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NizamudIn Gulam and ors. Vs. Abdul Gafur Valad MainudIn and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai
Decided On
Judge
Reported in(1888)ILR13Bom264
AppellantNizamudIn Gulam and ors.
RespondentAbdul Gafur Valad MainudIn and ors.
Excerpt:
.....viz, whether the settlement of the lands in question on the donor and his descendants is a valid wakf settlement when the deed doss not provide for any ultimate devolution of the lands to any charitable or religions object. 42 held the grant to be valid, an ultimate charitable object having been clearly and expressly designated in the deed of grant. 492 would favour the opinion that a settlement would be valid as wakf even in such a case, since on failure of heirs 'the rent or produce would revert to the poor, which must be supposed to be the appropriator's design, though he should fail to mention it' baillie's moohummudan law, p. 'wakf must have a final object which cannot fail; and this object, it seems must according to the better opinion, be expressly set forth; ' and again 'if the..........viz, whether the settlement of the lands in question on the donor and his descendants is a valid wakf settlement when the deed doss not provide for any ultimate devolution of the lands to any charitable or religions object. it is true that it does provide, that, if the produce of the two nafan of land expressly assigned for a religious object falls short, the holders of the land in suit are to mate up the deficiency out of the produce thereof; but we cannot hold this to be any appropriation of that land for that purpose, and it cannot, in our opinion, affect the decision of the general question as to the validity of the settlement irrespectively of any such direction. the first case to be noted on the subject is that of abdul ganne kasam v. hussen miya rahimtula 10 bom. h.c. r. 7 in.....
Judgment:

Parsons, J.

