THAKUR MOHAMMAD ISMAIL Vs. THAKUR SABIR ALI

JUDGEMENT

(1.) THE following Judgments of the court were delivered. :

(2.) THIS is a defendant's appeal on 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:- <IMG>JUDGEMENT_1722_AIR(SC)_1962Image1.jpg</IMG> The case of the plaintiff was that Thakur Amir Baksh owned considerable property 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 Fateh Mohd., who was subsequently recognised by the government as the talukdar of the Tipraha Estate. Thakur Fateh 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 1.869, (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 lifetime 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 on 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.

(3.) 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 a. 12 of the Act is correct. It is necessary therefore to refer briefly to the history of the talukdari estates with which the Act is concerned. Suffice it to say that after the Mutiny of 1857 was over, Lord Canning, the then governor-General of India issued a proclamation on the 15th of March, 1858, by which all proprietary 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 they received back their estates',- only those 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 sanads to them. Thus all the preexisting 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 followed by the Oudh Estates Act of 1869, which further defined the rights of talukdars to the estates granted to them by the British government. It will appear from the provisions of the Act that the rights of talukdars and grantees to whom estates were granted by the British government were defined in the Act without distinction of religion or caste, so that the Act governed all talukdars irrespective of the religion to which they might belong. Further the right of succession is also provided in the Act and the personal law of a talukdar with respect to the talukdari property stands abrogated except and in so far the Act imports it. Further it is clear that in respect of matters dealt with by the Act, it is a self-contained and complete Code with respect to talukdari property covered by it. This was the view taken by the Privy council in Chandra Kishore Pewari v. Sissendi Estate (1), where it was observed that ,the Oudh Estates Act is a special Act affecting special class of persons in respect of the properties conferred upon them. THE Act is self-contained 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.