1. One Khedu Jamadar had in his lifetime built and consecrated a mosque at Tiljala, in the suburbs of Calcutta, the place where he resided. The mosque was originally a tiled hut, but subsequently he made it brick-built. He made a will in 1867 and died in 1871, leaving him surviving his first wife Dulera Bibi and a daughter by her named Alijan, and a second wife Idun Bibi whom be had married as a widow, and by the latter a son named Didarbux. Idun Bibi had a daughter named Raju Bibi by her first husband. By his will he bequeathed a ten annas share of his properties to his first wife Dulera Bibi and the remaining six annas thereof to his second wife Idun Bibi and his son Didarbux. On Khedu Jamadar's death the two widows fell out, but the dispute was eventually settled by a sort of a family arrangement arrived at with the help of some arbitrators, and this arrangement was embodied in and carried out by two documents executed and registered in 1872. By this arrangement Idun Bibi and her son got in her six annas share the mosque at Tiljala and the lands adjoining, and two items of properties at Salkia. During her life Idun Bibi acquired certain properties and eventually, on 23rd June 1884, executed a wakfnama and had it registered in respect of nine items of properties including the properties she had got under the arrangement aforesaid. Some out of these properties are included in this suit in two schedules, Schedule A being about 10 cottahs of land in Tiljala and Schedule B consisting of 5 plots of land in Salkia.
2 The plaintiffs' case is that Idun Bibi acted as mutwalli in, accordance with the wakfnama till her death in 1889, that after her death her daughter's, that is Raju Bibi's, son Alum succeeded her as mutwalli and acted as such till his death, which took place in 1894, that Haji Alum left a widow Samiran Bibi and four sons Nabibox, Hayatubox, Rahimbox and Kaderbox, that one Dina Nath Sanyal prevailed upon these persons to execute two mortgages in his favour, in respect of plot 5 and plots 1 and 4 of Schedule B for Rs. 700 and Rs. 800 on 7th August 1896 and 8th January 1897 respectively, describing the said properties as secular properties, that the said Dina Nath Sanyal then caused a mortgage to be executed by those persons on 5th August 1897 in favour of one Nannilal Agarwalla in respect of the properties in Schedules A and B for Rs. 6,000 describing them as secular properties, and thereafter on 23rd August 1897 got them to sell the said properties to Ghashi Bibi, mother of Nannilal Agrani, in satisfaction of the said mortgage and for further consideration of Rs. 2,000. The plaintiff's case further is that Samiran Bibi, Nahibox and Rahimbox having died, plaintiff 1 Hayatubox and the pro forma defendant 20 Kaderbox remained to perform the duties of mutwalli. But inasmuch as both of them had to remain continually absent from India on service since 1909, and Kaderbox expressed his unwillingness to act as mutwalli, plaintiff 2 appointed Kassoo Jamadar at mutwalli on 18th July 1919. The plaintiffs' case further is that plaintiff 2, since his appointment as mutwalli, attempted to take possession of the properties in suit which are all wakf properties but was resisted by the defendants. It is also said that plaintiff 2, with a view to re-cover the properties, gave a lease to plaintiff 3 for a period of 99 years on receipt of premium of Rs. 12,000. The suit was instituted on 22nd December 1921 with prayers for a declaration that the properties appertain to the wakf of Idun Bibi, for recovery of possession and also for mesne profits.
3. Besides the pro forma defendant 20 Kaderbox, to whom reference has already been made, there were 19 principal defendants. Of these Nos. 1 to 8 were the Sanyals being the representatives of Dina Nath Sanyal whose name has appeared before, Nos. 9 to 11 (of whom No. 10 Nannilal Agrani having died, his name was struck out) are the representatives of Ghashi Bibi who has also been referred to above. Nos. 12 and 13 are subsequent transferees of plots 1 and 2, Schedule B. No. 14 is the subsequent transferee of plot 3, Schedule B and Nos. 15 to 19 claim to be the present owners of plots 4 and 5, Schedule B.
