1. One' Chaudhri Ghulam Hamid died, somewhere in 1877, possessed of considerable landed property. On July 16th, 1879, his heirs executed what is in substance a deed of partition dividing amongst themselves the property of the deceased, with the exception of a certain share in village Nagar, which they admitted to have been dedicated by Chaudhri Ghulam Hamid, in his life-time, to a certain religious purpose. Under the terms of the deed of partition, Musammat Riazunnissa, one of the widows of the deceased, obtained possession of certain property In village Sirsa Dabri. This is described in the specification appended to the deed as consisting of a certain share in the zemindari of the village, together with a certain area of muafi land. On August 8th, 1905, this lady, purporting to act as proprietor, co-sharer and muafidar of village Sirsa Dabri, executed in favour of Gulzari Lal and Shib Charan Lal a twenty years' lease of some three biswas and odd of her zemindari share together with 32 bighas and 4 biswas of the muafi land. The lessees were to pay the Government revenue and other expenses and were to pay the lessor a net rent of Rs. 60 per annum. On May 25th, 1909, Musammat Riazunnissa aforesaid executed in favour of Chaudhri Ghulam Hazrat a deed which is described as a tamliknama and sipurdnama by which she purported to transfer to him whatever rights she herself possessed in the zemindari share or in the muafi lands in village Sirsa Dabri. This Chaudhri Ghulam Hazrat is a son of Chaudhri Ghulam Hamid by another wife, and on the face of it, Musammat Riazunnissa's deed of May 25, 1909, purports to be a transfer in his favour without consideration. It is significant, however, that on May 25, 1909, Ghulam Hazrat, in his turn, executed a deed by which he covenanted to pay Musammat Riazuanissa the sum of Rs. 60 per annum for her life as a consideration for the transfer made in his favour. The present suit was filed on July 1, 1910, Chaudhri Ghulam Hazrat being the plaintiff and the defendants being Gulzari Lal and Shib Charan Lal, the lessees and Musammat Riazunnissa the lessor under the deed of August 8th, 1905. The relief sought is possession of the 32 bighas, 4 biswas of muafi land, together with a declaration that the lease of August 8th, 1905 is ineffectual in so far as it relates to this particular land. This relief was sought substantially upon two grounds. In the first place, the plaintiff pleaded that the execution by Musammat Riaz-un-nissa of the lease of August 8th, 1905, was obtained by undue influence, misrepresentation and fraud. The particular fraud alleged was that the defendants, Gulzari Lal and Shib Charan Lal, had obtained the inclusion of the 32 bighas, 4 biswas of muafi land in the lease in question, without explaining the fact that they were doing so,to Musammat Riaz-un-nisa, the lessor. It was pleaded, in this connection, that the value of the entire property leased was such as to make the annual rental of Rs. 60 altogether inadequate. In the second place, it was contended that the 32 bighas, 4 biswas of muafi land appertained to a wakf created by the heirs of Ghulam Hamid under the terms of the deed of July, 16, 1879 already referred to. The plaintiff contended that Musammat Riaz-un-nisssa was in possession of this particular area merely as mutwalli of the aforesaid wakf and that in this capacity, she had no right to grant a lease of the wakf property for any period exceeding three years. The plaintiff's case further was that he had succeeded Riaz-un-nissa as mutawalli by virtue of the deed of May 25th, 1909, in his favour, and that he was, therefore, entitled to sue for possession in his capacity as mutwalli and for cancellation of the lease granted by his predecessor-in-office so far as that lease included property appertaining to the wakf.
2. In so far as the suit was based upon allegations of undue influence, misrepresentation or fraud, it is concluded against the plaintiff by the findings of fact arrived at by the lower Appellate Court. In the memorandum of appeal to this Court, the only paragraph referring to this part of the case is paragraph 6, in which it is suggested that the Court below might have arrived at a different conclusion on the point, if it had properly considered the principles of law ordinarily applied by the Courts in India to transactions in which one of the parties is a pardanashin lady. With regard to this point, I see no reason for holding that the learned District Judge has failed adequately to consider the position of Musammat Riaz-un-nissa. The plaintiff's case regarding these pleas of undue influence, misrepresentation and fraud was of the flimsiest character, and I do not see that any evidence was led which could be regarded as having the effect of shifting the burden of proof on to the defendants. If the plaintiff himself had seriously believed in his own allegations of fraud, he would have sued for the cancellation of the entire contract of lease, and not merely of the portion of it, relating to the muafi land. Moreover, there is against the plaintiff a clear finding of limitation as affecting this part of the case. In so far as relief is sought on the ground of fraud, the suit would be governed by Article 95 of the first Schedule to the Indian Limitation Act. The prescribed period of limitation would begin to run from the time when the fraud became known to the party wronged. There is no allegation regarding Musmmat Riaz-un-nissa's having come to know after execution of the lease of any fact which convinced her that she had been wronged, and as regards Ghulam Hazrat himself, the learned District Judge entirely refused to accept his assertion that he only came to know of the lease after the transfer in his favour, but was of opinion that he must have known of it all along.
