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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 100 of 155)
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In quoting this text I have quoted the translation furnished by Pandit
Sundar Lai, but before dealing with the text I wish to point out a serious
error in it, which is more important than a merely verbal criticism. The text
in the opening part in enumerating various kinds of grants which are intend-
ed to take effect after death mentions as an illustration wills for waqfs.

The original Arabic words are *"**}* ^tf'al "-k-* which in the learned Pan-

dit's translation is rendered in the following words : " In the case of a
waqf made by a will." The literal and grammatical translation should be
injbhe following words : " For instance, if he make a bequest for a waqf,"

lU j j lia



*



^ ^\ Jt- j



UU



668



11] AGHA ALI KHAU V. ALTAF HASAN KHAN '14 All. 472

which, taken with the context, means that the deceased has given a 1892
testamentary direction to bis legal representatives to appropriate a certain MAY 9.
portion of his property towards charitable endowments according to the
terms of tbe bequest. It does not mean that the execution of a will can
ipso facto create a waqf in prcesenti. In other words, the text properly BENCH.
understood does not lay down any rule as to the constitution and requisites -
of a waqf, but lays down rules as to the administration 'of the estate of a **
deceased testator. (F.B.) =

[471] The importance of the distinction which I have thus drawn 12 A '' M|
will become more clear as I deal with tbe other texts cited by Pandit * '
Sundar Lai himself on behalf of the plaintiff. One of these is the following
from the Tahrir-ul-ahkam of Allama Hilli :

" If he had said : ' Make yQ&waqf after my death in such a fashion,'

that beomes a ivasiyat-bil-waqf, J3jJU *>*>> (testament for & waqf).

Ib must be taken out of one-third. And if be had said : ' That is waqf
after my death,' then in its being wasiyat-bil-waqf (which is) lawful or
waqf contingent upon death (which is) void there is nazar."*

Both Pandit Sundar Lai for tbe plaintiff and Mr. Karafnat Husain
for the defendants agree in the accuracy of this translation of the text,
and I also approve of it as a good literal translation. They are, however,
not agreed as to the meaning of the last word in the text, namely nazar.
j&V Pandit Sundar Lai maintains that the word is a technical word
indicating that tbe point is an unsettled one. I may say at once that the
word literally means cogitation, and it does imply that the rule to which
it refers is not a settled matter and requires consideration.

Before proceeding further I may quote another text relied on by Pandit
Sundar Lai and Mr. Karamat Husain on behalf of their respective clients,
but they are not agreed as to the exact meaning and import of the text.
I am therefore responsible for the following translation, which I will make
as close and literal as linguistic exigencies will allow :

" And if he said : It is waqf after may death - this is susceptible
both of being void, as it is suspension (of the waqf), and of being predicated
as convertible inso a wasiyat-bil-iuaqf, because it (the sentence) is more
expressive than his saying : ' Make it a waqf after my death.' Its (the
phrase's) use in making wills [472] is frequent, and this is the more
correct, because ib is (means) disposal of his property to take effect after
death, which is fie meaning of wasiyat (testamentary disposition)." Izah
of Allama Hilli, p. 355.*

In order to explain the controversy between the parties based upon
these two texts i is necessary to state thab there are two Arabic phrases
which must be distinctly borne in mind as they occur in the texts. These
phrases are _ __



89



669



1* All. 573 INDIAN DECISIONS, NEW SERIES [Yfll.

(1) Qifu baada mauti kaza ( '** JV **i V') which means" Make

MAY 9.

ye a waqf after my death, thus."

TTrTT T / \

(2) Hawa wagfun baada mauti ( ?.* $ .?* ,a> ) which means It

"RWWPTT vS J ? } /

XJJiJXL'il. it, i .-I

is waqf after my death.

11 A. 429- Now the Shia law attaches stringent importance to technical formali-

(F.B.)=> ties and expressions employed. So far as the first of these phrases is

12 &.W.N. concerned, it is admitted on all hands that it amounts to a testamentary

(1892) 187. direction to the heirs to make a waqf, that is, to appropriate property to the

purposes and in the manner indicated by the testator. Such tetamentary

direction is technically called wasiyat-bil-waqf ^-*ytj o^?> )> that is,

bequest for the purpose of a waqf, which falls under the same category as
other similar dispositions such as those described in the text from the
Mabsut which I have already quoted ; and it cannot be doubted t^hat
under the Shia law (as, indeed, also under the Sunni law) such legacies
are to be carried out to the extent of one-third of the estate of the
deceased, subject to such rules and restrictions as govern the administra-
tion of the estate of a deceased person, by his legal representatives, with
reference to his debts and other legal liabilities of his estate. Indeed,
there is no context between the parties as to this point, and I need not
therefore dwell upon it any further.

