1. The claim in the suit out of which this appeal arises is Rs. 5100, made up of a sum of Rs. 4770 being the arrears of allowance from Baisakh, 1326 B.S. (April 1919) to Chaitra 1337 B.S. (March 1931), payable by the Nawab Bahadur of Dacca under two documents dated 26th August 1881, and 17th September 1881, to be referred to hereafter as the agreements of 1881, and Rs. 330 being damages for detention of the money. The question is whether the plaintiffs or defendants 2 to 4 (the Roy defendants) are entitled to this sum. The Nawab Bahadur of Dacca at one stage appeared to side with the plaintiffs, but ultimately adopted a neutral attitude, as he should do, and his only concern was that he should not be made liable to pay twice over in the events which had happened since the institution of the suit. In the plaint, many allegations were made and quite a number of questions raised, but before us, the appeal is confined to a few points depending entirely upon the construction of the said agreements of 1881 and of the two judgments delivered by the Judicial Committee of the Privy. Council in Soleman Quadir v. Salimulla Bahadur (1922) 9 A.I.R. P.C. 107 and in Habibullah Saheb v. Janaki Natha Roy . The plaintiffs have lost in the lower Court and have accordingly appealed before us.
2. The material facts are these : On 8th May 1846, nearly all the members of the Nawab family of Dacca executed a Tow liatnama by which they purported to create a wakf in respect of four properties. Sir Abdul Gani was appointed the first mutwalli. The purpose of the wakf was to provide for the wakifs and their descendants, and the ultimate gift to the poor and the destitute was illusory (Ex. 5-B, p. 31). This wakf will hereafter be called Dhan Bibi's wakf and towliatnama as Dhan Bibi's towliatnama. There was another wakf created on 11th September 1868, by Sir Abdul Gani in respect of his self-acquired properties with the same purpose in view, but that wakf is not material for the purposes of the suit. This wakf will hereafter be called Sir Abdul Gani's wakf. After relin quishment of office by Sir Abdul Gani, his son Nawab Asanulla became the mutwalli in respect of both these wakfs. In 1880 however disaffections among the members of the Nawab family came to a head, and in that year some of them instituted a suit, being No. 189 of 1880, against Sir Abdul Gani and Nawab Asanulla as principal defendants, the other members of the family, quite a large number, being joined as pro forma defendants. The plaintiffs of the said suit claimed on account of the profits of the properties included in both Dhan Bibi's wakf and Sir Abdul Gani's wakf, from Sir Abdul Gani and Nawab Asanulla, on the footing that the properties were still secular and the principal defendants were mere managers. In para. (6) of the plaint, Dhan Bibi's towliatnama was attacked (Ex. 5-B, p. 39). This suit was compromised in 1881. In form the suit was withdrawn on the basis of an agreement among all the persons then having interest in the litigation. The memorandum of agreement was executed on 26th August 1881, (Ex. 5-B. Part. II, p. 1), and according to its terms Sir Abdul Gani and Nawab Asanulla executed on 17th September 1881 a document called the deed of agreement, which is a counterpart of the said memorandum of agreement. This memorandum of agreement is the principal document for consideration in this appeal.
3. It is only necessary to notice at this stage the principal terms of this memorandum of agreement. The pro forma defendants were transferred to the category of plaintiffs, and they also joined in executing the document with the original plaintiffs. All charges of fraud made against Sir Abdul Gani and Nawab Asanulla were withdrawn; Dhan Bibi's wakf and Sir Abdul Gani's wakf were admitted as valid and binding wakfs (Clause 4); the parties signing the agreement admitted that they had no claim or interest in the properties in the possession of Sir Abdul Gani and Nawab Asanulla, whether registered in their names or in the names of others (Clause 3); Nawab Asanulla 'by virtue of the power vested in him as mutwalli' agreed to increase the allowances of the members of the family and to distribute Rs. 1,33,084-11-0 annually from the income of the 'wakf' properties to the persons mentioned in Schedules C and D of the document in accordance with such proportions as might be determined by a com-mittee of four male members of the family, and on the accounts being fixed, Nawab Asanulla was within a fortnight thereof to execute in favour of each individual whose name appeared in Schedules G and D, an agreement securing the allowance (Clauses 6 and 7). On the death of any of such persons the allowance payable to him was to be distributed amongst his or her heirs and residuaries in such proportions as the family council would determine (Clause 11). The persons mentioned in Schedule C were those who were to have their allowances from the income of the properties described in Schedule A of the document, being the properties made wakf by Dhan Bibi's towliatnama of 8th May 1846.
