The Judgment of the Court was as follows:—

Mukerji, J.:— One Khedu Jemadar had in his life-time built and consecrated a mosque at Tiljala, in the suburbs of Calcutta, the place where he resided. The mosque was originally a filed 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 he married as a widow and by the latter a son named Didar Bux. Idun Bibi had a daughter named Raju Bibi by her first husband. By his Will he bequeathed a 10 annas share of his properties to his first wife Dulera Bibi, and the remaining 6 annas thereof to his second wife Idun Bibi and son Didar Bux. On Khedu Jemadar'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, 6 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 the 23rd June 1884 executed a wakfnama and had it registered, in respect of 9 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 cottas of land in Tiljala and Schedule B consisting of 5 plots of land in Salkia.

The Plaintiff's 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 (i.e, Raju Bibi's) son Haji Alam succeeded her as mutwalli and acted as such till his death which took place in 1894; that Haji Alam left a widow Samiran Bibi and 4 sons Nabi Bux, Hayatu Bux, Rahim Bux and Kader Bux; that one Dina Nath Sanyal prevailed upon these persons to execute two mortgages an his favour, in respect of plot No. 5 and plots 1 and 4 of Schedule B for Rs. 700 and Rs. 800 on the 7th August 1896 and 8th January 1897 respectively, describing the said properties as secular properties; that the said Dinanath Sanyal then caused a mortgage to be executed by those persons on the 5th August 1897 in favour of one Nani Lal Agrari in respect of the properties in Schedules A and B for Rs. 6,000, describing them as secular properties and thereafter on the 23rd August 1897 got them to sell the said properties to Ghasi Bibi, mother of Nani Lal Agrani in satisfaction of the said mortgage and for a further consideration of Rs. 2,000. The Plaintiffs' case further is that Samiran Bibi, Nabi Bux and Rahim Bux having died, the Plaintiff No. 1 Hayatu Bux and the pro formâ Defendant No. 20, Kader Bux 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 Kader Bux expressed his unwillingness to act as mutwalli, the Plaintiff No. 1 Hayatu Bux appointed the Plaintiff No. 2 Kasu Jemadar as mutwalli on the 18th July 1919. The Plaintiffs' case further is that the Plaintiff No. 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 the. Plaintiff No. 2 with a view to recover the properties gave a lease to the Plaintiff No. 3 for a period of 99 years on receipt of a premium of Rs. 12,000. The suit was instituted on the 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.

Besides the pro formâ Defendant No. 20, Kader Bux 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 Dinanath Sanyal whose name has appealed before; Nos. 9 to 11 (of whom No. 10 Nani Lal Agrani having died his name was struck out) are the representatives of Ghasi Bibi who has also been referred to above; Nos. 12 and 13 are subsequent transferees of plots 1 and 2 of Schedule B; No. 14 is the subsequent transferee of plot 3 of Schedule B, and Nos. 15 to 19 claim to be the present owners of plots 4 and 5 of Schedule B.

The Subordinate Judge held that the Plaintiff No. 1 and the pro formâ Defendant No. 20 are entitled to a declaration that the properties in suit together with other properties mentioned in Idun Bibi's wakfnama are walk properties only to the extent that there was thereon a charge of Rs. 348 per year for the upkeep and the 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 the Plaintiff No. 1 and the Defendant No. 20 as mutwallis in respect 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.

From this decree the Plaintiffs have preferred the main appeal—Appeal from Original Decree No. 190 of 1927. To this appeal two sets of cross-objections have been filed, one by the Respondents Nos. 12 and 13 (the holders of plots Nos. 1, 2 and 3 of Schedule B) and the other by the Respondents Nos. 14 to 18 (the holders of plots Nos. 4 and 5 of Schedule B).

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 a middle course and has held 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 “wakif 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 she 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 day of its execution, whatever right of gift and 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., then with the proper price thereof other properties of a similar nature or profit 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 above 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 the 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 as 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. Mohammad Fakirulla Mia* (1)] the wakf becomes absolute and binding on the mere declaration of the wakif, 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 herself and other circumstances, if attendant and not subsequent, may be examined. Her subsequent conduct or the conduct of subsequent mutwallis are irrelevant for the purpose. In the present case there is evidence of at least two witnesses P.Ws Nos. 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 may have painted the picture a little too thick. In 1890, after Idun Bibi's death the next mutwalli Haji Alam 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 musjid. It is true that Idun Bibi did not get her name mutated either in the Collect orate or in the Municipality as mutwalli, and it is also true that in documents between herself and her tenants she did not describe herself as mutwalli (Ex. C22, Ex. C25) but I am not prepared to make to 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 was 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 Alam. Furthermore there are in Ex. A and Ex. B, written statements filed by the Plaintiff No. 1 and the pro formâ Defendant No. 20 in 1909 and 1911, admissions made by them in the clearest possible terms that till the death of Haji Alam the wakf was religiously and faithfully administered. The Subordinate Judge appears to have made a mistake in supposing that only Rs. 348 was to be spent for the upkeep of and maintenance of the mosque, because the figure he has given omits to take into account a part of the directions which runs in these words: “First the Sarkari taxes and all sorts of revenue shall be paid and then the expenses for the mosque and building, etc., will have to be defrayed; after that the following expenses shall be duly made.” 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.

