1. This is a second appeal by the plaintiffs whose suit has been dismissed by both the lower Courts. The following family trees are relevant:
QAZI MOHAMMAD ISMAIL(died on 6th May 1911)|________________________________________________________________| |Jalil Ahmad (died 9-8-1911) Shafiqa Khatun (died about 1921) Mt. Sughra (divorced on 22-3-1908 Yunus Ali Khan (died about 1920) and A daughter of Mt. Mariam). ||__________________________________| |(Plaintiff 1) Md. Irfan (Plaintiff 2) Mt. Hanifa(Born 1907 or 1908). Khatun (Born 1920)._______________________Muhammad Ali Khan|_______________________________________| |Yunus Ali Khan Ibrahim Ali Khan (died about 1921)(died about 1920). |Mohammad Tahir Ali Khan(Defendant).
2. The wakf in question was admittedly executed on 22nd August 1906, by Qazi Md. Ismail, and it comprises a house and 10 biswas of zamindari in a certain village. The relief asked for by the plaintiffs is: On the establishment of the plaintiffs' proprietary right and possession and the ineffectiveness and the invalidity of the document executed by Qazi Mohammad Ismail on 22nd August 1906, it may be declared that the plaintiffs arc owners in possession of the property in dispute by virtue of inheritance from their mother and that the defendants' name wrongly stands recorded in the papers without any right. The plaint set forth that the wakf was made under the circumstances mentioned in para. 4. As Qazi, Mohammad Ismail apprehended that Mt. Sughra would subsequently get the property of her husband entered in her name by some excuse, so he fictitiously executed this deed of wakf and saved the property in dispute from Mt. Sughra. 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. The plaint claimed that the deed of wakf had never been carried into effect.
3. The written statement of the defendant claimed that the wakf was valid, and that Qazi Mohammad Ismail, the wakif, had put the mutwallis into possession of the endowed property and withdrawn himself from control. Other points of limitation, etc., were pleaded in the written statement but only issue 1 was decided by the Court of first instance. That issue was 'Whether the deed of wakf dated 22nd August 1906, is invalid and has not been acted upon?' The Munsif decided in favour of the defendant and held that decision of issues 2 to 6 was not necessary. The plaintiffs appealed, and the lower appellate Court has written a long and complete judgment which deals however only with issue 1, and incidentally mentions limitation and other points merely to say that there was no argument addressed to the lower appellate Court on these points. We consider that the lower appellate Court did not intend to come to any finding' on issues 2 to 6. The lower appellate Court also dismissed the suit of the plaintiffs on the ground that the wakf was a valid wakf and that it was given effect to, and that the mutwallis had continued during their lifetime to administer the property as wakf. The question therefore before us in appeal is whether the wakf is a valid wakf in accordance with the terms of the Mahomedan law or not. The wakf was executed in 1906, prior to the passing of the Mussalman Wakf Validating Act, and therefore the validity or otherwise of the wakf must be decided on the law as it stood prior to that Act. It is agreed that the law to apply is contained in a number of rulings of their Lordships of the Privy Council, of which we may refer in the first place to Balla Mal v. Ata Ullah Khan . This is a recent ruling of 1927 in regard to a wakfnama prior to the Act of 1913, and on p. 374 (of 54 I.A ) it is laid down as follows.
With regard to wakfs created before the passing of the Act, the test still is, as laid down by the Board in Mohammad Aksanullah Choudhry v. Amarchand Kundu (1890) 17 Cal 498, Majibunnissa v. Abdur Rahim (1901) 23 All 233, Mutu Ramanand an Chettiar v. Vava Levvai Marakayar A1R 1916 PC 86 and Solekman Quadir v. Sakmullah AIR 1922 PC 107 was there a substantial dedication of the properties included in the wakf to chan table purposes? The test may sometimes be difficult of application, and in applying it the Courts, especially since the passing of the Act, will not be disposed to construe the provisions of the deed too strictly, but still the question must remain whether the properties included in the wakf have been substantially dedicated to charity or whether they have been put into wakf by the settlor with the real objcet of effecting some non-charitable purpose such as for instance that of making a family settlement of his property which would otherwise be invalid as opposed to the Mahomedan law of succession.
4. In Mahomad Ahsanulla Chowdhry v. Amarchand Kandu (1890) 17 Cal 498, at the bottom of p. 509, their Lordships of the Privy Council laid down as follows:
On the other hand, they have not been referred, nor can they find, any authority showing that, according to Mahomedan law, a gift is good as a wakf unless there is a substantial dedication of the property to charitable uses at some period of time or other... Their Lordships therefore took to see whether the property in question is in substance given to charitable uses,
and at p. 511:
If indeed it were shown that the customary uses wore of such magnitude as to exhaust the income, or to absorb the bulk of it, such a circumstance would have its weight in ascertaining the intention of the grantor. But the Court, in the execution proceedings, considered that the charitable outlays which he contemplated wore of small amount compared with the property... Under these circumstances their Lordships agree with the High Court that the gift in question is not a bona fide dedication of the property.
5. That is, in that case it was decided there was not a bona fide dedication because charitable outlays were of small amount compared with the property. Similarily it has been held in Abdul, Fata Mahomed Ishak v. Rossomoy Dhur Choudhry (1895) 22 Cal 619, on p. 88 (of 22 I.A.):
In their judgment the Calcutta High Court have in thia case rightly decided that their is no substantial gift to the poor. A gift may be illusory whether from its small amouut or from its uncertainty and remoteness. If a man were to settle a crore of rupees, and provide ten for the poor, that would be at once recognized as illusory.
