Thakur Mohd. Ismail vs Thakur Sabir Ali
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: supreme-court
Case Number: Civil Appeal No. 256 of 1959
Decision Date: 26 March, 1962
Coram: K.N. Wanchoo, P.B. Gajendragadkar, A.K. Sarkar
In the matter of Thakur Mohd. Ismail versus Thakur Sabir Ali, decided on the twenty‑sixth of March, 1962, the Supreme Court of India delivered its judgment. The opinion was authored by Justice K.N. Wanchoo and the Bench for this case comprised Justices K.N. Wanchoo, P.B. Gajendragadkar and A.K. Sarkar. The case appears in the law reports as 1962 AIR 1722 and also as 1963 SCR (1) 20. The dispute centered on the operation of the Oudh Estates Act, 1869—specifically sections eleven, twelve and eighteen of that Act—together with sections three and four of the Musalman Wakf Validating Act, 1913. The petitioner, Thakur Mohd. Ismail, was a Hanafi Muslim who owned a talukdari estate that fell within the jurisdiction of the Oudh Estates legislation. In the year 1925 he executed a deed of wakf‑alal‑aulad, intending that the benefit of the estate would pass to himself, his family and his descendants for successive generations. Under the terms of the deed the first mutawalli would be the settlor himself, after his death the second mutawalli would be his second son, and thereafter the mutawalli would be chosen according to the rule of primogeniture among his other sons and their descendants. The deed also provided for certain sums to be paid to charitable institutions and for the maintenance of members of his family, while the balance of the estate was to revert to the mutawalli.
Following the death of the settlor, the eldest son of the settlor’s predeceased eldest son instituted a suit claiming succession to the estate on the basis of male lineal primogeniture as prescribed by the Oudh Estates Act. The plaintiff contended that the wakf deed was void because it contravened sections eleven and twelve of the Act. The trial court examined the authenticity of the deed, held it to be a genuine document and found it valid, consequently dismissing the suit. On appeal, the High Court affirmed the genuineness of the deed but set aside the trial court’s order, holding that the deed violated section twelve of the Act. Section eleven of the Act declares that an estate conferred on a talukdar is an absolute estate and that the talukdar may transfer or bequeath it in any manner he chooses. Section eighteen deals with gifts made for religious and charitable purposes. Section twelve provides that “no transfer or bequest under this Act shall be valid where by the vesting of the thing transferred or bequeathed may be delayed beyond the lifetime of one or more persons living at the death of the transferee or testator and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing transferred or bequeathed is to belong.” The Court held that the Oudh Estates Act, 1869 formed a complete code governing the rights of holders of talukdari estates and that those rights must be interpreted strictly according to its provisions. Although a wakf‑alal‑aulad is technically a gift in favor of God, such a gift could be valid only if it fell within the ambit of section eleven. Section eighteen merely prescribed the procedure for gifts to charitable and religious uses and did not extend to provisions intended for the settlor’s own progeny.
The Court observed that the authority to make a gift was located in section 11 of the Act, but any such gift had to comply with the requirements of section 12. The expression “religious or charitable uses” appearing in section 18 applied to talukdars of every faith, and when properly understood it could not be interpreted to mean that a provision made for one’s own children would automatically qualify as a provision for religious or charitable purposes. Consequently, a wakf like the one under consideration in the present case, whose principal beneficiaries were the descendants of the wakf itself, could not be said to fall within the ambit of section 18. If the wakf were treated as a gift to God, the deity would not retain any beneficial ownership over the property for successive generations. The Court further noted that sections 3 and 4 of the Wakf Validating Act of 1913 did not alter this position. The judgments in Bikani Mis v. Shuklal Poddar (1893) LR 20 Cal 16 and Abdul Pala Mohamed Ishak v. Russomoy Dhur Choudhry (1894) LR 22 TA 76 were referred to for guidance. The Court explained that the term “vesting” in section 12 signifies absolute vesting, meaning that the person in whose favor the property vests may use and dispose of it and its usufruct at will. Even if, in the instant matter, the property were to vest in God immediately upon the creation of the wakf‑al‑al‑aulad, the absolute vesting envisaged by section 12 would be deferred beyond the period prescribed by that section. Accordingly, the wakf‑al‑al‑aulad attracted the operation of section 12 and therefore could not stand. Per Justice Sarkar, the phrase “religious and charitable uses” in section 18 was not limited to the concepts found in English law alone. The Act contemplated a transfer by way of wakf as an inter‑vivos transfer, which, under section 11, qualified as a permissible gift. The wakf in the case was valid under sections 3 and 4 of the Muslim Wakf Validating Act, 1913, and it was incorrect to assert that the usufruct passed to unborn descendants. Under Mohammedan law a wakf is a charitable gift wherein all rights vest in God at the moment of declaration, allowing any profits to revert to or be applied for the benefit of humanity. Since the enactment of the Wakf Validating Act, 1913, a wakf‑al‑al‑aulad has been treated as any other type of wakf, with its subject‑matter vesting immediately upon creation in God for the benefit of mankind, not as a trustee but as the owner. The descendants of the wakf therefore acquired no vested interest in the usufruct of the wakf property. Because the vesting was not delayed at all, there was no breach of section 12. The judgment concluded with the citation of the civil appellate jurisdiction, stating that the appeal was Civil Appeal No. 256 of 1959, arising from the decree dated 22 February 1954 of the Allahabad High Court (Lucknow Bench) in First Civil Appeal No. 50 of 1946.
