JUDGMENT Niamatullah, J.
1. I regret I am unable to agree with my learned colleague on one of the questions, arising in this appeal, which goes to the very root of the matter in controversy. I am of opinion that the deed of waqf, dated 23rd June 1913, executed by Mt. Rahim Bibi does not affect the one-third share of villages Bhitaura Kalan and Amkhera, inherited by her on the death of her son, Manzur Ahmad who was admittedly the owner of the aforesaid villages. My learned colleague has so lucidly stated all the facts from which the proposition, on which we differ, emerges, that it would be needless repetition to recapitulate them in detail except in so far as is necessary to explain my views on that question. It is common ground that Manzur Ahmed executed a sale-deed, on 29th August 1912, only three days before his death, conveying the two villages to his mother, Mt. Rahim Bibi, in lieu of Rs. 2,00,000 of which a sum of Rs. 10,000 was paid at the time of the registration of the deed and the remaining sum of Rs. 1,90,000 was left with the vendor who was authorized to spend it on such charities as she determined. Manzur Ahmed left three other heirs, besides his mother Mt. Rahim Bibi. These were his uncle Fazal Ahmad the plaintiff-appellant and two widows Mt. Kamrunnisa and Mt. Jilani Bibi, the last named being the daughter of Fazal Ahmad.
2. On 23rd June 1913, Mt. Rahim Bibi executed the deed of waqf by which she dedicated the two villages, professing to do so because she had been directed in the sale-deed to spend Rs. 1,90,000 on charities and the waqf of the two entire villages, instead of cash which would be diminished by user, was considered more desirable. The lady constituted herself mutawalli for her life and nominated Fazal Ahmad, the plaintiff-appellant, and several others as her successors to the office of the mutawalli. Mutation of names followed the execution of the deed of waqf but later, the heirs of Manzur Ahmad other than Mt. Rahim Bibi, successfully asserted their right of inheritance and obtained mutation of names to the extent of their shares. They repudiated the deed of sale dated, 29th August 1912 executed by Manzur Ahmad as no more than a gift, in disguise, to one of the heirs and therefore void under Mahomedan Law. Two suits were instituted in the Court of the Subordinate Judge of Pilibhit (1) by Mt. Rahim Bibi, for establishment of her right under the sale-deed, insisting on its validity and (2) by the other heirs headed by Fazal Ahmad the plaintiff-appellant for recovery of certain moveables left by Manzur Ahmad. Ultimately it was decided on 5th December 1917(p. 151) by a Bench of this Court that the so-called sale was a somewhat ingenious device to give the transaction the appearance of a sale so as to evade the Mahomedan law which forbade a Mussalman in his death illness to make a gift to one heir at the expense of the others.
3. The validity of the waqf made by Mt. Rahim Bibi was not directly in issue and apart from an obiter dictum nothing definite was ruled with regard to it. Subsequently there was an arbitration to which all the members of the family were parties in their personal capacity. The award declared that the waqf was invalid. I agree with my learned colleague that the question was not referred to the arbitrator and his decision thereon is not binding even if we ignore the fact that the Court refused to pass a decree in terms of it. In the meantime Mt. Rahim Bibi executed a sale-deed dated 20th June 1918 in favour of defendant 1 and Raja Lalta Prasad predecessor-in-title of the defendant-respondents 2 to 6. It recites that by the decree of this Court the two villages had been 'ultimately' held to be part of the assets left by Manzur Ahmad and that her own share thereon, as his heir was one-third which she conveyed to the vendee in lieu of Rs. 80,000. Mt. Rahim Bibi died on 15th August 1921. The present suit was brought by Fazal Ahmad on 9th September 1924 in his capacity as mutawalli for establishment of the waqf as regards the one-third share to which Mt. Rahim Bibi was entitled at the date of waqf as heir of Manzur Ahmad, under the Mahomedan law. I am in entire agreement with my learned colleague in the view that the waqf was validly created in all other respects and all legal formalities including such delivery of possession as was possible under the circumstances, were observed. The waqf was fully intended by the lady to be operative in its inception. There is no satisfactory evidence to support the plea that it was a fictitious deed brought into existence to defeat the creditors of Mt. Rahim Bibi. I also endorse the view that Fazal Ahmad is not estopped from setting up the waqf as mutawalli, though in his capacity as Manzur Ahmad's heir he might have repudiated it in course of the litigation which ensued after his death.
4. But I think the waqf, though otherwise valid, cannot take effect as the property which formed its subject-matter, viz. rights acquired by Mt. Rahim Bibi under the sale-deed dated 29th August 1912, has been found to be non-existent. Waqf like transfers can operate only on the property made the subject thereof, "waqf" according to its definition given in the Mussalman Waqf Validating Act:
means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable.
5. The expression "any property" does not mean the physical object to which ownership attaches, but means rights which a person possesses in such object. When we speak of something as the "property" of a person we mean by that term the bundle of rights which he has in it. The incidents of such property depend on the nature and extent of his rights. Mt. Rahim Bibi's right to the two villages, acquired under the sale-deed, assuming it to be valid, is a property not identical with that depending on the right she inherited from her son, Manzur Ahmad. The one may he described as the vendee's estate and the other as that of an heir. They are not subject to the same incidents. For instance, the former is subject to unpaid vendor's lien while the latter is not. Again the latter is liable for the debts of the deceased while the former is not except those charged on it when the sale-deed was executed. The right on which one rests may be illusory as the vendee's estate in this case while the right on which the other is based is substantial. If the sale had been made in favour of a person not his heir there could be no difficulty in separate treatment of the right or property of the vendee and of that of the heir in case of conflict between them. I feel no difficulty in conceiving the possibility of Mt. Rahim Bibi making a waqf of whatever she acquired under the sale-deed alone without reference to any other right which might be found to have been vested in her. There can be no doubt that, if she had expressly stated in the deed of waqf that the waqf would operate only on such rights as she acquired under the deed of sale from Manzur Ahmad, her right as an heir, of failure of the sale, would no more be affected than if the sale had been in favour of a third person who subsequently made a waqf of what, he believed, belonged to him. In short she had two capacities and had different rights or properties vested in her in each capacity. It is equally possible that a person may not act in any particular capacity and may profess to deal with all right whatever their sources. Of course, if there are no indications to the contrary in the deed the entire right of the transferrer will be conveyed thereby but the deed properly construed may lead to a different conclusion. The principle underlying Section 8, T.P. Act, lays down no more. The general rule there enacted is made subject to an exception, viz., "unless a different intention is expressed or necessarily implied." In each case the question resolves itself into one of construction of the particular document. In construing a document antecedent events, subsequent conduct of the parties to it and surrounding circumstances are as important as the words employed in disposing of a property. The deed of waqf so far as it bears on this question runs thus:
My son Manzur Ahmad, sold the zemindari property in Bhitaura Kalan and Amkhera mentioned below to me for Rs. 2,00,000, took Rs. 10,000 a portion of the consideration money from me and left the remaining amount of Rs. 1,90,000, with me as an amount dedicated for religious purposes and authorized me to spend the same. Out of the said amount Rs. 15,000 has been spent up to this time. Instead of spending the amount of consideration after which the charity shall come to an end, it is more beneficial, to make a waqf of the said property and utilize the income therefrom in charitable deed as it will be a continual gift and permanent charity. I, therefore, while in a sound state of body and mind and of my own accord withdraw my possession from the entire 20 biswas "asli" zamindari property in the village of Bhituaura Kalan... and the entire 20 biswas "asli" zamindari property together with the cultivated lands in mauza Amkhera, together with all the rights appertaining thereto and make a waqf of the same in the name of the Almighty.
