1. These two connected Appeals Nos. 80 and 38 of 1939 arise out of a suit for the possession of a 1/3rd share in the properties mentioned in the schedules to the plaint upon a declaration that the two wakfnamahs Exs. 1 and 1 (a) executed by one Dewan Ganiur Reza Choudhury on 17th July 1930 and 24th September 1930, respectively were void and inoperative and that plaintiff 1 was entitled to the aforesaid share as an heir under the Mahomedan law of inheritance and to recover mesne profits; the other plaintiffs 2 to 75 claimed to be the lessees of some of the properties under plaintiff 1 but subsequently failed to prove their leases. Defendant 1, the mutwalli contended that Exs. 1 and 1 (a) were valid deeds of wakf while defendant 2 (son of defendant 1) asserted that certain 'purchases made by him of the wakf properties were in good faith and for valid consideration and supported defendant 1; defendants 3 to 9, the recipients of certain allowances under the wakf, also sided with defendant 1; defendants 10 and 11 however joined plaintiff 1 in impugning the validity of the wakfs. The relationship of plaintiff 1 and the defendants appears from the genealogical table set out at p. 367 of the paper book in Appeal No. 38 and it is not necessary to restate the same here or to set out in detail the facts of the case or the contentions of the respective parties as the scope of the appeals before us is of a very limited character.
2. The trial Court decreed the claim of plaintiff 1 except the claim in respect of mesne profits as against defendants 1 to 9 and defendants 1 and 2 thereupon preferred the present appeals--Appeal No. 80 being the appeal of defendant 1 and Appeal No. 38 the appeal of defendant 2. Defendants 10 and 11 filed cross-objections in Appeal No. 38 and plaintiff 1 filed cross-objections in Appeal No. 80. In Appeal NO. 80 of 1939, the points urged on behalf of defendant 1 were (1) that the Court below ought to have held that the two wakfnamahs were legal and valid documents; (2) that in any case it should have held that the provisions for allowances etc., in the wakfnamahs were in the nature of a trust and should have given effect to the same, (3) that the properties should at least have been charged by ascertaining the proper sum out of the income of one or two annas mentioned in Exs. 1 and 1 (a) for meeting expenses upon objects which may be considered to be proper and lawful objects of wakfs after separating the same from those which may be regarded as unlawful under the Mahomedan law. The wakfnamahs have been placed before us and we have looked into them with some degree of care. In Ex. 1 the purpose of the wakf is stated as follows:
None among my heirs is fit to manage the zamindari. I do not expect that my properties will be preserved by them in future. For the purpose of keeping intact and undamaged all my properties and the good name and fame of my ancestors, now and in future, I willingly and being in perfect senses and independent opinion dedicate as wakf for pious and noble purposes under the terms mentioned below etc., etc.
Under the deed defendant 1 is appointed mutwalli and is directed as 'bound in every way and always to act according to the rules laid down below': Certain allowances are fixed and provision is made for their disposal upon the death of the recipients; 'from the income of the one anna share' of the wakf lands it is directed
that the expenses of sinnis (offerings of food) ziarats, offering of lights, readings of the koran, cleaning of the graves of any forefathers keeping them neat and making them pucca and giving lights thereon shall be paid; besides these from the said income Musjid will have to be built and help will have to be given to poor relatives and to the blind and indigent persons.
It is further provided therein that for the debts of the wakf
the mutwalli, for the benefit of the wakf estate, will be entitled, at his own will, to sell any lands out of the properties constituted into wakf... and repay the debt
that the debts 'will have to be repaid out of the surplus that will remain.' After defraying the expenses mentioned in the wakf and paying revenue, rates, rents, taxes etc., that the mutwalli will be entitled to spend the 1/4th share of the surplus that will remain after repaying debts and defraying expenses mentioned in the wakf
for the maintenance of his own family and to purchase other properties from the balance of the income and the properties newly purchased will be treated as wakf property and the income thereof will be spent in the manner described above
that 'no mutwalli will ever be entitled to violate the rules mentioned in the wakf which were laid down 'being actuated by pious and holy intention.' In Ex. 1 (a) the provisions are similar to those laid down in Ex. 1 above; the purpose is the same and as in Ex. 1, authority is given to the mutwalli to sell wakf property for repayments of the debts of the wakif and to take 1/4th share of the surplus for maintenance and invest the balance in purchasing new properties, the only substantial difference being that instead of one anna of the income, two annas have to be devoted for the expenses of sinnis, ziarats, offering lights, reading koran, erecting Musjid, helping poor relatives and students etc. Apart from the fact that lawful and unlawful objects for making a wakf are mixed together in Exs. 1 and 1 (a) it is obvious that the dominant intention is not of a pious or charitable nature but is for the preservation and augmentation of family property and the perpetuation of family name and fame. There is no substantial dedication to pious, religious or charitable objects as 10 or 11 annas of the income of the wakf is always to be accumulated for the purpose of buying new property and making the same into wakf and again treating the income from it in a similar manner--there is no express or implied ultimate gift reserved for the poor or for pious, religious or charitable objects. In my opinion the decision of the Court below that the wakfs fail both under the Wakf Validating Act of 1913 as also under the law prior to it, is correct.
