JUDGMENT Richards and Griffin, JJ.
1. The plaintiff in this suit seeks to set aside a waqfnama, dated the 2nd of November, 1902, executed by one Musammat Najiban, and for possession of a half share in property dealt with by the waqfnama, and for mesne profits. The plaintiff alleged that the execution of the deed was brought about by the undue influence of Kalb Husain, that Najiban was insane when she executed the deed and that no valid endowment had been created (1) because the objects were not legal, and (2) because the endowment was illusory and really made for the benefit of Kalb Husain and his brother Ataullah, the mutawallis appointed by the waqfnama. This appeal is closely connected with First Appeal No. 341 of 1906 decide on the 27th November 1908, and also with another, First Appeal No. 340 of 1906, which it has been unnecessary for us to decide inasmuch as the parties compromised it. The evidence in all these cases was by consent read en evidence in each case. The two connected appeals Nos. 340 and 341 of 1908 arose out of suits to set aside a deed of sale, executed by Musammat Najiban on the 18th of February, 1903, in favour of Kalb Husain on the grounds of the insanity of Masammat Najiban and the undue influence of Kalb Husain. The case of the plaintiff, so far as the plea of insanity was concerned, completely failed, and we have given our reasons at length in First Appeal No. 341 of 1903 for holding that the case founded on undue influence has also failed. The court below decided in favour of the plaintiff in the connected cases on the ground that the transaction came under the provisions of Section 16 of the Contract Act. But the present suit was dismissed, the court below being clearly of opinion that Najiban was not insane and that undue influence was not proved. We agree with the court below in this finding and we do not think it necessary to discuss the evidence, particularly as we have already dealt with it in our judgment in First Appeal No. 341 of 1906.
2. There remains the question of the validity of the waqfnama. In the court below this was certainly not the main ground of attack on the waqfnama, but it was raised by the pleadings and has been argued by Mr. Abdid Majid in support of the appeal. Najiban, it is clear from the evidence, was piously and charitably disposed for a. number of years before her death. She had built an Imambara at a cost of several thousand rupees. She was in the habit of keeping tazias and istributing gifts of food in charity. Her expenses in, these acts of charity amounted to Rs. 1,000 or Rs. 1,200 a year. She took a special interest in these matters. Before her death She made a pilgrimage to Mecca and after her return she continued the same pious course of action. All this clearly appears from the evidence. The endowed property, which of course includes the imambara, is Boated in the wakfnama to be worth Rs. 40,000. The lauded property exclusive of the imambara is worth Rs. 30,000. It appears that the tenants were some what unruly and there was considerable amount of litigation in realizing the rents. Part of the landed property consisted of a share in an alluvial mahal, the income of which was subject to fluctuation. The waqfnama is to the following effect:
Whereas there are a 5 biswa zamindari share in 10 biswa patti surkh in the village Gurgawan, pargana Aonla, and a pacca newly built house used as Imambara No. 75/962 in Bareilly near the library, bounded as given below, worth Rs. 40,000, and I am up to this time in proprietary possession thereof without the participation of anyone, I have now in a sound state of body and mind without coercion and of my own accord made a toaqf of the whole of the said property, i.e. 5 biswas of the village Gurgawan and the house used as imambara together with all the original and appended rights, zamindari appurtenances, sir land, groves, collection houses, abadi, bazar (market), all the sewai items and muafts, etc., including mahruka lands, for religions and charitable purposes subject to the following conditions and have appointed Kalb Husain, general attorney, and Ataullah, sons of Shaikh Sanaullah, as mutawallis (superintendents) of the endowed property "and put the said mutatcallis in possession thereof like myself. I shall get mutation of names in respect of the said lamindari share duly effected in the revenue department (Court).
1. The said mutawallis should collect rent and every sum of money due in respect of the endowed property, and pay the Government revenue, the village expenses and the salaries of the servants and out of the remaining amount of net profits they should pay under their own management Rs. 600 annually for the expenses of milad (birth anniversary) of the last of the Prophets (may the mercy of God be upon him) and that of Ali Martain in the months of Rabi-ul-awwal and Kauizan respectively, Rs. 600 for the expenses of making offerings and keeping tazias in honour of the chief of the martyrs, namely, Imam Husain and Hasan (may peace be on them) in the month of Muharram, and Rs. 200 for the expenses of the death anniversary of the dead persons and the repairs of the Imambara.
2. The said mutawallis shall, in no case, have power to sell or mortgage the endowed property, nor shall the said property be liable to pay tine debt due by the mutawallis or to be told by auction.
