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Naim-ul-haq Vs. Muhammad Subhan-ullah - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
Decided On
Reported in(1919)ILR61All1
RespondentMuhammad Subhan-ullah
muhammadan law - waqf--illusory dedication--act no. vi of 1913 (musalman waqf validating act), preamble and sections 3 and 4--act not retrospective. - - , 116. so far as the case now before us is concerned, i do not think i can state the effect of these decisions better than by quoting the words of a learned judge of this court in mazhar husain khan v. ' this is bad enough; ' but the learned maulvi is too careful of his own interests to be satisfied even with this. 10. the position is in no way improved by the deed of the 10th of june, 1889. by this time the maulvi's schemes for a family settlement had been a good deal upset by the death of his only surviving son. 20,000 per annum, adding that with good management he believes that this 'can be much increased. the one person who would be.....piggott, j.1. the plaintiff in this case is the daughter's son, and the defendant the son's son, of one maulvi habib-ullah khan, who died on the 3rd of april, 1891. the plaintiff's case is that the said maulvi had, in his life-time, made a waqf, or dedication for religious and charitable purposes under the muhammadan law, of certain property specified at the foot of the plaint; that the defendant is in possession of the said property as mutawilli, or trustee of the endowment, but is misconducting himself in various ways, and principally by wasting and alienating the endowed property and by refusing to make payments which he is bound to make under the terms of the endowment. the plaintiff claims to be interested in the trust as a beneficiary under the same, and to be entitled to maintain.....

Piggott, J.

1. The plaintiff in this case is the daughter's son, and the defendant the son's son, of one Maulvi Habib-ullah Khan, who died on the 3rd of April, 1891. The plaintiff's case is that the said Maulvi had, in his life-time, made a waqf, or dedication for religious and charitable purposes under the Muhammadan law, of certain property specified at the foot of the plaint; that the defendant is in possession of the said property as mutawilli, or trustee of the endowment, but is misconducting himself in various ways, and principally by wasting and alienating the endowed property and by refusing to make payments which he is bound to make under the terms of the endowment. The plaintiff claims to be interested in the trust as a beneficiary under the same, and to be entitled to maintain the suit independently of the provisions of Section 92 of the Code of Civil Procedure. The reliefs sought are a declaration that the property specified at the foot of the plaint is 'the waqf property,' the removal of the defendant from the post of mutawilli, or managing trustee of the endowed property, and the appointment of a new mutawalli, to be selected by the court in its discretion from amongst the persons entitled to be so appointed under the terms of the alleged deed of endowment. A list of these persons, including the plaintiff himself, is append ed to the plaint; but none of the other persons-in the list has been impleaded as a party to the suit. In the defendant's written statement as originally filed the suit was resisted on a variety, of grounds; but it was admitted that a valid endowment or waqf had been made by Maulvi Habib-ullah Khan of the property, in suit. At a later stage the defendant applied to the trial court for permission to amend his pleadings in this respect, his case being that his admission above referred to had been made upon defective legal advice and amounted to nothing more than, an erroneous admission upon a point of law. He was allowed to file; an amended pleading, in which he denied that Maulvi Habib-ullah Khan had ever made a valid waqf of any property, and pleaded more particularly that, on no possible view of the facts or the law, could it be held that there had ever been any dedication to religious or charitable purposes of the property specified in the lists (B) and (C) appended to the plaint. The case went to trial on issues framed upon the pleadings as thus amended, and the plaintiff has no valid ground for complaining of the exercise of a discretion undoubtedly inherent in the trial court. It may indeed be pointed out at once that it has had to be conceded in argument before us that no waqf was ever made of the property specified in list (B).

2. The court below framed a number of issues, but has dismissed the plaintiff's suit, in the main, upon a finding that there was never any valid waqf or dedication of any of the property in suit to religious or charitable purposes. The memorandum of appeal to this Court is a prolix and argumentative document; but in substance three points only are taken and have been argued before us.

(a) It is contended that the defendant is estopped from denying that there has been a valid waqf of the property in suit.

(b) It is claimed that a valid waqf under Muhammadan Law was created by three specified documents, admittedly executed by Maulvi Habib-ullah Khan; or in the alternative by the first two of these documents or again in the alternative by the third document, which is the will of the said Habib-ullah Khan.

