Citation Codes

Equivalent Citations

citation codes

Case Number

First Appeal No. 73 of 1937, from a decree of Ratan Lal, Civil Judge of Allahabad, dated the 2nd of November, 1936.

Attorney(S)

Sir Syed Wazir Hasan, Messrs Shiva Prasad Sinha, Hyder Mehdi and Zafar Mehdi, for the appellant.
Messrs S.K Dar, Mushtaq Ahmad, G.S Pathak, Amhika Prasad and Inam-ullah, for the respondents.

Judges

Sir John Thom, C.J
Ganga Nath, J.

Acts

provisions of order I, rule 10(2),
provisions of order XLI, rule 4,

See more information ...

Smart Summary

Structured Summary of the Opinion (Thom, C.J. and Ganga Nath, J.)

Factual and Procedural Background

This judgment disposes of two appeals heard together: F.A. No. 73 of 1937 and F.A. No. 113 of 1937.

F.A. No. 73 of 1937: The appeal was filed by the defendant in a civil suit in which the plaintiffs sought possession of a share in property formerly belonging to Syed Madad Ali. Syed Madad Ali executed a wakf deed dated 7 May 1893 and died on 24 December 1894. The plaintiffs alleged that the wakf deed was invalid because the wakif reserved for himself an annual maintenance allowance of Rs. 420 (claimed by plaintiffs to be a private benefit rather than remuneration as mutwalli). The defendant contended that the allowance represented the wakif's salary as mutwalli and pleaded that the plaintiffs' claim was barred by limitation. After Madad Ali's death, a revenue court had held the wakf deed valid, and Syed Sher Ali (defendant No.1, son of the wakif) managed the property, disbursing income per the wakf's provisions.

F.A. No. 113 of 1937: The learned Civil Judge had held that Mst. Chamela, who is mentioned in the wakf deed, was the lawfully wedded wife of Syed Madad Ali. That conclusion adjusted the shares of the plaintiffs and made defendants Nos. 5–8 (descendants of Mst. Chamela) legitimate heirs entitled to a share. Plaintiff No.2 (Syed Anwar Ali) appealed only against the portion of the decree fixing his share. During the appeal he filed an application stating that he had reached a compromise with defendants Nos. 5–8 and that he would not press the appeal. Other parties (including Sher Ali, defendant No.1, and others) applied for leave to prosecute the appeal in his stead.

Legal Issues Presented

Whether the wakf deed dated 7 May 1893 is valid given that the wakif reserved an annual maintenance allowance (i.e., whether reservation of an interest for the wakif invalidates the wakf).
Whether the plaintiffs' claim to possession is barred by limitation in view of long possession by Syed Sher Ali as mutwalli under the wakf.
Whether, in relation to F.A. No. 113 of 1937, parties other than the appellant who withdrew (and other applicants) should be permitted to prosecute the appeal or be added/transposed as appellants under Order XLI, rule 4 and Order I, rule 10(2).
As a subsidiary procedural question, whether the court should decide whether an invalid wakf creates a charge in favour of the wakf beneficiaries (raised but explicitly left undecided).

Arguments of the Parties

Plaintiffs' Arguments

The wakf deed of 7 May 1893 was invalid because Syed Madad Ali reserved a maintenance allowance of Rs. 420 per year for himself in his private capacity (i.e., as owner), not as mutwalli.
They sought declaration of their right to possession of the shares in the property that Madad Ali purported to endow.

