Thakur Mohd. Ismail v. Thakur Sabir Ali

0. K. Daphtar?J, Solicitor General of India, ]i]. U<l,ayarathnam and R. S. Sh1tlola, for respondent No. I. 1962. March 26. The .Judgment of Gajendragadkar ancl Wanchoo, .TJ., was delivered by Wanchoo, .T. Rarkar, J., delivered a separate Judgment. WANOIIOO, ,J.-This is a defendant's appeal on a n~rtifioatA want.ed by the Allahabad High Court. . _, I . I S.C.R. SUPREME OOURT REPORTS 23 The suit was brought by Thakur Sabir Ali plaintitf­ responcfout for possession. ~l'he following pedigree table (omitting the unnecessary irnmes) whid1 is not in dispute, may be set out to a.ppre~iate the caRe of the plaintiff:- ----~- I Nabi Baksh (<lied in 1890) I First wife I I Amir Baksh (<liecl in l8fi7) I I Asghar Ali ( dif'd in I 037) I f?n.tch Mohd. (diNl ill 18HO) . -- Second wife l ---·--- 1 I I I I I I Fatima Nasirali Aeysha Mohd. Mohd. Mohd. Bihi Bibi I · Bibi lTmar D-3 Sabirali D-2 D-1 Ali Ismn.il Zainah D-5 H-H I>-7 (now n.ppollant) The case of the plaintiff was that Thakur Amir Baksh owned considerable property known as 'fiprahn. Estate in the district of Bahraich at the time of the annexation of Oudh. He died in 18!)i and was succee­ ded by his son Thakur Fateh Mohd., who WM subse­ quently recognised by the Government a1-1 the talukdar of tho Tipraha Estate. Thakur 1',akh l\fohd. died issueless and on his death 1 1 hakur Nabi Baksh eucceede~ him as the t.11.lukda.r under t.hc family om1tom ~nd under tho provisions of the Outlh Estates Act, No. l of 1860, (hc~roinafter ea.lle<l th•~ Act). On the death of Thakur Nabi Baksh thP estate passed to his only son Asghar Ali, who in bis Jifo time acquired certain other propcrt.ies which 196! Thakur Mn'hd. /smnil v. Thakur Sabir .hli W aru:hon .1. 1161 Tlrakur AtoM. /amttil v. 1·haku1 Sabir Ali fVanchoo J. were hoth talukdari and non-talukdari in nature. In Angnst, I 925, Thakur Asghnr Ali executed a deed of wakf.alal-aula<l by moans of which h{1 created a wakf of his entire property for tho benefit ofhimso!f, his family and descendants generaticm after genera· tion_ He was to be the first mutwalli for his life­ time and thereafter his son Thakur Mohd. Umar, and after him, his other sons and then his other descendants selected according to the rulo of primogeniture were to be mutwallis. The wakf deed provided that some amounts would be paid to chari· ties and some as maintenance allowance to the members of his family generation after generation, the remainder going to the mutwalli. Asghar Ali died in February, 1937, leaving behind properties in· eluded in Schedules A to I appended to the plaint. Disputes arose thereafter about succession to and possession of his properties. Mohd. Umar claimed to be entitled to the entire property under the wakf deed of August, 1925, while the plaintiff, being the eldest son of the eldest aon Nasirali who had died in the lifetime of his father Thakur Asghar Ali claimed succession to the property under the rule of lineal primogeniture. This le<! to protracted litigation in tho Hownue Courts 1t11d nvn1tuallv an order for mutation was passer] in favour ,;r Thakur Mohcl. lTm1tr defendant who is uow dear!. TJrnkur Mohd. Umar came into possession of tho properties men­ tioned in schedules A, B, D, E, Jf, H (except certain items mentioned therein) while the other defendants came into possession of ncrtain other properties, with tho details of which we 1tre not eonoerned now. Thakur Sabfr Ali then instituted the present suit for the possession of the entire property left by Thakur Asgharali and for mesue profits. His eaRe w11a thaL he was nntitled to succession under the rule of male lineal primogeniture in aneor<lance with the provfaions of the Act and the family eustom. ffe denied the execution, attestation, genuineneu, I l S.C.R. SUPREME COURT REPORTS 25 and validity of the wakf deed alleged to have been exocutod by Thakur Asgha.rn.li, whieh was relio<l upon hy Thakur Mohd. Uma1· for hiR tit.JH t.n tlw property. The \vakf dm•<l was further challcngt'd on other grounds with which we aro however nut concerned now except one. But the main attack against the validity of the wakf deed was that the subject matter of tho deed was property s~bject tu the special provisions of the Act and therefore tho said deed wa.s not valid, particularly in view of the provisions contained in ss. 11 and 12 of the Act. This is the main point which falls to he consider<~rl in the present appeal. The defence ~as that the wakf deod wns duly executed and registered and acted upon and that no fraud, undue influence or coercion as alleged by the plaintiff had been practised upon Thakur Asgharnli in that connection. It was further alleged that cv<>n if the wakf was invalid as a gift it would be opern.· tive as a will and the mutwa.lli would be entitled to the poss~ssion of the whole of the estate of Thakm· Asgharali under the wakf dt~od. The defendants a]so resisfod the at.tacik on tho wn.kf cltwd ha.sed nu tJw provfoiom1 of the Act. The trial eom·t fouud th:i.t. the wakf cfo~d waR duly executed and was a genuine and valid docu­ ment. The trial com·t also found that the pla.intiff was ontitlod under the family custom and also under the provisions of the Act to inherit by the rule of male lineal primogeniture such properties as wo1·0 left by Thakur Asgharali at the time of his dea,th; but as the trla.l comt hold that the wakf deed was valid, it dismissed the suit of the plaintiff ox<mpt with respect to two properties in Schedule A to Uw plaint. Tho ~uit was decreed with respect to thcsf.'I two properties on Lhe ground tlutt th1~y wero not inclucfod in tho wakf deo<l. There was t,hon an appeal hy Sa.hirnli to tho lligh Court. It upha)fl the finding of tho tl'ia.l cotH't J9rn Th·1!.ur Jf o1•d. /.