3. As to the second contention that the provisions for payment of allowances etc., should have been given effect to, as being in the nature of a trust, I am unable to agree that upon the failure of the wakf the transaction could be regarded as a trust; defendant i was merely a mutwalli or a manager and when the heirs came in by right of succession under the law, they could not be held bound by the directions in the invalid wakfs--the allowances etc., must stand or fall with the wakfs; it is also worth noting that the allowances are to come out of the future income of the property and in respect thereof there could be no delivery of possession to constitute the same into gift upon the failure of the wakfs: vide the cases in Amtul Nessa Begum v. Mir Nirudin ('98) 22 Bom. 489 and Mohammad Abdul Gani v. Fakhr Jahan Begam ('22) 9 A.I.R. 1922 P.C. 281 in this connexion. The case in Khajeh Suleman Quadir v. Salimullah Bahadur ('22) 9 A.I.R. 1922 P.C. 107 relied upon by the appellant is clearly distinguishable, there although the wakf was held to be invalid, a later contract for valuable consideration by which certain persons were given annuities was held to be valid being outside the scope of Mahomedan law.
4. In the present case before us, the allowances are not founded upon any contract or family arrangement they must therefore fall to the ground along with the wakfnamahs. In the above view of the matter, the broad question whether annuities or life estates can be created by Sunni Mussalmans through the medium of a trust need not be decided in the present case but perhaps it would not be out of place just to point out in this connexion the following observation of their Lordships of the Judicial Committee in Mt. Humeeda v. Mt. Budlun ('72) 17 W.R. 525
upon what grounds then ought it to be held that what the son gave up, he gave up for only the life of his mother, retaining the legal reversion in himself The creation of such a life estate does not seem to be consistent with Mahomedan usage, and there ought to be very clear proof of so unusual a transaction.
As stated above, I do not think it is necessary to deal with this question and it may be left open for a more suitable occasion. In support of the last contention that the expenses for valid objects of the wakfs should have been separated and charged upon the property, the cases in Mohamad Kazim v. Ali Saghir ('32) 19 A.I.R. 1932 Pat. 33 at p. 325 and Sheik Mohomed Ahsanulla v. Amarchand Kundu ('90) 17 Cal. 498 have been relied upon by the learned advocate for the appellants. In my opinion, these cases are not of much assistance to him. They were cases in which the prayer made was for a declaration that the properties specified were wakf properties; in Mohamad Kazim v. Ali Saghir ('32) 19 A.I.R. 1932 Pat. 33 the document was found to create a valid wakf but one of the questions raised there was with regard to the validity of the provision for Syed Shah Gholum Moula and his family, even assuming that the said provision did not fall within the purview of legal objects for wakf it would be regarded merely as a non-charitable purpose and not an illegal object. In Sheik Mohomed Ahsanulla v. Amarchand Kundu ('90) 17 Cal. 498 the High Court thought that although 'the intention of the deed was not to create an entire wakf of the properties' it was
to create a charge on them for the maintenance in the customary manner of the brick built Musjid and of two Madrassas and Sadir Wazid (travellers).
It appears that the charitable outlays there were of a small amount and it is not unlikely that no controversy on appeal before the Judicial Committee centred round this question as their Lordships merely affirmed the judgment of the High Court in this respect. In the present case there is a mixing up of legal and illegal objects and there is no general overriding trust for charitable purposes to support the wakfs. See 35 Masuda Khatun v. Mohamad Ibrahim : AIR1932Cal93 however having regard to the nature of the suit, the issues framed and the evidence adduced by the parties I think that this matter should be left open for decision in a properly constituted suit. In the result I dismiss this appeal but make no order as to costs.
5. In Appeal No. 38 of 1939 the main points urged by the appellant are (1) that the Court below is in error in including in the decree passed in favour of the plaintiff item 3 of Schedule 3 of the amended schedule to the plaint which was sold by defendant 1 mutwalli for the benefit of the wakf, in the exercise of powers reserved under it, to two persons Ashraff Ali and Jahan Ali by kobala Ex. D7/2 dated 22nd February 1933 who in their turn resold the same to defendant 2 by kobala Ex. D(8)/2 dated 14th August 1934; it is contended that although the wakfnamahs may be invalid, the property being covered by the wakfnama Ex. 1 Schedule 1 item 3 and the mutwalli being authorised 'to sell any lands out of the properties constituted into wakf' for the purposes of repaying the debts of the wakif, the trial Court was in error in not considering the matter from the point of view that Dewan Ganiur Reza Choudhury (the wakif) having put forward defendant 1 as a person having power and authority to sell his properties and pay up his debts, he and his heirs were estopped from questioning the validity of the kobala Ex. D7/2 As regards this contention I am of opinion that the authority aforesaid merely constituted defendant 1 an agent of Dewan Ganiur Reza and that the agency terminated on the death of the Principal Ganiur Reza Choudhury on 5th October 1932 the heirs thereafter came in under the law of inheritance, and when the sale took place in 1933 there was no representation by the heirs and consequently there was no estoppel against them, in fact there does not appear to me any such representation of fact even in the wakfnamah itself as could operate as estoppel; the authority that was given to defendant 1 was qua mutwalli; the wakf failing, the mutwalli and his authority automatically drop down. It is further to be noticed that no issue was framed and no reference has been made in the judgment of the trial Court as regards this matter, the contention of the appellant in this respect therefore fails.
