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First Appeal No. 24 of 1952 decided on 15th December 1955, from the preliminary decree of the Court of Abdus Samad Khan, Senior Civil Judge, Rawalpindi, dated the 29th day of Noveber 1951.
S. 3 Wafk valid even if entirely for maintenance of wakif and his family, provided, ultimate benefit reserved for poor etc. Provision in wakf for concurrent charities though no express provision for ultimate benefit to poor etc. Ultimate object assumed to be charitable-Doctrine of cy pres.
Section 3 of the Mussalman Wakf Validating Act (VI of 1913) means that a Hanafi Muslim can create a wakf entirely for his own maintenance and support and for the maintenance and support of his family if only the ultimate benefit is reserved for the poor, etc. the reservation need not be express.
According to section 3 the maintenance of family is one of the purposes "recognised by the Mussalman law as religious, pious or charitable".
It is therefore not proper to ask whether the dominant intention was to preserve the family or the estate, because the law allows a wakf expressly for that purpose "among other purposes". What is proper to ask is whether there is an ultimate benefit to the poor or to other charitable objects. That is the only condition imposed on a family wakf.
Where objects concurrently stated included provision for scholarships for indigent Muslims and for drinking water on the roadside, apart from maintenance of the wakf and his family, it was held that the ultimate benefit though not expressly reserved for a charitable purpose, was deducible impliedly from the concurrent objects by the application of the doctrine of cy pres.
The Mussalman Wakf Validating Act (VI of 1913) is a concession to Muslim thought and no wakf need be avoided which indicates charity in the last resort.
Ruqia Begam v. Suraj Mal A I R 1936 All. 404 and Muhammad Azam Khan v. Hamid Shah A I R 1947 All. 137 rel.
Irfan Ali v. Bhagwant Kishore A I R 1929 All. 180, Masuda Khatun v. Muhammad Ebrahim A I R 1932 Cal. 93, Agha Ali Khan v. Altaf Hasan Khan (1892) 14 All. 429, Sheikh Ramzan v. Mst. Rahmani I L R (1932) 7 Luch. 300, Baqaullah Khan v. Ghulam Siddique Khan A I R 1935 All. 616, and Muhammad Ahsanullah Chowdhry v. Amarchand Kundu (1893) 17 1 A 28 ref.
Abdul Mabud Khan v. T(awazish Ali Khan A I R 1925 Oudh 301 commented.
(b) Limitation Act (IX of 1908), First Schd., Art. 91-- Does not apply to void instruments.
Art. 91 of the Limitation Act applies only in the case of a voidable instrument, if the instrument is void, it does not apply.
Ghulam Mohy-ud-Din and Inayat Ullah Khan for Appellants.
Sh. Bashir Ahmad and Amir Ahmad for Respondents.
Thus first appeal relates to the property of Malik Ghulam Haider Khan, a retired Tehsildar, consisting of houses, shops and lands in Rawalpindi City, estimated by himself to be worth about Rs. 2,25,000. On the 26th of September 1931, he executed what he called a will but what he desired to be a wakf-alal-aulad under the Mussalman Wakf validating Act, (VI of 1913). He doed pm the 27th of September 1937.
It appears that in accordance with the wakf deed Exh. D. 1 the property in question was managed by his son Malik Ata Ullah, defendant No. 1, who is himself a retired Tahsildar, and who paid allowances to his father's descendants as prescribed in the deed until three of them, led by Malik Muhammad Akram, filed a suit for possession by partition on the 14th of May 1945. ' Although the other descendants of Malik Ghulam Haider were impleaded as defendants, their interests are identical with those of the plaintiffs, and the only contesting defendants are Malik Ata Ullah and his wife Mst. Ghulam Fatima, defendant No. 17.
The plaint merely stated that Malik Ata Ullah, defendant No. 1, was in possession of the property on behalf of the plaintiffs and the remaining defendants, that he had realized rents and profits but had not rendered accounts and prayed that a decree for possession by partition may be passed and Malik Ata Ullah ordered to render accounts and make such payments as were found due from him.
