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First Appeal No. 127 of 1958, decided on 7th December 1961.

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--‑Wakf‑alal‑aulad‑Can be created Ar maintenance and support wholly or partially of family, children or descendants of wakif without allotment of any sum out of income for charitable purpose during their life‑Ultimate benefit must be reserved for purpose recognized by Muslim Law though deferred till extinction of family's children and descendants of wakif‑Mere provision for sum for public charities without specifying property thereto does not validate wakf to that extent‑"Family"‑Term comprehensive, may include persons not related to wakif or distant kindred who cannot be called descendants‑"Heirs of children" to inherit wakif's property, (provision in wakfnama)‑Wakfnama, held, invalid as heirs may include not members of family nor children nor des cendants‑Mussalman Wakf Validating Act (VI of 1913).

Upendra Kumar Roy and Abdus Salam for Appellant.

M. H. Khondkar for A. B. S. Hyder for Respondents.

In this appeal a deed of wakf is in question. It appears that one Syed Abul Jabbar executed a deed of wakf which has been marked as Exh. A, on the 21st October 1949 in respect of the property in dispute and thereafter he died on the 3rd October 1961 (sic). By this document the wakf has been characterized as Wakf‑alal‑awlad and various provisions have been made for management of the wakf properties and distribution of the assets.

2. The plaintiffs, other than plaintiff No. 1 who is the widow, and the defendants 4 to 9 are the, daughters and the defendants 1 to 3 are the sons of the wakf. In the suit the plaintiffs have prayed for declaration that the wakf is void ab initio. This prayer for a declaration is opposed by the defendant No. 2 alone who is the second son by a pre deceased wife of the wakif and is the present Mutwalli under the deed after the death of the wakif, asserting that the Wakf nama is valid.

3, The trial Court has decreed the suit holding that though the wakf deed was executed by the wakif in respect of the whole properties, yet it is not valid as the ultimate gift to charity as provided by the wakf deed is more remote and illusory than what has been allowed by the provisions of the Wakf Validating Act and that Rs. 242 only, allocated for charity, is illusory etc. As we feel that there is some doubt about what view the learned Subordinate Judge has taken on the question of law involved in this case, we propose to express ourselves on the questions of law involved in this case, at some length.

4. At one time wakf was only valid when dedication was only for public charity; in other words private wakf was not valid. This view was not fully upheld by the subsequent decisions and it was held that subject to certain limitations, a private wakf was valid but the limitations were very strict. In the case of Shaik Mahmed Ahsanullah Chowdhury v. Amarchand Kundu and others (17 I A 28), their Lordships of the Privy Council held that Wakf alal‑awlad was valid if there was " a substantial dedication of the property to charitable uses at some period of time or other. " This decision of the Judicial Committee was interpreted by different High Courts in different ways. In the case of Abul Fata Mahamed Ishak and others v. Rossomoy Dhur Chowdhury and others (22 I A 76), their Lordships of the Privy Council held that if the primary object of the wakf was the aggrandizement of the family, and the gift to charity was illusory whether from its small amount or from its uncertainty and remoteness, the wakf for the benefit of the family was invalid and no effect could be given to it. In Abul Fata Mahomed's case the income of the wakf property was to be applied in the first instance for the benefit of the settlors's descendants from generation to generation, and the charity was not to come into operation until after the extinc tion of the whole line of the settlor's descendants. On these facts their Lordships of the Privy Council held further that the sole object of the settlor was to create a family settlement in perpetuity and hence the provision, of the settlor's family was invalid.

5. This decision of the Privy Council caused widespread dissatisfaction in the Muslim community in India. A representa tion was made to the Government of India with the result that the Mussalman Wakf Validating Act (Act VI of 1913) was passed in 1913. It came into force on and from the 7th March 1913. The relevant portion of the Wakf Act is as follows:

"1. (1) This Act may be called the Mussalman Wakf Validating Act, 1913.

2. It extends to the whole of India except part B States.

2. In this Act unless there is anything repugnant in the subject or context.

(1) Wakf' means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable.

(2) Hanafi Mussalman means a follower of the Mussalman faith who conforms to the tenets and doctrines of the Hanafi School of Mussalman law.

(3) It shall be lawful for any person professing the Mussal man 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 and descendants, and

(b) where the person creating a wakf is a Hanafi Mussalman, also for his own maintenance and support during his life time 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 recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character.

(4) 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.

(5) Nothing in this Act shall affect any custom or usage whether local or prevalent among Mussalmans of any particular class or sect."

6. This Act of 1913 was held not retrospective which necessitated the passing of an Act in 1930 called the Mussalman Wakf Validating Act, 1930 (XXXII of 1930). The effect is that the Wakf Act of 1913 applies also from and after the 25th July 1930, to wakfs created before the 7th March 1913.

7. Now the question, before us, for determination is whether Wakf‑alal‑awlad can be held invalid for remoteness, illusion etc., even after the passing of the Wakf Validating Act of 1913.

8. There is no doubt that under the pure Muhammadan Law a wakf exclusively for the benefit of the settlor's family and descendants is valid which may create successive life interest in favour of unborn persons. Now we are to see how far these provisions of the pure Muhammadan Law have been affected by the Wakf Validating Act of 1913.

9. Subsection(1) of section 2 of the Wakf Validating Act pro vides that a Mussalman can create a wakf " of any property for any purpose recognized by the Mussalman Law as religious, pious or charitable ". Section 3 of the Act provides that any person professing the Mussalman faith is entitled to create a wakf which in all other respects is in accordance with the provisions of the Mussalman Law for the following among other purposes :‑

" (a) for the maintenance and support wholly or partially of his family, children and descendants ; provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussal man law as a religious, pious or charitable purpose of a permanent character ". Section 4 of the Act provides that 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. Section 5 provides that nothing: in the Act shall affect any custom or usage whether local of prevalent among Mussalman of any particular clear, or sect."

