1. This is an appeal by an unsuccessful plaintiff whose suit for declaration of his right, title and interest over the disputed properties and recovery of possession thereof was dismissed by the Additional Subordinate Judge, Balasore. The suit properties originally belonged to Mallik Pancbu and two others, who by a registered deed of gift dated 18-10-43 (Ext. 1) transferred the same in favour of one Sultan Shah Darvesh. Darvesh possessed the properties till 30-1-50 when by a registered document described as a deed of gift (Ext. 2) he transferred the properties in favour of defendants Nos. 1 and 17 and delivered possession thereof to them. Thereafter Mallik Panchu and two others filed a suit (O. S. No. 58/50) in the Court of the Munsif, Bhadrak for setting aside Ext. I The suit was contested by defendants Nos. 1 and 17 and was ultimately dismissed. It was alleged in the plaint that to meet the expenses of litigation in that suit defendants Nos. 1 and 17 had incurred certain loans and with a view to raise funds to discharge the loans, they executed a sale deed (Ext. 4) in respect of the suit properties in favour of the plaintiff-appellant on 21-2-56 and delivered possession of the properties to him. After purchase the plaintiff constructed 3 pucca rooms on a portion of the suit lands and let them out to tenants and raised vegetables on the other portion Defendants Nos. 1 and 2 trespassed on the land on 1-11-58 and dispossessed the plaintiff therefrom as a result of which plaintiff suffered considerable loss by being deprived of the rent he was getting from the tenants and loss of crops he had grown over the suit lands. Ha therefore brought the suit for the reliefs mentioned above and for recovery of damages of Rs. 2070 towards loss of rent for two years and 10 months and Rs. 450 towards the price of the crops lost by him. As the Muslim public of the locality now claim the suit land as a religious place and had abetted the defendants Nos. 1 and 2 in committing the acts of trespass, the defendants Nos. 3 to 25 have been impleaded as representatives of the Muslim public. Defendant No. 26 is the Wakf Commissioner who has since registered the disputed property as wakf property.
2. Defendants Nos. 1 to 7, 14, 15 and 26 only contested the suit. They averred that Sultan Shah Darvesh was a staunch religious man and was a preacher of Islam. He kept himself engaged in different religious activities and was staying at Bhadrak. Mallik Panchu and two others out of reverence transferred the suit properties in favour of Sultan Shah Darvesh (Ext. 1) with the intention 'that he would carry on religious activities on the said lands. Darvesh formed a committee called 'Sirat Committee for management of the suit properties and defendants Nos. 1 and 17 were the Secretary and Joint Secretary respectively of that committee. Darvesh raised some funds from the Muslim public and started construction of some rooms on the lands for utilising them for religious purposes. Being convinced that defendants Nos. 1 and 17 would carry on religious activities on the lands, he executed the document (Ext. 2) in their favour which was described as a deed of gift directing therein that his dead body should be buried on the suit lands and a tomb constructed thereon. He further directed that 'gohar-kafan', 'Chalis fatia' and 'darud' be performed and the koran should be read and candles lighted and incense burnt in that place. It was therefore contended that by Ext. 2 a wakf had been created. Regarding O. S. No. 58/50 they contended that the expense for the litigation was met by defendants Nos. 1 and 17 from subscription raised by the Muslim public and it is not true that any loan was incurred for the purpose. In early 1956 when defendant No. 1 was seriously ill, defendant No. 17 who is his cousin proposed to him that a trust deed should be executed in respect of the suit properties and on defendant No. 1's agreeing to the proposal defendant No. 17 taking advantage of the simplicity, ignorance and illness of defendant No. 1 got the sale deed (Ext. 4) executed in favour of his own grandson the plaintiff, who was then only a college student. No consideration was paid under the sale deed and plaintiff had never got possession of the properties. As per directions of Darvesh contained in Ext. 2, the suit properties are being treated as wakf and used for religious purposes and consequently plaintiff is not entitled to the relief claimed by him.
8. The learned Subordinate Judge after a careful examination of the evidence and the law bearing on the subject held that under Ext. 2 a wakf was created; that the sale deed (Ext. 4) was not supported by consideration and was fraudulently got executed by defendant No, 17 in favour of his grandson, the plaintiff and that in any case the alienation of wakf properties was illegal and passed no title to the plaintiff. The learned Judge also found that excepting making vigorous attempt to gain possession of the properties the plaintiff was never in peaceful possession thereof and that it has not been proved that he had ever raised vegetables on the lands or let out the rooms constructed thereon to any tenant. In the result, he passed a decree dismissing the suit.
