Ali Zamin vs Akbar Ali Khan and Others

Dawson-Miller, C.J.—This is an appeal by Syed Ali Zamin, the principal defendant in the suit, against a judgment and decree of the Subordinate Judge of Patna in favour of the plaintiff.

Although the appeal has been argued at some length the question for determination lies within a small compass. The plaintiff, Chhote Nawab, sued the defendant, Ali Zamin to establish his title as mutwalli of a religious endowment created by the plaintiff''s father, the late Nawab Latf Ali Khan and to recover possession of some of the endowed properties. The brother and two sisters of the plaintiff who, according to his case were interested in the appointment of the mutwalli of the endowment, were also added as pro forma defendants, but they have not entered appearance in the suit. Each party claims that he has been regularly appointed mutwalli and is entitled to the management of the endowed properties. It is agreed that Nawab Latf Ali Khan dedicated his interest in three villages to religious and charitable purposes in connexion with the Bouli mosque and Imambara situate at Patna by an oral wakf some eight or nine years before his death which occurred in the year 1890, and the difficulty in the present case mainly arises from the fact that the dedication was by word of mouth and no wakfnama or tauliatnama was executed from which the intentions, if any, of the settlor, who was himself the first mutwalli, can be gathered as to the mode of succession to the mutwalliship. The result is that we are largely dependent upon the evidence of persons who speak to matters which happened some 40 years ago. The case as presented to us on appeal is further complicated by the fact that the evidence of Nisar Hussain, the only witness who claims to have been present when the act of dedication is said to have been performed, did not commend itself to the learned Subordinate Judge before whom the suit was tried. In the event, however, he found that there was sufficient evidence on the record to indicate that the intention of the founder as to the appointment of future mutwallis had been expressed in the terms alleged by the plaintiff and he held that the plaintiff had been duly appointed mutwalli in the manner laid down by his father at the time of dedication.

It is the plaintiff''s case that Latf Ali Khan at the time of dedication directed that after his death the management should vest in his children with power to select one of their number to perform the duties of mutwalli and that no stranger should be appointed. When he died he left three sons known as Badshah Nawab, Manjhley Nawab and Chhote Nawab, and two daughters Razia Begam and Waziunnisaa Begam, and it is proved beyond all controversy that after their father''s death in 1890 they met and appointed the eldest son Badshah Nawab to be mutwalli, and he performed the office without objection by anyone until 1919, and it is the plaintiff''s case that after his brother''s death he was selected by his surviving brother and his two sisters to perform the office of mutwalli It appears that Badshah Nawab during his lifetime, in the year 1917, executed a wakfnama dedicating certain properties of his own to religious and charitable purposes in connexion with the same mosque and Imambara as that in which the services under his father''s wakf had been performed. By the deed he constituted himself the first mutwalli of his own endowment and directed that the appellant Ali Zamin should succeed him in that office after his death. Ali Zamin is related to the family by marriage having espoused the daughter of Manjhley Nawab as his first wife. She, however, died a few months after the ceremony. It appears that Badshah Nawab who was then the mutwalli of both institutions conceived the idea that it would be desirable that in future the office of mutwalli, in both should remain in the same person, and by an ekrarnama dated 17th June 1917, in which he formally relinquished his title as heir to any of the properties dedicated by his father he also declared that after his death whoever should be the mutwalli of his wakf should also be the mutwalli of the old wakf created by his father. It is on this ekrarnama that the defendant mainly based his claim. His contention is that this nomination, although not made by Badshah Nawab on his death-bed, operates as a testamentary disposition if not revoked. He further contends that Badshah Nawab subsequently when in mortal sickness appointed him his successor. He also relies on the fact that he is de facto mutwalli in possession and is entitled to remain in possession until a better title is proved. He concedes that if the founder Latf Ali Khan at the time of dedication laid down the mode of succession as alleged by the plaintiff, and if the plaintiff was appointed in accordance with the directions so laid down, his claim must fail. He contends, however, that the evidence fails to establish that Latf Ali Khan declared the mode of succession at the time of dedication and, even if he did so, asserts that the plaintiff was not properly appointed in accordance with such directions.