4. It is admitted that Khajeh Abdul Majid alias Hola Mia, the predeeessor-in-interest of the present plaintiffs, was a descendant of a person mentioned in the said Schedule C, and was entitled to a monthly allowance of Rs. 187-8-0, out of the income of the properties included in Dhan Bibi's wakf. It appears that in 1906 he with three other persons, Khajeh Abdul Khalek, Syed Karimulla and Khajeh Abdul Rashid, who had similar rights to money allowance, borrowed Rs. 18,000 from defendant 2, Raja Janaki Nath Roy, and from Roy Bahadur Sita Nath Roy, the father of defendants 3 and 4. The said loan was secured by a mortgage dated 20th April 1906, which the lenders took in the name of Jogendra Nath Roy Choudhury, a son of Raja Janaki Nath Roy (Ex. 1, Part II, page 35). The recital in the mortgage instrument is that the mortgagors had between them by inheritance 17 gandas 1 kara 6 jobs 4 dantis 341/2 renus share in the four properties described in the Schedule to the instrument (the self-same properties as were included in Dhan Bibi's wakf), but that according to the practice in the family, the properties were under, the management and control of Nawab Khajeh Salimulla Bahadur and the mortgagors had been receiving every month sums of money from the said Nawab Bahadur on suspense account. The monthly allowance that was being received by Khajeh Abdul Majid is stated to be Rs. 187-8-0. For the loan, the right, title and interest of the mortgagors in the said four properties and their 17 gandas 1 kara odd share, therein together with all the interest appertaining thereto, were made security. Raja Janaki Nath Roy and Rai Bahadur Sita Nath Roy brought a suit on 22nd December 1908, to enforce their mortgage. Khajeh Abdul Majid was then dead, and 11 persons, that is to say his widow and sons and daughters, who would be his heirs under the Mahomedan law, were made parties defendants. One of them was his daughter Ahammadi Khanum. She is plaintiff 3 in the present suit. Another daughter who was a party defendant in the mortgage suit, was Hasahaini Khanum. She has since died, and her heirs, viz. her son Syidulla, and her husband, Aminulla, are plaintiffs 1 and 2 respectively in the suit before us. The final decree in the mortgage suit was passed on 3rd May 1910 (Ex. 4, Part II, p. 70), and at the sale in execution thereof the mortgagee decree-holders themselves, that is the Roy defendants, purchased the mortgaged properties. The sale certificate is at p. 263 of Part II, Vol. 2 of Ex. 5-B.
5. The second chapter in the story now begins with two suits brought by the Roys on 24th May 1916 and 31st May 1916 respectively against the then Nawab of Dacca, Nawab Khajeh Habibulla. There was no other defendant to these suits, in which the plaintiffs claimed possession of 17 gandas 1 kara odd share of the four properties included in the mortgage and purchased by them at the court-sale. Two suits were brought, one in the Court at Dacca and the other in the Court at Barisal, because three of the properties were situate in the district of Dacca and the fourth in the district of Backerganj. The Barisal suit was later on transferred to Dacca and consolidated with the suit pending there. Both the suits were dismissed by the Subordinate Judge on 12th September 1924, and two appeals, being First Appeals Nos. 289 and 290 of 1924, were lodged in the Court. They were heard together and partly allowed. The judgment of this Court, which was delivered on 30th November 1926, is reported in Janki Nath Roy v. Habibulla Saheb : AIR1927Cal359 . This Court held on the view it took of the decision of the Judicial Committee in Soleman Quadir v. Salimulla Bahadur (1922) 9 A.I.R. P.C. 107 referred to above, which turned upon the construction of the self-same-memorandum of agreement of 1881, that the parties to that agreement had surrendered for ever in favour of the then Nawab of Dacca and his heirs their claims to the-aforesaid four properties, in consideration of the payment by the latter to the former of certain fixed heritable allowances of money. The Roy's claim for possession of the properties was accordingly dismissed, but their right to receive from Nawab Habibulla monthly allowances was declared. The decree made by this Court in favour of the Roys was in the following, terms:
It is declared that the plaintiffs are entitled to the allowances charged on 17 gandas 6 dantis & jobs 341/2 renus share of the properties described in the plaint which were payable to Syed Karimulla, Khajeh Abdul Rashid and Khajeh Abdul Khaleque alias Bechu Mia and their heirs and legal representatives, and to the legal representatives on HolaMia, except the person named Hafez Bibi against, whom the mortgage had abated, under the agreements dated 26th August 1881 and 17th September 1881, the amount of such allowances being, left undetermined in these suits.
