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Allahbad High Court
GANGESHWARPRASAD
Abdul Rauf - Appellant
Versus
Shamshulhaq - Respondent
Decided On : 11/05/1965
WAKF - VALIDITY - MUSSALMAN WAKF VALIDATING ACT, 1913 - EFFECT - INTERMEDIATE BENEFICIARIES OUTSIDE CLASS PERMITTED BY ACT - ULTIMATE CHARITABLE INTENT - APPLICATION OF DOCTRINE OF CY PRES.
Fact of the Case:
A wakf deed executed in 1932 provided for the enjoyment of the wakf property by the settlor during his lifetime, then by his wife, and then by certain individuals who were not members of the settlor's family. The ultimate beneficiary of the wakf was a charity. The settlor executed subsequent wakf deeds in 1934 and 1938, which purported to revoke the 1932 deed and create new wakfs with different beneficiaries. The appellant, who was the grandson of the settlor's brother, claimed to be the rightful Mutwalli of the wakf property under the 1938 deed. The respondents, who were the individuals named as beneficiaries in the 1932 deed, claimed to be the rightful Mutwallis. The appellant challenged the validity of the 1932 deed, arguing that the provisions in favor of the respondents and their descendants were repugnant to the creation of a lawful wakf and invalidated the deed from its inception.
Finding of the Court:
The court found that the 1932 wakf deed was valid and took effect as a wakf-alal-aulad, with the ultimate benefit reserved for the charity designated in the deed. The court held that the provisions in favor of the respondents and their descendants, who were not members of the settlor's family, were invalid, but that this did not invalidate the entire wakf. The court applied the doctrine of cy pres to accelerate the ultimate charitable intent of the wakf and held that the charity was entitled to the benefit of the wakf immediately after the death of the settlor's wife.
Issues: 1. Whether the 1932 wakf deed was valid and took effect as a wakf-alal-aulad. 2. Whether the provisions in favor of the respondents and their descendants were repugnant to the creation of a lawful wakf and invalidated the deed from its inception. 3. Whether the doctrine of cy pres could be applied to accelerate the ultimate charitable intent of the wakf.
Ratio Decidendi: 1. The Mussalman Wakf Validating Act, 1913, provides a statutory criterion for judging the validity of wakfs of the nature mentioned therein. The requisite condition for the validity of a wakf-alal-aulad is that its ultimate benefit should be reserved for the poor or for any other religious, pious, or charitable object of a permanent nature. 2. The provisions in favor of the respondents and their descendants, who were not members of the settlor's family, were invalid because they fell outside the class of persons for whose maintenance and support a wakf may be made under the Act. However, this did not invalidate the entire wakf, as the ultimate charitable intent of the wakf remained valid. 3. The doctrine of cy pres can be applied to accelerate the ultimate charitable intent of a wakf where an intermediate beneficiary is found to be outside the class of persons for whose maintenance and support a wakf may be made under the Act.
Final Decision: The appeal was dismissed, and the respondents were held to be the rightful Mutwallis of the wakf property.
2. In 1933 Sheikh Karamat instituted a suit for cancellation of the deed of wakf against the respondents but the suit was withdrawn by him with permission to file a fresh suit. Then, in 1934 he executed a deed of revocation annulling the wakf deed of 1932, and contemporaneously with it he appears to have executed another deed of wakf providing that after his death and the death of his wife Fahima Bibi, the Mutwalliship would go to Sheikh Mansab, the brother of Fahima Bibi. Again, in 1938 Sheikh Karamat executed a third deed of wakf annulling the second deed as well and providing that after him and his wife Fahima Bibi the Mutwalliship of the wakf would go to the appellant, who is the grandson of his brother Sheikh Amanat, and would then continue devolving upon the appellant's descendants generation after generation. Under this deed of 1938 a sum of Rs. 10 per annum out of the income of the wakf property is to be spent by all the Mutwallis towards the upkeep of the Madarsa mentioned therein and on the extinction of the line of the appellant the entire income of the wakf property has to be devoted to charity.
3. It appears that on the basis of the wakf deed of 1932 mutation in the revenue records in respect of the zamindari property comprised in the deed was effected in the name of Sheikh Karamat and after his death in 1940 in the name of Fahima Bibi as Mutwalli of the property. Upon the death of Fahima Bibi, which took place in 1946, a dispute regarding the Mutwalliship arose between the appellant and the respondents. Mutation in the revenue records was ordered to be made in favour of the respondents, and the suit which has given rise to this appeal was then instituted by the appellant for a permanent injunction restraining the respondents from interfering with his possession of the wakf property and for other alternative and incidental reliefs.
4. The appellant, who claims under the wakf deed of 1938, alleged that the execution of the earlier wakf deeds of 1932 and 1934 by Sheikh Karamat was brought about by means of fraud and those deeds did not represent the real intention of Sheikh Karamat. It was contended by him that Sheikh Mansab and the respondents did not belong to the family of Sheikh Karamat and as such no wakf could in law be created for their maintenance and support. The result, according to his contention, was that the deed of 1938 was the only valid and operative deed of wakf and it was the appellant who was the legal and the real Mutwalli of the wakf property. The respondents denied tha
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