Basil Scott, Kt., C.J.
1. This suit was originally filed by Haji Sa', to Sidick and his son Mahomed to avoid a deed poll, dated the 12th of February 1904, executed by them and duly registered. The deed poll purports to be published by the executing parties and recites that Haji Saboo Sidick therein called the founder is absolutely entitled to the premises described in the 1st and 2nd Schedule, although those described in the 1st Schedule had been conveyed by various conveyances to the plaintiff Mahomed as nominee of Haji Saboo Sidick, the consideration moneys mentioned in the conveyances to have been paid by the plaintiff Mahomed having been paid out of the moneys of Haji Saboo. It then recites that the founder was desirous of settling all the premises in Wakf and it is declared that the founder and the trustees for the time being shall stand seized of all the premises upon the trusts thereinafter mentioned, the founder during his lifetime being the sole trustee and Mutawali to be succeeded in those offices by Jimbabai his wife and the plaintiff Mahomed upon trust to accumulate one-third of the income and invest the same from time to time in properties to be added to the trust fund and out of the remaining two-thirds to apply 500 rupees per mensem in certain specified charities according to the discretion of the trustees and Mutawalis and to apply the balance of the two-thirds in the maintenance of, the education and advancement of the trustees and Mutawalis for the time being and of the descendants of the founder and the wives of all the male descendants of the founder, and upon failure of all male and female descendants of the founder through his sons and daughters and the wives of his male descendants to hold the trust premises and accumulate them in trust for any charity recognized or allowed by the Mahomedan law and especially the building endowments and maintenance of hospitals for Mahomedan schools and Masjids and the relief of poor Cutchi Memons and any other kind of charity. And it declares that the trustees and Mutawalis for the time being should have all such rights and powers and be subject to all such liabilities and disabilities as should be allowed and provided by the Sunni Mahomedan law prevailing in British India in relation to Mutawalis and trustees of public charitable trusts and so far as the same should not extend by any other law in force in British India as might apply to the case.
2. The recital was inaccurate in respect of the premises described in the 2nd Schedule for they also had previous to the execution of the deed poll been transferred into the name of Mahomed.
3. At the date of the deed poll the properties with which it purported to deal were in the possession and under the management of the firm of Haji Saboo Sidick in which the executing parties were the sole partners. They had been purchased by the firm many years previously, and in 1899, after the death of one of the original partners, Haji Hasan Sidick, had been transferred into the name of Mahomed.
4. The prayer of the plaint is that the settled properties may be declared to belong absolutely to Mahomed and that the deed poll may be declared to be void and contrary to law.
5. If the deed is ab initio void, no other question will arise as both the settlors in their life-time and their representatives since their death have agreed that there should be a declaration in favour of Mahomed's ownership.
6. The first question is, whether the deed is void by reason of any legal defect. If the deed is not void wholly or in part, the question will be, whether it can be avoided by Mahomed by reason of proof of antecedent or contemporaneous circumstances such as coercion or misrepresentation entitling him to set it aside. If it is partly void, or can be avoided in part, there, will be a resulting trust pro tantoby agreement of the settlors and their representatives in favour of Mahomed.
7. As regards the first question, the plaint states that no possession was ever given or taken of the properties and no effect was ever given to the deed poll. That the properties have been managed as the property of the plaintiff Mahomed and the rents credited to him just as they were before the execution of the deed. The argument in support of this aspect of the case has been based on Mahomedan law, according to which, it is contended, the deed is void in that there was no transfer from the name of the ostensible owner to the name of the founder, who declared the trusts of which he was to be the first Mutawalli.
8. In British India the validity of Wakfs under' which the appropriator constitutes himself the first Mutawalli, has been repeatedly recognised, and where the dominion-over the property is with the Mutawalli, at the time of the appropriation, we are not aware that their validity has ever been challenged upon that ground where the appropriation has been acted upon. In the present case, there can be no question upon the evidence as to the dominion of the settlors over the properties in suit at the date of the deed poll. The de facto control was with Haji Saboo Sidick, the ostensible ownership by registered deed was with Mahomed. These two settlors, after executing the deed poll, proceeded to the registration office and caused it to be recorded there.
