Glovir, J., (who, after stating the facts, continued):— The first point we have to consider is her objection that this was not a case coming under Act XX of 1863, and that the Judge had no jurisdiction to try it.

Now Act XX of 1863 was passed, as appears from its preamble, to relieve the Boards of Revenue and local agents of the duties imposed upon them by Regulation XIX of 1810, which Regulation so far as related to endowments for the support of mosques, Hindu temples, or other religious purposes, was by it repealed. The endowments, & referred to in the Act, ss. 3, 4, 5, are declared to be the same as those to which the Regulation of 1810 was applicable, and s. 16 of that Regulation specifies the kind of endowment which should be made subject to its control and supervision. The words of the section are:— “It is to be clearly understood that the object of the present Regulation is solely to provide for the due appropriation of lands granted for public purposes” Was then the tauliatnama executed by Delroos Banoo Begum an appropriation of lands for pnblio purposed, so as to bring it within the purview of Act XX of 1863???

The Judge says:— “I apprehend that a private endowment is one in which the benefits are appropriated wholly or partly to individuals as distinguished from the general Mahomedan public;” and again:— “The difference between a private and a public endowment is explained in Da???mple v. Khoondkar Azeezul Islam. Now the terms of the tauliatnama are not uncertain or ambiguous; the wakf constituted thereby fulfils all the requisite conditions; and the acts of the defendant in registering the deed, in obtaining the transfer of names in the Collector's books, and in managing the property throughout the intervening twenty years under the appellation of mutawalli, sufficiently prove that possession passea from herself as malik to herself and Jigri Khanum as mutawallis. It is dear that a valid wakf once completed cannot be revoked; and it is certainly not open now to the defendant to say that she misunderstood the effect of the words she used, and the acts by which she consummated the wakf. The endowment certainly is a religious establishment within the meaning of Act XX of 1865.”

I doubt whether Dalrymple v. Khoondkar Azeezul Islam lays down any rule, or gives any explanation as to the difference between public and private endowments for religions purposes. It rather deals with the difference between a mutawalli considered merely as a superintendent of a religious establishment, and one who combines both a personal and an official interest in the endowment, and, when the appropriation has been made partly for religious and partly for secular purposes. A public endowment for religious uses is one which distributes its benefits to all men of all classes professing a defined form of religion: a similar endowment for pious and charitable purposes generally would include all members of the community who chose to avail themselves of the means afforded them by the appropriator; every one would have an equal right to participate, and that at all times and at all seasons. Now what is the case here ??? The tauliatnama executed by the defendants Delroos Banoo Begum is to the following effect:—

She begins by saying that she considers it incumbent on her to continue and perpetuate the ceremonies for pious uses such as fatiha, haziri, & which she says is the fixed and settled usage of her family. She then details the ceremonies, &c., on which the larger part of the income is to be spent: they are the fatihas of Mahomed and of the twelve Imams, the expenses of the first ten days of the Mohurrum and of the holidays, the repairs of the imambara and of the tombs, by which she means her mother's tomb. Of the rest of the income, part is to be expended in paying and pensioning the servants of the estate (the property was a large one, yielding nearly three quarters of a lakh of rupees annually), and part is to be applied to the mutawallis' own uses. She appoints herself and her sister-in-law Jigri Khanum joint mutawalies, with power to the survivor, and makes arrangements for the appointment of a superintendent after her death.

This document was executed on the 10th of September 1852, at a time, that is, when Regulation XIX of 1810 was in force, and when, acoording to that Regulation, the superintendence of the endowment, if a public one, would have been vested in the Board of Revenue and Board of Commissioners, who would have been bound to take order that the endowment was duly appropriated to the purpose for which it had been destined. Now it is not contended in this case that any such suprintendence was ever exercised by the Boards in question, or that they ever interfered in any way with the appropriation, and this too when the tauliatnama or endowment deed had been publicly registered, and application had been made to the Collector to substitute the names of the mutewallis in his mutation register for the name of the former proprietor. It seems clear from this that the authorities did not at the time when the endowment was made, consider that it was of a public character coming under the provisions of Regulation XIX. Nor, when Act XX of 1863 was passed, did the Local Government make any special provision under as. 4 to 7, as contemplated by s. 3 of the Act, which it was bonnd to have done, had the endowment been one of a public nature and for public purposes coming under the Regulation of 1810: no transfer was made under s. 4 of Act XX of 1863. In short, the defendant was never interfered with under either Act or Regulation.