6. Now the language of the deed is quite clear to my mind as conveying no more than what the lady believed, or pretended to believe, to have purchased under the sale which is mentioned in the forefront of the deed and is a governing factor in the entire frame work of it. Instead of spending the unpaid price of "the property," which would sooner or later be exhausted she proceeds to make a waqf of the "said" property. The only property which was previously mentioned in the deed is the "zamindari property" which her "son Manzur Ahmad sold" to her. It is repeated later on in the deed that she made a "waqf of the same." I cannot pursuade myself to hold that these words mean no more than the villages named without any reference to the particular estate which the executant declared she possessed in them. It is not permissible, in my opinion, to read the deed as if it merely stated that "villages Bhituaura and Amkhera are made waqf" and to ignore the qualifying expressions which raise important implications and confine the property affected thereby to the rights acquired under the sale-deed. The words "together with all the rights appertaining thereto" following the expression "with the cultivated land" have reference only to the various sources of income such as sewai etc., and cannot have the effect of enlarging the rights acquired under the sale-deed previously disposed of.
7. This interpretation of the deed finds support from the events that had preceded it. Manzur Ahmad was not on the best of terms with his uncle and father-in-law, Fazal Ahmad and one great object which he and his advisers had was to keep the property out of the reach of his heirs. It does appear that he or his advisers intended to label the property as waqf, whether real or illusory it is needless to consider. If he had executed a deed of waqf it could take effect only to the extent of one-third of his property, being made in a state of death illness. A sale was, therefore, preferred as it was not affected by that rule, if made for a fair price. Of the consideration the major part was left with the mother who was trusted to spend it in charity. It is probable that it was then contemplated that in lieu of cash the vended property be made waqf by the vendee who laboured under no disabilities. Whatever his intentions might have been, there can be no doubt that the mother was in his confidence, and she executed the deed of waqf ten months later, when the heirs other than herself asserted their right of inheritance repudiating the sale-deed and she, on the other hand, maintained that the two villages did not form part of the assets of her son who had sold them to her in his lifetime. She could not have the remotest intention of making waqf of her right as an heir of her son or even of asserting it. Such a right according to her then professions did not exist. I am inclined to think that the deed of waqf was purposely so drawn up as to make it clear that she dedicated only what she had purchased. An express reservation of her right as an heir was considered, as it was, highly inexpedient in view of pending disputes and the attitude she was adopting to exclude the heirs.
8. This Court pronounced the sale-deed as invalid on 5th December 1917 and her conduct shortly afterwards is very significant. She was examined as a witness on 15th March 1918 in one of the many proceedings between the present plaintiff-appellant and herself. The questions put to her and answers given by her are illuminating. These are:
Q. What arrangement will you make for the payment of the amount under account, found due by you?
A. I shall execute a sale-deed in respect of my legal shares in mauza Amkhera. Pargana Richha, tahsil Baheri, and mouza Bhitaura Pergana Pilibhit or pay the amount in cash.
Q. You have made a waqf of your shares in villages Amkhora and Bhitaura Kalan. How can you execute a sale-deed in respect of them?.
A. Manzur Amad sold these villages to me on 29th August 1912. The said sale-deed has been declared invalid by the Hon'ble High Court on account of its being executed at the time of death. Hence the will (waqf?) too, which had been executed by me, by rights of purchase, has become invalid. I can execute a sale-deed in respect of my legal shares in the villages aforesaid. I have not made a waqf of them.
9. The intention herein declared was carried out on 10th June 1918 when she executed the sale-deed in favour of Raja Har Prasad and Raja Lalta Pershad the predecessor-in-title of defendant-respondents 2 to 6 in consideration of Rs. 80,000 out of which Rs. 61,000 was left with the vendee for payment to the plaintiff-appellant in respect of what is mentioned in her statement above quoted. As soon as the sale-deed was out of question she asserted her right of inheritance which was no more affected by the deed of waqf than the right of any other heir. It was not due to a change of front but to a consciousness in her mind that she had made a waqf of what she thought she owned under the deed of sale.
10. It should be borne in mind that she was a pardanashin lady and unless it is established by those who rely on the deed of waqf that this aspect of it was fully explained to her and understood by her, it cannot be upheld so as to divest her of the right which she was subsequently declared to have inherited from her son. For aught we know, if it had been brought home to her that the effect of the deed was, as is now contended for, she might have preferred to drop the matter altogether or to make express reservation in respect of it. There is absolutely no such evidence on the record. In a comparatively recent case, Faridunnisa v. Mukhtar Ahmad A.I.R. 1925 P.C. 204, their Lordships of the Privy Council refused to uphold a deed of waqf which was found to have been drafted on instructions given by a pardanashin lady but before it was faired out on the stamp paper slight variations were made in regard to some matters of detail, even though the faired out deed containing the alterations was subsequently read out and explained before the registering officer. Their Lordships re-affirmed the rule which enjoins extreme caution in giving effect to the deeds executed by pardanashin ladies in view of the peculiar disabilities under which they labour.