6. This decree was affirmed by the Judicial' Committee of the Privy Council. The judgment of the Judicial Committee, which is dated 4th November 1929, is reported in, Habibullah Saheb v. Janaki Natha Roy , already-referred to.
7. Another chapter was commenced by the Roys instituting a suit against Nawab. Habibulla for recovery of arrears of allowance due from April 1914 to February 1926. This suit was commenced in 1926 and on the basis of the High Court judgment in Janki Nath Roy v. Habibulla Saheb : AIR1927Cal359 . It was subsequently numbered as Suit No. 31 of 1930 of the 7th Court of the Subordinate Judge of Dacca on transfer, and then again was transferred and numbered as Title Suit No. 26 of 1931 of the First Additional Court of the Subordinate Judge of Dacca. The claim for arrears was laid at Rs. 60,682, and Rs. 43,650 was claimed as interest. That suit was decreed for Rs. 82,457 on 16th July 1931 (Ex. A, Part II, p. 84). Shortly before that date the present suit was brought by three of the heirs of Khajeh Abdul Majid for recovery of their alleged share of the arrears of allowance from April 1919 to March 1931 (roughly) at the rate of Rs. 33.2.0, being their proportionate share of the sum of Rs. 187-8-0 payable to ancestor Khajeh Abdul Majid.
8. In the plaint the memorandum of agreement and the deed of agreement of 1881 are mentioned, and it is first stated that the allowances fixed in perpetuity were payable but not transferable; then the mortgage in favour of the Roys is recited and it is stated that the right to this heritable allowance was not mortgaged and did not pass to them at the mortgage sale. The mortgage bond itself is challenged as a 'mala fide, bogus and fraudulent' deed. The mortgage decree is also impeached on the ground of fraud and other grounds noticed in para. 7 of the plaint. The mortgage sale does not escape attack, but the attack is on grounds which cannot be investigated in a suit, being properly grounds of an application coming under Order 21, Rule 90, Civil P.C. The decrees declaring the Roys' right to the allowances payable passed by this Court Janki Nath Roy v. Habibulla Saheb : AIR1927Cal359 , which were affirmed by the Judicial Committee of the Privy Council Habibullah Saheb v. Janaki Natha Roy , are attributed to collusion between the Roys and the Nawab, and it is further stated that those decrees are not binding on the plaintiffs, as they were not parties to the suits in which they were made. These allegations were denied by the Roy defendants, and the Nawab protested against the charge of collusion levelled against him. Seventeen issues were framed. The issues, which raised a challenge to the mortgage bond, the mortgage decree and the mortgage sale, and to the decree passed by this Court and by the Judicial Committee of the Privy Council in the aforesaid suits of 1916 filed by the Roys against the Nawab for possession proved futile in the lower Court, and the appellants have not attempted to reagitate those matters before us. Their advocate Mr. Gupta has also reconciled himself to the position indicated in Janki Nath Roy v. Habibulla Saheb : AIR1927Cal359 and Habibullah Saheb v. Janaki Natha Roy that the greater includes the less,' and the mortgage security comprised the right of Khajeh Abdul Majid to receive the monthly allowances and that those allowances were charged on the immovable properties, and that at the mortgage sale the Roys purchased the said right of Khajeh Abdul Majid. Mr. Gupta's contention however is that in effect this sale gave the Roys nothing, because according to him, the said right of Khajeh Abdul Majid was of a limited character, a life grant which ceased with his death. This is his principal contention, and it depends upon the construction of the agreements of 1881. He wants to avoid the effect of the decision of the Judicial Committee of the Privy Council in Habibullah Saheb v. Janaki Natha Roy by saying that that decision is not res judicata and has not even any force as a precedent, as the heirs of Khajeh Abdul Majid being not before the Court, the question, Mr. Gupta raises, did not then arise and was not presented at all, and that the decision proceeded upon an assumption that the sale passed to the purchasers the right to receive the allowance for all times. The second point he takes was not taken in the Court below. It is that the Wakf Validating Act of 1930 (Act 32 of 1930) has made Bhan Bibi's wakf a valid one, and his clients have now the right to receive allowance payable by the mutwalli under the said deed. We may at once say that if the appellants' contention that the agreements of 1881 made successive life grants of allowances, be negatived, and it be held that the right to receive the allowances was a heritable one, one that conferred on the original grantees so to say absolute estates which would be transmitted by them to their heirs and could be sold by them, the second point urged by the appellants would be of no help to them, for in that case the Roys' right to receive the allowances would be saved by the proviso to Section 2, Wakf Validating Act of 1930, they having acquired the said right by their mortgage and purchase before that Act came into force.