(2) That the Court below was in error in not excluding from the decree a portion of items 6 and 7 of Schedule 2 of the amended schedule inasmuch as a 3 annas share in the same was sold to defendant 2 by his grandfather Dewan Hasan Reza Choudhury by kobala dated 24th March 1921 (prior to the wakf) Ex. D(6)/2. As to this we are not satisfied by looking at the kobala, that the subject-matter of it is the same as the subject-matter of the wakf (EX. 1, Schedule 1 items 8 and 9) and the subject-matter of the amended plaint. This contention also therefore fails.
(3) That the decree goes beyond the limits of the amended schedule to the plaint in the following respects: (a) the decree declares in favour of plaintiff 1 a 1/3rd share in maliki right in the lands of Schedules 3 and 4 of the amended plaint, although the maliki right was left out of the suit and was not in issue in this case. This requires amendment. The words 'and Schedule 3' in connexion with the maliki right and the words 'and treating the 4 annas share of the maliki right in the lands of Schedules 3 and 4 in suit as 16 annas in 1/3rd share thereof and in the 1/3rd share of the houses of Schedule 5 and maliki right in 1/3rd share of the lands of Schedule 6' and the words 'Schedules. 5 and 6 in suit and of the 1/3rd share of the houses of Schedule 5' should be deleted from the recitals in the decree; (b) the decree gives 8 annas share of the lands in Schedule 1, item 3 while the wakfnamah Ex. 1, item 14 covers only the wakif's interest without mentioning the extent of his share in this property; (c) the decree has omitted to exclude certain lands as indicated in Ex. 1(a), item 5 from Schedule 2, item 5 of the decree. The objections (a) to (c) seem to me to be well-founded and the learned advocate for the respondents concedes before us that the decree ought to be corrected regarding those matters. I therefore direct that the decree be modified to the extent mentioned above in (a) to (c). In the cross-objection of defendants 10 and 11 the only point urged on their behalf is that the judgment is inconsistent as regards certain lands in Schedules 3 and 4 of the amended schedule. It is pointed out that the learned Subordinate Judge in one part of the judgment stated:
There is no dispute about the K.B.'s title to the lands which he conveyed by Exs. 1 and 1a. In the written statement of defendant 2 he raised the contention that some of the properties included in the wakfnamahs have been gifted to him by the father of K.B. but he has failed to establish the gift. Moreover in a case like this, any question of title adverse to that of the K.B. need not be decided. Plaintiff admits the K.B.'s title and that is enough. He seeks to set aside the wakfnamahs, not on the ground that the lands belonged to him but on the ground that those were invalid. Defendants 10 and 11 have raised an issue on title with defendant 2. They say that by two kobalas Ex. D/10 and Ex. D6/10. they acquired title to some lands. Exhibit D/10 is identical with Ex. D4/2. The lands of those kobalas were sold to defendant 2 on the basis that the K.B. had purchased the same in the benami of his daughters, defendants 10 and 11. As those are not included in the wakfnamahs the questions of title as between defendants 10 and 11 on one side and defendant 2 on the other need not be gone into.
6. While in another part he stated:
The Khan Bahadur purchased the maliki right in the benami of defendants 10 and 11. Though those defendants say that they are the real owners, they are not proved to be in possession and I cannot believe that story. If the property was theirs, a father would not claim the same as his and sell the same to defendant 2. The kobala of purchase Ex. (SIC). comes from the mutwalli. A person having legitimate sons would not buy maliki right in the names of married daughters, nor was there any reason for preferring those two full sisters only. Names of two daughters of two wives, if existing might be used as. purchasers.
7. Obviously the two portions set out above are inconsistent. The latter part, therefore, beginning from the words 'the Khan Bahadur' and ending with the words 'might be used as purchasers' should be deleted and expunged from the judgment. The cross-objection of plaintiff 1 for mesne profits is not seriously pressed and is dismissed. There will be no order for costs either in Appeal No. 38 of 1939 or in the cross-objections in the two Appeals Nos. 80 and 38 of 1939.
8. I agree.