# BIBI SADDIQA FATIMA v. SAIYED MOHAMMAD MAHMOOD HASAN

- **Citation:** [1978] 3 S.C.R. 886
- **Court:** Supreme Court of India
- **Decided:** 1978-05-03
- **Case number:** Civil Appeal No. 2462 of 1968
- **Bench:** H. S. Sarkaria, N. L. Untwalia, P. S. Kah.Asam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bibi-saddiqa-fatima-v-saiyed-mohammad-mahmood-hasan-7452
- **Pages:** 27

## Headnote

Waqf-alal-aulad-1\Tature of, under Shia law-Any property acquired by a
Mutalvalli either in his na1ne or bena1nidar will be a waqf property-Mutawulli's
duty and powers of regarding waqf property.
Pkadings must be construed on the basis of the stand taken ar the trial and
)
the is~ue.; on which the parties adduced evidence and argued.
-f
One Smt. Sughra Begum, a Shia Muslitn lady \vas possessed of vast Zamindari and other properties. On October 6, 1928, she created a \Vaqf of the entire
properties dividing them in three qurras, Raja Haji Saiyed Mohammad Mahmood Hasan was appointed by the \Vaqifa as the
~1utawalli of qurra No. 1.
After the death of his first wife Smt. Akbari Begum. the Raja took the plaintiff
appellant as his second wife in the year 19~3. On January 22, 1935, a perma~
nent lease was executed on behalf of one Saiyad Anwarul Rahman. in respect
of the disputed land in the name of the plaintiff. The rent fixed was Rs. 80 /-
per year.
Between the years 1937 and 1939 a bungalow was constructed on
the said land which was named as "Mahmood l\fanzil''. The Raja died in
September, 1939.
The plaintiff appellant filed a suit No. 86 of 1952 in the
Court of the Civil Judge, Aligarh in which the original respondent was the
sole defendant.
The plaintiff's case was that the disputed property belonged
to her and that the Uefendant was inducted as a tenant of the ·k_othi' on and
from 1-3-1947 on a rental of Rs. 60/- p.m., that he paid rent upto May 1950,
but did not pay any rent thereafter, that she served a notice on him to pay the
arrears of rent and deliver vacant possession of the Kothi.
The defendant
respondent pleaded
inter alia
that Raja Sahib. the first Muta\valli of qur1a
No. 1 had acquired the lease of the land and constructed the Kothi with the
waqf fund as Mutawalli of the waqf and therefore it was a \vaqf property,
tha-t after the death of the Raja, he became the Mutawalli of qurra No.
·1
including the Kothi in question and that he occupied the Kathi as a Mutawalli
and not as a tenant.
The Trial Court accepted the case of the defendant, rejected that of the plaintiff and dismissed her suit. Her appeal before the High
Court was dismissed.
Dismissing the appeal by special leave, the Court
HELD : 1. According to Shia law, the waqf is irrevocable after possession is
given to the beneficiaries or the Mutawalli.
The settler divests himself of the
ownership of the property and of everything in the nature of usufruct from, !.he--.1.
n1oment
the waqf is created. In pure
metaphorical sense, ·the
expressioll }
"ownership of God" is used but unlike Hindu law, since conception of a per-
.....
sonal God is not recognised there is no ownership of God or no property
belongs to God in the jural sense, although "the ownership of the property
becomes reverted in Gcxl as he is orginally the owner of all things".
The
property is cons
1idered as transferred to the beneficiaries or the !\.Iutawalli for
the object of the waqf. Strictly speaking, the ownership of the waqf prope.rty
has no jural conception with any exactitude. The corpus is tied down and is
made inalienable.
Only the usufract and the income from the corpus or the
waqf property is available for carrying out the objects of the \Vaqf.
Creation
of waqf for the purpose of maintenance of the waqif's family and their descendants is also a charitable purpose. [894 G-H, 895 A-B]
•
2. A Mutawalli is like a manager rather than a trustee.
The Mutawalli,
-- .
so far as the waqf property is concerned, has to see that the beneficiaries got
the advantage of usufruct. The Mutawalli may do all acts reasonable and proper for the protection of the waqf property, and for the administration of
the waqf.
[895 E, 896 DJ
,>
•
)
-
....

>
l
,.,
\
,
•
• I
•
}
/
I
•
..
FATIMA v. HASAN
887
2{a) A Mutawalli ofi a waqf although not a trustee in the tn1e sen.c;e of the
A
te.rm is still bound by the various obligations of a trustee. He like a trus~ce
or a Person standing in a fiduciary capacity cannot advanc

## Text

_Characters 0–39,809 of 84,816. This is a partial read: ask again with offset=39809 for what follows._

A
B
c
D
E
G
H
886
BIBI SADDIQA FATIMA
v.
SAIYED MOHAMMAD MAHMOOD HASAN
May 3, 1978
[H. S. SARKARIA, N. L. UNTWALIA AND P. S. KAH.ASAM, JJ.]
Waqf-alal-aulad-1\Tature of, under Shia law-Any property acquired by a
Mutalvalli either in his na1ne or bena1nidar will be a waqf property-Mutawulli's
duty and powers of regarding waqf property.
Pkadings must be construed on the basis of the stand taken ar the trial and
)
the is~ue.; on which the parties adduced evidence and argued.
