T.C. Raghavan, J.
1. The Official Receiver, Ernakulam, the appellant, started proceedings under the Travancore-Cochin Insolvency Act for declaration that the wakf deed, the original of Ex. P-1, executed by the first respondent on 10th September 1936, was a document not intended to be acted upon and was intended to be used only as a shield against any future claim that might be made against him by any creditor. The insolvency court agreed with this and allowed the petition. The first respondent, the insolvent, took up the matter in appeal before the lower appellate court; and the District Judge disagreed with the insolvency court and dismissed the petition. The contention of the insolvent was that the wakf was created even earlier than the date of Ex. P-1; that Ex. P-1 only affirmed it; and that the subsequent conduct, whatever it be, could not have made the wakf once constituted any the less a wakf. It was these contentions that were accepted by the District Judge. In the second appeal some of the creditors of the insolvent and the Kerala Wakf Board are also parties.
2. The insolvency court rested its conclusion mainly on four grounds: (1) that the insolvent did not, dining the several years that passed after Ex. P-l, obtain mutation in his name as mutawalli; (2) that when a portion of the lands comprised in the wakf was acquired by the State under the Land Acquisition Act and compensation paid, the insolvent received the amount, which was not credited to the accounts of the trust; (3) that the insolvent has not kept accounts as mutawalli and has also not furnished accounts in court as provided under Cochin Act XXXI of 1111; and (4) that the income of the property has all along been utilised by the insolvent only for his own purposes. The insolvency court also proceeded on the basis that though the Wakf Validating Acts of 1913 and 1930 were not applicable in the erstwhile Cochin State, where the wakf deed came to be executed, and though the decision of the Privy Council in Abdul Fata Mahomed v. Rasamaya, (1895) ILR 22 Cal 619 (PC) was not applicable to the said State, still the Privy Council decision laid down the correct law applicable to Mussalmans in India, and therefore, even if the decision, as such, did not apply to Cochin State, the interpretation given by the Privy Council of the Mussalman law, as it came from a high judicial body, might be followed in Cochin State as well. I may point out at this stage that the decision of the insolvency court rested entirely on the subsequent conduct of the insolvent and on the principle of the decision of the Privy Council. I may make my meaning clearer: the insolvency court did not consider the circumstances existing at the time of execution of wakf deed to find out whether a wakf was really, intended to be created under the document, or whether the principle underlying the Wakf Validating Acts applied.
3. The District Judge has, on the other hand, laid stress on the circumstances prevailing at the time of Ex. P-1; and from those circumstances and the intrinsic evidence furnished by the recitals in the document, he has come to the conclusion that a wakf was in fact constituted and that the document was intended to be acted upon and did create a wakf. He has further held that the subsequent conduct had no effect to invalidate the wakf which already came into existence. Again, he has said that the Wakf Validating Acts and the Privy Council decision were both inapplicable to Cochin State; and that the decision in this case should not be based on them.
4. In a case like this it is evident that the circumstances at the time of the document should be given more importance than the subsequent conduct. The subsequent conduct should be considered only if the circumstances at the time of the document are not sufficiently helpful to understand the nature of the transaction, because the subsequent conduct only in a way reflects the intention of the party at the time of the transaction. The only evidence available regarding the circumstances at the time of the document is given by the insolvent himself. There is no evidence on the side of the Official Receiver which will give any help on this question. Normally, in such a case one of the creditors should have gone into the box to speak to the circumstances prevailing at the time. That has not been done, the only evidence on the side of the Official Receiver being that of his litigation agent.
From the evidence of the insolvent it appears that he had no debts in 1936, nor was he doing business at the time. He was in fairly affluent circumstances; and he executed Ex. P-1 leaving out at least a few other items of properties. The evidence also shows that he never aid business even thereafter. His son did business; and 13 years after Ex. P-1 the insolvent stood surety for his son's debts and ultimately became an insolvent. Therefore, it is fairly clear that Ex. P-1 could not have been executed with the intention to use it as a shield against any possible future claim that might the made against him by any creditor.
5. I shall now refer to the provisions of the wakf deed. Paragraph 1 says that the wakf was already created on 1st Chingom 1122, the deed itself having been executed on 26th Chingam; and that by the document the wakf already created was only confirmed. The wakf is designated wakf oulad. Paragraph 2 states that the wakif had one son and three daughters. Paragraph 3 lays down that after meeting the Government revenue, municipal tax, etc. of the properties, 10 per cent of the remaining income should be utilised for the spiritual benefit of the wakifs father, mother, wife, children, etc. and the rest to be used for the expenses of his family. During the wakifs life he has the absolute right to do that. Paragraph 4 prohibits the alienation of the properties either by the wakif or by his successors. It also provides that, if necessary, the properties included in the wakf might be sold and invested in more profitable ways. Paragraph 5 provides for the management of the wakf by the wife of the wakif after him. Then paragraph 6 provides that during the lifetime of the wakif and his wife, they have full discretion for the management; and that nobody has the right to question their management. Then comes paragraph 7, which provides for the management of the wakf by the wakif's son, Muhammad Ibrahim, after the wakff and hit wife. Provision is made in this paragraph for Muhammad Ibrahim to take 10 per cent of the income towards his management, 10 per cent to be spent on charities and the balance of 80 per cent to be divided in the ratio of two to one to one to one (2:1:1:1) among Muhammad Ibrahim and his three sisters. Further provision is also made in this paragraph as to what is to happen when any one of these parties does not take the income.
