Mohammad Moshin vs Commissioner of Wakf

S.R. Das Gupta, J.—This is a suit instituted by Mohammad Moshin, a lunatic represented by his next friend and manager one Abdul Waheb, inter alia for a declaration that the proceedings held before the District Judge, 24-Pargands, are void, inoperative and not binding on the Plaintiff, that the properties mentioned in ch. A to the deed of wakf are secular properties and for a declaration that the said deed of wakf, dated October 30, 1932, is void, inoperative and not binding on the Plaintiff.

The Plaintiff''s case before me is as follows:

The Plaintiff is the son of one Syed Hossain Ali. Syed Hossain Ali had two wives. By the first wife he had three daughters, by the second wife he had a son and a daughter. The Plaintiff is the son by the second wife and the name if the daughter by the said wife is Nurjehan Begum. Abdul Waheb, who is the next friend of the Plaintiff n this suit, is the husband of Nurjehan Begum and is the brother-in-law of the Plaintiff. The Plaintiff was born on March 15, 1916. On November 20, 1924, Hossain Ali, he father of the Plaintiff, applied to the District Judge, 24-Pargands, to be appointed guardian of the person and property of the Plaintiff. By an order made by the District Judge, 24-Pargands and dated February 25, 1925, Hossain Ali was appointed certificated guardian of the person and properties of the Plaintiff. The Plaintiff was then the owner of the following properties:

(1) Half share in premises No. 15, Taltala Bazar Street, within the jurisdiction of this Court.

(2) Half share in premises No. 34, Taltala Bazar Street, also within the jurisdiction of this Court.

(3) Half share in premises No. 3, Earn Sankar Ray Lane, Calcutta, also within the jurisdiction of this Court.

(4) Half share in premises No. 82, Kareya Road, Calcutta, outside the jurisdiction of this Court.

The Plaintiff inherited the said share in the said properties from his deceased mother. The father of the Plaintiff, Hossain Ali, was also the owner of one-fourth share in all those premises, having inherited the same from his deceased wife, the mother of the Plaintiff. On March 21, 1932, Hossain Ali applied to the District Judge, 24-Pargands, for permission to make a deed of wakf-alal-aulad in respect of the said share of the minor in the said properties. In the said deed, Hossain Ali also included his share in the said properties and other properties belonging to him. On October 30, 1932, permission was given by the District Judge of 24-Pargands and a deed of wakf-alal-aulad was executed by the said Hossain Ali. On August 30, 1937, Hossain Ali died. On December 1, 1938, the Commissioner of Wakfs appointed the official mutawalli to be the mutawalli of the said Wakf estate u/s 40 of the Bengal Wakf Act. On December 7, 1938, the official mutawalli obtained possession. Thereafter, on January 5, 1940 an application was made by the Plaintiff through his present (sic) friend, Abdul Waheb, before the District Judge, 24-Pargandi for vacating the order granting permission to execute the sale deed of Wakf. The Plaintiff on March 10, 1940, was sent to the Lunatic Asylum at Ranchi. The case of the Plaintiff before m is that, for about four or five years before the death of his father Hossain AH, the Plaintiff had been a lunatic and he is still lunatic. On April 16, 1940, one Afzali Bai, a step-sister of the Plaintiff, was appointed mutawalli by the Commissioner of Wakf; On August 16, 1940, the official mutawalli was re-appointed a mutawalli. Thereafter, on July 9, 1940, the application of the Plaintiff for vacating the order granting permission by the District Judge was dismissed mainly on the ground that the question of setting aside the permission can be properly challenge in a suit. On January 31, 1941, the next friend Abdul Waheb was appointed guardian of the lunatic. Thereafter, on September 5, 1945, this suit has been filed by the Plaintiff through hi next friend Abdul Waheb.

The main contention of the Plaintiff before me is that the said order passed by the District Judge of 24-Pargands was without jurisdiction and that Hossain Ali had no power, either as a natural guardian or as certificated guardian, to make; wakf of the properties belonging to the minor. It is also the case of the Plaintiff that the said transaction, namely, the wakf deed, was not for the benefit of the minor.

The principal Defendant before me in this suit is the Com missioner of Wakfs. By a subsequent order, the official mutawalli has also been made a party to this suit. The contention of the official mutawalli is the same as that of the Commissioner of Wakfs, Bengal, in this suit.

At the trial before me, the following issues were raised:

Is the suit maintainable in view of the provisions of Order 1, Rule 8 of the Code of Civil Procedure?

