Authored By : Loftus Richard Tottenham, Trevelyan

Loftus Richard Tottenham and Trevelyan, JJ.

1. The question which we have to decide in this appeal iswhether a certain deed, dated the 21st December 1868, and purporting to be awakfnamah, did create a valid wakf according to Mahomedan law.

2. The deed was executed by the defendants 1 and 2 inrespect of all their Immovable property without particularising the variousitems of which that property consisted. They appointed themselves mutwalis, andfor some years described themselves as such in collection papers and otherdocuments connected with the management of property. But in 1874. they declaredthat they had revoked the wakf by reason of their necessities, and thenceforththey dealt with the property as if no wakf existed. The defendant No. 1, whohad become much involved in debt, mortgaged and alienated numerous parcels ofthe property. This suit was instituted in 1888 by his sons as beneficiariesunder the deed of wakf to have it declared that all the property was wakf, torecover from the transferees all the property alienated by their father, and tohave him removed from the post of mutwali. The plaintiff No. 1 in his evidencebefore the lower Court stated that before instituting the suit he consultedvarious legal authorities in Calcutta, and ascertained from them that the wakfwas valid according to Mahomedan law. The lower Court decided that it was so,and made a decree accordingly.

3. In the hearing of this appeal against that decree we havebeen assisted by learned Counsel on both sides, who have dealt with the caseexhaustively from their respective points of view.

4. We would premise by saying that if the instrument inquestion did create a valid wakf when it was executed, no subsequent conduct ofthe wakfs could affect its validity; and unless from that conduct it can beinferred that they never intended to make a wakf at all, the consideration ofit is not material to the question which we have to decide.

5. It is necessary next to state what the declared objectsof the instrument were. In its opening sentences it states as follows:"For perpetuating the names of our fathers and forefathers and for protectingour properties, we...of our own free will and accord and without reluctance orcompulsion make perpetual wakf of all our shares and rights in the Immovableproperties pergunnahs, zemindaries, taluks, that are in our possession andenjoyment for the benefit of our children and grand-children and the members ofour family from generation to generation and upon failure of them for thebenefit of the poor and beggars and widows and orphans". And in asubsequent part of the deed it is stated that "the principal object ofthis wakf is that there be no loss to the properties; that the name andprestige of the family be maintained; and that the property be appropriatedtowards the maintenance of the name of the family and the support of thepersons for whose benefit the wakf is made; and for acts of religion",etc. The appropriators make themselves the mutwalis for their lifetime, andprovide that none of the beneficiaries shall be entitled to call for accountsfrom them or to sue them for increase of their allowances or for possession ofany of the property.

6. From the passages above quoted it is quite clear that thepurposes for which this wakf was made were, so to speak, secular rather thanreligious; and that it was intended to operate as a perpetual tying up of theproperties for the sole benefit of the appropriators and their descendants forso long as any of them should exist in the world. The only definite religiousor charitable object indicated is the support of the poor, the widows andorphans; and this object is contingent upon the total extinction of theappropriators family in some future age.

7. Such being the character of the wakf, we have to decidewhether it is one that is valid and irrevocable according to Mahomedan law.

8. The contentions of the parties are: (1) for thedefendants appellants, that a wakf is not valid unless the property isdedicated solely, or, at least primarily and substantially, to religious orcharitable objects; and (2) for the plaintiffs respondents, that a settlementupon the owner and his descendants for ever is a valid wakf if made in properform, and if, as in the present case, there is an ultimate destination of theprofits to the poor. Indeed, it is said on this side that even with its expressmention of the poor a wakf for the benefit of the owners descendants is valid.And the learned Advocate-General goes so far as to suggest that the intentionof the Mahomedan law is that "wakf" should be a device to enableperpetual family settlements to be made under the veil of religious trusts.

9. Mr. Evans for the appellants relied on the followingcases as authorities for the proposition that a wakf will not be recognized bythe Court as valid, unless the property is substantially appropriated toreligious or charitable purposes, Mahomed Ashanulla Chowdhry v. Amarchand KunduL.R. 171 A. 28; and I.L.R. Cal. 498; Mahomed Hamidulla Khan v. Lotful HuqI.L.R. Cal 744; Abdul Ganne Kasam v. Hussen Miya Ruhmutula (10 Bom. 7); FatimaBibee v. Ariff Ismailjee Bham 9 C.L.R. 66. This last case as, as regards thepoint in question now, decided upon the authority of the second and third; andthe second case proceeded to a great extent upon the authority of the third,viz., the case of Abdul Ganne Kasam v. Hussen Miya Ruhmutula 10 Bom. 7. In thatcase the Judges came to the conclusion that the balance of authority wasstrongly in favour of the view that to constitute a valid wakf there must be adedication of the property solely to the worship of God, or to religious orcharitable purposes. They referred for support in this view to the Calcuttacase of Bibee Kuneez Fatima v. Bibee Saheba Jan 8 W.R. 313 and to Jewun DossSahoo v. Shah Kabeerooddeen 2 Moores I.A. 390.

10. On the other side, the learned Advocate-Generalcontended that the decision in Abdul Ganne Kasam v. Hussen Miya Ruhmutula 10Bom. 7 and Mahomed Hamidulla Khan v. Lotful Huq I.L.R. Cal. 744 were erroneous;and he dismissed the Privy Council decision in Mahomed Ashanulla Chowdhry v.Amarchand Kundu L.R. 17 IndAp 28: I.L.R. Cal. 4 98 as not settling anythingthat is material to the case now before us.

