1. This appeal is presented by the Legal Representatives of defendant 1 Amir Bi and four others against the decree dated January 8, 1964 made by the Additional Civil Judge Bangalore, in R. A. 348 of 1960 decreeing the suit which was dismissed by the trial curt.
2. The first respondent, which has been described as the Committee of Management of the Neelasandra Mosque by its President Shaik Abdul Jaleel brought O. S. 153 of 1757 on August 3, 1957 against the defendants claiming possession of the suit schedule property, and, present and future mesne profits.
3. The suit property described in the schedule to the plaint consists of items bearing Municipal Door Nos. 247 and 248 situate in Bazaar Street, Neelasandra, Civil Station, Bangalore, together with shops and other buildings now standing thereon. This property, according to the plaintiff, belonged to one Abdul Hussain alias Jani Saheb who executed a Wakfnama in favour of the mosque on April 23, 1948 conveying his right, title and interest in the suit property absolutely constituting himself as the Muthuvalli and continued to be in possession of the property enjoying the income thereof till his death, which occurred on May 12, 1951.
4. Amir Bi, defendant 1, since deceased was the wife of Abdulla Hussain and the other defendants are the tenants in occupation of the premises. Since the wakf was created for the benefit of the mosque and the said Abdulla Hussain was to enjoy the property during his life time and thereafter, as per the terms of the wakfnama the income from the suit property was to be utilised in full for the benefit of the plaintiff-mosque, the first defendant has no right to continue in possession of the suit property. The other defendants deny the plaintiff's title and therefore are in wrongful possession of the suit property. The plaintiff therefore, on 29th June 1956 issued a notice to the defendants calling upon them to surrender possession of the suit property and pay up the rents due. The defendants did not comply with the notice and therefore, the present suit has been filed on behalf of the mosque against them to recover possession of the suit property.
5. The defendants contested the plaintiff's claim to recover possession, Defendants 1 and 3 to 6 filed a joint written statement in which they inter alia contended that the plaintiff has no locus standi to institute the suit since the Muthuvalli of the Neelasandra Mosque alone has the power to institute the same. They also contested the validity of the wakf and stated that no wakf as such was created. It was also contended that Abdul Hussain had no intention to create a wakf since he did not divest himself of the ownership of the property comprised in the wakf. The first defendant it was stated, was in possession of the property as the owner and prior to that, her husband was in possession and that possession was never handed over to any representative of the mosque. On these grounds the defendants contended that the plaintiff's suit should be dismissed.
6. The trial court on these pleadings raised several issues but for the purpose of this appeal, the issues that are material are issues 1, 4 and 6. They are as follows:
'1. Did late Abdulla Hussain alias Jani Saheb create a valid wakf on 23-4-1948 in favour of the plaintiff Mosque?'.
2. Is the suit maintainable in the form in which it is brought?
3. Is the suit wakf illusory and fictitious and created only as a shield and hence unenforceable?'
7. On the first issue the trial court found that there is no valid wakf created. On issue No. 6 it held that it does not survive in view of the finding on issue No. 1 and issue No. 4 was answered in the affirmative. In the result, it dismissed the suit.
8. The plaintiff presented an appeal in the court of the Civil Judge, Bangalore, against the decree dismissing the suit. The learned Civil Judge disagreeing with the conclusion reached by the trial court allowed the appeal and decreed the plaintiff's suit. It is the correctness and legality of this decree that is being challenged in this appeal by the appellants.
9. Mr. Farukhi, learned counsel for the appellants has submitted four points in support of his appeal. They are:
1. The execution of the wakfnama is not proved and that a certified copy, the original not having been proved to have been lost or destroyed is not admissible in evidence;
2. That the wakf, even if it is created, is not valid in law;
3. That the wakf was not acted upon; and
4. The suit is not maintainable since the consent of the Advocate General was no obtained prior to the filing of the suit as required by Section 92 of the Code of Civil Procedure.
