Authored By : T. Ameer Ali, S.C. Ghose, Trevelyan, HenryThoby Princep, William Comer Petheram

T. Ameer Ali, J.

1. The question raised in this reference is of such vitalimportance to the Mahomedans of India and so materially affects their law andreligion, the enjoyment of which has been guaranteed to them by the BritishGovernment, that I must state at some length the reasons that have compelled meto differ from my colleagues.

2. The facts of the case are as follow:

One Bikani Mia, a Mahomedan inhabitant of Dacca, shortlybefore his departure in 1874 on a pilgrimage to Mecca, executed a wakfnama inrespect of a considerable portion of his property and registered the documentin accordance with the law.

The deed recites that the executant was in the fullpossession of his sense and power of understanding," that he was notindebted to anybody, that the property to which it related was acquired byBikani himself, and that he had an "exclusive right, ownership andpossession therein.

3. The executant then goes on to say--

I now think it advisable to lay down, according to ourMahomedan shara, certain rules in respect of the properties mentioned in theschedule given below, whereby my name and memory may be perpetuated for ever,my sons and daughters and their descendants may be decently maintained out ofthe income of those properties, and the properties may not suffer inconsequence of disputes among my sons and daughters aforesaid or theirdescendants. Therefore, on the terras laid down in the following rules andparagraphs, I do hereby make a permanent wakf of the undermentioned propertiesin favour of my two sons, viz., Sriman Abdul Rahaman Mia and Sriman AbdulSobhan Mia, my four daughters, viz., Srimoti Moni Bibi, Srimoti Chuni Bibi,Srimoti Akkal Bibi, and Srimoti Adar Bibi, and any wife Srimoti Panna Bibi, andafter them the successive descendants of my said sons and daughters, and ontheir death, i.e., in the case of all my said sons and daughters, and theirdescendants dying issueless, in favour of the poor, the indigent and the beggarsresiding in the town of Dacca. Taking the said wakf properties out of my(personal) ownership and possession, I hold them in possession as mutwalliunder the terms of this wakf. As long as I shall live I myself shall continueto be the mutwalli, and as such shall do everything according to the terms ofthe said wakf. On my death my two sons Sriman Abdul Rahaman Mia and SrimanAbdul Sobhan Mia shall, as hereinafter provided, be appointed mutwallis in myplace.

4. Paragraph 1 runs thus:

I or any one among my wife, sons and daughters and theirsuccessive descendants, viz., those in whose favour a permanent wakf of theaforesaid properties has been made, shall never to competent to possess or inany manner waste any portion of the wakf properties mentioned in the wakfnama.After my death whoever may be the mutwalli shall, out of the net income orbalance remaining after payment of the sudder revenue of the aforesaidproperties and the collection" charges, spend Rs. 50 annually in the nameof Allah (i.e., for religious purposes), and pay Rs. 100 annually to my eldestson Sriman Abdul Rahaman Mia, Rs. 100 annually to my younger son Sriman AbdulSobhan Mia, Rs. 50 annually to each of my said daughters, and Rs. 50 annuallyto my said wife. Beyond these they shall not be entitled to get or take acoward; whatever balance may remain after meeting the aforesaid expenses shallbe added to the wakf funds as deposit money. And after the death of my saidwife the sum of Rs. 50 payable to her shall in the above manner be depositedwith the aforesaid funds. On the death of any of my sons or daughtersaforesaid, the money payable to him or her shall be divided among his or hersons and daughters in the proportions laid down in the Mahomedan law ofinheritance. But if any such person die without leaving any son, daughter,sons son, or any other descendant, then the amount payable to him or her shallbe credited to the estate.

5. The rest is not material for the purposes of thisreference.

6. Paragraph 3 runs as follows:

Every year the mutwalli for the time being shall in the nameof God give away Rs. 50 (fifty rupees) in charity to the poor. One student mustalways be maintained, and in this the mutwalli shall never fail.

7. In paragraph 4 he provides for the appointment of themutwallis, and says that they (after his sons) one after another should beselected from among the members of his family, and that no outsider should beappointed to that office. I may here observe that under the Mussulman Law, theendower has the power to lay down any rule he likes as to the superintendenceof his benefaction; and even without such a condition, the Kazi cannot appointa stranger unless there is nobody competent or trustworthy in the wakifsfamily.

8. In paragraph 5 he provides as follows:

After my death the aforesaid mutwallis shall be competent tospend any amount of money they think proper for the sake of my salvation, andnobody shall be competent to raise any objection in respect thereof.

9. The general scheme of the document shows that upon thedeath of each son or daughter without issue, or on the extinction of anybranch, the allowance payable to him or to her or to such branch wouldimmediately become available for the general purposes mentioned in paragraph 5.

10. Bikani returned from Mecca a few months after, and has,since his return, become largely indebted to various money-lenders of Dacca,who have obtained money decrees against him, and who now seek, in these suits,to attach and sell the properties covered by the wakfnama, on the allegationthat the deed of wakf was illegal and was executed by Bikani with the object ofdefrauding his creditors.

11. The defence in the main is that the wakfnama wasexecuted bond fide and duly registered, and that it is legal and bindingaccording to the Mahomedan Law. It may be stated here in passing that theplaintiffs have only money-decrees against Bikani; and it does not appear thatany portion of the property was hypothecated to any of them for his loan.

12. Two of the issues framed by the Subordinate Judge beforewhom the case came on for trial in the first instance were:

Fourth.--Was the wakf in question a merely colourabletransaction in fraud of creditors, or a real bond fide and legally valid one

Fifth--Has the wakf been noted upon

13. It is necessary to set out verbatim what the SubordinateJudge says with respect to these two questions. He expresses himself asfollows:

It does not appear from the evidence that at the time ofmaking the wakf Bikani owed more than Rs. 2,000 to his creditors. Although thewakf estate contained the most valuable and important properties of Bikani,still it is clear from the evidence, which has not been contradicted, that hehad at the time secular properties worth much more than Rs. 2,000. Theproperties were not only sufficient to clear his debts, but also to supporthimself and his family without any help from the wakf estate. I am therefore ofopinion that Bikani did not create the wakf with the object of defrauding hiscreditors. There is no force in the argument that the deed might have been gotup with the intention of defrauding future creditors, who might make advancesto him in ignorance of the existence of that deed. Shortly after the executionof the deed Bikani went on a pilgrimage to Mecca, which in all probability hehad in contemplation when making the settlement. It is moreover in evidencethat he was then a very old man of infirm health, and had very little hopes ofreturning home alive.

The journey being a very distant one, it is but natural fora man of Bikanis age to entertain such apprehensions with regard to hisexistence. It seems to me, therefore, more probable that Bikani, before hisdeparture for Mecca, wanted to make some provision for his children, and withthat object executed the deed of wakf, and that, to ensure perpetuity, certainpious acts were enjoined to be performed at such trifling expenses as everyMahomedan would do without making any kind of endowment : 8 Weekly Reporter,312.

14. From the above it is clear that in the SubordinateJudges opinion the wakf was executed bona fide without any fraudulentintention. But he proceeded to add--

The ultimate reversion to the poor and needy on failure ofdescendants is such a remote contingency that under the circumstances of thecase to be detailed hereafter, I am not prepared to say that Bikani whilemaking the wakf was at all actuated by a pious motive to render some benefit tothe poor.

15. Apparently, the Subordinate Judge decided upon the constructionof the document that where the endowers descendants receive any portion of theincome, the endowment does not constitute a valid wakf under the Mahomedan Law,although all the proceeds go ultimately to the general poor. In this view hemade a decree in favour of the plaintiffs. The District Judge on appeal heldthat to all intents and purposes the deed in question was practically a deed offamily endowment," but he added that there was an endowment in prasenti ofRs. 50, and also an additional endowment for the support of atalib-ul-ilem," and looking to the conduct of the appropriator after thedeed had been executed, he thought that that portion of the deed had beenpractically acted upon, and was intended to be carried out from the commencement.

16. He accordingly upheld the deed so far, saying--

I think the appellant is fairly entitled to have releasedfrom attachment a portion of the property of which the assets would be aboutRs. 75 per year, i.e., Rs. 50 for religious purposes and Rs. 25 for the supportof a student who, I may here observe, has always been maintained by theappellant, if not from the date of the wakfnama, still for a very considerableperiod. The decree of the Subordinate Judge will therefore be modified, andthere will be declared a valid charge on the property of the wakf to the extentof Rs. 75 per annum.

17. The defendant appealed specially to this Court, and theDivision Bench before whom the case came on for hearing, finding the principlesof Mahomedan Law laid down in Rasamaya Dhur Chowdhuri v. Abut Fata MahomedIshak I.L.R. 18 Cal. 399 [LQ/CalHC/1891/14] in conflict with those expressed in Meer MahomedIsrail Khan v. Sashti Churn Ghose I.L.R. 19 Cal. 412 [LQ/CalHC/1892/13] , referred the followingquestion to the Fall Bench, "whether the disposition of the grantorsproperty was a valid wakf of the property dealt with by the deed."

18. The case has been elaborately argued on both sides. Mr.Hill for the appellants contended that under the Mahomedan Law the wakf wasvalid. The Officiating Advocate-General (Mr. Woodroffe) argued that "thelaw to be applied in this case is not the Mahomedan Law." He contendedthat the endowments constituting the members of the endowers family as therecipients of the charity mentioned in Mahomedan Law-books are "only thelearned lucubrations of the Mahomedan casuists, and never got beyond theirstudies." He cited a number of cases from the commencement of the SudderCourt to the present day to show that no case of this kind ever came into Courtuntil the year 1881; and further contended that the Courts have recognised suchwakfs only as are for purely charitable and religious purposes in therestricted sense in which those words are understood in English Courts ofJustice.

19. The first question, therefore, which one has to consideris whether the disposition in question is to be discussed upon the basis of theMahomedan Law, or of any other system of law.

20. From the year 1798 downwards the Courts of Justice haveuniformly applied the Mussulman Law to the determination of questions affectingthe validity of dispositions made by Mahomedans. In the case of Jewan DossSahoo v. Shah Kubeerooddeen Ahmed 2 Moo. I.A. 390 the defendant was a Hindu,and the question was whether the property which formed the subject-matter ofthe suit was wakf or not. Their Lordships in the Privy Council decided the caseon the basis of the Mahomedan Law. And every case before and since hasproceeded upon the same principle. Whilst on this point, I would refer to thewords of LEVINGE and Steer, JJ., in Zohorooddeen Sircar v. Baharoollah SircarW.R. 1864, 185 .

21. Apart, therefore, from the question whether such a wakfis a religious institution or not, it seems to me it would be contrary, notonly to the principles of "justice, equity, and good conscience, whichwe have to administer in these Courts, but also to "immemorial andrecognised practice," --to apply to the decision of the present case anyprinciple other than that of the Mahomedan Law.

22. The next question is, what is the Mahomedan Law on thesubject Mr. Woodroffe refused to refer to any work on Mahomedan Law; he saidthat they were "the mere lucubrations of casuists," and he took hisstand upon the decided cases. This certainly does not seem to be a correctposition, for it would hardly be right to pretend to decide a case according toMahomedan Law, and yet wholly to ignore the works in which that law is to befound. From the year 1798 to 1884, we find not only translations of MahomedanLaw works cited, but original authorities quoted at the Bar and referred to bythe Bench. In the case of Khajah Hossein Ali v. Shahzadee Hazara Begum 12 W.R.344 49 : 4 B.L.R. A.C. 86 as well as PEACOCK, C.J., on appeal, referred to andrelied upon the Fatawa Alamgiri; and in the case of Mullick Abdool Guffoor v.Muleka I.L.R. 10 Cal. 1112 [LQ/CalHC/1884/102] referred to the same work and the Durr-ul-Mukhtar.

23. Mr. Morley points out in his Digest (Vol. I,Introduction, page ccxxvii) the sources from which the Mahomedan Law isderived. He shows that the Mussulman Law is founded (1) on the Koran; (2) onthe precepts of the Prophet; and (3) on the decisions of the leading disciples.The direct precepts and practice of the Prophet form part, so to speak, of theStatutory Law of Islam, being regarded as supplementary of the divineordinances in the Koran. Mr. Morley also repeatedly mentions how closelyconnected religion and law are among the Mahomedans, and how impossible it isto dissociate the one from the other.

24. In page clxxxiii he says:

The laws of the Hindus and Mahomedans are part and parcel oftheir religion and believed by them to be of divine revelation.

25. And in another place (page clxxxvi) he adds:

In considering the propriety of altering or abrogating theHindu or Mahomedan Laws, all preconceived notions of the relative excellence ofthe English and native systems of jurisprudence should be taken as secondaryconsiderations. Nor should it be called in question whether such systems are inthemselves good or bad, for it should never be forgotten...that they are anintegral part of the faith of that people, and that though we may not be boundby absolute treaty, we have virtually pledged ourselves to preserve them byrepeated proclamations and enactments.

26. The institution of wakfs, in which the endowers familyand descendants are the immediate recipients of the benefaction, owes itsorigin to the direct ordinances of the Prophet. Not only did he declare that aprovision for ones family was the best of alms-giving, but he encouragedmembers of his household and his companions to create such wakfs, and himselfset the example by consecrating certain lands at Khaibar. In dealing with theMussulman Law, the meaning attached by Mussulmans to the words "charitablepurposes" has been, unfortunately, often lost sight of. Charity has beenconstrued to mean charity to the poor," irrespective of the endower andhis decendants; piety and religion to mean such acts as would, in practicalEurope, be regarded as pious or religious. This is not the Mussulman Law, whichwill be best explained by the following passages from the Mishkat;1 showingwhat the Prophet considered "piety and charity" to mean:

"The Apostle of God said, When a Mussulman bestows onhis family and kindred, for the intention of rewards, it becomes alms, althoughhe has not given to the poor, but to his family and children." "TheApostle of God said, There is one Dinar which you have bestowed in the road ofGod, and another in freeing a slave, and another in alms to the poor, andanother given to your family and children; that is the greatest Dinar in pointof reward which you gave to your family." "The Apostle of God said,"The most excellent Dinar which man bestows is that which he bestows uponhis own family; and a Dinar spent upon quadrupeds, in the road of God, which iscombating for the faith, and a Dinar which a man bestows upon his friends, inthe road of God." "Omm Salma says," I said to the Prophet, isthere any good tidings for me of rewards, for my bestowing on the sons of AbuSalma His sons are no otherwise than mine." "The Prophet said,"Then give to them, and for you are the rewards of what you bestow uponthem."

The Apostle of God said, Giving alms to the poor has thereward of one alms, but that given to kindred has two rewards; one the rewardof alms, the other the reward of relationship.

27. These precepts are also given by Kazi Khan in hisdecisions known as the Fatawa Kazi Khan, and by Imam Zailye in substantiallythe same terms as in the Fath-ul-Kadir, and are considered as binding on Mahomedans.

28. In Muslim and Bokhari (see Morleys Digest,Introduction, pages ccliii and ccliv) the precepts of the Prophet are given indetail. I shall quote here only two:

The Prophet of God declared that a pious offering to onesfamily [to provide against their getting into want] is more pious than givingalms to beggars. The most excellent of Sadakah is that which a man bestows uponhis family.

To give money to free a slave, to give alms to the poor, togive to your children and kindred are all Sadakah.

29. It is unnecessary to multiply these quotations. Areference to any book on Mahomedan religion or law will show that the words"charitable purposes" are not used in Mussalman Law in the restrictedsense in which it has been attempted to use them in the English Courts ofJustice.

30. As regards the early wakfs, the Fath-ul-Kadir givesnumerous examples of them, and as I have given the passage in extenso in thecase of Meer Mahomed Israil Khan I.L.R. 19 Cal. 412 [LQ/CalHC/1892/13] I will not repeat it here.Imam Zailye corroborates and supports the statements contained in theFath-ul-Kadir, and gives a copy of the deed of Arkam (an immediate disciple ofthe Prophet), by which he dedicated his house in charity upon his childrenwithout any reference to the poor.(2)

31. In the earliest collection of decisions called theFatawa Baramika (those delivered by Imam Abu Yusuf, who was the Chief Judge ofBagdad under the Caliph Harun-ul-Rashid), it is laid down that a wakf is lawfulin favour of any object, and will, after its extinction, inure in favour of thepoor, -- the ultimate beneficiaries of all benefactions.

32. The next collection of decisions now extant in order ofdate is the Fatawa Hawi, quoted in the Fatawa Alamgiri as "the holyHawi." Its author Kazi Jamaluddin Ahmed, who died in A.H. 600, was acelebrated lawyer and Kazi of Ghazni (in Afghanistan). In it we find thefollowing rule:

If a man makes a wakf of a piece of land or of an orchard,on condition that whenever he should be in want of the produce thereof, heshould have it; the wakf will be valid according to the said condition. If hereserves for himself the whole of the produce of the wakf property, or makeshimself mutwalli, it will be valid according to istihsan; and this also wouldbe the case when a man makes a wakf on the condition that he should cat out ofit, and feed others with it, during his lifetime, and, upon his death, hischild shall have the same privileges, and such will be the case with hischilds child also, for ever, so long as his posterity continues, who would eatout of it, and feed others with it: the wakf will be valid with theseconditions. The whole of the above is what Abu Yusuf says, and Fatwas are givenin accordance with the same.

33. Of the Fatawa of Kazi Khan, who lived about the sametime as the author of the Hawi, Morley speaks thus:

The Fatawa Kazi Khan, or collection of decisions of the ImanFakhr-ad-Din Hasan Ben Mansur al-Uzjandi al-Farghani, commonly called KaziKhan, who died in A.H. 592 (A. D. 1195), is a work held in the highestestimation in India, and indeed is received in the Courts as of equal authoritywith the Hidaya of Burhan-ad-din Ali, with whom Kani Khan was a contemporary :it is replete with cases of common occurrence, and is therefore of greatpractical utility, the more especially as many of the decisions are illustratedby the proofs and reasoning on which they are founded.

34. In the Fatawa Kazi Khan, in the chapter "on thewakf of a man on himself, his children, his kindred, and his neighbours,"the rule is thus stated:

And Khassaf (3) has laid down that when a man makes a wakfin these terms, this, my land, is a Sadakah-mowkoofa or mowkoofa, and itsproduce will be for me so long as I live, and after me for my children andchildrens children and their descendants in perpetuity so long as my posterityexists, and on their extinction for the poor] it is lawful.

35. The authority of Kazi Khan can hardly be disputed, andhis decisions have been frequently quoted in the Sudder and Supreme Courts,e.g., see Doe d. Jaun Beebee v. Abdollah Barber (Fulton, 345) in theKiniat-ul-Munia A.C. 1259 (see Morleys Digest, Introduction, page cclxxxvi)the same principle is laid down.

36. In the Zakihrat-id-Fatawa (see Morleys Digest,Introduction, page cclxxxv), a collection of decisions prepared about the endof the thirteenth century, and frequently referred to by the Law officers ofthe Sudder Court, there is the following:

It is laid down in the book Ajnas by Natifi (4) that if aman makes a wakf, and lays down in it with respect to himself that he should,during his life time, eat out of it, and feed those whom he likes; that afterhim it should go to his child, his childs child and to his posterity for ever,so long as it may continue, and that upon its becoming extinct it should go tothe poor; this would be valid according to Abu Yusuf, may the mercy of God beon him, and it will not be a disposition in the nature of a will in favour ofhis child, the child eating out of a property belonging to God, the Most High.Do you not see that when a man makes a wakf in favour of his children and theirchildren so long as their posterity may continue and gives it afterwards to thepoor, it is valid. Now this case is just like it.

37. In the Khazanat-Mul-uftiin, an important collection ofdecisions of the year 1339 frequently referred to by the Law officers in thiscountry (see Macnaghtens Principles and Precedents of Mahomedan Law, pages332, 342, &c), the Fatwa is given thus:

If any one says I make a wakf of this land of mine infavour of my child and afterwards in favour of the poor, the income thereofwould go to his child and his childs child till they be dead and none of thembe alive, and even if the third generation be forthcoming, the income would goto the poor, and not to the third generation. If he says: In favour of mychild, my childs child, and the child of my childs child, making mention ofthree generations, the income would be spent by his descendants forever, solong as his posterity continues, and not by the poor till any of hisdescendants be alive, be he of a degree howsoever low.

38. In the Fatawa Durr-id-Mukhtar (1660), which, as I havealready pointed out, is a great authority in this country, the same principleis laid down:

If one should declare the income of it [i.e., the wakfproperty] to be for [i.e., receivable by] himself during his lifetime--andthereafter [i.e., then for his children, and then for his childrens children],it is lawful according to the Second [Iman Abu Yusuf], and the Fatwa is inaccordance with it. And if he should add (thereto) a third generation, it wouldinclude his Nasl (posterity) in general.

39. The Radd-ul-Mukhtar (a commentary on the Durr-ul-Mukhtarby Moulana Mohammed Amin, written about the end of the 17th century and quotedin this country as the Shami), commenting on the above passage, "if aperson fixed the usufruct for himself during his life time and thereafter andthereafter, it will be lawful according to the Second [Abu Yusuf], and on thisis the Fatwa," says as follows:

It is lawful to reserve the produce of a wakf for onesself. According to Abu Yusuf, the words (thereafter and thereafter) which thewakif mentions has no connection with the present discussion. For example, if aperson makes a wakf on himself and thereafter on his children, and thereafteron their children, there is no difference us to the validity of the wakf onsuch children; whatever difference there is, refers to the reservation by thewakif of the whole of the produce for himself daring life, but none as to thelawfulness of the dedication in favour of the wakifs children.

40. In the Majmaa-ul-Anhar, another collection of decisionscompiled towards the end of the last century, it is laid down: "There isabsolutely no difference between any lawyers about the validity of wakfs infavour of ones awlad (children or descendants),"

41. The same principle is laid down in theFatawa-al-Ankirawi of which Mr. Morley speaks as follows:

The Fatawaal-Ankirawi, by the Shaikh-ul-Islam Muhammad BenalHusain, who died in A.H. 1098 (A.D. 1686), is according to the doctrine of AbuHanifa, and is a work of great authority.

42. The Fath-ul-Kadir, a work of the highest authority,frequently quoted by the Law officers (See Fulton, 345), by Kamal-ud-dinMohammed-as-Siwasi, a lawyer of Irak, who died in 1456, expressly enunciatesthe validity of such wakfs.

43. In page 858 of the printed copy there is a passage whichis worthy of note:

And when any one among the recipients of the benefactiondies, and the wakif has made no mention of what would become of his share (inthe usufruct) upon his decease, in that case the usufruct will be divided amongthe (wakifs) surviving children every year, and will be given to both theaffluent and the indigent among them, unless he has provided that the wakf isfor the needy of (his children).... It must be known (literally, know) thatwhen he (the wakif) mentions (in the wakf) his children and kindred, the wakfis valid for the affluent (and indigent) among them, unless he has specifiedthat it is for the needy of them alone, as I have already mentioned; but if itis for others than they, etc.

44. The Bahr-ur-Raik (see 1 Sel. Rep. 18) (1562), a work ofgreat authority in this country, states that "there is absolutely nodifference of opinion regarding wakfs in favour of descendants."

45. But of all the works on Mahomedan law which possess aninterest for those who are charged with the administration of justice in thiscountry, the most important is the great Code which was compiled in India, inthe reign of Aurungzeb Alamgir, by Indian Judges and Muftis, barely a hundredyears before the establishment of British rule. Of the Fatawa Alamgiri, Mr.Morley, writing in 1850, speaks as follows:

Of the collections of decisions now known in India, none isso constantly referred to, or so highly esteemed, as the Fatawa-al-Alamgiri;and although, as has been stated, the Patawa Kazi Khan is reckoned to have anequal authority with the Hidaya, it is neither so generally used, nor sopublicly diffused, as the Fatawa-al-Alamgiri. The latter work from itscomprehensive nature is applicable in almost every case that arises involvingpoints of Hanafi Law, and is on that account produced and quoted as anauthority, almost every day, in the Courts in India. The Fatawa-al-Alamgiri wascommenced in the year of the Hijrah 1007 (A.I). 1666), by order of the EmperorAurungzeb Alamgir, by whose name the collection is now designated.

46. This Code has been cited and followed not only in theold Sudder and Supreme Courts, but also in the High Court of Calcutta. As Ihave already mentioned, Kemp, J., decided the case of Khajah Hossein Ali v.Shahazadee Hazara Begum 12 W.R. 344 S.C 498 : 4 B.L.R. A.C. 86 upon the lawlaid down in that work, and in Mullick Abdoul Guffoor v. Muleka I.L.R. 10 Cal.1112, referred to it frequently. In it the subject of wakfs on ones self andon ones children and posterity is treated in two aspects. In Section II,Chapter III, Volume II, page 471, Calcutta Edition (Baillies Digest, secondedition, page 576), the recognized law as to the validity of wakfs in favour ofones self and ones children and descendants is discussed in detail. InChapter IV, page 495 (Baillies Digest, second edition, page 596), relating toconditions in wakfs, the subject is dealt with by way of reservations orconditions. In other words, decisions are quoted to show that a man may make awakf either directly constituting himself and his descendants the recipients ofthe benefaction with an ultimate reserve for the poor; or may make a wakf ingeneral terms, or expressly in favour of the poor, and reserve the usufruct forhimself and his family so long as they exist. The dedication is valid in bothcases. A cursory study of Baillies Translation would show what is laid down inthe Alamgiri, viz., that there is absolutely no question about the validity ofa wakf in which ones descendants are the recipients of the benefaction; andfurther, that the view expressed by Mohamed, the disciple of Abu Hanifa, inaccordance with Shiah notions, that the endower could not reserve any benefitfor himself, was never followed, and that decisions have always been inaccordance with the rule laid down by Abu Yusuf.

