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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Sulaiman, C.J
  • Harries, J.
Acts
  • Wakf Validating Act (Act XXXII of 1930)
  • Wakf Validating Act (Act VI of 1913)
  • Wakf Act of 1913
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Sulaiman, C.J
  • Harries, J.
Acts
  • Wakf Validating Act (Act XXXII of 1930)
  • Wakf Validating Act (Act VI of 1913)
  • Wakf Act of 1913
See more information ...
Smart Summary

Summary of Opinion (Sulaiman, C.J.)

Factual and Procedural Background

This is a defendant's appeal arising from a suit in which the defendant contended that the disputed property was waqf property and therefore not attachable or saleable in execution of a money decree. The courts below held that the waqf in question was invalid and unenforceable.

The challenged instrument is a deed dated January 8, 1919, executed by Haji Nabi Baksh, described as a waqf-alal-aulad. The deed recited that the settlor was very old, had four children (one son and three daughters) and some house properties, and declared a waqf for the maintenance of those children “in accordance with law, Act VI of 1913.” The deed provided that during his lifetime the settlor would be mutawalli; after his death his son would be mutawalli and the office would continue along the line of the settlor’s sons, excluding strangers from appointment. The deed restricted the mutawalli from selling or mortgaging the property, required repairs from income, and required distribution of surplus proportionately to beneficiaries. The deed contained no express provision for the application of income if the line of descendants became extinct, nor any express dedication to the poor, a religious institution, or other charitable purpose.

Legal Issues Presented

  1. Whether the deed dated 8 January 1919 constituted a valid waqf under the Mussalman Wakf Validating Act (Act VI of 1913) and the legal requirements applicable to waqf-alal-aulad instruments.
  2. Whether the proviso to the 1913 Act — requiring that the ultimate benefit be expressly or impliedly reserved for the poor or for other purposes recognised by Muslim law as religious, pious, or charitable of a permanent character — was complied with by the deed (i.e., whether an implied reservation for charitable purposes could be inferred).
  3. Whether a mere recital or reference to Act VI of 1913 in the deed is sufficient to satisfy the statutory requirement of an express or implied ultimate dedication to charitable purposes.

Arguments of the Parties

Defendant's Arguments

  • The deed was a waqf-alal-aulad made in accordance with law (Act VI of 1913), and the recital referring to that Act was relied upon to argue that the requirements of the Act were fulfilled.

The opinion does not set out a detailed account of any other specific arguments advanced by the parties in the record presented here.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Irfan Alt v. Official Receiver, Agra Held that the mere use of the word “wakf” is not itself sufficient to imply an ultimate benefit to the poor where there is no express reservation. The court noted this decision as supporting the proposition that implication of an ultimate charitable reservation cannot rest on the mere use of the term “waqf” alone; the court also observed that it was unclear whether the Letters Patent Bench considered cy pres-like arguments in that case.
Masuda Khatun Bibi v. Mahammad Ebrahim Where the deed described itself as a “waqf and sadqa in the way of God” and the preamble referred to maintenance of family and purposes of pious works, the terms allowed a necessary implication of ultimate benefit to the poor and charitable purposes. Referred to as an instance where the terms of the waqf, including specific references to pious and charitable purposes, supported an implication that an ultimate charitable destination existed.
Tahiruddin Ahmad v. Masihuddin Ahmad Reaffirmed that an intention of ultimate benefit to the poor cannot be inferred from the mere word “waqf”; where a small portion was given to the poor but no provision made for failure of the descendants’ line, the waqf was held invalid. Used to illustrate prior holdings that mere terminology or partial provision for the poor does not automatically create an implied ultimate dedication of the entire estate; the court noted that cy pres-type relief was not argued in that case.
Baqaullah Khan v. Ghulam Siddique Khan Where the deed used the words “waqf-fi-sabilillah” and contained a reservation of a portion of the usufruct for pious and charitable purposes, a reasonable inference of an implied dedication for charitable and pious purposes was held proper despite absence of express provision for the remainder if descendants failed. Cited as an example where, on consideration of all circumstances, an implied ultimate dedication for charitable purposes was found despite the absence of an explicit fallback clause for the entire income.

