1. This appeal is directed against the decision of Mr. Basanta Kumar Roy, Subordinate Judge, first Court, 24-Par-ganas, dated 3lst May 1934. The plaintiff firm, Swarup Chand Hukum Chand, had instituted a suit for the recovery of khas possession of the plaint land and for the recovery of mesne profits in respect thereof on the basis of their purchase of the suit land at a sale held at the instance of the Official Assignee on 22nd January 1931. The property in suit comprises premises Nos. 2, 2/1, 2/2 and 8 Rowland Road, Ballygunge, and this property had been mortgaged to the plaintiffs by Mahananda Nandy on 28th January 1927 as security for the sum of Rs. 1,30,000. Mahananda Nandy subsequently became insolvent and his property vested in the Official Assignee on 14th June 1928. The property in suit has a long and somewhat complicated history. Therefore, it is necessary for the purpose of this appeal to set forth the salient facts. Admittedly, the suit land originally belonged to a man named Juman Mistry. The relationship of the members of Juman Mistry's family to each other is shown in the following genealogical table:
ETBARI MALI, deceased
Juman Mistry Sham Mistry
d. 1884 deceased
M. Sundan Bibi |
(2nd wife) Nandu Jamadar
| | |
Umer Ali Aberjan Bibi Karim Bux
Sarkar d. 1934 |
d. Sept. 1911 M. Rakhibuddin |
| | |
Ayesha Bibi Samiruddin Aminuddin
deceased (died _______________|______________________
before her father) | | |
| Muhammad Yusuf Muhammad Yakub Muhammad Yunus
d. 17th May 1928.
2. Juman Mistry dedicated a portion of his property to religious purposes by a wakfnama on 28th January 1876. By this deed Juman Mistry appointed himself and his second wife, Sundan Bibi, to be the mutwallis of the wakf estate. The deed purported to be irrevocable, and in it the wakif stated that his son, Umer Ali, was not fit to be a mut-walli of the properties comprised therein. Juman Mistry made due provision in the deed for the appointment of future mutwallis. Some time after the execution of the wakfnama, dated 28th January 1876, Sundan Bibi died and, on 2lst June 1880, Juman Mistry executed a second wakfnama. By this deed he appointed himself as the sole mut-walli of the wakf properties during his life-time, and provided that after his death he should be succeeded in that capacity by his son, Umer Ali. He also appointed his son- in-law, Rakibuddin, for the purpose of assisting Umer Ali in the management of the wakf. Juman Mistry died in 1884 and was succeeded as mutwalli by Umer Ali. Admittedly, Rakibuddin never acted as mutwalli in respect of the wakf estate.
3. Juman Mistry left certain secular properties which were partitioned in 1888 between his daughter, Aberjan Bibi, and his son, Umer Ali, under a deed of partition, dated 5th April 1888. The property in suit fell to the share of Umer Ali by virtue of this deed of partition, and admittedly remained secular property until 1908 in which year, on 11th November, Umer Ali executed another wakfnama whereby he purported to add to the wakf estate which had been created by his father certain properties of his own including the property in suit. He provided that he himself should be mutwalli of the wakf estate during his lifetime, and that after his death his sister, Aberjan Bibi, and a relation named Samiruddin, should succeed him as mutwallis. The deed contained a further provision to the effect that 'on the death of either of the said two mutwallis my daughter's son Abdul Alim Abed, will be appointed in his or her place.' Umer Ali died in September 1911, and in December of that year the names of Samiruddin and Aberjan Bibi were mutated in the municipal assessment register as mutwallis of the wakf estate on the application of Samiruddin,
4. In 1912, Aberjan Bibi instituted Title Suit No. 36 of 1912, which initiated a long course of litigation regarding the wakf estate, which has not yet terminated. In that suit she asked for a declaration that the wakfnamas executed by Juman Mistry and his son, Umar Ali, were invalid, and she also asked for a partition with Karim Bux of the properties covered by those documents. The principal defendants were Samiruddin, Karim Bux (the father of Samiruddin), Amiruddin (Samiruddin's brother), Abdul Alim Abed and certain minor sons of Samiruddin. Shortly after she had filed her plaint, Aber-jan Bibi withdrew her prayer for partition. The judgment of the learned Subordinate Judge who decided suit No. 36 of 1912 is dated 6th September 1912. He held therein that the wakfnamas were invalid, the dedication for religious purposes was a mere pretence and the real motive was the protection of the properties from alienation. He decided, however, that the sum of Rs. 212 per annum for certain expenses in connection with the mosque should be charged on the entire property. On 5th October 1912, an application for review of the above mentioned judgment was made and the decree of the Court was modified by consent. This decree gave effect to the application for review, and it was decreed that the property in suit should be partitioned between Aberjan Bibi and Karim Bux and that certain specific properties should be set apart for the purpose of providing the expenses connected with the mosque and the burial ground. The effect of the decree was to declare all the remaining properties to be secular, and by its terms the property now in suit fell to the share of Aberjan Bibi as secular property. Aberjan Bibi put this decree into execution in 1913, and her receipt for delivery of possession is dated 2nd March 1913. She obtained the mutation of her name in the collectorate records on 12th June 1913. Thereafter, on 22nd June 1918, Aberjan Bibi executed a hebabilewaj in favour of Bad-ruddin, her husband's great-nephew, in respect of certain properties which included the property now in suit. The deed recited that Aberjan regarded Badaruddin with great affection and that the consideration for the deed was a tasry and a gold ring. Badaruddin obtained mutation of his name in the collectorate records on 18th February 1914.
5. The next important stage in the history of the litigation regarding the wakf estate of Juman Mistry and Umar Ali was reached in 1915, when Suit No. 190 of 1915 was instituted by Samiruddin, his minor sons and certain members of the Muslim public against Aberjan Bibi and the other parties to Suit No. 36 of 1912. Badaruddin and a lady named Neha Bibi were impleaded as transferees of the alleged wakf property and Abdul Alim Abed was impleaded as a pro forma defendant who was interested in supporting the wakf. The principal prayers were that the decree in Suit No. 36 of 1912 should be set aside as fraudulent and collusive, that declarations should be granted to the effect that the wakfnamas executed respectively by Juman Mistri and by Umer Ali in 1880 and 1908 were valid, that the property in suit was covered by those wakfnamas and that Samiruddin and Aberjan were the mutwallis of the said properties. Samiruddin also asked for joint possession of these properties with Aberjan Bibi. The learned Subordinate Judge delivered a lengthy judgment in the suit on 27th November 1916 in which the principal findings were to the following effect: (1) In so far as the plaintiffs sought a remedy for the maladministration of an alleged trust, the Court held that the suit was barred, having regard to the provisions of Section 92, Civil P.C; (2) the wakfnamas executed by Juman Mistry and Umer Ali were held to be invalid; (3) it was held that Samiruddin was not insane during the pendency of Suit No. 36 of 1912, and that he was bound by the decree in that suit. On the above findings Suit No. 190 of 1915 was dismissed. Samiruddin filed an appeal to this Court against the decision in Suit No. 190 of 1915 (F.A. No. 9 of 1917). It appears however that on 6th August 1917 he applied for permission to withdraw the appeal on the ground that he had been advised that the chances of his success were very small,
as the disputed properties were not validly constituted wakf properties and that the decree in suit No. 36 of 1912 is a proper and valid decree binding upon the parties thereto.
6. This petition was allowed on the same date. It therefore appears that the position at the end of 1917 was that Aberjan Bibi had been successful in maintaining her contention that the properties which had been allotted to her on partition with Karim Bux were secular properties, and on the basis of her secular title to the property now in suit she had transferred this property to Badaruddin on 22nd June 1913. After 1917, Samiruddin appears to have taken no further steps for the purpose of asserting the wakf character of the property included in the wakfnamas executed by Juman Mistry and Umer Ali. Between 1918 and 1921 there are indications to the effect that Abdul Alim Abed, the grandson of Umer Ali, whose name had been mentioned in para. 5 in Umer Ali's wakf-nama as a prospective mutwalli of the estate, was preparing to take steps in order to re-assert the validity of the alleged wakf. On 26th March 1918 and 7th July 1919 notices appeared on behalf of Abdul Alim Abed in the Calcutta Exchange Gazette, whereby the public were warned against having any dealing with Aberjan, Bibi, Badaruddin or certain other persons with regard to the alleged wakf property. On 11th October 1919, Badaruddin filed a complaint against Abdul Alim Abed and some other persons to the effect that they had forcibly trespassed upon the premises at Nos. 2 and 8, Rowland Road. Further, on 11th September 1919, some kabuliats were executed in favour of Abdul Alim Abed in respect of certain items of property on the basis that the demised land was included within the wakf estate. Similar kabuliats were also executed in Abdul Alim Abed's favour by other persons on some subsequent dates.
7. In the meantime, on 22nd September 1919, an agreement was executed between Badaruddin and Anadi Kumar Nandy for the sale of the Rowland Road property at the rate of Rs. 1200 per cottah and earnest money was paid by the purchaser amounting to Rs. 5001. Admittedly, Anadi Kumar Nandy was the benamidar of the real purchaser, Mahananda Nandy, who was a partner in the firm of Messrs. Nalinaksha Ta and Co. On the basis of this agreement, a conveyance was executed by Badaruddin on 9th December 1912 the consideration for the sale being the sum of Rs. 1,36,975. Anadi Kumar Nandy executed a release in favour of Mahananda Nandy on 16th December 1919. On 28th May 1921 Abdul Alim Abed filed his Suit No. 150 of 1921, which was subsequently re-numbered as Title Suit No. 153 of 1922. The principal defendants were Aberjan Bibi, Samiruddin and the other parties to the Suit No. 36 of 1912, Badaruddin, Mahananda Nandy and various transferees from these persons. The plaintiff claimed that the decree in Suit No. 36 of 1912 had been obtained by fraud and collusion and that neither he nor any of the minor defendants had been made parties to the review petition and the petition of compromise which had been filed in that case, that the decree was consequently a nullity, and that the wakfnamas executed by Juman Mistry and by Umer Ali were operative and created valid wakfs in respect of the properties mentioned therein. It was stated in the plaint that Abdul Alim Abed did not attain majority until 30th May 1918. The principal prayers in the suit were, therefore, (1) that a declaration should be made that the wakfnamas of Juman Mistry and Umer Ali were valid and binding documents, and (2) that the decree in Title Suit No. 36 of 1912 should be declared a nullity as it was obtained by fraud and collusion.
8. The judgment of the trial Court in Suit No. 153 of 1922 was delivered on 27th June 1927. The principal findings in that judgment were as follows : (1) The decree in Suit No. 36 of 1912 had been fraudulently and collusively obtained and must be regarded as a nullity as against Abul Alim Abed ; (2) the decision in Suit No. 190 of 1915 with regard to the validity of the wakfnamas did not operate as res judicata as against Abdul Alim Abed ; (3) the wakfnamas executed by Juman Mistry and Umer Ali were valid and operative documents; (4) Umer Ali had authority to nominate Abdul Alim Abed as mutwalli after Aberjan Bibi and Samiruddin both in respect of his own wakf and also in respect of Juman Mistry's wakf; (5) the nomination of Abdul Alim Abed to act as a mutwalli after Aberjan Bibi and Samiruddin was good and valid and he was quite competent to institute suit No. 153 of 1922. On the above findings the plaintiff was held to be entitled to the declarations for which he had asked.
9. Two separate appeals against the decision of the trial Court in Suit No. 153 of 1922 were taken to the High Court. The first of these appeals was F.A. Shihan v. Abdul Alim Abed Reported in : AIR1930Cal787 and was filed on behalf of certain transferees from Aberjan Bibi, while the appellants in the other appeal (F. A. Shihan v. Abdul Alim Abed Reported in : AIR1930Cal787 were Aberjan Bibi and Badaruddin Ahmed, The judgment of the High Court was delivered on 12th June 1930, by Sir George Rankin C. J. His Lordship agreed with the learned Subordinate Judge in finding that the plaintiff was not properly represented in Suit No. 36 of 1912, which had been collusively instituted. In this connexion, his Lordship said:
As he was only one of the parties to the decree complained of, relief in the form of' a declaration that the decree is a nullity as against him is, I think, proper and sufficient.
