The article is written by Soumya Lenka. The article concerns the background of the case, its pertinent facts, arguments on both sides and the court’s reasoning while giving the verdict. The case is situated in the pre-independence era and is an appeal arising out of an application under Section 53 of the Provincial Insolvency Act, 1920. The case is an interplay between what constitutes of a voluntary transfer, the validity of a waqfnama, and the annulment of the said waqfnama on the grounds envisaged under Section 53 of the  Provincial Insolvency Act, 1920.

Introduction

The case is situated in the year 1940. It concerns itself with a peculiar bequeathment of the property by one Nawab Ali via a waqfnama to his son Altaf Ali and the whole conundrum is created by such a complex disposition by the Nawab in the name of his son. The case sheds light on the colonial statute,  The Provincial Insolvency Act,1920 and the right of the receiver to take possession of the property in the case. In this case, the holder of such property declares himself insolvent under the Act. 

The article presents a precise background of what led to the filing of the civil appeal at the Calcutta High Court, the arguments on both sides regarding the validity of a  waqfnama executed by the appellant’s father and the applicability of Section 53 of the then Provincial Insolvency Act, 1920 to the impugned waqf property. The Calcutta High Court has dealt with this case in a very peculiar manner, upholding the decision of the lower court yet disagreeing with the rationale or reasoning of the lower court. The article delves deeper into the concepts of waqf, gift and voluntary disposition at large and the subtle differences among the mentioned kinds of bequeathment of properties.

Details of the case

• Case name: Md. Ali vs. Dinesh Chandra Roy Choudhury and Ors.
• Petitioners: Mahammed Ali, Altaf Ali, Commissioner of the waqf property
• Respondents: Dinesh Chandra
• Case type: Civil Appeal 
• Court: Calcutta High Court
• Bench: Hon’ble Justice Sen and Justice Henderson
• Date of judgement: 22.04.1940
• Citation: AIR 1940 CAL 417

Facts of the case

The backdrop of the case dates back to the year 1911. In the year 1911, one Nawab Bahadur Nawab Ali Choudhuri settled all his property under the then Bengal Settled Estates Act, 1904. Under the said settlement, he made himself the first tenant of his property, which  implied that he would have the complete right over the property during his lifetime. Further, he made his eldest son, Altaf Ali, the second tenant, who was supposed to have the right to possession and enjoyment of the property after his father’s death. Altaf Ali’s eldest son, Mr. Mahammad Ali, was to be made the third tenant of the settled property. 

Subsequently, in 1927, things took a turn when Nawab Ali Choudhuri wanted to revoke his settlement under the Bengal Settled Estates Act, 1904, which he made in 1911 with pursuit of executing a waqfnama in its place. On the 24th of September 1927, he applied to revoke the said settlement under Section 24 of the Bengal Settled Estates Act, 1904. As was anticipated, his eldest son, who was the second tenant as per the previous settlement, was aggrieved by this action of his father and opposed the same. To this, a close friend of Nawab Choudhuri’s family, Mr. Provash Chander Mitter, intervened to mediate and settle the brewing dispute and tussle between the father and the son. Later on, the Nawab and his son came to a settlement on certain terms and conditions.

On 20th of October, 1928, the terms and conditions so decided between the parties were made into writing and recorded in a document. It was called a memorandum of settlement and primarily Altaf Ali agreed that the settlement executed earlier by his father can be revoked and in its place, his father could execute a waqfnama. One of the most important terms was that Nawab Choudhuri was free to execute all of his property as waqf property except roughly one third of his property which would be executed solely on the name of Altaf Ali. Nawab Ali was to hold possession of the one-third property, solely bequeathed in the name of Altaf until his death. But he only had the possession and enjoyment of the said property and was not the absolute owner. After Nawab’s death, Altaf was entitled to take possession of the same as an absolute owner.

He was restricted from alienating it in any way. Further, the additional terms and conditions specified that the waqf property would come into the possession of Altaf Ali after three years from his father’s death. Additionally, Nawab agreed to set aside an income of Rs. 500 out of his estate for specific charities, the administration of which would be entrusted to Altaf Ali. On  the 29th of October 1928, both parties filed a joint petition in the district court to revoke the earlier settlement by declaring that they had come into an agreement to quash the same under the Bengal Settled Estates Act, 1904. 

