Chagla, J.:—
The plaintiffs are the present trustees under the will of one Hajee Jusab Haji Suleman who died at Bombay on March 7, 1926, having previous to his death made his last will and testament dated December 14, 1922. By his will the deceased inter alia directed his executors to divide all his moveable and immoveable properties in three equal parts and to set apart one of such one-third part and invest the same in the purchase of some immoveable property or properties in Bombay and settle by way of wakf for the following objects, viz.—
A. To pay one-fifth of the net income thereof (after deducting out of the entire income all rates and taxes dues and duties, expenses for ordinary repairs, amount to be set apart by way of reserve fund, and all other necessary charges and expenses) to his nephew Hoosein Noor Mahomed and after his death divide the same among his heirs in proportion to their shares according to Mahomedan law and on the death of each of such heirs to divide the amount of the share of such heir among his heirs according to their respective shares and so on from generation to generation and in the event of there being no heirs of the said Hoosein Noor Mahomed or of any other heir of any generation the whole of the said one-fifth portion of the income or the amount of the share of any of the subsequent heirs dying heirless as the case may be, to utilise for the charitable objects mentioned in clause (b) thereof.
B. To spend the balance namely four-fifths of the net income of the said one-third part of his estate for rendering assistance to the poor Syed and other deserving persons at Madina Shariff, to the poor and deserving Mahomedans at Ajmer Shariff, to the widows and orphans of the Khatri Mahomedan community, preferably those among his relatives, for the education of Khatri Mahomedans and for such other virtuous and charitable purposes as his executors or the trustees for the time being appointed for the purpose of carrying out the trust or wakf might think expedient and proper.
The trustees in accordance with the directions of the will paid one-fifth of the net income of the one-third part of the trust properties to Hoosein Noor Mahomed, the sister's son of the deceased, till his death on February 13, 1941. Umar Abdulla, defendant No. 1, is the paternal uncle's son of Hoosein Noor Mahomed, and he now claims to be the sole heir of Hoosein Noor Mahomed and also claims to be entitled to the one-fifth of the net income of the trust properties which was being paid by the trustees to Hoosein Noor Mahomed.
The first question that is raised on this originating summons is whether the disposition in favour of Hoosein Noor Mahomed and his heirs from generation to generation and ultimately to charity constitutes a valid wakf under Mahomedan law. The question really divides itself into two parts: first, whether the disposition in favour of the nephew is a good disposition, and, second, whether the disposition in favour of the heirs of the nephew is a good disposition.
It is clear that according to the law as laid down in several decisions of the Privy Council, prior to the Mussalman Wakf Validating Act (VI of 1913), the wakf in favour of the testator's nephew and his heirs would have been void on the ground that the ultimate disposition to charity was illusory on the ground of remoteness (see Abdul Fata Mahomed Ishak v. Rasamaya Dhur Chowdhri(1). In order to get over the effect of the decisions of the Privy Council, Act VI of 1913 was enacted. This Act protected wakfs created by any person professing the Mussalman faith for the maintenance and support wholly or partially of his family, children or descendants, provided that the ultimate benefit was expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character, and it was expressly enacted that no wakf shall be deemed to be invalid merely because the benefit reserved therein for the poor or other religious, pious or charitable purpose was postponed until after the extinction of the family, children or descendants of the person creating the Wakf.
In order, therefore, that a beneficiary under the wakf can claim the protection under this Act, he must establish that he falls in one of the three categories mentioned in the Act, viz., (1) the family of the settlor, or (2) the children of the settlor, or (3) the descendants of the settlor. It is clear that Hoosein Noor Mahomed cannot fall in either the second the third category and, therefore, the question that arises is whether he can be considered to be a member of the family of the settlor.
The word “family”, as pointed out by Kindersley V.C in Green v. Marsden, “is in itself a word of a most loose and flexible description”, and as pointed out by Wickens V.G in Burt v. Heliyar(2) “is a popular and not a technical expression”. The question that has got to be considered is whether the word “family” should be construed in a narrow and restricted sense and its interpretation allowed to be governed by the fact that it is used in association with the words children and descendants, or whether a wider meaning should be given to that expression. In Abdul Mabud v. Nawazish Ali(3) the wakf was for the settlor's own maintenance and of that of certain others who were his distant collateral relations and their heirs after them. In deciding that collateral relations did not constitute members of the settlor's family, Dalal and Coming A.J.C.s construed the word’ “family” to mean those persons residing in the settlor's house for whose maintenance he was mainly responsible. In Musharraf Begarn v. Sikandar Jahan Begam(4) the question arose whether the daughter-in-law of the settlor could be included in the term “family”. Although the Oudh case was not referred to in this decision, Kendall and Niamat-ullah JJ. apparently followed the same reasoning and held that the daughter-in-law was included in the expression “family” inasmuch as a daughter-in-law was more or less dependent on the settlor. Similarly, in Mubarik Ali v. Ahmad Ali,(5) the same question arose with regard to an adopted son of the settlor, and Jai Lal and Skemp JJ. held that he must be considered to be a member of the settlor's family on the ground that as he resided with the settlor during his lifetime he must be held to be dependent upon the settlor. It might be mentioned that this adopted son also happened to be the brother's son of the settlor, and this decision can also be supported on the broader ground to which I shall presently refer. In Ghazanfar Husain v. Ahmadi Bibi the beneficiaries under the wakf were the nephews of the settlor and their descendants. Sen and Niamat-ullah JJ. considered the Oudh decision and felt themselves compelled to disagree with the view taken by that Court. They defined the term “family” as indicating persons descended from one common progenitor and having a common lineage. They expressed their opinion that it could never have been the object of the legislature to exclude persons who were related by blood merely by reason, of the fact that they did not reside in the house of the settlor or that the settlor was not normally responsible for their maintenance. In Imdad Ali v. Ashiq Ali the question that fell to be decided was whether a brother of the settlor was a member of the settlor's family even when such brother lived in a different country and supported himself. Sir Louis Stuart C.J and Muhammad Raza J. refused to place upon the word “family” the restriction that the Oudh decision had and held that the brother, although not living in the same house as the settlor and not dependent upon him for maintenance, was still a member of the settlor's family.
