Khasim Vs. Mohammed Dastagir & Ors  Insc 973 (15 December 2006)
Ar. Lakshmanan & Altamas Kabir
Mohammed Imam Saheb owned various immovable properties in Malleswaram in Bangalore. He had three wives, namely, Ghouse
Bee, Hafiza Bi and Zeenath Bee. Mohd. Imam Saheb had one son and two daughters
by his first wife- Ghouse Bee since deceased, namely, Mohd. Dastagir, Rahamat
Bee and Maimoon Bee. He also had three daughters and one son by his second
wife, Hafiza Bi, since deceased, namely, Fathima Bee, Mahaboob Bee, Kathija Bee
and Mohammed Khasim. Through Zeenath Bee, his third wife, Mohd. Imam Saheb had
two sons, namely, Anwar and Nazeer.
the materials on record, it appears that besides owning several immovable
properties, Mohd. Imam Saheb also owned a cloth business for which he had
obtained a licence in the name of Mohd. Dastagir, his son by his first wife. On
18th August, 1958, Mohd. Dastagir executed an
unregistered Release Deed in favour of Mohd. Imam Saheb, acknowledging the fact
that all the properties, including the cloth business, belonged to Mohd. Imam Saheb
and that on receipt of a sum of Rs.5,000/- he had voluntarily released and
relinquished all his rights and title over the properties belonging to Mohd. Imam
Saheb, including the shop.
execution of the said Deed of Release, Mohd. Imam Saheb executed a Deed of
Trust on 29th February,
1960, in respect of
his various properties both movable and immovable.
said deed has also been referred to as a Hiba. The trust deed indicates that
during his lifetime, Mohd. Imam Saheb would act as trusteein-management along
with his second wife, Hafiza Bi, and in the event of death of either of them,
the survivor would continue to be the trustee and manage the trust properties
according to the terms of the trust deed. It was also stipulated that since the
wives and children of Mohd.
were under his protection, he would be free to enjoy the properties according
to his will and desire and that he would also have the liberty to alienate the
trust properties and to purchase fresh properties for the benefit of the trust.
properties were acquired in future were also to be included with the trust
properties. The trust deed further provided that on the death of the executant
and his second wife, Hafiza Bi, his son, Mohd. Khasim alias Jani Sab, would
become the trustee and would manage the properties in accordance with the terms
of trust deed.
from providing for the management of the trust properties, Mohd. Imam Saheb
also stipulated that certain charitable works, which were recognized by Islam
to have religious connotations, were to be performed. One of the religious
ceremonies to be performed was to adorn with flowers and sandal paste the tomb
of the executant and the holy Quran was to be recited every year during the
month of Barvi Shareef from the date of the first moon till the 11th day of the
moon and on the day of Milad-Un-Nabi large number of people were to be provided
directions have been given for recital of the Quran during various other
periods of the year when also food was to be provided to large numbers of
people. Provision was also made for the trustee to arrange for good marriages
for the daughters of the family. It was also made clear that except for the executant
himself, none of the other trustees would have the power to alienate the trust
properties. The management of the textile shop was left to Mohd. Khasim after
the death of the executant. The executant also made provision for his daughters
and a statement was made in the trust deed that the Will which the executant
had executed on 9th
January, 1959 was also
being cancelled by virtue of the trust deed.
Imam Saheb's death, his son Mohd. Dastagir, by his first wife, brought a suit
for partition and separate possession, being Original Suit No.273/1972,
subsequently renumbered as Original Suit No.381/1980, in the Court of the Vth
Additional City Civil Judge at Bangalore City against all the surviving heirs of Mohd. Imam Saheb.
The case made out by him was that the Release Deed which had been executed by
him on 18th August,
1958, in favour of Mohd.
Imam Saheb was not binding on him as the said deed had been executed by the
plaintiff only in deference to his father's wishes. According to the plaintiff,
the said deed was nothing but a sham document and was not acted upon and was,
in any event, not valid under Mohammedan Law. It was also pleaded that the
plaintiff had been informed by his father that if he executed the Release Deed,
Hafiza Bi, second wife of Mohd. Imam Saheb, would also return certain
properties which had been given to her and her children by Mohd. Imam Saheb. It
was the further case of the plaintiff that after execution of the Release Deed,
Mohd. Imam Saheb re- possessed certain properties from Hafiza Bi by way of oral
suit was contested by defendant Nos. 3,4,5 ,7,8,9 and 10 by filing separate
written statements. The written statement filed by defendant Nos. 3 & 7
were rejected since they had already adopted the written statement filed by the
other defendants. Defendant Nos. 1,2, and 6 did not choose to contest the suit
and remained ex-parte.
written statement, the 4th defendant took the stand that in view of the Release
Deed executed by the plaintiff on 18th August, 1958, he was not entitled to any share
in the suit properties apart from the two sites and house in Srirampuram.
