1. This appeal arises out of a suit for the following reliefs: First, a declaration that the right of defendant 1 to remain mutwalli of certain waqf property has become extinct, and that the plaintiff is entitled to possession of the waqf property as mutwalli, and that he may be put in possession of it as such. Secondly, a declaration that a sale-deed of 5th October 1920 by which defendant 1 transferred a certain portion of the waqf property to defendant 2 is void, and that defendant 2 may be ejected from that property and the plaintiff put in possession of it as mutwalli. The plaintiff is the eldest son of defendant 2, and the waqf in question was created by the father of defendant 1 by a deed dated 13th September 1919. The deed declares that the waqif makes 'a waqf for self and children'' in respect of his immovable property specified at the foot of the deed, and that the property 'shall henceforward be property dedicated to God.' The deed contains the following provisions: That the waqif should remain mutwalli to the end of his life; that on his death his son Mohammad Mushtafa (defendant 1) should be sole mutwalli and, after him, his son, Mohammad Shafiq Ahmad (the plaintiff) should be mutwalli; that the office of mutwalli should be hereditary in the family of the waqif; that after the death of the waqif it should be the duty of the mutwalli to maintain the waqif property in repair, and to pay taxes and to expend at least sis pies per rupee of the residue of the income 'on good deeds and charity.' The balance of the income, so far as the plaintiff and defendant 1 are concerned, is to be divided as follows. 2 suls share to defendant 1, and 1 sul share to the plaintiff. The dead further provides that inasmuch as a portion of the waqf property, namely an ahata (which I shall henceforth call the ahata), had been mortgaged by the waqif before he created the waqif, and inasmuch as the waqif was also under an obligation to build upper storeys on certain shops, which are also included in the waqf, it should be the duty of the mutwalli to pay off the mortgage debt and to build the upper storeys of the shops 'out of the rent of the ahata' or
by raising money against the said ahata is any other reasonable and proper manner.
2. (This ahata is the property which defendant 1 subsequently sold to defendant 2, and which the plaintiff now seeks to recover). The deed finally provides that if any of the mutwallis
fail to abide by the dictates of Islam or does anything against the conditions of the waqfnama he shall be deprived of the right of being mutwalli and after him whoever may be surviving and entitled according to the conditions of the waqfnama shall be mutwalli;
but, if none of the male or female descendants of the waqif survives,
the District Judge shall have power to appoint any reliable Musalman of the Sunni sect and belonging to the Hanaf school as mutwalli; and that such mutwalli should spend the income from the waqf property on the religious education of Musalmans; submit an account of income and expenditure to the District Judge every year; and comply with his orders regarding management of the property.
3. The present suit was brought as an ordinary suit before the first Subordinate Judge of Cawnpore, who, holding that it should have been brought under Section 92, Civil P.C., granted a decree declaring that the properties mentioned in the plaint were waqf property and refused to give the plaintiff any other relief. The plaintiff has appealed against so much of this order as refuses him the relief for which he asks, and the defendants have appealed on the ground that no declaration should have been given to the plaintiff.
4. The first point to be decided is whether Section 92, Civil P.C., applies to this suit or not. Counsel for the defendants divided his argument on this point into two heads, first; that under Mahomedan law every waqf-ul-aulad is an express trust for a charitable purpose of a public nature so that, even if the whole of the income of the waqf be devoted to the support of the waqif's family, the waqf is, by reason of the ultimate remainder to charitable purposes, a public waqf. Secondly, that even if this is not so, the obligation to expend 6 pies per rupee of the net income of the property on good deeds and charity makes this waqf a public waqf.
5. As to the first point, in Mahomed Ismail Ariff v. Ahmed Moolla Dawood A.I.R. 1916 P.C. 132, at p. 134, [of 43 I. A] their Lordships of the Privy Council make the following observations:
The Mussulman law, like the English law, draws a wide distinction between public and private trusts. Generally speaking, in case of a waqf or trust created for specific individuals or a determinate body of individuals, the quazi whoso place in the British Indian system is taken by the civil Court has in carrying the trust into execution to give effect as far as possible to the expressed wishes of the founder. With respect, however, to public religious or charitable trusts of which a public mosque is a common and well-known example the quazi's discretion is very wide.