10. As regards the declaration to the effect that the wakfnamas, dated 2lst June 1880 and 11th November 1908, were valid and operative, the learned Chief Justice held that such a declaration could not be granted as against the transferees, having regard to the provisions of Section 42, Specific Relief Act, and he therefore allowed F. A. Shihan v. Abdul Alim Abed Reported in : AIR1930Cal787 by deleting from the decree of the Subordinate Judge the declaration, which it contained, to the effect that the towliatnamas of 2lst June 1880 and 11th November 1908, were valid and operative, and created a valid wakf of the properties therein mentioned. Similarly, he refused to grant a declaration as regards the validity of the wakf in F. A. Shihan v. Abdul Alim Abed Reported in : AIR1930Cal787 , which had been filed by Aberjan Bibi and Shaik Badaruddin. As regards the other main findings contained in the judgment of the trial Court, the learned Chief Justice made certain observations in his judgment but he expressly stated that 'they are not intended as decisions operating as estoppel between the parties.' As regards the wakfnamas, his Lordship said:
I am of opinion that the deed of 1876 wasa valid one and that the deed of 1880 was in essence a mere affirmation of the previous deed and good as such. Both as to Juman's wakf and Umer Ali's wakf of 1908, I accept the conclusion of the Subordinate Judge as to their validity.
11. As regards the question whether the decision in the suit of 1915 operated as res judicata on the question of the validity of the wakfs, the learned Chief Justice was of opinion that 'the plaintiff was not bound by it as being a decision between co-defendants.' His Lordship also expressed the view that Samiruddin was not litigating bona fide in the interest of the trust, and he was not prepared to hold that the decree of 1915 estopped the plaintiff from bringing the present suit with reference to the wakfnamas. He was also of opinion that 'Umer Ali had no power under the Mahomedan law or under his father's deed to appoint any one as a remote mutwalli,' and that in these circumstances the appointment by Umer Ali of Abdul Alim Abed as mutwalli in succession to Aberjan or Samiruddin was altogether bad., In the meantime, Abdul Alim Abed had applied to the learned District Judge of the 24-Parganas in Miscellaneous Judicial Case No. 132 of 1927, to be appointed as mutwalli of the estate, but, by his judgment dated 6th November 1927, the learned District Judge held that the application was not maintainable and that a suit under the provisions of Section 92, Civil P.C., provided a proper remedy in a matter of this nature. The application was therefore dismissed. In spite of the above mentioned decision by the learned District Judge of the 24-Parganas, Abdul Alim Abed executed a will on 15th May 1928, in which he stated that he was
the sole mutwalli according to the terms of the wakfnamas in respect of the properties made wakf by Shaik Juman Mistry deceased and his son, Umer Ali Sarkar, deceased of Chakraberia.
12. He stated that his brother-in-law, Md. Fateh Nasib, had done his best to protect the wakf, and he appointed him to succeed him as mutwalli after his death. Abdul Alim Abed died on 17th May 1928. In the meantime, the firm of Nalinaksha Ta & Co., had borrowed the sum of Rs. 1,30,000 from Swarup Chand Hukum Chand on 28th January 1927 and had deposited with the latter the title deeds in respect of the Rowland Road property as collateral security for the loan, apparently with the intention of creating a first charge therein for the sum which had been advanced to them. The firm was adjudicated insolvent on 14th June 1928 and on 12th February 1941, the Rowland Road property was sold at a High Court sale and was purchased by the firm of Swarup Chand Hukum Chand, the plaintiffs in the suit, out of which this appeal arises. A conveyance was executed in favour of the plaintiffs by the Official Assignee on 26th March 1931.
13. Admittedly, Fateh Nasib had succeeded in obtaining possession of the Rowland Road property after Abdul Alim Abed's death in 1928 and had leased a portion of this property to the International Tyres and Motors Ltd., on 30th July 1929 with the result that the plaintiff firm were unable to obtain possession of the disputed property. They, therefore, instituted the suit out of which this appeal arises on 18th July 1931. Besides taking possession of the Rowland Road property, Fateh Nasib appears to have done his best to obtain possession of other portions of the property covered by the wakfnamas executed by Juman Mistry and Umer Ali, which remained in the possession of Aberjan Bibi and her transferees. For Instance, in a suit which came before the learned Additional Judge of the 24-Parganas in connexion with Title Suit No. 84 of 1931 he sought to recover possession of premises No. 6/3, Ballygunge Circular Road and to obtain an injunction restraining Aberjan Bibi from interfering with his possession of the property (EX. 76). The learned Judge found that it had not been established that Abdul Alim Abed had ever been in possession of any portion of the wakf properties, and that he could not confer any right upon Fateh Nasib as mutwalli in respect of these properties by executing a will in that behalf before his death. The suit was, therefore, dismissed.:
14. In the meantime, by reason of the judgment of the learned District Judge of the 24-Parganas dated 6th November 1927 and that of Sir George Eankin C. J. in Appeals from original Decrees Nos. 187 and 196 of 1927 F. A. Shihan v. Abdul Alim Abed. Reported in : AIR1930Cal787 which was delivered on 12th June 1930, it became clear to those persons interested in re-asserting the wakf character of the property covered by the wakfnamas of Juman Mistry and Umer Ali that the proper course open to them was to take proceedings under Section 92, Civil P.C. This they did in October 1930 by instituting Suit No. 36 of 1930. In that suit they seem to have asked for Aberjan's removal from the mutwalliship and for certain directions with regard to the administration of the trust. The judgment of the learned Additional Judge of the 24-Parganas was delivered on 25thAugust 1933. He held that the three towliathamas constituted a valid wakf, and directed that Aberjan Bibi should be removed from her office of mutwalli of the wakf in suit and should render accounts for the period she had held such office. We are told that Aberjan died in 1934. Steps were not taken to appoint a mutwalli for some years, but on 30th April 1940, Fateh Nasib was admittedly appointed as mutwalli of the wakf estate by the learned Additional Judge of the 24-Parganas, and we are informed that an appeal is now pending in this Court against this order of the learned Judge.
15. In their plaint in the suit out of which this appeal arises, the plaintiffs seek to base their case on the adverse possession of the disputed property by their predecessors-in-ihterest beginning from 2nd March 1913 when Aberjan Bibi put into execution the decree which she obtained in Suit No. 36 of 1912. The plaintiffs then refer to the heba-bilewaj executed by Aberjan Bibi in favour of Badaruddin on 22nd June 1913, Badarud-din's exclusive and undisputed possession of the property, in suit, his transfer thereof to Mahananda Nandy in the benami of Abadi Kumar Nandy on 9th December 1919, Maha-nanda's continued possession of the property and the subsequent mortgage in favour of the plaintiff firm on 28th July 1927. The plaintiffs then refer to the insolvency of the firm of Nalinaksha Ta & Co. in which Mahananda Nandy was a partner, to the proceedings taken by the Official Assignee and to the sale of the property in suit by the Official Assignee, which took place on 22nd January 1931. The plaintiffs contended that by reason of their purchase they had become entitled to the property in suit and to possession thereof, but they pointed out in para. 15 of the plaint that while trying to obtain possession they had found defendant 2, the International Tyres and Motors Ltd., in possession of a portion of the premises, namely, Nos. 2, 2/1 and 3 Rowland Road, under an alleged lease from Fateh Nasib. The plaintiffs were, therefore, only able to obtain possession of that portion of the Rowland Road property covered by premises No. 2/2 Rowland Road, which was in occupation of a tenant named Mahammad Sadek. In para. 16 of the plaint the plaintiffs admitted that Fateh Nasib had surreptitiously taken unlawful possession of the land in suit some time in the year 1928. The plaintiffs then asserted that Fateh Nasib claimed the disputed property as wakf property in his capacity as mutwalli appointed by Abdul Alim Abed under an alleged will, but they asserted, after referring to various judicial proceedings, that the property in suit was not wakf property and that Fateh Nasib could not claim to be in possession thereof as mutwalli. They therefore asked for a declaration of their title to the property in suit and for khas possession.
16. The case of Fateh Nasib as outlined in his written statement is that the property in suit was wakf property by virtue of the wakfnama executed by Umer Ali on 11th November 1908, that the decree which Aber-jan Bibi had obtained in Title Suit No. 36 of 1912 was fraudulent and collusive, and that she was incompetent to pass any title to Badaruddin under the hebabilewaj, dated 22nd June 1913. Similarly, he contended that the subsequent transfer by Mahananda Nandy was invalid, and that, in any case, neither Badaruddin nor Mahananda Nandy had ever been in possession of the property in suit. On the other hand, he contended that Abdul Alim Abed had been in continuous possession of the wakf estate as mutwalli until his death on 17th May 1928, when he was succeeded as mutwalli by Fateh Nasib. In para. 80 of his written statement Fateh Nasib said that he
has an indefeasible right to the property in suit as mutwalli of the said wakf estates. That Syed Abdul Alim Abed, who was the last sole mutwalli of the said wakf estates, had every right to nominate his successor on his death-bed by the will executed by him on 15th May 1928.
17. This defendant also contended that the decision in appeals from F. A. Shihan v. Abdul Alim Abed Reported in : AIR1930Cal787 operated as res judicata against the plaintiffs with regard to the wakf character of the property, and that no title could devolve upon the plaintiffs by reason of the sale by the Official Assignee in the insolvency proceedings taken in this Court. Defendant 2, the International Tyres and Motors Ltd., generally supported Fateh Nasib in their written statement. The judgment of the trial Court was delivered on 31st May 1934 and the main findings therein are as follows: (1) The hebabilewaj executed by Aberjan Bibi in favour of Badaruddin on 22nd June 1913 was not a fraudulent and collusive transaction: (2) The purchase by Mahananda Nandy from Badaruddin was a bona fide transaction and for consideration: (3) The promissory note executed in favour of the plaintiffs by Mahananda Nandy and Nalinaksha Ta & Co. was for consideration and created a valid charge on the properties in suit: (4) The will executed by Abdul Alim Abed in favour of Fateh Nasib on 15th May 1928 was a genuine document, but the learned Subordinate Judge found at the same time that ' Abdul Ali Abed was never the mutwalli of the estate of Umer Ali Sarkar and that he had no authority to appoint defendant 1 as mutwalli of the estate after his death on the basis of any will': (5) The wakfs created by Juman Mistry and Umer Ali were valid wakfs, although the learned Subordinate Judge held that the appointment of Abdul Alim Abed by Umer Ali as mutwalli was inoperative: (6) On the question of res judicata the learned Subordinate Judge stated 'it is difficult to hold that the decisions in Title suits Nos. 86 of 1912 and 190 of 1915 of the First Court of Sub-Judge, 24-Pargannas are conclusive as to the secular character of the property': (7) On the question of title, the finding was to the effect that the plaintiffs had a much better title to the property in suit than Fateh Nasib who claimed to be a trespasser, and that they had acquired a good title to this property as bona fide purchasers for value; (8) with regard to the question of limitation, the learned Subordinate Judge held that the suit was not barred, as the 'plaintiffs' predecessors-in-inte-rest, Badaruddin and Mahananda Nandy, were in possession of the suit lands upto June 1928 when Mahananda became insolvent' : (9) He also held that it had not been established that Abdul Alim Abed was ever in possession of the disputed property as mut-walli or that he had acquired any title thereto by holding the office of mutwalli for six years; (10) the issue with regard to adverse possession was decided against the plaintiffs on the ground that there was no satisfactory and reliable evidence to prove that Mahananda Nandy was in exclusive possession of the entire land. On the above findings, the trial Court decreed the plaintiffs' suit, declared their title and directed that they should recover khas possession of the land in suit on ejectment of the defendants therefrom. Having regard to the above-mentioned findings, Dr. Sen Gupta on behalf of the appellant contends that the plaintiffs' suit should have been dismissed. He argues that, after it had been found that the wakfs were valid and that the plaintiffs and their predecessors had not been able to establish their title by adverse possession, it would follow logically that Aberjan Bibi could have transferred no title to Badaruddin by virtue of the hebabilewaj which was executed on 22nd June 1918 and consequently the subsequent transfers failed to pass title. He points out that in their plaint the plaintiffs did not claim that they were bona fide purchasers for value and that they based their case mainly on adverse possession of the disputed property. Dr. Sen Gupta rightly argues that, even if the plaintiffs be regarded as bona fide purchasers for value, this finding alone would not be sufficient to entitle them to a decree in a suit of this nature. Admittedly, they are out of possession, and it would therefore follow that they would only be entitled to succeed on the strength of their own title. It appears however that in effect the learned Subordinate Judge has decreed the suit merely by reason of the fact that, in his opinion, the defendants have not been able to establish a better title to the property than that of the plaintiffs.
