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Mazhar HusaIn Khan Vs. Abdul Hadi Khan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.753
AppellantMazhar HusaIn Khan
RespondentAbdul Hadi Khan
Excerpt:
muhammadan law - waqf--expenses of fatiha--lighting a mosque--salary of hafiz--charitable object. - - 5. the suit was not instituted until the 22nd of january, 1909, that is, nearly three years after the death of barkat-un-nissa, which took place on the 17th of june, 1906. it is not denied that barkat-un-nissa was in possession, from the death of her husband up to the time of her death, that is, upwards of 30 years, but the contention of the plaintiff-respondent is that she was put into possession for the purpose of satisfying her dower, and that the dower having been satisfied out of the usufruct, her husband's heirs are entitled to recover the property. it also held that the objects of the waqf were valid, but that inasmuch as barkat-un- nissa was in possession and enjoyment of the.....john stanley, c.j.1. the plaintiff in the suit out of which this appeal has arisen claims possession of 286 out of 512 sihams of zemindari property situate in the villages of mawaya and surahi in the district of shahjahanpur and also mesne profits. the property claimed belonged to muhammad altaf ali khan, the cousin of the plaintiff, who died so far back as the 27th of november, 1875. he had no issue, and on his death the following were his heirs: abdulla khan, father of the plaintiff, husain raza khan, uncle of the plaintiff, and musammat barkat-un-nissa, his widow, who was step-sister of the plaintiff. the dower of musammat barkat-un-nissa is said to have been rs. 1,25,000. on the death of her husband she entered into possession of his property, and amongst others the villages of mawaya.....
Judgment:

John Stanley, C.J.

1. The plaintiff in the suit out of which this appeal has arisen claims possession of 286 out of 512 sihams of zemindari property situate in the villages of Mawaya and Surahi in the District of Shahjahanpur and also mesne profits. The property claimed belonged to Muhammad Altaf Ali Khan, the cousin of the plaintiff, who died so far back as the 27th of November, 1875. He had no issue, and on his death the following were his heirs: Abdulla Khan, father of the plaintiff, Husain Raza Khan, uncle of the plaintiff, and Musammat Barkat-un-nissa, his widow, who was step-sister of the plaintiff. The dower of Musammat Barkat-un-nissa is said to have been Rs. 1,25,000. On the death of her husband she entered into possession of his property, and amongst others the villages of Mawaya and Surahi. On the 21st of, June, 1898, Musammat Barkat-un-nissa executed a deed of endowment of the lands situate in these villages and appointed herself mutwalli during her life, and after her death she directed that her sister's son, the defendant, Mazhar Husain Khan, should be mutwalli of the property in mauza Mawaya and Muhammad Nurul Haq of the property in the village of Surahi. Abdulla Khan, father of the plaintiff, died on the 27th of May, 1880, leaving Abdul Baqi Khan, brother of the plaintiff, Musammat Muhammadi Begam, mother of the plaintiff, Musammats Barkat-un-nissa, and Naim-un-nissa, his daughters, together with the plaintiff as his heirs. Husain Raza Khan, uncle of the plaintiff, died during the life-time of Barkat-un-nissa, leaving Abdul Baqi Khan, brother of the plaintiff, Riazul Raza Khan and Ali Raza Khan, his nephews, Musammat Moti Bagam, his widow, and the plaintiff as his heirs. On the 2nd of February, 1906, and 5th of June, 1908, Abdul Baqi Khan transferred to the plaintiff his interest in the estate of his father and of Barkat-un-nissa; and Muhammadi Begam, the mother of the plaintiff, also transferred to him her interest by a deed of sale of the 4th of June, 1908. Thus the plaintiff claims to be the owner of 286 sihams of the estate of Muhammad Altaf Ali Khan. In his plaint he impeached the deed of waqf of the 21st of June, 1898, alleging that Musammat Barkat-un-nissa had no power to make the endowment, and that it was fictitious and colourable and was executed under undue influence. It was contended on behalf of the plaintiff that Barkat-un-nissa entered into possession of her husband's property for the purpose of satisfying her dower thereout and that she was, therefore, incompetent to make a waqf of it.

