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Appeal from Original Decree No. 57 of 1945, decided on 18th June, 1951 against the decree of Naresh Chandra Roy Subordinate judge, 3rd Court of Zillah Chittagong, dated the 3rd June, 1944 in Partition Suit No. 7 of 1942.
‑Wakf‑Mere declaration sufficient to complete a valid dedication‑Delivery of possession to Mutwalli not necessary if there is real intention on part of Wakif to divest himself of subject of Wakf.
Mere declaration by a wakif is sufficient to complete a valid wakf and if is not necessary that possession should be delivered to the mutwalli.
Malfeasance or misfeasance on the part of the mutwalli cannot invalidate a wakf which at its creation was a valid wakf. If the wakif made the wakf in good faith and with real inten tion of divesting herself of the ownership of the wakf properties it was a valid wakf.
Bikani Mia v. Sukh Lal Poddar, I. L. R. 20 Cal. 116 (F B); Mst. Rahman v. Mst. Baqridan A I R 1936 Oudh 213 (F B) I L R 11 Luck. 735 ref.
‑Wakf‑Appointment of minor as Mutwalli will not invalidate dedication.
A minor is entitled to succeed as a mutwalli and his ap pointment will not invalidate the wakf.
Kamz Zohra v. Saiyid Muztaba Husain I L R 1923 Pat. Vol. II p. 819 ; Nabi‑un‑nissa Bibi v. Liaqat Ali I L R 50 All. 830 ref.
‑Wakf‑Musha (undivided property) for up‑keep of existing mosque‑Valid.
The wakf of musha for the upkeep of a mosque is not invalid.
Sheikh Muhammad Mumtaz Ahmad v. Zubaida Jan, 161 A 205 ; Ibrahim Goolam Ariff v. Saiboo I L R35 Cal. 1; Muhammad Ayub Ali v. Amir Khan 43 C W N 118 ref.
Khondkar Muhammad Hassan for Imam Husain Chowdhury, for Appellants.
Rohini Benode Rakshit, for Respondents.
---This appeal is at the instance of defendants Nos. 1 and 2 and is directed against the decision of Naresh Chandra Roy, Esq., Subordinate judge, 3rd Court, Chittagong, in a suit for partition.
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Abdul Ali=Abjan Bibi
Oli Mia Choudhury = Jamila Khatun died in 1902 died in 1936 ____________________________________ __________________________
Yunus Mia, Khorshed Alam, Firoz Ayar Khatoon, Umrat Khatoon, Joynab, Defendant Defendant Ahmad Defendant Defendant Khatoon, No.1 No. 2. Plaintiff. No. 3. No. 4. Dead Abul Fattah=Abdul Aziz, (Brother of Abul Fattah).
_______________________________ ____________ __________
Saleha Khatoon, Salema Defendant Khatun. No. 5. ____________________________________ ________________________ _____________________________
Obedul Huq Serajul Fluu, Islam Khatun Amina Khatun, Defendant Defendant Defendant Defendant No. 6 . No. 7. No 11. No. 10. |
The suit for partition was in respect of the estate of Abjan Bibi, Oli Mia Chowdhury and Jamila Khatoon. In most of the suit properties Abjan Bibi had eight annas share and her son, Oli Mia had the remaining eight annas, and some of the pro perties also belonged to Jamila Khatoon. The plaintiff's case is as follows: Oli Mia died in 1902 leaving his mother Abjan Bibi, his wife Jamila, his sons Yunus, Khurshed Alam and Firoz Ahmad ; daughters Ayer Khatoon, Omrat Khatoon and Joynab Khatoon, as his heirs under the Muhammadan Law. Abjan Bibi died a few months, thereafter, leaving the sons and daughters of Oli Mia as her heirs. Later Joynab Khatoon died leaving her mother Jamila, her husband, Abul Fattah, and daughters, Saleha and Salema, as her heirs. Salema died un married leaving her father Abul Fatah, her grandmother Jamila and her sister Saleha as her heirs. Subsequently, Abul Fattah died leaving a daughter and nephew and neices (children of his brother Abdul Aziz) as his heirs. It is alleged that Omrat Khatoon sold her share in some of the properties which she had inherited from her father to her brothers ; and she also relinqu ished the shares which she had inherited from her grandmother Abjan Bihi in favour of her brothers. It is further alleged that Joynab Khatoon relinquished her share in the suit properties in favour of her brother. Jamila Khatoon died in 19361eaving her sons and daughters as her heirs. Plaintiff Firoz Ahmad and his sister Ayar Khatoon, defendant No. 3, sold some lands which they had inherited to defendant No. 8. Plaintiff Firoz Ahmad later purchased the remaining share of Ayar Khatoon. As the plaintiff came to learn that his brother Yunus was in possession as mutwalli of some of the properties on the strength of a fraudulent wakfnama purported to have been executed by Abjan Bibi and had successfully for the said wakf registered in the office of the Wakf Commissioner, the plaintiff filed this suit for portion claiming six annas eight pies share in the suit properties.