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 office for the purposes of Art. 142 to the Schedule to the Limitation Act and that Art. 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 Reddy v. Rangadasan (2). It has been urged with great insistence on behalf of the Appellant that the earlier decisions of the Judicial Committee in the cases of Gnanasambanda Pandara Sannadhi v. Velu Pandaram (3) and Damodara Das v. Iakhan Das (4) must be taken to have been implicitly overruled by their Lordships' decision in Vidya Vasuthi Thirthaswami v. Baluswami Ayyar (5) as the true nature of endowed property and of the position of a 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 Narayan Roy v. Sorat Chandra Bandopadhaya (6) in which though this question 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 being adverse from the point of time that he obtains 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. I am also of opinion that there is no good reason as to why Art. 142 should not also be held to apply to the case, in which case the Plaintiff will have to establish his possession at a point of rime 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.

Or the merits, so far as limitation is concerned, I am in entire agreement with the Subordinate Judge in his conclusions, 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 Ghasi Bibi and thereafter her legal representatives have been in continuous possession ever since the sale in 1897. There is evidence (see D.W 11) of the balance of consideration, viz., Rs. 2,000 having passed, over and above Rs. 6,000 paid on account of the mortgage, and so there is no room for the contention that the transaction was not an out and out sale but that the vendee's possession was merely that of a mortgagee. The receipt of the consideration is stated in the kobala itself (Ex. C94). The Plaintiff No. 1 and the pro formâ Defendant No. 20 in a written statement filed in 1909 admitted that the transaction was a sale (Ex. A) and that possession was transferred thereby. So far as plots 1, 2 and 3 are concerned it is admitted on behalf of the Appellants that there is a large body of evidence of the Defendants' possession for more than 12 years and so the evidence relating to these two plots need not be referred to. As regards plots 4 and 5, we have examined the evidence—oral and documentary—that there is on the record: the vendees appear to have been in possession ever since their purchase in 1897 by mutating their names in the Municipal registers, payment of rents, rates and taxes and making realization from tenants. The argument that because the documentary evidence as to realization of rent relates to a portion, possession of the whole should not be inferred, does not appeal to me as sound, as the whole was held under one title and even if no rent was realized for the whole that does not necessarily mean that the whole was not in the possession of the vendee. Besides in the written statement (Ex. B.4) filed in a suit in 1900 it appears to have been admitted by the Plaintiff No. 1 that Ghasi Bibi and her successors were in possession of all the plots from 1897 onwards.

Several other questions have been raised on behalf of the parties and it is necessary that they should now be dealt with, though quite shortly.

It has been urged on behalf of the Appellants that in two suits instituted by the heirs of Dinanath Sanyal for the enforcement of his two mortgages of 1896 and 1897, viz., suits Nos. 30 of 1909 and 31 of 1910—decrees were obtained by the said heirs with the result that plot No. 5 and one-third share of plots Nos. 1 to 4 were sold in execution and purchased by the said heirs, the Defendants Nos. 1 to 8, in 1915 and 1917 respectively and that therefore the title of Ghasi Bibi and her heirs in those properties was extinguished and so the Plaintiffs are entitled to recover the same. Now it is true that in these suits the Plaintiffs Nos. 1 and 2 as well as Ghasi Bibi or her heirs were parties: but the Defendants Nos. 1 to 8 have not contested the present suit and no issue was framed for the purpose of determining the rights of the Defendants inter se, that is to say, of Nos. 1 to 8 on the one hand and the other Defendants on the other as based on the judgments in the said mortgage suits or on the possession that is said to have been taken in execution in 1915 and 1917. It should also be stated here that in paragraph 10 of their plaint the Plaintiffs impugned those suits and the aforesaid delivery of possession as fraudulent. In my opinion they are not entitled to fallback upon these proceedings as foundation for any relief in this suit.

