1. The subject-matter of the litigation, which has, culminated in this appeal, consists of immovable: properties comprised in two, waqfs, one created by; Ainuddin 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: muttualli 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, mutwalli 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, mutwalli. 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 geneological table:
Khondkar Fazuddin|--------------------------------------------| |Moinuddin Safdar Ainuddin Hyder| died 25th May 1868-------------------- || | |Nasiruddin Hyder Mnziraddin Omar widow(died July 1865) | Faizunnessa Bibi| | died 28th June 1897| | (according to plaintiff)-------------------------- | 3rd June 1886| | | | (according to defendant.) Mohammad Tahera Bibi Khalima Wahiduddin Mustafa (defendant 4) Bibi (defendant 2)(plaintiff). (defendant 3)
The fifth defendant is the naib mutwalli 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 fifth defendant the Deputy Superintendent of the waqf. They denied the title of the plaintiff to hold the office of mutawlli 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 Muhammadan Law. This, however, has not been investigated for the obviously sufficient reason that as both parties lay claim to the office of mutwalli, 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 mutwalli 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 mutwalli of all the disputed properties except one, and is authorised 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 mtdwalli 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 Ainuddin Hyder on the 22nd April 1864 is concerned, the title, if any, of the plaintiff to hold the office of mutwalli has been extinguished, by the adverse possession of that office by Nawab Ashanulla 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.
2. In support of the first ground urged on behalf of the appellants, our attention has been invited to the deed of waqf, called the towliatnama, 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 Ainuddin Hyder on the 22nd April 1864; 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 Ahsanulla as the mutwalli 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 Mohammad Mustafa and Wahiduddin the sons of my deceased husband's brother's son are living, they denied the validity of the waqfnama, intending to devide the waqf properties among themselves as by a right of inheritance; they entered into various litigations with me for 7 or 8 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 effect, 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 mutwallis'. In a later passage in the same deed, the founder repeated her objection to these persons and directed that 'though Nawab Ashanulla might when old appoint a fit and proper person as a successor in the office, Mohammad Mustafa and Wahiduddin who had committed waste were not to be appointed.' It is mainfest from these provisions in the tuwliatnama that the founder deliberately directed that the present plaintiff was not on any account to hold the office of mutwalli 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 mutwalli 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 mainfest 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 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 Muhammadan jurisprudence.
If the founder of the waqf stipulates in the deed of waqf that such of his descendants as become converted from the sect of Ithhat into that of Itizal 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 Itizal) and stipulates the opposite of the stipulation stated above, his stipulation is acted upon (Isaf of Turabulusi, A.D. 1516, Cairo Edition, p. 89).Text II.
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 Lawgiver,' that is, with respect to the bindingness to act upon it, and the implication and the indication, as we have described in the Commentaiy on the Kant; except in a few cases, namely (1) where the founder stipulates that the mutwalli cannot be removed by the Gadi, 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 mutwalli) can disregard the stipulation.
(3) Where it stipulates that the Qoran 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 mutwalli 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 mutwalli 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 when it is insufficient.
(7) Where the waqf has prohibited Istiddal, i.e., exchange of waqf property for another property, the Cadi can have recourse to Istiddal when it is more beneficial; Al Ashbah wal Nazair (Analogies and Precedents) by the celebrated Egyptian Jurist Ibn Nujaym author of Bhor-al-raig A. D. 1562. This passage is referred to in the Dural Mukatear, Constantinople Edition, Vol. III page 601 and is quoted in extenso by the Raddul Mahtar, Constantinople Edition, Vol. III, page 601).
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 appellant sthat the plaintiff-respondent ought not to be appointed to hold the office of mutwalli of the waqf created by Faizunnessa Bibi in 1877. The first ground taken on behalf of the appellants must consequently prevail.
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 Ainuddin Hyder in 1864. The waqfnama shows that the founder appointed himself the first mutwalli 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 mutwalli of the same and I appoint Moulvi Nasiruddin Hyder my brother's son as the principal mutwalli and Munshi Ahmadullah and Moulvi Buxali as the naib mutwallis to act after mo.
