Tyabji, J.:— This appeal arises out of a suit in which the plaintiff claimed to be muttawali of the lands which admittedly formed part of wakf lands prior to Ex. 1, dated 27th May 1867, and which were then admittedly attached to a mosque. The lands referred to in the plaint formed a portion of those lands and are now in the possession of defendants 4 and 5. The issues raised in the suit, so far as at present material, are as follows:

(1) “Whether the plaintiff is the present mutawalli of the plaintmentioned masjid and as such entitled to the possession of the suit lands.

(2) Whether defendants 4 and 5 are entitled to hold and enjoy the lands as managers of the plaintmentioned masjid.

(3) is the suit barred by limitation?”

2. The District Munsif found:

(1) That the plaintiff had failed to prove that he was solely entitled to the muttawaliship of the masjid; (2) that defendants 4 and 5 had acquired a title as against the plaintiff to hold the lands a trustees of the masjid; and (3) that the suit was barred by limitation.

3. The District Judge does not appear to have recorded any finding on the issues, but he refers to the fact that the District Munsif found that the plaintiff's suit was barred by limitation and says:

“Were it necessary to give a finding on this point I should be inclined: to hold…… that the plaintiffs suit would be barred by Att. 144, Sch. 2, Limitation Act.”

4. Then he goes on to say:

“The father of defendants 4 and 5 came into possession; of the suit property Under a family agreement entered into by the members of the family of the individual who was muttawali at the time of the inam settlement;”

5. And he refers to Ramanathan Chetti v. Murugappa Chetti(1). In concluding his judgment he says:

“I am unable to see how the arrangement made under Ex. 1 is prejudicial to the masjid and I concur in the District Munsif's finding that the plaintiff cannot recover the suit land from defendants 4 and 5, unless he shows that the agreement entered into under Ex. 1 has not been properly carried out.”

6. The only finding therefore that can be spelt out of the District Judge's judgment to that in his opinion the agreement under Ex. 1 is a family arrangement and that it is legal and effective. I can only say that the District Judge is, in my opinion, entirely mistaken in law. There is no power in the muttawali of a mosque to effect a partition of the lands belonging to a wakf, and assuming that the District Judge states correctly the effect of the decision in Ramanathem Chetti v. Murugappa Chetti.

7. I am unable to sea how the rules applicable to arrangements made by cotrustees for the proper management of their trust amongst themselves can affect the question whether a muttawali can divide up the trust properties themselves and apportion them between more persons than one as if they had been the private property of the muttawali. Where a muttawali purports to do this, in my opinion, there can be no doubt that the act is illegal. See Kazi Hassan v. Sagun Balkrishna(2).

8. The District Judge has not recorded any finding on the question, whether by the operation of the Limitation Act the person who will rightfully represent the trust can any more claim the properties in the possession of defendants 4 and 5 on behalf of the trust. Nor has he recorded any finding on the question whether the plaintiff is the person rightfully entitled to represent the trust. The case must, in my opinion, go back for findings on these issues and on all the other issues framed in the suit. I wish to point out that the questions involved in issues 1 and 2 are entirely distinct. The real question involved in issue 1 is whether, assuming that the lands which are the subject matter of the suit are still part of the wakf lands, the plaintiff is entitled to represent the wakf and as such to be in possession of all the wakf lands. Issues 2 and 3 involve the question whether, assuming that the plaintiff is entitled to represent the wakf, these lands form part of the wakf lands or whether the title of the wakf to obtain possession of the lands is lost by limitation.

9. It must be pointed out that any person interested in the due administration of the wakf is entitled to sue for a decree that improper alienations of the wakf property should be set aside and that the property purported to be alienated should be declared to continue, to belong to the wakf. If therefore the alleged partition deed, Ex. 1, is in effect an alienation of the wakf property, it can be questioned by the plaintiff though the plaintiff may not be able to establish that he is the present muttawali or that he is entitled as such to be put into possession of the property belonging to the wakf. Findings in six weeks and seven days for objections.

White, C.J:— I have read the judgment which has been written by my learned brother and I concur.