~mail "· T!1alt11r Sa/iir ,11 Wanthoo J. 1962 Thakur Mohd. Ismail v. Thalur Sabir Ali Wanchno J. that the wakf deed was a genuine document. It also held that it was a valid wakf as a wakf-alal-aulad under the Mussalman Wakf Validating Act (No. 6 of 1913); but it held that the wakf deed was invalid be­ cause it contravened the provision of s. 12 of the Act. The High Court however further held•that even though the wakf deed failed as a deed creating a wakf, the directions contained in it for the payment of maintainance allowance and right of residence in favour of persons who were alive at the date of the death of Asgharali and for the expenses to be incurred in respect of charities would be binding on the plaintiff as being the last will and testament of Asgharali. It therefore allowed the appeal and decreed the plaintiff's suit for possession over the properties which were included in the deed of wakf as also over the other properties which belonged to Asgharali at the time of his death subject to allowances and charities to persons living at the time of the death of Asgharali and declared that the allowances and amounts to be spent on charities were to be a charge on the properties mentioned in the deed of wakf. The High Court decree also contained various consequential directions with which we are however not concerned in tho present appeal. The plaintiff having not appc'1led from that part of the decree by which the allowances and · the amounts to be spent on charities have to be paid out of the properties included in the deed of wakf and by which a charge was created on the properties therefor, that part of the decree of the High Court has become final. · The main question therefore that falls to be considered in this appeal is whether the High Court's view that the wakf is invalid in view of s. 12 of the Act is correct. It.is necessary therefore to refer briefly to the history of the t.alukdari estates with which the Act is concerned. Suffice it to say that after the Mutiny of 1857 was over, Lord Canning, t4e > - ... ( ~ I ~ , } 1 S.C.R. SUPREME OOURT REPORTS 27 then Governor-General of India issued a proclama­ tion on the 15th of March, 18.58, by which aJI pro­ prietary rights in the soil belonging to persons . in Oudh {with the exception of the rights of a few talukdars) were confiscated. At the same time indulgence was promised to those who surrendered promptly. In view of that promise most of the talukdars did surrender with the result that thev received back their estates; only tho51e who did not. surrender lost their estates and these estates were given to other talukdars who had proved loyal to the British Government as a reward for their loyalty. This re-grant was done by making settlements with talukdars and issuing sa.nads to them. 'fhus all the pre-existing rights of the talukdars were first taken away and then fresh grants under the terms of sanads and proclamations issued at the time were made to them. This was follwed hy the Oudh Estates Act of 1869, which further defined the rights of talukdars to the estates granted to them by the British Govemment. It will appear from the pro­ visions of the Act that the rights of talukdars and grantees to whom estates were granted by the British Government wore defined in the Aot without distineti.on of religion or ''aste, so that the A<~t governed all tnlnkdarR irrespective of tlw rc~ligion to which they might belong. ]~urther the right of succession is a.lso provided in the Act and the personal law of a talukdar with respect to the talukdari property stands abrogated exeept and in so far the Act imports it. Further it is clear that in respect of matters dealt with by the Act,· it is n. se]f.containc<l and complete Code with respect to ta.lukda.ri prbperty covered by it. This was tho view taken by tho Privy Council in Chandra J( islwrr. Tmm.ri v. 8i.<.:8end·i JiJsuite (1), where it was observed that. "til1e Ondh J~sta.tes Act is a special Act a.ffocting speda,} e}aSH of ])Ofi.lOllS in rcspAct Of tho propnrtit~R ern1forred upon th~m. Tho Act is Helf-eonta;ine<l (I) A· J. R (1'14:.1) I'. C. 207. 1962 Thakur Mohd. Ismail y. Thakur Sahir Ali Wanchoo !, Thakur Mohd. Ismail •• Thak"r Sabir Ali JVandioo J. 28 SUPREME COURT REPORTS (1963J and complete in regard to the matters contained in it". It is in this background that we have to consider the provisions of the Act . Let us therefore examine the scheme of the Act. The long title of the Act says that it is "an Act to defiue the rights of talukdars and others in certain estates in Oudh, and to regulate the success­ .ion thereto." The preamble then says, "Whereas, after tho re-occupation of Oudh . by tho British Government in the year 1858, the proprietary right in diverse estate in that province was, under certain conditions, conferred by the British Government upon certain talukdars and others; and whereas doubts may arise as to the nature of the rights of the said talukdars and others in such estates, and as to the course of succession thereto; and where a.s it is e xpedient to prevent such doubts, and to regulate such course, and to provide for such other matters connected therewith as are hereinafter mentioned." It is clear therefore that the Act was made to define the rights ·of holders of talukdari estates and to regulate the succession thereto and the provisions in the Act being a complete Code relating to the speoia 1 class of the persons in respect of the properties conferred upon them by the British Government, whatever right the talukdars h:td in the property conferred on them would have to be found in the Act and would be circumscribed by its provisions. Sections 2 of the Act is the definition section and we are primarily concerned with thn definition of the word "transfer" therein which is as follows:- "Transfer' with its grammatical variations and cognate expressions, means to make· a.n alienation inter vi1Jo8 whether before or after the commencement of this Act." ' Section 3 defines the rights of a talukdar and lays down that a talukdar has a permanent, heritable · I... (l,nd transferable right in the estate eom~rising tho - \ ' , -\ - I S.C.