1. The main question for consideration in this appeal is whether or not a valid wakf has been created under the preliminary and final decrees in the suit for administration of the estate of the deceased S. M. Zacharia Sait O. S. No. 159 of 1951, on the file of the Subordinate Judge's Court, Nilgiris. Zacharia Sait died in May 1950 without issues, leaving his widow Saffura Bai, two brothers S. A. Rahiman Sait and Ismail Sait and his sister Rabia Bai. The suit O. S. 159 of 1951, on the file of the Subordinate Judge's Court, Nilgiris, was filed by S. A. Rahiman Sait against the other heirs of his brother Zacharia Sait and some creditors of the estate of Zacharia Sait and it ended in a compromise as evidenced by the preliminary decree Ex. A-5 S. A. Rahiman Sait died on 14-2-1952 subsequent to the preliminary decree on 16-11-1951 and the present defendants 1 to 4 and the fifth plaintiff, who are the sons and daughters of S. A. Rahiman Sait, were impleaded as his legal representatives and as plaintiffs 2 to 6 in that suit. Saffura Bai, the widow of Zacharia Sait also died in 1953. On 14-2-1955 there was a final decree in O. S. 159 of 1951, on the file of the Subordinate Judge's Court, Nilgiris as evidenced by Ex. A-1. The decision in the suit depends on the finding on the point for determination whether a valid wakf has been created in respect of the suit properties by virtue of the following clause 6 of the final decree Ex. A-1 which almost is identical in terms; as clause 5 of the preliminary decree Ex. A-5 :
"It is further ordered and decreed that the plaintiff and the first defendant to take the following properties free from all encumbrances, for the purpose of constituting a proper and valid trust for establishment of a maternity hospital in the name of the deceased S. M. Zacharia Sait."
The present suit O. S. No. 104 of 1961, on the file of the Subordinate Judge's Court. Nilgiris has been filed by the widow, sons and daughter of Ismail Sait and one Hava Bai one of the daughters of S. A. Rahiman Sait against the other daughter and sons of S. A. Rahiman Sait and Rabia Bai, the sister of Zacharia Sait, for partition of the suit properties on the ground that there was no valid wakf. One Abdul Kareem, an agent of Zacharia Sait, was impleaded as the sixth defendant in the suit on the ground that he managed the estate of Zacharia Sait. The State Wakf Board, Madras, was impleaded as the 8th defendant in the suit. The suit was contested mainly by the State Wakf Board Madras, and the first defendant Abdul Rahiman Sait, son of S. A. Rahiman Sait. The learned Subordinate Judge found that a valid wakf was created by the decree in the prior suit for administration and held that the present suit was not maintainable for the said and other reasons and dismissed the same. Aggrieved with this decision, the fourth plaintiff Mariam Bai alone has preferred this appeal impleading the other parties to the suit as respondents.
2. In paragraph 6 of the plaint it is stated that the suit properties were taken by the two brothers, S. A. Rahiman Sait and Ismail Sait on account of their share in order to enable them to create the intended trust on a future date and that there was no immediate dedication of the said property by the two brothers to charity. But in paragraph 5 of the written statement of the contesting first defendant, which has been adopted by the State Wakf Board, it is specifically pleaded that the suit properties were given to the two brothers S. A. Rahiman Sait and Ismail Sait for the purpose of constituting a trust for the maternity benefit in memory of the late Zacharia Sait and the plaint allegation that the said properties came out of the share of the two brothers has been denied. In fact, the 7th defendant Rabia Bai, the sister of Zacharia Sait has pleaded that, by virtue of the compromise decree a valid trust was created and that if for any reason the Court finds that there was no valid dedication of the suit properties for a charitable purpose she is also entitled to a share in the suit properties. It is true each of the two brothers. S. A. Rahiman Sait and Ismail Sait took immovable properties worth Rs. 1,40,000, for their respective 6/20th share in the estate of Zacharia Sait. whereas the widow and sister of Zacharia Sait took immovable properties of the value of Rs. 2,00,000 and Rs. 1,20,000 for their 5/20 and 3/20 shares in the estate of Zacharia Sait. If the immovable properties of the estate of Zacharia Sait were worth Rs. 8 lakhs as would appear from the shares given to the widow and sister of Zacharia Sait, each of the two brothers S. A. Rahiman Sait and Ismail Sait should have got immovable properties of the value of Rs. 2,40,000. But it