Nawabiada Khajeh Atikulla And Ors. vs Nawab Khajeh Habibulla on 22 July, 1919
This very document was under consideration in the case of Habibullah v. Soleman Quader 53 Ind. Cas. 764; 80 C. h. J. 102; 24 C. W. N. 18. and the Court then came to the conclusion that as the gift to Charity was illusory, there Was no valid Wakf. We invited, however, the learned Vakil for the plaintiffs-appellants to address the Court on the Question of the legality of the Wakf irrespective of the decision of this Court in the case last mentioned. Bat he conceded that in view of the long series of decisions of the Judicial Committee, any attempt to support the validity of the Wakf would be futile. He did not also dispute that the Musalman Wakf Validating Act of 1913 was not retrospective in operation and could not validate the Wakf which was invalid in its inception. He argued, however, that as in the Court below the parties had proceeded on the assumed basis that the Wakf was good and valid, this Court was not competent to determine whether this assumption was or was not well founded. He contended in substance that although we must examine the provisions of the instrument in order to determine the rights of the parties, yet we most not form an opinion as to its legality, even though on the very fees of the document it was apparent beyond controversy that the object of the Wakf Was a perpetual family settlement with an ultimate illusory gift to the poor We are clearly of opinion that this contention cannot possibly prevail.