Beli Ram and Brothers and others v. Chaudri Mohammad Afzal and others (PC) BS283007
PRIVY COUNCIL

Before:-Lord Normand, Lord Macdermott And Sir John Beaumont.

Privy Council Appeal No. 8 of 1947, D/d. 7.4.1948.

Beli Ram and Brothers and others - Appellants

Versus

Chaudri Mohammad Afzal and others - Respondents.

For the Appellant :- Sir Hebert Cunliffe and P.V. Subba Rao, Advocates.

For the Respondent :- Sir Thomas Strangman and A.G.P. Pullon, Advocates.

Solicitors for Appellants :- John C. Purchase and Clark.

Solicitors for Respondent, Peake and Co.

JUDGMENT

Sir John Beaumont - This is an appeal from a judgment and decree of the High Court of Judicature at Lahore dated 29.1.1945, which reversed a judgment and decree of the Court of the Senior Subordinate Judge, Lahore, dated 31.1.1942.

2. The question in the appeal relates to the validity of a deed of wakf or wakfnama, executed on 29.10.1917, by Ghulam Rasul. The respondents 1 - 4, the plaintiffs in the suit out of which this appeal arises, are descendants of the wakif and claim a declaration that the wakf is valid and that alienations of the wakf property made by the wakif, and after his death by his sons, are null and void. The appellants, defendants in the suit, claim under such alienations or some of them.

3. The questions which arise for decision are:

4. The trial Judge answered all these questions against the plaintiffs and dismissed the suit. In appeal the High Court answered all the questions in favour of the plaintiffs and decreed their suit.

5. Before discussing these questions it will be convenient to state the material facts and the relevant terms of the wakfnama.

6. Ghulam Rasul was a Sunni Muhammadan of the Hanafi sect and was possessed of considerable property. On 29.10.1917, he executed not only the said wakfnama, but also a will. The will disposed of part of his property described as part "A" and recited that the other part of his property described as "B" had been made wakf by a deed executed on the same day.

7. The relevant passages of the deed of wakf are as follows: The preamble stated:

8. Then followed particulars of the property made Wakf and of his heirs.

9. *****

10. Clauses 9 to 13 related to the duties, powers and rights of mutwallis:

11. There is no satisfactory evidence that Ghulam Rasul kept separate accounts of the wakf property or that he made the monthly deposit of Rs. 1875 as required by the wakf deed, or otherwise carried out the terms of the deed. The property was not transferred in the mutation register into his name as mutwalli and he continued to grant tenancies in his own name.

12. In April 1921, Mt. Mumtaz, the daughter of Ghulam Rasul, died. Ghulam Rasul on 6.4.1923, executed a deed purporting to cancel the deed of wakf. The following are the material passages of the deed :

This document was registered on 6.4.1923.

13. After the death of his daughter Ghulam Rasul executed various mortgages of property included in the deed of wakf, and on 6.2.1925, he died. After his death his property was entered in the mutation register in favour of his two sons, Din Mohammad and Ghulam Mustafa, respondents 5 and 6, as owners in equal shares. Thereafter the two sons executed various mortgages and sales of property included in the deed of wakf. It is not necessary to refer in detail to these alienations because it is conceded on the one hand that all alienations under which any of the appellants claim were made for value, and that in each case the person making the alienation purported to act as owner on an assertion of title, and not as mutwalli; and on the other hand that the appellants had notice of the deed of wakf at the time of the several alienations to them.

14. The issue of res judicata must be dealt with first, since, if the appellants are right upon this, the Court had no jurisdiction to entertain the suit. The issue arises in this way. Amongst the encumbrances executed by Ghulam Rasul between the date of the deed of wakf and the date of his death was one to Jia Ram who was given possession under a rent note. On 31.3.1926, Jia Ram commenced a suit in ejectment against Din Mohammad, and in his defence Din Mohammad set up and relied upon the deed of wakf. In support of his defence he filed in Court certain accounts alleged to have been kept by Ghulam Rasul in his life time, and afterwards by himself as mutwalli. The case of Jia Ram was that the wakf was a mere paper transaction never intended to be acted upon nor in fact acted upon. The suit was compromised on 11.8.1927, Din Mohammad admitting the invalidity of the wakf and Jia Ram agreeing to purchase the equity of redemption in the property mortgaged to him. After the decision of Jia Ram's ejectment suit there were considerable alienations by Din Mohammad and his brother of property included in the wakfnama, and by June 1931, the position was that the first appellants held mortgages as security for over Rs. 3½ lacs, the fourth appellant held mortgages as security for Rs. 70,000, whilst the second and third appellants had purchased part of the property. It was in these circumstances that on 1.6.1931, the suit was filed upon which the plea of res judicata is founded. The plaintiffs were the present respondents 1, 2 and 3, the only sons of Din Mohammad then living and all minors. Respondent 4, who is also a son of Din Mohammad, was born subsequently. They sued by their maternal grandfather, Dr. Saif - ud - Din, as their next friend. The defendants were Din Mohammad and Ghulam Mustafa, respondents 5 and 6 in this appeal, appellants 1 and 4 in this appeal and other mortgagees of property included in the wakfnama whose claims have now been disposed of Appellants 2 and 3 in this appeal were not parties to the former suit. The relief claimed was a declaration that the deed of wakf of 29.10.1917, was valid, and that the alienations of wakf property, seven in number, referred to in the plaint were null and void.

