KHAJEH SALIMULLAH Vs. ABUL KHAIR MMUSTAFA

JUDGEMENT

(1.) The subject-matter of the litigation, which has culminated in this appeal, consists of immoveable properties comprised in two waqfs, one created by Ayinuddin Hyder on the 22 April, 1864, and the other by his widow, Faizunnessa Bibi on the 29 January 1877. The plaintiff, who is a relation of the founders of the two waqfs, seeks for declaration of his right as mutawalli and for recovery of possession of the properties of the endowments. The first defendant is the Nawab of Dacca and is now in possession of the properties as the mutawalli under the deed of Faizunnessa executed on the 29 January 1877. The second defendant is a cousin of the plaintiff, who had previously failed in a litigation commenced by him on the 14 August 1880 for recovery of possession of the waqf properties as mutawalli. The third and fourth defendants are sisters of the plaintiff and have been brought on the record as members of the family interested in the endowment. Their relation to the founder is indicated in the following genealogical table:

(2.) The fifth defendant is the naib mutawalli or the Deputy Superintendent of the endowment. The remaining defendants, fourteen in number, are members of the family of the Nawab of Dacca. The suit was defended substantially by the first defendant, the Nawab, and by the fifth defendant, the Deputy Superintendent of the waqf. They denied the title of the plaintiff to hold the office of mutawalli in respect of either of the two waqfs, and raised the plea that the claim, even if otherwise well-founded, was barred by limitation. A question appears also to have been raised as to the validity of the waqfs under the Mahomedan Law. This, however, has not been investigated, for the obviously sufficient reason that, as both parties lay claim to the office of mutawalli, the question of the legality of the waqf cannot properly arise. The Subordinate Judge in the Court of first instance has overruled the objection of the contesting defendants, and has held that the Nawab of Dacca has no valid title to the office of mutawalli under the deed of Faizunnessa, while the plaintiff is entitled to hold the office as one of the representatives of the founders of the two endowments. He has further held that as the suit has been commenced within 12 years of the death of Faizunnessa in 1897, as alleged by the plaintiff, the claim is not barred by limitation. In this view he has made a decree in favour of the plaintiff, by which the latter is appointed the chief mutawalli of all the disputed properties except one, and is authorized to recover possession of the waqf properties from the first defendant. The first and fifth defendants have now appealed to this Court, and on their behalf the decision of the Subordinate Judge has been assailed substantially on two grounds, namely, first, that as regards the waqf created by Faizunnessa on the 29 January 1877, the plaintiff is not entitled to hold the office of mutawalli and recover possession of the disputed properties, in view of the clear directions to the contrary given by the founder herself; secondly, that so far as the waqf created by Ayinuddin Hyder on the 22 April, 1864 is concerned, the title, if any, of the plaintiff to hold the office of muttawalli has been extinguished by the adverse possession of that office by Nawab Ahsanullah and Nawab Salimullah during more than 28 years from the 29th January 1877 to the date of the institution of the suit. Both these points have been controverted on behalf of the plaintiff-respondent.

(3.) In support of the first ground urged on behalf of the appellants, our attention has been invited to the deed of waqf, called the towliatnamah executed by Faizunnessa Bibi on the 29 January 1877. This deed has a two fold character. It deals with the properties dedicated as waqf by Ayinuddin Hyder on the 22nd April 1861; this aspect of it will require consideration when we come to deal with the second ground. But it also creates a new waqf for the purposes of which the founder dedicates her own properties. She appointed Nawab Ahsanullah as the mutawalli in respect of both the waqfs, and then added the following clause with regard to her husband's brother's grandsons, the present plaintiff and the second defendant: "Though Muhammad Mustafa and Wahiuddin, the sons of my deceased husband's brother's sons are living, they denied the validity of the waqfnamah; and intending to divide the waqf properties among themselves as by right of inheritance, they entered into various litigations with me for seven of eight years in Civil, Criminal and Revenue Courts, in which they were unsuccessful up to the High Court. Besides, they are indebted to the amount of seven or eight thousand rupees. In affect, they are but irreligious people, because, although they are not entitled in any way to the waqf properties, they brought these suits to gain unlawful possession. In these circumstances they ought not in any way to be made mutawallis." In a later passage in the same deed, the founder repeated her objection to these persons and directed that "though Nawab Ahsanullah might, when old, appoint a fit and proper person as a successor in the office, Muhammad Mustafa and Wahiuddin who had committed waste were not to be appointed." It is manifest from those provisions in the towliatnamah that the founder deliberately directed that the present plaintiff was not on any account to hold the office of mutawalli of the waqf created by her. Under these circumstances, even if we assume that the Court has the authority to disregard the clearly expressed wishes of the founder, the question necessarily arises whether the plaintiff should be appointed mutawalli of the waqf of 1877. In our opinion only one answer is admissible. The Court will not, even if we assume that it has the power to do so, disregard the directions of the founder except for the manifest benefit of the endowment. The principles applicable to cases of this description are well-settled and were explained by Lord Justice Turner in In re Tempest (1866) L.R. 1 Ch. App. 485; 14 L.T. 685; one of these principles is that the Court in selecting a person for the office of trustee will, in the exercise of its judicial discretion, have regard to the wishes of the author of the trust expressed in or plainly deduced from the instrument, and if he has declared a particular person not fit to be appointed a trustee, the Court will refrain from appointing him. To what extent regard is paid to the wishes of the founder may be illustrated by the following texts translated from two works of high authority on Mahomedan Jurisprudence: Text I.