MOHAMMAD SADIQ Vs. AMANAT ULLAH AND

JUDGEMENT

(1.) The plaintiff is the appellant before this Court. His suit was dismissed by the trial Court. The appeal preferred by him also failed. The relief sought in the plaint was that the Court may be pleased to declare that the property described at the foot of the plaint was Waqf property and vested in the Almighty and, as such, the sale deed executed in respect of the said property by Mohammad Arif, the then Mutwalli in favour of defendants-respondents I to 5 on 11th of January, 1955 was illegal and invalid and not binding on the plaintiff. In support of the said-relief, the plaintiff relied on a short pedigree. He stated that the property in dispute along with some other property originally belonged to one Sheikh Mohammed. On his death, Sheikh Mohammad, was survived by a widow Hafsa Bibi, a son Hameed, and three daughters, namely Bilqis Bibi, Nafees Bibi and Safia Bibi. Hameed was survived by a son Arif, defendent-respondent No. 6 and a daughter Badrunnisa, defendant-respondant no. 7. Plaintiff claimed himself to be the son of Arif plaintiff has led evidence to prove this pedigree. The two Courts below have concurrently held that it was correct. Plaintiff stated that if the property of Sheikh Mohammad was divided into forty shares, his son Hamed was entitled to 14 shares and each of the three daughters acquired 7 shades. Five shares in the property devolved his widow Hafsa Bibi. Thus, according to the plaintiff, the joint share of Smt. Hafsa Bibi and Hameed came to 19/40 shares. The shares in the assets left behind by Sheikh Mohammad were correctly worked out by the plaintiff. They were not disputed on behalf of the defendants. The plaintiff then went on to that Smt. Hafsa Bibi and Hameed executed a Waqf Alal Aulad in respect of their 19/40 shares in the immovable property inherited by them from Sheikh Mohammad. This Waqf deed was executed on April 22, 1936 and was duly registered. The deed provided that the first Mutwalli of the Wafq shall be Hameed and on his death, the Mutwalliship shall devolve on Smt. Hafsa Bibi. On the extinction of the respective lives of the two executants, the eldest male lineal descendant of Hameed shall be the Mutwalli of the dedicated property. The object of the waqf was the maintenance and support of the two Waqfs during their life time and on their death, their descendants were entitled to be maintained and supported from the usufruct of the dedicated property generation after generation. Plaintiff pleaded that Hameed died during the lifetime of his mother Smt. Hafsa Bibi whereupon the latter assumed the Mutwalliship of the Waqf property. A suit was filed by one of the daughters of Sheikh Mohammad, namely, Bilqis Bibi, for partition and the said suit was decreed. In the final decree, a separate lot was carved out in favour of the Waqf and the property in dispute was included in the said lot. Thereafter, Smt. Hafsa Bibi died and her grandson Arif, defendant-respondent no. 6, became Mutwalli of the Waqf. The plaintiff stated that although the property mentioned at the foot of the plaint was inalienable, Arif and his sister transferred the property described at the foot of the plaint in favour of defndants-respondents 1 to 5 by means of the sale-deed dated January 1, 1955. It was on these allegations that the relief referred to above was claimed by the plaintiff. The plaint was presented by the plaintiff on 2,1,1961 at the age of eight years. The suit was instituted under the provisions of Order 32 Civil Procedure Code with Smt. Shah Bano, mother of the plaintiff, as his next friend. The age of the plaintiff was shown in the plaint as about eight years. Smt. Zakia Bibi who was one of the daughters of Sheikh Mohammad, was also arrayed as defendant no. 8 in the suit. I have mentioned about the minority of the plaintiff because a preliminary objection with regard to the maintainability of this second appeal has been urged on behalf of the defendants-respondents. The said objection will be dealt with at its appropriate place. The plaintiff claimed that be had a right to maintain the suit as he has one of the beneficiaries of the Waqf and was also its presumptive Mutwalli. The suit was mainly contested by defendants-respondents 1 to 3 and 5. They filed a joint written-statement. A separate written-statement was filed by defendant-respondent no. 4. No contest was offered by other defendants in the suit and they remained ex parte. The contesting defendants denied the execution of the Waqf deed relied upon by the plaintiff. In the alternative, they pleaded that the said Waqf was never acted upon and remained a dead letter. They alleged that Arif and Badrunnisa had validly transferred the property in dispute in favour of the contesting defendant as they were its owners. They claimed that the contesting defendants-respondents 1 to 5 were in adverse possession of the suit property and the suit was barred by limitation. They also relied on the bar of Section 11 and Section 92 of the Code of Civil Procedure. They also invoked Section 42 of the Specific Relief Act to defeat the plaintiff's claim. According to them the suit was undervalued and