1. The plaintiff has filed the suit for a declaration that the deed of wakf executed by Mahomed Moosa Adenwalla on October 16, 1928, is void and inoperative and that defendants Nos. 1, 2 and 3, who are the present trustees under that deed, hold the properties, the subject-matter of the trust, as trustees for the heirs of the deceased other than Fatmabai and Ebrahim Haji Ahmed Moosa. The wakf which was executed by Haji Ahmed Moosa purports to be wakf-alal-aulad, and what I have to determine is whether it is a good wakf within the meaning of the Mussalman Wakf Validating Act of 1913. The settlor recites his desire of making a wakf-alal-aulad in respect of his two immoveable properties in order to provide himself and his children in the manner provided in the trust deed. He declares that he would be the first mutawalli or trustee under the deed arid then he gives directions as to how. the rents and profits of the two properties are to be distributed. He directs, the trustees first to pay the outgoings and then to pay the net balance of the income of the two properties to the settlor during his life for his absolute use; and then he directs that the trustee or mutawalli who is to come after him should, after his death, set apart twenty-five per cent, of the gross rents of the trust properties to meet expenses of heavy repairs and utilise the balance of the income in the following manner:-
(1) one-third share for charitable purposes according to the Mahomedan law which are mentioned specifically in the clauses that follow;
(2) one-eighth of the balance to his widow and one-half of the remaining balance to his son Abdul Karim Haji Ahmed and his descendants;
(3) one-fourth of the balance to his daughter Rabiabai; and
(4) the remaining one-fourth to his daughter Rahimabai and her descendants.
The settlor further provides that if there be no descendants of any of his said children, the share of the income should be utilised for the same charitable objects which are subsequently mentioned in the deed and to which reference was made when he set apart one-third share of the balance of his income.
2. Then in four clauses the settlor deals with what he considers to be charitable objects tinder the Mahomedan law for which the one-third share of the income has to be expended and for which purpose also the share of the income of any of the line of the descendants which might become extinguished should also be utilised. These four objects are: firstly, the marriage expenses of the persons mentioned in that clause; secondly, a sum of Rs. 200 to be paid every year each to not more than three persons belonging to the family of Moosa or Moosani, which was the family of the settlor, who might be poor and in need of money; thirdly, a sum of Rs. 300 to be spent amongst the Sayyeds and Fakirs every year in the month of Ramzan; and fourthly, a sum of Rs. 1,000 to Rs. 1,200 for feasting Cutchi Memons of his community on the day of his anniversary of his death.
3. A wakf-alal-aulad is a method whereby a Mulssalman can make provision for the maintenance and support of his family and descendants. Under ordinary law such a trust would be bad as offending against the law of perpetuity. It is not open to a person to tie up his property in perpetuity and give the income of it to his children and his descendants. But the law has made an exception in the case of Mussalmans, and that exception is to be found in the Mussalman Wakf Validating Act (IV of 1913). That Act makes it lawful for a Mussalman to create a wakf for the maintenance and support wholly or partially of his family, children: or descendants, provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Mahomedan law as a religious, pious or charitable purpose of a permanent character. And Section 4 of that Act goes on to state that no such wakf shall be deemed to be invalid merely because the benefit reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the wakf. Therefore a Mussalman can tie up his property in perpetuity for the maintenance and support of his family, children or descendants provided he makes a provision that the ultimate benefit goes to a charitable object recognised by the Mahomedan law as charitable and the charitable purpose is of a permanent nature. It is open to him to postpone benefit being conferred upon charity till the extinction of all his family and his descendants.
4. Now in the trust before me one thing is perfectly patent that the settlor wanted specific charities which he has mentioned in the four clauses in the trust to benefit in the event of the share of any line of his descendants or children becoming extinguished. It is clear that the first of these so-called charitable objects, the payment of marriage expenses, is not charity according to the Mahomedan law. Those payments have already been made by the trustees, and the question in that sense becomes academic. With regard to the second object, payment of Rs. 200 every year to a person belonging to the family of the, settlor who may be poor and in need of money, payment to poor relatives is really good charity under the Mahomedan law; but as Mr. Taraporewalla has pointed out, when we are dealing with the Mussalman Wakf Validating Act, we must consider a particular charity benefiting on the extinction of the family of the settlor and, therefore, it is necessary to consider whether the charity selected by the settlor which is ultimately to be benefited is or is not of a permanent nature. It is not possible to say with any certainty that there would be any members of the family of the settlor in existence when the descendants of the settlor became extinct; and even if such persons were to be in existence, whether necessarily they would be poor and in need of money. The third object is the payment of Rs. 300 every year to Sayyeds and Fakirs. It may be said that payment of money to Fakirs -not indeed professional beggars but treating that expression to mean the 'poor' -would be a good charitable gift; but as far as the Sayyeds are concerned, I am not sure whether payment to Sayyeds is a good charitable gift according to the Mahomedan law. Sayyeds are members of the Prophet's family; and even assuming that that was & good charitable object, it would be impossible to ascertain after this period of time:as to who were genuinely the members of the Prophet's family and to benefit that -particular class of people. Under the trust deed the obligation is cast upon the mutairalli to spend a sum of Rs. 300 upon both these objects the Sayyeds and the Fakirs, and as one of the objects is clearly non-charitable, the whole provision is bad. As regards the fourth object, namely, spending about Rs. 1,000 to Rs. 1,200 for feasting the Cutchi Memons every year on the anniversary of the death of the settlor, I am clearly of opinion that that is not a good charitable object according to Mahomedan law. It should be noted that there is no suggestion that any prayers are to be said in this feast or any religious ceremony to be performed. All that the settlor says is that a feast is to be held where a certain amount has to be spent every year,
5. Therefore the settlor was anxious to benefit these particular charities and that is clear also from the fact that even before the extinction of his family or descendants he has provided that a portion of the income should be spent on these objects immediately after his death. It is impossible to infer that any general or dominant charitable intention is shown by the settlor in making provision under this particular deed. The matter becomes even more clear when one remembers that the net income of the two properties-the subject-matter of the trust-is about Rs. 16,000 a year and the charitable provisions, assuming that they were all charitable, would hardly exhaust a very small proportion of the income of these properties. The part of the income set apart for being expended on these charitable objects after the death of the settlor is in itself sufficient to defray all the expenses and, therefore, in the event of the family .and the descendants becoming extinct and the income becoming available for charity it would be impossible to spend that income on the specific objects enumerated by the settlor. Therefore, in my opinion, the whole of the trust property is not given to charity as an ultimate bequest, and unless that is done, the most important provision of the Mussalman Wakf Validating Act of 1913 is not satisfied.
