Patna High Court
Sayed Ismail Ali Khan And Ors. vs Musammat Hamidi Begam And Ors. on 2 April, 1921
Equivalent citations: 62IND. CAS.455, AIR 1921 PATNA 125
JUDGMENT Das, J.
1. The appeal arises out of a suit instituted by the plaintiffs-respondents for declaration of their title to, and for recovery of possession of, certain properties which admittedly belonged to one Mutammat Qamar un-nissa Begam, It is not disputed before us that the plaintiffs are entitled to a moiety of the estate left by Musammat Qamar un-nitsa Begum, whom it will be convenient to describe as the settlor, but it is urged that the settlor sometime before her death divested herself completely of all proprietary right in the properties in suit and created a valid wakf in respect of them nominating herself as the first mutwalli, and that consequently there was nothing to vest in the plaintiffs. We are in this appeal concerned with the question of the due execution and the validity of the deed of wakf, alleged to have been executed by the settlor on the 22nd November 1905. It is admitted that she died on the 14th November 1913.
2. In order to determine the validity of certain arguments that have been addressed to us, it is necessary to examine the grounds urged in the plaint for rejecting the deed of wakf. In the sixth paragraph of the plaint, the plaintiffs allege that the wakfnamah is not "real and genuine" and that the same was "not executed" by the settlor, and that "she had no knowledge of or information about the registration of her name as mutwalli," and that "her name was not registered as mutwalli with her knowledge and information," There is then an allegation that the settlor "on account of old age and continued sickness had lost the use of her senses and had not the mental capacity to understand the nature of the transaction," and the paragraph closes with a half hearted suggestion, hardly a suggestion at all, that Khurshed Nawab and Musammat Waris-un niesa Begum brought the document into existence in order to defraud the plaintiffs.
3. I may point out that Musammat Waris un-nissa Begum was a daughter of Amir Ali, the brother of the settlor, by his first wife, and that the contesting defendants are her children, Khurshed Nawab being her hug-band, and that plaintiff No. 1 is the widow and the other plaintiffs are the children of Saiyid Ali Naki Khan, who was the son of Amir Ali by his second wife. The allegations in the sixth paragraph are allegations of fraud practised on the settlor, not allegations of fraud practised by the settlor.
4. The allegations in the seventh paragraph are a repetition of those made in the 6th para graph with this difference, that it is stated that the wakfnamah was not acted upon nor given effect to during the lifetime of the settlor. This does not, in my opinion, amount to an averment that the settlor was herself a party to the fraud perpetrated, especially when we take note of the allegations made in the same paragraph that the name of the settlor "was fraudulently got registered as mutwalli by the ancestors of the defendants first party." The allegations made in this paragraph amount to an avertment that, as a fraud was practised on the settlor by Khurshed Nawab and his wife, nothing was done during her lifetime which could be referred to the wakfnamah, not to an averment that the settlor herself entered into an elaborate fraud with a view to divert the succession from the line of Ali Naki Khan to the line of Waris-un-nissa.
5. There is a distinct averment of fraud against Khurshed Nawab and Waris-un nissa in the eigth paragraph of the plaint, but there is again nothing to suggest that the settlor was herself a party to the fraud or that she intended the document as a cover for what was essentially a fraud on the heirs-at-law. Indeed no such case is made anywhere in the plaint, and, in my view, apart from the question of the validity of the walfnamah, assuming it to have been executed by the settlor, the only other question that arose, and properly arose, on the pleadings was the question of the due execution of the wakfnamah by the settlor. The issue as to the; due execution of the wakfnamah was a relevant issue and was properly tried by the Court below. The issue as to whether the settlor intended to create a trust in respect of the disputed properties was an irrelevant issue and should not have been tried by that Court.
6. I will first consider the question whether the due execution of the wakfnamah by the settlor has been proved. It is not easy to understand what the learned Subordinate Judge intended to find on this issue. The conclusion at which he arrived is expressed in these words:" I bold that the deed of wakfnamah is not valid and binding upon the plaintiffs, and that it was not executed by the lady with a view to creating a trust in respect of the disputed property and that she remained the owner and proprietor of the property down to the date of her demise."