Defendant's Arguments

The wakf deed was a valid wakf; the reserved allowance represented the wakif's salary as mutwalli.
The plaintiffs' claim to possession was barred by limitation because Syed Sher Ali had managed and possessed the property under the wakf for a long period and plaintiffs had acquiesced in the earlier revenue court decision recognizing mutation in Sher Ali's name.
With respect to the second appeal, applicants (other than the withdrawing appellant) sought leave to prosecute the appeal on the basis that they had an interest in the outcome.
It was also argued (relying on a bench decision) that even if the wakf deed were invalid, it might have created a charge in favour of the wakf beneficiaries (an argument the Court did not decide).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Abadi Begum v. Kaniz Zainab (Privy Council)	The principle that a wakf deed under which the wakif reserves any interest in the endowed property is invalid in its entirety: "it is a condition of the validity of the wakf that the wakif should not reserve any interest ... and that if he did, the wakf was void not merely in respect of the reservation but in its entirety."	The Court applied this principle to the 7 May 1893 deed, holding that because the wakif reserved a substantial benefit (the Rs. 420 maintenance allowance) for himself, the wakf deed is wholly void.
Muhammad Munawar Ali…(Defendant) v. Rasulan Bibi…(Plaintiff) (Bench of this Court)	That a mutwalli in possession under a wakf deed subsequently held invalid does not thereby acquire an adverse title by prescription against the wakif's heirs so long as his possession remained that of a trustee/mutwalli and he professed to act as such; a demand and refusal would be needed to convert possession to an adverse title.	The Court relied on this bench decision to conclude that Syed Sher Ali's long possession as mutwalli did not bar the plaintiffs' claim by limitation because his possession never changed in nature from that of mutwalli.
Muhammad Munawar Ali v. Razia Bibi (Privy Council)	Upholding the principle in the bench judgment that a mutwalli's possession under a failed wakf remains trustee-like and not adverse absent conduct constituting a hostile claim.	The Court cited the Privy Council's upholding of the bench decision to reinforce that the limitation plea fails where a mutwalli's possession remained trustee-like and there was no demand refused or assertion of adverse title.
Mohammad Irfan Ali v. Mohammad Tahir Ali (Bench decision of this Court)	Authority invoked for the contention that an invalid wakf might still create a charge over the property in favour of the beneficiaries.	The Court noted the argument based on this decision but expressly declined to decide whether such a charge was created in the present case and observed that, if such a charge exists, it cannot be declared or given effect to in these proceedings.

Court's Reasoning and Analysis

The Court addressed the two principal issues in F.A. No. 73 of 1937 and the procedural application in F.A. No. 113 of 1937.

On the validity of the wakf deed:

Examination of the terms of the wakf deed showed that Syed Madad Ali expressly reserved for himself an annual maintenance allowance of Rs. 420 out of the property purportedly endowed.
The Court rejected the defendant's contention that the allowance was intended to be the wakif's salary as mutwalli. The deed itself allowed the wakif to appoint another mutwalli and Syed Madad Ali did appoint Syed Sher Ali as mutwalli before his death; despite relinquishing the office of mutwalli, Madad Ali was still expressly entitled under the deed to draw the maintenance allowance. On the face of the deed, the allowance was a reserved benefit for the wakif.
Relying on the Privy Council decision in Abadi Begum v. Kaniz Zainab, the Court applied the governing principle that a wakf in which the wakif reserves an interest for himself is invalid as a whole. Consequently, the wakf deed of 7 May 1893 was declared wholly void.

On the question of limitation:

The Court considered authorities (the bench decision in Muhammad Munawar Ali and its confirmation by the Privy Council in Muhammad Munawar Ali v. Razia Bibi) which hold that a mutwalli who occupies property under a wakf later held invalid does not acquire an adverse title by prescription where he continues to act and hold as a trustee/mutwalli and never asserts an adverse title; only a demand-and-refusal or other conduct demonstrating a hostile claim would convert possession into adverse possession.
Applying that principle to the present facts, the Court found that Syed Sher Ali had continuously held the property as mutwalli and had not asserted any other title; there was no evidence of a demand made by the heirs that was refused in a manner changing the nature of his possession to an adverse one. Thus the plaintiffs' claim was not barred by limitation.

On the subsidiary contention about a charge created by the invalid wakf:

The Court observed the argument based on the bench decision in Mohammad Irfan Ali v. Mohammad Tahir Ali that an invalid wakf might create a charge in favour of beneficiaries. The Court declined to decide that question in disposing of the appeal, noting only that if such a charge existed it could not be declared or given effect to in the present proceedings.