The main contention of Malik Ata Ullah in his written statement was that his father had created a wakf-alal-aulad by the document Exh. D. 1. under which he had been appointed mutawalli. The heirs of Malik Ghulam Haider Khan had consented to the will, either expressly in the form of appending their signatures or impliedly by receiving monthly allowances from him, and were, therefore, estopped by their conduct and acquiescence. Further, a part of the property had been gifted to his wife, Mst. Ghulam Fatima, and another part to Ma. Shahzada Begum, plaintiff No. 3, and these, in any case, should be excluded from partition. It was also contended that if the deed in question was not held to be a valid wakf deed, then it was a will, and, in any case, a family arrangement. Further, the suit was barred by limitation.
In replication the plaintiffs stated that (1) the alleged will of Malik Ghulam Haider Khan was a dead letter and was not in accordance with law; (2) he vas not competent to execute the will and he did not, in fact, execute it; (3) the fact that Malik Ata Ullah has been partially distributing the proceeds among the heirs of Malik Ghulam Haider Khan made no difference to the plaintiffs' right to insist on partition; and (4) Malik Muhammad Aslam Khan, deceased son of Malik Ghulam Haider Khan, had not given consent to the will.
The following issues were struck :-
(1) Did the late Malik Ghulam Haider Khan execute the document in dispute while he was of sound disposing mind
(2) If the first issue is proved, is the document void and of no effect
(3) If the document is not found to be void, was it not necessary for the plaintiffs to attack its validity in the plaint
(4) What is the effect of attacking this document in the replication filed by the plaintiffs and does it cure the defect if issue No. 3 is decided against the plaintiffs
(5) If the document is taken to have been sufficiently challenged in the pleadings, was it so done within the period of limitation prescribed therefor If not, what is its effect
(6) Was the late Malik Ghulam Haider governed by agricultural custom If so, did he execute this document as a "will" under such custom
(7) If the document is proved to be void, is it still valid to the extent of property allowed to Mst. Ghulam Fatima and how
(8) Were all the heirs of the deceased willing when the document in dispute was executed and consented to its execution If so, how does it affect the validity of the document
(9) Have the plaintiffs, by their acts or conduct, debarred themselves from attacking the document in dispute or from maintaining the suit
(10) Does the will, made by Malik Ghulam Haidet deceased, amount to a valid family arrangement
The findings were as follows :-
(1) The document was properly executed. (This matter is no longer in question.)
(2) It is void because it is neither a wakf deed nor a will.
(3) It was not necessary for the plaintiffs to attack its validity in the plaint.
(4) It could be validly challenged in the replication.
(5) The suit was within the period of limitation.
(6) Malik Ghulam Haider Khan was not governed by custom. (This issue is no longer in dispute.)
(7) The document is not valid even in respect of the gift to Mst. Ghulam Fatima.
(8) Although the document purports to be signed by all the sons of Malik Ghulam Haider Khan except Muhammad Akr'am, the signature of Muhammad Aslam deceased had not been proved unquestionably, and as regards the rest, the signatures did not purport to show that the docu ment was executed with their consent.
(9) There was no estoppel.
(10) There was no family arrangement which could bind the plaintiffs.
The suit was, therefore, decreed, the decree being pre liminary. A commissioner was appointed to partition the properties and to take accounts from Malik Ata Ullah defendant.
Malik Ata Ullah has come in appeal and only three points were argued before us on his behalf: firstly, that the plaintiffs should have asked for the cancellation of the document Exh. D. 1, or for a declaration that it had no effect (issues Nos. 3 and 4); secondly, that Exh. D. 1 made a valid wakf ; and thirdly, that the suit was time-barred.
It is necessary to reproduce substantial parts of the document in question in order to see whether it constitutes a valid wakf under the Mussalman Wakf Validating Act, 1913. In para. 1 Malik Ghulam Haider Khan states that he is a Hanafi Musalman of 75 years and that as the death of his eldest son, Malik Ahmad Khan, Extra Assistant Commis sioner, had dashed his hopes to the ground, he expected death every moment, and, therefore, thought it expedient to execute a will in obedience to God, so that his property should be managed properly after his death. He was quite certain of its destruction if he made no such arrangement. He proposed to continue in possession of it as mutawalli until his death, and this will was to be treated as wakf-alai-aulad under Act VI of 1913. Then he gave details of the property and the pedigree-table of his children and grandchildren.
