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Nosh Ali and ors. Vs. Shamsunnesa Bibi and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1939All319
AppellantNosh Ali and ors.
RespondentShamsunnesa Bibi and anr.
Excerpt:
.....into possession of her husband's property peacefully and without force or fraud in lieu of her dower debt is heritable so as to entitle her heirs to remain in possession until the debt is satisfied. the income of the shops was to be applied towards the expenses of the said mosque and the mutwalli was directed to construct a pucca well at a suitable place. 11,000, also the money which remained after defraying all the aforesaid expenses out of the income of the endowed property, was to be kept in safe custody and the accumulation was to be applied in purchasing immovable property which was to be added to the endowed property. on the other hand, it is clearly stated that the corpus is to be spent on the objects of the wakf which means that in due course the entire capital will be..........dedicate their share as waqf; that the waqf was illegal and opposed to mahomedan law and that the dower debt was only rs. 101 and not rs. 2000. the plaintiffs accordingly prayed for a decree for possession. it appears that mt. fahimo died soon after the execution of the deed of waqf and defendant 1 succeeded in having her name recorded in village papers as mutwalli in succession to mt. fahimo. the suit was contested by defendant 1 who pleaded inter alia that the waqf was valid and operative and that the correct amount of dower debt was rupees 2000. the trial court held that the amount of dower debt was only rs. 101 as alleged by the plaintiffs and decreed the suit for possession over the property in suit on payment of rs. 75-12-0. the lower appellate court modified the decree of the.....
Judgment:

Mohammad Ismail, J.

1. This is a plaintiffs' appeal arising out of a suit brought for the recovery of possession over three, fourths of the property owned by one Sheikh Nasru. Sh. Nasru died in July 1932 and his widow Mt. Fahimo Bibi assumed possession of the entire property left by Sh. Nasru in lieu of her dower. Mt. Fahimo under a deed dated 25th July 1932 dedicated the entire property as waqf for charitable purposes and appointed herself as mutwalli for life and on her death defendant 1 was nominated to succeed her as mutwalli. The plaintiffs came to Court on the allegation that they were entitled to succeed to three-fourths share in the property left by Sh. Nasru as residuaries; that Mt. Fahimo had no right to dedicate their share as waqf; that the waqf was illegal and opposed to Mahomedan law and that the dower debt was only Rs. 101 and not Rs. 2000. The plaintiffs accordingly prayed for a decree for possession. It appears that Mt. Fahimo died soon after the execution of the deed of waqf and defendant 1 succeeded in having her name recorded in village papers as mutwalli in succession to Mt. Fahimo. The suit was contested by defendant 1 who pleaded inter alia that the waqf was valid and operative and that the correct amount of dower debt was Rupees 2000. The trial Court held that the amount of dower debt was only Rs. 101 as alleged by the plaintiffs and decreed the suit for possession over the property in suit on payment of Rs. 75-12-0. The lower Appellate Court modified the decree of the trial Court and decreed the suit on payment of Rs. 1500 holding that the correct amount of dower was Rs. 2000. The plaintiffs have preferred an appeal from the decree of the Court below.

2. In second appeal the finding of the Court below on the amount of dower must be accepted as conclusive. The main point argued by learned Counsel for the appellants is that the waqf of the property in dispute is bad in law. The contention of learned Counsel is that it was not open to Mt. Fahimo to dedicate the property as waqf because she was not the full proprietor of the same. This question does not appear to have been argued before the Court below, but as the validity of the waqf was challenged in the written statement, we have allowed counsel to address us on this point. Before considering the legal aspect of the question we proceed to examine the form of dedication. In the deed Mt. Kahimo stated that she had inherited one-fourth of the property left by her husband as heir, that she was in possession of the remaining three-fourths in lieu of dower debt and that she dedicated the entire property as waqf in the name of God Almighty for charitable purposes. In para. 6 of the deed she stated:

In case any of the residuaries brought a suit for possession over the three-fourths share of the property on payment of the proportionate amount of dower the mutwalli will include the amount so realized in the waqf estate and will spend the money on the objects of the waqf.

3. In para. 2 the mutwalli is directed to spend the income of the waqf estate on the requirements of Juma mosque of the town of Nizamabad and other religious purposes. Para. 4 directs that the mutwalli will not be permitted to transfer or otherwise encumber the dedicated property. It cannot be disputed that the right of a Mahomedan widow who has entered into possession of her husband's property peacefully and without force or fraud in lieu of her dower debt is heritable so as to entitle her heirs to remain in possession until the debt is Satisfied. It has been held in numerous cases that widow may transfer her right to possession if she also assigns her right to receive the unpaid dower. If the right to receive the dower and the right to remain In possession are transferred to the same person, ha cannot be ousted by the heirs of the husband until the dower debt is paid off : see Ali Bakifa v. Ailadad Khan (1910) 32 All. 551 and Amir Hasan Khan v. Mohammad Nazir Hasan : AIR1932All345 . Learned Counsel for the appellants however contends that a Mahomedan widow is not allowed to dedicate a property of which ishe acquires possession in lieu of dower. Under the Mahomedan law the property dedicated must be of a reasonably permanent character and the waqif may make arrangements that the use of and income accruing from the specified property shall ibe permanently devoted to specified objects. Above all the waqif must be the owner of the property. Unless the waqif is the owner of the dedicated property, he has no permanent control over that property and a dedication thereof will be invalid under Mahomedan law. The Eight Hon'ble Ameer Ali in his book on Mahomedan Law, Vol. 1 p. 266, Edn. 4, says:

But the waqf of a building on land belonging to another of which the dedicator is in possession as bailee or lessee is not valid.

