1. The plaintiff is the sole heir of late Ghouse Begum Sahiba, widow of the late Prince Oomdath-ud-Dowlah Bahadur. This lady died on 4th June 1892 and by an instrument dated 20th December 1886, she endowed certain rnoveable and im-moveable properties for the upkeep of her husband's tomb and for ceremonies connected therewith including ceremonies to be performed for herself after her death. The sole question argued in this appeal is whether an endowment for such a purpose is a valid wakf under Mahomedan law. Other pleas have been abandoned.
2. The objects of the endowments as stated in the deed are 'for the daily, monthly and annual expenses of the aforesaid Mausoleum, such as lighting, frankincense, flowers, and the salaries of Hafigees (repeaters of the koran) and Daroodies (readers of benediction, &c;), as well as for the annual Fatheha (prayers for the dead) ceremonies of the deceased (may he be in paradise); and after my death for my annual Fatheha ceremony'.
3. The learned judge held that none of the above practices were illegal under Mahomedan law. He pointed out that though there were texts disapproving of such practices there was a distinction between things sinful and things merely disapproved;--that as a matter of fact such practices were not uncommon either in India or in other Mahomedan countries, and that at Medina itself the Prophet's grave was lighted up with a thousand lights and scented-wood burnt. On these grounds he held that though there were moral precepts against such practices they had at the present time become sanctioned by long use and custom. To the objection that the endowment was not for any charitable object he pointed out that as a matter of fact alms were given to the poor, and there was an inn for travellers, &c.;
4. We may at once say we do not think the fact that the Mut-tuvalli has dispensed certain charity in connection with this tomb can at all affect the case. The object of the trust must be judged from the terms of the instrument, and there is not a word in Exhibit A to indicate any charitable purpose, or purpose for the benefit of mankind. The objects indicated are of a religious character. See Pathukutti v. Avathalakutti I.L.R. (1888) M. 66 and Fatmabibi v. The Advocate General of Bombay I.L.R. (1881) B. 42
5. Admitting that the practices referred to by the learned judge are not uncommon, and may have become to a certain extent sanctioned by usage, we must point out that the evidence on record fails to show that the expenses for such observances either at Medina or elsewhere come from endowments of the nature of wakf. There is nothing to show that the expenses are not paid for by the contributions of the faithful or by the voluntary offerings of the families of those who desire to commemorate their deceased ancestors.
6. It is urged by the learned Counsel that the object of this endowment though in a sense religious is not for the advancement of religion, and that unless it is intended to benefit mankind by the advancement of religion it is not a valid wakf. It is pointed out that McNaghten, ChipterX., defines an endowment as the appropriation of property to the service of Gad when the right of the appropriator becomes divested and the profits of the property so appropriated are devoted to the benefit of mankind, and in the appendix to that work we are referred to two decisions--the first of the Bengal Sudar Adawlat of 6th December 1798 in which it was held that wakf implies the relinquishing the proprietary right in any article of property and consecrating it to the service of God that it may be of benefit to man (1 S.D.A. Bang. Rep. 17); Mahomed Sadik v. Mahomed Ali the other a decision of 17th February 1857 (Vol. I., Sel. Rep., p. 17, S.D.A.) in which it was held that in as muchas as wakf imolied consecration for the above pur-pose, the provisions for reading the Koran at and lighting the tomb of a testator did not create a valid wakf (McNaghten, App. 556.)
7. In Baillie's Mahomedan law, Chapter III., regarding the proper objects of appropriation we find (page 576, 2nd Edition) that the appropriation of an estate for those who may read at a tomb is not regarded as valid.
