JUDGMENT Ryves and Daniels, JJ.
1. The question for decision in these two connected, appeals is as to the validity of a deed of waqf executed by Abdul Ali Khan and his wife on the 26th of March, 1909. Abdul Ali Khan died on the 7th of May, 1917, and his wife shortly afterwards, and the present suit was brought by his brother Muhammad Ali Khan claiming possession of his legal share of the property as his heir under Muhammadan Law. Muhammad Ali Khan has died during the pendency of the proceedings and the appellants are his legal representatives. The parties to the suit are Sunnis. Muhammad, Ali Khan in his plaint denied that any waqf was ever dedicated and urged further that if there was a waqf it was fictitious and illusory. That a waqf name was executed has never been seriously disputed. The trial court, however, treated it as a waqf which would not really take effect until after the deaths of Abdul Ali Khan and his wife. It accordingly treated it as valid only to the extent of one-third of the property covered by it and decreed the suit as to the remainder. The learned Additional Judge, however, has upheld the waqf as valid and dismissed the suit. His findings are-
(1) That the dedication was substantial and real.
(2) That the dedication of the corpus was absolute and immediate.
(3) That the reservation of a life-interest in the income, even if it were the entire income, which it is not, limited to the life of the two settlors does not render the waqf illusory and testamentary.
2. The third finding is one of law. The first two findings are findings of fact, except in so far as the reality of the dedication may be a matter of legal inference from the facts found. The points which are taken in this Court are two: (1) That the waqf was invalid for want of delivery of possession; and (2) that the settlor and his wife retained complete control over the income during their joint lives and that this renders the waqf illusory and invalid, either altogether, or in the alternative, as held by the trial court, for the period of their lives.
3. The only ground on which the waqf is assailed under the first head is that no application for mutation of names was made by Abdul Ali Khan, though he lived for eight years after the execution of the deed of waqf. On the other hand, it is proved that under the deed of waqf he appointed himself as first mutawalli and expressly declared that he was holding the property henceforth as mutawalli and not as owner. This, according to the Accepted rule of Muhammadari Law, is sufficient, and it was so held by this Court in Abdul Jalil Khan v. Obedullah Khan (1921) I.L.R. 43 All. 416. This ground of attack, therefore, fails.
4. As regards the second plea, the suggestion that the waqf can be treated as a testamentary waqf may be rejected at the outset. A will is a document which may be cancelled by the testator at any time up to his death and only comes into operation at the latter event. Here there was an irrevocable dedication of the corpus of the property from the date of the deed. The provisions of the deed which are relied on as showing that the dedication was illusory are set out in the judgment of the trial court. They amount to this, that during the life-time of the settlor and his wife the amount to be spent on charitable and pious purposes was left entirely to their discretion, both as to the sum to be expended and as to the purposes for which it was to be spent. They were to spend as much of the profits as they deemed proper on charitable and pious purposes recognized by Muhammadan Law and the remainder for their support, and no one was to have the right to call them to account. This state of things was, however, confined entirely to the life-time of Abdul Ali Khan and his wife. It is not disputed that after their death the objects of the waqf were carefully specified and were proper objects, and that the mutawalli was directly bound to spend the money on those objects. The question is, therefore, substantially that stated by the learned Additional Judge, namely whether the reservation of what practically amounts to a life-interest in the income, as distinct from the corpus, is sufficient to invalidate the waqf. This question was first raised in the case of Jaun Beebee v. Abdollah Barber (1838) 1 Fulton 345. In that case five questions were referred t6 the maulvis for decision. The first question was:
Whether according to Muhammadan Law, an endowment to charitable uses is valid, when qualified by a reservation of the rents and profits to the donor himself during his life?
5. The maulvis alluded to the difference of opinion between the Imam Muhammad and the Imam Abu Yusuf on this point and agreed that the opinions of most of the learned upheld the view of Abu Yusuf who considered the waqf legal. Judgment was given accordingly. The same view was taken by the Bombay High Court in the case of Cassamally Jairajbhai Peerbhai v. Sir Currimbhoy Ebrahim (1911) I.L.R. 36 Bom. 214. It was suggested that Jaun Beebee's case had been dissented from in the Full Bench case of Bikani Mia v. Shuk Lal Poddar (1892) I.L.R. 20 Calc. 116, but this is not the case. The judgment was cited at some length by Ghose, J. (pp. 185-188) and also by Trevelyan, J. (p. 223 of the report), and was distinguished from the case before them, but neither of the Judges pronounced it to be incorrect.
6. The appellants have also referred to the Privy Council sailing in Mahomed Ahsanulla Chowdhry v. Amarchand Kundu (1889) I.L.R. 17 Calc. 498 : L.R. 17 I.A. 28. This ruling is in no way contrary to the view taken by the court below. The test laid down by the Privy Council for the validity of the endowment was that there must be a substantial dedication of the property to charitable uses at some time or other. Their Lordships also quote with approval the opinion of Kemp, J., in an earlier case that the mere charge upon the profits of the estate of certain items which must in the course of time necessarily cease, being confined to one family, and which "after the lapse will leave the whole property intact for the original purposes for which the endowment was made, does not render the endowment invalid under the Muhammadan Law".
7. In this case there was admittedly an ultimate dedication of the entire property to religious and charitable uses. The weight of authority is entirely in favour of the validity of the waqf. We accordingly dismiss both the appeals with costs.