1. This is a first appeal by Mt. Alimunnisa Bibi, the plaintiff, against a decree of the Civil Judge of Azamgarh dismissing her suit asking for possession of 7/88 sehams share of the estate of her deceased father Alauddin in Schedules A and B, the zamindari property, and Schedule 0, houses. The father, Alauddin, died on 5th February 1932. The defendants comprise the two sons of Alauddin, Abdur Rahman and Abdur Rahim, who are of full age, and minor sons and daughters and the two wives of Alauddin, defendant 7, Mt. Amina Bibi, and defendant 8, Mt. Sakina Bibi, who was the mother of the plaintiff. The mother of the plaintiff naturally supported the claim of the plaintiff but on behalf of the other defendants the claim was contested on the ground that the zamindari property in Schedule A had been the subject of a wakf by Saheb AH Khan, the great-grandfather of the plaintiff, on 4th February 1864, by the document printed on pp. 91 to 94, and that the property in lists B and C had been the subject of a wakf by Alauddin, the father of the plaintiff, on 2nd September 1916, pp. 95 to 103. The Court below held that these two deeds of wakf were genuine and had been carried out. No mention had been made of the first deed of wakf in the plaint but in regard to the second it was alleged that the deed of wakf of 1916 was one which was fictitious and had not been intended to be carried out and that it was executed by Alauddin because his wife Mt. Sakina Bibi had sent him a registered notice on 25th August 1916 and on 1st September 1916 she had filed a suit claiming her dower in form a pauperis. The question of the validity of these two deeds of wakf has been argued before us in appeal and these are the only grounds on which the appeal has been argued. The document beginning on p. 91 of 4th February 1864 is a registered document and has been proved by a certified copy. Learned Counsel argues that a certified copy was not admissible as there was no statement of any witness on the record that the original had been lost. This is incorrect because on page 35, line 15 it is stated by defendant 1, Abdur Rahman, in evidence:
The wakfnama executed by Saheb Ali Khan could not be found as also the original wakfnama executed by my father.
2. That the original document could not be found is not surprising after a lapse of 70 years. The certified copy obtained from the registration office is therefore admissible in evidence. This point, we may note, was not taken in the Court below. Much argument has been addressed to us in regard, to the document of 4th February 1864 and learned Counsel for appellant argued firstly that the document was a mere deed of partition and not a deed of wakf at all. This argument is founded on the words on page 91, line 22:
I...have divided the entire milak land owned and possessed by me as given below between my heirs. I have set apart a portion of my property for charitable purposes.
3. We consider that these words mean that part of the property was set apart and what was divided was the remainder. The document therefore is a partition deed so far as the remainder is concerned but that does not prevent it being a deed of wakf so far as the portion for charitable purposes is concerned. The next argument addressed to us was that the document only provided for the dedication of the profits of certain villages to be used for religious and charitable purposes and did not provide for the villages themselves to be made into wakf property. This is purely a question of construction of the document. The following clause is important:
Dafa 2. - Hissa Mawaze Jamalpur waghaira mutaaleqa taluqa Milk Abdullah wa chhatwin hissa mauza Sarai Sadi pargana Ghosi wa chhatwin hissa mauza Deokali pargana Muhammadabad aur sawa nau anna (9 1/4 annas) hissa mauza Lawasath pargana Nathupur zila Azamgarh ke munafe ho bad waze malguzari wa ekhrajate zaruri ke ham muqir ne mai kitabhae kutubkhana waste masarife khair he waqf moabbad kiya wagean sarihan aur sharan mutawalli uska apni aulad men Maulvi Abdul Aziz Khan ko qarar diya chahiye mutawalli maskur hamesha mahasile dehat mauqufa mazkura ko sarfe masjido madarsae haramaine Sharifain wa zadrahe warido sadir waghaira hasb fard alaheda nzwishta omuhri hamare kiya karain aur hamesha mutawalli ashyae mauqufa ka hamare aulad se jo ahl horahe kare wa ghair shahs ya khelafe mazhab ba zariae tauliat dast andaz na hoga aur kisi shalchs ko hamare aulad se nisbat ashyae mazhhura he ekhtayar bai o rehan waghaira inteqalat ka haq ba hoga.
