SIR DINSHAH MULLA:
This is an appeal from a judgment and decree dated 19th March 1929, of the High Court of Judicature at Allahabad, which reversed a judgment and decree of the Court of the Subordinate Judge of Pilibhit dated 6th July 1925. The question involved in the appeal is as to the effect of a wakfnama executed by a Mahomedan pardanashin lady under the following circumstances : On 29th August 1912, Manzur Ahmad, a Sunni Mahomedan governed by the Hanafi law, executed a document purporting to be a sale of two villages, one situated in Pilibhit District and the other in Bareilly District, in favour of his mother Rahim Bibi for a consideration of Rs. 2,00,000. It was recited in the deed that Rs. 10,000 had been paid by Rahim Bibi. As to the balance of Rs. 1,90,000, it was stated in the deed that it was left with Rahim Bibi
"with instructions that she should spend it at her discretion in charitable purposes for the eternal benefit of my (i. e., Manzur Ahmad's) soul."
Manzur Ahmad died on 2nd September 1912, leaving him surviving as his heirs according to Mahomedan law two widows, his mother Rahim Bibi, and a paternal uncle Fazal Ahmad On his death the widows became entitled between them to one-fourth of his estate, the mother to one third, and the uncle as a residuary to the remaining five-twelfths. On 23rd June 1913, Rahim Bibi executed a wakfnama of the villages transferred to her by the sale deed by which she constituted herself the first muttawali, and appointed Fazal Ahmad, who is respondent 1 in this appeal, and three others who are respondents 3 to 5 as muttawalis after her death. It was recited in the deed that she had already spent Rs. 15,000 in charity, and a charge was created by the deed on the income of the wakf property for the payment of Rs. 25,000. The material part of the wakfnama is as follows :
"My son Manzur Ahmad, deceased, sold the zamindari property in Bhitaura Kalan and Amkbara mentioned below to me for Rs. 2,00,000, took Rs.10,000, a portion of the consideration money, from me and left the remaining amount of Rs.1,90,000 with me as an amount dedicated for religious purposes and authorised me to spend the same. Out of the said amount Rs. 15,000 has been spent up to this time. Instead of spending the amount of consideration after which the charity shall come to an end, it is more beneficial to make a wakf of the said property and utilize the income therefrom in charitable deeds as it will be a continual gift and permanent charity. I therefore while in a sound state of body and mind, and of my own accord, withdraw my possession from the entire 20 biswas "asli"zamindari property in the village of Bhitaura Kalan, pargana and District Pilibhit and the entire 20 biswas "asli"zamindari property, together with the cultivated lands in mauza Amkhera, pargana Richha, tahsil Baheri, District Bareilly, together with all the rights appertaining thereto and make a "wakf"of the same in the name of the Almighty."
After the death of Manzur Ahmad; litigation ensued between the heirs, the result of which was that the sale of the villages was in December 1917, held to be void, as being, under the cloak of a Bale, in reality a death bed gift in fraud of the heirs. The effect of this decision was that Rahim Bibi took nothing by the sale deed, but was entitled, as an heir, to one-third of the villages. This one-third was sold by her on 20th June 1918, to appellant 1 and the father of appellants 2 to 6. The question for decision in the appeal is whether this was a good sale, or whether the one-third share of Rahim Bibi had already been validly disposed of by the wakfnama. Rahim Bibi died on 15th August 1921, leaving her surviving as her heirs respondents 2 and 3.
On 9th September 1924, Fazal Ahmad, instituted the suit out of which the present appeal arises in the Court of the Subordinate Judge of Pilibhit as one of the succeeding muttawalis against the appellants and the heirs of Rahim Bibi and the other muttawalis for a declaration that the wakf was valid to the extent of the one-third share of Rahim Bibi in the two villages which she had acquired by inheritance from Manzur Ahmad, and that the sale to the appellants, being a sale of wakf property, was void, and for other reliefs.
The appellants alone contested the plaintiff's claim. They denied that the wakf was valid to the extent of the one-third share of Rahim Bibi, and pleaded that Rahim Bibi did not intend to create a wakf of what she inherited as an heir of Manzur Ahmad. The Subordinate Judge held that there was nothing in the deed to indicate that Rahim Bibi intended to create a wakf of two-thirds as a vendee from Manzur Ahmad and of the remaining one-third as his heir, and passed a decree dismissing the suit. From that decree Fazal Ahmad appealed to the High Court at Allahabad. The appeal was heard by Kendall and Niamatullah, JJ., who delivered separate judgments. Kendall, J., was of opinion that S. 8, T. P. Act, was decisive of the case. That section provides that
"unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof."
