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Judgment
S.N. Phukan, J.—This second appeal is directed against the Judgment and decree of the learned District Judge, Kamrup at Gauhati in Title Appeal No. 5 of 1975. The learned District Judge reversed the Judgment and decree of the learned Asstt. District Judge No. 2 Gauhati in Title Appeal No. 4 of 1963. The appeal has been filed by the Defendant, namely, the Assam Board of Wakfs.
The suit was laid by the Plaintiff-Respondents for a decree, inter alia, for declaration of personal and secular right, title and interest over the suit property and also for a permanent injunction against the Defendants-Appellants, namely, the Slate of Assam and Assam Board of Wakfs claiming the suit property as a Wakfs property and from collecting rents from the tenants and/or otherwise disturbing or interfere-ring with the peaceful possession of the Plaintiff over the suit property. The suit properly measuring about 14-Bs, 2-Ks of land is situated in the commercial area of the Gauhati city.
It may be stated that during the pendency of the suit, Plaintiff No. 1 Khan Shahib Khalilur Rahaman died and as his two sons were already on record as Plaintiffs Nos. 2.and 3, it was not necessary to substitute his legal heirs-Plaintiff No. 4 was the minor son of the Plaintiff No. 2 and Plaintiff No. 5 was the minor son of Plaintiff No. 3 and they were represented by their next friend, namely, their fathers. The suit land originally belonged to late Ohidur Rahman, father of the Plaintiff No. 1. According to Plaintiffs, it transpired that by a Wakfnama, namely, a deed of Wakf dated 20.3.1890 said Ohidur Rahman purported to create a Wakf of the subject matter, namely, the suit property. Plaintiffs have alleged that this deed of Wakf was only a mere paper transaction and was never acted upon and no Wakf was intended to have been created. Moreover, this deed of Wakf is vague and illusory for uncertainties and as such void, ab nitio, inoperative and without any effect and therefore, not binding on the Plaintiff No. 1 and other legal heirs of late Ohidur Rahman who are governed by Sonni School of Mohammadan Law. Late Ohidur Rahman died soon after the Wakfnama was created and thereafter according to Plaintiffs his son, Plaintiff No. 1 had been enjoying the property absolutely as his personal and secular property openly, uninterruptedly and adversely against all persons interested therein, either as a private or public Wakf properly. Both the mother and sister who survived late Ohidur Rahman died and had filed acknowledgement about the enjoyment of the suit property by the Plaintiff which was subsequently recognized by his sister by executing a deed of relinquishment in his favour on 30.11.1931., Part of the suit land was also granted in the name of the Plaintiff No. 1 who was also known as Nebiruddin, In the settlement operations in the year 1892-93, 1911-12, and 1952-53, the name of the Plaintiff was shown as owner of the suit land in revenue record. The Plaintiff No. 1 by a registered deed of settlement dated 16.8.1956 allotted a pan of the suit land to his two sons, namely, Plaintiff Nos. 2 and 3 and also to his minor grand sons, namely, Plaintiff Nos. 4 and 5.
It appears that earlier some suits were filed by the Plaintiff No. 1 including the title Suit No. 16 of 1933 before the learned Sub-ordinate Judge of Lower Assam Valley for ejectment of Sukhilla Seikh and according to the Plaintiffs in that suit the question whether the suit property was Wakf property or not was never decided finally as it was raised only incidentally.
The State of Assam, Defendant No. 1 under the provisions of Muslim Wakfs Act, 1954 constituted the Assam Board of Wakfs, Defendant No. 2 as required under the above Act. The Assistant Commissioner of Wakfs of Assam also made an enquiry and published a report and subsequently a notification dated 8.1.1958 was issued in the Assam Gazettee that the suit property was a Wakf Estate and Plaintiff No. 1 was a Mutawalli. According to Plaintiffs, this was done without giving a chance of hearing to the Plaintiffs and notification was published without examining the report of the Asstt. Commissioner of Wakfs as required under the law. Therefore, according to Plaintiffs, tire said notification is without jurisdiction and as such null and void on the grounds stated in paragraph 10 of the plaint. As the said notification has clouded the tide of the Plaintiffs over the suit property and tire Defendant No. 2 has ascertained right over the suit property, the present suit has been filed. This notification was challenged before the High Court by filing a petition under Article 226 of the Constitution but the petition was rejected as the Plaintiffs have alternative remedy under die Muslim Wakfs Act, 1954 and accordingly, me present suit has been filed.
