until all tlie Cseditors were on an equal foot~ng% It is only a d ~ f f e ~ e n t ~ua l i~ca t io i i

or ~ o d i f i c a ~ i o ~ ~ of the specific relief prayed.

We are of opinion, therefore, that as the Plaintiffs had an equity to obtain son^

relief under the Bill, the demurrer ought not to have been allowed, and the Order

of the Court below must be reversed.

[Mews’ Big. tit, ~ ~ ~ ~ R U ~ ~ C ~ , h 111. ~ ~ ~ ~ ~ N ~ R ~ ~ ~ ~ ~ ~ R ~ P E R ~ Y ,28” EL. iv., VIII. hi-

DENDS, 1 ; tit. EXECUTOR AND ADMINlSTBATOR, X. ADMINISTRATION, d. ; tit..

PAYMXNT, A, I. ; tit. PRACTICE, X W , PLEADING, b. S.C. 3 Moo. P.C. 98 ; 1

Mont. I?. and D. 45; hllorton, 407. See Indian Insolvent Act,, 1848 (11 and 12

Vi& c. 2I>, s. 7; Ex parte Bogem, 1881, 16 Ch. D. 665; c ~ ~ e , ~ e ~ v. ~ ~ o ~ o ? ~ ~ ~ ~

~ e ~ ~ ~ ~ ~ r ~ of Augos { ~ ~ 9 1 ) , k.C. 460; Coohe v, ~~~ r~~~ A . Togeler Co. { ~ 9 Q ~ ~ ,

A.G. 102 j Dicey, Cloi@. of Lnu~s, 334, -736 ; Westlake, Priv. lm8. ZLZZV, 3rd Ed.

253, 156, 157.1

~~~~~ DOSS S ~ ~ ~ ~ , - ~ ~ ~ e ~ ~ ~ ~ t ~ S ~ A ~ g U B E E I t - 0 0 D - D E E N , - ~ ~ ~ ~ o ~ ~ ~ e ~ z ~ *

[Dec. 8, 9, 18405.

On ~~~e~~ fvoom the , ~ ~ ~ ~ ~ e ~ I k E m q a y A ~ ~ w ~ u t &a ~ e q ~ ~ a ~ .

The term *‘ Altarnyka ” or (‘ - ~ ~ ~ a n ~ ~ l ~ ~ - ~ ~ a ~ ~ 7 in a royal grant, does not, of ibselt’,

convey an absolute p r o p r ~ e ~ a s y right to the Grantee ; n-here, from the general

tenor of the grant, it is to be inferred, that a Wukf, or endowment to religious

and c~~ar i tab le uses, was inte~~ded, and property so endowed cannot be alien-

ated by the Grantee or his r e ~ ~ e s e n t a t ~ ~ e s t2 &loo. Ind. App. 4201.

According to the Mahomedan Law, it is not necessary, in order to constitute iz

~ ~ u ~ ~ f , os e ~ i d o ~ m e n t to r e l ~ ~ ~ o u s and eharitable uses, that the term Wukf ”

be used in the grant; if, from the general nature of the grant, such tenure

can be inferred [ a Moo. Ind. App. 4217.

An ~ n d o ~ m e n t for charitable and public purposes being a perpetual ~ ~ d o ~ v ~ n e n ~ ,

i t is, by Ben. Reg XIX. of 1810, the duty of the Govern~ent o preserve its

appl i~a t io~i J and being excepted by sec. 2. of Regulation 11. of 1805 from the

general op~~ ,a t ion f the ~ e ~ u l a t i o ~ i of ~ ~ ~ i t a t ~ o ~ s , no suit for its recovery

is barred, until at least the officer entitled to administer it has been in posses-

sion of his office for twelve pears 12 Moo. Ind, App. 422, 4231.

By a Pirman, or royal grant, of the 14th of March, 1717, in the fifth year of

~ ~ a h o m e d Feroksir, one lac @j1j of dams from F e r ~ u n n a h ~ a v i i l y Suhseram, in

the Sooba Bahar, being equal to about Its. 1197, was granted in Altam~ha, or royal

free gift, in perpetuity, for the purpose of defraying the expenses of the Khankah,

a religious e s t a b ~ i s h ~ e n t of Sheikh Kubeex., Dervish, to descend to his heirs i r t

success~on.

In pursuance of this grant, Sheikh Kubeer received the revenue during his life,

a p p ~ ~ ~ n g it for the purpose of meeting the charges of Travellers frequ&~~ting the

~ h a x ~ k a ~ i , of which he was the Si~jada-nash~n, or Superior. Upon his death he was

succeeded in his office by his Son, Sheikh ~ h u ~ l e e i ~ o l l a .

y a Sunnud from Nawab ~ u k h e r - o o d ~ d ~ n Bahadoor, on the 16th Sheban, and

the f o u r t e e ~ ~ l ~ year of the reign of ~ahorned Shah Badshah (21st January, 1733),

certain Mouzahs or villages in the Pergunnah Suhseram, in the Sircar or division

RowtaI, Sooba Bnhar, with some Tutera aud Khankah lands, were a ~ p s o p r i ~ t e d for

the purpose of meeting the expenses of Travellers, and of Sheikh ~ ~ u i l c e l ~ o l ~ a ~

and freed from the Gover~ment charges and ~evenues. Upon the death of Sheikh

~ l ~ ~ ~ l e e l - o o ~ ~ ~ , ie wa8 succeeded, as S i j j a d a - ~ ~ ~ ~ l ~ ~ n , by Gholarn ~ ~ u r f - o ~ d - d e e ~ , h i s

Son, who, on the 6th of July, 1744, obtained a royal Sunnud, and on the 4th of

* Present : ~ e ~ b e r s of the ~~~~~~ ~ ~ ~ ~ ~ ~ ~ ~ e , - ~ o r d ~ r o u ~ ~ a ~ , hlr. justice

B o s a ~ ~ u e t , hlr. Justice Erskine, and the Right on our able Dr. bushing to^.

Privy Councillor,--Assessur,--Xi r Edward Ryde East, Bart..

-- ~ - -“x - - I -- ___- - ___ I_ - 111 __ ~ __

348

’U. SHAH KUBEER-OOD-~EE~ [I8401 11 MOORE IND. APP., 392

December in the same year a royal Perwaniiah, confirining him in the dams

originally granted to his paternal Grandfather, Sheikh Kubeer.

Shah Kaim-ood-deen succeeded his Father, Gliolam Shurf-ood-deen as Sijj ads-

nashin, and obtained a like Pe r~ ,a r i i~a~ i to those granted to his Father and Grand-

father, and by a Firman of Shah Alum, dated the 13th of October, 1762, a further

grant of 2,81,000 dams from the Pergunnali Suhseram was made to hini in Altamglia-

[392]-enam, for the purpose of defraying the expenses of the frequenters to arid

from him, and all ranks were enjoined “ always to maintain aiid uphold the august

order, and to relinquish the aforesaid dams to them to descend t u the offspring in

succession, to be enjoyed by them,” free from all Government and revenue charges.

On the 10th of January, 1764, Mahomed Jafir Khan augmented the revenues of

the Khankah by rhe grant of certain Ayeema (charitable grants made by the Sovereign

to religious ~ a ~ o ~ ~ i e d a r i ~ ) Decliauts, consist in^ of fourteen Mouzahs in thc s a ~ c

Pergunnah; arid he executed a Sunnud for that purpose.

Shah Kiani-ood-deen was succeeded as Sijjada-iiashin of the Khaiikah by l l i h

Son, Shah Shumsh-ood-deen, who, on the 2’7th of January, 1807, soine tiriie after

he had been in possession, entered into a contract with the Appellant, Jewu~i Doss

Sahoo, for the loan of Rs. 23,501, and, as security for the repayment thereof, traris-

ferred sixteen Xouaahs, comprised in and consti tutin~ part of the a b o ~ ~ ~ i n e ~ ~ t i o I i ~ d

grants. AR tlie Revenue authorities did riot register mortgages or conditional con-

veyances, Shah Shumsh-ood-deen a t the same time executed an absolute Bill of sale,

conveying the Mouzahs to the Appellant, and the Appellant, as is usual in such

transactions, executed a Meadi Ikrarnamah, or defeazance ; which provided, that if

Shah Shurnsh-ood-deen repaid the sum advanced on or before a particular day, tlie

sale should be void, but if he did not repay that sum within the stipulated period,

tlien the Mouaahs should become the absolute property Qf the Appellaiit. Shortly

after the execution of these instru~ients, the Appellant entered into possession

of the Mouzahs.

