Skip to content


Minnat Ali and anr. Vs. Nabendra Kishore Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal253
AppellantMinnat Ali and anr.
RespondentNabendra Kishore Roy and ors.
Cases ReferredKulsom Bibi v. Golam Hossain Cassim Ariff
Excerpt:
- .....other claims of other personsand thatit is clear that the disputed property was never treated as waqf property and it was treated as secular property of kamarali patari and after his death it descended to his heirs as secular property and treated by them as secular property.4. the learned judge, in the concluding portion of his judgment observes as follows:there can be no doubt that the wakfnama created by kamarali patari was a sham colourable transaction and it was not intended to be acted upon and it was not given effect to by kamar ali or by plaintiffs and they all treated the properties covered by the deed of waqf as their secular properties and enjoyed them as such and not for the upkeep and maintenance of the mosque.5. it is contended by the learned vakil for the appellants that.....
Judgment:

1. This appeal arises out of a suit for a declaration of the plaintiffs' title as mutwallis to certain waqf and also for other reliefs.

2. The Court of first instance gave a decree to the plaintiffs. On appeal that decree was reversed and the plaintiffs have appealed to this Court.

3. The Court of appeal below found that

the waqf was a collusive paper transaction intended to keep the properties covered by the waqfnama safe from the claims of any possible future creditor or other claims of other persons

and that

it is clear that the disputed property was never treated as waqf property and it was treated as secular property of Kamarali Patari and after his death it descended to his heirs as secular property and treated by them as secular property.

4. The learned Judge, in the concluding portion of his judgment observes as follows:

There can be no doubt that the wakfnama created by Kamarali Patari was a sham colourable transaction and it was not intended to be acted upon and it was not given effect to by Kamar Ali or by plaintiffs and they all treated the properties covered by the deed of waqf as their secular properties and enjoyed them as such and not for the upkeep and maintenance of the mosque.

5. It is contended by the learned vakil for the appellants that under the Mahomdan law it is not open to any person to impugn the validity of a waqfnama once it is executed and registered, provided that it purports to be an absolute dedication. The learned vakil has relied upon the head-notes in the judgment in the case of Kulsom Bibi v. Golam Hossain Cassim Ariff [1906] 10 C.W.N. 449, where it is stated that

in a suit for setting aside a waqfnama on the ground that the trusts are illusory and that there has been no substantial dedication to religious and charitable trusts, the question before the Court is whether there was a real intention to give effect to the document as a waqfnama. The intention of the settlor must be gathered from the document itself. If the waqf was formally constituted and perfected and established by its terms a substantial charitable trust it is wholly immaterial whether its provisions were carried out or not, for that is a matter of breach of trust only. Evidence given to show that it was never intended to give effect to the trusts and that in fact they were not given effect to is irrelevant in such a suit. Evidence, however, showing the manner in which the document is related to existing facts, e.g., the value and state of the waqf properties, is relevant.

6. These general statements, however, should be considered along with the facts of the case. It appears that these observations were made in that case with reference to a person who was claiming under the settlor. At p. 484, the learned Judge (Woodroffe, J.,) observes:

Nor in the present case can the evidence be said to be admissible for the purpose of invalidating the documents, for if a waqf executed with the necessary formalities and otherwise validly constituted establishes by its terms a substantial trust in favour of the public, it is not open to the settlor or those claiming under him to say that though the document by its terms evidences an intention to make a trust, he the settlor never intended to carry it out and in fact never did so. So here there is no dispute that the documents were executed and registered and I find that if possession is necessary it was given. If that document creates a trust in favour of the public and if (point with which I will next deal) that trust is the primary object of the settlor and is of a substantial character it appears to be quite beyond the powers of the settlor or those claiming under him to say : 'I have said I have made a trust, but I never intended one and thus to wrest from a third party, the public, the benefit which by the express terms of his deed he has bestowed, on them. In my opinion, therefore, the evidence given to show that it was never intended to give effect to the trusts and that in fact they were not given effect to is in this case irrelevant. The intention of the Settlor must be gathered from the documents themselves.

7. The observation, therefore, has reference to a case between the trusts and the settlor or persons claiming under him, and in such a case no evidence is admissible to prove that it was not intended to be acted upon and the question of intension is to be determined, not upon any extraneous evidence, but upon the intensions as appearing from the document itself. In the case of Hazi Mahamed Nagor v. Abdul Jalil the learned Judges observe that

these waqfs have been created by documents, and it seems to us that the language employed in them is not ambiguous. The documents in terms establish religious and charitable trusts and evidence is not, therefore, admissible to show that the settlor had no intention to give, effect to the trusts or that the trusts were not in fact given effect to. That was decided in the case of Kulsom Bibi v. Golam Hossain Cassim Ariff [1916] 31 M.L.J. 431.

8. In that case also it was the brother of the settlor who was inpugning the validity of the waqf. We nave not been referred to any authority where it is laid down that a person who does not claim through the settlor is not entitled by reason of any rule of Mahomedan law to challenge the validity of a waqf on the ground that it was merely an illusory transaction and was never intended to be acted upon. In the present case we have seen that the finding of the learned Judge was that

the waqf was a collusive paper transaction intended to keep the properties covered by the waqfnama safe from the claims of any possible future creditor or other claims of other persons.

9. The defendants in the present case are purchasers of some portion of the properties at a sale for arrears of Government revenue. They do not claim in any way under the settlor. The learned pleader for the respondents has referred to the case of Mulla Veettil Ussain v. Subramania Aiyar [1916] 31 M.L.J. 431, where the learned Judges referred to the case of Kulsom Bibi v. Golam Hossain Cassim Ariff [1906] 10 C.W.N. 449 and observed:

With all respect we think that those observations are too broadly expressed. In cases where the question is whether there has been a real dedication, the production of a registered instrument in writing making a transfer of the property would no doubt be strong prima facie. evidence of such dedication. But we think it is competent to parties interested in the matter to prove that the instrument was merely nominal and that in fact there was no real dedication.

10. We do not think that there is anything in the Mahomedan law which permits a Mahomedan to defeat his creditors merely by executing and registering a waqfnama although he never intends to give effect to it as a waqf.

11. It appears that the defendants purchased the zamindari within which the alleged waqf property is held as a tenure. The defendants after purchasing the zamindari at a sale held under Act 11 of 1859, brought a suit for annulment of the tenure and obtained a decree for possession against the present plaintiffs 1 and 2. The suit, however, was instituted against them in their personal capacity and not as mutwallis. The suit was decided ex-parte. Plaintiff 2 got the exparte decree set aside and the suit was re-heard. It appears that plaintiff 2 claimed the property as his own having received it in exchange from his brother, plaintiff 1. That suit was again decreed against plaintiff 2 and in execution of the decree for costs some of the properties were Sold and purchased by the present defendants. Plaintiff 2 preferred a claim which was disallowed and. an application for revision was rejected by the High Court; The present suit was instituted more than a year after the order disallowing the claim, but within one year from the date on which the application for revision was rejected by the High Court. A question was raised whether the suit was not barred under Article 11, Lim. Act. In the view, however, we have taken of the other question it is unnecessary to consider the point.

12. The appeal is accordingly dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //