Full Judgment Text
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PETITIONER:
THAKUR MOHD. ISMAIL
Vs.
RESPONDENT:
THAKUR SABIR ALI
DATE OF JUDGMENT:
26/03/1962
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
CITATION:
1962 AIR 1722 1963 SCR (1) 20
ACT:
Wakf-alal-aulad Executed by Oudh talukdar--If offends rule
against perpituity-Oudh Estates Act. 1869 (1 of 1869), ss.
11, 12,18-Mussalman wakf Validating Act, 1913 (6 of 1913),
ss. 3,4.
HEADNOTE:
A Hanafi Mussalman, owner of a talukdari estate governed by
the Oudh Estate, 1869, executed in 1925 a deed of wakf-alal-
aulad, for the benefit of himself, his family and
descendants generation after generation. He was to be the
first mutwalli and thereafter his second son and after him
his other sons and descendants according to the rule of
primogeniture. Certain amounts were also to be paid to
charities and for the maintenance of members of his family.
The remainder was to go to the mutwalli. After his death
the suit, out of which the present appeal arises, was
instituted by the eldest son of his predeceased eldest son
claiming succession to the estate according to male lineal
primogeniture under the Act. His case mainly Was that the
wakf deed was invalid in view of ss. 11 and 12 of the Act.
The trial court found that the deed
21
was genuine and valid and dismissed the suit. On appeal the
High Court, while upholding the finding of the trial court
that the wakf deed was a genuine document, dismissed the
suit on the ground that the deed contravened s. 12 of the
Act. Section 11 of the Act provided that the estate
conferred on a talukdar was an absolute estate he having the
right to transfer or bequeath it in any manner he liked.
Section 18 dealt with gifts to religious and charitable
uses. Section 12 of the Act provided as follows:-
"No transfer or bequest under this Act shall be valid where
by the vesting of the thing transferred or bequeathed may be
delayed beyond the lifetime of one or, more persons, living
at the decease of the transferee or testator and the
minority of some person who shall be in existence at the
expiration of that period, and to whom, if he attains full
age, the thing transferred or bequeathed is to belong."
Held, (Gajendragadkar and Wanchoo, jj.), the oudh Estates
Act, 1869, was a complete Code by itself so far as the
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holders of talukdari estates were concerned and the rights
of such holders must be determined and circumscribed by the
provisions of the Act.
Although a wakf-alal-aulad was a gift in favour of God, it
could be valid only if it came within s. II of the Act.
Section 18 of the Act merely provided the procedure for
making gifts to charitable and religious uses and the power
to make a gift was to be found in s. 11. In any case, such a
gift was subject to the provision of s. 12 of the Act.
The words ’religious or charitable uses’ in s. 18 of the Act
which applied to talukdars of all religious, properly
construed, could not mean that provision for one’s children
would be provision for religious and charitable uses. A
wakf, such as the one in the present case, in which the
beneficiaries mainly were the descendends of the wakf would
not, therefore, fall within s. 18 of the Act. Treated as a
gift to God, He would have no beneficial ownership in it for
generations to come. Sections 3 and 4 of the wakf
Validating Act, 1913, could not alter the position.
Bikani Mis v. Shuklal Poddar, (1893) T. ’L. R. 20 Cal. 16,
considered.
Abdul Pala Mohamed Ishak v. Russomoy Dhur Choudhry, (1894)
L. R. 22 T. A. 76, referred to.
The word ‘vesting’ in s. 12 of the Act mean absolute
vesting, meaning thereby that the person in whom the
property vested could deal with it and its usufruct as he
liked. Even though therefore, the, property in the instant
case might vest
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in God immediately on the creation of wakf-alal-aulad, the
absolute vesting which s. 12 contemplated would be postponed
beyond the period prescribed by it. The wakf-alal-aulad
was, therefore, hit by s. 12 of the Act and must fail.
Per Sarkar, J.-The religious and charitable uses mentioned
in s. 18 of the Act were not such as are contemplated in
English law only. The Act contemplates a transfer by way of
Wakf as a transfer intervious such a transfer would be a
gift which is permitted by s. 11 of the Act.
The wakf, in the instant case, was valid under ss. 3 and 4
of the Mussalman Wakf Validating Act, 1913, and it was not
correct to say that under it the usufruct was transferred to
unborn discendants. Under the Mohamedan law a wakf is a
gift to charity and everything vests in god immediately on
the declaration of wakf so that the profits may revert to or
be applied for the benefit of mankind.
Since the passing of the wakf Validating Act, 1913, a wakf alal-aulad w
as as much a wakf as any other variety of and
its subject-matter vested immediately on its creation in
God, for the benefit of mankind, not as a trustee but as the
owner. The descendant of the wakf acquired no vested
interest in the usufruct of the wakf properties. The
vesting of the property not being postponed at all, there,
was no contravention of s. 12 of the Act.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 256 of
1959.
Appeal from the judgment and decree dated February 22, 1954,
of the Allahabad High Court (Lucknow Bench) at Lucknow in
First Civil Appeal No. 50 of 1946.
S. P. Sinha and Remeshwar Nath for the appellant.
C. K. Daphtary, Solicitor General of India,E. Udayarathnam
and S. S. Shukla, for respondent No. 1.
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1962. March 26. The Judgment of Gajendragadkar and
Wancboo, JJ., was delivered by Wanchoo, J. Sarkar, J.,
delivered a separate Judgment.
