IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR D. B. CIVIL SPECIAL APPEAL NO. 13/1989 The Aligarh Muslim University V/s Syed Mohammad Sayeed Chishty & Ors. Date of Judgment: 9th May 2007 Hon’ble Mr. Justice R. M. Lodha Hon’ble Mr. Justice R. S. Chauhan Mr. A. K. Bhandari, Sr. Advocate with Mr. Rizwan Ahmed for the Appellant. Mr. A. K. Sharma for the Respondent Nos. 1 and 2 Mr. M. M. Ranjan for the Respondent No. 3. (Per R. S. Chauhan J): The dedication of a property to the Almighty God—the creation of a wakf—has triggered off legal disputes amongst mortals and Institution. The appellant, the Aligarh Muslim University, has challenged the Judgment dated 7-4-1988 passed by a learned Single Judge of this court, whereby the learned Single Judge had quashed and set aside the Judgment and decree dated 8-2-1978 passed by the Additional District Judge, Ajmer, wherein the learned trial court had decreed the suit in favour of the appellant. This case has a convoluted history: one Hakim Nizamuddin (henceforth to be referred to as ‘Hakim Sahab’, for short), an experienced physician and a devout Muslim, owned a three-storied building at Gali Langar Khana, opposite the Dargah Sharif at Ajmer. The building included not only shops, but also three libraries, which housed costly books and a “dawa khana” (clinic) of the Hakim Sahab. Being a religious man, on 6-7-1942, Hakim Sahib executed a “wakf alal-aulad” (family wakf) (Ex. 4) with regard to the three-storied house (henceforth to be referred to as ‘the suit property’, for short). For the sake of clarity, this Wakfnama shall be referred to as ‘the 1942 Wakf’. According to the wakif (the creator of the wakf)--Hakim Sahab, the said wakf was to be governed by the Hanafi School of Muslim Law. Hakim Sahab was to be the first Mutawalli (Manager or superintendent of the property) and after him, his eldest son, Hakim Nasiruddin, was to be the next Mutawalli. After his son Hakim Nasiruddin, the Mutawalli would be chosen by lots from the families of Hakim Sahab’s male issues. Thus, the succession of Mutawalli was fixed. Hakim Sahab did not retain any power to change the said line of succession of Mutawallis. The usufruct of the suit property was to be used by Hakim Sahab during his lifetime. The method of spending the profit from the clinic was also spelt out. But we shall deal with this aspect later in the judgment at the appropriate place. The 1942 Wakf was not only registered, but was also published in the Official Gazette dated 23-9-1965 (Ex. 3). However, the partition of the country in 1947 changed the scenario. With the partition, Hakim Sahab’s children—three sons, including the eldest son, Hakim Nasiruddin, and daughters—migrated to Pakistan. Since the sons migrated to Pakistan, since the succession of Mutawalli as contained in the 1942 wakf could not be implemented, on 30-6-1952, Hakim Sahab created a trust deed (Ex. 5) wherein he changed the succession of Mutawalli: Hakim Sahab would continue to act as a Mutawalli during his lifetime, but after him, Smt. Zohra Begum, the great-granddaughter of his sister, Mst. Kulsum Begum, was to succeed as the next Mutawalli. But after sixteen years, Hakim Sahab again changed his mind. On 15-7-1966, he executed a will (Ex. 14) in favor of the appellant. According to the said will, the entire suit property was to go to the appellant after Hakim Sahab’s death. The income from the property was to “be spent in giving the Scholarship to deserving student of Tibiya College in the Muslim University.” However, since the Islamic Law permits only 1/3rd of the property to be transferred as a gift through a will, the appellant could see the legal difficulties in the said will. Therefore, they contacted Hakim Sahab and sent their employee, Mohammad Ahsan (P. W. 8) and their lawyer, Haji Hassan Abedi (P.W. 10) to convince Hakim Sahab to change the Will and to create another document in favor of the appellant. Therefore, on 28-9- 1966, Hakim Sahab created another wakf in favor of the appellant. For the sake of clarity this wakfnama shall be referred to as ‘the 1966 wakf’. This wakf was intervivos. During his lifetime, Hakim Sahab was to be the Mutawalli and after him, the appellant. The profit earned from the clinic was to pay for the education of “the deserving and the needy Muslim students of the Tibbia College in the Muslim University Aligarh”. However, two years later, on 14-4-1968 Hakim Sahab created yet another will (Ex. 15) in favor of one Gaffar Khan (respondent No. 10 before us) with regard to the suit property. According to the said will, Hakim Sahab revoked the 1966 wakf and made the will in favor of Gaffar Khan. But, just after two months, on 5-6-1968, Hakim Sahab cancelled his earlier will and the 1966 Wakf and executed yet another will (Ex. A/9) in favor of Respondent No. 1. Respondent No. 2 was appointed as the executor of the will. On the same day, i.e. 5-6-1968, Hakim Sahab also executed a General Power of Attorney (Ex. D 10/1) in favor of the respondent No. 1. Just four days later, Hakim Sahab migrated to Pakistan and died there on 12-12- 1968. With his death, the legal disputes erupted. The appellant filed a civil suit, registered as Civil Suit No. 77/ 1970 (later on renumbered as 9/1971), for possession, accounts, recovery of rent, for pendentilite cost and damages for use and occupation of the suit property. For sake of clarity, the respondents shall be referred to as referred to in the civil suit filed by the appellants. According to appellant, in accordance with the 1966 wakf, after the death of Hakim Sahab, the appellant had become the Mutawalli of the suit property. Therefore, they had a right to manage and supervise the suit property. They also had to spend the income of the property for the deserving and needy Muslim students of Tibbia College as directed by the wakif, the Hakim Sahab. Therefore, the appellant prayed for decree of possession of the suit property, decree of arrears of rent against respondent Nos. 3 to 7, damages against respondent Nos. 1 and 2, decree of redemption on account of the clinic being run by the respondent Nos. 1 and 2 and lastly, a decree for pendentilite and future damages. The respondent Nos. 1 and 2 filed their written statement and claimed that the appellant had gotten the 1966 wakf made from the Hakim Sahab by misrepresenting and by using undue influence over him. According to them, Hakim Sahab never wanted to create a wakf of the suit property in favor of the appellant. He only wanted to will the property the property in favor of the university. However, by drafting the 1966 wakfnama in English, by creating an impression upon him that only a will was being drafted, the appellant cleverly created a wakf in their own favor. The respondent Nos. 1 and 2 further claimed that Hakim Sahab was not mentally and physically fit to understand the tenor of the document. Moreover, when the 1966 wakf was created, Hakim Sahab did not have access to anyone except the persons who came from the Aligarh Muslim University. Thus, they exercised undue influence over him. Hence, as the wakfnama was procured by misrepresentation and under undue influence, the 1966 wakf is void. The respondent Nos. 1 and 2 further claimed that Hakim Sahab had repudiated the said 1966 wakf by sending a notice on 27-8-1968 (Ex. A/1) to the appellant. Moreover, afterwards, Hakim Sahab had executed a will in favor of the Respondent Nos. 1. Therefore, the respondent Nos. 1 had the right to occupy the suit property and to realize the rent from the other tenants. The other respondents, namely respondent Nos. 3 to 10 have supported the case of respondent Nos. 1 and 2. Therefore, their stand before the learned trial court is not being mentioned here. Meanwhile, Smt Zohra Begum also filed a civil suit, registered as Civil Suit No. 79/ 1970 (later on renumbered as Civil Suit No. 10/71), for declaration, possession, accounts, recovery of rent and damages for use and occupation of suit property against the Respondent Nos. 1 and against the appellant. According to her, the 1942 wakf was a valid wakf. Subsequently, Hakim Sahab had created a trust deed in her favor on 30-6-1952 (Ex. 5, in her suit). According to the said deed, after his death, she was to act as the Mutawalli. Hence, she had a right to have herself declared as the Mutawalli, to supervise and manage the suit property and to recover the possession, the rent and account of rent and the cost of damage caused to the suit property by the respondent Nos. 1 and the appellant. In her suit, Smt. Zohra Begum had examined herself and three other witnesses. However, vide order dated 3- 10-1972, the two suits were consolidated and the suit filed by the appellant was made the leading suit. After consolidating the civil suits, the learned trial court had framed thirteen issues. In order to support their case, the appellant had examined eleven witnesses and had produced a number of documents. In order to buttress their case, the respondent Nos. 1 and 2 had examined eight witnesses. After going through the oral and documentary evidence, including the oral and documentary evidence produced in the civil suit filed by Smt. Zohra Begum, through a common Judgment, Judgment dated 8-2-1978, the learned trial court, decreed the suit in favor of the appellant, but dismissed the suit filed by Smt. Zohra Begum. Since the respondent Nos. 1 and 2 were aggrieved by the said judgment, they filed a Civil First Appeal before this court. Although Smt. Zohra Begum did not file an appeal against the judgment dated 8-2-978, she did file her cross-objections. Vide judgment dated 7-4-1988, the learned Single Judge quashed and set aside the judgment dated 8-2-1978 passed by the learned trial court, but dismissed the cross-objections filed by Smt. Zohra Begum. Hence, this appeal and the cross-objection before this court. Mr. A. K. Bhandari, Sr. Advocate and the learned counsel for the appellant, has raised a plethora of contentions before us. Firstly, he has attacked the validity of the 1942 wakf. According to him, the said wakf is illusionary and suffers from uncertainty and vagueness. It is illusionary as a negligent amount of the profit earned from the clinic is to be spent on charity. The substantial amount, on the other hand, is to be utilized by the wakif himself during his lifetime and by his male descendents, generation after generation. It is uncertain, as the wakf deals only with profit earned from the clinic. But, it is conspicuously silent about the earning from the other parts of the suit property, i. e. from the shops and from the rent received from the tenants of the building. It is also vague, as it has not specified the purpose for which the money is to be used. It is has left the utilization of the money up to the discretion of the Mutawalli (Trustee) of the Dargah Sarrif of Ajmer. It has used the term, “Madd-e-khair” which means ‘for good works’. However, the earnings of a wakf are to be used only for ‘religious, pious and charitable work’. According to the learned counsel, there is a distinction between ‘good works’ and ‘religious, pious and charitable work’. A good work need not necessarily be pious or charitable or religious work. Hence, the 1942 wakf suffers from the vice of being illusionary, uncertain and vague. Secondly, the trust deed dated 30-5-1952 (Ex. 5), created in favor of Zohra Begum, is equally invalid. For, in the 1942 wakf Hakim Sahab had fixed the line of succession of Mutawalli. Accordingly, after his death, his eldest son was to be the next Mutawalli; after him, the Mutawalli was to be chosen, by lots, by the families of male descendents of Hakim Sahab. In case the male line was to become extinct, the Mutawalliship would go to the female line. In case they too become extinct, the Mutawalliship would pass to Mutawalli (Trustee) of Dargah Khwaja Saheb, at Ajmer. Therefore, Hakim Sahab did not retain the power to subsequently change the Mutawalli. Thus, he could not have changed the line of Mutawalli through the trust deed dated 30-5-1952 in favor of Zohra Begum. Moreover, since Smt. Zohra Begum was the great-granddaughter of Hakim Sahab’s sister, since she was not a descendent from his sons, she could not be appointed as the Mutawalli. Further, Smt. Zohra Begum had challenged the judgment of the learned Single Judge by filing of a special appeal, registered as D. B. Special Appeal No. 58/93. However, vide judgment dated 25-3- 1993, this court had dismissed her special appeal. Therefore, she cannot file her cross-objections in the present appeal. For, her cross-objections are hit by res judicata. Lastly, she has filed her cross-objection in the present appeal after an inordinate delay of eleven years, whereas according to Order 41, Rule 22 of the Code of Civil Procedure (‘the Code’, for short), she should have filed the cross-objection within one month of the receipt of the notice. She has not filed any application for condoning the delay. Hence, she cannot be heard, as she