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Biba Jan v. Kalb Husain And Others

Allahabad High Court

Dec 1, 1908

Judgment

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Concise Analytical Summary of the Opinion (Griffin, J.)

Factual and Procedural Background

The plaintiff sought to set aside a wakfnama dated 2 November 1902 executed by Musammat Najiban, claiming (1) undue influence by Kalb Husain, (2) that Najiban was insane when she executed the deed, and (3) that the wakf was invalid because its objects were illegal or the endowment was illusory and in fact for the benefit of the mutawallis (Kalb Husain and his brother Ataullah). The suit asked also for possession of a half share in the property and for mesne profits.

This appeal is connected to First Appeal Nos. 340 and 341 of 1906. The two connected appeals (340 and 341) arose from suits to set aside a sale deed of 18 February 1903 in favour of Kalb Husain on grounds of insanity and undue influence. In those connected matters the plea of insanity failed and, in First Appeal No. 341 of 1906, the court held that the case founded on undue influence also failed. Evidence in the connected appeals was by consent read as evidence in the present appeal.

The court below dismissed the present suit, finding that Najiban was not insane and that undue influence was not proved. The appellate court (Griffin, J.) agreed with those findings and therefore did not rehearse the evidence in detail. The remaining issue considered was the validity of the wakfnama itself.

Legal Issues Presented

Whether the wakfnama dated 2 November 1902 should be set aside on grounds that it was executed under undue influence by Kalb Husain.
Whether Musammat Najiban was insane at the time of executing the wakfnama, thereby vitiating the instrument.
Whether the wakf was void because its objects were not legal (i.e., whether specified religious ceremonies were invalid under the donor’s school of law).
Whether the wakf was merely illusory and in substance a transfer for the personal benefit of the mutawallis (Kalb Husain and Ataullah), rather than a genuine charitable endowment.

Arguments of the Parties

Plaintiff's Arguments

The wakfnama was executed under the undue influence of Kalb Husain.
Musammat Najiban was insane when she executed the deed, invalidating it.
The wakf was invalid because (a) the objects were not legal under the relevant religious law and (b) it was an illusory endowment made effectively for the benefit of the mutawallis.

Respondents' Arguments

Counsel for the respondents (Mr. Abdul Raoof) repudiated any claim by the mutawallis to beneficial interest in the wakf income.
Respondents contended that the reference to "death anniversaries (barsi ammat)" should reasonably be understood to mean the death anniversaries of members of Najiban's family (a narrower interpretation of that object).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
First Appeal No. 341 of 1906	Previous appellate determination that the case founded on undue influence failed (and that the plea of insanity had failed in the connected proceedings).	The court relied on and referred to the reasons already given in that earlier decision in concluding that undue influence and insanity were not established in the present appeal.
First Appeal No. 340 of 1906	Connected appeal arising from similar facts; the proceedings were related though this appeal was ultimately compromised.	Evidence from that connected appeal had been read by consent and formed part of the factual record considered; the court noted the compromise meant it was unnecessary to decide that appeal here.

Court's Reasoning and Analysis

The court proceeded in two main stages: first confirming factual findings on undue influence and insanity, and second examining the validity and substance of the wakfnama and its objects.

1. On undue influence and insanity: The court agreed with the lower court's findings (and with the reasoning previously set out in First Appeal No. 341 of 1906) that Najiban was not insane when she executed the instruments and that undue influence was not proved. For that reason the court did not re-examine the detailed evidence at length.

