P L D 1959 (W (PLP)

MUHAMMAD SHAFI, J.‑This is a case in which Haji Mian Muhammad, who owns considerable immovable and movable property, has sown the seed of discord between his three children, Tila Muhammad, Abdullah Jan and Mst. Jan Sultan on one side, and his fourth child Haji Fazal Ilahi, on the other. We are informed that all these children were begotten to Haji Mian Muhammad from one wife, then why the preference is something which is very puzzling. It is our sincere wish that the father would remove the distinction while he is still alive and before it is too late.

2. The facts of the case which have given rise to two separate appeals by the afore‑mentioned Mian Muhammad and his son Haji Fazal Ilahi against the remaining three children of the former, are that Haji Muhammad, by a registered deed, dated the 14th July 1949, executed a deed, calling it as a deed of waqf alal‑aulad, for the benefit of his four children and their descendants, incorporating in it the following specific con ditions :‑ (1) That after his death his children would be considered as the rightful owners according to their Muslim Law shares. (2) These heirs or their descendants howlowsoever; would not be entitled to mortgage, sell or transfer the property in any way. (3) They would only be entitled to remain in possession of the property and derive benefit out of it. (4) The houses, the serais and the agricultural land which are used for residential purposes by his heirs or for the purpose of trade would continue to be respectively resided in by those heirs and used for the trade. His heirs would not insist to receive their income or the produce. (5) But, if this property is leased out, then the heirs would be entitled to the lease money, according to their Muslim Law shares, ‑but out of the lease money, Rs. 10 per mensem would be spent on charitable purposes. (6) Haji Mian Muhammad made himself the mutawalli so long as he lived, and after his death, all the heirs were to be entitled to remain in possession of the property under Act VI of 1913, and receive its income. The words used were "the beneficiaries are allowed to enjoy the rent of the ijara waghaira." In my view, the word "waghaira" shall have to be construed ejusdem generis, i.e., where the property v, rented out to other persons by the beneficiaries.

3. On the 2nd of November 1956, Haji Mian Muhammad sold away some of the property, about which he had written the deed of waqf‑alai‑aulad mentioned above, in favour of his son Haji Fazal Ilahi, for a sum of Rs. 8,

000. This transfer led Tila Muhammad, Abdullah Jan and Mst. Jan Sultan to bring a Suit on the 24th of January 1957, for declaration that Haji Mian Muhammad, after having made family settlement by way of waqf of the property, had no interest left in it, and therefore, the sale‑deed in favour of Haji Fazal Ilahi Eras ineffective and void.

4. The suit was contested both by Haji Mian Muhammad and Haji Fazal Ilahi.

5. As a result of the pleadings of the parties, the following eight issues were framed in the case (1) Does the suit lie in the present form ? (2) Is the court‑fee proper ? (3) Does deed, dated 14‑7‑1949 create "waqf‑ala‑laulad" for the benefit of the plaintiffs and defendant No. 2, and thereby the defendant No, 2 was to be mutawalli of the suit property till his death ? (4) Does the deed, dated 14‑7‑1949 amount to a bequest in futuro and is void ? (5) Should defendant No. 2 be deemed to have admitted the transaction embodied in the deed dated 14‑7‑1949, as "waqf alal‑aulad" because he was present before the Sub‑Registrar at the time of the registration of the document ? (6) Is the deed dated 14‑7‑1949 ineffective as it has not been acted upon ? (7) Is the sale by deed dated 12‑7‑1956 by defendant No. 1 in favour of defendant No. 2 valid ? (8) Relief.

6. Issues Nos. 1 and 2 were not pressed before the learned trial Judge, and were, therefore, answered in the affirmative. issues Nos. 3 and 4 were discussed together and it was held that the first deed created waqf‑alai‑aulad for the benefit of the plaintiff's and defendant No. 2, and that defendant No. I was in possession of the property as a mutawalli and had, therefore, no power to sell the property in the form of permanent nature to Fazal Ilahi.

7. On issue No. 5, the learned trial Judge observed that Fazal Ilahi was present at the time of the execution of the waqf deed and had also appeared before the Sub‑Registrar at the time of its registration. Fazal Ilahi, therefore, could not plead ignorance of the execution of the waqf deed, nor was he entitled to challenge its contents.

8. On issue No. 6, the learned trial Court found that there was no defect in the disputed waqf deed. On issue No. 7, he repeated his earlier findings, and granted the plaintiffs the decree as prayed against the defendants with costs.

9. The only question which is canvassed at this stage is, as to whether the first deed is a valid waqf deed. If, however, it is a deed of will in the garb of a waqf deed, then being in favour of the heirs, it will be completely invalid. This proposition of law is well settled and is not denied by the learned counsel for the respondents. Waqf as defined by the Mussalman Waqf Validating Act, VI of 1913 meens the permanent dedication of a person professing the Mussalman faith of any property for any purpose recognized by the Muslim law as a religious, pious, or charitable. Section 3 amplifies the word "purpose" occurring in the definition of the word "waqf". It lays down that the purpose of the waqf to maintain and support wholly or partially the waqif's family, children, or descendants amongst other purpose will be a good purpose but in such a case, the ultimate benefit should, be explicitly or impliedly reserved for the poor or for any purpose recognised by the Muslim Law as a religious, pious or charitable purpose of a permanent character. Under section 4 of the Act, the benefit for the poor or other religious, pious or charitable purpose of a permanent nature can validly be postponed until after the extinction of the family, children, or descendants of the person creating the waqf.

10. We have to examine the waqf deed in this case in the light of the provisions of Act VI of 1913 and have to see whether the waqf expressly or impliedly reserves the ultimate benefit for the poor or for any other purpose recognised by the Muslim Law as a religious, pious, or charitable purpose of a permanent character. The only express reservation made in the deed is a vague direction of the payment of Rs. 10 per mensem towards charity out of the lease money in case it becomes necessary for Haji Mian Muhammad's descendants to lease out the property, and not use it as they have been directed to do in the deed for residential purpose or for the purpose of trade. So long as Haji Mian Muhammad is alive there is no provision made in the deed that he will also be bound to pay Rs. 10 per mensem as charity.

11. The validity of a waqf involves that there is an intention' to dedicate on the part of the waqif. There should be al substantial dedication of property for any purpose recognised by the Muslim Law as religious, pious, or charitable, and the waqif. There should be only a veil to cover arrangements for the aggrandiseiment of the settlor's family and a device to make the property inalienable. If the preponderating feature of the waqf is intended to be the benefit of the settlor's family, and the reservation for the purpose recognised by the Muslim Law as religious, pious, or charitable is only illusory, then the waqf, in spite of the use of the word "waqf" in the deed, will not be a waqf validated under the Mussalman Waqf Validating Act.

12. In the deed of waqf, there should be a clear overriding charitable intention, either expressed in clear words, or by implication. Now, the payment of Rs. 10 per mensem towards charity, which is not absolute, but conditional, in my, view, was unsubstantial and illusory. The intention of Haji Mian Muhammad in executing the so‑called waqf deed, was exclusively to safeguard 'the benefit of his family, and nothing;

13. The learned counsel appearing for the respondents has argued that since no provision is made in the deed as to what would happen to the property in case Haji Mian Muhammad line, both through his sons and daughter, becomes, extinct, it should be implied there-from that the property would in that eventuality go to the benefit of the poor or used for the purposes recognised by the Muslim Law as religious, pious or chariable.

14. The word "impliedly" used in the proviso attached section 3 of the Mussalman Waqf Validating Act VI of 1913 only means that the reservation can be indirectly inferred from the recitals in the deed coupled with the surrounding circumstances. There must be some indication, either in the introductory portion of the deed, or in the recitals of the facts, or the rectal of the l object and purpose, from which a reasonable inference can be c drawn that the waqif had a possible ultimate benefit to the poor, or any religious, pious, or charitable purpose, in his mind. The mere fact that the waqif did not contemplate the extinction of the line of his descendants at all does not lead one to the inference that he made an implied reservation that in such an eventuality the property should be used for the poor, or any other religious, pious or charitable purpose.

15. If, we look at the deed in question, it is quite clear to us that it was a deed in which Haji Mian Muhammad by way of foresight, and for the sake of the maintenance of his daughter, and sons, executed this deed. During his lifetime he was to be the mutawalli of the property, paying nothing to his children or to the poor or for any pious, or religious purposes. After his death, his children were to occupy the property in accordance with Muhammadan Law share, that is, a son taking twice the share of a daughter, and using the whole income upon themselves without paying anything to the poor, which they were only liable to do if the property was leased out. The public could not control the property, nor had it any hand in its maintenance. Now, where it is stated that Rs. 10 per mensem would be paid as charity it is not mentioned what kind of charity Mian Muhammad had in his mind.

16. The effect, rather than the language of the deed, has to be construed, and doing that in the present case, we have no hesitation in arriving at the conclusion that there is no ultimate dedication of the character contemplated by the proviso attached to section 3 of the Waqf Validating Act.

