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1933 Supreme(SC) 80
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD ATKIN, LORD RUSSELL OF KILLOWEN, LORD MACMILLAN, LORD WRIGHT, AND SIR LANCELOT SANDERSON.
ALLAH RAKHI - Appellant
Versus
MOHAMMAD ABDUR RAHIM - Respondents
On appeal from the High Court at Allahabad.
Decided On : Dec. 18. 1933.
Solicitors for appellants :Douglas Grant & Dold. Solicitors for respondent No. 1: Hy. S. L. Polak & Co.
Under Muhammadan law, a wakf manager is not a trustee in the English sense as ownership vests in the Almighty; thus, unamended Section 10 of the Limitation Act, 1908, does not apply. Adverse possession requires proof of continuity and publicity, excluding possession by leave and license.
Headnote:(A) Indian Limitation Act, 1908 - Section 10 - Articles 139 and 144 - Transfer of Property Act, 1882 - Section 105 - Wakf property - Manager of wakf not a trustee in the technical English sense - Property vests in the Almighty - Unamended Section 10 of the Limitation Act does not apply to religious or charitable endowments under Muhammadan law.
(B) Adverse Possession - Onus of proof - Possession must be adequate in continuity, publicity, and extent to be adverse - Possession by leave and license, induced by continued performance of services, does not constitute adverse possession.
Facts of the case:
A village dedicated as wakf for the maintenance of a shrine and its manager. Certain attendants were settled on the land in return for their services. Following their dismissal from service, they remained in possession of the land. A suit for possession was subsequently instituted by the manager.
Findings of Court:
The defendants failed to establish that their possession after dismissal was adverse to the title of the manager. The occupation was consistent with leave and license granted due to the attendants' continued service at other shrines in the village.
Issues: Whether the suit for recovery of possession was barred by limitation under Section 10 or Articles 139 and 144 of the Indian Limitation Act, 1908, and whether the possession of the attendants had become adverse.
Ratio Decidendi: The court held that under Muhammadan law, the manager of a wakf is not a trustee in the technical sense as understood in English law, as ownership vests in the Almighty; therefore, the unamended Section 10 of the Limitation Act, 1908, is inapplicable. Additionally, possession is not adverse if it is permitted by the owner based on a continuing relationship of service.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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property law
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wakf
- management and administration
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wakf
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limitation law
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statutory limitation
- trusts
- adverse possession
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statutory limitation
Judgement
Appeal (No. 17 of 1932) from a decree of the High Court (July 24, 1930) affirming a decree of the first Subordinate Judge of Saharanpur (January 19. 1927).
In 1925 the first respondent, as sajjadanashin of a wakf, instituted a suit against the appellants and the other respondents (joined in the appeal pro forma) for possession of certain land in the village of Piran Kalliar Sharif. The village had been dedicated as wakf during the Moghul empire for the maintenance of a shrine there situate and the support of the sajjadanashin. At some date earlier than 1758 the sajjadanashin had settled the lands in suit with the ancestors of certain of the defendants as mujawars (sweepers and attendants) of the shrine ; the other defendants were transferees from the mujawars under transfers made within twelve years of the suit. In 1S9S the plaintiffs predecessor as sajjadanashin had dismissed the mujawars from service and appointed others ; in a suit brought by them the High Court, affirming the lower Court, had held that the dismissal was in accordance with law.
Various defences were raised, among them that the property in suit had not been dedicated in wakf. and that the suit was barred by limitation.
The facts appear more fully from the judgment of the Judicial Committee.
The High Court affirmed a decree for possession made by the trial judge. The learned judges (Banerji and King JJ.) agreed with his finding that the whole village had been dedicated, also with his view that s. 10 of the Indian Limitation Act, 1908, applied and precluded the defence of limitation.
1933. Nov. 27, 28, 30. De Gruyther K.C. and Sir Thomas Strangman for the appellants. The suit being before Act I. of 1929, which amended s. 10 of the Limitation Act, the property in suit was not " vested in trust for a specific purpose " within the meaning of s. 10 and the section did not apply Vidya Varuthi Thirtha v. Balusami Ayyar (( 1921) L. R. 48 I. A. 202.); Annamalai Chettiar v. Muthukaruppan Chettiar (( 1930) L. R. 58 I. A. 1.); Mohunt Bhugwan Ramanuj Das v. Ramkrishna Bose . (( 1919) 26 Cal. W. N. 722 (P. C).) As in the case last mentioned the suit was barred by art. 139. The mujawars were merely servants and their holding a lease within the definition in s. 105 of the Transfer of Property Act, 1882 ; as the suit was not brought within twelve years of their dismissal it was barred by art. 139. Alternatively, the suit was barred under art. 144 by adverse possession for over twelve years. Bilas Kunwar v. Desraj Ranjit Singh (( 1915) L. R. 42 I. A. 202.) is distinguishable, because in that case the defendants case was that the plaintiff never had a title, not that his right to possession had become barred.
Dunne K.C. and Jinnah for respondent No. 1. Even if, having regard to the judgment of the Board in Vidya Varuthis case (L. R. 48 I. A. 302.), s. 10 of the Act does not apply, the decree was right. The title of the plaintiff was established, and the suit was not barred by limitation. Art. 139 does not apply, as there was no tenancy within that article. It is only upon this appeal that that article has been relied upon, and the con tention that it applies is entirely inconsistent with the adverse possession which was pleaded. The onus was upon the defendants, and having regard to the facts it was not established that their possession after 1900 was adverse to the title of the plaintiff. The facts are more consistent with the view that they were allowed to remain in possession as attendants at the other two shrines in the village.
De Gruyther K.C. replied.
Dec. 18. The judgment of their Lordships was delivered by
SIR LANCELOT SANDERSON. This is an appeal by defendants, and the representatives of defendants who have died since the institution of the suit, against the judgment and decree dated July 24, 1930, of the High Court of Judicature at Allahabad, confirming the decree of the first Subordinate Judge of Saharanpur dated January 19, 1927.
The question which falls
