1. The important question that arises in this appeal is whether a wakf of the ward's property created by a guardian appointed under the Guardians and Wards Act with the sanction given by Court under Section 29 of that Act, is valid.
2. It appears that Mohammad Moshin, the respondent in this appeal, was born sometime in 1916. He inherited certain properties from his mother who died not very long after his birth. On 25-2-1925 his father Syed Hossain Ali, was appointed the guardian of his person and properties under the Guardians and Wards Act by the District Judge at Alipur. On 9-7-1932 Hossain Ali as such guardian obtained an order from that Court under Section 29 of that Act permitting him to create a wakf alal aulad of Moshin's properties. Pursuant to that permission, on 30-10-1932 Hossain Ali actually executed a deed of wakf whereby he also made a wakf of some of his own properties. The wakf was thereafter duly enrolled as a wakf alal aulad by the Commissioner of Wakfs, under powers contained in the Bengal Wakf Act, 1934. Under that Act this amounted to a decision that the wakf was valid and the decision is final until set aside by a Court.
The Act gave the Commissioner certain powers of superintendence over a wakf and a power to the Board of Wakfs to appoint Official Mutawalll appointed under the Act, to be the mutawalli of a wakf. Hossain Ali died on or about 30-8-1937. Under the Deed of Wakf, Moshin was to be the mutawalli after his father's death but he never in fact acted as the mutawalli. Soon after Hosain Ali's death, the Official Mutawalli was appointed the mutawalli of the wakf and he has since been acting as such excepting for a very short period in 1940. On 31-1-1941, Abdul Wahab, Moshin's sister's husband was appointed the manager of his estate and also his guardian, under the Lunacy Act, Moshin having been then found to be an Insane person.
3. On 6-9-1945 Moshin through Abdul Wahab as his next friend, filed this suit against the Commissioner for a declaration that the deed of wakf was void and inoperative, for possession of his properties covered by that deed, for accounts and for other connected reliefs. In the plaint Moshin was described as a lunatic but it was not stated when he became one. A point was taken on behalf, of the Commissioner that the plaint was barred by limitation on the face of it. On 7-4-1948 an order was made amending the plaint by inserting a statement that Moshin had become a lunatic before he attained majority and has since been insane. Later on the plaint was again amended by adding the Official Mutawalli as a defendant to the suit.
4. The suit came up for hearing before S. R. Das Gupta, J. and was decreed. From that judgment the Commissioner and the Official Mutawalli have appealed. Abdul Wahab, the next friend, died after the filing of the appeal & an order was made on 31-8-1951 appointing the Official Trustee, to whom the management of Moshin's properties had been entrusted by S.R. Das Gupta, J., guardian in Abdul Wahab's place. The records of the appeal had not however bean amended and an order was made by us on 23-2-53 directing such amendment.
5. The question to be decided, is whether thewakf in so far as it concerned Moshin's properties,was validly created. It has to be remembered thatthe wakf was created under the authority of anorder made under Section 29 of the Guardians andWards Act. That section is in these terms:
'Where a person other than a Collector, or aguardian appointed by will or other instrument,has been appointed or declared by the Court tobe guardian of the property of a ward, he shallnot, without the previous permission of theCourt,
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the im-moveable property of his ward, or
(b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.'
Section 30 of the Act provides,
'A disposal of immoveable property by a guardian in contravention of either of the two last foregoing sections is voidable at the instance of any other person affected thereby.'
6. It follows that if the order sanctioning the creation of the 'wakf was invalid, the wakf must have been created in contravention of Section 29 and is at least voidable. The respondent's contention therefore is that the order sanctioning the creation of the wakf was without jurisdiction and void. The appellant's answer is that the validity of the sanction cannot be questioned in this suit and in any event the sanction is perfectly good.
7. The appellant's first contention is based on Section 48 of the Act, That section states as follows :
'Save as provided by the last foregoing section and by Section 622 of the Code of Civil Procedure, an order made under this Act shall be final and shall not be liable to be contested by suit or otherwise.'