Counsel for the respondent was identified as the Solicitor General of India together with counsel for respondent No 1. The judgment of Justices Gajendragadkar and Wancboo was read by Justice Wanchoo, while Justice Sarkar delivered a separate judgment. The matter before the Court was an appeal filed by a defendant on a certificate that had been granted by the Allahabad High Court. The original suit had been instituted by Thakur Sabir Ali, who was the plaintiff‑respondent, seeking possession of certain lands. The case required an examination of the family pedigree, which, although presented without superfluous names, was essential to understand the plaintiff’s claim.
The family lineage began with Thakur Amir Baksh, who died in 1857. He was succeeded by his son Thakur Fateh Mohd, who died in 1899 without issue. Upon his death, the talukdari of the Tipraha Estate passed, according to family custom and the provisions of the Oudh Estates Act of 1869, to Thakur Nabi Baksh. Thakur Nabi Baksh died in 1937, leaving a sole son, Asghar Ali, who inherited the estate. In his lifetime, Asghar Ali acquired additional properties, some of which were talukdari holdings while others were not. In August 1925, Asghar Ali executed a deed of wakf al‑al‑aulad, thereby establishing a wakf over his entire property for the benefit of himself, his family and their descendants in perpetuity. The deed appointed Asghar Ali as the first mutwalli for his lifetime, thereafter naming his son Thakur Mohd Umar as the next mutwalli, followed by his other sons and subsequent descendants selected according to the rule of primogeniture. The wakf deed stipulated that certain sums were to be paid to charitable institutions, a portion was to serve as maintenance allowance for family members over successive generations, and the balance was to be retained by the mutwalli.
Asghar Ali died in February 1937, leaving behind the property described in Schedules A to I attached to the plaint. After his death, disputes arose concerning succession and possession of his assets. Thakur Mohd Umar asserted that the wakf deed of August 1925 vested the entire property in his hands, whereas the plaintiff, being the eldest son of the eldest grandson Nasirali—who had predeceased his father Asghar Ali—claimed succession under the rule of lineal primogeniture. The contention resulted in extensive litigation before the Revenue Courts, which eventually issued a mutation order in favor of Thakur Mohd Umar, the then‑defendant. The present suit, instituted by Thakur Sabir Ali, sought possession of the whole property left by Thakur Asghar Ali and claimed mesne profits. The plaintiff maintained that his right to succession derived from male lineal primogeniture as recognized by the Act and family custom, and he denied the execution, attestation, genuineness and validity of the wakf deed relied upon by Thakur Mohd Umar. Although the wakf deed faced additional challenges, the principal allegation against its validity was that the subject matter comprised property governed by the special provisions of the Oudh Estates Act.
After the death of Thakur Asgharali, Thakur Mohd Umar acquired possession of the properties listed in schedules A, B, D, E, F, and H, except for certain items expressly excluded in those schedules, while the remaining defendants took possession of other properties whose details were not relevant to the present consideration. Thakur Sabir Ali subsequently filed the present suit seeking possession of the entire estate left by Thakur Asgharali and also claimed mesne profits. He asserted that, under the rule of male lineal primogeniture as prescribed by the applicable Act and the family custom, he was the rightful heir to the whole of the deceased’s property. In support of his claim, he denied the execution, attestation, genuineness, and validity of the wakf deed that Thakur Asgharali was alleged to have executed, a deed that Thakur Mohd Umar relied upon to establish his title. The wakf deed was also contested on several other grounds, although those additional challenges were not examined further in this narration, except for the principal ground that the subject matter of the deed comprised property falling within the special provisions of the Act, rendering the deed invalid in view of sections 11 and 12 of that Act. This principal issue was the matter to be resolved on appeal. The respondents contended that the wakf deed had been duly executed, properly registered, and subsequently acted upon, and that no fraud, undue influence, or coercion as alleged by the plaintiff had been exerted upon Thakur Asgharali. They further argued that even if the wakf were deemed invalid as a gift, it would operate as a will, thereby vesting the mutwalli with possession of the entire estate of Thakur Asgharali. The defendants also opposed the challenge to the wakf deed on the basis of the Act’s provisions. The trial court concluded that the wakf deed was indeed duly executed and was a genuine, valid document. It also held that the plaintiff, by virtue of the family custom and the Act, was entitled to inherit, through the rule of male lineal primogeniture, those properties that Thakur Asgharali left at his death; however, because the trial court found the wakf deed to be valid, it dismissed the plaintiff’s suit except with respect to two properties listed in Schedule A of the plaint, which were decreed to the plaintiff on the basis that they were omitted from the wakf deed. Subsequently, Sabir Ali appealed to the High Court. The High Court affirmed the trial court’s finding that the wakf deed was a genuine document and recognized it as a valid wakf‑al‑al‑aulad under the Mussalman Wakf Validating Act (No. 6 of 1913), but it also held that the wakf deed was invalid because it contravened the provisions of section 12 of the Act.
