Syed Ahmed and Another vs Julaiha Bivi and Others

Patanjali Sashtri, J.—The only question raised in this appeal relates to the validity of a wakfnama executed by one Mahomed Hussain

Rowther, a Hanafi Mussalman, since deceased. His widow, the first respondent herein, sued her co-heirs for partition of his estate and for

accounts, impugning the validity of the wakf, and the Subordinate Judge of Mayavaram who tried the suit has upheld her claim, finding that the

wakf was not valid either under the Mahomedan Law as it was understood before the Mussalman Wakf Validating Act (No. VI of 1913)

(hereinafter referred to as the Act) or under the Act. From that decree the first defendant who is one of the trustees of the wakf has brought this

appeal.

The wakfnama (Ex. I) is in Tamil and is called "" wakf charity deed."" It has five schedules A to E attached to it, of which schedule D specifies the

particulars of charity to be conducted,"" and the remaining schedules describe the properties, lands, and houses, to which it relates. It recites that

those properties had been set apart for "" wakf charity "" '''' following the practice of our religion and in accordance with Act VI of 1913,"" and

provides that, out of the income derived from the properties at the end of each fasli, the kist, taxes and other charges should be deducted, and the

charities referred to in schedule D should be conducted at a cost of Rs. 160 per annum. The wakf''s three sons (defendants 1 to 3 in the suit)

should "" as trustees manage the remaining income after deducting the cost of charity."" The income from the lands specified in schedule C should,

after deducting expenses, be paid to his four daughters in equal shares during their lifetime and thereafter proportionately to their heirs hereditarily.

His wife (plaintiff) should enjoy the shop, item 2 in schedule A, and the lands referred to in schedule E during her lifetime and thereafter these

properties

shall be added to the charity referred to in schedule D.

His descendants should hereditarily conduct the said charity and

take only the remaining incomes after dividing them at the end of each fasli.

Then follow certain provisions for the devolution of the right to the surplus income and the right of management of the properties, which are not to

be alienated or made liable for the debts of any of the descendants. Proper vouchers and accounts are to be maintained in respect of the income

and expenditure of "" this charity estate,"" and if any trustee or all the trustees refuse to manage or resign the Civil Court should appoint

the Court of Wards or the necessary trustees in the vacant places till another trustee or trustees are available as aforesaid and see that the charity is

administered.

Should there be any litigation in Court when any injury or loss, etc., is likely to be caused to this deed or a portion thereof or the said charity, the

property being charity property, the plaintiff or defendant shall add the Advocate-General as a party or take his opinion and conduct the said suit.

The charities specified in schedule D are as follows:

In the building constructed by me in the name of T. Muhaitheen Andavar Avergal on the punja land bearing Resurvey No. 22/8 in the Anaikovil

village, Valkudi vattam, Nanhilam taluk and referred to in the Bschedule, one Mavulthu and one Hattam, one Hattam in the name of Nabi-

nayakam, one Hattam in the name of Shagul Hameed Andavar, one Hattam in the name of Meera Akamad Shakathari Avergal, and one Hattam in

my name after my death shall be recited on the full-moon day of every month, i.e.,on the 14th day of the lunar month, at a cost of Rs. 5.

On the 10th of Rabilavil of each year Mavulth shall be recited in the name of Nabinayakam in the Kattubapalli at Vijayapuram and food

distributed, at a cost of Rs. 100.

The learned Subordinate Judge has found that the annual net income of the lands specified in plaint Schedule A-1 (Schedule B of the deed) alone is

about Rs. 1,500 and that the provision for the charities costing only Rs. 160 per annum is an illusory trust and cannot be upheld as a valid wakf

under the Muhammadan law as expounded by the decisions of the Privy Council before the passing of the Mussalman Wakf Validating Act, 1913.

(Vide (1889) L.R. 17 I.A. 28 (Privy Council) (1894) ILR 22 619 (P.C.) (Privy Council) and Mujib-un-nissa v. Abdur Rahimb (1900) L.R. 11

M.L.J. 58 : 28 I.A 15 : ILR 23 All.233(P.C.).) This conclusion has not been seriously challenged before us by Mr. Venkatarama Aiyar on behalf

of the appellant. He contended, however, that, under the Act, the wakfnama was a valid charitable disposition notwithstanding the provisions

contained therein for the maintenance and support of the wakif''s family and descendants. The question accordingly arises whether the deed, Ex. I

fulfils the requirements of the Act.

