1. This is a second appeal by the plaintiff whose suit has been dismissed by the two lower Courts. The plaintiff claims to be entitled to an annuity of Rs. 75 per annum under a deed of wakf executed on 13th January 1927 by Mt. Nabihan, the maternal grandmother of the plaintiff. The two defendants are maternal grandsons of Mt. Nabihan. The mother of the plaintiff and the mother of the defendants were sisters and daughters of Mt. Nabihan. On the same date on which the deed of wakf was executed Mt. Nabihan also executed a deed of gift in favour of the two defendants. Mt. Nabihan was a Shia. The Courts below have found that the deed of wakf is not valid. The plaint does not state under what law the wakfnama was valid, but the trial Court assumed that the plaintiff claimed under Act 6 of 1913, the Mussalman Wakf Validating Act, and held that it was not valid under that Act chiefly because there was no ultimate deed of gift for religious, pious or charitable purposes. The plaintiff appealed and the first ground of appeal stated that the wakf in question was valid and binding according to the provisions of Mahomedan law observed by the Shias and Act 6 of 1913. The lower Appellate Court set out:
The following is the point for determination in this appeal: (1) Is the wakf deed in suit invalid under the Mussalman Wakf Validating Act?
and the Court held that it was not valid under that Act as there was no ultimate provision for religious or charitable purposes. No other point was mentioned by the judgment of the Court below. In second appeal grounds 1 to 3 urged that this finding of the Courts below is wrong. Now the Mussalman Wakf Validating Act, Act 6 of 1913, contains in Section 3 the following proviso:
Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character.
2. Now the deed has not been translated but learned Counsel for the appellant is not able to show any portion of this deed which would comply with the above proviso. The deed therefore cannot be valid under Act 6 of 1913. In grounds of appeals Nos. 4 and 5 it was urged that apart from the provisions of Act 6 of 1913 it is open to a wakif to provide for debts or other liabilities and that Section 3 of the Act is only an enabling Section and does not abrogate the rule of Mahomedan law. On these grounds learned Counsel for the appellant extended his argument and claimed that quite apart from the provisions of Act 6 of 1913 this wakf although created after that Act could be valid if it complied with the provisions of Mahomedan law. On the other hand it is contended by Dr. Waliullah for the respondent that any wakf executed after this Act if it contains provisions for the maintenance of the family of the wakif must comply with the terms of the Act. No ruling has been shown on this point and it is a fact that the wording of the Act does not state that wakfs which do not comply with the Act are invalid. The Act in specific terms states that wakfs which do comply with the terms are valid. If it were conceded that the claim of the appellant in this matter was correct and that a valid wakf might be made apart from the terms of Act 6 of 1913 the appellant's case then proceeded on the argument that the Act 6 of 1913 had rendered invalid the previous restrictions on such wakf and that there were no restrictions on the capacity of a wakif to make a wakf. If that were so it is obvious that the Act 6 of 1913 would be of no effect.
3. It appears to me that if there can be a valid wakf subsequent to the Act, apart from the provisions of the Act, where the wakf makes provisions for the family of the wakif then the rulings of the Privy Council and the Courts in India which applied to wakfs before the Act would apply. One of those rulings was Ramanandan Chettiar v. Vava Levvai Marakayar (1916) 3 AIR PC 86. In that ruling it was laid down that the test of whether a deed was or was not valid as a wakf in cases decided before Act 6 of 1913 was that if the effect of the deed was to give the property substantially to charitable uses it would be valid, but if the effect of it was to give the property in substance to the settlor's family then it would be invalid under Mahomedan law. Applying this ruling to the present endowment the total expenditure directed by the deed of endowment is altogether Rs. 1154. This is divisible into two totals, the total payments for religious and charitable purposes being Rs. 416 per annum and the total payments for the benefit of the family being Rs. 738. The details of these amounts are as follows:
Muharram ... ... Rs. 200
Chehlum ... ... Rs. 20
Fateha of Saints ... ... Rs. 50
Milad Imams (birth ceremony
of Imaman) ... ... Rs. 25
Mosque repairs, etc. ... ... Rs. 25
Salary of reciters of Quaran ... Rs. 96
Total of payments for religious and charitable
purposes Rs. 416
Repairs of house ... ... Rs. 50
Wakif Mutwalli ... ... Rs. 360
Mt. Mhudejatul Kubra daughter
(mother of defendants) on her death
to go to the Mutwallis, the two
