Mookerjee and Vincent, JJ.
1. The subject-matter of the litigation, which has culminated in this appeal, consists of immoveable properties comprised in two waqfs, one created by Ayinuddin Hyder on the 22nd April 1864, and the other by his widow, Faizunnessa Bibi on the 29th January 1877. The plaintiff, who is a relation of the founders of the two waqfs, seeks for declaration of his right as mutawalli and for recovery of possession of the properties of the endowments. The first defendant is the Nawab of Dacca and is now in possession of the properties as the mutawalli under the deed of Faizunnessa executed on the 29th January 1877. The second defendant is a cousin of the plaintiff, who had previously failed in a litigation commenced by him on the 14th August 1880 for recovery of possession of the waqf properties as mutawalli. The third and fourth defendants are sisters of the plaintiff and have been brought on the record as members of the family interested in the endowment. Their relation to the founder is indicated in the following genealogical table:
Mainuddin Safdar. |
____|____________________________________________________ Ayinuddin Hyder died
| | 25th May 1868.
| | Widow Faizunnessa
Nasiruddin Hyder Mazeruddin Bibi died 28th
died July 1805. Omar. June 1897 (acc. plff.)
_____|____________________ | 3rd June 1886
| | | Wahiduddin (acc.defdt.)
Muhammad Tahera Khalima
Mustafa, Bibi Bibi
(plff.) (def. 4). (def. 3).
2. The fifth defendant is the naib mutawalli or the Deputy Superintendent of the endowment. The remaining defendants, fourteen in number, are members of the family of the Nawab of Dacca. The suit was defended substantially by the first defendant, the Nawab, and by the fifth defendant, the Deputy Superintendent of the waqf. They denied the title of the plaintiff to hold the office of mutawalli in respect of either of the two waqfs, and raised the plea that the claim, even if otherwise well-founded, was barred by limitation. A question appears also to have been raised as to the validity of the waqfs under the Mahomedan Law. This, however, has not been investigated, for the obviously sufficient reason that, as both parties lay claim to the office of mutawalli, the question of the legality of the waqf cannot properly arise. The Subordinate Judge in the Court of first instance has overruled the objection of the contesting defendants, and has held that the Nawab of Dacca has no valid title to the office of mutawalli under the deed of Faizunnessa, while the plaintiff is entitled to hold the office as one of the representatives of the founders of the two endowments. He has further held that as the suit has been commenced within 12 years of the death of Faizunnessa in 1897, as alleged by the plaintiff, the claim is not barred by limitation. In this view he has made a decree in favour of the plaintiff, by which the latter is appointed the chief mutawalli of all the disputed properties except one, and is authorized to recover possession of the waqf properties from the first defendant. The first and fifth defendants have now appealed to this Court, and on their behalf the decision of the Subordinate Judge has been assailed substantially on two grounds, namely, first, that as regards the waqf created by Faizunnessa on the 29th January 1877, the plaintiff is not entitled to hold the office of mutawalli and recover possession of the disputed properties, in view of the clear directions to the contrary given by the founder herself; secondly, that so far as the waqf created by Ayinuddin Hyder on the 22nd April 1864 is concerned, the title, if any, of the plaintiff to hold the office of muttawalli has been extinguished by the adverse possession of that office by Nawab Ahsanullah and Nawab Salimullah during more than 28 years from the 29th January 1877 to the date of the institution of the suit. Both these points have been controverted on behalf of the plaintiff-respondent.