-f
One Smt. Sughra Begum, a Shia Muslitn lady \vas possessed of vast Zamindari and other properties. On October 6, 1928, she created a \Vaqf of the entire
properties dividing them in three qurras, Raja Haji Saiyed Mohammad Mahmood Hasan was appointed by the \Vaqifa as the
~1utawalli of qurra No. 1.
After the death of his first wife Smt. Akbari Begum. the Raja took the plaintiff
appellant as his second wife in the year 19~3. On January 22, 1935, a perma~
nent lease was executed on behalf of one Saiyad Anwarul Rahman. in respect
of the disputed land in the name of the plaintiff. The rent fixed was Rs. 80 /-
per year.
Between the years 1937 and 1939 a bungalow was constructed on
the said land which was named as "Mahmood l\fanzil''. The Raja died in
September, 1939.
The plaintiff appellant filed a suit No. 86 of 1952 in the
Court of the Civil Judge, Aligarh in which the original respondent was the
sole defendant.
The plaintiff's case was that the disputed property belonged
to her and that the Uefendant was inducted as a tenant of the ·k_othi' on and
from 1-3-1947 on a rental of Rs. 60/- p.m., that he paid rent upto May 1950,
but did not pay any rent thereafter, that she served a notice on him to pay the
arrears of rent and deliver vacant possession of the Kothi.
The defendant
respondent pleaded
inter alia
that Raja Sahib. the first Muta\valli of qur1a
No. 1 had acquired the lease of the land and constructed the Kothi with the
waqf fund as Mutawalli of the waqf and therefore it was a \vaqf property,
tha-t after the death of the Raja, he became the Mutawalli of qurra No.
·1
including the Kothi in question and that he occupied the Kathi as a Mutawalli
and not as a tenant.
The Trial Court accepted the case of the defendant, rejected that of the plaintiff and dismissed her suit. Her appeal before the High
Court was dismissed.
Dismissing the appeal by special leave, the Court
HELD : 1. According to Shia law, the waqf is irrevocable after possession is
given to the beneficiaries or the Mutawalli.
The settler divests himself of the
ownership of the property and of everything in the nature of usufruct from, !.he--.1.
n1oment
the waqf is created. In pure
metaphorical sense, ·the
expressioll }
"ownership of God" is used but unlike Hindu law, since conception of a per-
.....
sonal God is not recognised there is no ownership of God or no property
belongs to God in the jural sense, although "the ownership of the property
becomes reverted in Gcxl as he is orginally the owner of all things".
The
property is cons
1idered as transferred to the beneficiaries or the !\.Iutawalli for
the object of the waqf. Strictly speaking, the ownership of the waqf prope.rty
has no jural conception with any exactitude. The corpus is tied down and is
made inalienable.
Only the usufract and the income from the corpus or the
waqf property is available for carrying out the objects of the \Vaqf.
Creation
of waqf for the purpose of maintenance of the waqif's family and their descendants is also a charitable purpose. [894 G-H, 895 A-B]
•
2. A Mutawalli is like a manager rather than a trustee.
The Mutawalli,
-- .
so far as the waqf property is concerned, has to see that the beneficiaries got
the advantage of usufruct. The Mutawalli may do all acts reasonable and proper for the protection of the waqf property, and for the administration of
the waqf.
[895 E, 896 DJ
,>
•
)
-
....

>
l
,.,
\
,
•
• I
•
}
/
I
•
..
FATIMA v. HASAN
887
2{a) A Mutawalli ofi a waqf although not a trustee in the tn1e sen.c;e of the
A
te.rm is still bound by the various obligations of a trustee. He like a trus~ce
or a Person standing in a fiduciary capacity cannot advance bis own interests
or the interests of one class of relations by virtue of the position held by him.
The use of the funds of the waqf for acquisition of a property by a Mutawalli
in the name of his wife would amount to a breach of trust and the property
so acquired would be treated as waqf property. [905 E-G]
Moatrar Raza and Ors. v. Joint Director of Consolidation U.P., Can1p at
B
Barei/ly and Ors., A.I.R. 1970 All. 509 explained.
Mohanunad Qamer Shah Khan v. Mahammed Salama! Ali Khan
A.I.R.
1933, All. 407 over-ruled.
3. The law as regards distribution of distributable income of the waqf property amongst the beneficiaries is that the benefit of a waqf foi a person's "sons
and his children, and the children of his children for ever so long as there are
descendants, is taken per capita, males and females taking equally and
the
children of daughters being included." [896 C-F]
C
Ahn1cd G. H. Ariff and Ors. v. Co1nn1issioner of Wealth
Tax,
Calcutta,
[1970] 2 SCR 19; explained and held inapplicable.
4. Tn the eye of law, according to the concept of Mohammedan law, there
was no legal entity available in whose name the property could be acquired
except the Mutawalli or the beneficiary. Unlike Hindu law, no property could
be acquired in the name of God.
Nor could it be acquired in the name of
any religious institution like the waqf estate.
Necessarily the property had
D
to be taken in the name of one of the living persons. Ordinarily and genera1ly
the acquisition of property out of the \Vaqf funds should have been in the
name of the Mutawalli.
But it did not cease to be a waqf property merely
because it was acquired in the name of one of the beneficiaries. (901 E-G]
5. (a) The burden of proof that a particular sale jg benami and the appa~
rent purchaser is not the real owner always rests ou the person asserting it to be
so.
