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Baqa Ullah Khan and ors. Vs. Ghulam Siddique Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAllahabad
Decided On
Reported inAIR1935All616; 155Ind.Cas.416
AppellantBaqa Ullah Khan and ors.
RespondentGhulam Siddique Khan and ors.
Excerpt:
.....reserved for the poor or for any other purpose recognised by the mohamedan law as religious, pious or charitable purpose of a permanent character, and, as such, the wakf was invalid. there is a considerable force in this contention but, as we are of the opinion that the wakf created by the deed was valid and the plaintiff's suit must fail on the merits, we refrain from expressing an opinion on the point. , and the meeting of necessary expenses, one-sixteenth share of the net profits of the wakf property shall be spent in the way of god for the expenses of a mosque and for the support of the poor, widows orphans, etc. similarly the provision in the deed as to the application of the one-sixteenth of the income of the wakf property for charitable and pious purposes was clearly meant to be..........answer to that question depends the decision of this appeal. after the-execution of the deed of wakf wilayat husain on 10th august 1925, filed a suit for the revocation and cancellation of the deed and in the alternative for the rectification of the same. the suit was based mainly on the allegation that the execution of the deed. was brought about by the exercise of undue influence on wilayat husain by ghulam siddique khan, one of the defendants-respondents, and that as, there was no ultimate dedication by the deed in favour of the poor or for some pious, religious or charitable purpose, as enjoined by the proviso to section 3, wakf validating act, the wakf was invalid. it was further stated in the plaint that wilayat husain intended to make provision by the deed for the maintenance,.....
Judgment:

1. One Wilayat Husain Khan executed a deed of wakf on 28th April 1925, and the sole question for consideration in the present appeal is whether by that deed a valid wakf was created in accordance with the provisions of the Mussalman Wakf Validating Act (Act 6 of 1913), and on the answer to that question depends the decision of this appeal. After the-execution of the deed of wakf Wilayat Husain on 10th August 1925, filed a suit for the revocation and cancellation of the deed and in the alternative for the rectification of the same. The suit was based mainly on the allegation that the execution of the deed. was brought about by the exercise of undue influence on Wilayat Husain by Ghulam Siddique Khan, one of the defendants-respondents, and that as, there was no ultimate dedication by the deed in favour of the poor or for some pious, religious or charitable purpose, as enjoined by the proviso to Section 3, Wakf Validating Act, the wakf was invalid. It was further stated in the plaint that Wilayat Husain intended to make provision by the deed for the maintenance, amongst others, of his nephew Imdad Husain and his descendants and that, in the event of the Court refusing to cancel the deed, provision for the maintenance of Imdad Husain and his descendants be also made in the deed by rectification of the same. The defendants to the suit were Mt. Taslimunnisa, the wife, and Kaniz Fatma, the daughter of Wilayat Husain and Ghulam Siddique, the husband of Kaniz Fatma, and these very persons were the principal beneficiaries under the deed of wakf. The suit was contested by the defendants and the learned Subordinate Judge directed Wilayat Husain to appear in person on the date fixed for striking issues. 'For his examination for elucidation of material facts' Wilayat Husain did not attend in person on the date fixed and the Court on 12th October 1925, passed an order dismissing the suit for default with costs to the answering defendants.

2. Wilayat Husain died on 13th January 1930, and the suit giving rise to the present appeal was filed on 20th March 1930, by the plaintiff-appellants, who are the sons of Imdad Husain and the grand-nephews of Wilayat Husain. In the plaint the validity of the deed of gift was assailed on the very grounds on which Wilayat Husain had prayed for the cancellation of the wakf in the suit filed by him. The plaintiffs alleged that the execution of the deed of wakf was brought about by the exercise of undue influence on, Wilayat Husain and that as there was no ultimate dedication in favour of the poor or for some religious, pious or charitable purpose, the wakf was invalid.

3. Kaniz Fatma had died in the lifetime of Wilayat Husain and the defendants to the present suit were Ghulam Siddique and Mt. Taslimunnisa. Both the defendants contested the suit. They denied the allegation of the plaintiffs about the exercise of undue influence and maintained that the wakf was valid. They also pleaded that the order of the Subordinate Judge dated 12th October 1925, dismissing the suit filed by Wilayat Husain operated as res judicata and was a bar to the present suit in view of the provisions of Order 9, Rule 9, Civil P.C.

4. The learned Subordinate Judge upheld the contention of the defendants that Order 9, Rule 9, Civil P.C. was a bar to the suit. He however held that 'the ultimate benefit' was not, by the deed, expressly or impliedly reserved for the poor or for any other purpose recognised by the Mohamedan Law as religious, pious or charitable purpose of a permanent character, and, as such, the wakf was invalid. But, in view of his finding that the dismissal of the former suit was a bar to the present suit, he dismissed the suit. In appeal before us the learned Counsel for the plaintiffs-appellants has contended that the learned Subordinate Judge was wrong in holding that Order 9, Rule 9, Civil P.C. was a bar to the suit. There is a considerable force in this contention but, as we are of the opinion that the wakf created by the deed was valid and the plaintiff's suit must fail on the merits, we refrain from expressing an opinion on the point.

