JUDGMENT N. N. Mithal, J. - This is a second appeal by some of the defendants against the concurrent findings recorded by the courts below. In order to appreciate the controversy raised in the appeal it would be relevant to have the necessary facts. 2. Mohd. Razi Khan and his wife Afroz Begum were the owners of some house and Zamindari property in respect of which they created two waqfs alal aulad and executed registered deeds on 9-8-1982 which are Exts. 4 and 5 on the record. They had one son Ejaz Ali whose first wife Nabuwat Begum had three daughters, two of whom are the appellants and the third one is a defendant respondent. Ezaj Ali married a second time and from his second wife Zaheeda he had one son lmtiaz Ahmad who is now defendant respondent in this appeal. According to the deeds of waqf the waqifs appointed themselves as the first mutwalli and after their lifetime Ejaz Ali was to become the next mutwalli and thereafter male lineal descendants were designated as mutwallis. It is not disputed that Ejaz Ali remained mutwalli until his death in 1956 and thereafter the plaintiff became the mutwalli. After the abolition of Zamindari certain disputes arose about the zamindari abolition bonds and a suit No. 26 of 1956 was filed by the plaintiff seeking declaration that he was mutwalli and, as such, entitled to receive the Z.A. bonds. The said suit was contested but was decreed which remained confirmed even up to the High Court. The present suit was later on filed by the mutwalli on the allegation that one Sarbat Bahadur was the tenant of the disputed property about which notice was given to him as also to the defendants requiring the tenant to vacate the house and calling upon the defendants to refrain from realising any rent from Sarbat Bahadur. It is also alleged that in pursuance of the notice Sarbat Bahadur later vacated the house but the same had been illegally occupied by the defendants, consequently the suit was filed for the recovery of possession etc. Apart from this, the plaintiff also claimed a decree in respect of certain amounts in respect of Z.A. compensation bonds that had been wrongly realised by the defendants from the Collectorate. 3.
Apart from this, the plaintiff also claimed a decree in respect of certain amounts in respect of Z.A. compensation bonds that had been wrongly realised by the defendants from the Collectorate. 3. The defendants contested and denied the plaintiffs right to sue and claimed that they were the beneficiaries under the waqfs created in 1922. They denied that Sarbat Bahadur was the tenant or that they had illegally realised any compensation bonds and contended that the claim for its recovery was barred by time. 4. On the material on record the courts below came to the conclusion that the plaintiff was the mutwalli of the waqf and was entitled to maintain the suit that Sarbat Bahadur was the tenant in the premises in dispute and that the defendants had unauthorisedly occupied the house that defendants were not beneficiaries and as such not entitled to retain possession that the defendants had realised the compensation amount and the suit was within time. The claim of the plaintiff was therefore, decreed. 5. Feeling aggrieved the defendants have filed the present appeal. Smt. Nabuwat Begum who was the defendant respondent No. 2 died during the pendency of the appeal and since her heirs were already on record her name was directed to be deleted. 6. The appellants have mainly contended that they were beneficiaries and on a true interpretation of the deed of waqf it would be found that they were entitled to maintenance and support from the income of the waqf. According to them the right to maintenance also included the right of residence and, therefore, the defendants were not liable to be evicted from the house. It is also contended that they had no liability in respect of the compensation amount the claim for which was barred by time also. 7. The first question for consideration in this appeal, therefore, is if the defendants were beneficiaries under the deeds of waqf. It may be mentioned here that both the waqf deeds were executed on the same day by Mohd. Razi Khan and his wife Smt. Afroz Begum and the language employed in both of them is almost identical. The waqf deeds Exts. 4 and 5 on the record disclose that waqf alalaulad under each of them had been created for the benefit of settlors descendants from the income and usufruct of the properties.