-R. SUPREME COURT REPORTS 29 villages and lands named in the list attached to the agreement or kalndiyat executed by such talukdars when such settlement was made with him. Section 8 provides for preparation of lists of talukdars and others granteos and it is not in dispute that th~ Tipraha esta~is:inentioned in lists 1and11 prepared under s. 8 of the Act. Then we come to s. 11 which deals with the powers of talukdar to transfer and bequeath properties held by them under the Act, the relevant portion of which is as below:- "Subject to the provisions of this Act, and to all tho conditions other than those relating to sucocssiou unde1· which the estate was _uonforrc<l by tho :BritiHh Governmcmt, ovory talukdar and grantee, and every hoir and legatee of a talukdar and grantoo, of sound mind and not a minor, shall be competent to transfer the whol@ or any portion of his estate, or of his right and interest therein, during his life-time, by sale, exchange, mort­ gage, lease or gift and to bequeath by his wiJI to any person the whole or any portion of such estate, right and interest ............ ". It will be clear from a bare pernsal of this provision that the estate conferred on a ta.lukdar was an absolute estate for he had the right to transfer it in any manner he liked and to any person he liked and even to seJl it away completeily ignoring the heirs UQder the personal law. Then comes s. 12 which reads thus ·- ''No transfer or bequest under this Act shall be valid whereby the vesting of the thing transferred or bequeathed may be delayed beyond the life-time of one or, more persorn~, living at the decease of the transferee or testator and the minority of some ·person wf10 shall be in existence at the expiration of that pefiod., and to whom, if he attains full age, t_he thing transferred or bequeathed is to belong.'' l:Jli2 Thakur M o/itl. lsmail v. '1 'hakur Sabir ,1/i Wanchoo J. J962 lldurMohd. Ismail •. Thakur Sa/Jir Ali l·V anchoo J 30 SUPREME COURT REPORTS (1963] This section provides the rule against perpetuity so that even though the talukdar under the Act had an absolute estate and could transfer it as he pleased or will it away as he pleased he could not in view of s. 12 make a transfer or bequest which might infringe the rule against perpetuity. Section 13 deals with proc:edure relating to transfers by gifts and pro­ vides that transfer by gift will be made by an instru. ment signed by the donor and attested by two or more witnesses not less than three months before his death and presented for registration within· one month from the date of its execution and registered; and it further provides that no gift made shall be valid unless followed within six months from the date or execution of the instrument of gift;, by dolivory by the donor 01· his representative in interest, of possession of the property comprised therein. 'l'he following sections deal with bequests and with procedure of transfer other than gifts with which we a.re not concerned. Then we come to s. 18, which deals with gifts for religious and charitable uses and is in these terms:- "N o taluqdar or grantee, and no heir or legatee of a taluqdar or grantee, and no trans­ feree mentioned in section 14, and no heir or legatee of such transferee, shall have power to give his estate, or any portion thereof, or any interest therein, to religious or charitable uses, except by an instrument or gift signed by the dunor and attested by two or more witnesses not less than three months before his death and presented for registration within one month from the date of its execution and registered." It will be seen that there is one difference between s. 13 which deals with gifts for purpose other than religious and charitable and s. 18 which deals with gifts for religious and charitable uses inasmuch as delivery of possession is not made necessary for the ' . __ L I ; I 1 S.C.R. SUPREME COURT REPORTS 31 validity of the gift under s. 18 as is the case in s. 13 (2). The rest of the Act deals. with intestate succession and other matters with which however we are not concerned. The main contentic n ou behalf of the -appel­ lant is tha.t a wakf-ala.1-aulad is outside the pro­ visions of the Act altogether and must be deemed tu be a valid instrument in view of Act VI of 1913. In the alternative it· is claimed that even if a wakf­ alal-aulad comes within the perview of the Act it will be governed by s. 18, and if it complies with the provisions of that section it will not be hit by s. 12, the argument being that s. 18 is independent of e. 12. We can see no validity in the first conten­ tion on behalf of the appellant, namely, that a wakf-alal-aulad is entiroly outside the purview of the Act and the provisions of the Act will not apply to it and it will be valid in view of Act VI of 1913. It is not disputed that the property with which the wakf-ala.1-.aulad in this case deals is property which would be governed hy·the Act. We have already said that the Act is a special Act affecting special class of persons in respect of the properties confer­ red upon them by the British Government and is a self-contained' and complete code in regard to the matters contained in it. Therefore, so far as the property which comes under the Act is concerned, we must find power in tho Act conferred on the talukdar to deal with the property, and it cannot be accepted that the talukdar oan deal with the property which is governed by the Act in any manner not provided by the Act. If the creation of a wakf-alal-aulad is out side the purview of the Act it wiU be clear that any wakf·alal-aulad dealing with property which is governed by the Act would immediately be invalid so far as that property is concerned, for the property conferred on the talukdar which is governed by the Aot ca.n onJy be dealt with as provided in the Act and not otherwise, the Act being a complete Code with reapeot to the rights of the talukdar to deal with suoh propertJ. On the argument therefore 1962 Thakur Mobil. Ismail v. Thakur Sabir .iii Wane/loo J. 196.