P L D 1977 Supreme Court 75 (PLP)

MUHAMMAD AKRAM. J.-This is an appeal by special leave from the Judgment dated 20th June 1968, delivered by a learned Judge of the then High Court of West Pakistan at Lahore whereby he rejected Regular Second Appeal No. 350 of 1963 before him, affirmed the decree passed by the Additional District Judge, Multan in appeal of the contesting respondent No. 1 by reversing the decree of the trial Court and dismissing the suit filed by Abdul Ghafoor since deceased, now represented by the appellant herein. The dispute relates to a portion of house No. 1670, Ward. No. 7-Hindu, Bazar Chattar Hat, inside Pak Gate, Multan belonging to Haji Faiz Bakhsh deceased, a goldsmith. It is comprised of three shops on the ground floor and a chaubara on the first floor. In his lifetime he was himself residing along with the other members of his family in the upper storey of the house and had set up a modest goldsmith factory in one of the shops on the ground floor. On the 10th May 1939, Haji Faiz Bakhsh executed a registered tamliknama (Exh. P. 12) transferring 1/8th share in the immovable property in favour of Mst. Bakht Ilahi wife of his son Hussain Bakhsh in lieu of dower. Afterwards on the 30th November 1948, he executed a registered deed of Waqf-alai-aulad (Exh. P. 1) in respect of the house and factory belonging to him. He appointed himself as the first "Muhafiz" and Abdul Ghafoor, his brother-in-law, as his successor "Muhafiz" to administer the waqf property after him. Haji Faiz Bakhsh died on or about the 14th April 1949, leaving behind him a married son, Hussain Bakhsh respondent No. 2, a widow Mst. Hayat Khatoon respondent No. 3 and a married daughter Mst. Gulzar Begum respondent No. 4 herein. After the death of Haji Faiz Bakhab, his son Hussain Bakhsh respondent started intermingling with the property. On the 28th September 1951, in derogation of the waqf he even sold 1/3rd share in the house to Mst. Noor Begum respondent No. 1 by a registered deed of sale (Exh. D. 2). On the 4th October )951 two suits concerning this property were instituted in the civil Court at Multan. Mst. Bakht Ilahi brought her Suit No. 41/69 of 1953 for possession by partition of her 1/8th share in the house in dispute on the basis of the registered tamliknama executed in her favour by her father-in-law, Haji Faiz Bakhsh, on the 10th May 1939. She impleaded Abdul Ghafoor her own brother, in his capacity as the "Muhafiz" of the suit property, her husband Hussain Bakhsh, her mother-in-law, Mst. Hayat Khatoon and Mst. Gulzar Begum as defendants in her suit. Afterwards she also impleaded Mst. Noor Begum respondent as an additional defendant in the suit. Out of the defendants, Mst. Noor Begum alone contested the suit of the plaintiff on a number of pleas raised by her. Almost simultaneously Abdul Ghafoor filed the other Suit No. 42/70 of 1953 in the capacity as the mutwalli, against Hussain Bakhsh and others for a declaration that the house in dispute was dedicated as Waqf-alal-aulad by the late Waqif and for injunction restraining the defendants from interfering with his management and from alienating any portion of the property. At first Hussain Bakhsh, in his written statement dated 26th December 1952, resisted the claim of the plaintiff and denied the factum and validity of the alleged Waqf. He pleaded that on the death of his father, the property had devolved upon him along with the other heirs in accordance with the Shariat Law of Inheritance and disclosed that he had already sold 1/3rd share of the house to Mst. Noor Begum. On this the plaintiff impleaded Mst. Noor Begum as an additional defendant in his suit and prayed that the alleged sale by Hussain Bakhsh in her favour may also be declared null and void and of no legal effect. But afterwards Hussain Bakhsh in his subsequently filed written statement took a complete somersault and admitted the claim of the plaintiff: Mst. Noor Begum alone contested his suit on a number of pleas raised by her in defence. She inter alia objected to the frame of the suit for the declaratory relief, denied the factum and validity of the Waqf allegedly created by Haji Faiz Bakhsh deceased and pleaded that at any rate it was a fictitious and a colourable transaction designed by the Waqif to defeat his creditors and was never acted upon. She also invoked the protection of section 41 of the Transfer of Property Act, 1882, on the plea that she was a bonafide purchaser for 1/3rd of the house in dispute for valuable consideration. The pleadings of the parties gave rise to a number of issues framed by the trial Court in the two suits. The Senior Civil Judge, Multan consolidated the trial of the two suits and after recording the evidence disposed them of by a single judgment delivered on the 1st July 1955. He decreed Suit No. 41/69 of 1953 brought by Mst. Bakht Ilahi and passed a preliminary decree for possession by partition of her 1/ 8th share in the house validly transferred in her favour by her father-in-law in 1939. In the other Suit No. 42/70 of 1953, the trial Court held that the suit as laid for the declaration and permanent injunction was competent, that except for 1/8th share already transferred by him in favour of Mst. Bakht Ilahi, Haji Faiz Bakhsh validly created the Waqf-alai-aulad in respect of the rest of his house in dispute and movable properties and consequently the sale of 1/3rd share of the house made by Hussain Bakhsh respondent in favour of Mst. Noor Begum was ab initio void and ineffective. On these findings, therefore, the trial Court decreed the suit of Abdul Ghafoor, plaintiff. Dissatisfied, Mst. Noor Begum respondent then filed two separate appeals against the judgments and decrees of the trial Court in the two suits. On the 20th April, 1963, the Additional District Judge, Multan dismissed her appeal against the decree arising out of Suit No. 41/69 of 1953 instituted by Mst. Bakht Ilahi and upheld the transfer of 1/8th share of the house made in her favour by Faiz Bakhsh in 1939, This finding was not questioned on further appeal and is binding on the parties. But the Additional District Judge reversed the judgment and decree of the trial Court passed in the other Suit No. 42/70 of 1953 instituted by Abdul Ghafoor in his capacity as the 'mutwalli'. The Additional District Judge held that tie Waqf deed in dispute was a colourable transaction and was executed to defeat the creditors of the "Waqif" and that it was never acted upon. Moreover, Abdul Ghafoor plaintiff, not teeing in actual possession of the property, could not sue for a mere declaration and injunction. Thereby the learned Additional District Judge accepted the appeal of Mst. Noor Begum respondent against the judgment arid decree of the trial Court and dismissed the suit of Abdul Ghafoor. Abdul Ghafoor then filed the Regular Second Appeal No. 350 of 1963 against the decree in the High Court of West Pakistan at Lahore. He died during the pendency of the appeal and Ghulam Shabbir appellant herein, the eldest son of Hussain Bakhsh who according to the terms laid down in the deed of Waqf, was eligible for appointment as a 'Muhafiz' of the property, was brought on the record in place of the deceased. The appeal was eventually dismissed with costs by Mr. Justice Muhammad Gul, Judge of the High Court of West Pakistan at Lahore (as he then was) on the 20th June, 1968. The judgment gave rise to a petition filed by the appellant herein under clause 10 of the Letters Patent of the High Court of West Pakistan, Lahore for the requisite certificate. But before the matter could be disposed of by Mr. Justice Muhammad Gul, he was transferred as Secretary, Law Department, Government of Pakistan and the petition for certificate was rendered infructuous. In the circumstances the appellant was obliged to file the petition for special leave to appeal in this Court from the judgment dated 20th June, 1968 dismissing his Regular Second Appeal. The petition as filed in this Court was barred by 193 days and appellant also moved for condonation of the delay in his petition. This Court granted the leave to appeal to the appellant subject to all just exceptions and left the question of limitation open for its disposal with the appeal. We have heard the learned counsel for the two contesting parties. The question of limitation in the petition for special leave to appeal can be readily disposed before proceeding further. In this connection it may be mentioned that the appellant had filed his petition under clause 10 of the Letters Patent of the High Court of West Pakistan, Lahore within the prescribed period in the High Court for the grant of the requisite certificate. But before that petition could be heard and disposed of by Mr. Justice Muhammad Gul, he was transferred as Secretary, Law Department, Government of Pakistan. So that petition became infructuous for no fault on the part of the appellant and was returned to his counsel on the 18th April, 1969 under the order passed by the Chief Justice of the High Court. In these circumstances, within six days on the 24th April, 1969, the appellant filed the petition for special leave to appeal from the judgment in this Court. During