1. One difficulty occasioned by the form of the suit which was not apparently before the mind of the learned trying Judge is this : Touching the house which the deceased is alleged to have given to the Masjid the suit is in ejectment and therefore the persons, if any, in actual possession need to be joined as parties. This was not done. Without expressing any opinion as to whether this was a true and valid wakf, it is clear that in respect of this relief the claim fails. Neglecting some other difficulties which might be similarly occasioned and confining ourselves to what is substantially in controversy, there remain two principal points.
2. First of the wakf of Rs. 7,000. The plaintiffs' case is that this was not a valid wakf. But if it was, it was created by will or on the death-bed and in such case it could not extend to more than 1/3rd of the wakif's estate. We are very sensible of the care and ability with which the entire question has been examined by the learned Judge below. His judgment, though we find it unnecessary to deal fully with all its contents, is a very able and instructive contribution to the case-law on the subjects of which it treats. But for the purpose of disposing of this appeal it will be sufficient to confine our observations within a small compass. It is virtually admitted that apart from expressions to be found in the will itself there was no declaration of the wakf of Rs. 7,000 out of the testator's profits or shares in the partnership concern. Nor of course was there any actual delivery. Thus the questions are:-(1) Whether a wakf can be validly created by a purely mental act (2) Whether, if not, actual delivery is necessary (3) Whether the statement in the will is a good declaration, and, if so, whether it can be referred back to a prior mental resolve so as to bring the wakf into being from the date of the latter (4) Whether property of the kind which the will describes as constituting this wakf can properly and legally be so dedicated And, last, there is the most important practical question of all, (5) whether in fact the evidence proves that apart from the statement in the will, there had been any dedication of the Rs. 7,000 to the charity ?
3. It has been strenuously contended on behalf of the respondents that a more intention to set apart property for charitable purposes, followed by actual appropriation (as in the case of a definite sum of money, by applying the interest to the intended purpose), is quite sufficient to create a wakf. No authority as far as we know goes that length. The passages most strongly relied on by the respondents are taken out of Amir Ali's Text Book ; but even supposing this is good authority, we do not find the learned writer anywhere saying that a mere mental act, unaccompanied by any form of explanatory words, will do ; all that he says is that it is not necessary, while stating the object of the dedication, to say explicitly that it is 'wakf.' Some statement apparently there must be and this is quite consistent with the objectivity of archaic systems and the prominence given in them to ceremonial formula and illustrative acts or words-It may be difficult to discover any good reason why saying in the market place or in the presence of one or more hearers 'I sot apart Rs. 7,000 for the endowment of my new school and will henceforth apply the income to that purpose' even although the wakif should never in fact set apart the corpus or apply a penny of the income, does, while actually sotting apart the corpus and applying the income to the contemplated charity, because unaccompanied by a verbal statement, does not create a valid wakf. But in trying to administer branches of law which have come down to us from remote times and primitive societies it does not do to insist too much on a modern reason for every rule. We must, we feel, keep as close as we can to such authorities as are available for our guidance; and not one of these supports the proposition that a mental act although afterwards sufficiently expressed in conduct, will, unless clothed in appro priate words, create a wakf.
4. The respondents' next contention is that although at the time that the founder conceived the idea of the wakf, he did not verbally announce it, he did do so formally and sufficiently in his will. He there declares that he has given this sum to be the endowment of his school; and that is proof enough when taken with the fact that the school had been built and masters employed, of the practical reality of the mental dedication two years previously. There is a plain distinction between giving in charity and declaring that one has given in charity. And for the purpose of fixing the origin of the wakf if there was a wakf at all, the mere statement in a will that at some past date, the testator had set apart such and such funds for charitable objects, is of comparatively slight value. It might be otherwise were such a declaration accompanied by accounts showing exactly when sums began to be so expended. So supplemented, were it not for The legal objection that a wakf must be created by declaration, it might very well be argued that the facts proved by The accounts coupled with the declaration in the will proved well enough not only that the wakf had, but alsowhen it had, come into being. And this point is important in connection with the rule that a Avakf may if created during the lifetime of the wakif and otherwise than by will or on the death bed, exceed a third of the whole estate; whereas wakfs created on the deathbed or in a will are subject to the ordinary rule which limits a testator's powers of free disposition to 1/3rd of his whole estate. The main argument is that the declaration in the will can be antedated two years by reference to the testator's conduct and actual facts, i.e., the building and starting of the school, or the hiring of school premises and employment of masters; so as to supply the deficiency arising out of the wakif having, in the first instance, kept his charitable intention to himself and bring the wakf within the category of wakfs created during the life-time of the wakif. For, if that were so, then, the whole sum would go to the purpose of the wakf, whether or not it exceeded a third of the testator's whole estate. Implied in this, however, there is a second and subsidiary argument that whether the will will do to validate the wakf from the time the wakif conceived the intention, it certainly does in itself create the wakf. The objection to that from The respondent's point of view is that, if the wakf of Rs. 7,000 is hold to be created by the will, it is subject to the ordinary rule and along with any other charitable bequest similarly made in the will is liable to be cut down within The required limit 1/3rd of the estate. Wo find it impossible to accede to the first argument. We do not think that a mere statement in a will of some gift in the past can be referred back to the date still undetermined, when that gift is afterwards alleged to have been made, or that such a narrative statement can in any view be an adequate substitute for the oral declaration of dedication to God, which the Mahomedan Law appears to us imperatively to require, synchronously with the act of dedication itself.
