1875 DELROOS BANOO BEGUM V. NAWAB SYUD KHAN. owner entirely divested herself of all interest therein. The Sunni law allows the donor to reserve to himself a certain interest in the endowed property, but under the Shiah law such a reservation absolutely avoids the wakf; see Baillie's Imameea Law, p. 218; ASHGUR ALLY Mafatih, p. 416; and the chapters on wakf in the Irshad-i-Allamah, and the Jama-ush-shattat. Besides, the Shiah law requires that the persons entitled to the benefit of the trust should be distinctly indicated-Tagore Law Lectures for 1874, pp. 467 to 471; 1 Querry, Droit Musulman, pp. 578, 582,-and should not be liable to extinction; see Tagore Law Lectures for 1874, p. 118. In this case if the servants are to be supposed the beneficiaries of the trust, they are liable to extinction; if there are other persons besides them entitled to the benefit of the trust, they are not distinctly indicated. In the case of Syed Khodabundha Khan v. Mussamut Oomutul Fatima (1), it was held that a provision for the lighting of the testator's tomb, and reading of the Koran, could not be regarded as creating an absolute wakf. An imambara of this kind is not a public endowment. Public endowments under the Mahomedan law are sufficiently indicated in Baillie's Imameea Law, p. 215. The Advocate-General, for the respondents.-This is a good wakf: operation was given to it by registration and mutation of names; therefore, the change of possession, which is contemplated by the Mahomedan law, actually took place, and the conditions necessary to constitute a valid wakf have been complied with. The defendant cannot revoke the dedication now--Abul Hassan v. Haji Mohammad Masih Karbalai (2). The fact of her having constituted herself a joint-mutawalli with Jigri Khanum does not vitiate the endowment, for under the Shiah, as well as the Sunni law, a donor can retain the management of the wakf in his own hands-Baillie's Imameea Law, p. 214. The defendant was aware of the contents and effect of the deed; she is precluded therefore from turning round and denying now all her previous statements. The case of Gunga Narain Sircar v. Brindabun Chunder Kur Chowdhry (3) is inapplicable, for there (2) 5 Sel. Rep., 87. (1) S. D. A., 1857, Pt. i., p. 235. 1875 BANOO BEGUM v. NAWAB SYUD KHAN. the conduct, which was held to explain the intention of the donor, DELROOS was contemporaneous. [MITTER, J.-Acts done at or about the time may be taken into consideration.] Yes; but here the ASHGUR ALLY defendant's dealings with the wakf property as proprietor commenced long after the execution of the deed. Besides, it being a voluntary settlement, defendant cannot now set up the plea of fraud or ignorance to avoid the deed. The case of Mussamat Udey Kunwar v. Mussamat Ladu (1) only shows this that a party whom it is attempted to bind by a deed may show that it was intended to be something different from what upon its face it purported to be. The onus was therefore clearly on the defendant to prove that the dedication was a sham, but this onus has not been discharged. The case of Wasiq Uli Khan v. Government (2) is analogous to this. [MITTER, J.-There is another point, whether the plaintiffs could be appointed mutawallis when the Act merely provides for the appointment of a manager.] It does not matter whether the Act applies or not. The defendant has been guilty of misfeasance, and, under the general law of the Mahomedans, she is liable to removal. Munshi Mohammed Yusuff on the same side.--For the purpose of maintaining a suit under Act XX of 1863, it was not necessary for the plaintiffs to show that the imambara was ever under the control of the Board of Revenue-Ganes Sing v. Ramgopal Sing (3). Endowments of imambaras obtain only amongst the Shiahs, to which sect the defendant's family belonged. The Shiah law therefore must be taken to govern this case, and, according to that law, the deed creates a valid and irrevocable wakf-Hidait-oon-nissa v. Syud Afzul Hossein (4). Mr. Ameer Ali in reply.-The cases which have been cited are founded on Sunni law, and have therefore no application to the present case, where the plaintiffs have elected to be governed by the Shiah law. As to the question of the defendant's knowledge of the nature and effect of the deed at the time of execution, the onus was clearly on the plaintiffs, especially when it (1) 6 B. L. R., 283; S. C., 13 Moore's (2) 6 Sel. Rep., 110. I. A., 585. (3) 5 B. L. R., App., 55. (4) 2 N. W. R., 420. 1875 DELROOS BANOO BEGUM v. NAWAB SYUD KHAN. is said that the dedication was in effect a voluntary settlement, which, if held binding, would result in the absolute beggary of the lady-Price v. Price (1). In dealing with cases involving the interests of pardanashin ladies, Courts of justice require the ASHGUR ALLY strictest proof of their knowledge and comprehension of the acts by which they are sought to be bound-Manohar Das v. Bhagabati Dasi (2). The defendant has stated on oath that she was not aware of the nature of the deed until the institution of this suit. No evidence has been given by the plaintiffs to rebut this statement; on the contrary the evidence on their side tends to corroborate defendant's statement. The judgment of the Court was delivered by Cur. adv. vult. GLOVER, J. (who, after stating the facts, continued) :—' -The first point we have to consider is her objection that this was not a case coming under Act XX of 1863, and that the Judge had no jurisdiction to try it. Now Act XX of 1863 was passed, as appears from its preamble, to relieve the Boards of Revenue and