7. I will consider the question of the validity of the wakfnamah separately: the issue as to the validity of the transaction is distinct and separate from the issue as to the factum of the transaction and ought not to have been confused with the latter issue. But on the issue as to the factum of the transaction, the language employed by the learned Subordinate Judge is somewhat ambiguous. The finding that the deed of wakfnamah was not executed by the. lady with a view to creating a trust in respect of the disputed property does not decide the question whether it was in fact executed by her. the reasoning employed by the learned Subordinate Judge may, however, assist us in discovering what he actually intended to find. He finds most distinctly that the deed of wakfnamah "was a device on the part of the defendants first party and their father Khurshed Nawab, who was then alive, to tie, up their property within their family and deprive Ali Naki Khan, who was the son of the other wife of Amir Ali."
8. With regard to the evidence adduced on. behalf of the defendants on the question of the execution of the wakfnamah by the settlor, the learned Subordinate Judge Aids, flat the identity of the lady has not been established beyond doubt; and with regard to the allegations made by the plaintiffs to the effect that the settlor was an old, deaf and imbecile lady, he finds that the plaintiffs' evidence on this point is quite worthless. The decision of the learned Subordinate Judge on this issue would appear to be that the defendants have failed to prove the due execution of the wakfnamah by the settlor, not that it was a device on the part of the settlor to defeat the rights of her heirs-at-law.
9. In my view, the decision of the learned Subordinate Judge on this point cannot be supported. There is both direct and circumstantial evidence in support of the defendants' case, and the surrounding circumstances are all in their favour. They have examined three witnesses on this point, two of them being Vakils of the Local Bar and men of undoubted position in the Muhammadan community. Maulvi Muhammad Akhtar is one of the attesting witnesses to the wakfnamah, and his evidence is that he read and explained the document to the settlor, and answered all the questions put to him by her. This evidence is not evidence of execution of the document by the settlor, and is of no value unless the identity of the lady behind the purdah is established. But if the identity is established, this evidence is of great value as establishing the fact that there was intelligent execution of the document by the settlor. the next witness, Maulvi Saiyid Ahmed Hussain, is also a Yakil. He is, in addition, a member of the Legislative Council, Bihar and Orissa, and a Fellow of the Patna University. He says that he had been the legal adviser of the settlor since 1890 91, and had conversation with her on many oooasions. He swears that the settlor came to his house and sought his advise regarding the wakfnamah and that he was present on the occasion of the execution of the wakfnamah by her. He says that he knew the voice of the settlor, and he is quite positive that the voice that spoke behind the purdah was the voioe of the settlor. This evidenoe, in my judgment, is very important, establishing, as it does, an intelligent participation by the settlor in the preparation and the execution of the wakfnamah. The comment of the learned Subordinate Judge on this evidence is remarkable :" In my opinion," he says, " witness No. 5" (referring to Maulvi Saiyid Ahmed Hussain) ' was really duped by his own memory and his evidence is open to criticism."
10. The only justification for this remark is the evidence of the witness that he did not remember, at the time when he was giving his evidence, whether the deed was executed on the date it bore. The deed bore the date the 22nd November 1905. He was giving his evidence on the 14th December 1917; and because he failed to answer the question whether the deed was in fact executed on the 22nd November 1905, it followed, according to the judgment of the learned Subordinate Judge, that his memory on the material question which he had to try, could not be relied upon and that his evidence was open to criticism. In my view, this is not a fair way of dealing with the evidence in the case. The last witness on this point was a menial servant in the settlor's household, whose evidence is dismissed by the learned Subordinate Judge with the following observations:--'The third witness No. 7 is a mere domestic servant, who says he happened to be present when the lady was sitting behind the purdah. He is an insignificant man, whose evidence does not commend itself to me."
11. I am by no means prepared to lay down so artificial a standard for testing the credibility of witnesses. I have often pointed out, but it is worth while repeating, that the safest method of testing the credibility of witnesses is to see whether the probabilities of the case and the admitted circumstances corroborate their testimony. Now if this witness is speaking the truth, the identity of the lady is established beyond doubt; but, of course, be may not have been speaking the truth. I propose now to examine the probabilities of the case and some of the admitted facts to see whether they corroborate the testimony of the witnesses examined on behalf of the defendants on this point.
