Thakur Mohd. Ismail Vs. Thakur Sabir
Ali  INSC 108 (26 March 1962)
26/03/1962 WANCHOO, K.N.
CITATION: 1962 AIR 1722 1963 SCR (1) 20
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.
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 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 22 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
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
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.
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 24 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.
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, 25 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 26 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 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
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
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 .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 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 something 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 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 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 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 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
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 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, any
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 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). 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 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 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.