4. This passage may be translated as follows:
I have made a waqf of the profits from the shares in the villages of Jamalpur, etc., the villages appertaining to taluqa Malik Abdulla 1/6th share in the village of 8arai Sadi, pargana Ghosi, 1/6th share in the village of Deokali, pargana Muhammadabad Gohna, 9 1/4 share in the village of Lawasath, pargana Nathupur, district Azamgarh, with the books in my library for charitable purposes after paying Government revenue and defraying necessary expenses. The said wakf is correct and lawful. I have appointed Maulvi Muhammad. Abdul Aziz Khan as mutawalli of the said wakf. The mutawalli aforesaid should spend the profits from the villages made a wakf of on mosque and madrasa and Mecca and Medina and on visitors etc. as given in a separate list executed by me. Any one of my descendants who may be found fit for holding the office of mutwalli of the property made a wakf of should be appointed mutwalli. Any other person holding views contrary to the religion shall not interfere with the mutwalliship. None of my descendants shall have a right to make a transfer in respect of the aforesaid property by way of sale and mortgage, etc.
5. A slight change may have been made in the translation on p. 91 in regard to the books in the library. Now learned Counsel argues that this passage means that the profits only were dedicated and not the villages from which those profits arose. As regards the first use of the word 'profits' we consider that this is a direction to the mutwalli as to the way in which he is to apply the net profits after paying the Government revenue. The words on which counsel also argued were 'mahasile dehat mauqufa'. Learned Counsel argued that the words 'mauqufa' must go with the word 'mahasile' and that this meant the profits which were made wakf, but we consider that as the word 'dehat' comes between the words 'mahasile' and 'mauqufa,' it is the word 'dehat' which must be taken with the word 'mauqufa' and the expression means the profits of those villages which villages have been made into a wakf, or in other words, the profits from the villages dedicated. At the end of this para. 2 there is the provision that none of the descendants should have any right to make a transfer of the property by way of sale and mortgage. Such a provision in our opinion is only appropriate on the theory that what is dedicated is the villages themselves as no question would arise of the sale or mortgage of a mere right to receive profits from a village. Another reason which inclines us to the view that the villages themselves were dedicated is the fact that these four villages, Jamalpur, Sarai Sadi, Deokali and Lawasath, are not in the list of property which was given to any of the heirs of the executant. If profits only were to be the subject of dedication then the villages themselves would have been divided among the heirs. The fact that the villages were not divided among the heirs indicates that the villages themselves were the subject of the dedication. We may note that besides the three villages of Sarai Sadi, Deokali and Lawasath this para. 2 deals with 'the villages Jamalpur, etc. appertaining to taluqa Malik Abdulla.' These are not set out in the document but in the subsequent deed of wakf of, 2nd September 1916 on p. 101 these villages are shown to be Jamalpur, Baraipar Milk and Bhitauli Milk. These six villages are not referred to in the deed of wakf of 1864 as divided among the heirs. The villages which are divided among the heirs are shown in para. 3 of p. 92 which are all in Ghazipur District. The villages which were the subject of the endowment in 1864 on the contrary are all in Azamgarh District. Some further argument was made by learned Counsel in regard to p. 93, para. 11 which stated:
It shall be incumbent upon my eldest son Maulvi Muhammad Abdul Aziz Khan to make the management of the ilaqa according to the direction given above to keep the madrasa, etc.