2. On the nature and validity of the wakf:

The court reviewed the wakfnama's terms: it identified the endowed property (including an Imambara and a 5 biswa zamindari share in a 10 biswa patti) and the donor's clear statement that she "made a wakf of the whole of the said property" and thereby dedicated the entire property to religious and charitable purposes, appointing Kalb Husain and Ataullah as mutawallis with specified duties and restrictions (e.g., they could not sell or mortgage the endowed property).
The court examined the financial allocations set out in the wakfnama (annual expenses specified amounting to Rs. 1,000) and considered the contention that any surplus beyond Rs. 1,000 would inure beneficially to the mutawallis. The court observed that (a) the donor expressly dedicated the entire property to the service of God; (b) counsel for respondents repudiated any beneficial claim by the mutawallis; and (c) the onus lay on the plaintiff to show that the wakf was illusory in light of the property's value.
The court analyzed revenue figures from documents and testimony in the record: government revenue figures and village expenses were noted (e.g., government revenue and village expense amounts from 1310–1312 Fasli), and historical facts such as an earlier lease (1878–1892) at Rs. 2,000. Taking these figures and the management costs into account, the court concluded it was unlikely that there would be a very large surplus over and above Rs. 1,000 available for private benefit.
The court emphasized that the mutawallis were not given remuneration under the wakfnama and that they would be justified in employing a manager — an expense that would further reduce any surplus available to them personally.
On the legal validity of the objects: the parties were Sunnis and the respondents contended that celebration of the milad of Ali Murtaza was not valid according to the Hanafi school (while admitting milad of the Prophet is distinct and valid). The court noted the absence of any authority forbidding the celebration of Ali's birth and treated the Muharram appropriation (Rs. 600) as providing for charitable feeding of the poor — a clearly charitable object. The keeping of tazias was treated as a pious religious ceremony not restricted solely to the Shia sect, and the court accepted that the donor intended to perpetuate the religious ceremonies and charitable works she had carried out in life.
The court accepted the respondents' narrower interpretation of "death anniversaries (barsi ammat)" as reasonably referring to family death anniversaries and held that repairs of the Imambara were a legitimate object of wakf.
On balance, considering intention, documentary and oral evidence, and the financial realities, the court held the wakfnama was not illusory and there was a genuine intention to create a substantial wakf for pious and charitable purposes.

Holding and Implications

Holding: The appeal is DISMISSED.

Consequences and immediate effects:

The wakfnama dated 2 November 1902 is upheld as a valid religious and charitable endowment with legitimate objects.
The plaintiff's claims to set aside the wakfnama on grounds of undue influence, insanity, or that the wakf was illusory have been rejected.
The appeal was dismissed with costs, including fees in this Court on the higher scale (i.e., costs awarded against the appellant).

Broader implications: The opinion does not articulate any broader legal principle as a new precedent; it resolves the dispute on the facts and on the application of established principles (including reliance on the court's earlier reasoning in First Appeal No. 341 of 1906). No novel rule of law is announced beyond the court's factual and legal conclusions in this case.

Result: Appeal dismissed. (J. P. — "Appeal dismissed.")

Show all summary ...

Griffin, J.:— The plaintiff in this suit seeks to set aside a wakfnama, dated the 2nd of November, 1902, executed by one Musammat Najiban, and for possession of a half share in the property dealt with by the wakfnama, and for mesne profits. The plaintiff alleged that the execution of the deed was brought about by the undue influence of Kalb Husain, that Najiban was insane when she executed the deed and that no valid endowment had been created because the objects were not legal, and (2) because the endowment was illusory and really made for the benefit of Kalb Husain and his brother Ataullah, the mutawallis appointed by the wakfnama. This appeal is closely connected with First Appeal No. 341 of 1906 decided on the 27th of November, 1908, and also with another, First appeal No. 340 of 1906, which it has been unnecessary for us to decide inasmuch as the parties compromised it. The evidence in all these cases was by consent read as evidence in each case. The two connected appeals Nos. 340 and 341 of 1906 arose out of suits to set aside a deed of sale, executed by Musammat Najiban on the 18th of February, 1903, in favour of Kalb Husain on the grounds of the insanity of Musammat Najiban and the undue influence of Kalb Husain. The case of the plaintiff, so far as the plea of insanity was concerned, completely failed and we have given our reasons at length in First Appeal No. 341 of 1906 for holding that the case founded on undue influence has also failed. The court below decided in favour of the plaintiff in the connected cases on the ground that the transaction came under the provisions of section 16 of the Contract Act. But the present suit was dismissed, the court below being clearly of opinion that Najiban was not insane and that undue influence was not proved. We agree with the court below in this finding and we do not think it necessary to discuss the evidence particularly as we have already dealt with it in our judgment in First Appeal No. 341 of 1906.