~ 1 hakur ;,l1 ohd. 1,)1/ltJil y, 17uikur Sal111 ·!Ii IV andum .7. !12 SUPREME COUH.'.i. REPORTS (1963) that a wakf-alal-aulad is a manner of dealing with the property which is entirely outside the Act, the wakf must fail at once so far as it deals with pro­ perty governed by the Act. But we are of opinion that the contention that a wakf-alal-aulad is some thing which is entirely outside the purview of the Act, even though it may deal with property governed by the Act cannot be accepted. A wakf-alal-aulad must by its very nature bo some kind of transfer of property by the person making the wakf. Previous to Act VI of 1913, the Privy Council had held in Abut Fam Mahomed Ishak v. /lw;8omoy Dhur Ghowdry (1) that "under Mahomedan law a perpetual family settlement expr<'ssly mado as wakf is not legal merely because there is an ultimate but illusory gift to the poor". It was because of this judgment by which wakf-alal-aulad aB known to Mahomedan la.w were declared illegal that Act VI of 1913 was passed by which such wkfs became legal. Obviously, therefore, when such wakfs become legal there was a transfer of the property covered by the wak;f and the transfer was in favour in of God Almighty in whom thereafter the property subject to wakf become vested. This following from the theory of Mahomerlan law under which wakfa created for purposes which are considered by that law to be religious and charitable result in the tran&fer of ownership of wakf property in perpetuity to God Almighty. Further the transfer being without consideration can only amount to a gift. Therefore, wakfs-alal-aulad which have become valid after Act VI of 1913 must be held to be gifts of property to God Almighty for certain purposes and a.re cleary transfers within the meaning of that term in s. 2 of the Act. Incidentally we may add that the use of the words "inter vivos" in the dofinition of the word "transfer" merely emphasises that the trall8fer must be one effective during the life-time of the tranaferor as contrasted with a (I) (I~) J:., R, 221, J .. 76, .. 1 S.C.R. SUPREME COURT REPORTS 33 transfer by will which takes effect on the death of the transferor. Whenever therefore a transfer takes place by a wakf-alal-aulad and the property included in the deed is governed by the provisions of the Act we have to go to the provisions contained in the Act with respect to the power of the talukdar to make such transfer. The transfer would only be valid if it is within the powers1 conferred on the talukdar. This brings us to the alternative argument raiSed on behalf of the appellant. Obviously. a wa.kf-alal-aulad being a gift in favour of God Almighty the property covered by it in tho pI'csent ca.so being ono governed hy tho Act, we have first to go to s. I 1 to see if a gift is permitted under that soction. We have already set outs. 11 and that permits a gift to be made by the talukdar of all the property or any portion of it or any interest therein. This takes us immediately to es. 13 and 18. Section 13 deals with 1 gifts other than those for religious and charitable purposes and we are therefore not concerned with it. Section 18 deals with gifts for religious and charitable uses. 'fhe contention of the appellant in this behalf is that e. J 8 is an indepen­ dent section and gifts for religious and charitable purpose can be ma.de under it a.nd we have only to look to that section to determine the validity of a gift for religious or charitable purposes made by a talukdar of property governed by the Act. We are however of opinion that s. 18 only provides for the procedure for making gifts to charitable and religious purposes whiles. 13 provides for the procedure for making gifts to other. persons for other purposes. The power of the taltikd&r to make a gift is to be found in s. 11, the manner in which he can make a. gift iij to bo found in s. 13 for one class of gifts and ins. 18 for another class of gifts. Therefore wo can­ not accept the argument that s. 18 is an independent section fully providing of gifts of a charitable and religious nature; it is merely a. prooedur~l provision 1962 7 hakur Mohd. Ismail v. Thakur Saiir Al 1 Wr.nchooJ. 1'hal-ur _1f(·Jid. [.m .,fl ,-. Tllalr.ur b'abir Ali Warw:h ,,i J. 34 SUPREME COtJltT REPORTS [1963] for gifts of the type covered by it. But even if the argument of the learned counsel for the appellant were correct thn,t s. I 8 is an independent provision relating to gifts for charitable or religious purpo8e, the gifts made under s. 18 would still be subject to s. 12, as s. 12 open7 with the words "no transfer of bequest under this Act shall be valid". Therefore, even if s. 18 were an independent Rection it still deals with a transfer of a particular type under the Act and that transfer would also be subject to s. 12. We may in this connection refer to s. 18 of the Transfer of Property Act (No. 4 of 1882) which speeifi0ally provides that the rule against perpetuity (s. 14 of the Trnnsfor of Property Act) shall not apply to transfer "for the benefit of the public in the a<lvancemout of religion, knowledge, commeroe, health, sefety or any other object beneficial to man­ kind. Section 18 of the Act however provides no such exception so far as religious or charitable gifts made under the Act aro concerned and such gifts are also subject to s. 12. Two questions then arise when we have to consider the application of s. 12 to this wakf. The first is whether the purpose of this wakf is & religiotlS or charitable purpose within the meaning of s. 18 - of the Act. Now what the wakf deed provides is ._ that an insignificant portion of the income would be used for certain religious purposes; the rest of the income is to be used for the benefit of the wakif and his descendants from generation