BANUBI UMARSAHEB Vs. NARSINGRAO RANOJIRAO

JUDGEMENT

(1.) One difficulty occasioned by the form of the suit which was not apparently before the mind of the learned trying Judge is this : Touching the house which the deceased is alleged to have given to the Masjid the suit is in ejectment and therefore the persons, if any, in actual possession need to be joined as parties. This was not done. Without expressing any opinion as to whether this was a true and valid wakf, it is clear that in respect of this relief the claim fails. Neglecting some other difficulties which might be similarly occasioned and confining ourselves to what is substantially in controversy, there remain two principal points.

(2.) First of the wakf of Rs. 7,000. The plaintiffs case is that this was not a valid wakf. But if it was, it was created by will or on the death-bed and in such case it could not extend to more than 1/3 of the wakif's estate. We are very sensible of the care and ability with which the entire question has been examined by the learned Judge below. His judgment, though we find it unnecessary to deal fully with all its contents, is a very able and instructive contribution to the case-law on the subjects of which it treats. But for the purpose of disposing of this appeal it will be sufficient to confine our observations within a small compass. It is virtually admitted that apart from expressions to be found in the will itself there was no declaration of the wakf of Rs. 7,000 out of the testator's profits or shares in the partnership concern. Nor of course was there any actual delivery. Thus the questions are:-(1) Whether a wakf can be validly created by a purely mental act ? (2) Whether, if not, actual delivery is necessary ? (3) Whether the statement in the will is a good declaration, and, if so, whether it can be referred back to a prior mental resolve so as to bring the wakf into being from the date of the latter ? (4) Whether property of the kind which the will describes as constituting this wakf can properly and legally be so dedicated ? And, last, there is the most important practical question of all, (5) whether in fact the evidence proves that apart from the statement in the will, there had been any dedication of the Rs. 7,000 to the charity ?

(3.) It has been strenuously contended on behalf of the respondents that a more intention to set apart property for charitable purposes, followed by actual appropriation (as in the case of a definite sum of money, by applying the interest to the intended purpose), is quite sufficient to create a wakf. No authority as far as we know goes that length. The passages most strongly relied on by the respondents are taken out of Amir Ali's Text Book ; but even supposing this is good authority, we do not find the learned writer anywhere saying that a mere mental act, unaccompanied by any form of explanatory words, will do ; all that he says is that it is not necessary, while stating the object of the dedication, to say explicitly that it is "wakf." Some statement apparently there must be and this is quite consistent with the objectivity of archaic systems and the prominence given in them to ceremonial formula and illustrative acts or words-It may be difficult to discover any good reason why saying in the market place or in the presence of one or more hearers "I sot apart Rs. 7,000 for the endowment of my new school and will henceforth apply the income to that purpose" even although the wakif should never in fact set apart the corpus or apply a penny of the income, does, while actually sotting apart the corpus and applying the income to the contemplated charity, because unaccompanied by a verbal statement, does not create a valid wakf. But in trying to administer branches of law which have come down to us from remote times and primitive societies it does not do to insist too much on a modern reason for every rule. We must, we feel, keep as close as we can to such authorities as are available for our guidance; and not one of these supports the proposition that a mental act although afterwards sufficiently expressed in conduct, will, unless clothed in appro priate words, create a wakf.