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irfan Ali and ors. Vs. Official Receiver and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1930All837
Appellantirfan Ali and ors.
RespondentOfficial Receiver and ors.
Excerpt:
.....benefit either for the poor or for any religious or pious object. he held that the use of the word 'wakf' by mubarak ali was, in itself, sufficient indication of his mind, namely, he meant that on the extinction of the line of the beneficiaries the property was to go for the benefit of the poor. 7. the sole point that we have to decide in this appeal is whether the document contained by implication a reservation of the ultimate benefit in favour of either the poor or for any religious or pious or other charitable purpose of a permanent character. under the well-known rules of interpretation the importation of extraneous matters would be forbidden, unless surrounding circumstances are required to show in what manner the language of the document is related to existing facts, as was..........but they would not be in a position to transfer the same, it being treated as a part of the wakf property. by para. 7 mubarak ali provided as followsafter the payment of the aforesaid stipends out of the two-thirds of the income, the balance, be whatever it may, will be reserved and applied in multiplying the property. it will be lawful for the trustees to make an addition to the monthly stipends out of the balance in their hands according as it may be advisable when the number of the children of the stipendiaries grows larger.4. by para. 8 the trustees were made incompetent to transfer the wakf property. para. 9 declared that in cases in which the trustees were not unanimous on any point, the point for decision was to be decided by majority of votes. para. 10 enjoined on the.....
Judgment:

Mukerji, J.

1. This is a Letters Patent appeal which has arisen owing to a difference of opinion between two learned Judges before whom the First Appeal No. 247 of 1925 came for decision. The difference of opinion has arisen only on a point of law, and therefore it would not be necessary to state the facts in detail. Briefly, they are these. One Mubarak Ali died possessed of certain immovable property of considerable value. He died on 2nd January 1914. Before his death he executed several deeds. One was a document described as a will, which was executed on 22nd June 1909, another was a codicil to that will executed on 3rd January 1911, and lastly he executed the document which is in dispute before us. This purported to be a deed of wakf created by means of a will. It was executed on 23rd October 1913.

2. By the document of 23rd October 1913 Mubarak Ali provided (see p. 29 of the printed book) that he would remain in possession of his property during his lifetime and would support himself, his wife and the members of his family. Then he proceeded to appoint certain gentlemen mentioned in the deed, who were going to be the trustees of the wakf that he was going to create. He also provided for the filling up of vacancies, if any, among the trustees. Para. 4 of the wakf deed provides that the trustees or mutawallis would pay the Government revenue payable on the property, meet the expenses of repairs and other expenses required for the maintenance of the property, pay the wages of the employees (evidently the men who were to manage the property, agents and others) out of the one-third income of the entire property. If a balance was left, it was to be employed by the mutawallis

on good acts recognized as such by the Mahomadan law (as for instance fatiha, offerings for elders, education and marriage of children etc.)

3. As regards the remaining two-thirds of the property, Mubarak Ali provided that out of the income of the property certain stipends should be allowed to his sons, daughters and the grandson. This was the subject-matter of the same para. 4. By para. 5 Mubarak Ali declared that the holders of the stipends should not be entitled to transfer them, and the stipends should not be liable to attachment or sale in any decree. By para. 6 the dedicator declared that the dwelling house was to be occupied by the stipend-holders, but they would not be in a position to transfer the same, it being treated as a part of the wakf property. By para. 7 Mubarak Ali provided as follows

After the payment of the aforesaid stipends out of the two-thirds of the income, the balance, be whatever it may, will be reserved and applied in multiplying the property. It will be lawful for the trustees to make an addition to the monthly stipends out of the balance in their hands according as it may be advisable when the number of the children of the stipendiaries grows larger.

4. By para. 8 the trustees were made incompetent to transfer the wakf property. Para. 9 declared that in cases in which the trustees were not unanimous on any point, the point for decision was to be decided by majority of votes. Para. 10 enjoined on the trustees the duty of keeping regular accounts. By para. 11 Mubarak Ali declared that if any of the terms of the wakf that he was going to create were violated, it would be competent to the mutawallis or to the beneficiaries to take action to remedy the violation. He however emphasized the fact that the wakf that he was creating was for the family and not for the public and the public had nothing to do with it.

5. It appears that one of the sons of Mubarak Ali, namely Syed Ali Ahmad, was adjudicated an insolvent in the lifetime of Mubarak Ali himself. On the death of Mubarak Ali, the Official Receiver was induced by two of the creditors of Ali Ahmad to attach a part of the wakf property. Thereupon the mutawallis, after taking the permission of the insolvency Court, instituted the suit out of which this appeal has arisen, with the object of obtaining a declaration that the property was wakf and could not be touched by the Official Receiver for the benefit of the creditors of Ali Ahmad.

6. The Court of first instance dismissed the suit, holding that the wakf was not a valid one. We need not go over the grounds that were given by the learned Subordinate Judge; they have not found favour with the two learned Judges before whom the appeal came, initially. In this Court, both the learned Judges were of opinion that the deed of wakf did not indicate expressly that there was a reservation of the ultimate benefit either for the poor or for any religious or pious object. One of the learned Judges was of opinion that the document did not even contain by implication such a reservation. The other learned Judge was of the contrary opinion. He held that the use of the word 'wakf' by Mubarak Ali was, in itself, sufficient indication of his mind, namely, he meant that on the extinction of the line of the beneficiaries the property was to go for the benefit of the poor. It was owing to this difference of opinion that the appeal was dismissed and the decree of the learned Subordinate Judge was affirmed.

