JUDGMENT Horace Owen Compton Beasley, Kt., C.J.
1. The question in both the Lower Courts was whether two documents (Exs. A and B) created a valid wakf. The trial Judge (the District Munsif) held on the authority of Kaleloola Sahib v. Nuseerudeen Sahib (1894) I.L.R. 18 Mad. 201 : M.L.J. 40 by which case he felt himself bound, that the dedication which Exs. A and B evidence, namely, of properties the income of which is to be devoted to reading the Koran at a private tomb is invalid under the Muhammadan Law; and unless it had been shown that the decision referred to above had been expressly or impliedly overruled or dissented from in later decisions of the Madras High Court, the learned District Munsif was perfectly correct in accepting that position as he states that his attention was not drawn to any such decision. The learned Subordinate Judge, however, has relied upon the opinion expressed by Mr. Ameer Ali in his work on Muhammadan Law, Vol. I, page 351, where the correctness of Kaleloola Sahib v. Nuseerudeen Sahib (1984) I.L.R. 18 Mad. 201 : 5 M.L.J. 40 is questioned. He has also referred to Mazhar Husain Khan v. Abdul Hadi Khan (1911) I.L.R. 33 All. 400 and the opinion there stated (at page 412) of Banerji, J., where in dealing with Kaleloola Sahib v. Nuseerudeen Sahib (1894) I.L.R. 18 M.L.J. 201 : 5 M.L.J. 40 he states:
No authority was referred to by the learned Judges of the Madras High Court for holding a contrary opinion, and I see no reason to accept it. I hold that fateha expenses are a valid object of waqf.
2. This, it seems to us, is a most unfortunate reference since the learned Subordinate Judge omits to observe that Stanley, C.J., who with Banerji, J., formed the Bench in that case, stated in the course of his judgment on page 404:
But as regards the expenses of fateha ceremonies and the salary of Hafiz and readers of the Quran, I am disposed to think that these are not proper objects of wakf.
3. In support of this opinion Stanley, C.J., refers to the view expressed by Karamat Hussain, J., of the same High Court in Fakhr-ud-din Shah v. Kifayat-ul-lah (1910) 7 A.L.J. 1095. We do not propose to refer to those views which are quite sufficiently set out in the judgment of Stanley, C.J., on pages 404 and 405. It is difficult to understand why the learned Subordinate Judge omitted all reference to the views of Stanley, C.J., having regard to the fact that the head-note clearly shows that he had, to say the least, doubts about the matter. It must be observed also that the facts were a good deal stronger there than in the present case. He then refers to Ramanandan Chettiar v. Vava Levvai Marakayar (1916) L.R. 44 I.A. 21 : I.L.R. 40 M.L.J. 16 : 32 M.L.J. 101 (P.C.). There it was held that the test of whether a deed was, or was not, valid as a wakf in the cases decided before Act VI of 1913("Mussalman 'Wakf Validating Act") was that if the effect of the deed was to give the property substantially to charitable uses it would be valid but if the effect of it was to give the property in substance to the settlor's family it would be invalid under Muhammadan Law. In that case the charitable objects were classified under four heads: - (1) cash doles to the poor on the 28th and 29th of the Ramzan month, which among Muhammadans is regarded as a holy month in which giving alms to the poor is enjoined as a duty; (2) distribution of clothes to the poor on those days; (3) distribution of conjee to the poor on a misjed during the thirty days of that month (Ramzan); (4) performance of fatehas on three days of ancestors and feeding of friends and the poor. Their Lordships further point out on page 121 that Act VI of 1913 by Section 3 expressly enacted that it shall be lawful for any person professing the Mussalman faith to create a wakf which in "all other respects is in accordance with the provisions of the Mussalman Law ' for the maintenance and support, wholly or partially, of his family, children or descendants". They add:
It was not contended that this statute affects the present appeal, and the following decisions of this Board, which their Lordships think they are bound to follow, clearly establish that the Muhammadan Law, as "interpreted by the Board, does not treat such a gift per se as a good and valid wakf.
and amongst other cases Mujib-un-nissa v. Abdur Rahim (1900) L.R. 28 I.A. 15 : I.L.R. 23 All. 233 at 242 : 11 M.L.J. 58 (P.C.) and the observations of Lord Robertson in that case at p. 243 are set out. They are as follows:
Their Lordships have, however, considered the question whether even assuming it to have been registered, the deed is, according to its terms, a valid deed of wakf. It will be "so if the effect of the deed is to give the property in substance to charitable uses. It will not be so if the effect is to give the property in substance to the testator's family.