This burden has to be strictly discharged by adducing legal evidence of
;i definite character which would either directly prove the fact of benami or
E
establish circumstances unerringly '\nd reasonably raising an inference of that
fact.
[9 JO A-BJ
(b) The law relating to benami transactions strictly speaking, cannot, be
applied in all its aspects to a transaction of such a kind. Even if applied there
\Vill be no escape from the position that the real owner of the property was
the Raja in the instant case in his capacity as Mutawalli and the appellant was
a mere benamidar. The property in reality, therefore belong to the \vaqf estate
as concurrently and rightly held by the two Courts below.
[901 G-H, 902 A]
F
Gopeekrist Gosain and Gangaparsaud Gosain, 6 Moore"s Indian Appeals,
53, Bilas Kunwar and Desraj Ranjit Singh and Ors., 42 Indian Appeals 202.
Kerwick and Kerwick, 47 Indian Appeals, 275, Sura Lakslzn1iah Chett~ and
Ors. v. Kothandarama Pillai 52 Indian Appeals, 286 Mt. Sardar
Jahari and
Ors. v. Mt. Afzal Begam, A.I.R. 1941, Oudh, 288, Mt. Siddique Begam
v.
Abdul Jabbar Khan and Ors., A.I.R. 1942, Allahabad, 308, Kalwa Devadattam
and two Ors. v. The Union of India and Ors., [1964J 3 SCR
191
Union of
India v. Moksh Builders and Financiers Ltd. and Ors., (1977] 1 SCR 967 Kanakarathanammal v. V. S. Loganatha Mudaliar and Anr. [19641 6 S.C.R. 1, Jaydayal Poddar (deceased) through 1. rs. and Anr. v. Mst. Bibi Hazra and Ors.,
[1974] 2 S.C.R. 90 and Krishnanand v. The State of Madhya Pradesh [1977]
I S.C.C. 816 referred to.
'
6. In the instant case :-
G
(a). It is not possible to decree the appeal in face of her three
varying
stands in t~e three Courts viz. ( 1) in the .Trial Court-case of acqu1s1tron of
property w;ith her personal money; (2) in the High Court-acquisition of
H
property with the perl;onal money of her husband and (3) in this Courtthe waqf fund inve.sted from time to time became her personal money and
enabled her to acqmre the pro1>0rty.
[912 B-C]
888
SUPREME COURT REPORTS
[1978] 3 S.C.R.
(b) A valid waqf was created by Smt. Sughra Begum.
Except a jlortiod
of money which was to be spent for public, religious or charitable objects the
waqf was primarily of a private nature for the benefit of the settlor's family
and their descendants, which is called waqf-alal-aulad.
The ultimate object
was to spend income, if any, in the service· of the Almighty God. [894 CJ
Abdul Fata Mohammad v. Rasa1naya, 22 Indian Appeals 76 referred to.
B
( c) The evidence is overwhelming on the question as to what was the
c
D
&
F
G
II
source of money for the acquisition of the disputed property, '!ither the land
and Kathi. It came from the waqf fund.
[897 CJ
(d) Though the Raja was vested with the power to fix stipends for his
children and their descendants and for his wives during his life time also, he
was not conferred an absolute power or discretion to fix any stipend for any
beneficiary and no stipend for some beneficiary.
Equality amongst all is a
·golden thread which runs throughout the Mohainmadan law.
It is a chief
trait of that Jaw.
[900 G]
(e) Clause 19 of the last will of the Raja cannot create a title in favour
of the plaintiff and finish the right of the waqf to the property. If the property became the acquired property
of the waqf, a Mutawalli, as the Raja
was, by his own declaration contained in clause 19 of the Will could not make
it a property of the plaintiff appellant.
The recital of fact could be pressed
into service only to lend additional support to the plaintiff's case if she would
have stuck to that case and proved it by evidence aliunde.
[905 A-B]
(f) The concurrent findings of the Courts below that the appellant 'Vas
benamidar on behalf of the waqf does not suffer from any infirmity t0 justify
this court's interference with the said finding.
The burden has been discharged
by the respondent so much so that the finding as recorded could not be assailed.
It was merely attempted to be availed of to support a new case in this
Court. It should be remembered that 'by far the most important test for determining whether the sale 6tanding in the name of one person is in reality for
the benefit of another'-namely the source. whence the purchase money came
has been established beyond doubt. The nature aond possession of the property
after the acquisition was such that it did not lead to the conclusion that it was
not a waqf property and was a property in exclusive possession of the appellant
through her tenants including the respondent. [910 H, 911 A-Bl
(g) In a case of this nature, all the aspects of the benami law including the
question of burden of proof cannot justifiably be applied fully.
Once it is
found, as it has been consistently found, that the property was acquired with
the money of the waqf, a presumption would arise that the property is a
waqf property irrespective of the fact as to in whose name it was acquired. The
Mutawalli by transgressing the limits of his power and showing undue favour
to one of the beneficiaries in disregard to a large number of other beneficiaries
could not be and should not be permitted to gain advantage by this method
for one beneficiary which in substance would be gaining advantage for himself.