10. The first question is whether the execution of the document is proved.
11. It is stated in para 2 of the plaint that Abdulla Hussain has executed the document on 23-3-1940. The defendants in their written statement have merely denied the allegations made in para. 2 of the plaint. There is no specific denial of the execution of the document by Abdulla Hussain. The trial court has not raised any issue relating to the proof of the execution of the document. It is therefore clear that the execution of the document, not having been specifically disputed, no issue is raised and there is no decision by the Courts below. Therefore, it is not open to the learned counsel for the appellants to raise the question of proof of the execution of the document in this Court for the first time. Even otherwise, in my opinion, the evidence on record is sufficient to hold that the plaintiffs have proved the execution of the document.
12. Section 67 of the Indian Evidence Act provides that if a document is alleged to have been signed by any person, then the signature of that person to that document must be proved. In this case, P.W. 4, Shaik Hyder, who has identified the executant Abdulla Hussain before the Sub-Registrar, P.W. 2, a clerk in the Sub-Registrar's office has produced the thumb impression register which is marked Exhibit P-1 and states that the entry relating to the document dated 23-4-1948 is Exhibit P-1 (a). However, P.W. 4 when shown Exhibit P-1, pointed out Exhibit P-1 (b) as the signature of the executant Abdulla Hussein. This is obviously incorrect. It is not known whether this witness is a literate or illiterate. The signature in Exhibit P-1 is in Urdu and if this witness was a literate, surely, he could not have committed the mistake of pointing out the signature of Abdulla Hussein as Exhibit P-1 (b) instead of Exhibit P-1 (a). The Register shows that the document has been registered on 23-4-1948 and it bears the thumb impression of the executant who has also signed it in Urdu/ P.W. 5 is an attestor of the document. His evidence is that the executant signed the document before the Sub-Registrar and also in the lawyer's office where the document was executed. Further, the executant himself presented the document for registration and having admitted its execution, signed it in Hindustani. He has also put his left thumb mark on it. It also shows that he was identified by Shaik Hyder P.W. 4.
13. Section 58 of the Indian Registration Act requires that every document admitted to registration shall bear the endorsement of the particulars such as the signature of the person admitting execution of the document. Under Section 60(1) of the Act, the registering Officer has to endorse a certificate containing the word 'registered' thereon and under sub-section (2) of that section, such certificate shall be signed, sealed and dated by the registering officer and shall then be admissible for the purpose of proving that the document has been duly registered in the manner provided by the Act and that the facts mentioned in the endorsements referred to in Section 59 of the Act have occurred as stated therein. One of such facts falling within Section 59 is the signature of the executant of the document. Further, P. Ws. 4 and 5 have spoken about the signature of Abdulla Hussein. This evidence to my mind, is sufficient to hold that the document bears the signature of Abdulla Hussein and the same is proved. The lower appellate court has also, believing the evidence of P. Ws. 4 and 5 held that Abdulla Hussein has signed the document.
14. It is however contended by Mr. Farukhi that mere proof of the signature by itself is not sufficient to hold that the execution of the document is proved and in support of that proposition, he relied upon a decision of this court in Narayanappa v. Latchmakka (1958) 36 Mys LJ 479, wherein it has been observed that mere proof of signature of party to a document is not the same thing as proving the due execution of the document. That observation came to be made in respect of a document alleged to have been executed by an illiterate lady; the courts below in the case had come to the conclusion that she did not know the real character of the document when she signed it and it was in that context this court observed that mere proof of signature of the party is not the same thing as proving the due execution of the document. It is obvious that if a person signs a document not knowing the nature of that document, it is a good as his not having executed the document and therefore, the observation made in that context can have no relevance to the facts of the present case.
15. Next, Mr. Farukhi relied upon the decision in Balappa Tippanna v. Asangappa Mallappa, (1959) 37 Mys. LJ 920 = (AIR 1960 Mys. 234). In that decision, the effect of the proviso to Section 68 of the Indian Evidence Act was considered since the document was to be proved as required by that Section since it was required to be attested and the proof of such a document had to be given in accordance with the provisions of that Section. That decision again, has no relevance to the facts of this case.
16. Mr. Farukhi then relied on the decision in Narayanachar v. Venkatanathan, (1961) 39 Mys L J 794 in support of his submission that the certificate by the Registrar under Section 60(2) of the Indian Registration Act is not sufficient to hold that the document has been executed. It is true that this court has stated that the execution of the document cannot be held to be proved by the fact of the registration of the document itself. What Section 60(2) provides is that the registration certificate is proof that the document was duly registered and not that it was duly executed. It would however appear that the document was however appear that the document was presented for registration not by the executant himself but by a person who held the power of attorney from the executant and it was in that context that the observation was made. But the plaintiff in the instant case do no merely rely upon the certificate under Section 60(2) of the Registration Act. They have also examined two witnesses--P. Ws 4 and 5--to prove the signature of Abdulla Hussein.