47. The Fatawa Alamgiri was substantially the Mussulman Codeof India, and the law derived from it, or from authorities quoted in it, hasbeen recognized and given effect to by the Courts of Justice ever since theestablishment of the British power in this country.

48. From the promulgation of Islam up to the present daythere has been an absolute consensus of opinion regarding the validity of wakfson ones children, kindred and neighbours. Practical lawyers, experiencedjudges, high officers of every sect and school under Mussulman sovereigns areall in unison on this point. There are minor differences, viz., whether a wakfcan be created for ones self, whether the unfailing object should bedesignated, whether the property should be partitioned or not, whetherconsignment is necessary or not; but so far as the validity of a wakfconstituting ones family or children the recipients of the benefaction, inwhole or in part, is concerned, there is absolutely no difference. A wakf is apermanent benefaction for the good of Gods creatures: the wakif may bestow theusufruct, but not the property, upon whomsoever he chooses and in whatevermanner he likes, only it must endure for ever. If he bestows the usufruct inthe first instance upon those whose maintenance is obligatory on him, or if hegives it to his descendants so long as they exist to prevent their falling intoindigence, it is a pious act,-- more pious, according to the Prophet, thangiving to the general body of the poor. He laid down that ones family anddescendants are fitting objects of charity, and that to bestow on them and toprovide for their future subsistence is more pious and obtains greater"reward" than to bestow on the indigent stranger. And this isinsisted upon so strongly that when a wakf is made for the indigent or poorgenerally, the proceeds of the endowment is applied to relieve the wants of theendowers children and descendants and kindred in the first place (seeBaillies Digest, 2nd Ed., 593). When a wakf is created constituting the familyor descendants of the wakf the recipients of the charity so long as they existthe poor are expressly or impliedly brought in not for the purpose of makingthe wakf charitable (for the support of the family and descendants is a partand parcel of the charitable purpose for which the dedication in made), butsimply to impart permanency to the endowment. When the wakifs descendantsfail, it must come to the poor. So it is an enduring benefaction--an act ofibadat or warship, to use the language of the Jawahir-ul-Kalam,--an act bywhich kurbat or "nearness" is obtained to the Deity, according to theBahr-ur-Eaik.

49. Mr. Woodroffe contended that, as in none of the SudderCourt cases was there any question relating to wakfs in which the family wasthe recipient of the benefaction, therefore such wakfs must be recentinventions. I cannot accept this as correct. I have already pointed out thatfrom the lifetime of the Prophet down to the introduction of British rule inthis country such wakfs were never doubted, and if we turn to pages 337 to 342of Macnaghtens Principles and Precedents of Mahomedan Law, we find fatwas ofthe Law Officers given in proceedings before the Court dealing with thedistribution of the income among the descendants of the grantees, and nobodyseems to have dreamt of raising any objection to the validity of wakfs for themaintenance of the endowers descendants. The value of these precedents isshown by the fact that they were acted upon in the old Sudder Court itself [seeWasik Ali Khan v. Government 5 Sel. Rep. 363 (O);

50. One other remark is necessary on the point. The grantsreferred to in Macnaghtens Precedents were not of a posthumous character.Every one who knows anything of Indian Mahomedan life must be aware how shrineshave sprung up. A holy personage, a dervish, a sufi, comes and settles in aparticular place, has becomes the spiritual guide (the Pir) of the people ofthe neighbourhood. Calibacy being discountenanced by the precepts ofMahomedanism, these men are always married and have families. Grants are madeto them for their own support and the support of their families. During hislifetime his place of abode is called either a takia or an asthana; after hisdeath the place where he is buried becomes a dargah or shrine. His descendantstake not only the profits of the lands granted to them, but also the offeringsmade by his disciples at his shrine.

51. Again, in considering the absence of cases in the SelectReports bearing on the present question, two facts must be borne in mind, (1)that the Select Reports contain only selected cases, and (2) that from the year1765 to 1864 the Mahomedan law Officers were in existence. Though deprived oftheir judicial functions of 1793, they continued to be the expounders of theMahomedan law. From 1773 of 1864 the registration of documents was in the handsof the Kazis; but they were conveyancers as well, and they did the work not forMahomedans only. The Mahomedan Law Officers were the real adjudicators ofquestions of Mahomedan law. In the majority of cases they decided the disputeswithout the parties having recourse to the Courts of the Company with itsinterminable delays and complications,--its plaints, its answers, itsreplications and rejoinders. In case of wakfs for the support of the wakifsfamily, where the rules regarding the application of the income of the estateand the successor to the mutwalliship were laid down in precise terms, therewas hardly much room for dispute; and when any dispute arose they were settledby the Fatwa of the Mufti or the Kazi out of Court. So long as the Law Officersremained and until 1864, only two classes of cases, speaking in general terms,came before the Courts : one relating to the nature of grants made toindividuals by Mahomedan Sovereigns and Chieftains under the designation ofmadadmash or Inam Altamagha (maintenance grants), and the other relating toquestions of succession to the office of mutwalli in certain publicinstitutions of a religious character. It is absurd to suppose that thoughtheir law and their religion recognised in explicit terms the lawfulness ofwakfs constituting ones children and descendants as the immediate recipientsof the benefaction, though the Mahomedan Code of India, the Fatawa Alamgiri,contained minute regulations concerning the same, there existed no suchinstitution among the Mussulmans, and that they never availed themselves of theprovisions of he law to create such wakfs.

52. Coming now of the cases, Moohummud Sadik v. MoohummudAli 1 Sel. Rep. 17 (O) 23 N. (1798 the question was whether the son of anexecutor was entitled to remove a mutwalli appointed by the latter; and thatquestion gave rise to another subsidiary one, viz., whether the Mutwalli, inthe absence of any special provision, was entitled to bequeath the trust by will.In delivering their Fatwa, the Muftis prefaced it with the definition of awakfs as given by Abu Yusuf and Mohamed: "That wakf, according to theopinions of Yusuf and Mohamed (which on this point are adopted as law), impliesthe relinquishing the proprietary right in any article of property, such aslands, tenements, and the rest; and consecrating it in such manner to theservice of God that it may be of benefit to men : provided always that thething appropriated be, at the time of appropriation, the property of theappropriator, as is specifically stated in the Bahar-ur-Raik.

53. I am unable to accept the suggestion made by the learnedCounsel for the respondents, that this Fatwa shows that a wakf must, from itsinception, be for indigent strangers. The definition is taken from theBahar-ur-liaik, and I have already shown from that work that a wakf on onesdescendants is valid without any difference.

54. In the case of Hya-on-nissa v. Mofukhir-ul-Islam 1 Sel.Rep. 107 (O) 140 (N), the only question before the Court related to the rightof succession to the office of Sujjadanashin of a religious establishment, andas it appeared that the succession was confined, under the royal grant, to thelineal descendants of the grantee, it was held in accordance with the Fatwa ofthe Law Officers that the respondent was entitled to the office, Hya-on-nissa,though a lineal descendant, being disqualified by her sex from officiatingSujjadanashin.

55. In the case of Hyatee Khanum v. Koolsoom Khanum 1 Sel.Rep. 214 (O); 285 (N) the sole question was whether a wakf of an undividedshare of a certain property was valid or not under the Mussulman law. OneMohammed Taki being in possession of certain lands appropriated them to theendowment of a mosque at Rangpur and executed a deed to the plaintiff, hiswife, entitled Tumlik-o-towliatnamah to the following effect:

I being in possession of Mouzahs Kubdee, etc., as soleproprietor hereby endow a mosque with them, and confer the trusteeship on mywife, Hyatee Khanum, to defray with their profits the charges of theestablishment. Of the surplus which may remain after defraying these chargesthe trustee shall reserve to herself 91/2-annas; and the remainder be shared bymy other wives. The trustee shall appoint all officers, and may bequeath thetrusteeship to whom she pleases. If she name nobody to succeed to it, it shalldevolve after her death on any worthy son or grandson of mine, excepting AliNuki, whom I debar and disinherit.

56. The wakf was, in the first instance, in favour of afamily mosque and for the support of the endowers two wives. It appeared thatMohammed Taki was entitled only to a fractional share of the lands, and the LawOfficers, in accordance with the rule of Abu Yusuf and differing from Mohammed,held that the wakf or endowment took effect as regarded Mohamed Takis share,and the case was decided accordingly. In the opinion of the Law Officers (asgiven in the report) occurs the following expression: "the deed by whichthe estate was assigned in trust for pious uses by Mohammed Taki isvalid." Mr. Woodroffe based a somewhat strong argument upon these words.He contended that the use of the word "pious" in connection with amosque showed that a wakf for such purposes only could be regarded as pious. Ihave examined the original record in this case, and I find that there is nosuch word as pious in the Fatwa at all. The words are "Mohammed Takihaving made a wakf under (tahat) a mosque and Imambara and given its towliat toHyatee Khanum, appellant, effect should be given to it."

57. In the case of Kulb Ali Hoosein v. Syf Ali 2 Sel. Rep.110 (O) : 139 (N) (1814) the question was as to the meaning of a madad mashtenure, viz., whether it was an absolute grant to the donee or by way of awakf. The contested lands had been granted to one Durwesh Hossain, ancestor ofthe defendant, "for the support of religious mendicants and students andthe repairs of mosques and other edifices," and the superintendence wasalways to be in the hands of Durwesh Hossain and his descendants. The Court,acting under the Fatwa of its Law Officers, held that though the term wakf wasnot used in the grant, yet having regard to the nature of the objects the grantdid not give Durwesh Hossain or his heirs the power of alienation. In their Fatwa(as given in the report) the Law Officers stated that--

The appropriation of land or other property to pious andcharitable purposes is sufficient to constitute wakf without the express use ofthat term in the grant.

58. That case has no bearing on the present question. Thereis not a word in the judgment or in the Fatwa to warrant the inference that,besides the objects mentioned in the document of grant to Durwesh Hossain, awakf may not be created for any other object. I may add that the original recordof this case is missing, and have, therefore, been unable to verify the abovepassage.

59. In the case of Qadira v. Kubeeroodeen Ahmud 3 Sel. Rep.407 (O) : 543 (N) (1824) there was exactly the same question. A grant had beenmade by the Emperor Alamgir to a saintly person of the name of Shah KubeerDurwesh who had established a khankah. One of the descendants, ShahShumsoodeen, alienated portions of the property, partly in favour of MussummatQadira, and partly in favour of one Jewun Doss Sahoo. Upon Shumsoodeens death,Kubeeroodeen was appointed Sujjada-nashin, and, as it was a royal grant, hisappointment was confirmed by Government. He, thereupon, sued Qadira and JewunDoss Sahoo in two separate suits for the recovery of the properties conveyed tothem respectively by Shumsoodeen. The case of Qadira came up to the SudderCourt, and was decided in August 1824. The case of Jewun Doss Sahoo went up tothe Privy Council, and was decided in December 1840. In both cases it was heldthat, though the term wakf was not used in the grant, yet, having regard to thegeneral purpose for which it was made, the royal intention was that it shouldbe a perpetual and inalienable property in the nature of a wakf,,

60. In the case of Abul Hasan v. Haji Mohammad MasihKarbalai 5 Sel. Rep. 87 (O) : 104 (N) (1831), the sole question was whether averbal endowment of a cemetery corroborated by circumstances was valid or not.It was held to be valid, and the endower was declared incompetent to alienateit.

61. In the case of Muhammad Kasim v. Muhammad Alum 5 Sel.Rep. 133 (O) 159 (N) (1831), the only question was whether, upon a division ofjoint property among several brothers, a piece of property acquired by one ofthem exclusively and dedicated by him could form the subject of partition.There was no other question in the case. But it will be observed that thededication was to a Pir. A Pir (see Herklots Qanoon-i-Islam, page 282) is asaintly individual who teaches his disciples (murids) religious truths. As Ihave said before, they all marry and have families. So a dedication to a Pir,called a Pirottur grant, is a wakf for the support of the Pir and his family,and after them for the poor generally.

62. In the case of Wasik Ali Khan v. Government 5 Sel. Rep.363 (O) : 427 (N) (1831), the only question involved was whether a curator ormutwalli could be removed by the Judge or the ruling power "if he besuspected or if it be for the good of the trust."

63. The case Imam Bukh v. Bibi Shahu 6 Sel. Rep. 22 (O) : 24(N) (1835) has no bearing on the question I am discussing. In that case thepoint at issue was whether certain lands appertaining to a dargah wereheritable or alienable, and whether the respondent, a female, could hold theoffice of Sujjada-nashin. The Sudder Court decided the latter point against thelady on the authority of a case given in page 343 of Macnaghtens Principlesand Precedents.

64. The next reported case in order of date is that of Doed. Jaun Beebee v. Abdollah Barber (Fulton, 345) (1838). In that case theultimate benefit was not given to the poor :in express terms. The ladydedicated the property in general terms as is customary among Mussulmans. Inthe first paragraph she provided that after paying the revenue and taxes sheshould appropriate as much of the produce as was required for her own use, andthe remainder to "hereditable and charitable purposes." She providedfurther that her several relatives should receive their maintenance asheretofore; that she should have the power of increasing or decreasing thenumber of incumbents; and the repairs of the mosque, etc., and other expensesconnected therewith in Ramzan and the Eed should be defrayed from the produce.By paragraph 2 she constituted herself the mutwalli during her lifetime; afterher death, her daughters son Abdollah was to be the mutwalli, and after himsome one among her relations most deserving of the office; and she declaredthat the property was to be for ever inalienable.

65. It will be seen that the usufruct was, after paying therevenue, to be appropriated to the endowers own use and towards themaintenance of the members of her family. The amounts disbursable for therepairs of the mosque and for the performances of the festivals were postponeduntil after the maintenance of the family. But neither the decision of theJudges nor the opinion of the Law Officers turns upon this provision, andnobody said that the provision for the maintenance of the family invalidatedthe wakf. It has been argued at the bar that the wakf was for the support ofspecific individuals then in existence, but a careful study of the documentshows that that notion is not well founded. The word "hereditable" inthe first paragraph, the power of increasing the number of the persons receivingmaintenance, the appointment of mutwallis one after another for the purpose ofcarrying out the directions in the wakfnama, coupled with the answer of the LawOfficers to the third question, all show that the provision for maintenance didnot refer to "specific individuals then existing," but to theendowers descendants at large. It was never attempted to be argued in thatcase that the wakf was bad, because it was wholly or mainly for support of theendowers family, or because it was not wholly, or mainly, or substantially fora mosque or for the poor. It was impugned on the only ground open under theMahomedan law that the wakif had reserved the usufruct for herself. And thecase was decided on the Fativa of the Law Officers founded on well-knownauthorities, following the rule laid down by Abu Yusuf, who has always been theHanafi guide in these questions, and who has been so recognised as such by theSudder Court itself.

66. The case of Abdoolla v. Rejesri Dossea 7 Sel. Rep. 268(O) : 320 (N) (1846) is the first reported case regarding a loan upon wakfproperty, and has no bearing on the present question. Nor have the cases in theSudder Dewany Adawlut Decisions. In the case of Khodabundha Khan v. OomutulFatima S.D.A. (1857) 235 (1857) the sole question for determination turned uponthe construction of a Shiah Will. The testator had provided for the performanceof certain religious acts after his death, and had further provided that afterdefraying the expenses thereof the surplus should belong to one Janee Khanumand after her death to the executor. There was no mention of the word wakf inthe document. Such a case is expressly provided for in the Sharaya. The learnedJudges, "on the interpretation of the wording of the Will," held thatit was an absolute devise in favour of Tussuduck Hossain (the executor),subject to certain trusts and the life-interest of Janee Khanum in the surplusprofits.

67. In Dairymple v. Khoondkar Azeeful Islam S.D.A. (1858),586 the only question was whether a mutwalli could grant a permanent lease. Thelearned Judges, who had not the document before them, expressed an opinionthat--

Where the property is altogether wakf, i.e., when the wholeof the profits are devoted to religious purposes, we think the above to be thecorrect ruling.

68. [The ruling referred to being a Hindu case in which itwas held that a shebait could not grant a lease beyond his life.]

69. "But," added the Judges,

when the office of mutwalli is hereditary and the incumbenthas a beneficial interest in the property, we look upon it as an heritableestate burdened with certain trusts, the proprietary right of which is vestedin the mutwalli and his heirs. In such a case there appears no sufficientreason why the incumbent should not exercise a right possessed by otherproprietors to grant leases even in perpetuity.

70. Here the learned Judges had in view a case where theproperty was not wholly and absolutely dedicated, and where the mutwalli haddistinctly a beneficial interest in the corpus. There is nothing to show thatthe Judges intended to imply that an absolute dedication constituting themembers of a family as the recipients of the benefaction would not be a goodwakf.

71. In the case of Bibee Kuneez Fatima v. Bibee Saheba Jan 8W.R. 313 (1867), the question was whether certain properties which had beenconveyed by one of the defendants to the others were or were not wakf andconsequently inalienable. In dealing with the case, Judges (Kemp and Glover,JJ.) considered two points, (1) the right of the plaintiff to sue, and (2) themeaning of the grants in the case. There was no mention of the word wakf in anyof the sanads put forward by the plaintiff; they were all in fact Madad Maashgrants. Kemp, J., dealing with the first point, said, "the grants of the landsin dispute make no mention of any provision for the maintenance of theplaintiff or any other member of the grantees family." There is nosuggestion that, had there been any such provision, it would have been invalid,or that there could be no wakf for that purpose. Then after discussing that thealleged endowment did not come under the provisions of Act XX of 1863, Kemp,J., proceeded to show that the plaintiff had no interest to entitle her to sue.

72. As regards the sanads (which Kemp, J., takes care to addwere copies or copies of copies), he gives the substance of one of them:

That the grantee, i.e., Syud Mahomad Mir, had a large familyto support, and had to defray the expenses of a khankah for travellers, andthe benighted, for students and mendicants who beg at his door; that the saidgrantee found it difficult to discharge all these duties which involvedconsiderable expense; that in consideration of this the villages detailed inthe grant were given to him at a fixed annual jama of Rs. 896. The abwabs andother cesses hitherto levied upon the grantee were remitted and the aforesaidjama, which had all along been paid, was declared to be fixed. It was furtherrecited that the grantee, after paying the said jama, was to enjoy the profitsof the property, to support himself therewith, and to pray for the grantor.

Now, it is very clear that this is not a grant constitutinga wakf. There is no dedication of the properties solely to the worship of God,or to any religious or charitable purposes. The grant recites that the granteeand his predecessors have hitherto held the lands at a jama of Rs. 896, whichjama is declared to be fixed at that rate henceforth. In consideration of thecharitable disposition of the grantee, and the expenses which he apparentlyvoluntarily incurred in supporting poor students, in giving alms to mendicantsand food and shelter to travellers, the grantor remits the payment of abwabsand other cesses, which in the days of the Nawab Nazims were a heavy impost,and directs the officers of tehsil to refrain from exacting the same from thegrantee. For this indulgence, the grantee was requested to give the grantor thebenefit of his prayers. The grantee was to enjoy the profits after paying thejama fixed, via., Rs. 896. In short, the grants were grants to an individual inhis own right and for the purpose of furnishing the means for the subsistenceof the grantee, and nothing further.

73. To my mind it is perfectly dear that in using the terms"religious" or "charitable" in the passage above quoted,Mr. Justice Kemp used them in the Mahomedan sense, that is, as meaning apurpose which is regarded as religious or charitable by the people among whomthe question arose. He had already shown that there was no provision for themaintenance of the grantees family. He then pointed out that there was noprovision for the support of the khankah or travellers, or students, ormendicants; that, on the contrary, in consideration of the charitabledisposition of the grantee, who apparently voluntarily incurred expenses in theperformance of good acts, the grant was made personally to him, in return forwhich he was to give the grantor the benefit of his prayers. He accordinglyheld that such a grant could not be regarded as a wakf under the Mussulman law.To imagine that in using the term "charitable," he meant to confine itto a dedication solely for the poor would be going against he whole purport ofhis judgment.

74. In the case of Khajah Hossein Al v. Shahzadee HazaraBegum 12 W.R. 344 : S.C. 498; 4 B.L.R. A.C. 86 (1869), the only question fordetermination, as pointed out by Kemp, J., was, whether the subsistence of amortgage, at the time the endowment was made, rendered such endowment whollyinvalid under the Mahomedan law. In the course of his decision the learnedJudge (who differed from his colleague, MARKBY, J.) made various observationspertinent to the case before him in support of his views. Kemp, J., as well asthe Appellate Court which affirmed his judgment, took the law entirely from theFatawa Alamgiri. He showed, quoting Haringtons Analysis, that Fatwas or lawdecisions "are given primarily according to Abu Yusuf, and next accordingto Imam Mahomed." I have not been able to find in the records of the HighCourt the wakfnama in this case, but a portion of it is quoted in MARKBY, J.sjudgment, and throws sufficient light on the subject under discussion.

In this document, "says Mr. Justice MARKBY," afterreferring to the duty which he felt it incumbent on him to perform of makingprovision for the assistance of travellers and the maintenance of the heirs ofhis late son, he states as follows:

Consequently, for the sake of the maintenance of KhajahHossein Ai, I do hereby appoint him (who is my grandson) as a mutwalli of theaforesaid Astana or sepulchre under the following conditions : that the saidHossein Ali shall neither be competent to transfer the aforesaid property undera sale, gift, or mortgage, nor to transfer the wakf property in any other way.He is hereby authorised to take care and to assist the travellers and the poor.He is to attend the fatihas of shabebarat, the mohurrum and eeds, and to allowsuch expenses as are for solemnizing the above festivals. He is to appropriatesuch amounts as would remain in hand, after the payment of the sudder jama,from the net proceeds of taluk Lot Belsar and from the produce of the gardens,for his personal expenses as well as for his family, i.e., his grandfather andmother.

75. It will be seen, therefore, that the endowment was forthe maintenance of the endowers grandson, and that the proceeds went after thepayment of the sudder jama towards his support and that of his family. Theprovisions relating to the travellers and the poor and the festivals were mererecommendations. He was authorised to take care and to assist the travellersand the poor. He was "to attend to the fatihas of shabebarat, themohurrum, and the eeds," the usual Mahomedan festivals, "and to allowsuch expenses as are for solemnizing the above festivals." There was nospecific dedication for those purposes.

76. Mr. Justice Kemp dealing with one of the objections ofthe lower Court to the wakf in that case says as follows:

As to the endowment being uncertain and conditional, I donot find, on perusal of the towliatnama, that such is the case.

The performance of certain ceremonies at the great Mahomedanfestivals is provided for, the festivals are distinctly enumerated, the poor,who are always with us, are to be relieved, and travellers looked after. TheGovernment revenue, or in this case the rent, is to be paid, and the residue isto be expended in the maintenance of the relatives (who are also specified) ofthe endower, that is, of his mother and grandmother. The sister of the endoweris also to be maintained and a small marriage portion given to her. It will beseen that the poor are provided for, which is the primary object of every wakf.Settlements in favour of relations who are specifically named are made. Such anendowment is in every respect a lawful one under the Mahomedan Law.

77. It was contended upon Mr. Justice Kemps words, "theprimary object of every wakf is to provide for the poor," that where thatis not the case the wakf is not valid. The learned Judge was pointing out theseveral particulars in the document before him, which went to establish thatthe endowment was neither uncertain nor conditional. And in doing so he pointedout that the poor were also provided for. And he added, what is no doubt truein one sense, but not so in another, that the primary object of every wakf isto provide for the poor, for it is unquestionable that there are many wakfswhich have not the remotest connection with the poor, e.g., a wakf for amosque. But as I said before his observation is correct in one sense; in everywakf, the benefaction of which is bestowed upon any individual or on onesdescendants, the charity is continued, upon their extinction, expressly or byimplication of law, to the general poor. The poor are thus always present inthe mind of a Mahomedan making a wakf. That Mr. Justice Kemp did not mean tohold that only such wakfs were valid as were intended for strangers or toprovide for the general body of the poor, is apparent, first, from the factsthat in that very deed, which he held to be valid, the poor formed a secondaryobject of the wakf, and, secondly, from his reference to Baillies Digest,pages 585, 586, where the subject of wakf on ones descendants is treated.

78. Whatever interpretation may be sought to be put upon thewords of Kemp, J ., the broad fact remains that the immediate recipients of thebenefaction in that case were Khajah Hossein Ali and his family, though thedeed contained discretionary directions about helping the poor and performingthe usual family festivals. To my mind that case, instead of being an authorityagainst the institution of wakf constituting the endowers family as therecipients of the benefaction, is an important authority in support of it.