5. Such a view would open the door to obvious and possibly dishonest evasions of the restriction imposed on the powers of testamentary disposition by Mahomedan Law.
6. We are unable to hold that a bare statement in a will that the testator has at a former time given away or set apart a portion of his property to a charity amounts to a testamentary devise. Reason is clearly against it and we think it would be extremely dangerous to countenance any such view.
7. In our opinion, where there has been no actual delivery, a reasonably clear declaration is necessary to create a valid wakf.
8. There is a difference of opinion between the two leading Mahomedan schools, led by Mahomed and Abu Yusuf, as to whether actual delivery in addition to declaration is also necessary. The Courts of India appear to have inclined now to one and now to the other opinion. In the present case there is no allegation that the 7,000 Rs. with which we are now concerned, was ever actually delivered. Nor indeed could it have been, since it appears to be the estimated yield of unascertained shares and profits in a partnership business. We do not therefore feel called upon to decide this vexed question. It might well be that, even in the absence of any proof of an express declaration, if the fund or property intended to be dedicated were actually delivered, such delivery might raise an irresistible presumption of the requisite declaration having been contemporaneously made. But, where we find that there was no declaration, this question could only have any importance where notwithstanding that initial defect, there was proof, or at any rate an allegation, of actual delivery. Here there is none. As to Avhether property of this kind can legitimately form the subject of a wakf, we need only say that moveables, in our opinion, may; and if moveables, there seems no sound reason in these days, to exclude from that category, funded moneys. It is not necessary, however, in the view we take of the whole matter, to express a considered opinion upon this point.
9. As to the evidence, the statement in the will might be relevant and strong evidence that the testator really had intended to devote a sum of 7,000 Rs. to the endowment of the school. But we do not think that without some corroboration it is conclusive that he did so. The corroboration consists in the fact that a school was started and carried on with fluctuating success. But there is nothing to show what expenses were incurred. It is impossible to say from this record that a specific sum of 7,000 Rs. ever was given up to the school, or that the wakif ever renounced absolutely all his beneficial interest therein. Strictly speaking, this part of the case is inseparably connected with the consideration of the questions whether there ever had been a declaration, or a delivery. And the evidence is, in our opinion, clearly insufficient to support either of those allegations. For these reasons, Ave are of opinion that, there was no valid wakf of the 7,000 Rs. We must add that had our inclination been the other way, we should have felt obliged to reserve judgment till the minor grandson had been properly represented. As the case was presented to us, his counsel was engaged to uphold the wakf. But that was plainly opposed to the minor's interest as also to that of the widow. For, had it been a valid wakf, it would have reduced 'pro tanto the estate to be shared. In that estate the plaintiffs appear to be entitled to two-thirds, the Avidow to an eighth and Ave think, as at present advised, though Ave need not go further into this, the minor to the residue.
10. There remains then in dispute only the sum of 3,000 Rs. bequeathed in the will to the same school. We are unable to discover any ground for declaring such a bequest to be invalid, provided that it does not exceed one-third of the Avhole estate. The argument that it fails because the fund it was intended to supplement fails, does not need serious consideration.
11. The result is that we think the decree of the Court below must be amended. The plaintiffs, as far as appears on this record, are entitled to two-thirds of the estate after deducting the house and 3,000 Rs. Always provided that such deductions do not exceed one-third of the Avhole. Costs to come out of the estate.