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Subhan Ali and anr. Vs. Mt. Makhdomulnissa - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1948All11
AppellantSubhan Ali and anr.
RespondentMt. Makhdomulnissa
Excerpt:
- 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 state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under..........second appeal is whether the waqf deed executed by hidayat ullah on 16th september 1919 is a valid waqf deed under the provisions of the mussalman waqf validating act, (6;vi. of 1913). both the courts below have held it to be a valid waqf deed. i agree with their view.2. under this deed hidayat ullah abdicated the property detailed therein to god, subject to certain conditions for obtaining spiritual benefit. the conditions provided that the income from the property would be spent in the first instance 1 on the expenses of girhwin sharif fatiah and milad and the balance after defraying the expenses on these items would be divisible among the beneficiaries. in the earlier part of the waqf deed it was mentioned that half the income of the property would go to his elder daughter for the.....
Judgment:

Raghubar Dayal, J.

1. The sole question for determination in this second appeal is whether the waqf deed executed by Hidayat Ullah on 16th September 1919 is a valid waqf deed under the provisions of the Mussalman Waqf Validating Act, (6;VI. of 1913). Both the Courts below have held it to be a valid waqf deed. I agree with their view.

2. Under this deed Hidayat Ullah abdicated the property detailed therein to God, subject to certain conditions for obtaining spiritual benefit. The conditions provided that the income from the property would be spent in the first instance 1 on the expenses of Girhwin sharif Fatiah and milad and the balance after defraying the expenses on these items would be divisible among the beneficiaries. In the earlier part of the waqf deed it was mentioned that half the income of the property would go to his elder daughter for the expenses of herself and her children and the other half of the income would similarly go to the second daughter for smilar purposes. Lastly, the deed provided that no interference of any kind would be permissible in connection with the expenses on charitable purposes.

3. The deed makes it clear and it has been so observed in the judgments of the Courts below that there is no express provision in this waqf deed to the effect that the balance of income after meeting the expenses on the specified religious and charitable objects would ultimately be utilised for religious, pious or charitable purposes of any permanent character. The two Courts, however, held that impliedly the deed provides for such expenditure of the balance, and I agree with this interpretation of the deed.

4. The very fact that the property has been dedicated to God implies that the owner and his relations would have no more vright in it arid that any income arising out of the property would be the income of God, which must in this world be utilised for purposes which would be religious, pious or charitable. I do not consider it essential that a deed contemplated under the Mussalman Wakf Validating Act must provide for the dedication of the property to God as is the first requisite of a waqf under the ordinary Mohammedan Law. It, therefore, appears that Hidayatullah must have contemplated the utilisation of the entire income to religious, charitable or pious purposes in case the income was just sufficient to meet the three particular items mentioned in the deed or in case there was none existing among the beneficiaries mentioned n the deed.

5. The deed provides for the appointment of mutwallis from outside the beneficiaries and for their appointment when there be no beneficiary. When there would be no beneficiary ordinarily the mutawallis would either spend the entire money on three specified objects or on them and the balance on other charitable or religious objects.

6. There is nothing in the deed to suggest that any amount must be spent on the beneficiaries. The beneficiaries would get a share in income only when the mutwallis had spent adequately on the specified objects and a balance remained with them. It, therefore, appears to me to be rather unreasonable to contend that as the deed does not expressly provide for the ultimate balance to go to religious, pious or charitable purposes this deed be Considered to be invalid. The deed is a valid deed so long as a beneficiary exists and it becomes invalid, if the argument is accepted, when there be no beneficiary and when it must be held that there would remain a balance with the mutwallis after meeting the specified objects. The argument presupposes the necessary existence of two contingencies, firstly, that the income on the specified objects can only be limited and that the income of the property dedicated must exceed this limited amount. I think that any amount can be spent without bringing oneself to charge of being extravagant on the three objects mentioned in the deed.

7. The desirability of the provision Section 3, Mussalman Waqf Validating Act, appears to be in cases where the waqf provides for practically the entire income of the property to be spent on the maintenance and support of his family without in any way divesting himself of the property or without providing for any or appreciable expenditure on charities or religious objects initially.

8. I, therefore, hold that the waqf deed in suit is a valid waqf deed as it provides for expenditure on specified charitable and religious objects for all times and dedicates the property to God. I, therefore, dismiss the appeal. I make no order as to costs as the opposite party was not represented.


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