Both the State of Assam and the Assam Wakf Board have filed two separate written statements. Both me Defendants have raised various legal pleas.
All the factual statements made in the plaint have been denied. It has also been denied that the Wakf in question created by a registered deed dated 20.3.1890 is vague, illusory for uncertainties of the purpose and it is void, ab-initio, inoperative, The alleged relinquishment of the right by the sister of the Plaintiff No. 1 in favour of the Plaintiff No. 1 has been denied.
According to Defendants, the suit land was dedicated as Wakf property by late Ohidur Rahaman by registered Wakf deed dated 20.3.90 executed by him as stated above and he appointed himself Mutawalli during his life time and managed the property in that capacity while he was alive. Before his death he appointed Plaintiff No. 1 as a Mutawalli to manage the property and during his period of minority appointed his wife as Mutawalli. It has also been stated that when the Plaintiff No. 1 became major he acted as a Mutawalli of the Estate and accordingly the periodic patta No. 148 of the suit land was issued in the name of the Plaintiff No. 1 as he was a Mutawalli. It has been stated that the Plaintiff No. 1 wanted to put the entire Wakf property in the Revenue sale to change the character of the Wakf and as this information was received by Muslim Jamat the revenue authority was approached to record the name of the Plaintiff No. 1. on behalf of Muslim Jamat to avoid future sale. It has also been alleged that on objection being filed Muslim Jamat and others new patta No. 376 for the suit land was not issued in the name of the Plaintiff No. 1 in the last re-settlement operation. According to Defendants-Plaintiffs and their predecessors never enjoyed and possessed the suit land as their personal or secular property openly and interruptedly and adversely against all interested therein as public Wakf property. According to Defendants in respect of the suit land P.R. Case No. 11, 51/53 was started and many prominent and leading Muslim persons gave evidence to the effect that the suit land was a Wakf property and the Plaintiff No. 1 acted as Mutawalli. It has also been stated that in Title Suit No. 16 of 1933 the Second Additional Judge, Assam Valley Division held the suit land as Wakf property on the basis of the Wakf deed. It has also been held that in T.S. No. 154/52 which was filed by the Plaintiff No. 1 to evict Md. Abdul Nakim who was a permanent privileged tenant being the Khadim of the Muslim Jamat enjoying a part of the suit land free of rent, but the suit for eviction was dismissed.
After coming into force the Muslim Wakf Act, 1954, the State of Assam, Defendant No. 1 legally and properly constituted the Wakf Board, Defendant No. 2 and also appointed Assistant Commissioner of Wakf u/s 4 of the Act to undertake a survey of Wakf Estate. The said Assistant Commissioner after hearing the Plaintiff No. 1 and the Muslim Jamat reported that the suit property was a Wakf properly and the Plaintiff No. 1 was a Mutawalli. The copy of the report was sent to the Wakf Board and it was duly examined and published in the gazette u/s 5 of the Act. The fact that the Plaintiff came to this Court by filing a Writ petition has also been stated., According to the Defendant No. 2, the religious festivals held in the suit land were financed from the income of the Wakf property and expenses for other religious and pious functions were also occasionally met from live said income.
The State of Assam in its written statement has also supported the case of the Defendant No. 2, namely, the Wakf Board. It has also been stated that the Plaintiff No. 1 had no authority or right in his individual capacity to mortgage or lease the Wakf property in violation of Section 207 and 208 of the Mohammedan Law.
On the pleadings, the learned trial court framed as many as 12 issues. For the Plaintiffs 17 witnesses were examined and the evidence of Plaintiff No. 1 which was taken on Commission has also been accepted into evidence by the learned trial court. Defendants examined as many as 6 witnesses 2 witnesses were examined as court witnesses.
The learned trial court has noted at length various decisions of the Privy Council, Supreme Court as well as different High Courts and has quoted regarding law of Wakf as per authority on the principles of Mohammedan Law.
