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TMI Blog1998 (8) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... he jewellery after her marriage or on completing the age of 30 years, whichever was earlier. She was allowed to wear the jewellery and ornaments during her lifetime and after her death the trustees were directed to sell the ornaments and invest the sale proceeds, thus turning them into an income yielding investment. A further direction was given to the trustees to pay the income to the children of Oalia Kulsum or remoter issue of Prince Muazzam Jah Bahadur from generation to generation in the ratio of two shares for male and one share for female heirs. In the absence of the contingencies mentioned above, the income was directed to be paid to remoter issues of Prince Muazzam Jah Bahadur from generation to generation in the ratio of two shares for male and one share for female. On the death of the last survivor of the persons entitled to the net income of the fund, the income was directed to be utilised for the benefit of the holy shrine at Khum in Iran. Thus, the trust was in the nature of a wakf-alal-aulad. In fact the recital in the trust deed is to the same effect: "And whereas out of natural love and affection which the settlor bears towards his relatives hereinafter mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeds of trust are void ab initio since they violate ss. 13 and 14 of the Transfer of Property Act, particularly the rule against Perpetuity incorporated there. The appellant, however, relies upon s. 2 of the Transfer of Property Act under which it is provided, inter alia, that nothing in the second chapter of this Act shall be deemed to affect any rule of Mohammedan law. Sec. 13 and 14 relied upon by the Department, form a part of the second chapter of the Transfer of Property Act. The appellant submits that under Mohammedan law it is permissible to create a wakf -alal-aulad under which a trust in perpetuity can be created for the maintenance and support wholly or partially, of the family of the settlor, his children or descendants from generation to generation and thereafter for the benefit of poor or for any other purpose recognised by Mohammedan law as a religious, pious or charitable purpose of a permanent character. The provisions of Chapter 2 of the Transfer of Property Act which inter alia embody the rule against perpetuity applicable to transfers inter vivos, do not apply to such trusts. 6. Syed Ameer Ali in his book on Mohammedan Law, Fourth Edn., Vol. 1, p. 284 stated as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other hand, held that whether the poor were named or not, or whether the word "sadakah" was used or not, the word "wakf" implied perpetuity, and, therefore, unless some other object was named, on failure of the wakif's posterity, the income would be applied for the poor. There is no question about the validity of the wakf; the mention of the poor does not make the wakf per se more or less valid; it only ensures perpetuity insisted upon in the law. Asaf A.A. Fyzee in his book "Outlines of Mohammedan Law", Fourth Edn. at p. 303 states that according to the ancient texts, wakfs for the support of a man's descendants and family were considered to be proper and lawful. He says, "The Prophet is reported to have said that 'When a Muslim bestows on his family and kindred, hoping for reward in the next world, it becomes alms, although he has not given to the poor, but to his family and children'. What in the estimation of the English lawyers would be a pernicious perpetuity, calculated to aggrandize the family of the founder, is, according to the shariat, the best of charities". The position in Islamic law is summed up by Fyzee at page 303 by quoting the words of Ameer Ali: "From the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding the validity of wakfs -alal-aulad, the Privy Council pronounced in the case of Abul Fata Mohammad Ishak that such a wakf would be invalid, even if there is an express ultimate dedication to the poor, because the bequest to "charity" is too remote. The decision can, at best, be held as interpreting Mohammedan law as interpreted in British India of the time, as the case arose in British India. Not surprisingly, it led to large scale protests. On account of large scale protests in British India against the decision, the Mussalman Wakf Validating Act of 1913 was enacted to validate such wakfs. This Act cannot be looked upon as laying down any new principle of Mohammedan law. As Fyzee has put itthe Act purported to restore the law of the Shariat in India and to overrule the law as laid down by the Privy Council. This Act was given retrospective effect by the Mussalman Wakf Validation Act of 1930. Both the Acts applied to British India. After the Constitution came into force, the operation of the Validation Act of 1913 was, therefore, by amendment, excluded from Part-B States i.e. territories which were originally native States or outside British India. After the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mohammedan law in as much as H.E.H. the Nizam in the Charter granted to the High Court directed that in cases where the parties were Muslims the case would be governed by Sharai-Shariff. The High Court held the wakf to be invalid under Mohammedan law. Of course, in the case before it, both under the law as declared by the Privy Council as also the dictum of Imam Mohammad (said to be no different from that of Abu Yusuf on this issue) the wakf was invalid. But the High Court, in the light of its Charter also took the assistance of Mohammedan law as laid down by Islamic authorities in deciding the issue. In the light of the principles of Mohammedan law as set out earlier, the two trusts created in 1953 in the present case are valid wakfs. The wakif-settlor made a dedication in perpetuity of the subject-matter of these trusts for purposes which are considered pious under Islamic law. The properties, therefore, ceased to be the properties of the settlor on the creation of the wakfs in 1953. When the settlor died in 1967, they could not form a part of his estate-the settlor having divested himself of these properties fourteen years prior to his death. The appellant has also poin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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