MT RUQIA BEGAM Vs. LSURAJ MAL

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for a declaration that the property in dispute is not attachable and saleable in execution of a money decree as it is wakf property. The Courts below have held that the wakf in question is invalid and unenforceable.

(2.) On 8 January 1919, Haji Nabi Baksh executed a deed of waqf-alal-aulad. After reciting that he was very old, and there was no certainty of this transitory life, the mentioned that he had four children, one son and three daughters, and had some house-properties, and declared therefore by way of foresight and for the sake of the maintenance of the son and daughters aforesaid, I have in accordance with law, Act 6 of 1913, made a wakf-alal-aulad in favour of his son and the three daughters in accordance with the legal shares under the Mahomedan law," of the two houses. He provided that during his lifetime he would remain the mutawalli of the wakf property, and out of the income of the wakf property he would give proportionate shares to his son and daughters for their maintenance; that after his death his son should remain the muta-jwalli and his authority and powers would be like his own, and a chain of arrangement relating to the appointment of the mutawalli should continue along the line of the sons of the wakif, generation after generation, and that no stranger should have the right to be appointed a mutawalli. If at any time the mutawalli on account of his bad acts interfered with the income of the wakf property and did not give the proportionate share to any share-holder, the said share-holder could get another mutawalli appointed through the District Judge. He also provided that at no time any mutawalli should have the right to sell or mortgage the property made wakf of, and that it would be his duty to repair the endowed houses out of the income of the fund, and to distribute the surplus in proportionate shares to the beneficiaries. He described the deed as wakf-alal-aulad.

(3.) In the document there was no express suggestion anywhere that he was making a wakf-fi-sabilillah (in the way of God), or for the benefit of the poor, or for any other religious or charitable purpose. Neither the poor, nor any religious institution, nor any charities, were mentioned. The declared object was "by way of foresight and for the sake of the maintenance of the son and daughters." No doubt it was stated that the "wakf-alal-aulad was made in accordance with law, Act 6 of 1913;" but there was no indication as to what was to happen to the income if the line of the descendants became extinct. He provided that no stranger shall have the right to be appointed mutawalli." The wakif therefore took it for granted that for all time to come there would be his descendants in the line of his son, generation after generation, and so expressly confined the mutawalliship to his descendants. He also gave a right to a future share-holder in the profits, to apply to the District Judge for the appointment of another mutawalli if there was any failure to give the proportionate share to him. All these circumstances lead to only one conclusion that the wakif never contemplated that the line of his descendants would become extinct, and disliked the idea of any stranger becoming a mutawalli.