79. In the case of Muzhurool Huq v. Puhraj DitareyMohapattur 13 W.R. 235 (1870), the plaintiff sued to obtain possession ofcertain lands which he had purchased with notice that they were wakf. Thespecial appellant had intervened in the suit alleging that he was the mutwalliunder the wakfnama. The Judge in the Court below had decreed the suit on theground (1) that the lands had not been endowed by the plaintiffs vendor, and(2) that the deed not being registered could not be admitted in evidence, andthat therefore the intervenor had no locus standi. Dealing with the firstground, Kemp, J., examined the terms of the deed in order to show that they allconstituted a valid endowment:

Looking to the terms of the deed," he said, "ithas all the characteristics of a valid endowment under the Mahomedan law. Theprimary objects for which the lands are endowed, and which are the objectswhich all Mahomedans have in view in endowing lands, are to support a mosqueand to defray the expenses of the worship conducted in that mosque. The mosquehad admittedly been in existence for a long period on the endowed land. It isfirst provided that from the profits of the endowed lands the mosque is to berepaired and lighted and furnished on certain festivals; that travellers arenot to be allowed to go away hungry; that an establishment, including aMuazzin, or caller to prayers, and other necessary servants of the mosque areto be kept up; that mendicants are to have alms given to them; that a certainnumber of poor scholars are to be educated in Arabic, which necessitates theemployment of a teacher; and lastly, that from the remaining profits theexpenses for the marriages, burials and circumcisions of the members of thefamily of the mutwalli Muzhurool Huq were to be defrayed. This was to be doneafter the primary objects for which the endowment was made, and which objectshave been already detailed above, were fully accomplished.

80. In this case it will be observed the learned Judge callsan endowment in favour of a mosque as the primary object of a wakf, whereas inthe previous case he had stated the poor to be the primary object. It isevident, therefore, that Kemp, J., could not have intended in either of thesecases that his words should be taken as exhaustive, for he had already spokenof a wakf being in favour of any religious or charitable purpose; and he waswell aware that, under the Mussulman law, ones family were objects of charityin a higher degree than indigent strangers, and therefore entitled to beclassed among the poor in the sense in which it is understood in the Mussulmansystem. The learned Judge then proceeded to say:

We are of opinion that the mere charge upon the profits ofthe estate of certain items which must in the course of time necessarily cease,being confined to one family and for particular purposes, and which after theylapse will leave the whole profits intact for the original purposes for whichthe endowment was made, does not render the endowment invalid under theMahomedan law. A person may make an endowment settling lands on himself andenjoying the profits during his lifetime, and after his lifetime devoting the profitsto the support of the poor, the main object of the Mahomedan law being that theprofits of the land endowed should be endowed for a purpose which alwaysremains in existence. Now the poor are always with us, and therefore a manmaking an endowment and enjoying the profits during his lifetime, to go to thepoor after his death, does not make the endowment for an uncertain ornon-existent object. *******

81. Here again he was dealing with the question by way of anexample, and there is no shadow of a ground for suggesting that theillustration is exhaustive or exclusive; on the contrary, the very fact that hecontemplated a provision for the members of a particular family for particularpurposes would show that it never entered his mind to suggest that a wakf inwhich the proceeds are applicable towards the maintenance of the members of theendowers family was invalid. The views enunciated by Kemp, J., in the passagelast quoted have received the approval of their Lordships of the Privy Councilin the case of Mahomed Ahsanulla Chowdhry v. Amarchand Kundu I.L.R. 17 Cal. 498: I.L.R. 17 IndAp 28, but that passage deals with the question which he wasdiscussing from two aspects, both of which are provided for in the FatawaAlamgiri, an authority upon which that learned Judge relied considerably. Inthe Fatawa Alamgiri, Volume II, page 495 (see Baillies Digest, 2nd Edition,page 595), it is laid down that "when a man has made an appropriation ofland or something else, with a, condition that the whole or part of it shall befor himself while he lives, and after him for the poor, the appropriation isvalid according to Abu Yusuf, and the Sheikhs of Balkh have adopted hisopinion, and the Fatwa is in conformity with it." The instances in whichthis may be done are given. And then comes this passage:

So also if he should say, this my land is a sadakahappropriated, he (the mutwalli) will pass the produce to me while I live; thenafter me, to my child and childs child and their nasl for ever while there areany, and when they cease, to the indigent, this also would be lawful. So also,if he should make a condition that he may maintain himself and his child andpay his debts out of the produce, and that when death happens to him, theproduce of this estate is for such an one, the son of such an one and his childand childs child, and his nasl.... A person makes an appropriation for thepoor with a condition that he may eat and feed others (out of its produce) solong as he lives, and that after his death it is to be for his child, and inlike manner to his childs child for ever, while there are any descendants,the wakf is lawful with such a condition.

82. Here the appropriation is either in general terms or isexpressly for the poor, with a condition that the benefaction should bebestowed wholly or partially on the endower and his family so long as theyexist as part and parcel of the charitable purpose for which the dedication ismade, the wakf to go to the poor (meaning indigent strangers) on the extinctionof his descendants,

83. In page 474, Volume II of the same work (BailliesDigest, 2nd Edition, page 576) it is laid down, however, that a man may make awakf of himself:

A man says my land is a sadakah mowkoofa5 on myself. Such anappropriation is lawful according to what is approved. So also, if he shouldsay I have made a wakf of it on myself, and after me on such a one and thenupon the poor, it Would be lawful according to Abu Yusuf. And if one should saymy land is mowkoofa on such a one and after him upon me, or should say Upon meand Upon such a one, or upon my slave and upon such an one, the approvedopinion is that it would be valid.

If a man should say I have made a wakf of it on my children(awlad), males and females are included.

If one should say this my land is a sadakah mowkoofa on mychild, and child of my child, the child of his loins, and the child of hischild in existence on the day of the settlement and those who are bornafterwards are included, and the two generations participate in the produce,but none below them are included, nor the children of daughters according tothe Zahir Rewayat; and the Fatwa is in accordance with it. And if he shouldsay, upon my child and child of my child, and child of the shild of my child,mentioning three generations, the produce is to be expended upon his childrenfor ever, so long as there are any descendants, and is not to be applied to thepoor; while one remains the wakf is to them and the lowest among them; thenearer and mote remote being alike unless the appropriate. say in making thewakf the nearer is nearer, or say on my child, then after them, on the childof my child or say, generation after generation (bat nan baad batn), when abeginning must be made with them with whom the appropriator has begun.

84. In these cases the wakf is upon himself or upon hischildren and afterward on the poor.

85. Mr. Justice Kemp affirms both these principles. In thefirst part of the passage under reference, he recognises the Mussulman lawgiven in page 591 of Baillies Digest. The words "the mere charge upon theprofits of the estate of certain items, which must in the course of timenecessarily cease, being con fined to one family and for particularpurposes," be it for the payment of the endowers debts or the maintenanceof his family or the payment of their marriage expenses, "and which afterthey lapse will leave the whole profit intact for the original purposes forwhich the endowment was made," show that the learned Judge recognises thevalidity of the conditions which may be superimposed by the endower upon theapplication or enjoyment of the property dedicated, as laid down in theAlamgiri. In the second pal he points out that a person may make an endowmentsettling lands of himself and enjoying the profits during his lifetime, andafter his lifetime devoting the profits to the support of the poor," andmark these words "the main object of the Mahomedan law being that theprofits of the land endowed should be endowed for a purpose which alwaysremains in existence. Here there is no reference to a "charge of certainitems" upon the profits an estate dedicated for some specific purposes.The principle is state in the clearest terms that a person may make anendowment "settling land on himself" with the reversion for the poor"who are always with us," who are, in other words, a perpetual objectof bounty. Reference is made to the case of the endower himself, because onthat point Abu Yusuf and Mohammed we: disagreed, and the learned Judge enunciatedthe rule laid down by the former. There is no reason for suggesting that heintended cutting down the Mahomedan law. If his words are studied with somecare, it will be four that he enunciated the recognised rules of Mahomedan law,viz., that the endower may make an appropriation and condition that he and hisfamily children shall enjoy the usufruct so long as they last, the whole goingto the general poor after they have ceased to exist; or that he may directlyendow the lands for himself or his children or descendants, and in the end forthe poor; in other words, constitute himself and his children the recipients ofthe charity in the first instance, the general poor taking their place on theextinction of the family.

86. The case of Doyal Chund Mullick v. Syud Keramut Ali 16W.R. 116 has no bearing on the present discussion, but it is important in onerespect. It shows that again Kemp, J., went to the Fatawa Alamgiri (BailliesDigest, old Edition, page 551, 2nd Edition, page 559) for the chief elements ofwakf, and that he used the expression "seeking for nearness" inexactly the sense in which Mahomedan lawyers use it.

87. So far there is nothing to show that the Courts weredisinclined to recognise as valid wakfs in favour of ones descendants. On thecontrary, all the indication is on the other side. For the first time in 1881,seventeen years after the abolition of the Law Officers, in the case of MahomedHamidulla Khan v. Lotful Huq I.L.R. 6 Cal. 744 : 8 C.L.R. 164, it was held thata wakf an the members of ones family was invalid.

88. In deciding that case the learned Judges supposedBaillie and Macnaghten to be in conflict. But this view is certainly notcorrect. Principle 4, Chapter X of Macnaghtens Principles and Precedents ofMahomedan law, shows that an endowment may be made in favour of the children ofa person and on their failure for the poor. In page 338 and page 341 cases aregiven which refer distinctly to wakfs for the support of particular families,The quotation in page 342 from the khazanut-ul-Muftiin is emphatic. Nor isthere anything in the Hedaya to warrant the view taken by the learned Judges.It must be remembered that the English version is a rendering of a Persiantranslation of the original Arabic Hedaya with many interpolations andomissions. Mr. Hamilton in translating the Persian version into Englishrendered the word wakf into "appropriation;" but as every"appropriation" cannot be regarded as wakf, he took care to add in afoot-note that it meant appropriations of a pious or charitable nature. Thelearned Judges decided the case before them upon the authority of thatfoot-note, construing it in the trictest English sense. There is no warrant inthe Hedaya itself for that view. In the Hedaya a wakf is defined thus: "inlaw, it signifies, according to Abu Hanifa, the tying up of the substance of aproperty in the ownership of the wakif and the demotion of its usufruct,amounting to an ariat.... According to the two Disciples, it means the tying upof the substance of a thing under the rule of the property of God, whereby theproprietary right of the wakif [therein] becomes extinguished and [it] istransferred to Almighty God for any purpose by which its profits may be appliedto [the benefit of] His creatures."

89. The definition given by the Disciples has been adoptedfor the Fatwa [as is stated in Moohummud Sadik v. Moohummud Ali 1 Sel. Rep. 17(O) : 23 (N). his has been explained over and over again in all thecommentaries, in all the works of law, in decisions, and in Fatwas, to includeevery object of a meritori-tis character, by which "reward" isobtained or "nearness" sought; and a dedication for ones children isplaced in the same category as one for a mosque, the Hedaya is an elementarywork, taught in schools, and deals with questions on which Abu Hanifa, AbuYusuf, and Mohammed were in disagreement. It does not deal with the subject ofwakfs in favour of ones children, as there was absolutely no difference onthat point. In page 900 of the Arabic Hedaya printed with the Kifaya), VolumeII, the validity of such a wakf is taken for granted.

90. The learned Judges incorporate Hamiltons foot-note intothe text, and then say "Abu Hanifa undoubtedly in II Hedaya, page 334,points out that the appropriation, that is wakf, must be to some charitablepurpose." They evidently think the Heddya to be a work by Abu Hanifa, andthey impute to him a statement which is not to be found in the text. Theyconstrue the words charitable purpose "in the foot note as meaning charityto the poor; they forget that a charitable purpose in Mussulman law includesbenefactions for the support of ones family; and that Abu Hanifa himself, asstated in the Kifaya (a commentary on the Hedaya, see Morleys DigestIntroduction, page cclxix) held wakf to mean the tying-up of the substance inthe ownership of the wakif, and the devotion of its profits on the poor or onany purpose among good purposes." They hold that a wakf may be constitutedfor the benefit of the endowers family, but they think that it can only bedone by the use of the word sadakah, forgetting that sadakah only meanscharity, and that according to the Mussulman law a provision for ones familyis the best of charities, and that Baillie points out it is not necessary touse the term sadakah when the word wakf is used. They again rely upon a footnote by the translator in holding that a man must make himself a pauper beforehe can constitute himself the recipient of his benefaction. This view is whollyopposed to the Mussulman law, as will be seen on a reference to BailliesDigest, p. 593, which shows that a man need not make himself a pauper before hecan reserve the usufruct for himself.

91. Some parts of the judgment, however, would indicate thegeneral conclusion of the Judges to have been that under the guise of a wakfthe donees took an absolute interest in the estate in proportion to theirrespective shares, in which case their decision would not affect the presentquestion. That case clearly proceeded on several mistakes, and one of thelearned Judges, who decided it, subsequently resiled to some extent from theposition he took up there.

92. The case of Fatima Bibee v. Ariff Ismailjee Bham 9C.L.R. 66 (1882) was not argued at all, counsel for the defendant leaving the constructionof the documents in the hands of the Court. And the learned Judge, acting onsuch materials as the plaintiffs counsel had placed before him, set aside thewakfnamas, which seems to have been the object of the parties.

93. In Luchmiput Singh v. Amir Alum I.L.R. 9 Cal. 176(1882), the wakf was for the performance of family ceremonies, for the paymentof the wakfs debts, and the maintenance of his lineal descendants. The wakf washeld to be valid. The following passage from the judgment is worthy ofconsideration:

The fact that the Subordinate Judge who tried this case ishimself a Mahomedan gentleman of considerable attainments in Arabic learning,entitles his opinion to peculiar weight in a case of this nature; and heappears to have entertained no doubt whatever as to this wakf being of athoroughly legitimate character as to its constitution and object. Andsingularly enough the only matter which strikes us as one in respect of which,with reference to the decisions of the Courts, makes the character of thisalleged wakf at all doubtful is the very one which the Lower Court has treatedas one as to which there could be no dispute as to its being a proper object ofwakf. For, in the wakfnama, there is express provision for the maintenance of thededicators male descendants, in addition to the strictly pious and religiousobjects for which the wakf purports to have been made. The Lower Court,however, easily disposes of this question by the observation that it is quiteevident, and there is no necessity to quote any authority on the subject, thata wakf for ones self and for ones children is valid.

94. After referring to the cases of Abdul Ganne Kasam v.Hussen Miya Rahimtula 10 Bom. H.C. 7 and Mahomed Hamidulla Khan v. Lotful HuqI.L.R. 6 Cal. 744 : 8 C.L.R. 164 they say:

The wakfnama now before us is of a very different character;and having regard to the passage in it reciting the fact of dedication, wethink that, without saying whether or not we are prepared on furtherconsideration to adopt to the full the ruling above mentioned, we can treatthis wakf as actually fulfilling the condition described.

95. In the case of Phate Saheb Bibi v. Damadar Premji I.L.R.3 Bom. 84 , a portion of the dedicated property was said in execution of adecree against one of the beneficiaries; another beneficiary sued to set asidethe sale; the only question was whether the right of suit belonged to the heirsor descendants of the settlor or to the mutwallis. The Court (WEST and PINHEY,JJ.) held that the right of suit belonged to the mutwallis.

96. In Fatma Bibi v. The Advocate-General of Bombay I.L.R. 6Bom. 42 , and Amrutlal Kalidas v. Shaik Hossein I.L.R. 11 Bom. 492 (1887) thewakfs were for the settlors and the settlors descendants, and the poor as theultimate recipients were expressly designated. The Bombay High Court in boththese cases held the wakf to be valid. In the latter case, Farran, J., pointedout that the learned Judges who had decided Mahomed Hamidulla Khan v. LotfulHuq I.L.R. 6 Cal. 744 : 8 C.L.R. 164 and Fatima Bibee v. Ariff Ismailjee Bham 9C.L.R. 66 had taken for a decision what was a mere obiter in Abdul Ganne Kasamv. Hussen Miya Rahimtula 10 Bom. H.C. 7.

97. In the case of Jugatmoni Chowdhrani v. Romjani BibeeI.L.R. 10 Cal. 533 [LQ/CalHC/1884/30] , Field, J., pointed out the "essentials" to thecreation of a valid wakf. He said, in the first place, the appropriator mustdestine its ultimate application to objects not liable to become extinct;secondly, that the appropriation must be at once complete; thirdly, that therebe no stipulation in the wakf for a sale of the property and the expenditure ofthe price on the appropriators necessities; and, fourthly, that there must beperpetuity.

98. In the case of Nizamudin Gulam v. Abdul Gafur I.L.R. 13Bom. 264 there was no express provision at all for the ultimate devolution ofthe property to any religious or charitable object; and the learned Judges(following the cases of Fatma Bibi and Amrutlal) declared that the grant inwakf could not therefore be upheld. The sole ground upon which they proceededto hold against the wakf was, that there was no express ultimate trust. Thecase of Fatma Bibi was followed in this Court in Ayesha Bibi v. Golam RyderKhan (on settlement of issues), 19th November 1883, and Phudia Bibi v. MohammedKazem Isphahanee (31st March 1884); both unreported.

99. In the case of Pathukutti v. Avathalakutti I.L.R. 13Mad. 66 the wakf was to take effect on the contingency of the settlor having noissue. If she had issue the property was to go to them absolutely; if not, itwas to be wakf. Under the Mahomedan law of all the schools this wakf was badfrom its inception, and the learned Judges held so. But Mr. Justice Ayyarsupported his arguments against the validity of the wakf before him by areference to the Calcutta case of Mahomed Hamidulla Khan v. Lotful Huq I.L.R. 6Cal. 744 : 8 C.L.R. 164. The learned Judges reasoning, however, does not lendany support to the idea that he adopted the conclusion arrived at in theCalcutta case. From the judgment it is clear that the inclination of Mr.Justice Ayyars mind was that if the wakf had been out-and-out for the childrenof the settlor, and the poor had been expressly mentioned, it would have beenvalid.

100. In the case of Murtazai Bibi v. Jumna Bibi I.L.R. 13All. 261 the parties were Shiahs and the endower was a Shiah. Under the Shiahlaw, when a wakf is in favour of a specified class of people such as thewakifs family or descendants, the ultimate unfailing purpose must be expresslydesignated. This is one of the points of difference between the recognisedHanafi law and the recognized Shiah law. In the wakfnamah in Murtazai Bibiscase the poor were not mentioned, and the case could have been decided on thatpoint. But the learned Judge who decided the case was probably not aware ofthis difference, and derived the law from Hanafi cases.

101. Such was the state of the case-law on the subject ofwakfs constituting the endowers family as the recipients of the benefaction,until the decision of their Lordships in the Privy Council in Mahomed AhsanullaChowdhry v. Amarchand Kundu I.L.R. 17 Cal. 498 : I.L.R. 17 IndAp 28. There weretwo cases in the Calcutta High Court holding such wakfs to be invalid--one ofthem wholly unargued; the other proceeding on some clear mistakes and evidentlydoubted in a subsequent case, by one of the learned Judges who had decided it;two reported cases including the decision of McDONELL and MACPHERSON, JJ., inMahomed Ahsanulla Chowdhry v. Amarchand Kundu I.L.R. 17 Cal. 498 : I.L.R. 17IndAp 28 indicating that such a wakf would be valid if the unfailing object wasdesignated; two Bombay cases holding such wakfs to be valid, and a thirdsubstantially endorsing the same view. (I do not refer to the unreported cases inthis Court nor to the case of Abdul Ganne Kasam, as it has not been accepted bythe Bombay High Court in Fatma Bibi v. The Advocate-General and in Amrutlal v.Sheik Hossein, and because what has been considered as a decision in that casewas plainly obiter). This can hardly be called a course of decisions such ashas been imagined.

102. But, says the Advocate-General, the Privy Council hasrepealed the Mahomedan law. This contention, in my opinion, is whollyunfounded. The case of Mahomed Ahsanulla Chowdhry v. Amar Chand Kundu I.L.R. 17Cal. 498 : I.L.R. 17 IndAp 28 was a somewhat peculiar one.

103. In the wakfnama executed by the father of the appellantMahomed Ahsanulla Chowdhry, the property was made wakf in the following terms:

I hereby appropriate and dedicate as fisabilillali wakf, inthe manner provided in the paragraph mentioned below, the properties now inquestion and other property there described, fordefraying the expenses of thebrick-built musjid of my grandfather Jorip Mahomed Chowdhry, at my own familydwelling-house in the village of Paragulpore, and of the two madrassas at myown ancestral homestead, and my lodging house in the town of Chittagong, andsadir warid (persons coming and going), and I pray to God that He may in Hismercy accept and preserve the same for ever being applied to those purposes.

104. It will be seen that this is a direct dedication to thepurposes named. It was open to the endower under the Mahomedan law to haveadopted two courses, both regarded as legal and valid, viz., either to create awakf directly constituting his descendants the immediate recipients of thebenefaction and on their extinction making the general poor the recipientsthereof, or to endow the properties in favour of some general pious object, reservingthe usufruct for himself and his descendants so long as they existed. Insteadof adopting either of these courses, the endower in this particular case chosea devious method. In the paragraph laying down the rules for the administrationit was provided that the purposes for which the dedication was made should beperformed according to custom. There is no indication, however, of what thecustomary expenses were. There was no provision that, on the extinction of thefamily, it would be applied for the purposes stated in the preamble or to anyother purpose. Had the wakf been in general terms, Abu Yusufs rule would havebeen applicable, and on the failure of the family the entire income would havebeen applicable to it. But as the expenses for these purposes had been alreadyfixed, if a stranger ever became mutwalli on the extinction of the family, hewould not be bound to spend more. Their Lordships accordingly say:

There is not a word said about increasing the amount spenton charitable uses beyond the expenditure which was according to custom. TheirLordships cannot find that the deed imposes any obligation on the grantorsmale issue, or on any other person into whose hands the property may come, toapply it to charitable uses, except to the extent to which he had himself beenaccustomed to perform them.

105. I venture to think that this sentence contains the pithof the judgment in that case. Their Lordships carefully abstained from layingdown any general rule. They say in express terms:

Their Lordships do not attempt in this case to lay down anyprecise definition of what will constitute a valid wakf, or to determine howfar provisions for the grantors family may be engrafted on such a settlementwithout destroying its character as a charitable gift. They are not called uponby the facts of this case to decide whether a gift of property to charitableuses which is only to take effect after the failure of all the grantorsdescendants is an illusory gift, a point on which there have been conflictingdecisions in India.

106. This sentence shows clearly that they did notcountenance the views expressed by the Calcutta High Court in the two decisionsto which I have referred. On the contrary, what follows is, to a large extent,destructive of the ratio decidendi in Mahomed Hamidulla Khan v. Lotful HuqI.L.R. 6 Cal. 744 : 8 C.L.R. 164. In Mahomed Ahsanulla Chowdhry v. Amar ChandKundu I.L.R. 17 Cal. 498 : I.L.R. 17 IndAp 28 the wakf having been directly infavour of certain religious purposes named, the provision about the maintenanceof the family could come in only under the rules given in the Fatawa Alamgiri,Volume II, page 495 (Baillies Digest, 2nd edition, page 596), which Kemp, J.,evidently had in view in the case of Muzhurool Huq v. Puhraj Ditarey Mohapattur13 W.R. 235. Their Lordships accordingly say:

On the one hand their Lordships think there is good groundfor holding that provisions for the family out of the grantors property may beconsistent with the gift of it as wakf. On this point they agree with, andadopt the views of, the Calcutta High Court stated by Mr. Justice Kemp in oneof the cases--Mughurool Huq v. Puhraj Ditarey Mohapattur 13 W.R. 235. Afterstating the conclusion of the Court, that the primary objects for which thelands were endowed were to support a mosque and to defray the expenses ofworship and charities connected therewith, and that the benefits given to thegrantors family came after those primary objects, that learned Judge says: Weare of opinion that the mere charge upon the profits of the estate of certainitems which must in the course of time necessarily cease, being confined to onefamily, and which after they lapse will leave the whole property intact for theoriginal purposes for which the endowment was made, does not render theendowment invalid under the Mahomedan law.

On the other hand they have not been referred to, nor canthey find, any authority showing that according to Mahomedan law a gift is goodas a wakf, unless there is a substantial dedication of the property tocharitable uses at some period of time or other.

107. To my mind there is nothing in the above remarks tojustify the inference that their Lordships intended to repeal the Mahomedanlaw. In the last two lines of the above-quoted passage they gave expression, asit seems to me, to what the Mahomedan law lays down, viz., that every wakf infavour of objects liable to failure (jihat-i-munkataa), such as a mans family,"must at some period of time or other" enure to the benefit of thepoor, unless some other continuing object is named. But learned Counselcontended that in using the words "at some period of time or other,"the Privy Council meant "some fixed or certain or determinate period oftime." I cannot concur in this view, for in the first place it isimpossible to say when the descendants would die off and in the next place awakf cannot be made to take effect at a future period however fixed. Forexample, if a man were to say this property would be dedicated for the poortwenty years hence, in the meantime so-and-so should have the usufruct of it,such a dedication is, under the Mussulman law, invalid, as it is suspensiveupon a time when the property may not be in the endower at all. He may havedied in the meantime, and the property may have passed from him to his heirs.This in different from a testamentary wakf, because, a man has a disposingpower over his property until his death. I do not think, therefore, that theirLordships intended to convey what Mr. Woodroffe contends for. As I said before,to my mind they expressed in their own words what the Mussulman law lays down.

