Supreme Court of India
SMT. ZUBEDA BEGUM ETC.versusSYED SHAH KHURSHEED AHMAD HASHMI AND ORS. ETC.
- Citation
- 1996 INSC 1411
- Decided
- 28 November 1996
- Disposal
- Dismissed
Holding
The wakfnama is a valid waqf deed, not vitiated by undue influence or lack of capacity, and only clauses 6, 7 and 11 are invalid.
Summary
Nawab Sir Mohammad Yusuf executed a wakfnama on 5 April 1956, dedicating his properties as a waqf and appointing himself as Mutawalli, with his nephew Syed Shah Hashmi as successor. After his death, his widow Smt. Zubeda Begum sued for cancellation of the wakfnama and possession of the properties, claiming a one‑fourth share. The trial court partially decreed the suit, but the Allahabad High Court dismissed it. On appeal, the Supreme Court examined whether the wakfnama was void for undue influence, whether the Nawab had the requisite mental capacity, and whether the deed complied with the Waqf Act, 1913. The Court held that the Nawab was of sound mind, that no evidence proved undue influence, and that the wakfnama was valid under Muslim law, except for clauses 6, 7 and 11 which were struck down. Consequently, the appeal was dismissed.
Issues considered
- Whether the wakfnama executed by Nawab Sir Mohammad Yusuf is void on the ground of undue influence.
- Whether the Nawab possessed the mental capacity to validly execute the wakfnama.
- Whether the wakfnama complies with the provisions of the Waqf Act, 1913 and Muslim personal law.
- Whether specific clauses of the wakfnama (clauses 6, 7 and 11) are legally valid.
Legislation cited
Subjects
waqfwakfnamaundue influencemental capacityMuslim personal lawWaqf Actmutawalliproperty rightscancellation suit
Judgment
A SMT. ZUBEDA BEGUM ETC.
v.
SYED SHAH KHURSHEED AHMAD HASHMI AND ORS. ETC.
NOVEMBER 28, 1996
B [K. RAMASWAMY AND G.T. NANAVAT!, JJ.]
Muslim Law-Wakf-Meaning, Object and validity of-Wakfnama ex-
ecuted by a follower of Hanft Sunnet-ul-Jammat of Islam-E.xecutant giving
up proplietory interest in prope1ties and appointing himself as Mutawal/i of
C the wakf-Vesting ofproperties in God-l'rovision that after death of executant
his nephew would be mutawa//i of Estate-Wakfnama duly registered with
Sub- Registral'-Death of executant-Wife of executant filing a suit for cancel-
lation. of Wakfnama and for possession of properties--Suit partly decreed by
Tiial Court-{)n appeal suit dismissed by High Court-Appeal before Supreme
Court-Finding that the executant of wakfnama was in a fit mental condition
D to execute the Wakfnama held col7ect-Contention that the nephew of ex-
ecutant had played greater role in having the wakfnama executed for his benefit
by bliiJging about undue influence on the executant rejected-Held, in the
circumstances of the case the wakf was duly created in accordance with
law-Held, the wakf was not vitiated by error of law warranting inter-
E f erenc,,_.sut clauses 6, 7 and II held not valid.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 567 of
1981 Etc.
From the Judgment and Order dated 14.3.80 of the Allahabad High
F Court in F.A. No. 399 of 1962.
S.K. Dholakia, T. Khan, Anil K. Chopra, Anis Suhrawardy, Ejaz
Maqbool, Dr. N.A. Siddiqui, Mohan Pandey and S.K. Jain for the appear-
ing parties.
G The following Order of the Court was delivered:
Leave granted in SLP (C) No. 1638/81.
This appeal by special leave arises from the judgment of the Division
Bench of the Allahabad High Court, made on March 14, 1980 in First
H Appeal No. 399/62 and 28/64. The Nawab Sir Mohammad Yusuf of Jaun-
348
ZUBEDABEGUM v. SYED SHAH KHURSHEED AHMED HASHMI 349
pur had executed_Wakfnama on April 5, 1956 and he died on May 3, 1956. A
The ~ppellant-Zubeda Begum, his widow filed the suit for cancellation of
the Wakf-nama and for possession of the properties with a declaration that
she is entitled to the compensation to the extent of l/4th share of the
properties given in the list. The trial Court partly decreed the suit. On
appeal, the High Court dismissed the suit. Thus, this appeal by special. B
leave.
The main controversy is with regard to the validity of the W akf- nama
created by Naw_ab Sir Mohd. Yusuf which re~ds ·as under :
"!, Nawab Mohammad Yusuf, son of Nawab Abdul Majid Saheb, C
,.,resident of Mohalla Alam, Post Office Sadar Jaunpur City.