Though it is true that Court is not, bound to treat the Registrar's endorsement as conclusive proof of the fact of its execution, yet, if the executant admits the execution and signs it before the Registrar and the Registrar affixes his signature endorsing the signature of the executant stating that the executant has admitted execution and certifies the document, then, such an endorsement and the certificate read with the evidence of P. Ws. 4 and 5 is sufficient to hold that the document is proved to have been signed and executed by the executant namely, Abdulla Hussein. Therefore, these decisions on which reliance has been placed by the learned counsel for the appellants do not help them in maintaining that the execution of the document is not proved.
17. The other part of the argument is that the plaintiff has produced the certified copy of the document and such a certified copy is not admissible in evidence unless it was shown that the original was either lost or destroyed. The evidence discloses and it is also found by the lower appellate Court that the executant Abdulla Hussein was in possession of the document till his death. It is in evidence as stated by his wife that her husband died in her house. She has further stated that she might be in possession of the document of Abdulla Hussein but that she is not sure of it.
18. Under Section 65(a) of the Indian Evidence Act, when the original is shown or appears to be in possession of the person against whom the document is sought to be proved, then, secondary evidence may be given of the existence and condition of the document. But Section 66 of the Act provides that secondary evidence of the contents of the document referred to in Section 65(a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession the document is, a notice to produce it; provided that such notice shall not be required in order to render secondary evidence admissible in a case when, from the nature of the case, the adverse party must know that he will be required to produce it.
19. In this case it is clear that the plaintiff-mosque claims possession of the property as a trustee whereas defendant 1 claims it as her own, and denied any knowledge of the execution of the wakfnama by her deceased husband. Therefore, in such circumstances it is obvious that the defendant must be held to know that she will be required to produce the document especially in view of her evidence that she might be in possession of the document of her husband, but, that she was not quite sure. Therefore it is clear that the present case falls under sub-clause (2) of Section 66 of the Evidence Act and therefore, no notice is required to be given as required under that Section. In my opinion, the appellate court was right in holding that the certified copy was admissible in evidence. The trial court's view that the document was not admissible in evidence as the existence or loss of the original was not proved is not correct. Therefore, I hold that the certified copy produced by the plaintiff is admissible in evidence.
20. Then, the next question which is of importance relates to the validity of wakf created by the deceased Abdulla Hussein. From the written statement of the defendants it could be gathered that the validity of the document was challenged on two grounds, firstly, that the executant did not intend to divest himself of the ownership of the wakf property and secondly, that he did not intend to create a wakf in respect thereof. The first issue raised by the trial Court is whether the deceased Abdulla Hussein created valid wakf on 23-2-1948 in favour of the plaintiff-mosque; it answered that issue in the negative stating that since the certified copy was not admissible in evidence and when once it goes out of evidence, then there is nothing on record to show that Abdulla Hussein created a wakf of the property in question in favour of that mosque.
The appellate court took a contrary view and held that the wakf was valid being in accordance with the tenets of Muhammadan law. Mr. Farukhi for the appellants has challenged the correctness of this finding stating that the deceased Abdulla Hussein was a Hanafi Mussalman and the validity of the wakf created by him must be considered in accordance with the rules that govern wakfs created by a Hanafi Mussalman. He contends that the wakf must not reserve any interest in the property in respect of which a wakf is created. He also contends that unless a delivery of such property is made, the wakf is not complete especially when the wakf is in favour of a mosque and since the wakif is in favour of a mosque and since the wakif has reserved the benefit to himself under the wakf and did not deliver possession of the property, the wakf must be held to be void. On the contrary, Mr. Sadiq for the plaintiff-respondent maintains that the wakf created by Abdulla Hussein is valid and in accordance with the principles of Muhammadan Law governing the wakfs created by a Hanafi Mussalman. Therefore, I have to see which of the two rival views is correct in accordance with the principles governing the wakf created by a Hanafi Mussalman. However, before I proceed to consider the said question, I would like to set out here the relevant portion of the wakfnama:
'.... Whereas the wakif being a Hanafi Muslim desires to create a wakf in respect of the schedule property in favour of the Musjid at Neelasandra Civil Station Bangalore subject to the condition that the income therefrom shall be utilised for the maintenance and support of the wakif during his lifetime and immediately after his death the income from the schedule property to be utilised in full for the benefit of the Musjid at Neelasandra Civil Station Bangalore whereas the wakif is the present Mutawalli of the Musjid at Neelasandra Civil Station Bangalore be in his capacity as such Mutawalli will be in a possession and control of the schedule property and shall fulfill the object of this wakf. As they wakif is possessed of other properties and as his heirs will get their specified shares in the said properties the wakif with the object of getting benefit after his death has created this wakf....'
