JUDGMENT
1. In this case the plaintiff, Maulvi Muhammad Abdur Rafey Khan, is the first cousin of one Maulvi Abdul Wajid Khan, deceased, and sues to recover possession of the three-fourths share in the estate left by the deceased which would fall to him under Muharkmadan Law. The defendants are Musammat Banni Begam, widow of the deceased, and Yusuf Ali Khan, the designated mutawalli of a wakf said to have been created by Abdul Wajid Khan in his lifetime The suit has been decreed in respect of a few items of property with which we are not now concerned as they were not included in the alleged wakf; but the learned Subordinate Judge has dismissed the bulk of the plaintiff's claim upon a finding that the property concerned formed the subject of a valid wakf duly created by Maulvi Abdul Wajid Khan in his life-time. This finding is contested by the plaintiff before us in appeal. His contention is that Abdul Wajid Khan never did create, and never intended to create, any valid wakf, or at any rate that he never intended to create any wakf which should take effect in his own life-time. That is to say, we are asked to hold that, even if Abdul Wajid Khan did intend to make a real and substantial disposal of his property for religious and charitable purposes after his death, and even if he left behind him documents which would have the effect of carrying out that intention, his entire proceedings are vitiated by the fact that he was trying to evade the rule of Muhammadan Law restraining him from making, to the prejudice of his legal heirs, any testamentary disposition of his property affecting more than a one-third share of the same.
2. The evidence in the case is somewhat voluminous, and has been dealt with by the learned Subordinate Judge in an elaborate judgment, from the main conclusions of which we see no reason to dissent. The essential points* of the case, however, lie within a narrow compass. It is quite clear that the notion of disposing of his property by way of wakf had long been present to the mind of Abdul Wajid Khan. A copy of a decree, dated July 7th, 1887, by which certain litigation between this gentleman and his own father was settled in accordance with the terms of a compromise between the parties, has been put in evidence (pages 50 and 51 R.) and shows a definite intention to preserve the corpus of the family property intact, and to use it for the foundation of a wakf after Abdul Wajid Khan's death. It is proved that Abdul Wajid Khan was famous for his charitable disposition and the religious bias of his mind is shown by the fact that he three times made the pilgrimage to the Holy Places of Arabia. To such a man the idea of founding endowments for religious and charitable purposes would follow naturally upon an intention so to dispose of it after his death. We find that he actually executed four deeds of endowment. He began by taking a significant precaution. On August 31st, 1892, he obtained from his wife (the first defendant in the present suit) a formal relin-qaishment of her heavy claim for unpaid dower-debt, the lady in this document expressly states that she relinquishes her claim on the understanding that her husband intends to dedicate the property by way of wakf. On the following day, namely, September 1st, 1892, Abdul Wajid Khan executed the first of his wakf-namas. Much of the argument in this case, and much, of the judgment of the Court below, was occupied with the discussion of the question whether this document, had it stood alone, would or would not on the face of it have constituted a valid wakf. There can be no doubt that this deed purports to effect a present alienation of the corpus of the property concerned, with a dedication of the same to charitable or religious purposes. In so far it differs essentially from any testamentary disposition of property, the alienation being irrevocable and taking effect at once. On the other hand, Abdul Wajid Khan in this document appoints himself "mutawalli" and leaves himself in absolute and unfettered control of the income of the property, bound by nothing except by his own injunctions that the money is to be spent for charitable and religious objects. Moreover, he secures the succession to this office of sole trustee for his wife, in the event of her surviving him, and he makes similar provision for his children and their descendants, in the doubtful event (which in fact never occurred) of any children being born to him after the execution of the deed. It is sufficient to say that the validity of this document, if it stood alone, would involve questions of law open to considerable discussion, but questions as to which we find it unnecessary to pronounce any opinion in view of the facts of the case as they stand.
3. On October 2nd, 1893, Abdul Wajid Khan supplemented his first deed of endowment by another, in which he simply added something to the value of the endowment. On April 12th, 1899, he availed himself of the powers of revision and control which he had reserved to himself by his first deed, in order specifically to devote a portion of his landed property to the endowment of a certain school at Lucknow. It has finally been admitted by the plaintiff that this deed at any rate he is not in a position to contest; it fulfils every possible condition of a valid wakf. It may be noted in passing that it involves property of the value of Rs. 10,000. Finally, on October 13th, 1906, Abdul Wajid Khan, executed a fourth deed of endowment, and it is on this deed that the case really turns. It was evidently drawn up under careful legal advice. The preamble contains an implied reference to the ruling of this Court in Muhammad Aziz-ud-din Ahmad Khan v. The Legal Remembrancer to Government, North Western Provinces and Oudh 15 A. 321, and to certain more recent decisions of their Lordships of the Privy Council, as having thrown some doubt on the validity of the two wakf-namas of September 1st, 1892, and October 2nd, 1893. No doubt the writer means that some question might be raised as to whether these documents had in fact been followed by any real and bona fide transfer of the property concerned to the nominated mutawalli (i.e., to Abdul Wajid Khan himself as mutwalli), also that difficulties might arise regarding the possible reservation of a series of life-interests under the terms of the first deed. Therefore, while protesting that he personally regards these earlier deeds as valid under the Hanafi law by which he is bound, and that he has been acting upon the terms of the deeds up to this time", he proceeds to execute this fresh wakfnama of October 13th, 1906, avowedly with the object of removing all difficulties and making a dedication of his property which shall be beyond question and dispute. Now, it was admitted in argument before us that this appeal must fail if we are prepared to maintain this last deed. The only questions for determination are whether this deed on the face of it constitutes a good and valid wakf under Muhammadan Law, whether it was executed by Abdul Wajid Khan in good faith with intent that it should operate as such, and whether the disposition of property made therein was actually carried into effect. It is not even necessary for us to consider what would be the legal consequences if we answered either the second or the third of these questions in the negative, because it seems clear to us on the evidence that there must be a finding against the appellant on each point.