11. Another process of reasoning besides the one based on the construction of the document, leads me to the same conclusion. Reading the sale-deed and the waqf deed together, as I think we ought to, we find that Mt. Rahim Bibi was made a trustee as regards the sum of Rs. 1,90,000 left with her for charities. The beneficiaries under such a trust were the charities-let us designate them as God Almighty in whom it would vest through human agency according to Mahomedan conception. In discharge of her obligation to God Almighty she made a waqf of the villages in lieu of the aforesaid sum of money. The sale-deed failed and with it the trust under which charities or God Almighty were the beneficiaries, also failed. The waqf which took the place of such a trust cannot stand. A concrete instance will better explain the position. Suppose, Manzur Ahmad had directed in the sale-deed that the sum of Rs. 1,90,000 be paid to an individual named and suppose also that Mt. Rahim Bibi made a gift of the two villages to such individual instead of paying cash to him, it is impossible to maintain that the donee would be allowed to retain the villages in the event of the sale and with it the direction to the vendee to pay the consideration to him, being set aside. The charities or God Almighty in the one case and the donee in the other must restore the advantage gained under an arrangement of that kind. Dedication is tantamount to gift to the deity. I think Section 65, Contract Act, fully applies to a case like this. It runs as follows:
When an agreement is discovered to be void, or when a contract becomes void, any person, who has received any advantage under such agreement or contract is bound to restore it or to make compensation for it, to the person from whom he received it.
12. There was an agreement between Manzur Ahmad, the vendor and Mt. Rahim Bibi, the vendee that Rs. 1,90,000 would be spent on 'charitable purposes.' In pursuance of that agreement she assigns certain properties to charities by making waqf of them. The charities or God Almighty received to that extent an advantage under the agreement embodied in the sale-deed which is subsequently 'discovered to be void.' Every 'person' whether a party to the agreement or not, is bound to restore it.' The word 'person' in that section includes a juristic person and is not limited to a human feeling.
13. For the foregoing reasons I am unable to accede to the contention put forward on behalf of the plaintiff-appellant by his learned Counsel that the deed of waqf, though it cannot take effect as regards the two villages in their entirety is operative to the extent of one-third which belonged to Mt. Rahim Bibi as an heir of her son. But for the view that I have taken of the waqf not being annexed to the property she inherited from Manzur Ahmad as distinguished from the property she purchased I am in full agreement with my learned colleague. I hold also that the suit is not barred by res judicata or Section 233(K), Land Revenue Act for the reasons so lucidly set forth in his judgment. The result, however, of my finding on the vital question, whether the deed of waqf divested Mt. Rahim Bibi of her one third share in the two villages, which she has been found to have inherited from Manzur Ahmed is that plaintiff-appellant has no right as mutwalli in the property in dispute which remained unaffected by waqf. I would uphold the decree of the Court below dismissing his suit with costs.
Kendall, J.
14. The suit out of which this appeal arises was filed by Shaikh Fazal Ahmad mainly for a declaration that a 1/3rd share in each of the villages, Bithaura Kalan and Amkhera is property dedicated in a deed of waqf and that defendants 1 to 6 have no right in it. The facts which led up to the suit will need some preliminary explanation, and in the first place the short pedigree given in the plaint and in the judgment of the lower Court may be consulted. Fazal Ahmad the plaintiff-appellant had a brother Zahur Ahmad (deceased) who married Mt. Rahim Bibi, and they had a son named, Manzoor Ahmad. Manzoor Ahmad possessed considerable property, but though he married more than once he had no family. He appears to have been on bad terms with his uncle, Fazal Ahmad. On 29th August 1912 he executed a document purporting to be a sale-deed of the whole of his property in favour of Mt. Rahim Bibi. This deed was subsequently held to be invalid, but this question was not finally decided until 8th December 1917 when the matter was set at rest by the High Court. The main question for decision in the present suit is whether a deed of waqf which was executed by Mt. Rahim Bibi on 23rd June 1913, dedicating two of the villages which had been conveyed to her by that invalid deed of Manzoor Ahmad is valid to the extent of the share which Mt. Rahim Bibi inherited from Manzoor Ahmad.
15. Two or three days after executing the invalid sale-deed Manzoor Ahmad died. Mt. Rahim Bibi believed herself to be the owner of the whole of this property under the sale-deed which had not yet been declared to be invalid. It was about ten months later that she executed the deed of waqf. Before considering that deed in detail it may be as well to give a brief history of subsequent events, in order to explain the attitude of the parties to these proceedings, especially that of the plaintiff Fazal Ahmad. After the death of Manzoor Ahmad there was litigation between Mt. Rahim Bibi and Manzoor Ahmad's other heirs, who claimed that the deed executed by Manzoor Ahmad was not a sale but a gift. A suit was brought by the widows of the deceased for possession of their shares by inheritance, and for avoidance of the so-called sale-deed. Mt. Rahim Bibi, however, acted as if that deed was valid, and after executing the deed of waqf in June 1913 applied for and obtained mutation of names in both villages on the basis of the deed of waqf. From the revenue Court proceedings printed at pp. 85 and 89 of the printed book it is clear that mutation had been obtained in her name after the death of Manzoor Ahmad, and that she had mutation effected, after from her own name "in favour of God the Almighty." The present plaintiff, Fazal Ahmad, who as one of the heirs of Manzoor Ahmad was at that time disputing the deed of sale and the wakf, had by some means become the lambardar of these villages, and succeeded in preventing the lady from realizing the profits, and in consequence she had to execute leases and also sale-deeds of the arrears of profits. As to the amount she realized and the manner in which she disposed of the money there is very little evidence. But it appears that she was doing her best to realize the profits and that she was being baulked as far as possible by her brother in-law, Fazal Ahmad.
16. On 3rd January 1918, after the decision of the High Court, several matters that were in controversy between Fazal Ahmad and Mt. Rahim Bibi were referred to arbitration. It may be mentioned that Mt. Rahim Bibi had conveyed some property to her two nephews Taj-uddin and Wasal-uddin whose names appear in the pedigree, and who in these arbitration proceedings were supporting her. The arbitrator made his award on 22nd April 1918, and this is printed at pp. 173 to 185. The validity of the waqf was not one of the matters which had been submitted to him for decision, but he did express an opinion in his award that deed like the sale deed was fictitious, unlawful, null and void, and he gave a decree by which Mt. Rahim Bibi was directed to pay to Fazal Ahmad Rs. 61,480-6-1 within two months or else to transfer her shares in the villages of Bithaura Kalan and Amkhera to him. Instead of doing this Mt. Rahim Bibi executed a sale deed of these villages in favour of Rai Bahadur Har Prasad, defendant 1 and the predecessor of defendants 2 to 6. These are the contesting defendants. The award was filed in Court and was at first embodied in an ex parte decree, but an application to set aside this decree was ultimately successful, and the case was reminded, with the result that on 14th September 1920 the Subordinate Judge refused to make the award a rule of the Court.
