Nesar Ali vs Ashraf Ali

Chittatosh Mookerjee, J.—On October 27, 1824, one Aminuddin Ahamed, who was a resident of Sealdah, executed a deed of wakf in respect of the property described therein. The said deed was in Persian language. An English translation of the said deed is on record of the present case. He declared by the said deed that incomes arising therefrom after defraying expenses shall be spent in charity of the beggars and remainders and the remaining one-third shall be applied for maintenance of his two wives in the manner indicated therein. After the death of the widows, the income arising from his house shall be applied to the expenses of beggars. The said wakf, further, declared that the Tawalist (Trusteeship or Management) shall remain in him during his lifetime and after his death Tawali shall rest upon his two nephews (sister''s sons). Hossain Ali and Amjad Ali ''nasland bad naslan''.

The principal question in the present second appeal is in what manner the office of Mutwalliship or Tawalist under the above deed is to devolve upon ''descendent after descendent'' or ''generation after generation''. The answer to the said question would depend upon the interpretation of the above expression ''nasland bad naslan'' in the aforesaid wakfnama.

After the death of the two nephews, Hossain Ali and Amjad Ali, Fatima Khatun had become the Tawalist. Fatima died leaving three sons, Ashraf Ali, the Plaintiff-Respondent in this second appeal. Ali Hossain, the father of the Defendant-Appellant and Akram Ali and two daughters, Nurjahan Begum and Asrannessa Begum. According to both parties, Akram Ali migrated to Pakistan. Nurjahan Begum and Asrannessa Begum did not act as Mutwallis or Tawalists.

Ali Hossain brought T.S. No. 65 of 1950/9 of 1946, inter alia, for removal of the present Plaintiff-Respondent from the office of the Mutwalliship. The said suit was originally decreed and the appeal by Ashraf Ali was dismissed by the lower appellate Court. This Court allowed the second appeal preferred by Ashraf Ali and remanded the case to the trial Court. After remand, the trial Court had again decreed the suit in favour of Ali Hossain declaring him as a joint Mutwalli. The trial Court ordered that Ashraf Ali be removed from Mutwalliship and also directed him to render accounts from April 1946. The lower appellate Court dismissed the title appeal of Ashraf Ali. Thereafter, he filed a second appeal. This Court allowed the said appeal in part. It upheld the decree declaring that Ali Hossain was a joint Mutwalli. But the wakf in question was found to be a public one. Therefore, this Court set aside the decree for rendition of accounts and for removal of Ashraf Ali from Mutwalliship on the ground that Section 92 of the CPC stood as a bar. Thereafter Ali Hossain died. The present Defendant-Appellant who was an heir of Ali Hossain had applied to the Wakf Commissioner, West Bengal, for mutation of his name in place of Ali Hossain in the Enrolement Register as a joint Mutwalli with the present Plaintiff-Respondent. The Wakf Commissioner, West Bengal, ordered that the name of the present Appellant be recorded as a joint Mutwalli with the Plaintiff-Respondent Ashraf Ali.

Thereupon, the Respondent No. 1 Ashraf Ali instituted a suit against the present Appellant and the Wakf Commissioner, West Bengal, inter alia, for the declaration that the order of the Wakf Commissioner dated December 24, 1964, ''appointing'' the Defendant No. 1 as Mutwalli to the estate of late Aminuddin Ahamed was illegal, inoperative and null and void and for a further declaration that the Defendant No. 1 (the present Appellant) was not entitled to act as a Mutwalli and for permanent injunction to restrain him from acting as a Mutwalli. The Defendant No. 1 contested the said suit. The learned Munsif, Third Court, Sealdah, dismissed the suit, inter alia, holding that Nesar Ali, the Defendant No. 1 (the present Appellant) was a joint Mutwalli with the Plaintiff Ashraf Ali. The learned Additional District Judge, Thirteenth Court, Alipore, allowed the appeal of the Plaintiff, set aside the decision of the learned Munsif and decreed the suit in favour of the Plaintiff. Hence, this Second Appeal.