7. The sole point that we have to decide in this appeal is whether the document contained by implication a reservation of the ultimate benefit in favour of either the poor or for any religious or pious or other charitable purpose of a permanent character.

8. We do not think that it is expedient or even desirable to look into the earlier documents executed by Mubarak Ali in order that we might read his mind in the document of 1913. The circumstances of the family and the fact that Ali Ahmad had become an insolvent incapable of paying his own debt are also matters which should not, strictly speaking, be taken into consideration in interpreting a document, which is otherwise capable of bearing a clear meaning. Under the well-known rules of interpretation the importation of extraneous matters would be forbidden, unless surrounding circumstances are required to show in what manner the language of the document is related to existing facts, as was done in the Privy Council case of Narasingherji v. Garu A.I.R. 1924 P.C. 226. As we have said, it is common ground that the document of 1913 does not contain any express reservation in favour of any religious, pious or charitable purpose of a permanent character. The general question therefore is whether the use of the word 'wakf' by Mubarak Ali necessarily implies such a reservation in favour of the poor as to make the document a valid one under the law.

9. The learned Judges, who heard the appeal in the first instance, have extensively quoted from text-books and decisions of various Courts including the decisions of their Lordships of the Privy Council to show whether the mere use of the word 'wakf' necessarily implied a gift to the poor, ultimately. The inquiry of the two learned Judges has resulted in different and contrary results. It appears to us that the legislature having passed an Act, relating to the subject, it would not be fruitful of any good to start a research into the previous state of the law as it existed before the legislature added one more Act to the book: see Ramanandi Kuar v. Kalawati Kuar A.I.R. 1928 P.C. 2.

10. The Musalman Wakf Validating Act (Act 6 of 1913), gives a definition of the word 'wakf.' It is defined as follows:

Wakf means the permanent dedication by a person professing the Musalman faith of any property for any purpose recognized by the Mahomedan law as religious, pious or charitable.

11. Then in Section 3 the law provides that it shall be lawful for any person professing the Musalman faith to create a 'wakf' which in all other respects is in accordance with the provisions of the Mahomedan law for certain purposes. One of the purposes mentioned there is

the maintenance and support wholly or partially of his (dedicator's) family, children or descendants.

12. According to this law, namely Act. 6 of 1913, it was declared competent to a Musalman to make a 'wakf' for the benefit of his family and descendants. The law however goes on to provide that the ultimate benefit in such a case expressly or impliedly, is to be reserved for any purpose recognized by the Mahomedan law, as religious or pious or charitable purpose, of a permanent character.

13. To obviate all disputes as to whether a particular dedication was good or bad under the Mahomedan law, a rule was enacted. It must therefore follow that if a particular dedication does not answer to the rule, it must be treated as invalid. It may be that, on a correct interpretation of the Mahomedan law such a dedication would be quite good. But there being a difference of opinion on that point, the legislature desire to settle the matter, once for all, and it would do to say thereafter that, on a true interpretation of the Mahomedan law, a document creates a good wakf, although it cannot create a good wakf under Act 6 of 1913. When a definite rule of Mahomedan law was laid down by the legislature, it must follow that it overruled certain interpretations which did not find favour with the legislature. This can be the only meaning of passing a law by the legislature. This being the object of the legislature, and the language employed being clear, a document cannot be valid as creating a good wakf unless and until it contains at least an implied reservation that the ultimate benefit from the property is to go for a religious, pious or charitable purpose of a permanent character. If this view be correct, can it be said, with any justification, that the mere use of the word 'wakf' will operate to make the document a valid dedication, in law, which means, again, the Act 6 of 1913. We are emphatically of opinion that this cannot be so. The word 'wakf' has been used in the Act itself, (Ex. 3), and it has been given a definite meaning. The word has not been used by the legislature as meaning a dedication for the benefit of the poor alone. It includes a dedication for religious and pious objects as well. Some authorities have been quoted before us which go to show that where the word ''wakf' has been used in a deed, the ultimate benefit from the property goes to the poor on the extinction of the immediate object of the dedication. This would mean that the word 'wakf' has been used under the ordinary Mahomedan law, in a restricted sense. The legislature however has given it a much larger sense. We are therefore of opinion that a mere use of the word 'wakf,' in a deed, after the passing of the Act 6 of 1913, cannot necessarily imply a dedication to the poor. The ultimate object of the wakf has to be implied by use of other words.

14. It is not necessary to emphasize that, as the result of the provision of para. 7 of the wakf deed, there would be an accumulation from the property in the case of an extinction of the line of Mubarak Ali. The dedicator did not at all consider what was going to happen if his descendants died out, in course of time. As the stipends ceased to be paid the trustees would have in their hands the total income of the two-thirds of the property, and the only thing which they could do would be to purchase further property with the income. The result would be an accumulation of property without any definite object which is countenanced neither by the Mahomedan law nor by the Anglo-Indian law, namely Section 18, T.P. Act. In our opinion, the wakf which Mubarak Ali purported to create was not valid under the law, and the decision of the Court below must be affirmed. In the result, we dismiss this appeal with costs.


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