MOHAMMED KHASIM A

MOHAMMED DASTAGIR AND ORS.

DECEMBER 15, 2006

[DR. AR. LAKSHMANAN AND AL TAMAS KABIR, JJ.] B

Muslim law

Wakf-Creation of-Held-permanent dedication of impugned properties in favour of God Almighty is necessary-Though objects of wakf C may initially be for benefit of wakf's family and other descendants, ultimate beneficiary has to be God-Other important test is inalienability of properties forming nucleus of wakf-Once a wakf is created, title of wakf in dedicated property is extinguished and vests in God-Wakf is entitled to reserve power to alienate any portion of wakf properties, but for benefit of the wakf-Also, D it is not necessary to use term 'wakf in document in question-On facts, held impugned Deed of Trust did not create a wakf as executant had reserved to himself power to alienate trust properties, along with condition that his two minor daughters were to be given immovable properties worth a specified amount, but were disentitled to same if they had no male issues-Though it provided for performance of certain religious ceremonies, pious and charitable E duties, there was no mention that dedicator had ever intended that impugned properties should constitute a wakf-lt created only rm English Trust.

Settlement of properties~Making of-Held-It is _not necessary that Mohammedan has always to create a wakf-There is no bar for them to create a simple English Trust.

MIS owned various immovable properties and a business. Respondent was one of his children from his first wife and appellant from his second wife.

Respondent executed a Release Deed acknowledging that all properties and

the business belonged to MIS, and on receipt of a sum of money he had G voluntarily relinquished all his rights over them. After execution of the said Deed. MIS executed a Deed of Trust in respect of his various properties. On death of MIS, respondent brought a suit for partition and separate possession against all his surviving heirs, and also making a case against the Release Deed executed by him. 1157 H

A Trial Court held that by virtue of the Trust deed, a Wakf-al-al-Atdad had been created and consequently the properties set out as item Nos. 1 to 3 in the schedule to the plaint were not partible and could not form the subjectmatter of any partition. As to th~ remaining properties, the Trial Court held that they were partible, declared undivided share of defendants therein, but

B respondent was not entitled to any share therein. Accordingly, a preliminary decree for partition and separate possession was drawn up.

Defendants, including appellant, as well as respondent filed appeals against judgment of Trial Court in High Court. The High Court held that both the Release Deed and the Trust Deed were invalid and could not deprive c either respondent or other heirs of MIS from getting their reSpective share in the property left by him. Consequently, appeal preferred by respondent was allowed and one filed by appellant was dismissed. Aggrieved by this, appellant filed the present appeal:

Appellant contended that (i) each of the duties entrusted to the trustees D who were to come into the management of the properties after the death of

MIS were recognized by Mohammedans to be pious and charitable and also religious in nature which gave the document the distinct flavour of a Wakfal-al Aulad (ii) trial court was wrong in concluding that properties subsequently acquired by the estate of MIS did not form part of the dedicated

E properties and were, therefore, partible (iii) mere declaration of an intention to create a Wakf is sufficient to create it, and delivery of possession as in the case of a gift, was not necessary.

Respondent contended that (i) there was no express dedication of the Wakf properties in God and in absence of such a provision, it could not be

F presumed that the exectitant had intended to create a Wakf and not a simple English Trust as indicated from the document itself (ii) there is no legal bar in the creation of a trust for the objects indicated in the Deed of Trust though they may also be lawful objects of a Wakf-al-al-Aulad or even a Public Wakf.

(iii) Trust. Deed had not been acted upon inasmuch as the executant had reserved to himself the power to alienate the properties forming the subject- G matter of the Trust Deed (iv) the Release Deed was not binding on the respondent.

Dismissing the appeals, the Court

HELD 1. Both the Judgments and decrees of the trial court as well as H that of the High Court are liable to be set aside, and the suit filed by

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MOHAMMED KHASIM v. MOHAMMEDDASTAGIR 1159

respondent No. 1 herein is dismissed. (1170-G)

2.1. Though no wakfhad been created by the Deed of Trust, but at the same time it was MIS's intention to create a valid trust. (1168-G)

2.2. In order to constitute a wakf, there must be a permanent dedication

of the properties in question in favour of God Almighty and while the objects B of the wakf may initially be for the benefit of the wakrs family and other descendants, the ultimate beneficiary had to be God. Neither of the two above conditions are fulfilled by the Deed of Trust. ( 1168-H; 11.69-A)

Mui/a 's Principles of Mohammedan Law, referred to.