On the procedural applications in F.A. No. 113 of 1937 (adding or allowing parties to prosecute the appeal):

The Court reviewed the wide discretionary powers conferred by Order XLI, rule 4 (power for one of several plaintiffs/defendants to appeal on a ground common to all) and Order I, rule 10(2) (power to strike out or add parties or transpose their status where necessary to adjudicate the suit completely).
However, the Court emphasized that the exercise of such powers is fact-specific and equitable. The appeal that the withdrawing appellant (Plaintiff No.2) characterized as withdrawn attacked only the portion of the decree fixing his share; the whole decree was not challenged. The proposed applicants seeking leave to prosecute were not part of the appellants' array and had not independently contested the particular findings (for example, Sher Ali had not challenged the trial court's conclusion that Mst. Chamela was lawfully wedded to Madad Ali and that defendants Nos. 5–8 were legitimate heirs).
Given the specific course of the proceedings (what each party had or had not challenged) and the unexplained decision of some parties not to challenge certain findings at trial, the Court was not satisfied that it should exercise its discretion to allow the applicants to prosecute the appeal. The applications to be permitted to prosecute the appeal were dismissed.

Holding and Implications

Final Holdings:

F.A. No. 73 of 1937: DISMISSED. The court upheld the learned Civil Judge's conclusion that the wakf deed dated 7 May 1893 is invalid because the wakif reserved a substantial benefit for himself, and that the plaintiffs' claim is not barred by limitation.
F.A. No. 113 of 1937: DISMISSED. The applications by parties to be permitted to prosecute the appeal (after the original appellant withdrew) were dismissed; those applicants must bear their own costs.

Direct consequences for the parties:

The wakf deed of 7 May 1893 is declared wholly void; the plaintiffs' right to claim possession of their share is unaffected by limitation given the trustee-like nature of the mutwalli's possession.
The Court declined to adjudicate whether the invalid wakf nevertheless created a charge in favour of the beneficiaries and observed that, even if such a charge existed, it could not be declared or given effect to in these proceedings.
Appeal No. 73 of 1937 was dismissed with costs (against the appellant). Appeal No. 113 of 1937 was dismissed, parties to bear their own costs.

The Court's conclusions rest on application of established authorities cited in the opinion; the judgment applies those precedents to the facts rather than purporting to state any novel legal principle beyond the cited decisions.

Show full summary ...

Sher Ali v. Hamid Ali

Thom, C.J and Ganga Nath, J.:— These are two appeals which may be conveniently disposed of in one judgment.

First with regard to F.A No. 73 of 1937. This appeal is by the defendant in a suit in which the plaintiffs claim possession of a certain share in property which at one time belonged to one Syed Madad Ali.

Syed Madad Ali died on the 24th of December, 1894. Shortly prior to his death, on the 7th of May, 1893, he made a wakf of the property in which the plaintiffs claim a share.

The plaintiffs averred that the wakf deed was invalid Inasmuch as under the deed the wakif had reserved for himself a certain benefit in the shape of a maintenance allowance of Rs. 420 a year not as mutwalli but in his private capacity as owner of the property.

The defence to the suit is that the wakf deed of the 7th of May, 1893, was a valid wakf. It was contended that the allowance which the wakif reserved for himself represented his salary as mutwalli. It was further pleaded that the plaintiffs' claim to possession of a share in the property in suit was barred by limitation. Shortly after the death of Syed Madad Ali there was a contest in the revenue court on the question of mutation. It was there held that the wakf deed was a valid wakf. Thereafter apparently the plaintiffs, who are amongst the heirs of Syed Madad Ali, were content to allow the defendant No. 1, Syed Sher Ali, a son of the wakif to manage the property and to disburse the income thereof in accordance with the provisions of the wakf. In these circumstances it was maintained for the defendant that the plaintiffs' claim for possession was barred.

Two questions arise for consideration in this appeal. First as to the validity of the wakf deed and secondly as to whether the plaintiffs' claim is now barred by limitation.

