Indian Kanoon - Search engine for Indian Law

the said office shall devolve till the passing of ages (i.e. for ever) and repetition of months, as God the merciful wills upon the offspring of my son (ba farzandani fsrzandam) from generation to generation (Naslan baad naslin) womb after womb (batnam baad batnio).

2. The whole controversy in this case depends upon the meaning to be attached to the Persian words mentioned above, which I have placed within brackets. Muzaffar died in the Bengali year 1271, corresponding to the English year 1864, and after his death his eldest son Madassar became the mutwalli and possessed the wakf estate under the terms of the wakfnama. Madassar died in 1280 B.S. and thereafter his only son Munshi Mahammad Ebrahim became the mutwalli. Ebrahim died childless in April 1900 and upon his death his widowed sister Fatema laid claim to the office of mutwalli and filed a petition for registration of her name as mutwalli in respect of the landed properties, under the provisions of the Bengal Land Registration Act. Mahammad Ismail and Abdul Ohid, the two surviving sons of Mujaffar opposed the application. Ohid later on abandoned the contest and the Deputy Collector who heard the application granted the prayer of Patema and directed her name to be registered as mutwalli of the wakf properties. There was an appeal taken against this order by Ismail but the appellate officer confirmed the order of the Deputy Collector, leaving open the question of title, and directing Ismail to assert his rights in a civil Court if he so desired. No civil suit was filed by Ismail, and Patema acted as mutwalli till her death in November 1937. After Patema's death her son Ojhi who was the original defendant in this suit, had his name enrolled as mutwalli with the Wakf Commissioner, under the Bengal Wakf Act of 1934 and took possession of the properties. Thereupon on 20th April 1931, the plaintiff who is the eldest son of Ismail, who died during Fatema's life time, applied to the Wakf Commissioner for having his name enrolled as mutwalli after setting aside the previous order made in favour of Ojhi. This application was rejected and on 17th June 1939, this present suit was brought. The plaintiff's case as made in the plaint or rather during trial, was, that on a proper construction of the wakfnama the office of the mutwalli should be held to devolve, in the first instance on the male descendants of Madassar. Failing male descendants of Madassar the office would go to the other descendants of the wakif and the oldest and the most qualified among them should be appointed mutwalli, and no woman could hold the office so long as any male descendant was available. The position taken up by the plaintiff therefore was that after Ebrahim's death the proper person to hold the office was Ismail the father of the plaintiff, and Fatema had no legal title to mutwalliship. Now that Patema was dead, the plaintiff as the seniormost male descendant of Muzaffar was entitled to the office of mutwalli under the terms of the wakfnama, and Ojhi the son of Patema had no right to it. The younger brothers of the plaintiff were made pro forma defendants to the suit.