The result of the decisions thus appears to be that the word “family” as used in Act VI of 1913 would include (1) all those persons residing in the same house as the settlor and dependent upon him for maintenance and (2) all those connected with the settlor through a common progenitor or by ties of common lineage. Hoosein Noor Mahomed in the case before me satisfies both these tests. He was undoubtedly connected with the settlor through a common progenitor and also, as stated by defendant No. 1 in the affidavit filed in these proceedings which has not been challenged, he used to reside with the settlor and was also maintained by him. Therefore I hold that the disposition in favour of Hoosein Noor Mahomed was a good and valid one.
The next question that has got to be determined is whether the disposition in favour of the heirs of Hoosein Noor Mahomed is a valid one. As I have already stated, defendant No. 1 is the heir of Hoosein Noor Mahomed being the paternal uncle's son of Hoosein Noor Mahomed. Can it be said that he belongs to the family of the settlor? It is only if he belongs to the settlor's family that the disposition in his favour can be upheld and the Mussalman Wakf Validating. Act can apply to him.
It is common ground that defendant No. 1 did not reside in the same house as the settlor nor was he dependent for his maintenance upon the settlor. Nor can there be any question that the settlor and he cannot trace their descent from a common progenitor nor are there any ties of kinship, between them. If I were to hold that the disposition in favour of the heirs of Hoosein Noor Mahomed is a good disposition, it would amount to my holding that the settlor could tie up his property in perpetuity in favour of persons who were neither his children nor his descendants-nor members of his family. I, therefore, hold that the disposition in favour of the heirs of Hoosein Noor Mahomed does not come within the purview of the Mussalman Wakf Validating Act and the disposition is therefore bad in law.
Mr. Haindaday for defendant No. 1 has argued that the Court must only look to the first beneficiary under the Wakf, and if the Court is satisfied that he is a member of the family of the settlor, then the disposition in favour of the subsequent beneficiaries, provided they are the heirs of the first, is a valid disposition whether the subsequent beneficiaries belonged to the family of the settlor or not. I am afraid I cannot accede to this contention of the counsel for defendant No. 1. It is contrary to the plain meaning of the Act. The Act only permits Mussalmans to create wakfs for the benefit of the members of their family, their children or their descendants, and in order to come within the purview of the Act, every person benefited by the wakf, however remote in time from the settlor himself, must be in a position to trace his descent from a progenitor common to himself and the settlor.
The only authority that Mr. Haindaday could cite in support of this proposition was the decision in Narain Das Aurora v. Haji Abdur Rahim. The wakf in this case was in favour of the settlor and his heirs. The suit was by the mutawalli against an alienee of the wakf property, and the main question that was considered by the High Court of Calcutta was the question of limitation. Act VI of 1913 did not apply to this wakf and, therefore, it was also contended by the alienee that the ultimate disposition in favour of charity was illusory and on that ground the wakf was void. The Court came to the conclusion that the wakf was a valid one but dismissed the plaintiff's suit on the ground of limitation. Mr. Haindaday has relied on the fact that although the wakf was in favour of the settlor and his heirs and although the heirs of a Mahomedan may include persons who may not be members of his family, yet the Court held the wakf to be a good one. It is to be remembered that the Court was not called upon to construe the word “family” as appearing in Act VI of 1913 nor was the attention of the Court directed to the question whether under Mahomedan law it was open to a Mahomedan to make a permanent dedication of his property in favour of persons who were in no way related to him. This case went up to the Privy Council, and the decision of their Lordships of the Privy Council is reported in Abdur Rahim v. Narayan Das Aurora. Their Lordships decided the appeal on the question of limitation alone and reversed the decision of the High Court holding that the plaintiff's suit was within time.
