ABDUR RAFEY KHAN Vs. BANNI BEGAM

JUDGEMENT

(1.) In this case the plaintiff, Maulvi Muhammad Abdur Rafey Khan, is the first cousin of one Maulvi Abdul Wajid Khan, deceased, and sues to recover possession of the three-fourths share in the estate left by the deceased which would fall to him under Muharkmadan Law. The defendants are Musammat Banni Begam, widow of the deceased, and Yusuf Ali Khan, the designated mutawalli of a wakf said to have been created by Abdul Wajid Khan in his lifetime The suit has been decreed in respect of a few items of property with which we are not now concerned as they were not included in the alleged wakf; but the learned Subordinate Judge has dismissed the bulk of the plaintiff s claim upon a finding that the property concerned formed the subject of a valid wakf duly created by Maulvi Abdul Wajid Khan in his life-time. This finding is contested by the plaintiff before us in appeal. His contention is that Abdul Wajid Khan never did create, and never intended to create, any valid wakf, or at any rate that he never intended to create any wakf which should take effect in his own life-time. That is to say, we are asked to hold that, even if Abdul Wajid Khan did intend to make a real and substantial disposal of his property for religious and charitable purposes after his death, and even if he left behind him documents which would have the effect of carrying out that intention, his entire proceedings are vitiated by the fact that he was trying to evade the rule of Muhammadan Law restraining him from making, to the prejudice of his legal heirs, any testamentary disposition of his property affecting more than a one-third share of the same.

(2.) The evidence in the case is somewhat voluminous, and has been dealt with by the learned Subordinate Judge in an elaborate judgment, from the main conclusions of which we see no reason to dissent. The essential points* of the case, however, lie within a narrow compass. It is quite clear that the notion of disposing of his property by way of wakf had long been present to the mind of Abdul Wajid Khan. A copy of a decree, dated July 7th, 1887, by which certain litigation between this gentleman and his own father was settled in accordance with the terms of a compromise between the parties, has been put in evidence (pages 50 and 51 R.) and shows a definite intention to preserve the corpus of the family property intact, and to use it for the foundation of a wakf after Abdul Wajid Khan s death. It is proved that Abdul Wajid Khan was famous for his charitable disposition and the religious bias of his mind is shown by the fact that he three times made the pilgrimage to the Holy Places of Arabia. To such a man the idea of founding endowments for religious and charitable purposes would follow naturally upon an intention so to dispose of it after his death. We find that he actually executed four deeds of endowment. He began by taking a significant precaution. On August 31st, 1892, he obtained from his wife (the first defendant in the present suit) a formal relin-qaishment of her heavy claim for unpaid dower-debt, the lady in this document expressly states that she relinquishes her claim on the understanding that her husband intends to dedicate the property by way of wakf. On the following day, namely, September 1st, 1892, Abdul Wajid Khan executed the first of his wakf-namas. Much of the argument in this case, and much, of the judgment of the Court below, was occupied with the discussion of the question whether this document, had it stood alone, would or would not on the face of it have constituted a valid wakf. There can be no doubt that this deed purports to effect a present alienation of the corpus of the property concerned, with a dedication of the same to charitable or religious purposes. In so far it differs essentially from any testamentary disposition of property, the alienation being irrevocable and taking effect at once. On the other hand, Abdul Wajid Khan in this document appoints himself "mutawalli" and leaves himself in absolute and unfettered control of the income of the property, bound by nothing except by his own injunctions that the money is to be spent for charitable and religious objects. Moreover, he secures the succession to this office of sole trustee for his wife, in the event of her surviving him, and he makes similar provision for his children and their descendants, in the doubtful event (which in fact never occurred) of any children being born to him after the execution of the deed. It is sufficient to say that the validity of this document, if it stood alone, would involve questions of law open to considerable discussion, but questions as to which we find it unnecessary to pronounce any opinion in view of the facts of the case as they stand.

(3.) On October 2nd, 1893, Abdul Wajid Khan supplemented his first deed of endowment by another, in which he simply added something to the value of the endowment. On April 12th, 1899, he availed himself of the powers of revision and control which he had reserved to himself by his first deed, in order specifically to devote a portion of his landed property to the endowment of a certain school at Lucknow. It has finally been admitted by the plaintiff that this deed at any rate he is not in a position to contest; it fulfils every possible condition of a valid wakf. It may be noted in passing that it involves property of the value of Rs. 10,000. Finally, on October 13th, 1906, Abdul Wajid Khan, executed a fourth deed of endowment, and it is on this deed that the case really turns. It was evidently drawn up under careful legal advice. The preamble contains an implied reference to the ruling of this Court in Muhammad Aziz-ud-din Ahmad Khan v. The Legal Remembrancer to Government, North Western Provinces and Oudh 15 A. 321, and to certain more recent decisions of their Lordships of the Privy Council, as having thrown some doubt on the validity of the two wakf-namas of September 1st, 1892, and October 2nd, 1893. No doubt the writer means that some question might be raised as to whether these documents had in fact been followed by any real and bona fide transfer of the property concerned to the nominated mutawalli (i.e., to Abdul Wajid Khan himself as mutwalli), also that difficulties might arise regarding the possible reservation of a series of life-interests under the terms of the first deed. Therefore, while protesting that he personally regards these earlier deeds as valid under the Hanafi law by which he is bound, and that he has been acting upon the terms of the deeds up to this time", he proceeds to execute this fresh wakfnama of October 13th, 1906, avowedly with the object of removing all difficulties and making a dedication of his property which shall be beyond question and dispute. Now, it was admitted in argument before us that this appeal must fail if we are prepared to maintain this last deed. The only questions for determination are whether this deed on the face of it constitutes a good and valid wakf under Muhammadan Law, whether it was executed by Abdul Wajid Khan in good faith with intent that it should operate as such, and whether the disposition of property made therein was actually carried into effect. It is not even necessary for us to consider what would be the legal consequences if we answered either the second or the third of these questions in the negative, because it seems clear to us on the evidence that there must be a finding against the appellant on each point.