(1894) Law Rep. 22 Ind. Ap. 76 (P.C.)

ABUL FATA MAHOMED ISHAK and Others, Plaintiffs

and

RUSSOMOY DHUR CHOWDHRY and Others, Defendants

On appeal from the High Court in Bengal

Present:—Lord Watson, Lord Hobhouse, Lord Shand, and Sir Richard Couch

Mahomedan Law—Wakf—Perpetual Family Settlement—Illusory Gift to the Poor.

Held, that under Mahomedan law a perpetual family settlement expressly made as wakf is not legal merely because there is an ultimate but illusory gift to tho poor.

Meer Mahomed Israil Kham v. Sashti Churn Ghose (1) and Bikani Mia v. Shuk Lal Poddar (2) overruled.

^1Ind. L.R. 19 Calc. 412

^2Ind. L.R. 20 Calc. 116

APPEAL from a decree of, the High Court (Feb. 24, 1891), reversing a decree of the Subordinate Judge of Sulhet (April 18, 1889), and dismissing the Appellants’ suit with costs.

The facts of the ease and the deed of wakfnama are sufficiently set forth in their Lordships’ judgment.

The Subordinate Judge held, in reference to the deed and its construction, as follows:—

(1.) That it had been satisfactorily proved that the first and second Respondents were brothers, and were joint owners, and were in possession of almost all the properties in the 1st, 2nd, and 3rd Schedules in equal shares. That, while so owning and possessing the said property, they had made their “shares and interests” therein wakf, and had relinquished their rights thereto under the registered wakfnama of the 21st of December, 1868.

(2.) That they had appointed themselves mutwalis, and had taken possession of the properties and of the documents of title  [*77]  relating thereto, and had jointly administered the appropriated properties by receiving the profits thereof, and, by making charity, “and by establishing a madrussa, and by giving allowance to, the beneficiaries,” and had inserted their names as mutwalis in the collection papers, and had otherwise given publicity to the said appropriation.

(3.) That they had, in execution of. powers given by the wakfnama, exchanged the properties forming part, of the wakf and specified in Schedule 4 for the properties specified in Schedule 5, and he held that such exchange was a proper transaction, and ought not to be questioned or set aside.

(4.) That the first Respondent had, some four to six years after execution of the wakfnama become involved in debt and had begun to waste the wakf property, and. had induced the second Respondent to come to a partition with him in respect, of part of the property, and had, in collusion with certain of the other Respondents who were well aware of the wakf, charged and alienated the wakf properties and injured the estate, but that at the time of the execution of the wakf deed there was in fact no indebtedness, or at all events no such indebtedness as in any way invalidated or prejudicially affected the appropriation.

(5.) That the first and second Respondents had, while in easy circumstances, made a wakf of their properties for religious and charitable purposes, in good faith for the purpose of dedicating the property to the “service of God, so that the profits might be applied towards the maintenance of themselves and their descendants from generation to generation, and might ultimately be appropriated to the maintenance of the poor and needy of Sylhet, and that besides such maintenance, religious acts might be performed, and that in fact acts of religious merit and of charity had been performed with the income of the said wakf properties.

(6.) That from the wakfnama it appeared that the appropriators had directed the ultimate application of the income o the properties to objects not liable to become extinct, that thi appropriation had been at once completed, that there was no provision in the deed for a sale of the property and the expenditure of its proceeds on the appropriators’ necessities, that  [*78]  the ultimate object of the wakf was the benefit of the poor and needy, that the appropriation was in perpetuity, and that the wakifs or appropriators, having executed the deed, at once transferred the properties to themselves as mutwalis, relinquishing their own personal rights in the same, and that therefore the wakf was valid according to Mahomedan law on the authority of a decision of the High Court: Jagatmoni Chowdhrani v. Romjani Bibee (1).

He accordingly directed that the wakf should be declared a good and valid wakf, that the first Respondent should be removed from his office of mutwali for breach of trust, that the second Respondent should be appointed sole mutwali, and that all the wakf property should be made over to him as such mutwali.

