ALIGARH MUSLIM UNIVERSITY Vs. SYED MOHAMMAD SAYEED CHISHTY

JUDGEMENT

(1.) THE dedication of a property to the almighty God-the creation of a wakf-has triggered off legal disputes amongst the mortals and an institution. THE appellant, the Aligarh Muslim University, has challenged the Judgment dated 7. 4. 1988 passed by a learned Single Judge of this Court, whereby the learned Single Judge had quashed and set aside the Judgment and decree dated 8. 2. 1978 passed by the Additional District Judge, Ajmer, wherein the learned trial Court had decreed the suit in favour of the appellant.

(2.) THIS case has a convoluted history: one Hakim Nizamuddin (henceforth to be referred to as `hakim Sahab', for short), an experienced physician and a devout Muslim, owned a three-shoried building in Gali Langar Khana, opposite the Dargah Sharif at Ajmer. The building including not only shops, but also three libraries, which housed costly books and a "dawa khana" (clinic) of the Hakim Sahab. Being a religious man, on 6. 7. 1942. Hakim Sahib executed a "wakf alal-aulad" (family wakf) (Ex. 4) with regard to the three-storied house (henceforth to be referred to as `the suit property', for short ). For the sake of clarity, this Wakfnama shall be referred to as `the 1942 Wakf'. According to the Wakif (the creator of the wakf)-Hakim Sahab-the said wakf was to be governed by the Hanafi School of Muslim Law. Hakim Sahab was to be the first Mutawalli (Manager or superintendent of the property) and after him, his eldest son, Hakim Nasiruddin, was to be the next Mutawalli. After his son Hakim Nasiruddin, the Mutawalli would be chosen by lots from the families of Hakim Sahab's male issues. Thus, the succession of Mutawalli was fixed. Hakim Sahab did not retain any power to change the said line of succession of Mutawallis. The usufruct of the suit property was to be used by Hakim Sahab during his lifetime. The method of spending the profit from the clinic was also spelt out. But, we shall deal with this aspect later in the judgment at the appropriate place. The 1942 Wakf was not only registered, but was also published in the Official Gazette dated 23. 9. 1965 (Ex. 3 ).

(3.) THE respondent Nos. 1 and 2 filed their written statement and claimed that the appellant had gotten the 1966 wakf made from the Hakim Sahab by misrepresenting and by using undue influence over him. According to them, Hakim Sahab never wanted to create a wakf of the suit property in favor of the appellant. He only wanted to will the property in favor of the university. However, by drafting the 1966 wakfnama in English, by creating an impression upon him that only a will was being drafted, the appellant cleverly created a wakf in their own favour. THE respondent Nos. 1 and 2 further claimed that Hakim Sahab was not mentally and physically fit to understand and tenor of the document. Moreover, when the 1966 wakf was created, Hakim Sahab did not have access to anyone except the persons who came from the Aligarh Muslim University. Thus, they exercised undue influence over him. Hence, as the wakfnama was procured by misrepresentation and under undue influence, the 1966 wakf is void. THE respondent Nos. 1 and 2 further claimed that Hakim Sahab had repudiated the said 1966 wakf by sending a notice on 27. 8. 1968 (Ex. A/1) to the appellant. Moreover, afterwards, Hakim Sahab had executed a will in favour of the Respondent Nos. 1. THErefore, the respondent Nos. 1 had the right to occupy the suit property and to realize the rent from the other tenants. THE other respondents, namely respondent Nos. 3 to 10 have supported the case of respondent Nos. 1 and 2. THErefore, their stand before the learned trial Court is not being mentioned here.