The Judgment of the Court was as follows:—

B.B Ghose, J.:— These two appeals arise out of a single suit for partition which has been dismissed by the learned Subordinate Judge. Appeal No. 175 of 1925 is by Defendants Nos. 4 and 14 to 17. The contesting Respondents are Defendants Nos. 1, 8, 11, 18, 34 ???. The representatives of Defendants No. 13 and 27 as well as Defendant No. 36 appear in this Court by their guardian ad litem the Deputy Registrar. These Respondents support the appeal made by the Appellants. Appeal No. 261 of 1925 is by the Plaintiff. Defendant No. 1 who appears as one of the Respondents resists this appeal. There is one common ground between the two appeals, and there are certain different grounds in the appeal preferred by the Plaintiff which will be dealt with separately. The property in question originally belonged to the ancestor of the parties, a gentleman named Syed Bakht Mazumdar. He created a wakf of some of his properties by a deed, dated the 28th August 1867. The Plaintiff asked for partition of the properties comprised in that document in her plaint, and the Defendants who are Appellants in Appeal No. 175 of 1925 and the other Defendants who also support the Plaintiff's suit for partition also asked for partition of those properties. In the appeal, however, the claim for partition with regard to those properties is given up by both sets of Appellants and it is conceded that a valid wakf was created by that deed with regard to the properties included in it. The dispute now is with regard to the question whether the other properties included in the plaint, both moveable and immoveable, are capable of being partitioned. The Subordinate Judge has dismissed the suit mainly upon the ground that the immoveable properties were constituted a valid wakf by Syed Bakht Mazumdar, by a deed, dated the 6th April 1869, which is Ex. 5 in the suit. That being so these properties are not liable to be partitioned. The Subordinate Judge further found that the claim of the Plaintiff was barred by the rule of res judicata and the Plaintiff was also estopped from questioning the validity of the wakf on account of certain transactions which will be stated later on. The Subordinate Judge, however, did not give any reason for dismissing the claim for partition of the moveables. Two other points were raised before us on behalf of the contesting Respondents which were not decided by the Subordinate Judge. The first point was that the suit of the Plaintiff was barred by limitation and the second was that the Court had no jurisdiction to direct the partition having regard to sec. 154(1)(e) of the Assam Land Revenue Regulation. I shall first deal with Appeal No. 175 preferred by the Defendants. Their case is that they are entitled to certain shares in the properties as the heirs of the original owner Syed Bakht Mazumdar. The dismissal of the Plaintiff's suit has affected their right to partition and so they are entitled to present the appeal against the judgment of the Subordinate Judge and to have it declared that the property is liable to be partitioned and to have their shares ascertained. The most important question in this case is with regard to the validity of the wakfnama, dated the 6th April 1869, Ex. 5. I do not think it is necessary to recite the contents of the document in detail. I think it will be quite sufficient to give the important provisions of the deed. These are as follows:—

“In order to perpetuate the names of my ancestors and to keep the properties intact for ever. I, with full reliance on God, do hereby make wakf of all my properties, etc.….. for the benefit of my children, etc., how low soever and in their absence, of the poor kinsmen and relatives, mendicants, people destitute of all means, widows and orphans for all time to come, etc.”

Para. 3.—“That so long as I shall be alive, the family expenses and the allowance, etc., of the beneficiaries shall be what I have mentioned to day in the list which I have made over to the mutwali and the amounts mentioned therein shall remain fixed, or the same may be varied in future, if I think fit.”

It is then provided that after defraying all these expenses the surplus income shall be deposited in the tahabil of the wakf and it is further provided that with that surplus income other properties should be purchased.

Para. 7.—“That properties would be purchased for all the beneficiaries under the wakf out of the money which would remain as surplus after paying the monthly allowance, etc.….. If no property be purchased, then two-thirds of the said surplus money should be divided amongst the beneficiaries under the wakf at the end of the year……”

Para. 9.—“That should a male mutwali die, his children would get the allowance due to him; and as regards my daughters, the mutwali shall have power to vary the allowance fixed for them at present and to pay or withhold payment of the allowance due to them to their children after their death; and should any of the beneficiaries under the wakf die childless and unmarried, his monthly allowance should form part of the tahabil of the trust and should be distributed amongst the other beneficiaries under the wakf or amongst some of them at the discretion of the mutwali.”

Then there are certain other paragraphs which provide for charitable uses if the descendants of the settlor became extinct.

Para. 18.—“That be it mentioned that I am not indebted to any person till now; and I make this wakf for the benefit of my lineal descendants and in their absence for the performance of my religious duties and for spending money for pious purposes.”

