Abdulla Beary v. Alikunhi Beary — 1957 DIGILAW 155 (KER)

Judgment :- 1. This is an appeal by the plaintiff against the dismissal of the suit O. S.295/50 by the learned Subordinate Judge of South Kanara. 2. The suit was for a declaration that the plaint properties are wakf properties dedicated by his grandfather Mohammad Beary and for recovery of the said properties and for removing the first defendant from the Muttuwalli-ship and for certain other consequential reliefs. 3. First defendant is the son of Mohammad Beary and father of the plaintiff. Defendants 2 and 3 are the sisters of the plaintiff and the 5th defendant is his mother. The case of the plaintiff was that his grand-father Mohammad Beary, a Hanafi Musalman, created a Wakf in respect of the suit properties according to Mohammadan Law and also executed a Registered Wakf deed on 8-3-1915. According to the plaintiff, his grand-father was to be in management during the lifetime and that after his grand-father, his father, the first defendant and the latter's children are to manage the properties and perform the charities mentioned therein, without any powers of alienation. The plaintiff further alleged that he came to know that his grand-father and his father have effected several alienations of the property contrary to the Wakf deed and in consequence, the 4th defendant is in possession of item No.1 and the 5th defendant is in possession of item No. 2. He contended that the alienations are illegal and that inasmuch as the 1st defendant has made himself unfit to be the Muttuwalli in view of His several acts mentioned 'above, he ought to be removed from Trusteeship and possession of the properties are to be recovered from the 4th and 5th defendants with costs and mesne profits. 4. The 2nd defendant who is the sister of the plaintiff supported the case of the plaintiff. The written statement of the 2nd defendant also gives the several alienations and mortgages effected by Mohammad Beary. 5. The 4th defendant who is in possession of item 1 of the plaint-schedule contended inter alia that Mohammad Beary was not a Hanafi Musalman and that the Wakf deed dated 8-3-1915 is invalid under the Musalman Wakf Validating Act, 1913. He also contended that there was a prior decision in O. S.203/1932, District Munsiff's Court, Kasaragod, regarding the Wakf and that the said decision operates as- res judicata in these proceedings. He also contended that there was a prior decision in O. S.203/1932, District Munsiff's Court, Kasaragod, regarding the Wakf and that the said decision operates as- res judicata in these proceedings. He further contended that in a suit instituted against the 1st defendant and another in O.S. 592/1932, District Munsiff's Court, Kasaragod on a mortgage, properties had been sold and ultimately purchased by him, on 19-3-1934 in court action. He also pleads that from 1934 he has been in possession,of item 1 and that, therefore, the plaintiff's suit is barred by adverse possession. 6. The learned Subordinate Judge has held that the prior decision in O. S.203/1932 District Munsiff's Court, Kasaragod operates as res judicata in respect of the points covered by issues 2 and 3 in the present suit. He also considered these two issues independently, and came to the conclusion that the Wakf deed dated 8-3-1915 is not a valid transaction. 7. On the question whether the Wakif Mahammad Beary was a Musalman of the Hanafi sect, the learned judge held that he was a Musalman of the Shafei sect and that he was not a Hanafi Musalman. 8. As mentioned earlier, notwithstanding the fact that he had already held that the question of the validity of the Wakf deed is already covered by the prior decision in O. S.203/1932, the learned judge nevertheless considered those questions again on the merits. He held that the provision made in the said deed by Mahammad Beary for his own maintenance and support during his lifetime was invalid as being opposed to the Mussalman Wakf Validating Act, 1913, as the Wakif was a non-Hanafi. He also held that another essential requirement under the Act of an ultimate benefit for the poor or for any other purpose recognised by Mussalman Law as religious, pious or charitable, was also lacking in the document. He held on a construction of the document that there was no such ultimate benefit reserved therein. He even held that the gift itself is so illusory and came to the conclusion that the document has been executed by Mahammad Beary to benefit himself and his family. On this reasoning he held that the Wakf deed dated 8-3-1915 is not a valid document and that it did not come into effect. 9. He even held that the gift itself is so illusory and came to the conclusion that the document has been executed by Mahammad Beary to benefit himself and his family. On this reasoning he held that the Wakf deed dated 8-3-1915 is not a valid document and that it did not come into effect. 