6. Now learned Counsel argued that this meant that Abdul Aziz was to manage the whole of the property and that the ilaqa referred to the whole of the property which had originally belonged to Saheb Ali Khan. We do not think that this meaning is necessarily to be read into that word. On p. 91 line 33 the document refers to the ilaqa of the sons and then follows the reference to the property in Azamgarh District which was dedicated. We think therefore that in para. 11 the ilaqa to which the executant refers is probably the ilaqa in Azamgarh which was the subject of the dedication in para. 2. Another reason why this should be so is that it was not provided by the document that Abdul Aziz should have control over the property allotted to his two brothers. On the contrary what was provided in para. 3 was that:
They should work in consultation with one another or depend upon the opinion of Maulvi Abdul Aziz Khan in matters of dismissal and appointment of servants, etc.
7. Therefore the method in which learned Counsel for appellant desires to represent para. 11 would be contradictory to what is provided in para. 3 where it was left a matter of option to the brothers as to whether they should leave the matter to Abdul Aziz, the eldest brother, or not. Another argument which was made in regard to this document was that there was no effect given to the document by mutation. The document stated on p. 91, line 40 that the eldest son, Abdul Aziz, had been appointed as mutawalli. The fact that the executant divested himself of any control of the pro. perty is shown by p. 92, line 50 stating that Abdul Aziz was even to draw the pension for the executant from the Govern, ment Treasury and distribute it in a certain way, sending only Rs. 30 per mensem to the executant wherever he was residing. The executant therefore divested himself of all control of the property according to the deed and put his eldest son in control as mutwalli of the portions of which he made a dedication. The executant was at the time an old man and he died in the year 1866, two years after executing this document. We may briefly note the origin of the system of mutation. Bengal Regn. 3 of 1803 provided in Section 11 that Civil Courts should furnish copies of all decrees affecting landed property for record in the Collector's office. At the time of settlement of the land revenue it was provided by Regn. 7 of 1822, Section 9 that there should be a 'specification of all persons enjoying the possession and property of the soil, etc.' It was not until Act 19 of 1873 (Agra), Section 97 that the law imposed on persons obtaining possession by succession or transfer or any proprietary or other right in a mahal the duty of making a report of such succession or transfer to the Tahsildar. This duty is now imposed by Section 34, Act 3 of 1901, the present U.P. Land Revenue Act. As the duty of making such a report was imposed for the first time in 1873, there was no duty to make the report in 1864 when the deed of wakf was executed. The argument of learned Counsel, Mr. Khwaja, for the appellant that the absence of mutation in 1864 shows that the deed of 1864 was not carried into effect, is therefore unsound, as there was no system of mutation for such deeds at that period.
8. There is a considerable body of oral evidence which shows that this property, list A of the plaint, the subject of this endowment of 1864, has always been treated as endowed property. In the later registered deed of wakf of 1916 on page 101 the list of property made a wakf of by Saheb Ali Khan is set out and on page 100, line 35 it is stated that that property would remain as a wakf property in accordance with the object of the deceased donor of the wakf. For the appellant it is pointed out that; mutation not having been made at a period when the document of 1864 was executed, there was mutation at a much later date, for example on page 145 it is not until the year 1340 F. that we have the entry for the village of Deokali that it was dedicated property. Previous khewats have not been produced and it is argued that if previous khewats showed the wakf they would have been produced. On page 142 for Sarai Sadi the entry is of Alauddin for the year 1339 F. and the word mutwalli is not used. Tha case of Jamalpur on page 138 is similar for the year 1338 F. On page 132 for mauza Lawasath there is the entry of Alauddio and Muhammad Nasir, another member of the family, in equal shares for the year 1327 F. and for this village for the year 1330 F. on page 133 there is a mutation shown in accordance with an order of 23rd January 1923 that these two persons are entered as managers, the property being owned by Almighty God. Learned Counsel1 comments on the fact that two members of the family are entered as managers and he argues that only one person should be mutwalli. The deed is not clear on the point that only one person should be the mutwalli, but a mere irregularity in the subsequent entry in the khewat cannot in any way make the deed of wakf an invalid deed. What we have to regard is the intention off the executant in 1864 and whether the registered document which he executed carried out that intention and created a valid deed of wakf at that date. If the deed of wakf was validly created as we consider it was, then the mere fact that subsequently members of the family were negligent in getting mutation made in the correct manner when the system of khewats was first introduced with the first Revenue Act in this Province, Act 19 of 1873 (Agra), at a much later date, is a matter which has no bearing on the question of the validity of the wakf.
