JUDGMENT 1996 Supp(9) SCR 348 The Order of the Court is as follows
1. Leave granted in SLP (C) No. 1638 of 1981
2. This appeal by special leave arises from the judgment of the Division Bench of the Allahabad High Court, made on 14-3-1980 in First Appeals Nos. 399 of 1962 and 28 of 1964. The Nawab Sir Mohammad Yusuf of Jaunpur had executed Waqfnama on 5-4-1956 and he died on 3-5-1956. The appellant-Zubeda Begum, his widow filed the suit for cancellation of the Waqfnama and for possession of the properties with a declaration that she is entitled to the compensation to the extent of 1/4th share of the properties given in the list. The trial court partly decreed the suit. On appeal, the High Court dismissed the suit. Thus, this appeal by special leave
3. The main controversy is with regard to the validity of the Waqfnama created by Nawab Sir Mohd. Yusuf which reads as under "I, Nawab Mohammad Yusuf, son of Nawab Abdul Majid Saheb, resident of Mohalla Alam, Post Office Sadar, Jaunpur City Whereas I am a follower of Hanfi Sunnet Ul Jammat of Islam and whereas it is obligatory on every person that he should make arrangement by which charity and alms may continue to be given and dependant may also be looked after. The properties mentioned are worth Rs. 2, 44, 679 which are my exclusive ownership the detail of which has been given in Schedules As, Ba, Da and Sa The executant has no issue either male or female. I have got a nephew (My sister's son) Syed Shah Mohammad Hashmi, B.A., LL.B., Vakil, Allahabad who is the son of Moulvi Nazir Shah Hashmi. He is very promising, able and virtuous by nature. I have brought him up as if he was my own son The cherished desire of me is that (1) Syed Shah Mohammad Hashmi aforesaid as well as (2) descendants of my wife and (3) other poor penniless people should be benefited by this Waqf. Therefore, after considering pros and cons of this document without any coercion or undue influence from anyone in a state of my full senses and wisdom and with my own free will, I hereby create a waqf of the properties in pursuance of Act 6 of 1913. I have given up my proprietary possession over the properties and have retaken them as the Mutawalli of the Waqf from this day onwards. I have no proprietary interest left in the properties and every bit of the property has become vested in God for the benefit of the persons mentioned above. These properties have become Waqf property for all times to come. This document will be binding on everybody and the name of the property hereafter will be called 'Waqf-e-Yusufia'And all the proceedings against the Waqf estate will be taken under the name of 'Waqf-e-Yusufia'. I settle the line of Tauliat as follows (1) That up to my lifetime, I, the executant will be the Mutawalli of the Waqf properties and perform and take all proceedings vis-a-vis the properties in the capacity of my becoming the Mutawalli. No one will have the right to question my doings. The executant will have the right on the Waqf properties, whether they are planted trees, groves, groves' cultivation and the groves of the fruit-bearing mango trees. If and when it is necessary for the preservation of the Waqf properties, I will have the right for sale, lease or mortgage for the benefit of the Waqf. I will also have a right on the abolition of the Zamindari to get the compensation as Mutawalli of the Waqf. These rights will continue till I am alive and when I am no more, the succeeding Mutawalli will have the same rights in pursuance of this Waqf Deed (2) That after the lifetime of the executant Syed Shah Ahmed Hashmi would be the Mutawalli of this estate. And after Syed Shah Ahmed Hashmi, his eldest son and after him the eldest son of his eldest son, generation after generation will continue in perpetuity as Mutawalli of the Waqf estate (3) If per chance the eldest son of Syed Shah Ahmed Hashmi does not remain alive and dies without any issue; in that contingency, the Tauliat will go to the branch of the second son of Syed Shah Ahmed Hashmi and the Mutawalliship will continue till then in perpetuity (4) That it is imperative that the Mutawalli of this Waqf will only be such a person who is virtuous, honest, able and capable to manage the properties. He should also follow Hanfi Tenets of the Mohammedan law. If the main (sic male) line of Syed Shah Ahmed Hashmi becomes extinct, then the Mutawalliship will go to the female line of Syed Shah Ahmed Hashmi(6) In case, the line of Moulvi Haider Hussain who is the grandfather of the executant also becomes extinct and no one of his descendants is alive, then all the Muslim residents of Jaunpur will be entitled to elect a Muslim who is honest, virtuous and belongs to the Sunni Hanfi sect to get appointed Mutawalli through court, such a person will have to follow the directions given in this deed (7) That every person who is a Mutawalli will be entitled to nominate his successor (8) The executant will be utilising usufruct and income of the property till he is alive for self and for the needs of my wife Smt. Zubeda Khatun as well as for the benefit of Syed Shah Ahmed Hashmi (9) That on the death of the executant, Government demands, Revenue, taxes, repair of houses and other necessary expenses including litigation expenses, etc., a sum of Rs. 200 will be paid to my wife Zubeda Khatun till her lifetime and the remaining sum will be distributed among the legal heirs of Shah Ahmed Hashmi (10) That the amount which is payable to my wife on her death will be paid to the heirs of Syed Shah Ahmed Hashmi (11) That if all the descendants of Syed Shah Ahmed Hashmi become extinct, then the income from the Waqf properties will be distributed to the descendants of my grandfather Moulvi Haider Hussain proportionately according to the Hanfi School (12) When all the class of persons mentioned above are no more, the entire income will be given to the poor beggars and destitute Muslims. It will also be spent over Qurankhani and virtuous acts for the benefit of the Muslims at large I have, therefore, this day executed Waqfnama so that it may be referred to if and when an occasion arises 5th April, 1956."
