Chas. A. Stevens & Bros.

The 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

. (page 101 of 155)
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 101 of 155)
Font size
QR-code for this ebook

Sharayi-ul- Islam or the Masalik-ul- Afham (vide account of these works
at pp. 171-173, Tagore Law Lecture for 1874 by Shama Gharan Sircar). I
therefore reject the authority of the text and prefer that of the Sharayi-
ul-Islam and other works from which I have quoted.

Upon the question of acceptance by the mutawalli or beneficiary of
the waqf the pandit has cited two texts. One of them is the following : -

" A person in whose favour supervision has been stipulated is not
bound to accept. If he accepts he will not ba bound to supervise for ever,
because it is similar to taukil (the appointing of an agent) in its signifi-
cance. Where supervision becomes void it will be deemed as if supervision
was not stipulated." (Sharah Lamah by Shahid II, p. 105, line 28.)*

j c5 - ;
l ^ Ijt t*A4 Uil


14 All. 485




MAT 9.


11 A, 129

(169t) 187.

Similar is the effect of . the obher text (No. 14) from the Masalik-ul-
Afham by Shahid II (p. .344), which, however, I need not quote because
their simple effect is that the person appointed to supervise a waqf is
under no legal obligation necessarily to accept the trust unless he wishes
it, and also that after having once accepted it he is at liberty to resign.
The texfcs cannot be understood to mean that delivery of possession and
acceptance are not conditions precedent to the validity of a waqf.

1 now pass on to the third point of the Pandit's argument, namely,
that the death of the waqif before delivery of possession converts the ivagf
iutc, a bequest whiou In tu be enforced to the exbeut ot onc-shird 01 liic estate
of the deceased. For this contention he relies upon the following text :

" Ib is reported from Kafi by Abassalah that if a person make a
charitable donation (sadagah) for any of the said purposes and make
witnesses upon himself in that respect, and die before delivery, [435] then
if the sadagah is for a mosque or good purpose, ifc is enforcible. If it is
in favour of a person, possession by whom or whose guardian is valid, then
it is a bequest, and the provisions of bequest shall be applied to it. In Al
Momsim Sallar has not at all mentioned possession amongst the conditions.
All that will show the reasons for what is said in Masalik, Riaz and other
books as to possession being unnecessary in waqf. So much so that the
unanimity of opinion is reported from Tankih." (Jawahir-ul-Kalam by
Shaikh Muhammad Hasan Najfi, p. 488, lines 28-30.)*

The text plainly read relates to sadaqah (*** , or alms ; but the

Pandit has argued that ifc relates to waqf also, though the word does not
occur in the text, and in support of this contention he has cited the
following two texts :

" In many traditions the word sadaqah has been used for waqf; nay,
no word other then sadaqah has been reported in respect of the waqfs
made by the Imams, peace be with them." (Jaivahir-ul-Kalam by
Shaikh Muhammad Hasan Najfi, p. 487, line 45). t

" It is one of the sadaqahs. Similarly it is said in Nihayat and Mora-
sim that a waqf and a sadaqah are one and the same. Perhaps this is the
reason why the author of Durus has defined it as a perpetual sadaqah;*




nay, even in Masalik, Taskira. Mohazzab-^&tilul-barey and Tankih the 1892
learned have said that it means sadaqah." (Jawahir-ul-Kalam, p. 486, MAT 9.
last line, and p. 487, first line.)*

Now in regard to these texts, whilst it may be conceded that the FULL
word sadaqah (**>-) and its derivatives may be used under circumstances BENCH.
and conditions wtrch would amount to a waqf, yet where such oircum- jj 7429=
stances and conditions do not exist, its use will not constitute a ivaqf. This <p.B,) =
is clear from the text of the Sharayi-ul- Islam, which I have already 12 A.W.N.
fuoted, rivin< r.}-, 'i^fioHion and constitution of waqf (vide Baillia'i (ig%y^ 187,
Imameea Law, p. 211). Comparing that definition with the incidents of
sadaqah (*>J^) or alms described in the Sharayi-ul-Islam (vide Baillie's
Imameea Law, p. 256) it seems clear that;, among other distinctions, waqf
has the effect of tying up the corpus or substance of a thing and leaving
its usufruct free for being employed for the purposes of the waqf in
perpetuity and subject to other conditions (vide Baillie's Imameea
Law, p. 218) which are not applicable to sadaqah (^^>) or alms. Indeed
in sadaqah (A3>o) the corpus of the property itself is bestowed and perpe-
tuity is not one of its conditions. I do not consider it necessary to dwell
upon this subject beyond saying that waqf and sadaqah ("**") are
separately treated in the authoritative law works, and that the
nature of the two transactions being distinguishable in many inci-
dents it would be erroneous to confound the rules relating to the one
with the rules relating to the other. I will go further and say that, even
if I could have accepted the interpretation with Pandit Sundar Lai has
placed upon what is said in the text of the Jawahir-ul-Kalam as to the
sadaqah (&x*-<0 being applicable to waqf also, I would not have adopted
it, as upon such interpretation the text will be opposed to the far higher
authority of the Sharayi-ul- Islam, the Masalik-ul-Afham and other works
from which I have quoted in the early part of this judgment.