The Wakif, Aminuddin, by his wakfnama had made provision for devolution of the office of Tawalist or Mutwalliship alter the death of his two nephews. He designated the future holders of the said office by use of the expression ''nasland bad naslan''. According to the trial Court, the said expression meant that after the death of the two nephews of the Wakif, the office of the Mutwalliship would devolve from ''descendent to descendent''. Therefore, after AH Hossain''s death, the Defendant No. 1 had become a joint Mutwalli. The lower appellate Court did not agree with the said interpretation and held that the above expression meant "generation to generation''. Therefore, the Plaintiff Ashraf Ali being nearer in decree and the Defendant No. f Nesar Ali, being remoter, the Plaintiff had more preferential right to the office of Mutwalliship and the Defendant cannot be simultaneously a Mutwalli with him have already indicated that the main point in this appeal is the correct interpretation of the above expression ''nasland bad naslan'' in the aforesaid wakfnama. If the intention of the Wakif was that the office of the Mutwalliship would devolve from generation to generation, obviously, so long as the Plaintiff was alive he would alone be the Mutwalli. If, on the other hand, it was intended to confer absolute interest upon his descendents who would become Mutwalli, then on the death of Ali Hossain, his office must be deemed to have devolved upon his heirs and the Defendant-Appellant as successor-in-interest of Ali Hossain would be a joint Mutwalli with the Plaintiff.

Mr. Dasgupta, the learned Advocate for the Appellant, submitted that the Wakif by use of the above expression intended to confer Mutwalliship upon his successor absolutely and therefore, the office devolved upon from descendant after descendent. The learned Advocate placed before me Richardson''s Persian, Arabic and English Dictionary (3rd ed., Pt. IV, p. 1576) to establish that one of the meaning of the word ''nasl'' is progeny or offspring. Baille in his Digest of Moohummudan Law (2nd ed., p. 582) states that if one children makes a settlement on his ''nasl'' or ''zurreut'' (both words meaning progeny), the children of his sons and the children of his daughters would be included whether near or remote. Baille (at p. 583 of his Digest) further lays down that when one says--

I have made this my land a sudukah appropriated to Almighty God for ever for my child and child of my child and children of their children and their ''nasl'' for ever so long as there are ''nasl'', every child that he had at the time of the appropriation and every child born to him thereafter before the existence of the produce and child of the child for ever enters into the benefit of the produce of this sudukah; and if any of them should die before the existence of the produce, the share of the persons so dying would fall to the ground but if the death should not occur till after the existence of the produce, the person dying would have acquired a right to his share which would pass to his heirs. The higher and lower generation sharing equally unless it has been said in making the appropriation that a beginning was to be made with the higher generation and then the generation below it. In that case, if all the higher generations but one person should die, the whole would go to that person alone, to the exclusion of the generation below and if one should say "for my child and child of my child for ever so long as there is any ''nasl'' without saying ''butnan baad butn'' but adding" as often as one dies, his share of the produce to his child.

The produce would before the death of any of them be among the whole of the children and children''s children and their ''nusal'' equally; and if one of them should die leaving a child the share of the person so dying would go to his child and would thus have his father''s share in addition to that appointed for him by the appropriator.

Mr. Dasgupta also relied upon Tyabji''s Muslim Law (4th ed., 1908, p. 604) where meaning of different terms used in wakfnamas have been given. The learned author has slated that:

''Naslan baad naslin'' and ''batnan baad batnin'' (subject to surrounding circumstances and context) ordinarily confer absolute interests.

The learned author further stated (foot-note 15, pp. 604-605):

Final inflections often omitted so as to shorten into; nasl baad nasl, bain baad batn. Choudhury Ahmed Azim v. Choudhury Safi Jan, (1926) 2 Luck. 335, 337; Syad Mahomed Ghouse v. Sayabiren Saib, (1934) 68 M.L.J. 684; Saadat Kamel v. Att.General (Pal), (1939) A.C. 508, AIR (1939) (P.C.) 185, 189 (butnun baad butn--''from generation to generation''); This phrase has intention and effect to preventing nearer and more remote descendents from being treated alike; the nearer and more remote are alike, unless the appropriator says in making the wakf ''the nearer is nearer'', or says on my child and then after him or them on the child of my child, or says, ''generation after generation'' (butnun baad butn), when a beginning must be made with them with whom the appropriator has begun. Bail. I 571 (580). See Babu Bhagwan Din v. Gir Har Saroop (1939) 67 I.A. 1.

Mr. Dasgupta in support of his contention that the expression ''nasland baud nasland'' means descendent after descendent, relief upon the observations of the Privy Council in (1939) 9 AWR 188 (Privy Council) . The said appeal in the Privy Council was preferred against the judgment of Nanavutty and Ziaul Hassan JJ. in Gir Har Saroop and Ors. v. Bhagwan Din and Ors. AIR 1935 Oudh 96. In the said case a Nawab of Oudh on April 2, 1781, in favour of goshain had granted a sanad of 5 pucca bighas of waste land revenue free ''naslan baad naslan'' was ''batnan bad batnan''. The Division Bench of Oudh High Court rendered the said expression as ''generation after generation'' and ''descendent after descendent''. According to the Division Bench, the said grant was made to goshain in his personal capacity and not a gift to the idol so as to constitute a wakf. Sir George Rankin, who delivered the opinion of the Privy Council in (1939) 9 AWR 188 (Privy Council) , agreed with the said interpretation of the giant and observed with the reference to the grantee''s heirs and the Arabic terminology ''naslan baad naslan'' and ''butnan baad butn'' (descendent after descendent and generation after generation) were not reconcilable with the view that the grantor was in effect making a wakf for a Hindu religious purpose. It was, however, not necessary for the Privy Council to consider whether there was any difference in the meaning of the expressions ''naslan baad naslan'' and ''butnan baad butn''.

