CHAUHAN, J. - (1.) THE dedication of a property to the almighty God-the creation of a wakf-has triggered off legal disputes amongst the mortals and an institution. THE appellant, the Aligarh Muslim University, has challenged the Judgment dated 7. 4. 1988 passed by a learned Single Judge of this Court, whereby the learned Single Judge had quashed and set aside the Judgment and decree dated 8. 2. 1978 passed by the Additional District Judge, Ajmer, wherein the learned trial Court had decreed the suit in favour of the appellant.
(2.) THIS case has a convoluted history: one Hakim Nizamuddin (henceforth to be referred to as `hakim Sahab', for short), an experienced physician and a devout Muslim, owned a three-shoried building in Gali Langar Khana, opposite the Dargah Sharif at Ajmer. The building including not only shops, but also three libraries, which housed costly books and a "dawa khana" (clinic) of the Hakim Sahab. Being a religious man, on 6. 7. 1942. Hakim Sahib executed a "wakf alal-aulad" (family wakf) (Ex. 4) with regard to the three-storied house (henceforth to be referred to as `the suit property', for short ). For the sake of clarity, this Wakfnama shall be referred to as `the 1942 Wakf'. According to the Wakif (the creator of the wakf)-Hakim Sahab-the said wakf was to be governed by the Hanafi School of Muslim Law. Hakim Sahab was to be the first Mutawalli (Manager or superintendent of the property) and after him, his eldest son, Hakim Nasiruddin, was to be the next Mutawalli. After his son Hakim Nasiruddin, the Mutawalli would be chosen by lots from the families of Hakim Sahab's male issues. Thus, the succession of Mutawalli was fixed. Hakim Sahab did not retain any power to change the said line of succession of Mutawallis. The usufruct of the suit property was to be used by Hakim Sahab during his lifetime. The method of spending the profit from the clinic was also spelt out. But, we shall deal with this aspect later in the judgment at the appropriate place. The 1942 Wakf was not only registered, but was also published in the Official Gazette dated 23. 9. 1965 (Ex. 3 ). However, the partition of the country in 1947 changed the scenario. With the partition. Hakim Sahab's children-three sons, including the eldest son, Hakim Nasiruddin, and daughters- migrated to Pakistan. Since the sons migrated to Pakishan, since the succession of Mutawalli as contained in the 1942 wakf could not be implemented, on 30. 6. 1952, Hakim Sahab created a trust deed (Ex. 5) wherein he changed the succession of Mutawalli: Hakim Sahab would continue to act as a Mutawalli during his lifetime, but after him, Smt. Zohra Begum, the great- granddaughter of his sister, Mst. Kulsum Begum, was to succeed as the next Mutawalli. But after sixteen years, Hakim Sahab again changed his mind. On 15. 7. 1966, he executed a will (Ex. 14) in favour of the appellant. According to the said will, the entire suit property was to go the appellant after Hakim Sahab's death. The income from the property was to "be spent in giving the Scholarship to deserving student of Tibiya College in the Muslim University. " However, since the Islamic Law permits only 1/3rd of the property to be transferred as a gift through a will, the appellant could see the legal difficulties in the said will. Therefore, they contacted Hakim Sahab and sent their employee, Mohammad Ahsan (PW. 8) and their lawyer, Haji Hasan Abedi (PW. 10) to convince Hakim Sahab to change the Will and to create another document in favour of the appellant. Therefore, on 28. 9. 1966, Hakim Sahab created another wakf in favour of the appellant. For the sake of clarity this wakfnama shall be referred to as `the 1966 wakf'. This wakf was intervivos. During his lifetime, Hakim Sahab was to be the Mutawalli and after him, the appellant. The profit earned from the clinic was to pay for the education of "the deserving and the needy Muslim students of the Tribbia College in the Muslim University Aligarh. " However, two years later, on 14. 4. 1968 Hakim Sahab created yet another will (Ex. 15) in favour of one Gaffar Khan (respondent No. 10 before us) with regard to the suit property. According to the said will, Hakim Sahab revoked the 1966 wakf and made the will in favour of Gaffar Khan, But, just after two months, on 5. 6. 1968, Hakim Sahab cancelled his earlier will and the 1966 Wakf and executed yet another will (Ex. A/9) in favor of Respondent No. 1. Respondent No. 2 was appointed as the executor of the will. On the same day, i. e. 5. 6. 1968, Hakim Sahab also executed a General Power of Attorney (Ex. D 10/1) in favor of the respondent No. 1. Just four days later, Hakim Sahab migrated to Pakistan and died there on 12. 12. 1968. With his death, the legal disputes erupted. The appellant filed a civil suit, registered as Civil Suit No. 77/1970 (later on renumbered as 9/1971), for possession, accounts, recovery of rent, for pendentilite cost and damages for use and occupation of the suit property. For sake of clarity, the respondents shall be referred to as referred to in the civil suit filed by the appellant. According to appellant, in accordance with the 1966 wakf, after the death of Hakim Sahab, they had become the Mutawalli of the suit property. Therefore, they had a right to manage and supervise the suit property. They also had to spend the income of the property for the deserving and needy Muslim students of Tibbia College as directed by the Wakif, the Hakim Sahab. Therefore, the appellant prayed for decree of possession of the suit property, decree of arrears of rent against respondent Nos. 3 to 7, damages against respondent Nos. 1 and 2, decree of redemption on account of the clinic being run by the respondent Nos. 1 and 2 and lastly, a decree for pendentilite and future damages.
(3.) THE respondent Nos. 1 and 2 filed their written statement and claimed that the appellant had gotten the 1966 wakf made from the Hakim Sahab by misrepresenting and by using undue influence over him. According to them, Hakim Sahab never wanted to create a wakf of the suit property in favor of the appellant. He only wanted to will the property in favor of the university. However, by drafting the 1966 wakfnama in English, by creating an impression upon him that only a will was being drafted, the appellant cleverly created a wakf in their own favour. THE respondent Nos. 1 and 2 further claimed that Hakim Sahab was not mentally and physically fit to understand and tenor of the document. Moreover, when the 1966 wakf was created, Hakim Sahab did not have access to anyone except the persons who came from the Aligarh Muslim University. Thus, they exercised undue influence over him. Hence, as the wakfnama was procured by misrepresentation and under undue influence, the 1966 wakf is void. THE respondent Nos. 1 and 2 further claimed that Hakim Sahab had repudiated the said 1966 wakf by sending a notice on 27. 8. 1968 (Ex. A/1) to the appellant. Moreover, afterwards, Hakim Sahab had executed a will in favour of the Respondent Nos. 1. THErefore, the respondent Nos. 1 had the right to occupy the suit property and to realize the rent from the other tenants. THE other respondents, namely respondent Nos. 3 to 10 have supported the case of respondent Nos. 1 and 2. THErefore, their stand before the learned trial Court is not being mentioned here. Meanwhile, Smt. Zohra Begum also filed a civil suit, registered as Civil Suit No. 79/1970 (later on renumbered as Civil Suit No. 10/71), for declaration, possession, accounts, recovery of rent and damages for use and occupation of suit property against the Respondent Nos. 1 and against the appellant. According to her, the 1942 wakf was a valid wakf. Subsequently, Hakim Sahab had created a trust deed in her favor on 30. 6. 1952 (Ex. 5, in her suit ). According to the said deed, after his death, she was to act as the Mutawalli. Hence, she had a right to have herself declared as the Mutawalli, to supervise and manage the suit property and to recover the possession, the rent and account of rent and the cost of damage caused to the suit property by the respondent Nos. 1 and the appellant. In her suit, Smt. Zohra Begum had examined herself and three others as witnesses. However, vide order dated 3. 10. 1972, the two suits were consolidated and the suit filed by the appellant was made the leading suit. After consolidating the civil suits, the learned trial Court had framed thirteen issues. In order to support their case, the appellant had examined eleven witnesses and had produced a number of documents. In order to buttress their case, the respondent Nos. 1 and 2 had examined eight witnesses. After going through the oral and documentary evidence, including the oral and documentary evidence produced in the civil suit filed by Smt. Zohra Begum, through a common Judgment, Judgment dated 8. 2. 1978, the learned trial Court, decreed the suit in favor of the appellant, but dismissed the suit filed by Smt. Zohra Begum. ;