2. The Court below held that Barkat-un-nissa had been during her life in proprietary possession of one-fourth of her husband's properties by light of inheritance, and that in respect of this one fourth share she was competent to make a waqf. As to the remaining three-fourths it held that her, possession was in lieu of dower, and that she had no right to dispose of her interest in this share of, the property. It held that the waqf was valid as to one-fourth of the properties and gave a decree to the plaintiff for mesne profits.

3. This appeal was preferred and the main contention advanced before us on behalf of the appellant is that Barkat-un-nissa's possession of the entire, estate of her husband was proprietary and not to any extent in lieu of dower, and that the waqfnama was valid and effectual as regards all the property comprised in it.

4. A cross-appeal, namely, First Appeal No. 315 of 1909, was filed by Abdul Hadi Khan, and in that appeal he disputes the correctness of the finding of the Court below in regard to the validity of the waqf contending that the objects for which the waqf was created are not proper objects of waqf.

5. The suit was not instituted until the 22nd of January, 1909, that is, nearly three years after the death of Barkat-un-nissa, which took place on the 17th of June, 1906. It is not denied that Barkat-un-nissa was in possession, from the death of her husband up to the time of her death, that is, upwards of 30 years, but the contention of the plaintiff-respondent is that she was put into possession for the purpose of satisfying her dower, and that the dower having been satisfied out of the usufruct, her husband's heirs are entitled to recover the property.

6. The defendant-appellant met this case by production of a number of documents which, according to the arguments of his learned Counsel, abundantly show that from the death of her husband the possession of Barkat-un-nissa of his property was adverse and proprietary, and that the members of the family treated her ownership as proprietary. I shall deal with these documents.

7. [His Lordship, after dealing with the documentary evidence proceeded as follows:] The plaintiff, as we have said, impeached this deed of endowment as being fictitious and executed under undue pressure and influence. There is no evidence worthy of the name to indicate that any undue influence was exercised over Barkat-un-nissa or pressure brought to bear upon her in the matter of the waqf. The Court below held that Barkat-un-nissa endowed the property of her own free will without any undue pressure being brought to bear upon her, and in this I agree with the Court below.

It also held that the objects of the waqf were valid, but that inasmuch as Barkat-un- nissa was in possession and enjoyment of the property merely in lieu of dower, the waqf was only good as regards the one-fourth share to which she was entitled as an heir of her husband. Now the expenses directed to be met out of the property by the deed of waqf include, as I have' said, the expenses of the fatiha ceremony of private individuals including the fatiha of the executant. There is also a provision of Rs. 60 annually as a salary for Hafiz and readers of the Quran. It has been contended that these are not proper objects of waqf. There is also a direction that a certain annual sum should be applied in the expenses of lighting a mosque, offerings on the occasion of the celebration of the birth of the Prophet and offerings to the great Piran Pir, and on the tenth day of Muharram and Chehlum; also for the salary of the head teacher of a school established by the executant and the salary of a Hafiz and servant employed in the school and the lighting and carpeting of the school. As to these last mentioned objects they appear to me to be clearly valid objects of waqf. But as regards the expenses of fatiha ceremonies and the salary of Hafiz and readers of the Quran I am disposed to think that these are not proper objects of waqf. Generally speaking, a waqf is valid if it be for pious or charitable purposes, as for instance, construction of bridges and musjids, the building of a madrasa, providing books for a library, the building and maintaining of mosques, the providing of shrouds for the dead, and the providing and maintenance of burial grounds. As regards a waqf for fatiha in its popular sense, my brother Karamat Hussain has expressed the view that it is neither religious nor charitable in the sense of charity for the benefit of the poor, which they may claim as a matter of right. If he be right in his views, a waqf for a fatiha cannot be a valid waqf. I quote from my learned brother some of his observations on the fatiha ceremony. After explaining what the orthodox fatiha ceremony is, he remarks:

The superstitious tendency of the human mind has added to it (i.e. the fatiha ceremony) innovations which are not sanctioned by the Muhammadan Law and seem to have been borrowed from non-Moslem communities and cannot possibly be regarded as part and parcel of Islam. They, in fact, are stains on the purity of Islam. One of them with which I am concerned is that during the first year of a Muhammadan's death his fatiha ceremony is performed on the third day of his death (sometimes the second day), tenth day, the twentieth day, fortieth day, and so on After the first year it is performed, if performed at all, annually. There is, however, nothing in the Muhammadan Law to sanction such a periodical fatiha. Another innovation is, that instead of reading the Surat Fatiha and offering the reward to the deceased on the fatiha day some food is prepared, a priest or a Maulvi is asked to repeat the Surat Fatiha on the food which is distributed among the relatives and friends of the person who spent the money for the preparation of the food. Some of it sometimes, as a matter of usage, is given to the poor also, but they have no claim to it as a matter of right.

8. He later on observes that:

From what has been said it follows that the fatiha ceremony in its popular sense means the preparation of food or sweets at the death anniversary of a deceased Muhammadan which, after the recital of a fatiha, is distributed among the friends and the relations of the person who spent the money over it without any regard to the poverty of the recipients. No one who is familiar with the Hanafi Law can say that a waqf for spending the income of endowed property in preparing food which after the reading of the Surat Fatiha over it is given to people without any regard to their poverty is a waqf for a religious or charitable purpose. The preparation of food and the reading of the Surat Fatiha over it cannot possibly be a religious act and the giving of such food to persons who are not poor and who cannot claim it as a matter of right is no charity in the sense in which that term is used in the case-law of waqf.

9. Then he refers to the case of Kaleloola Sahib v. Nuseer-ud-Deen 18 M. 201 as supporting his view that a waqf for the annual fatihat ceremonies of an ordinary deceased Muhammadan, although those ceremonies necessarily involve the distribution of charity, is illusory and void Fakhr-ud- din Shah v. Kifayatullah 7 A.L.J. 1095 : 8 Ind. Cas. 578.

10. The view so stated seems to me to be in accordance with the tenets of Muhammadan schools. Fatiha ceremonies do not seem to fall within any definition of a charitable or religious use and tend to no public advantage. They closely resemble masses for the repose of the souls of deceased persons which have been held in Ireland to be contrary to public policy and invalid. Then, as regards the Rs. 60 set apart annually for the salary for Hafiz and readers of the Quran, it also seems to me that this is not a proper object of waqf. The reading of the Quran in private serves no purpose of public utility and comes within the principle of the Muhammadan Law applicable to fatiha ceremonies. If the expenses of fatihat and the salary of Hafiz and readers of the Quran, directed to be discharged annually in the deed of waqf, are eliminated from the endowment as being invalid, it seems to me to follow that the portion of the endowed property devoted to these expenses must be exempted from the operation of the waqf. The general dedication of the villages in the name of God, in my opinion, would not be sufficient to render the waqf valid in respect of so much of the property as has been dedicated expressly for specific objects which are not proper objects of waqf. Income to the extent of about Rs. 200 a year has been, as I am disposed to hold, directed to be applied for purposes which are not valid. The provision in the document that the mutwallis shall be competent to apply the income in other charitable expenses if the income of the endowed property permit the same to be done, would not, I think, allow of their so applying the income expressly devoted to the expenses of fatiha and salary of Hafiz and readers. This provision appears to me to be intended only to meet a case in which the annual income exceeds the amount required for the expenses specifically mentioned in the waqfnama. If the dedication of the property for the fatiha and other ceremonies in question are valid, then the mutwalli is bound to apply the income to meet these expenses and not other expenses. If my view as to this be correct, so much of the property as represents the income directed to be applied for objects which are not legal should be treated as unendowed property. When immoveable property is given for mixed purposes, partly valid and partly invalid, the beneficial interest in the invalid portion passes to the heirs. I do not understand that the Privy Council have lard dawn any contrary ruling. What their Lordships laid down in Abul Fata Mohamed v. Rasamaya Dhur 22 C. 619 : 22 I.A. 76 was that provision for the dedicator's family oat of appropriated property might be consistent with the making of a valid waqf where the appropriation is substantially for a pious or charitable purpose. They did not hold that where property is dedicated partly for invalid purposes and substantially for valid objects, the portion appropriated for invalid purposes should not go to the heirs. In view, however, of the rulings which are referred to in the judgment of my brother Banerji which I have had an opportunity of reading, particularly the judgment of my brothers Richards and Griffin in Bibajan v. Kalb Husain 6 A.L.J. 115 : 31 A. 136 : 1 Ind. Cas. 763 in which they held' that the expenses of fatiha, barsi, et cetera, of the members of the waqif's family were legitimate objects of waqf, I do not feel justified in recording a dissentient judgment on this question.