Razi Khan and his wife Smt. Afroz Begum and the language employed in both of them is almost identical. The waqf deeds Exts. 4 and 5 on the record disclose that waqf alalaulad under each of them had been created for the benefit of settlors descendants from the income and usufruct of the properties. The actual expression used therein is : "Aur uske (the property) manufa vo mohasil ko apne pisar Ejaz Ali Khan our unki aulad Us aulad ki aulad ke liye makhsoos karta hun." It is further provided that the income derived from the dedicated property would always be utilised for 'Parvarish and Tasarruf' i.e. maintenance and support of the beneficiaries till the time of descendants would last. The provision in the waqf deed is clearly for the benefit of Ejaz Ali his descendants and descendants of his descendants and this would be so until the line of descendants shall become extinct. Here we are concerned only with Ejaz Ali's children and there is no room for doubt that each one of them is a beneficiary. The term 'aulad' includes both male and female descendants and, admittedly. the appellants were the daughters of Ejaz Ali, being the step sisters of the plaintiff. In this view of the matter they are clearly beneficiaries within the meaning of the waqf. 8. In the judgment of the courts below there is nothing to suggest as to how the courts had come to the conclusion that the defendants were not beneficiaries under the terms of the waqf deed. 9. A faint effort was made before me to suggest that cl. 2 of the deed deprives them from being the beneficiaries. According to the said clause, if in the line of Ejaz Ali there was no male descendant and there were only female descendants then, in that event, the female descendants alone will get the income of the dedicated property subject to the limitation that the husbands of such female descendants will not benefit therefrom. It is urged that since Ejaz Ali had a male descendant i.e. the plaintiff, the female descendants would stand excluded. This interpretation is totally ill founded. A reading of the entire waqf deed and keeping in mind the beneficiaries intended under the waqf it would be obvious that what the settlor generally intended was to confer the benefits on both the male and female descendants.
This interpretation is totally ill founded. A reading of the entire waqf deed and keeping in mind the beneficiaries intended under the waqf it would be obvious that what the settlor generally intended was to confer the benefits on both the male and female descendants. While the initial clause of the waqf deed provided for the ratio in which the benefits were to be shared by male and female beneficiaries vis-a-vis the mutwalli, the second clause laid down the clause of beneficiaries when there was no male beneficiaries present. It was never intended to divest the female descendants of the benefits if a male descendant existed. The provision only tries to take care of the situation where there was no male descendant at all. In such an eventuality the female descendants were made beneficiaries but their husbands were debarred from such benefits. The true intention thus appears to be to exclude outsiders from being beneficiaries even though they may be related to any descendant by marriage. However, the right of the female descendants was never made contingent on the total absence of male heirs. Therefore, the appellants were certainly beneficiaries under the terms of the waqf deed and the view to the contrary is not correct. 10. This leads us to the next question i.e. as to the nature of appellants rights in the waqf property or income from the same. It is not disputed before me that the beneficiaries would be entitled to only such benefits as were specifically granted under the terms of the dedication. Any right which was not granted under the waqf cannot be claimed by them. As we have seen above the beneficiaries have only been given a right in the profit and usufruct of the dedicated property for their maintenance and support. It is urged that the words 'maintenance' or 'Parvarish' are terms of very wide import and would include the right to residence also. In Hindustani and English Dictionary 'Parvarish' has been defined as fostering, raring breeding, patronizing, nourishment, nutrition, maintenance, support, protection, education. In Manzoor Hasan v. Bibi Samshul Nahar, AIR 1949 Pat 526 it was held that the word 'Parvarish' meant maintenance and upkeep in general of any person. In AIR 1952 All 127 , Faqir Mohd.
In Hindustani and English Dictionary 'Parvarish' has been defined as fostering, raring breeding, patronizing, nourishment, nutrition, maintenance, support, protection, education. In Manzoor Hasan v. Bibi Samshul Nahar, AIR 1949 Pat 526 it was held that the word 'Parvarish' meant maintenance and upkeep in general of any person. In AIR 1952 All 127 , Faqir Mohd. v. Abda Khatoon a Division Bench of this court while interpreting the phrase 'maintenance and support' held that it meant the same thing as 'used' or 'benefit'. In this clause 'support' appears to amplify the meaning of the word 'maintenance'. In appropriate cases it may include not only those expenses which are essential for necessaries of life but also for all conveniences which would enable the beneficiaries to maintain himself according to his status in life. 11. When no provision has been made in the deed for the residence of the various descendants who are the beneficiaries there- under and only such expressions as 'Parvarish' and 'tasarruf have been used to ensure these to the beneficiaries from out of the income and profits of the dedicated property, their meaning or settlor's intention can properly be ascertained only by looking at the surrounding circumstances when the deed was executed. It will be pertinent to remember here that the waqf deed was executed in 1922 and at that time Ejaz Ali had only one wife. The second wife Ejaz Ali and the plaintiff were no-where in sight as would be apparent from a look at the age of the parties in the cause title of the suit. The defendants were all senior in age to the plaintiff by several years. The waqf deeds mentioned that Ejaz Ali had some issues in 1922 which means that at least one of the daughters had already been born. The dedicator could,therefore,be concerned only about that daughter who was likely to be married in due course and thus the question of providing for her residence may not have arisen in his mind at all and thus no provision for the residence of the beneficiaries was made. As of today the positions is that Ejaz Ali left behind three daughters, of whom only one has been married and the remaining two are still unmarried. When he married for the second time the plaintiff was born. The unmarried daughters now claims a provision for their residence in the dedicated property.
