1. This is a defendant's appeal arising out of a suit for a declaration that the property in dispute is not attachable and saleable in execution of a money decree as it is wakf property. The Courts below have held that the wakf in question is invalid and unenforceable.
2. On 8th January 1919, Haji Nabi Baksh executed a deed of waqf-alal-aulad. After reciting that he was very old, and there was no certainty of this transitory life, the mentioned that he had four children, one son and three daughters, and had some house-properties, and declared ''therefore by way of foresight and for the sake of the maintenance of the son and daughters aforesaid, I have in accordance with law, Act 6 of 1913, made a wakf-alal-aulad in favour of his son and the three daughters in accordance with the legal shares under the Mahomedan law,' of the two houses. He provided that during his lifetime he would remain the mutawalli of the wakf property, and out of the income of the wakf property he would give proportionate shares to his son and daughters for their maintenance; that after his death his son should remain the muta-jwalli and his authority and powers would be like his own, and a chain of arrangement relating to the appointment of the mutawalli should continue along the line of the sons of the wakif, generation after generation, and that no stranger should have the right to be appointed a mutawalli. If at any time the mutawalli on account of his bad acts interfered with the income of the wakf property and did not give the proportionate share to any share-holder, the said share-holder could get another mutawalli appointed through the District Judge. He also provided that at no time any mutawalli should have the right to sell or mortgage the property made wakf of, and that it would be his duty to repair the endowed houses out of the income of the fund, and to distribute the surplus in proportionate shares to the beneficiaries. He described the deed as wakf-alal-aulad.
3. In the document there was no express suggestion anywhere that he was making a wakf-fi-sabilillah (in the way of God), or for the benefit of the poor, or for any other religious or charitable purpose. Neither the poor, nor any religious institution, nor any charities, were mentioned. The declared object was 'by way of foresight and for the sake of the maintenance of the son and daughters.' No doubt it was stated that the 'wakf-alal-aulad was made in accordance with law, Act 6 of 1913;' but there was no indication as to what was to happen to the income if the line of the descendants became extinct. He provided that no stranger shall have the right to be appointed mutawalli.' The wakif therefore took it for granted that for all time to come there would be his descendants in the line of his son, generation after generation, and so expressly confined the mutawalliship to his descendants. He also gave a right to a future share-holder in the profits, to apply to the District Judge for the appointment of another mutawalli if there was any failure to give the proportionate share to him. All these circumstances lead to only one conclusion that the wakif never contemplated that the line of his descendants would become extinct, and disliked the idea of any stranger becoming a mutawalli.
4. It is well known that prior to 1913 Muslim wakfs for the maintenance of the family or descendants were held by their Lordships of the Privy Council to be in valid, unless there was a substantial dedication to charity. The Mussalmai 'Wakf Validating Act (Act 6 of 1913) was passed professedly for validating wakfs in favour of families, children and descendants. It was held by their Lordships of the Privy Council that the Act was not retrospective, but was only prospective. Accordingly previous wakfs of such kind would still be invalid. Subsequently the Mussalman Wakf Validating Act (Act 32 of 1930) was passed, and the Wakf Act of 1913 was given a retrospective effect provided it did not affect rights which had accrued before 1930.
5. But even though Act 6 of 1913 recognizes as valid purposes the maintenance and support of one's family, children or descendants, and also in the case of Hanafi Mussalmans, his own maintenance and support during his lifetime and the payment of his debts out of the rents and profits, there is a proviso 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.'
6. It is quite clear that there is no such express provision in the deed of wakf before us. The only question is whether it can be said that a reservation of the benefit for the poor, or other religious or pious purpose of a permanent nature is implied. No doubt the wakif intended to create a permanent wakf which was to remain in operation in perpetuity from generation to generation; but it would come within the definition of 'wakf' as contained in Section 2(1) only if Section 3 is complied with, and the requirement of the proviso to that section is fulfilled.
7. The word 'impliedly' has not been defined anywhere; but it seems to us that it must mean that the reservation can be indirectly inferred from the recitals in the deed coupled with surrounding circumstances. Of course, where there is such a reservation in the operative portion of the document by which the dedication is effected, there would obviously be an express reservation to (that effect. But even if there be no such [reservation in the operative portion of the document, there may be some indication in the introductory portion, or in the recital of facts, or in the recital of the object and purpose, from which it might be implied that the wakif had a possible ultimate benefit to the poor, or any religious, pious or charitable purpose, in his mind. But where the document contains no such indication, and it is impossible to say that the wakif had any such purpose in view, even as a remote possibility, and indeed where the wakif does not seem to have contemplated the extinction of the line of his descendants at all, it is difficult to say that any reservation of such benefit is implied.
