WANCHOO, J. - (1.) THE following Judgments of the court were delivered. :
(2.) THIS is a defendant's appeal on certificate granted by the Allahabad High court. The suit was brought by Thakur Sabir Ali plaintiff respondent for possession. The following pedigree table (omitting the unnecessary names) which is not in dispute, may be set out to appreciate the case of the plaintiff:- JUDGEMENT_1722_AIR(SC)_1962Image1.jpg The case of the plaintiff was that Thakur Amir Baksh owned considerable property Known as Tipraha Estate in the district of Bahraich at the time of the, annexation of Oudh. He died in 1857 and was succeeded by his son Thakur Fateh Mohd., who was subsequently recognised by the government as the talukdar of the Tipraha Estate. Thakur Fateh Mohd. died issueless and on his death Thakur Nabi Baksh succeeded him as the talukdar under the family custom and under the provisions of the Oudh Estates Act, No. 1 of 1.869, (hereinafter called the Act). On the death of Thakur Nabi Baksh the estate passed to his only son Asghar Ali, who in his life time acquired certain other properties which were both talukdari and non-talukdari in nature. In August, 1925, Thakur Asghar Ali executed a deed of wakf alal-aulad by means of which he created a wakf of his entire property for the benefit of himself, his family and descendants generation after generation. 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 rule of primogeniture were to be mutwallis. The wakf deed provided that some amounts would be paid to charities 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 included 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 on 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 led to protracted litigation in the Revenue courts and eventually an order for mutation was passed in favour of Thakur Mohd. Umar defendant who is now dead. Thakur Mohd. Umar came into possession of the properties mentioned in schedules A, B, D, E, F, H 'except certain items mentioned therein) while the other defendants came into possession of certain other properties, with the details of which we are not concerned now. Thakur Sabir Ali then instituted the present suit for the possession of the entire property left by Thakur Asgharali and for mesne profits. His case was that he was entitled to succession under the rule of male lineal primogeniture in accordance with the provisions of the Act and the family custom. He denied the execution, attestation, genuineness, and validity of the wakf deed alleged to have been executed by Thakur Asgharali, which was relied upon by Thakur Mohd. Umar for his title to the property. The wakf deed was further challenged on other grounds with which we are however not concerned now except one. But the main attack against the validity of the wakf deed was that the subject matter of the deed was property subject to the special provisions of the Act and therefore the said deed was 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 be considered in the present appeal. The defence was that the wakf deed was duly executed and registered and acted upon and that no fraud, undue influence or coercion as alleged by the plaintiff had been practiced upon Thakur Asgharali in that connection. It was further alleged that even if the wakf was invalid as a gift it would be operative as a will and the mutwalli would be entitled to the possession of the whole of the estate of Thakur Asgharali under the wakf deed. The defendants also resisted the attack on the wakf deed based on the provisions of the Act. The trial court found that the wakf deed was duly executed and was a genuine andvalid document. The trial court also found that the plaintiff was entitled under the family custom and also under the provisions of the Act to inherit by the rule, of male lineal primogeniture such properties as were left by Thakur Asgharali at the time of his death; but as the trial court held that the wakf deed was valid, it dismissed the suit of the plaintiff except with respect to two properties in Schedule A to the plaint. The suit was decreed with respect to these two properties on the ground that they were not included in the wakf deed. There was then an appeal by Sabirali to the High court. It upheld the finding of the trial court 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 maintenance 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 the present appeal. The plaintiff having riot appeared 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 therefore, that part of the decree of the High court has become final.
(3.) 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 a. 12 of the Act is correct. It is necessary therefore to refer briefly to the history of the talukdari estates with which the Act is concerned. Suffice it to say that after the Mutiny of 1857 was over, Lord Canning, the then governor-General of India issued a proclamation on the 15th of March, 1858, by which all 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 they received back their estates',- only those 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 sanads to them. Thus all the preexisting 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 followed by the Oudh Estates Act of 1869, which further defined the rights of talukdars to the estates granted to them by the British government. 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 were defined in the Act without distinction of religion or caste, so that the Act governed all talukdars irrespective of the religion to which they might belong. Further the right of succession is also provided in the Act and the personal law of a talukdar with respect to the talukdari property stands abrogated except and in so far the Act imports it. Further it is clear that in respect of matters dealt with by the Act, it is a self-contained and complete Code with respect to talukdari property covered by it. This was the view taken by the Privy council in Chandra Kishore Pewari v. Sissendi Estate (1), where it was observed that ,the Oudh Estates Act is a special Act affecting special class of persons in respect of the properties conferred upon them. THE Act is self-contained 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 define the rights of talukdars and others in certain estates in Oudh, and to regulate the succession thereto.` The preamble then says, `Whereas, after the reoccupation of Oudh by the 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 talukdar and others in such estates, and as to the course of succession thereto; and where as it is expedient 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 special class of the persons in respect of the properties conferred upon them by the British government, whatever right the talukdars had 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 ,Ind we are primarily concerned with the definition of the word `'transfer` therein which is as follows: `Transfer with its grammatical variations and cognate expressions, means to make an alienation inter vivos 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 and transferable right in the estate comprising the villages and lands named in the list attached to the agreement or kabuliyat executed by such talukdars when such settlement was made with him. Section 8 provides for preparation of lists of talukdars and others grantees and it is not in dispute that the Tipraha estate is mentioned in lists I and II prepared under s.8 of the Act. Then we come to s.all which deals with the powers of talus to transfer and bequeath properties hold by them under the Act, the relevant portion of which is as below- `Subject to the provisions of this Act, and to all the conditions other than' those relating to succession under which the. estate was conferred by the British government, every talukdar and grantee, and every heir and legatee of a talukdar and grantee, of sound mind and not a minor, shall be competent to transfer the whole 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 will to any person the whole or any portion of such estate, right and interest............. It will be clear from a bare perusal of this provision that the estate conferred on a talukdar was an absolute estate for he had the right to transfer it in any manner be liked and to any person be liked and even to sell it away completely ignoring the heirs under 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 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,` 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 procedure relating to transfers by gifts and provides that transfer by gift will be made by an instrument 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 of execution of the instrument of gift, by delivery by the donor or his representative in interest, of possession of the property comprised therein. The following S. deal with bequests and with procedure of transfer other than gifts with which we are not concerned. Then we come to s. 18, which deals with gifts for religious and charitable uses and is in these terms: `No 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 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.` 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 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. ;