Srinivasa Aiyanger, J.
1. This is a suit by the daughter of a deceased Mahomedan for the administration of his estate and for a partition of the properties pertaining to his estate amongst the sharers and heirs under the Mahomedan Law.
2. Incidentally a number of difficult and doubtful questions are raised with regard to certain instruments executed by the deceased. For the present purpose the documents which are sought to be set aside as invalid and not binding on the heirs and sharers of the deceased are a registered wakfnama dated the 1st January 1921, and a number of deeds of settlement of property in trust for charities. It would be convenient to deal with the latter at once.
3. The deeds are admitted by the plaintiff but it has been argued that, though these deeds were duly executed and registered, they were not acted upon by the deceased and, therefore, they ought not to be recognized or given effect to. Such a plea I construe merely as meaning that these were sham deeds which the executant did not intend to have any legal effect whatsoever. The first thing in such cases would be to see whether there was any sufficient motive on the part of the deceased to take all the trouble and put himself to all the expenses of bringing such documents into existence, if they were indeed intended to be merely shams. The plaintiff sought to make out her plea that these were sham deeds by proving that even subsequent to their execution they were not acted upon by the deceased himself and that he continued even thereafter to regard and deal with the properties as if they were his own. This, however, has not been made out. On the other hand, it has been sufficiently established by the admission made by the first and only witness called for the plaintiff in this case that far from these deeds not being given effect to they were acted upon, that the deceased opened a separate account in respect of all the houses set apart by him for charity under these deeds of settlement and that in that account were credited from time to time the rents that were collected and that debits were also made of various sums in that account expended by the deceased in respect of various charities.
4. If there is a valid dedication in law of properties for the purpose of certain charities, there is no further question unless, of course, it is satisfactorily established, as was sought to be done by the plaintiff that the deeds were shams and never intended to be acted upon. That plea failing, there is no legal obstacle whatever to these documents being given their legal effect. It is abundantly established that the deceased himself recognized all these houses as houses set apart for and dedicated to charity and in the face of such evidence it is impossible to come to any conclusion other than that he not only executed these deeds but gave effect to them for the rest of his life. One argument that was relied upon very strongly by the learned Counsel for the plaintiff may here be referred to and disposed of. That is this. He said that the rentals accruing from these properties set apart for charity were very large and that from the accounts it appeared that only small sums of money at a time were expended by him for the purpose of the charity.
5. I have not gone into the accounts and been able to realise the proportion of the actual moneys expended by him for the charity to the total income. But assuming for a moment that that was so and assuming also that he misappropriated to himself the balance, that would go to show not that there was no completed dedication of these properties to charity but that he, as Mutavali or trustee, committed breach of trust and misappropriated trust moneys. I must, therefore, hold that so far at least as the properties set out in Schedule B are concerned, namely, the properties set apart for charities, they were properties legally so set apart and the dedication was valid and binding on all the heirs and legal representatives of the deceased Pylvan Sahib. Those properties, therefore, are not available for partition.
6. But the more difficult question really is with regard to the properties set out in Schedule A to the plaint. These are the properties, the subject matter of the waqf-deed of the 1st January 1921, already referred to by me. It is a very curious document. I am satisfied that the deceased Pylvan Sahib must have come to execute it on the suggestion and, at the instigation of a character at one time very familiar in these Courts, a person called Gulam Dastagir Sahib. I have no doubt he suggested to the deceased the possibility of tying up a considerable portion of the property acquired by him to the members of the family in such a manner as to make the same inalienable for generations so that the members of his family may continue to enjoy the properties and live upon the income thereof without the properties being available to them for being wasted or alienated or available to the creditors for being proceeded against. With regard to this document, the case for the plaintiff was that there was not and could not have been any valid wakf created in respect of the properties.