108. Mr. Arathoons argument, to which the Privy Councilrefer in their judgment, was somewhat unfortunate. A family settlement does notimport a charitable gift to the poor, but a wakf constituting a family or anyspecified object or class (jihat-i-muyyin), as the recipients of thebenefaction, according to the recognized and accepted Hanafi doctrine, importsthe ultimate gift to the poor "though they be not named," "forwakf like sadakah implies that."

109. But the other argument of learned Counsel, viz., that awakf in which the endowers children are the recipients of the benefactionwould change the rules of succession among Mahomedans, deserves some attention,as it is evidently founded on an erroneous apprehension of the Mussulman law. AMussulman has an absolute disposing power during his lifetime over all hisproperties, ancestral or self-acquired. He can make a gift of the whole of itto any person, heir or non-heir, or give wholly or partially the usufruct bywakf to any one he chooses [see the Fath-ul-Kudir, the Alamgin, and theTahtawi, Volume II, page 528]. In the one case, the donee takes the substance,in other words, the property absolutely; in the other case, he takes theinterest in the usufruct, the corpus remaining absolutely tied up in thecustody of the Almighty for the benefit of other beneficiaries. In the one casethe property is transferred to the donee; in the other, to God from whom thegrantor had received it; in either case the right of the donor becomesextinguished for ever. A wakf, however, being religious in its nature standsupon a different footing from a transfer to an individual.

110. I prefer not to make any observation on the case ofRasamaya Dhur Chowdhuri v. Abul Fata Mahomed Ishak I.L.R. 18 Cal. 399 [LQ/CalHC/1891/14] , as Iunderstand it is an appeal to Her Majesty in Council.

111. Before dealing with the case under reference, it seemsto me necessary to clear away certain impressions regarding the respectiveopinions of Abu Hanifa, Abu Yusuf, and Mohamed, which have formed the subjectof elaborate arguments at the Bar. There is absolutely no difference betweenthem as to the obligatoriness of a wakf or as to the validity of a wakf in favourof ones own or anybody elses family or descendants. The only dispute amongthem is (a) as to when and how it becomes binding and obligatory. Abu Hanifathought a wakf to be revocable so long as the endower had not obtained theimprimatur of the Kazi or "death came upon him," when it would becomeirrevocable. Abu Yusuf and Mohamed held that it was irrevocable, binding andobligatory (lazim) from the moment the consecration was made; but they differedas to how and when it should become operative. Abu Yusuf ruled that the wakfbecame binding upon the mere declaration of the dedication. Mohamed thoughtthat it was not irrevocable until the property had been consigned to amut-walli. With reference to these different views, Tahtawi says, "no onehas accepted the opinion of the Imam (Abu Hanifa), some few have followedMohamed, but the universality of lawyers have adopted Abu Yusufs rule. TheManah, the Fath-ul-Kadir, etc., all say the Fatwa is with Abu Yusuf. TheAlamgiri says that "the lawyers of Balkh follow Abu Yusuf, and we.(meaning the Indian Judges) decree accordingly." 1 have given here theepitome of the dicta contained in the law-books, without burdening my judgmentwith quotations.

112. There are three other points upon which Abu Yusuf andMohamed differ to which attention must be called. Mohamed says (b) the propertydedicated if partible, should be divided off, i.e., that it must not be mushaa;(c) that the endower should reserve no interest in the usufruct: on this point,the principal point of difference between the Shiahs and the Hanafis, who formthe bulk of the Indian Mahomedans, he agrees with the Shiahs; and (d) that theultimate unfailing object must be expressly designated. On all these points AbuYusuf differs from Mohamed. With reference to (d) Abu Yusuf ruled that the wordwakf implied perpetuity and the inclusion of the poor, and that when a wakf iscreated in favour of an object or class of objects liable to failure, on its ortheir execution, the wakf would be for the poor, "even though they be notnamed." A reference to any standard work would place the matter beyond theshadow of a doubt.

113. As regards the other matters, Abu Yusuf ruled that"the wakf of Mushaa" was valid, and that the endower could lawfullyreserve for himself the usufruct or indeed "make a wakf on himself,"and all the Mahomedan lawyers and Judges "have followed Abu Yusuf."In India "the fatwa," says the Alamgiri, "is with AbuYusuf." And the British Indian Courts themselves have accepted andfollowed, under the guidance of their Law Officers, the rule of Abu Yusuf in(a), (b) and (c).

114. In the case of Deo d. Jaun Beebee v. Abdollah BarberFulton, 345, the Calcutta Supreme Court held that the wakif may lawfullyreserve the usufruct for himself, and that consignment was not necessary to thevalidity of a wakf. In the case of Hyatee Khanum v. Koolsoom Khartum 1 Sel.Rep. 214 (O) 285 (N); the Sudder Court held that the wakf of Mushaa or anundivided share in a certain property was valid. It seems to me the IndianCourts are bound to conform to the rule of Abu Yusuf with reference to (d)also, in accordance with the express practice and authority of Mussulman Judgesand lawyers for ages.

115. But even that question does not arise in the case underreference, for here the poor are expressly designated as the ultimaterecipients of the wakf created by Bikani.

116. The First Court has held, as I have already stated,that this wakf was not executed with any intention to defraud creditors, thatthe man was old and infirm, and was going away on a pilgrimage from which hehad little hope of returning alive, and that he intended to make a provisionfor his family with a remote reservation for the poor. Here lies, in theSubordinate Judges opinion, the gravamen of the charge. In the latter part ofhis judgment he makes the following observation:

I doubt that Bikani ever seriously thought of the totalextinction of his descendants and of a probable contingency of a reversion tothe poor. Bikani returned home from Mecca within a few months after theexecution of the wakf deed. Hardly anything was done during that period to giveeffect to the deed. On his return he did not even get his name registered asmutwalli, but all along continued to recover the profits of the properties inhis personal capacity, ignoring the wakf altogether, and even confessed beforesome respectable pleaders that he had no mind to give any effect to the deed.

117. If Bikani created a valid wakf, his subsequentintention or conduct has nothing to do with the question. But as a good deal ofdiscussion has taken place on the subject of sham dedications and nominal orpretended wakfs, I feel bound to state in precise terms what appears to me tobe the Mahomedan law, especially as the Transfer of Property Act leavesuntouched the Mussulman law relating to dispositions of property. The Mussulmanlaw supplies ample safeguards against fraud. It declares that if a propertywhich is already mortgaged to another is made wakf, it must be redeemed withthe other assets of the mortgagor (if he dies without having released it). Ifit cannot be so done, the wakf must be set aside. The Mussulman law providesthat if a man immersed in debt, in other words, a person in insolventcircumstances, makes a wakf, in order to delay his creditors and has no othermeans to pay his debts with, the wakf will not be recognised. But when aperson, who is not in insolvent circumstances, or against whom no fiat ofinhibition has issued from the Kazi, makes a wakf, his disposition is immediatelyoperative and his right in the property drops for ever, Radd-ul-Muhtar, VolumeIII, page 610, Fath-ul-Kadir, Volume II, page 640; Surat-ul-Fatawa, etc.Thenceforth he is an absolute stranger to it. The property is not his any more.As I understand the expression "nominal" or "pretended" inconnection with a transfer, it means this, that whilst the transferor purportsto transfer his property, in reality he does not. If the property ostensiblychanges hands, it is held by the transferee subject to a secret trust in favourof the original proprietor. But this is not applicable to a wakf if theMahomedan law is to be applied. The moment a wakf is made, the right of theowner in the subject of the consecration drops absolutely; it is transferred tothe Almighty and the wakif has no power of revocation. If he makes a wakf,knowing the effect of his acts, he cannot say afterwards that he did not intendmaking a wakf, or that he had some other secret design in view and neverintended to part with his property. No hidden or secret reservation is allowed.If at the time of the consecration he expressly says : I make a wakf oncondition that it shall remain my property, or I shall deal with it as I like,or I may sell it when I like and apply the proceeds to my use," the lawregards it as void. But in any other case, if the wakif himself is the mutwalliand misdeals with the property or acts contrary to the provisions of the wakf,the Kazi is empowered to remove him on the complaint of any of the beneficiaries,even though he may have made a condition that he shall not be removed.

118. It must be remembered that in Mahomedan law andMahomedan law-books there is no distinction between a wakf for a mans familyand a wakf for any other purpose. They all stand on the same footing. Themutwalli (whether the wakif himself or anybody else) has no interest in thewakf beyond that which is expressly provided for at the time of dedication. Hehas no power of sale, mortgage or lease (without the sanction of the Judge), andis; just in the same position as the manager of a minors property. Nor havethe recipients of the benefaction any interest beyond what is expressly givenin the wakfnama. They have no beneficial interest of any kind in the corpus,nor in the income beyond what is provided in the deed. I fail, therefore, tosee how the conduct or acts of a manager (be he the wakif himself) can affectthe wakf. If the question were whether a wakf deed was executed at the time itpurports to be, or whether a wakf was created at the time alleged, no doubt theconduct of the wakif subsequent to such alleged dedication would be material,but that is not the case here, In the present case it has been found by thelower Court that the man executed the deed and duly registered it. He went awaywith little or no hope of returning, leaving the management in the hands of hissons. He had done apparently all that he could to complete the transfer at thetime. His subsequent conduct cannot, under the Mahomedan law, be allowed toaffect the wakf.

119. The wakfnama in the present case contains threedistinct provisions; it provides (1) for certain allowances in favour of theendowers children and wife; (2) it provides for the disbursement of Rs. 50 inthe way of God, and of a further like sum in charity to the poor; and (3) itprovides that the balance of the income should form part of the wakf fund aridbe expended in good acts for the benefit of his soul. The Judge in the Courtbelow has found that so far as the second provision is concerned, the deed ofwakf has been carried into effect; not only has Rs. 50 been spent on charity,but a student has been maintained "if not from the outset, at least for aconsiderable time." The maintenance of the student apart from the almsgivingCo the poor shows that the Judge is not right in thinking that the Rs. 50mentioned in paragraph 3 is the same sum as mentioned in paragraph 1. The veryobjects are different, one is in "the way of God," which means"the support of religion," the other for alms to the poor. Themembers of the family cannot get more than what has specifically been reservedfor them; out of the balance, in any case not less than half the income, aportion is given to purposes which would be denominated charitable in theEnglish sense, the remainder is to be spent in pious acts for the good of thesoul of the endower, who according to the Subordinate Judge, went to Mecca withno hope of returning alive.

120. But it is said the preamble shows that he had no piousmotive, for the first object he mentions is the perpetuation of his name. Thisargument proceeds upon a misapprehension of the inner life of the people whoselaw we have to administer. Among the Mussulmans, it is the general practice toinvoke the names of their deceased ancestors at certain religious festivals,especially the Shab-e-barat, commonly called the Shubrat, to spread flowers andlight candles or chiraghs over the grave of the deceased, to have the Koranrecited, particularly if the family is possessed of means, on the spot where hedied. Herklot in his Qanoon-i-Islam describes the ceremonies performed at thetime of Shubrat or Shab-e-barat. In the month of Ramazan, on one of the nightsbelieved to be the "night of excellence" mentioned in the Koran,"when the angels and the spirit descend to the earth at the command oftheir Lord," it is usual to offer fatihas, for the dead; also in Rajjab,the month of "the Ascension." If the deceased was a saintlyindividual, besides the usual fatihas, Urs is performed on the anniversary ofhis death. In the wakfnama in the case of Shah Amir Alum, these were theceremonies provided for. Nothing is more bitter or agonising to a Mussulmanthan the idea of having nobody left to offer up fatihas prayers, niaz, etc.,for him after death. His name is "perpetuated" in these pious actsand in the alms which are distributed on these occasions. This is what aMussulman understands by the words "for the perpetuation of my name,""for keeping my name alive," etc.

121. This wakfnama is totally different from the wakfnama inthe case Mahomed Ahsanulla Chowdhry v. Amar Chand Kundu I.L.R. 17 Cal. 498 :I.L.R. 17 IndAp 28. To hold that a wakf, the benefaction of which is bestowedwholly or in part on the wakifs family and his descendants is invalid, wouldhave the effect, in my opinion, of sweeping away an important branch of theMussulman Law, with which are associated and intermixed the dearest religiousinterests of the people.

122. For all the reasons I have given above, I am of opinionthat the wakfnama in question created a valid endowment, and that these appealsshould be allowed and the suits dismissed with costs in all the Courts.

123. There seems to be another difficulty in the plaintiffssuits. It is not quite clear whether all the persons interested in the wakfhave been made parties; certainly the Talib-ul-ilm is not a party. 1 aminclined to think these suits fall within the purview of the ruling of theirLordships in Bishen Chand Basawut v. Nadir Hossain I.L.R. 15 IndAp 1 : I.L.R.15 Cal. 329, and ought to be dismissed on that ground also.

S.C. Ghose, J.

124. The plaintiffs in these cases are creditors of one HajiBikani Mia. In execution of the decrees obtained by them against Bikani, theyattached certain properties as belonging to him, but this was opposed by Bikaniupon the ground that he had on the 4th Aughran 1281 (1874) dedicated theproperties as wakf, and that he had since been holding them as mutwalli. Thisopposition succeeded, whereupon the creditors brought the suits from which theappeals before us have arisen, upon the ground that the deed of wakf propoundedby Bikani was a nominal transaction, that he was holding the properties asowner, and that therefore the properties were liable to be sold forsatisfaction of their decrees. The suits were defended by Bikani, upon theground that the said deed did constitute the properties as valid wakf accordingto the Mahomedan Law, and that it was a bond fide transaction.

125. Both the Courts below decreed the suits. TheSubordinate Judge distinctly found that Bikani had no pious object in view,that the wakf was but a device to perpetuate the property in his family, andthat, notwithstanding the deed, Bikani held the property, not as mutwalli butas owner, and that the endowment was but nominal. The District Judge in appealconsidered the case not exactly in the same way as the Subordinate Judge did.He treated the questions raised as mixed questions of law and fact, but in theresult came to the same conclusion as the Subordinate Judge. He held that therewas no intention of a conveyance to pious uses at all; that the trust was incomplete abeyance from 1281 (1874) to 1293 (1886), when the deed was producedfor the first time to save the property from creditors; that Bikani never professedto act as a mutwalli; that there was no substantial dedication to charitableuses at some time or other; that to all intents and purposes the deed waspractically a deed of family endowment, and that the pious acts done by Bikani,as indicating a compliance with the objects stated in the deed, were such aswould be commonly performed by all pious and well-to-do Mahomedans. The Judgehowever held, with reference to the provision made in the deed for piouspurposes, that the properties were subject to a charge of Rs. 75 a year, andthat they should be sold subject to such charge. I should here mention that indealing with the question of law on the subject, the Judge relied upon andguided himself by the decision of the Judicial Committee in the case of MahomedAhsanulla Chowdhry v. Amarchand Kundu I.L.R. 17 Cal. 498 : I.L.R. 17 IndAp 28and a, decision of this Court (Tottenham and Trevelyan, JJ.) in the case ofRasumaya Dhur Chowdhuri v. Abut Fata Mahomed Ishak I.L.R. 18 Cal. 399 [LQ/CalHC/1891/14] .

126. On appeal to this Court, a Divisional Bench (Petheram,C.J., and HILL, J.) being of opinion that there was a conflict between twodecisions of this Court, one by Mr. Justice Tottenham and Mr. JusticeTrevelyan, in the case of Rasamaya Dhur Chowdhuri v. Abul Fata Mahomed IshakI.L.R. 18 Cal. 396 already referred to, and the other by Mr. Justice OKinealyand Mr. Justice Ameer Ali, Meer Mahomed Israil Khan v. Sashti Churn GhoseI.L.R. 19 Cal. 412 [LQ/CalHC/1892/13] , as bearing upon the question of the validity of the deed ofwakf in question according to the Mahomedan Law, has referred the case to aFull Bench, with special reference to the question: "Whether thedisposition of the grantors property made by the deed of the 4th Aughran 1281,(Ante p. 118) was a valid wakf of the property dealt with by the deed."

127. The case has been argued at great length before us, andvarious questions as bearing upon the Mahomedan Law, and the conclusionsarrived at by the District Judge in appeal have been discussed by the learnedCounsel on either side.

128. I should here premise that the case before us is notbetween two Mahomedans, but between a Hindu, who is the creditor, and aMahomedan, the debtor. Section 37 ofXII of 1887 provides as follows:

Where in any suit or other proceeding it is necessary for aCivil Court to decide any question regarding succession, inheritance, marriageor caste, or any religious usage or institution, the Mahomedan Law in caseswhere the parties are Mahomedans, and the Hindu Law in cases where the partiesare Hindus, shall form the rule of decision, except in so far as such law has,by legislative enactment, been altered or abolished.

(2) In cases not provided for by Sub-section (1) or by anyother law for the time being in force, the Court shall act according tojustice, equity and good conscience.

129. This case is governed by the 2nd clause of the section,and the Court has here to act according to justice, equity, and goodconscience."

130. Cases often occur in our Courts where the parties to asuit are of different persuasions, and one of them relies upon the particularlaw which governs him as the inception of his title, and the Court has toconsider that law. Take, for example, a case like this : a Hindu creditorattaches certain property for satisfaction of his decree obtained against aMahomedan; a Mahomedan female thereupon claims the property as being in herpossession in lieu of dower, she being his wife. If the creditor questions herstatus as a wife, the Court has to determine the question whether the partieswere married according to the Mahomedan Law. So in the case where a propertyseized in execution is claimed by a Mahomedan as under a gift from the debtor,a Mahomedan, the Court has to determine whether the gift is valid according tothe Mahomedan Law. But while the Court goes into these questions, it does so,not because the Mahomedan Law applies to the Hindu, but because "justice,equity and good conscience" require that they should be considered. Inlike manner in the case before us, we have to consider whether the propertywhich the creditor desires to sell is still the property of Bikani, and as suchis liable to be sold for his debts, or whether he has made a valid dedicationof it as wakf, and as such it is inalienable.

131. Before considering what may be the effect of thefindings arrived at in this case by the Lower Appellate Court, it will benecessary to see what may be the Mahomedin Law on the subject so far as itbears upon the particular case before us.

132. According to Abu Hanifa, the great Oracle of MahomedanJurisprudence, as Mr. Hamilton describes him to be in his preliminary discourseon the Hedaya, wakf (quoting from Hamiltons translation of the Hedaya, VolumeII, Book XV, page 33d) "signifies the appropriation of any particularthing in such a way that the appropriators right in it shall still continue,and the advantage of it go to some charitable purpose in the manner of aloan." There is a difference of opinion as to whether Hanifa consideredwakf to be valid; and we find it stated that "the most approvedauthorities however declare it to be valid according to him, but since (like aloan) it is not of an absolute nature, the appropriator is held to be atliberty to resume it, and the sale or gift of it is consequently lawful."But according to his disciples (Abu Yusuf and Abu Mahomed), Hedaya, page 335,"wakf signifies the appropriation of a particular article in such a manneras subjects it to the rules of divine property, whence the appropriators rightin it is extinguished, and it becomes a property of God by the advantage of itresulting to his creatures." " The two disciples there- fore,"so says the Hedaya, " hold appropriation to be absolute; and consequentlythat it cannot be resumed, or disposed of by gift or sale, and inheritance alsodoes not obtain with respect to it."

133. The Hedaya then gives (pages 335--337) the respectivearguments of Abu Hanifa and his two disciples; it is unnecessary to refer tothem at any length, but it may be useful to refer to one of the arguments ofthe two disciples. And it is this...." There is a necessity for theappropriation being absolute, in order that the merit of it may result for everto the appropriator; and this necessity is to be answered only by theappropriator relinquishing his right in what he appropriates, and dedicating itsolely to God, which dedication, as being agreeable to law in the same manneras that of a mosque, must therefore be made in the same mode."

134. There was, however, a difference of opinion between thetwo disciples in a most important matter in this connection; Abu Yusufasserting that "the right of property is extinguished upon the instant ofhis saying I have appropriated "(and such is also the opinion ofShafei)," because that is a dereliction of property, in the same manner asa manumission "; Mahomed, on the other hand, maintaining that "it isnot extinguished until he appoint a procurator, and deliver it over to him, anddecrees are passed upon this principle: "The reason of this, says Hedaya(page 337)," is that the right of God cannot be established in anappropriated article but by implication, in the consignment of it to hiscreature; (as a transfer to the Almighty, who is himself the proprietor of allthings, although it cannot be effected actually and expressly, yet it may be sodependently), it therefore becomes subject to the rules of divine propertydependently, and consequently resembles Zakat and alms gift."

135. The Hedaya refers to another difference of opinionbetween Hanifa and Mahomad on the one hand, and Abu Yusuf on the other, andthat is with regard to the question whether the appropriation is valid unlessthe appropriator destines the ultimate application to objects not liable tobecome extinct. (Hedaya, page 341). Abu Yusuf maintained that "where theappropriator names an object liable to termination (as if he were to say Ihave appropriated to Zeyd) it is valid, and after the death of Zeyd it passesas an appropriation to the poor, although the appropriator had not named them.The argument of Hanifa and Mahomed upon this point is that appropriationrequires an extinction of right of property, without a transfer of it, and asthis, like manumission, is of perpetual nature, it follows that if a thing beappropriated to a finite object, the appropriation is imperfect, whence it isthat an appropriation is rendered void by making it temporary in the samemanner as a sale is made void by limiting its duration." The argument ofAbu Yusuf in this connection was that "the design of the appropriator isto perform an act of piety acceptable to God, and this is fully answered ineither case; because piety on some occasions may consist in the appropriationto a terminable object, and it may at other times consist in the appropriationof a thing to an interminable object; the appropriation is valid in bothinstances."

136. The Hedaya deals with another matter, in which therealso existed a difference of opinion, and that is in regard to the questionwhether the reservation by the appropriator of the whole or part of theproperty appropriated during his own lifetime of his Amwalid (slave who hasborne her master a child) or Moddabir (slave who has been promisedemancipation) is valid. Abu Yusuf was of opinion that such reservation waslawful, while Mahomed was of a contrary opinion : he held it to be unlawful,and the Hedaya states (page 349) "such is the opinion of Hillal Kazi andShafei ". The argument in favour of Mahomeds opinion is stated to be--

That appropriation is a gratuitous act, effected in thetransfer of property to God, by delivering over the thing appropriated to amutwalli or procurator; (for a transfer to the Almighty, who is himself theproprietor of all things, although it cannot be effected actually and expressly,yet it may be so dependency); and the reserving of the whole or part of theincome arising from it to his own use is repugnant to this, because thedelivery cannot be made to himself. The case therefore resembles the reserve ofan alms gift, and also the reserve of a part of a masque : in other words, if aperson were to assign certain property to the poor, stipulating at the sametime that his right in part of it shall continue, the alms under such acondition are unlawful; or if the founder of a mosque stipulate that his rightin a part of the mosque shall continue, this opposes the legality of the wholefoundation : and so also in the case in question.

137. The arguments of Abu Yusuf on the point were asfollows:

First.--The prophet was accustomed himself to consume therevenue arising from what he had appropriated. Now the use would not at anyrate be lawful, unless the appropriator had previously stipulated it forhimself at the time of appropriation; the prophet consuming the revenue,therefore, argues that it is lawful for an appropriator to reserve that to hisown use.

Secondly.--Appropriation implies the owner of a propertydestroying his right in that property by a transfer of it to God, under somepious intention (as was formerly stated), and such being the case, where anappropriator reserves a part or the whole of the revenue arising from what heappropriates to his own use, it follows that, in so doing, he reserves tohimself a thing which is the property of God (not that he reserves to himselfwhat is his own), and a persons reserving to himself a thing which is theproperty of God is lawful; thus if a man build a caravanserai, or construct areservoir or give ground for a burial place, reserving to himself the right ofresiding in the caravanserai, or of drinking water out of the reservoir, or ofinterment in the burial place, it is lawful, and so likewise in the case inquestion.

Thirdly.--The design in appropriation is the performance ofan act of piety; and piety is consistent with the circumstance of a personreserving the revenue to his own use, as the prophet has said A man giving asubsistence to himself is giving alms.

138. With reference to the last passage just quoted, Mr.Hamilton makes the following observation:

As where (for instance) a man appropriates the whole of hisproperty, thus reducing himself to poverty; in which case the charity is aseffectual with respect to him (where he necessarily reserves a sufficiency fromthe product for his own sustenance) as with respect to any other pauper.

139. I have thought it necessary to refer at some length tothe Hedaya, which is a book of great authority among the Mahomedans, as also tothe arguments of the learned doctors on the subject, in order to see what isthe true foundation upon which a wakf, I mean valid wakf, depends; and that is,as I understand it, the dedication solely to God with a pious intention, andthe total relinquishment of the wakifs right in the property appropriated.

140. It will be observed that some of the Imams were so veryparticular about this that they held that the ultimate application of theincome of the property dedicated must be expressly to objects not liable toextinction, that the appropriator must sever all connection with the property,and that the reservation by him of the income for his own use or for the use ofhis own people during their lives is invalid.

141. Baillie in his Digest of Mahomedan Law treats thesubject very nearly in the same manner as the Hedaya does. The book is atranslation of the Fatawa Alamgiri, and that treatise in Book 9, Chap. 1, aftergiving the meaning of wakf according to Abu Hanifa, states:

According to the two disciples, wakf is the retention of athing in the implied ownership of Almighty God, in such a manner that itsprofits may revert to or be applied for the benefit of mankind, and theappropriation is obligatory, so that the thing appropriated can neither besold, nor given, nor inherited. In the Ayoon and Yutuma it is stated that theFatawa is in conformity with the opinion of the two disciples.

