1. This appeal arises out of a suit in which the plaintiff claimed to be mutawalli of the lands which admittedly formed part of waqf lands prior to Exhibit I, dated 27th May 1867, and which were then admittedly attached to a mosque. The lands referred to in the plaint formed a portion of those lands and are now in the possession of defendants Nos. 4 and 5. The issues raised in the suit, so far as at present material, are as follows:
2. (1)'Whether the plaintiff is the present mutawalli of the plaint-mentioned Masjid and as such entitled to the possession of the suit lands;
3. (2) whether the defendants Nos. 4 and 5 are entitled to hold and enjoy the lands as managers of the plaint mentioned Masjid;
4. (3) is the suit barred by limitation?'
5. The District Musif found:
6. (1) that the plaintiff had failed to prove that he was solely entitled to the mutawalli ship of the Masjid;
7. (2) that defendants Nos. 4 and 5 had acquired a title as against the plaintiff to hold the lands as trustees of the Masjid; and
8. (3) that the suit was barred by limitation.
9. The District Judge does not appear to have recorded any finding on the issues, but he refers to the fact that the District Munsif found that the plaintiff's suit was barred by limitation and says: 'Were it necessary to give a finding on this point I should be inclined to hold... that the plaintiff's suit would be barred by Article 144 of the II Schedule of the Limitation Act.' Then he goes on to say: 'The father of defendants Nos. 4 and 5 came into possession of the suit property under a family agreement entered into 'by the members of the family of the individual who was mutawalli at the time of the inam settlement;' and he refers to Ramanathan chetti v. Murugappa Chetti 27 M. 192 : 13 M.L.J. 341. In concluding his judgment he says: 'I am unable to see how the arrangement made under Exhibit I is prejudicial to the Masjid and I concur in the District Munsif's finding that the plaintiff cannot recover the suit land from defendants Nos. 4 and 5, unless he shows that the agreement entered into under Exhibit I has not been properly carried out.' The only finding, therefore, that can be spelt out of the District Judge's judgment is that in his opinion the agreement under Exhibit I is a family arrangement and that it is legal and effective. I can only say that the District Judge is, in my opinion, entirely mistaken in law. There is no power in the mutawalli of a mosque to effect a partition of the lands belonging to a waqf, and, assuming that the District Judge, states correctly the effect of the decision in Ramanathan chetti v. Murugappa chetti 27 M. 192 : 13 M.L.J. 341 I am unable to see how the rules applicable to arrangements made by co-trustees for the proper management of their trust amongst themselves can affect the question whether a mutawalli can divide up the trust properties themselves and apportion them between more persons than one as if they had been the private property of the mutawalli, Where a mutawalli purports to do this, in my opinion, there can be no doubt that the act is illegal. See Kazi Hassan v. Sagun Balkrishna 24 B. 170 : 1 Bom. L.R. 649.
10. The District Judge has not recorded any finding on the question, whether by the operation of the Limitation Act the person who will rightfully represent the trust can any more claim the properties in the possession of the 4th and 5th defendants on behalf of the trust. Nor has ho recorded any finding on the question whether the plaintiff is the person rightfully entitled to represent the trust. The case must, in my opinion, go back for findings on these issues and on all the other issues framed in the suit.
11. I wish to point out that the questions involved in the first and second issues are entirely distinct. The real question involved in the 1st issue is whether, assuming that the lands which are the subject-matter of the suit are still part of the waqf lands, the plaintiff is entitled to represent the waqf and as such to be in possession of all the waqf lands. The 2nd and 3rd issues involve the question whether, assuming that the plaintiff is entitled to represent the waqf, these lands form part of the waqf lands or whether the title of the waqf to obtain possession of the lands is lost by limitation.
12. It must bo pointed out that any person interested in the due administration of the waqf is entitled to sue for a decree that improper alienations of the waqf property should be set aside and that the property purported to be alienated should be declared to continue to belong to the waqf. If, therefore, the alleged partition-deed, Exhibit I, is in effect an alienation of the waqf property, it can be questioned by the plaintiff though the plaintiff may not be able to establish that he is the present mutawalli or that he is entitled as such to be, put into possession of the property belonging to the waqf.
13. Findings in six weeks and seven days for objections.
14. White, C.J.--I have read the judgment which has been written by my learned brother and I concur.
15. In compliance with the order contained in the above judgment, the District Judge of Chingleput submitted the following.