to generation and it is only when the line of tho wakif is eompletely extinct that the whole of the income of tho property could be utilised for. what may be called charitable or religious purposes. It is urged how· ever that even though the lion's share of the income of tho property would be used for the descendants of the wakif, the wakf will still be a religious and oharitable one, for tho property immediately vests in God Almight.y and is to be used for the benefit of His creatures, which of course include the wakif and j I S.C.R. SUPREME COURT REPORTS 35 his descendants. Reliance in this connection is placed on the dissenting judgment in Bikani Mia v. Slw,klal Poddar (1) in which Aµieerali J. expressed the view that a wakf in favour of the wakif and his de~cen­ dants would be for charitable purpose under the Mahomedan law. It is enongh to say that this was not the view of the majority of that Court. Further in Abul l 1 ata, Mahomeil, lshak's case (2) the Privy Council clearly held t.hat a wakf under which the beneficiaries were the descendants of the wakif could not he treated as one for a charitabfo purpose even under tho Mahomedan law. Apart from this aspoot of the matter, we are not hero concerned with the Mahomedan law and what constitutes a; charit· able use undf'r that Jaw. We are concerned with a statute passed in 1869 by the British when they were rulers of this country and we have to interpret the English words used in that statute as understood by those who framed the statute. The words with which we are concerned are "religious or charitable uses" which appear ·ins. 18 of the Act, and it would in our opinion require no persuasion to hold that the authority which was framing the Act could not have possibly intended that provision by wakf for one's children was provision for religious or charita­ ble uses. The view ta.ken by the Privy Council in AlYul Fata Mahomed lshak's cash (2) clearly shows that the authority responsible for the Act could never contemplate ·wa.kfs in which the beneficiaries were the descendants of the wakif as wakfs for religious or charitable purpose. Further, the Act applies, as we have already mentioned, not only to Mahomedan talukda.rs but talukiiers of all religions and it could . hardly be intended when the words HreJigiOUS Or charitable U8e8" Were USed in 8, i8 that a wakf in which the bent1ficiaries were in tho main the descendants of the wakif would be inclu­ ded ins. 18. Such wakfs could never be considered to be for charitable or religious purposes under (1) (1893)1. L. R. 20Cal. 116. (2) (189f) L.R. 22. I.A. 76, j962 1 hakur Mohd. Ismail v. Thakur Su/.ir Ali Wanchoo J, 1962 Thakur MuhJ. Ismail v. 'Thokttr Sabi,. Ali Wanchoo J. 36 SUPREME OOURT REPORTS [1963] Hindu law or the Christian law. In these circums­ tances it must be held that the wakf in the present c:tse, though in theory it vests the property in God Almighty, is not for clrnritalile or religious purposes. It must thnefore be treateri as a gift to God Almi­ ghty in which however for generations to come God Almighty would have no beneficial ownership. Nor do we think that the Wakf Valida.ting Act of 1913 makes any difference to this position. That Act specifically provides b_v s. 3 that a Muslim can lawfully create a w:tkf-ala.1-aulad. This however does not mean that the purpose of such a wakf is a religious or cha,rit:tblc purpose. This is made clear by the proviso to H. :l, which provides that tho ultimate heudit, in such a Cl\Re must be fur a rnli­ gious or chariLa\.lc purpose" The proviso would ha.vo beon unnecer;sa,ry if the purpose of a wakf­ ala.1-a.ula.d was recngnise<l as religious or charitable by this law. The same in our opinion will follow from the provision ins. 4. In such a case s. 12 must invalidate this wakf. As we have already said, s. 12 provides the rule against perpetuit.y-; but it is said that the rule against perpetuity pi:ovidecl in this section is not infringed by this wa.kf bcoause the property is ves­ ted in God immediately when the wa.kf-a.lal-aulad is created and all that s. I;! requires is that the vesting of the property transferred should not he delayed beyond a certain period. It is urged that in this case the vesting takes place immediately on the making of the wa.kf and therefore the gift is not oovered bys. l:l. This immediately raises the ques­ tion as to what is meant by vesting under s. 12. It may be conceded that property included in a wakf­ a.lal-aulad vests in God Almighty, but the vesting thats. 12 says may not be delayed beyond a certain period is in our opinion absolute vesting (i.e., ves­ ting of both legal and beneficial estate) which may not be delayed beyond a certain period. Such absolute vesting involves that the person in whom \ - I ) "' - 1 S.C.R. SUPREME COURT REPORTS 37 the property is vested can deal with it as he likes and can deal with its usufruct also as he likes. If the person in whom the property may be legalJy vest,ed cannot deal with the usufruct as he . Jikes, thore is not th.at absolute vesting of the property in him which the rule against perpetuity enshrined in s. 12 requires. If this were not so, it will be quite easy to get round the rule against perpetuity by creating a trust in which the property immediately vests in the trustee and then providing for benefi­ cial enjoyment in perpetuity by other persons in whom the property never vests. It is well settl.