R.P. Mookerjee, J.
1. The plaintiff appellant had filed a suit out of which the present appeal arises for partition of certain items of property on the allegation that they were held jointly with the defendants. Objection was raised on behalf of some of the defendants in respect of some of the properties alleging that such properties were not divisible ones. The suit has been decreed in part.
2. In the present appeal the plaintiff appellant had originally raised only one question.
3. The property described as item No. 7 is premises Nos. 20, 20/1 and 21 Beliaghata Main Road. The plaintiff claimed that this was a joint property. The defendants' case, on the other hand, was that this property was made Wakf under a registered deed of Wakf-al-Aulad exe-cuted on 14-4-1920, which has been marked as. Exhibit A in the case. The learned Subordinate Judge accepted the case as made by the defendants and dismissed the plaintiff's claim in respect of this property.
4. Mr. Sen appearing on behalf of the appellant contends that the Wakf-al-Aulad affected merely a two anna interest in the property in question and not the entire interest in the said property. The decision on this question, will depend on an interpretation of the relevant provisions in the Wakf-al-Aulad.
5. Later on however Mr. Sen appearing on behalf of the appellant asked for leave to urge another point as to whether this Wakf was a legal and valid one. We have heard the parties on. this point also and proceed to consider both the-questions.
6. Mr. Sen contends that so far as properties described in Schedule Kha to the plaint are concerned there is no ultimate gift to charity.
7. In paragraph 4 of the Wakf it is provided 'The property described in Schedule 'Kha' below is let out to non-permanent Bharatiya tenants-at-will. The expenses on account of the taxes and rents etc., of the entire Wakf property and the expenses for the preservation and up-keep of the entire Wakf property and for the repairs of the structures etc. standing on the Wakf property shall be met from the income of the said property.'
8. In the first place, it is for consideration, whether this provision may be considered as one for gift to charity. Or, in other words can a property given for the upkeep of Wakf property be considered to have been made a Wakf.
9. The Question whether a property has been dedicated to religious or charitable uses must be determined with reference to the religious sentiments of the community to which the properties belong and not in accordance with the ideas or sentiments prevalent amongst a different community.
10. While dealing with 'Musarif'--that is thedisbursement of income from Wakf properties orthe proper object of appropriation--Bailley in hisDigest of Mahomedan Law (p. 574) observes:
'The income of a Wakf is to be expended in thefirst place on necessary repairs, whether theappropriater has made it a condition or not* * * but if anything else has.been specified the income must be applied tothat immediately after the repairs.'
11. A distinction however is made between aproperty which is being used for religious orcharitable purposes and one which is appropriatedfor the residence of some person or other.
'If one should appropriate his mansion for theresidence of his child the repairs are to be madeby the person who has the right of residence;and if he refuses or is poor, the Hakim orJudge, has to let the mansion, and to make therepairs out of the rent; and when these hadbeen completed, he should restore it to theperson entitled to reside in it. But that personcannot be compelled to make the repairs norhas he had liberty to let the mansion.'
12. If however a person directs that the income is given to an individual for his personal use for a certain period and after that to the poor and makes it a condition that the repairs are to be made out the properties the repairs are to be postponed to the right of the person unless the postponment of them should be for the manifest injury of the Wakf in which case the repairs must first be made.
13. In conformity with the principles above-mentioned repairs to Imambarahs -- 'Bibajan v. Kalbhossain', 31, All 136 (A), upkeep of Private Guest House -- 'Yusuf Khan v. Misal Khan', 73 Ind Cas 99 (Pesh) (B) and maintenance of the tomb of a saint, -- 'Advocate General of Bombay v. Yusuf Ali Ebrahim', AIR 1921 Bom 338 (C) have been held to be valid objects of a Wakf. Such a. purpose will be considered, to be 'religious, pious or charitable' under Clause 2(1) of the Wakf Act also.
14. There is no dispute between the parties that the properties included in Schedule 'Ka' are admittedly Wakf properties. But the members of the family are allowed to reside in the dwelling house during their lifetime and also their descendants. The repairs to such property, therefore, whilst the houses are in the occupation of individuals cannot be considered to be a valid object of Wakf. This aspect of the question had not been specifically raised or considered in the lower Court and it is not possible to give a final decision with regard to each one of the property which is included in Schedule 'Ka' and admittedly made a Wakf. On the materials before us therefore we cannot hold that, in the special circumstances of this case particularly in the absence of necessary materials, the provisions for the repairs of properties included in Schedule 'Ka' out of the income of the properties included in Schedule 'Kha' would by that fact alone make the properties included in later schedule Wakf properties.
15. The learned Subordinate Judge has however held in respect of the properties included in Schedule 'Kha' that there is an ultimate dedication to religious and charitable purposes and we shall proceed to consider whether the objections raised on behalf of the appellant is well founded.
16. One of the essential conditions of a valid Wakf is that the appropriation must be at once a complete one. When the objects of the Wakf are certain and definite it will not make the Wakf an invalid one because no definite portion of the property or specific amount or proportion of the income is dedicated to religious or charitable purposes of a permanent character. 'Gha-zanfar Hossain v. Mt. Ahmadi Bibi' : AIR1930All169 ; -- 'Mahomed Kazim v. Abi Saghir', AIR 1932 Pat 33 (E).