these six days, the appellant was called from Multan and the necessary documents were prepared for presentation of the petition for special leave to appeal from the Judgment of the learned Single Judge. The appellant? also filed an application for condonation of the delay giving all these facts. In these circumstances we find that there were good and sufficient reasons for the delay in the petition for special leave, which is condoned. J'nrning now to the merits of this appeal. The Waqf deed (Exh. P. 1) in question was executed by Haji Faiz Bakhsh on the 30th November, 1948 and registered by the Sub-Registrar, Multan on the 4th December, 1948. It is stated in this document that Haji Faiz Bakhsh Waqif was the owner in possession of the house in dispute and has goldsmith factory installed in one of the shops which was run by an electric power motor. On the 16th January, 1948, the Waqif, before proceedings to Iraq for pilgrimage, entrusted the management of the factory to his only son, Hussain Bakhsh. He remained away from the country for about six months. On his return he found that his son had mismanaged the affairs of his factory and wasted his property in merry-making and visiting prostitutes. During his absence from the country the power motor was burnt and the factory was closed. In spite of this, his son kept on receiving silver and cash fraudulently from the customers. After his return when the Waqif took stock of the shop. he found that under his son the business had suffered a loss of Rs. 7,

000. The Waqif then took over the management and control of the factory and disowned any responsibility whatever for the debts thus incurred by his son during his absence abroad. The Waqif observed that his son, who was a profligate, did not properly feed his own family members dependent upon him and that very often he bad to meet the expenses of his family. In these circumstances he entertained a great apprehension and a fear that just after his death his son would sell and squander away his entire property in merrymaking. For these reasons, therefore, the Waqif voluntarily decided to create "Waqf-alal-aulad" of the movable and immovable properties and declared that his entire property shall remain dedicated as "Waqf alal-aulad-e-Narina". He emphasised that henceforth he shall have no right to sell the same and that he and his descendants will have only the right to the enjoyment of the income of the property and to reside therein. According to the terms and conditions of the deed of Waqf during the lifetime of the Waqif, he will himself be the 'Muhafiz' of the Waqf property and will feed himself and his family from its income. His son (Hussain Bakhah) shall have no right to get any money from the said property. In case his son were to work in the factory, he would be paid Rs. 3 per day as his wages and except for this he shall have no right to the income of the property. In case his son remains in the house or whenever he comes to the house, he will only take his meals from the house. He will bear his own expenses for clothes etc. and shall have no connection with the income of the property. The children born in the family of the Waqif or his daughters as long as they remain unmarried, will have the right to bread and butter and clothes and in case of their marriages, they will be entitled to dowery etc., but after their marriages, they shall have no lien on the Waqf property. In the bazar adjacent to one of the shops in question, there is a takht posh attached to the Waqf property it was expressly stipulated that after the death of the Waqif, his wife shall be entitled to the rent of the takht posh and the rent of one of the shops during her life-time. On her death, Mst. Bakht Ilahi, daughter-in-law of the Waqif, shall be entitled to the rent of the takht-posh and the shop to meet her miscellaneous expenses and she shall receive bread and clothing during her life from the income of the property. After the death of the Waqif, Abdul Ghafoor (brother of Mst,. Bakht Ilahi) will succeed as the `Muhaftz' of the Waqf property. He will have the right and option to appoint any body from his brothers or from his children to manage the property under him. In case Hussain Bakhsh his son, interferes with their management, the mischief could be stopped with the help of the police. It is further laid down as one of 'the conditions of the Waqf that in case Hussain Bakhsh marries a prostitute the issues from her will not be entitled to any maintenance from the income of the property. Mohammad Bakhsb, a cousin of the Waqif, will have the right to look into and inspect the accounts of the factory after his death. It is further observed in the Waqf deed that the factory had remained closed on account of the vagaries of his son and that he (the Waqif) was trying to again start the factory in the near future. The repairs to the house and factory will be done from the income of the factory. Towards the end of the deed of the Waqf the ultimate benefit to the charity was reserved by the Waqif in the following terms: "If God forbid his family becomes extinct then half of income of the factory will be given to the orphanage and the other half will be given to Madrisa Diniyat in Masjjid Chattarhat. They too will have no right to sell the property." It is also stipulated in the Waqf deed that the Waqif has two minor grand-sons, namely Ghulam Shabbir and Abdul Qadir alias Shaukat Hussain and that the management of the said property would be entrusted to any one of them who was capable and honest after he has attained majority. It appears that shortly after the deed of Waqf, on the 26th December, 19.18, one Ghulam Murtaza 1D. W. 3) took the takht posh on rent from Haji Hussain Bakhsh and executed a rent deed (Exh. P. 3) at the rate of Rs. 4 per month for a period of 11 months in his favour. 1n the rent deed Haji Faiz Bakhsh is described as the owner in possession of the takhtposh and the adjoining shop. This was followed by a rent-deed executed by Ghulam Murtaaa D. W. 3 for the takht-posh and a part of the shop in favour of Hussain Rakbsh on 15-12-1950, after the death of Haji Faiz Bakhsh. in the absence of the original rent-deed, a copy of the entries (Exh. D. 1) was produced from the deed-writer's register to prove the lease. Eventually, however, Ghulam Murtaza D. W. 3 surrendered possession of the demised premises in favour of Abdul Ghafoor plaintiff in his capacity as the mutwali of the Waqf on 5-3-1952 vide receipt Exh. P.

5. Although u. W. 3 Ghulam Murtaza prevaricated in his evidence in admitting the execution of Exh. P. 5 by him but the same was amply proved by its scribe Muhammad Hussain P. W.

4. On the 17th March, 1949, Haji Faiz Bakhsh entered into an agreement with P. W. 1 Mohammad Bakhsh to run the factory for a period of five years. It was agreed that Mohammad Bakhsh will retain 1/3rd share of the income in lieu of his services and will pay the remaining 2/3rd share of the income to Faiz Bakhsh. In the event of the death of latter during the term of the lease, 2/3rd share shall be paid to his widow Mst. Hayat Khatoon and on her death the share of the income shall be given to Mst. Bakht Ilahi, his daughter-in-law. It was further expressly stated in this agreement that Hussain Bakhsh shall have no right to the income of the factory or to interfere with its management. In case, however, Hussain Bakhsh were to work in the factory as a worker, he shall be entitled to wages at the rate of Rs. 2 per day as pocket money. It appears that Hafiz Ghulam Mohammad was an old tenant in respect of one of the shops. After the death of Haji Faiz Bakhsh he executed the? rent deed (Exh. P. 2) in favour of his widow, Mst. Hayat Kbatoon ors the 12th February, 1950, and used to pay the rent to her. In the rent deed it is expressly stated that the shop formed a part of the property dedicated by Haji Faiz Bakhsh deceased as Waqf alai-aulad under which the rife of the Waqif was entitled to receive the rent of the shop during her lifetime and if necessary the repairs to the shop shall be effected by Abdul Ghafoor, manager. In derogation of the Waqf on the 28th September, 1951 Hussain Bakhsh executed the sale deed (Exh. D. 2) for his 1/3rd share in the house in dispute in favour of respondent No. 1 for Rs. 4,

000. Needless to add that he by his conduct all along acted in repudiation of the Waqf created by his father. P. W. 1 Muhammad Bakhsh is a marginal witness of the deed of Waqf (Exh. P. 1). He deposed to its execution by Haji Faiz Bakhsh. According to him Hussain Bakhsh developed evil habits and wasted the property of his father. He sold away the material in the shop and for this reason the Waqf was created, The witness did not know if Hussain Bakhsh had incurred any debts. P. W. 2 Munshi Abdullah is the scribe of the Waqf-deed. He deposed that he wrote it in accordance with the instructions of Haji Faiz Bakhsh. According to him the executant bad told him that his son was a vagabond and was wasting property and that he should, therefore, write the Waqf-deed. The witness did not know whether Hussain Bakhsh had incurred any loan. P. W. 5 Sher Mohammad is also a marginal witness of Exh. P.

1. According to him Faiz Bakhsh created the Waqf of his property because Hussain Bakhsh had fallen into evil ways. In his cross-examination it was elicited from the witness that Hussain Bakhsh had incurred debts and ruined the business of the shop. Faiz Bakhsh, taking in view the wretched condition of his son had ereated the Wagf-alai-aulad. He created the Waqf so that his son may not waste his property after his death. In the absence of Faiz Bakhsh abroad Hussain Bakhah took advances from tenants and incurred debts. The defendant produced D. W. 2 Haji Rasool Bakhsh in rebuttal. He is a real brother of Faiz Bakhsh and a marginal witness of the deed of Waqf (Exh. P. 1). He deposed that Faiz Bakhsh had gone to Iran and had left the management of his shop in the hands of his son, Hussain Bakhsh. But Hussain Bakhsh fell on evil ways and indulged in prostitutes. He misappropriated the silver and gold belonging to the customers at the shop. Faiz Bakhsh came back after about 4 months and on his return the customers demanded their ornaments from him and threatened that otherwise they would get the same from the shop. On this, according to the witness, he advised him to consult Abdul Majid Qureshi, Advocate. The Advocate advised him to create a fictitious Waqf of the property to show to the creditors. The witness added that the deed was never acted upon and Hussain Bakhsh kept on residing in the house with his father. In his cross examination, the witness deposed that Hussain Bakhsh had wasted property worth Rs. 7,

000. But he had no knowledge about the many people who were thus affected and could not give their names nor did he have any information about the quantity of the material left by the customers in the shop. According to the witness, the above-named Advocate had prepared a draft of the Waqf deed (Exh. P. 1). Its scribe was Maulvi Abdullah. The witness stated that he did not know whether the factory was let out by Faiz Bakhsh to Mohammad Bakhsh or not. According to him Hussain Bakhsh was running the factory and that Mohammad Bakhsh was also running the factory. He further deposed that Ghulam Mohammad tenant of the shop was tendering rent to Hussain Bakhsh after the death of Faiz Bakhsh. At the same time he admitted that he had executed a rent deed in the name of the mother of Hussain Bakhsh. According to the witness none of the creditors of Hussain Bakhsh gave him any receipt or notice of the suit. He could not give the names of any of the creditors or the amount of money owing to them. He admitted that Hussain Bakhsh was drunkard,. addicted to intoxication and had a prostitute. Abdul Majid Qureshi, Advocate, was dead. On going through the evidence the trial Court observed that the waqfnama (Exh. P. 1) was an elaborate document and Haji Faiz Bakhsh felt the necessity in making the Waqf because his only son Hussain Bakhsh was a spendthrift. He had incurred debts and misappropriated the goods of the customers at the factory during his absence abroad. He feared that after his death, his son would fritter away all his property. It was, therefore, that be decided to create Wuqf-alai-aulad--Narina of all his movable and immovable properties and dedicated the same to Waqf. In coming to this conclusion, the trial Court was not at all impressed by the testimony of Haji Rasool Bakhsh (D. W. 2) who had introduced the story to the effect that the Waqf deed was fictitiously executed under the advice of a lawyer with a view to defeat and defraud the creditors. In the opinion of the trial Court, the testimony of the witness did not inspire confidence and has remained entirely uncorroborated on the record. The Court, therefore, found it highly unsafe to rely on his testimony. According to the trial Court, there was no suggestion, much less any evidence, to establish that the Waqif was in debt at the time of the creation of the Waqf. Hussain Bakhsh had, in the absence of his father, cultivated evil habits and incurred debts. But in the opinion of the trial Court his debts could not be charged on the property in dispute. None of the creditors of Hussain Bakhsh even came forward with a suit for recovery of the debts. The trial Court had no difficulty in concluding that the Waqf was created by Haji Faiz Bakhsh with a view to saving the property in dispute from Hussain Bakhsh and the defendant failed to establish that the Waqf was a fictitious transaction, not to be acted upon and was created merely as a show. In the opinion of the trial Court, there was nothing in the subsequent conduct of the Waqif to prove that be did not intend to act upon the Waqf created by him. He did not live long enough after the creation of the Waqf in dispute. In the opinion of the Court the rent deed (Exh. P. 3) dated 26th December, 1948, executed by Ghulam Murtaza (D. W. 3) in favour of Haji Faiz Bakbsh did not relate to any portion of the Waqf property. Under the agreement dated 17th March, 1949 (Exh. P. 4) Haji Faiz Bakhsh gave the factory on lease for five years to Mohammad Bakhsh. But according to Court there is nothing definite in this document to warrant the inference that it was made in derogation of Waqf and he did not intend to act upon the Waqf, in conclusion, the trial Court held that the defendant respondent No. 1 bad failed to establish that the Waqf was fictitious or that the Waqif had no intention to act upon it. On a reading of the waqfnama as a whole, the trial Court held that under it the ultimate benefit was reserved for religious and charitable purposes and that the Waqf was validly created in accordance with the provisions of section 3 of the Mussalman Waqf Validating Act, 1913. The Court further held that even though the plaintiff was not in possession of the property yet his suit in the present form was competent under the circumstances of this case. From the evidence the Court also concluded that Hussain Bakhsh was completely in the pocket of Mohammad Ali and was doing just as he wanted and that the transaction of sale in favour of respondent No. 1 was not protected as she was not a bona fide transferee of the property without notice of the Waqif. On appeal by respondent No. 1, the Additional District Judge reversed these findings. On going through the Waqf-deed (Exh. P. 1) he observed that Abdul Ghafoor plaintiff was appointed as a `Muhafiz' and not as a 'Mutwalli' or even as a Manager and expressed the doubt if at all he had any locus stand! to institute the suit. In tracing the background of the circumstances under which the Waqf was created, the Court observed that because of the misconduct of his son, Haji Faiz Bakhsh was annoyed with him and that the insult teas added to the injury when the creditors started harassing him for the misdeeds of Hussain Bakhsh. In arriving at this conclusion the learned Additional District Judge relied on the testimony of Haji Rasool Bakhah (D. W. 2) and held that the Waqf deed was a fictitious document executed to defeat the creditors and was never acted upon and that in spite of it the property remained the personal property of Faiz Bakbsh till his death. In coming to this conclusion, he also relied on the fact that hardly a few days after the deed of Waqf, Faiz Bakhsh gave the takhtposh of his shop forming part of the property in dispute on lease to flhulam Murtaza on the 26th December, 1948. In the rent deed (Exh. P. 3), Haji Faiz Bakhsh was described as the owner of the property. Similarly in the agreement dated 17th March, 1949 (Exh. P. 4) for the lease of the factory by Haji Faiz Bakhsh in favour of Mohammad Bakhah there was no mention of any Waqf having been made by him in respect of the property and to some extent its terms and conditions were derogatory to those in the waqfnama. In spite of the Waqf, under Exh. P. 4 Haji Faiz Bakhsh nominated his wife and daughter-in-law to succeed to the income of the factory after his death. Ghulam Murtaza (D. W. 3) denied the execution of the receipt dated 5th March, 1952 (Exh. P. 5) but in the opinion of the learned Additional District Judge no effort was made by the plaintiff to prove its execution by the witness. The learned Additional District Judge observed that after the death of Haji Faiz Bakhsh the suit property was solely possessed and dealt with by Hussain Bakhsh as a full owner vide Exhs. D. 1, D. 5 and D.

7. The lower appellate Court was also highly critical of the conduct of Abdul .Ghafoor plaintiff who while supporting the claim of his own sister. Nlst. Bakht Ilahi for possession of a part of this property, filed this suit on the basis that it was a Waqf property. In conclusion the learned Additional District Judge held that the property in question was never treated or considered ,as a Waqf property till Abdul Gbafoor plaintiff-respondent came forward with his suit and that too only after he had enabled his sister, Mst. Bakht Ilahi, to enforce her claim to a share in the property. Moreover, Abdul Ghafoor, being out of possession of the property, his suit for a mere ?declaration was not competent. In the opinion of the learned Additional District Judge, even otherwise the Waqf was not valid. In that connection he observed that in the deed of Waqf (Exh. P. 1) it is laid down that in the event of the extinction of the line of succession of the Waqif, half of the income of the factory shall be given to the orphanage and the other half to Madrisa Dinyat in Masjid Chattarhat. The location of this orphanage was not mentioned therein and that the income and that too of the factory only and of no other part of the suit property was ultimately dedicated for charitable purposes. Haji Rasool Bakhsh (D. W. 2) stated in his evidence recorded on the 8th February, 1952 that there was no Madrissa-i-Diniyat in existence in Masjid Chattarhat. In the opinion of the learned Additional District Judge the deed of Waqf was not genuine and was never acted upon, it was created for ulterior purposes to defraud the creditors and as such a formal registration of the deed did not possibly impute any notice of the Waqf to respondent No. 1, who was a bona fide transferee of a part of the property from Hussain Bakhsh for value. On second appeal by the plaintiff appellant the High Court observed that the two main grounds which weighed with the lower appellate Court in .dismissing his suit were (i) that the suit as laid by Abdul Ghafoor was not competent and that he was not in possession of the house and, therefore, could not sue for a mere declaration and injunction, without a further relief for possession; and (ii) that the creation of Waqf by Faiz Bakhsh was wholly fictitious designed to defeat his creditors. But in the opinion of the High Court the first ground above that had prevailed with the Additional District Judge was not at all tenable. Under the deed of Waqf the widow and the sons of the Waqif were given the right of residence in the property in dispute and they being in possession of the property, it was hardly necessary for Abdul Ghafoor (mutwalli) to have sued for possession of the property. In the circumstances, in the opinion of the High Court, the suit of the plaintiff for declaration with consequential relief for permanent injunction restraining Hussain Bakhsh from alienating the property in dispute, was competent. According to the High Court even otherwise, after the death of Abdul Ghafoor plaintiff during the pendency of the suit, the name of Ghulam Shabbir appellant was substituted as his legal representative to continue the appeal. Admittedly he was all along residing in a portion of the property in dispute and having regard to this subsequent event no objection could be had to the relief which could be allowed to him in law. The High Court, however, fully agreed with the findings by the Additional District Judge on the second ground in holding that the creation of Waqf by Haji Faiz Bakhsh was a fictitious and a colourable transaction designed to defeat his creditors. In arriving at this ,conclusion the High Court held that the Additional District Judge was justified in relying on the testimony of Haji Ghulam Rasool (D. W. 2) and rejected the view formed by the trial Court that it was unsafe to rely on .his testimony. Moreover, in the opinion of the High Court, the Additional District Judge bad rightly relied on the rent deed dated 26th December, 1948 (Exh. P. 3) executed by Ghulam Murtaza (D. W. 3) in favour of Haji `Faiz Bakhsh and on the agreement dated 17th February, 1949 (Exh. P. 4) executed by Faiz Bakhsh for the lease of the factory for five years to Mohammad Bakhsh in drawing the inference that he never intended to create any Waqf and that deed of Waqf was merely a paper transaction not intended to be acted upon. In the opinion of the High Court these two documents, explanatory as they were of the conduct of Haji Faiz Bakhsh, coupled with the forthright statement of his own brother (D. W. 2) Ghulam Rasool and the circumatance3 surrounding the execution of the deed of Waqf, all go to sufficiently establish the colourable nature of the Waqf, Before the High Court, on behalf of the appellants, great emphasis was laid on the fact that no evidence whatever was produced to show that at the time when Haji Faiz Bakhsh executed the deed of Waqf, he was under any financial stress and that, therefore, he was obliged to manipulate the Waqf so that his creditors may not be able to proceed against his property for recovery of these debts. It was, therefore, argued before the Court that in the absence of such evidence the declaration of Waqf by Faiz Bakhsh ought to be accepted as genuine. Hut the High Court repelled this contention, as in its opinion, the recitals in the Waqf deed gave an ample insight (into the frame of mind of Haji Faiz Bakhsh at the relevant time and observed ; "As pointed out already he (Fait Bakhsh) entrusted his entire business to his only son, Hussain Bakhsh during his visit to the holy places abroad. Obviously, his son managed business on his behalf as his agent. Therefore, if Hussain Bakhah ineurred debts in the name of business or otherwise misappropriated the property of the customers of Faiz Bakhsh, normally, as principal, he was liable for any misfeasance, nonfeasance and malfeasance of his son. Therefore, it is difficult to shed the impression that Faiz Bakhsh was under a genuine apprehension that the creditors of his son and his own customers would pester him with their harassing demands. It was precisely for this reason that Faiz Bakhsh until bemoaning the misconduct of his son was obliged to incorporate a recital in s m declaration of Waqf disowning liability for any debts incurred by his son during his absence abroad, unless he had that apprehension it was idle to incorporate that recital in the declaration of Waqf. Again, the manner in which the property was utilised or its income was to utilise unmistakably suggests that the dedication to charity, to say the least, was illusory. The orphanage and the Madrissa to which the income of the property was to be devoted in the event of extinction, of his lenial descendants existed only in the imagination of Waqif." On these findings the High Court did not deem it necessary to go into the further plea that at any rate the interests of Mst. Noor Begum respondent were protected, she being a bona fide transferee for value of 1/3rd of the .property without notice of the Waqf. Before proceeding further it shall be useful at this stage to briefly examine the ingredients that go to complete a Waqf of this nature. Indeed the law B -on the subject is well summarised in para. 186 of the Principles of Mohammadan Law by Mulla (17th Edn.). A Waqf inter vivos is completed according to Abu Yusuf, by a mere declaration of endowment by the owner. This view has been? adopted by the High Courts of Calcutta, Rangoon, Patna, Lahore, Madras and Bombay and by the Oudh Chief Court. According to Mohammad, the Waqf is not complete unless, besides a declaration of Waqf, a mutwalli (superintendent) is appointed by the owned possession of the endowed property is delivered to him. At one time- the High Court of Allababad adopted this view, but a Full Bench decision of that Court has since decided that mere declaration .of endowment by the owner is sufficient to complete the Waqf. The Nagpur High Court has also adopted this view. It is also noteworthy that as mentioned in para. 18b(2) by Mulla, the founder of a Waqf may constitute himself the first mutwalli (superintendent). The founder and the mutwalli being the same person, no transfer o1 physical possession is necessary, whichever of the above two view is upheld. Nor is it necessary that the property should be transferred from his name as owner to his name as mutwalli. In this connection in Mohammad Saeed and others v. Mst. Sakina Begum and other I L R 16 Lah. 432, the view was accepted hat a transfer of physical possession was not necessary to complete the Waqf where the Waqif was also the first mutwali and that consequently the Waqf was completed by a declaration to the effect, when the waqfnama was executed and registered. I have already noticed above in general the broad features of the deed Waqf dated 30-11-48 (Exh. P. 1) in question executed by Haji Faiz Bakhab. 1 a the deed the Waqif complained about the vagaries of his only son, Hussain Bakhsh, who was a profligate and visited prostitutes. It is mentioned in the document that on the 16-1-1948 the executant had gone to Iraq and entrusted the management of his factory to his only son. But during his absence abroad he mismanaged the affairs of the factory and misappropriated its assets. The power motor installed in the factory was burnt and the factory was closed. Despite this the son kept on receiving cash and silver from the customers fraudulently and misappropriated them. On his return from abroad Haji Faiz Bakhsh took over the charge of the factory and on verification of the stocks found that his son had caused a loss of Rs. 7.000 to the factory. In the deed the executant repudiated and disowned any responsibility for the debts incurred by his son. It is also mentioned by the executant in the deed that his son did not properly feed his family members and very often he (the executant) had to bear their expenses. All this is mentioned merely as a preface and a preamble in the deed of Waqf ,Exh. P. 1). In the operative portion of the Waqf, which follows the executant expressed a great fear and apprehension that just after his death his son would sell his entire property and waste away in merry-making. It was, therefore. for this reason that he voluntarily decided to create the Waqfalal-aulad of his movable and immovable property with the avowed object to protect and save it from the vagaries and clutches of his wasteful son and apply the income for his own maintenance and maintenance of his family members and for the ultimate benefit to charity. Indeed on a careful analysis of the deed of Waqf, I find that this was the only object in view of the executant which led him to create the Waqf. The whole trend of this deed leads to the irresistible conclusion that the Waqif took care and his only anxiety was to exclude his profligate son from the dedicated property and its income. On a rational interpretation of this deed it can be legitimately held that it was executed and was directed against the son of the Waqf himself and not against any alleged creditors, who were not even on the scene, so to say in order to defraud them. The execution of the deed of Waqf by Haji Faiz Bakbsh was not denied before us and even otherwise stands amply proved on the record from evidence. The Waqif deliberately executed the Waqf-deed on 30-11-1948 which was also duly registered by the Sub-Registrar at his instance on 4.12-1948. In this deed by this unequivocal declaration he created the Waqf-alal-aulad. He declared that his entire movable and immovable property shall remain Waqf-alal-aulad-e-Narlna. He divested himself of his rights in the property which was dedicated to Waqf. He further declared that he shall have no right to sell the Waqf property and that the executant and his descendants shall be entitled only to income and use of the property for their residence. He entered into the deed deliberately as a part of the scheme to conserve the property and its income for his progeny by excluding his only son who happened to be a saquanderer and spendthrift. In doing so the Waqif emphasized that his son shall have no right to get any money from the Waqf properties. In case, however, he wished to work in the factory, he would be paid daily wages at the rate of Rs. 3 per day. He was not entitled to interfere with the management of the Waqf properties. But his children and dependents were entitled to maintenance from the income of the property. It is provided in the Waqf-deed that after the death of the executant his wife shall be entitled to the rent of the "takhtporh" and a shop during her life and on her death his daughter-in-law shall be entitled to their rent. Haji Faiz Bakhsh the Waqif became the first mutwali (muhafiz) of the Waqf properties for his life and assumed charge of their management. He appointed Abdul Ghafoor, a brother of his daughter-in-law, to be his successor mutwalli (muhafiz) to look after and manage the Waqf properties after him. He also nominated Mohammad Bakhsh, one of his cousin, to look into and inspect the accounts of the aVaqf property after his death. The ultimate benefit in the Waqf properties was reserved for religious and charitable purposes. In that connection it was laid down in the Waqf deed that if God forbid the family of the Waqif became extinct, then half of the income of the factory will be given to the orphanage and the other half to the Madrissa Deniyat in Masjid Chatterhat. A bare reading of the Waqf-deed unmistakably shows that the dominant and the only object with which Haji Faiz Bakhsh executed the Waqf was to preserve and protect the property from the clutches :.f his reckless son and to devote its income to the purposes for which it was created. This intention he entertained from the very inception in creating the waqf. It is common ground in i.e evidence adduced by tile parties that Hussain Bakhsh. the only son of the Waqif, cad wasteful habits. He squanders the assets of factory during the absence of his father abroad. Eve Haji Rasool Bakhsh admitted that Hussain Bakhsh had fallen into