Muhammad Ibrahim and Others vs Bibi Mariam

Ross, J.—The only question in this appeal is whether Bibi Sobratan, the aunt of the original appellant Ibrahim, dedicated her property to God and appointed the plaintiff-respondent, Bibi Mariam, the wife of Ibrahim, the mutawalli. It appears that Ibrahim has parted with the property. The Subordinate Judge decided in favour of Bibi Mariam and Ibrahim appealed; but he has withdrawn from the appeal which is now being prosecuted by his transferees.

The plaintiff''s case was that Bibi Sobratan dedicated the property by a verbal wakf; and subsequently, on 19th May 1923, nine days before her death, she confirmed the dedication by executing a wakfnama.

The learned Subordinate Judge has disbelieved the story of a verbal wakf for the sufficient reason that after the alleged date of its creation, namely, on 9th May 1923, Bibi Sobratan executed a mortgage of some of the wakf property. He ha3 also declined to believe that the wakfnama was executed by Bibi Sobratan; but he has found that what happened on 19th May amounted to an oral wakf.

The learned Advocate for the respondent does not accept this finding in its entirety. His contention was that the execution of the wakfnama was sufficiently proved and he argued that the fact that Sobratan''s seal and thumb-impression were put on the document and that she admitted execution of the document in the presence of Maulavi Badrul Hussain, Pleader, amounted to execution. There seems to me to be insuperable" difficulty in the way of this argument. With regard to the view taken by the learned Subordinate Judge, it may be observed that it is not the case of either side. The plaintiff''s case of a verbal dedication sometime before 19th May 1923 has been definitely disbelieved; and it was not argued on behalf of the respondent that the finding on this point-was wrong, The plaintiff''s case of the execution of the wakfnama on 19th May has also been disbelieved; and it is consequently difficult to ascertain what the terms of the wakf were, because all that is left is the answer of the lady to a question regarding execution; and if this is to be taken as a verbal wakf, contrary to the plaintiff''s own case, then it would be necessary to refer to the document to ascertain its terms and this raises the question, whether the document is admissible in evidence, a question which also arises on the line of argument adopted by the respondent in this appeal. But before dealing with this question, I shall briefly refer to the evidence indicating the circumstances in which this document came into existence.

Exhibit C is a will executed by Bibi Sobratan on 21st December 1910, bequeathing to her nephew Ibrahim two thirds of her property and to her niece, Ibrahim''s sister Bibi Khatun, one third. Subsequently to 1910 Bibi Khatun married; and at the instance of her husband''s relations, Sobratan made a gift of a one third share to Bibi Khatun; but as she did not wish to be out of possession of her property until her death, a fact admitted by Mariam herself, she took a mukarrari lease of this same property from Khatun for her life. The defence to the present suit is (and this defence is amply corroborated by the evidence of the plaintiff''s witness Maulavi Badrul Hussain) that Ibrahim apprehended that on the death of Sobratan. Bibi Khatun might still claim a third of the property that remained; and it was with the object of defeating any such claim that the idea of a wakf of which the plaintiff''s wife should be the mutawalli arose. The evidence shows that everything was done by Ibrahim.

The Mukhtar Muhammad Osman admits that it was under the instructions of Ibrahim that he made the draft and that Ibrahim went to him several times after the draft and that he was taken along with Badrul Hussain to Bibi Sobratan''s house to attest the deed. The evidence of Badrul Hussain also shows that Ibrahim spoke to him about Sub-ratan''s intention to execute a wakf and that he came to him and paid his fees and took him in a carriage to her house along with Osman. It is true that in his cross-examination (though it is difficult to say why the question should have been put in cross-examination) he said that he gathered that it was intention of Sobratan to create a wakf and, as Ibrahim was a man of profligate habits, she proposed to make Bibi Mariam the Mutawalli.

