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Abdul Rauf Vs. Shamshulhaq and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Property
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2050 of 1954
Judge
Reported inAIR1969All35
ActsMussalman Wakf Validating Act, 1913 - Sections 1, 3, 4 and 5; Mussalman Wakf Validating Act, 1930 - Sections 2; Muhammadan Law
AppellantAbdul Rauf
RespondentShamshulhaq and ors.
Advocates:S.J. Hyder, Adv.
DispositionAppeal dismissed
Excerpt:
trust and societies - wakf - sections 1, 3, 4 and 5 of mussalman wakf validating act, 1913 and section 2 of mussalman act, 1930 - 1913 act provides statutory criterion for judging validity of wakf - retrospective effect given by 1930 act - wakf to be construed in accordance with provisions of 1930 act. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the..........provisions of the deed are as follows. sheikh karamat himself would remain in possession of the wakf property in the capacity of a mutwalli during his lifetime and utilize its income for his own needs ana for those of his wife and other relations. thereafter, his wife fahima bibi would remain in possession of the property as a mutwalli for her life and spend its income on herself and on the poor, without being accountable to anybody. upon the death of fahima bibi the mut-walliship would devolve upon shamsul haq, abdul rauf and abdul maruf, the respondents in this appeal, who would spend a sum of rs. 4 per month out of the income of the wakf property over a madarsa named in the deed and would appropriate the rest of the income to their own use. after the death of the respondents their.....
Judgment:

Gangeshwar Prasad, J.

1. The main question involved in this appeal relates to the validity of a deed of wakf executed by one Sheikh Karamat on 8-2-1932. The material provisions of the deed are as follows. Sheikh Karamat himself would remain in possession of the wakf property in the capacity of a Mutwalli during his lifetime and utilize its income for his own needs ana for those of his wife and other relations. Thereafter, his wife Fahima Bibi would remain in possession of the property as a Mutwalli for her life and spend its income on herself and on the poor, without being accountable to anybody. Upon the death of Fahima Bibi the Mut-walliship would devolve upon Shamsul Haq, Abdul Rauf and Abdul Maruf, the respondents in this appeal, who would spend a sum of Rs. 4 per month out of the income of the wakf property over a Madarsa named in the deed and would appropriate the rest of the income to their own use. After the death of the respondents their descendants, generation after generation would be the Mutwallis of the wakf and managers of the wakf property subject to the terms of the wakf deed. On the extinction of the line of the respondents the entire income of the wakf property would be devoted to the upkeep of the Madarsa by a pious and a competent person selected by the Muslim residents of the villages mentioned in the deed, and if at any time the Madarsa designated in the deed ceases to exist the income would be spent over some other Madarsa.

2. In 1933 Sheikh Karamat instituted a suit for cancellation of the deed of wakf against the respondents but the suit was withdrawn by him with permission to file a fresh suit. Then, in 1934 he executed a deed of revocation annulling the wakf deed of 1932, and contemporaneously with it he appears to have executed another deed of wakf providing that after his death and the death of his wife Fahima Bibi, the Mutwalliship would go to Sheikh Mansab, the brother of Fahima Bibi. Again, in 1938 Sheikh Karamat executed a third deed of wakf annulling the second deed as well and providing that after him and his wife Fahima Bibi the Mutwalliship of the wakf would go to the appellant, who is the grandson of his brother Sheikh Amanat, and would then continue devolving upon the appellant's descendants generation after generation. Under this deed of 1938 a sum of Rs. 10 per annum out of the income of the wakf property is to be spent by all the Mutwallis towards the upkeep of the Madarsa mentioned therein and on the extinction of the line of the appellant the entire income of the wakf property has to be devoted to charity.

3. It appears that on the basis of the wakf deed of 1932 mutation in the revenue records in respect of the zamindari property comprised in the deed was effected in the name of Sheikh Karamat and after his death in 1940 in the name of Fahima Bibi as Mutwalli of the property. Upon the death of Fahima Bibi, which took place in 1946, a dispute regarding the Mutwalliship arose between the appellant and the respondents. Mutation in the revenue records was ordered to be made in favour of the respondents, and the suit which has given rise to this appeal was then instituted by the appellant for a permanent injunction restraining the respondents from interfering with his possession of the wakf property and for other alternative and incidental reliefs.