4. It is to be observed that the accuracy of the test laid down by Lord Robertson was not questioned in that appeal. The effect of the decision in Ramanandan Chettiar v. Vava Levvai Marakayar (1916) L.R. 44 I.A. 21 : I.L.R. 40 M.L.J. 116 : 32 M.L.J. 101 (P.C.) is that whereas before the Mussalman "Wakf" Validating Act (VI of 1913) provision for the maintenance and support wholly or partially of the family, children or descendants of a person professing the Mussalman faith would not be a valid object of wakf, that Act validated such a provision and their Lordships were clearly of the opinion that the test laid down by Lord Robertson in the case referred to was the correct one, namely, the charitable purpose or purposes of the endowment. In view of this decision it must be conceded that Kaleloola Sahib v. Nuseerudeen Sahib (1894) I.L.R. 18 M.L.J. 201 : 5 M.L.J. 40 is no longer good law because there the performance of fateha ceremonies was one of the purposes of the dedication. This, however, by no means disposes of the matter, as the learned Subordinate Judge certainly ought to have recognised, because there is an all important distinction between the purposes of the dedication in Kaleloola Sahib v. Nuseerudeen Sahib (1894) I.L.R. 18 Mad. 201 : 5 M.L.J. 40 and the purpose in this case. Here the object of the wakf is to read the Koran over a tomb. The test laid down by Lord Robertson in Mujib-un-nissa v. Abdur Rahim (1900) L.R. 28 I.A. 15 : I.L.R. 23 All. 233 at 243 : 11 M.L.J. 58 (P.C.) when applied to this case clearly makes this dedication invalid because it is not in substance a dedication to charitable use. There is no provision for anything more than reading the Koran at the tomb and no distribution of food or alms among the poor which the fateha ceremony consists of. In Mazhar Husain Khan v. Abdul Hadi Khan (1911) I.L.R. 33 All. 400 there were fateha expenses provided for; similarly in Ramanandan Chettiar v. Vava Levvai Marakayar (1916) L.R. 44 I.A. 21 : I.L.R. 40 Mad. 116 : 32 M.L.J. 101 (P.C.). This important distinction has been overlooked by the learned Subordinate Judge who thinks also that the fact that the tomb over which the Koran is to be read is that of a descendant of the prophet and not that of the donor, makes some difference. He says:
Atta Beevi in whose favour these two documents were executed was the daughter of Syed Hussain Jafri Seyd Alavi Koya Thangal of Kotinhi mosque. A Thangal is supposed to be a direct descendant of the prophet.
5. The District Munsif on the other hand says:
Though Atta Beevi is described as the daughter of a Thangal, there is no evidence on record to show that she was a saintly or even a pious woman.
6. Unless it is to be held that reciting the Koran over the tomb of a Thangal is different from reciting the Koran over the tomb of any other Mussalman - and in support of this view there is no evidence whatsoever--we are quite unable to regard this as a distinguishing feature. But it was contended by Mr. Kuttikrishna Menon that the Mussalman "Wakf" Validating Act (VI of 1913) has effected a change in the law because of Section 3 and the proviso thereto which read as follows:
It shall be lawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of Mussalman law for the following among other purposes:
(a) "for the maintenance and support wholly or partially of his family, children or descendants, and
(b) "where the person creating a wakf is a Hanafi Mussalman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated:
Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character.
7. By reason of the proviso he argues that a wakf will be valid if it is religious and pious only and that it need not be charitable as well because of the words "or charitable" in the proviso. We are unable to agree with this contention. The object of the Act was to declare the rights of Mussalmans to make settlements of property by way of 'wakf in favour of their families, children and descendants and to remove any doubts previously existing regarding the validity of wakfs so created and to include such objects as the latter. In our view, no change in the law was brought about with regard to the' purposes, namely, "religious, pious or charitable". Those purposes had always previously been recognised and this is perfectly clear from the Privy Council decision in Ramanandan Chettiar v. Vava Levvai Marakayar (1916) L.R. 44 I.A. 21 : I.L.R. 40 Mad. 116 : 32 M.L.J. 101 (P.C.) and other cases and it is not right to say that the words "or charitable" really provide an alternative to "religious and pious". On page 124 of Ramanandan Chettiar v. Vava Levvai Marakayar (1916) L.R. 44 I.A. 21 : I.L.R. 40 Mad. 116 : 32 M.L.J. 101 (P.C.) Lord Buckmaster says:
The trustees are, in their Lordships' view, at the least bound so far as the funds under their control will permit, to make such provisions for the other chanties as in the circumstances of the case a pious and charitable Muhammadan would consider reasonable and proper.
8. According to Lord Robertson the test must be the charitable use or uses; and even before Act VI of 1913, the purpose according to the decisions had to be religious or charitable The words then were exactly the same as they are now; and it appears to us that in all cases upon this point the charitable purposes of the gift have always been stressed as the important ones. This question has been considered by myself and Bardswell, J., in O.S. A. No. 71 of 1932 in a judgment delivered on the 19th December, 1933, at present unreported We there held, after an examination of a number of cases some of them relating to wakfs and one of them being Mazhar Husain Khan v. Abdul Hadi Khan (1911) I.L.R. 33 All. 400 before-mentioned, that to create a valid trust for religious purposes there must be now, as there was then, a charitable object and we see no reason whatever for coming to any different conclusion. In our view, it is quite clear that the dedication in question being merely for the purpose of reciting the Koran over a tomb of a private person did not create a valid wakf and that the District Munsif was correct in so holding. It follows that this Second Appeal must be allowed with costs here and in the lower Appellate Court and the order of the District Munsif restored.