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Mahammad Eshaque Vs. Mahammad AmIn and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKolkata
Decided On
AppellantMahammad Eshaque
RespondentMahammad AmIn and ors.
Cases ReferredSaadat Kamel Hanum v. Attorney
Excerpt:
- b.k. mukherjea, j.1. this appeal is on behalf of the plaintiff and it arises out of a suit, commenced by him, in the court of the sub-judge at burdwan for declaration of his title, as mutwalli, to certain wakf properties and for recovery of possession of the same. the question for consideration in this appeal hinges primarily upon the interpretation to be put upon certain words used in a persian document by which the wakf was created in the year 1849. the wakif was one munshi mahammad muzaffar, a man of fairly large means, who was an inhabitant of kusumgram in the district of burdwan. muzaffar married three wives, and had a son by each one of them. modessar was the eldest of his sons, born of his first wife osimannessa. the son by 'his second wife, was mahammad ismail and abdul ohid was.....
Judgment:

B.K. Mukherjea, J.

1. This appeal is on behalf of the plaintiff and it arises out of a suit, commenced by him, in the Court of the Sub-Judge at Burdwan for declaration of his title, as mutwalli, to certain wakf properties and for recovery of possession of the same. The question for consideration in this appeal hinges primarily upon the interpretation to be put upon certain words used in a Persian document by which the wakf was created in the year 1849. The wakif was one Munshi Mahammad Muzaffar, a man of fairly large means, who was an inhabitant of Kusumgram in the district of Burdwan. Muzaffar married three wives, and had a son by each one of them. Modessar was the eldest of his sons, born of his first wife Osimannessa. The son by 'his second wife, was Mahammad Ismail and Abdul Ohid was the son by his third wife. On 30th July 1849, Mujaffar executed'a wakfnama in Persian language by which he created a public wakf in respect of certain properties included in Mouza No. 5297 of the Burdwan Collectorate whieh were purchased by him at an auction sale. The wakfnama provided that the wakif himself would remain in charge of the endowment so long as he would remain alive and after his death his eldest son Modessar would be the mutwalli. The provision in the deed of wakf, as regards devolution of the office of mutwalli after Modessar runs as follows:

the said office shall devolve till the passing of ages (i.e. for ever) and repetition of months, as God the merciful wills upon the offspring of my son (ba farzandani fsrzandam) from generation to generation (Naslan baad naslin) womb after womb (batnam baad batnio).

2. The whole controversy in this case depends upon the meaning to be attached to the Persian words mentioned above, which I have placed within brackets. Muzaffar died in the Bengali year 1271, corresponding to the English year 1864, and after his death his eldest son Madassar became the mutwalli and possessed the wakf estate under the terms of the wakfnama. Madassar died in 1280 B.S. and thereafter his only son Munshi Mahammad Ebrahim became the mutwalli. Ebrahim died childless in April 1900 and upon his death his widowed sister Fatema laid claim to the office of mutwalli and filed a petition for registration of her name as mutwalli in respect of the landed properties, under the provisions of the Bengal Land Registration Act. Mahammad Ismail and Abdul Ohid, the two surviving sons of Mujaffar opposed the application. Ohid later on abandoned the contest and the Deputy Collector who heard the application granted the prayer of Patema and directed her name to be registered as mutwalli of the wakf properties. There was an appeal taken against this order by Ismail but the appellate officer confirmed the order of the Deputy Collector, leaving open the question of title, and directing Ismail to assert his rights in a civil Court if he so desired. No civil suit was filed by Ismail, and Patema acted as mutwalli till her death in November 1937. After Patema's death her son Ojhi who was the original defendant in this suit, had his name enrolled as mutwalli with the Wakf Commissioner, under the Bengal Wakf Act of 1934 and took possession of the properties. Thereupon on 20th April 1931, the plaintiff who is the eldest son of Ismail, who died during Fatema's life time, applied to the Wakf Commissioner for having his name enrolled as mutwalli after setting aside the previous order made in favour of Ojhi. This application was rejected and on 17th June 1939, this present suit was brought. The plaintiff's case as made in the plaint or rather during trial, was, that on a proper construction of the wakfnama the office of the mutwalli should be held to devolve, in the first instance on the male descendants of Madassar. Failing male descendants of Madassar the office would go to the other descendants of the wakif and the oldest and the most qualified among them should be appointed mutwalli, and no woman could hold the office so long as any male descendant was available. The position taken up by the plaintiff therefore was that after Ebrahim's death the proper person to hold the office was Ismail the father of the plaintiff, and Fatema had no legal title to mutwalliship. Now that Patema was dead, the plaintiff as the seniormost male descendant of Muzaffar was entitled to the office of mutwalli under the terms of the wakfnama, and Ojhi the son of Patema had no right to it. The younger brothers of the plaintiff were made pro forma defendants to the suit.

