1. The question which arises in this second appeal is whether the disposition of property contained in a document executed by two Mahomedans of the Hanafi sect, Ahmed Nayna Marakayar and Hussain Kuthu Sahib, is valid according to Mahomedan Law. The deed Exhibit I begins with a recital that the property consisting of two villages of the total value of Rs. 20,000 is given for the purpose of charity and then states that out of the gross yields the melvaram, repairs, salaries for servants, maganam, and other important expenses are to be defrayed and the balance of the income is to be divided in 3 shares. From 2 shares out of the 3 shares of the income the Dharmakartas or trustees appointed by the deed and their successors are to take Rs. 10 per mensem as salary for discharging their duties, and as regards the remainder of the two shares, the direction to the trustees is as follows.--"You should perform annually without failure the customary (not "the annual" as wrongly translated in the paper book), Pattah (meaning Fateha), Kuthum (meaning Khatam) etc. for our ancestors and for us after our decease. You should annually give in the month of Ramzan to mesakins or the poor ojinam i.e., food, udumanam, i.e., clothes, sadaka meaning alms, jagath, etc. The surplus should be divided in equal shares once a year by our heirs or their sons, grandsons in existence from generation to generation inclusive of you." The 3rd share of the income after paying the expenses is to be "utilized in purchasing other immoveable property which is to be added to the said charity properties and dealt with according to the above terms," and if in any year no immoveable property is bought with the one-third of the net income, the amount is to be added to the two-thirds and "divided according to the above particulars." Two sons of the two executants were appointed Dharmakartas or trustees of the deed and it is provided that their successors should be male members of the family not exceeding 3 in number; the heirs of the donors should be entitled to call upon the trustees to render proper account of the management and to remove such of the trustees as may be guilty of mismanagement and appoint competent men in their place. The Dharmakartas and the successors, the heirs, and the descendants are not to receive more than the shares allotted to them out of the income and they will not be entitled to alienate the properties nor will the properties be liable for their debts. Such is the tenor of the deed, but before considering the question bow far the disposition is valid, we ought to mention that as found by both the Courts below the two executants of the document at the time of its execution were in solvent circumstances and owned properties of considerable value besides the two villages and that the gift in question was not made to defeat creditors.
2. In the deed itself the word "wakf" does not occur, but as the entire scheme of the disposition is to "tie up" the property in perpetuity by prohibiting alienation of it, it can only be upheld if at all as a wakf. The Mahomedan Law recognises another form of gift to charity called sadaqah, the only important distinction between it and wakf being that by sadaqah not only the beneficial interest but also the legal estate is passed to the particular charity to be held by the trustees appointed by the donor. In a wakf the legal estate or "ownership" is not vested in the Muttawalli or trustee but is so to speak transferred to God. The trustees or the beneficiaries of a wakf, therefore, are not authorised to alienate the wakf property unless especially authorised by the settlor or with the sanction of the Court in cases of necessity, and except in very especial circumstances the corpus of the dedicated property must be left intact and only the income can be devoted to the designated charitable purpose. On the other hand, when property is given by way of Sadaqah to some charitable object, the corpus itself or its equivalent, if the trustees find it proper or necessary to sell the property given in sadaqah and to convert it into some other form of property, and not merely the income is to be devoted to that object. The question, therefore, is whether a valid wakf has been created by Exhibit I.