21. 'The validity of wakfs' is founded on the rule laid down by the Prophet himself when Omer sought his counsel, to make the most pious use of his property. The Prophet declared,
'tie up the property and devote the usufruct to human being and it is not to be sold or made the subject of gift or inheritance; devote its produce to your children, your kindred, and the poor in the way of God.'
(Vide Chap. VII P. 192 Mohammedan Law by Ameer Ali, Vol. I.)
The learned author then states what wakf literally means and observed (P. 194).
'Technically or as the Arabian jurists put it, in the language of the law, it signifies the dedication or consecration of property, either in express terms or by implication, for any charitably or religious object, or to secure any benefit to human beings....a dedication to any good purpose.......... (Wujuh-ul-khair. Wa'l bin of the Hanafis) is a wakf. The terms Birr and Khair include all good and pious acts and objects. To make a provision for one's self is regarded by Hanafi Lawyers as an act of khair, for the Prophet declared a man giving subsistence to himself as giving charity, and settlements upon one's family are approved of and regarded as lawful by all the schools.'
This is also what is stated by Baillie in Digest of Moohummudan Law:
'When a man has made an appropriation of land or something else, with a condition that the whole or a part of it shall be for himself while he lives and after him for the poor, the appropriation is valid, according to Aboo Yoosuf.....' (P. 595)
22. Aboo Yoosuf and Mohammed, the two most distinguished disciples have expounded the law relating to wakfs created by a Hanafi Mussalman. Mohammed considers the appropriation or the use of the property during life illegal. He also considers delivery of possession of the property essential to the validity of an appropriation. On both these points, he is at variance with Aboo Yoosuf and it this difference of opinion among the disciples that has given rise to the question whether the wakf in question is a valid one and is in accordance with the principles of Muslim tenets.
'In order that a wakf should become operative or binding it is not necessary under the Hanafi Law that the property should be actually delivered by the wakif to a trustee. Delivery of seisin is not necessary in wakf as it is in hiba. The mere declaration of the wakif is sufficient to constitute the property wakf, and the wakif from that time forth is a mere trustee. He may be a trustee for himself, that is, he may reserve during his lifetime the income of the property for his own benefit; but whilst the law allows him, in case he makes a condition to that effect, to use the income of the property in whole or in p art during his lifetime, the property is nevertheless a trust-property in his hands. He can neither sell it, nor mortgage it, nor burden it, nor deteriorate it in any way and if he does so the beneficiaries and reversioners would be entitled to have the property taken out of his hands and consigned to a mutwalli, to realise the rents and profits and to make over the balance to the wakif after deducting expenses.
'Though, according to Mohammed, consignment of the dedicated property and separation of it from the other properties of the wakif are necessary to the completion of a wakf, according to Abu Yusuf, the wakf becomes absolute and binding, like emancipation, on the mere declaration of the wakif, and his right therein becomes extinguished at once...' (vide P. 237 Mohammedan Law by Ameer Ali Vol. I).
23. In the case of Deo Dem. Jan. Bibee v. Abdoollah Barber, 1838, Fulton's Rep. 345, decided by the Supreme Court of Calcutta, the question was which of two opinions is to prevail. The learned Judges referred the questions to the Moulavies for their opinion. The first question was whether, according to Mohammedan Law, an endowment of charitable uses is valid, when qualified by a reservation of rents and profits to the donor himself during his life and the second whether delivery of the property is essential to render an endowment valid, according to the rule which governs other gifts? the Moulavies answered the questions as follows:
(1) There is a difference of opinion between Abu Yusuf and Mohammed touching the wakf or consecration of lands with a reservation, and setting apart any portion of the profits and produce thereof for the support of the wakif or consecrator. Abu Yusuf considers the act legal, and Mohammed deems it illegal. The legal opinion of most of the learned uphold the opinion of Abu Yusuf, which is to be found in Chulpee or commentary of the Shurhkayah Vkayah.....