17. It is, however, contended on behalf of the defendant that the dedication in the present casein favour of charity is too remote and the ultimate gift is an illusory one; there is no out and out appropriation at the time of the Wakf and by the introduction of the daughters' lines as being entitled to the property under certain contingencies there is an uncertainty which invalidates the Wakf.
18. Although there was at one stage some doubt and difference of opinion on this question it has now been settled and so far as this Court is concerned the Bench decision in -- 'Mohiuddin Ahmed v. Sofia Khatoon' : AIR1940Cal501 ' (P) has clarified the position. If the vesting in charity is to be postponed not only after the dependents of the Wakf and the members of his family but also of distant kindred the ultimate gift to charity must be held to be more remote than was allowed under Section 4 of the Mussalman Wakf Validating Act. The provisions of the Wakf-al-Aulad which were the subject-matter of scrutiny in -- : AIR1940Cal501 provided for the postponment to charity till after the failure of the heir, how low so ever, of the members of the Wakif's family. This was held to be so distant and so improbable of an achievement that it was held that there was no valid gift to charity.
19. In the present case, the postponement is till after the descendants on the male line and then also after the daughters' lines. These provisions do not, however, exhaust all the heirs under the Mahomedan Law. The connotation of the term 'family' as under the Mahomedan Law has been discussed in -- : AIR1930All169 . The members in the daughters' lines are members of the family.
20. The objection that the vesting in charity in the present wakf was more remote than was allowed under the law must therefore be overruled.
21. We now proceed to consider as to what share in the property was made the subject-matter of the wakf.
22. In the opening paragraph of the Wakf-al-Aulad it is specifically stated that whatever right, title and interest the four executants had in the properties in question 'become vested in the Great God this day'. In paragraph 5 of the Wakf-al-Aulad are detailed the devolution of the interest as also how the income of the properties is to be utilised until the income is spent for the maintenance of the poor and the distressed Musalmans of the locality.
23. The properties in question are partly portions of the land covered by buildings which were being used for residence by the parties or being let out. This portion is included in schedule Ka in the Wakf-al-Aulad. There was a certain portion of the premises which had been lying vacant. The portion of the property which was let out to non-permanent 'bustee' dwellers as tenants at will were included in schedule Kha.
24. In para. 5 of the Wakf-al-Aulad it is provided that the income that would be derived either from the structures or from the lands which are let out or may in future be derived from the 'patit' land will be taken by all the four executants during their lifetime subject to the condition appearing in paragraph 4 of the Wakf-al-Aulad under which the income from the property included in Schedule Kha of the Wakf-al-Aulad would be utilised on account of the taxes and rents 'et cetra' of the entire wakf property and the expenses for the preservation and upkeep of the entire wakf property and for the repairs of the structures.
25. The provision made as to what would happen on the demise of Karimannesha Bibi isin the following terms:
'On the demise of me, Srimati Karimannesha Bibi my share of the aforesaid income will be received by my three sons......in equal sharesfor their maintenance during their lifetime, (that is to say) upon the demise of me, Srimati Karimannesha Bibi, the 16 annas share of the said income will be divided into three equal scares, out of which'
one third share will be received by each of thethree sons and his male descendants for theirmaintenance.
26. Karimannesha Bibi had a two anna share in the suit properties. It is contended on behalf of the appellant that the provision above mentioned refers only to her share in the properties and does not provide for the devolution of the interest to receive the income from the remaining fourteen annas share after the death of the three sons.
27. It may be that the involved language used in paragraph 5 may at first sight support the contention raised on behalf of the appellant, but if the entire paragraph be read as one composite whole, there is no doubt as to what was the intention of the parties and what had actually been done. The scheme which was adopted by the parties was that the interests of all the four persons were being made wakf, and during their lifetime they would be entitled to appropriate for their own use the income from the said estate. After the death of Karimannesha the income which would be taken by her would not be available to all of her heirs, but to her three sons.
It is for this purpose that a specific mention is made in paragraph 5 of the Wakf-al-Aulad as to what is to happen with regard to the two anna share of the income of the estate after Kariman-nesha's death. Such income being made available to the three sons of Karimannesha, and the income of the entire estate, viz., the fourteen annas share which had originally belonged to the three brothers and the two annas share which had originally belonged to Karimannesha would be available to the three sons alone and to their male descendants and others. The provision which is made thereafter makes a reference to the income of the entire property and not to the two annas share of the property which had at the time of the execution of the Wakf-al-Aulad belonged to Karimannesha.
23. If we refer to the opening paragraph of the Wakf-al-Aulad as also the description of the properties with the heading as regards the entire property in respect of which the wakf is made along with the directions given in paragraph 5 of the Wakf-al-Aulad, there can be no doubt that the Wakf included the entire sixteen annas interest in the properties which had originally belonged to Karimannesha and her three sons. We must, therefore, hold that the entire properties which are described as item No. 7 in the schedule to the plaint of the present suit were included within the Wakf-al-Aulad executed by Karimannesha and her three sons on the 14th April, 1920.
29. In this view, the decision of the learned Subordinate Judge that those properties could not be the subject-matter of partition as amongst the heirs of the executants of the said Wakf-al-Aulad was a correct decision. This appeal must accordingly be dismissed. In view of the fact that the question depends upon the interpretation of the Wakf-al-Aulad which was not in very clear and unambiguous terms parties will bear their respective costs in this Court.
P.N. Mookerjee, J.
30. I agree.