It is doubtful whether this statement is admissible in evidence as it seems to be merely an expression of opinion; and in any case it is inconsistent with the activity of Ibrahim in the matter as well as with what followed. When Badrul Hussain suspected that the deed had not been properly executed, he refused to attest it and advised Ibrahim to change the page containing the stamp and to get the deed properly executed. In fact the stamped paper was returned to the Collector and the value of the stamp was refunded. Then Badrul Hussain had a conversation with Ibrahim''s agent from which he discovered what was troubling Ibrahim, namely, his apprehension about the inheritance, and he advised him that Bibi Khatun was not a legal heir at all. Thereafter nothing more was done in the matter of the wakfnama; and, after the death of Sobratan, when the usual proceedings were taken for registration of names in the Collectorate and in the municipal records by Ibrahim, petitions were filed by Mariam withdrawing her objection which, she said, had been made at the instance of her father, and declaring that Ibrahim was entitled to be registered. Her father still opposed and the Deputy Collector made an enquiry into the matter and has recorded that he verified the statement in the petition by enquiring from Mariam herself and he therefore ordered the registration of Ibrahim''s name. The learned Subordinate Judge has come to the conclusion that Bibi Mariam was not a free agent in this but that is a matter of speculation. All these circumstances therefore are consistent with the defence that there was no real intention on Sobratan''s part to create a wakf but that the whole proceedings were taken with the view of securing Ibrahim in his inheritance.

I now turn to the question of the execution of the wakfnama. So far as the signature is concerned, it must be held, as the learned Subordinate Judge has held, that there was no execution. There were three deeds and the Pleader Badrul Hussain says that within a minute and a half the deeds were brought out duly signed and he there and then expressed his doubt about the signatures and he refused to take the risk of attesting such deeds; and Ibrahim apparently accepted the position, because he did remove the first page. But the respondent relies on the seal and thumb-impression. The only evidence that these were the seal and thumb-impression of the lady is the statement of Mariam; but as she also commits herself to the signature, and on this point has been disbelieved by the Subordinate Judge, it would be unsafe to accept her evidence as proving execution by seal and thumb mark. Moreover, the evidence that the lady understood the terms of the deed is in my opinion insufficient. This evidence is given by Ziaul Huq, a clerk of the mukhtar Osman His direct evidence is that he made the fair copies of the drafts and took them to Sobratan and read them over to her and she admitted them.

The witness does not even say that he explained the deed to the lady. But I am not prepared on this solitary statement to hold that the deed was even read to the lady, because this witness, who was the scribe of the document, has not signed it as scribe nor has he endorse upon it that its contents were read and explained. Further, it is difficult to see how this document can be taken in evidence. It is admittedly incomplete, the first page being missing; it is unattested and unregistered. It is true that a valid wakf can be created without writing; but when the terms of a disposition of property have been reduced to the form of a document, u/s 91, Evidence Act no evidence can be given in proof of the terms of such disposition except the document itself or secondary evidence thereof. But by Section 17, Registration Act an instrument of this kind requires registration and, u/s 49, it cannot affect any immovable property comprised therein unless it has been registered. For all these reasons it cannot be held in this case that there has been any wakf created by deed; and the argument on behalf of the respondent must fail.

This, in my opinion, equally involves the failure of the view taken by the learned Subordinate Judge. Apart from the fact that it was not plaintiff''s case and that the evidence was not directed to prove the creation of a verbal wakf on 19th May, all that we have is the answer "yes" to a question by the pleader, whether, she had executed the deed. The question in itself is unintelligible, because the pleader goes on to say that after the lady had answered "yes," he said that the deed should be signed. But even if the effect of the evidence is a declaration by the lady that she accepted the deed as hers, then it would be necessary to refer to the document in order to ascertain the terms of the wakf; but, as I have pointed out above, this cannot be done. Moreover, there is no suggestion that there was any intention to create a wakf by word of mouth on 19th May and apart from that, there is no evidence of the terms of this dedication.

