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.