The loan was not repaid within the stipulated period ; but in consequence of the

Appellant not having taken the course provided for by Ben. Reg. SVII. of 7806,

the Mouzahs still remained in the possession of the Appellant, according to the terms

of the conveyance above referred to, subject to the right of redeirtption by Shall

S h u ~ s h ~ o d - d e e n , the Mortga~or.

On the 13th of Magh, 1217, Fusly (2nd February, 1810, A.u.), Shah Shuiuslt-ood-

deen, in consideration of i~ further sun? of Rs. 5000, executed aiiother Ilirai uaaiah,

conveying the Mouzahs to the Appellant absolutely.

On the 3rd of February, 1810, the day after the execution of the above Ikrar-

namah, Shah Shnmsh-ood-deeu died, leaving Mussuniat Kadira, his Widovi., and

Shah Kubeer-ood-deen, the present Respondent, his Son, an infant of the age of

twelve years, hereditary successor to the Sij jada-nashin.

Shah Shun~sh-ood-deen attained the age of eighteen in the year 1816, nisen he

preferred a petition to Mr. John Deane, the, Co~missioner of Batiar and Benares,

asserting his right atid title to the whole of the lands above stated. Mr. Dean

directed inquiries to be made by the local Agents, who, on the 10th of December,

1818, reported in his favour, and thereupon orders were issued by the Governor-

General in Council, on the 29th of February, 1819, and the 8th of Septeniber, 1522,

that the ~ ~ ~ p o n d e n t ! Shah Shunish-ood-de~~i, should recover possession of the pro-

perty by assistance of the Officers of the ~ ~ ~ ~ e r i i ~ ~ i ~ ~ ~ t .

In consequence of these proceedings, the Respondent commenced two suits in the

Provincial Court of Patna 13941 for the recovery of tlie villages which had beeu

alienated from the Khankah. Some of these villages being in the postwsaion of one

Mussumat Kadira, or Beeby Isniut, a suit was instituted against her ; and for the

recovery of the Mouzahs taken possession of by Jewun Doss Snhoo, under the circum-

stances above stated, a wit was brought against him on the 17th of April, 1822, 111

tlie plaint filed in this latter suit, the Plaintiff set forth his title as already detailed,

and insisted that the Mouzahs in question were Wukf (in Mahon~eda~t law, a bequest

for pious uses) propaty, of which, neither a conditional nor bona fide sale could be

made : he insisted also that the sale was in itself illegal, not being perfected according

to Ben, ReguIation SVII. of 1806; and he prayed to be put in possession of tht.

annual produce, being Rs. 3678. 10+, the eighteen-fold of qhich was Rs. 66,179. 3a.

349

11 BOORE INL). APP.* 596 dEWUN DOSS SAHOO

On the 28th of June, 1822, and before any answer had been put in by the

~ ) e f e ~ ~ d a n t in this suit, the P r ~ v ~ n c ~ a l Court of Patna made a decree in the other

su i t against Itfussurnat Kadira, or Beeby Ismut, whereby they declared, that it

a p ~ ~ e a r e d from the d o c u ~ ~ e n ~ , a ~ ~ o n g which were the two royal ~ i r m a n s above stated

and the evidence and opinions of the ~ a ~ f - o ~ c e r s of the Sudder Dewaany Adawlut

in a cause therein referred to, that lands, which were Wukf, could i lot be alienated

to any other persoit by sale or gift, nor could they be inherited as heritable property,

or mortgaged o r sold condit~onally, The Court went on to declare, that i t was not

in thc power of any of the former Sijjada-nashins to alienate the Altamgha and

other darns, or the Dehauts, in favour of any one, or to sell or otherwise dispose of

the property; a decree was, E3953 therefore, passed in that suit in favour of the

P ~ ~ i I ~ t i ~ , the present Respoiide~t, from which decree ~ u s s u ~ a t Kadira afterwards

appealed to the Sudder Dewanny Adawlut; but the decree was, on the 24th of

hugu&, 1824, a f f i r~~~ed by the Sudder De~anI iy Adawlu~.

On the 9th of Narch, 1824, the present Appellant put in his answer, ilrsisting

upon the legality of the sale to him, that it was a hoim fide sale, and not within Ben.

Regulation XVXI., 1806, and that, had riot the Dehauts been alienable, the Collector

would not have entered the name of the ~ e f e n d a n t in the public Books, and he also

set up the lapse of time as a bar to the Plaintiff‘s claim. We contended moreoves,

that the conditioi~a~ sale had become absolute, and that a further advance of Rs,

5000, having been made, a new con~eyance was executed to the. A ~ ~ p e l ~ a n t , aiid the

power of redeini~tion ext~nguished, and insisted that the property in question was

legally saleable.

In his replication the Respondent relied upon his minority, to prevent the lapse

of time from barring the claim.

The suit between the parties to the present appeal being at issue, evidence wag

produced by the Respondent c o n s i $ t ~ ~ g of the several documents already stated,

~ o r ~ i r ~ g aud cstabl~sli in~ his title, and proving thc nature of the Uehauts or villages

in question, and the objects for which they were granted ; the different Perwannahs

and ~uni luds c o n ~ r m i n ~ the ~espoi~dent’s ance~tors in the possess~on ; two opinions

of the Lawofficers upon the tenure of the lands, showing, that by the ~ a h o m e d a n law

the sale or rnortgage of TjVukf lands was illegal, and that the Iands in quest~on were

of that description. The Defendant also produced documentary evidence, consist-

ing of the instruments [39#j] by which the c o n d ~ t ~ o i ~ a ~ sale in 1809 was effected,

and the document which he purported to be the absolute conveyance and sale relied

upou.

0x1 the 29th of December, 1825, the cause came 011 for hearing before Mr. Flerniirg,

the Third Judge of the Provincial Court of Patna, when the following judgment

was given :---“ That the ~ e f e ~ ~ d a i i t (present appellant^ admits, that the disputed

~ e h a u t s were sold to him coxid~t~onal~y, and yet he did not fulfil the condi~~ons of

Ben. Regulation XVII., 1806, to render the transactions a 60% fide sale: and as to

the second ~ ~ r a r i ~ a r n a ~ i , executed by Shah S h ~ s ~ - o o d - d e e n , the date of the execution

of which is one day only before the death of the said Shah, which fact the Defendant

does not deny, is invalid; in add i t~o r~ to which, accoi.ding to the decision pro-

nounced by the Sudder Dewanny Adawlut, a conveyance like this is not legal, Upon

a c o ~ ~ s ~ d e r a t ~ o n , therefore, of all the c ~ r c u ~ s t a n c e s attendant on this transact~on~

the coIiditiona1 sale stands in the character of a mortgage ; it, therefore, becomes

~ ~ c c e s s a ~ y to take up an account of the produce of the said ~ e h a u t s , and the principal

and interest that is receivable by the Defendant;” for which reason it was ordered,

that the Uefendai~t should, within fifteen days, file the Wasilat {acco~~~i t s showing

the mesne profits) papers from the Fusly years 1814 to 1832, agreeably to the intent

and meaning of Regulation XV. of 1793.

The Appellant, Jewun Doss Sahoo, dissatis~ed with this decision, presented a

~ e t ~ t i o ~ ~ to the r o v ~ n c i a l Court, praying that witnesses might be exam~~led touching

the execution of the second ~krarK~amah. which the Court had in its decree held t a

be illegal; but this a p p l i c a t ~ o ~ ~ was refused, as the ground on [s7] which the

Ikrarnarna~ had been deemed invalid had been recorded in the previous proceedings

of the Court.

