# THAKUR MOHD. ISMAIL v. THAKUR SABIR ALI

- **Citation:** [1963] 1 S.C.R. 20
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** P. B. Gajendr.Ag.Adkar, A. K. Sarkar, K. N. w .ANOHOO
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thakur-mohd-ismail-v-thakur-sabir-ali-2543
- **Pages:** 27

## Headnote

Wakf-alal·aulad Ezecuted by Oud.h talukdar--1/ offends rule
against porpituity-Oudh JC1tate• Act. 1869 (1of1869), as. 11,
12, 18-Mussalman wakf Validating Act, 1913 (6 of 1913),
••. a, 4.
A Hanafi Mussalman, owner of a talukdari estate
governed by the Oudh Estate, 1869, executed in 1925 a deed
of walrf-alal-aulad, for the benefit of himself, his family and
descendants generation after generation. He was to be the
first mutwalli and thereafter his second son and after him his
·other sons and descendants according to the· rule of prim0genitu.re.
Certain amounts were also to be paid to charities and
'
for the maintenance of members of his family. The remainder
was to go to the mutwalli. After his death the suit, out of
which the present appeal arises, was instituted by the eldest
son of his predeceased <'ldcst son claiming succession to the
estate according to male lineal primogeniture under the Act.
His case mainly was that the wakf deed was invalid in view of
ss. 11 and 12 of the Act. The trial court found that the deed
)
'
-
l S.C.R.
SUPREME COURT 'P.'RPORTS
21
was genuine and valid and dismissed the suit. On appeal
the High Court, while upholding the finding of the trial court
that the wakf deed was a genuine document, dismissed the
suit on the ground that the deed contravened s, 12 of the
Act.
Section 11 of the Act provided that the estate conferred
on a talukdar was an absolute estate he having the right to
transfer or bequeath it in any manner he liked. Section 18
dealt with gifts to religious and charitable uses.
Section 12
0f the Act provided as foliows:-
"No transfer or bequest under this Act shall be valid
where by the vesting of tbe thing transferred or bequeathed.
may be delayed beyond the lifetime of one or, more persons,
living at the decease of the transferee or testator and the
minority of some person ·who shall be in existence at the
expiration of that period, and to whom, if he attains full age,
the thing transferred or bequeathed is to belong."
Held, (Gajendragadkar and Wanchoo, JJ.), the Oudh
Estates Act, 1869, was a complete Code by itself so far as the
holders of talukdari estates were concerned and the rights of
such holders must be determined and circumscribed by the
provisions of the Act.
Although a wakf-alal-aulad was a gift in favour of God,
it could be valid only if it came within s. 11 of the Act.
Section 18 of the Act merely provided the procedure for
making gifts to charitable and religious uses and the power to
make a gift was to be found in s. 11.
In any case, such a
gift was subject to the provision of s. 12 of the Act.
The words 'religious or charitable uses' in s. 18 of the
Act which applied to talukdars of all religious, properly
construed, could not mean that provision for one's children
would be provision for religious and charitable use.<.
A wakf,
such as the one in the present case, in which the beneficiaries
mainly were the descendends of the wakf wonld not, therefore,
fall withins. 18 of the Act. Treated as a gift to God, He would
have no beneficial ownership in it for generations to come.
Sections 3 and 4 of the wakf Validating Act 1913, could not
alter the position.
'
Rikani Mis v. Shukla! Poddar, (!R93]T. L. R. 20 Cal.116,
considered.
Abdul Ji'ata Mohamed lslia.T' v. 7111.ssomoy nhnr Ohondhr.y,
(IR94) L. R. 22 T. A. 76, referred to.
The word 'vestin.g' in s. 12 of the )\ct mean absolute
vestinQ', meaninQ.' there:bv that the person in whom the propertv
vested could deal with it and its usufruct as he liked.
Eve1;
\hqugb, therefore, the property, in the inst.~nt cas '• might ves\
I9dt
Thakur Mohd.
Ismail
v.
Thak1l1 S,,bir Ali
1961
Th11kur Mohd.
Ismail ..
Thakur S1bir Ali
Wqnc~{!" J.
22
SUPREME COURT REPORTS [1963]
in God immediately on the creation of wakf-alal-aulad, the
absolute vesting which s. 12 contemplated would be postponed
beyond the period prescribed by it.
The wal:f-nl al 0 a7'la.rl was,
therefore, hit bys. 12 of the Act and must fail.
Per Sarkar, J.-The relegious and chari

## Text

_Characters 0–39,907 of 53,789. This is a partial read: ask again with offset=39907 for what follows._

1962
St•i. of Utt,,,.
Pradesh
••
Dr. Viio.1 A.none/
Ma11oraj
SubboRaoJ.
Muriholk.,J.
1962
M01e1a IO.
20
SUPREME COURT REPORTs (1963]
cedure at this very late stage, in view of the foregoing reasons.
In the result, we hold that the order of tho
High Court is correct. Tho appeal fails and is diHmissed with costs.
MunHOLKAii, J.-I agree with my learned
brother that the appeal should be dismissed for the
reasons stated in his judgment. I, however, express
no opinion on the quetion regarding the ma.in ta.inability of the appeal. under the Letters Pa.tent
against the decision of a single Judge in a case of
this kind.
Appeal diltm~.
THAKUR MOHD. ISMAIL
v.
THAKUR SABIR ALI
(P. B. GAJENDR.AG.ADKAR, A. K. SARKAR and
K. N. w
.ANOHOO, J J.)