WANCHOO, J.-This is a defendant’s appeal on certificate
granted by the Allahabad High Court.
23
The suit was brought by Thakur Sabir Ali plaintiff
respondent for possession. The following pedigree table
(omitting the unnecessary names) which is not in dispute,
may be set out to appreciate the case of the plaintiff--
Amir Baksh
(died in 1857)
|
---------------------------------------
| |
Nabi Baksh Fath Mohd.
(died in 1899) (died in 1890)
|
-----------------------
|
First wife = Asghar Ali = Second wife
| (died in 1937) |
| |
-------------------- --------------------
| | | | | | |
Fatim, Nsirali Aeysba Mohd. Mohd Mohd. Bibi
Bibi | Bibi Umar Ali Ismail Zainal
D-3 Sabirali D-2 D- 1 D-5 D-6 D-7
(now appellant)
The case of the plaintiff was that Thakur Amir Baksh owned
considerable property Known as Tipraha Estate in the
district of Bahraich at the time of the, annexation of Oudh.
He died in 1857 and was succeeded by his son Thakur Fateh
Mohd., who was subsequently recognised by the Government as
the talukdar of the Tipraha Estate. Thakur Fateh Mohd. died
issueless and on his death Thakur Nabi Baksh succeeded him
as the talukdar under the family custom and under the
provisions of the Oudh Estates Act, No. 1 of 1.869,
(hereinafter called the Act). On the death of Thakur Nabi
Baksh the estate passed to his only son Asghar Ali, who in
his life time acquired certain other properties which
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were both talukdari and non-talukdari in nature. In August,
1925, Thakur Asghar Ali executed a deed of wakf alal-aulad
by means of which he created a wakf of his entire property
for the benefit of himself, his family and descendants
generation after generation. He was to be the first
mutwalli for his lifetime and thereafter his son Thakur
Mohd. Umar, and after him, his other sons and then his
other descendants selected according to the rule of
primogeniture were to be mutwallis. The wakf deed provided
that some amounts would be paid to charities and some as
maintenance allowance to the members of his family
generation after generation, the remainder going to the
mutwalli. Asghar Ali died in February, 1937, leaving behind
properties included in Schedules A to I appended to the
plaint. Disputes arose thereafter about succession to and
possession of his properties. Mohd. Umar claimed to be
entitled to the entire property under the wakf deed of
August, 1925, while the plaintiff, being the eldest son of
the eldest on Nasirali who had died in the lifetime of his
father Thakur Asghar Ali claimed succession to the property
under the rule of lineal primogeniture. This led to
protracted litigation in the Revenue Courts and eventually
an order for mutation was passed in favour of Thakur Mohd.
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Umar defendant who is now dead. Thakur Mohd. Umar came
into possession of the properties mentioned in schedules A,
B, D, E, F, H ’except certain items mentioned therein) while
the other defendants came into possession of certain other
properties, with the details of which we are not concerned
now.
Thakur Sabir Ali then instituted the present suit for the
possession of the entire property left by Thakur Asgharali
and for mesne profits. His case was that he was entitled to
succession under the rule of male lineal primogeniture in
accordance with the provisions of the Act and the family
custom. He denied the execution, attestation, genuineness,
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and validity of the wakf deed alleged to have been executed
by Thakur Asgharali, which was relied upon by Thakur Mohd.
Umar for his title to the property. The wakf deed was
further challenged on other grounds with which we are
however not concerned now except one. But the main attack
against the validity of the wakf deed was that the subject
matter of the deed was property subject to the special
provisions of the Act and therefore the said deed was not
valid, particularly in view of the provisions contained in
ss. 11 and 12 of the Act. This is the main point which
falls to be considered in the present appeal.
The defence was that the wakf deed was duly executed and
registered and acted upon and that no fraud, undue influence
or coercion as alleged by the plaintiff had been practiced
upon Thakur Asgharali in that connection. It was further
alleged that even if the wakf was invalid as a gift it would
be operative as a will and the mutwalli would be entitled to
the possession of the whole of the estate of Thakur
Asgharali under the wakf deed. The defendants also resisted
the attack on the wakf deed based on the provisions of the
Act.
The trial court found that the wakf deed was duly executed
and was a genuine and valid document. The trial court also
found that the plaintiff was entitled under the family
custom and also under the provisions of the Act to inherit
by the rule, of male lineal primogeniture such properties as
were left by Thakur Asgharali at the time of his death; but
as the trial court held that the wakf deed was valid, it
dismissed the suit of the plaintiff except with respect to
two properties in Schedule A to the plaint. The suit was
decreed with respect to these two properties on the ground
that they were not included in the wakf deed.
There was then an appeal by Sabirali to the High Court. It
upheld the finding of the trial court
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that the wakf deed was a genuine document. It also held
that it was a: valid wakf as a wakf-alal-aulad under the
Mussalman Wakf Validating Act (No. 6 of 1913); but it held
that the wakf deed was invalid because it contravened the
provision of s. 12 of the Act. The High Court however
further held that even though the wakf deed failed as a deed
creating a wakf, the directions contained in it for the
payment of maintenance allowance and right of residence in
favour of persons who were alive at the date of the death of
Asgharali and for the expenses to be incurred in respect of
charities would be binding on the plaintiff as being the
last will and testament of Asgharali. It therefore allowed
the appeal and decreed the plaintiff’s suit for possession
over the properties which were included in the deed of wakf
as also-over the other properties which belonged to
Asgharali at the time of his death subject to allowances and
charities to persons living at the time of the death of
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Asgharali and declared that the allowances and amounts to be
spent on charities were to be a charge on the properties
mentioned in the deed of wakf. The High -Court decree also
contained various consequential directions with which we are
however not concerned in the present appeal. The plaintiff
having riot appeared from that part of the decree by which
the allowances and the amounts to be spent on charities have
to be paid out of the properties included in the deed of
wakf and by which a charge was created on the properties
therefore, that part of the decree of the High Court has
become final.
