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stamped paper is not admissible in evidence. " The plea was the subject of
the sixth issue in the lower Court, and was disallowed by the Subordinate
Judge for reasons in which I concur. The deed itself is before us, and it
opens with the following words :

" I, Sheikh Muhammad Ali, son of Sheikh Ali Bakhsh, resident of
Lucknow, while in the enjoyment of sound health and senses, write these
lines by way of a will, the execution of the provisions whereof shall rest
with my executor after my death that the under-mentioned four villages t
&c. "

These words in themselves leave no doubt that the instrument was-
intended by the executant to be a testamentary disposition of the property
to which it relates. It was registered as a will by Mr. Frederick Lincoln,
the Sadar Eegistrar of Lucknow, on the 7th of [444] November 1863,
and it has ever since been dealt with as a will by Musammat Kanizak
Fatima, the only heir of the testator, Muhammad Ali. For instance, in
paragraph 4 of her own will of the 14th of October 1881, she uniformly
refers to her father's deed of the 3rd of November 1863, as " the will of
my father, Sheikh Muhammad Ali, deceased," and the provisions of the.
deed itself show that it was intended to be a testamentary instrument.
I have no doubt therefore that the Subordinate Judge was right in holding

651



14 All.



INDIAN DECISIONS, NEW SERIES



[Vol.



1892

MAY 9.

FULL
BENCH.

14 A. 429

(F.B.) =
12 AWN.
(1892) 187.



that the instrument did not require stamp, and that it was admissible in
evidence.

Freed from these minor points the contention between the parties,
so far as it has been urged here, raises the following substantial questions
for determination :

(l). Is a ivaqf-bil-wasiyat or testamentary wagf valid under
the Muhammadan law of Shia school in the absence of actual delivery
by the waqif himself of possession of the appropriated property to the
mutawalli or the person appointed as superintendent thereof by the deed
whereby the waqf is created ?

(2). Does the death of & waqif (appropriator) before actual delivery
of possession by him to the mutawalli or the beneficiaries of the trust
invalidate the tvaqf so as to render it null and void ab initio under the
Shia law ?

(3). If so, does the consent of the appropriator's heirs to testa-
mentary waqf validate such waqf under that law ?

(4). Did the deeds of the 3rd of November 1863 and the 27th of
November 1863, executed by Muhammad Ali create a valid waqf under
the Shia law ? and was actual effect given to them by Muhammad Ali
himself during his lifetime, and after his death by his daughter and only
heir, Musammat Kanizak Fatima?

(5). Upon the death of Muhammad Ali on the llth of December
1863, did Musammat Kanizak Fatima obtain possession of the property
now in suit by right of inheritance as the sole heir of her father, or as
successor to him as mutawalli of the waqf property ?

[445] (6). Does Musammat Kanizak Fatima's will of the 14th of
October 1881 amount to a fresh waqf of the property in suit of which she
appointed herself the mutawalli for life, and after hear death, her son and
daughter, Agha Ali Khan and Musammat Amina Begam ? and if so, was
she entitled to alter the provisions of her father's will of the 3rd of
November 1863 ?

(7). What is the effect of the ikrarnama executed by Agha Ali Khan
(plaintiff No. 1) upon his right to contest the validity of his mother's
will of the 14th of October 1881, so far as the property now in suit is
concerned ?

(8). Was the codicil of the 22nd of October 1884, executed by
Musammat Kanizak Fafcima as supplement to her will of the 15bh of
October 1881, valid, and within her legal powers ?

(9). Was the lease of the 22nd of October 1884-, executed by Musam-
mat Kanizak Fafcima in favour of her grandson, Sardar Husain, in respect
of the villages in suit valid ?

(10). Are the plaintiffs, or either of them, entitled to oust the defend-
ant, Sardar Husain, from possession under the lease of the 22nd of Octo-
ber 1884, or to exclude Musammat Amina Begam from her position as
mutawalli of the wagf property now in suit, under Musammat Kanizak
Fatima's will of the 14th of October 1881 ?

(11). Is there any such misfeasance or incompetency Droved against
Musammat Amina Begam as would entitle Agha Ali Khan (plaintiff No. 1)
to exclude her from the joint mutawalliship of the waqf property now in
dispute?

652



YII] AGHA ALI KHAN V. ALTAF HASAN KHAN 14 All. 447

In my opinion the first of these questions is by far the most impor-
tant as regulating the decision of this case. The second and third ques- MAY 9,
tions are closely connected with the first and require consideration before
i& becomes necessary to decide the remaining questions in the case as FULL
above formulated. BENCH,

Upon the first three questions authorities have been cited on either "

side, but the terms in which these authorities and the Shia law not'
express the rule are so much in discord with the doctrines of [446] iww
the Sunni school of the Muhammadan law that I think that the ' '

questions above referred to should be considered by a Full Bench of this *
Court. I may say that on behalf of one side of the question Pandit
Sundar Lai has cited passages from Mr. Justice Ameer Ali's work on
Muhammadan law, being theTagore Law Lectures for the year 1884. On
the other side of the question are passages to be found in the original Arabic
works of high authority in the Shia law which do not seem to support the
argument for the plaintiff so as to leave it undoubted whether or not a
testamentary loaqf is allowed under the Shia law. I will therefore refer
the first three questions to the Fall Bench with the recommendation that
the case should be laid before the learned Chief Justice for orders on the
opening of the Court.

On the reference being heard by the Full Bench the following judg-
ments were delivered :

Munshi Ram Prasad, Pandit Sundar Lai, and Babu Durga Charan,
for the appellants.

Mr. Karamat Husaiu, for the respondents.

JUDGMENTS.

IvlAHMOOD, J. The preliminary facts from which the questions of
law now under consideration have arisen have bean stated by me in my
order of refereuca dated tha 1st of Ojtobar 1890 ia which Mr. Justice
Young conourreJ. I need not therefore repeat those facts, and I think
it is enough to say that the points referred to the Full Bench are the
following :

(1) Is a waqf-bil-wa&iyat, or testamentary waqf valid under the
Mubammadan law of the Shia school in the absence of actual delivery
by the waqtf himself of possession of the appropriated property to the
mutaiualli or the person appointed as superintendent thereof by the deed
whereby the waqf is created ?

(2) Does the death of a waqif (appropriator) before actual delivery
of possession by him to the mutawalli or the beneficiaries of tho trust
invalidate the waqf so as to render it null and void ab initio under the
Shia law?

[447] (3) If so, does the consent of fche apporpriator's heirs to testa-
mentary loaqf validate such waqf under that law ?

In considering the first of these questions it will be convenient to
ascertain in the first place the exact nature and constitution of waqf a&
understood, in the Shia law. The Sharayi-ul- Islam thus describes a
waqf :

" Wakf is a contract the fruit or effect of which is to tie up tha
original of a thing and to leave its usufruct free. The only express word
by which it can be constituted is ' Wukufto' (I have appropriated), for with
regard to ' Hurrumto ' (I have consecrated), and ' Suddukto '(I have bestow-
ed), they are not sufficient to constitute tvakf without accompanying.

653



14 All. 448 INDIAN DECISIONS, NEW SERIES [Yol.

1892 circumstances, as by themselves they are susceptible of another interpre-
MAY 9. tation besides wakf." (Baillie's Imameea Law, p. 211.)*

The most important point to be noticed in this definition is the word

FULL contract which Mr. Baillie in his translation, and I, after having consulted
BENCH, the original Arabic, agree in thinking is a correct equivalent of the word

^l t' > 429 aqd ( *** ) which in the Latin phraseology of English law might ba

(f.B,)="

12 A.W.N. rendered by the word pactum. The importance of this explanation lies
(1892) 187, in the circumstance that the incidents of waqf under the Shia law are
vastly different from those of the Sunni law on some of the most radical
points, and since such distinction will enable me to make my meaning
more clear I will quote a passage from the Fatawa Alamgiri, accepting the
translation of Mr. Baillie which I have compared with the original:

" According to the two disciples wakf is the detention of a thing
in the implied ownership of Almighty God, in such a manner that its
profits may revert to or be applied for the benefit of mankind ; and
the appropriation is obligatory, so that the thing appropriated can neither
be sold, nor given, nor inherited. In the Ayoon and [448] Yutuma it is
stated that the futiua is in conformity with the opinion of the two
disciples." (Baillie's Hanifeea Law, p. 558.)*

It will be observed that whilst under the Shia law waqf is a con-
tract, under the Sunni law it is a unilateral disposition of property, and
as such not subject to the rules of contract. This is shown from the
following passage in the Fatawa Alamgiri, the substance of which has
been correctly rendered by Mr. Baillie in the following words :

" The pillars of wakf are special words declaratory of the appro-
priation, such as ' I have given this my land,' or ' bequeathed it as an
appropriated and special Sudukah or charity.' Its cause or motive is a
' seeking for nearness.' And its legal effect, according to the two disciples,
1 an abatement of the appropriator's right of property in the thing appro-
priated in favour of Almighty God,' and, according to Aboo Huneefa, ' a
detaining of it in the ownership of the appropriator.but without the power
of alienation,' and ' a bestowing of its produce in charity." (Baillie's
Hanifeea Law, p. 559. )t



*(

I**



u ! 3

\ ^ x 3



iJlJU



651



VII] A6HA ALI KHAN v. ALTAF HASAN KHAN 14 All. 450

It is a general rule of infcerpretafcion of the Sunni law that when 1892
there is a difference of opinion between Imam Abu Hanifa and his two MAY 9,
disciples, Qazi Abu Yusuf and Imam Muhammad, the opinion of the
majority prevails and the passage from the Fatawa Alamgiri which I FULL
have first cited shows that in regard to the nature, [449] effect and con- BENCH.

stitution of waqf, the opinion of the two disciples is the one which has

been adopted and prevails. * * *^9

Now, the distinction which thus exists between the Sunni and Shia (I "' B ') s -
law must not be lost sight of, as some of the texts and cases cited in 12 *- w -N.
the course of the argument proceeded upon the Sunni law and not upon (*882) 187.
the Shia law. Perhaps the most notable of these cases is Wasiq Ali Khan
v. The Government (1) which, though a case relating to a Shia waqf,
namely, the celebrated endowment under the will of Haji Muhammad
Mohsin for the Imambara at Hoogly, was dealt with by the Sadr
Diwaui Adalat upon the principles of the Sunni school of Muhammadan
law which was then prevalent as the Muhammadan law administered by
the Courts of British India. The case was dicided so long ago as the
22nd of September 1836, and I seriously doubt whether in those days
the Shia law was ever administered by the Courts of British India as
the rule of decision, even when Shias were concerned. Mr. Baillie at the
outset of the introduction to his Imameea Law describes the history
of the manner in which the Shia law came to be recognized in India,
and I think I may safely say that it was not till the ruling of their
Lordships of the Privy Council in Raja D&edar Hossein v. Ranee Zahoor-
con-Nissa (2), decided in 1841, that the enforceability of the Shia law by
the British Courts in India was placed upon a firm footing. In that
case their Lordships in dealing with an enactment in pari materia with
s. 37 of our present Civil Courts Act (Act No, XII of 1887) went on to
say (vide p. 478) :

"It is true that the Soonee law has generally prevailed, because the
great majority of the Indian Muhammadans are Soonees, there being very
few families of the Sheeah sect, except those of the reigning princes, which
will account for the prevalence of the Soonee doctrines in the Courts, but
there is no practice which excludes the application of the Sheeah law to
the rights of persons professing the tenets of that sect, The natural and
equitable construction of the Eegulation therefore must prevail."

[450] It was indeed in view of this ruling of the Lords of the Privy
Council that in Abbas Ali v. Maya Ram (3), which was a pre-emption case,
Mr. Justice Straight agreed with me in applying the strict Shia law,
though my opinion required dissenting from two previous Division Bench
rulings of this Court referred to in my judgment.

I have been anxious to place this preliminary point upon a footing
which is conducive to preventing my judgment from being misunderstood,
because, whilst on the one hand, if the questions which are before the Full
Bench were questions of the Sunni (Hanafi) law, they would probably
involve neither doubt nor difficulty ; on the other hand, being questions
governed by the Shia law, they are far from being simple questions, and
in this judgment I will deal with them strictly according to the Shia
doctrine as enunciated in the authoritative law works of that sect.

Now I have already said that the Sharayi-ul- Islam which is the most
authoritative text-book of the Shia law, deals with waqf&s a contract (aqd

(1) 6 8. D.A. Bel. Rep. 130. (2) 2 M.I. A, 441, vide pp, 477-8,

(3) 12 A. 229.

655



14 All. 451 INDIAN DECISIONS, NEW SERIES [Yol,

1892 >**;, an d I now proceed to show that the result of this doctrine as it

MAYJJ, k aa j oeen aooep t; e( j by authoritative commentators and writers on the Shia

FULL 1 &W na9 b een fco oreate complications of detail as to its constitution and

incidents which require consideration in this case. The Masalik-ul-Afham,.

