SALEB KHAN Vs. MADAR SAHEB PIR

JUDGEMENT

(1.) These two analogous appeals arise out of the reversing judgment of the Additional Subordinate Judge of Cuttack setting aside the judgment and decree of the Munsif of Kendrapara and decreeing the plaintiff's suit for recovery of possession of two small house sites.

(2.) The plaintiff is a Pir represented by its present Mutawalli Alimulla. The wakf in favour of the Pir was created by the father of Alimulla named Ramjanulla some time in 1908 by a wakf-nama (Ext. 1). The total property dedicated to the Pir in that wakfnama is 14.8 acres (including the disputed house sites) and it was expressly stated in the deed of dedication that the surplus income from the wakf property may be appropriated by the Mutawallis. After the death of Ramjanulla, his wife (Ali-mulla's mother Hazara Bibi) became the Mutawalli and managed the wakf property till her death on 4-12-1933. During her period of management she executed two kabalas (Ext. A-1 dated 6-12-1922 and Ext. A dated 7-9-1925) in favour or the predecessors-in-interest of the appellants transferring small portions of house sites for Rs. 230/- and Rs. 200/respectively. The area or the house site transferred by the first deed is eight decimals and the area transferred by the second deed is six decimals. Alimulla joined in the execution of the two sale deeds by his mother; but admittedly at that time he had no interest as he was not the Mutawalli. After the death of his mother he became the Mutawalli of the wakf property and brought the suits under appeal for a declaration that the alienations were not binding on the wakf and for recovery of possession of the disputed house sites on behalf of the Pir.

(3.) The trial Court held that the alienations were made by Hazara Bibi for the purpose of discharging the previous debts binding on the wakf, for repairing the Pirsthan and also for meeting the routine expenses of the Pir. This finding was upheld by the appellate Court and was rightly not challenged before us. But the two lower Courts differed on the question of limitation. The trial Court held that the alienations were void ab initio and that limitation would run from the date of the alienations. On this view, the suits were clearly time-barred. But the lower appellate Court held that the alienations were only voidable, that they were valid during the life-time of the Mutawalli and that limitation would commence from the date of death of Hazara Bibi on 4-12-1933. In this view the two suits were not time-barred. Hence, it decreed the plaintiff's suit. We are satisfied that the lower appellate Court took a correct view on the question of limitation. The wakf deed makes it clear that the Mutawalli was a beneficiary being entitled to appropriate for his use the surplus income out of the usufruct for meeting the expenses of the Pir. The lower appellate Court rightly relied on -' Ram Charan v. Naurangi Lal', AIR 1933 PC 75 (A); -- 'Mahadeo Prasad v. Karia Bharthi', AIR 1935 PC 44 (E) and -- 'Daivasikhamani Ponnambala v. Perivanan Chetti', AIR 1936 PC 183 (C), in support of the view that alienations of this type made by a Mutawalli of a Muslim religious endowment or by a Mahant of a Hindu Muth are voidable and not void ab initio. Possession of the alienee would, therefore, be adverse to the endowment only from the date of death, resignation or removal of the previous manager. The suits are, therefore, not time-barred,