1. This suit was filed by Bai Fatmabai widow of Ebrahim Hassam Mansur deceased against the first four defendants the executors of his will and the second four defendants as his sons and the 9th defendant his daughter and the 10th defendant the Advocate General of 'Bombay, by amendment inter alia to have Clauses 3 and 7 of his will dated the 9th of January 1905 construed by this Court and the shares of the said deceased's heirs ascertained and declared and further and other relief.
2. The said deceased was a Sunni governed by Hanafi as was admitted.
3. He died on the 11th February 1905, leaving him surviving the parties to the suit other than the Advocate General.
4. Clause 7 of his will which I first deal with runs as follows:-
7. As to whatever immoveable and moveable properties may remain after my death, after the expenses shall have been deducted and the compartment of the above mentioned shop shall have been sold, out of the same my said heirs are to divide and take, the moveable properties according to Mahomcdan law. And the immov-able properties are neither to be sold nor divided. But as those properties which carry income that is which can realize income, all my sons are to become unanimous and to endeavour to increase the incomethereof. And with regard to the income which may be realized every year out of the same my heirs are every year to keep Rs. 500, namely live hundred, credited to the 'Reserved Fund' account as on their own i.e.), on the joint account of all (of them); which moneys are to be used for repairing the said properties. Thereafter as to that income which may remain every year as balance, my said heirs are every year to divide and take the same according to Mahomedan law. If at any time, it should become necessary to sell one or more or all of the said immoveable properties, then all my sons are to become unanimous and sell (the same).
5. At the hearing before me it was not disputed that this clause is invalid according to the Mahomedan law, as it obviously is and I accordingly, as requested, held at the hearing that it was so; and accordingly I found on the issues 3, 6, 7 and 8 that the whole of Clause 7 was invalid and inoperative. I would refer to AbdulGafur v. Nizamudin in support of this finding.
6. I took time, however, to consider my decision as to Clause 3, which raises a question of Mahomedan law which is novel in Bombay, viz. whether shares in a limited Company can be the subject of wakf under the Mahomedan law.
7. Clause 3 runs as follows :-
Out of the whole of my immoveable and moveable properties I am the owner of a third share according to Mahomedan Law. I can dispose of the same according to my wish. Therefore, out of this my third share, I make a wakf (endowment of) 11 shares out of the shares of the Rangoon Surti Bada Bazaar Company Limited. As to the income which the said shares may yield every year, my heirs are unanimously to distribute the same in the name of God (i.e. in charity). And as to one or more persons belonging to my family or my maternal grandfather's house or who may be connected or related to me (i.e. who may be my) relations or kinsmen and who may be or become indigent or needy, to such person or persons also my heirs can give moneys out of this income.
8. It will be observed that the testator expressly makes a wakf of the said eleven shares, the income of which is to be distributed as in the said clause provided.
9. The question is whether such a wakf is valid according to Mahomedan law.
10. In Fatima Bibee v. Ariff (1881) 9 C.L.R. 66 Mr. Justice Wilson held that a wakf could not be created of shares in a limited liability Company and the shares in that case were shares in the same Company as in the present one. No doubt, as pointed out in Sir R. Wilson's Digest of Mahomedan Law, that case was not very elaborately argued. But it appears to me that the reasoning of the learned Judge is very strong. He says at page 74:-
For the present purpose I think the right of a shareholder in such Companies is a right to share in the form of dividends, in the profits of the business carried on by the Company. Property of this nature is modern in its origin and the old texts can only be applied by way of analogy. But there does not seem to me much difficulty in arriving at a conclusion. Land according to all the authorities may be appropriated. And the power has been, it is universally agreed, extended to certain other kinds of property, though the exact degree of the extension is a matter in difference among the authorities. But it is agreed that it does not apply to such things as perish in the using, under which head money appears to be included. And if money cannot be appropriated, it seems to me clear that the possibility of receiving money hereafter in the form of dividends cannot be. This first deed of wakf is therefore in my opinion invalid.
11. But the question was most elaborately argued in Kulsom Bibee v. Golam Hossein (1905) 10 C.W.N. 449. p. 486 and there the argument of Mr. Rahim (which prevailed with the Court) upon this point is very powerful and was adopted by Woodroffe J.