6. In view of this authoritative expression of the law on the subject, I think it is not open to this Court to hold that there can be no such thing as a private waqf in Mahomedan law; but even if we had not the opinion of their Lordships to guide us, I should, though with less confidence, be inclined to agree with the argument of counsel for the plaintiff that in construing Section 92, Civil P.C., the words, 'public trust of a charitable or religious nature', should be given their ordinary meaning, and cannot be made to vary according to the classification of trusts which may be adopted in different systems of law. The section does not affect substantive rights except in so far as it prescribes the manner in which they can he enforced. If the provision for expending six pies per rupee on good deeds and charity be ignored, the waqf with which we are concerned constitutes a trust for the benefit of the family of the mutwalli so long as any member of that family survives, and that trust is, in my opinion, a private trust even though the ultimate trust is for a charitable purpose. The situation appears to me to be similar to that which would arise if property were vested in a trustee upon trust for some named individual for his life and after his death upon trust for a named public charity. Such a trust, so far as the individual tenant for life would be concerned, would be a purely private trust in enforcing which he would be entitled to proceed in the ordinary way; although, if the trustee were wasting the corpus of the trust funds, the Advocate General (i.e. in these Provinces, the Legal Remembrancer), or two members of the public with his consent in writing, might institute a suit under Section 92, Civil P.C., for the purpose of preserving the corpus of the trust funds.
7. I. now turn to the second argument put forward on behalf of the defendants, namely that the direction to spend a 1/32 part of the income of the property on 'good deeds and charity' makes the waqf a public trust within the meaning of Section 92, Civil P.C. The exact provisions of the waqfnama concerning charity are these: There is no dedication of any defined portion of the income of the property to any benevolent or charitable purpose during the life of the waqif He merely announces his intention 'to spend such amount as he may think proper in the name of God.' After the death of the waqif it becomes the duty of the mutwalli to spend 'according as he thinks proper, at least six pies per rupee of the net income on good deeds and charity', and it is finally provided that 'no outsider shall be entitled to benefit himself' in the life-time of the waqif or in the life-time of Mohammad Mujtaba and his sons, as well as of his wife Mt. Mariyam Bibi
with the exception of the fact that the mutwalli may render help to any needy person by way of charity out of the aforesaid amount,
that is, the 1/32nd part of the net income of the waqf property The first comment which 1 wish to make on these provisions is that the amount to be spent in accordance with them is exceedingly small. The income of the property at the date of the waqfnama was about Rs. 180 per month, from which Rs. 70 per mensem would have to be deducted for interest at 1 per cent per mensem on a mortgage for Rs. 7,000 on the ahata, so that the sum which ought to be spent would be about Rs. 3-8-0 per month. The objects on which this small sum is to be spent are stated so vaguely, and the discretion allowed to the mutwalli is consequently so wide, that I greatly doubt whether there is any effectual dedication of any portion of the income to charity. All good deeds are not necessarily charitable in the legal sense. Thus for instance, in Williams v. Kershaw  4 Cl. & F. 111; Lord Cottenham held that a gift 'to benevolent, charitable and religious purposes' was void, and this decision was quoted and applied by their Lordships of the Privy Council in Attorney-General for New Zealand v. Brown A.I.R. 1917 P.C. 133, where the legacy was for
such charitable benevolent religious and educational institutions societies and objects
as the trustee of the will should select. It might, however, be said that in this case the words 'good deeds' are merely used as a synonym for charitable alms giving, and that, therefore, the fraction of the income with which I am dealing is to be devoted to the relief of poverty. But, even if this were so, the powers which are given to the mutwalli in spending this small sum are so extensive as to 'when' and 'how' and 'where' it is to be disbursed, that it would be impossible effectually to enforce this trust (if there be a trust) without settling a scheme for the application of the money; and it seems to me that this is a thing that the waqif never contemplated. In my opinion, taking the deed as a whole, it amounts to this: that the waqif wished to impose a religious or moral duty upon the mutwalli to spend a 1/32 part of the income on alms giving in such a way as would be becoming to a pious Mahomedan in the position of the waqif, but that he just stopped short of imposing a legal duty to do so, because the provisions of the waqfnama show that it was the intention of the waqif that as long as any member of the waqif's family was living the mutwalli should not be obliged to render accounts to any public authority. The fixing of a minimum amount for purposes of almsgiving appears to me to have been inserted in order to prevent quarrels among the members of the waqif's family concerning the amount