Paragraph 8 provides that after the death of Muhammad Ibrahim the eldest member in the male line of his descendants should do the management; and paragraph 9 provides for the management by the eldest male of the descendants of the daughters in the absence of mala members in Muhammad Ibrahim's branch. Paragraph 10 lays down that mutation should immediately be effected in the name of the wakif. Paragraph 11 provides for arbitration in case the manager for the time being does not properly discharge his responsibilities. Paragraph 12 provides for the alteration of the provisions of the document, if any of them is found to be inadequate, and also for the augmentation of the wakf. The next provision to be noted is paragraph 14, which states that if any property included in the wakf is acquired by the Government, the compensation money has to be used for constructing new buildings or for effecting repairs to existing buildings. If this cannot be effected, the amount should be deposited in a bank in the name of the wakif.
Paragraph 15 is again an important provision. It provides for the contingency of the family becoming extinct. It is laid down that in that event, the descendants of the wakif' s father's family and mother's family must appoint three trustees, one of whom to be the managing trustee; and that the said managing trustee has to carry on the management. The provision also says that after meeting the revenue and maintenance expenses half the remaining income should be distributed among the poor widows in the two families of the wakifs father and mother and also among others who have no means of livelihood. Again, it says that in the absence of such poor widows and other poor relations, the said half should be given to poor Cutchi Memon widows and other Cutchi Memons having no means of livelihood, and should also be used for giving religious instruction to new converts to the Musalman faith, for repairing mosques, etc. The provision continues to state that the ether half of the income should be added to the eorpus of the wakf by purehasing other properties and by constructing and repairing buildings.
One more provision to be noted is paragraph 17; and feat says that in case the aforesaid trustees fail to conduct the management, to Cochin Sirkar will kindly accept the management and manage the wakf. These are all me main provisions in the document.
6. From these provisions what appears. Fairly clear is that the Intention of the wakif at the time of the execution of the document was clearly to create a wakf, and not merely to have a pocket document to be utilised as a shield in the future. The counsel of the Official Receiver points out that in spite of the provision in paragraph 10 requiring immediate mutation, the wakif did not do so, so that the intention even at the moment when the document was executed must have been not to give effect to it. I do not agree. In my opinion what paragraph 10 shows is that the wakif was serious at the time; and that was why he provided for the immediate transfer of the patta. But he did not carry it into effect; and that can only mean, as rightly pointed out by the District Judge, that he committed breach of trust. Again, another circumstance pointed out by the counsel of the Official Receiver is that the compensation money was utilised by the wakif and was not added to the corpus of the wakf as provided by paragraph 14. There is evidence of the insolvent to show that the money was utilised for repairing the buildings belonging to the wakf; and that is in conformity with the provisions in paragraph 14. Another circumstance pointed out is that the wakif did not produce his accounts, though he said in the box that he kept accounts. Under Ex. P-1 he is not bound to keep accounts during his lifetime; and that was what he averred in his pleading. It is true that he said in the box that he had accounts; still, the non-production of the accounts cannot be used to hold that the document was not intended to be acted upon. Another ground raised by the counsel of the appellant is that the wakif did not file accounts in court as contemplated by Cochin Act XXXI of 1111. That again is only subsequent conduct; and that should not be allowed to override the effect the document had at the time of its execution. There is also evidence given by the other witnesses examined by the insolvent that during the Ramzan month charities used to he given to the poor from the income of the wakf.
7. Mr. T.S. Venkateswara Iyer, the appellants counsel, then argues that the terms of Ex. P-1 disclose only an intention to benefit the wakifs descendants and relations; and that there is not even an ultimate gift to charity. He brings to my notice the evidence of the insolvent that the purpose of the document was to keep the properties in the family. The counsel also urges that the principle of the Privy Council decision in Abdul Fata Mahomed's case, (1895) ILR 22 Cal 619 (PC) should apply to this case, though the decision itself had no force in the erstwhile Cochin State. He contends further that the Wakf Validating Acts had also no force in Cochin State.