The main question for decision is whether as the learned Subordinate Judge found, Latf Ali Khan at the time of dedication laid down the rule of succession to the mutwalliship. It seems to be generally acknowledged by text-writers on the subject, and has been so enunciated by the Madras High Court, that when property is devoted to religious and charitable purpose it is usual for the appropriator to lay down rules for succession to the office of trustee upon which the question of succession depends. But if no such rules are laid down the power of appointment is vested in the appropriator during his life: see Shah Gulam Rahumtulla Sahib v. Mohammad Akbar Sahib 8 M.H.C.R. 63, Amir All''s Mahomedan Law, 4th edn., Vol. 1, p. 449; Tyabji''s Principles of Mahomedan Law, 2nd edn., p. 611; and other text-books. It is argued, however, on behalf of the appellant that the right of the founder where no special rules have been laid down in the first instance is confined to the appointment of his immediate successor and does not entitle him to provide for subsequent appointments. It is not disputed that under Shia law, by which the parties in this case are governed a mere declaration of wakf, does not constitute a valid dedication unless and until the founder divests himself of the proprietary interest in the dedicated property by transference of possession. Where he appoints himself the mutwalli such transfer may be evidenced by overt acts indicating a change in the character of his possession from that of proprietor to that of trustee. Tyabji, J., at p. 545 of his test-book, above referred to, states the matter thus:

Under Shia law a wakf is not completed unless possession of the wakf property is given either to the mutwalli or to the first beneficiary under the wakf, provided that where the object of a wakf is a charity, it is not completed unless a mutwalli is appointed, and possession is given to him.

It is unnecessary to refer to the authorities, which appear to be unanimous upon this point. The latest pronouncement of the Judicial Committee on the subject appears, in the case of AIR 1927 2 (Privy Council) where the four conditions governing the validity of a wakf under the Shia law, as set out in Balllie''s Digest, are referred to with approval. These include (3) possession must be given of the mowkoof of the thing appropriated and (4) it must be entirely taken out of the wakif or appropriator himself. It is necessary to bear this in mind in considering the effect of the evidence in the case because although the learned Subordinate Judge did not feel justified in accepting the evidence of Nisar Hussain, it was proved by the witness Kamla Prasad whose testimony he accepted that a day or so after the dedication the Nawab Sahib (Latf Ali Khan) intimated to all his servants in the sherista that he had made a wakf or the three villages and that a separate account and separate books should be kept for the wakf properties and in reply to his dewan asking whose name should be entered as, malik said that the three properties will be God''s, but that his own name will be shown as mutwalli and manager during his lifetime and after his death his sons and daughters would act as mutwalli or elect one of them to act as such. He also gave the names of the other persons, some eight in number, who were present on that occasion, but none of them is now alive. This evidence is corroborated by the testimony of other witnesses who speak to hearing Latf Ali Khan, on various later occasions, state how the office of mutwalli would devolve. It is also corroborated by the fact that on his death his sons and daughters did in fact appoint one of their number to the office, namely, Badshah Nawab the eldest son.

If the evidence of Kamla Prasad is accepted, and if it is admissible, then the principal point in the case must be decided in favour of the plaintiff and in accordance with the learned Judge''s findings. It is contended, however, that the evidence is not admissible. It is argued that any statement made by the founder even one day after the dedication as to the mode of succession is not a valid direction as to the succession, but that any intentions of wakif as to the appointment of future mutwallis, or the class from which they shall be selected must be expressed by him at the moment the oral dedication takes place. After that, it is argued, he is functus officio and cannot add to or take away from the conditions, if any, laid down in the first instance except that if no provision was then made for the appointment of his successor, he may during his lifetime nominate his immediate successor. Whether evidence of a statement made by the deceased founder so soon after the deduction is admissible u/s 11, Evidence Act, as a relevant fact making it highly probable that he had expressed a similar intention a day or so earlier when the dedication took place or whether such evidence should be entirely excluded as inadmissible, it is unnecessary to decide in the view I take of the transaction as a whole, for, in my opinion, it was within the competency of the dedicator to lay down rules as to the mode of succession to the mutwalliship up to the moment when the dedication became valid and effective by transference of possession. No decided case has been drawn to our attention which deals with the exact point under consideration. It is not disputed, however, that under the Shia Law which in this respect differs somewhat from the Hanafi Law, delivery of possession is a necessary condition to the validity of a wakf, and where the wakif appoints himself the mutwalli, as pointed out by Mr. Amir Ali at p. 499 (fourth edition) of his well-known text-book:

In such a case, a formal change of possession is out of the question. And, therefore, what is intended by the principle is not actual delivery of possession to another, but change in the character of the possession or of the dominion exercised over it.