sons of Waqif. ... ... Rs. 150
Mt. Kaniz Kubra (plaintiff)
daughter's daughter, and on her
death to her heirs ... ... Rs. 75
Mt. Ahmadi Bibi, daughter's
daughter (plaintiff's sister), and
on her death to her heirs, ... Rs. 100
Salary of Sweepers ... ... Rs. 3
Total of payments for family
purposes ... ... Rs. 738
Total ... ... Rs. 1154
4. Therefore by the test of this ruling the property has not been given substantially to religious or charitable uses, but it has been given substantially to the settlor's family. The wakf therefore is invalid by this test. The principle of this ruling is stated in para. 159 of Mulla's Mahomedan Law, 11th Edn., page 161 as applying to private wakfs before Act 6 of 1913. Some argument was made that there would be a different rule in regard to Shia wakifs from Sunni wakifs. For the respondents reference was made to Hamid Ali v. Mujawar Husain Khan (1902) 24 All 257, where it was held by Burkitt J., that the same rule would apply to Shia wakifs and that the deed of gift would be in that case invalid as it was not so much intended to satisfy pious or charitable objects as to secure the preservation of the donor's property for his family. Stanley C.J., dismissed the appeal on other grounds, but on p. 273 he stated:
But I may observe that if the wakfnamah and the will can be read together, as my brother Burkitt considers that they can, I should have difficulty in coming to any other conclusion than that at which he has arrived, namely that the deed of gift was not so much intended to satisfy pious or charitable objects as to secure the preservation of the donor's property for his family.
5. It may be noted that by Act 32 of 1930 the Act 6 of 1913 has been given retrospective effect to apply to wakfs which were created before Act 6 of 1913. It appears to me therefore that on the theory that regard can be had to the doctrine of Mahonaedan law apart from the terms of Act 6 of 1913, the case for the appellant will still fail because the wakf does not satisfy the tests laid down by their Lordships of the Privy Council for the validity of wakfs prior to Act 6 of 1913. No argument was made on grounds 7 to 9. On ground No. 10 it was argued that even if the deed of wakf was invalid a charge could be legally created on the property for payment of the annuity claimed by plaintiff-appellant. This argument was based on Mohammad Irfan Ali Khan v. Mohammad Tahir Ali Khan : AIR1933All277 . This ruling by a Bench of which I was a member, was in regard to a wakf where there was Rs. 158 per annum granted as personal annuities. On p. 101 it is stated:
It does not appear therefore that there is anything to support a finding that the Rs, 158 for the personal annuities was a payment of income for charitable purposes,
and on page 102:
It is also to be noted that in regard to the Rs. 158 for annuities eventually these annuities will cease when the respondents die.
6. On page 103 it was held:
We are also of opinion that the items of personal annuities totalling Rs. 158 per annum constitute a valid charge on the property in question for the benefit of those individuals. Those annuities of course will not be heritable.
7. On p. 98 of this ruling it is stated:
The executant did not make himself mutwalli but in the deed he made his son-in-law Mohammad Yunus Ali Khan and the brother of his son-in-law Mohammad Ibrahim Ali Khan the two mutwallis.
8. The wakf was executed on 22nd August 1906 by Qazi Mohammad Ismail and Qazi Mohammad Ismail died nearly five years later on 6th May 1911. He therefore was found to have transferred his property to trustees for the benefit of the persons for whom he provided annuities of Rs. 158 per annum, and it was under these circumstances that the Bench found that there was a valid charge on the property for this Rs. 158 per annum. In the present case however Mt. Nabihan executed a deed of wakf and constituted herself as the first mutwalli. The deed of wakf was executed on 18th January 1927 and Mt. Nabihan, the executant, was the first mutwalli until her death, the date of which is not found but it was prior to the application of the defendants for mutation made on 15th June 1929. The deed of wakf provided that Mt. Nabihan, the executant, would be the mutwalli and receive a salary as mutwalli of Rs. 360 per annum and receive also the remaining income of the property and expend it during her lifetime as she thought fit. But that on her death the different items of expenditure as set out in the list quoted would begin. The plaintiff therefore did not obtain any annuity under this document during the lifetime of Mt. Nabihan and it was only on her death that the plaintiff could claim a right to the annuity. So far as the plaintiff is concerned therefore as the document is not valid as a wakfnama it appears to come under the category of a will, and there was in reality no transfer of the title to the property during the lifetime of Mt. Nabihan.
