SHANKARLAL TAPIDAS Vs. SECRETARY OF STATE FOR INDIA

JUDGEMENT

(1.) In consequence of the difference of opinion between Heaton and Hayward JJ. who heard this appeal, it has been referred to me under Section 98 of the Code of Civil Procedure in accordance with the conclusion arrived at by the Full Bench in Bhuta Jayatsing v. Lakadu Dhansing(4) as to the procedure to be followed in such cases.

(2.) The points of law upon which they differ have been stated thus: " (1) Is it to be taken as implied by the pleadings in the case that the plaintiff s predecessor-in-title became the holder of the lands by a lawful alienation ? (2) If not, then aa a matter of law does the Sanad imply the following condition : that if the lands cease to be the endowment property of the mosque otherwise than by a lawful alienation, the Government may levy the full assessment on the lands ? "

(3.) As to the first question it is not disputed before me, and both the differing judgments proceed on the hypothesis that for the purpose of this suit the plaintiff must be taken to have acquired a lawful title to the laud in suit, quite apart from the question whether the original alienation in favour of the ancestor of the plaintiff s predecessor-in-title was lawful or not. I am not concerned in this litigation with the question whether the manager of the mosque has now any right to the land in suit against the plaintiff: and I express no opinion whatever on that question. The plaintiff must be taken in this suit to have acquired a lawful title to the land. The question, whether the original alienation in favour of the ancestor of Punjabhai, who mortgaged the land in 1897 and subsequently sold it in 1906 to the present plaintiff, was lawful or not stands on a different footing. The plaint refers to this alienation in favour of Punjabhai s ancestor more than sixty years ago : and in the written statement it is pleaded that the land in suit is Devasthan land and the plaintiff and his predecessor-in-title have purchased it with knowledge of the nature of the land and the consequent liability of the grantee to apply the income to religious purposes. It is difficult to say that the defendant questioned the validity of the alienation referred to in the plaint; and it is urged for the appellant that the defendant did not care to put the plaintiff to the proof of the propriety and validity of an alienation, which took place many years ago. it is urged that the existence of a local custom in the District of Broach in favour of an alienation of wakf property is recognize 1 by Westropp C. J. in Abas Alli v. Gulam Muhammad(1863)1 B.H.C.R. 36 and that in Narayan v. Chintaman(1867)4 B.H.C.R. (A.C.J.) 1, the learned Chief Justice, while referring to the inalienability of religious endowments, whether Hindu or Mahomedan, recognises certain exceptions including the exception based on the local custom referred to. Further it cannot be said that according to Mahomedan law the wakf property can never be validly alienated. Under these circumstances I think" that on the pleadings the alienation in favour of Punjabhai s ancestor may be properly taken to be lawful. This point, however, has no practical importance, having regard to the view, which I take of the second question : and I should hesitate to base my decision on such an implication from the pleadings. If the ultimate decision depended in any way on this point, I might have considered the suggestion that in the interests of justice it would be proper to send down an issue on the point, to allow the parties an opportunity of adducing evidence thereon, and to decide the question on proper materials instead of basing an inference in favour of the plaintiff on the pleadings.