In this appeal the Court observed that, although the deed of wakf could not be sustained as a valid instrument creating a wakf, the instructions contained in that deed regarding the payment of maintenance allowances, the right of residence for persons who were alive at the time of Asgharali’s death, and the expenditure for charitable purposes were to be regarded as binding on the plaintiff because they represented the last will and testament of Asgharali. Consequently, the Court allowed the appellant’s appeal and pronounced judgment in favour of the plaintiff’s claim for possession of the properties that were expressly mentioned in the wakf deed, as well as of the other properties that had belonged to Asgharali at the moment of his death. This possession was to be subject to the payment of the allowances and the fulfilment of the charitable obligations earmarked for the persons who were living at the time of Asgharali’s death. The Court further declared that the amounts earmarked for the allowances and for charitable expenditures would constitute a charge upon the properties identified in the wakf deed. The decree of the High Court also included several consequential directions, but the present appeal does not concern those matters. The plaintiff derived his rights from the portion of the High Court decree that mandated that the allowances and the sums intended for charities be paid out of the properties included in the wakf deed and that a charge be created upon those properties; that specific portion of the High Court decree has therefore become final. The principal issue now before this Court is whether the High Court was correct in holding that the wakf is invalid under section twelve of the Act. To address this question, it is necessary to briefly recount the historical background of the talukdari estates to which the Act applies. After the suppression of the Mutiny of 1857, the Governor‑General of India, Lord Canning, issued a proclamation on 15 March 1858 that confiscated all proprietary rights in the soil belonging to persons in Oudh, except for the rights of a few talukdars. The proclamation simultaneously offered indulgence to those who promptly surrendered. In response to that promise, the majority of the talukdars surrendered and consequently recovered their estates, whereas those who refused to surrender forfeited their estates. The forfeited estates were then allotted to other talukdars who had demonstrated loyalty to the British Government, as a reward for their allegiance. This re‑grant of land was effected through settlements with the talukdars and the issuance of sanads. Thus the pre‑existing rights of the talukdars were first removed and thereafter fresh grants, based on the terms of the sanads and the proclamation, were made to them. This process was followed by the enactment of the Oudh Estates Act of 1869, which further clarified the rights of the talukdars over the estates granted to them by the British Government. An examination of the provisions of that Act shows that the rights of the talukdars and of the grantees to whom the British Government gave estates were delineated therein.
In the judgment it was explained that the Oudh Estates Act defined the rights of talukdars without regard to religion or caste, so that the legislation applied uniformly to every talukdar regardless of his faith. The Act also contained provisions on succession, and it was held that the personal law ordinarily governing a talukdar’s talukdari property was displaced except to the extent that the Act itself incorporated any such personal law rules. Moreover, the Court observed that for the matters addressed by the Act the legislation formed a self‑contained and complete code dealing with talukdari property. This observation echoed the view of the Privy Council in the case of Chandra Kishore Pewari v. Sissendi Estate, where the council described the Oudh Estates Act as a special statute affecting a distinct class of persons with respect to the property granted to them, and characterized the Act as self‑contained and exhaustive on the subjects it covered. Against this backdrop the Court said that it was necessary to examine the provisions of the Act in detail. The long title of the Act declares it to be “an Act to define the rights of talukdars and others in certain estates in Oudh, and to regulate the succession thereto.” The preamble explains that after the British re‑occupation of Oudh in 1858 the Government conferred proprietary rights in various estates on selected talukdars and other persons under certain conditions, and that questions might arise concerning the nature of those rights and the mode of succession. Consequently, the Act was created to remove such doubts, to regulate the course of succession, and to provide for other matters connected with the estates. The Court therefore concluded that the Act was intended to define the rights of all holders of talukdari estates and to regulate their succession, and that because the Act was a complete code for this special class of persons, any right that a talukdar possessed in the conferred property had to be found within the provisions of the Act and was limited by those provisions.
The Court then turned to the specific provisions of the Act. Section 2 was identified as the definition section, and the Court focused particularly on the definition of the term “transfer”. The Act defined “transfer”, together with its grammatical variations and cognate expressions, as an inter‑vivos alienation of property, whether the alienation occurred before or after the commencement of the Act. Section 3 was noted to define the rights of a talukdar, stating that a talukdar possessed a permanent, heritable and transferable right in the estate comprising the villages and lands listed in the schedule attached to the agreement or kabuliyat that the talukdar executed when the settlement was made with him. Finally, Section 8 was highlighted as providing for the preparation of lists of talukdars and other grantees, thereby establishing an official record of those persons who held rights under the Act. These provisions together formed the substantive framework through which the rights and obligations of talukdars were to be governed.
It was undisputed that the Tipraha estate appeared in both List I and List II that were prepared pursuant to section 8 of the Act. The Court then examined section 11, which sets out the powers of a talukdar to transfer and bequeath the property held under the Act. The provision states, in substance, that subject to the Act and all conditions other than those relating to succession under which the estate was originally granted by the British Government, any talukdar or grantee, as well as any heir or legatee of a talukdar or grantee who is of sound mind and not a minor, may lawfully transfer the whole or any part of his estate, or his right and interest therein, during his lifetime. Such transfer may be effected by sale, exchange, mortgage, lease or gift. Likewise, the provision allows the same persons to bequeath, by will, the whole or any portion of the estate, right or interest, to any person of their choosing. A plain reading of this clause demonstrates that the estate conferred on a talukdar was an absolute estate, giving the holder the unrestricted right to alienate it in any manner and to any person, even to the extent of completely selling it, without regard to heirs governed by personal law.
