Gangeshwar Prasad, J. -
(1.)THE main question involved in this appeal relates to the validity of a deed of wakf executed by one Sheikh Karamat on 8-2-1932. THE material provisions of the deed are as follows. Sheikh Karamat himself would remain in possession of the wakf property in the capacity of a Mutwalli during his lifetime and utilize its income for his own needs ana for those of his wife and other relations. THEreafter, his wife Fahima Bibi would remain in possession of the property as a Mutwalli for her life and spend its income on herself and on the poor, without being accountable to anybody. Upon the death of Fahima Bibi the Mut-walliship would devolve upon Shamsul Haq, Abdul Rauf and Abdul Maruf, the respondents in this appeal, who would spend a sum of Rs. 4 per month out of the income of the wakf property over a Madarsa named in the deed and would appropriate the rest of the income to their own use. After the death of the respondents their descendants, generation after generation would be the Mutwallis of the wakf and managers of the wakf property subject to the terms of the wakf deed. On the extinction of the line of the respondents the entire income of the wakf property would be devoted to the upkeep of the Madarsa by a pious and a competent person selected by the Muslim residents of the villages mentioned in the deed, and if at any time the Madarsa designated in the deed ceases to exist the income would be spent over some other Madarsa.
(2.)IN 1933 Sheikh Karamat instituted a suit for cancellation of the deed of wakf against the respondents but the suit was withdrawn by him with permission to file a fresh suit. Then, in 1934 he executed a deed of revocation annulling the wakf deed of 1932, and contemporaneously with it he appears to have executed another deed of wakf providing that after his death and the death of his wife Fahima Bibi, the Mutwalliship would go to Sheikh Mansab, the brother of Fahima Bibi. Again, in 1938 Sheikh Karamat executed a third deed of wakf annulling the second deed as well and providing that after him and his wife Fahima Bibi the Mutwalliship of the wakf would go to the appellant, who is the grandson of his brother Sheikh Amanat, and would then continue devolving upon the appellant's descendants generation after generation. Under this deed of 1938 a sum of Rs. 10 per annum out of the income of the wakf property is to be spent by all the Mutwallis towards the upkeep of the Madarsa mentioned therein and on the extinction of the line of the appellant the entire income of the wakf property has to be devoted to charity.
It appears that on the basis of the wakf deed of 1932 mutation in the revenue records in respect of the zamindari property comprised in the deed was effected in the name of Sheikh Karamat and after his death in 1940 in the name of Fahima Bibi as Mutwalli of the property. Upon the death of Fahima Bibi, which took place in 1946, a dispute regarding the Mutwalliship arose between the appellant and the respondents. Mutation in the revenue records was ordered to be made in favour of the respondents, and the suit which has given rise to this appeal was then instituted by the appellant for a permanent injunction restraining the respondents from interfering with his possession of the wakf property and for other alternative and incidental reliefs.
The appellant, who claims under the wakf deed of 1938, alleged that the execution of the earlier wakf deeds of 1932 and 1934 by Sheikh Karamat was brought about by means of fraud and those deeds did not represent the real intention of Sheikh Karamat. It was contended by him that Sheikh Mansab and the respondents did not belong to the family of Sheikh Karamat and as such no wakf could in law be created for their maintenance and support. The result, according to his contention, was that the deed of 1938 was the only valid and operative deed of wakf and it was the appellant who was the legal and the real Mutwalli of the wakf property. The respondents denied that the wakf deed of 1932 had been obtained by fraud and asserted that it truly represented the intention of Sheikh Karamat and had also been given effect to. They further asserted that they were relations of Sheikh Karamat, that the wakf deed of 1932 was perfectly legal and valid, and that they were in possession as Mutwallis under it since after the death of Fahima Bibi. In the alternative, their case was that if the respondents were not held to be Mutwallis under the law, the wakf created by the deed of 1932 will be deemed to have been appropriated after the death of Fahima Bibi, to the charity mentioned in the deed as the ultimate beneficiary and the appellant could even then have no interest whatsoever in the wakf property. It was further pleaded by the respondents that as the suit filed by Sheikh Karamat, for cancellation of the wakf deed of 1932 had been allowed to be withdrawn with permission to file a fresh suit subject to the condition of previous payment of the costs of that suit and the costs had not been paid, the present suit was not maintainable. The plea of limitation under Article 91 of the Limitation Act was also taken.
(3.)THE courts below have found that the wakf deed of 1932 was not secured by fraud and they have held it to be genuine and valid and to be a deed which was fully acted upon. On the question whether the respondents can be said to have belonged to the family of Sheikh Karamat the trial court has recorded a finding against the respondents. This finding does not appear to have been challenged before the lower appellate court and the judgment of the lower appellate court proceeds on the basis that the respondents did not belong to the family of Sheikh Karamat. Both the Courts below have, however, held that although the dispositions in favour of the respondents and their descendants in the wakf deed of 1932 were invalid, they did not invalidate the deed in entirety and only resulted in bringing into operation, immediately after the death of Fahima Bibi, those provisions which were to take effect after the death of the respondents and the extinction of their line. It has accordingly been held by them that the wakf deeds of 1934 and 1938 were, altogether void and ineffective, and the plaintiff has no interest in the wakf property. THE plea that the present suit was not maintainable because of the failure to pay the costs of the suit withdrawn by Sheikh Karamat has also found favour with both the courts below. As to the plea of limitation, the trial court has given no finding, but the lower appellate court has held that the suit is barred by Article 91 of the Limitation Act.
The findings of fact recorded by the courts below have not been challenged before me as, indeed, they could not be. It has also not been disputed that if the wakf deed of 1932 was valid and took effect as such the deeds of 1934 and 1938 were void and ineffective, and the appellant has in that case no interest in the property in suit. Mr. S. J. Hyder, learned counsel for the appellant, has only assailed the validity of the wakf deed of 1932 and urged that the provisions in the aforesaid deed in favour of the respondents and their descendants were repugnant to the creation of a lawful wakf and since those provisions were integral and, from the point of view of duration as also of the quantum of benefit, the most substantial part of the purpose for which Sheikh Karamat purported to create a wakf under that deed, they vitiated the wakf at its source and the deed was invalid from its inception. The question for decision, therefore, is whether the wakf created by the deed of 1932 was invalid ab initio on account of the provisions in favour of the respondents and their descendants or whether a valid wakf came into existence in spite of the said provisions and it took effect as if there were no intermediate beneficiaries at all between Fahima Bibi and the charity designated, in the deed as the ultimate beneficiary.