Mookebjee, J.:— This is an appeal by the first two defendants in a suit instituted by the plaintiffs for a declaration that a wakf executed by the late Mohamed Elahi Buksh Sarkar on the 31st January, 1915, is valid, that the first plaintiff is the duly appointed Mutwali thereof and that no title accrued to the seventh defendant under the conveyance executed in his favour by the first six defendants on the 11th April, 1916. The defendants resisted the claim upon every conceivable ground; the chief objections are indicated in the following three issues:—
“6. Was Elahi Bux Sarkar at the date of execution of the wakfnama suffering from death-illness? Was he physically and mentally incapable of executing the wakfnama when it is alleged to have been executed? Did Elahi Bux Sarkar execute the Wakfnama, if at all with his free consent and with that of his heirs?
7. Did Elahi Bux Sarkar belong to Shafi sect of Mahomedan? If so, is the alleged wakf valid?
8. Is the wakfnama propounded by the plaintiff genuine and legally valid?
The Subordinate Judge has found in favour of the plaintiffs upon all the points in controversy and has decreed the suit. Upon the present appeal, his decree has been challenged substantially on four grounds, namely, first, that the wakf as is indicated by its terms was illusory and inoperative in law; secondly, that the wakf was invalid because the settlor was at the time heavily involved in debts and the properties dedicated were under mortgage; thirdly, that the wakf was invalid, as possession of the properties dedicated was not transferred to the Mutwali during the life time of the settlor; and fourthly, that the wakf in excess of a third share was invalid as it was executed when the settlor was suffering from marz-ul-maut or death illness and without the consent of his heirs.
As regards the first point, it is plain that the legality of the dedication which, it is not now contested, was in the present case made by a Hanafi Mussalman, must be tested with regard to the provisions of the Mussalman Wakf Validating Act (VI of 1913). This Act came into force on the 7th March, 1913, and in sections 3 and 4 provides as follows:—
“3. It shall be lawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of Mussalman law for the following among other purposes
(a) for the maintenance and support wholly or partially, of his family, children or descendants, and
(b) where the person creating is a Hanafi Mussalman, also for his own maintenance and support during his life time or for the payment of his debts out of the rents and profits of the property dedicated:
Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character.
4. No such wakf shall be deemed to be invalid merely because the benefit reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the wakf.”
We shall now analyse the provisions of the wakfnama to show that they do not contravene the requirements formulated by the Legislature. The preamble recites that the settlor is a Hanafi Mussalman and that he is anxious to attain salvation, though he also realises the paramount duty of every one to provide for the maintenance and worldly expenses of his own self and family, children and descendants. He accordingly creates the wakf for religious purposes, for the maintenance of his own self and family, children and descendants, and also to prescribe a suitable means for the payment of all his debts. Then follow detailed rules in seven paragraphs. The first paragraph lays down that the settlor shall be Mutwali during his life time and then describes how the office of Mutwali shall be held by his descendants from generation to generation, or in the event of extinction of his line, by suitable persons selected by the District Judge. The second paragraph describes the expenses to be met from the gross collections of the wakf estate. The third paragraph provides that one-eighth of the net income is to be spent for specified religious purposes, such as, prayer in mosques, instruction in religion and morals, distribution of alms, feeding of the poor and the like. The fourth paragraph provides that one-fourth of the net income is to be annually devoted for the liquidation of a mortgage debt of Rs. 20,000. After clearance of the debt, the amount is to be regularly applied in the payment of monthly allowances to poor Mussalman students. The fifth paragraph provides that one-half of the net income is to be applied for the payment of maintenance allowances to the descendants of the settlor in specified proportions; on failure of the person or persons to whom allowances are directed to be paid, their share of the money is to be applied for one or more of the religious acts previously mentioned. The sixth paragraph provides that one-sixteenth of the net income shall be carried to a reserve fund for payment of rent and revenue, if at any time there should be no good collection of rent from scarcity of crops due to drought or inundation. The seventh paragraph provides that the remaining one-sixteenth of the net income shall be received by the Mutwali as his remuneration. This summary of the leading provisions of the wakf leaves no room for serious controversy that the dedication cannot in any sense be deemed illusory. Although provision is made for the maintenance and support of the family, children and descendants of the settlor the ultimate benefit is reserved for the poor and for other purposes recognised by the Mohamedau Law as religious, pious, or charitable purposes of a permanent character. Indeed, there is an immediate gift to charity of a substantial character. We hold accordingly that tested in the light of the provisions of the Mussalman Wakf Validating Act, no valid objection can be taken to the legality of the wakf.
