Authored By : T. Ameer Ali, O Kinealy

T. Ameer Ali, J.

1. This appeal arises out of a suit brought by the plaintiffunder the following circumstances: Two Muhammadan ladies of the name ofAzizunnissa and Kamrunnissa, respectively, were the owners, in possession, ofthe property in suit held as a shikmi taluq under the superior landlord. In theyear 1286 they purported to make a wakf of their shares in various properties,including the one in suit. The wakfnama of Azizunnissa alone has beentranslated and printed in the paper-book; but the terms of both are said to beidentical. Both the ladies by their respective deeds constituted themselvesmutwallis in respect of the shares dedicated by themselves. And they providedthat upon the death of either, the survivor should be the mutwalli or managerin respect of both shares, in other words, of the entire dedicated property,and that upon her decease the plaintiff should be the mutwalli. The plaintiffwas a party to these deeds of wakf, which were duly registered in accordancewith the provisions of the law in force at the time. Azizunnissa appears tohave died first, whereupon Kamrunnissa became, under the wakfnama, the mutwalliof the entire wakf estate. From her position as a purdanashin lady she wasnaturally unable to carry on personally the work of management, which wasentrusted at first to her husband, and after his dismissal to the first twodefendants, who are brothers, by a registered am-mukhtarnama. In 1291Kamrunnissa leased out the properties in suit to the third defendant, a brotherof the first two. A default having been committed in the payment of the rentdue to the superior landlord, he brought a suit and obtained a decree againstKamrunnissa. She died in 1886, and the decree was executed by the substitutionof the name of Kamrunnissas husband in her stead, and the property in suit wasput up to sale and purchased by the first three defendants in the name of thefourth.

2. The plaintiff brings this suit to recover this propertyfrom the defendants. He alleges, in substance, that the first two defendants,Sashti and Jogeshur, were the trusted servants of the wakf estate, and had theentire charge of the properties; that their duty was to look after and protectthe same, to realize the rents from the tenants, and to pay the amount payableto the zemindar; that the ijara was taken by the three brothers jointly; thatthey did not pay the zemindars rent, though they had in their hands moneybelonging to the wakf estate; that they gave no notice of the executionproceedings to the plaintiff, and that they brought about the sale in anirregular and fraudulent manner. He charges that their conduct was in breach oftheir fiduciary obligations, and he alleges that they are not entitled toretain the property purchased by them. He accordingly claims the recovery ofthe same.

3. The defendants raised various defences. They pleaded,inter alia, want of a cause of action on the part of the plaintiff andnon-joinder; they alleged that the plaintiff was not a Mussulman; that thewakfnama put forward by the plaintiff was a fabricated document; that theladies had no power to make a wakf; that the property was never called wakf;that they were never the tehsildars of the estate; that they were only chargedwith the conduct of Kamrunnissas law-suits, and that they were innocentpurchasers.

4. The Subordinate Judge framed several issues in the case,but it is unnecessary to set them out in detail. Shortly speaking, he foundthat the deeds of wakf were genuine; that the defendants Nos. 1 and 2 not onlymanaged the law-suits, but realized monies from the tenants, and paidGovernment revenue as well as zamindars rent; that they were in fact "allin all" and did everything in connection with the wakf estate. He foundfurther that it was Sashti who conducted Kamrunnissas defence in therent-suit, and that both the defendants Nos. 1 and 2 were aware of the terms ofthe wakfnamas. In other words, he found, as a fact, that the defendants, with afull knowledge of the provisions contained in the wakfnamas, acted as amlas ofthe wakf estate. He found also that, though from their position they were boundto protect the property, they took no steps for its protection from sale. Hestated "that the price was not fair is not denied". He held furtherthat all the three brothers, who were joint in food and estate, were interestedin the ijara. And he was of opinion that the wakf was valid, and that fraud wassufficiently established. He accordingly made a decree, directing thedefendants to reconvey the property on the plaintiff paying into Court thepurchase-money with interest.

5. On appeal, the District Judge agreed with the first Courtin holding that the deeds of wakf were genuine and were duly executed by theladies and acted upon; that the defendants Sashti and Jogeshur transacted allbusiness connected with the dedicated property under a generalpower-of-attorney, and that the interests of the three brothers were identical.But he held that there was "no fraud or collusion on the part of thedefendants in failing to give notice of the sale to the plaintiff, or anymisbehaviour and misconduct on the part of the defendants as would entitle the plaintiffto ask for a concealment of the sale-proceedings, and an invalidation of thedefendants purchase".

