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Sunday, June 17, 2012

Muslim law Wakf-Creation of-Held-permanent dedication of impugned properties in favour of God Almighty is necessary-Though objects of wakf may initially be for benefit of wakf's family and other descendants, ultimate beneficiary has to be God-Other important test is inalienability of properties forming nucleus of wakf-Once a wakf is created, title of wakf in dedicated property is extinguished and vests in God-Wakf is entitled to reserve power to alienate any portion of wakf properties, but for benefit of the wakf-Also, it is not necessary to use term `wakf in document in question-On facts, held impugned Deed of Trust did not create a wakf as executant had reserved to himself power to alienate trust properties, along with condition that his two minor daughters were to be given immovable properties worth a specified amount, but were disentitled to same if they had no male issues-Though it provided for performance of certain religious ceremonies, pious and charitable duties, there was no mention that dedicator had ever intended that impugned properties should constitute a wakf-It created only an English Trust. Settlement of properties-Making of-Held-It is not necessary that Mohammedan has always to create a wakf-There is no bar for them to create a simple English Trust. MIS owned various immovable properties and a business. Respondent was one of his children from his first wife and appellant from his second wife. Respondent executed a Release Deed acknowledging that all properties and the business belonged to MIS, and on receipt of a sum of money he had voluntarily relinquished all his rights over them. After execution of the said Deed. MIS executed a Deed of Trust in respect of his various properties. On death of MIS, respondent brought a suit for partition and separate possession against all his surviving heirs, and also making a case against the Release Deed executed by him. Trial Court held that by virtue of the Trust deed, a Wakf-al-al-Aulad had been created and consequently the properties set out as item Nos. 1 to 3 in the schedule to the plaint were not partible and could not form the subject-matter of any partition. As to the remaining properties, the Trial Court held that they were partible, declared undivided share of defendants therein, but respondent was not entitled to any share therein. Accordingly, a preliminary decree for partition and separate possession was drawn up. Defendants, including appellant, as well as respondent filed appeals against judgment of Trial Court in High Court. The High Court held that both the Release Deed and the Trust Deed were invalid and could not deprive either respondent or other heirs of MIS from getting their respective share in the property left by him. Consequently, appeal preferred by respondent was allowed and one filed by appellant was dismissed. Aggrieved by this, appellant filed the present appeal. Appellant contended that (i) each of the duties entrusted to the trustees who were to come into the management of the properties after the death of MIS were recognized by Mohammedans to be pious and charitable and also religious in nature which gave the document the distinct flavour of a Wakf-al-al Aulad (ii) trial court was wrong in concluding that properties subsequently acquired by the estate of MIS did not form part of the dedicated properties and were, therefore, partible (iii) mere declaration of an intention to create a Wakf is sufficient to create it, and delivery of possession as in the case of a gift, was not necessary. Respondent contended that (i) there was no express dedication of the Wakf properties in God and in absence of such a provision, it could not be presumed that the executant had intended to create a Wakf and not a simple English Trust as indicated from the document itself (ii) there is no legal bar in the creation of a trust for the objects indicated in the Deed of Trust though they may also be lawful objects of a Wakf-al-al-Aulad or even a Public Wakf. (iii) Trust Deed had not been acted upon inasmuch as the executant had reserved to himself the power to alienate the properties forming the subject-matter of the Trust Deed (iv) the Release Deed was not binding on the respondent. Dismissing the appeals, the Court HELD 1. Both the Judgments and decrees of the trial court as well as that of the High Court are