Mookerjee and Vincent, JJ.
1. This appeal is directed against the decree in a suit to enforce two mortgage securities executed by the first defendant on the 10th May 1895 in favour of one Ishan Chandra Addya, now represented by the plaintiffs-appellants. One of these bonds was for Rs. 1,500 and the other for Rs. 1,000. No question arises in the present appeal as to the first of these two bonds. As regards the second bond, one of the properties included in it was covered by a deed of waqf executed on the 29th August 1862, under which the mortgagor was made a mutawalli. The question in controversy between the parties relates to the validity of the mortgage in respect of the waqf property. The circumstances under which the waqf property was given in mortgage are not disputed. The properties included in the deed of waqf were zemindaries liable to be partitioned under the Estates Partition Act. In 1894, one of the co-sharers in the property commenced proceedings under that Act. The estate was partitioned and the waqf properties were made liable for the payment of Rs. 1,275 as the proportionate share of the cost of partition. The Government took statutory steps for realization of this sum, and as the mutawalli found it impossible to satisfy the demand from the current income of the properties, the Collector fixed the 10th May 1895 for the sale of the estate. Under these circumstances, the mutawatti effected a mortgage of his own properties and a portion of the waqf estate, raised a loan of Rs. 1,000 and applied the sum to avert the impending sale. There is no room for dispute, therefore, that the mortgage was created under the gravest necessity of the most urgent character, and that but for the action taken by the mutawatti, the estate would have been unquestionably sold and the waqf destroyed. The Subordinate Judge has held that although these facts are not and cannot be disputed, the mortgage is, upon the authority of the decision of this Court in Shama Churn Roy v. Abdul Kabeer (1898) 3 C.W.N. 158, absolutely null and void, and that the mortgagee is not entitled to proceed in any manner against the waqf properties included in the mortgage for the satisfaction of his dues. This position has been controverted before us in appeal. The question raised is one of considerable importance, and to determine accurately the rights of the respective parties, it is necessary to examine the leading texts on the subject of alienations of waqf properties, to be found in the writings of Mahomedan jurists of recognised authority. We proceed to give an English version of these texts, of which the originals are appended to this judgment for facility of reference.
2. If a mutawalli wishes to mortgage or pledge the waqf property as security for loan, it is not valid, because such a course would render the waqf useless. Neither the mutawalli nor the people who frequent the mosque (that is the beneficiaries) can validly do so. If a mutawalli mortgages a house belonging to the waqf, and the mortgagee dwells in it, the jurists are of opinion that the latter is bound to pay customary rent (literally rent of a similar property) whether the house be in a condition to yield an income or not. This should be done as a measure to safeguard the waqf. (Fatawa Qadi Khan, A.D. 1196, Calcutta Edition 1835, Volume 4, page 218.)
3. If the waqf property has no money (literally income, profits, etc.) in the hands of the mutawalli the matter should be referred to the Cadi, so that the Cadi may order the mutawalli to borrow on (the security of) the waqf for the benefit of the waqf. The mutawalli may not borrow without the sanction of the Cadi. The circumstances which justify the borrowing arise when there is no income from the waqf property, thereby necessitating borrowing and contracting a loan. (Fatawa Qadi Khan, Volume 4, page' 221.)
4. The saying of the Prophet addressed to Umar when he wanted to appropriate a piece of land belonging to him and called Thamgh 'dedicate its corpus (asl), it shall not be sold nor inherited nor given away as a gift.' (Hidayah by Burhan--al-din, A.D. 1197, Calcutta Edition, Volume II, page 888.)
5. When a valid waqf is made, its sale and transfer are not permitted. (Hidayah, Volume II, page 897.)
6. It is reported from Imam Muhammad that it (waqf property) cannot be sold, inherited, not given away as a gift. (Hidayah, Volume II, page 907.)
