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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 99 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 99 of 155)
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' I have made this waqf if to-day is Friday, such as is the rule in regard
to other contracts."!

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659



14 All. 457 INDIAN DECISIONS, NEW SERIES [Yol.



1892 Now it is clear from these texts that the doctrine of tanjiz, *(*$

MAY 9
___ ' which is unanimously approved by the highest authorities of the Shia

FUit l aw ' requires as one of the essential conditions precedent to the validity

-jj of a waqf that it should not be rendered contingent upon any future

_ ' event, whether such event is likely or possible to occur, or even where it

A. 420 is certain to occur, such as the beginning of the next month or the

(P B.)- occurrence of the death of the waqif, i.e., the appropriator.

l!2 A.W.N. I now proceed to explain how this doctrine practically operates,

,(1892) 187. imposing, as it does, the stringency which I have described. The

[457] best illustration of the application of the rule is the question of

delivery of actual possession by the waqif himself of the appropriated

property to the mutawalli or the person appointed as superintendent of

the waqf property.

Upon this point I again take the text of the Sharayi-ul- Islam and
its two recongnised commentaries of the highest authority. The text of the
Sharayi-ul- Islam and the explanation thereof in the Masaiilc-ul-Afham
are thus worded :

" A waqf does not become obligatory except by delivery of possession".
(Sbaraea, p. 234, Calcutta edition.)*

"Tha author says, -'A waqf does not become obligatory except by
delivery of possession. ' There is no difference of opinion among our
.masters in the matter of seisin being a condition for the validity of a waqf.
So it does not become a contract without seisin in the same manner as it
does not become a contract by a proposal without acceptance or vice, versa.
Thus seisin forms a part of the cause by which the transfer of ownership
is effected. This does not appear from the wording of the author as it
negatives obligation. But he will soon, hereafter, state expressly what we
have mentioned where he says in the 4th section that seisin is a condition
for the validity of a waqf. The use of this principle appears in the case of
accession, if any, between the contract and seisin, for it (accession) is for
fhe waqf as we have s-hown. It is obvious that the fact of seisin being
a condition for obligation is not inconsistent with the accession being for
the benefit of the miukuf-alaih (banefioiary) ; the reason being that the
waqf is constituted though it is not binding ; for regarding the ownership of
accession obligation has no importance, so much so that the contract effect-
ing the transfer is constituted, though such contract, is optional in the
opinion of the author and other doctors, as the principles of optional sale
and the like tend to show, It may be perhaps that by negativing
the obligatory character of a ivaqf in the absence? of seisin, "the author
meant to contradict some of the common people (Sunnis) who hold that
[458] a waqf becomes obligatory 'merely by using the word, though posses-
sion may not have been obtained ; and, therefore the author has used such
words as contradict that person expressly, without having regard to the
inference to be drawn from the signification thereof, and then after that
he has expressed what he meant. " (Masalik ul-Afham).'''



a.



660



AGHA ALI KHAN.V. ALTAF HASAN KHAN 14 All. 459



More explicit on the subject of delivery of possession as a condition
precedent to the validity of a waqf under the Shia law is the commentary
of the Sharayi-ul-Islarn, the Jawahir-ul-Kalam, which, dealing with the
text, runs as follows :

