Order

Leave granted in SLP (C) No. 1638/81.

2. This appeal by special leave arises from the judgment of the Division Bench of the Allahabad High Court, made on March 14, 1980 in First Appeal No. 399/62 and 28/64. The Nawab Sir Mohammad Yusuf of Jaunpur had executed Wakfnama of April 5, 1956 and he died on May 3, 1956. The appellant-Zubeda Begum, his widow filed the suit for cancellation of the Wakf-nama and for possession of the properties with a declaration that she is entitled to the compensation to the extent of 1/4th share of the properties given in the list. The trial Court partly decreed the suit. On appeal, the High Court dismissed the suit. Thus, this appeal by special leave.

3. The main controversy is with regard to the validity of the Wakf-nama created by Nawab Sir Mohd. Yusuf which reads as under:

"I, Nawab Mohammad Yusuf, son of Nawab Abdul Majid Saheb, resident of Mohalla Alam, Post Office Sadar Jaunpur City.

Whereas I am a follower of Hanfi Sunnet Ul Jammat of Islam and whereas it is obligatory on every person that he should make arrangement by which charity and arms may continue to be given and dependent may also be looked after. The properties mentioned are worth Rs. 2,44,679 which are my exclusive ownership the detail of which has been given in Schedule As, Ba, Da and Sa.

The executant has no issue either male or female. I have got a nephew (My sister s son) Syed Shah Mohammad Hashmi, B.A., LL.B, Vakil, Allahabad who is the son of Moulvi Nazir Shah Hashmi. He is very promising, able and virtuous by nature. I have brought him up as if he was my own son.

The cherished desire of me is that (1) Syed Shah Mohammad Hashmi aforesaid as well as (2) descendants of my wife and (3) other poor penniless people should be benefited by this Waqf. Therefore, after considering pros and cons of this document without any coercion or undue influence from anyone in a state of my full senses and wisdom and with my own free will, I hereby create a waqf of the properties in pursuance of Act 6 of 1913. I have given up my proprietary possession over the properties and have re-taken them as the Mutawalli of the Waqf from this day onwards. I have no proprietory interest left in the properties and every bit of the property has become vested in God for the benefit of the persons mentioned above. These properties have become Waqf property for all times to come. This document will be binding on everybody and the name of the property hereafter will be called "Waqf-e-Yusufia."

And all the proceedings against the Waqf estate will be taken under the name of "Waqf-e-Yusufia". I settle the line of Tauliat as follows :-

(1) That upto my lifetime, I, the executant will be the Mutawalli of the Waqf properties and perform and take all proceedings vis-a-vis the properties in the capacity of my becoming the Mutwalli. No one will have the right to question my doings. The executant will have the right on the Waqf properties, whether they are planted trees, groves, groves cultivation and the groves of the fruit-bearing mango trees. If and when it is necessary for the preservation of the Waqf properties, I will have the right for sale, lease or mortgage for the benefit of the Waqf I will also have a right on the abolition of the Zamindari to get the compensation as Mutawalli of the Waqf. These rights will continue till I am alive and when I am no more, the succeeding Mutawalli will have the same rights in pursuance of this Waqf Deed.

(2) That after the lifetime of the executant Syed Shah Ahmed Hashmi would be the Mutwalli of this estate. And after Syed Shah Ahmed Hashmi, his eldest son and after him the eldest son of his eldest son, generation after generation will continue in perpetuity as Mutwalli of the Waqf estate.

(3) If per chance the eldest son of Syed Shah Ahmed Hashmi does not remain alive and died without any issue; in that contingency, the Tauliat will go to the branch of the