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1909 Supreme(Cal) 189
CALCUTTA HIGH COURT
Vincent, J., Mookerjee, J.
Nemai Chand Adhya & Anr. - Appellant
Versus
Mir Golam Hossein - Respondent
Decided On : 24-08-1909
Headnote:
Waqf - Mortgage - [Transfer of Property Act, 1882, Section 54; Transfer of Property Act, 1882, Section 100; Muhammadan Law] - The judgment discusses the validity of a mortgage of waqf property, analyzing the principles of Muhammadan Law regarding alienation of waqf properties. The court examines various texts from renowned Muslim jurists, highlighting the requirement of necessity and the Cadi's permission for such alienation. The court concludes that the mortgage in question was valid due to the urgent necessity and the subsequent approval by the Subordinate Judge, who is deemed to have acted as the Cadi in this context. The court also emphasizes that the debt should be repaid from the income of the waqf property, not through the sale of the corpus.
Fact of the Case:
The case involved a mortgage of waqf property by the mutawalli (trustee) to raise funds to prevent the sale of the waqf estate due to unpaid partition costs. The mortgage was executed under dire circumstances, and the mutawalli used the loan to avert the sale.
Finding of the Court:
The court found that the mortgage was valid despite the general prohibition against alienation of waqf property. The court reasoned that the mortgage was executed under grave necessity and that the Subordinate Judge's subsequent approval fulfilled the requirement of the Cadi's permission under Muhammadan Law. The court also held that the debt should be repaid from the income of the waqf property, not through the sale of the corpus.
Issues: The primary issue was the validity of the mortgage of waqf property, specifically whether the mortgage was permissible under Muhammadan Law given the circumstances of necessity and the absence of the Cadi's prior approval. The court also considered the appropriate method for recovering the debt, whether through the sale of the mortgaged property or through the income of the waqf.
Ratio Decidendi: The court's decision rested on the principle that while alienation of waqf property is generally prohibited, it is permissible in cases of urgent necessity and with the approval of the Cadi. The court held that the Subordinate Judge's subsequent approval of the mortgage satisfied the requirement of the Cadi's permission. The court also emphasized that the debt should be repaid from the income of the waqf property, not through the sale of the corpus.
Final Decision: The court allowed the appeal and modified the lower court's decree. The court declared the plaintiffs entitled to recover the principal sum and simple interest from the income of the waqf property, to be collected by a Receiver appointed by the Subordinate Judge.
JUDGMENT
1. This appeal is directed against the decree in a suit to enforce two, mortgage securities executed by the first defendant on the 10th 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 29th 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 10th 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. 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), i
