C KUNHAMUTTY Vs. THONDIKKODAN AHMAD MUSALIAR

JUDGEMENT

(1.) The question in both the Lower Courts was whether two documents (Exs. A and B) created a valid wakf. The trial Judge (the District Munsif) held on the authority of Kaleloola Sahib v. Nuseerudeen Sahib (1894) I.L.R. 18 Mad. 201 : M.L.J. 40 by which case he felt himself bound, that the dedication which Exs. A and B evidence, namely, of properties the income of which is to be devoted to reading the Koran at a private tomb is invalid under the Muhammadan Law; and unless it had been shown that the decision referred to above had been expressly or impliedly overruled or dissented from in later decisions of the Madras High Court, the learned District Munsif was perfectly correct in accepting that position as he states that his attention was not drawn to any such decision. The learned Subordinate Judge, however, has relied upon the opinion expressed by Mr. Ameer Ali in his work on Muhammadan Law, Vol. I, page 351, where the correctness of Kaleloola Sahib V/s. Nuseerudeen Sahib (1984) I.L.R. 18 Mad. 201 : 5 M.L.J. 40 is questioned. He has also referred to Mazhar Husain Khan V/s. Abdul Hadi Khan (1911) I.L.R. 33 All. 400 and the opinion there stated (at page 412) of Banerji, J., where in dealing with Kaleloola Sahib V/s. Nuseerudeen Sahib (1894) I.L.R. 18 M.L.J. 201 : 5 M.L.J. 40 he states: No authority was referred to by the learned Judges of the Madras High Court for holding a contrary opinion, and I see no reason to accept it. I hold that fateha expenses are a valid object of waqf.

(2.) This, it seems to us, is a most unfortunate reference since the learned Subordinate Judge omits to observe that Stanley, C.J., who with Banerji, J., formed the Bench in that case, stated in the course of his judgment on page 404: But as regards the expenses of fateha ceremonies and the salary of Hafiz and readers of the Quran, I am disposed to think that these are not proper objects of wakf.

(3.) In support of this opinion Stanley, C.J., refers to the view expressed by Karamat Hussain, J., of the same High Court in Fakhr-ud-din Shah V/s. Kifayat-ul-lah (1910) 7 A.L.J. 1095. We do not propose to refer to those views which are quite sufficiently set out in the judgment of Stanley, C.J., on pages 404 and 405. It is difficult to understand why the learned Subordinate Judge omitted all reference to the views of Stanley, C.J., having regard to the fact that the head-note clearly shows that he had, to say the least, doubts about the matter. It must be observed also that the facts were a good deal stronger there than in the present case. He then refers to Ramanandan Chettiar V/s. Vava Levvai Marakayar (1916) L.R. 44 I.A. 21 : I.L.R. 40 M.L.J. 16 : 32 M.L.J. 101 (P.C.). There it was held that the test of whether a deed was, or was not, valid as a wakf in the cases decided before Act VI of 1913("Mussalman Wakf Validating Act") was that if the effect of the deed was to give the property substantially to charitable uses it would be valid but if the effect of it was to give the property in substance to the settlor's family it would be invalid under Muhammadan Law. In that case the charitable objects were classified under four heads: - (1) cash doles to the poor on the 28 and 29 of the Ramzan month, which among Muhammadans is regarded as a holy month in which giving alms to the poor is enjoined as a duty; (2) distribution of clothes to the poor on those days; (3) distribution of conjee to the poor on a misjed during the thirty days of that month (Ramzan); (4) performance of fatehas on three days of ancestors and feeding of friends and the poor. Their Lordships further point out on page 121 that Act VI of 1913 by Section 3 expressly enacted that 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 the Mussalman Law for the maintenance and support, wholly or partially, of his family, children or descendants". They add: It was not contended that this statute affects the present appeal, and the following decisions of this Board, which their Lordships think they are bound to follow, clearly establish that the Muhammadan Law, as "interpreted by the Board, does not treat such a gift per se as a good and valid wakf. and amongst other cases Mujib-un-nissa V/s. Abdur Rahim (1900) L.R. 28 I.A. 15 : I.L.R. 23 All. 233 at 242 : 11 M.L.J. 58 (P.C.) and the observations of Lord Robertson in that case at p. 243 are set out. They are as follows: Their Lordships have, however, considered the question whether even assuming it to have been registered, the deed is, according to its terms, a valid deed of wakf. It will be "so if the effect of the deed is to give the property in substance to charitable uses. It will not be so if the effect is to give the property in substance to the testator's family.