4. In a recent Full Bench case, Mt. Rahman v. Mt. Bakridan (1936) 28 A.I.R. Oudh. 213 Mt. Rahman v. Mt. Bakridan (1936) 28 A.I.R. Oudh 213, it was held that a valid waqf cannot be made in respect of the rights of a usufructuary mortgagee in an immovable property. We have no hesitation in holding that Mt. Fahimo had no right to dedicate the property of which she was in possession in lieu of dower. The next question to be determined is whether a decree for possession in favour of the plaintiffs can be passed without payment of the proportionate dower debt. The decision of this question will depend on the decision of the further question whether dedication of money is recognized by Mahomedan law. This question is by no means free from difficulty. There is great conflict of judicial opinion on this point. Banerji and Aikman JJ. in Abu Sayid Khan v. Bakar Ali (1902) 24 All. 190 had to consider a more or less similar question. After considering various authorities the learned Judges observed:

The learned Counsel on both sides have addressed to us very able and erudite arguments and have brought to our attention a number of authorities of Mahomedan law in addition to those referred to in Mr. Ameer Ali's book. We have carefully considered those authorities. The conflict between them is bewildering. Some assert that such an endowment as the present is absolutely void; others, that it is valid when customary; and others again - and those are in the majority - that it is valid without any restriction. Not only is there a conflict between different jurists, but we find different and irreconcilable opinions attributed to the same jurists by different commentators.

5. In the above-mentioned case the appropriator Fakhruddin included in the deed of waqf executed by him a sum of Rs. 11,000 which he had deposited with a firm in Cawnpore. In the deed he made provisions in regard to the disposal of the said sum, Rs. 5000 out of the endowed sum of Rupees 11,000 was to be spent in constructing a mosque with shops at a proper place. The income of the shops was to be applied towards the expenses of the said mosque and the mutwalli was directed to construct a pucca well at a suitable place. The remaining amount out of the endowed sum of Rs. 11,000, also the money which remained after defraying all the aforesaid expenses out of the income of the endowed property, was to be kept in safe custody and the accumulation was to be applied in purchasing immovable property which was to be added to the endowed property. The learned Judges held that the wakf of money was valid.

6. Prima facie, this ruling is against the contention of learned Counsel for the appellants. A comparison of the directions contained in the deeds of wakf will however reveal the distinguishing features. In the present case in the deed of wakf no direction is given for the investment of the fund; on the other hand, it is clearly stated that the corpus is to be spent on the objects of the wakf which means that in due course the entire capital will be exhausted and no portion of the dower money will be left in the hands of the mutwalli. In para. 318, Sub-clause (3) of Wilson's Mohammadan Law it is stated:

Other moveable articles not necessarily consumed in the using where the dedication of such things is sanctioned by custom.

7. Sub-clause (4) says:

As to money, and consequently as to shares in the joint stock companies and other modern forms of investment, the High Courts of Calcutta and Allahabad have given conflicting opinions.

8. These conclusions are based on an examination of authorities of the two High Courts mentioned above and in particular on a passage in Ameer Ali's Mohammadan Law, Vol. 1, pp. 202 to 207 which runs thus:

From these principles it will be seen that under the Hanafi law the wakf of Government securities, shares In companies, debentures, and other stock, Is perfectly lawful and valid. The doubt, which one or two of the ancient Hanafi doctors had expressed as to the validity of the wakf of certain kinds of moveable property in contra-distinction to certain other things, was the outcome of primitive and archaic conditions of society, and was founded on the notion that, as perpetuity was essential to the validity of wakfs it could hardly be secured by the dedication of moveable things generally. But as the Musalman communities progressed in material civilization and commerce developed, it came to be recognized universally that the wakf of everything which forms the subject of business transactions, or which it is customary in any particular locality to do so, is valid.

9. It will be observed that investment in [Government securities and shares in companies, etc. is a common form of investment recognized in the present times. Such investments yield regular income which loan be expended on the maintenance of the objects of the wakf. If, on the other hand, a sum of money itself is dedicated and it is to be spent on the maintenance of the objects of the wakf it will be exhausted before long and it cannot be said that the property dedicated is of reasonably permanent character as required by law : see 'Wilson's Mohammadan Law, para. 318. The position might have been different if the appropriator had directed the money to be invested in immovable property or in Government securities, etc. There is another aspect of the question which affects the validity of the wakf. The dower debt was no doubt due to the lady but it was at the option of the residuaries to pay that sum or not. It was not a tangible property available to Mt. Fahimo and she certainly had no control over it. The recovery of that sum was problematical and any dedication of such property could not be recognized under the accepted principles of Mahomedan law. In Kadir Ibrahim Rowther v. Mahammad Rahumadalla Rowther (1910) 33 Mad. 118, it was held that dedication of a decree was invalid. This principle will apply with greater force to the present case. In our judgment the rule of law laid down in Abu Sayid Khan v. Bakar Ali (1902) 24 All. 190 mentioned above is not applicable to the present case at all.

10. It is conceded by the parties that the mutwalli is not one of the heirs of Mt. Fahimo and therefore is not entitled to claim the payment of dower debt as a condition precedent to the delivery of possession of property in dispute. In the present case we are not called upon to decide whether the dower debt is recoverable by the heirs or not. Unless we hold that the dedication of the dower money is a valid wakf the mutwalli will not be entitled to claim payment of the same. We have already held that the wakf of the three-fourth share left by Sh. Nasru was illegal. In the circumstances in our opinion the plaintiffs can recover possession of the same without paying the proportionate amount of dower debt to the mutwalli. For the reasons given above we allow the appeal, modify the decree of the Court below and direct that the plaintiffs' suit for possession over three-fourth of the property left by Sh. Nasru be decreed. The appellants will be entitled to their costs from the contesting defendant throughout.


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