A. Alagiriswami, J.
1. The appellant in this case is the plaintiff. The suit relates to a wakf property. The wakf was created by one Shaik Hussain under a document, Exhibit A-1 dated 19th February, 1904. Under this document, Shaik Hussain provided that his three sons Sheik Ismail, Mohamed Hussain and Abdul Gafoor were to be joint trustees after him. Defendants 4 and 5 are the sons of Sheik Ismail and Mohammed Hussain respectively and the plaintiff is the son of Abdul Gafoor. The fourth defendant executed two possessory mortgages, Exhibits B-9 and B-32 to one Subramaniam over the property. This Subramaniam assigned the othi to one Palavesa, who in turn assigned it to the first defendant. The first defendant created a othi of his othi right in favour of one Burhan Ali, who has assigned it under Exhibit B-33 to the second defendant, who is first defendant's wife. The third defendant is a vendee from the fourth and fifth defendants of the wakf property under Exhibit B-7 dated 14th April, 1950 and Exhibit B-5 dated 24th February, 1949, respectively. The plaintiff filed the suit out of which the second appeal arises for possession of the wakf property on the ground that it had been wrongly alienated by defendants 4 and 5. The trial Court held that though the othi in favour of defendants 1 and 2, was not valid by itself, defendants 1 and 2 have prescribed for their rights as mortgegees by adverse possession and that, therefore, that is a othi binding on the wakf; but as regards the alienation in favour of the third defendant, the trial Court held that it was not valid or binding and that the plaintiff was entitled to possession of the property. The plaintiff did not appeal against the decree of the trial Court in so far as. it held that defendants 1 and 2 had obtained title as mortgagees by adverse possession. But the third defendant alone appealed and the lower appellate Court has held that while the plaintiff as a worshipper is entitled to maintain the suit, he was not entitled to maintain a suit for possession. In effect, it held that the mortgeges in favour of defendants 1 and 2 were binding, that the alienation in favour of the third defendant is not valid or binding, that the plaintiff though entitled to maintain a suit for declaration, was not entitled to file a suit for possession, that the plaintiff is not a Muthavalli and only a Muthavalli appointed by Court could get a decree for possession. It also held that as the property was under a mortgage, there was no urgency about a decree for possession. In so far the lower appellate Court held that the plaintiff is not a Muthavalli, it is undoubtedly correct; nor are defendants 4 and 5, Muthavallis. Alienations by defendants 4 and 5 in favour of the third defendant are therefore clearly invalid and not binding on the trust. Unfortunately nothing can be done about the othi in favour of defendants 1 and 2 at this stage as the plaintiff did not file any appeal with regard to that.
2. But there is no doubt that even a worshipper will be entitled to maintain a suit for possession of a trust property where the trustee has alienated the trust property and would not proceed to recover possession of the same or has disabled himself otherwise from maintaining a suit in respect there of, or declines to institute a suit. The worshippers are in that case entitled to maintain a suit for preserving the trust property or restoring the property to the trust either by instituting a suit for declaration or for an injunction or even for possession. If the suit is one brought for possession by the worshippers, the Court can, after declaring the property' to be trust property and setting aside the alienation, direct delivery of possession to the trustee. In cases where there is no trustee, it is open to the Court to direct delivery of possession to the worshippers on behalf of the trust. It has been so held in the decision in Rengasami Naidu v. Krishnaswami Aiyer : (1923)44MLJ116 . This has been followed in the decision in Ahmed Kutty v. Aylthraman Kutty : AIR1937Mad819 . In fact, in Zafaryab Ali v. Bakthawar Singh I.L.R. (1883) A11.497, a relief by way of an injunction for removal of a building was granted in respect of a mosque property. In Muhammad Alam v. Akbar Hussain I.L.R. (1910) All. 631, the learned Judges cite the decision in Zfaryab Ali v. Bakthawar Singh I.L.R. (1883) A11.497, with approval and also a passage of Ameer Ali in his work on Mohamedan Law, where the learned Author observes:
Every Mahomedan who derives any benefit from a wakf or trust is entitled to maintain an action against the Mutawalli to establish his rights thereto, or against the trespasser to recover any portion of the wakf property which has been misappropriated.
In Fahimul Huq v. Jagat Ballav I.L.R. (1923) Pat. 391, it was observed thus:
It is now well settled that a beneficiary of a trust in respect of a Mohamodan wakf interested in the maintenance of a mosque or other charitable institution may, without having recourse to the provisions of Rule 8, Order 1, Civil Procedure Code, and without other beneficiaries, sue for recovery of possesion of property wrongfully alienated by the trustee and for the incidental declaration that the properties are the subject of the trust and that they cannot be alienated.
The same view was taken in Ashraf Ali v. Muhammad Nurajjama 23 C.W.N. 115. This Court has held in Subramania Iyer v. Nagaratna Naicker : (1910)20MLJ151 , that it is competent to a worshipper to maintain a suit in ejectment against the alienee in possession of the trust property and direct delivery of possession of the trust property to the trustee after declaring the alienation invalid. Discussing this case Venkatargmana Rao, J., in Ahmed Kutty v. Ayithraman Kutty : AIR1937Mad819 , has observed as follows:
The principle underlying such a suit has been that the suit is really on behalf of the trust and the worshippers must be deemed to be suing in right of the trustee as pointed out in Chidambaranatha Thambiran v. Nallasiva Mudaliar (1918) 33 M.L.J. 357 : I.L.R. (1918) Mad. 124, but in cases where possession cannot be awarded to the plaintiffs on the ground that there is a lawful trustee and that such a trustee has not been made a party to the suit, the suit cannot be dismissed, for other reliefs can be granted, for example, a declaration that the property is trust property; vide Kaji Hassan v. Sagun Balakrishna I.L.R. (1899) Bom. 170.
Thus there is ample authority for the position that where the trust property has been alienated by the trustee and is in wrongful possession of a trespasser, it is open to any worshipper to maintain a suit even for possession, if there is no lawful trustee. In this case, there is no lawful trustee and the third defendant who was appointed as Muthavalli by the Wakf Board cannot be deemed to be the managing trustee because he is himself the alienee of the trust property. The plaintiff is, therefore, entitled to a decree for possession of the suit property on behalf of the trust. But, unfortunately, he cannot get possession because the Courts below have held that there is a valid possessory mortgage over the property and that decision stands. It is, therefore, open to the plaintiff to redeem the mortgage and get possession. Similarly, any trustee that might be appointed either by the Court, or by the Wakf Board, can get possession of the property by redeeming the mortgages.
3. The appeal is, therefore, allowed in part and there will be a decree for redemption and possession in favour of the plaintiff on behalf of the trust. Defendants 3, 4 and 5 will pay the costs of the appellant.