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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:

14. Allied with a trust for khairat may be a trust for kare khair or umure khair or nek kam which expressions in one sense and more literally may be translated as good works and which expressions in another sense and in a narrower sense may be translated as charity and charitable works in the sense of khairat. In our opinion, it is a question of interpretation in each case in which sense the expression is used in a particular document. If the expression is used in the sense of good works there is no difficulty whatever. It will then be allied to a trust for benevolent purposes, philanthropic purposes in terms of English cases and to a trust for dharam in terms of Indian cases and is therefore void for uncertainty because good works may be non-charitable and the trustee may be able to divert the entire funds in non-charitable works without being called upon to account for maladministration. On the other hand, it is possible on the construction of a particular document to hold that kare khair is used in the narrower sense of a trust for charity and in those cases, in our opinion, the trust would be exclusively for charity and would not be void for uncertainty. There have been certain cases of Indian Courts in which a trust for kare khair has been held to be void for uncertainty : see Radhey Shyam v. Radhey Lal ('27) 14 A.I.R. 1927 Oudh. 213 and Gauri Shankar V. Mohan Lal ('40) 27 A.I.R. 1940 Oudh. 275. In this latter case the bequest was for nek kam. In Mt. Ahmadi Begam v. Mt. Badrun-Nissa ('40) 27 A.I.R. 1940 Oudh 324 the bequest was for umure khair; in Mariambi v. Fatmabai ('29) 16 A.I.R. 1929 Bom. 127 it was for dharam khairat wagaira joined together and there is a case in Mukarram Ali Khan v. Anjuman-un-nissa Bibi ('24) A.I.R. 1924 All. 223 in which a trust for umure khair allied with other works was held to be valid. We do not think that these cases lay down as a matter of law that in a, proper case on construction of a document umure khair and kare khair cannot be interpreted to mean charity in the narrower sense but if they do and if they contain anything which is inconsistent with what we have said above or with what we are going to say hereafter then with all respect we cannot agree.

20. These observations occur in connexion with the facts of that case where there was in the document a clear direction of an accumulation. In the instrument before us there is no clear direction of accumulation at all. The question of accumulation, if it arises at all, arises by implication in the sense that after the extinction of the line the fund allotted to it would remain undisposed of. It is permissible to argue that the intention of the settlor was that on the extinction of the line the fund reserved for the line would lapse to charity and would not accumulate or would be taken by the remaining line. After all the settlor in clear words has not expressed the direction to accumulate just as he has not in clear words expressed as to what would happen to the fund on the extinction of the line. The matter is not free from doubt. The trial Court has taken the view that the fund, if undisposed of, could not be utilized in charity or appropriated by the remaining line and was to accumulate. We have already held that the trust is void for uncertainty, and it is not necessary to express a final decision upon this topic and we propose to leave the finding of the trial Court on this part of the case also undisturbed. In the result the judgment and the decree of the trial Court are hereby affirmed and the appeal is dismissed with costs.