6. He also held that, in his opinion, the wakf was invalid.This latter position I shall examine later. The Judge does not upset thefinding of the first Court, that the defendants were aware of the terms of thewakfnamas in question, and acted as sub-managers to the mutwalli with a fullknowledge of their position as such, nor does he hold that the defendant Sashtihad not the conduct of Kamrunnissas defence in the rent-suit. He seems tothink that the death of Kamrunnissa absolved the defendants from all fiduciaryobligation towards the estate. In this view I cannot concur. The liabilitieswhich spring from fiduciary relations are too clear to require discussion. Itis conceded that had Kamrunnissa been alive she could have claimed areconveyance of the property from the defendants, independently of any questionof fraud. But it is said, as the District Judge has said, that the plaintiffhas no right to maintain such a suit.

7. The position which the first two defendants held inconnection with the estate is abundantly established, and both the lower Courtsare agreed on that point. Though the defendants denied having anything to dowith the estate of Kamrunnissa beyond looking after her law-suits, though theydenied all knowledge of the wakf, going so far as to charge that the documentspropounded were forgeries, it has been found that they were in fact entrustedwith the entire charge of the dedicated property; that they transacted allbusiness connected therewith; that they realized the rents, paid the sudderjama, and were in fact "all in all". It has been found also that theywere aware of the terms of the wakf, which showed that the plaintiff was themanager in succession to Kamrunnissa. Assuming for a moment that the wakfpurported to be created by the ladies did not amount to a valid dedication, theutmost that can be said is that the estate does not possess all thecharacteristics of a valid wakf. under the Muhammadan law. But how does thataffect the position of the defendants Assuming that it was not an absolutewakf, there can be no doubt that the deeds represented an arrangement by whichcertain people took an interest in the properties which formed thesubject-matter of that arrangement. Kamrunnissa had succeeded to the managementunder the wakfnamas in question, and was in possession of the entire estate asmutwalli. She was, in fact, and could only be, in possession of her sistersshare as a manager under that arrangement. Since her death the plaintiffoccupies that position. As manager, and therefore acting on behalf of theendowment, she appointed the two defendants sub-managers, for that, it has beenfound, was their real position. Ordinarily, no doubt, the death of theprincipal would determine the agency. In the present case the defendants havenot produced their am-mukhtarnama, though called upon to do so. It is, however,abundantly clear from the findings of the first Court, which have not beenreversed by the Judge, that the lady was neither the owner, nor dealt with theestate as her own, and that they wore not merely the amlas of the lady, asowner, but of the endowment, and that they acted in that capacity with a fullknowledge of the circumstances and the position of the parties. Besides, theywere Court mukhtars, and had charge of all Court work connected with theestate. In my opinion, it does not lie in their mouths to say that theirfiduciary relationship was one of a personal character which ceased with thedeath of Kamrunnissa. The Judge does not find that the defendants had beendismissed as soon as Kamrunnissa died. Any other conclusion, to my mind, wouldhave a most mischievous tendency. Suppose, for example, the managing member ofa joint Hindu family appointed a manager or attorney to transact thejoint-family business, can it be contended that the death of the managingmember would put an end to the fiduciary relationship of the agent, and thesucceeding managing member could not sue him upon the basis of suchrelationship

8. As regards that portion of the property which belonged toAzizunnissa, the position of the defendants is nowise different from that ofKamrunnissa herself in relation to the wakf created by her sister and thepersons interested therein. Had Kamrunnissa purchased the property, theplaintiff, as representing the endowment, could have claimed a reconveyancefrom her.

9. The District Judge has wholly overlooked theseconsiderations. He seems to think the fiduciary relationship was purelypersonal towards Kamrunnissa, and that as the plaintiff has failed toestablish actual fraud, he is not entitled to any relief. I think thisconclusion to be erroneous. To my mind the fiduciary position occupied by the defendantshad relation to the endowment. This agency was, no doubt, created byKamrunnissa, but it is clear that they were the servants and agents not ofKamrunnissa as owner, but of Kamrunnissa as manager; and the agency thereforecould not and did not end with her death; and that, therefore, whether therewas actual fraud on their part or not, the plaintiff, as representing theendowment, is entitled to demand a reconveyance just in the same way asKamrunnissa could if she had been alive.