4. Shri Dholakia, learned Senior Counsel appearing for the appellant, contends that the reading of the Waqfnama does indicate that it is not a Waqfnama but it was executed to benefit Syed Shah Ahmed Hashmi (for short Hashmi) who had played greater role in having the Waqfnama executed for his benefit by bringing about undue influence on the Nawab. Therefore, the Waqfnama is void under law by reason of Section 16 of the Contract Act. He read to us the evidence discussed by the trial court regarding the mental and physical condition of Nawab Mohd. Yusuf and contends that the High Court has not considered this evidence, in particular medical evidence of PW 11 and the doctor examined on behalf of the respondent. Therefore, it amounts to excluding the relevant evidence which was taken into consideration by the trial court vitiating the finding recorded by the appellate court. We find no force in the contention. It is seen that the appellate court has considered the evidence elaborately and came to the conclusion that Nawab Mohd. Yusuf was in a mentally fit condition to execute the Waqfnama. He was a Barrister-at-Law and an MLA. The finding recorded by the High Court is as follows "In the instant case a perusal of para 9 along with various other allegations made in the plaint with regard to the physical and mental condition of the Nawab shows that according to the plaintiff, at the time when the waqf deed is said to have been executed, no relation, other than Khursheed Ahmed Hashmi, was present near the Nawab. The nature of undue influence said to have been disclosed in the plaint was that Syed Khursheed Ahmed Hashmi stood in fiduciary relationship and was in a position to dominate the will of the Nawab whose mental capacity has been impaired. He utilised that position in obtaining the waqf deed and thus obtained for himself the entire benefit in respect of the property belonging to the Nawab. We have, therefore, to see if there is any reliable evidence on the record to establish the following
1. That the Nawab was mentally weak and his mental capacity had been temporarily or permanently affected by reason of age, illness or mental or bodily distress
2. That Syed Khursheed Ahmed Hashmi stood in fiduciary relation with the Nawab
3. That Khursheed Ahmed Hashmi used his position or relationship in obtaining the waqf deed So far as the first question is concerned, we have, while considering the question whether the waqf deed in question was executed by the Nawab, pointed out that even though the evidence discloses that at the time of execution of the waqf deed the Nawab was in bad health, there was nothing on the record to show that his mental condition had been impaired to the extent that he was not in a position to understand the consequences of his action. Apart from urging that due to protracted illness and advanced age, the mental capacity of the Nawab must have been impaired, learned counsel for the plaintiff could not bring to our notice, any circumstances appearing in the evidence, which could justify the inference that the mental capacity of the Nawab had been impaired. The inference that Khursheed Ahmed Hashmi was in a position to dominate the will of the Nawab is also sought to be drawn merely from the fact that at the time of the execution of the waqf deed the Nawab was in weak health and was totally blind. In our opinion, this fact by itself cannot lead to an inference that Khursheed Ahmed Hashmi was in a position to dominate the will of the Nawab. The evidence discloses that the Nawab had been practically blind for about 3 years and that mostly his family members were living away from him. It is not suggested that during that period the Nawab had been dominated by anyone and that he had not been acting on his own free will. The evidence produced on behalf of Syed Khursheed Ahmed Hashmi clearly shows that due to certain reasons even before Khursheed Ahmed Hashmi came to live with the Nawab at Jaunpur, the Nawab wanted him to come to Jaunpur and to look after his estate and that he wanted to settle his property for his benefit. Accordingly merely because the Nawab was in a weak state of health and from amongst his relatives only Khursheed Ahmed Hashmi happened to be at Jaunpur at the time of execution of the waqf deed, it does not mean that the Nawab executed the waqf deed because of any undue influence exercised by Khursheed Ahmed HashmiThe waqf deed shows that the Nawab had taken care to see that his wife Smt. Zubeda Begum was throughout her life to get a sum of Rs. 200 p.m. for her maintenance. Accordingly, it cannot be said that the Nawab did not provide for his wife. The learned counsel for Smt. Zubeda Begum argued that considering the status of Nawab, Smt. Zubeda Begum could not possibly make her both ends meet in a petty sum of Rs. 200 p.m. and in substance no provision had been made in the waqf deed for her maintenance In the result, we find that there is nothing on record to indicate that the waqf deed in question had been obtained by Syed Khursheed Ahmed Hashmi by exercising undue influence on the Nawab and that the same is not invalid on that account. The finding recorded by the trial court to the contrary is accordingly set aside."