A few contentions urged on behalf of the Respondents have now to be noticed. It has been urged that the appointment of Plaintiff No. 2 as mutwalli by the Plaintiff No. 1 was ultra vires of the powers conferred by the former, and was made not bonâ fide but only to get over the bar of limitation, that if that appointment be held to be invalid, the Plaintiff No. 1 would be incompetent to get any relief on the ground of res judicata, and also that the Defendant No. 20 not having joined as Plaintiff the suit should have been dismissed. So far as these contentions are concerned, the terms of the wakfnama have first to be looked to. It says,—“As regards mutwalliship, after my death, of the two, Haji Alam the elder, and Khetu the younger son of Raju Bibi, my daughter born of the loins of my former husband, the younger Khetu is unfit for the office of the mutwalli; the elder Haji Alam is pious and virtuous and is a fit person; therefore I appoint him and his descendants and heirs in succession to be the mutwallis …. If after my death the said mutwalli Haji Alam himself or his descendants or heirs and representatives in succession be unable to carry on the duties of mutwalli, they will be competent in succession according to their own discretion to appoint a fit person to the office of mutwalli.” Haji Alam died in 1894. By the year 1907 Nabi Bux and Rahim Bux having died the only two persons entitled to the mutwalliship under the wakfnama were the Plaintiff No. 1 Hayatu Bux, and the pro formâ Defendant No. 20 Kader Bux. It does not appear that the latter did anything in connection with the wakf or ever accepted the office of mutwalli and in the deed of appointment Ex. 20 also it is stated that he was unwilling to accept the office. Hayatu Bux, therefore, was competent to appoint another person as mutwalli, provided that he was unable to carry on the duties of the office. This inability might arise not merely from inherent incapacity but from the fact of his continued absence from the country. I do not agree with the Subordinate Judge in so far as he has taken the view that the appointment was invalid because Kader Bux did not join in making it. But I am clearly of opinion that the appointment was not bonâ fide made, but it was made only with the object of getting over, if possible, the bar of limitation. It is curious that in the plaint the cause of action was put down as having arisen in August 1919, the month of the said appointment. This finding, however, will not help the Defendants because the appointment cannot be said to be invalid. Apart from this, the argument as to the bar of res judicata as against the Plaintiff No. 1 Hayatu which is founded on the decision in suit No. 30 of 1910 (Ex. A125) cannot succeed for several reasons amongst which may be mentioned: 1st, that though Hayatu Bux was impleaded in the suit as one of the mortgagors and he set up the title of the endowment and an issue was framed on the question as to whether the properties were wakf properties, no evidence was given on the point, presumably for the reason that he was incompetent to take the plea being himself one of the mortgagors, and for that reason the issue was found against him (vide Ex. A125); 2nd, that the wakf was not represented in the suit; and 3rd, that suit was only for some out of the five plots with which we are now concerned. It follows from what has been said that the absence of the Defendant No. 20 from the cater gory of Plaintiffs does not vitiate the suit; and on this point it may also be mentioned that in the plaint there is a definite statement that he had refused to join as a Plaintiff.

It was contended on behalf of the Respondents Nos. 15 to 18 that the Plaintiffs have failed to prove their title to plot No. 4 and that they themselves have a clear title because of the circumstances referred to in paragraph 11 of the plaint. This matter was not put in issue and though it is incidentally referred to in the judgment of the Subordinate Judge it does not appear that this defence was pressed in the Court below.

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 wrong. 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 mutwalli as to how the endowment was to be administered. These directions can hardly be read as creating merely a charge within the meaning of sec. 100, the Transfer of Property 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.

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 it related to the properties mentioned in Schedule B will be dismissed.

The Subordinate Judge appears to have awarded to the contesting Defendants, namely, the Defendant No. 13, the Defendant No. 14 and the Defendants Nos. 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 separatey 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 fee, namely, Rs. 943-12 as equally amongst the said three sets of Defendants. In other respects the decree of the Court below as to costs will stand.

So far as the appeal and the cross-objections before us are concerned, the appearing Respondents, namely, Respondents Nos. 12 and 13 and Respondents Nos. 14 to 18 will get their respective costs from the Appellants, but the hearing see on the total value of the appeal will be divided between the said two sets of Respondents in the proportion of 2/3rd and 1/3rd.

Guha, J.— 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 Thirtha swami v. Baluswami Ayyar , which might have the effect of overruling the previous decisions given by their Lordships, of which the case of Gnanasambanda Pandara Sannadhi v. Velu Pandaram 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 argument before us by the learned Advocate for the Appellants, the alienation of debutter or wakf properties was by the mohant shebait or mutwalli as such: in the present case, the mutwalli Hayatu Bux Jamadar had, on the 23rd August 1897, alienated the properties in suit by a conveyance with a definite recital that he was dealing with the properties in his own right, as one of the heirs of Haji Alam 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 alienations by a mohant, shebait, a 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 Hayatu Bux Jamadar himself claiming adversely to the wakf must in my judgment be taken to be the date from which the possession of the Defendants became adverse. I would further desire to say in this connection that in 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 debutter or wakf properties by way of lease and that by way of out and out sale as indicated in the case of Raja Manindra Narayan Roy v. Sarat Chandra Bandopadhaya .

So far as evidence of possession relating to plots Nos. 4 and 5 in suit is concerned, it is, to my mind, sufficient for the purpose of defeating the Plaintiff's 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 twelve 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 Kumar Basanta Roy v. Secretary of State for India in Council (7)]. 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 in the cross-objections preferred by some of the Respondents.

S.C.M