4. The appellant, who claims under the wakf deed of 1938, alleged that the execution of the earlier wakf deeds of 1932 and 1934 by Sheikh Karamat was brought about by means of fraud and those deeds did not represent the real intention of Sheikh Karamat. It was contended by him that Sheikh Mansab and the respondents did not belong to the family of Sheikh Karamat and as such no wakf could in law be created for their maintenance and support. The result, according to his contention, was that the deed of 1938 was the only valid and operative deed of wakf and it was the appellant who was the legal and the real Mutwalli of the wakf property. The respondents denied that the wakf deed of 1932 had been obtained by fraud and asserted that it truly represented the intention of Sheikh Karamat and had also been given effect to.

They further asserted that they were relations of Sheikh Karamat, that the wakf deed of 1932 was perfectly legal and valid, and that they were in possession as Mutwallis under it since after the death of Fahima Bibi. In the alternative, their case was that if the respondents were not held to be Mutwallis under the law, the wakf created by the deed of 1932 will be deemed to have been appropriated after the death of Fahima Bibi, to the charity mentioned in the deed as the ultimate beneficiary and the appellant could even then have no interest whatsoever in the wakf property. It was further pleaded by the respondents that as the suit filed by Sheikh Karamat, for cancellation of the wakf deed of 1932 had been allowed to be withdrawn with permission to file a fresh suit subject to the condition of previous payment of the costs of that suit and the costs had not been paid, the present suit was not maintainable. The plea of limitation under Article 91 of the Limitation Act was also taken.

5. The courts below have found that the wakf deed of 1932 was not secured by fraud and they have held it to be genuine and valid and to be a deed which was fully acted upon. On the question whether the respondents can be said to have belonged to the family of Sheikh Karamat the trial court has recorded a finding against the respondents. This finding does not appear to have been challenged before the lower appellate court and the judgment of the lower appellate court proceeds on the basis that the respondents did not belong to the family of Sheikh Karamat. Both the Courts below have, however, held that although the dispositions in favour of the respondents and their descendants in the wakf deed of 1932 were invalid, they did not invalidate the deed in entirety and only resulted in bringing into operation, immediately after the death of Fahima Bibi, those provisions which were to take effect after the death of the respondents and the extinction of their line. It has accordingly been held by them that the wakf deeds of 1934 and 1938 were, altogether void and ineffective, and the plaintiff has no interest in the wakf property. The plea that the present suit was not maintainable because of the failure to pay the costs of the suit withdrawn by Sheikh Karamat has also found favour with both the courts below. As to the plea of limitation, the trial court has given no finding, but the lower appellate court has held that the suit is barred by Article 91 of the Limitation Act.

6. The findings of fact recorded by the courts below have not been challenged before me as, indeed, they could not be. It has also not been disputed that if the wakf deed of 1932 was valid and took effect as such the deeds of 1934 and 1938 were void and ineffective, and the appellant has in that case no interest in the property in suit. Mr. S. J. Hyder, learned counsel for the appellant, has only assailed the validity of the wakf deed of 1932 and urged that the provisions in the aforesaid deed in favour of the respondents and their descendants were repugnant to the creation of a lawful wakf and since those provisions were integral and, from the point of view of duration as also of the quantum of benefit, the most substantial part of the purpose for which Sheikh Karamat purported to create a wakf under that deed, they vitiated the wakf at its source and the deed was invalid from its inception. The question for decision, therefore, is whether the wakf created by the deed of 1932 was invalid ab initio on account of the provisions in favour of the respondents and their descendants or whether a valid wakf came into existence in spite of the said provisions and it took effect as if there were no intermediate beneficiaries at all between Fahima Bibi and the charity designated, in the deed as the ultimate beneficiary.