has no locus standi to contest the present appeal. Thirdly, the learned Single Judge has erroneously concluded that 1966 wakf was the product of misrepresentation and undue influence. There is no evidence to substantiate this conclusion. The series of events clearly prove that Hakim Sahab wanted to create a wakf in favor of the appellants. Initially, without any fear or inducement, Hakim Sahab had executed a will in favor of the appellant. When the legal infirmities were pointed out to Hakim Sahab and when the appellant sought an appointment with him, he gave the appointment. Consequently, Mohammad Ahsan (P. W. 8) and Haji Hasan Abedi (P. W. 10), the appellant’s lawyer, arrived at Hakim Sahab’s house in Ajmer. They discussed the matter with him. According to P. W. 3, Mohammad Islamullah, Hakim Sahab was mentally fit when the 1966 wakf was created. According to him, although the wakfnama was drafted in English, though Hakim Sahab was unfamiliar with English, yet the wakfnama was translated in Urdu and read over to him. Hakim Sahab had sent Mehboob Khan (D. W. 2) to bring the necessary stamp papers for the drafting of the wakfnama and had sent him to fetch the Sub-Registrar so the said wakf could be registered. Hakim Sahab had signed the wakfnama in front of the witnesses. The said wakfnama was registered. Hence, there is not an iota of evidence to either suggest misrepresentation or undue influence. Hence, the 1966 wakf is a valid one. Fourthly, the learned Single Judge has applied the doctrine of legal infirmity. However, in the present case, the said doctrine is inapplicable. Hence, the basis of the impugned judgment is misplaced. Lastly, since the 1966 wakf is valid, thereafter Hakim Sahib as the first Mutawalli did not have the right to create a will about the suit property. For, after a wakf is created, the wakif looses his ownership and merely has the right to supervise or to manage the suit property as a Mutawalli. Hence, Hakim Sahab could not have willed the suit property in favor of the respondent Nos. 1. Thus, the will dated 5-6-1968 is invalid; the respondent No. 1 cannot derive any right or interest on the basis of an illegal will. On the other hand, Mr. A. K. Sharma, the learned counsel for the respondent Nos. 1 and 2, has supported the impugned judgment. Firstly, Hakim Sahab never wished to part with the suit property during his lifetime. It is precisely for this reason that he had executed a will, dated 15-7-1966 (Ex. 14), in favor of the appellant. It was not the Hakim Sahab who felt the need for changing the will. The appellant felt the said need, as under the will the appellant would be entitled to only 1/3rd share in the suit property. Therefore, the appellant sought an appointment with the Hakim Sahab. The appellant sent one of their employees and their lawyer to get the will changed into a wakf in favor of the appellant. Secondly, according to D. W. 2, Mehboob Khan, Hakim Sahab’s employee, when the people from Aligarh came, Hakim Sahab was not well and he simply signed the document. Also according to him, the persons from Aligarh had brought a draft of the wakfnama with them. Thirdly, no one close to Hakim Sahab was present when he signed the wakfnama. But for the testimony of the appellant’s witnesses, no one testifies that the wakfnama was read over to the Hakim Sahab before he signed it. Thus, the undue influence and misrepresentation is writ large. Fourthly, in his statement given on 29-3-1967 (Ex. A/10), before the Small Cause Court, Hakim Sahab repudiated the suggestion of having created any wakf in his property in his lifetime. According to him, he had created a will in favor of the appellant. Thus, he was under a bona fide belief that the document he had signed on 28-9-1966 (Ex. 4) was a will and not a wakfnama. Fifthly, on 5-6-1968 he had sent a notice (Ex. A/14) to the appellant repudiating the will dated 15-7-1966 (Ex. 14) and the wakf dated 28-9-1966 (Ex. 4) created in favor of the appellant. Sixthly, in the will in favor of the respondent No. 1, dated 5-6-68 (Ex. D. 9), Hakim Sahab has unequivocally stated that the appellant and his employee and lawyer had misguided him into entering into the wakf in favor of the appellant. These facts, according to the learned counsel, establish that the Hakim Sahab had no intention to part with the