4. The main question for consideration in this appeal is whether the suit properties are wakf properties and this depends upon the construction of the document Ext. 2. The learned Subordinate Judge has at pages 182 and 183 of the paper book given an English rendering of the recital of Ext. 2 which are in Oriya and after comparing with the original we are satisfied that it is a correct translation. The executant of Ext. 2 is Sultan Shah Darvesh who described himself as a Mussalman by caste and servant of Islam by profession and the persons in whose favour it was executed are Sk. Alli defendant No. 1 and Sk. Barkatulla defendant No. 17, The document is described as Duttapatra (deed of gift) and runs as follows :
'That I the donor, am a member of Islamic faith and I am a great man in the matter of serving the said religion (Mahapurusa). You the donees have served me as my disciples and are strictly adhering to the Islamic religious tenets as Staunch Muslims. I have found your ardent zeal for the betterment of Islam and being convinced that you have the necessary zeal to advance the cause of Muslim religion and being further assured by you that you will bury my dead body on the below mentioned land (disputed properties) and commemorate my name by erecting my tomb thereon and being pleased with your conduct, I being in sound mind and health, out of my free will is executing this deed of gift, x x x x x x from today 1 make you the donees the proprietors in possession (Mallik Dakhalkar Karailu) and you and your heirs will continue to remain in possession of all the upper and inner surface of the land and pay rent to the landlords and get your names recorded in the settlement papers and in the zamindar's serista. You cannot alienate these properties but you can construct houses thereon. After my death you will bury my dead body in the land and according to the tenets of the Muslim religion perform 'gohar kafan, 'Chalis fatia' and 'Darud'. Further you will perform Sirini Fatia near my tomb and read koran there and place lighted candles near my tomb'.
5. Mr. R.N. Sinha for the appellant vehemently contended that Ext. 2 is an out and out deed of gift intended to benefit the donees and that this is clearly borne out by the fact that the property is given to the donees to be enjoyed by them and their successors-in-interest (Mallik Dakhalkar Karailu). He also contended that nowhere in the document the expression 'wakf' has been used and that the purposes mentioned therein are neither religious nor charitable. If properly construed the terms would indicate that certain ceremonies would be celebrated in connection with the death of the settlor and this cannot be deemed to be a purpose for which a valid wakf can be created. It was lastly contended that in order to constitute a valid wakf there must be dedication in favour of God which is absent in Ext. 2. Mr. Mohanty for the respondent on the other hand contended that the celebration of death anniversary of the settlor and the members of the family is a valid object for the creation of a wakf. He also relied on the fact that the settlor here is a religions preceptor and the preamble of the deed in question shows that the properties had been made over to defendants Nos. 1 and 17 because in the opinion of the settlor the latter were staunch Muslims who possessed the necessary zeal to advance the cause of Muslim religion and that this provides a key to the proper construction of the document. He further contended that the duties which the defendants Nos. 1 and 17 were enjoined to perform are such which under the Mussalman law are considered to be religious, pious or charitable.
6. Wakf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman law as religious, pious or charitable. Judicial decisions have recognized the following amongst others as valid objects for which a wakf can be created : - -
(i) celebrating the death anniversaries of the settlor and of the members of his family;
(ii) reading the koran in public places, and also at private houses;
(iii) performing the annual fateha of the settlor and of the members of his family;
(iv) a Durga or Shrine of a Pir which has long been held in veneration by the public. (See Para 178 of Mulla's Mahornedan Law, Fifteenth Edition). It is fundamental that a document should be construed as a whole, if, as is contended by Mr. Sinha, the expression 'Mallik Dakhalkar Karailu' in Ext. 2 means that an absolute estate has been conveyed to the donees, this cannot be reconciled with limitations imposed under the document that the donees cannot alienate these properties. It is also not consistent with the duties and obligations imposed on them. It is not permissible to single out one clause and to hold on the strength of it and without reference to the other clauses, that the interest conferred upon the donees was that of an absolute owner, and then reject the other clauses, which follow and which materially qualify the earlier clause, on the ground that they are repugnant to lull ownership conferred by the earlier clause. The cumulative effect of all the clauses should be considered to ascertain the intention of the testator. Regarding construction of documents executed in vernacular the Privy Council in AIR 1930 PC 242, Rajendra Prasad v. Gopal Prasad, observed :--- 'In England as also in India, even where a document is executed in vernacular, the fundamental rule of construction is the same. The duty of the Court is to ascertain the intention from the words used in the document. The Court is entitled and bound to bear in mind surrounding circumstances, but the Court does that only to ascertain the real intention of the executant from the words used by him. The surroundings of an Indian, his manners, his outlook proceeding from different religious and social customs are often different from those of an Englishman. Ordinarily documents executed by an Indian in his own language, particularly without any professional aid, are often expressed in loose and inaccurate language. All these considerations have to be borne in mind, and sometime by reasons of these aforesaid circumstances a more extended or restricted meaning may have to be given to particular words than their exact literal meaning permits, provided always that the context justifies it'.
