JUDGMENT
(1) This is a suit filed by two brothers, Yusufally and Yacoobally, sons of Gulamhussein Chhatriwalla, against their cousin Yusufally Cassamally and against the Advocate General of Bombay seeking to obtain reliefs for removal of defendant No. 1 Yusufally Cassamally from his office as a trustee, for accounts, for appointment of a new trustee, for transfering the property in the possession of defendant No. 1 to the new trustee so appointed, and for an order for payment to the plaintiffs a sum of Rs. 5,000, being the amount mentioned in paragraph 8 of the plaint, and other amounts which may be found due to them under the trust deed dated August 19, 1929. The suit was filed with the sanction of the Advocate General under Section 92, Civil P. C.
(2) The averments made in the plaint are these. On August 19, 1929, one Valbai widow of Ladha Lakhamsey created a trust of a property known as Chhatriwalla Building situate at Wadia Street, Tardeo, subject to the powers and provisions contained in the deed of trust.
Under the deed of trust benefit was reserved for various parsons during their lifetime, and directions were given for payment of diverse amounts of money to other persons on the fulfilment of certain conditions. It was also provided that Rs. 25 per month be given as alms to poor “Ishnasari Khoja” widows as the trustees thought proper, and on the anniversary of the death of the settlor and of her husband in each year a sum not exceeding Rs. 75 be spent on each occasion on Majlis ceremonies, and a bequest of Rs. 500 a year was provided for giving ‘dinner’ on the 19th day of Ramzan of each year to the poor of the Khoja community in Bombay at the Khoja Ishnasari Masjid or some other place as the trustees may select. It was further provided under the deed of trust that after the death or remarriage of Kulsumbai (one of the beneficiaries under the deed of trust) the trustees shall, out of the corpus of the trust property, set apart a sum which when invested in authorized securities would yield a net income of about Rs. 1,560 per annum and that the same be spent every year in performing a “majlis” in the name of Imam Hossein and giving ‘a dinner’ to the Khoja Jamat, and the trustees were directed that after the trusts mentioned in Clause (2), Sub-clauses (b), (c), (e), (f), (g) and (h), were fully performed or ceased, they should out of the corpus of the trust property set apart a sum which when invested in authorized securities shall yield a net income sufficient to continue the trusts mentioned in Clause (2), Sub-clauses, (c), (d) and (h), and shall continue to perform such trusts in perpetuity; and if there remained any balance the trustees should divide and pay the same in equal shares among and to the grandsons or the settlor who attained the age of 21 years.
The plaintiffs were beneficiaries under the deed of trust, both under Clause (2) (f) of the deed of trust and under the residuary Clause (4). Inasmuch as benefit was reserved under the deed of trust to charity, and it was claimed that defendant 1 had not acted in accordance with the deed of trust, though he was a trustee, and that he had committed breaches of trust, sanction of the Advocate General to the institution of the suit was asked for and obtained.
(3) On the averments made in the plaint it was obvious that the plaintiffs sought to mix up reliefs which were entirely personal to themselves with reliefs which they claimed as representatives on behalf of charity. Those reliefs could not be joined together in a single suit, and therefore the plaintiffs were called upon to elect to proceed with the reliefs in respect of either their personal rights or those made in a representative capacity.
(4) Mr. S. T. Desai on behalf of the plaintiffs stated that his clients elected to prosecute the suit only with regard to the claim made by them in their representative capacity, and the suit was accordingly proceeded with only in respect of that claim.
(5) Now, defendant 1 has raised various contentions as regards the maintainability of the suit, and on the merits.
(6) In my judgment it is unnecessary to deal with the various contentions raised by defendant 1, because the suit as framed is liable to fail by reason of the absence of necessary parties on record. The defendants have contended in their written statement that by an order dated February 27, 1950, the Court of Small Causes at Bombay, acting under the provisions of the Mussalman Wakf (Bombay Amendment) Act of 1935, has appointed Esmail Abdul Karim Panjoo and Dr. Mehsrally Ahmed as trustees of the ‘wakf’ in so far as provision has been made for the benefit of charity under the deed of trust, and that even though they were appointed trustees nearly a year before the date on which the suit was filed, the plaintiffs have not chosen to implead those trustees as parties to this suit. Assuming for a moment that defendant 1 is and continues to be a trustee of the trust, notwithstanding the order passed by the Court of Small Causes on February 27, 1950, it was obligatory upon the plaintiffs to implead the two trustees appointed by the Court of Small Causes in this suit. Under the provisions of Order XXXI, Rule 2, Civil P. C., in any suit filed against the trustees all the trustees must be joined as parties to the suit. If the trustees are not so joined, the suit is liable to be dismissed.