(c) It is pleaded that, even if the court should repel the second of the above contentions, in view of the law as laid down, by sundry authoritative decisions prior to the passing of the Musalman Waqf Validating Act (No. VI of 1913), the said Act is retrospective in its effect and that the arrangement effected by the will of the deceased Maulvi Habib-ullah Khan amounts to a valid waqf under the provisions of this Statute. On behalf of the respondent each of the above propositions is denied, and it is also sought to support the decision of the court below on a plea decided by that court against the defendant, namely.

(d) that the suit as brought, for the reliefs specified in the plaint, is one which a person claiming an interest in the alleged trust could only maintain under the provisions of Section 92 of the Code of Civil Procedure, so that the plaint ought to have been rejected as it stood, on the ground that it contravenes the provisions of that section and was filed without the consent of the prescribed authority.

3. Strictly speaking the questions raised in the pleadings (a) and (d) above set forth are in their nature preliminary to the consideration of the appeal on its merits, as the questions raised in pleading (b) and (c) could not arise if point (a) were decided in favour of the appellant or point (d) in favour of the respondent. The case has, however, been fully argued out before us; and I find it practically more convenient to proceed at once to the consideration of the main questions raised by the appeal.

4. According to the plaint the waqf was created by a deed, dated the 30th of January, 1885, the other two deeds referred to in the plaintiffs pleadings being merely supplementary documents serving to supply omissions in, and to give directions required by, the actual deed of waqf. The plaintiff is no doubt entitled to ask that all three documents should be taken into consideration, and even, that they should be read together in connection with his contention that the defendant as mutawalli has been acting in contravention of the conditions of the trust; but there are two questions which he cannot be allowed to confuse. His case in the court below was that Maulvi Habib-ullah Khan created the waqf in question in his life-time; he never set up a testamentary waqf intended to come into operation at the death of the testator. Had he done so, certain questions would have been raised as to, which there has been no inquiry in the court below: it has not been ascertained what heirs Maulvi Habib-ullah Khan left him surviving at the moment of his death, or whether the said; heirs! gave their consent to the waqf so as to make it binding in respect of more than one-third of the property of the testator. In the eye of the Muhammadan law a waqf is a transfer of property.

5. where by the transferor or waqf divests himself of the ownership of the same in favour of the Almighty: there is consequently a very wide difference between setting up a transfer effected by Maulvi Habib-ullah Khan on the 30th of January, 1885, and alleging a transfer by testamentary bequest, which took effect only on the death of the testator on the 3rd of April, 1891, If the result of the case turned upon it, which I do not think it does, I should entertain grave doubts as to whether it was open to this Court, in appeal, to find that there had been no waqf by Maulvi Habib-ullah Khan in his life-time, but a valid testamentary waqf taking effect from the date of his death.

6. With regard to the principles of law applicable to the consideration of the three main documents in this case we were referred to the usual standard authorities, by which the law on the subject was settled prior to the passing of Act No, VI of 1913. I set them down here for convenience of reference.

7. Mahomed Ahsanullah Chowdhry v. Amarchand Kundu (1889) I.L.R., 17 Calc., 498, Rasamaya Dhur Chowdhuri v. Abul Fata Mahomed Ishak (1891) I.L.R., 18 Calc., 399, Abul Fata Mohamed Ishak v. Rasamaya Dhur Chowdhri (1894) I.L.R., 22 Calc., 619, Mujib-un-nissa v. Abdur Rahim (1900) I.L.R., 23 All., 233, Muhammad Munawar Ali v. Razia Bibi (1905) I.L.R., 27 All., 320, Abdul Gafur v. Nizam-ud-din (1892) I.L.E., 17 Bom., 1.

8. Another case of considerable interest, which may also be referred to in connection with the question of the retrospective effect of Act No. VI of 1913, is that of Ramanandan Chettiar v. Vava Levvai Marakayar (1916) 44 I.A., 21: 1. L.R., 40Mad., 116. So far as the case now before us is concerned, I do not think I can state the effect of these decisions better than by quoting the words of a learned Judge of this Court in Mazhar Husain Khan v. 'Abdul Hadi Khan (1911) I.L.R. 33 All., 400 (410):

A valid waqf is created if the owner of the property, the subject of the waqf, divests himself of it and appropriates it to charitable or religious purposes In order to constitute a valid waqf there must be a substantial dedication of the property to religious or charitable uses at sometime or other. There must be a substantial and not merely a colourable dedication of the property; the religious or charitable purpose should not be so unsubstantial and illusory as to give to the settlement merely a colour of piety, the real object being the aggrandisement of the family.