7. If the mutawalli is called upon to pay the land tax (khiraj) and tribute (jibayah) due from the waqf property, and he has not in his hands anything out of the income of the waqf, the jurisconsult Abu-l-Qasim says that it is lawful for him to borrow if the appropriate has authorised him to do so; otherwise he shall have to pay (that is, the debt incurred without the authority of the appropriator) out of his own property and not out of the income of the waqf. The jurisconsult Abu-l-Layth says that, when the mutawalli is confronted with an affair which makes it indispensable for him to borrow, he should do so with the sanction of the hakim, and then pay off the debt out of the income of the waqf, because the Cadi has the power of authorising the mutawalli to borrow on (the security of) the waqf. (Is'af by al-Tarabulusi, A.D. 1576, Cairo Edition,
8. When the mutawalli wishes to borrow on the security of the waqf, in order to pay off the mortgage money (literally price of mortgage), he is empowered to do so with the sanction of the Cadi; otherwise not. Thus it is laid down in the Sirajiyyah. The circumstances which justify borrowing arise when there is no income of the waqf and thereby necessitates borrowing and contracting loan. But if there be any income of the waqf, and the mutawalli applies his own money for the benefit of the waqf, he may recover the amount from the income of the waqf. Thus it is laid down in the Fatawa Qadi Khan. (Fatawa 'Alamgiri, Calcutta Edition, Volume II, page 519.)
9. It is not permitted to borrow on (the security of) waqf property, except when recourse to it becomes necessary for the benefit of the waqf, for example, for the purpose of repairs and purchase of seed grains. In such a case it is permitted, subject to the following two conditions: (1) the permission of the Cadi; but if the Cadi happens to be at a distance, he may borrow on his own authority; (2) when it was not possible to lease the property (literally corpus) and to spend the rents, etc., arising therefrom. (Durr al-Mukhtar by al-Hiskafi, A.D. 1677. Constantinople Edition, Volume III, page 649.)
10. When it is indispensable to borrow, it is permitted with the sanction of the Cadi, if he does not happen to be at a distance from him (that is, the mutawalli), because the Cadi has general powers with respect to what is beneficial for the Muslims. And it is said it is permitted unrestrictedly (that is borrowing is permitted even without the sanction of the Cadi) for the purpose of repairs, but the first view is relied upon by the school. (Radd-al Muhtar by Ibn 'Abidin, A.D. 1836, Constantinople Edition, Volume III, page 649.)
11. It is laid down in the commentary of al-Tanwir: the mutawalli cannot borrow on (the security of) the waqf for the purpose of repairs, except with the permission of the Cadi. If the above-mentioned mutawalli (that is, the mutawalli mentioned in the question to which the Fatawa is the answer) borrows with his (Cadi's) permission for the purpose of repairing waqf property, the beneficiaries cannot demand their dues till the debt is satisfied. (Fataws Mahdiyah by Sheikh al-Islam Muhammad al-'Abbasi, Grand Mufti of Egypt, A.D. 1883, Volume II, page 469.)
12. It is not permitted to borrow on (the security of) waqf,' except subject to the following three conditions: (1) for necessity, for example repairs; (2) permission of Cadi; (3) that it was not possible to lease the property and spend the income arising therefrom. (Fatawa Mahdiyah, Volume II, page 512.)