9. The learned judge also held that the 4th defendant has perfected his title by adverse possession and as such, the suit as against him is barred by limitation. In the end, the learned judge dismissed the suit with costs of the contesting 4th defendant. The plaintiff has come up to this Court on appeal. The appellant's learned counsel Mr. T.S. Krishnamurthy Ayyar attacks all the findings of the trial Court. In main, he raises three contentions: (1) that Mahammad Beary was a Hanafi and that the Wakf document dated 8-3-1915 and marked as Ext. Al in the case is a perfectly legal and valid document conforming to the provisions of the Mussalman Wakf Validating Act: (2) that the decision in 0. S.203/1932, District Munsiff's Court, Kasaragod does not operate as res judicata in these proceedings; and (3) that the suit is not barred by limitation. On the other hand Mr. D. A. Krishna Variar, the learned counsel for the contesting respondent (4th defendant) supports the findings of the learned judge on all points. . 10. Taking the first contention of Mr. Krishnamurthy Ayyar, the question whether Mahammad Beary was a Hanafi Mussalman as contended by him or a Shafei as contended by Mr. Krishna Varier assumes importance, as the validity of Ext. Al has to be considered according to S.3 of the Mussalman Wakf Validating Act 1913 (Act VI of 1913). S.2 Clause.2 of the said Act defines Hanafi Mussalman as follows : "a follower of the Mussalman faith who conforms to the tenets and doctrines of the Hanafi school of Mussalman law".. Krishna Varier assumes importance, as the validity of Ext. Al has to be considered according to S.3 of the Mussalman Wakf Validating Act 1913 (Act VI of 1913). S.2 Clause.2 of the said Act defines Hanafi Mussalman as follows : "a follower of the Mussalman faith who conforms to the tenets and doctrines of the Hanafi school of Mussalman law".. S. 3 of the said Act provides as follows: "It shall be lawful for any person professing the Mussalman faith to create a Wakf which in all other respects is in accordance with the provisions of Mussalman Law, for the following among other purposes: (a) for the maintenance and support wholly or partially of his family, children or descendants, and (b) where the person creating a wakf is a Hanafi Mussalman, also for his own maintenance and support during his life-time or for the payment of his debts out of the rents and profits of the property dedicated. Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious„ pious or charitable purpose of a permanent character". It will be seen from S.3 that in the case of all Muslims, subject to the proviso, there can be a wakf for the maintenance and support of his family, children or descendants. But in cases-where the Wakif is a Hanafi Mussalman, the deed can provide also, subject to the proviso, for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated. It is only a Hanafi Mussalam who is entitled under the Act to provide for his own maintenance and support or for the payment of his debts. It is agreed by learned counsel on both sides that in the case of every wakf, under the Act, the ultimate benefit must be expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character. No doubt S.4 of the said Act contemplates the reservation for the poor or other religious etc. purposes being postponed until the extinction of the family, children or descendants of the person creating the wakf. 11. Coming to Ext. No doubt S.4 of the said Act contemplates the reservation for the poor or other religious etc. purposes being postponed until the extinction of the family, children or descendants of the person creating the wakf. 11. Coming to Ext. Al, the wakf deed dated 8-3-1915 executed by Mahammad Beary, it describes itself as a wakf Dastawaju, and is in favour of his son, Ali Kunhi, the first defendant herein and father of the plaintiff and defendants. 2 and 3. The material clauses in the document relate to the wakif continuing in possession as Adaltedar till his lifetime and giving Ganjee charity every year in the month of Simha at the rate of three Mudies of rice and -the-balance income being realised and, ultilised by the wakif for his own use as be pleases. After his death, his son the first defendant becomes fully entitled to all the properties-mentioned therein to be enjoyed by him and also to give Ganjee charity by giving three Mudies of rice annually and the remaining income to be utilised by the first defendant. It also recites that similar rights and obligations will devolve upon the children of the first defendant and their descendants. The document also states that neither the wakif nor the first defendant nor his children or descendants shall have any manner of right to effect any alienation such as mortgage, sale etc. The properties are stated to be worth about Rs. 2000/-, Thus it will be seen under Ex-Al, the Wakif has provided for his own maintenance and support during his lifetime. We are not at this stage considering the question as to whether there has been an ultimate reservation of a benefit as is necessary under the proviso to S.3 of the Act. The provision far the maintenance and support of a wakif during Ids lifetime is as mentioned above, available under S.3 clause (b) of the Act only if the wakif is a Hanafi Mussalman and in this case, the said provision will be valid only if the Wakif Mahammad Beary is a Hanafi Mussalman. 