JUDGMENT
1. This is an appeal from the judgment and decree of the learned District Judge of Benares affirming the decision of the primary Court in a suit for proprietary possession of certain shares in immovable property and for mesne profits. The propertyin suit consists mostly of shares in zamindari property, houses and miscellaneous property situate in the District of Jaunpur.
2. The property admittedly belonged to Mir Inayat Husain, who died on 6th January 1924, leaving a widow Mt. Ahmadi Bibi and two stepbrothers Ata Husain and Ghazanfar Husain.
3. This action was commenced on 3rd April 1925, by Syed Ghazanfar Husain, his brother Ata Husain did not join in the suit and was impleaded as a defendant. The plaintiff claimed to recover a six-annas share in the estate of Syed Inayat Husain and founded his claim upon intestate succession under the Mahomedan Law.
4. The plaintiff repudiated a wakfnama, dated 7th April 1922, alleged to have been executed by Syed Inayat Husain under which Mt. Ahmadi Bibi defendant 1 claimed to be in possession of the entire estate of the deceased in her capacity as mutawalli of the trust.
5. The suit was mainly directed against Mt. Ahmadi Bibi, the widow. Ghulam Husain, defendant 2 is son of Fida Husain deceased, who was the brother of the plaintiff Dildar Husain and Faiaz Husain, defendants 3 and 4 are the sons of Ghaznafar Hussain plaintiff. The three defendants have been impleaded in the suit as they are beneficiaries under the deed of endowment.
6. If the wakfnama dated 7th April 1922, was a valid document as having been duly executed by Inayat Husain and if it did not contravene any mandatory provision of either the Mahomedan or Statute Law, the plaintiff's claim was bound to fail.
7. The plaintiff challenged the wakfnama on a variety of grounds, which gave rise to no less than 15 issues in the trial Court. The plaintiff denied that a wakfnama had ever been executed by Inayat Husain at all. It was urged that Inayat Husain was not the owner of the entire property covered by the deed of settlement, that the wakfnama was not validly registered, that the objects of the wakf were in no way lawful and religious, that a very small amount of the profits of the estate had been left apart for religious purposes and that the bulk of the income was intended to be for the benefit of Mt. Ahmadi Bibi who had obtained that document by fraud and undue influence with the object of depriving the heirs and of benefiting her sister and the members of her father's house.
8. Having regard to the allegations upon which the claim was founded and the frame of the suit, it is not surprising to find that the only defendant who contested the suit was Mt. Ahmadi Bibi, the widow. She contended that the wakfnama was duly and lawfully executed by Syed Inayat Husain.
9. The Court of first instance upheld the wakf and dismissed the plaintiff's suit. The lower appellate Court affirmed the decision: hence this appeal.
10. Most of the grounds upon which the deed of wakf was sought to be attacked in the trial Court were abandoned before the lower appellate Court. Only four pleas appear to have been advanced. These were repelled by the said Court which held that the deed of settlement had been duly executed and properly registered; that the said deed was a voluntary act of Inayat Husain and was not the result of importunity or pressure on the part of the wife and that the deed did not contravene the provisions of Mahomedan Law or any statutory enactment relating to the creation of a wakf amongst Mussalmans belonging to the Hanafi sect.
11. Syed Inayat Husan, like his step-brothers, did at one time belong to the Shia sect. He appears to have recanted and embraced the Sunni creed. The exact time when this came about cannot be known from the record nor is material for the purpose of this case. He married Mt. Ahmadi Bibi when he was fifty years old. There is no clear evidence on the point but presumably his first wife was a lady of the Shia persuasion. There are circumstances which indicate that the change of tenets came about after the death of his first wife. Mt. Ahmadi Bibi admittedly belonged to a Sunni family and professed the Sunni creed. Admittedly Syed Inayat Husain was a Sunni at the time of this marriage.
12. There appears to have been some disparity in the age of this married couple. It may be assumed that the husband treated his wife with considerable tenderness and in various matters relating to the administration of the housheld, respected her wishes. It will be unsafe to deduce from these facts either that Mt. Ahmadi Bibi had a dominating personality or that by her importunities or pressure, she had obtained the deed of endowment from her husband for her personal benefit and for the advantage of certain people, belonging to her father's household.