[473] The real controversy relates to the second phrase, viz.: " Is it
wagf after my death " ( y>* *i J*> > ) and much in the texts which
have been cited is devoted to discussing the exact signification, import and
effect when it is employed. Now the word waqf ( J> ) being a noun,
does not in itself import either any tense or direction such as the impera-
tive ( IjJiJ ) which occurs in the first phrase. This being so, doubts have
arisen as to whether the phrase in which it occurs when used has the
signification of being a wasiyat-bil-waqf ( *3*y*2 ***j ) that is, a testa-
mentary direction to heirs for waqf), in which case it would be valid, of
whether it signifies a waqf-bil-wasiyat (ovyi? ***.}) that is a waqf

suspended or contingent upon the death of the wagf, which being a
future event would render the wagf void under the Shia law.

The manner in which the question of preference between these two
alternative interpretations is discussed by the Shia authorities is well illus-
trated by a text of the Jami-ul-Maqasid upon which both the parties have
relied. The text in the original Arabic runs as follows : *

i'ij#> f&K J \) <5*'*3 *Jl) ^JUsJiJ*"*! fjj;* .dj cij^ > JlS^Jj *

t t ^1;J Wl <^V '*kS ^^*'lW^*tfJ| |ij> OtjJ^I AJ| w^il i_S.yO &*..



UU v- ^a' tyl-iflj ^ l t j

uJj jJJj cs'J^i OjJlJ^-a^ i^yo Jli
^'!<y ^ V*- o-*K IJ1 *> Ui jj&Jljyil it I,
U SJ5),> V) ^iUsJl^i**, j& uJi 3 Uy! I^Ajf v jyj

670



YII] AGHA ALI KHAN V. ALTAP HASAN KHAN 14 All. 475



The parties have put in their translations of this text, but they 1892

are not agreed as to the interpretation and import of some words and MAY 9.

phrases, and I have therefore compared the two translations and the -

original and am responsible for the accuracy of the following translation: FULL

" And if he said : ' it is waqf after my death ' this is susceptible BENCH.
both of being void, as ife is suspention of the ^vaqf, and of being predicated

as convertible into a wasiyat-bil-waqf. There can certainly be no doubt ** * * z

that by such a declaration (*^) predication is not intended. It then 2 i W N

remains that by the declaration making an offer was intended; and this Mgg2) 187,
in itself indeed indicates nothing other than conformity with offer for a
waqf after death by means of the declaration (&?>): just mentioned above

and this matter requires nullity by reason of its disturbing the rule relating

to the declaration (&%&) being a complete cause for the constitution Of

(J>o) waqf. But the occurrence of death enters into the matter as one of

its constituent elements. This is exactly what is meant by ta'lalik, J.v*>
(suspension). Therefore it is void because contractual words are not
regarded as correct unless they themselves be the perfect cause of the
creation of what is intended by them ; otherwise the desired effect will
not follow and this is what is meant by nullity. There is no indication in
it (the declaration, **>> used) of a wasiyat except by putting an affected
construction which the words do not warrant or indicate, and there is
no authority for constraining it to mean : ' I intend it to be made wagf
after my death' ; to put such a construction is a pure deviation from the
right path f^^n-uJ*^ 5 ; and to pass legal orders upon words of this kind
which do not [475] indicate the intention (of the speaker) is a matter
extremely farfetched &* ? o).

" It has already been stated that if one says to another : ' Take
possession of the debt due to me by such a one for yourself, is is not



J!JU|



|JU ji



&' Sl> JJ



* ( f V 3 | 1

671



14 All, $76 INDIAN DECISIONS, NEW SERIES [Yol.

valid, although the person ordered has a debt due to him by the person
MAYfl. who orders ; and it has been stated on agency that if be says : 'Purchase
" . such a thing forme by thy own goods,' it is -not valid, notwithstanding
ULL that the intention is known, and to put such a construction is possible.

' " The contention that such words are frequently used in wills and

14 A. 429=a~ that validity is the legal presumption and that it cannot be realized

(F.B.)=a without transferred meaning is futile (doctrine), because of the prohibition

12 A.W.N. of the use so claimed and the necessity of its being ineffective until

(1892) 187, justified by the real or conventional meaning of the words employed.