11. It remains to determine whether Barkat-un-nissa was in possession of the endowed property at the date of the execution of the deed of waqf merely in lieu of dower. It appears to me idle to contend that she was so in possession. The documents to which I have referred, show that from the death of her husband she set up a claim to possession of the property as its absolute owner. There is nothing to show that either she or the other heirs of her husband regarded her possession as referable to dower and there is nothing to indicate that she was put into possession in lieu of her dower.

12. There is only one piece of evidence which, if at all, supports the plaintiff's contention in this respect. In a lease of certain villages which was executed by Barkat-un-nissa on the 14th of December, 1881, there is a statement that the property, the subject matter of the lease, was owned by her without any one's partnership by virtue of its being her property and 'by virtue of her dower.' This, it is contended, is an admission by Barkat-un-nissa that she was in possession in lieu of her dower, but I am unable to accede to this contention. In the first place, we do not know the circumstances under which this lease was prepared. It does not appear that it was ever read over or explained to Barkat-un-nissa, and it is quite possible that the words in reference to dower were inserted without her knowledge. The document was signed by the pen of her nephew, Riazul Raza, and was witnessed by, amongst others, Hasan Raza Khan, the brother of Altaf Ali Khan. She was identified before the Commissioner by Hasan Raza Khan and Riazul Raza Khan, and it does not appear from the registration endorsement that the document was read over or explained to her. Moreover, the words 'by virtue of my dower' (bazary aden-mahar) are equivocal. They do not necessarily mean that she was in possession in satisfaction of her dower. The property is described as being owned by the Musammat by virtue of its being her property and by virtue of her dower, and the expression would be applicable if the property had been given to her by her husband in satisfaction of her dower, as is not uncommon. I think that the learned Subordinate Judge attached too much weight to the recital in this document in view of the fact that Barkat-un-nissa dealt with the property as her own absolute property for over 30 years, and that none of the heirs of her husband ever prior to this litigation set up the case that she was not in full proprietary possession of it, but on the contrary showed by their acts and conduct that they recognised her ownership. I am of opinion that the decision of the Court below is erroneous. I, therefore, concur in the order proposed by my brother Banerji.

Banerji, J.

13. Two questions have to be determined in this appeal: first, what was the nature of the possession of Barkat-un-nissa in respect of the property left by her husband, Altaf Ali Khan, at his death? and, second, whether the waqf made by her on 21st of June, 1898, is valid or not

14. As regards the first question the allegation of the plaintiff is that Barkat-un-nissa was in possession of her husband's property for the realisation of her dower. The Court below has held that she was in possession of one-fourth of the property in her own right as heir to her husband and of the remainder in (sic) of her dower. It is contended that this latter finding is opposed to the evidence on the record and that Barkat-un-nissa was in adverse proprietary possession. The weight of evidence, in my opinion, supports this contention. The evidence on the point is set forth in detail in the judgment of the learned Chief Justice, and it is unnecessary to recapitulate it. After the death of Altaf Ali Khan the name of Barkat-un-nissa was recorded in the revenue papers as his heir under the management of the plaintiff's father, Abdulla Khan, who was one of the heirs of Altaf Ali Khan. In the mutation proceedings no mention was made of her dower. Subsequently, she obtained partition of a portion of her husband's property as the owner thereof and in partition proceedings, held at the instance of Ali Raza, she was made a party as one of the proprietors. Later on, a reference was made to arbitration, and under the award of the arbitrator she was given her husband's share. After her death in 1906 the plaintiff and his brothers divided her property, and in all these proceedings she was treated as absolute owner and no reference was made to her dower, and it was never alleged that she was in possession for the realization of her dower. The learned Subordinate Judge has given undue weight to a recital contained in a lease granted by her in 1881, as pointed out by the learned Chief Justice. She was alive for more than thirty years after her husband's death and the total amount of her dower was realized from the usufruct long before her death. Had she been in possession for her dower, the heirs of her husband would undoubtedly have taken back the property from her possession. If it be assumed that her dower was due, that fact alone would not raise any presumption in favour of the contention that her possession was in lieu of her dower. A Muhammadan widow may, no doubt, be allowed to take possession for the realization of her dower, but it does not follow from the mere fact of her taking possession that she did so for her dower. For these and other reasons I fully agree with the learned Chief Justice in holding that Barkat-un-nissa was in adverse proprietary possession after her husband's death.