On the facts, the learned trial court accepted the registered wakf deed on the ground that all the attesting witnesses were dead. The trial court also noted that though Plaintiffs were asked to produce the original wakf deed, they failed to do so and accordingly, the certified copy marked as exhibit-ka was accepted. It was not necessary for the trial court to do so in as much as the Plaintiffs have admitted the pleadings the execution of the deed of wakf. The contention of deed of wakf is as follows:
This wakfnama executed by Munsi Ohidur Rahman, son of late Tekenger Mulla of Gauhati P.S. and Registrary-District Kamrup is to the effect following:
In the town of Gauhati in lot Fancybazar, within Touzi No. 53 on the basis of patta No. 368 of the settlement of 1889-90, I have lands measuring 14 Bs, 2 Ks as described in the schedule below, the government revenue payable being Rs. 30/- local rate Re. 1-14 (one rupee and fourteen annas), this land in its entirety and pucca house standing thereon which is 30 cubits in length and 151/2 cubits in breath and four roofed tin house which was 21 cubit long and 12 cubit wide and the Municipal tax for which has been assessed from 1889 to 1890 at Rs. 12/- (Rupees twelve). These two houses and the lands will be about Rs. 20,000/- (Rupees twenty thousand). I make a wakf of these two houses and the land today in the name of this Great God for religious purposes. With effect from today, neither myself nor my heirs etc. will be entitled to sell, encumber or transfer the said two houses and lands. I myself shall continue as Mutawalli of the said wakf properties during my life lime and at the time of my death, I shall appoint some other Mutawalli. Other Mutawalli shall be bound to upend the income for those charities which I have been doing. The Mutawalli will be competent to approach this Court to increase or decrease the rent of tenant for settlement of tenant and also for ejecting tenant. The houses now standing but not included in the Wakf property, or houses that might be constructed in future will not form part of the Wakf properly. Neither myself nor my heirs will have any right in the Wakf property and no Mutawalli will have any right of transfer by sale, gift mortgage etc. Finis, 20th March. 1890. Boundaries of the Wakf properties.
North - Public Road i.e. Mission compound.
South - Public Road i.e. lands of Haji Khelafat Ali.
East - Public Road i.e. Ojaman Babu''s land.
West - Workshop i.e. Government laud.
Witness: Muhsi Majmul Hossain, Gauhati, Fansibazar
Written by - Bisweswar Mukhopadhyay. Ohidur Rahman.
The learned trial court considered the contents of the Wakfnama and noted that Ohidur Rahman made himself a Mutawalli during his life lime and as his eldest son original Plaintiff No. 1 who was a minor appointed his mother as Mutawalli which according to the learned trial court a woman can be Mutawalli in as much as in Wakfnama in question no religious duties were imposed on the Mutawalli to be performed. The learned trial court also took into consideration the evidence of witnesses for the Defendants and noted that there was no vagueness in the wakfnama or uncertainities. According to the learned trial Court Ohidur Rahman was a pious person and the suit property was self--acquired property and also noted that during his life time late Ohidur Rahman did a lot of pious, charitable functions such as sending poor Muslims for Haj, conversion of one person to his religion and also incurring expenditure for poor persons for performing the religious rites on the death of any member of the family.
Regarding the declaration of the property in question as a wakf property u/s 5 of the Wakf Act, 1954 and publishing the list of wakf properties after survey, the learned trial court held that the Assistant Commissioner appointed for enquiry made proper survey of all the wakf properties and also examined witnesses and thereafter submitted the report which was duly considered by the Wakf Board and thereafter the notification declaring the suit land as wakf property was published vide exhibit - 4,
Regarding issue No. 3 i.e. whether the wakf deed was acted upon subsequently, the trial court noted that the wakf deed in question was considered in various suits by different courts such as Tide Suit 16/1933 and Rent Suits and at that time the Plaintiffs never raised any objection that the Wakf deed was not acted upon.
Proceedings by revenue court was also considered by the learned trial court and also the evidence in T.S. No. 86 of 1963 and thereafter came to the finding that the wakf deed was acted upon.
I have extracted some of the findings of the learned trial court in order to appreciate the findings of the learned lower appellate court.
The learned lower appellate court considered mainly the question whether "by this deed (Wakfnama) any Wakf was created within the definition of term given above". According to the learned lower appellate court by this Wakfnama which was in Bengali, the land and the houses were dedicated in the name of God for the purpose of" Sath Karjya". The lower appellate court also noted that Ohidur Rahman appointed himself as a Mutawalli relying on the principle of Muslim Law the Court noted that a wakf is possible only for religious, pious and charitable purposes recognised by Muslim Law. According to the learned lower appellate court the term "Sath Karjya" means virtuous or righteous act and as the term is very wide it may include every act which may be necessary "for everything in the World". Therefore, according to the learned lower appellate court it was doubtful whether "Sath Karjya" would come within the definition of Wakf under Muslim Law.
