JUDGMENT

Ameer Ali, J. - The question raised in this reference is of such vital importance to the Mahomedans of India and so materially affects their law and religion, the enjoyment of which has been guaranteed to them by the British Government, that I must state at some length the reasons that have compelled me to differ from my colleagues.

2. The facts of the case are as follow:

One Bikani Mia, a Mahomedan inhabitant of Dacca, shortly before his departure in 1874 on a pilgrimage to Mecca, executed a wakfnama in respect of a considerable portion of his property and registered the document in accordance with the law.

The deed recites that the executant was in the full possession of his sense and power of understanding," that he was not indebted to anybody, that the property to which it related was acquired by Bikani himself, and that he had an "exclusive right, ownership and possession therein.

3. The executant then goes on to say--

I now think it advisable to lay down, according to our Mahomedan shara, certain rules in respect of the properties mentioned in the schedule given below, whereby my name and memory may be perpetuated for ever, my sons and daughters and their descendants may be decently maintained out of the income of those properties, and the properties may not suffer in consequence of disputes among my sons and daughters aforesaid or their descendants. Therefore, on the terras laid down in the following rules and paragraphs, I do hereby make a permanent wakf of the undermentioned properties in favour of my two sons, viz., Sriman Abdul Rahaman Mia and Sriman Abdul Sobhan Mia, my four daughters, viz., Srimoti Moni Bibi, Srimoti Chuni Bibi, Srimoti Akkal Bibi, and Srimoti Adar Bibi, and any wife Srimoti Panna Bibi, and after them the successive descendants of my said sons and daughters, and on their death, i.e., in the case of all my said sons and daughters, and their descendants dying issueless, in favour of the poor, the indigent and the beggars residing in the town of Dacca. Taking the said wakf properties out of my (personal) ownership and possession, I hold them in possession as mutwalli under the terms of this wakf. As long as I shall live I myself shall continue to be the mutwalli, and as such shall do everything according to the terms of the said wakf. On my death my two sons Sriman Abdul Rahaman Mia and Sriman Abdul Sobhan Mia shall, as hereinafter provided, be appointed mutwallis in my place.

4. Paragraph 1 runs thus:

I or any one among my wife, sons and daughters and their successive descendants, viz., those in whose favour a permanent wakf of the aforesaid properties has been made, shall never to competent to possess or in any manner waste any portion of the wakf properties mentioned in the wakfnama. After my death whoever may be the mutwalli shall, out of the net income or balance remaining after payment of the sudder revenue of the aforesaid properties and the collection" charges, spend Rs. 50 annually in the name of Allah (i.e., for religious purposes), and pay Rs. 100 annually to my eldest son Sriman Abdul Rahaman Mia, Rs. 100 annually to my younger son Sriman Abdul Sobhan Mia, Rs. 50 annually to each of my said daughters, and Rs. 50 annually to my said wife. Beyond these they shall not be entitled to get or take a cowrd; whatever balance may remain after meeting the aforesaid expenses shall be added to the wakf funds as deposit money. And after the death of my said wife the sum of Rs. 50 payable to her shall in the above manner be deposited with the aforesaid funds. On the death of any of my sons or daughters aforesaid, the money payable to him or her shall be divided among his or her sons and daughters in the proportions laid down in the Mahomedan law of inheritance. But if any such person die without leaving any son, daughter, son's son, or any other descendant, then the amount payable to him or her shall be credited to the estate.

5. The rest is not material for the purposes of this reference.

6. Paragrap