MOHAMMAD KAZIMUDDIN CHOWDHURY Vs. SREEMUTLY SOBHA KHATUN

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff to recover possession of certain waqf properties for the purposes of the trust. The properties in question were dedicated for religious purposes or made waqf as regards an 8 anna share by one Karim Kazi and as regards the remaining 8 anna share by the heirs and representatives of Amir Kazi the brother of Karim Kazi. The mulwalliship descended to one Najibannissi who in February 1901 executed a conveyance of the properties in question in favour of one Sobha Khatun who is defendant respondent No. 1 in these proceedings. The suit was instituted by the plaintiff Kazim-ud-Din, who is a descendant of one of the waqifs, in respect of the second waqfnamal on 21st April 1915 and both the Courts below held that it was barred by limitation.

(2.) Plaintiff is the appellant before us and his contention in this Court is, that the conveyance executed by Najibannisa should be regarded as merely a transfer of the trusteeship or mutwalli and that her possession should be regarded as that of a mutuwalli and, there fore, on behalf of, and not adverse to, the trustee. It is conceded, however, that Najibannissa was not competent in this way to transfer the mutwalliship; and the suggestion that from the date of her possession she acted on behalf of the trust is contrary to all the allegations in the plaint. Moreover, though in one passage in this conveyance it is stated that the transferee is to become a mutwalli in place of NajibunDissa, at the same time the deed is one of absolute sale for valuable consideration of all the properties in question. The transferee s possession was adverse to Najibannissa and her successors as mutwallis ah into and continued to be adverse from the date of the transfer until the date of suit. We have been referred on behalf of the appellant to the case reported in Ravi Vurmah Valua v. Ravi Vurmah Kunhi 1 M. 235 (P.C.) 1 Ind. Jur. 134 : 4 I.A. 76 : 3 Sar. P.C.J. 687 : 3 Suth. P.C.J. 382 : 1 Ind. Dec. (N.S.) 156 which, however, does not deal with the question of limitation; to the cafe reported as Gnarasambanda aniara Sannadhi v. velu PanJaram 23 M. 271 (P.C.) : 2 Bom. L.R. 597 : 4 C.W.N. 329 : 27 I.A. 69 : 10 M.L.J. 29 : 7 Sar. P.C.J. 671 : 8 Ind. Dec. (N.S.) 591, which was a case regarding an hereditary there, and also to the case decided by their Lordships of the Judicial Committee in Radanth Lost v. Gisborne & Co, 14 M.I.A. 1 : 15 W.R.P.C. 24 : 6 B.L.R. 530 : Suth. P.C.J. 397 ; 2 Sar. P.C.J. 636 : 20 E.R. 687. This last case, we may observe, is prior to the change in the law affected by the Limitation Act, IX of 1871; and, having considered the cases put before us on behalf of the respondent, namely the cases decided by their Lordships of the Privy Council reported as Abhiram Goavumi v. Shyama Charan Nandi 4 Ind. Cas. 449 : 36 C. 1003 : 10 C.L.J. 284 : 6 A.L.J. 857 : 11 Bom. L.R. 1234 : 19 M.L.J. 530 : 14 C.W.N. 1 : 36 I.A. 148 (P.C.), Dutnodar Das v. Lakhan Das and Iswar khyam ChandJiu v. Ram KanaiGhose 10 Ind. Cas. 683 : 38 C. 526 : 9 M.L.T. 448 : 15 C.W.N. 417 : 8 A.L.J. 528 : 13 Bom. L.R. 421 : 14 C.L.J. 238 we can only come to the conclusion that in this case Article Of Schedule I to the present Limitation Act applies and that the Courts below are right in holding that the present suit to recover on behalf of the trust the properties in question is barred by limitation. In this connection we may also refer to a case subsequent to the cases to which we have just referred decided by a Division Bench of this Court and reported as Bameshwar Malta v. Jiu Thakur 29 Ind. Cas. 337 : 19 C.W.N. 1082 : 43 C. 34.

(3.) In the view we take, this appeal must be dismissed with costs.