3. A written statement was filed by Ojhi the original defendant in the suit. Ojhi however died before the suit was heard and his son Mahammad Amin was substituted as defendant in his place. Amin adopted the written statement filed by his father, and his contention in substance was that under the terms of the wakfnama, the devolution of the office of mutwalli was to continue in the line of Madassar, and all his descendants through males or females were eligible to hold the office. So long as Madassar's line was not extinct, the plaintiff had no right to come in as mutwalli. The other contentions raised were, that on the plaintiff's own case, Patema having been in unlawful occupation of the office for more than twelve years the plaintiff's claim if any was barred by limitation, and that in any event, there wa3 Abdul Rashid, a son of Ohid, who was senior in age to the plaintiff and consequently had preferential rights to the office of the mutwalli.

4. The Sub-Judge dismissed the suit. It was held by the learned Judge that under the terms of the wakfnama, mutwalliship would devolve upon Madassar and his descendants and the expression 'Farzand' (descendants or progeny) would include female children and descendants through daughters as well. In these circumstances Fatema was validly appointed a mutawalli, and after her death her Bon, and grandson were entitled to hold the office. The plaintiff although he was senior to Rashid was not entitled to come in as mutwalli so long as Madassar's line was not extinct. The Sub-Judge held further that the plaintiff's claim if any was barred by limitation.

5. It is against this judgment that the present appeal has been preferred. Mr. Apurbadhan Mukherji appearing in support of the appeal has invited us to put an interpretation upon the material words of the document somewhat different from what was urged on behalf of his client in the Court below. His contention is that the terms of the document would not exclude the daughters of Madassar's family but would exclude descendants through daughters who would belong to a different family. According so the learned advocate, Fatema was no usurper and was entitled in law to hold the office as a laughter of Madassar; but her son and grandson would not rank as progeny or descendants of Madassar and would have no claim to mutwalli. Shin. The learned advocate contends that as the liue Madassar has become extinct, the plaintiff an the seniormost male descendant of the wakif is entitled to be appointed as mutwalli, and as Fatema had a legal title to the office no question of limitation would arise in this case.

6. Now the document is undoubtedly an abscure one, written in an extremely involved style in the Persian language, and the interpretion are not uniform as regards the interpretation to be put upon the material words used in it. The plaintiff produced one translation marked (Ex.1a) made by Mr. A. Bekhud, who was then a lecturer in Arabic and Persian in the Islamia College. Mr. Bekhud was examined as a witness In the case, and during his cross examination he produced another translation of the same document, which was marked Ex. (p) at instance of the defendant. The translation relied upon by the defendant was made by Mr. Abdul Alim an interpreter and translator attached to the Original. Side of this Court. The trial Court preferred the defendant's translation to that of the plain-tiff. It seems to us, that except in regard to the interpretation to be put upon a few words in the document, there is no substantial difference between the two translations. For purpose of convenience we would proceed on the translation made by the defendant's translator and accepted by the Court below, as the basis of our discussions, and we would point out at appropriate places, the particular words upon which the plaintiff wants us to put an interpretation different from that adopted by the lower Court. The material portion of the document has been thus not out in the judgment of the learned Sub-Judge, who for purposes of convenience has divided it into several clauses, though there is no such division in the original document.

Clause (a).-For the present, the management, performance and supervision of the duties of the 'tawliat' superintendence of the affairs of religious foundations) of the aforesaid endowed Mahal appertains to (i.e. remains in charge of) me, the Wakif (one who makes a charitable endowment). If during my life time, I, the Wakf, appoint my son, Munshi Mahammad Madassir, may God, the most High, preserve him, to the office of the 'tawliat,' well and good; and, in case I do not happen to do so, then after me the Wakif, the very said son of mine shall become the Mutwalli (trustee) of she said Mahal that has been made a Wakf of and similerly the said office (or duties) shall devolve, till the reassing of ages (i.e. till eternity or for ever), and repetition of months (i.e. month after month), as God the mereful wills, upon the children (i.e. off-spring) of my son, from generation to generation, and 'womb after womb.'