[487] The next class of texts which the learned Pandit has cited
relates to gifts and waqfs, or charitable donations made in death-illness
(^*J Vjcjxi) : aa an illustration of these texts the following may be quoted :

"If a person made a gift or waqf or charitable donation in his death-
sickness, it is to be satisfied out of one-third, according to the better of
the two opinions, excepting in the case of the heirs giving sanction. The
same rule applies if he did so in good health and delayed possession till
sickness." (Sharah Lamah by Shabid II, p. 108, lines 10 and 11.)*

^5 Jj. {jJ dJ 5 c>0>.J 5 ^ix

JjJi>UljJ)Jl3 *4JU
P Al



. A As** ^iO ^ A**J ^ ^ ^X ) y^Ji

* (II



1892 This text is authoritative and shows that gifts or waqfs made during

MAY 9. death-illness (marz-ul-maut) (c-jJ^j*), which is a technical phrase of

FULL * ne Muhammadan law, are to be held valid to the extent of one third, as

T described. But there is nothing in the text to justify the contention that

__ ' a gift or waqf made during death-illness becomes valid without all the

14 A. 129= incidents constituting it, such as delivery of possession. The texc in using

(F,B.)- the words gift and waqf means valid gift:-t and valid wngfs. both of which

12AiW.N, require delivery of possession to render tihetn valid. Tue rule as to the

(1892) 187. marz-ul-maut (^'L/*')-*) affecting transfers relates not r^ ti-ansiei-s which

are a b initio void, but to transactions which, being valid, are affected by

the rule. In this very text which I am now considering the last part

shows that the same rules apply to a gift or waqf made in pood health, but

in which possession was not delivered till the transferor fell ill. The phrase

takhir-ul qabz (o^^ hi^ ^) which has been rendered in the learned

Pandit's translation by the words " delayed possession till sickness,"
might have been more clearly rendered by the words : " the delivery of
possession having been delayed till sickness." What I mean to explain
is that the text implies that both in the case of gift or ivaqf delivery of
[488] possession has taken place during death-illness, and that it cannot
be understood to mean that delivery of possession may be dispensed with
altogether when such transfers are made during death-illness. Upon this
point I may in passing refer by analogy to the ruling of this Court in
Musammat Labbi Beebee v. Musammat Bibbun Becbee (1) which in dealing

with the effect of marz-ul-maut (&)+) 'o**) or death-illness, upon gifts

made, makes it clear that the will would have been void if no possession had
been given at all during the illness of the donor. I may also perhaps refer
to the case of Yusuf Ali v. The Collector of Ttppera (2) where it was laid
down that under the Muhammadan law a gift of property in futuro, that
is, a gift made to take effect at any future definite period is not valid
unless possession has been delivered. These are cases governed by the
Sunni law, but upon this point as to the necessity of delivery of possession
in gifts the Sunni law is in accord with the Shia law, as appears from the
quotation which I have already made from the Sharayi-ul-Islam, namely,
the text whioh lays down that "if the donor should die after the contract
and before possession has been taken of the gift; it falls back into his in-
heritance." (Vide Baillie's Imameea Law, p. 204, also p. 203 as to defini-
tion and constitution of gift.)