As regards the second point, it is plain that under section 3(b) of the Wakf Validating Act, it is lawful for a person professing the Mussalman faith to create a wakf for the payment of his debts out of the rents and profits of the property dedicated. This is in accord with, the case of Luchmiput v. Amir Alam which is an authority for the proposition that a Hanafi Mussalman may execute a valid wakf by a deed which directs that the income of the property dedicated should be applied, in the first instance, for the payment of his debts and after the discharge thereof, towards defined religious and charitable purposes. In an earlier case, Shahasadi Hazara Begum v. Khaja Hossain Ali it had been held by Sir Barnes Peacock, C.J, that the existence of a mortgage at the time of creation of the endowment, does not render the endowment invalid under the Mohamedan Law. This view is supported by texts of the highest authority. Thus, in the Patawai Alamgiri (text, Vol. II, p. 458, Baillie, Digest, Part I, p. 563) it is stated on the authority of the Fath-ul-Kadir (text, Vol. II, p. 638):
“It is not a condition that the property dedicated should be free from the rights of others (hakh-ul-ghair) as in the case of pledge and bailment, so that if one were to give a lease of his land and were then to make a wakf of it before the expiration of the term, the wakf would be binding according to its conditions, and the contract of lease would not be voided, but on the expiration of the term the land would revert to the purposes to which it was dedicated. In like manner if a man were to mortgage his land, and then dedicate it before redeeming it, the wakf would take effect, but the land would not be withdrawn in the same way from the mortgage, and if it should remain for years in the hands of the mortgagee and then be redeemed, it would revert to the uses for which it was made wakf. And if the mortgagor should die before redemption, yet if he should leave sufficient inheritance to redeem the land, it is to be redeemed and the wakf would take effect. But if he should not leave enough for that purpose, the land may be sold and the wakf would become void. In the case of a lease, when either the lessor or lessee dies, the lease becomes void, and the wakf immediately takes effect; so in the Fath-ul-kadir.”
The statement in the Durr-ul-Muklitar (text, p. 417, tr. Brij Mohon Dayal, p. 358) is expressed in similar terms:
“Wakf, during his (the dedicator's) death-illness, has the same effect as gilt during that period, that is it is valid to the extent of a third (of the dedicator's estate) when possession is delivered. Now if the wakf can take effect out of a third (of the dedicator's estate) or (his) heir sanctions it, it would take effect in fall, otherwise it would fail so far as it exceeds the third. If the heir sanctions it in part, it would be valid to that extent. Wakf created by one who has mortgaged his property and is in had circumstances as well as by an ill person who is heavily indebted is ineffectual, but not by a debtor who is not ill, provided he creates it before his becoming incompetent (for dedicating his property on account of his heavy debts). If a dedicator who is indebted provides for the payment of his debts out of the usufruct, the wakf shall be valid, but should he make no such provision, the debt shall be paid out of surplus income, after meeting the expenses of the trust economically. If he dedicates the property for the benefit of a person other than himself, then the income of the dedicated property shall belong to him exclusively for whom it is dedicated—Fatwa of Ibn-i-Najeem.
I say that Ibn-i-Najeem has said that the debt must be heavy, because if it is not heavy, dedication shall be valid to the extent of a third of the dedicator's estate after payment of debts in case the dedicator has got heirs, otherwise in respect of the whole of it. If a Kazi sells the endowed property (to pay off the debts) and then some money is found, another land shall be purchased instead of the one sold. The whole of this discussion is to be found in the is at, under the Chapter on wakf by sick people.
In the Wahbaniah it is said:—
If one dedicates mortgaged property and then redeems it, it is lawful. If he dies leaving behind money sufficient for redemption, no change (in the dedication) shall be necessary that is to say, if he does not leave behind so much money, the wakf would fail or (the defraying of the expenses of the trust out of) the usufruct will be suspended (till payment of debt).
I say that in the Marrozat of Mufti Abu Saud it is recorded that he was enquired as to whether it was valid for a man to dedicate his property for the benefit of his descendants and thus avoid payment of his liabilities. His reply was that it is not valid and binding and that Kazis are forbidden from enforcing and registering such trusts so far as the liabilities extend. So remember this.”
In our opinion, there can be no room for real doubt that the wakf in the present case is not invalidated by reason of the circumstances that the property dedicated was under mortgage and that the provision was made in the wakfnama for the discharge of the mortgage debt.
As regards the third point, it has been urged that the wakf must be pronounced invalid, in the absence of conclusive evidence to show that the possession of the properties dedicated was transferred to the Mutwali during the life-time of the settlor. There is some divergence of opinion among classical Mussalman jurists on the question of the elements essential for the completion of a valid wakf. Under Hanafi law a wakf is completed, (a) according to Abu Yusuf, by the mere declaration: [Hedaya, tr. Hamilton and Grady, pp. 233, 239, 240; Baillie Part I, pp. 551, 591, Dyal v. Keramat]; (b) according to Imam Mohamed, only if after the declaration a Mutwali is appointed and possession is delivered to him: Muthukana v. Vada; (c) according to Abu Hanifa, except in the case of a testamentary wakf, only when a decree of the Court declares that the property is the subject of a wakf, but not before this is analogous to the in jure cessio of Roman Law and the fines of the early English law: (Hedaya, tr. Hamilton and Grady, p. 233; Baillie, Part I, p. 550). In Doe dem Jaun Bebee v. Abdallah, Ryan, C.J and Grant, J. held, after reference to the Mohamadan Law officers, that the exposition of Hanafi law by Abu Yusuf on this point should be adopted, in other words, that a valid wakf is created by declaration of endowment by the owner and delivery of possession is not essential. This decision, so far as we have been able to trace, does not appear to have been doubted in this Court, and was followed in Ramzan v. Zahur(4) as an authority for the proposition that the appointment of a Mutwali is not essential to the validity of a wakf. It may also be observed that in Khaja Hossain Ali v. Hazara Begum(5), Mr. Justice Kemp whose opinion prevailed against that of Mr. Justice Markby and was upheld on appeal under the Letters Patent, Shahazadi Hazara Begum v. Khaja Hossain Ali(6), observed that decisions are primarily given according to Abu Yusuf and next according to Imam Mohamed; and this preference to the opinion of Abu Yusuf is supported by the statement in the Fatawai Alamgiri (text, vol. II, pp. 454-455.) Reference may also be made to the following passage from the Suzzat-ul-Fatawa, p. 430:—
“Though according to Mohamed, consignment of the dedicated property and separation of it (from the other properties of the wakf) are necessary to the completion of a wakf, according to Abu Yusuf, the wakf becomes absolute and binding, like emancipation on the mere declaration of the wakf, and his right therein becomes extinguished at once. And in the Khulasa it is laid down that the jurists of Balkh decide according to the rule laid down by Abu Yusuf and Sadr-ush-Sliahid has stated that the Fatwa is according to him; and in the Fath-ul-kadir it is mentioned that Abu Yusufs opinion is the accepted doctrine; and in the Munieh it is stated that the Fatwa is with Abu Yusuf and this is the rule accepted by the jurists of Balkh. But the Bokharites have adopted Mohamed's opinion. And in the Shar-i-Yikayah and the commentary of Mulla Khusru (the Durrar-ul-Akham) it is laid down that the Fatwa is with Abu Yusuf. In some places, it is mentioned in the Khanieh (Fataewai Kazi Khan) that the Fatwa is with Mohamed ……. But in the Mohit it is laid down that the universality of our jurists have adopted the rule laid down by Abu Yusuf and this is correct.”
In a recent case in the Allahabad High Court, however [Mohammad Asisuddin v. Legal Remembrancer], where the decision in Doe dem Jaun Bebee v. Abdallah, was not brought to the notice of the court, preference was given to the opinion of lmam Mohammed. We do not see sufficient reason to depart from the rule which was enunciated more than eighty years ago by the Supreme Court and is not shown to have been ever successfully challanged. We notice that the question was raised but not actually decided in Banubi v. Narsing Rao, inasmuch as, in the circumstances of that case, there was neither declaration of wakf nor delivery of possession; a mere intention to set apart property for charitable purposes was clearly not sufficient to create a valid wakf: Mulla v. Subramania. In the present case, there is a further difficulty in the path of the appellants. Here the settlor had appointed himself as the first Mutwali, and in such a contingency, no formal delivery of possession from himself to himself would be necessary even according to Imam Mohammad: Abdul v. Bai Jimlea Bai. We must farther remember that the wakfnama was executed on the 31st January 1915, and the settlor died on the 15th April 1915; it can hardly be expected that during this short period, there could be many transactions indicative of transmutation of possession. But such evidence, as there is on the record, points to the conclusion that, after the execution of the wakfnama, the settlor held the dedicated property, not as owner but as Mutwali. The direct oral evidence on the point is corroborated by the collection papers, the counterfoils of rent receipts, the plaints in rent suits and the power of attorney which have been produced to show that after the date of the wakfnama Elahi Bux held and managed the endowed property in the character of Mutwali. There is consequently no room for the application of the principle which has sometimes been recognised, namely, that where the declaration of a wakf is not acted upon by the settlor and its objects are not given effect to, it may be presumed that the wakf was not completed or that the settlor had no bona fide intention to create a wakf: Delroos Banoo v. Nawab Asghar Ali, Zooleka v. Ztpial Abedin. We hold accordingly that delivery of possession was not a pre-requisite to the validity of the wakf in the present case, and that even if transmutation of possession was necessary, no formal delivery was essential, as the settlor was himself the first Mutwali. The third ground consequently fails.