13. These texts indicate that property which has been validly dedicated as waqf cannot, unless the mutawalli is expressly empowered by the deed of endowment to do so, be ordinarily sold or mortgaged. If, however, necessity is established and the permission of the Cadi is obtained, such alienation is valid. Some of the texts, however, indicate that the mutawalli may borrow on his own authority if the Cadi happens to be at a distance; but the condition is imposed that the waqf property should' not be mortgaged if the same object can be attained by a lease. This would seem to show that the previous permission of the Cadi is not a condition precedent, and Sir Roland Wilson appears to favour this view when he suggests that the transaction may be retrospectively confirmed by the Court (Anglo-Mahomedan Law, 3rd Edition, Section 337). In cases in which the permission of the Cadi has to be obtained, the question may arise as to which officer under the British system of Administration of Justice is to be regarded as qualified to discharge his duties. The case of Shama Churn Roy v. Abdul Kabeer (1898) 3 C.W.N. 158 adopts the view that the Civil Court of superior jurisdiction in the district is vested, generally speaking, with the powers exercised by the Cadi under the Mahomedan regime. Again, in the case of In the matter of Woozatunnessa Bibee (1908) I.L.R. 36 Calc. 21, it was ruled that in Presidency Towns the High Court, in its original jurisdiction, can authorise under Mahomedan Law dealings with waqf property. It must be conceded, however, that the British system of Administration of Justice differs in so many essential respects from the Mahomedan system that any analogy between the position of a Cadi and that of a District Judge, or of a Judge of this Court exercising original jurisdiction, must be more or less farfetched; and we can see no reason why an approval by a Subordinate Judge of a transaction by which waqf property is mortgaged, provided he has jurisdiction over the waqf property, should not be quite as effectual as a sanction by a District Judge. The truth is that the analogy is more or less artificial, as the Cadi (who was ordinarily assisted by a Mufti) was entrusted with the exercise of discretion in this matter not merely because he was a judicial officer, but also because he was well qualified to form an opinion as to what would be beneficial to Muslems from an orthodox religious point of view. Apart from this aspect of matters, in the case before us there is no question as to the absolute necessity for the mortgage and of the undoubted benefit which has been conferred on the endowment by the transaction. There is no question also that within the meaning of the rule as laid down in Text VIII quoted from the Durr al-Mukhtar and Text IX from the Radd al-Muhtar, the Cadi was at a distance from the place where the properties were situated and the transaction took place. The Subordinate Judge has found that the mortgage was proper and may in substance be taken to have retrospectively approved by it. It is difficult to appreciate how, under these circumstances, the mortgage can be treated as void. The view that we take is substantially supported by modern text-writers: Thus, for instance, Baillie in his Digest of Mahomedan Law (Volume I, 1st Edition, 597; 2nd Edition, 608) describes the circumstances in which the Superintendent is allowed to borrow, and points out that for the payment of land tax or tribute, when there is no means to pay them out of the waqf, the mutawalli may borrow with the sanction of the Judge, the loan to be afterwards repaid out of the produce. Ameer Ali observes (Mahomedan Law, Volume!, page 374) that this rule should not be too literally understood, and that the prohibition against the creation of debts by the mutawalli could not have been intended to refer to such debts as, owing to the exigencies of society, must necessarily be contracted from day to day for the due discharge of the works of the trust. M. Clavel in his treatise on waqf or Habous deals with this subject at length. In Section 152 he observes as follows: 'From the fact that the immovable property cannot be alienated when the question is concerned with the waqf of the immovable property, it results that it is susceptible neither of hypothecation nor of attachment. This principle is beyond all discussion. It has been judged by the Courts of Alexandria that hypothecation agreed upon by the owner with respect to property which he has previously made waqf of is null; and also that waqf lands cannot be the object of an attachment or sale, or of any alienation whatever, and therefore are not susceptible of hypothecation. The Court of Algeria has in the same way proclaimed that immovable property made a Habous of ought to remain, exempt from all charges in the hands of the beneficiary. The creditors of the beneficiary have no sort of privilege in the immovable property, whatever be the origin of their debts. In Section 250 the learned author makes the following remarks: 'The Nazir (the mutawalli) not having the power of mortgaging either the property or the income of the waqf cannot contract loans. This principle is invariable. It may, however, happen that a loan is absolutely necessary, for example, to provide for urgent repairs and avoid deterioration or even the demolition of the immovable property. In this case the Cadi may authorise the Nazir to borrow the sum indispensably necessary; but all obligations contracted by the Administrator without a formal authorisation is radically null with regard to the waqf. As said in the El Bahr, borrowing is absolutely prohibited of things which can be dispensed with; for indispensable things it cannot be validly contracted except by the authorisation of the Cadi.' It is worthy of note that the modern text-writers--Baillie, Clavel and Ameer Ali--do not discuss the question when the matter is one of urgent necessity and the Cadi is at a distance, nor do they examine the effect of retrospective approval by the Cadi. The texts, however, to which we have referred, indicate plainly that the consent of the Cadi is essential whenever he is available, and if so, there is no reason why approval subsequent to the transaction should not be treated as effective in the same manner as approval prior to the transaction. It is but rational to hold that the approval of the Cadi was deemed requisite, primarily with a view to make sure that the loan was necessary, and in this view approval, antecedent or subsequent, ought to be equally effectual. Tested in the light of these principles, it is clear that in the case before us the mortgage ought to be treated as a valid charge upon the waqf properties.