8. The pure Mussalman law recognises that making provisions for one's self and his descendants and relations is a pious act; and that it amounts to charity. Ameer Ali in his Mahommedan Law, Vol. I, states so: for example, see pages 194, 214 and 216. The author says that to make a provision for one's self is regarded by Hanafi lawyers as an act of khair, for the Prophet declared a man giving subsistence to himself as giving charity, and settlements upon one's family are approved of and regarded as lawful by all the schools. Again, he says that the making of provision for one's self or for one's children against future want is a pious act. He continues that in the Mussalman system there is an obligation, in some cases legal, in others semi-legal or moral, to provide for the maintenance of parents, descendants and kinsfolk in general. I do not propose to add to such observations of Ameer Ali. The author divides wakfs into three classes, public, quasi-public and private. At any rate, there is criticism against this extreme position and the division of the subject by Ameer Ali: for example, vide p. 445 of Hindu and Mahomedan Endowments by Ganapathi Iyer. At the same time I wish to point out that pure Mussalman law accepted such gifts as pious, though that was certainly an extreme view. Mulla also says at page 180 of his book, Principles of Mahomedan Law, 14th Edn.
'It can hardly be doubted that under the pure Mahomedan law a wakf exclusively for the benefit of the settlor's family and descendants was valid. Such a settlement may be one in favour of unborn persons; for it may create successive life-interests in favour of such persons; it may be 'a perpetuity, of the worst and most pernicious kind' out it was recognised by Mahomedan law.'
9. The other extreme view, which is in accordance with the English system of jurisprudence, is expressed by the Privy Council In Abdul Fata Mahomed's case, (1895) ILR 22 Cal 619 (PC) already referred to and other decisions: and that is that a gift to the poor might be illusory from the smallness of the amount, or from its uncertainty or remoteness, and that the period when the gift was to take effect was so uncertain, and probably so remote, that the gift was illusory. The Privy Council held that in such cases there was no valid wakf.
10. A via media was struck by the Wakf Validating Acts of 1913 and 1930, which lay down that a wakf shall not he unlawful merely because it is created for the purpose of maintenance and support, wholly or partially, of the wakifs family, children or descendants, provided the ultimate benefit, expressly or impliedly, is reserved for the poor or for any purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character. Thus, if there is an ultimate gift to a charitable or religious purpose of a permanent nature, even if it is fairly remote, the wakf will not be invalid.
11. I need not decide whether it was the pure Mussalman law that applied to the erstwhile Cochin State, because, in this case there is an ultimate gift to a religious or charitable purpose. (I may however observe that if I have to express an opinion on that question, I will have held that the principle underlying the Wakf Validating Acts should apply to Cochin State as well, because that is more in conformity with modem concepts and will also satisfy Mussalman sentiments). Ten per cent of the income of the wakf in this case is always to be utilised for charitable purposes; and under paragraph 15 there is an ultimate gift as well to charities. But, Mr. Venkateswara Iyer points out that the ultimate gift contemplated by paragraph 15 is not of the entire income but only of half the income, the other half being directed to be added to the corpus. The counsel argues that this is again tying up the properties and increasing the corpus or the wakf and distributing only a portion of the income for charitable purposes. Nonetheless, it cannot be said that the properties are sought to be retained in the family of the wakif. I may also point out that there is provision in paragraph 12 that the provisions of the document may be appropriately changed. Therefore, I am of opinion that there is an ultimate gift to charity. The further contention of Mr. Venkateswara Iyer that the principle of the Privy Council decision should be applied in this case does not commened itself to me, because that decision did not apply to Cochin State and was not in accordance with pure Mussalman law. Therefore, the course open to me in this case is either to accept the pure Mussalman law, or at least the principle underlying the Wakf Validating Acts. In either case, ( I prefer the latter) the provisions of Ex. P-1 are valid as a wakf.
12. The appellant's counsel then argues that, at any rate, during the lifetime of the wakif, the insolvent, the income, after deducting the ten per cent for charities, is in the absolute discretion of the wakif so that that income must come to the Official Receiver to be distributed among the insolvent's creditors. I do not think this contention is correct, because that income is not that of the wakif, but is ear-marked under the wakf to be utilised for the family of the wakif. The insolvent is only a trustee regarding it, though he has full discretion as to how it should be spent.
13. Yet another argument of the appellant's counsel is that items 5 and 6 in Ex. P-1 were situated in Fort Cochin; and that the registration of the document outside Fort Cochin could not have constituted those items wakf properties. This contention overlooks the fact that the wakf was already constituted on 1st Chingam of 1112 and the document executed more than three weeks thereafter only confirmed it.
14. Thus, all the contentions urged by Mr.Venkateswara Iyer are rejected. The decisionof the lower appellate court is confirmed; andthe second appeal is dismissed with costs of thefirst respondent (insolvent).