" So a contract of waqf does not become obligatory except by delivery
of possession, which means seisin by permission ; therefore it is competent
for either of the two (foewaqifov ihemaukuf-alaih) to put an end to it before
seisin. This is however not incosistent with seisin being one of the con-
ditions for validity used in the sense of the production of the effect or the
fact of the maukuf-alaih becoming the owner of profits, &o., as explained
hereafter by the author and others : nay, the learned even have deduced
therefrom that a waqf becomes void by the death of the waqif before seisin
and other principles. The necessity (of saying that a waqf contract does
not become obligatory except by delivery of possession) is the [459] object
to state here either that before seisin it is not, as some common people
(Sunnis) say it is, obligatory, or that it does not follow from the happening
of the contract that delivery of possession which is one of the conditions of
validity is compulsory : though this (that delivery of possession is
compulsory) has been imagined in consequence of the resemblance of the
subject (waqf) by reading together the words of God, the Moat High,
'fulfil (your promises)' and the argument which shows the importance
of possession for validity which means the constitution of ownership and
the like. The reason (for the view that ' it does not- follow *
is compulsory ') is that although the words'of God negative the originality
of exemption, &c., yet they are not in conformity with the argument which
almost evidently shows the importance of possession : nay, Azir * even
evidently shows that cancellation before obtaining a possession is lawful,
and -that the waqif does not (thereby) commit a sin.- 'I asked,' says
Safwan in his book called the Sahih, ' about a person who made a waqf
of anTestate, and in whose mind it entered afterwards to make some
alteration in the waqf.' Thereupon Abul Hasan said, 'if the person made
a waqf of the estate in favour of his children and others, and appointed a
manager of the estate, it is not open for him to revoke : if they (the maukuf-
alaihim) are minors^and having stipulated the superintendence thereof on
their behalf till their attaining majority, manages the estate on their
lehalf, it is not open for him to revoke the transaction. If they are of age
and he did not deliver the estate to them, while they did nob litigate for
taking the management thereof from him, then it is open for him to revoke
the transaction": because, notwithstanding their being of age, they do not
take the management thereof from him." There is a report from Asadi of
the answer to his questions, received by him from Umri, who received the
same from the Imam of the age (Imam-i-Mahdi), may my life be sacrificed



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1892

MAY 9,

FOLL
BENCH.

14 A 429
JF.B.)-

12 i .*..

187,



' The name or abbreviation of the name of some book,
661



14 All. 460 INDIAN DECISIONS, NEW SERIES [Yol.

1892 for him ! (The reporb is as follows) : As to your question about a person

MAY 9. who makes a waqf in our favour.and makes the property ours, and, who after-

wards requires it, the owner [460] of the property is at liberty as regards

FULL the property which has not been made over ; but as regards the property

BENCH, which has been made over the owner is not at liberty, whether he require

~ it or not, and whether he stand in need of it or is indifferent to it.' Further

iv B i " On ^ e ^ man f kbe a e ) sa ^ : ' As ' vour Question regarding a person

i' ' ~~ who has made an estate ours and made it over to a manager who manages

* L 07 *' Peoples it, piys out of ibs income the Government demand (khiraj)

192) 187, pgyabig i n respect thereof and its liabilibies, and makes the remaining

income ours, all that is lawful for the parsDn whom the owner of the estate

has appointed as the manager thereof, bub not for a parson other than him.'

Bat the two traditions, as you see, do nob directly, or evan apparently,

show i that seisin is a condition for the validity used in the sense of the

production of effect, which is ownership and the like ; because the two

traditions are necessarily in conformiby with each other in showing that

seisin is a condition for obligation. The use of the principle appears in

an accession made between a contract and seisin. Bub in (*) and (!) it

is denied repeatedly that there is any difference of opinion as to seisin

being a condition for validity ; nay, the two books even show that the

opinion ia unanimous." (Jawahir-ul-Kalam}.\

[461] Similar is'the effect of another work of high authority in the
Shia law, namely, the Sharah Lamah Damishkia, which I now quote,
not only as relevant to the point now under consideration, namely, the

f Abbreviations of the names of some books.



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662



YII] AGHA ALI KHAN V. ALTAF EASAN KHAN H All. 462

necessity of delivery of possession, but also as introductory to the next 1892
step of reasoning, which I shall adopt in this judgment relating to testa- MAY 9.
mentary power in the Shia law for creation of waqfs. The Sharah Lamah
Damishkia runs as follows: FULL