is not clear how the properties worth Rs. 1 lakh alone was set apart for the wakf in the administration suit as there should be a residue of properties worth Rs. 2 lakhs, if each of the two brothers, S. A. Rahiman Sait and Ismail Sait took properties worth Rs. 1,40,000 and left a balance of Rs. 1 lakh. Though the fact each of the two brothers S. A. Rahiman Sait and Ismail Sait took only immovable properties of the value of Rupees 1,40,000 in the estate of their brother Zacharia Sait might lend some support to the claim of the plaintiffs in the present suit that the suit properties were set apart for a trust from out of the properties to which the two brothers S. A. Rahiman Sait and Ismail Sait were entitled it is not possible to make any such inference from the terms of the compromise decree. It is not stated in the compromise decree that the suit properties were set apart for the wakf from out of the shares of the two brothers S. A. Rahiman Sait and Ismail Sait. Further, it is clear from the compromise decree that apart from the immovable properties allotted to the brothers there was an arrangement under which Ismail Sait had to collect the outstanding due to the estate of his brother Zacharia Sait and also discharge certain liabilities and pay some amount to his brother S. A. Rahiman Sait. The first defendant has pleaded in paragraph 6 of his written statement that the deceased Zacharia was very anxious to constitute a maternity charity and this was known to all the members of the family and the friends and legal advisers of Zacharia Sait and that it was in deference to such wishes that the maternity benefit charity was undertaken by the plaintiffs and the first defendant in O. S. 159 of 1951, on the file of the Subordinate Judge's Court, Nilgiris, and consented to by the other heirs of Zacharia Sait.
3. D.W. 1 Mohamed Jaffer Abdul Rahim Sait is the first defendant in the suit and he is the son of S. A. Rahiman Sait. He deposed that his father, who filed the suit for administration. told him and others that he wanted to create a trust in the name of his deceased brother Zacharia Sait who wanted to create a trust and in fact had created some trusts, that all the heirs of Zacharia Sait knew this and hence they agreed to the compromise which led to the preliminary decree and the final decree in the administration suit. P.W. 1 Razack Sait is the son-in-law of Ismail Sait. He claims to have been present at the time of the compromise talks in the prior suit. According to him S. A. Rahiman Sait gave out that he did not want the trust that Ismail Sait pressed him to agree and that in order to please him, S. A. Rahiman Sait agreed to the compromise. P.W. 2 Abdul Sathar Sait is the son of P.W. 1 and he also stated that no trust was created in accordance with the compromise in the prior suit. P.W. 1 was not a party to the compromise in the prior suit and P.W. 2 was only a lad of fifteen years at that time and their evidence has been rightly rejected by the learned Subordinate Judge. It is clear from the evidence of D.W. 2 Kalyanarama Iyer, the legal adviser of S. A. Rahiman Sait, that the compromise was brought about in pursuance of the agreement between the parties that certain properties should allotted to charity. When the evidence of P.W. 1 that S. A. Rahiman never wanted to create a trust, was put to him, he categorically stated that nothing could be farther from truth. Thus the setting apart of the suit properties for charitable trust in the prior administration suit was made in pursuance of an agreement between all the parties to that suit and it formed the basis of the compromise decree.
4. Though the compromise decree passed in the prior administration suit cannot operate as res judicata as a decision of a Court in a prior suit, the compromise decree is binding on all the parties to the administration suit and their representatives. In Bhanwarlal v. Rajababu, , it has been held that when a judgment has been given in a particular case, then in spite of the fact that such a judgment is given by consent the cause of action merges in the judgment and no further action can be brought on that cause except an appeal from that judgment or unless that judgment is set aside for collusion or otherwise. It is pointed out in that decision that what has been decided by that judgment is final and binding on the parties. Here, it has been held in the prior administration suit that the suit properties are trust or wakf properties and they were excluded from partition among the heirs of Zacharia Sait. It is no longer open to the heirs of the two brothers of Zacharia Sait to claim that the suit properties are not wakf properties and are available for partition.