The Court then turned to section 12, which imposes a limitation on the foregoing freedom. Section 12 declares that no transfer or bequest made under the Act shall be valid if the vesting of the transferred or bequeathed property is postponed beyond the lifetime of one or more persons who are alive at the death of the transferor or testator, and if a minor who is alive at the end of that period would be the ultimate recipient once he attains full age. This provision embodies the rule against perpetuities, meaning that although a talukdar possesses an absolute estate and may transfer or will it as he wishes, he cannot create a transfer or bequest that would violate the rule against perpetuity.
Section 13 deals with the procedure for transfers made by gift. It requires that a gift be executed by an instrument signed by the donor and attested by at least two witnesses, the instrument being dated not less than three months before the donor’s death. The instrument must then be presented for registration within one month of its execution and subsequently registered. Moreover, a gift will not be valid unless, within six months from the date of execution, the donor or his authorized representative delivers possession of the gifted property. The Court noted that the remaining sections concerning bequests and other modes of transfer, which are not the focus of the present analysis, are laid out elsewhere in the Act.
Finally, the Court examined section 18, which specifically addresses gifts intended for religious or charitable purposes. Section 18 provides that no talukdar, grantee, heir, legatee, or any transferee mentioned in section 14, nor any heir or legatee of such transferee, shall have the power to donate his estate, any portion thereof, or any interest therein, for religious or charitable uses, except by an instrument or gift signed by the donor, attested by at least two witnesses, dated not less than three months before his death, and presented for registration within one month of execution and duly registered. The Court highlighted the distinction between section 13, which governs gifts for non‑charitable purposes and requires delivery of possession for validity, and section 18, which omits the possession‑delivery requirement for charitable gifts.
In section 14 the statute provides that no heir or legatee of a transferee shall have authority to convey his estate, or any part of it, or any interest therein, for religious or charitable purposes unless the conveyance is made by an instrument or gift that is signed by the donor, attested by at least two witnesses, executed not less than three months before the donor’s death, presented for registration within one month of execution and subsequently registered. The Court observed that this provision differs from the rule in section 13, which governs gifts made for non‑religious or non‑charitable purposes, because section 13 requires the delivery of possession for a gift to be valid, whereas section 18 (the present provision) does not impose a possession‑delivery requirement. The remainder of the Act deals with intestate succession and other matters, but those provisions are not relevant to the present dispute. The appellant primarily contended that a wakf‑al‑al‑aulad (a charitable endowment for the benefit of descendants) falls completely outside the scope of the Act and therefore should be considered a valid instrument under Act VI of 1913. Alternatively, the appellant argued that even if a wakf‑al‑al‑aulad were within the ambit of the Act, it would be governed by section 18, and that compliance with that section would shield the wakf from the operation of section 12, on the ground that section 18 operates independently of section 12. The Court found no merit in the first contention. It is undisputed that the property that is the subject of the wakf‑al‑al‑aulad in this case is property that falls within the definition of property governed by the Act. The Court reiterated that the Act is a special statute that applies to a particular class of persons with respect to lands granted to them by the British Government, and that it constitutes a self‑contained and comprehensive code for the matters it addresses. Consequently, with respect to property covered by the Act, the only authority the talukdar possesses to deal with that property is the authority expressly granted by the Act; the talukdar may not manage or transfer such property in any manner not authorised by the Act. If the creation of a wakf‑al‑al‑aulad were deemed to lie outside the Act, then any such wakf involving property that is governed by the Act would be void insofar as that property is concerned, because the property can be dealt with only in the ways provided by the Act, which is a complete code governing the talukdar’s rights over the property. On
The Court noted that the proposition that a wakf‑alal‑aulad represents a mode of dealing with property entirely outside the Act cannot be accepted, because if such a wakf were applied to property governed by the Act it would immediately fail. Nevertheless, the Court held that the contention that a wakf‑alal‑aulad is something wholly outside the purview of the Act, even when it concerns property subject to the Act, is untenable. By its very nature a wakf‑alal‑aulad is a transfer of property made by the individual who creates the wakf. The Court referred to the position before the enactment of Act VI of 1913, when the Privy Council in Abul Fata Mahomed Ishak v. Russomoy Dhur Chowdhury (1894) L.R. 22 I.A. 76 held that “under Mahomedan law a perpetual family settlement expressly made as wakf is not legal merely because there is an ultimate but illusory gift to the poor.” Because of that decision, the traditional wakf‑alal‑aulad was deemed illegal, prompting the passage of Act VI of 1913 which rendered such wakfs legal. Consequently, once the Act made these wakfs permissible, a transfer of the property covered by the wakf occurred, and that transfer vested in God Almighty. This follows the Mahomedan law theory that wakfs created for purposes regarded as religious or charitable result in a perpetual transfer of ownership of the wakf property to God Almighty. Moreover, because the transfer is made without consideration, it amounts to a gift. Hence, wakf‑alal‑aulads that became valid after Act VI of 1913 must be regarded as gifts of property to God Almighty for specified purposes and therefore qualify as “transfers” within the definition provided in section 2 of the Act. The Court added that the phrase “inter vivos” in the definition of “transfer” merely stresses that the transfer must be effective during the lifetime of the transferor, as opposed to a transfer by will which takes effect only upon death. Accordingly, whenever a transfer is effected by a wakf‑alal‑aulad and the property involved is covered by the Act, the relevant provisions of the Act governing the talukdar’s power to make such a transfer must be examined. The transfer will be valid only if it falls within the powers conferred upon the talukdar. Turning to the alternative argument raised for the appellant, the Court observed that because a wakf‑alal‑aulad is a gift in favour of God Almighty and the property in the present case is governed by the Act, the first step is to consult section 11 to ascertain whether a gift is permitted under that section, noting that section 11 does indeed allow a talukdar to make a gift of all or any portion of his property.