In such a situation it will not be unreasonable to say-rather it would
be quite legitimate to infer, that it was for the plaintiff to establish that the
pr01>erlY acquired was her personal property and not the property of the waqf.
[911 G-H, 912 A-Bl
CIVIL APPELLATE JURISDICTION : Civil Appeal
No.
2462
of
1968,
Appeal by Special Leave from the Judgment and Order dated
17-5-1968 of the Allahabad High Conrt in First Appeal No. 13 of
1956.
M. N. Phadke, M. Qamaruddin, (Mrs.) M. Qamaruddin, M. Y.
Omar, N. Aly Khan and V. M. Phadke for the appellant.
' -
•
• )
-
•
·-
....
•
FATIMA v. HASAN ( Untwalia, J.)
889
Lal Narain Sinha, D. P. Singh, S. C. Agarwal, A. Gupta, S. Mohdkawrr. and P. P. Singh for the Respondent.
The Judgment of the Court was delivered by
UNTWALIA, J. This is an appeal by special leave. Bibi Sadcliqa
Fatima, the appellant, was the plaintiff in Suit No. 86 of 1952 filed in
the Court of the Civil Judge at Aligarh in which the defendant was
Saiyed Mohammad Hasan. He was the sole respondent in this appeal
also.
He died during the pendency of the appeal and on his death
his legal heirs and representatiws were substituted as respondents. For
the sake of convenience hereinafter in this judgment by the respondent
would be meant the origi'nal respondent.
One Smt. Sughra Begum was a Shia Muslim Lady.
She was a
resident of Asgharabad in the District of Aligarh. She was possessed
of vast Zamindari and other properties.
On October 6, 1928, she
created a waqf of the entire properties dividing them in three qurras.
Raja Haji Saiyad Mohammad Mahmood Hasan wa15 appointed by the
waqifa as the Mutawalli of qurra No. ·!.
His brother was appointed
the Mutawalli of the second qurra. The waqifa appointed herself the
Mutawalli of the third qurra.
The dispute in this case relates to a
property concerning qurra No. I.
The Raja's first wife was Smt.
Akbari Begum.
She died i'n the year 1931 leaving behind four sons
'111d six daughters.
Raja Sahib, whew he was about 50 years of age,
took the plaintiff as his second wife in the year 1933. The plaintiff.
A
B
c
D
at the time of her marriage with the Raja, was a young lady of seventeen. Raja died in September, 1939. On January 22, 1935, a permanent lease was execu"od on behalf of one Saiyed Anwarul Rahman in
E
respect of the disputed la'nd in the name of the plaintiff.
The rent
fixed was Rs. 80/- per year.
Bctwocn the years 1937 and 1939 a
Kothi (Bungalow) was constructed on the said I.and, which was named
as 'Mahmood Manzi!'. The suit property in this litigation is the said
Kothi together with the land appertaining to it.
Tn short the plaintiff's case is that the disputed proP'er!y belongs to
her.
The defendant was ihducted as a tenant of the Kathi on and
..iili.. from !st of March, 1947 on a rental of Rs. 60/- per month. He paid
,~ rent upto May, 1950 but did not pay any rent thereafter. In the year
F
(
1952, the plaintiff served a notice on the defendant to pay the arrears
of rent and deliver vacant possession of the Kothi.
Th·o defendant,
4
in his reply, refuted the claim of the plaintiff and asserted that the
Kothi did not belong to her nor ·was he a tenant of the same. Hence
the appellant instituted the suit for realisation of arreans
of rent,
damages and recovery of possession of the suit property.
The respondent, inter alia, pleaded that Raja Sahib, the first Mutawalli of
qurra No. I, had acquired the lease of the land and constructed the
•
G
Kothi with the waqf fund as Mutawalli of the waqf. It was a waqf
property.
After the death of the Raja, the respondent became the
Mutawalli of qurra No. I including the Kothi in question. He occuH
pied the Kothi as a Mutawalli and not as a tenant.
The Trial Court
accepted the case of the defendant, rejected that of the plaintiff and
6-329SCI/78
A
•
890
SUPREME COURT REPORTS
[1978] 3 s.c.R.
dismissed her suit.
appeal.
She has
special leave.
The Allahabad High Court has dismissed her
preferred this appeal in this Court on grant
of
Shri M. N. Phadke advanced a vcry strennous argument in support of this appeal.
Shri Lal Narayan Sinha combated his argument
on behalf of the respondent.
It would be convenient to refer to
B
some more facts and facets of the case from the pleadings of
the
?
parties and judgments of the Courts below before enunciating and
·I
c
D
E
'
G
H
enumerating the submissions made on their behalf.
The case pleaded in the plaint by the appellant was like this,
Raja Sahib out of great love for the plaintiff "used to pay her a handsome amount every month as pin-money and also a good deal of money
occasionally." The plaintiff, with the object of constructing a Kothi,
look on lease the disputed land measuring about 4 bighas and had
been paying the annual rent of Rs. 80/- since the execution of
the
lease.
She pleads in para 4 :-
•
"After the execution of the said lease, the plaintiff with
her personal fund built a kothi and the out houses on the
•
land mentioned in paragraph No. 3 above and named it us
Mahmood Manzi! after the name of her husband. The construction of this Kothi had been completed by May 1938,
after which the plaintiff herself used to stay in that Kothi
whenever she came from J\sgharabad to Aligarb."
