NEMAI CHAND ADHYA Vs. MIR GOLAM HOSSEIN

JUDGEMENT

(1.) This appeal is directed against the decree in a suit to enforce two, mortgage securities executed by the first defendant on the 10 May 1895 in favour of one Ishan Chandra Addya, now represented by the plaintiffs appellants. One of these bonds was for Rs. 1,500 and the other for Rs. 1,000. No question arises in the present appeal as to the first of these two bonds. As regards the second bond, one of the properties included in it, was covered by a deed of waqf executed on the 29 August 1862, under which the mortgagor was made a mutwalli The question in controversy between the parties relates to the validity of the mortgage in respect of the waqf property. The circumstances under which the waqf property was given in mortgage are not disputed. The properties included in the deed of waqf were zamindaris liable to be partitioned under the Estates Partition Act. In 189-4, one of the co- sharers in the property commenced proceedings under that Act. The estate was partitioned and the waqf properties were made liable for the payment of Rs. 1,275 as the proportionate share of the cost of partition. The Government took statutory steps for realisation of this sum, and as the mutawalli found it impossible to satisfy the demand from the current income of the properties, the Collector fixed the 10 May 1895 for sale of the estate. Under these circumstances the mutwalli effected a mortgage of his own properties and of a portion of the waqf estate, raised a loan of Rs. 1,000, and applied the sum to avert the impending sale. There is no room for dispute, therefore, that the mortgage was created under the gravest necessity of the most urgent character, and that but for the action taken by the mutwalli, the estate would have been unquestionably sold and the waqf destroyed. The Subordinate Judge has held that although these facts are not and cannot be disputed, the mortgage is, upon the authority of the decision of this Court in Shama Churn Boy V/s. Abdul Kabeer 3 C.W.N. 158 absolutely null and void, and that the mortgagee is not entitled to proceed in any -manner against the waqf properties included in the mortgage for the satisfaction of his dues. The position has been controverted before us in appeal. The question raised is one of considerable importance and to determine accurately the rights of the respective parties, it is necessary to examine the leading texts on the subject of alienation of waqf properties, to be found in the writings of Muhammad an Jurists of recognised authority. We proceed to give an English version of these texts of which the originals are appended to this judgment for facility of reference. Text I. If a mutwalli wishes to mortgage or pledge the waqf property as security for loan, it is not valid because such a course would render the waqf useless. Neither the mutwalli nor the people who frequent the mosque (that is, the beneficiaries) can validly do so. If a mutawalli mortgages a house belonging to the waqf and the mortgagee dwells in it, the jurists are of opinion that the latter is bound to pay customary rent, (literally, rent of a similar property), whether the house be in a condition to yield an income or not. This should be done as a measure to safeguard the waqf. (Fatawai Qadi Khan A. D. 1196, Calcutta Edition 1835, Vol. 4, page 218). Text II. If the waqf property has no money (literally income, profits &c.,) in the hands of the mutawalli, the matter should be referred to the Cadi so that the Cadi may order the mulawalli to borrow on (the security of) the waqf for the benefit of the waqf. The mutawalli may not borrow without the sanction of the Cadi. The circumstance which justifies the borrowing arises when there is no income from the waqf property, thereby necessitating borrowing and contracting a loan (Fatawai Qadi Khan, Vol. 4, p. 221). Text III. The saying of the Prophet addressed to Omar when he wanted to appropriate a piece of land belonging to him and called Though : dedicate its corpus (Asl), it shall not be sold nor inherited nor given away as a gift (Hidayah by Burhanuddin A. D. 1197, Calcutta Edition. Vol. II, page 888). Text IV. When a valid waqf is made, its sale and transfer are not permitted (Hidayah Vol. II, p. 897). Text V. It is reported from Imam Muhammad, that it (waqf property) cannot be sold, inherited nor given away as a gift (Hidayah, Vol. IIp. 907). Text VI. If the mutawalli is called upon, to pay the land-tax (khiraj) and tribute (Jibayah) due from the waqf property, and he has not. in his hands anything out of the income of the waqf, the jurisconsult Abdul Kasim says that it is lawful for him to borrow if the appropriated has authorised him to do so. Otherwise, he shall have to pay (that is, the debt incurred without the authority of the appropriator) out of his own property and not out of the income of the waqf. The jurisconsult Abul Layth says that when the mutawalli is confronted with an affair which makes it indispensable for him to borrow, he should do so with the sanction of the Hakim and then pay off the debt out of the income of the waqf because the Cadi has the power of authorising the mutaivalli to borrow on (the security of) the waqf (Isaf by Tarabulusi A. D. 1576, Cairo Edition p. 47). Text VII. When the mutawalli wishes to borrow on the security of the waqf in order to pay off the mortgage-money, (literally, price of mortgage), he is empowered to do so with the sanction of the Cadi; otherwise, not. Thus, it is laid down in the Sirajiyyah. The circumstance which justifies borrowing arises when there is no income of the waqf, and thereby necessitates borrowing and contracting loan. But if there be any income of the waqf, and the mutawali applies his own money for the benefit of the waqf, he may recover the amount from the income of the waqf. Thus it is laid down in the Fatawai Qadi Khan (Fatawai, Alamgirie, Calcutta Edition Vol. II p. 519). Text VIII. It is not permitted to borrow on (the security of) waqf property, except when recourse to it becomes necessary for the benefit of the waqf, for example, for the purpose of repairs and purchase of seed grains. In such a case, it is permitted, subject to the following two conditions (I) the permission of the Cadi, but if the Cadi happens to be at a distance he may borrow on his own authority; (2) when it was not possible to lease the property (literally, corpus) and to spend the rents &c, arising therefrom. (Durral Mukhtar, by A1 Hiskafi, A.D. 1677, Constantinople Edition, Vol. Ill p. 649). Text IX. When it is indispensable to borrow, it is permitted "with the sanction of the Cadi: if he does not happen to be at a distance from him (that is, the mutaivalli), because the Cadi has general powers with respect to what is beneficial for the Muslims. And it is said, it is permitted unrestrictedly (that is, borrowing is permitted even without the sanction of the Cadi) for the purpose of repairs, but the first view is relied upon by the school (Ruddal-Mukhtar by Ibn Ahidin A. D. 1836, Constantinople Edition, Vol. Ill p. 649). Text X. It is laid down in the commentary of Tanwir, the mutawalli cannot borrow on (the security of) the waqf for the purpose of repairs, except with the permission ,of the Cadi. If the above-mentioned mutawalli (that is, the mutawalli mentioned in the question to which the Fatwa is the answer), borrows with his (Cadi s) permission for the purpose of repairing waqf property, the beneficiaries cannot demand, their dues till the debt is satisfied (Fatwa Mahdiyah by Sheikh-ul-Islam Mohammad Al Abbasi, grand mufti of Egypt A. D. 1883, Vol. II p. 469). Text XI. It is not permitted to borrow on (the security of ) waqf except subject to the following three conditions: (1) for necessity, for example repairs, (2) permission of Cadi, (3) that it was not possible to lease the property and spend the income arising therefrom (Fatawa Mahdiyah, Vol. II p. 512).

(2.) These texts indicate that property which has been validly dedicated as waqf cannot, unless the mutawalli is expressly empowered by the deed of endowment to do so, be ordinarily sold or mortgaged. If, however, necessity is established and the permission of the Cadi is obtained, such, alienation is valid. Some of the texts, however, indicate that the mutawalli may borrow on his own authority if the Cadi happens to be at a distance; but the condition is imposed that the waqf property should not be mortgaged if the same object can be attained by a lease. This would seem to show that the previous permission of the Cadi is not a condition precedent; and Sir Roland Wilson appears to favour this view, when he suggests that the transaction may be retrospectively confirmed by the Court (Anglo- Mohamedan Law 3 Edition Section 337). In cases in which the permission of the Cadi has to be obtained, the question may arise as to which officer under the British system of administration of Justice is to be regarded as qualified to discharge his duties. The case of Shama Churn Boy V/s. Abdul Kabeer 3 C.W.N. 158 adopts the view that the Civil Court of superior jurisdiction in the District is vested, generally speaking, with the powers exercised by the Cadi under the Mahomedan regime. Again, in the case of In Re: Woozatunnessa Bibi (1909) 1 Ind. Cas. 512 : 36 C. 21, it was ruled that in Presidency (owns, the High Court in its original jurisdiction can authorise, under Muhammadan Law, dealings with waqf property. It must be conceded, however, that the British system of administration of Justice differs in so many essential respects from the Mohamedan system that any analogy between the position of a Cadi and that of a District Judge or of a Judge of this Court exercising original jurisdiction must be more or less far fetched, and we can see no reason why an approval by a Subordinate Judge of a transaction by which waqf property is mortgaged, provided he has jurisdiction over the waqf property, should not be quite as effectual as a sanction by a District Judge. The truth is that the analogy is more or less artificial, as the Cadi (who was ordinarily assisted by a mufti) was entrusted with the exercise of discretion in this matter, not merely because he was a Judicial officer, but also because he was well qualified to form an opinion as to what would be beneficial to Moslems from an orthodox religious point of view. Apart from