The talukdar may transfer all of the property, any portion thereof, or any interest in it. Accordingly, the relevant statutory provisions are sections 13 and 18 of the Transfer of Property Act. Section 13 governs gifts that are not made for religious or charitable purposes, and therefore it is not applicable to the present situation. Section 18, by contrast, governs gifts made for religious and charitable purposes. The appellant argues that section 18 operates as an independent provision permitting a talukdar to make gifts for religious or charitable purposes without reference to any other section. The Court, however, disagrees with that view and holds that section 18 merely prescribes the procedure for effecting gifts that are religious or charitable in nature. The substantive power of the talukdar to make a gift originates in section 2, while the mode of making such a gift is set out in section 13 for non‑charitable gifts and in section 18 for charitable or religious gifts. Consequently, section 18 cannot be treated as an autonomous source of authority for charitable or religious gifts; it functions only as a procedural rule applicable to the class of gifts described therein. Even assuming, for argument’s sake, that section 18 were an independent authority for charitable or religious gifts, those gifts would still fall within the ambit of section 12, which declares that no transfer of a bequest under this Act shall be valid. Thus, a gift made under section 18 would still be subject to the limitation imposed by section 12. For reference, section 18 of the Transfer of Property Act (No. 4 of 1882) expressly states that the rule against perpetuity in section 14 does not apply to transfers made for the public benefit in advancing religion, knowledge, commerce, health, safety, or any other object beneficial to mankind. However, the Act does not provide a comparable exemption for religious or charitable gifts made under its provisions, and such gifts remain subject to the restrictions of section 12. Two questions therefore arise when applying section 12 to the present wakf. The first question is whether the purpose of the wakf qualifies as a religious or charitable purpose within the meaning of section 18 of the Act. According to the wakf deed, only an insignificant portion of the income is earmarked for specific religious purposes, while the remaining income is intended for the benefit of the wakif and his descendants across generations.
The Court noted that the deed states the income of the property shall be applied to the wakif’s descendants and heirs for successive generations. Only when the entire line of the wakif becomes completely extinct may the whole income be directed toward purposes that could be described as charitable or religious. The petitioners argued that, despite the majority of income benefiting the descendants, the wakf should still be considered religious and charitable because the property immediately vests in God Almighty. They relied on the dissenting judgment in Bikani Mia v. Shuklal Poddar (1) where Justice Ameerali expressed the view that a wakf for wakif and his descendants qualifies as a charitable purpose under Mahomedan law. The Court observed that this dissenting opinion was not adopted by the majority of the judges hearing the Bikani Mia case. The Court referred to Privy Council decision in Abul Fata Mahomed Ishak’s case (2), which held that a wakf whose beneficiaries are wakif’s descendants cannot be treated as a charitable purpose even under Mahomedan law. Beyond this doctrinal point, the Court clarified that the present case does not require an examination of what constitutes charitable use under Mahomedan law. The dispute instead concerns the interpretation of the 1869 statute enacted by the British government, specifically the provision in section 18 that mentions “religious or charitable uses.” The Court opined that it is evident the framers of the Act could not have intended to classify a wakf created for the benefit of a wakif’s children as falling within those expressions. The Privy Council’s ruling in Abul Fata Mahomed Ishak’s case (2) reinforces this conclusion, showing that the legislature not have contemplated a wakf whose beneficiaries are the wakif’s descendants as a religious or charitable purpose. Moreover, the Act applies not only to Muslim talukdars but also to talukdars belonging to every other religion. It would be unreasonable to assume that the expression “religious or charitable uses” was intended to cover wakfs whose main beneficiaries are the wakif’s descendants, even under Hindu or Christian law. Consequently, the Court held that although the deed theoretically vests the property in God Almighty, the wakf in the present case cannot be characterized as being for charitable or religious purposes. The Court therefore concluded that the arrangement must be treated as a simple gift, and not as a valid wakf, for the purposes of the statute.