In Wilson''s Glossary of Judicial and Revenue Terms etc. (Reprinted 1940, p. 589) meaning of ''nasl'' has been given as lineage, race or descent. ''Naslan baad naslan'', ''naslan bad naslan'' have been explained as ''in regular descent or succession (generation to generation). Ramlal v. Secretary of State ILR (1881) Cal. 304 (315) P.C. Bhairo v. Parmeshri Dayal ILR (1884) All. 516 (519). The use of these words shows an intention to convey an absolute interest. Lachman Das v. Bhagwant Ram 65 I.C. 707 : 8 C.L.J. 481, Naslan bad naslan and Batnan bad batnan. The words have always been held as words denoting an absolute estate, i.e., an estate of inheritance. Bindha Din Tewari v. Ram Harakh Dubey 6 C.W.N. 722 : AIR 1929 Oudh 415.

The Privy Council in Ramlal v. Secretary of State Supra quoted a passage from the judgment of Sir Barnes Peacock in Ganendra Mohan Tagore v. Upendra Mohan Tagore 4 B.L.R. 103 (182). Sir Barnes Peacock while considering the rights of the devises subsequent to the life estate given to Jitendra Mohan under the Will of Prasanna Kumar Tagore had observed:

It is certainly true, as stated by the learned Judge, that a gift to a man and his sons and grandsons, or to a man and his sons'' sons, would in the absence of anything showing a contrary intention pass a general estate of inheritance according to Hindu Law. I believe the words usually used in Bengal are putra-pautradikrame and in the Upper Provinces naslan baad naslan, the literal meaning of the former being to sons, grandsons. and, in the succession and of the latter in regular descent or succession.

These observations of Sir Barnes Peacock regarding the meaning of ''naslan baad naslan'' although appear to be obiter dicta are entitled to highest respect. They clearly support the Appellant''s case that the above expression means regular descent or succession. This passage which was already pointed out was approved by the Privy Council in Ramlal v. Secretary of State Supra. This the office of Mutwalliship was to devolve descendent. It was intended to give absolute estate upon the persons who would succeed as Mutwallis after the demise of the three nephews of the Wakif. Therefore, the office of Mutwalliship was to descent in the line of succession of these persons and not according to generation by generation.

A Division Bench of Allahabad High Court in Syed Ali Muqtadi Khan and Ors. v. Abdul Hamid Khan and Ors. (1919) 49 I.C. 878 (880-1) interpreted a wakf deed which provided that two nephews of the person who created the wakf would be Mutwallis after him. Thereafter, the Mutwalliship was to descend upon the issue of the said two nephews, ''naslan bad naslan was batnan bad batnan daiman was abdan ghair munqataan (sic) muntaqilan ala sabil al instimrar wal istiqlal.'' A Division Bench of the Allahabad High Court held that the Mutwalliship, according to the deed of wakf, was to continue in all branches of the family and nephews of Buniad Ali Khan, who had created the said wakf. The learned Judges after considering the language of the deed held that the office of Mutwalliship was to go generation after generation to the descendents of the two nephews of the founder and no mention had been made in that deed by which any preference was to be given among the said descendents nor any limit had been placed on the number of Mutwallis from among the descendents.