The main defence of defendant No. 1 Yunus Mia Chow dhury, and defendant No. 2 Khorshed Alam, who mainly contested the suit, was that Abjan Bibi had created a valid wakf of her properties on the 7th August, 1902 ; that defendant No. 1 Yunus Mia was the mutwalti of the said wakf in terms of wakf nama ; that the said wakf was duly enrolled in accordance with the provisions of the Bengal Wakf Act; and that the decision of the Wakf Commissioner that the particular property was wakf could not be challenged in this suit. It was further contended that all the co‑sharers were not made parties in the suit and in their absence the suit was not maintainable. It was also contended that defendant No. 1 Yunus Mia, was in posses sion of most of the suit properties as mutwalli, and hence in the absence of a prayer for recovery of possession this suit could not proceed. They also denied the story of relinquishment by their sisters as stated in the plaint.
Defendant No. 4 Omrat Khatoon in her written statement denied the alleged story of the relinquishment of her share in the ancestral properties in favour of her brothers. Defendant No. 5 Saleha Khatoon also filed a written statement and denied the story of relinquishment by her mother Joynab Khatoon of her share in the ancestral property in favour of her brothers. Defendant No. 8 Rahatannessa Begum as purchaser of some lands from the plaintiff and defendant No. 3 for value claimed that her possession in respect of the properties purchased by her should not be disturbed. Defendants Nos. 9, 12, 15, 16 and 17 also filed written statements; but they did not appear at the hearing of the suit.
The learned Subordinate judge found : (1) that the properties .in which other co‑sharers were interest ed were excluded by the. plaintiff, and hence the suit was maintainable ; , (2) that the wakf was enrolled after the institution of the partition suit, and hence the Civil Court had jurisdiction to entertain the suit. In support of this finding reliance was placed on the case reported in 48 C W N 57 ; (3) that the plaintiff denied the wakf and the story of ouster by defendants Nos. 1 and.2 and hence it was riot necessary for the plaintiff to ask for recovery of possession. In support of this finding reliance was placed on the case reported in 29 C W N 76 ; (4) that the properties in respect of which partition was claimed had been properly described ; (5) that the registered wakfnama, dated the 7th August; 1902, was properly executed by Abjan Bibi ; (6) that the wakfnama was invalid inasmuch as (i) the wakif had appointed defendant No. 1 a minor as the first mutwalli and (ii) the wakf offends against the doctrine of musha ; (7) that the plaintiff has failed to prove that Omrat Khatoon and Joynab Khatoon had relinquished their shares in favour of their brothers ; (8) that the plaintiff as heir of his father Oli Mia arid his grand‑mother Abjan Bibi, his mother Jamila Khatoon and also by purchase of the shares of Ayar Khatoon and Omrat Khatoon was entitled to get 2151576 share that is 5 annas 11 I pies in the suit properties.
He accordingly decreed the suit in part in a preliminary form and declared the plaintiff's share to the extent of 5 annas 111 pies in the suit properties, and ordered that he should recover possession of the same by partition. He also gave certain directions to the Commissioner to be appointed to effect the partition.
Defendants Nos. 1 and 2 have preferred this appeal against the judgment and decree of the learned Subordinate Judge.
The only question that has been raised in this appeal is as to the validity of the wakf executed by Abjan Bibi on the 7th August, 1902, in respect of some of the suit properties. Mr. K. M. Hasan appearing on behalf of the appellants has con tended that this was a valid wakf, wheras Mr. Rakshit on behalf of the plaintiff respondent has urged that it was invalid in law.
Now the validity of this wakf was questioned by the plaintiff upon four grounds : (1) that it was not really execu ted by Abjan Bibi ; (2) that the wakif did not divest herself of the property which was the subject matter of the wakf ; (3) that she appointed a minor as the first mutwalli of the wakf ; (4) that it offends against the doctrine of musha.