4. The Subordinate Judge held that plaintiff 1 and the pro forma defendant 20 are entitled to a declaration that the properties in suit, together with other properties mentioned in Idun Bibi's wakfnama are wakf properties only to the extent that there was thereon a sharge of Rs. 348 per year for the upkeep and maintenance of the mosque. He held however that except as regards the properties mentioned in Schedule A the suit for possession was barred. He accordingly made a decree declaring title in favour of plaintiff I and defendant 20 as mutwalli in re3pect of Idun Bibi's wakf and confirming their possession in respect of the property in Schedule A and dismissing the rest of the suit, i.e., for recovery of possession of the property in Schedule B.
5. From this decree the plaintiffs have preferred the mai a appeal, appeal from original decree No. 190 of 1927. To this appeal two sets of cross-objections have been filed, one by respondents 12 and 13 (the holders of plots, 1, 2 and 3, Schedule B), and the other by respondents 14 to 18 (the holders of plots 4 and 5, Schedule B.).
6. The first question that arises for consideration is the extent and character of the wakf, it being urged on the side of the appellants that it constitutes an absolute dedication of the properties to the Almighty, and on behalf of the respondents that it is altogether illusory and was never acted upon so that the properties covered by it remained as secular as ever. The Subordinate Judge, as already observed, has adopted a sort of middle course and has bald that on looking into the terms of the wakfnama it is pretty clear that it was never meant to be an absolute wakf in the true sense of the term, but that the wakf only gave a specific sum for the benefit of the mosque. This specific sum he found to be Rs. 348 a year, and in his opinion the residue remained undisposed of. Now by this document the wakif declared that he made the wakf in the name of God 'in favour of' the three-domed mosque established by herself and her husband. She further declared that from the date of its execution whatever right of gift or sale she had in the properties being extinguished would vest in the mosque in whose favour the wakf in the name of God was made and that from that day she and her heirs and representatives would have no right of gift and sale of their own in the said properties. Lower down she declared again that if the wakf properties or any portion thereof be acquired by the Government for their own purpose or by any company or municipality, etc., than with the proper price thereof other properties of a similar nature or price will be purchased and the same will be deemed to be the subject-matter of this wakf in favour of the mosque, and the profits thereof will be applied to the expenses as stated and all the conditions of the wakf will apply thereto. The divesting of all rights of gift and sale on the part of the wakif and the vesting of the same in the mosque, the omission to state anything about the residue of the profits if there be a residue, and the provision as to other properties, which may be subsequently purchased with any compensation money that may be received, being invested with character of wakf properties, leave no doubt in my mind that the wakif intended to dedicate the properties absolutely to the mosque. According to the Hanafi law to create a wakf delivery of seisin is not necessary Jas it is in the case of a hiba. According to Abu Yusuf whose tenets hold the field as far as Bengal is concerned, Jinjira Khatun v. Muhamud Fakirulla Mia A.I.R. 1922 Cal. 429, the wakf becomes absolute and binding on the mere declaration of the wakf and on such declaration being made his right in the property which forms the subject matter of the declaration becomes extinguished at once. It may however be that the declaration is equivocal or there may be circumstances suggesting that it was not meant to be operative, and in such a case to see whether that was so or not the conduct of the wakif himself and other circumstances, if attendant and not subsequent, may be examined. His subsequent conduct or the conduct of the subsequent mutwallis are irrelevant for the purpose.
7. In the present case there is evidence of at least two witnesses, P.W's. 2 and 3, who have given definite evidence of Idun Bibi having all along acted in accordance with the directions in the wakf. This evidence has been believed by the learned Judge and there is no reason why we should not rely on it as being true in the main, though the said witnesses have painted the picture a little too thick. In 1890, after Idun Bibi's death, the next Mutwalli Haji Alum, in his suit against Alijan Bibi in respect of the Tiljala property, asserted his right as mutwalli under the wakf and in the judgment in that suit there is the finding, for whatever it may be worth, that upon the evidence of both the parties Idun Bibi, after executing the wakfnama and till her death, defrayed all expenses necessary for the management of the Masjid. It is true that Idun Bibi did not get her name mutated either in the Collectorate or in the municipality as mutwalli and it is also true that in the documents between herself and her tenants she did not describe herself as mutwalli (Ex. C-22 and Ex. C-25), but I am not prepared to make too much of this circumstance. I am of opinion that there are no materials on the record which would indicate with anything like reasonable certainty that the wakf wis anything but real and that on the other hand there is some material which in view of the time that has elapsed since then must be regarded as sufficient, showing that the wakf was acted upon by Idun Bibi herself as also by her successor Haji Alum, Furthermore there are in Ex. A and Ex. B, written statements filed by plaintiff 1 and the pro forma defendant 20 in 1909 and 1911, admissions made by them in the clearest possible terms that till the death of Haji Alum the wakf was religiously and faithfully administered. The Subordinate Judge appears to have made a mistake in supposing that only Rs. 348 were to be spent for the upkeep and maintenance of the mosque, because the figure he has given omits to take into account a part of the directions which rung in these words:
First the sarkari taxes and all sorts of r9venue shall be paid and then the expenses for the mosque and buildings, etc., will have to be defrayed; after that the following expenses shall be duly made.