Mr. S. T. Desai on behalf of the plaintiffs has admitted that the Court of Small Causes has passed the order on February 27, 1950, op-pointing trustees in respect of the ‘wakf’, after hearing the plaintiffs; but his contention is that, notwithstanding that order, the plaintiffs are entitled to prosecute this suit against defendant 1 alone on the ground that the proceedings before the Court of Small Causes were entirely without jurisdiction and his clients were entitled to ignore those proceedings and to ignore the appointment of trustees made by that Court. Mr. S. T. Desai has not stated that his clients desired to join the trustees appointed by the Court of Small Causes, in this suit, after obtaining fresh sanction from the Advocate General.
(7) Under Section 6M, Sub-section (2), Clause (ii) of the Mussalman Wakf (Bombay Amendment) Act, 1935, it is open to the Court exercising jurisdiction under the Mussalman Wakf (Bombay Amendment) Act of 1935 to appoint a new ‘mutawalli’ or trustee, and that jurisdiction of the Court is not denied. But it is argued that, inasmuch as the benefit to charity in respect of which an enquiry was made and ultimately an appointment of the trustees was made was not ‘wakf’ within the meaning of the definition of that expression under Section 2, Clause (e) of the Mussalman Wakf Act, the Court of Small Causes had no jurisdiction to appoint any trustees.
The definition of the expression ‘wakf’ in Clause (e) of Section 2 of the Act is this: ” ‘wakf’ means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman law as religious, pious or charitable, but does not include any wakf, such as is described in section 3 of the Mussalman Wakf Validating Act, 1913, under which any benefit is for the time being claimable “for himself by the person by whom the wakf was created or by any o£ his family or descendants.”
The definition of ‘wakf’ is specially devised for purposes of the Mussalman Wakf Act, XLII of 1923 which is adapted in its application to the Bombay State by the Mussalman Wakf (Bombay Amendment) Act, 1935. It excludes from the purview of the expression ‘wakf’ all private ‘wakfs’, which were validated by the Mussalman Wakf Validating Act of 1913, i.e. ‘wakfs’ under which a settlement of property in accordance with the provisions of Mussalman law for the maintenance and support wholly or partially of the family of the settlor, children or descendants or, if the person creating the ‘wakf’ belonged to the Hanafi School of Mussalman law, for payment of his debts out of the rents and profits out of the property dedicated was made, provided that the ultimate benefit was 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. Under the definition it is necessary that the person who makes a permanent dedication must be a Mussalman, and that the dedication must be for purposes recognised by the Mussalman law as religious, pious or charitable. The expression ‘wakf’ as used in the Act seeks to include substantially all ‘wakfs’ which may be regarded as ‘public wakfs’ for the immediate appropriation to charity as distinguished from ‘wakfs-alal-au-lad’.
(8) Now, it is not denied that the settlor in the present case was a person professing the Mussalman faith. It is also not denied that the purposes for which provision has been made under Clauses (c), (d) and (h) of para. 2 of the trust deed are purposes recognised by the Mussalman law as religious, pious or charitable. But it is argued that the Court of Small Causes had no jurisdiction to appoint trustees, as dedication of property in order to be ‘wakf’ within the meaning of the definition given in Clause (e) of Section 2 of the Act of 1923, must mean dedica-tion of the entire interest of the settlor in the entire property, and that when dedicating is made by a settlor by reservation of a portion of the income of property to be utilized for charitable purposes without any intervening disposition thereof, that dedication does not amount to ‘wakf’ within the definition; and in support of that contention reliance is placed upon a judgment of this Court reported in –‘Abdul Karirn v. Rahimbai’, 48 Bom L R 67. It is argued that if only a part of the income of a property belonging to a settlor is reserved, and the entire income is not diverted to charity, the dedication of a part of the income of the property is not ‘wakf’ within the meaning of the Mussalman Wakf Act, XLII of 1923. I am unable to accept the submission of Mr. S. T. Desai.