The history of that legislation and the controversy which it was designed to set at rest are well-known. That controversy centred round the

question as to how far beneficial interests in property settled as wakf could be reserved in favour of the settlor or his family and descendants.

Broadly speaking, the decisions revealed two divergent trends of opinion traceable fundamentally to differences of outlook and approach. One line

of cases, largely influenced by English ideas of charity and charitable uses and the English law of perpetuities, held that if the gift was in substance

to the settlor''s own family and not to charitable purposes the wakf was illusory and void. While recognising that Mahomedan law ought to govern

a Muhammadan disposition of property and that, according to that law, provisions for the settlor''s family might be consistent with the creation of a

valid wakf, those decisions required that the dedication must in substance be for the benefit of others and not a mere colourable device for the

aggrandisement of one''s own family. They refused to act upon the spiritual precepts commending perpetual settlements on one''s own children and

descendants as pious acts of great religious merit. This view was favoured by the majority of the Full Bench in Bikani Mia v. Shuklal Poddar ILR

(1892) Cal. 116 and was upheld by their Lordships of the Privy Council in (1894) ILR 22 619 (P.C.) (Privy Council) affirming the decision in

Rasamaya Dhur Chowdhri v. Abul Fata Mahomed Ishak ILR (1891) Cal. 399. The other view, for which the dissenting judgment of Ameer Ali,

J., in Bikani Mia v. Shuklal Poddar ILR (1892) Cal. 116 may well be regarded as the locus dassicus, insisted that the question must be

approached purely from the point of view of Islam in which law and religion are closely connected, and that, in determining what are valid objects

of wakfs guidance must be sought from scriptural ordinances and works of Mahomedan jurists. The learned Judge held, after an elaborate

examination of recognised Islamic authorities, that support of one''s own family and descendants was an approved form of charity, and a perpetual

settlement of property for such purpose and for the ultimate benefit of the poor or some other pious, religious or charitable object of a permanent

nature was valid, although such ultimate trust might not be express but might be implied. Heconcluded his judgment by voicing the protest of his

community in the following words :

To hold that a wakf the benefaction of which is bestowed wholly or in part on the wakif''s family and his descendants is invalid would have the

effect, in my opinion, of sweeping away an important branch of Mussalman law with which are associated and intermixed the dearest religious

interests bfthepeople. (P. 176.)

The protest eventually found an echo in the Council Chamber, and in response to the demand of the community the Legislature passed the Act

superseding the Privy Council decisions referred to above and declaring the law more conformably to the views and sentiments expressed in the

judgment referred to above.

Turning now to the provisions of the Act, Section 2(1) defines

wakf"" as ""the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman

law as religious, pious or charitable.

Section 3 declares:

It shall be lawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of

Mussalman law, for the following among other purposes:

(a) For the maintenance and support wholly or partially of his family, children or descendants, and

(b) where the person creating a wakf is a Hanafi Mussalman also for his own maintenance and support during his lifetime or for the payment of his

debts out of the rents and profits of the property dedicated:

Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the

Mussalman law as a religious, pious or charitable purpose of a permanent character.

No such wakf shall be deemed to be invalid merely because the benefit reserved therein for the poor or other religious, pious or charitable purpose

of a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the wakf.

The combined effect of these provisions is that a perpetual settlement of property for the maintenance and support of a Mahomedan settlor''s

family, children or descendants is perfectly valid, provided that the ultimate benefit of the disposition is expressly or impliedly reserved for the poor

or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose, although such reservation is to take effect

after the extinction of the family, children or descendants.

It does not appear to have been seriously suggested in the Court below that the purposes specified in Schedule D of Ex. I are not valid objects

of a wakf. On the other hand, the allegation in the plaint (para. 7) that

one of the fatihas to be performed is that of Muhammad Hussain himself after his death which is not a valid object of a wakf

would seem to imply that the other objects specified are valid objects. This probably explains the absence of any clear and precise evidence as to

the nature of these ceremonies and services"" and their significance and efficacy in Islam. An attempt, however, was made before us by Mr. Pocker

for the respondent to show that none of them could be regarded as charitable in the sense of being for the benefit of the poor or of the public. It

was broadly contended by the learned Counsel that unless there was an element of public benefit or welfare no object or purpose could be

regarded as charitable under the Act, and reliance was placed on the decision in Kunhamutty v. Ahmad Musaliar (1934) 68 M.L.J. 107 : ILR 58

Mad. 204 where it was held that reciting Koran over the tomb of a private person was not a valid object of a wakf under the Muhammadan law.

