1. This is an appeal against a decree of the Subordinate Judge of Bhagalpore, ordering restoration to the plaintiff, respondent, as mutwali, of certain property alleged to be wuqf, which had been acquired by the defendant No. 1, appellant, by auction-purchase in execution of a decree held by the defendants Nos. 2 and 3 against the defendant, No. 4. The wuqf was created in 1872 by Shah Enayet Hossein, the late father of the defendant No. 4, and grandfather of the plaintiff The plaintiff, being a minor, the suit was, with the permission of the District Judge, instituted on his behalf by his sister, Bibi Fatema alias Bibi Nur Jehan.
2. The defendant No. 4, Shah Asudulla Saheb, is the plaintiff's father.
3. When the property was attached in 1873, the debtor filed a claim on behalf of the present plaintiff, objecting that the property was wuqf, and not liable to be sold, the debtor being only the manager thereof during the minority of his son, the mutwali. That claim, however, was rejected, and the sale took place on the 7th of August 1878.
4. The judgment of the lower Court, after setting out the pleadings, held, that the suit was maintainable as brought; that the wuqf was a valid one in all respects; and that the purchaser at auction had acquired no right under the sale.
5. The contentions urged before us in appeal have been, first, that the suit was not maintainable by Ommutul Fatema as next friend to the minor plaintiff, and that there must be a formal order of the Court appointing a guardian ad litem; secondly, that the alleged wuqf is not a valid one under Mahomedan law; and thirdly, that the wuqfnama was never intended by Enayet Hossein, the maker of it, to be operative, and that, in fact, the property has always continued to be enjoyed and used as the means of support of the family.
6. As to the first point we think that the objection is not well founded. It was first assumed by the pleader for the appellant that the minor's father, the defendant No. 4, was his certificated guardian under Act XL of 1858. But it seems that this is not so; and we consider that the District Judge, who undoubtedly had jurisdiction to try this suit, was competent, under Section 3 of the Act, to allow it to be instituted by the minor's sister, he considering that the father had neglected his interest in respect of the property in suit.
7. The next question is, whether or not the wuqf is a valid one according to Mahomedan law. There has always been a good deal of controversy in the Courts as to what is essential, and as to what will invalidate a wuqf. On the one hand, it has been contended that no wuqf is valid unless it is solely and wholly for pious and charitable purposes enduring throughout all times; and on the other hand, there have been those who considered that what is practically a perpetual provision for the dedicator's family may be a valid wuqf.
8. The fact that the Subordinate Judge who tried this case is himself a Mahomedan gentleman of considerable attainments in Arabic learning, entitles his opinion to peculiar weight in a case of this nature; and he appears to have entertained no doubt, whatever, as to this wuqf being of a thoroughly legitimate character as to its constitution and objects. And singularly enough, the only matter which strikes us as one in respect of which, with reference to the decisions of the Courts, makes the character of this alleged wuqf at all doubtful, is the very one which the lower Court has treated as one as to which there could be no dispute as to its being a proper object of wuqf. For, in the wuqfnama, there is express provision for the maintenance of the dedicator's male descendants, in addition to the strictly pious and religious objects for which the wuqf purports to have been made. But the Bombay High Court has,' by a Full Bench, decided that, to constitute a valid wuqf, there must be a dedication of the property solely to the worship of God, or to religious or charitable purposes: see Abdul Ganne Kasam v. Hussen Miya Rahimtula 10 Bom. H.C.R. 13. That view has been endorsed by a Division Bench of this Court in the case of Mahomed Hamidulla Khan v. Budrunnissa Khatun 8 C.L.R. 164.
9. The definition might seem to exclude from judicial recognition a wuqf of which one object is a provision for the family of the creator of it.
10. The lower Court, however, easily disposes of this question by the observation that 'it is quite evident, and there is no necessity to quote any authority on the subject, that a wuqf for one's-self and for one's children is valid.'
11. In the Bombay case the Judges, after considering all the available authorities on this question, held, that the balance was in favour of the dictum to which they gave effect; and this too was what the Division Bench, of which one of us was a member, decided in the case of Mahomed Hamidulla Khan v. Budrunnissa Khatun 8 C.L.R. 164. In that case the alleged wuqf, which we declined to recognize, had for its object nothing connected with the worship of God or religious observances, and provided only in a very remote contingency for the poor. It was simply a perpetuity for the benefit of the dedicator's daughter and her descendants so long as any should exist.
12. The wuqfnama now before us is of a very different character; and having regard to the passage in it reciting the fact of dedication, we think that, without saying whether or no we are prepared on further consideration to adopt to the full the ruling above-mentioned, we can treat this wuqf as actually fulfilling the condition described, for the maker of the wuqf, after reciting the whole of his property of every kind, proceeds to declare that all has been endowed by him for the expenses of the musjid and the tombs of the holy personages of his family; the servants of the asthana, and for performing the urs and fateha at the tomb.
13. These are the objects of the wuqf, and they are all distinctly religious. They also involve to some extent charity to the poor.
14. We are disposed to hold this, therefore, to be a valid wuqf within the purview of the rulings quoted.
15. The subsequent direction that the manager shall maintain the future male descendants of the maker of the wuqf does not necessarily alter its character. Whether or not the provision or direction can be lawfully carried out it is not necessary for us now to decide. But apart from this we are of opinion that the wuqf was completed by the passage which we have quoted. And we accordingly decide this point against the appellant.
16. As regards the third and last objections we are of opinion that the wuqf being found to be a legal and valid one, it is really immaterial for the purposes of this suit to enquire how the proceeds of the property have since been applied. For no amount of misappropriation or other misconduct on the part of the manager can alter the character of the wuqf or render it void.
17. That being so, we hold that the decree of the lower Court was right, and we dismiss the appeal with costs.
18. This judgment will also govern Appeal No. 52 of 1881.