4. We may consider first the objections taken to the provisions of the deed as it stands. It is contended that the provision made in several paragraphs of the deed for " urs " or 'fateha" ceremonies renders the endowment invalid, at least to the extent of such provision, because expenditure for such purposes is not recognized by some Muhammadan lawyers as of a " religious " character. The tendency of later decisions of this Court is against the appellant on this point, as may be seen from the cases in Phul Chand v. Akbar Yar Khan 19 A. 211 : Biba Jan v. Kalb Hussain 6 A.L.J. 115 : 1 Ind. Cas. 763 : 31 A. 136; Fakhr-ud-Din Shah v. Kifayut-ul-lah 7 A.L.J. 1095 : 8 Ind. Cas. 578; Mazhar Hussin Khan v. Abdul Hadi Khan 8 A.L.J. 162 : 9 Ind. Cas. 753 : 33 A. 400 Moreover, the deed before us seems to have been carefully drafted in order to meet the doubts suggested by these rulings. It provides in every case that the expenditure shall be on charitable objects, the distribution of food to the poor and the like, on the occasion of the ceremonies in question. The difficulty, which some strict Muhammadans have felt regarding the validity of prayers for the repose of the souls of the departed as a suitable "religious" object for a trust or endowment, scarcely seems to arise at all. The distribution of food to the poor is a "charitable" object, and it is difficult to see how it can become less so because the founder of the endowment chooses to associate it with certain particular dates and with the anniversaries of the deaths of departed saints, worthies or relatives of his own. It seems impossible, therefore, to hold that we have not in this trust-deed a substantial dedication of property to religious and charitable purposes. The total annual income of the property dealt with is about Rs. 9,000 and after this objection regarding the "urs" or "fateha" ceremonies has been overruled, there remain only two items to which exception can be taken. These are items Nos. 8 and 12. The first of these provides that Rs. 3,000 shall be sent every year, through a certain firm of bankers at Delhi, to Mecca and Medina for expenditure on various charitable objects. On the face of it, the provision is perfectly good, the suggestion on behalf of the appellant is that it is purely illusory, as Abdul Wajid Khan intended shortly to proceed to Mecca himself and meant the money for his own use. Nothing is proved in support of this suggestion beyond the fact that Abdul Wajid Khan did proceed to Mecca shortly afterwards, and in fact died there. We see no good or sufficient reason for holding that this clause of the trust-deed was not intended to operate according to its apparent purport. By the twelfth clause, a further sum of Rs. 3,000 yearly is directed to be paid over to Abdul Wajid Khan's wife, to be spent in charity at her discretion; the suggestion is that the real object was to provide for the lady's own needs for her life-time. It seems sufficient to say that a wakf of property yielding an income of Rs. 9,000 a year would certainly not have been invalidated even if the trust had been saddled, frankly and openly, with the provision of a life annuity of Rs. 3,000 in favour of the wife of the wakif.
5. The deed as it stands is, therefore, a good and valid wakf. We can see no reason whatever, on a review of the evidence as a whole, for holding that Abdul Wajid Khan did not intend it to operate as such. The evidence upon the strength of which it was contended that the trust was never carried into effect seems to us wholly insufficient to support any such contention. Abdul Wajid Khan duly caused mutation of names to be effected in the Revenue Records in favour of Yusuf Ali Khan, the mutawalli appointed under the deed. He himself left for Arabia about a year after the execution of the trust-deed having handed over the whole property to the mutawilli, and he never returned. It is not necessary for us to discuss the details of the evidence; it has been thoroughly considered by the learned Subordinate Judge. The granting of a few leases in the name of Abdul Wajid Khan in his capacity of Lambardar after the 13th October 1903 is accounted for by the fact that he was not formally removed from this office until some months later, the suits instituted in Abdul Wajid Khan's name seems to have been for arrears of rent which had accrued due before the appointment of the new mutawalli. The account books kept by the latter were actually tendered before the lower Court, and it would be preposterous to draw any decisive inference against the defendants from the fact that when the books were before the Court, neither side thought it worth while to get them formally proved.
6. We find, therefore, against the appellant on every point and dismiss this appeal with costs including fees on the higher scale.