5th defendant also resisted the suit by relying on the Release Deed executed by
the plaintiff and claimed that the plaintiff had no right in the immovable
7th defendant Mohd. Khasim, took the defence that his late father had created a
trust by virtue of the Trust deed dated 29th February, 1960 and had appointed the 7th defendant
as a trustee for the purpose of performing various religious rites coupled with
the condition that the properties were not to be alienated. It was contended
that the Trust deed was in effect a Wakfnama and that late Mohd. Imam Saheb had
created a Wakf-al-al-Aulad and consequently the properties which formed the
subject-matter of the said document were not liable to be partitioned. The 7th
defendant also took the stand that by execution of the Deed of Release, the
plaintiff was estopped from maintaining the suit and from claiming any share in
the properties in question.
many as 19 issues were framed by the trial court, of which issue nos. 1,2, 13,
14 and 15 appear to be relevant for the purposes of these appeals. The learned
trial Judge after an elaborate discussion with regard to issue nos. 13 and 14
ultimately came to the conclusion that by virtue of the Trust deed, a copy of
which had been exhibited as Ex.D-7, a Wakf- al-al-Aulad had been created and
consequently the properties set out as item Nos. 1 to 3 in the schedule to the
plaint were not partible and could not form the subject-matter of any
partition. Issue Nos. 13 and 14 were, therefore, answered in the affirmative in
favour of defendant Nos. 3 and 7 and against the plaintiff and defendant Nos.4
and 8 to 10.
the trial Judge was of the view that the remaining properties were partible,
but the plaintiff was not entitled to any share therein. The 5th defendant was
declared to be entitled to a 1/11th undivided share in all the immovable
properties. Similarly, the 8th defendant was also declared to be entitled to a
1/11th share while defendant Nos. 9 and 10 were declared to be entitled to an
undivided 7/44th share each in the suit properties. Pursuant to the said findings
of the trial Judge, a preliminary decree for partition and separate possession
was drawn up on 13th
appeals, being RFA Nos. 562/87,823/87, 196/90 and 561/87, were filed against
the aforesaid judgment. RFA 562/87 was filed by Zeenat Bee and her two sons,
who were defendant Nos. 8,9 and 10 in the suit. RFA 561/87 was filed by the
plaintiff Mohd. Dastagir. RFA 823/87 was filed by Smt. Fathima Bee and Mehaboob
Bee, who were defendant Nos. 4 and 5 in the suit and RFA No.196/90 was filed by
Mohd. Khasim, who was defendant No.7 in the suit.
four appeals were taken up for hearing together by a learned Single Judge of
the Karnataka High Court and were disposed of by a common judgment dated 5th October, 1998.
said judgment, the appeal preferred by the plaintiff was allowed. The appeals
preferred by the defendant Nos. 4 and 5 and defendant Nos. 8 to 10 in respect
of issue Nos. 13 and 14 were allowed. Consequently, the appeal preferred by Mohd.
Khasim was dismissed. While deciding the aforesaid appeals, the High Court took
a view which was completely different from the views expressed by the trial
Judge with regard to the interpretation of the Deed of Release and the Trust
Deed executed by Mohd. Imam Saheb. After holding that the Trust Deed had not
been acted upon at all, the High Court came to the conclusion that on a
construction of the documents in question, the final irresistible inference was
that neither had any valid trust nor valid wakf been created in the eye of law
so as to deprive the plaintiff from getting a share in the property left by his
father. The High Court ultimately concluded that both the Release Deed and the
Trust Deed were invalid and the heirs of Mohd. Imam Saheb were all entitled to
their respective shares in the properties of late Mohd. Imam Saheb.
Appeal Nos. 3023-3024/2000 have been filed by defendant No.7 Mohd. Khasim
against the decision in RFAs No. 196/90 and RFA No. 561/87 and Civil Appeal
Nos. 3025- 3026/2000 have been filed against the same judgment in disposing of
RFA No. 824/87 and RFA No. 562/87.
on behalf of Mohd. Khasim, the appellant in all these four appeals, Dr. Nafis
Ahmed Siddiqui, learned advocate, submitted that the High Court had erred in
coming to a finding that neither the Release Deed nor the Trust Deed had been
acted upon and that the estate of Mohd. Imam Saheb was, therefore, open to
partition amongst his heirs.