In this case the Court observed that the wakf is made in the name of God Almighty, yet it is clear that, for the generations that follow, God Almighty will not possess any beneficial interest in the property. The Court further held that the Wakf Validating Act of 1913 does not alter this position. Section 3 of that Act expressly authorises a Muslim to create a wakf‑al‑al‑aulad, but the Court stressed that this authorisation does not imply that the purpose of such a wakf is religious or charitable. The Court explained that the proviso to section 3 makes it explicit that the ultimate benefit of a wakf‑al‑al‑aulad must be for a religious or charitable purpose; consequently, the proviso would be superfluous if the law already regarded the purpose of a wakf‑al‑al‑aulad as religious or charitable. The Court further indicated that the same conclusion can be drawn from the provision in section 4. Accordingly, the Court said that, in the present circumstances, section 12 must render the wakf invalid. The Court reiterated that section 12 embodies the rule against perpetuity, but some had argued that the rule is not engaged because the property vests in God immediately upon creation of the wakf‑al‑al‑aulad and that section 12 merely requires that vesting not be postponed beyond a specified period. The Court rejected that argument, holding that the vesting occurs at the moment the wakf is created and therefore the transfer is not exempt from section 12. This raised the question of the meaning of “vesting” under section 12. The Court conceded that property included in a wakf‑al‑al‑aulad vests in God Almighty, but it clarified that the vesting contemplated by section 12 must be absolute vesting – that is, both legal and beneficial interests must vest without delay. Such absolute vesting gives the person in whose name the property is vested the full power to deal with the property and its usufruct as he wishes. If the person who legally holds the property cannot freely deal with the usufruct, then the vesting is not the absolute vesting required by the rule against perpetuity in section 12. The Court warned that, if this were not the case, it would become easy to evade the rule against perpetuity by placing the legal title in a trustee while allowing perpetual beneficial enjoyment by others who never acquire legal title. The Court affirmed the settled principle that a trust which immediately vests legal title in a trustee while tying up the usufruct forever for the benefit of others violates the rule against perpetuity. In support of this view, the Court referred to the tenth edition of Underhill’s “Law of Trusts and Trustees”, page 70, which explains that private trusts created for an indefinite period are prohibited to prevent avoidance of the rule against perpetuities.
In this case the Court explained that the ability to deal with property freely is limited by the rule against perpetuities. The rule states that any future limitation on real or personal property, whether created by an executory devise or a trust, whose absolute vesting is postponed beyond the lives of persons living at the time of the creation plus twenty‑one years (with an additional period of gestation where applicable), is void. Accordingly, even though the property involved could vest in God immediately upon the creation of the wakf‑al‑al‑aulad, the beneficial enjoyment was not intended for religious or charitable purposes of God. The vesting contemplated by section twelve of the Act was therefore postponed beyond the period permitted by that section. Consequently, the wakf, although it could be described as a gift to God that vests property in Him at the moment of execution, is invalid under section twelve because the absolute vesting required by that provision occurs later than the statutory time limit. The Court held that the High Court was correct in finding the wakf to be struck down by section twelve of the Act. The Court also considered an argument that, as long as the appellant Mohd Ismail remained alive, the plaintiff‑respondent could not claim possession and that the High Court’s decree was therefore erroneous. The Court could not accept this contention. Once the wakf fails in its entirety, as the Court concluded, Mohd Ismail loses any right to remain in possession because his possession depended on his status as mutawalli of the wakf. Accordingly, the High Court was right to decree in favour of the plaintiff‑respondent, the appeal failed, and it was dismissed with costs.
The judgment then turned to the factual background concerning Thakur Mohammad Asghar Ali, a Hanafi Muslim who owned the Tipraba Estate, a taluqdari estate governed by the Oudh Estates Act of 1869. The record also indicated that he possessed additional immovable properties and valuable movable items, although the appeal did not raise any issues concerning those assets and they were therefore left undiscussed. On 26 August 1925, Asghar Ali executed a deed of Wakf‑al‑al‑aulad covering all of his property, which was estimated at a value of ten lakh rupees. By this deed he directed that an annual sum of one thousand rupees be spent for the purposes of a mosque, for the destitute, for helpless students, and that a portion of the income be used as guzara—maintenance—for his mother, wife and children, and subsequently for their heirs until the line of a guzara‑dar became extinct. He appointed himself as the first mutawalli of the wakf, granting himself full authority to disburse the remaining funds after the prescribed payments were made. The deed further provided that, after his death, his second son Mohammad Umar would succeed as mutawalli, thereby ensuring continued administration of the wakf according to the settlor’s intentions.
According to the deed of Wakf, after Asghar Ali’s death his second son Mohammad Umar was to become the mutawalli for the remainder of his life; subsequently, each of Mohammad Umar’s brothers would succeed to the mutawalli office one after another, and after the death of the last brother the succession to the mutawalli position would follow the rule of primogeniture as prescribed by the custom prevailing in the family. The deed further provided that if no person remained to succeed to the mutawalli office, the Government would be authorised to make appropriate arrangements for the usufruct of the Wakf property for the benefit of the mosque, for the religious sacrifice of goats, for the distribution of guzaras, and for the granting of scholarships to poor Mohammedan students. Asghar Ali died on 27 February 1937, and after his death disputes arose among his descendants. The respondent, Sabir Ali – the eldest son of the pre‑deceased eldest son Nasir Ali – asserted that the Wakf was neither genuine nor valid and consequently, relying on the rule of primogeniture contained in the Oudh Estates Act which governed the Tipraba Estate, claimed that he alone was entitled to all the properties left by Asghar Ali. This claim was contested, among others, by Mohammad Umar, who maintained that he was entitled to the properties on the basis of the Wakf. It was not in dispute that, in the absence of a valid Wakf, Sabir Ali would be entitled to the properties under the rule of primogeniture that governed their devolution. Ultimately, Sabir Ali instituted the suit from which the present appeal originates, alleging a right to the properties left by Asghar Ali on the ground of primogeniture. In that suit he denied the execution, attestation, genuineness and validity of the deed of Wakf on various grounds. Mohammad Umar, who was the first defendant, defended his claim by relying upon the Wakf deed. The widow and the other children of Asghar Ali were also named as defendants and opposed Sabir Ali’s claim on several grounds, but those parties are not before this appeal. The trial court held that the Wakf deed was valid in every respect, but it concluded that certain properties left by Asghar Ali had not been included in the Wakf; for those properties it passed a decree in favour of Sabir Ali. That portion of the decree was never contested and therefore became final. The trial court dismissed the remaining part of Sabir Ali’s suit, taking the view that the Wakf deed was valid and that, under it, Mohammad Umar was entitled to the properties as the mutawalli. Sabir Ali then appealed to the High Court at Allahabad. While the appeal was pending, Mohammad Umar and another defendant, Mohammad Ali, died; their legal representatives were subsequently substituted in their places. Another son of Asghar Ali, the appellant Mohammad Ismail, who had also been a defendant in the suit, succeeded to the mutawalli position under the terms of the Wakf deed upon the deaths of Mohammad Umar and Mohammad Ali.
