Case: Garib Das &amp; Others Vs. Munshi Abdul Hamid &amp; Others

the law seems to be clear that a wakf inter vivos is completed by a mere declaration of endowment by the owner. According to Mullas Principles of Mahomedan Law, 16th Edition, page 178, Article 186, this view had been adopted by the High Courts of Calcutta, Rangoon, Patna, Lahore, Madras Bombay, Oudh Chief Court and recently by the Allahabad High Court and the Nagpur High Court. Further, the founder of a wakf may constitute himself the first mutawalli and when the founder and the mutwalli are the same person, no transfer of physical possession is necessary. Nor is it necessary that the property should be transferred from the name of the donor as owner into his name as mutawalli. An apparent transaction must be presumed to be real and the onus of proving the contrary is on the person alleging that the wakf was not intended to be acted upon.9. It is also settled law that the settler and those claiming under him are not precluded from showing that no wakf had been created and that the deed was not intended to operate as a wakf but was illusory and fictitious. This is a question of intention evidenced by facts and circumstances showing that it was not to be acted upon. For the purpose of such enquiry subsequent conduct, if it is merely a continuation of conduct at the time of execution, is irrelevant.10. On the question of intention, we see no reason to take a view different from that adopted by the High Court, specially as the contesting respondents had failed to discharge the onus which lay heavily on them to prove that Tasaduk Hussain did not intend to create a wakf in respect of the disputed property or that it was not acted upon.11. Counsel for the appellant relied on the Mussalman Wakf Validating Act, 1923 and specially to Sections 3 and 10 thereof and contended that the non-furnishing of particulars relating to the wakf in terms of Section 3 when it was alleged that account books were written in respect of the income from the mosque went to show that no wakf was really created inasmuch as failure to comply with Section 3 attracted the penalties prescribed in Section 10.This contention had been rejected by the High Court which held that no account books were ever written.Reference may also be made in this connection to a statement of law in Mullas treatise of Mahomedan Law, 12th Edition, Page 175 under Article 171A that the Act of 1923 did not apply to any wakf under which any benefit was, for the time being, claimable by the wakif or any of his family descendants.12. On the third point our attention was drawn to the deed of wakf which merely mentions that Tasaduk Hussain had settled the whole and entire property to "the mosque and Madarsa at Mohalla Nathnagar" and the surplus of the usufruct thereof was to be spent over the same. If the document had stood by itself and if there were more than one mosque in Nathnagar there might be scope for contention that the donor had no particular mosque in mind when he created the wafk. But the doubt, if any, is resolved by the High Court relying on the document dated 10th December 1949 executed by Tasaduk Hussain showing that in the deed of 1914 the mosque referred to was "Barhi Masjid and Madarsa".As the donor was the best person to know which mosque and Madarsa he had in mind and he had identified the same by the document of 1949 we see no reason to take a view different from that of the High Court or hold the deed void for uncertainty.13. The fourth point has no substance inasmuch as Article 142 of the Limitation Act was not applicable to the facts of the case. The suit was filed in 1955 within six years after the death of Tasaduk Hussain who died only a few months after the execution of the documents relied on by the appellants.14. We however find that we must remand the matter for determination of the first point raised by the counsel for the appellants. The issues settled by the Subordinate Judge on 30th August, 1957 at page 17 of the printed record include issue 10, namely, Are the plaintiffs entitled to get a decree for recovery of possession of the properties in the suit?" and issue 12 reading "Are the plaintiffs entitled to get a decree for mesne profits and if so, to what extent?" Our attention was drawn to the judgment of the Subordinate Judge at page 81 of the printed record which shows that the learned Judge only considered nine issues which do not include the above issues 10 and 12. But it may be that in view of issue 8 as finally recast by the learned Judge in delivering his judgment and reading "Are the plaintiffs entitled to any decree as prayed for"? original issues 10 and 12 became superfluous. Besides, the learned Judge did not have to give any decision on issue 8 as he found that the wakf was not valid. In the judgment of the High Court there is no reference to all this and in the concluding paragraph it was recorded that in view of the finding that the sale deed in favour of the contesting respondents did not confer any title on them they were trespassers after 27th December, 1949 though they were tenants of some portions before that date.15. Reference was made to Sections 11 and 18 of the Bihar Buildings (Lease, Rent and Eviction) Control Ac, 1947 under which a decree for eviction could only be passed at the relevant time by the Controller appointed under the Act. As the High Court judgment is not explicit on this point, we think it only proper to remand the matter to the High Court for determination of issue 8 above with special reference to the prayer for eviction and mesne profits.