Following this, Nawab Choudhuri and his son Altaf Ali filed an application to the government of the then Colonial province of West Bengal to set aside the earlier settled property under the Settlement Act. The application stated that the parties have mutually arrived at a consensus that the same should be revoked. It was also stated that within one month, the heirs, executors, administrators and other associated parties to the said memorandum of compromise will comply with the said mutual compromise. It was also agreed that in case, any of the parties do not agree to the agreement in the future and do not comply with the same, the court shall intervene and enforce the terms of the agreement. 

Consequent to such joint declaration of Nawab and his son, Nawab executed a Waqfnama on 5th April, 1929, with regard to the property excluding the one-third property solely to be bequeathed to Altaf Ali as per the agreed terms and conditions. As per the recital of the waqfnama, it was clearly stated that the nature of the waqf that was created by negotiation between Nawab and Altaf Ali was primarily for the maintenance of Nawab Choudhuri and Altaf Ali during their subsistence and after his demise, for the benefit and smooth subsistence of his family and relatives. This kind of waqf is known as waqf-alal-aulad, one of the various forms of waqf as per the Mohammedan law.

The recital of the waqf clearly states that after the death of Nawab Choidhury, his eldest son Altaf Ali would be the first Mutawali of the property and after him any one of the sons that he would appoint will be the succeeding Mutawali. After the smooth execution of the waqfnama, it was sent for signature to Mr. Altaf Ali but he refused to sign the document. Thereafter, Mr. Provash Mitter, the mediator, engaged himself to settle the dispute yet again and, after due consideration to the objections of Altaf Ali, altered the waqfnama and made pertinent changes to the same. But even after making such changes, Mr. Altaf Ali refused to sign it. Due to this delay, Nawab Ali went on to execute it without waiting for Altaf’s consent as per the terms and conditions of the memorandum. 

On 16th of April 1929, a few days after voluntarily executing the said waqf deed, Nawab Bahadur Choudhury died. Consequently, the heirs of Nawab Choudhury executed releases in favour of Mr. Altaf Ali with regard to the exclusive one-third property allotted to him. Subsequently, no major events purporting to the impugned case appear to have taken place after the passage of Nawab Ali. Altaf Ali enjoyed his exclusive one-third property allotted to him and he was also the mutawalli of the said waqf property executed by Nawab Ali. 

The next major event or the most pertinent event on which the whole case hovers, occurred on the 27th of August 1934. On this day, Mr. Altaf Ali executed a deed in the favour of his son Mahammed Ali as the mutawalli of the waqf property, relinquishing himself from the chair of mutawalli. On the next day, Altaf Ali applied to the court to be declared insolvent according to the said provisions of the Provincial Insolvency Act, 1920. In accordance with the Act, after due consideration of the material facts and circumstances, he was adjudged insolvent on 8th of April, 1935. 

After his adjudication as insolvent, the official receiver applied for the setting aside of the waqf as per  Section 53 of the Insolvency Act, 1920, which clearly postulates that in a case of voluntary disposition of property by a person and within two years after the date of such disposition or transfer, the said transferor is declared insolvent under the concerning provisions of the act, shall be annulled if the receiver applies in court for the annulment of the said transfer. The application was filed before the learned District Court challenging the application of the receiver by the aggrieved parties, namely the Mutawalii Mohammed Ali, his wife and the commissioner of the said waqf. After careful consideration of the application of the receiver, the District Court of the 24 Parganas held that the said disposition of Altaf Ali making Mahammed Ali as the Mutawali was a voluntary one and was not made in good faith. Thus, as the disposition is governed by the provisions of the Provincial Insolvency Act, 1920, the waqf stands invalid. 

Aggrieved by this, an appeal was filed by the Mahammed Ali in the learned Calcutta High Court to set aside the order of the learned district judge of the 24 Parganas district, validating the waqf deed. It was prayed that the waqf deed making Mahammed Ali as the Mutawali is in accordance with the earlier memorandum agreed upon between Altaf Ali and Nawab Ali and was made in good faith. 

