1. This is a suit praying for the administration of the estate of one Moulvi Abdul Kader Jitekar who died at Bombay intestate on the 12th day of February 1905, leaving him surviving two sons Mahomed Abdulla, the first plaintiff and Abdul Rehman, the first defendant, a widow Ayeshabibi, the second plaintiff and a daughter Mariambibi, the second defendant. Apart from moveabies the deceased at the time of his death Was in possession of four immoveable properties detailed in Part II of Schedule A to the plaint and had also been held entitled to a share in two immoveable properties detailed in Part III of the same schedule. By a Wakfnama dated the 16th May 1900 the deceased purported to settle the said four immoveable properties upon certain trusts and the principal point in dispute in this suit is whether this deed is valid and binding upon the parties.
2. In effect the settlor conveys the properties to himself as Mutawalli then to the first defendant then to grand-sons in succession and so on to the eldest male lineal descendant upon trust to manage the properties and distribute the income according to the terms of the deed amongst the settlor's descendants and on absolute failure of the line of the several lineal descendants of the settlor in trust for charitable purposes in connection with the Sunni community of Mahomedans due regard being also paid and assistance given to any relatives by marriage of any descendant of the settlor who may be in the opinion of the Mutawalli deserving of assistance.
3. There can be no doubt that if this deed can be brought within the decision of the Privy Council in Abul Fata Mahomed Ishak v. Rasamaya Dhur Chowdhri ILR (1894) Cal. 619 it must be set aside. But it has been argued by counsel for the first defendant that the parties in that case and in all the previous cases therein mentioned were Hanafis governed by Hanafi law, that the parties to this suit were Shafeis and that the Shafei law of Wakf is quite different from the Hanafi law of Wakf. To this the plaintiff replied that in Mahomed Hassan v. Mahomed Ibrahim (1903) 5 Bom. L.R. 624 although the parties were Shafeis, the decision of the Privy Council in Abul Fatd Mahomed Ishak v. Rasamaya Dhur Chowdhri was followed. In rejoinder the first defendant says that in Mahomed Hassan v. Mahomed Ibrahim the point was never taken.
4. In Mahommed v. Zahiroodin (1902) 5 Bom. L.R. 8 it has been decided that cases to which Shafeis are parties must be governed by Shafei law and therefore the Shafei law of Wakf must be considered. The whole law of Wakf is dealt with fully by Ameer Ali in his book on Mahomedan Law, Vol. I, Chapter VI. At page 203 he says:-''The Shiahs and the Shafeis differ from the Hanafis on one point. According to the recognised and accepted Hanafi doctrine the Wakifs may reserve the entire produce of the Wakf property for his benefit during his lifetime-may in fact constitute himself the primary beneficiary of the trust. According to the Shiahs and Shafeis, the Wakif can if he is the Mutawalli receive the allowance reserved for the trustee. Mahomed agrees with the Shiahs and Shafeis in holding that the Wakif cannot reserve for himself the entire produce of the Wakf during his lifetime. But as regards the lawfulness of Wakf in favour of one's descendants there is absolutely no difference of opinion. All the schools and all the priests recognise the validity of such Wakf. The Radd-ul-Muhtar is most explicit on this point.' At page 204 'as pointed out in the Radd-ul-Muhtar there is absolutely no question about the lawfulness of Wakfs in favour of one's children. Whatever difference of opinion exists among the several schools or between Abu Yusuf and Mahomed, relates to the reservation by the Wakif of the income of the Wakf for himself during his life time.' At page 209 ' The Majmaa-ul-Anhar written towards the close of the 18th century thus sums up the result of the authorities:-A Wakf in favour of one's self is valid according to Abu Yusuf and on this is the Fatwa (in other words this is the law). A Wakf in favour of one's children and nasl with the ultimate benefit for the poor in case of the failure of the Wakif's Nasl is valid by consensus. If the poor are not mentioned but the word Sadakah is used with the term Wakf it is valid both according to Abu Yusuf and Mahomed and on the extinction of the Wakif's descendants it would be for the poor. Even if the poor are not mentioned and the word Sadakah is not used the Wakf is valid according to Abu Yusuf and its produce on the extinction of the Wakif's Nasl or posterity will be spent on the poor and on this is the Fatwa.'
