1. This appeal arises from a decree passed by the Subordinate Judge, Cawnpore, in a suit brought by the appellant, Mt. Latifunnisa, for a declaration that a 'wakfnamah,' dated 24th September 1926, purporting to have been executed by her, and a deed of agreement of even date also-purporting to have been executed by her, are void against her and do not affect her proprietary interests in the property detailed in Schedules 1 and 2, appended to the plaint, and for recovery of possession of a house mentioned in Schedule 3, which is identical with one of the four items of property mentioned in Schedule 1. It has been mentioned in a separate schedule in addition to its reference in Schedule 1, because the plaintiff claims possession of this house, while in respect of other property her suit is confined to a mere declaratory relief. The suit was dismissed by the trial Court which left certain issues undetermined. On the hearing of this appeal a Bench, of this Court remanded the suit for a finding on a number of issues stated in an order dated 8th November 1932. The findings on those issues have since been received, and we have heard learned Counsel for the parties on the whole case which is now ripe for a final decision.
2. The plaintiff impleaded as defendants to the suit seven persons. Defendant 1, Saiyed Najmuddin Shah, is admittedly the 'sajjadianashin' of a 'khanqah' at Fatehpur and the spiritual preceptor of the plaintiff. Defendant 2 is the son-in-law of defendant 1. Defendants 3 and 4 are the disciples of defendant 1. None of these defendants belong to the plaintiff's family. Defendant 6, Mt. Sughra Bibi, is the daughter of the plaintiff. Defendant 5, Allahdiya Khan, is the husband of defendant 6. Defendant 7, Fazal Hasan Khan, is the plaintiff's son. The contest lies between the plaintiff and her daughter, defendant 6, who is hereinafter referred to as the defendant. The latter's husband has been impleaded only because he is said to have been instrumental in bringing about the alleged 'wakf' and the agreement impugned by the plaintiff. Defendant 7 did not contest the suit, and is apparently at peace with his mother.
3. The plaintiff is the widow of one Yar Hasan Khan, who was employed in the Commissariat and died in 1925, leaving the plaintiff, his widow, and defendants 6 and 7, his daughter and son, respectively. He left a sum of over Rs. 32,000 which was realised by the plaintiff. It was divided among the three heirs of Yar Hasan Khan after payment of Rs. 11,000 dower debt due to the plaintiff, and sundry other charges. Defendant 6, the daughter, received Rs. 6,231-11-4 as her share. The daughter laid claim to a share in five houses situated in Cawnpore, the first four of which are mentioned in Schedule 1, and the fifth in Schedule 2. She alleged that all the five houses belonged to her father. The plaintiff, on the other hand, claimed them to be hers, in which her husband or his heirs had no interest. House No. 4, entered in Schedule 1 (also mentioned in Schedule 3) is claimed by the defendant as her own property under an oral gift made in her favour by her father at the time of her marriage. It is common ground that the sites of the four houses, mentioned in Schedule 1, belonged to the plaintiff, who inherited them and the houses then standing thereon from her parents. The houses originally standing on them were partly 'kachcha' and partly 'pucca' which ware subsequently demolished, and the houses now standing on those sites were built at a considerable cost. According to the plaintiff, such cost amounted to Rupees 12,500; while according to the defendant, no less than Rs. 25,000 was spent on the new constructions. The plaintiff alleges that the money spent on the new buildings belonged to her while the defendant's case is that it was her father who constructed the existing buildings with his own funds.
4. This is one of the questions to be decided in this appeal. The house entered in Schedule 2 was admittedly purchased under a sale deed in the name of the plaintiff, who claims to be the owner thereof. The defendant, on the other hand, alleges that this house, like the others, belonged to her father, who purchased it under a benami sale deed in the name of the plaintiff. This is another point in dispute between the parties. The wakfnamah and the agreement, impugned by the plaintiff, are alleged by the defendant to have been executed by the plaintiff in the following circumstances:
After the distribution on 12th June 1926, of cash left by the plaintiff's husband, among his heirs, there was a dispute between the plaintiff and her daughter, defendant 6, in respect of the houses now in question. There is little doubt that it was the son-in-law, defendant 5, who was setting up a claim on behalf of his wife and, but for his activities, matters would not have come to this pass. It was agreed that all the disputes between the parties be referred to an arbitration by defendant 1 who was highly respected by both of them. Accordingly an agreement was executed on 2nd May 1926, by the plaintiff, her daughter (defendant 6), her son (defendant 7) and her son-in-law (defendant 5) referring all disputes for decision by defendant 1 as arbitrator. On 6th June 1926, the plaintiff and her daughter appeared before the arbitrator, and the plaintiff promised to produce some documents on a subsequent date. These facts are noted in Ex. C, which purports to be proceedings before the-arbitrator bearing the thumb-mark of the plaintiff. Eventually defendant 1 delivered an oral award, directing that the property be distributed according to Mohamedan Law. The plaintiff thereupon executed another document on 31st July 1926, which is styled as 'kabuliyat.' It purports to bear the thumb-marks of the plaintiff and her daughter, defendant 6. They signify by that document their acceptance of the award. All this happened at Fatehpur, where defendant 1 resides in his. 'khanqah.' The plaintiff, her children and her son-in-law reside at Cawnpore.
