NAWABIADA KHAJEH ATIKULLA Vs. NAWAB KHAJEH HABIBULLA

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for recovery of the office of Mutawalli and, as ancilliary thereto, far possession and control of the properties covered by a Wakf. The Wakf in question was executed on the 6th May 1846, and it is alleged by the plaintiffs that the last Mutwalli, Nawab Sir Salimullah of Dacos, died on the 16th January 1915. They pray for reliefs in the alternative as follows: first, that the first plaintiff may be declared to be the Mutwalli appointed in accordance with the long-established custom and usage of the family and in conformity with the provisions of the deed of Wakf; secondly, if the court should come to the conclusion that the first plaintiff has not been validly appointed Mutwalli, the Court may issue orders for the nomination and election of the Mutwalli by the members of the family and thereafter to appoint the person so nominated. The defendant denied the claim and alleged that he had been duly nominated and appointed Mutwalli by his father. The Subordinate Judge has dismissed the suit, He has found that Nawab Sir Salimullah appointed the defendant as his successor on the 8th January 1915, and the appointment was confirmed by him five days later. The Subordinate Judge has further held that this appointment was valid and operative and that the alleged election of the first plaintiff had no legal effect. On the present appeal, the plaintiffs have sought to impeach the conclusions of the Subordinate Judge upon all material points, but in view of the course we propose to adopt, we have not thought it necessary to hear them on the merits.

(2.) The deed of Wakf is, on the face of it, invalid and inoperative in law. The gift to charity was illusory, and the chief, if not the sole, object of the Wakf was to create a settlement in perpetuity for the aggrandisement of the family. The test to be applied in oases of this character is, whether there is a substantial dedication of the property to charitable uses at some period of time or other the deed is a valid Wakf if its effect is to give the property in substance to charitable uses; it is not so, if the effect is to give the property in substance to the testator s family: Mahomed Ahsanulla v. Amarchand Kundu 17 C. 498; 17 I. A. 28; 5 Sar. P. C. J. 476; 8 Ind. Dec. (n. s.) 871. Abul Fata Mahomed Ishak v. Rasamaya Dhur Chowdhury 22 C. 619 (P. C.); 22 I. A. 76; 6 Sar. P. C. J. 572, 11 Ind. Deo. (n. s.) 412. Mujib-un-nissa v. Abdur Rahim 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. Muhammad Munawar Alt v. Razia Bibi 32 I. A. 86; 27 A. 320; 9 C. W. N. 625; 2 A. L. J. 513; 2 C. L. J. 179; 15 M. L. J. 261; 8 Sar. P. C. J. 788. and Ramanadan Chettiar v. Vara Leuvai Marakayar 39 Ind. Cas. 235; 40 M. 116; 25 C. L. J. 224, 21 C. W. N. 521; 32 M. L. J. 101: 15 A. L. J. 139; 5 h. W. 293; (1917) M. W. N. 180; 21 M. L. T. 215; 1 P. L. W. 394; 19 Bom. L. R. 401; 441. A. 21 (P. C.). This very document was under consideration in the case of Habibullah v. Soleman Quader 53 Ind. Cas. 764; 80 C. h. J. 102; 24 C. W. N. 18. and the Court then came to the conclusion that as the gift to Charity was illusory, there Was no valid Wakf. We invited, however, the learned Vakil for the plaintiffs-appellants to address the Court on the Question of the legality of the Wakf irrespective of the decision of this Court in the case last mentioned. Bat he conceded that in view of the long series of decisions of the Judicial Committee, any attempt to support the validity of the Wakf would be futile. He did not also dispute that the Musalman Wakf Validating Act of 1913 was not retrospective in operation and could not validate the Wakf which was invalid in its inception. He argued, however, that as in the Court below the parties had proceeded on the assumed basis that the Wakf was good and valid, this Court was not competent to determine whether this assumption was or was not well founded. He contended in substance that although we must examine the provisions of the instrument in order to determine the rights of the parties, yet we most not form an opinion as to its legality, even though on the very fees of the document it was apparent beyond controversy that the object of the Wakf Was a perpetual family settlement with an ultimate illusory gift to the poor We are clearly of opinion that this contention cannot possibly prevail.