In para. 3 he states that, with some exceptions, the conduct of his sons in respect of himself had for a long time been "not worth speaking of". A record of their misdeeds had been kept by him in a sealed envelope which was to be treated after his death as an appendix to this will. They deserved to be disinherited, but with the forgiveness of a Muslim, he proposed to make allowances for them, which would be paid to them after his death. He reiterated that his property would be treated as wakf-alai-aulad under Act VI of 1913, and added that upon his death his son Malik Ata Ullah would enter into possession of the estate in the same capacity as he, the executant, had entered into and enjoyed it.
" Para. 4.-It shall be my first duty, as also that of Malik Ata Ullah Khan, (1) to add to the present estate and keep it in proper repair, (2) to look after the chap and the lands, particularly to arrange for the maintenance of the graveyard, '(3) to award, upon my death, two or three scholarships up to Rs. 150 per annum to promising but needy. Awan or Pathan children for industrial or ordinary education. (4) to pay allowances to my heirs as fixed hereafter, and (5) to appropriate to himself and to his children's use whatever balance is left."
"Para. 5.-If Malik Ata Ullah Khan finds it uncomfort able to manage the estate, he should, in consultation with certain friends, entrust it to his brother Malik Muhammad Aslam Khan, or if he also evades the trust, then give it over to some other suitable person. Whatever allowance has been fixed for each heir, that shall be paid to him or his heirs permanently until the estate lasts, but the allowance may be increased or decreased according as the income increases or decreases. Malik Ata Ullah Khan shall have power, in consultation with Malik Muhammad Aslam Khan, to make a will for the future. The object is that so long as the property and its income last, it shall mad continue to benefit my children."
The paragraph then gives details of the allowances payable to his descendants. They range from Rs. 10 to Rs. 50 p.m. The total money paid in allowances is Rs. 4,440 per annum. Then there are three other items of expenditure, (be), (jim) and (dal)
| Rs. (be) to be spent in preserving the property ...250-0-0
(jim) expenditure on the shah, the lands, 450-0-0 the graveyard and arrangement for the supply of water to the public on the roadside . (dal) unascertained expenditure such as is incurred on occasions of marriage or mourning, scholarships, etc., as proposed by my heir total expenditure ... 600-0-0 ___________ 5,740-0-0
|
Para. 6 gives a list of income from property in the shape of rent. This amounts to Rs. 581 per month or Rs. 6,972 per annum. After deducting the expenditure detailed in para. 5, a balance of Rs. 1,232 per annum is left for the use of Malik Ata Ullah Khan, and he has been advised to help certain poor relatives in his discretion.
In para. 8 it is stated, among other things, that the executant has a plan to arrange for the supply of drinking water on the road-side adjacent to his garden, but that if it is not completed within his lifetime, it shall be the duty of his successor to follow his wishes and earn goodwill here and reward hereafter. It is further stated that after the incurring of expenditure as detailed in para. 5, if anything remains, and with economy and good management there is certain to be a saving, then the executant's successor shall spend about Rs. 150 or possibly more in scholarships, or in any other suitable manner in the name of God (fi sabildlah) and earn a reward. This ought to be regarded as amplification of the instructions in para. 4 and clause (dal) of para. 5 in respect of the award of scholarships.
In para. 11 there is a warning that if his heirs do not agree to what he has prescribed for them "and evade the management of the property as instructed", there would be no remedy left for him except to transfer the entire property to God, and as the propagation of Islam is the duty of every Muslim and this duty is being discharged best by the Jama'at-e- Ahmadiyya of Lahore his property would be transferred to that Jama'at. The document ends with paragraph 12, reiterating that this is a wakf-alai-aulad fi sabilillah under Act VI of 1913.
Now, there is no doubt that there is a definite provision, to take effect after his death, in respect of scholarships up to a limit of Rs. 150, or perhaps more, for indigent boys, and this is undoubtedly a charitable object. There is also provision for the supply of drinking water on the roadside. At the same time there is no express provision that, in the event of his line becoming extinct, the ultimate benefit will go to the poor or to any other pious, religious or charitable object. In fact, the extinction of the line is not at all in manifest con templation and the expressed intention is to preserve the estate for the heirs.
