LAWS(PVC)-1941-1-71

MIRZA HIDAYAT BEG Vs. SETH BEHARI LAL

Decided On January 28, 1941
MIRZA HIDAYAT BEG Appellant
V/S
SETH BEHARI LAL Respondents

JUDGEMENT

(1.) On 16th-July 1922, Behari Lal, a Hindu, owner of a valuable estate mainly situated in the Muzaffarnagar District, hereinafter called the settlor, executed deed of wakf, hereinafter called the wakf or trust, by which he dedicated virtually his entire estate for purposes of national education and for founding a school to impart such education to be named after him as Behari Lal National School, Muzaffarnagar. Almost twelve years later on 12 January 1934, he executed another deed of declaration called by him Ailan-nama by which he cancelled the previous trust made by him. And having done so, on 18 May 1934, he raised an action in the Court of the first subordinate Judge of Saharanpur for a declaration that the instrument of trust dated 16 July 1922, is null and void and unenforceable in law and that the plaintiff is the owner of the property in dispute.

(2.) The defendants to this suit were the surviving trustees nominated under the trust, two other persons who questioned the settlor's right of cancelling the trust and five members of the public who maintained its validity. Under Order 1, Rule 8, Civil P.C., proceedings were taken to make the litigation a representative one. The plaintiff's case, shortly stated, is that the said wakf embodied a sham and fictitious transaction and assuming it to be genuine, the trusts created by it were void for vagueness, indefiniteness and uncertainty and were against public policy and "were not of a charitable nature. The trial Court found that the trust deed was duly executed but the trust created by it was void and unenforceable in law and it gave to the plaintiff the declaration claimed for. Against the said judgment and decree, some of the defendants have preferred this appeal. The deed of wakf is an elaborate document. In the preamble, the settlor expresses his desire to devote his property for charity and he regards national education as the best form of charity and dedicates his property for that purpose. He explains what his conception of national education is. Having done so he appoints a board of trustees consisting, of nine members, including himself, for management and administration of the trust. He then lays down the aims and objects of the trust or wakf which are the establishment of a school and a boarding house and founding of scholarships for foreign education. This is followed by a detailed scheme of management the noticeable features, of which are that the settlor was to remain the managing trustee for his life and after him his foster son Debi Sabai was to remain the managing trustee for life and both of them were to receive 1/3 of the nett income of the estate for their lives with a right of residence in a house subject of endowment. Provision was also made for the payment of Rs. 500 per mensem as allowances to certain ladies dependent upon him, for the payment of Rs. 100 per mensem for the upkeep of certain temples and for the payment of Rs. 26,800 for debts owing by the settlor. In the end there was a schedule specifying the property endowed which was situated in about fifty villages and also consisted of numerous houses in the districts of Muzaffarnagar, Meerut and Saharanpur and which yielded an annual income of over Rs. 50,000. (Their Lordships proceeded further to state as to how the settlor came to be possessed of the trust property, the circumstances under which the trust was executed and the subsequent acts and conduct of settlor. It is manifest that from its inception to the end not a penny was spent for the purposes of the trust and beyond execution and registration of the deed and mutation of names in Government papers-and change in the form of accounts of the estate and the ostensible management of the estate in the name of trust and holding of occasional meetings of the trustees in which no real business relating to trust was transacted, nothing wag done to promote or carry out the trust or its scheme.

(3.) There are two stories about this wakf. The plaintiff's story is that it was a mere device and a step-in-aid to ward off Nand Lal's suit. It was brought about as a counterblast to secure the popular sympathy and the sympathy of the Congress party against the influence of caste people who were working in favour of Nand Lal, and that there was no real intention on the part of the settlor to dedicate any property to any charity whatever. It was a mere paper transaction and a sham and fictitious transaction. The plaintiff further alleges that he had adopted this scheme and device at the suggestion and under the influence of his manager Mohammad Yahia and his standing counsel Ali Hasnain, both of whom were appointed co- trustees along with him and six others of Congress persuasion. The case of the defendants is, in which is included the case of Mohammad Yahia and Ali Hasnain, both of whom are defendants in the case and both of whom are witnesses for defence, that the settlor made the wakf out of a genuine desire for charity and they had no hand whatever in it and it was a free and spontaneous act of the settlor.