The evidence of Kamla Prasad is, I think, evidence of overt acts on the part of the dedicator indicating a change in the character of his possession and its may reasonably be assumed that up to that moment he had not divested himself of the proprietary interest. There had been n,o change of possession either constructive or otherwise. Up to that moment, therefore, the necessary conditions as to the validity of the wakf had not been complied with. I think it would be unreasonable to hold that the founder could not after dedication but before the transaction became complete and effective lay down directions as to the mode of succession. The only text which I have been able to discover which throws light on the subject is that of the Jawahir-ul-Kalam, a leading authority on the Shia law, quoted in Mr. Amir Ali''s treatise at p. 500. The general proposition is stated by that learned author thus:

When all the conditions requisite for the completion of a wakf are complied with, its becomes absolute (if made in health) and cannot be revoked.

He then proceeds to quote the text: On this point,

says the author of the Jawahir-ul-Kalam, Abu Hanifa differs from us, though his disciple Abu Yusuf on arriving at Bagdad dissented therefrom. If the subject of the wakf has once changed possession and ceased to be under the wakif''s dominion, or has come into the hands or under the control of the beneficiaries of the trustee on their behalf, the wakif cannot revoke it or change the conditions of the wakf or withdraw it from the way of God or from the purposes to which it is dedicated.

This seems to ma to lay down by clear implication that up to the moment of change of possession the wakif may under Shia law lay down the conditions attaching to the wakf. If I am right in this view then, even assuming that the learned Subordinate Judge was justified in rejecting the evidence of Nisar Hussain, although it finds corroboration from later circumstances, there is clear and reliable evidence of Kamla Prasad, which the learned Judge accepted that shortly after the dedication the wakif, at the time when he took steps to divest himself of possession as proprietor, laid down the rules which should govern the succession, namely, that after his death his sons and daughters should act as mutwalli or elect one of them to act as such.

The appellant, however, contends that this would only apply to the first mutwalli to be appointed after the founder''s death, and having once exercised the power by 3appointing Badshah Nawab from amongst their number the sons and daughters had no further control, I do not so interpret the rule laid down by the founder. His expressed intention seems to me to have been that the management after his death should vest in his children, but they might delegate their powers to one of their number. If their selected representative should die, or for any reason should cease to act, their rights of management would revert to them and they could, if they so desired, select another of their number to fill the office. That is what in fact happened and the evidence of the plaintiff and his brother that they and their two sisters met and appointed the plaintiff shortly after Badshah Nawab''s death is uncontradicted. It is also corroborated by a petition (Ex. 4) presented by Manjhley Nawab and his sister Razia Bagam to the Deputy Collector of Gaya on the 9th July 1919, supporting the plaintiff''s application for mutation of names and praying that his name should be recorded in the Government register as mutwalli in place of his deceased brother. It is also in accordance with the practice adopted by them when they appointed Badshah Nawab on their father''s death some years earlier, and no cogent reason has been addressed to us for not accepting this evidence which the learned Judge considered worthy of credit.

In my opinion the learned Judge was right in the conclusion at which he arrived and I would dismiss this appeal with costs against the appellants, the costs to carry interest at 6 per cent, per annum from this date until realization.

Mullick, J.

I agree. The statement of Latf Ali to Kamla Prasad having been made, "at the time of dedication" is admissible as evidence of the mode in which the office of mutwalli was to devolve. The evidence of Kamla Prasad cannot in the circumstances be excluded as hearsay and, being corroborated by the various acts of the children of Latf Ali, is sufficient to enable the plaintiff to succeed.