3. In support of the first ground urged on behalf of the appellants, our attention has been invited to the deed of waqf, called the towliatnamah executed by Faizunnessa Bibi on the 29th January 1877. This deed has a two fold character. It deals with the properties dedicated as waqf by Ayinuddin Hyder on the 22nd April 1861; this aspect of it will require consideration when we come to deal with the second ground. But it also creates a new waqf for the purposes of which the founder dedicates her own properties. She appointed Nawab Ahsanullah as the mutawalli in respect of both the waqfs, and then added the following clause with regard to her husband's brother's grandsons, the present plaintiff and the second defendant: 'Though Muhammad Mustafa and Wahiuddin, the sons of my deceased husband's brother's sons are living, they denied the validity of the waqfnamah; and intending to divide the waqf properties among themselves as by right of inheritance, they entered into various litigations with me for seven of eight years in Civil, Criminal and Revenue Courts, in which they were unsuccessful up to the High Court. Besides, they are indebted to the amount of seven or eight thousand rupees. In affect, they are but irreligious people, because, although they are not entitled in any way to the waqf properties, they brought these suits to gain unlawful possession. In these circumstances they ought not in any way to be made mutawallis.' In a later passage in the same deed, the founder repeated her objection to these persons and directed that 'though Nawab Ahsanullah might, when old, appoint a fit and proper person as a successor in the office, Muhammad Mustafa and Wahiuddin who had committed waste were not to be appointed.' It is manifest from those provisions in the towliatnamah that the founder deliberately directed that the present plaintiff was not on any account to hold the office of mutawalli of the waqf created by her. Under these circumstances, even if we assume that the Court has the authority to disregard the clearly expressed wishes of the founder, the question necessarily arises whether the plaintiff should be appointed mutawalli of the waqf of 1877. In our opinion only one answer is admissible. The Court will not, even if we assume that it has the power to do so, disregard the directions of the founder except for the manifest benefit of the endowment. The principles applicable to cases of this description are well-settled and were explained by Lord Justice Turner in In re Tempest (1866) L.R. 1 Ch. App. 485; 14 L.T. 685; one of these principles is that the Court in selecting a person for the office of trustee will, in the exercise of its judicial discretion, have regard to the wishes of the author of the trust expressed in or plainly deduced from the instrument, and if he has declared a particular person not fit to be appointed a trustee, the Court will refrain from appointing him. To what extent regard is paid to the wishes of the founder may be illustrated by the following texts translated from two works of high authority on Mahomedan Jurisprudence:
4. If the founder of the waqf stipulates in the deed of waqf that such of his descendants as becomes converted from the sect of Ithbat into that of I'tizal will be excluded (that is, from participation in the benefit of the waqf), the waqf is valid and they are excluded on their conversion. If, on the other hand, the founder is a mutazilah (that is a follower of the sect of I'tizal) and stipulates the opposite of the stipulation stated above, his stipulation is acted upon (Is'af of al-Tarabulusi, A.D. 1516, Cairo Edition, page 89).
5. Any condition imposed by the founder of the waqf must be respected, because of the dictum of the jurists, 'any condition imposed by the founder of the waqf, is like an express text of the law-giver,' that is, with respect to the bindingness to act upon it, and the implication and indication as we have described in the commentary on the Kanz, except in a few cases, namely,
(1) Where the founder stipulates that the mutawalli cannot be removed by the Cadi, the Cadi can remove one unfit for the office.
(2) Where he stipulates that the waqf property should not be leased for more than a year, and people are unwilling to lease
it for a year, or there is advantage to the poor in giving a longer lease, the Cadi (but not the mutawalli) can disregard the stipulation.
(3) Where it stipulates that the Koran should be recited at his grave, the restriction as to the place is void.
(4) Where he stipulates that the surplus of the revenue should be given in charity to any one asking for it at such and such a place daily, no regard will be had to his stipulation The mutawalli can give it in charity to those who ask for it at a mosque other than that mosque or to those outside that mosque or to those who do not ask for it.
(5) Where he stipulates that the beneficiaries should daily get a fixed quantity of bread and meat, the mutawalli can pay them the price (of that quantity of bread and meat).
(6) Where the founder has fixed an amount for the salary of the Imam, the Cadi can increase it where it is insufficient.
(7) Where the waqf him prohibited istibdal, i.e., exchange of waqf property for another property, the Cadi can have recourse to istibdal when it is more beneficial. [Al-Ashbah wa'l-Naza'ir, Analogies and Precedents by the celebrated Egyptian jurist, Ibn Nujaym, author of Bahr-al-raiq, A.D. 1562. This passage is referred to in the Durr al-Mukhtar, Constantinople Edition, Volume III, page 601, and is quoted in extenso by the Raddal-Muhtar, Constantinople Edition, Volume III, page 601.]
