1. Dispute over possession of talukdari estate — validity of wakf-alal-aulad created by a talukdar — conflict between family wakf and succession under Oudh Estates Act, 1869. (Para 1 , 2 , 15 , 16 , 17 )
Back
Next 
1962 Supreme(SC) 117
SUPREME COURT OF INDIA
26th March 1962.
P.B. GAJENDRAGADKAR, A.K. SARKAR AND K.N. WANCHOO, JJ.
Thakur Mohd. Ismail, Appellant
Versus
Thakur Sabir Ali and others, Respondents.
Civil Appeal No. 256 of 1959. 1723
Advocates appeared
Mr. S. P. Sinha, Senior Advocate (Mr. Rameshwai Nath, Advocate of M/s. Rajinder Narain and Co., with him), for Appellant; Mr. C. K. Daphtary, Solicitor General of India (Mrs. E. Udayarathnam and Mr. S. S. Shukla, Advocates with him), for Respondent No. 1.
Advocates:
C.K.DAFTARY, E.UDAYARATHNAM, RAJINDAR NARAIN, RAMESHWAR NATH ROY, S.P.SINHA, S.S.SHUKLA
C.K.DAFTARY, E.UDAYARATHNAM, RAJINDAR NARAIN, RAMESHWAR NATH ROY, S.P.SINHA, S.S.SHUKLA
A wakf-alal-aulad involving talukdari property is a transfer subject to the Oudh Estates Act. It violates the rule against perpetuity if the beneficial interest is postponed for generations, as "vesting" under Section 12 requires both legal and beneficial ownership to vest within the prescribed period.
Headnote:(A) Oudh Estates Act, 1869 - Sections 2, 11, 12, and 18 - Mussalman Wakf Validating Act, 1913 - Sections 3 and 4 - Wakf-alal-aulad - Rule against perpetuity - A wakf-alal-aulad constitutes a transfer by way of gift under the Oudh Estates Act. While the Mussalman Wakf Validating Act, 1913, legalizes such wakfs, they remain subject to the Oudh Estates Act if the property is talukdari. A wakf-alal-aulad where the primary benefit is for descendants is not a "religious or charitable use" within the meaning of Section 18 of the Oudh Estates Act, as the authority framing the statute could not have intended provisions for one's children to be considered charitable. (Paras 9, 10, 12)
(B) Rule against perpetuity - Section 12, Oudh Estates Act, 1869 - The "vesting" contemplated under the rule against perpetuity refers to absolute vesting, encompassing both legal and beneficial estates. If the beneficial enjoyment is tied up for generations, the transfer is hit by the rule against perpetuity, even if legal title is said to vest immediately in a deity. A trust where the usufruct is tied up forever for the benefit of others infringes the rule against perpetuity. (Para 13)
Facts of the case:
A talukdar executed a deed of wakf-alal-aulad creating a wakf of his entire property for the benefit of himself, his family, and descendants generation after generation, with a small portion allocated for charities. After his death, a dispute arose between the descendants. One party claimed succession based on the rule of male lineal primogeniture under the Oudh Estates Act, challenging the validity of the wakf deed on the grounds that it violated the rule against perpetuity under Section 12 of the Act.
Findings of Court:
The court found that the wakf-alal-aulad was a transfer under the Act. It held that the wakf did not qualify as a gift for religious or charitable purposes under Section 18 because the primary beneficiaries were the descendants. Consequently, the wakf violated the rule against perpetuity under Section 12 as absolute vesting (both legal and beneficial) was postponed beyond the permitted period.
Issues: Whether a wakf-alal-aulad is a transfer governed by the Oudh Estates Act and whether such a wakf violates the rule against perpetuity under Section 12 of the said Act.
