JUDGMENT
1. The plaintiff in this suit seeks to set aside a wakfnama, dated the 2nd of November 1902, executed by one Musammat Najiban, and for possession of a half-share in the property dealt with by the wakfnama, 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 benefit of Kalb Husain and his brother Ataullah, the mutwallis appointed by the wakfnama. This appeal is closely connected with First Appeal No. 341 of 1906, decided on the 27th of 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 as evidence in each case. The two connected appeals Nos. 340 and 341 of 1906 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 Musammat 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 1906 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 wakfnama. In the Court below this was certainly not the main ground of attack on the wakfnama, but it was raised by the pleadings and has been argued by Mr. Abdul 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 distributing 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 evidence. The endowed property, which of course includes the Imambara, is stated in the wakfnama to be worth Rs. 40,000. The landed property exclusive of the Imambara is worth Rs. 30,000. It appears that the tenants were somewhat 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 wakfnama is to the following effect:
Whereas there are a 5 biswa zamindari share in 20 biswa patti surkh in the village Gurganwan, pargana Aonla, and a pucca 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 wakf of the whole of the said property, i.e., 5 biswas of the village Gurganwan and the house used as Imambara together with all the original and appended rights, zamnindari appurtenance, sir land, groves, collection houses, abadi, bazar (market), all sewai items and muafis, etc., including mahruka lands, for religious 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 mutawallis in possession thereof like myself. I shall get mutation of names in respect of the said zamindari 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. 200 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 Murtaza in the months of Rabi-ul-awwal and Ramzan respectively, Rs. 600 for the expenses of making offerings and keeping tazias in honour of the chief of the martyrs, namely, Imam Husain and Husan (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 the debt due by the mutawallis or to be sold by auction.
3. Should the said mutawallis die without appointing any one as mutawalli 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 all 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.
3. 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.
4. The actual amounts are set out. They come to a sum of Rs. 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 wakf were legal and that the wakfnama was duly executed, the onus of showing that having regard to the value of the property, the wakf was merely illusory lay upon the plaintiff. We have been referred to the extract from the khewat of 1311 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 Jamabandi for 1310 Fasli showing the income of 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 an 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 costs of managing the estate. Under the wakfnama the mutawallis get no remuneration for their services and they would of course be justified in paying for the services of the manager of the property. Taking all the evidence into consideration we are clearly of opinion that it cannot be said that the main object of the wakfnama 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 wakfnama.
5. The only point that remains is the question of 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 School, 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 wakf. 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 wakfnama was not illusory and there was an intention of creating a substantial wakf for pious and charitable purposes and we hold that the objects for which the wakf was created were valid. We, therefore, dismiss this appeal with costs including, in this Court, fees on the higher scale.