As regards the fourth point, it has been urged that the wakf was invalid to the extent of a two-thirds share, inasmuch as it was executed by the settlor in death-illness without the consent of the future heirs. The Subordinate Judge negatived this contention as, in his opinion, the evidence did not establish that the settlor was in death-illness at the time of execution of the deed of wakf. Before we refer to the evidence on the point, the requisites of the Mohammedan law on the subject may be usefully recalled here. It is well-settled that gifts made by a Mussalman during marz-ul-maut or death-illness cannot take effect beyond a third of the surplus of his estate, after payment of funeral expenses and debts, unless the heirs give their consent, after the death of the donor, to the excess taking effect, Ibrahim v. Saiboo, nor can such gifts, take effect if made in favour of an heir, unless the other heirs consent thereto after the donor's death Khajooroonnessa v. Rowshan, Bafatun v. Bilaiti, Similarly, a wakf made in death-illness is valid only to the extent of a third of the net estate left by the deceased unless the heirs consent. Baillie Part I p. 601, Part II, p. 212, Ali Husain v. Fazla Husain. The substance of the matter is that a Muslim who is in marz-ul-maut or death-illness cannot make a valid disposition of more than one-third of his property, and if he purports to make a wakf in such illness, unless his heirs assent, the wakf will affect only one-third of his estate and will be invalid in respect of the excess; and it is important to add that this principle operates, notwithstanding that possession of the entire property dedicated has been delivered to the person nominated Mutwaii. In order to establish the existence of death-illness, there must be at least three conditions with regard to the illness which has caused death, (a) proximate danger of death, so that there is a preponderance of apprehension of death, (b) there must be some degree of subjective apprehension of death in the mind of the sick person; and (c) there must be some external indicia, such as inability to attend to ordinary avocations. Whether or not a particular illness constitutes marz-ul-maut is primarily a question of fact, as stated by Lord Robertson in Ibrahim v. Saiboo, but it may sometimes be a mixed question of law and fact, for instance where the question arises whether the facts found as to the physical condition of the deceased at the date of execution of the deed constitute the essential elements of a marz-ul-maut as formulated by Mohamedan jurists. The leading authorities in this Court which support these proposition are the cases of Hasarat Bibi v. Goolam Jaffar, and Fatima Bibi v. Ahmad Bux, which was affirmed by the Judicial Committee in Fatima v. Ahmad. In the case last mentioned, the three elements emphasised were (i) illness, (ii) expectation of a fatal issue and (iii) certain physical incapacities which indicate the degree of the illness. The second condition, it was pointed out, cannot be presumed to exist from the existence of the first, while the incapacities indicated in the third condition (with perhaps the single exception of the case where a man cannot stand up to say his prayers) are more or less of an empirical character, based upon an imperfectly devolved science of diagnosis and cannot possibly serve as infallible signs of death-illness. The importance of the subjective element was emphasised in the course of argument and will be found developed in the texts set out by Mohammed Yusuf in his Tagore Law Lectures on Marriage Dower and Divorce, Vol. III, paras. 2919-2924, 2945-2947. This view, however, is repudiated by Sir Abdur Rahim, in his Tagore Law Lectures on Mahomedan Jurisprudence (p. 255) where reference is made to Kulsum v. Golam. A view similar to that adopted in this Court has been taken in the Bombay High Court in the case of Sara Bai v. Rabia Bai, and Rashid v. Sherbanoo, by the Allahabad High Court in the cases of Labhi v. Bibban, Mohammed Gulshere v. Mariam Begum, Muhammed Mashud Hassan v. Anwar Hussin(7), Muhammad Sayeed v. Ismail(8), Nazar v. Rafiq(9), Khurshed v. Fayas(10), Shaikh Muhammed v. Khalija, Wazir Jan v. Allaf Ali, Fasi Ahmed v. Rahim Bibi, and by the Patna High Court in Fazlur Rahaman v. Mohammed Omar; (see also Durrul Mnkhtar, tr. Day a I, p. 411; Hedays tr. Hamilton and Grady, p. 685 and Baillie Part 1, p. 551-552). We have now to consider, whether the evidence shows that, in the words of Lord Robertson in Ibrahim v. Saiboo, the wakf was made “under the pressure of the sense of imminence of death.” The deed of wakf, as we have seen, was executed on the 31st January 1915, and was registered on the following day. The defendants rely chiefly upon documentary evidence to show that from the beginning of November, 1914, to the middle of January, 