3. One of the objections urged against its validity by the learned vakil for the appellant, who as a judgment-creditor of the executants of Exhibit I attached the property in execution of his decree, is that pattah or fateha, one of the objects of the gift, is a superstitious use not countenanced by the Hanafi canon law. As found upon the evidence which agrees with the general practice prevalent among Mahomedans in India, the ceremony of fateha consists in distribution of alms to the poor, accompanied with prayers for the welfare of the souls of deceased persons, either the prophet or other saintly personages in Islamic history or the donor's own ancestors. One would require very clear authority for the proposition that rites like these are condemned by the Mahomedan religion as superstitious, and we have not been referred to any such authority nor are we aware of any. Reliance is, however, placed on behalf of the appellant on the case of Kaleloola Sahib v. Nuseerudeen Sahib (1894) I.L.R. 18 M. 201 but there the main object for which the property was dedicated was of a very different character. It was "for the daily, monthly, and annual expenses of the afroesaid mausoleum (the tomb of the donor's husband) such as lighting, frankincense, flowers and salaries of the repeaters of Koran and readers of benedictions, &c, as well as for the annual fateha ceremonies of the deceased and after my death for my annual fateha ceremony." So far as it can be gathered from the report, fateha ceremonies and the reading of the Koran were to be performed at the tomb of the donor's husband and thus the learned Judges say in their judgment: "In the absence of an express authority showing that the dedication for ceremonies at a private tomb--and for that purpose only--is valid under the Mahomedan law, we do not think we ought to uphold the deed. It creates a perpetuity of the most useless description which would certainly be invalid under English Law;" and in another part of their judgment they state that "the result of an investigation of the authorities seems to be that endowments purely for purposes like the present seem to be against the principles of Mahomedan Law". We are not called upon in this case to determine how far the performance of ceremonies such as those mentioned in I.L.R. 18Mad. is in accordance with a proper interpretation of the texts of Mahomedan law or with the spirit of Mahomedan religion, the general aim of which undoubtedly is to avoid even the semblance of all idolatrous and superstitious practices. On the other hand the fact cannot be overlooked that for a very long time in India the custom has been largely prevalent of erecting mausoleum over the remains of men of reputed sanctity and for endowing property for their upkeep and for performance of religious ceremonies at such tombs, and such endowments have been recognised by the Courts as valid under the designation of durgahs, asthanas, khankahs, &c. It may be said, as is no doubt the opinion of Collins, C.J. and Parker, J. in Kaleloola Sahib's case (1894) I.L.R. 18 M. 201, that the Courts should not extend their recognition to endowments in connection with tombs of persons other than saints; but at the same time it can be argued that no line of distinction can be drawn on grounds of Mahomedan religion between the two cases. It is not, however, necessary for us to express any decided opinion on the point raised in Kaleeloola Sahib v. Nusurudin Sahib (1894) I.L.R. 18 M. 201. We are of opinion that the performance of fatehas, which so far as it involves the expenditure of any money consists in feeding the poor, is a valid object of wakf.
4. The most material question is, is the wakf illusory within the meaning of the Privy Council rulings in Mahomed Ahsanulla Chowdhry v. Amarchand (1889) I.L.R. 17 C. 498 and Abdul Fata Mahomed Ishak v. Rasamaya Dhurchowdhri (1894) I.L.R. 22 C. 619 and confirmed in a series of cases afterwards. The effect of the Privy Council decisions seems to be that wakf in Mahomedan law is a gift of property for charitable or pious purposes : that in this connection 'charitable,' 'pious,' Or 'religious' purposes must be understood in their ordinary and natural meaning, i.e., in the sense analogous to that of the English law. Aggrandisement of the donor's family or protection from poverty of the donor's descendants without any limit of time is not a charitable and pious purpose as contemplated by the Mahomedan law of wakfs; and a gift for the benefit of a man's own family, telatives or descendants is not charitable nor pious within the meaning of the law of wakfs. That a gift to charity would be deemed to be illusory if the provisions of the deed show that such gift is not to take effect, if at all, until after an indefinite period of time while those who are really meant to be benefitted are the donors's relatives and descendants to the remotest degree and that in such a case general expressions of piety and of charitable motives on the part of the