The main question therefore that falls to be considered in
this appeal is whether the High Court’s view that the wakf
is invalid in view of a. 12 of the Act is correct. It is
necessary therefore to refer briefly to the history of the
talukdari estates with which the Act is concerned. Suffice
it to say that after the Mutiny of 1857 was over, Lord
Canning, the
27
then Governor-General of India issued a proclamation on the
15th of March, 1858, by which all proprietary rights in the
soil belonging to persons in Oudh (with the exception of the
rights of a few talukdars) were confiscated. At the same
time indulgence was promised to those who surrendered
promptly. In view of that promise most of the talukdars did
surrender with the result that they received back their
estates’,- only those who did not surrender lost their
estates and these estates were given to other talukdars who
had proved loyal to the British Government as a reward for
their loyalty. This re-grant was done by making settlements
with talukdars and issuing sanads to them. Thus all the
preexisting rights of the talukdars were first taken away
and then fresh grants under the terms of sanads and
proclamations issued at the time were made to them. This
was followed by the Oudh Estates Act of 1869, which further
defined the rights of talukdars to the estates granted to
them by the British Government. It will appear from the
provisions of the Act that the rights of talukdars and
grantees to whom estates were granted by the British
Government were defined in the Act without distinction of
religion or caste, so that the Act governed all talukdars
irrespective of the religion to which they might belong.
Further the right of succession is also provided in the Act
and the personal law of a talukdar with respect to the
talukdari property stands abrogated except and in so far the
Act imports it. Further it is clear that in respect of
matters dealt with by the Act, it is a self-contained and
complete Code with respect to talukdari property covered by
it. This was the view taken by the Privy Council in Chandra
Kishore Pewari v. Sissendi Estate (1), where it was observed
that ,the Oudh Estates Act is a special Act affecting
special class of persons in respect of the properties
conferred upon them. The Act is self-contained
(1) A. 1. R (1949) P. C. 207.
28
and complete in regard to the matters contained in it". It
is in this background that we have to consider the
provisions of the Act.
Let us therefore examine the scheme of the Act. The long
title of the Act says that it is ",an Act to define the
rights of talukdars and others in certain estates in Oudh,
and to regulate the succession thereto." The preamble then
says, "Whereas, after the reoccupation of Oudh by the
British Government in the year 1858, the proprietary right
in diverse estate in that province was, under certain
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conditions, conferred by the British Government upon certain
talukdars and others; and whereas doubts may arise as to the
nature of the rights of the said talukdar and others in such
estates, and as to the course of succession thereto; and
where as it is expedient to prevent such doubts, and to
regulate such course, and to provide for such other matters
connected therewith as are hereinafter mentioned." It is
clear therefore that the Act was made to define the rights
of holders of talukdari estates and to regulate the
succession thereto and the provisions in the Act being a
complete Code relating to the special class of the persons
in respect of the properties conferred upon them by the
British Government, whatever right the talukdars had in the
property conferred on them would have to be found in the Act
and would be circumscribed by its provisions.
Sections 2 of the Act is the definition section ,Ind we are
primarily concerned with the definition of the word
"’transfer" therein which is as follows:-
"Transfer with its grammatical variations and
cognate expressions, means to make an
alienation inter vivos whether before or after
the commencement of this Act."
Section 3 defines the rights of a talukdar and lays down
that a talukdar has a permanent, heritable and transferable
right in the estate comprising the
29
villages and lands named in the list attached to the
agreement or kabuliyat executed by such talukdars when such
settlement was made with him. Section 8 provides for
preparation of lists of talukdars and others grantees and it
is not in dispute that the Tipraha estate is mentioned in
lists I and II prepared under s.8 of the Act. Then we come
to s.all which deals with the powers of talus to transfer
and bequeath properties hold by them under the Act, the
relevant portion of which is as below--
"Subject to the provisions of this Act, and to
all the conditions other than’ those relating
to succession under which the. estate was
conferred by the British Government, every
talukdar and grantee, and every heir and
legatee of a talukdar and grantee, of sound
mind and not a minor, shall be competent to
transfer the whole or any portion of his
estate, or of his right and interest therein,
during his life-time, by sale, exchange-,
mortgage, lease or gift and to bequeath by his
will to any person the whole or any portion of
such estate, right and interest.............