According to the learned lower appellate court under the Muslim Law there may be a valid work if the objects are indicated with reasonable certainities. But the present wakfnama is vague, illusory and uncertain. According to the learned lower appellate court in the deed, it has not been mentioned that any income from the properties would be spent only for the purpose of "recognised by Musalman Law". Therefore, it was held that the Wakfnama suffers from uncertainities and vagueness and such defect cannot be allowed to explain or remove by adducing evidence in view of Section 93 of the Evidence Act.
The court also found fault in appointing the mother of the original Plaintiff No. 1 as Mutawalli and further held that there was not a iota of evidence to give a picture that after the creation of Wakf the property in question was ever used by Muslim community for any purpose recognised by Muslim Law.
The court took into consideration the evidence on record and came to the finding that the rent received from the property by the original Plaintiff No. 1 was for his personal purpose and held that all along the property was used as personal property and not as a wakf property. It was also held that the intention of Ohidur Rahman was not to create a Wakf but to keep the property within his family.
Regarding adverse possession also the learned lower appellate court held in favour of the Plaintiffs.
In view of the above finding, the leaned lower appellate court decreed the suit.
The main point that has been urged is that the Wakfnama is void because of uncertainities, and it was never acted upon. It has also been urged that the deceased--Plaintiff No. 1 treated the Wakf property as his own and he gave lease etc in respect of the land in question. On the other hand, it has been urged on behalf of the Wakf Board that before coming into force of the Wakfs Act, 1954, the deceased--Plaintiff No. 1 used to carry on religious activities in his capacity as Mutawalli of the Wakf property.
This being a Second Appeal, I have to decide only the substantial question of law, namely, whether the Wakfnama is void of uncertainities and further if it is held that the Wakfnama was a valid one without any uncertainities whether legally Plaintiffs can take the plea mat the Wakfnama was never acted upon and therefore, it is not a valid one and that the Plaintiff No. 1 acquired adverse possession on the ground of treating the property in question as his personal properly.
Before I proceed to discuss with the facts of the case, let me at the out--set refer to some of the decisions of the Privy Council, Supreme Court and other High Court.
Incidently, I may mention that a point has been urged by Mr. Goswami on behalf of the Wakf Board regarding powers of this Court while deciding Second Appeal. The learned Counsel has drawn attention of this Court to the decisions of the Supreme Court in M/s. Dutta Cycle Stores and others Vs. Smt. Gita Devi Sultania and others, but this decision is regarding interpretation of Article 136 of the Constitution and the Apex Court held that normally the court does not interfere in a proceeding under the above Article on the questions of facts when all the courts below reached the same conclusion.
In Hira Lal and another Vs. Gajjan and others, the Apex Court considered the scope of Section 100(1)(c) of the CPC and held that error or defect in the procedure to which the clause refers is not an error or defect in the appreciation of evidence adduced by the parties on the merits and even if the appreciation of evidence made is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. It was however held that when the first appellate court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure and so also in a case whether the court below ignored the weight of evidence and allowed the judgement to be influenced by (sic) matters the High Court would be justified in (sic).
(sic)
(sic) Therefore, this is a case where reappreciation of evidence is necessary though this is an appeal filed u/s 100(1)(c) of the Code of Civil Procedure.
In AIR 1948 168 (Privy Council) it was held that the validity of a wakf involves that there was an intent ion to dedicate on the part of the wakif and where there is evidence that the wakfnama has been retained by the Wakif and never acted upon and property comprised therein has been dealt with by the Wakif as his own such evidence may lead to an inference that no dedication to Wakf was ever intended and that the deed was designed merely to provide a shield against possible claim which the Wakif anticipated might be made against him. It was also held that once, there is an effective dedication in Wakf it cannot be revoked; and breaches of trust on the part of the trustee however numerous, and extending 5 over however long a period cannot put an end to the trust.
In the case in hand, exhibit -- ka was a duly registered Wakfnama in which the Wakif declared himself as a Mutawalli and acted as such. There is no allegation that the Wakfnama was made to protect the property against my possible claim by other. Therefore, as there was a valid Wakfnama even if subsequently the trustee namely, the Mutawalli did not treat the properly as a Wakf property, it cannot put an end to the Wakfnama.