the Court fee paid was insufficient. They also stated that the Sunni Central Board of Waqf was a necessary party and the suit was bad for its non-joinder. They also stated that the suit was hit by the provisions of law contained in the U. P. Urban Areas (Zamindari Abolition and Land Reforms) Act. The trial Court framed appropriate issues on the pleadings of the parties. The issues pertaining to undervaluation and insufficiency of Court fee, bar of Sections 11 and 92 of the Code of Civil Procedure were not pressed before it. The contesting defendants-respondents also gave up the plea that the suit was hit by Section 42 of the Specific Relief Act of the provisions of U. P. Urban Areas (Z. A. and L. R.) Act. They also did not insist that the suit was barred by limitation on the ground that the contesting defendants were in adverse possession of the property in dispute. The trial Court held that the property in dispute was not Waqf property. It also held that the plaintiff-appellant had no right to sue. It further held that the sale-deed executed by Arif and Smt. Badrunnisa in favour of defendants-respondents 1 to 5 on January 11, 1955 was valid. On these findings, the trial Court denied to the plaintiff the relief sought by him and dismissed his suit. The plaintiff went in appeal. The appeal was heard by the Additional Civil Judge, Azamgarh. He dismissed it by his decree dated 8-4-1972. In consequence, this Court is called upon by the plaintiff to set aside the findings recorded against him and to decree his suit in to to. The first Court of appeal, hereinafter referred to as 'the Court of appeal', allowed the question of the bar of Section 11 to be urged before it. It referred to the evidence produced by the parties on this aspect of the case. It reached the conclusion that the suit was not barred by Section 11 of the Code of Civil Procedure. The correctness of that finding has not been assailed before this Court on behalf of the contesting defendant-respondents. The Court of appeal was of the view that a certified copy of the Waqf deed relied upon by the plaintiff only had been produced in support of the execution of the Waqf. In its view, the loss of the original had not been proved and, as such, the certified copy alone could not prove that a waqf deed was executed by Hameed and Smt. Hafsa Bibi on April 22, 1936. It held that the said deed of Waqf was not acted upon and at any rate, the object of executing the waqf deed was to defeat and delay the creditors and to advance family aggrandisement. In this view of the matter, the Court of appeal refused to give effect to the waqf deed relied upon by the plaintiff It accordingly held that the plaintiff had no right to sue and the sale-deed executed by Arif and Smt. Badrunnisa in favour of contesting defendants-respondents on 11-1-1955 was a valid document. The correctness of each of these findings has been assailed before this Court on behalf of the plaintiff. At the hearing of the second appeal, a preliminary objection was raised on behalf of the contesting defendants-respondents 1 to 5 that the second appeal having been filed by the plaintiff as minor through next friend, the memo of appeal is liable to be rejected in limine on that ground alone. Now this second appeal was filed on October 3, 1972. The age of the plaintiff at the time of the institution of the suit in the year 1961 was about 8 years. It is thus evident that the plaintiff had attained the age of 18 years before the institution of the second appeal. An application has been filed on behalf of the plaintiff stating that the presentation of the memo of appeal showing the plaintiff-appellant as a minor was only an irregularity and occurred on account of a bona fide error He stated that he intends to prosecute the second appeal and that the said irregularity may be condoned. In my opinion the second appeal was filed showing the plaintiff as a minor on account of a bona fide error. The plaintiff had attained the age of majority shortly before the filing of the second appeal. This fact appears to have escaped the attention of the counsel who filed the memo of this second appeal. The second appeal is in the interest of the plaintiff. He does not disown the second appeal. Instead he has expressed a desire to proceed with the second appeal. The institution of the second appeal showing the plaintiff-appellant as a minor is an irregularity which merits condonation. Law of procedure is after all a means to attain justice. It cannot be called in aid to defeat the purpose for which it has been forged. In view of these considerations, I am unable to uphold the preliminary objection. The view which I am taking on this point finds support from the rationale of the decision of a Special Bench of the Court in the case of Wall Mohammad Khan v. Ishak Ali Khan and others (A. I. R. 1931 Alld. 507 ). As already pointed out, the plaintiff did not produce the original of the waqf deed dated April 22, 1936 before the trial Court. He only filed a certified copy of the said document. Abdul Rahman (P. W. I.) has stated that the said document had been executed by Smt. Hafsa Bibi and Hameed. He further disclosed that the original