Court's Reasoning and Analysis

The court proceeded step-by-step as follows:

  1. Statutory and historical context: The court recited the pre-1913 position that family waqfs were generally invalid unless substantially dedicated to charity, the enactment of the Mussalman Wakf Validating Act (Act VI of 1913) to recognise certain family waqfs, and the later Act XXXII of 1930 which gave retrospective effect to the 1913 Act subject to limited exceptions.
  2. Statutory proviso: The court highlighted the proviso to the 1913 Act that, even when maintenance of family/descendants is recognised as a valid purpose, the ultimate benefit in such cases must be “expressly or impliedly” reserved for the poor or for any other purpose recognised by Muslim law as religious, pious, or charitable of a permanent character.
  3. Examination of the deed for express reservation: The court found no express reservation in the operative portion of the deed providing for an ultimate gift to the poor or to religious/pious/charitable purposes should the descendants’ line fail; the declared object was exclusively the maintenance of the son and daughters and their successors.
  4. Meaning of “impliedly”: The court analysed what an “implied” reservation would mean — namely, that it must be inferable indirectly from recitals and surrounding circumstances, not merely from the use of the word “waqf.” The court stated that an implied reservation can be inferred from preamble or recitals when there is sufficient indication that the settlor had in mind an ultimate charitable object as a real possibility.
  5. Survey of authorities: The court reviewed relevant case law showing two lines of authority — decisions finding that mere use of the word “waqf” is insufficient to imply ultimate dedication to the poor (Irfan Alt; Tahiruddin Ahmad) and decisions where, on the terms of the deed (for example explicit references to waqf-fi-sabilillah or to pious/charitable purposes), an implication of ultimate charitable dedication was held proper (Masuda Khatun Bibi; Baqaullah Khan).
  6. Application to the present deed: Applying these principles, the court concluded that the present deed contained no express indication, nor any sufficient recital or surrounding circumstance, from which an ultimate charitable reservation could be inferred. The deed confined management and succession to the settlor’s descendants and contained no provision as to what would happen on extinction of that line; it did not mention the poor, religious institutions, or charitable uses. Therefore the proviso to the 1913 Act was not satisfied.
  7. On the defendants' contention that the recital “in accordance with law, Act VI of 1913” should be taken to imply compliance with the Act, the court rejected that contention: a bare reference to the Act was insufficient because the Act embraces various purposes and a specific mention of a religious, pious, or charitable purpose would have been significant but is absent here.
  8. Conclusion of analysis: Because no express or properly implied ultimate dedication to charitable purposes could be found, the deed did not meet the statutory requirement and could not be upheld as a valid waqf.

Holding and Implications

Holding: Appeal dismissed. The court held that the challenged deed is not in accordance with the requirements of Act VI of 1913 and therefore should not be upheld as a valid waqf. The court dismissed the appeal and awarded costs.

Implications:

  • The direct effect stated in the opinion is that the deed in question is not a valid waqf under the 1913 Act as construed by the court on the facts before it, and the appeal against the decision holding the waqf invalid fails.
  • The court emphasised that an ultimate reservation for the poor or other recognised religious, pious, or charitable purposes must be shown either expressly or be capable of being properly implied from the instrument and its surrounding circumstances; a mere reference to the 1913 Act is not by itself sufficient.
  • The opinion does not assert that it is establishing any new broad precedent beyond its application of established principles and prior authorities; its holding is framed on the facts of the deed before the court. No additional broader legal consequences are articulated in the text of the opinion beyond the direct decision and the award of costs.

This summary is based exclusively on the information contained in the provided opinion and does not include any information beyond that text.

Show full summary ...

    Mt. Ruqia Begam v. L. Suraj Mal

    Sulaiman, C.J:— This is a defendant's appeal arising out of a suit for a declaration that the property in dispute is not attachable and saleable in execution of a money decree as it is waqf property. The courts below have held that the waqf in question is invalid and unenforceable.

    2. On January 8, 1919 Haji Nabi Baksh executed a deed of waqf-alalaulad. After reciting that he was very old and there was no certainty of this transitory life, he mentioned that he had four children, one son and three daughters, and had some house properties, and declared

    therefore by way of foresight and for the sake of the maintenance of the son and daughters aforesaid I have in accordance with law, Act VI of 1913, made a waqf-alal-aulad in favour of the son and the three daughters in accordance with the legal shares under the Muhammedan Law, of the two houses.