7. Having regard to the nature of the wakf created by means of the deed of 1932, it is unquestionable that its validity has to be determined with reference to the Mussalman Wakf Validating Act of 1913. But, for a proper appreciation of the effect of the said Act on the provisions of the wakf deed in question it is necessary to bear in mind its historical background. In Mahomed Ahsan Ulla Chowdhry v. Amarchand Kundu, (1890) ILR 17 Cal 493 (PC) where the Privy Council had before it a wakf-alal-aulad with an ultimate gift over to charity after the extinction of the line of the settlor, the test applied by the Privy, Council to the validity of the wakf was whether the wakf property had in substance been given to charitable uses, and it was held that the wakf in question was not a dedication but only a veil to cover arrangements for the aggrandisement of the family and to make the property inalienable.

The Privy Council observed however, that it was not called upon by the facts of that case to decide whether a gift of property to charitable use which is only to take effect after the failure of all the grantor's descendants is an illusory gift. In Bikani Mia v. Shuk Lal Poddar, (1893) ILR 20 Cal 116 (FB), following the Privy Council decision in (1890) ILR 17 Cal 498 (PC), it was held by a Full Bench of the Calcutta High Court, with Ameer Ali, J. dissenting, that substantial dedication to religious and charitable purposes was necessary for the validity of a wakf. The view expressed by Ameer Ali, J. in his dissentient judgment was that there was a consensus of opinion among the Maho-medan lawyers of every school and sect that wakfs for children, kindred or neighbours in perpetuity are valid, and to hold that a wakf, the benefaction of which i.s bestowed wholly or in part on the wakif's family and descendants, is invalid, would have the effect of abrogating an important branch of the Mahomedan Law. Referring to the Privy Council decision in Mahomed Ahsan Ulla Chowdhary's case, (1890) ILR 17 Cal 498 (PC), Ameer Ali, J. observed that their Lordships had clearly abstained from laying down any general rule and there was nothing in their remarks to justify an inference that their Lordships intended to repeal the Mahomedan Law.'

Then came the Privy Council decision in Abdul Fata Mahomed Ishaq v. Rasa-maya Dhur, (1895) ILR 22 Cal 619 where not only the test of substantial dedication to charitable uses laid down in (1890) ILR 17 Cal 498 (PC) was reaffirmed but it was laid down that a wakf to charity may be illusory whether from its small amount or its uncertainty and remoteness. The opinion oi Ameer Ali, J. in his dissentient judgment in Bikani Mia's case, (1893) ILR 20 Cal 116 (FB) which was in,accordance with the view expressed by him in his. Tagore Law Lectures on Mahomedan Law was not accepted by the Privy Council as in consonance with Mahomedan Law as known and administered in India, and a wakfnama which settled a property in perpetuity on the family of the settlors with an ultimate gift for the benefit of the poor to take effect upon the failure of the descendants of the family was held as not establishing a wakf according to Mahomedan Law. This decision caused great dissatisfaction among the Muslims of India, and the Mussalman Wakf Validating Act of 1913 was in consequence enacted with the object, in the language of the preamble to the Act, of removing doubts which had arisen regarding the validity of wakfs created by persons professing the Mussalman faith in favour of themselves, their families, children and descendants and ultimately for the benefit of the poor or for other religious, pious, or charitable purposes.

This was the historical background of the Mussalman Wakf Validating Act of 1913 and it was summed up by the Privy Council in Beli Ram and Brothers v. Chaudri Mohammad Afzal in the following words :

'Before the passing of the Mussalman Wakf Validating Act (VI of 1913) it had been established by decisions of this Board that a wakf was invalid if the gift to charity contained therein was Illusory, whether because of the smallness of trie proportion of the property allotted to charity, or because the gift to charity was postponed for such a length of time as to make the prospect of charity ever taking problematical. The law on this point was altered by the said Act . . .'