Clause (b)-But, whoever from among the mate issue of my son and of the children (off spring) of my son, is learned and God fearing, and virtuous, and adorned with the ornament of truth and purity, and embellished with the qualities of fidelity and honesty and celebrated for, and qualified with laudable qualities and pleasing manners, shall be appointed to the office of the aforesaid 'tawliat.'

Clause (c)-And as long as begetting and procreating continues from the stock, and family and blood connections (i.e. relations of me, the Wakif, whether male or female, the Judge of the time (i.e. the authorities in power) shall not be competent to interfere in any matter whatsoever by making any change or substitution (alteration).

Clause (d).-And, if from among the children of the Mutwalli, several persons are found to be adorned and qualified with the aforesaid attributes, then the person who is senior-most in age among them be entitled to the 'tawliat', and, supposing they be equal in age, then one of them shall be entitled according to the advice of religious Musalmans and sober (i.e. pious) learned men, and so long as there exist male issue, the said office shall not be transferred to female issue.'

Clause (e)-If by Divine decree the male issues become extinct, then it shall be transferred to the females, with the same aforesaid conditions as are applicable to the class of males and with the same, another condition also will be added (namely) that the husband of the females shall possess virtue and piety, learning and wisdom. And if, by sublime Divine decree, at any time, there be left not a single male and (or female) child from the stock and family (generations) of me, the Wakif, and from the children (offspring) of my son, and if this chain be severed, then at' that time it would be obligatory and binding upon the Judges of the time (i.e. the authorities for the time being) to dispense justice and equity, in the interest of the dignity of Government and state (or authority) and (thereby) to elevate to the office of the 'tawliat', some man from among the blood connections (relations) and kinsmen of me, the wakif, and (from among) the children (offspring) of my son who happens to possess ability, and aptitude for discharging the duties of the 'tawliat', and entrust this important matter to him, on the conditions mentioned above.

