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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 27 of 155)
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been assigned to my heirs, for maintenance and for protection andperpetua-
tion of riasat and not for any sort of transfer; but the way for the
management is that one person be the owner and manager of the whole
and the rest be his dependents and sharers in the profits in cash to the
extent of their fixed shares without division of any land, for by division
power will be diminished and the riasat will be reduced to small parts.
Then there loill be neither the perpetuation of riasat nor the perpetuation
of honour, and then the distinction of my family will be lost. Therefore the
powers of management of villages and domestic affairs, payment of
revenue, and defending the claim of adversaries to the riasat &o. t i.e., of all
matters in connection with the protection, authority, and proprietorship,
have been conferred upon Kurban Ali just as I have. He shall not be
interfered with therein by any one else. It is incumbent on him also that
by honestly acknowledging and giving effect to this deed he should assign
this riasat to one of his legitimate and rightful issue after his death, and
he, the latter, should also do the same after his death, i.e., should assign
this riasat in regular succession, subject to these customs, so that. God
willing, this riasat may be preserved in my family generation after genera-
tion. It should also be binding that so long as there may be any male
issue of any sharer this right should never be conferred upon any daughter
or the issue of a daughter. But it is allowed to fix something in cash
for maintenance for life as I have done, in case of insufficient livelihood.
The docuncett, with all its conditions, should be in force after my death,
both against my heirs and the property left by me, and every one should
consider it binding on him to carry it into effect. Until my death my
power will remain as it is."

[266] Now its seems to me that no rational person reading that docu-
ment through can come to any other conclusion than that the only object
that the maker of it had in view, to use his own words, was " the perpe-
tuation of the riasat, the perpetuation of honour and the distinction of his
family, and that the riasat might be preserved generation after generation."
The mere casual mention in the middle of the document of " expenses
relating to door (darwaza) and of ceremonies and taziadari in Mubarram,"
does not appear to me to alter the real, main and direct scope and object
of the instrument, about the meaning and intent of which there seems
to me no room for two opinions.

Such being the nature of the deed, Mr. Bancrji, upon the strength of a




13 All. 268

passage appearing at page 203 of Mr. Amir Ali's Tagore Law Lectures,
contended that it constituted a good wakf of the whole of the properties.
I confess that I was a little starfcled at this argument, and the more I have
thought of it since, the more difficult have I found it to see any force in it.
In the case of Ranee Khujooroonissa v. Mussammat Roushun Jehan (1) (a
case which, by the way, may be looked at for other purposes in connection
with this appeal than those for which I am about to use it), there is the
following passage in the judgment of their Lordships of the Privy Council:
" The policy of the Muhammadan law appears to be to prevent a testator in-
terfering by will with the course of the devolution of property according to
law among his heirs, although he may give a specified portion, as much as
a third, to a stranger. But it also appears that a holder of property may,
to a certain extent, defeat the policy of the law by giving in his lifetime
the whole or any part of his property to one of his sons, provided he com-
plies with certain forms. It is incumbent, however, upon those who seek
to set up a proceeding of this sort, to shew very clearly that the forms of
the Muhammadan law, whereby its policy is defeated, have been complied
with." This lays down a golden rule, which has ever since been followed
in dealing with such documents in cases among Muhammadans.

[267] The passage in Mr. Amir Ali's book that was the foundation of
Mr. Banerji's argument is this : " Kazi Khan, following Imam.Ibn-ul
Faze, states that wakf is of three kinds in relation to the state in which it
is made

(1) When it is made in health ;

(2) When it is made in illness ;

(3) When its operation is made dependent upon death.

"Change of possession and appropriation is necessary in the first, but
not in the third, for that is testamentary in its nature ; but the second is
like the first, though it takes effect with reference to the third of the estate
of the wakif like a gift made in death illness.