submitted that there was sufficient material on record to show that after the
execution of the Release Deed, Mohd. Imam Saheb recovered certain properties
from his second wife, Hafiza Bi. He also urged that the reasons given by the
learned Single Judge of the High Court in arriving at the conclusion that the
Trust Deed had also not been acted upon, were wholly erroneous and without any
the trial court had also committed an error in holding that only some of the
properties were wakf properties which should vest in the 1st defendant while
the other properties were to be partitioned. According to Dr. Siddiqui, the
trial court ought to have held that the entire suit properties were trust
properties and/or comprised a Wakf- al-al-Aulad.
submitted that the Appeal
misconstrued and/or misunderstood the principles governing the creation of wakfs
and trusts in coming to the conclusion that the Trust Deed had to be rejected
in toto. It was also submitted that although it was nobody's case that that the
Trust Deed was in effect a Will, the Appeal Court arrived at an extraneous
finding that if the same was to be construed as a Will, it could not operate on
more than 1/3 of the net assets for the benefit of a wakf which might have been
created thereby. Dr. Siddiqui pointed out that the error in the thought process
of the High Court would be glaringly evident from its finding that once the
trial court found that the Trust Deed was neither a gift nor a Will simpliciter,
but came nearest to being a non-testamentary wakf, there was no question of
such a wakf and there was no question of it coming into force from the date of
on the other hand, contended that the recitals in the Trust Deed itself would
indicate the nature of the document. It was urged that although the expressions
used in the document (Ext.D-7) seemed to indicate that late Mohd. Imam Saheb
had created a trust of his properties, the use for which the trust properties
and the usufructs were to be utilized made it clear that Mohd. Imam Saheb's
real intention was to create a wakf. Dr. Siddiqui urged that the Mohammedan Law
recognized the formation of private wakfs for the benefit of the dedicator (wakif)
and his family members, which among Mohammedans is considered to be a pious
submitted that all doubts relating to the creation of such wakfs were put at
rest by the enactment of the Musalman Wakf Validating Act, 1913. Dr. Siddiqui
also urged that under the Indian Trust Act, 1882, there is provision for making
a simple trust in the English form, but there is no concept of family
settlement as provided under the Mohammedan Law for the creation of private wakfs
generally known as Wakfs-al-al-Aulad.
pointed out that each of the duties entrusted to the trustees who were to come
into the management of the properties after the death of Mohd. Imam Saheb, were
recognized by Mohammedans to be pious and charitable and also religious in
nature which gave the document the distinct flavour of a Wakf-al-al Aulad ,
which fact had been correctly noticed by the trial court in respect of the
properties included in the Trust Deed and/or Wakf-nama .
the trial court had gone wrong was in arriving at the conclusion that
properties subsequently acquired by the estate of Mohd. Imam Saheb did not form
part of the dedicated properties and were, therefore, partible.
the principle of law being sought to be urged by Dr. Siddiqui regarding the
creation of a Wakf-al-al-Aulad is well established, there is no need to refer
to the various decisions cited by him in that regard.
next contended that mere declaration of an intention to create a Wakf is
sufficient to create such a Wakf and it was not necessary that possession was
required to be delivered as in the case of a gift. It was also urged that from
the contents of a document if it could be made out that the executant had
wanted to create a Wakf-al-al-Aulad, though not mentioned in express terms, an
inference in favour of the creation of a Wakf could be drawn. In support of
such submission, reference was made to a decision of this Court in the case of Garib
Das and Ors. vs. Munshi Abdul Hamid and Ors., reported in AIR 1970 SC 1035.
Reference was also made to various other decisions of different High Courts
which explain the same principle.
question of Ext.D-21, which was an unregistered document said to have been
executed on 10th April, 1963 cancelling the Trust Deed dated 29th February,
1960, it was urged that the trial court had rightly chosen not to rely on the
same since cancellation of a registered document could only be done by virtue
of another registered document.
concluded on the note that if it is accepted that by virtue of the Deed of
Trust, a Wakf-al-al-Aulad, was in effect created, then the properties
comprising the said Wakf were not partible and the suit was liable to be
dismissed and the judgment and decree of the High Court in its entirety and
that of the trial court partly, were liable to be set aside and the suit was
liable to be dismissed.
