T. Ameer Ali, J.

1. This appeal raises some important questions of Mahomedan law.It appears upon the evidence that the property, which forms the subject-matterof the present suit, has been in the possession of the plaintiffs family fromthe latter end of the last century; that in the year 1835 it was resumed byGovernment and settled in 1839 with the plaintiffs mother Hamida. The proceedsof the property appear to have been applied in the maintenance of a shrine ordurgah of a saint called Shah Budhan, from whom the plaintiffs family seems tobe descended. In 1855 the father of the plaintiff, named, Rahimuddin, who atthat time held the office of sajjadanashin or curator of the shrine, made adivision of all the family properties among his two sons, Abdur Ruzzack, nowdeceased, and the plaintiff, and a daughter, named Wasia, expressly reservingthe property in suit for the expenses of the durgah. Rahimuddin died in 1856and was succeeded in the office by Abdur Ruzzack, who, in the year 1859,conveyed to his mother-in-law, a lady of the name of Hasina, all the propertieshe had received under the taksimnama together with the property in suit. In1864 Hasina granted or purported to grant a mukarrari of all these propertiesto her daughter Masihan, the wife of Abdur Ruzzack. Hasina died in 1877, andupon her death Masihan got herself registered as the owner of the propertiesconveyed by Abdur Ruzzack to Hasina in 1859. Abdur Ruzzack died in the year1888, and the plaintiff brings this suit against Masihan to recover possessionof the property in question on the ground that it is wakf, and thatconsequently Abdur Ruzzack was not entitled to alienate it. And he bases hisright to sue upon the allegation that after his brothers death he wasappointed sajjadanashin of the durgah, to which the property is dedicated.

2. The contending defendant in this case was Masihan, thewidow of Abdur Ruzzack, and she in her written statement denied, inter alia,that the property was wakf, or that the plaintiff had any title to maintainthis suit. She alleged that Abdur Ruzzack before his death nominated hisdaughters son Mahbub Alum to the office of sajjadanashin, and that thereforeplaintiff could not be appointed as alleged by him; and she also contended thathis appointment was invalid.

3. Upon this state of the pleadings several issues wereraised between the parties, but in the main the case proceeded upon thefollowing points:

First.-Whether the property was wakf as alleged by theplaintiff.

Second.-Whether the plaintiff was validly appointed assajjadanashin, or in other words, was he entitled to maintain the present suit

Third.-Whether he was estopped from impugning thetransaction between Abdur Ruzzack and Hasina.

fourth.--Whether the sale to Hasina was a real or benamitransaction

Masihan died during the pendency of the suit, and her daughterPiran has been substituted in her place.

4. The lower Court has made a decree in favour of theplaintiff, holding that the property in suit is wakf, and that whatever may bethe rights of Mahbub Alum, the plaintiff as the de facto sajjadanashin and managerof the durgah is entitled to sue for a property wrongfully alienated by thelate sajjadanashin. It also held that the deeds of 1859 and 1864 were benami,and that the plaintiff was not estopped from impugning those transactions.

5. The defendant has appealed to this Court, and the learnedpleader who appears for her contends in the first place that the SubordinateJudge was wrong in holding that the property in suit is wakf, for the deed of1855 does not constitute it wakf, nor is there any evidence of priordedication. He further contends that the Court below was in error in referringto documents which in the year 1835 had been found to be fabricated. Now, whatappears to have happened in that year is this. Under Regulation II of 1819,Government had instituted an enquiry into the titles of proprietors of land whoprofessed to hold their properties free from revenue under grants from theformer rulers. And, in the course of this enquiry, in 1835 Rahimuddin, who wasthe then sajjadanashin, was called upon to prove his title to hold the villagesof which he was in possession free of revenue. He alleged that the villagesincluding the village of Khundwa had been originally granted as maddad maashfor the support of the khankah of Shah Budhan. The documents produced by him insupport of his allegation were declared not to be genuine. The property wasresumed, and, after a temporary settlement with a Kadira, was permanentlysettled with Hamida, to whom Rahimuddin had purported to convey the same by abaimokasa in lieu of her dower. Hamida died in 1852 or thereabouts, and thenames of her sons and daughter were thereupon registered in the Collectorsrecords instead of hers. In 1855, however, Rahimuddin is found dealing with theproperty as appertaining to the durgah. The Subordinate Judge, looking to thedeclaration contained in the document of 1855 with Rahimuddins statements in1835, thinks that the settlement of the lands in 1839 with Hamida did not inany way alter the mode in which the family had dealt with the proceeds of mauzaKhundwa. We do not think he was wrong in drawing from those facts the inferencethat, though the property stood in Hamidas name, the family had applied, moreor less, the income derived therefrom for the support of the durgah. And thisinference seems to us to be warranted by the oral evidence on the record. Butin the view we take of the document of 1855, we think it immaterial to considerwhether such application of the proceeds amounts to proof of dedication or not.In the taksimnama in question, Rahimuddin admittedly deals with three classesof property--(1) property which he says was inherited by his children fromtheir mother (Hamida), (2) property which stood in their names (beingapparently property which he had purchased in their names), and (3) propertywhich stood in his own name. And he divided all these properties among his sonsand daughter in the usual proportion, viz., one-fifth to the daughter andtwo-fifths to each of the sons. Mauza Khundwa, the village in suit, is includedin neither of these categories, and is expressly excluded from the partition.If the baimokasa executed by Rahimuddin in 1836 in favour of Hamida representeda real transaction, and if the settlement in 1839 was taken by Hamida herselfand not benami for Rahimuddin, the properties settled with her would, upon herdeath, have devolved upon her husband as well as her children. The SubordinateJudge thinks, not without reason, that the baimokasa of 1836 was a merecolourable transaction entered into for the purpose of enabling Rahimuddin toobtain a settlement of the resumed lands in the name of his wife. But whetherthat be so or not, upon the hypothesis that it was a real transaction, thepersons who were entitled to Hamidas estate were Rahimuddin and his children.They chose to divide the rest of the family properties, treating Khundwa asstanding upon a different basis from the others. The question, therefore,resolves itself to this, what was the effect of the reservation made by theparties to the deed of 1855. The passage in that document relating to theproperty in suit runs thus:

