Banerji and Aikman, JJ -
(1.) This is the appeal of the defendant in the suit which gave rise to first appeal No. 187 of 1898, decided by us to-day. The only question which we have to consider in this appeal is, whether a waqf of movable property is valid under the Muhammadan law. The appropriator Fakhr-ud-din included in the deed of waqf executed by him a sum of Rs. 11,000, which he had deposited with a firm in Cawnpore. The deed contains the following provisions in regard to the disposal of the said sum: "Rs. 5,000, out of the endowed sum of Rs. 11,000, will be spent in constructing a mosque with shops at a proper place. The income of the shops will, according to the opinion of the mutawalli (Superintendent), be applied towards the expenses of the said mosque, i,e., on account of Imam (one who leads at prayer) and Muazzin (one who calls for prayer), &c., and the mutawalli will construct a pacca well where it is required. The remaining amount out of the endowed sum of Rs. 11,000 and also the money which may remain after defraying all the aforesaid expenses out (of the income) of the endowed property through the good management of the mutawalli (Superintendent) shall all of it be kept in safe custody; and, it having been accumulated, shall be applied in purchasing proper immovable property, which shall be added to the endowed property. This practice will always continue. The profits of the newly purchased property, as well as the property itself, shall be regarded as endowed property, and shall be applied in charitable and pious purposes recognized by the Muhammadan law as mentioned above, The mutawalli (Superintendent) shall also pay (money) to the Hajis (pilgrims) out of this very income according to his own opinion."
(2.) It was contended on behalf of the plaintiffs that a waqf of such property is wholly void, and this contention has found favour in the Court below. The learned Subordinate Judge, while pointing out that the opinion of the Muhammadan lawyers on this point was not unanimous, followed a ruling of the Calcutta High Court, Fatima Bibee V/s. Ariff Ismailjee Bham (1881) 9 C.L.R. 66. That ruling, no doubt, supports the conclusion arrived it by the learned Subordinate Judge, and, as far as we have been able to ascertain, it is the only reported case on the question which we have to determine.
(3.) The case referred to was one in which shares in two companies at Rangoon had been made the subject of waqf. It was contended that such an endowment was invalid according to Muhammadan law. Wilson, J., in disposing of the plea, made the following observations: "Property of this nature is modern in origin, and the old text can only be applied by way of analogy. But there does not seem to me much difficulty in arriving at a conclusion. Land, according to all the authorities, may be appropriated. And the power has been, it is universally agreed, extended to certain other kinds of property, though the exact degree of the extension is a matter in difference among the authorities. But it is agreed that it does not apply to such things as perish in the using, under which head money appears to be included. And if money cannot be appropriated, it seems to me clear that the possibility of receiving money hereafter in the form of dividends cannot be." He therefore held the waqf to be invalid. The correctness of this ruling has been questioned by Mr. Justice Ameer Ali, in his work on Muhammadan law, p. 271, 2nd edition, where he remarks, after setting forth the authorities of Muhammadan law on the subject, that these authorities were evidently not pointed out to the learned Judge who decided the case of Fatima Bibee V/s. Ariff Ismailjee Bham. The Learned Counsel on both sides have addressed to us very able and erudite arguments, and have brought to our attention a number of authorities of Muhammadan law in addition to those referred to in Mr. Justice Ameer Ali's book. We have carefully considered those authorities. The conflict between them is bewildering. Some assert that such an endowment as the present is absolutely void; others, that it is valid when customary; and others again--and these are in the majority--that it is valid without any restriction. Not only is there a conflict between different jurists, but we find different and irreconcilable opinions attributed to the same jurists by different commentators. On page 267 of his Digest of Anglo-Muhammadan Law, Sir Roland Wilson observes: "Authorities are conflicting as to money . . ., but the better opinion seems to be that it can be appropriated." After a long and careful consideration of the texts we have arrived at the same conclusion. Under the Muhammadan law, perpetuity is a necessary condition of a valid waqf: in other words, such things as perish in the using (to use Mr, Justice Wilson's expression), cannot be appropriated. Some of the Muhammadan authorities were of opinion that a condition of perpetuity could not attach to money, and that consequently money could not form the subject of a valid waqf. Others again, such as Zafar, held that no such objection could be offered to a waqf of money. We quote the following passage from Fatwa Qazi Khan, which is pronounced by Morley to be a work of equal authority with the Hidaya: "It is related from Zafar that if a man should make a waqf of dirhams it would be lawful. On being questioned how that could be, he replied that the dirhams could be given in Muzarihat (partnership in which one partner supplies capital, and the other labour), and the usufruct thereof be devoted to the purposes of the waqf." (Fatwa Qazi Khan, Volume IV, p. 309). The same appears to have been the opinion of Zuhri, as will appear from the following extract from the book Umdat-ul-Kari, a commentary on Sahib-ul-Bukhari by Allama Aini, Volume VI, p. 516: "Zuhri was asked whether a man who, having dedicated a thousand dinars in the way of God, made them over to his slave, a tradesman, for investment in some trade, and who made the usufruct thereof a sadaka (charity) to the poor, and to the relatives, could lawfully eat anything out of the usufruct of the said thousand (dinars), even if the usufruct had not been given in charity to the poor, he replied that he could not eat anything out of it." The author of Durri-Mukhtar was also of the same opinion, as the following extract shows: "And, as is also valid the waqf (appropriation) of every movable designedly made, in which it is customary among the people like spades and axes , but also dirhams and dinars. I say that an order was, on the other hand, issued to the Qazis (Judges) to give orders for it, i.e., for the waqf of dirhams and Mnars, as is mentioned in the maruzat of Mufti Abu Sand.";