    3. He provided that during his lifetime he would remain the mutawalli of the waqf property, and out of the income of the waqf property he would give proportionate shares to his son and daughters for their maintenance; that after his death his son should remain the mutawalli and his authority and powers would be like his own, and a chain of arrangement relating to the appointment of the mutawalli should continue along the line of the sons of the waqif, generation after generation, and that no stranger should have the right to be appointed a mutawalli. If at any time the mutawalli on account of his bad acts interfered with the income of the waqf property and did not give the proportionate share to any share-holder, the said share-holder could get another mutawalli appointed through the District Judge. He also provided that at no time any mutawalli should have the right to sell or mortgage the property made waqf of, and that it would be his duty to repair the endowed houses out of the income of the fund, and to distribute the surplus in proportionate shares to the beneficiaries. He described the deed as waqf-alal-aulad. In the document there was no express suggestion anywhere that he was making a waqf-fi-sabilillah (in the way of God), or for the benefit of the poor, or for any other religious or charitable purpose. Neither the poor, nor any religious institution, nor any charities were mentioned. The declared object was “by way of foresight and for the sake of the maintenance of the son and daughters.” No doubt it was stated that the “waqf-alal-aulad was made in accordance with law, Act VI of 1913” but there was no indication as to what was to happen to the income if the line of the descendants became extinct. He provided that “no stranger shall have the right to be appointed mutawalli.” The waqif, therefore, took it for granted that for all time to come there would be his descendants in the line of his son, generation after generation, and so expressly confined the mutawallishio to his descendants. He also gave a right to a future share-holder in the profits, to apply to the District Judge for the appointment of another mutawalli if there was any failure to give the proportionate share to him. All these circumstances lead to only one conclusion that the waqif never contemplated that the line of his descendants would become extinct, and disliked the idea of any stranger becoming a mutawalli.

    4. It is well known that prior to 1913, Muslim waqfs for the maintenance of the family or descendants were held by their Lordships of the Privy Council to be invalid, unless there was a substantial dedication to charity. The Mussalman Wakf Validating Act (Act VI of 1913) was passed professedly for validating waqfs in favour of families, children and descendants. It was held by their Lordships of the Privy Council that the Act was not retrospective, but was only prospective. Accordingly previous waqfs of such kind would still be invalid. Subsequently the Mussalman Wakf Validating Act (Act XXXII of 1930) was passed, and the Wakf Act of 1913 was given a retrospective effect provided it did not affect rights which had accrued before 1930.

    5. But even though Act VI of 1913 recognises as valid purposes the maintenance and support of one's family, children or descendants, and also in the case of Hanafi Mussalmans, his own maintenance and support during his lifetime and the payment of his debts out of the rents and profits, there is a proviso that

    the ultimate benefit is in such cases expressly or impliedly reserved for the poor, or for any other purpose recognised by the Mussalman Law as a religious, pious, or charitable purpose of a permanent character.

    6. It is quite clear that there is no such express provision in the deed of waqf before us. The only question is whether it can be said that a reservation of the benefit for the poor, or other religious or pious purpose of a permanent nature is implied. No doubt the waqif intended to create a permanent waqf which was to remain in operation in perpetuity, from generation to generation; but it would come within the definition of “Wakf” as contained in Section 2(1) only if Section 3 is complied with, and the requirement of the proviso to that section is fulfilled.

    7. The word “impliedly” has not been defined anywhere; but it seems to us that it must mean that the reservation can be indirectly inferred from the recitals in the deed coupled with surrounding circumstances. Of course, where there is such a reservation in the operative portion of the document by which the dedication is effected, there would obviously be an express reservation to that effect. But even if there be no such reservation in the operative portion of the document, there may be some indication in the introductory portion, or in the recital of facts, or in the recital of the object and purpose, from which it might be implied that the waqif had a possible ultimate benefit to the poor, or any religious, pious, or charitable purpose, in his mind. But where the document contains no such indication and it is impossible to say that the waqif had any such purpose in view even as a remote possibility, and indeed where the waqif does not seem to have contemplated the extinction of the line of his descendants at all, it is difficult to say that any reservation of such benefit is implied.

    8. On the one hand there is the case of Irfan Alt v. Official Receiver Agra(1), , in which there was difference of opinion between the Judges who first heard the case, and the matter was ultimately decided by a Letters Patent Bench. It was held that where there was no express reservation of ultimate benefit for the poor, or for religious, pious, or charitable purpose then the mere use of the word “wakf” was in itself not sufficient to imply that there would be an ultimate benefit to the poor. It does not seem to have been pressed before the Bench that inasmuch as there was an express provision that the balance left out of the one-third income of the property would be employed “on good acts recognised as such by the Muhammedan Law (as for instance fatiha, offerings for elders, education and marriage of children etc.)” then on the analogy of cy pres doctrine, the remaining two-thirds of the income would be for similar purposes and charities, in case the line of the descendants became extinct. It is, therefore, not clear whether this aspect of the question was urged before the Bench and at all considered.