Wakf-alal·aulad Ezecuted by Oud.h talukdar--1/ offends rule
against porpituity-Oudh JC1tate• Act. 1869 (1of1869), as. 11,
12, 18-Mussalman wakf Validating Act, 1913 (6 of 1913),
••. a, 4.
A Hanafi Mussalman, owner of a talukdari estate
governed by the Oudh Estate, 1869, executed in 1925 a deed
of walrf-alal-aulad, for the benefit of himself, his family and
descendants generation after generation. He was to be the
first mutwalli and thereafter his second son and after him his
·other sons and descendants according to the· rule of prim0genitu.re.
Certain amounts were also to be paid to charities and
'
for the maintenance of members of his family. The remainder
was to go to the mutwalli. After his death the suit, out of
which the present appeal arises, was instituted by the eldest
son of his predeceased <'ldcst son claiming succession to the
estate according to male lineal primogeniture under the Act.
His case mainly was that the wakf deed was invalid in view of
ss. 11 and 12 of the Act. The trial court found that the deed
)
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l S.C.R.
SUPREME COURT 'P.'RPORTS
21
was genuine and valid and dismissed the suit. On appeal
the High Court, while upholding the finding of the trial court
that the wakf deed was a genuine document, dismissed the
suit on the ground that the deed contravened s, 12 of the
Act.
Section 11 of the Act provided that the estate conferred
on a talukdar was an absolute estate he having the right to
transfer or bequeath it in any manner he liked. Section 18
dealt with gifts to religious and charitable uses.
Section 12
0f the Act provided as foliows:-
"No transfer or bequest under this Act shall be valid
where by the vesting of tbe thing transferred or bequeathed.
may be delayed beyond the lifetime of one or, more persons,
living at the decease of the transferee or testator and the
minority of some person ·who shall be in existence at the
expiration of that period, and to whom, if he attains full age,
the thing transferred or bequeathed is to belong."
Held, (Gajendragadkar and Wanchoo, JJ.), the Oudh
Estates Act, 1869, was a complete Code by itself so far as the
holders of talukdari estates were concerned and the rights of
such holders must be determined and circumscribed by the
provisions of the Act.
Although a wakf-alal-aulad was a gift in favour of God,
it could be valid only if it came within s. 11 of the Act.
Section 18 of the Act merely provided the procedure for
making gifts to charitable and religious uses and the power to
make a gift was to be found in s. 11.
In any case, such a
gift was subject to the provision of s. 12 of the Act.
The words 'religious or charitable uses' in s. 18 of the
Act which applied to talukdars of all religious, properly
construed, could not mean that provision for one's children
would be provision for religious and charitable use.<.
A wakf,
such as the one in the present case, in which the beneficiaries
mainly were the descendends of the wakf wonld not, therefore,
fall withins. 18 of the Act. Treated as a gift to God, He would
have no beneficial ownership in it for generations to come.
Sections 3 and 4 of the wakf Validating Act 1913, could not
alter the position.
'
Rikani Mis v. Shukla! Poddar, (!R93]T. L. R. 20 Cal.116,
considered.
Abdul Ji'ata Mohamed lslia.T' v. 7111.ssomoy nhnr Ohondhr.y,
(IR94) L. R. 22 T. A. 76, referred to.
The word 'vestin.g' in s. 12 of the )\ct mean absolute
vestinQ', meaninQ.' there:bv that the person in whom the propertv
vested could deal with it and its usufruct as he liked.
Eve1;
\hqugb, therefore, the property, in the inst.~nt cas '• might ves\
I9dt
Thakur Mohd.
Ismail
v.
Thak1l1 S,,bir Ali
1961
Th11kur Mohd.
Ismail ..
Thakur S1bir Ali
Wqnc~{!" J.
22
SUPREME COURT REPORTS [1963]
in God immediately on the creation of wakf-alal-aulad, the
absolute vesting which s. 12 contemplated would be postponed
beyond the period prescribed by it.
The wal:f-nl al 0 a7'la.rl was,
therefore, hit bys. 12 of the Act and must fail.
Per Sarkar, J.-The relegious and charitable uses men·
~ioned in s. 18 of the Act were not such as are contemplated
in English law only. The Act contemplates;a transfer by way
of Wakf as a transfer intervious such a transfer would be a gift
which is permitted by s. l l of the Act.
The wakf, in the instant case, was valid under ss. 3 and
4 of the Mussalman Wakf Validating Act, 1913, and it was
not correct to say that under it the usufruct was transferred to
unborn discendants.
Under the Mohamedan law a u•akf is a
gift to charity and everything vests in god immediately on the
declaration of wa.k/ so that the profits may revert to °" he
applied for the benefit of mankind.
Since the passing 0f the wak/ Validating Act, 1913, a
1vak.f-alal-au,lad was as much a 'lvakf as any other variety of
and its subject-matter vested immediately on its creation in
God, for the benefit of mankind, not as a trustee but as the
owner. The descendant of the walrf acquired no vested interest
in the usufruct of the wak/ properties. The vesting of the
property not being postponed at all, there was no contravention of s. 12 of the Act.
CIVIL APPELLATE JURISIDICTION:
Civil Appeal
No. 256 of 1959.
Appeal from the judgment anc.l clecree dated
.Fobruary 22, 1954, of the Allahabad High Court
(Lucknow Bench) at Ltwlmow in T<'irst Civil Appeal
No. 50 of 1946.