142. And then, in speaking of what is called the piliars ofwakf, the Fatawa-Alamgiri says (quoting from Baillie) that "the cause ormotive is a seeking for nearness;" and Baillie, with reference to thispassage, in his note at the foot of page 559 (2nd Edition), says that it isintended to refer to Almighty God. And we find it stated at page 576 in thechapter entitled of the proper objects of appropriation, that:

An appropriation for the rich alone is not lawful. Anappropriation for travellers is lawful; but it is to be applied to the pooramong them, exclusively of the rich. And if one should say to perform, the hujjevery year with the produce, or to bestow every year in charity instead of mysins of omission or to pay my debts, it would be lawful, if the ultimatedestination were a perpetuity for the poor.

143. And lower down in the same page it is said "In theBook of wakf by Hullal, it is stated that an appropriation for the paralysed isvalid, and should be applied to the poor among them, exclusively of therich."

144. In Macnaghtens Principles of Mahomedan Law, in thechapter "on endowments" at page 69, it is stated:

An endowment signifies the appropriation of property to theservice of God, when the right of the appropriator becomes divested and theprofits of the property so appropriated are devoted to the benefit of mankind.

145. The conclusions I have drawn from an examination of theHedaya are, I think, supported by the passages in Baillie and Macnaghten I havejust referred to, and are consistent with certain other passages in Baillie, asalso in Durr-ul-Mukhtar, Fatawa Kazi Khan, and Fath-ul-Kadir (hooks nottranslated or published in English), which have been brought to our notice bythe learned Counsel for the appellant. And in the translation of a portion ofthe Tahtavi which has been supplied to me by a senior translator of the HighCourt, I find it stated, with reference to a text favouring a wakf in favour ofthe rich and then in favour of the poor, that a wakf in favour of the richexclusively is invalid, because kurbat (an approach to God) is requiredinitially, and there can be no wakf unless there is benefaction. This is whatis given in the Bahr-ur-Raik from Tartusi."

146. Bearing in mind the principles I have deduced from theMahomedan Law authorities, let us see how the subject has been dealt with byour Courts from time to time, how have they understood what is a dedicationsolely to God, and what is a pious intention according to the Mahomedan law.

147. In the case of Moohummud Sadik 1 Sel. Rep. 17 (O); 23(N), decided in the year 1798, the law officers, who were consulted, gave theiropinion by stating "that wakf according to the opinions of Yusuf andMahommed (which on this point are adopted as law) implies the relinquishing theproprietary right in any article of property, such as lands, tenements and therest; and consecrating it in such manner to the service of God that it may beof benefit to men; provided always that the thing appropriated be, at the timeof appropriation, the property of the appropriator, as is specially stated inthe Bahr-ur-Baik."

148. The question which the learned Judges in that case hadto consider was indeed different from the one which is now before us, but Ithink it may be useful to refer to the opinion of the law officers which wasgiven and accepted in that case.

149. In the case of Hyatee Khanum v. Koolsoom Khanum 1 Sel.Rep. 214 (O) 285 (N), it appears that a deed of wakf purported to dedicate acertain property for the purposes of a mosque, and it provided that afterdefraying the charges of the establishment in keeping up the mosque, thesurplus of the profits should be divided between the trustee, who in that casewas the wife of the endower, and his other wives. The law officers who wereconsulted in that case treated this deed as a deed for pious uses. The precisequestion which was discussed in that case by the learned Judges was somewhatdifferent, but the wakf was upheld as regards that share of the property whichit was held the endower had a right to dedicate. It will be observed that theprimary object of the wakf in that case was religious, and it was only thesurplus left after defraying the charges of the mosque that were to be sharedby the trustee and the other widows of the endower.

150. The next case that I desire to refer to is that of Doed. Jaun Beebee v. Abdollah Barber Fulton, 345 decided in 1838. The deed of wakfin that case states in the first place that the endower grants and disposes ofthe property appropriated as a pious dedication to please God, who is aboveall, on the following conditions:

I will appropriate as much of the produce thereof as isrequired for my own use unto the said purpose, after defraying the revenue andtaxes thereof, and the remainder to here-dunble and charitable purposes, andray several relatives, that is, my grandson and granddaughter anddaughter-in-law and daughters son and daughters daughter who are nowreceiving maintenance, living together united in meals, shall continue toreceive the same in like manner, and the power of increasing or decreasing thenumber of incumbents according to the increase or decrease in the produce willremain with me, and the repairs of the mosque, and salary of the mowuzz in thekhattab, and other expenses connected therewith in the season of the RamazanMabareke and the Eed shall be defrayed from the produce, and the person, who ishereafter appointed mutwalli, will enjoy the same powers as I myself possess.(Fulton, 346.)

151. The document then provides that the endower shallcontinue mutwalli as long as he lives, and also provides for the appointment ofsucceeding mutwallis, and in the third paragraph it states "after mydecease, neither my heirs nor the mutwalli will have the smallest right to sellor give away or transfer the above-mentioned lands in any manner; whatsoeverpart thereof is expended in hereditable, charitable and benevolent purposes,shall be disbursed under my own control and direction;" and it then windsup by saying, "these few words are therefore written by way of a voucherof a pious donation to serve as a binding and decisive document when occasionrequires."

152. The first, and I may say the main question, which wasraised in that case, was as regards the construction of this document: whetherit was a will or a deed of wakf. Ryan, C.J., thought it right to refer certainquestions for the opinion of the Law officers of the Court. The first questionthat was referred was "whether, according to Mahomedan law, an endowmentto charitable uses is valid, when qualified by a reservation of the rents andprofits to the donor himself during his life." The third question was"whether the endower can lawfully constitute himself mutwalli or trustee,"and the fifth question was "whether the instrument in question was a willor deed of endowment." To the first question the Law officers answered asfollows:

There is a difference of opinion between Abu Yusuf andMahommed touching the wakf or consecration of lands with a reservation andsetting apart of any portion of the profits and produce thereof for the supportof the wakif or consecrator,

Abu Yusuf considers the act legal, and Mahommed deems itillegal. The legal opinions of most of the learned uphold the opinion of AbuYusuf which is to be found in the Chulpee or Commentary of the Shurrai Vakyah,the Fatawa Alamgiri, the Kazi Khan and the Kaffi.

153. The answer to the third question was--

It is lawful for the wakif or consecrator to become mutwallior procurator and to reserve the profits of part of the consecrated lands forhis own use and his descendants, as will be found in the Hedaya, Kazi Khan, andthe Alamgiri.

154. And the answer to the fifth question was this paper isa deed of wakf and not a will." It would appear that the Law officersreferred in support of their answers among others, to a passage in the FatawaAlamgiri which runs thus:

Whenever a wakf is made of land or other property, and theparty making the same reserves the whole of the profits thereof to himself or apart only during his own life and after that for the use of the poor, hereinAbu Yusuf has said, this wakf is right, and the learned of Bulluck (a town inTuran) have decided conformably to this opinion of Abu Yusuf, and the decisionsare in conformity therewith, for to induce persons to wakfs. The like is to befound in the Sograh and the Nesaub, and also in the Moojmuraul only.

and then referring to the Chulpee and some other books, itwas stated that--

In the opinion of Abu Yusuf it is right or lawful for theappropriator or consecrator to direct the profits to his own use and to makehimself mutwalli, but not right in the opinion of Mahommed.

155. The Chief Justice held that the deed in question was awakf and not a testamentary devise; and then upon the question whether theappropriator and the mutwalli could be one and the same person, and whether theappropriator could reserve a part of the property so appropriated to his ownuse for life, the Chief Justice in the first place referred to the conflictingopinions of Abu Yusuf and Mahommed, and then held that upon the authoritiesquoted by the Moulvis, the opinion of Abu Yusuf should be considered as thebetter law and sanctioned by the more recent authorities. The Court accordinglyheld that the wakf was good. It will be observed that there could be no doubtthat the intention of the appropriator was pious, and there were variousexpenses which were enjoined for the repairs of the mosque, the salary of themowuzz, and for the Ramzan and Eed festivals. The several members of the familywho were to be maintained were expressly mentioned, and the deed does notbestow the income of the property to the descendants generation aftergeneration, but the appropriation of a part of the income was confinedexpressly to certain individuals therein named. This could not possibly havethe effect of creating a perpetuity in favour of the family, but upon thedemise of the individuals named, the whole property would go to charitablepurposes.

156. In the case of Jewun Doss Sahoo v. Shah Kubeer-ood-deen2 Moo. I.A. 390 decided by the Judicial Committee, it would appear that thegrant was a Royal grant, and the produce was to be applied to charitablepurposes. The deed that the Judicial Committee had to consider is the same aswas the subject-matter of controversy in the case of Qadira before the SudderDewany Adalut 3 Sel. Rep. 407 (O); 543 (N), and having referred to the Hedayaand after considering the conflicting opinions of Abu Yusuf and Mahommed, andalso referring to certain Fatwas and the decision of the Sudder Dewany Adalutin the case of Kulb Ali Hoosein v. Syf Ali 2 Sel. Rep. 110 (O); 139 (N), wherethe Fatwa of the Law officers was to the effect "that the appropriation ofland or other property to pious and charitable purposes is sufficient toconstitute wakf without the express use of that term in the grant," theJudicial Committee held that the endowment being a perpetual wakf, anyalienation of the property was invalid.

157. In the case of Khodabundha Khan v. Oomutul FatimaS.D.A. (1857), 235 the testator had during his lifetime allotted two-thirds ofhis property among certain heirs, and in regard to the remaining one-third heprovided by a deed that from the proceeds the expenses of religious acts whichit was incumbent upon him to perform, and which he had omitted, as well asthose in connection with the Imambara, should be performed; and the executorwas enjoined to perform such religious acts; and then after making certainprovisions by way of pensions to certain parties, he provided that the plusshould belong to Mussumat Janee Khanum, and after her demis, to TussuduckHossain. The learned Judges held that this was an absolute devise in favour ofTussuduck Hossain subject to certain trusts and a life interest in Janee Khanumand that the deed did not create a wakf, for, as they observe, referring to thecase of Moohummud Sadik l Sel. Rep. 17 (O); 23 (N), "that the word wakfimports property to which the appropriator has relinquished his right and whichis consecrated in such a manner to the service of God that it may be of benefitto men."

158. In the case of Dalrymple v. Khoondkar Azeezul IslamS.D.A. (1858), 586 it was held that "if an endowment be wholly wakf, i.e.,if all the profits arising therefrom are devoted to religious purposes, themutwalli is not competent to grant a lease extending beyond his lifetime. Butif the office of mutwalli be hereditary and he has a beneficial interest in theendowed property, such property must be considered as heritable propertyburdened with certain trusts." And in the case of Khaja Surwar Hossein v.Khaja Syed Hossein Khan S.D.A. (1858), 1028, where a question was raisedwhether the property, the subject-matter of the suit, was wakf or not, thelearned Judges defined the words "wakf property" thus: "Propertydevoted to the deity on relinquishment of proprietary right;" and theyheld that the party from whom the plaintiff in that case claimed held the propertysubject only to certain trusts, and they referred to the case of MoohummudSadik in the first volume of the Select Reports.

159. The next case that I shall refer to is Bibee KuneezFatima v. Bibee Saheba Jan 8 W.R. 313 . There was an ayma grant by a certainMogul Emperor at a quit-rent. The learned Judges (Kemp and GLOVER, JJ.) indelivering judgment in the case made the following observations: "Now itis very clear that this is not a grant constituting a wakf. There is nodedication of properties solely to the worship of God or to any religious orcharitable purposes." And they held that the grant was to an individual inhis own right and for the purpose of furnishing the means for the subsistenceof the grantee and nothing further, although the consideration for the grant wasthe charitable disposition of the grantee and the expenses which he apparentlyvoluntarily incurred in supporting poor students, and food and shelter totravellers.

160. In the case of Khajah Hossein Ali v. Shahzadee HazardBegum 12 W.R. 344 S.C. 498 : 4 B.L.R.A.C. 86 where the deed of wakf providedfor the performance of certain ceremonies at the great Mahomedan festivals forthe relief of the poor and the travellers, and where after payment of theexpenses to be incurred for these purposes, and of the Government revenue, theresidue was to be expended in the maintenance of certain specified relatives,it was held that it was a good wakf; and Mr. Justice Kemp, after referring tothe conditions in the deed, observed as follows:

It will be seen that the poor are provided for, which is theprimary object of every wakf. Settlements in favour of relations who arespecifically named are made. Such an endowment is in every respect a lawful oneunder the Mahomedan law.

161. In the case of Muzhur-ool-Huq v. Puhraj DitareyMohapattur 13 W.R. 235 decided by Kemp and JACKSON, JJ., where the endowmentwas made for the purpose of supporting a mosque, feeding travellers, educatingpoor students, and so forth, and where it was provided that from the remainingprofits, the expenses for marriages, burials, and circumcisions of the membersof the family of the mutwalli were to be provided, the wakf was held to bevalid, and Kemp,,)., in delivering the judgment of the Court, observed asfollows:

We are of opinion that the mere charge upon the profits ofthe estate of certain items which meet in the course of time necessarily cease,being confined to one family and for particular purposes, and which after theylapse will leave the whole profits intact for the original purposes for whichthe endowment was made, does not render the endowment invalid under theMahomedm law. A person may make an endowment settling lands on himself andenjoying the profits during his lifetime, and after his lifetime devoting theprofits to the support of the poor, the main object of the Mahomedan law beingthat the profits of the land endowed should be endowed for a purpose whichalways remains in existence. Now the poor are always with us, and therefore aman making an endowment and enjoying the profits during his lifetime to go tothe poor after his death, does not make the endowment for an uncertain ornon-existent object.

162. It will be observed that in the deed in question,provision was made for the expenses of marriages, burials, and circumcisions ofthe members of the family of the mutwalli. This I take it was a provisionconfined to a certain number of individuals and the charges in respect of which"must," as stated by Kemp, J., "in the course of timenecessarily cease, leaving the whole of the profits intact for the originalpurposes for which the endowment was made "; and the learned Judgeexpressly remarked that the main object of the Mahomedan law is that theprofits of the land should be endowed for a purpose which always remains existent.This is a decision upon which, as will be seen hereafter, the JudicialCommittee, in the recent case of Mahomed Ahsanulla Chowdhry v. Amarchand KunduI.L.R. 17 Cal. 498 : I.L.R. 17 IndAp 28, expressly relies.

163. In the case of Doyal Chand Mullick v. Syud Keramut Ali16 W.R. 116, where the endowment was created for keeping up a mosque and forcertain charitable purposes, and the deed provided that the appropriators sonand son-in-law should appropriate his goods and chattels to the performance of thereligious and charitable purposes mentioned, and to the maintenance of hiswidow and two female slaves, and that they should share the balance betweenthemselves, it was held to be a valid wakf; and Glover, J., in deliveringjudgment, says among other matters:

There might possibly be some question as to whether all thearrangements made by the testator in the wasiutnama come under the denominationof wakf, using the word in its strictest sense as something appropriated toworks of religion.

164. And further on he says, referring to Baillies Digestupon the matter, and to the fact that a mosque was to be erected and so forth,that "that would be a proper object of Mahomedan faith, and therefore aproper object of wakf, for it would be a seeking for nearness."

165. In the case of Abdul Ganne Kasam v. Hussen MiyaBahimtula 10 Bom. H.C. 7, Melvill, J., in delivering judgment, after referringto the authorities on the subject, observes as follows:

We think that the balance of authority is strongly in favourof the conclusion that to constitute a valid wakf there must be a dedication ofthe property solely to the worship of God or to religious or charitablepurposes.

166. And later on he says:

We think that it is necessary in order to constitute a wakfthat the endowment should be to religious and charitable uses; and that it isnot sufficient that the mere term wakf should be used in the grant. To holdotherwise would be to enable every person by a mere verbal fiction to create aperpetuity of any description.

167. There the deed of wakf provided that during thelifetime of the appropriators, they should live on the property with theirfamilies and children, and that they should not be allowed to sell theproperty, and that when any of the appropriators should die, his wife andchildren should remain in the house, and so on. This deed was held to beinvalid.

168. In the case of Fatma Bibi v. The Advocate-General ofBombay I.L.R. 6 Bom. 42, where a certain Mahomedan young lady conveyed propertyto trustees upon trust, upon the condition that during her lifetime thetrustees should pay the rents and profits to her for her sole and separate use,and after her death to her children, grandchildren and other descendants forever; that the rents and profits only were to be distributed and the corpus wasto be kept intact; and that on failure of descendants, the rents and profitsshould be expended in charitable purposes, such as expenses of poor pilgrimsand so forth, it was held by West, J., to constitute a good wakf and as suchirrevocable. This case, no doubt, is in favour of the contention of theappellant. On turning, however, in this connection to the decision of theJudicial Committee in the case of Mahomed Ahsanulla Chowdhry v. Amarchand KunduI.L.R. 17 Cal. 498 : I.L.R. 17 IndAp 28, it would be seen that their Lordshipsregarded some of the observations by West, J., in the case of Fatma Bibi asextra-judicial.

169. The next case that I should like to refer to is that ofMahomed Hamidulla Khan v. Latful Huq I.L.R. 6 Cal. 744 : 8 C.L.R. 164. The deedin this case was to the effect that the appropriator had made a wakf of acertain property in favour of her daughter and her descendants, and also herdescendants descendants how low soever, and when they no longer exist, then infavour of the poor and needy. This settlement was held not to create a validwakf, and the learned Judges held that to constitute a wakf there must be adedication of the property solely to the worship of God or to religious andcharitable purposes.

170. In the case of Luchmiput Singh v. Amir Alum I.L.R. 9Cal. 176, the deed of wakf contained a provision that certain debts should inthe first place be paid, and in the second place, the property should beapplied towards the religious uses created and the maintenance of the settlorsgrandsons and their male issues. It was held that the wakf was not valid, andthat if the object of the endowment was to make" a provision for thefamily, it would be invalid.

171. In the case of Amrutlal Kalidas v. Shaik Hossein I.L.R.11 Bom. 492, where the wakf was in favour of the appropriators heirs anddescendants, generation after generation, and where it was provided that themutwalli, after defraying the expenses of repairs and taxes, etc., was to dividethe balance among the sons and their descendants and certain other individuals,with the further provisions that if any amongst his heirs and their descendantsshould die, his share of the profits should be distributed among the otherheirs, and that in the event of his heirs and descendants failing altogether,the income was to be distributed and given to fakirs and indigent people,FARRAN, J., after referring to the previous cases upon the point in page 499,made the following observations:

The conclusion which is properly deducible from the abovecited cases is, 1 think, that where the primary and general object of theendowment is for the furtherance of religious or charitable purposes or for theworship of God, such endowment is valid, although the wakfnama may also providefor the support of the family and descendants of the founder; but that wherethe wakfnama has for its real object nothing connected with the worship of Godor religious observances, and provides only in a very remote contingency forthe poor, such remote provision does not validate a perpetuity for the benefitof the dedicators children and their descendants so long as any such exist.That conclusion, if applied to the wakfnama with which I have to deal, would nodoubt invalidate it.

172. The learned Judge then referred to the view expressedby WEST, J., in Fatma Bibi v. The Advocate-General of Bombay I.L.R. 6 Bom. 42,and to the authorities relied upon by him, and upon those authorities he heldthat the wakf in question was valid.

173. In the case of Nizamudin Golam v. Abdul Gafur I.L.R. 13Bom. 264, a Mahomedan settled his property in wakf on his own descendants inperpetuity without making an express provision for its ultimate devolution toany charitable or religious object. It was held that the deed did notconstitute a valid wakf adopting the view expounded by Hanifa and Mahommed.

174. In the case of Pathukutti v. Avathalakutti I.L.R. 13Mad. 66, which came on before three Judges, MUTTUSAMI Ayyar, Parker, andShepherd, JJ., and where the deed conveyed the property to the appropriatorshusband on trust upon condition that he should maintain the settlor and herchildren out of her income, and hand over the property to her children on theirattaining majority, and in the event of the settlors death without leavingchildren, with the income of the property to have kathom recited in a mosque,give food to the mollahs, and where the settlor reserved to herself an optionof dealing with the property as a special fund for the maintenance of herchildren, if any, it was held that this did not create a valid wakf. Ayyar, J.,observes-

The criterion is whether from the contents of the documentit could reasonably be inferred that a wakf or an endowment for religious andcharitable use was intended. It should also be borne in mind that the creationof a perpetuity, except for and in connection with the ultimate destination ofproperty to such use, would be open to objection.

175. And later on he says--

It seems to me that unless the ultimate application of theproperty to religious or charitable use can be predicated with certainty fromthe deed of settlement, it cannot be laid that one essential ingredient,namely, application to charity, is not wanting and that a valid wakf is created.

176. In the case of Mahomed Ahsanulla Chowdhry v. AmarchandKundu I.L.R. 17 Cal. 498 : I.L.R. 17 IndAp 28, which came before the JudicialCommittee, the deed purported to dedicate certain properties for defraying theexpenses of a brick-built musjid and two madrassas and a lodging-housebelonging to the appropriator, and it provided that the grantors three sonsshould be appointed mutwalli in gradation of rank; that the mutwalli, afterdefraying the expenses of the mosaref and the necessary collections of thezamindari, should take from the residue his monthly allowance, pay over theallowance due to the naib-mutwalli, naib-ul-mamab and his daughters asspecified in the schedule, and continue to perform the stated religious worksaccording to custom, and keep his eye to the legitimate objects of the mosaref;that the surplus that might be left after meeting the above-mentioned expensesshould be added to the wakf estate; that the persons getting monthly allowancesshould have no power to assign or charge them in any manner; and that themutwalli should have the power to increase or decrease the allowances of themembers of the family as well as their own salaries. The Judicial Committeeobserved as follows:

Their Lordships do not attempt in this case to lay down anyprecise definition of what will constitute a wakf, or to determine how farprovisions for the grantors family may be engrafted on such a settlementwithout destroying its character as a charitable gift. They are not called uponby the facts of this case to decide whether a gift of property to charitableuses which is only to take effect after the failure of the grantorsdescendants, is an illusory gift, a point on which there have been conflictingdecisions in India. On the one hand their Lordships think there is good groundfor holding that provisions for the family out of the grantors property may beconsistent with the gift of it as wakf. On this point they agree with and adoptthe views of the Calcutta High Court stated by Mr. Justice Kemp in one of thecited cases. Muzhurool Huq v. Puhraj Diptarey Mohapattur 13 W.R. 235.

177. And then their Lordships referred to the followingportion of that learned Judges judgment:

We are of opinion that the mere charge upon the profits ofthe estate of certain items, which must in the course of time necessarilycease, being confined to one family, and which after they lapse will leave thewhole property intact for the original purposes for which the endowment wasmade, does not render the endowment invalid under the Mahomedan law.

178. Their Lordships further observed--

On the other hand they have not been referred to, nor canthey find, any authority showing, according to Mahomedan law, a gift is good asa wakf unless there is a substantial dedication of the property to charitableuses at some period of time or other.

179. And they proceeded to add--

Their Lordships therefore look to see whether the propertyin question is in substance given to charitable uses.

180. Then, with reference to the particular deed beforethem, they observed as follows:

There is a great deal in the deed which is designed foraggrandisement of the family property and for keeping it perpetually in thehands of the family. The provisions for accumulation in paragraph 4, the attemptto save salaries from alienation and from creditors in paragraph 5, theprovisions for appointment of male issue as mutwallis in paragraph 3, coupledwith the allowances to other mala issue and to wives and daughters of suchissues in paragraphs 7 and 8, all indefinite in point of duration, and, astheir Lordships think, intended to be commensurate with the existence of thefamily; the direction in paragraph 7 that new mutwallis should bring all theprivate acquisitions into a settlement,--all these things point to the sameend, the mere use of property available for the family.

181. And later on they say:

If indeed it was shown that the customary uses were of suchmagnitude as to exhaust the income or to absorb the bulk of it, such acircumstance would have its weight in ascertaining the intention of thegrantor. But the Court in the execution proceedings considered that thecharitable outlays which he contemplated were of small amount compared with theproperty. The Subordinate Judge in this suit does not deal with the matter. TheHigh Court says that the plaintiff has carefully withheld evidence as to value,and believes it was much more than he represented. For all that appears thereis no reason to suppose that the charitable use would absorb more than a devoutand wealthy gentleman might find it becoming to spend in that way.

182. The conclusion at which their Lordships arrived wasthat the deed in question did not constitute a valid wakf.

183. This decision by the Privy Council was followed in thecase of Rasamaya Dhur Chowdhry v. Abul Fata Mahomed Ishak I.L.R. 18 Cal. 399 [LQ/CalHC/1891/14] byMr. Justice Tottenham and Mr. Justice Trevelyan, and that is one of the twocases referred to in the referring order. The language and the contents of thedeed, which the learned Judges had to consider in that case, were to someextent similar to the terms of the deed now before us; and the Court afterreviewing all the previous cases on the subject held that the deed did notconstitute a valid wakf.