3. The other part of the plaintiff's case depends on the question whether the 32 bighss, 5 biswas of muafi, land in question were made the subject of a valid wakf, by the heirs of Chaudhri Ghulam Hamid, as alleged in paragraph 1 of the plaint. It must be conceded to the appellant that no form of words is prescribed by Muhammadan Law as necessary to the creation of a valid wakf, and there may be an actual dedication of specific property to religious or charitable purposes, without any such words as wakf, or 'mutwalli' being employed. The deed of July 16th, 1879, contains a recital by Musarnmat Riaz-un-nissa, that out of all the property assigned to her under this deed of partition, she will undertake to spend the income of the muafi, land in Sirsa Dabri ' on the tomb and the fateha and urs ceremonies of the deceased Chaudhri, and in paying the salary of the hafiz who will read the Quran at the tomb of the deceased Chaudhri.' There is also a special provision that her daughter Musammat Irshad Batul shall after her death become the owner of the property in the same way, and shall defray the aforesaid expenses. Then, finally, comes a provision that in certain events, the other heirs of Chaudhri Ghulam Hamid shall have powers to take possession of the property allotted to Musammat Riaz-un-nissa and to defray the expenses afore-mentioned out of the income of the same.
4. It should be noted that Musammat Riaz-un-nissa also binds herself not to use the income of these muafi, lands in any other way or to transfer the same by sale, mortgage or hypothecation.
5. In my opinion, this is a document of doubtful interpretation. It certainly does not contain any words which definitely and expressly alienate the corpus of the property concerned and dedicate the same to the Almighty. It is at least open to the argument that it is possible to regard it as nothing more than an expression by Musammat Riaz-un-nissa of her pious intention to devote the income of a portion of the property assigned to her on partition to certain specific purposes of a more or less pious or religious nature, and a desire on her part that the same use of this income may continue to be made after his death. It seems to me that a somewhat similar question wad before a Bench of this Court in the case of Fakhruddin Shah v. Kifayatullah 7 A.L.J. 1095 : 8 Ind. Cas. 578. There the question was as to an alleged oral dedication and the Court had to consider whether the evidence as to what was actually done in consequence of the alleged oral dedication was of such a nature as to justify the inference that there had in fact been a valid wakf. I think this case is very similar, except that I have to deal with a document of doubtful interpretation, instead of with an alleged oral dedication. I take it that it must have been because he took substantially some such view of the case as this that my learned predecessor thought it advisable not to decide this appeal without calling for a finding from the Court below upon the following issue: Has the income of the property been appropriated for the objects set out in the 'document of 1897 or is the alleged wakf illusory? Upon this issue the lower Appellate Court has returned a clear finding that it has not been proved that the income of the property was appropriated for objects 'set out in the document of 1879. That finding is binding upon me in second appeal, and it is certainly borne out by a curious passage in Musammnat Riaz-un-nissa's deed of May 25th, 1909, in which she states that owing to the fact that some of the property assigned to her under the partition deed of 1879, was in the possession of a mortgagee, the actual expenditure in connection with the tomb of Chaudhri Ghulam Hamid, and the fateha and urs ceremonies and readings of the Quran connected therewith, was being defrayed by Chaudri Ghulam Hazrat out of his own pocket. The wording of this entire deed of May 25th, 1909, deserves to be carefully considered. It is, to say the least of it, ambiguous. It seems to me more consistent with the notion that Musammat Riaz-uu-nissa was transferring certain property to her step-son, subject to the condition that he would apply a portion of the income thereof in a particular way than with any such notion as that of her resigning the post of mutwalli of a wakf and appointing Chaudhri Ghulam Hazrat as her successor. If the facts were as contended for by the appellant, I should have had expected the two transactions, viz., the transfer of proprietary title as regards the property which was admittedly not wakf, and the appointment of a new mutwalli for the wakf property to have been effected by, two different deeds, or at the very least not to have been confounded together in the way in which they have been in the present document. On these grounds, I accept the finding of the Court below, that it is not proved that the 32 bighas, 4 biswas of muafi land in suit have been made the subject of a valid wakf.
6. There is yet another contention on behalf or the appellant which deserves notice. By the fifth paragraph of the memorandum of appeal, it is suggested that the partition deed of July 16th, 1879, was at least a family arrangement and that Musammat Riaz-un-nissa was bound by the covenant against alienation in respect of these muafi, lands, even if that be regarded as nothing more than a covenant entered into by her towards the other heirs of Chaudhri Ghulam Hamid. This contention is not without force and might require to be considered in the event of a suit brought after Musammat Riaz-un-nissa's death. But I can see nothing in the covenant against alienation, which would prevent Musammat Riaz-un-nissa, from effecting an alienation which should be valid for the term of her own life. Moreover, once it has been found that the land in suit has cot been made the subject of a valid wakf, the plaintiff loses his locus standi. He is at most a transferee of Musammat Riaz-un-nissa, and the objection that she had no right of transfer sounds oddly in his mouth. Moreover as a transferee of Musammat Riaz-un-nissa, he could not assail this transaction of lease upon any ground which would not have been open to the lady herself. This appeal, therefore, fails and I accordingly dismiss it with costs, including fees on the higher scale.