S. P. Sinha and Remeshwar Nath for the
appellant.
0. K. Daphtar?J, Solicitor General of India,
]i]. U<l,ayarathnam and R. S. Sh1tlola, for respondent
No. I.
1962.
March
26.
The
.Judgment
of
Gajendragadkar ancl Wanchoo, .TJ., was delivered
by Wanchoo, .T.
Rarkar, J., delivered a separate
Judgment.
WANOIIOO, ,J.-This is a defendant's appeal on
a n~rtifioatA want.ed by the Allahabad High Court.
. _,
I
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I S.C.R.
SUPREME OOURT REPORTS
23
The suit was brought by Thakur Sabir Ali plaintitfresponcfout for possession.
~l'he following pedigree
table (omitting the unnecessary irnmes) whid1 is not
in dispute, may be set out to a.ppre~iate the caRe of
the plaintiff:-
----~-
I
Nabi Baksh
(<lied in 1890)
I
First wife
I
I
Amir Baksh
(<liecl in l8fi7)
I
I
Asghar Ali
( dif'd in I 037)
I
f?n.tch Mohd.
(diNl ill 18HO)
. --
Second wife
l
---·---
1
I
I
I
I
I
I
Fatima Nasirali Aeysha Mohd. Mohd. Mohd. Bihi
Bibi
I ·
Bibi
lTmar
D-3 Sabirali
D-2
D-1
Ali
Ismn.il Zainah
D-5
H-H
I>-7
(now
n.ppollant)
The case of the plaintiff was that Thakur Amir Baksh
owned considerable property known as 'fiprahn.
Estate in the district of Bahraich at the time of the
annexation of Oudh. He died in 18!)i and was succeeded by his son Thakur Fateh Mohd., who WM subsequently recognised by the Government
a1-1 the
talukdar of tho Tipraha Estate. Thakur 1',akh l\fohd.
died issueless and on his death 1
1hakur Nabi Baksh
eucceede~ him as the t.11.lukda.r under t.hc family
om1tom ~nd under tho provisions of the Outlh
Estates Act, No. l of 1860,
(hc~roinafter ea.lle<l th•~
Act). On the death of Thakur Nabi Baksh thP
estate passed to his only son Asghar Ali, who in bis
Jifo time acquired certain other propcrt.ies which
196!
Thakur Mn'hd.
/smnil
v.
Thakur Sabir .hli
W aru:hon .1.
1161
Tlrakur AtoM.
/amttil
v.
1·haku1 Sabir Ali
fVanchoo J.
24
SUPREME COURT REPORTS [1963]
were hoth talukdari and non-talukdari in nature.
In Angnst, I 925, Thakur Asghnr Ali executed a deed
of wakf.alal-aula<l by moans of which h{1 created a
wakf of his entire property for tho benefit ofhimso!f,
his family and descendants generaticm after genera·
tion_
He was to be the first mutwalli for his lifetime and thereafter his son Thakur Mohd. Umar,
and after him, his other sons and then his other
descendants selected
according to the rulo of
primogeniture were to be mutwallis. The wakf deed
provided that some amounts would be paid to chari·
ties and some as maintenance allowance to the
members of his family generation after generation,
the remainder going to the mutwalli.
Asghar Ali
died in February, 1937, leaving behind properties in·
eluded in Schedules A to I appended to the plaint.
Disputes arose thereafter about succession to and
possession of his properties.
Mohd. Umar claimed
to be entitled to the entire property under the wakf
deed of August, 1925, while the plaintiff, being the
eldest son of the eldest aon Nasirali who had died in
the lifetime of his father Thakur Asghar Ali claimed
succession to the property under the rule of lineal
primogeniture. This le<! to protracted litigation in
tho Hownue Courts 1t11d nvn1tuallv an order for
mutation was passer] in favour ,;r Thakur Mohcl.
lTm1tr defendant who is uow dear!. TJrnkur Mohd.
Umar came into possession of tho properties mentioned in schedules A, B, D, E, Jf, H (except certain
items mentioned therein) while the other defendants
came into possession of ncrtain other properties,
with tho details of which we 1tre not eonoerned
now.
Thakur Sabfr Ali then instituted the present
suit for the possession of the entire property left by
Thakur Asgharali and for mesue profits. His eaRe
w11a thaL he was nntitled to succession under the
rule of male lineal primogeniture in aneor<lance with
the provfaions of the Act and the family eustom.
ffe denied the execution, attestation, genuineneu,
f
I
l S.C.R.
SUPREME COURT REPORTS
25
and validity of the wakf deed alleged to have been
exocutod by Thakur Asgha.rn.li, whieh was relio<l
upon hy Thakur Mohd. Uma1· for hiR tit.JH t.n tlw
property. The \vakf dm•<l was further challcngt'd
on other grounds with which we aro however nut
concerned now except one.
But the main attack
against the validity of the wakf deed was that the
subject matter of tho deed was property s~bject tu
the special provisions of the Act and therefore tho
said deed wa.s not valid, particularly in view of the
provisions contained in ss. 11 and 12 of the Act.
This is the main point which falls to he
consider<~rl
in the present appeal.
The defence ~as that the wakf deod wns duly
executed and registered and acted upon and that no
fraud, undue influence or coercion as alleged by the
plaintiff had been practised upon Thakur Asgharnli
in that connection. It was further alleged that cv<>n
if the wakf was invalid as a gift it would be opern.·
tive as a will and the mutwa.lli would be entitled to
the poss~ssion of the whole of the estate of Thakm·
Asgharali under the wakf dt~od. The defendants a]so
resisfod the at.tacik on tho wn.kf cltwd ha.sed nu tJw
provfoiom1 of the Act.