13. Syed Inayat Husain at the date of the execution of the wakfnama was 60 years old. Though advanced in years he was in full possession of his mental faculties and was not lacking in bodily vigour. As owner of the property, he was quite competent to make a disposition thereof and to lay down conditions in conformity with his inclinations and wishes. If these conditions are more favourable to the wife or to the members of her sister's household, it cannot be inferred therefrom either as a proposition of law or as an inference of fact that the said conditions were the result of domination exercised by the wife upon the husband. Where the wife is younger than the husband, there is no legal presumption that she is in a position to dominate the will of her husband.
14. The Courts below, having examined and collated the entire evidence bearing upon the question of undue influence, have unhesitatingly arrived at the conclusion that the plaintiff had failed to substantiate the plea. The finding on this point must therefore stand.
15. The deed of endowment in question has been the subject of severe criticism and it has been urged that the wakf was illusory, the object of the wakf being not to consecrate the property for the service of God but to tie up the property in perpetuity for the benefit of the wife and certain relations belonging to her father's household.
16. If Mir Inayat Husain had it in his contemplation to transfer the property to his wife or his wife's relations, he was faced with no impediment or obstacle in giving affect to his wishes by a different kind of instrument altogether. The property was not subject to any encumbrance. Mir Inayat Husain was not in debt. He was the full owner of the property. According to the finding of the trial Court, the dower of Mt. Ahmadi Bibi was Rs. 21,000 and the whole of that amount was still unpaid. There was no legal bar to Mir Inayat Husain transferring the property to his wife with a view to wipe off the dower debt. Nothing stood in between to prevent Mir Inayat Husain from making a gift of his entire property to his wife or to his wife's relations. Again, there are no circumstances which affect the probability of a design on his part to create a wakf. He appears to have been a man, with a religious turn of mind. At the time of the execution of the document, he had reached the mature age of 60. He had no progeny in the shape of sons or daughters or their descendants. His brothers were Shias, whereas he was a Sunni and as the learned District Judge puts it:
It is a well known fact that converts are the most perverse of all religionists.
17. The cumulative effect of these facts makes it extremely natural and probable that Mir Inyat Husain intended to execute a document of the nature and character which is now before us and that he, as a matter of fact, consciously executed the same with due deliberation and with full knowledge of its scope and legal effect.
18. No hostile inference can be drawn from the fact that there was some delay in the mutation of names. We already know that the document was executed on 7th April 1922. The mutation was not effected till sometime in May 1923. Under the terms of the document the settlor declared, in unequivocal terms, that he had extinguished his proprietary interest in his entire property, had made a wakf thereof for the sake of God, had withdrawn his proprietary possession therefrom and had constituted himself a mutawalli for his lifetime. The finding of the lower appellate Court is that the wakf had satisfactorily divested himself of his interest in the property as a private individual and that certain payments had been made to the beneficiaries of the trust, notably to his nephews and to the Qurania school of Jaunpur. A delay in the mutation proceedings, under the circumstances, does not and cannot lead to the inference that the object of the settlor was not to create a trust. Where the settlor, after declaring the trust, appoints himself a mutawalli, the vital factor, which counts, is the transmutation of possession and where the character of the possession has altered by reason of the fact that possession is no longer held in the exercise of any right of ownership but vicariously for the benefit of the objects of the trust, the wakf prevails, in spite of the fact that there had been no mutation at all or that there was some delay in effecting the mutation.
19. In order to appreciate the arguments that the wakf was of an illusory character, it is necessary to summarise its essential features.
20. In the opening portion of the instrument, the executant states that he has made, in good faith for the sake of God, a wakf of his entire property detailed therein, without worldly object and in order to gain benefit in the next world and that he has withdrawn his properietary possession therefrom. The document closes with the words "I have therefore executed this deed of wakf etc."