5. After the award was delivered, the plaintiff is said to have told her daughter and son-in-law that her husband, Yar Hasan Khan, had contemplated a wakf-alal-aulad in respect of the property and that its division was likely to be detrimental to all and that it would be better if instead of the property being partitioned she were allowed to execute a deed of wakf which should ensure enjoyment thereof by all concerned. This suggestion was accepted by the daughter and her husband. Accordingly a deed of wakf was executed on 24th September 1926. The deed declared one of the houses as the exclusive property of the plaintiff and her son while another house, which is alleged to have been made a gift of to the defendant on the occasion of her marriage, was declared to be her property. These two houses are, according to the deed, unaffected by the wakf. The income of the other houses, which are made wakf, after making allowance for repairs and public charges and Rs. 30 a month as the allowance of the plaintiff, who is to remain the 'mutawalli' during her lifetime, is to be divided between the son and the daughter in the proportion of 2 to 1. To be more exact, the son is to get Rs. 120 a month, while the daughter is to receive Rs. 60 a month. The total income, as given in the deed, is Rs. 225. On the same date an agreement was executed by the plaintiff, her son, daughter and son-in-law who agreed to hand over the income of the 'wakf' property to defendant 1, who was to supervise the superintendence of the 'wakf' by the 'mutawalli' and to distribute the allowance in terms of the deed of wakf. According to the agreement, the mutawalli, was to hand over the income of the 'wakf' property to defendant 1 and submit her accounts to him. There are other provisions in the agreement but in view of what has happened it is not necessary to enter into a detailed discussion of that document. An application was made to the Municipal Board for entry of the name of defendant 6 in respect of the house allotted to her by the deed. Similarly an application was made for entry of the name of defendant 7 (the son) in respect of the house reserved for him and the plaintiff. As regards the rest of the houses, entry was to be made in the registers of the Municipal Board that they were 'wakf' properties and in possession of the plaintiff as 'mutawalli.'
6. The above, in brief, are the defendant's allegations. The plaintiff however denies the material part of the story narrated above. She instituted the suit which has given rise to this appeal on 12th December 1927. She alleged in her plaint that the agreement to refer the dispute to arbitration the wakf and the agreement in favour of defendant 1 were not executed by her, and that advantage was taken of her position as an illiterate 'pardanashin' lady by all the defendants. She alleges to have affixed her thumb-marks to certain blank papers at the instance of defendants 5 and 6. Fraud and undue influence, alleged by her, are described in paras. 7 to 12 of her plaint. According to her story, defendants 1 and 2 identified themselves with the interests of the daughter and participated in the fraud alleged by her. She also attributes a desire to defendant 1 to have control of the entire property belonging to the plaintiff.
7. A written statement was filed by defendants 1 and 2, who repudiated the plaintiff's allegation so far as it charged them with fraud and unfair dealings, and consented to the agreement entrusting the superintendence of the 'wakf' to defendant 1 being cancelled. They disclaimed all interest in the property or its management. Similarly, defendants 3 and 4 filed a written statement denying the plaintiff's allegation so far as it attributed any fraud to them. Defendants 5 and 6 contested the plaintiff's claim, alleging that the plaintiff had agreed to refer to arbitration the dispute which had arisen in respect of the property now in suit, that the award made by defendant 1 was accepted by her and that the deed of wakf was executed by her intelligently and voluntarily.