6. Tested in the light of the principle recognised in these texts, it is clear that the plaintiff cannot succeed. In the case before us, there is no possible room for doubt as to the wishes of the founder in this respect. We must, therefore, uphold the contention of the appellants that the plaintiff-respondent ought not to be appointed to hold the office of the mutawalli of the waqf created by Faizunnessa Bibi in 1877. The first ground taken on behalf of the appellants must consequently prevail.
7. In support of the second ground taken on behalf of the appellants, our attention has been invited to the course of dealing of the waqf created by Ayinuddin Hyder in 1864. The waqfnamah shows that the founder appointed himself the first mutawalli, and also gave directions for the appointment of his Successors. The three passages which bear upon this point are as follows:
(a) So long as I am living, I myself shall be mutawalli of the same, and I appoint Moulvi Nasiruddin Hyder, my brother's son, as the principal mutawalli, and Munshi Ahmedullah and Moulvi Bux Ali as the naib mutawalli to act after me.'
(b) The said mutawalli (that is Nasiruddin Hyder) in his old age shall be at liberty to appoint according to his own choice any of his own children, or any of the children of his brother, or any person whom he considers competent and capable to discharge the mutawalli duties, as mutawalli in his own place.'
(c) 1 shall remain the mutawalli and also the possession and enjoyment of the endowed properties as waqf properties shall rest with me, and after that with my wife, Mussamat Faizunnessa Bibi, and under her orders with the principal mutawalli aforesaid and the naib mutawalli above named.
8. The actual contingency, however, which happened was not anticipated and provided for by the founder. His nephew, Nasiruddin Hyder, whom he had nominated as his successor in the office of mutawalli, died in 1865. Clauses (a) and (b) set out above therefore never came into operation, and although Ayinuddin lived for three years longer, he did not in this respect alter or supplement the terms of the original waqfnamah. The consequence was that upon his death in 1868 his widow, Faizunnessa, obtained certificate and undertook the performance of the duties of mutawalli of the waqf created by her husband. She continued to do so up to the 29th January 1877, when she executed the towliatnamah to which reference has previously been made. In so far as this deed purports to create a new waqf of her personal properties, we have already considered its effect. We have now to examine its legal consequences in so far as it modifies the terms of the waqfnamah of 1864 by Ayinuddin Hyder. We are not concerned in this litigation with the validity of the modifications sought to be introduced by Faizunnessa in the mode of administration of her husband's waqf. We are concerned solely with the effect of her surrender of the office of mutawalli, of the appointment by her of Nawab Ahsanullah as her successor in that office, and of the directions given by her for the appointment of the successor of the Nawab himself. In the introductory portion of the deed, she recites that the death of Naziruddin in the lifetime of her husband had rendered inoperative his proposed appointment as mutawalli, that her husband to the time of his death acted as mutawalli, and that since his death she herself had discharged the duties of that office. She then proceeded to appoint voluntarily Nawab Ahsanullah as the mutawalli and also to confirm the appointments of the naib mutawallis. The deed contemplated that the Nawab should take immediate possession of the office and of the properties appertaining thereto. We now know from Exhibit 3 that the Nawab did so and got himself registered as the mutawalli on the 14th April 1877. Paragraph 23 of the deed finally provided that, when he reached old age, he would be entitled of his own choice to appoint a suitable person as mutawalli; but that Mahomed Mustafa and Wahiduddin were not to be appointed on any account. The deed further provided that, in the event of failure on the part of Nawab Ahsanullah to appoint his successor, the person who would take his place (in the family) would become as the mutawalli of the waqf properties. The Nawab, as we have already stated, entered upon the execution of the duties of his office as a mutawalli and administered the waqf properties from 1877 to the time of his death on the 16th December 1901. During this period he successfully resisted the suit brought by Wahiduddin in 1880 for recovery of possession of the waqf properties That suit was dismissed by the Subordinate Judge, whose judgment was confirmed on appeal by the District Judge and ultimately by this Court in 1883 Upon the death of Nawab Ahsanullah in 1901, his son, Nawab Sahmullah, too possession of the waqf properties as mutawalli, and the plaintiff now seeks to eject him on the ground that he is a trespasser, and has no right to hold the office as against the plaintiff, who, as a member of the family of the founder, has a prior claim to the office The substantial question in controversy is whether the title of the plaintiff to the office, if any, has not been extinguished by limitation.