The Appellants took no steps to bring these decrees under appeal; but the

~ub$e(~ue~ i t proceedings in the Provincial Court, up to the decree of Mr. Steer, of

330

'U. SHAH KUBEEB-OOD-DEEN [1840] If XOORE ZND. APP., 398

the 25th of June, 1827, related to the ~nquiries into the annual value of the pro-

perty. The Appellant filed certain revenue papers called Junmia-bundi and J~mma-

khureh, to show the collectioris received by him whilst he w a s in possession ; and

these papers were referred to the Provincial Court of Benares (where the Defendant

resided), in order that they might take the Defendant's acknowledg~e~~t of their

genuineness arid accuracy. In pursuance of this reference, the Provincial Court

of Beriares s u ~ ~ ~ o n e d th Appellant, who, after procuring a delay of fifteen days,

put in a petition, wherein he again insisted on the ~enuineness and legality of the

Ikrarnamah, but did not produce any evidence in support of the Jumma-bundi and

Jumma-khurch papers, though he swore to the entries therein being just and true.

On the 19th of September, 1826, the cause came on again before the Provincial

Court of Patna, when an Order was made to suspend the proceedings for one week,

to allow the Plaintiff to produce evidence to falsify the Jumma-bundi.

During the prosecution of this cause in the Provincial Court, the Resporide~~t had

also been prosecuti~~g against Sultana and Ru~~eex~-ood-a~e i~ nd otlters, a cauw

(No, 803) in the same Court, relating to the Talook Ahunpore, which contained sonw

of the Ilfouzahs originalIy granted for the expenses of the Khankah, and which were

claimed by the ~ e f e n d a I ~ t s [398] in that suit, under an alleged sale by the P l a i n t i ~ ' ~

father.

That cause (No. 803) came on to be heard before William Steer, Esq., the fourth

Judge of the Provincial Court, on the 25th of June, 1827, when, deeming the ease

to be of the same nature as the present appeal, he proceeded to take both suitq inro .

consideration, and after stating the various documents already set forth, pronounced

the following judgment :-'' That i f the conditional sale writing had stood, in thrit

case a bonac fide sale could not have been effected without acting up to the provisions

of l~egulatio~i XVTI., 1806; but as the conditiond sale did not stand, but Shalt

dhumsh-ood-deen having talren a further sum of Rs. 5000, returned to the Defendant

the I k r a r ~ a ~ i a l i which this individual had executed, purporting to be a conditional

sale, and eveu executed in the D ~ ~ e n d a ~ t ' s favour, another statement upon tthc

subject thereof, which transaction made the affair terminate in a bo92a- fide sale, arid

that, circunistan~e took place more than fifteen yeitrs, reckoning to the period thc

suit was brought,-ju~t~ee IION demands, that after the lapse of so long a tirrte, the

De~endant shall not be deprived of the full and &cvtaa f ide d e , and be dispossessed.

A s to tlie Plea of the Plaintiff adduced a t this time, after the period of limitation has

gom by, that the Ikrarnamah dated the 13th of Magh, 1217, F.S. (2nd of Pebruar)-,

lSlO), was written only one day before the demise of Shah Shumsh-ood-~eei~, Itecauw

of the return of the Ikrarnamah executed by the Defendant under date the Srd of

the month of Magh, 1214, F.S. (27th of February, 1807), that cannot be admitted bp

the Court. Had the assertion been founded on fact, it is certain that tlie objectioii

would have been made a t about the ter-[399]-~~inat~on f the period of I i i ~ ~ i ~ a ~ i o I i ,

or before that time. There can be no doubt, besides, that in the manner the Delrauts

and lands that were litigated in cause 803 have been sold, the Dehauts litigated i i I

the present suit have been sold, in tlie character of a born fide saIe after the period

of the conditional sale expired, and the grounds on which those lands were deemed

not to be a Wukf endowment have been recorded in the proceedings holden in t h ~ i

caxise. For the above reason it is ordered, thnt the Z'Iaintiff's cIaim is d ~ ~ ~ r ~ ~ s s e a ,

and he is rendered liable to pay the whole of the costs of suit."

The Respondent appealed from this decision to the Sudder Dewanny Adawlut.

and filed his petition on the 23rd of September, 1829.

The Appellant, Jevviln Doss Sahoo, after objecting tu the security of the R t ~ -

spondent, which was overruled, put in his answer to the appeal on the 30th ~ i '

December, 1829.

On the 18th of February, 1830, the cause, after some preliminary proceedings,

came on for judgment before the Sudder Dewanny Adawlut, when the Court ordered

and declared that the claim and appeal of the Appellant (the present R e s p o ~ ~ d c ~ ~ ~ ~

should be decreed to him, and the dtqision of the Patna Provincial Court reversed ;

that the Appellant (the present R ~ p o n d e n t ~ , without being subject to the paymerit of

the ~ure l iase-n~one~, should be put in possession of the Mahal in dispute, and that

rlxe costs of both parties should be defrayed respectively by each.

From this decree the present Appellant appealed to His late Majesty in Council.

35 1

I1 MOORE IND. APP., 400 JEWUN DOSS SAIIOO

Mr. Miller. Q.C., Mr. Wigram, Q.C., and Mr. Jackson, for the A p p e l l a i ~ t s . ~ ~ ~ ]

This is a question of considerabIe importance, involving one of the most difficult

points of Ma~ion~edan law: it i s the first of this nature that has been appealed to

England. It resolves itself into three heads ; frst , whether the property which was

purchased by the Appellant from the ltespondent’s Father vas of that description

called .* Wukf,” which is altogether ina l~~nable , inasmuch as it is giren to an insti-

tutian of a religious nature for charitable purposes ; secondly, assuming it to have

been of thxit nature, whether the Respondent wtis competent to institute a wit for tlie

recovery of the lands so alienated ; and, lastly, whether the Respondent was not

pecluded and ltarred by the Appellatrt having held possession under a f:iir title, he

being it purchaser for a. valuable CoI~siderat~cii~ without notice, for twelve years

Iwfore the commencenient of tlie suit.

I. It i s necessary, in order to arrive at a true conclusion of the tenure of ?his

property, to look at the language of the Firmaxis and Sunnuds, by virtue of which

the lands are held. The vords of the first grant by Mahonied Feroksir, dated the

14th of March, 1717, are, “ that one lac of dams from Pergunnah Havilly Suhseram

in Sooba Bahar are endowed and bestowed for the purpose of defraying the eipensas

of the Kliankah of Sheikh Kubeer, Dervish,” as an Altamgha grant, for ’‘ him to

manage and control, and to descend to his heirs in succession from remove to re-

more.” Sow, it is clear that the expression contained in this grant, ‘‘ for the purpose

of defrayiirg tlrc expenses of the Kliankah,” etc., is altogetlier destroyed by the

limitation to the heirs : the grant is to Sheikh Iiubeer, in the same way of limitation

from remove to remove. It seems strange that lands limited to heirs should have

been treated by the Courts below 8s [401] lands necessarily given for charitable

purposes. The second grant of the third year of Shah Alum is in term nearly similar,

?)eing granted as an “ Altamgha-enani t o Sheikh Kiam-ood-deen,” “ to descend to the

offspring in succession to be enjoyed by them.’’ I t is apparent, therefore, that none

of thew grants establish tlie fact that the property in dispute is Wukf: on the

tbe very instruments themselves show that they were granted to difierent

as an Altamgha-enam,” which i s a royal grant, perpetual and hereditary,

‘. to deocend to his (the Grantee’s) heirs in success~on~~-terms which clearly coiivey

The term “ Wukf ” does not once occur iu the grams ; which,

moreaver, coiitain iio declnratioii of trust whatever. The Court below has treated

tliis iu a way quite inconsistent with the notion of its being a trust: the dwtriiie

of a Court, of Equity is this-that if you want to fir a trust upon a property, you

iuust s h o ~ that the object is certain, and that it i s given in such a way that the

person to whoin it is given upon trust shall not have power to dispose of it for his own

benefit. In the grant of the third year of Shah Aluni, it is said to be for the purpose

of defraying the expenses of the frequenters to and froni him, the Grantee. Now,

this expression is perfectly appropriate in a grant to a Dervish for his personal

benefit, withouc implying a perpetual foundation for eleemosynary uses : indeed, the

x-ords are mere co~imonplace terms, and, in the absence of any other expression, not

sufficient to render the donation a Wukf endowment. No proof witatever hws been

adduced, that the property in question was Wukf property.