18. Dr. Sen Gupta faintly urged that the hebabilewaj, dated 22nd June 1913, had not been properly proved and also that it had not been established by evidence that consideration had passed in respect of the transfer of the property in suit from Badaruddin to Mahananda Nandy. With regard to these points however we may say at once that we are not in agreement with Dr. Sen Gupta's contentions. We Have examined the evidence carefully, and we find with reference to the hebabilewaj that there were materials before the learned Subordinate Judge sufficient to satisfy him that the original could not be produced within a reasonable time. He was therefore justified in admitting secondary evidence of this document in view of the provisions of Section 65, Evidence Act. There is also satisfactory evidence on the record to show that this document was properly executed. Further, as regards the transfer to Mahananda Nandy, we are of opinion that the evidence before the trial Court was sufficient to show that consideration passed in respect of this transaction. We are in agreement with the learned advocate for the appellant in thinking that, on the facts found by the trial Court, the suit should have been dismissed. In fact, Mr. Gupta, on behalf of the respondents, frankly admits that be is unable to support the judgment of the learned Subordinate Judge on the findings contained therein. He maintains however that his clients are entitled to succeed on certain points which have been decided against them by the trial Court.
19. Mr. Gupta's main contentions are as follows : (1) The evidence shows that the wakfs created by Juman Mistry and Umer Ali were invalid and that the property covered by the wakfnamas was secular property and, consequently, the hebabilewaj, dated 22nd June 1913, and the subsequent transfers operated as valid conveyances ; (2) in any event, the decision in Title suit No. 190 of 1915 to the effect that the wakfs were invalid must operate as res judicata between the parties to the suit out of which this appeal arises ; (3) on the evidence the plaintiffs have been able to establish their title by adverse possession.
20. As regards the validity of the wakfs, the foregoing summary with regard to the protracted litigation in reference to this matter shows that different views have been taken by the various Courts in which this question has been raised. If it were open to the parties to the present suit to reagitate this matter, we would not be prepared to dissent from the opinion expressed by Sir George Eankin C. J. in his judgment in Appeals from F.A. Shihan v. Abdul Alim Abed Reported in : AIR1930Cal787 where his Lordship observed:
I am of opinion that the deed of 1876 was a valid one and that the deed of 1880 was in essence a mere affirmation of the previous deed and good as such. Both as to Juman's wakf and Umer Ali's wakf of 1908 I accept the conclusion of the subordinate Judge as to their validity. They satisfy the test laid down in Balla Mal v. Ata Ullah Khan .
21. In the case cited by the learned Chief Justice the Judicial Committee of the Privy Council were dealing with a wakf which had been created before the enactment of the Mussalman Wakf Validating Act, 1913. Their Lordships pointed out that:
Under the Act a wakf is not rendered invalid because it appears that the main object of the settlor was to make a settlement of his property on his family rather than to devote it to what are ordinarily understood as charitable purposes, whereas, with regard to wakfs created before the passing of the Act, the test still is....was there a substantial dedication of the properties included in the wakf to charitable purposes? The test may sometimes be difficult of application, and in applying it, the Courts, especially since the passing of the Act, will not be disposed to construe the provisions of the deed too strictly; but still the question must remain whether the properties included in the wakf have been substantially dedicated to charity, or whether they have been put into wakf by the settlor with the real object of effecting some non-charitable purpose such as, for instance, that of making a family settlement of his property which would otherwise be invalid as opposed to the Mahomedan law of succession.
22. Retrospective effect was given to the Act of 1913 by the Mussalman Wakf Validating Act, 1930, with the result that a private wakf created by a Muslim for the maintenance and support wholly or partially of his family, children or descendants would now be regarded as valid,
provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character.
23. Mr. Gupta's argument is to the effect that, if the wakf created by the wakfnamas executed by Juman Mistry and Umer Ali is regarded as a public wakf it does not satisfy the test laid down by the Judicial Committee to the effect that the property dedicated by the wakif should be substantially dedicated to charitable purposes, and that, if it is regarded as a private wakf, it fails to comply with the provisions of the Mussalman Wakf Validating Act, 1913, to the effect that the ultimate benefit must be reserved for the poor or for some religious, pious or charitable purpose of a permanent character. It may be noted that in this appeal we are directly concerned only with the validity of the wakf created by Umer Ali on 11th November 1908, as, before this date, the property in suit was admittedly secular pro-perty which had fallen to the share of Umer Ali as a result of a partition effected between him and Aberjan Bibi on 5th April 1888. But in discussing the validity of Umer Ali's wakf it is necessary to refer to the wakfnamas executed by Juman Mistry in 1876 and 1880, because some of their provisions have been imported into the deed which Umer Ali executed on 11th November 1908.
24. From its nature, the wakf created by Juman Mistry on 28th January 1876 (EX. A) was a public wakf for the purpose of maintaining a, mosque and a burial ground and also for certain pious purposes which were detailed in the schedule annexed to the deed. The income of the property which was dedicated was stated to be Rs. 1360 per annum and Mr. Gupta's main criticism with reference to this wakfnama is that the allowances stipulated as payable to the mutwallis were excessive. In our view, there is no substance in Mr. Gupta's argument on this point. The two mutwallis appointed under this deed were merely to receive respectively the sums of Rs. 40 and Rs. 30 per mensem or Rs. 840 per annum. It is true that the deed provided that the original mutwallis should be Juman Mistry himself and his wife, but, even if strangers had been appointed to this office, it would have been necessary to make some suitable provision for their salaries. The only allowance of a purely secular character, which appears to have been contemplated under the deed, was one of Rs. 30 per mensem during the life of Umer Ali. Further, the deed contained a provision to the following effect:
God forbid, if my said wife or my said son dies, the moneys on account Of their said monthly allowances will merge in and revert to the wakf, and be applied in the pious acts mentioned in the schedule thereby increasing the amount of expenditure thereon. Properties will be purchased with the surplus of the wakf funds and the profits thereof spent in pious acts.
25. There can be no doubt, therefore, that the wakfnama executed on 28th January 1876, created a valid wakf. The execution of the second wakfnama by Juman Mistry on 2lst June 18S0 appears to have been necessitated by the death of his wife, Sundan Bibi. Apart from the provisions relating to the appointment of Umer Ali and Rakibuddin to succeed Juman Mistry as mutwallis, this deed was, as observed by Sir George Eankin, 'in essence a mere' affirmation of the previous deed.' The property mentioned therein was substantially dedicated to charity, and it also contained provisions to the effect that any surplus income should be used for the purchase of properties, of which the profits would be spent for religious and charitable purposes.
26. In the wakfnama executed by Umer Ali Sarkar on 11th November 1908 the wakif sets out in detail a list of the various properties which had been made wakf by his father, and includes therein two properties which he himself added to the endowment in favour of the mosque built by his father at 4 Ballygunge, Circular Road. In para. 3 he makes certain provisions for the future appointment of mutwallis and also for certain expenditure in connexion with pious and charitable purposes. It seems to have been his intention that the expenditure connected with such purposes which had been expressly prescribed in his father's wakfnamas should be continued, although certain additional items are mentioned, e. g., oil, candles and a carpet for the mosque, provision for the sacrifice of a cow at the time of the Bakrid, Rupees 500 per annum for charity, Rs. 500 per annum for distribution to the poor on the occasion of the Bakrid and Rs. 250 per annum for giving feasts to the poor. In para. 4 he makes provision for the payment of allowances to the members of his family and for sundry expenses of a secular nature. In para. 5 he states:
With any surplus that may remain after defraying all the above expenses of the wakf estate, other properties will be purchased and included in the wakf estate. The mutwallis shall not be entitled to make any objection thereto. On the death of either of the said two mutwallis my daughter's son Abdul Alim Abed, will be appointed mutwalli in his other place. He will look after the wakf estate in the same manner. Thereafter, on the death of any mutwalli any one amongst the said heirs who will be a fit person will be appointed to the office of mutwalli in his place, and will receive his monthly allowance every month as such mutwalli.
27. With regard to this deed, Mr. Gupta argued that Umer Ali in effect sought to create a new wakf by amalgamating certain properties of his own with those which had already been dedicated by his father. He also maintains that, if the wakfnama be regarded merely as a dedication in respect of his own properties, the benefit to charitable and religious purposes must be regarded as unsubstantial, having regard to the generous scale of allowances for members of Umer Ali's family, which are mentioned in para. 4 of the deed. We are not prepared to accept this argument. If the deed be read as a whole, it was clearly Umer Ali's intention to reaffirm the directions which his father had given with regard to expenditure from the properties which had been dedicated by him to religious and charitable purposes. The two items of property which were expressly dedicated by Umer Ali included the Rowland Road property now in suit, and some premises in old Ballygunge Road, which must have been of considerable value. There is no reason to suppose that the income of these two items of property alone was not sufficient for the purpose of defraying the additional items of expenditure in connexion with charity and religion which are mentioned in para. 3 of the deed and also for meeting the allowances to members of Umer Ali's family detailed in para. 4 of the deed. These allowances amounted approximately to Rs. 200 per mensem, but in this connexion it must be remembered that, by reason of the provisions in para. 5 the mutwalli for the time being, if he happened to be one of the members of the family, would receive his monthly allowance in his capacity as mutwalli. The nature of the wakf. created by Umer Ali was not unlike that of a similar deed which was considered by the Judicial Committee of the Privy Council in connexion with the case in Mutu Ramanadan Chettiar v. Vava Levvai Marakayar ('16) 3 AIR 1916 PC 86. In that case their Lordships pointed out that:
The trusts too are active trusts, troublesome to discharge, and the petty salary given to the trustees may accordingly well be held to have been given to them as remuneration for their trouble in this respect, and therefore as part of the expenditure on the charitable objects.
28. It was Umer Ali's intention that the persons mentioned in para. 4 should only receive allowances if any surplus was available after meeting the expenses of the mosque and the other expenses mentioned in para. 3. It seems to have been his intention that they should receive these allowances during their natural lives 'only and, this being the case, on their death, the wakf would benefit to the extent of any money saved by nonpayment of the allowances. The amount of money to be spent on charity was not fixed, and, as observed by the Judicial Committee in Mutu Ramanadan Chettiar v. Vava Levvai Marakayar (16) 3 AIR 1916 PC 86.
The income may fluctuate or decrease permanently, and the needs of the charity may expand....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 are 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 so 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.
29. The provision to the effect that with any surplus, properties should be purchased and included in the wakf estate seems to have been intended by the wakif to be read subject to the condition attached to the corresponding provision in the wakfnamas executed by his father, namely, that the income of such properties should be expended for the religious purposes in connexion with which the wakf was originally established. This clause will, therefore, seem to operate as an ultimate dedication to religious and charitable purposes. In discussing the question of the validity of Umer Ali's wakf, we are not concerned at this stage with the provisions made for the appointment of future mutwallis. As far as the dedication itself is concerned, the deed appears to comply with the essential provisions of Mahomedan law with regard to such matters. We are not, therefore, prepared to accept Mr. Gupta's contention that the wakf was invalid. This leads us to the consideration of the second point put forward by Mr. Gupta to the effect that, as far as the parties to the present suit are concerned, they are estopped from reagitating the question of the validity of the wakf by reason of the decision in Suit No. 190 of 1915. In order to appreciate the true nature of the decision in Suit No. 190 of 1915, it is desirable to set out in extenso the prayers made in the plaint in that suit. These prayers are as follows:
(1) That it may be declared that the wakfnamah of 8th Ashar 1287, executed by the late Juman Mistry, and the wakfnamah of 26th Kartick 1315 by the late Umer Ali Sarkar are legally valid wakf-namahs. (2) That it may be declared that the properties of Schedules Ka and Kha and the properties Nos. 2, 3 and 4 of Schedule 91 and the properties Nos. 1 and 9 of Schedule Gha and the property of Schedules. Una and Cha are under the said wakfnamahs the wakf properties of the mosque founded by Juman Mistry and described in Schedule Ka. (3) That it may be declared that plaintiff 1 and defendant 1 are the mutwallis of the said wakf properties. (4) That it may be declared that none of the defendants has any personal right in the said wakf properties. (5) That it may be declared that the decree in Suit No. 36 of 1912 is fraudulent and collusive and the same may be set aside. (6) That it may be declared that the said decree is not binding upon any one of the said plaintiffs. (7) That a decree may be given to plaintiff 1 for possession of the properties described in Schedules. (Ka) and (Kha) and those in Items 2, 3 and 4 of Schedule (Ga) and those in Items 1 and 9 of Schedule (Gha) and those in Schedules (Una) and (Cha) as mutwalli jointly with defendant 1. (8) That a receiver may be appointed in respect of the wakf properties during the pendency of this suit. (9) That the plaintiffs may be given a decree against the defendants for the costs of this suit. (10) That the plaintiffs may also be given a decree for any reliefs to which they may be entitled in justice and reason under the decision of the Court.