liable to be set aside, and the suit filed by respondent No. 1 herein is dismissed. [1170-G] 2.1. Though no wakf had been created by the Deed of Trust, but at the same time it was MIS's intention to create a valid trust. [1168-G] 2.2. In order to constitute a wakf, there must be a permanent dedication of the properties in question in favour of God Almighty and while the objects of the wakf may initially be for the benefit of the wakf's family and other descendants, the ultimate beneficiary had to be God. Neither of the two above conditions are fulfilled by the Deed of Trust. [1168-H; 1169-A] Mulla's Principles of Mohammedan Law, referred to. 2.3. The other important test is the nature of inalienability of the properties forming the nucleus of the wakf. Once a wakf is created, the title of the wakf in the dictated property is extinguished and vests in God. The wakif is entitled to reserve power to alienate any portion of the wakf properties, but for the benefit of the wakf. In the instant case, the executant had reserved to himself the power to alienate the trust properties, but one of the conditions stipulated in the deed was that his two minor daughters were to be given immovable properties worth Rs. 8,000. A further direction was given by the executant that after his death his daughters each to be given a share of the immovable properties of the value of Rs. 8,000 on condition that they would not be entitled to the said immovable properties if they had no male issues. A specific direction was given that the properties given to Fathima Bi or Asha Bi would also revert to the Trust if they had no male issues. The aforesaid directions run contrary to the concept of wakf and the more appropriate view appears to be that the executant intended to create a simple English Trust. [1169-A, B, C, D] Kassimiah Charities Rajagiri v. Secretary, Madras State Wakf Board, AIR (1964) Madras 18 approved. 2.4. Although, in order to create a valid wakf it is not necessary to use the term `wakf' in the document in question, except for providing for the performance of certain religious ceremonies, pious and charitable duties, there is no mention that the dedicator had ever intended that the properties forming the subject-matter of the trust should constitute a wakf. The executant appears to have delibertely used the expression "trustee" and not "Mutwalli" which would have ended the controversy that has now arisen. [1169-D, E] 3.1. There is no bar to a Mohammedan creating a simple English Trust. It is not always necessary that in order to make a settlement of his properties, a Mohammendan has always to create a wakf. [1169-F] 3.2. As far as the Deed of Release is concerned, the same loses much of its significance once it is established that the properties forming the subject-matter of the Deed of Trust comprises a trust. The properties in question, therefore vests in the trustees for the time being in management of the same and are not partiable amongst the heirs of late MIS. [1170-E] 4. The Trust Deed also makes it clear that all properties acquired in future must be considered to be part of the trust properties and hence the trial court erred in holding that except for the properties mentioned in the Trust Deed, the other properties of MIS were secular in nature. [1170-F] Dr. Nafis A. Siddiqui, Mohd. Ishar Alam and Mushir Alam for the Appellant. Mushtaq Ahmad, Dr. C.V. Zaidi, M.F.A. Shutteri, Khwairakpam Nobin Singh, M.A. Chinnasamy and Shakil Ahmed Syed for the Respondents. , 2006(10 )Suppl.SCR1157, 2006(13 )SCC497 , 2006(13 )SCALE635 ,


CASE NO.:
Appeal (civil)  3023-3024 of 2000

PETITIONER:
MOHAMMED KHASIM ...Appellant

RESPONDENT:
MOHAMMED DASTAGIR AND ORS. ..Respondents

DATE OF JUDGMENT: 15/12/2006

BENCH:
Dr. AR. Lakshmanan & Altamas Kabir

JUDGMENT:
J U D G M E N T

WITH C.A.NOS.3025-3026/2000



ALTAMAS KABIR,J.


One Mohammed Imam Saheb owned various immovable
properties in Malleswaram in Bangalore.  He had three wives,
namely, Ghouse Bee, Hafiza Bi and Zeenath Bee.  Mohd. Imam
Saheb had one son and two daughters by his first wife-
Ghouse Bee since deceased, namely, Mohd. Dastagir,
Rahamat Bee and Maimoon Bee.  He also had three daughters
and one son by his second wife, Hafiza Bi, since deceased,
namely, Fathima Bee, Mahaboob Bee, Kathija Bee and
Mohammed Khasim.  Through Zeenath Bee, his third wife,
Mohd. Imam Saheb had two sons, namely, Anwar and Nazeer.