The plaintiff had only one daughter born to her out of the wedlock
with the Raja.
She is Smt. Abrar Fatima.
She was married on
the 25th May, 1950 to one Saiycd Mohammed
Raza Ali Khan.
The defendant was quite obedient and faithful t.o the plaintiff until
the marriage of her daughter.
But after the said marriage, he
gradually turned hostile and thereupon the plaintiff mostly Jived with
her daughter.
According to the respondent's case in his written
statement the lease was taken by Raja Sahib and the sum of Rs. 786/-
spent on 'Nazrana' etc. for taking the lease was pa\d by him from the
income of the waqf property and he constructed the Kothi from the
wakf fund of Asgharabad estate.
He had neither any money of his
own to invest in acquisition of the property nor was the property acqui-.....
red by the plaintiff with her personal fund.
~
The appeJlant was examined on com1niss-ion as a witness to sup-'-,__ f
port her case at the trial.
Jn her examination··in-chicf, she
stated
~
that her husband used to give her Rs. 500/- per month as pin-money
besides, meeting her expenses regarding food and clothing.
Over
and above this, he used to send money on the occasions of Id and
Bakrid and also gave her money whenever she de1nanded.
She constructed the Kothi at Aligarh by investing about Rs. 20.000/-.
In
other words she meant to convey in her examination-in-chief that she
had acquired the land and constructed the Kothi out of the savings she
had from the various amounts of money given bv the .. Raja monthly
or from time to time.
At a later stage of her depos11ton (probably
in cross-examination) she demolished her case and claimed to 1'e in
possession of' Rs. 50,000/- at the time of the death of her husband,
l
• ' \
•
FATIMA v. HASAN (Untwa/ia, J.)
891
which sum was her total savings out of the money paid to her monthly
or from time to time by the _Raja.
Thus in her evidence she could
not explain as to out of which personal fund she claimed to
have
acquired the disputed property.
The Civil Judge framed for trial several issues out of which issues
1 and 5 were in the following terms :
"1. Whether the plaintiff is the owner of the property in
suit as alleged and is she entitled to the
possession
claimed ?
5. Whether the defendant possesses the disputed property
as the 'Mutawalli' as alleged by him ?"
The defandant's case was that the 'patta' was obtained by the old Raja
under the influence of her young wife benami in her name though it
was acquired with the waqf fund.
The Raja, as Mutawalli, was the
A
B
c
real lessee of the land.
He had constructed the Kothi ,out of the
income of the waqf property.
A Mutawalli is not an owner of the
waqf property, but whatever property of the waqf was
there from
before or acquired subsequently must, ordinarily, be in the name of
D
the Mutawaili.
A property could be acquired in the name of any
beneficiary, like the plaintiff, but she would be merely a benamidar
of the Mutawalli and the property will be a waqf property.
The
Civil Judge has noted in his judgment that the plaintiff did not put
forth a plea that the Kothi was built by the late Raja out of his personal money and that she was its owner, on the basis of the equitable
doctrine of advancement. He has said further :-
E
"Thus the only point on which the parties were at issue
was with respect to the source of the money out of which
the patta w.as obtained and the building constructed and the
plaintiff could succeed only if she proved that she had obtained the patta and built the· kothi out of the money given
to her by her late husband as pocket expenses, etc."
The Civil Judge also remarked :-
}---
"Had she stated that she built the lwthi out of the money
F
/
which she had saved, that would have been consistent with
her allegations in the plaint.
But she admitted that the
•
whole of her savings were still with her and that out of them
G
she had spent a little when she filed the present suit."
The Trial Court, thereafter, considered the voluminous documentary
evidence in the light of the oral evidence adduced and came to the
conclusion that the plaintiff did not provide any money either for the
lease of the land or for the construction of the Kothi thereon and that
the money for both the purposes was provided out of the waqf estate.
H
Hence it was held, while deciding issues 1 and 5, that the plaintiff was
not the owner of the Kothi in suit and the defendant was in possession
of it in his capacity as the successor Mutawalli.
892
SUPREME COURT REPORTS
Ll978) 3 S.C.R.
A
It would be advantageous to note at this stage the stand taken by
the appellant in the High Court in her Memo of Appeal as also in
argument.
On perusal of the grounds set out in the Memorandum
of Appeal, especially ground Nos. 6, -s, 9, 11, 13 and 27, it would
appear ilia! lhe case made out therein was that the Raja had his personal money kept in the waqf estate treasury alongwith the waqf money.
The amount spent in constructing the Kothi was mostly taken out of
B
the treasury from his personal fund with the intention of making his
wife the owner of the property even though the doctrine of advancement did not apply in India, and tllat the observation of the learned
Civil Judge that the plaintiff failed to prove tllat she did not provide
any money out of her personal fund was wholly irrelevant for the decision of issue No. 1.
In argument, however, a stand like the one
taken in the Trial Court was reiterated but consistently and concurrentC ly rejected because the evidence in favour of the defendant's case was
so overwhelming to show that the lease had been taken and the Kathi
had been constructed with the money coming out of the waqf fund
that no other view was reasonably probable to be taken. At one place
in its judgment the High Court says-"Counscl for the appellant has
stron~ly relied on these documents in proof of the fact that the Kothi
D
E
G
H
was constructed with her money and belonged to her."