As to the specific properties, he held that the property in Schedules 1, 2, and 3 were all wakf properties, except a portion which had been purchased after the wakf deed with moneys not belonging to the wakf, and a further portion which the first and second Respondents had inherited after the wakf; and he directed that possession of all the wakf properties should be made over to or confirmed to the second Respondent as sole mutwali, all mortgages, transfers, leases, or sales in execution or attachments of the properties declared to be wakf being declared void and of no effect, and being set aside.

The High Court (Tottenham and Trevelyan JJ.) reversed this decision, holding that the deed in question could not be sustained as a valid wakfnama, but was only a pretended dedication of the property, the real object of the persons executing the same being to enable them to secure the property dealt with thereby for their own use, and to protect it for ever from their own creditors and from the creditors of their descendants; and to enable them to repudiate alienations in respect of which they had received full consideration.

They based their judgment upon the authority of Sheik Mahomed Ahsanulla Chowdhry v. Amar Chand Kundu (2); upon Abdool Ganne Kasam Hussen Mlya Bahimatula (3), which was followed in Mahomed Hamiduila Khan v. Lotful Hug (4) and

^1Ind. L.R. 10 Calc. 533. ^2Law Rep. 17 Ind. Ap. 28

^310 Bomb. H.C. 7 ^4Ind. L.R. 6 Calc. 744.

[*79] Fatima Bibi v. Ariff Ismailji Bham (1); and upon a decision by the Madras High Court in Pathu Kutti v. Avathala Kutti (2); and concluded:—

“We have the authority of the Privy Council in Ahsanulla Chowdhury v. Amar Chand Kundu (3) for refusing to recognise as a valid deed of wakf an instrument which uses a particular form of words as a veil to cover arrangements for the aggrandizement of the family. and to make their property inalienable.

“Precisely such, in our judgment, is the deed before us; and notwithstanding the fact that, for a few years after its execution, the owners of the property dealt with, it nominally as mutwalis, it is certain that they never really intended to give up their proprietary right in it; and before very long they abandoned even the semblance of mere trusteeship. We cannot believe that the authors of Mahomedan law intended that, under cover of a pretended dedication to Almighty God, owners of property should be enabled to secure it for their own use, protect it for ever for their own and their descendants’ creditors, and repudiate alienations in respect of which they have received full consideration.”

Branson, for the Appellants, contended that the case it Law Rep. 17 Ind. Ap. 28, did not support the judgment of the High Court. In that ease the Judicial Committee expressl3 stated that they were not called on by the facts “to decide whether a gift of property to charitable uses, which is only to take effect after the failure of all the grantors’ descendants, is an illusory gift—a point on which there have been conflicting decisions in India.” They also state that “they have not bee] referred to nor can they find any authority showing that according to Mahomedan law, a gift is good as wakf unless there is a substantial dedication of the property to charitable uses a some period of time or other.” In that case there was n ultimate gift to the poor as here. So, also, in the later case if Abdul Gafur v. Nizamudin (4), there was no ultimate gift to the poor. Reference was made to the Hedaya, vol. ii., bk. xv., On  

^19 C.L.R. 66. ^2Ind. L.R. 13 Madras, 66.

^3Law Rep. 17 Ind. Ap. 28 ^4Law Rep. 19 Ind. Ap. 170.

[*80] Wakf, p. 334; Bailhie!s Mahomedan Lawk 2nd ed., bk. ix., p. 557, et seq.

Again, the case in 10 Bomb. H.C. 7, has been expressly dissented from in two later cases decided by the same Court, namely, Fatma Bibi v. Advocate-General of Bombay (1), and Amrutlal Kalidas v. Shaik Hussein (2); and is opposed to the authority of Doe v. Abdollah Barber (3), decided by the Supreme Court of Calcutta.

Further, the case in Ind. L. R. 13 Madras, 66, is distinguishable as being that of an attempt to create an impossibility, namely, a conditional wakf, for it is provided by the deed in question in that ease, that if any child or children of the appropriator attained majority the property was to be theirs, and was only, to be considered wakf if none of the appropriator’s children attained majority. Under the Mahomedan law an appropriation of property, as in this case, to charitable uses, with a direction that the objects of such charity shall in the first instance be the appropriators, their family and descendants, and on their failure the general body of the poor, is a good and valid appropriation.