After the deaths of Mohammad Umar and Mohammad Ali, the appellant Mohammad Ismail was substituted as mutawali in place of Mohammad Umar. The High Court concurred with the trial court’s finding that the wakf deed was genuine and had been executed in accordance with the required formalities, but the High Court held that the deed was ineffective because it contravened the rule against perpetuity contained in section 12 of the Oudh Estates Act, the terms of which the Court said it would later explain. Dissatisfied with that judgment, Mohammad Ismail filed the present appeal. The appeal raised two distinct questions. The first question asked whether the Act permits a transfer by way of wakf, given that the Act appears to allow only inter‑vivos transfers and transfers by will. The second question sought to determine whether the wakf created in this case violates section 12 of the Act. Section 2 of the Act defines “transfer” as alienation inter vivos. Section 11 provides that, subject to certain qualifications, every taluqdar of sound mind who is not a minor is competent to transfer the whole or any portion of his estate, or any right or interest therein, during his lifetime by sale, exchange, mortgage, lease or gift, and is also competent to bequeath by his will any part of such estate, right or interest to any person. From this provision it was understood that a taluqdari estate may be disposed of either by an inter‑ vivos transfer in one of the modes mentioned in section 11 or by a will, and by no other method. It was contended before the Court that the wakf in the present case did not constitute a disposition by either of these permissible methods and was therefore invalid. The Court found it necessary, before addressing this contention, to refer to two further sections of the Act. Section 13 deals with gifts of the estate for purposes other than religious or charitable, a matter that is not relevant to the present appeal. Section 15, however, provides that no taluqdar shall have the power to give his estate, or any portion thereof, or any interest therein, to religious or charitable uses except by an instrument of gift signed by the donor, attested by two or more witnesses not less than three months before his death, and presented for registration within one month of its execution and subsequently registered. It is not in dispute that the properties covered by the deed of wakf fall within the meaning of “estate” as defined by the Act. Regarding the contention that a transfer by way of wakf is not permitted by the Act because it is not an inter‑ vivos transfer, the Court observed that the concept of an inter‑ vivos transfer contemplated by the Act does not exclude a transfer by way of wakf. Section 18, which contemplates a transfer to religious and charitable uses, was enacted by the Uttar Pradesh Act III of 1910, and the Court found it impossible to construe the Act as excluding wakf as a permissible form of inter‑ vivos transfer.
The Court observed that the reference to “religious and charitable uses” in the statute could not be limited to those contemplated solely by English law, because the legislation was intended to apply to Indian taluqdars of every community, the majority of whom were Muslims and Hindus. The Court noted that if the provision were restricted in such a narrow manner, a Hindu would be unable to create a debenture and a Muslim could not establish a waqf; otherwise each would amount merely to a gift to a superstitious purpose, as in Bourne v. Keane (1), or a gift to God. The Court expressed that it could not imagine the Act being designed to produce such an outcome. Consequently, the Court concluded that the Act was meant to accommodate a transfer by way of waqf as a transfer inter vivos, and that such transfers could readily be classified as gifts under section 11, since they are made voluntarily and without consideration.
The Court then turned to the question of whether a waqf‑al‑aulad infringes section 12, which provides: “No transfer or bequest under this Act shall be valid whereby the vesting of the thing transferred or bequeathed may be delayed beyond the lifetime of one or more persons living at the death of the transferee or testator and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing transferred or bequeathed is to belong.” The High Court had held that the waqf was valid under the Mussalman Wakf Validating Act, 1913, but it declared that the waqf violated section 12 because, although the corpus of the waqf property was transferred to God Almighty, its usufruct passed to unborn descendants of the waqf creator generation after generation. The Court could not accept this reasoning.
Referring to the Privy Council decision in Abul Pala Mahomed Ishak v. Russomoy Dhur Chowdry (1), the Court noted that the Council had ruled that a waqf of the kind before the Court, in which the charitable gift would become effective only after the total extinction of the donor’s family, was illusory and therefore no true waqf existed. The Council had further observed that the poor were inserted into the settlement merely to give an appearance of piety and to legitimize arrangements intended to advance the family’s interests (p. 89). This judgment had caused considerable dissatisfaction among the Muslim community in India, prompting the enactment of the Mussalman Wakf Validating Act, 1913 to legalise waqf‑al‑aulad.