Section 47 of the Act provides for appeals and Section 622 of the Code, which is Section 115 of the present Code, deals with revisions. It is said that the order sanctioning the creation of the wakf which was made under Section 29 of the Act, cannot be questioned in this suit because of Section 48.
8. It appears to have been conceded before S. R. Das Gupta, J., that Section 48 did not make the sanction given under Section 29 conclusive and did not prevent the Court from enquiring in this suit, whether the transaction sanctioned was for the benefit of the minor and thereupon, to pronounce on the Validity of the transaction. Proceeding on the basis of this concession, S. R. Das Gupta, J., foundas a fact that the wakf was not for the benefit of the minor Moshin and he therefore declared it to be void. The concession made before S. R. Das Gupta, J., was not repeated before us. It seems to me that the concession had been wrongly made. The whole object of Section 48 is to prevent the propriety of an order which could be made under the Act from being challenged in a collateral proceeding and to give it a finality. The reasons for this are obvious. Without such finality no one would be prepared to pay a fair price or Indeedto deal with the minor's properties and the result would be that the minor's interests would suffer.
To pronounce upon an order made under Section 39 on the ground that it did not enure for the benefit of the minor is to challenge its propriety and that cannot, therefore, be done in a collateral proceeding. Otherwise, Section 48 would be rendered nugatory and the principle behind it frustrated. So it was said in -- 'Raman Chettiar v. Tirugnanasambandam pillai', AIR 1927 Mad 233 at p. 235 (A), where a mortgage of the minor's property sanctioned under Section 29 was challenged in an independent suit,
'The very object of the sections to which I have referred, is to safeguard the interests of the minor. A transaction is not authorised unless the Court comes to the conclusion that it is fat his benefit. From the point of view of the guardian again, if he honestly and frankly tells the Court the circumstances which has led to his application, he will have performed his duty and as he does not trust to his own judgment but to the judgment of the Court, he can rely upon the sanction in any proceedings that may be taken in some future time against him. From the point of view of the purchaser, his title to the property stands upon a better footing than if there had been no sanction, as 'the question of the beneficial nature of the transaction cannot be reopened.'
This case expressly dissented from the earlier Madras case of -- 'Venkatasami v. Viranna', AIR 1922 Mad 135 (B), where it had been held that the only effect of sanction under Section 29 was to shift the onus of proof and that, whereas, ordinarily it was for the alienee to show that the transaction was binding, the burden was, where the sanction had been obtained, upon the minor to show that the transaction was not binding. It may be presumed that the concession made in the trial Court was based on the earlier Madras case, for the argument was put precisely in the way stated above. Obviously, the later Madras casa had not been, noticed. The view expressed in the later Madras case is in my view the correct one and it was also accepted as such in -- 'Balaji Basudev v. Sadashiv Kasinath' : AIR1936Bom389 . It is, therefore, clear that it is not open to the Court in this suit to go into the question whether the wakf was for the benefit of the minor and to declare it invalid upon a finding that it was not for his benefit.
9. This, however, does not remove all the difficulties from the way of the appellants. It still seems to me that their contention that Section 48 bars the present suit is not well founded. In my view, that section contemplates an order that could be made under the Act. If an order could not be made under the Act, it would not be an order under the Act; it would only be an order purported to be made under the Act. It would then really be a nullity. In such a case Section 48 cannot apply, for it applies only to orders made under the Act. In such a case, therefore, the order could be challenged in a suit brought for the purpose. If this were not so, the result would be absurd. Suppose under orders of the Court, the guardian sold certain properties believed to belong to the minor. Is it to be said that a person who is the real owner of the properties, is to be debarred from filing a suit to recover them and for having the Court's order declared a nullity?
That of course cannot be, for the owner could, not have appeared in the guardianship proceedings and has no other remedy but filing a suit, for recovering properties that lawfully belong to him. The order, in the case assumed, could only have been made on the basis that the properties belonged to the minor, for the Court had no jurisdiction under Section 29 to direct the sale of properties not belonging to the minor. If it turns out that the properties did not belong to the minor, the basis of the order goes and it becomes a nullity and then Section 48 cannot be a bar to a suit to have it declared a nullity. As I have already said, Section 48 is designed only to prevent the propriety of an order made under the Act from beingenquired into and pronounced upon in a collateral proceeding. It was not intended to prevent an order made without jurisdiction, though purported to be under the Act, from being challenged hi such proceedings. The contention of the respondent in this case is precisely that the order sanctioning the creation of the wakf was without jurisdiction. Therefore Section 48 is no bar to the present suit.