12. The same point came up before Mr. Justice Ormond in the Chief Court of Lower Burma, a certified copy of whose judgment dated the 13th March 1907 has been put in in this case. That learned Judge deals elaborately with this question, which here again related to the shares in the same Company as in the present case; and he also comes to the conclusion that a wakf of shares in a limited Company is invalid according to Maho-medan law.
13. Both Mr. Justice Woodroffe and Mr. Justice Ormond agree in saying that the propositions stated by Mr. Amir Ali in his book on Mahomedan law are founded on incorrect translations of certain original Arabic texts.
14. Sir Roland Wilson, in his Digest of Anglo-Mahomedan Law, the last edition of which was published in 1903. had not, of course, the decisions of Mr. Justice Woodroffe and Mr. Justice Ormond before him.
15. No doubt, in Abu Sayid v. Bakar Ali (ILR (1901) 24 All. 190 decided in 1901, the learned Judges dissented from Fatima Bibee v. Ariff (1881) 9 C.L. 66.
16. After the elaborate way in which the Calcutta and Burma Courts have treated this question, it; would be, I think, mere repetition for me to go over the same ground. The authorities and reasoning in both their judgments commend themselves to me. I therefore only propose shortly to state in addition to these cases how the matter strikes me.
17. In Abu Sayid v. Bakar Ali (1901) I.L.R. 24 All. 190 it is said: 'Under the Mahomedan law perpetuity is a necessary condition of a valid wakf'. The word 'wakf' literally means : standing, stopping, waiting, detaining, bequeathing for pious uses. See Richardson's Persian Dictionary. This definition obviously carries with it the idea of perpetuity.
18. In Baillie's Mahomedan Law, page 550, it is said: 'According to the two disciples, wakf is the detention of a thing in the implied ownership of Almighty God, in such a manner that its profits may revert to or be applied for the benefit of mankind and the appropriation is obligatory, so that the thing appropriated can neither be sold, nor given, nor inherited'.
19. In Hamilton's Hedaya, page 231, it is thus stated : ' According to the two disciples, wakf signifies the appropriation of a particular article, in such a manner as subjects it to the rules of divine property, whence the appropriator's right in it is extinguished and it becomes the property of God by the advantage of it resulting to his creatures. The two disciples, therefore, hold appropriation to be absolute; and, consequently, that it cannot be resumed, or disposed of by gift or sale; and that inheritance also does not obtain with respect to it'.
20. It is, I confess, difficult to sea how shares in a limited Company could under any circumstances be said to be in the implied ownership of Almighty God or subject to the rules of divine property when we have regard to what shares in a limited Company really are. Shares in a limited Company are particular sums of money (the documents of title relating to which are known as certificates) due by a limited Company to their shareholders, the transfers to whom are regulated by the Articles of Association governing the Company and are not subject to rules of divine property.
21. A considerable number of translations of texts were put in this case, but I do not propose to refer to them at length except to Ex. D, Shara-'I' U.-L.-Islam, where the commentary on the text says : 'And the want of validity of wakf of dain or debt is apparent because wakf requires substance to be detained and the profits thereof set free and this necessitates that the thing should have outward existence in the physical world, regarding which a man can say ' this is to be detained,' and a debt owing by another person is an indefinite thing which has no outward existence. Therefore its wakf prior to its being made into a specific substance is like wakf of what is not in existence.' Shares in limited Companies are debts due by the Companies to their share-holders.
22. Further, when we consider the provisions of the Indian Companies Memorandum of Association Act of 1895, whereunder a limited Company can alter its constitution as therein provided, it is difficult to attribute to a limited Company that permanence which it appears to me would be conveyed to the mind of every Mahomedan by the use of the word wakf in Mahotnedan law.
23. I, therefore, find on the remaining issues as follows :-
(1) Whether the wakf created in the will is valid. In the negative.
(2) Whether the heirs of the deceased have given their con-sent to the said will being made and whether such consent is necessary. It was admitted no such consent had been given. I find this in the negative.
(4) What is the true construction of Clause 3 of the will That no wakf was validly created thereby.
(5) Whether it was competent to the testator according to Mahomedan law to make a valid wakf of shares in a joint stock Company.
24. In the negative.
25. I pass a decree for the plaintiff. Postpone the further hearing till this day week on Mr. Talyarkhan saying that a special Com-missioner is to be appointed by the parties.