Whereas I am a follower of Hanfi Sunnet Ul Jammal of Islam
and whereas it is obligatory on every person that he should make
arrangement by w_hich charity and alms may continue to be given
and dependent may also be looked after. The properties menti1med D
are worth Rs. 2,44,679 which are my exclusive ownership the detail
of which has been given in Schedule As, Ba, Da and Sa.
- The executant has no issue either male or female. I have got a
nephew {My sister's son) Syed Shah Mohdammad Hashmi, BA.,
LL.B, Vakil, Allahabad who is the son of Moulvi Nazir Shah
Hashmi. He is very promising, able and virtuous by nature. I have
brought him up as if he was my own son.
E
The cherished desire of me is that {1) Syed Shah Mohammad
Hashmi aforesaid as well as (2) descendants of my wife and (3) F
other poor penniless people should be benefited by this Waqf:,
Therefore, after considering pros and cons of this document
without any coercion or undue influence from anyone in a state of
. my full senses and wisdom and with my own free will, I hereby
create a waqf of the properties in pursuance of Act 6 of 1913. I
have given up my proprietary possession over the properties and G
have re-taken them as the Mutawalli of the Waqf from this day
onwards. I have no proprietary interest left in the properties and
every b.it of the property has become vested in God for the benefit
of the persons mentioned above. These properties have become
Waqf property for all times to come. This document will be binding H
350 SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R.
A on everybody and the name of the property hereafter will be called
"Waqf-e-Yusufia."
And all the proceedings agamst the Waqf estate will be taken
under the name of "Waqf-e-Yusufia". I settle the line of Tauliat as
follows:
B
(1) That upto my lifetime, I, the executant will be the Mutawalli
of the Waqf properties and perform and take all proceedings
vis-a-vis the properties in the capacity of my becoming the Mut-
walli. No one will have the right to question my doings. The
c executant will have the right on the Waqf properties, whether they
are planted trees, groves, groves' cultivation and the groves of the
fruit-bearing mango trees. If and when it is necessary for the
preservation of the Waqf properties, I will have the right for sale,
lease or mortgage for the benefit of the Waqf. I will also have a
right on the abolition of the Zamindari to get the compensation as
D Mutawalli of the Waqf. These rights will continue till I am alive
and when I am no more, the succeeding Mutwalli will have the
same rights in pursuance of this Waqf Deed.
E
(2) That after the lifetime of the executant Syed Shah Ahmad
Hashmi would be the Mutwalli of this estate. And after Syed Shah
Ahmed Hashmi, his eldest son and after him the eldest son of his
eldest son, generation after generation will continue in perpetuity
-
as Mutwalli of the Waqf estate.
F (3) if per chance the eldest son of Syed Shah Ahmed Hashmi does
not remain alive and died without any issue; in that contingency,
the 'J'.auliat will go to the branch of the second son of Syed Shah
Ahmed Hashmi and the Mutwalliship will continue till then in
perpetuity.
G (4) That it is imperative that the Mutwalli of this Waqf will only"
be such a person who is virtuous, honest, able and capable to
manage the properties. He should also follow Hanfi Tenets of the
Mohammedan Law. If the main line of Syed Shah Ahmed Hashmi ·
·becomes extinct, then the Mutwalliship will go to the female line
H of Syed Shah Ahmed Hashmi.
ZUBEDABEGUMv. SYEDSHAHKHURSHEEDAHMEDHASHMI 351
(6) In case, the line of Moulvi Haider Hussain who is the grand- A
father of the executant also becomes extinct and no one of his
descedants is alive, then all the Muslim residents of Jaunpur will
-(
be entitled to elect a muslim who is honest, virtuous and belongs
to the Sunni Hanfi sect to get appointed Mutwalli through court,
such a person will have to follow the directions given in this deed. B
(7) That every person who is a Mutwalli will be entitled to
nominate his successor.
(8) The executant will be utilising usufruct and income of the
property till he is alive for self and for the needs of my wife Smt. C
Zubeda Khatun as well as for the benefit of Syed Shah Ahmed
Hashmi.
(9) That on the death of the executant, Government demands,
Revenue, taxes, repair of houses and other necessary expenses
including litigation expenses, etc., a sum of Rs. 200 will be paid to D
my wife Zubeda Khatun till her lifetime and the remaining sum
will be distributed among the legal heirs of Shah Ahmed Hashmi.
- (10) That the amount which i~ payable to my wife on her death
will be paid to the heirs of Syed Shah Ahmed Hashmi.