There are no doubt passages in the judgment which may appear to lend some support to the contention of Mr. Pocker, but reading the judgment

as a whole we do not think that the learned Judges (Beasley, C.J. and King, J.) intended to lay down that there can be no valid dedication of

property by way of wakf except for purposes which are recognised as charitable in English law. Refuting the argument that the Act widened the

scope of the objects for which a wakf could be created under the Muhammadan law, they observed:

In our view no change in the law was brought about with regard to the purposes, namely, religious, pious or charitable. Those purposes had always

previously been recognised and this is perfectly clear from the Privy Council decision Ramanandan v. Vava Levvai Marakqyar (1916) 32 M.L.J.

101 : L.R. 44 IndAp 21 : ILR 40 Mad. 116 (P.C.) and Ors. cases and it is not right to say that the words ''or charitable'' really provide an

alternative to religious and pious''.

That is to say, as we understand it, in Muhamadan Law religious and pious purposes were always recognised as charitable. The point actually

decided was that reading the Koran at the tomb of dead persons was not a charitable object under Muhammadan law, a view with the correctness

of which we are not here concerned. No doubt, charity in the English sense was in some cases assumed to be an essential element in the

constitution of a wakf, a tendency deprecated by Ameer Ali, J., in the judgment referred to above. But the Act has made it perfectly clear, that, in

the context of Mussalman wakfs, "" religious, pious or charitable purposes "" refer only to purposes ''recognised'' as such by the Mahomedan law.

We cannot therefore accede to the suggestion that the test of a valid object of a wakf is benefit to the public as in the English law of charitable

trusts. Pious acts recognised among the Mussalmans as being for good of the soul of the settlor or his ancestors have been upheld as valid objects

of a wakf. In the judgment already referred to Ameer Ali, J., observes thus:

Among the Mussalmans, it is the general practice to invoke the names of their deceased ancestors at certain religious festivals, especially the Shah-

e-barat, commonly called the Shubrat, to spread flowers and light candles or chiraghs over the grave of the deceased, to have the Koran recited,

particularly if the family is possessed of means, on the spot where he died. Herklot in his Qamon-i-hslam describes the ceremonies performed at

the time of Shubrat or Shah-ebarat. In the month of Ramazan, on one of the nights believed to be the '' night of excellence '' mentioned in the

Koran, '' when the angels and the spirit descend to the earth at the command of their Lord '', it is usual to offer fatihas for the dead; also in Rajjab,

the month of the Ascension ''.

Learned Counsel referred us to the judgment of Karamat Hussain, J., in Fakhr-ud-din Shah v. Kifayat-ul-lah (1910)7 A.L.J. 1095 where that

learned judge expressed the opinion that though the "" orthodox "" fateha ceremony of reading the Al fateha or the beginning of the Quran for the

benefit of the soul of a dead Mahomedan was a recognised religious practice, the fateha ceremony in the "" popular sense "" of preparation of food

or sweets at the death anniversary of a deceased Mahomedan which after the recital of the fateha is distributed among the friends and relations of

the person who spent the money over it without any regard to the poverty of the recipients was neither a religious nor a charitable purpose. As we

have already observed, there is no clear evidence in the present case as to the nature of the services and ceremonies required to be performed

which are admitted in the plaint to be fatehas (para. 6), and it is not possible to say whether they are of the "" orthodox "" or the "" popular "" variety

described by the learned Judge. Apart from this, his view has not been generally accepted (vide Mulla''s Mahomedan Law, 12th edition, page

155). And whatever doubt may arise as to the true character of the other purposes mentioned in schedule D of Ex. I, the purpose last mentioned,

viz., the recital of Maullud Shariff in the name of Nabinayakam (singing verses in praise of the Prophet) in the Kattubapalli (Mosque) at Vijiapuram

and distribution of food on the birthday of the Prophet is certainly one that would be denominated charitable even in the English sense. We are

therefore of opinion that the objects specified in schedule D of Ex. I must be held to be religious, pious or charitable under the Muhammadan law.

