October 4, 2022

Is a wakf created for the lifetime of descendants valid?

A wakf in Islam is valid if it is dedicated for charitable and religious purpose. A wakf may be created in way that during the life time of descendants, they get benefit and after them, property go for charitable purpose. However, if the intention of the parties, is to make wakf just for their family and after extinction of family line, to poor or widows, then this type of wakf is not allowed in muslim law.

Thus, the primary and substantial objects must be, solely and exclusively for religious or charitable purposes.

This issue was discussed in the case of ‘Abdul Fata Mahomed Ishak And Ors. vs Rasamaya Dhur Chowdhuri (1891) ILR 18 Cal 399’.

Facts of the Case

The question which came to decide in the appeal was,

‘whether a certain deed, dated the 21st December 1868, and purporting to be a wakfnamah, did create a valid wakf according to Mahomedan law.’

  • That deed was executed by the appellants’ fathers in respect of all their immoveable property. They appointed themselves mutwalis, and for some years described themselves as such in collection papers and other documents connected with the management of property.
  • But in 1874. they declared that they had revoked the wakf by reason of their necessities, and thenceforth they dealt with the property as if no wakf existed.
  • The defendant/respondent No. 1, who had become much involved in debt, mortgaged and alienated numerous parcels of the property.
  • This suit was instituted in 1888 by his sons as beneficiaries under the deed of wakf to have it declared that all the property was wakf, to recover from the transferees all the property alienated by their father, and to have him removed from the post of mutwali.

The Wording of the Wakf

It is necessary next to state what the declared objects of the instrument were. In its opening sentences it states as follows:

“For perpetuating the names of our fathers and forefathers and for protecting our properties, we…of our own free will and accord and without reluctance or compulsion make perpetual wakf of all our shares and rights in the immoveable properties pergunnahs, zemindaries, taluks, that are in our possession and enjoyment for the benefit of our children and grand-children and the members of our family from generation to generation and upon failure of them for the benefit of the poor and beggars and widows and orphans”.

And in a subsequent part of the deed it is stated that

“the principal object of this wakf is that there be no loss to the properties; that the name and prestige of the family be maintained; and that the property be appropriated towards the maintenance of the name of the family and the support of the persons for whose benefit the wakf is made; and for acts of religion“, etc.

From the passages above quoted it was quite clear that the purposes for which this wakf was made were, so to speak, secular rather than religious; and that it was intended to operate as a perpetual tying up of the properties for the sole benefit of the appropriators and their descendants for so long as any of them should exist in the world. The only definite religious or charitable object indicated is the support of the poor, the widows and orphans; and this object is contingent upon the total extinction of the appropriators’ family in some future age.

The court was to decide that being the character of the wakf, whether it was one that is valid and irrevocable according to Mahomedan law?

Court’s Answer

The Advocate-General relied upon the case of Doe d. Jan Bibee v. Abdullah Barber 1 Fulton 345 a case tried in the Supreme Court of Calcutta before Ryan, C.J., and Grant, J. H.

But the court was of the opinion that the judgment of Ryan, C.J., based as it was upon the opinions of the Moulvies to whom the questions of Mahomedan law were referred, was certainly entitled to very great weight; but all that judgment decides in respect of the validity of a wakf is that an endowment to charitable uses is valid, though qualified by a reservation of the rents and profits to the donor himself during his life; and that the donor may appoint himself mutwali and need not deliver possession to another.

But, it did not declare that a wakf which on the face of it is not an endowment to religious or charitable uses is valid.

Advocate general referred another cases of Fatma Bibi v. The Advocate-General of Bombay I.L.R. 6 Bom. 42 and Amrutlal Kalidas v. Shaik Hussein I.L.R. 11 Bom. 492 which laid down that a perpetuity in favour of the donor and his descendants is a valid wakf, if an ultimate dedication be made in favour of some religious or charitable object upon the occurrence of a contingency, however remote and improbable.

But, the court did not accept these rulings too. However, the court observed that Baillie no doubt as well as the learned Tagore Law Lecturer of 1884 (syed ameer ali) seemed to favour this interpretation of the law; but the Hedaya, as translated by Hamilton, and most of the cases laid before the court, established the fact that wakf must be in favour of a religious or charitable purpose, although there may be a temporary intermediate application of the whole or part of the benefits to the appropriator’s family.

All the cases that expressly sanction this latter arrangement were cases in which at least the ostensible and principal object of the wakf was religious or charitable. And that the dedication must not depend upon an uncertain contingency, such as the possible extinction of the family.

The court referred the authority of the Privy Council in the case of Mahomed Ashanulla Chowdry v. Amirchand Kundu L.R. 17 I.A. 28; I.L.R. 17 Cal. 498 cited by Mr. Evans for refusing to recognize as a valid deed of wakf an instrument which uses a particular form of words as a veil to cover arrangements for the aggrandisement of the family and to make their property inalienable.

Decision of the court

The court finally decided that,

“deed before us, and notwithstanding the fact that for a few years after its execution the owners of the property dealt with it nominally as mutwalis, it is certain that they had not really intended to give up their proprietary rights in it. And before very long they abandoned even the semblance of mere trusteeship.

We cannot believe that the authors of Mahomedan law intended that, under cover of a pretended dedication to Almighty God, owners of property should be enabled to secure it for their own use, protect it for ever from their own and their descendants’ creditors, and repudiate alienations in respect of which they have received full consideration.

In our opinion, then, the deed before us cannot be sustained as a valid wakfnamah, and consequently we decree this appeal, reversing the decree of the Court below, and dismissing the plaintiffs’ suit with costs of the other Courts.”

Reference

Abul Fata Mahomed Ishak And Ors. vs Rasamaya Dhur Chowdhuri: (1891) ILR 18 Cal 399