SHER ALI Vs. HAMID ALI

JUDGEMENT

(1.) These are two appeals which may be conveniently disposed of in one judgment. First with regard to F.A. No. 73 of 1937. This appeal is by the defendant in a suit in which the plaintiffs claim possession of a certain share in property which at one time belonged to one Syed Madad Ali. Syed Madad Ali died on 24th December 1894. Shortly prior to his death, on 7 May 1893 he made a wakf of the property in which the plaintiffs claim a share. The plaintiffs averred that the wakf deed was invalid inasmuch as under the deed the wakif had reserved for himself a certain benefit in the shape of a maintenance allowance of Rs. 420 a year not as mutwalli, but in his private capacity as owner of the property. The defence to the suit is that the wakf deed of 7 May 1893 was a valid wakf. It was contended that the allowance which the wakif reserved for himself represented his salary as mautwalli. It was further pleaded that the plaintiffs claim to possession of a share in the property in suit was barred by limitation. Shortly after the death of Syed Madad Ali there was a contest in the Revenue Court on the question of mutation. It was there held that the wakf deed was a valid wakf. Thereafter apparently the plaintiffs who are amongst the heirs of Syed Madad Ali were content to allow defendant 1, Syed Sher Ali, a son of the wakif to manage the property and to disburse the income thereof in accordance with the provisions of the wakf. In these circumstances it was maintained for the defendant that the plaintiffs claim for possession was barred.

(2.) Two questions arise for consideration in this appeal. First as to the validity of the wakf deed and secondly as to whether the plaintiffs claim is now barred by limitation. It is abundantly plain from the terms of the wakf deed that Syed Madad Ali reserved for himself an annual maintenance allowance out of the property of which he purported to make a wakf. This maintenance allowance cannot be taken to have been intended to be his salary as mutwalli. It is true that he himself was the first mutwalli but under the terms of the deed he reserved for himself the right to appoint another mutwalli. He did in fact before his death appoint defendant 1, Syed Sher Ali, as mutwalli and under the terms of the wakf deed despite the fact that Syed Madad Ali had relinquished office as mutwalli he was clearly entitled to draw maintenance allowance of Rs. 420 a year.

(3.) It is well settled that a wakf deed under which an interest is reserved for the wakif is invalid in its entirety. In this connexion reference may be made to the case in Abadi Begum V/s. Kama Zainab . In that case the Privy Council considered the effect of the reservation by the wakif in the interest of the estate of which he purported to make a wakf; and they clearly approved of the principle that it is a condition of the validity of the wakf that the wakif should not reserve any interest in the endowed property for himself and that if he did, the wakf was bad not merely in respect of the reservation but in its entirety.