P.N. Mookerjee J.
1. This appeal is by the Commissioner of Wakfs, West Bengal, who was defendant No. 8 in the declaratory suit, out of which the appeal arises. The suit was brought for a declaration that a deed, dated March 6, 1944, which is Ext. 1 in the case, was not a valid deed of wakf according to the rules of Mohammedan Law or under the Mussalman Wakf Validating Act, 1913, namely, Act VI of 1913. There were also other prayers in the plaint but, with them, we are not concerned in this appeal as it is not disputed before us that if the declaration in terms of the above first prayer, as made by the court below, be legal and valid, its decree should be affirmed. This is primarily because the said other prayers did not really affect the present appellant and the persons who might have been affected by the same did not object to the decreeing of the suit and have not preferred any appeal to this Court.
2. The learned Subordinate Judge has held that the purported wakf, sought to be created by this deed (Ext. 1), was hit by the rule of contingency which invalidates a contingent wakf & accordingly, he has given the plaintiff the declaration, sought for in his above first prayer. The propriety of this decision is challenged by the appellant, Commissioner of Wakfs, in this appeal.
3. In our view, the learned Subordinate Judge is right in his decision on the point, noted above, as it is quite clear from the relevant provisions of the deed (Ext. 1) that the ultimate gift or benefit to charity, which is a requisite for the validity of the wakf and which could be postponed for any length of time -- & so too remote and uncertain and even illusory, -- in the case of a wakf by way of family settlement under the Mussalman Wakf Validating Act, 1913, was not merely postponed in this case but was made to depend really upon a contingency which may never happen. It is clear from the provisions of the deed (Ext. 1) that it is only if Noor Banu died without leaving any issue that the ultimate gift to charity would take effect. Except in that contingency, this gift would never take effect. In such circumstances, it is almost beyond controversy that the rule of contingency which hits a wakf under the Mohammedan Law would affect the present disposition. That would be the position under the general law of wakfs under the Mohammedan system of jurisprudence and the position in that respect is not altered by anything in the Wakf Validating Act. That Act, undoubtedly, authorises or sanctions a postponement of the ultimate gift to charity which would not have been valid under the general law. It does not, however, abrogate the rule of contingency.
4. In the above view, it is not necessary for us to consider the other submissions of Mr. Sen Gupta on the strength of the decision of Chagla J., as he then was, in the case of Abdul Karim v. Rahimabai, AIR 1946 Bom 342 A., which was cited In support of the proposition that the provision here not being merely for the maintenance and support of the settlor's family but being in the nature of an absolute gift or income to the particular donees would not constitute a valid wakf under the Wakf Validating Act. It is not necessary for us to express any opinion on this part of the case, as, in our view, the reason, given by the learned Subordinate Judge, which we have discussed and dealt with In the preceding paragraph, and the statement, made above, of the rule of contingency and its effect on the disputed deed (Ext. 1. would be enough for the dismissal of this appeal. In that view, we do not also deem it necessary to consider whether the charity under the deed (Ext. 1) is of a permanent character.
5. We, accordingly, dismiss the appeal, but, in the circumstances of this case and having regard to the question involved, we would direct the parties to bear their own costs in this Court.
P.K. Sarkar J.
6. I agree.