17. In Muhammad Ali v. Dinesh Chandra Roy Choudhury (A I R 1940 Cal. 417), waqf was held to be invalid, because only certain trivial suns were made payable annually to the Imam of a masjid, to a high school and a girl school and a madrassa and two gold medals in certain circumstances. The rest of the income was divided among the members of the waqif's family, and on their deaths, among their eldest male issue.

18. In Sayed Mohiuddin Ahmad and another v. Shfia Khatoon and others (A I R 1940 Cal. 501), the waqf was held to be invalid, because the ultimate dedication to the poor, or to pious, religious or charitable purposes, was postponed till after the extinction of the family, children or descendants of the waqif on the ground that the ultimate gift to such purposes was too remote. It was held therein that if the ultimate gift to the poor, or to pious, religious, and charitable purposes is more remote, that is, if it is to take effect on the extinction of a more extended group of persons, as for instance, heirs, howsoever, low of the waqif, the dedication by way of waqf substantially for the maintenance of the waqif's family, children and descendants would not be valid under the Waqf Validating Act.

19. The waqf now before us suffers from the same defects. We have, therefore, no hesitation in accepting these appeals, setting aside the order and decree of the learned trial Court, and dismissing the plaintiffs' suit. But, bearing in mind that it is a case between the father and the sons, we leave the parties to bear their own costs throughout. ABDUL HAMID, J.‑I agree with my learned brother in the conclusion that the deed of 14th July 1949, executed by Haji Mian Muhammad is not a valid waqf deed within the meaning of the Mussalman Waqaf Validating Act, .1913, and the suit instituted by the plaintiffs, for the declaration that the property in suit was a part of waqf property and was not alienable, was liable to dismissal.

2. Transactions are to be judged by the characteristics which they bear and by the effects which they produce and not by the names assigned to them. A mortgage will not become a sale if it has all the characteristics of a mortgage even if the mortgagor has chosen to name it a sale. Similarly a deed called "waqf‑alal‑aulad" will be treated as such within the meaning of the Mussalman Waqf Validating Act, 1913 only if it has the essentials of a waqf and satisfies the conditions prescribed, for it, under that Act.

3. Judged by the provisions of the Mussalman Waqf Validating Act, 1913 the deed in hand does not conform to the tests laid down by that Act. There is in the first place no permanent dedication of property for a purpose which Muslim Law recognises as religious, pious or charitable and the deed for that defect does not fall within the language of the definition of "waqf" laid down in section 2 (1) of the Act. The contents of the deed show that property has been dedicated for the use of the settlor's heirs only. It is only when the property is to be let out on rent and not used by the settlor's heirs for their own purpose, that a small sum of Rs. 10 per mensem is to be spent on charitable purpose. Conditional dedication of such a small amount to charitable purpose is extremely illusory and invalidates the waqf.

4. It was no doubt competent to the settlor under section 3 (a) of the Mussalman Waqf Validating Act, 1913 to dedicate his property for the maintenance and support of his family, children or descendants and that would have been a purpose within the meaning of section 2 (1) of the Act. But in that case it was necessary under the proviso to section 3 that the ultimate benefit should have been expressly or impliedly reserved for the poor or for any other purpose recognised by Muslim Law as religious, pious or charitable. This was not done and the deed is defective on account of this omission.

5. It was also competent to the settlor to declare that the property will be applied for the benefit of the poor or for other religious, pious or charitable purpose on the extinction of his family, children or descendants. But he has riot made any such declaration in this deed either. There is no mention in the deed that the property will be applied ultimately for the benefit of the poor or for any other purpose recognised by the Muslim Law as religious, pious or charitable either during the lifetime of his family, children and descendants, or on their complete extinction. All that the settlor intended to achieve under the deed in hand was to protect the whole of the property from alienation so that it may remain preserved perpetually for the use and benefit of his family, children and descendants. There is no recognition either in Muhammadan Law or in the Mussalman Waqf Validating Act 1913 for an arrangement of this kind as a waqf. It is a device to preserve property for the benefit of the settlor's family under the cloak of a waqf and no system of civilized law would encourage it. Muhammadan Law does not prevent members of the settlor's family, his children and descendants from being beneficiaries from a waqf, but when they are the exclusive beneficiaries or beneficiaries in substantial measure, the law enjoins that a provision must exist in the deed that in the event of the extinction of such beneficiaries the property will be wholly applied for the benefit of the poor or for purposes which according to Muslim Law are charitable, pious or religious. There is no provision, either express or by implication, of this kind in this deed and for these defects it is not a valid waqf deed within the meaning of Mussalman Waqaf Validating Act, 1913 The suit was liable to dismissal. A. H. Appeal accepted.