Now, section 3 of the Mussalman Wakf Validating Act, 1913, makes it lawful for any Muslim to create a wakf which in all other respects is in accordance with the provisions of Mussalman law, for the following among other purposes :-
(a) for the maintenance and support wholly or partially of his family, children or descendants, and
(b) where the person creating a wakf is a Hanafi Mussalman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated
Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character.
It means that a Hanafi Muslim can create a wakf entirely for his own maintenance and support and for the maintenance and support of his family if only the ultimate benefit is reserved for the poor, etc., and the reservation need not be express. If, therefore, Malik Ghulam Haider Khan had stated in the deed that the entire income of the estate was to be spent on his own maintenance and on that of his children, but had merely added that upon the extinction of his line the income will be devoted by the Court or some other competent, body to scholarships for the poor, it would have been a valid wakf within the meaning of section 3. Wakf is defined in section 2 as a permanent dedication for any purpose recognised by the Mussalman law as religious, pious or charitable, and the ultimate purpose in the contingency which I have visualised will be undoubtedly charitable. This will be an express reservation of the ultimate benefit. What will be an implied benefit is not so clear, but it must certainly be much less than what is expressed in words. If the effect of the disposition in the event of the extinction of the line is to transfer the property to charitable objects, the benefit will be implied. What Malik Ghulam Haider Khan has done is to create a concurrent benefit in the shape of scholarships and another benefit in the shape of arrangement for drinking water, and, so far as the terms of the document go, undoubtedly the benefit is intended to be perpetual.
Whether the ultimate benefit to the poor is implied in a given set of circumstances will always be a matter of opinion, but it must clearly be understood that when the Act stated in section 3 that a wakf can be created "for the following among other purposes", namely, "for the maintenance or support wholly or partially of his family" etc.-it was assumed that the maintenance of family is one of the purposes B "recognised by the Mussalman law as religious, pious or charitable". (Definition in section 2). Consequently, the moment a wakf-alai-aulad is created, the appropriator can legitimately feel that he has performed a charitable act, and most people have that feeling when they make a wakf in favour of their family. And reasonably so, because thereby they deprive themselves of proprietorship, which thereafter vests in God. When, therefore, such a wakf comes into being, it is not proper to ask whether the dominant intention was to preserve the family or the estate, because the law allows him to make a wakf expressly for that purpose "among C other purposes '. What is proper to ask is whether there is an ultimate benefit to the poor or to other charitable objects. That is the only condition imposed on a family wakf. as stated in the proviso to section 3.
This is not the same thing as saying that the use of the word wakf implies the reservation of the ultimate benefit to the poor, which was the objection taken to the view of Niamatullah, J. in Irfan Ali v. Bhagwant Kishore (A I R 1929 All. 180) by Mukerji and Bennet, JJ. in 52 All. 748 (the same case, which came to them on a difference of opinion) and by Mukerji and Guha, JJ. in Masuda Khatun v. Muhammad Ebrahim (A I,R 1932 Cal. 93). In the last-mentioned case, it was observed that the proviso to section 3 would be rendered nugatory if the use of the word wakf were held to imply ultimate benefit to a charitable object: the word has been expressly used in the Act, and yet the proviso has been added to it. This is quite true, but the point I wish to make out is that the Act intends that having secured the interest of his family, the appropriator should also provide for the poor or for other charities, though only in the ultimate resort. The Act does not thereby mean that provision for the family is not a charitable purpose. In fact, it clearly states that this is one " among other purposes ".
I have said that by creating a wakf, the appropriator deprives himself of ownership, which thereafter vests in God. This observation is based on Baillie's Hanifeea Law, page 559, quoted at page 448 of the judgment of Mahmud, J. in Agha Ali Khan v. Altaf Hasan Khan ((1892) 14 All. 429). Baillie quotes thus from Fatawa-i-Alamgiri : " The pillars of wakf are special words declaratory of the appropriation, such as I have given this my land, or bequeathed it as an appropriated or special sudakah or charity. Its cause or motive is a 'seeking for nearness'. And its legal effect, according to the two disciples, an abatement of the appropriator's right of property in the thing appropriated in favour of Almighty God', and according to Abu Haneefa, a detaining of it in the ownership of the appropriator, but without the power of alienation, and a bestowing of its produce in charity.' "
Mahmood J. observed that it was a general rule of the interpretation of the Sunni Law that when there is a difference of opinion between Imam Abu Haneefa and his two disciples, Qazi Abu Yusuf and Imam Muhammad, the opinion of the majority prevails. In other words, the accepted Hanafi opinion about a wakf is that the appropriator's right o property abates in favour of God.