It would appear on a mere perusal of this document that the provisions for the benefit of the settlor's family are invalid as constituting a wakf under the Mahomedan law, and it is settled that they are not validated by the Mussalman Wakf Validating Act of 1913, which is not retrospective. This has been decided by a series of cases which I need only mention. See the cases of Sheikh Mahommed Ashanulla Choudhuri v. Amar Chand Kundu , Abdul Gafur v. Nizamuddin and Abdul Fata Mahommad Ishak v. Rassomoy Dhur Choudhry , (a case coming from the same district as this, and the document in that case bears a strong resemblance with the document we are dealing with in this case), Mujibunnissa v. Abdul Rahim , Moulvi Saiyid Mahommad Munawwar Ali v. Razia Bibi and Khajeh Solehman Quadir v. Salimulla Bahadur .

It has, however, been argued on behalf of the Respondent that upon a true and proper construction of this document it should be held that it has created a valid wakf. Reference is made to the fact that under para. 9 it is stated that only the children of the beneficiaries would be entitled to the allowances under the wakf and it is urged that the intention of the testator was that after the death of all the children of the beneficiaries, the whole of the properties should be distributed for charitable purposes. This was sought to be supported by a rule of construction enunciated by the learned Advocate for the Respondent. It is stated to be this, that the first endeavour of the Court should be to find how a settlement made in a document may be held to be valid in law and then to put such meaning to the words as would make the settlement valid. The proposition seems to me to be somewhat novel. I should have thought that the true rule of construction is to find out the intention of the testator or settlor from the expressions used in the document itself, and then to apply the law as to whether the intention so expressed is valid or not. If, however, it so happens that it is possible to construe a document in two different ways the Court may accept the construction which would make it valid. It seems to me that in this case there cannot be any doubt whatsoever that the settlor intended, as he distinctly said, to perpetuate the names of his ancestors and to keep the property intact for ever and he has repeated in clear terms, “it is for the benefit of my children, etc., how low soever and in their absence for charitable purposes.” I do not think it necessary to say anything further upon the point as it seems to me that this deed of wakf falls within the decision of those cases I have referred to and is invalid.

The Subordinate Judge has held that there was a good valid dedication because in the schedule to the document certain charitable purposes are mentioned. They may be detailed here:—

per month per year Lighting costs of the Musjid Re. 1-8-0 Rs. 18 Sadabrat, i.e, feeding of travellers … … Rs. 10-0-0 Rs. 120 Charity on Fridays … Rs. 4-0-0 Rs. 48 Expenses during Sabebarat, etc. … … Rs. 170 Prices of cloths given to the poor during winter at the discretion of the Mutwali …… Rs. 100

These altogether amount to Rs. 456 per year. The income of the property is stated to be about Rs. 10,000 per year. This gift for charity seems to be so small in comparison with the income of the property that the gift for charities may very well be considered to be quite illusory. As was observed by their Lordships in the case of Sheikh Mahommed Ashanulla Choudhury v. Amar Chand Kundu that “there is no reason to suppose that the charitable uses would absorb more than a devout and wealthy Mahomedan might find it becoming to spend in that way.” It is quite inconceivable that a person enjoying an income of Rs. 10,000 a year would not spend Rs. 456 a year in these small charities which even poorer families in this country, whether Mahomedan or Hindu, spend for charitable purposes. A gift, as has been laid down in several of the cases decided by the Privy Council, may be quite illusory if the amount to be spent in charity is very small in comparison with the income of the property. A lengthy and a persistent argument was addressed to us with the object of showing that this wakf is quite different from the wakfs dealt with by their Lordships of the Privy Council in the cases I have referred to. Long extracts from the various judgments were read out to us in order to show that the wording in the document is different or that the income of the property was different and the amount which in the various cases was directed to be spent in charities was different from the amount stated in this particular case. In my opinion, this is not the proper way in which the validity or otherwise of the document in question should be decided with reference to the cases.

If I am right in my view that the document we have been dealing with does not constitute a true and bona fide gift for the benefit of the poor, but was created for the benefit of the family of the settlor, then these minor differences in the language or in the amount of money to be spent would not take the case out of the decisions of their Lordships of the Judicial Committee. In my view, therefore, the Wakf is invalid under the Mahomedan law and this being secular property is liable to be partitioned amongst the descendants of the so-called settlor Syed Bakht Mazumdar, who have inherited their shares according to law.