10. I have proceeded so far upon the assumption that thewakf did not amount to a valid dedication. I now proceed to consider whetherthe view taken by the Judge as to the character of the wakf is correct or not.The Judge on this point says as follows:

The Subordinate Judge, on the nature of the deed, concludesthat there is nothing in the law or the quoted authorities to prevent bequestsin favour of relatives and their descendants in perpetuity being inserted in awakfnama and that a deed with such recitals is a valid wakf. So far as Iunderstand the law, this argument is sound; that there is no prohibitionagainst inserting such provisions in a wakfnama in favour of relatives, whetherthe latter are indigent or not, even if the grants are unlimited. The questionin the present case is, was the charitable or religious dedication the primaryobject of the lady, or did the deed merely incorporate family settlements withthe reservation, nominal as it is contended, for such objects as to constitutea valid wakf It must be admitted that the deeds show no substantial dedicationfor charitable or religious purposes. The annuities and allowances aredeterminate, the charges to be incurred for performance of festivals are leftundefined, and would necessarily have to be met from the residue of the annualincome of the property, after satisfaction of the fixed demands, if any suchsurplus were available. Under these circumstances, whatever may be the incomeof the property devoted, it is evident that provision for the members of thefamily was the primary intention of the grantor, and the application of thefunds to purposes covered by wakfnamas merely contingent. The lower Court, ofcourse, had not the ruling of the Privy Council in Mahomed Ahsanulla Chowdhryv. Amarchand Kundu I.L.R. 17 Cal 498; I.L.R. 17 IndAp 28 before it, as anauthority in connection with an enquiry as to the essential conditionsnecessary to constitute a valid wakf. The facts of the present case are not sopronounced as the one the Privy Council dealt with, so far as the immediatemotive was the aggrandisement of the family. This was practically a familysettlement with recitals in the deeds to represent them as wakfnamas, in orderto obtain advantages accruing to documents of that character.

11. In the case of Mahomed Ahsanulla Chowdhry v. AmarchandKundu I.L.R. 17 Cal. 498;I. L.R. 17 IndAp 28 referred to by the Judge, theirLordships of the Privy Council expressly abstained from laying down any generaldefinition. The words used by them in this respect are too important to beignored. They said--"Their Lordships do not attempt in this case to laydown any precise definition of what will constitute a valid wakf, or todetermine how far provisions for the grantors family may be engrafted on sucha settlement without destroying its character as a charitable gift. They arenot called upon by the facts of this case to decide whether a gift of propertyto charitable uses, which is only to take effect after the failure of all thegrantors descendants, is an illusory gift, a point on which there have beenconflicting decisions in India". Nor do the facts of that case or the caseof Rasamaya Dhur Chowdhuri v. Abul Fata Mahomed Ishak I.L.R. 18 Cal. 399 [LQ/CalHC/1891/14] citedat the Bar by respondents counsel bear the least analogy to the present case.It must not be understood, however, that I assent to the principles laid downin the latter case.

12. It was contended that the Judge has found that the wakfwas not valid, and that the intention was to create a family settlement, andthat these conclusions, being findings of fact, cannot be impugned in specialappeal. I do not think this contention could have been advanced seriously.Analysed properly, the Judges conclusion amounts to this. A wakf (he seems tothink), in order to be valid, must he a substantial dedication for charitableor pious purposes in the English sense of the terms; here it is not so, ergo itis not a valid wakf. This is as pure a question of law as can be imagined. Thetwo points which the Judge had to consider were, in my opinion, the following:(i) What is necessary to constitute a lawful wakf under the Mussulman law; and(ii) whether the wakfnamas in question comply with the requirements of a lawfulwakf. Both these points involve questions of law.

13. In dealing with the first question, viz., what isnecessary to constitute a lawful wakf under the Mussulman law, it is necessaryto make one observation. In the Mussulman system law and religion are almostsynonymous expressions, and are so intermixed with each other that it is whollyimpossible to dissociate the one from the other: in other words, what isreligious is lawful; what is lawful is religious. The notions derived fromother systems of law or religion form no index to the understanding or administrationof the Mussulman law. The words "piety" and "charity" havea much wider signification in Mussulman law and religion than perhaps in anyother. Every "good purpose", wujuh-ul-khair (to use the language ofthe Kifaya), which God approves, or by which approach (kurbat) is attained tothe Deity, is a fitting purpose for a valid and lawful wakf. A provision forones children, for ones relations, and under the Hanafi Sunni law for onesself, is as good and pious an act as a dedication for the support of thegeneral body of the pool. The principle is founded on the religion of Islam,and derived from the teachings of the Prophet.

