1. This appeal raises important questions of law, in the first place with regard to the testamentary capacity of Cutchi Memons before the passing of the Cutchi Memons Act, 1938, and in the second place with regard to the validity of a wakf which a Cutchi Memon by his will directed should be endowed by the property forming the residue of his estate. The appeal arises out of two suits filed on the original side of this Court for the administration of the estate of Hajee Sir Ismail Sait, a wealthy Mussalman of the Hanafi sect and a member of the Cutchi Memon community, who died in Bangalore on 24th April 1934. He had eight children, seven of whom survived him, as did their mother. He left a will and a codicil there-to, both of which have been admitted to pro-bate by this Court. On 6th December 1939, two of the testator's grandsons, sons of his eldest, son, filed C. S. No. 280 of 1939 for the administration of the estate in accordance with the testamentary directions given by their grandfather. On 16th December 1939, his third son filed C. S. No. 286 of 1939 for the administration of the estate on the basis that the will was invalid. The two suits were tried together by Somayya J. and this appeal is from his judgment. The relationship between the parties will be gathered from the following genealogical tree.
Hajee Salai Mohamed Sait (d. 1874)=Khatija Bai
| | | |
Sir Hajee Ismail Sait (d. 24-4-1934) Hajee Mappi Sait Fathima Bai Zynubi Bi
= Ayesha Bai (d. 1936) (died issueless)
| | | | | | | |
Abdul Sattar Amina Bai Yoonus Sait Hamid Sait Sofia Bi Dada Sait Ahmed Infant
Sait (deft. 1) (deft. 4) (d. 16-11-39) (plaintiff (died before (deft. 2) (d. 1940) son who
| | =Hathima Bi in C.S. testator) | (deft. 3) died before
Defts. 6 to 12 Alli Md. (deft. 5) 286/39) | Defts. 14 to 17 | testator
Sait (deft. 18) | Defts. 19 to 21 |
Sulaiman Sait (deft. 13) |
Ismail Ahmed Sait Marium Ahmad Sait
(deft. 28) . (Mary Olive) (deft. 29).
2. The descriptions are those of the parties to the second suit, all of whom were all the parties to the first suit. Admittedly the properties left by the testator had been acquired by him as the result of his own exertions. His will is dated 19th March 1934. He made specific bequests of immovable property to various religious, pious and charitable institutions and a sum not exceeding Rs. 25,000 for the erection on the lands of the Jamna Musjid in the old Poor House Road, Bangalore, of shops and business premises, which were to constitute an additional endowment of this mosque. After making bequests of moveable property to various members of his family and provision for the maintenance and education of his grandchildren, he gave these directions (clause 15):
Whereas with the object of attaining nearness to God and reward in the world to come I am desirous of making wakf of all the rest residue and remainder of my estate in the hands of my trustees not hereinbefore or by any codicil specifically disposed of or dealt with and after my trustees shall have set apart thereout sufficient to provide for the payments hereinbefore directed to be made such wakf is hereinafter called the wakf estate and shall for all time after my death be known as the 'wakf estate of Hajee Sir Ismail Sait of Bangalore' for the education, maintenance, marriage, support and other expenses of all my grandchildren now born or to be born and their descendants both male and female from generation to generation in proportion to their respective shares in my estate if the devolution thereof had been governed by the Mohamedan law applicable to the Hanafi sect in case of intestacy.
In clause 21 of the will the testator made provision for the application of the income of the wakf estate in the event of his family becoming extinct. The clause reads as follows:
In the event of the descendants both male and female of my said grandchildren becoming extinct the wakf trustees for the time being shall hold the wakf estate and the investments for the time being representing the same in trust for the following charities in such proportion as my wakf trustees shall think fit : (1) Mosques and provision for imams to conduct worship therein; (2) Distribution of alms to poor persons and assistance to the poor to enable them to perform the pilgrimage to Mecca. (3) Celebrating the death anniversaries of myself and of the members of my family. (4) Beading the Koran in public places and also at private houses. (5) Maintenance of my poor relations and dependants.
