1. This is an appeal from a judgment of the Subordinate Judge, holding that a certain deed, dated the 27th of March 1880, purporting to be a deed of waqf did not create a valid waqf. It is sufficient to say that this actual deed has already been on other occasions during the last seven years held to be invalid as waqf by two Subordinate Judges, one District Judge, and twice by two Judge Benches of this High Court of one of which a member of this Bench was also a member. The last time it came before this Court was in 1923, when it was held to be a gift in favour of private individuals which the donor in the course of the document wrongly described as a waqf, by my Lord the present Chief Justice and Mr. Justice Piggott. The judgment in that case is reported as Muhammad Afzal v. Maulvi Muhammad AIR 1924 All 28. We agree with the view there taken, and in substance with the view taken by the Subordinate Judge in this case. Although the dead is in favour of a family of a pious teacher of the Muhammadan faith and not of the descendants of the donor, it seams to us that distinction makes no difference and that the deed offends against the decision of the Privy Council in the case of Abdul Fata Mahomed Ishak v. Rasamayadhur Chowdhri (1895) 22 Cal 619. But in any event the fact that this High Court has twice pronounced against it, would be sufficient to justify us in not differing from the view of the Court below. This appeal must be dismissed with costs including in this Court fees on the higher scale.
Kanihaiya Lal, J.
2. I wish to add a few observations as to the main question discussed at the hearing regarding the construction to be placed on the disposition made by Nawab Muhammad Mahmud Ali Khan of Chhatari in favour of the sons and daughters of his preceptor and their descendants on the 17th of March 1880. It is contended that the disposition was made in favour of persons who were from a religious point of view the object of veneration, and that the object of the disposition could validly be regarded as a religious or charitable object within the meaning of the Muhammadan Law to render the disposition a valid waqf of the property comprised therein. One of the essential conditions of a valid disposition by way of waqf however, is that it must be made in perpetuity. Waqf, in its primitive sense, means detention but it implies detention of a thing in the implied ownership of the Almighty God in a such a manner that its profits may revert to or be applied for the benefit of mankind, and the appropriation is obligatory so that the thing appropriated or set apart can neither be sold nor given nor inherited (Baillie's Muhammadan Law, Vol. 1, page 558), The essential condition is that it should be a settlement in perpetuity, or, in other words, the ultimata end must be one that cannot fail (ibid pages 565 and 566). The object of is waqf must be charitable; or if the waqf is made for the support of one's descendants, it must include an ultimate dedication for religious, pious or charitable purposes; and in that respect it differs from a gift to particular individuals or their descendants. In the case of waqf in favour of descendants, if the descendants fail, the disposition is liable to terminate and the essential condition namely, perpetuity, also fails. The instrument by which the disposition in this case was made provides that the grantees and their grandchildren, generation after generation shall forever enjoy the property without any limitation except in so far that they shall have no power to transfer and hypothecate the property or to grant leases there of for a period exceeding five years. In other words it lays down that the grantees and their heirs shall enjoy the benefits accruing from the property for the support and maintenance of themselves and their descendants and shall not be deprived of any part thereof in any way. It makes no provision as to what is to happen to the property if the descent at any time fails. It provides in other words for a succession of life-estates without any ultimate dedication either to the poor or to any other charitable object recognised by the Muhammadan Law.
3. The learned Counsel for the plaintiff appellant argues that the mere use of the word 'waqf' in the deed suggests perpetuity, and that the law would presume in such a case that if the descent fails, the poor shall be the ultimate object of the disposition. But on this point there is a wide difference of opinion between the different jurists. Abu Hanifa and Muhammad declare that the waqf must expressly purport to be in perpetuity and that if the object of the waqf fails or is such that it may at any time fail, the waqf must he regarded as void. Abu Yasuf has, however, laid down that perpetuity will be presumed, if not stated, and that if the object of the waqf fails, it will result in favour of the poor. The views of the different jurists have been summed up by the author of the Hedaya (Hamilton's Hedaya, Vol. II page 341); and though it is said, the views of Abu Yusuf have found favour in Balkh and certain other countries (Baillie's Muhammadan Law, Vol. I, page 567) it could be said that the use of the word 'waqf' can be separated from the context so as to convert a personal grant to a specified set of individuals into a public disposition. As a general rule, when Muslim jurists of authority express dissenting opinions upon some questions the Islamic Courts presided over by the Qazi are vested with authority to adopt that view which in the opinion of the Presiding Officer is most in accordance with justice in the particular circumstances. In the case of Muhummad Mumtaz Ahmad v. Zubaida Jan (1889) 11 IC 460 that principle was accepted and applied, and considering that the disposition here in question was really intended to benefit certain specified individuals and their descendants without any reference to the ultimate fate of the property in case the descent failed it is reasonable to presume that it was intended thereby to grant successive life-estates rather than to create a permanent disposition of the property in the sense contended for on behalf of the plaintiff. It is not possible in these circumstances to depart from the view which has been taken in previous cases in which this document came up for consideration. I agree, therefore, in the order proposed.