    9. In the case of Masuda Khatun Bibi v. Mahammad Ebrahim(2), the waqf deed had described itself as “making a waqf and sadqa in the way of God”, and there was in the preamble a reference “for the maintenance of my family and children and for purposes of pious works of charity, and for the benefit of the public and the poor.” The Bench held

    that although the mere use of the word waqf cannot by itself be regarded as connoting an implied reservation of the ultimate benefit to the poor, there was enough in the terms of the waqf to hold that it did, by necessary implication, provide for an ultimate benefit for the poor and for the purposes recognised by the Musalman Law as religious, pious, or charitable.

    10. In the case of Tahiruddin Ahmad v. Masihuddin Ahmad(3), following the earlier cases it was held that an intention of ultimate benefit to the poor cannot be inferred from the mere word “waqf”; and that the ultimate gift to religious purposes must be implied from the terms of the document and is not to be implied from the mere fact that the settler was purporting to make a waqf. There was, however, a provision that the waqif would pay 1/16th portion of the income to Muhammadan poor, keep 1/16th to himself, and that the remaining 14/16th were to go to his heirs and descendants. There was no express provision that the gift of 14/16th of the income to the heirs and descendants was a gift which was subject, upon its failure, to be replaced by an ultimate gift to the poor, or for that matter, to any other charitable purpose. The Bench held that the waqf was invalid. There again the applicability of the doctrine of cy pres, well recognised in Muslim jurisprudence, does not appear to have been pressed before the Bench.

    11. On the other hand, in the case of Baqaullah Khan v. Ghulam Siddique Khan(4) another Bench of this Court had to consider a deed of waqf which also had not made any express reservation of the ultimate benefit to the poor in respect of 1/16th of the income. The deed used the words “waqf-fi-sabilillah”, i.e, dedication in the way of God, and the waqf had been created in perpetuity and contained the provision for appointment of mutawallis for all time to come. A portion of the usufruct of the waqf property had been reserved for pious and charitable purposes; but the waqif made no provision for the application of the rest of the income, i.e, 15/16th, for such purposes in case the line of descendants became extinct. On a consideration of all the circumstances, the Bench came to the conclusion that there was an implied dedication for charitable and pious purposes.

    12. It seems to us that if we were to insist on a clear reservation in the deed directing that the benefit of the entire income should ultimately go to the poor, then we would be insisting on an express provision in the deed, and we would be entirely ignoring that the Act contemplates even an “implied” reservation. A reservation of the ultimate benefit can be implied only when it is not express; and although it must necessarily be implied from the terms of the document read in the light of the surrounding circumstances, it must be a matter of mere indirect inference and not direct conclusion. Where the waqif has indicated his intention that his object is to benefit his family, and also religious, pious, or charitable purposes, it can be implied that there is an ultimate reservation for such purposes, particularly so when he has provided, that a part of the income should be applied to such purposes during his own lifetime. If one object, namely, the maintenance of his descendants, fails, there is no reason why the other object should also fail, and no reason whatsoever why the whole income should not be devoted to the remaining object as indicated. But in the present case, as already pointed out above, there is no indication whatsoever what object other than the maintenance of his son and daughters the waqif had in mind. It is not possible to say whether he had the poor, or any religious institution, or any charitable purpose at all in mind. We must, therefore, hold that the deed in question in the present case is not in accordance with the requirements of Act VI of 1913. No doubt there is a recital that the waqf-alal-aulad was being made in accordance with law, Act VI of 1913, which, it is argued on behalf of the defendants, implies that the requirements of that Act were fulfilled. After giving the matter our best consideration we have come to the conclusion that the mere reference to the Act should not be considered sufficient, as that Act refers to various purposes. Had there been any mention of a religious, pious, or charitable purpose, then a reference to Act VI of 1913 would have been very important and significant. On the whole, we think that this deed should not be upheld as a valid waqf. We accordingly dismiss this appeal with costs.

    13. Appeal dismissed

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    Comments

    Mt. Ruqia Begam v. L. Suraj Mal
    (Jan 30, 1936)