The testator appointed his second son, Yoonus and two others who wore not members of the family as his executors and his eldest son Abdul Sattar, Yoonus and one Abdul Sattar Abba of Mysore to be the first trustees and Muttvallis of the wakf estate. Only Yoonus proved the will. The codicil is not of importance. It is common ground that it relates only to the school fees of a deceased grandson and that it stands or falls with the will. Cutchi Memons are the descendants of Hindus who were forcibly converted to Mohammadanism some 400 years ago. In spite of their conversion, they retained the Hindu law of succession and inheritance and, generally speaking, their descendants continued to adopt as their personal law the Hindu law in such matters until the Cutchi Memons Act of 1988 was passed. The plaintiff averred that the family had elected to be governed by the Mohamedan law in matters of succession and inheritance and therefore the testator was unable to dispose of more than one-third of his estate by will. The plaintiff also challenged certain of the legacies and the validity of the wakf. His case in all respects was strongly opposed by defendant 1 and his sons. They maintained that the testator had full disposing power and that the will was valid in its entirety. The plaintiff is supported by defendants 2, 3, 4, 5, 28 and 29. All the other members of the family support in the main defendant 1 and his sons. The two questions of importance are whether the testator had power to dispose of the whole of the estate by will or whether his power was limited to the Mohammadan rule of one-third and whether he created a valid wakf in respect of the residue of his estate. There were numerous other questions raised below, but, in the view which we take of the case, it will not be necessary to discuss the other questions, save one which is raised in a memorandum of cross-objections filed by defendant 5.
3. The testator's father migrated from Cutch to Bangalore in 1870 and ever since the family has resided in Bangalore. The learned Judge rejected the plaintiff's contention that the family had elected to be governed by Mohamedan law and held that it had retained the personal law which the testator's father brought with him from Cutch in 1870. This finding is not challenged. Indeed, it could not be in view of the testator's statement in his will that he had not made a declaration under the Cutchi Memons Act, 1920. That Act permitted a Cutchi Memon to make a declaration that he desired to obtain the benefit of the Act and thereafter the declarant and all his minor children and their descendants were to be governed in matters of succession and inheritance by the Mohamedan law. The learned Judge went on, however, to hold that, notwithstanding that the Cutchi Memons retained the Hindu law of succession and inheritance, the testator was governed by the Mohamedan law with regard to testamentary power. He considered that, as at the time of the conversion of Cutchi Memons the Hindu law did not recognise wills, they presumably adopted the Mohamedan law in this respect. The appellants are defendant 1 and his sons. They maintain that the learned Judge erred in holding that the testator's testamentary power was restricted to one-third of his estate. With regard to the wakf, Somayya J. held that it was invalid, but that its endowments must be limited to one-third of the residue of the immovable property. He considered that there could be no dedication of moveable property. The plaintiff has filed a memorandum of cross-objections in which he says that the learned Judge should have held the wakf to be invalid in its entirety.
4. It may be mentioned that since the passing of the Cutchi Memons Act, 1938, all Cutchi Memons are in matters of succession and inheritance governed by the Mohamedan law. The Court can, however, only have regard to what was the personal law of the testator at the time of his death, and that law was undoubtedly the law of Cutchi Memons in Cutch in 1870. See Abdurrahim Haji Ismail Mithu v. Halimabai A.I.R. 1915 P.C. 86 and Mohammed Ibrahim Rowther v. Shaik Ibrahim Rowther A.I.R. 1922 P.C. 59. There have been several cases decided by the Bombay High Court with regard to the testamentary power of Cutchi Memons and these we shall examine presently. Before doing so, however, we will refer to the will-making power of Hindus generally, as this has an important bearing on the case.
