1968 PLP 464 (SCMR)

FAZLE-AKBAR, J.

This appeal, by special leave, arises out of a suit filed for administration of the estate of one, Haji Abdul Aziz, deceased. The said Haji Abdul Aziz, who was governed by Shariat in the matter of succession, died in the year 1945, leaving two sons and two daughters. His son, Abdul Wahid and two daughters Umat ul-Hamid and Umat-ul-Rehman filed a suit for administration of the estate of their father and for rendition of accounts against their elder brother Abdul Kabeer who, according to them, was managing the estate but not paying to them their due shares. They also prayed-for removal of Abdul Kabeer from Mutawalli ship of Taqia Haji Muhammad Saeed on the ground that he was mismanaging the said waqf. Abdul Kabeer contested the suit. His main contention was that his father during his lifetime by a written will dated 8th April 1927, created a waqf-alai-aulad in respect of all his properties and hence his brothers were not entitled to claim partition of the said properties. He also claimed a portion of the suit properties as his personal property. He further raised various other objections as to the maintainability of the suit. As during hearing of the suit plaintiff Abdul Wahid supported the defendant, he, on the application of the other plaintiffs, was transposed as a defendant. A number of issues were raised in this suit. The Civil Judge upheld the preliminary objection of the defendant with regard to the misjoinder of causes of action and directed that the property known as "Taqia Haji Muhammad Saeed" should be excluded from the subject-matter of the suit. Hence, the issues relating to the Management of the said waqf became redundant and were struck off. At the outset, it may be mentioned that the claim of the plaintiffs that they were heirs of Haji Abdul Aziz deceased, was not challenged. Similarly, there was no dispute with regard to the genuineness of the will of 1927. Therefore, the only matter directly and substantially in issue in the suit was the validity of the waqf alleged to have been created by the will of 1927. Some of the salient features of the said will may now be noticed. The preamble recited that as Haji Abdul Aziz was going for Haj, it was his bounden duty to make a will, in favour of his heirs. The relevant parts of the document are to the following effect: - i. That during his absence his wife will remain in possession of the entire property and will spend the income on the main tenance, education and marriage of his sons, but she will have no right to alienate the property either partially or wholly; ii. that after her death the eldest son Abdul Kabeer Will manage the property and distribute the Income among the heirs according to Shariat; iii. that the property would remain joint and none of the brothers would be entitled to exclude the sisters therefrom; iv. that the residential house in Qila Gujjar Singh would go to his two sons; v. that 1/12th income of the property would be set apart for maintenance of Khanqa Haji Muhammad Saeed and for charity; vi. that if the testator came back from the Haj alive he would remain owner of his properties as at present; vii. and that he reserved unto himself the right to amend or cancel the will. It was contended on behalf of the plaintiffs that the said will of 1927 was superseded by means of another will dated 21st June 1937, which was further amended on the 25th of May 1939. On the other hand, the defendants' contentions were that the will of 1927 was really a waqf a inter vivos; that in any event a waqf was already exisiting and its recital in the document proved the waqf. He also challenged the genuineness of the will of 1937. The Civil Judge was unable to accept the above contentions of the defendant. He came to the conclusion that the will of 1927 created no trust or waqf-ul-aulad; that the said will was superseded by means of another will dated 21st June 1937, which was further amended on the 25th May 1939, and that under the last will of the testator his properties would devolve on his heirs. He further found that the accounts between the parties stood settled up to November 1953. He accordingly decreed the suit in preliminary form and declared the share of each son as 1/3rd and of each daughter as 116th. He further gave directions for taking of account. The defendant filed an appeal against the judgment and decree of the Civil Judge and the plaintiffs filed cross-objections against his finding that the accounts had been settled till 1953. The Additional District Judge who heard the appeal dismissed the appeal of the defendant and accepted the cross-objections. He, therefore, directed that the defendant would render account to the plaintiffs since the year 1947 es claimed by them. The defendant then filed a second appeal in the High Court, but the same was summarily dismissed by a learned Single Judge of that Court. His application for a certificate under clause 10 of the Letters Patent of the High Court was also rejected. The learned counsel for the appellant has contended that the judgment of the High Court appealed from was not a valid judgment because it failed to comply with Order XLI, rule 31, of the Code of Civil Procedure. We are unable to accept fully the above contention of the learned counsel. While dealing with the above Rule 31 of Order XLI, the Privy Council in the case of Gokal Chand Jagan Nath v. Nand Ram Das Atma Ram (66 I A 12), observed:- "The rule does not say, that if its requirements are not complied with the judgment shall be a nullity. So startling a result would need clear and precise words. Indeed, the rule does not even state any definite time in which it is to be fulfilled. The time is left to be defined by what is reasonable. The rule from its very nature is not intended to affect the rights of parties to a judgment. It is intended to secure certainty in the accertainment of what the judgment was. It is a rule which Judges are required to comply with for that object." No doubt, a non-compliance with the strict provisions of this rule may not vitiate the judgment and make it a nullity and the irregularity may be ignored if there has been substantial compli ance with it. it may, however, be pointed out that from such judgment a Letters Patent appeal could be entertained and when important questions of law are in issue it would be all the mere necessary that the appellate Court must state the points for determination, the decision thereon and the reasons for the decision. It is, therefore, obvious that Order XLI, rule 31, would apply to a summary dismissal of appeal under Order XLI, rule

11. The question whether in a particular case there has been a substantial compliance with the 'provisions of rule 31 would depend on the nature of the judgment which is under appeal. For example, if the finding on a question of fact has been arrived at on proper and legal evidence, there could thus be no ground for interference under section 100 of the Code of Civil Procedure and therefore there would be no necessity for strict compliance with rule

31. But, when important points of law are involved in the case the appellate Court must indicate the points raised and the reasons for its decision. In the instant case a number of mixed questions of law and fact were raised, namely, whether a waqf-alal-aulad was created by the will of 1927, whether a dedication by waqf was really intended and acted upon or whether the will which purported to create, a waqf was mere paper transaction never intended to be acted upon and whether it could be regarded as a testamentary waqf. It was also contended that the waqf was already in existence and the recitals in the will proved the said fact. These points, however, did not receive due consideration in the judgment of ;he High Court. The learned Single Judge after setting out the contentions of the appellant made the following remark:- "There is clearly a misapprehension in the mind of the appellant in contending that the document was an inter vivos waqf deed and at the same time contending that it only contained a recital of an existing fact." The learned Judge then disposed of the contention that 'as a soon as the words were uttered a waqf was created, it became complete and nothing else said in the same breath could in-validate it' by merely saying that. This argument to my mind is misconceived. This to our mind cannot be regarded as a proper adjudica tion of the points raised in this case. Having regard to the contentions raised in this case the learned Judge should have briefly indicated the reasons for rejecting the said contentions. We, therefore, feel it our duty to remit the appeal to the High Court for a proper decision. We, accordingly, allow this appeal and remand the case to the High Court for re-hearing, but make no order at to the costs of this appeal. Appeal accepted. Case remanded.