7. The first ground on which this document was sought to be impeached was that it was not given effect to by the deceased himself, a plea similar to the one with respect to the deeds of settlement already referred to by me. If what is called 'being given effect to by the deceased' was according to any provision of law, Mahomedan or English, a requisite condition precedent to the validity of the wakf, I should certainly feel constrained to consider the argument advanced on behalf of the plaintiff. But, in my judgment, it can be looked at only in one of two ways. If it was a valid wakf, no delivery of possession is necessary and 'nothing further is required to constitute a valid wakf but the declaration and, so far as the declaration is concerned, it is contained in the document. If it is not a wakf, then other questions might arise. It may be either a trust or a gift in favour of the donees. It seems to me that, having regard to the language of the document itself and the other provisions in the document, it cannot be regarded as a deed of direct gift. It is in the nature of a gift in trust. Even if it be a gift in the nature of a trust, possession would under the Mahomedan Law be necessary to be given, if not to the donee, to the trustee and it has been argued on behalf of the plaintiff that in this case no possession was given to the donees or has been shown to have been given to any persons on their behalf.
8. But it is clear that under the Mahomedan Law in order to complete a gift by way of trust it is sufficient to give possession to the trustee. No doubt', if the maker of the trust had appointed third parties as trustees and failed and neglected to deliver possession of the properties to them, there might be considerable force in the argument of the plaintiff. But in this case the maker of the trust appointed himself in the first instance as the trustee and he was in possession. In the case of Mohammad Sulfalla, Sahib v. Vajihuddin Sahib [1915] 2 L.W. 1018, Sadasiva Aiyar and Napier, JJ. held and distinctly laid down that a Mahomedan trustee could by making himself a trustee or agent of the donee or as his guardian, if the donee was a minor, or expressing an intention to treat his own possession as the donee's unequivocally transfer legally effectual possession to the donee while himself remaining in actual possessions I take it that the general principle of the law relating to delivery of poasession in Mahometan Law is that, so far as the donor is concerned, he mast be shown to have completed all that he was bound to do for the purpose of giving effect to the arrangement made by him. That is to say, if his intention was that the donees should get the property, he must deliver over possession to them. If his intention was that third parties should hold the property for the benefit of the donees, then delivery must be effected to such third parties. But in cases where it is clear that what was intended was that he should himself hold possession on behalf of the donees it seems to me that it should be sufficient, if he declared the trust thereby treating his own possession as will be presumed in law into possession by himself in his capacity as trustee.
9. In this connexion I might refer to the provisions of Section 6 of the Indian Trusts Act. It applies to Mahomedans also and it provides that, subject to the provisions of Section 5, a trust is created when the author of the trust indicates with a reasonable certainty by any words or acts an intention on his part to create thereby a trust, the purpose of the trust, the beneficiary and the trust property and (unless the trust is declared toy will or the author of the trust is himself to be the trustee) transfers the trust property to the trustee. The transfer of the trust property to the trustee is under the provisions of this section required only when the author of the trust has not constituted himself to be the trustee. But the case before me is a case in which the author has constituted himself as the sole trustee. Therefore, no question arises of failure to deliver over possession of the property to any person who was at the time entitled to such possession under the terms of the instrument. Having come to the conclusion that there was a valid trust created in favour of the various donees and there being no other objection to the validity of such a trust, I do not consider it necessary to discuss the question whether, if it was deemed to be a direct gift, possession was necessary to be given to the various donees.
10. The question before me really resolves itself into this whether after the passing of Act VI of 1913, the Mussalman Wakf Validating Act, such a document as Ex. A in this case would be held to have validly created a wakf for the purposes and objects therein set forth. On behalf of some of the defendants Mr. Venkatramana Rao contended that it could and did. He has, however, frankly recognized that the chief obstacle in the way of his argument was the proviso in Section 3 of the Act and he has tried his best to get rid of this proviso in a number of ways.
