Maulvi Muhammad Fahimal Haq vs Jagat Ballav Ghoshand and others

Mullick, J.—Suit No. 746 of 1919 out of which this appeal arises relates to a 12-annas 6-pies share in Taluk (sic) Zamindari bearing Tauzi No. 1451, and to a 1-anna 6-pies 17-krants'' share in Taluk Gobindpur Zamindari bearing Tauzi No. 1844, in the district of Cuttack. The properties are alleged by the plaintiff. Muhammad Fahimul Haq, the son of Maulayi Enamul Haq, to be the subject of a waqf created by his ancestress, Musammat Asmatunnissa, by a deed dated the 31st January, 1848, for the endowment of a mosque and a khanka in mauza Farhattabad, appointing herself as the first mutwalli, and, as her successor, her husband, Maulavi Muhammad Faruk, by whom the properties had been conveyed to her by two hibanamas, dated the 1st September 1836, and the 14th October 1840, in lieu of deferred dower. It is alleged that Asmatunnissa was succeeded by Muhammad Faruk, who was succeeded by his son Muhammad Kamal alias Muhammad Faik, who again, upon his death, was succeeded by his eldest son, Abdul Gunny, defendant No. 3, in this suit. The plaintiff is the son of Enamul Haq who was Muhammad Faruk''s stepbrother. He does not claim to be the mutwalli but as a member of the founder''s family asks for a declaration, that the defendant No. 3 had no proprietary right in the properties in suit and that a mortgage bond in respect thereof, dated the 18th May, 1900, in favour of defendant No. 1 and defendant No. 2 and the auction sale following thereupon, dated the 15th August, 1907, are illegal and inoperative. It is admitted that the defendant No. 3, Abdul Gunny, mortgaged both properties to defendants Nos. 1 and 2 on the 18th May, 1900, and that in execution of the decree obtained on the mortgage, the mortgagees took possession on the 5th February, 1908, and that they subsequently sold property No. 2 to the defendant No. 22, who is Sitanath Roy, shebait marfatdar of Sri Hanuman Jiu Thakur. The second declaration which the plaintiff seeks runs as follows:-

That the possession of the defendants Nos. 1 and 2 is that of a trustee and they ought not to have any connection with the property in claim inasmuch as they are not mutwallis and are unfit to act as such.

In the plaint there were three other prayers as follows:

(Ga) That if the Court considers that the plaintiff is fit to act as mutwalli then it may be decided that the disputed properties may be managed by the plaintiff for the purpose of discharging religious duties in connection with the aforesaid Farhattabad Mosque;

(Gha) that if the Court so considers it may settle any other scheme for the management of the disputed properties for the benefit of the masjid; and

(Cha) that any other relief may be granted to the plaintiff which the Court considers fit.

These prayers were considered by the learned Subordinate Judge to be for consequential relief within the meaning of section 42 of the Indian Specific Relief Act, and, upon the plaintiffs refusing to pay ad valorem court-fees thereon, the Court, by an order, dated the 1st September, 1920, directed that they should be deleted.

The suit was defended at first by defendants Nos. 1 and 2 and upon their pleading that it could not proceed in the absence of defendant No 22, the vendee of property No. 2, the idol Sri Hanuman Jiu was added as a party through his marfatdar Sitanath Roy who has also filed a written statement.

The Subordinate Judge finds that the waqf created by Asmatunnissa was valid and operative and that as the plaintiff has declined to ask for any consequential relief the suit is not maintainable by reason of the provisions of section 42 of the Specific Relief Act; he also finds that the suit is barred by the rule of six year''s limitation. He has accordingly dismissed the suit and the plaintiff appeals.

There was another suit tried jointly with this suit, namely. Suit No. 112 of 1919 in regard to the same properties in which the plaintiff Abdul Sakur, claimed to be the mutwalli of the waqf upon appointment by Abdul Gunny, three or four years before the suit. In that suit he, in addition to the declaration mentioned above, claimed recovery of possession. The learned Subordinate Judge found that the suit was properly framed but that as Abdul Sakur had not established that he had been appointed mutwalli by his father, Abdul Gunny, he was not competent to maintain it. In the course of the trial Abdul Gunny died and Abdul Sakur asked leave to amend the plaint by adding a claim that he was entitled to succeed to the post of mutwalli as the eldest son of Abdul Gunny. That prayer for amendment was not allowed and in the result the suit was dismissed.