In Jinjira Khatun v. Mahomed Fakirulla Mea AIR 1922 Cal. 429 it was held following the decision in Leodem Jaun Beebee v. Abdullah [1838] Fulton 345 that a valid wakf is created by declaration of endowment by the owner and delivery of possession is not essential. It was further held following Mulla Veettil Ussain and Others Vs. Subramania Aiyar and Others, that a mere intention to set apart property for charitable purposes is clearly not sufficient to create a valid wakf. In Banubi v. Narsingrao Hanejirao Mane [1907] 31 Bom. 250, it was held that where there has been no actual delivery, a reasonably clear declaration is necessary to create a valid wakf. According to Ameer Ali, in his Mahomedan law, Edn. 4. Vol. 1 at p. 217:

When the intention to make a wakf is apparent, or can be inferred from the 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, or from surrounding circumstances at large, it will constitute a valid and'' binding wakf, though the word wakf might not have been used.

On the findings arrived at above, it seems clear that none of these tests is satisfied in this case. There is no reasonably clear declaration of dedication. The deed is not admissible to supply the defects in the evidence; and the circumstances of the case do not indicate even a clear intention to create a wakf. I would hold, therefore, that the plaintiff has not established her case.

The appeal must be decreed and the decree of the Subordinate Judge set aside and the suit dismissed with costs throughout.

Chatterji, J.

This appeal arises out; of a suit by the plaintiff for a declarations that the property in suit is wakf and for recovery of possession as mutawali of the same. The property in question belonged to one Mt. Sobratan, father''s sister of the defendant Shaikh Ibrahim who is the plaintiff''s husband. The case for the plaintiff is that the lady made a verbal wakf of property in March 1923, and executed a formal deed on 19th May 1923 confirming the said wakf, but that the document could not be registered on account of the defendant''s interference. There is also an allegation that she was put in possession of the property.

The defendants denied the creation of any wakf or the execution of any formal deed by the lady as also the plaintiff''s allegation of possession. According to, him the document was being created in order that his sister Mt. Khatun who had been given one third share of her property by Mt. Sobratan might not get a share by inheritance, but the idea was given up when it was ascertained that she would not get any share by right of succession.

The Sub. Judge found that the plaintiff had failed to prove the creation of the alleged verbal wakf and execution on 19th May 1923, or any delivery of possession of the property to her. He has, however, held that:

What happened on 19th May, amounted to creation of oral wakf in favour of the plaintiff.

and passed a decree in her favour. In appeal it is urged that there must be a precise declaration to show a definite dedication, and what is said to have happened on 19th May cannot amount to the creation of a valid wakf. On behalf of the respondent the finding of the Subordinate Judge as to non-execution is challenged.

There is, however, no dispute in this appeal over the finding that there was no delivery of possession. Their Lordships of the Calcutta High Court have held that delivery of possession is not essential for the creation of a wakf (vide Jinjira Khatun v. Fakirulla AIR 1922 Cal. 429 and the authorities cited therein.) The exposition by Abu Yusuf on this point has been adopted and I think I should follow this authority in preference to the opposite view taken by the Allahabad High Court where preference has been given to the opinion of Imam Mahammad.

There is no controversy that a wakf may be created either verbally or in writing. The law will give effect to a dedication in whatever language it may be expressed or in whatever terms the wish may be formulated. There must, however, be a declaration of endowment. Even if the word "wakf" be not used there must be at least a clear declaration from which the creation of a wakf may be presumed. The use of any express term or phrase is not necessary for the validity of wakf. But a mere intention to set apart the property for a charitable purpose is not sufficient to create a wakf. This view will receive support from the decision in the case of Jinjira Khatun v. Fakirulla AIR 1922 Cal. 429, referred to above and from Banubi v. Narsingh Rao [1907] 31 Bom. 250. In this last mentioned case it has been laid down by Sir Lawrence Jenkins, C.J., and Beaman, J., that a mental act although afterwards sufficiently expressed in conduct, will not, unless clothed in appropriate words, create a wakf. The Mahomedan law requires imperatively an oral declaration of dedication where it is not created by any deed.

I am in full agreement with the learned Subordinate Judge that the oral wakf said to hive been created in March 1923, has not been established. The evidence consists of the uncorroborated testimony of the plaintiff and is falsified by the execution of a mortgage bond by the lady (Mt. Sobratan) on 19th May 1923, in respect of a part of the alleged wakf property. Hid she really made an oral wakf she would not hive hypothecated the property as her own when the plaintiff is said to have been appointed the mutawalli.

