MAHIMJAN BIBI Vs. MIR RAHIM ALI

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for a declaration that the mortgage by defendant No. 2 of the properties in suit to defendant No. 1 is void and not enforceable against Waqf estate, of which defendant No. 2 is the Mutwalli. One Kamal Sharif executed a Wakfnama on the 4 November, 1892, and appointed his two sons by his two wives as Mutwallis in respect of his Waqf properties which were divided into two parts, each Mutwalli holding one half. The defendant No. 2 was thus the Mutwalli of one half of the Waqf properties in which the plaintiff and some other defendants were beneficiaries. Defendant No. 2 mortgaged the Waqf properties to one Sasi on the 11 August, 1906. On the 31 May, 1911, he mortgaged the same properties to one Kazi and out of the consideration for this mortgage he liquidated the first mortgage. On the 13 February, 1914 he mortgaged, the Waqf properties for the third time for Rs. 3,000 to defendant No. 1 and paid off the second mortgage. It is beyond controversy that a Mutwalli has no power under the Muhammadan Law to mortgage or transfer the Waqf property or any portion of it without the leave of the Kazi or the Court. Such a transfer is under the law void: Shama Churan V/s. Abdul Kabeer [1898] 3 C.W.N. 158. The power and liability of a Mutwalli have been authoritatively settled in the recent case of Vidya Varuthi Thirtha V/s. Balusami Ayyar A.I.R. 1922 P.C. 123, which has been followed by their Lordships of the Judicial Committee in the more recent case of Abdur Rahim V/s. Narayan Das Arora A.I.R. 1923 P.C. 44. These cases lay down that the curator of a Waqf whether called Mutwalli or Sajjadanashin or by any other name, is merely a manager. The facts of the case of Abdur Rahim V/s. Narayan Das Aurora A.I.R. 1923 P.C. 44 are very similar to those of the present case. There also the previous Mutwalli had mortgaged the Waqf property and the mortgagee in execution of a decree in the suit upon the mortgage obtained possession of the Waqf property. The subsequent Mutwalli brought a suit for declaration that the alienation by the previous Mutwalli was not binding on the Waqf and so far was void. This contention was successful and their Lordships stated the fundamental principle which governs the handling of Waqf properties under the Muhammadan Law as follows:-" Where an attempt is made to grant a mortgage for purposes foreign to the necessary purposes of the Waqf, which is therefore as such unsustainable, the whole mortgage fails." They added "Their Lordships are of opinion that for an advance of money, otherwise than to satisfy the legitimate needs and purposes of the Waqf, no part of the property held in Waqf is chargeable either by the settlor or by the Court. This is in accord with the view taken by this Court in the case of Nimai Chand V/s. Golam Hossein [1909] 37 Cal. 179 where the Muhammadan Law as found in the original texts has been expounded in detail. This being so, the only question that needs our consideration is whether the mortgage challenged in this suit was made for the purposes of the Waqf, or, as the Judicial Committee put it, to satisfy the legitimate needs and purposes of the Waqf. In the Waqfnama there is a provision to the following effect: "The Mutwalli or the Mutwallis may, if necessary, grant permanent or Mourashi pottahs in respect of any of the Waqf properties or of any part thereof. He or they may also, if necessary, borrow money by mortgaging any of the Waqf properties or any part thereof." Under this deed the power of the Mutwalli to mortgage Waqf properties is limited only to such cases where it may be necessary to borrow money. Both the Courts below have taken the view that, where power is given to a Mutwalli to mortgage a Waqf property, though saddled with a condition, the mortgagee who advances the money in good faith is not bound to satisfy himself that the condition precedent to the exercise of the power of the Mutwalli to mortgage the Waqf estate is in fact established; and they have relied on the case of Moonshee Golam Ali V/s. Sowlantoonissa Bibee [1864] W.R. 241. It is not necessary in this case to consider the correctness of this decision as it is obviously distinguishable from the present case. There the mortgagor was empowered under the trust- deed to sell any part of the trust property where such course was deemed advisable in the interests of the trust property. In such a case it may be urged that when the Mutwalli considers it advisable to sell a part of the Waqf property in order to buy another and more profitable property the creditor has no means of ascertaining what the Mutwalli's real intention is. He has to rely upon what the Mutwalli tells him. But in the present case the Mutwalli is vested with a restricted power to be exercised only when it becomes necessary in the interest of the wakf to borrow money. Though the case of Golam V/s. Sowlantoonissa [1864] W.R. 241, is distinguishable from the present case on the facts, we may point out that it has never been followed and has not even been considered in the numerous cases that have come up both before the Courts in India and the Privy Council; and if it is examined in the light of the principles laid down in the decided cases, it may be difficult to support. The Courts below have not enquired into the question whether defendant No. 2 was under the necessity of borrowing money at all. No such necessity appears to have been even suggested. We have been asked by the learned Vakil for the respondent to remand the case for an enquiry on this point but after a careful consideration of the proceedings and the entire evidence in the case, we are of opinion that no useful purpose will be achieved thereby. In the first mortgage to Sasi in 1906 the object for which the money was borrowed was stated to be the payment of Rs. 900 for the purchase of certain property by him. In the second mortgage to Kasi, the purpose for which the money was borrowed under the first mortgage is stated to be the fatche of the plaintiff's father and other necessities. This is wholly inconsistent with the first mortgage. In the third deed of mortgage which is the subject of this suit the only object mentioned was the satisfaction of the previous mortgage. There is no evidence to show that at the time of the execution of any of these mortgages the Mutwalli was under the necessity of borrowing money to carry on the administration of the wakf estate. It has been argued on behalf of the respondent that if the mortgage deed recites the necessity for a loan the mortgagee is not bound to enquire into its authenticity. We are not much impressed by this contention. It. is well-established in law that the exercise of a particular power must be considered in connection with the condition under which the power has been conferred. The Mutwalli in this case could only mortgage the wakf property if it was necessary for the purpose of the wakf. The onus is, therefore, heavily upon the mortgagee to prove the existence of any such necessity and we are of opinion that he has failed to discharge it.

(2.) It is, however, argued that the burden is upon the plaintiff to establish that there was no such necessity. We think it is no part of the plaintiff's duty to prove a negative proposition. We, therefore, hold that both the Courts below have erred in the view of the law they have taken and that this appeal must be decreed.

(3.) In the result, the decrees of the Courts below are set aside and the plaintiff's suit decreed. As it has been found that the defendant No. 1 advanced this money in good faith we direct that each party do bear his costs in all the Courts.