~d that a trust of .this kind imruediately vesting the property in the. trustee leaving the usufruct tied up for ever for the benefit of other persons' infringes . the rule against perpetuity. We may in this con­ nection refer to a passage from Underhill's "Law of Trusts and Trustees'', tenth editi.on, dealing with t~ Rule against Perpretuities at p. ·10, which is in these terms :- "It is against· public policy that property should be settled on private trusts for an indefinite period, so as to prevent· it being freely deitlt with .; and, consequently, the power of so doing has been cur.tailed by a rule known as the rule against perpetuities. That rule is, that every future limit.ation (whether by way of executory <levise or trust) of real or persona.I property, the vesting of which absolutely as to personalty, or in fee or tail as to realty, is postponed beyo~d lives in being and twenty-one years afterwards (with a fur­ ther :p,eriod of gestation where it exists) is void.' Even thou~h therefore the property may vest in God immediately on the creation of the wakf-alal· aulad in this case, as tho beneficial enjoyment thereof is not for the purposes of God i.e. religious or charitable purposes, the vesting which is envisag­ ~d hr s. 12 is undoubtedly postponed in this oase 1969 Thakur Mohd. Ismail v. ·1 ha'ktir Sabir Ali Wanchon .1. 1962 Tha.J:ur.Mohtl. bmiJil •• Thalur St1bir Ali ff unclaoo J. darA:or J. 38 SUPREME COURT REPORTS rJ963] beyond the period allowed by that ~eetion. There­ forn, the wa.kf in tais case even though it may be trcat.ed as a gift to God !(•gaily veRting property in Him immediately on it.s execution is hit bys. 12, for the absolute vesting which that section contemp­ lates is postponed beyond the period mentioned in that section. The view therefore taken by the High Court that the wakf in this case is hit by s, 12 of the Act is correct. Finally, it was urged that at any rate, so long as the appellant Mohd. Ismail is alive the plaintiff­ respondent could not claim possession and therefore the decree of the High Court to that extent was wrong. We have not been able to appreciate this contention at all. Once the wakf fails as a whole, as we hold that it does, Mohd. Ismail cannot claim to remain in possession, for his right to remain in possession depends upon his being mutawalli of the wakf. The High .Court was therefore right in dec­ reeing the suit brought by the plaintiff-respondent. The appeal therefore fails and is hereby dismissed with costs. SARKAR, J.- -Thakur Mohammad Asghar Ali, a Hana.fl Mussa.Iman, was the owner of the Tipraha Estate, a taluqdari estate governed by the Oudh Estates Act, 1869. It appears that he also owned certain other immovable properties and movables of some value. With regard to these latter, how­ ever, no question has been raised in this appeal and it is not ne<Jelilsary to deal with them especially. On August 26, 1925, Asghar Ali executed a deed of Wakf-alal-aulad in respect of all his proper­ ties the value of which was estimated in the deed at Rs. 10,00,000. By this deed he provided for an expenditure of a total annual sum of Rs. 1,000 for the purposes of a mosque, the destitute, helpless students and also provided for some guzara (main­ tenance) to his mother, wife and cblldren, and after ( j I > I S.C.R. SUPREME COURT REPORTS 39 them, to their respective heire till the line of a gu­ zaradar beoame extinct. He constituted himself the first mutawalli under the Wakf with fuIJ right to spend the amount saved after the payment of the aforesaid sums. He also provided that after his death his second son Mohammad Umar would be the mutawalli for his life and after him his other eons, one after the other, and that after the death of his last son, the succession to the mutawalliship would devolve by the rule of primogeniture accor­ ding to the custom obtaining in his family. In the end he provided that if no one remained to succeed to the office of mutawal1i, Government would make proper arrangements for applying the usufruct of the wa.kf property for purposes of the mosque, religious sacrifice of goats, distribution of the guza.­ ras and grant or-scholarships to poor Mohammedan­ students. He-died on February 27, 1937. After Asghar Ali's death disputes sprang up between his descendants. The respondents, Sabfr Ali, the eldest' son of Nasir AJi the p:r,:edeceased eldest eon of Asgar Ali, claimed that the wa.kf was neither genuine nor valid and that therefore, under the rule of primogeniture as provided in the OU.db Estates Act which governed the Tipraha Estate he a.lone was entitled to all the properties left by Asghar Ali. This claim was disputed, among others, by Mohammad Umar who contended that he was entitled to the properties in terms of the wakf. It does not appear to have hcen ill controversy that in the absence of the wakf, the respondent Sabir Ali would be ent_itled to the properties under the rule of primogeniture by which admittedly the devo­ lution of the properties was governed. Eventually the respondent Sabir Ali filed the suit out of whirh this apr,eal arises, claiming the properties left by Asg~a.r Ali under·the rule of primogeniture. He denied the execution, attestation, genuineness and validity of the , deed of wakf on various grounds. Hoha.ni:Qlad Umar, who was the first dAfendant in 1962 Thal.ur ;\l.ohd. Ismail -v. FhakurSabir Ali Sarlror J. Th•lcw Mohd. Ismail •• T-'iJkur Sabir Ali s"'""' J. 40 SUPREME COURT REPORTS (1963] the suit, resisted it basing himself on the deed of wakf. The widow and the other children of Asghar Ali were also defendant.s in that suit and opposed the respondent Sabir Ali's claim on various grounds but with these this appeal is not conoerned. The trial Court found the deed of wakf to l,e valid in every 1 way but came to the conclusion that certain properties left by Asghar Ali had not been included in it. With regard to these it made a decree in favour of the respondent Sabir Ali and this part of the deoree was never challenged and has therefore become final. The trial Court dis­ missed the rest of the respondent Sabir Ali's suit as it took the view that the deed of wakf was valid and under it Mohammed Umar was entitled to the properties as the Mutawalli. The respondent Sabir Ali then appealed to the High Court at Allahabad. While the appeal was pending their, Mohammad Umar and Mohammad Ali, another defendant, died and their legal repre­ sentatives · were brought on the record in their places, and another son of Asghar Ali, the appellant Mohammad Ismail who also was a defendant in the suit and who had become the mutawalli under the terms of the deed of wakf on the death of Moham­ mad Umar and Mohammad Ali, was substituted a1 mutawali in the place of Mohammad Umar. The High Court agreed with the view of the trial Court that the wakf deed was genuine and had been executed with due formalities but held that it was of no effect as it offended the rule against perpetuity contained in s. 12 of the Oudh Estates Act to the terms of which I shall presently refer. Against that judgment Mohammad Ismail bas filed the present appeal. Two questions have been raised int.his appeal. The first is whether the Act permits a transfer by way of a wakf as it only permits tr11onsfer1 inter ""'°11 .... ! " .. 