Then as to the wording of the tauliatnama itself. It seems to me that there is nothing in it that contemplates an appropriation for the “general benefit,” whilst the defendant's object in making it is further explained in her deposition, which is on the record, It was to perpetuate certain ceremonies in commemoration of her mother's death according to the custom of the family, which was of the Shiah sect, and in the regular performance of which the defendant, who had married a husband of the Sunni sect, probably saw some future difficulty. The prayers, &c., to be recited were not to be made in any mosque or regular place of worship, but in the defendant's own imambara (a building admittedly within the ???ecincts of her dwelling-house), and the expenses of the first ten days of the Mohurrum were matters of an essentially private character. Mahomedans of bo th Sunni and Shiah sects are in the habit of performing these Mohurrum ceremonies according to their means, and the richer class of them no doubt spend large sums in commemoration of the deaths of Hassan and Hossein; but these ceremonies are personal matters only, and the general public have no right to take part in them. An imambara, moreover, is not a public place of worship as is a mosque or temple, but an apartment in a private house set apart no doubt for the performance of certain Mohurrum ceremonies, but no more open to the general public than a private oratory in England would be. As a matter of fact strangers are ordinarily excluded from these celebrations. Doles of a particular kind of provision are no doubt distributed at this time to the fakirs and beggars in attendance, but this is a matter of individual charity; there is no general distribution in which all the poor have a claim to share.

It appears to me, after reading the terms of the tauliatnama, and considering the evidence which has been adduced as to the way in which its provisions were understood and carried out, that the appropriation of Delroos Banoo Begum was not of a public character, and that Act XX of 1863 does not apply to it. It follows that the Judge bad no authority to give the plaintiff leave to sue, and that his decision was ultra vires.

This would be sufficient to dispose of the present appeal, but as we have been informed by the respondent's counsel that the case will be carried further, it will be as well to give our opinion on the other points which have been argued before us.

And first as to the way in which the suit has been brought. The plaint is on a 10-rupee stamp, on the ground that a declaratory decree only is sought; but this is not so. The plaintiffs ask for distinct and important consequential relief; they ask not only that the defendant may be declared to have wasted the endowment, and thereby to hare betrayed her trust, but also that she may be turned out of her mutawalliship, and they, the plaintiffs, be appointed in her room. The plaintiffs say thai what they claim does not admit of being properly estimated by a money-value; but this is not so. Under the tauliatnama the mutawallis were to receive six twenty-eighths of the produce of the estate, a very considerable sum, and the plaintiffs claim to this share as an appurtenance to the office of mutawalli was easily to be estimated in money. I am of opinion that the plaint ought to have been engrossed on a stamp of proper value.

Then as to the plaintiffs' interest, I very much doubt whether they, or any one else, could have claimed as a matter of right to be present at the imambara on the occasion of the Mohurrum ceremonies, or to have participated in the charities then disbursed. I consider both to have been of a private character, and that the defendant had the right to forbid, had she been so minded, any one from entering her premises on these occasions. In any case all the plaintiffs would not have had the right, even if the two nephews, as being of the family, possessed it.

I now come to the substantial question between the parties as to whether this appropriation by the defendant Delroos Banoo Begum was a legally constituted wakf. I agree with the Judge in thinking that so far as words go, it was a wakf which would have bound the appropriator: but what we have to consider is, whether it was intended by the appropriator Delroos Banoo Begum to operate as such, and whether she knew that by executing the tauliatnama she then and there divested herself of all her proprietary right in her large and valuable estate, and became only a co-superintendent with her sister-in-law, with a comparatively small allowance for maintenance.

