LexBIBI SADDIQA FATIMA versus SAIYED MOHAMMAD MAHMOOD HASAN
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BIBI SADDIQA FATIMA
v.
SAIYED MOHAMMAD MAHMOOD HASAN
May 3, 1978
[H. S. SARKARIA, N. L. UNTWALIA AND P. S. KAH.ASAM, JJ.]
Waqf-alal-aulad-1\Tature of, under Shia law-Any property acquired by a
Mutalvalli either in his na1ne or bena1nidar will be a waqf property-Mutawulli's
duty and powers of regarding waqf property.
Pkadings must be construed on the basis of the stand taken ar the trial and
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the is~ue.; on which the parties adduced evidence and argued.
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One Smt. Sughra Begum, a Shia Muslitn lady \vas possessed of vast Zamin-
dari and other properties. On October 6, 1928, she created a \Vaqf of the entire
properties dividing them in three qurras, Raja Haji Saiyed Mohammad Mah-
mood Hasan was appointed by the \Vaqifa as the
~1utawalli of qurra No. 1.
After the death of his first wife Smt. Akbari Begum. the Raja took the plaintiff
appellant as his second wife in the year 19~3. On January 22, 1935, a perma~
nent lease was executed on behalf of one Saiyad Anwarul Rahman. in respect
of the disputed land in the name of the plaintiff. The rent fixed was Rs. 80 /-
per year.
Between the years 1937 and 1939 a bungalow was constructed on
the said land which was named as "Mahmood l\fanzil''. The Raja died in
September, 1939.
The plaintiff appellant filed a suit No. 86 of 1952 in the
Court of the Civil Judge, Aligarh in which the original respondent was the
sole defendant.
The plaintiff's case was that the disputed property belonged
to her and that the Uefendant was inducted as a tenant of the ·k_othi' on and
from 1-3-1947 on a rental of Rs. 60/- p.m., that he paid rent upto May 1950,
but did not pay any rent thereafter, that she served a notice on him to pay the
arrears of rent and deliver vacant possession of the Kothi.
The defendant
respondent pleaded
inter alia
that Raja Sahib. the first Muta\valli of qur1a
No. 1 had acquired the lease of the land and constructed the Kothi with the
waqf fund as Mutawalli of the waqf and therefore it was a \vaqf property,
tha-t after the death of the Raja, he became the Mutawalli of qurra No.
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including the Kothi in question and that he occupied the Kathi as a Mutawalli
and not as a tenant.
The Trial Court accepted the case of the defendant, re-
jected that of the plaintiff and dismissed her suit. Her appeal before the High
Court was dismissed.
Dismissing the appeal by special leave, the Court
HELD : 1. According to Shia law, the waqf is irrevocable after possession is
given to the beneficiaries or the Mutawalli.
The settler divests himself of the
ownership of the property and of everything in the nature of usufruct from, !.he--.1.
n1oment
the waqf is created. In pure
metaphorical sense, ·the
expressioll }
"ownership of God" is used but unlike Hindu law, since conception of a per-
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sonal God is not recognised there is no ownership of God or no property
belongs to God in the jural sense, although "the ownership of the property
becomes reverted in Gcxl as he is orginally the owner of all things".
The
property is cons
1idered as transferred to the beneficiaries or the !\.Iutawalli for
the object of the waqf. Strictly speaking, the ownership of the waqf prope.rty
has no jural conception with any exactitude. The corpus is tied down and is
made inalienable.
Only the usufract and the income from the corpus or the
waqf property is available for carrying out the objects of the \Vaqf.
Creation
of waqf for the purpose of maintenance of the waqif's family and their des-
cendants is also a charitable purpose. [894 G-H, 895 A-B]
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2. A Mutawalli is like a manager rather than a trustee.
The Mutawalli,
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so far as the waqf property is concerned, has to see that the beneficiaries got
the advantage of usufruct. The Mutawalli may do all acts reasonable and pro-
per for the protection of the waqf property, and for the administration of
the waqf.
[895 E, 896 DJ
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FATIMA v. HASAN
887
2{a) A Mutawalli ofi a waqf although not a trustee in the tn1e sen.c;e of the
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te.rm is still bound by the various obligations of a trustee. He like a trus~ce
or a Person standing in a fiduciary capacity cannot advance bis own interests
or the interests of one class of relations by virtue of the position held by him.
The use of the funds of the waqf for acquisition of a property by a Mutawalli
in the name of his wife would amount to a breach of trust and tExcerpt shown. Read the full judgment & AI analysis in Lexace.