11. His first argument was that this proviso was a proviso not to the whole of the section, that is, all that precedes the proviso in the section but only to Clause (b). I have seen all the printed copies of this Act available and in none of them did I see this proviso reproduced in such a manner as to seem that it is a proviso only to Clause (b) of the section; but I believe that that the manner in which the printer chooses to print cannot be made the basis of any proper construction. If Clause (b) of the section was a complete sentence in itself, I agree, that there would be considerable force in the contention of Mr. Venkataramana Rao that a proviso must be taken in the first instance as a proviso only to the last completed clause in the section. The complete sentence in this section covers not only the first part of the section but both Clauses (a) and (b). The use of the plural 'in such cases' in the proviso seems also, to my mind, to indicate that the Legislature intended the proviso to refer to and comprehend both Clauses (a) and (b). Further, if it was intended that the proviso should have reference only to Clause (b), I should have expected that it would have been indicated by the Legislature in some suitable manner or some apt words would have been used to indicate such intention on the part of the Legislature. Taking the context into consideration, I cannot help thinking that the proviso was intended to cover both Clauses (a) and (b),
12. Then if the proviso should be taken to refer to both the clauses the next argument advanced by Mr. Venkataramana Rao was that the mere use of the expression 'wakf' in the deed before me was sufficient to constitute a, bequest for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character. His argument is that the mere use of the word 'wakf' without more in the document constitutes such a reservation of the ultimate benefit for the purpose indicated in the proviso as to take the document out of the proviso. It is necessary for this purpose to refer to the definition of 'wakf' contained in the Act. I have in construing this enactment nothing whatever to do with the meaning or significance of 'wakf 'as it was understood by Mahomedan jurists. The word is used in an enactment of the Legislature and is defined by it. The definition is contained in Section 2, Clause (1) and is as follows :'Wakf' means
the permanent dedication by a parson professing the Mussalman faith of any property for any purpose recognised by the Mussalman law as religious, pious or charitable.
13. But it is curious and significant that the words which we find in the proviso, namely, 'religious pious, or charitable purpose of a permanent character' are not reproduced in the definition of 'wakf' Having regard, therefore, to this difference between the definition of a 'wakf' in Section 2 and the introduction of the words 'of a permanent character' in the proviso, I cannot help thinking that the Legislature intended to draw a clear distinction between the two Further, if it was the intention of the Legislature that by the use of the word 'wakf' a dedication to any such purpose may be inferred, then it seems to me that it is absolutely unnecessary to introduce such a proviso at all. The proviso in such a a case would be redundant. If it be said that the proviso was necessary for the purpose of making it clear that it is only with respect to a class or sect of Mahomedans amongst whom bequests for the maintenance of their family and children would be considered religious or pious, then the answer will be that the first part of Section 3 already contains such a provision because it is required by that part of the section that a 'wakf' should in all other respects be in accordance with the provisions of the Mussalman Law.
14. I shall hereafter advert to another argument of the learned vakil based on the construction of the proviso itself but I may here state for the purpose of the present argument that the wording of the proviso would seem clearly to indicate that the benefits contemplated by Clauses (a) and (b) of Section 3, are benefits of a different kind from the 'ultimate benefit' contemplated by the proviso. The contradistinction and contrast between the two kinds of benefit are brought out clearly by the use of the expression 'ultimate benefit' following so closely upon Clauses (a) and (b). This, to my mind, also clearly indicates that it could not have been the intention of the Legislature that by the use merely of the word 'wakf' it could be contended that a bequest for the poor or any other purpose such as is indicated in the proviso could be inferred.
15. The third contention of the learned vakil was that on a proper construction of the proviso a benefit created for the maintenance and support of the family, children or descendants was such a purpose as is indicated in the proviso. This contention requires careful examination. I have already referred to the words 'ultimate benefit.' The word 'ultimate' clearly refers to the benefits already referred to in the section, the immediate and the mediate benefits, the immediate benefit to the wakf referred to in Clause (b) and the mediate benefit referred to in Clause (a). The word 'ultimate,' therefore, is used in contradistinction to both these benefits and it is, to my mind, a clear legislative indication that the benefit which the proviso requires is of a diffekind and nature to the benefits referred to in Clauses (a) and (b). In the face, therefore, of the expression 'ultimate benefit' as contradistinguished from the benefit to oneself or family, children and descendants, I cannot help concluding that the benefits to the poor or other purpose must be such purposes as are, apart from any usages of any sects of Mussalmans, generally in Mahomedan law recognized as charitable purposes.