9. Judged by these tests the 'dedication'said to be effected by the deed of the 30th of January, 1885, will not bear examination for a moment. There is not substantial and effective alienation of the property; the transaction is 'illusory' in the plainest sense of the word. The man who executed that document had no intention whatever of parting, in his own life-time, with the effective ownership of any property whatsoever. He makes a great parade of piety, learning and liberality, but he is at the utmost pains to take away with one hand all that he purports to give with the other. He specifies no objects for the endowment, appoints himself mutawalli for life, and quite explicitly coven-ants that: 'I shall during my life-time spend the profits of the property at my own discretion.' This is bad enough; but what absolutely clinches the matter is that the pious executant reserves to himself 'exclusive power to transfer' any of the property ostensibly dedicated. There is a vague suggestion that this will only be done 'if I find that it causes loss in any way;' but the learned Maulvi is too careful of his own interests to be satisfied even with this. He goes on to provide in express terms that he is to be at liberty to exercise this power of alienation at his own absolute discretion, 'if for some other reason I find it advisable to do so.' Here again he makes a half-hearted attempt to keep up the attitude of the pious donor by stipulating that he will 'purchase another property in lieu of it and make it part of the property endowed;' but even this limitation of his authority irks him, and he promptly adds that ho may also, in the alternative, 'spend the consideration for some pious purposes,' of the piety of which he is himself of course the sole judge. A document so worded would not operate to transfer ownership in favour of any private individual, and why it should be supposed to do so in favour of the Almighty I cannot imagine. The document is a sham from first to last; it creates no endowment and dedicates' no property to any purpose whatsoever.

10. The position is in no way improved by the deed of the 10th of June, 1889. By this time the Maulvi's schemes for a family settlement had been a good deal upset by the death of his only surviving son. The only possible successor he could think of to the office of mutawalli which he had reserved to himself under the first deed, was the son of his other son, the present defendant, at that time a mere child. He accordingly supplements the'deed of the 30th of January, 1885, by nominating this defendant to succeed him as mutawalli, by putting him under the guardianship of the present plaintiff and by laying down certain rules for his guidance. He is careful to reiterate the fact that he himself retains full control over the property for his own life-time, under no obligation to do anything but spend the money on 'proper objects'; but he refers to his will, which he was then engaged in drawing up, for a statement of the purposes on which the income of the endowed property is to be spent hereafter by the mutawalli who shall succeed him. He also takes occasion to lay down directions as to what is to become of the property when 'no descendant of mine, male or female, is left.' I am quite clear that, if no waqf was created by the deed of 1885, none came into existence with the execution of this document on the 10th of June, 1889.

11. There remains for consideration, the will of Maulvi Habib-ullah Khan, a portentous document, filling twenty-eight printed pages of our record, commenced by him on the 1st of June, 1889, and finally executed on the 29th of October, 1889. The document requires to be considered as a whole. It does undoubtedly make provision for purposes which may fairly be classified as religious or charitable; but in its essence it is a family settlement in perpetuity. The mind of the testator is glaringly apparent from the very outset. He is going to provide for his lineal descendants, in the male and female line, for ever, so long as one of them is left; he is careful to tie up the property against all possibility of waste on their part and to keep it out of the reach of their creditors. What is more, he is going to provide them with a steadily increasing property. The present income of the estate which he thus 'dedicates' to their advancement; he estimates at Rs. 20,000 per annum, adding that with good management he believes that this 'can be much increased.' He limits the future mutawalli rigidly to a certain scale of expenditure; he reckons that after the mutawalli has drawn his own comfortable remuneration, paid all the prescribed allowances to other members of the family, met all the household expenses and all the payments on account of charities or religious observances which he has laid down,'the expenses cannot exceed Rs. 10,000 or Rs. 1l,000.' The handsome (and of course steadily increasing) surplus is to be regularly invested by the mutawalli for the benefit of the endowment. The ingenious old gentleman has even hit upon a plan for stimulating the energies of future mutawullis in the matter. Whatever properties they acquire out of the annual surplus, they may keep one-fourth of the income of the same to themselves, adding it to the prescribed remuneration for their services. The remaining three-fourths, however, of the income of the newly acquired properties must go to swell the endowment by an ever increasing series of fresh investments. In fact, if Maulvi Habib-ullah Khan can contrive it, this monstrous estate is to go on growing indefinitely, snowball fashion, the prescribed expenditure on religious and charitable objects bearing an ever decreasing proportion to the total income and the available surplus for re-investment increasing year by year, and the process is to continue so long as any descendant of the testator, in the male or female line, survives. The possible contingency that the number of his lineal descendants might increase until no adequate provision remained for their maintenance in the 'compulsory' and 'optional' expenses prescribed by the will does not seem to have been fairly faced by the testator. The one person who would be increasingly well off is the mutawalli for the time being, with his remuneration of 25 percent of the income of the newly acquired properties. The object of the entire scheme is to create a perpetuity of the most poisonous kind, under which the endowment is to continue growing like some unwholesome excrescence on the body politic, for the benefit of no one in particular except the mutawalli for time being, but for the honour and glory of the testator and of his family, from amongst whose members the mutawall is always to be chosen. In the argument before us the parties were divided as to whether, the total provision made for expenditure on objects which could by any stretch of language, be described as 'religious, pious or charitable' amounted to Rs. 1,476 or to Rs. 2,674 per annum. The truth probably lies between the two extremes; but the plaintiff has made up his total by including all the life annuities granted to old servants of the testator, such as any gentleman of position might reasonably and properly desire to make by his will. I should not be disposed to accept a terminable life annuity of this sort as representing expenditure on a 'charitable' object in the sense in which the word is used even in the Waqf Validation Act of 1913. Many of the other items of expenditure claimed by the plaintiff as of a 'religious' or 'charitable' nature amount to no more than the incurring of such expenses as any Muhammadan gentleman of position would expect) to meet in connection with the recurring festivals and observances of his religion. The one really substantial item is the annual expenditure on the up-keep of an Arabic School; and I note that one of the controverted points in the court below was whether this school had not been compulsorily closed for want of pupils, In any case it seems clear to me that the expenditure prescribed in the will for purposes of a religious and charitable nature was less, than 10 per cent, of the testator's estimate of the income of the endowed property, and that this percentage would necessarily be a continually decreasing one if the terms of the will were carried out. We were told in argument that this is just the kind of family settlement which we may expect under Act No VI of 1913. I trust that the common sense of the Muhammadan community will protect them from the creation of many waqf such as that purporting to be embodied in the document now in question; if not, I can only say that the Statute will prove as injurious to the true interests of that community as to those of the country at large.

12. In any case I feel no hesitation in holding that the will of Maulvi Habib-ullah Khan, considered apart from the provisions of Act VI of 1913, does not constitute a valid waqf. The dedication of property to religious or charitable purposes is 'unsubstantial and illusory.' The real object of the testator is fully apparent from the terms of he document itself; it is 'under a colour of piety' to effect 'the aggrandisement of his family.' I think that even this object is clumsily and somewhat ineffectively carried out, unless the expression above quoted be enlarged so as to read, 'the aggrandisement of the family name;' but the question of the testator's object requires to be considered apart from the question of the effectiveness of the methods by which he pursued it.

