HAJI ABDUR RAHIM Vs. NARAYAN DAS AURORA

JUDGEMENT

(1.) This was a suit brought by the mutwalli of a mosque to recover possession of property, alleged to have been settled as a valid wakf, from the defendants, whose title arose under incumbrances created by his predecessors in that office.

(2.) The principal issue tried in India was whether or not the claim was statute- barred, and, relying on Art. 134 of the first Schedule of Act No. IX of 1908, the High Court gave judgment in favour of the defendants. This was before the decision of their Lordships Board in Vidya Varuthi Thirtha V/s. Balusami Ayyar (1921)L.R. 48 I.A. 302, which held that Art. 134 does not apply to wakf, and accordingly their conclusion is admitted to be no longer sustainable. There has further been much discussion on the present appeal whether the case is governed by Art. 142 or by Art. 144, since Art. 134 is inapplicable ; but again of is common ground that, if the plaintiff's evidence established that his predecessor in office remained in possession of the property in question until after the year 1901, then his claim is not statute-barred. As to this, oral evidence, relating to the receipt of the rents and profits, was called on both sides. The learned trial Judge, after criticising adversely the evidence given on this point by the defendants witnesses, accepted the plaintiff's case, and held that the mortgagors had remained in possession until less than twelve years before the present suit was begun. With this finding of fact one of the learned Judges in the High Court, Richardson J., agreed. His colleague, Syed Shamsul Huda J., dissenting, drew attention to the burden of proof, which he said rested on the plaintiff and had not been discharged, the probabilities being in favour of the defendants, If the learned Judge meant, as his reference to the onus of proof seems to indicate, that the plaintiff had given no evidence, that the mortgagee had not received possession at the time when the mortgage was executed and in accordance with its terms, he overlooked the fact that several of his witnesses gave positive and precise evidence on the subject, and so far as the burden of proof goes, there was enough to call for an answer. If, on the other hand, as his allusion to the probabilities of the case seems to show, he only meant that, weighing the plaintiff's evidence against that of the defendants, he rejected the former and accepted the latter, his opinion is not fortified by any detailed examination or comparison of the evidence, which the respective witnesses gave. Their Lordships do not think that under these circumstances the opinion of Syed Shamsul Huda J. ought to prevail against the concurrent opinions of Richardson J. and of the learned trial Judge; nor does their own examination of the evidence, which need not be set out in detail, lead them to discredit the plaintiff's case in this respect.

(3.) The affirmation of the finding that the mortgagors retained possession down to a date, which defeats the plea of the Statute of Limitations, would dispose of this appeal, but for the following point. The original settlement was undoubtedly a valid creation of a wakf, for the provision intended to benefit the family of the settlor was not the preponderating feature of the settlement, nor was the provision made for the perpetuation of religious ceremonies and charitable gifts by any means illusory or unsubstantial; but, equally undoubtedly, the two provisions- that for the upkeep of the mosque and celebration of worship there on the one hand, and that for the benefit of the settlor's family on the other-are, as a matter of drafting, separate and severable dispositions. Indeed, it could not have been otherwise. The new contention for the respondents was that a mortgagee, who had parted with his money to the persons, members of the plaintiff's and of the settlor's family, who were then in the position of mutwalli, ought not to lose his money altogether, and that too at the plaintiff's instance, but was at least entitled to have a charge declared in his favour over the portion of the property, which was settled for the benefit of the settlor's family.