As of today the positions is that Ejaz Ali left behind three daughters, of whom only one has been married and the remaining two are still unmarried. When he married for the second time the plaintiff was born. The unmarried daughters now claims a provision for their residence in the dedicated property. However, Ejaz Ali had gifted the western portion of this very house to his first wife for their residence, whose daughters the appellants are. Thus there is already a provision for their residence which may or may not be sufficient in accordance with their wishes. Even though the word 'Parvarish' used in the waqf deed may be of very wide import yet in this case it cannot mean that the mutwalli was obliged to provide for the residence of all the beneficiaries. 'Parvarish' or 'maintenance' and support in the facts and circumstances of this case cannot mean provision for the residence of the beneficiaries under the waqf, particularly when there is no specific direction to this effect in the deed. 12. Apart from this, the mutwalli ordinarily cannot lease out waqf property for more than a year and agricultural land for more than three years. If the appellants' contention were to be accepted it would be in violation of these powers. which the court must always avoid to do. There are no compelling circumstances in the present case to transgress the ordinary rule of Muslim Law in this respect as the appellants do have some shelter over their head, howsoever scanty the same may be. 13. According to the plaintiff, the portion which was formerly in the possession of a tenant was occupied by the defendants when it was vacated by the tenant. The question arises whether the mutwalli has no right to dispossess the appellants and the appellants could resist their eviction as beneficiaries? 14. In this connection, let us now consider the general incidents of the waqf property and the rights and powers of the Mutwalli. Waqf is a permanent dedication by one professing Muslim faith of any property for a purpose recognised by Mohammadan Law as religious, pious and charitable. A waqf for the maintenance and support wholly or partially of Wagfs family or descendants is also valid provided the ultimate purpose is religious, pious and charitable as recognised by Muslim Law and property dedicated by settlor under a waqf deed.
A waqf for the maintenance and support wholly or partially of Wagfs family or descendants is also valid provided the ultimate purpose is religious, pious and charitable as recognised by Muslim Law and property dedicated by settlor under a waqf deed. including the case of Waqf Alalaulad, vests in God Almighty or in the waqf but not in the mutwalli or the beneficiaries. The position of the Mutwalli is only in the nature of Manager or Superintendent for carrying out the obligations with which he is charged under the terms of the waqf deed. The beneficiaries also have no interest in the waqf property except to the extent of benefits conferred on them by terms thereof. The Mutwallis right of management includes all such reasonable acts and functions which are necessary for the protection of the property. Even the Mutwalli is not entitled to occupy the waqf property without paying an amount equivalent to the profits which such property is capable of. Therefore, if the Mutwalli or any beneficiary occupies waqf property, it would be in violation of the terms of waqf deed, unless it specifically provides for such occupation failing which the person in possession would be liable to eviction. Even under the general power of superintendence, the Muslim texts lay down restriction on the right of Mutwalli whereunder he can grant lease of agricultural land for minimum period of three years and in respect of houses a lease not exceeding one year. 15. I have held above that the word 'Parvarish' in the present set and circumstances of the case does not include the right of being provided with residence where such right of residence has also not been specifically granted under the deed of waqf. Therefore, it is only under his general power of superintendence that such a right could have been claimed against the Mutwalli. However, in view of the limitation on the rights of Mutwalli to do so for more than a year and that too on payment of charges, the appellants cannot contend that they were not liable for eviction from the waqf property by reason only of being beneficiaries. Admittedly, the defendants had not entered into possession with the permission of the Mutwalli or under any lease granted by him and, therefore, their possession must be deemed to be unauthorised and the Mutwalli certainly had the right to seek their eviction. 16.