In the case reported in AIR 1947 Oudh 17, Mt. Khurshed Jahan Begum v. Qamqam Ali a Will executed by Mt. Sikandar Begum came up for interpretation. There it was provided that after the death of the testator the legatee No. 1 would be the proprietor in possession of the entire property bequeathed and after him, legatees Nos. 2 and 3 would be proprietors in possession. It was further provided that after paying the taxes etc., due on the property whatever surplus was left would be spent in the testator's name in Giarahwin Sharif Moharram and Malud. Construing the document as a whole the Court held that under the terms of the will no proprietary right vested in Ismail Khan legatee No. 1 and that the property was dedicated to God though no specific mention of dedication was mentioned in the Will. That the use of the expression 'wakf is not necessary in a document creating a wakf and that it is not essential that there should be an express dedication of the properties in favour of the God is also laid down in a decision of the Patna High Court reported in AIR 1932 Pat 33, Muhammad Kazim v. Abi Saghir. Mohamad Noor and Scroope, JJ. observed in that case as follows :
'The requirement of a valid wakf Is a substantial dedication of the usufruct of the property to charitable, religious or good purposes as understood in the Mahomedan Law; no particular form is necessary; a wakf may be construed from royal grants of properties made in favour of individual persons as long as it was for perpetual, religious. charitable or good purposes; the dedicator need not use the word 'wakf' at all of may not formally transfer the properties to the ownership of God. If there is a substantial dedication to a valid object, it will not cease to be a wakf because some objects are mentioned which are not legal objects of wakf'. Their Lordships went to the extent of laying down that a grant to an individual, heritable by his descendants, may be a wakf in spite of the fact that the word 'wakf' is not mentioned and that there is no transfer of the property to God, provided there is a substantial dedication of the usufruct of the properly to charitable, religious or good purposes as understood in the Mahomedan Law, Sri Sinha relied on a decision of the Lahore High Court reported in AIR 1937 Lah 552, Zafar Hussain v. Mohammad Ghiasud-Din, and the decision of the Supreme Court in AIR 1963 SC 985, Zain Yar Jung v. Director of Endowments, in support of his contention that there should be clear dedication of the property in favour of the God in order to create a valid wakf. In the Lahore decision what the learned Judges said is that under the Mahomedan Law followed by the Hanafi sect even if no particular formality need be observed to make a wakf complete there must be unmistakable proof available that the owner made a clear declaration dedicating the property definitely and permanently to God. Immediately thereafter they observed that a wakf can also be created by user provided it is preceded by intention on the part of the owner to create wakf. It follows from this that what is material is the intention to create the wakf and not the express use of the words 'dedication of the property in favour of God'. There does not appear anything in the Supreme Court decision cited above to support Sri Sinha's contention. Their Lordships in that case were concerned with the broad question whether a trust deed executed by the Nizam of Hyderabad was a wakf to which the Wakf Act 1954 applies or whether it is a public charitable trust falling outside the said Act. In that connection their Lordships discussed the distinction between the Muslim law relating to trusts and the English law on the subject and said that the Muslim law owes its origin to a rule laid down by the Prophet of Islam; and means 'the tying up of the property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings' We are unable to see anything in the decision to indicate that a wakf cannot be valid unless there is an express dedication of the properties in favour of God. Mr. Sinha's contention that in the absence of an express dedication of the properties in favour of God, Ext. 2 cannot be treated as a valid deed of wakf, must therefore be rejected.