16. The expression 'in such cases' in the proviso refers clearly to Clauses (a) and (b). If the proviso is really meant to refer to the maintenance of the family, children and descendants it would be meaningless to refer to 'ultimate benefit' in such cases. The expression therefore, 'in such cases' would seem also clearly to indicate that, though the immediate and mediate benefits as in Clauses (a) and (b) may be in favour of persons or classes, indicated in those clauses still the proviso requires that the ultimate benefit should be for the persons or objects thereafter indicated. Again, the further expression 'reserved' in ' expressly or impliedly reserved' would also show that the requirement in the proviso is different from the requirements already set out. The reservation is required to be either express or implied -- implied it may be from what is expressed or from the circumstances. Anyhow, the reservation has got to be there. If on a proper construction of the proviso it could be held that a bequest merely for the maintenance of one's family and descendants would be within it, then it was unnecessary to use the words 'for the poor or for any other purpose' etc. It would have been sufficient for the legislature to say 'for any purpose recognized by the Mussalman Law as religious' etc.
17. When the Legislature advisedly uses the words 'for the poor or any other purpose' I cannot but construe the expression ejusdem generis with the poor and, therefore, to refer only to those objects of charity such as are generally in all systems of Mahomedan Law recognized. Again, it is not sufficient that the objects should be recognized by the Mussalman Law as religious, pious or charitable, bat' they are also required to be of a permanent character. I am satisfied in my mind that it is of the very essence of the Mahomedan Law relating to wakfs that it recognizes only bequests for public charities such as for the poor, for religious purposes and so on as being permanent and bequests for other purposes as being not permanent. When, therefore, in the proviso we have those words 'of a permanent character' they clearly having regard to the language with which we are familiar, must be regarded as indicating only those general purposes which are called religious, pious or charitable under all systems of Mahomedan Law.
18. It cannot possibly be contended that a gift for the maintenance of one's children family or descendants could by any means be regarded as permanent. All religions recognize the mortality of human beings and also contemplate the line of succession coming to an end at some time or another. I cannot, therefore, regard that the Mahomedan Law, of all systems of religion could have regarded a bequest in favour of family, children or descendants as of a permanent character.
19. For these reasons I have come to the conclusion that by this Act the Legislature clearly provided that even after the passing of the enactment there ought to be a provision in the wakf for a bequest to the poor or other purpose generally recognised as religious, pious or charitable and of a permanent character. In the absence of such a bequest there could be no valid wakf. It is true that before the passing of this Act their Lordships of the Judicial Committee and several Courts in this country held that for the valid creation of a wakf it was not merely sufficient to have some bequests in favour of charity, but it was held repeatedly that such bequests should not be merely illusory in their character a sort of a makeshift or device for the purpose of tying, up property through generations of successors but ought to be also substantial.
20. After these decisions were pronounce apparently there was a clamour amongst Mahomedans supported by great Mahomedan jurists, and for reasons of its own the Legislature thought it fit to pass this enactment and the question I have got to decide is whether in passing this enactment it has embodied as law the position which was held by those jurists who held the extreme view that it was competent to a Mahomedan to create a wakf purely and solely for the maintenance of the family or whether it merely did away with the effects of the decisions of Courts with regard to the illusory or unsubstantial character of the bequests for charity. I am inclined to take the latter view. I am satisfied in my mind that the true intention and object of the, Legislature in passing this enactment was merely to do away with the effects of the decisions which said that the bequests for charity should not be illusory or unsubstantial. In Section 3 this enactment provides that it may be what is called illusory. In Section 4 it enacts that it need not be substantial. It may be postponed probably for ever but still whether it was illusory or unsubstantial, the Act requires that there must be some provision for some bequests in favour of the purpose generally considered religious, pious or charitable.
21. The last branch of the argument by Mr. Venkatarama Rao was this. He referred me to Section 5 of the Act and his argument if accepted, would result in doing away with the entire enactment. Having in the four previous sections enacted what the Legislature considered to be the proper law with regard to the subject, it is argued by Mr. Venkataramana Rao, in the 5th section it went rubbing out the slate again. But I am glad to think that on a consideration of the argument I do no not feel compelled to agree with that contention. It is significant that in Section 5 the words used are 'shall affect any custom or usage among Mussalmans.' In all the previous sections the expression used is 'the Mussalmin Law,' 'the tenets and doctrines of Mussalman Law,' 'the provisions of Mussalman law,' and so on. The word used is always 'law' and not 'custom' or 'usage.' The expression, therefore, custom or usage' in Section 5 should not be construed as meaning the same thing as law, because when the enactment itself draws a distinction between the two, it would be wrong to construe them as being identical. It seems to me that Section 5 was enacted, as is usual with the Indian Legislature which is always apprehensive of interfering with the unknown customs and usages of the Hindu or the Mahomedan Law almost to the point of trepidation, merely providing a safeguard that the enactment should not be construed as interfering with any local or sectional usage or custom, if such should be found to exist. Anyhow, as the section could not be reasonably construed to refer to the law relating to wakfs, I cannot agree with the contention that the effect of Section 5 is to do away with the proviso in Section 3.