The first ground may be disposed of in a few words. The finding of the learned Subordinate judge is that the Wakfnama was properly executed. This finding has not been challenged before us. The observation of the learned Sub ordinate Judge on this point is as follows :‑
Of course, the defendants themselves have not been able to prove the due execution of the document in view of the fact that more then 40 years elapsed and in view of the fact that all the attesting witnesses are dead. For the same reason, they have not been able to prove that, the executant having been a purdanashin lady, the contents were read over to her and that she knew the nature of the transaction. The plaintiff has not raised any specific objection regarding this matter but contended himself in putting forward a bold and reckless story of forgery which has been found to be false. It must be presumed at this distant time the docu ment was properly exe'cuted by Abjan Bibi .
As regards the second of these grounds, namely, whether the wakif had divested herself of the properties, the observa tion of the learned Subordinate judge is as follows :‑
Learned Pleader for the plaintiff has quoted the ruling reported in 15 All. 321 in support of his contention that the wakif should have divested herself of the properties and when she did not do so by retaining possession of them until her death. The wakf must be held to have been invalid. This view of the Allahabad High Court was not, however, accepted by their Lordships of the Calcutta High Court and it has been held that wakf intervivos is completed by mere declaration of endowment by the owner (vide Mulla's Muhammadan Law, 10th Edition, section 151, and the cases quoted therein).
The learned Subordinate Judge has not in so many words stated which view he accepted in this matter. Hence we would like to say a few words on this question. The view of Mr, Ameer Ali as given in his book on Muhammadan Law, Volume I, Fourth Edition, at page 227 is as follows :‑
As already stated, no formality is required to be gone through for the purpose of creating a valid wakf. It is enough if the donor declares that he constitutes a property wakf or has constituted it a wakf. That declaration fixes upon the property purported to be dedicated all the charac ter of a legal and building wakf, extinguishes the title of the donor, vesting it in the Almighty (whatever the object to which it is dedicated), and makes it irrevocably inalien able and non‑heritable.
This view was accepted by their Lordships in the case of Bikani Mia v. Shuk Lai Poddar I L R 20 Cal. 116 (F B), where the Court observed as follows :‑
"The only dispute among them is (a) as to when and how it becomes binding and obligatory. Abu Hanifa thought a wakf to be revocable so long as the endower had not obtained the imprimature of the Kazi or 'death came upon him,' when it would become irrevocable. Abu Yusuf and Mohamed held that it was irrevocable binding and obligatory (lazim) from the moment the consecretion was made ; but they differed as to how and when it should become operative. Abu Yusuf ruled that the wakf became binding upon the mere declaration of the dedication. Mohamed thought that it was not irrevocable until the property had been consigned to a mutwalli. With reference to these different views, Tahtawi says, no one has accepted the opinion of the Imam (Abu Hanifa), some few have followed Mohamed, but the universality of lawyers have adopted Abu Yusuf's rule. The Manah the Fath‑ul‑Kadir, etc., all say he Fatwa is with Abu Yusuf. The Alamgiri says that " the Lawyers of Balkh follow Abu Yusuf, and we (meaning the Indian Judges) decree accordingly".
The decisions of different High Courts in India show that they are in favour of the opinion of Abu Yusuf. It will be sufficient to refer to the case of Mst. Rahman v. Mst. Baqridan A I R 1936 Oudh 213 (F B) I L R 11 Luck. 735. In this case the same question, namely, whether under Sunni Law a mere declaration by a wakif was sufficient to complete a wakf, came up before the Court. The Court after discussing the various texts as well as judicial decisions of different High Courts held that mere declaration by a wakif was sufficient to complete a valid wakf and it was not necessary that possession should be delivered to the mutwalli.
Now a reference to the provisions of the wakfnama will not be unprofitable. The wakf as set out in the wakfnama was to make arrangement for the upkeep of the ancestral mosque and contained provisions regarding the inalienability of the properties and usual limitations and restrictions as to the powers of the mutwalli. Directions regarding the manage ment of the wakf were as follows :‑
"I appoint the persons mentioned in the margin as mutwalli (in respect thereof). During my lifetime, I shall control and manage the said properties and shall continue to pay the charges of servants and employees and of repairs, and of lights and the salaries of Imam, Moazzen, etc., and if there be any surplus out of the income (after defraying the expenses) I and my successors, shall enjoy the same".