7. It was next contended by Mr. Sinha that the purposes mentioned in Ext. 2 are not religious, pious or charitable. In putting forward this contention he is definitely on a weaker ground. There is nothing in the document (Ext. 2) to show that any portion of the income of the properties would be utilised for purposes other than those mentioned there and the purposes so mentioned are 'after my death you will bury my dead body on the land and according to the tenets of the Muslim Religion perform 'gohar-kafan', 'Chalis fatia' and 'Darud', Further you will perform Sirini Fatia near my tomb and read koran there and place lighted candles near my tomb. 'According to P. W. 2 the word 'Gor Kafan' means that the dead body should be covered with a cloth and be buried. In case of a direction that one should perform 'Gor Kafan' all the ceremonies connected with burial of a dead body should be performed. The recital of koran near the cfead body is also a necessary part of the burial. The burial-ground is known as 'kabarsthan' or 'dargha'. The words 'Chalis Fathia', according to him, means that in the course of 30th to 40th day after the demise of a certain individual, certain fakirs and poor are fed and the holy Koran is recited. The word 'Darud' means that God be pleased on Prophet Mohamed and bestow his blessing on him. 'Sirini Fathia' means sweets are purchased and after recital of Koran, they are distributed amongst the persons present and amongst the children. It is well settled that the observance of the anniversaries of the death of the Wakif and members of his family, involving as it does the feeding of the poor, constitutes a valid object of the wakf: AIR 1944 Mad 504, Abdul Sattar Ismail v. Abdul Hamid and AIR 1930 Bom 191, Abdulsakur v. Abubakkar. The Madras decision referred to above also lays down that the reading of the Koran in public and private places cannot only be regarded as religious and pious but also as charitable, for tbe reading is for the benefit of all Mus-salmans. It, therefore, follows that the document Ex. 2, described loosely as a deed of gift, was executed by a devout Muslim popularly called a Darvesh in favour of defendants Nos. 1 and 17, whom he considered to be devout Muslims and persons who possessed the necessary zeal to advance the cause of Muslim religion, with a direction that they are to bury the settlor on; the property covered by the document and that Koran be read near the tomb, certain religious ceremonies under the Muhammadan law should be performed in connection with the obsequies and that on all such occasions sweets should be distributed amongst the persons present including the children. It further contains a direction regarding construction of houses there and evidence shows that such houses have been constructed, where fakirs and religious mendicants take shelter. We are, therefore, convinced on a construction of the document as also on consideration of the evidence on record that the disputed properties are being used in the manner and for the purpose mentioned in Ex. 2 and that under that document a valid wakf has been created notwithstanding the fact that there is no express dedication oi the properties in favour of God and it is loosely expressed that defendants Nos. 1 and 17 were to be proprietors in possession of the properties.
8. Mr. Sinha's alternative contention is that if Ex. 2 is not construed as a deed ot gift but it is held that properties covered by the document have been dedicated for religious, pious or charitable purpose, then it should be construed as a sadaqah. Such a contention is clearly unacceptable. The distinction between a wakf and sadaqah is that in the case of former the income only can be spent while in the case of the latter the corpus of the property may be consumed: AIR 1967 Orissa 55, Gulam Ali Saha v. Sultan Khan. There is nothing in Ex. 2 to indicate that the settlor intended that for the purposes mentioned by him in the document the entire corpus of the property can be, consumed. On the other hand, the direction in the document that the properties should not be alienated is a clear pointer to the intention of the settlor that the corpus of the property should be kept intact, and only the income thereof is spent for the purposes mentioned in the document. Our finding, therefore, is that Ex. 2 is a deed of wakf and that the properties comprised therein are wakf properties.
9. It is a well-settled principle of Muhammadan Law that in the absence of any express provision in the wakf deed a Mutawalli is not entitled to make any alienation of the wakf properties even for legal necessities without the permission of the Court. Admittedly, no such permission has been taken in this case and the wakf deed, far from containing any provision authorising alienation, contains a specific clause to the effect that the properties should not be alienated. That being the position, alienation of the wakf properties under the sale deed Ex. 4 in favour of the plaintiff is invalid and the plaintiff has not acquired any title to the suit properties hereunder. This finding is sufficient to dismiss the suit.
10-11. The learned Subordinate judge, however, has elaborately discussed the evidence bearing on the issue whether there was any necessity at all for the alienation and whether it was for consideration and answered them in the negative.
(After discussion of evidence his Lordship concluded.) We are satisfied on a consideration of the evidence on record that the finding of the learned Subordinate Judge on this point is also unassailable.
12. In the result, the appeal fails and is dismissed with costs.
G.K. Misra, J.
13. I agree.