9. We may assume, for the purposes of the present discussion, that although Faizunnessa was not expressly appointed as mutawalli, the waqfnamah 1864 clearly intended to give her the same right of superintendence after the death of her husband as the latter had retained during his lifetime. We assume therefore, that Faizunnessa lawfully took possession of the waqf properties as mutawalli after the death of her husband in 1868. There is nothing in the deed of endowment, however, which could authorise her to appoint a successor or to vacate the office in favour of another person of her choice. What, then was the effect of her towliatnamah of the 29th January 1877? An examination of the following texts, translated from works of recognised authority on Mahomedan Law, tends to show that her act in both these respects was entirely unauthorised, sanctioned neither by Mahomedan Law nor by the terms of the original endowment:
10. A man in good health made waqf for the benefit of a particular mosque having a mutawalli. The mutawalli died after this, and the people who frequented the mosque assembled and appointed a man as mutawalli with the sanction of the Cadi. This mutawalli applied himself to the repairs of the mosque out of the income of the waqf of the mosque. The jurists differ as to such an appointment of a mutawalli; the most correct view is that such an appointment is not valid. The power of making the appointment of a mutawalli belongs to the Cadi [Fatawa Qadi Khan, A.D. 1196, Calcutta Edition, 1835, Volume 4, page 216].
11. If the mutawalli of a waqf suffering from illness which culminates in death delegates the affairs of the waqf to another person, it is valid, because the mutawalli is in the position of an executor, and the executor has the power of appointing another as his executor [Fatawa Qadi Khan, Volume 4, page 219].
12. If the appropriator dies without appointing a mutawalli, the Cadi should appoint the mutawalli. But he should not appoint a stranger so long as a fit and proper person can be found from amongst the members of the founder's family, either because the latter would be more attached (to the waqf) or because the intention of the founder might have been that the waqf should be associated with him. If no one from amongst the founder's family could be found, (the Cadi should appoint) a stranger who is a fit and proper person for the post. If, after the appointment of the stranger, some one from amongst the descendants of the appropriator is found to be qualified for the appointment, the mutawalliship should revert to him just as in the case of succession (Is'af by al-Tarabulusi, A.D. 1516, Cairo Edition, page 42).
13. If the mutawalli dies and the appropriator survives him, the power of appointing another mutawalli belongs to him and not to the Cadi. But if the appropriator does not survive him, then the executor of the founder shall have preference over the Cadi. But if the founder has not left any executor, then the power belongs to the Cadi. Thus it is laid down in Fataw & Sughrah. In the Asl (of Imam Muhammad) it is laid down that the hakim should not appoint a stranger as mutawalli so long as there could be found amongst the members of the appropriators' family any person fit for the same. If no one qualified could be found amongst them, and a stranger is appointed mutawalli, and then afterwards some one amongst them is found to be qualified, the mutawalliship shall revert from him (the stranger) to the member of the founder's family. Thus it is laid down in the Wajiz (Fatawa Alamgiri, Calcutta Edition, Volume II, page 507).
14. It is laid down in the Kunyah: If the mutawalli appointed by the founder says 'I resign my mutawalliship' (literally I dismiss myself), this declaration has no effect (and he continues as mutawalli) unless the declaration is made in the presence of the founder or the Cadi, who would thereupon remove him (Fatawa Mahdiyah, a collection of decisions by the Grand Mufti of Egypt Sheikh al-Islam Muhammad al-Abbasi, A.D. 1883, Volume II, page 575; also Fatawa 'Alamgiri, Vol. II, page 509, 1. 6).