With this opinion firmly in mind, let us examine the incidents of a wakf which concurrently reserves a part of the income, howsoever small, for the poor or for a charitable purpose. Such was the case in Abdul Mabud Khan v. Nawazish Ali Khan (A I R 1925 Oudh 301) where the wakf had appropriated the usufruct to the author's own maintenance and that of distant collaterals, (he himself being childless), and to certain separate religious and charitable objects. It was there held that there was no reservation to the poor, because the special law of the appropriator by which apparently was meant the Muslim law-did not imply any final reservation in the event of the failure of the heirs of the beneficiaries. It was observed that while according to Abu Haneefa and Muhammad the appropriations fail altogether when their objects finally fail, according to Abu Yusuf there was an implied reservation to the poor. 'And since the opinion of the majority prevails where-these three jurists differ, if the line of the appropriator fails, the object of the collateral charity in favour of the poor must also fail.
It is difficult to reconcile this view with the logical consequence of the majority opinion that the legal effect of the creation of a wakf is the abatement of the appropriator's right of property in favour of Almighty God. If the property vests in God, it accomplishes the purposes of God, and the failure of the appropriator's line does not cause the purposes of God to fail. At least, the portion appropriated to the poor concurrently with the creation of the wakf remains vested in God. Therefore, if the definition of a wagf as understood by the majority of the three jurists is accepted, it follows as a corollary that the view of Abu Yusuf that there was an implied reservation to the poor must be accepted: The purposes of God cannot be made subservient to the purposes of man.
In effect, even Masuda Khatun v. Muhammad Ibrahim (A I R 1932 Cal. 93) followed this principle. In that case, the net income was Rs. 2,135, and there were three charges on it. The first was of insurance premia, amounting to Rs. 429. The second consisted of religious and charitable wakfs on which Rs. 394 were to be expended. The third consisted of household expenses and allowances, equal to Rs. 1,284. The allowances were for life, and thereafter the amount was to be devoted to any of the remaining items, including charitable objects. If there was a saving in the third item, that was to be spent on pious acts or on the walls round the tombs. It was observed that the ultimate benefit went to charity because after the policies had matured and the allowance-holders died, there would hardly be left any non-religious or non -charitable object. It must be noticed that there was no express provision that the income reserved to allowance- holders was to go alone to charity after their death. Nevertheless, it was believed that on the failure of the allowance-holders the ultimate purpose left will be charity.
In Sheikh Rahman v. Mst. Rahmani (I L R (1932) 7 Luck. 300) Wazir Hasan C. J. and Srivastava, J. had to deal with more or less similar circumstances. The appropriator said: "My intention is that my children shall continue to be maintained by the said properties 'and charitable objects shall continue to be performed permanently and in perpetuity so that they may benefit my soul." Out of a net profit of Rs. 475, Rs. 50 were to be spent on the upkeep of a mosque and Rs. 125 in aid of an Islamia school and a monastery. It was held that the definition of the term wakf excluded the view that the mere use of it is enough to create a dedication to the poor as ultimate beneficiaries, but that, in the present case the ultimate object was clearly stated to be religious and charitable and perpetual, so that the proviso to section 3 was satisfied. Nothing was said as to what would happen if the line of the appropriator failed, and the invocation of benefit to his soul was supposed to indicate a religious purpose.
In Baqaullah Khan v. Ghulam Siddique Khan, (A I R 1935 All. 616) the appropriator was anxious to make a wakf of my entire property fi sabilillah for my own maintenance and for the maintenance of my wife and daughter, and also to receive blessings after death." Only one-sixteenth was to be spent "in the way of God" for the expenses of a mosque and for the support of the poor, orphans etc. It was held that this was a dedication in perpetuity and in the way of God, that the provision for the appointment of a mutawalli in the event of the extinction of the line showed that the trust was intended to be for ever, that the provision of one-sixteenth for the poor had also the same intention and that as he contemplated final extinction of the line, he must be deemed to contemplate the application of the remaining fifteen parts to charity, as it was not only for himself that he made the wakf but also in the way of God.