11. It appears to us, however, that their Lordships in thatcase did say enough to negative the learned Advocate-Generals rather boldproposition that the Mahomedan law intended to allow perpetual familysettlements to be made under the veil of religious trusts. At any rate theyexpressly refused to countenance it in the case they were then deciding. Andthe judgment shows that they accepted as an undisputed proposition that toconstitute a valid wakf in the case before them the property must be insubstance given to charitable uses.

12. The learned Advocate-General contended that thedecisions in Abdul Ganne Kasam v. Hussen Miya Ruhmutula 10 Bom. 7 and MahomedHamidulla Khan v. Lotful Huq I.L.R. Cal. 744 were wrong upon the authority ofDoe d. Jan Bibee v. Abdullah Barber 1 Fulton 345 a case tried in the SupremeCourt of Calcutta before Ryan, C.J., and Grant, J. He also relied upon FatmaBibi v. The Advocate-General of Bombay I.L.R. Bom. 42 and Amrutlal Kalidas v.Shaik Hussein I.L.R. Bom. 492 and upon the authorities cited by Mr. Ameer Aliin the Tagore Law Lectures for 1884, including Mr. Baillie.

13. The judgment of Ryan, C.J., based as it was upon theopinions of the Moulvies to whom the questions of Mahomedan law were referred,is certainly entitled to very great weight; but all that that judgment decidesin respect of the validity of a wakf is that an endowment to charitable uses isvalid, though qualified by a reservation of the rents and profits to the donorhimself during his life; and that the donor may appoint himself mutwali andneed not deliver possession to another. It does not declare that a wakf whichon the face of it is not an endowment to religious or charitable uses is valid;and that is the question now before us. That judgment does show that thedecisions in Abdul Gannr Kasam v. Hussen Miya Ruhmutula 10 Bom. 7 and MahomedHamidulla Khan v. Lotful Huq I.L.R. 6 Cal. 744 went too far in holding that, avalid wakf must from its creation be solely and exclusively for religious orcharitable purposes; but it does not show that they were wrong in laying downthat the primary and substantial objects must be of that nature. And in thecase of Doe d. Jan Bibee v. Abdullah Barber the benefit to the religiouspurposes indicated in the deed were not wholly and indefinitely postponed tothe interests of the donor and his descendants so long as any of the lattershould continue to exist; but the reserve was in favour of the donor himselfand of certain persons only who were already in existence.

14. The other two cases relied upon by the Advocate-GeneralFatma Bibi v. The Advocate-General of Bombay I.L.R. Bom. 42 and AmrutlalKalidas v. Shaik Hussein I.L.R. Bom. 492 are really in direct conflict with thedecisions in Abdul Ganne Kasam v. Hussen Miya Ruhmutula 10 Bom. 7 and MahomedHamidulla Khan v. Lotful Huq I.L.R. Cal. 744 cited by Mr. Evans; and we agreewith him that they are irreconcilable with the latter.

15. The cases of Fatma Bibi v. The Advocate-General ofBombay I.L.R. Bom. 42 and Amrutlal Kalidas v. Shaik Hussein I.L.R. Bom. 492seem to lay down practically that a perpetuity in favour of the donor and hisdescendants is a valid wakf, if an ultimate dedication be made in favor of somereligious or charitable object upon the occurrence of a contingency, howeverremote and improbable. And we are not prepared to follow this ruling, unless wefind it irresistibly supported by unquestionable authority. Baillie no doubt aswell as the learned Tagore Law Lecturer of 1884 seem to favour thisinterpretation of the law; but the Hedaya, as translated by Hamilton, and mostof the cases laid before us, seem to us to establish the fact that wakf must bein favour of a religious or charitable purpose, although there may be atemporary intermediate application of the whole or part of the benefits to theappropriators family. All the cases that expressly sanction this latterarrangement were cases in which at least the ostensible and principal object ofthe wakf was religious or charitable. And that the dedication must not dependupon an uncertain contingency, such as the possible extinction of the family,has recently been well laid down by the Madras High Court in Pathukutti v. AvathalakuttiI.L.R. Mad. 66.

16. We have the authority of the Privy Council in the caseof Mahomed Ashanulla Chowdry v. Amirchand Kundu L.R. 17 IndAp 28: I.L.R. Cal.498 cited by Mr. Evans for refusing to recognize as a valid deed of wakf aninstrument which uses a particular form of words as a veil to coverarrangements for the aggrandizement of the family and to make their propertyinalienable.

17. Precisely such, in our judgment, is the deed before us,and notwithstanding the fact that for a few years after its execution theowners of the property dealt with it nominally as mutwalis, it is certain thatthey had not really intended to give up their proprietary rights in it. Andbefore very long they abandoned even the semblance of mere trusteeship. Wecannot believe that the authors of Mahomedan law intended that, under cover ofa pretended dedication to Almighty God, owners of property should be enabled tosecure it for their own use, protect it for ever from their own and theirdescendants creditors, and repudiate alienations in respect of which they havereceived full consideration. In our opinion, then, the deed before us cannot besustained as a valid wakfnamah, and consequently we decree this appeal,reversing the decree of the Court below, and dismissing the plaintiffs suitwith costs of the other Courts.

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Abul Fata Mahomed Ishak and Ors. vs. Rasamaya Dhur Chowdhuri and Ors. (24.02.1891 - CALHC)