Sm. Masuda Khatun Bibi v. Mahomed Ebrahim .

Mukerji, J.:— This is an appeal by defendant 1 from a preliminary decree in a partition suit. The following genealogy will show the relationship of the parties:

2. The two plaintiffs commenced the action on a plaint filed on 28th February 1927. The properties in respect of which partition was asked for were described in three schedules annexed to the plaint; schedule Ka, consisting of securities and cash, schedule Kha, moveable properties and schedule Ga, immovable properties. The shares claimed were on the basis of a genealogy, which was the same as given above, except that there was no mention therein of defendant 4 or of defendant 5, and the only persons impleaded as defendants in the suit were the first three defendants. It was maintained in the plaint that Badrul Alum had one wife only, namely, defendant 3 Srimati Abeda Khatun and as regards his relations with Mrs. Katherine Alum the following statement was made in para. 4 of the plaint:

“The late Badrul Alum, the only son of Bazlul Karim was sent away by the father to qualify himself for the Bar, and when he returned from England as a Barrister, he brought with him an English lady. At this his father was very much annoyed, and Badrul Alum being involved in debts for various reasons was compelled to file a petition in insolvency and sent the lady back to England. Defendant 3 is the legally married wife of Badrul Alum under the Mahomedan law, and to her misfortune she survived (not ‘predeceased’ as in the paper book) the said Badrul Alum.”

3. Defendant 1 filed a written statement on 27th April 1927 in which she denied the correctness, in several respects of the genealogy which the plaintiffs had set up; but with these details we are not concerned at the present stage, except that it was pleaded that the suit was not maintainable as the daughter of Badrul Alum who was an infant had not been made a party (para. 7). On the merits it was alleged that Bazlul Karim had no personal interest in any of the immovable properties in suit at the time of his death, because he had made a wakf in respect of them by a registered deed on 30th April 1920, and had since then and till his death dealt with them as muttawali under the said wakf (para. 9); that after Bazlul Karim's death his son Badrul Alum and after the death of Badrul Alum defendant 1 had acted as such muttawalis (para. 13); and that the heirs of Bazlul Karim did not inherit any of the said properties (para. 12). It was also alleged that the moveables had not been correctly scheduled and that such moveables as were in existence belonged exclusively to defend ant 1. On 13th December 1928, the plaintiffs amended their plaint by impleading Mrs. Katherine Alum, the English lady referred to by them in their plaint, as defendant 4 and an infant daughter of hers named Badre Manir alias Tepi as defendant 5, adopting the averments which defendant 1 had made in her written statement, as already stated, that they were wife and daughter respectively of the said Badrul Alum.

4. The written statements filed by other defendants require no specific mention, they being more or less on the lines of the one which defendant 1 filed and which has been recited above.

5. On 14th January 1930 the examination of defendant 1 began. On that date, in her examination-in-ohief, she deposed to the creation of the wakf and she and her predecessors having acted as muttawalis under it and then she was cross-examined in part. Thereafter on 17th January 1930, the plaintiffs applied for an amendment of the plaint with reference to para. 9 of the written statement of defendant 1, that is to say, with a view to raise an issue as to the invalidity and the inoperative character of the wakf. The Court rejected the prayer with the following order:

“Plaintiffs' application for amendment of the plaint with reference to para. 9 of defendant l's written statement is strongly opposed by defendant 1. That written statement was filed nearly three years ago (on 27th April 1927) and defendant 1 has already been examined in chief by the Commissioner. No explanation has been given why in spite of para. 9 of defendant l's written statement, the plaintiffs did not apply for amendment of the plaint much earlier. I am not at all satisfied as to the bona fides of such a belated application, which is refused.”

6. On a further petition by the plaintiffs filed on 5th February 1930, the prayer for amendment was reconsidered and it was eventually allowed on 10th February 1930. The effect of this amendment was to insert in the plaint a statement that although Bazlul Karim somehow managed to send the English lady to England, yet as Badrul Alum was of immoral character and intemperate habits and had run into debts and so had been obliged to seek the protection of the-Insolvency laws, Bazlul Karim, in order to bring him round and by way of threat only, executed a bogus wakfnama in 1920, never intending that it should be effective or operative, and that Bazlul Karim so long as he was alive, never dealt with the properties as muttawali, and on the other hand, revoked the wakf by a deed in 1923.

7. On this last mentioned amendment being made a specific issue was raised in these words:

“Whether the properties are personal or wakf properties. Whether the wakf is a valid one and, if so, can it be revoked?”

8. This was added to issue 7 which as originally framed was rather vaguely worded and ran thus:

“Which of the properties are in existence? Are they or any of them ijmali or personal properties; if so, what are the respective shares?”

9. It would thus appear that after the aforesaid amendment the main question that arose for determination was whether the immovable properties were wakf properties or personal properties of Bazlul Karim at the time of his death. This question was answered by the Subordinate Judge in favour of the plaintiffs. Two other questions, amongst others, were also considered by him, namely whether another daughter of Mrs. Katherine Alum was also a daughter of Badrul Alum and so a necessary party in the suit, and whether the moveables in suit belonged exclusively to defendant 1. These two questions also were decided by the Subordinate Judge adversely to defendant 1 and in favour of the plaintiffs.

10. On these conclusions and on his findings on the other issues which however are no longer of any importance, the Subordinate Judge made a preliminary decree declaring the Plaintiffs' four annas 145 gandas share in all the properties in suit and ordering a partition of the said share to be made by a Commissioner appointed for the purpose.

11. The first and the main contention that has been urged on behalf of the appellant in this appeal is that the view which the Subordinate Judge has taken of the wakf is not correct. The execution of the deed was never in controversy, but as regards its validity and operative character, which were the points in dispute the Subordinate Judge was of opinion that the wakf contravenes the provisions of the Wakf Validating Act, 1913 being a family arrangement without any ultimate benefit; to the poor; that the wakf was unreal, illusory and inoperative having been created with no desire that it should be acted upon and the deed of wakfnama having been executed by Bazlul Karim only with the object of using it as a lever for checking the wild career of Badrul Alum and for bringing him under control, and as soon as it produced some effect Bazlul Karim hastened to revoke it by a registered instrument; that Bazlul Karim never acted under the deed, but on the other hand dealt with the properties covered by it as if he was the owner thereof, notwithstanding that by the deed he had constituted himself a muttawali in respect of them; and that even after Bazlul Karim's death, the provisions of the deed remained unenforced. The appellant has challenged all these findings, while the respondents have endeavoured to support them.

12. Before dealing with the relevant facts bearing on this main contention it will be convenient to refer to one matter on which some reliance has been placed by the parties, each for their own purpose, namely, the fact that in 1924, soon after Bazlul Karim's death, his two daughters, i.e, Sm. Siddique Bibi (wife of plaintiff 2 and mother of plaintiff who was then alive, and defendant 2, Sm. Badre Jehan, instituted a suit for partition of all properties, moveable and immovable, which had belonged to their father. Badrul Alum was defendant 1 in that suit, and he filed a written statement (Ex. H) in it setting up the wakf and asserting that Bazlul Karim had acted as muttawali till his death, and that thereafter he himself was acting as such. The suit came to an end with an order dated 19th May 1925 (Ex. 9) by which it was dismissed for non-prosecution and with costs to one of the defendants therein. The fact that no fresh suit was instituted by the plaintiffs of that suit after it was dismissed as aforesaid is relied upon on behalf of the appellant as showing the falsity of the claim in the present suit; while the respondents explain, by reference to the agreement, Ex. 1, that the appellant, Sm. Masuda Khatun, who came to be in possession of the properties, Badrul Alum having died in the meantime, settled the dispute amicably by agreeing to pay to Sm. Siddique Bibi a sum of Rs. 35 per month out of the income of the properties and allege that it was because of this settlement that the suit then pending was allowed to be dismissed for non-prosecution and no fresh suit was brought subsequently. The appellant denied the genu, ineness of the document Ex. 1. The Subordinate Judge was inclined to accept the explanation of the respondents and, to hold the document as genuine observing;

“It (i.e, the document) is open to suspicion no doubt, but how and why the daughters would drop this partition suit unless some such arrangement was arrived at.”

13. In our opinion there are serious difficulties in the way of accepting the respondents' version: the authenticity of the document rests on the evidence of plaintiff 2 alone, defendant 1, the alleged executant, as well as Khodadad Hossein, the alleged scribe, having repudiated it, and Sajjad Karim, whose name it bears as that of a witness, not having been examined; the story of the amicable settlement would not account for the conduct of defendant 2, Badre Jehan, in allowing the suit to go by default and in abstaining from instituting a fresh suit, seeing that she received no benefit under Ex. 1. On the other hand the appellant's argument, that the result of the suit demonstrates the falsity of the present claim, has not much force. The matter, on the whole, is not one of much consequence so long as the order of dismissal cannot be pleaded in bar to the present suit, and, in our opinion, it cannot be successfully so pleaded.

14. The wakf was made in April 1920. It is not disputed that there is in the deed creating it a dedication, prima facie permanent, as opposed to a dedication for a limited period, and that in that way the dedication fulfils requirements of permanency as specified in the definition of “wakf” given in Section 2 of the Mussalman Wakf Validating Act, 1913. The Act came into force on 7th March 1913 and applies to the wakf in question. What is said against it is that it is a wakf made for the maintenance and support of the wakif himself and his family and does not fulfil the requirements of the proviso to S. 3 of the Act which runs in these words:

“Provided that the ultimate benefit is in such cases 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 that consequently it was not a lawful wakf. If the Act did not apply it would have been necessary, in view of the provisions in the deed meant for the benefit of the settler himself and of his family, to examine the terms of the deed with care, and as a whole in order to see whether it can be said that the real object of the settler was to make a family settlement which would otherwise be invalid under the Mahomedan law of succession, and that the gift to charity that it provided for was either illusory or too remote; or, in other words, whether, notwithstanding the provisions for the benefit of the settler's family, there was in the deed a substantial dedication to charity. The Act applying, what we have to find out is whether, notwithstanding the and provisions, the ultimate benefits have been 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. The distinction has been pointed out by their Lordships of the Judicial Committee in the case of Balla Mal v. Ataullah Khan . A.I.R 1927 P.C 191 in these words:

“Under the Act a wakf is not rendered invalid because it appears that the main object of the settler was to make a settlement of his property on his family rather than to devote it to what are ordinarily understood as charitable purposes, whereas, with regard to wakfs, created before the passing of the Act, the test still is, as laid down by the Board in Mahomed Aksanulla Choudhury v. Amar Chand Kundu . [1889] 17 Cal. 498, Majibunnessa v. Abdur Rahim . [1900] 23 All. 233, Mutu Ramanandan Chettiar v. Levvai Marakayar . A.I.R 1916 P.C 86 and Soleman Qaadir v. Salimullah Bahadur . A.I.R 1922 P.C 107: Was there a substantial dedication of the properties included in the wakf to charitable purpose? The test may sometimes be difficult of application, and in applying it the Courts, especially since the passing of the Act, will not be disposed to construe the provisions of the deed too strictly; but still the question must remain whether the properties included in the wakf have been substantially dedicated to charity, or whether they have been put into wakf by the settler with the real object of effecting some non-charitable purpose such as, for instance, that of making a family settlement of his property which would otherwise be invalid as opposed to the Mahomedan law of succession… Law as laid down by the Board is that the properties must be substantially dedicated to charity, and not… that the gift to charity should be substantial.”

15. An extreme contention has been raised on behalf of the appellant, viz., that the primary and technical meaning of the word “wakf” implies ultimate benefit to the poor or to some charitable or religious purpose, and since that word has been used in the document, the requirements of the proviso to S. 3 of the Act are satisfied. In support of this contention the following passage from Mr. Ameer Ali's Mahomedan Law, Edn 4, Vol. 1, p. 340, has been cited:

“Under the law perpetuity, express or implied, is a necessary condition in a wakf. The wakif must relinquish his rights in property for ever and it must be consigned to the custody of God for ever. But it is not necessary that either the word “perpetuity” should be mentioned or that it should be stated in express terms that the dedication is for ever. If the wakf is in favour of an object of an unfailing or permanent character, the dedication is valid and binding without the mention of the word “perpetuity.” If it is in favour of an object or objects which, in the course of nature must come to an end at some time or other, and if the dedication is made with the word “wakf” or some of its equivalents like “sadakah,” then, according to the recorded or recognized doctrine, the law will presume that the ultimate reversion is to the poor who never fail, unless some other object of 3 permanent character is mentioned.”

16. And in support of this proposition of law it has been pointed out that according to Abu Hanifa and Muhammad it is necessary for a wakf to be complete that the ultimate benefit for purposes of charity should be expressly reserved, while according to Abu Yusuf on the other hand such benefit may be reserved impliedly, the mere use of the word “wakf” being sufficient for the purpose. It has been argued—that Futwa Alamgiri is in favour of Abu Yuauf's view and that the tenants of Abu Yusuf are to be preferred so far as Bengal is concerned: see Jinjira Khatun v. Mohammad Fakirulla Mia* . A.I.R 1922 Cal. 429. It has been asserted that the legislature, by the use of the expression “express or implied” in the proviso, intended to give effect to Abu Yusuf's view. Reliance has been placed upon the opinion of Niamatullah, J., in Irfan Ali v. Bhagwant Kishore . A.I.R 1929 All. 180 and upon the authorities referred to by that learned Judge in its support, and also upon the decision in the case of Ma E Khiji v. Maung Sein . A.I.R 1925 Rang. 71.

17. This extreme contention has been sought to be refuted on behalf of the respondents by arguments addressed to us on the lines of the reasoning of San, J., in the case of Irfan Ali v. Bhagwant Kishore already referred to. It has also been said on their behalf that this being a matter in which the opinions of Abu Hanifa and Muhammad are concurrent as against the opinion of Abu Yusuf alone, their opinions should prevail, as was held by the Bomhay High Court in a decision which was eventually upheld by the Judicial Committee in the case of Abdul Gafur v. Nizamuddin . [1892] 17 Bom. 1.

18. In the view that we have taken of the terms of the deed, a decision on this extreme contention is not really necessary. But as the matter has been argued before us with much care and learning we think it right to express our opinion on it, which is against the appellant. We are prepared to agree in the view expressed by the learned Judges of the Allahabad High Court in the case of Irfan Ali v. Official Receiver . A.I.R 1930 All. 837 where it has been said:

“Where a wakf contains no such express reservation the mere use of the word wakf cannot by itself be regarded as connoting an implied reservation of the ultimate benefit to the poor; for the word has been expressly used in S. 3 and yet the proviso has been added to it. Whatever might have been the previous state of the Mahomedan law on the subject, Act 6 of 1913 must be deemed to have settled the rule of law as laid down by that Act; the document cannot be valid as creating a good wakf unless and until it contains at least an implied reservation that the ultimate benefit from the property is to go to the poor or for a religious, pious or charitable purpose of a permanent nature.”

19. In addition to what was said in that case we may say that if the legislature intended, what the appellant contends for, nothing was easier for them to have plainly Paid so and further that to give effect to this contention would be to render the proviso practically nugatory, for there is hardly, if ever, a deed which does not describe itself as a deed of wakf and yet is set up as having created a wakf. In our judgment the effect rather than the language of the deed has to be construed, and from such construction it has to be seen whether an ultimate dedication of the character contemplated by the proviso is there expressed, and if not whether such a dedication may not be implied by its provisions.

20. The deed describes itself as “making a wakf and sadka in the way of God.” It begins with a recital that it was necessary to make a settlement

“according to law and Mahomedan scriptures-for the maintenance of my family and children and for purposes of pious works of charity provided for by me and for the benefit of the public and the poor.”

21. It states:

“Hence for the benefit at my own ahildrea and descendants of the Prophet as well as for my spiritual benefit as also for the benefit of the public and the indigent, I execute, etc.”

22. So far as language is concerned, it cannot be suggested that it was in any way deficient, or that anything more was necessary to be said in order to make it plain, for the purpose of conveying a declaration of an ultimate benefit for the poor. But as words used are not the only criterion and are not un-often deceptive, let us for a moment, examine the underlying scheme. It is an elaborate scheme, conceived and worked out with considerable Care and going into the minutest details and taking note of eventualities of the remotest character. It is next to impossible within the short space of a judgment to reproduce the effect of the scheme with anything approaching precision. The foundation of the scheme is the idea of formation of wakf fund out of which the directions of the settler as regards the expenditure for the purposes of the wakf are to be carried out. To the body of the document are appended 51 schedules: Sch. Ka is a list of properties; Sch. Kha, a list of income and expenditure of the estate; Sch. Ga, a list of expenditure for pious works or works of public good; Sch. Gha a list of premia etc., payable on account of certain life insurance policies; Sch. Una, a list of monthly household expenses and allowances payable for the maintenance of the members of the family and Sch. Cha is a list of yearly rents, revenues. As regards the properties they are 12 items in all classified in the body of the document, and of these items. 12 is a Calcutta property, all the others being mofussil property.

23. Item 1 consists of certain pucca buildings and residential houses which will be used by the settler's four daughters according to the disposition made by the muttawali for the time being, and if necessary also for the residence of the Secretary. Item 2 also a house newly built would remain in the occupation of the muttawali for the time being with the exception of certain portions which will be used as a guest house, or for the accommodation of poultry, cattle, goats etc., or for storage of firewood, etc. Provision is made, in case Badrul Alum marries a Mahomedan wife, for them and their children to occupy a portion of these premises. Item 3 is a two-storeyed building of which a portion is to be used as a kutcheri and another portion as a hall for holding public meetings for social welfare and for the improvement of agriculture. Item 4 is a khas tank with banks; No. 5 is a Khirki tank; No. 6 is a Sadar tank with an orchard adjoining; and No. 7 is another old Khirki tank. Detailed directions are given as to which of these tanks is to be used by which members of the family and which of them would remain under the management of the muttawali for the time being; and an important provision is made that if the muttawali for the time being desires to keep items 6 and 7 in his khas possession without letting them out, he would have to pay to the wakf estate Rs. 150 as annual rent for the same or else he would settle it with anybody who will offer the highest rent and the income derived from such sources will all go to the wakf fund. Items Nos. 8, 9 and 10 are orchards, etc., and they will be possessed by the settler's widow and daughters, but they will have to spend one-tenth of the income thereof in charity and will enjoy the remainder during their lives and on their death the whole of the income of these properties would go to the wakf fund. Item No. 11 consists of some plots of arable land for which the muttawali for the time being will make suitable settlements, the income therefrom going to the wakf fund. Item No. 12 is a Calcutta property which is likely to fetch Rs. 1,500 per year, but the settler as the first muttawali would be competent to dispose of it and purchase soma other property with a better income from the sale proceeds.