evil ways and started visiting prostitutes. He used to drink and was an intoxicant. Similarly D. W. 3 Ghulam Murtaza admitted that Hussain Bakhsh did not bear good character and that he spoiled himself during the lifetime of his father. In this state of affairs, it was quite legitimate for the unfortunate father to have entertained bona fide and genuine apprehensions concerning the future of his properties falling into the hands of hiss son after him. Indeed, as the subsequent events go to show that in spite of the Waqf and in derogation thereof, the son took no time in disposing of a part of the property soon after the death of his own father. The fears thus entertained by the father during his life were not wholly without any foundation. It was precisely for these reasons that the father had in perfect good faith and in the scheme of things decided to preserve and protect his property and place it beyond the reach of his wasteful son and create a lawful Waqf in respect thereof. This was his real and bona fide intention and the who object in creating the Waqf and there was nothing unreal or fictitious about it. The Waqif unequivocally dedicated the property to Waqf and constituted himself as the first mutwalli. Thereby in accordance with the law discussed above the Waqf became complete and operative forthwith with the execution and registration of the Waqf-deed (Exh. P. 1). According to section 3(b) of the Mussalman Waqf Validating Act, 1913, it is lawful for a person professing the Mussalman faith to create a Waqf for the maintenance and support wholly or partially of "his family, children or descendants", provided the ultimate benefit is reserved for the poor or for any other religious, pious or charitable purpose. Relying on this clause in Mst. Mubarik Jan v. Mst. Taj Begum and others A I R 1938 Lah. 453, a Division Bench off the then Lahore High Court held that Waqf in favour of some members! of family or some children or descendants to the exclusion of others is valid. In Bell Ram & Brothers and others v. Ch. Muhammad Afzal and others P L D 1949 P C 8 the object in executing the deed of Waqf by the Waqif was to deprive hi daughter of a share in his estate which she would otherwise have taken as his heir. It was held by the Privy Council that such an object was not illegal. Therefore, the deed of Waqf in the instant case before us cannot be struck down merely on the ground that it has its object in excluding the son of Waqif who is a profligate. I find that neither the Additional District Judge nor even the High Court have adverted to this part of the plaintiff's case expressly set up from the very outset in his plaint. In this connection the trial Court in its judgment observed that the waqfnama was an elaborate document in which Haji Faiz Bakhsh had made it clear that the necessity had arisen for him to have created a Waqf of all his movable and immovable property, because his only son was a spendthrift and he feared that his son would fritter away all his property and that it was, therefore, that he created the Waqf-alai-aulad in respect of all his property and agreed that it shall remain Waqf so that neither he nor any of his heirs shall have the right to alienate it. But no heed was paid to the plaintiff's case by the Additional District Judge in appeal of the respondent. Even in second appeal beyond reproducing the recital in the deed of Waqf to that effect, the High Court too has not at all dealt with this aspect of the case of the plaintiff. This omission on the part of the two Courts to consider his case has resulted in great miscarriage of justice to him. What is more, the two appellate Courts, in reversing the findings of the trial Court, have altogether ignored the evidence of the three important witnesses (P. W. 1 Hussain Bakhsh, P. W. Munshi Abdullah and P. W. 5 Sher Muhammad) procured by the plaintiff to prove the Waqf. They are the marginal witnesses of the Waqf-deed (Exh. P. 1) and deposed that Haji Faiz Bakhsh had created the Waqf because of the wreckless and wasteful habits of his son. Indeed the two Courts accepted the evidence of D. W. 2 Haji Rasool Bakhsh as a gospel truth, without even considering the most material evidence produced by the plaintiff on this vital aspect of his case. To say the least the findings thus recorded by the two appellate Courts in favour of the defendant-respondent are wholly one-sided. They have neither dealt with the plea of the plaintiff nor considered his evidence in disposing of this issue. In this manner the case of the plaintiff has almost entirely gone by default. As such no finality and sanctity could be attached to their findings on this part of the case. It has, therefore, devolved upon this Court to go into the evidence in order to do complete justice between the parties. The case set up by the defendant in defence was even squarely put to the above-named three witnesses produced by the plaintiff in their cross-examination to elicit that the deed of Waqf was fictitiously executed by the Waqif merely to defeat his creditors. P. W. 5 Sher Muhammad, one of the marginal witnesses, candidly admitted in his cross-examination that Hussain Bakhsh had incurred debts and ruined the business of the shop. He further deposed that Faiz Bakhsh had a fear that after his death Hussain Bakhsh would squander away his property and that the Waqif discussed this matter with a lawyer who advised him to create the Waqf. But then he was not asked any question in cross-examination if Faiz Bakhah had created the Waqf fictitiously for fear of the creditors and to defeat them. D. W. 2 Haji Rasool Bakbsh is a real brother of Haji Faiz Bakhsh deceased and a marginal witness of the deed of Waqf (Esh. P. 1) executed' by him. For reasons best known to him he has deposed in favour of the contesting respondent No.

1. But the trial Court was not impressed with his testimony. On a careful consideration I find that he has tried to improve upon facts. His evidence on the whole does not inspire the confidence of a truthful witness. He, in his keenness as a witness for the defendant, in his cross-examination, at first deposed that Hussain Bakhsh was running the factory. But then perhaps realising that during his lifetime Haji Faiz Baksh had already given the factory on lease to Mohammad Bakhsh for a period of five years by a registered deed, the witness was obliged to admit that be was also running the factory. In another place in his cross-examination the witness deposed that Hafiz Ghulam Mohammad was paying the rent of his shop to Hussain Bakhsh but in the next breath he admitted that he bad executed the rent deed for the shop in the name of the mother of Hussain Bakhsh. The witness did not remember whether Hussain Bakhsh was a friend of Mohammad Ali or not. According to the witness Abdul Majid Qureshi, Advocate had also prepared a draft of the Waqf-deed in question for Haji Faiz Bakhsh. But the alleged draft was neither summoned nor produced in the evidence. On the other hand the statement of the witness is belied by the testimony of P. W. 2 Munshi Abdullah the scribe of the Waqf-deed (Exh. P. 1). He deposed that he wrote the deed at the asking of Haji Faiz Bakhsh under his instructions D. W. 2 Haji Rasool Bakhsh deposed that the said lawyer had advised the Waqif to create a fictitious Waqf of the property to show to the creditors. But on the other hand in this connection P. W. 5 Sher Mohammad stated that Haji Faiz Bakhah was afraid that after his death Hussain Bakbgh would squander away all his properties. He. therefore, discussed this matter with a lawyer who advised him to create the Waqf. Out of the two witnesses, D. W. 5 Sher Mohammad has made by far a candid statement in his cross-examination and has impressed me with his testimony. In the plaint the plaintiff pleaded that defendant No. I was the only son of Haji Faiz Bakhsh. He was a profane, vagabond and had taken to evil habits. It was, therefore, that his father dedicated his entire property as Waqf-alal-aulad. In her written statement the contesting defendant respondent No. 1, inter alia pleaded that at any rate the Waqf-deed way executed fictitiously with the intention to defeat the creditors and was never acted upon. This plea, to say the least, was highly vague. The written statement did not contain any particulars of the alleged creditors and the circumstance which led to the making of the fictitious deal. As a rule the pleadings must contain material facts on which a party relies for his claim or defence. In particular, rule 4 of Order VI of the Civil Procedure Code lays down that in all cases in which the party pleading relies on any misrepresentation, fraud, breech of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are in the form examplified aforesaid, particulars (with dates and items if necessary; shill be stated in the pleading. In Bal Gangadhar Tilk and others v. Shrinivas Pandi and others AIR1915PC7, it was held that in pleadings general allegations, however strong may be the words in which they are stated are insuffcient even to amount to an averment of fraud of which any Court ought to take notice. In this case the vague allegations taken by the defendant in her written statement could have resulted in prejudice to the plaintiff at the trial. But I find that no such objection was at all raised by him at any stage at the trial and in any of the three Courts. As such' as held in Bharat Dharma Syndicate Ltd. v. Harish Chandra AIR1937PC146, the objection cannot he allowed to be raised for the first time at this late stage before us. The transaction in dispute as reflected by the apparent tenor of the registered deed of Waqf (Exh. P. 1) duly executed by Haji Faiz Bakhsh must be presumed to be real unless contrary is proved by the contesting defendant. The onus rested heavily on her to affirmatively establish by legal evidence that the transaction in question was unreal and fictitious. Suspicious circumstances raising doubts and suspicions in Judge's mind are not sufficient to discharge the onus and base his decision on them as a substitute for legal evidence. It cannot be denied that in this case evidence was led to prove that Haji Faiz Bakhsh had entrusted the management of his factory to his son before proceeding abroad for pilgrimage. In his absence his son mismanaged the affairs of his factory, misappropriated the ornaments etc. by the customers and had incurred debt, resulting in losses to the business. However, all this evidence is mostly vague and much too general. There is no cogent evidence whatever produced on the record to identify the creditors and the nature and the amount of debts due to them. No reliable evidence has been brought on the record to show that at the time of the execution, of the Waqf-deed in question the estate of Haji Faiz Bakhsh was under) any imminent pressure of those debts. In that connection D. W. 2 Hajil Rasool Bakhsh admitted in his cross-examination that none of the creditors) of Haji Faiz Bakhsh gave any notice of suit to him. Indeed we now know it as a fact that upto date, they did not file any such suit against him. In the deed of Waqf the Waqif expressly disowned any liability for the debts said to have been incurred by Hussain Bakhsh. This statement in the Waqf-deed may or may not be correct. But that circumstance alone is not sufficient to fix the Waqif with the fraudulent intention to defeat his creditors. In S. Afzal Hussain v. Cheddi Lal and others A I R 1935 All. 792 it was held that a statement in the deed of Waqf that the property was free from all sorts of debts and liens, although it may be incorrect, did not indicate that the Waqf was made with any fraudulent intention. Except for the uncorroborated add discredited statement of D. W. 2 Haji Rasool Bakhsh that Abdul Majid Advocate had advised Haji Hussain Bakhsh on the point there is nothing on the record to warrant the conclusion that he had created the Waqf fictitiously with the mala fide intention to defeat his creditors. As such in my considered) opinion the conclusion drawn by the High Court that Haji Faiz Bakhsh had created the Waqf fictitiously for fear of the creditors is based on no evidence and is altogether far-fetched. In this connection before us the learned counsel for the appellant has relied on Zafarul Hassan and others v. Farid-ud-Din and others AIR 1946 P C