It is abundantly plain from the terms of the wakf deed that Syed Madad Ali reserved for himself an annual maintenance allowance out of the property of which he purported to make a wakf. This maintenance allowance cannot be taken to have been intended to be his salary as mutwalli. It is true that he himself was the first mutwalli but under the terms of the deed he reserved for himself the right to appoint another mutwalli. He did in fact before his death appoint defendant No. 1, Syed Sher Ali, as mutwalli and under the turns of the wakf deed despite the fact that Syed Madad Ali had relinquished office as mutwalli he was clearly entitled to draw maintenance allowance of Rs. 420 a year.

It is well settled that a wakf deed under which an interest is reserved for the wakif is invalid in its entirety. In this connection reference may be made to the case of Abadi Begum v. Kaniz Zainab(1). In that case the Privy Council considered the effect of the reservation by the wakif of an interest in the estate of which he purported to make a wakf; and they clearly approved of the principle “that it is a condition of the validity of the wakf that the wakif should not reserve any interest in the endowed property for himself and that if he did, the wakf was had not merely in respect of the reservation but in its entirety.”

This decision of the Privy Council concludes the question as to the validity of the wakf. We hold that inasmuch as the wakif has reserved a substantial benefit for himself out of the endowed property the wakf deed is wholly void.

So far as the question of limitation is concerned this also in our judgment is clearly concluded by a decision of the Privy Council. In Muhammad Munawar Ali…(Defendant); v. Rasulan Bibi…(Plaintiff).*(2) a Bench of this Court held that a mutwalli who had been in possession of property under a wakf deed which was held to be invalid did not prescribe a title adverse to that of the heirs of the wakif. In the course of the judgment in reference to the conduct of the mutwalli it is observed: “In all his acts in the administration of the wakf he professed to act as trustee or mutwalli of the endowed property… The wakf having failed he held the property as trustee for those entitled, under a legal obligation to hand it over to them on demand. Had such a demand been made and refused there would be good ground for holding that his subsequent possession was adverse to the true heirs. Nothing of the kind is alleged; there is not an atom of evidence to show any change in the nature of Syed Kaim Ali's possession from the day when he assumed possession of his own and his wife's property as mutwalli in 1881 down to his death in 1895.” This decision was upheld by the Privy Council in Muhammad Munawar Ali v. Razia Bibi.

Now in the present case it is not in dispute that Syed Sher Ali has held the property which Madad Ali purported to endow from the date on which he took possession down to the date of the institution of the suit as mutwalli. He has asserted no other title than that of manager of the property.

It was contended for the appellant that Syed Sher Ali's possession must be held to have been adverse to that of the plaintiffs who are amongst the heirs of Syed Madad Ali upon the ground that the latter had in fact made a demand for possession of the property in the revenue court after the death of Madad Ali. It may well be that on the question of mutation there was a contest between the appellant and the plaintiffs. The plaintiffs acquiesced in the decision of the revenue court that Syed Sher Ali's name should be mutated and did not pursue their claim to possession in the civil court until the year 1934. The important point is, however, not that the plaintiffs contested Syed Sher Ali's right to mutation in 1895, but that the nature of Syed Sher Ali's possession did not change. It is true that in the case above referred to there is the observation that had the heirs made a demand against the mutwalli the possession of the mutwalli would have been adverse. That would only have been so, however, had the mutwalli set up a title adverse to that of the claimants. The decision that the claim of the plaintiffs in the suit was not barred by limitation turned not on the fact that no demand for possession had been made but on the fact that the nature of the mutwalli's possession had never changed. His possession all along had been that of mutwalli.

The defendant appellant Syed Sher Ali is one of the heirs of Syed Madad Ali. He has purported to hold the property in suit all along as mutwalli under the wakf which in the end of the day has been held to be invalid. In these circumstances in view of the decision of the cases above referred to, namely Muhammad Munawar Ali…(Defendant); v. Rasulan Bibi…(Plaintiff).* and Muhammad Munawar Ali v. Razia Bibi, the plea that the plaintiffs' claim is now barred by limitation must be repelled.

