that suit. The second defendant was Kulsam Bibi, the mother of the first defendant herein. In that suit Mr. Sadasiva Iyer, who was the then District Judge of Ganjam, found that the properties were wakf properties. Though he relied for his finding upon a previous judgment in Original Suit No. 22 of 1905 to which the plaintiff was not a party, yet he allowed him to let in evidence to show that it was the self acquisition of the first defendant. On the evidence he found that it was wakf property. The third defendant appealed against the decree. The appellant Chand Bibi did not make Gori Bi the first defendant herein who was added as the 18th defendant on thedeath of her mother, Kulsam Bi, party to the appeal. The appeal was heard by Abdur Rahim and Srinivasa Iyengar, JJ., who held that in the previous suit of 1905 the properties in dispute had been found by the then District Judge of Ganjam to be wakf properties and that that judgment was binding upon the parties: Vide Exhibit IV. They evidently overlooked the fact that the 10th defendant (plaintiff herein) was not a party to the suit of 1905. The learned Vakil who appeared for him did not bring to the notice of the learned Judge the fact that his client was not a party to the suit of 1905. They decided that the question whether the properties in dispute were wakf or not was res judicata between the parties and, therefore, could not be re-opened. Though there is a mistake of fact as regards the parties to the litigation of 1905 yet the learned Judge decided that the matter was res judicata between the parties and, therefore, it is not competent for us to go behind their decision.
13. It is urged by Mr. Madhavan Nair that the plaintiff was given his costs in the High Court and, therefore, the judgment is not binding on him. The plaintiff was allowed his costs evidently on the ground that he was a Receiver in charge of the plaint properties, and it cannot be said that he was exonerated with costs and that the suit was dismissed as against him. On the other hand, it is quite clear from the judgment that the learned Judges considered that the parties before them were parties to the previous suit, and, therefore, the question was res judicata between them. On this ground alone the plaintiff ought to have been non-suited. The appeal, therefore, fails and is dismissed with costs of first respondent.