The trial eom·t fouud th:i.t. the wakf cfo~d waR
duly executed and was a genuine and valid document. The trial com·t also found that the pla.intiff
was ontitlod under the family custom and also under
the provisions of the Act to inherit by the rule of
male lineal primogeniture such properties as wo1·0
left by Thakur Asgharali at the time of his dea,th;
but as the trla.l comt hold that the wakf deed was
valid, it dismissed the suit of the plaintiff ox<mpt
with respect to two properties in Schedule A to Uw
plaint. Tho ~uit was decreed with respect to thcsf.'I
two properties on Lhe ground tlutt th1~y wero not
inclucfod in tho wakf deo<l.
There was t,hon an appeal hy Sa.hirnli to tho
lligh Court. It upha)fl the finding of tho tl'ia.l cotH't
J9rn
Th·1!.ur Jf o1•d.
/.~mail
"·
T!1alt11r Sa/iir ,11
Wanthoo J.
1962
Thakur Mohd.
Ismail
v.
Thalur Sabir Ali
Wanchno J.
26
SUPREME COURT REPORTS [1963]
that the wakf deed was a genuine document. It also
held that it was a valid wakf as a wakf-alal-aulad
under the Mussalman Wakf Validating Act (No. 6 of
1913); but it held that the wakf deed was invalid because it contravened the provision of s. 12 of the
Act. The High Court however further held•that even
though the wakf deed failed as a deed creating a
wakf, the directions contained in it for the payment
of maintainance allowance and right of residence in
favour of persons who were alive at the date of the
death of Asgharali and for the expenses to be
incurred in respect of charities would be binding on
the plaintiff as being the last will and testament of
Asgharali. It therefore allowed the appeal and
decreed the plaintiff's suit for possession over the
properties which were included in the deed of wakf
as also over the other properties which belonged to
Asgharali at the time of his death subject to
allowances and charities to persons living at the
time of the death of Asgharali and declared that the
allowances and amounts to be spent on charities
were to be a charge on the properties mentioned in
the deed of wakf.
The High Court decree also
contained various consequential directions with
which we are however not concerned in tho present
appeal. The plaintiff having not appc'1led from
that part of the decree by which the allowances and ·
the amounts to be spent on charities have to be paid
out of the properties included in the deed of wakf
and by which a charge was created on the properties
therefor, that part of the decree of the High Court
has become final.
·
The main question therefore that falls to be
considered in this appeal is whether the High Court's
view that the wakf is invalid in view of s. 12 of the
Act is correct. It.is necessary therefore to refer briefly
to the history of the t.alukdari estates with which
the Act is concerned. Suffice it to say that after
the Mutiny of 1857 was over, Lord Canning, t4e
>
-
...
(
~
I
~
,
}
1 S.C.R.
SUPREME OOURT REPORTS
27
then Governor-General of India issued a proclamation on the 15th of March, 18.58, by which aJI proprietary rights in the soil belonging to persons . in
Oudh {with the exception of the rights of a few
talukdars) were confiscated. At the same time
indulgence was promised to those who surrendered
promptly. In view of that promise most of the
talukdars did surrender with the result that thev
received back their estates; only tho51e who did not.
surrender lost their estates and these estates were
given to other talukdars who had proved loyal to
the British Government as a reward for their loyalty.
This re-grant was done by making settlements with
talukdars and issuing sa.nads to them. 'fhus all the
pre-existing rights of the talukdars were first taken
away and then fresh grants under the terms of
sanads and proclamations issued at the time were
made to them. This was follwed hy the Oudh Estates
Act of 1869, which further defined the rights of
talukdars to the estates granted to them by the
British Govemment. It will appear from the provisions of the Act that the rights of talukdars and
grantees to whom estates were granted by the
British Government wore defined in the Aot without
distineti.on of religion or ''aste, so that the A<~t
governed all tnlnkdarR irrespective of tlw
rc~ligion
to which they might belong.
]~urther the right of
succession is a.lso provided in the Act and the
personal law of a talukdar with respect to the
talukdari property stands abrogated exeept and in
so far the Act imports it. Further it is clear that
in respect of matters dealt with by the Act,· it is n.
se]f.containc<l and complete Code with respect to
ta.lukda.ri prbperty covered by it. This was tho
view taken by tho Privy Council in Chandra J( islwrr.
Tmm.ri v. 8i.<.:8end·i JiJsuite (1), where it was observed
that. "til1e Ondh J~sta.tes Act is a special Act a.ffocting
speda,} e}aSH of ])Ofi.lOllS in rcspAct Of tho propnrtit~R
ern1forred upon th~m. Tho Act is Helf-eonta;ine<l
(I) A· J. R (1'14:.1) I'. C. 207.
1962
Thakur Mohd.
Ismail
y.
Thakur Sahir Ali
Wanchoo !,
Thakur Mohd.
Ismail
••
Thak"r Sabir Ali
JVandioo J.
28
SUPREME COURT REPORTS (1963J
and complete in regard to the matters contained
in it". It is in this background that we have to
consider the provisions of the Act .
