1. This is a first appeal by defendant 1, Haji Mohammad Abdul Aziz Khan, who claims that he is the mutawali of a wakf to which the property in dispute belongs. He appeals against a decree of the Additional Subordinate Judge of Muzaffarnagar, Mr. Nand Lal Singh, who granted the claim of the Hindu plaintiff's to succeed as reversioners of the last male holder, Chaudhri Mangal Singh, Jat zemindar of mauza Begharaz-pur in Muzaffarnagar District. The five plaintiffs are the sons of three brothers of Chaudhri Mangal Singh who predeceased him. He died on 29th October 1928, at the house of the appellant, where he had stayed for a month during his last illness. The plaint sets out in para. 5 that defendant 1 appellant, a Muslim, exerted undue influence on Chaudhri Mangal Singh, and,
brought to his residence the District Magistrate of Muzaffarnagar through the Civil Surgeon of that place and presented to him some document, and having put into the mouth of the said Chaudhri what he liked, made him state that before the said officer. The District Magistrate took away the document and subsequently the said defendant sent for it and put it in some place. Defendant 1 got written, according to his wishes, a document purporting to be a deed of wakf, and had the same signed by the Chaudhri and, having apparently given it the shape of a document which had been executed and completed, effected the registration thereof. The said document was read over neither to the said Chaudhri nor to the District Magistrate. The Chaudhri was not capable of understanding the document or knowing its effect. All the proceedings were the outcome of the brain of defendant 1 and his confederates. 6. During his life-time, Chaudhri Mangal Singh was and remained all along a Hindu and acted as such.... The Chaudhri never embraced Islam nor did he ever change his name. 7. During his life-time Chaudhri Mangal Singh made no wakf of any property either orally or in writing.... At all events such an oral wakf was not valid according to statutory enactments. 8. Even assuming that Chaudhri Mangal Singh was a Muhammadan at the time of his death which is not admitted by the plaintiffs, the plaintiffs are, according to law, entitled to his estate after his death.... The mutation of names in favour of defendant 1 is altogether wrong. 9. If it be assumed that the document dated 25th October 1928 was meant to create a wakf in future.... Chaudhri Mangal Singh was suffering from marz-ul-maut, the wakf can ...be valid only in respect of one-third share. 8A. Under an agreement dated 7th March 1893...the deceased aforesaid had no power to transfer his property to anybody.
2. The property was valued at Rs. 45,653. The plaintiffs asked for possession of the zemindari property, and for a declaration of ownership in regard to houses and documents. Defendant 1 pleaded that:
15. Chaudhri Mangal Singh alias Abdul Rahman, became a Muhammadan 32 years ago and from that time till his death he all along remained a Muhammadan. But on account of fear for his life and property he did not publicly give out his change of religion. 16. About 22 years ago (he) made...an oral wakf...of all his residential and culturable property mentioned in the document dated 25th October 1928, for purposes specified therein and appointed himself the mutawalli thereof. Since that day he remained in possession of the said property as the mutawalli and carried out the purposes of the wakf. 19. Chaudhri Mangal Singh, deceased, had for a long time been 'thinking of causing a document to be written whereby the conditions of the oral wakf might be, reduced to writing, but he was afraid of the plaintiffs and other relations. Accordingly during the course of his treatment the said Chaudhri...gave two drafts of the document dated 25th October 1928 to Mr. R. Milner White, District Magistrate of Muzaffarnagar. 20, Subsequently the District Magistrate...told him it would be better if the said document was registered...therefore the said Chaudhri...caused the document to he written out and got the same registered in presence of the Civil Surgeon and the District Magistrate. 24. At the time of his death Chaudhri Mangal Singh was a Muhammadan. The plaintiffs neither are nor can be his heirs.
3. The important issues were:
1. Whether Chaudhri Mangal Singh was a Hindu at the time of his death. 3. Whether the document dated 25th October 1928, was obtained through the influence of defendant 1 from Mangal Singh.
4. Whether any wakf was created by Mangal Singh over the property in dispute 22 years before and whether it has been acted upon or was it created on 25th October 1928.
12. Whether plaintiffs 1 to 3 are in all events entitled to the property in suit in the face of said award
of 7th March 1893. There were two other issues on the award whether it was binding on the defendants and whether it prevented Mangal Singh from transferring the property, Issues 10 and 11. We may dispose of this matter of the award in a few lines. The award is printed at pp. 199 and 200. There is no expression whatever in the award which says that the parties have not got the full rights of transfer. For Issue 12 learned Counsel for plaintiffs-respondents relied on the provision:
Should any party die without any issue, his estate shall be divided between the remaining parties.
4. Now the partition was for the three-brothers Nain Singh, Mangal Singh and Baru Singh. The argument is that the clause applies because Mangal Singh has died without issue. We consider that as Nain Singh and Baru Singh were not alive at the death of Mangal Singh, the clause cannot come into operation. Learned Counsel for respondents desires to read the words 'remaining parties' to include the heirs of the remaining parties. There is nothing in the award to support such a view. The award cannot be construed freely as if it were a testamentary document; it must be construed strictly. And the clause was against the right of a separated Hindu to dispose of his property by will. As the clause was therefore against the ordinary Hindu law, that is another reason for not extending it to apply further than the original parties. The trial Court has held against the plaintiff's on these issues. We may add that the argument for plaintiffs-respondents proceeds on the assumption that the three brothers were the three parties to the award. This is incorrect. The award begins by slating that Chaudhri Nain Singh was the first party and Chaudhri Mangal Singh and Baru Singh were the second party; two lots only were formed, a 1/8 share and a 2/3 share, and the two brothers took the lot of the 2/3 share. The word 'party' has been used throughout to designate these two parties. The word must bear the same meaning in the clause in question. Therefore it cannot apply as between the two members of one party. It is not the case that the second party has died without issue; for plaintiff 1 is still alive and he is the issue of Baru Singh, who along with Mangal Singh, formed the second party. For these reasons we agree with the trial Court in finding that the claims of the plaintiffs are not supported by this award. There remains now only one vital issue in this ease, that is issue 1, For if it is proved that Chaudhri Mangal Singh was a Muhammadan at the time of his death, the plaintiffs being Hindus cannot inherit from him. The law on this point has been settled by their Lordships of the Privy Council in Mitar Sen Singh v. Maqbul Hasan Khan 1930 ALJ 1257. On p. 1259 it is stated:
It has to be remembered that the law of succession in the case of a Hindu or a Muhammadan depends upon their own personal law.