30. Twenty-one issues were framed by the Court, of which the most material for the consideration of the present question are Issues 2, 6, 7, 13, 14, 15 and 16 which are as follows:
Issue 2 : Has this suit been properly framed ?
Issue 6 : Has the Court jurisdiction to try this suit in view of the provisions of Section 92, Civil P.C. ?
Issue 7 : Is the suit maintainable without the sanction of the Advocate General of Bengal ?
Issue 13 : Was a valid wakf created by any of the towliatnamas referred to in the plaint ?
Issue 14 : Was the second towliatnama of Juman Mistry a valid document Could it operate in the face of the first towliatnama ?
Issue 15 : Were the various towliatnamas referred to in the plaint ever acted upon Were the properties in suit ever treated as wakf? Even if they were, could it confer validity on the deeds, if invalid Is defendant 1 estopped by conduct in questioning the validity of the wakf ?
Issue 16 : Is plaintiffs' suit a bona fide one Are defendants 2 and 3 acting in collusion with the plaintiffs ?
31. It has already been mentioned that this suit was instituted by Samiruddin, his minor sons and certain members of the Muslim public against Aberjan Bibi and the other parties to Suit No. 36 of 1912. Abdul Alim Abed was impleaded as a pro forma defendant, and the plaintiffs' reasons for taking this course are given in para. 22 of the plaint, which reads as follows:
The minor pro forma defendant 6 in this suit is, under the provisions of the wakfnamah of the said Umer Ali Sarkar, entitled to be a mutwalli of the wakf estate after the death of the said Aberjan Bibi. It is necessary to have this suit decided in his presence. Consequently, he is made a pro forma defendant. The said minor, Abdul Alim Abed, is at present under the care of defendant 1 in this suit. As the interest of the said Aberjan Bibi is adverse to the interest of the said minor, she is not a fit person to be appointed his guardian. For this reason his uncle, Moulvi Saiyad Abdul Hakim, is made guardian.
32. Reference has already been made to the main findings at which the learned Subordinate Judge arrived in the judgment in Suit No. 190 of 1915, and Mr. Gupta contends that the finding in the judgment to the effect that the wakfnamas were invalid operates as res judicata between the parties to the suit out of which the present appeal arises. On this point, Dr. Sen Gupta's main contention is that the finding in question must be treated as connected with that part of the plaintiffs' case, whereby they sought to recover possession of the properties in the wakf, and, as the learned Subordinate Judge held in connexion with issues 2, 6 and 7 that he had no jurisdiction to try this part of the case in view of the provisions of Section 92, Civil P.C., it follows that the question of the validity or invalidity of the wakfs was one with which he had no jurisdiction to deal, and that any finding at which he may have arrived on this point cannot possibly operate as res judicata in a subsequent suit. Obviously, no adjudication on a point with reference to which a Court has no jurisdiction can operate as res judicata : Vikrama Deo Maharajulu Garu v. Gunapuram Deenabhandhu ('05) 28 Mad 42, Upendra Nath Bose v. Lall , Halsbury, Vol. 13, para. 493, Edn. 2. It is, therefore, necessary to examine in some detail the precise implications of the findings contained in the judgment of the learned Subordinate Judge.
33. From the prayers attached to the plaint it will be seen that the main reliefs which the plaintiffs were seeking were (1) a declaration with regard to the validity of the wakfnamas executed by Juman Mistry and Umer Ali and with regard to the wakf character of the property covered by those deeds; (2) a declaration to the effect that the decree in Suit No. 36 of 1912 should be treated as fraudulent and collusive and not binding on the plaintiffs; and (3) that Samiruddin should be given a decree as mutwalli for joint possession of the property in suit with Aberjan Bibi. It is true that, in discussing the considerations which arose in connexion with issues 2, 6 and 7, the learned Subordinate Judge, in the first part of this section of his judgment, used certain expressions from which it might appear that he was assuming that all the prayers made by the plaintiffs, except those which related to the decree in Suit No. 36 of 1912, fell within the scope of Section 92, Civil P.C. The remarks contained in the concluding portion of this section however seem to indicate that the learned Subordinate Judge was referring in particular to that prayer in the plaint, in which Samiruddin asked for joint possession of the property in suit with Aberjan Bibi. Thus he says:
It is contended on the plaintiffs' side that the object of this suit does not come under any of the headings (a) to (h) mentioned in Sub-section (1) of Section 92. But I do not agree with the contention. For, this suit seeks to recover possession of trust property by the trustees. That prayer comes under the heading (c). Besides, one issue has been raised as to the competency of plaintiff 1 to act as a trustee. It is therefore clear that in this suit the direction of the Court is necessary for due administration of the alleged trust. Thus Section 92, Civil P.C. is applicable...it seems to me that, in a suit where remedy is sought for the maladministration of an alleged trust, Section 92, Civil P.C., applies and this Court has no jurisdiction.
34. The final conclusion of the learned Subordinate Judge on this point is as follows:
My findings on these issues therefore are that so far as the present suit is for the recovery of possession of property and the vesting of the same in the trustees, this suit is not maintainable by any of the plaintiffs.
35. It must be remembered that Suit No. 190 of 1915 was not framed as a suit under Section 92, Civil P.C. It was, of course, open to the learned Subordinate Judge, on the view of the law which he took rightly or wrongly, to have held that some of the reliefs claimed by the plaintiffs could only be obtained in a properly constituted suit under Section 92 of the Code. At the same time, having regard to the express terms of that section, it is difficult to hold that he intended that his finding should mean that he had no jurisdiction to grant declarations such as those which the plaintiffs sought, if they were able to establish their case. Such matters are clearly beyond the scope of Section 92 of the Code, and this seems to have been the view taken by the Judicial Committee of the Privy Council in Abdur Rahim v. Abu Mahomed Barkat Ali ('28) 15 AIR 1928 PC 16. In our view therefore the final finding at which the learned Subordinate Judge arrived on issues 2, 6 and 7 should not be taken to mean more than it expressly states and, in this view of the case, the only prayer with reference to which it should be taken that the learned Subordinate Judge held that he had no jurisdiction was prayer No. 7. In this connexion, it may be observed that no direct issue was framed by the learned Subordinate Judge on the question whether Samiruddin was entitled to joint possession of the property in suit with Aberjan Bibi, and in our view he clearly had jurisdiction to try the issues relating to the validity of the wakfs. It follows therefore that the argument which has been put forward by Dr. Sen Gupta with reference to this matter must fail.
36. There can be no doubt that the decision of the learned Subordinate Judge who decided suit No. 190 of 1915 to the effect that the wakfs were invalid was a decision with regard to one of the issues which supported his ultimate decree to the effect that the plaintiff's suit should be dismissed. Dr. Sen Gupta admits that, according to the view which has been accepted by this Court, where several issues have been framed, the decision on each issue which supports the ultimate decision in the case must be regarded as res judicata between the parties to the suit. The view which was taken on this point in Peary Mohun Mukherjee v. Ambica Charn Bandopadhya ('97) 24 Cal 900 was followed by this Court in Eambehari Sarkar v. Surendra Nath (14) 1 AIR 1914 Cal 352 and Mahammad Ismail v. Sharfutullah : AIR1930Cal810 . The same view was expressed by the Madras High Court in Venkataraju v. Ramanamma ('15) 2 AIR 1915 Mad 864. It is true that it seems to have been suggested by the learned Judges who decided the case in Gopal Jew Thakur v. Radha Binode Mondal : AIR1925Cal996 that, where a matter was only incidentally decided in a suit, such decision would not operate as res judicata, but it is significant that when this ease came before the Privy Council, Radha Binode Mondal v. Gopal Jiu Thakur their Lordships confirmed the decision of this Court on another ground and expressly stated that:
They desire to guard themselves by saying that they must not be taken as adopting the grounds upon which the decision of the High Court was based. They express no opinion on any ground other than that which has been hereinbefore dealt with.
37. The view which was taken by this Court in Gopal Jew Thakur v. Radha Binode Mondal : AIR1925Cal996 appears to have been similar to the view expressed by the Allahabad High Court with regard to findings which are incidental and subsidiary to the main question in the suit Shib Charan Lal v. Raghu Nath ('95) 17 All 174, but we consider that the opposite view which has been usually taken in this Court with regard to this matter is more consistent with reason and authority. On the other hand, there can be no doubt that, if a decision on an issue does not support the ultimate decree, such decision cannot operate as res judicata between the parties to the suit: Rajah Bun Bahadur Singh v. Mt. Lachoo Koer ('85) 11 Cal 301 at p. 34, Nundo Lal Bhuttacharjee v. Bidhoo Mookhy Debee ('86) 13 Cal 17, Thakur Magandeo v. Thakur Mahadeo Singh ('91) 18 Cal 647, Midnapore Zamindari Co. Ltd. v. Naresh Narayan Roy ('22) 9 AIR 1922 PC 241 and Dwijendra Narayan Roy v. Joges Chandra De : AIR1924Cal600 .
38. Dr. Sen Gupta however argues that, even if the finding with regard to the invalidity of the wakfs in the judgment in Suit No. 190 of 1915 be regarded as a finding which supports the ultimate decree in that suit and the view which has been generally accepted by this Court with regard to such findings is correct, this question should nevertheless be regarded as concluded by the view expressed by Sir George Rankin C.J. in his judgment in F.A. Shihan v. Abdul Alim Abed Reported in : AIR1930Cal787 . Reference has already been made to those observations and, in view of the fact that his Lordship expressly stated that they were not 'intended as decisions operating as estoppel between the parties,' they cannot obviously operate as res judicata, with reference to the present suit. Dr. Sen Gupta however contends that in any case they should be regarded as findings which must be displaced by Mr. Gupta's clients. In support of this contention he places some reliance upon certain observations of Lord Dunedin in Midnapore Zamindari Co. Ltd. v. Naresh Narayan Roy ('22) 9 AIR 1922 P C 241 at p. 55. Obviously, a heavy onus would lie upon the respondents to establish by evidence that the wakfs were invalid, and we have already held that they have not been able to succeed on this point. Similarly, the onus would lie on them to show that the decision in suit No. 190 of 1915 with regard to the invalidity of the wakfs operates as res judicata in the suit out of which the present appeal arises. At the same time, however, we cannot hold that the observations contained in Sir George Rankin's judgment were ever intended by his Lordship to be findings. On the other hand, they are obviously mere expressions of opinion. Even if they would be regarded as findings, they would nevertheless not operate as res judicata in favour of the appellant as they do not support the ultimate decision in F.A. Shihan v. Abdul Alim Abed Reported in : AIR1930Cal787 , which was to the effect that the declaration which the plaintiffs sought with regard to the validity of the wakfs was refused. Dr. Sen Gupta next argues that, having regard to the general principle relating to the doctrine of res judicata, the learned Chief Justice adopted a correct view when he stated:
I am not therefore prepared to hold that the decree of 1915 estopped the plaintiff from bringing the present suit (i.e., Suit No. 153 of 1922), with reference to the wakfnamas.
39. It must therefore be considered whether the question of the validity of the wakfs is now res judicata between the parties to the present suit with special reference to the provisions of Section 11, Civil P.C. If Mr. Gupta's clients are to get the benefit of Section 11, they must establish the following points: (1) That the question of the validity of the wakfs was directly and substantially in issue in Suit No. 190 of 1915; (2) that this matter was in issue in the former suit between the parties to the present suit or parties under whom the parties to the present suit claim; (3) that the parties in both suits were litigating under the same title; (4) that the Court which tried the former suit was a Court competent to try the suit out of which the present appeal arises, and (5) that the question relating to the validity of the wakfs was heard and finally decided in Suit No. 190 of 1915.