15. In regard to the second question, namely, that of the validity or otherwise of the waqf the 'Court below has held it to be valid in respect of Barkat-un-nissa's own 'one-fourth share. The correctness of this conclusion is impugned in the connected First Appeal No. 315 of 1909, and it is urged that some of the objects of the waqf are not valid. In my judgment this contention has no force. The deed of waqf contains the following, recital:

I, while in a sound state of body and mind and of my own free will and accord, have made an endowment of the villages, lands, groves and houses detailed above, in the name of God. I have divested myself of possession of the property and have endowed it in the name of God.

16. She then declares herself to be the first mutwalli and directs that after her death two mutwallis would be appointed one for each of the two villages which are the subject of the waqf. The document proceeds to give a detail of the expenses to be incurred and the duties to be performed by the mutwallis and among these details are:

17. (1) The expenses of the annual fatiha of the waqif, of her husband and of other members of her family and of two spiritual guides; (2) annual expenses of burning lamps in a mosque; (3) the salary of Hafiz and readers of the Quran.

18. It is in regard to these expenses that the plaintiff urges that they are unlawful. The details of each item of expenditure under the above heads are given in the judgment of the learned Subordinate Judge, and I consider it unnecessary to repeat them here. They amount to Rs. 212 out of a total of Rs. 527.