BENCH. a celebrated and authoritative commentary on the Sharayi-ul-Islam, as

14 A. 489 also the Jawahir-ul-Kalam, another authoritative commentary on the same

(F.B.) = text-book, throughout deals with waqf as a contract inter paries asdistin-

12 A.W.N. guished from unilateral dispositions of property.

U892) 187, Perhaps the best way to indicate this is to quote and refer to tha

Jami-ul-Shattat, in which three important points relevant to the present
discussion are stated in the form of a question which runs as follows :

" Question : Is the formal expression (sigha) necessary in appropria-
tion ? Is it a contract requiring offer and acceptance, or a [451] mere
declaration ? and is the intention of a desire to draw near to God
essential ?"*

The points raised in the above question when analysed are three, and
they may be stated in the interrogative form to be the following :

(1) Is the use of formal technical expressions necessary for creation
of waqf ?

(2) Is waqf a form of contract (aqd, ***, pactum,) needing offer and

acceptance, or a declaration dqa' auni < & ' lateral disposition of property}?

(3) Is the intention of a desire to draw near to God essential ?

All these three points have been discussed at length in the Jami-ul-
Shattat in the chapter on waqf at pp. 332 and 333 of the Tehran edition ;
but since the work is in print and available to the public, ib would be
unnecessarily lengthening my judgment if I were to quote a whole
page of a folio to show the meaning which I take from 4hat work.
content myself by saying that upon each one of the three points above-
mentioned the final answers given by the text are the following, and these
I state seriatim :

Upon the first point in the question thus enunciated the answer is
thus worded :

" Yes, the use of formal technical expressions is an essential condition,
and without it waqf is not established."!

Upon the second point the answer is thus worded :

" Waqf is a contract needing offer and acceptance. "t But whilst
thus generally expressing the necessity of the contractual [452] forma-
lities of offer and acceptance, the text goes on to explain how in some
cases exceptions are to be made, and in dealing with these exceptions
the author, meeting the difficulty which arises out of the word igaa <*>'>
which in English means ' declaration,' or rather ' unilateral disposition of;
property," goes on to explain that



if O>,^AF wU j| j 4J l> OH *>_



f



656



YII]



AGHA ALI KHAN V. ALTAF HASAN KBAN



14 All. 453



The meaning of aqd,, cva contract, here covers declarations
unilateral disposition)." *



(iqa'a,



1892

MAY 9.



But in thus extending the ordinary technical legal meaning of the FULL
word aqd, ^ (which means contract needing offer and acceptance), the BENCH.



learned author is anxious to explain that the extended meaning applies
only to certain classes of wjqf, and, after dealing with the various opinions
upon the subject, arrives at the conclusion that acceptance may he
dispensed with in cases where such acacptance is impossible, such waqf
being for public charities, such as a mosque or maintenance olfaqirs, that
is to say, the general pauper public.

This is the general substance of the answer given to the second point
above enunciated according to the Jami ul-Shattat.

As to the third point, namely, whether the intention of a desire to
draw near to God is essential, the J ami- ul-Shattat, after stating differences
of opinion gjes on t} say :

'' The accepted opinion is rendering it (i.e., intention of a desire to
draw near to God) a condition, by reason of the absence of validity and
uncertainty of the ivaqf without such intention and desire."!

This then is the effect of the doctrine in the Jami-ul-Shattat. That
same doctrine is better and more tersely explained in the Durus, a work
of higher authority than the Jami-ul-Shattat in regard to the same matter.
The necessity of the use of formal technical expressions for creating a
waqf baing accepted on all [453] hands, the author of the Durus deals
with the other two points, and I will quote from him presently.

As to the necessity of the intention or desire to create a waqf he lays
down a rule of common sense conformable to the rules of law and equity
as understood not only in England but also in this country and in Muham-
madan jurisprudence in general. After stating that the waqif or the ap-
propriator should not be under any legal disability and thus competent to
enter into a legal contract, the author goes on to state as the second con-
dition of the validity of a waqf that " It is necessary thab there should
exist an intention, an! therefore ib cannot be established by one who is
unconscious or asleep or drunk."*

Then, in dealing with the question of acceptance of a wagf the
authority is equally clear upon whab his baen described by me already as
to the second point in the question raised in the Jami-ul-Shattat, namely
whether waqf being a contract needs offer and acceptance as the essen-
tial conditions of its validity under the Shia law.