184. There are two other cases recently decided in thisCourt, one, Piran v. Abdool Karim I.L.R. 19 Cal. 203 [LQ/CalHC/1891/75] , which, however, does notreally touch the question we have to consider in this case; and the other, thecase referred to in the referring order, Meer Mahomed Israil Khan v. SashtiChurn Ghose I.L.R. 19 Cal. 412 [LQ/CalHC/1892/13] . In this latter case the facts were that twoMaho-medan ladies were owners of a certain taluq. They purported to make a wakfof that property by a deed. One of the ladies subsequently died; thereupon theother became under the terms of the deed the mutwalli. She entrusted themanagement at first to her husband, and after his dismissal, to the first twodefendants in the suit by an am-mukhtarnama. The property was leased outafterwards to the third defendant, who was a brother of the first twodefendants. It appears that the zemindar recovered a rent decree due on accountof the taluq against Kamrunnissa, and the decree not having been paid up, thetaluq was sold in execution of the decree at a time when Kamrunnissa was dead,and was purchased by the first three defendants in the name of the fourth.Thereupon a suit was brought by Kamrunnissas husband, it being alleged thatthe conduct of the defendants in allowing the property to be sold and inpurchasing it themselves was in breach of the fiduciary position in which theystood, and that, therefore, they were not entitled to retain it, and that thesale itself was a fraudulent one. Ameer Ali, J., differed from the DistrictJudge as to whether there existed a fiduciary relationship between theplaintiff and the defendants, and whether the fiduciary relation that hadexisted between Kamrunnissa and the defendants had come to an end upon herdeath. Upon both these points the learned Judge held for the plaintiff, and hewas of opinion that it did not lie in the mouths of the defendants to say thattheir fiduciary relationship was one of a personal character, and thattherefore, whether there was an actual fraud on the part of the defendants ornot, the plaintiff as representing the endowment was entitled to demand areconveyance just in the same way as Kamrunnissa could if she had been alive.Having thus decided the case in favour of the plaintiff, the learned Judgeproceeded to consider whether the view taken by the Judge of the Court below asto the effect of the wakf was correct or not. With great deference to thelearned Judge I should say that he was not called upon, regard being had to theconclusion that he had already arrived at, to discuss the question of Mahomedanlaw that was raised in the case, and upon which the District Judge had no doubtexpressed an opinion. But however that may be, the learned Judge did go intothe question, and after considering various treatises on Mahomedan law, he heldthat the deed of wakf was a valid one. So far as the deed which came up beforethe learned Judges in that case is concerned, I may be permitted to say thatthe conclusion at which they arrived at is unassailable, but there are variousobservations in the judgment, the propriety of which has been questioned beforeus, but which I think I am not called upon in this case to discuss.

185. I have now referred to all the cases which seemed to meto bear upon the question that has been raised in the case now before us, and Ithink I may say that all the cases, with the exception of the two cases decidedby West, J., and Farran, J., respectively, and with the exception perhaps, ofthe case in Fultons Reports, all the other cases take but one view, viz., thatthe primary object of the endowment must be either religious or charitable, andthat the intention must be a pious intention in the sense in which thatexpression is ordinarily understood, and not an intention to benefit thesettlors family only. If the primary object be either religious or charitable,I take it that the dedication is solely to God with a pious intention, and thatit has the effect of totally extinguishing the wakifs right in the propertydedicated.

186. So far as the case in Fultons Reports is concerned,there was a pious intention, and although the appropriator reserved to himselfthe power of appropriating for his own use whatever amount he might require,still the remainder was to be applied to charitable and religious purposes, asalso to the maintenance of the members of the family named therein. This wasnot, as I understand it, in perpetuity, and the whole of the proceeds would inno distant time go to charitable and religious purposes.

187. The deed of the 4th Aughran 1281 which is now beforeus, in the preamble, sets out distinctly what is the main object of theendowment. The settlor states, "I now think it advisable to lay down,according to our Mahomedan sharah, certain rules in respect of the propertiesmentioned in the schedule given below, whereby my name and memory may beperpetuated for ever, my sons and daughters and their descendants may bedecently maintained out of the income of those properties, and the propertiesmay not suffer in consequence of disputes among my sons and daughters aforesaidor their descendants." He then says that he makes a "permanent wakfof the undermentioned properties in favour of my two sons, etc., and after themthe successive descendants of my said sons and daughters, and on their death infavour of the poor, the indigent and the beggars residing in the town ofDacca." In paragraph 1 the appropriator says, "after my death whoevermay be the mutwalli shall, out of the net income or balance remaining afterpayment of the sudder revenue * * * spend Rs. 50 annually in the name of Allah(i.e., for religious purposes) and pay Rs. 100 annually to my eldest son, Rs.100 annually to my youngest son, Rs. 50 to each of my said daughters, and Rs.50 annually to my said wife." The deed then states that the balance is tobe added to the wakf fund; that after the death of his wife, the Rs. 50 payableto her is to be added to the wakf fund; and that on the death of any of thesons and daughters, the money payable to the deceased is to be divided amonghis or her children according to Mahomedan law, but that in the event of anysuch person dying with out issue, the amount payable to him or her is to becredited to the wakf estate. It then provides that none of the persons to whoman allowance is made shall be competent to transfer his or her allowance, andthat the said allowance should not be attached or sold in execution of anydecree for anybodys debt.

188. The next paragraph provides that the mutwalli for thetime being shall use his name as mutwalli on the Mofussil, Hazuri, and Courtpapers connected with wakf properties; and after meeting out of the income ofthose properties the expenses mentioned above, he shall purchase Immovableproperty with the balance that may accumulate for the benefit of the wakf.

189. The third paragraph provides that whoever will be themutwalli shall in the name of God give away Rs. 50 in charity to the poor, andthat one student must always be maintained.

190. The next paragraph provides for the appointment ofmutwallis, and says that none except some one or other among the children ofthe sons and daughters shall be mutwalli, and that no outsider shall beappointed as such; and the fifth and last paragraph winds up by saying thatafter his death the mutwallis shall be competent to spend any amount of moneythey think proper for the sake of his salvation.

191. Now, no doubt, in this deed the word wakf is used, andthere is a provision in the first paragraph to spend Rs. 50 in the name ofAllah, and in the third paragraph the mutwalli should give away Rs. 50 in thename of God in charity to the poor, and that one student should be maintained;but the question is what was the true intention of Bikani Mia when he executedthe deed of the 4th Aughran 1281. Was his intention to dedicate the propertysolely to God or to create a perpetuity in the family The Court of FirstInstance, as I have already observed, came to a distinct finding that theendowment was nominal. The learned Judge for reasons somewhat different fromthose given by the Court of First Instance has arrived at the same conclusion.He has referred to various circumstances indicating what the intention ofBikani Mia was, and one of the arguments used by him is that there was nosubstantial dedication to charitable uses. In this latter respect, I take it,he has only followed the decision of the Privy Council in the case of MahomedAhsanulla Chowdhry v. Amarchand Kundu I.L.R. 17 Cal. 498 : I. L.R. 17 IndAp 28,but whether he is right in this or not, it seems to me that the Judge has cometo a finding that the intention of the grantor was not a pious intention, andthat the document was never intended to be used, and was never acted upon, as avalid wakf. I take it that the learned Judge has come to this conclusion uponthe internal evidence afforded by the deed itself, and with reference to theacts of Bikani himself subsequent to the execution of the deed. If the questionin every case is one of intention, I think that the conclusion arrived at bythe Judge cannot be assailed. The deed was, according to the Judge, really afamily settlement with a charge upon it to the extent of Rs. 75 a year forcharitable purposes, and that charge the Judge has upheld. I desire here topoint out that many of the observations made by the Judicial Committee in thecase of Ahsanulla will fit in this case; and I fail to see how, if the PrivyCouncil were right in that case (and it must be taken that they were right), wecan hold that the deed before us created a valid wakf.

192. It was strongly contended before us by the learnedCounsel for the appellant that a settlement of property by way of makingprovision for ones support and for the support of his descendants, how lowsoever, is itself a pious and charitable act according to the Mahomedan law,and therefore the deed in question cannot be set aside upon the ground thatthere was no pious object in view, there being a contingent reversion to thepoor; and certain passages from some of the Mahomed in Law Treatises,especially Book IX, Chapter III, Sections 2 and 3 of Baillies Digest, werequoted before us in support of that position.

193. These passages might possibly support this view, butthat is not the view which has been accepted in our Courts, at any rate in thisside of India ever since the year 1798 down to the present time. In two orthree cases only, no doubt, the wakf was affirmed when there was provision madefor the support of the settlor and the members of his family; but, as I havealready observed, in those cases the persons to be maintained out of theproduce of the property were distinctly mentioned, and the property was not togo down to the descendants, how low soever, leaving the poor a very remotecontingent reversion. Abu Yusuf, in one of the arguments which I have alreadyreferred to, said that piety was consistent with the circumstance of a personreserving the revenue to his own use, because the prophet had said, "a mangiving subsistence to himself was giving alms." I understand this passageto mean that when a property is really dedicated to God, a man might reservethe revenue thereof for his own use during his lifetime, and the decision ofMr. Justice Kemp in Muzhurool Huq v. Puhraj Ditarey Mohapattur 13 W.R. 235 is,I think, consistent with this argument. However that may be, it seems to methat the case is different where a person consecrates his property not reallyto God, reserving to himself and to certain persons named the income thereofduring their lifetime, but with a view of benefiting himself and hisdescendants only, ties up the property in such a manner that the income wouldgo to him and to his heir in perpetuity, the reversion to the poor beingmentioned simply to enable the settlor to describe the settlement as wakf. Andin this respect it seems to me that we have to guide ourselves by theinterpretation which the expression "pious intention" has receivedfor a long series of years in our Courts; and it is too late now to disturb therulings upon that point.

194. In the case of Mahomed Ahsanulla Chowdhry v. AmarchandKundu I.L.R. 17 Cal. 498 : I. L.R. 17 IndAp 28, already referred to, before thePrivy Council, Lord Hobhouse is reported in the course of argument to haveexpressed himself thus:

There is no trace in these oases of the doctrine that amans gift to his own family is itself a pious use.

195. And Lord WATSON is reported to have said:

There must be complete dedication to makes a wakf, the deedmust not give a mere spes successionis.

196. In the case of Deedar Hossein v. Zuhoor-oon-Nissa 2Moo. I.A. 44(477), where the question was one of succession according to theImamiah law, the Judicial Committee, with reference to Section 15, RegulationIV of 1793, observed as follows:

If each sect has its own rule according to the Mahomedanlaw, that rule should be followed with respect to litigants of that sect. Suchis the natural construction of this regulation, and it accords with the justand equitable principle upon which it is founded, and gives effect to theusages of each religion which it was evidently its object to preserveunchanged; we see no doubt, therefore, that we ought to interpret theRegulation of 1793 to adopt the usage or law of each sect, unless there be acourse of judicial decision or established practice to the contrary.

197. In the case of Chotay Lall v. Chunnoo Lall I.L.R. 4Cal. 744 (755), with reference to the question of the Hindu law that was raisedin the case, the Judicial Committee said:

Their Lordships think that after the series of decisionswhich have occurred in Bengal and Madras it would be unsafe to open them bygiving effect to arguments founded on a different interpretation of old andobscure texts; and they agree in the observations which are to be found at theend of the judgment of the High Court, that Courts ought not to unsettle a ruleof inheritance affirmed by a long course of decisions unless indeed it ismanifestly opposed to law and reason, They do not think this rule is opposed tothe spirit and the principle of the law of Mitakshara; on the contrary, itappears to them to be in accordance with them.

198. And in the judgment in the same case in this Court,Couch, C.J., observed 14 B.L.R. 235 (253):

Certainly when we have the various decisions of the SudderCourt here upon the law which is applicable in this suit, and the decision ofthe High Court at Madras upon a similar law, in which no substantial differencecan be pointed out with reference to this question, we ought not to unsettlethe law which appears to have been received on this side of India for the last50 years on account of the opinion of a Judge of the High Court at Bombay,however learned he may be. The consequences at the present time would be mostserious. Courts ought always to bear in mind that it is no light matter toreverse a series of decisions which must have been acted upon for many yearsand have been regarded as declaring what was the law.

199. That being the view which both the Privy Council andthis Court have expressed more than once, 1 do not think it would be right nowto unsettle the law as it has been adopted here for a long series of years,merely because there may be texts in the Mahomedan books which favour the ideathat a settlement upon ones self and his children in perpetuity is a piousact.

200. There is one other matter to which I should like torefer in this connection, although, perhaps, in the view I have alreadyexpressed, it may not be necessary to do so, and it is this--Bearing in mindthat the plaintiff is a person of a different persuasion from the defendant,and that the Mahomedan Law according to Act XII of 1887, Section 37, is not tobe applied in this case strictly, but tempered by the rule of justice, equity,and good conscience, is it right that we should give effect to this deed so asto deprive the creditor of his remedy It will be observed that there is nodisposition of the proceeds of the property during the settlors lifetime. Itis only after his death that the income is to be partly applied to the paymentof fixed allowances and to the small charities mentioned, and the balance is tobe accumulated to the credit of the Trust Fund. It seems to me that, at anyrate, so far as the proceeds of the property during the lifetime of Bikani Miaare concerned, they are seizable by the creditor for the satisfaction of hisdebt, and it seems to be a matter for serious consideration whether in a caselike this, where a person, in the name of wakf, makes provisions for his familyin perpetuity and enjoys the property himself, as before, as owner, it would bejust, equitable, or consonant with good conscience that the settlement shouldbe a protection against the claim of a creditor of a different persuasion.

201. In the view I have expressed, 1 am of opinion thatthese appeals should be dismissed.

202. As regards the cross-objection to the decree of theDistrict Judge relating to the charge of Rs. 75 a year upon the property ofBikani Mia, I think that it should be disallowed. By the deed of the 4thAughran 1281, Bikani did create a valid charge in favour of the poor andstudents to the extent of the amount just mentioned; and there is no reason whythis charge should not be affirmed.

Trevelyan, J.

203. In the first place I think that no question of lawreally arises in these second appeals. There can be no doubt upon theauthorities quoted to us at the bar that if it appears from the evidence in thecase and the conduct of the supposed wakif that he never had any real intentionto create a wakf, no such wakf can be held to be created, although he may havepurported to create one. Apart from the other authorities cited, Mr. Ameer Aliat page 349 of his Tagore Law Lectures applies to wakfs the principle appliedto Hindu endowments in the case of Gunga Narain Sircar v. Brindabun Chunder KurChowdhry 3 W.R. 142, and I agree with him in thinking that it is so applicable.It was there held that the tests of a bona fide or a nominal endowment are:"how did the founder treat this property, or how have his descendantstreated it; has the income of the endowed lands been continuously applied tothe object of dedication"

204. The Court of First Instance has held very clearly thatthe alleged wakif had no intention of creating a wakf, and that the documentwas a nominal one, i.e., a mere sham.

205. This he has held from the conduct of the alleged wakifabout the time of the execution of the wakfnama. The District Judge on appealhas not said that he agrees with this finding, but he nowhere says that hedissents from it. He says that the excuse given by the appellant for notregistering his title as mutwalli is a very lame one, and also says that as theincome consists in part of rents of houses and lands in Dacca, it is difficultto conceive of an individual who really intended to make a wakf, being unableto produce a single scrap of paper to show his outlay and accounts. Mr. Hillsuggested that these observations in the judgment were not intended as theJudges own observations, but as the contentions of the respondent before him.I do not agree to this. I think they are his observations with reference to thecontentions which are there set forth. I am borne out in this view by the sixthground of appeal which shows how the judgment was first understood by the legaladvisers of the appellant. With regard to what was done by Haji Bikani Mia, theJudge says:

The evidence in fact shows that much that is relied on asindicating a compliance with the objects stated in the deed are acts which arecommonly performed by all pious and well-to-do Mahomedans without any coercion.

206. The Judge finds that the portion of the deed as to Rs.50 for the poor and as to the provision for a student has been acted upon, andwas intended to be carried out from the commencement. As I understand theJudges findings of fact, this was the only portion which was intended to becarried out. As he in effect finds that the main portion of the deed was neverintended to be acted upon, and that the appellant never treated himself asmutwalli, but only made those gifts as any other pious Mahomedan would do, I donot think that the Judge ought to have given any effect to the deed, and heought not to have made the charge which be has made. The circumstances of theHigh Court case to which he refers were entirely different. In that case theJudges gave full effect to the deed so far as in law it could be given effectto, and acted on the assumption that the donor intended to make the gift whichby the deed he purported to make. On the facts found by the Judge, I think heought to have dismissed in toto the appeals to him. Having regard to the recentPrivy Council decisions it is clear that we are not entitled in second appealto disturb in any way findings of fact. Although in consequence of the findingsof fact the question referred does not, in my opinion, arise in this case, and thereforeit would not be necessary to express an opinion on it, it is right that weshould consider it, as my learned colleagues do not all take the view that Mr.Beighton intended to determine the questions of fact, in the way in which Ithink he has determined them. The question referred to the Full Bench by theDivision Bench is whether the disposition of the grantors property under thedeed of the 4th Aughran 1281 was a valid wakf of the property dealt with by thedeed. The learned Judges, who referred this case, give as their reason forreferring it, that they are unable to reconcile the case of Meer Mahomed IsrailKhan v. Sashti Churn Ghose I.L.R. 19 Cal. 412 [LQ/CalHC/1892/13] decided on the 18th of March lastby Mr. Justice OKinealy and Mr. Justice Ameer Ali, with the judgment of Mr.Justice Tottenham and myself in Rasamaya Dhur Chowdhuri v. Abul Fata MahomedIshak I.L.R. 18 Cal. 399 [LQ/CalHC/1891/14] . In his judgment in the case to which I have referred,Mr. Justice Ameer Ali points out that the facts in the case before Mr. JusticeTottenham and myself do not bear the least analogy to the case before him.

207. He, however, makes observations in that case which arecalculated to throw a doubt upon the views expressed in the judgment of Mr.Justice Tottenham and myself.

208. The terms of the wakfnama in the present case do not, Ithink, resemble those of the wakfnamas in either of the cases cited, and afterhearing the argument in this case, 1 think it would have been possible for thereferring Bench to have decided this case without referring any question to theFull Bench. Although the learned Judges, who referred this case, have notexpressed the point (if any) upon which they differ from either of the casesmentioned in their order of reference, I understand that this reference has beenmade in consequence of the conflict between Mr. Justice Ameer Alisobservations and those made by Mr. Justice Tottenham.

209. I agree in thinking that, having regard to the decisionof the Privy Council in Mahomed Ahsanulla Chowdhry v. Amarchand Kundu I.L.R. 17Cal. 498 :I .L.R. 17 IndAp 28, and to the decisions of this Court, the wakfnamain the present case cannot be treated as containing valid provisions, and Ihold accordingly. I need not refer to the cases, as they are discussed atlength by my learned colleagues.

210. There can be no doubt that in questions of Mahomedanand Hindu Law alike, the course of the decisions of the Privy Council and ofthis Court must first be considered. Attempts to disturb the decisions byreference to texts and the vernacular writings of ancient lawyers tend only tounsettle the law and to disturb the rights of persons who have acted accordingto the decisions of the Court. The Mahomedan lawyers of this day would be morelikely to advise their clients and draw instruments in accordance with the viewtaken by this Court, than with regard to ancient futwas and text-books.

211. In a Hindu case, Hori Dasi Dabi v. The Secretary ofState for India in Council I.L.R. 5 Cal. 228 (242), Mr. Justice LOUIS Jacksonsays:

I confess that it seems to me to be among the advantages forwhich the people of this country have in these days to be thankful, that theirlegal controversies, the determination of their rights and their status, havepassed into the domain of lawyers, instead of pundits and casuists, and in myopinion, the case before us may very well be decided on the authority of caseswithout following Sreenath, Achyatanand and others through the mazes of theirspeculations on the origin and theory of gift.

212. I would respectfully appropriate these observations tothe present case.

213. As I have said, I agree in thinking that the presentwakfnama is invalid. I also agree in thinking that it is unnecessary to decidethe question whether a gift to a mans descendants for ever is good, providedthere be a subsequent gift to the poor or for other religious or charitablepurposes. I use the word "charitable" in the English sense, as thatis the sense in which it is used in the decisions in English Courts and in thetranslations into English. We have been invited to use the word"charitable" in what is called the Mahomedan sense, i.e., to use aword in another language which may mean another thing.

214. All I need say as to this question is, that after along argument in this case I see no reason to depart from the decision at whichI recently arrived in the case of Rasamaya Dhur Chowdhuri v. Abul Fata MahomedIshak I.L.R. 18 Cal. 399 [LQ/CalHC/1891/14] . I think that the cases cited clearly show that underthe law as administered by this Court a wakf is only valid if its substantialobject is for a religious or charitable purpose.

215. I need only add with reference to the question as towhether any number of titles are dependent on wakfnamas of that description,that there is no evidence of such fact before us, that it has not been assertedat the bar, and that I have no such experience.

216. In my opinion this appeal should be dismissed withcosts, and the cross objection should be allowed with costs.

Henry Thoby Princep, J.

217. These five second appeals have been referred to a FullBench by an order of Petheram, C.J. and Hill, J. of the 4th May last.

218. The cases admittedly will be governed by the samejudgment.

219. It is stated in the order of reference that "theonly question" which has been argued "before the learnedJudges," and as it is admitted "that the only question in thesecases, is whether the deed, dated the 4th Aughran 1281 (Ante p. 118), andexecuted by the defendant Haji Bikani Mia, constituted the properties withwhich it dealt wakf properties within the doctrines of Mahomedan Law."

220. The reason for the reference is said to be that thecase of Rasamaya Dhur Chowdhuri v. Abul Fata Mahomed Ishak I.L.R. 18 Cal. 399 [LQ/CalHC/1891/14] ,decided by Mr. Justice Tottenham and Mr. Justice Trevelyan on the 24th February1891, and the unreported case of Meer Mahomed Israil Khan v. Sashti Churn GhoseI.L.R. 19 Cal. 412 [LQ/CalHC/1892/13] , decided by Mr. Justice OKinealy and Mr. Justice AmeerAlion the 18th March last, are contradictory, and that as the learned Judges "areunable to reconcile the case last cited with that of Rasamaya Dhur Chowdhuri v.Abul Fata Mahomed Ishak I.L.R. 18 Cal. 399 [LQ/CalHC/1891/14] they refer to the Full Bench thequestion whether the disposition of the grantors property made by the deed ofthe 4th of Aughran 1281, was a valid wakf of the property dealt with by thedeed."

221. The terms of the original order of reference, which didnot leave the appeals for the final decision of the Full Bench, but made thatdecision dependent entirely on an answer to the question submitted, were not inaccordance with the rules of this Court, and in this respect the order ofreference was amended in the course of the argument of the learned Counsel forthe appellant so as to leave the decision of the appeals to the Full Bench. Buteven as the cases thus amended were before the Full Bench, the reference wasnot in accordance with the rules of this Court. Those rules run thus:

I. Whenever one Division Court shall differ from any otherDivision Court upon a point of law or usage having the force of law, the caseshall be referred for decision by a Full Bench.

II. If the question arise in an Appeal from AppellateDecree, the Court referring the case shall state the points upon which theydiffer from the decision of a former Division Court, and shall refer the appealfor the decision of a Full Bench.

222. It has, however, been found convenient, in order toattain the object of the decision of cases by a Full Bench, to consider anypoint referred regarding which diametrically contrary opinions have beenexpressed by two Division Benches. Such cases have, however, become rare oflate years. If therefore the two cases mentioned in the order of reference werecontradictory and could not be reconciled, there would, in my opinion, in the absenceof any special circumstances, be no valid objection to the hearing of thesecases by the Full Bench. The object of references to a Full Bench is to settlethe law for the local Court, until it shall have been otherwise enunciated by aSuperior Court such as that of their Lordships of the Privy Council. It is soexpressed by Peacock, C. J. in Prosunno Coomar Pal Chowdhry v. Koylash ChunderPal Chowdhry B.L.R. Sup. Vol. 759 : 8 W.R. 428 (434). In the case before us, inmy opinion--and I express it with some hesitation and with every respect tothat of the learned Judges who have made this reference-- the reference cannotproperly fulfil such an object. The case of Rasamaya Dhur Chowdhuri v. AbulFata Mahomed Ishak I.L.R. 18 Cal. 399 [LQ/CalHC/1891/14] is now under appeal to Her Majesty inCouncil. The transcript of the record in that case was forwarded to Englandearly in September last, and before the vacation, so that an early decision ofthat appeal may be shortly expected. Even, therefore, if the law were unsettledby two contradictory decisions, it is undesirable that the settlement of thepoint at issue should be complicated by a third decision of greater authority,probably, than either of those two decisions but in itself not unlikely to beset aside by a Superior Court, by the hearing of the appeals to be consideredby the Full Bench. It is not proper that we should criticize the law laid downby a Division Bench of this Court which is under appeal to Her Majesty inCouncil, and more particularly when an early delivery of the judgment of thatSuperior Court may be expected. Personally, therefore, on this ground alone, Ishould have preferred that these cases should not be heard by a Full Bench.Some of my colleagues, however, pressed for the trial, and I was thereforeunwilling to offer any opposition.