6. In Muhammad Munawar Ali v. Razia Bibi (1905) 27 All 320, their Lordships of the Privy Council stated on p. 324:
The bulk of the property ig not affected by any religious or charitable trusts....The religious and charitable clauses are no exception. 'They are ancillary to the real purpose of the deed; they deal with matters naturally incident to maintaining the dignity of the family.
7. One of the reasons therefore why in this case the wakf was held invalid was because the bulk of the property was not affected by any religious or charitable trusts. Bearing this exposition of the law by their Lordships of the Privy Council in mind we now turn to examine the particular clause of the deed of wakf in question. This document provides for the appointment of the two mutwallis and set forth that they should spend the income from the property on charitable objects set forth as below, and then proceeds:
They should spend the remaining amount of income on repairs of houses, management of the village and their personal expenses. In case of decrease or increase in expenses on objects of charity, the muttawalis shall be competent to make proportionate reduction or increase in the proposed exepenses or objects of charity at their discretion. The heirs of me the wakif and the muttawalis shall always live in the above house made wakf of without payment any rent,
8. At the end of the deed is a specification of good or charitable expenses '(sarf khair).' Then follow these details:
Salary of Imam and repairs of the mosque of MiranMiran. Rs. 100 p.a.Salary of Moazzin at the Katra Mosque RS. 12Subscription to Madarsa Bahadur Khan Rs. 3Subscription to Madarsa Sirajia Rs. 24Nazrana to Mian Fakhra Alam of Shahjahanpur Rs. 36Subscription to Nadwatululma at Lucknow Rs. 2Hafiz Niaz Beg Rs. 12Salary of Mt. Qudrat, wife of Saiyad Faiyan Ali Rs. 12Salary to Mt. Mariam, wife of Qazi Mahbub Aliof Moradabad, at the rate of Rs. 3 p. m Rs. 36Salary of Basharat Khan and Saiyad Said Ali Rs. 62The total amounts annually of theseprovisions are as follows:Religious Rs. 112Charitable for Schools Rs. 29Personal annuities Rs. 158Total Rs. 299
9. The lower appellate Court has stated in regard to the provision of Rs. 158 for personal annuities:
I see no reason to suppose that the Qazi was doing anything more than arranging for the continuance of the charitable payments that he had been accustomed to make when he was himself the owner of the property.
10. The lower appellate Court has also slated in regard to these persons that one of them was Mt. Mariam, the mother of the wife of the wakif's son and
there is nothing in particular to indicate who the other people were.
11. 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. It appears therefore that the items which are shown to be for religious and charitable purposes were Rs. 112 and Rs. 29, that is, a total of Rs. 141 per annum. But even if the Rs. 158 were considered to be for charitable purposes, we consider that the case would not be substantially different. The lower appellate Court has held that the net income of zamindari property at the time of the wakf was Rs. 600, basing its finding on the fact that the property was let out for that amount at that time. There was also a house in regard to which the provision was that the heirs of the wakif and the mutwallis should always live in the house without the payment; of any rent. The lower appellate Court found that it was impossible to come to any finding as to the market value of this house or whether or not it had any market value at that time, although a commissioner had reported that the materials of which the houses were composed in his opinion would cost Rs. 40,000. It was argued for the respondent that a certain amount of money ought to be allowed for annual repairs of the house which, counsel submitted, would be Rs. 50 per annum. The deed directed that after paying these specific amounts the balance of the income should be spent on the repairs of the house, the management of the village and the personal expenses of the mutwallis. But even if we allowed Rs. 50 for the annual repairs of the house, there would still remain the bulk of the income of the estate which is not dedicated to religious or charitable objects.
12. It is also to be noted that in regard to the Rs. 158 for annuities, eventually these annuities will cease when the recipients die. Under the terms of the deed it is optional to the mutwallis to use the surplus so arising for increasing the expenditure on charity or not. They may, if they prefer, retain these amounts for themselves for their personal expenses. It is clear therefore that the situation ultimately will be, when these annuitants have died, that the only amount which the mutwallis will have to spend will be Rs. 141 for religious and charitable objects, and whatever cost there is for maintenance of the house. As the mutwallis live in the house these repairs will be for their own benefit. The bulk of the income therefore cannot be said to be dedicated to religious or charitable objects. The house is worth a certain amount as a place of residence, be it large or small, and this amount is not devoted to religious or charitable purposes as the provision in the deed is that the heirs of the wakif and the mutwallis shall live in this house. It therefore appears that the wakf is not a document which conforms to the canons of the Mahomedan law as laid down by their Lordships of the Privy Council, and therefore it is not a valid wakf.
13. In holding that the deed is not a valid wakf we hold that there is 'a valid charge created by the document on the property for the religious and charitable purposes to the extent of Rs. 100 for the salary of the Imam and repairs of the mosque, Rs. 12 for the salary of the muazzin, and Rs. 29 grants to schools. In this we follow their Lordships of the Privy Council in Mahomed Ahsanulla Chowdhry v. Amarchand Kundu (1890) 17 Cal 498, where they express agreement with the finding of the Calcutta High Court at p. 503 to the effect that there was no wakf but a valid charge created for the portion of the income dedicated to religious and charitable purposes. 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. These annuities of course will not be heritable. Accordingly we allow this appeal and remand the case for disposal by the lower appellate Court on the remaining issues 2 to 6 under Order 41, Rule 23. Costs hitherto incurred in the Courts will abide the result.