It is next urged that the requirements of the proviso to Section 3 are not satisfied and that the wakf is not protected under the Act. The proviso

requires that there must be an ultimate trust, express or implied, for the poor or for any other unfailing religious, pious or charitable purpose

recognised by the Muhammadan law. In the wakfnama before us there is an express ultimate gift to the charities in respect of the properties which

are to be enjoyed by the settlor''s wife (plaintiff), but there is no express reservation of the ultimate benefit of the other properties in favour of those

charities on failure of his children and descendants. The question is whether such reservation can be implied from the terms of the instrument read in

the light of the surrounding circumstances.

As stated already, the deed is described as a "" wakf-charity deed"" and recites that the author ""following the practice of our religion and in

accordance with Act of 1913 "", had "" relinquished "" the properties therein comprised in favour of the ""wakf-charity"". It is also worthy of note that

the general scheme of the disposition is to endow the properties to the charities named, with a condition that, subject to their performance as

directed by the settlor by his sons who are appointed "" trustees"", the surplus income is to be distributed among his children and their descendants

from generation to generation. As pointed out by Ameer Ali, J.:

a man may make a wakf either directly constituting himself and his descendants the recipients of the benefaction with an ultimate reserve for the

poor; or may make a wakf in general terms or expressly in favour of the poor and reserve the usufruct for himself and his family so long as they

exist. The dedication is valid in both cases.

It is no doubt a matter of form. But it seems to us that an inference of ultimate trust for the poor or for other unfailing charitable object would arise

more readily where the latter form was adopted as in the present case; for, the charge on the usufruct in favour of the family must necessarily lapse

on the extinction of the family in the course of time, leaving the whole profits for the object for which the properties were originally endowed.

Furthermore, the wakfnama Ex. I provides for the Advocate-General being added as a party to any litigation arising in regard to the properties or

his opinion being taken for conducting it, and refers to the properties as "" charity properties "" which are to be inalienable and not answerable for the

debts of the beneficiaries. These terms taken along with the provision for the augmentation of the charity fund by the plaintiff''s share lapsing into it

on her death indicate clearly to our minds that it was the settlor''s intention that the entire usufruct should ultimately go to the specified charities on

the extinction of the line of his descendants.

Our attention was called to certain decisions of the Allahabad and Calcutta High Courts holding that the Act, on its true construction,

precluded any inference of an ultimate trust to charity being drawn from the mere use of the term "" wakf"" by the settlor. Although, as we have

pointed out above, there is much more in the wakfnama before us than the mere use of the word "" wakf"" to warrant the implication of an ultimate

reserve for the charities named, the line of cases has to be considered as we have relied also on the use of that expression in Ex. I in support of our

conclusion.

The earliest decision on the point brought to our notice is Irfan Ali v. Official Receiver, Agra ILR (1930) All. 748 where, on a difference of

opinion between two other Judges, Mukerji and Banerji, JJ., it was held that the mere use of the word wakf could not in itself be regarded as

connoting an implied reservation of the ultimate benefit for the poor. "" The ultimate object of the wakf has to be implied by use of other words.

The reason is best given in their own words:

The word '' wakf has been used in the Act itself (section 3) and it has been given a definite meaning. The word has not been used by the

Legislature as meaning a dedication for the benefit of the poor alone. It includes a dedication for religious and pious objects as well. Some

authorities have been quoted before us which go to show that where the word '' wakf has been used in a deed the ultimate benefit from the

property goes to the poor on the extinction of the immediate object of the dedication. This would mean that the word '' wakf has been used under

the ordinary Mahomedan law in a restricted sense. The Legislature, however, has given it a much larger sense.

With all respect, the reasoning is unconvincing and seems to us to proceed on a somewhat imperfect appreciation of the principles of the

Mahomedan law relating to wakfs. It is difficult to see why the use of the word in the Act itself should be taken to exclude any implication of an

ultimate trust for the poor when the word is used by a settlor in his deed of endowment. It is not correct to say that under the ordinary Mahomedan

law the word wakf is used in the restricted sense of a dedication for the benefit of the poor alone and that the Legislature has given it a much larger

sense so as to include dedication for religious and pious objects as well. A reference to Mulla''s Principles of Mahomedan Law (12th edition, p.

155) will show that a variety of religious and pious purposes had all along been recognised as valid objects of a wakf before the passing of the Act.

As pointed out by Ameer AH, J., in the judgment to which we have already referred,

It is unquestionable that there are many wakfs which have not the remotest connection with the poor, e.g., a wakf for a mosque.