Has this Court jurisdiction to entertain this suit in view of Section 41 of the Guardians and Wards Act?

Was the Plaintiff at any time, after attaining majority and three years before the institution of this suit, ii a sound state of mind?

Is the suit barred by limitation?

Are the proceedings before the District Judge without jurisdiction and void?

(a) Is the deed of Wakfnama void, inoperative and not binding on the Plaintiff?

(b) Is the deed of Wakfnama for the benefit of the minor?

What reliefs, if any, is the Plaintiff entitled to?

The principal contentions of the parties before me related to the issues Nos. 5 and 6(b). They are the principal issues which I have to decide in this case. The rest of the issues are of minor importance.

With regard to issue No. 5, Mr. Masud, appearing on behalf of the Plaintiff, contended before me that a Wakf is not a transfer and therefore, a Wakf does not come u/s 29 of the Guardians and Wards Act. If that is so, then, according to Mr. Masud, there is no provision for obtaining leave from the District Judge, 24-Pargands, for executing a deed of Wakf and therefore, the order which had been passed by the District Judge granting leave to the guardian to create a Wakf was made without jurisdiction and void. Mr. Masud also contended before me that the court, u/s 29 of the Guardians and Wards Act, can give permission only with regard to mortgage or charge or transfer, such transfer being a transfer by means of sale, gift, exchange or otherwise. He contended that the expression "otherwise" is ejusdem generis and means the kinds of transfer indicated, namely, gift, exchange or sale. Mr. Masud further contended that, under the Mahomedan law, nobody, except the owner of the property in question, can create a Wakf and under the Mahomedan law Wakf cannot be created except by an adult person. Mr. Masud drew my attention to Section 5 of the Transfer of Property Act for the purpose of ascertaining the definition of a transfer and contended that Wakf does not come within the definition of transfer as laid down in Section 5 of the Transfer of Property Act.

In order to determine whether a Wakf deed comes under the provisions of Section 29 of the Guardians and Wards Act and in order to ascertain whether it is a transfer, it is necessary to ascertain the proper conception of Wakf in Mahomedan law. In Grady''s edition of Hedaya it is laid down as follows:

Wakf, in its primitive sense, means detention. In the language of the law (according to Hanifa), it signifies the appropriation of any particular thing in such a way that the appropriator''s right in it shall still continue and the advantage of it goes to some charitable purpose in the manner of a loan. * * * According to the two disciples, Wakf signifies the appropriation of a particular article, in such a manner as subjects it to the rules of divine property, whence the appropriator''s right in it is extinguished and it becomes a property of God by the advantage of it resulting to his creatures. The two disciples, therefore, hold appropriation to be absolute; and consequently, that it cannot be resumed, or disposed of by gift or sale; and that inheritance also does not obtain with respect to it.

Sir Dinshah Mulla in his treatise on Mahomedan law has observed as follows:

Wakf as defined by Mahomedan jurists.--The terra Wakf literally means detention. The legal meaning of Wakf, according to Abu Hanifa, is the detention of a specific thing in the ownership of a wakif or appropriator and the devoting or appropriating of its profits or usufructs "in charity on the poor or other good objects". According to the two disciples, Abu Yusuf and Muhammad, 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". Baillie, 557-558. See Hedaya, 231, 234. A Wakf extinguishes the right of the wakif or dedicator and transfers ownership to God. (Notes under Article 173.)

