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Syeda Bibi And Anr. v. Mughal Jan And Ors.
Structured Summary of the Opinion
Factual and Procedural Background
This appeal arises from a decree of the Subordinate Judge of Jaunpur in a suit by plaintiffs seeking recovery of the property of the late Syed Hasan Ali by right of inheritance and a declaration that a waqf-namah dated 27 August 1886 was invalid and ineffective according to Shia (Imamia) law.
The waqf-namah, executed by Syed Hasan Ali (a Shia Muslim), purported to create a perpetual waqf of his movable and immovable property (except for certain small exceptions) for charitable purposes and to benefit specified persons. The deed named the widow, Mughal Jan, as mutawalli from the date of execution and, after her death, specified certain nephews and the eldest family member in successive generations as mutawallis. It provided that Mughal Jan should receive profits during her life subject to deductions for enumerated expenses (including expenses of majlis, a mosque, constructing a well, feeding travellers, and expenses on his death). Paragraph 11 contained a direction that "This deed of waqf shall come into force from the date of its registration; no one shall be at liberty to take any objection, &c."
Part of the property comprised mortgage securities, which the Subordinate Judge held were not proper subject-matter of a waqf; the Lower Court found that, except as to mortgage securities, the property had been validly dedicated as a waqf and dismissed the plaintiffs' claim except in respect of the mortgaged property. The plaintiffs appealed.
Legal Issues Presented
- Whether the waqf is illusory because its primary effect is to benefit the widow, nephews and their male descendants indefinitely, leaving any substantial charitable benefit only after their extinction.
- Whether, under Shia law, acceptance of the waqf by the beneficiaries must be proved by substantive evidence (and whether such evidence was lacking), rather than being inferred.
- Whether the clause making the waqf take effect only from the date of registration (i.e., making the waqf dependent on a future event) is fatal to its validity under Shia law, which disallows suspending the operation of a waqf upon a future contingency.
Arguments of the Parties
Appellants' Arguments
- The waqf is illusory: it was intended chiefly to benefit the widow and specified nephews (and their male descendants) and only upon their extinction would funds be applied to charities, so the dedication is not a genuine charitable endowment.
- Under Shia law, proper acceptance of a waqf by beneficiaries must be established by substantive evidence; acceptance cannot be left to inference, and such proof was not produced here.
- The provision that the waqf shall come into force only on registration is fatal: Shia law does not permit a waqf to be made dependent on a future event, and making the operation of the waqf contingent on registration invalidates it.
Respondents' Arguments
- Counsel for the respondents (Mr. Conlan) argued that there was no suspension of the waqf in practice because the direction that the deed should come into force from the date of registration was merely declaratory of the law: the Registration Act provisions meant the deed could not affect immovable property before registration (citing Section 49, Indian Registration Act).
- Implicitly, the respondents relied on the contention that, as to immovable property, registration would cause the deed to operate from the date it would have operated absent the registration formalities (referencing Section 47 of the Registration Act), and therefore the executant's condition did not render the waqf contingent in the problematic sense.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Agha Ali Khan v. Altaf Hasan Khan (1892) I.L.R. 14 All. 429 | Recognized and explained the Shia doctrine of tanjiz (that a waqf must not be made contingent upon a future event) and reviewed textual authorities concluding that a waqf suspended on a future contingency is void. | The Court relied on the principle from this case (as expounded by Mr Justice Mahmood) that tanjiz requires a waqf not be contingent on any future event, and applied that rule to hold the present waqf invalid because it was expressly made to take effect only upon registration (a future contingency). |
Court's Reasoning and Analysis
The court's analysis focused on the Shia law requirement (doctrine of tanjiz) that a valid waqf must take effect immediately and not be made contingent upon a future event. The opinion cites textual authorities (Baillie's Imamia Law; annotations to Tagore Lectures; Sharah Lamah Damishkia) explaining the rule that "waqf should be made at once" and that an appropriation "cannot be made to depend on the occurrence of an event (in future)" unless the contingency already exists.
The Court noted paragraph 11 of the instrument which expressly states the waqf "shall come into force from the date of its registration," thereby making the dedication contingent upon registration. The Court analyzed the respondents' argument invoking the Registration Act (Section 49 — that no document shall affect immovable property unless registered; and Section 47 — that registration may relate back to the time when an instrument would have commenced to operate) and gave two responses:
- First, the waqf purported to deal with movable as well as immovable property; movable property does not require registration to take effect, so the executant's direction postponing operation until registration would, as to movables, actually suspend the waqf for the period before registration.
- Second, while registration may make a registered instrument operate from the date it would have commenced to operate if registration were unnecessary, that statutory provision cannot override an express condition by the executant that the instrument shall only become effectual upon registration. In other words, the executant's explicit stipulation that the waiver take effect only from registration prevents the registration act's backdating effect from curing the contingency problem.
The court also considered and rejected the argument that paragraph 11 was repugnant to paragraph 1 (which appointed Mughal Jan as mutawalli from date of execution) and that the rule of construction for repugnant clauses should render paragraph 1 prevailing. The court held there was no such repugnancy: paragraph 1 gives a nominal appointment dating from execution, but paragraph 11 clearly suspends the powers and duties so they will arise only upon registration; the appointment is effectively post-dated by paragraph 11.
Because the executant had precisely and expressly fixed the time from which the endowment should be effectual to be the date of registration — a future contingency — the court concluded that the waqf was suspended on an uncertain future event and therefore invalid under the established Shia rule. The court explicitly stated that, given this conclusion on the registration point, it was unnecessary to decide the other two issues raised by the appellants.
Holding and Implications
Holding: The Court held that the deed of 27 August 1886 was ineffectual to create a valid waqf of the property of the late Syed Hasan Ali because the instrument expressly made the waqf take effect only upon registration, thereby rendering it contingent upon a future event contrary to the Shia doctrine (tanjiz).
Consequential orders given by the Court (direct effects on the parties):
- The Court allowed the appeal and set aside the decree of the Lower Court insofar as the plaintiffs' claim had been partly dismissed.
- The Court declared the waqf-namah of 27 August 1886 ineffectual to create a valid waqf.
- In modification of the Lower Court's decree, the Court granted the plaintiffs a decree as claimed, awarded future mesne profits, and ordered costs in both Courts.
The opinion does not purport to lay down any novel legal principle beyond the application of the established Shia doctrine that a waqf must not be made contingent on a future event; it resolves the dispute on that basis and modifies the decree accordingly.
and Burkitt, J.
1. This is an appeal from a decree of the Subordinate Judge of Jaunpur in a suit brought by the plaintiff for the recovery of the property of the late Syed Hasan Ali by right of inheritance, and for a declaration that a waqf-namah of the 27th of August, 1886, was invalid, and in-effectual according to Shia law.
2. Syed Hasan Ali, who belonged to the Shia sect of Muhammadans, on the 27th of August, 1886, executed the deed which has given rise to this litigation. In it, after a recital of the uncertainty of life, the executant, "with a view to earn merit in the next world and to benefit the persons mentioned in this document," made a perpetual waqf "for charitable purposes, and to benefit the persons mentioned" in the document according to the Muhammadan law of the Imamia sect of the whole of his movable and immovable property, with the exception of some small portions of property which he specified, subject to the conditions and details which follow.
3. The deed then provides in paragraph 1 that from the date of its execution his wife, the defendant Mughal Jan, shall be mutawalli, and that after her death certain members of the family expressly mentioned, and after them the eldest member of the family from generation to generation should be mutawallis. In paragraph 2 there is a declaration that Mughal Jan shall receive during her life the profits of the properties, after deducting the expenses mentioned in paragraphs 3, 4, 5, 6, 7 and 8, and other expenses, connected with the management, &c., of the waqf properties, and (3) that after her Syed Aulad Husain, Syed Sarfaraz Husain and Syed Asghar Husain, his nephews, shall receive the profits after deduction of expenses, and that when any of these persons or their male descendants how low so ever, are no longer in existence, the entire profits from the endowed property shall be spent in good deeds and proper charities. Then in paragraphs 3, 4, 5, and 8, provision is made for defraying out of the income of the property the following expenses, viz.-
(1)The expenses of majlis as the appropriator used to do.
(2) The expenses of a mosque situate near his house.
(3) The expense of constructing a well.
(4) The feeding of travellers.
(5) The expenses upon his death of holding majlis, recitation of Quran and feeding poor persons.
4. In paragraph 11 is the following important direction, namely:
"This deed of waqf shall come into force from the date of its registration; no one shall be at liberty to take any objection, &c."Part of the property of Syed Hasan Ali consisted of mortgage securities, which are not the proper subject-matter of a waqf. The Subordinate Judge held that, save and except in respect of the mortgage securities, the property was validly dedicated and created a waqf, and he dismissed the claim of the plaintiffs save in regard to the mortgaged property. Hence this appeal. Three grounds of objection to the deed have been pressed in argument before us on behalf of the appellants. First, it is said that the waqf is illusory, that the object of it was merely to benefit the widow and the nephews of the waqif, and the male descendants of the nephews for all time, and that it was only after the extinction of male descendants of the nephews that any substantial portion of the property was made available for good deeds and charities; secondly, it was contended that according to Shia law, acceptance of the waqf by the beneficiary must be proved by substantive evidence, that acceptance cannot be a matter of inference merely, and that substantive evidence of the fact was not adduced; and thirdly, it is said that the direction in the deed that the waqf shall only come into force from the date of registration of the deed is fatal to the validity of it, inasmuch as under the Shia law, the operation of a waqf cannot be suspended or made to depend upon some future event. From the view which we hold as regards this last question, it is unnecessary for us to determine the earlier questions which have been discussed.