5. The origin of testamentary power among the Hindus is discussed at length in the Edn. 9 of Mayne. There is reference to this matter in the latest edition of the work, but Edn. 9 is more helpful. In Edn. 9 at page 566 it is pointed out that, while the idea of a will is wholly unknown to Hindu law and the native languages do not even possess a word to express the idea, yet there can be no doubt that from the earliest period of our acquaintance with India we find traces of a struggling towards the testamentary power, often checked, but constantly renewed. The right of a Hindu to make a will in respect of his self-acquired property was recognised first in Bengal, then in Bombay and then in Madras. It can safely be taken that long before the testator's father left Cutch the right of Hindu to make a will of his own property was recognised, throughout Hindustan. Consequently it is said by the appellants, and with reason, that testamentary power had before 1870 become embodied in the Hindu law and all those who were governed by the Hindu law in matters of succession and inheritance had the right of exercising the power. The law of wills is part of the law of inheritance as the Bombay High Court pointed out in Mancharji Pestonji v. Narayan Lakshmanji (1862) Bom. H.C.R. 77. As this case in this connexion is mainly concerned with the position on the Bombay side of India the following extract from the judgment of Westropp J. in Narottam Jagjivan v. Narsandos Harkisandas Bom. H.C.R. (A.C.) 6 delivered in 1866 is relevant:
In the Supreme Court the wills of Hindus have been always recognised, and also in the High Court, at the Original Side, whatever questions there may formerly have been as to the right of a Hindu to make a will relating to his property in the Mofussil, or as to the recognition of wills by the Hindu law, there can be no doubt that testamentary writings are, as returns, made within the last few years from the Zillahs show, made in all parts of the moffusil of this Presidency; but, as might have been expected, much more frequently in some districts than in some others, and this Court at its Appellate Side has, on several occasions, recognised and acted upon such documents. That Hindus may make wills and such wills may be admitted to proof, is contemplated by Sections 1 and 13 of Act 27 of 1860, an enactment which more especially concerns the mofussil. The testamentary power of Hindus is by Lord Kingsdown in Sm. Soorjeemoney Dossee v. Denobundoo Mullick (1861) 9 M.I.A. 123 and by Knight Bruce, L. J. ibid p. 135, treated as completely established. It is, therefore, now too late to deny to Hindus in the mofussil of this presidency the right to make wills, as the District Judge has done in the present case.
The Supreme Court of Bombay was established in the year 1823 and the Bombay High Court in 1865. In Basant Singh v. Brij Rajsaran Singh , a case where the question was raised whether the customary law of the Delhi District governed the Jats of that district, the Privy Council said that such customary law found to exist in 1880 and 1910 must be taken to have the ordinary attribute of a custom that it was ancient, and, unless the contrary was proved, it must be assumed to have existed prior to 1858, when one Kushal Singh left the Delhi district. If the right of a Hindu to make a will is not inherent in his personal law, it must be taken to be a customary right, and, therefore, a right which existed long before 1870 when the testator's father left Cutch, unless the contrary is proved; and there has been no attempt to do this here. Cutch is a Native State under the political superintendence of the Government of Bombay, and Cutchi Memons move freely between Cutch and the City of Bombay. Many of them reside and trade in Bombay. In 1885 the Bombay High Court in Mohammed Siddick v. Haji Ahmed (1985) 10 Bom. 1 had to consider the question whether a Cutchi Memon could dispose of ancestral property by will, and it was held that he could not. The will of a Cutchi Memon whose father had carried on business in Cutch and Bombay was admitted to pro-bate. In the judgment in that ease Scott J. said that Cutchi Memons appeared as litigants in 1847, but for over 30 years the community had wisely abstained from litigation. The judgment then proceeds:
But although the reports contain no decisions between 1847 and 1881 concerning Cutchi Memons, there have been many concerning a similar Mahomedan sect, the Khojas, concerning whom in Shivji Hasam v. Datu Movaji Khoja (1975) 12 Bom. H.C.R. 281 the late Chief Justice and West J. held it to be settled law that, 'in the absence of settled evidence to the contrary, the Hindu law is applicable to matters relating to property, inheritance and succession among Khoja Mahomedan.' As regards the Cutchi Memons themselves, there is considerable evidence of another character, which shows it to have been their practice also to follow Hindu law as their own law of inheritance. In almost every application for letters of administration, and in the carrying out of almost every will made by the community during that time, the Hindu law has been followed. As early as 1845 this very family, whose members are now litigating, divided the family property, amounting to nearly three lakhs of rupees, according to Hindu rules. In a series of exhibits put in by Mr. Starling, Hindu law is evidently considered the governing law of the sect. Thus out of 60 Cutchi Memon wills on the list furnished by the Ecclesiastical Registrar, in only one, (No. 38) the principles of Mahomedan law seem to have guided the Registrar.