of the document was in possession of Ishak Abbasi, husband of Smt. Zakiya Bibi, sister of Hameed, who was withholding the same. The trial Court originally treated the document as having been duly proved. It, however, subsequently came to the conclusion that the loss of the original had not been proved and a certified copy of the document could not be accepted as secondary evidence of the original. Similar view has been taken by the Court of appeal. It appears that the two Courts below had only the provisions of Section 65 of the Indian Evidence Act in view at the time of writing their judgments. They did not take into account subsection (2) of Section 90 which had been introduced in the Indian Evidence Act by the U. P. Civil Laws (Reforms and Amendment) Act, 1954. The said sub-section of Section 90 of the Indian Evidence Act is in the following words;- Where any such document as is referred to in sub-section (1) was registered in accordance with the law and relating to registration of documents and a duly certified copy thereof is produced, the Court may presume that the signature and every other part of such document which purports to be in the hand-writing of any particular person, is in that person's handwriting and in the case of a document executed or attested, that it was duly executed and attested by a person by whom it purports to have been executed or attested. " The provision of law contained in the aforesaid sub-section of Section 90 of the Indian Evidence Act thus makes it permissible for a Court of law to raise a presumption about the genuineness of document which has been registered in accordance with the law relating to registration of documents. The original Section 90 of the Indian Evidence Act which has been renumbered as sub-section (1) of Section 90 allows such a presumption to be raised only to such documents which are produced by a party to a case from proper custody. No such condition has been super-imposed by the legislature in the case of documents falling under the category enumerated in sub-section (2) of Section 90 of the Indian Evidence Act, as amended. Sub-section (2) of Section 90 has been enacted by the legislature for the sake of general convenience and is founded on the difficulty which is generally felt in getting the original of registered documents filed as evidence in a case. Further, sub-section (2) of Section 90 is neither controlled by the provisions of Section 65 of the Indian Evidence Act or by the provisions enacted in sub-section (1) of Section 90. If the two Courts below had the provision of sub-section (2) of Section 90 of the Indian Evidence Act in view, they would not have held that the plaintiff had failed to prove the execution of the Waqf-deed relied upon by him, I, therefore, set aside the findings of the two Courts below and hold that the plaintiff had succeeded in proving the execution of the Waqf-deed relied upon by him. The Court of appeal has observed that even if it could be assumed that the original deed of Waqf had been executed by Smt. Hafsa Bibi and Hameed even then it could not be held that a valid waqf came into existence in pursuance of the said document. This finding of the Court below is, on the face of it, incorrect and cannot be sustained. A dedication by way of waqf is complete according to Imam Abu Yusuf by mere declaration. Neither delivery of possession nor appointment of Mutwalli is essential. Initially there was some doubt on this question and following the views of Imam Mohammad a contrary view had been expressed in some decisions of this Court. The controversy has, however, been set at rest by a Full Bench decision of this Court in the case of Mohd. Yasin v. Rahmat Ilahi (I. L. R. 1947 Alld. 520 (F. B.)) In the case of Gharib Das v. Munshi Abdul Hameed (A. I. R. 1970 S. C. 1035), it was, inter alia, held that an apparent transaction of waqf must be proved to be real and the onus of proving the contrary is on the person alleging that the Waqf was not intended to be acted upon. Similar view has been taken in a number of other decisions and it is unnecessary to burden this judgment by citing the said cases. I have gone through the Waqf deed dated 22nd of April, 1976 and I am of the view that the said document contained an unequivocal intention to create a Waqf. The Court of appeal has itself referred to a number of transactions in which the Waqf was recognised and given effect to. It has also noticed that a partition suit was filed in which Shikmi plots nos. 7 and 8/1 were allotted to the Waqf created by Hafsa Bibi and Hameed. It has, however, held that some of the Waqf property was auctioned and was purchased by the auction purchasers. In the proceedings relating to the auction sale which took place in 1947, Smt. Hafsa Bibi did not claim that the property auctioned in the said proceedings was Waqf property and did not belong to her personally. On the basis of these auction sales, the Court of appeal came to the conclusion that the Waqf was not acted upon. The conclusion at which the Court of appeal has arrived cannot be sustained on more than one grounds. In the first place, the Court of appeal has not recorded any finding that