10. (In compliance with the order contained in the above judgment, the District Judge of Chingleput submitted the following)

FINDING

11. In connexion with Second Appeal No. 1345 of 1911 on the file of the High Court, I am directed to return findings upon the issues originally in suit as well as upon new issues as follows:

(i) Whether by the operation of the Limitation Act the person who will rightfully represent the trust can any more claim the properties in the possession of defendants 4 and 5 on behalf of the trust.

(ii) Whether the plaintiff is the person rightfully entitled to represent the trust.

12. The suit property admittedly forms part of that granted as inam for a certain Mahomedan masjid in the village of Ambi. The extract of the Inam Register, Ex. A, shows that one Raja Hussain Siddikh was one of the two keepers for the time being in the year 1862. There is no evidence as to what became of the other keeper for the time being. Raja. Hussain Siddikh had only two sisters, and in 1867 he partitioned the masjid inam, giving the plaint land, representing the ⅓rd share of his sister, Khadir Unissa, to her son-in-law, Mahomed Apan Sahib, on condition that she got her share of masjid service performed by the said Apan Sahib. Defendants 4 and 5 are sons of Apan Sahib and admit they hold the plaint land as a trust, defendant 5 stating in his evidence that each of three branches has a turn of 10 years, that he had his turn fifteen to five years ago, that the plaintiff is doing his turn for the last five years, and that all the three branches together do repairs to the masjid. There is however no evidence to prove this theory of turns, and I quote it merely as an admission against defendants 4 and 5 that they hold the plaint lands as a trust attached to the office of muttawali in the masjid.

13. The plaintiff asserts that he is the sole muttawali, and as such entitled to hold the plaint lands. He has not shown how he came to be muttawali or who appointed him, except that he is a grandson of Raja Hussain Siddikh, and that his mother was holding the office for him, through a gumastah during his minority. The original issue 1 and the new issue 2 were answered by the District Munsif in the negative. My predecessor did not specifically answer this issue, but he presumably did not find it in the affirmative for he did not decree the suit, I have examined the evidence on record and I am of opinion that the answer most be in the negative.

14. As regards the new first issue defendants 4 and 5 admit that they hold the property on behalf of the trust, and I therefore find that the person who will rightfully represent the trust can claim the properties in the possession of defendants 4 and 5 on behalf of the trust, and that such claim is not barred by the Limination Act.

15. The important issues in the suit are the original issues 2 and 3. It is now decided that the partition made by Raja Hussain Siddikh under Exs. 1 and 2 in 1867 was utterly invalid under Mahomedan law and that point is, of course, no longer open to question. The fact remains however that the partition was actually effected and has continued in force until the present time. That is the finding of the District Munsif and of my predecessor and upon the evidence I cannot but concur. Mahomedan law is but imperfectly known and understood in the mofussil of Southern India, and it is not uncommon to find Mahomedans following the Hindu law of joint family estate and of partition. A very common method of dealing with hereditary services is to partition the inam lands upon the understanding that the various branches of the family shall hold office in rotation for a period proportionate to the shire in the estate. That is undoubtedly what was intended by Exs. 1 and 2, namely, that the family, of Khadir Unissa took one third of the service lands and was to perform one-third of the duties of office. The real question in the suit then is whether defendants 4 and 5 are entitled to hold one third of the office and with it, the plaint lands. The finding of the District Munsif and of my predecessor is that the plaintiff is barred by limitation from recovering the one-third share of office from these defendants. I must concur in this finding. The arrangement is no doubt utterly illegal under Mahomedan law, but until the situation is dealt with by a suit for a scheme of management or by some such method, it must continue. It does not appear to have been explained how the share of one sister, as against a brother and another sister, was one-third; but this possibly is merely another instance of how Mahomedan law is misunderstood in the mofussill.

16. Issue 4 was found against defendants 6 and 7 and this finding has not been questioned in appeal so remains good.

17. The other issues require no finding.

18. (This second appeal coming on for final hearing on 13th October 1914, after the return of the finding from the lower appellate Court on the issues referred by this Court for trial and having stood over for consideration till this day, the Court delivered the following)

JUDGMENT

Tyabji, J.:— The dismissal by the District Munsif of the plaintiff's suit for the recovery of the wakf properties mentioned in the plaint was upheld by the District Judge without any findings as to the necessary facts, on the untenable ground that a muttawali may validly partition wakf hands and give effect to an arrangement that a person “should enjoy one-third of the inam lands and should do a share of the service due at the Masjid.”