local agents of the duties imposed upon them by Regulation XIX of 1810, which Regulation, so far as related to endowments for the support of mosques, Hindu temples, or other religious purposes, was by it repealed. The endowments, &c., referred to in the Act, ss. 3, 4, 5, are declared to be the same as those to which the Regulation of 1810 was applicable, and s. 16 of that Regulation specifies the kind of endowment which should be made subject to its control and supervision. The words of the section are:-" It is to be clearly understood that the object of the present Regulation is solely to provide for the due appropriation of lands granted for public purposes." Was then the tauliatnama executed by Delroos Banoo Begum an appropriation of lands for public purposes, so as to bring it within the purview of Act XX of 1863 ? The Judge says:-"I apprehend that a "I apprehend that a private endowment is one in which the benefits are appropriated wholly or partly to (1) 1 DeG., M. & G., 308. (2) 1 B. L. R., O. C., 28. 1875 DELROOS individuals as distinguished from the general Mahomedan BANDO BEGUM public;" and again :--" The difference between a private and a NAWAB SYUD public endowment is explained in Dalrymple v. Khoondkar ASHGUR ALLY Azeezul Islam (1). Now the terms of the tauliatnama are v. KHAN. not uncertain or ambiguous; the wakf constituted thereby fulfils all the requisite conditions; and the acts of the defendant in registering the deed, in obtaining the transfer of names in the Collector's books, and in managing the property throughout the intervening twenty years under the appellation of mutawalli, sufficiently prove that possession passed from herself as malik to herself and Jigri Khanum as mutawallis. It is clear that a valid wakf once completed cannot be revoked; and it is certainly not open now to the defendant to say that she misunderstood the effect of the words she used, and the acts by which she consummated the wakf. The endowment certainly is a religious establishment within the meaning of Act XX of 1863." I doubt whether Dalrymple v. Khoondkar Azeezul Islam (1) lays down any rule, or gives any explanation as to the difference between public and private endowments for religious purposes. It rather deals with the difference between a mutawalli considered merely as a superintendent of a religious establishment, and one who combines both a personal and an official interest in the endowment, and, when the appropriation has been made partly for religious and partly for secular purposes. A public endowment for religious uses is one which distributes its benefits to all men of all classes professing a defined form of religion: a similar endowment for pious and charitable purposes generally would include all members of the community who chose to avail themselves of the means afforded them by the appropriator; every one would have an equal right to participate, and that at all times and at all seasons. Now what is the case here? The tauliatnama executed by the defendant Delroos Banoo Begum is to the following effect: She begins by saying that she considers it incumbent on her to continue and perpetuate the ceremonies for pious uses such as fatiha, haziri, &c., which she says is the fixed and settled (1) S. D. A., 1858, Pt. i., 586. 1875 DELROOS BANOO BEGUM v. NAWAB SYUD KHAN. usage of her family. She then details the ceremonies, &c., on which the larger part of the income is to be spent: they are the fatihas of Mahomed and of the twelve Imams, the expenses of the first ten days of the Mohurrum and of the holidays, the ASHGUR ALLY repairs of the imambara and of the tombs, by which she means her mother's tomb. Of the rest of the income, part is to be expended in paying and pensioning the servants of the estate (the property was a large one, yielding nearly three quarters of a lakh of rupees annually), and part is to be applied to the mutawallis' own uses. She appoints herself and her sister-inlaw Jigri Khanum joint mutawallis, with power to the survivor, and makes arrangements for the appointment of a superintendent after her death. This document was executed on the 10th of September 1852, at a time, that is, when Regulation XIX of 1810 was in force, and when, according to that Regulation, the superintendence of the endowment, if a public one, would have been vested in the Board of Revenue and Board of Commissioners, who would have been bound to take order that the endowment was duly appropriated to the purpose for which it had been destined. Now it is not contended in this case that any such superintendence was ever exercised by the Boards in question, or that they ever interfered in any way with the appropriation, and this too when the tauliatnama or endowment deed had been publicly registered, and application had been made to the Collector to substitute the names of the mutawallis in his mutation register for the name of the former proprietor. It seems clear from this that the authorities did not, at the time when the endowment was made, consider that it was of a public character coming under the provisions of Regulation XIX. Nor, when Act XX of 1863 was passed, did the Local Government make any special provision under ss. 4 to 7, as contemplated by s. 3 of the Act, which it was bound to have done, had the endowment been one of a public nature and for public purposes coming under the Regulation of 1810: no transfer was made under s. 4 of Act XX of 1863. In short, the defendant was never interfered with under either Act or Regulation. Then as to the wording of the tauliatnama itself. It |