Indeed, their Lordships of the. Judicial Committee observed in Ma Mi v. Kallander Ammal (1926) 52 M.L.J. 362 : L.R. 54 IndAp 23 : I.L.R.5

Rang.7 (P.C.) that the definition of "" wakf"" in the Act was only a definition for the purposes of the Act and not necessarily exhaustive, thereby

indicating that under the ordinary Mahomedan law, the term is used not in a narrower but in a wider sense. The reason for implying an ultimate

dedication for the poor is this. An essential condition for constituting a wakf is that the gift must be perpetual, but where a man purports to create a

wakf"" in favour of his family and descendants the condition of perpetuity is not. fulfilled as such a class of beneficiaries must in course of time

cease to exist. An ultimate trust is therefore implied in favour of the general body of the poor, who are always with us and so form a permanent

object of benefaction. As Ameer Ali, J., observes:

When a wakf is created constituting the family or descendants of the wakf the recipients of the charity so long as they exist, the poor are expressly

or impliedly brought in not for the purpose of making the wakf charitable (for the support of the family and descendants is a part and parcel of the

charitable purpose for which the dedication is made) but simply to impart permanency to the endowment. When the wakif''s descendants fail it

must come to the poor. So it is an enduring benefaction.

This is not however, to say that the implication of ultimate trust should necessarily and always be made in favour of the poor. When the settlor

creates a "" wakf"" partly for the maintenance and support of his family and children and partly for a specified charitable purpose such as for instance

the support of a mosque, an ultimate reversion of the fund bestowed on the family could well be inferred in favour of such charity; for, where a

settlor has indicated a preference for a specific religious or charitable purpose of a permanent character by making a concurrent gift for it or

otherwise, the condition of perpetuity can be fulfilled by implying an ultimate reservation in favour of such object, and it would not be necessary in

such a case to bring in the poor. The proviso to Section 3 accordingly contemplates the reservation of ultimate benefit being implied either in favour

of the poor or for any other purposes recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character.

There is, therefore, nothing in the Act to preclude an ultimate dedication to the poor or other charitable object being inferred from the use of the

word "" wakf "" by a settlor in constituting a family wakf.

On the other hand the circumstances that led to the passing of the Act to which reference has been made already would seem to. indicate that

the Legislature has deliberately adopted the view of Abu Yusuf who propounded the doctrine of implied reservation of ultimate benefit to a

perpetual object of bounty such as the poor in preference to that of Mahomed who insisted that such reservation should be express. Ameer Ali, J.

(pages 172, 173) favoured the rule of Abu Yusuf which, he pointed out, was

in accordance with the express practice and authority of Mussalman Judges and lawyers for ages.

The Bombay High Court had, however, held in Nizamuddin Gulam v. Abdul Gafur valad Mainuddin ILR (1888) Bom. 264 that a grant in wakf to

one''s own family and descendants could not be supported where there was no express provision for the ultimate devolution of the property to any

unfailing religious or charitable object, and this decision had been affirmed by the Privy Council in (1892) L.R. 19 I.A. 170 (Privy Council) .

Subsequently, even an express ultimate trust for a permanent charitable object was, as we have seen, held to be ineffectual to validate a family

wakf where such trust was to take effect on the extinction of the wakif''s line of descendants and was thus remote and "" illusory."" ( (1894) ILR 22

619 (P.C.) (Privy Council) .)

All this case-law which made considerable inroad upon the Mahomedan law as declared by authoritative Mussalman law-books like Fatawah

Alamgiri which had accepted and followed the views of Abu Yusuf, has been superseded by the Act which now declares the rights of Muslims to

make settlements by way of wakf in favour of their families, children and descendants. The Act recognises by defining ""wakf"" as a dedication for

a religious, pious or charitable purpose"" (section 2) and including the maintenance and support of the wakif''s family, children and descendants

among the purposes for which a wakf can be created (section 3), what Ameer Ali, J., endeavoured unsuccessfully to establish in his dissenting

judgment, viz., that, in the eye of the Mahomedan law, provision for one''s own family and descendants is a pious and charitable purpose. The Act

did away with the doctrine of illusory wakf as applied to such settlements of property. It also dispensed with the necessity of making express

mention of a permanent object of benefaction as the ultimate destination of the dedicated property. The statute has thus fundamentally changed the

entire situation and outlook and brought the law in regard to the matters dealt with by it into conformity with the principles enunciated by Abu

Yusuf and accepted by later Mahomedan jurists. In applying a statute with such a history, the Court ought, in our opinion, to interpret its

provisions, as far as the language would allow, in harmony with those principles without reading into it restrictions which are not to be plainly found

there.