2.3. The other important test is the nature of inalienability of the properties forming the nucleus of the wakf. Once a wakf is created, the title of the wakf in the dictated property is extinguished and vests in God. The wakifis entitled to reserve power to alienate any portion ofthe wakfproperties, but for the benefit of the wakf. In the instant case, the executant had reserved

to himself the power to alienate the trust properties, but one of the conditions D stipulated in the deed was that his two minor daughters were to be given immovable properties worth Rs. 8,000. A further direction was given by the executant that after his death his daughters each to be given a share of the immovable properties of the value of Rs. 8,000 on condition that they would not be entitled to the said immovable properties if they had no male issues. A E specific direction was given that the properties given to Fathima Bi or Asha Bi would also revert to the Trust if they had no male issues. The aforesaid directions run contrary to the concept of wakf and the more appropriate view appears to be that the executant intended to create a simple English Trust.

(1169-A, B, C, DJ

Kassimiah Charities Rajagiri v. Secretary, Madras State Wakf Board, AIR (1964) Madras 18 approved.

2.4. Although, in order to create a valid wakf it is not necessary to use

the term 'wakf' in the document in question, except for providing for the performance of certain religious ceremonies, pious and charitable duties, there G is no mention that the dedicator had ever intended that the properties forming the subject-matter of the trust should constitute a wakf. The executant appears to have delibertely used the expression "trustee" and not "Mutwalli" which would have ended the controversy that has now arisen. (1169-D, E]

3.1. There is no bar to a Mohammedan creating a simple English Trust. H

A It is not always necessary that in order to make a settlement of his properties, a Mohammendan has always to create a wakf. (1169-Fl

3.2. As far as the Deed of Release is concerned; the same loses much of its significance once it is established that the properties forming the subjectmatter of the Deed of Trust comprises a trust. The properties in question, B therefore vests in the trustees for the time being in management of the same and are not partiable amongst theheirs oflate MIS:· (1170-El

4. The Trust Deed also makes it clear that all properties acquired in future must be considered to be part of the trust properties and hence the C trial court erred in holding that except for the properties mentioned in the Trust Deed, the other properties of MIS were secular in nature. [1170-F)

CIVIL APPELLATE JURISDICTION : Civil Appeal.Nos. 3023-3024 of 2000.

D From the final Judgment and Order 5.10.1998 of the High Court of Kamataka at Bangalore in R.F.A. Nos. 561/87 and .196/90.

With

C.A. Nos. 3025-3026/2000.

Dr. Nafis A. Siddiqui, Mohd. Ishar Alam and Mushir Alam for the Appellant.

Mushtaq Ahmad, Dr. C.V. Zaidi; M.F:A. Shutteri; KhwairakpamNobin Singh, M.A: Chinnasamy and Shakil Ahmed Syed forthe Respondents:

F The Judgment of the Court was delivered by

ALT AMAS KABIR, J. One Mohammed Imam Sahab owned various immovable properties in malleswaram in Bangalore. He had three wives, namely; Ghouse Bee, Hafiza Bi and Zeenath Bee. Mohd. Imam Saheb had one son and G two daughters by his first wifo-Ghouse Bee since deceased, namely, Mohd.

Dastagir, Rahamat Bee and Maimoon Bee. He also had three daughters and one son by his second wife, Hafiza Bi, since deceased, namely, Fathima Bee, Mahaboob Bee, Kathija Bee and Mohammed Khasim. Through Zeenath Bee, his third wife, Mohd .. Imam Siheb had two sons, namely, Anwar and Nazeer.

H From the materials on record, it appears that besides owning several

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MOHAMMED KHASIM v. MOHAMMED DAST AGIR [AL TAMAS KABIR, J.] 1161

immovable properties, Mohd. Imam Saheb also owned a cloth business for A which he had obtained a licence in the name of Mohd. Dastagir, his son by his first wife. On 18th August, 1958, Mohd. Dastagir executed an unregistered Release Deed in favour of Mohd. Imam Saheb, acknowledging the fact that all the properties, including the cloth business, belonged to Mohd. Imam Saheb and that on receipt of a sum of Rs. 5,000 he had voluntarily released B and relinquished all his rights and title over the properties belonging to Mohd. Imam Saheb, including the shop.