(2) Abu Yusuf does not consider the consignment and delivery of consecrated real property to the Mootuwullee as necessary to render the wakf of consecration legal. In this opinion Mohammed differs but the practice is in accordance with the opinion of Abu Yusuf, as written in the Mooneah......(P. 241)'
24. Thus the opinion of the Moulavies based on the authorities was that the opinion of Abu Yusuf was to prevail.
25. But Mr. Farukhi submits that even if it is held that for the completion of a wakf delivery is not necessary and it is open for the wakif to make a reservation for himself during his lifetime, yet if the wakf is for a mosque, then, he must deliver possession, and unless possession is delivered, the wakf is not complete. In support of this proposition, he relied on the observation by Tyabji in his book Mohammadan Law (Third Edn,) as follows:
'515. The wakif cannot validly reserve any benefit to himself under a dedication for a mosque. A wakf with any such reservation is void.' (P. 646).
He also relies on a similar observation appearing in Verma's Mohhamedan Law (4th Edn. 1968) to the effect--
220 (1) Except in the case of a wakf for a mosque the wakif may at the time of making the wakf reserve the following benefit for himself....
Thus relying on the above statements, Mr. Farukhi maintains that a wakf with reservation to mosque is void unless accompanied by delivery of possession.
26. The learned author Tyabji below Section 515 has stated:
'This is in accordance with all the schools of law. For Abu Yusuf's exposition of the Hanafi law alone permits the wakif of any kind whatsoever. But even according to Abu Yusuf, where a mosque is the object of the wakf the wakif cannot be a beneficiary.'
But in the foot-note the learned author states:
'It is not quite clear whether reservation alone is void, or entire dedication.'
Thus it would appear from the foot-note that the statement by Tyabji in Section 515 of his book stands considerably weakened.
27. Then, I have not been able to gather any information from Verma's Mohammedan Law as to why in the case of a wakf for a mosque the wakif cannot make any reservations for himself during his lifetime. The other two distinguished authors on Mohammedan Law, namely Sir Dinshah Mulla and Ameer Ali do not make any distinction between a wakf for a mosque and a wakf for any the religious or charitable or pious purpose.
28. But, Mr. Farukhi relied on the exception mentioned by Section 177 in Mohammedan Law by Mulla (Fifteenth Edn.) P. 156, which is--
'The wakf of a mushaa for a mosque or burial ground is not valid, whether the property is capable of division or not.'
One of the reasons stated is that 'the continuance of a participation in anything is repugnant to its becoming the exclusive right of God.'
29. But Ameer Ali in his book observes that--
'......The wakf of an undivided share of a property which is capable or partition, is valid according to Abu Yusuf. Mohhamed differs from him, and bases his difference on the difficulty of delivering possession of a property, which was not specifically divided off or apportioned from the rest. Abu Yusuf, however holds delivery of possession wholly unnecessary in the case of a wakf....... And the Fatwai Alamgir adda the moderns decide according to the opinion of Abu Yusuf, who held that the wakf was lawful, and this is approved...
According to the Siraj-ul-Wahaj the wakf of Mushaa is valid by consensus.
But where the property is incapable of partition, Mohammed agrees with Abu Yusuf and holds that the dedication of a share thereof is lawful,....
Both Abu Yusuf and Mohammed, however, agree in holding that where a piece of land is dedicated for erecting a mosque or building a tomb thereon, that piece of land ought to be divided off. The reason of this is apparent. But no division is necessary, according to Abu Yusuf, if the dedication is in favour of a mosque or for the maintenance of a Mausoleum...' (vide pages 268-269)
Thus the view of Ameer Ali is at variance with that of Tyabji. It would therefore be seen that Tyabji's statement weak as it stands lonely when compared with the views of the other distinguished authors.