Ahmad, learned advocate, who appeared for some of the respondents did not
dispute the different propositions of law urged by Dr. Siddiqui, but contended
that they could not be applied to the facts of the instant case. He urged that
in order to constitute a Wakf, the properties dedicated must vest in God and
even if the intention was to create a Wakf-al-al-Aulad, the ultimate benefit
must also vest in God. Mr. Ahmad submitted that in the instant case there is no
express dedication of the Wakf properties in God and in the absence of such a
provision, it could not be presumed that the executant had intended to create a
Wakf and not a simple English Trust as indicated from the document itself. It
was also submitted that there is no legal bar in the creation of a trust for
the objects indicated in the Deed of Trust (Ext.D-7), though it could be
contended that they are also the lawful objects of a Wakf-al-al-Aulad or even a
according to Mr. Ahmad the Trust Deed had not been acted upon, as had been
rightly found by the High Court, inasmuch as, the executant had reserved to
himself the power to alienate the properties forming the subject- matter of the
Trust Deed. Furthermore, neither the executant nor his descendants had ever
asserted that the properties in question constitute a trust. It was urged that Mohd.
Imam Saheb died intestate on 7th August, 1969
leaving behind the suit properties, both movable and immovable, which he had
acquired during his lifetime and after his death the same had been jointly
owned and possessed by the plaintiff and the defendants as his heirs. Since the
parties had been unable to arrive at an amicable settlement, in respect of
their respective shares in the suit properties, the plaintiff was compelled to
file a suit for partition and separate possession of his 2/13 share therein. It
was urged that the Release Deed dated 18th August, 1958 was not binding on the plaintiff
since it had been executed only to satisfy the wishes of Mohd. Imam Saheb. It
was nothing but a sham document, not acted upon and it did not bind the
plaintiff nor did it take away the plaintiff's right to inherit the suit
apart from defendant No.7 (Mohd. Khasim), all the other heirs of Mohd. Imam Saheb
supported the plaintiff and none of them supported the claim of defendant No.7
that the executant had intended to create a Wakf-al-al-Aulad or even a Trust.
support of his submissions that the executant of the Release Deed did not
prevent the plaintiff from demanding a share in the estate of Mohd. Imam Saheb,
reliance was placed on a decision of this Court in the case of Gulam Abbas vs. Haji
Kayyam Ali and Ors., AIR 1973 SC 554, in which it was inter-alia observed that
the renunciation of a supposed right based upon an expectancy, could not, by
any test found there, be considered prohibited. The binding force in future of
such a renunciation would, even according to strict Muslim jurisprudence,
depend upon the attendant circumstances and the whole course of conduct of
which it forms a part.
will be evident from what has been set out hereinabove, the outcome of these
appeals will depend on an interpretation of the document executed by Mohd. Imam
Saheb on 29th February, 1960 and styled as a "Deed of Trust".
noticed hereinbefore, the trial court had held that the said document purported
to create a Wakf al-al-Aulad in respect of the properties indicated therein and
that the said properties could not form the subject-matter of a partition suit.
However, the trial court went on to hold that the other properties forming part
of the estate of Mohd. Imam Saheb were his secular properties and were,
therefore, partible amongst his heirs. The High Court reversed the said
decision of the trial court as far as the finding regarding the creation of a wakf
is concerned. The High Court, on a construction of the said Deed, held that
neither had a wakf been created nor a valid trust and that both the Release
Deed and the Trust Deed were invalid and the properties of Mohd. Imam Saheb were
capable of being partitioned amongst his heirs.
perusal of the Release Deed dated 18th August, 1958 executed by Mohd. Dastagir,
the plaintiff in the suit, and the Deed of Trust dated 29th February, 1960 executed by Mohd. Imam Saheb, we
are unable to agree with the findings both of the trial court as well as the
High Court for the reasons hereinafter following.
plain reading of the document dated 29th February, 1960 indicates that Mohd. Imam Saheb had
intended that his properties, both movable and immovable, should remain in-
tact for the objects indicated in the Deed. It is also clear from the recitals
in the Deed that he did not want his estate to be alienated by any of the
trustees who would be in management, by reserving the power of alienation only
to himself and that too for buying other properties which were to vest in the
Trust. The objects for which the income from the properties were to be expended
are mostly of a pious and religious nature. According to Mohammedan jurists,
the term 'Wakf' literally means dedication or as noted by Mulla in his
"Principles of Mohammedan Law", the permanent dedication by a person
professing the Mussalman faith of any property for any purpose recognized by Mussalman
law as religious, pious or charitable. The desire of Mohd. Imam Saheb to tie up
the properties so that they would not be dissipated and the objects on which
the usufructs of the properties were to be spent, most certainly appears to
have influenced the thinking of the trial court in holding that Mohd. Imam Saheb
had wanted to create a wakf. The said reasoning was not accepted by the High
Court. However, the High Court also went wrong in holding that a valid trust
had not also been created by the document of 29th February, 1960. In fact, while we agree with the High Court on the
first count, we are unable to agree with the High Court on the second count. In
other words, we agree with the High Court's finding that no wakf had been
created by the aforesaid document but at the same time we are also of the view
that it was Mohd. Imam Saheb's intention to create a valid trust.
