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Muhammad Afzal and ors. Vs. Muhammad Mahmood and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in74Ind.Cas.343
AppellantMuhammad Afzal and ors.
RespondentMuhammad Mahmood and ors.
Excerpt:
construction of document - muhammadan law--gift in favour of private individual--gift, description of, as waqf, effect of. - - under the terms of the deed certain named persons' were to take the property becoming owners thereof immediately and they and their descendants after them were to enjoy the property for ever without any power to alienate......document in question is in law a deed of waqf other consequences follow. it is quite true that the word waqf is used in more than one place by the executant, in describing the document itself. on the other hand, there is nothing in the wording of the deed which can possibly be stretched so as to constitute a transfer of ownership in favour of the deity. it is expressly and in terms a gift to three specified persons. it has been contended before us that the use of word 'waqf' overrides all other terms in the document, and necessarily involves a transfer of ownership in favour of the deity such as is required to constitute a valid dedication under muhammadan law. we are not prepared to accept this contention. it has been urged once already in this court in connection with this very.....
Judgment:

1. The question raised by this appeal is whether a certain deed of the 27th of March 1880 was a waqf under Muhammadan Law, that is to say, a dedication of property for charitable and religious purposes, or was a gift in favour of certain specified individuals. Under the terms of the deed certain named persons' were to take the property becoming owners thereof immediately and they and their descendants after them were to enjoy the property for ever without any power to alienate. If it was in fact a transfer by way of gift in favour of these specified donees, then, as the Court below has rightly held, the condition against alienation fails and the descendants of the donees take the property with full ownership and power of alienation. If, on the other hand, the document in question is in law a deed of waqf other consequences follow. It is quite true that the word waqf is used in more than one place by the executant, in describing the document itself. On the other hand, there is nothing in the wording of the deed which can possibly be stretched so as to constitute a transfer of ownership in favour of the deity. It is expressly and in terms a gift to three specified persons. It has been contended before us that the use of word 'waqf' overrides all other terms in the document, and necessarily involves a transfer of ownership in favour of the deity such as is required to constitute a valid dedication under Muhammadan Law. We are not prepared to accept this contention. It has been urged once already in this Court in connection with this very document before a Bench of which one of us was a member, and was summarily rejected. The crucial passage, quoted from air. Syed Ameer Ali's book on Muhammadan Law, at page 217 of the 4th Edition is in the following words: 'when the word waqf or any of its synonyms in vogue, is used in making the consecration, the law fixes upon it all the legal incidents of a permanent and valid dedication.' This statement of principle implies that there must be a consecration, in the making of which the word waqf is used. It seems to us that what he have before us here is a gift in favour of private individuals, which the donor, in the course of the document, wrongly describes as a 'waqf.' We think this is a distinction of principle on which this case must he decided Agreeing with the decision of the Court below, we dismiss this appeal with costs.


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