donor are to be treated as a mere cloak to hide the real nature of the transaction. But it is not an objection to the validity of a wakf that some provision is made in the deed of wakf for the benefit of the donor's family, provided such provisions are not inconsistent with the gift being one substantially for charity, and this question has to be decided in each case with reference to the terms of the particular deed. If the provisions for the donor's children and descendants in a deed purporting to be by way of wakf exhaust the bulk of the income and are to last for an unlimited period of time, such a wakf would undoubtedly be illusory. Nothing more definite can be deduced from the authorities. Is the gift to charity properly so called in this case, therefore, a mere make-believe? What is pointed to in support of this contention of the appellant are the provisions that the proportion of the income to be devoted to charitable purposes is not fixed so that the trustees are at liberty to devote only a nominal portion of the income to these purposes and thus make the bulk of the income available as surplus for the benefit of the heirs; that the donors intended this result is to be inferred from the fact that the trustees are to be appointed from among the heirs, and the heirs are authorized to call upon the trustees to render accounts, while outsiders are given no such authority. But we do not think that this is a fair interpretation to put on the deed. The intention, so far as it is expressed, apparently is that the charitable objects mentioned are in the first place to be benefited and if any surplus is left it is to be divided among the heirs whom also the donors, though no doubt wrongly, supposed to be proper objects of the gift. The non-ascertainment of the proportions in which the different objects are to be benefited leaves it to some extent to the discretion of the trustees to determine the amounts to be spent on each object. But does the discretion extend so far as to enable them not to give any portion of the income or merely a nominal amount to any particular object or objects mentioned. There is nothing in the deed which would justify us in saying that the trustees were meant to have such unfettered power; and the donors must therefore be presumed to have intended that the trustees should treat the different objects of the donors' bounty according to the rate provided by law in such cases, viz., by dividing the income equally among the several objects mentioned. We do not think that the provision for the selection of the trustees from among the heirs of the donors, which is an usual provision in deeds of endowment in this country and the fact that power is conferred on the heirs who are given an interest in the settlement to call for accounts from the trustees--not that members of the general public or the Court are excluded by anything in the deed from interference in case of mismanagement--are sufficient to indicate that the real intention of the donors was other than what is expressed. And we may say that, in our opinion, the salary provided for the Dharmakartas is not unreasonable and the direction to accumulate one third of the income is intended for the benefit both of the charitable purposes mentioned as well as the heirs.
5. What then is the rule of Mahomedan law applicable to a case in which the donor mentions several purposes as objects of his bounty and one of those purposes fails? The rule is that if in such a case a general intention can be gathered of dedicating the property to charity the entire property is to be devoted to the lawful objects of wakf, if any, mentioned in the deed, and in the absence of any such object being specified, to the poor, whether a definite portion of the income has been set apart for the object which fails or not. The expression of a general charitable intention need not be in any particular form of words and in this connection it should be borne in mind that in the cases about to be cited from the writings of Mahomedan Jurists, the words 'wakf,' and 'sadaqah' in their different grammatical forms are used merely because these phrases are in common vogue as denoting ideas of perpetuity and a general intention to give to charity. In its literal significance the word 'wakf' means 'detention' or 'tying up', and the word 'sadaqah,' which is generally translated by English writers on Mahomedan law as 'charity'or a 'charitable purpose,' when used by the Mahomedan Jurists in the sense of the Mahomedan Canon Law, comprehends any act which is capable of conferring spiritual benefit on its doer if it is done in the hope of acquiring such spiritual benefit. In Fit hul Quadir, a well known commentary on Hedayah and a work of great authority on all questions of Hanafi Law, it is laid down "If a man makes a wakf for Zaid and the poor, and Zaid does not accept the gift, the wakf will be for the benefit of the poor; and similarly if ft is for Zaid and Omar and Omar refuses the gift or it