V. Ramaswami, J.
1. The first defendant is the appellant. Respondents 1 to 5, as plaintiffs, filed the suit for declaration that the suit property is wakf property and restraining the appellant by permanent injunction from bringing the property to sale by publication auction or private sale in pursuance of the mortgage executed in his favour. The suit property is a superstructure bearing door No. 19 Neeli Veerasami Street, Pycrofts Road, Triplicane, Madras. This superstructure along with two other items of superstructures originally belonged to one Syed Ghulam Murthuza Sahib. Under a deed dated 14-5-1927, the original owner purported to executed a 'wakf-ul-aulad'. The plaintiff contended that since the suit property is a wakf property, the mortgage deed executed by their father was invalid and not binding on them and that the appellant herein could not bring the property to sale. The first defendant contended that the wakf deed executed by Syed Ghulam Murtaza Sahib was not valid in law. Alternatively, he contended that the wakf was not acted upon and that, in any case, the second defendant who was the daughter of the wakif, prescribed title to the property by adverse possession. The second defendant, daughter of the wakif, who is also the paternal grandmother of the plaintiffs, remained ex parte. The trial Court came to the conclusion that the wakf was valid, that it was acted upon, that the second defendant had not perfected title by adverse possession and that, therefore, the mortgage executed in favour of the first defendant was not valid and in that view, the suit was decreed as prayed for.
2. In this appeal, the learned Counsel for the appellant mainly contended that the wakf deed executed by Syed Ghulam Murthuza Sahib was not valid in law and that therefore, the suit is liable to be dismissed. After reciting that the wakif was desirous of settling the properties under the provisions of the Mussalman Wakf Validating Act, 1913, as a wakf for the benefit of this daughter and her children subject to his own right of enjoyment of the income of the property for his maintenance, the document proceeded to state that the wakif has dedicated the said properties as wakf and that he shall enjoy the income from the properties during his lifetime and after his death, the income shall be enjoyed by his daughter Hazaran Bi, after her death, by her children and so on from generation to generation and if at any time the line of her heirs is extinct and no heirs are capable of inheriting the property, then, the income from the suit property, then, the income from the suit property should be given to the mutavalli for the time being of the Sydani Bee's Mosque in Bells road, Triplicane, Madras. The deed further provided that he shall be the first mutavalli and after him, his daughter, Hazaran Bi, shall be the mutavalli and if she is not alive, any one of her male children shall succeed to the mutavalliship and that this shall continue from generation to generation and if there were no male descendants to his daughter, then the eldest of the female descendants should become the mutavalli. The learned Counsel for the appellant submitted that the ultimate disposition of the income to the mutavalli for the time being of Sydani Bee Mosque is too remote and does not satisfy the requirement of the provisions of the Mussalman Wakf Validating Act, 1913, relating to the ultimate disposition enuring to the poor. Section 3 of that Act provides that it shall be lawful for any person professing Mussalman faith to create a wakf for the maintenance and support wholly or partially of his family, children or descendants provided that the ultimate benefit in such cases is expressly or impliedly reserved for the poor or for any other purpose recognised by Mussalman Law as a religious, pious or charitable purpose of a permanent character. Section 4 which is in the nature of an explanation states that no such wakf shall be deemed to be invalid merely because the ultimate benefit reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the wakf. It is not disputed that there is an express reservation of the ultimate income to the poor in the disposition, made in the document in favour of the mutavalli for the time being of Sydani Bee mosque. But, what is contended by the learned Counsel for the appellant is that since that disposition is to be operative only after the extinction of all the heirs of the wakif's daughter, the disposition was too remote and illusory and is not saved by the provisions of the Mussalman Wakf Validating Act, 1913. In support of this contention, the learned Counsel relied on the decision in Mohiuddin v. Safia Khatun : AIR1940Cal501 . In that case, the document provided that the income from the property should be distributed to the named individuals therein and on the death of the above mentioned persons, the allowances payable to them were to be paid to their respective heirs in succession according to law of inheritance. If any of the donees die heirless, then, it should go to the pious purposes provided in paragraph 6 of that document. The Division Bench of the Calcutta High Court held:--
'If the ultimate gift to the poor or to pious, religious and charitable purposes be postponed till after the extinction of the family, children or descendants of the wakif, the wakf would be valid although the ultimate gift to such purposes is remote. If such an ultimate gift is more remote, that is, if it is to take effect on the extinction of a more extended group of persons as for instance heirs how low so ever of the wakif, the dedication byway of wakf substantially for the maintenance of the wakif's family, children and descendants would not be void under the Wakf Validating Act.'
3. As stated already, in this case, after stating that the income will have to be utilised by him for the maintenance during his lifetime, after him his daughter and after her death, by her children and so on, the document further provided-
'..........if at any time the line of her heirs is extinct and no heirs are capable of inheriting their property then the income from the suit property would be given to the mutavalli for the time being of the Sydani Bee's Mosque..........'
This portion of the document is a part of the operative portion and is a disposition of the income, so much so, unless the entire block of heirs of his daughter are extinct, the income could not go to the mutavalli of the Sydani Bee's Mosque. This as held in : AIR1940Cal501 is more remote than that contemplated under Section 4 of the Wakf Validating Act, 1913. It may be mentioned that this decision in : AIR1940Cal501 was referred to by the Supreme Court in Fazlul Rabbi Pradan v. State of West Bengal : 3SCR307 , without any word of dissent or comment. The learned Counsel for the State Wakf Board contended that the intention of the wakif was to benefit his daughter and her children and in fact, the deed uses the expressions 'daughter', 'her children' and 'descendants' while dealing with the succession of mutavalliship, and that, therefore, the document will have to be construed as if the wakif intended to benefit only his daughter and her descendants and not the heirs in general. We are unable to agree with this contention of the learned Counsel. The Wakif has used various expressions in the came document like 'children', 'heirs' and 'descendants', which show that he is aware of the distinction of these words. While disposing of the income after his lifetime he referred to his daughter, her children and while making a disposition of the income after the death of his daughter and children, he refers to heirs of his daughter and while referring to the succession to the mutavalliship, he first refers to male lineal descendants and then to female descendants of his daughter. Thus the wakif is fully aware of the distinction and we are of the opinion that he intended the income to go to the mosque ultimately, only on the extinction of all in the line of the heirs of his daughter and children and not on the extinction of his daughter, children and other descendants alone. Clearly therefore, Section 4 of the Wakf Validating Act does not make the deed valid. In the result, we hold that the deed dated 14-5-1927 did not operate as a valid wakf. If the wakf is not valid, there is no dispute that Hazaran Bi inherited the property as the daughter and that therefore, her settlement of the properties under Ex B-1 in favour of her son, mortgagor, was valid. the plaintiffs have not questioned the mortgage executed by their father on any other ground except on the ground that the property is wakf property and therefore, could not be the subject-matter of a mortgage. In view of this finding, no other point arises for consideration.
4. In the result, this appeal is allowed and the judgment and decree of the trial Court is set aside and the suit is dismissed. The appellant will be entitled to his costs in this court as well as in the trial Court against the plaintiffs, respondents 1 to 5. The appellant will pay the court-fee due to Government. The Wakf Board will bear its costs and the Counsel's fee we fix at Rupees 250/-.
5. Appeal allowed.