12. In the wakf deed Ext. Al, Mahammad Beary has not described himself as a Hanafi Mussalman. 12. In the wakf deed Ext. Al, Mahammad Beary has not described himself as a Hanafi Mussalman. From the judgment of the District Munsiff, Kasaragod in O.S. 203/1932, it will be seen that Mahammed Beary was the first defendant and in that suit the wakf deed and certain alienations made by Mahammad Beary were being challenged. In Para.8 of the judgment, (Ex-B2), in the suit, the learned District Munsiff has observed as follows: "Where a person creating a wakf is a Hanafi Mussalman it is lawful for him to create a wakf for his own maintenance and support during his lifetime; in the present case it is not proved that the first defendant is a Hanafi; there is no evidence at all to what sect he; belongs". Mahammad Beary, the 1st defendant therein was represented by counsel and though he was contesting the suit and claiming a right under the wakf deed to be in possession during his lifetime, did not adduce any evidence on this very material point. 13. In the present plaint, the plaintiff alleges in Para.3 that his grand-father Mahammad Beary was a Hanafi Mussalman. The second defendant who supported the plaintiff also stated in Para.1 of his own written statement that Mahammad Beary was a Hanafi Mussalman. But tfiPcontesting 4th defendant denied that Mahammad Beary was a Hanafi Mussalman. It is stated in Wilson,' Anglo Mohamrnadan Law, 6th Edition at page 418 that along the south-west coast of India the Shafei school of Muslims have always predominated. It is also stated by the learned author that the doctrines of Shafei have made great progress among Indian Mussalmans generally and that his followers are now to be found among all ranks of society. The evidence of the plaintiff as Pw.1 and that of Pw. 3 who claims to know the family of the plaintiff for about 10 years has not been accepted by the learned Subordinate Judge. In fact, Pw. 3 does not even in terms refer to the wakif being a Hanafi. The evidence of the 4th defendant as Dw.1 and also the evidence of Dws. 2 & 3 that Mahammad Beary and the plaintiff were all Shafeis and not Hanafis has been accepted by the learned Judge. Further, in order to have disinterested evidence on this point, the court has examined a Maulavi as C. w. No. 1. The evidence of the 4th defendant as Dw.1 and also the evidence of Dws. 2 & 3 that Mahammad Beary and the plaintiff were all Shafeis and not Hanafis has been accepted by the learned Judge. Further, in order to have disinterested evidence on this point, the court has examined a Maulavi as C. w. No. 1. It is further seen that this gentleman was examined as a court witness at the request of both parties. He says that Cw.1 categorically stated that to his knowledge Mahammad Beary and the plaintiff were Shafeis and not Hanafis. On the evidence of Dw. 2 and in particular of Cw.1 the court witness, the learned judge has come to the conclusion that Mahammad Beary was a Shafei and not a Hanafi. In fact, it is also observed in Para.19 of the judgment "it is not denied that a Beary of South Kanara is almost always a Shafei and not a Hanafi". In fact, the learned counsel Mr. Krishnamurthy Ayyar has not been able to controvert the statement before us. Even apart from this circumstance, we are satisfied on the evidence that the finding of the learned Judge that .Mahammad Beary was a Shafei is correct. 14. But Mr. Krishnamurthy Ayyar contended that such a finding will not, really affect his contention in law. His argument was that the great majority of Muslims in India being Sunnis, the presumption will be that Mahammad Beary is a Sunni unless it is shown he belongs to the Shiah sect. He further followed up this contention by arguing that as most Sunnis are Hanafis the presumption is that a Sunni is governed by Hanafi law. By this process of reasoning the learned counsel wanted us to hold that Mahammad Beary must be presumed to be a Sunni governed by Hanafi law, and if so, the wakf deed, Ex-A1 is valid under the Act. In support of his contention about the presumptions above stated he relied upon the statements of the learned author Mr. Mulla on principles of Mohamrnadan law. In Chap.3 the learned author states the presumptions mentioned by Mr. Krishnamurthy Ayyar. But it will also be seen that the learned author states in the said chapter that Sunnis are divided into 4 sub-sects namely the Hanafis, the Maliks, the Shafeis and the Hanbalis. This shows that Hanafis and- Shafeis are two different sub-sects of Sunnis. In Chap.3 the learned author states the presumptions mentioned by