The Apex Court in Nawab Zain Yar Jung v. Director of Endowments AIR 1963 S.C. 965 held that the Mohammadan law 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.'' It was also held that as a result of the creation of a wakf, the right of Wakif is extinguished and the ownership is transferred to the Almighty and the Manager of the Wakf who is the Mutawalli has no right in the property belonging to the Wakf and the property does not vest on him.
The Apex Court in Ahmed G.H. Ariff and Others Vs. Commissioner of Wealth Tax, Calcutta, held that the moment a Wakf is created all rights of property pass out of Wakif and vest in the Almighty and the mutawalli has no light to the property belonging to the Wakif. It was also held that Mutawalli was not a trustee in a technical sense, his position being merely that of a superintendent or a manager and has no power without permission of the court to mortgage, sell or exchange Wakf property or any part thereof unless he is expressly empowered by the deed of Wakf to do so.
In Ghazanfar Hussin v. Mt. Ahmedi Bibi AIR 1930 Alla 169 it was held that where the settlor, after declaring the trust, appoints himself a mutawalli, the vital factor, which counts, is the transmutation of possession and where the character of the possession has altered by reason of the fact that possession is no longer held in the exercise of any right of ownership but vicariously for the benefit of the objects of the trust, the wakf prevails, inspite of the fact that there had been no mutation at all or that there was sonic delay in effecting the mutation. It was also held that where the objects of the endowment arc clear and certain, simply for the reason that no defined portion of the property or specified amounts of the usufruct have been dedicated, to charily of other religious, pious or charitable purposes of a permanent character recognised by the Mahomedan Law, the Wakf will not be invalid.
In AIR 1947 17 (Oudh) it was held that it is not necessary for the creation of a valid Wakf that the word ''Wakf'' should be used. When the intention to lake a valid Wakf is apparent or can be inferred from general tenor of the deed, or from the conduct of the donor or from the nature of the object in favour of which the grant is made. It was held that the document should be interpreted as a whole and the surrounding circumstances may be considered to interpret the words in the document and to ascertain the intention of the executant. I am in respectful agreement with the above two decisions.
In Mulla''s Principles of Mahomedan Law, Eighteenth Edition under Chapter -- XII, the Mahomedan Law regarding Wakf has been laid down. According to Section 173 Wakf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable. According to Section 174 such dedication must be permanent and not for a limited period. According to Section 175, the Wakf may be of any property boil movable and immovable. According to Section 176 the property dedicated must belong to the wakif. Section 178 defines objects of wakf and it provides hat the purpose for which a wakf may be created must be one recognized by the Mahomedan law as "religious, pious or charitable" and a Wakf may also create in favour of the settlor''s family, children and descendants. According to Section 179 the he object of a Wakf must be indicated with reasonable certainty; if they are not, the wakf will tie void for uncertainty. But it is not necessary that the objects should be named. Nor it is necessary, where the objects arc specified, to name the sum to be spent on each object. According to Section 183 a Wakf may be made either verbally or in writing. According to Section 187, a wakfnama by which immovable property of the value of the value of Rs. 100/- and more is dedicated by way of wakf, it has to be registered under the Indian Registration Act. According to Section 189 a testamentary wakf that is a wakf made by will, may be revoked by the wakif at any time before his death. According to Section 193, Wakf property cannot be alienated except in the cases mentioned in Sections 207 and 208.
According to Section 202 Mutawalli has no light of any wakf property and it is not vested on him. He is merely a superintendent or manager. I need not refer the Sections 207 and 208 regarding power of Mutawalli to sell, mortgage or grant lease as these questions do not arise in the present appeal.
Keeping in view the above law, let me examine form the facts of the case whether a valid Wakf was created in respect of the suit properly.
To sum up Wakf is a permanent dedication by a person professing the Mussalman faith of any properly whether movable or immovable or for any purpose recognised by Musalman law as religious, charitable or pious and such dedication must be of permanent nature. The property whether movable or immovable must belong to the Wakf. A Wakif is void for uncertainity. The Wakf can be created vivos or by a deed or by a will and if it is created by a deed and the property is immovable, and worth more than Rs. 100/-, it has to be registered. A wakf can be revoked only if it is made by a will and such revocation must be any time before death of a Wakif. As soon as the wakf is created, the properly at once passes God and neither it can be revoked nor the God can be divested from the property and the Wakf, even if Where is any subsequent breaches of the terms of the Wakf or abuse by the Mutawalli of his office. It is also immaterial whether provisions of the Wakf are carried out or not for that it is a matter of breach of trust only. It is also immaterial whether in case of immovable property whether the property was mutated in the name of Wakf or personal name of the Mutawalli in the revenue record.