15. The view taken in these texts is substantially reproduced by modern text-writers. Baillie in his Digest of Mahomedan Law, Volume I, 1st Edition, page 594, 2nd Edition, page 604, observes that while a Superintendent, may at death commit his office to another in the same way as an executor may commit his to another, a Superintendent, while alive and in good health, cannot lawfully appoint another to act for him, unless the appointment of himself were in the nature of a general trust. Amir Ali in his Mahomedan Law, Volume I, page 355, observes that should a mutawalli in his lifetime and in health appoint another in his place, the appointment will not be lawful and valid, unless the mutawalli has obtained the tawliyat with that condition in a general manner. He then quotes a passage from the Raddal-Muhtar, Volume III, page 337, to explain the meaning of the term 'general.' The term signifies that the mutawalli at the time of his appointment was such as should receive the power of transferring the trust to another and substituting that other in his own place. It is worthy of note that the prohibition against the transfer of the trust applies to the appointment of a permanent and substantive successor who occupies the position and exercises the full powers of the mutawalli, in fact succeeds him in the office and not merely acts as his temporary substitute in his place. In other words, the renunciation by a mutawalli of his office is entirely distinct from his determination to act by a deputy. To the same effect is the statement by Sir Rowland Wilson in his Anglo-Mahomedan Law (Third Edition, Sections 328 and 329).
16. Tested in the light of these principles, what is the position of the parties in the case before us? Faizunnessa was in no sense a general trustee. She had no authority, express or implied, to modify in any way the terms of the trust-deed; not had she authority to renounce the office and appoint a successor. In 1877, however, she professed to act in this manner. She gave up the office of mutawalli and appointed Nawab Ahsanullah as her successor. The plaintiff, who, as one of the representatives of the founder, was entitled to claim the office of mutawalli, was alive at the time, and according to his deposition in the present case was then about 25 years old. He had full knowledge of the circumstance that Faizunnessa had renounced the office of mutawalli and that Nawab Ahsanulla had taken possession of the office and of the properties appertaining thereto. He was in fact a defendant in the suit commenced by his cousin, Wahiduddin, in 1880 against Faizunnessa and Nawab Ahsanullah for appointment as mutawalli and for recovery of the waqf properties. He deposed in favour of the then plaintiff and sided with him in that litigation which terminated against his cousin in 1883. It was obviously open to him to assert his claim to the office of mutawalli at that time, and he deliberately abstained with full knowledge of all the circumstances. His title to the office, therefore, if any, became barred by limitation under Article 120 of the Second Schedule of the Limitation Act. In support of this view, it is sufficient to refer to the decision of their Lordships of the Judicial Committee in Balwant Rao v. Puran Mal Chaube (1883) I.L.R. 6 All. I.L.R. 10 I.A. 90. The same view was taken in the cases of Jagannath Das v. Birbhadra Das (1892) I.L.R. 19 Calc. 776 and Kidambi Ragava Chariar v. Tiru Malai Asari Nallur Ragavachariar (1902) I.L.R. 26 Mad. 113. It is indisputable that a claim to office and to property appurtenant thereto may be barred by limitation. If the office is not hereditary, Article 120 is applicable as indicated in the cases just mentioned. If, on the other hand, the office is hereditary, Article 124 governs the matter: Nilakandan v. Padmandbha (1890) I.L.R. 14 Mad. 153, Alagirisami Naickar v. Sundareswara Ayyar (1898) I.L.R. 21 Mad. 278, Gnanasambanda Pandara Sannadhi v. Velu Pandaram (1899) I.L.R. 23 Mad. 271, Ramanathan Chetti v. Murugappa Chetti (1903) I.L.R. 27 Mad. 192 affirmed on appeal to the Judicial Committee (1906) I.L.R. 29 Mad. 283; L.R. 33 I.A. 139, and Lilabati Misrain v. Bishun Chobey (1907) 6 C.L.J. 621. It is clear, therefore, that the claim of the plaintiff to the office of mutawalli became barred by imitation upon the expiry of six years from the date of the towliatnamah of Faizunnessa, dated the 29th January 1877. Even if Article 124 or Article 144 were held applicable, the title must be taken to have been extinguished by limitation in 1889.
