1. The plaintiff is the sole heir of the late Ghousee Begam Sahiba, widow of the late Prince Oomduth-ud-Dowlah Bahadur. This lady died on 4th June 1892, and by an instrument, dated 20th December 1886, she endowed certain immoveable and 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 Muhammadan law. Other pleas have been abandoned.
2. The objects of the endowment 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 Hafizes (repeaters of the Koran) and Daroodies (readers of benediction, etc.), 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 Muhammadan 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 Muhammadan 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 Muttuvalli 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 wordin 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. 13 Mad. 66 and Fatmabibi v. The Advocate-General of Bombay I.L.R. 6 Bom. 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 it 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, chapter X, defines an endowment as the appropriation of property to the service of God when the right of the appropriator becomes divesied 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 Sudr 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, Moohummud Sadik v. Moohummad Ali 1 S.D.A. Beng. 17; the other a decision of 21st February 1857 Syed Khodabuhdha Kham v. Musst. Oomutul Fatima S.D.A. Beng. (1857) 235 in which it was held that inasmuch as wakf implied consecration for the above purpose, the provisions for reading the Koran at and lighting the tomb of a testator did not create a valid wakf (McNaghten, App. to Madras reprint, 423).
7. In Baillie's Muhaminadan 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 were quoted to show the nature of wakf, but none of them bear 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. Vide Abdul Ganne Kasam v. Hussen Miya Rahimtula 10 Bom. H.C.R. 7; Fatmabibi v. The Advocate-General of Bombay I.L.R. 6 Bom. 42; Limji Nowroji Banaji v. Bapuji Ruttonji Limbuwalla I.L.R. 11 Bom. 441; Nizamudin Gulam v. Abdul Gafur I.L.R. 13 Bom. 264; Abdul Gafur v. Nizamudm I.L.E. 17 Bom. 1; Mahomed Hamidulla Khan v. Lotful Huq I.L.R. 6 Cal. 744 ; Luchmiput Singh v. Amir Alam I.L.R. 9 Cal. 176; Mahomed Ahsanulla Chowdhry v. Amarchand Kundu I.L.R. 17 Cal. 498; Bikani Mia v. Shuk Lal Poddar I.L.R. 20 Cal. 116
9. In Luchmiput Singh v. Amir Alum I.L.R. 9 Cal. 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 fatheha at the tomb, as well as for the maintenance of the settlor's grandsons and their male issue. The Subordinate Judge (a Muhammadan 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. Similarly no question appears to have arisen regarding the validity of a similar endowment in Delroos Banbo Begum v. Nawab Syud Ashgur Ally Khan 15 B.L.R. 167 but in that case the fathehas to be performed were those of Mahomed and the twelve Imams, and the expenses of the first ten days of the Mohurrum, etc. 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 Khodabundha Khan v. Musst. Oomutul Fatima S.D.A. Beng. (1857) 235 that a provision for the lighting of the testator's own tomb and reading of the Koran was invalid was referred to.
10. It was urged that in the construction of a deed of wakf the words 'charitable' and ' religious ' must betaken in the sense in which they are understood in Muhammadan law, and we were referred to the judgment of Mr. Justice Ameer Ali in Meer Mahomed Israil Khan v. Sashti Churn Ghose I.L.R. 19 Cal. 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 Muhammadan 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 Muhammadan law, and that in such cases when wakfnamahs 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 Muhammadan 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 observance of these ceremonies may be considered by the Muhammadans 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 Eoman Catholic has devised property for masses for the dead, which has been held to be invalid in India on grounds of public policy irrespective of any territorial law, Colgan v. Administrator-General of Madras I.L.R. 15 Mad. 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 Straits Settlements, Yeap Cheah Neo v. Ong Cheng Neo L.R. 6 P.C. 381 Had it been shown that such perpetuities were recognised as valid under Muhammadan law, we should have felt constrained to uphold the deed; but in the absence of such proof, we think the general rule of public policy should prevail.
13. We must reverse the decree of the learned Judge and direct that a decree be passed in plaintiff's favour as prayed. As the point is a new one, we shall make no order as to costs.
14. Ramanujachariar, Attorney for Appellant.