16. Finding.--1. In connection with Second Appeal No. 1345 of 1911 on the file of the High Court, I am directed to return findings upon the issues originally in suit as well as upon new issues as follows:
17. (i) Whether by the operation of the Limitation Act the person who will rightfully represent the trust can any more claim the properties in the possession of the 4th and 5th defendants on behalf of the trust.
18. (ii) Whether the plaintiff is the person rightfully entitled to represent the trust.
19. 2. The suit property admittedly forms part of that granted as inam for a certain Muhammadan Masjid in the village of Ambi. The extract of the Inam Register, Exhibit A, shows that one Raja Hussain Siddikh was one of the two keepers for the time being in the year 1862. There is no evidence as to what became of the other keeper for the time being. Raja Hussain Siddikh had only two sisters, and in 1867 he partitioned the Masjid inam, giving the plaint land, representing the one-third share of his sister, Khadir Unissa, to her son in-law, Mahomed Apan Sahib, on condition that she got her share of Masjid service performed by the said Apan Sahib. The 4th and 5th defendants are sons of Apan Sahib and admit they hold the plaint land as a trust, the 5th defendant stating in his evidence that each of the three branches has a turn of ten years, that he had his turn fifteen to five years ago, that the plaintiff is doing his turn for the last five years, and that all the three branches together do repairs to the Masjid. There is, however, no evidence to prove this theory of turns, and I quote it merely as an admission against the 4th and 5th defendants that they hold the plaint lands as a trust attached to the office of mutawalli in the Masjid.
20. 3. The plaintiff asserts that he is the sole mutawalli, and as such entitled to hold the plaint lands. He has not shown how he came to be mutawalli or who appointed him, except that he is a grandson of Raja Hussain Siddikh, and that his mother was holding the office for him, through agumastah during his minority. The original first issue and the new second issue were answered by the District Munsif in the negative. My predecessor did not specifically answer this issue, but he presumably did not find it in the affirmative for he did not decree the suit. I have examined the evidence on record and I am of opinion that the answer must he in the negative.
21. 4. As regards the new first issue the 4th and 5th defendants admit that they hold the property on behalf of the trust, and I, therefore, find that the person who will rightfully represent the trust can claim the properties in the possession of the 4th and 5th defendants on behalf of the trust, and that such claim is not barred by the Limitation Act.
22. 5. The important issues in the suit are the original second and third issues. It is now decided that the partition made by Raja Hussain Siddikh under Exhibits I and II in 1867 was utterly invalid under Muhammadan Law, and that point is, of course, no longer open to question. The fact remains, however, that the partition was actually effected and has continued in force until the present time. That is the finding of the District Munsif and of my predecessor and upon the evidence I cannot but concur. Muhammadan Law is but imperfectly known and understood in the Mofussil of Southern India, and it is not uncommon to find Muhammadans following the Hindu Law of: joint family estate and of partition. A very common method of dealing with hereditary services is to partition the inam lands upon the understanding that the various branches of the family shall hold office in rotation for a period proportionate to the share in the estate. That is undoubtedly what was intended by Exhibits I and II, namely, that the family of Khadir Unissa took one-third of the service lands and was to perform one-third of the duties of office. The real question in the suit then is whether the 4th and 5th defendants are entitled to hold one-third of the office, and with it, the plaint lands. The finding of the District Munsif and of my predecessor is that the plaintiff is tarred by limitation from recovering the one-third share of office from these defendants. I must concur in thin finding. The arrangement is no doubt utterly illegal under Muhammadan Law, but until the situation is dealt with by a suit for a scheme of management or by some such method, it must continue. It does not appear to have been explained how the share of one sister, as against a brother and another sister, was one-third; but this possibly is merely another instance of how Muhammadan Law is misunderstood in the Mofussil.
23. 6. The fourth issue was found against the 6th and 7th defendants and this findinghas net been questioned in appeal, so remains good.
24. 7. The other issues require no finding.
25. This second appeal coming on for final hearing on 13th of October 1914, after the return of the finding from the lower Appellate Court on the issues referred by this Court for trial and having stood over for consideration till this day, the Court delivered the following
26. Tyabji, J.--The dismissal by the District Munsif of the plaintiff's suit for the recovery of the waqf properties mentioned in the plaint was upheld by the District Judge without any findings as to the necessary facts, on the untenable ground that a mutawalli may validly partition waqf lands and give effect to an arrangement that a person 'should enjoy one-third of the inam lands and should do a share of the service due at the Masjid,' Neither the waqf property nor the duties of the mutawalli can be lawfully 'partitioned. The rights of the mauqufalaih or beneficiaries cannot be affected by such an arrangement, unless by operation of the Indian Limitation Act.