1. The plaintiffs sue as mutavallis, and also as next of kin, of the deceased Karimudin, to obtain possession of certain property which was purchased by the defendants in 1866 at a Court sale held in execution of a decree passed against Tahira one of the daughters of Karimudin. The grounds of the claim are that the property in question is wakf, and that Tahira had only a life interest therein. Two points, therefore, arise for consideration: first, whether the property is wakf, and, secondly whether the estate of Tahira therein was only a life estate. The facts are these. In 1838, Karimudin, who was the owner of the property, executed what he called a wakfnama. In it he says: 'My private properties, which are at this day under my management and in my enjoyment, I have made a wakf of on my wives and on my aulad and other persons.' He then names his two wives and the two daughters of each (whom apparently be means whenever he speaks of his aulad), and be describes the property which he purports to settle as wakf upon them. He then dedicates a certain other part of his property, consisting of two nafars, expressly in wakf, for such purposes as the preparing of his own tomb, the saying of prayers, the holding of a fair, the recitation of the Koran, &c; and ho direct that his aforesaid two wives and their aulad and aflad (i.e., his descendants generally) from generation to generation, shall deposit the produce of these two nafars with some honest man and make the necessary disbursements; that if this cannot be done they shall take their respective shares of the produce and make the disbursements; that should the produce of the two nafars prove insufficient for the purpose, his wives and their aulad and aflad shall contribute from the property settled in wakf on them; and that should the produce of the two nafars be more than is sufficient, they, should expend the excess in charitable purposes. He then lays down certain rules for the management and inheritance of the property he purports to settle in wakf on his wives and his aulad then living and on their descendants that may be born thereafter, viz., (1) that, if one of the aulad of either wife die, the share of that person shall go to the wife and the survivors of her aulad; that, after the death of a wife, her share shall go to her surviving aulad; that if a wife and her aulad cease to exist, their share shall go to the other wife and her aulad; that on the failure of aulad and aflad of both wives, the next of kin of the settlor shall receive the property, and he adds that in this manner it is provided that the management shall proceed 'from generation to generation'; (2) that neither of the said two wives nor any one of the aulad of the wives shall alienate either by sale or gift or mortgage either their shares of the abovementioned property or any field or bush or any part of the land. He then appoints himself the mutavalli of the property for his own life-time and he appoints Mahomad Abdulla and Mahomed Husein to be the mutavallies after his death until a male from amongst his aulad attains the age of discretion. In this way Karimudin assumed to make a settlement in wakf of his whole property. A part he did indeed settle in wakf,--that is to say, he assigned it directly and expressly for certain religious purposes. That part is not in dispute now. The other part, a portion of which is in suit, he assigned under the denomination of wakf to himself and to his descendants with the evident intention that it should remain in the possession of his family inalienable, at any rate until by failure of near descendants, it might fall into the hands of his next of kin, if indeed the provisions against alienation were not intended to apply to them also. The settlement, it is to be noted, has been already discussed by this Court in a case in which it was described as a document 'purporting to settle, with certain exceptions, moieties of the settlor's estate on his wives Amina and Ayesha, on the daughters of the former, Fatesaheb Bibi and Masa Bibi, and on the daughters of the latter, Tahira and Sara Bibi, and the descendants of these donees in each line, so long as it should subsist, with cross-remainders on the extinction of either line to the representatives of the other, and a final remainder on the extinction of both lines to the heirs of the settlor.' See Phate Saheb Bibi v. Damodar Fremiti. The effect of the settlement was not in issue' in that case, though West, J., observes: 'Whether a wakf could indeed be created for the purpose merely of conferring a perpetual and an inalienable estate on a particular family, without any ultimate express limitation to the use of the poor or some other inextinguishable class of beneficiaries appears to be a question of some nicety, as to one element at least of which the Mahomedan doctors have differed' This, however, is the point that we have now to determine, viz, whether the settlement of the lands in question on the donor and his descendants is a valid wakf settlement when the deed doss not provide for any ultimate devolution of the lands to any charitable or religions object. It is true that it does provide, that, if the produce of the two nafan of land expressly assigned for a religious object falls short, the holders of the land in suit are to mate up the deficiency out of the produce thereof; but we cannot hold this to be any appropriation of that land for that purpose, and it cannot, in our opinion, affect the decision of the general question as to the validity of the settlement irrespectively of any such direction. The first case to be noted on the subject is that of Abdul Ganne Kasam v. Hussen Miya Rahimtula 10 Bom. H.C. R. 7 in which it was held that it is not sufficient to use in the deed the mere term wakf, but that, in order to constitute a valid wakf there must be a dedication of the property solely to the worship of God or to religious or charitable purposes. To the same effect is the ruling in the case of Mahamed Hamidulla Khan v. Lotful Huq I.L.R. 6 Cal. 744. In Fatmabibi v. The Advocate General of Bombay I.L.R. 6 Bom. 42 it was held that the intermediate settlement of property of the founder's children and their descendants would not invalidate a settlement of that property as wakf if there was an ultimate dedication to a pious and unfailing purpose.; In the same volume at page 88 there is another case--Bay ad Mahomad All v. Sayad Gohar Ali--in which it was held that a settlement in which no religious purpose at all was expressed was no valid wakf settlement. In the case of Luchniput Singh v. Amir Alum I.L.R. 9 Cal. 176 a grant in wakf was held valid as being a complete endowment of property for religious and charitable purposes when coupled only with a direction that the manager should maintain the future male descendants of the donor. The latest case to which we have been referred is Amrutlal Kalidas v. Shaik Hussein I.L.R. 11 Bom. 492 in which Farran, J., following the decision in Fatmabibi v. The Advocate General of Bombay I.L.R. 6 Bom. 42 held the grant to be valid, an ultimate charitable object having been clearly and expressly designated in the deed of grant. In the present case, however, there is no such condition expressed. The settlement is solely for the benefit of those descendants of the donor who may succeed to the property and those who may take it as next of kin. It is true that the logical deductions from the arguments of Abu Yusuf, referred to in Amrutlal v. Shaik Hussein I.L.R. 11 Bom. 492 would favour the opinion that a settlement would be valid as wakf even in such a case, since on failure of heirs 'the rent or produce would revert to the poor, which must be supposed to be the appropriator's design, though he should fail to mention it' Baillie's Moohummudan Law, p. 553, as cited in Amrutlal Kalidas v. Shaik Hussein I.L.R. 11 Bom. 503 . We cannot, however, adopt such an opinion, which is opposed to the opinions both of Hanifa and Mahammad, and has been more than once dissented from in our Courts. In Fatmdbibi v. The Advocate General of Bombay I.L.R. 6 Bom. 51 West, J., said: 'Wakf must have a final object which cannot fail; and this object, it seems must according to the better opinion, be expressly set forth;' and again 'If the condition of an ultimate dedication to a pious and unfailing purpose be satisfied, a wakf is not made invalid by an intermediate settlement on the founder's children and their descendants. The benefits these successively take may constitute a perpetuity in the sense of the English law: but according to the Mahomedan law, that does not vitiate the settlement, provided the ultimate Charitable object be clearly designated' I.L.R. 6 Bom. 53 . And in Amrutlal Kalidas v. Shaik Hussein I.L.R. 11 Bom. 5014 Farran, J. said: 'If I were at liberty to draw my own deduction from the sayings of Hanifa and the two disciples, and to decide in the light of modern jurisprudence between the conflicting opinions of the latter, I should, without doubt, give the preference to the view of Mahomed, and refuse to press the arguments of Abu Yusuf to their legitimate conclusion.' Though thus expressing his own views, Mr. Justice Farran felt himself at liberty to follow the decision of Mr. Justice West in Fatmabibi v. The Advocate General of Bombay I.L.R. 6 Bom. 51 which goes far beyond the decisions in the cases summarized at page 499 of the report in Amrutlal's Case as to which Farran, J., said: 'The conclusion, which is properly deducible from the above cited cases, is, I think, that where the primary and general object of the endowment is for the furtherance of religious or Charitable purposes, or for the worship of God, such endowment is valid, although, the wakfnama may also provide for the support, of the family and descendants of the founder; but that, where the wakfnama has for its real object nothing connected with the worship of God or religious observances, and provides only in a very remote contingency for the poor, such remote provision does not validate a perpetuity for the benefit of the dedicator's children and their descendants so long as any such exist.' Having regard to the opinions expressed by West and Farran, JJ., in the cases of Fatmabibi and Amrutlal, we do not feel justified in extending the rulings in those cases to such a case as the present, where there if no express provision at all for the ultimate devolution of the property to any religious or charitable object. The grant in wakf cannot, therefore, be upheld.