8. A great many cases (Abdul Ganne Kasam v. Hussen Miya Rahimtula (1873) 10 B. H. C. 7 Fatmabibi v. The Advcate General of Bombay I.L.R. (1881) B. 441 Limji Nowroji Banji v. Bapuji Rattanji Limbuwalla I. L. R. (1887) B. 441. Nizamu-din Gulam v. Abdul Gafur I. L. R. (1888) B. 264 Abdul Gafur v. Nizamudin I. L. R. (1892) B. 1 Mahomed Hamidulla v. Lotful Hug I. L. R. (1881) C. 744 Luchmiput Singh v. Amir Alum I. L. R. (1882) C. 176 Mahomed Ahsanulla Chowdhry v. Amarchand Kundu I. L. R. (1889) C. 498 Bikeni Mia v. Shuk Lal Paddar I.L.R. (1892) C. 116 were quoted to show the nature of wakf--but none of them bears directly upon the present point. They go to show the nature and requisites of a valid wakf, and that whatever be the interposed interests the appropriation must be for an ultimate' charitable trust which will not fail. The question here is whether the ultimate object is for a charitable purpose at all.
9. In Luchmiput Singh v. Amir Alum I. L. R. (1882) C. 176 the deed directed that the manager should in the first place pay certain debts and afterwards apply the property for the expenses of the Musjid and the tomb of the holy personages of the settlor's family, the servants of a certain Asthana, and for performing urs and fathe-ha at the tomb, as well as for the maintenance of the settlor's grandsons and their male issue. The Subordinate Judge (a Mahomedan gentleman) held that the endowment was valid,--but the only question raised in appeal was whether the provisions for the payment of debts and maintenance invalidated the wakf. The question now in issue was not discussed.
10. Similarly no question appears to have arisen regarding the validity of a similar endowment in the case reported in Debross Banoo Begum v. Nawab Syed Ashgur Ally Khan I. L. R. (1875) C. 412--bat in that case the fathe has to be performed were those of Mahomed and the twelve Imams, and the expenses of the first ten days of the Mohurrum, &c.; The ceremonies there to be performed were at the tomb of the saints and not at the settlor's own tomb. In that case the decision in Syed Khodabhunda Khan v. Mussat Comutal Fatima (1857) 1 S. D. A. 235 that a provision for the lighting of the testator's own tomb and reading of the Koran was invalid, was referred to It was urged that in the construction of a deed of wakf the words 'charitable' and ' religious' must be taken in the sense in which they are understood in Mahomedan law and we were referred to the judgment of Mr. Justice Amir Ali in Meer Mahomed Israil Khan v. Sashti Churn Ghose I. L. R. (1892) C. 412 In that case, however, the question was whether a provision for the settlor's children and kindred was a charitable and religious act, and the learned judge held that according to the Mahomedan law it was.
11. The result therefore of an investigation of the authorities seems to be that endowments purely for purposes like the present seem to be against the principles of Mahomedan law, and that in such cases when wakfnarmahs for such purposes have been upheld the dedication has had relation to the tombs of saints only and has been intermixed with charitable purposes either for the poor or for the settlor's own kindred.
12. In the absence of any express authority showing that a dedication for ceremonies at a private tomb, and for that purpose only is valid under Mahomedan law, we do not think we ought to uphold the deed. It creates a perpetuity of the most useless description which would certainly be invalid under English law. The obser-vance of these ceremonies may be considered by the Mahomedans as a pious duty, but it is certainly not one which seems to fall within any definition of a charitable duty or use. These observances can lead to no public advantage even if they can solace the family of the lady herself. The case bears a close analogy to one in which a Roman Catholic has devised property for masses for the dead, which has been held to be invalid in India on groundsof public policy irrespective of any territorial law. The Most Reverend Joseph Colgan v. Administrator-General of Madras I. L. R. (1892) M. 424 A similar bequest in a Chinese will has also been held to be invalid in an appeal to the Privy Council from the Supreme Court of the Straight Settlements, L. R., 6 Privy Council Appeals, 381.
13. Had it been shown that such perpetuities were recognized as valid under Mahomedan law we should have felt; constrained to uphold the Seed,--but in the absence of such proof we think the general rule of public policy should prevail.
14. We must reverse the decree of the learned judge and direct that a decree be passed in plaintiffs favor as prayed. As the point is a new one we shall make no order as to costs.