Let us therefore examine the scheme of the
Act. The long title of the Act says that it is "an
Act to defiue the rights of talukdars and others in
certain estates in Oudh, and to regulate the success-
.ion thereto." The preamble then says, "Whereas,
after tho re-occupation of Oudh . by tho British
Government in the year 1858, the proprietary right
in diverse estate in that province was, under certain
conditions, conferred by the British Government
upon certain talukdars and others; and whereas
doubts may arise as to the nature of the rights of the
said talukdars and others in such estates, and as to
the course of succession thereto; and where a.s it is
e xpedient to prevent such doubts, and to regulate
such course, and to provide for such other matters
connected therewith as are hereinafter mentioned."
It is clear therefore that the Act was made to define
the rights ·of holders of talukdari estates and to
regulate the succession thereto and the provisions in
the Act being a complete Code relating to the speoia 1
class of the persons in respect of the properties
conferred upon them by the British Government,
whatever right the talukdars h:td in the property
conferred on them would have to be found in the
Act and would be circumscribed by its provisions.
Sections 2 of the Act is the definition section
and we are primarily concerned with thn definition
of the word "transfer" therein which is as follows:-
"Transfer' with its grammatical variations
and cognate expressions, means to make· a.n
alienation inter vi1Jo8 whether before or after
the commencement of this Act."
'
Section 3 defines the rights of a talukdar and lays
down that a talukdar has a permanent, heritable ·
I...
(l,nd transferable right in the estate eom~rising tho -
\
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f
\
-
I S.C.-R.
SUPREME COURT REPORTS
29
villages and lands named in the list attached to the
agreement or kalndiyat executed by such talukdars
when such settlement was made with him. Section
8 provides for preparation of lists of talukdars and
others granteos and it is not in dispute that th~
Tipraha esta~is:inentioned in lists 1and11 prepared
under s. 8 of the Act. Then we come to s. 11 which
deals with the powers of talukdar to transfer and
bequeath properties held by them under the Act, the
relevant portion of which is as below:-
"Subject to the provisions of this Act, and
to all tho conditions other than those relating
to sucocssiou unde1· which the estate was
_uonforrc<l by tho :BritiHh Governmcmt, ovory
talukdar and grantee, and every hoir and
legatee of a talukdar and grantoo, of sound
mind and not a minor, shall be competent
to transfer the whol@ or any portion of his
estate, or of his right and interest therein,
during his life-time, by sale, exchange, mortgage, lease or gift and to bequeath by his
wiJI to any person the whole or any portion
of such estate, right and interest ............ ".
It will be clear from a bare pernsal of this provision
that the estate conferred on a ta.lukdar was an
absolute estate for he had the right to transfer it in
any manner he liked and to any person he liked and
even to seJl it away completeily ignoring the heirs
UQder the personal law. Then comes s. 12 which
reads thus ·-
''No transfer or bequest under this Act
shall be valid whereby the vesting of the
thing transferred or bequeathed may be delayed
beyond the life-time of one or, more persorn~,
living at the decease of the transferee or
testator and the minority of some ·person wf10
shall be in existence at the expiration of that
pefiod., and to whom, if he attains full age, t_he
thing transferred or bequeathed is to belong.''
l:Jli2
Thakur M o/itl.
lsmail
v.
'1 'hakur Sabir ,1/i
Wanchoo J.
J962
lldurMohd.
Ismail •.
Thakur Sa/Jir Ali
l·V anchoo J
30
SUPREME COURT REPORTS (1963]
This section provides the rule against perpetuity so
that even though the talukdar under the Act had
an absolute estate and could transfer it as he pleased
or will it away as he pleased he could not in view
of s. 12 make a transfer or bequest which might
infringe the rule against perpetuity. Section 13 deals
with proc:edure relating to transfers by gifts and provides that transfer by gift will be made by an instru.
ment signed by the donor and attested by two or
more witnesses not less than three months before
his death and presented for registration within· one
month from the date of its execution and registered;
and it further provides that no gift made shall be
valid unless followed within six months from the
date or execution of the instrument of gift;, by
dolivory by the donor 01· his representative in interest,
of possession of the property comprised therein.
'l'he following sections deal with bequests and with
procedure of transfer other than gifts with which we
a.re not concerned. Then we come to s. 18, which
deals with gifts for religious and charitable uses and
is in these terms:-
"N o taluqdar or grantee, and no heir or
legatee of a taluqdar or grantee, and no transferee mentioned in section 14, and no heir or
legatee of such transferee, shall have power
to give his estate, or any portion thereof, or
any interest therein, to religious or charitable
uses, except by an instrument or gift signed
by the dunor and attested by two or more
witnesses not less than three months before
his death and presented for registration within
one month from the date of its execution and
registered."
It will be seen that there is one difference between
s. 13 which deals with gifts for purpose other than
religious and charitable and s. 18 which deals with
gifts for religious and charitable uses inasmuch as
delivery of possession is not made necessary for the
' .
_ L
I
; I
1 S.C.R.
SUPREME COURT REPORTS
31
validity of the gift under s. 18 as is the case in
s. 13 (2).
The rest of the Act deals. with intestate
succession and other matters with which however
we are not concerned.
The main contentic n ou behalf of the -appellant is tha.t a wakf-ala.1-aulad is outside the provisions of the Act altogether and must be deemed
tu be a valid instrument in view of Act VI of 1913.
In the alternative it· is claimed that even if a wakfalal-aulad comes within the perview of the Act it
will be governed by s. 18, and if it complies with
the provisions of that section it will not be hit by
s. 12, the argument being that s. 18 is independent
of e. 12.