Issues raised 

• Whether the learned District Court erred in law in giving the verdict in the favour of the official receiver, annulling the impugned waqfnama?
• Was the memorandum of agreement between Nawab Ali and his son Altaf Ali a gift?
• Was the waqfnama executed by Nawab Ali in accordance with the memorandum?
• Was the wakf executed by Altaf Ali valid?
• Was the disposition of the waqf property in the name of Mahammed Ali a voluntary one and was made in good faith? 
• Was the insolvency application filed by Altaf Ali made in good faith?

Arguments of the parties

Appellant

The appellant, represented by Ld. Counsel Mr. Gupta, contended that the Ld. District Court has erred in holding that the waqfnama was a voluntary disposition in the name of Mahammed Ali by his father. Hence, it was contended that the Ld. District Court has erred in adjudicating the same and the said holding is devoid of any merits and is liable to be set aside. Mr. Gupta submitted that the Ld. District Judge has committed a gross error by treating the memorandum between Altaf Ali and his father as a testamentary disposition (will or codicil). He contended that it is impossible to treat the said memorandum as a will. To corroborate his contention, he submitted that a will always contains terms and conditions that are irrevocable but in the impugned memorandum, the postulations were based on an agreement between Mr. Altaf Ali and Nawab Bahadur that nevertheless stands irrevocable.

Further, it was contended by the appellant that the intention behind an act is to be considered before coming to a conclusion as to its purpose and nature. In the impugned case, the real intention behind executing the waqfnama and the memorandum is best known to the legator and the legatee, i.e., the late Nawab Bahadur and his son Altaf Ali and the same can be deduced from the recitals of the said memorandum and the waqfnama. It is quite clear that the said memorandum was not a testamentary disposition and rather a process as specified under the postulations of the parent memorandum agreement entered upon between Mohammed Ali’s father, Altaf Ali and his grandfather, Nawab Choudhury. Altaf Ali was supposed to transfer the position of Mutawali of the waqf to any of his sons under the earlier agreement. In accordance with this, he appointed his eldest son, Mohammed Ali, as the mutawali. 

Addressing the issues regarding the validity of the waqfnama executed by Mr Altaf Ali, Ld Counsel Gupta further submits that there is no doubt that a valid waqf has not been created by Mr Altaf Ali as there is no specification whether the disposition of property is for religious, pious or charitable purposes. A waqf is deemed to be created for religious and charitable purposes but, in the present case, Mr. Ataf Ali executed the waqf for the purpose of maintaining his family. Ld. Counsel admits very frankly that a valid wakf has not been created by Altaf Ali but at the same time, he argues that the validity of the waqf has nothing to do with the impugned case. He contends that the only thing that the State and the receiver should be concerned with is whether there has been voluntary disposition of the property from Altaf Ali to his son or not. In this case, it is for the relatives and the stakeholders of the said waqf to compel Mr. Altaf Ali to execute a valid waqf. Altaf Ali is undisputedly the owner of the property by virtue of the memorandum signed between him and his father and the subsequent waqfnama and hence, he has bequeathed the property to Mahammed Ali in accordance with the said agreement. Hence, the said disposition was a compulsion rather than a voluntary one, making the judgement passed by the Ld. District Court arbitrary and devoid of any merits. 

Respondent

Ld. Counsel Brahma appeared on behalf of the state, and the official receiver submitted that the Ld. Trial Court has not erred in annuling the waqafnama executed by Altaf Ali. He submitted that the memorandum of agreement between Altaf Ai and his father, Nawab Ali, was not merely a memo but a testamentary bequest of property, i.e., a will. It was emphasised by the respondents that on a strict perusal of the points of negotiation and compromise between Nawab Ali and his son Altaf, it is quite pertinent that there was no actual waqf that was created but was rather an arrangement for the maintenance of his family members and relatives. There is clearly no indication that the bequest was for religious or charitable purposes. 

The Ld. Counsel further submitted that the memorandum of agreement between the two parties needs to be conceived as a conditional bequest between the father and the son and nothing more. He emphasised on the framework of Mohammedan law that, under a conditional transfer of a property, the transferor and transferee share a peculiar relation. Even if it is a conditional disposition or bequeathment of property, the transferee gets the property absolutely and is the absolute owner of the property vested with unrestrained powers of possession and transfer.

