Leach, C.J.

1. This appeal raises important questions of law, in the first place with regard to the testamentary capacity of Cutchi Memons before the passing of the Cutchi Memons Act, 1938, and in the second place with regard to the validity of a wakf which a Cutchi Memon by his will directed should be endowed by the property forming the residue of his estate. The appeal arises out of two suits filed on the original side of this Court for the administration of the estate of Hajee Sir Ismail Sait, a wealthy Mussalman of the Hanafi sect and a member of the Cutchi Memon community, who died in Bangalore on 24th April 1934. He had eight children, seven of whom survived him, as did their mother. He left a will and a codicil there-to, both of which have been admitted to pro-bate by this Court. On 6th December 1939, two of the testators grandsons, sons of his eldest, son, filed C. S. No. 280 of 1939 for the administration of the estate in accordance with the testamentary directions given by their grandfather. On 16th December 1939, his third son filed C. S. No. 286 of 1939 for the administration of the estate on the basis that the will was invalid. The two suits were tried together by Somayya J. and this appeal is from his judgment. The relationship between the parties will be gathered from the following genealogical tree.

DAN BAI | Hajee Salai Mohamed Sait (d. 1874)=Khatija Bai | ---------------------------------------------------------- | | | | Sir Hajee Ismail Sait (d. 24-4-1934) Hajee Mappi Sait Fathima Bai Zynubi Bi = Ayesha Bai (d. 1936) (died issueless) | -------------------------------------------------------------------------------- | | | | | | | | Abdul Sattar Amina Bai Yoonus Sait Hamid Sait Sofia Bi Dada Sait Ahmed Infant Sait (deft. 1) (deft. 4) (d. 16-11-39) (plaintiff (died before (deft. 2) (d. 1940) son who | | =Hathima Bi in C.S. testator) | (deft. 3) died before Defts. 6 to 12 Alli Md. (deft. 5) 286/39) | Defts. 14 to 17 | testator Sait (deft. 18) | Defts. 19 to 21 | | | Sulaiman Sait (deft. 13) | | ------------------------------ | | Ismail Ahmed Sait Marium Ahmad Sait (deft. 28) . (Mary Olive) (deft. 29).

2. The descriptions are those of the parties to the second suit, all of whom were all the parties to the first suit. Admittedly the properties left by the testator had been acquired by him as the result of his own exertions. His will is dated 19th March 1934. He made specific bequests of immovable property to various religious, pious and charitable institutions and a sum not exceeding Rs. 25,000 for the erection on the lands of the Jamna Musjid in the old Poor House Road, Bangalore, of shops and business premises, which were to constitute an additional endowment of this mosque. After making bequests of moveable property to various members of his family and provision for the maintenance and education of his grandchildren, he gave these directions (clause 15):

Whereas with the object of attaining nearness to God and reward in the world to come I am desirous of making wakf of all the rest residue and remainder of my estate in the hands of my trustees not hereinbefore or by any codicil specifically disposed of or dealt with and after my trustees shall have set apart thereout sufficient to provide for the payments hereinbefore directed to be made such wakf is hereinafter called the wakf estate and shall for all time after my death be known as the wakf estate of Hajee Sir Ismail Sait of Bangalore for the education, maintenance, marriage, support and other expenses of all my grandchildren now born or to be born and their descendants both male and female from generation to generation in proportion to their respective shares in my estate if the devolution thereof had been governed by the Mohamedan law applicable to the Hanafi sect in case of intestacy.

In clause 21 of the will the testator made provision for the application of the income of the wakf estate in the event of his family becoming extinct. The clause reads as