40. With regard to the first point, the issues which were framed in both the suits show clearly that the question of the validity of the wakf created by Umer Ali Sarkar was directly and substantially in issue in both suits. With reference to the second point, the suit out of which the present appeal arises is between the successors-in-interest of a. transferee from Aberjan Bibi of a portion of the property covered by the wakfnama executed by Umer Ali in 1908 and Fateh Nasib who claims to be a mutwalli of the wakf estate by virtue of his appointment under the will of Abdul Alim Abed, which was executed on 15th May 1928. The principal plaintiff in Suit No. 190 of 1915 was Samiruddin who claimed to be co-mutwalli of the wakf property with Aberjan Bibi under Umer Ali's wakfnama of 1908, whereas the principal defendants included Aberjan Bibi and Bada- ruddin Ahmed to whom Aberjan Bibi had transferred the property now in suit by the hebabilewaj dated 22nd June 1913. As already stated, Abdul Alim Abed was impleaded as a pro forma defendant, in whose presence it was necessary to decide the matter, as he had been nominated as a prospective mutwalli of the wakf estate in the wakfnama executed by Umer Ali in 1908. In the suit of 1915 Abdul Alim Abed filed a written state, ment in which he supported substantially the plaintiff's case, and it follows, therefore, that in that suit the question with regard to the validity of the wakfs was in issue not only between Samiruddin and Aberjan Bibi but also between Abdul Alim Abed and Aberjan Bibi whose interests with regard to this matter were conflicting. There is no doubt that the plaintiffs claim under Aberjan Bibi and Badaruddin Ahmed in the present suit and, as Fateh Nasib claims to represent the interests of the wakf by virtue of the will executed by Abdul Alim Abed on 15th May 1928, it follows that he claims under Abdul Alim Abed and derives his title from him.
41. A peculiar feature of the present case, however, is that the persons from whom the principal parties to the present suit derive their title were co-defendants in Suit No. 190 of 1915, and it must, therefore, be considered whether this circumstance precludes the plaintiffs in the present: suit from contend-ing that the decision with regard to the invalidity of the wakfs in Suit No. 190 of 1915 operates as res judicata. On this point the learned Subordinate Judge who tried Suit No. . 153 of 1922 held that it was not necessary in Suit No. 190 of 1915 to try the question of the validity of the wakfs as between the co-defendants after it had been decided that Samiruddin and his co-plaintiffs were not entitled to ask for the relief which they sought. He also held that, after the with-drawal of Samiruddin's appeal to the High Court, Abdul Alim Abed had no opportunity to test the finding of the first Court in Suit No. 190 of 1915 by filing an appeal himself. Reference has already been made to the opinion formed by Sir George Eankin C.J., on the question of res judicata in his judgment in F.A. Shihan v. Abdul Alim Abed Reported in : AIR1930Cal787 , wherein he expressed the view that the plaintiff (that is, Abdul Alim Abed), was not bound by the previous decision 'as being a decision between co-defendants.'
42. In discussing the question as to the necessity for a finding with regard to the validity of the wakfs the learned Subordinate Judge who tried Suit No. 153 of 1922, referred to a passage in the judgment of Mookerjee J., in Aghore Nath Mukherjee v. Srimati Kamini Debi ('10) 11 CLJ 461, wherein the principle was laid down that, where an adjudication between defendants who had a conflict of interest between them was necessary to give the appropriate relief to the plaintiff and there was such adjudication, the adjudication which defined the real rights of the defendants inter se would be res judicata as between the defendants as well as between the plaintiff and the defendants. There can be no doubt as to the general soundness of this principle and when Sir George Rankin C.J., in his judgment in F.A. Shihan v. Abdul Alim Abed Reported in : AIR1930Cal787 expressed the opinion that Abdul Alim Abed was not bound by the decision in Suit No. 190 of 1915 on the question of the validity of the wakf 'as being a decision between co-defendants,' he can hardly be taken to have meant that such decision cannot operate as res judicata in suitable cases. The principle enunciated by Mookerjee J., in Aghore Nath Mukherjee v. Srimati Kamini Debi ('10) 11 CLJ 461 was accepted and to some extent amplified in several judgments delivered by the Judicial Committee of the Privy Council after the date on which the learned Chief Justice delivered his judgment in F.A. Shihan v. Abdul Alim Abed Reported in : AIR1930Cal787 .
43. The first of these cases is that in Munni Bibi v. Tirloki Nath . A suit had been brought by Munni Bibi to recover possession of a house at Agra from Tirlok Nath. The house formerly belonged to a person named Joti Prasad who was said to have given it to his wife, Mukundi, in 1864. The plaintiff disputed the validity of the gift and claimed title through Joti Prasad's son, Amarnath, while the defendant claimed to have succeeded to Mukundi's interest in the property. In a suit brought in 1909 in respect of this property, in which Munni Bibi and a predecessor of Tirlok Nath had been impleaded as defendants, it was decided that the property belonged to Amarnath and that the plaintiff might therefore legally attach the house in execution. The Judicial Committee held that the decision of 1909 was res judicata in favour of the appellant as between her and her co-defendant. Their Lordships pointed out that Munni Bibi was 'at all events a proper party to the suit and had a right to be heard if she so desired.' They also observed:
It was only if the house belonged to Amar Nath that the plaintiff's suit could sueeeed; if it belonged to Mukandi he must fail. It was therefore necessary to decide between the conflicting claims of the defendants.
44. Their Lordships also held that the said decree was equally binding upon the respondents as reversionary heirs in the absence of proof that it was obtained by fraud or collusion. In discussing the doctrine of res judicata, Sir George Lowndes referred to Section 11, Civil P.C., and then pointed out that 'it has been held by this Board on many occasions that the statement of it there is not exhaustive.' After referring to the case in Cottingham v. Earl of Shrewsbury (1843) 3 Hare 627 at p. 638, his Lordship formulated three conditions as being requisite, in order to apply the rule of res judicata as between co-defendants in a previous suit and stated:
In such a case therefore three conditions are requisite : (1) There must be a conflict of interest between the defendants concerned ; (2) it must be necessary to deoide this conflict in order to give the plaintiff the relief he claims ; and (3) the question between the defendants must have been finally decided.
45. The same principle was followed by the Judicial Committee in 1932 in Maung Sein Done v. Ma Pan Nyun . In 1918 Ma Sein had instituted an administration suit against her brothers in which she claimed administration of her mother's estate on the ground that, according to Burmese Buddhist law, she was entitled to a fourth share therein. Although she claimed no relief against her sister Ma Pan, she impleaded her as a pro forma defendant. The sister, Ma Pan, filed no written statement but, at the hearing, gave evidence on behalf of the plaintiff in support of her claim. Ma Sein's suit was dismissed on the ground that Chinese Customary law applied and under it her brothers were entitled to succeed to their mother's estate. In a subsequent suit instituted by Ma Pan in 1927 she sued her brothers and Ma Sein and claimed the same relief as had been sought in the previous suit. Their Lordships of the Judicial Committee held that the subsequent suit was barred by the doctrine of res judicata. In discussing the previous suit, Lord Russell of Killowen pointed out that
to that suit all the alleged heirs were necessary and proper parties....The plaintiff's only title to sue depended upon the answer to the question whether all the four children were heirs of the mother or whether only the sons were entitled to succeed to her property, and this, in turn, depended upon the answer to the question whether the succession to the mother's property was governed by Chinese Customary law or by Burmese Buddhist law. In a word, the question to be determined was one between the sisters on the one hand and the brothers on the other. The rights of each sister in regard to the mother's estate were identical; they were either both of them co-heirs with their brothers or neither of them was entitled to any share....It was argued that the doctrine of res judicata could not apply as between co-defendants to a previous suit, if no relief had been granted to the plaintiff in that suit. Their Lordships are aware of no principle or authority which justifies this contention.
46. The principles laid down in the cases in Munni Bibi v. Tirloki Nath and Maung Sein Done v. Ma Pan Nyun were followed by the Judicial Committee in 1935 in Kedar Nath v. Ram Narain . In discussing the question whether the decision in a previous suit was binding and operated as res judicata in a subsequent suit, their Lordships stated that:
The Subordinate Judge held that the issue as to the validity of the sale was not res judicata between the plaintiff who was defendant 1 and the mahant who was defendant 2 in these suits, because the plaintiffs, who were the auction purchasers of other properties at the Court sale, had not sought for any relief as against the mahant who was defendant 2, but this ruling was given before the recent decisions of this Board as to res judicata between co-defendants which will be referred to later.
47. Their Lordships, therefore, by implication re-assert the view which seems to have been taken in Maung Sein Done v. Ma Pan Nyun that the fact is immaterial that the plaintiff in the former suit may not have sought for any relief against a person who is impleaded as a pro forma defendant. It may be noted at this stage that, in view of the foregoing observations of Sir John Wallis in Kedar Nath v. Ram Narain , we are not prepared to accept the argument which has been put forward by Dr. Sen Gupta to the effect that the decision in Suit No. 190 of 1915 with regard to the invalidity of the wakfs would not operate as res judicata in view of the fact that the plaintiffs had claimed no relief against Abdul Alim Abed. In support of his contention on this point, the learned advocate placed some reliance upon a decision of this Court in Brojo Behari Mitter v. Kedar Nath Mozumdar ('86) 12 Cal 580 (FB) and two later decisions of Mitter J. in Gajanan Agarwalla v. Hamidar Rahaman ('36) 40 CWN 1205 and Rakhal Das Ray v. Haridas Sarkar ('36) 64 CLJ 3. In so far as these cases purport to decide that a decision in a former suit, which affects the interests of a pro forma defendant against whom no relief had been claimed, cannot operate as res judicata in a subsequent suit between the same parties, we are not prepared to follow them. We think that the law contemplates that even a pro forma defendant should ordinarily be bound by a decree which has been obtained in his presence. As pointed out by the Judicial Committee of the Privy Council, if a pro forma defendant is a proper party to a suit, he has every right to be heard, and it would follow that, if he refrains from putting his case before the Court, he does so at his own risk and he cannot afterwards complain if his rights in connexion with the subject-matter of the suit are placed in jeopardy by reason of his neglect. The law allows any party to a suit who is adversely affected by a decree to appeal from it Krishna Chandra v. Mahesh Chandra ('05) 9 CWN 584, and if a pro forma defendant considers that his interests with reference to the subject-matter of the suit have been prejudiced, an appeal filed by him would be competent. We are not prepared, therefore, to adopt the view of the law which has been taken by Mitter J. in the above-cited cases nor to follow the decision of the Bombay High Court in Ramdas v. Vazirsaheb ('01) 25 Bom 589, upon which the learned Judge particularly relied. Further, we may point out that the view taken in this Court in regard to this question in Brojo Behari Mitter v. Kedar Nath Mozumdar ('86) 12 Cal 580 (FB), did not commend itself to the Madras High Court in Madhevi v. Kelu ('92) 15 Mad 264 and we think that the former Pull Bench decision must now be regarded as having been impliedly overruled by the Privy Council in the cases in Maung Sein Done v. Ma Pan Nyun and Kedar Nath v. Ram Narain .
48. From the principles laid down by the Privy Council, it follows that, provided the remaining conditions requisite in order to apply the doctrine of res judicata are present, the mere fact that the question in issue in the former suit was between co-defendants is immaterial if in such a case the conditions which have been prescribed by the Judicial Committee of the Privy Council have been fulfilled. In order to see, therefore, whether the doctrine of res judicata may be invoked in a subsequent suit by persons whose predecessors had been impleaded as co-defendants in a previous suit or who were themselves co-defendants in such previous suit, it is necessary to consider the following points : (1) What was the relief claimed by the plaintiff in the previous suit? (2) Were the co-defendants proper parties to the suit? (3) Was there a conflict of interest between them (4) Was it necessary to decide that conflict in order to give the plaintiff the relief that he claimed (5) Was the question in issue between the co-defendants actually decided. These points will now be examined with special reference to the suit in connexion with which the present appeal arises, (1) As regards the first of these points reference has already been made to the prayers contained in the plaint in Suit No. 190 of 1915. (2) There can be no doubt that Abdul Alim Abed was a proper party to Suit No. 190 of 1915 as he was vitally interested in maintaining the validity of Umar Ali's wakfnama. He had a right to be heard with reference to this matter if he so desired. Order 2, Rule 1, Civil P.C., states:
Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.