There was a third suit, No. 244 of 1919, in which the plaintiff, Muhammad Fahimul Haq, asked for declarations similar to those in Suit No. 746. That suit also was dismissed. As there are no appeals against decrees in suits Nos. 112 and 244 we are no longer concerned with them.

The only question, therefore, for decision is one of law, namely, whether suit No. 746 is maintainable.

Taking the position most favourable to the appellants and assuming for the moment that notwithstanding the cross-objections of the respondents the trust in regard to the mosque was in respect of specific properties for a specific purpose, that it was valid under Muhammadan law and that the transfers made by Abdul Gunny in favour of defendants Nos. 1 and 2 and, therefore, also the sales by defendants Nos. 1 and 2 in favour of defendant No. 22, were invalid, the sole question for decision is whether the plaintiff, Muhammad Fahimul Haq, is entitled to the declaration which he seeks.

Not being the mutwalli, even though he is a member of the family of the founder, he is no better than a member of the public interested in the trust and it was open to him to bring a suit u/s 92 of the CPC for the removal of the trustee, the appointment of a new trustee, the vesting of property in the trustee, for the settling of a scheme and for the other reliefs enumerated in that section; but the plaintiff has not taken that course, and, in my opinion, the learned Subordinate Judge was right in holding that he can obtain no relief under the general law unless he asks for consequential relief in the shape of recovery of possession. His suit clearly offends against the express provisions of section 42 of the Specific Relief Act.

It is now settled that a beneficiary of a trust in respect of a Muhammadan waqf interested in the maintenance of mosque or other charitable institution may, without having recourse to the provisions of rule 8, Order I, Civil Procedure Code, and without suing in a representative capacity on behalf of the other beneficiaries, sue for recovery of possession of property wrongfully alienated by the trustee and for the incidental declaration that the properties are the subject of the trust and that they cannot be alienated. It is true that in Delroos Banoo v Nabab Syed Ashgur Ali [1875] 15 B.L.R. 167:23 W.R. 453 it was held that in respect of a property which is subject to the provisions of Act XX of 1863 no suit could be brought by a beneficiary without the leave of the principal Civil Court as required by section 18 of the Act. But that decision was virtually overruled in Jan Ali v. Ram Nath Mundul [1882] 8 Cal. 32: 9 C.L.R. 433 where it was held that the plaintiff in such a suit may sue without obtaining permission u/s 18 of the Religious Endowment Act, but he must sue in a representative capacity after complying with the provisions of section 30, CPC of 1882, which corresponds to rule 8, order I of the present Civil Procedure Code; a still wider view has been taken in the later ruling of the Allahabad High Court in Zafaryab Ali v. Bakhtawar Singh [1883] 5 All. 497: (1883) A.W.N. 91 and in a Full Bench decision of the same Court in Jawahra v. Akbar Hussain [1884] 7 All. 178: (1884) A.W.N. 324 (F.B.). The judgment of Mahmood J. in this last mentioned case is clear authority for the proposition that the trust property vests in God and the right of a Muhammadan, who is entitled to use a mosque to bring a suit for the recovery of property belonging to it, is comparable to a right of suit in respect of a private road which many persons have a right to use. Every Mussulman who derives any benefit from such a waqf is entitled to maintain an action against the mutwalli to establish his right thereto or against a trespasser to recover any portion of the waqf property which has been misappropriated, without joining any other person who may participate with him in the benefit. It is clear that, if the mutwalli himself is the offender or if he is unwilling to act, the beneficiary must have the power to recover the property. This also was the view taken in Kazi Hassan v. Sagun Balkrishna [1900] 24 Bom. 170: 1 Bom. L.R. 649. The judgment of Parson, J., in that case is clear authority for the proposition that a right of suit for a declaration and for the recovery of the property for the benefit of the trust will lie. Ranade, J. the other member of the Bench, was of opinion that the suit was maintainable for the declaratory relief which was the principal cause of action and that the relief as to possession might also be claimed under certain circumstances if it was proved that the plaintiff had succeeded to the office of the mutwalli or was rendering service at the mosque. The main question argued before the Hon''ble Judges was whether the suit could be brought without resorting to the procedure of section 539, CPC of 1882, and on a careful reading of the judgment of Ranade, J. it would appear that he did not hold that if there was consequential relief open to the plaintiff, the plaintiff was entitled nevertheless to ask for a mere declaration. I think what that learned Judge intended to hold was that if it should turn out that the plaintiff was not under the circumstances entitled to recovery of possession then a suit for a mere declaration would lie; this was also the interpretation put upon this decision by Dundas, J. in the Lahore High Court in Mt. Afiman v. Hamiduddin Hussain [1919] 58 P.W.R. 1919: 51 I.C. 799.

The question then is whether consequential relief being clearly available to the plaintiff in the present suit, he is entitled to a mere declaration. In my opinion he is not 30 entitled, and I rely upon the observations of Jenkins, C.J. in Deokali Koer Vs. Babu Kedar Nath and Others, , where the learned Judge defines the scope of section 42 of the Specific Belief Act as follows: "The limit imposed by section 42 of the Specific Relief Act is on decrees which are merely declaratory and does not expressly extend to decrees in which relief is administered and declarations are embodied as introductory to that relief. For such declarations legislative sanction is not required as they rest on long established practice. But for all that the Court should be circumspect and even chary as to the declarations it makes; it is ordinarily enough that relief should be granted without the declaration."

The decision of their Lordships of the Calcutta High Court in Ashraf Ali v. Muhammad Nurajjama [1919] 23 C.W.N. 115: 49 I.C. 355 would seem to offend against this principle, but the circumstances of that case were peculiar. There the plaintiffs, who were worshippers at a mosque, which was waqf property, sued for a declaration that the alienations made by the mutwalli were void and inoperative and for a decree for khas possession with mesne profits either in favour of the plaintiffs or the mutwalli. The prayers for khas possession and mesne profits were disallowed and the plaintiffs were satisfied with a mere declaration. On second appeal by the contesting defendant the High Court held that a suit by a worshipper was maintainable and they dismissed the appeal. There was no cross appeal by the plaintiffs in regard to the consequential relief and under the circumstances the Court had no option but to maintain the decree of the Court below in the form it was passed. That decision, however, does not seem to be authority for the proposition that a Court can give a decree in violation of the provisions of section 42 of the Specific Relief Act.

It is argued before us that even though section 42 might be a bar, that section is not exhaustive and that apart from statutory authority the general law entitles the plaintiff to a declaration. In my opinion there is no substance whatever in this contention. It is now well settled that the power of Courts in India to entertain suits of a civil nature does not carry with it the general power of making declarations, except in so far as such power is expressly covered by statute. In Srimathoo Vijia Raghonadha Ranee Kolandpuree Natchiar v. Dorasinga Tever [1875] 2 I.A. 169: 15 B.L.R. 83: 23 W.R. 314: 3 Sar. 456 (P.C.) their Lordships of the Judicial Committee in stating the history of declaratory decrees in India and in construing section 15 of the CPC of 1859, observed as follows: "Nor does any Court in India since the passing of the Code seem to have considered that it had the power of making declaratory decrees independently of that clause," and their Lordships finally held that a declatory decree could not be made unless there was a right to consequential relief capable of being had in the same Court or in certain cases in some other Court. It may be contended that if a beneficiary is permitted to sue for recovery of alienated trust property and not to ask the Court to deliver it to the offending mutwalli the Court will in effect be assisting in a fraud upon the alienee and in violating the general principle that a grantor cannot derogate from his grant. That certainly appears at first sight to be a contention worthy of some attention, but the decided cases all show that the Courts have paid more regard to the protection of the trust than to the protection of the alienee and it is now settled that even if the grantor has himself been implicated in the abuse of the trust the Courts will interfere at his instance to prevent a repetition of the abuse though his previous conduct might be a reason for excluding him from the administration of the trust property. In Juggutmohinee Dossee v. Sookhmoney Dossee [1870] 14 M.I.A. 289: 17 W.R. 41: 10 B.L.R. 19: 2 Suth. 512: 3 Sar. 23 (P.C.) their Lordships of the Judicial Committee observed that they would not decline to protect the property and leave it further exposed to loss and decline to make a declaration that it is trust property merely because they would not trust the plaintiff with its administration. That case was followed in Subbarayudu v. Kotayya [1892] 15 Mad. 389. where the Court went so far as to hold that a hereditary dharmakarta of a temple, who had assigned his office to a zamindar and consented to a decree being passed on the footing of such assignment, is competent nevertheless to bring a suit to set aside a Court sale of temple lands, treating such assignment as a nullity. To the same effect is Srimati Mallika Dasi v. Ratan Mani Chakervarti [1897] 1 C.W.N. 493, where a shebait who had mortgaged his priestly office with the emoluments was permitted to plead as a defence to a suit by the mortgagee that the transfer was void and inoperative. The general principle in these cases is that where the transfer is void in law no question of equity as between the transferor and the transferee can arise.