The decision in this case, which is reported in Ind. L. R. 18 Calc. 399, has been followed by a Full Bench decision in Ind. L. R. 20 Calc. 116, also unfavourable to the Appellant. It was submitted that the arguments of Ameer Ali J. in that case established that such a wakfnama as the present is a good and valid wakfnamah according to Mahomedan law.

It was contended that the expression “charitable purposes” is not used by Mahomedau lawyers in the same restricted sense in which it is used in English Courts, and that according to the Fatâwa Alamgiri (see Baillie’s Digest, 2nd ed. p. 595), a Mahomedan may make a wakf in favour of himself and his descendants with an ultimate trust for the poor, or in favour of the poor reserving the usufruct to himself and his family so long as they exist. A wakf is simply a permanent benefaction for the good of God’s creatures; so long as the dedication is permanent there is a free choice as to the beneficiaries; the descendants of the settlor being preferable objects of his bounty  [*81]  to the general body of the poor. That was the view of the old Mahomedan authorities, and it appears to have been acted on in early cases by the Indian Courts, as shewn by the cases cited by Ameer Ali J. in Ind. L. R. 20 Calc. 148, et seq. It was contended that not until the Mahomedan law officers ceased in 1864 to be consulted by the Law Courts was the doctrine laid down that a wakf on the members of one’s family was invalid. After 1861 the cases were somewhat difficult to reconcile, and did not follow such a uniform course as would establish the principle contended for on the other side. It must be remembered that there is no trace of any distinction in Mahomedan law books between a ’wakf for one’s family and a wakf for any other purpose. In this case the wakfnama is only in part for the wakif’s family and descendants, and such an endowment cannot be held to be invalid without imposing disabilities upon Mahomedans which would conflict with their religious customs. Reference was also made to Meer Mahomed Israil Khan v. Sashti Churn Ghose (1) ; Jagatmoni Chowdhrani v. Bomfani Bibee (2) ; Luehmiput Singh v. Amir Alum (3) ; Mahomed Hamidulla Khan v. Lotful Huq (4); Wahid Ali v. Ashruff Hossain (5). Also to Nizamudin Galam v. Abdul Gafur (6), and to Phate Saheb Bibi v. Damodar Premj (7).

^1Ind. L.R. 19 Calc. 412 ^2Ind. L.R. 10 Calc. 533 ^3Ind. L.R. 9 Cal.c. 176	^4Ind. L.R. 6 Calc. 744 ^5Ind. L.R. 8 Calc. 732 ^6Ind. L.R. 13 Bomb. 264
^7Ind. L.R. 3 Bomb. 84

Doy’ne, for the first six Respondents, contended that when the provisions of the wakfnama were examined it appeared that there was no real intention to benefit the poor. The scheme was one of perpetual settlement in favour of the descendants of the dedicators in male and female lines. The only clause in favour of the poor was that, in the absence of any descendants, the estate should be held “for the benefit of the poor and beggars and widows and’orphans of Sylbet.” With the exception of those words, there was no reference to them in the deed, nor was any duty imposed on present or future mutwalis of relieving their necessities. After the execution of the deed, the first and second Defendants continued to manage their estate just as before. The  [*80]  first Defendant admitted that he acted all along “in contravention of the wakf.” The High Court rightly held that the deed was not at any time valid as a religious or charitable appropriation under Mahomedan law, and that it was not intended by the grantors to be so. It was colorable and was executed obviously to take effect as a family settlement, the object being to make the property of the settiors inalienable for all time. It was contended that the judgment in Sheik Mahomed Ahsanulla Chowdhy v. Amar Chand Kundu (1) was in point and decisive, and that the question in this case was not really open because their Lordships in the case cited did not think it necessary to decide as to there having been an illusory gift. Reference was made to Macnaghten’s Precedents of Mahomedan Law, p. 69, c. 10.

¹Law Rep. 17 Ind. Ap. 28.

Branson, replied.

The judgment of their Lordships was delivered by

[ 1894 Dec. 15. ]

Lord Hobhouse:—

The object of this suit is to establish as a valid wakfnama a settlement of property effected by deed dated the 21st of Decem- ber, 1868. The settlors were two brothers called Abdur Rahman and Abdool Kadir, Mahomedan gentlemen belonging to the Hanifa sect of the Sunnis. The Plaintiffs, now Appellants, are sons of Abdur Rahman, to whom interests are given by the settlement. The Defendants, a hundred and more in number, are the settlors themselves, and persons claiming interests in portions of the settled property by virtue of transactions with Abdur Rahman subsequently to the date of the settlement. Some of these claimants are Respondents to the present appeal.