7. It can, we think, be fairly gathered from these several clauses read together that the primary intention of the founder was that after his death his eldest son Madassar was to be the mutwalli and the devolution of office after the death of Madassar, would continue in his lineal descendants. The office of the mutwalli, as Clause (a) provides "shall devolve till the passing of ages... upon the children of my son (Ba Farzandani Farzandam) from generation to generation (naslan baad naslin) and womb after womb (batnan baad batnin). We agree with the Court below that the expression "my son" as used in the singular is correct translation and it refers to Madassar alone. The dispute is with regard to the meaning of the words "ba Farzandani" which have been translated as "upon the children (offspring)" by the defendant's translator. Does the expression "farzand" include children daughters? Mr. Gupta appearing on behalf of the defendant has fairly conceded that the word 'farzand' 'standing by itself may mean descendants through males only excluding the offspring of daughters. He contends however that it acquires a wider connotation and means descendants generally when the expression used is 'ba farzand' or there are words like "naslan baad naslin" or "batnan baad batnin" added to it. The point is important and requires careful consideration. But before we come to this point, it would be necessary to clear up several other matters which arise on the construction of the clauses set out above. Clause (b) it will be seen enumerates the qualifications of the Mutwalli and lays down that whoever amongst the male issue of offspring of Madassar is endowed with these qualifications he shall be appointed Mutwalli. The words "my son" occurring in this clause refer in our opinion to Madassar and none else and taking Clause (a) and (b) together, the reasonable construction would be that Mutwalliship would in the first instance devolve upon the descendants of Madassar, generation after generation, and this means that the earlier generation would exclude the more remote. The position thus is that the office would not go to the succeeding generation unless the earlier generation is exhausted, and the holder of the office for the time being would not be a fresh stock of descent. Clause (c) should in all propriety have come at the end of Clause (e) and not between Clause (b) and (d). It lays down the general proposition that so long as any of the descendants and blood relations either male or female of the wakif would remain, the Judge (or Kazi) would have no authority to interfere with the appointment of Mutwalli. The meaning is not at all clear. So long as Madassar's line continues, no difficulty might arise for the wakif lays down that the Mutwalli is to be appointed from among the descendants of Madassar. But what happens when Madassar's line is extinct? Would then the office go straightway to the other descendants or blood relations of the wakif without any intervention by the Court? If so what rules of preference are to be followed in making the appointment? Should the Mutwalli be chosen from all the descendants and blood relations of the wakif or preference is to be given to nearness of relation and seniority in age? It is also not clear what "blood relations" exactly mean. All these are debatable points, and we will have to come-back to the clause later on. Clause (d) provides that if amongst the children of the Mutwalli there are found more persons than one endowed with the qualifications which are enumerated in Clause (b), the senior-most amongst them would be appointed. Mutwalli, and if they are equal in age the choice would rest on pious Mussalmans. On no ground however a female could come in as Mutwalli, so long as a male is available. If a female has got to be appointed at all, it is laid down in Part 1 of Clause (e) that the husband of, the appointee must have all the qualifications which are prescribed for a Mutwalli under Clause (b). Clause (d) undoubtedly indicates that it was within the contemplation of the wakif that a female could be a Mutwalli under certain circumstances and the extreme contention put forward on behalf of the plaintiff, in the Court below, that only male descendants are eligible for appointment as Mutwalli has been rightly repelled by the learned Sub-Judge. The appellant's advocate, however, as said above, has entirely abandoned that line of argument before us. The controversy so far as Clause (d) is concerned relates to the meaning that is to be attached to the word 'Mutwalli" which occurs in the first line of the clause. According to the appellant it includes the wakif also, who is the first Mutwalli under the wakfnama, and therefore the provision relates to the descendants of Muzaffar as well. Mr. Gupta argues that the word "Mutwalli" means the Mutwalli for the time being, and according to him this clause would indicate that each Mutwalli was to be a fresh stock of descent. We do not think we can accept this contention as sound, nor do we feel inclined to agree with the appellant that the word includes the wakif also. Clause (d) really comes as a corollary to Clause (b). In Clause (b) certain qualifications are laid down and any one amongst the descendants of Madassar who has these qualifications would be eligible for appointment as Mutwalli. Clause (d) provides how appointment is to be made, when more than one person having the requisite qualifications are available. We think therefore that the expression 'Mutwalli' in Clause (d) refers to Madassar, who alone was declared to be Mutwalli by the wakif. The last portion of Clause (e) introduces another obscure provision in the document. Obviously, it contemplates a state of things when there would be no descendants either male or female either of the settler or of Madassar alive. In such contingency the Kazi is to make the appointment, but the appointment has got to be made from among the blood relations and kinsmen of the wakif probably, meaning thereby his collaterals and distant kindred; it is conceded by Mr. Gupta that it would be very difficult to reconcile this provision with that contained in Clause (c). Clause (c) also speaks of blood relations and expressly forbids interference by a Judge in the matter of appointment of a Mutwalli when blood relations are in existence. We may have to advert to this portion of Clause (e) later on. The most important question which we have to consider is whether the appellant is right in his contention that the daughter's descendants of Madassar are excluded from the line of devolution of Mutwalliship as laid down in Clause (a) mentioned above. To decide this point, it would be necessary first of all to certain what is the exact meaning of the word 'farzand" as used in the clause. We have to consider then how far the original meaning of the word is extended by reason of the expression be farzand", or the addition, of words like "naslan baad naslin" and "batnan baad batmn." "Farzand" is a Persian word of which the Arabian synonym is "Awlad" (Bailee I, 570-72). In Wilson's Glossary (vide Wilson, page 157) the neaning of "farzand" is said to be offspring, progeny, a son or daughter, child or children, in legal language the word "farzand" means lenial decendants in the male line, females and their posterity are excluded except the person's own laughter. According to the rules of interpretation laid down by the Mahomedan Jurists, if a man creates a wakf simply for his 'walad' or children, then the children of his loins both male and female would take the produce. If there is no child of his loins, but there is a child of his son the produce is to go to the son's child, but the child of a daughter is not included according to the approved doctrine: (Fatwa Alamgiri. vol. II, page 474, Ameer Ali, vol. I, p. 354). The reason is that "walad" means a man's own children; son's children according to custom are his own children but not daughters' children as they belong to a different family (vide Raddul Muktor, vol. III, p. 672). There is a difference of opinion among Mahomedan Jurists regarding exclusion of daughter's children when more than one generation is mentioned (vide Ameer Ali, vol.I,p. 355). According to the view expressed in Fatwa Alamgiri however when the appropriation is for the benefit of the children and the children's children, the children of daughters are not included. In the Khizanut-ool-Mooftieen it is said "If a man appropriates an estate to be enjoyed by his descendams, in perpetuity so long as the race continues, and he leaves children and children of his male children, it will be divided among them equally, and no preference will be shown to the males over the female. But the children of females are not reckonedamong the lineal descendants according to the approved doctrine... because the descendants of a man's daughters are not the lineal descendants of that man, lineage being derived from the father and not from the mother." Quoted in Macnaughten's Principles and Precedent of Mahomedan Law (p. 332). In Macnaughten's Principles and Precedent of Mahomedan Law a case is discussed where the grant of the office of a Mutwalli was made to one Md. Rufeeq, and declared heritable by his Furzumdam or offspring. It was held that the grandson in the female line of the grandson in the male line cannot be enumerated among the "furzundam" or offspring or lineal descendants; because when these terms are applied relating to a person, they mean only those who are the lineal descendants of that person or his descendants in the male line how low soever but a grandson in the female line takes his descent from his own father and not from Md. Rufeeq (vide Macnaughten, p. 332). In Hja-on-nissa v. Md. Moful-kir-ol-Islam 1 S.D.A. 106, it was definitely held that the Arabic plural "aulad" and its Persian equivalent "farzandam" are understood to include both sons and daughters and all descendants in the male line but not descendants in the female line (see in this connection Tyabji, Section 511 (1-a), Bailee I, page 568 (para. 2 (577)). There is also decided authority which holds that when the word "aulad" is repeated and the expression used is ''aulad-dar-aulad" even then the daughter's descendants are not included: Abdul Ganee Kasam v. Hussein Miya ('73) 10 Bom, H.C.R. 7. It can safely be held therefore that the preponderance of authorities is clearly in favour of the view that the expression "farzand" or "aulad' would not ordinarily include the descendants of female children, though the daughters themselves would be included in it. The law on this point is thus summed up in R. Wilson's Digest of Anglo-Mahomedan Law:

Had the intention been to limit the class of descendants exclusively to persons claiming through males it is difficult to suppose that the general expression 'aulad va ahfad' would have been used and not 'aulad dar aulad' which admittedly would include them.

In the case before us we have neither the word 'ahfad' nor any expression like Nasl or Zariat. Mr. Gupta lays stress on the word ba farzand, and also on the expression 'naslan-baad naslin' and batnan baad batnin, coming after 'farzandam.' The preposition'ba' means'to' 'with' or 'in' livide Richardson, Persian Arabic and English (Dictionary, p. 224). 'Ba Farzandam' literally means 'with children' and when these words are added to a grant, and occur after the name of the grantee they are construed to be words of limitation, and indicate that the grantee gets an absolute or heritable estate and not a mere estate for life. Thug if an estate is granted to A 'with children' A gets an absolute estate and the children acquire no interest by the grant (Bailee I, p. 580-81, Edn. 2). This proposition however does not really assist Mr. Gupta's client. In the first place there is no transfer of secular interest in any property in the present case, but mere creation of a religious office and no question of absolute or heritable right arises with regard to the office of a mutawalli under Mahomedan law. But what is more important is that the grant is not made here to a particular person and his children. All that the deed provides is that mutawalliship would devolve upon the children of the son (i.e. Madassar). "Ba" is here used in the sense of "to" or "upon" and that is exactly how it has been translated by the defendants' translator.

8. The expressions 'naslan baad naslin' and batnan baad batnin both of which occur in the wakfnama, are really terms of art, which subject to surrounding circumstances and context, ordinarily confer absolute interests (Tyabji-Mahomedan Law, Section 511 (5A). Whenever a grant is made to a person with these words added to it, it may be presumed that the grantee takes an absolute or heritable estate. But as said above there is vital difference between the grant of a secular estate and the creation of a religious office, and no question of an absolute or heritable right could possibly arise in regard to the office of the mutawalli of a wakf. Mr. Gupta lays considerable stress upon a decision of the Madras High Court which is to be found reported in Mahomed Ghouse v. Sayabiran Sahib ('35) 22 A.I.R. 1935 Mad. 638. We think that the learned Judges rightly pointed out in that case that although in deeds relating to private property the words "naslan baad naslin" & would be construed as words of limitation and would confer an absolute estate in the grantee, the same consequences would not follow when the document lays down the line of devolution for a religious office. But we cannot agree with the learned Judges that these words literally construed would lead to the result that persons claiming through females would also be included. Of the three decisions referred to in the judgment, two really lay down the opposite view whereas in the decision of the Allahabad High Court upon which the learned Judges purported to rely, this question was neither raised nor decided. We think that the proper significance of the expressions "naslan baad naslin" and "batnan baad batnin" is what was indicated by the Judicial Committee in their recent pronouncement in Saadat Kamel Hanum v. Attorney-General for Palestine 26 A.I.R. 1939 P.C. 185. The case came from Palestine and arose out of a suit to recover property of a wakf for the benefit of all interested. The questioner consideration was one of limitation which was to be decided under Art, 1661 of the Ottoman Civil Code; but in the course of the judgment Sir George Rankin discussed the meaning of the expression "generation after generation" when it is used in deeds creating wakf. The real object, his Lordship pointed out, of introducing these expressions in deeds of wakf is to prevent nearer and more remote descendants from being treated alike. As has been stated in the Fatwa Alamgiri (Crl. II p. 474):