5. It is seen that Waqfnama was executed and duly registered by the Sub- Registrar who was also examined in this case. A gruelling cross-examination has been done of the Sub-Registrar and the High Court accepted his evidence. It is true that the trial court has given diverse reason for disbelieving the evidence of the respondent and accepted the case of the appellant. The High Court also being a final court of fact had appreciated the evidence and came to the conclusion that Nawab Mohd. Yusuf was in a fit mental condition though he was weak to execute the Waqfnama
6. It is then contended that Waqfnama was not in accordance with law and, therefore, it is not valid in law. We find no force in the contention. Mulla's Principles of Mahomedam Law, (18th Edn.) by Justice M. Hidayatullah, Former Chief Justice of this Court, mentions the definition of Waqf in para 173. Waqf means "the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman law as religious, pious or charitable"
. The dedication must be permanent and the subject of waqf may be any property. A valid waqf may, therefore, be made not only of immovable property, but also of moveables, such as shares in joint stock companies, Government promissory notes, and even money. In para 176, it is stated that the waqif must be owner on the date of creation. It is not in dispute that Nawab Mohd. Yusuf was the owner of the property. The object of the waqf has been stated in para 178, namely, as religious, pious or charitable. A waqf may also be created in favour of the settlor's family, children and descendants. Para 202 envisages that under the Mahomedan law, the moment a waqf is created, all rights of property pass out of the waqif and vest in the Almighty. The Mutawalli has no right in the property belonging to the waqf; the property is not vested in him, and he is not a trustee in the technical sense. He is merely a superintendent or manager. Para 203 states that subject to the provisions of sub-section (2), the founder of a waqf may appoint himself, or his children and descendants or any other person, even a female or a non-Mahomedan to be Mutawalli of a waqf property. A reading of waqf deed clearly indicates that he created a waqf. He is a follower of Hanfi Sunnet Ul Jammat of Islam. He is the owner of the properties mentioned in the Waqfnama. He named the waqf as Waqf-e-Yusufia. He also stated that the property vested in God for the benefit of the persons mentioned therein. He also stated thus :
"I will have the right to sell, lease or mortgage for the benefit of the Waqf, I will also have a right on the abolition of the Zamindari to get the compensation as Mutawalli of the waqf."
Thus, it is clear that he executed the waqf for religious benefit and thereafter the property vested in God and he assumed his character only as a Mutawalli. He nominated the first respondent, as his a successor of Mutawalli etc. Thus, it could be seen that the waqf created by Nawab Mohd. Yusuf is a valid waqf duly created in accordance with law. Only clauses 6, 7 and 11 are not valid in law. They accordingly stand excluded. As regards mental and physical condition of the Nawab, it is a question of fact. The High Court equally has gone into the entire evidence and recorded the finding, as extracted earlier. Under these circumstances, the waqf is not vitiated by any error of law warranting interference
7. The appeal is accordingly dismissed. Consequently, the other appeal, viz., CA @ SLP (C) No. 1638 of 1981 filed by the respondent also stands dismissed. No costs. All the interlocutory applications are dismissed