49. Abdul Alim Abed had been named rightly or wrongly by Umer Ali as a prospective mutwalli of the wakf, and one of the main points in dispute in Suit No. 190 of 1915 was the validity of Umer Ali's wakfnama. The object of Order 2, Rule 1 of the Code would have been frustrated if Samiruddin's contention on this point had failed and, at some later date, Abdul Alim Abed had been in a position to contend that it had been decided in his absence that the wakfnama was invalid and that he was not bound by the decree in the former suit. The law contemplated that, as the question of the validity of the wakf had been raised in the Suit No. 190 of 1915, this question should be decided in such a way as to bind all persons interested in upholding or denying the validity of the wakfnamas, for the purpose of preventing further litigation on this point. Hence Abdul Alim Abed was rightly impleaded as a defendant. (3) There was a clear conflict of interest between Abdul Alim Abed on the one hand and Aberjan Bibi and Badaruddin Ahmed on the other. The former was interested in upholding the validity of the wakfs, while the latter were contending that the property covered by the wakfnamas was secular. (4) As regards the question of the necessity for deciding the issue raised in regard to the validity of the wakfs, reference has already been made to the view expressed on this point by the learned Subordinate Judge who tried Suit No. 153 of 1922. Further, Sir George Rankin C. J. in the concluding portion of his judgment, dated 12th June 1930, seems to have held the same view. On this point, the nature of the relief claimed in Suit No. 190 of 1915 has already been discussed at some length, and we have held that the learned Subordinate Judge who tried Suit No. 190 of 1915 had jurisdiction to adjudicate upon the issues with regard to the validity of the wakfs. Even if it be assumed that the learned Subordinate Judge was correct in supposing that he was unable to grant the plaintiffs relief in respect of the possession of the disputed property, it was nevertheless clear that, in order to give them the declarations which they sought, it was necessary to decide whether the wakfs were valid or invalid. The position of Samiruddin and Abdul Alim Abed in suit No. 190 of 1915 was analogous to that of the two sisters in the suit of 1918 which was discussed in Maung Sein Done v. Ma Pan Nyun . Their interests in maintaining the validity of Umer Ali's wakfnama were identical. Either the property in suit was wakf or it was secular, and this was a point which it was essential to decide in order to give the plaintiffs the relief which they sought. (5) The question in issue with regard to the validity of the wakfs between Abdul Alim Abed on the one hand and Aberjan Bibi and Badaruddin Ahmed on the other was actually decided.
50. It follows, therefore, that, with regard to the essential conditions relating to the application of the doctrine of res judicata as between co-defendants, the principles formulated by the Judicial Committee have been fulfilled in respect of the decision in Suit No. 190 of 1915 between Abdul Alim Abed and Aberjan Bibi and her transferees and consequently the second main condition which is requisite in order to apply the doctrine of res judicata has also been fulfilled. With regard to this matter, Mr. Gupta rightly points that, even apart from any right which Fateh Nasib may claim to have derived from the terms of Abdul Alim's will, this person professes to come forward in the present suit in a representative capacity with a claim to the effect that the property in suit is wakf property. Mr. Gupta, therefore, argues that, in view of the terms of Expln. 6 to Section 11, Civil P.C., Pateh Nasib must be regarded as claiming under Abdul Alim Abed and, from this point of view also, as bound by the decision in Suit No. 190 of 1915, provided the other essential conditions with regard to the doctrine of res judicata have been fulfilled. With regard to this argument Dr. Sen Gupta contends (1) that Abdul Alim Abed was not litigating in a representative but in a personal capacity and (2) that it had been decided in suit No. 190 of 1915 that the suit was not of a bona fide character.
51. With regard to the first of these arguments, it seems to be clear from the pleadings in Suit No. 190 of 1915 and in those of the suit out of which this appeal arises that neither Abdul Alim Abed nor Fateh Nasib was litigating in his personal capacity. They both claimed to be persons interested in the wakf character of the property in suit, not on their own behalf but on behalf of their co-religionists for the benefit of whose religion the dedication had been made. The mere fact that Abdul Alim Abed was a prospective mutwalli and Fateh Nasib claimed to be a de facto mutwalli is immaterial. In effect both these persons were litigating in a representative capacity for the purpose of ensuring that the property which had been dedicated by Umer Ali to pious and charitable objects should be utilized for promoting the objects which the wakif had in view at the time of the dedication.
52. As regards his second argument, Dr. Sen Gupta places much reliance upon the finding on issues 16 and 17 contained in the judgment of the learned Subordinate Judge who tried suit No. 190 of 1915 to the effect that 'the plaintiff's suit is not a bona fide one and they are colluding with defendants 2 and 3.' Dr. Sen Gupta argues that the learned Subordinate Judge did not consider Samiruddin's suit to be bona fide litigation on behalf of the wakf because he had reason to suppose that the principal plaintiff was colluding with the defendants Karim Bux and Amiruddin. Such an interpretation of this finding was not accepted by Mr. Gupta. However, the implications of any such finding against Samiruddin we are not called upon to decide. The question which we have to consider with regard to the matter now under discussion is not whether Samiruddin was litigating bona fide in respect of the wakf, but whether Abdul Alim Abed's case was of a bona fide character. The onus would lie on Dr. Sen Gupta's client to show that Abdul Alim Abed, who was defendant 6 in suit No. 190 of 1915, was colluding with the plaintiffs : Venkata Seshayya v. Kotiswara Rao . This onus has not been discharged. There is no finding in the judgment of the learned Subordinate Judge to the effect that Abdul Alim was not litigating bona fide in the interest of the wakf. It seems most unlikely that there could possibly have been any collusion between him and Samiruddin. In this connexion, it is significant that the person who was nominated by the plaintiffs as Abdul Alim's guardian in para. 22 of the plaint was not appoirited as such by the Court as is shown by the decree in the suit (Ex. 5) wherein Abdul Alim Abed is described as represented by 'Babu. Anath Bandhu Das Gupta, she-ristadar of this Court appointed under the order of the Court, dated 13th September 1915.' Our conclusion on this point, therefore, is that Abdul Alim Abed was litigating bona fide in a representative character on behalf of the wakf, and that Fateh Nasib must be deemed to be claiming under him within the meaning of Explanation 6 to Section 11 of the Code.
53. The next point to be considered is whether Fateh Nasib and Abdul Alim Abed were litigating under the same title. This question has already been sufficiently discussed in connexion with Mr. Gupta's argument with regard to the applicability of Expl. 6; In our view, both Abdul Alim Abed and Fateh Nasib were litigating in a representative capacity as persons interested in upholding the wakf constituted under the provisions made in the wakfnama executed by Umer Ali in 1908. It cannot be contended that they are not litigating under the same title merely by reason of the fact that Abdul Alim Abed was a prospective mutwalli and Fateh Nasib claimed to be a de facto mutwalli. Their position bears some analogy to that of presumptive and actual reversioners in respect of a Hindu widow's estate. Admittedly, a decree obtained by a presumptive reversioner would bind the actual reversioners and the observations made by Lord Blanesburgh in Kesho Prasad Singh v. Sheo Pragash Ojha ('24) 11 AIR 1924 PC 247 appear to be applicable to the present case. In that case his Lordship observed:
To the present case the application of this principle is obvious and eminently salutary. It would be pes-simi exempli that the appellant, whose predecessor in interest failed on the same issue and was content to accept the adverse judgment against him, should be held entitled, years afterwards, when it might be much of the relevant evidence was no longer available to raise the same issue all over again. Their Lordships of course recognize that the principle is less obviously just where it operates to bind the ultimate reversioners by the result of a suit in which a plaintiff had failed whose interest, then merely presumptive, never ultimately matured. The danger of a feigned issue in such a suit is not' to be overlooked. But this danger is mainly serious where the failure of the first suit has been brought about by fraud or collusion where, of course, further and different considerations would arise.
54. The views expressed by this Court in Pramatha Nath v. Bhuban Mohan ('22) 9 AIR 1922 Cal 321 were to the same effect. Further, it has been held by the Judicial Committee that a presumptive reversioner who seeks to set aside an adoption or an alienation by a Hindu widow, does so in a representative capacity, Venkatanarayana Pillai v. Subbammal ('15) 2 AIR 1915 PC 124, and on the same analogy we hold that Abdul Alim Abed was litigating in a representative character in suit No. 190 of 1915. As regards the fourth and fifth conditions which are required in order to enable the doctrine of res judicata to be applied, there is, of course, no doubt in this case that the learned Subordinate Judge who tried suit No. 190 of 1915 was a Court competent to try the suit out of which this appeal arises, and that the question with regard to the validity of the wakfs was finally decided in the former suit. In this connection, it may be mentioned that it is immaterial that no express issue was framed in suit No. 190 of 1915 with regard to the rights of Abdul Alim Abed in respect of the wakf estate. It was quite clear from the pleadings in that suit that on the question of the validity of the wakfs his interest was identical with that of the plaintiffs. The suit was decided in his presence. He had a right to be heard, and he actually filed a written statement in which he supported generally the plaintiffs' case. The decision with regard to the validity of the wakfs in substance clearly affected his interest, to the same degree as it affected that of the plaintiffs, and he must be treated as bound by that decision. As observed by their Lordships of the Judicial Committee in Sheoparsan Sing v. Ramnandan Prasad Narayan Singh ('16) 3 AIR 1916 PC 78:
The rule of res judicata while founded on ancient precedent is dictated by a wisdom which is for all time. 'It hath been well said', declared Lord Coke, 'interest reipublicae ut sit finis litium, otherwise great oppression might be done under colour and pretence of law'...and so the application of the rule by the Courts in India should be influenced by no technical considerations of form, but by matter of substance withir the limits allowed by law.
55. Finally, it has been contended by Dr. Sen Gupta that the decision in suit No. 190 of 1915 cannot operate as res judicata as against Abdul Alim Abed, because he was in effect unable to appeal by reason of the fact that the appeal by the plaintiffs, to which Abdul Alim Abed had been made a party, was with- drawn as a result of a petition filed by the plaintiffs on 6th August 1917 (Exibit Z63). In this connexion, the order of the High Court of the same date (EX. X64) shows that Abdul Alim Abed was represented by his guardian, Anath Bandhu Das Gupta, who had represented him in the suit, and also that the respondents gave their consent to the withdrawal of the appeal. It is impossible, therefore, for us to hold that Abdul Alim Abed was prejudiced by the withdrawal of the appeal or that he was not properly represented in connexion with this matter. Further, there was in our view no reason why Abdul Alim Abed should not have appealed separately against the decision in suit No. 190 of 1915, if he had wished to do so, although he was merely impleaded as a pro forma defendant. This argument which has been put forward by the learned advocate for the appellant, therefore, fails. Our conclusion with regard to this part of the plaintiff's case is that, although we would have been prepared to accept Dr. Sen Gupta's contention that the wakfs created by Juman Mistry and Umer Ali were valid, the parties to the suit out of which this appeal arises are nevertheless precluded from re-agitating this matter in view of the fact that this question must be regarded as res judicata between them by virtue of the finding at which the learned Subordinate Judge arrived in Suit No. 190 of 1915 to the effect that these wakfs were invalid.
56. We must now consider the third main argument which has been put forward by Mr. Gupta to the effect that the title of his clients' predecessors-in-interest in respect of the property in suit had been perfected by adverse possession before 1928. On this point Mr. Gupta's main contention is that, even if the property in suit was originally wakf property by virtue of the wakfnama executed by Umer Ali in 1908, it nevertheless passed into the possession of Aberjan Bibi as secular property on 2nd March 1913, and from that date until 1928, when Fateh Nasib admittedly succeeded in getting into possession of the property, Aberjan Bibi and her successors remained in continuous possession thereof in the assertion of a title hostile and adverse to the wakf estate. Their title therefore was perfected in 1925 with the result that the title of Fateh Nasib or any other persons who sought to claim this property as wakf property was extinguished under Section 28 read with Article 144, Limitation Act. Dr. Sen Gupta's argument, on the other hand, is of a three-fold character: (1) In the first place, he contends that no question of adverse possession can arise as the mutwalli of the wakf estate would still be entitled under Article 134B, Limitation Act, to sue for the purpose of recovering possession of any portion of the estate, which might have been alienated by any of his predecessors; (2) the learned advocate then contends that, even if Article 144, Limitation Act, applied, limitation would only begin to run with effect from the date of the death of Aberjan Bibi or her removal from the mutwalliship; and (3) that, even if Aberjan Bibi be regarded as having been placed in possession of the disputed property in March 1913 and to have set up a title hostile and adverse to the wakf estate on that date, her possession and that of her successors was not of such a character as would be sufficient to enable the predecessors of the plaintiffs to perfect their title by adverse possession.