5. The learned advocate for the appellant urged that the parties to the prior suit merely intended to create a wakf for the establishment of a maternity hospital and that this is not sufficient to constitute a valid wakf. In paragraph 188 at page 179 of Mullah's Principles of Mohammedan Law, it is stated that where there is neither a declaration of wakf nor delivery of possession a mere intention to set apart property for charitable purposes is not sufficient to create a wakf, even if the income of the properties is applied to the intended purpose. It is clear from paragraph 475 at page 499 of Tyabji's Muslim Law, 4th Edn, that a dedication by way of wakf may be either oral or in writing and that it may be in any appropriate words showing an intention to dedicate the property by way of wakf. Illustrations as to what constitutes such valid dedication are given at pages 500 and 501 of the book. A Muslim can endow properties to charities either by creating wakf recognized under Mohamedan law, or by creating a charitable trust. The distinction between wakfs recognized by Mohamedan law and public charitable trusts as contemplated by the Supreme Court in Zain Yar Jung v. Director of Endowments. . It is pointed out in the decision that though wakf is different from a secular trust of a public or religious character, there is no prohibition under the Muslim Law, against the creation of a trust of the latter kind. It has been held in several decisions that the use of the word 'wakf' is neither essential nor conclusive to show the intention to dedicate property. Thus in Abdul Razak v. Ali Baksh, AIR 1946 Lah 200, 208 it is pointed out that all Mohamedan jurists, old man new, are agreed that in order to constitute a valid wakf it is not necessary that the term wakf should be expressly used and that any implied expression is enough for the purpose. In Mohamed Kazim v. Abi Saghir, AIR 1932 Pat 33, 36 it is pointed out that the term 'wakf' literally means 'detention or stoppage' and the legal meaning of wakf according to the accepted doctrine of the Hanafi school is the extinction of the proprietor's ownership in the thing dedicated and its detention in the implied ownership of God in such a manner that the profits may revert to and be applied for the benefit of mankind. It is clear from the same page that the appropriation of land or other property to pious and charitable purposes in sufficient to constitute a wakf without the express use of the term in the grant. The essentials of a valid wakf are clearly stated in that decision. In Haji Ishak v. Faiz Mohammed, AIR 1943 Sind 134, 140, Tyabji, J. has explained the meaning of the term wakf and pointed out that a wakf means property dedicated to God and that such a dedication can only be for charitable purposes. It is clear from the decision that according to the Muslim law a valid wakf is completed as soon as the waqif makes a declaration intending thereby to effect such a dedication in good faith with a real intention of divesting himself of the ownership of the property and that the use of the word wakf is not essential and that any appropriate words clearly showing such an intention are sufficient. It is pointed out in the decision that the words 'this my land is endowed for the poor' 'this my land is waqf' 'this my land is endowed for meritorious purposes' have been held to be sufficient to constitute a valid wakf. In P. Kutti Umma v. Nedungadi Bank Ltd., ILR (1938) Mad 148 = (AIR 1937 Mad 731) it has been held by a Bench of this Court that according to both the Shafi and Hanafi schools of Mahomedan Law, delivery of possession is not necessary to validate a wakf which is otherwise valid. But as pointed out in Banubi v. Narsinga Rao, (1907) ILR 31 Bom 250 where there has been no actual delivery, a reasonably clear declaration is necessary to create a wakf. In Shah Md. Naim Ata v. Shamshuddin, AIR 1927 Oudh 113, it has been held that so long as it appears that the intention of the donor was to set apart specific property or the proceeds thereof for the maintenance or support in perpetuity of a specific object or a series of objects recognized as pious by the Mussalman Law, it amounts to a valid and binding dedication.
