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Ram Charan Law Vs. Shahebzadee Fatima Begum and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata
Decided On
Judge
Reported in30Ind.Cas.686
AppellantRam Charan Law
RespondentShahebzadee Fatima Begum and ors.
Cases Referred and Mazhar Husain Khan v. Abdul Hadi Khan
Excerpt:
muhammadan law - wakf--property conveyed on trust--gift--condition - .....16th july 1864. it is in the form of an english indenture and is engrossed to be a conveyance to fatima begum and fyezuddin, their heirs, representatives and assigns, of the entirety of the premises now in suit, upon trust that they, the said fatima begum and fyenuddin, their, heirs or representatives or other trustees or trustee for the time being should, from time to time, demise the said hereditaments and premises to such persons or person on such terms and at such rent as they should think tit, and should from time to time appoint such person or persons to act as sircars or a sircar in the collection of the said rents as they should think fit with full power to discharge such sircars or sircar and to appoint others or another in his place, and should apply the rents and profits of.....
Judgment:

Lawrence Jenkins, C.J.

1. The question involved in this appeal is whether a Muhammadan lady, Shahebzadee Fatima Begum, had a saleable interest in a moiety of premises known as No. 63, Dhurumtolla Street, which the plaintiff claims to have bought in execution of a mortgage-decree in Suit No. 527 of 1908. The suit has been dismissed by Imam, J., and from his judgment the plaintiff has appealed.

2. The decision of this suit depends upon whether or not this property has been validly dedicated as wakf or not. If it has, then the suit must fail. The dedication is said to have been effected by a document of the 16th July 1864. It is in the form of an English indenture and is engrossed to be a conveyance to Fatima Begum and Fyezuddin, their heirs, representatives and assigns, of the entirety of the premises now in suit, upon trust that they, the said Fatima Begum and Fyenuddin, their, heirs or representatives or other trustees or trustee for the time being should, from time to time, demise the said hereditaments and premises to such persons or person on such terms and at such rent as they should think tit, and should from time to time appoint such person or persons to act as sircars or a sircar in the collection of the said rents as they should think fit with full power to discharge such sircars or sircar and to appoint others or another in his place, and should apply the rents and profits of the said hereditaments and premises, first, in payment of the expenses of the collections of the said rents and profits and of the management of the salary of the said sircars or sircar and otherwise and of the execution of the trust and next, in payment of the expenses of the repairs of the said hereditaments and premises and should apply the surplus of the said rents and profits after making the payments aforesaid in the due and proper observance of the annual Muhamadan festival of the Muhurrum. Fatima Begum is the defendant of that name. Fyezuddin is dead, and the other defendants are his representatives. On the 20th of October 1907, Fatima Begum executed a document by which there was expressed to be mortgaged to the plaintiff the half share now in suit, it being recited that she was absolutely seized and possessed of or otherwise well entitled to that half share. It was on the basis of this mortgage that the decree was passed, in execution of. which the plaintiff claims to have purchased this half share. Fatima Begum has appeared in the suit and put in a written statement alleging the wakf character of the property. She has, however, taken no part in the discussion before Imam, J., or this Court. The other defendants have appeared and contested the plaintiff's claim, contending that the property is wakf, or that at any rate what they describe as their moiety is unaffected by the mortgage and consequent sale. It is unnecessary to discuss any technical defect there may be in the form of the suit: the substantial question is, whether there has, been a valid dedication or not, and it is oil: these bases that the case has been fought before us.

3. The plaintiff has urged many objections to the validity of the wakf. The first point made is that the gift was to Fatima Begum and Fyezuddin on a condition, and that is inoperative because the Muhammadan Law does not permit a condition to be attached to a gift. The recital to the deed, however, makes clear the executant's purpose, for it runs in these terms; whereas the said Prince Mahomed Syeduddin is seized of or entitled to the hereditaments and premises hereinafter described for an absolute estate of inheritance and he is desirous of dedicating the same to the service of Imam Hassan and Imam Hossain and for religious purposes in the manner hereinafter mentioned.' The object of the gift is plain, and the introduction of trustees is merely the employment of machinery whereby the gift is carried into effect. The trustees are not donees, and it would be far too narrow a view to hold that the gift is vitiated by a condition. Mr. Chakravarti would go the length of contending that all gifts through the instrumentality of trust are bad. It would be difficult to reconcile that view with the language of the High Court and the Privy Council in Bishen Chand Basawat v. Nadir Hossein 15 C. 329 : 15 I.A. 1 : 12 Ind. Jur. 170 : 5 Sar. P.C.J. 113. In my opinion, this objection fails, and I hold that the provision in favour of the due and proper observance of the annual Muhammadan festival is not invalidated by the introduction of trustees as part of the machinery for carrying it into effect.