It will be clear from a bare perusal of this provision that
the estate conferred on a talukdar was an absolute estate
for he had the right to transfer it in any manner be liked
and to any person be liked and even to sell it away
completely ignoring the heirs under the personal law. Then
comes S. 12 which reads thus -
"No transfer or bequest under this Act shall
be valid whereby the vesting of the thing
transferred or bequeathed may be delayed
beyond the life-time of one or, more persons,
living at the decease of the transferee or
testator and the minority of some person who
shall be in existence at the expiration of
that period, and to whom, if he attains full
age, the thing transferred or bequeathed is to
belong,"
30
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.lm0
This section provides the rule against
perpetuity so that even though the talukdar
under the Act had an absolute estate and could
transfer it as he pleased or will it away as
he pleased he could not in view of s. 12 make
a transfer or bequest which might infringe the
rule against perpetuity. Section 13 deals
with procedure relating to transfers by gifts
and provides that transfer by gift will be
made by an instrument signed by the donor and
attested by two or more witnesses not less
than three months before his death and
presented for registration within one month
from the date of its execution and registered;
and it further provides that no gift made
shall be valid unless followed within six
months from the date of execution of the
instrument of gift, by delivery by the donor
or his representative in interest, of
possession of the property comprised therein.
The following sections deal with bequests and
with procedure of transfer other than gifts
with which we are not concerned. Then we come
to s. 18, which deals with gifts for religious
and charitable uses and is in these terms:-
"No taluqdar or grantee, and no heir or
legatee of a taluqdar or grantee, and no
transferee mentioned in section 14, and no
heir or legatee of such transferee, shall have
power to give his estate, or any portion
thereof, or any interest therein, to religious
or charitable uses, except by an instrument or
gift signed by the donor and attested by two
or more witnesses not less than three months
before his death and presented for
registration within one month from the date of
its execution and registered."
It will be seen that there is one difference between s. 13
which deals with gifts for purpose other than religious and
charitable and s. 18 which deals with gifts for religious
and charitable uses inasmuch as delivery of possession is
not made necessary for the
31
validity of the gift under s. 18 as is the case in s. 13
(2). The rest of the Act deals with intestate succession
and other matters with which however we are not concerned.
The main contention on behalf of the appellant is that a
wakf-alal-aulad is outside the provisions of the Act
altogether and must be deemed to be a valid instrument in
view of Act VI of 1913. In the alternative it is claimed
that even if a wakfalal-aulad comes within the perview of
the Act it will be governed by s. 18, and if it complies
with the provisions of that section it will not be hit by s.
12, the argument being that s. 18 is independent of s. 12.
We can see no validity in the first contention on behalf of
the appellant, namely, that a wakf-alal-aulad is entirely
outside the purview of the Act and the provisions of the Act
will not apply to it and it will be valid in view of Act VI
of 1913. It is not disputed that the property with which
the wakf-alal-aulad in this case deals is property which
would be governed by the Act. We have already said that the
Act is a special Act affecting special class of persons in
respect of the properties conferred upon them by the British
Government and is a ,self-contained and complete code in
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regard to the matters contained in it. Therefore, so far as
the property which comes under the Act is concerned, we must
find power in the Act conferred on the talukdar to deal with
the property, and it cannot be accepted that the talukdar
can deal with the property which is governed by the Act in
any manner not provided by the Act. If the creation of a
wakf-alal-aulad is out side the purview of the Act it will
be clear that any wakf-alal-aulad dealing with property
which is governed by the Act would immediately be invalid
,so far as that property is concerned, for the property
conferred on the talukdar which is governed by the Act can
only be dealt with as provided in the Act and not otherwise,
the Act being a complete Code with respect to the rights of
the talukdar to deal with such property. On the argument
therefore
32
that a wakf-alal-aulad is a manner of dealing with the
property which is entirely outside the Act, the wakf must
fail at once so far as it deals with property governed by
the Act.
But we are of opinion that the contention that a wakf-alal-
aulad is some thing which is entirely outside the purview of
the Act, even though it may deal with property governed by
the Act cannot be accepted. A wakf-alal-aulad must by its
very nature be some kind of transfer of property by the
person making the wakf. Previous to Act VI of 1913, the
Privy Council had held in Abul Fata Mahomed lshak v.
Russomoy Dhur Chowdry (1) that "under Mahomedan law a perpetual fam
ily settlement expressly made as wakf is- not
legal merely because there is an ultimate but illusory gift
to the poor’ It wail because of this judgment by which wakf-
alal-aulad as known to Mahomedan law were declared illegal
that Act VI of 1913 was passed by which such wkfs became
legal. Obviously, therefore, when such wakfs become legal
there was a transfer of the property covered by the wakf and
the transfer was in favour in of God Almighty in whom
thereafter the property subject to wakf become vested. This
following from the theory of Mahomedan law under which wakfs
greated for purposes which are considered by that law to be
religious and charitable result in the transfer of ownership
of wakf property in perpetuity to God Almighty. Further the
transfer being without consideration can only amount to a
gift. Therefore, wakfs-alal-aulad which have become valid
after Act VI of 1913 must be held to be gifts of property to
God Almighty for certain purposes and are clearly transfers
within the meaning of that term in s. 2 of the Act.
Incidentally we may, add that the use of the words "inter
vivos" in the definition of the word "transfer" merely
emphasises that the transfer must be one effective during
the lifetime of the transferor as contrasted with a
(1) (1894) L. R. 22 1. A. 76.
38
transfer by will which takes effect on the death of the
transferor. Whenever therefore a transfer takes place by a
wakf-alal-aulad and the property included in the deed is
governed by the provisions of the Act we have to go to the
provisions contained in the Act with respect to the power of
the talukdar to make such transfer. The transfer would only
be valid if it is within the powers conferred on the
talukdar.