30. From the discussion so far made it would seem that the consensus of opinions among the Muslim Jurists seem to be favour of accepting the opinion of Abu Yusuf in preference to that of Mohammed.
31. Mr. Farukhi however, sought to rely upon the decision in Mohd. Shafi v. Mohd. Abdul Aziz : AIR1927All255 where, two learned Judges differed on a question as to whether the authority of Mohammed should be preferred to that of Abu Yusuf. Pullan, J. took the view that the deed of wakf was not valid since the wakf was in favour of the mosque in which the wakif had reserved to himself a benefit, whereas Ashworth J. differed from him and relies Ameer Ali's exposition of the law that Mohammed's view is not recognised among the Hanafis of India'. It is also to be noted that Justice Ashworth did not agree with Tyabji's statement in Section 515 stated earlier in view of Ameer Ali's exposition of the law. Though Mr. Justice Pullan accepted the view of Mohammed in preference to that of Abu Yusuf, with respect, to my mind, his view is not in accordance with the consensus of Muslim Jurists, as I gather from the discussion in the books on Mohammedan Law by Mulla, Ameer Ali, Saxena and others. The consensus of opinion among Muslim jurists as stated earlier, seems to prefer the view of Abu Yusuf to that of Mohammed. Therefore, the contention of Mr. Farukhi based essentially on the opinion of Mohammed, has to be rejected.
32. Here, I should like to refer to a decision of the Full Bench of the Allahabad High Court in Mohd. Yasin v. Rahmat Ilahi AIR 1947 All 201 where it was held that according to the Hanafi School of Mohammedan Law, it is not necessary for the completion of the wakf that the person appointed Mutwalli should be given possession of the dedicated properties. It is worthy to note that in that case wakf was also in favour of a mosque and the Full Bench accepted the view of Abu Yusuf in preference to that of Mohammed.
33. However, in view of this difference of opinion in relation to the wakf created by a Hanafi Mussalman, the Legislature enacted (Act No. VI in the year 1913) the Mussalman wakf Validating Act and Section 3 of that Act states--
3. It shall be unlawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of Mussalman Law for the following among other purposes:
(b) where the person creating a wakf is a hanafi Mussalman also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated: Provided that the ultimate benefit in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman Law as a religious, pious or charitable purpose of a permanent character.
Section 4 of this Act provides--
No such wakf shall be deemed to be invalid merely because the benefit reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating wakf.
34. Thus it would appear that the controversy which related to the creation of a wakf by a Hanafi Mussalman wherein he reserves the benefit of the wakf for his life has been laid to rest by the Legislature stating that it is lawful for a Hanafi Mussalman while creating a wakf to make a reservation for his own maintenance during his lifetime. The Legislature does not seem to make any difference between a wakf for a mosque or a wakf for any other religious, charitable or pious purposes.
35. 'Wakf' is defined in Section 3(1) of the Wakf Act, 1954 to mean, the permanent dedication by a person professing Islam of any moveable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable. The view that the Mussalman Wakf Validating Act has laid at rest the controversy finds support from Saxena's Muslim Law (Third Edn.) wherein it is stated--
'It is the Hanafi exposition of Abu Yusuf alone that permits the wakif to take any benefit under the wakf, but no other school has allowed this benefit. The Wakf Act has now recognised this rule of Abu Yusuf...' (P. 462)
his is also what has been stated in Wilson's Anglo Muhammadan Law (Sixth Edn.) by Yusuf Ali, in which the learned author refers to the 1913 Mussalman Wakf validating Act and states that it is lawful for a Hanafi Mussalman to create a wakf for any religious or charitable purpose with a reservation for himself during his lifetime. (P. 362).
36. Mr. Farukhi states that even according to the 1913 Act, the wakf created must in all other respects be in accordance with the provisions of Muslim law and the Muslim Law according to him is that in case of a wakf for a mosque, the wakif cannot make a reservation for himself during his lifetime. But this submission is not borne out by any of the provisions of the 1913 Act, where the term 'wakf' is defined and that definition makes no distinction between a wakf created for a mosque or the one created for any other religious, charitable or pious purposes.