24. The total income from all the properties is assessed at Rs. 3,150 (details given in schedule Ka) and the total expenditure on account of rents, revenue, cesses, collection charges, rates and taxes, litigation charges, etc., is assessed at Rs. 1,015 (details given in schedules Kha and Cha), leaving a balance of Rs. 2,135 as the net income. The deed provides that out of this net income, the expenditures mentioned in schedule Gha (i.e payments on account of certain life insurance policies of the settler and of some other members of the family) will have to be first met, then the expenditure detailed in schedule Ga, (i.e on account of certain religious and charitable works, as regards the carrying out of which elaborate instructions are given in the deed with all possible care and circumspection) are to be defrayed, and thereafter the expenses specified in schedule Una (i e., certain sums fixed as household expenses and allowances for the widow, the son, the daughters and others and also the monthly allowance of the muttawali for the time being as also some other trifling expenses) will have to be paid out. The expenditures as per Schedules Ga, Gha and Una are Rs. 394-5-4, Rs. 429-8-0 and Rs. 1,284 respectively, aggregating Rs. 2,107-13-4. Deducting this amount from the net income of Rs. 2,135, which as shown in schedule Kha is the balance left after deducting the expenditures amounting to Rs. 1,015 from the gross income of Rs. 3,150, there is left an annual surplus of Rs. 27-2-8. As matters stood at the date of the deed therefore there was no apprehension of there being any deficit such as might stand in the way of the proper administration of the wakf.

25. It is also stated that a sum of Rs. 1,055, which would be obtained in June 1928 upon a policy on the life of the settler should be credited to the wakf fund and out of that amount food and clothes should be distributed for 11 years amongst the poor and the helpless for the spiritual benefit of the settler. Power is reserved to the settler as the first muttawali to take such steps as he may consider necessary for the better and more beneficial management of the wakf by granting mukarari leases for selling wakf properties and purchasing other properties for the wakf. But as regards succeeding muttawalis their powers are comparatively restricted and it is provided that such a muttawali would be combatant to form a committee with whose advice and assistance he should act in all important matters. For the guidance of himself and of his successors who would have to act as muttawalis the settler laid down certain rules, amongst the mora important of which are the following:

Preference is to be given, above all, to the expenditure mentioned in schedule Kha because that is necessary for the maintenance and preservation of the estate itself; and it is provided that if there be deficit in respect of such expenditure the muttawali would be competent to meat such expenditure by all means from the savings under other items or by borrowing from the moneys specified for the expenditure under the other schedules, and will subsequently repay the amounts so taken. It is provided that no muttawali or his heir shall be entitled to cairn any of the wakf properties by right of heirship or to transfer the same in such right, and if one does so he will lose his monthly allowance in addition to receiving such punishment as he may receive under the law. It is said that the monthly allowance for maintenance provided for will ennre for the period of the lives of the respective payaas, and

“after their death the muttawali for the time being with the approval of the committee will be competent to disburse the said amount under any item of this schedule (meaning schedule Una) or spend it on any item of pious act as per schedule Ga or apply it towards any work of improvement in regard to the estate.”

26. As regards item No. 1 of schedule Una (which is a sum of Rs. 420 par year or Rs. 85 per month that is to be spent “for the diet expenses of the Hafez or Alem and Moonshi and pupils and servant of the estate, except the members of the family”) it is said:

“If there is some saving from the amount under item 1 of schedule Una it will go to the fund of this wakf and the muttawali for the time being will, with the approval of the Committee, be competent to spend it on any of the items of pious work specified in schedule Ga for the benefit of the public…. Be it further stated that if there be any surplus under any item in schedule Una, it will be applied towards the expenditure on any pious work under schedule Ga or be spent on the walls, etc., round the tombs in the Sadar.”

27. It is repeated at another place in the deed in connexion with the other items, that is to say, the monthly allowance of schedule Una,

“And the said money will be spent likewise on any of the items of good works specified in schedule Ga. In other words, if there is any surplus under any item, it will be spent on the good acts specified in schedule Ga, or on the walls round the tombs in the Sadar and their improvements.”

28. The Subordinate Judga has held that in the deed there is no ultimate benefit reserved for the poor and this finding has been sought to be supported on behalf of the respondents by reference to: (1) the provisions in schedule Gha as to payment of premium on the Life Insurance Policies; (2) the provisions as regards allowances for maintenance in schedule Una; (3) the provisions as regards household expanses in schedule Una; and (4) the provisions referred to above which are to the effect that in case of surplus on the items specified in schedule Una, the same will be applied towards expenditure on the head of any pious work mentioned in schedule Ga or towards the improvement of the estate or on the walls of the tomb in the sadar which is a private tomb. Now as regards (1) and (2) the expenditures will not continue in perpetuity because no premia will have to be paid aftar the Life Insurance Policies have matured, and so far as the maintenance allowances are concerned they have been expressly made payable only during the lives of the respective grantees and not to their descendants with no power to them to transfer the same. As regards (3), though described as household or family expenses, they are really expenses connected with the due performance of the works of charity or of religious merit, beoausa sohadule Una itself states that

“the amount will be expanses for the diet expenses of the Hafez or Alem and Munshi and pupils and servants of the estate, if there be any, except the members of the family.”

29. Moreover, as regards this item which is item No. 1, Sch. Una, the deed provides:

“If there be some saving from the amount under item No. 1 of schedule Una it will go to the fund of this wakf and the muttawali for the time being will, with the approval of the Committee, be competent to spend it on any of the items of pious work specified in schedule Ga for the benefit of the public.”

30. As regards (4) what is said on behalf of the respondents is that, having regard to the direction in the alternative there will be nothing to prevent the muttawali from spending the whole of the surplus for improving the estate or on the walls of the private tomb and nothing to compel him to spend any part of the amount of such surplus for the purposes mentioned in schedule Ga. Reliance is placed in this connexion upon the case of Morice v. Bishop of Durham . [1805] 10 Ves. 522. and the later decision in Hunter v. Attorney General . [1899] A.C 309 in which that case was explained and approved and the contention, put tersely, is that as the muttawali will not be bound to apply the surplus for the purposes indicated in schedule Ga, but will have the option of spending it in improving the estate or on the walls of the private tomb, there is no ultimate dedication satisfying the requirements of the proviso to Section 3 of the Mussalman Wakf Validating Act, 1913. Now in the first place it may be stated that Mr. Ameer Ali (Vol. 1. Edn. 4, p. 414) and Mr. Tyabji (S. 481) are of opinion that Morice v. Bishop of Durham does not apply to wakfs, though Sir Ronald Wilson (S. 322) holds the contrary view. Nextly, let us examine the position for a moment. The improvement of the estate contemplated in the provision referred to would necessarily augment the income of the wakf fund the avowed object of which is to serve as an endowment for the benefit of the poor. The question whether maintaining a private tomb, as distinguished from the tomb of a saint is a religious, pious or charitable object or not is one on which there is difference of views; judicial decisions holding that it is not [Kaleloola v. Nusseerudeen . [1894] 18 Mad. 201 and Zoolekha Bibi v. Syed Zynul Abedin . [1904] 6 Bom. L.R 1058.] and Mr. Ameer Ali being of opinion that it is: see Mulla's Principles of Mahomedan Law, Edn. 9, S. 146. But let us assume that both these purposes are not such as would come within the words of the proviso:

“For the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character.”

31. Even then, the question is what is the true interpretation of the aforesaid directions in the deed? In our opinion, having regard to the opening words as well as the tenor of the deed the provisions in question should not be read as giving an option to the muttawali to spend the whole of the surplus in improvements of the estate or the walls of the tomb as an alternative to expenditure on the items described in schedule Ga, but that a more correct and reasonable reading of the provisions would be to take them as directing the muttawali to devote the surplus for the purposes indicated in schedule Ga, authorizing him and giving him liberty to use such amounts out of the surplus as, in his opinion, guided by the advice of the committee, may be necessary or desirable to be spent for the improvement of the estate and on walls of the tomb. A muttawali, upon the terms of the document, would not be held to be doing his duty if he were to incur useless expenditure out of surplus year after year in the guise of improving the estate or go on wasting year after year all available surplus quite unnecessarily on the walls of the tomb, and it is somewhat difficult to imagine that such conduct on his part would not be restrained at the instance of parties interested in the endowment. If he purchases properties with the surplus year after year, the wakf fund is swelled and that remains for the benefit of the purposes of the wakf itself. Besides, what is it that was meant by the expenditure on the walls of the tomb? It is sufficiently clear from the following passage in the deed that only the completion of an unfinished work was meant:

“In the Sadar portion of the house I have built a tomb for the members of the family, to the east of the mosque, and walls have not yet been erected around the same. This will have to be done, etc.”

32. The expenditure mentioned in schedule Gha will cease when the Life Insurance Policies would mature, as they would at no distant date; those detailed in schedule Una, except those of item No. 1 which are really connected with religious, pious or charitable purposes, must come to an end sooner or later with the end of the lives of the grantees. Thereafter there would hardly be a non-charitable or non-religious purpose to partake of the benefit of the wakf fund. In our opinion, the proviso to S. 3 of the Act is not contravened by the terms of the wakf, and, on the other hand, there is enough in them to justify us in holding that they do, by necessary implication at least, provide for an ultimate benefit for the poor and for purposes reoognizad by Mussalman law as religious, pious or charitable purposes of a permanent character.

33. In endeavouring to interpret the directions aforesaid we have not overlooked, but have, on the other hand, borne in mind, what has been said in the two cases referred to above upon which the respondents have relied. Sir William Grant in his judgment in the action in Morice v. Bishop of Durham . [1804] 9 Ves. 399. said:

“The question is not whether the trustee may not apply it upon purposes strictly charitable, but whether he is bound so to apply it. The answer to the question in the present case can only be that there is no such obligation. On the other hand, the other purposes to which conceivably the trustees may apply the whole fund in their discretion are not described with sufficient definition for the Court to attach any trust, upon them,”

34. On appeal in the same case, 10 Yes. 522 Lord Eldon said:

“The question then is entirely whether this is according to the intention a gift to purposes of charity in general as understood in this Court; such that this Court would have held the Bishop bound and would have compelled him to apply the surplus to such charitable purposes.”

35. In Hunter v. Attorney General, it was held that the case fell within Moriae v. Bishop of Durham, but Lord Shands proceeded to explain as follows:

“On the other hand it has been decided in cases such as Attorney-General v. Doyley . [1735] 7 Ves. 58n. and Salusbury v. Denton . [1857] 3 K. & J. 529., that where the trustees have a discretion to apportion between charitable and ascertainable objects non-charitable, the trust does not fail; but in default of apportionment by the trustees the Court will divide the fund between the charitable and non-charitable equally * * * A third class of cases was relied on by the Attorney-General of which Sinnet v. Herbert . [1872] 7 Ch. 232 and In re Douglas, Obert v. Barrow . [1887] 35 Ch. D. 472, are examples in which there is a general overriding trust for charitable purposes, but some of the particular purposes to which the fund may be applied are not strictly charitable, or one of two alternative modes of application is invalid in law. In such cases the trust is good, and the Court will give effect to the general charitable trust, but the trustees are restricted from applying the fund to the purposes or in the manner which are objectionable. But in my opinion, these cases have no application to that before your Lordships, because, as I have already said, I think that there is not here any general “trust for charity binding on the whole fund.”

36. In our opinion a general overriding trust for the purposes enumerated in schedule Ga is expressed by the dead or at any rate arises upon its terms by necessary implication, and the case falls not within Morice v. Bishop of Durham, but may rather fall within the second or the third class of cases, specified in the judgment of Lord Shands.

37. Nextly on the question of the operative character of the wakf, the findings of the Subordinate Judge have already been, summarized above. On this point also another extreme contention has been urged on behalf of the appellant. In substance it is this: that the deed being in form the question whether it was meant to be operative or not, cannot arise. Several dicta from text-books have been cited as supporting this proposition, and the decision in the case of Kulsom Bibee v. Golam Sossein Gassim Ariff . [1905] 10 C.W.N 449. has also been relied on. The relevant portion of the judgment of Woodroffe, J., in that case runs in these words:

“So here there is no dispute that the documents were executed and registered and I find that if possession is necessary it was given. If that document creates a trust for the public and if (point with which I will next deal) that trust is the primary object of the settler and of a substantial character it appears to be quite beyond the power of the settler or of those claiming under him to say, I have said I have made a trust but I never intended one and thus to wrest from the third party, the public, the benefit which by the express terms of the dead he has bestowed upon them. In my opinion, therefore, the evidence given to show that it was never intended to give effect to the trust and that in fact they were not given effect to is in this case irrelevant.”