15. It is apparent, therefore, that the matter directly and substantially in issue in the former suit and in the present suit, namely, the validity of the wakf, was the same; that the, plaintiffs in the two suits were the same except for the fourth plaintiff in the present suit, who would be bound under Explanation 6 to Section 11, Civil Procedure Code The defendants were the same in the two suits except for appellants 2 and 3 who were not parties to the former suit. It is contended that appellants 2 and 3 are bound by the decree in the former suit because they claim through Din Mohammad who was a party to that suit. But the answer to this contention is that the alienations under which appellants 2 and 3 claim were made before the date of the former suit. Those appellants therefore do not claim under a party to the former suit who represented their interests in that suit, but under a person who subsequently became a party, and who at the time of the suit did not represent their interests. Their Lordships think that appellants 2 and 3 in any case are not affected by the plea of res judicata, but it must be considered whether the plea is effective against the other parties to this appeal. The High Court held that the plea was not available to any of the parties to this suit since the judgment in the former suit was obtained by fraud or collusion within the meaning of Section 44 Evidence Act. Their Lordships agree with this conclusion for the reasons following, which are much the same as those which appealed to the High Court.

16. Dr. Saif - ud - Din, the next friend of the plaintiffs in the former suit, gave evidence in the present suit and his evidence - in - chief included the following passage:

17. He admitted in cross - examination that he did not tell Lala Kahan Chand, who was counsel appearing for the plaintiffs, that he was instituting a fictitious suit at the instance of others.

If this evidence be accepted it is clear that the suit was a collusive one, but, as the High Court recognised Dr. Saif - ud Din cannot be accepted on this question as an unimpeachable witness. There is, however, a good deal of circumstantial evidence to corroborate his story as to the nature of the former suit. In the first place no reason, apart from that given by the next friend, has been suggested why the suit should have been started in 1931. The children of Din Mohammad were minors with no money to enable them to fight a suit, and the next friend had no personal knowledge of the circumstances in which the wakf was executed. The suit was dismissed with costs but there is no evidence as to how such costs were paid. In the second place the court - fee paid was Rs. 10 for a single declaration. As the plaint asked for a declaration as to the invalidity, not only of the wakf, but also of seven alienations, it is clear that the fee was inadequate. It was not, however, challenged by the defendants, though in the present suit a much higher valuation was successfully challenged. In the third place only two witnesses were called on behalf of the plaintiffs, one of whom was the next friend who said that he had been abroad when the wakf was executed and really knew nothing about it, and the other of whom said he had been told by Ghulam Rasul about the execution of the wakf but that it had never been acted upon. This evidence was quite useless and if there were no better evidence available there was no justification for filing the suit. In the fourth place no argument seems to have been addressed to the Court that the wakif had in the deed itself declared that he held the property as mutwalli, that he had admitted in the so - called deed of revocation that he had executed the wakf for a legal purpose which remained operative until April 1921, and that a wakf once effective cannot be revoked. In the fifth place Din Mohammad was called as a witness and in his evidence - in - chief referred to the suit of Jia Ram, but his cross - examination was perfunctory. He was not asked about his defence in the ejectment suit in which he had relied upon the wakf, nor as to the alleged accounts which he had filed in that suit. In the sixth place it appears from the accounts between the appellants 1, Beli Ram and Brothers, and Din Mohammad that on 11.6.1931, a few days after the suit had been commenced, they advanced to him Rs. 1,150, and on 1.1.1932, three days before the decision of the suit, they advanced to him Rs. 3,935, advances which suggest a source from which the costs of the suit may have come, and also indicate that appellants 1 felt no anxiety as to the result of the suit. Seventhly, no appeal from the judgment was filed.

18. Taken separately none of these reasons conclusively proves fraud or collusion; some of them might be attributed to mere incompetence on the part of the advocate for the minor plaintiffs. But collectively they appear to their Lordships to establish conclusively that the suit of 1931 was started without justification, and was not intended to be, and was not fought with the vigour with which a suit in which minors were concerned should have been fought, and to afford very strong corroboration for the story of Dr. Saif - ud - Din that the suit of 1931 was brought by the next friend in collusion with Din Mohammad and others, not for the purpose of establishing the wakf but for the purpose of getting it declared invalid and thus clearing the title and enabling Din Mohammad to dispose of the equity of redemption in the property mortgaged to appellants 1, as he did a few months later. There is no other explanation on the record which fits the facts. Their Lordships therefore reject the plea of res judicata.

19. The second question which arises, namely, whether the deed of wakf was a mere paper transaction never intended to be acted upon, was discussed at considerable length in the Courts in India, but in their Lordships' view the question admits of no serious doubt and can be disposed of shortly. It is, no doubt, the law that, the validity of a wakf involves that there was an intention to dedicate on the part of the wakif. Where there is evidence that a wakfnama has been retained by the wakif and never acted upon, and that the property comprised therein has been dealt with by the wakif as his own, such evidence may lead to an inference that no dedication to wakf was ever intended, and that the deed was designed merely to provide a shield against possible claims which the wakif anticipated might be made against him : see 35 CWN 324.1 On the other hand it is established law that but once there is an effective dedication in wakf it cannot be revoked; and it is obvious that breaches of trust on the part of a trustee however numerous, and extending over however long a period, cannot put an end to the trust. In the present case their Lordships feel no doubt that there was an intention on the part of Ghulam Rasul to create the wakf, and that it became effective. He entered into the deed deliberately as part of his scheme for the disposal of his estate under a will and a wakfnama. The deed contains a statement that the wakif had divested himself of the possession of the property made wakf and taken over the management thereof in the capacity of a mutwalli, and their Lordships see no ground on which that declaration can be disregarded. It is not necessary under Hanafi law that there should be a change in the mutation register. Further than that, in April, 1923, he executed the so - called deed of revocation whereby he admitted the execution of the deed of wakf, and stated that his object in executing the deed was to deprive his daughter of the share in his estate which she would have taken as one of his heirs. This object was not illegal, and remained operative until the death of his daughter which occurred in April 1921. There is no suggestion that the wakif did not understand the nature of the wakf, or that he was in embarrassed circumstances and executed the wakfnama to defraud or delay his creditors. It was only after the execution of the so - called deed of revocation that he commenced to mortgage the properties included in the wakf as an owner. Their Lordships think it clear beyond question that had Ghulam Rasul died in the lifetime of his daughter his three children would not have inherited the property comprised in the wakf as heirs of their father, but would have taken only the shares in the usufruct given to them by the wakf. Their Lordships therefore have no hesitation in holding that there was an intention on the part of Ghulam Rasul to dedicate the property to wakf.

20. The next question, whether the wakf deed is good in law, presents more difficulty. Before the passing of the Mussalman Wakf Validating Act (6 of 1913), it had been established by decisions of this Board that a wakf was invalid if the gift to charity contained therein was illusory, whether because of the smallness of the proportion of the property allotted to charity, or because the gift to charity was postponed for such a length of time as to make the prospect of charity ever taking problematical. The law on this point was altered by the said Act which provided in Section 3:

Their Lordships think that in the present wakfnama the gift to charity of three shares out of fifty is not of so substantial a part of the property as would have rendered the deed valid before the passing of the Act, and that the deed, if it is to be upheld, must come within the terms of the Act.

21. The deed is not altogether easy to construe. The preamble states the intention of the wakif that the income of the property may provide for his own maintenance, the upbringing, education, both religious and secular, and instruction of his descendants and their descendants from generation to generation and their heirs, for charity and for the help of orphans, the poor and widows. It is argued that the inclusion of heirs of descendants introduces possible collaterals and goes beyond the objects permitted by the Act. It is to be observed, however, that the Act authorises the maintenance and support not only of children and descendants but also of the family of the wakif, and it is by no means clear what that word includes. However, in clause 8 of the deed which is the operative clause containing the gift to individuals, the gift is of 16 shares to one son, 16 shares to another son and 8 shares to the daughter, and then the words occur:

It will be noticed that in these words of gift there is nomention of heirs, and the operative part of a deed cannot be controlled by recitals if the operative words are clear. The direction that the property is to go from generation to generation appears to their Lordships to limit the class of beneficiaries to descendants, and to exclude any heirs who might be collaterals. This consideration finds strong support from clause 7 which provides that if any one from among the wakif's male descendants or the male descendants of his female progeny (in effect) changes his faith he is to be deprived of his right to become a mutwalli and be permanently debarred from receiving his share of the income. Their Lordships think it inconceivable that the testator could have intended that his descendants should forfeit their interests by a change of faith but that kindred who were not descendants should be in a better position. If the gift of beneficial interests in the wakf property is confined to descendants the deed clearly comes within the terms of the Act, but a difficulty is introduced by clause 15. That clause appears to provide that if the line of the wakif and his relatives, male and female descendants, becomes extinct then the income of the wakf property should be applied by the members of the Anjumans therein mentioned for the charitable purposes specified, which are wider than those mentioned in the preamble. The High Court came to the conclusion that the effect of clause 15, was by implication to include kindred and their descendants as objects of the wakf and that such persons did not come within the class of beneficiaries allowed by the Act. The Court, however, decided that the gift to kindred could be struck out of the deed so as to accelerate the gift to charity. The Court stated the principle on which it acted in these words:

It was contended with force by the appellants that the effect of including the kindred and their heirs would be to invalidate the deed, and that the first condition postulated in the passage of the judgment quoted was not complied with, and that an invalid deed cannot be rendered valid by striking out that part which offends against the law. Their Lordships do not find it necessary to consider that question because they are not in agreement with the High Court in thinking that a gift to kindred is implied in clause 15. The one thing clear about clause 15 seems to be that it does not contain a gift of any kind, and their Lordships see no ground for implying one, particularly one which might offend against the Act under which the deed was expressed to be made. Their Lordships think that clause 15 has to be linked up with clause 2 which deals only with the appointment of mutwallis. Under clause 2 a mutwalli had first to be selected from amongst the descendants of the wakif and on their extinction from amongst his kindred and their male descendants or the male descendants of female descendants considered fit, and on the extinction of all those then upon a Mohammedan from among the members of the Aujumans mentioned in the clause. Their Lordships think that clause 15 was intended merely to give directions to take effect when the Anjumans got control. It was further contended by the appellants that even if no gift to the kindred was to be implied under clause 15 still that clause contained the only gift to charity, and its effect was to postpone the gift until the extinction of all the kindred of the wakif and their heirs, a date which, it was argued, went beyond the period allowed by Section 4 of the Act. In their Lordships' view clause 15 of the deed does cot contain a gift to charity. It merely directs the charitable purposes to which the property was to be applied when the Anjumans got control.

22. In the view their Lordships take of this deed of wakf there is a clear overriding charitable intention expressed in the preamble, and this absorbs any beneficial interests in the usufruct which are cot expressly covered by the deed. The beneficial interests in the usufruct go to the three children of the wakif in the shares mentioned in clause 8 and pass to their descendants from generation to generation according to Mohammedan law under which males take twice the share of females. On the extinction of any of the three lines, the share belonging to that line will be applicable in charity in accordance with the general charitable intent since there is nothing in the deed to justify the view that the share of a line becoming extinct accrues to the other lines. The same principle will cover any beneficial interest which may accrue between the extinction of the lines of the children of the wakif and the time when the provisions of clause 15 come into operation. Their Lordships therefore hold the wakf to be valid.

23. On the question of limitation the only point argued before the Board was that the right to claim a declaration that the wakf was valid was governed by Article 120, Limitation Act. It is sufficient to say that their Lordships entirely agree with the High Court that time never runs in favour of a trustee so as to enable him to claim the trust property for himself. Ghulam Rasul never divested himself of the character of Mutwalli, and the same is true after his death of Din Mohammad. In purporting to deal with the wakf property as owners they were committing breaches of trust, not setting up title adverse to the trust.

24. The High Court granted a declaratory decree to the effect that the properties mentioned in the plaint are wakf and the alienations in respect of the same are null, void and ineffectual as against the wakf property. It is clear that respondents 5 and 6, the sons of Ghulam Rasul, have alienated the wakf property and received large sums of money by so doing. Their Lordships think that the decree should be without prejudice to any claim the appellants may have to obtain relief against respondents 5 and 6 in respect of their beneficial interests under the wakf or otherwise, though their Lordships must not be taken as indicating any opinion that such a claim lies. Their Lordships will therefore humbly advise His Majesty that the decree of the High Court, dated 29.1.1945, be modified by adding the words :

Order accordingly.