The learned Judges in Infan Ali v. Official Receiver, Agra ILR (1930) All. 748 say:

It appears to us that the Legislature having passed an Act relating to the subject it would not be fruitful of any good to start a research into the

previous state of the law as it existed before the Legislature added one more Act to the statute-book

and they refer to Ramanandi Kuar v. Kalavati Kuar (1927)54 M.L.J.281 : L.R. 55 IndAp 18 : ILR 7 Pat. 221 (P.C.) where their Lordships of the

Judicial Committee point out that the language of a statute should be examined to ascertain its proper meaning

uninfluenced by any consideration derived from the previous state of the law.

This is true where the language of the statute is plain and admits of no doubt. The proviso to Section 3 uses the expression "" expressly or impliedly

reserved."" What does "" impliedly "" mean ? Is there anything clear in the proviso or elsewhere in the Act to exclude any implication of ultimate gift

from the use of the word "" wakf "" by the settlor ? We are unable, as we have already stated, to discover any indication to that effect. The preamble

says that ""doubts"" had arisen as to the validity of family wakfs and that the Act was passed with a view to ""remove such doubts."" What were the

doubts and how were they removed ? It seems to us legitimate, in interpreting such a statute, to see what was the previous state of the law in order

to ascertain the true intention of the Legislature. "" If any doubt arises,"" said Tindal, C.J., in Sussex Peerage Case (1844) 11 Cl. & F. 85 : 8 E.R.

1034

from the terms employed by the Legislature, it has always been held a safe mean of collecting the intention, to call in aid the ground and cause of

making the statute and to have recourse to the preamble, which, according to Chief Justice Dyer (Slowel v. Lord Zouch, Plowden 359, 369) is a

key to open the minds of the makers of the Act, and the mischiefs which they intended to redress.

Applying that principle to the enactment in question it would seem that the framers of the Statute intended to uphold the validity of wakfs in favour

of one''s aulad (children or descendants) conformably to the views of Abu Yusuf which were favoured by preponderance of opinion among

Mahomedan lawyers. According to those views, a reversion for the poor or other charitable object of a permanent character on the extinction of

the dedicator''s family, may be inferred from the mere use of the term "" wakf"" which in itself is taken to imply ultimate benefaction for the poor or

for any other unfailing charitable purpose. (See Ameer Ali''s Mahomedan Law, 4th edition, Vol. I, pages 239, 240.) We accordingly hold that,

unless there are indications to the contrary, the use of the term wakf by a settlor may by itself be taken to imply an ultimate dedication for the poor

or for other unfailing charitable object and that there is nothing in the Act to exclude such implication.

The two Calcutta decisions to which also reference was made, viz., Masuda-khatun Bib''i v. Mahomed Ebrahim ILR (1931) Cal. 402 and

Tahiruddin Ahmad v. Masihuddin Ahmad ILR (1933) Cal. 901 approve the decision in Irfan Ali v. Official Receiver, Agra ILR (1930) All. 748

and, in the former case, the learned Judges give two additional reasons in support of that view:

If the Legislature intended that the term '' wakf itself should be taken to imply an ultimate trust for the poor or other unfailing charitable object,

nothing was easier for them than to have plainly said so.

But this reasoning is apt to evoke the comment that it was equally easy for the Legislature to exclade such implication by express enactment. Then

the learned Judges say that

to give effect to this contention would be to render the proviso nugatory, for there is hardly, if ever, a deed which does not describe itself as a deed

of wakf and yet is set up as not having created a wakf.

In the first place, cases where the Court had to determine whether a grant which was not described as a deed of wakf constituted a wakf are by

no means so uncommon as the learned Judges imagine. Ameer Ali, J., refers to a few such cases in his judgment (pages 150, 151), and more can

be found in the books. And, further, there is no question of the proviso being rendered nugatory in the view we are inclined to take, for, howsoever

the implication may arise, it would still be necessary, having regard to the previous state of the law, to have a positive enactment that an implied

ultimate dedication for an unfailing charitable object is sufficient to validate a family-wakf.

