The interests of the imambara are paramount and no administration by the persons claiming could be legally sanctioned which was in violation or betrayal of the interests of the imambara as safeguarded by the imposition of the condition which attached throughout to the grant.

Judgement

Appeal (No. 54 of 1922) from a decree of the Court of the Judicial Commissioner (January 10, 1920) reversing a decree of the Additional District Judge of Nagpur (December 18, 1918).

The suit was brought by the appellant against the respondents claiming by his plaint a decree under s. 83 of the Central Provinces Land Revenue Act to cancel entries in the record of rights showing the respondents as co-sharers with him in three villages, and to substitute his name as the full 16 annas mokasdar and mutawalli thereof.

The facts appear from the judgment of the Judicial Committee.

The District Judge held that the grant created a religious charitable trust for the imambara, that the wakf had been recognized by the British Government, and that the nature of the grant could not be altered by the Settlement Orders of 1867, whereby both sons of the grantee had been recorded as owners. He found further that Bunyad Hussain had appointed the appellant, his son, mutawalli, and that he as mutawalli had authority to do so. He accordingly made a decree as prayed.

On appeal the decision was reversed and the suit dismissed. The learned judges were of opinion that no wakf was created and that the grant was a personal grant with a condition attached. They did not think it probable that a Hindu ruler would create a wakf in the sense of Mahomedan law, and were of opinion that the evidence showed that the grant had not been regarded or treated as having created one. They therefore held that the plaintiff could not maintain his claim as mutawalli.

1923. Nov. 20. De Gruyther K.C. and Abdul Majid for the appellant. The grant being for the perpetual support of an object recognized in Mussulman law as a religious object is a valid wakf ; it is not material that the word " wakf " is not expressly used Piran v. Abdool Karim (( 1891) I. L. R. 19 C. 201, 216.); Jewan Doss Sahu v. Kubeer-ood-deen (( 1840) 2 Moo. I. A. 396, 421.), followed in Muhammad Hamid v. Mian Mahmud (( 1923) L. R. 50 I. A. 92.) ; Ameer Alis Mahommedan Law, 4th ed., vol. i., pp. 194, 216; Wilsons Anglo-Muhammadan Law, 3rd ed., paras. 317, 322. The property has been treated as a wakf, in that the income has been applied to the mainten ance of the imambara. The religious creed of the donor is not material in considering the validity of the wakf Sarkar Sastris Hindu Law, 4th ed., p. 480. It is true that Mad. Act VI. of 1913 refers to gifts made by "persons of the Mahomedan faith," but that does not affect the question; the Act is merely an enabling Act for Mahomedans. There is nothing to prevent the property being administered according to Mahomedan law. The appellant was mutawalli, having been duly appointed by his father. When the founder of a wakf does not provide for the succession of mutawallis, each mutawalli can nominate his successor.

The respondents did not appear.

1924. Jan. 28. The judgment of their Lordships was delivered by

LORD SHAW OF DUNFERMLINE. This is an appeal from a decree of the Court of the Judicial Commissioner of the Central Provinces dated January 10, 1920, reversing a decree of the Court of the Additional District Judge of Nagpur dated December 18, 1918. The case was argued before the Board ex parte.

The point of the appeal as presented was whether in the year 1840 Raja Raghoji Bhonsla, a Hindu ruler, created a wakf of three villages—namely, Gorewara, Sonkham and Nankapar, to Hakim Yadgar Hussain, the royal physician. The document so said to create a wakf is as follows " From Raghoji Bhonsle, Sena Saheb Subha. The village of Mauza Gorewara in this pergana is given as mokasa in the Arabic year 1241/ 1840 (Fasli year 1250) to Hakim Yadgar Hussain for the imambara of Pir Hussain, with all income of land revenue, pandhari extra income, kalali and mango groves, for ever from the commencement of the current year. It is assessed to a rental of Rs. 401-12-0. You may therefore continue the mokasa from year to year and generation to generation. Dont expect a fresh sana