17. It was suggested, however, that it was competent to Faizunnessa to make any arrangement for the administration of the waqf property to continue during her lifetime, and that consequently time ought not to run against the plaintiff till her death. This argument is in our opinion unsound, for the authorities to which we have referred establish beyond dispute that it was not competent to her to resign the office of mutawalli and vest it in a stranger of her choice without the intervention of the Cadi or of a Judicial Officer of his status. But even if the argument is conceded to be sound, it is of no avail to the plaintiff, because in our opinion the evidence makes it clear that Faizunnessa died on the 3rd June 1886, as alleged by the defendant, and not on the 28th June 1897, as alleged by the plaintiff. The Subordinate Judge has failed to appreciate the evidence on the point and has disposed of the matter in a somewhat summary manner. The evidence adduced on the side of the plaintiff is untrustworthy, and the witnesses brought forward by him are men of no position and with no special means of knowledge. The plaintiff relies upon an entry in an almanac which he does not produce. He admits that he had attempted to prove the age of his cousin from an entry in an almanac in the previous litigation and was disbelieved. Abdus Sobhan, who deposes in favour of the plaintiff, does not speak from personal knowledge. Arabdi Sarkar makes contradictory statements, and his assertion in cross-examination that Faizunnessa died ten or twelve years after the death of her husband wholly contradicts the story of the plaintiff. Abdul Baset, who supports the plaintiff as to the time of death, contradicts him as to the presence of respectable people at the burial, not one of whom has been called to depose on the side of the plaintiff. Against this, we have a considerable body of oral evidence on the side of the defendant in support of his allegations. Kutubuddin, a relation of Faizunnessa, an old man of considerable respectability, is positive that she died in 1886. He is supported by Mahomed Ali through whom the burial expenses were paid by Ahmadullah, the naib mutawalli of the waqf, and also by Zamiruddin, a beneficiary under the towliatnamah. No serious attempt was made to cross-examine these witnesses. We are not unmindful that Nizamuddin and Abdul Majid make statements which go to support the allegation of the plaintiff, but their testimony was outbalanced by the entry in Exhibit J, the account book of Nawab Ahsanullah, in which an entry on the 3rd June 1886 was made for the funeral expenses of Faizunnessa. The book has been proved by Tarini Charan Das Gupta, the Chief Accountant of the Nawab. It is produced from proper custody, and an examination of its contents shows that it was kept in due course of business. We feel no doubt as to its genuineness, and it is not disputed that the entry in this book completely negatives the case of the plaintiff. Upon the whole evidence, then, the conclusion is irresistible that Faizunnessa died on the 3rd June 1886 and not the 28th June 1897. As Nawab Ahsanullah died on the 16th December 1901, it is obvious that the title of the plaintiff is barred by limitation, whether the six years or the twelve years rule be applied with effect from the 3rd June 1886.
18. It was faintly suggested as a last resource that time ought to run against the plaintiff from the 16th December 1901 when, upon the death of Nawab Ahsanullah, Nawab Salimullah came into possession of the office. It was contended that there is no privity between Nawab Salimullah and Nawab Ahsanullah in so far as the office of mutawalli is concerned, and it was further suggested that Nawab Ahsanullah might be deemed to have been properly appointed mutawalli, This position, however, is obviously untenable. The office was held by Nawab Ahsanullah adversely to every other possible claimant, admittedly for over six years, and, as we have seen, for over twelve years. Nawab Salimullah has now come into occupation not as a trespasser, but under paragraph 23 of the towliatnamah of Faizunnessa executed on the 29th January 1877. The plaintiff had taken no steps to challenge that deed till the 27th February 1905 when he commenced the present litigation. His claim to hold the office and to recover the properties appertaining thereto is clearly barred by limitation and cannot be successfully enforced. The second ground which relates to the waqf of Ayinuddin Hyder must consequently succeed.
19. We desire to add that we express no opinion as to the administration of the waqf properties by the first defendant as mutawalli. Allegations have been made of an adverse character, but of a more or less vague description. If any relief is sought by the beneficiaries on the ground of maladministration, it can be obtained only in an appropriate proceeding specially framed for the purpose. The only question which is determined in the present litigation is that the plaintiff is not entitled, as a matter of right, to claim the office of mutawalli and to eject the defendant as a trespasser.
20. The result, therefore, is that this appeal must be allowed, the decree of the Subordinate Judge discharged, and the suit dismissed with costs throughout payable by the plaintiff to the first and fifth contending defendants.