12. In the first place, the settlor was a widow, having no children of her own. She was fairly old and she was about to set out on a long and difficult pligrimage to Arabia. She was undoubtedly a devout lady and was in the habit of performing the Tazia ceremonies and holding Majlises in connection with these ceremonies. Witness No. 1, ex. amined on behalf of the plaintiffs, admits that the settlor used to perform the Tazia ceremony in bet own Imambara. Hamidi Begum, one of the plaintiffs, admits that the Taza ceremony and Majlises were held in the settlor's Imambara during the Mohurram. She denies that the settlor was religiously disposed, but she has to admit that she used to perform the Tazia ceremonies with great eclat and had faith in God, the Prophet and religion. Now the whole object of the endowment was to make a permanent provision for the performance of the Tazia ceremony with the fixed Majlises. It is, in my view, not unreasonable to suppose that a lady who had no issue of her own, who had faith in God, the Prophet and religion, and who had for a number of years been in the habit of performing the Tazia ceremony, should be anxious, before setting out on a long and difficult journey to Arabia, to set the performance of these religious ceromonies in which she was interested on a sure foundation, so that it might not suffer for want of funds during her absence and after her death. In my view, the case of the defendants is inherently probable and is strongly corroborated by the surrounding circumstances, '
14. In the next place, she entered into a series of transactions which are explainable only on the hypothesis that the wakfnamah was in fact executed by her. In due course, she applied for registration of her name as mutwalli of the endowment in the Land Registration Department. On the 27th April 1908, be executed a power of-attorney in favour of Ali Naki Khan, describing the properties as wakf properties under the wakfnamah dated the 22nd Novemher 1905. She granted thika patta as mutwalli, and accepted kabuliyats as mutiwalli As mutucalli she in Stituted rent suite, too plaints being signed by her by the pen of Ali Naki Khan. The learned Subordinate judge, deiling with these documents, saye: "But, these were mere changes made on piper in order to keep up the appearance of trust in respect of the disputed property".
15. This criticism would be relevant only if it were the case of the plantiffs that the settlor was a party to a transaction which in fact and in substance v. as something different from what it professed to be; that, in truth, she was a party to the deceit, not a deceived party. If that were the case of the plaintiffs, I could understand the argument that if property is once put in the name of a fictitious owner, all subsequent acts would naturally be done in the name of that fictitious owner, and would all be completely explained by reference to the real nature of the transaction, But that is not the case of the plaintiffs and the learned Subordinate Judge did not try that case. The case of the plaintiffs is a short one, that the settlor never executed the wakfnamah. There is, in my view, no explanation how these documents could have been brought into existence by Khurshed Nawab and his wife, except with the know-ledge and the approval of the settlor. The subsequent course of dealings, in my opinion, strongly corroborates the case of the defendants.
16. Thirdly - and this is very important--the attitude of the two persons who, at the date of the execution of the wakfnamah, were the heirs of the settlor, cannot be ignored. Ali Naki Khan was one of the heirs, the other heir being Bakar Ali. The wakfnamah was executed on the 22nd November 1905 the settlor died on the 14th November 1913, If indeed the settlor had no knowledge whatever of the wakfnamah, it is difficult to believe that the two persons whose interest it was to denounce the conspiracy to the settlor, should themselves join in a conspiracy to conceal it from the settlor. Ali Naki Khan accepted a distinct benefit under the trust. Bakar Ali, it is true, did not accept an office in the trust estate, but it is reasonable to assume that, had the wakfnamah been a forged and a fabricated document, he would have acquainted the settlor with the real state of affairs. So far as Ali Naki Khan is concerned, an explanation is offered by the plaintiffs who claim through Ali Naki Khan, It is suggested that he suffered from mental derangement and was subject to fits of insanity. I will examine the value of this explanation in a moment; but, assuming that there is a complete explanation in his case, what explanation is there of the silence maintained by Bakar Ali for eight years between the 22nd November 1905 and the 14th November 1913?