9. On the question of the construction of the agreements of 1881, Mr. Gupta contends in the first place that the terms of Dhan Bibi's wakf must be taken into consideration in construing the terms of the said agreements for the purpose of finding out the true nature of the allowances to be paid to the persons mentioned in Schedule C thereof. The question is what the parties intended by the said documents of 1881. They had, says Mr. Gupta, expressly affirmed in these documents the validity of Dhan Bibi's wakf and had proceeded on the basis that the said wakf was a valid one. His argument is that the provisions in said agreements of 1881 dealing with the allowances must be regarded as amplifying and defining with greater precision the provisions in the deed of wakf regarding the rights of the members of the Khajeh family to be maintained out of the wakf proper, ties. In this view of the matter, says he, the allowances payable under the agreements of 1881 must be considered as maintenance payable to the members of the Khajeh family, and the right to receive them coupled with the charge on the properties must be considered to be restricted in its enjoyment to the grantees personally. The right is accordingly extra commercium in view of the provisions of Section 6(d), T.P. Act. In our judgment, that contention is no longer open to the appellants in view of the decisions of the Judicial Committee in Soleman Quadir v. Salimulla Bahadur (1922) 9 A.I.R. P.C. 107 and Habibullah Saheb v. Janaki Natha Roy , referred to above, Dhan Bibi's wakf was an invalid one, and it was held that in determining the rights of the parties to the allowances, the agreements of 1881 must be taken to have an independent existence, the judgment of Mookerjee and Walmsley JJ. which had held otherwise in Habibullah Saheb v. Soleman Quader (1920) 7 A.I.R. Cal. 588, having been overruled. In affirming the judgment of B.B. Ghose and Panton JJ. in Janki Nath Roy v. Habibulla Saheb : AIR1927Cal359 the Judicial Committee expressly held that the right to receive the allowances payable under the agreements of 1881 was transferable and had in fact passed to the Roys : Habibullah Saheb v. Janaki Natha Roy .
10. The second line of argument of Mr. Gupta is that the very terms of the memoranda of agreements of 1881 show that a succession of life grants only was intended. He refers to Clause 9, 16 and 17 and says that these clauses indicate that the allowances were in the nature of maintenance. Clause 11, according to him, indicates that the descendants of a person receiving the allowance are to get the allowances, not by reason of the law of inheritance but independently, for if there are several descendants, their shares would not be determined according to the Mahomedan law of inheritance but according to what the family council in their discretion might fix. This contention of Mr. Gupta is against the case made in the plaint, where it is stated in unequivocal terms that the allowances were heritable allowances, that is, would pass to successors by the law of inheritance. But as the question is one of interpretation of an instrument, we should not tie down his clients to their admission but only point out that the admission follows what the Judicial Committee had decided in Soleman Quadir v. Salimulla Bahadur (1922) 9 A.I.R. P.C. 107. It may be that there is some force in Mr. Gupta's contention, but the matter is not res integra. It must however be pointed out that the Mahomedan law does not favour grant of successive life estates, and it is so uncommon among Mahomedans that clearer words would be required. In the cases which the Roys instituted against the Nawab of Dacca in 1916, the fact that Khajeh Abdul Majid had died before the decree in the mortgage suit was prominently before the Court. The judgment of the High Court notices it and in the decree it is made clear. It was expressly stated that the Roys had passed the right to receive allowances payable 'to the heirs and legal representatives of Hola Mia (Khajeh Abdul Majid) except the person named Hafez Bibi against whom the mortgage suit had abated' Janki Nath Roy v. Habibulla Saheb : AIR1927Cal359 , and this decree was affirmed by the Judicial Committee. That decision is not res judicata but it is certainly a binding precedent. The trustee, the Nawab 'of Dacca, fully placed the case of the present appellant by appealing to His Majesty in Council. The ratio in Soleman Quadir v. Salimulla Bahadur (1922) 9 A.I.R. P.C. 107 is that by reason of Dhan Bibi's wakf proving invalid in law, the right to the properties remained in the grantors and their heirs, but that right was relinquished by those owners to the Nawab of Dacca, conveyed, so to say, in consideration of the allowances. The allowances can be regarded as the price payable in instalments. The persons mentioned in Schedule C of the memorandum of agreement were accordingly entitled to them in their absolute right. We accordingly hold that the right to receive the sum of Rs. 187-8-0, less what is payable to Hafez Bibi and her heirs, has passed to the Roys, and the plaintiffs are not entitled to receive any portion thereof from defendant 1.
11. The appeal is accordingly dismissed with costs to the Roy respondents, the Nawab of Dacca to bear his own costs in this appeal.