MUHAMMAD KANI ROWTHER Vs. ABDUL RAHIMAN ROWTHER

JUDGEMENT

(1.) THIS appeal is by plaintiffs 1 and 5 in O. S. No. 18 of 1961 on the file of the Subordinate Judge of Palghat. The plaintiffs the first defendant and one Shahul Hameed, who died on 15-1-1951, are brothers. The suit was one for partition of the properties which stood in the name of deceased Shahul Hameed, on the allegation that they belonged to all the brothers in equal shares. The second defendant is the widow of Hameed. On 19-12-1959 Shahul Hameed executed a deed of settlement, Ext. B-1, settling the said properties for charity. The plaintiffs contended that Ext. B-1was vitiated by undue influence and fraud, and that at any rate it did not create a valid wakf. The suit was contested by defendants 1 and 2. The second defendant withdrew her contention subsequently and supported the plaintiffs. It is not therefore, necessary to refer to her contention. The first defendant contended that the properties belonged solely to deceased Shahul Hameed, and that he executed Ext. B-1with his free consent, that it created a valid wakf, and that the plaintiffs were not entitled to partition of the plaint properties. Both the lower courts found that the properties belonged wholly to Shahul Hameed, and that Ext. B-1 was not vitiated by undue influence or fraud. But the trial court held that Ext. B-1 did not create a valid wakf under Muhammadan Law; and accordingly it passed a preliminary decree for partition. The lower appellate court disagreed with the above view, and dismissed the suit. Plaintiffs 1 and 5 have, therefore, filed this Second Appeal.

(2.) THE learned counsel for the appellant contended that ext. B-1 did not create a valid wakf for the reasons: (i) THEre is no dedication of the properties for charitable purpose, and (ii) THE objects of the settlement are vague and incapable of enforcement. In order to deal with the above contentions, it is necessary to refer to the provisions of the document. Ext. B-1is called a deed of settlement; and it has got a schedule consisting four items of immovable properties. THEse are the properties in schedule A of the plaint. Ext. B-1states that the executant has no children, and his wife is staying with him. THE next clause in the document is the most important one; I shall extract the same. This means that the above said properties are settled and set apart by this document for carrying out the things mentioned thereunder. THEn it contains the following provisions: 1 A madrasa (Muslim religious school) should be conducted in the first item of the properties for imparting religious education to the muslim children. For this purpose, a molla (religious teacher) should be appointed, and the children should be properly taught. THE salary of the teacher and other expenses for conducting the school should be met out of the rent income of item No. 4 of the properties, after paying the taxes and the repairing expenses of the said property. 2. THE balance income may be taken by the manager for the time being, as remuneration for his work. 3 THE executant would carry on the management of the properties and conduct the school and meet all the expenses therefor, till his death. 4. After his death, his younger brother, Abdul Rahiman shall take possession of the properties, manage them and conduct the aforementioned things. After the death of Abdul Rahiman, his eldest son would be the manager; and thereafter the eldest son of the manager for the time being would succeed the manager on his death. 5. THE executant's widow would be entitled to stay in his residential house (item No. 1) and she should be paid during her life a sum of rs. 35/- per month for her maintenance. 6. THE managers, who succeed the executant, would not have any right to charge the properties for any debt or otherwise deal with them, or default the performance of the matters mentioned therein.

(3.) THE learned counsel for the appellants referred me to a decision of the Privy Council in Mujib-un-Nissa v. Abdul Rahim and another ilr. 23 Allahabad 233 in support of his contention. In that case, the document which described itself as a deed of family endowment, declared that the income and profits of the property, after defraying the necessary expenses according to the provisions in the deed, should be applied to charitable purposes. THE privy Council held that the above provision did not create a charitable trust; and the reason for its decision was stated as follows: "on the terms of the deed itself, therefore, their lordships held that the property is not is substance dedicated to charitable purposes, but on the contrary is dedicated substantially to the maintenance and aggrandisement of the family estates for family purposes. THE deed, therefore, could not be supported as constituting a wakf. " This decision has been referred to by the Privy Council in Ramanandan Chettiar v, Vava Levvai Marakayar ILR. 40 Madras 116 and it does not help the contention of the appellant's learned counsel. He also referred me to a decision of the Allahabad High Court in Md. Shafiq Ahmed v. Md. Mujtaba air. 1928 Allahabad 660 (2 ). That was a case of a private trust; and the decision cannot, therefore, support the appellant's counsel. In the result, I hold that Ext. B-1creates a valid wakf under the Muhammadan Law, and that the plaintiffs are not entitled for partition of the plaint properties. This Second Appeal, therefore, fails and is accordingly dismissed. In the circumstances of the case, the parties will bear the costs of this appeal.