11. Xov, ~ d i ~ i i t ~ i n g this to have been ITukf, or [402] endowed property, and to

have been in~lie€~able, still there is a fatal objection to the R~pondent’s claim; it

never call be said, that if property is iiuproperly alienated, the party to urldo tlie

t r a ~ ~ s a c ~ i o n s the person who conveyed it, or even those claim in^ under hiin, still

more so when the Appellant insists, that he is a purchaser for ~t valuable considera-

tion without notice. The Respondent had no right to sue at all, for if this property

was granted for uliaritable purposes, and really is of the nature of Wukf, the Govern-

ment, whose duty it is to provide that the endowments for pious and charitable

purposes be applied according to their real inteIitions, done can SUB for the recovery

of the hfouzahs.

111. The claim of the Respondex~t is barred by section xiv. Regulation 1x1. of

1193, and clauses first and third, section ili. of Regula~ion 11. of 1805 j ~ n a s ~ l i ~ ~ ~ ~ ~ its

the property in dispute has been held under B f a i r title within the meaning of t]lose

Regulations for upwards of twelve years before the institutioil of the suit, Tilese

Regulations are analogous to our Statute of ~ i in i~a t ions , and by sectiori ii. of Regula-

tion II. of 1805, it i s perfectly clear that twelve years is an absolute bar to everyttoclr

352

p r o ~ ~ i e ~ ~ r ~ right.

0. SHAH K U ~ ~ E R - O ~ ~ - D ~ E ~ [1840] 11 BOORE IND. APP., Qo

except the Government, who niay claim for sixty years. As there was no authority

from the Government for the Respondent to sue for recovery of the Mouzalis, and

the property was held, and possession had, by the Appellant for upwards of t%7elru

pears before the comme~~ement of the suit, his claim is barred and concluded by thtk

~egulat ions of Limitation.

Mr. Sergeant Spankie, Mr. E. J. Lloyd, and Mr. Edniund E‘. Moore, for the Be

spondent.-The first question raised by the Appellants is, whe-[403]-thcr thib pro-

perty is Wukf : that must be governed by the principles applying to grants of thi\

nature provided for by the Mahairiedaii law.

I. In reading the grant by Mahomed Feroksir of the 14th of March, 171’7, no orit’

for 14 moment can doubt but that the land was given for religious purposes : the

words are, ‘. A dignified and imperative Firnian has been issued, that one lac of

danis from Pergunnah Havilly Su~iserani n Sooba Bahar, which yields the sum of

hot it Re. 1 L79 to the Royal Treasury, are endowed and bestowed for the purpose of

defraying the expenses of the Khankah of Sheikh Kutteer, as an Altmigha grant ‘‘

The e~precs\ionc in the second grant are niush stronger, and s h o ~ that the royal

Donor and Founder, who was a Mahoiuedan, intended it for religious purposes : it

states that N certain sun1 is to *‘be fixed as ait A l t an~gha-ena~~ to the x a ? ~ c t i ~ u ~

Sheikh Kiam-ood-de~n for the purpose of defraying the expenses of the frequenters

to and from him, exempting the lands from the present assessment.” The words.

“ t o descend to the offspring in succession, to be enjoyed by them,” does not corivey

a proprietary right, for it clearly is a mere trust, I‘ for the purpose of defraying

the expenses of the Khankah,” which specifies the object and purposes for which it

va. granted to the offspring in succession as the mode in which it was to he held,

as the establishment could not take care of itself. It is a grant for the Khaukali,

and the frequenters of it ; a distinct ~ippropriat~on to religious and charitable

purposes. very comnion in India, to the ~ i ~ e ~ ~ o r y of some eminently religious or holy

person. Here an actual trust is created : the grant i s to Sheik Riam-ood-deen 8%

Sij jada-nashin, the Superior of the endowed establishment, a corporation sole, in the

nature [404] of a Trustee ; he has no right to apply a portion to his own use; he is a

sorporation sole to carry on the estab1ishnrent : he is not the person to be benefited,

he is only to give to i t the effect which the Founder intended, he is only entitled to

i~articipate in its benefit &s Sij j~da -nas~~ i i i .

The objection next raised by the Appellants, namely, that the specification Wukf

is not to be found in the grants, is of an extremely strict and refined nature. I11

Macnaghten’s Principles of Mahornedan Law, Wukf is defined to be endowment, that

is, appropriation of certain property to religious or useful, or what we should call,

generally, charitable purposes (Macnaghten, Mah. Law, pp. 69, 329, 338) : if land,

as in this case, is the subject-matter, the profits are dedicated to religious objects.

The Hediiya (Neduya, vol. ii., pp. 334 arid 344, translated by Hamilton ; see also Col.

Galloway on the Law and C o n ~ t i t ~ ~ i o ~ ~ of India, p. 75), a Book of authority on tire

~ a ~ i o m e d a ~ t l w, treats largely upon Rukf , or appropriation, as i t i x there termed.

which is declared, ‘‘ in the language of the law, to signify the appropriati6n of a

particular article in such a manner as subjects it to the rules of divine property.

rrhenue the Appropriator’s right in i t is extinguished, and it beconies a proi)ertp of

God by the advantage of it resulting to his creatures.” But it is unnecessar~ to

pursue thib argument further, as the case of Mussumnt ~ ~ a ~ i ~ ~ , alias ~ ~ ~ ~ ~ ~ ~ ~ ? ~ l ~ ~ ~ ~ ~

l‘smat, v. Sftak ~ u b ~ ~ r - o o ~ ~ e ~ ~ ~ (3 Ben. Sud. Dew. Ad. Rep. 407), has already de-

cided that this very property now under dispute was Wukf, or property appropri-

ated to religious purposes ; that by the use of the word “ Enani ” in a royal grant,

it did not necessarily follow that the property specified was [405] conveyed in

absolute proprietary right, if froin the general tenor of the instrurnellt i t could be

inferred, that a Wukf, or religious endowment, was intended, lid0 Ali fioospL21

r. syf Ali (2 Beii. Sud. Dew. Ad. Rep. 110) was to the same effect. These Gaseh

dispose of the whole qumtion ; they a re most distinct autliorities that the word ivukf,

in a grant, is not necessary in order to constitute a religious appropriation for

charitable purposes, provided the nature of the tenure i s to be inferred from tile

iiature of the grant. The same principles preraiI in the Hindoo law, $jhowanpr

f+mAad Chowdvee v. Ranee d2(&7L~106?iCC (4 Ben. Sud. Dew. Ad. Rep. 343 ; and see

2 W. H. M ~ e n a ~ h t e n 7 s Hindoo Law, 305; 1 Strange’s Hindoo Law, 151 [2nd E&].

P.C. VII. 353 12

I1 MOORE IND. APP., 496 JEWUN DOSS SAHOO

This, then, being the law a p ~ ~ ~ i c a b ~ e to this species of tenure, it follow that the

Ikrarnan~ah, or deed of conveyarIce, whether conditional by way of xl?ortgage, or

absolute by sale, by Shah S h u m s ~ - o ~ - d e e n was iflegal, and conse~uently void.

11. The point raised, that the A~)peliant's Father was a purchaser for ~~a luab le

~ot~sideration without notice of the trust, is untenable, and cannot be insisted upon

here, inasmuch as it was never raised in the pleadings in the Courts beloF. The

Sppellant's Father had every opp~r tuni ty of investigating the title of the lands,

alld seeing the nature of the grants creating the trusts ; if we can succeed in slmwing

that this property is Wukf, or property devoted to charitable use, and irllpressed

with a charitable trust ; if the Appellant purchased without notice of the trusts,

even suppoeixig he gave a valuable consideration for the abject of Ihe purchase, he

could only take it subject to the trusts, and would himself become a Trustee.