177. In that case it was held that under section 53 of the Transfer of Property Act a Waqfnama which is alleged to have been made by the settler with intent to defeat or delay his creditors would only be voidable at the option of the creditors so defeated or defrauded and that the deed would not be revocable by the settler and would bind him and his heirs. But this authority is hardly in point, for the simple reason that benami, colourable, sham and fictitious transactions are distinguishable from those falling under section 53 of the Transfer of Property Act. In the former there is in fact no transfer of property which is merely put in a false name. Such transactions do not require to be set aside for the real title all along remained where it was before the ostensible transfer. The learned Additional District Judge as well as the High Court strongly relied on the subsequent conduct of Haji Faiz Bakhsh after the execution of the deed of Waqf in holding that it was not a real but a fictitious transaction designed to defeat his creditors and was never acted upon. In this connection I have already held that the Waqf-deed was a genuine transaction. Haji Faiz Bakhsh executed and registered the deed 'with the real and bona fide intention to dedicate his properties to Waqfalal-aulad and that there was nothing fictitious about it. Therefore the Waqf once made cannot be invalidated by any subsequent conduct on the part of the Waqif derogatory to the Waqf. In Mohammad Saeed and others v. Mst. Sakina Begum and others it was held that the Waqf once made cannot be invalidated by a subsequent inaction of the Waqif nor by a mere assertion in any subsequent document that he had not acted upon the Waqfnama since its registration. Similarly in Yunus Mian Ch. v. Feroze Ch. P L D 1952 Dacca 206, it was observed that malfeasance or misfeasance on that part of the mutwalll cannot invaltdnte a Waqf which at its creation was a valid Waqif. If the Waqif .,wade the Waqf in g., d faith and with real intention of devesting herself of the ownership of the Waqf properties it was a valid Waqf In Ch Mohammad Afzal and others v. Ch. Din Mohammad and others A I R 1947 Lah. 117, the facts were that the Waqif had after the creation of the Waqf granted leases, effected mortgages and made? applications for repairs and alterations of the property to the municipal authorities and in all those transactions he described himself as the owner,? In that connection the Court held that these subsequent acts may and very frequently do amount to a breach of trust, but from a breach it was impossible to argue that there never wag a trust created On appeal from this case in Bell Ram & Brothers v. Muhammad afzal. their Lordships of the Privy Council affirmed these findings and observed that it is the established law that once there is an effective dedication in Waqf, it cannot be revoked and that breaches of trust on the part of the trustee however numerous and extending over, however long a period, cannot put an end to the trust. it is also equally clear that the mere fact that the Waqf property was not actually transferred in the name of the mutwali in the register of mutation or other documents, is not necessarily fatal to its character. In Beli Ram & Brothers v. Muhammad Afzal, the property was not transferred in the mutation register into the name of the Waqif as mulwalli and he continued to grant tenancies in his own name. The Privy Council held that it was not necessary under the Hanafi Law that there should be a change in the mutation registar. Also in Ch. Muhammad Afzal and others v. Ch. Din Muhammad it was held that the fact that the Waqif who was the tirst mutwalli had not got the mutation effected in his name as a mutwali was not essential to the validity of the deed of Waqf and per se could not show that there was no intention to create a Waqf or that the document purporting to create the Waqf was a fictitious document. Also in Alimunnisa Bibi v. Muhammad Abdur Rehman and others A I R 1938 All. 485, the Court held that if the Waqf was validly created then the mere fact that subsequently members of the family of executant were negligent in getting mutation made in the correct manner is a matter which has no bearing on the question of the validity of the Waqf. Therefore, in the circumstances of this case it did not matter much that in spite of the creation of the Waqf no changes were effected in the ownership of the property recorded in the personal name of the Waqif in the Excise and Taxation and Property Tax registers. Even otherwise there was nothing unequivocal in the subsequent conduct of Haji Faiz Bakhsh to lead to the conclusion that he had deliberately repudiated the Waqf and acted in breaches thereof. He did not live long enough after the creation of the Waqf and died on or about 14-4-1949. Hardly a few days after the creation of the Waqf he gave the takht posh forming a part? of the Waqf property on lease to Ghulam Murtaza (D. W. 3) who executed the lease deed (Exh. P. 3) in his favour. In the lease deed thus executed by Ghulam Murtaza the Waqif is mentioned as the owner of the property. He executed another lease deed for a part of this property in favour of Hussain Bakhsh as owner on 15-12-50 (vide copy Exh. D. 1). But afterwards on 5-3-1952 (vide Exh. P. 5) Ghulam Murtaza himself surrendered the possession of the demised premises on the termination of his tenancy in favour of Abdul Ghafoor plaintiff in his capacity as the then mutwalli of? the property. Under the terms and conditions of the deed of Waqf Haji Faiz Bakhsh was entitled to receive the rent and profits of the property for his life. Therefore it could hardly be urged that he was at all guilty of any misappropriation of the income of the Waqf property in granting the lease of a part of this property to Ghulam Murtaza D. W. and the fact that in the lease-deed (Exh. P. 3) he was mentioned as the owner of the property could as well be attributed to an innocent mis-description of his true legal character. Before proceeding further I cannot but fail to observe that D. W. 3 Ghulam murtaza prevaricated in his cross-examination in admitting the execution of the receipt Exh. P.

5. But its execution was amply proved by the testimony of its scribe, P. W. 3 Muhammad Hussain produced by the plaintiff. Relying on his evidence the trial Court held that the execution of the receipt by Ghulam M urtaza was fully proved by him. But on appeal the learned Additional District Judge in complete disregard of this evidence erroneously observed that no effort was made by the plaintiff to substantiate the execution of the receipt (Exh. P. 5) by D. W. Ghulam Murtaza. His finding in this regard is vitiated and is based on a patent misreading of the evidence on the record. The High Court does not seem to have even adverted to this document discussed by the two Courts below. The agreement dated 17-3-49 (Exh. P. 4) was executed by Haji Faiz Bakhah in favour of Mohammad Bakhsh. Under it the executant gave the factory on lease to Mohammad Bakhah to run it for a term of five years. It was agreed between them that Mohammad Bakhsh shall retain 1/3rd share of the income in lieu of his services and shall give the remaining 2/3rd share of the income to Faiz Bakhsh. It was expressly stipulated that in the event of the death of Faiz Bakhah during the term of the agreement his share of the income shall be paid to his widow, Mst. Hayat Khatoon and on .her death to his daughter-in-law, Mst. Bakht Ilahi. It was further agreed that Hussain Bakbsh shall have no right to interfere with the management of the factory or its income. In case, however, he wished to work in the factory he shall be entitled to wages at the rate of Rs. 2 per day. . There is not even a mention of the Waqf in this agreement (Exh. P. 4) which is altogether silent about it. However. broadly speaking the agreement was executed on the lines and in keeping with scheme of the Waqf deed and runs almost parallel to it. The immediate object of the Waqf was to exclude Hussain Bakhsh from the `enjoyment and income of the factory. He was not entitled to interfere in the management of the factory. Under it during the term of the agreement, Faiz Bakhah was entitled to the share of the income of the factory and in the event of his death it devolved successively upon his widow and then on his daughter-in-law for the maintenance of her children. In this connection the learned Additional District Judge has misconstrues! the Waqf deed in observing that the Waqf (Exh. P. 1) was created by the Waqif in favour of his male line of descendants to the exclusion of the two ladies who were the members of his family. In fact the Waqf deed clearly contemplates that the balance income of the factory shall be paid to the daughter-in-law of the Waqif. Even though in Exh. P. 4 some departure was made from the terms of the Waqf deed yet it cannot be held that the agreement was wholly contrary to deed of Waqf. At any rate, as already discussed above, these departures in the terms of this subsequently executed agreement do not go to invalidate the Waqf lawfully crated by the Waqif. Nor can the subsequent conduct of Hussain Bakhsh, after the death of Faiz Bakhsh, in disregard of the Waqf be construed to militate against it. Nor even the conduct of the plaintiff is relevant to detract from the factum and validity of the Waqf. In passing it may be mentioned that under the Waqf deed Haji Faiz Bakhsh appointed himself as the "muhafiz" (care-taker) and after him Abdul Ghafoor plaintiff was nominated to succeed as the "muhafiz to manage the Waqf property. From this the Additional District Judge was inclined to hold that in reality the plaintiff was never appointed as the mutwali of the Waqf and had, therefore, no locus standi to sue. But there is nothing in name only, reading the Waqf deed as a whole the "muhafiz" had in actual fact all the powers and duties of the mutwali to manage and administer the Waqf and its property. In my opinion, therefore, the lower appellate Court was not justified in observing that the plaintiff had no locus standi to sue in this case. The learned counsel for respondent No. 1 has also assailed the legality of the Waqf-deed in question.. It is laid down by the Waqif in the Waqf. deed as one of its conditions that if God forbid his family becomes extinct then half of income of the factory will be given to the orphanage and the other half will be given to Madrissa Diniyat in Masjid Chattarhat. In this connection the trial Court has held that under the Waqf-deed the ultimate benefit was reserved for religious and charitable purposes in accordance with the proviso to section 3 of the Mussalaman Waqf Validating Act, 1913 and, therefore, read as a whole it was valid in all respects. But on appeal the learned Additional District Judge reversed the findings holding that actually there was no Madrissa Diniyat in existence in Bazar Chattarhat nor was the location of the orphanage specified in the Waqf-deed. Moreover under the Waqf only the income of the factory and no other part of the suit property was ultimately dedicated for charitable purpose. For these reasons, therefore, in the opinion of the lower appellate Court the Waqf was not valid in law. On further appeal the High Court for somewhat similar considerations held that the orphanage and, the Madrissa, the ultimate beneficiaries under the Waqf did not even exist and the dedication to charity was .also illusory. Under section 3 of the Mussalman Waqf Validating Act, 1913 it is lawful by any person professing the Mussalman faith to create a Waqf inter alia for the maintenance and support, wholly or partially, of his family children or descendants. This is, however, subject to the proviso that the ultimate' benefit in such cases is expressly or impliedly reserved for the poor or for any other purpose resognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character. As already stated above according to the Waqf deed in the event of extinction of lineal descendants of the Waqif, half the income from the factory will be given to the orphanage and the other half to Madrissa Diniyat in Masjid Chattarhat. In this connection the two appellate Courts have relied on the testimony of D. W. 2, Haji Ghulam Rasool who deposed that there was no Madrissa Diniyat in Bazar Chatterhat. But according to P. W. 9, Abdul Ghafoor plaintiff there was a Madrissa and orphanage in the mosque of Chattarhat. However, as already discussed above, P. W. 5 Sher Mohammad has made a candid and forthright statement. He is a witness of truth. He admitted that there was no orphanage in mohalla Chattarhat but that there is a Madrissa Diniyat in the mosque of this mohalla. The two appellate Courts in coming to their conclusion have altogether failed to consider the entire evidence on the point including that of this witness. According to para. 181 of Mulla's Principles of Mohammadan Law (17th Edn.), where clear charitable intention is expressed in the instrument of Waqf, it will not be permitted to fail because the objects, if specified, happen to fail, but the income will bb applied for the benefit of the poor or to objects as near as possible to the objects which failed. Similarly according to Muslim Law by Saksena (3rd Edn., page 526), mere vagueness or uncertainty will not lead to failure of a Waqf, for under such circumstances the law itself would supply the defect by declaring the object of dedication, or even if they are not expressed to support the poor. When the dedication is to a religious or charitable institutions which in course of time cease to exist, the Waqf property will not revert to the Waqif or his representatives. but would be applied to some other similar religious institutions or to an, other object by. which human beings may be benefited. As far as possible it should be applied to objects as similar in character as the object named by the Waqif. In case of-non-existence of an intended mosque or Madrassa, it may be applied to another similar mosque or Madraosa, regard being had to the intention of the Waqif as far as possible. This is in accord with the doctrine of Cypres applicable to the Muslim Law. In Abdul Hamid Qureshi v. Ch. Fateh Muhammad Sheifta (1), B. Z. Kaikaus. J. (as he then was), with whom late Shabbir Ahmad,J. agreed, has discussed the law at some length by reference to some of the original authorities. In that case the facts were that the Waqif had decided to establish a Tablight University. But due to unforeseen circumstances the sum that had been raised for the purpose was found to be insufficient for the establishment of the University. The Court held that even if the establishment of a Tablight University was impracticable the Waqf will not fail and the money thus raised shall be applied to other similar objects. In this connection it shall be worthwhile to reproduce in extenso from the discussion on the subject: "As Ameer Ali states in his Muhammadan Law (Vol. 1, p. 414) the Cypres doctrine has carried to its utmost limit in Muslim Law and similar is the opinion of Tyabji (p. 600) who says the principle underlying the doctrine is deeply rooted in Muslim Law. Wilson has expressed the same opinion in para. 422 of his Anglo Muhammadan Law. According to the Fatawa Kazi Khan (p. 595, Note II of.Tyabji) "when the purpose of a Waqf fails, it is lawful to apply the income of the Wakf property to an object whereas in its Nature to the Original Purpose. For example if the object of a Wakf is a fountain the income may be applied to a tank or canal if it is a mosque the income is to be applied to another mosque, or to fasting, prayers ere. Ameer Ali thus states the rule of Hanafi Law: In connection with the foregoing subject, it must be remembered that the failure or non-existence of the initial or primary object of a Waqf does not, under the Hanafi Law, affect the operative character or validity of the Waqf; or avoid it. So also the failure or extinction of the intermediate objects only accelerates the ultimate reversion, but does not cancel or avoid the Waqf." In Sharaiul-Islam it is stated - "If one should make an appropriation for a maslahat, or object of general utility. which has ceased to be used, it is to be applied to any good and pious purpose. And if it is for such purposes generally, it is to be expended on the poor and indigent, and in any other way by which an approach is made to Almighty God, (p. 599 of Tyabji). Para. 481 of Tyabii runs: "(1) Where a dedication by way of Wakf expresses or implies a general charitable intention, but either specifies no objects or specifies objects that have failed, the property may, by an order of the Court, be devoted to the poor, or to charitable objects approximating to those that have failed. (2) A dedication made generally for charity or for good objects, without specifying them, may be given effect to, if necessary, by the Court framing a scheme. Explanation.-Where a dedication by way of Wakf is purported to be made without specifying its object and the Waqif takes no step to give effect to the dedication or to utilize the property for objects which may lawfully be the objects of a Wakf an inference may be drawn that no dedication was in good faith intended or completed: (Section 462). Under Abu Yusuf's exposition of Hanafi Law, if a declaration of Wakf is made, it is conclusive proof of a general charitable intentions but, it is submitted that the true effect of the law at the present time is as stated and explained above." In Abdul Rahim's Muhammadan Jurisprudence the doctrine is similarly expressed (p. 305): "If, however, the specified objects be limited or happen to fail but a general charitable intention is to be inferred from the words of the grant, the Waqf will be good and the income or profit will be devoted for the benefit of the poor, and in some cases, to objects as near to the objects which failed as possible . This rule is analogous to the dectrine of Cypres of the English Law". It will be observed that in Fatawa Kazi Khan and the Sharaiul-Islam as well as Amear Ali there is no condition as to the existence of a general charitable intention which is mentioned in Abdul Rahim and Tyabji. But this really does not make any difference, when a Muslim creates a Waqf his object is to obtain the approval of God. He may give directions for the application of the income of the property to that charitable object for which he feels the need or which is nearest his heart but it is not to be presumed that in case the particular object fails he intends the property to revert to him for that is not consistent with the pious intention which is the motive for the act. In the absence of clear evidence to the contrary we should assume a general pious intention when a Muslim creates a Waqf or trust for a charitable or religious object. This is in accordance with the opinion of Abu Yusuf. It is stated in Hedaya (Vol. 11. p. 341): Abu Yusuf maintains that when the appropriator names an object liable to termination (as if he were to say `I have appropriated this to Zaid'). It is valid and after the death of Zaid it passes, as an appropriation to the poor although the appropriation has not named them." From the evidence of P. W. 5 Sher Mohammad I am satisfied that there is a Madrassa Diniyat in the mosque in mohalla Chattarhat, It was stipulated that half the income of the factory shall be applied to the Madrissa in the event of the line of the Waqif becoming extinct. The other half of income had to go to an orphanage. No particular orphanage was specified in the deed of Waqf. It only means that the dedication is not to any specified orphanage but to the orphanages generally. It cannot be denied that this objects in itself is religious, pious and charitable purpose of a permanent character. In Salihai v. Rai Saeabu 36 Bom. 111. it was held that a dedication, made generally for charity or for good objects, without specifying them, will be valid and will be enforced by Court framing, if necessary, a scheme for charity. According to "Shiraj-ul-Wahaj" the object of the Waqf need not be mentioned and where a clear intention is shown to make a Waqf, it will be applied for the benefit of the poor. According to the Waqf deed income of the factory alone was dedicated to. the religious, pious and charitable object in the event of the extinction of the line of the descendants of the Waqf . But there is nothing to show that income of the factory was .altogether negligible and not substantial. In the circumstances the High Court was not justified in observing that the Waqf was illusory. Indeed the two appellate Courts have erred in -finding against the appellant without any discussion of the law on the subject. Their findings are, therefore, liable to be reversed. Before us the learned counsel for the respondent has also pressed his objection against the frame of the suit brought by the plaintiff, He maintained that the plaintiff was not proved to be in possession of the property in dispute and his suit for declaration simpliciter was not competent. In that connection the trial Court observed on the evidence that the plaintiff was already in possession of