which the mutwalli might properly spend on charity if he chose to do so. But even if I am wrong in this, and if the deed be taken as imposing a charge on the property to the extent of 1/32 part of the income for charitable purposes, I do not think that this would have the effect of making the waqf a trust for a public purpose of a charitable nature within the meaning of Section 92, Civil P.C. In the absence of any express authority on this question and none such has been cited in argument I think that I am entitled to rely on the analogy of certain cases which came before their Lordships of the Privy Council before the Waqf Validating Act was passed, and in which the question was whether the dedication of a part of the income of waqf property to charity was or was not sufficient to support a valid waqf of the whole where the bulk of the property was devoted to the maintenance of the waqif's family in perpetuity with an ultimate remainder to charity if the family died out. In Mohammad Ahsanullah Chowdhury v. Amarchand Kundu  17 Cal. 498 their Lordships, when discussing the effect of the waqfnama in that case, said
their Lordships cannot find that the deed imposes any obligation on the grantor's male issues, or on any other person into whose hands the property may come, to apply it to charitable uses except to the extent to which he (the waqif) had himself been accustomed to perform them... For all that appears, there is no reason to suppose that the charitable uses would absorb more than a devout and wealthy Mahomedan gentleman might find it desirable to spend in that way.
8. Again in Mujib-un-nissa v. Abdur Rahim  23 All. 233 at p. 244 their Lordships observed that a waqf will be valid
if the effect of the deed is to give the property in substance to charitable uses. It will not be so if the effect is to give the property in substance to the testator's family;
and in Mohammad Munawar Ali v. Razia Bibi  27 All. 320 it was held that where a provision for charity created a mere charge of an inconsiderable amount on the profits of the estate there was no valid waqf. It is true that in these three cases their Lordships were considering a question which has now been finally settled by the Waqf Validating Act, namely, whether a waqf for the benefit of the waqif's family was or was not void if it created a perpetuity. But, as I have said, I think that I am entitled to take them as a guide in determining whether the waqf before us is or is not a public trust. The conditions of this waqf almost exactly fit the tests which were applied by their Lordships in the three cases which I have cited to determine the question whether there was a charitable trust or whether the waqf was a private trust. In the present case there was no obligation on the waqif himself to spend any particular sum on charity. The amount to be spent by his successors is very small, both absolutely and relatively to the total amount of the income of the waqf, and the discretion given to the mutwalli in spending it is as wide as can possibly be; so that, as I have said it would be practically impossible to control him in dispensing it. There is also the fact that, as has been proved in evidence, the waqif was in the habit of dispensing alms himself, and that, if I am right in the interpretation which I put upon the waqfnama, he merely wished to provide for the continuance of this practice in his family as a moral or religious duty which he considered becoming to a man of his religion. I, therefore, hold that the deed before us does not create a public waqf, and consequently it is unnecessary for me to discuss the effect of a line of decisions which were cited in argument beginning with Sajedur Raja Choudhuri v. Gour Mohan Das  24 Cal. 418, These decisions all deal with a distinction between cases in which the public may sue to enforce a public trust and cases in which a private party may sue to enforce his own rights under such a trust, and with the effect of Section 539 of the old Civil P.C., or of Section 92 of the present Code, upon such suits. This distinction was recognized by Benches of this Court in Mohammad Ibrahim Khan v. Ahmad Said Khan  32 All. 503, Mohammad Abdul Majid Khan v. Ahmad Said Khan  35 All. 459 and in Puttu Lal v. Daya Nand A.I.R. 1922 All. 499, in which latter case it was held that Section 92, Civil P.C., did not apply to a case where a plaintiff claimed a declaration of his right to act as a trustee of a temple under a deed of endowment in preference to the defendant who claimed a similar right. In the case-before us the plaintiff admits that he is claiming to be appointed mutwalli in order to make certain of getting his 1/3rd share of the income of the waqf property which he says has been wrongfully withheld from him by defendant 1 and that he wants to recover the property which has been sold, so that it might be argued on the analogy of the case to which I have just referred that, even if the waqf is a public waqf, the plaintiff is seeking only to enforce his private rights under it. But in view of certain observations of their Lordships of the Privy Council in Abdur Rahim v. Abu Mohammad Barkat Ali A.I.R. 1928 P.C. 16, I am not certain how far this distinction between the enforcement of public and private rights can now be maintained where the relief sought is of one of the kinds enumerated in Section 92, Civil P.C. I, therefore, prefer to base my judgment on the ground that the waqf with which we are concerned does not constitute a public trust.