8. The trial Court set aside the agreement in view of the attitude adopted by defendant 1. In other respects the suit was dismissed. Originally the suit was tried by Mr. Gopal Chand Sharma, who held that no fraud was practised on the plaintiff, that she, referred the dispute which had arisen between her and her daughter to an arbitration by defendant 1, who made an award directing that the property be divided according to Mohamedan Law, and that she subsequently executed the deed of wakf, as alleged by the defendant. The issues relating to ownership of the houses in dispute were left undecided by the Subordinate Judge, and as already stated, this Court remitted a number of issues, which were decided by another Subordinate Judge, Mr. Malik, who had in the meantime succeeded Mr. Sharma. His findings are mostly in favour of the plaintiff. It has been found on those issues that the land, on which the present buildings stand, was inherited by the plaintiff from her father, that she built the houses now existing with funds belonging to herself, that the house entered in Schedule 2 was purchased by her and the sale-deed in her favour was not 'benami' for her husband, and that the house entered in Schedule 3 was not given to defendant 6 at the time of her marriage, as alleged by her. These findings have been challenged by the defendant. The findings arrived at by Mr. Gopal Chand Sharma, so far as they are against the plaintiff, have been challenged by her. Practically the whole case has been argued and we have to record our findings on all the material questions arising in the case.
9. It was denied by the defendant that the plaintiff is a 'pardanashin' lady and entitled to the protection which the law extends to her as regards documents executed by her. It was found before remand that the plaintiff is a 'pardanashin' lady, and that the case should be approached in the light of rules applicable to documents executed by 'pardanashin' ladies. There is ample evidence on the record to justify the finding that the plaintiff is a 'pardanashin' lady. Nothing has been said in arguments which can persuade us to take a different view.
10. Mr. Gopal Chand Sharma rightly threw the onus in the first instance on the defendant to establish that the plaintiff executed the agreement of reference and the deed of wakf knowing their nature and effect on her interest, and was a free agent in doing so.
11. The plaintiff admits that her son-in-law and her daughter, claimed a share on the house property. She also stated that the dispute about the cash was settled, but that in respect of the 'property' (implying the houses) was not amicably settled and that she claimed it to be her own while they (daughter and son-in-law) claimed it to be the property of her husband. It is probable that the parties would be disposed to refer the dispute between them to an arbitration by defendant 1 whom they and a large number of other Mohamedans of the locality regarded as a saint and who was expected to give an impartial decision on the questions at which the parties were at variance. The agreement of reference is a simple document, which provides that defendant 1, 'may decide all our disputes relating to ownership and partition of the moveable and immovable properties.' The main controversy between the parties was whether the immovable property belonged to Yar Hasan Khan as alleged by the daughter, or to the plaintiff herself. There is no doubt that if the agreement to refer was duly executed by the plaintiff, this question was the principal issue which called for a decision by the arbitrator. The agreement purports to have been scribed by one Waris Ali Khan and signed, inter alia, by the plaintiff's son, Fazal Hasan Khan, Waris Ali Khan was examined as a witness and stated that the plaintiff, who was in a 'burqa,' signed the agreement in his presence and that the document was read over to the parties, who accepted its terms. The only thing elicited in cross-examination is that though he is not a disciple of defendant 1, be has 'confidence' in him (defendant). There is nothing in the evidence of this witness which need excite any suspicion. At the same time, he does not say that the document was explained, and deposed to the same having been merely read over to the plaintiff. Allahdiya, the plaintiff's son-in-law, has however stated the circumstances in which she executed the agreement. He says that there was a dispute in respect of the 'tarka' of Yar Hasan and that the plaintiff agreed to refer the dispute to defendant 1 for decision. He also states that the agreement was explained to her. The stamp purports to have been purchased by the plaintiff's son, Fazal Hasan, on 1st May 1926. Fazal Hasan has not been examined as a witness in the case. The plaintiff adduced evidence to prove that Fazal Hasan is an idiot. The lower Court has not accepted this allegation nor are we satisfied that there is any truth in this allegation. It may be that Fazal Hasan, who is described in the deed of wakf as 'sidha sadha admi' (a simple man) was not considered sufficiently clever to stand cross-examination and was, for that reason, not produced; but there is no warrant for the suggestion that be is incapable of giving evidence.