6. The trust deed may also be looked at from another point of view. It is open to a settlor when he belongs to the Hanafi sect to reserve for his own maintenance and support during his lifetime the income of the trust property. In this case what the settlor has done is that he has reserved for himself during his life for his absolute use the whole income of the trust property. The income is not reserved for his maintenance and support but for his absolute use. The Legislature advisedly did not permit a Hanafi Mussalman to reserve the income of the trust property during his life for his own benefit or for such use as he may put it to. It was only when he reserved that income for his maintenance and support that he was permitted to do so without offending against the provisions of the Act. What the settlor has done in this deed is that he has reserved to himself a life interest in the income of the trust property. Now a reservation of a life interest in the income of a trust property is a very different thing from securing to himself for his own maintenance and support the income of the trust property. The difference in law between these two provisions is clear and of considerable importance. If what he had reserved to himself was for his own maintenance, that would not be transferable as property under the-Transfer of Property Act nor could it be attachable under the provisions of the Civil Procedure Code. Whereas if he had reserved for himself a life interest, that particular provision would not attract to itself the provisions of Section 6 of the Transfer of Property Act and Section 60 of the Civil Procedure Code with regard to non-transferability and nonliability to attachment contained in the provisions of the two sections. What is even more significant is that the trust deed nowhere indicates that the settlor is making, this provision for the maintenance and support of his family, children or descendants. Now that again is important because it is only when the trust is for the maintenance and support of the family, children and descendants of the settlor that it comes within the ambit of the Mussalman Wakf Validating Act of 1913. As far as one can see, on the provisions of this trust deed, the trust is created not for the maintenance and support of his family, children and descendants but in order to give them income in the manner specified in the trust deed for their absolute use. Therefore, taking everything into consideration, in my opinion the wakf deed is not a valid and proper wakf-alal-aulad to which the Act of 1913 applies, and as every wakf created by a Mussalman which offends against the rules of perpetuity is bad unless-it is protected by that Act, I must hold that this particular deed is void and inoperative.
7. But there is one provision of the deed to which I must refer. As I have pointed out, the settlor provides in this deed that after his death the trustees should spend a certain proportion of the income of the property on certain charitable objects which he has Specified and to which I have referred. That particular provision in the deed would-not amount to a provision for his descendants with an ultimate gift to charity. It is really a gift to charity/in proesenti through the medium of a trust. What the settlor says is this: ' I make the gift to charity. I appoint trustees. I hand over the subject of the gift to trustees. But I make a stipulation with the trustees that they should not spend the money on charity so long as I am alive and give the income to me'. As far as I can see, there is nothing in Mahomedan law to prevent a Mussalman from creating a trust of that nature. Of course the charitable objects must be such as are recognised as good under Mahomedan law.
8. I have already held that the provisions with regard to feasting the Cutchi Memons and the payment of Rs. 300 among the Sayyeds and the Fakirs are not charitable objects as understood by the Mahomedan law. But as far as the provision with regard to the payment of Rs. 200 every year to not more than three persons belonging to the family of the settlor who may be poor and in need of money is a perfectly good-charitable object. Therefore there is no reason why the trustees should not carry out this particular provision in the trust deed although the deed itself should be void, as a wakf-alal-aulad and to the extent that it ties up property in perpetuity.
9. I would, therefore, direct the trustees that they must set apart sufficient amount out of the sale proceeds of the trust properties if it be necessary to sell those properties as would fetch a sum of Rs. 600 every year so as to carry out this particular charitable object. With regard; to the rest of the trust estate, as I have held that the wakf is void, they are merely trustees for the heirs of the settlor and they must hand over' the balance of the trust estate to these heirs.
10. With regard to the heirs, all the heirs are before me except two who are Fatmabaf and Ebrahim Haji Ahmed Moosa. There were three administration suits filed to administer the estate of the settlor and a consolidated consent decree was taken in these three suits and the consent decree which has been put in shows that as far as these two hens are concerned, they have released all their right, title and interest in the estate of the settlor and also their interest under this wakf deed. Therefore neither Fatmabai nor Ebrahim Haji Ahmed Moosa has any interest in these trust properties.
11. Parties want to take directions from me with regard to the disposal of the trust properties and other matters and they want to do that after they have consulted the Advocate General.
12. I therefore stand this suit over for that purpose. Suit adjourned to July 9, 1945.
13. Costs of all parties to come out of the trust estate.