In 1915 in Advocate-General of Bombay v. Jimbabai A.I.R. 1915 Bom. 151, Beaman J. held that Cutchi Memons had acquired by custom the right of disposing of the whole of their property by will, but he considered that a Cutchi Memon's will should be construed by reference to Mahomedan law. The latter part of this opinion has not found acceptance in later cases and it must be taken that the Bombay High Court now interprets wills of Cutchi Memons in accordance with the Hindu law. In Abdulbaker v. Abubaker : AIR1930Bom191 , Mirza J. strongly criticised the judgment of Beaman J. and refused to follow it. He was firmly of the opinion that a Cutchi Memon's will should be construed according to Hindu law. The question was raised before a Bench of the Bombay High Court in 1935 in Adambhai v. Allarakhia : AIR1935Bom417 and the opinion of Mirza J. was accepted. The question was also raised in this Court in Siddick Haji Abubaker Sait v. Ebrahim Haji Aboobuker Sait A.I.R. 1921 Mad. 571, where after an exhaustive examination of the authorities, Kumaraswami Sastri J. held that Cutchi Memons were governed by the Hindu law. They could, he found, dispose of self-acquired property by will, but not joint family property. Mr. Sitarama Rao on behalf of the plaintiff says that while the right of Cutehi Memons residing in Bombay to make wills has been recognized, it does not follow that Cutchi Memons in Cutch had this right in 1870 and that there has been no attempt in this case to prove that was the position in Cutch in 1870. It hardly lies in the plaintiff's mouth to say this. It was no part of his case as set out in the plaint. There he pleaded that the testator was governed by Mahomedan law and not by Hindu law and the parties went to trial on this basis. After the evidence had been closed, Mr. Sitarama Rao was briefed to address the Court on the case. He had not appeared in it before then. He was allowed by the learned Judge to take the point, but the correctness of the learned Judge's decision in this respect is certainly open to question as it had never been suggested at any previous stage that there was a difference in the law governing Cutchi Memons living in Cutch and Cutchi Memons living in Bombay. We are not prepared to accept the argument. Cutch is only some 250 miles from the City of Bombay and as we have already pointed out, it is under the political superintendence of the Governor of Bombay and free movement takes place between the two places.
6. It is now firmly established that Cutchi Memons are governed by Hindu law in matters of succession and inheritance and the right of a Hindu to dispose of his self-acquired property by will is equally firmly established throughout India. As Cutchi Memons are governed by the Hindu law in matters of inheritance, and as the law of wills is part of the law of inheritance, they must be held to have the same right as Hindus of disposing of their personal property by will unless there is a custom to the contrary, which has not been proved. In fact there has been no attempt to prove such a custom. On the other hand, the Bombay High Court has expressly recognized the right of Cutchi Memons to make wills, and this Court has done the same. For the reasons indicated, we hold that the testator is governed by the Hindu law of inheritance and succession; that the testator had full testamentary power over the property of which he died possessed, and that the will must be construed according to Hindu law, except in so far as it operates to create a wakf. Learned Counsel in the course of the arguments agreed that if the Court should hold that the testator had full testamentary power, the only substantial question left would be with regard to the validity of the wakf. The plaintiff says that the wakf is invalid for these reasons : (1) There was no immediate vesting of the wakf property in the wakf trustees; (2) as the endowment was to consist of the residue of the estate, there was uncertainty with regard to the property; (3) the Mahomedan law does not recognize a dedication of moveable property; and part of the residue must consist of moveables; and (4) the celebration of the death anniversaries of the testator and of the members of his family, the reading of the Koran in public places and private houses, and the maintenance of the testator's poor relations and dependants, are not recognized by Mahomedan law as valid objects of wakf.