3. Should the said mutawallis die without appointing anyone as mutawallis or their representative, a qualified male descendant of the present mutawallis shall be appointed as mutawallis no other person shall have a right to be appointed as mutawalli. On the other hand this order of succession shall remain in force for all eternity generation after generation. No committee or society can interfere in the endowed property, inasmuch as the profits of the said endowed property have been dedicated for the maintenance of charitable purposes and offerings so that my name may be perpetuated in this world as well as in the next world and my soul benefited in the next world.
4. All the proceedings in the civil, criminal and revenue courts and in the Honourable High Court, Board of Revenue, Privy Council and all the departments in India relating to the affairs of the endowed property shall rest with and be taken under the control of the mutawallis.
5. I have made the endowed property God's property from this day and divested myself of nil proprietary connection therewith. After agreeing to the aforesaid conditions, I have executed this deed of endowment, in order that it may stand as authority and be of use when needed.
It will be noticed that the mutawallis are directed to collect the rents, then to pay the Government revenue, the village expenses and the salaries of the servants, and then to apply the net profits in certain proportions.
3. The actual amounts are set out. They come to a sum of Ra. 1,000. It is argued that the property must yield a net profit of more than Rs. 1,000 per annum and that as only Rs. 1,000 is appropriated, the balance would all come into the hands of the mutawallis, Kalb Husain and Ataullah, beneficially. As regards this it must be borne in mind that it is not only Rs. 1,000 which is appropriated by the donor to the service of God. She expressly says that the entire property is appropriated to the service of God. Mr. Abdul Raoof counsel on behalf of the respondents, repudiates all claim to any beneficial interest to any part of the income of the estate. If we assume for the purposes of this branch of the case that the objects of the waqf were legal and that the waqfnama was duly executed, the onus of showing that having regard to the value of the property, the waqf was merely illusory lay upon the plaintiff. We have been referred to the extract from the khewat of 1310 fasli, exhibit 15. C, in which the Government revenue of the entire 10 biswa share owned by Najiban is shown as Rs. 3,912 and to an extract from the jamabandi, for 1310 Fasli showing the income of the 10 biswa share for that year. The patwari of the village was examined as one of the plaintiff's witnesses. He stated that the Government revenue was Rs. 4,537-14-7. That statement was allowed to go unchallenged and it was accepted by the court below. This witness further stated that the village expenses according to the account furnished to him by the agent amounted in 1312 fasli to Rs. 2,244-2-9. The village expenses and the expenses of the management seem no doubt very high, but we think it very probable that for many years the village had been managed in a u extravagant way. Musammat Najiban had been a prostitute and a dancing girl. It appears that the whole 10 biswa share had been leased out for a term of 14 years from 1878 to 1892 at a rent of Rs. 2,000. This would leave only Rs. 1,000 as the profits of the endowed property. This lease had expired in 1892 and the estate is now probably of greater value, but we do not think that there would be a very large surplus over and above Rs. 1,000 after defraying the pay of the servants and the cost of managing the estate. Under the waqfnama the mutawallis get no remuneration for their services and they would of course be justified in paying for the services of manager of the property. Taking all the evidence into consideration we are clearly of opinion that it can not be said that the main object of the waqf nama was to benefit the mutawallis under the guise of religious and charitable endowment. On the contrary there was a dedication of the entire property to the objects set out in the waqfnama.
4. The only point that remains is the question of the validity of the objects of the endowment. The parties are Sunnis and it is contended that to endow the property for the purpose of celebrating the milad of Ali Murtaza is not good according to Hanafi Sohool, although it is admitted that a like celebration of the milad of the Prophet stands on quite a different footing and is valid. The appropriation of Rs. 600 to muharram is also challenged on like grounds. We have been referred to no authority forbidding the celebration of the birth of Ali Murtaza. As to the muharram expenses, the deed provides for the making of the offerings, i.e. feeding of the poor on the occasion of the muharram. This is clearly a charitable object, and the keeping of the tazias is a pious and religious ceremony not restricted solely to the Shia sect. It may be that the mode of observing the ceremony differs in the case of each sect, but we are satisfied that in the present case the intention of the donor was to continue and perpetuate the religious ceremonies and charitable works in which she had been engaged during her life. The remaining Rs. 200 is appropriated to the death anniversaries (barsi ammat) and to the repairs of the Imambara. The latter is admittedly a legitimate object of waqf. The contention of the respondents is that the death anniversaries (barsi ammat) should be understood as meaning the death anniversaries of the members of Najiban's family, and we think that this is a reasonable interpretation to be put on the words. We have come to the conclusion, after considering the evidence and the arguments, that the waqfnama was not illusory and there was an intention of creating a substantial waqf for pious and charitable purposes, and we hold that the objects for which the waqf was created were valid. We therefore dismiss this appeal with costs.