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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\026in-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

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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

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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

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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.

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       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

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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 \026al-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

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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

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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.