"It has been already stated that .a wakf is irrevocable, but a wakf
made by a person to take effect after his death, or what is called a wakf
by way of wasiat (wakf-bil-wasiat) is revocable at any time before his

If this case involved the bare question as to whether a wakf could be
constituted by bequest, and if I wera unable to dispose of this appeal
without determining that; point, I should have thought it right to obtain the
assent of my brother Tyrrell to the disposal of this appeal standing over
till the decision of the Full Bench in a case which has been referred by
my brothers Mahmood and Young had been given ; but it seems to me
that Mr. Banerji's concession in answer to a question I put to him, has
relieved me of any difficulty, and that we may dispose of 'this appeal
upon the assumption that a wakf by bequest may be created. While
Mr. Banerji's contention upon the passage is that a wakf may be constituted
by bequest, he was constrained to admit, that, even if so made, it must be
accompanied by all the incidents of wakf ; and that, except in so far as
immediate change of possession is concerned, a wakf created by bequest,
and a wakf created by a deed to take immediate effect in the lifetime of
the wakif, stand upon the same footing. If this were not so, it is easy to
see that any Muhammadan might defeat the ordinary rules of his law of
inheritance and his heirs by disposing of his property by a wakf. No
question arises here as to this [268] document having been executed

(1) 3 I A. 391.


DEC. 8.


ISA. 261=*
11 A.W.N.
(1891) 13.

13 All. 269



1890 by Basbarat Aliin death sickness, or that it was to have effect a* once ;

DEC. 8. indeed, it is perfectly plain he contemplated that things should continue
unchanged in his lifetime. In my opinion, the Muhammadan law,

APPEL- whether it be Shia or Sunni law, and I have had no authority shown me
LATE to the contrary, requires that to constitute a valid wakf it must be for

CIVIL, purposes that cannot fail, and it must have some pious and charitable

' object. If no such incident as the latter were required, then every

13 A. 261= Muhammadan intending to make a will as to his whole property would do

11 A.W.N, so by costituting a wakf by bequest. In passing, I may remark that in

(1891) 13. former litigation in regard to this very document, it was treated as a will

by the representative of Kurban Ali, and it was upon that contention that

they succeeded in those proceedings.

Now it is not denied, as 1 have before remarked, that for the purpose
of constituting a wakf there must be certain specific conditions. I am
willing to concede also .that an endowment in the nature of a wakf
would not be bad, because out of the property endowed, provision was
made for the settlor's family. But, even if it be conceded that, whilst
inter vivos, change of the character of his possession is necessary
where the settlor creates himself the mutivalli, or where he creates
somebody else the mutwalli by direct seisin of possession, no change of
possession is necessary where the endowment is created by bequest ; yet
there must be the other essential incident of wakf, i e., a substantial
dedication of property to charitable uses, to come into effect .some time or
another. I 8m not prepared to hold, as at present advised, that a man's
gift to his male heirs in succession by ownership is a charitable gift in
any such sense, and, until I am corrected by higher authority, I must
decline to do so. What by this document of the 16bh March 1848,
Basharat Ali did was that for the maintenance of the integrity of his riasat
and the glorification of his family he tied up his property, directed
and limited its devolution, and prohibited all transfers of it. It
seems to me that I have direct countenance for the view I have
expressed in the judgment of tbeir Lordships of the Privy Council
[269] in the case of Sheik Mahomed Ahsanulla Ghoiodhry v. Amarchand
Kundu (l), where the whole question was very fully discussed. At page
36, appear the following passages, which I think may be conveniently
referred to by me :

" Their Lordships do not attempt in this case to lay down any precise
definition of what will constitute a valid wakf, or to determine how far
provisions for the grantor's family may be engrafted on such a settlement
without destroying its character as a charitable gift. They are not called
upon by the facts of this case to decide whether a gift of property to
charitable rises which is only to take effect after the failure of all the
grantor's descendants is an illusory gift, a point on which there have been
conflicting decisions in India.

On the one hand, their Lordships think there is good ground for
holding that provisions for the family out. of the grantor's prooerty maybe
consistent with the gift of it as wakf. On this point they agree with and
adopt the views of the Calcutta High Court, stated by Mr. Justice Kemp
in one of the cited cases. After stating the conclusion of the Court that
the primary objects for which the lands were endowed were to support a
mosque and to defray the expenses of vnorship and charities connected
therewith, and that the benefits given to the grantor's family came after

(1) 17 LA. 28.


those primary objects, that learned Judge says : ' We are of opinion that 1890
the mero charge upon the profits of the estate of certain items which must DEC. 8.
in the course of time necessarily cease, being confined to one family, and
which after theyslapse will leave the whole property intact for the original APPEL-
purposes for which the endowment was made, does not reader the LATE
endowment invalid under the Muhammadan law.' OlVlL

" On the other hand, they have not been referred to, nor can they
find, any authority shewing that, according to Muhammadan law, a gift is 13 A. 261 =
good as a wakf unless there is a substantial dedication of the property to 11 A.W.N.
charitable uses at some period of time or other. Mr. Aratboon indeed con- (1891) 18.
tended that a family settlement of itself imports an ultimate gift to the
poor, founding himself on a passage in the [270] Tagore Lectures delivered
in 1885, by a learned Muhammadan lawyer. But no authority has been
adduced for that proposition. Tne observations of Mr. Justice West, which
are relied on by the learned lecturer, do not go that length, and they are
themselves of an extra-judicial character, as the case in which they were
uttered did not raise the question. Their Lordships therefore look to see
whether the property in question is in substance given to charitable uses."

In the concluding part of the judgment their Lordships point out that
the document in question appeared in the main to contemplate aggran-
disement of the family, and not charity, and they say, " the gift in question
is not a bona fide dedication of the property, and the use of the expressions,
" fisabiiillah wakf" and similar terms in the outset of the deed, is only a
veil to cover arrangements for the. aggrandisement of the family and to
make their property inalienable."

It seems to me that that is directly in harmony with the present,
the only distinction being that that was an endowment inter vivos, while
this purports to be a " wakf" under a document to come into effect after
death. I therefore hold that no* wakf was legally constituted, and in
further support of this view I may refer to a judgment of the Bombay High
Court which is to be found in the case of Nizamuddin Gulam v. Abdul
Gafur (1), which goes fully into the question as to whether a ivakf can be
created without some express provision being made for the ultimate devo-
lution of the property in respect of which wakf is made, for some chari-
table and religious object. It has been asserted that because Imam Ali
did not in his lifetime assail the document of the 16fch March 1848, he
must be taken to have accepted and acquiesced in it. This contention was
not raised in the Court below, nor am I prepared to accept it ;
indeed the evidence en the contrary shows that, so far as his
widow and heirs were concerned, they, immediately after his death,
came into Court with a suit against Kurban Ali asserting their [271]
rights by inheritance under the Muhammadan law, and disputing the
proposition that they were bound by the terms of the document of 1848.

I am therefore of opinion that this document of the 16th March 1848
was not a ivakf by bequest, and that the plaintiffs are entitled to take
their shares as if it never existed as the widow and daughter of Muham-
mad Hadi.

There only remains the question raised by the cross-objections filed
on behalf of the respondents, as regards the learned Subordinate Judge's
order as to costs. He says in his judgment : " In determining the costs
of this case, I cannot help remarking that the present suit savours of
champerty. In this case two Mukhtars, who, as legal practitioners, ought to

A VII 22

(1) 13 B, 264.
: 169

13 All. 272



1890 have known better, are co- plaintiff a with Jumna. The greater portion of
DEC. 8. the property goes to them. Perhaps the suit would have been amicably

settled had these men kept aloof from the family dispute. Although the

APPEL- law of champerty does not apply in the mufassil, yet a Court of Equity

LATE ought to look with great disfavour upon contracts of this nature. Pleaders

CIVIL. anc ^ Mukhtars specially ought not to take up civil cases as a matter of

commercial speculation, and thereby promote unnecessary and vexatious

13 A. 261= litigation. Having regard to these facts, and taking into consideration all

11 A. W.N. the circumstances of the case, I think it is fair and equitable that parties

(1891) 18. should pay their own costs."

