William Fraser McDonell, J.

1. Mr. Gregory, who appears on behalf of the respondents,has contended that under Section 561 of the Code of Civil Procedure, he is tosupport the decree of the Court below upon the question of wuqf, which wasdecided against him in the lower Court. We think that this contention is sound;and we proceed accordingly to deal with the question of wuqf. The first grantis to be found at page 50 and following pages of the paper-book, and it isdated so far back as the year 1756. It recites that a firman is issued to theeffect that mouzah Adoni, etc., appertaining to taluk pergunnah Luskerpore,etc., Sirkar Barungabad, in the province of Bengal, whish yields a sum of Rs.1,080, be fixed (granted) bafurzandan as detailed inlieu of Rs. 3 per day forthe expenses of fursh, lighting, and servants of the mosque, and mudrassaerected by Dost Mahomed Khan in Lalbagh, pergunnah Asadnugur, Sirkar Oodnir asmududmash of the mutwulli Bedar Ali and other servants of the aforesaid mosque.It then directs that the authorities, amlas and others do give over the saidmouzah in their appropriation bafurzandan, without any change or alteration,and that they should raise no objections as to malwajhat and other items ofexpenditure, and should not demand a fresh sunnud every year. There is then amemorandum, or endorsement to the effect that mouzah Adoni, appertaining topergunnah Luskerpore and so forth, of which the annual income is Rs. 1,080 inlieu of Rs. 3 per day for the defrayal of certain expenses as aforesaid, hasbeen granted; and attached to this document there is a specification of themanner in which the sum of Rs. 3 per day is to be spent. This sum is divided intothree portions, one-third or Rs. 360 per annum is for the defrayal of theexpenses of the servants of the mosque and fursh and light, etc., etc.,one-third or Rs. 360 for the expenses of a mudrassa at one rupee per day, andthe remaining one-third or Rs. 360 for the maintenance allowance of Bedar Ali,son of Dost Mahomed Khan. These three portions make up the total of Rs. 1,080and the nett jama of the villages granted is shown to amount to the same sum.

2. The second grant is dated 14 years later, 1770 A. D., andit recites that the first grantee, Badar Ali, who had been adopted by DostMahomed, having been found incompetent to discharge the duties of mutwulli, hadbeen turned out of the house, and the said Dost Mahomed Khan has applied for asunnud in his own name. The new grant is then made to Sheik Fukeerulla, nephewof Dost Mahomed Khan, and the document concludes as follows:

"For this purpose mouzah Adoni, etc., appertaining tothe said pergunnah, etc., bearing a jumma of 86,500 damao which are equivalentto Rs. 1,080, are fixed and confirmed as mududmash bafurzandan in favour ofSheik Fukeerulla, the mutwulli, and other servants of the said mosque. It isthat the said mouzah, etc., should be given over to their possessionbafurzandan without in any way raising objections, so that they may enjoy theproceeds of the aforesaid mouzahs and defray the expenses of fursh, lighting,etc., and ever be employed in prayers for eternal and perpetual wealth."Then follows an account similar to the account of the manner in which theproceeds are to be spent, set out in the first instrument and to which I havealready referred.

3. The first question with which we shall deal is, whetherthis instrument is one which creates a wuqf valid according to Mahomedan law.Let us see what are the essentials of such a grant. In the first place, theappropriator must destine its ultimate application to objects not liable tobecome extinct; secondly, it is a condition that the appropriation be at oncecomplete; thirdly, that there be no stipulation in the wuqf for a sale of theproperty and expenditure of the price on the appropriators necessities; andfourthly, perpetuity is a necessary condition. We think that this grant fulfilsall these four essentials. Then it is provided by the Mahomedan law that if aman appropriate his land for the benefit of a musjid and to provide for itsrepairs and necessaries, such as oil, &c, this is valid appropriation.Looking at the instruments of grant in this case, it appears to us that therewas a valid appropriation. But then arises the question what was appropriated.It has been contended by the learned Counsel for the appellant that all thatwas the subject of appropriation was the annual sum of Rs. 1,080; and that allthe surplus profits of the villages over and above this annual sum must betaken to have been given to Fakeerulla and his heirs who are related to DostMahomed Khan, who obtained the grant and erected the mosque. We have consideredthis argument, and it appears to us that what was appropriated was not theannual sum of Rs. 1,080, but the whole of the villages. We think that thespecification contained in the two instruments was merely intended to indicatethe proportions in which the money was to be expended on the different objectsof the appropriation. It is true that the grantor does not seem to havecontemplated an increase in the value of the property. Certainly he has made noexpress provision for any surplus profits that such increase or an improvedvalue of the property might yield over and above the annual sum of Rs. 1,080:nevertheless, looking at the express terms of the grant, it appears to us, as Ihave already said, that the whole of the annual profits of the villages was thesubject of appropriation. We think that in dealing with the surplus profits wemust decide that those profits are to be appropriated in the same proportion tothe objects for which the sum of Rs. 1,080, which was at that time the annualprofit of the villages, was expressly appropriated. In putting a constructionupon this grant of the Mahomedan Government, we may refer, by way ofillustration, to the case of jagirs, which were grants of land to thoseretainers of the Mahomedan Government who were still in service. They wereassignments, not of the land, but of the revenue, and were made as an appendageto the dignity of mansub, a kind of nobility conferred for life. These jagirswere of two kinds, conditional and unconditional. Conditional jagirs weregranted generally to the principal servants of the Emperor, in order to meetthe expenses of a particular office, and these were held only so long as theoffice was retained. Unconditional jagirs were independent of any office, andwere personal grants for the maintenance of a dignity. These grants were forlife only. If the lands produced more than the mansubdars allowance, which wasalways fixed, he was bound to account for the surplus. Now it is a matter ofhistory that these jagirs, which were at the time grants for life only, havebecome hereditary, and that the taufir or excess over and above the allowancefixed in the grant, instead of being accounted for and made over to theGovernment, has become the property of the jagirdar, and his descendants; inother words, that all surplus, over and above the specific money amount of thegrant, has followed the same object and destination as this specific amount.

4. A tonkha or Mahomedan assignment to revenue was in allprobability something of the same kind. There is nothing before us to show thatthere was in this case any express direction as to what was to be done with anysurplus profits over and above Rs. 1,080; but we think that, looking at theexpress terms of the second grant, dated 1770, with the light which is to beobtained from similar grants made by the Mahomedan Government, the reasonablepresumption is that the improved value or any excess over and above Rs. 1,080was intended by the grantor to be devoted, or has come to be regarded by thegrantee as devoted to the same purpose for which the amount of Rs. 1,080, whichwas in 1770 the actual value of the property, was expressly assigned. In thisview of the case we come to the conclusion that the whole property is wuqf;and, therefore, it was not competent to Jaffir Ali to alienate it. It may bewell to say that the dur-mokurruri lease granted by defendant No. 4 and themolturruri lease which was obtained from Jaffir Ali, though in the form ofleases, are really alienations of the greater portion of the beneficialinterest in the property. We are, therefore, of opinion that the decree of theCourt below must be upheld, although upon a different ground to that upon whichthat Court has proceeded. This appeal must in consequence be dismissed withcosts.

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Jugatmoni Chowdranivs. Romjani Bibee and Ors.(22.02.1884 - CALHC)+