21. The document proceeds to lay down a detailed scheme for the administration of the wakf property. The settlor has appointed himself as mutawalli for his lifetime. After his death Mt. Ahmadi Bibi, his wife, was to be the mutawalli. After her the tauliyat was to go to any child born of Mt. Ahmadi Bibi. In the absence of an issue the tauliyat was to vest in the eldest son in the lineage of the eldest male issue of Mt. Akhtari Bibi, who was the own sister of his wife, and the tauliyat was to continue in that line generation after generation. An option, however, was given to Mt. Ahmadi Bibi to nominate as mutawalli under a registered instrument any issue of her own sister's daughter Mt. Abdunnissa Bibi or any other proper person who must be najibuttarfain (that is, of good descent on both his father's and mother's side). In the latter case, however, the settlor places an important restriction; and the passage containing the said restriction may be reproduced:
But in any case, the foremost and necessary condition is this that no one other than a Sunni, who is regular in saying his prayers and keeping fasts and who is a follower of Imam Abu Hanifa (may God bless him) of whom I, the executant, am myself a follower, shall and can be appointed a mutawalli.
22. The settlor further reserves to himself the power:
to change or make alterations in the aforesaid line of males and adopt another method and appoint another mutawalli, if it seems reasonable in accordance with the conditions laid down in the instrument.
23. The wakfnama does not state what the net income of the property amounts to; but the Courts below have found that it comes to Rs. 1,500 per annum or Rs. 125 per mensem.
24. The wakfnama contains a detail of the objects upon which the income has to be spent and these details have been set out in the judgment of the trial Court and may be usefully reproduced with slight verbal variations:
(1) For providing the usual paraphernalia necessary for the upkeep of a mosque situate in Mohalla Fatehpura alias Mohalla Rasmandal and for paying the salary of the Muezzin and other expenses relating to the mosque.
(2) Rupees 5 per mensem ought to be paid to the Qurania school maintained in the Jumma Masjid, Jaunpur.
(3) For the annual celebration of Milad Sharif in a suitable manner and on a proper scale on 12th of Rabi-ul-awwal of every year.
(4) (a) For the repairs of the dedicated house.
(b) For personal expenses of the mutawalli,
(c) For help and support of the indigent and the poor.
(d) For other charitable and religious purposes.
(5) For the payment of a reader of Quran for the benefit of the soul of the donor.
(6) After the death of Mt. Ahmadi Bibi, for the payment of another reader of Quran for her benefit.
(7) Rupees 5 monthly or Rs. 60 per anumm to each of his three nephews namely Ghulam Hussain, Dildar Husain and Faiyaz Husain and to their deecendants for ever. If any of them dies childless, the manual amount due to him shall be paid to the remaining aforesaid persons or to their male issue. In case of the absence of a male issue, it will be paid to a female issue. If perchance there remains none in their lineage at any time, the said amount shall be spent on other charitable deeds... should the said persons or any one of their children desire to get the amount in a lump sum in lieu of the said profit of his share for paying the debt to be due by him, I, the executant, and after my death every mutawalli shall have power to pay in cash at the rate of Rs. 1,000 for each annual amount of Rs. 60 aforesaid out of the income of the wakf property and obtain a deed of relinquishment of claim.
25. It has been argued that on a proper construction of this document, the settlor, in fact, transferred the bulk of the property to his wife and after her, to the descendants of the wife's sister from generation to generation and the effect of the document was to create a perpetuity in favour of the descendants of the wife's sister of Mt. Obedunissa if Mt. Amadi Bibi so chose to elect.
26. The objects of the trust having been clearly defined in the instrument, it will be nothing short of a breach of trust on the part of the mutawalli not to fulfil those objects but to appropriate the usufruct for his or her personal benefit. No specific sum appears to have been set apart for the maintenance and support of the wakif in his character as wakif or in his character as mutawalli. It is, however abundantly clear from the scheme of the entire document that the wakif or the mutawalli had to maintain himself out of a portion of the usufruct of the property but that it was imperative on him to give effect to the other objects which have been circumstantially detailed in the instrument. Under Section 3, Mussalman Wakf Validating Act (Act 6 of 1913), it is lawful for a Hanifi Musalman to create a wakf inter alia of his own maintenance and support during his lifetime. It was to be remembered that the aforesaid Act is an enabling statute and apparently this portion of the enactment was made with the object of removing the disability resulting from the view taken by some of the Mahomedan jurists that it was not lawful for the wakif to "eat" out of the wakf property. Under the Mahomedan Law, a mutawalli who is not the founder of the trust, has no power whilst in health to appoint a successor or to formulate any scheme for succession to the office of the mutawalli. This restriction does not apply to the founder of the wakf, who in reason and equity ought to nave a free hand in the matter of nominating and appointing a mutawalli for the administration of the trust in praesenti and in laying down a detailed scheme as regards the succession to the office of the mutawalli. He is competent to nominate the successors by name or to indicate the class together with their qualifications from whom the mutawalli may be appointed or to invest the mutawalli with power to nominate his or her successor after death or abandonment of office. The fact that the settlor appointed his wife as his successor to the tauliyat or invested her with power to appoint a successor from the male issue of her sister or from among any other proper person belonging to the founder's family who were particular about their roza and namaz and fulfilled the further condition of being najibuttarfain is not a circumstance which in any way militates against the provision of the Mahomedan Law. It is patent that his brothers and the other male issues of the brothers' family were all Shias and the founder may well have had conscientious scruples in appointing them as mutwallis or in indicating them as a class from which a mutwalli might be appointed. In any case, the condition relating to the appointment of the mutwalli or the successor of the mutwalli is not indicative of the fact that the trust is illusory.
