SRIMATI KARIMUNNESSA CHOWDHURANI WIDOW OF SYED MIR ALUM; SYED BADRUL HYDER CHOWDHURY Vs. SRIMATI EKIWA; ALI ASHRAF CHOWDHURY

JUDGEMENT

(1.) These two appeals are preferred against a decision of the learned District Judge of Noakhali. The decision appealed against affirmed two other decisions, one of them being pronounced by the Subordinate Judge of Noakhali and the other being pronounced by the Munsif at Sudharam. The two cases in substance involve only one question and the rights of the parties must be governed according to the view that we take of a particular document called a waqf. The waqf in question is a document executed in the year 1291 by a Muhammadan lady named Srimati Budrunnessa Chowdhurani who was the daughter of Muhammad Afzul Chowdhuri and the wife of Sri Dowlut Gazi Chowdhuri. The deed after the appropriate recitals proceeds to state that the executant is in possession of the properties mentioned in the document. Then it states that she owes a particular debt of Rs. 310 but otherwise she is not indebted to anybody. Then the document runs in these terms:

(2.) "I have thought it proper that, in my lifetime, I should according to my Muhammadan religion, settle the property mentioned in the schedule hereinafter given according to the scheme herein laid down with the object of my future good as well as with the object of providing and not disappointing my successor or successors or other person or persons. To attain this object, I could not do any other act but make the waqf. Accordingly I have endowed and made for ever a waqf of the property mentioned in the schedule given below, names and details with Sudder jama of which are also set forth. 23 A. 233: 28 I.A. 15 : 5 C.W.N. 177 : 11 M. L.J. 58: 3 Bom. L.R. 114 : 7 Sar. P.C.J. 829. The income of the properties mentioned in Schedule I is reserved for the repairs to my dwelling house, repairs to the mosque in front of the dwelling house of my husband in Perganah Melorkul as also for repairs to the tank, as well as it is reserved for meeting the expenses of lightning, paying the wages of khatib, the expenses of Durga Bati of Sha Neamah, the expenses of travellers and guests, for Khateni and maulood Shariff and for charitable purposes. 20 C. 116 : 10 Ind. Deo. (N. s.) 79. The income from the property mentioned in schedule II is to be applied to providing breakfast during Ramzan and meeting the expenses of the two eads in the sum of Rs. 25 per annum making repairs to my dwelling house and the four enclosures in the sum of Rs. 100 per annum, paying to my daughter Srimati Karimunneesa Rs. 25 per month, to Ghani Mian, a member of my family, that is to say, the son born to my aforesaid husband from the womb of his Khadema Rs. 8 per month, to Ahmed Mian Rs. 8 per month and to Yakina Banoo, the daughter born to my husband of the womb of his another Khadema Rs. 10 and Srimati Hasina Banoo Rs. 4 per month." It is not necessary to go through the rest of the provisions of the deed in detail. The mutwahship was kept in the family. Clause 4 C. L.J. 442. of the document contains a very significant provision, namely, that the husband of the executant with the consent of their daughter might make a Will, though it is not clear that the Will which he might make was to override all trusts or the other conditions of the mutwaliship. But the other Clauses in the document show quite clearly that the intention was that the family house and the tank should be kept in repairs and that those should be enjoyed by the daughter and her successors and also that the income of the property and any portions that might be added thereto should go to the only child of the founder Karimunnessa and her successors. It seems to me quite clear on these terms that what the settlor had in view was that, although a certain portion of the property was to go for objects religious and charitable, the main object was the benefit of the daughter and her successors. The lady died and one of these suits was brought by Srimati Ekina Banoo who was the illegitimate daughter of her husband to recover the arrears of the annuity or stipend as it was called which was given to her by the deed The first question is whether, having regard to the Privy Council decisions prior to the recent Act, this deed was a valid deed of endowment as a waqf. The Privy Council decisions laid down generally that the test as to whether a deed was a valid deed of waqf was whether the property in substance had been dedicated to religious and charitable purposes. The case in Bazlul Ghani Mia v. Adak Patari (1)*** is an illustration where that Rule was applied but each case must depend on the circumstances existing at the date of the execution of the deed. The true test is whether, having regard to all the circumstances of the case the dominating purpose and intention of the grantor was to provide for the charities. Applying that test to the present case, I am of opinion that was not the purpose and intention of the grantor. The decisions of this Court, however, show that, even if the document may not be wholly good but there are religious and charitable trusts constituted by the document, these trusts may be declared to form a valid charge on the property. That is, I think, the view that we can take with regard to the religious and charitable trusts as set out in this particular document This view relating to the charge was recognized not only in the case of Mahomed Ahsanulla Chowdhry v. Amarchand Kundu 17 C. 498 : 17 I.A. 28 : 5 Sar. P.C.J. 476 : 8 Ind. Dec. (N.S.) 871. but also in the case of Alamgir Khan v. Kamrunnessa Khanum 4 C.L.J. 442. Now, what are the trusts in this case? The trust for keeping the mosque in repairs is, of course, a valid religious and charitable trust. No Muhammadan would argue otherwise. The question in dispute in this case is with reference to the annuity to Ekina Banoo who is an illegitimate daughter of the husband of the founder. The learned Judge has found that she was destitute and unprovided for by her father and that without the small annuity of Rs. 10 per month, she would have nothing to live on. In that view, I think the annuity in her favour and the other illegitimate children can be supported as a charitable gift. I think that we ought to affirm the decision appealed from as regards the arrears of the annuity due to Ekina Banoo. It is said that some observations have been made by the learned Judge with reference to these annuities having been satisfied by some other transactions the nature of which apparently the learned Judge of the lower Appellate Court was not aware of, nor are we. How, therefore, we can say that Ekina Banoo s annuity has been satisfied by some unknown other consideration, I do not know. That disposes of the suit brought by Ekina Banoo excepting that there is a cross-objection preferred by her claiming interest. The question of interest is a matter in the discretion of the Court and the Judges in the Courts below obviously were entitled to allow or refuse interest. What was the view of the learned Judges in refusing interest we do not know. It seems that they came to the conclusion that some thing had bean given in lieu of interest. I do not think that in a casa that arises out of a document of fie character of a waqf, we ought to award interest in favour of the person claiming under the terms of the document.

(3.) The other appeal arises oat of a suit brought by one Budral Haidar Chowdhuri and others to recover possession of the lands mentioned in the deed of waqfnama. The Judge of the lower Appellate Court has dismissed that suit holding that the waqf was good. In the view, we have taken, the waqf as regards the interest other than that validly dedicated was not a valid dedication by the founder. In that view, the plaintiffs are entitled to recover possession of those lands, although, of course, they are bound to satisfy and keep down the charges mentioned in the waqfnama which we have held to be valid in so far as they affect the lands which the plaintiffs are entitled to recover in this suit.