8. It is the expenses following, of which a schedule has been given, that the learned Subordinate Judge has made a total and found the aggregate to be Rs. 348. For these reasons I am of opinion that the wakfnama created an absolute endowment vesting the properties in the mosque, which is the endowed institution in the case.
9. The next point that has to be considered is the question of limitation. It has been strenuously contended on behalf of the appellant that each succeeding mutwalli gets a fresh starting point of limitation from the date of his accession to the office for the purpose of Article 142 to the schedule to the Limitation Act, and that Article 144 is not applicable because a person who derives his title from a mutwalli cannot set up against the endowment a title which his vendor could not assert, a contention urged on the authority of the decision of the Madras High Court in the case of Rama Reddi v. Ranga Dasan A.I.R. 1926 Mad. 769. It has been urged with great insistence on behalf of the appellants that the earlier decision of the Judicial Committee in the cases of Gnana Sambanda Pandara Sannadhi v. Velu Pandaram (1900) 23 Mad. 271 and Damodar Dass v. Lakshan Dass (1910) 37 Cal. 885 must be taken to have been implicitly overruled by their Lordships decision in Vidya Varuthi Tirthaswamigal v. Baluswami Ayyar A.I.R. 1922 P.C. 123 as the true nature of endowed property and of the position of mutwalli was more accurately realized in the last-mentioned case. I have carefully considered all that has been said in support of these arguments, but I see no reason to differ from the view which I expressed in the case of Raja Manindra Narain Roy v. Sarat Chandra Bandyapadhya A.I.R. 1926 Cal. 913 in which, though these questions did not directly arise, it had to be gone into in view of the arguments that were then put forward. In the case of a sale there can be no question of the vendee's possession, and relying upon the two earlier decisions of the Judicial Committee cited above, I have no hesitation in holding that a suit instituted after 12 years adverse possession since the date of the sale would be barred.
10. I am also of opinion that there is no good reason as to why Article 142 should not also be held to apply to the case, in which case the plaintiff will have to be established his possession at a point of time within 12 years before the suit. With all respect I would dissent from the view taken in the Madras case cited above, firstly for the reason that it proceeds on the unfounded assumption that the earlier decisions of the Judicial Committee are no longer law; and secondly because the introduction of a fiction as to an idol being under a perpetual tutelage and also of a theory of suspension of cause of action during such tutelage will be an encroachment upon the statute of limitation without legislative sanction and will revolutionize all known principles of law and procedure.
11. On the merits, so far as limitation is concerned, I am in entire agreement with the Subordinate Judge in his conclusion, namely that the evidence of possession is practically one sided, that the plaintiffs have adduced no evidence of possession within 12 years of the suit, and that on the other hand Ghashi Bibi and thereafter her legal representatives have been in continuous possession ever since the sale in 1897. (After considering the evidence the judgment proceeded.) Lastly, it has been urged on behalf of the respondents that the declaration of a charge to the extent of Rs. 348 upon the properties of Schedule B which the Subordinate Judge has made is wrongs Upon a construction of the wakfnama I have already held that there was an. absolute dedication of the properties themselves vesting all rights in the mosque and it seems to me that the provisions as to the expenses that are to be Incurred which are detailed in the wakfnama are merely directions to the mutwallis as to how the endowment was to be administered. These directions can hardly be read as creating merely a charge within the meaning of Section 100, T.P. Act. There is no question of property of one person having been made security for payment of money to another; the whole property appears to have been dedicated. Besides, such a declaration was never asked for in the plaint and it was never the plaintiffs' case that there was such a charge.