Thus it appears that the original conception of Wakf according to Abu Hanifa was that it is nothing more than detention of a specific thing in the ownership of the wakif or appropriator and devoting or appropriating of its profits or usufructs "in charity "on the poor or other good objects". According to Abu Hanifa, the ownership still remains in the appropriator and the appropriator''s right in it still continues although the advantage of it would go to some charitable purpose in the manner of a loan. But this view seems to have undergone a change and according to the two disciples, Abu Yusuf and Muhammad, Wakf signifies the appropriation of a particular article in such a manner as subjects it to the rules of divine property and the appropriator''s right in it is extinguished. In other words, as Sir Dinshah Mulla puts it, 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. Both the learned advocates, appearing before me, conceded that in Mahomedan law the opinion of the disciples should prevail. Thus, when a Wakf is created, there is a complete extinction of the appropriator''s ownership in the subject-matter of the Wakf. The question then arises: Where does the ownership go? As Sir Dinshah Mulla puts it, Wakf extinguishes the right of the wakif or dedicator and transfers ownership to God. It becomes a property of God for the advantages of his creatures. If that is so, then it follows that creation of Wakf results in the extinction of the right of the owner and there is a corresponding right of ownership created in God. In other words, the effect of the creation of a Wakf deed is to transfer the ownership from the original owner of the property to the Almighty for the benefit of his creatures. Mr. Nausher Ali, appearing on behalf of the Commissioner of Wakf, contended before me that there may be various modes of transfer other than what is laid down in the Transfer of Property Act. He drew my attention to the preamble in the Transfer of Property Act and contended that the preamble shows that the Transfer of Property Act applies only to certain parts of the law relating to the transfer of property by act of parties. The Transfer of Property Act, according to him, is not exhaustive even with regard to transfers inter vivos and it simply deals with certain parts of the law relating to such transfer of property. It is in the light of this that the definition given in Section 5 of the Transfer of Property Act has to be considered. Apart from this, Section 5 of the Transfer of Property Act governs only cases of voluntary transfer and has nothing to do with the cases of involuntary transfers. I agree with the contentions of Mr. Nausher Ali on this part of the case. It appears to me that there may be modes of transfer other than what is laid down in the Transfer of Property Act. In my opinion, any transaction which extinguishes the interest of a particular person and creates interest in some other person is a transfer. In my opinion, the effect of creating Wakf is to extinguish the title of the owner and create title in the subject-matter of the Wakf in the Almighty and the transaction in question is nothing else than a transfer. Sir Dinshah Mulla in his treatise on Mahomedan Law observes as follows:

Under the Mahomedan law the moment a Wakf is created all rights of property pass out of the wakif and vests in Almighty. The Mutawalli hag no right in the property belonging to the Wakf; the property is not vested in him and he is not a trustee in the technical sense. (Article 163B.)

As I have already indicated, Sir Dinshah Mulla has also expressed clearly the view that a Wakf extinguishes the right of the wakif or dedicator and transfers ownership to God.

Sir Syed Ameer Ali, in his book on Mahomedan Law, has also taken the same view. At p. 347 the learned author observes:

In a gift or hiba, the donee is a human being, in a Wakf (for whatever purpose made so long as it is not immoral) the donee is the Almighty God. In hiba, the object is to pass the property from one human being to another; in a Wakf, the object is to keep the property in custody of the Almighty for the benefit of the mankind.

Thus, the creation of the Wakf deed amounts to transferring the property to the Almighty for the benefit of his creatures. 1 That being so, I cannot see why Section 29 of the Guardians and Wards Act would not be applicable to the case of a Wakf. Whether the court would in a particular case grant sanction to the creation of Wakf is of course a different matter. With regard to the contention of Mr. Masud, namely, that the word "otherwise" is ejusdem generis and signifies the same classes of transfer mentioned before, namely, sale, gift or exchange, I am unable to accept the said contention. In my opinion, the expression "otherwise" is meant to include all other classes of transfer which are not covered by sale, gift or exchange and the Wakf deed is such a class of transfer.

Mr. Masud then contended that, under tie Mahomedan law, nobody except the owner of the property can create a wakf and he relied on certain passages in Sir Dinshah Mulla''s Mahomedan Law where the learned author observes as follows:

The property dedicated by way of wakf must belong to the wakif (dedicator) at the time of dedication (Mulla''s Mahomedan Law, Article 176).

He also contended that, under the Mahomedan law, a person creating a wakf must be of sound mind and not a minor. He drew my attention to the following passage in Dinshaw Mulla''s book on Mahomedan Law:

Every Mahomedan of sound mind and not a minor may dedicate his property by way of wakf. (Mullah''s Mahomedan Law--Art. 147.)

It is true that under the Mahomedan law, a natural guardian, whether de facto or legal, has no right to create a wakf of the estate of the minor; but the position which I have to consider is a position under the Guardians and "Wards Act. The guardian Hossain Ali in this case was appointed by the court under the Guardians and Wards Act. The person who has been appointed guardian under the Guardians and Wards Act derives his authority from the said Act and if there is any provision in the said Act authorising him to do a particular thing, he would be entitled to do it irrespective of the fact that, under the personal law to which the minor and/or the guardian may belong, he is not permitted to do such an act. That being so, I cannot accept Mr. Masud''s contention on this point. I have come to the conclusion that the first contention of Mr. Masud must fail.

