JUDGMENT
B.B. Ghose, J.
1. These two appeals arise out of two suits which ware dismissed by the Subordinate Judge of Dacca on the 12th of September 1924. The plaintiffs sued for possession of 17 gandas 6 dantis 4 jobs and 34 renus share of four zamindaries on the allegation that they had purchased that share on July 9, 1913, in execution of mortgage decree obtained by them against their mortgagors. Two suits were brought in two districts as the properties were situated in different districts and one of the suits was transferred to Dacca under the orders of this Court. The questions involved in the two suits being the same they were tried together and were governed by the same judgment. The two appeals have also been heard together and will be disposed of by one judgment.
2. The mortgage in favour of the plaintiffs was executed in May 1906 and the suit out of which these appeals arise were brought in May 1916. There wore four mortgagors but the mortgage suit against one of the legal representatives of one of them named Abdul Majid alias Hala Mia had abated and the decree was with regard to the shares which the three other mortgagors and the shares of the other legal representatives of Hala Mia purported to have in the mortgaged properties. There is no question before us as to the validity of the mortgage decree or the sale thereunder. these persons who purported to mortgage their shares in the properties in suit to the plaintiffs will henceforth be described as the mortgagors. After the execution purchase the plaintiffs endeavoured to take possession of the share sold but they were resisted by the defendant. There were certain intermediate proceedings, which it is unnecessary now to state, in which the defendant was successful. Ultimately the plaintiff’s brought the present suits.
3. The Subordinate Judge has given an elaborate statement of the facts which give rise to the controversy in the suits in question. The material facts as to the dealings with the property before the mortgage would also appear in the judgment of the Judicial Committee in the case of Khajeh Solehman v. Salimullah A.I.R. 1922 P.C. 107 to which it will be necessary for me to refer fully hereafter. I need only give a brief summary of the facts.
4. On May 8,1846, corresponding to the 27th Baisakh 1253 B.S. certain person belonging to the same family, among whom were the ancestors of the mortgagors, executed a deed by which they purported to create a wakf of certain properties including the properties now in dispute for the benefit of themselves and. their descendants generation after generation and ultimately for the poor and destitute. They appointed Abdul Gani to be mutwalli of the properties and directed him to pay certain allowance to the grantors who were members of the family. On September 11, 1868, Abdul Gani appointed his son Ashanullah to be mutwalli in his place and on the same date Abdul Gani executed another deed also purporting to make wake of certain other properties of which he claimed to be the sole owner and appointed his son mutwalli of these properties also and directed him to pay certain allowances to members of the family described in that deed. The mortgagors did not get any interest under the provisions of this deed of 1868.
5. In the year 1880, some members of the family brought a suit for accounts against Sir Abdul Gani and his son Nawab Ashanullah. The relevant portions of the plaint are as follows:
The said Alimullah (father of Sir Abdul Gani) prevailed upon the Plaintiffs Nos. 20 and 21 and the ancestors of the remaining plaintiffs and of the co-sharer defendants and with their consent placed on the 27th Baishakh 1253 B.S. the said management in the hands of the Defendant No. 1 and entrusted him with the management and preservation of all descriptions of properties of the plaintiffs and the co-sharer defendants; and thus the Defendant No. 1 continued to do the management. The document of 27th Baisakh, 1253 B.S. propounded by the Defendants Nos. 1 and 2 is as a matter of fact not a towliatnamah. It is only an in strument by which the management of the estate was made over. At that time most of the members ct the plaintiffs’ family were minors and females; and even if he (Defendant No. 1) fraudulently inserted into it the terms “mutwalli” “wakf” (endowment) etc. without the knowledgde of the parties concerned, the said instrument cannot be regarded as a towliatnamah nor are the plaintiffs bound by it Besides it was not executed according to the regulations and the Mahomedan Law…
6. In the schedules to the plaint the properties comprised in the deed of 1868 were also included as having been acquired with the income of the properties in the deed of 1846. The Defendant No. 1 was Abdul Gani and Defendant No. 2 was Ashanullah. The question as to the validity of the wakf of 184G was thus distinctly raised in the suit. Three of the mortgagors and the father of the fourth were plaintiffs in that suit.