Ratio Decidendi: The Oudh Estates Act is a complete code for talukdari properties. A wakf-alal-aulad is a gift and thus a transfer. Since the primary benefit of the wakf in question was for the descendants and not for religious or charitable purposes, it is subject to the rule against perpetuity. Because the beneficial interest was postponed for generations, it failed the test of absolute vesting required by Section 12, rendering the wakf invalid.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether wakf-alal-aulad is outside the Oudh Estates Act or exempt from the rule against perpetuity under Section 12 via Section 18. (Para 2 , 3 , 9 , 11 , 20 , 21 )
3. The Oudh Estates Act is a complete code; wakf-alal-aulad is a transfer subject to the rule against perpetuity as beneficial vesting is postponed. (Para 6 , 7 , 9 , 10 , 11 , 12 , 13 )
4. A wakf-alal-aulad violates the rule against perpetuity if absolute vesting—comprising both legal and beneficial estates—is postponed beyond the period prescribed by law. (Para 13 )
5. Appeal dismissed; the wakf-alal-aulad held invalid for contravening the rule against perpetuity under Section 12 of the Oudh Estates Act, 1869. (Para 14 , 31 )
6. Is a wakf-alal-aulad governed by the Oudh Estates Act, 1869?
Yes. The Act is a complete code for talukdari property. Since a wakf-alal-aulad involves a transfer of property—specifically a gift to God—it falls within the definition of transfer under Section 2 and is subject to the Act's provisions. (Para 6 , 7 , 9 , 10 )
7. Does Section 18 of the Oudh Estates Act provide an exception to the rule against perpetuity for religious or charitable gifts?
No. Section 18 is a procedural provision for making gifts for religious or charitable uses. All transfers or bequests under the Act, including those made under Section 18, remain subject to the rule against perpetuity enshrined in Section 12. (Para 11 )
8. Does a wakf-alal-aulad for family maintenance qualify as a religious or charitable use under Section 18?
No. A wakf primarily for the benefit of the wakif's descendants is not a religious or charitable use. The term refers to purposes beneficial to mankind generally, not private family maintenance, and is not recognized as such under the Act. (Para 12 )
9. How is vesting interpreted under the rule against perpetuity in the context of a wakf?
Vesting under the rule against perpetuity requires absolute vesting, meaning both legal and beneficial estates must vest. If the beneficial enjoyment is postponed for generations, the transfer is invalid, even if legal title vests in God immediately upon creation. (Para 13 )
Judgment
WANCHOO, J. : (On behalf Of Gajendragadkar J. and himself). This is a defendant s appeal on a certificate granted by the Allahabad High Court. The suit was brought by Thakur Sabir Ali plaintiff-respondent for possession. The following pedigree-table omitting the unnecessary names) which is not in dispute, may be set out to appreciate the case of the plaintiff:
The case of the plaintiff was that Thakur Amir Baksh owned considerable properly known as Tipraha Estate in the district of Bahraich at the time of the annexation of Oudh. He died in 1857 and was succeeded by his son Thakur Faten Mohd., who was subsequently recognised by the Government as the talukdar of the Tipraha Estate. Thakur Fatch Mohd. died issueless and on his death Thakur Nabi Baksh succeeded him as the talukdar under the family custom and under the provisions of the Oudh Estates Act, No. 1 of 1869, (hereinafter called the Act), On the death of Thakur Nabi Baksh the estate passed to his only son Asghar Ali. who in his life time acquired certain other properties which were, both talukdari and non-talukdari in nature. In August 1925 Thakur Asghar-Ali executed a deed of wakf-alal-aulad by means of which he created a wakf of his entire property for the benefit of himself, his family and descendants generation after generation. 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 rule of primogeniture were to be mutwallis. The wakf deed provided that some amounts would be paid to charities 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 included 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 son 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 led to protracted litigation in the Revenue Courts and eventually an order for mutation was passed in favour of Thakur Mohd. Umar defendant who is now dead. Thakur Mohd. Umar came into possession of the properties mentioned in schedules A, B, D, E, F, H (except certain items mentioned therein) while the other defendants came into possession of certain other properties, with the details of which we are not concerned now.
2. Thakur Sabir Ali then instituted the present suit for the possession of the entire property left by Thakur Asghar ali and for mesne profits. His case was that he was entitled to succession under the rule of male lineal primogeniture in accordance with the provisions of the Act and the family custom. He denied the execution, attestation, genuineness and validity of the wakf deed alleged to have been executed by Thakur Asghara ali which was relied upon by Thakur Mohd. Umar for his title to the property. The wakf deed was further challenged on other grounds with which we are however not concerned now except one. But the main attack against the validity of the wakf deed was that the subject-matter of the deed was property subject to the special provisions of the Act and therefore the said deed was 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 be considered in the present appeal.
3. The defence was that the wakf deed was 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 Asghar ali in that connection. It was further alleged that even if the wakf was invalid as a gift it would be operative as a will and the mutwalli would be entitled to the possession o