8. On the one hand there is the case of Irfan Ali v. Official Receiver, Agra 1930 52 All 748, in which there was difference of opinion between the Judges who first heard the case; and the matter was ultimately decided by a Letters Patent Bench. It was held that where there was no express reservation of ultimate benefit for the poor, or for religious, pious, or charitable purpose, then the mere use of the word 'wakf' was in itself not sufficient to imply that there would be an ultimate benefit to the poor. It does not seem to have been pressed before the Bench that inasmuch as there was an express provision that the balance left out of the one-third income of the property would be employed 'on good acts recognized as such by the Mahomedan law (as for instance fatiha, offerings for elders, education and marriage of children, etc.),' then on the analogy of cypres doctrine, the remaining two-thirds of the income would be for similar purposes and charities in case the line of the descendants became extinct. It is therefore not clear whether this aspect of the question was urged before the Bench and at all considered.
9. In Masuda Khatun Bibi v. Mohammad Ebra-him 1932 59 Cal 402 the wakf deed had described itself as 'making a wakf and sadqa in the way of God,' and there was in the preamble a reference for the maintenance of my family and children and for purposes of pious works of charity, and for the benefit of the public and the poor.' The Bench held:
That although the mere use of the word wakf cannot by itself be regarded as connoting an implied reservation of the ultimate benefit to the poor, there was enough in the terms of the wakf to hold that it did, by necessary implication, provide for an ultimate benefit for the poor and for the purposes recognized by the Musalman law as religious, pious, or charitable.
10. In Tahiruddin Ahmad v. Masihuddin Ahmad 933 60 Cal 901, following the earlier oases, it was held that an intention of ultimate benefit to the poor cannot be inferred from the (mere word 'wakf;' and that the ultimate gift to religious purposes must be implied from the terms of the document and is not to be implied from the mere fact that the settlor was purporting to make a wakf. There was however a provision that the wakif would pay 1/16th portion of the income to Ma-homedan poor, keep l/16th to himself, and that the remaining 14/16th were to go to his heirs and descendants. There was no express provision that the gift of 14/16th of the income to the heirs and descendants was a gift which was subject, upon its failure, to be replaced by an ultimate gift to the poor, or for that matter, to any other charitable purpose. The Bench held that the wakf was invalid. There again the applicability of the doctrine of cypres, well recognized in Muslim jurisprudence, does not appear to have been pressed before the Bench.
11. On the other hand, in Baqaullah Khan v Ghulam Siddique Khan 1935 ALJ 647, another Bench of this Court had to consider a deed of wakf which also had not made any express reservation of the ultimate benefit to the poor in respect of 1/16th of the income. The deed used the words 'wakf-fi-sabilillah,' i.e., dedication in the way of God, and the wakf had been created in perpetuity and contained the provision for appointment of muta-wallis for all time to come. A portion of the usufruct of the wakf property had been reserved for pious and charitable purposes; but the wakif made no provision for the application of the rest of the income, i.e., 15/16th, for such purposes in case the line of descendants became extinct. On a consideration of all the circumstances, the Bench came to the conclusion that there was an implied dedication for charitable and pious purposes.
12. It seems to us that if we were to insist on a clear reservation in the dead directing that the benefit of the entire income should ultimately go to the poor, then we would be insisting on an express provision in the deed, and we would be entirely ignoring that the Act contemplated even an 'implied' reservation. A reservation of the ultimate benefit cans be implied only when it is not express; and although it must necessarily be implied from the terms of the document, read in the light of the surrounding circumstances, it must be a matter of mere indirect inference and not direct conclusion. Where the wakif has indicated his intention that his object is to benefit his family, and also religious, pious, or charitable purposes, it can be implied that there is an ultimate reservation for such purposes, particularly so when he has provided that a part of the income should be applied to such purposes during his own lifetime. If one object, namely, the maintenance of his descendants, fails, there is no reason why the other object should also fail, and no reason whatsoever why the whole income should not be devoted to the remaining object as indicated.
13. But in the present case, as already pointed out above, there is no indication whatsoever what object other than the maintenance of his son and daughters the wakif had in mind. It is not possible to say whether he had the poor, or any religious institution, or any charitable purpose at all, in mind. We must therefore hold that the deed in question in the present case is not in accordance with the requirements of Act 6 of 1913. No doubt there is a recital that the wakf-alalaulad was being made in accordance with law, Act 6 of 1913, which, it is argued on behalf of the defendants, implies that the requirements of that Act were fulfilled. After giving the matter our best consideration, we have come to the conclusion that the mere reference to the Act should not be considered sufficient, as that Act refers to various purposes Had there been any mention of a religious, pious, or charitable purpose, then a reference to Act 6 of 1913 would have been very important and significant. On the whole we think that this deed should not be upheld as a valid wakf. We accordingly dismiss this appeal with costs.