I really fail to understand why the learned Subordinate Judge uses the
expression ' promoting unnecessary and vexatious litigation.' Muhammad
Hadi died on the 2nd June ]875 ; this suit would have been barred by
limitation, upon the 2nd June 1887 ; and the plaintiffs were only placed
in a position to institute it by their co-plaintiffs, upon the 14th May 1887.
The Subordinate Judge's own findings satisfactorily established that the
suit was not unnecessary and that the litigation was not vexatious. On
the contrary the female plaintiffs are fully entitled to the shares by
inheritance which they claim ; and I do not see why they and those who
have assisted them should not have their costs. I dismiss the appeals in
both cases, with costs, and allow the objections of the plaintiffs with costs.
[272] TYRRELL, J. I agree with all that has fallen from my brother
Straight, and with the decree passed by him.

Appeals dismissed.

[NOTE. This case is connected with F. A. No. 142 of 1888 in which
also similar questions were in issue and the same judgment was delivered
in both cases. Of this judgment only so much had been reported as relates
to the point of law decided thereby, the former portion of the judgment
dealing exclusively with the facts of the case. W. K. P.]

13 A. 272 (F.B.) = 11 A. W.N. (1891) 61.

Before Sir John Edge, Kt. t Chief Justice, Mr. Justice Straight, Mr. Justice
Tyrrell, Mr. Justice Mahmood and Mr. Justice Knox.

AND ANOTHER (Objectors). [20th December, 1890.']

Counsel and client Authority of counsel to compromise a case on behalf of his client
Nature of powtr conferred by counsel's retainer .

A counsel, unles his authority to act for his client is revoked and such revoca-
tion is notified to the opposite side, has, by virtue of bis retainer and without
need of further authority, full power to compromise a case on behalf of his client ;
and the Court will not disturb a compromise so entered into, unless it appears
that it was entered into under % mistake and that some palpable injustice has
been thereby caused to the client. Strauss v. Francis (I), Matthews v. Munster (2),
and In re We*t Devon Great Consols Mine (3;, referred to.

[R., 6 C.W.N. 82 (86) ; 15 C.P.L.R. 73 (76),]

THIS was a reference to the Full Bench by Mahmood, J. The
circumstances under which the reference was made, as also the facts of
the case, are sufficiently stated in the judgment of Edge, C. J.

(1) L.R. 1 Q.B. 379.

(3) L.R. 20 Q.B.D. 141.

(3) L.R. 38 Ch. D. 51.



13 All. 274


EDGE, C.J. This was a reference by my brother Mahmood to the
Full Bench for expression of its opinion on a question raised as to the
authority of advocates by an application for review of a decree passed by
my brother Mahmood. The applicant on the hearing of the appeal in this
Court was represented by Mr. Spankie, one of the advocates of this Court.
His opponents [273] were represented by Mr. Conlan, another advocate
of this Court. Those gentlemen are also members of the English Bar. In
the interest of their respective clients they agreed as to the form of the
decree which should be passed by my brother Mahmood in the appeal.
My brother Mahmood made a decree according to the terms agreed upon
by those two advocates. My brother Mahmood acted under s. 577 of
the Code of Civil Procedure. This applicant for review says, what
we assume to be a fact, that be never agreed to those terms. He also
says that he bad not authorized his advocates to agree to any such
terms. The question is, could my brother Mahmood interfere under
the circumstances, review his judgment and alter his decree, dated the
23rd April 1890 ? It is not shown by the applicant, that any unjust
advantage was obtained by his adversary, or that Mr. Spankie acted
under any mistake in such a way as to produce any injustice, nor is
there any affidavit before us suggesting anything of the kind. From what
I know of Mr. Spankie it is not at all likely that he lost sight of the
interest of his client. I have no doubt that if we were satisfied that any
unjust advantage had been obtained by the other side, or that Mr. Spankie
had acted under a mistake in such a way as to produce injustice to this
applicant, we could interfere. In order that I may not be misunderstood
I had better say that what I understand as unjust advantage is not the
consenting to terms which the client may object to, and which he may
consider unjust ; but some substantial injustice which should induce us to
act. In most cases of compromise points have to be given up and conces-
sions have to be made on each side. I may say, after many years' expe-
rience at the bar, that I think a respectable and responsible advocate of
experience is a much better judge of what course he should take for the best
interest of his client than the client ever is. As an illustration as to the
length to which the Courts in England have gone in upholding the acts of an
advocate I may refer to the case of Strauss v. Francis (1), which decided
that : " it is within the general authority of counsel retained to conduct a
cause to consent to the withdrawal of a juror, and the compromise being
within the [274] counsel's apparent authority is binding on the client, not-
withstanding he may have dissented, unless this dissent was brought to the
knowledge of the opposite party at the time." I may refer also to the follow-
ing passage in the judgment of Mr. Justice Blackburn in that case (at page
381): " Mr. Kinealy has ventured to suggest that the retainer of counsel
in a causa simply implies the exercise of his power of argument and
eloquence. But counsel have far higher attributes, namely, the exercise of
judgment and discretion on emergencies arising in the conduct of a
cause, and a client is guided in his selection of counsel by his reputation
for honour, skill and discretion. Few counsels, I hope would accept a
brief on the unworthy terms that he is simply to be the mouthpiece of his
client. Counsel therefore being ordinarily retained to conduct a cause with-
out any limitation, the apparent authority with which he is clothed when
he appears to conduct the cause is to do everything which in the exercise

(1) L.B. 1 Q.B. 379,



DEC. 20.


13 A. 272


11 A.W.N.

(1891) 61.


1890 of his discretion he may think best for the interest of his client in the
DEC. 20. conduct of the cause ; and if, within the limits of this apparent authority,
he enters into an agreement with the opposite counsel as to the cause,
FULL' on every principle this agreement should be held binding." I do not
BENCH, think, I could express my views on a matter of this kind more fully or
~~ clearly than by adopting the judgment of Lord Esher in the case of
"*' Mattheics v. Munster (1), which I think correctly lays down what the

' ^""j authority of the counsel is. I mav quote the following passage from
laqi/fil that judgment ; the judgments of Lords Justices Bowen and Fry are
' ' equally instructive : " This state of things raises the question of the
relationship between counsel and his client, which is sometimes expressed
as if it were that of agent and principal. For myself I do not adopt
and never have adopted that phraseology, which seems to me to be
misleading. No counsel can be advocate for any person against the will of
such person, and, as he cannot put himself in that position, so he cannot
continue in it after his authority is withdrawn. But when the client has
requested counsel to act as his advocate he has done something more, for
he thereby represents to the other side that counsel is to act for him in the
usual course, and he must be bound [275] by that representation so long
as it continues, so that a secret withdrawal of authority unknown to the
other side would not affect the apparent authority of counsel. The request
does not mean that counsel is to act in any other character than that of
advocate, or to do any other act than such as an advocate usually does.
The duty of counsel is to advise his client out of Court and to act for him
in Court, and, until his authority is withdrawn, he has, with regard to all
matters that properly relate to the conduct of the case, unlimited power to do
that which is best for his client." Now the meaning of this passage is this
that a client employing an advocate cannot restrict the powers of that advo-
cate to bind him in the suit unless he gives notice to his opponent that he
has withdrawn or limited the authority of the advocate to act for him.
Then again : " I have said that the relation of an advocate to his
client can ba put an end to it afe any moment, but that the withdrawing
of the authority must -be made known to the other side, and this
shows that the client cannot give directions to his "counsel to limit
his authority over the conduct of the cause, and oblige him to carry them
out ; all he can do is to withdraw his authority altogether, and in
such n way that it may be known he has done so." In the case of In re
West Devon Great Consols Mine (2) in which the counsel had agreed not to
appeal on terms, and his clients questioned his right to bind them, Lords
Justices Cotton, Lindley and Bowen held that the clients were bound by
the acts of their counsel. At page 54 of the report, Cotton, L.J., is
reported to have said : " The questions were raised in argument whether
an undertaking not to appeal could be given at all by counsel without
express authority, and if it could, whether it could be given after a decision
on the merits. Now every compromise involves an undertaking not to
appeal, ic therefore cannot be beyond the authority of counsel to undertake
that his client shall not appeal. As to the other point the counsel in fact
says : 'The Judge has given a decision adverse to my client, and in con-

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 27 of 155)