7. It can, we think, be fairly gathered from these several clauses read together that the primary intention of the founder was that after his death his eldest son Madassar was to be the mutwalli and the devolution of office after the death of Madassar, would continue in his lineal descendants. The office of the mutwalli, as Clause (a) provides 'shall devolve till the passing of ages... upon the children of my son (Ba Farzandani Farzandam) from generation to generation (naslan baad naslin) and womb after womb (batnan baad batnin). We agree with the Court below that the expression 'my son' as used in the singular is correct translation and it refers to Madassar alone. The dispute is with regard to the meaning of the words 'ba Farzandani' which have been translated as 'upon the children (offspring)' by the defendant's translator. Does the expression 'farzand' include children daughters? Mr. Gupta appearing on behalf of the defendant has fairly conceded that the word 'farzand' 'standing by itself may mean descendants through males only excluding the offspring of daughters. He contends however that it acquires a wider connotation and means descendants generally when the expression used is 'ba farzand' or there are words like 'naslan baad naslin' or 'batnan baad batnin' added to it. The point is important and requires careful consideration. But before we come to this point, it would be necessary to clear up several other matters which arise on the construction of the clauses set out above. Clause (b) it will be seen enumerates the qualifications of the Mutwalli and lays down that whoever amongst the male issue of offspring of Madassar is endowed with these qualifications he shall be appointed Mutwalli. The words 'my son' occurring in this clause refer in our opinion to Madassar and none else and taking Clause (a) and (b) together, the reasonable construction would be that Mutwalliship would in the first instance devolve upon the descendants of Madassar, generation after generation, and this means that the earlier generation would exclude the more remote. The position thus is that the office would not go to the succeeding generation unless the earlier generation is exhausted, and the holder of the office for the time being would not be a fresh stock of descent. Clause (c) should in all propriety have come at the end of Clause (e) and not between Clause (b) and (d). It lays down the general proposition that so long as any of the descendants and blood relations either male or female of the wakif would remain, the Judge (or Kazi) would have no authority to interfere with the appointment of Mutwalli. The meaning is not at all clear. So long as Madassar's line continues, no difficulty might arise for the wakif lays down that the Mutwalli is to be appointed from among the descendants of Madassar. But what happens when Madassar's line is extinct? Would then the office go straightway to the other descendants or blood relations of the wakif without any intervention by the Court? If so what rules of preference are to be followed in making the appointment? Should the Mutwalli be chosen from all the descendants and blood relations of the wakif or preference is to be given to nearness of relation and seniority in age? It is also not clear what 'blood relations' exactly mean. All these are debatable points, and we will have to come-back to the clause later on. Clause (d) provides that if amongst the children of the Mutwalli there are found more persons than one endowed with the qualifications which are enumerated in Clause (b), the senior-most amongst them would be appointed. Mutwalli, and if they are equal in age the choice would rest on pious Mussalmans. On no ground however a female could come in as Mutwalli, so long as a male is available. If a female has got to be appointed at all, it is laid down in Part 1 of Clause (e) that the husband of, the appointee must have all the qualifications which are prescribed for a Mutwalli under Clause (b). Clause (d) undoubtedly indicates that it was within the contemplation of the wakif that a female could be a Mutwalli under certain circumstances and the extreme contention put forward on behalf of the plaintiff, in the Court below, that only male descendants are eligible for appointment as Mutwalli has been rightly repelled by the learned Sub-Judge. The appellant's advocate, however, as said above, has entirely abandoned that line of argument before us. The controversy so far as Clause (d) is concerned relates to the meaning that is to be attached to the word 'Mutwalli' which occurs in the first line of the clause. According to the appellant it includes the wakif also, who is the first Mutwalli under the wakfnama, and therefore the provision relates to the descendants of Muzaffar as well. Mr. Gupta argues that the word 'Mutwalli' means the Mutwalli for the time being, and according to him this clause would indicate that each Mutwalli was to be a fresh stock of descent. We do not think we can accept this contention as sound, nor do we feel inclined to agree with the appellant that the word includes the wakif also. Clause (d) really comes as a corollary to Clause (b). In Clause (b) certain qualifications are laid down and any one amongst the descendants of Madassar who has these qualifications would be eligible for appointment as Mutwalli. Clause (d) provides how appointment is to be made, when more than one person having the requisite qualifications are available. We think therefore that the expression 'Mutwalli' in Clause (d) refers to Madassar, who alone was declared to be Mutwalli by the wakif. The last portion of Clause (e) introduces another obscure provision in the document. Obviously, it contemplates a state of things when there would be no descendants either male or female either of the settler or of Madassar alive. In such contingency the Kazi is to make the appointment, but the appointment has got to be made from among the blood relations and kinsmen of the wakif probably, meaning thereby his collaterals and distant kindred; it is conceded by Mr. Gupta that it would be very difficult to reconcile this provision with that contained in Clause (c). Clause (c) also speaks of blood relations and expressly forbids interference by a Judge in the matter of appointment of a Mutwalli when blood relations are in existence. We may have to advert to this portion of Clause (e) later on. The most important question which we have to consider is whether the appellant is right in his contention that the daughter's descendants of Madassar are excluded from the line of devolution of Mutwalliship as laid down in Clause (a) mentioned above. To decide this point, it would be necessary first of all to certain what is the exact meaning of the word 'farzand' as used in the clause. We have to consider then how far the original meaning of the word is extended by reason of the expression be farzand', or the addition, of words like 'naslan baad naslin' and 'batnan baad batmn.' 'Farzand' is a Persian word of which the Arabian synonym is 'Awlad' (Bailee I, 570-72). In Wilson's Glossary (vide Wilson, page 157) the neaning of 'farzand' is said to be offspring, progeny, a son or daughter, child or children, in legal language the word 'farzand' means lenial decendants in the male line, females and their posterity are excluded except the person's own laughter. According to the rules of interpretation laid down by the Mahomedan Jurists, if a man creates a wakf simply for his 'walad' or children, then the children of his loins both male and female would take the produce. If there is no child of his loins, but there is a child of his son the produce is to go to the son's child, but the child of a daughter is not included according to the approved doctrine: (Fatwa Alamgiri. vol. II, page 474, Ameer Ali, vol. I, p. 354). The reason is that 'walad' means a man's own children; son's children according to custom are his own children but not daughters' children as they belong to a different family (vide Raddul Muktor, vol. III, p. 672). There is a difference of opinion among Mahomedan Jurists regarding exclusion of daughter's children when more than one generation is mentioned (vide Ameer Ali, vol.I,p. 355). According to the view expressed in Fatwa Alamgiri however when the appropriation is for the benefit of the children and the children's children, the children of daughters are not included. In the Khizanut-ool-Mooftieen it is said 'If a man appropriates an estate to be enjoyed by his descendams, in perpetuity so long as the race continues, and he leaves children and children of his male children, it will be divided among them equally, and no preference will be shown to the males over the female. But the children of females are not reckoned-among the lineal descendants according to the approved doctrine... because the descendants of a man's daughters are not the lineal descendants of that man, lineage being derived from the father and not from the mother.' Quoted in Macnaughten's Principles and Precedent of Mahomedan Law (p. 332). In Macnaughten's Principles and Precedent of Mahomedan Law a case is discussed where the grant of the office of a Mutwalli was made to one Md. Rufeeq, and declared heritable by his Furzumdam or offspring. It was held that the grandson in the female line of the grandson in the male line cannot be enumerated among the 'furzundam' or offspring or lineal descendants; because when these terms are applied relating to a person, they mean only those who are the lineal descendants of that person or his descendants in the male line how low soever but a grandson in the female line takes his descent from his own father and not from Md. Rufeeq (vide Macnaughten, p. 332). In Hja-on-nissa v. Md. Moful-kir-ol-Islam 1 S.D.A. 106, it was definitely held that the Arabic plural 'aulad' and its Persian equivalent 'farzandam' are understood to include both sons and daughters and all descendants in the male line but not descendants in the female line (see in this connection Tyabji, Section 511 (1-a), Bailee I, page 568 (para. 2 (577)). There is also decided authority which holds that when the word 'aulad' is repeated and the expression used is ''aulad-dar-aulad' even then the daughter's descendants are not included: Abdul Ganee Kasam v. Hussein Miya ('73) 10 Bom, H.C.R. 7. It can safely be held therefore that the preponderance of authorities is clearly in favour of the view that the expression 'farzand' or 'aulad' would not ordinarily include the descendants of female children, though the daughters themselves would be included in it. The law on this point is thus summed up in R. Wilson's Digest of Anglo-Mahomedan Law:

Though the daughters themselves are included under such general terms as 'child' or 'children' their children and remoter descendants are not admitted to share with descendants in the male line unless some special term clearly indicating such an intention is employed. (Article 326).

The correctness of this statement of law has not been disputed by Mr. Gupta. We will have to consider therefore whether there are any special terms here which Would take the case out of the purview of the ordinary rule. It is settled by authorities that 'Ahfad' is a word of the largest and most general signification, and includes the descendants of male as well as of females, similarly the words 'Nasl' and ' Zariat' would refer to all descendants male or female near or remote (Tyabji, Section 511 (5), p, 639; Bailee 1, 572 para 4). In Sheikh Harimuddin v. Mir Sayad Alam ('86) 10 Bom. 119, a certain village was granted by the Mogul Government in the name of two persons and their 'aulad va ahfad' for the maintenance of a Darga. The plaintiff who was a grandson of a daughter of one of the male descendants brought the suit for recovery of a certain share in the mam. It was held that the expression 'ahfad' was wide enough to include the descendants of a daughter and the plaintiff was entitled to succeed. Sargent C.J. in course of his judgment observed as follows:

Had the intention been to limit the class of descendants exclusively to persons claiming through males it is difficult to suppose that the general expression 'aulad va ahfad' would have been used and not 'aulad dar aulad' which admittedly would include them.