7. The case was heard by the Subordinate Judge but before judgment was pronounced some friends of the family, including men in very high position, intervened and brought about a compromise. Two documents were executed, one dated August 26, 1881, signed by all the members of the family except Sir Abdul Gani and Nawab Ashanullah and the other dated September 17, 1881, signed by Ashanullah alone. The main controversy in these appeals is with regard to the effect of the document of August 26, 1881. By reason of the agreement made by the document of August 26, 1881, all the defendants in the suit other then Sir Abdul Gani and Nawab Ashanullah were transferred to the category of plaintiffs and they made an application to the Court for withdrawing the suit on the same day reciting some of the provisions of the agreement and admitting the validity of the wakfnamah of the 27th Baisakh 1253. The prayer in the application runs thus:
On these terms we beg to file this petition and pray that this suit be allowed to be withdrawn without any right of instituting a fresh suit on any causes of action which form the subject-matter of this suit.
8. The suit was thus withdrawn.
9. By a series of decisions from the year 1889 the Privy Council held that a wakf such as was sought to be made under the deeds of 1846 and 1868 was void under the Mahomedan law : Mahomad Ashanullah v. Amar Chand [1889] 17 Cal. 498; Abdul Gafur v. Nizamuddin [1892] 17 Bom 1; Abdul Fata v. Rasamaya [1894] 22 Cal. 619; Muhammad Munawar Ali v. Razia Bibi [1905] 27 All. 320. In January 1895 Sir Abdul Gani executed a heba-bil-ewaz in favour of his son Ashanullah and his heirs, of the properties included in the wakfnamah of 1868, as he was advised that the wakf was invalid by reason of the decision of the Privy Council. In that deed he stated that he was bound by the provisions of the agreement of August 26, 1881 and that the donees would hold the properties subject to the legal effect of that agreement.
10. Shortly afterwards Ashanullah stopped payment of the allowance to some of the members of the family on which they brought a suit against heirs for their allowances in 1914, which was carried up to the Privy Council, and the argument before us has been mainly with regard to the effect of that decision.
11. One other fact need be mentioned subsequent to the decision of the Privy Council as to the invalidity of such wakfs. Ashanullah or his successor began to purchase or take leases of what was described as maliki interest from various members of the family in the properties comprised in the deed of 1846. They thus acquired about 11 annas share of these properties. The shares of the mortgagors were not included in these transactions.
12. I shall now quote some of the principal terms of the agreement of August 26, 1881, which have been recited fully in, the judgment of the Subordinate Judge.
Clause 3. The persons signing this memorandum admit that save and except as hereinafter provided neither they nor any of them have or has any claim to or interest in any of the properties in the possession of Nawab Abdul Gani and Ashanullah or either of them, or belonging to them or either of them, and registered whether in their or either of their names or in the names of others. 4. The persons signing tins memorandum of agreement admit that the two deeds of 1253 and 1275 (1846 and 1868) are valid and binding deeds of wakf.
13. Under Clause 5 it was admitted that properties constituted wakf by the deed of 1846 consisted of these described in Schedule A and these so constituted by the deed of 1868 consisted of the properties in Schedule B and no other properties were to be held as wakf. By this clause of the agreement 161 items of property were released from all claims of the plaintiffs in the suit of 1880. Clause 6 recited that Nawab Ashanullah consented to pay certain allowances to members of the family who were placed in two groups in Schedules C and D of the memorandum. these who were included in Schedule G were to get their allowances out of the properties in Schedule A which were included in the deed of 1846 and these placed in Schedule D were to get their allowances out of the income of the properties in Schedule B which comprised the properties in the deed of 1868. For the purpose of the present appeals it is not necessary to recite any other terms of the agreement. The memorandum was registered and was signed amongst others by three of the mortgagors and the father of the fourth. Nawab Ashanullah alone signed the agreement of September 17, 1881 by which he agreed to pay the allowances.
14. The defendant in this case is the successor-in-interest of Nawab Sir Ashanullah. His main defence was that the wakf of 1846 was valid and the allowances mentioned in the memorandum of agreement of 1881 were purely compassionate allowances and were not payable to the descendants of the signatories or their transferees. It was also urged that the suits were barred by limitation. Various other questions were raised in the Court below, many of which were not urged before us. The Subordinate Judge dismissed the suits on the ground that by the two deeds of 1881, the title of the mortgagors to the disputed properties ceased save for the annuities referred to, and that the mortgagors had no title which they could mortgage or which could pass to the purchasers. He purported to base this decision on the judgment of the Privy Council in the case of Solehman Quadir v. Salimullah A.I.R. 1922 P.C. 107, already referred to.