9. I now turn to the facts of the case and to the question whether the plaintiff is entitled to the relief which he seeks, namely that he should be appointed mutwalli in place of defendant 1 and that he should be given possession of the ahata sold by defendant 1 to the defendant 2. The plaintiff's claim that defendant 1 should be deposed from the mutwalliship is based on two grounds, namely, that defendant 1 has not been paying to the plaintiff his proper share of the income of the waqf property, and that defendant 1 sold the ahata when there was no necessity to do so.
10. First, as to the plaintiff's allegations about the income, it appears that on 26th Juno 1922, in a suit brought in the Court of the Munsif of Cawnpore by the plaintiff against defendant 1, the plaintiff obtained a decree for Rs. 900 for arrears of income of the waqf property. The plaintiff, therefore, as regards the period covered by that decree, chose and obtained his remedy and it is his own fault if he has not taken proper steps to execute it. In his evidence in chief the plaintiff said that the income of the waqf property is about Rs. 250 a month; but he arrived at this figure without taking into account the interest which would have to be paid on the mortgage for Rs. 7,000 on the ahata; and, on cross-examination, he was obliged to admit that the income was from Rs. 170 to Rs. 180. The plaintiff's evidence shows that he has not been as badly treated as he alleges. He admits that of the two residential houses which form part of the waqf property he has possession of the entire zenana house and that he lives in it with his brother-in-law, Mohammad Hanif, while defendant 1 is, or at the date of the suit was, in possession of the mardana house. He also admits that he has possession of the upper floor of the line of shops which forms part of the waqf property, and that he has one of the shops on the ground floor which has a letting value of Rs. 12 a month. It seems that he also lets another of these shops at. Rs. 15 a month. It, therefore, seems to me that defendant 1 has not excluded the plaintiff from the waqf property or deprived him of his 1/3rd share of the income. So that the plaintiff has not made out any good ground for having defendant 1 removed from the position of mutwalli. The dispute, if there is any substance in it, concerning the allocation of the income of the waqf, is really merely a matter of account. Defendant 1 does not now dispute the plaintiff's right to a 1/3rd share in the income of the waqf or the validity of the waqf. (The judgment then dealt with the question as to the necessity for the sale of the ahata and proceeded.) I therefore think that there was a substantial necessity for the sale, sufficient to justify it in the absence of evidence to show that any smaller portion of the waqf property could have been sold, As their Lordships of the Privy Council have pointed out in several recent cases, a sale may be supported on the ground of necessity although necessity cannot be proved for the whole of the amount of the purchase money. It is true that defendant 1 should have taken the precaution of obtaining the sanction of the Court for the sale; but such sanction can be given retrospectively if necessity is proved, and as I am in favour of giving retrospective sanction to this sale, I would dismiss the plaintiff's appeal with costs.
11. I concur.