I also agree with the Court below that the deed of wakf was not executed by Mt. Sobratan. The plaintiff states that she signed the document and put her seal and thumb mark on it. But the evidence of her witness Badrul Hussain shows that there was no execution; besides the plaintiff''s statement stands uncorroborated by the lady herself. I am not satisfied with the evidence that she signed the decument and put her seal or thumb mark on it.

The crucial question in this casa is whether what happened on 19th May 1923, amounted to the creation of a wakf in favour of the plaintiff. The whole case on this point depends on the evidence of P.W. 3 Maulavi Badrul Hussain who is a vakil of Muzaffarpur Court and relied on by the learned Subordinate Judge. His evidence shows that the defendant took him to the house of Bibi Sobratan to attest a wakf and two deeds of gift, one in favour of the plaintiff and another in favour of the defendant to be executed by her. He states "we asked Ibrahim (defendant) that the document should be signed by the Mt. herself or by some near relation of her if she was unfit to sign, in our presence. Then we would attest the deeds. Ibrahim went inside the purda with the deeds. I enquired of the lady if she had executed the deeds. We heard the voice of an old lady from behind the purda answering "Yes." Then I said that the deeds be signed. Then within a minute and a half, the deeds were brought duly signed. I doubted that the lady could not sign within that time and the signatures were made by Ibrahim himself. I told Ibrahim that his conduct was not fair and that we would not risk jail with him by attesting such a deed. Then we three told him that he should change the stamps and get the deeds properly executed when of the deed of wakf on 19th May we would attest them." His cross-examination shows that Ibrahim was labouring under the idea that his sister Khatun would inherit a portion of Sobratan''s property afterwards. He consulted Mahomedan law and gave the opinion that Khatun was not a legal heir of Sobratan and that there was no necessity -for the document being executed. Nothing further appears to have been done in connexion with the execution of the deeds.

Thus, all that we get is the voice of an old lady saying "Yes" when the vakil asked whether she had executed the deeds. After that answer from behind the purda, the witness said "that the deeds toe signed." Thus the question perhaps was not whether she would execute the deeds but whether she had executed the deeds. The answer "Yea" to an involved question like this when three documents were to have been executed cannot, in my opinion, be construed as a declaration of the creation of the property as wakf.

In the next place, the whole thing was being done by the defendant in order to prevent his sister from succeeding to a part of the lady''s estate. It was he who got the drafts prepared and brought the attesting witnesses. It appears further that there was an abandonment of the idea after the expression of the vakil''s opinion that Khatun would not be her legal heir. In the circumstances, I am not prepared to accept the testimony of P.W. 5, Ziaul Haq, who is the clerk of a mukhtar, that the drafts and the engrossed deeds were taken to Bibi Sobartan and read over to her by him. He ,goe3 to the length of saying that he made over the deed to her. There is no note in the document that he had read and explained the same to the executant He did not even sign his name as a scribe. And I do not think that this respectable Mahomedan lady will appear before this man. The law throws around a pardanashin lady a special cloak of protection; and a deed of hers to be valid must be one really understood by her. Even if it be supposed that the document had been executed by the Mt. when the question was asked by the vakil Maulavi Badrul Hussain it is impossible to hold that she had comprehended the intent and scope of the deed.

Lastly, if it be supposed that she understood what was being done, the evidence does not carry us further than this that she admitted the execution of the deed (of wakf). There is no use of any expression of dedication by her. Thel admission of execution cannot operate to create a wakf. As stated in Bamubi case [1907] 31 Bom. 250 where there was the statement in a will that testator had set apart certain funds for charitable objects, this is no a dequate substitute the oral declaration of dedication to God.

In this particular case the plaintiff''s allegation is that the wakf had been created two months previously and the deed was being executed on that day by way of confirmation. Therefore it was nowhere her case that the wakf was being created that day. The learned Subordinate Judge appears to me to have made out a new case which was never alleged in the pleadings. On a consideration of the entire evidence and the circumstances of the case, the only cnoclusion which is possible is that the lad y did not create any valid wakf binding on the estate.

In the result, the appeal succeeds and the suit is dismissed.