this aspect of matters, in the case before us there is no question as to the absolute necessity for the mortgage and of the undoubted benefit which has been conferred on the endowment by the transaction. There is no question also that within the meaning of the rule as laid down in Text VIII, quoted from the Durral Mukhtar and Text IX from the Ruddul Mukhtar, the Cadi was at a distance from the place where the properties were situated and the transaction took place. The Subordinate Judge has found that the mortgage was proper and may, in substance, be taken to have retrospectively approved of it. It is difficult to appreciate how, under these circumstances, the mortgage can be treated as void. The view that we take is substantially supported by modern text-writers. Thus for instance Baillie in his Digest of Mohamedan Law (Vol. I, 1 Edition page 597, 2nd Edition, page 608) describes the circumstances in which the Superintendent is allowed to borrow, and points out that for the payment of land-tax or tribute, when there is no means to pay them out of the waqf, the mutawalli may borrow with the sanction of the Judge, the loan to be afterwards repaid out of the produce. Ameer Ali observes (Mohamedan Law, Vol. I) page 374) that this rule should not be too literally understood, and that the prohibition against the creation of debts by the mutawalli could not have been intended to refer to such debts as owing to the exigencies of society must necessarily, be contracted from day to day for the due discharge of the works of the trust. Mous Clovel in his Treatise on Waqf or Habons deals with this subject at length. In Section 152, he observes as follows: From the fact that the immovable property cannot be alienated when the question is concerned with the waqf of the immovable property, it results that it is susceptible neither of hypothecation nor of attachment. This principle is beyond all discussion. It has been judged by the Courts of Alexandria that hypothecation agreed upon by the owner with respect to property which he has previously made waqf of, is null, and also, that waqf lands cannot be the object of an attachment or sale, or of any alienation whatever and, therefore, are not susceptible of hypothecation. The Court of Algeria has in the same way proclaimed that immovable property, made a Habons of, ought to remain exempt from all charges in the hands of the beneficiary. The creditors of the beneficiary have no sort of privilege in the immovable property, whatever be the origin of their debts." In Section 250, the learned author makes the following remarks: The Nazir (the muta-walli) not having the power of mortgaging either the property or the income of the waqf, cannot contract loans. This principle is invariable. It may, however, happens, that a loan is absolutely necessary, for example, to provide for urgent repairs, and avoid deterioration, or even the demolition of the immovable property. In this case, the Cadi may authorise the Nazir to borrow the sum indispensably necessary; but all obligations, contracted by the Administrator without a formal authorization, are radically null with regard to the waqf. As said in the El. Bahr, borrowing is absolutely prohibited of things which can be dispensed with; for indispensable things, it cannot be validly contracted except by the authorization of the Cadi." It is worthy of note that the modern text-writers Baillie, Clovel, and Amir Ali, do not discuss the question when the matter is one of urgent necessity and the Cadi is at a distance, nor do they examine the effect of retrospective approval by the Cadi. The texts, however, to which we have referred, indicate plainly that the consent of the Cadi is essential whenever he is available, and if so, there is no reason why approval subsequent to the transaction should not be treated as effective in the same manner as approval prior to the transaction. It is but rational to hold that that the approval of the Cadi was deemed requisite, primarily with a view to make sure that the loan was necessary, and, in this view, approval, antecedent or subsequent, ought to be equally effectual. Tested in the light of these principles, it is clear that in the case before us, the mortgage-debt ought to be treated as a valid charge upon the waqf properties.

(3.) The next question which requires consideration is, what directions should be given for the recovery of the debt. The texts quoted above indicate that, if practicable, the debt ought to be repaid out of the income of the waqf properties. The sixth text quoted from the Isaf of Tarabulursi shows that the mutawalli who raises a loan on mortgage of the waqf properties should pay off the debt out of the income of the waqf. The eighth text quoted from the Durral Mukhtar and the eleventh text from the Fatawa Mahdiyah point in the same direction, when they lay down that a recourse to mortgage is permissible only when it is not possible to lease the corpus and spend the income thereof. To the same effect is the tenth text which shows that when a valid mortgage has been effected for necessity and approved by the Cadi, the beneficiaries cannot demand their dues till the debt is satisfied.