Hence, Altaf Ali got the property without any obligation to create a waqf, as the primary waqfnama is not legally valid from the lens of the Mohammedan law. Further, he contended that the transfer of property by Altaf Ali to his son was a voluntary transfer and is subject to be governed by Section 53 of the Provincial Insolvency Act, 1920. He further stated that being a voluntary transfer, the waqf was annulled by the Ld. District Court on an application by the official receiver and hence the direction of the trial court is legally valid.

It was submitted by the respondents that another construction that is quite evident from the nature of the memorandum between Altaf Ali and his father is that the bequest can be treated as a gift. It was contended that it was quite pertinent that there was no consideration whatsoever as per the agreement, which said that Altaf Ali had to pay his father. Going by that analogy, it would not be legal to declare the said agreement and the waqfnama as a gift, if not a will. Relying on this analogy, he further submitted that if it was a gift, it is certainly a voluntary transfer. Further, it was submitted that anything that stems from an arbitrary action is in itself arbitrary. Hence, in the impugned case, it was quite evident that the transfer between Altaf Ali and his father was a gift executed as a waqf. Further, believing it a waqf estate, the same was transferred by Altaf Ali to his son Mahammed Ali. Hence, drawing a nexus between the two events, the respondents submitted that the very act of transferring the property by Altaf Ali to his son Mahammed Ali stems from the earlier bequest between Ataf Ali and Nawab Ali which was an arbitrary action. Hence, the present waqf also stands invalid.

Laws involved in Mahammad Ali vs. Dinesh Chandra Roy Choudhury (1940)

Section 3 of the Bengal Settled Estates Act, 1904   

The Colonial Act provided for the settlement of estates in the then provincial state of West Bengal. Section 3 of the said Act provided explicitly for the settlement of personal property of a resident of West Bengal. It is via this provision that Mr. Nawab Ali Choudhury settled all his property in the year 1911. The Bengal Settled Estates Act, 1904 stands revoked as of now. 

Section 24 of the Bengal Settled Estates Act, 1904 

This impugned provision provided for the revocation of settlement. By invoking this provision, Mr Nawab Ali applied for the revocation of the prior settlement of his property that he did in 1911. The case stems from this revocation of settlement and the subsequent memorandum of agreement signed between Nawab Ali Choudhury and his son, Altaf Ali. 

Section 3 of the Wakf Validating Act, 1913

This provision of the Mussalman Wakf Validating Act, 1913, provides that to constitute a valid waqf, it is necessary that the ultimate benefit must go to religious, pious or charitable purposes. It nevertheless allows that the waqfnama can be executed for the maintenance of one’s family members and relatives but makes it mandatory that for a waqf to be valid, it has to confer the maximum benefit of the waqf estate to the growth of religion, for the needy and poor people and for other philanthropic purposes at large. In the impugned case, the whole factum deals with the validity of the waqf executed by Altaf Ali and hence Section 3 of the Wakf Validating Act plays the central role in the landmark judgement.

Section 53 of the Provincial Insolvency Act, 1920

Section 53 of the Provincial Insolvency Act, 1920 postulates that any transfer of property not being a transfer made before and in consideration of marriage or made in favour of a purchaser or encumbrances in good faith and for valuable consideration shall, if the transferor is adjudged insolvent within two years after the date of the transfer, be voidable as against the receiver and may be annulled by the Court. In the impugned case, the respondent, i.e., the state, contended that the transfer of the property by Altaf Ali was not a valid waqf and rather a voluntary disposition and hence is liable to be annulled as per Section 53 of the Provincial Insolvency Act, 1920. In the case, it was held that the sole purpose for which Altaf Ali executed the waqfnama was for the maintenance of his family members and relatives and thus, the waqf is invalid. 

Relevant Judgments referred to in the case

Yusuf Ali vs. Collector of Tipperah (1885) 

This case has been relied upon by the Calcutta High Court Bench while adjudicating whether the memorandum of agreement signed between Nawab Ali Choudhury and his son Altaf Ali is a gift or not. It was contended by Ld. Counsel Brahma, who appeared on behalf of the respondents, that the agreement was a gift as there was no consideration. Relying on this important precedent of the Calcutta High Court, the court first went into examining what constitutes a gift in Mohammedan law. In this case, the Calcutta High Court held that in Mohammedan law, in case of a bequeathment or voluntary disposition in the form of a gift, it is important that the transfer of possession must be immediate to such execution of the gift. But as in the impugned case, as per the memorandum of agreement, Nawab Ali explicitly stated that he shall have the possession till his death and only after his demise, his son can have the possession; the same is not a gift. 