17. On the strength of the sale-deed executed by Mt, Rahim Bibi in 1918 the contesting defendants sued for partition of the property which they had bought from her. Fazal Ahamd naturally founds his position considerably changed since the days when he had contested the execution of the deed of waqf. If that deed was invalid Mt. Rahim Bibi had a right to sell the property to the respondents. On the other hand if the deed of waqf was a good one, the respondents could claim no title at all. In filing the present suit therefore he has pleaded that the deed of waqf is a good one and that the sale to the respondents is invalid.
18. The learned Subordinate Judge has dismissed his suit on various grounds. He has held that the waqf was invalid. His reasons for his finding are not very clearly defined, but the main ones appear to be that the deed of waqf was executed in order to defeat creditors and to fortify the invalid deed of sale in favour of Mt. Rahim Bibi. He also found that the suit was barred by the doctrines of estoppel and res judicata.
19. These last issues may conveniently be dealt with in the first place. The Subordinate Judge found that there were certainly elements of estoppel present in the case, arising out of certain representations and declaration made before the suit by Fazal Ahmad. These need not be enumerated here, but they were made as may be readily understood at a time when Fazal Ahmad was contending that the deed of waqf was invalid. He was doing this in his capacity as one of the heirs of Manzoor Ahmad. Fazal Ahmad however, is now suing in his capacity as a mutwalli under the deed of waqf having succeeded Mt. Rahim Bibi who died on 15th August 1921. It will be seen from the deed of waqf (p. 61 of the printed record) that Mt. Rahim Bibi appointed herself the first mutwalli, and after her death Shaikh Wasal-uddin, Shaikh Shamsuddin, Shaikh Fazal Ahmad and Khalil-ul-Rahman. These other gentlemen have been made proforma defendants, and after the question of estoppel had been raised, one of them, Khalil-ul-Rahman, made an application to be impleaded as a co-plaintiff but his application was rejected. It appears to me that the Subordinate Judge would have been well advised to allow the application if he considered that Fazal Ahmad was personally estopped from proceeding in this suit on behalf of the waqf, for it would certainly have been an advantage to have the issues between the representatives of the waqf and the contesting defendants, who denied the waqf, settled once for all. However, I think it is clear that Fazal Ahmed was not estopped. Whatever his private views may have been about the validity of the waqf and however he may have expressed them, they would not estop him from supporting the validity of the waqf in his capacity as mutwalli.
20. It has been urged in argument, however, that Fazal Ahmad is bound by the order of the arbitrator. Although this was not made a decree of the Court, it is claimed that it will nevertheless be binding on the parties to the reference. This is a wider question than that of the personal estoppel of Fazal Ahmad because Mt. Rahim Bibi was herself a party to the reference. The terms of reference are printed on p. 161 and it is admitted that they do not empower the arbitrator to decide the question of the validity of the waqf. It is not, therefore, necessary to consider whether the decision of the arbitrator on such a point would have been binding on the parties to the agreement, or whether the parties had the power to refer such a matter to arbitration. The fact remains that they did not do so. It is true that the arbitrator expressed an opinion on the subject, viz: that the waqf was invalid, and apparently both Fazal Ahmad and Mt. Rahim Bibi were prepared to accept that decision and to act upon it. In fact the lady proceeded forthwith to execute the sale-deed in favour of the respondents within a few months of the arbitrator's award, evidently in the belief that she was now free to regard the waqf property as her own. It does not follow from this, however, that the obiter dictum of the arbitrator on a question which had not been formally referred to him by the parties in the agreement of reference was binding on the parties to the arbitration. The cases of Muhammad Newaz Khan v. Alem Khan [1891] 18 Cal. 414 and Bhaurao v. Radhabai [1905] 33 Bom. 401, on which the lower Court has relied, show that a refusal of the Court to file the award does not have the effect of making the award invalid, and that it may be binding on the parties to the reference, but they go no further. The Subordinate Judge has also held that Section 233K, Land Revenue Act, bars the plaintiff's suit, but the same argument applies to this issue as well. In the partition proceedings of 1919 Fazal Ahmad had made an objection to the application of the present respondents on the ground that the property which they claimed belonged to him as a result of the arbitration award. The question between him and the respondents was raised and decided in the revenue proceedings, but he did not represent the waqf property at that time, and it does not appear that he had any title to raise an objection on behalf of the waqf even if it had been in his interest to do so, which at that time it was not.
21. The chief question in the appeal, however, is whether the deed of waqf itself is a valid one. It has been contended on behalf of the appellant by Mr. O'Conor that the learned Subordinate Judge was not justified in finding that the property in dispute is not a waqf property and that the deed was a colourable and fictitious document. The deed has been attacked mainly on the ground that it is closely connected with the sale-deed executed by Manzoor Ahmad in August 1912, and this question needs close examination. In the so-called sale-deed, Manzoor Ahmad purported to sell the whole of the zemindari property in the two villages to Mt. Rahim Bibi for a consideration of Rs. 2,00,000. Of this some Rs. 10,000 was stated to have been received in cash, and the balance of Rs. 1,90,000 was left with the vendee with instructions that she should spend it at her discretion in charitable purposes for the eternal benefit of my soul."
22. As has already been stated, Manzoor Ahmad died within a few days of executing this deed and Mt. Rahim Bibi obtained mutation in her own name. She did not spend the cash on charity, but on 23rd June 1913 executed a waqf of the corpus of the property. The important clauses in the deed are as follows:
My son Manzoor Ahmad deceased sold the zamindari property in Bhitaura Kalan and Amkhera mentioned below to me for Rs. 2,00,000, took Rs. 10,000 a portion of the consideration money from me and left the remaining amount of Rs. 1,90,000 with me as an amount dedicated for religious purposes and authorized me to spend the same. Out of the said amount Rs. 15,000 has been spent up to this time, Instead of spending the amount of consideration after which the charity shall come to an end, it is more beneficial to make a waqf of the said property and utilize the income there from in charitable deeds as it will be a continual gift and permanent charity. I, therefore, while in a sound state of body and mind and of my own accord withdraw my possession from the entire 20 biswas asli zemindari property... together with all the rights appertaining therein and make a waqf of the same in the name of the Almighty.
23. I am not clear whether the Subordinate Judge intended to find that the waqf was absolutely fictitious, that is to say, that the lady never intended to execute a waqf deed or never intended to transfer the property by means of this deed and to dedicate it, or whether he considered that there was a transfer and dedication but that it was made in order to defeat creditors, or for some other indirect purpose. No fault can be found with the form of the deed, or with the catalogue of objects on which the income from the property is to be expended. Some attempt has been made to show that the waqf was never carried into effect. We know, as has been stated earlier in this judgment, that Mt. Rahim Bibi obtained mutation in favour of Almighty God, and that she executed leases of the villages because she was unable to collect the profits herself owing to the obstruction of the present plaintiff-appellant, Fazal Ahmad. There is evidence to show also that she sold the profits which she had not been able to collect. It is argued that in obtaining mutation she was merely completing the fiction initiated by the deed itself. That of course is a possible theory, but it does not account for the leases and the sale-deeds of profits. In these she describes the property as waqf property and herself as the mutwalli; for instance in the sale-deed in favour of Tasdiq Husain, dated 1916, three years after the execution of the waqfnama, she is still maintaining the existence of the waqf. All the evidence on the file points to the conclusion that whether the waqfnama was colourable or not it was intended to be a real dedication and not merely a fictitious deed. It is argued that even if Mt. Rahim Bibi did obtain the profits of these villages as mutwalli yet it is not proved that she spent the money on the charitable objects set forth in the deed. It is true that there is very little evidence to show how the money was spent. It must, however, be remembered that the suit was brought in 1924 and that it must be extremely difficult to produce in Court direct evidence of the manner in which the deceased lady disposed of the profits over a period which started 11 years before. The plaintiff was not called upon by any definite pleading in the written statement, or by any direct issue, to account for the disposal of these profits. In fact it was for the defendants to prove if they wished to do so that the profits had not been properly spent, if they wished to support their plea that the deed of waqf was fictitious and colourable. There is on the record a long statement which was made by the lady herself in a suit between her and the heirs to Manzoor Ahmad's estate. In this she deposed that she had spent a great deal of money on pilgrimages to Mecca and very little on herself, that she did execute this deed as a deed of waqf though the validity of the waqfnama was not being agitated in those proceedings and that she did so for the peace of Manzoor Ahmad's soul. She had also executed a deed of waqf for the salvation of her elder son who dial before Manzoor Ahmad. Such evidence as there is on the file, therefore, shows that she did intend to execute an effective waqfnama, that the waqfnama is unimpeachable in form and that she did take steps to carry it into effect. To meet this there is nothing except hypothesis.
24. The argument that has been pressed most strongly in this Court is that the wording of the deed of waqf itself shows that Mt. Rahim Bibi intended to dedicate the interest that she had derived in the two villages from Manzoor Ahmad under the invalid sale-deed, and that as it has now been proved that she derived no interest from him under that sale-deed it necessarily follows that in executing the waqfnama she really transferred or dedicated nothing at all, and the terms of the deed cannot be made to cover the interest in the property which she derived by inheritance on Manzoor Ahmad's death. In fact it is sought by the respondents to trace the closest possible connexion between the waqfnama and the deed of sale executed by Manzoor Ahmad. This was what the arbitrator did when he came to the conclusion that the waqfnama like the sale-deed was null and void. It is argued that this waqfnama was the consideration for the sale of villages by Manzoor Ahmad, and that as the sale has been held to be invalid the consideration must fail. It is perfectly true that the sale-deed contains an instruction to the lady to spend the purchase money in charitable purposes, and that instead of doing so she executed the waqfnama. Even if it could be held, however, that there was a contractual obligation with Manzoor Ahmad to execute the waqfnama, yet when the waqfnama had been executed the matter had passed beyond the stage of a contract with Manzoor Ahmad, and there had been a definite transfer of property and dedication to the Almighty. It does not seem to me that this could be revoked merely because the sale had failed. Nor do I believe that in executing the waqfnama Mt. Rahim Bibi made any such mental reservation as is suggested by the respondents. The argument is to the following effect. In the waqfnama Mt. Rahim Bibi first states that Manzoor Ahmad sold the property to her and left the purchase money with her. She, therefore, withdrew her possession and made a waqf of the property in the name of the Almighty. That is to say, she only executed the waqfnama because Manzoor Ahmad has sold her the property and left the purchase money with her, and it follows that she was only dedicating the interest which she had derived from Manzoor Ahmad. At the time when she executed the waqf the lady was legally entitled to 1/3rd of the property as the heir of Manzoor Ahmad and not to the whole of it as purchaser under the sale-deed. She did not know that this was her legal position, but she believed herself to be the owner by purchase of the whole property. Did she say to herself:
I am executing this waqf on the understanding that the sale-deed holds good, but I do not intend to dedicate the property I inherited from Manzoor Ahmad in the event of the sale-deed being invalid.?
25. It is argued that this was her attitude when she executed the waqfnama, but I cannot bring myself to believe that these doubts really pissed through her mind. What she was thinking of was not the interest that she had bought from Manzoor Ahmad, or the interest that she might have inherited from him in the course of law but she was thinking of "the zamindari property in Bithaura Kalan and Amkhera" and whether she derived her title to it from the sale-deed or from inheritance this is what she dedicated in the waqfnama. Under Section 8, T.P. Act:
Unless a different intention is expressed or necessarily implied a transfer of property passes forthwith to the transferee, all the interest which the transferrer is then capable of passing in the property and in the legal incidents thereof.
26. On the face of the waqfnama it is a transfer or dedication of the zamindari property in the two villages and not of the questionable interest which she had derived under the sale-deed. If she had no interest in the property, of course she could transfer nothing; but she did legally own one-third of these villages, and was capable of passing that interest by means of the waqfnama. It appears to me that she must be held to have passed that interest, and that the waqfnama must be held to be valid to the extent of a third share in these villages.
