JUDGMENT

Mookerjee and Vincent, JJ. - 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 mutawalli. 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 zemindaries liable to be partitioned under the Estates Partition Act. In 1894, 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 realization 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 the sale of the estate. Under these circumstances, the mutawatti effected a mortgage of his own properties and 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 mutawatti, 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 Roy 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. This 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 alienations of waqf properties, to be found in the writings of Mahomedan 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.

2. If a mutawalli 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 mutawalli 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. (Fatawa Qadi Khan, A.D. 1196, Calcutta Edition 1835, Volume 4, page 218.)

Text II.

3. If the waqf property has no money (literally income, profits, etc.) in the hands of the mutawalli the matter should be referred to the Cadi, so that the Cadi may order the mutawalli 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 circumstances which justify the borrowing arise when there is no income from the waqf property, thereby necessitating borrowing and contracting a loan. (Fatawa Qadi Khan, Volume 4, page' 221.)

Text III.

4. The saying of the Prophet addressed to Umar when he wanted to appropriate a piece of land belonging to him and cal