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65. Accordingly the following gifts have been held void, viz., a gift for "such charitable or religious institutions and societies" as the trustees select (Grimond v. Grimond [1905] A.C. 124); "such charitable or public purposes as my trustee thinks proper" (Blair v. Duncan [1902] A.C. 37); "for charity or works of public utility" (Langham v. Peterson (1903) 87 L.T. 744); for "charitable or philanthropic purposes" (In re Macduff [1896] 2 Ch. 451); and for " public, benevolent, or charitable purposes " (Houston v. Burns [1918] A.C. 337). It is this line of authority which makes me think that English law is stricter than Mahomedan law. The Wakf Validating 'Act, 1913, refers to "religious, pious, or charitable" purposes. Even Section 92 of the Civil Procedure Code speaks of "public purposes of a charitable or religious nature."

66. But there is an exception which is of importance in the present case. Although a gift for public purposes generally is void as being so general and undefined that it cannot be executed by the Court, yet a gift for public purposes in a specified locality is a valid charitable gift. (See In re Allen [1906] 2 Ch. 400, 404). In the case cited there was a trust "for such charitable, educational, or other institutions of the town of Kendal, and also for such other general purposes for the benefit of the town of Kendal or any of the inhabitants thereof" as the trustees should think fit. It was held by Mr. Justice Swinfen Eady that the purposes to which the money could be applied were all limited to general or public purposes for the benefit of the town and its inhabitants, and therefore it was a good charitable gift.

115. What assistance then do the authorities give on this point ? The defendants rely on Zooleka Bibi v. Syed Zynul Abedin (1904) 6 Bom. L.R. 1058 and Kaleloola Sahib v. Naseerudeen Sahib (1894) I.L.R. 18 Mad. 201 as showing that only the tombs of saints are charitable, and that, according to the standards there mentioned, Chaudabhoy cannot be regarded as a saint. But in both those cases the facts were quite different, for the deceased persons were ordinary individuals. In the former case, Budruddin was an ordinary member of the family of the founder or Pir Syed Ahmed Rafai. He had no religious sanctity or any distinction whatever. He was just an ordinary Mahomedan husband whose memory his wife wanted to honour in perpetuity. The Judge held that he was not a saint, and that consequently the gift for the upkeep of his tomb was void for perpetuity. The same conclusion was arrived at as regards a second tomb, viz., that of Bismillae. So, too, in Kaleloola Sahib v. Nuseerudeen Sahib (1894) I.L.R. 18 Mad. 201 the settlor and her deceased husband were both ordinary individuals. As stated at page 213, the tomb was a private tomb. Further, as regards the ceremonies, it is clear that the learned Judges were influenced by the then decisions in Madras and England that gifts of property for masses for the dead were invalid on the grounds of public policy. The English decisions to that effect have now been overruled by the House of Lords in Bourne v. Keane [1919] A.C. 815 and presumably a similar course will be taken elsewhere. The "general rule of public policy" referred to in Kaleloola Sahib v. Nuseerudeen Sahib (1894) I.L.R. 18 Mad. 201, 214 no longer exists.

127. The next question is whether the objects of this trust are all charitable. If, for instance, the trust is for private and not for public purposes, the Advocate-General cannot intervene. In my opinion the purposes here are public purposes, viz., for the benefit of the Dawoodi Borah community. This large community is quite unlike the Dominican convent in Cocks v. Manners (1871) L.R. 12 Eq. 574, on which the defendants relied. Nor can I accept their argument that perpetuity is essential for a charitable gift. A donation may be charitable just as well as an endowment. But, if the donation can wholly be applied as income, it is often unnecessary to consider whether it is charitable and thus within the exception to the rule against perpetuities. Accordingly in Cocks v Manners, the Judge first held that the convent was not charitable because it only existed for the edification of its inmates, and then considered whether the gift was void for perpetuity. It was held that there was no perpetuity because although the Mother Superior was bound to bring the gift into the common fund of the convent, there was nothing to prevent the members from spending it as they pleased, viz., as income. Consequently the gift was valid and did not infringe the Mortmain Acts. In the present case I agree that the offerings when made do not necessarily involve a perpetuity, for presumably they can be applied at income. But it does not follow that they are not charitable.