(11) That if all the descendants of Syed Shah Ahmed Hashmi
become extinct, then the income from the Waqf properties will be
E
distributed to the descendant of my grand-father Moulvi Haider
Hussain proportionately according to the Hanfi School.
(12) When all the class of persons mentioned above are no more,
F
the entire income will be given to the poor beggars and destitute
Muslims. It will also be spent over Qurankhani and virtuous acts
for the benefit of the Muslims at large.
I have, therefore, this day executed waqfnama so that it may G
be referred to .if and when an occasion arises.
5th April, 1956."
Shri Dholakia, learned senior counsel appearing for the appellant,
contends that the reading of the wakfnama does indicate that it ·is not a H
352 SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R.
A wakfnama but it was executed to benefit Syed Shah Ahinad Hashmi (for
short, Hashmi) who had played greater role in having the wakfnama
executed for his benefit by bringing about undue influence on the Nawab.
Therefore, the wakfnama is void under law by reason of Section 16 cifthe •
Contract Act. He read to us the evidence discussed by the trial Court
B regarding the mental and physical condition of Nawab Mohd. Yusuf and
contends that the High Court has not considered this evidence, in par-
. ticular medical evidence of PW-11 and the doctor examined on behalf of
the respondent. Therefore, it amounts to excluding the relevant evidence
which was take!). inta consideration by the trial Court vitiating the finding
recorded by the appellate Court. We find no force in the contention. It is
C seen that the appellate Court has considered the evidence elaborately and
came to the conclusion that the Nawab Mohd. Yusuf was in a mentally fit
condition to execute the wakfnama. He was a Barister at Law and an
M.L.A. The finding recorded by the High Court is as follows :
"In the instant case a perusal of paragraph 9 along with various
D other allegations made in the plaint with regard to the physical
and mental condition of the Nawab shows that according to the
plaintiff, at the time when the waqf deed is said to have been
E
executed, no relation, other than Khurshed Ahmad Hashmi, was ,
present near the Nawab. The nature of nndue influence said to .
have been disclosed in the plaint was that Syed Khurshed Ahmad
Hashmi stood in fiduciary relation&hip and was in a position to
-
dominate the will of the Nawab whose mental capacity had been
impaired. He ntilised that position in obtaining the waqf deed and
thus obtained for himself the entire benefit in respect of the
property belonging to the Nawab. We have, therefore, to see if
F there is any reliable evidence on the record to establish the fol-
lowing:
1. That the nawab was mentally weak and his mental capacity
had been temporarily or permanently effected by reason of
G age illness or mental or bodily distress.
2. That Syed Khurshed Ahmad Hashmi stood in fiduCiary rela-
tion with the Nawab.
3. That Khurshed Ahmad Hashmi used his position or relation-
H ship in obtID.Qing the waqf deed.
ZUBEDA BEGUM v. SYED SHAH KHURSHEED AHMED HASHMI 353·
So, far as the first question is concerned, we have, while consider- A
ing the question whether the waqf deed in question was executed
by the Nawab, pointed out that even though the evidence discloses
I
. that at the time of education of the waqf deed the Nawab was in
bad health, there was nothing on the record to show that his mental
condition had been impaired to the extent that he was .not in a
B
position to understand the consequences of his action. Apart from
urging that due to protracted illness and advanced age, the mental
capacity of the nawab must have been impaired, learned counsel
for the plaintiff could not bring to our notice, any circumstances
appearing in the evidence, which could justify the inference that
the mental 9apacity·of the nawab had been impaired. The inference c
that Khurshed Afunad Hashmi was in a position to dominate the
will of the nawab is also sought to be drawn merely from the fact
that at the time of the execution of the waqf deed the Nawab was
in weak health and was totally blind. In our opinion, thi~ fact by
itself cannot lead to an inference that Khurshed Ahmad Hashmi
D
was in a position to dominate the will of the Nawab. The eviden_ce
discloses that the Nawab had been practically blind for about 3 .
years and that mostly his family members were living av.:ay from
- him. It is not suggested that during that period the Nawab had
been dominated by any, one and that he had not been acting on·
his own free will. The evidence produced on behalf~ Syed E
Khurshed Ahmed Hashmi clearly shows that due to certain reasons
even before Khurshet Ahmad Hashini came to live with 'the Nawab
at Jaunpur, the Nawab wanted him to come to Jaunpur and to Jook
after his estate and that h~ wanted to~ettle his property for his
benefit. Accordingly merely because the Nawab was in a weak state F
of health and from an10ngst hls .relatives ~nly Khurshed Ahmad
Hashmi happened to beht Jaunpur at the time of execution of the
waqf deed, it does not mean that the Nawab executed the waqf
- deed because of any undue influence exercised by Khurshet
Ahmad Hashmi.