17. Lastly, the events subsequent to the death of the settlor throw considerable light on the question of the factum, of the wakfnamah. After the death of the settlor, Bakar Ali applied for registration of his name in the Land Registration Department as the heir of the settlor. Ali Naki Khan was served with notice to appear in the land registration proceedings commenced by Bakar Ali. Ali Naki Khan appeared in these proceedings and filed a petition on the 8th January 1914, insisting that the settlor left no estate to which any one could succeed and that the properties in respect of which Bakar Ali claimed to be recorded were wakf properties having been dedicated by the settlor by the wakfnamah, dated the 22nd November 1905, The Deputy Collector allowed the claim of Bakar Ali, but the order of the Deputy Collector was set aside by the Collector, and the Commissioner maintained the order of the Collector by his order dated the 12th December 1914. Bakar Ali was apparently satisfied with the order of the Commissioner, for he never pursued his claim in the Civil Court. Now it is well known that land registration proceedings are merely a preliminary skirmish for securing the advantageous position of a defendant in an ejectment action in the Civil Court. Bakar Ali, it is true, did not secure that position, but the fact that he never came to the Civil Court tells, in my opinion, an eloquent tale The two persons who were most interested in denying the genuineness of the wakfnamah, have never challenged it in a Civil Court, Bakar Ali is still alive and was cited as defendant second party in the present action. The plaint filed in this suit admits the title of Bakar Ali to one-half of the properties in dispute. But it is significant that Bakar Ali did not enter appearance in the suit and failed to support his claim. So far as Ali Naki Khan is concerned, he has throughout insisted on the validity of the wakf. The plaintiffs claim through Ali Naki Khan, and, unless they can establish their case that Ali Naki Khan suffered from mental derangement, they must, in my view, be bound by the admission of Ali Naki Khan and, therefore, fail in the action.
18. This brings me to the question of the state of mind of Ali Naki Khan. The power of attorney in his favour was executed on the 27th April 1905, and Exhibit N establishes that, as late as the 15th August 1914, he sent a telegram to the defendant on his success in the land registration case. There is unimpenchable oral and documentary evidence to the effect that, throughout this period, he acted in discharge of his duties as the constituted attorney of the settlor, interviewing Pleaders, filing rent suits and doing other acts in discharge of his office. The plaintiffs, therefore, take a strong onus on themselves in seeking to establish that the person through whom they claim suffered from mental derangement. The documentary evidence in the case wholly fails to support their case. Exhibits A, A1 and A2 are plaints filed by Ali Naki Khan on behalf of the wakf. They are dated the 7th September 1911 and the 30th September 1912 respectively. On the 3rd October 1912, he filed a suit on his own behalf, claiming a certain property under a deed of gift alleged to have been executed in his favour by one Ali Mohammad Khan, He was examined as a witness on his own behalf on the 25th June 1914, and his deposition, Exhibit D, which I have carefully read, does not show that he suffered from mental derangement. On the 8th Junuary 1914, he filed two petitions in the Court of the Deputy Collector of the mutation department supporting the wakf against the claim of Bakar Ali. These petitions are Exhibits B and B1. On the 21st September 1913, he signed a thikn potta on behalf of the settlor in favour of one Bhuneswar Misra, On the 24th January 1914 he sent a telegram to the defendent complaining that Chaboo Sahab (that is to say, Bakar Ali) was about to break the look, no doubt, in pursuance of his claim to the estate left by the settlor. And on the 15th August 1914, he sent a telegram to the defendant congratulating him on his success in the land registration case. This is a formidable array of documents which must throw considerable suspicion on the case made by the plaintiffs, unless it be part of their case that there was a further conspiracy on the part of Khurshed Nawab and the defendants to make unauthorised use of the name of Ali Naki Khan in all these documents in order to create evidence in their favour. But that is not their case, and such a case has certainly not been established on the evidence. Turning next to the oral evidence, the first obvious matter for comment is that the plaintiffs have not tendered any medical evidence, although it is admitted by Hamidi Begum, the widow of Ali Naki Khan, that be was treated by Hakims and Doctors--Hyder Hossain being one of them. There is no explanation why these Doctors and Hakims ware not called. As regards the actual evidence produced, we may safely disregard the witnesses examined on behalf of the plaintiffs, as their evidence on a material point in the case, namely, the mental condition of the settlor at the time of the execution of the wakfnamah, has been disbelieved by the learned Subordinate Judge. All of them came to tell the story that the settlor was not in a fit condition to execute the wakfnamah, and the decision of the learned Subordinate Judge on this point is as follows: "As regards the plaintiff's allegation that Qimar-un nissa was an old, deaf, and imbecils lady, I must say that the evidence on this point is quite worthless."