27. Mr. O'Conor on behalf of the appellant has frankly stated that he cannot expect the sympathy of the Court of behalf of his client and in this I fear that he is right. It is, however, in evidence that the respondents knew all the circumstances of the case when they bought the property from Mt. Rahim Bibi, that is to say they knew there was in existence a waqfnama and they were warned of this by the plaintiff-appellant himself. Whether they ultimately lose their money or not, however, it is clear that a valid deed or waqf cannot be set aside for sentimental reasons. I would, therefore, allow the appeal, set aside the decree and order of the lower Court and direct that the plaintiff-appellant's suit be decreed with costs in both Courts.
Order of Reference.
28. As the two Judges composing this Bench are divided in opinion on a question which is decisive of the appeal and as it is one of law and of considerable importance to the parties it is referred to a larger Bench.
29. The question to be referred to such Bench is:
Whether the deed of waqf dated 23rd June 1913, assuming it to be otherwise valid, operates on the one-third share of Mt. Rahim Bibi in villages Bithaura Kalan and Amkhera or whether it is confined to such estate as she was believed to possess in thorn under the sale-deed dated 29th August 1912.
30.The Hon'ble Chief Justice, will be requested to form such larger Bench for the decision of the question referred to above.
Mukerji, J.
31. A single question of law has been referred to this Bench because of a difference of opinion between the learned Judges who constituted the Bench hearing the first appeal. The question is formulated as follows:
Whether the deed of waqf dated 23rd June 1913, assuming it to be otherwise valid operates on the one-third share of Mt. Rahim Bibi in villages Bhitaura and Amkhera or whether it is confined to such estate as she was believed to possess in them under the sale-deed dated 29th August 1912.
32. (After stating the facts the judgment proceeded). It will be noticed that the question before this Bench is one of pure law. It is necessary to emphasize this fact, because it was sought to raise certain questions of fact in the course of argument, on behalf of the respondents. For example, it was suggested that Rahim Bibi had no knowledge that she had an alternative title to the property, that she had no competent advice and so on. In my opinion, for the purpose of deciding the question, we have to assume, as the question itself assumes, that the deed of waqf of 23rd June 1913 is a perfectly valid document and has no flaw of any kind.
33. The point for decision is rather narrow although many facts had to be narrated to fully appreciate the position. It is common ground that the guide furnished by law, in this case, to the Court, is Section 8, T.P. Act. That section lays down a rule of construction in the absence of a different intention being expressed or necessarily implied. It runs as follows:
Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee of the interest which the transferrer is then capable of passing in the property and in the legal incidents thereof.
34. For the plaintiff it is contended that Rahim Bibi made a waqf of the entire villages and, if from want of title to the entire villages, the waqf cannot attach to them, in their entirety, it must attach to her one-third share. On the other hand it is contended that Rahim Bibi had two titles to the property, one title being that which she got by virtue of the sale-deed executed by her son in her favour and the other title, which was in the alternative, was that of inheritance, on the death of her son It is further urged that Rahim Bibi by the deed of waqf, transferred or purported to transfer only such title as she thought she possessed by virtue of the sale-deed and this necessarily shows that she excluded from the operation of the transfer, such title as she got by right of inheritance. I have to find out which of these two contentions is right.
35. To start with, an examination of Section 8, T.P. Act, shows that it lays down a rule of construction which must be applied to the case of a transfer which, ex hypothesi, does not tell us whether any particular interest, possessed by the transferee, was meant to pass by the conveyance or not. The object of the section is therefore, to stabilize title and to remove, from the region of pure speculation, what pissed in the mind of the transferrer or the transferee at the date of the transfer. It seems to me to be also reasonably certain that, when Section 8, speaks of 'transfer of property', it speaks of transfer of some property which may be tangible or intangible, but not mere title. But when it speaks of "interest" it includes title, large or small. For example, a man may possess two titles to a property. He may be an executor, entitled to dispose of the property in its entirety, and he may also own a beneficial interest, in a fractional share in the property. Under Section 8, therefore, when such a man transfers the property, without clearly signifying whether he has transferred the property as the executor or as a part owner of it, it will be presumed that the larger interest, namely, that of an executor also passed along with the smaller interest as a part owner: see Bijraj Nopani v. Purasundari A.I.R. 1914 P.C. 92 and Ganga Bai v. Sona Bai [1916] 40 Bom. 69.
36. I have found it; necessary to make these remarks as it was argued at the Bar that a man transfers not a "property" but his "title" to the property. In my opinion Section 8, T.P. Act, contemplates the transfer of property and, then lays down what are the "interests" in that property that should be deemed to have passed. The reason for this argument was that in the deed of waqf Mt. Rahim Bibi makes no mention, whatsoever, of her right to inherit a one-third share in the villages and makes mention of only the fact that she purchased the property from her son.
37. There can be no doubt that Rahim Bibi purported to transfer, by way of a waqf, the entire villages. There can also be no doubt, to my mind, that the result would be the same, if Rahim Bibi executed a sale-deed of the villages, instead of a waqf. If Rahim Bibi had sold the entire villages instead of making a waqf of the same, it having been held that she got no title under the sale-deed executed by her son, the purchaser would still have got a title to the one-third share Rahim Bibi inherited from her son. On the language of Section 8, T.P. Act, therefore, the presumption is that when Rahim Bibi transferred the two villages, she, thereby, passed not only such title (good, bad or indifferent) as she had acquired or she believed she had acquired from her son, by virtue of the sale-dead but also such title as she had, as a matter of law, acquired by inheritance on the death of her son.
38. It was contended that the deed of waqf and the sale-deed should be read together and when read together, they afforded a clear indication that Rahim Bibi was not transferring her such interest as she had inherited on the death of her son. As I have said before, the question, therefore, narrows itself down very much. We have to find out whether the deed of waqf expresses an intention to the effect that such right as Rahim Bibi might hold in the villages in question, by right of inheritance from her son, were meant not to pass to the Almighty and that it was the intention of Rahim Bibi, either clearly expressed or necessarily implied, that if Rahim Bibi's title by purchase from her son, to the entire villages, failed, the Almighty would be deprived of all interest in the villages and that Rahim Bibi would be at liberty to sell her one-third share in the two villages to any party she liked. In my opinion, the sale-deed and the deed of waqf, even if read together, do not afford any such indication.