These aforesaid authorities lay down that the expression ''naslan bad naslan'' confers absolute interest, i.e. an estate in inheritance. If such absolute interest was conferred on the successor Mutwallis after the death of the three nephews of the founder of the present wakf, necessarily the office of Mutwalliship would descend in the line of succession of these persons, i.e. the descendents after descendents. The authorities cited by Mr. Bhattacharya, learned Advocate for the Respondent, mostly deal with the meaning of the word ''batnan bad batnan''. As present advised and in the absence of any authoritative pronouncement, I am unable to hold that the said expression is synonymous with the other expression naslan baad naslan''. A Division Bench of Andhra Pradesh High Court in Nazhar Ali Saheb and Ors. v. Gulam Murtujah Saheb and Ors. AIR 1958 A.P. 8 (15) held that the ordinary rule of Muhammadan Law would apply in which the nearer excludes the remoter, is not applicable in case of an endowed property. In this connection the learned Judges quoted a passage from Mulla''s Muhammadan Law to the effect that when a wakf is made for the benefit of the descendents and no rules of succession are laid down in the deed of wakf. the descendents take per stirpes and not per capita. Ameer Ali''s Mohammedan Law (4th ed., vol. I, p. 362) was also referred to. The learned Judges further pointed out that if the succession of heirs is given or indicated, that is the wakf is in favour of the descendants generation to generation, the implication is that the nearer line or class takes first and after them the line next after. But profits are to be divided equally among all the descendents. This decision did not deal with the meaning of the word ''nasland baad naslan'' and therefore, the same is not relevant and had interpreted the language used in the wakfnama considered by them. The decision of the Privy Council in Saadat Kamel Hanum v. Attorney-General for Palestine I.R. 1939 A.C. 508 (514-15, 523, 526), which was cited by Mr. Bhattacharya, learned Advocate for the Respondents is also distinguishable. The said case was primarily concerned with the question of limitation under certain Articles of Ottoman Civil Code which was applicable to the case. The Supreme Court of Palestine had held that the suit by a Mutwalli for recovery of a wakj property was barred by limitation. Further, the deed of wakf in question while providing that the balance of the income after the death of the three children of the founder shall ''for their children, then to their grandchildren etc'' had expressly mentioned that the upper category shall enjoy before the lower category descendents and the parents shall enjoy it before the children but not before the children of other beneficiaries. Sir George Rankin in his judgment dealt with the meaning of the word ''batnan bad batan'' and not of the expression ''nasland baad naslan''. Further, it was held, that the Ottoman Civil Code did not intend that the time should begin to run afresh by reason either that the office of Mutwalliship had passed to a new incumbent or that an interest had accrued to a new beneficiary. The cause of action in the said case was to recover possession of the property of the Wakif for the benefit of all persons then interested or thereafter to become interested and therefore, the time of 36 years began to run from the time the right of recovery could have been first asserted. Thus, the Privy Council decision does not assist us in interpreting the expression ''naslan band naslan''.

The lower appellate Court in finding that the above word means ''veneration to Generation'' referred to in Haim''s Shorter Persian-English Dictionary. The said dictionary published from Tehran in the year 1958 claimed to treat 30 thousand words and idioms in modern Persian. At p. 751 of the said dictionary meaning of ''naslan'' has been given as off-spring, seed or generation and ''naslan baad naslan''s English equivalent has been given as ''generation to generation''. A question may arise how far the said dictionary would be useful in ascertaining the meaning of expressions appearing in a document written in India in the year 1824. There is another reason why I am unable to place any reliance upon this dictionary. The book does not appear to be a law lexicon and the same cannot be accepted in preference to the above judicial pronouncements, regarding the interpretation of the expression ''naslan baad naslan''. I have already indicated that there is a preponderance of the judicial authority in favour of the interpretation put by the learned Advocate for the Appellant. The said expression would mean descendent after descendent and there is nothing to show that the founder of the wakf by using of the said expression intended to apply the rule, the nearer excludes the remoter in the matter of succession to the office of Mutwalliship. The lower appellate Court was not justified in holding that the two expressions ''naslan baad naslan'' and ''batnan had batnan'' are inter-changeable expressions and that they mean one and the same thing. The lower appellate Court had also erred in law in ignoring the authorities referred to in judgment of the trial Court which I have already stated support the case of the Defendant-Appellant that the founder intended that the office of Mutwalliship shall devolve upon the descendent after descendent.

One misconception may be cleared. The Commissioner under the Bengal Wakf Act, 1934, apart from appointing interim Mutwallis cannot make any permanent appointment. In the instant case after the death of Ali Hossain, who was recorded as a joint Mutwalli Wakf Commissioner, had amended the Register of Wakf u/s 45 read with Section 46 of the Bengal Wakf Act and the same did not amount to any fresh appointment of the present Appellant as a joint Mutwalli. The same was merely a recognition of his right to be a Mutwalli after the death of his father as provided in the wakf deed. For the reasons already given, in my view, the Wakf Commissioner had validly entered the name of the Defendant-Appellant as a co-Mutwalli.

Accordingly this appeal succeeds.

I, therefore, allow this appeal; set aside the judgment and decree of the lower appellate Court and restore those of the trial Court.

Leave under Clause (XV) of the Letters Patent is prayed for and it is refused.

Let the application dated June 12, 1975, be permitted to be withdrawn as prayed for.