14. I will give here a few passages from some of the bestknown authorities to show how utterly opposed the view taken in this case is tothe Muhammadan law. The Fath-ul-kadir says--"Literally, it (the word wakf)signifies detention,...in law...according to the disciples, the tying up ofproperty in such a manner that the substance (asl=corpus) does not belong toanybody else excepting God, whilst the produce is devotee to human beings, oris spent on whomsoever he (the wakif) likes; and the reason of it is that,though a desire to approach the Deity (kurbat) should form the ultimate motiveof all wakfs, yet if, without such an (immediate) desire, a person were todedicate a property in favour of the affluent (aghnia), the wakf would be validin the same way as a wakf in favour of the indigent or for the purposes of amosque; for, in giving to the affluent there is as much kurbat as in giving tothe poor or to a mosque, and though the profit may not have been given to thepoor on the extinction of the affluent [still] it is wakf and will be treatedas wakf even before their extinction. This principle is founded on the reasonthat the motive in all wakfs is to make ones self beloved by doing good to theliving in this world and to approach the Almighty in the next....

15. "In wakf Islam is not a condition; consequently ifa Zimmi makes a wakf on his children and his posterity and gives it at the endto the indigent, it is lawful [equally with that made by a Moslem]. And it islawful in such a case to give the usufruct conditioned for the indigent to thepoor of both Moslems and Zimmis. The wakif may lawfully condition to give theusufruct solely to the poor of the Zimmis, and in that will be included Jewsand Christians and Magians; or he may condition that a special body of them mayget the produce (i)...whatever condition the wakif makes, if it is not contraryto the Sharaa, will be lawful. And so long as the object is not sinful, thewakif may give to whomsoever he likes.... According to Abu Yusuf the mention ofperpetuity [or dedication to an object of a permanent nature] is not necessaryto constitute a valid wakf, for the words wakf and sadakah conjunctively orseparately imply perpetuity.... In the Baramika it is stated that, according toAbu Yusuf, when a wakf is made in favour of specific individuals, on theirextinction the profits of the wakf will be applied to the poor (2).... Amongthe wakfs created by the Sahaba [companions of the Prophet]...the first is thewakf of Omar (may God be pleased with him) of his land called Samagh [atKhaibar]...that created by Zobair bin Awwam of his house for the support of hisdaughter who had been divorced (by her husband);...that of Arkam Mukhzumi, onhis children of his house called Dar-ul-Islam at Safa (near Mecca), where theProphet used to preach Islam, and where many of the disciples, among them Omar,accepted the Faith.... Baihaki in his Khilafiat has stated upon the authorityof Abu Bakr Obaidulla bin Zubair that (the Caliph) Abu Bakr (may God be pleasedwith him) had a house in Mecca which he bestowed in charity upon his children,and that it is still in existence.... And Saad ibn Abi Wakkas bestowed incharity his houses in Medina and Egypt upon his children, and that wakf isstill in existence, and (the Caliph) Osman (may God be pleased with him) made awakf of Ruma, which exists until today, and Amr-ibnal-Aas [the Amru of Europeanhistory], of his lands called Wahat in Tayef, and of his houses in Mecca andMedina upon his children, and that (wakf) also is still continuing (3)....According to Abu Yusuf the wakif may lawfully retain the governance of thetrust, or reserve the profits for himself during his lifetime. This has beenfully dealt with by Kuduri in two parts.... The jurists, Ahmed ibn-i-Abi Laila,Ibn Shabarma, Zahri, and others, agree with Abu Yusuf. Mohammed alone holds acontrary opinion.... Abu Yusuf bases his rule upon the practice and sayings ofthe Prophet himself who used to eat out of the produce of the lands dedicatedby him.... Another proof in support of Abu Yusufs rule is that the meaning ofwakf is to extinguish the right of property in ones self and consign it to thecustody of God. Therefore, when a person reserves the whole or a portion of theprofits for himself, it does not interfere with the dedication, for that alsoimplies the approval of the Almighty and is lawful.... For example, if a manwere to dedicate a caravanserai and make a condition that he may rest in it, ora cistern and condition that he should take water from it, or a cemetery, andsay that he may be buried there, all this would be lawful. [Further] ourProphet (may the blessings of God be with him) has declared that a mansproviding for his subsistence is a sadakah (an act of piety or charity). ThisHadis has been substantially handed down by a large number (of people) and isauthentic, and Ibn Maja states from Mikdam bin Maadi Karib that the Prophetdeclared that no gain of a man is so meritorious as that which he earns by thelabour of his hands; and that which he provides for the maintenance and supportof himself, the people of his household, his children and his servants, is asadakah. And Imam Nisai from Bakia and he from Buhair has given the sametradition in these words: Whatever thou providest for thyself is a sadakah.Ibn Haban in his Sahih states that Abu Said reports from the Prophet thatanyone who acquires property in a lawful manner, and provides therewith for hismaintenance and for that of the other creatures of God, gives alms in the wayof the Lord.... And Dar Kutni reports from Jabir that the Prophet (may Godsblessing be with him)...declared that all good acts are sadakah, and that a manproviding subsistence for himself and his children and his belongings, and forthe maintenance of his position, is giving charity in the way of God....Tibrani has reported from Abi Imama that the Prophet of God declared that a manmaking a provision for his own maintenance, or of his wife, or of his kindred,or of his children, is giving sadakah. And in the Sahih of Muslim it is statedfrom Jabir that the Prophet told a man to make a beginning with himself andgive the remainder to his kinfolk. All these traditions support Abu YusufsRule and Sadr-ush-Shahid has laid down that decisions are passed according toAbu Yusufs opinion, and we decide according to it". (1)