The next question that I have to deal with is the question of res judicata. Shortly stated the point arises in this way. One Hamid held the office of mutwali of the properties at a certain time. Majid, an ancestor of the Plaintiffs, had contracted certain debts. The creditor attached some of the properties included in the deed of wakf in question in order to recover his dues from Majid on the allegation that Majid had a certain share in the properties. The then mutwali Hamid preferred a claim. The claim of the mutwali was disallowed by the trial Court on the ground that the wakf was invalid. A rule was obtained by the mutwali and this Court set aside the judgment of the trial Court on the ground that in the matter of the claim it was only necessary to see whether the claimant was in possession and, if so, whether he is in possession on behalf of the judgment-debtor or not and as it was found that the claimant was in possession but not on behalf of the judgment-debtor, the rule was made absolute and the properties were released from attachment. Then that creditor Buktar Chand Mahata brought a suit against the claimant as well as Majid and this suit was dismissed. An appeal was preferred to the High Court which was not proceeded with and that was dismissed for default. The question of res judicata arises upon these proceedings. It is contended by the learned Advocate for the Respondents that the judgment-debtor was bound by that decree as against the claimant by the principle of res judicata. His argument is this, that the judgment-creditor brought the suit both against the claimant as well as the judgment-debtor with the object of having it declared that the property belonged to the judgment-debtor and not to the claimant. The question of the right of the creditor could not be decided in that case without deciding the respective rights as between the judgment-debtor and the claimant and as that question was decided in favour of the claimant, the judgment-debtor was as much bound as the judgment-creditor by that decision. It seems to me that proposition cannot be supported on principle. On behalf of the Appellants reliance has been placed on the case of Shivapa v. Dod Nagaya (7) in support of the contention that the judgment is not res judicata. The learned Advocate for the Respondent points out that the judgment-debtor not having been a party to the suit brought by the judgment-creditor against the claimant that judgment was held to be not binding as res judicata as against the judgment-debtor. It is not quite clear from the report whether the judgment-debtor was a party Defendant in the suit brought by the judgment-creditor. But in order to see whether the proposition put forward on behalf of the Respondent is sustainable, the question may be tested in another way. Suppose the judgment-creditor loses in the suit brought by him for the purpose of establishment of his right to attach the property as against the judgment-debtor, does the decision have the effect of establishing that the property belongs to the claimant absolutely so that if another judgment-creditor attaches the same property on the ground that it belongs to the same judgment-debtor, would he be defeated by the previous judgment having the force of res judicata? The learned Advocate conceded that it is difficult for him to contend that it would be so. But if the judgment-debtor is for ever debarred from advancing his claim to the property as against the claimant by the previous judgment it seems to me that the result would follow that any body claiming the property through him would also be similarly barred. As this seems to me to reduce the proposition to an absurdity, in my opinion, the judgment against the creditor who sought to attach the property cannot operate as res judicata an against the judgment-debtor in a suit brought by him against the claimant.

The next question is one of estoppel which arises in this way. Majid, the ancestor of the Plaintiff, held the office of mutwali under the document for some time. During that period he made a petition for being adjudicated an insolvent and in opposition to the claim of a creditor he stated that the properties attached by the creditor were wakf properties as he was in possession of these properties as the mutwali of an endowment. Upon that, the District Judge held that the properties were held by the insolvent not in his own right but as mutwali and he directed that the properties should be released from attachment. How this can operate as an estoppel it is difficult for me to understand. There was nothing done by Majid to alter the position of the contesting Defendants or their ancestor. By his act he rather saved the property from being taken possession of by the Receiver. The learned Advocate for the Respondent relied on the case of Mahommad Ibrahim v. Abdul Latiff (8) in support of his contention that Majid would have himself been estopped from asserting that he was not the mutwali. The question has been elaborately discussed in the case of Alamgir Khan v. Kamrunnessa Khanum (9). The principle seems to me to be this. If a person takes possession of certain property as a mutwali and holds possession of it on that basis, he cannot afterwards turn round and say that the wakf being void, he was in possession in his own right and claim the property as his own as against the beneficiaries. Having come into possession under one title, he cannot improve his position by asserting that title was non-existent, but he held under some adverse right which extinguished the title of the beneficiaries under the deed by virtue of which he entered into possession. This is not the position here. Here, the mutwali was in possession and was distributing the income to the beneficiaries. Could he not say to the beneficiaries, “Now I discover that the settlement in wakf is void, I have no right to hold the property as mutwali, you are really the owners of the property and I am only entitled to hold a share as the heir of the grantor. So you may get your shares if you like and I am willing to part with the possession of the properties as mutwali in your favour.” It seems to me that there cannot be any estoppel as regards that position being taken by the mutwali. This finishes the points on which the Subordinate Judge held that the suit of the Plaintiff was liable to be dismissed.

The two points with regard to res judicata and estoppel do not affect the appeal of the Defendants (in Appeal No. 175) except the Defendant No. 4. The other Defendants Nos. 14-17 would, in any event, be entitled to ask for partition of the properties if the wakf is a void document. That being so, I do not see any ground upon which it can be held that the suit should fail on any of the grounds which affects the Plaintiff or Defendant No. 4 individually.

