MUNSHI GHHOLAM MOWLAH Vs. MOLLAH ALI HAFIZ

JUDGEMENT

(1.) In this case the action was brought by four plaintiffs whose names appear upon the record: the second and third are two sons of Abdur Rahman, who is the first defendant, and the first and the fourth are relations of Abdur Rahman, and the second defendant was a man called Gholam Mowlah, who was a purchaser of certain property from the first defendant. The purchase was effected by a deed which is dated the 12th June 1910; I need not read the deed in detail because it pas been fully commented upon by Mr. Asgbar, the learned Counsel for the plaintiffs, this morning:--It refers to certain property in Calcutta on a part of which stands a mosque; and Abdur Rahman, the Vendor, in the conveyance refers to the fact that this property was his hereditary property, that his father and he himself have, generation after generation, in succession without any. body s objection all along for more than twelve years, been, enjoying and possessing the proprietary rights thereof one after another and that no one else has any sort of right or claim thereto. Then he refers to the fact that he has got into necessitous circumstances and must sell. He says, "consequently, there is no other means left but to sell my aforesaid Calcutta properties, subject to the duties and responsibilities of the said mosque, and 1 cannot sell the same to any other purchaser than a religious Musalman of the Sunni sect. Too, (i.e., defendant No. 2) are a religions Musalman of the Sunni sect, and believing all my aforesaid statements you became desirous of purchasing the aforesaid property as proposed by me, and having fixed the value thereof at Rs. 3,000 1 received from you yesterday," and so on, and he sells the property subject to all the aforesaid, conditions, and says, "you, being malik in all my aforesaid rights and titles, shall continue all along to enjoy and possess the same, and shall exercise all sorts of proprietary rights. You shall maintain the mosque according to the custom prevailing and look after the same and shall perform all the acta and observe the festivals that are necessary for the Musalumns of the Sunni sect in connection therewith:" and, ho refers to the different prayers, and then to the properties and says, "all these belong to me personally; no one else has any sort of right or claim thereto; you believing all these statements of mine and other statements mentioned above relating to my title agreed to and purchased...should any one else purchase the aforesaid property from you, he shall also have to carry out the aforesaid conditions in respect of the mosque and you shall not be entitled to sell the aforesaid property to any one else who is not a Musalman of the Sunni sect."

(2.) Now, it is said that this was a trust property held by the first defendant Abdur Rahman as trustee, and that he had no right to sell the property in the way he did. The action was brought by the plaintiffs against these two defendants. The first defendant did not appear; two of the plaintiffs, as I have said, are his sons; the other two plaintiffs are his relations. It was apparently proved in evidence that they bad very little connection with this mosque, that they did not live in Calcutta; one of them did not live there for fifteen years: and, without saying more, I agree with what the learned Counsel for the second defendant argued yesterday that there is ground for saying that their claim ought to be looked upon with great care. J. do not want to say more than that, because I have not heard what Mr. Asghar might have said with regard to that matter in full detail, bah there are certain facts, which, if I had been a Judge in the first instance, would have led me to investigate the bona fides of this claim with great care.

(3.) Now, the second defendant, it has been found by the learned Judge, was a bona file purchaser: He made certain enquiries which were detailed to us yesterday by Mr. Das and I am not going to repeat them. The learned Judge said that if the defendant had made certain further bnquiries he would, in all probability, have found that this was trust property, and the learned Judge has, therefore, come to the conclusion that the second defendant had what is called in law constructive notice, meaning thereby that it he had made these farther enquiries to which the learned Judge refers, which, in his opinion, were reasonable enquiries, he would have found that there was a trust, and inasmuch as he did not make those reasonable enquiries, he must be taken to have been affected with notice. This is what was meant by the words constructive notice. Therefore, that is the position of the parties.