13. The evidence as to the subsequent conduct of the parties does not seem to me to carry the case much further. When Maulvi Habib-ullah Khan died the defendant was still a boy, apparently only about ten years of age, The plaintiff accordingly took possession of the property believed to be included in the waqf as guardian on behalf of the minor defendant, treating the latter as having succeeded to the mutawalliship. This record does not show what heirs of Habib-ullah Khan were in existence whose interests were adversely affected by this arrangement, what was the extent of that gentleman's property which he did not purport to include in the family settlement made by his will, or what was done about this other property. So far as the evidence in this case goes it would seem that the properties specified in list {B) appended to the plaint, which had devolved on Maulvi Habib-ullah Khan subsequently to the month of October, 1889, were treated on the same footing as the rest of the alleged trust property, though it has had to be conceded in this Court that these properties were never made the subject matter of any waqf. Under the terms of the will the plaintiff's guardianship was to continue until the defendant attained the age of twenty-one; but the parties took it on themselves to terminate the arrangement about a year earlier, by a deed of the 31st of July, 1901. It is worth noticing that under the plaintiff's management the endowed property had been increased in ten years by acquisitions bringing in an additional income of Rs. 5,000 a year. Under the terms of the will the plaintiff was entitled to one-fourth of this income; but he bargained with the defendant for the transfer to himself in proprietary right of certain landed property taken from out of the new acquisitions. He accepted this transfer in lieu of one-fourth of the income, of the newly acquired properties and of another allowance to which he was entitled under the will. In this transaction both parties seem to have arrogated to themselves a freedom in the matter of dealing with the endowed properties not strictly consistent with the idea of a waqf; yet they profess in general terms to be acting under the dispositions effected by the will of their common grandfather. I can see nothing in the conduct of the defendant in this connection by which he can be said to have caused the plaintiff to alter his position to the disadvantage of the latter; there is, therefore, nothing to support the plea of estoppel. The defendant did, no doubt, enter into the possession of the property ostensibly as mutawalli of a waqf, but neither can it be said that he at any time made any representation to the plaintiff on the subject in consequence of which the latter changed his position to his own disadvantage nor has either party consistently dealt with the property in suit as held under the alleged trust. The plaintiff had to admit that during his period of management the had incurred expenses (for instance Rs. 10,000 on the wedding of the defendant) not warranted by the terms of their grandfather's will; and the defendant has been raising money by hypothecation of portions of the property in suit in a manner very difficult to reconcile with any honest belief on his part that it had been made the subject of a valid waqf. It has been proved, moreover that the largest loan thus raised was arranged with the help of the plaintiff, who signed the mortgage deed as an attesting witness.

14. On the first two points set down for determination my findings are that there is no estoppel against the defendant, and that no valid waqf was created by any of the deeds executed by Maulvi Habib-ullah Khan, whether considered singly in combination.

15. I am also satisfied that no waqf came into existence with the passing of Act No. VI of 1913, in consequence of any retrospective action on the part of that statute. I have already pointed out that a waqf under the Muhammadan law involves a transfer of the ownership of the property which is made the subject matter of the same; if the Legislature intended to give validity as transfers of property to an unascertained number of past transactions which had no such effect at the time when they were executed, I should have expected it to do so in very clear terms and subject to various conditions and precautions. The utmost that can be said about the terms of the Act as passed is that they involve some ambiguity; I find no provision made for the rights of bond fide transferees for value, and no period laid down within which the documents said to be thus validated must be propounded or claims on the same preferred. In examining the Statute itself I find nothing decisive on the point in the wording of the preamble, or in the fact that there is no express provision as to the date from which the Act is to come into force. On the other hand the governing words seem to be found at the commencement of Section 3--'It shall be lawful--and these on the face of them imply a power to be exercised in future, from the date of the passing of the Act, and repel the suggestion of retrospective action. A difficulty has been raised regarding the expression 'shall be deemed to be invalid' in Section 4; but the court below is certainly right in saying that this entire section is controlled by the opening words, 'no such waqf' It would be unfortunate if the courts were driven to the conclusion that this one section of this short Act is retrospective, while the rest of the Act is not, I think this contingency can be avoided by interpreting the words 'no such waqf' in Section 4 as equivalent to 'no waqf hereafter created under the provisions of Section 3.' I do not say that this is the only interpretation of which the words are capable; but it seems to me a possible and a fairly reasonable one, and it makes sense of the Act as a whole.

16. Such authority as has hitherto come into existence on the point is wholly against the appellant. The question has been touched upon in argument before the Privy Council in the last of the cases on the list given in an earlier part of this judgment (44 Indian Appeals, p. 21). It was the respondent in that appeal who stood to win if Act No. VI of 1913, has retrospective effect and counsel for the appellant repudiated this contention in advance. As it happened the respondent had his case won independently of the Validating Act, so the point was not pressed; but the words used by their Lordships in disposing of the appeal do not suggest to my mind that they would have looked favourably on the suggestion that the Act operated so as to validate past transactions, In the following cases the point has been considered and opinions have been expressed against the retrospective action of the statute: Rahimunissa Bibi v. Shaikh Manik Jan (1914) 19 C.W.N., 76 Mahomed Bukth Majumdar v. Dewan Ajman Reja (1915) I.L.R. 43 Calc., 158, and Amir Bibi v. Aziza Bibi (1914) I.L.R., 39 Bom., 563.