19. If the evidence be worth less on this point, it can hardly be of much value on the question of the insanity of Ali Naki Khan, especially when, having regard to the documents in the case, that case is inherently improbable. Nor does it appear that, in arriving at the conclusion that Ali Naki Khan suffered from mental derangement, the learned Subordinate Judge relied on the evidence produced by the plaintiffs. He seems to have been impresied by the admission of Maulvi Saiyid Ahmad Hassain, who was examined on behalf of the defendants. His evidence an this point is as follows': "Ali Naki was not a mad man. His brain went wrong for some weeks. He was not incapable of managing his affairs. Ha used to come to me very often in connection with the affairs of Qumar-un nissa. Ali Naki told me that he was going to file a petition of confession in the land registration case opposed by defendants Nos. 1 and 2. Ha showed me a draft petition. 1 saw Ali Naki a few days before his death. I found him in normal condition of mind,"
20. 1 quite accept his evidence that Ali Naki's brain went wrong for a few weeks, but to say on this evidence that he was subject to fits of insanity is to deliberately misread the evidence of Saiyid Ahmed Hussain. It affords no explanation whatever of his attitude towards the wakf throughout the long period between the 27th April 1903 and the 15th August 1914. It certainly does not establish that he was insane or mentally inefficient at the critical period of the land registration case. In my view, the plaintiffs have wholly failed to substantiate their case on this point.
21. We are now in a position to test the value of the evidence on the factum of the wakfnamah. We have the direct evidence of Maulvi Saiyid Ahmed Hussain and of Muhammad Amir. Having regard to the admitted fast that the settlor was in the habit of spending a considerable portion of her income in connection with the Tazia ceremonies and Majlises, the story told by them is inherently probable. It is still mora probable whan we take note of the facts that the settlor was old, had no issue of her own, and was about to set out on a long and difficult journey to Arabia. The transactions into which the settlor enteral after the execution of the wakfnamah are explainable only on the hypothesis that she did execute the wakfnamah, The action or rather the inaction of Bakar Ali in not exposing the conspiracy to the settlor and the strong support which Ali Naki Khan has throughout given to the wakf against his own interest strongly corroborate the case of the defandants, Having considered the evidence with the utmost care and anxiety, I have come to the conclusion that the wakfnamah was read and explained to the settlor and was in fact executed by her with full knowledge of its nature and effect.
22. The next question which, in my view, does not really arise on the pleadings is, was the transaction a fictitious on a into which the Settlor deliberately entered with a view to alter the course of succession after her death? My difficulty in dealing with this question is that I am wholly unable to say whether the learned Sabordinate Judge intended to decide it. He has recorded a finding that the deed was not acted upon during the lifetime of the settlor and that it was not executed by her with a view to creating a trust in respect of the disputed property and that she remained the owner and proprietor of the properties down to the date of her death. But than he framed no issue on the point, and certainly the pleadings in the case would not justify him in framing an issue on this point. As I have said before, it is one thing to say that a fraud was perpetrated on the settlor, and quite another thing that she was herself a party to the fraud. The latter case has not been pleaded by the plaintiffs, and I have grave doubt whether the learned Subordinate Judge dealt with it. I will assume, however, that the question properly arose for decision and was decided by the learned Subordinate Judge against the defendants. It will be noticed that the learned Subordinate Judge threw the entire onus on the defendants to establish that the transaction was what it seemed. It has often been pointed out, but it will bear repetition, that every apparent, transaction must be assumed to be real until the contrary is established, and that the onus of establishing the contrary is on the person who asserts that the transaction is not what it seems. I am wholly unable to appreciate the reasons given by the learned Subordinate Judge for holding that the settlor did not in fact part with her proprietary interest in the property. The learned Subordinate Judge says: "Immediately after the execution of the deed the lady went on a pilgrimage to Mecca and stayed there for about two years. The deed recites that she had some debts at that time. It is not explained by the defence as to who defrayed her ex. penses for undertaking the expensive pilgrimage."
23. In my view, it was not fox the defence to give any explanation whatever; it was for the plaintiffs to establish that her expenses were met out of the trust properties. For a great many years she was in possession of the properties which yielded a fair income. She was a widow without any issue of her own. It is not wildly improbable that she had funds of her own, out of which she could and did defray her expenses. But the learned Subordinate Judge says she had debts; and strangely enough, for the truth of the statement that she had debts, be refers us to the wakfnamah itself. The statement about the debts is to be found in the 16th clause of the wakfnamah, which runs as follows:
I, the executant, have fixed the present income, i.e., the amount left after payment of Government demands and rents of landlords, approximately at Rs. 4,000; my milkiot property is at present in the lease of Mrs. Flora Thomy, proprietress, and Mr. G.R. Thomy, manager of the Indigo Concern at Kanti and one Kalam is in my seer possession. A considerable sum is due from the thikadar on account of rent. Accordingly a decree has also been passed in my favour against the said thikidar. J, the executant, shall as mutawalli commence and continue realising rents, etc, with effect from the agricultural season of 1313 Fasli and shall as proprietress recover rents on account of the previous year, i.e., 1312 Fasli, payable from the thikadar and tenants, and (recover) the dues payable under the decree already passed in my favour, because these rents are payable for the period previous to the execution of this deed, and I shall re-pay the petty loans standing against me by realising the money due under these heads.