5. Their Lordships then examined the ruling in Bhagwant Singh v. Kallu (1888) 11 All 100, where it was held that the Caste Disabilities Removal Act of 1850
protects any person from having any right of inheritance affected by reason of any (other) person having renounced his religion.
6. Their Lordships disagreed with this ruling and held that the Act must be applied only for the benefit of the person who changes his religion:
In other words, when once a person has changed his religion and changed his personal law that law will govern the rights of succession of his children.
7. The issues, therefore about the validity of the wakf and the extent of its operation have only academic interest in this case, because if it is found that Chaudhri Mangal Singh died a Muhammadan, then the plaintiffs under the above ruling are not his heirs and have no right to raise these questions. We, therefore, consider Issue 1 to be fundamental and vital in the present case. But as this question is closely connected with the evidence about the wakf, we consider the two matters at the same time. The lower Court devotes 15 1/2 pages of its printed judgment to the two issues on this point. But it only gives 21 lines to the evidence of the District Magistrate and does not mention the evidence of the Civil Surgeon at all. The judgment is taken up with consideration of the unimportant point of whether it was exactly 32 years ago that deceased was converted or not. Very little consideration is given to the important evidence of these two officers as to the last week of the life of deceased, and there is no mention at all on these issues of the important documentary evidence of the deed of waqf and its drafts, and the recitals in those documents. We proceed to consider this evidence. (Their Lordships considered the evidence for the plaintiffs and defendants and proceeded.)' But we consider that the question of whether deceased died as a Hindu or as a Muhammadan is not to be decided by evidence as to his conversion many years ago; it is to be decided by the consideration of the evidence oral and documentary of more recent years. We have now indicated what the evidence is on both sides. We find that the evidence for the defence amply proves that Chaudhri Mangal Singh became a Muhammadan a number of years before his death and that he died as a Muhammadan. The plaintiffs,., therefore are not his heirs and have no-right to succeed to his estate and their case fails on this ground. Issue 3 is on,, whether the document dated 25th October 1928 was obtained through the influence of defendant 1 from Mangal Singh.
8. There is no direct evidence of any undue influence. The plaintiffs wish the Court to presume undue influence from the circumstances, that Mangal Singh was in the house of appellant for a month before his death and that appellant was-present with other Muhammadans when the deed was executed and registered. The old cook Mt. Chhoto whose pay was Us. 2 a month seems to suggest on p. 27, line 1, that the Collector was exerting undue influence, and on p. 151 the defence asked for permission to ask the Civil Surgeon a question on this- allegation. But the Court rejected the application on the ground that this was not the plaintiffs' case. As we think that Mangal Singh was a Muhammadan for several years before his death, there was-; no undue influence from the circumstance that he was in a Muhammadan house-during his last illness. The deed which he-registered was the result of drafts which.' he had made long before, in one case 18 years previously in 1910 (Ex D). We-consider that the deed merely confirms the oral wakf on which Mangal Singh had been acting since at least 1921. as his. account books show. We therefore find that there was no undue influence in regard to the deed of 25th October 1928. Issue 4:
Whether any wakf was created by Mangal Singh over the property in dispute 22 years before and whether it had been acted upon or was-it created on 25th October 1928.
9. It is not necessary that a wakf should be in writing. It is necessary that the creator of the wakf should transfer possession to the mutawali. In the present case we consider that there was an oral wakf created many years before, a conclusion which we form from the oral declarations and the draft of 1910 and the account books of deceased, and the declaration in the deed of 1928. Mangal Singh was himself the first mutawali and ,his declaration Ex. D shows that he was holding as mutawali and not as owner. It is true he did not obtain mutation of the zemindari property, due to the fact that he did not wish to publish his change of religion. Mr. Banerji relied on Abadi Begum v. Kaniz Zainab 1927 25 ALJ 51, where it was laid down that under the Shiah law of Wakf, possession must be given of the thing appropriated and it must be entirely taken out of the wakif himself and on p. 59 it is stated:
Now the obvious and ordinary means of showing the change in the character of her possession would have been by mutation of names, that is to say, by getting herself entered in the public registry as holding as mutawali.
10. On p. 61 it is mentioned that the production of accounts would also prove the change in the nature of possession. In our opinion the accounts in the present case do establish such a change in the nature of possession. But the ruling does not apply to the present case because the ruling is in regard to Shiah law and Mangal Singh became a Sunni. We find against the plaintiffs on this issue also. We find that Mangal Singh made an oral wakf of his entire property a number of years before his death, and that he appointed the appellant as his successor as mutawali by the registered deed of 25th October 1928, and that appellant is entitled as mutawali to possess the property which is the subject of the wakf. We do not consider that it is necessary for us to come to findings on any further issues in this case, as in our view the plaintiffs have no right to inherit from Chaudhri Mangal Singh. Accordingly we allow the appeal of defendant 1 and we dismiss the suit of the plaintiffs, and we grant defendant 1 costs in both Courts from the plaintiffs.