7. Although the learned Judge held in favour of the validity of the wakf in so far as the endowment consisted of immovable properties which were included in the residue of the estate he did not consider that the wakf trustees would be justified in devoting any of the income for the advancement of the testator's descendants or for marriage expenses. It has been agreed that if this Court holds that the wakf is otherwise valid, it will be lawful for the trustees to make advancements out of the income should they think fit and to make payments on account of marriage expenses. It is conceded by the contesting defendants that as the testator's testamentary powers were those of a Hindu, he could not by his will have created a wakf had the Mussalman Wakf Validating Act, 1913, not been passed. In a number of cases, the Privy Council had held that a Mahomedan could not make a wakf of his property when the primary object of the dedication was to benefit his descendants. Mahomedan lawyers did not accept the correctness of this ruling and as their opinion conformed to the wishes of the Mahomedan community the Validating Act was passed in order to allow a Mahomedan to create a wakf for the benefit of his descendants. Section 2 of the Act defines 'wakf' and 'Hanafi Musalman.' It says that 'wakf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable and that 'Hanafi Mussalman' means a follower of the Mussalman faith who conforms to the tenets and doctrines of the Hanafi School of Mussalman law. Section 8 reads as follows:
It shall be lawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of Mussalman law, for the following among other purposes:
(a) for the maintenance and support wholly or partially of his family, children or descendants; and
(b) where the person creating a wakf is a Hanafi Mussalman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated:
Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character.
Section 4 says that no such wakf shall be deemed to be invalid merely because the 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. We agree with the learned Judge that the wakf is not invalid because the will does not immediately vest the residue of the estate in the wakf trustees, and that there is no uncertainty with regard to the property dedicated. Clause 17 of the will directs that the executors, whom the testator describes as his trustees, shall transfer to the wakf trustees the residue of his estate as soon as they can conveniently do so. Having ascertained the debts due by the estate, it would be a very simple matter for the executors to ascertain what the residue would consist of. It would consist of what remained after providing for the payment of the debts, the delivery to the legatees of their bequests and the setting aside of sufficient property to comply with the testator's directions with regard to the maintenance, education and marriage expenses of his grandchildren. Mr. Sitarama Rao has agreed that the only grandchildren who are entitled to the benefit under these directions are the grandchildren who were born during the lifetime of the testator. In Pathukiatti v. Avathalakutti (1990) 13 Mad. 66 Muthuswami Ayyar J. made these observations:
The dedication should not depend on a contingency and the appropriation must at once be complete and not suspended on anything. Baillie, at p. 556, gives an illustration, observing if one were to say 'my mansion is a charity appropriated to the poor if my son arrives,' and the son should arrive, the mansion does not still become wakf. He adds, if one should say this, 'my land is charity if such a one pleases,' and if the person referred to should indicate his pleasure, still the wakf would be void. I take the reason to be that at the time of settlement there was no absolute or complete appropriation in the sense that no proprietary interest was reserved and that the property was effectually constituted to be charity property. I do not desire to be understood as saying that the interposition of an intermediate estate limited in duration would invalidate the creation of a wakf, provided that there was an out and out appropriation at the time of the settlement. In that case, the appropriation to religious use would only be deferred so long as the interposed estate continued and there would be no reason for saying that the religious appropriation might fail altogether.
These observations were quoted with approval by. the Allahabad High Court in Khaliluddin v. Sri Ram : AIR1934All176 , where it was held that when a wakf is challenged as being invalid because it constitutes a contingent dedication the test is to see whether the dedication was complete at the time it was made and not dependent on an event which might or might not happen. In Rustam Ali Khan v. Mushtaq Hussain : AIR1916All68 the Allahabad High Court held that a wakf was not invalid because the creator had directed that the income of the estate should be devoted in the first instance to the paying off of a mortgage debt on the property. This case went to the Privy Council, Rustom Ali Khan Mohamed v. Mushtaq Hussain A.I.R. 1921 P.C. 105, but the question was not raised there. The inference is that the point was not taken because it was obviously unsustainable. In 'Tudor on Charities' it is said (Tudor on Charities, Edn. 5, page 61):
If the gift to charity is residuary upon a void gift, the general rule is that it fails if the Court finds that the precedent gift is of unascertainable amount. But the charitable gift is valid if the subject-matter needed for the precedent gift can be reduced to certainty by means of an inquiry.