9. We now turn to the second deed of wakf which begins at page 95 and is dated 2nd September 1916. We concede to the plain, tiff, appellant that this deed of wakf was executed under the circumstances which she alleges. In the year 1916 Alauddin had* two wives living, his first wife having died. One of these wives, Mt. Amina Bibi, was aged 28. His other wife, Mt. Sakina Bibiv the mother of the plaintiff, was aged 43. These ages are taken from the plaint. Now some cause of dispute had arisen between Alauddin and Sakina Bibi. Sakina Bibi had a single child, the plaintiff, who was at that time 13 years old. Sakina Bibi brought a claim for dower and filed an application to sue as a pauper on 1st September 1916. The evidence shows that Alauddin desired to defeat that claim and that he went to various lawyers for assistance in defeating that claim. Now it is obvious that Alauddin was extremely annoyed with his wife Sakina Bibi and presumably also with her daughter, the plaintiff, and that he desired to defeat the claim for dower and that he also desired to limit the amount which these people could receive from his property. The suggestion made by learned Counsel for the appellant is that Alauddin was advised to achieve this object by executing a deed of wakf which would be farzi, and evidence is called to show that he was told that as soon as the suit for dower was completed, the deed of wakf might be abandoned. On p. 27, line 13 it is stated by a witness for the plaintiff that his master said that this wakfnama would save that property from being taken in execution of decree for dower, but that after that decree it would be a mere waste paper. This is evidence given by the scribe of the wakfnama who was the muharrir of the vakil under whose orders, he says, the document was drawn up. The point which occurs to us is that Alauddin desired not only to defeat the claim for dower but also to reduce the claims of the plaintiff and her mother against his estate to a small sum as the document at p. 97 gives an allowance to the plaintiff Alimunnissa Bibi of Rs. 36 per annum, i.e. Rs. 3 p.m. and the allowance for her mother, Mt. Sakina Bibi, is Rs. 60 per annum or Rs. 5 p.m. Now if the document was going to be treated as waste paper as soon as the suit for dower had finished then the right of the plaintiff would not have been defeated at all. We do not consider therefore that the theory that the document was to be treated merely for the period of the suit for dower is a correct theory. The object of Alauddin would be the permanent limitation of his wife Sakina Bibi and the plaintiff, her daughter, to a small amount from his estate, Rs. 5 and 3 respectively. He could only achieve that object if he executed a valid deed of wakf. This is a strong reason for considering that that was his intention as a mere nominal or farzi deed of wakf would not effect that intention.
