Salah vs Husain and others

Srinivasa Chari, J.—This is a first appeal against the judgment of the learned Judge of the Original Side of the High Court. The appellant is the legal representative of the original defendant. The suit out of which this appeal has arisen was filed by the respondents in respect of two deeds said to have been executed by the father of the present appellant, Salah Bin Ahmed on 17-2-1937 and 9-4-1942, which have been marked Exs. A-6 and A-5 respectively.

Salah Bin Ahmed was the owner of certain properties. It was stated that he executed the deeds referred to above creating a wakf-alul-aulad. By means of this document styled ''wakf-alul-aulad'' the executant nominated himself as the mutawalli of the properties dedicated, so long as he was alive, and he made a direction that after his death his heirs would be the mutawallis. This wakfnama was in favour of his sons, Evaz Bin Sala, Mohd. Bin Sala and Ahmed Bin Sala and also in favour of his grandsons, Omar Bin Sala and Ali Bin Sala.

The plaintiffs, who brought the suit, are the sons of Ali Bin Sala and they alleged that they were entitled to 1/4th of the income from the properties over which the wakf was created. The plaintiffs averred that after the execution of the wakfnama the properties that had been dedicated were in the possession of defendant 1, Salah Bin Ahmed in his capacity as mutawalli but he did not distribute the income from these properties as he should have done.

They also stated that out of the income realised from the properties, in respect of which this wakf had been created, other properties were purchased and, therefore, such properties as were purchased from out of the income of the immoveable properties which were originally dedicated would also form part of the wakf.

They went on to say that about six years prior to the date of the suit, the plaintiffs demanded from defendant an account of the income derived from the properties and defendant neither gave them any account nor their shares in the income; that the defendant was intending to sell away these properties and migrate to Pakistan or Arabastan and that, therefore, the plaintiffs apprehended that they would be deprived of the in come from the properties to which they were entitled.

They prayed on the above facts for an injunction restraining the defendant from transferring or creating any charge over the wakf properties. They also prayed for an account being taken of the income from 17th Farwardhi 1346F., the date of the wakfnama till the date of the suit.

The defendant in his written statement denied that the deeds relied upon by the plaintiffs were deeds of wakf-alul-aulad. He contended that they were mere Wills executed by him which had been revoked.

The learned Judge of the Original Side framed 10 issues. Issues 1, 2 and 3 relate to (a) the maintainability of the suit without the sanction of the Prime Minister of H. E. H. the Nizam, (b) valuation of the suit and (c) whether plaintiffs had any right of action. These issues are not of importance. The findings on these issues were in favour of the plaintiffs and the defendant''s learned counsel did not address any arguments on these points.

The important issues which really go to the root of the matter and with regard to which arguments were advanced both in the lower Court as well as before us are issues 4 to 8 which are reproduced below.

Issue 4 : "Are not the deeds dated 16th Farwardhi 1346F. and 5th Khurdad, 1351F. wakfnamas but Wills and are, therefore, unenforceable during the lifetime of the defendant?"

Issue 5: "Whether defendant No, 1 can revoke the deeds of the 16th Farwardhi, 1346F. and 5th Khurdad 1351F, and whether these deeds have been cancelled by reason of revocation?"

Issue 6: "Whether having regard to the contents of the deeds the plaintiffs have any right to ask for an account and whether they are entitled to such an account during the lifetime of defendant No. 1?"

Issue 7; "Whether the houses mentioned in lists B and C were purchased from out of the income of the endowed property and as such could be regarded as part of the endowed property?"

Issue 8: "Whether the document dated 5th Khurdad 1351F. was executed when the defendant was seriously ill and had despaired of life?"

Plaintiffs examined four witnesses including one of themselves, Husain Bin Ali. The defendant examined five witnesses. On this evidence on record the learned Judge of the Original Side upheld the plaintiffs'' contentions and came to the conclusion that the deeds in suit were valid and operated to create a wakf-alul-aulad.

He, therefore, passed a preliminary decree for accounts and also a decree for injunction restraining the defendant from alienating the dedicated properties. It is against this judgment that the defendant has filed an appeal. During the pendency of the appeal before this Court, the original defendant-appellant died and his son, Ahmed has been brought on record as his legal representative.