24. If this clause establishes that she had petty debts, it also establishes that there was a considerable sum of money due to her from the thikadar which was at her disposal. If you are going to fasten on the defendants an admission alleged to have been made by the settlor, it is only fair that you should take the whole of the statement into consideration. The whole object of the learned Subordinate Judge was to convey the idea, in my view a false idea, that as she had debts, she could not possibly have had separate funds of her own out of which she could defray her expenses. I certainly think that it was not a fair way of dealing with the case, for the very clause in the wakfnamah which establishes that she had debts, the settlor calls them petty loans, also establishes that she had to get a large sum of money from the thikadar which she was at liberty to treat as funds belonging to her. The rest of the arguments employed by the learned Subordinate Judge need not be noticed. They all suffer from the original vice, that is to say, the learned Subordinate Judge thought that it was for the defendants to establish by cogent evidence that the transaction was what it purported to be.
25. There is one matter, however, which is worthy of notice, and it is this: If the transaction was a fictitious one deliberately entered into for the purpose of defeating the claim of Ali Naki Khan, then it is certainly remarkable that Ali Naki Khan should not only have actively supported the transaction during the lifetime of the settlor but have refused to put forward his claim on the death of the settlor. The attitude taken up by Ali Naki Khan is the severest condemnation of the case put forward by the plaintiffs,
26. There is another matter to which I must refer. So far back as 1866, the Lords of the Judicial Committee observed as follows in a case where it was contended that a translation was different from what it appeared to be: "Undoubtedly there are in the evidence circumstances which may create suspicion, and doubt may be entertained with regard to the truth of the case made by the appellant; but in matters of this description it is essential to take care that the decision of the Court rests not upon suspicion, but upon legal grounds, established by legal testimony" Sreemanchunder Dey v. Gopaulchunder Chuckerbutty 11 M.I.A. 28 at p. 43 : 7 W.R. 10 (P.C.) : 2 Sar. P.C.J. 215 : 1 Suth. P.C.J. 651 : 20 E.R. 11. On the 7th December last, their Lordships re iterated the principle and acted upon it in a case full of suspicious circumstances, where a conveyance by a judgment debtor was attacked by the decree-holder, on the ground that the purchase was a benami transaction Seth Mani lal Mansukbhai v. Raja Bi(SIC)oy Singh Dudhoria 62 Ind. Cas. 356 : 25 C.W.N. 409 : (1921) M.W.N. 80 (P.C.). In my opinion, the plaintiffs have not established that the settlor did not part with her proprietary interest in the property conveyed by her.
27. I now come to the last Question that has been argued before us, namely, the validity of the wakfnamah. In dealing with this issue, the learned Subordinate Judge has mixed up two different and distinct matters-first, the validity of the wakf, and, secondly, the reality of the wakf. In my view the question of the validity of the wakf must depend on the construction of the wakfnamah and ought not to be confused with arguments showing that the transaction was an entirely fictitious one. With the latter question, I have dealt. The former question does not depend on the evidence in the case at all.
28. The learned Subordinate Judge makes three distinct points, first, that the wakfnamah did not fix her remuneration, with the result that she could appropriate for her personal expenses whatever she liked out of the income of the properties, secondly, that there is nothing to show that the permission of the owner of the Imambara was obtained before the creation of the wakf and thirdly, that the object of the wakf is too vague. In order to determine the first point it is necessary to discuss the provisions of the wakfnamah. The avowed object of the wakf was to make a permanent arrangement for the performance of the Tazia ceremony and for the holding of the Majlises. The first duty of the mutwalli was to pay out of the income of the trust properties the revenue and other Government demands and the rent due to superior landlords in respect of these properties. Her next duty was to meet such costs as are ordinarily incurred in due course of management. The expenses of the Moharram, Majlises and other Majlises in connection with the Tazia ceremony were to be met out of the surplus remaining after paying the revenue and other Government demands and meeting the necessary expanses for the due management of the properties. The dead lastly provided that whatever was left after meeting the expanses of Tazia and Majlises and paying the salaries of the employees should belong to the mutwalli. It is this last provision on which reliance was placed in the arguments addressed to us on behalf of the respondents.