In the teeth of the overwhelming evidence the appellant was obliged
to take an entirely new stand in her petitlon for special leave and in
the argument before us.
In paragraph 23 of the petition it
was
stated
"That the case of the applicant had been that the lease
was obtained with the applicant's funds and that she had
constructed the Kathi with her own monq and it was aloci
her alternative case put forward before the Hon'ble High
Court that even if it be assumed that the moncv utilised for
constructing the Kathi did not pass directly from the plaintiff's hand' and even if it be the ·finding of the Court that the
money so utilised had proceeded from Raja
Mahmudul
Hasan then on the admitted case of the defendant that this
fund was waqf fund, the plaintiff's claim ought to have been
decreed inasmuch as on the ground that the usufruct or the
profit of the waqf property though arising out of the waqf
property did not belong to waqf as waqf property but
it
was by its very nature the property of the beneficiary and
in the absence of any evidence to the contrary Raja Mahmoodul Hasan
held
that
those
funds
for
the
beneficiaries· and the amount spent by him in the construction
of the Kothi should be the money belonging to the applicant."
Mr. Phadkc made the following submissions :
(1) The Raja intended to acquire the land on lease and
construct the Kathi for the plaintiff by investing from
time to time money taken out of the waqf
estate
treasury, which had the effect of disbursement and
payment of the money by the Mutawalli to his wife,
•
/
•
'
•
~ -
~
• I ,
•
• -
~-
• \
•
•
FATIMA v. HASAN (Untwalia, J.)
893
the beneficiary, for the purpose of t?e acq:iisition ~f
the Kohi.
The source of money m that event 1s
immaterial.
(2)
(3)
The intention of the Raja to provide a separate
Kothi to the plaintiff evidenced by numerous documents taken and standing in her name must be respected.
The Raja went on giving money in driblets for construction of the Kathi by taking out the money from
the waqf fund from time to time. It was open to
him to do so in accordance with clause 18 of the
waqf deed Ext. A-2.
( 4) The intention of the Raja is further fortified by the
recital in his Will Ext. 15.
(5) That there is a number of circumstances in support
of the contentions aforesaid.
(6)
(7)
(8)
The rules of pleading should not
be too strictly
applied in India and no party should be defeated on
that account when both sides adduced evidence and
proceeded to trial of the real issues in the case with
their full knowledge and understanding.
That there is no substantial variance in the case
made out in the pleadings and the evidence and in
argument either in the Courts below or in this
Court.
The burden of proof to displace the ostensible title
of the appellant and to show that she was a
benamidar was on the respondent.
In absence of
any clinching evidence on either side, the ostensible
title prevails.
( 9) Although the doctrine of advancement does not apply
in India, the Mutawalli being
the
owner of the
waqf property had full and unlimited power of disposal over its usufruct and income .
Mr. Lal Narayan Sinha, while refuting the submissions made on
behalf ,of the appellant, contended that it is a settled law that the
question whether a particular transaction is• benami or not is purely
one of fact and this Court in exercise of its jurisdiction under Article
136 of the Constitution does not, ordinarily and generally, review the
C9ncurrent findings of the Courts below in that regard.
Counsel
6Ubmitted that the Courts below had correctly applied the Muslim
law applicable to Shias in respect of the waqf property and its income.
They have rightly come to the conclusion that the suit property appertained to the waqf. It was clear, according to the submisA
B
c
D
E
II
G
H
B
c
D
II
.,
G
H
894
SUPREME COURT REPORTS
[1978] 3 S.C.R.
sion of Mr. Sinha, that the parties went to trial to prove their respective cases as to whether the property had been acquired with
the
personal funds of the plaintiff or those of the waqf.
The plaintiff's
case failed in view of the overwhelming evidence against her and she
should not be permitted to make out an entirely new case in this
Court. He also contended, firstly, that the theory of onus-probandi is
not strictly applicable when both parties have adduced evidence; in
such a situation it becomes the duty of the Court to arrive at the true
facts on the basis of reasonable probabilities.
Secondly, in the instant
case the strict tests to prove the benami character of the transaction
cannot be applied, as, to do so will be in the teeth of the well-settled
principles of Mohamedan law in relation to waqfs.
We proceed to examine the correctness of the rival contentions of
the parties but not exactly in the order it has been stated above.
It is undisputed in this case that a valid waqf was created by Smt.
Sughra Begum.
It is further indisputably clear from the waqf deed
that except a port.ion of money which was to be spent for public, religious or charitable objects the waqf was primarily of a private ria1ure
for the benefil of the settlor's family and their descendants,
which
is
called wakf-alal-aulad.
The ultimate object of the wakf
was to spend income, if any, in the service of the Almighty
God.
In Abdul Fata Mahomed v. Rasamaya (1') their Lordships of
the Privy Council held that the gift to charity was illusory, and that
the sole object of the settlor was to create a family settlement
in
perpetuity. The waqf of this kind
was, therefore, invalid. This
decision aforesaid caused considerable dissatisfaction in the Mohamedan community in India. This led to the passing of the Mussalman
Wakf Validating Act, 1913 which was made retrospective in operation by a subsequent Act of 1930.
In view o'f the Validating Act
of 1913 the validity of the wakf was beyond the pale of challenge.