111. The remaining question is the limitation, which [e061 is also untenable ; for

i t is obvious that this property, being Wukf, comes within the exceptions contained

ill Regulation KI. of 1805. It i s i ~ i ~ ~ ? o r t a ~ ~ t to consider the character of the %-

spondent, which nzakes, as to him, the question of time immaterial. The R e s ~ o n d e n ~

was not proprietor of the Mouzahs, his appoint~iient of ~ ~ u t ~ ~ a ~ y or Trustee of the

~ h a n k a h by ~ctvernment was not till the year 1819, when he alone hca ine com-

petent to sue for the recovery of these litnda ; therefore, the ordinary linlitation of

twelve years does nctt apply, as there was no one before that time conipetent to fulfil

the trusts. It is clearly laid down, with reference to English suits, that i f there

is no party competent to entertain a suit, no time will run. Mulrrczy v. The East

indin Campamy (5 B. and Ald. 204). Xothirig appears in the proceedings to

negative the presumption that the Respondent, the Plaintiff below, was d d y

authorized to institute the suit on his appointment as Mutwaly ; and being so author-

ized, he was competent to institute the proceedings in his own name as Mutwalp, or

procurator of the Donor. Ben. Regulation XIX. of 1810, sec. 15.

Mr. Justice Bosanyuet (Feb. 15, 1841).--TLe Respondent in this cme, on the

17th of September, 1822, commenced a suit against the Appellant by plaint in the

Provincial Court of Patna, to recover certain villages, alleged to have been inalien-

ably appropr~ated 'by royal grant to the support of a Khankah or religious House,

of which the Plaintiff was the Superior or S~j~ada"nashin.

These villages, on the 27th of January, 1807, were transferred to the Defendant

by Shah Shumsh-ood-deen, the Plaintiff's Father, then the Sij jada-nashin, E4073 as a

security for the repayment of a loan of Rs. 23,501, which transfer was absolute in

form, but of which a defeazance (Meadi-ikrarnamah) was executed on the same day

by the Defendant, and provided, that if the sum advanced should he repaid on or

before May, 1809, the sale should be void ; if not, that the villages should become the

absolute property of the Defendant. On the 2nd of February, 1810, Shah Shurnsh-

ood-deen, in consideration of a further sum of Rs. 5000, executed another instru-

ment, called an Ikrarnamah, purporting to eoiivey the villages to the Defendant

absol~~tely~ and on the 5th of the same month Shah Shumsh-ood-deen died.

On the part of the Plaintiff i t was contended, that the property in question

being granted for the i~iaintena~ice of a religious establishi~en~, was to be con-

sidered as Wukf or appropi.iated, and, theref~re, ina~ienable ;that if not i n a l ~ e ~ ~ a ~ ) l e ,

the transfer of 1807 was conditional in the nature of a ~iictrtga~e, which, by the

Bengal ~egula t ion XVII. of the year 1806, could not be foreclosed o r made absolute

without taking certain proceedings, which were admitted not to have bm313 taken i n

this case; that the transfer of 1810, which purported to be absolute, in consideration

of the payment of Rs. 5000, was fraudulent and void, having been made hy Shah

Shunish-ood-deen in his last illness, and shortly before his death, and consequently

that the transfer of 1807, mhi& was originally couditional, had never become

ahsolute.

On the part of the Defendant, it was contended, that the property in question was

not Wukf, but a proprietary interest given by royal authority to the Grantees and

their heirs as hereditary property, which they were at liberty to dispose of j that

the transfer of 1807, admitted to be conditional, had, by the sale of E4083 1810,

become absolute, iiot~iithstanding the omission to take the proceedings prescribed

hy Regulation XI%. of 1806, such sale of 1810 being bciaa $de; and fu r lha , that

354

92. SHAH K U ~ E E ~ - ~ ~ ~ - D E E N [1840J 11 1OOBE INn. APE'., 439

having been made by Shah Shut~~sli-ood-dcer~, heir of the persons named iu the royal

grant as Grantees, the right of the Plaintiff to sue for tlie recovery of the villages

was barred by lapse of time, mare than twelve years having elapsed froin the time of

the sale in February, 1810, to the commencement of the suit in 1822, for which Ben.

Regulations, 111. of 1793. and 11. c3f 1805, were relied on.

The Plaint~ff appears to have been under age at the death of his Fatfter in 1810,

but in 1819 he was appointed by the Government to be Mutwaly or Manager of the

establishment, and Sijjada-nashin or Superior thereof, at whicli time it is to be

presumed that he had attained his majority.

The villages in question were granted by two royal Firmans, the first by Mahoined

Feroksir, 14th of aarch, 1717, the second by Shah Alum, 13th of October, 1762.

The first of these instrunients states, that a Firrnan has been issued, that one lac of

dams from Pergunnah Havilly Suhseram, in Sooba Bahar, which yields the sum of

about Rs. 1179 to the Royal Treasury, are endowed and bestowed for the purpose of

defraying the espenses of the Khaiikah of Sheikh Kubeer, Dervish, as an Altaxugha

grant, and that i t shall be ~ t a b l i ~ l i e d according to the speci~catio~i made therein.

The ehifdren of the Sovereign, tShe Ameers, and those who transact the agairs of

State, s ad the Jaghiredars and their successors, are enjoined to relinquish She said

dams to the aforenamed individiral for Irim to manage and control, and to descend

to his heirs in succession from remove to remove, and they are [409] required to

consider the grant in every respect exempt from all contingencies, and not to demand

from the said person a fresh Sunnrid annually. Upon this instrument a mernor-

andurn is endorsed, that one lac of dams have been granted by His Majesty as an

dltamgha, for the use and expenses of tlre Klianliah of Sheikh Eubeer, Dervish.

1~ 1744, on the petition of Sheikh Gholam Sliurf-ood-deen, the Grandson of Sheikh

Kubeer, who had succeeded him as the Sij~ada-nashin, a Perwannah was granted by

Nahomed Shalt, enjoining the Chowdarries, cultivators, etc., to consider the said one

lac of dams as an Altanigha-enam, by virtue of the Perwannah of His Majesty, for

the purpose of heing appropriated to the charges of the Trarellers to and from the

Rhankah of the said Sheikh Kubeer, as it stood before, to descend to the offspring in

succession, and to refrain from taking from the said Gholam Shurf-ood-deeh, as wna

the rule before, the true and fair revenue payable to the State, and the Dewanny

tares, and enjoining them not to deviate from wliat may he for the beaefit of tlie

person in qnestion.

The term expressing the grant, to have been made for the purpose of meeting the

cliarges of the Khankah and the travellers wlio frequent the Sheikh Kubeer, Dervish,

are repeated several timeis in the endorsement.

A similar Perwannah was granted on the petition of Sheikh Kiam-ood-deen, the

Son of Sheikh Gholam Shurf-ood-deen, after the death of his Father, and it is

declared that Sheikh Kia~ii-ood-deeI~ is establislied in the Sij j~da-nasliin in the same

manuer as his Father and Grandfather were.

The second instrument of the third year of Shah Alum, about the 18th of October.

1762, is a grant, E4101 nearly siniilar in form, of two Iacs and eighty-one thousand

darns, the produce of which is Rs. 3000, to be fixed as an Al tam~ha-ena~i~ to the

sanctified Sheikh Kiam-ood-deen, for the purpose of defraying the expenses of the

frequenters to and from him, exempting the lands from the present assessmmt, and

from all that may be realized thereout by liia good management; and the childrexi

and Viziers, etc., of the Sovereign are enjoined always to maintain and uplmId the

said order, and .to relinquish the aforesaid dams to them, to descend to the offi;I>ring

in succession to be enjoyed by them, and deeming this grant free from the con-

tingency of alteration or change, the public Officers are not to deniand anything

from them upon the score of revenues or charges, and to consider the grant free of

all Uewanny taxes, o r for any writings whatever made on account of ttle State.

Deeming this a full and positive injunction, they are not to demand a fresh Stinrlud

annually, nor deviate from the80 royal and ~ ~ ~ n i ~ c ~ n t orders.

Upon this instrument, a memorandum was endorsed that 281,000 dams have been

granted by His Xajesty in Pergunnah Suhseram, etc., as an Altam~lia-enam ta

S h e i ~ ~ r Kaini-ood-deen for the charges of the Fakeers.

The proceedings in another suit coniizicnced bv the Plaintiff on the 6th of April,

1521, against Mussumat Beeby Isnrut, the Widow of Shah Shumsh-ood-deen. to re-

3.55

I1 MOORE IND. APP., 411 JEWUN DOSS SAHOO

cover from her certain other villages comprised in the same royal grants, and claimed

as Wukf property, were put in with tlie decree of the Sudder Dewanny Adawlut of

the 24th of August, 1824, in which proceedings were set forth certain opiniolls of

native la^ officers respecting the nature of Wukf property taken under the authority

of t!ie Court.