(3.) It is well settled that if the illegality of a transaction is brought to the notice of the Court, the Court will not assist the person who invokes its aid, even though the defendant has not pleaded the illegality and does not wish to raise that objection In support of this proposition, reference may be made to the decision of the Judicial Committee in the case of Connolly v. Consumers Cordage Co (1903) Beauchamp P. C. 49; 89 L. T. 347. where Lord Halsbury observed as follows: "Their Lordships entertain no doubt that it is the right and duty of the Court, at any stage of the Cause, to consider, and, if it is sufficiently proved, to act upon, an illegality which may tarn out to be fatal to the claim of either of the parties to the litigation." The Lord Chancellor added that" their Lordships did not doubt that the learned Judges who tried the case in the Court below had a right and that it was their duty, if they thought that the facts were established, to take care that the process of the Court should not be used for the purpose of establishing a claim that ought not to be permitted to be enforced in a Court of justice. "In that ease, however, as the Supreme Court of Canada had assumed the existence of an illegal conspiracy which had not been made the subject of investigation by the trial Court [consumers cordage co. v. Connolly (1901) 31 Canada Sup. Ct. 244 at p 296. per Girouard, J.] the Judicial Committee remanded the suit for a new trial, on the ground that a new point in appeal should not be allowed to be taken, if evidence could save been brought to affect it, had it been taken at the trial. The principle thus enunciated by the Judicial Committee, has been repeatedly applied. Thus, in Scott v. Brown (1892) 2 Q. B 724; 61 L. J. Q B. 738; 4 R. 42; 67 L. T. 782; 41 W. R. 116; 57 J. P. 213. a company promoter came into Court to enforce against his confederate a contract for purchase of shares at a fictitious premium. The contract was not sham, but it was part of a scheme, mush favoured by company promoters, for deluding the public into thinking that there U a bona fide market for the shares. The plaintiff had to disclose the turpis causa*, with the result that the Court of Appeal "drove him from the judgment seat." Lindley, L. J., observed with epigramatie severity, "I am quite aware it is very common, so is pocket picking," and rested his decision on the ground that no. Court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to its notice and if the person invoking its aid is himself implicated in the illegality. It matters not whether the defendant has pleaded illegality or whether he has not; if the evidence adduced by the plaintiff proves the illegality, the Court ought not to assist him. To the same effect are the decisions in Gedge v. Royal Exchange Assurance Association (1900) 2 Q. B. 214; 69 L. J. Q. B. 506; 82 L. T. 463; 15 T. L. B. 344; 5 Com. Cas. 229; 9 Asp. M. C. 57. Royal Exchange Assurance Corporation v. Sjoforsakrons Aktie bolaget Vega (1902) 2 K.B. 384; 71 L. J. K. B. 739; 50 W. R. 694; 87 L. T 356; 18 T. L. R. 714; 7 Com. Cas. 205; 9 Asp. M. C. 329. Thomas v. Dey (1908) 24 T. L. R. 272. and Luckett v. Wood (1908) 24 T. L. R. 617. A similar view has been adopted in the Courts of the United States; thus in Fabacher v. Bryant (1894) 46 La. Ann. 820; 15 Southern 181. Miller, J., ruled that the Court, in aid of public policy and the law, will notice, irrespective of the pleadings, that the controversy submitted for adjudication grows out of illegal purposes or combinations, and when that illegality is manifested by the record, it is obligatory on the Court to dismiss the suit. If a contrary view were adopted as to the duty of the Court, the Court would have to assist a highwayman who might have the audacity to file a bill in equity for an account against his partner: Everett v. Williams (1725) 9 L. Q. R. 197. for the legend mentioned by Lord Kenyon, in Ridler v Moore (1797) Clifford Election Cases 871. by Bacon, V. C., in Ashhurst v. Mason (1875) 20 Eq. 225 at p. 280; 44 L. J. Ch. 387; 28 W. R. 506. and by Jesse], M. R., in Sykes v. Beadon (1879) 11 Ch. D. 170 at p. 195; 48 L, J. Ch. 522, 40 L. T. 243) 27 W. R, 464. has turned out to be by no means apocryphal: See Note by Evans on Pothier on Obligations, Volume II, page 3.