10. From the aforesaid provisions it is clear that a Wakf alal‑awlad can be created for the maintenance and support wholly or partially of the family, children or descendants of the wakif. The only bar is that ultimate benefit in such cases must be expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as religious, pious or charitable. This Act does not provide that in order to create a valid Wakf‑alai‑awlad it is necessary to allot any sum, small or big out of the income of the property for any charitable purpose during the lifetime of the wakif, his family, children or descen dants. It is enough that an ultimate benefit is reserved for the poor on the extinction of the descendants of the wakif. It is the option of the wakif to make any allocation of the income for the public charities or (the wakif) himself to appropriate the whole of the income during his lifetime and or to provide for enjoy ment of the wakf property's whole income by his family, children or descendants. If we are to hold otherwise, that is to hold that in order to create a valid Wakf‑alal‑awlad a certain small or substantial portion of the income of the wakf property must be allocated towards the charities recognized by the Mussalman law as religious, pious etc., during the lifetime of the wakif, his family, children or descendants in that case we are to put in some words in this Act which is not allowed by law as the Court is not competent to legislate or put some words which are not in the Act itself. Hence we are of the opinion that if there is an ultimate benefit to charity as recognized by Mussal man law as religious and pious and that charity is deferred till the extinction of the family's children and the descendants of the wakif, the Wakf‑alal‑awlad will not be bad or invalid merely because there is no allocation for charities at the time of the creation of or no vesting of the income in charities along with the creation of a wakf or for remoteness caused by the existence of the descendants of the wakif.

11. In the present case it has been held by the learned Subordinate Judge that the wakf has been created for persons other than the family, children or descendants of the wakif and as such the Wakf‑alal‑awlad in question is invalid. From the Wakfnama Exh. A dated the 21st October 1949. it appears from the preamble that apparently a valid wakf was created but there is a provision that the wakif would enjoy the whole of the surplus of the income after deducting the collection charges etc., and after his death his three sons Syed Mohammad Abdulla, Syed Abul Fazl (defendant No. 2) and Syed Abdul Hye will get 3/5th from generation to generation irrespective of male or female according to the law of inheritance, and his 12 daughters of whom some are plaintiffs and some are defendants and after them their heirs will get 1/5 of the surplus income in equal shares, A sum of Rs. 242 has been reserved for certain charitable purposes.

12. The learned Subordinate Judge has held that the above provisions go to show that an allowance has been reserved for some persons other than the wakif's family, children or descen dants inasmuch as the heirs of these descendants of the wakif have been made also the beneficiaries under the wakf, and that the word " heirs " include not only the family, children or descendants but also some other persons who may not be members of the family or children or descendants of the wakif.

13. This view of the learned Subordinate Judge seems to be correct. The wife of the wakif is certainly a member of the family but her heirs may or may not be the descendants of the wakif. As for example, the wakif dies leaving behind a widow and other children. After the death of the wakif, the wife inherits but after the wife her heirs may not be only the children by the wakif but also some other persons who maybe her parents. Then again if there is no child by the wife, then in that case her inheritance certainly will go according to the provisions of the Mahomedan law to some other persons who cannot be called either the members of the family, or the children descendants of the wakif. So the provision in the wakfnama that the heirs of children will inherit the properties left by the wakif has provided for some persons who cannot at all be the members of the wakif's family or his children or descendants. This pro vision is not valid in law. Hence we find that the wakfnama in question is not valid.

14. It may be contended that the persons who may not be the children or descendants of the wakif might be members of the family. The dictionary meaning of the word " family " is " the household, or all those who live in one house under one head including parents, children; servants; the descendants of a common progenitor " Hence we find that the word " family " is more comprehensive than a genus. The word " family " also means all descendants of common ancestor, house and lineage. So in family there might be persons not related to the wakif, persons who are distant kindred who cannot be called descendants. So if the provision is made for the maintenance of the family which includes persons other than the children and descendants of the wakif, it will be valid; but in the present case the heirs of the descendants of the wakif have been made beneficiaries who may be not at all the descendants of the wakif or members of his family. As for example, a daughter of the wakif is really a descendant of the wakif. Now let us see whether all the daughter's heirs including her husband can also be called descendants of the wakif. After the death of the daughter, her hus band is certainly under the Muhammadan Law entitled to inherit and in certain cases when there is no child to this inheritance of 8 as share by the husband will never come to the descendants of the wakif but it will go down to the heirs of the daughter's husband who cannot be called by any stretch of imagination descendants of the wakif.

15. There remains another point. Though it has not been contended on behalf of the appellant that as there is a provision in the wakfnama allotting a sum of Rs. 242 for charitable pur pose the wakf, though not valid in full, is valid to that extent, we are to see whether wakf is valid to that extent. In our opinion, mere provision of allotment of a certain portion of the income to public charities in a Wakf‑alai‑awlad may not make the wakf valid in all cases. In the present case, though there has been a provision for the public charity, no property has been specified out of whose income the charities will be met. So though there is a provision for public charity, we do not find that the wakf is valid to that extent. Hence we find that the wakf is not valid. No other grounds have been pressed by the learned Advocate for the appellant.

In the result, the appeal is dismissed without any order as to costs and the judgment and decree of the trial Court are affirmed.

K. B./A. H.

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