John Beaumont, J. - (1.) THIS is an appeal from a judgment and decree of the High Court of Judicature at Lahore dated January 29, 1945, which reversed a judgment and decree of the Court of the Senior Subordinate Judge, Lahore, dated January 81, 1942.
(2.) THE question in the appeal relates to the validity of a deed of wakf, or wakfnama, executed on October 29, 1917, by Ghulam Rasul. THE respondents 1-4, the plaintiffs in the suit out of which this appeal arises, are descendants of the wakif and claim a declaration that the wakf is valid and that alienations of the wakf property made by the wakif, and after his death by his sons, are null and void. THE appellants, defendants in the suit, claim under such alienations or some of them. THE questions which arise for decision are: 1. Whether the present suit is barred by res judicata under Section 11 of the Code of Civil Procedure, 1908? 2.If not, whether the deed of wakf of October 29, 1917, was an effective dedication of the property comprised therein as wakf, or was a mere paper transaction never intended to be acted upon? 3.If the deed of wakf was intended to be an effective dedication to wakf, whether on its true construction it is bad in law? 4.Whether the suit is barred by limitation ? The trial Judge answered all these questions against the plaintiffs and dismissed the suit. In appeal the High Court answered all the questions in favour of the plaintiffs and decreed their suit. Before discussing these questions it will be convenient to state the material facts and the relevant terms of the wakfnama.
(3.) GHULAM Rasul was a Sunni Mohammadan of the Hanafi Sect and was possessed of considerable property. On October 29, 1917, he executed not only the said wakfnama, but also a will. The will disposed of part of his property described as part "a" and recited that the other part of his property described as "b" had been made wakf by a deed executed on the same day. The relevant passages of the deed of wakf are as follows : The preamble stated: I have to-day executed a Will with a view to the distribution of part 'a' of my property valued at Rs. 3,37,448 among my two sons and one daughter according to their shares under the Mohammedan law after my death. It is my desire that I should create a Wakf AI-an-Nafs Ta Hayat Wa Al-al-Aulad Wal Aval in respect of part 'b' of my property as I have mentioned in the said Will, so that the income from the said property may provide for my own maintenance, for the upbringing, education, both religious and secular, and instruction of my descendants and their descendants from generation to generation and their heirs, for charity and for the help of orphans, the poor and widows and that the property may also subsist, whereby the name of my family may be preserved. Accordingly, I fulfil my aforesaid desire to-day. After resigning myself to the mercy and indulgence of the God Almighty and trusting in Providence, I think it proper to state, in the first instance, that I am a follower of the Hanafi sect and abide by all its tenets. Hence, in accordance with the tenets of the Mahommedan Law and under Section 3 of the Act 6 of 1913,1, while in the enjoyment of my senses, without any coercion or compulsion on the part of anyone else and of my own accord and free-will, declare part 'b' of my property valued at Rs. 5,63,814, full details whereof are given hereinafter, which is my self-acquired property, and which is owned solely by me without the partnership of any one else, and which is free from all kinds of encumbrances and liabilities, as Wakf Al-an-Nafs Ta Hayat Al-al-Aulad Wal Ayal and with effect from to-day I have divested myself of the proprietary possession of the property, made Wakf, and taken over the management thereof in the capacity of a Mutwalli. Then followed particulars of the property made wakf and of his heirs. (Clause 1.)I, the wakif shall, during my life-time, remain in possession and occupation of the property, made Wakf, detailed above, in the capacity of a Mutwalli and Manager and will spend the income of the said property, at my own option, for my own and my descendants maintenance and for religious and charitable purposes. (Clause 2.)After my death my elder son, named Din Mohammad, shall be the Mutwalli and after his death my second son, Ghulam Mustafa, and after him others shall be the Mutwallis of the property made Wakf. After the death of both the said sons the method hereinafter stated shall be followed permanently in regard to the appointment of a Mutwalli. The eldest of the male descendants of both the aforesaid sons (provided he is educated and is qualified and be fitted, for the office of Mutwalli, according to the Mohammedan law)s hall become Mutwalli, This rule shall be followed from generation to generation. If, God forbid, none of the male descendants of the two aforesaid sons were to survive but female descendants should be living there (then) one of the male descendants of my present female issue or one of their husbands who might be worthy (of the office) should be made the Mutwalli. If no body worthy of the office of Mutwalli, among the male descendants of my female issue or the descendants of their descendants should survive, then my kindred and their male descendants and in the absence of male descendants the male descendants of the female descendants should be made the Mutwallis, provided they are qualified and be fitted for the office of Mutwalli according to the Mohammedan law. If none of them too were to survive, then any Mohammedan from among the members of the big local Anjumans such as (1) The Anjuman Himayat Islam, Lahore, (2) The Anjuman Nomania. Lahore, (3) The Anjuman Islamia, Amritsar, and (4) the Anjuman Taraqqi-i-Talim, Amritsar,. who may be a follower of the Hanafi sect, and be an honest man, should be selected by majority of votes and declared to be the Mutwalli. Cause 3 provided that he Ghulam Rasul and succeeding Mutwallis should set apart a monthly sum of Rs. 1,875 till a fund (towards which the settlor said he had already deposited Rs. 12,500) should reach a sum of Rs. 50,000 which was to be used for the improvement of the property thereby made wakf. (Clause 7 ). If any one from among my male descendants or the male descendants of my female progeny openly or surreptitiously becomes an Ahmadi, Shia, Khariji, Murtaddad or Christian, he shall not only be deprived of his right to become a Mutwalli, but shall be permanently debarred from receiving his share of the income, which shall be distributed among other co-sharers. (Clause 8 ). After my death the nett income of the property, made Wakf, shall be divided into 50 shares. Out of them 3 shares shall be devoted to the help of widows, orphans of my community or utilized for giving scholarships to poor Musalman Students for providing them with religious and secular instruction or for other religious and charitable purposes, at the discretion of the Mutwalli and the utilization thereof every year shall be essential and compulsory. And seven shares shall every month be deposited in the Government Savings Bank or the Bengal Bank or some other reliable bank and the said amount shall, in case of need, be utilized for necessary repairs to and construction of the property made Wakf. . . . Out of the remaining 4o shares, 16 shares should be given to Din Mohammad, 16 to Ghulam Mustafa and 8 to Mumtaz Begum and in the same way and order would shares be distributed in accordance with the Mohammedan law, from generation to generation. Clauses 9 to 13 related to the duties, powers and rights of Mutwallis. (Clause 15 ). If, God forbid, the line of my (Wakif's) and my relatives, male and female descendants, becomes extinct then in that case the income of the Wakf property should be spent by the members of the Anjuman Himayat-i-Islam, Anjuman Nomania and Anjuman Taraqqi-i-Talim, Musalmanan, Amritsar, by majority of votes, for such religious and charitable purposes as may be beneficial to all Musalmans. For instance, if a room is got built in some College it-should be got built in the name of the Wakif, if a library is started it should be done in the name of the Wakif, and if scholarships are awarded the same should be awarded in the name of the Wakif, so on and so forth. If the Anjumans, aforesaid, should happen to be extinct, then the members of any existing Islamic Anjumans, not less than three in number, should, on the principle of majority of votes, take the Wakf property into their own hands and act in accordance with the instructions set forth in this deed of Wakf. The deed was registered on October 81, 1917.;