The learned advocate for the appellant argued initially that the suit documents were not documents of wakf-alul-aulad but were testamentary documents and being so, inasmuch as they have been revoked, the plaintiffs could not have any right of action as against the defendant. Alternatively it was contended that even if they be regarded as wakf-alul-aulad, the deeds were invalid in law (a) because there was no offer and acceptance which is a sine qua non for the validity of a wakf and (b) that there was no ultimate gift to the poor which is an essential feature of a wakf.

Reliance was placed by the learned advocate for the appellant upon the two well known cases of the Privy Council in this regard, -- ''Abdul Gafur v. Nizamuddin'', 19 Ind App 170 (PC) (A) and -- ''Abdul Fata Mahomed Ishak v. Russomoy Dhur'', 22 Ind App 76 (PC) (B), in support of his argument that these deeds partook of the nature of testamentary disposition.

The learned advocate pointed out to us some of the prominent characteristics of these deeds and also drew our attention to the conduct of the wakif and argued that the intention of the donor was not to create a Wakf. He emphasized that the wakif or the endower had retained with him the power of disposal of the income and has expressly stated that there would be no distribution of the income as long as he was alive.

He also stated that there would be no right to demand an account as long as he was alive and farther that no one else except the wakif''s descendants would get any benefit out of the property. In the second note appended to this deed he further laid down that the beneficiaries should abide by the will that he might make.

In addition to the intrinsic, evidence in the documents, the learned advocate drew our attention to the conduct of the wakif himself alter the execution of the deeds and urged that the subsequent conduct of the wakif was only consistent with the hypothesis that the documents were mere wills which were intended to come info operation alter his death. In this connection our attention was invited to the following circumstances :

(a) There was no mutation of names in respect of any of the properties which were the subject matter of the wakf;

(b) he did not get the deeds registered as endowment in the Ecclesiastical Department as required by Ecclesiastical Regulation;

(c) the receipts for rents received from these houses were passed in his name as owner and not as mutawalli; and

(d) no accounts were maintained by him as he would have done if he was a mutawalli.

The contentions that require consideration are as to whether this is a completed wakf and as to whether by reason of the fact that there was no express mention of the gift to the poor the wakf should be declared invalid. It was urged by the learned advocate for the respondent that the plea about the invalidity of the wakf on the ground that there was no ultimate gift to the poor was not raised in the written statement.

No doubt it is true that the plea as such has not been raised nor has it been the subject matter of any of the issues. But we find from the Judgment of the lower Court that this point was raised at the time of the arguments and the learned Judge discussed the matter elaborately and gave his finding thereon, vide pp. 200 to 203 of the paper book.

Therefore, inasmuch as the contention is of a purely legal character and it was urged at the time of the arguments and dealt with by the learned Judge, the fact that it was not raised in the ''written statement would not matter.

Muhammedan Law recognizes what is known as Wakf-alul-aulad, that is to say, a dedication by means of which the property is tied up so that the usufruct might be utilised for the benefit of the members of the family. The essential feature of a wakf being a dedication of property for the benefit of the poor the dedication should be such which eventually goes for the benefit of the poor.

It would appear from a reading of the wakfnamas printed at pp. 193 to 198 that in the directions in the wakfnamas there is no indication that after the extinction of the members of the family the benefit thereof would go to the poor. The point arises whether under such circumstances the Court would be justified in construing the deed as a wakf for the benefit of the poor from the fact that the executant was purporting to make a wakf-alul-aulad and the further fact that he contemplated the subsequent vesting of the properties in mutawallis.

On this point a difference of opinion exists between the disciples of Abu Hanif viz., Imam Mohammed and Abu Yusuf. While Imam Mohd. is of the opinion that the non-mention of the dedication to the poor would make the wakf invalid and that it is not open to us to construe it as a deed intended ultimately for the poor, the view of Abu Yusuf is that a wakf is primarily intended for the poor and if it happens that the wakif or the dedicator intended that initially the usufruct of the property dedicated should go for the benefit of the family it should be taken to mean necessarily that after the extinction of the family the usufruct could be utilised by the poor.

A good deal of case law has accumulated on this point in India but the Privy Council has consistently declined to follow the view of Abu Yusuf and has laid down that there is no warrant for holding that in the absence of an express provision in the deed that property is to be used for the benefit of the poor the transfer cannot be construed as a wakf-alul-aulad.

They say that inasmuch as the object of a wakf is charity or the ultimate benefit of the poor, there ought to be a specific dedication in that behalf and their Lordships have also laid down that the benefit to charity or the poor should not merely be illusory as would be the case if the wakif makes a specific provision for the members of his family and leaves an infinitesimal portion of the property for the poor.

The leading case on this point is the case of -- ''Sheik Mahomed Ahsanullah Chowdhury v. Amarchand Kundu'', 17 Ind App 28 (PC) (C). Lord Hobhouse delivering the judgment of the Board in that case observed:

They (their Lordships), have not been referred to, nor can they find, any authority showing that according to Mohommedan Law a gift is good as a wakf unless there is a substantial dedication of the property to charitable uses at some period of time or the other.

The same observation was made by Lord Watson in the case of 19 Ind App 170 (PC) (A). The matter again came up for consideration before the Privy Council in the case of 22 Ind App 76 (PC) (B), and again Lord Hobhouse, who delivered the judgment of the Board observed :

Clearly the Mohommedan Law ought to govern a purely Mohommedan disposition of property. Their Lordships have endeavoured to the best of their ability to ascertain and apply the Mohommedan Law as known and administered in India, but they cannot find that it is in accordance with the absolute application of abstract precepts from the mouth of the Prophet............ But it would be doing wrong to the great law-giver to suppose that he is thereby commending gifts for which the donor exercises no self-denial; in which he takes back with one hand what he appears to put away with the other.

The matter is very strongly and succinctly put by him when his Lordship observes :

If a man were to settle a crore of rupees and provide 10 for the poor that would at once be recognized as illusory. It is equally illusory to make a provision for the poor under which they are not entitled to receive a rupee till after the total extinction of a family; possibly not for hundreds of years.

These observations clearly indicate that a gift to the poor ought to be a bona fide gift and where there is primarily a substantial and wholesale gift to the members of the family with a nominal or illusory dedication to the poor the deed can scarcely be a wakf.

While conceding that in the wakfnamas under dispute a substantial dedication had been made to the family it was urged that since a dedication to charity or a benefit of the poor is an essential ingredient of a wakf-alul-aulad it must be deemed to be necessarily implied in every deed which an executant makes by way of such wakf that the eventual dedication is to the poor and for this the learned counsel placed reliance upon the view taken by Abu Yusuf already referred to by us.

There could be no occasion for any controversy on this question so far as the Indian Union was concerned in view of the fact that under the Musulaman Wakf Validating Act, Act VI of 1913 it was declared lawful to create a wakf for the maintenance and support wholly or partially of a wakif''s family or children and also for his own maintenance and support provided that the ultimate benefit is, in such cases, expressly or ''impliedly reserved'' for the poor or for any other purpose recognized by the Musulman Law as a religious, pious or charitable purpose of a prominent character.

The Act declares that a wakf wherein there is no express provision for the poor would nevertheless be valid as such a provision should be impliedly assumed. This enactment was followed by another enactment, the Musulman Wakf Validating Act, Act 32 of 1930 the effect of which was to give the 1st enactment a retrospective effect with the result that wakfs created before the 7th March, 1913 also were brought within the operation of the Act of 1913.

It would appear, however, that neither of these Acts has been applied to the Hyderabad State by virtue of the Part B States Laws Act, Act III of 1951. The result is that no validity could be given to the wakf in question by reason of the statutory provision in the above enactments.

It was urged that under the circumstances we were obliged to apply the original principles of Mohommedan Law and it was further argued that it was incumbent upon us to apply the original principles of Mohommedan Law as such, inasmuch as H. E. II. the Nizam in the Charter granted to the High Court directed that in cases where the parties were Muslims the case would be governed by Sharai-shariff and where the parties were Hindus the case would be governed by the Shastras.

It was contended that if the Muhammedan Law as such governed the case, then inasmuch as the parties belonged to the Shafai School the authority of Abu Yusuf was entitled to preference over that of Abu Hanifa and a fatwa was sought to be produced before us in support of the proposition that Abu Yusuf''s view was entitled to preference.

Quite curiously the learned counsel for the appellant wanted to file another fatwa of the same authority which gave a contrary opinion with the result that these fatwas could be of no assistance to us. We accordingly refused to take them on the record.

The learned advocate for the respondent also relied upon a decision of the Madras High Court reported in - Kotambiyakath Pathu Kutti Umma and Others Vs. Nedungadi Bank Ltd. and Others, , to the effect that where there was a difference of opinion between Abu Hanifa and Imam Mohd. that opinion is to be accepted which coincides with the opinion of Abu Yusuf. When the two disciples differ from their master or from each other the authority of Abu Yusuf is generally preferred.

It is not clear in the case now before us as to whether the opinion of Abu Hanifa the master was different from that of Abu Yusuf. But it would be useful to point out in this regard that in a Full Bench decision of the Calcutta High Court, -- ''Bikani Mia v. Shuklal Poddar'', 20 Cal 116 (E), while the dissenting Judge, Amir Ali, J. based his opinion purely on a general preference for Abu Yusuf, the majority of the Judges took their stand on a series of British decisions which were, according to them, in agreement with Muhammedan Law on the particular point in question and refused to go behind those decisions or to be drawn into a discussion about the relative weight of the Indian authorities.

It would follow that unless there are compelling reasons to follow the view held by Abu Yusuf, we would not be obliged to adopt his opinion especially where the whole dedication is for the family and not only is there no reservation for the poor on the face of the deed, but there is an express provision to the effect that no one else but the descendants of the wakif should obtain benefit from the usufruct of the property.

Even in cases where there was an express provision for the poor but it happened to be an infinitesimal portion as compared with the provision made for the members of the family, the Privy Council was of the opinion that such a wakf would not be declared valid. In the case before us it is admitted there is no provision at all for the poor. In our judgment, therefore, the wakfnamas should be declared to be invalid.

The learned advocate for the respondent invited our attention to a decision of this High Court reported in ''34 D.L.R.'' which went up in appeal to the Hyderabad Judicial Committee and was reported in 40 Deccan LR 201 (F). With regard to this authority we would say that that was not a case of wakf-alul-aulad nor did the question relating to the validity of the wakf as is the case before us arise there.

The sole question in that case was whether the Ecclesiastical Dept. was a necessary party and the majority view was that the Department was a necessary party to the suit. The decision cannot, in our opinion, help the respondent.

The other question that was canvassed before us was that there was no completion of the wakf. It was urged that the evidence showed that the wakif never intended to create a wakf and the circumstances of the case and the conduct of the wakif conclusively indicate that there was no intention to create a wakf. The circumstances, which according to the appellant lead to this inference have been already mentioned in the course of this judgment.

It is contended that where from the conduct of the wakif it is clear that he did not divest himself of the ownership of the property, the wakf cannot be regarded as having been completed. In this connection we might refer to the decision of the Privy Council in the case of -- AIR 1930 255 (Privy Council) where their Lordships observed:

On a careful consideration of the whole evidence their Lordships have come to the conclusion that defendant No. 2 executed the deed of wakf but without any intention of divesting himself of his ownership of the property........

In the case before us there was no mutation of names, there was no registration of the wakf in the Ecclesiastical Department as required by law, no distribution of the income as long as the wakif was alive and though the wakif purported to call himself thereafter as a mutawalli, he never maintained any accounts relating to the wakf properties. These, in our opinion, conclusively go to show that there was no intention on the part of the executant to create a wakf.

We hold that having regard to the terms of the two deeds there was no completed wakf, and that even if the documents be regarded as a completed wakf, the wakf is invalid for the reason that it lacks the essential ingredient of a wakf, viz., a substantial bounty for charity or for the poor. The result is that the appeal is allowed; the judgment of the original side of the High Court set aside and the plaintiffs'' suit dismissed with costs.