Next, I should deal with the two points raised by the learned Advocate which were not dealt with by the learned Subordinate Judge, because he dismissed the suit on the other grounds. The first is the question of limitation. The contention on behalf of the Respondent is that the mutwalis having been in possession from the date of the wakf in 1869 down to the date of the suit in 1922 they had acquired a title by adverse possession and the present mutwali Defendant No. 1 is entitled to resist the claim of the Plaintiff as well as the appealing Defendants on the ground of adverse possession. In support of the contention, the cases of Churcher v. Martin (10), Kherodemoney Dossee v. Doorgamoney Dossee (11) and Mahommad Ibrahim v. Abdul Latiff were cited. I do not think it necessary to recite the facts of these cases. It seems to me that these cases simply lay down the rule that where trustees take possession of any property under a trust which is not valid under the law, their possession is as much adverse to the lawful title as the possession of any other trespasser and if the possession of those so-called trustees is for a sufficient period, the rightful owner may very well be met with the plea of limitation under the statute. The question here seems to me to be quite different. The learned Advocate for the Respondent has argued that here the mutwali was a trustee and he has acquired the title as trustee by his adverse possession. The mutwali, however, has no legal estate in the property. This has been well settled. See the cases of Vidya Varuthi Thirthav. Balusami Ayyar (12) followed in Abdur Rahim v. Narayandas Aurora (13). But it is argued by the learned Advocate for the Respondent that the successive mutwalis were in possession on behalf of the Supreme Being and, therefore, he may assert the title on behalf of his principal as against the Plaintiff and the appealing Defendants. But the fact is not so. If the dedication had been to the Supreme Being, then no question of adverse possession would arise but the Plaintiff would fail on the ground that he and his co-sharers have no title to the property. It was only a fictitious gift to God. The real object was to tie up the property for the benefit of the descendants of the settlor and the descendants were getting the benefit out of the property all along and not the Supreme Being. Under such circumstances, it is very difficult to see how the question of limitation arises. Moreover, it is pointed out on behalf of the Appellant that the evidence shows that the several co-sharers were in actual possession of the properties by collection of rents; and there is one document on the record which shows that the contesting Defendant even after the suit has taken a patni in the name of his son from Defendants Nos. 4 and 14 to 17, that is, the Appellants in the Appeal No. 175. It is urged on behalf of the Respondents that this was after the date of the suit and ought not to have been used as evidence in the case. But it seems to have been admitted without any objection. Whatever that may be, there is no reasonable ground for holding that the possession of the preceding mutwalis was ever adverse to the descendants of the original settlor. The plea of limitation must, therefore, fail.

Lastly, the question of jurisdiction under the Assam Land Revenue Regulation may be dealt with. It is quite true that under sec. 154(1)(e) read with sec. 96 of the Act, partition, whether perfect or imperfect, of revenue-paying properties must be made by the revenue authorities. But the jurisdiction of the Civil Court to determine the rights of the parties to the property in dispute as well as the shares to which they are entitled have not been taken away by the regulation in question and the Civil Court must also decide whether the property is liable to partition or not; as in this case, whether there is a valid wakf which prevents the parties from seeking a partition of the property. The Plaintiff as well as the appealing Defendants are entitled to obtain a declaration from the Civil Court that they have got the right to obtain from the revenue authorities a separation and allotment of their shares in the estate according to their proportionate rights. It is further pointed out by the Appellants that all the properties in suit are not revenue-paying properties. These must be partitioned by the Civil Court. It is also alleged that the parties are in possession of separate parcels of lands being only shares in certain revenue-paying estates. These do not fall within the provisions of the Assam Regulation. The moveable properties should also be partitioned and the Court should also give an opportunity to the Plaintiff for finding out whether there are any other properties which are capable of being partitioned. The actual partition of revenue-paying estates must necessarily be made according to the provisions of the Assam Land Revenue Regulation.

The appeals are, therefore, allowed and the case sent back to the trial Court for a decision as to the properties which are liable to be partitioned by the Civil Court and to make a partition according to the shares of the parties. If it is found by the Court that revenue-paying properties have to be partitioned among the parties, the Court may declare the share of each of the parties and leave them to go to the revenue authorities for making the necessary partition.

The Appellants are entitled to their costs in Appeal No. 175 of 1925 against Defendant No. 1 and Defendants Nos. 8, 11, 18, 34 and 66. The Appellant in Appeal No. 261 of 1925 is entitled to her costs against Respondent, Defendant No. 1. The hearing-fee in each case is fixed at 20 gold mohurs. The Plaintiff will get her costs of the lower Court from the Defendant No. 1 and Defendants Nos. 8, 11, 18, 34 and 66. Further costs of the lower Court will abide the final result.

Roy, J.:— I agree.

S.C.M