suit property by creating a wakf in favor of the appellant. The learned counsel has also argued with regard to the 1942 wakf. According to the learned counsel, the 1942 wakf is valid. Since a valid wakf was created in 1942, Hakim Sahab could not have created a wakf in 1966 with regard to the same property. Therefore, also on this account, the 1966 wakf was illegal. Mr. M. M. Ranjan, the learned counsel for Smt. Zohara Begum, has also raised a number of contentions before us: Firstly, even if Smt. Zohra Begum had not filed an appeal against the judgment dated 8-2-1978, under Order 41, Rule 22 of the Code, she was competent to file her cross-objections. However, vide judgment dated 7-4-1988, her cross-objections were rejected without hearing her. Subsequently, she had filed a special appeal, registered as D. B. Special Appeal No. 58/93; however, this court had dismissed the same vide judgment dated 25-8-1993 on the ground of limitation. Since her special appeal was dismissed on ground of limitation, the judgment dated 25-8-1993 cannot act as res judicata. In the present appeal, she has filed her cross-objections and under Order 41, Rule 22 of the Code. Moreover, she is competent to support the impugned judgment. Hence, she has a locus standi before this court. Secondly, supporting the 1942 wakf, he has argued that the said wakf does not suffer from being illusionary, uncertain, or vague. According to him, the maintenance of one’s family is itself a charitable act according to Islamic jurist. Since a substantial part of the money would have been spent on the family, the charitable purpose is writ large in the 1942 wakf. Hence, it is not illusionary. Similarly, the division of the money has been prescribed in the wakfnama. Thus, there is nothing uncertain or vague about it. Thirdly, the learned trial court had relied upon series of cases, which are contrary to the Muslim law and the principles established by the Islamic Jurists. Without appreciating the requirements of a valid wakf, without noticing the principles of Hanafi School of law, the learned trial court has erroneously held the 1942 wakf to be illusionary, uncertain and vague in nature. Even the learned Single Judge had overlooked this position. Fourthly, the 1942 wakf was registered and notified on 23-9-1965 (Ex. 3). According to Section 6 (4) of the Wakf Act, 1954 (‘the Act of 1954’, for short), once the wakf is registered, the wakf is said to be final and conclusive. Since the 1942 wakf was registered, a presumption can be drawn that the wakf was valid in accordance with the requirement of Islamic laws. We have heard the learned counsels for the parties, have examined the record produced before us and have perused the impugned judgment. Before dealing with the issues raised in this case with regard to the validity of 1942 wakf and the 1966 wakf, let us first deal with the issue of maintenance of cross-objection filed by Smt. Zohra Begum. Order 41, Rule 22 of the Code is as under: (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. [Explanation: A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent] 2) Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. 3) Unless the respondent files with the objection a written acknowledgment from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent. 4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the to her parties as the Court thinks fit. 5) The provisions relating to pauper appeals shall, so far as they can be made applicable, apply to an objection under this rule. An analysis of the provision reveals that it consists of two parts: the first part empowers any respondent, who may not have appealed from any part of the decree, to support the decree and to plead that a finding of the court below which is against him/ her, ought to be in his/her favor. Thus, the first part authorizes the respondent only to support the decree. It does not authorize him to challenge the decree. If he wants to challenge the decree, he has to take recourse to the second part. The second part permits him to take any cross-objection to the decree, which he could have taken by way of appeal. [Ref. to Choudhary Sahu (Dead) by Lrs. V State of Bihar (AIR 1982 SC 98)]. Thus, Order 41, Rule 22 provides two alternatives to the respondent. The first is “to support” the decree, the second is