19. According to the well-known decisions of their Lordships of the Privy Council, a valid waqf is created if the owner of the property, the subject of the waqf, divests himself of it and appropriates it to religious or charitable purposes. Their Lordships held that 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. Mahomed Ahsanulla Chowdhry v. Amar Chand Kundu 17 C. 498 : 17 I.A. 28. In this case the maker of the waqf completely divested herself of the ownership of the property. The question is whether there was a substantial dedication for religious or charitable purposes. It is said that a provision for the fatiha ceremony of the appropriator and members of her family is not a religious or charitable object, and in support of this contention the dictum of our learned colleague, Karamat Husain, J., in Fakhr-ud-din Shah v. Kifayat-ul-lah 7 A.L.J. 1095 : 8 Ind. Cas. 578 is relied upon. In the view taken by the Bench which heard an appeal under the Letters Patent from the judgment of our learned brother the question of the validity of a, waqf for fatiha ceremonies did not arise. However, any expression of opinion by our learned colleague on a question of Muhammadan Law is entitled to great weight. He holds that a waqf for the performance of fatiha ceremonies is invalid, not because it is so under the strict rules of Mahammadan Law, but because, in his opinion, fatiha is not a charity in the sense in which that term is used in the case-law of waqf.' He observes in the course of his judgment that the word charitable' has no doubt a wider significance in Musalmau Law. But now, under the rulings of the Privy Council, charity' means charity to the poor.' I am unable to agree with my learned brother in the view which he takes of the decisions of their Lordships of the Privy Council. All that their Lordships lay down is that there must be a substantial and not a merely colourable dedication of the property, and that the religious and 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. See Abul Fata Mohamed v. Rasamaya Dhar 22 C. 619 : 22 I.A. 76. They nowhere held that no waqf would be valid unless its object is charity to the poor only. For instance, the establishment of a school or a caravanserai, which are availed of both by the rich and the poor, are admittedly objects of a valid waqf. Fatiha, as our learned colleague points out, is the offering up of prayers to the Almighty for the remission of sins and the acceptance into heaven of the individual in whose name it is desired.' This undoubtedly is a religious act, and expenses for such an act cannot but be regarded as expenses for a religious purpose. The weight of authority is in favour of the view that a waqf for the performance of fatiha ceremonies of the donor and of the members of his family is valid. In Luchmiput Singh v. Amir Alum 9 C. 176 : 12 C.L.R. 22 a waqf for fatiha at the tomb of members of the dedicator's family was held by the Calcutta. High Court to be valid. In Phul Chand v. Akbar Yar Khan 19 A. 211 a Bench of this Court held that a waqf for the performance of fatiha ceremonies which involve, according to the custom of this country, the distribution of alms is a good waqf. Similarly, in the recent case of Bibajan v. Kalb Husain 6 A.L.J. 115 : 31 A. 136 : 1 Ind. Cas. 763 Richards and Griffin, JJ., held that expenses of the death anniversaries (fatiha, barsi, etc.) of the members of the waqifs family are legitimate objects of waqf. Original authorities of Muhammadan Law were cited in the argument in support of this view and are set forth on page 7 of the Appendix to the report of the case. The only case in which a contrary view was held is that of Kaleloola Sahib v. Nuseer-ud-din Sahib 18 M. 201 which was followed by Karamat Husain, J., in the case to which I have already referred. I have expressed my dissent from the view of Collins, C.J., and Parker, J., in that case in my decision in Sayed Mustafa v. Amina Begam 2 A.L.J. 519 and I see no reason to alter my opinion. That case was, it is true, followed by Tayabji, J., in Zooleka Bibi v. Syed Zynulabdin 6 Bom. L.R. 1058 but not on the question of fatiha. Tayabji, J., approved of that ruling in so far as it laid down that a valid dedication could not be made for the maintenance of a private tomb, but he expressed no opinion on the question of fatiha. That question did not also arise in Mhammad Munawar Ali v. Rasulan Bibi 21 A. 329. Referring to the ruling of the Appellate Court in Kaleloola Sahib v. Nuseer-ud-din Sahib 18 M. 201 Mr. Amir Ali remarks(Muhammadan Law, Vol. I, p. 390, 3rd Edition) that' under Muhammadan Law there could not be the faintest doubt that the waqf in this case was absolutely valid.' Among the objects of the waqf in that case were the salaries of repeaters of the Quran, and the expenses of the annual fatiha of the deceased, and as to all these Mr. Amir Ali is of opinion that they are valid objects of waqf. No authority was referred to by the learned Judges of the Madras High Court for holding a contrary opinion, and I see no reason to accept it. I hold that fatiha expenses are a valid object of waqf.

20. As for the expenses of burning lamps in a mosque and the salary of Hafiz and readers of the Quran they are, according to Mr. Amir Ali, valid objects of waqf. That the lighting of mosques and the reading of the Quran are meritorious acts cannot admit of any doubt. The authority cited on pages 5 and 6 of the Appendix to the report of the case of Bibajan v. Kalb Husain 6 A.L.J. 115 : 31 A. 136 : 1 Ind. Cas. 763 shows that what Abu Hanifa considered as repugnant was the reading of the Quran at graves, but that the payment, of remuneration to readers or repeaters of Quran generally is not illegal or improper, I may observe that on the above questions no authorities were cited at the hearing by the learned Advocate for the plaintiff.

21. Furthermore, the deed of waqf in this case gives full power to the mutwalli to defray 'other necessary charitable expenses if the income of the endowed property permits the same to be done.' If therefore, the objects referred to above are not proper objects of waqf the mutwalli has the power to devote the income to other charitable objects which are not open to objection. I have pointed out above that the total amount of expenses mentioned in the deed of waqf is Rs. 527, out of which exception is taken to items amounting to Rs. 212 only. There was, therefore, a substantial dedication of the property to religious or charitable purposes within the meaning of the rulings of their Lordships of the Privy Council and the waqf is valid. For the above reasons I am of opinion that the decision of the Court below on this point is correct.

22. The result is that, in my judgment, the plaintiff's suit should be dismissed in its entirety, the appeal of the defendant (No. 256 of 1909) should be allowed and the plaintiff's appeal No. 315 of 1609 should be dismissed. I would order accordingly.

23. The order of the Court is that this appeal is allowed, the decree of the Court below is set aside and the plaintiff's suit is dismissed with costs in this Court and in the Court below.


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