Altl1ough in respect of the law applicable to waqfs there is some
difference in regard to some matters between the Shia law and the
various other schools of Mohamedan law applicable to Sunnis, in
very many fields the law is identical.
After the Validating Act of
1913, on the basis of the law as it prevailed even before, creation of
a waqf for the purpose of the maintenance of the members of
the
waqif's family and their descendants is also a charitable purpose. We
now proceed to notice some salient features of the law as applicable
to waqfs and especially .ci~ the Shias.
Tyabji's Muslim Law, Fourth editi.on, Chapter X deals with waqf.
According to Shia law the waqf is irrevocable after possession is given
to the beneficiaries or the Multawalli.
The settlor divests himself
of the ownership of the property and of everything in the nature
cif
asufruct from the moment the wakf is created. In purely metaphorical sense the expression "ownership of God" is used but unlike Hindu
Law, since conception of a persopal God is not recognized, there is no
--------
(I) 22 Indian Appeals, 76.
•
-
} ' -'
• .
- )-.
i
.. ,
\
•
FATIMA v. HASAN (Untwalia, J.)
895
ownership of God or no property belongs to God in the jural sense,
although "the ownership of the property becomes reverted in God as
he is originally the owner of all things" (vide page 523).
The Shia
authorities considered the property as transferred to the beneficiaries
or to the c}bject of the waqf.
Strictly speaking, the ownership
of
t~e waqf property has no jural conception with any exactitude.
The
cvrpus is tied down and is made inalienable.
Only the usufruct
a1 •d the income from the corpus of _the waqf property is available for
carrying out the objects of the wakf.
The Sharaiu'l-lslam says
"Waqf is a contract the fruit or effect of which is (a)
w tie up the original and (b) to leave its usufrucr free;" "the
waqf or subject of appropriation (corpus) is transferred, so
to become the property of the mowlcoof alehi, [or 'person
on whom the settlement is made'] for he has a right to the
advantage or benefits (usufruct) to be derived from it." (vide
page 494.
Tn fhe foot note at the same page occurs a passage which runs thus
"But it should not be overlooked th~t question about
ownership of property after
dedication,
refers merely ,to
scientulla juris, supposed to remain undisposed of although
entire usufruct, (all benefits. & C.) are assigned
away.
Question in whom property rests, therefore, entirely academical.''
Mutawalli is like a Manager rather than a trustee
(see
page
498 J.
The Mutawalli, so far as tl1e waqf property is concerned, has
to sec that the beneficiaries got the advantage of usufruc;.
We have
already pointed out that under the Shia law the property does not
remain with the waqif.
It is transferred to God or to the beneficiaries.
At page 554 of Tyabji's famous book it is stated :-
"The support and maintenance of the waqfs family,
& c. would seem under the Act to be deemed a purpose recognized by the Muslim law as religious, pious or charitable :
s. 2.
This view was put forward by Ameer Ali, J., with
great learning in his dissenting judgment in Bikani Mia's
case.'·
Section 527 at page 593 runs thus :
"The mutawalli has no ownership, right or estate in the
waqf proP',rty: in that respect he is not a trustee in the
technical sense : he holds the property as a manager for fulfilling the purpose of the waqf."
A contrary statement of law at page 202 of Mulla's Mohamedan Law,
seventeenth edition based on the decision of the Allahabad High Court
in Mohammad Qamar Shah Khan v. Mohammad Salama! Ali Khan(')
(I) A.LR. 1933 Allahabad 407.
A
B
c
].)
E
F
G
H
A
B
896
SUPREME COURT REPORTS
[1978] 3 S.C.R.
to the e~ect that_ "the muta~alli is not a mere superintendent or manager but is pracUcally speaking the owner" is not a correct statement
of law. In a later Full Bench decision of the same Court in Moattar
Raza and others v. Joint Director of Consolidation, U.P. Camp at
Bqreilly and others(') while over-ruling the earlier decision, it has been
said at pages 513-14 :-"the legal status and position of a mutawalli
under a waqf under the Musalman Law iis that of a Manager or Superintendent."
The general powers of the Mutawalli as mentioned in
section 529 of Tyabji's book are that he "may do all acts reasonable
and proper for the protection of the wakf property, and for the administration of the waqf."
It will be useful to point out the Law as r~gards distribution of
c distributable income of the waqf properties amongst the beneficiaries
as mentioned in the various sub-sections of section 545 at pages 606608. Unless a different intention appear, sub-section (4) says:-
D
G
"The benefit of a waqf for a person's "sons and his children, and the children of his children for ever so long as there
are descendants, iis taken per capita, males and fomales taking
equally a'nd the children of daughters being included."
Atrention must be called to an important statement of law in the
well-known authoritative book of Mohamedan Law by Ameer Ali,
Vol. 1, fourth edition, page 4 72. It runs thus :-
"It is lawful for a mutawalli with the income of a waqf
to erect shops, houses, & c., which may yield profit to the
waqf, as all this is for the benefit of the waqf. All properties purchased by the mutawalli out of the proceeds of the
waqf become part of the waqf and are subject to the same
legal incidents as the original waqf estate."
Mr. Phadke cited the decision of this Court in Ahmed G. H. Arifj
& Ors. v. Commissioner of Wealth Tax, Calcutta(") and contended
that the right of the beneficiaries to get money out of the income of
the waqf property for their maintenance and support was their property.
In our opinion the case does not help the appellant at all in
regard to the point at issue. A hanafi Muslim had created a wakf-alalaulad and on a proper construction of the relevant clauses in the waqf
deed it was held that the aliquot share of the income provided for the
beneficiaries was not meant merely for their maintenance and support.
But even if it was so it would be an asset within the meaning of s. 2(a)
of the Wealth Tax Act, 1957. The definition of the term 'asset', was
very wide i'n the Wealth Tax Act.
The share ot the income which
a beneficiary was getting under th~ said waqf was assessable to income
tax and following the particular method of evaluation it ~as hel_d to
be an asset for the J'.lllrposes of the Wealth Tax. The quest10n _at issue
H
in the present case is entirely different as will be shown and discussed
(I) A.T.R. 1970 Allahabad, 509.
(2) (1970] 2 S.C.R. 19.
•
• -
•
•
•
,
..
- ...
, .
·,..._.--."j,'_...---- -,..
. ,_.;.
. FATIMA v. HASAN (Untwalia, !.)
897
.......
'
-
$
•
----- ---
---
-
__ ,,,__.., -.
· hereinafter. But in support of what we have said above in relation to
A I
the waqf property abd the position of the Mutawalli we may quote a
. ..__ ' few lines from this judgment also which am at page 24 :-
•
'"As mentioned bcfor~; 1...h0 moment a wakf is created, all
rights of property pass out of the Wakif and vest in the
Almighty. Therefore, th~ Mutawalli has no right in the property belonging to the wakf, He is not a trustee in _the technic.al sense. his position being merely that of a supenntenckilt
or a manager."
It would be convenfo!l.i' to briefly discuss the questions of fact and
the evidence in relation thereto before we advert to the discussion of
·.some other questions of law argued before us on either side as those
principles of law will be better appreciated and applied in the backgro~d of the facts of this case.
·
'··-
.
As has been stated already the evidence is overwhelming on the
question as to what was the source of money for the acquisition of the
disputed property, either the land or th~ kothi. It came from the
waqf fund.·· This position could not be seriously challenged before
us.
What was argued will be alluded to a bit later. · We ·may just
cursorily refer to some of the pie.ces of the evidence on the question
aforesaid. Ext. A-35 is a written direction by the Raja to Mahmud
Syedullah Tahvildar directing him to debit a sum of Rs. 741/- to his
personal account for the acquisition of the plot in question. The
details of the expenses and the Nazrana money . are given therein.
The payment was from the funds of the waqf estate. But the Raja
made a fcable and futile attempt to get this debit entry made as a
repayment of the loan money said to have been advanced by him to
the waqf estate. The High Court as also the Trial Court has rightly
remarked that the entry like Ext. A443 was got made by the Raja in
the account books of the waqf estate as a fictitious countervailing
entry in his attempt to show that some of the sums of money which
he had withdrawn from the waqf estate were on account of the repayment of his alleged Joans.
The High Court has rightly pointed out ·
that they were all fictitious entries.
Mr.
Phadke endeavoured to
show that the approximate gross income of the waqf estate was not
Rs. 43,515/- as is shown by the High Court but it was in the
neighbourhood of Rs. 58,000/-. We shall accept it to be so. Thus
the: net distributable income at the disposal of the Raja was about
Rs. 30,000/- instead of Rs. 15,510/- mentioned in· the judgment of
the High Court. There were 13 beneficiaries in qurra no. 1 of which
the: Raja was the Mutawalli. In that capacity he was
getting a
monthly allowance of Rs. 70/- only from the estate account.
He
had no other personal property or source of income from which he
could advance any loan to the waqf estate.' Nor could it be shown
that the waqf estate at any point of time was in need of any loan
from. t_he Raja. Therefore, the attempt of the Raja to put a show of
acqumng the land in the name of his young wife out of his personal
money was a very crude attempt to disguise the real source of that
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
898
SUPREME COURT REPORTS
[1978] 3 s.c.R.
money. The concurrent finding's of the Courts below that the expenses
for the acquisition of the lease were incurred from the waqf esfate
funds could not be successfully assailed.
The High Court has referred next to the question of payment of
rent of the land to the lessor. The plaintiff produced six rent receipts.
Exts. 13 and 14 were of the year 1952 when disputes between the
parties had started.
As regards four other receipts the High Court
was inclined to believe the explanation of the .defendant that the
plaintiff had surreptitiously obtained their possession.
On the other
hand, the defendant filed four rent receipts of the period when the
Raja was alive.
Since the lease had been taken in the name of the
plaintiff, naturally all the receipts were in her name. The High Court
has also referred to the satisfaction of a decree for rent obtained by
the lessor in a suit instituted against the plaintiff as well as the defendant and has come to the conclusion that the entire decretal amount,
the expen5es of the auction sale and the costs were deposited in the
Court out of the waqf fund.
~
Then comes the evidence regarding the construction of the Kothi.
All documents for obtaining permission from the Municipal Board
and for electric connection etc. obviously stood in the name of the
plaintiff as the lease was standing in her name. As in the Higbi Court,
so here, Mr. Phadke strongly relied upon those documents to show
that the Kothi was constructed for and on behalf of the plaintiff. As
already stated the stand in the High Court was that it was constructed
with her money. · Here it was a completely different stand.