38. The words in italics are important. To what was thus said no exception can possibly be taken, because the learned Judge meant to confine his observations to the case before him, in which having found that a wakf was in fact created and acted upon by the settler himself by delivery of possession, if such was necessary, he was not prepared to allow the settler or those claiming under him to turn round and say that the wakf was not intended to be operative. The head not of the report runs in these words:

“The intention of the settler must be gathered from the document itself. If the wakf was formally constituted and perfected and established by its teiras a substantial charitable trust, it is wholly immaterial whether its provisions were carried out or not, for that is a matter of breach of trust only. Evidence given to show that it was never intended to be given effect to the trusts, and that in fact they were not given effect to is irrelevant in such a suit.”

39. The proposition must be read as applicable to such a suit, that is to say, in which it was found that a wakf was created and perfected and a substantial charitable trust was established by its terms. Confined in its application to a case of that nature the proposition is perfectly harmless because all that it means is that if a wakf far from not being intended to be acted upon has in fact been acted upon by the settlor himself and a valid trust, perfect and complete has been established the settlor or persons claiming through him cannot turn round and raise the question of intention. The case in our judgment, is no authority for the contention which the appellant has advanced. In our opinion if the Mahomedan law really supports the proposition which the appellant contends for the proposition is merely enunciative of a rule of evidence which must be taken to have been abrogated by virtue of Section 2 of the Evidence Act, an anxiety to restrain settlers or persons claiming through them from resiling from transactions of this nature solemnly entered into by them is perfectly understandable; and for that reason the more perfect is the declaration in its form, and the greater the solemnities with which it is intended, the lesser is the chance of success of an attempt to resile from it. But as a proposition of law or a matter of principle it is difficult to see why it should not be open to a settler or persons claiming through him to show that the declaration was in reality no declaration at all, or that while the declaration was made with all its attendant solemnities there were circumstances showing that the whole transaction was intended to be unreal or fictitious. We are therefore of opinion that the intention of the settler may sometimes have to be inquired into in order to make out whether the wakf was a real one or not and that for the purposes of such an inquiry facts and circumstances showing or suggesting that it was never intended to be acted upon are relevant. The question whether in fact it was acted upon or not is not relevant except as a means of or by way of a step for determining that intention; in other words, if the intention that it should be operative is established, the fact that it was not acted upon even by the settler himself would not detract from its validity in the least, but would be only evidence of a breach of trust on the part of the settler. In the case of Debendra Nath Sadhukhan v. Noharmal Jalan . A.I.R 1930 Cal. 673 at pp. 499-500, it hag been said:

“According to Abu Yusuf whose tenets hold the field as far as Bengal is concerned [Jinjira Khatun v. Mohammad Fakirulla Mia*] the wakf becomes absolute and binding on the mere declaration of the wakif, and on such declaration being made his right in the property which forms the “subject-matter of the declaration becomes extinguished at once. It may, however, be that the declaration is equivocal or there may be circumstances suggesting that it was not meant to be operative; and in such a case to see whether that was so or not the conduct of the wakif himself and other circumstances, if attendant and not subsequent, may be examined.”

40. The respondents have contended, by the way, that the above proposition requires a slight modification because in the case of Mohammad Ali Mohammad Khan v. Mt. Bismillah Begam . A.I.R 1930 P.C 255 their Lordships of the Judicial Committee looked into the subsequent conduct of the wakif as well.

41. It will however be seen that such subsequent conduct was merely in continuation of a ad of a piece with his conduct at the time of the deed and ever afterwards, namely that he never at any time acted up to its terms, conduct from which an intention could be gathered that the deed was not to be operative. The respondents have relied upon this decision of the Judicial Committee for another purpose also. They desire to use it as an answer to the appellant's contention that on a declaration of dedication being made it is not open to the settler or persons claiming through him to raise the question of intention, but on that point the decision would not be of much assistance to them because the case before the Judicial Committee was one in which the question of intention was raised by a creditor who obviously stands an a different footing from the settler himself or persons claiming through him. A. creditor is not bound by the declaration, while the settler himself or persons claiming through him are so bound; and treating the declaration as an admission they must explain it in some way or other in order to get rid of its effect. Besides as pointed out in the case of Bismilla Begam v. Tahsin Ali Khan . A.I.R 1930 All. 462 on a discussion of the authorities bearing on the subject, that there is no rule of Mahomedan law which allows a person involved in debts to make a wakf of his property to defraud his creditor, and that under the Mahomedan law the Kazi had the power to make a debtor pay all his debts before the Kazi could maintain the wakf, A creditor therefore is always entitled to show such intention while there may be insuperable difficulties in the way of the settler himself or persons claiming through him to plead their own fraud and adduce evidence in support thereof. However that may be it is unnecessary to pursue this discussion against the respondents' contention any further, because we have already expressed our view in their favour that the question whether the wakf was intended to be real or fictitious can arise and has therefore to be decided.

42. To begin with the terms of the deed, there is no ambiguity or equivocation anywhere in it. No words can be plainer than these:

“Whatever right, title and interest I had in the properties described in Schedule Ka aforesaid shall cease from to-day. I shall never be entitled to claim the said properties as personal properties, nor shall any heir of mine claim the same by virtue of inheritance. Neither I not after my death any successor of mine shall ever be entitled to transfer the said properties by sale, gift or otherwise or create any charge upon the same; nor shall the same be liable to be sold for the debts of any of my heirs.”

43. But two passages in the deed are relied upon on behalf of the respondents as suggesting the unreal character of the transaction. One of these immediately follows the quoted passage and is in these words:

“Further only during my lifetime and for the improvement of the properties covered by the deed I shall be entitled to dispose of or grant a long ijara or mukarrari lease of the house at 63 Taltolla Lane, Calcutta, and the land underlying the same, and of my land in the villages under Thana Haripal and purchase some other properties, and after purchasing out of the sale-proceeds or money arising therefrom and for the benefit of this estate make a wakf of the same in place of the properties sold, as appertaining to the said estate. After me however no other muttawali shall have any such powers.”

