1. The question involved in this appeal is whether a Mahomedan lady, Shabebzadi Fatima Begam, had a saleable interest in a moiety of premises known as No. 63, Dhurrumtollah Street which the plaintiff claims to have bought in execution of a mortgage decree in Suit No. 527 of 1908.
2. The suit has been dismissed by Imam J., and from his judgment the plaintiff has appealed.
3. The decision, of this suit depends upon whether or not this property has been validly dedicated as wakf or not. If it has, then the suit must fail.
4. The dedication is said to have been effected by a document of the 16th July 1864. It is in the form of an English Indenture and is expressed to be a conveyance to Fatima Begam and Fyezuddin, their heirs representatives and assigns, of the entirety of the premises now in suit, upon trust that they the said Fatima Begam and Fyezuddin their heirs or representatives or other trustees or trustee for the time being should from time to time demise the said hereditaments and premises to such persons or person on such terms and at such rent as they should think fit, and should from time to time appoint such person or persons to act as sircars or a sircar in the collection of the said rents as they should think fit with full power to discharge such n sircars or sircar and to appoint others or another in his place and should apply the rents and profits of the said hereditaments and premises first in payment of the expeuses of the collections of the said rents and profits and of the management of the salary of the said sircars or sircar and otherwise and of the execution of the trust and next in payment of the expenses of the repairs of the said hereditaments and premises and should apply the surplus of the said rents and profits after making the payments aforesaid in the due and proper observance of the annual Mahomedan festivals of the Mohorrum.
5. Fatima Begam is the defendant of that name. Fyeznddin is dead, and the other defendants are his representatives.
6. On the 20th of September 1907, Fatima Begam executed a document by which there was expressed to be mortgaged to the plaintiff the half share now in suit, it being recited that she was absolutely seized and possessed of or otherwise well entitled to that half share.
7. It was on the basis of this mortgage that the decree was passed, in execution of which the plaintiff claims to have purchased this half share.
8. Fatima Begam has appeared in the suit and put in a written statement alleging the wakf character of the property. She has, however, taken no part in the discussion before Imam J. or this Court. The other defendants have appeared and contested the plaintiff's claim contending that the property is wakf, or that at any rate what they describe as their moiety is un affected by the mortgage and consequent sale. It is unnecessary to discuss any technical defect there may be in the form of the suit; the substantial question is whether there has been a valid dedication or not, and it is on these lines that the case has been fought before us.
9. The plaintiff has urged many objections to the validity of the wakf.
10. The first point made is that the gift was to Fatima Begam and Fyezuddin on a condition, and that is inoperative because the Mahomedan law does not permit a condition to be attached to a gift. The recital to the deed, however, makes clear the executant's purpose, for it runs in these terms, ' whereas the said Prince Mahommed Syeduddin is seized of or entitled to the hereditaments and premises hereinafter described for an absolute estate of inheritance and he is desirous of dedicating the same to the service of Imam Hassan and Imam Hussein and for religious purposes in the manner hereinafter mentioned.'
11. The object of the gift is plain, and the introduction of trustees is merely the employment of machinery whereby the gift is carried into effect. The trustees are not donees, and it would be far too narrow a view to hold that the gift is vitiated by a condition. Mr. Chakravarti would go the length of contending that all gifts through the instrumentality of trusts are bad. It would be difficult to reconcile that view with the language of the High Court and the Privy Council in Bishen Chand Basawat v. Nadir Hossein (1887) I. L. R. 15 Calc. 329.
12. In my opinion this objection fails, and I hold that the provision in favour of the due and proper observance of the annual Mahomedan festival is not invalidated by the introduction, of trustees as part of the machinery for carrying it into effect.
13. But then it is contended that the disposition does not constitute a wakf, and Mr. Chakravarti has relied on the decision of Delroos Banoo Begum v. Nawab Syud Ashgur Ally Khan (1875) 15 B. L. R 167. as conclusive in his favour. But this argument appears to me to rest on a misreading of the judgments of the High Court and the Privy Council in that case.
14. The defendant there dedicated the whole of her property in perpetuity and provided that the income derived from the endowment, after the payment of the Government revenue, should be divided into twenty-eight parts, fifteen parts whereof should be applied to the expense of the fatiha of Mahomed and the Imams, as well as to those of the flrst ten days of the Mohorrum and all the holidays, and the repairs of the Imambara and the tombs; seven parts should be received by the amlhas and servants, whose names should be inserted at the foot of the document in question or any other document bearing the defendant's seal and signature and which the said servants might have in their possession, some from generation to generation, and the others as long as they retain service; and the remaining six parts should be received by the mutawalis, i.e., the defendant and her co-muta-wali.
15. The plaintiffs as members of the Mahomedan community sued the defendant as the mutawali of the endowment for her removal from that office on the ground of misfeasance with the wakf estate. Leave to institute the suit was obtained under Act XX of 1863.
16. It was objected that there was no jurisdiction to grant leave, as the alleged endowment did not come within the scope of the Act, that there was no intention of creating an absolute wakf, and that the defendant was not aware of the contents and legal effect of the deed at the time of its execution. The other defences need not be noticed. In the Court of first instance the plaintiff's suit was decreed. In the High. Court this decree was reversed and the suit was dismissed on the ground that the appropriation was not of a public character and that Act XX of 1863 did not apply to it. It followed that the Judge had no authority to give the plaintiff leave to sue and that his decition was ultra vires.
17. But while the learned Judges determined that there had been no grant of laud for public purposes within the meaning of the Act read in the light of Regulation XIX of 1810, they by no means decided that the dedication did not constitute a wakf. On the contrary the Court agreed in thinking that so far as words went it was a wakf which would have bound the appropriated, but held in view of the dedicator's position as an illiterate and prejudiced woman with no professional assistance, that the dedication was not binding.
18. This is made abundantly clear by the concluding words of the judgment where it is said,-'As to the objections raised by the defendant that the wakf was indefinite and void, I think it enough to say that it, in my judgment, fully answered all the requirements of the Imameea Law, and that if it had been really and knowingly executed it would have bound Delroos Banoo Begum without the power of revocation.
19. The case was taken on appeal to the Privy Council [see Ashgar Ali v. Delroos Banoo Begum (1877) I. L. R. 3 Calc. 324.] and the judgment was affirmed on ground that the dedicator was not bound by the deed, as the precautions required in the case of pardahnashin executants were not observed.
20. There is, however, no trace of any suggestion that, apart from this, a wakf was not legally constituted, rather does the judgment indicate that its validity, apart from the executant's incapacity, was questioned.
21. I, therefore, see nothing in this case that tells against the validity of the endowment now in question, and, if anything, it is an authority in its favour.
22. And in support of the view that a wakf was legally constituted, reference may be made to Phul Chand v. Akbar Yar Khan (1896) I. L. R. 19 All. 211. Biba Jan v. Kalb Husain (1908) I. L. R. 31 All. 136. Mazhar Husain Khan v. Abdul Hadi Khan (1911) I. L. R. 33 All. 400.
23. Nor do I think that it is made out that the deed of the l5th July 1864 was a colourable transaction; indeed, the plaintiff cannot well contend that it was fictitious or had no operation, for his suit is one for partition, and it is only by virtue of this deed that any of the defendants acquired any interest in the property that would support a suit for partition. Equally futile is any argument which depends on the contention that the earlier release is open to attack.
24. The result then is that, in my opinion, a valid wakf was legally constituted and that the employment of trustees for the purpose of carrying it into effect in no way prejudiced the dedication.
25. I therefore hold that the suit was rightly dismissed, and that this appeal too must be dismissed with costs.