The learned Vakil for the appellant finally asks that he may be permitted to amend his plaint so as to include a prayer for consequential relief. In my opinion that prayer cannot be allowed at this stage in particular as the prayers (Ga), (Gha) and (Cha) which related to consequential relief were deleted in consequence of his laches in the trial Court.

The learned Vakil also asks that we should consider the prayer (Kha) as a prayer for consequential relief. That clause runs as follows:-

That it may be declared that the possession of the defendants Nos. 1 and 2 of the property in claim is that of a trustee and that they ought not to have any connection with the property in claim inasmuch as they are not mutwallis and are unfit to act as such.

In the first place it is quite clear that the defendants 1 and 2 being Hindus cannot be mulwallis of the trust property. In the second place the words "ought not to have any connection with the property in claim" are vague and do not amount to a request for recovery of possession. The plaintiff throughout prosecuted his suit as a suit for a mere declaration and it is too late in the day to contend that the suit complied with the provisions of section 42 of the Specific Relief Act.

Therefore, on the question whether the suit is maintainable, I am of opinion that the decision of the learned Subordinate Judge must be affirmed and that the suit has been rightly dismissed.

As to limitation, it is contended on behalf of the respondents that the suit is barred by six years'' limitation which runs from the date of alienation. That view is, in my opinion, correct. Article 120 of the Indian Limitation Act applies and the judgment of their Lordships of the Madras High Court in Ananda Varar v. Vasudewan Manbudiri [1910] 8 M.L. T. 240: (1910) M.W. N. 594: 8 I.C. 357 though very shortly reported, is clearly to the point. There the manager of a Hindu endowment sued for a declaration that certain alienations were void. It was held that the cause of action dated from the date of the patta by which the, alienation was made; and that as more than six years had elapsed since that date the plaintiff''s suit should be dismissed although the right of the dewaswam to the property might not be barred.

The learned Vakil for the appellant contends that if a suit for possession and declaration is maintainable by the successor of a mutwalli in respect of alienations made by the mutwalli before his death and the period of limitation is twelve years, it should follow a fortiori that a suit during the lifetime of a mutwalli by a beneficiary or by the mutwalli himself cannot be barred; and that in any event the period of limitation should not expire till six years from the death of the mutwalli. In my opinion this argument is fallacious. The declaration obtained in a suit for possession is merely ancillary and is generally unnecessary; but where the cause of action is based upon a shadow cast upon the title of a person, who is not entitled to any consequential relief at the moment, limitation must run from the date on which that challenge to his title commences. If the learned Vakil''s argument is correct then the death of the mutwalli can make no difference and there ought to be no limitation at all. Cases coming under Article 134, for recovery of possession after the death of a trustee, have no application to the present case. The question was considered at some length in. Chidambaranatha Thambiran v. Nallasiva Mudaliar [1918] 41 Mad. 124: 33 M.L.J 357: 22 M.L.T. 218: 6 L.W. 666: 42 I.C 366. In that case a beneficiary sued for recovery of property wrongly alienated by a Hindu and section 120 of the Limitation Act was set up as a bar and the Court held that either Article 134 or 144 of the Limitation Act would be applicable as the suit was one for possession and not for a mere declaration.

It may perhaps be contended on the authority of Chukkun Lal Roy v. Lolit Mohan Roy [1893] 20 Cal. 906 that in the present case the right of suit is a continuing right and that so long as the plaintiff''s right to the property continues the suit cannot be barred by limitation. Although certain observations in Chukken Lal''s case [1893] 20 Cal. 906 which was a suit for the construction of a will by a reversioner, may seem to support this view, I think with great respect that, if it was intended to lay down the general proposition that there is a continuing right to a declaratory decree in respect of property so long as the right to the property is not extinguished, the proposition is too widely stated. The principle of section 23 of the Limitation Act, which deals with continuing wrongs, can have no application to a declaratory suit and there is no recurring cause of action for a declaratory relief. It is to be noted that the decision in Chukkan Lal''s case [1893] 20 Cal. 906 has been reversed by the Privy Council in 1 CWN 387 (Privy Council) on another point. Their Lordships did not consider the question of limitation but I venture to think that limitation began to run when the defendant did the first act prejudicial to the plaintiff''s title.

In any event the facts of the present suit are different and it is in my opinion clearly barred by limitation as was instituted more than six years after the date of the alienation.

The result is that the appeal is dismissed with costs.

Ross, J.

I agree.