From the above it is clear that the wakif was to manage the properties during her lifetime and after he the persons named in the wakfnama would act as mutwalli in the order in which their names were given in the wakfnama. The evidence shows that she died about five or six months after the execu tion of the wakfnarna. No evidence has been led that Abjan Bibi never intended to give effect to the wakfnama and that it was executed with some ulterior motive. Therefore, there is nothing to warrant the inference that the wakf was not made in good faith and that the owner had no intention of divesting herself of the ownership of the wakf properties. Some evidence was led to show that the defendant No. 1 Yunus had transferred some of the wakf properties. It is perhaps true that the wakf has been administered by the present mutwalli in a manner not altogether satisfactory. Malfeasance or misfeasance on the part of the mutwalli, however, cannot invalidate a wakf which at its creation was a valid wakf. In the circumstances we hold that the wakif made this wakf in good faith and with real intention of dives ting herself of the ownership of the wakf properties and as such it is a valid wakf.
The third ground is that the first mutwalli appointed being a minor, the wakf is invalid in law. At the outset we may observe that the minor was not appointed as the first mutwalli. As already observed the wakif herself was to manage the wakf properties during her lifetime and the persons named in the wakfnama were to act as mutwalli after her death in the order in which their names appear in the wakfndma. Therefore, the question is whether the appointment of a minor as mutwalli will invalidate the ivakf. Mr. Tyabji in his Muhammadan Law, Third Edition, page 614 states
" The appointment of a minor (or person of unsound mind) as mutwalli will not cause the dedication to fail.
Where the office of mutwalli devolves upon a minor, the Court may appoint another mutwalli to act in his place during his minority".
Mr. Ameer Ali in his book of Muhammadan Law, Volume I, Fourth Edition, at page 446, observes as follows :
" If the wakif appoints a minor as mutwalli, and no adult is associated with him, the Kazi shall appoint some person to do the work until the minor attains majority. If there is an adult associated with the minor, the. Kazi may appoint some person to represent the minor and act jointly with the co‑mutwalli or may empower the adult mutwalli to act for the minor".
From the above it is clear that a minor is entitled to succeed as a mu twalli and his appointment will not invalidate the wakf In this connection reference also may be made to the cases of Kaniz Zohra v.‑ Saiyid Muztaba Husain I L R 1923 Pat. Vol. II p. 819 and Nabi‑un‑nissa Bibi v. Liagat Ali I L R 50 All. 830. The .last case went so far as to say that a wakf other wise valid will not fail for the sole reason that the mutwalli appointed by the wakif is a minor. Thererfore, in our opinion this ground also fails.
The last ground raises the question whether the wakf offends against the doctrine of musha. A reference to the texts relating to this branch of law, and which have also been relied upon in judicial decisions, may be helpful in deciding this question. Ameer Ali in his Muhammadan Law, Volume 1, Fourth Edition, at page 539, says
" A fractional share of a particular property may lawfully he dedicated. And when a house has been made wakf, and a portion of it has been sold to pay the wafik's debts, the remaining portion will continue subject to the dedica tion".
Then at page 762 he observes
" According to the Mashaikh of Khorasan the wakf of musha is valid ; according to Muhammad it is not, and this was adopted by the jurists of Bokhara. But all moderns have decreed according to the rule of Abu Yusuf that it (the wakf of musha) is lawful, and this is authoritative"
Similarly Tyabji in his book of Muhammadan Law, Third Edition, at page 580, says :
"The property dedicated may consist of musha (undivided part of property) notwithstanding that it is divisible. A charge upon property, or a part only of the income of speci fied property may be dedicated ; provided that under Hanafi Law if only a part of any property is dedicated for a Masjid or a tomb, that must be divided off otherwise the dedication is not valid".