12. The result is that the appeal fails; and the cross-objections succeed. The suit, in so far as it relates to the properties mentioned in Schedule B, must be dismissed in its entirety. The result is that the plaintiffs will get a declaration that the property mentioned in Schedule A to the plaint is a part of the wakf properties dedicated by Idun Bibi and their possession therein will be confirmed, but that the suit in so far as it related to the properties mentioned in Schedule B will be dismissed.
13. The Subordinate Judge appears to have awarded to the contesting defendants namely defendant 13, defendant 14 and defendants 15 to 19 three-fourths of their costs in the suit, but he has been in error in awarding each of these three sets of defendants costs on the basis of full pleader's fees on the total value of the suit, i.e. Rs. 63,750 whereas as a matter of fact each of these three sets of defendants are only interested in a separate and different part of the properties. As the properties have not been separately valued anywhere we think it would be fair so far as the Court below is concerned, to make the calculation by dividing the total amount of pleader's fees, namely Rs. 943, equally amongst the three sets of defendants. In other respects the decree of the Court below as to costs will stand.
14. So far as the appeal and cross-objections before us are concerned, the appearing respondents, namely respondents 12 and 13 and respondents 14 to 18, will get their respective costs from appellants, but the hearing fee on the total value of the appeal will be divided between the said two sets of respondents in the proportion of 2/3 and 1/3.
15. I agree with my learned brother in the judgment delivered by him. I desire to add that in my judgment it cannot be held that their Lordships of the Judicial Committee of the Privy Council have either explicitly or by implication said anything in the case of Vidya Varuthi Thirthaswamigal v. Baluswami Ayyar A.I.R. 1922 P.C. 123, which might have the effect of overruling the previous decisions given by their Lordships, of which the case of Gnana Sambanda Pandara Sannadhi v. Velu (1900) 23 Mad. 271 is typical and which directly bears upon the question of limitation raised in the present appeal. It also appears to me that in the cases cited in the argument before us by the learned advocate for the appellants the alienation of debuttar, or wakf properties was by the mohunt, shebait or mutwalli as such; in the present case the mutwalli Hayatubox Jamadar had on 23rd August 1897 alienated the properties in suit by a conveyance with definite recital that he was dealing with the properties in his own right as one of the heirs of Haji Alum Jamadar, the other heirs joining him in the transaction. This fact, to my mind, takes the present case out of the class of cases dealing with alienation by a mohunt, shebait, mutwalli as such, in regard to which there may be a seeming divergence of judicial opinion, as to the point of time when exactly adverse possession by the alienee could be said to have commenced. In the present case the date of alienation by Hayatubox Jamadar himself claiming adversely to the wakf must in my judgment be taken to be the date from which possession of the defendants became adverse. I would further desire to say in this connexion that in1 consonance with the decisions of the Judicial Committee it must be taken to be settled that a distinction exists so far as wrongful alienation of debuttar or wakf properties by way of lease and that by way of out and out sale as indicated in the case of Munindra Narain Roy v. Sarat Chandra A.I.R. 1926 Cal. 913.
16. So far as evidence of possession relating to plots 4 and 5 in suit is concerned, it is to my mind sufficient for the purposes of defeating the plaintiffs' claim as laid in the plaint on the ground of limitation. On the footing that the burden of proof lay with the contesting defendants to prove 12 years' adverse possession I would on the materials on the record decide the question in their favour. That these defendants did exercise acts of possession there is no manner of doubt. These acts of possession, it cannot be denied, were done in the assertion of claim of title, and there are circumstances to link together various portions of the property in suit so as to make the possession of a part amount to possession of the whole : see Basanta Kumar Roy v. Secy. of State A.I.R. 1917 P.C. 18. In the above view of the case, the plaintiffs' claim in suit is barred by limitation. I have nothing to add to what has been said by my learned brother on the other points raised in the appeal and cross-objections preferred by some of the respondents.