The learned Judge considered that what was transferred by the deed of wakf was the zamindari property in the two villages, and not the interest which Rahim Bibi had acquired under the sale deed, and that although the wakfnama could not operate on two-thirds of the property, it operated on the one-third which Rahim Bibi owned at that date as an heir of Manzur Ahmad. On the other hand, Niamatullah, J., was of opinion that all that was intended to pass by the wakfnama was what Rahim Bibi believed she had purchased from her son, and that the wakf did not attach to what she acquired as her son's heir. The learned Judge added that Rahim Bibi was a pardanashin lady, and that it was for those who set up the wakfnama to show that the consequences that would follow if the sale deed were set aside were fully explained to her. The learned Judges, assuming apparently that they differed only on a question of law, and that the case fell under the proviso to S. 98, Civil P. C., referred the following question to a larger Bench:
Whether the deed of wakf dated 23rd June 1913, assuming it to be otherwise valid, operates on the one-third share of Mt. Rahim Bibi in villages Bhitaura Kalan and Amkhera, or whether it is confined to such estate as she was believed to possess in them under the sale deed dated 29th August 1912."
In their Lordships' opinion it is at least doubtful whether this procedure was correct, as the difference of opinion seems also to have covered the question raised by Niamatullah, J., as to the necessity for a fuller explanation of the effect of the wakfnama to Rahim Bibi, and this was not submitted to the new Bench. The appeal however on the question so formulated, was heard by a Bench of three Judges consisting of the two referring Judges and Mukerji, J. Mukerji, J., agreed with the opinion of Kendal, J. Niamatullah, J., adhered to the view which he had previously expressed. The answer of the majority of the Judges was that the wakf attached to the one-third share of Rahim Bibi in the two villages. The result was that the appeal was allowed, and a decree was passed for the plaintiff on 19th March 1929. It is from that decree that the present appeal has been brought to His Majesty in Council. The sole question for determination on the appeal is whether the wakf attached to the one-third share in the villages which Rahim Bibi acquired as heir of her son, Manzur Ahmad. In their Lordships' opinion the sale by Manzur Ahmad and the execution of the wakfnama must be regarded as integral parts of one transaction, and the sale being held to be void, the wakfnama falls with it. The sale deed imposed upon Rahim Bibi an obligation to spend Rs.1,90,000, the balance of the purchase price, in charity, and the terms of the wakfnama leave no doubt that she executed the latter document in fulfilment of that obligation, and that she had no intention of making any contribution to the wakf from her own property. The wakfnama begins with a recital of the instructions contained in the sale deed, and after stating that Rs.15,000 had already been spent by her in charity, it proceeds to say:
"I therefore withdraw my possession from the entire. . . . property and make a wakf of the same in the name of the Almighty."
That she had no intention of settling anything of her own is also clear from the reservation of Rs. 25,000 which she had paid as a charge upon the villages to be repaid to her out of the income. The scheme was, no doubt, as was held in the former proceedings between the parties, a mere device to evade the Mahomedan law, but there is nothing to suggest any intention on the part of Rahim Bibi to do more than to carry this scheme into effect. Their Lordships are therefore of opinion that the conclusions come to upon this question by the Subordinate Judge and Niamatuilah, J., are correct. They think it at least doubtful whether S. 8, T. P. Act, has any application in the present case, but in any event they are of opinion that in order to ascertain the intention of the lady in executing the wakfnama, the whole transaction must be looked at, and upon this they think that her intention to settle only what she thought had been entrusted to her by her son is clear. Having regard to the conclusion to which their Lordships here come upon the effect of the wakfnama, it is unnecessary to deal with the question raised us to the position of Rahim Bibi as a pardanashin lady upon which no issue was raised or tried in the lower Court. Their Lordships will accordingly humbly advise His Majesty that this appeal should be allowed, that the decree of the High Court dated 19th March 1929, should be set aside, and the decree of the Subordinate Judge dated 6th July 1925, restored. The respondents must pay the costs of the appellants in the High Court and before this Board.