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]8. We propose to deal with the first of these points last. On the second point the law seems to be clear that a wakf inter vivos is completed by a mere declaration of endowment by the owner.9. It is also settled law that the settler and those claiming under him are not precluded from showing that no wakf had been created and that the deed was not intended to operate as a wakf but was illusory and fictitious. This is a question of intention evidenced by facts and circumstances showing that it was not to be acted upon. For the purpose of such enquiry subsequent conduct, if it is merely a continuation of conduct at the time of execution, is irrelevant.10. On the question of intention, we see no reason to take a view different from that adopted by the High Court, specially as the contesting respondents had failed to discharge the onus which lay heavily on them to prove that Tasaduk Hussain did not intend to create a wakf in respect of the disputed property or that it was not actedcontention had been rejected by the High Court which held that no account books were ever written.Reference may also be made in this connection to a statement of law in Mullas treatise of Mahomedan Law, 12th Edition, Page 175 under Article 171A that the Act of 1923 did not apply to any wakf under which any benefit was, for the time being, claimable by the wakif or any of his familythe document had stood by itself and if there were more than one mosque in Nathnagar there might be scope for contention that the donor had no particular mosque in mind when he created the wafk. But the doubt, if any, is resolved by the High Court relying on the document dated 10th December 1949 executed by Tasaduk Hussain showing that in the deed of 1914 the mosque referred to was "Barhi Masjid and Madarsa".As the donor was the best person to know which mosque and Madarsa he had in mind and he had identified the same by the document of 1949 we see no reason to take a view different from that of the High Court or hold the deed void for uncertainty.13. The fourth point has no substance inasmuch as Article 142 of the Limitation Act was not applicable to the facts of the case. The suit was filed in 1955 within six years after the death of Tasaduk Hussain who died only a few months after the execution of the documents relied on by the appellants.14. We however find that we must remand the matter for determination of the first point raised by the counsel for the appellants. The issues settled by the Subordinate Judge on 30th August, 1957 at page 17 of the printed record include issue 10, namely, Are the plaintiffs entitled to get a decree for recovery of possession of the properties in the suit?" and issue 12 reading "Are the plaintiffs entitled to get a decree for mesne profits and if so, to what extent?" Our attention was drawn to the judgment of the Subordinate Judge at page 81 of the printed record which shows that the learned Judge only considered nine issues which do not include the above issues 10 and 12. But it may be that in view of issue 8 as finally recast by the learned Judge in delivering his judgment and reading "Are the plaintiffs entitled to any decree as prayed for"? original issues 10 and 12 became superfluous. Besides, the learned Judge did not have to give any decision on issue 8 as he found that the wakf was not valid. In the judgment of the High Court there is no reference to all this and in the concluding paragraph it was recorded that in view of the finding that the sale deed in favour of the contesting respondents did not confer any title on them they were trespassers after 27th December, 1949 though they were tenants of some portions before that date.15. Reference was made to Sections 11 and 18 of the Bihar Buildings (Lease, Rent and Eviction) Control Ac, 1947 under which a decree for eviction could only be passed at the relevant time by the Controller appointed under the Act. As the High Court judgment is not explicit on this point, we think it only proper to remand the matter to the High Court for determination of issue 8 above with special reference to the prayer for eviction and mesne profits. Except as above, the appeal is dismissed and the judgment of the High Court upholding the validity of the wakf and its binding character if affirmed.