1 S.C.R. SUPREME COURT REPORTS. 41 and by will and the seoond whether the wakf crea­ ted in this case. offends s. 12 of the Act. Seotion 2 of the Act defines 'transfer' as alienation inter.vivo."!. Section 11 provides that sub­ ject to certain things to which it is not necessary to refer, every taluqdar of sound mind and not a minor shall be competent to tr an sf er the whole or any portion of bis estate or of bis right and interest therein, during his life time by sale, exchange, mortgage. ]ease or gift and to bequeath by his wel1 to any person the whole or any portion of such estate, right and interest. -So it was said that a taluqdari estate can be disposed of eit~er by a transfer inter vivos in one of the manners mentioned in s. 11 or by a. will also therein mentioned but in no other way. . It was contended· that the wakf in this case did not constitute a disposition in either of these methods and was therefore bad. · I think it necessary now to refer to two more sections of the Act before examining this conten­ tion. The first is s. 13 which is concerned with gifts of the estate for purposes other than religious or charitable and .with this section we are not concern· ed in this appeal. The other is s. 1,8· which provides that no taluqdar "shall have power to give his estate, or any portion thereof, or any interest there. in, to religious . or charitable uses, except by an instrument of gifts signed by the donor and attest­ ed by two or more witnesses not less than three month before his death and presented for registra· tion within· one month from the date.of its exeou. tfon and registered.'' It is not in controversy. that the properties covered by the deed of wakf from 'estates' within the meaning of the Act. Wit.h regard to t.he contention that a transfor by wa.y of wakf llf&S not permitted by the Act as it is not a transfer ~nter vivos, it seems to . me that a transfer inte?' vivos contemplated by the Act doe1 not exclude a transfer by way of wa.kf. Section l8 1962 Tiu '/cur Mohd Ismail •• Thakur So/Jlr AU --Sarkar J, 11162 Thal ur Mohd. Ismail v. Thakur Sobif' Ali Sark<r J, 0ontemplates a transfer to religions and "haritable uses. That secti<in as it now stands was enacted l1y U. P. Act III of 1910. I find it imposiiihle to think that tho religious and che.ritable nses men­ tioned in it were such as are contemplated in English law only, for the Act was meant for Indian taluqdars of all communities the larger number of whom were Mohammedans and Hindus. If it were so, no Hindu could have created a debutter nor a Mohamedan any wakf for each would have been badas a gift to a superstitious use (Boorne v. Keane)(') and also as gift to God. [ cannot imagine that the Act intended such a result. Therefore, in my view the Act contemplated a transfer by way of wakf as a transfer inter vivOB. This variety of transfers can easily be brought under gifts mentioned in s. 11 as such transfers are without consideration and voluntary. The other question is whether a wakf-alal­ aulad offends s. 12. That section is in these terms: S. 12 No transfer or bequeat under this Act shall be valid where by the V('sting of the thing transferred or bequeathed may be de­ layed beyond the life-time of one or, more persons Jiving at the decease of the transferee or testator and the minority of some person who shall he in existence at the expiration of that period, and to whom, if he attains full age, tho thing transferred or bequeathed is to belong. The High Court held that the wakf was a valid wakf under the Mueealman WakfValidating Act, I913but it held that it offended s. 12 inasmuch as •'though the corpus of wakf property is transferred to God Almighty, yet its usufruct is transferred to unborn descendants of thfl waqi geueration after generation." I am unable to accept this view of the matter. (1) ~19\9] A,C. 815,8f5, ' ) 1 ' J I S.C.R. SUPREME COURT REPORTS 43 In Abul Fat,a Mahomeil Ishak v. Ru-~somoy Dh'U.r Ohowdry (1) the Privy Council held that in a wakf of the kind that we havo heforA nR, the gift to charity after·t.he total extinction of tho donor's family was illusory and therefore there was really no wakf at all and "the poor have been put into this settlement mereJy to give it a colour of piety, and so to legalize arrangements meant to serve for the aggranqizement .of a family": (p. 89). This decision caused ·considerable dissatisfaction in the Moham­ medan community in India and to legalise wakf· alal-aulad the Mussalman Wakf Validating Act, 1913 was passed. That Act definea wakf as "the perma­ nent dedication by a person professing the Mussa.I­ man faith of any property for any purpose reco­ gnised by the M~ssa.lman Jaw as religious, pious or charitable": s. 2(1). Sections a and 4 of this Act provide as follows :- · S. 3 : . It shaU be lawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accor­ dance with the provision of Mussa.Iman law, for the following among other purposes :- (a) for the maintenance a.ncl support wholly or partial.ly of his family, children . or descendants, and (b) where tho person creating a. wakf is a Hanafi Musealman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits, of the property dedicated : Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recogn~ed by the Mussalman Jaw as a religion~. pious or charitable purpose of a. permanent bharaq­ ter. (I) (J894) L.R. 22 I.I\. 