14. The next question which requires consideration is, what direction should be given for the recovery of the debt. The texts quoted above indicate that, if practicable, the debt ought to be repaid out of the income of the waqf properties. The sixth text quoted from the Is af of al-Tarabulusi shows that the mutawaili who raises a loan on mortgage of the waqf properties should pay off the debt out of the income of the waqf. The eighth text quoted from Durr al-Mukhtar and the eleventh text from the Fatawa Mahdiyah point in the same direction when they lay down that a recourse to mortgage is permissible only when it is not possible to lease the corpus and spend the income thereof. To the same effect is the tenth text, which shows that when a valid mortgage has been effected for necessity and approved by the Cadi, the beneficiaries cannot demand their dues till the debt is satisfied.
15. That a mortgage debt should be paid out of the income and even from rent paid by the mutawaili who may take a lease for the purpose is manifest from the following passage translated from an authoritative work on the law of waqf (Adda and Ghaloungui-Droit Musulman, Le Wakf, Alexandria 1893, page 275):
Section 561.--The lease agreed upon by the Nazir in order to pay off the debt owed by a waqf is valid (one after the other).
Section 562.--Where the Nazir himself takes the lease, he can be exempted from the payment of the rents and can also set them off against the money owing to him.
Note I.--Waqf as well as its administration are found at a given moment to devolve upon a beneficiary.
16. 'This sole beneficiary who, as we have said already, was at the same time the Nazir, has let the waqf lands for a certain period and for customary rents to his creditor in order to compensate his credit.
17. 'Is the said compensation valid? Yes, by analogy with the principle admitted in El Bazzaziah in the Chapter of Will which is as follows: 'There is a compensation when the Wasi of the minor sells the goods of the latter to his creditor, the waqf and the will being of the same nature. There is all the more reason then for compensation in our case where the lessee is the sole beneficiary and consequently can compensate what he alone ought to draw' (also El Cazrouni).
18. 'El Khalashi in his Collection of Judgments says in answer to a question like the previous: 'If the Nazir is the beneficiary of all the rents, if the period should have expired and the debt be of the same nature as the rents, there is no doubt as to the validity of the compensation. But if the said beneficiary derives benefit only for one portion of the revenues, the compensation is as valid according to Abu Hanifa and Muhammad excepting with respect to the responsibility of the Nazir.
19. 'Abu Yusuf, after having declared his opinion in favour of the inadmissibility of the compensation, says that the authors who admit it may cite it, and he goes on to mention the said authors adding the following note that 'it is therefore clear that one may validly exempt the tenanting Nazir from the rents, and the validity of the compensation depends on the admissibility of the exemption just as has been said by El Ala-i.'
20. It is not necessary for us in the present case to consider whether, when a valid mortgage has been created of waqf property for necessary purposes and approved by a judicial officer whose functions are assumed to correspond to those of a Cadi, it is competent to a Court to direct the sale of the mortgaged properties for the satisfaction of the debt. It is sufficient for us to observe that judicial pronouncements of the highest authority are to be found in the reports in support of the view that not the corpus, but the income alone can be pledged under such circumstances. Sir Michael Westropp C.J. stated in Narayan v. Chintamon (1881) I.L.R. 5 Bom. 393 that religious endowments in this country, whether they be Hindoo or Mahomedan, are not alienable, though the annual revenues of such endowments, as distinguished from corpus, may, for purposes essential to the temple or other institution endowed, be occasionally pledged. The same view was affirmed in The Collector of Thana v. Hari Sitaram (1882) I.L.R. 6 Born. 546 and has been emphatically endorsed by Sir Subramaniah Ayyar C.J. in Nallayappa Pillian v. Am-balavana Pandara Sannadhi (1903) I.L.R. 27 Mad. 465 (472), where it was maintained that, according to the Indian Common Law relating to Hindu religious institutions the corpus was inalienable, and the revenues thereof might alone be pledged for the necessities