The Subordinate Judge of Sylhet held that the settlement was valid as a wakfnama, and gave the Plaintiffs a decree on that footing. On appeal the High Court took a different view, and dismissed the suit. The great mass of the record relates to subordinate disputes-what parcels of property fall within the settlement, and what inferences are to be drawn from the way in  [*83]  which the settlers dealt with the property after the settlement. But the only question argued here has been the nature of the settlement itself; for in the view taken by their Lordships all others are immaterial.

The settlement begins thus: “Committing ourselves to the mercy and kindness of the Great God, and relying upon the bounty of Providence for the perpetuation of the names of our forefathers and for the preservation of our properties, we have made this permanent wakf according to our Mahomedan law.” Then they describe the property conveyed by them. The objects are:—

“For the benefit of our children, the children of our children, and the members and relatives of our family and their descend- ants in male and female lines, and, in their absence, for the benefit of the poor and beggars and widows and orphans of Sylhet, on valid conditions and true declarations hereinafter set forth below. We, two brothers, have for our lifetime taken upon ourselves the management and supervision of the same in the capacity of matwalis, and taken out the wakf properties from our ownership and enjoyment in a private capacity, and we have put them in our possession and under our control in our capacity as matwalis.”

Then are stated various incidents and duties attaching to the office of matwali, amongst which occur the following:—

“In order to maintain the name and prestige of our family, we, the matwalis, will make reasonable and suitable expenses according to our means and position in life. We will at our own choice and discretion fix allowances for the support and maintenance of the persons intended to be benefited by this wakf, who are now living or who may be born afterwards, and we will pay the same to them every month, and also the expenses for their festive and mourning ceremonies, when required.

“It will be competent for us the matwalis and our successor matwalis to enhance or reduce the allowances of the persons for whose benefit the wakf is made, who are now living, or who may hereafter be born, in consideration of course of their position and circumstances and the state of the income of the wakf properties.  [*84]  It will be competent for us the present matwalis and the matwalis who will be appointed after us, to use the wakf properties as security and to grant putni, dur-putni and permanent and temporary ijara settlements in respect of them, and with the money to be received as salami for the aforesaid settlements, to purchase some other properties and to exchange any of the lands of this ’wakf with some other lands, and to include the lands so acquired by purchase or in exchange in the wakf, and to spend the profit of the same towards the expenses of the wakf, and to keep the surplus profit in stock in the tehbil, and to try always to increase the wakf properties and the amount in cash. Whatever properties may be acquired by us the matwalis and our successor matwalis after execution of this document, shall be included in this wakf. We the matwalis and the matwalis who will be appointed in our place hereafter shall have no power to make gift of any property in favour of relatives or strangers.”

It is provided that future matwalis shall always be chosen from the male issue of the settlors, or if they fail, from their rela- tives. Provisions are made to prevent any of the persons for whose benefit the wakf is made from claiming anything as of right, and from calling for accounts, and from alienating his interest or subjecting it to attachment. And towards the end of the deed its object is again stated:—

“The object of this wakf of properties is that the properties may be protected against all risks, the name’ and the prestige of the family maintained, and the profits of those properties appropriated towards the maintenance of the name and prestige of the family, the support of the persons for whose benefit the wakf is made, and religious purposes, &c.”

Such is the instrument which is propounded as a wakfnama. The motives stated are, regard for the family name, and preservation of the property in the family. Every specific trust is for some member of the family. The family is to be aggrandized by accumulations of surpluses, and apparently by absorption into the settlement of after-acquired properties; and no person is to have any right of calling the managers to account. These possessions are to be secured for ever for the enjoyment of the family, so far as the settlors could accomplish such a result, by  [*85]  provisions that nobody’s share shall be alienated, or be attached for his debts. There is no reference to religion unless it be the invocation of the Deity to perpetuate the family name and to preserve their property, and the casual mention of unspecified religious purposes, &c., at the end of the sentence last quoted. There is a gift to the poor and to widows and orphans, but they are to take nothing, not even surplus income, until the total extinction of the blood of the settlors, whether lineal or collateral.