2. There remains the question of the validity of the wakfnamo. In the court below this was certainly not the main ground of attack on the wakfnama, but it was raised by the pleadings and has been argued by Mr. Abdul Majid in support of the appeal. Najiban, it is clear from the evidence, was piously and charitably disposed for a number of years before her death. She had built an Imambnra at a cost of several thou-sand rupees. She was in the habit of keeping tazias and distributing gifts of food in charity. Her expenses in these acts of charity amounted to Rs. 1,000 or Rs. 1,200 a year. She took a special interest in these matters. Before her death she made a pilgrimage to Mecca and after her return she continued the same pious course of action. All this clearly appears from evidence. The endowed property, which of course includes the Imambara, is stated in the wakfnama to be worth Rs. 40,000. The landed property exclusive of the Imambara is worth Rs. 30,000. It appears that the tenants were somewhat unruly and there was considerable amount of litigation in realizing the rents. Part of the landed property consisted of a share in an alluvial mahal, the income of which was subject to fluctuation. The wakfnama is to the following effect:—

“Whereas there are a 5 biswa zamindari share in 10 biswa patti surkh in the village Gurgamvan, pargana Aonla, and a pucca newly built house used as Imambaia, No. 75/932, in Barielly near the library, bounded as given below, worth Rs. 40,000, and I am up to this time in proprietary possession thereof without the participation of any one, I have now in a sound state of body and mind without coercion and of my own accord made a wakf of the whole of the said property, i.e 5 biswas of the village Gurgawan and the house used as Imambara together with all the original and appended rights, zamindari appurtenance, sir land, groves, collection houses, abadi, bazar (market), all the sewai items and muafis, etc., including mahruka lands, for religious and charitable purposes subject to the following conditions and have appointed Kalb Husain, general attorney, and Ataullah, sons of Shaikh Sanaullah, as mutawallis (superintendents) of the endowed property and put the said mutawallis in possession thereof like myself. I shall get mutation of names in respect of the said zamindari share duly effected in the revenue department (Court).

1. The said mutawallis should collect rent and every sum of money due in respect of the endowed property, and pay the Government revenue, the village expenses and the salaries of the servants and out of the remaining amount of net profits they should pay under their own management Rs. 200 annually for the expenses of milad (birth anniversary) of the last of the Prophets (may the mercy of God be upon him) and that of Ali Murtaza in the months of Rabi-ul-awwal and Ramzan respectively, Rs. 600 for the expenses of making offerings and keeping tazias in honour of the chief of the martyrs, namely, Imam Husain and Hasan (may peace be on them) in the month of Muharram, and Rs. 200 for the expenses of the death anniversary of the dead persons and the repairs of the Imambara.

2. The said mutawallis shall, in no case, have power to sell or mortgage the endowed property, nor shall the said property be liable to pay the debt due by the mutwallis or to be sold by auction.

3. Should the said Mutawallis die without appointing any one as mutawallis or their representative, a qualified male descendant of the present mutawallis shall be appointed as mutawalli; no other person shall have a right to be appointed as mutawalli. On the other hand this order of succession shall remain in force for all eternity generation after generation. No committee or society can interfere in the endowed property inasmuch as the profits of the said endowed property have been dedicated for the maintenance of charitable purposes and offerings so that my name may be perpetuated in this world as well as in the next world and my soul benefited in the next world.

4. All the proceedings in the civil, criminal and revenue courts and in the Honourable High Court, Board of Revenue, Privy Council and all the departments in India relating to the affairs of the endowed property shall rest with and be taken under the control of the mutawallis.

5. I have made the endowed property God's property from this day and divested myself of all proprietary connection therewith. After agreeing to the aforesaid conditions, I have executed this deed of endowment, in order that it may stand as authority and be of use when needed.”