Therefore, in my view, after a careful consideration of the views expressed by various learned authors on Muhammedan Law and the authorities cited, and after considering the relevant provisions of the Mussalman Wakf Validating Act of 1913, a wakf created by a Hanafi Mussalman even in favour of a mosque making reservation for himself during his lifetime without delivering possession, is perfectly valid wakf and is in accordance with the tenets of the Muhammadan Law relating to a wakf created by a Hanafi Mussalman. Therefore the contention of Mr. Farukhi for the Appellants has to be rejected. I therefore, hold that the wakf created by Abdulla Hussein in favour of the plaintiff-mosque making reservation for himself during his lifetime and without delivery of possession is a valid wakf.
37. The third submission made by Mr. Farukhi, is that the wakf is not acted upon and therefore, the deceased Abdulla Hussein did not intend to create a wakf in favour of the plaintiff-mosque. The wakf was created in the year 1948. The wakif died in the year 1951. The lower Court has found that during that period he must have paid the necessary assessment for the properties to the authorities concerned. It is also apparent from the contents of the deed that the wakif divested himself of the ownership of the property and become a mutwalli till his death and P.W. 3 was to act as mutwalli thereafter. Therefore, one thing is certain that there has been a dedication or consecration of the property to the mosque. The dedication or consecration is complete and he was only acting as mutwalli during his lifetime. What happened after 1951 is that his wife, defendant 1, remained in possession of the property with other defendants who are staying there as tenants. It was therefore in the year 1956, that the plaintiff-mosque after giving notice, filed the suit claiming possession.
38. It is true, as contended by Mr. Farukhi, that there is a register maintained by relating to the properties held by the mosque and that there is no entry in that register of this property. Therefore it is suggested that the executant never intended to create a wakf of that property. I am unable to accept this contention. Abdulla Hussein has clearly expressed his intention to create a wakf in the deed itself and constituted himself as the first mutwalli and died as such. P.W. 3 was to be the next mutwalli. There are some other acts of omission on which reliance has been placed by Mr. Farukhi to state that they are inconsistent with the creation of a wakf. But such acts of omission may amount to a breach of the trust but would not make the dedication or consecration invalid. This is what has been observed in Beli Ram 7 Bros. v. Mohd. Afzal, AIR 1848 PC 168:
'... Once, there is an effective dedication in wakf it cannot be revoked, and breaches of trust on the part of a trustee however, numerous, and extending over however long a period, cannot put an end to the trust.'
Therefore, there is no substance in the contention that Abdulla Hussein did not intend to create the wakf and that it was not acted upon, since there has been a complete dedication or consecration of the wakf property to the mosque. Such acts do not make the wakf invalid.
39. Finally, it was contended by Mr. Farukhi that the suit filed by the plaintiff is not maintainable in law since according to the learned counsel, the plaintiff has not, as admitted by P.W. 1 taken any permission of the Advocate-General as required by Section 92 of the Code of Civil Procedure. It is to be observed that it was contended in the trial court that the suit is not maintainable because the suit filed on behalf of the mosque was not by the mutwalli. But having lost in the trial court on that point, he is now making this submission in this court relying on a statement appearing in the evidence of P.W. 1 that he did not take the permission of the Advocate-General under Section 92 C.P.C. There is no substance in this contention because Section 92 C.P.C. has no application to the facts of this case and as point out by the Privy Council in O. Rm. Sp. Firm v. Nagappa , to a suit by a trustee against a stranger to recover trust property. Section 92 C.P.C. does not apply and the consent of the Advocate-General under Section 92 is not necessary in order that a trustee may recover property in the hands of a stranger to the trust.
In the instant case, the property is dedicated to the mosque and therefore, the plaintiff-mosque has a right to claim possession thereof. But it did not secure possession because defendant 1 and others were in occupation of the property after the death of Abdulla Hussein and therefore, it had to file the suit for recovery of possession after serving notices on them as trespassers. Defendant 1 or any other defendants have no right to occupy the property because the property is a wakf property and they in relation to such property are strangers. Therefore, if a suit is filed on behalf of the plaintiff-mosque to recover possession of wakf property from strangers, Section 92 C.P.C. can have no application. Hence, this contention of Mr. Farukhi has also to be rejected.
40. In the result, all the contentions urged by Mr. Farukhi for the appellants fail. Consequently, I confirm the decree made by the Court below and dismiss this appeal. No order as to costs.
41. Appeal dismissed.