The Judge holds that the defendant cannot now be allowed to say that she misunderstood the effect of the words she used, or of the acts by which she consummated the wakf, and under ordinary circumstances no doubt a person would be rightly presumed to have known the consequence of his own deliberate act; but in this case the matter is somewhat different. The defendant is a pardanashin Mahomedan lady, unable to read and write, and generally ignorant, as are most of her class. She has been examined, and she swares positively that she did not understand the meaning of the deed which she executed. She admits her wish to keep her estate for the purpose of perpetuating certain ceremonies in memory of her mother, and out of the hands of her legal heirs, and that to this end she, by the advice of her confidential servant Ali Jameen, signed a deed which she was told would have that effect. She swears positively that the tauliatnama was only read over to her in Persian, a language which she did not understand, and that she had no idea of divesting herself by it of her proprietary rights. No evidence has been given to rebut this statement. Only one witness to the tauliatnama, Abdool Azeez (summoned by the defendant), has been examined, and be does not prove that the deed was ever read to the Begum in Hindustani, a language which she understood, or that its purport was explained to her. Her own acts have been from the first absolutely inconsistent with a knowledge that she had divested herself of ber rights as proprietor by the tauliatnama; from a time shortly after its execution, we find her dealing with the property just as if it were still her own, selling, buying, borrowing, granting mukarrari leases, and exercising all the usual rights of ownership, and making everything as publio as possible by registering the documents affecting these conveyances. I find moreover that, long after the tauliatnama was executed (namely in 1871), the Collector of the 24-Pergunnas gave pottas to Delroos Banoo Begum,— and this is a further argument in favor of the property never having been considered an endowment for public purposes under Regulation XIX of 1810,— and treated her as the proprietor of her estate. It is moreover hardly likely that, had Delroos Banoo Begum known what was the real effect of making a wakf, she would have Beaded her receipts for rents paid by the ryots with her name as mutawalli and a description of the estate as a wakf mehal, and still have gone on disposing of the property at her pleasure and as if she had made no wakf At all. From first to last, as it seems to me, her acts denote a person endeavoring to make such an arrangement of her property, as would defeat the claims of her heirs, and permit of the estate being retained for particular purposes, but always considering that she still retained the right to do what she pleased with ihe property so long as she lived.

I think therefore that the burthen of proof was shifted, and that the plaintiffs ought to have given some evidence to show that Delroos Banoo Begum understood the true nature of a wakf appropriation, and that when she executed the tauliatnama she knew that by it she divested herself at once of all her large property. It is clear that she bad no professional assistance at the time. Ali Jameen is described as an old and trustworthy servant, but not a lawyer; and none of the witnesses examined for the plaintiff's prove that the Begum in creating the wakf was in any way cognizant of the effect of her act. It has been generally held in this conn try that pardanashin ladies have a claim to special consideration, particularly in cases when they deny on oath an effectual knowledge of documents which they are said to have made, and a precedent was quoted to us — Price v. Price — where, in the case of an illiterate husband making a gift of his whole property to his wife, the writer of the document being the only person present who could write, and he not being a professional man, the Court of Chancery required to be satisfied that the purport of the deed had been properly explained to the husband, and that he knew what he was about, and not being so satisfied, dismissed the wife's petition.

In this case we have an illiterate and prejudiced woman, with no professional assistance, executing a deed written in a language which she did not understand, and which, as she swears was not explained to her by which she completely divests herself of the whole of a large property, and then immediately sets to work to to do a series of acts which would have the effect of turning her out of the mutawalliship she had created for herself, and of turning her upon the world absolutely penniless. Before we come to such conclusion, we ought to have very distinct proof that the real purport of the wakf deed was properly explained to Delroos Banoo Begum, and that she knew what she was about; and it is not too much to say that no such proof has been attempted to be given by the plaintiffs.

It does nob appear necessary to go further than this. As to the objections raised by the defendant that the wakf was indefinite, and therefore void, I think it enough to say that it, in my judgment, fully answered all the requirements of the Imameea law, and that, if it had been really and knowingly executed, it would have bound Delroos Banoo Begum without the power of reovocation.

I think that this appeal must be allowed, and the Judge's decision in favor of the plaintiffs be reversed with costs.

Appeal allowed.