5. The deed of wakf is couched in plain and simple language and is mostly free from legal technicalities. It begins with a recital of the fact that Wilayat Husain, the wakif, is the owner of the properties covered by the deed. It is then stated that the wakif has a daughter Kaniz Fatma and a wife Taslimunnisa and that he is anxious to make a wakf of his entire property in the name of God (Fi-Sabi-Lil-lah) for the sake of maintenance of himself, his wife and daughter and also with a view to obtaining the blessings of the next world so that he may be receiving blessings after his death. The deed then goes on to provide that the wakf had made a wakf alal-alad and a wakf fi-sabi-liallah in perpetuity and for ever and that he had no proprietary rights left in the property and that he had removed his proprietary possession and entered in possession of the same in the capacity of a mutwalli. Then follows the provision as to the line of mutwallis. The wakif was to be the first mutwalli and he reserved to himself the right of appointing any person as mutwalli in his lifetime in his place. After the wakif's death Kaniz Fatma was to be the mutwalli of the dedicated property and after her death the male and the female issues, of Kaniz Fatma were to be the mutwallis in succession. Power was however reserved to Kaniz Fatma to appoint in her lifetime any of her descendants as mutwalli. In the event of the extinction of the line of Kaniz Fatma, Ghulam Siddique. Khan or his descendants or his nearest relations were to be the mutwallis of the property. The deed then went on to provide that:

In future for discharging the duties of the mutwalli, preference will he given to a person, who shall be religious and honest and who shall be selected for the purpose by the members of the community (Biradri) and the members of the family.

6. Detailed provision is thereafter made by the need for the application of the usufruct of the dedicated property. It is provided by the deed that after the payment of Government revenue, etc., and the meeting of necessary expenses, one-sixteenth share of the net profits of the wakf property shall be spent in the way of God for the expenses of a mosque and for the support of the poor, widows orphans, etc., and that the remaining profit shall be utilized for the maintenance of the wakif, his wife, his daughter and the descendants of his daughter. It is then declared by the deed that the wakf:

shall be governed by all the rules and legal provision of the Mahomedan law of the Sunni sect of the Hanafi School of Law to which

the wakif belonged. The learned Counsel for the plaintiffs-appellants has contended that as there was no express or implied reservation of the ultimate benefit arising from the wakf property in favour of the objects mentioned in the proviso to Section 3 of the Act, the wakf was invalid. We are unable to agree with this contention.

7. It is not disputed that Wilayat Husain intended by the deed in question to make a wakf in accordance with the provisions of the Mussalman Wakf Validating Act (Act 6 of 1913). In accordance with that Act, it is essential for the validity of a wakf for the maintenance and support of the family, children or descendants of the wakif or for the maintenance of the wakif during his lifetime, or for the payment of his debts out of the rents and profits of the dedicated property, that the ultimate benefit should expressly or impliedly be reserved for the purposes mentioned above. It is also clear that the ultimate reservation of the benefit for the above mentioned purposes was not expressly made by the deed under consideration. The only question therefore that remains is whether or not there was an implied reservation of the ultimate benefit for those purposes. In our judgment the answer to the question must be in the affirmative.

8. It is one of the recognised canons of the interpretation of a document that the document must be read and construed as a whole and due and legitimate effect be given to each and every one of its provisions. A reference to the deed of wakf in dispute puts it beyond doubt that the wakif did dedicate the property in perpetuity for the maintenance of his family and in the way of God. Further the provision in the deed as to the appointment of the mutwallis in the event of the extinction of the line of the mutwallis specifically prescribed by the wakif, makes it abundantly clear that the wakif intended the whole of the wakf to be in operation for ever. Similarly the provision in the deed as to the application of the one-sixteenth of the income of the wakf property for charitable and pious purposes was clearly meant to be in force for all time to come. There is however no express provision about the ultimate application of the fifteen-sixteenths of the income of the wakf property in the event of the extinction of the line of the wakif's daughter and her descendants, but a perusal of the deed leaves no room for doubt that the wakif did contemplate the possible extinction of the line of his daughter.

9. That being so, the wakif must be deemed to have contemplated the ultimate application of the fifteenth-sixteenths of the income of the wakf property on the extinction of the line of his daughter for some pious or religious purposes, as he in terms created the wakf not only for the benefit of his descendants but also in the way of God fi-sabi-lillah. The interpretation contended for by the learned Counsel for the appellants suffers from this infirmity that it leads, to the concha sion that, though the wakif purported to create a wakf in perpetuity in accordance with the provisions of the Wakf Validating Act, and; though he intended the wakf to be in operation for ever administered by mutwallis appointed in accordance with the provisions of the deed, and also realised the possibility of the line of his daughter becoming extinct, he inadvertently failed to make any provision as regards the ultimate application of the fifteen-sixteenths of the profits of the wakf property. The reservation of the ultimate benefit contemplated by the proviso to Section 3, Wakif Validating Act, can either be made expressly or impliedly. The answer to the question whether the reservation of the ultimate benefit for those purposes has, been made by a deed of wakf must depend on the intention of the wakif as disclosed by the deed. In a case where the words 'wakf fi-sabi-lillah' have been used and wakf has been created in perpetuity, and there is provision far the appointment of the mutwallis for all time to come, and a portion of the usufruct of the wakf property has been reserved for pious and charitable purposes, and the wakif had in contemplation the possible extinction of the line of his descendants who were to be the principle recipients of the profits of the wakf property, the irresistible conclusion is that the wakif intended by implication to reserve the ultimate benefit for the purposes enumerated in the proviso.

10. For the reasons given above, we hold that a valid wakf was created by the deed dated 28th April 1925, and the plaintiffs' suit was rightly dismissed by the Court below. We accordingly dismiss this appeal with costs.


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