After execution of the said Deed of Release, Mohd. Imam Saheb executed a Deed of Trust on 29th February, 1960, in respect of his various properties both movable and immovable. The said deed has also been referred to as a c Hiba. The trust deed indicates that during his lifetime, Mohd. Imam Saheb would act as trustee-in-management along with his second wife, Hafiza Bi, and in the event of death of either of them, the survivor would continue to be the trustee and manage the trust properties according to the terms of the trust deed. It was also stipulated that since the wives and children of Mohd.

Imam Saheb were under his protection, he would be free to enjoy the properties D according to his will and desire and that he would also have the liberty to alienate the trust properties and to purchase fresh properties for the benefit of the trust. Whatever properties were acquired in further were also to be included with the trust properties. The trust deed further provided that on the death of the executant and his second wife, Hafiza Bi, his son, Mohd. Khasim E alias Jani Sab, would become the trustee and would manage the properties in accordance with the terms of trust deed.

Apart from providing for the management of the trust properties, Mohd.

Imam Saheb also stipulated that certain charitable works, which were recognized by Islam to have religious connotations, were to be performed. One of the F religious ceremonies to be performed was to adorn with flowers and sandal paste the tomb of the executant and the holy Quran was to be recited every year during the month of Barvi Shareef from the date for the first moon till the 11th day of the moon and on the day of Milad-Un-Nabi large number of people were to be provided with food.

G Similar directions have been given for recital of the Quran during various

'!" other periods of the year when also food was to be provided to large numbers of people. Provision was also made for the trustee to arrange for good marriages for the daughter of the family. It was also made clear that except for the executant himself, none of the other trustees would have the power H

A to alienate the trust properties. The management of the textile shop was left to Moh. Khasim after the death of the executant. The executant also made provision for his daughters and a statement was made in the trust deed that the Will which the executant had executed on 9th January, 1959 was also being cancelled by virtue of the trust deed.

B After Moh. Imam Saheb's death, his son Mohd. Dastagir, by his first wife, brought a suit for partition and separate possession, being Original Suit No. 273/1972, s ubsequently renumbered as Original Suit No. 381/1980, in the Court of the Vth Additional City Civil Judge at Bangalore City against all the surviving heirs of Mohd. Imam Saheb. The case made out by him was that c the Release Deed which had been executed by him on 18th August, 1958, in favour of Mohd. Imam Saheb was not binding on him as the said deed had been executed by the plaintiff only in deference to his father's wishes.

According to the plaintiff, the said deed was nothing but a sham document and was not acted upon and was, in any event, not valid under Mohammedan Law. It was also pleaded that the plaintiff had been informed by his father that D if he executed Release Deed, Hafiza Bi, second wife of Mohd. Imam Saheb,

would also return certain properties which had been given to her and her children by Mohd. Imam Saheb. It was the further case of the plaintiff that after execution of the Release Deed, Mohd. Imam Saheb Re-possessed certain properties from Hafiza Bi by way of oral gift.

E The suit was contested by defendant Nos. 3, 4, 5, 7, 8, 9 and I 0 by filing separate written statements. The written statement filed by defendant Nos. 3 & 7 were rejected since they had already adopted the written statement filed by the other defendants. Defendant Nos. 1,2, and 6 did not choose to contest the suit and remained ex-parte.

F In her written statement, the 4th defendant took the stand that in view of the Release Deed executed by the plaintiff on 18th August, 1958, he was not entitled to any share in the suit properties apart from the two sites and house in Srirampuram.

G The 5th defendant also resisted the suit by relying on the Release Deed executed by the plaintiff and claimed that the plaintiff had no right in the immovable properties. ~

The 7th defendant Mohd. Khasim, took the defence that his late father had created a trust by virtue of the Trust deed dated 29th February, 1960 and H had appointed the 7th defendant as a trustee for the purpose of performing

MOHAMMED KHASJM v. MOHAMMED DASTAGIR[ALT AMAS KABJR, J.] 1163

various religious rites coupled with the condition that the properties were not A to be alienated. It was contended that the Trust deed was in effect a Wakfnama and that later Mohd. Imam Saheb had created a wakf-al-al-Aulad and consequently the properties which formed the subject-matter of the said document were not liable to be partitioned. The 7th defendant also took the stand that by execution of the Deed of Release, the plaintiff was estopped from maintaining the suit and from claiming any share in the properties in B que!; tion.