For similar reasons the other texts which the Pandit has cited as to
waqfs or gifts made in marz-ul-maut (^*Jl^*),or death-illness does not

go the length of supporting the learned Pandit's contention that such
waqfs and gifts are independent of delivery of possession as essential to
their^validity. I will quote the text and it runs as follows :

Where a person made a waqf in his dangerous illness, and similarly
where he made a Sadqat-ul-tamlik (assignment of ownership by way of
charity) a gift or a bequest, our masters have two reports in respect thereof.
One of the two is that it is to be satisfied out of one-third, and this is the
doctrine of the opposite sect (Sunnis). The other is that it takes

(1) N.W.P.H.O R. 1874, p. 159. (2) 9 C. 138.



effect immediately. Now if the first report be established, then if the 1892

beneficiary be an [489] heir, the waqf shall at all events be binding as MAY 9.

regards one-third (of the estate) among us, while among the opposite sect "

(Sunnis) nothing is binding until the rest of the heirs give sanction, EUIiI'

because they say, ' verily there can be no bequest in favour of an heir.' BENCH.

If the waqf be made in favour of a stranger, and it can be satisfied out of ^ ^ ,_.

one-third the ivaqf is binding ; but if it cannot be satisfied out of one-third, ip jj >,

and the heirs sanction the excess, it shall be binding as regards the whole, 12 A W N

and if thpy do not sanction that, it shall be binding to the extent of one- , 18 g2) 187
third,;. n?spect of the r exces8.' " (Mabsut by Sheikh Abu
Jafar, p. 273, lines 17-20.)*

Now this text, whilst describing minor differences between the Sunni
and the Shia law, contains nothing as to the dispensibility of delivery of
possession in the case of waqfs made during death-illness. The text, like
the preceding one, in referring to waqf, gift or other transactions men-
tioned therein, implies that each one of those transactions has been
completed according to the exigencies of the rule governing each. To put
the matter shortly, neither of these texts can be understood to refer to
invalid and incomplete transactions such as a waqf or gift would be under
the Shia law without possession.

In support of the fourth part of his argument, namely, that a waqf
or appropriation in pr&senti may ba created and its operation may be
lawfully suspended till the death of the waqif, the learned Pandit has
relied upon the following two texts :

[490] ''Proposition. The necessary incident of a waqf in the opinion
of all our doctors is immediate perpetuity, whether he did or did not
postpone it after his death, and whether a Judge did or did 'not pass a
decree therefore." (Tazkirat-ul-Fukha, by Allama Hilli, p. 439, Hues 39
and 40.)*

" There is no difference between his fixing the time (of tauliat) in the
life-time, and his making a will (therefor) in the matter of the stipulation
and specification made by him becoming obligatory. If a person make no
restriction in his making a waqf and do not make a provision for tauliat

\)j&?~ U** ,** fj*i. V uS-H** 1 joic , Jt-a. JT

( f v P isrfi*' ^a*^ y | a,-

.v*jt J| &JLoJ >]^ .U.sJr
* = ?>I l^jUlc I>AC tj^^i

* ( r* 5 H


A VII 86

14 All.




MAY 9.


14 A. 429

12 A.W.N
(1892) 187.

(governance of the trust) in favour of any one, it shall be deemed that the
waqif, author of trust, is to supervise, because supervision and appropria-
tion primarily rest with him, and since he did not withdraw them from him-
self, they remained where they were." (Tazkirat-ul-Fukha, page 441, lines
27 and 28.)*

These two texts come from one and the same work, which is of lower
dignity in point of authority than the Sharayi-ul- Islam or the Masalik-ul
Afham and the other words which I have already cited. Those works
require tanjiz as explained by me and also delivery of possession as
conditions precedent to the validity of &[waqf, and I prefer their authority
to the authority of these texts ; and I may add that the texts understood
even in the sense in which Pandit Sundar Lai interprets them fall short of
showing that delivery of possession is not a necessary condition for the
validity of a waqf under the Shia law.

Among the other texts which he had cited two relate to the question
how far the admission of a waqif as to his having delivered [491] posses-
sion of the waqf property is binding upon him. These texts are the fol-
lowing :

" Proposition. If a person admit a gift and seisin together and say :
' I made a gift to him and delivered possession," or, ' I made it over to
him, or, ' he took it from me,' he will be bound by the admission and
judgment shall be given in respect thereof according to the purport thereof.
So if he retracts and denies seisin no attention shall ba paid to his denial,
because it involves the falsification of his own statement; although he may
offer an explanation of bis admission by saying, 'I made the admission
because my agent had informed me of his having delivered possession to
the donee, whereas he (the donee) had not got possession ' or (by saying)
' I did not remember.' " (Tazkirat-ul-Fukha published at Tehran, p. 169,
line 1).*

" Question. A person wrote under is own hand that he made a valid
and lawful waqf of his such-and-such house without mentioning the deli-
very of possession, which is a condition for the validity of the contract of
waqf, and for its being obligatory, and be caused witnesses to testify to
the correctness of what he wrote. Is or is not that sufficient for the
establishment of the waqf and for its being obligatory ?

" Answer. What appears from the jurists on gift, &c., is that an
admission as to a gift, a waqf and anything similar to them in which
delivery of possession is necessary, does not amount to an admission as


f V



to delivery of possession ; but what appears on making reference to fche 1892

practice of the day, when attestation is probable, is that admission as to MAY 9.

a waqf means a valid admission containing all the elements and fulfilling

all the conditions. The same rule applies when the making of a gift, a FULL

waqf or the like [492] becomes obligatory by new promise and other thing BENCH.

creating an obligation. Notwithstanding all that, it is necessary in such

questions to resort to the Judge of final jurisdiction, and to lay the case

before him, and not to content oneself with the mere dictum. God knows (P.B.)~

well." (Zakhirat-ul-Zlaad by Sheikh Zain-ul-Abdin Hujjat-ul-Islam, 12 A.W H.

p. 651, lines 1121.)* < 1892 > 18T -

It is not necessary to discuss these texts minutely because whilst
they distinctly affirm the principle as to the delivery of possession being
necessary for validity of a waqf, they lay down no rule of the substantive
law of tvaqf, but propound rules of adjective law or procedure relating to
the effect of admissions, and when such admissions may be rebuttable,
when irrebuttable, and when they may amount to an estoppel. These ace
matters which under the procedure of our Courts appertain to the province
of the law of evidence which?we have to administer according to the Indian
Evidence Act (I of 1872). I go further and say that even if it were not
so, there is nothing in these texts to warrant the contention that the mere
fact of a person having written a deed such as Muhammad Ali's will of
"the 3rd of November, 1863 (which is in question in this case) would debar
his heirs from proving that the recitals of the deed to the effect that actual
delivery of possession had already taken place by the act of the waqif to
the mutaioalli, namely, Muhammad [493] Taqi, were not true, and that as
a matter of fact no possession was ever delivered to the mutawalli. Indeed.
in regard to this matter there is upon the record a judgment of Mr. Sapta,
District Judge of Cawnpur, dated the 20th of January, 1866, which is
mentioned in the referring order and which was the result of a litigation
between the mutaioalli, Muhammad Taqi, as plaintiff and Musammat
Kanizak Fatima, daughter and sole heir of the deceased ivaqif, Muham-
mad Ali, as defendant, the object of the suit being to recover possession
of the waqf property, and the defence being that the waqf was invalid and
no delivery of possession had taken place and the mutawalli had declined
to accept the trust. The suit was dismissed upon acceptance of the pleas
in defence in that case, and it will no doubt be for the Division Bench
which has to deal with this case to consider whether the District Judge's-

^) 5 **)>* 5 -*Vi <**

(<r) fl ^ 5 > j 5

5 L_W,J|j ZH}(> ;iy>Hj


# ( r I


14 All. 494



1892 judgment of the 20bh of January, 1866, in the former case does not operate
MAY 9. as res judicata in this case, and if so, to what extent.

The remaining texts quoted by Pandit Sundar Lai have a bearing

FULL upon the third point referrred to the Full Bench, namely, whether the

BENCH, consent of the waqifs (appropriator's) heirs to a testamentary toaqf, which

- was in itself invalid would validate such a waqf. In reference to this

14 A. 429 point many texts have been cited, but of these I need take only two as

(F.B.)<= specimen* and quote them. These are the following:

12 A.W.N. " The heir's sanction after death has weight. As to whether it is

<18B2; 187. vali<i ii given before death there are two opinions. The more celebrated

of the two is, that it is binding on the heirs. When the sanction takes

place after death, it is one for the testator's act. It is not the commence-

ment of a gift, and consequently the validity thereof does not depend

upon seisin." (Sharayi-ul- Islam, p. 209, lines 18 and 19.)*

[494] " So if a person bequeath more than one-third and the heirs
give sanction, the bequest is valid. If the heirs refuse to sanction it, it
becomes void. If some of the heirs sanction it, the sanction will take effect
to the extent of his share in the excess. If the heirs sanction a portion of
the excess, the bequest will be valid in respect of that portion specifically.
If a person make a will for the sale of his estate for the market value,* then
there is doubt as to the sanction being necessary. Sanction is the enforce-
ment of the testator's act and not the comencement of a grant. Therefore
it does not require seisin, and the expressions, 'I sanctioned,' 'I enforced, 1
and the like are sufficient. So if a person emancipate a slave, who is
the only property he has, or makes a will for the slave's manumission, and
then the heirs give sanction, the right of wala is entirely for his residuary
and not for that of the heir. There is no distinction between the testator
being sick or in good health. Sanction takes effect if it takes place after
(the testator's death) according to all. and as to its taking effect before
death there ara two opinions." (Qawaid-ul-Ahkam by Allama Hilli, p. 397,
lines 5-ll.)t