15. There is no question before us that the wakfs purported to have been created by the deeds of 1846 and 1868 are invalid. It has been so held by the Privy Council in the case already referred to. The main argument of the appellants is that the wakf having been declared invalid no title to the property was conveyed to Ashanullah by the document of August 26, 1881. The ultimate gift for wakf (or as it was put, the gift to God) having failed the title remained in the grantors and the effect of the document is that it merely gave authority to Ashanullali for the management of the properties for and on behalf of the grantors. This being a deed of management could not operate as an assignment of the right of the grantors in perpetuity but it was a. personal agreement which is not binding on their assignees. The plaintiffs therefore are entitled to recover possession of the shares of the mortgagors by virtue of their execution purchase.
16. Even if I were inclined to accept that argument as sound, which I am not, I do not think I would be free to give effect to it, having regard to the decision of the Privy Council. What their Lordships say with regard to the agreement is this:
The principal purpose of these agreements was to secure to living and named persona certain fixed allowances which were to become payable immediately and were to be continued to their heirs. It is true that the agreements purported to confirm the wakfnamas, and that, the allowances were made payable by the hand of the mutwalli of the wakfnames out of the income accruing to him from the properties-thereby settled; but allowances were intended to take effect as immediate and heritable charges on such incomes taking priority of all the limitations contained in the settlement, and they may, therefore, be supported; although these limitations fail. The direction to pay the allowances out of income of the settled properties, which appears in both agreements, shows an intention to create a charge, and this intention was not frustrated by the ineffectual attempt to beep alive the subsequent and invalid limitations of the settlements.
By these agreements the members of the family other then Sir Abdul Gani and his son Ashanullah surrendered their claims to property of considerable value and stated their suit in consideration of a firm contract securing to them annuities to an amount exceeding Rs. 1,30,000 and continuing such annuities to their heirs.
17. It is, however, contended on behalf of the appellants that although the language used by their Lordships is wide enough it was used with reference to the facts of the case. It is urged that in that case the plaintiffs did not seek for possession of the property but only to recover their allowances, the right to which was denied by Ashanullah. The plaintiff’s there were included among the co-sharers placed in Schedule D and the properties out of the income of which they had to get their allowances were comprised in the deed of 1868 and their right to such allowances was recognized in the heba-bill-ewaz of Sir Abdul Gani of 1895. When they claimed their allowances the right to which was denied, their Lordships had only to consider the question whether they were entitled to recover their allowances. The decision of their Lordships should not be extended so as to construe it to have laid down that the title to the properties passed to the grantee by these agreements. Reliance is placed in support of this argument to the observation of Lord Halsbury L.C., in Quinn v. Leathern [1901] A.C. 495 that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. Bearing this in mind, as also the observations of Jessel, M.R., in In re Hallett’s Estate [1879] 13 Ch. D. 696 that the only use of authorities or decided cases is the establishment of some principle which the Judge can follow out in deciding the case before him, can it be said that we can disregard the observation of the Judicial Committee above ited in deciding this case? The point rgued is with regard to the effect of the agreement of 1881. The effect of the deed was decided to be settlement of properties on the grantee reserving a charge for allowances for the grantors and their heirs on the properties in question. I think that this question ,as to the effect of the agreement having been determined by the Judicial Committee it is not open to further consideration by this Court. The construction of the documents did not depend upon the facts of the case. The effect of the document is a matter of construction and is a question of law and this question of law having been decided in a certain way by the highest tribunal is, as much binding on us as other decision in that case that the wakfs of 1846 and 1868 are invalid.