It was further contended by Mr. Haindaday that assuming that defendant No. 1 was not a member of the family of the settlor, the disposition in his favour is still a good disposition independently of Act VI of 1913 under the general Mahomedan law. Mr. Haindaday's argument is that I should treat the two dispositions, viz. first one-fifth of the net income and the other four-fifths of the net income of one-third of the testator's property, as one disposition, and as there is a substantial gift to charity—four-fifths of the net income, being given admittedly to charitable objects—I must hold the disposition as a whole to be a good disposition under Mahomedan law. Mr. Haindaday's argument is that before the passing of Act VI of 1913 all wakfs were upheld so long as there was a substantial gift to charity and so long as the wakf was one which the settlor could under Mahomedan law create. Mr. Haindaday strongly urges that it is competent to a Mahomedan to create a wakf in favour of utter strangers.
I cannot accept this argument. In the first place, there are two separate and independent dispositions, one of one-fifth of his income and the other of four-fifths of his income, and each can only be sustained provided it is valid in law. Assuming I am wrong, even so I am not prepared to accede to the proposition that a valid wakf can be made in favour of strangers. According to Arabian jurists, “wakf” is a dedication or consecration of property for any charitable or religious object, or to secure any benefit to human beings; or, in other words, a dedication for any good purpose is a Wakf. The Prophet has specially commended the helping of one's family as “Giving alms to the poor has the reward of one alms; but that giving to kindred has two rewards.” “Charity” has been given a much wider meaning under Mahomedan law than under other systems of jurisprudence. But even so, in order to constitute a valid wakf the gift must be a “sadakah”—an offering or gift made with the object of obtaining the approval of the Almighty, or a reward in the next world, and as Ameer Ali points out that while a gift to a friend would not be a “sadakah” because there was no pious intention, a gift to a friend made with the object of relieving his wants or of providing against his falling into indigence would be a “sadakah”, as the intention in that case Would be to receive the approbation of the Almighty. Ameer Ali in his learned treatise at p. 277 in giving illustrations of the Wakfs that may be made in favour of individuals mentions wakfs in favour of strangers. The learned author cites no authority for this proposition, and it seems to be clearly opposed to the texts he himself has cited in the earlier part of his book and his own observations. It Would indeed be curious if Mahomedan law looked upon dispositions in favour of strangers as a religious, pious or charitable purpose. It is dangerous to found propositions of law upon texts of an abstract character without reference to limitations and restrictions which accompany them.
The last and final question that arises is, if the disposition in favour of the heirs of Hoosein Noor Mahomed is void, whether the ultimate benefit to charity should be given effect to and whether the trustees are bound to spend the one-fifth the trust properties on the charitable objects mentioned in the will. The learned Advocate General has argued that the ultimate disposition in favour of charity is valid although the intermediate dispositions are void. He has relied upon the principles underlying s. 27 of the Transfer of Property Act and s. 129 of the Indian Succession Act. The principle of these two sections is that although a prior disposition may fail in a manner not contemplated by the settlor, the ulterior disposition would still take effect. The learned Advocate General has argued that in this case the settlor wanted charity to benefit in the event of there being no heirs of Hoosein Noor Mahomed. In this case although there are heirs of Hoosein Noor Mahomed but as they cannot take in law, there is a failure of the disposition although in a manner not contemplated by the settlor and, therefore, the ultimate disposition in favour of charity should be upheld. I do not think the argument of the learned Advocate General, is sound. The failure contemplated by s. 27 of the Transfer of Property Act and s. 129 of the Indian Succession Act is the failure of a valid gift. When the gift is ab initio void, the subsequent gifts must also fail as provided by s. 16 of the Transfer of Property Act and s. 116 of the Indian Succession Act. The principle of English law is also similar, and that is expressed in the phrase that a limitation following upon a limitation void for remoteness is itself void even though it may not of itself transgress the rule against perpetuity. In Fatmabibi v. The Advocate General of Bombay, Mr. Justice West took the view that the rule of Mahomedan law appeared to be that should the intermediate purposes of the dedication fail the final trust for charity did not fail with them. This decision of Mr. Justice West has been adversely commented upon by the decision of the Privy Council in Mahomed Ahsamulla Chowdhry v. Amarchand Kundu No authority has been cited to me at the bar to show that in fact was the principle of Mahomedan law, and I would be surprised if that were so, because in that case it would be difficult to understand why the Privy Council in a series of cases before the passing of Act VI of 1913 held the wakfs to be void on the ground that they were intended for the aggrandisement of the family of the settlor when they could have given effect to the ultimate trust for charity after setting aside the intermediate dispositions in favour of the settlor's family. I, therefore, hold that the ultimate disposition in favour of charity is also void, and the trustees are not bound to spend the one-fifth income of the trust properties on the charitable objects mentioned in the will.
My answers to the questions raised in the originating summons will be:—
(1) The disposition in favour of Hoosein Noor Mahomed is valid. That in favour of his heirs and in favour of charity is void,
(2) In the negative.
(3) In the negative.
(4) Costs of all parties appearing to come out of the estate. Costs of the plaintiffs and defendant No. 2 as between attorney and client.
Attorneys for plaintiffs: Messrs Tyabji, Dayabhai & Co.
Attorneys for defendant No. 1: Messrs R.M Kothari & Co.
Attorney for defendant No. 2: Mr. C.C Shah, Solicitor to the Government of Bombay.
Answers accordingly.
N.K.A