44. In this passage right is reserved to himself as muttawali to act in the manner indicated and for the benefit of the wakf estate. In our opinion so long as it has not been shown that the settler disposed of properties and did not replace them, no inference against the wakf itself can legitimately be drawn from the mere fact that such powers were reserved. The other passage on which reliance is placed in this connexion runs thus:

“With regard to the khas tank, gardens and trees, etc., included in the wakf…. I shall be able to make any arrangement that I may think proper during my lifetime.”

45. It cannot be reasonably contended that by this reservation the settler meant to retain in himself the proprietary rights which he had expressly relinquished at the commencement of the deed. All that it means is that he, as muttawali will make such suitable arrangements as he may find it necessary to make and that so far as this matter is concerned he, as the settler was not prepared to give any hard and fast direction to himself as the muttawali. In our opinion there is nothing anywhere sin the deed itself to raise the faintest suspicion against the transaction evidenced by the deed.

46. Nextly, it has been urged on behalf of the respondents that what was alleged by them in their plaint, as amended, as regards Badrul Alum, has been substantially established and that therefore it is apparent that there was a good motive on the part of the settler to create-a fictitious deed just to keep Badrul Alum in check and by that means to bring him round if possible. We however do not see why because the allegations which the respondents made against Badrul Alum have been proved, an inference adverse to the bona fides of the transaction should necessarily be drawn: the facts proved, in our opinion would on the other hand, afford a very strong motive on the part of the settlor to create a real wakf of the present character. By this wakf he was ensuring, the preservation of the properties, giving a chance to his son to mend himself, providing that in case he did so he would be competent to come in and act as muttawali and get his remuneration as such and also making provision for the residence of his son's Mahomedan wife should the son care to have one, and their children. It has been said that he could on no account cut his only son off with such a pittance as he did by the wakf. But the mind of the settler is transparently visible in the terms of the wakf. He was hoping with all his heart that his son would come round. He expressed himself thus towards the end of the deed:

“In the sadar portion of the house I have built a new tomb for the members of my family to the east of the mosque, and walls have not yet been erected, around the same. This will have to be done from the savings under any item of the schedules. If I fail at make any arrangement for the erection of the said wall during my lifetime, it is my hope and strong belief that my only son Badrul Alum, who is an able man, will maintain and illumine the came of this family by managing everything satisfactorily like myself and maintaining in the proper way the works of charity instituted by me and his mother in preserving and adorning the mosque established by my paternal grandfather after my death.”

47. For the accommodation of his son should he care to marry an Indian Mahomadan lady and of their children he provided in the deed a suite of excellent apartments in the first and second floor of a newly built marble floored house which he had built at great cost. Badrul Alum would get, should he reform himself in the manner wished for by his father, Rs. 360 a year i.e Rs. 30 per month and this the father thought would be supplemented by Badrul Alum's own income in the profession, he being, according to his father, a very able man. Should he persist in his old ways he would get only Rs. 180 per year, presumably as bare maintenance; and even that amount he may not like to accept as the father had reasons to apprehend, and for that the father would not be sorry, for against this item in Schedule Una appear the remarks:

“I have spent large amounts for him. If he is unwilling to take this allowance then (….) will get it.”

48. The punctilious care with which even the minutest details are dealt with forcibly points to the fact that the settler meant business and that it was not a sham transaction that he was recording. In our judgment there is really nothing tangible in support of the view that the transaction was made to serve as a threat for the son, but all the circumstances of the transaction are indicative of a genuine desire on the part of the settler to make the best possible arrangement in order to guard against the properties being squandered away and to perpetuate the works of charity and religious merit that he had inaugurated and at the same time ensure that those who were near and dear to his heart were not in actual want. Several cases have been cited before us asking us to hold in favour of the respondents' contention, but it is unnecessary to refer to them as the terms of the deeds in these cases bear no comparison with the deed in the present case. The one upon which the respondents rely moat is the case of Amiruddin v. Mau-zaffar-ul-Hasan . A.I.R 1923 All. 55. That however was a case in which the document purported to be a wakf in praesenti and yet provided that the wakif should be the first muttawali with power to apply the income of the dedicated property to her own use so long as she was alive and also power to sell or mortgage the same during her lifetime and it was held that it was not a valid wakf. The case is obviously different.

49. Nextly, the respondents have endeavoured to show that the wakf was not acted upon even by the settler himself. The accounts of the administration are not forthcoming and we are not in a position to see to what extent the settler himself was giving effect to his declarations. The explanation offered for their non-production also is, in our opinion, not very convincing. We are therefore inclined to hold that if produced they would perhaps have shown that the settler was not strictly carrying out his own directions in the deed. It is also true, as the Subordinate Judge has pointed out, that certain properties were-dealt with by the settler shortly after the execution of the wakfnama as if they were still his own (vide Exs. 2, 3, 4 and 5), and in the absence of any evidence documentary we must hold that there is-nothing to indicate that the proceeds of the transactions were credited to the wakf fund or applied for the purchase of other properties for the wakf or for other purposes of the wakf. It is also a fact, as appears from the documents Ex. 8 that the settler did not get his name mutated as muttawali in respect of the Calcutta properties so long as he was alive; we have no evidence on the point as regards the mofussil properties. This is all that the respondents have been able to show, and it must be conceded that if there was nothing much to the contrary it would not be an unfair inference to draw from these materials to hold that the wakf was not acted upon by the settler. But certain matters have been proved to the contrary on behalf of the appellant.

