Case: Thakur Mohd. Ismail Vs. Thakur Sabir Ali

1. This is a defendants appeal on a certificate granted by the Allahabad High Court. The suit was brought by Thakur Sabir Ali plaintiff-respondent for possession. The following pedigree-table omitting the unnecessary names) which is not in dispute, may be set out to appreciate the case of the plaintiff:The case of the plaintiff was that Thakur Amir Baksh owned considerable properly known as Tipraha Estate in the district of Bahraich at the time of the annexation of Oudh. He died in 1857 and was succeeded by his son Thakur Faten Mohd., who was subsequently recognised by the Government as the talukdar of the Tipraha Estate. Thakur Fatch Mohd. died issueless and on his death Thakur Nabi Baksh succeeded him as the talukdar under the family custom and under the provisions of the Oudh Estates Act, No. 1 of 1869, (hereinafter called the Act), On the death of Thakur Nabi Baksh the estate passed to his only son Asghar Ali. who in his life time acquired certain other properties which were, both talukdari and non-talukdari in nature. In August 1925 Thakur Asghar-Ali executed a deed of wakf-alal-aulad by means of which he created a wakf of his entire property for the benefit of himself, his family and descendants generation after generation. He was to be the first mutwalli for his life-time and thereafter his son Thakur Mohd. Umar, and after him, his other sons and then his other descendants selected according to the rule of primogeniture were to be mutwallis. The wakf deed provided that some amounts would be paid to charities and some as maintenance allowance to the members of his family generation after generation, the remainder going to the mutwalli Asghar Ali died in February 1937, leaving behind properties included in Schedules A to I appended to the plaint. Disputes arose thereafter about succession to and possession of his properties, Mohd. Umar claimed to be entitled to the entire property under the wakf deed of August 1925 while the plaintiff, being the eldest son of the eldest son Nasirali who had died in the lifetime of his father Thakur Asghar Ali claimed succession to the property under the rule of lineal primogeniture. This led to protracted litigation in the Revenue Courts and eventually an order for mutation was passed in favour of Thakur Mohd. Umar defendant who is now dead. Thakur Mohd. Umar came into possession of the properties mentioned in schedules A, B, D, E, F, H (except certain items mentioned therein) while the other defendants came into possession of certain other properties, with the details of which we are not concerned now.2. Thakur Sabir Ali then instituted the present suit for the possession of the entire property left by Thakur Asghar ali and for mesne profits. His case was that he was entitled to succession under the rule of male lineal primogeniture in accordance with the provisions of the Act and the family custom. He denied the execution, attestation, genuineness and validity of the wakf deed alleged to have been executed by Thakur Asghara ali which was relied upon by Thakur Mohd. Umar for his title to the property. The wakf deed was further challenged on other grounds with which we are however not concerned now except one. But the main attack against the validity of the wakf deed was that the subject-matter of the deed was property subject to the special provisions of the Act and therefore the said deed was not valid, particularly in view of the provisions contained in Ss. 11 and 12 of the Act. This is the main point which falls to be considered in the present appeal.3. The defence was that the wakf deed was duly executed and registered and acted upon and that no fraud, undue influence or coercion as alleged by the plaintiff had been practised upon Thakur Asghar ali in that connection. It was further alleged that even if the wakf was invalid as a gift it would be operative as a will and the mutwalli would be entitled to the possession of the whole of the estate of Thakur Asghar ali under the wakf deed. The defendants also resisted the attack on the wakf deed based on the provisions of the Act.4. The trial court found that the wakf deed was duly executed and was a genuine and valid document. The trial court also found that the plaintiff was entitled under the family custom and also under the provisions of the Act to inherit by the rule of male lineal primogeniture such properties as were left by Thakur Asghar ali at the time of his death; but as the trial court held that the wakf deed was valid, it dismissed the suit of the plaintiff except with respect to two properties in Schedule A to the plaint. The suit was decreed with respect to these two properties on the ground that they were not included in the wakf deed.5. There was then an appeal by Sabirali to the High Court. It upheld the finding of the trial court that the wakf deed was a genuine document. It also held that it was a valid wakf as a wakf-alal-aulad under the Mussalman Wakf Validating Act (No. 6 of 1913); but it held that the wakf deed was invalid because it contravened the provision of S. 12 of the Act. The High Court however further held that even though the wakf deed failed as a deed creating a wakf, the directions contained in it for the payment of maintenance allowance and right of residence in favour of persons who were alive at the date of the death of Asghar ali and for the expenses to be incurred in respect of charities would be binding on the plaintiff as being the last will and testament of Asghar ali. It therefore allowed the appeal and decreed the plaintiffs suit for possession over the properties which were included in the deed of wakf as also over the other properties which belonged to Asghar ali at the time of his death subject to allowances and charities to persons living at the time of the death of Asghar ali and declared that the allowances and amounts to be spent on charities were to be a charge on the properties mentioned in the deed of wakf. The High Court decree also contained various consequential directions with which we are however not concerned in the present appeal. The plaintiff having not appealed from that part of the decree by which the allowances and the amounts to be spent on charities have to be paid out of the properties included in the deed of wakf and by which a charge was created on the properties therefor, that part of the decree of the High Court has become final.