Upon ibis point the Durus is perfectly clear, all the more so as it is
fully consistent with the Shia doctrine of regarding waqf as a contract



(aqd t



subject. The author of the Durus, recognising the necessity of keeping
pace with the requirements of contracts anl feeling the necessity of finding
that in some cases of waqf whilst thsre is an offer there is no possibility



11 A. 129

(F.a.)-

12 A.WN,
(1892) 187.



) as contra-distinguished from the Sunni doctrine upon the sama



A. VII-83



657



14 AU. 984 INDIAN DECISIONS, NEW SERIES [Vol.

1892 of-lacceptance, and at the same time desirous of maintaining the waqf
MAY 9, under such circumstances, goes on to explain the doctrine in the following

words as the fourth condition governing such alienations :

FULL " The fourth condition is acceptance, which is correlative to

BENCH, offer when it is possible for those in whoso favour the waqf has been

"-" made, Acceptance is not rendered necessary in the case of mendicants nor

* ' [484] in the case of public charities because of the impossibility of

9 i W"H seour ^ D S acceptance."*

It must therefore be taken that the Shia law recognises waqf not as

' ' a unilateral disposition of property, as it is recognised in the Sunni law,

but as a contract which, according to the requirements of juristic

notions, irrespective of either of these two systems, must be a transaction

inter vivos, and this ex necessitate rei.

I will refrain from expatiating upon this point of jurisprudence
because, having once laid down, as I have already said, that a waqf under

the Shia law is regarded as a contract (aqd, ** f ) requiring, at least in

its general form, offer and acceptance, the rules which follow from such
a doctrine must be interpreted conformably with such a notion.

This leads me to the latter part of the first question as referred to
the Full Bench, which, indeed, is the turning point of this case namely,
whether actual delivery by the waqif himself of the appropriated property
to the mutawalli, or the person appointei as superintendent thereof, is
essential to the validity of the waqf itself.

Upon this point, which, as I have already said, is the turning point
of the case, much depends. The first point to ascertain is whether under
the Shia law of the transfer of property known as waqf there is any
distinction'between transfers of property which require tanjiz, '#?**>, and
those which do'not require tanjiz, >*;;, tnat iSi i mm0 3j a fc Q operation of

the transaction absolute and unconditional.'

The Sharayi-ul-Islam in describing the rule as to waqf goes on to
say :

"Conditions that relate to the wakf itself, which are four in
number : First, it must be perpetual ; second, absolute and unconditional ;
third, possession must be given of thomowkoof, or thing appropriated, and,
fourth, it must be entirely taken out of the [455] waqif or appropriator
himself. So that if the appropriation is restricted to a particular time or
made dependent on some quality of future occurrence, it is void." (Baillie's
Imameea Law, p. 218.)*

So far as the question of tanjiz^ J^JJ (which I have already inter-
preted) is concerned the Jawahir-ul-Kalam is more explicit. It says :



[VII AGHA ALI KHAN V. ALTAF HASAN KHAN 14 All. 456

" Similarlyiyou have heard more than once that tanjiz, or to make a 1892

contract to take effect immediately, is necessary in every cause of legal MAY 9,
results, save those which have been excepted (by the authority of law),

and that appropriation is void if suspended on an uncertain or even certain FULL

future event. There is no difficulty or difference of opinion (on the BENCH.
necessity of tanjiz)." <C (Jawahir-ul-Kalam Book of Appropriation, Tehran

edition.}* A. 429

From this text it is clear that waqf being dealt with by the author (ff.B.)*-

12 A W N

as a contract, he lays down that tanjiz ,vw, is an essential condition ,,'."'

-^" (1892) 187.

of the validity of a waqf. The matter is even more fully explained
in another work of high authority in the Shia law, namely, the Jami-ul-
Maqasid, which runs as follows in regard to waqf i

" Its conditions are tanjiz ) : y*?, perpetuity, delivery of possession,

and its exclusion from the ownership of bheiuaqif, appropriator, himself and
an intention of nearness (to God). In regard to waqf, other matters are
also conditioned ; one of them is tanjiz, ^ J F li , and therefore if he has

suspended it upon any condition or quality like his saying 'when Zaid
arrives I have certainly [456] : appropriated my house,' orj when the
beginning of the month arrives, I have made a waqf of my slave, it is
invalid by reason of the absence"'of absolute certainty of it, in the same
manner as in the case of sale and gift rendering them contingent invali-
dates them,""

To these texts I may add another, which shows how strictly the Shia

law regards waqf as a contract and renders tanjiz, x^' } an essential

condition for its validity. The Sharah Lamah Damishkia, a work of high
authority, has the following :

" Besideg above-mentioned matter?, tanjiz &**>, is one of its hvaqfs)

conditions. Therefore, if he has suspended it upon any contingency or
quality it is void, except in cases when the contingency already exists
nnd the tuaqif (appropriator) is aware of its existence, such as his saying



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 98 of 155)