The presumption (oJ*^^ of validity of the above-mentioned sigha

(**>) formula, does not require that it should be rendered as washiya
unless something is added thereto indicating the same.

" It is stated in the Hamashi of our Sheikh the Shahid that this is
the case when the intention is not known, and if knowa then there is no
controversy. This requires cogitation, because aiqcQ intention has no effect
unless the word's indicating it really or conventionally are found : and that
is required by cogitation and by what was stated in similar cases points to
nullity (of the transaction). Of course, if the use of the phrase in the sense
of wasiyat would have been common and well known it would not have
been out of place to regard it as a valid wasiyat." . {Jami-ul-Maqasid,
pp. 516 and 517.)

Understanding this text as I do, I have no doubt that, whilst dealing
with questions of legal interpretation, it lays down the rule that under the
Shia law no waqf can be created if its operation is rendered contingent upon
any future event such as the death of the donor. In other words, the text
shows that a man cannot say : " I created a waqf now, but it will take
effect upon my [576] death." Such phrases are dealt with by the
Shia law as mere phrases expressive of intention, but not constituting a
waqf, and in the absence of offer, acceptance and actual delivery of
possession, the contract of waqf is not constituted, and therefore what
is known to jurisprudence as the transvestitive fact does not occur till
actual delivery to possession of the maukuf-alaih (id* w5|'j) , that

is the person in whose favour the waqf is made, except, of course, in cases
where by the very nature of the waqf, such as in the cases of a mosque
and public medicants, the acceptance of such possession is impossible.

I have already said enough to show what the effect of death of the
waqif (J5U) before delivery of possession is upon the validity of the



waqf, namely, that the waqf becomes void and the property is dealt
with as the estate of the deceased, subject to the laws of inheritance
and administration of his estate. This view is by analogy in full
keeping with the principle of another class of dispositions of property
requiring actual delivery of possession as the condition precedent to the
validity of the transaction ; I mean hiba or gift, which again is regarded by
the Shia law as a contract subject to the doctrine of tanjiz, already
explained. There the rule in connection with that and common to waqf
is laid down in the Shar ay i-ul- Islam to be that :

" If the donor should die after the contract and before possession
has been taken of the gift it falls back into his in heritanoe. Permission
of the donor is a condition of valid seisin, and if the thing given be taken

672



YII] AGHA ALI KHAN V. ALTAF HASAN KHAN 14 All. 478

possession of without hia permission it is not transferred to the donee." 1892
(Baillie's Imameea Law, page 204).* JJAY 9.

The stringency with which the Shia law regards as void ivagfs which -
are not OBdonditional and rhaolute and in pursuance of which actual FULL
delivery of possession has not taken place is well illustrated in the Jami- BENCH.
ul Shu tint in the form of question and [477] answer. I will quote the -
original text;, as also the translation, for which lam responsible, as it 1*A.429
was not cit-d by either of the parries, though it come? nearest to the facts (F.B.)=-
of the c iae, out of which this refetonce has arisen. The original text is 12 A.W.N.
aa follows 'p. 349, Tehrar edition) : - *' < 1892 ) 187 -

The aufchoritativeness of the work from which this text is taken is
undoubted, for both parties have relied upon the book in the course of
their arguments. The following is my translation of the original text :

' Question. Whether when a person makes a waqf and provides
that the mutawalli shall affcer the death of the ivaqif employ the profits of
the property for holding prayers and fasting is such a loaqf to be regarded

aa a waqf for himself ( (jr& jt *J3, ) for the taking out of the ivaqif (from

the proprietorship of the property) ? Are entire profits to be regarded of
this kind, or there is any distinction between what applies to the whole
and a portion thereof ?

"Answer. The accepted opinion 'O 4 '^) is that such a waqf is a



waqf on one's self u**^! ^ft or a condition reserving profits for

himself from the waqf; and since it thus becomes dependent it also has
another defect, namely, that destructive of the original transaction itself,
because so long as the waqif lives there is no beneficiary of the trust.
The accepted opinion is that no difference exists (as to the applicability
of the rule) between the whole or a part."