8. Mr. S. J. Hyder has contended that the Mussalman Wakf Validating Act of 1913 did not have the effect of giving legislative recognition to the pure Muslim Law as it was expounded by Ameer Ali, J. in his dissentient judgment in Bikani Mia's case, (1893) ILR 20 Cal 116 (FB) or in his Tagore Law Lectures, and he has relied on an observation of Ram Lal, J. to that effect in Mohammad Afzal v. Din Mohammad, AIR 1947 Lah 117. The contention appears, to be well founded, but I think it is not of much practical importance, and at any rate it does not help Mr. S. J. Hyder in his attack on the validity of the wakf deed in question. The Mussalman Wakf Validating Act provider a statutory criterion for judging the validity of wakfs of the nature mentioned therein, and since it has been given a retrospective effect by the Mussalman Wakf Validating Act XXXII of 1930, the validity of all such wakfs whether created before or after its commencement has to be judged now by that statutory criterion, subject of course to the saving provision contained in Section 5 of the Act and the proviso to Section 2 of Act XXXII of 1930. The real question, therefore, is not whether the Mussalman Wakf Validating Act of 1913 has brought the law into accord with what the pure Muslim Law, according to the exposition of Ameer All, J. in Bikani Mia's case, (1893) ILR 20 Cal 116 (FB) or in his Tagore Law Lectures, was, but what is the essence of the change effected by the Act in the law as laid down in the Privy Council decisions preceding it.

9. The essence of the change brought about by the Mussalman Wakf Validating Act of 1913 is that the requisite condition for the validity of a wakf-alal-aulad is that its ultimate benefit should be reserved for the poor or for any other religious, pious, or charitable object of a permanent nature, and not that its benefit should be substantially for any such object. The benefaction may be so negligible or so remote in point of time that the purpose of the wakf may not appear to be substantially devoting the income of the dedicated property to any of the aforesaid objects; but that would not impair the validity of the wakf, if any such object is to be the ultimate recipient of the benefaction. The reservation of ultimate benefit for any such object imparts to a disposition of property the character of a wakf under the Act and exercises a validating influence upon the disposition, in spite of the remoteness of the benefit or its problematical nature.

10. What happens, then, if an intermediate beneficiary for whom provision has been made under a wakf governed by the Mussalman Wakf Validating Act of 1913 is found to be outside the class of persons for whose maintenance and support a wakf may be made under the Act? Does the disposition in favour of such a person strike at the root of the wakf and render it invalid at its inception and incapable of taking effect, or does the ultimate object of the wakf sustain it notwithstanding that defect and the result is that the invalid disposition is cut out and the achievement of the final purpose of the wakf is accelerated? Mr. S. J. Hyder has contended that the deed is totally deprived of validity in these circumstances, and he has urged that acceleration can be effected only by the doctrine of cy pres, and that doctrine has no application to a gift which lacks a general charitable intent as, according to him, the wakf in question does. The argument ignores that essential characteristic of wakfs governed by the Mussalman Wakf Validating Act of 1913 which I have emphasized above and it is untenable both on principle and on authority.

11. Firstly, it is not correct to say that when some of the dispositions made in a wakf are found to be invalid the court can uphold and give effect to the remaining dispositions only by invoking the doctrine of cy pres. The efficacy of a settlement of property cannot be destroyed in entirety on account of the existence therein of some provisions which are not sanctioned by law, and there is no reason why the valid provisions thereof should not take effect when they are clearly severable from and independent of the invalid provisions and particularly when they do not come into play simultaneously with the invalid provisions according to the terms of the deed. In the Mussalman Wakf Validating Act too, there is nothing to suggest that if an intermediate beneficiary under a wakf governed by the Act falls outside the class of persons for whose maintenance and support provision may be made under the wakf, the entire wakf will fail and even the ultimate object of the bounty of the wakif will be deprived of the benefit intended to be conferred upon it. But even if it is assumed that it is only by applying the doctrine of cy pres that, upon the failure of intervening dispositions, the Court can allow the benefit of the wakf to be appropriated by the ultimate beneficiary, there can be no doubt about the application of the doctrine.

12. The contention of Mr. S. J. Hyder is that an ultimate charitable intent must be distinguished from a general charitable intent, and that the doctrine of cy pres can have no application to a wakf which has charity as its ultimate object only. This contention unduly limits the scope of the doctrine of cy pres and takes a too narrow view of what is meant by a general charitable intent. The doctrine of cy pres is a doctrine of Equity and its course has not been confined to any rigidly fixed groove but has covered diverse situations. There have been variations in the application of the doctrine and courts have employed it liberally for preventing the failure of charities. A general charitable intent as an essential condition for the application of the doctrine has, therefore, to be construed in a broad sense having regard to the context in which the question of its application arises. Under the Mussalman Wakf Validating Act the ultimate intent controls the entire disposition and itself imparts to it the character of a valid wakf. The ultimate charitable intent in a wakf governed by the Act should consequently be regarded as fulfilling the requisite condition for attracting the cy pres doctrine. In fact, the ultimate charitable intent also constitutes a general and an overriding intent in a wakf of this kind. A bad link in the chain of dispositions contained in a wakf-alal-aulad will not, therefore, destroy the wakf and frustrate the ultimate wish of the wakif, and the invalidity of some provision therein will only have the effect of eliminating that particular provision from the scheme of the wakf and accelerating the accomplishment of its ultimate object.

