1840 (12) TMI 1 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the property in question was Wukf and therefore inalienable.
2. Whether the transfer of the property in 1807 and 1810 was valid.
3. Whether the Plaintiff's suit was barred by the lapse of time.
4. Whether the Defendant was entitled to retain the property or receive repayment of the loan.

Issue-Wise Detailed Analysis:

1. Whether the property in question was Wukf and therefore inalienable:
The Plaintiff contended that the villages were granted for the maintenance of a religious establishment and should be considered as Wukf, making them inalienable. The Defendant argued that the property was a proprietary interest given by royal authority and could be disposed of by the grantees and their heirs. The Court examined historical documents, including royal Firmans from 1717 and 1762, which indicated that the grants were made for religious purposes, specifically for the Khankah of Sheikh Kubeer. The Court referred to the case of Kubeer-ood-deen v. Mussumat Kadira and the opinions of native law-officers, concluding that the property was indeed Wukf and therefore inalienable.

2. Whether the transfer of the property in 1807 and 1810 was valid:
The Plaintiff argued that the 1807 transfer was conditional and akin to a mortgage, which could not be foreclosed without following specific procedures under Bengal Regulation XVII of 1806. The Defendant contended that the 1810 transfer made the sale absolute. The Court found that the 1810 transfer, executed shortly before Shah Shumsh-ood-deen's death, was fraudulent and invalid. The Court also noted that the 1807 transfer had not become absolute due to non-compliance with the required procedures. Therefore, both transfers were deemed invalid.

3. Whether the Plaintiff's suit was barred by the lapse of time:
The Defendant argued that the Plaintiff's suit was barred by the lapse of more than twelve years from the 1810 sale to the commencement of the suit in 1822, relying on Regulations III of 1793 and II of 1805. The Court noted that the Plaintiff was underage at his father's death in 1810 and was appointed as Mutwaly in 1819. The Court concluded that the Plaintiff, as Mutwaly, was not barred by the lapse of time because he was acting in his official capacity to protect the Wukf property, and the twelve-year limitation did not apply to public rights or claims instituted on behalf of the Government.

4. Whether the Defendant was entitled to retain the property or receive repayment of the loan:
The Court determined that the Defendant's possession of the property was illegal since the transfers were invalid. The Plaintiff, as Mutwaly, was not required to repay the loan because the Defendant had already benefited from the long possession of the property. The Court also found that the Plaintiff was not obligated to account for the mesne profits, as the Defendant's possession was deemed illegal.

Conclusion:
The Court affirmed the judgment of the Sudder Dewanny Adawlut, concluding that the property was Wukf and inalienable, the transfers were invalid, the Plaintiff's suit was not barred by the lapse of time, and the Defendant was not entitled to retain the property or receive repayment of the loan. The Plaintiff's claim was upheld, and the costs of the parties in both Courts were to be defrayed respectively by each party.