Mr. Krishnamurthy Ayyar. But it will also be seen that the learned author states in the said chapter that Sunnis are divided into 4 sub-sects namely the Hanafis, the Maliks, the Shafeis and the Hanbalis. This shows that Hanafis and- Shafeis are two different sub-sects of Sunnis. The Act itself clearly mentions only Hanafi Mussalman and Clause (d) of S.3 deals only with a wakf created by a Hanafi Mussalman. The learned counsel also relied upon the decision of the Bombay High Court in Akbarally v. Mahomedally (Tyabji, J) (A. I. R.1932 Bom. 356), Bafatun v. Bilaiti Khanum (I. L. R.30 Cal. 683), Mt. Bibi Kubra V. Jainandan Prassed (Jamuar J.,) A. I. R.1955 fat. 270) and Mossa Seethi v. Mariyakutty (Kumara Pillai, J.) (1954 K. L. T. 249). It is no doubt true that these decisions lay down that as the great majority of Muslims in India follow the Hanafi school of Sunni law, the courts presume that Muslims in India follow the Hanafi law unless the contrary is alleged' and' proved and that the burden of proof lies on him who asserts otherwise. 15. In this case it is not necessary to rely upon any such presumptions for coming to a conclusion. The parties have joined issue in this case on this point and let in evidence one way or the other. The evidence on behalf of the defendants, supported as it is by the court witness C.W.1 has been accepted by the trial Court and we also unhesitatingly accept that evidence. Therefore, the argument of the learned counsel based off these presumptions, do not avail him and as such, has to be rejected. 16. On our finding that the Wakif, Mahammad Beary, was a Shafei, and not a Hanafi Mussalman, it follows that the wakf deed Ex-Al is opposed to b. 3 clause (b) of Central Act VI of 1913. 17. As mentioned earlier, the learned counsel on both sides agreed that the proviso in S.3 applies to both clauses (a) and (b) therein. Therefore, even if the document is valid under S.3 clause (b), still, in order to be a valid wakf the ultimate benefit must be expressly or impliedly reserved for the poor etc., as stated in the proviso. As mentioned earlier, the learned counsel on both sides agreed that the proviso in S.3 applies to both clauses (a) and (b) therein. Therefore, even if the document is valid under S.3 clause (b), still, in order to be a valid wakf the ultimate benefit must be expressly or impliedly reserved for the poor etc., as stated in the proviso. In the document there is no express provision as to what is to happen to the entire properties and their income if there is no descendant existing. It is not even stated in the document as to what it is the type of charity which will ultimately be benefitted. Even the provision made for giving of three Mudies of rice for Ganjee seems to be very disproportionately low compared to the entire income of the properties comprised in Ex-Al. 18. It is contended by Mr. Krishnamurthy Ayyar that the use of the word wakf Dastavaju in the document should be understood to mean that there is an ultimate benefit to charity. We cannot accept this contention. In Tahiruddin Ahmad v. Masihuddin Ahmad. (1.1, K.60 Cal. 901) their Lordships Rankin, Chief Justice and Pearson, J. held that after the passing of the Central Act VI of 1913 an intention of ultimate reservation to the poor cannot be inferred from the mere use of the word "wakf". The ultimate gift to religious charities must be implied from the terms of the document and is not to be implied from the mere fact that the settlor was purporting to make a wakf. Their Lordships also held that it was not possible on the terms of that document to infer that on the failure of the heirs or descendants the income was to be given to the poor. We may also refer to the decision of the Allahabad High Court reported in Irfan Ali and others v. Official Receiver Agra and others (T. L. R.52 Allahabad 748). Their Lordships Mr. Justice Mukherji and Mr. Justice Bennet held that where a wakf contains no such reservation as mentioned in the proviso to S.3 of Act VI of 1913, the mere use of the word wakf cannot, in itself be regarded as connoting an implied reservation of ultimate benefit for the poor. Their Lordships also observed that the word wakf has been expressly used in S.3 and yet the proviso has been added to it. Their Lordships also observed that the word wakf has been expressly used in S.3 and yet the proviso has been added to it. We are in respectful agreement with the decisions in Tahiruddin Ahmad v. Mesihuddin Ahamad (I. L. R.60 Cal. 901) and Irfan Ali and others v. Official Receiver, Agra and others (I. L. R.52 Allahabad p. 748) and applying those tests to the document before us namely Ext. Al we are of opinion that there is no ultimate benefit reserved in this document for the poor or for any other purpose recognised by Mussalman law as religious, pious or charitable purpose of a permanent character. We are also of opinion, that the charity mentioned therein is very illusory and unsubstantial compared to the