(b) The said mutwalli (that is Nasiraddin 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 mutwalli's duties, as mutwalli in his own place.
(c) I shall remain the mutmalli, and also the possession and enjoyment of the endowed properties as waqf properties, shall rest with me, and after that with my wife Musammat Faizunnessa Bibi and under her orders with, the principal mutwalli aforesaid and the naib mutwallis abovenamed.
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 mutwalli died in 1865. Clauses (a) and (b) set out alone, therefore, never came into operation and although Ainuddin lived for three years longer, he did not in this respect alter or supplement the terms of the original waqfnama. The consequence was that upon his death in 1868, his widow Faizunnessa obtained certificate, and undertook the performance of the duties of mutwalli of the waqf created by her husband. She continued to do so up to the 29th January 1877 when she executed the towliatnama 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 waqfnama of 1864 by Ainuddin 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 mutoalli, of the appointment by her of Nawab Ahsanulla 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 Nasiruddin in the life-time of her husband had rendered inoperative his proposed appointment as mutwalli, that her husband, to the time of his death, acted as mutwalli, and that since his death, she herself had discharged the duties of that office. She then proceeded to appoint voluntarily Nawab Ahsan-ullah as the mutwalli and also to confirm the appointments of the naib-mutwallis. 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 mutwalli on the 14th April 1877. Paragraph 23 of the deed finally provided that when the Nawab reached old age, he would be entitled of his own choice to appoint a suitable person as mutwalli, bat that Muhammad Mustafa and Wahiduddin were not to he appointed on any account. The deed further provided that in the event of failure on the part of Nawab Ahsanulla to appoint his successor, the person who would take his place (in the family) would become as the mutwalli of the waqf properties. The Nawab, as we have already stated, entered upon the execution of the duties of his office as a mutwalli, 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 Ahsanulla in 1901, his son Nawab Salimullah took possession of the waqf properties as mutwalli 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.
We may assume for the purposes of the present discussion that although Faizunnessa was not expressly appointed as mutwalli, the waqfnama of 1864 clearly intended to give her the same right of superintendence after the death of her husband as the latter had retained during his life-time. We assume, therefore, that Faizunnessa lawfully took possession of the waqf properties as mutwalli 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 towliatnama of the 29th January 1877 An ex-animation of the following texts, translated from works of recognised authority on Muhammadan Law, tend to show that her act in both these respects was entirely unauthorised, sanctioned neither by Muhammadan Law nor by the terms of the original endowment.
A man in good health made waqf for the benefit of a particular mosque having a mutwalli. The mutwalli died after this and the people who frequented the mosque assembled and appointed a man as mutwalli with the sanction of the Cadi. This mutwalli 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 mutwalli: the most correct view is that such appointment is not valid. The power of making the appointment of a mutwilli belongs to the Cadi [Fatawai Qadi Khan A. D, 1196), Calcutta Edition 1835 Volume IV page 216.
If the mutwalli of a waqf suffering from illness, which culminates in death, (maraz-ul-onowt, mortal-illness?) delegates the affairs of the waqf to another person it is valid, because the mutwalli is in the position of an executor (wasi) and the executor has the power of appointing another as his executor (Fatwui Qadi Khan Volume IV page 219.)
If the appropriator dies without appointing a mutwalli, the Cadi should appoint the mutwalli. 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 past. If after the appointment of the stranger, someone from amongst the descendants of the appropriator is found to be qualified for the appointment, the mutwalliship should revert to him just as in the case of succession (Isaf by Tarabulusi, A. D. 1516, Cairo Edition page 42).
If the mutwalli dies and the appropriator survives him, the power of appointing another mutwalli belongs to him and not to the Cadi. But if the appropriator does not survive him, then the executor (wasi) 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 the Fatawa Sugrah. In the Asl (Imam Muhammad) it is laid down that the Hakim should not appoint a stranger as murwalli so long as there could be found amongst the members of the appropriator's family any person fit for the same. If no one qualified could be found amongst them, and a stranger is appointed mutwalli, and then afterwards some one amongst them is found to be qualified, the mutwalliship shall revert from him '(the stranger) to the member of the founder's family. Thus it is laid down in the Wajis (Fatawa Alamgir, Calcutta Edition, Volume II, page 507).