18. Further, even if the question were open to us I do not think that the language could be plainer then what was used in Clause 3 of the agreement, to extinguish the title to the properties of the persons who signed the document of August 26, 1881, subject to the reservation for allowances in Clause 6. If these persons executed the documents under any mistake or misapprehension they might possibly ask for its cancellation, but that step was never taken. There is no reason to suppose that the relinquishment of the title on certain considerations should be invalid because of “the ineffectual attempt to keep alive the subsequent and invalid limitations of the settlement.” In my opinion therefore the claim of the appellants for possession of the properties must fail. It was also urged that the defendant’s predecessors themselves acknowledged that the co-sharers had subsisting title to the properties and they acquired the interests of other co-sharers to the extent of 11 annas as we should also put the same construction on the documents. But it is not urged that there is any estoppel, and I think we should give effect to the true construction of the documents
19. In my judgment there is another ground on which the plaintiffs’ claim for possession should fail. I have pointed out that the validity of the wakf of 1846 was directly questioned by the mortgagors in the suit of 1880 and they withdrew their suit without any permission to bring a fresh suit. They are precluded from bringing a fresh suit in respect of the same subject matter under Order 23, Rule 1(3) of the Civil Procedure Code which is practically the same in this respect as Section 97 of Act 8 of 1859, the Code then in force. The plaintiffs as their assignees are under the same disability. The fact that the wakfs have been decided to be invalid by the Judicial Committee does not help the plaintiffs. The result of the decision is that the defendant will not be able to set up the validity of the wakf as against third persons and the property in his hands will be considered as his personal property and liable to attachment and sale in execution of decree against the defendant subject to the charges. But so far as the mortgagors are concerned and their assignees they are bound by the effect of the withdrawal of their suit of 1880, without permission to bring a fresh suit on the same matter.
20. On behalf of the respondent it was urged that the suits were barred by limitation. The Subordinate Judge decided that question against the defendant. If there had been no suit in 1.880 and the agreement of 1881 I should have held that the right of the mortgagors to the properties was not barred on the authority of Mohamad Ali v. Razia Bibi [1905] 27 All. 320 which affirmed this decision of the Allahabad High Court as the Subordinate Judge has held. But as I hold that the plaintiffs have no right to recovery of the possession, the question of limitation becomes immaterial.
21. The next question that is urged for the appellants is that if the plaintiff’s are not entitled to recover possession of the properties they are at any rate entitled to enforce the charge for the allowances payable to the mortgagors as they are purchasers of the right, title and interest of the mortgagors at the execution sale. The respondent meets the contention on the grounds : (1) that no charge was claimed in the plaint and no issue was raised on the question; (2) the allowances are not permanently fixed but liable to fluctuations and may even be discontinued under certain circumstances. With regard to the first objection it seems to me that because the plaintiff’s asked for too much we cannot refuse to grant them a decree for less if they are found to be entitled to it. The claim to enforce a charge on the property does not rest upon any new facts but upon consideration of what the plaintiff’s got by the purchase of the right, title and interest of the mortgagors. The mortgagors professed to mortgage their interest as owners of the property. It is found that they had merely a charge on the property for allowances and that they were not full owners. The charge is an interest in immovable property and transferable as such. The plaintiffs by their purchase stepped into the shoes of the mortgagors with regard to the property. They can therefore claim a right in the charge created on the properties in favour of their mortgagors if the greater claim is not allowed. The fact of their not placing this question before the Court below may be a matter of costs. With regard to the second objection I need only point out from the judgment of the Privy Council that the provisions contained in the agreements with regard to the distribution of the annuity and proportions to be determined by the punchayat it may be disregarded. Sea Khajeh Solehman v. Salimullah Bahadur A.I.R. 1922 P.C. 107.
22. It seems to mo that there is no valid answer to the claim of the plaintiffs to the annuities which are payable to their mortgagors and charged on the properties in question.
23. No other point was argued on behalf of the appellants before us. But the respondent urged that the suits were defective for want of parties. I do not think it is so. It was also urged on behalf of the respondent that the shares of the mortgagors were not as found by the Subordinate Judge, but nothing has been said which shows that that finding is erroneous. The respondent also relied on the case of Mahamed Musa v. Aghore Kumar [1914] 42 Cal. 801 and certain other cases. I do not see what application the case of Mum (8) has to this case. There is no formal defect in the agreement which was a registered instrument.
23. I am of opinion that the dismissal of the suits would defeat the justice of the case. I would therefore modify the decree of the Subordinate Judge thus : The plaintiffs’ claim for possession of the property is dismissed. It is declared that the plaintiffs are entitled to the allowances charged on 17 gundas 6 dantis 4 jobs and 344 renus share of the properties described in the plaint which were payable to Syad Karimulla, Khaje Abdul Rashid and Khaje Abdul Khalek alias Bachu Mia and their heirs and legal representatives and the legal representatives of Hala. Mia except the person named Hafez Bibi against whom the mortgage suit had abated under the agreements dated August 26, 1881 and September 17, 1881, the amount of such allowances being left undetermined in these suits.
24. As to costs I think the order of the Subordinate Judge should be left undisturbed, but in this Court as both the parties placed their case too high there should be no order as to costs to either party.
Panton, J.
25. I agree.