As many as 19 issues were framed by the trial court, of which issue nos. 1,2, 13, 14 and 15 appear to be relevant for the purposes of these appeals. The learned trial Judge after an elaborate discussion with regard to issue nos. 13 C and 14 ultimately came to the conclusion that by virtue of the Trust deed, a copy of which had been exhibited as Ex.D-7, a Wakf-al-al-Aulad had been created and consequently the properties set out as item Nos. I to 3 in the schedule to the plaint were not partible and could not form the subject-matter of any partition. Issue Nos. 13 and 14 were, therefore, answered in the affirmative in favour of defendant Nos. 3 and 7 and against the plaintiff and D defendant Nos. 4 and 8 to 10. However, the trial Judge was of the view that the remaining properties were partible~ but the plaintiff was entitled to any share therein. The 5th defendant was declared to be entitled to a Ill Ith undivided share in all the immovable properties. Similarly, the 8th defendant was also declared to be entitled to a l/11 th share while defendant Nos. 9 and E I 0 were declared to be entitled to an. undivided 7 /44th share each in the suit properties. Pursuant to the said findings of the trial Judge, a preliminary decree for partition and separate possession was drawn up on 13th October, 1986.

Four appeals, being RFA Nos. 562/87, 823/87, 196/90 and 567/87, were F filed against the aforesaid judgment. RF A 562/87 was filed by Zeenat Bee and her two sons, who were defendant Nos. 8,9 and IO in the suit. RFA 561/87 was filed by the plaintiff Mohd. Dastagir, RF A 823/87 was filed by Smt.

Fathima Bee and Mehaboob Bee, who were defendant Nos. 4 and 5 in the suit and RFA No. 196/90 was filed by Mohd. Khasim, who was defendant No.7 in the suit.

The four appeals were taken up for hearing together by a learned Single Judge of the Karnataka High Court and were disposed of by a comm:on judgment dated 5th October, 1998. By the said judgment, the appeal preferred by the plaintiff was allowed. The appeals preferred by the defendant Nos. 4 H

A and 5 and defendant Nos: 8 to IO in respect of issue Nos. 13 and 14 were allowed. Consequently, the appeal preferred by Mohd. Khasim was dismissed.

While deciding the aforesaid appeals, the High Court took a view which was completely different from the views expressed by the trial Judge with regard to the interpretation of the Deed of Release and the Trust Deed executed by Mohd. Imam Saheb. After holding that the Trust Deed that not been acted B upon at all, the High Court came to the conclusion that on a construction of the documents in question, the final irresistible inference was that neither had any valid trust nor valid wakf been created in the eye of law so as to deprive the plaintiff from getting a share in the property left by his father. The High Court ultimately concluded that both the Release Deed and the Trust Deed C were invalid and the heirs of Mohd. Imam Saheb were all entitled to their respective shares in the properties of late Mohd. Imam Saheb.

Civil Appeal Nos. 3023-3024/2000 have been filed by defendant No. 7 Mohd. Khasim against the decision in RFAs No. 196/90 and RFA No. 561/87 and Civil Appeal Nos. 3025-3026/2000 have been filed against the same D judgment in disposing ofRFA No. 824/87 and RFA No. 562/87.

Appearing on behalf of Mohd. Khasim, the appellant in all these four appeals, Dr. Nafis Ahmed Siddiqui, learned advocate, submitted that the High Court had erred in coming to a finding that neither the Release Deed nor the Trust Deed had been acted upon and that the estate of Mohd. Imam Saheb was, therefore, open to partition amongst his heirs. Dr. Siddiqui submitted that there was sufficient material on record to show that after the execution of the Release Deed, Mohd. Imam Saheb recovered certain properties from his second wife, Hafiza Bi. He also urged that the reasons given by the learned Single Judge of the High Court in arriving at the conclusion that the Trust Deed had p also not been acted upon, were wholly erroneous and without any substance.

Morevoer, the trial court had also committed an error in holding that only some of the properties were wakf properties which should vest in the 1st defendant while the other properties were to be partitioned. According to Dr.

Siddiqui, the trial court ought to have held that the entire suit properties were trust properties and/or comprised a Wakf-al"al-Aulad

It was submitted that the Appeal Court completely misconstrued and/ or misunderstood the principles governing the creation of wakfs and trusts in coming to the conclusion that the Trust Deed had to be rejected in toto.