Court's reasoning:
It is clear therefore that the Act was made to define the rights of holders of talukdari estates and to regulate the succession thereto and the provisions in the Act being a complete Code relating to the special class of persons in respect of the properties conferred upon them by the British Government, whatever rights the talukdars had in the property conferred on them would have to be found in the Act and would be circumscribed by itswill be seen that there is one difference between S. 13 which deals with gifts for purpose other than religious and charitable and S. 18 which deals with gifts for religious and charitable uses inasmuch as delivery of possession is not made necessary for the validity of the gift under S. 18 as is the case in S. 13 (2). The rest of the Act deals with intestate succession and other matters with which however we are notcan see no validity in the first contention on behalf of the appellant, namely, that a wakaf-alal-aulad is entirely outside the purview of the Act and the provisions of the Act will not apply to it and it will be valid in view of the Act VI of 1913. It is not disputed that the property with which the wakf-alal-aulad in this case deals is property which would be governed by the Act. We have already said that the Act is a special Act affecting special class of persons in respect of the properties conferred upon them by the British Government and is a self-contained and complete code in regard to the matters contained in it. Therefore, so far as the property which comes under the Act is concerned we must find power in the Act conferred on the talukdar to deal with the property,and it cannot be accepted that the talukdar can deal with the property which is governed by the Act in any manner not provided by the Act. If the creation of a wakf-alal-aulad is outside the purview of the Act it will be clear that any wakf-alal-aulad dealing with property which is governed by the Act would immediately be invalid so far as that property is concerned, for the property conferred on the talukdar which is governed by the Act can only be dealt with as provided in the Act and not otherwise, the Act being a complete Code with respect to the rights of the talukdar to deal with such property. On the argument therefore that a wakf-alal-aulad is a manner of dealing with the property which is entirely outside the Act, the wakf must fail at once so far as it deals with property governed by the Act.10. But we are of opinion that the contention that a wakf-alal-aulad is something which is entirely outside the purview of the Act, even though it may deal with property governed by the Act cannot be accepted. A wakf-alal-aulad must by its very nature be some kind of transfer of property by the person making the wakf. Previous to Act VI of 1913 the Privy Council had held in Abul Fata Mahomed Ishak v. Russomoy Chowdhry 22 Ind App 76 (PC) that "under Mahomedan law a perpetual family settlement expressly made as wakf is not legal merely because there is an ultimate but illusory gift to the poor". It was because of this judgment by which wakfs-ala1-aulad as known to Mahomedan law were declared illegal that Act VI of 1913 was passed by which such wakfs became legal. Obviously, therefore, when such was became legal there was a transfer of the property covered by the wakf and the transfer was in favour of God Almighty in whom thereafter the property subject to wakf became vested. This follows from the theory of Mahomedan law under which wakfs created for purposes which are considered by that law to be religious and charitable result in the transfer of ownership of wakf property in perpetuity to God Almighty, Further the transfer being without consideration can only amount to a gift,Therefore wakfs-alal-aulad which have become valid after Act VI of 1913 must be held to be gifts of property to God Almighty for certain purposes and are clearly transfers within the meaning of that term in S. 2 of the Act. Incidentally we may add that the use of the words "inter vivos" in the definition of the word "transfer merely emphasises that the transfer must be one effective during the life-time of the transferor as contrasted with a transfer by will which takes effect on the death of the transferor. Whenever therefore a transfer takes place by a wakf-alal-aulad and the property, included in the deed is governed by the provisions of the Act we have to go to the provisions contained in the Act with respect to the power of the talukdar to make such transfer. The transfer would only be valid if it is within the powers conferred on theare however of opinion that S. 18 only provides for the procedure for making gifts for charitable and religious purposes while S. 13 provides for the procedure for making gifts to other persons for other purposes. The power of the talukdar to make a gift is to be found in S.11, the manner in which he can make a gift is to be found in S. 13 for one class of gifts and in S. 18 for another class of gifts. Therefore we cannot accept the argument that S. 18 is an independent Section fully providing for gifts of a charitable and religious nature; it is merely A Procedural Provision for gifts of the type covered by it. But even if, the argument of the learned counsel for the appellant were correct that S. 18 is an independent provision relating to gifts for charitable or religious purposes, the gifts made under S. 18 would still be subject to S. 12, as S. 12 opens with the words "no transfer or bequest under this Act shall be valid." Therefore even if S. 18 were an independent