In the case in hand, the Wakf was created by a registered deed, exhibit - ka and the Wakif namely, Ohidur Rahman appointed himself as a Mutawalli. There is no dispute that the property in question belong to the Wakif Ohidur Rahman and there is also no allegation that the Wakf was created only to resist claims from others in respect of Wakf properly. From the evidence, it appears that the Wakif after creation of the Wakf also did some religious and pious works. Therefore, the learned dial court rightly held that there was a Valid Wakf in the case in hand. This finding was not reversed by the learned lower Appellate Court. As soon as the Wakf was created by die registered deed, exhibit -- ka, the ownership of the Wakf property passed on at once to God. It may be stated that it is not the case of the Plaintiff that subsequently the Wakf was not acted upon, which under the Stated above will not invalidate the Wakf. Therefore, I have no resitation in holding that the Wakf was validly created as per law by registered deed, exhibit - ka as the value of the properly was more than Rs. 100/- and as such the property passed to God I also hold mat the wakif by appointing himself as Mutawalli treated the property as wakf properly.
Now the question is whether the object of the wakf was vague, not certain and as such it was not a valid wakf.
As stated above according to Section 178 of Mulla''s Principles of Mahomedan Law the purpose for which a Wakf may be created must be once recognised by Mohammedan Law as religious, pious or charitable. According to Section 179, the objects of a wakf must be indicated with reasonable certainty; if they are not, the wakf will be void for uncertainty. But it is not necessary that the objects should be named.
In Mariambi v. Fatmabai and Ors. AIR 1929 Bom 127 it was held that a bequest for "Dharma" "Khairat" etc. is void for uncertainty. In Abdulsakur Haji Vs. Abubakkar Haji Abba, it was held that a bequest for "Dharam Kriya" is not void for uncertainty.
In Mahomedali v. Lakhmichand AIR 1931 Sind 75 it was held that a bequest for Khairayati works is not a valid trust to which the courts would give effect.
In Masuda Khatun Bibi Vs. Mahomed Ebrahim, it was held that where a wakf contains no express reservation, the mere use of the word wakf cannot by itself be regarded as connoting as implied reservation of the ultimate benefit to the poor. It was also held that the Mussalman Wakf validating Act, 1913 must be deemed to have settled the rule of law as laid down by the Act and that the document creating a wakf cannot be a valid one unless and until it contains at least an implied reservation that the ultimate benefit from the property is to go to the poor or for religious, pious or charitable purposes of a permanent nature.
In Tahiruddin Ahmad Vs. Masihuddin Ahmad, it was held that a Wakf can be created for maintenance and support of the settlor''s family or descendants, provided that there is an ultimate gift of the whole property to charily, that is to say, the ultimate benefit is reserved for the poor or for any other religious, pious or of her charitable purposes and that the gift to charity is substantial.
In Mohammad Yusuf and Others Vs. Azim-uddin and Others, it was held that a trust for charity simplicitor so long as it is confined to charity exclusively is a perfectly good trust and it is not necessary that the objects of trust or charily need be specified. It was also held that a trust for Khairat or a trust for Khairati kam is a perfectly good trust and these terms may be treated as equivalent to charity and charitable objects, and in such a case specification of objects of charity is not necessary.
Mulla''s principles of Mahomedan Law which is an accepted authority and in view of the decisions of various High Courts quoted above let me summarise when a Wakf can be said to be void of uncertainty. A Wakf must be created for a purpose recognised by the Mahomedan Law as religious, pious or charitable and in doing so, it is not necessary that the objects should be named in the Wakf itself nor it is necessary to specify the amount to be spent. A wakf would be void if the object is not certain.
I am unable to agree with the law laid down by the Bombay and Sind High Courts in Mariambi (supra) and Mohomedali (supra) respectively as the settled position of law is Unit whether a wakf is void of uncertainty or not has to be decided by reading the entire Wakf deed as a whole. In case of oral Wakf also was the exact words used by the Wakif has to be taken into account. I agree with the ratio laid down by the Calcutta High Court in Smti Masuda Khatun Bibi (supra) that mere mentioning of the word Wakf is not sufficient to hold that the Wakf was valid, unless and until the Wakf so created provides a substantial amount for the religious, pious and charitable purposes of permanent nature recognised by Musalman Law.