57. With regard to the first of these arguments, Dr. Sen Gupta relies on the decision of this Court in Raghunath Jiu v. Ganga Gobinda Pati : AIR1937Cal305 , in which it was held that Article 134B covered transfers whether made before or after the amending Act l of 1929 came into force. This article, which was inserted in Schedule 1, Limitation Act in 1929, is to the effect that the period of limitation in respect of suits 'by the manager of Hindu, Mahomedan or Buddhist religious or charitable endowments to recover possession of immovable property comprised in the endowment which has been transferred by a previous manager for a valuable consideration' shall be 12 years with effect from the death, resignation or removal of the transferor. Dr. Sen Gupta contends that Aberjan Bibi was not removed from mut-walliship until 1933, when her removal was ordered by the learned Additional District Judge of the 24-Perganas in a suit under Section 92, Civil P.C. (EX. Z-104). He contends, therefore, that Section 28, Limitation Act, would not begin to operate until 1945. This argument is, however, based on the assumption that Aberjan Bibi entered into possession of the disputed property as a mutwalli and that she transferred this property to Badaruddin Ahmad in June 1913 when she was the mutwalli of the wakf estate. The same assumption also underlies Dr. Sen Gupta's second argument whereby he contends that, if Article 144 applies, limitation would only run from the date of Aberjan Bibi's death or from the date of her removal from the mutwalliship. This proposition is based on a series of decisions of the Privy Council beginning with the cases in Vidya Varuthi Thirtha v. Balusami Ayyar ('22) 9 AIR 1922 PC 123 and Ram Charan Das v. Naurangi Lal . In the latter case it was observed by Lord Eussell of Killowen that:
A mahant has power (apart from any question of necessity) to create an interest in property appertaining to the math, which will continue during his own life, or to put it perhaps more accurately, which will continue during his tenure of office of mahant of the math, with the result that adverse possession of the particular property will only commence when the mahant who had disposed of it ceases to be mahant by death or otherwise.
58. His Lordship went on to say:
A mahant is at liberty to dispose of the property of a math during the period of his life and that a grant purporting to be for a longer period is good to the extent of the mahant's life interest. Here again their Lordships think that the reference to life is upon the footing that the mahant continues during his life to hold that office. It will be observed that the statement is in no way confined to the grant of a lease, but covers the case of a purported out-and-out grant of the property. Whatever the intended duration of the attempted grant may be, it is good, but good only for the limited period indicated.
59. If this had been a case such as that with which their Lordships of the Judicial Committee were dealing in the two last cited cases, Section 28, Limitation Act, would not come into operation until 1945, but the question must be considered whether Aberjan Bibi was ever a mutwalli of the disputed property and transferred this property to Badaruddin Ahmed in her capacity as mutwalli. In our view, it cannot be said that this lady ever became a mutwalli of the wakf estate. It is true that she was nominated by Umer Ali In the wakfnama of 1908 to succeed him as co-mutwalli jointly with Samiruddin, but it is quite clear from the evidence before us that she never accepted the mutwalliship and, in fact, she availed herself of the earliest opportunity to repudiate it. In such circumstances she cannot be regarded as being under any fiduciary disability in the matter of possessing adversely to the wakf estate : Ishwari Bhubaneshwari v. Broja Nath . Umer Ali died in September 1911 and, on 1st March 1912, Aberjan Bibi filed Suit No. 86 of 1912 against Samiruddin and certain other persons, who have already been mentioned, for a declaration that the wakfnamas executed by Juman Mistry and Umer Ali were invalid and in which she asked for a partition of the property covered by those documents. It is said by Dr. Sen Gupta that an application dated 20th November 1911, (Ex. Z-18), shows that Aberjan Bibi must have accepted the mutwalliship. This application was, however, a document in which Samiruddin had asked that he and Aberjan Bibi might be registered as joint mutwalli in respect of the Rowland Road property in the assessment book of the Corporation of Calcutta. It contains no indication to show that Aberjan Bibi ever consented to such an application being made and, in view of the fact that she must at this time have been taking steps in connection with the institution of her Suit No. 36 of 1912, it is not unlikely that this document was presented to the authorities of the Calcutta Corporation by Samiruddin in order to create evidence which might possibly be useful to him in connection with the suit which Aberjan Bibi was going to institute against him. Her subsequent con-duct in connexion with the suit, by which she obtained a partition with Karim Bux of the alleged wakf properties on the basis that they were secular in character, and the fact that she took possession of her share of the properties on this basis and executed a hebabilewaj in respect of the Rowland Road property are also circumstances which indicate conclusively that Aberjan Bibi never accepted the office of mutwalli. On the contrary, she set up title hostile to the wakf estate in respect of the property which fell to her share as a result of the decree in Suit No. 36 of 1912. There is some evidence that sho concerned herself at various times with certain matters connected with the maintenance of the mosque which was built by Juman Mistry. This, however, appears to have been due to the fact that, under the decree (Ex. 3) in Title Suit No. 36 of 1912, some specified properties had been charged with a sum of money for the maintenance of the mosque and for meeting certain religious expenses and it had been ordered that Aberjan would be
in sole charge of the said mosque, burial ground, and the properties so set apart for the mosque as described in Schedule C of this decree, and that she do collect rents thereof, pay Government Collectorate revenue and taxes, etc., therefore, repair the mosque and maintain the said properties and carry out the religious festivals at the said mosque and supervise and perform all necessary work relating thereto.
60. The creation of this charge and the direction whereby Aberjan Bibi was made responsible for expenditure connected with the mosque, this burial ground and certain religious ceremonies did not have the effect of making her a mutwalli of the estate, but merely made her responsible for ensuring that the income which had been charged on some properties for the above mentioned purposes was properly expended. In our view, therefore, Aberjan Bibi was never the mutwalli of the wakf estate created by Juman Mistry and Umer Ali and never acted as such. In these circumstances, the only article in Schedule 1, Limitation Act, which can have any application to the present case is Article 144 which provides that the period of limitation for a person who sues 'for possession of immovable property or any interest therein not otherwise specially provided for' shall be 12 years from the date 'when the possession of the defendant becomes adverse to the plaintiff.' In view of the provisions of Section 28, Limitation Act, if it is found that Aberjan Bibi and her successors were in adverse possession of the disputed property for 12 years continuously with effect from 2nd March 1913, they must be held to have perfected their title thereto. The cases upon which Dr. Sen Gupta relies have no application as regards transfers by persons who profess to make the transfers in their own right and in a secular capacity. In the present case the date of the death of Aberjan or of an order purporting to remove her from the mutwalliship is immaterial. The important date to consider is the date on which she obtained possession of the property in suit in the assertion of a hostile title to the wakf. It was pointed out by Mukherji and Guha JJ., in Debendra Nath v. Naharmal Jalan ('30) 17 AIR 1930 Cal 673 that in that particular case adverse possession in respect of wakf property sold,by a person in his secular capacity accrued in favour of the vendee with effect from the date of the alienation. On the same principle, in our view, the adverse possession of the predecessor of the plaintiffs will begin on,2nd March 1913, the date on which Aberjan Bibi took possession of the disputed property. As pointed out by Sir George Rankin in Mosque known as Masjid Shahid Ganj v Shiromani Gurdwara Parbandhak Committee, Amritsar :
It is impossible to read into the modern Limitation Acts any exception for property made wakf for the purposes of a mosque, whether the purpose be merely to provide money for the upkeep and con-. duct of a mosque or to provide a site and building for the purpose....The property now in question having been possessed by Sikhs adversely to the wakf and to all interests thereunder for more than 12 years, the right of the mutwalli to possession fop the purposes of the wakf came to an end under Article 144, Limitation Act, and the title derived under the dedication from the settlor or wakif became extinct under Section 28. . . . But if the title conferred by the settlor has come to an end by reason that for the statutory period no one has sued to eject a person possessing adversely to the wakf and every interest thereunder, the rights of all beneficiaries have gone.
61. It remains, therefore, to be seen whether the possession of Aberjan Bibi and her successors with effect from 2nd March 1913 has been of a nature and character sufficient to result in the perfection of their title before Fateh Nasib got possession of the disputed property, as admitted by the plaintiffs in 1928. In this connection, Dr. Sen Gupta has referred to the case in Sris Chandra Nandy v. Baijnath Jugal Kishore , in which the Privy Council restate the general principles of the law with regard to adverse possession, which are conveniently summarized in the judgment of the Judicial Committee in Secretary of State v. Debendra Lal Khan as follows:
As to what constitutes adverse possession, a subject which formed the topic of some discussion in the case, their Lordships adopt the language of Lord Robertson in delivering the judgment of the Board in Radhamoni Debi v. Collector of Khulna (1900) 27 Cal 943 at p. 140 where his Lordship said that 'the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.' The classical requirement is that the possession should be nec vi nec clam nec precario. Mr. Dunne for the Crown appeared to desiderate that the adverse possession should be shown to have been brought to the knowledge of the Crown, but in their Lordships' opinion there is no authority for this requirement. It is sufficient that the possession be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening. ... It may be added that it is not necessary in order to establish adverse possession that the proof of acts of possession should cover every moment of the requisite period....'The fact of possession may be continuous, though the several acts of possession are at considerable intervals. How many acts will infer the fact is a question of proof and presumption independent of prescription' (Miller on Prescription. 36). The nature of the requisite possession must necessarily vary with the nature of the subject possessed. The possession must be the kind of possession of which the particular subject is susceptible.
62. It was also pointed out by the Judicial Committee in Basant Kumar Roy v. Secretary of State ('17) 4 AIR 1917 PC 18:
An exclusive adverse possession for a sufficient period may be made out in spite of occasional acts done by the former owner on the ground for a specific purpose from time to time.
63. Further, in Nageshwar Bux Roy v. Bengal Coal Co. Ltd. ('31) 18 AIR 1931 P C 186 their Lordships stated they were not at all disposed to negative or to weaken the principle that as a general rule where title is found-ed on an adverse possession the title will be limited to that area of which actual possession has been enjoyed. But the application of this general rule must depend upon the facts of the particular case.
64. We must therefore consider by reference to the evidence whether the plaintiffs have succeeded in establishing their title to the disputed property by reason of adverse possession. In discussing issue 5 with regard to the question of limitation the learned Subordinate Judge examined in considerable detail the oral and documentary evidence which was adduced in this case, and this evidence was also placed before us by the learned advocates on both sides. The learned Subordinate Judge had the advantage of observing the demeanour of the witnesses who testified before him, and we are not prepared to dissent from the conclusion at which he has arrived that the evidence of the plaintiffs' witnesses was superior to that which was given on behalf of Fateh Nasib. The learned Subordinate Judge considered that these witnesses had proved the possession of Badaruddin Ahmed and Mahananda Nandy, and he arrived at the conclusion that these people had been in possession of the suit lands up to June 1928' when Mahananda Nandy became insolvent. His final conclusion on this point is as follows:
The suit lands are a compact plot of land and it is in evidence that Mahananda fenced it with corrugated iron sheets. The godowns in this land were in the occupation of tenants who were ejected by Mahananda. The remaining land was lying patit or vacant. So I must hold that the entire land was in the possession of Mahananda and not merely the particular plots in which he got decrees for ejectment.
65. In view of the abovementioned findings, it is somewhat surprising that, with reference to the question of adverse possession, the learned Subordinate Judge decided that the plaintiffs had not been able to establish their case on the ground that
the doctrine of constructive possession applies only in favour of a rightful owner and must not, as a rule, be extended in favour of a wrongdoer whose possession must be confined to the land of which he is actually in occupation.