16. I have quoted this passage at length in order to showwhat the Mussulman law really is. That decisions are passed according to AbuYusuf is also laid down in the Fatawa-Alamgiri [Baillies Dig. (2nd ed.), p.567; Alamgir, Vol. II, p. 460].

17. As a matter of fact, there is absolutely no differenceamong Mussulman lawyers of any school or sect regarding the lawfulness of wakfin favour of ones children and descendants. The authors of the Radd-ul-Muhtar(quoted in this country as the Shami) and of the Majmaa-ul-Anhar lay that downin distinct terms. The latter is most explicit: "There is no difference ifa person conditions the profits of a wakf for his children, and accordingly insuch a wakf male and female (children) will take together, unless he conditionfor the males alone"(2).

18. With regard to the reserve of a part or the whole of theincome by the wakif for his own use during his lifetime, there is a divergencebetween Abu Yusuf and Mohammed. The former holds it to be lawful, and the rulelaid down by him is recognized as law in almost every Hanafi country, with theexception, perhaps of Bokhara. It is the law in India, in Turkey, in Irak,Afghanistan and Transoxiana. In the Fatawa-Alamgiri it is stated that the Fatwais with Abu Yusuf; in other words, decrees are passed according to his rule. Inthe Asaaf, the Kazi Khan, the Radd-ul-Muhtar, the Majmaa-ul-Anhar,Ghait-ul-Bayan,--in fact in every law work, it is laid down that the rule ofAbu Yusuf is the recognized and accepted law, and it was so distinctlyenunciated in Doe d. Jaun Beebee v. Abdollah Barber (Fulton, 345).

19. In the Hawi (written in the sixth century of the Hegiraand frequently quoted in the Alamgiri) the rule is thus stated: "If a manmake a wakf with this condition that so long as he lives he shall eat out of itand feed others, and on his death his children will have the same right in it,and similarly his childrens children in perpetuity so long as his posteritylasts, that they should eat out of it and feed others too; this wakf is validon this condition. This is according to Abu Yusuf, and it is accepted asauthority for the Fatwa". (1)

20. There are two other matters on which Abu Yusuf andMohammed are at variance. According to Mohammed, a wakf is not operative untilit has been consigned to a mutwalli, nor unless the ultimate application bedestined for an unfailing object. According to Abu Yusuf, on the contrary, itis operative and obligatory the moment the wakif declares be constitutes aparticular property as wakf. Nor is it necessary, according to him to specifythe ultimate application of the wakf. It is enough if the word wakf is used,for that implies perpetuity, and it the reversion is not expressly given to anunfailing object, the law will supply the deficiency. My meaning will be clearfrom the following passages. The Radd-ul-Muhtar lays down: "Abu Yusufholds the declaration of wakf to be like a declaration respecting theemancipation of a slave. Accordingly he does not consider a transfer necessary.According to him the wakf becomes binding and operative on mere declarationlike the declaration for emancipation...and it extinguishes the right ofproperty, and this is stated in the Durrar [al-Ahkam] and it is correct"."Perpetuity is a condition by consensus, but according to Abu Yusuf itsmention is not necessary...and if a man says I make this dedication on mychildren and add nothing further, it is valid according to him.... Accordingto Abu Yusuf the mention of the word wakf or sadakah implies perpetuity, andconsequently it is stated in the Book [Mukhtasur-al-Kuduri] that such a wakfis valid, and after the failure of the children it will be for the poor, thoughthey are not named, and this is correct".

