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Abdul Wahab Vs. Mt. Sughra Begum - Court Judgment

LegalCrystal Citation
SubjectTrusts ans Societies;Civil
CourtAllahabad
Decided On
Reported inAIR1932All248; 136Ind.Cas.619
AppellantAbdul Wahab
RespondentMt. Sughra Begum
Excerpt:
.....is a valid object of wakf. the learned counsel for the appellant contended that only the poor can be beneficiaries under the wakf, if they do not belong to the family of the wakif. on general grounds there is nothing to prevent a wakif from reserving to himself the power of naming beneficiaries subsequent to the execution of the deed of wakf, provided charitable intention is clearly indicated in the deed. as regards the contention that it is open to a subsequent mutawalli to reduce the amount fixed by the wakif, we are clearly of opinion that, if the pay or pension was made a valid object of the wakf, as we think it is in, the present case, it is not open to any mutawalli to interfere with it......of the income will lapse into the general purposes of the wakf.4. it is next contended that the wakf deed being silent as regards the amount payable to each servant, and the allowance having been fixed by khurshed ali khan at the time when he was not the owner of the property but a mutawalli, the respondents are not entitled to the allowances claimed by them. on general grounds there is nothing to prevent a wakif from reserving to himself the power of naming beneficiaries subsequent to the execution of the deed of wakf, provided charitable intention is clearly indicated in the deed. in ameer ali's book on mahomedan law, vol. 1, p. 426, edn. 4, it is stated to be the rule thatthe wakif can reserve to himself, at the time of the dedication, the power to alter the beneficiaries of the.....
Judgment:

Niamatullah, J.

1. These are defendant's appeals arising out of two suits, one brought by Mt. Sughra Begam the respondent in Second Appeal No.473 of 1929, and the other by Rahim Bakhsh, the respondent in Second Appeal No.474 of 1929, for recovery of arrears of maintenance fixed by Khurshed Ali Khan who executed a deed of wakf on 1st April 1919, by which he dedicated property yielding a net income of Rs. 7,000 a year for certain charitable purposes. Khurshed Ali Khan died on 28th December 1926 up to which date he acted as mutawalli. The defendant-appellant succeeded his father in the office of the mutawalli. Among other provisions contained in the deed of wakf one is in favour of the respondents who were old servants of Khurshed Ali Khan. A certain amount was mentioned in the deed of wakf to be paid as salaries and pensions of the wakif's servants whose names were not specified, nor were the amounts mentioned.

2. It was however clearly stated that particulars as regards names and the amounts should be taken from the pay bills bearing his signature. Apparently the wakif had not decided as to what amount should be paid to each servant, and he reserved the power of nominating; beneficiaries out of the servants and the allowances to each for a subsequent occasion. During the seven years* which intervened between the date of the wakf and his death he paid Bs. 60 a. month to Mt. Sughra and Rs. 30 a month to Rahim Bakhsh. It should be mentioned that the two are wife and husband. The pay bills in which these salaries are entered bear the signature of Khurshed Ali Khan. It has also been found by the lower Courts that the defendant-appellant himself paid allowances to the respondents at the above rates, after the death of Khurshed Ali Khan before the period in suit. Relations between the parties became strained, and it. became necessary for the respondents to-institute the suits which have given rise to these appeals. The defence, so far as it is necessary to state for the purposes of the present appeals was that according to Mahometan law, it is not one of the valid objects of the wakf to make provisions for salaries and pensions, of servants; that no allowances having been fixed in the deed of wakf, subsequent, action of Khurshed Ali Khan should be. considered the act of mutawalli who is not entitled to amend the provisions of the deed of wakf, and that in any case it is open to a succeeding mutawalli to reduce the salaries and pensions to reasonable amounts. Both the lower Courts have overruled these defences and decreed the plaintiff's claim.

3. The learned District Judge, who has written an excellent judgment dealing with the various questions raised before him, has held, and we think rightly, that a provision for the salary and pension of servants is a valid object of wakf. In Ameer Ali's Mahomedan Law, Vol. 1, p.276, Edn. 4, a number of valid objects of wakf are stated. One of them is the wakif's own descendants, another is kindred and neighbours. Even strangers are mentioned as objects of bounty. Dependants and servants are specifically mentioned as persons for whose maintenance provision can be made in a wakf. Tyabji in his notes under Section 457 of his book on Mahomedan Law, Edn. 2, has also mentioned that provisions for individuals may be a charitable object according to Mahomedan notions. We entertain no doubt that the view taken by the learned District Judge is correct and is borne out by the authorities to which reference has been made. The learned Counsel for the appellant contended that only the poor can be beneficiaries under the wakf, if they do not belong to the family of the wakif. He argues that in so far as Mt. Sughra and Rahim Bakhsh are possessed of other sources of small incomes, they cannot be classed among the indigents. He has quoted no authority in support of his contention which is opposed to the rules given by Ameer Ali and Tyabji already referred to. The words ' rich and poor ' are relative terms, and it cannot be stated that a person having a certain minimum income cannot be considered to be indigent in any circumstances. It is obviously a very laudable act for a Mahomedan to make a provision for his faithful servants. We may note that the pensions granted to the respondents are for their lives only and that after their death, that part of the income will lapse into the general purposes of the wakf.

4. It is next contended that the wakf deed being silent as regards the amount payable to each servant, and the allowance having been fixed by Khurshed Ali Khan at the time when he was not the owner of the property but a mutawalli, the respondents are not entitled to the allowances claimed by them. On general grounds there is nothing to prevent a wakif from reserving to himself the power of naming beneficiaries subsequent to the execution of the deed of wakf, provided charitable intention is clearly indicated in the deed. In Ameer Ali's Book on Mahomedan Law, Vol. 1, p. 426, Edn. 4, it is stated to be the rule that

the wakif can reserve to himself, at the time of the dedication, the power to alter the beneficiaries of the trust by either adding to their number or excluding some, or to increase or reduce their interest in it. He cannot do so afterwards.

5. It is obvious that, if a provision is expressly made in the deed of wakf, it is not open to the wakif to revoke it, or to derogate from it. But if he has deliberately deferred making provision on a particular subject to a future date and does make such provision, such provision should be considered to be part and Parcel of the deed itself. As regards the contention that it is open to a subsequent mutawalli to reduce the amount fixed by the wakif, we are clearly of opinion that, if the pay or pension was made a valid object of the wakf, as we think it is in, the present case, it is not open to any mutawalli to interfere with it. This contention has in our opinion no force.

6. In the view of the case we have taken, these appeals have no force and are dismissed with costs including counsel's fees in this Court on the higher scale.


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