PIRATLA PEDA VENKATASUBBARAYUDU Vs. HAJI SILAR SAHIB

JUDGEMENT

(1.) The main question in this appeal is one of limitation. The plaintiffs father was the Muttawalli of a mosque for the lighting in which the suit wakf was endowed. He and his eldest son, the 1 defendant, sold the property to the father of defendants 2 and 3 (and grandfather of 4 defendant) on 25 November, 1909. The vendee held the pro-pert until the date of the suit, 27 March, 1922. The plaintiffs sue to declare that the sale is invalid and for recovery of possession of the property for the mosque. Both the Lower Courts decreed the suit and defendants 2 to 4 appeal.

(2.) The main point argued is that the suit is time-barred. It is conceded that, on the latest rulings of the Privy Council, Art. 134 has no application to the case, and Art. 144 is the proper Article. The appellants contend that the wakf property is inalienable and that, therefore, time begins to run from the date of the sale, on which date the vendee came into possession, and that, therefore, the vendee has prescribed for much more than 12 years adverse possession. The plaintiffs contend that time began to run from the date of the death of the last Muttawalli, which occurred on the 6 March, 1915. The Lower Courts have upheld the latter contention.

(3.) Both the Courts are agreed that the property is wakf and for the purpose of this argument it will be taken to be so. It is not trust property strictly speaking. Prima facie then it vests in the deity and is inalienable. The plaintiffs contend that when a beneficial interest is retained in the property, say for the family of the founder, the sale of the whole property is valid during the life-time of the vendor, and that limitation only begins to run from his death. That proposition has been approved in a number of reported rulings as applying to the case of the head of a Hindu mutt. The plaintiffs seek to apply it by analogy to the case of the Muttawalli of a mosque. The appellants contend that there is no such analogy, and that it is a fundamental proposition of Muhammadan Law that the whole property vests in the deity so as to forbid any retention of beneficial interest in any one apart from the interests of the institution.