27. It became necessary, therefore, to ask for findings from the District Court.
28. The findings now submitted by another learned Judge appear to be: (1) that the parts of the waqf lands now in question are not lost to the waqf by adverse possession; (2) that the plaintiff is not 'the sole mutawalli' nor as such entitled to hold the plaint lands'; (3) that the 4th and 5th defendants are actually in possession of the lands' under the 'partition' already referred to; (4) that though the arrangement is 'utterly illegal,' it 'must continue until the situation is dealt with by a suit for a scheme of management or by some such method' and (5) that 'the plaintiff is barred by limitation from recovering the 1/2 share of office from' the 4th and 5th defendants.
29. The expression 'sole mutawalli' is used by the learned District Judge not in contrast to a body of co-trustees administering the uaqf as one collective possession in their joint capacity, in whom the whole of the waqf property is jointly vested. The expression is evidently used by the learned Judge under the erroneous impression that both the plaintiff and the 4th and 5th defendants have some title to be separately in possession of parts of the waqf property 'until the situation is dealt with by a suit for a scheme' or as above stated.
30. The texts of Muhammadan Law ordinarily contemplate only one mutawalli; but when two or mere persons are appointed with the intention that they should jointly administer a single waqf and there is nothing to prevent such an appointment their position would be similar to that of any other body of co-trustees. Such a 'partition' as is referred to above would not affect their legal position or joint responsibility: Robinson v. Harkin (1896) 2 Ch. 415 : 65 L.J. 773 : 44 W.R. 702 : 74 L.T. 777 : Lewis v. Nobbs 8 Ch. D. 591 : 47 L.J. Ch. 662 : 26 W.R. 631.
31. What the District Judge intends to find seems to be that no one person is entitled to claim the whole waqf property without there being a scheme.
32. There is no necessity, however, for a scheme in a case where there is a waqf and no person is lawfully administering it. For the law relating to waqfs makes it incumbent on the Court to designate the person who, in accordance with the terms of the dedication (or waqfnama), is entitled to act as mutawalli; and if there are no directions by the author of the waqf on this matter, it is for the Court to appoint a mutawalli : Phatmabi v. Haji Abdulla 21 Ind. Cas. 964 : 26 M.L.J. 115 : 14 M.L.T. 568 : (1914) M.W.N. 75. It is also for the Court to insist upon the proper administration of the waqf, and for that purpose it will remove any mutawalli (much more an unauthorised person who is not lawfully clothed with the status of mutawalli) who is guilty of misconduct or whose removal is required for the welfare of the waqf: Chintaman v. Dhondo v. Damodar v. Bhat Bogilal 22 B. 493 even though the author of the waqf should have appointed himself mutawalli and even though he should have laid it down as a term of the dedication that the mutawalli should not be liable to be removed: Baillie's Digest, Vol. I; p. 592 (1st edition), Grady's Hedaya, p. 329, and even though the parties themselves by their pleadings do not ask for his removal, Wrightson, In re: Wrighison v. Cooke. (1908) 1 Ch. 789 : 77 L.J. Ch. 422 : 99 L.T. 799.
33. This jurisdiction, however, can only be exercised by way of 'directions necessary for the administration' of waqfs: Neti Rama Jogiah v. Venkatacharlu 26 M. 450 under Section 92 of the Civil Procedure Code.
34. The error, therefore, of the District Judge, by which he considers the plaintiff to have made out some show of title to be recognised as mutawalli in regard to what he terms a share of the office, cannot be so utilised as to deprive the 4th and 5th defendants of their possession which has been supported on the same basis.
35. It is clear that but for the misapprehension of the law by the District Judge his finding would have been as unequivocally against the plaintiff as the District Munsif's. Invoking, therefore, (in so far as necessary) this Court's powers under sectipn 103 of the Civil Procedure Code, the finding may be considered to be that given by the District Munsif. The fact that the basis on which the 4th and 5th defendants' claim is supported is also erroneous, does not affect the decision in a suit which is not instituted under Section 92 of the Civil Procedure Code, and in which the plaintiff can only succeed on his own present title irrespective of any appointment by the Court.
36. The result will be that the appeal will be dismissed.
37. The defendants have made common cause against the plaintiff on the basis of an utterly illegal arrangement made in breach of trust. They will bear their own costs throughout.
38. This judgment will be communicated to the Advocate-General and the Collector (sections 92 and 93 of the Civil Procedure Code).
39. Oldfield, J.--I concur in my learned brother's decision and do not oppose the communication of a copy to the Advocate-General and the Collector.