21. The Ramz-ul-Hakaik, after stating the origin of wakfs,adds "besides the incidents of a wakf are that it cannot be sold, nor canit be given by gift, nor can it be inherited, and its produce may be spent onthe poor and relatives and travellers, and the wakif may eat thereof.... Andaccording to Abu Yusuf mere saying that, I have made this property wakf, issufficient to extinguish the proprietary right of the wakif, for by that theproperty is assigned over to God, like the emancipation of a slave, and in thisview the other three Imams agree, viz., Shafei, Malik, and Hanbal...and saysAbu Yusuf, that even if an object is mentioned that is likely to fail, stillthe wakf will be valid, and after the extinction of the object named, theproduce will be given to the poor, even if the poor are not mentioned".

22. According to Abu Yusuf, whose opinion, it will be seen,is the recognized law, a declaration of wakf is like a declaration ofemancipation. The meaning of this passage has not, I am afraid, been fullyapprehended or appreciated by our Courts of Justice. When a man declares thathe has emancipated his slave, or that he emancipates him, the masters right ofproperty in the person of the slave, under the Mussulman law, becomesextinguished immediately.

23. There can be no reserve or condition in such an act.Neither the emancipator nor his heir, nor any person deriving title from him,can say that in making that declaration he had no intention of making a bonafide emancipation or of setting free the slave absolutely. Abu Yusuf puts adeclaration of wakf on the same footing as a declaration of emancipation. Awakifs right becomes extinguished immediately with his declaration, andneither he nor anybody else can say that when he made the declaration he had nointention to create a valid dedication.

24. The Courts of Justice have repeatedly laid down that itis in accordance with "justice, equity and good conscience" that theMussulman law should be administered to Mussulmans on all these questions. Tohold that a wakf in favour of ones descendants and kindred is not valid wouldbe, in effect, to abrogate an important branch of the Mussulman law. It isdifficult to understand what the Judge means when he says that this is not awakf "substantially for charitable or religious uses". The words"charitable" and "religious" must be understood from aMussulman and not from an English point of view. If the Judge means to say thata provision for ones children and kindred is not a charitable and religiousact, according to the Mussulman law, he is clearly wrong.

25. In this particular case the wakf is in favour of some ofthe wakifs kindred. The executant of the deed, which is to be found in thepaper-book, begins with the statement that in 1281 she had executed a wakfnamadedicating her properties to God in order to secure welfare in her passage tothe next world, as well for the purpose of providing expenses for good andcharitable acts and the salvation of her soul". She then goes on to saythat the rules laid down by her for the management of the property and theapplication of the income were not clearly stated. She now fixes amended andcorrect rules for religious purposes, and for the use of the profits of herproperties in pious acts and in acts tending to the righteous path and tobenefit the people. In effect, the new deed was confirmatory of the first, andemphasised the absolute divestment of all proprietary interest in theproperties and their complete dedication to pious or religious purposes. Shethen provides for the governance of the trust; she constitutes herself thefirst mutwalli; she declares that after her death her sister, if surviving,will take her place, and upon her death the plaintiff would succeed.

26. In paragraph 2 she provides that during her lifetime, orso long as she would like to act as a mutwalli, she would make gift to the poorand indigent, and maintain and clothe them and supply their other expenses,according to the rules observed during the Ramzan, Eed, Bakri-Eed, Barwafat andother festivals; and that from "the remaining income" of the propertyshe would supply her own personal expenses. She then proceeds to lay down therule for the application of the income after her death:

On my death from the income of the wakf property specifiedin the schedule below, the Government revenue, the collection charges andexpenses connected with litigation, as well as a sum of Rs. 400, as annualallowance to the mutwalli for the time being, shall be paid in the mannerstated below; from what remains or shall be collected, monthly allowances shallbe given to my relatives and old servants managing their duties in proper anddutiful manner. Half of what remains shall be expended according to the customfor the festivals of Ramzan, Eed, Bakri-Eed, and other religious ceremonies,and in making gifts to the poor and indigent, and in maintaining travellers andpersons who take shelter after sunset. The remaining of the profits shall bekept with the mutwalli as a ready and separate fund for the protection of theproperty from danger.

27. In other words, during the wakifs lifetime the income isto be applied partly in giving relief to the needy and partly in defraying theexpenses of certain religious festivals and those connected with her own self.After her death, the income is to be divided into three parts, one portion isto be given to a specified body of individuals, some of whom are relations, andothers, servants, and on their decease to their descendants in perpetuity; thesecond, to strictly religious and charitable purposes; and the third to be keptfor the protection of the estate. Each and every provision is perfectly lawfulunder the Mussulman law.

28. Even had she primarily reserved to herself an interestin the income for her life, and the right of giving allowances to the personsnamed and disbursing the religious expenses according to her discretion, therewould have been nothing illegal or contrary to the provisions of the Muhammadanlaw in such a condition. In the wakfnama, which formed the subject ofdiscussion in Doe d. Jaun Beebee v. Abdollah Barber (Fulton, 345) there was acondition to that effect, and it was held to be valid. The provision that incase the mutwalli refuses to pay the allowances, the annuitants would beentitled to recover the same by suit does not affect the wakf. Under theMussulman law, they would have been entitled, even without such provision, tohave recourse to the kazi. These allowances, it is admitted, cover about halfthe income. A portion of the balance is to be devoted for the maintenance ofthe property, which is absolutely valid under the Mussulman law. From theremainder certain strictly religious and charitable expenses are to bedefrayed. In case of the failure of the issue of the annuitants, the lapsedannuities are to beo applied to the same purposes. So that in the end theentire income will become applicable to strictly religious purposes--seeMuzhurool Huq v. Puhraj Ditarey Mohapattur 13 W.R. 235.

29. The Judge says there is no sum specified for what hecalls the substantial religious and charitable expenses. He considers this acircumstance which militates with the idea of its being a valid wakf. Thisnotion is clearly founded on a misconception. In Muhammadan wakfs, the amountdiscussable in charity to the poor, when such charity begins simultaneouslywith a provision for the members of the wakifs family, is often leftunspecified, or only partially specified, not with the object that the wakifschildren may get more, but that the right of the poor to get relief may not berestricted.

30. For all these reasons, I am of opinion that the judgmentand decree of the Appellate Court must be set aside, and the decree of thefirst Court restored.

O Kinealy, J.

31. I concur in the judgment which has just been deliveredby Mr. Justice Ameer Ali, and on both the points.

32. It seems to me clear that the purchasers were theservants of the endowment, whose duty it was to protect the dedication and toget the best price for the property which was sold. They put themselves in theposition in which their duty and interest conflicted; they bought the property;and, according to the code of morality administered both here and in England,it is quite clear to my mind that the purchaser can be called upon to transferthe property to the endowment. If servants employed in the management ofproperty, whether temporal or religious, who are in a position to find outflaws in the title under which the property is held, are allowed to buy theproperty for themselves, and retain it, many estates will be ruined in thiscountry. I therefore agree with what has been said by my learned colleague, andhold that the death of the lady did not destroy the duty of the purchasers ofreturning, the purchased property, when called on to the endowment under whichthey served so long.

33. Nor, to my mind, is the rule by which we should beguided in deciding what constitutes wakf less clear. We know it must be anendowment for religious or charitable purposes; and if we want to interpret adocument of that kind, what we must naturally look to is what is really meantby the words "religious" or "charitable" among Muhammadans.As an example, we know the words "charitable purpose" in Scotlandhave quite a different meaning from that in which they are used in England. Andso in India, in judging of what is really meant by the words "religious"and "charitable" by a Muhammadan, we must take the view whichtheir law takes, and not what is to be found in the English Dictionary.

34. I therefore agree with my learned colleague in thinkingthat the findings of the Judge do not cover the case. He has not found thataccording to the Muhammadan law the object of the wakf was not religious orcharitable; what he has found is that the objects are not charitable andreligious according to the ordinary use of the words. This, I think, is notsufficient.

35. I therefore bold that the decree of the Lower AppellateCourt should be sot aside, and that of the Court of First Instance restoredwith costs.

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Meer Mahomed Israil Khanvs. Sashti Churn Ghose and Ors.(18.03.1892 - CALHC)