The cases on which this statement of the law is based are given in the foot-note. In the present case the residue of the estate was readily ascertainable and the executors were directed to deliver it over to the wakf trustees with all convenient speed. In these circumstances, it cannot in our judgment be said with reason that there was uncertainty with regard to the property dedicated or that the dedication was subject to a contingency. The next question is whether the dedication of that part of the residue which consists of moveable property is unlawful. Before the passing of the Mussalman Wakf Validating Act, it was the view of this Court and of other High Courts in India, except the Allahabad High Court, that there could not be a valid' dedication to wakf of moveable property, unless it were accessory to land or allowed because of certain traditions concerning the prophet and the secred writings or there was a custom to make wakf of it: see Kadir Ibrahim Rowther v. Mohamed Rahamatulla Rowther (1910) 33 Mad. 118. The contesting defendants say that all this has been changed by the Validating Act of 1913 and we consider that there is great force in this argument. A 'wakf' is there defined as the permanent dedication of 'any property' for any purpose recognised by the Mussalman law as religious, pious or charitable. On behalf of the plaintiff it has been said that as the object of the Act was to make lawful dedications of property for the benefit of the descendants of the creator of the wakf it cannot be taken to alter the law in any other respect. The Court can, however, only have regard to the wording of the sections in the Act when no ambiguity exists. While it is true that the primary object of the Act was that just mentioned it was necessary to define 'wakf' and the definition must have general application. There cannot be one definition of wakf when the object falls within the Act and a different definition when it does not. In any event this wakf falls within the Act and we hold that the fact that the property dedicated includes moveable property does not in any way affect its validity.
8. This brings us to the question of the validity of the five objects for which the wakf trustees can devote the income in the event of the family becoming extinct. All these objects are included in the list given in Mulla's 'Principles of Mahomedan law' as valid objects of wakf. It is common ground that the first two objects are valid. The third object is celebrating death anniversaries of the testator and the members of his family. In Ramanadham Chettiar v. Veda Levvai Marakayar (1911) 34 Mad. 12 this Court held that the performance of fateha which so far as it involved the expenditure of money consisted in feeding the poor, was a valid object of wakf. The judgment in that case was approved by the Privy Council in Ramanadham Chettiar v. Veda Levvai Marakayar A.I.R. 1916 P.C. 86, where their Lordships pointed out that part of the fateha ceremony was to feed the poor. In Kaleloola Sahib v. Nuseeruddeen Sahib (1995) 18 Mad. 201 it was held that a wakf by a Mahomedan lady for the upkeep of her husband's tomb and
for the daily, monthly and annual expenses of the aforesaid Mausoleum, such as lighting, frankincense, flowers, and the salaries of repeaters of Koran and readers of benediction, etc., as well as for the annual fateha ceremonies of the deceased and after my death for my annual fateha ceremony.
was not valid as it ran contrary to the rule against perpetuities. In Kunhamkutty v. Ahmad Mudaliar A.I.R. 1935 Mad. 29, it was pointed out that in view of the decision of the Privy Council in Ramanadham Chettiar v. Veda Levvai Marakayar A.I.R. 1916 P.C. 86 this decision could no longer be considered good law. We hold that the observance of the anniversaries of the deaths of the testator and members of his family, involving as it does the feeding of the poor, constitutes a valid object of the wakf. The fourth object is the reading of the Koran in public places and also at private houses. Here the plaintiff relies on the judgment of Stanley C.J. in Mazhar Hussain Khan v. Abdul Hadi Khan (1911) 33 All. 400 and the judgment of this Court in Kunhamkutty v. Ahmad Mudaliar A.I.R. 1935 Mad. 29. In the former case Banerji J. held that where a substantial portion of the income of the wakf property was devoted to the expenses of the annual fateha of the founder and the members of her family, the annual expenses of burning lamps in a mosque and the salary of Hefiz and readers of the Koran the wakf was valid. Stanley C.J. doubted the validity of such a foundation. In the second case this Court held that the dedication of property for the purpose of providing funds for the recitation of Koran over the tomb of a private person, although be a descendant of the prophet, did not create a valid wakf. On the other hand, the defendants rely upon the provisions of the Validating Act and the following passage to be found in Ameer Ali's work on Mahomedan law; (Ameer Ali's Mahomedan Law, Vol. I, p. 273):
The words 'piety' and 'charity' have a much wider significance in Mussalman law and religion than in any other system. Khair, birr, ishan, etc., include every purpose which is recognised as good or pious under the Mussalman religion and the Mussalman law; and the test of what is 'good' or 'pious' or 'charitable' is the approval of the Almighty. Every 'good purpose' (Wajah-ul-khair) which God approves or by which approach (Kur bat) is attained to the Deity, is a fitting purpose for a valid and lawful wakf or dedication. A provision for one's self, for one's children, for one's relatives, is as good and pious an act as a dedication for the support of the general body of the poor.