'' The waqf does not without seisin become obligatory after the com- BENCH.
pletion of the words constituting it. So if a loaqf be made for a public
purpose, the superintendent of the waqf property or the ruler, or the manger ** * * 2 *
appointed by the waqif to take possession thereof, should take possession
of it, the happening of such possession will be recognized if it happen by
the permission of the waqif because disposition of another's property is (* 892 ) **"
prohibited without his permission. The fact is that a waqf property is
not at all transferred to the maukuf-alaih (beneficiary) without seisin.
If the waqif die before possession for which he gave permission the waqf
becomes void. A tradition reported from Obeid, the son of Zurarah, is
clear on this point, and it shows that immediate Dossession is not impor-
tant. Apparently the same is the case with [462] the death of the
maukuf-alalh, though there is possibility that his heir may stand in
his place. From the negation of obligation by him (the author of
Lamah) it may be understood that the contract is valid before seisin,
so that the transfer of ownership is unsure and becomes absolute
by means of seisin : other authors have said so in express terms. It is
apparent from the "Durus" that seisin is a condition for validity. The
use of this principle appears in the case of accession between the contract
and seisin. Obligation may possibly be taken here in the sense of validity
and it is inferred from the circumstance that a waqf is said to be void
if the waqif dies before seisin, which circumstance is due to invalidity
and not to the absence of obligation. So it is stated in the chapter on
"Gift" in the "Durus." From what soma of the masters have said in this
matter it appears that the author may have meant (validity)." (Sharah
Lamah Damishkia).*



LJ |5^|i' ^aa-aJLO'C .^aCJU^j^ t_JJj jj's ilo



663



14 All. 463 INDIAN DECISIONS, NEW SERIES [Yol.

1892 Briefly stated, the effect of these texts is to sustain tha following

MAY 9< propositions :

(1) That the Shia law (as distinguished from the Sunni doctrine)
regards waqf as a transaction falling under the category of contract
BENCH, (aqd, .**,' pactum) inter vivos.

II A. 429 [463] (2) That tanjiz, **:** (i.e., immediate operation of the transac-

12 A W N ki n a b3lute and unconditional), 'is one of its essential elements.
(1892)187 ^ That actual delivery of possession by the wag if (i.e., appropriator)

himself or by his permission is a condition precedent to its validity aud effect.

(4) That acceptance by the beneficiaries of the waqf is essental for
its validity, except in cases where by the very nature of the waqf such
acceptance is impracticable, such as in the case of a mosque and charitable
endowment in favour of mendicants in general (faqirs, f^a' ) that is, the

indigent public.

(5) That suspension of a waqf, that is, the rendering its operation
contingent upon any future event, be that event certain to occur or un-
certain to occur, is absolutely void.

Then comes the last part of the case so far as the first question referred
to the Full Bench is concerned : and I think it can be conveniently dealt
with along with the second question referred to the Fall Bench, because
the original texts of the Shia law are common to both. The turning point
is the extent of the testamentary power in the Shia law as to the creation
pf waqfs, that is to say, the power to render such transfers of property
yalid without delivery of possession inter vivos. Upon the general
testamentary power of the Shias the ruling of the Privy Council in Nawab
Aminood-dowlah v. Syud Roshun Ali Khan (1) was cited, and it was there
bold that a nuncupative will by a Muhammadan of the Shia sect bequeath-
ing property less in amount than one-third of his estate was valid, and
that such bequest would have been valid even if beyond a third of the
testator's estate, provided the heirs concurred in the bequest.

I have mentioned this case because it is the principal judicial
authority cited in support of the proposition pressed on behalf of the
plaintiffs that under the Shia law, notwithstanding the fact that [464]
tuaqfissk contract, notwithstanding the fact that taw.; 12 jt^**, anddelivery

of possession are its essential conditions, yet waqfs may be created by
testamentary disposition without immediate operation and actual delivery
of possession of the appropriated property.

Now I proceed to show from the most authoritative texts of the Shia
law itself that this contention is unsound and proceeds upon obliviousness
of the exigencies of the contract of waqf as understood under that law.
I will first quote the authorities and then discuss them.

The first authority which I quote is the Sharayi-ul- Islam together
with its commentary the Masalik-ul-Afham.

These texts are as follows :

" Saisin is a condition for the validity of a waqf. So if a person
make a waqf and then die without delivering possession, the waqf property
shall become a heritage." (Sharayi-ul-Islam, Calcutta edition, p. 237.)*

(1) 5 M.I.A. 199.



YII] AGHA ALI KHAN V. ALTAP HASAN KHAN 14 All. 466

" Seisin is a condition for the validity of a waqf * *. There is no 1892 -
difference of opinion among us as to seisin being a condition for the MAY 9,

completion of a waqf as regards its taking effect. This means that the ,,

transfer of ownership depends upon proposal, acceptance and seisin. So a FULL

contract forms a part of the cause effecting the transfer and seisin completes BENCH,

it (the cause). Hence before possession a contract is valid in itself ; but

the transfer of ownership is not effected thereby, and therefore it may be *

revoked before seisin aud is rendered void by death before seisin. The * Fl .'/ =

accession made between a contract of waqf and seisin is for the waqif. A.W.N.

