BALLA MAL Vs. ATA ULLAH KHAN

JUDGEMENT

(1.) On March 16, 1907, the late Mian Muhammed Bakhsh executed a wakfnama or a deed of wakf, by which he purported to dedicate all his remaining properties to charity subject to certain provisions for his own maintenance and the maintenance of the people who had claims on him. He died within the year, on January 15, 1908, and thereupon his son Nasir-ud-Din took possession of the properties, successfully opposed the application for mutation of names made on behalf of the present plaintiff, who was then a minor, as mutawalli of the wakf, and remained in possession until his death in July, 1913. In the following year, the house property included in the wakfnama was attached in execution by one of his creditors, and the plaintiff's objections as mutawalli to the attachment having been disallowed, he filed the present suit by his next friend to establish the rights of wakf.

(2.) The Subordinate Judge at Amritsar and the High Court at Lahore both decided in his favour, and the defendants, who represent the attaching creditors, then obtained leave to prefer the present appeal to His Majesty in Council. The only question argued before their Lordships was whether under the wakfnama the properties of the settlor were validly dedicated to charitable purposes, and it was admitted that, if the wakfnama had been executed subsequently to the passing of the Mussulman Wakf Validating Act, 1913, it would not have been open to objection. It has, however, been ruled by the Board in Khajeh Solehman Quadir v. Nawab Sir Salimullah Bahadur (1922) L.R. 49 I.A. 153, s.c. 24 Bom. L.R. 1257 that the Act has no retrospective operation, and it therefore becomes necessary to examine the provisions of the deed in the light of the decisions of the Board as to wakfs which were unaffected by the Act. Under the Act a wakf is not rendered invalid because it appears that the main object of the settlor was to make a settlement of his property on his family rather than to devote it to what are ordinarily understood as charitable purposes, whereas, with regard to wakfs created before the passing of the Act, the test still is, as laid down by the Board in Sheik Mahomed Ahsanulla Chowdhry V/s. Amarchand Kundu (1889) L.R. 17 I.A. 28; Mujib-un-Nissa V/s. Abdul Rahim (1900) L.R. 28 I.A. 15, s.c. 3 Bom. L.R. 114; Mutu Ramanandan Chettiar V/s. Vava Levvai Marakayar (1916) L.R. 44 I.A. 21; and Khajeh Solehman Quadir V/s. Nawab Sir Salimullah Bahadur (1922) L.R. 49 I.A. 153, s.c. 24 Bom. L.R. 1257, was there a substantial dedication of the properties included in the wakf to charitable purposes ? The test may sometimes be difficult of application, and in applying it the Courts, especially since the passing of the Act, will not be disposed to construe the provisions of the deed too strictly; but still the question must remain whether the properties included in the wakf have been substantially dedicated to charity, or whether they have been put into wakf by the settlor with the real object of effecting Home non-charitable purpose such as, for instance, that of making a family settlement of his property which would otherwise be invalid as opposed to the Muhammadan law of succession.

(3.) In the present case Mian Muhammed Bakhsk had already made a charitable disposition, in accordance with his means, by the creation of an earlier wakf, which is mentioned in the deed; and it appears fairly clear that it was because Nasir-ud- Din, his only son, was a man of bad character, that he decided to put the rest of his property into wakf. This he was at full liberty to do, provided that he devoted it substantially to charity. Further, seeing that he was putting all his remaining property into wakf, it necessarily followed that he must be at liberty to make some provision for the maintenance of himself and of those who were dependent on him for the term of their lives, and such provisions would be in no way inconsistent with a substantial dedication to charity. On the other hand, if it should appear that the bulk of the income was settled on the line of his own descendants, and need only go to charity on failure of such line, an event which might be indefinitely postponed, then the fair inference might be that his object was to make a settlement on his family which would not otherwise have been possible, and that property settled on such terms could not properly be said to be substantially dedicated to charity.