The main legal point established in the judgment is that the suit regarding the sale of wakf property was not barred by limitation as the Muttawallis had a beneficial interest in the property.

Wallace, J.

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 1st defendant, sold the property to the father of defendants 2 and 3 (and grandfather of 4th defendant) on 25th November, 1909. The vendee held the pro-pert until the date of the suit, 27th 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, Article 134 has no application to the case, and Article 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 6th 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.

4. Whether in the present case any beneficial interest was retained for the Muttawalli himself is essentially a question of fact, and that question both the Lower Courts have answered in the affirmative. In fact the statement in the plaint that the surplus income is to go to the family of the grantee was not controverted in the written statement, and that has been the custom for 150 years. Now wakfs of this quasi-public kind are of common occurrence in this Presidency and elsewhere, and have been recognised as valid by the Privy Council. See Abdur Rahim v. Narayan Das Aurora (1922) L.R. 50 I.A. 84 : I.L.R. 50 C. 329 : 44 M.L.J. 624 (P.C.), where the Privy Council laid down at page 334:

The original settlement was undoubtedly a valid creation of a wakf, for the provision intended to benefit the family of the settlor was not the preponderating feature of the settlement, nor was the provision made for the perpetuation of religious ceremonies and charitable gifts by any means illusory or unsubstantial.

See also Majib-un-nissa v. Abdul Rahim (1900) L.R. 28 I.A. 15 : I.L.R. 23 A. 233 : 11 M.L.J. 58 (P.C.) therein quoted. There is, therefore, nothing contradictory to Muhammadan Law in such quasi-public wakfs; and we must accept the finding of fact, not controverted in the written statement, that this wakf is one which itself provided for the private benefit of the family of the grantee as well as for the public benefit of the mosque, though the dominant purpose no doubt was to endow the mosque. The rulings of the Privy Council in Ramanadhati Cheltiar v. Vava Levvai Marakayar (1916) L.R. 44 I.A. 21 : I.L.R. 40 M. 116 : 32 M.L.J. 101 (P.C) and Arunachalam Chetfy v. Venkatachalapathi Gurns-wandgal (1919) L.R. 46 I.A. 204 : I.L.R. 43 M. 253 : 37 M.L.J. 460 (P.C) indicate that a