It seems that in the High Court the learned Advocate-General contended, for the Plaintiffs that a gift to the donors’ descendants without any mention of the poor might be supported as a wakf; and even that the Mahomedan law intends that perpetual family settlements may be made in the name of religious trusts. In the case of Ahsanulla Chowdhry v. Amarchand Kundu (1) this Board said: “They have not been referred to, nor can they find, any authority shewing that, according to Mahomedan law, a gift is good as a wakf unless there is a substantial dedication of the property to charitable uses at some period of time or other.” The Board proceeded to affirm the decision of the High Court of Calcutta, who held that a small part of the property had been well devoted to charity, but that as to the bulk of it, the settlement was, notwithstanding some expressions importing a wakf, in substance nothing but a family settlement in perpetuity, and as such contrary to Mahomedan law. The principle of this decision has been c4ioted and approved in a subsequent case: Abdul Gafur v. Nizamiudin (2). This is a sufficient answer to the arguments used in the High Court.

Their Lordships, however, cannot now say that they have not been referred to any authority for the contrary opinion; for Mr. Branson has cited to them two cases in which there are very elaborate judgments delivered in the Calcutta High Court by the learned Judge Mr. Ameer Ali. Those judgments are in accordance with the opinion expressed by him in his Tagore Lectures, and if their Lordships have rightly apprehended them, they do go the whole length of the Advocate-General’s argument. One is in the case of Meer Mahomed Israil Khan v. Sashti Churn

^1Law Rep. 17 Ind. Ap. at p. 37.

^2Law Rep. 19 Ind. Ap. 170.

[*86] Ghose (1), where there were some immediate gifts to the poor, and the gift was upheld, and no further appeal was presented. TA The other case is that of Bikani Mia v. Shuk Lal Poddar (2), where there was no gift to the poor till after the failure of the settlor’s family. It was heard by a Full Bench of five Judges, who decided that the deed was invalid, Ameer Ali J. dissenting.

The opinion of that learned Mahomedan lawyer is founded, as their Lordships understand it, upon texts of au abstract character, and upon precedents very imperfectly stated. For instance, he quotes a precept of the Prophet Mahomet himself, to the effect that “A pious offering to one’s family, to provide against their getting into want, is more pious than giving alms to beggars. The most excellent of sadakah is that which a man bestows upon his family.” And by way of precedent he refers to the gift of a house in wakf or sadakah, of which the revenues were to be received by the descendants of the donor Arkan (3). His other old authorities are of the some kind.

As regards precedents, their Lordships ought to know a great deal more in detail about them before judging whether they would be applicable at all. They hear of the bare gift and its maintenance, but nothing about the circumstances of the property—except that in the case cited the house seems to have been regarded with special reverence—or of the family, or of the donor. As regards precepts which are held up as the fundamental principles of Mahomedan law, their Lordships are not forgetting how far law and religion are mixed up together in the Mahomedan communities; but they asked during the argument bow it comes about that by the general law of Islam, at least as known in India, simple gifts by a private person to remote unborn generations of descendants, successions that is of inalienable life interests, are forbidden; and whether it is to be taken that the very same dispositions, which are illegal when made by ordinary words of gift, become legal if only the settlor says that they are made as a wakf, in the name of God, or for the sake of the poor. To those questions no answer was given or attempted, nor can their Lordships see any. It is true that the donor’s  [*87]  absolute interest in the property is curtailed and becomes a life interest; that is to say, the wakfnama makes him take as mutwa or manager. But he is in that position for life; he may spend the income at his will, and no One is to call him to account That amount of change in the position of the ownership exactly in accordance with a design to create a perpetuity in the family, and indeed is necessary for the immediate accomplishment of such a design.

