THAKUR MOHD. ISMAIL versus THAKUR SABIR ALI

Citation: [1963] 1 S.C.R. 20 · Decided: 26-03-1962 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Dismissed

Judgment (excerpt)

1962 
St•i. of Utt,,,. 
Pradesh 
•• 
Dr. Viio.1 A.none/ 
Ma11oraj 
SubboRaoJ. 
Muriholk.,J. 
1962 
M01e1a IO. 
20 
SUPREME COURT REPORTs (1963] 
cedure at this very late stage, in view of the fore-
going reasons. 
In the result, we hold that the order of tho 
High Court is correct. Tho appeal fails and is diH-
missed with costs. 
MunHOLKAii, J.-I agree with my learned 
brother that the appeal should be dismissed for the 
reasons stated in his judgment. I, however, express 
no opinion on the quetion regarding the ma.in ta.in-
ability of the appeal. under the Letters Pa.tent 
against the decision of a single Judge in a case of 
this kind. 
Appeal diltm~. 
THAKUR MOHD. ISMAIL 
v. 
THAKUR SABIR ALI 
(P. B. GAJENDR.AG.ADKAR, A. K. SARKAR and 
K. N. w 
.ANOHOO, J J.) 
Wakf-alal·aulad Ezecuted by Oud.h talukdar--1/ offends rule 
against porpituity-Oudh JC1tate• Act. 1869 (1of1869), as. 11, 
12, 18-Mussalman wakf Validating Act, 1913 (6 of 1913), 
••. a, 4. 
A Hanafi Mussalman, owner of a talukdari estate 
governed by the Oudh Estate, 1869, executed in 1925 a deed 
of walrf-alal-aulad, for the benefit of himself, his family and 
descendants generation after generation. He was to be the 
first mutwalli and thereafter his second son and after him his 
·other sons and descendants according to the· rule of prim0geni-
tu.re. 
Certain amounts were also to be paid to charities and 
' 
for the maintenance of members of his family. The remainder 
was to go to the mutwalli. After his death the suit, out of 
which the present appeal arises, was instituted by the eldest 
son of his predeceased <'ldcst son claiming succession to the 
estate according to male lineal primogeniture under the Act. 
His case mainly was that the wakf deed was invalid in view of 
ss. 11 and 12 of the Act. The trial court found that the deed 
) 
' 
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l S.C.R. 
SUPREME COURT 'P.'RPORTS 
21 
was genuine and valid and dismissed the suit. On appeal 
the High Court, while upholding the finding of the trial court 
that the wakf deed was a genuine document, dismissed the 
suit on the ground that the deed contravened s, 12 of the 
Act. 
Section 11 of the Act provided that the estate conferred 
on a talukdar was an absolute estate he having the right to 
transfer or bequeath it in any manner he liked. Section 18 
dealt with gifts to religious and charitable uses. 
Section 12 
0f the Act provided as foliows:-
"No transfer or bequest under this Act shall be valid 
where by the vesting of tbe thing transferred or bequeathed. 
may be delayed beyond the lifetime of one or, more persons, 
living at the decease of the transferee or testator and the 
minority of some person ·who shall be in existence at the 
expiration of that period, and to whom, if he attains full age, 
the thing transferred or bequeathed is to belong." 
Held, (Gajendragadkar and Wanchoo, JJ.), the Oudh 
Estates Act, 1869, was a complete Code by itself so far as the 
holders of talukdari estates were concerned and the rights of 
such holders must be determined and circumscribed by the 
provisions of the Act. 
Although a wakf-alal-aulad was a gift in favour of God, 
it could be valid only if it came within s. 11 of the Act. 
Section 18 of the Act merely provided the procedure for 
making gifts to charitable and religious uses and the power to 
make a gift was to be found in s. 11. 
In any case, such a 
gift was subject to the provision of s. 12 of the Act. 
The words 'religious or charitable uses' in s. 18 of the 
Act which applied to talukdars of all religious, properly 
construed, could not mean that provision for one's children 
would be provision for religious and charitable use.<. 
A wakf, 
such as the one in the present case, in which the beneficiaries 
mainly were the descendends of the wakf wonld not, therefore, 
fall withins. 18 of the Act. Treated as a gift to God, He would 
have no beneficial ownership in it for generations to come. 
Sections 3 and 4 of the wakf Validating Act 1913, could not 
alter the position. 
' 
Rikani Mis v. Shukla! Poddar, (!R93]T. L. R. 20 Cal.116, 
considered. 
Abdul Ji'ata Mohamed lslia.T' v. 7111.ssomoy nhnr Ohondhr.y, 
(IR94) L. R. 22 T. A. 76, referred to. 
The word 'vestin.g' in s. 12 of the )\ct mean absolute 
vestinQ', meaninQ.' there:bv that the person in whom the propertv 
vested could deal with it and its usufruct as he liked. 
Eve1; 
\hqugb, therefore, the property, in the inst.~nt cas '• might ves\ 
I9dt 
Thakur Mohd. 
Ismail 
v. 
Thak1l1 S,,bir Ali 
1961 
Th11ku

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