appears that he was dead, his share will go to the poor" and later on "if the donor says 'for the needy among my children' and be has but one needy child, that half the income will go to the child, and the other half to the poor." (See Vol. V, pp. 451, 452 Egyptian Edition). Qadhi Khan, a jurist of the highest authority, says in his Fatawa : " If a man says,'this house of mine is wakf by way of sadaqah or sadaqah by way of wakf and no more, this is valid according to Abu Yusuf, Mahomad, Hilal-ul-munaaz, (may God's blessings be on them), and it will be a wakf for the benefit of the poor" and further on "if he says 'this land of mine is sadaqah by way of wakf for A' it will be valid and the gift must be construed as if the donor had said 'this is sadaqah by way of wakf for the poor', because the primary object of sadaqah is the poor but the produce will be for A so long as he lives; and similarly if he says 'this is sadaqah by way of wakf tor B in perpetuity' or says 'for my children in perpetuity' the answer in that case also is the same". (See Qadhi Khan, Vol. III, Bulaq Edition, printed in the margin of Fatawa-Hindia on Alamgiri). In Bahrur Raiq, a book of accepted authority among Hanafis, it is stated: "And if he says 'this land of mine is sadaqah by way of wakf upon Abdulla' and Abdulla does not accept the gift the wakf is valid and the produce will go to the poor". Then later on it is laid down: "And if he (i.e., the donor) says it [i.e., the wakf) is for Zaid and Omar as long as they shall live and after them for the poor and Zaid accepts the gift but Omar does not, then Zaid will have half the produce and the other half will go to the-poor" (See Bahrur Raiq, Vol. V, p. 215 printed at the press). In Al-Isaaf, among the cases cited on this point are the following: "And if he (the donor) says ' it (i.e., wakf) is for my sons' and he has two sons or more the whole of the produce will be for them--and if be has only one son that son will be entitled to half the produce and the other half will be for the poor" and "if he says 'it is for my sons' and he has daughters only or says 'it is for my daughters' and he has sons only, the produce will go to the poor and they (i.e., the sons in one case, and the daughters in the other) will get nothing " and if he says ' I have made this my land wakf for my child and the residue for the poor' and the child dies, Abul Kasim (a well known Hanafi Jurist) says "the produce will be spent on the poor..." "and if a man makes wakf for his children and descendants in perpetuity as long as the generations last, then after them for the poor and he has no child, the produce will go to the poor and if a child be born to him the produce will be given to the child and descendants and on their termination to the poor." (See Al Isaaq; Egyptian Edition; pp. 96, 97 and 99). It would be easy to multiply cases from the original authorities in support of the principle which, in our opinion, governs this case, but we think it will be sufficient to quote one more passage, and that from Baille's Digest of Hanafi Law which, as is well known, is a compilation from Fatawa Alamgiri. It is laid down (see page 609, 2nd Edition): "If a person should make his land a sadaqah appropriated--Mr. Baillie, it should be remembered, translates the word wakf as appropriation--for Abdulla and Zeyd, the produce is for both. When both die the whole is for the poor, and when one of them dies his half is for the poor. In like manner when a class of persons (Kowm) is named, the produce is to be divided according to the number of heads; and if one of them dies, his share goes to the poor and the remainder to the survivors."
6. In the above cases the failure of the particular gift which then lapsed into the residue lor the benefit of the poor or of the other objects mentioned in the deed was due either to the death of the individual for whom the benefit was intended or his refusal to accept the gift or to non-existence of the designated class. But it can make no difference in principle to what the failure is due, and the result must be the same where the gift to one of the objects mentioned in the deed fails by reason of its not being a proper object of such disposition of property. In the present case the benefaction intended for the heirs of the donors would fail because, according to Mahomed an law as applicable to British India, such a provision does not properly fall within the scope of wakf although the Mahomedan Jurists might have thought otherwise. We must, therefore, hold that the wakf is valid and the income of the property is to be devoted for the benefit of the objects mentioned in Ex. I other than 'the heirs' of the donors. We may also observe that as the gift under Ex. I should, in our opinion, be upheld as a valid wakf, the provision for accumulation which would thus enure solely for the benefit of charitable purposes, cannot be said to offend against the law prohibiting perpetuities.
7. We dismiss the appeal with costs.