Section it still deals with a transfer of a particular type under the Act and that transfer would also be subject to S. 12, We may in this connection refer to S. 18 of the Transfer of Property Act (No. 4 of 1882) which specifically provides that the rule against perpeuity (S. 14 of the Transfer of Property Act) shall not apply to a transfer "for the benefit of the public in the advancement of religion, knowledge, commerce, health, safety or any other object beneficial to mankind". Section 18 of the Act however provides no such exception so far as religious or charitable gifts made under the Act are concerned and such gifts are also subject to S.words with which we are concerned are "religious or charitable uses" which appear in S. 18 of the Act, and it would in our opinion require no persuasion to hold that the authority which was framing the Act could not have possibly intended that provision by wakf for ones children was provision for religious or charitable uses. The view taken by the Privy Council in Abul Fata Mahomed Ishaks case, 22 Ind App 76 (PC) clearly shows that the authority responsible for the Act could never contemplate wakfs in which the beneficiaries were the descendants of the wakif as wakfs for religious or charitable purposes. Further, the Act applies, as we have already mentioned not only to Mahomedan talukdars but talukdars of all religions and it could hardly be intended when the words "religious or charitable uses" were used in S. 18 that a wakf in which the beneficiaries were in the main the descendants of the wakif would be included in S. 18. Such wakfs could never be considered to be for charitable or religious purposes under Hindu law or the Christian law. In these circumstances it must be held that the wakf in the present case, though in theory it vests the property in God Almighty, is not for charitable or religious purposes. It must therefore be treated as a gift to God Almighty in which however for generations to come God Almighty would have no beneficial ownership. Nor do we think that the Wakf Validating Act of 1913 makes any difference to this position. That Act specifically provides by S. 3 that a Muslim can lawfully create a wakf-alal-aulad. This however does not mean that the purpose of such a wakf is a religious or charitable purpose. This is made clear by the proviso to S. 3, which provides that the ultimate benefit in such a case must be for a religious or charitable purpose. The proviso would have been unnecessary if the purpose of a wakf-alal-aulad was recognised as religious or charitable by this law. The same in our opinion will follow from the provision in S. 4.13. In such a case S. 12 must invalidate this wakf. As we have already said, S. 12 provides the rule against perpetuity; but it is said that the rule against perpetuity provided in this Section is not infringed by this wakf because the property is vested in God immediately when the wakf-alal-aulad is created and all that S.12 requires is that the vesting of the property transferred should not be delayed beyond a certain period. It is urged that in this case the vesting takes place immediately on the making of the wakf and therefore the gift is not covered by S. 12. This immediately raises the question as to what is meant by vesting under S. 12.It may be conceded that property included in a wakf-alal-aulad vests in God Almighty, but the vesting that S. 12 says may not be delayed beyond a certain period is in our opinion absorute vesting (i.e., vesting of both legal and beneficial estate) which may not be delayed beyond a certain period. Such absolute vesting mvolves that the person in whom the property is vested can deal with it as he likes and can deal with its usufruct also as he likes. If the person in whom the property may be regaily vested cannot deal with the usufruct as he likes, there is not that absolute vesting of the property in him which the rule against perpetuity enshrined in S.12 requires. If this were not so, it will be quite easy to get round the rule against perpetuity by creating a trust in which the property immediately vests in the trustee and then providing for beneficial enjoyment in perpetuity by other persons in whom the property never vests. It is well settled that a trust of this kind immediately vesting the property in the trustee leaving the usufruct tied up forever for the benefit of other persons infringes the rule againstthough therefore the property may vest in God immediately on the creation of the wakf-alal-aulad in this case, as the beneficial enjoyment thereof is not for the purposes of God i.e. religious or charitable purposes, the vesting which is envisaged by S. 12 is undoubtedly postponed in this case beyond the period allowed by that Section. Therefore, the wakf in this case even though it may be treated as a gift to God legally vesting property in Him immediately on its execution is hit by S. 12, for the absolute vesting which that Section contemplates is postponed beyond the period mentioned in that Section. The view therefore taken by the High Court that the wakf in this case is hit by S. 12 of the Act is correct.14. Finally, it was urged that at any rate, so long as the appellant Mohd. Ismail is alive the plaintiff-respondent could not claim possession and therefore the decree of the High Court to that extent was wrong. We have not been able to appreciate this contention at all. Once the wakf fails as a whole, as we hold that it does, Mohd. Ismail cannot claim to remain in possession, for his right to remain in possession depends upon his being mutawalli of the wakf.