2. It was next argued that, independently of the wakf, the settlement is valid as a grant by Karimudin of his estate to his wives and their daughters for their lives, and that, in that view of the case, Tabira would have had only a life estate in the property in suit, which on her death would have reverted to Karimudin's next of kin. It was not, however, shown to us how Karimudin could legally create such a life estate, or grant the property to his next-of-kin on the determination of the life estates. In his life-time he made no grant, for he kept the possession of the property with himself until his death, and on his death his estate would devolve on his heirs by Mahomedan law, and, as said in the case of Ranee Khujooroonissa v. Mussamut Romhan Jehan L.R. 3 IndAp 291 , 'the policy of the Mahomedan law appears to be to prevent a testator interfering by will with the course of the devolution of property according to law among his heirs.' The creation of any life estate at all appears quite inconsistent with the Mahomedan law. See Mussamut Humeeda v. Mussamut Budlun 17 Cal. W.R. Civ. Rul. 525 . It might be that by consent such an estate might be created; but, as a general rule, the donee in such a case would take an absolute estate. All our masters are agreed that when one has made a gift and stipulated for a condition that is fasid, or invalid, the gift is valid and the condition void.' (Baillie's Moohummudan Law, p. 537.) So in the Hedaya, III, p. 309, it is said: 'An amree, or life grant, is nothing but a gift and a condition; and the condition is invalid; but a gift is not rendered null by involving an invalid condition.' We may also quote the case of Chekkeenokutti v. Ahmed I.L.R. 10 Mad. 196 as an authority against the validity of this settlement under which the nest of kin claim that the property was given to them after the death of the wives and aulad and aflad of the donor. The settlement, therefore, must be rejected from the case altogether. It is not valid as a wakf, and it is not valid as a deed of gift to the next of kin. If valid at all, it would be so only as a gift to the donor's wives and daughters.

3. In any case, therefore, it is not shown that Tahira held a life interest only in the property which was sold as hers and purchased by the defendants. It follows that the plaintiff's suit to eject the defendants, on the ground that Tahira had only a life interest, must fail. The decrees, therefore, of the lower Courts are reversed, and the plaintiff's claim is rejected with costs throughout.


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