Gokul Prasad and Kanhaiya Lal, JJ.
1. The question for consideration in this appeal is whether a certain deed of waqf,' purporting to have, been executed by Musammat Ishrat Begam on the 10th of August, 1910, was valid and enforceable. The lady died on the 30th of August, 1910. The allegation of the plaintiff was that the deed of waqf was obtained from the lady at a time when she was unwell and unable to form an independent judgment. In. fact, it is suggested, that she was not then in her proper senses and did not understand what she was doing. The courts below found that the lady understood what she was doing, but the deed of waqf was invalid inasmuch as there was no real intention to make a dedication for religious or charitable purposes.
2. The dead of waqf provides that the lady shall be the first mulawalli of the property dedicated and that she shall have, power to apply the income of the property dedicated to her own use as long as she was alive, and, if there was a surplus, to apply the same to the purposes specified in any manner she liked. It further states that she shall also have the power to sell or mortgage the property during her life-time. It then goes on to say that after her death her sister, Musammat Hashmat Begam, and two other persons specified therein, who are the present defendants appellants, shall act as mutawallis and apply the income to the said purposes. The purposes specified were the maintenance of an Arabic school for teaching theology and the expenses connected with a mosque situated in her native village. The trial court held that the deed of waqf had been acted upon after the death of the lady; but the lower appellate court found that only a part of the income was applied by her successors in office to charitable purposes.
3. It is obvious from the terms of the deed that the plain intention of the executant was to retain an absolute power over the property said to have been dedicated. The essential requisite of a valid waqf is a permanent dedication of any property by the donor substantially for religious and charitable purposes. The dedicator should completely divest himself of the ownership of the appropriated property from the time the dedication takes effect. There is no such thing here. The dedicator retained for herself a full power to sell and transfer the property during her life-time. Such a condition derogates from the nature of the grant, and as pointed out in Fatma Bibi v. Advocate-General of Bombay (1881) I.L.R. 6 Bom. 42 it is inconsistent with a valid waqf, which must be certain as to the property appropriated and, at the same time, unconditional, and not subject to an option. There might be a reservation of the annual profits of the property for the benefit of the donor for her life; but a provision empowering the donor to sell and to appropriate the proceeds thereof for his or her own benefit, would make the settlement invalid. ' According to the two disciples,' says Baillie, ' waqf 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 appropriate 1 can neither be sold, nor given, nor inherited.' Baillie's Muhammadan Law, Vol. I, p. 558. In Naim-ul-Haq v. Muhammad Subhan-ullah (1) one of the necessary constituents of a valid waqf was described to be a substantial and effective dedication of the property to religious or charitable uses; and a condition whereby the donor reserved to himself a power of spending the profits of the property at his own discretion and an exclusive right to transfer the corpus at any time he liked, was considered to be inconsistent with a valid dedication. The waqf in the present instance cannot, therefore, be upheld.
4. It is argued on, behalf of the defendants appellants that the document can, at all events, be treated as a testamentary disposition, postponing the dedication of the property in dispute till the death of the testator. The document in (sic) however, purports to create a waqf in praesenti without giving all the powers that a mutawlli ought to possess to carry out the purposes of the trust. It does not purport to make a dedication from the date of the death of the lady and it cannot, therefore, be regarded as a testamentary disposition to take effect after her death. The courts below have rightly construed the document and we agree with the view which they have taken. No other pleas have been pressed.
5. The appeal fails and is dismissed with costs.