1. Wahiduddin Ahmad Khan, having been married to M. Shamsunnissa Begum, contracted a second marriage with the widow of his elder brother. This appears to have grievously upset the first wife, and she commenced a suit for dower and ultimately, in 1912, obtained a decree for upwards of Rupees 20,000 against the present plaintiff. That decree was kept alive, and certain sums of money were extracted from the plaintiff, and in June 1922, there was a valid outstanding decree for Rs. 21,827-14-0. On the 19th June 1922, the sister of the plaintiff died, and he thereupon became entitled to a certain share (SIC) her property, which was of the value of some Rs. 30,000 and consisted of certain villages in two parganas.
2. On the very day after her death he was minded to make an endowment, and he did in fact, on the 20th June 1922, attempt to create an endowment by which after reserving the sum of Rs. 64 to be given annually to certain specified charitable objects, the balance of the income was to be applied for his own benefit and for the benefit of his wife and family, his male descendants in perpetuity; and on failure of male descendants to female descendants in perpetuity, down to the day of judgment. Nobody reading that document could have any doubt whatever that it was designed to defeat and delay his wife in her execution and in the recovery of the amount which had been decreed against him. It was obviously a method chosen, not because the plaintiff was moved by any religious feeling, but to put the property which ho had inherited from his Sister, beyond the reach of anybody who had a just claim against him. The plaintiff is a Sunni Muhammadan and by the Act of 1913 he stood personally in a very favoured condition. By Section 3 of that Act, a follower of the Musalman faith, who conforms to the tenets and doctrines of the Hanafi School of Musalman Law, may create a wakf in which he may first of all proscribe that the income shall be devoted to his own maintenance and support during his lifetime, and he may create a succession of mutawallis from among the members of his own family and may declare that the whole of the income be devoted to the support of himself and his own family; but he must couple with it a provision that the ultimate benefit be reserved for such purposes as are recognized by Musalman Law as religious, pious or charitable purposes of a permanent character or for the poor and needy.
3. The document of the 20th June 1922 commences with a number of pious utterances, which sound somewhat strangely in the mouth of a man who was contemplating a fraud upon his wife. He however prescribed provisions, which were in conformity with she clauses of the Validating Act of 1913 and, as the draft originally stood, there was an expressed gift-over to the poor and needy, who were to have derived advantage from this endowment on the total failure of the heirs. That is to say the draftsman of this instrument left it in a manner in conformity, with the provisions of the 1913 Act; but apparently, when the plaintiff saw the provisions that the poor and needy would derive advantage from this wakf in the end, he got those words struck out. Mr. Iqbal Ahmad on looking at the draft called our attention to it: and at the end of the document there is a note in terms stating that the words in the second and third lines of the third leaf have been struck out, and that note is signed by the plaintiff himself. We are therefore of opinion that this document fails to conform with Section 3 of Act VI of 1913 in that there is no provision for the ultimate benefit of the poor or for any purpose recognized by the Musalman Law as a religious, pious or charitable purpose of a permanent character. There is no doubt one can imply such an intention in a document of this character; but as soon as one finds the very words which were intended to create benefit struck out, that destroys, of course, the possibility of making any implication and shows definitely what was in the mind of the creator of this alleged endowment.
4. In these circumstances, and on this ground that the document was not a valid endowment under Muhammadan Law, we affirm the judgment of the learned Subordinate Judge and dismiss this appeal with costs and fees on the higher scale.