Judgement

Appeal from a judgment and decree of the High Court (February 8, 1910) affirming the decree of the District Judge of Tanjore (April 23, 1906) which varied the decree of the Subordinate Judge of Negapatam.

The sole question in the appeal was whether a deed dated July 28, 1893, whereby two brothers, who were Mahomedans of the Hanafi sect, settled immovable property in trust to apply an indeterminate portion of the income to religious and charitable purposes, and to apply the residue of the income in

74 Law. Rep. 44 Ind. App. 21 ( 1916- 1917) Mutu Ramanadan C hettiar V. Vava Levvai Marakayar

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perpetuity for the benefit of the settlors family without power of alienation, was a valid wakf. The suit was instituted by the appellant, a judgment creditor of the settlors, against their heirs for a declaration that he was entitled to bring the land comprised in the deed to sale in execution. The respondents were the heirs of the settlors, the two first respondents being the trustees under the deed.

The terms of the deed and the circumstances of the case fully appear from the judgment of their Lordships.

The Subordinate Judge found that the annual value of the property was Rs.1500. He estimated the cost of the ceremonies and charities directed to be performed, as based upon the previous practice of the settlors, at Rs.600 annually including the remuneration provided for the trustees. He made a declaration that the settlement was good to that extent.

The District Judge held that on the findings of the Subordinate Judge there was a substantial gift to charitable purposes and that the whole property was therefore validly settled, and he dismissed the suit.

Upon appeal to the High Court the learned judges (Benson and Abdur Rahim JJ.) held (1.) that there was a good perpetual trust for almsgiving at Ramzan, also for prayers for the deceased ancestors, because the expense then incurred went to feed the poor; (2.) that the trust for the family failed; (3.) that, on the construction of the deed, the settlors intended that the trustees should divide the income equally among the objects mentioned. They cited the opinion of Mahomedan writers to the effect that where a donor mentions several purposes as the object of his bounty, and one of those purposes fails, then, if a general intention of dedicating the property to charity appears, the entire property is to be devoted to the charitable objects mentioned, or to the poor. Applying that principle, they held that the wakf was valid, and that the income was to be devoted for the benefit of the objects mentioned in the deed other than the heirs of the settlors. They accordingly dismissed the appeal. The judgment is reported at I. L. R. 34 Madr. 12.

1916. Nov. 2, 3, 6. De Gruyther, K.C. and Kenworthy Brown, for the appellant. To constitute a valid wakf the trust must be substantially for religious or charitable purposes; if the trust is primarily for the benefit of the settlors family the entire trust fails Mahomed Ahsanulla Chowdhry v. Amarchand Kundu (( 1889) L. R. 17 Ind. Ap. 28.); Abul Fata Mahomed Ishak v. Russomoy Dhur Chowdhry (( 1894) L. R. 22 Ind. Ap. 76.); Mujibunnissa v. Abdul Rahim. (( 1900) L. R. 28 Ind. Ap. 15.) Act

VI. of 1913, which altered the law, is not retrospective. The deed was primarily intended for the benefit of the family. The ceremonies directed to be performed are those which would ordinarily be performed by every respectable Mahomedan. It is left entirely to the trustees as to how much shall be given to the charitable objects named. So, too, the setting aside of a third of the income is discretionary; if it is not set aside it goes to the benefit of the family. The deed uses the word "charity," but it does so in the general Mahomedan sense, which includes a benefit to the settlors family. In any case the surplus was directed to be applied solely for the benefit of the family, and the trust of the surplus is consequently bad. The view of the High Court that the g