76. . . l96Z Thalcur Mohd. Ismail v. T/iaknr Sabir Ali --· SarkarJ. 1962 Thakur Mohd. Isn14il •• Thal:111 Sabir Ali S rkar J. 44 SUPREME OOURT REPORTS [1963] S. 4. No such wakf shall be deemed to ho invalid merely berause the benefit reserved theroin for the poor or other religious, pious or charitabl.e purpose of a permanent nature is postponed until after the extinction of tho family, children or descendants of the person creating the wakf. It will be obvious from these provisions of the Wakf Validating Act that in the case of a Hanafi Mnssalman, a wakf for the maintenance and support of the wakif and his descendants from.generation to generation and after the extinction of the family to the poor or other religious, pious or charitable pmpose of a permanent nature is a wakf and there· fore a dedication for a purpose recognised by the Mussalman law as religious, pious or charitable. According to the concept of Mohammedan law 'wakf' signifies "the extinction of the appropriator's ownership in the thing dedicated and the detention of the thing in the implied ownership of God, in such a manner that its profits may revert to or be applied "for the benefit of mankind,": (Mulla's Mnhomedan Law, 15th ed., p. 154). The High Court held the wakf created by Asghar Ali to be a valid wakf within the Act of 1913 and with that. view I nm in complete agree­ ment. But I am unable to agree that under that wakf the usufrnct is transferred to unborn descen. dants. A transfer is a wakf only where the usufruct is applied for the "benefit of mankind". Since the Act of 1913, there is no doubt that a transfer for the support of the wakif and his descendants gene. ration after generation with a gift to other charities on the extinction of the wakif's family is a transfer for the benefit of mankind. The transfer is a wakf from the beginning. So all its purposes are for the "benefit of mankind". Whether such a notion iR acceptable to one who is not a Mahomedan is to no purpose. In eqch a wa~f t)j.e corpus vests nj ") i S.C.R. SUPREME COORT REPORTS 45 God so that the usufruQ~ ma.y be utilised for the "benefit of mankind". If what the High Cour.t said was right, then the corpus alone of the wakf property wonld vest in God and either God had no interest' in the usufruct or was a trustee of the unborn. descendants. But it is well-settled that wakf imports no trust in the English sense.· So it~as said in Vidya Vamthi v. Balusami Ayyar (1) '' ut the Mohammedan law reJating to trusts di. ers fundamentally from the English law. It o~s its origin to a rule.laid down by the Prophet of Islam; and means "the tying up of property in the ownership of God the Almighty and the devo­ tion of the profits for the benefit of human beings'. When once it is declared that a particular property is wakf ........ ~ ... the right of the wakif is eitin- guished and the ownership is transferred to the Almighty''. ft would indeed be difficult to COD• ceive of God as a trustee. The other alternative., namely, that the corpus a.lone vests in God, is equally foreign to the concept of a wakf. If the usufruct in the present wakf vested in the descen­ dant.a of the w~kif from generation to g~neration, . on the same prinoiple it might be said thfl.t in a wakf for the support ofindigent widows, the usufruct -· vested in them and many of them would be, born long after the wakfwas. created. I am not· aware that it has ever been so held. ·I feel no doubt that in a wakf the usufruct never vests ' in persons who form the object of the pious purpose for which it w.as created. If the usufruct vested in the unborn descendants 1 then . God has no interest in it and · the corpus isi not detained in his custody so that the usufruct might be applied for' a ' pious . purpose. In such .· a. case · indeed .no wakf would have been created. That would be a: diff­ erent case. Hero we have a valid wa.kf, and the only question itt whether the · wakf violates s. 12 of the Act. T~e misconception, as I think it is, (l) (1921) L.R,41J. I.A. l02, 912. 19~S Thakur Mohd:-­ lsmoil •• Thuar Sabir Ali SarkarJ. 19611 Thakur Mohd. Ismail •• Thaklff Sabir A.Ii SarlrurJ. 46 SUPREME COUR'I' REPORTS [1963] that the usufruct vests in unborn descendants aris!'s from refusing to c-ecognise that in Muslim law a wakf.alal-aulad is wholly a gift to charity and everything vest in God and nothing in the objects of the charity. It seems to me that if the present wakf is a valid wakf, which I think it is, it cannot be said that the descendants of Asghar Ali acquired under it a vested interest in the usufruct of the wakf properties. Remembering therefore t.hat since the Wakf Validating Act, a wakf.alal·aulad, that is to say, • a wakf of the kind with which we are concerned is as much a wakf as any other variety of wakf, it has to bo said ·that tho subject mat.ter of such a wakf vests immediately on its creation in God, not as a tmstee but as the owner and so vests in Him because it is & wakf, that is to say, because the profits of the property are to be spend for the benefit of mankind. That being so, the vesting of the property transferred is not postponed at all and therefore 8. 12 is not violated by a transfer by way of wakf. The real effect of the creation of such a wakf is to transfer the property to God and vest it in Him immediately for the benefit of mankind. I am, therefore, of the view that the wakf created by Asghar Ali is a valid wakf and is not bad as offending s. 12 of the Oudh Estates Act. In the result I would allow the appeal. BY COURT. GAJENDRA.GADKAR, J.- In accor dance with the opinion of the majority, the appeal is dismil!lled with costs.