In the case before us we have neither the word 'ahfad' nor any expression like Nasl or Zariat. Mr. Gupta lays stress on the word ba farzand, and also on the expression 'naslan-baad naslin' and batnan baad batnin, coming after 'farzandam.' The preposition'ba' means'to' 'with' or 'in' livide Richardson, Persian Arabic and English (Dictionary, p. 224). 'Ba Farzandam' literally means 'with children' and when these words are added to a grant, and occur after the name of the grantee they are construed to be words of limitation, and indicate that the grantee gets an absolute or heritable estate and not a mere estate for life. Thug if an estate is granted to A 'with children' A gets an absolute estate and the children acquire no interest by the grant (Bailee I, p. 580-81, Edn. 2). This proposition however does not really assist Mr. Gupta's client. In the first place there is no transfer of secular interest in any property in the present case, but mere creation of a religious office and no question of absolute or heritable right arises with regard to the office of a mutawalli under Mahomedan law. But what is more important is that the grant is not made here to a particular person and his children. All that the deed provides is that mutawalliship would devolve upon the children of the son (i.e. Madassar). 'Ba' is here used in the sense of 'to' or 'upon' and that is exactly how it has been translated by the defendants' translator.

8. The expressions 'naslan baad naslin' and batnan baad batnin both of which occur in the wakfnama, are really terms of art, which subject to surrounding circumstances and context, ordinarily confer absolute interests (Tyabji-Mahomedan Law, Section 511 (5A). Whenever a grant is made to a person with these words added to it, it may be presumed that the grantee takes an absolute or heritable estate. But as said above there is vital difference between the grant of a secular estate and the creation of a religious office, and no question of an absolute or heritable right could possibly arise in regard to the office of the mutawalli of a wakf. Mr. Gupta lays considerable stress upon a decision of the Madras High Court which is to be found reported in Mahomed Ghouse v. Sayabiran Sahib ('35) 22 A.I.R. 1935 Mad. 638. We think that the learned Judges rightly pointed out in that case that although in deeds relating to private property the words 'naslan baad naslin' & would be construed as words of limitation and would confer an absolute estate in the grantee, the same consequences would not follow when the document lays down the line of devolution for a religious office. But we cannot agree with the learned Judges that these words literally construed would lead to the result that persons claiming through females would also be included. Of the three decisions referred to in the judgment, two really lay down the opposite view whereas in the decision of the Allahabad High Court upon which the learned Judges purported to rely, this question was neither raised nor decided. We think that the proper significance of the expressions 'naslan baad naslin' and 'batnan baad batnin' is what was indicated by the Judicial Committee in their recent pronouncement in Saadat Kamel Hanum v. Attorney-General for Palestine 26 A.I.R. 1939 P.C. 185. The case came from Palestine and arose out of a suit to recover property of a wakf for the benefit of all interested. The questioner consideration was one of limitation which was to be decided under Art, 1661 of the Ottoman Civil Code; but in the course of the judgment Sir George Rankin discussed the meaning of the expression 'generation after generation' when it is used in deeds creating wakf. The real object, his Lordship pointed out, of introducing these expressions in deeds of wakf is to prevent nearer and more remote descendants from being treated alike. As has been stated in the Fatwa Alamgiri (Crl. II p. 474):

And if he should say 'upon my child, and child of my child, and child of the child of my child' mentioning three generations, the produce is to be expended upon his children for ever, so long as there are any descendants and is not to be applied to the poor... the nearer and more remote being alike unless the appropriator say in making the wakf 'the nearer is nearer' or say on my child then after that on the child of my child or say 'generation after generation' when a beginning must be made with whom the appropriator has begun.

9. We think that this principle applies in its entirety to the facts of the present case. The wakif has laid down that the descendants of Madassar would hold the office of the Mutwalli. Taking literally the expression 'children' or descendants would mean all descendants nearer and more remote. The words 'generation after generation' have made it clear that the earlier generation would exclude the more remote and unlees the earlier generation is exhausted no Mutwalli is to be appointed from the succeeding generation. This we think is the true meaning of the expression used in the document. There is no indication anywhere that the wakif intended that the children of Madassar, would include his daughter's children as well. We cannot say that the point is altogether free from doubt and our difficulty is enhanced by the fact that neither ourselves nor the learned lawyers appearing before us are acquainted with the Persian language in which the document is written.