The expression ‘property’ as used in the Ac! is not limited by anything, either expressly contained in the statute or by necessary implication involved in the statute, to mean that the total income out of a unit of property must be reserved immediately to charity before it could be deemed to be ‘wakf’ within the meaning of the Act. It is open to a settlor to direct that a part of the income of his property be used immediately for purposes which are regarded by the Mussalman law as religious, pious or charitable and the rest of the benefit may be diverted for purposes which may be temporal, either permanently or for a limited period, with an ultimate benefit to charity. To the extent to which provision is made by immediately dedicating income of property for purposes which are religious, pious or charitable, there results a ‘wakf’ which satisfies the definition in Clause (e) of Section 2 of the Act of 1923.
The judgment of Mr. Justice Chagla, (as he then was), reported in — ‘Abdul Karim v. Rahimbai’, has no application to this case. In that case the settlor, who was a Hanafi Mussulman, executed a deed purporting to create a ‘wakf-alal-aulad’, and under which he directed one-third of the net income of his property after his death to be utilized for certain purposes, which he regarded as charitable (but some of which as found by the Court were not charitable according to the Mussalman law) and distributed the balance of the income amongst his widow and descendants with a provision that on the extinction of the line of any of the descendants the share was to go to charity specified therein. It was held, on a construction of the deed, that the deed of settlement did not create a ‘wakf-alal-aulad’, which could be regarded as valid under the Mussalman Wakf Validating Act, VI of 1913, for substantially two reasons, viz. (1) some of the objects which the settlor regarded as charitable, and for which the trustees were to apply the fund immediately and in the event of the extinction of the branch of any descendant, were not charitable according to the Mussalman law, and (2) that the provision made for the descendants of the settlor was not for their maintenance, but a share of the income was absolutely given to such descendants. No principle can be extracted from that case, which can apply to the construction of Clause (e) of Section 2 of Act XLII of 1923 as adapted by the Mussalman Wakf (Bombay Amendment) Act of 1935. The principle that a ‘wakf-alal-aulad’ is not valid, unless the entire benefit in the property is reserved ultimately to charity, does not support an argument that a public wakf cannot be created by immediate dedication of a part of the income of a property belonging to the settlor, for purposes pious, religious, or charitable. Under the Mussalman Wakf (Validating) Act, VI of 1913, if, after providing for the descendants of the settlor, an ultimate benefit in the entire property is reserved for charity, the ‘wakf’, notwithstanding the immediate provision for the benefit of specified objects, would still be regarded as a ‘wakf’ and would be valid and would not fall within the rule of perpetuity. It was only decided in the case reported in — ‘Abdul Karim v. Rahimabai’, that where the ultimate benefit to charity is not of the entire income but is only of a part of the income, such a provision cannot escape the rule of perpetuity. The case reported in — ‘Abdul Karim v. Rahimabai’ was decided on a construction of the provisions of the Mussalman Wakf Validating Act, VI of 1913, and cannot bo a guide for construing the definition of “wakf” as given in the Act of 1923.
(9) There have been decisions of the Oudh Chief Court, the Calcutta High Court, the Madras High Court and of this Court which support the view that the expression ‘any property’ as used in the Mussalman Wakf Act, XLII of 1923, need not include the entire interest of the settlor in the property, and that it is not necessary that there should be a dedication for charitable, pious or religious purposes of the entire income of the property, before the dedication can be regarded as ‘wakf’ within the meaning of that Act.
(10) In — ‘Tyebhoy Essofalli v. Collector of Ahmedabad’, 45 Bom L R 1055 the Court was concerned with a mixed ‘wakf’, that is one part of the ‘wakf’ was public, inasmuch as provision was. made for immediate dedication of a part of the income of property of the settlor for purposes’ charitable, pious or religious, and for the balance a private ‘wakf’ was created, in that there was provision made for the maintenance of the descendants of the settlor with an ultimate benefit to charity; and it was held that to the extent to which them was a public ‘wakf, by an immediate reservation of benefit for charity, the requirements of Section 2, Clause (e) of the Mussalman Wakf Act, XLII of 1923, as amended by the Mussalman Wakf (Bombay Amendment) Act, XVIII of 1935 were satisfied.
