Judgement

Appeal (No. 28 of 1921) from a judgment and decree of the High Court (June 6, 1919) reversing a decree of the Subordinate Judge of Dacca.

The suit was brought by the present appellants against the deceased respondent (the legal representative of Ahsanullah, deceased) and others, to recover about Rs.46,000 as arrears of certain allowances claimed by them under two agreements of 1881. The circumstances in which the suit was brought appear from the judgment of the Judicial Committee.

The plaintiffs by their plaint pleaded the validity of wakfs of 1846 and 1868, and of agreements of 1881, and the invalidity of a heba bilwaz of 1895 ; the purport of those documents appears from the judgment. They stated that the cause of action arose during their minority and that consequently the suit was not barred by limitation. In the written statement of defence it was pleaded (inter alia) that the properties included in the wakf deed of 1868 were pro perties belonging to Abdul Gani; that the wakf deed was invalid ; that the allowances referred to in the agreement of 1881 were personal only and the plaintiffs had not then been born and were not entitled to sue on the agreement and had no right to the arrears claimed ; that no decision by the family panchayet had been given in the plaintiffs favour and that their claim was time barred.

Numerous issues were framed, of which issue 9 was as follows Have the plaintiffs any right or title to the allowances claimed in the plaint; was any right created in their favour by the memorandum of agreement and the deed of agreement referred to in the plaint as well as by the withdrawal of suit No. 189 of 1880 ?

The Subordinate Judge made a decree in favour of the plaintiffs, but that decree was set aside by the High Court on appeal and the suit dismissed upon grounds which are summarized in the judgment of the Judicial Committee. Under the third head of that summary the learned judges (Mookerjee and Walmsley JJ.) after analyzing the provisions of the agreements of 1881, said " It is manifest that the scheme is founded on, and is inseparably associated with, the wakfs of 1846 and 1868 ; consequently, as soon as those wakfs are pronounced to be invalid and inoperative in law the entire scheme must be shattered to pieces.....In our opinion there is good ground for the contention that a scheme for family allowances so framed would itself be contrary to law." After referring to the decision of the Judicial Committee in Raja of Ramnad v. Sundara Pandiyasami (L. R. 46 I. A. 64.), they said " In that case the scheme for grant of maintenance in perpetuity was upheld, only because the maintenance was charged on the estate, and this accords with the earlier decisions of the Judicial Committee. In the case before us, however, the allowance payable to each member is not charged upon the estate ; indeed it could not be so charged, as the founders had made a permanent dedication of their properties for what, in their judgment, constituted purposes religious, pious or charitable-Whenever a wakf is created, the ownership of the appropriator in the thing dedicated is extinguished, and there is a detention of the thing in the implied ownership of God in such a manner that its profits may revert to, or be applied for, the benefit of mankind. Consequently, it would be wrong to assume that the persons who created these wakfs in the belief that the dedications were lawful, could ever have intended that a charge should be created on the dedicated estate for a purpose which was not religious, pious or charitable. . . . But the creation of a succession of such allowances from generation to generation in favour of unborn persons, apart from a scheme of valid wakf, does not appear to be recognised by Mahomedan law." On that question the learned judges referred to Amtul Nissa v. Mir Nurudin (( 1896) I. L. R. 22 B. 489.), and other decisions of the Courts in India, also to Umjad Ally Khan v Mohumdee Begum. (11 Moo. I. A. 517.)

L