6. We shall proceed to discuss the facts of this case bearing the above principles in mind. Clause 5 of the preliminary decree and the corresponding clause 6 of the final decree in the prior suit clearly provide that the two brothers of the deceased Zacharia Sait should take the suit properties free of all encumbrances for the purpose of constituting a proper and valid trust for the establishment of a maternity hospital in the name of Zacharia Sait. Paragraph 10 of the preliminary decree and the corresponding paragraph 11 of the final decree show that the properties were set apart for the aforesaid charity and the first defendant was directed to keep the other heirs and the said properties indemnified against all mortgage debts and all sums due to the municipal councils, the Government or the Central Excise department the Indian Coffee Board and the Income-tax department. It is abundantly clear that all the heirs of Zacharia Sait have agreed to constitute two among themselves, namely, S. A. Rahiman Sait and Ismail Sait as trustees in respect of the suit properties set apart for the trust for the charitable object of establishing a maternity hospital in the name of the deceased Zacharia Sait. Thus the heirs of Zacharia Sait divested themselves of any right to share the properties, which have been so set apart for the charitable trust.
7. The distinction between a mere intention to create a trust and a declaration of trust is clearly brought out in the following passage at page 27 of "Lewin on Trusts" 16th Edition :--
"A trust is not perfectly created where there is a mere intention of creating a trust, or a voluntary agreement to do so, and the settler himself contemplates some further act for the purpose of giving it completion. On the other hand, if the settler proposes to convert himself into a trustee, then the trust is perfectly created and will be enforced as soon as the settler has executed an express declaration of trust, intended to be final and binding upon him' and in this case it is immaterial whether the nature of the property be legal or equitable and whether it be capable or incapable of transfer. In all cases where a declaration of trust is relied on the Court must be satisfied that a present irrevocable declaration has been made." It could not be said that the heirs of Zacharia Sait or two of them namely S. A. Rahiman Sait and Ismail Sait, merely expressed their intention to establish a charitable trust without actually creating a trust, or that they reserved any right to revoke the trust. If the parties entertained the idea of the properties reverting to the estate of Zacharia Sait as private properties, they should have made a clear provision in the compromise for the disposal or division of the same among the heirs. The following passage at page 56 of "Tudor on Charities" 5th Edn. dealing with the creation and effect of charitable bequests is relevant for the present discussion :
"Where a person knowing that a testator in making a disposition in his favor intends it to be applied for purposes other than his own benefit, either expressly promises, or by silence implies, that he will carry the testator's intention into effect, and the property is left to him upon the faith of that promise or undertaking, it is, in effect, a case of trust...................... In such a case therefore, the donee, being affected with a trust, cannot take beneficially."
Thus S. A. Rahiman Sait and Ismail Sait, who were allowed to take the properties set apart for the establishment of a maternity hospital cannot be allowed to claim beneficial interest in the said properties as owners. Thus clause 5 of the preliminary decree and clause 6 of the final decree cannot be considered merely as a declaration of the promise by the heirs of Zacharia Sait to constitute a charitable trust, which could be either revoked or held to be inoperative. There can be no doubt that there is a clear declaration by the heirs of Zacharia Sait to create a wakf and in fact they have agreed and set apart immovable properties for the charitable trust.
8. The fact that the charitable trust was created for the establishment of a maternity hospital in future cannot also detract from the validity of the trust or wakf. In Underhill's 'Law relating to Trusts and Trustees'. 12th Edn. at pages 158 and 159, it is stated that in the construction of executory trusts, the Court is not confined to the languages used and that where, therefore, such language is improper or informal or would create an illegal trust, or one which is impossible to execute or would otherwise defeat the settler's intentions, as gathered from the motives which led to the settlement, and from its general object and purpose, or from other instruments to which it refers, or from any circumstances which any have influenced the settler's mind the Court will direct a settlement to be executed in such from as will best answer the intent of the parties. In AIR 1946 Lah 200 at p. 208, it is pointed out that a wakf created by a will is as valid under Mohamedan Law as a wakf created during the lifetime of the wakif. The following passage in the judgment of Sir George Rankin in Mahabir Prasad v. Mustafa Hussain. AIR 1937 PC 174 has been quoted in the above decision as showing the distinction between wasiyat, bil and wakf, that is testamentary direction to heirs for wakf, and wakf bit wasiyat, that is wakf suspended or contingent upon death of wakif, as one of form and not of substance :
"This distinction much discussed in Agha Ali Khan v. Altaf Hasan Khan, (1892) ILR 14 All 429 (FB) and Baker Ali v. Anjuman Ara Begum, (1903)30 Ind App 94(PC) lost much of its importance by the decision of this Board in the latter case. The distinction is one of form and not of substance as Sir Arthur Wilson therein explained. It is between a will which conveys the property on the death of a testator to the mutavalli as wakf or at least impresses the property with the character of wakf immediately on the testator's death, and a will which makes a gift of property with a direction to the donee to create the wakf desired, or to give a direction to the heir, executor, or other representative to that effect."