This brings us to the alternative argument raised on behalf
of the appellant. Obviously, a wakf-alal-aulad being a gift
in favour of God Almighty the property covered by it in the
present case being one governed by the Act, we have first to
go to s. 11 to see if a gift is permitted under that
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section. We have already set out s. 11 and that permits a
gift to be made by the talukdar of all the property or any
portion of it or any interest therein. This takes us
immediately to ss. 13 and 18. Section 13 deals with gifts
other than those for religious and charitable purposes and
we are therefore not concerned with it. Section 18 deals
with gifts for religious and charitable uses. The
contention of the appellant in this behalf is that s. 18 is
an independent section and gifts for religious and
charitable purpose can be made under it and we have only to
look to that section to determine the validity of a gift for
religious or charitable purposes made by a talukdar of
property governed by the Act. We are however of opinion
that s. 18 only provides for the procedure for making gifts
to charitable and religious purposes while s. 13 provides
for the procedure for making gifts to other persons for
other purposes. The power of the talukdar to make a gift is
to be found in s. II, the manner in which he can make a gift
is to be found in a. 13 for one class of gifts and in s. 18
for another class of gifts. Therefore we cannot accept the
argument that a. 18 is an independent section
fully.providing of gifts of a charitable and religious
nature; it is merely a procedural provision
34
for gifts of the type covered by it. But even if the
argument of the learned counsel for the appellant were
correct that s. 18 is an independent provision relating to
gifts for charitable or religious purpose, the gifts made
under s. 18 would still be subject to s. 12, as s. 12 opens
with the words "no transfer of bequest under this Act shall
be valid". Therefore, even if s. 18 were an independent
section it still deals with a transfer of a particular type
under the Act and that transfer would also be subject to s.
12. We may in this connection refer to s. 18 of the
Transfer of Property Act (No. 4 of 1882) which specifically
provides that the rule against perpetuity (s. 14 of the
Transfer of Property Act) shall not apply to transfer "for
the benefit of the public in the advancement of religion,
knowledge, commerce health, safety or any other object
beneficial to mankind. Section 18 of the Act however
provides no such exception so far as religious or charitable
gifts made under the Act are concerned and such gifts are
also subject to s. 12.
Two questions then arise when we have to consider the
application of s. 12 to this wake The first is whether the
purpose of this wakf is a religious or charitable purpose
within the meaning of s. 18 of the Act. Now what the wakf
deed provides is that an insignificant portion of the income
would be used for certain religious purposes; the rest of
the income is to be used for the benefit of the wakif and
his descendants from generation to generation and it is only
when the line of the wakif is completely extinct that the
whole of the income of the property could be utilised for
what may be called charitable or religious purposes. It is
urged however that even though the lion’s share of the
income of the property would be used for the descendants of
the wakif, the wakf will still be a religious and charitable
one, for the property immediately vests in God Almighty and
is to be used for the benefit of His creatures, which of
course include the wakif and
35
hit; descendants. Reliance in this connection’ is placed on
the dissenting judgment in Bikani Mia v. Shuklal Poddar (1)
in which Ameerali J. expressed the ’view that a wakf in
favour of the wakif and his descendants would be for
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charitable purpose under the Mahomedan law. It is enough to
say that this was not the view of the majority of that
Court. Further in Abul Fata Mahomed Ishak’s case (2) the
Privy Council clearly held that a wakf under which the
beneficiaries were the descendants of the wakif could not be
treated as one for a charitable purpose even under the
Mahomedan law. Apart from this aspect of the matter, we are
not here concerned with the Mahomedan law and what
constitutes a charitable use under that law. We are
concerned with a statute passed in 1869 by the British when
they were rulers of this country and we have to interpret
the English words used in that statute as understood by
those who framed the statute. The words with which we are
concerned are "religious or charitable uses" which appear in
s. 18 of the Act, and it would in our opinion require no
persuasion to hold that the authority which was framing the
Act could not have possibly intended that provision by wakf
for one’s children was provision for religious or charitable
uses. The view taken by the Privy Council in Abul Fata
Mahomed Ishak’s case (2) clearly shows that the authority
responsible for the Act could never contemplate wakfs in
which the beneficiaries were the descendants of the wakif as
wakfs for religious or charitable purpose. Further, the Act
applies, as we have already mentioned, not only to Mahomedan
talukdars but talukders of all religions and it could hardly
be intended when the words ",religious or charitable uses"
were used in s. 18 that a wakf in which the beneficiaries
were in the main the descendants of the wakif would be
included in s. 18. Such wakfs could never be considered to
be for charitable or religious purposes under
(1) (18 93) 1. L. R. 20 Cal. 116.
(2) (1894) L.R. 22. I.A. 76,
36
Hindu law or the Christian law. In these circumstances it
must be held that the wakf in the present case, though in
theory it vests the property in God Almighty, is not for
charitable or religious purposes. It must therefore be
treated as a gift to God Almighty in which however for
generations to come God Almighty would have no beneficial
ownership. Nor do we think that the Wakf Validating Act of
1913 makes any difference to this position. That Act
specifically provides by s. 3 that a Muslim can lawfully
create a wakf-alal-aulad. This however does not mean that
the purpose of such a wakf is a religious or charitable
purpose. This is made clear by the proviso to s. 3, which
provides that the ultimate benefit in such a case must be
for a religious or charitable purpose. The proviso would
have been unnecessary if the purpose of a wakfalal-aulad was
recognised as religious or charitable by this law. The same
in our opinion will follow from the provision in s. 4.