5. Amongst the conditions which relate to a valid waqf is the condition "that it must be entirely taken out of the waqif or appropriator himself, so that if the appropriation is restricted to a particular time or made dependent on some quality of future occurrence, it is void" (Baillie's Imamia law, page 218). Quoting from Mafateh, Mr. Shama Churun Sircar in the annotations to his Tagore Lectures of 1874, writes at page 471 as follows: "Without difference of opinion waqf should be made at once; it cannot be made to depend on the occurrence of an event (in future) unless the same be quite certain and positive." And again at page 472 of the same Lectures, he gives the following illustration of the rule: "If one should say 'I have appropriated when the beginning of the month should come, or if Zayid will arrive, the appropriation would not be valid.'" In this he refers to Sharaya-ul-Islam, pp. 236 and 237.
5. Mr, Justice Mahmood elaborately reviewed the various texts on this subject in his judgment in the case of Agha Ali Khan v. Altaf Hasan Khan (1892) I.L.R. 14 All. 429 and, amongst other quotations, gives at, p. 466 an extract from the Sharah Lamah Damishkia, which is as follows: "Besides above mentioned matters tanjiz is one of its (waqf's) conditions. Therefore if he (the waqif) has suspended it upon any contingency or quality it is void, except in cases when the contingency already exists, and the waqif (appropriator) is aware of its existence, such as his saying 'I have made this waqf if to-day is Friday,' such as is the rule in regard to other contracts." The learned Judge then observes that "it is clear from these texts that the doctrine of tanjiz, which is unanimously approved by the highest authorities of the Shia law, requires as one of the essential conditions precedent to the validity of a waqf that it should not be rendered contingent upon any future event, whether such event is likely or possible to occur, or even when it is certain to occur, such as the beginning of the next month or the occurrence of the death of the waqif, i.e. the appropriator."
6. In the present case the appropriator made the waqf to depend upon the happening of a future event, that is, upon the registration of the waqf-namah. One of the conditions of the instrument was that it should only come into force on the date of its registration, that is, that it should have no force or validity unless and until the document was registered. As a matter of fact, the registration was not effected until a week after the execution of the deed had elapsed, so that for one week the operation of the waqf was suspended. There was no obligation on the part of the executant to have the deed registered at all; if he had chosen not to register it during his lifetime, the dedication would have remained incomplete, and the waqf-namah been suspended or left in abeyance. It has been argued by Mr. Conlan on behalf of the respondents that there was no suspension of the waqf created by the deed, that the direction that the deed should come into force from the date of its registration was only declaratory of the law, inasmuch as the deed could not take effect before registration by reason of the provision of the registration act that no document shall affect any immovable property unless it has been registered (Section 49, Indian Registration Act). There are two answers to this argument. In the first place, this statement is not strictly accurate, inasmuch as the waqf-namah purports to deal with movable as well as immovable property, and as regards movable property it would operate as from its date without registration. In the second place, as regards immovable property the deed, when registered, would operate from the time from which it would have commenced to operate if no registration had been required, and not from the time of registration (Section 47, Registration Act). So that, but for the condition that the deed should only come into force on the date of registration, it would on registration operate as from the day of its execution.
7. There being this precise direction by the waqif that the endowment is to become effectual only on the happening of an uncertain event, there is nothing in the Registration Act which would make it to operate from the date of execution. If there had been no such direction by the waqif, then according to the Registration Act the deed on registration would have effect from the date of its execution; but such is not the case when, as here, an executant fixes time from which the deed is to come into force.
8. But it is further argued that the condition contained in paragraph 11 is repugnant to the direction contained in paragraph 1, namely, the direction that from the date of the execution of the deed Mughal Jan shall be mutawalli of the endowed property, and that there being a repugnancy in the two paragraphs, the first in the case of a deed must prevail. We do not think that there is any such repugnancy as renders it necessary for us to apply the rule of construction which is relied on. The executant by the deed no doubt declares that Mughal Jan shall be the mutawalli from the date of execution, that is, her appointment as such dates from execution; but by the subsequent provision in paragraph 11, her powers and duties are suspended so as to spring into existence only upon registration. Her appointment nominally made on the day of execution, is in effect post-dated by the subsequent direction in the deed.
9. Reading the deed then in its entirety, it appears to us to be manifest that the executants intended that the deed should take effect and operate only in case and when it was registered.
10. For these reasons we think that the alleged waqf is invalid, and not binding on the plaintiffs. We therefore allow the appeal, set aside the decree of the Lower Court, so far as the claim of the plaintiffs was partly dismissed, and we declare that the deed of the 27th of August, 1886, in the pleadings mentioned, was ineffectual to create a valid waqf of the property of the late Syed Hasan Ali, and in modification of the decree of the lower Court we give a decree as claimed with future mesne profits and also costs in both Courts.
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