AMIRUDDIN Vs. MUZAFFAR-UL-HASAN

JUDGEMENT

(1.) The question for consideration in thin appeal is whether a certain deed of waqf, purporting to have been executed by Musammat Ishrat Begam, on the 10th August 1910, wag valid and enforceable. The lady died on the 30 of August 1910. The allegation of the plaintiff was that the deed of waqf was obtained from the lady at a time when she was unwell and unable to form an independent judgment, In fact, it is suggested that she was not then in her proper senses and did not understand what she was doing. The Courts below found that the lady understood what she was doing, bat the deed of waqf was invalid inasmush as there was no real intention to make a dedication for religious or charitable purposes.

(2.) The deed of waqf provides that the lady shall be the first mutawalli of the property dedicated and that she shall have power to apply the income of the property dedicated to her own nee as long as she was alive, and, if there was a surplus, to apply the same to the purposes specified in any manner she liked. It further states that she shall also have the power to sell or mortgage the property daring her lifetime. It then goes on to say that after her death her sister, Musammat Hashmat Begam, and two other persons specified therein, who are the present defendants appellants, shall at as matawallis and apply the income to the said purposes. The purposes specified were the maintenance of an Arabia School foe teaching theology and the expenses connected with a mosque situated in her native village. The Trial Court held that the deed of waqf bad bean acted upon after the death of the lady : but the lower Appellate Court found that only a part of the income was applied by her successors-in-office to charitable purposes.

(3.) It is obvious from the terms of the deed that the plain intention of the executant was to retain an absolute power over the property said to have been dedicated. The essential requisite of a valid waqf is a permanent dedication of any property by the donor substantially for religious and charitable purposes. The dedicatory should completely divest himself of the ownership of the appropriated property from the time the dedication takes effect. There is no such thing here. The dedicator retained for herself a full power to sell and transfer the property during her lifetime. Such a condition derogates from the nature of the grant, and, as pointed out in Fatmabibi V/s. Advocate-General of Bombay 6 B. 42 : 6 Ind. Jar. 253 : 3 Ind. Dec. (N.S.) 485, it is inconsistent with a valid waqf, which must be certain as to the property appropriated and, at the same time, unconditional, and not subject to an option. There might be a reservation of the annual profits of the property for the benefit of the donor for bar life; but a provision, empowering the donor to sell and to appropriate the proceeds thereof for his or her own benefit, would make the settlement invalid. " According to the two disciples ", says Bailie, " waqf is the detention of a thing in the implied ownership of Almighty God in such a manner that its profits may revert; to or be applied for the benefit of mankind, and the appropriation is obligatory, so that the thing appropriated can neither be sold, nor given, nor inherited." (Baillie's Muhammadan Law, Volume I, page 558). In Narmul Haq V/s. Mohammad Subhan-ullah 48 Ind. Cas. 94 : 16 A.L.J. 341 : 41 A.1 one of the necessary constituents of a valid waqf was described to be a substantial and effective dedication of the property to religious or charitable uses, and a condition whereby the donor reserved to himself a power of spending the profits of the properly at his own discretion and an exclusive right to transfer the corpus at any time he liked, was considered to be inconsistent with a valid dedication. The waqf in the present instance cannot, therefore, be upheld.