4. But, then, it is contended that the disposition does not constitute a wakf, and Mr. Chakravarti has relied on the decision of Delroos Banoo Begum v. Nawab Syad Ashgar Ally Khan 15 B.L.R. 167 : 23 W.R. 453 as conclusive in his favour. But this argument appears to me to rest on a misreading of the judgments of the High Court and the Privy Council in that case. The defendant 'there dedicated the whole of her property in perpetuity and provided that the income derived from the endowment, after the payment of the Government Revenue, should be divided into twenty-eight parts, fifteen parts whereof should be applied to the expenses of the Fatiba of Mahomed and the Imams as well as to those of the first ten days of the Muhurrum and of the holy days and the repairs of the imambara and the tomb; seven parts should be received by the amlahs and servants, whose names should be inserted at the foot of the document in question or any other document bearing the defendant's seal and signature, and which the said servants might have in their possession, some from generation to generation and others as long as they retain service; and the remaining six parts should be received by the mutwallis, i.e., the defendant and her co-mutwalli. The plaintiffs as members of the Muhammadan community (in the above case) sued the defendant as the mutwalli of the endowment for her removal from that office, on the ground only of misfeasance with the wakf estate. Leave to institute the suit was obtained under Act XX of 1863. It was objected that there was no jurisdiction to grant leave as the alleged endowment did not come within the scope of the Act, that there was no intention of creating an absolute wakf, and that the defendant was not aware of the contents and legal effect of the deed at the time of its execution. The other defences need not be mentioned. In the Court of first instance the plaintiff's suit was decreed. In the High Court this decree was reversed and the suit was dismissed, on the ground that the appropriation was not of a public character and that Act XX of 1863 did not apply to it. It followed that the Judge had no authority to give the plaintiff leave to sue and that his decision was ultra vires. But while the learned Judges determined that there had been no grant of land for public purposes within the meaning of the Act, read in the light of Regulation XIX of 1810, they by no means decided that the dedication did not constitute a wakf. On the contrary, the Court agreed in thinking that so far as words went, it was a wakf which could have bound the appropriator, but held, in view of the dedicator's position as an illiterate and prejudiced woman with no professional assistance, that the dedication was not binding. This is made abundantly clear by the concluding words of the judgment, where it is said-'As to the objections raised by the defendant that the wakf was indefinite and void, I think it enough to say that it, in my judgment, fully answered all the requirements of the Imameea Law, and that if it had been really and knowingly executed, it would have bound Delroos Banoo Begum without the power of revocation.' The case was taken on appeal to the Privy Council and the judgment was affirmed,[1] on the ground that the dedicator was not bound by the deed, as the precautions required in the case of pardanashin executants were not observed. There is, however, no trace of any suggestion that, apart from this, a wakf was not legally constituted; rather does the judgment indicate that its validity, apart from the executant's incapacity, was unquestioned. I, therefore, see nothing in this case that tells against the validity of the endowment now in question, and, if anything, it is an authority in its favour. And in support of the view that a wakf was legally constituted, reference may be made to Phul Chand v. Akbar Yar Khan 19 A. 211 : A.W.W. (1897) 49; Biba Jan v. Kalb Husain 1 Ind. Cas. 763 : 31 A. 136 : 6 A.L.J. 115 and Mazhar Husain Khan v. Abdul Hadi Khan 9 Ind. Cas. 753 : 33 A. 400 : 8 A.L.J. 162.

5. Nor do I think that it is made out that the deed of the 15th July 1864 was a colourable transaction; indeed, the plaintiff cannot well contend that it was fictitious or had no operation, for his suit is one for partition, and it is only by virtue of this deed that any of the defendants acquired any interest in the property that would support a suit for partition. Equally futile is any argument which depends on the contention that the earlier release is open to attack.

6. The result then is that, in my opinion, a valid wakf was legally constituted and that the employment of trustees for the purpose of carrying it into effect in no way prejudiced the dedication.

7. I, therefore, hold that the suit was rightly dismissed, and that this appeal, too, must be dismissed with costs.

Woodroffe, J.

8. I agree.

[1] See 3 C. 324 : 3 Sar. P.C.J. 749 : 3 Suth. P.C.J. 444 : 2 Ind. Jur. 601.--Ed


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