Thus even if the relevant clause in the preliminary and final decree is construed as creating only an executory charitable trust, it cannot be ignored as invalid. Obviously charitable trusts created with the object of starting a school or a college, or constructing a new church, mosque or a temple or establishing a hospital as in this case are all cases where the charitable objects have to be carried out in future and the fact that such objects have not been carried out is not a ground for attacking the validity of such charitable bequests or trust. It is true S. A. Rahiman Sait and Ismail Sait made no attempt to carry out the objects of the charitable trust during their lifetime. In Mohammed Afzal v. Din Mohammed. AIR 1947 Lah 117 at p. 126 it is observed that subsequent act may and very frequently do amount to a breach of trust, but from a breach it is impossible to argue that there never was a trust created. It is pointed out in the decision that though an element in determining whether a trust has or has not been created the fact that the intentions in a deed have not been carried out, or in other words, the trust has not been acted upon, does not necessary show that a valid trust was not created.
9. The learned advocate for the appellant relied on paragraph 187 at page 181 of Mulla's Principles of Mohamedan Law 16th Edn. where it is stated that a wakfnama by which immovable property of the value of Rs. 100 and upwards is dedicated by way of wakf requires to be registered under the Indian Registration Act. 1908 though the wakif (dedicator) may have constituted himself sole mutavalli thereof. But the wakf in this case was created by a decree of Court by setting apart some of the suit properties for the charitable trust as agreed to by the parties. Such a decree is exempt from registration by virtue of Section 17(2)(vi) of the Registration Act. In Annapurnamma v. P. L. Swami, 1948-2 Mad LJ 475 = (AIR 1949 Mad 245) Horwill, J. held that a compromise decree in a prior suit in which immovable property was also the subject-matter did not require registration by reason of Section 17(2)(vi) of the Registration Act and that it was admissible in the subsequent suit between the same parties. In Muthukrishna Chetti v. Meenakshiammal , Jagadisan, J. has held that the
effect of clause (vi) of Section 17(2) of the Registration Act is to limit its operation to any decree or order of a Court except a decree or order which is the result of a compromise and which comprises immovable property extraneous to the suit or proceeding which ended in the compromises; in other words a compromise decree comprising immovable property forming the subject-matter of the suit is exempt from registration.
10. The learned advocate for the appellant relied on the decision in Govindram v. Madangopal, AIR 1945 PC 74, where it was held that though Section 17(2)(i) of the Registration Act exempts a composition deed, it did not mean that if the document required registration under any other enactment it was valid without registration. The Privy Council held that y virtue of Section 5 of the Indian Trusts Act, the composition deed required registration as a deed of trust. It is pointed out in the decision that Section 17(2) merely provides that nothing in clauses (b) and (c) of sub-section (1) applies to any composition deed and hence if the deed required registration under any other law, the exception cannot be invoked. The Trusts Act applies only to private trusts and hence the requirement in Section 5 of the Trusts Act that a trust deed relating to immovable property should be registered could apply only to such trust. In the absence of any other provision, a deed of public trust relating to immovable property would require registration only under Sec 17(1)(b) of the Registration Act. It is clear from paragraph 187 at page 181 of Mulla's Principles of Mohamedan Law. 16th Edn that a wakfnama required registration only under Section 17(1)(b) of the Registration Act. But by virtue of Section 17(2)(vi) of that Act. wakfs created by decrees of Courts as in the present case, are clearly exempt from registration. Thus the above Privy Council decision relied on by the learned advocate for the appellant is clearly distinguishable as a deed of wakf or a public charitable trust is not required to be registered under any other law. Further we have already noticed the distinction between wakf and trust and clearly pointed out that the charitable trust created in this case is a wakf.
11. In it has been held that in order to invoke the
Wakf Act. the purpose for which a wakf has been created must be one which is recognized by Muslim law as pious, religious or charitable and the objects of public utility which may constitute beneficiaries under the wakf must be objects for the benefit of the Muslim community and that the wakfs with which the Act deals are trusts which are treated as wakfs under the definition of Section 3(1) of the Wakf Act of 1954 and as such, a trust which does not satisfy the tests prescribed by the said definition would be outside the Act. This decision has been followed in Kassimiah Charities v. Secy., Madras State Wakf Board, . But the Wakf Act of 1954 has been amended by Act 34 of 1964 under which the definitions of 'beneficiary' and 'wakf' have been amended by including wakf sanctioned by the Muslim law as coming under the Wakf Act. In Syed Edulla Saheb v. Madras State Wakf Board, , Kailasam, J. has held that the coming into force of Act XXXIV of 1964 amending the Wakf Act of 1954 will have to be taken into account and that the donation of an immovable property even though by a person not professing Islam. would be a wakf, if the other conditions are fulfilled. Thus the definitions as amended have retrospective effect and apply to the wakf in this case. In fact, the learned advocate for the appellant did not dispute the fact that if the charitable bequest created in this case is a wakf, it would come under the Wakf Act, though the beneficiaries of the wakf may include non-Muslims.
12. The learned Subordinate Judge has held that by virtue of Section 6 of the Muslim Wakf Act 20 of 1954, the present suit is barred by limitation as the plaintiffs did not file the suit within one year of the publication of the list of wakfs It is really unnecessary to decide this question in view of our decision on the merits of the claim of the appellant. In Syed Hussain v. State Wakf Board, W. P. No. 1142 of 1966 (Mad). Alagiriswami, J. has held that a publication in the Gazette merely giving the details of the wakf without making any reference to the properties is really no notice to the owners of the properties and in that view, he held that the notification cannot affect the properties of the writ petitioner. In Abdul Kareem v. Special Officer, Wakfs, Madras, Raghavan, J. has followed the above decision of Alagiriswami, J. and held that in proceedings to notify a wakf under the Wakf Act, notice of the enquiry must be given to the persons affected like the mutavalli. He also held relying on the above decision of Alagiriswami, J. that mere publication in the Gazette is not sufficient notice.In Akkoor Levvai Sahib v. Madras State Wakf Board, S. A. No. 1047 to 1049 of 1968 and 1529 to 1531 of 1969 (Mad) and (Akkoor Levvai Sahib v. Muslim Dharma Paripalana Sangam), A. A. A. O. No. 26 of 1968 (Mad) Ismail, J. referring to the provisions of S. 6(1) of the Wakf Act, upheld the decision of the Courts below that the suits were barred by limitation on the ground that the parties were fully aware that the properties were treated as wakf properties at the enquiry conducted by the Assistant Commissioner. He held that the language of Section 6(1) of the Wakf Act applied to the facts of that case and that the suit before him would come within the scope of that provision and consequently they would be barred by limitation. The learned Judge followed the decisions of Veeraswami, J., as he then was, in (Khaja Bi v. Madras State, Wakf Board) W. P. No. 886 of 1962 of Venkatadri, J. in W. P. No. 1302 of 1953, of a Bench of this Court in (K. Abdul Rasheed v. State Wakf Board). W. A. No. 144 of 1966 (Mad) and of Ramakrishnan, J. in Syed Mustafa Peeran Sahib v. State Wakf Board, . It should be noted that in the present case, S. A.
Rahiman Sait and Ismail Sait were the only trustees appointed to carry out the charitable trust under the terms of the preliminary and final decrees. S. A. Rahiman Sait died on 14-2-1952 and the sole surviving trustee Ismail Sait had notice of the proceedings before the Wakf Board and in fact, he gave the statement Ex. B-1 before the Assistant Commissioner for Wakfs, Nilgiris, Ootacamund. Thus it could not be said that notice was not given of the proceedings of the Wakf Board to the trustees of the Charitable endowments. The finding of the learned Subordinate Judge that the suit is barred by limitation is therefore correct.
13. The decree and judgment of the learned Subordinate Judge are correct and they are confirmed and the appeal is dismissed with costs of the contesting respondent.
14. Appeal dismissed.