value of the properties comprised in Ex-Al. The conclusion is irresistible that Mahammad Beary executed the Ex-Al merely to benefit himself and his family under the cloak of creating a wakf. 19. For the reasons stated above, we are of opinion that Ex-Al is opposed to the provisions of the Mussalman Wakf Validating Act 1913, and it does not create a valid and legal wakf under the Act. On this it follows that the several alienations made by Mahammad Beary and the first defendant cannot be tested by the applications of the principles applicable to a trustee or a muttuwalli by virtue of Ex-Al. The plaintiff cannot claim to get any rights under Ex-Al nor can he claim any relief on the basis of Ex-Al. 20. Though this finding is enough to dispose of the appeal and to confirm the decree of the Trial Court, still we will dispose of the other two contentions of Mr. Krishnamurthy Ayyar. 21. The second contention of Mr. Krishnamurty Ayyar relates to the decision in O. S. No. 203/1932, District Munsiff's Court, Kasaragod being res judicata in the present proceedings. Though this finding is enough to dispose of the appeal and to confirm the decree of the Trial Court, still we will dispose of the other two contentions of Mr. Krishnamurthy Ayyar. 21. The second contention of Mr. Krishnamurty Ayyar relates to the decision in O. S. No. 203/1932, District Munsiff's Court, Kasaragod being res judicata in the present proceedings. Though the decision in the said suit had been held by the Trial Court to be res judicata so far as issues 2 and 3 in the present suit are concerned, nevertheless, the learned judge has also independently considered issues 2 and 3 in this suit apart from the bar of res judicata, in Para.20 and 21 of his judgment and come to the conclusion that the document Ex-Al is opposed to the provisions of Central Act VI of 1913 and that the wakf deed is not a valid transaction and has not come into effect. These findings have been accepted by us in the earlier portion of this judgment. As the matter has been considered independently both by the Trial Court and by us, the question whether the decision in O. S.203 of 1932 is res judicata or not becomes absolutely academic and serves no purpose. Therefore, we are not pursuing this point any further. 22. The third and last contention of Mr. Krishnamurthy Ayyar relates to the finding of the lower court that the suit is barred by limitation. The contention of Mr. Krishnamurthy Ayyar is that under Ex-Al Mahammad Beary has become a Muttuwalli or a trustee. Mahammad Beary executes a sale deed under Ex-BI dated 1-3-1918 to the 1st defendant regarding the properties comprised in Ex-Al. The first defendant in turn, executes mortgages and decrees are obtained on those mortgages. Ultimately in court sale the 4th defendant purchases item 1 and gets possession of the properties on 28-9-1934. Mahammad Beary himself" died only in 1949 and the present suit has been filed on 27-9-1950. On these facts the learned counsel contends that the alienations of Mahammad Beary and the first defendant should be considered as having been made by trustees having beneficial interest in the properties and as such, the starting point of limitation will be only from the date of death of the trustee, in this case of Mahammad Beary in 1949. On these facts the learned counsel contends that the alienations of Mahammad Beary and the first defendant should be considered as having been made by trustees having beneficial interest in the properties and as such, the starting point of limitation will be only from the date of death of the trustee, in this case of Mahammad Beary in 1949. He relies upon the well-known decision of the Privy Council in Vidia v. Baluswami (I. L. R.44 Mad. 831) and also on certain rulings of the Madras High Court. This contention is met by Mr. Krishna Varier, the learned counsel for the 4th defendant that Art.12 of the Limitation Act applies and that the suit is barred by limitation. He also relied upon the decision of the Privy Council in Shahib Ganj v. S. G. P. Committee (1940 P. C. P. 116) holding that wakf property is subject to the law of limitation. 23. But we have already found that the wakf deed is not valid in law. If the wakf deed goes, the claim to trusteeship also falls to the ground. In this view, the alienations cannot be considered to have been made by a trustee having a beneficial interest in the properties. The properties have been sold by Mahammad Beary in his own right to his son, the first defendant who also, in his own right, has in turn, sold or mortgaged the properties and the 4th defendant has been in exclusive possession of the properties as purchaser in court, sale from 1934 and as such, his possession must be considered to do adverse from the time of his purchase and obtaining possession. In this view, the suit claim is barred by limitation. 24. In the result, the judgment and decree of the Lower Court are confirmed and this appeal dismissed with costs.