of the institution. It is needless, however, for us in the present case to enter into an examination of this comprehensive proposition, as the mortgagees have declared that they will be quite satisfied if arrangement is made for payment of their dues from the income of that portion of the waqf properties which is covered by the mortgage. They have further agreed that this can be most satisfactorily arranged by the appointment of a Receiver. We need not consequently examine whether the decision of the Sudder Court in Moulvee Abdoolla v. Rajesri Dosea (1846) B.S.D. A 26 6 and 7 Mao. Select. Rep. 320 which was accepted as good law in Shama Churn Boy v. Abdul Kabeer (1898) 3 C.W.N. 158, may not require qualification. No doubt, as laid down by the Judicial Committee in Jewun Doss Sahoo v. Shah Kubeerooddeen (1840) 2 Moo. I.A. 390, 423, when property has been dedicated as waqf, sale or transfer of the thing appropriated is unlawful. But neither this case nor the other decision upon which reliance is usually placed in support of the inalienability of waqf property Shoojat Ali v. Zumeerooddeen (1866) 5 W.R. 158, Doyal Chund Mullick v. Syud Keramut Ali (1871) 16 W.R. 116, and Syud Asheerooddeen v. Sreemutty Drobomoyee (1876) 25 W.R. 557 lays down that a mortgage can under no circumstances, and for no purpose, be effected of waqf properties, or that a mortgage for necessary purposes and not approved by the Cadi because he is not available or approved by him subsequently, cannot be repaid out of the income of the property. On the other hand, there is a passage in the judgment of the Judicial Committee in Jewun Doss Sahoo v. Shah Kubeerooddeen (1840) 2 Moo. I.A. 390 423 which indicates plainly that although the alienation may be illegal, if the purchase-money has been applied to the use of the waqf, the party benefitted may perhaps be required to account for it.
21. The only question which remains for consideration is in respect of what sum the plaintiff can legitimately claim to be repaid out of the income of the waqf property comprised in the mortgage security.
22. As stated previously, the principal sum advanced under the mortgage was Rs. 1,120. The rate of interest was 12 per cent, per annum with quarterly rests. It is impossible to hold that a loan by a trustee of endowed property at such a high rate of interest is beneficial to the endowment, although the principal sum itself might have been urgently needed for the protection of the endowment. In a case like this, the Court is perfectly justified in allowing interest at a reduced rate, on the principle explained by their Lordships of the Judicial Committee in Gunga Pershad Sahu v. Maharani Bibi (1884) I.L.R. 11 Calc. 379; L.R. 12 I.A. 47 and Hurro Nath Rai Chowdhri v. Randhir Singh (1890) I.L.R. 18 Calc. 311; L.R. 18 I.A. 1 and applied by this Court in Abhiram Pal v. Mukunda Lal Dutt (1906) 5 C.L.J. 542. In our opinion the mortgagee, in so far as he seeks any relief against the waqf property, ought not to be allowed to throw upon it a burden greater than that of the principal sum and simple interest at 9 per cent, per annum; the mutawalli was no doubt under a necessity to borrow the principal sum, but there is no necessity to borrow at a high rate of compound interest. On this calculation the amount due under the mortgage, allowing credit for a payment of Rs. 500 made on the 3rd December 1905, would amount to Rs. 1,790 up to the date of the decree of this Court.
23. The plaintiffs would be entitled to be paid this portion of the decretal money from the funds that may come into the hands of the Receiver; this is in addition to the mode of relief indicated in the decree of the lower Court.
24. The result, therefore, is that this appeal must be allowed and the decree of the Court below varied by the addition of the following clause: 'Out of the sum payable under the decree, the plaintiffs are declared entitled to recover Rs. 1,790 from the income of the waqf property mentioned in Schedule item No. 2, which for this purpose will be placed by consent of parties in the hands of a Receiver to be appointed by the Subordinate Judge. The Receiver will act under the directions of the Subordinate Judge, who will determine what portion of the income of the property placed in his charge should, with due regard to the legitimate needs of the waqf, be periodically applied towards the payment of the sum of Rs. 1,790.'
25. The case will be remanded to the Subordinate Judge, to enable him to carry out the orders of this Court. We make no order as to the costs of this appeal.