10. As regards the suit for dower we may note that what did happen was that the dower was eventually paid in full by Alauddin to his wife with certain property which came to him by gift from his mother. It is remarkable that when he came to a settlement with Sakina Bibi about her dower he did not merely say : 'The document which I executed as a deed of wakf is not a genuine deed of wakf and I repudiate it and give you a share of the property.' That would be the action which we would expect him to take if he had merely executed the deed of wakf with the intention that it should be used to defeat the suit for dower, for when he acceded; to the demand for dower and came to a settlement, on the theory of the appellant, there would have been no further need whatever to maintain the validity of the deed of wakf. The fact that he did maintain the validity of that deed and did not interfere with it at all when he made the settlement for dower is in our opinion a strong point against the theory of the-appellant. Moreover Alauddin lived for 16 years after this deed of 1916 as he did not die until 1932. During the whole of that long period of 16 years he never executed any document, repudiating the deed of wakf, nor did he ever make any transfer of the property comprised in the deed of wakf by way of sale or mortgage. All that learned Counsel for the appellant is able to point to are certain cases in which there were disputes with tenants and in one of which there was a settlement by the acknowledgment of a tenant as one holding a perpetual lease. No doubt under the Mahomedan law a mutwalli is not entitled to make a permanent lease of property which, is wakf, but learned Counsel has failed to satisfy us that the property concerned in those transactions was property which was under the deed of wakf of 2nd September 1916. On the contrary it has been shown that there was this property which was given to Alauddin by his mother and the villages in question may be villages in which there was such a share. At p. 112 there is this deed of compromise between a number of zamindars one of whom was Alauddin and a tenant admitting the right of the tenant to a perpetual lease in certain plots in the villages of Kundri, Pargana Pachotar, and Nasirpur, Pargana Pachotar in Gbazipur District. Now the khewat of mauza Kundri on pp. 136 and 137 in Ghazipur District shows that in holding No. 5 there was 2 p. 10 kants held by Alauddin and he is not stated to be a mutwalli. On the other hand on p. 101 for Kundri Pargana Pachotar, printed by error as 'kadri,' there is the share shown as endowed property of 1 a. 8 p. 10 kants. It is clear therefore that the share which was endowed by the document of 1916 was a different share from the small share held by Alauddin on pp. 136 and 137. It is quite possible there, fore that the plot numbers on p. 113 referred to the small share on p. 136 which apparently Alauddin had received from his mother. The plaintiff appellant could have made this matter clear by producing the khatauni. But this has not been produced. We cannot make the presumption against the defendant unless the matter has been properly proved. Now as regards Nasirpur at p. 113, this is a village of Ghazipur District as the suit was in Ghazipur. On p. 101 there is this village Nasirpur of which la. 8 p. 16 kants was dedicated in 1916. Learned Counsel referred to a kbewat of Nasirpur on p. 141, but that is a khewat not of Ghazipur District but of pargana Muhammadabad Gohna in Azamgarh District, and this khewat does not refer to the village which was endowed of the name of Nasirpur, nor does it refer to the deed of compromise of mauza Nasirpur on p. 113. Learned Counsel has therefore quite failed to show that there was any connexion between the deed of compromise with the tenant on pp. Ill and 113 and the property which was endowed.
11. Another argument was made by learned Counsel that the deed of wakf of Alauddin was defective as it did not set out that Alauddin relinquished his possession as owner and took possession as mutwalli. We agree that a deed of endowment should make a statement to this effect conveying this idea. There is on p. 96, line 9 the following statement in the deed:
As long as I am alive I shall remain the mutwalli of the property made a wakf of and shall abide by all the conditions laid down in this deed of wakf.
12. In our opinion this statement does amount to a statement that the possession of the executant ceased as a private owner land his possession began as a mutwalli. Learned Counsel has not shown us any; ruling in which it is laid down that any particular form of words must be used to convey this idea. In Abdul Jalil Khan v. Obedullah Khan (1921) 8 A.I.R. All. 165 at p. 231 there was a case before a Bench of this Court where it is stated:
The facts as found by the learned Subordinate Judge are that Abdul Latif Khan did intend to create a valid wakf - did intend to make a genuine dedication. He declared the property to be wakf, he appointed a mutwalli (i.e. himself) and as he himself was the mutwalli there was no need of formal transfer of possession.
13. In Ghazanfar Husain v. Mohammad Fakirulla Mia (1922) 9 A.I.R. Cal. 492 at page 113 it is stated:
Where the settlor after declaring the trust, appoints himself a mutwalli, the vital factor, which counts is the transmutation of possession and where the character of the possession has altered by reason of the fact that possession is no longer held in the exercise of any right of ownership but vicariously for the benefit of the objects of the trust, the wakf prevails, in spite of the fact that there had been no mutation at all or that there was some delay in effecting the mutation.
14. In Bibi Jinjira Khatun v. Mohammad Fakirulla Mia (1922) 9 A.I.R. Cal. 429, it was held that where the settlor is mutwalli,
delivery of possession is not a pre-requisite to the validity of the wakf and even if the transmutation of possession is necessary no formal delivery is essential where the settlor is himself the first mutwalli.