We can see no validity in the first contention on behalf of the appellant, namely, that a
wakf-alal-aulad is entiroly outside the purview of
the Act and the provisions of the Act will not apply
to it and it will be valid in view of Act VI of 1913.
It is not disputed that the property with which the
wakf-ala.1-.aulad in this case deals is property which
would be governed hy·the Act. We have already
said that the Act is a special Act affecting special
class of persons in respect of the properties conferred upon them by the British Government and is a
self-contained' and complete code in regard to the
matters contained in it. Therefore, so far as the
property which comes under the Act is concerned,
we must find power in tho Act conferred on the
talukdar to
deal with the property,
and it
cannot be accepted that the talukdar oan deal
with
the property
which is
governed
by
the Act in any manner not provided by the
Act. If the creation of a wakf-alal-aulad is out
side the purview of the Act it wiU be clear that any
wakf·alal-aulad dealing with property which is
governed by the Act would immediately be invalid
so far as that property is concerned, for the property
conferred on the talukdar which is governed by the
Aot ca.n onJy be dealt with as provided in the Act
and not otherwise, the Act being a complete Code
with reapeot to the rights of the talukdar to deal
with suoh propertJ. On the argument therefore
1962
Thakur Mobil.
Ismail
v.
Thakur Sabir .iii
Wane/loo J.
196.~
1 hakur ;,l1 ohd.
1,)1/ltJil
y,
17uikur Sal111 ·!Ii
IV andum .7.
!12
SUPREME COUH.'.i. REPORTS (1963)
that a wakf-alal-aulad is a manner of dealing with
the property which is entirely outside the Act, the
wakf must fail at once so far as it deals with property governed by the Act.
But we are of opinion that the contention that
a wakf-alal-aulad is some thing which is entirely
outside the purview of the Act, even though it may
deal with property governed by the Act cannot be
accepted. A wakf-alal-aulad must by its very nature
bo some kind of transfer of property by the person
making the wakf. Previous to Act VI of 1913, the
Privy Council had held in Abut Fam Mahomed Ishak v.
/lw;8omoy Dhur Ghowdry (1) that "under Mahomedan
law a perpetual family settlement expr<'ssly mado
as wakf is not legal merely because there is an
ultimate but illusory gift to the poor". It was
because of this judgment by which wakf-alal-aulad
aB known to Mahomedan la.w were declared illegal
that Act VI of 1913 was passed by which such wkfs
became legal. Obviously, therefore, when such
wakfs become legal there was a transfer of the
property covered by the wak;f and the transfer was
in favour in of God Almighty in whom thereafter the
property subject to wakf become vested. This
following from the theory of Mahomerlan law under
which wakfa created for
purposes which
are
considered by that law to be religious and charitable
result in the tran&fer of ownership of wakf property
in perpetuity to God Almighty. Further the transfer
being without consideration can only amount to a
gift. Therefore, wakfs-alal-aulad which have become
valid after Act VI of 1913 must be held to be gifts
of property to God Almighty for certain purposes
and a.re cleary transfers within the meaning of that
term in s. 2 of the Act.
Incidentally we may add
that the use of the words "inter vivos" in the
dofinition of the word "transfer" merely emphasises
that the trall8fer must be one effective during the
life-time of the tranaferor as contrasted with a
(I) (I~) J:., R, 221, J .. 76,
..
1 S.C.R.
SUPREME COURT REPORTS
33
transfer by will which takes effect on the death of
the transferor. Whenever therefore a transfer takes
place by a wakf-alal-aulad and the property included
in the deed is governed by the provisions of the Act
we have to go to the provisions contained in the
Act with respect to the power of the talukdar to
make such transfer.
The transfer would only be
valid if it is within the powers1 conferred on the
talukdar.
This brings us to the alternative argument
raiSed on behalf of the appellant. Obviously. a
wa.kf-alal-aulad being a gift in favour of God
Almighty the property covered by it in tho pI'csent
ca.so being ono governed hy tho Act, we have first to
go to s. I 1 to see if a gift is permitted under that
soction. We have already set outs. 11 and that
permits a gift to be made by the talukdar of all the
property or any portion of it or any interest therein.
This takes us immediately to es. 13 and 18.
Section
13 deals with
1gifts other than those for religious
and charitable purposes and we are therefore not
concerned with it. Section 18 deals with gifts for
religious and charitable uses.
'fhe contention of
the appellant in this behalf is that e. J 8 is an independent section and gifts for religious and charitable
purpose can be ma.de under it a.nd we have only to
look to that section to determine the validity of a
gift for religious or charitable purposes made by a
talukdar of property governed by the Act. We are
however of opinion that s. 18 only provides for the
procedure for making gifts to charitable and religious
purposes whiles. 13 provides for the procedure for
making gifts to other. persons for other purposes.
The power of the taltikd&r to make a gift is to be
found in s. 11, the manner in which he can make a.
gift iij to bo found in s. 13 for one class of gifts and
ins. 18 for another class of gifts. Therefore wo cannot accept the argument that s. 18 is an independent
section fully providing of gifts of a charitable and
religious nature; it is merely a. prooedur~l provision
1962
7 hakur Mohd.
Ismail
v.
Thakur Saiir Al 1
Wr.nchooJ.
1'hal-ur _1f(·Jid.
[.m .,fl
,-.
Tllalr.ur b'abir Ali
Warw:h ,,i J.