12. One Nawab Ali, who is a zamindar paying revenue of Rs. 600, has stated that he wrote Ex. C, which he described as an application on, behalf of the plaintiff but which appears to be more in the nature of proceedings before an arbitrator. He says that it was at the instance of the plaintiff that he wrote that document. He also deposes that the parties adduced oral evidence before the arbitrator and that he himself took down the evidence. According to him the plaintiff affixed her thumb-mark on Ex. C, which records her declaration that she would produce documents at a subsequent hearing. This witness so deposes to the oral award made by defendant 1, to the effect that the property should be divided according to the Mohamedan Law. The witness further deposes that the parties accepted the award, which was subsequently written out on a stamp paper of Rs. 5 and was laid before defendant 1 for signature; but the latter refused to sign it on the ground that 'he is not a worldly man' and could not associate himself with worldly matters. Thereupon the parties requested the witness to record their acceptance of the award. Ex. D was then written by the witness and signed by the plaintiff and her daughter, both agreeing to abide by the award delivered by defendant 1. This document, according to the witness, was read over to the plaintiff. We have also the evidence of Allahdiya, the plaintiff's son-in-law, which, if believed, establishes conclusively that the plaintiff took an intelligent part in all these proceedings and knew what had happened.
13. Having considered the evidence bearing on the point, we find ourselves in agreement with the lower Court in holding that there was a dispute between the parties as to whether the house property should be considered to be part of Yar Hasan's assets and therefore divisible among his heirs, that the plaintiff referred this dispute to arbitration and defendant 1, who was the arbitrator, gave an award directing that the property be divided according to Mohamedan Law, which implied that it was part of the assets of Yar Hasan and did not belong to the plaintiff in her own right. In arriving at that finding we are not unmindful of the difficulty that the arbitrator, whose oral award is relied on by the defendant, has not been examined; but we accept the explanation offered on behalf of the defendant that defendant 1 has a conscientious objection to appearing in Court and it is for that reason that the defendant did not insist on his evidence. It is easily imaginable that a party in the position of the defendant would not consider it safe to enforce the attendance of a witness like defendant 1, who is supposed to be dissociated from worldly affairs and who might have refused to give evidence regardless of consequences. The plaintiff's own evidence is wholly unworthy of credit, as pointed out by the lower Court. The evidence of Allahdiya and other witnesses. of the defendant is sufficiently reliable as regards the circumstances in which, the plaintiff became a party to the reference and in which the award was given and accepted by all concerned. (After considering the evidence on this point the judgment proceeded). Accordingly we hold that the deed of wakf-alal-aulad was intelligently and voluntarily executed by the plaintiff.
14. The next question is whether the deed is valid. No question as regards its validity was raised in the Court below. In this Court, the advocate for the plaintiff impugned its validity on, grounds of law, and we allowed the question to be argued. We find that the so-called wakf is not a wakf in law at all. The dedication is not in perpetuity. As regards the management, it provides that the plaintiff shall be the 'mutawalli' of the property during her life. After her death her son Fazal Hasan Khan and after him one of the children would be the 'mutawalli:'
Otherwise Mt. Sughra Bibi or one of her children...will then be the 'mutawalli;' and failing him, the manager of the 'khanqah' of Syed Najmuddin (defendant 1) shall be the mutawalli.
15. The deed does not make any provision as regards mutawallis in future generations. Similarly the object of the wakf is limited to certain individuals named. Two houses are declared to be exempt from wakf. As regards the income of the rest, provision is made for repairs of the house, Income-tax, Municipal taxes, expenses in respect of a mosque, 'Rajbi Sharif,' 'Qurbani' on the occasion of Baqr Id and for expenses of Shabi Barat. The charities exhaust a very small part of the income of the property. The mutawalli is to get Rs. 30 as her allowance. Salary of a servant to the extent of Rs. 15 is allowed. The balance of Rs. 180 is to be divided between the son and the daughter in the proportion of 2 to 1. The deed proceeds to lay down that after the death of the plaintiff, Fazal Hasan would get the mutawalli's allowance and after him his 'children' and thereafter 'that person who will become mutawalli in my or his place shall get It.' The deed winds up by the statement that it is, in favour of 'children.' There is no provision that the allowances reserved for the son and daughter are to be distributed among their descendants generation after generation. It is possible that this was the intention of the parties to the deed; but it has not been anywhere expressed, and we are not at liberty to read words, to that effect in the deed. There is no provision that after the extinction of the line of the 'wakf' the income of the property is to be spent for the benefit of the poor. An ultimate gift of this nature is essential for the validity of a wakf-alal-aulad : see Irafan Ali v. Official Reciever Agra 1930 All 837. The 'wakf' as a 'wakf' is therefore void.