17. In no one of these cases has the particular difficulty been dealt with which has been pressed upon us with regard to the wording of Section 4 of the Act; arid in the second case the opinion expressed on the point now in issue is of the nature of an obiter dictum. At any rate no High Court has yet ventured to interpret the Act in the sense desired by the present appellant.

18. There remains only the contention raised by the respondent as to the bearing on this suit of Section 92 of the Code of Civil Procedure, and this it is not necessary for me to determine now in order to dispose of the appeal. I desire, however to say a few words on the point. Some of the arguments addressed to us on behalf of the appellant overlooked the fact that there has been a substantial change in the law since the passing of the present Code of Civil Procedure. Act No. V of 1908. Under the corresponding Section 539 of the former Code there was a certain conflict of authority on the question whether the section had any restrictive effect in respect of any right of suit which might exist independently of its provisions. The addition of Clause (2) to Section 92 of Act No. V of 1908, makes it clear that the section is mandatory. A suit claiming any of the reliefs specified must be brought under and in conformity with its provisions, or not at all. If the plaintiff sets up a trust, 'created for public purposes of a charitable or religious nature,' and claims 'as a parson having an interest in the trust' any of the reliefs specified in the section he must do so in accordance with its terms. One of the objects of the section is that the jurisdiction of our courts shall not be invoked to control and supervise the administration of public trusts unless and until a responsible officer of Government has satisfied himself that the matter is one which calls for interference in the public interests. In the present suit the main reliefs sought are those specified in Clauses (a) and (b) of Section 92(1), Civil Procedure Code; the additional relief sought by way of declaration is probably not maintainable, at all without a prayer for consequential relief, and is in any case the same relief in substance as is specified in Clause (c), be ides being included in Clause (h) of the same sub-section. The present plaintiff therefore could only get round the prohibition laid down in Section 92(2) aforesaid by contending that the religious and charitable purposes of the waqf which he desires to set up are not 'public purposes' within the meaning of the section. An ultimate dedication of property for the benefit of the poor would, I take it, certainly be a 'public' purpose. Under the Musalman Waqf Validating Act (No. VI of 1913) the Muhammadan community has obtained legislative recognition of the claim that, under the religious law binding upon a member of that community, he is entitled to settle property in perpetuity on his 'family, children, or descendants,' provided only he keeps up at least the pretence that some purpose of a 'public' nature is served by the endowment. I can only ask whether Muhammadan lawyers generally would be prepared, now that Act No. VI of 1913 is on the Statute book, to turn round and say that in a 'family waqf,' under the said Act the ultimate dedication of the property to public purposes is after all such a mere pretence that trusts or endowments of this nature are not subject to the provisions of Section 92 of the Code of Civil Procedure.

19. Having said this much, I think it fair to add, with reference to the facts of this particular case, that I am far from holding that suit by the present plaintiff to recover the arrears of the allowance reserved to him under, his grandfather's will, and not bargained away by him in the deed of July 31st, 1901, would not be maintainable, On the facts at present before us I think the defendant would find it hard to resist such a suit. If he has taken this property, or any of it, under the terms of his grand-father's will, he would seem to have taken it subject to a trust in favour of various persons, including the present plaintiff, and the liability could be enforced upon a suit properly framed.

20. The present suit has in my opinion been rightly dismissed by the learned Subordinate Judge, and I would dismiss this appeal with costs.

Walsh, J.

21. I entirely agree, I very much doubt whether the plaintiff could have maintained this suit in its present from in any case, but the main Contention that there was any genuine religious dedication at all has completely broken down. No doubt there are private trusts in the will, the breach of which might form the ground for a claim for relief, but this is not the plaintiff's case. Taking the view we do, the retrospective operation of the Act of 1913 does not arise for decision; but, after hearing the point fully argued, I agree with my brother's opinion about it.

22. Appeal dismissed with costs.

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