39. I have already mentioned that the sale-deed executed by Manzur Ahmad recites that he left almost the entire consideration with his mother to be spent on charitable purposes. It has been found by this Court and the finding is res judicata, that nothing whatsoever was paid as the sale consideration. The transaction was one of pure gift. Rahim Bibi, however, says in the deed of waqf that she was executing the document in pursuance of the wishes of her son. She knew that she had a third share in these two villages gifted to her, as much and no more as she had, in the other properties of Manzur Ahmad, inherited by her along with other heirs. She must have therefore known that by executing the deed of waqf she was giving away her third share in the two villages. If, therefore, she wanted to make a waqf, conditionally, that is to say, if it was her intention that the waqf should take effect only in the case of the ostensible sale-deed in her favour being good in law, she would have said so. We need not here consider, if she had made a conditional waqf, how far it would have been valid in law. I need not repeat, but the whole point is, there is nothing in the dead of waqf which indicates unmistakably, that the deed of waqf was a conditional deed and was to be of no effect at all, if the sale in favour of Rahim Bibi fell through. The fact that she makes mention of the sale-deed in her favour is only because she had to recite the source of her title, according to the practice of the country. If she mentions that it was the wish of her son that the sale proceeds should be spent on charity, she does so, to explain the motive for her action, although she does not profess to fully comply with her son's wishes, which were to the effect that the sale proceeds should be spent and not the corpus of the estate. Giving the case my best consideration, I am clearly of opinion that the waqf does not attach to the one-third share of Rahim Bibi.
40. I am not at all concerned as to how far morally justified is the plaintiff in making the claim. At one stage of the argument before us, it was said that the sale proceeds of the property, now in dispute, went to satisfy a debt due to the plaintiff himself, from Rahim Bibi. That may be so. The debt was a just debt and it was the duty of Rahim Bibi to pay it; but that did not mean that she should have sold the property which she had dedicated to the Almighty. She had owned other properties which she had given away to her brother's sons. Some part of that property should have been sold to pay Rahim Bibi's just debts, or, if Rahim Bibi could not pay her debts, she might have chosen to take shelter in the insolvency Court. But she chose to sell unsalable property and raised money, there is nothing morally wrong, on the part of the plaintiff, to accept the money and then say that the sale was not justified. The plaintiff could not compel Rahim Bibi to sell other properties, in order to pay him. He did not persuade her to sell the waqf property. As I have said, my answer to the question is that the waqf does attach to the one-third share of Rahim Bibi.
Kendall, J.
41. For the reasons given in my judgment of 1st August 1928, 1 agree.
Niamat Ullah, J.
42. I am of opinion that the deed of waqf dated 23rd June 1913 does not operate on the one-third share of Mt. Rahim Bibi which she inherited from Manzur Ahmad, in villages Bhitaura and Amkhera, and that it is confined to such estate as she was believed to possess in them under the sale-deed, dated 29th August 1912. No further light was thrown on the matter in controversy and the arguments before the Full Bench proceeded on the same lines as before. My reasons are fully set out in the judgment, delivered as a member of the Division Bench making the reference which should be referred to as indicating my views on the questions involved in the reference.
43. The answer to the question of law, referred to the Bench of three Judges is the answer of the majority, viz. the waqf does attach to the one-third share of Rahim Bibi, in the two villages and does not fail, in its entirety, because the transaction of sale by Manzur Ahmad, in her favour, fails.
Kendall, J.
44. The question referred to the Full Bench was:
Whether the dead of waqf dated 23rd June 1913, assuming it to be otherwise valid, operates on the one-third share of Mt. Rahim Bibi in villages Bhitaura Kalan and Amkhera or whether it is confined to such estate as she was believed to possess in them under the sale deed dated 23th August 1912?
45. This question has been answered in the decision of the Full Bench, dated 5th March 1929, viz:
the waqf does attach to the one-third share of Rahim Bibi in the two villages and does not fail, in its entirety, because the transaction of sale by Munzur Ahmad in her favour, fails, On the appeal coming before the original Bench for disposal after this decision it was argued by Sir Tej Bahadur Sapru for the respondents that although the decision of the Full Bench showed conclusively that the waqf must attach to the one-third share of Mt Rahim Bibi, yet the question was still open whether Mt. Rahim Bibi as a pardanashin lady could be held to be bound by the deed, seeing that it had not been proved that the legal position had been fully explained to her before or at the time when she executed the deed of waqf, that is to say, it had not been explained to her that in the event of the sale-deed executed by Manzur Ahmad being held to be invalid, the waqf which she was executing would attach to the estate which she would inherit as the heir of Manzur Ahmad. In support of this argument reference was made to the decision in the cases of Kamawati v. Digbijai Singh A.I.R. 1922 P.C. 14 and Farid-unnissa v. Mukhtar Ahmad A.I.R. 1925 P.C. 204. In these cases it is to be observed it was held that the pardanashin lady was not bound by her deed in which owing to a misapprehension she had parted with larger estates that she believed herself to be possessed of, that is to say, the effect of the deed was detrimental to her owing to her ignorance. In the present case when it was originally argued before us the way in which the respondent's contention was put forward was rather different. In discussing the construction of the deed of waqf it was suggested that, as the lady was not aware that in the event she would be found to be possessed of the estate inherited from Manzur Ahmad not of the estate sold to her by Manzur Ahmad it cannot have been her intention to transfer the former estate by the deed of waqf, and consequently the deed of waqf could not attach to that estate. This was the point on which my learned brother and I disagreed, and this was the point decided by the Full Bench.
46. The question whether the circumstances were fully explained to the lady was not one which ever had any pre-eminence in the proceedings. In the plaint the case in support of the waqf is set forth in paras. 3 and 4, and in the written statement in reply to para. 3 of the plaint it was said:
Mt. Rahim Bibi had never the intention to make a "waqf" in respect of any portion of the estate of Manzur Ahmad, nor has she done so. If any deed of "waqf" referred to in this paragraph was brought into existence in any way, it is simply fictitious.