5. The passage from the Minhaj-ut-Talibin, a leading Shafei authority which appears at Chapter XVI of Ameer Ali's book without comment and the passage from the Fathul Muin a translation of which has been provided by the first defendant, have been relied on by him, but I find nothing in these works to disturb the consensus referred to by Ameer Ali at page 209. If there had been anything to support the first defendant's contention it is impossible to explain how it was not discussed either in Ameer Ali's exhaustive criticism of the Privy Council's decision in Abdul Fata's case or in the judgment in Mdhomed Hasan's case.
6. I must hold, therefore, that there is no difference of opinion between the Shafeis and Hanafis as to the validity of a gift to the settlor's descendants generation to generation. Only the disciples of Abu Hanifa differed, Mahomed considered there must be an ultimate expressed trust in favour of a charitable purpose, Abu Yusuf considered it was implied without it being expressed. As amongst Hanafis it appears that the authority of Abu Yusuf is superior to that of Mahomed the result is that a trust in favour of descendants would be considered valid in any event; and see Ameer Ali at page 243. 'In the Hedaya the subject of Wakfs in favour of children is not discussed, there being no difference of opinion on the point between Abu Yusuf and Mahomed.' From the note at the bottom of page 436 of Wilson on Mahomedan Law it appears the author had come to the conclusion that there was practically no difference of opinion between the Shafeis and Hanafis on the question of the validity of a gift of this nature. The Privy Council however have laid down certain rules by which such deeds have to be construed and these have been lucidly summarized by the late Tyabji J. in Mahomed Hassan v. Mahomed Ibrahim 1903) 5 Bom. L.R. 624. It follows that if according to both the Shafei and Hanafi jurists settlements in favour of descendants with the ultimate benefit for the poor in the case of failure of descendants expressed or implied are recognized but the Privy Council has held such settlements by Hanafis invalid, the same reasoning must be applied to similar settlements by Shafeis. It is impossible to come to any other conclusion than that this deed is invalid because it in effect creates a perpetuity in favour of the settlor's descendants under the protection of a gift for charitable purposes which is palpably illusory. But the question has been raised whether the plaintiff and second defendant have not acquiesced in the deed and are not thereby now estopped from disputing it.
7. On the evidence before me I should find it difficult to decide as a matter of fact that there had been acquiescence.
8. There is no doubt that the settlor's family disapproved of the execution of the Wakfnama.
9. The settlor gave copies of it to each of his family but his nephew Abdul Latif Jitekar has deposed that soon after the settlor came to him and complained that his family would not accept payment under the Wakf and requested his assistance. Abdul Latif thereupon came to the house and persuaded the parties to accept payment. Thereafter quarterly accounts were rendered to the beneficiaries under the terms of the Wakf and their signatures taken. The plaintiff says that allowances were made in respect of payments due under the first two quarterly accounts and that separate receipts were given, that under the advice of the late Mr. Sayani he signed with these words added 'future rights reserved' that these words were not added to his signature to the first two quarterly accounts because he merely acknowledged the receipt of the amount and not of any payment, that he signed the subsequent accounts with these words added up till the date of his father's death and afterwards there was no necessity to add them. The separate receipts are not forthcoming, though there can be little doubt that Abdul Latiffs story that they were taken at any rate when the first payment was made, is correct. The plaintiff appears to have received his mother's and sister's shares as well and defrayed out of them the household expenses. The plea of acquiescence accordingly fails but even if there had been acquiescence I do not see how the parties would now be estopped from contesting the deed. I attach little importance therefore to the fact that the wife and the son-in-law on behalf of his daughter (who was up to and after the filing of the plaint considered a lunatic) signed the quarterly accounts without any reservation. Certainly not under Section 115 of the Evidence Act which is purely a rule of evidence. It may be inequitable for a Wakif's family to accept benefit under the Wakf and after his death dispute the validity of the Wakf but no authority has been cited to show that if the deed were invalid ab initio, it would not be set aside on that ground.
10. Costs of all parties of the suit to come out of the estate except as regards the first defendant's costs of issues 7 and 8 which he must pay himself.
11. Further costs and directions reserved, Advocate General's costs as between attorney and client.
12. If a plaintiff mikes the Advocate General a party defendant to a suit he must give the Advocate General notice that he appears as to his own risks as to costs.