19. Neither the wakf property nor the duties of the muttawali can be lawfully “partitioned.” The rights of the mauqufalaih or beneficiaries cannot be affected by such an arrangement, unless by operation of the Limitation Act.

20. It became necessary therefore to ask for findings from the District Court.

21. The findings now submitted by another learned Judge appear to be: (1) that the parts of the wakf lands now in question are not lost to the wakf by adverse possession; (2) that the plaintiff is not “the sole muttawali” nor “as such entitled to hold the plaint lands;” (3) that defendants 4 and 5 are actually in possession of the lands under the “partition already referred to; (4) that though the arrangement is “utterly illegal,” it “must continue until the situation is dealt with by a suit lot a scheme of management of by some such method”

22. And (5) that “the plaintiff is barred by limitation front recovering the half share of office from”

defendants 4 and 5.

23. The expression “sole muttawali” is used by the learned District Judge not in contrast to a body of co-trustees administering the wakf as one collective possession in their joint capacity, in whom the whole of the wakf property is jointly vested. The expression is evidently used by the learned Judge under the erroneous impression that both the plaintiff and defendants 4 and 5, have some title to be separately in possession of parts of the wakf property “until the situation is dealt with by a suit for a scheme” or as above stated.

24. The texts of Mahomedan law ordinarily contemplate only one muttawali; but when two or more persons are appointed with the intention that they should jointly administer a single wakf—and there is nothing to prevent such an appointment—their position would be similar to that of any other body of co-trustees. Such a “partition” as is referred to above would not affect their legal position or joint responsibility: Robinson v. Harkin(3), and Lewis v. Nobbs(4).

25. What the District Judge intends to find seems to be that no one person is entitled to claim the whole wakf property without there being a scheme.

26. There is no necessity however for a scheme in a case where there is a wakf and no person is lawfully administering it. For the law relating to wakfs makes it incumbent on the Court to designate the person who in accordance with the terms of the dedication (or wakfnama), is entitled to act as muttawali and if there are no directions by the author of the wakf on this matter, it is for the Court to appoint a muttawali: Phatmabi v. Haji Abdulla(5). It is also for the Court to insist upon the proper administration of the wakf, and for that purpose it will remove any muttawali (much more an unauthorized person who is not lawfuly clothed with the status of mutawalli) who is guilty of misconduct or whose removal is required for the welfare of the wakf: Chintaman v. Dhondo(6), and Damodar v. Bhat Bogilal(7), even though the author of the wakf should have appointed himself muttawali and even though he should have laid it down as a term of the dedication that the mu-tawali should not be liable to be removed: Baillie's Digest, Vol. 1, p. 592 (Edn. 1), Grady's Hedaya, p. 329, and even though the parties themselves by their pleadings do not ask for his removal, Wrightson, In re and Wrightson v. Cooke(8).

27. This jurisdiction however can only be exercised by way of “directions necessary for the administration” of wakfs: Neti Rama Jogiah v. Venkatacharlu(9), under Section 92 of the CPC.

28. The error therefore of the District Judge, by which he considers the plaintiff to have made out some show of title to be recognized as muttawali in regard to what he terms a share of the office, cannot be so utilized as to deprive defendants 4 and 5, of their possession which has been supported on the same basis.

29. It is clear that, but for the misapprehension of the law by the District Judge his finding would have been as unequivocally against the plaintiff as the District Munsif's. Invoking therefore (in so far as necessary) this Court's powers under Section 103 of the CPC, the finding may be considered to be that given by the District Munsif. The fact that the basis on which defendants 4's and 5's claim is supported is also erroneous, does not affect the decision in a suit which is not instituted under Section 92 of the CPC, and in which the plaintiff can only succeed on his own present title irrespective of any appointments by the Court.

30. The result will be that the appeal will be dismissed.

31. The defendants have made common cause against the plaintiff on the basis of an utterly illegal arrangement made in breach of trust. They will bear their own costs throughout. This judgment will be communicated to the Advocate-General and the Collector (Ss. 92 and 93 of the CPC)

Oldfield, J.:— I concur in my learned brother's decision and do not oppose the communication of a copy to the Advocate-General and the Collector.

B.V/R.K

32. Appeal dismissed.