13. I may now refer to the authorities. In Fatma Bibi v. Advocate General of Bombay, (1881-82) ILR 6 Bom 42 it was observed by West, J. that if the intermediate purpose of a dedication fails the rule of Mahomedan Law appears to be that the final trust for charity does not fail with it but is accelerated being itself regarded as the principal object in virtue of which effect is given to the accompanying and intervening dispositions. In Ramzan v. Mst. Rahmani, AIR 1932 Oudh 71 where a wakf provided for enjoyment of the estate, which was the subject of a wakf, by a person who was not a member of the settlor's family and could not, therefore, to that extent be given effect to, it was held by a Division Bench that the whole deed did not on that account become invalid at its inception. The question received a very exhaustive treatment, if I may say so with respect, at the hands of Ram Lal, J. in the Division Bench case of AIR 1947 Lah 117 where after quoting the Oudh case mentioned above, the learned Judge observed that the case was a direct authority for the proposition that if the giving of a benefit to the kindred transgresses the limits laid down by the Wakf Validating Act that interest can be cut out and the benefits captured by charity, and proceeded to apply the above principle to the case before him.

I may mention that although the decree passed by the Lahore High Court in that case was affirmed by the Privy Council in (Supra) the Privy Council did not express any opinion on the principle on which the Lahore Court had acted. However, the point is directly covered by two Division Bench cases of this Court : Munir Uddin Ahmad v. Sunni Central Board of Wakfs, U. P. Lucknow, 1959 All LJ 486, and Abdul Qavi Khan v. God Almighty : AIR1962All364 . In the iormer case it was laid down that the invalidity of certain gifts or benefactions does not involve the destruction of the endowment as a whole and that this principle would also apply to Muslim Wakfs. In the latter case, the principle laid down in the former was followed and it was held that the failure of the wakf in favour of intermediate beneficiaries had the effect of accelerating the wakf in favour of the ultimate beneficiary i. e. the charity. Against these authorities Mr. S. J. Hyder has cited another Division Bench case of this Court : Mohammad Sabir AH v. Tahir Ali : AIR1957All94 , That case does not, however, support the case of the appellant. There, a wakf had to justify itself both under the provisions of the Mussalman Wakf Validating Act of 1913 and the Oudh Estates Act, the waqf . was held valid under the former Act, but it was held to be in contravention of the provisions of the Oudh Estates Act. The observations made by Agrawala, J. in considering whether the wakf was to be set aside as a whole or only to the extent of such of its provisions as contravened the Oudh Estates Act cannot, therefore be applied in judging the validity of a wakf with reference to the Musalman Wakf Validating Act of 1913. The authorities too are thus clearly against the contention advanced by Mr. S. J. Hyder and the two Division Bench cases of this Court, which deal directly with the question involved in the instant case, conclude the case against the appellant.

14. The finding of the trial court that the respondents did not belong to the family of the appellant is certainly correct. It is also clear that no provision could have been made for the descendants of the respondents under Section 3(a) of the Mussalman Wakf Validating Act of 1913. But the result was not that the wakf became invalid at its inception but that immediately after the death of Fahima Bibi the benefit of the wakf went to the ultimate beneficiary designated in the deed of wakf. The appellant has, consequently no interest in the property in suit and his claim has been rightly dismissed.

15. In view of my finding that the appellant has no interest in the property in suit, it is not necessary to enter into the question whether the suit of the appellant is incompetent by reason of the failure to deposit the costs of the suit filed by Sheikh Karamat or into the question whether the suit is barred by limitation.

16. The appeal fails and it is accordingly dismissed. I make no order as to costs in this Court.


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