3. It will be noticed that the mutawallis are directed to collect the rents, then to pay the Government revenue, the village expenses and the salaries of the servants, and then to apply the net profits in certain proportions.

4. The actual amounts are set out. They come to a sum of Rs. 1,000. It is argued that the property must yield a net profit of more than Rs. 1,000 per annum and that as only Rs. 1,000 is appropriated, the balance would all come into the hands of the mutawallis, Kalb Husain and Ata-ullah, beneficially. As regards this it must be borne in mind that it is not only Rs. 1,000 which is appropriated by the donor to the service of God. She expressly says that the entire property is appropriated to the service of God. Mr. Abdul Raoof, Counsel on behalf of the respondents, repudiates all claim to any beneficial interest to any part of the income of the estate. If wet assume for the purposes of this branch of the case that the objects of the wakf were legal and that the wakfnama was duly executed, the onus of showing that having regard to the value of the property, the wakf was merely illusory lay upon the plaintiff. We have been referred to the extract from the khewat af 1310 Fasli, exhibit 15. C, in which the Government revenue of the entire 10 biswa share owned by Najiban is shown as Rs. 3,912 and to an extract from Jamabandi for 1310 Fasli showing the income of the 10 biswa share for that year. The patwari of the village was examined as one of the plaintiff's witnesses. He stated that the Government revenue was Rs. 4,537-14-7. That statement was allowed to go unchallenged and it was accepted by the court below. This witness further stated that the village expenses according to the account furnished to him by the agent amounted in 1312 Fasli to Rs. 2,244-2-9. The village expenses and the expenses of the management seem no doubt very high, but we think it very probable that for many years the village had been managed in an extravagant way. Musammat Najiban had been a prostitute and a dancing girl. It appears that the whole 10 biswa share had been leased out for a term of 14 years from 1878 to 1892 at a rent of Rs. 2,000. This would leave only Rs. 1,000 as the profits of the endowed property. This lease had expired in 1892 and the estate is now probably of greater value but we do not think that there would be a very large surplus over and above Rs. 1,000 after defraying the pay of the servants and the costs of managing the estate. Under the wakfnama the mutawallis get no remuneration for their services and they would of course be justified in paying for the services of a manager of the property. Taking all the evidence into consideration we are clearly of opinion that it can not be said that the main object of the wakfnama was to benefit the mutawallis under the guise of religious and charitable endowment, On the contrary there was a dedication of the entire property to the objects set out in the wakfnama.

5. The only point that remains is the question of the validity of the objects of the endowment. The parties are Sunnis and it is contended that to endow the property for the purpose of celebrating the milad of Ali Murtaza is not good according to Hanafi School, although it is admitted that a like celebration of the milad of the Prophet stands on quite a different footing and is valid. The appropriation of Rs. 600 to Muharram is also challenged on like grounds. We have been referred to no authority forbidding the celebration of the birth of Ali Murtaza. As to the Muharram expenses, the deed provides for the making of the offerings, i.e feeding of the poor on the occasion of the Muharram. This is clearly a charitable object and the keeping of the tazias is a pious and religious ceremony not restricted solely to the Shia sect. It may be that the mode of observing the ceremony differs in the case of each sect, but we are satisfied that in the present case the intention of the donor was to continue and perpetuate the religious ceremonies and charitable works in which she had been engaged during her life. The remaining Rs. 200 is appropriated to the death anniversaries (barsi ammat) and to the repairs of the Imambara. The latter is admittedly ‘a legitimate object of wakf. The contention of the respondents is that the death anniversaries (barsi ammat) should be understood as meaning the death anniversaries of the the members of Najiban's family and we think that this is a reasonable interpretation to be put on the words. We have come to the conclusion after considering the evidence and the arguments that the wakfnama was not illusory and there was an intention of creating a substantial wakf for pious and charitable purposes and we hold that the objects for which the wakf was created were valid. We therefore dismiss this appeal with costs including in this Court, fees on the higher scale.

J.PAppeal dismissed.