From the materials on record, it appears that besides
owning several immovable properties, Mohd. Imam Saheb also
owned a cloth business for which he had obtained a licence in
the name of Mohd. Dastagir, his son by his first wife.  On 18th
August, 1958, Mohd. Dastagir executed an unregistered
Release Deed   in favour of Mohd. Imam Saheb, acknowledging  
the fact that all the properties, including the cloth business,
belonged to Mohd. Imam Saheb and that on receipt of a sum
of Rs.5,000/- he had  voluntarily released and relinquished all
his rights and title over the properties belonging to Mohd.
Imam Saheb, including the shop.
After execution of the said Deed of Release, Mohd. Imam
Saheb executed a Deed of Trust on 29th February, 1960, in
respect of his various properties both movable and immovable.
The said deed has also been referred to as a Hiba.  The trust
deed indicates that during his lifetime, Mohd. Imam Saheb
would act as trustee in-management along with his second
wife, Hafiza Bi, and in the event of  death of either of them, the
survivor  would continue to be the trustee and manage the
trust properties  according to the terms of the  trust deed.  It
was also stipulated that since the wives and children of Mohd.
Imam Saheb were under his protection, he would be free to
enjoy  the properties according to   his will and desire and that
he would also  have the liberty to alienate the trust properties
and to purchase  fresh  properties for the benefit of the trust.
Whatever properties were acquired in future were also to be
included   with the trust properties.  The trust deed further
provided that on the death of the executant and his second
wife, Hafiza Bi, his son, Mohd. Khasim  alias Jani Sab, would
become the trustee  and would manage   the  properties in
accordance with  the terms of  trust deed.
Apart from providing for the management of the trust
properties, Mohd. Imam Saheb also stipulated that certain
charitable works, which were recognized by Islam to have
religious connotations, were to be performed.  One of the
religious ceremonies  to be performed was to adorn with
flowers and sandal paste  the tomb of  the executant and the
holy Quran was to be  recited every year during the month of
Barvi Shareef from the date of the first moon till the  11th day
of the moon and on the day of Milad-Un-Nabi  large number of
people    were to be provided with food.
Similar directions have been given for  recital of the
Quran during various other periods of the  year when also food
was to be provided to large numbers of people.   Provision was
also made for the trustee to arrange for good  marriages for the
daughters of the family.  It was also made clear that  except
for  the executant  himself,  none  of  the other trustees would
have the power to alienate the trust properties. The
management of the  textile  shop was left to Mohd. Khasim
after the death of the executant.  The executant also made
provision for his daughters and a  statement was made in the
trust deed  that the  Will  which the executant had executed
on 9th January, 1959 was also being cancelled by virtue of the
trust deed.
After Mohd. Imam Saheb's death,  his son Mohd.
Dastagir, by his first wife, brought a suit for partition  and
separate possession,  being Original Suit No.273/1972,
subsequently renumbered as Original Suit No.381/1980, in
the Court of  the Vth Additional City Civil Judge at Bangalore
City against all the surviving heirs of Mohd. Imam Saheb.  The
case made out by him was that the Release Deed which had
been executed by  him on 18th August, 1958,  in favour  of
Mohd. Imam Saheb was not binding on him as the said deed
had been executed by the plaintiff only  in deference to his
father's wishes.  According  to the plaintiff, the said deed was
nothing but a sham  document and was not acted upon and
was, in any event, not valid under Mohammedan Law.  It was
also pleaded  that the plaintiff had been informed by his father
that  if he executed the Release Deed, Hafiza Bi,  second wife
of Mohd. Imam Saheb, would also return certain properties
which had been given to her and her children by Mohd. Imam
Saheb. It was the further case of the plaintiff  that after
execution of  the Release Deed, Mohd. Imam Saheb re-
possessed  certain properties from Hafiza Bi by way of oral gift.
The suit was contested by  defendant Nos. 3,4,5 ,7,8,9
and  10 by filing   separate written statements.   The written
statement  filed by defendant Nos. 3 & 7 were rejected since
they had already adopted the written statement filed by the
other defendants.  Defendant Nos. 1,2, and 6 did not choose to
contest the suit and remained ex-parte.
In her written statement, the 4th defendant took the
stand that in view of  the Release Deed executed  by the
plaintiff on 18th August, 1958, he was not entitled to any share
in the   suit properties apart from the two sites  and house in
Srirampuram.
The 5th defendant also  resisted the suit by  relying on the
Release Deed executed by  the plaintiff and  claimed that the
plaintiff had no right in the immovable properties.
The 7th defendant Mohd. Khasim, took the defence that
his late father had created a trust by virtue of the Trust deed  
dated 29th February, 1960 and had appointed the 7th
defendant as  a trustee for the purpose of  performing various
religious rites coupled with the condition that the properties
were not to be alienated.  It was contended that the Trust deed
was in effect  a  Wakfnama   and that late Mohd. Imam Saheb
had created a Wakf-al-al-Aulad and  consequently the
properties which formed  the subject-matter of the  said
document were not  liable to be partitioned.  The 7th defendant
also took the  stand that by execution of the Deed of Release,
the plaintiff was estopped from maintaining  the suit and from
claiming any share in the properties in question.
As many as 19 issues were framed  by the trial court, of
which issue nos. 1,2, 13, 14 and 15 appear  to be relevant for
the purposes of these appeals.  The learned trial Judge after
an elaborate discussion with regard to   issue nos. 13 and  14
ultimately came to the   conclusion that by virtue of the Trust
deed, a copy of which  had been  exhibited as Ex.D-7, a  Wakf-
al-al-Aulad  had been created and  consequently the properties
set out as item Nos. 1 to 3 in the schedule to the plaint were
not partible  and could not form the subject-matter of any
partition.  Issue Nos. 13 and  14 were, therefore, answered in
the affirmative in favour  of defendant Nos. 3 and  7 and
against the plaintiff and defendant Nos.4 and 8 to 10.
However, the trial Judge  was of the view that the remaining
properties were partible,  but the plaintiff was  not entitled to
any share therein.  The 5th defendant was declared to be
entitled to  a 1/11th  undivided share in all the  immovable
properties.  Similarly, the 8th defendant was also declared to
be  entitled to a 1/11th share  while defendant Nos. 9  and 10
were declared to be entitled to an undivided 7/44th  share each
in the suit properties.  Pursuant to the said findings of the
trial Judge, a preliminary decree for partition and separate
possession was drawn up on 13th October, 1986.    
Four appeals, being  RFA Nos. 562/87,823/87, 196/90
and 561/87, were filed  against the aforesaid judgment.  RFA
562/87 was filed by  Zeenat Bee and her two sons, who were
defendant Nos. 8,9 and 10 in the suit.  RFA 561/87 was filed
by the plaintiff Mohd. Dastagir.  RFA 823/87 was filed by Smt.
Fathima Bee and Mehaboob Bee, who were defendant Nos. 4
and 5 in the suit and RFA No.196/90 was filed by Mohd.
Khasim, who was defendant No.7 in the suit.
The four appeals  were taken up for hearing together by a
learned Single Judge of  the Karnataka High Court and were
disposed of by a common judgment dated 5th October, 1998.
By the said  judgment, the appeal preferred by the plaintiff
was allowed.  The appeals preferred by the defendant Nos. 4
and 5 and defendant Nos.  8 to 10 in respect of  issue Nos. 13
and 14 were allowed.  Consequently,  the appeal preferred by
Mohd. Khasim  was dismissed.   While deciding the aforesaid
appeals, the High Court took a view which was completely
different from the views expressed by the  trial Judge with
regard to the interpretation of the Deed of Release and the
Trust Deed executed by Mohd. Imam Saheb.   After holding
that the  Trust Deed had not been acted upon at all, the High
Court came to the conclusion that on a construction of the
documents  in question, the final irresistible  inference was
that neither had any  valid trust nor  valid wakf been created
in the eye of  law so as  to deprive the plaintiff from getting a
share in the property left by his father.  The High Court
ultimately concluded that both the Release Deed and the Trust
Deed were invalid and the heirs of  Mohd. Imam Saheb were
all entitled to their respective shares in the properties of late
Mohd. Imam Saheb.
Civil Appeal Nos. 3023-3024/2000 have been filed by
defendant No.7 Mohd. Khasim against the decision in RFAs
No. 196/90 and RFA No. 561/87 and Civil Appeal Nos. 3025-
3026/2000 have been  filed  against the same judgment in
disposing of RFA No. 824/87 and RFA No. 562/87.
Appearing on behalf of  Mohd. Khasim, the appellant in
all these four appeals, Dr. Nafis Ahmed Siddiqui, learned
advocate, submitted that the High Court had erred in coming
to a finding that neither the  Release Deed nor the Trust Deed
had been acted upon and that the  estate of  Mohd. Imam
Saheb was,  therefore,  open to partition amongst  his heirs.
Dr. Siddiqui submitted that there was  sufficient  material on
record to show that after the execution of the  Release Deed,
Mohd. Imam Saheb recovered certain properties from his
second wife,  Hafiza Bi.  He also urged that the reasons given
by the learned Single Judge  of the High Court in arriving at
the conclusion that the Trust Deed had also not been acted
upon, were wholly erroneous and without any substance.
Moreover, the trial court had also committed an error in
holding that only some of the properties were wakf properties
which should vest in the 1st defendant  while the other
properties were to be partitioned.  According to Dr. Siddiqui,
the trial court ought to have  held that the entire suit
properties were trust properties    and/or comprised a  Wakf-
al-al-Aulad.
It was  submitted that  the Appeal Court completely
misconstrued and/or misunderstood the principles governing
the creation of  wakfs and trusts in coming to the conclusion
that the Trust Deed had to  be  rejected in toto.  It was also
submitted that  although  it was nobody's case that that the
Trust Deed was in effect a Will, the Appeal Court arrived at an
extraneous finding that if the same was to be construed as a
Will, it could not operate on more than 1/3 of the net assets
for the benefit of a wakf which might have been created
thereby.  Dr. Siddiqui pointed out that the error in the
thought  process  of the High Court would be glaringly  
evident from its finding that once the trial court  found that
the Trust Deed was neither a gift nor a Will simpliciter, but
came  nearest to being  a non-testamentary  wakf, there was
no question of such a wakf  and there was no question  of it  
coming into force from the date of its creation.  
Dr. Siddiqui,  on the other hand, contended that  the
recitals in the  Trust Deed itself would indicate the nature of
the document.  It was urged that although the expressions
used in the document (Ext.D-7) seemed to indicate that late
Mohd. Imam Saheb had created a trust of  his properties, the
use  for which the trust properties and the usufructs were to
be utilized  made it clear that  Mohd. Imam Saheb's  real
intention was to create a wakf.  Dr. Siddiqui urged that the
Mohammedan Law recognized the formation of  private wakfs
for the benefit of the dedicator (wakif) and his family members,
which among Mohammedans  is considered to be a pious act.
Dr. Siddiqui submitted that all doubts relating to  the creation
of such wakfs were put at rest by the  enactment of  the
Musalman Wakf Validating Act, 1913.  Dr. Siddiqui also urged
that under the Indian Trust Act, 1882, there is  provision for
making a simple trust in the  English form, but there is no
concept   of family settlement as provided under the
Mohammedan Law for the creation of private wakfs  generally
known  as  Wakfs-al-al-Aulad.
Dr. Siddiqui  pointed out that each of the duties
entrusted to the trustees who were to come into the
management of the  properties after the death of  Mohd. Imam
Saheb, were recognized by Mohammedans to be pious and
charitable and also religious in nature  which gave the
document  the distinct flavour  of a  Wakf-al-al Aulad , which
fact had been correctly noticed by the trial court in respect  of
the properties included in the Trust Deed and/or Wakf-nama .  
Where the trial court had gone wrong was   in arriving at the
conclusion that properties subsequently acquired by the estate
of Mohd. Imam Saheb did not form part of the dedicated
properties and were, therefore, partible.
Since the principle of law being sought to be urged by Dr.
Siddiqui  regarding the creation  of a Wakf-al-al-Aulad   is well
established, there is no need  to refer to the various decisions
cited by him in that regard.
It was next contended that  mere declaration of an
intention to create a Wakf is  sufficient to create such a Wakf
and it  was not necessary that possession was required to be
delivered as in the case of a gift.  It was also  urged that from
the contents of a  document if it could be made out that the
executant had  wanted to create a Wakf-al-al-Aulad, though
not mentioned in  express terms, an inference in favour of  the
creation of  a Wakf could be drawn.  In support   of such
submission, reference was made to a decision of this Court in
the case of Garib Das and Ors. vs. Munshi Abdul Hamid and
Ors., reported in AIR 1970 SC 1035.  Reference was also made
to various other decisions of different High Courts which
explain the same principle.
On the question of Ext.D-21, which was  an unregistered
document said to have been executed on 10th April, 1963
cancelling the Trust Deed dated 29th February, 1960, it was
urged that the trial court had rightly chosen not to rely on the
same since  cancellation of a registered document could only
be done by virtue of  another registered document.
Dr. Siddiqui concluded on the  note that if it is accepted
that by virtue  of the Deed  of Trust, a Wakf-al-al-Aulad, was
in effect created, then the properties comprising the said Wakf
were not partible and the suit was liable to be dismissed and
the judgment and decree of the  High Court in its entirety and
that of the trial court  partly, were  liable to be set aside and
the suit was liable to be dismissed.
Mr. Mushtaq Ahmad, learned advocate, who  appeared
for some of the respondents did not dispute the different
propositions of law urged by Dr. Siddiqui, but contended that
they could not be applied to the facts of the instant case.  He
urged that in order to constitute a Wakf, the properties
dedicated must vest in God and even if the intention was to
create a Wakf-al-al-Aulad, the  ultimate benefit  must also vest
in God.  Mr. Ahmad  submitted that in the instant  case there
is no express dedication of the Wakf properties  in God and in
the absence  of such a provision, it could not be presumed
that the executant  had intended to create a Wakf and not a
simple English Trust as indicated from the document itself.  It
was also submitted that there is no legal bar in the creation of
a  trust for the objects indicated in the Deed of Trust (Ext.D-7),
though it could be contended that they are also the lawful
objects of a  Wakf-al-al-Aulad or even a  Public Wakf.
However,  according to Mr. Ahmad the Trust Deed had
not been acted upon,   as had been rightly found by the High
Court, inasmuch as, the executant   had reserved to himself
the power to alienate the  properties forming  the subject-
matter of the Trust Deed.  Furthermore, neither the executant
nor his descendants had  ever asserted that  the properties in
question constitute a trust.  It was urged that Mohd. Imam
Saheb  died intestate on  7th August, 1969 leaving behind the
suit properties, both movable and immovable, which  he had
acquired  during his lifetime and after his death  the same had
been jointly owned and possessed by the plaintiff and the
defendants as his heirs.  Since  the parties had  been unable
to arrive  at an amicable settlement,  in respect of their
respective shares in the suit properties, the plaintiff was
compelled to file a suit for partition and separate possession of
his 2/13 share therein.  It was urged  that the Release Deed
dated 18th August, 1958 was  not binding on the plaintiff since
it  had been executed only to satisfy the  wishes of Mohd.
Imam Saheb.  It was nothing  but a sham document, not acted
upon  and  it did not bind the plaintiff nor  did it  take away
the plaintiff's right to inherit the suit properties.
Interestingly, apart from  defendant No.7 (Mohd.
Khasim), all the other heirs of Mohd. Imam Saheb  supported
the plaintiff and none of them supported the  claim of
defendant No.7  that the  executant had  intended to create a
Wakf-al-al-Aulad  or  even a Trust.
In support of his  submissions that the executant of the
Release Deed did not prevent the plaintiff from  demanding   a
share in the estate of Mohd. Imam Saheb, reliance was placed
on a decision  of this Court in the  case of  Gulam Abbas vs.