10. In support of his contention, the respondent said that the Court had no jurisdiction to sanction the creation of the wakf under Section 29, for it could do so only if creation of a wakf was 'transfer of property and that wakf was, under the Muhammadan law, never a 'transfer', but only a 'detention' in the ownership of God. The appellants on the other hand contended that wakf was a transfer of property to 'God'. S. R. Das Gupta, J-accepted the contention of the appellants. It seems to me unnecessary to go into this question, for even if it is a transfer, there is another reason why the creation of a wakf cannot be sanctioned under Section 29. I like to put my decision on this ground. I will proceed on the assumption that a wakf involves a transfer.
11. Section 29 no doubt gives power to a Court to make an order authorising the guardian to transfer the ward's properties. Such an authority is required, as the guardian, not being the owner of the ward's properties, cannot transfer them without it. Of course whether the authority will be given in a particular case will depend on the Court's view of the resulting benefit to the minor. That however is another matter. What I wish, to say now is that Section 29 does no more than empower the Court to make an order authorising the guardian to transfer the properties of the ward. Such transfer, however, must be according to the law applicable to it. Section 29 does not empower the Court to make an order authorising the transfer of property inconsistent with law. It is not intended to create a new form of transfer, nor to interfere with any principle of law. That would be outside the scope of the Act. This seems to me to be quite, clear, but I would like to give an illustration or two.
Besides contemplating transfer by other methods within which the creation of the wakf is sought to be included, Section 29 specifically mentions transfers by way of sale and gift. Sales are governed by the Transfer of Property Act. Is it to be said that the Court can under Section 29 sanction the sale of the ward's properties by the guardian in a manner prohibited by the Transfer of Property Act? Thus, can the Court sanction the sale of properties in a manner violating the law of perpetuity or subject to the contention that the purchaser shall never resell the properties? If it could do that, the result would certainly be astounding. I find it impossible to hold that Section 29 was intended to give such a power.
Now take the case of gifts. By reason of Section 129 of the Transfer of Property Act, gifts by Muham-madans are governed by the Muhammadan law. Under that law no gift can be made by a Muhammadan of an undivided share in property capable of division. It would follow that for the same reason the Court cannot in the case of a Muhammadan, authorise under Section 29 the gift by a guardian of such an undivided share. In the cases supposed, if the Court were to make the orders sanctioning the transfers, the orders would be without jurisdiction and void. I therefore come to the conclusion that the transfers sanctioned by Section 29 must be legally permissible transfers.
12. I now come to a transfer in the form of a wakf Such a transfer must, like all other transfers, be according to the law applicable. Wakf, of course, is a purely Muhammadan institution and concept. Its creation and incidents are governed by the Muhammadan law. The Court therefore cannot sanction the creation of a wakf contrary to the Muhammadan law.
13. Now it seems to me that the creation of a wakf of the minor's properties by the guardian is against the principles of the Muhammadan law, for under that law no one but the owner of the] property can make a wakf of it--see Mulla'sl Mahomedan Law (11th Edn.), p. 149. It would, therefore, appear that the Court cannot sanction the creation of a wakf of the minor's properties by the guardian. It would follow that the order made by the District Judge in this case sanctioning the creation of a wakf of Moshin's properties by Hossain Ali was without jurisdiction.
14. S. R. Das Gupta, J., dealt with this matter in this way:
'The person who has been appointed guardian under the Guardians and Wards Act derives bis authority from the said Act and if there is any provision in the said Act authorising him to do a particular thing, he would be entitled to do it irrespective of the fact that under the personal law to which the minor and/or the guardian may belong, he is not permitted to do such an act.'