In such a case s. 12 must invalidate this wakf. As we have
already said, s. 12 provides the rule against perpetuity;
but it is said that the rule against perpetuity provided in
this section is not infringed by this wakf because the
property is vested in God immediately when the wakf-alal-
aulad is created and all that s. 12 requires is that the
vesting of the property transferred should not be delayed
beyond a certain period. It is urge, that in this case the
vesting takes place immediately on the making of the wakf
and therefore the gift is not covered by s. 12. This
immediately raises the question as to what is meant by
vesting under s. 12. It may be conceded that property
included in a wakfalal-aulad vests in God Almighty, but the
vesting that s. 12 says may not be delayed beyond a certain
period is in our opinion absolute vesting (i.e., vesting of
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both legal and beneficial estate) which may not he delayed
beyond a certain period, Such absolute vesting involves that
the person in whom
37
the property is vested can deal with it as he likes and can
deal with its usufruct also as he likes. If the person in
whom the property may be legally vested cannot deal with the
usufruct as he likes, there, is not that absolute vesting of
the property in him which the rule against perpetuity
enshrined in. s. 12 requires. If this were not so, it will
be quite easy to get round the rule against perpetuity by
creating a trust in which the property immediately vests in
the trustee and then providing for beneficial enjoyment in
perpetuity by other persons in whom the property never
vests. It is wall settled that a trust of this kind
immediately vesting the property in the trustee leaving the
usufruct tied up for ever for the benefit of other persons
infringes the rule against perpetuity. We may in this con-
nection refer to, a passage from Underhill’s "Law of Trusts
and Trustees", tenth edition, dealing with the Rule against
Perpetuities at p. 70, which is in these terms :-
settled on private trusts for an indefinite
period, so as to prevent it being freely dealt
with ; and, consequently, the power of so
doing has been curtailed by a rule known as
the rule against perpetuities. That rule is,
that every future limitation (whether by way
of executory devise or trust) of real or
personal property, the vesting of which
absolutely as to personality, or in fee or
tail as to realty, is postponed beyond lives
in being and twenty-one years afterwards (with
a further period of gestation where it exists)
is void."
Even though therefore the property may vest in God
immediately on the creation of the wakf-alalaulad in this
ease, the beneficial enjoyment thereof is not for the
purposes of God religious or charitable purposes, the
vesting which is envisaged by s.,12 is undoubtedly postponed
in this case
38
beyond the period allowed by that section. Therefore, the
wakf in this case even though it may be treated as a gift to
God legally vesting property in Him immediately on its
execution is hit by s. 12, for the absolute vesting which
that section contemplates is postponed beyond the period
mentioned in that section. The view therefore. taken by the
High Court that the wakf in this case is hit by s. 12 of the
Act is correct.
Finally, it was urged that at any rate, so long as the
appellant Mohd. Ismail is alive the plaintiff respondent
could not claim possession and therefore the decree of the
High Court to that extent was wrong. We have not been able
to appreciate this contention at all. Once the wakf fails
as a whole, as we hold that it does, Mohd. Ismail cannot
claim to remain in possession, for his right to remain in
possession depends upon his being mutawalli of the wakf The
High Court was therefore right in decreeing the suit brought
by the plaintiff-respondent. The appeal therefore fails
and, is hereby dismissed with costs.
SARKAR, J.- Thakur Mohammad Asghar Ali, a Hanafi Mussalman,
was the owner of the Tipraba Estate, a taluqdari estate
governed by the Oudh Estates Act, 1869. It appears that be
also owned certain other immovable properties and movables
of some value. With regard to these latter, however, no
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question has been raised in this appeal and it is not
necessary to deal with them especially.
On August 26, 1925, Asghar Ali executed a deed of
Wakf-alal-aulad in respect of all his proper. ties the value
of which was estimated in the (feed at Rs. 10,00,000. By
this deed he provided for an expenditure of a total annual
sum of Rs. 1,000 for the purposes of a mosque, the
destitute, helpless students and also provided for some
guzara (maintenance) to his mother, wife and children, and
after
39
them, to their respective heirs till the line of a guzaradar
became extinct. He constituted himself the first mutawalli
under the Wakf with full right to spend the amount saved
after the payment of the aforesaid sums. He also provided
that after his death. his second son Mohammad Umar would be
the mutawalli for his life and after him his other sons, one
after the other, and that after the death of his last son,
the succession to the mutawalliship would devolve by the
rule of primogeniture according to the custom obtaining in
his family. In the end he provided that if no one remained
to succeed to the office of mutawalli, Government would make
proper arrangements for applying the usufruct of the wakf
property for purposes of the mosque, religious sacrifice of
goats, distribution of the guzaras and grant of scholarships
to poor Mohammedan students. He died on February 27, 1937.
After Asghar Ali’s death disputes sprang up between his
descendants. The respondents, Sabir Ali, the eldest son of
Nasir Ali the predeceased eldest son of Asgar Ali, claimed
that the wakf was neither genuine nor valid and that
therefore, under the rule of primogeniture as provided in
the Oudh Estates Act which governed the Tipraha Estate he
alone was entitled to all the properties left by Asghar Ali.
This claim was disputed, among others, by Mohammad Umar who
contended that he was entitled to the properties in terms of
the wakf. It does not appear to have been in controversy
that in the absence of the wakf, the respondent Sabir Ali
would be entitled to the properties under the rule of
primogeniture by which admittedly the devolution of the
properties was governed. Eventually the respondent Sabir
Ali filed the suit out of which this appeal arises, claiming
the properties left by Asghar Ali under the rule of
primogeniture. Ho denied the execution, attestation,
genuineness and validity of the deed of wakf on various
grounds. Mohamad Umar, who was the first defendant in
40
the suit, resisted it basing himself on the deed of wakf.