Haji Kayyam Ali and  Ors.,  AIR 1973 SC 554, in which  it was
inter-alia observed  that the renunciation of  a  supposed right
based upon an expectancy, could not,  by any  test  found
there,  be considered  prohibited.  The  binding  force in future
of such a renunciation would, even according to strict  Muslim
jurisprudence, depend upon the attendant circumstances and
the whole course of  conduct of which it forms a part.
As will be evident  from what has been set out
hereinabove, the outcome of these appeals will depend on an
interpretation of the document executed  by Mohd. Imam
Saheb on 29th February, 1960 and  styled as a "Deed of Trust".  
As noticed hereinbefore,  the trial court had held that the said
document purported to create   a Wakf al-al-Aulad  in respect
of  the properties  indicated therein  and  that the said
properties could not form the subject-matter of a  partition
suit.  However, the trial court went on to hold that the other
properties forming part of the estate   of Mohd. Imam Saheb
were  his secular properties and were, therefore, partible
amongst his heirs.  The High Court reversed  the  said decision
of the  trial court  as far as  the finding regarding the  creation
of a  wakf is concerned.  The High Court, on  a construction of
the said  Deed, held that neither had a wakf been  created nor
a  valid trust and that both the Release Deed and the Trust
Deed were invalid  and the properties of Mohd. Imam Saheb
were capable  of being partitioned amongst his heirs.
On a perusal of the Release Deed dated 18th August,
1958 executed  by Mohd. Dastagir, the plaintiff in the suit,
and the Deed of Trust  dated 29th February, 1960 executed by
Mohd. Imam Saheb, we are unable to agree with the findings
both of the trial court  as well as the High Court for the
reasons hereinafter following.
A plain reading of the document dated 29th February,
1960 indicates that  Mohd. Imam Saheb had intended that his
properties, both movable and immovable, should  remain  in-
tact for the objects indicated in the Deed.  It is also  clear
from the recitals  in the Deed  that he did  not want his estate
to be  alienated by any of the trustees who would be in
management, by  reserving the power of alienation only  to
himself and  that too for buying other properties  which were
to  vest in the Trust.   The objects for which  the income   from
the properties were to be expended are mostly of a pious and
religious  nature.  According to Mohammedan jurists, the term
'Wakf'  literally means  dedication or  as noted by Mulla in his
"Principles of Mohammedan Law",  the permanent dedication
by a person  professing the Mussalman faith of any property
for any purpose recognized by  Mussalman law  as religious,
pious or charitable.   The desire of Mohd. Imam Saheb to tie
up the properties so that they would not be dissipated and the
objects on which the  usufructs of the properties  were to be
spent, most certainly appears to have influenced the thinking
of the trial court in holding that Mohd. Imam Saheb had
wanted to create a  wakf.  The said  reasoning was not
accepted  by the High Court.  However, the High Court also
went wrong in holding   that a valid trust  had not also been
created by the  document of 29th February, 1960.   In fact,
while we agree with the High Court on the first count, we are
unable to agree with the High Court on the second count.  In
other words, we  agree with the High Court's finding that no
wakf had been created  by the aforesaid document  but at the
same time  we are also  of the view  that it was  Mohd. Imam
Saheb's intention  to create a valid trust.
As urged both by Dr. Siddiqui and Mr. Mushtaq Ahmad,
in order to constitute a  wakf, there must be a permanent
dedication of the properties in question in favour of God
Almighty and  while the objects of  the wakf may initially be for
the benefit of the wakif's family  and other descendants, the
ultimate  beneficiary  had to  be God.  Neither  of the two
above conditions  are fulfilled by the document dated 29th
February, 1960.   The other important  test is the nature  of
inalienability of  the properties forming the   nucleus of  the
wakf.  Once a wakf is created,  the title of the  wakif  in the
dedicated property is extinguished  and vests in  God.  The
wakif is entitled  to reserve  power to alienate  any portion of
the wakf properties, but for the benefit of  the wakif.  In the
instant case, the executant had reserved to himself the power
to alienate the trust properties, but one of the conditions
stipulated in the deed was that  his two minor daughters were
to be given immovable  properties worth  Rs.8,000/-.  A
further direction was given by the executant that after his
death his daughters, Mymoona Bi and Fathima Bi, were each
to be given a  share of the immovable properties of the value of
Rs.8,000/- on condition that they would not be entitled to the
said  immovable properties if they had no male issues.    A
specific direction was given that the properties given to
Fathima Bi or Asha Bi would also  revert to the Trust if they
had  no male issues.          