9. The point is dealt with in the Fatwai Alamgiri in a passage which is rendered by Baillie (p. 591) as follows : 'Moohummud, the son Alfuzl being asked respecting one who had made it a condition in constituting a Wakf that the governance of it should be for himself and children, answered, 'it is lawful, according to all.'' Moohummud, the son of Alfuzl was, according to Tarajun-ul-Hanafia, a famous jurist who died in 381 Hijri. In Doe Dem Jaun Beebee v. Abdoollah Barber (1838) Ful 345 it was expressly decided that it is lawful for the Wakif to become Mutawalli, and in Abul Fata v. Russomoy Dhur Chowdhry the settlors had constituted themselves Mutawallis but the Wakf was held invalid merely on the ground that there was no substantial gift to the poor. Again in Mnjibunnissa v. Abdul Rahim the donor had constituted himself the first Mutawalli but the validity of the Wakfnama was not challenged on that ground.
10. On behalf of the plaintiffs, however, reliance has been placed upon a decision of the Allahabad High Court in Muhammad Azizuddin v. The Legal Remembrancer ILR (1893) All. 321, in which it was held that the appropriator having retained exclusive proprietary possession after the execution of the Wakfnama, and never carried his recorded intentions into effect, having, it was said, destroyed the document, there was no valid or operative Wakf but an inchoate endowment only, from which he at once receded before he had put it out of his power to do so by divesting himself of the property.
11. It appears to us that upon this line of reasoning it would be impossible ever to hold an appropriator, who had constituted himself the first Mutawalli, to the terms of his Wakfnama.
12. We have not been referred to any Mahomedan law book in support of such a conclusion. The point does not seem to us to be dealt with in the passage from the Hedaya cited in that judgment, and we are not prepared to apply the decision of the Allahabad High Court to the facts of the present case.
13. In dealing with the argument that the settlor had never acted upon or given effect to his deed, we prefer to base our decision upon the principles to be found in the English Equity Reports, and we do so with the more confidence in that the j. deed poll declares that, in so far as the Sunni Mahomedan law V^ does not extend, the trustees shall be subject to all such liabilities, as are provided by any other law in force in British India which may apply to the case.
14. That the retention and disregard of the deed by the settlors cannot operate to defeat the claims of the beneficiaries under it, is established by various cases among which reference may be made to Re Way's Trust (1864) 2 D G.J. & S 365, Fletcher v. Fletcher (1856) 2 Jur. N.S. 854, Parnell v. Hinston (1844) 4 Hare. 67, and Jones v. Jones (1874) 23 W.R. 1.
15. In Re Way's Trusts, the question arose between the Attorney General, representing the ultimate trust for charity declared in a disregarded deed, and the representatives of the settlor. Knight Bruce L. J. said: 'The deed of 1852 must, in my judgment, be taken to have been duly and completely executed by Lady Cholmeley. There is no evidence before us that its execution was unfairly or improperly obtained, or that she executed it under any mistake, misapprehension or erroneous advice. In these circumstances the deed must be supported, although no notice of it was ever given to the trustees or to any other person. That the deed was retained by Lady Cholmeley and afterwards destroyed by her, does not, in my judgment, alter the case.' Turner L. J. said: ' According to the principle of the modern decisions, if the deed is duly executed, effect must be given to it, notwithstanding the retainer and the absence of notice. '
16. For these reasons, we are unable to hold that the deed is void on account of any legal defect or omission connected with its execution or subsequent history.