22. In the result, I have come to the conclusion that even after the passing of the Wakf Validating Act it is necessary that every instrument before it can validly create a wakf should contain a provision for some religious, pious or charitable purpose of a permanent character generally so recognized by all systems of Mahomedan law. There is admittedly no such provision in the instrument before me. I must therefore, hold that Ex. A does not create a valid wakf for the purposes therein set forth.
23. I have already given my reasons for holding that it does create a valid trust in favour of the beneficiaries named in the various schedules, the deceased Pylvan Sahib constituting himself trustee in respect of all those trusts. Some question was raised in the course of the discussion of the case as to whether there was such valid acceptance of the trust by the various parties so as to make the trust complete and binding on all the parties. It is only the plaintiff that argued the point and so far as the plaintiff is concerned, the thing is made perfectly clear. Ex. III is a notice that was sent by Mr. P.M.S. Mudaliar as vakil on her behalf. That notice is admitted by her husband as her first witness. That contains statements which are only consistent with the plaintiff having accepted the trust in her favour contained in the so called wakf deed. On behalf of Defendants 2 and 3, I have no materials before me on which I can hold whether they have accepted the trust or not. The learned vakils appearing for them tell me that they have to consult their respective clients and that then alone they will be able to tell the Court whether their position in the case would be on the footing of their having accepted their respective trusts or not. If they do not accept the trust, then it would follow that there not having been a completed and accepted trust the property will lapse to the general estate of the deceased and will be divisible amongst all the heirs and legal representatives of Pylvan Sahib.
24. Another question was also raised in the course of the discussion of the case and that was the restraints on alienation contained in the deed of wakf and it may also be taken that restraints are being necessarily imposed on alienation by the deed being called a wakf. If there is a bequest to a person and restraints are imposed on his enjoyment of the property, which are not consistent with the bequest already made, it is undoubted law that the restraints would be invalid and the bequest will take effect, as though the instrument contained no such restraints. In this case the restraints were imposed by the deed merely because the ambition of the deceased wakf was to create a wakf solely for his family and descendants. That having failed, it cannot possibly be held that these restraints will have any legal effect. From this it follows that the various beneficiaries indicated in the schedules to Ex. A and their legal representatives in the case of such of them as are dead will be the 'beneficiaries in respect of the various trusts contained in Ex. A. I have already decided that in the case of the properties settled for charity in Schedule B, they have been validly dedicated. To the properties in Schedule B, we have to add Item No. 4 of Schedule C with regard to which also it is now clearly established by the admissions made by the first witness for the plaintiff and also on the basis of the recitals in the Will that that property had been validly dedicated for performing the annual ceremony of the Prophet during Bara wafat as set out in the pleadings.
25. Defendants 12 and 13 are merely debtors to the estate of the deceased Pylvan Sahib. An issue has been raised whether they are necessary parties to the suit. I asked the learned Counsel for the plaintiff on what ground he justified making these debtors to the estate in an administration action like this parties to the suit. He has not been able to satisfy me as to the grounds on' which he has made them parties. If moneys are due to the estate from them and there are disputes amongst the heirs and sharers of the estate with regard to the division of the moneys that is of no concern to the debtors themselves. They have executed promissory notes in respect of the moneys due and the holders for the time being will be entitled to recover the moneys due thereon whatever shares therein the various parties might be entitled to and whatever might be the ultimate disposal of the moneys. On these grounds I hold that Defendants 12 and 13 are unnecessary parties and have been wrongly added. They will be dismissed from the suit with their costs up to date, payable by the plaintiff.
26. On these findings the case will stand adjourned till Friday next. On the 2nd and 3rd defendants intimating to the Court their acceptance or otherwise of the trust contained in Ex. A, further directions will be given and the case referred to the Official Referee for carrying out the partition amongst the various heirs and sharers. Costs reserved.