It was also submitted that although it was nobody's case that that the Trust H Deed was in effect a Will, the Appeal Court arrived at an extraneous finding

MOHAMMED KHASIM v. MOHAMMED DASTAGIR[AL TAMAS KABIR, J.] 1165

that if the same was to be construed as a Will, it could not operate on more A than l/3 of the net assets for the benefit of a wakf which might have been created thereby. Dr. Siddiqui pointed out that the error in the thought process of the High Court would be glaringly evident from its finding that once the trial court found that the Trust Deed was neither a gift nor a Will simpliciter, but came nearest to being a non-testamentary wakf, there was no question B of such a wakf and there was no question of it coming into force from the date of its creation.

Dr. Siddiqui, on the other hand, contended that the recitals in the Trust Deed itself would indicate the nature of the document. It was urged that although the expressions used in the document (Ext. D-7) seemed to indicate C that late Mohd. Imam Saheb had created a trust of his properties, he use for which the trust properties and the usufructs were to be utilized made it clear that Mohd. Imam Saheb's real intention was to create a wakf. Dr. Siddiqui urged that the Mohammedan Law recognized the formation of private wakfs for the benefit of the dedicator (wakif) and his family members, which among Mohammedans is considered to be a pious act. Dr. Siddiqui submitted that D all doubts relating to the creation of such wakfs were put at rest by the enanctment of the Musalman Wakf Validating Act, 1913. Dr. Siddiqui also urged that under the Indian Trust Act, 1882, there is provision for making.a '- simple trust in the English form but there is no concept of family settlement as provided under the Mohammedan Law for the creation of private wakfs E generally known as wakfs-al-al-Aulad.

Dr. Siddiqui pointed out that each of the duties entrusted to the trustees who were to come into the management of the properties after the death of Mohd. Imam Saheb, were recognized by Mohammedans to be pious and charitable and also religious in nature which gave the document the distinct p flavour of a Wakf-al-al-Aulad, which fact had been correctly noticed by the trial court in respect of the properties included in the Trust Deed and/or Wakf nama. Where the trial court had gone wrong was in arriving at the conclusion that properties subsequently acquired by the estate of Mohd. Imam Saheb did not form part of the dedicated properties and were, therefore, partible.

Since the principle of law being sought to be urged by Dr. Siddiqui regarding the creation of a Wakfal-al-Aulad is well established, there is no need to refer to the various decisions cited by him in that regard.

It was next contended that mere declaration of an intention to create a

A Wakf is sufficient to create such a Wakf and it was not necessary that possession was required to be delivered as in the case of a gift. It was also urged that from the contents of a document if it could be made out that the executant had wanted to create a Wakf-al-al-Aulad, though not mentioned in express terms, an inference in favour of the creation of a Wakf could be B drawn. In support of such submission, reference was made to a decision of this Court in case of Garib Das and Ors. v. Munshi Abdul hamid and Ors., reported in AIR (1970) and 1035. Reference was also made to various other decisions of different High Courts which explain the same principle.

On the question of Ext. D-21, which was an unregistered document said C to have been executed on 10th April, 1963 cancelling the Trust Deed dated 29th February, 1960, it was urged that the trial court had rightly chosen not to rely on the same since cancellation of a registered document could only be done by virtue of another registered document.

Dr. Siddiqui concluded on the note that if it is accepted that by virtue D of the Deed of Trust, a Wakf-al-al-Aulad, was in effect created, then the properties comprising the said Wakf were not particle and the suit was liable to be dismissed and the judgment and decree of the High Court in its entirety and that of the trial court partly, were liable to be set aside and the suit was

liable to be dismissed. :.s

Mr. Mushtaq Ahmad, learned advocate, who appeared for some of the respondents did not dispute the different propositions of law urged by Dr.

Siddiqui, but contended that they could not be applied to the fact of the instant case. He urged that in order to constitute a Wakf, the properties dedicated must vest in God and even if the intention was to create a Wakf- F al-al-Au/ad, the ultimate benefit must also vest in God. Mr. Ahmad submitted that in the instant case there is no express dedication of the Wakf properties in God and in the absence of such a provision, it could not be presumed that the executant had intended to create Wakf and not a simple English Trust as indicated from the document itself. It was also submitted that there is no legal bar in the crea!ion of a trust for the objects indicated in the Deed of Trust G (Ext. D-7), though it could be contended that they are also the lawful objects of a Wakf-al-al-Aulad or even a Public Wakf.