The widow and the other children of Asghar Ali were also
defendants in that suit and opposed the respondent Sabir
Ali’s claim on various grounds but with these this appeal is
not concerned.
The trial Court found the deed of wakf to be valid in every
way but came to the conclusion that certain properties left
by Asghar Ali had not been included in it. With regard to
these it made a decree in favour of the respondent Sabir Ali
and this part of the decree was never challenged and has
therefore become final. The trial Court dis,missed the rest
of the respondent Sabir Ali’s suit as it took the view that
the deed of wakf was valid and under it Mohammed Umar was
entitled to the properties as the Mutawalli.
The respondent Sabir Ali then appealed to the High
Court at Allahabad. While the appeal was pending their,
Mohammad Umar and Mohammad Ali, another defendant, died and
their legal representatives were brought on the record in
their places, and another son of Asghar Ali, the appellant
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Mohammad Ismail who also was a defendant in the suit and who
had become the mutawalli under the terms of the deed of wakf
on the death of Mohammad Umar and Mohammad Ali, was
substituted as mutawali in the place of Mohammad Umar. The
High Court agreed with the view of the trial Court that the
wakf deed was genuine and had been executed with due
formalities but held that it was of no effect as it offended
the rule against perpetuity contained in s. 12 of the Oudh
Estates Act to the terms of which I shall presently refer.
Against that judgment Mohammad Ismail has filed the present
appeal.
Two questions have been raised in this appeal. The
first is whether the Act permits a transfer by way of a wakf
as it only permits transfers inter vivos
41.
and by will and the second whether the wakf created in this
ease offends s. 12 of the Act.
Section 2 of the Act defines transfer’ as alienation inter
vivos. Section 11 provides that subject to certain things
to which it is Dot necessary to refer, every taluqdar of
sound mind and not a minor shall be competent to transfer
the whole or any portion of his estate or of his right and
interest therein, during his life time by sale, exchange,
mortgage, lease or gift and to bequeath by his well to any
person the whole or any portion of such estate, right and
interest. So it was said that a taluqdari estate can be
disposed of either by a transfer inter vivos in one of the
manners mentioned in s. 11 or by a will also therein
mentioned but in no other way. It was contended that the
wakf in this case did not constitute a disposition in either
of these methods and was therefore bad.
I think it necessary in how to refer to two more sections of
the Act before examining this contention. The first is s.
13 which is concerned with gifts of the estate for purposes
other than religious or charitable and with this section we
are not concerned in this appeal. The other is s. 15 which
provides that no ’taluqdar "shall have power to give his
estate, or any portion thereof, ony interest therein’ to
religious or charitable uses, except by an instrument of
gifts signed by the donor and attested by two or more
witnesses not less than three month before his-death and
presented for registration within one month from the date of
its execution and registered." It is not in controversy that
the properties covered by the deed of walkf from ,(,states’
within the meaning of the Act.
With regard to the contention that a transfer by way of wakf
was not permitted by the Act as it is not a transfer inter
vivos it seems to me that a transfer inter vivos
contemplated by the Act does not exclude a transfer by way
of waif. Section 18
42
contemplates a transfer to religious and charitable uses.
That section as it now stands was enacted by U. P. Act III
of 1910. I find it impossible to think that the religious
and Charitable uses mentioned in it were such as are
contemplated in English law only, for the Act was meant for
Indian taluqdars of all communities the larger number of
whom were Mohammedans and Hindus. If it were so, no Hindu
could have created a debutter nor a Mohamedan any wakf for
each would have been badas a gift to a superstitious use
(Bourne v. Keane)(1) and also as gift to God. I cannot
imagine that the Act intended such a result. Therefore, in
my view the Act contemplated a transfer by way of wakf as a
transfer inter vivos. This variety of transfers can easily
be brought under gifts mentioned in s. 11 as such transfers
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are without consideration and voluntary.
The other question is whether a wakf- alal-aulad offends s.
12. That section is in these terms :
S. 12 No transfer or bequest under this Act
shall be valid whereby the vesting of the
thing transferred or bequeathed may be delayed
beyond the life-time of one or, more persons
living at the decease of the transferee or
testator and the minority of some person who
shall be in existence at the expiration of
that period, and to whom, if he attains full
age, the thing transferred or bequeathed is to
belong.
The High Court held that the wakf was a valid wakf under the
Mussalman Wakf Validating Act, 1913 but it hold that it
offended s. 12 inasmuch as "though the corpus of wakf
property is transferred to God Almighty, yet Its usufruct is
transferred to unborn descendants of the waqi generation
after generation." I am unable to accept this view of the
matter,
(1).[1919] A.C. 815,845.