It is laid down in Kunyah : If the mutwalli appointed by the founder says I resign my mutwalliship '(literally I dismiss myself), this declaration has no effect, (and he continues as mutwalli) unless the declaration is made in the presence of the founder or the Cadi who would thereupon remove him (Fatawa Mohdiyah, a collection of decisions by the Grand Mufti of Egypt, Sheikh-ul-Islam Mohammad Ali Abbasi A. D. 1883, Volume II, page 575).
3. The view taken in these texts is substantially reproduced by modern text writers. Baillie in his Digest of Muhammadan Law, Volume I, 1st Edition, p. 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 Muhammadan Law, Volume I, page 355, observes that should a mutwalli in his life-time and in health appoint another in his place, the appointment will not be lawfull and valid unless the mutwalli has obtained the towliat with that condition in a general manner. He then quotes a passage from the Raddul Mukhtar, Volume III, page 337 to explain the meaning of the term ' general '. The term signifies that the mutwalli at the time of his appointment as such 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 mutwalli, 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 mutwalli 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-Muhammadan Law (third Edition, Sections 328 and 329).
4. 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, nor 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 mutwalli and appointed Nawab Ashanulla as her successor. The plaintiff, who as one of the representatives of the founder, was entitled to claim the office of mutwalli, 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 mutwalli 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 Ahsanulla for appointment as mutwalli 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 mutwalli 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. Purn Mal 10 I.A. 90 : 6 A. 1. The same view was taken in the cases of Jag an Nath Das v. Birbhadra Das 19 C. 776 and Kidambi v. Ragavachariar Tiru Malai Asari Nallur Ragavachariar 26 M. 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. Nilokandan v. Padma nabha 14 M. 153; Alagiri Sami Naickar v. Sundarestoara Ayar 21 M. 278; Gnana Sambanda Pandora Sannadhi v. Velu Pandaran 23 M. 271; Ramanathan Chetty v. Murugappa Chetty 27 M. 192 affirmed on appeal to the Judicial Committee Ramanathan Chetty v. Murugappa Chetty 29 M. 283 at p. 288 : 10 C.W.N. 825 8 Bom. L.R. 498 : 16 M.L.J. 265 : 4 C.L.J. 189 : 3 A.L. 707; 33 I.A. 139 and Lilabati Misrain v. Bishun Choby 6 C.L.J. 621. It is lear, therefore, that the claim of the plaintiff to the office of mutwalli became barred by limitation upon the expiry of 6 years from the date of the towliatnama 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.
5. 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 mutwalli 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 6f 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 disbelived. Ablus 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 10 or 12 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 Mohammad Ali through whom the burial, expenses were paid by Ahmadullah, the naib mutwalli of the waqf and also by Zamiruddin a beneficiary under the towliatnama. 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 is out balanced by the entry in Ex. J. the Account-book of Nawab Ashanullah in which an entry on the 3rd Jane 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 on the 28th June 1897. As Nawab Ashanulla died on the 16th December 1901 it is obvious that the title of the plaintiff is barred by limitation, whether the 6 years or the 12 years rule be applied with effect from the 3rd June 1886.
6. 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 Ashanullah, Nawab Salimullah came into possession of the office. It was contended that there is no privity between Nawab Salimullah and Nawab Ashanullah in so far as the office of mutwalli is concerned and it was further suggested that Nawab Ashanullah might be deemed to have been properly appointed mutwalli. This position, however, is obviously untenable. The office was held by Nawab Ashanullah adversely to every other possible claimant, admittedly for over 6 years, and as we have seen, for over 12 years. Nawab Salimullah has now come into occupation not as a trespasser but under paragraph 23 of the towliatnama of Faizunnessa executed on the 29th January 1877. The plaintiff has 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 Ainuddin Hyder must consequently succeed.
7. We desire to add that we express no opinion as to the administration of the waqf properties by the first defendant as mutwalli. Allegations have been made of an adverse character but of a more or loss 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 mutwalli and to eject the defendant as a trespasser. 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.