This is not a case of the founder of wakf merely directing the Koran to be read over' his tomb and therefore does not fall within Kunhamkutty v. Ahmad Mudaliar A.I.R. 1935 Mad. 29. The reading of the Koran in public and private places can only be regarded as religious and pious and it seems to us that it must also be regarded as charitable, for the reading is for the benefit of all Mussalmans. The fact that money may be expended on the reading of the Koran in private places as well as in public places does not detract from the religious, pious and charitable character of the object. The fifth object is the maintenance of poor relations and dependants. The decision of the Allahabad High Court in Mukarram Ali v. Mt. Anjumanunnissa Bibi A.I.R. 1924 All. 223 is directly in point here. In that case it was held that a wakf created for the reading of fateha and for charitable purposes including the maintenance of the founder's poor relations and dependants was valid according to Mahomedan law. Strong support for the validity of this provision is also to be found in Baillie at page 586 and Ameer Ali, Vol. 1 at p. 370. We agree with the learned trial Judge that this is a valid provision according to Mahomedan law.
9. But even supposing that the last three objects are invalid, this would be no ground for holding that the wakf failed. Ameer Ali points out (vol. 1, p. 414) that the cypres doctrine is carried to the utmost limit in the Mussalman system. In Ruqia Begum v. Surajmal : AIR1936All404 , the Allahabad High Court expressly held that if one of the objects was good and one bad, the whole of the income could be devoted to the good object. With this opinion we are in agreement. It follows that in our judgment the testator created a valid wakf in respect of the residue of his estate for the object set forth in his will and that the estate must be administered in accordance with the testator's directions. Consequently, the appeal will be allowed and the plaintiff's memorandum of cross-objections dismissed. The appellants and their supporters will have one set of costs out of the estate and the plaintiff and his supporters another set of costs, also out of the estate. We certify for two counsel. The plaintiff's memorandum of cross-objections will be dismissed without costs. The memorandum of cross-objections filed by defendant 5 has reference to the gift of jewels which the testator made to his second son Yunus. At page 109 of the evidence the learned Judge caused the following note to be made:
There were two boxes in an iron safe in the Essex Lodge. Under Clause (13) of the will Sir Hajee declared that he had already made a gift of the jewels in one box to Yunus and the jewels in the other box to Dada. Defendant 5 claims the jewels said to have been gifted to Yunus and defendant 2 claims his jewels contained in one of these boxes. All the parties now agree through their advocates that these jewels claimed by Yunus's widow, defendant 5 and by defendant 2 may be declared to be theirs. They all say that they do not lay any claim to them. The plaintiff says that he does not recognise their claims to these jewels under the will but even apart from the will, they are entitled to them and they may have them. Therefore their claim to this jewellery need not be tried and no evidence is recorded about it.
Defendant 5 is the widow of Yunus. At page 179 of the judgment the learned Judge says:
As regards the jewels which are alleged to have been gifted to the late Mohammed Yunus by Sir Hajee, the written statement of defendant 5 states that the gift was made long prior to the death of Sir Hajee and that the gift was valid. This is what was conceded by all parties at the time of the trial. The result of this is not that the jewels in question can be handed over to defendant 5 solely but to all the heirs of the late Yunus, of whom defendant 5 is one.
10. Defendant 5 states that the note made by the learned Judge in the course of the evidence constitutes an agreement between all the parties that she personally was to have the jewels. We do not agree. The paragraph which we have quoted from the judgment shows that the learned Judge only intended that defendant 5 was to have the jewels handed to her as representing the estate of her deceased husband, and this course will be followed. The memorandum of cross objections filed by defendant 5 is dismissed, but we do not think it necessary to make any additional order for costs. The agreement with regard to the Calcutta Distillery shares referred to in the last paragraph of page 175 of the judgment of Somayya J. stands. The estate will be administered by the receivers in accordance with our judgment. If any directions are required they will be given on application by the receivers to the original side.