With great respect to the learned Judge, I am unable to accept this, view. It seems to me not enough to say that the guardian derives his authority from the Act. So he does, but only in cases where the authority could be given under the Act. Where the authority could not be given, the guardian derives none, though an order might have been made purporting to give him the authority. The view taken by S. R. Das Gupta, J., would have been unexceptionable if it could be said that all kinds of authority to transfer could be given under the Act. For reasons previously discussed I am unable to say that. Indeed it may be that the learned Judge himself did not wish to say that, for he said, 'if there is any provision in the said Act authorising him to do a particular thing.' The learned Judge however did not answer the question that he thus raised.
15. It is also said that, subject to the provisions of the Act, a guardian has all the powers with regard to the minor's properties which the minor would have had if he was a major. Thus, it is said, though a minor cannot sell his property, his guardian can do so after having taken the Court's permission under Section 29 of the Act. It is then said that, likewise, though the minor cannot create a wakf, for the Muhammadan Law prohibits creation of a wakf by a minor and under the Transfer of Property Act a minor cannot transfer property, his guardian can do so with the Court's sanction. This argument also is, in my view, unsound. It arises from a misconception of the nature of a transfer sanctioned under Section 29.
Let me consider the case of a sale first. It is to my mind quite clear that when a guardian sells his ward's property by virtue of an order made under Section 29, it is a sale by him and not by the ward. Section 29 does not say that a sale sanctioned under it, is by the minor acting through the guardian. In such a case it is the guardian who is selling property not belonging to him but to the minor. Such a sale is permitted by Section 7 of the Transfer of Property Act which says that every person authorised to dispose of transferable property not his own, is competent to transfer such property. A guardian selling by virtue of anorder made under Section 29 is such a person: See Mulla's Transfer of Property Act (3rd Edn.), p. 79. It is therefore not right to say that, in making such a sale the guardian is exercising the powers which the minor would have had if he was a major. He is, on the contrary, acting under the authority conferred upon him by Court to dispose of the minor's property.
16. In the case of a sale therefore, which is governed by the Transfer of Property Act, it is because of Section 7 of that Act that the guardian authorised to sell under Section 29 of the Guardians and Wards Act, can effect a sale. Section 7 of the Transfer of Property Act however does not affect any rule of Muhammadan Law: See Section 2 of the Transfer of Property Act. So it does not operate to permit a person not the owner of property to make a wakf of it. Now suppose the Court sanctions the creation by the guardian of a wakf of the ward's properties. In creating the wakf the guardian gets no assistance from Section 7 of the Transfer of Property Act. He has to do it if at all, under the Muhammadan Law. I have already said that the Muhammadan Law does not permit him to do it, because he is not the owner. He cannot, therefore, make a wakf at all. It comes then to this that the Court has made an order to do a thing which cannot be done at all. It has of course no jurisdiction to make such an order and the order, therefore, is a nullity. So it must be held in this case that the order of 9-7-1932 permitting Hossain Ali to create the wakf is a nullity. Section 48 of the Guardians and Wards Act is no bar to coming to that conclusion for reasons already stated. This also settles the appellants' other contention that the order had been properly made.
17. It is lastly contended that quite apart from the order, Hossain Ali, as the guardian under the Muhammadan Law of his son's properties, was competent to create the wakf. I am unable to accept this view. No authority can be found either in the texts or in decided cases to support it. On the contrary, Abdur Rahim is of the opinion that a guardian under the Muhammadan law of a minor is not entitled to bind the ward by any act which is absolutely injurious to the latter's interest and so he cannot make a gift or a wakf of the minor's property: Abdur Rahim's Muhammadan Law, p. 345. On behalf of the appellants it was contended that Abdur Rahim's view was not supported by any authority and that in this case the wakf was for the benefit of the minor. As to authority, I have already said, there is none on either side. It seems to me that a wakf cannot be for the benefit of any owner, for he is deprived of his dominion over the property. The principle underlying the powers of a legal guardian to transfer the ward's properties is their preservation and perhaps augmentation: See -- 'Imambundi v. Mut-saddi', AIR 1918 PC 11 at p. 16 (D).
