Indian Kanoon - Search engine for Indian Law

After having thoroughly considered the evidence of the parties I am of opinion that it is established that the 'wakf' deed was duly executed by Mohammad Husain at a time when he was in his senses.

8. The learned Judge has also decided issue 2 in this suit which related to the genuineness, of the wakf and its being given effect to and its being executed by Mohammad Husain at a time when he had sound disposing mind in favour of the defendants. The case is not free from suspicion, but on the whole we have come to the conclusion that the finding of the trial Court on the due execution of the wakf should not be disturbed. There remains now the question whether the wakf having been duly made by Mohammad Husain is valid in law, and the first question which arises for consideration is whether the ultimate trust which is in favour of kare khair is void for uncertainty. A trust in favour of charity exclusively never fails for want of certainty and never fails by reason of indefiniteness or uncertainty of objects. Ever since the cases in Moggridge v. Thackwell (1792) 1 Ves J 464, Moggridge v. Thackwell (1802) 7 Ves 36, Moggridge v. Thackwell (1807) 13 Ves 416 and Mills v. Farmer (1815) 19 Ves 483 were decided by Lord Eldon, the law has been well settled in England that a trust for charity generally or a trust for charitable purposes to be determined by nominated trustees are perfectly good trusts. Equally well settled it is in England that where a trust is for charity or benevolence, or is a trust for charity or philanthropy or is a trust for charity or patriotism or is a trust for charitable or philanthropic or benevolent objects, such trusts are void for uncertainty. In all such Cases it has been held that the word "or" is, used disjunctively and such trusts permit the trustees to spend the trust funds either on charitable objects or the other alternative object which may be benevolent, philanthropic and patriotic and a trust for benevolence, philanthropy and patriotism is not exclusively charitable and, is void for uncertainty. But trusts for charity and benevolence or charity and philanthropy or for charitable and philanthropic objects where the word "and" is used conjunctively have been upheld.

9. The principle underlying the English cases of Chancery seems to be that where a trust is exclusively for charity, it will be upheld and it will never fail because the objects are not specified. On the other hand, if the trust is for benevolent objects, philanthropic objects or patriotic objects such objects may be charitable and may also include objects non-charitable. Therefore when a trust is a mixed trust with charitable and non-charitable objects and it is permissible to the trustee to spend the whole money on non-charitable objects without being called upon to account for maladministration it is void for uncertainty. In cases where a trust is in the alternative form, for example, for charitable ox benevolent objects, the option remains with the trustee to spend money on an alternative object which may be wholly non-charitable and therefore such trusts are regarded as void. But where the trust is for charitable and philanthropic objects it is possible to read 'and' conjunctively and here charity dominates and the philanthropic object has to be charitable and such a trust' comes within the principle where charity is the exclusive object of the trust. In Snell's Principles of Equity, Edn. 21st, at p. 102 the law is stated as follows:

(1) Where the objects of a private trust are indefinite, the trust fails; but a charitable trust will never fail for uncertainty, of objects. So long as the trust instrument shows a clear intention to devote the property to charity, it is immaterial that the particular mode in which the intention is to be carried into effect is left uncertain. A testator may simply direct the property to be applied for charitable purposes or for such charitable purposes as his executors or trustees may select : Mills v. Farmer (1815) 19 Ves 483; Moggridge v. Thackwell (1802) 7 Ves 36; In re Willis; Shaw v. Willis (1921) 1 Ch. 44. But in all cases where the particular objects: are left indefinite, the intention must he exclusively charitable, or the gift will fail. For instance if a testator directs the property to be used for such 'charitable or deserving' 'charitable or philanthropic,' 'charitable or benevolent, or 'charitable of patriotic' objects as his executor may select, the gift will wholly fail, for all deserving, philanthropic, benevolent or patriotic objects are not charitable, and it would therefore' be open to the executor, without committing any, breach of his duty, to apply the whole of the property to a non-charitable object. The trust cannot in such a case be said to be charitable, or, at any rate, not exclusively charitable : Morice v. Bishop of Durham (1805) 10 Ves 522, Hunter v. Attorney-General (1899) 1899 A.C. 309, In re Davidson; Minty v. Bourne (1909) 1 Ch. 567, In re Da Costa(1912) 1 Ch. 337, Att.-Gen. for New Zealand v. Brown ('17) 4 A.I.R. 1917 P.C. 133, Houston v. Burns (1918) 1918 A.C. 337, In re Chapman; Hales v. Attorney-General (1922) 2 Ch. 479, In re Davis; Thomas v. Davis (1923) 1 Ch. 225 and Attorney-General v. National Provincial Bank of England, Ltd (1924) 1924 A.C. 262. If, however, the executor is directed to apportion the property between undefined charitable and non-charitable objects, so that he could not, without breach of duty, appropriate all of it to the non-charitable objects, the trust will not wholly fail, for, in default of apportionment, by the executor, the Court would apportion the property equally between the two classes of objects, equality being equity, and the trust will only fail as regards the part apportioned to the undefined non-charitable objects : Salusbury v. Denton (1857) 3 K & J 529; In re Clarke (1923) 2 Ch. 407 Also objects described as 'charitable and deserving' or as 'charitable and benevolent will occasionally be construed simply as charitable objects the added words being treated as merely restrictive of the class of charities to which the property can be devoted : In re Best; Jarvis v. Birmingham Corporation (1904) 2 Ch. 354 and In re Eades (1920) 2 Ch. 353.

Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character.

16. In our opinion, if a Mahomedan settlor creates a wakf in favour of the poor or a trust for religious, pious or charitable purposes of a permanent character recognized by Mussalman law without specifying the religious, pious or charitable objects or he makes a trust for religious, pious or charitable purposes of a permanent character recognized by Mussalman law either one or the other or all or in any combination such a trust would be perfectly valid and should not fail simply because the objects were not specified. If a trust is for umure khair or kare khair, it is a question of construction in what sense the expression is used and if it is used in the sense of benevolent purposes or good purposes the trust will be void for uncertainty, but if it is used in the narrower sense of khairat it will be a good trust. So far as the question of specification of objects required by the proviso to Section 3, Mussalman Wakf Validating Act of 1913 is concerned, judicial authority is somewhat conflicting. In Ramzan v. Mt. Rahmani ('32) 19 A.I.R. 1932 Oudh. 71 a Bench of the Oudh Chief Court took the view that a specification of objects was not necessary. In Mt. Ahmadi Begam v. Mt. Badrun-Nissa ('40) 27 A.I.R. 1940 Oudh 324 already referred to, the majority of the Pull Bench of the Oudh Chief Court took the view that specification was necessary. The Lahore High Court is also in favour of specification : Punjab Sind Bank Ltd., Lahore v. Anjuman Himayat Islam ('85) 22 A.I.R. 1935 Lab. 596. With all respect we cannot agree with the view which insists on the specification of objects having regard to what we have said above. It remains now to interpret the document which is now before us. The settlor in this document states that: