1. This is an appeal from a decree of the Subordinate Judge of Jaunpur in favour of the respondent for recovery of her share according to Muhammadan law in the properties left by her father and her mother. The defendant appellant is her elder brother. The facts out of which this case arose are as follows:
2. Syed Muhammad Kaim Ali, father of the parties, and Musammat Aliyat-un-nissa Bibi, their mother, executed on March 9th, 1881, an instrument called a waqf-namah, the nature and effect of which will be considered further on. The mother died on April 19th, 1881, leaving her surviving as her heirs her husband, her two sons and four daughters. Her husband survived till February 9th, 1895, when he died leaving the same heirs, except one daughter, Musammat Asma, who pre-deceased him. On the death of Syed Kaim Ali, his elder son, the appellant, took possession as mutawalli of all the properties mentioned in the waqf-namah and of other small properties not included in it. The present suit instituted on February 14th, 1896, is one of several (sic) against him by his younger brother, by his sisters, and by a purchaser from the husband of the deceased sister to recover the shares in that property to which the Muhammadan law entitles them. In her plaint the plaintiff in this suit, Musammat Rasulan, denied that the waqf-namah was a valid deed of endowment, and described it as 'a deed of arrangement which he (Syed Kaim Ali) had executed to preserve his reputation and dignity to prevent a partition of the property among the persons entitled, and to reserve to himself his personal interest.' The plaint further alleges that during the life time of the settlors 'there was no indication of any real charitable endowment,' These contentions are explained in detail in the 5th and 6th paragraphs of the plaint. The defendant in reply set up the waqf-namah as a bar be the suit. He also pleaded that the suit for a share in Musammat Aliyat-un-nissa's property was barred by limitation, she having died more than twelve years before the suit, and also that before such a suit could be maintained the waqf-namah must be formally set aside. He also raised a plea of estoppel,
3. The Subordinate Judge gave the plaintiff a decree, holding that no valid and legal waqf of the entire corpus of the property had been executed so as to prevent its being inherited-by the heirs according to their legal shares. Hence this appeal. Several pleas were taken in the written memorandum of appeal. At the hearing the only matters contended for were that the waqf-namah was a good and effectual endowment of the property mentioned in it, and that a suit to recover a share of the property which had been of Musammat Aliyat-un-nissa in her lifetime was barred by the limitation rule contained in Article 144 of the second schedule to the Limitation Act. The plea that Section 91 of the Limitation Act barred the suit was expressly abandoned at the hearing by the appellant's learned Counsel, and it was also stated for the appellant that no question of estoppel was pressed in the appeal. There was also a plea as to the movable property, but that matter, though not expressly abandoned, was but feebly pressed. There is really nothing in it, the evidence being quite worthless. We overrule it.
4. I take up first the principal question, namely, is the document on which the defendant relies a good and valid waqf-namah? It will be necessary to set out in some detail the objects and provisions of that instrument. It commences with an invocation of God, and then sets out the names of the waqifs or settlors. The object aimed at is next declared in the clearest and most unequivocal language. The settlors, after reciting that they are cousins as well as husband and wife, and that they are advanced in age, proceed as follows:--'It is absolutely necessary in order to secure the love of each individual among friends in this world and to earn merit in the next world that sufficient provision be made for the thorough management of the entire property and of the imlaks belonging to the executants and the income and the profits therefrom (which, taken as a whole, form a small estate), so that the property itself and the principal wealth of the estate may always be preserved from all manner of partition, division, transfer, and succession, and the management thereof in whole and in part should remain for ever in the hands of one person, whereby (our) name and memory and the pomp and dignity of the estate may continue.' Now these words cannot be taken to have any meaning other than that the intention of the settlors was to establish a perpetuity, so that their estate should not be divided among their heirs but should always remain unimpaired. But Syed Kaim Ali being a practising vakil of some reputation, probably knew that that object could not be effected under the ordinary law. This is frankly admitted in the next sentence which runs as follows:--'Whereas the attainment of the above object is impossible except by a waqf as directed by the Muhammadan law, we the executants, of our free will and (sic) without coercion or pique, and while in a sound state of body and mind, execute this deed of waqf or endowment as follows.' Then comes a detail of the property belonging to the two waqifs, from which it appears that the great bulk of it belonged to the wife and very little to the husband. Next we come to the endowment clause in paragraph i, which provides:--'Out of the entire imlaks and property mentioned above we, both the executants, make waqf of the whole of the immovable property owned by us the executants specified in Clauses 1 and 2 of the first paragraph of this document--in favour of our respective selves and after the death of one of us the executants, in favour of the surviving executant alone and thereafter in favour of our descendants generation after generation, so long as they exist, and in favour of the servants and dependents of the riasat aforesaid, in favour of the poor, the beggars, of the needy, for ever in the manner detailed below.' This paragraph ends with an intimation that the settlors' direction as to the appointment of a mutawalli and as to the manner in which the disbursements of the income of the 'waqf' are to be made will be found recorded further on, evidently referring to the words ' in the manner detailed below' of the preceding sentence.
5. The next paragraph 5 provides in Clause (a) that the executants shall remain in possession of the endowed property during their joint lives 'simply as persons in whose favour a waqf or endowment is made, and appropriate in every way the income and profits thereof.' The effect of this provision is that though the settlors' purport to divest themselves of their proprietary character, they nevertheless put all the ' income and profits' of the waqf property into their own pockets, to be used at their own will and pleasure. Clause (b) of the same paragraph is important. In it the female executant, Musammat Aliyat-un-nissa, after singing her husband's praises at great length and reciting that she has remitted her dower-debt to him, goes on to provide that in addition to being a person in whose favour the endowment is made, the husband shall also be the 'mutawali of the property, the entire management in every respect being in his hands according to his choice and pleasure' The lady then goes on to provide that the profits remaining after the disbursements have been provided for shall during her lifetime 'be appropriated by both of us, the executants, according to the discretion of the said mutawalli. If he survive me, he will continue to appropriate the entire income and profits from the whole of the property aforementioned, without the interference of any person in the way he thinks proper as long as he lives.' The effect of this provision is that on the death of his wife, her children who by law would be entitled to three quarters of her property are entirely excluded, and the whole of her property goes to the husband to be appropriated by him and used by him at his own uncontrolled discretion. Clause (c) of the same paragraph provides that during their joint lives the names of both the settlors are to be used in litigation as long as the mutawalli wishes, and sets forth the name which is to be given to the estate.
6. Clause (d) of this paragraph empowers the husband as mutawalli to appoint a successor in office and to fix his remuneration with a provision restricting that office to a lineal descendant of Musammat Aliyat-un-nissa, and the next clause provides for the appointment of future mutawallis. In the next Clause (f) the lady carefully provides for her own interests in case if she should survive her husband. In that event it is provided that one of the sons shall act as mutawalli, but shall hand over to his mother the entire income and profits from the waqf estate, to be appropriated by her and to be disbursed under her orders. The following Clause (g) is unimportant.
7. So far this instrument deals with what is to happen during the lifetime of the waqifs and of the survivor of them, it is noteworthy that, though under paragraph 5 (a) the settlors profess to hold the property in future as trustees of an endowment, there is not the slightest change made in their position. They (and especially Kaim Ali, the husband), remain in complete uncontrolled possession of the endowed property without any obligation on them to devote one rupee to religious or charitable purposes, or even to continue their usual contribution to such objects. They do not even deprive themselves of the power of selling or otherwise alienating any portion of the property, and had they thought fit to sell the whole and put the proceeds in their pockets it is difficult to see how they could have been prevented. In short, the first five paragraphs of this document leave the husband and wife absolute uncontrolled masters of the so-called endowment to deal with it as they please. They are not called on to exercise any self-denial, and, in the language of their Lordships of the Privy Council in the case of Abul Fata Mahomed Ishaq v. Russomoy Dhur Chowdhry (1894) L.R. 22 I.A. 87, they take back with one hand what they appear to put away with the other. There is no dedication of the property to charitable or to religious uses. The only dedication is in favour of the settlors and their descendants generation after generation so long as they exist; and in favour of an undefined class called the ' servants and dependents of the estate' and 'in favour of the poor, the beggars, and the needy for ever.' Strictly construed these words amount to an immediate settlement of the property on all classes of the beneficiaries simultaneously in the manner and to the extent subsequently declared. But if it were intended by the settlors that the whole estate should devolve on 'the poor, the beggars, and the needy,' that event could not happen till after the failure of all descendants of the settlors' two sons and four daughters, and till after the failure of the 'servants and dependents' of the estate. There being nothing to indicate that by 'servants and dependents' were meant only those in existence at the date of the waqf, this class, a varying uncertain class, changing from time to time, would effectually exclude the last class 'the poor, the beggars and the needy.' The deed, moreover, as to this last class does not provide for the poor of any particular locality, e.g., Sarai Kheta, where the settlors lived, thus leaving it uncertain who were the persons whom the settlors intended to benefit. And especially it is to be borne in mind that Clause 4, the so-called endowment clause, provided that the benefits of the waqf were to be enjoyed by the beneficiary 'in the manner detailed below.' I have already shown what that manner was to be during the joint and several lives of the settlors. I now turn to the provisions to be observed after their death. First of all the mutawalli is directed to pay annuities amounting in all to Rs. 2,400 to the six children of the settlors. The annuitants were to have a power of appointment among their descendants, and in the absence of such appointment the annuities were to descend to their heirs according to the rules of Muhammadan law for ever. The most extensive and arbitrary powers are given to the mutawalli in the matter of granting and of withholding these annuities at his discretion and any one of the beneficiaries who, like the plaintiff-respondent, in this appeal, repudiated the waqf or questioned the authority of the mutawalli, was ipso facto to forfeit his annuity. It was next provided that a sum of Rs. 1,100 per annum should be spent for purposes which the learned Counsel for the appellant earnestly contended were religious and charitable uses. Several of the objects enumerated, however, would not be considered religious or charitable objects within the meaning of the rule laid down by the Madras High Court in the case of Kaleloola Sahib v. Naseer-ud-deen Sahib (1894) I.L.R. 18 Mad., 201.
8. The mutawalli is directed to devote a sura of Rs. 600 per annum to the support of a hospital at Sarai Kheta which the female settlor had established in March 1875, and which had since then been regularly supported by her and her husband. Then Rs. 20 per annum are provided for bringing water from the well Zamzam at Mecca, and a list is given of the persons who are to obtain spiritual benefit from this act. Rs. 36 per annum is to be spent in having the Koran recited for the benefit of the souls of the father and mother of the female settlor, the person who does the recitation being bound to transfer to those persons the spiritual benefit he had acquired from the recitation. Another reciter of the Koran was to be appointed on similar pay, and he was to transfer the spiritual benefit of his recitations to the benefit of the souls of the settlors. The mutawalli is then directed to devote Rs. 150 per annum to charitable doles to be given to the poor every day at the principal gate. This is a continuance of the practice previously observed by the settlors. Then provision is made for the repair of the mosque at an annual cost of Rs. 50 and of the tomb of the settlor's ancestors at Sarai Kheta at a cost of Rs, 24. These matters again only perpetuate an existing custom. The next two clauses provide for the continuance of the existing customs of holding a meeting at an annual cost of Rs. 40 to commemorate the birth of the Apostle and of distributing at a cost of Rs. 60 in the Muharram food and sharbat for the benefit of the souls of the two imams, Finally, provision is made for the appointment of a person to teach the Koran and the principles of jurisprudence at Sarai Kheta. With one small exception which will be noticed further on these are all the provisions made for religious or charitable purposes, and the amount devoted to those purposes is certainly less than Rs. 1,000 per annum. The net income of the estate is between Rs. 9,000 and Rs. 10,000 per annum. But although charitable and religious objects do not beuefit by quite Rs. 1,000, we find the waqfs providing for the pomp and dignity of the family by allotting Rs. 1,200 per annum for ringing the ball and maintaining the guard attached to the estate, A subsequent paragraph provides for the occupation of the houses on the estate and for the mutwalli's powers therein, while paragraph 8 deprives the beneficiaries of all power of alienation of their annuities and puts the latter out of the power of the law by declaring that they shall not be saleable in execution of a decree against the annuitant. From paragraphs 9 and 10 it would seem that the settlors were apprehensive that the beneficiaries had no power of enforcing payment of their annuities, and so all the descendants of the settlors and the well-conducted and learned Muhammadans of the Hanafi sect are prayed for God's sake ' to see that the payments be made even by having recourse to the help of the authorities. Paragraph 11 refers to the appointment of mutawallis after the death of the settlors and 'provides for a perpetual succession of some of the male members of the family as mutawallis.
9. The last paragraph, which it is necessary to notice, is No. 13. This provides that when any one of the beneficiaries is appointed mutawalli, his annuity is to lapse and fall into the income of the endowment, that such mutawalli is to hold possession of the estate and make collections, and that after paying the Government revenue and the annuities and other expenses, he is to take the surplus (minus one-tenth) for himself, his family and his dependents. The one-tenth is to accumulatetill it reaches the sum of Rs. 1,000, when it is to be invested in immoveable property or in some profitable business, and the annual income of that property or business is to be spent by the mutawalli in relieving the poor.
10. It (sic) far the appellant that this last mentioned provision, compled with those set forth 'in an earlier portion of this judgment, amount to a dedication of a substantial portion of the income of the estate to charitable purposes, and that therefore the waqf is good.
11. I am unable to concur in that contention. The first question to be considered is what was the real object of the settlors when they executed the waqf-namah. Did they intend to dedicate the property to religious and charitable uses with a charge for the support of the members of the family engrafted on it, or did they use the form of a waqf as a veil, under cover of which they attempted to do that which the law would not permit them to do openly? As to that matter the settlors leave no room for doubt. They state in the frankest manner that their object was to preserve the estate from diminution by partition, transfer or the like, and to keep it always in the hands of one person so that thereby their name and memory,' and the pomp and dignity of the estate may continue.' Not one word is said as to any desire to benefit the poor, as to any intention to constitute them the ultimate beneficiaries. The only object avowed is the preservation of the estate intact that its pomp and dignity may continue. The settlors admit that they cannot attain that object except by the device of a waqf ' as directed by the Muhammadan law,' and then proceed to settle the estate on themselves and on their descendants so long as any exist, on the servants and dependents of the estate, and on the poor and needy. As to the last mentioned class there is nothing within the four corners of the waqf-namah to indicate that the settlors intended that that class should obtain any benefit beyond that given by paragraphs 4 and 13. I cannot but consider a document containing such a settlement to be but the merest simulation of an endowment for charitable or religious purposes. Its object is not to benefit the poor, but to preserve the name and estate of the settlors. The gift to the poor, if, as a fact, there is any dedication or gift over to them, which I very much doubt, most probably would not take effect for hundreds of years, and even then it would probably be void for uncertainty, there being nothing to show who were the poor, the beggars, and the needy intended to be benefited. In my opinion the settlors did not suppose that any gift or ultimate dedication of the estate to charitable or religious uses was necessary to validate a waqf. I cannot but think that they were under the impression that a family settlement entailing the family property in perpetuity on its members and their descendants was a good waqf under Muhammadan law, a view which found some support a few years ago, but which has now been disapproved of by their Lordships of the Privy Council.
12. As to the charitable gifts mentioned in paragraphs 6 and 13 of the waqf-namah, I think the opinion of the Court below is right. No specified part of the waqf property has been charged with their payment. The second clause of the 6th paragraph does no more than direct the mutawalli to make certain payments 'out of the profits of the waqf,' and the same may be said as to the 13th paragraph with reference to the one-tenth of the surplus. No means are provided for compelling the mutawalli to make any of those payments. In fact the present mutawalli as to that matter is in the same position as his father Syed Kaim Ali was. The latter of his own free will subscribed to the charitable objects to which he directed his son to continue the same amount of subscriptions, and they are no more than a devout and wealthy Muhammadan gentleman might find it becoming to spend in that way. This case by no conceivable argument be brought within the rule of which their Lordships of the Privy Council approved in Sheik Mahomed Ahsanullah Chowdhry v. Amarchand Kundu (1889) L.R. 17 I.A. 37. In fact it is to some extent the converse of the case therein cited with approval (sic) case I am asked to hold that a mere charge for some charitable purposes ((sic) probably could not be enforced), on the profits of an estate strictly settledon the family of the settlors in perpetuity and not dedicated in substance to charitable uses is sufficient to constitute a good and valid waqf. To that contention I cannot accede. I fully concur in the opinion of the Subordinate Judge that 'the little expenditure on religion and charity provided by the deed was no more than a charge on the property; it did not create a legal and valid waqf of the entire corpus of the property so as to prevent it being inherited by the heirs according to their legal shares.' I would therefore affirm the decision of the lower Court that this is not a valid waqf.
13. There is one other point remaining for decision in this appeal. The plaintiff-respondent claims her legal share in the property left by her mother Musammat-Aliyat-un- nissa, which under the terms of the waqf-namah, was handed over to the husband Syed Kaim Ali, as mutawalli, and which remained in his possession up to the day of his death. The defendant-appellant pleads that that claim is barred by limitation, as he alleges that Kaim Ali, and the defendant after him, held adverse possession of that property from the lady's death in 1881 up to date of suit in 1896. Appellant relies on Article 144 of the second schedule to the Limitation Act No. XV of 1877. This matter is not really one of much importance to this plaintiff-respondent. On the finding that the waqf is bad there can be no doubt that Musammat Aliyat-un-nissa's property formed in one way or another part of the property left by Syed Kaim Ali at his death. The plaintiff therefore, even assuming that property was the absolute property of Kaim Ali to which he had acquired a prescriptive title, would, as daughter of Kaim Ali, admittedly be entitled to her legal share in it by Muhammadan law.
14. In my opinion the respondent has failed to prove any adverse possession in Syed Kaim Ali. It is admitted for the appellant that no question of estoppel arises. But it is contended that the waqf being bad, Syed Kaim Ali held possession of his wife's estate after her death as a trespasser, and so by adverse possession had acquired a prescriptive title to it before his death in 1895. Now there can be no doubt that his possession of that estate in the interval between the execution of the waqf-namah and his wife's death was permissive, and he professed to take it, not in any personal right, but as mutawalli under the terms of the waqf-namah, and for the purposes set forth in that instrument. I fail to see any change in the nature of his possession from that time up to his death. By the terms of the waqf-namah on the abandonment of their proprietary rights by his wife and himself he took possession as mutawalli or trustee to carry out the terms of the waqf-namah. He did not at any time profess to have, nor did he set up any personal title in himself. The fact that the waqf is not valid in law does not, in my opinion make any difference in the nature of his possession. That fact did not clothe him with any adverse title to possession, but left him as trustee for the rightful owners of the property, namely, his wife and her heirs after her. In all his acts in the administration of the waqf he professed to act as trustee or mutawalli of the endowed property. In my opinion the waqf having failed he held the property as trustee for those entitled, under a legal obligation to hand it over to them on demand. Had such a demand been made and refused there would be good ground for holding his subsequent possession was adverse to the true heirs. Nothing of the kind is alleged; there is not an atom of evidence to show any change in the nature of Syed Kaim Ali' s possession from the day when he assumed possession of his own and his wife's property as (sic) 1881 down to his death in 1895. I am therefore of opinion that (sic) on this point fails and that the decree of the Subordinate Judge is right. I would dismiss this appeal with costs.
15. I concur.