This shows that seisin is one of the conditions for the validity of a waqf, ' 87t

as stated by the author and many others. But some of the jurists state that

seisin is a condition for obligation. They, however, do not mean anything

other than what we have mentioned, though the word 'obligation' gives.rise

to the possibility of the contract being complete, effecting a transfer of

ownership not [465] obligatory in its nature, as in the case of the ownership

of a thing sold during tha period of option ; whereas on such a supposition

an accession made in the interval would be for the transferee, and such is

not the case here unanimously. By the fact of seisin being a condition for

obligation the author has meant nothing beyond that either the contract

is neither complete nor so obligatory as to take effect, or the transfer is

not obligatory and is not constituted without seisin or the like. That it is

lawful to revoke a waqf before seisin according to all opinions appears

from a correct tradition reported by Safwan, son of Yahya, from Abul

Hasan (peace be with him !) Safwan says : ' I asked him (Abul Hasan)

about a person who made waqf of an estate, and in whose mind it entered

afterwards to make some alteration in the waqf.' Thereupon Abul Hasan

said : " If the person made a waqf of his estate in favour of his children

and others, and appointed a manager of the estate, it is not open for him to

revoke. If they (the maukufalaihim) are minors, and having stipulated the

superintendence thereof on their behalf till their attaining majority manages

the estate on their behalf, it is not open to him to revoke the transaction.

If they are of age and he did not deliver the estate to them, while they did

not litigate for taking the management thereof from him, then it is open for

him to revoke the transaction; because, notwithstanding their being of age

they do not take the management thereof." That a ivaqf is rendered void by

the death of the waqif before seisin appears from a tradition reported by

Obeid, son of Zurarah, from Abu Abdullah that in the matter of a person

who made sadaqah in favour of his children who were of age Abu

Abdullah said : ' If they did not take possession till he died, the

property becomes an heritage : but if he made a sadaqah in favour of his

child who has not attained majority it is valid ; because it is the father

who controls the child's affairs.' The masters have understood from the

tradition that sadaqah means waqf, and they use it as an argument for

what we have mentioned ; though there is a possibility of the word

sadaqah being used in its particular sense, in which case the tradition

[466] is no argument. It (that sadaqah means a waqf is supported by

what Abu Abdullah said at the end of the tradition, namely, that a person

' cannot revoke a sadaqah if he made it to seek the favour of God, the Most

High,' which provision is applicable to a sadaqah- i-ammah (public charity)

specially, and not to a waqf. It is obvious that the death of a maukuf-

aliah (beneficiary) is like the death of a waqif (author of trust) ; for such

being the case with an optional contract, the same case will a fortiori be

with one whose ownership is not complete ; but the learned have contended

themselves with what has been reported. There is a possibility here of the

665
A VII 84



14 All. 467 INDIAN DECISIONS, NEW SERIES [Yol.

1892 second generation representing the maukuf-al-alaih as regards seisin. The

MAY 9. distinction between the two deaths is that the death of the waqif transfers

his property to his heir, and this necessitates voidness, in the same

FULL manner as if he has transferred his property in his lifetime : but the case

BENCH, is different with the death of the maukuf-aliah, in which case the pro-

- _ perty remains in its original state and has not been transferred to another

21 B owing to imperfeotness of ownership. The author of - (1) has hesitated as

(F.B.)= j. Q j. Qe yajjdjty o { a W agfiu case the second generation take possession ; but

' *"'" he (the author of the book) has not mentioned it in any other book, nor as

8 '' any person other than the author mentioned ib. Lunacy and swoon are

treated like death. Now, this having been settled, the seisin deserving con-

sideration here (in way/) is the same that deserves consideration in sale, and

we have shown it there. There more forcible opinion is that immediate seisin

is not necessary, because of the constitution of the origin and the absence

of any argument showing ib (the importance of immediate possession).