223. But on another ground I think that the matter has notbeen properly brought before the Full Bench, and may state that this objectiondid not become apparent until the facts of the two cases said to be contradictoryhad become known in the course of the arguments of learned Counsel. For thisreason I did not think it necessary to offer any objection on this ground. Inthe latter of the two cases, Ameer Ali, J. pointed out that the facts of thecase of Rasamaya Dhur Chowdhuri v. Abul Fata Mahomed Ishak I.L.R. 18 Cal. 399 [LQ/CalHC/1891/14] do not bear the least analogy to the case under trial before him. The learnedJudges who have referred the appeals now before us held that they werecontradictory. But after a careful consideration of these cases, I have nodoubt that the opinion expressed by Ameer Ali, J. is correct, and that the twocases are not contradictory because the judgments delivered proceeded ondifferent grounds.

224. In the case of Meer Mahomed Israil Khan v. Sashti ChurnGhose I.L.R. 19 Cal. 412 [LQ/CalHC/1892/13] it was not absolutely necessary to consider whetherthe property in suit was wakf. The fiduciary relation held by the defendantentitled the plaintiff to a reconveyance of the property whatever its characteras wakf or not as wakf. The Court, however, proceeded afterwards to considerwhether the property was wakf. And as it was pointed out by the learnedAdvocate-General, the remarks of the learned Judges on this part of the casewere not essential to the, decision. In the case of Rasamaya Dhur Chowdhuri v.Abul Fata Mahomed Ishak I.L.R. 18 Cal. 399 [LQ/CalHC/1891/14] , it was held that there was nodedication, as the Court found that the alleged appropriator never reallyintended to give up his proprietary right in the particular property. The deedsin the two cases were, moreover, of an entirely different character andexpressed in entirely different terms. If the Court trying the later case haddiffered from the view of the law in the earlier case on any point raised alsobefore it, I apprehend that the learned Judges would have abstained fromsetting themselves in opposition, but would, as usual, have submitted theparticular point for decision by a Full Bench.

225. Under such circumstances, in order to bring thisreference strictly within the terms of the rules of this Court, the referringBench should have pointed out which of these two cases was on all fours withthe case then before them, and they should then have expressed an opinion thatthe judgment in that case enunciated the law in a manner in which they did notagree.

226. The case of Rasamaya Dhur Chowdhuri v. Abul FataMahomed Ishak I.L.R. 18 Cal. 399 [LQ/CalHC/1891/14] , which is now under appeal to Her Majesty inCouncil, bears a resemblance to the present case, and argument has beenaddressed to us by learned Counsel to show that the law on which that judgmentproceeded is erroneous, and is not in accordance with the Mahomedan Law whichthis Court is bound to administer in such cases. This in itself would, I think,make it undesirable and indeed improper for us to express any opinion inanticipation of the result of the appeal to a superior Court.

227. On behalf of the appellant it has been contended thatit is the function of a Full Bench to express its opinion on any point of laweven if that opinion be contrary to the law laid down by their Lordships of thePrivy Council, and that this Court would be bound to follow such enunciation ofthe law. I cannot for one moment accede to this proposition, for it is entirelycontrary to the object for which under our rules Full Benches formed of alarger number of Judges than the Ordinary Benches of this Court areconstituted. Instead of settling the law, an attempt to re-open a matteralready finally Settled by the highest Court would only create confusion. To assertor to exercise such a power on the part of a Full Bench would moreover amountto the gravest judicial indiscretion.

228. Mr. Woodroffe for the respondents in reply pointed outthat, with the knowledge of the fact that the point of law argued in this caseand raised in Rasamaya Dhur Chowdhuri v. Abul Fata Mahomed Ishak I.L.R. 18 Cal.399 was now under appeal and would shortly be considered by their Lordships ofthe Privy Council, the decision of this Full Bench contrary to the opinionexpressed in the former case would not be to carry out the real object ofreferences to a Full Bench, but would be an attempt to dictate to the PrivyCouncil a view of the law which a larger number of Judges than thatconstituting the Bench in the case under appeal entertain, and thus in somedegree to embarrass the decision of the appeal in that case. As I have alreadystated, it is for considerations of such a character that I personally shouldhave preferred to postpone the trial of these cases until the decision of the appealnow before their Lordships of the Privy Council.

229. The matter for our decision in these appeals is simplywhether the deed of the 4th Aughran 1281 constitutes a valid wakf such as isbinding under the Mahomodan Law.

230. The suits have been brought by decree-holders seekingto attach and sell property covered by this deed in execution of decreesobtained against the grantor who has constituted himself the mutwalli, theattachment of this property in execution of those decrees having been removed onthe objection of the debtor that the property is not his personal property, butwakf and inalienable.

231. Both the lower Courts have given decrees in favour ofthe plaintiffs, The Subordinate Judge, as a Court of First Instance, found fromthe conduct of the grantor and the terms of the deed itself, that it was notthe intention of the grantor to make a valid wakf; that he never seriouslythought of the total extinction of his descendants and of the probablecontingency of a reversion to the poor; that he never gave any effect to thewakf, but continued to enjoy the property as before, and even confessed, beforesome respectable pleaders, that he had no mind to give any effect to the deed.The Subordinate Judge accordingly found that the endowment was nominal and nobar to the attachment and sale of property in execution of the decrees againstthe debtor. The District Judge in appeal practically affirmed the decree of thefirst Court; he modified it in so far as to hold that a valid charge on theproperty was created by the deed to the extent of an allowance of Rs. 75 onlyon behalf of the poor and students. The District Judge followed the judgment inthe case of Rasamaya Dhur Chowdhuri v. Abul Fata Mahomed Ishak I.L.R. 18 Cal.399, finding that the terms of the document in that suit were singularly likethose of the document before him, and he added that in fact the preamble isalmost word for word identical.

232. The terms of the District Judges judgment have raisedsome doubt whether he found in concurrence with the first Court that theintention of the grantor was not to constitute a valid wakf under the Mahomedanlaw. There is no doubt that he does not differ from the first Court in thisrespect, and in some passages of his judgment it would seem that he wasinclined to concur. His attention, however, seems to have been principallydirected to the consideration of the Mahomedan law in construing the terms ofthe deed before him. The argument was distinctly raised before the DistrictJudge on appeal by the respondent in support of judgment of the first Court,and is set out in his judgment. The learned Judge seems to have confined hisattention to what he considered the only point in the case, having reference tothe judgment of the Privy Council in Mahomed Ahsanulla Chowdhry v. AmarchandKundu I.L.R. 17 Cal. 498 : I.L.R. 17 IndAp 28, namely, whether there was asubstantial dedication to charity in the case before him. His finding is thatthere was no such dedication, and inasmuch as the learned Judge expresses nodissent from the finding of the first Court that it was not the intention ofthe grantor to create a valid wakf under the Mahomedan law, 1 am of opinionthat it muse be held that, although expressed in a somewhat different form, thefinding of the District Judge was in accordance with that of the first Court.

233. In this view I think that there is no point of lawarising in these second appeals, and that the decrees of the District Judgeshould be affirmed and the appeals dismissed on this ground.

234. The opinion which I have expressed seems to render itunnecessary that I should proceed further to discuss the other questions whichhave been argued before this Full Bench for eight days, in the course of whichthere has been considerable discussion on complicated points of Mahomedan law,and their application to cases such as that brought by the plaintiffs in thesesuits. For this reason, and more especially as my opinion already expressed isnot that accepted by some of my other colleagues, I think it desirable that Ishould proceed further with these cases.

235. The matters discussed, and on which our opinion hasbeen desired, raise the question what is a valid wakf under the Mahomedan law.The extreme position contended for, on the one side, is that it is competent tothe proprietor of Immovable property to create a wakf, that is, a religiousendowment declaring that during his lifetime and that of his lawful heirs, suchpersons shall in turn be mutwallis of such property, having absolute controlover all income derived therefrom, but that in default of such persons, theestate should go to the poor; the dedication of the proprietorship to God, soas to divest the appropriator and the ultimate bestowal on the poor or somesuch object, on failure of the descendants of the appropriator being sufficientto constitute a wakf.

236. I think, however, that it is unnecessary to enter intoany minute consideration of what may or may not be a valid wakf under theMahomedan law, as obtained from the learned Doctors, because I find that thatlaw has been settled by our Courts by a long course of decisions, commencingfrom 1798, and that it is only in recent times, as I shall presently show, thatthere has been any tendency to question the law so laid down.

237. The first reported case on this subject is that ofMoohummud Sadik v. Moohummud Ali 1 Sel. Rep. 17 (O); 23 (N), decided by theSudder Dewany Adawlut on the 6th December 179H. The object of the grant in thatcase was the maintenance of a durgah, and of the buildings and lands attachedthereto, the grantee and his heirs having been appointed for thesuperintendence of this duty. There is no question that the object of this wakfwas strictly religious. The next case Hya-on-nisa v. Mofukhir-ol-Islam 1 Sel.Rep. 106 (O) : 140 (N), decided on the 17th September 1805, related also to anestablishment strictly of a religious character. In Meer Nusrut Ali v. MeerCasim Ali 1 Sel. Rep. 108 (O); 143 (N) decided on the 17th September 1805, areligious endowment was set up, but it was found that there was no assignmentfor pious purposes, the property being heritable, and consequently partibleamongst all the heirs of the alleged grantor. In Hyatee Khanam v. KoolsoomKhanum 1 Sel. Rep. 214 (O); 285 (N), decided on 4th September 1807, theendowment was for the maintenance of a mosque, and the wife of the appropriatorwas appointed mutwalli, with direction to defray the charges of theestablishment out of the profits of the particular property, and it was furtherprovided that, out of the surplus remaining after defraying such charges, sheshould reserve to herself a 91/2 annas share, and that the other wives were toshare in the balance. This was held to be a valid endowment so far as theparticular share of the appropriator in these properties. In Kulb Ali, Hoosrinv. Syf Ali 2 Sel. Rep. 110 (O); 139 (N)] the wakf was for pious and charitablepurposes, such as the support of religious mendicants and students, and therepairs of mosques and other public edifices, the general superintendence beingconfided to a certain person and his heirs and successors for ever. The subjectof the grant in Radira v. Shah Kubeerooddeen Ahmud 3 Sel. Rep. 407 (O); 543(N), was the well-known religious establishment at Sasseram, and the object ofthe wakf was strictly religious and charitable within the meaning accepted byus. It may be mentioned here that it is only owing to the meaning of this termthat the difficulty in a great measure has arisen.

238. The case subsequently came before the JudicialCommittee of the Privy Council on appeal.

239. In Abul Hasan v. Haji Mohammad Masih Karbalai 5 Sel.Rep. 87 (O); 104 (N), decided on the 17th February 1831, the endowment was fora cemetery, a monastery and a shrine, for strictly public or religiouspurposes. In Muhammad Kasim v. Muhammad Alum 5 Sel. Rep. 133 (O); 159 (N),decided on the 30th July 1831, the endowment was of a religious character, theland being dedicated as pivotar, that is, for the worship of a saint In ShahImam. Bukhsh v. Beebee Shahee 6 Sel. Rep. 22 (O); 24 (N)], decided on the 5thMarch 1835, the object of the wakf was the maintenance of a durgah. Inchronological order the next case is that of Deo d. Jaun Beebee v. AbdollahBarber Fulton, 345, decided in the lute Supreme Court in March 1838. I proposeto refer to this case later on, and will therefore proceed to the next case inorder of time, that of Jewun Doss Sahoo v. Shah Kubeer-ood-deen 2 Moo. I.A.390, decided by their Lordships of the Privy Council in 1840, and in that casethe object of the endowment was the maintenance of the well-known khankahatSasseram, a religious and charitable establishment which formed the subject ofone of the cases in the Select Reports already referred to. In Moulvee Abdoollav. Rajesri Dossea 7 Sel. Rep. 268 (O); 320 (N), decided on the 19th July 1846,the endowment was also of a religious character, namely, the maintenance of amosque. In Bindersoondree Dassea v. Meheroonnissa Khatoon S.D.A. (1853), 69,decided on the 20th January 1853, a claim was set up that a certain portion ofthe land in suit was wakf, but it was found that there was no documentaryevidence that the land was uniformly appropriated as wakf, and no property canbe considered as such unless it be satisfactorily established that it has beenspecially so appropriated. In Hajee Nooroollah v. Meer Waris Hossem S.D.A.(1853), 411 the parties were found to be holding separate shares of a certainland, calling it wakf, while they used it for their own private purposes. The claimmade that the lands were wakf was disallowed. In Khajeh Sirwar Hossem Khan v.Shumsoonnissa Begum S.D.A. (1853), 558, decided on the 28th June 1853, thegrant declared a joint right in all the lineal descendants of the appropriatorto share without any actual division of the proceeds of the property with theduties attaching to them as regards the maintenance of the tomb, and it wasdeclared that all such persons were entitled to share according to their rightsof inheritance under Mahomedan Law in the proceeds of the endowed property, andall must be held to have an interest in the general administration of theendowment. The real object of the wakf was, as I understand it, the performanceof certain duties in regard to the maintenance of a tomb, and the moneys givento the descendants of the appropriator were burdened with this duty. It wasonly after a due discharge of this duty that they would properly appropriatethe income of the endowed property to their own private use. In MhodabundhaKhan v. Oomutul Fatima S.D.A. (1857) 235, decided on the 21st February 1857,the deed which was set up as constituting a wakf was declared to constitute anabsolute devise to one Tussuduck Hossain, subject to certain trusts and a lifeinterest of Janee Khanum on the surplus proceeds of the property, and it wasfurther declared that this deed did not create a wakf in the sense in whichthat term is used in Mahomedan Law, for that term, as ruled in Moohummud Sadikv. Moohummud Ali 1 Sel. Rep. 17(O); 23 (N) (a case already cited by me),imports property in which proprietary right is relinquished, and which isconsecrated in such manner to the service of God that it may be of benefit tomen. The learned Judges of the Sudder Court also held that, in interpreting thedeed, the intention of the person executing it must be looked to, and that todo so, all parts of it should be considered in relation to each other, so as,if possible, to form one consistent whole."

240. In Agha Mahomed Eusoof Mooshadee v. Abool Hossein KhanS.D.A. (1857) 640, decided on the 22nd April 1857, the object of the endowmentwas stated to be solely for religious purposes, for a mosque, an imambara, andfor repairing a tomb of the grantors ancestors, and the appropriator thenappointed himself superintendent or mutwali. The only question raised in thatcase was the right of succession to the office of mutwali. In Dalrymple v.Khoondkar Azeezul Islam S.D.A. (1858), 586, decided on the 31st March 1858, itwas held that where an endowment is wholly, wakf, that is, where the whole ofthe profits are devoted to religious purposes, the mutwalli has no authority togrant a lease extending beyond the period of his own life, but if the office ofmutwalli is hereditary and the incumbent has a beneficial interest in theheritable estate, the property is vested in the mutwalli and his heirs. And itwas further held that in such a case the mutwalli might exercise the right togrant leases even in perpetuity. In the same reports, at page 1218, in MahomedMunnoo Chowdree v. Hajra Beebee S.D.A. (1858), 1218 decided on the first July1858, there was apparently some interest for the family of the alleged endower.The Court found that the plaintiffs do not style the land sued for by them wakfof which the proprietary right has been relinquished, and which has beenconsecrated in such a manner to the service of God that it might be of benefitto men; that they assert that it was their heritable property, the profitsbeing appropriated to the service of the musjid; in other words, that it was anestate of inheritance charged with certain trusts. The case was remanded forretrial by the lower Court in order to determine the nature of the propertyclaimed, whether it be strictly endowed, or whether it was heritable propertysubject or not to certain trusts. If it was the former, it was held by theCourt that its alienation by sale would, of course, under the Mahomedan Law, beillegal; if of the latter description, that it would be heritable and capableof being sold. In Bibee Kuneez Fatima v. Bibee Saheba Jan 8 W.R. 313, decidedon the 8th August 1867, the grant recited that in consideration of thecharitable disposition of the grantor and the expenses which he voluntarilyincurred in supporting poor students, in giving alms to mendicants and food andshelter to travellers, the grantor remitted in the future payment of cesses andrequested the grantee to give the grantor the benefit of his prayers. This washeld not to constitute a valid wakf, as there was no dedication of propertiessolely to the worship of God or to any religious or charitable purposes.

241. The next case is that of Khajah Hossein Ali v. ShazadeeHazara Begum 12 W.R. 344 : S.C. 498 : 4 B.L.R.A.C. 86, decided on the 25thAugust 1869. From the terms of the deed, as set out in the judgment of Mr.Justice MARKBY, it appears that the object of the wakf was the care oftravellers and the poor, the maintenance of certain specified Mahomedanfestivals, and afterwards for the personal expenses of the appropriator as wellas for his family. The main, if not the only, issue in that case was simplywhether the property under mortgage was a proper subject of wakf under theMahomedan Law; and this was allowed, no question being raised, nor indeed couldbe properly raised, as to the validity of the wakf in other respects. Theprimary and substantial object of the wakf was of a religious and charitablecharacter. The next case is that of Muzhurool Huq v. Puhraj Ditarey Mohapttur13 W.R. 235, decided on the 2nd March 1870, and this case is deserving ofspecial mention, because a portion of the judgment has been quoted withapproval by their Lordships of the Privy Council. In describing the wakf it wasstated that the "primary objects with which the lands are endowed underthe Mahomedan Law, and which is the only object, are to support the mosque andto defray the expenses of worship conducted in that mosque. It is firstprovided that from the profits of the endowed lands the mosque will be repairedand lighted and furnished on certain festivals; that travellers are not to beallowed to go away hungry; that an establishment, including a Muazzun, orcaller to prayers, and other necessary servants of the mosque, are to be keptup; that mendicants are to have alms given to them; that a certain number ofpoor scholars are to be educated in Arabic, which necessitates the employmentof a teacher; and lastly that from the remaining profits the expenses for themarriages, burials, and circumcisions of the members of the family of themutwalli were to be defrayed. This was to be done after the primary objects forwhich the endowment was made, and which objects have been already detailedabove, were fully accomplished."

242. The judgment proceeds in these terms:

We are of opinion that the mere charge upon the profits ofthe estate of certain items, which must in the course of time necessarilycease, being confined to one family, and for particular purposes, and which,after they lapse, will leave the whole profits intact for the original purposesfor which the endowment was made, does not render the endowment invalid underthe Mahomedan Law. A person may make an endowment settling land on himself, andenjoying the profits during his lifetime, and after his lifetime, devoting theprofits to the support of the poor, the main object of the Mahomedan Law beingthat the profits of the land endowed should be endowed for a purpose whichalways remains in existence. Now, the poor are always with us, and therefore, aman making an endowment, and enjoying the profits during his lifetime, to go tothe poor after his death, does not make the endowment for an uncertain ornon-existent object.

243. In this case the family of the mutwalli was providedfor after the religious and charitable purposes for which the wakf was createdhad been satisfied, or, to repeat the words of the judgment. "This (thatis the application of funds to the family) was to be done after the primaryobjects for which the endowment was made were fully accomplished." InDoyal Chund Mullick v. Syud Keramut All 16 W.R. 116, in which case Mr. JusticeKemp was again one of the Judges, decided on the 30th June 1871, the same viewwas taken. The object of the appropriation was stated to be "the settingapart of a piece of land for the ultimate site of a mosque and for the presentuse of Mahomedans as a place of meeting on the great festivals of theirreligion where the Koran might be read and charitable doles made," andthese objects were held to constitute a valid wakf when accompanied by a solemndedication to God. The next case on the subject is that of The Advocate-Generalv. Fatima Sultani Begum 9 Bom. H.C. 19 decided on the 21st February 1872. Thewakfnama is described as reciting that the appropriator had built a mosque inBombay, and "declares that he thereby makes a legal, firm and clearendowment of the whole and every part of his garden, etc., in favour of themosque, and that such endowment is made in such way that whatever incomederived from the garden, etc., there may be remaining, after deducting theirexpenses, shall be expended in making the necessary repairs and in defrayingthe expenses of the mosque, and if after defraying such expenses there shouldbe any surplus, then that surplus should be expended in defraying the expensesof the mourning of the founder, the chief of the martyrs." It thenprovides that the guardianship of the mosque rests with the endower during theterm of his natural life, and after his decease it rests with any one of hisrelations who may be intelligent and of good reputation, provided he shall beresident in Bombay, otherwise the guardianship shall rest with any Shirazmerchant of good reputation. The suit related to the appointment of a mutwalli,but the wakfnama shows that the endowment was strictly for religious and piouspurposes, although the appropriator and his descendants were in turn appointedmutwallis, and as such to attend to the distribution of the proceeds of theendowment. Similarly in Abdul Ganne Kasam v. Hussen Miya Rahimtula 10 Bom. H.C.7 it was held on the 31st January 1873, that to constitute a valid wakf theremust be a dedication of the property solely to the worship of God or toreligious and pious purposes. The deed in that case which created a wakf ofcertain property in favour of the donors and their family and children did notconstitute a valid wakf.

244. The next case is that of Mahomed Hamidulla Khan v.Lotful Huq I.L.R. 6 Cal. 744 : 8 I.L.R. 164, decided on the 2nd February 1881.In that case there was an assignment of a share of certain properties for amosque and its expenses, and out of the remainder, specified shares were statedto have been made wakf in favour of each of two daughters and their respectivedescendants in turn so long as they existed, and on their failure these propertieswere to be applied to the poor and needy. It was held that the shares of theproperties given to these daughters and their descendants did not constitute avalid wakf, and they were made liable to sale for the debts of the ladies. Theother share in the properties which was given for the maintenance of the mosqueremained untouched. In Luchmiput Singh v. Amir Alum I.L.R. 9 Cal. 176 decidedon the 3rd July 1882, the wakf was created for the expenses of a musjid and atomb, the servants of a certain Asthan and for performing certain worships atthe tomb, and certain relations of the appropriator were appointed mutwallis.Provision was also made that certain debts should be first paid, and it wasdeclared that the manager should afterwards apply the property towards thereligious uses created and the maintenance of the settlors grandsons and theirmale issues, and it was held that the subject of the wakf first stated, thatis, for the maintenance of the mosque and the tomb, were all distinctly religious,and, to some extent, involved charity to the poor; and further, that thesubsequent direction that the manager should maintain the future maledescendants of the wakif did not necessarily change its character. The wakf wasaccordingly maintained.

245. In Jayatmoni Chowdrani v. Ramjani Bibee I.L.R. 10 Cal.533, decided on the 22nd February 1884, the wakf was for the purpose of themaintenance of the mosque and a madrassa, and the proceeds from the propertyappropriated were divided into three portions-- 1/3rd for the expenses of themaintenance for the mosque, 1/3rd for the maintenance of the madrassa, and theremaining 1/3rd for the maintenance of the mutwalli. The wakf in this case alsowas confirmed.

246. Of the other cases decided by this Court, it isnecessary only to mention the two cases cited in the order of reference. Wehave, moreover, two cases decided by the Madras High Court to which specialreference is unnecessary.

247. There are, next, two cases decided by the Bombay HighCourt. The first was decided by WEST, J.--Fatmabibi v. The Advocate-General ofBombay I.L.R. 6 Bom. 42. The other case was decided by FARRAN, J.--AmrutlalKalidas v. Shaik Hussein I.L.R. 11 Bom. 492 in which the last-mentioned casewas followed. In reference to these cases which proceed on a somewhat differentprinciple from all the cases previously cited, and support the argument onbehalf of the appellant in the cases now before us, their Lordships of thePrivy Council in Mahomed Ahsanulla Chowdhry v. Amarchand Kundu I.L.R. 17 Cal.498 (510) :I. L.R. 17 IndAp 28 (37) point out that "the observations ofMr. Justice West are of an extra-judicial character, as the case in which theywere uttered did not raise the question." There is, lastly, the decisionof the Judicial Committee of the Privy Council in the case last mentioned, inwhich the intention of the appropriator in the creation of the wakf was held tobe of vital importance in deciding whether the deed set up constituted a validendowment, and it was held in that case that as there was no reason to supposethat the charitable uses provided for by the deed would absorb more than adevout and worthy Mahomedan gentleman might find it becoming to spend in thatway, there was no indication of any intention to constitute a valid wakf.

248. In the case of Doe d. Jaun Beebee v. Abdollah BarberFulton, 345 the matter to which the attention of the Court was directed was theobjection taken that the deed did not constitute a valid wakf, but was rather awill and executed under the name of wakf as a device to divert the order ofinheritance under the Mahomedan Law. The Court, it will be observed from theterms of the first question put to the Law Officers, regarded the endowment asone to charitable uses, but doubted whether it was valid when qualified by areservation of the rents and profits to the donor during his life. The opinionof the Law Officers on this and on the other questions referred goes somewhatupon the terms of those questions. No doubt the Mahomedan Law Officersconsulted pronounced it to be a valid wakf. But no objection was taken, nor wasthe question considered by the Court itself that a settlement of that naturewas not a dedication to God or for the service of man in so far as it providedin the present instance for the maintenance of the appropriator and his familywith an obligation to apply an undefined portion of the proceeds to certainreligious purposes. It is noteworthy, too, that in the deed in that case powerwas given to the appropriator to increase or decrease the number of those whowere, as members of the family, entitled to receive maintenance according tothe increase or decrease in the produce. I did not therefore regard this caseas any serious interruption to the current of cases decided by the SudderDewany Adawlut. So far, then, it appears from all the cases in our reports,commencing in 1798, to the present time, with the exception of the two cases inthe Bombay High Court and the case in Fultons Reports which can bedistinguished, that the primary and substantial object of every wakf which wasrecognized as constituting a valid endowment, was the maintenance of somereligious institution or to carry out some charitable purpose in the ordinarysignification of that term. Whenever there was provision made for any otherobject, such as the support of the appropriator or any member of his family, itwas always of a subsidiary character, and in such cases it was regarded asconstituting a special charge on the proceeds of the endowed land after theoriginal object was satisfied.