The aforesaid directions  run contrary to the concept of
wakf and the more  appropriate  view appears to be that the
executant intended to create a simple English Trust.  
Although, in order to create a valid wakf it is not necessary to
use the term 'wakf' in the  document in question, except for
providing  for  the performance of  certain religious
ceremonies,  pious  and  charitable duties, there is no mention
that  the  dedicator  had  ever intended that the properties
forming  the subject-matter  of the trust should constitute  a
wakf.     The executant appears  to  have deliberately used the
expression "trustee" and not "Mutwalli"  which  would have
ended the controversy that has now arisen.
The law is quite clear  that  there is no  bar to a
Mohammedan  creating a simple English Trust.  It is not
always necessary that in order to make a  settlement  of his
properties, a Mohammedan has always to create a wakf.  In
fact, the said view has been expressed in a Division Bench
decision of the Madras High Court in  Kassimiah Charities
Rajagiri  vs. Secretary, Madras State Wakf Board,  AIR 1964
Madras 18.  In the  said case, while  confronted with a similar
question, the Division Bench observed that a Muslim can
endow  properties  to charities  either by  adopting his
favourite mode of creating a wakf or by endowing   property
conforming to the law of    Trusts.  The question whether a
particular endowment amounts to  a wakf  under the
Mohammedan Law or to a  Trust as recognized by modern
jurisprudence, will have  to be decided  primarily on a true
construction of the document establishing the charity.
However, it has also been  stated in the said  decision that  
vesting of a power  of alienation by way of exchange or  sale
under the document creating wakf is not inconsistent with the
document constituting a wakf under the Muslim  Law.  A
dedication to a wakf will not, therefore,  cease to be  such
merely because  a  power is reserved  in the Mutwalli  to
exchange the wakf lands with other lands or to sell  them and
purchase other lands so that the lands so taken in exchange
or  by purchase, might become  the subject of the wakf.
In the present case, the  power of  alienation has been
reserved only to  the founder  of the trust and all the other
trustees have been  prohibited from  doing so.  Accordingly,
the observations made in the aforesaid decision regarding the
power of alienation reserved to Mutwalli does  not  really  help
the case of the appellant who is interested in establishing that
the properties  were wakf properties.
In our view,   in the face of the recitals contained in the
document of 29th February, 1960, there was no material for
the High Court to observe that after taking all  the documents
together,   the  final irresistible   inference is that  there   was
no  valid trust nor a valid wakf   in the eye of  law.    Such a
finding is completely  contrary to the  document  itself and has
to be set aside.
As far as the Deed of Release is concerned, the same
loses much of its  significance  once it is established that the
properties forming the subject-matter of the document dated
29th February, 1960 comprises a trust.  The properties in
question, therefore vests in the trustees for the time being  in
management of the same and are not partible amongst the
heirs of late Mohd. Imam Saheb.
The Trust Deed also makes it clear that all  properties  
acquired in future must be considered to be part of the trust
properties  and hence the trial court erred in holding that
except for the  properties mentioned in the Trust Deed, the
other properties of  Mohd. Imam Saheb were secular in nature.
Consequently, both the judgments and decrees of the
trial court as well as that  of the High  Court are liable to be
set aside.  The appeals preferred against the common
judgment dated 5th October, 1998 passed by the Karnataka
High Court in the four appeals preferred against  the
judgment and decree of  the trial court are dismissed and the
suit filed  by  Mohd. Dastagir, respondent No.1 herein is
dismissed.
Having regard to the peculiar facts involved, the parties
will all bear  their own costs.