17. It is next contended that the deed is not enforceable at all events in part, inasmuch as it was designed to create a perpetual family settlement such as is contrary to public policy. We are of opinion that the trust of Rs. 500 per mensem for charitable purposes must be given effect to, but that its validity will not save or validate the subsequent provisions of the deed. The Wakfnama is very similar to that which came under the consideration of Mr. Justice Tyabji in Mahomed Hassan v. Mahomed Ibrahim (1903) 5 Bom. L.R. 624. In that case, according to the calculation of the learned Judge, the income was devoted as to one-twentieth to charity and as to nineteen-twentieths to members of the family. He said that, from whatever point of view he looked at it, the proportion of income for the charity was so small as compared with the proportion devoted to family purposes, that he could not, consistently with the decisions of the Privy Council, hold that there had been a substantial dedication entirely to charitable and religious purposes. He therefore took the Wakf as susbtantially consisting of two documents, one dealing with the certain proportion of the income in favour of the charity and the other devoting the rest of the income to family purposes. He accordingly declared the former to be valid and the latter void.
18. This was in accordance with the decision in Sheik Mahomed Ahsanulla Chowdhry v. Amarchand Kundu where the Privy Council affirmed the decision of the Calcutta High Court that a small part of the property had been well devoted to charity but that as to the bulk of it the settlement was, notwithstanding some expressions importing Wakf, in substance nothing but a family settlement in perpetuity and as such contrary to Mahomedan law. In the present case, between one-sixth and one-eighth of the income of the settled properties is devoted to immediate charitable trusts; the rest of the income is substantially settled for the support of the descendants of the settlor in perpetuity, and we are unable, having regard to the cases already cited and that of Mujibunnissa v. Abdul Rahim , to support the trusts in favour of the settlors descendants as part of a valid Wakf.
19. These conclusions do not, however, finally dispose of the case of Mahomed and his representatives, for the plaint states that Mahomed was informed by his father and his solicitor's managing clerk, when he was taken to the solicitor's office, to execute the deed, that a trust of his properties was made, whereby during his father's life-time he was to get a thousand rupees per mensem, and on his father's death he would be the sole owner again of all his property. The plaint also states that Mahomed was not aware of the contents of the deed when he signed it, that it was executed by him without any inde. pendent legal advice, and on the representations made to him as aforesaid, and at his father's bidding. Thus a case of misrepresentation and coercion is set up.
20. Now, it is to be observed that at the date of the deed poll, Mahomed was nearly twenty years of age, having attained majority in April 1902. The deed poll was the result of much consideration and consultation by the attorneys of the firm to which he belonged, which consideration had commenced at least as early as the beginning of 1903. The deed poll was attested by Messrs. Gulabchand and Dadachanji, solicitors of this Court, residing in Bombay, who were members of the firm by whom the deed poll was prepared. Owing to the death of Mahomed and his father Saboo Sidick, during the pendency of the suit, the case of misrepresentation and coercion is unsupported by their evidence. Their representatives have abstained from calling either Mr. Gulabchand or Mr. Dadachanji who could speak to the instructions upon which, and the circumstances under which, the deed poll was prepared and executed. The only evidence in support of this part of the case is that which has been given by the plaintiff's present solicitor, who deposes to certain statements made to him by Mahomed and Saboo Sidick in their own favour in the year when they had changed their minds and wanted to get rid of the deed poll. In this state of the evidence the plaintiffs' case of misrepresentation and coercion wholly fails, and we hold that Mahomed and his representatives cannot avoid the deed executed by him when of full age and upon the face of it perfectly regular.
21. Having regard to the agreement between the plaintiffs, it is not necessary to discuss the voluminous documentary evidence bearing upon the question of the real ownership of the property. But we may say that we are by no means prepared to acquiesce in the conclusion of the learned Judge that the properties really belonged to Mahomed.
22. We declare that, subject to setting apart a fund sufficient to produce 500 rupees per mensem applicable by trustees to be appointed under a scheme with the approval of the Advocate General for the benefit of charities of the nature specified in the earlier trusts of the deed poll, there is a resulting trust of the properties in favour of the representatives of Mahomed. The costs of all parties must be paid out of the income of the properties in suit except those of the Advocate General who did not support the trusts which have been held to be valid.