One further point was urged on behalf of the appellant to which it is necessary to make only a brief reference. On the authority of the Bench decision of this Court in Mohammad Irfan Ali v. Mohammad Tahir Ali(3) it was contended that even though the wakf deed was invalid it created a charge over the property in suit in favour of the beneficiaries under the wakf deed. We do not consider it necessary in the disposal of this appeal to decide the question whether a charge has been created in favour of the beneficiaries under the wakf deed executed by Syed Madad Ali on the 7th of May, 1893. Suffice it to say that if there be such a charge it cannot be declared or given effect to in these proceedings.

In the result we uphold the decision of the learned Civil judge that the wakf deed of the 7th of May, 1893, is invalid and that the plaintiffs' claim is not barred by limitation.

We now proceed to consider F.A No. 113 of 1937. The learned Civil Judge held that Mst. Chamela who is mentioned in the wakf deed was the lawfully wedded wife of Syed Madad Ali. In these circumstances he concluded the plaintiffs were not entitled to 8/33 and 2/33 sihams respectively but 8/45 and 2/45 sihams respectively inasmuch as defendants Nos. 5 to 8 the descendants of Mst. Chamela were the legitimate heirs of Syed Madad Ali and entitled to their share in his estate. The learned Judge accordingly granted decree to the plaintiffs for joint possession over 10/45 sihams of the property.

Against this decision plaintiff No. 2 Syed Anwar Ali appealed and his appeal was directed against the decree of the learned Civil Judge in so far only as the decree determined his share in the estate. During the hearing of the appeal the appellant filed an application in which it is averred that the appellant and defendants Nos. 5 to 8 have concluded a compromise and in which the appellant further intimated that in these circumstances he did not wish to press his appeal which might be dismissed without any order as to costs. Thereupon Sher Ali, defendant No. 1, Hamid Ali, plaintiff No. 1, and the heirs of Kazim Ali filed applications in which they prayed that in the circumstances they be permitted to prosecute the appeal.

Under the provisions of order XLI, rule 4, “Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree and thereupon the appellate court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.” Under the provisions of order I, rule 10(2), “The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.”

It is apparent from these provisions and authorities to which our attention was directed during the course of the appeal that the court has very wide powers to allow parties to be added to the array of plaintiffs or defendants or appellants or to allow parties to be transposed from the array of defendants to the array of plaintiffs. Whether it is just and equitable to grant an application for such a transposition, however, is a question which must be decided upon the facts and circumstances of each particular case. Now in the present instance as already noted the appeal from which the appellant withdraws was one which challenged the decree of the trial court in so far only as that decree affected the rights of the appellant. The whole decree is not challenged. For some reason or other which is not apparent the plaintiff No. 1 and the other parties who have applied to be permitted to prosecute the appeal are not in the array of the appellants. Furthermore so far as Sher Ali defendant No. 1 is concerned he did not challenge the title of defendants Nos. 5 to 8 to succeed to a share of the property as legitimate heirs of Madad Ali. Sher Ali further did himself file an appeal against the decision of the trial court that the wakf deed executed by Syed Madad Ali on the 7th of May, 1893, was invalid. He deliberately and for reasons best known to himself but which are not known to the Court refrained from challenging the conclusion of the learned Civil Judge that Mst. Chamela was married to Syed Madad Ali and that therefore defendants Nos. 5 to 8 were entitled to share in Syed Madad Ali's estate. Taking all these facts and circumstances into consideration we are far from satisfied that the present is a case in which the Court should exercise its discretion in favour of the applicants who now wish to prosecute the appeal. Their applications we accordingly dismiss.

The result is that Appeal No. 73 of 3937 is dismissed with costs and Appeal No. 113 of 1937 is dismissed, parties to bear their own costs.

Sher Ali v. Hamid Ali

Structured Summary of the Opinion (Thom, C.J. and Ganga Nath, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiffs' Arguments

Defendant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sher Ali v. Hamid Ali

Comments