the property. But the finding was reversed in appeal by the Additional District Judge. In his opinion Abdul Ghafoor plaintiff was not proved to be in possession of the property and as such his suit for declaration was not tenable. However, on second appeal the High Court took the view that the widow and the descendants of Waqif were given the right of residence in the property in dispute and they being in possession thereof under the Waqf it was hardly necessary for Abdul Ghafoor plaintiff, in his capacity as mutwalli, to have sued for the possession thereof and as such his suit for declaration with consequential relief of permanent injunction against Hussain Bakhsh restraining him from alienating the property was competent. But it appears to me that these findings by the three Courts are not based on a proper reading of the evidence on the record. The house in dispute is comprised of three shops on the ground floor and a residential portion above them forming the first storey. The beneficiaries under the deed of Waqf are entitled to reside in the house. It was virtually conceded before us and even otherwise it stands proved on the record that the Waqif during his lifetime and after him his widow along with his daughter-in-law and other dependents are residing in the first storey of the house. Abdul Ghafoor plaintiff filed his suit on the 6th of October, 1951. Before it on 17-3-1949 Haji Faiz Bakhsh Waqif gave the factory in one of shops on lease to Mohammad Bakhsh P. W. for a term of five years. His possession was throughout under the Waqf and its beneficiaries and never adverse to them. P. W. 1 Mohammad Bakhsh deposed that there were the three shops in the property. According to him in one of the shops there was the factory run by him. The second shop was occupied by Hafiz Ghulam Mohammad as a tenant. He had executed lease deed dated, 12th of February, 1950 (Exh. P. 2) in favour of the widow of the Waqif. The third shop was held by Muhammad Ali as a friend of Hussain Bakhsh for the past 4/5 months. The statement of the witness was recorded on the 12th of July, 1952 and at best according to this statement Mohammad Ali had entered into possession of the shop sometime in the beginning of 1952, only after the institution of the suit. Similarly D. W. 2 Haji Rasool Bakhsh in his cross-examination admitted that Mohammad Bakbsh was running the factory in one of the shops. Hafiz Ghulam Mohammad was occupying the second shop and the third was in the possession of Mohammad Ali since 2 to 2l years. Before him, according to this witness, this shop was with Ghulam Mohammad. D. W. 7, Elahi Bakhah admitted that two of the shops were in possession of Hafiz Ghulam Mohammad, and Mohammad Bakhsh who was running the factory and that Mohammad Ali is also in possession of a shop for the last 1?? year. The statement of this witness was recorded on the 12th of February, 1953 and according to him Mohammed Ali must have entered into possession of the shop in the year 1952, after the institution of the suit. From the preponderance of this evidence on the record Mohammad Ali has entered into possession of the shop held by him on or after the suit. D. W. 3, Ghulam Murtaza deposed to have a? executed rent deed for the takht posh in favour of Faiz Bakhah (Exh. P. 3) on the 26th of December, 1948. According to the entries. in the register kept by P. W. 3 Muhammad Hussain, Deed-writer Ghulam Murtaza also executed a rent deed fir a portion of one of the shops and the takht-posh in favour of Hussain Bakhsh on 15-12-1950, after the death or Haji Faiz Bakhah. But eventually as is evident from the receipt Exh. P. 5 (already discussed above) he surrendered their possession in favour of the plaintiff on 5-3-52. In view of this subsequent development outside Court it was no longer necessary for him to have sued for its possession. According to Waqf deed Hussain Bakhsh had no right !o the property. His position was no better than that of mere licensee in the property. He was neither vested with actual nor constructive possession of any portion of the property. In spite of this on 18-10-1950 a he purported to give the entire house on lease to Mohammad Ali at a rental of Rs. 20 per month for a period of five years and stated to have received the entire rent of Rs. 1206 for five years in advance from him, vide Exh. P.

9. On 18-4-1951 he extended the term of the lease (vide Exh. D-4) of the house for a period of another eleven months in favour of Moham gad Ali. At the relevant time Hussain Baknsn was himself not in possession of any portion of the house. The widow and the daughter-in-law of the Waqif along with her dependents, as beneficiaries under the Waqf, were actually residing in the upper storey of the house and the three shops were in possession of the other tenants. So that Hussain Bakhsh was not in a position to let out any portion of the house and deliver its possession to Mohammad Ali. As such these leases of the property to him were unreal and no more than mere paper transactions. Afterwards on 28-9-51 Hussain Bakhsh purported to sell his 1/3rd share in the house in favour of Msr. Noor Begum respondent, wife of Mohammad Ali. Not being able to deliver possession of the premises to the vendee. Hussain Bakhsh executed a rent deed for it in her favour on 2-10-St (Exh. D-3) for? a period of 1 l months at the rate of Rs. 4 per month and is stated to have paid the total rent in advance. At the same time on 2-10.51 Mohammad Ali executed an agreement (Exh. P. 10) agreeing to keep the property joint and not press for partition of his 1/3rd share for a period of at least four years. in my opinion neither Hussain Bakhsh, nor Mst. Noor Begum respondent were in possession of any portion of the Waqf property on the date of the suit by the plaintiff on 6-10-1951. At the time the possession of the premises was with the beneficiaries under the Waqf or the tenants under it. Only in the case of D. W. 3 Ghulam Murtaza, he appears to have at one time attorned to Hussain Bakhsh but then he surrendered the possession of the premises in favour of the plaintiff. In this state of affairs it was not necessary for the plaintiff to have sued for possession of the Waqf property and his suit as laid was competent. As a last resort, before us, the learned counsel for respondent No. 1 attempted to argue that respondent No. 1 is a bone fide transferee of the property for value and took shelter behind the principles in section 41 of ,the Transfer of Property Act to ward off this attack against her. In this connection needless to mention here that Hussain Bakhsh was known for his profligate character. la the evidence suggestions were made to show that Mohammad Ali, the husband of respondent No. 1, who negotiated this sale for her, was a friend of Hussain Bakhah. D. W. 2, Haji Rasool Bakhah in his cross-examination stated that he did not remember whether Mohammad Ali was his friend or not. D. W. 3 deposed that he did not know whether Muhammad Ali was his friend. On the other hand the evidence of P. W. I Mohammad Bakhsh goes to show that they were friends. Even otherwise respondent No. 1 does not appear to be a bona fide transferee from Hussain Bakhsh. Prior to the sale deed (Exh. P. 9) on the 18th of October, 1950 Hussain Bakhsh gave the house on lease to Mohammad Ali for a term of 5 years and received the total rent for the whole term amounting to Rs. 1200 in advance. Afterwards on the 18th of April, 1951 the term of the lease was further extended by him for another 11 months ride Exh. D-4. On the 28th of September, 1951 Hussain Bakhsh executed the sale deed for 1/3rd share of the house in favour of respondent No. 1 through Mohammad Ali for Rs. 4,

000. The sale-deed was registered on the 2nd of October, 1951 and according to the endorsement of the Sub-Registrar the sale price of Rs. 4,000 was paid by Mohammad Ali in cash to the vendor. But at the same time on the 2nd of October, 1951 Mohammad Ali executed a deed of trust (Exh. P. 11 acknowledging the receipt of Rs. 1,800 In trust from Hussain Bakhsh. In this connection in his cross-examination W. 8 Mohammad Ali deposed that after the sale he had kept Rs. 1800 in trust for Hussain Bakhsh and had returned the amount to him against receipt. But he admitted that he had not brought the receipt with him in the Court. He then appears to have made an improvement and stated that he returned Rs. 1,800 to him on different dates but that he did not remember the detail. He again said that be had two receipts one for Rs. 650 and other for Rs. 1,150 for the return of the trust money to him. But none was produced in Court. In appears to me, as already discussed above that the two rent-deeds Exh. P. 9 and Exh. D-4 fictitiously executed by Mohammad Ali in favour of Hussain Bakhsh who was not even in a position to transfer possession of any portion of the property to him. Despite the endorsement by the Sub Registrar it is difficult to believe that the entire sale price of Rs 4,000 was paid to Hussain Bakhsh at the tune A( registration of the, sale-deed in favour of respondent. After the sale on 2-10-1951 Mohammad Ali executed the agreement (Exh. P. 10) in which he undertook not to press for the partition of his 1/3rd share in the property for four years. All these facts and circumstances taken together do lend support to the conclusion that the impugned sale in favour of respondent No. 1 was tainted and that she was not a bona fide transferee of the property for value without notice. Section 41 of the Transfer of Property Act lays down that where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith. This section is based on the following observations by the Judicial Committee in Ramcommar v. Macqueen (1872) 11 Beng. L R 46 ; "It is a principle of natural equity which must be universally applicable that, where one man allows another to hold himself? as the owner of an estate and a third person purchases it, for value, from the apparent owner in the belief that he is the? real owner of the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice, of the real title, or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it." In the instant case there is nothing to establish that, either expressly or impliedly, Haji Faia Bakhsb, before his death or the plaintiff and the other beneficiaries under the Waqf, bad at any time held out to the defendant that Hussain Bakhsh was the owner of the property. As already discussed above Hussain Bakhsh was not even in possession of any portion of the property at any time. Moreover the Waqf-deed having been duly registered and a search with a little care by respondent No. 1 to the office of the Sub-Registrar was sufficient to have put her on guard. Indeed respondent No. 1 could have ascertained tire truth about the Waqf nature of this property, with reasonable care and due diligence exercised by her in the behalf. For all these reasons this appeal is bound to succeed. I, therefore. accept this appeal, set aside the judgment and decree of the two appellate Courts and restore that of the trial Court with costs throughout. MUHAMMAD YAQUB ALI, C. J. I agree that the appeal be allowed. DORAB PATEL, J.--I agree. Appeal allowed.