[411] The prereiit cause being brought before Mr. Fleming, the Third Judge of the

Piovinclal Court of Patna, on the 29th o f December, 1825, he determined, that as

thc disputed villages had been sold conditionally, and the conditions of Regulatioli

XT-11. of 1806 not fulfilled, the transaction could not be considered a bona fide sale ;

that the second Ikrarnamah, executed by Shah Sliumsh-ood-deen, the date of which

(he said) was one day only before the death of the said Shah, which fact, he says, the

Defendant does not deny, is invalid, in addition to which, according to the decision

yroiiounced by the Sudder Dewanny AdawIut ( i -e . in the suit against Beeby Isniut), a

coiiveyance like this is not legal. On consideration, therefore, of all tlie circum-

stances. tie considered the conditional sale to stand in the character of a riiortgage,

that it was, therefore, necessary to take an account of the produce of the villages and

of the principal and interest received by the Defendant, and, therefore, ordered him

to file the VVasilat papers.

On the 2nd of February, 1826, the Defendant presented a petition to the Pro-

vincial Court, that witnesses might be examined in regard to the second Ikrarnamah.

The cause coming on again before Mr. Fleming on the 19th of September, 1826, he

determined, that as the grounds on which the Ikrarnamah in question had been

rendered null and void had been recorded in the proceedings holden on the 29th of

December, 1825, no further orders could be passed on that head; but on the Plaintiffs

stating that the accounts of the Defendant were erroneous, it was ordered that the

proceedings should be suspended : and Mr. Fleming having on the 18th of November,

1826, exprebsed suspicion respecting the genuineness of the accounts, thought proper

24121 to give time to the Plaintiff to falsify them, and as he was going the circuit, lie

directed the cause to be brought on before the Fourth Judge, before whom another

cause coiinected p1 it21 the present was pending.

On the 25th of April. 1827, Mr. Steer, the Fourth Judge, ordered that an inquiry

into the account8 should be made through the Collector of Zillah Shahabad, and a

return was made by the Collector, the particulars of which i t is not necessary to

notice.

On the 26th o f June, 1827, Mr. Steer proiiounced the following judgment :-That

if the conditional sale writing had stood, in that case a bona fide sale could not have

been effected without acting up to tlie provisions of Regulation XVIT. of 1806 ; but

as tlie conditional sale did not stand, by Shah Shumsh-ood-deen having taken a

further sun1 of Rs. 5000, and returned to the Defendant the Ikrarnamah which this

individual had executed, which circumstance had taken place more than fifteen years,

reckoning to the period the suit was brouglit, justice demanded that, after the lapse

of EO long a time, tlie Defendant should not be deprived of the fuLI and final borro @de

sale; that after the period of limitation had gone by, the plea that the Ikrarnamah,

dated the 2nd of February, 1810, was written only one day before the demise of Shah

Shu~sli-ood~deen, could not be admitted; that the villages had been sold in the

character of a houn fide sale after the period of a conditional sale expired ; and that

the grounds on which these lands were deemed not to be a Wukf eudowment had been

recorded i n tlie proceedings holden iii a cause No. 803. For these reasons he drdered

that tlie Plaintiffs claim should be dismissed n it11 costs of suit.

Tire Plitiiitiff having appealed from this judgment [413] to the Sudder Dewanny

Adawlut, the appeal came on before Mr. Ross, Judge of that Court, on the 30th of

JanuarF, 1830, who, after stating the conditional and absolute bills of sale to the

Defendants, tlie death of Shah Shumsh-ood-deen, and that after his death his Widow,

Musmmat Kadira (Beeby Ismut), held possession of the villages mentioned in tlie two

Firmans till 1819, together with other property of the deceased as Malikeh or pro-

prietress ; that in the year 1819, the local Agents knowing the villages mentioned i n

the two Firmans to be Wukf property, appropriated to religious purposes, appointed

the Plaintiff to their ~nana~en ien t as Procurator. who instituted a suit against her

for these villages and others acquired by the profits of them ; and that having proved

their appropriation, to religious endowment (Wukf), he obtained a decree. which

decree, as proof of the property being an appropriation (f;5Tukf), was affirmed by the

366

‘U. SHAH K U ~ ~ E R - O ~ ~ - ~ E E N [1840] 11 BOORE END. UP., 424

Sudder Den-anny Adawlut : and after stating the proceedings instituted in tile

present suit, he proceeded thus:-As the villages in dispute were of the number

mentioned in the two Firmans, according to which Firmans, on proof of the villages

being Wukf (appropriated), the case No. 2910 (Mumumat Eadira, Appellant, against

Shah S~iums~~-ood-deen, Respondent), was decided by this Court on the 24th of

August, 1824, hence in this case two points demand colisideration :-

First, whether Shah Sl~umsh-ood~dee~~, the villages in question being Wukf (ap-

propriated) property, had or had not the right of alienating such Wukf (appro-

priated) property, either by Bye-bil-wuff a (conditional sale), by Bye-meady (absolute

sale), or by any other sort of assignment. As to which he says, “ The Futwa (law

opinion) of the law officers of this Court 14141 makes this point clear and manifest,

viz., that a Mutwaly (Procurat,or~) has no right to alienate Wukf (or appropr~ated}

proper’ty by Bye-bil-wuEa (conditional sale) or by any other kind of transfer.”

Secondly ; he says, ‘‘ That from the 2316 of February, 1810, the date of the Ikrar-

namah (agreement Bond) executed by Shah Shunisli-ood-deen, more than twelve

years liad elapsed ; that ussu sum at Kadira his Widow, as ~ ~ a l i k e h (pro~rietress), held

possewion of the property that had been seized of the aforesaid Shah, and that Shah

Kubeer-ood-deen, in the month of April, 1819, had been appointed Mutwaly (Pro-

curator), agreeably to the orders of the local Agents.”

Under these c~rcumstari~es, he states ths question to be, whether the suit of the

Plaintiff is or is not worthy of being entertained by the Court ; and pronounces his

opinion, that if from the date of the seizin by a person who believed the seller to have

power to sell, and no usurpation or fraud was imputable to the seller, the right of

the person seized would be well founded, agreeably to section iii. of Regulation I T . of

1805, and he states that section xiv. of regulation 111. of 1793 would apply to his

case; that the absolute sale of the 2nd of February, 1810, was fully proved, and

neither the Plaintiff nor any one for him, during the twelve years, demanded his

right, nor did Defendant admit it or promise payment, nor did the Plaintiff advancc

his claim in auy Court ; that the Plaintiff did not appear to have been prevented by

minority, having attained the age of majority in 1819, when he was ap~oin ted the

superintendeI~t of the Wukf property, three years before the conimencement of the

suit, and that with reference to section. siv. of Regulation 111. of 1193, his claim RBS

beyond the limit of cognizance. [416] As in this case, hoxever, Government was

neither P l a i ~ t i ~ , nor had the Appe~lax~t its ~ ~ ~ ~ ~ t i # n for i n s t i t ~ t ~ n g the suit, hence,

in his judgntcnt, section ii. of the 12egulation IT. of 1805 cannot be applied to this

case. btill, although the Government was not Plaintiff, yet in consequence of the

property in question being Wukf, or appropriated property, and the Plaintiff

appointed Mutwaly (Procurator) by Government, for the management of the Wukf

(appropriated) property, which i s consecrated for the entertainment of travellers, lie

thought there was reason to question whetfier the provisions of section ii. ~ e ~ u l a t i o ~ ~

11. of 1805, could affect such a case or not ; that up to the present period, no cave of

the kind had ever been tried by the Court, consequently the passing of a final Order

in this case by one Judge did not appear expedient. It was, therefore, ordered, that

the papers for a final Order should be laid Lofore the two other Judges of the Court.