However, according to Mr. Ahmad the Trust Deed had not been acted upon, as had been rightly found by the High Court, inasmuch as, the executant had reserved to himself the power to alienate the properties forming the

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MOHAMMEDKHASIMv.MOHAMMEDDASTAGIR[ALTAMASKABIR, J.] 1167

subject-matter of the Trust Deed. Furthermore, neither the executant nor his A descendants had ever asserted that the properties in question constitute a trust. It was urged that Mohd. Imam Sahab died intestate on 7th August, l 969 leaving behind the suit properties, both movable and immovable, which he had acquired during his lifetime and after his death the same had been jointly owned and possessed by the plaintiff and the defendants as his heirs. Since the parties had been unable to arrive at an amicable settlement, in respect of B their respective shares in the suit properties, the plaintiff was compelled to file a suit for partition and separate possession of his 2/13 share therein. It was urged that the Release Deed dated 18th August, 1958 was not binding on the plaintiff since it had been executed only to satisfy the wishes of Mohd.

Imam Sahb. It was nothing but a sham document, not acted upon and it did C not bind the plaintiff nor did it take away the plaintiffs right to inherit the suit properties.

Interestingly, apart from defendant No.7 (Mohd. Khasim), all the other heirs of Mohd. Imam Saheb supported the plaintiff and none of them supported the claim of defendant No. 7 that the executant had intended to create a Wakf- D al-al-Au/ad or even a Trust.

In support of his submissions that the executant of the Release Deed did not prevent the plaintiff from demanding a share in the estate of Mohd.

Imam Saheb, reliance was placed on a decision of this Court in the case of Gu/am Abbas v. Haji Kayyam Ali and Ors., AIR (1973) SC 554, in which is E was inter-alia observed that the renunciation of a supposed right based upon an expectancy, could not, by any test found there, be considered prohibited. The binding force in future of such a renunciation would, even according to strict Muslim Jurisprudence, depend upon the attendant circumstances and the whole course of conduct of which it forms a part.

As will be evident from what has been set out hereinabove, the outcome of these appeals will depend on an interpretation of the document executed by Mohd. Imam Saheb on 29th February, 1960 and styled as a "Deed of Trust". As noticed hereinbefore, the trial court had held that the said document purported to create a Wakf-al-al-Aulad in respect of the properties indicated G therein and the said properties could not form the subject-matter of a partition suit. However, the trial court went on to hold that the other properties forming part of the estate of Mohd. Imam Saheb were his secular properties and were, therefore, partible amongst his heirs. The High Court reversed the said decision of the trial court as far as the finding regarding the creation ofa wakf H

A is concerned. The High Court, ori a construction of the said Deed, held that neither had a wakf been created nor a valid trust and that both the Release Deed and the Trust Deed were invalid and the properties of Mohd. Imam Saheb were capable of being partitioned amongst his heirs.

On a perusal of the Release Deed dated 18th August, 1958 executed by B Mohd. Dastagir, the plaintiff in the suit, and the Deed of Trust .dated 29th February, 1960 executed by Mohd. Imam Saheb, we are unable to agree with the findings both of the trial court as well as the High Court for the reasons hereinafter following.

c A plain reading of tht: document dated 29th February, 1960 indicates that Mohd. Imam Saheb had intended that his properties, both movable and immovable, should remain intact for the object indicated in the Deed. It is also clear from the recitals in the Deed that he did not want his estate to be alienated by any of the trustees who would be in management, by reserving the power of alienation only to himself and that too for buying other properties D which were to vest in the Trust. The objects for which the income from the properties were to be expended are mostly of a pious and religious nature.

According to Mohammedan jurists, the term 'Wakf literally means dedication or as noted by Mulla in his "Principles of Mohammedan Law", the permanent dedication by a person professing the Mussalman faith of any property for

E any purpose recognized by Mussalman law as religious, pious or charitable.

The de~.ire of Mohd. Imam Saheb to tie up the properties so that they would not be dissipated and the objects on which the usufructs of the properties were to be spent, most certainly appears to have influenced the thinking of the trial court in holding that Mohd. Imam Saheb had wanted to create a wakf The said reasoning was not accepted by The High Court. However, the High F Court also went wrong in holding that a valid trust had not also been created by the document of 29th February, 1960. In fact, while we agree with the High Court on the first count, we are unable to.agree with the High Court on the second count. In other words, we agree with the High Court's finding that no wakf had been created by the aforesaid document but at the same time we are also of the view that it was Mohd. Imam Saheb's intention to create G a valid trust.

