- (1.) Leave granted in Special Leave Petition (C) No. 1638 of 1981.
(2.) This appeal by special leave arises from the judgment of the division bench of the Allahabad High court, made on 14/3/1980 in First Appeals Nos. 399 of 1962 and 28 of 1964. The Nawab Sir Mohammad Yusuf of Jaunpur had executed Waqfnama on 5/4/1956 and he died on 3/5/1956. The appellant-Zubeda Begum, his widow filed the suit for cancellation of the Waqfnama and for possession of the properties with a declaration that she is entitled to the compensation to the extent of l/4th share of the properties given in the list. The trial court partly decreed the suit. On appeal, the High court dismissed the suit. Thus, this appeal by special leave.
(3.) The main controversy is with regard to the validity of the Waqfnama created by Nawab Sir Mohd. Yusuf which reads as under: "I, Nawab Mohammad Yusuf, son of Nawab Abdul Majid Saheb, resident of Mohalla Alam, Post Office Sadar, Jaunpur City. Whereas I am a follower of Hanfi Sunnet Ul Jammat of Islam and whereas it is obligatory on every person that he should make arrangement by which charity and alms may continue to be given and dependant may also be looked after. The properties mentioned are worth Rs. 2,44,679. 00 which are my exclusive ownership the detail of which has been given in Schedules As, Ba, Da and Sa. The executant has no issue either male or female. I have got a nephew (My sister's son) Syed Shah Mohammad Hashmi, B. A. , LL. B. , Vakil, Allahabad who is the son of Moulvi Nazir Shah Hashmi. He is very promising, able and virtuous by nature. I have brought him up as if he was my own son. The cherished desire of me is that (1 Syed Shah Mohammad Hashmi aforesaid as well as (2 descendants of my wife and (3 other poor penniless people should be benefited by this Waqf. Therefore, after considering pros and cons of this document without any coercion or undue influence from anyone in a state of my full senses and wisdom and with my own free will, I hereby create a waqf of the properties in pursuance of Act 6 of 1913. I have given up my proprietary possession over the properties and have retaken them as the Mutawalli of the Waqf from this day onwards. I have no proprietary interest left in the properties and every bit of the property has become vested in God for the benefit of the persons mentioned above. These properties have become Waqf property for all times to come. This document will be 326 binding on everybody and the name of the property hereafter will be called 'waqf-e-Yusufia'. And all the proceedings against the Waqf estate will be taken under the name of 'waqf-e-Yusufia'. I settle the line of Tauliat as follows: (1 That up to my lifetime, I, the executant will be the Mutawalli of the Waqf properties and perform and take all proceedings vis-a- vis the properties in the capacity of my becoming the Mutawalli. No one will have the right to question my doings. The executant will have the right on the Waqf properties, whether they are planted trees, groves, groves' cultivation and the groves of the fruit-bearing mango trees. If and when it is necessary for the preservation of the Waqf properties, I will have the right for sale, lease or mortgage for the benefit of the Waqf. I will also have a right on the abolition of the Zamindari to get the compensation as Mutawalli of the Waqf. These rights will continue till I am alive and when I am no more, the succeeding Mutawalli will have the same rights in pursuance of this Waqf Deed. (2 That after the lifetime of the executant Syed Shah Ahmed Hashmi would be the Mutawalli of this estate. And after Syed Shah Ahmed Hashmi, his eldest son and after him the eldest son of his eldest son, generation after generation will continue in perpetuity as Mutawalli of the Waqf estate. (3 If per chance the eldest son of Syed Shah Ahmed Hashmi does not remain alive and dies without any issue; in that contingency, the Tauliat will go to the branch of the second son of Syed Shah Ahmed Hashmi and the Mutawalliship will continue till then in perpetuity. (4 That it is imperative that the Mutawalli of this Waqf will only be such a person who is virtuous, honest, able and capable to manage the properties. He should also follow Hanfi Tenets of the Mohammedan law. If the main (sic male) line of Syed Shah Ahmed Hashmi becomes extinct, then the Mutawalliship will go to the female line of Syed Shah Ahmed Hashmi. * * * (6 In case, the line of Moulvi Haider Hussain who is the grandfather of the executant also becomes extinct and no one of his descendants is alive, then all the Muslim residents of Jaunpur will be entitled to elect a Muslim who is honest, virtuous and belongs to the Sunni Hanfi sect to get appointed Mutawalli through court, such a person will have to follow the directions given in this deed. (7 That every person who is a Mutawalli will be entitled to nominate his successor. (8 The executant will be utilising usufruct and income of the property till he is alive for self and for the needs of my wife Smt 327 Zubeda Khatun as well as for the benefit of Syed Shah Ahmed Hashmi. (9 That on the death of the executant, government demands, Revenue, taxes, repair of houses and other necessary expenses including litigation expenses, etc. , a sum of Rs. 200. 00 will be paid to my wife Zubeda Khatun till her lifetime and the remaining sum will be distributed among the legal heirs of Shah Ahmed Hashmi. (10 That the amount which is payable to my wife on her death will be paid to the heirs of Syed Shah Ahmed Hashmi. (11 That if all the descendants of Syed Shah Ahmed Hashmi become extinct, then the income from the Waqf properties will be distributed to the descendants of my grandfather Moulvi Haider Hussain proportionately according to the Hanfi School. (12 When all the class of persons mentioned above are no more, the entire income will be given to the poor beggars and destitute Muslims. It will also be spent over Qurankhani and virtuous acts for the benefit of the Muslims at large. I have, therefore, this day executed Waqfnama so that it may be referred to if and when an occasion arises. 5/04/1956. ";