Mr, Turnbull, another Judge of the Sudder 13cnaiinv ddawlut, before xhorn the

~ a u s c was brought, having differed in opinion from Mr. Ross, on the 1 ltlt of February,

1830, ordered the papers to be laid before another Judge. Accordingly it came

before Mr. Leicester and himself on the 18th of February, 1830, who afler stating

their opinion, that Mr. Steer had no power to decide the case singly in opposition to

the opinion of Mr. Fleming, but that he ought either to have postponed the case till

the return of hIr. Fleming, or if he thouglrt the inquiry by Mr. Fleniing incomplete, to

have recorded his opinion, and referred the case to the final Order of another Judge ;

that his decision, founded on the autlienticity of the Ikrarnamah of the 2nd of

February, 1810, which he p ~ o n o u ~ ~ c e d to be aut~~entic, without evidence, and of the

verity of which strong E4163 suspicions appeared. was indeed extraordinary : since,

therefore, the decree of the Provincial Court could not be sanctioned, it became

Iieiwwtry to inquire into the merits of the Plaintiff’s claim, and with that view to

consider, first, whether an inquiry in regard to the Ikrarnaniah of the 2nd of

February, 1810, in order to remove the objection of the Respondent by calling for

evidence of its authenticity, was or was not necessary. AR to which they say. ‘‘ In

357

11 MOORE IND. APR., Ql? JEWUN DOSS SAHOO

our op~nion, an inquiry in regard to the instrument in ~ u ~ t i o n is either n ~ e s s a r y

nor b e ~ e ~ c i a l to the cause of the Defendant; for in the ewnt of the ~ n ~ r u ~ e n t in

question on inquiry proving Tralid and a u t ~ ~ e n t ~ c , yet the sale by the late Shah

S h u ~ ~ ~ o d - d e e n of the villages ~ e n t i o n e d in tshe ~ns t run~ent in q u ~ t ~ o n is alto-

gether improper and illegal; for the villages in question are proved to be of the

number of the Wukf or ~ p p r o p r ~ a t e d villages. In such a case the deceased Shah had

no power by law to alienate them.” Secondly, whether the claim of the Plaintiff,

on side ring the lapse of twelve years from the date of the I k r a r n ~ ~ a h , was ~ogn~zab le

by the Court. On this question their opinion was, “That independentl~ of the

~ ~ r c u ~ s t a n c e , that up to the present date the I k r a r n a ~ a h of Bye-bat { a ~ s o ~ u t e sale)

has not been proved in such wise as to change the aspect of the first or Bye-bil-wuffa

(cond~tional sale), and that there appears not necessity to take evidence in regard to

its authentic~ty, in con~ideration of Shah Shumsh-ood”deen having no power to

alienate the villages in d~spute, yet the ~ k r a r ~ a ~ a l i in question, even if it were

proved aut.hentic, could not bar the claim of the A ~ p ~ l a n t , because the Appellant was

itppointed by the local Agent% to tfis offices of tha ~ u t ~ a l y ( ~ r o c u r a t o r ~ and

Si j j ada-~ias~~in S u p e s i o r ~ of the K h a n ~ a h or m o ~ ~ a ~ ~ r ~ of [437] Sheikh Kubeer,

Dervish, in 1819.” It i s obvious, therefore, they say, that front the date of h is

~ p p o ~ I ~ t ~ e ~ t , only the superi~~tendence of the Wukf ~ a p p r o p r i a t ~ ~ villages apper-

t a ~ n ~ n ~ to the Rhankah in question, devolved to his care, and previous to that time

he had 110 coxicern whatever with that matter. In such a case, agreeably to the

in~entions of section xiv. of ~egu la t ion 111. of 1793, the claim of tho A p p e l ~ a ~ ~ t in

every x-ay appears worthy of being e~testained by the Court. Thirdly, they say,

‘’ AIthouglr, according to usage in cases of Bye-bil-wuffa (conditional sale) it behoves

that the purchase-money of Bysbil-wuff a should be caused to be paid by the PIaintiff

to the Defendant, after the latter shall have accounted for the Wasilat (mesne profits)

of the villages in dispute, yet as the estate in question was 1 , a ~ i r ~ j or rent free, and

a p r o ~ t a b ~ e one, and has ~1~oreover been in the p o s s ~ s i o i ~ of the ~ e s ~ o n d e n t ever

since the year 1806-7 tip to the present time, a period of sistwn years, it i s presum-

able that in such a length of time the ~urchass~~toney , principal and interest, niust

have been realized by the ~ e € e ~ d a n t from the Mahal (~ is t r ic t ) in que~ ion . For this

reason, aiid also in considerat~on of the seisin of the Defendant in the p r o ~ e r t y in

question being iIIep1, and the payment not lying in the Plai~tiff , who i s the ~ u t w a l y

( p r o c ~ ~ r a ~ r ) and superintendent, an a s ~ e ~ a i ~ ~ e n t of the ~ a s i l a t (mesne profits) is

deemed u n n ~ e s s a ~ ; but rather with a view of putting an end to the dispute, and

the s u ~ e r ~ n g of the parties, it is deenied proper that neither the purchase-n~on~y be

oaused to be paid by the ~ l a ~ n t i ~ to the Defendant, nor the ~ a s i ~ a t money be

demanded of the Defendant by the PlaintiE.”

[418] The Court, therefore, decreed in favour of the Plaintiff’s claim, reversing

the decision of the Patna Court, and directed the coats of the parties in both Courts

to be defrayed respectively by each.

Such being the d e t e r ~ ~ i n a t ~ o n of the Court of appeal, their ~ ~ r d s ~ ~ i ~ s are $0

consider, whether that Court has determined rightly. First, that villages contained

ranta were to be considered as Wukf, and, therefore, ~ n a l ~ e n a b ~ e in any

manr~er wha~oever. Secondly, that n o t w ~ t ~ t a n d i n g the lapse of time, the ~laint i f f ,

in the character of ~ u t ~ a l y , ta which he had been appo-inted by Government in 1819,

was entitled t o recover those villages. Thirdly, that as the possession of them by t he

~ e f e n d a n t was illegal, and as the ~ ~ a i n t i f f was not the Debtor of the ~e fendan t ,

he was not bound to repay the money advanced. With respect to the determinatio~

that the ~ l a ~ n t i f f ought not to have any account of the mesne profits, as the P~aintiff

himself has made no e o ~ ~ p l ~ i ~ t , it is ~ ~ n ~ e c e s s a r y to consider it-

The question, whether the ~ r o p e r t y mentioned in the two royal grants was to be

considered as Wukf, or as a proprietary right, was much discussed in the above-

mentioned case of Kubeer-ood-deen (the present Plaintiff) against Mussurrimat

Kadira : and the opinions of the nati~7e law-o~cers taken in that cause beiikg found

to be c o 3 ~ t r a d i ~ t o ~ , it ’became n ~ e s s a r y to consult the ~ u t w a s of Lawyers in eases

formerly decided by the Court r e s p e c t ~ ~ ~ g Wukf endowment^, and the decision of the

Sudder ~ e w a n n y Adawfut of the 1st of Xarch, 1814, in the case of Iiillb Ali ~ ~ ~ i ~ ~ ~ e ~ ~

v. YgJ AT& to~ether with a ~ u t ~ ~ a of a former ~ ~ ~ ~ i - ~ o l - ~ o u ~ e t of the Sndd r ~ ~ T ~ a ~ ~ I ~ y

Adawlut, and of the Moofti of that Court, were referred to.