Tahiruddin Ahmad vs. Masihuddin Ahmad (1933) 

The Bench relied on this decision of the Calcutta High Court while adjudicating on the validity of the waqf executed by Altaf Ali in favour of his son Mahammed Ali. The case states that in Mohammedan law, a valid waqf is the one where the ultimate benefit of the wakf estate goes to the needy and the poor for religious or pious purposes. Relying on this principle laid down in this landmark verdict, the Calcutta High Court Bench held that the ultimate benefit in the wakf of Altaf Ali is conferred on the family members and his relatives, while only trivial sums of money were granted for philanthropic purposes within the meaning of the Wakf Validating Act, 1913. So, the Calcutta High Court, relying on this case, held in the present case that the waqf is not a valid one and is rather a voluntary transfer of property within the meaning of the Provincial Insolvency Act, 1920. Hence, it held that the same is liable to be set aside.

Judgement in Mahammad Ali vs. Dinesh Chandra Roy Choudhury (1940)

The two judges bench, consisting of Justice Sen and Justice Henderson, held that the Ld. District Court of the 24 Parganas has erred in holding the memorandum of agreement between the father and the son as a will. It was further held that the waqfnama executed by Altaf Ali in the name of his son Mahammed Ali making him Mutawali was not a valid waqf and rather a voluntary disposition of property. It further held that as Altaf Ali declared himself insolvent within a few days after the bequest, the said bequest will be a nullity under Section 53 of the Provincial Insolvency Act, 1920, and hence the appeal is devoid of any merits. 

Rationale behind the Judgement

Whether the Ld. District Court was prudent enough in holding the memorandum of agreement between Nawab Ali Coudhury and his son Altaf Ali as a will?

The Court, while adjudicating the impugned case, first came to the issue of whether the memorandum of agreement between Nawab Ali and Altaf Ali was a will or not. The Ld. District Court held that the memorandum of agreement signed between Altaf Ali and his father was a will. After analysing the facts and circumstances that led to the signing of the memorandum between the parties, the Ld. Bench held that the Ld. District Court has committed gross neglect and error in holding it as a will. It held that before adjudicating on whether it is a will or not, the court did not take into account the material differentiation between an agreement and a will, which seemed to be the pertinent factor governing the issue. 

The Court observed that the memorandum signed between Altaf Ali and his father (which resembles that of a contract in the present case) is an agreement that is always entered into by two parties with mutual consent and is hence enforceable, whereas, on the other hand, a will or a testamentary disposition is something that gets executed unilaterally by the testator and is never an outcome of a prior negotiation or  agreement between the testator and the legatee. In the impugned case, Nawab Ali and his son Altaf Ali have mutually executed the agreement, as per the definition of a will, whereas a testator unilaterally executes a will. But here, the testator and the legatee have mutually executed the will; if at all, the same is to be considered a will. Hence, in the impugned case, it is quite evident that there was a memorandum of agreement as a result of a series of negotiations and compromises between both parties. Hence, there is certainly no chance that the same has any resemblance with that of a will. In precise terms, it was held that a memorandum of agreement, much like a binding contract, was thus executed by Nawab Ali Choudhury with his son Altaf Ali Choudhury mutually and hence, cannot be adjudged as a will.  

Further, the Ld. High Court of Calcutta opined that in case of any legal document, its language is the sole determiner of its nature and the purpose for its execution. In the impugned memorandum, the language is quite clear and states that the document is an agreement between the two parties as to how the waqfnama is to be executed. Furthermore, it is clear that a compromise has been reached between the father and the son. It was agreed that Altaf Ali will allow his father to execute a waqfnama and in consideration, he will be named as the mutawali after his father’s demise. It was further agreed upon that Altaf Ali will get an exclusive one-third share of the said property. There are no ambiguous phrases or sentences whatsoever in the scheme of the document, which creates even a bit of doubt that the document is a will. It was further emphasised by Justice Sen that the meaning of a legal engrossment is to be deduced from the meaning of the words and phrases used in it. Further, to give it an interpretation beyond the scope of its linguistic containment would dehors its very meaning and will further frustrate the true purpose of a legal document. 