But the most authoritative support for the view which I am enunciating is to be found in Ruqia Begam v. Surai Mal (A I R 1936 All. 404) decided by Sulaiman, C. J. and Harries J On the facts the docu ment was not treated to be a wakf deed. It purported to create "in accordance with Act VI of 1913." a wakf-alai-aulad, providing that no stranger should ever be a mutawalli. There was no suggestion that it was a wakf fi sabilillah or for the benefit of the poor etc., and no provision was made for any charitable object. It was held that if only there had been a reference to a charitable, religious or pious object, the mention of Act VI of 1913 would have been "very important and significant", but not as it was. In respect of Irfan Ali's case (52 All. 748) the learned Chief Justice observed: "It does not seem to have been pressed before the Bench that inasmuch as there was an express provision that the balance left out of the one-third income of the property would be employed on good acts recognised as such by the Muhammadan Law (as-for instance fatiha, offerings for elders, education and marriage of children etc.)', then on the analogy of the cy pres doctrine, the remaining two-thirds of the income would be for similar purposes and charities in case the line of the descendants became extinct." Again, "where the wakif has indicated his intention that his object is to benefit his family and also religious, pious or charitable purposes, it can be implied that there is an ultimate reservation for such purposes, particularly so when he has provided that a part of the income should be applied to such purposes during his own lifetime. If one object, namely, the maintenance of his descendants fails, there is no reason why the other object should also fail and no reason whatsoever why the whole income should not be devoted to the remaining object as indicated."
To the same effect is Muhammad Azam Khan v. Hamid Shah (A I R 1947 All. 137) where the wakf was in favour of nephews whose father had been drowned. The wakif's son contested it unsuccessfully. Rupees 120 had been reserved for the Ashra-i-Muharram and for feeding the poor during the month of Ramzan. The words used were:
It was held that this justified an inference that the ultimate benefit was impliedly reserved for charity. The opinion of Suleman, C. J that if the line becomes extinct, the doctrine of cy pres should apply, was quoted with approval.
I say with great respect that Irfan Ali v. Bhagwant Kishore and other cases that followed it should be regarded as presenting a narrow outlook on Muslim wakfs, an outlook which may sometimes defeat the increasing purpose of the Act, which was to uphold wakfs created in favour of the family and children, by removing doubts in respect of them. These doubts had been created by the judgment of the Privy Council in Muhammad Ahsanullah Chowdhry v. Amarchand Kundu ((1893) 17 I A 28), their Lordships having held that a wakf by which property is not substantially dedicated to charity was illusory and void. Section 4 of the Act, therefore, expressly stated that "no such wakf shall be deemed to be invalid merely because the benefit reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of, the family" etc. The Act was clearly a concession to Muslim thought, and it is perhaps not mere coincidence that since its enforcement no Muslim judge-at least in the cases cited before us-has avoided a wakf which indicated charity in the 1 last resort.
It has been said that the proviso to section 3 becomes futile if the ultimate object is to be deemed to be charitable in all cases. This is not so. Firstly, the ultimate object is deduced only in certain cases by the application of the doctrine of cy pres, and that doctrine applies only when one object is concurrently charitable. Thus nothing would be implied if there is no mention of any charity, as was the case before Sulaiman, C. J. Secondly, cases can be visualised where the ultimate object is expressly non-charitable; as for instance, where it is provided that in the event of the failure of the line, the income will be devoted to the making of a public park, an object laudable in itself, as our times go, but not charitable in the sense known to Muslim law; or even to the building of a cinema where cultural films are exhibited a still less charitable purpose. One could go down further in the scale of moral values.
We, therefore, hold that Malik Ghulam Haider created a proper wakf within the meaning of the Act. This finding will dispose of the entire suit, but we may observe on the question of limitation that Art 91 of the Limitation Act will apply only in the case of a voidable instrument, and that if the instrument is void, it will not apply. If, therefore, we had held that the wakf deed was invalid, the suit would have been within limitation. In the result, the appeal is accepted and the suit dismissed, with costs of- both courts.
A. H. Appeal accepted.
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