16. The document styled as a 'wakf' has been proved to be part of a family arrangement, as found by us. By an agreement by the plaintiff, her son and her daughter, it was settled that the property might be dedicated in the manner laid down in the deed in supersession of the award made by defendant 1, under which each party was to receive his or her share according to Mohamedan Law. The deed bears the signatures of all interested in the property. If the word 'wakf' had not been used in the document and if all of them had joined in the execution of an agreement containing exactly the same provisions as are found in the deed, there could be no doubt as to its validity as a family arrangement. The beneficiaries are living individuals or their immediate descendants. At any rate, the arrangement embodied in the deed is valid and binding on the parties to it. So far as the deed provides for payment of taxes and repairs to the house, no exception can be taken. The provision for charities amounts to a valid charge on the property. There is nothing illegal in the manager (erroneously 'described as 'muttawalli') receiving Rs. 30 a month as remuneration. There is again nothing invalid in the provision that the manager should pay Rs. 120 a month to the son and Rs. 60 a month to the daughter, neither of whom will be entitled to actual possession or to partition of the property during his or her life-time. The only provision that remains to be considered is that in respect of the salary of a servant. This is a legitimate provision, and may be validly included in a family settlement. As to whether it will be open to the descendants of Fazal Hasan Khan and Sughra Bibi, defendants 7 and 6, to partition the property is not a question which need be decided; nor is it necessary to decide whether the issues of Fazal Hasan and Sughra Bibi who do not now exist would be bound to act in accordance with the terms, of the deed. The plaintiff and her children have agreed as part of a family arrangement that the property shall be managed in a particular manner and the income thereof shall be disposed of in the manner stated in the document. There was consideration for such an agreement. The object of it was to prevent division of the property into small shares and to preserve peace and harmony in the family. This, case is amply covered by the decision of their Lordships of the Privy Council in Suleman Qadir v. Samiullah Khan 1922 P.C. 107. In that case also the wakf, as a wakf was invalid; but as the members of the family had agreed to accept its terms by a separate instrument, it was held that the provisions contained in the wakf deed were binding on the parties to the agreement.
17. In the view of the case taken by us, it is not strictly necessary to express any opinion on the findings returned by the Subordinate Judge, Mr. Malik, after remand; but as we heard arguments at length on those questions, we think it desirable to record our findings on those questions also. It is common ground that the sites of the four houses entered in the first list belonged to the plaintiff, who had inherited the houses standing thereon from her father. The evidence proves that those houses do not now exist and have been replaced by new houses since constructed. Having regard to the relations between the plaintiff and her husband, it is impossible to say that the entire amount spent on the new constructions belonged to the plaintiff or her husband. A sum of Rs. 12,000 originally belonging to Yar Hasan, was subsequently placed in the current account in the joint names, of Yar Hasan and the plaintiff. The Subordinate Judge thinks that, as the plaintiff could withdraw that amount and as it was spent on the constructions, the houses should be considered to be the property of the plaintiff. This line of argument may not be correct, but we are of opinion that Yar Hasan's conduct, is more consistent with the hypothesis that his intention was to allow his money to be spent for his wife's benefit. It is true there is no presumption of advancement where property belonging to a husband is made to stand in the name of the wife, but where, as in this case, the husband deposits his own money in the joint names of himself and his wife with drawability by either of them and the old houses belonging to the wife are demolished and replaced by new ones erected with the aid of such funds and old materials, it is a fair inference that the husband's intention was to make the wife, who was already the owner of the sites, to be the owner of the superstructures also.
18. As regards the house entered in list 2 which had been purchased in the name of the plaintiff, we agree with the Subordinate Judge that the evidence is not sufficient for a finding that the sale deed was 'benami.' The house was purchased for a comparatively small amount, which was well within the means of Mt. Latifan.
19. We also agree with the Subordinate Judge in holding that the defendant failed to prove the gift of the house entered in list 2 on the occasion of her marriage. This will however make no difference, as the family arrangement embodied in the 'wakf' has allotted that house to her.
20. The result of our findings is that the transaction embodied in the deed of wakf, dated 24th September 1926, is not valid as a wakf, but is valid as a family arrangement. The decree of the lower Court shall be modified as herein provided. In all the circumstances of the case, we direct that the parties pay their own costs in both Courts.