34
SUPREME COtJltT REPORTS [1963]
for gifts of the type covered by it. But even if the
argument of the learned counsel for the appellant
were correct thn,t s. I 8 is an independent provision
relating to gifts for charitable or religious purpo8e,
the gifts made under s. 18 would still be subject to
s. 12, as s. 12 open7 with the words "no transfer of
bequest under this Act shall be valid". Therefore,
even if s. 18 were an independent Rection it still
deals with a transfer of a particular type under the
Act and that transfer would also be subject to s. 12.
We may in this connection refer to s. 18 of the
Transfer of Property Act (No. 4 of 1882) which
speeifi0ally provides that the rule against perpetuity
(s. 14 of the Trnnsfor of Property Act) shall not
apply to transfer "for the benefit of the public in
the a<lvancemout of religion, knowledge, commeroe,
health, sefety or any other object beneficial to mankind. Section 18 of the Act however provides no such
exception so far as religious or charitable gifts made
under the Act aro concerned and such gifts are also
subject to s. 12.
Two questions then arise when we have to
consider the application of s. 12 to this wakf. The
first is whether the purpose of this wakf is & religiotlS
or charitable purpose within the meaning of s. 18
-
of the Act.
Now what the wakf deed provides is
._
that an insignificant portion of the income would be
used for certain religious purposes; the rest of the
income is to be used for the benefit of the wakif and
his descendants from generation to generation and
it is only when the line of tho wakif is eompletely
extinct that the whole of the income of tho
property could be utilised for. what may be called
charitable or religious purposes. It is urged how·
ever that even though the lion's share of the income
of tho property would be used for the descendants
of the wakif, the wakf will still be a religious and
oharitable one, for tho property immediately vests
in God Almight.y and is to be used for the benefit of
His creatures, which of course include the wakif and
j
I S.C.R.
SUPREME COURT REPORTS
35
his descendants. Reliance in this connection is placed
on the dissenting judgment in Bikani Mia v. Slw,klal
Poddar (1) in which Aμieerali J. expressed the view
that a wakf in favour of the wakif and his de~cen
dants would be for charitable purpose under the
Mahomedan law. It is enongh to say that this was
not the view of the majority of that Court. Further
in Abul l
1ata, Mahomeil, lshak's case (2) the Privy
Council clearly held t.hat a wakf under which the
beneficiaries were the descendants of the wakif
could not he treated as one for a charitabfo purpose
even under tho Mahomedan law. Apart from this
aspoot of the matter, we are not hero concerned with
the Mahomedan law and what constitutes a; charit·
able use undf'r that Jaw.
We are concerned with a
statute passed in 1869 by the British when they were
rulers of this country and we have to interpret the
English words used in that statute as understood by
those who framed the statute. The words with
which we are concerned are "religious or charitable
uses" which appear ·ins. 18 of the Act, and it would
in our opinion require no persuasion to hold that
the authority which was framing the Act could not
have possibly intended that provision by wakf for
one's children was provision for religious or charitable uses. The view ta.ken by the Privy Council in
AlYul Fata Mahomed lshak's cash (2) clearly shows
that the authority responsible for the Act could
never contemplate ·wa.kfs in which the beneficiaries
were the descendants of the wakif as wakfs for
religious or charitable purpose. Further, the Act
applies, as we have already mentioned, not only to
Mahomedan talukda.rs but talukiiers of all religions
and it could . hardly be intended when the words
HreJigiOUS Or charitable U8e8" Were USed in 8, i8
that a wakf in which the bent1ficiaries were in tho
main the descendants of the wakif would be included ins. 18. Such wakfs could never be considered
to be for charitable or religious purposes under
(1) (1893)1. L. R. 20Cal. 116.
(2) (189f) L.R. 22. I.A. 76,
j962
1 hakur Mohd.
Ismail
v.
Thakur Su/.ir Ali
Wanchoo J,
1962
Thakur MuhJ.
Ismail
v.
'Thokttr Sabi,. Ali
Wanchoo J.
36
SUPREME OOURT REPORTS [1963]
Hindu law or the Christian law. In these circumstances it must be held that the wakf in the present
c:tse, though in theory it vests the property in God
Almighty, is not for clrnritalile or religious purposes.
It must thnefore be treateri as a gift to God Almighty in which however for generations to come
God Almighty would have no beneficial ownership.
Nor do we think that the Wakf Valida.ting Act of
1913 makes any difference to this position. That
Act specifically provides b_v s. 3 that a Muslim can
lawfully create a w:tkf-ala.1-aulad.
This however
does not mean that the purpose of such a wakf is a
religious or cha,rit:tblc purpose. This is made clear
by the proviso to H. :l, which provides that tho
ultimate heudit, in such a Cl\Re must be fur a rnligious or chariLa\.lc purpose"
The proviso would
ha.vo beon unnecer;sa,ry if the purpose of a wakfala.1-a.ula.d was recngnise<l as religious or charitable
by this law.
The same in our opinion will follow
from the provision ins. 4.
In such a case s. 12 must invalidate this wakf.