10. In these circumstances the safest thing for us to do is to proceed on the authority of decided cases as far as possible and not to base our decision purely on the dictionary meaning of the words used. Our conclusion is that the appellant is right, in his contention that the words 'children of my son' as used in Clause (a) as mentioned above, do not include the daughter's children of Madassar. Fatima Bibi therefore was rightly appointed a Mutwalli, and no question of limitation arises in this case. The defendant must be held to be outside the line of Madassar's children upon whom the office of Mutwalli is to devolve under the terms of the wakfnama. The question now is whether the plaintiff is entitled to a declaration of his title as Mutwalli of the wakf estate. The learned advocate for the appellant relies upon Clause (c) of the document, and some portions of the other clauses as well and his contention is that on failure of Madassar's line the office would go to the senior most male descendant of the wakif himself. A civil Court can declare the title of the plaintiff as Mutwalli only if his rights are established on the contents of the document itself otherwise it would be a question of appointing a Mutwalli, which can be done by the principal civil Court of the district as Kazi. In view of the construction which we have placed on the document it must be held that the line of Madassar's descendants is extinct. The question now is whether in such a contingency the document itself provides a rule under which Mutwalliship would devolve upon a particular person. Obviously, Clause (c) upon which the learned advocate for the appellant primarily relies is by itself of no assistance to him. That clause lays down in a purely negative manner that so long as the descendants and blood relations of the wakif either male or female would remain the Judge (or authorities in power) would not be competent to interfere by making any change or substitution. The meaning of this 'clause as said already is not quite clear. The intention of the founder presumably was that when the specific line of devolution of the office of mutwalli as laid down by him would be extinct, the mutwalli would have to be appointed from amongst his descendants and blood relation either male or female. The authorities in power would not be entitled to bring in any outaider or otherwise interfere with the administration of the endowment. This intention has also been expressed in the last part of Clause (e). Clause (c), however does not lay down in what way, or in what order the appointment has got to be made from amongst the descendant or blood relations of the founder, and whether preference is to be given to agnatic relations or to age or nearness of relationship with the founder. Rules of appointment have been laid down with regard to the descendants of Madassar, but not in respect of the offspring or blood relations of the wakif himself. The learned advocate for the appellant wants us to hold that the expression 'Farzandam' (son) occurring in both Clause (a) and (b) means 'sons' in the plural and includes the other sons of the wakif besides Madassar. This contention we are unable to accept, and as said already, the word 'son' used in both the clauses refers to Madassar and Madassar alone. We have also held that the word 'mutwalli' as used in Clause (d) relates to Madassar and does not refer to the wakif who might have acted as Mutwalli so long as he was alive. This being the position the plaintiff cannot invoke the provisions of Clause (a), (b) and (d) in his favour, and Clause (c) by itself does not enable the Court to assign a definite place to the plaintiff amongst the descendants and relations of the founder for the purpose of being appointed a mutwalli to the wakf estate. In these circumstances our conclusion is that with the extinction of the line of Madassar, the specific rules laid down by the founder for devolution of the office, of the mutwalli have also come to an end, and it is now for the Principal Civil Court of the District to make an appointment having in view the wishes of the founder and the general principles of Mahomedan law.

11. The present suit brought by the plaintiff for declaration of title as mutwalli on the basis of the wakfnama cannot succeed, and on that ground and that ground alone this appeal would also fail.

12. It would be open to the plaintiff, the defendant or any other relations of the wakif to make a proper application to the District Judge as Kazi for appointing a mutwalli of the wakf estate under the Mahomedan law.

13. Having regard to the complicated nature of the questions involved in the construction of the document and the decision of the main question in favour of the plaintiff we direct that both the plaintiff and the defendant would be entitled to the costs of the suit and the appeal out of the wakf estate. As the plaintiff was allowed to file the suit and appeal as a pauper, the Government would be entitled to the court-fees, which we direct shall also come out of the wakf estate. We desire to point out, that the court-fees payable for this suit have not been calculated by the Court below on proper basis. It is true that the suit being one for possession ad valorem court-fees should not be paid on the market value of the wakf properties. The plaintiff was undoubtedly suing as mutwalli and be wanted to recover possession of properties, admitted by the defendt to be wakf properties, solely in that 'capacity. The mutwalli is not the owner and he can be called upon to value his suit in accordance with his estimate of what the value of his rights as mutwalli of the properties would amount to. The Court can certainly 'check this estimate and decide for itself on proper materials as to what the valuation should be. The court-fees for the suit as well as for the appeal would be deter, mined on the basis indicated above and court-fees thus determined would be paid to the Government out of the wakf estate.

14. The appeal is dismissed, and the case' would go back to the trial Court for determination of the court fees payable to Government.

K.C. Chunder J.

15. I agree.


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