A concurrent and immediate gift for permanent charitable objects in a wakf created in favour of one''s own children and descendants has been

held to warrant the implication of an ultimate trust for those objects on the failure of the descendants. Sulaiman, C.J., delivering the judgment of the

Court in Mt. Ruqia Begam and Others Vs. L. Suraj Mal and Others, observed thus:

Where the wakif has indicated his intention that his object is to benefit his family, and also religious, pious or charitable purposes, it can be implied

that there is an ultimate reservation for such purposes, particularly so when he has provided that a part of the income should be applied to such

purposes during his own lifetime. If one object, namely, the maintenance of his descendants, fails, there is no reason why the other object should

also fail, and no reason whatsoever why the whole income should not be devoted to the remaining object as indicated.

These observations are apt to cover the present case and we entirely agree with them.

It is said that no such implication can arise in the present case because the scale of expenditure for the performance of the charities mentioned

in Schedule D has been fixed by the settlor himself and there is no reference to the poor in that schedule. It is true that the trustees are directed to

conduct the charities at a cost of Rs. 160, but we do not regard the direction as fixing a permanent scale of expenditure for their performance. The

provision in the deed that on the death of the settlor''s wife the income of the properties enjoyed by her should go to augment the charity-fund

shows that no fixed scale for all time and in all circumstances was intended. Reading the wakfnama as a whole we think that all that was intended

was that the wakif''s sons and their descendants should enjoy the surplus income of certain properties specified in that behalf after devoting Rs.

160 per annum to the charity. It should be noted that one of the objects mentioned in schedule D, viz., feeding the poor on the birthday of the

Prophet, is capable of indefinite expansion and might well absorb the entire usufruct of the properties comprised in the deed. Though the word

poor "" is not used in the provision for distribution of food, there can be little doubt, having regard to the context, that the settlor intended that the

poor should be the object of his benefaction.

It was next argued that the provision for the devolution of the trusteeship among the wakif''s children and their descendants for ever, coupled

with the fact that, while providing for a reversion of the properties to the charities on the death of his wife, the settlor made no such provision to

take effect on the extinction of his descendants, shows that he never thought of that contingency at all, and that, therefore, no intention of ultimately

benefiting the poor or other charitable object could be attributed to him. We see no force in this argument. The circumstance that the settlor did not

think of the possibility of the failure of his descendants has, no doubt, been referred to in some cases as tending to negative the implication of any

ultimate trust (cf. Mt. Ruqia Begam and Others Vs. L. Suraj Mal and Others, but we think it only explains why he made no express provision for

it. On a question of implied intention the Court has often to find not what the person concerned actually intended, but what he may be justly

presumed to have intended in regard to matters about which he did not think at all. The principle is familiar enough in the law of contracts and has

been stated perhaps nowhere better than by Lord Watson in Dahl v. Nelson, Donkin & Co.(1881) 6 A.C. 38 :

There may be many possibilities within the contemplation of the contract of charterparty which Were not actually present to the minds of the parties

at the time of making it, and, when one or other of these possibilities becomes a fact, the meaning of the contract must be taken to be, not what the

parties did intend (for they had neither thought nor intention regarding it), but that which the parties, as fair and reasonable men, would presumably

have agreed upon if, having such possibility in view, they had made express provision as to their several rights and liabilities in the event of its

occurrence.

The principle is one of construction, and is, we apprehend, applicable to the construction of grants as well as of contracts. Applying that principle

to the wakfnama in question we have little doubt having regard to its terms and the surrounding circumstances, that if the wakif had thought of the

possibility of the extinction of his line of descendants and provided for the ultimate destination of the properties in that event, such provision would

presumably have been in favour of the charities named in schedule D.

It follows that the wakfnama satisfies the requirements of the proviso to Section 3 of the Mussalman Wakf Validating Act, 1913, and must be

upheld as valid.

The appeal is, therefore, allowed and the decree of the Court below will be modified as follows : the properties mentioned in schedules A to

A-3 of the plaint shall be excluded from the scope of Clause (1) directing partition and delivery of possession; the plaintiff shall, however, be

entitled to an account from defendants 1 to 3 of the profits of item (2) of schedule A and of the lands mentioned in schedule A-3 from 20th July,

1936. In other respects, the decree of the lower Court is confirmed. The costs of all the parties in this Court will come out of the estate.