249. There is no case in which a wakf was allowed in whichthe primary object was the maintenance of the appropriator and his family andhis descendants except in one of the cases cited in which the wakf wasdisallowed. Having regard, then, to the current of decisions which have settledthe law at least on this side of India, I should not be prepared to adopt anynew view of the law unless it were laid down by some higher authority than oneof our Indian Courts. I would quote here the remarks of their Lordships of thePrivy Council in Chotay Lall v. Chunnoo Lall I.L.R. 4 Cal. 744 (755),"that after the series of decisions which has occurred in Bengal andMadras, it would be unsafe to open them by giving effect to arguments foundedon a different interpretation of old and obscure texts," and "thatthe Courts ought not to unsettle a rule (of inheritance) affirmed by a longcourse of decisions, unless, indeed, it is manifestly opposed to law andreason." The view of the Mahomedan law pressed on us at the hearing ofthese appeals is certainly new to our Courts, and I may say that I have norecollection during a long experience of its ever having been addressed to me.It certainly has never found any place in any of our reports, nor can we findthat in any of our reports were wakfs founded on the principles which we areasked to adopt ever brought before our Courts. It is almost impossible toaccount for the absence of any such case, if the view now pressed on us hasbeen extensively recognized and adopted; for cases are constantly arising inwhich endowments as wakf are set up in bar of execution of decrees for debtagainst the attachment and sale of properties held by a Mahomedan.

250. It has been stated that if the law as hitherto laiddown be adopted, it will affect numerous large and valuable estates, but noauthority has been given for this statement, and I am certainly not aware ofany such cases. It seems to me rather that if the law be changed it would havea very serious effect on titles acquired on the strength of the hithertorecognized law in this respect founded generally on sales in executions ofdecrees held by our Courts in which claims as wakf have been disallowed. Theonly effect upon existing titles of a re-affirmance of what appears to me to bethe existing law laid down by the Courts would be to operate as a warning topersons holding estates under such settlements that such estates cannot beprotected by a given religious or charitable dedication from the usual legalliability for debts incurred by them.

251. It has been contended by the learned Advocate-Generalthat in the decision of this and other similar matters, involving aconsideration of the Mahomedan law, and equally Hindu law, in which our Courtshave been required to observe such laws, if one of the parties be not of one ofthose religious, the Courts in applying such special law should be guided byprinciples of justice, equity, and good conscience. It is unnecessary, perhaps,to express any opinion on this point for the purposes of the appeals before usin view of the conclusion at which I have arrived. But it is a matter forserious consideration whether under what may be termed a family settlement,providing that, on default of any member of such family, the proceeds of theproperty under settlement should go to the poor or to any other charitable orreligious purposes, the members of such family should by a strict applicationof the Mahomedan law be exempt from being compelled to pay their lawful debtsand thus be assured of a regular certain income.

252. I have discussed the question connected with theMahomedan law to be administered by our Courts relating to wakf, becauseconsiderable argument has been addressed to us on this point, but, as I havealready stated, on the main questions the appeals must fail, since on thefindings of the District Judge, no second appeal lies, and it becomesunnecessary, in my opinion, to answer the question referred to us.

253. In regard to the objection raised by the respondent tothe order of the District Judge, allowing a charge of Rs. 75 for the poor andstudents, I find that such a charge was allowed by the Judges of this Court inMahomed Ahsanulla Chowdhry v. Amarchand Kundu I.L.R. 17 Cal. 498 : I.L.R. 17 IndAp28, and was not set aside by their Lordships of the Privy Council in thejudgment as reported in I.L.R. 17 Ind. App., 28. I see no reason, therefore, todisallow it in these appeals.

William Comer Petheram, C.J.

254. The plaintiffs in this suit are the holders of adecree against the defendant Haji Bikani Mia for Rs. 3,448 2 annas 8 pies andinterest, and in execution of it attached certain properties as belonging tohim and being in his possession. Upon this, he applied for the release of theproperty, on the ground that it does not belong to him, but is a portion of awakf estate of which he is the mutwalli.

255. The application was allowed, the property released, andthe present action brought to set aside the order of release and to obtain a declarationthat the property is liable to attachment and sale in satisfaction of theplaintiffs decree.

256. The question is whether a deed executed by Bikani Mia,on the 4th of Aughran 1281 (19th November 1874), and registered by him in theRegistry of Dacca, was effectual to create a valid wakf of the properties dealtwith by it, and so to render them inalienable. The instrument in question wasexecuted shortly before Bikani Mia set out on a pilgrimage to Mecca, and at thetime of its execution he was in possession of sufficient property, over andabove that dealt with by the instrument, to satisfy all debts which he hadincurred or for which he was liable at the time.

257. After reciting the reasons for its execution theinstrument proceeds:

I do hereby make a permanent wakf of the undermentionedproperties in favour of my two sons, my four daughters, and my wife, and afterthem the successive descendants of my said sons and daughters and theirdescendants, and on their death, i.e., in the case of my said sons anddaughters dying issueless, in favour of the poor and indigent and the beggarsresiding in the town of Dacca. Taking the said wakf properties out of myownership and possession I hold them in possession as mutwalli under the termsof this wakf. As long as I shall live, I myself shall continue to be themutwalli, and as such shall do everything according to the terms of the saidwakf. On my death my two sons, Sriman Abdul Rahaman Mia and Sriman Abdul SobhanMia, shall, as hereinafter provided, be appointed mutwallit in my place.

258. The instrument then provides that the mutwallis shallalways be selected from Bikani Mias descendants, that after his death themutwallis shall be competent to spend any amount of money they think proper forthe sake of his salvation, and that after his death they shall in every yeargive away Rs. 50 in charity and maintain one student; that they shall pay Rs.50 a year to the wife, and Rs. 100 a year to each of the two sons, and Rs. 50to each of the four daughters and to the descendants of each of these sixpersons until they are exhausted, and that the residue of the income shall beaccumulated by the mutwallis for the purpose of increasing the wakf estate.

259. The Subordinate Judge, before whom the suit came in thefirst instance, decreed it on the ground that the transaction was a nominalone, and could not have been made with any real intention that it should beacted upon.

260. The District Judge has, as I understand his judgment,considered the question solely with reference to the construction of the deed,and has come to the conclusion that it created a valid wakf or endowment to theextent of Rs. 75 a year, that being the amount specifically allotted tocharities, and that, subject to a charge for that amount, the properties arealienable, notwithstanding the execution of the instrument by the owner. Fromhis decree the defendant appealed to this Court, and the plaintiff filed across-objection to the allowance of the charge for the Rs. 75 a year. The appealcame before a Division Bench which consisted of Mr. Justice Hill and myself,and upon the argument the plaintiff relied on the judgment of Tottenham andTrevelyan, JJ., in the case of Rasamaya Dhur Chowdhuri v. Abul Fata MahomedIshak I.L.R. 18 Cal. 399 [LQ/CalHC/1891/14] , in which case, as 1 understand the judgment, theDivision Bench held that a wakf or consecration must be for the benefit of abody which from its nature cannot fail, i.e., for the public or for some classof the public, and that though the consecration may be subject to a conditionby which the usufruct of the consecrated estate is reserved partially and/ortemporarily for the benefit of particular individuals, such condition orreservation must not be of such a character as to render the grant for the benefitof the permanent body inoperative and illusory, and that a condition that thewhole income of the consecrated estate should be paid to the members of aparticular family so long as any member of it remained in existence, would havethat effect.

261. The defendants relied on the judgment of OKinealy andAmeer Ali, JJ., in the case of Meer Mahomed Israil Khan v. Sashti Churn Ghosenot yet reported I.L.R. 19 Cal. 412 [LQ/CalHC/1892/13] . In that case, as I understand thejudgment, the Division Bench held that, "A wakf or consecration may be forthe benefit of a body of beneficiaries, which must from its nature bepermanent, but such body may be made up of different classes which may enjoythe income in shares or one after the other, and some of which may from theirnature be of only temporary duration; but if there is included in the entirebody of beneficiaries some class which from its nature cannot fail, the wakf isvalid, and the property inalienable from the date of the wakf ordedication."

262. We were unable to reconcile the principles laid down inthese two cases, and we thought, and I think still, that the present case mustbe decided in accordance with one or other of those principles, and that theonly course open to us was to refer the matter to the decision of a Full Bench.We accordingly referred to this Bench the question whether the disposition ofthe grantors property made by the deed of the 4th of Aughran 1281 was a validwakf of the property dealt with by the deed,

263. The reference was afterwards amended by us at thesuggestion of some of the Judges of this Bench by adding the words, "wealso refer the decision of the Special Appeal to the Full Bench," and thisBench is now called upon to answer the question referred to it by the DivisionBench and to dispose of the appeal.

264. The Mahomedan law-books which have been principallyrelied on in the argument are the Hedaya, which was written about 1196, and wastranslated by Mr. Hamilton at the request of Warren Hastings, and the FatawaAlamgiri which was commenced in 1656 by order of the Emperor Arungzeb, andparts of which were translated into English by Mr. Baillie, and form the bookknown as Baillies Digest. A description of these two books and of their valueas authorities will be found in the Introduction to Morleys Digest, pages 267and 289. The subject of wakf is dealt with in Book 15 of the Hedaya, Volume II,page 334, Hamiltons Translation, and Book IX, Chapters 1, 2, 3, 4, 5 and 6 ofMr. Baillies work. If we were called upon to decide the question as to whichthe two Division Benches of this Court have differed, upon what we find in theMahomedan books alone, I think it would be very difficult to arrive at aconclusion, as there are passages in the books which may be cited in support ofeither view; but this part of the law has been the subject of many judicialdecisions in our own Court, and is, I think, concluded by the judgment of theJudicial Committee in the case of Mahomed Ahsanulla Chowdhry v. Amarchand KunduI.L.R. 17 Cal. 498 :I. L.R. 17 IndAp 28. In that case the deed is not set outin full in the report, but Lord Hobhouse in delivering the judgment of theCommittee describes it as follows:

At the outset of the deed the grantor adverts to his age andhis coming death, and says : I hereby appropriate and dedicate asfisabillilah wakf in the manner provided in the paragraphs mentionedbelow--the properties now in question and other property there described--fordefraying the expenses of the brick-built musjid of my grandfather, Jorip MahomedChowdhry, at my own family dwelling-house in the village of Paragulpore, and ofthe two madrassas at my own ancestral homestead, and my lodging-house in thetown of Chittagong and sadir warid (persons coming and going), and I pray toGod that He may in his mercy accept and preserve the same for ever for beingapplied to those purposes.

The paragraphs mentioned below are 13 in number.

Paragraph 1 appoints the grantors three sons to bemutwallis of the wakf properties in a gradation of rank, and it contains somevary elaborate instructions respecting the management of the property.

Paragraphs runs as follows;--

The mutwalli after payment of the proper expenses of themosaref and the necessary costs of collections of the zamindari and thesalaries of mookhtars and other servants and the expenses of litigation and thelike, and all other charges which may be incurred on the occurrence of anyperil or emergency, out of all kinds of income and profits of the endowedproperties, according to the long-standing practice, shall take from theresidue his own monthly allowance, pay over the allowance due to the naibmutwalli and naib-ul-maniab and my daughters as specified in the schedule, andcontinue to perform the stated religious works according to custom. He shall,having regard to the provisions contained in the first paragraph, keep his eyeto the legitimate objects of the musaref, and not commit extravagance and wasteor practise fraud in connection therewith. The balance that may be left aftermeeting the above-mentioned expenses shall be kept in a proper, that is to say,a safe place under the supervision and management of all the three persons.

The schedule provides Rs. 100 per month for the firstmutwallis, Rs. 90 for the second, Rs. 80 for the third, and Rs. 30 for thedaughters.

Paragraph 3 provides for the succession of mutwallis in caseof retirement or death. It is very inartificially expressed, and in somecontingencies might be difficult to apply. But for its bearing on theconstruction of the deed, it is sufficient for their Lordships to say that intheir judgment it was meant by its framer to provide for a perpetual successionof some of the male members of his family as mutwallis, to be appointed eitherby existing mutwallis, or by a Committee, or by an officer of Government.

Paragraph 1 provides for the addition to the wakf ofsurpluses occurring under paragraph 2.

Paragraph 5 declares that the persons getting monthlyallowances shall have no power to assign or charge them, and that creditorsshall have no claim against them.

Paragraph 7 declares that if the mutwallis have sonsexceeding three in number, for those who are not mutwallis, the mutwallis shallfix a monthly allowance. Those persons are to live on their own earnings in professions,trades or service; but when any one becomes a mutwalli, he is to bring into thewakf all the property he has got.

Paragraph 8 provides that if any one dies leaving no sons,his wife and daughter shall receive allowances. It then continues--It shall becompetent to the mutwallis, having regard to the income and expenditure of thewakf properties, to proportionately increase or decrease these allowances aswell as their own salaries and those of the other salaried persons, and no oneshall be able to raise any objections to the same.

265. The Committee held that the disposition made by such adeed was not a bond fide dedication and did not render the propertyinalienable, as its real object was not a charitable one, but was to makearrangements for the aggrandisement of the family and to make the propertyinalienable, and it being established that a settlement for these purposes isnot valid as a wakf according to Mahomedan law, it must follow that the wakifsfamily cannot themselves be the primary object of the settlement, as, if itwere, the natural effect and object of such a settlement would be to keep theestate in the family and so to provide for the maintenance and aggrandisementof the family, and on the authority of this case I think that it must now beheld to be settled law that a wakf or consecration must be in the firstinstance for the benefit of a body which from its nature cannot fail, i.e., forthe public or for some class of the public, and that though the consecrationmay be subject to a condition by which the usufruct of the consecrated estateis reserved partially and/or temporarily for the benefit of particularindividuals, such conditions or reservation must not be of such a character asto render the grant for the benefit of the permanent body inoperative orillusory. I do not, however, think it necessary in the present case to expressany opinion whether a condition that the whole income of the consecrated estateshould be paid to the members of a particular family, so long as any member ofit remained in existence, would have the effect of rendering the grant for thebenefit of the permanent body inoperative or illusory. This is the questionupon which their Lordships of the Privy Council declined to decide; it is one ofgreat importance, and upon which Mr. Justice Ameer Ali informs me many titlesin India depend. A perusal of the Mahomedan books which I have mentioned hascreated in my mind the impression that at the time when they were written suchdispositions were treated as valid, and I think that at the present time theweight of authority, as far as the decisions of the Courts established by theEnglish Government are concerned, is in favour of their validity, and as it hasbeen argued on behalf of the plaintiffs that their view is supported by thecurrent of authority, I think it well to see what the decisions on thisquestion have been, though in the result I do not propose to express anyopinion upon it.

266. In the month of March 1838 the case of Doe d. Jaun Beebeev. Abdollah Barber Fulton, 345 was decided by Sir E. RYAN, C.J., and Grant, J.,after consultation with the Mahomedan Law officers; the material parts of thedeed in that case were as follows:

First.-- Whereas the aforesaid lands subject to rent are situatedin the Town of Calcutta, I will appropriate as much of the produce thereof asis required for my own use unto the said purpose, after defraying the revenueand taxes thereof, and the remainder to hereditable and charitable purposes andmy several relatives, that is, my grandson and granddaughter anddaughter-in-law and daughters son and daughters daughter, who are nowreceiving maintenance, living together united in meals, shall continue toreceive the same in like manner, and the power of increasing or decreasing thenumber of incumbents according to the increase or decrease in the produce willremain with me, and the repairs of the mosque and salary of the Mowuzz in theKhattab and other expenses connected therewith, in the seasons of the RamasanMabareke and the Eed, shall be defrayed from the produce, and the person who ishereafter appointed mutwalli will enjoy the same powers as I myself possess.

Second.--I will continue mutwalli as long as I live, and onmy decease my daughters son Abdollah, son of Shaikh Joomun, inhabitant ofCalcutta, will become mutwalli; after the said Abdollah, one from among myrelations who is the most fit and possesses integrity, temperance, intelligenceand respectability, and appears most deserving.

Third.--After my decease, neither my heirs nor the mutwalliwill have the smallest right to sell or give away or transfer theabove-mentioned lands in any manner; whatsoever part thereof is expended inhereditable and benevolent purposes, shall be disbursed under my own controland direction.

267. The Court held that the appropriation was valid and theproperty inalienable. In the case of Fatma Bibi v. The Advocate-General ofBombay I.L.R. 6 Bom. 42, Mr. Justice West held that a deed, the materialportion of which is as follows, constituted the property dealt with by it wakfand inalienable:

1. Upon trust during the lifetime of the plaintiff, to paythe rents and profits of the said premises to the plaintiff for her sole andseparate use, without power of anticipation.

2. Upon trust after the death of the plaintiff, to pay therents and profits of the said premises to such one or more exclusively of theothers or other of the children or grandchildren or other descendants of theplaintiff, at such age or time or respective ages or times if more than one, insuch shares and with such future and executory or other trusts for the benefitof the said children or grandchildren or other descendants, or some or one ofthem, with such provisions for their maintenance and education either at thediscretion of the trustees or trustee for the time being of the said indenture,or of any other person or persons, and upon such condition with suchrestrictions and in such manner as the plaintiff should by deed or millappoint, and, in default of any such direction or appointment, and so far as nosuch direction or appointment should extend, upon trust to pay the said rentsand profits to and amongst the children or grandchildren and other descendantsof the plaintiff for and during the term of their natural lives or the life ofany of them, in such shares and proportions and in such manner for theirmaintenance or education, or otherwise as the said trustees or trustee for thetime being should think fit. Provided always, and it was by the said indentureagreed and declared, that its object was to make such a settlement of the saidpremises that the rents and profits thereof should alone be divisible amongstthe children, grandchildren and other descendants of the plaintiff for ever.

3. In the event of there being no children, grandchildren orother descendants of the plaintiff, or, there being such, in the event of suchchild or other descendants dying without leaving any child or children, upontrust to stand possessed of the said premises and of the rents and profitsthereof in trust for the said Mahomed Ali bin Mahomed Ameen Rogay and his heirsto be devoted by them to charitable uses according to the law of Mahomedans,either in paying the expenses of poor and indigent pilgrims going to Mecca,establishing charitable institutions, in donations to and building mosques, inpayment of the funeral expenses (or marriage expenses) of poor people, insinking wells or constructing tanks, or in such other manner as the saidMahomed Ali bin Mahomed Ameen Rogay, his heirs, executors or assigns shouldthink fit.

268. In the case of Amrutlal Kalidas v. Shaik Hussein I.L.R.11 Bom. 492 Mr. Justice Farran held that a deed the material portions of whichare as follows constituted the property wakf and inalienable:

The third defendant Shumsudin in his written statementadmitted the mortgage to the plaintiff. He, however, alleged that by a wakfnamaor deed of endowment, dated 17th May 1871, Miya Bundu (the father of the threedefendants) gave the property in question, together with three otherproperties, to his heirs and descendants for religious and charitable purposes,and declared that the office of mutwalli should be held by his wife Asha Bibiand the second defendant, with power to delegate the said office to whomsoeverthey should choose : and he further declared that after deducting all outlaysin respect of the said properties, the said mutwallis should divide the annualincome thereof into four regular shares, and make over one of such shares to eachof the three sons and their respective descendants for their expenses, and outof the remaining share pay half thereof to his widow Asha Bibi, and the otherhalf to his sister Shaban Bibi; and it was by the said wakfnama furtherdeclared that, if none of the heirs of the settlor should survive, the incomeof the whole of the property should be distributed among Mahomedan fakirs andindigent people : and further, that the said properties should not be sold ormortgaged by any one; and that if any one should seek to do so, then the claimshould be null and void.

269. In the case of Mahomed Hamidulla Khan v. Lotful HuqI.L.R. 6 Cal. 744 : 8 I.L.R. 164 Mr. Justice Morris and Mr. Justice Tottenhamheld that a deed of which the material portions are as follows did not create avalid wakf, and that the property was alienable:

I have assigned eight annas of the above-mentioned endowedproperties for the mosque built by me, and the expenses thereof. Out of theremaining eight annas, I have made wakf of four annas in favour of MussumatJamila Khatun alias Dhun Bibi, daughter of my daughter, and her descendants, asalso her descendants descendants so long as they may continue to haveoffspring; and when they no longer exist, then in favour of the poor and needy.I have made wakf of the remaining four annas in favour of my daughter BibiBudrunnessa and her descendants, as also her descendants descendants how lowsoever, and when they no longer exist, then in favour of the poor and needy. ** * After payment of the Government revenue and the collection charges, etc.,and after deduction of the mutwallis towliat right from the proceeds of theabove-mentioned endowed properties, the surplus whatever it may be, shall bedivided as follows: i.e., four annas thereof shall be given to Jamila Khatunalias Dhun Bibi, and four annas thereof to Budrunnessa Bibi, inasmuch as fourannas share has been endowed in favour of each of the said ladies, etc.

Golam Sharuff appointed his wife Nosima Bibi as the firstmutwali : on her death, the mutwallis were to be Dhun Bibi and BudrunnessaBibi, the first defendant, both of whom will get the towliat right in two equalshares. One of the male descendants of each of these two Mussumats, so long assuch descendants may continue to have offspring, shall be appointed as mutwalliof the endowed properties, and each of the two mutwallis so appointed shall getthe towliat right in two equal shares.

270. There are many expressions to be found in the variouscases on this subject, which indicate that, of late years at all events, theopinion of many of the Judges has been that only such dispositions of propertyas would come within the meaning of charitable dispositions in the ordinaryEnglish meaning of the words, would constitute valid wakf, but I believe thefour cases I have cited are the only ones in the books in which the question isdecided whether a reservation of the income of the consecrated estate for thebenefit of a family so long as it existed would render the grant for a charitablepurpose inoperative and illusory; and inasmuch as in three out of these fourcases it was held that the dedication was valid, notwithstanding thereservation, it seems to me that at the present time the weight of authority isin favour of that view.

271. It now remains to consider whether the consecration inthe present case was for the benefit of a body which from its nature cannotfail, and if it were, whether the reservations out of the grant for its benefitare of such a character as to render the grant itself inoperative or illusory.I think that the disposition of the wakf property which the grantor intended toeffect by this deed was not for the benefit of the poor of Dacca, which is thepermanent body mentioned in the deed, but was merely for the aggrandisement ofhis own family and to render the property inalienable. I think that hisintention as shown by the deed was that the sum of about Rs. 75 only should beexpended in charity--of about Rs. 400 in the maintenance of the family, andthat the remainder should be accumulated with the object of creating a greatestate, and if this view of the meaning of the deed is correct, it is manifestthat its object could not have been to benefit the poor. It is said that themeaning of the clause which gives the mutwallis power to spend whatever theymight think fit for the benefit to the grantors soul is in effect a power tospend the whole income, after deducting the Rs. 400, upon the poor, but readingthe deed as a whole, I cannot think that such was the grantors meaning. Ithink his intention was to create a great family estate, and I do not thinksuch a purpose is one for which a valid wakf can be created within the doctrinelaid down by the Judicial Committee of the Privy Council. My answer to the firstquestion referred to this Bench is that the disposition of the grantorsproperty made by the deed of the 4th Aughran 1281 was not a valid wakf of theproperty dealt with by the deed, and as that is, in my opinion, the onlyquestion in these appeals, I think that the appeals should be dismissed and thecross-objections allowed with costs in all Courts.

272. According to the opinion of the majority of the Judges,the result will be that the appeals will be dismissed with costs and thecross-objection will also be dismissed, that is, the order of the DistrictJudge relating to the charge of Rs. 75 a year on the property of Bikani Miawill be maintained with costs in proportion.

1 For the value and authority of this work, see MorleysDigest, Introduction, p. cclviii. I quote from Captain Matthews Translation,Vol. I. p. 453 (1823)

2 "He [Akam] had a house close to Safa. This was thehouse dwelt in by the Prophet, peace and safety be unto him, at the time of thepromulgation of Islam, and it was in this house that he asked people to embraceIslam. A large number of people embraced Islam in this house, of whom OmarIbn-ul-Khattab was one, and the house was therefore called the house of Islam.Arkam dedicated the said house to his child [meaning children], and the deed ofwakf was as follows:

In the name of God the most Merciful. This relates to howArkam disposed of the usufruct of his property which lies close to Safa, thatis to say, he has consecrated it in charity to his child [meaning children],together with the place where it lies, viz., its environs, so that it mayneither be sold nor inherited.

"This was witnessed by Hisham, son of Aas, and by theslave of Hisham, son of Aas. This house all along continued to be a permanentsadakah (a thing given in charity), his descendants, living in it, letting itout on hire, and they alone appropriating its proceeds. No one raised anyobjection."

(3) A Distinguished Kazi of Irak who flourished just afterAbu Ysuf; see Morleys Digest, introduction, page cclxv.

(4) A celebrated Kani of Irak recognized as a greatauthority in this country.

5 Mowkoofa, past participle of wakf; Mr. Baillie translatesthis word as "settled" but I prefer to follow the original, as theword "settled" is mis-leading.

.

Shuk Lal Poddar and Ors. vs. Bikani Mia (01.08.1892 - CALHC)