Are the terms and conditions specified in the memorandum of agreement vague and ambiguous?

Adjudicating on the settlement that took place under the Bengal Settled Estates Act, 1904, the Ld. court held that the exercise was clear and afterwards the revocation was also under the contours of law and that there cannot be any question about its legality. The court held that Nawab Bahadur revoked the said settlement because of a change in his mind that he wants to create a waqf of two thirds of his property. Further after the mutual agreement between father and son, he executed the waqfnama. The court held that the terms and conditions that were entered into by both parties were like a contract and were nevertheless irrevocable. The Bench yet again refuted the holding of the Ld. District Court that the terms and conditions were vague and revocable and held that there are no ambiguous or vague terms and postulations in the memorandum. Hence, the Bench held that the terms contained therein are irrevocable, thereby binding both  parties to them. 

Was the memorandum of agreement between Nawab Ali and his son Altaf Ali a gift?

The court refuted the allegation of the respondent that the memorandum between Altaf and his father was a gift, if not a will. The Bench held that the main characteristic of a gift is that it must not be accompanied by any kind of consideration but that is not the scenario in the impugned case. The agreement is no less of a contract in which Altaf Ali agrees and lets his father Nawab Choudhury execute a waqfnama with a reciprocal consideration that he will be having one-third property of his father as his exclusive property after his father’s demise. It further held that if at all a strict scrutiny of the situation is considered from the lens of Mohammedan law, it is evident that a gift in futuro or a gift [reliance was placed on Yusuf Ali vs. Collector of Tipperah (1882)], which is to be executed in the future, is void. Relying on this, the court held that, as in the impugned case, the property was to get transferred to Altaf Ali only after his father’s demise, this above-mentioned essential ingredient doesn’t get satisfied. 

Coming to the validity of the waqf executed by Altaf Ali in the name of his son Mahammed Ali, the court held that the waqf in Mohammedan law has a definite meaning and in order to adjudicate on what constitutes a valid waqf, it is important to consider the ingredients postulated under Mohammedan law. A waqf must be executed for religious, pious or charitable purposes. Further, there is a wide plethora of activities that constitute religious and charitable domain; hence, in addition to the basic purpose, the Mohammedan law postulates that in such execution, the executor has to specify the exact purposes for which it is being executed and in failure of that, a waqf will be deemed nullity for uncertainty. Further, the court held that the memorandum of agreement entered into between Altaf Ali and his father was the primary contract for the waqfnama. The contract has no stipulations therein as to the true purpose of the waqf. But, even though there has been no purpose or object specified in the contract, it does not in any way affect the validity of the waqfnama and the executed waqf. The court held that the initial waqfnama and the waqf created were thus valid, as the sole purpose for which it was created was for religious and charitable purposes and there can be no dispute to that fact. 

Was the Wakf executed by Altaf Ali valid?

While addressing the issue of the validity of the waqf created by Altaf Ali, the court first went on to examine the purpose behind the waqf. It is evident that Altaf Ali, by the waqfnama, made his eldest son, the mutawalli of the property and the deed provides that some amount out of the waqf would be used for administration of four religious endowments, namely the Imam of the Bogra Jumma Masjid, to a high school, a girl’s school and a Madrasa. He also made provision for two gold medals to be given to these institutions in the waqf nama. But on the other hand, most of the income from the waqf property was to be divided among the male senior members of his family and, in case of their death, the eldest male issue thereafter. The waqf nama further postulates that in case the senior members do not have any male issues, the income so allotted to that member will revert back to the waqf estate and will be appropriated by the mutawalli. 