358

W. SHAH KUBEER-OOD-DEEN El8401 11 MOORE IND. APP., 419

[419] The terms of the Firrnans of Aulun Gheer in that cause ran thus: “ As it

has corne to the knowledge of His Majesty, that agreeably to a Sunnud, furnished by

the Hakims, certain Mouzahs situate, etc., have been appropriated for the purpose

of meeting the charges of Fakeers and Students of the Madrissa, and the Khankah

and Musjid of Moolla Dervish Hoossein, Son of Moolla Gholam Ali, and the afore-

said individual is hopeful for the royal munificence and favor, His Majesty’s royal

coninlands are, that in the event of the aforesaid Mouzahs being in the occupation

and enjoymentbf that individual, the whole of their Mouzahs shall continue as they

formerly were at a jumma of 15,000 dams (from such a date), in the character of

a Maddad Mash (aid for subsistence), according to the tenor of the grant; and in

order that he may apply the produce of these lands to meet the charges of the

Students of his Madrissa and Musjid, and the present and future Hakims, the

Amils, etc., are enjoined to relinquish the Mouzah in question to that person’s occu-

pation, to deem them Maaf (exempt froin tax), and blotted with the pen in every

respect, and not to require of him a fresh Sunnud annually. Should that individual

occupy anything in any other way, they are not to countenance him.” Upon read-

ing the Firman, the Kazi-ool-Rouzat and the Moofti gave their Futwa as follows:

’’ As in the Firman it is written that the produce of the lands specified therein is to

be applied to meet the charges of Students of Madrissa and Musjid of Moolla Dervish

Hoossein, and as it is not written that the said Moolla shall appropriate the produce

to meet t>he charges of his family and children, or that he shall enjoy the same with

his family and children, it therefore appears to us, that the lands in question have

been paid [420] as Wukf in the character of Maddad Mash, and are not liable to sale

or gift.”

Agreeably to the above Futwa, the Judge& of the Sudder Dewanny Adawlut

decreed that the litigated lands contained in the Firman in question were a Wukf

endowment, and were not disposable by sale or gift ; the grounds of which judgment

(it is said) are fully stated in the decree of that eourt, under date, March Ist, 1824.

It is to be observed, that the word “ Wukf ” was not mentioned in the Firman,

and that the individual on whose application the grant was made, Moolia Efoosscin,

was expressly named. In the report of this case (2 Ben. Sud. Dew. Ad. Rep. 1101,

it is said tbat the terms of the Firman declared that the general superintendence of

the resources shouid be confided t o Dervish Hoossein, and should remain rested i n

him, his heirs, and successors; or other property to pious and charitable purposes

is sufficient to constitute Wukf, without the express use of that term in the grant,

and that the alienation of such property from the purposes intended i s illegal.

After referring to this case, and the opinions of the law-officers, the $udder

Dewanny Adawlut, in the case of Mussummat Kadara v. Shah Kubeer-ood-deen

(3 Ben, Sud. Dew. Rep., 407), appear to have determined, that notwithstanding the

use of the words Enam ” and “ Altamgha,” in the royal grants, and the mention

therein of the person upoii whose petition the grants were made, yet as these grants

appeared clearly to have been made (as expremed in the petitions) for the purpose of

maintaining a charitable institution, the persons named were not to be considered

proprietors : that the establish-[421]-ment (the Khankah) was the real Donee, and

the persons named were only Xutwalies of the Khankah; that a Mutwaly has no

right to alienate, and consequently that the transfer by gift or otherwise by Shah

Shumsh-ood-deeiz was illegal.

This decision is in accordance with the doctrine laid down in The EIedAya,

Book xv., of Wukf or appropriation, Hamilton’s translation, vol. ii., page 334,

where it is said ‘‘ Wukf ” in its primitive sense means “ detention.” In the language

of the law (according to Haneefa), it signifies the appropriation of any particular

thing, in such a way that the Appropriator’s right in it shall continue, and the

advantage of it go to some charitable purpose, in the manner of a loan. According

to the two Disciples, ‘‘ Wukf ” signifies the appropriation of a particular article in

such a manner as subjects it to the rules of divine property, whence the Appro-

priator’s right in it is extinguished, and it becomes a property of God, by the

advantage of it resulting to his creatures. The two Disciples, therefore, hold

appropriation to be absolute, though differing in this, that Aboo Yoosaf holds the

appropriation to be absolute from the moment of its execution, whereas Mahomed

holds it to be absolute only on the delivery of it to a Mutwaly (or Procurator). and.

369

*

I1 MIOOBE IND, APP., 42% JEtVUN DOSS SAHOO 2'. SHAH, KUBEEN O O D - i ~ l I k 3 [1840]

consequently that it cannot be disposed of by gift or sale, and that iniieritance

also does not obtain with respect to it. Thus the term '' Wukf," in i t s literal sense,

comprehends all that is ment~oned, both by Eaneefa, and by the two Disciples.

Again (page 344) it is said, '( Gpon an appropriation becoming valid or abso~ute,

the sale or transfer of the thirig a~propriated is unlawful according to at1 Lawyers:

the transfer is unlawful, because of a saying of the Prophet, ' Bestow the actual

iand itself [&2) in charity in such manner that it shall no longer be saleable or

inheritable.' "

If the decision in the case of Kubew-ood-deen v. ?lilussumma-t Kadzrri waq correct,

it follows that the transfer in this case, whether condit~onal or a~solute, by the same

person (~hurnsh-ood-de en^ to the Defendant, was illegal : also, secondly, with respect

to the lapse of time, the P l a i n t i ~ , not being the proprietor, had no right to sue

for the recovery of the villages as his own ; accordingly, he preferred his suit as

~ i j j a d a " i ~ a s h ~ n , having been app~in ted Mut~fa ly in 1819. Had he s u c c ~ d e d as heir

of his Father to a proprietary right in the villages, he might have been barred by

the lapse of twelve years, according to section xiv. of regulation 111. of 1793 but

having no right except as ~ ~ u t w a ~ y , he stood in a very different situat~on. The

s u p e r i ~ ~ t ~ ~ ~ d e n c e of the Wukf villages devolved to his care from the date of his

appo in t~~en t only. The Mut~valy i s the Procurator of the Donor, which, in this case,

vas the Sovereign; and it appears, by Regulation XIX. of 12310, that it is the duty

of every Government to provide, that the ei~down~ents for pious and beneficial pur-

poses be applied according to their real intention : the local Agents are appointed

to ascertain and report the names of Trustees, Managers, and superintendcnts,

whether under the d~s igna t io t~ of Mutwaly or any other, and all racancies, and to

r e ~ o ~ m e ~ ~ d fit persons where the nomination devolves on the Governnient, That

the Board of ~ o ~ n i ~ s s i o i i e r ~ may appoint such persons or make such other p ~ o v ~ s ~ o ~

for the superintendence, management, o r trust as may be thought fit. The Plaintif€,

therefore, upon his a p p o i n t ~ e n t as ~ u ~ w a l y , became the ~ u t h o r i ~ e d Agent of the

Government for the performance of the acknowledged E4231 duty of the Government

to protect the endowment from misapplication; for, as it is said in the opinion of

the ~ ~ a h o m e d a ~ i l wyers, "The endower and the Mutwaly are one and the same.'.

The endowment in this case was a perpetual endowment, and the duty of the Govern-

nient to preserve its applicat~on to the right use was a public and pe rpe t~~a l duty.

By Regulation 11. of 1805, seetion ii., it, i s provided, that the limitation of twelve

pears for the c o ~ ~ ~ r ~ i e ~ c e r n e ~ ~ t of civil suits shall not be considered applicable to the

c'onimencenient of any suits for the recovery of the public revenue, or for any public

rights or claims whatever which may be instituted by or on behalf of the Govern-

ment, with the sanction of the ~ O ~ e r n o r - ~ e I ~ e r a l in Council, or by d i r ~ t ~ o ~ i of any

public OBcer or OfEcers who may be duly authorized to prosecute the bame on the

part of ~ o v ~ r n m e i ~ ~ . . The ~ l a ~ n ~ i ~ , who was neither heir nor personal repre-

sentative of his Father, in respect of M7ukf property, had no right of action against

the Defendant till his appoin~i~ient in 1819, and the Defendant could acquire no

right against the Government, whose Procurator the Plaintiff was, at feast, until

twelve years had elapsed from his appoi~itment.

The endowment being a perpetual Wukf, and the alienat~on c o ~ s e q u ~ ~ ~ t ~ ~ illegal.

and it not having been shown that the purchasemoney was applied to the use of the

~ ~ ~ a I ~ k ~ h , the P la in~~f f cannot be required to account for it-, even upp posing the

Defendant, not to have been fully repxid by his long possession of the property.

Their Lordships are, therefore, of opinion, that the judgineirt of the Sudder

Dewanny Adawlut ought to be affirmed.

[SCP now Indian 1 , i~~~i ta t io i~ Act (XT. o f I877), prixited as anlended Ckwerul

Acts, 1898, 3rd ed. p. '73.1

360