As urged both by Dr. Siddiqui and Mr. Mushtaq Ahmad, in order to consti.tute a wakf, there must be a permanent dedication of the properties in • question in favour of God Almighty and while the objects of the wakf may

H initially be for the benefit of the wakfs family and other descendants, the

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ultimate beneficiary had to be God. Neither of the two above conditions are A fulfilled by the document dated 29th February, 1960. The other important test is the nature of inalienability of the properties forming the nucleus of the wakf. Once a wakf is created, the title of the wakif in the dedicated property is extinguished and vests in God. The wakif is entitled to reserve power to alienate any portion of the wakf properties, but for the benefit of the wakf. B In the instant case, the executant had reserved to himself the power to alienate the trust properties, but one of the conditions stipulated in the deed was that his two minor daughters were to be given immovable properties worth Rs. 8,000. A further direction was given by the executant that after his death his daughters, Mymoona Bi and Fathima Bi, were each to be given a share of the immovable properties of the value of Rs; 8,000 on condition that c they would not be entitled to the said immovable properties if they had no male issues. A specific direction was given that the properties given to Fathima Bi or Asha Bi would also revert to the Trust if they had no male issues.

The aforesaid directions run contrary to the concept of wakf and the D lit more appropriate view appears to be that the executant intended to create a simple English Trust. Although, in order to create a valid wakf it is not necessary to use the term 'wakf in the document in question, except for providing for the performance of certain religious ceremonies, pious and charitable duties, there is no mention that the dedicator had ever intended E that the properties forming the subject-matter of the trust should constitute a wakf. The executant appears to have deliberately used the expression "trustee" and not "Mutwalli' which would have ended the controversy that has now arisen.

The law is quite clear that there is no bar to a Mohammedan creating F a simple English Trust. It is not always necessary that in order to make a settlement of his properties, a Mohammedan has always to create a wakf. In fact, the said view has been expressed in a Division bench decision of the Madras High Court in Kassimiah Charities Rajagiri v. Secretary, Madras State Wakf Board, AIR (1964) Madras 18~ In the said case, while confronted G with a similar question, the Division Bench observed that a Muslim can endow properties to charities either by adopting his favourite mode of creating a wakf or by endowing property conforming to the law of Trusts. The question whether a particular endowment amounts to a wakf under the Mohammedan law or to a Trust as recognized by modem jurisprudence, will have to be decided primarily on a true construction of the document establishing the H -·

A charity, However, it has also been stated in the said decision that vesting of a power of alienation by way of exchange or sale under the document creating wakf is not inconsistent with the document constituting a wakf under the Muslim law. A dedication to a wakf will not, therefore, cease to be such merely because a power is reserved in the Mutwalli to exchange the wakf B lands with other lands or to sell them and purchase other lands so that the lands so taken in exchange or by purchase, might become the subject of the wakf.

In the present case, the power of alienation has been reserved only to the founder of the trust and all the other trustees have been prohibited from doing so. Accordingly, the observations made in the aforesaid decision C regarding the power of alienation reserved to MutawUi does not really help the case of the appellant who is interest in establishing that the properties were wakf properties.

In our view, in the face of the recitals contained in the document of 29th February, 1960, there was no material for the High Court to observe that after D taking all the documents together, the final irresistible inference is that there was no valid trust nor a valid wakf in the eye of law. Such a finding is completely contrary to the document itself and has to be set aside.

As far as the Deed of Release is concerned, the same loses much of its significance once it is established that the properties forming the subject- £ matter of the document dated 29th February, 1960 comprises a trust. The properties in question, therefore vests in the trustees for the time being in management of the same and not partible amongst the heirs of late Mohd.

Imam Saheb.

The Trust Deed also makes it clear that all properties acquired in further must be considered to be part of the trust properties and hence the trial court F erred in holding that except for the properties mentioned in the Trust Deed, the other properties of Mohd. Imam Saheb were secular in nature.

Consequently, both the judgments and decrees of the trial court as well as that of the High Court are liable to be set aside. The appeals preferred against the common judgment dated 5th October, 1998 passed by the Kamataka G High Court in the four appeals preferred against the judgment and decree of the trial court are dismissed and the suit filed by Mohd. Dastagir, respondent No. I herein is dismissed.

Having regard to the peculiar facts involved, the parties will all bear their own costs.

H vs Appeals dismissed.

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