The Act defines waqf as “the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman law as religious, pious or charitable” (section 2(1)). Sections 3 and 4 of the Act were then outlined. Section 3 declares that any person professing the Mussalman faith may create a waqf in accordance with Mussalman law for various purposes, including (a) the maintenance and support, wholly or partially, of his family, children or descendants, and (b) where the waqf creator is a Hanafi Muslim, additional purposes as specified in the statute.
The provision allows a person to allocate the rents and profits of the dedicated property for his own maintenance and support during his lifetime or for the payment of his debts, on the condition that the ultimate benefit is expressly or impliedly reserved for the poor or for any other purpose recognised by Muslim law as a religious, pious or charitable purpose of a permanent character. The citation for this provision is (1) (1894) L.R. 22 I.A. 76. Section 4 further provides that no wakf shall be deemed invalid merely because the benefit reserved for the poor or for another religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the wakf.
From these provisions of the Wakf Validating Act it is clear that, for a Hanafi Muslim, a wakf created for the maintenance and support of the wakif and his descendants from generation to generation, and which, after the extinction of the family, benefits the poor or serves another religious, pious or charitable purpose of a permanent nature, qualifies as a wakf. Consequently, such a dedication is a purpose recognised by Muslim law as religious, pious or charitable. Under the concept of Mohammedan law, “wakf” signifies the extinction of the appropriator’s ownership in the thing dedicated and the detention of the thing in the implied ownership of God, so that its profits may revert to or be applied “for the benefit of mankind” (Mulla’s Mahomedan Law, 15th ed., p. 154).
The High Court held that the wakf created by Asghar Ali was a valid wakf under the 1913 Act, and this view is fully accepted. However, it is not agreed that, under that wakf, the usufruct is transferred to unborn descendants. A transfer constitutes a wakf only where the usufruct is applied for the “benefit of mankind”. Since the 1913 Act, there is no doubt that a transfer intended for the support of the wakif and his descendants generation after generation, together with a gift to other charities upon the extinction of the wakif’s family, is a transfer for the benefit of mankind. Accordingly, the transfer is a wakf from its inception, and all its purposes are for the “benefit of mankind”. Whether this notion is acceptable to a person who is not a Muslim is irrelevant.
In such a wakf the corpus vests in God so that the usufruct may be utilised for the “benefit of mankind”. If the High Court’s reasoning were correct, the corpus alone of the wakf property would vest in God, and either God would have no interest in the usufruct or would act as a trustee for the unborn descendants. It is well settled that a wakf does not create a trust in the English sense. Accordingly, the case of Vidya Varathi v. Balusami Ayyar observed that “the Mohammedan law relating to trusts differs fundamentally from the English law. It owes its origin to a rule laid down”.
In this case the Court explained that the concept of a wakf originates from the teaching of the Prophet of Islam and signifies “the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings.” The Court noted that once a particular property is declared to be a wakf, the right of the wakif is extinguished and the ownership of that property is transferred to the Almighty. The Court observed that it would indeed be difficult to imagine God acting as a trustee, and that the alternative suggestion that only the corpus of the wakf vests in God is likewise foreign to the notion of a wakf. The Court reasoned that if the usufruct in the present wakf were to vest in the descendants of the wakif from generation to generation, the same principle would imply that in a wakf created for the support of indigent widows the usufruct would vest in those widows, many of whom would be born long after the wakf was established. The Court stated that it was not aware of any authority holding that view. It affirmed with confidence that, in a wakf, the usufruct never vests in the persons who constitute the object of the pious purpose for which the wakf was created. The Court added that if the usufruct were to vest in unborn descendants, then God would have no interest in it and the corpus would not be detained in His custody for a pious purpose; consequently, no wakf would have been created. The only question before the Court, therefore, was whether the wakf violated section 12 of the Act. The Court identified a common misconception, arising from a refusal to recognise that under Muslim law a wakf‑al‑al‑aulad is wholly a gift to charity, with everything vesting in God and nothing vesting in the objects of the charity. The Court concluded that, if the present wakf is a valid wakf, the descendants of Asghar Ali did not acquire a vested interest in the usufruct of the wakf property. Recalling that, since the Wakf Validating Act, a wakf‑al‑al‑aulad is as valid as any other variety of wakf, the Court held that the subject matter of such a wakf vests immediately on its creation in God, not as a trustee but as the owner, because the profits of the property are to be spent for the benefit of mankind. Accordingly, the Court found that the vesting of the transferred property is not postponed and that section 12 is not violated by a transfer made by way of wakf. The Court therefore regarded the real effect of creating such a wakf as an immediate transfer of the property to God, vesting it in Him for the benefit of mankind, and expressed the view that this conclusion should govern the outcome of the appeal.
The Court examined the wakf that had been created by Asghar Ali and concluded that the instrument satisfied all legal requirements and therefore qualified as a valid wakf. The Court further held that the creation of the wakf did not contravene section 12 of the Oudh Estates Act, and consequently the wakf could not be characterized as illegal or void on that ground. After making this determination, the learned Judge initially expressed a view that the appeal should be allowed in light of the foregoing findings. However, the final judgment recorded that the Court, following the reasoning of the majority of the judges hearing the matter, rejected the appeal. In accordance with that majority opinion, the Court ordered that the appeal be dismissed and directed that the costs of the proceedings be awarded against the appellant. The judgment was authored by Justice Gajendragadkar, and the decision reflected the collective conclusion of the bench after consideration of the validity of the wakf and the applicability of the statutory provision.