(11) In the case reported in — ‘All Bakhtear v. Khandkar Altaf Hossain’, 60 Cal 790 a division bench of the Calcutta High Court took the view that the provisions of the Mussalman Wakf Act, XLII of 1923, were clearly applicable to a mixed ‘wakf’, that is, one that was partly a public ‘wakf’, devoted entirely to religious purposes, and partly a private ‘wakf’, and an application for an order or the ‘muta-walli’ of such a ‘wakf’ to file a statement of accounts under Section 3 of Act XLII of 1923 lay before the District Judge.
(12) In the case reported in — ‘Kadir Mur-thuza v. Mohammed Murthuza’, AIR 1943 Mad 234 the same view appears to have been accepted by the Madras High Court.
(13) In — ‘Shabbir Husain v. Ashiq Husain’, 4 Luck 429 (FB) it was held that an application, for directions under the Charitable and Religious Trusts Act, 1920, was not maintainable, where the entire benefit under a trust was not reserved to charity, but the application was competent under Section 4 of Act XLII of 1923. It is true that an observation that an application under Section 4 of Act XLII of 1923 was maintainable was not strictly necessary for the purpose of the decision of the case, which was initiated on an application under Section 3 of the Charitable and Religious Trusts Act, 1920.
(14) It is true that in all those decisions, excepting the Oudh Chief Court decision, the settlor had made ‘wakf’ of the entire income, part of it immediately for charitable purposes and the rest for the benefit of the descendants, with an ultimate benefit reserved for charity. Mr. S. T. Desai on behalf of the plaintiff has sought to distinguish the cases on the ground that inasmuch as the entire income of the property ultimately went to charity, the principle of those cases was not applicable to the facts of the present case. Now, referring to the definition contained in Section 2, Clause (e) of the Mussalman Wakf Act, XLII of 1923, it is clear that the definition seeks to exclude all ‘wakfs’ recognised as valid by the Mussalman Wakf Validating Act, VI of 1913. In all the reported eases to which I have referred to the extent to which the income was diverted for purposes which were immediately temporal, though the ultimate benefit was reserved for charity, there was no ‘wakf’ within the meaning of the definition in Section 2, Clause (e) of Act XLII of 1923. In all those cases, therefore, there was no diate dedication of the entire income of the property of the settlor. Notwithstanding that, the Court in each case held that to the extent there was an immediate dedication for purposes charitable, pious or religious, there was a ‘wakf’ which could be administered under the provisions of Act XLII of 1923. When out of the total income of property a part of the income is for the time being directed to be used for non-religious purposes with an ultimate benefit to charity, and the remaining part of the income is directed to be used for charitable, pious or religious purposes, a ‘wakf’ results to the extent to which there is a dedication for the use of the income for religious, pious or charitable purposes, there is no reason why a ‘wakf’ should not result when the income reserved for non-charitable purposes is not directed ultimately to be diverted to charity. Whether a ‘wakf’ results by dedication of a part of the income of property to purposes charitable, pious or religious, does not depend upon the immediate or ultimate destination of the balance of the income. In my view the distinction sought to be made by Mr. S. T. Desai on the facts of the decisions referred to, that in those cases the ultimate benefit of the rest of the income was also reserved for charity does not furnish any justifiable ground for not following the principle underlying them.
(15) In my view, the provisions contained in Clauses (c), (d) and (h) of para. 2 of the trust deed create a ‘wakf’ within the meaning of the Mussalman Wakf Act, XLII of 1923 as amended by Bombay Act XVIII of 1935, and the orders passed by the Court of Small Causes. Bombay, under the provisions of Section 6M of the Act, were within its jurisdiction. The property sought to be administered having vested under the order of the Court of Small Causes in the two trustees, they are necessary parties to the suit; and those trustees not having been joined as parties to this suit, the suit is liable to be dismissed.
(16) On issue No. 2, I therefore hold that Esmail Abdul Karim Panjoo and Dr. Meherally Ahmed are necessary parties to the present suit.
(17) On issue No. 4, I hold that in the absence of the necessary parties, the suit is liable to be dismissed.
(18) The suit will be dismissed with costs, of defendant 1. Defendant 3 has submitted to the orders of the Court. The plaintiffs to pay the costs of defendant 2 between attorney and client.
(19) Notice of motion taken out by the plaintiffs is dismissed with costs.
(20) Suit dismissed.