43
In Abul Pala Mahomed Ishak v. Russomoy Dhur Chowdry (1) the
Privy Council held that in a wakf of the kind that we have
before us, the gift to charity after the total extinction of
the donors’ family was illusory and therefore there was
really no wakf at all and "the poor have been put into this
settlement merely to give it a colour of piety, and so to
legalize arrangements meant to serve for the aggrandizement
of a family": (p. 89). This decision caused considerable
dissatisfaction in the Mohammedan community in India and to
legalise wakfalal-aulad the Mussalman Wakf Validating Act,
1913 was passed. That Act defines wakf as "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": s. 2(1). Sections 3 and 4
of this Act provide as follows :-
S. 3 : It shall be lawful for any person
professing the Mussalman faith to. create a
wakf which in all other respects is in accor-
dance with the provision of Mussalman law, for
the following among other purposes :-
(a) for the maintenance and support wholly
or partially of his family, children or
descendants, and
(b) where the person creating a wakf is a
Hanafi Mussalman, also for his own maintenance
and support during his lifetime or for the
payment of his debts out of the rents and
profits, of the property dedicated :
Provided that the ultimate benefit is in such
cases expressly or impliedly reserved for the
poor or for any other purpose recognised by
the Mussalman law as a religious, pious or
charitable purpose of a permanent character.
(1) (1894) L.R. 22 I.A. 76.
44
S. 4. No such wakf shall be deemed to be
invalid merely because the benefit reserved
therein for the poor or other religious.’
pious or charitable purpose of a permanent
nature is postponed until after the extinction
of the family, children or descendant,% of the
person creating the wakf.
It will be obvious from these provisions of the Wakf
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Validating Act that in the case of a Hanafi Mussalman, a
wakf for the maintenance and support of the wakif and his
descendants from generation to generation and after the
extinction of the family to the poor or other religious
poius or charitable purpose of a permanent nature is a wakf
and therefore a dedication for a purpose recognised by the
Mussalman law as religious, pious or charitable. According
to the concept of Mohammedan law ‘wakf’ signifies "the
extinction of the appropriator’s ownership in the thing
dedicated and the detention of the thing in the implied
ownership of God, in such a manner that its profits may
revert to or be applied "’for the benefit of mankind,":
(Mulla’s Mahomedan Law, 15th ed., p. 154).
The High Court held the wakf created by Asghar Ali to be a
valid wakf within the Act of 1913 and with that view I am in
complete agreement. But I am unable to agree that under
that wakf the usufruct is transferred to unborn descendants.
A transfer is a wakf only where the usufruct is applied for
the "benefit of mankind". Since the Act of 1913, there is,
no doubt that a transfer for the support of the wakif and
his descendants generation after generation with a gift to
other charities on the extinction of the wakif’s family is a
transfer for the benefit of mankind. The transfer is a wakf
from the beginning. So all its purposes are for the
"benefit of mankind". Whether such a notion is acceptable
to one who is not a Mahomedan is to no purpose. In such a
wakf the corpus vests ni
45
God so that the usufruct may be utilised for the "benefit of
mankind". If what the High Court said was right, then the
corpus alone of the wakf property would vest in God and
either God had no interest in the usufruct or was a trustee
of the unborn descendants. But it is well-settled that wakf
imports no trust in the English sense. So it was said in
Vidya Varathi v. Balusami Ayyar (1) "But the Mohammedan law
relating to trusts differs fundamentally from the English
law. It owes its origin to a rule laid down by the Prophet
of Islam; and means "the tying up of property in the
ownership of God the Almighty and the devotion of the
profits for the benefit of human beings. When once it is
declared that a particular property is wakf............ the
right of the wakif is extinguished and the ownership is
transferred to the almighty’. It would indeed be difficult
to conceive of God as a trustee. The other alternative,
namely, that the corpus alone vests in God, is equally
foreign to the concept of a wakf. If the usufruct in the
present wakf vested in the descendants of the wakif from
generation to generation, on the same principle it might be
said that in a wakf for the support of indigent widows, the
usufruct vested in them and many of them would be born long
after the wakf was created. I am not aware that it has ever
been so held. I feel no doubt that in a wakf the usufruct
never vests in persons who form the object of the pious
purpose for which it was created. If the usufruct vested in
the unborn descendants, then God has no interest in it and
the corpus is not detained in his custody so that the
usufruct might be applied for a pious purpose. ’In such a
case indeed no wakf would have been created. That would be
a different case. Here we have a valid wakf, and the only
question is whether the wakf violates a. 12 of the Act. The
misconception, as I think it is,
(1) (1921) L.R. 48. I.A. 302, 312,
46
that the usufruct vests in unborn descendants arises from
refusing to recognise that in Muslim law a wakf-alal-aulad
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is wholly a gift to charity and everything vest in God and
nothing in the objects of the charity. It seems to me that
if the present wakf is a valid wakf, which I think it is,
it cannot be said that the descendants of Asghar Ali
acquired under it a vested interest in the usufruct of the
wakf properties.
Remembering therefore that since the Wakf Validating Act, a
wakfalal-aulad; that is to say, a wakf of the kind with
which we are concerned is as much a wakf as any other
variety of wakf, it has to be said that the subject matter
of such a wakf vests immediately on its creation in God, not
as a trustee but as the owner and so vests in Him because it
is a wakf, that is to say, because the profits of the
property are to be spend for the benefit of mankind. That
being so, the vesting of the property transferred is not
postponed at all and therefore a. 12 is not violated by a
transfer by way of wakf. The real effect of the creation
of such a wakf is to transfer the property to God and vest
it in Him immediately for the benefit of mankind.
I am, therefore, of the view that the wakf created by Asghar
Ali is a valid wakf and is not bad as offending s. 12 of
the Oudh Estates Act.
In the result I would allow the appeal.
By COURT. GAJENDRAGADKAR, J.- In accor, dance with the
opinion of the majority, the appeal is dismissed with costs.
47