15. We consider that the language of the deed of wakf of 1916 is clear on the point that possession was henceforth to be held by Alauddin as mutwalli and after that provision there follows a long and detailed provision for the appointment of mutwallis who would succeed him. We may note that on p. 129 there is a certified copy of an order in mutation case No. 436 which shows that on the application of Alauddin his name was removed and he was entered as the mutwalli of three villages, Kondri, Nasirpur, and Khalispur in Ghazipur District, on his producing the registered deed of wakf of 1916. The comment for the appellant is that mutation orders should have been shown for all the villages on p. 101. It may have been difficult to obtain mutation orders as they may have been weeded out in other tahsils. Learned Counsel argued that because there was a mention of a fine, mutation may not have been made if the fine was not paid. But Section 35, Act 3 of 1901, requires the tahsildar to make the entry if the succession or transfer has taken place, and he has no power to make the entry conditional on the payment of a fine, so presumably the entry was made as ordered. On p. 127 there is an order dated 25th July 1932 by the District Judge of Azamgarh on the death of Alauddin mutwalli calling on persons to object to the appointment of Abdur Rahman, defendant 1, as mutwalli in his place. The change was made. On p. 41 there is the evidence of D.W.M. Mohammad Enam Ullah, vakil of Azamgarh that he has been the official auditor of wakf accounts for Azamgarh District since 1928 and that he has cheeked the wakf accounts filed by defendant 1 Abdur Rahman. Defendant 1, from p. 34, and Abdur Raashin Karinda since 1923, p. 42, give evidence that the property was administered as wakf.
16. On p. 38 D.W. Bahr-ul-Uloom says he was a pupil for 14 or 15 years at a school 'Nasir-ul-Alum' at Ghosi, and for four years has been a teacher and grants are made to the school from this wakf property. On p. 31 Malik Jalal-ud-din supports this and another teacher Ali Ahmad on p. 40. Plaintiff and her mother alleged that possession was not taken on these deeds by the mutwalli as mutwalli, and on the other hand by the defence it is alleged that the deeds were given effect to and the possession was held by the mutwallis as administering the wakf. We agree with the Court below that the evidence for the defendants is preferable to the evidence for the plaintiff. Learned Counsel for appellant laid special stress on the evidence of Khan Bahadur Aminullah on page 26. This gentleman was a legal practitioner formerly in Ghazipur and during the course of his practice he states that in 1916 Alauddin came to him and asked him to have a sham document prepared and he refused to give him any advice. At line 21 he stated:
The impression which I gathered from the circumstances of the facts Alauddin spoke to me about was that he wanted to execute a certain fictitious document . As I had relation with the parties and as I considered it professionally unfair, I refused to give any advice in the matter.
17. Now this witness is speaking in the year 1934 after a lapse of 18 years. The reason that he gives as to why he refused to assist Alauddin was that he had relations with the parties and he considered the intention of Alauddin to be unfair. It is obvious that these reasons would apply just as much if Alauddin came to him and asked him to execute a perfectly genuine deed of wakf in order that his wife might be deprived of her right to dower. The introduction of the idea of a sham or fictitious deed of wakf is not necessary for the circumstances mentioned by the witness. We think that in the course of time his memory may not be accurate and we see no reason to accept the statement which he now gives that he was told that the deed would be fictitious. If Alauddin desired to execute a fictitious deed there was no reason whatever why he should say so to a lawyer whom he desired to draft the deed. No distinction in form can be made we think between a deed of wakf which the executant does not intend should be brought into force and one which he intends to be genuine. We are satisfied that the conclusion of the Court below is correct and that these two documents are perfectly valid as deeds of wakf and have been acted upon. On this view of the matter the plaintiff has no ground for interference with that portion of the decree of the lower Court which dismissed her suit so far as the property in Schedule A, B and C is concerned. This is the only point which she raises in appeal and accordingly we dismiss this first appeal with costs.