Mr. Wilson in his book of Anglo‑Muhammadan Law at page 362 has stated the same view as Mr. Tyabji and Mr. Ameer Ali. No doubt from the passages quoted above it appears that the law relating to the wakf of musha was not the same among all the schools of Muslim Law. According to Muhammad the wakf of musha was not valid and according to Abu Yusuf it was. Modern jurists have, however, adopted the ruling of Abu Yusuf, which they consider to be more in consonance with rational dieas. Judicial decisions have also served to break the rigidity in some measure by interpreting it in a broad and liberal spirit. In this connection a reference may be made to the case of Sheikh Muhammad Mumtaz Ahmal v. Zubaida Jan 16 I A 205, where their Lordships of the Privy. Council observed at page 215 as follows : "The doctrine relating to the invalidity ‑ of gifts of musha is wholly unadapted to a progressive state of society, and ought to be. confined within the strictest rules". The above observation was quoted with approval by their Lord ships of the Privy Council in the case of Ibrahim Golam Arif v. Saiboo I L R 35.Cal. 1. A similar question, namely, whether a dedication of an undivided property for the upkeep of a mosque was valid or not arose in the case of Md. Ayub Ali v. Amir Khan 43 C W N 118, and Mukherjee, J. after referring to the translation of the texts and to the passages from the books of Amir Ali and Wilson observed as follows :‑
"From this it is clear that when an undivided piece of land is dedicated to be used as cemetery or a place to build a mosque on, the dedication for construction and endowment of such a mosque or cemetery is invalid. But when a mosque or a tomb already exists on different parcel of land, if an undivided share of another property is dedicated for the upkeep of such a mosque, the dedication is not hit by the exception mentioned aforesaid. The doctrine of musha has always been held to be unadapted to a progressive state of society, and an exception based on such doctrine must be kept within the strictest limits".
In view of the texts and the cases referred to above it is impossible to hold any longer that the wakf of musha for thell upkeep of a mosque is invalid and hence this ground also fails. We, accordingly, hold that Abjan Bibi by a registered wakf nama, dated 7th August, 1902, created a valid wakf in respect of her properties. No other point has been urged in this appeal. The plaintiff's share to the extent of 5 annas 11 2/3 pies in the suit properties excluding the wakf properties has not been challenged before us by the learned Advocate for the appellants.
In the result we affirm the decree passed by the learned Subordinate judge with this modification : (1) that the pro perties covered by the registered wakfnama of Abjan Bibi, dated the 7th August, 1902, will be excluded from partition (2) that each party will bear his own costs of the suit but the appellants will be entitled to get costs of this appeal. The Commissioner while effecting partition will find out the pro perties that are covered by the wakfnama and exclude the same from the scheme of partition.
---‑I respectfully agree with the views of my learned brother; but before we part with this case I should like to mention that the persons who are responsible for the preparation of paper books must see that the paper books are prepared properly and before they are filed they are thoroughly revised. In many of the cases that come up before us for hearing the decision depends upon the interpretation of a certain document. In this particular case the decision of this Court is based on the interpretation of the wakfnama, Exh. C, in the case. It is unfortunate that this document has not been properly printed in the paper book. It is stated in the document that certain persons are nominated as mutwallis but their names do not appear in the paper book. Recital of their names in the document would have been an answer to the argument that the learned Advocate for the appellants could take advantage of in his submission for the omission of the word 'not'. I may further point out that this was a suit for partition and much of the arguments were based on the genealogy that was given in the paper book; but the genea logy itself was not correctly made.
If these things were properly done much of the time and labour of the Advocates concerned and also of the judges of this Court would have been saved.
This is a case in which we are concerned with Hanafi School of Muslim Law; and I can only add to what has been said by my learned brother that there is nothing either in the texts or in the judicial decisions that a minor cannot in herit the office of a mutwalli.
My learned brother has cited various texts and decided cases on ‑the question of musha, but I shall only refer to Hamilton on Hedaya, 2nd Edition, at p. 233, where it has been stated that according to the moderns there could be a wakf of musha ; but the only exception would be a wakf created for the purpose of construction of a mosque or a burial ground. This is the view which has been accepted by the learned text‑writer Abu Yusuf whose authority is prevalent in the modern times. This learned text‑writer has said that there could not be a wakf for the construction of a mosque in respect of an undivided property. We respectfully agree with the view of the learned text‑writer ; but that is not the question in this case. The case before us is a case in which the mosque has already been in existence since the time of the great grand father of Abjan Bibi ; and the provisions that were made in the wakf of Abjan Bibi, dated the 7th August, 1902, were for the upkeep and management of that mosque. Therefore, the text of Abu Yusuf does not stand in the way of deciding that the wakf in this particular case is a valid one., It appears to me that the learned Subordinate judge was very much misled by what has been said in section 146‑D of Mulla's Muhammadan Law, Tenth Edition. As my learned brother has rightly pointed out by citing texts and decided cases, the exception mentioned by Abu Yusuf does not stand in the way of our holding that in this particular case the wakf is a valid wakf.
A. H. Decree armed with modification.
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