Among the very elaborate arguments and judgments reported in Bikami Mia’s Case (1), some doubts are expressed whether case of this kind are governed by Mahomedan law; and it is suggested that the decision in Ahsanulla Chowdhry’s Case (2) displaced the Mahomedan law in favour of English law. Clearly the Mahomedan law ought to govern a purely Mahomedan disposition of property. Their Lordships have endeavoured to the best of their ability to ascertain and apply the Mahomedan law, as known am administered in India; but they cannot find that it is in accordance with the absolute, and as it seems to them extravagant application, of abstract precepts taken from the mouth of the Prophet. Those precepts may be excellent in their propel application. They may, for aught their Lordships know, have had their effect in moulding the law and practice of wakf, as the learned Judge says they have. But it would be doing wrong tc the great lawgiver to suppose that he is thereby commending gifts for which the donor exercises no self-denial; in which he takes back with one hand what he appears to put away with the other; which are to form the centre of attraction for accumulations of income and further accessions of family property; which carefully protect so-called managers from being called to account; which seek to give to the donors and their family the enjoyment of property free from all liability to creditors; and which do not seek the benefit of others beyond the use of empty words.

^1Ind. L.R. 20 Calc. 116.

^2Law Rep. 17 Ind. Ap. 28.

Mr. Branson indeed did not contend for such sweeping conclusions, though, as in duty bound, he submitted the arguments which lead up to them. But he argued that where, as in this case, there is an ultimate gift for the poor, a perpetual family settlement expressly made as wakf is legal. 11e had a right to  [*88]  argue that point as not being covered by the decision in Ahsanulla Chowdhry’s Case (1). This Board expressly left it open, because they found that contradictory views had been taken in India, and they did not desire to enter into that controversy in a case where the facts did not raise it. The facts of this case do raise it.

Having examined the authorities cited, their Lordships find a great preponderance against the contentions of the Appellants. Some authorities go so far as to hold that for a valid wakf the property should be solely dedicated to pious uses. On that point, however, this Board in Ahsanulla Chowdhry’s Case (1) adopted the opinion of Kemp J., to the effect that provisions for the family out of the grantor’s property may be consistent with the gift of it as wakf. In favour of the view now urged for the Appellants there is the judicial opinion of Ameer Ali J. in Bikani Mia’s Case (2), dissenting from the rest of the Court; a dictum of Sir Raymond West in the Bombay High Court in the case of Faisna Bibi v. Advocate-General of Bombay (3), and a decision of Farran J. in the same Court in the case of Aniruthai Kalidas v. Bhaik Husain (4). The weight of Ameer Ali J.’s opinion on this subordinate point is somewhat lessened by his support of the gift under consideration on the very broad grounds which their Lordships have considered to be untenable. The dictum of Sir R. West is mentioned in Ahsanulla Chowdhry’s Case (5). Farran J. had before him a case very closely resembling the present one. He described Mie settlement as “ it can be supported as a wakfnama” (5); and he thought that the authority of the Hedaya is against it; but he adopted the principle stated by Sir R. West, which he treated as a decision, and he supported the gift on the strength of the ultimate trust for the poor.

^1Law Rep. 17 Ind. Ap. 28. ^2Ind. L.R. 20 Calc. 116.	^3Ind. L. R. 6 Bomb. 53 ^4Ind. L.R. 11 Bomb. 492.
^5Ind. L.R. 11 Bomb. at p. 497.

Their Lordships cannot assent to these conclusions. They make words of more regard than things, and form more than substance. In their judgment the Calcutta High Court have in  [*89]  this case rightly decided that there is no substantial gift to the poor. A gift may be illusory whether from its small amount o from its uncertainty and remoteness. If a man were to settle a crore of rupees, and provide ten for the poor, that would be at once recognised as illusory. It is equally illusory to make a provision for the poor, under which they are not entitled to receive a rupee till after the total extinction of a family; possibly not for hundreds of years; possibly not until the property had vanished away under the wasting agencies of litigation or malfeasance or misfortune; certainly not as long as there exists on the earth one of those objects whom the donors really cared to maintain, in a high position. Their Lordships agree that the poor have been put into this settlement merely to give it a colour of piety, and so to legalize arrangements meant to serve for the aggrandizement of a family.

They will humbly advise Her Majesty to dismiss this appeal with costs.

Solicitors for Appellants: Pemberton & Garth.

Solicitors for Respondents: Sandersom, Holland, & Adkin.

Transcribed 30 Sept. 2005 by Entreprise United Settlement Ltée, Lacolle, QC J0J 1J0