The main legal point established is that under the Muhammadan Law, the power of a Mutwalli to mortgage Waqf properties is limited to cases where it may be necessary to borrow money for the purposes of the Waqf, and the burden of proof is on the mortgagee to prove the necessity of borrowing money.

JUDGMENT

1. This is an appeal by the plaintiff in a suit for a declaration that the mortgage by defendant No. 2 of the properties in suit to defendant No. 1 is void and not enforceable against Waqf estate, of which defendant No. 2 is the Mutwalli. One Kamal Sharif executed a Wakfnama on the 4th November, 1892, and appointed his two sons by his two wives as Mutwallis in respect of his Waqf properties which were divided into two parts, each Mutwalli holding one half. The defendant No. 2 was thus the Mutwalli of one half of the Waqf properties in which the plaintiff and some other defendants were beneficiaries. Defendant No. 2 mortgaged the Waqf properties to one Sasi on the 11th August, 1906. On the 31st May, 1911, he mortgaged the same properties to one Kazi and out of the consideration for this mortgage he liquidated the first mortgage. On the 13th February, 1914 he mortgaged, the Waqf properties for the third time for Rs. 3,000 to defendant No. 1 and paid off the second mortgage. It is beyond controversy that a Mutwalli has no power under the Muhammadan Law to mortgage or transfer the Waqf property or any portion of it without the leave of the Kazi or the Court. Such a transfer is under the law void: Shama Churan v. Abdul Kabeer 3 C.W.N. 158. The power and liability of a Mutwalli have been authoritatively settled in the recent case of Vidya Varuthi Thirtha v. Balusami Ayyar AIR 1922 P.C. 123, which has been followed by their Lordships of the Judicial Committee in the more recent case of Abdur Rahim v. Narayan Das Arora AIR 1923 P.C. 44. These cases lay down that the curator of a Waqf whether called Mutwalli or Sajjadanashin or by any other name, is merely a manager. The facts of the case of Abdur Rahim v. Narayan Das Aurora AIR 1923 P.C. 44 are very similar to those of the present case. There also the previous Mutwalli had mortgaged the Waqf property and the mortgagee in execution of a decree in the suit upon the mortgage obtained possession of the Waqf property. The subsequent Mutwalli brought a suit for declaration that the alienation by the previous Mutwalli was not binding on the Waqf and so far was void. This contention was successful and their Lordships stated the fundamental principle which governs the handling of Waqf properties under the Muhammadan Law as follows:-" Where an attempt is made to grant a mortgage for purposes foreign to the necessary purposes of the Waqf, which is therefore as such unsustainable, the whole mortgage fails." They added "Their Lordships are of opinion that for an advance of money, otherwise than to satisfy the legitimate needs and purposes of the Waqf, no part of the property held in Waqf is chargeable either by the settlor or by the Court. This is in accord with the view taken by this Court in the case of Nimai Chand v. Golam Hossein [1909] 37 Cal. 179 where the Muhammadan Law as found in the original texts has been expounded in detail. This being so, the only question that needs our consideration is whether the mortgage challenged in this suit was made for the purposes of the Waqf, or, as the Judicial Committee put it, to satisfy the legitimate needs and purposes of the Waqf. In the Waqfnama there is a provision to the following effect: "The Mutwalli or the Mutwallis may, if necessary, grant permanent or Mourashi pottahs in respect of any of the Waqf properties or of any part thereof. He or they may also, if necessary, borrow money by mortgaging any of the Waqf properties or any part thereof." Under this deed the power of the Mutwalli to mortgage Waqf properties is limited only to such cases where it may be necessary to borrow money. Both the Courts below have taken the view that, where power is given to a Mutwalli to mortgage a Waqf property, though saddled with a condition, the mortgagee who advances the money in good faith is not bound to satisfy himself that the condition precedent to the exercise of the power of the Mutwalli to mortgage the Waqf estate is in fact established; and the