Excepting mauza Khundwa, pargana Saseram, and 22 houses ofraiyats situated in Mahulla Budhan Bari (details of which are inserted below)and [which are set apart specifically for the expenses of the holy shrine andwhich] I have made over to the sajjadanashin of the durgah of Shah Budhan,&c.

6. That is, he divides all the properties excepting the oneherein mentioned. Towards the end of the document there is an injunction on theheirs:

With respect to mauza Khundwa and the 22 houses of raiyatsmade over [or appertaining] to the said durgah, none of the heirs shall preferany claim or make any dispute.

7. And in the schedule the property is mentioned thus:

The whole 16 annas of mauza Khundwa and 22 houses of raiyatsappertaining to the holy durgah of Huzrat Dewan Shah Budhan, &c, shallremain in the charge of the sajjadanashin.

8. Does this amount to a dedication or not Moulvie MahomedYusuf for the defendant contends that it does not. He says that had Rahimuddinintended to create a wakf; he would have used the word wakf. Now it is clearupon the authorities that in order to constitute a wakf, it is not necessary touse the word wakf. So long as it appears that the intention of the donor is toset apart any specific property or the proceeds thereof for the maintenance orsupport in perpetuity of a specific object or of a series of objects recognizedas pious by the Mussulman law, it amounts to a valid and binding dedication(Fatawa-i-Alamgiri, vol. 2, pages 460-461; Kazi Khan, vol. 3, page 73; andRaddul-Muhtar, quoted as Shami, vol. 3, page 560). In the case of Jewun DassSahoo v. Shah Kubeerooddeen 2 Moo. I.A. 390 (421) the Privy Council adoptingthe views of the Sudder Dewani Adawlut in the case of Mussummat Qadira v. ShahKubeerooddeen Ahmud 3 Sel. Rep. 407 held as follows:

This decision is in accordance with the doctrine laid downin the Hidaya, Book XV, of wakf or appropriation, Hamiltons Translation, vol.II, page 334, where it is said, wakf in its primitive sense meansdetention. In the language of the law (according to Haneefa) it signifies theappropriation of any particular thing in such a way that the appropriatorsright in it shall continue, and the advantage of it go to some charitablepurpose in the manner of a loan. According to the two disciples, wukfsignifies the appropriation of a particular article in such a manner assubjects it to the rules of divine property, whence the appropriators right init is extinguished, and it becomes a property of God, by the advantage of itresulting to His creatures. The two disciples therefore hold appropriation tobe absolute, though differing in this, that Aboo Yoosaf holds the appropriationto be absolute from the moment of its execution, whereas Mahomed holds it to beabsolute only on the delivery of it to a mutwali (or procurator), and,consequently, that it cannot be disposed of by gift or sale.

It is stated from Shaik-ul-Islam Abdul Hassan that all themashaikhs (jurists) declare that if they (the congregation) do appoint amutwali, it would be as valid as if the appointment was made with thepermission of the Kazi.

9. And in the Radd-ul-Muhtar it is stated that the modernMahomedan lawyers recognize the validity of an appointment by the congregation.So also in the Wajiz-ul-Muhtar. It is clear, therefore, that the election ofthe plaintiff is not invalid under the Mahomedan Law. Besides, it seems to methat the appointment of a sajjadanashin of a durgah must, to a large extent, beregulated by the practice followed in the particular durgah or neighbouringdurgahs.

10. Herklot describes the custom in vogue in the durgahsexisting in Southern India. And, so far as I am aware, that is consistent withthe practice prevailing in other parts of India, viz., that upon the death ofthe last incumbent, generally on the day of what is called the sium or tejaceremony (performed on the third day after his decease), the fakirs and muridsof the durgah, assisted by the heads of neighbouring durgahs, install acompetent person on the guddi; generally the person chosen is the son of thedeceased or somebody nominated by him, for his nomination is supposed to carrythe guarantee that the nominee knows the precepts which he is to communicate tothe disciples. In some instances the nomination takes the shape of a formalinstallation by the electoral body, so to speak, during the life-time of theincumbent. But in every case the person installed is supposed to be competentto initiate the murids into the mysteries of the tarikat (the holy path). Inthe present case the evidence is that in accordance with the general practiceand the practice prevailing in the durgah in question, the plaintiff wasappointed. And I am of opinion that that appointment was valid, and theplaintiff has a title to maintain this suit.

11. As regards the question of estoppel, I agree with theSubordinate Judge. Upon the evidence, I am by no means satisfied that theplaintiff attested the document in favour of Hasina, nor is there any evidencepointing to the fact that the plaintiff knew, at the time he attested the otherdocuments referred to in argument, that Abdul Ruzzack had purported to dealwith Khundwa as his private property.

12. For these reasons, I am of opinion that this appealshould be dismissed with costs.

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Piran vs. AbdoolKarim and Ors. (07.08.1891 - CALHC)