the property which was auctioned and sold to auction purchasers related to any portion of the property which was comprised in the Waqf created by Smt. Hafsa Bibi and her son Hamid. Be that as it may, the auction of any item of Waqf property in the year 1947 without any objection from Smt. Hafsa Bibi would not invalidate the Waqf in its inception. I have already held that the document dated 22nd of April, 1936 establishes unequivocal intention to create a Waqf. Once a valid Waqf had a come into existence, the subsequent conduct of the Mutwalli is wholly irrelevant in coming to the conclusion that the Waqf was not intended to be acted upon. In the case of Anjuman Islamia v. Latafat Ali (A. l. R. 1950 Alld. 109), it has been held :- " Even if there were something suspicious in the subsequent conduct, it does not avail the defendants. If there is any ambiguity about the intention of the founder of a Waqf, his subsequent conduct can be looked into in order to ascertain his real intention. If, however, the intention was clearly expressed in the Waqf Deed itself, it might be either genuine or disputed by the opposite party. If there was a genuine intention, the subsequent conduct, which in that case must necessarily be due to a reversal of the original intention to create Waqf, is absolutely immaterial and ineffective against God in whom the property has already vested. If the intention as expressed in the deed is disputed, it is open to the opposite party to prove that it really did not exist. Clearly the onus will lie upon him. He may prove it by reference to the subsequent conduct. But he will have to show that the subsequent conduct was influenced not by reversal of the original intention but by the very non-existence of it at the time of the alleged creation of Waqf. No hard and fast rule can be laid down for distinguishing between subsequent conduct influenced by the absence of intention to create a Waqf and that influenced by a reversal of the intention existing in the beginning. It is difficult for the opposite party to satisfy the Court that the subsequent conduct was really the result of the absence of intention in the beginning. " The Court of appeal has not adverted to this aspect of the case. It has not held that the executants of the deed of Waqf did not have any intention to create a waqf. Even if Smt. Hafsa Bibi allowed some property to be auctioned without raising any objection that it was inalienable and could not be sold, this omission can at best be attributed to her negligence in the discharge of her duties as Mutwalli of the Waqf. This omission cannot be called in aid to destroy the original intention of creating of Waqf manifested by the document itself. The Court of appeal has held that it was a matter of common knowledge1 that Waqf-deeds are executed to save the property from its creditors. It has referred to the recitals contained in the Waqf-deed in which it is stated that the executants of the Waqf were constituting the waqf with a view to perpetuate the memory of Sheikh Mohammad and to provide for the maintenance of their descendants and for the purpose of safe-guarding the property. From those recitals coupled with the assumption referred to above, the Court of appeal has come to the conclusion that the document dated 22nd of April, 1936 was a fictitious document. The reasoning of the Court of appeal is wholly erroneous and cannot be sustained. According to Mohammadan jurists, the Almighty is the owner of all property. Human ownership, according to them, is only derivative ownership. The moment a Waqf is created the derivative ownership ceases and the property reverts to the ultimate owner, namely, the Almighty. Once a property is subjected to dedication, it comes inalienable and is tied up. A Waqf from its very nature is perpetual and after the enactment of Musalman Waqf Validating Act, 1930, it can be created for the maintenance and support of the Waqf of his descandants. The recital contained in the Waqf, deed on which reliance has been placed by the Court of appeal, only refers to the incidents of Waqf. From the said recitals, it could not have been possibly concluded that Smt. Hafsa Bibi and Hameed had no intention to constitute a valid Waqf. The assumption that documents titled as Waqf-deeds are executed to save the property from the clutches of the creditors is an assumption for which there is no basis. It was not the case of the defendants that the document dated 22nd of April, 1936 had been executed by Smt. Hafsa Bibi and Hameed as they were in financially embarassed circumstances. There was no issue to that effect and no finding about it has been recorded either by the trial Court or by the Court of appeal. From the foregoing discussion, it follows that the two Courts below were in error in dismissing the suit of the plaintiff-appellants. The result is that this appeal succeeds and is hereby allowed with costs throughout. The suit of the plaintiff-appellant is decreed and it is hereby declared that the sale-deed dated 11th of January, 1955 executed by Mohd. Arif and Smt. Badrunnisa in favour of defendant-respondents 1 to 5 is illegal, inoperative and has BO legal effect. .