The other substantial question in this case is whether the transfer in question was for the benefit of the minor. Mr. Nausher Ali, appearing on behalf of the Commissioner of Wakfs, frankly confessed before me that he cannot maintain the extreme position, namely, that the District Judge''s permission is conclusive on this point; in other words, the fact that the District Judge has sanctioned the transaction would not prevent me from enquiring in this suit whether the transaction in question was for the benefit of the minor or not. But he contended that the fact that the District Judge has put his sanction on the transaction creates a strong presumption in favour of the transaction being for the benefit of the minor. But he quite candidly stated before me that that does not mean that this Court is powerless to go into the question as to whether the transaction was for the benefit of the minor. As to the question whether the transaction was for the benefit of the minor, I have come to the conclusion, after considering all the facts and circumstances of this case, that the transaction in question cannot be held to be for the benefit of the minor.

(Here His Lordship discussed the evidence.)

On a full consideration of the matter I have come to the confusion that the transaction in question cannot be said to be for the benefit of the minor. These, as I have already indicated, (sic) the main contentions of the parties before me.

With regard to the first issue, namely, whether the suit'' is maintainable, in view of the provisions of Order 1, Rule 8 of the Code of Civil Procedure, it seems to me that the Commissioner of Wakfs as been made a party to this suit and he is representing all the interest of the Wakf and the official mutawalli has also been made party to this suit. In the circumstances, the Wakf estate has been fully represented before me. In the premises, I cannot accept the contention that the suit must fail because of the revision of Order 1, Rule 8 of the Code of Civil Procedure.

With regard to issue No. 2, namely, whether this Court has jurisdiction to entertain this suit, in view of the Guardians and Vards Act, Mr. Nausher Ali conceded, provided I am satisfied bat the transaction in question was not for the benefit of the (sic), that I had jurisdiction to decide this matter. But, as have already indicated, his contention was that there is a strong resumption in his favour in view of the fact that the District-Judge has sanctioned the transaction. In my opinion, this issue should also be answered in the affirmative.

With regard to issue No. 3, namely, whether the Plaintiff as at any time a lunatic or of unsound mind and if so, was (sic) a lunatic for a period of three years prior to the institution f the suit, Abdul Waheb, the next friend of the minor, has given evidence before me and there is also the evidence of one Nuruddin.

(Then His Lordship discussed the evidence.)

That being so, this issue should also be answered in favour f the Plaintiff.

With regard to issue No. 4, the question of limitation depends upon the question as to whether the Plaintiff was at any time a (sic) and whether he was such a lunatic for a period of three fears prior to the institution of this suit. This question I have already decided in favour of the Plaintiff. That being so, in my opinion, there is no question of limitation. This issue will also be decided in favour of the Plaintiff.

Issue No. 5: I have already decided this issue in favour of he Defendant and I have held that the proceeding before the District Judge was not without jurisdiction.

Issue No. 6 should be answered in favour of the Plaintiff, hold that the deed of Wakfnama is void, inoperative and not (sic) on the Plaintiff. I have already held that the deed of wakf is not for the benefit of the minor.

The result, therefore, is that the Plaintiff is entitled to the following reliefs. It is declared that the properties mentioned in sch. A to the Wakf deed, namely, premises No. 3, Ram Sanka Ray Lane, 34, Taltala Bazar Street and 15, Taltala Bazar Street are secular to the extent of the Plaintiff''s half share therein There will also be a declaration that the said deed of Wakf to the extent of the shares of the Plaintiff in the properties mentioned therein is void and inoperative and not binding on the Plaintiff. If necessary, the said deed so far as it relates to the share of the Plaintiff should be set aside and cancelled. Mr. Masud appearing on behalf of the Plaintiff agreed that the actual possession o the property in question should not be made over to his client but to the Official Trustee. In other words, his client does no want to remain guardian of the property of the minor. In the circumstances I am making an order that the Commissioner o Wakfs do deliver up possession of the minor''s share in the said properties to the Official Trustee and the Official Trustee (sic) administer the estate of the minor so long as he remains lunatic. I appoint the Official Trustee guardian of the property of the Plaintiff. The Plaintiff''s costs of this suit will bi paid out of the minor''s properties. The Commissioner of Wakf will be entitled to the costs of this suit out of the properties of Hossain Ali in the said Wakf estate. The Commissioner p'' Wakfs'' costs will be as between attorney and client. The official mutawalli is to deliver up possession of the properties of the Plaintiff to the Official Trustee. Official mutawalli''s costs will also come out of the estate. There will be a decree for accounts against the Defendants of their dealings with the minor''s estate. Certified for two counsel.