As we have already said, s. 12 provides the rule
against perpetuit.y-; but it is said that the rule
against perpetuity pi:ovidecl in this section is not
infringed by this wa.kf bcoause the property is vested in God immediately when the wa.kf-a.lal-aulad
is created and all that s. I;! requires is that the
vesting of the property transferred should not he
delayed beyond a certain period. It is urged that
in this case the vesting takes place immediately on
the making of the wa.kf and therefore the gift is not
oovered bys. l:l. This immediately raises the question as to what is meant by vesting under s. 12. It
may be conceded that property included in a wakfa.lal-aulad vests in God Almighty, but the vesting
thats. 12 says may not be delayed beyond a certain
period is in our opinion absolute vesting (i.e., vesting of both legal and beneficial estate) which may
not be delayed beyond a certain period. Such
absolute vesting involves that the person in whom
\
-
I
)
"' -
1 S.C.R.
SUPREME COURT REPORTS
37
the property is vested can deal with it as he likes
and can deal with its usufruct also as he likes. If
the person in whom the property may be legalJy
vest,ed cannot deal with the usufruct as he . Jikes,
thore is not th.at absolute vesting of the property
in him which the rule against perpetuity enshrined
in s. 12 requires. If this were not so, it will be quite
easy to get round the rule against perpetuity by
creating a trust in which the property immediately
vests in the trustee and then providing for beneficial enjoyment in perpetuity by other persons in
whom the property never vests. It is well settl.~d
that a trust of .this kind imruediately vesting the
property in the. trustee leaving the usufruct tied up
for ever for the benefit of other persons' infringes
. the rule against perpetuity. We may in this connection refer to a passage from Underhill's "Law of
Trusts and Trustees'', tenth editi.on, dealing with
t~ Rule against Perpretuities at p. ·10, which is in
these terms :-
"It is against· public policy that property
should be settled on private trusts for an
indefinite period, so as to prevent· it being
freely deitlt with .; and, consequently, the
power of so doing has been cur.tailed by a rule
known as the rule against perpetuities. That
rule is, that every future limit.ation (whether
by way of executory <levise or trust) of real
or persona.I property, the vesting of which
absolutely as to personalty, or in fee or tail as
to realty, is postponed beyo~d lives in being
and twenty-one years afterwards (with a further :p,eriod of gestation where it exists) is
void.'
Even thou~h therefore the property may vest in
God immediately on the creation of the wakf-alal·
aulad in this case, as tho beneficial enjoyment
thereof is not for the purposes of God i.e. religious
or charitable purposes, the vesting which is envisag-
~d hr s. 12 is undoubtedly postponed in this oase
1969
Thakur Mohd.
Ismail
v.
·1 ha'ktir Sabir Ali
Wanchon .1.
1962
Tha.J:ur.Mohtl.
bmiJil
••
Thalur St1bir Ali
ff unclaoo J.
darA:or J.
38
SUPREME COURT REPORTS rJ963]
beyond the period allowed by that ~eetion. Thereforn, the wa.kf in tais case even though it may be
trcat.ed as a gift to God !(•gaily veRting property in
Him immediately on it.s execution is hit bys. 12,
for the absolute vesting which that section contemplates is postponed beyond the period mentioned in
that section. The view therefore taken by the High
Court that the wakf in this case is hit by s, 12 of
the Act is correct.
Finally, it was urged that at any rate, so long
as the appellant Mohd. Ismail is alive the plaintiffrespondent could not claim possession and therefore
the decree of the High Court to that extent was
wrong. We have not been able to appreciate this
contention at all.
Once the wakf fails as a whole,
as we hold that it does, Mohd. Ismail cannot claim
to remain in possession, for his right to remain in
possession depends upon his being mutawalli of the
wakf. The High .Court was therefore right in decreeing the suit brought by the plaintiff-respondent.
The appeal therefore fails and is hereby dismissed
with costs.
SARKAR, J.- -Thakur Mohammad Asghar Ali,
a Hana.fl Mussa.Iman, was the owner of the Tipraha
Estate, a taluqdari estate governed by the Oudh
Estates Act, 1869. It appears that he also owned
certain other immovable properties and movables
of some value. With regard to these latter, however, no question has been raised in this appeal and
it is not ne<Jelilsary to deal with them especially.
On August 26, 1925, Asghar Ali executed a
deed of Wakf-alal-aulad in respect of all his properties the value of which was estimated in the deed
at Rs. 10,00,000. By this deed he provided for an
expenditure of a total annual sum of Rs. 1,000 for
the purposes of a mosque, the destitute, helpless
students and also provided for some guzara (maintenance) to his mother, wife and cblldren, and after
(
j
I
>
I S.C.R.
SUPREME COURT REPORTS
39
them, to their respective heire till the line of a guzaradar beoame extinct. He constituted himself
the first mutawalli under the Wakf with fuIJ right
to spend the amount saved after the payment of the
aforesaid sums. He also provided that after his
death his second son Mohammad Umar would be
the mutawalli for his life and after him his other
eons, one after the other, and that after the death
of his last son, the succession to the mutawalliship
would devolve by the rule of primogeniture according to the custom obtaining in his family. In the
end he provided that if no one remained to succeed
to the office of mutawal1i, Government would make
proper arrangements for applying the usufruct of
the wa.kf property for purposes of the mosque,
religious sacrifice of goats, distribution of the guza.-
ras and grant or-scholarships to poor Mohammedanstudents. He-died on February 27, 1937.
After Asghar Ali's death disputes sprang up
between his descendants. The respondents, Sabfr
Ali, the eldest' son of Nasir AJi the p:r,:edeceased
eldest eon of Asgar Ali, claimed that the wa.kf was
neither genuine nor valid and that therefore, under
the rule of primogeniture as provided in the OU.db
Estates Act which governed the Tipraha Estate he
a.lone was entitled to all the properties left by
Asghar Ali.