66. On this point the learned Subordinate Judge appears to have taken too strict a view with regard to the doctrine of constructive possession. The proper test to be applied in a case of this nature is whether the predecessors of the plaintiffs for a period of twelve years or more exercised such dominion over the property in suit as to justify an inference of fact that they were in possession of the whole. It was not necessary that they should prove affirmatively that their predecessors had actually been in physical possession of every square inch of this land, but it should have been considered whether the acts of possession which had been proved would legitimately show that the predecessors of the plaintiffs had enjoyed dominion over this property in the manner in which such dominion is normally exercised. As pointed out by the Privy Council in Nageshwar Bux Roy v. Bengal Goal Co. Ltd. :
There is an undoubted authority for the proposition that, where a person without any colour of right wrongfully takes possession as a trespasser of the property of another, any title which he may acquire by adverse possession will be strictly limited to what he has actually so possessed. The maxim 'tantum prescriptum quantum possessum' is rigorously applied to him....On the other hand, possession is a question of fact and the extent of the possession may be an inference of fact....In considering the character and effect of acts of possession in the case of mineral field, it is necessary to bear in mind the nature of the subject and the possession of which it is susceptible.
67. The views expressed by the Privy Council in Secretary of State v. Debendra Lal Khan were to the same effect. In a case such as that with which we are now dealing, which relates to a compact plot of land, part of which had been let out to tenants and part of which was vacant, it would be sufficient for the plaintiffs to show that for a period of twelve years or more their predecessors held the tenanted land through tenants who had attorned to them or through licensees whom they had permitted to remain on the land and that, in respect of untenanted land, they had asserted their possession from time to time in some suitable manner, for instance, by taking or selling the produce of such land. Mere interference with their possession by the rightful owner would not be sufficient to show that they had been dispossessed unless such interference had resulted in their being definitely ousted from any portion of the land: Basant Kumar Roy v. Secretary of State ('17) 4 AIR 1917 P C 18. There is also authority for the proposition that even if they had been dispossessed from a certain portion of the land by another trespasser and ultimately recovered possession, such dispossession would not be deemed to constitute a break in their possession: Dagdu v. Kalu (98) 22 Bom 733.
68. In the present case, it is hardly disputed that Aberjan Bibi and, after her, Badarud-din Ahmed were in possession of the disputed property from 2nd March 1913 until Badaruddin transferred it to Mahananda Nandy on 9th December 1919. Shortly after Aberjan Bibi had been placed in possession of this property by the Court on 2nd March 1913, she applied for the registration of her name in the collectorate records (Ex. .6) on 12th June 1913, and similar steps were taken by Badaruddin Ahmed on 18th February 1914 after the property had been transferred to him (Ex. 7). The oral evidence makes it clear that until 1919 rent was realized by Badaruddin Ahmed either on behalf of Aberjan Bibi or, after the execution of the hebabilewaj on 22nd June 1913, on his own behalf. There is also evidence to show that Badaruddin Ahmed paid the corporation rates in respect of this property (EX. 48) during a considerable portion of the period when he was in possession. It must also be remembered that in suit No. 190 of 1915, which was instituted by Samirud-din and certain other persons, Badaruddin Ahmed was impleaded as a defendant on the ground that a part of the wakf property had been transferred to him and the plaintiffs asked for joint possession of the property in suit with Aberjan Bibi. The logical inference, therefore, is that at that time Aberjan Bibi or her transferees were in possession of the disputed properties and the plaintiffs were out of possession. Further, with reference to the possession of Badaruddin Ahmed there is evidence on the record, which was believed by the learned Subordinate Judge, to the effect that he had taken the fruit of the trees on the land and settled the date and palm trees with certain persons. This evidence we are not prepared to disbelieve. With regard to this part of the case, therefore, we consider that it has been proved that Aberjan Bibi and Badaruddin Ahmed were in continuous adverse possession of the property in suit from 2nd March 1913 until 9th of December 1919.
69. Dr. Sen Gupta's main argument with regard to the evidence which has been given in connexion with adverse possession of the plaintiffs' predecessors is that Mahananda Nandy never actually succeeded in obtaining possession of the property in suit until he had ejected the tenants on the land, who had refused to acknowledge him as their landlord. The evidence, however, indicates that the tenants who were actually on the property at the time of the conveyance, to Mahananda Nandy actually attorned to the latter as their landlord. If the testimony of Chandi Charan Hazra, P.W. 1, is read in the light of the requisitions with regard to the vendor's title (Ex. 64) and Messrs. H. N. Dutt's bill of costs (Ex. 63), dated 2lst January 1920, it would appear that all the tenants-who were actually on the land at the time wrote letters in which they attorned to Mahananda Nandy as their landlord and that Basiruddin, who was a licensee in respect of a portion of premises No. 3, Rowland Road, gave an undertaking that he would vacate the land occupied by him when requested to do so. As regards Basiruddin, Maha'nanda Nandy took steps to eject him by instituting ejectment Suit No. 357 of 1920 and the judgment in that (Ex. 8), dated 28th February 1922, shows that this man was ejected from two cottas of land on the footing that he was Mahananda's licensee. After certain further litigation with regard to this particular plot of land, Mahananda Nandy ultimately obtained delivery of possession on 8th July 1922 (Ex. 11). On 12th May 1922 Abdul Alim Abed had instituted a suit for an injunction against Mahananda to restrain him from executing the decree which he had obtained in Suit No. 357 of 1920 and for a declaration to the effect that the decree in that suit was not binding on Abdul Alim Abed. This suit was finally dismissed by Second Munsif of Alipore on 15th May 1923 (Ex. 22) and in his judgment the learned Munsif noted that the defendant had already taken possession of the land in suit by demolishing the huts standing thereon and was admittedly in possession of the land before the written statement had been filed.
70. With regard to the tenants there is no reason for disbelieving the evidence on the record to the effect that they actually paid rent to Mahananda Nandy for the first year or two after he had bought the property from Badaruddin Ahmed. It appears, however, that from about the beginning of 1921 Abdul Alim Abed succeeded in inducing some of these tenants to execute kabuliyats in his favour. Some of these documents have been accepted as evidence in this case namely, (1) Ex. Z10 dated the 8th March 1921, a kabuliyat executed by Bushan Singh in favour of Abdul Alim Abed ; (2) Ex. z11 of the same date executed by Kartar Singh; (3) Ex. Z12 of the same date executed by Dalip Singh ; (4) Ex. Z13 of the same date, executed by Pala Singh and (5) Ex. Z14 dated the 10th March 1921 executed by Bishan Singh. This action which was taken by Abdul Alim Abed, together with his con-duct in connexion with certain criminal cases which will presently be discussed, merely indicates that Abdul Alim Abed was endeavouring at this time to re-assert the wakf character of the property and to cause as much trouble as possible to Mahananda Nandy probably in view of the fact that he had decided to institute Suit No. 153 of 1922, which was at first numbered Suit No. 150 of 1921, the plaint of which was filed on 28th May 1921.
71. It seems to have been on account of the above mentioned steps taken by Abdul Alim Abed that Mahananda Nandy instituted certain rent suits against the tenants who had discontinued payment of rent to him. The first of these suits was Rent Suit No. 1073 of 1921 against Narayan Singh and Bishan Singh, in which the plaintiff sought to recover arrears of rent for January and February 1921 (Ex. 15). Had these persons not paid rent in respect of any of the previous months there is no reason to suppose that the arrears for such period would not have been claimed in this suit. The suit was withdrawn against Narayan Singh on 10th April 1922 and was decreed ex parte against Bishan Singh on 28th January 1922 (Ex. 75). The next of these suits was suit No. 1252 of 1921 against Kripa Singh, in which the plaintiff sought to recover arrears of rent for the period from April to June 1921. The suit was decreed on 5th of July 1922. Subsequently, Ejectment Suit No. 805 of 1922 was filed against Bishan Singh and another Suit No. 883 of 1922 against Pala Singh. As regards the latter tenant the plaintiff claimed arrears of rent and damages for the period from April 1921 to May 1922. The plaintiff obtained decrees in both these suits (EX.S 12 and 13) which he put into execution. Having regard to the nature of the above mentioned proceedings it is quite clear that Mahananda Nandy was in possession of the tenanted portion of the land in suit through tenants, and the mere fact that some of these tenants had become refractory could not have the effect of interfering with his possession in view of the general principles of estoppel laid down in Section 116, Evidence Act. Similarly, the possession of Basiruddin in respect of a two cotta plot in premises No. 3, Rowland Road was merely the possession of Mahananda Nandy.
72. With regard to premises No. 3 Rowland Road, it is, however, argued by Dr. Sen Gupta, that Abdul Alim Abed actually succeeded in getting possession of these premises. On this point, the evidence is merely to the effect that Abdul Alim Abed built some sort of a hut on Basiruddin's land, and it appears to have been in respect of this building that he obtained sanction from the Calcutta Corporation on 23rd of November 1921, (Ex. Z8) and a document, dated 13th February 1922, (Ex. Z20), shows that a notice under Section 451, Calcutta Municipal Act, was served on him in respect of some unauthorised work at 3, Rowland Road on 26th January 1922. It is true that Abdul Alim Abed had formerly lived under the protection of Aberjan Bibi at a house situated at 3, Row-land Road, but the evidence indicates that he left this house in 1917 or 1918 and the building was subsequently demolished by Basiruddin. Even if it be admitted that he erected a hut on this land in 1921, it is clear that he did so merely as the licensee of Basiruddin who was himself the licensee of Mahananda Nandy, and it cannot possibly be contended that any possession which he may have obtained enured to his own benefit. In any case, the period of Abdul Alim Abed's occupation of the hut must have been of short duration as the huts which stood on this plot of land were demolished when Mahananda executed his decree against Basiruddin on 8th July 1922.
73. Dr. Sen Gupta has referred to certain criminal cases between the predecessors of the plaintiff and Abdul Alim Abed, which began with a complaint filed by Badaruddin Ahmed on 11th October 1919 to the effect that Abdul Alim Abed and other persons had trespassed upon premises Nos. 2 and 3, Rowland Road. In this case Abdul Alim Abed and Fateh Nasib were acquitted on 22nd July 1920 (Ex. Z42). Again, on 10th April 1922 Mahananda Nandy appears to have obtained an order under Section 144, Criminal P.C., against Abdul Alim Abed and Fateh Nasib on the allegation that they were trying to disturb his possession of the Rowland Road property by forcibly erecting a hut thereon. This probably has reference to the hut which has already been mentioned in connexion with theplot of land in respect of which Basiruddin was a licensee. It certainly cannot be said that any of these criminal proceedings indicate that Abdul Alim Abed or Fateh Nasib was in possession of any portion of the Rowland Road property. They merely indicate that these persons were endeavouring to disturb the possession of Badaruddin Ahmed and Mahananda Nandy.
74. If the oral evidence is read in the light of the documents which have been filed in this case, there is no doubt that, after his purchase from Badaruddin Ahmed, Mahananda Nandy remained in full and open possession of the Rowland Road property in every way by which such property is capable of being possessed. For instance, there is evidence which cannot be rejected to the effect that lie actually placed a fence round the whole of this property during the period of his possession, although the exact date when the fence was erected has not been mentioned. There is also evidence as regards the vacant land to the effect that Mahananda took fruit from the trees and settled the trees with various persons and that he allowed horses to be trained on this portion of the land. We are satisfied that his possession continued until his firm were adjudicated insolvent on 14th June 1928 when Fateh Nasib admittedly obtained possession of the property in suit.
75. We therefore arrive at the conclusion that all the necessary elements with regard to the adverse possession of their predecessors for a period of more than 12 years have been established by the plaintiffs in this case. It follows therefore that, as they were holding adversely to the wakf estate, the title of that estate has become extinguished in view of the provisions of Article 144, Limitation Act, read with Section 28 of that Act. The plaintiffs have been able to establish all the requisite links as regards their title to this property. They are therefore entitled to succeed in the suit out of which this appeal arises on grounds other than those on which the suit was decided in their favour by the learned Subordinate Judge. This appeal is therefore dismissed with costs. The appellant was allowed to file his appeal in forma pauperis. We therefore direct him to pay the requisite court-fees, namely Rs. 2187-8-0 only under Order 33, Rule 11, Civil P.C., read with Order 44, Rule 1, of the Code.
76. I agree.