In regard to these texts it is enough to say that they do not deal with
the point under consideration and are irrelevant. They relate to valid



( M )

* The original literally means ' value of the similar.'

fc -j-

i> JXJf ^i'Atf



bequests and how far such bequests are enforcible when they exceed the 1892
recognised one-third share of the estate of the deceased by reason of the MAY 9,

consent of the heirs. There is nothing in these texts or in the others

which have been cited to show -that [495] ivoqfs which are void gifts, FULL

which have lapsed, and in which no possession was ever delivered by the BENCH.

deceased waqif or donor ace to be dealt; with under these rules. T ana of

opinion that neither these texts nor the others which have been oiied by * * * 29

Pandit Sundar Lai upon the effect of the consent of heirs to tue will of the

deceased testator have any relevancy to the present inquiry wuere the 12 *-W-N,

question relates, not; to valid bequest, but to a waqf which, as I have (1892) 187.

already shown, must be regarded as void under the Shia law, not only by

reason of non-delivery of possession by the waqif to the mutawalli, but

also by reason of the non-acceptance of the trust by the mutawalli.

It is not for the Full Bench to enter into the minute details of the
will of Muhammad AH of the 3rd of November, 1863, nor the effect of the
District Judge's judgment, dated the 20ih of January, 1866, beyond what
has been stated in the referring order, acd I therefore refrain from enter-
ing into that discussion here in the Full Bench.

My answer to the first question referred to the Full Banoh is in the
negative, and to the second question my answer is in the affirmative. To
the third question my answer is in the negative, because id is a principle,
not only of Muhammadan jurisprudence, but of all civilized systems of
law, that a transaction which is void in itself cannot ba validated by any
subsequent act of the heirs of a deceased person. If they wish to give
effect to an invalid transaction themselves they can of course do so by
a valid transaction of their own ; but no consent by them can validate a
transaction of their predecessor-in-title which was void in law and never
took effect.

With these answers to the three questions referred to the Fall Bench I
would return the case to the Division Beach for disposal upon the other
points which ?riee in this case.

EDGE, G.J. I have had an opportunity of reading and considaring
the judgment which my brother Mahmood has just delivered. I entirely
agree with it and have nothing further to add.

KNOX, J. I concur with my brother Mahmood in considering
that the replies which should be returned to the questions referred
[496] to us are: (1) that a waqf-bil-wasiyat is not valid under the
Muhammadan law of the Shia school in the absence of actual delivery by
the waqif himself of possession of the appropriated property to the
mutawalli or person appointed as superintendent thereof by the deei by
which the ?#<?/ is created ; i2) that the death of the ivaqif before actual
delivery of possession by him to the mutawalli or beneficiaries of the trust
does invalidate the waqf so as to render it null and void ab initio under
the Shia law ; and (3) that the consent of the appropriator's heirs to such
testamentary luaqf under tbte conditions just noticed cannot validate such
a waqf.

The various texts which have been cited during the hearing of this
reference have been so exhaustively treated by my brother Mahmood, that,
although 1 had considered them carefully and satisfied myself as to the
construction which should be placed upon the more important of them, I
shall content myself with saying that the constructions which I was prepar-
ed to place on those texts coincide with those at which my brother Mah-
mood has independently arrived. I am fully satisfied that, whatever may ba


14 All. 497




MAY 9.


14 A. 129

12 A.W.N.
(1892) 187.

the Swnni docfcrine as to the essence, nature and incidents of wngf ; the Shia
school regards the transaction as a contract and as subject to the incidents
which that law imposes on u contract. The author of the Jaiuahir-ul-

kalam in the passage beginning } " ^UsKUUi owjJU'a* ^} I . j . ^" brings this

point out very clearly, and the learned Counsel who appeared for the
appellant himself had no hesitation in admitting that this work was a

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 101 of 155)