1915, Elahi Buksh was ill and that he was laid up again in the second week of March, 1915. The defendants have also; adduced oral evidence to show that Elahi Buksh was ill continuously from November, 1914, to April, 1915 when his death took place. The Subordinate Judge has carefully analysed the oral evidence and has come to the conclusion that the persons who have come forward to depose in favour of the defendants cannot be regarded as witnesses of truth. After examination of this evidence in detail we see no reason to doubt that the Subordinate Judge correctly estimated its value, specially as the witnesses, almost without exception, are not free from bias. As regards the documentary evidence, it appears that in a suit instituted by Elahi Buksh against one Ataraddin Mondai and others for arrears of rent, the defendants cited him as a witness. The result was that on the 3rd November, 1914, Elahi Bux applied for time to give his evidence, and four days later, he prayed that as he was an old man of 77, bedridden with fever for a week, be might be examined on commission. This was supported by an affidavit from Kabiraj Sris Chandra Sen who certified that he was suffering from chronic intermittent fever; this Kabiraj has been examined as a witness in this case. An order was made for the issue of a commission but a postponement was obtained, as the pleader was unwell on the date fixed (7th March, 1915). Thereupon the Commissioner went to examine Elahi Bux on the 14th March, 1915, but he was asked to postpone the examination, as the illness had increased and the patient had very little hope of surviving. This was supported by a certificate from Kabiraj Satis Chandra Sen stating that Elahi Bux was confined to bed from fever, piles and pain, that he was unable to speak and that there was danger of death if he gave his deposition. Neither the Commissioner nor the Kabiraj has been examined as a witness, and the statements in the report by the Commissioner to the Court and in the certificate given by the Kabiraj are not admissible in evidence. But, the statements, even if admitted do not show the condition of Elahi Buksh on the 31st January, 1915, when the wakfnama was executed. The Subordinate Judge has further observed that Elahi Bux was perhaps reluctant to give evidence and that the allegations as to the state of his health were not improbably exaggerated. This finds some support in the evidence adduced by the plaintiffs, which delates to a point of time much nearer to the date of execution of the wakfnama than the evidence of the incidents mentioned by the witnesses of the defendants. The evidence led by the plaintiffs shows that in January, 1915, Elahi Buksh Went to the house of his father-in-law at Rajarampur which involved a journey by bullock cart over 12 to 14 miles of road. One of these journeys was shortly before while the other was shortly after, the 31st January, 1915. On his return journey, he lost a silver betel-pot and on the 6th February, 1915, he lodged, information at the police station. He had also an altercation on the way with Kadir Buksh, a witness of this case, who laid an information with the Police against Elahi Bux and his peon on the 21st January, 1915. There can thus be no doubt on the oral evidence, supported by reliable documentary evidence, that between the 21st January and the 6th February, 1915, the state of health of Elahi Buksh was such that he was able to go from village to village to see his friends and relations, to arbitrate in the settlement of disputes of other people, and to follow the ordinary avocations of life. In cases of this character, when direct evidence of the state of health of the settlor on the date of the deed is not available, the evidence of antecedent and subsequent conditions of the settlor should converge to that point of time; this test is well-satisfied in the present case. Even if it be assumed that Elahi Buksh was ill in November and December, 1914, and in the first week of January, 1915 and further that he was ill again from the middle of March till his death in the middle of April, the validity of the wakfnama executed on the 31st January, 1915 cannot be successfully impeached cm the ground of marz-ul-maut, when there is positive evidence to show that from the middle of January to the middle of February, 1915, which includes the date of execution of the deed, he was in a fairly good state of health. In such circumstances it cannot be urged that the wakfnama was executed under the pressure of the sense of imminence of death. We hold accordingly that the conclusion of the Subordinate Judge on this part of the case cannot be successfully challenged.
The result is that the decree of the Subordinate Judge is affirmed, and this appeal dismissed with costs.
Buckland, J.:— I agree and have nothing to add.
A.S.M.A
Appeal dismissed.