47. It was not set forth that the legal position had not been explained to Mt. Rahim Bibi, or that the deed of waqf was invalid because of any misapprehension on her part due to her being a pardanashin lady. The plaintiff was, therefore, never called on to answer this allegation or to bring evidence to prove that the legal position had been explained to the lady or that she herself understood it. Evidence was, however, brought to show that the waqf had been carried into effect and my own decision was that the evidence was sufficient to show that the lady believed herself to be the full proprietor of the whole estate, that she intended to transfer the whole estate by the deed of waqf, that she did so transfer it and that the deed was, therefore, effective as regards the smaller estate of which the subsequent event showed that she was the owner. As she was fully satisfied that she possessed the whole sixteen annas and was under no misapprehension as to the effect of the waqf on the estate, it was clear to me that the execution of the waqf was the free and intelligent act of the lady, and, therefore, there was no obligation on the plaintiff to bring positive evidence to prove that the whole legal position had been explained to her, viz., that if her title as vendee of the whole estate should fail, the waqf would attach to the lesser estate inherited from Manzur Ahmad. There was no doubt in my mind and I believe there was none in that of my learned brother as to the circumstances in which the waqf was executed, viz.. that she believed herself to be the owner of the full estate and that she intended to execute a waqf of it in that belief. The point in which we differed was this. I considered that she could not in the circumstances have had any intention of reserving any possible estate that she might be found to have inherited from her son: whereas my learned brother held that there might have been such an intention. There was, therefore, no question of fact before the Full Bench, and for this reason the Full Bench did not allow it to be discussed. The question whether on those facts Mt. Rahim Bibi as a pardanashin lady would be bound by the deed of waqf appears to me, therefore, to be one that is entirely covered by the decision of the Full Bench. The result is that I would allow the appeal, set aside the decree and order of the lower Court and direct that the plaintiff-appellant's suit be decreed with costs in both Courts.
Niamatullah, J.
48. I agree with my learned brother in allowing the appeal but for somewhat different reasons. I have already expressed my opinion on the contention now reiterated on behalf of the respondents, viz., that in the absence of evidence establishing that the effect of the deed of waqf, dated 23rd June 1913 (as found by the Full Bench) was explained to Mt. Rahim Bibi, admittedly a pardanashin lady, and that, therefore, it cannot operate to convey the interest which, in the events that happened, she must be deemed to have inherited from her son. The law is well settled that those who rely upon deeds containing dispositions by pardanashin ladies must establish not only that they executed the deeds intelligently but also that the nature and effect of the dispositions were explained to them and that it was with full knowledge of the correct legal import of such dispositions that they executed the deeds. Clear dicta in support of this proposition are to be found in Kamawati v. Digbijai Singh A.I.R. 1922 P.C. 14 and Farid-un-nissa v. Mukhtar Ahmad A.I.R. 1925 P.C. 204. It is not necessary to make reference to earlier cases in which the Privy Council have likewise laid stress on the necessity of such proof being given by those who seek to enforce deeds executed by pardanashin ladies. The requirement of the above rule exists even in cases where a deed is impugned by a pardanashin lady, or those claiming under her without specifically repudiating on the ground that the legal effect of the deed was not brought home to her: see Sudisht Lal v. Mt. Sheobarat Koeri [1881] 7 Cal. 245; Shambati Koer v. Jago Bibi [1902] 29 Cal. 749. Moreover, the pleadings in this case raised the question, in my opinion, with sufficient clearness. In para. 3 of the written statement, in answer to the corresponding paragraph of the plaint which was denied, it hag been averred that Mt. Rahim Bibi had never the intention to make a waqf in respect of any portion of the estate of Manzur Ahmad, nor has she done so. If any dead of waqf referred to in this paragraph was brought into existence in any way it is simply fictitious. The genuineness and validity of the papers mentioned in the said paragraph are not admitted.
49. To interpret the plea herein contained it should be remembered that the case of the defendants has throughout been that Mt. Rahim Bibi made waqf of what she believed at that time to have been conveyed to her by the sale-deed executed by her son, Manzur Ahmad, and not what she was subsequently held to have inherited from him. On the supposition that title passed to her under the sale-deed the village conveyed thereby would form no part of ''the estate of Manzur Ahmad" at the time of his death. On the other hand, if the sale-deed was invalid as eventually held by this Court, the villages would form part of "the estate of Manzur Ahmad" which would partly devolve upon her as one of his heirs. The plea embodied in para. 3 of the written statement carefully analyzed comes to the allegation that she did not make waqf of what she had inherited from her son, Manzur Ahmad, nor did she ever intend to make waqf of such interest. This being so, even according to a strict rule of pleading, the defence raised the question whether Mt. Rahim Bibi intended to make a waqf of what she inherited from her son, and the plaintiff who seeks to enforce the deed against such interest should, therefore, have established by satisfactory evidence that the effect of the deed, viz., that it operates to convey what she inherited from Manzur Ahmad, was explained to her or was otherwise present to her mind when she executed it. It is conceded on behalf of the appellant that no such evidence was adduced. It follows that she cannot be deemed to have intended to give such effect to the deed.
50. While I maintain now as I did before that the effect of the deed, dated 23rd June 1913 is not to convey one-third of the villages Bhitaura and Amkhera, I think that in view of the answer returned by the Full Bench to the reference made by us, the question cannot be raised at this stage. The Full Bench refused merely to entertain any questions of fact and not the consideration of law bearing on the reference. Mukerji, J., who delivered the judgment of the Full Bench, observes:
It will be noticed that the question before this Bench is one of pure law. It is necessary to emphasise this fact, because it was sought to raise certain questions of fact in the course of argument, on behalf of the respondents. For example, it was suggested that Rahim Bibi had no knowledge that she had an alternative title be the property, that she had no competent advice and so on. In my opinion, for the purpose of deciding the question, we have to assume, as the question itself assumes, that the deed of waqf of 23rd June 1913 is a perfectly valid document and has no flaw of any kind.
51. He proceeded to consider the question referred to the Full Bench and held that the deed of waqf, dated 23rd June 1913, operates in law on what Mt. Rahim Bibi inherited from Manzur Ahmad. In my earlier judgment I referred to the necessity of establishing by cogent evidence that Mt. Rahim Bibi intended the deed to be operative to that extent only as an argument leading to the conclusion that the deed cannot have such effect. No question of fact arises now or arose then, it being conceded that such evidence has not been given. It is only a proposition of law that we are concerned with, viz. whether in the absence of evidence that this effect of the dead was present to her mind the deed can operate so as to have that effect. The answer given by the Full Bench is wide enough to have impliedly disposed of all arguments of that kind. This Bench is bound to give effect to the opinion expressed by the Full Bench on the question referred to it. For the reasons stated by me above I allow the appeal with costs.
52. The appeal is allowed, the decree-order of the lower Court set aside and the plaintiff-appellant's suit is decreed with costs in both Courts.