9. The case is different therefore from that in Mohammad Irfan Ali Khan v. Mohammad Tahir Ali Khan : AIR1933All277 , where the executant made a transfer of his property during his lifetime to certain trustees whom he designated as mutwallis and gave possession to these persons during his lifetime. That case dealt with a deed of trust and there was no reason in law why the annuities should not be paid to the amount of Rs. 158 per annum. Learned counsel also referred to 17 Cal 498, also reported in Mahomed Ahsanulla v. Amar Chand (1890) 17 Cal 498. In that case however their Lordships did not find that the provision for the family of the grantor was valid and no such question arose as the case dealt with the point as to whether the property was or was not wakf and could or could not be attached in execution of a decree against a member of the family. It may be noted however on page 507 that para. 1 of the deed showed that the grantor was not the first mutwalli but his three sons were the first mutwallis. Reference was also made for the appellant to Bikani Mian v. Shuk Lal Poddar (1893) 20 Cal 116 (F B). This case does not support the contention for the appellant. On p. 133 it is stated that Bikani Mian in 1874 executed a wakfnama and on p. 135 that there were decree-holders against Bikani Mian who sought in the suits before the Court to attach and sell the properties covered by the wakfnama. This was during the lifetime of Bikani who was the appellant before the Full Bench. On p. 119, para. 1 of the wakfnama is quoted and it shows that there were allowances per annum of Rs. 100 to each of two sons and Rs. 50 to each of four daughters and Rs. 50 to the executant's wife, totalling Rs. 450. The preamble of the document stated:
Taking the said wakf properties out of my personal ownership and possession I hold them in possession as mutwalli under the terms of this wakf. As long as I shall live I myself shall continue to be mutwalli and as such do, everything according to the terms of the said wakf.
10. The case therefore for the annuitants was stronger than the present case for the plaintiff-appellant because the mutwalli had bound himself to pay these annuities during his life. Three Judges against two Judges held that para. 3 of the wakfnama would create a valid charge. This paragraph quoted on p. 121 states as follows:
Every year the mutwalli for the time being shall in the name of God give away Rs. 50 in charity to the poor. One student must always be maintained and in this the mutwalli shall never fail.
11. In first appeal the District Judge held on page 136.
I think the appellant is fairly entitled to have released from attachment a portion of the property of which the assets would be about Rs. 75 per year, i.e., Rs. 50 for religious purposes and Rs. 25 for the support of a student who, as I may here observe, has always been maintained by the appellant if not from the date of the wakfnama still for a very considerable period. The decree of the Subordinate Judge will therefore be modified and there will be declared a valid charge on the property of the wakf to the extent of Rs. 75 per annum.
12. It will be noted therefore that the Courts below did not hold that the Rs. 450 of personal annuities was valid. The defendant appealed to the High Court of Calcutta and the plaintiff did not bring any appeal in regard to the personal annuities. The case before the High Court was argued in regard to the Rs. 75 which was for charitable purposes only. On this question the learned Judge's differed, three Judges holding that the Rs. 75 for charitable purposes constituted a valid charge and two Judges holding that it did not. For the majority p. 204 gives the decision of Ghose J. on this point which is very brief as follows:
As regards the cross-objection to the decree of the District Judge relating to the charge of Rs. 75 a year upon the property of Bikani Mian I think that it should be disallowed. By the deed of 4th Aughran 1281, Bikani did create a valid charge in favour of the poor and students to the extent of the amount just mentioned, and there is no reason why this charge should not be affirmed.
13. No ruling has therefore been shown which supports the proposition contained in the tenth ground of appeal. The argument was not contained in the grounds of appeal that the personal annuities would be valid as a will but learned Counsel did mention this matter. There is however a difficulty in the way. A Shia or Sunni is only entitled to make a will of one-third of his property. In the present case the document purports to dispose of the whole property on the death of the executant. Therefore the document would only be valid as a will to the extent of one-third of the property. Learned counsel argues that it should be held to be valid to the extent of one-third. But the difficulty then arises as to which one-third is to be taken to be valid. If a will is made of the whole property in favour of a single legatee then no doubt that legatee may claim that he should take one-third of the property. But here there are different objects provided for in the document. I am not aware of any rule by which each object should be reduced to one-third of the amount and therefore the document does not appear to be valid as a will. For these reasons I dismiss this second appeal with costs; As points of law have been argued permission is granted for a Letters Patent appeal.