The above two traditions direct to it (immediate seisin not being neces-

sary), because voidness in the absence of seisin has been suspended till

death, which fact proves that seisin, whenever obtained before death, is

sufficient. There is a possibility of immediateness being worthy of con-

sideration, because seisin is an ingredient in a contract, and stands for

acceptance, specially according to the opinion that acceptance is not a

necessary condition. In this (immediateness [467] being worthy of con-

sideration), seisin in waqf differs from seisin in sale where ownership and

the contract are complete without seisin and consequently immediate

seisin is not at all necessary for its taking effect." (Masalik-ul- Afham.)*

(1) Abbreviation of the name of some book.



*-*'



A** uil ly'^a* *** ^ig* ua^i sJxJi ***



666



YII] AGHA ALI KHAN V. ALTAP HASAN KHAN 14 All, 469

[468] Another authority of great consequence is the Jawahir-ul-Kalam, 1892
a well-known commentary of the Sharayi-ul-Islam, and it runs as follows MAY 9.
consistently with the preceding commentary :

" So where a person makes a waqf and then dies before seisin, the FULL
waqf is void and becomes an heritage in the former case, nay even in the BENCH.
latter case. Similarly, a waqf becomes void if the waqif turns made or -
swoons, as is the case with all the conditions of validity, when in the *" * *'
course of the fulfilment of those conditions there comes something which <*) =
bars themibefore the completion of the cause, namely, what is apparently
shown to be the cause, or which is caused to be believed to be so, by the *
importance" of the continuance of capability till the completion of the
cause ; and there is no distinction (in this matter) between the proposer,
the acceptor and the subject-matter of the contract. Hence there seems
no difference of opinion among the masters, in all matters, as to a cause
becoming a nullity by being barred in the course of its completion, though
the bar may cease, to exist afterwards. But if we say that seisin is a
condition for obligation, then the waqf is nullified by the death of the waqf
under the correct tradition to be mentioned hereafter, on the ground that
the word ' sadaqah ' occurring in it means waqf." (Jawahir-ul-Kalam).*

[469] To these texts which were cited upon the point now under con-
sideration I may add'the following, which is from the Jami-ulrMaqasid,
who and whichilst an authority on the Shia law, ia not a commentary on
the Sharayi-ul-Islam, for it is a commentary on another text of high
authority, namely, the Qawaid. The Jami-ul-Maqasid has the following :



i 5 (suit J^ JJj



*

C '; i '* J* 5 2 ^



667



14 All



INDIAN DECISIONS, NEW SEEIES



[Yol.



1892

MAY 9,

FULL
BENCH.

14 A. 429

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



" Possession is a condition for validity of it (waqf}, and if he (the
waqif, appropriator) has made a luaqf but has not delivered the appropriat-
ed property and has then died, the property becomes inheritance in con-
sequence of the waqf being void because of the absence of its essential
condition, and this doctrine is explained in the tradition stated by Obeid
Ibn-i-Zurarah from (Imam) Sadiq, on whom be peace."*

But it has been argued by Pandit Sundar Lai that in cases (such as
the will of Muhammad Ali dated the 3rd of November 1863, to which this
discussion relates) where a ivaqf is created and delivery of possession and
acceptance have not taken place," the waqf does not become void but takes
effect as a will to the extent of one-third of the property of the deceased
appropriator. For this contention he relies, inter alia, upon the following
texts of the Mabsut :

" If the transfers are to come (into effect) after death ; thus in the
case of a waqf made by a will or when he directed manumission of a slave
by his will, or, when he made a wilt for the sale of a house at a nominal
price, and others like it :

[470] " If one-third of the property be sufficient to meet all this, it
will be done accordingly. If one-third be not sufficient 'to meet all this
(and there be no will for the manumission of a slave) the one-third will be
applied to meet them all in proportionate shares and none shall have pre-
ference over the other, because all these must come into effect at once, viz,,
on the (date) of death. This is according to the saying of the opposite
sect (i.e., the Sunnis). According to us the first mentioned will have pre-
ference over the next and so on till the one-third is exhausted." (The
Mabsut by Sheikh Abu Jafar, p. 273, lines 23 to 25. *



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 99 of 155)