29. I accede to the doctrine that it is essential to the validity of the wakf that the settlor should completely divest herself of her proprietary interest in the properties endowed. But can it be suggested that because she provided for the residue to come to her after every expense necessary for the maintenance of the trust has been incurred, that she retained a proprietory interest in the properties dedicated? It is not suggested that she was not entitled to a fixed sum as her remuneration due to her office as mutwalli. The argument before us took this form, "it was within her power as settlor to fix Rs. 50 or Rs. 500 or even Rs. 5,000 as her remuneration, so long as it was a definite sum," but it was not within her power to say, "I shall take as my remuneration what is left out of the income after meeting all expenses in connection with and incident to the wakf." I am unable to accept this view. I quite concede that the matter would have stood on a different footing if she had provided in the first instance for her personal expenses, and then directed the trust to be carried into effect with the residue of the income, Here there is a complete gift to the object of the trust with a charge on the residue for her remuneration as a mutwalli, not a gift in substance to herself with a charge on the residue for the object of the trust, Whenever a question of this nature is raised, the Court must see whether the provisions of the wakfnamah enable the mutwalli, without committing breach of trust, to take anything be likes out of the wakf properties. If they do--as for instance where the wakfnamah allows the mutwalli to appropriate in the first instance whatever he likes for his remuneration and directs the trust to be carried into execution with the residue of the income, the transaction cannot stand and must be set aside. I do not see how in the present ease, to quote the language of the learned Subordinate Judge: A carte blanche was given to Musammat Qamar-un nissa to appropriate the income of the property as much as she liked for her personal expenses." She could, of course, take whatever she liked, if she committed a breach of trust; but then she could commit a breach of trust whether her allowance was fixed or not fixed, and a trust does not fail because the trustee may commit a breach of trust. If she acted in accordance with the provisions of the wakfnamah, then she would only be entitled to the residue after meeting all expenses in connection with and incident to the wakf, and I can see no difference between a provision of this nature and a provision entitling the mutwalli to a fixed sum cut of the income of the trust properties, I hold that the trust does not fail because the remuneration of the mutwalli was not fixed in the wakfnamah.
30. The next point is wholly without substance. There is no allegation in the plaint that the permission of the owner of the lmambara was not obtained before the creation of the trust. the defendants were not at any time called upon to meet a case of this nature, and, as there is no suggestion either in the plaint or in the evidence that the ceremonies are not being performed in the Imambara mentioned in the wakfnamah, I do not think that the point is worthy of serious consideration.
31. The last point is that the object of the wakf is too vagne and cannot be carried into effect. The object of the endowment was to make a permanent provision for the celebration of the Moharram and the ceremonies in connection thereto. In the case of Delrus Banoo Begum v. Kazee Abdoor Rahman 23 W.R.R. 453 : 15 B.L.R. 167 the avowed object of the endowment was to perpetuate certain ceremonies for pious uses such as fatiha, hajria, etc., end to provide the expenses of the first ten days of the Moharram and of holy days, the repairs of an lmambara and of a certain tomb. Glover, J., delivering the judgment of the Court, thought, that, so far as words went, it was a wakf which would have bound the appropriator, but that, in the special circumstances of the case with which we are not concerned, it did not bind the appropriator. In the case of Biba Jan v. Kalb Rusain 1 Ind. Cas. 76 : 31 A. 136 : 6 A.L.J. 115 the settlor provided that a sum amounting to the larger portion of the income of the dedicated property should be applied annually towards the following purposes, vie., the celebration of the birth of Ali Murtezi, the expenses of keeping Tazias in the month of Moharram and certain other purposes. It was held that the objects for which the wakf was created were valid. In the case of Ram Churn Law v. Sahilzadi Fatima Begum 27 Ind. Cas. 442 : 19 C.W.N. 133 Imam, J, held that dedication of property for the due and proper observance of the annual Muhammadan festival of the Moharram is a valid dedication and operates as a wakf, I must hold, in accordance with these decisions, that the wakfnamah cannot be attacked on the ground that the object of the endowment is (to adopt the words of the learned Subordinate Judge) "most vague and indeterminate." In my view, the defendants have established the validity of the wakfnamah.
32. I would allow this appeal, set aside the judgment and decree passed by the learned Subordinate Judge, and dismiss the plaintiffs' suit with costs here and in the Court below.
Ross, J.
33. I agree.