It cannot be said that dedicating a property to wakf is preserving it or augmenting it, for the owner. But quite apart from this, there are other reasons which would prevent a guardian under the Muhammadan Law from making a wakf of the ward's properties. It will be remembered that the Muhammadan Law says that a minor cannot create a wakf. If the creation of the wakf by the guardian is really an act of the minor through the guardian, then to uphold it would amount to allow-ing something being done indirectly which could not be done directly. This would obviously be wrong. It has been said in -- 'Imambandi's case (D) (Supra) at p. 19', the idea of agency in relation to an infant is as foreign to Muhammadan Law as to every other system. If, on the other hand, the creation of the wakf is by the guardian himself, though of the ward's properties, that would be against the other principle of Muhammadan Law already mentioned that none but the owner of property can make a wakf of it. Looking at from any point of view therefore, it cannot be said the guardian under the Muhammadan Law, has power to make a wakf of the ward's properties.
18. In the result it must be held that the wakt is void and his properties purported to be made a wakf still remains Moshin's.
19. Two other objections to the suit, of a somewhat technical nature, remain to be disposed of. One is that the suit is barred by limitation. This involves two questions. First, it was contended that the order of 7-4-1948 amending the plaint was illegal. It was said that without the amendment the plaint would be barred by limitation on the face of it. Be that so. But how does that make the order for amendment illegal? It was said that the amendment took away a right vested in the appellants at the date of the amendment, namely, a right to have the suit dismissed as it was barred by limitation. This argument is apparently sought to be based on the well known English case of --'Weldon v. Neale', (1880) 19 QBD 394 (E). I do not think that the case applies. It dealt with introduction by amendment of new claims which were already barred. That is not the case here.
Here the amendment did not affect the nature or scope of the suit but preserved these intact. It only inserted a statement, omitted by blunder, which showed that the suit as framed originally was not barred by limitation. The position may be compared with those cases where grounds of exemption from limitation are allowed to be brought in by amendment:--'Gunnaji v. Makanji', 34 Bom 250 (F). If amendment could be allowed in these cases it may be equally allowed in a case like that in hand. I do not see that is a vested right to have a suit already filed, dismissed. On that basis amendments could be rarely allowed for amendments are generally sought when without them the suit might fail. In my view the order for amendment in this case was properly made.
20. The other question on the point of limitation involves two points, namely, whether Moshin became insane before he attained majority and did he continue to be insane till the institution of the suit? These are pure questions of fact. S. R. Das Gupta J. found them in favour of the respondent. I see no reason to come to a different finding. The only witnesses on the point were those called by the respondent. It may be that the evidence of these witnesses was open to criticism but it was not such as would render it liable to be rejected altogether. Furthermore, on a question of fact, the decision of the learned Judge who heard the witnesses cannot be interfered with, without cogent reasons and none exist in this case.
21. The last objection to the suit is that it was bad for non-joinder of necessary parties. It was said that the Moslem public and the Head Maulavi and Head Master of the Calcutta Madrassah who had been given benefits under the wakf were necessary parties and the suit should, therefore, have been brought under Order 1, Rule 8 of the Code of Civil Procedure. S. R. Das Gupta, J. rejected this contention, holding that the Commissioner and the Official Mutawalli fully represented the wakf estate. With this view I agree. Section 71 of the Bengal Wakf Act gives the Commissioner the right to intervene in any suit regarding a wakf and toconduct the suit or the defence on behalf of the wakf. It makes no difference that in the present case, the Commissioner did not have to intervene but was actually made a party. That is a matter of mere form. So far as the Official Mutawalli is concerned, it was held in 'The Mosque' known, as -- 'Masjid Sahid Ganj v. Shiromoni Gurudwara Prabandak Committee, Amritsar' , that a decree obtained against a muta-walli of a mosque is binding on principles of res judicata on persons entitled to worship at the mosque. This could only be on the basis that the Mutawalli represents the wakf estate. It may also be noted that the Head Maulavi and the Head Master have no present interest under the wakf.
22. In the result this appeal must fall and is dismissed with costs. The costs of the Commissioner of Wakfs will come out of the wakf estate created out of the properties of Hossain All.
23. I agree.