urged both by Dr. Siddiqui and Mr. Mushtaq Ahmad, in order to constitute a wakf,
there must be a permanent dedication of the properties in question in favour of
God Almighty and while the objects of the wakf may initially be for the benefit
of the wakif's family and other descendants, the ultimate beneficiary had to be
God. Neither of the two above conditions are fulfilled by the document dated 29th February, 1960. The other important test is the
nature of inalienability of the properties forming the nucleus of the wakf.
Once a wakf is created, the title of the wakif in the dedicated property is
extinguished and vests in God. The wakif is entitled to reserve power to
alienate any portion of the wakf properties, but for the benefit of the wakif.
In the instant case, the executant had reserved to himself the power to
alienate the trust properties, but one of the conditions stipulated in the deed
was that his two minor daughters were to be given immovable properties worth Rs.8,000/-.
A further direction was given by the executant that after his death his
daughters, Mymoona Bi and Fathima Bi, were each to be given a share of the
immovable properties of the value of Rs.8,000/- on condition that they would
not be entitled to the said immovable properties if they had no male issues. A
specific direction was given that the properties given to Fathima Bi or Asha Bi
would also revert to the Trust if they had no male issues.
aforesaid directions run contrary to the concept of wakf and the more
appropriate view appears to be that the executant intended to create a simple
in order to create a valid wakf it is not necessary to use the term 'wakf' in
the document in question, except for providing for the performance of certain
religious ceremonies, pious and charitable duties, there is no mention that the
dedicator had ever intended that the properties forming the subject-matter of
the trust should constitute a wakf. The executant appears to have deliberately used
the expression "trustee" and not "Mutwalli" which would
have ended the controversy that has now arisen.
law is quite clear that there is no bar to a Mohammedan creating a simple
English Trust. It is not always necessary that in order to make a settlement of
his properties, a Mohammedan has always to create a wakf. In fact, the said
view has been expressed in a Division Bench decision of the Madras High Court
in Kassimiah Charities Rajagiri vs. Secretary, Madras State Wakf Board, AIR
1964 Madras 18. In the said case, while
confronted with a similar question, the Division Bench observed that a Muslim
can endow properties to charities either by adopting his favourite mode of
creating a wakf or by endowing property conforming to the law of Trusts. The question
whether a particular endowment amounts to a wakf under the Mohammedan Law or to
a Trust as recognized by modern jurisprudence, will have to be decided
primarily on a true construction of the document establishing the charity.
it has also been stated in the said decision that vesting of a power of
alienation by way of exchange or sale under the document creating wakf is not
inconsistent with the document constituting a wakf under the Muslim Law. A
dedication to a wakf will not, therefore, cease to be such merely because a
power is reserved in the Mutwalli to exchange the wakf lands with other lands
or to sell them and purchase other lands so that the lands so taken in exchange
or by purchase, might become the subject of the wakf.
present case, the power of alienation has been reserved only to the founder of
the trust and all the other trustees have been prohibited from doing so.
Accordingly, the observations made in the aforesaid decision regarding the
power of alienation reserved to Mutwalli does not really help the case of the
appellant who is interested in establishing that the properties were wakf
view, in the face of the recitals contained in the document of 29th February, 1960, there was no material for the High
Court to observe that after taking all the documents together, the final
irresistible inference is that there was no valid trust nor a valid wakf in the
eye of law. Such a finding is completely contrary to the document itself and
has to be set aside.
as the Deed of Release is concerned, the same loses much of its significance
once it is established that the properties forming the subject-matter of the
document dated 29th February, 1960 comprises a trust. The properties in
question, therefore vests in the trustees for the time being in management of
the same and are not partible amongst the heirs of late Mohd. Imam Saheb.
Trust Deed also makes it clear that all properties acquired in future must be
considered to be part of the trust properties and hence the trial court erred
in holding that except for the properties mentioned in the Trust Deed, the
other properties of Mohd. Imam Saheb were secular in nature.
both the judgments and decrees of the trial court as well as that of the High
Court are liable to be set aside. The appeals preferred against the common
judgment dated 5th October, 1998 passed by the Karnataka High Court in the four
appeals preferred against the judgment and decree of the trial court are
dismissed and the suit filed by Mohd. Dastagir, respondent No.1 herein is
regard to the peculiar facts involved, the parties will all bear their own costs.