27. The gift is further assailed on the ground that the amount set apart for charity and other pious purposes is comparatively small in amount and is of an illusory character because of its uncertainty. Since the passing of the Mussalman Wakf Validating Act the matter is now beyond the reach of controversy that the creation of an endowment for the maintenance and support wholly or partially of the family of the founder, of his children or descendants and for his maintenance and support during his lifetime is lawful, where the ultimate benefit is expressly or impliedly reserved for the poor or for any other purpose recognized by the Mohamedan law as a religious, pious or charitable purpose of a permanent character. The objects of immediate benefit under the instrument are: the Qurania School, the celebration of Milad Sharif, the help of the poor, the payment of a reader of Quran, the repairs of the dedicated houses, the personal expenses of the mutawalli and payment of Rs. 60 per annum to each of the three nephews. There is no uncertainty about these objects. The provision regarding the carrying on of these objects is not optional but mandatory and as such binding upon the conscience of the mutawalli or trustee. It is true that the amounts for many of the objects named above have not been allocated or de-fined, but the fulfilment of those objects is compulsory and is not left to the discretion of the mutwalli. The indigent or the poor share in the immediate present with the other objects of the trust. There is also an ultimate reservation in express terms in favour of other charitable deeds if the trust in favour of the nephews fails by reason of the extinction of their lines. Our attention was drawn to the decision of the Judicial Committee in re Mujibunnissa v. Abdul Rahim (1901) 23 All. 233. The legality and validity of a wakfnama executed by Munshi Sayed Meharban Ali in October 1889 was in controversy. The Privy Council held that no wakf was validly created as the document was not properly presented for registration by or on behalf of the settlor during his lifetime. The Privy Council further found that some of the conditions in the instrument were of an illusory character inasmuch as the wakif, during the term of his superintendence, and after him every mutwalli had the power to spend or withhold expenses from the various objects of charity enumerated in the document and it was to be optional to him to create new allowances, to reduce, enhance or to put a stop to the allowancas of the persons receiving allowances. No other recipient of allowances or relative was to have power to take an account from the mutwalli.
28. The main object of the instrument was to create a family endowment and any liberality to religious and charitable purposes was left to an uncertain and discretionary amount. Apart from the fact that the instrument was created long before the Mussalman Wakf Validating Act, the terms of the document clearly indicated that the wakf was a family perpetuity in disguise. The conditions in the document in controversy now before us are essentially different. In Mohammad Shafiq Ahmad v. Mohammad Mujtaba A.I.R. 1928, All. 660 the principal question for determination upon which the appeal hinged was as to whether the wakf in dispute was a private trust or a public charitable trust within the meaning of Section 92, Civil P.C. It was held upon the authority of Mujibnissa's case [1901] 23 All. 233 which has already been referred to and of Mohammad Munnawwar Ali v. Razia Bibi [1905] 27 All. 320, that the trust in question was not a public charitable trust and that the trust in favour of charity was negligible and illusory. The following remarks clearly differentiate this case from the facts now before us:
In the present case, there was no obligation on the wakif himself to spend any particular sum on charity. The amount to be spent by his successors is very small, both absolutely and relatively to the total amount of the income of the wakf and the discretion given to the mutwalli in spending it is as wide as can possibly be; so that, as I have said, it would be practically impossible to control him in dispensing it etc.
29. There is nothing in the Mahomedan law to invalidate a wakf, where the objects of the endowment are clear and certain, simply for the reason that no defined portion of the property or specified amounts of the usufruct have been dedicated to charity or other religious, pious or charitable purposes of a permanent character recognized by the Mahomedan law.
30. It has next been argued that the provision for the maintenance of the three nephews and of their descendants, generation after generation, offends against the rule against perpetuity and is opposed to the Mahomedan law as construed by the Privy Council in a series of cases like Abdul Fattah Mohammad Ishaq v. Rasamaya Dhur [1895] 22 Cal. 619, and is not supported by Section 3, Mussalman Validating Act of 1913. It is contended that the word "family" in Section 3(A) includes only those persons residing in the house of the settlor for whose maintenance he is mainly responsible; and reliance is placed upon a decision of the Chief Court of Oudh in re, Abdul Maabud Khan v. Nawazish Ali Khan A.I.R. 1925, Oudh 301 there is no doubt that this decision is an authority for the proposition contended for as would appear from the following extracts; Family is a word which may no doubt have on occasions very wide connotation but we consider that its meaning is limited in the present instance by the words "children and descendants" with which it is associated, that is to say, that its application will not extend beyond persons whose maintenance can be required as more or less incumbent on the plaintiff in the nature of things so as to partake of the, character of the fulfilment of a pious obligation. It is difficult to see how the maintenance of such distant collaterals as cousins in the fourth or fifth degree can be viewed in any such light and the extension of the term "family" to such would logically involve its extension to much more distant kindred. We consider that the correct meaning of the word "family" in the subsection is that it includes only those persons residing in his house for whose maintenance the author of the trust is mainly responsible.
31. With great respect, we find it difficult to subscribe to the above view. We are of opinion that the word "family" was intended to be used in this section in a very large and extensive sense. The policy of the Act was to validate the creation of a wakf in perpetuity in favour of persons who happened to be the members of the family according to the popular acceptance of that term. Technically the word "family" may be taken to mean the collective body of persons who live in one house and under one head or manager; and includes within its fold a household consisting of parents, children and servants and as the case may be lodgers or boarders. Popularly, however, the term indicates persons descended from one common progenitor and having a common lineage. The nephews of the settlor are in this sense members of his family. It could never have bean the object of the legislature to exclude persons who were related by blood merely by reason of the fact that they did not reside in the house of the settlor or that the settlor was not normally responsible for their maintenance. There is nothing in Section 3-A to indicate that any such limitations were in the contemplation of the legislature. If these limitations are introduced, the result would be to considerably narrow down the scope and utility of the Act.
32. The word "descendants" in Section 3, Cl. A has some bearing upon the question under consideration. It clearly indicates persons descended from the settlor both in the male and the female line. A descendant is an individual irrespective of the sex proceeding from an ancestor in any degree. The daughters' sons and daughters' daughters do not reside in the same house as the settlor and have no claims upon his bounty. It is clear that descendants in the female line not residing in the house of the settlor and not maintained by him are within the Act and cannot be excluded from its purview.
33. According to the rules of Mahomedan Law as found in the authoritative texts it is lawful for a person to create a wakf in favour of his kindred (karabatdar or karabat or zu karabat) and no preference will be given to males over females (Amir Ali's Tagore Law Lactures, 1884, p. 328.) A nephew apparently is a karabatdar and as such a member of the settlor's family. In Musharraf Begam v. Sikandar Jahan Begam A.I.R. 1928 All. 516 at p. 1189 of 26 A.L.J.) it was observed that the word "female" had been used in the Mussalman Wakf Validating Act in its broad popular sense so as to include all relatives more or less dependant on the settlor, and that a daughter-in-law living with an Indian householder is undoubtedly a member of his family in that sense. A daughter-in-law living in the same house as the settlor and maintained by him is undoubtedly a member of the family of the settlor. It was not intended in this case to lay down the rule that where a person had community of lineage, being descended from,a common progenitor, he was not a member of the family unless he resided in the same house as the settlor and was maintained by him and indeed, the point did not arise.
34. We dismiss the appeal with costs.