Judgement

Appeal (No. 75 of 1929) from a decree of the High Court (December 15, 1927) reversing a decree of the Subordinate Judge of Basti (January 26, 1925).

The suit was brought on July 26, 1924, by the appellant against his elder brother, the first respondent, and certain transferees from him who took no part in the proceedings. The appellant by his plaint claimed that he was joint owner of certain villages, and that his brothers claim to exclusive ownership was without foundation. The contesting parties were the sons of Khadim Husain, a Mahomedan of the Hanafi school who died on August 21, 1901, having by his will pro vided (inter alia) that respondent No. 1 should have pro prietary possession of the villages in suit, and out of the income should maintain the disciples and female slaves in accordance with the will of the testators father. The main questions arising in the suit were (1.) Whether under the provision above referred to respondent No. 1 took a beneficial interest in the property so as to render the provision invalid under Hanafi law in the absence of consent by the other heirs; (2.) whether a registered deed of March 11, 1910, executed during the minority of both brothers by their mother, who had been appointed their guardian by the will and purported to execute it on their behalf as well as on her own, and by their three sisters, operated either (a) as a consent by the plaintiff, or (6) as a binding family arrange ment ; (3.) whether the suit was barred by limitation; (4.) whether the plaintiff, if successful, was entitled to a half, or, as the Subordinate Judge held, to a quarter only of the properties in suit. The printed case of respondent No. 1 upon the present appeal raised, for the first time, a further question—namely, whether the will of 1901 and the wills of the testators father and grandfather constituted a valid wakf, the respondent (defendant) being the mutawalli.

The facts appear from the judgment of the Judicial Committee.

The High Court, reversing the decree of the trial judge, dismissed the suit. The learned judges (Mears

C.J. and Mukerji J.) were of opinion that the testator set apart the property in question, not as a gift to his son, but as a trust for the maintenance of the dependents and their descendants, the son being made a trustee and nothing more, and that accordingly the will was not invalid. They held further (1.) That the mother by implication was appointed executrix, as well as expressly guardian of the minor sons, and that the effect of the deed of March 11, 1910, being eminently beneficial to the interests of the family as a whole, was binding upon the plaintiff as a family arrangement; (2.) that the suit, though not barred by art. 144 of the Limitation Act, was barred by art. 44 ; (3.) that for reasons appearing in the present judgment, the plaintiff even if successful would have been entitled to a quarter only of the properties in suit.

1931. Nov. 2, 3, 5. Dube K.C. for the appellant. There is no decision of the Board whether or not a Mahomedan can make a valid wakf in favour of his servants and dependents, though it is stated that he can in Ameer Ali on Mahommedan Law, 4th ed., vol. i., p. 277. The terms of the Mussalman Wakf Validating Act, 1913, do not include a wakf of that kind. But in any case a valid wakf was not constituted in the present case. The language used does not show an intention to create a wakf, also there is no gift of the ultimate residue to charity, and by decisions of the Board that is essential Khajeh Solehman Quadir v. Salimullah (( 1922) L. R. 49 I. A. 153, 163.) and cases there cited; Muhammad Munawar Ali v. Razia Bibi (( 1905) L. R. 32 I. A. 86.), where the alleged wakf was partly in favour of servants. The authorities are collected in Wilsons Anglo-Muhammadan Law, § 323. The intention of the will was that respondent No. 1 should have proprietary possession of the property charged with the maintenance of the disciples and female slaves out of the in