Now, in accordance with the Section 3 of the Mussalman Wakf Validating Act, 1913, a Muslim person has the right to create a waqf and in the waqfnama, he can provide provisions for the maintenance and support of himself, his family members and relatives. At the same time, the ultimate benefit or income of the waqf estate must be conferred on or reserved for the poor, i.e., reserved for the religious and charitable purposes. The Court also relied on the case of Tahiruddin Ahmad vs. Masihuddin Ahmad (1993), where it was held that for a waqf to be valid, the ultimate benefit must go to religious, pious or charitable purposes. Hence, considering the postulations of the Waqf Validating Act, 1913 and Tahiruddin case, the Bench held that as the sole purpose of charity is not met in the waqf nama executed by Altaf Ali, the said waqf is not valid and rather a simple voluntary disposition of property for the benefit of his family members.

The Court held that as there is a voluntary transfer of property and the executor has declared himself insolvent as per the Insolvency Act, the same is liable to be governed by Section 53 of the Provincial Insolvency Act, 1920 and in accordance with  Section 53 of the Provincial Insolvency Act, 1920, the court declared the waqf as nullity upholding the decision of the Ld. district court. 

The Court while addressing the contention of the respondent that the waqf was also executed for malafide purposes. It held that the bequethnent was not in good faith, as the contentious application for declaring Altaf Ali as insolvent was filed by Altaf Ali only a day after the execution of the waqfnama. Hence, the Court after a strict perusal of the facts and circumstances of the case, held that the waqf could not have been executed in good faith. The Court held that it would be imprudent to believe that a person can go insolvent within a day after bequeathing his property and such an act seems malafide on the face of it.  

Analysis of the case 

This case sheds light on what constitutes a valid waqf. In the concerned case, while adjudicating on the validity of the waqf, the Calcutta High Court relied on the scheme of the Wakf Validating Act, 1913, and found out that the waqf was not a valid one. This makes it clear what a valid waqf constitutes. The Court relies on Section 3 of the Mussalman Wakf Validating Act, 1913 for the same. It can be deduced that a waqf executed only for the benefit of the family members without any conferment of the ultimate benefit of the waqf estate for the religious or charitable purposes is not a valid one.

Further, the Court held that, as it was not a valid waqf, it was a voluntary disposition. Hence, it is governed by the scheme of the Provincial Insolvency Act, 1920. The Court was quite rational while refuting and setting aside the rationale behind the decision of the Ld. District Court. It held that the agreement between Altaf Ali and his father, Nawab Ali, was not a will but rather a contract with mandatory postulations contained within it. Here, another interesting and rather peculiar facet of judicial decision making gets highlighted. The Higher Court has the sovereignty to uphold the decision of the lower court but, at the same time, can refute the rationale on which the lower court gave its verdict. 

Conclusion 

The case is a testament regarding how the colonial laws were made to further the motive of the colonial government to grab the property of the countrymen in the deception of law. Further, the case sheds light on what constitutes a valid waqf as per the Muslim personal law jurisprudence. It also makes a clear statement that deception and nefarious intention behind an action in the garb of a waqfnama defeat the purpose of the waqf, diluting its character into a voluntary disposition. On a concluding note, the case establishes the grundnorm rule of statutory interpretation that the intention and purpose of a statute must be interpreted from the words of the statute and any other interpretation will be dehors to its very essence and purpose.

Frequently Asked Questions (FAQs)

Which colonial legislation takes the centre stage in the impugned case?

This case deals with the Provincial Insolvency Act, 1920 which was enacted by the then British government to regulate the properties with regard to an insolvent. In the present case, Altaf Ali, the executor of the waqfnama, declared himself insolvent and hence the state claimed that his waqfnama is to be annulled on the ground that the same is a voluntary disposition.

Which Act governs the validity of a waqf in India?

In India, the validity of a waqf is determined by the scheme envisaged under the Wakf Validating Act, 1913. Section 3 of the Mussalman Wakf Validating Act, 1913, provides that the waqf must be executed for religious, pious, or charitable purposes and if its ultimate aim is beyond the specified, the waqf is not valid and is liable to be set aside.

References

• https://blog.ipleaders.in/overview-on-the-concept-of-waqf
• https://blog.ipleaders.in/concept-waqf-muslim-law
• https://blog.ipleaders.in/personal-insolvency-and-bankruptcy-in-india-rationale-and-procedure/#:~:text=Insolvency%20Courts%3A&text=Under%20the%20Provincial%20In