50. As regards the documents proved on behalf of the appellant, those that came into existence subsequent to the suit by the settler's daughters against Badrul Alum in 1924, to which reference has already been made, they are not of much assistance, seeing that when Badrul Alum thought of resisting that suit on the basis of the wakf he must have hastened to put all documents in order, so that they might support his case that the wakf was being acted upon. The documents and papers of the settler's time, therefore are really the materials which require consideration for this purpose. Amongst these the papers of the estate may first be referred to. They are the thokas (Exs. E and E-5) and dakhilas (Ess. E to E-5 and Exs. G to G-3). So far as these papers are concerned, we are unable to differ from the adverse view which the Subordinate Judge has taken of them. An examination of these papers has produced a very unfavourable impression in our mind as regards their reliability and we have little doubt that the word muttawali,” wherever it appears in these papers, is a subsequent interpolation. These papers lead us to the inference that during the four years or so for which the settler lived since he created the wakf, he was not very particular in observing the distinction that there was between his new position as muttawali under the wakf and his old position of a proprietor that he was before he created the wakf. But there are certain other materials which unmistakably show that, notwithstanding all irregularities in his conduct in relation to the wakf it was the wakf that was being administered by him. Of these materials those that require mention are the following: Firstly, Ex. B the registered am-mukhtearnama executed by Bazlul Karim in favour of Khodadad Hossein dated 25th April 1921, nearly a year after the wakf was created. In this document the settler stated that he had executed a wakf and had since then been in possession of the properties covered by it as muttawali and that he was appointing the said am-mukhtear for the proper conduct of all litigations, collection and payment and other affairs of the said wakf estate, and giving him full powers to undertake and complete all works beneficial to the wakf estate subject to the approval of certain gentlemen named in it. This document was executed, as appears from the recitals contained in it, because the settler had grown old and was in ill health and was contemplating a change and a visit to holy places. It will not be out of place to mention here that it was on the strength of this am-mukhtearnama that Khodadad Hossein admitted execution on behalf of the settler, for the purposes of registration, in respect of the documents Exa. 3, 4 and 5 spoken of above. Secondly, Ex. 7, the registered deed of revocation executed by Bazlul Karim on 18th July 1923. In this document, more than three years after the wakf had been created the settler, far from repudiating it as fictitious or inoperative spoke of it in these terms:

“On 30th April 1920, I had executed a deed of wakf or settlement deed for the benefit of the public and my heirs and got it registered. Now I believe that those of my heirs who are still living shall after my death, waste the wakf properties out of cupidity and selfish motives and shall frustrate my object. On these considerations I think it absolutely necessary to revoke the same. X hereby revoke the same altogether. From this day, no one shall have any right, title or interest under the said deed. Be it further stated that the said deed of wake for the benefit of my children being rejected, the properties noted on the back shall still remain in the same condition as they did before, and no one had, has or shall have any right to or concern with the same. Be it also noted that the said deed of wakf for my children being rejected I believe my object will be fulfilled if my estate be placed in the hands of benign Government, and for this reason I have made a proposal to place in the hands of Government, all my properties situated in my native village and in Calcutta for the benefit of the public.”

51. Far from saying that he had no intention to create a valid wakf, he repeated that it was for the benefit of his heirs and of the public that he had created it. He was anxious to revoke the wakf in so far as it was for the benefit of his heirs, and professed to maintain the other purpose, namely, the benefit of the public and was taking steps to place his properties in the hands of the Government so that, that purpose might not be frustrated, but on the other hand might be achieved. Ear from suggesting that the wakf remained inoperative or had not been acted upon by himself he was declaring that no one shall have any right, title or interest under it as from the date of the deed of revocation. This deed of revocation, in our judgment, is in the nature of a settler on the question which the respondents have raised as regards the operative character of the wakf. It remains now to consider the other two questions on which the findings of the Subordinate Judge were against the appellant as already observed. The first question is whether a daughter of Badrul Alum, other than defendant 5, has been left out of the suit. This objection was not taken by the appellant in her written statement. After defendant 5 was added as a party to the suit she on 24th February 1930, filed a written statement in which amongst other pleas, taken on the lines of those of the appellant, she alleged that the eldest daughter of Badrul Alum who was a minor living with her mother Mrs. Katherine Alum in England had not been made a party to the suit and so the suit was defective for want of parties. No issue however was framed on this pleading and the appellant who had been examined on commission before that date had not said anything on the point. When plaintiff 2 was examined-in-chief he while giving the genealogy of the parties stated;

“Katherine Alum was in England; she left India with a daughter of hers by another husband.”

52. On this an application was made on behalf of defendant 5 asking for permission to cross-examine plaintiff 2 on the aforesaid statement. This application was refused by the Subordinate Judge. The appellant has complained that this order of refusal has prejudiced the defence as it has precluded them from proving that the suit is bad for defect of parties by reason of the omission on the part of the plaintiff to implead this elder daughter of Mrs. Katherine Alum as a defendant in the suit. The Subordinate Judge has found thus:

“Katherine Alum went to England with another daughter of her husband and she is not the daughter of Badrul Alum and she is not a necessary party and this objection was not specifically taken in the defence.”

53. The conduct of the defendant in not raising a specific issue on the point and that of the appellant in not mentioning the matter in her written statement or in her evidence taken on commission strongly suggest that the objection has no substance or at any rate that they were not keen on pressing it, and this would afford sufficient justification for the order of refusal which the Subordinate Judge passed on the application of defendant 5 for the cross-examination of plaintiff 2 on the point. As regards the correctness of the finding itself, there is some support for it in the evidence, while on the other hand there is a statement in the wakfnama about the matter which may perhaps be interpreted as meaning that the daughter with whom the lady left for England was a daughter of Badrul Alum. As there has been no proper investigation of the question we think it right not to affirm the finding of the Subordinate Judge on the point and would leave the matter undecided. In any event, even if there has been a defect of party on this ground, the suit should not on that account be dismissed; but the only result of that defect should be that the party left out will not be bound by the decision that is arrived at in her absence. The other question is whether the moveables in suit belong exclusively to the appellant. The existence of these moveables is sufficiently proved by the list Ex. 6 prepared by a pleader commissioner in the suit of 1924. The previous deposition of the appellant in a suit of 1926 (Ex. 11) makes it reasonably plain that the appellant could not have such moveables of her own. Again neither she nor any of her witnesses has said anything very convincing in the present suit as regards her exclusive right to the moveables. In such circumstances we must, in agreement with the Subordinate Judge, hold that the appellant has failed to make out her case on the point, while, on the other hand, having regard to the places they were in, they must be taken to be joint property. The result is that, in our opinion, the plaintiffs cannot have a decree for partition as regards the immovable properties in suit. The appeal therefore will be allowed and the decree of the Court below in so far as it directed a partition of the immovable properties, will be set aside and the plaintiff's suit, in so far as it relates to those properties will be dismissed. The rest of the decree made by the Court below will stand. The appellant will be entitled to her costs in this appeal, hearing-fee being assessed at 15 gold mohurs.

54. The Rule is discharged. There will be no order as to coats in the Rule.

Guha, J.:— I agree.

K.N/R.K

55. Rule discharged.