Situated thus, let me examine whether by the present Wakf deed, exhibit - ka, a valid Wakf was created.
Coming to the case in hand from the registered Wakf deed, exhibit - ka, the Wakif has not only clearly stared that the deed was a wakfnama, but has also been indicated that the Wakf was made in respect of two houses and the land in the name of Allah for religious purposes. The expression used in the deed is for pious work, but this expression was governed by the word Allah. In other words, the income from the Wakf property was to be utilised for pious work under the Muslim law. Therefore, it cannot be said that the Wakfnama, exhibit --ka is vague and the purposes of the wakf are uncertain.
The Wakif Ohidur Rahman got himself divested of the property, the moment wakfnama was executed and registered and named himself as Mutawalli. There is clear evidence that before his death he used to spend money for religious purposes recognised by the Muslim Law such as sending persons for Haj, incurring expenditure for burial of poor Muslim persons and also for conversion. The evidence on record which has been duly noted by the learned trial court was completely ignored by the learned lower appellate court. Therefore, the finding is perverse.
According to learned lower appellate court, the wakf was not acted upon in as much as the land was used for performing Durgapuja, but I find from evidence that it was allowed to do so only for one year and this act cannot invalidate the Wakf.
It has been urged that the Wakf was not acted upon for long period by the late Plaintiff No. 1 who was the Mutawalli. That cannot be a ground to hold that there was no wakf. In fact, it is a breach of trust and for that purpose Almighty cannot be divested the wakf property.
It has also been urged that in the revenue record, the land was shown in the name of late Plaintiff No. 1 and not in the name of Wakf.
The Ghazanfar Hussain v. Mt. Ahmadi Bibi (supra) it has been held by the Allahabad High Court that a Wakf prevails even if there is no mutation at all or that there was some delay in effecting the mutation. I am in respectfully agreement with the above ratio and I may also add here that the mutation does not confer any title. Therefore, even if in the revenue record the name of late Plaintiff No. 1 was recorded, it would not mean that the suit property was not wakf property more particularly as there is a registered deed.
Regarding the claim of the Plaintiffs that they have acquired title over the Wakf property by adverse possession as per Section 217 of Mulla''s Principles of Mahomedan Law, a wakf property lost by adverse possession. But a mutawalli''s possession cannot be adverse to the wakf.
Late Plaintiff No. 1 was a Mutawalli. He could not have turned round and say that he acquired good title against the Wakf property by adverse possession. Of course, if a Trust is void, the question of adverse possession may arise as observed by the Bombay High Court in Fazlhussein Sharafally Vs. Mahomedally Abdulally Sassoor, and with respect I agree with the above views. In the case in hand, the wakf was not a void wakf as it was duly created as held earlier.
Regarding the submission of the learned Counsel for the Respondents that the Wakf was not acted upon, I have perused the finding of the learned trial court and there are sufficient evidence to show that even late Plaintiff No. 1 treated the property as Wakf property till the Act in question came into force.
Learned Counsel for the Respondents is trying to take a technical point regarding evidence of late Plaintiff No. 1 who was examined on commission, but I do not find any force in as much as this point has been elaborately dealt with by the learned trial court.
For the reasons stated above, I find merit in the present appeal and it is liable to be allowed which I hereby do.
It appears that there is an apprehension that as the property is a Wakf properly, it is controlled by the Wakf Board, but that is not so. The powers and functions of the Wakf is laid down in the Act itself.
The Wakf deed, exhibit - ka, Wakif clearly stated that the houses described in the Wakf deed would form part of the Wakf and not the other part of the land. In other words, the income derived from the houses which were in existence would only be spent for the purposes mentioned in the Wakf deed. The Wakif has also clearly stated that except the houses that existed at that time, other part of the land shall not be treated as a Wakf properly. Only condition that was laid down was that the land cannot be alienated in future. Therefore, the control of the Wakf Board in respect of the present Wakf property shall be confined only in respect of these two houses and income derived therefrom as mentioned in the Wakf deed, exhibit - ka and such control shall be exercised as stated above under the provisions of the Act. If any constructions have been erected or any income is derived from the part of the land, it cannot be treated as Wakf property.
In the result, the appeal is allowed by setting aside the impugned Judgment and decree passed by the learned lower appellate court and by restoring the Judgment and decree of the learned trial court subject to the conditions stated in the above paragraph.
The second appeal is disposed of accordingly. No costs.