The general effect of the text may be stated to be that such a waqf
when rendered contingent for its operation on the death [478] of the
ivaqif is invalid, as, during the continuance of the waqif s life, he would
continue to enjoy profits and therefore it could not be regarded as " entirely
taken put of the waqif, or appropriate! 1 , himself " in the sense of the Shia,
law. (Vide Baillie's Imameea Law, p. 218 )

On behalf of the plaintiff Pandit Sundar Lai baa quoted numerous
texts, of which he has also filed translations. It would be undulj- lengthen-



oo



673
A VU-85



14 All. 479 INDIAN DECISIONS, NEW SEEIES [Yol.

1892 ing this judgment if I were to deal with every one of them separately,
MAY 9. and it will be enough if I refer only to the more important and relevant

ones. The texts have been cited to sustain the following propositions :

FULL (l) That a waqif can appoint himself mutawalli of the wagf property

BENCH, and therefore delivery of possession is not necessary.

(2) That even when the waqif appoints another person as mutawalli
of the waqf, neither delivery of possession to such mutawalli nor acceptance
by him of the waqf is necessary.

(3) That when the waqif dies before delivery of possession of the waqf
* property, tha waqf is to be dealt with as a bequest and should be enforced

to the extent of one-third of the estate of the deceased.

' (4) That a waqf or appropriation in prcesenti may be created and its
operation may be lawfully suspended till the death of the waqif.

(5) That a waqf otherwise void becomes validated if the heirs of the
deceased waqif consent to its conditions.

Upon the first of these points the following texts have been relied
upon :

" There is no difference of opinion as to the lawfulness of the waqif
(author of trust) reserving for himself the taulit (control) of the business
of the subject-matter of ivaqf and the supervision thereof ; for he has the
best right to attend to thab and to use it for the beneficiaries. Similarly
there is no difference of opinion as to the lawfulness of appointing, for
the control of the subject-matter of waqf, another or another and himself
together [479] or a person not in existence in succession to one in exist-
ence, such as by appointing Z who is in existence and his descendant who
may be born next after the loaqf. Verily Fatima (the blessings of God
may be with her) entrusted the business of her seven gardens, of which
she had made a waqf, to the Commander of the Faithful (Ali), after him
to Hasan, after him to Husain, (peace be with both of them!) and after
him to the eldest of her descendants ; so has Abu Basir reported from Ali
Jafar." (Sharah-i-Mafatih by Mulla Hadi, p. 491, lines 1, 2 and 3.)*

The rules of law which this text expounds are really not matters of
controversy in this case, because it is not denied that an appropriator can
appoint himself as the mutawalli ol a waqf, and that in such a case change
in the character of possession amounts to transfer of possession which
would be required when the mutawalli appointed for the waqf is a person
other than the waqif himself. There is nothing in the text to show that
delivery of possession as a condition precedent to the validity of a waqf
is dispensed with in cases such as the present, where the waqif did not
appoint himself as mutawalli, but, on the contrary, specifically named and
appointed Muhammad Taqi to be the mutawalli.



j. *



) r ) t

674



YII] AGHA ALI KHAN V. ALTAP HASAN KHAN 15 All. 480

Similar remarks apply to fche next text relied upon, which runs as 1892
follows : MAY. 9.

And it is in the Hadees chat Amir-ul-Mominin endowed his property
ior obedience and love of God and sympathy to his relatives and after it FULL
made Imam Hasan the trustee of the waqf, and after him Imam Husain, BENCH.
and after him the person whom Imam Husain might appoint, as the case
may be, and that the latter (Imam [480] Husain) should require the person
so appointed trustee to keep the property (corpus) untouched, and to
divide the usufruct in such manner as Imam Husain directs for God's
sake or for sympathy to the relatives (i.e., children of Hashim and children
of Mutallib) whether near or remote, and that no portion of the corpus be
sold or gifted or transferred by inheritance to any other. So far is the
Hadees,

"You must have observed that this Hadees. does not show anything
but that after waqf it is essential that the corpus be untouched and not to
change its features and that there should be no interference therein such
as those mentioned above or the like and tbat the usufruct be spent in the
manner enjoined by the donor ; and this Hadees does in no way show tbat
the property endowed can be transferred to any person. This Hadees
sets aside the general saying that the endowed property is tranferred
in such cases to the donee, and although this Hadees is long enough, there
is nothing in it to show that Amir-ul-Mominin gave possession of the pro-
perty endowed to any person ; on the contrary, it ehowsSthat he remained
in possession of the endowed property during his life-time and used to
spend the usufruct thereof in the above-mentioned expenses, that after his
death the trusteeship was with Imam Hasan, and after him it was with
Imam Husain, and after him with the person alluded to in the Hadees.
Therefore had possession been a condition to the validity of the endow-
ment there should have been some hint thereof in the Hadees. And to
suppose that he held possession as ruler is possible, but it is very remote,
inasmuch as no authority exists for that (that possession is essential) and
the like ; whereas you have been informed above that there is no authority
that possession is essential in such cases." (Hadaiq of Sheikh Yusuf
JBahraini, pp. 515 and 516.)*