G
The waqf deed shows that the Nawab had taken care to see that
his wife Smt. Zubeda Begum was throughout her life to get, a sum
of R~. 200 p.m. for her maintenance, Accordingly, it cannot be said
that the Nawab did not provide for his wife. Learned counsel for
Smt. Zubeda Begum argued that considering the status of Nawab. H
354 SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.
A Smt. Zubeda Begum could not possibly make her both ends meet
in a petty sum of Rs. 200 p.m. and in substance no provision had
been made in the waqf deed for her maintenance.
In the result, we fir.d that there is nothing on record to indicate
that the waqf deed in question had been obtained by Syed Khurshet
Ahmad Hashmi by exercising under influence on the Nawab and
that the same is not invalid on that account. The finding recorded
by the trial Court to the contrary is accordingly set aside."
It is seen that wakfnama as executed and duly registered by the
C Sub-Registrar who was also examined in this case. A gruelling cross-ex-
amination has been done of the Sub-Registrar and the High Court ac-
cepted his evidence. It is true that the trial Court has given diverse reason
for disbelieving the evidence of the respondent and accepted the case of
the appellant. The High Court also being a final court of fact had ap-
D preciated the evidence and came to the conclusion that the Nawab Mohd.
Yusuf was in fit mental condition though he was weak to execute the
wakfnama.
It is then contended that wakfnama was not in accordance with law
and, therefore, it is not valid in law. We find no force in the contention.
E Mulla's Principles of Mohomedan Law, (18th Edn.) by Justice M.
Hidayatullah, Former Chief Justice of this Court, mentions the definition
of Wakf in paragraph 173. Wakf means "The permanent dedication by a
person professing the Mussalman faith of any property for any purpose
recognised by the Mussalman law as religious, pious or charitable". The
F dedication must be permanent and the subject of wakf may be any proper-
ty. A valid wakf may, therefore, be made not only of immovable property,
but also of movable, such as shares in joint stock companies, Government
promissory notes, and even money. In paragraph 176, it is stated that the
wakf must be owner on the date of creation. It is not in dispute that the
Nawab Mohd. Yusuf was the owner of the property. The object of the wakf
G has been stated in paragraph 178, namely, as religious, pious or charitable.
A wakf may also be created in favour of the settler's family, children and
descendants. Paragraph 202 envisages that under the Mohomedan law, the
moment of wakf is created, all rights of property pass out of the wakif and
vest in the Almighty. The Mutawalli has no right in the property belonging
H to the wakf; the property is not vested in him, and he is not a trustee in
ZUBEDABEGUM v. SYED SHAH KHURSHEED AHMED HASHMI 355
the technical sense. He is merely a superintendent or manager. Paragraph A
203 states that subject to the provisions of sub-section {2), the founder of
a wakf may appoint himself, or his children and descendants or any other
person, even a female or a non-Mahomedan to be Mutawalli of a wakf
property. A reading of wakf deed clearly indicates that he created a wakf.
He is a follower of Hanif Sunnet Ul Jammal of Islam. He is the owner of B
the properties mentioned in the wakfnama. He named the wakf as Wakf-
e-Yusufia. He also stated that the ~roperty vested in God for the benefit
of the persons mentioned therein. He also stated thus : "I will have the right
to sell, lease or mortgage for the benefit of the W akf, I will also have a
right on the abolition of the Zamindari to get the compensation as
Mutawalli of the wakf'. Thus, it is clear that he executed the wakf for c
religious benefit and thereafter the property vested in the God and he
assumed ·his character only as a Mutawalli. He nominated the first respon-
dent, as his successor of Mutawalli etc. Thus, it could be seen that the wakf
created by Nawab Mohd. Yusuf is a valid wakf duly created in accordaltce
with law. Only clauses 6, 7 and 11 are not valid in law. They accordingly" D
stand excluded. As regards mental and physical Condition of the Nawab, it
is a question fact. The High Court equally has gone into the entire evidence
and recorded the finding, as extracted earlier. Under these circumstances,
the wakf is not vitiated by any error of law warranting interference.
.
IP-'·
The appeal is accordingly dismissed. Consequently, the other appeal, E
viz., CA @ S~P (C) No. 1638/81 filed by the respondent also stands
dismissed. No costs. All the interlocutory applications are dismissed.
T.N.A. Appeal dismissed.
r
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