ABDUL KARIM ADENWALLA Vs. RAHIMABAI

JUDGEMENT

(1.) The plaintiff has filed the suit for a declaration that the deed of wakf executed by Mahomed Moosa Adenwalla on October 16, 1928, is void and inoperative and that defendants Nos. 1, 2 and 3, who are the present trustees under that deed, hold the properties, the subject-matter of the trust, as trustees for the heirs of the deceased other than Fatmabai and Ebrahim Haji Ahmed Moosa. The wakf which was executed by Haji Ahmed Moosa purports to be wakf-alal-aulad, and what I have to determine is whether it is a good wakf within the meaning of the Mussalman Wakf Validating Act of 1913. The settlor recites his desire of making a wakf-alal-aulad in respect of his two immoveable properties in order to provide himself and his children in the manner provided in the trust deed. He declares that he would be the first mutawalli or trustee under the deed arid then he gives directions as to how. the rents and profits of the two properties are to be distributed. He directs, the trustees first to pay the outgoings and then to pay the net balance of the income of the two properties to the settlor during his life for his absolute use; and then he directs that the trustee or mutawalli who is to come after him should, after his death, set apart twenty-five per cent, of the gross rents of the trust properties to meet expenses of heavy repairs and utilise the balance of the income in the following manner:- (1) one-third share for charitable purposes according to the Mahomedan law which are mentioned specifically in the clauses that follow; (2) one-eighth of the balance to his widow and one-half of the remaining balance to his son Abdul Karim Haji Ahmed and his descendants; (3) one-fourth of the balance to his daughter Rabiabai; and (4) the remaining one-fourth to his daughter Rahimabai and her descendants. The settlor further provides that if there be no descendants of any of his said children, the share of the income should be utilised for the same charitable objects which are subsequently mentioned in the deed and to which reference was made when he set apart one-third share of the balance of his income.

(2.) Then in four clauses the settlor deals with what he considers to be charitable objects tinder the Mahomedan law for which the one-third share of the income has to be expended and for which purpose also the share of the income of any of the line of the descendants which might become extinguished should also be utilised. These four objects are: firstly, the marriage expenses of the persons mentioned in that clause; secondly, a sum of Rs. 200 to be paid every year each to not more than three persons belonging to the family of Moosa or Moosani, which was the family of the settlor, who might be poor and in need of money; thirdly, a sum of Rs. 300 to be spent amongst the Sayyeds and Fakirs every year in the month of Ramzan; and fourthly, a sum of Rs. 1,000 to Rs. 1,200 for feasting Cutchi Memons of his community on the day of his anniversary of his death.

(3.) A wakf-alal-aulad is a method whereby a Mulssalman can make provision for the maintenance and support of his family and descendants. Under ordinary law such a trust would be bad as offending against the law of perpetuity. It is not open to a person to tie up his property in perpetuity and give the income of it to his children and his descendants. But the law has made an exception in the case of Mussalmans, and that exception is to be found in the Mussalman Wakf Validating Act (IV of 1913). That Act makes it lawful for a Mussalman to create a wakf for the maintenance and support wholly or partially of his family, children: or descendants, provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Mahomedan law as a religious, pious or charitable purpose of a permanent character. And Section 4 of that Act goes on to state that no such wakf shall be deemed to be invalid merely because the benefit reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the wakf. Therefore a Mussalman can tie up his property in perpetuity for the maintenance and support of his family, children or descendants provided he makes a provision that the ultimate benefit goes to a charitable object recognised by the Mahomedan law as charitable and the charitable purpose is of a permanent nature. It is open to him to postpone benefit being conferred upon charity till the extinction of all his family and his descendants.