dij j^AUe Jj| -.
*



675



14 All. 481 INDIAN DECISIONS, NEW SEBIES [Yol.

1892 [481] It will at once be observed that the case mentioned in the text

MAY 9. is one in which the waqif, Ali had appointed himself as mutaioalli of the

- waqf and administered ifc as such, thus fulfilling the requisite change in

FULL the character of possession which takes the place of actual transfer of

BENCH, possession when the waqif appoints another person as mutawalli. Neither

of these texts therefore goes the length of the learned Pandit's contention.

14 A. 429 jj or j g fo e suppor ted by the text (No. 7) which he has cited from the

Tazkirat-ul-Fukha by Allama Hilli (p. 433), which need not be quoted as

12 A.W N. j(. re j a 't e8 t o a w m m ade by Fatima, the daughter of the Prophet and lays

down nothing as to waqf or delivery of possession to the mutawalli.

Upon the second point of Pandit Sundar Lai's argument, namely,
. that even where bbetvaqif has appointed a mutaioalli,- deli very of posses-
sion is not necessary, he has relied inter alia upon the following text:
" I say, let it not be concealed to the person who resorts to Hadees
overlooking what lawyers have said. The Hadeeses [482] certainly
show that when the donee (maukuf-alaih) is existing the ownership is
transferred to him, and consequently the Hadeeses contemplate the condi-
tion of possession on the part of the donee or of the guardian of the donee,
so that the ownership of the donee, may be completed by possession and
so that the donor (waqif) may become unable to retract from that act as
said in the Hadeeses above-mentioned. And when the donee be a class,
auch as beggars, or when the donation be merely charitable, such as
mosques, in such cases whatever is the rule which is established by these
Hadeeses is that the property is excluded from the ownership of the donor;
but the Hadeeses do not prove whether the property thus given becomes
the property of God or of any one else. These Hadeeses come to the
conclusion that the property after being endowed and after being excluded
from the ownership of the donor it is necessary that the subject of
endowment should be kept up, and it is not proper and valid to appropriate
it by means of sale, gift, inheritance and the like, which deprive it from its
character of charity for which it was transferred. Of course, possession
has been made a condition to it, as is generally known that possession is
conditional to the validity of endowment. In such a case possession will
be taken by the trustee appointed by the donor or by the ruler of the faith
(lawyer or lawgiver), " Hakim Sharah," or by some other person for which
there is no provision in the Hadeeses. The place wherein these Hadeeses
require possession to be essential, of course, is a place where the donee is
existing, and appointed and specified, (Hadaiq of Sheikh Yusuf Bahrain!,
page 516. lines 8-18.)* _ .'

l ^h Jx^l^a,, / 3* j>\ >*> j&Wl tt ,|

U s utfj k> Jj^j $ J| ^ *> l** ) *



;| UJ

o** J oi
67B



AGHA ALI KHAN V. ALTAP HASAN KHAN 14 All. 48*

[483] Now, as I understand this text, far from supporting the argu- 1892
ment of the learned Pandit, it has a contrary effect, because it; clearly MAY 9.
lays down the necessity of delivery of possession as a condition for the
validity of waqf. The same cannot be said of another text which he has FULL
cited, but of which the translation furnished by him is erroneous. The BENCH.
text runs as follows. with my translation of it:

" It appears that seisin is a condition for obligation and not for ** * ** 9
validity, as is the case with a sale during the period of option ; so that
by a mere contract a complete transfer is constituted, but the waqif can *
revoke it before the delivery of possession. The accession made between (1802)1
the time of contract and seisin will ba for the maukuf-alaih, and the
death of the maultuf-alaih (beneficiary of the waqf} in the interval will
not vitiate the contract." (Sharah Mafatih by Mulla Hadi, p. 485.)*

This text no doubt partly supports the Pandit's arguments, but it is
opposed to far more authoritative works such as the Sharayi-ul- Islam
and the Masalik-ul-Afham and other text-books which I have already
quoted, showing that delivery of possession is not merely a matter of form
but an essential element in its constitution, as in the case of hiba or gift.
The Sham Mafatih by Mulla Hadi is a work of comparatively modern
date and is [484] not to be compared in point of authoritativeness with the



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 100 of 155)