MUTHUKANA ANA RAMANADHAN CHETTIAR Vs. VADA LEVVAI MARAKAYAR

JUDGEMENT

(1.) The question which arises in this second appeal is whether the disposition of property contained in a document executed by two Mahomedans of the Hanafi sect, Ahmed Nayna Marakayar and Hussain Kuthu Sahib, is valid according to Mahomedan Law. The deed Exhibit I begins with a recital that the property consisting of two villages of the total value of Rs. 20,000 is given for the purpose of charity and then states that out of the gross yields the melvaram, repairs, salaries for servants, maganam, and other important expenses are to be defrayed and the balance of the income is to be divided in 3 shares. From 2 shares out of the 3 shares of the income the Dharmakartas or trustees appointed by the deed and their successors are to take Rs. 10 per mensem as salary for discharging their duties, and as regards the remainder of the two shares, the direction to the trustees is as follows.--"You should perform annually without failure the customary (not "the annual" as wrongly translated in the paper book), Pattah (meaning Fateha), Kuthum (meaning Khatam) etc. for our ancestors and for us after our decease. You should annually give in the month of Ramzan to mesakins or the poor ojinam i.e., food, udumanam, i.e., clothes, sadaka meaning alms, jagath, etc. The surplus should be divided in equal shares once a year by our heirs or their sons, grandsons in existence from generation to generation inclusive of you." The 3 share of the income after paying the expenses is to be "utilized in purchasing other immoveable property which is to be added to the said charity properties and dealt with according to the above terms," and if in any year no immoveable property is bought with the one-third of the net income, the amount is to be added to the two-thirds and "divided according to the above particulars." Two sons of the two executants were appointed Dharmakartas or trustees of the deed and it is provided that their successors should be male members of the family not exceeding 3 in number; the heirs of the donors should be entitled to call upon the trustees to render proper account of the management and to remove such of the trustees as may be guilty of mismanagement and appoint competent men in their place. The Dharmakartas and the successors, the heirs, and the descendants are not to receive more than the shares allotted to them out of the income and they will not be entitled to alienate the properties nor will the properties be liable for their debts. Such is the tenor of the deed, but before considering the question bow far the disposition is valid, we ought to mention that as found by both the Courts below the two executants of the document at the time of its execution were in solvent circumstances and owned properties of considerable value besides the two villages and that the gift in question was not made to defeat creditors.

(2.) In the deed itself the word "wakf" does not occur, but as the entire scheme of the disposition is to "tie up" the property in perpetuity by prohibiting alienation of it, it can only be upheld if at all as a wakf. The Mahomedan Law recognises another form of gift to charity called sadaqah, the only important distinction between it and wakf being that by sadaqah not only the beneficial interest but also the legal estate is passed to the particular charity to be held by the trustees appointed by the donor. In a wakf the legal estate or "ownership" is not vested in the Muttawalli or trustee but is so to speak transferred to God. The trustees or the beneficiaries of a wakf, therefore, are not authorised to alienate the wakf property unless especially authorised by the settlor or with the sanction of the Court in cases of necessity, and except in very especial circumstances the corpus of the dedicated property must be left intact and only the income can be devoted to the designated charitable purpose. On the other hand, when property is given by way of Sadaqah to some charitable object, the corpus itself or its equivalent, if the trustees find it proper or necessary to sell the property given in sadaqah and to convert it into some other form of property, and not merely the income is to be devoted to that object. The question, therefore, is whether a valid wakf has been created by Exhibit I.

(3.) One of the objections urged against its validity by the learned vakil for the appellant, who as a judgment-creditor of the executants of Exhibit I attached the property in execution of his decree, is that pattah or fateha, one of the objects of the gift, is a superstitious use not countenanced by the Hanafi canon law. As found upon the evidence which agrees with the general practice prevalent among Mahomedans in India, the ceremony of fateha consists in distribution of alms to the poor, accompanied with prayers for the welfare of the souls of deceased persons, either the prophet or other saintly personages in Islamic history or the donor's own ancestors. One would require very clear authority for the proposition that rites like these are condemned by the Mahomedan religion as superstitious, and we have not been referred to any such authority nor are we aware of any. Reliance is, however, placed on behalf of the appellant on the case of Kaleloola Sahib V/s. Nuseerudeen Sahib (1894) I.L.R. 18 M. 201 but there the main object for which the property was dedicated was of a very different character. It was "for the daily, monthly, and annual expenses of the afroesaid mausoleum (the tomb of the donor's husband) such as lighting, frankincense, flowers and salaries of the repeaters of Koran and readers of benedictions, &c, as well as for the annual fateha ceremonies of the deceased and after my death for my annual fateha ceremony." So far as it can be gathered from the report, fateha ceremonies and the reading of the Koran were to be performed at the tomb of the donor's husband and thus the learned Judges say in their judgment: "In the absence of an express authority showing that the dedication for ceremonies at a private tomb--and for that purpose only--is valid under the Mahomedan law, we do not think we ought to uphold the deed. It creates a perpetuity of the most useless description which would certainly be invalid under English Law;" and in another part of their judgment they state that "the result of an investigation of the authorities seems to be that endowments purely for purposes like the present seem to be against the principles of Mahomedan Law". We are not called upon in this case to determine how far the performance of ceremonies such as those mentioned in I.L.R. 18Mad. is in accordance with a proper interpretation of the texts of Mahomedan law or with the spirit of Mahomedan religion, the general aim of which undoubtedly is to avoid even the semblance of all idolatrous and superstitious practices. On the other hand the fact cannot be overlooked that for a very long time in India the custom has been largely prevalent of erecting mausoleum over the remains of men of reputed sanctity and for endowing property for their upkeep and for performance of religious ceremonies at such tombs, and such endowments have been recognised by the Courts as valid under the designation of durgahs, asthanas, khankahs, &c. It may be said, as is no doubt the opinion of Collins, C.J. and Parker, J. in Kaleloola Sahib's case (1894) I.L.R. 18 M. 201, that the Courts should not extend their recognition to endowments in connection with tombs of persons other than saints; but at the same time it can be argued that no line of distinction can be drawn on grounds of Mahomedan religion between the two cases. It is not, however, necessary for us to express any decided opinion on the point raised in Kaleeloola Sahib V/s. Nusurudin Sahib (1894) I.L.R. 18 M. 201. We are of opinion that the performance of fatehas, which so far as it involves the expenditure of any money consists in feeding the poor, is a valid object of wakf.