Admittedly, the defendants had not entered into possession with the permission of the Mutwalli or under any lease granted by him and, therefore, their possession must be deemed to be unauthorised and the Mutwalli certainly had the right to seek their eviction. 16. Coming now to appellants' claim in respect of the compensation bonds which is alleged to be barred by limitation. Appellants also assail the findings of the courts below that the defendants had realised the same. P .W.1 who is an employee of the Collectorate dealing with compensation bonds has merely stated that the money was paid to one Hidayat Hussain who was a relation of the defendants. The defendants have denied having received any such money. No power of attorney or any other letter of authority has been filed to show that Hidayat Hussain had been entrusted by the defendants to realise the aforesaid amounts. There is no evidence at all to show that the money had actually been realised by or on behalf of the defendants or that it ultimately reached their hands. The findings recorded by the courts below on this question are. therefore, not based on any evidence and cannot be sustained. 17. Apart from this, the money was admittedly realised from the Collectorate in 1960 and the suit was filed in 1968. The plaintiff has claimed that he came to know about the realisation of the bonds only in 1966 and therefore, the claim was within limitation from that time. It is urged for the appellant that three years limitation is prescribed by Article 24 of the Limitation Act which is to be reckoned from the date when the money was received by the defendant. It is not suggested that any other Article of the Limitation Act will be applicable. The said Article is as follows :- "24. For money payable by the defendant money is to the plaintiff for received by the defendant, for the plaintiffs use. 3 years when the money is received. 18. The relev ant date from which the period of limitation is to be counted is the date when the money was received by the defendant and the three years' period from such date starting from 1960 would expire in 1963. When the present suit was filed in 1968. clearly the period of limitation had expired long back.
18. The relev ant date from which the period of limitation is to be counted is the date when the money was received by the defendant and the three years' period from such date starting from 1960 would expire in 1963. When the present suit was filed in 1968. clearly the period of limitation had expired long back. It is submitted for the respondent that the plaintiff had no knowledge of the realisations made by the defendants and, therefore, it is the date of his knowledge which would be the relevant date for the start of the period of limitation. I cannot agree. There is no such provision in the Second Schedule of the Limitation Act. Exceptions to the starting of limitation can be taken only within the provisions of the Act. No provision, however. has been pointed out to me under which the plaintiff may be entitled to seek exemption of any period in this respect while computing the period of limitation. Part III of the Act deals with matters relating to computation of the period of limitation. It is only u/s.17 of the Act that the plaintiff could possibly claim exemption of certain period due to want of knowledge but that is possible only where the knowledge of the right or title on which the suit is founded had been concealed by the defendant by practising fraud. In the present case, there is no allegation in the plaint that any fraud was played upon the plaintiff so as to deprive him from gaining knowledge of payment of compensation bonds by the Collector. In the absence of any such allegation, the mere assertion that the plaintiff had no earlier notice of the payments cannot save him from the clutches of limitation. The suit of the plaintiff for the recovery of money was, therefore, clearly barred by time and the plaintiff cannot be allowed to take any benefit of the fact that he had no knowledge of such withdrawal before 1966 in the absence of any allegation of fraud as required under S. 17 of the Limitation Act. 19. In view of what I have said above, the appeal is liable to be dismissed in so far as the relief of possession over the waqf property in suit is concerned. However, the decree regarding compensation bonds has to be set aside and appeal allowed to that extent. 20.
19. In view of what I have said above, the appeal is liable to be dismissed in so far as the relief of possession over the waqf property in suit is concerned. However, the decree regarding compensation bonds has to be set aside and appeal allowed to that extent. 20. In the result, the appeal is partly allowed. While the decree for possession over the disputed property is maintained. The plaintiff's claim for money in the suit is dismissed. The parties shall pay and receive costs in proportion to their success and failure throughout.