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1921 (3) TMI 1 - BOMBAY HIGH COURT

1921 (3) TMI 1 - BOMBAY HIGH COURT - 84 Ind Cas 759 - Dated:- 19-3-1921 - Marten, J. JUDGMENT Marten, J. 1. This is a suit by the Advocate-General ex officio to establish certain charities in the community of the Dawoodi Borahs, who are Shiah Muhamadans of the Mustaalian Branch of the Ismaili sect. The principal defendant is defendant No. 3, His Holiness the Mullaji Saheb, who is the High Priest and Dai or head of the community. Defendants No. 1 and 2 merely claim to be his managers or agents an .....

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the offerings placed there in a gulla or offertory box, (c) four immoveable properties purchased out of the surplus gulla funds, and (d) Badri Mahal, the Bombay residence of the Mullaji Saheb, which is alleged by the plaintiff to have been partly acquired by the aid of the gulla funds. 4. His Lordship dealt with the respective positions of the. Advocate-General and the Attorney-General, in charity matters and also set out the pleadings and issues and then proceeded to observe as follows. 5. At .....

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egards the choitee of charitable objects for the surplus gulla funds, and that educational objects should be selected by the Court, was, I think, abandoned during the concluding stages of the trial. The plaintiff does not now seek to have trustees appointed or to deprive the Mullaji of his management of the suit properties. In particular it is not alleged that there has been any misapplication of the gulla funds apart from a technical question as regards Badri Mahal, nor that there has been any .....

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his successors, in office may, from time to time, select. An account of the gulla funds expended in connection with Badri Mahal is asked for. 7. As regards the fourth of the above objects, no question arises in this case and it has only been occasionally mentioned. This feast has been regularly held in honour of Ali in the sacred month of Ramzan, and paid for out of, the gulla funds. The defendants do not contend that either this feast, or another feast which has occasionally been held on the bi .....

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Mullaji Saheb, the spiritual kingdom of the Dawoodi Borahs and their general affairs." Its approximate meaning is also conveyed by the expression "the administration" and has been so understood at the trial. The defendants further say that the Mullaji Saheb holds the suit properties by virtue of his office as Dai or head of the community, and that on his death these properties will pass to his successor-in-office, and not to his heirs. They, however, contend that there is no char .....

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bound to obey him implicitly and cannot question any act of his that he is entitled to take any property, from his followers, whether trust or private property, and if the former, to alter and cancel the trusts and that there can be no such thing in the Dawoodi Borah community as a permanent irrevocable charitable trust, and that it makes no difference in this respect whether the trust purports to be established by deed or by a scheme of the Court. Defendants Counsel, however, are not prepared t .....

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(b) his mastership of all property, whether dawat or otherwise, Infallibility they say is inconsistent with accountability as a trustee. Mastership is equally inconsistent with trusteeship. He is malek or dhdni, so their witnesses say. That means absolute owner. The gulla offerings are given to him as such malek. To hold, therefore, that he is a trustee would be to defeat the intentions of the donors. So too it is for him to say what are the purposes of the dawat. No one can say him nay. 10. Th .....

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well as charitable objects, there can be no charitable trust. Alternatively they say that the gulla is governed by the law as it stood before the Mussalman Wakf Validating Act, 1913, and that under that law and the Bombay decisions on the subject there could be no wakf of money or other moveable property. Further, if the offerings are regarded as gifts by way of sadakah, such gifts are too vague to constitute a charitable gift. 11. In the earliar stages of the trial, it was contended by defenda .....

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regular succession. If that is not so, they say the Mullaji has no exceptional powers, and the religion is at an end. This is because according to their religion no Dai can die without appointing a successor. Curiously enough the defendants did not expressly plead that the Mullaji Saheb was Dai-ul-Mutlak. They, however, mentioned this title in Issue No. 12A and on August 31, 1920 I gave them liberty to amend their pleadings in this respect. Subsequently, on September 20, I overruled an objection .....

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by the defendants to be a forgery. The plaintiff also relies by way of corroboration on a case for opinion of Counsel in April 1895 (Ex. E.O.) This was put in at a late stage, after argument as to its admissibility. 14. In his final address to the Court, the Advocate-General suggested that it was unnecessary for the Court to decide this point. It is at any rate a separate point and I will deal with it later. Meanwhile I will assume that the Mullaji Saheb is, or is considered to be Dai-ul-Mutlak. .....

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ting and hated by the regular Sunnis and other Mussalmans not of the Daudi sect, their reverence for Ali and their high priest seems to be further removed from adoration than among the Khojahs." At page 31 it is said that "Daudi customs do not, so far as has been ascertained, differ from those of ordinary Mussalmans," except for the specific instances there mentioned, such as the ruka laid in a dead man's hands. (See Ex. 11 and Notes, pages 188-89.) At page 33 it is said: &quo .....

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r, seems to make slow progress among them notwithstanding that the field would seem to be a promising one, and I was impressed by the higher intelligence shown by educated witnesses, such as Nos. 15, 19, 28, 33, 35 and 40, over certain other witnesses for the defence who had not received the same advantages. I was also impressed by the scrupulous neatness and care shown in the dress of most Dawoodis attending Court, and also by their patience and quiet in the discomfort of what was at times an o .....

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rding to the pamphlet Ex. A.L. (page 2) "the founder of this line was Ali, son of Muhammad Solaihi, a missionary sent by Ulmustansir, the 8th Fatimite Khaliph of Egypt (who reigned towards the end of the tenth century of the Christian era or fifth of the Hijri), to Yemen with the, double object to preach the Shia faith of the Egyptian dynasty and to rule over the country. He sent several deputies to Sindh and Gujarat to teach religion to the Shias of his faith and to get proselytes among th .....

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death of this 18th Imam that the break occurred which now divides the Borahs from the Khojas. The Borahs followed the younger son Mustaali,and the Khojas the other son Nazar, and hence arose the two branches of the Ismaili sect known as the Mustaalians and the Nazarians. (See Campbell, page 30, note 1.) The Ismaili sect in its turn had arisen from a disputed succession at the death of the 5th Imam, about 765 A.D., they following Ismail, the son of the 5th Imam's eldest son, in preference to .....

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Hence arose the name Dawoodi Borahs. They are however, sometimes called Tyebis after Tyeb the 21st and last revealed Imam. An important event in the history of the Borahs occurred about 1539 A.D. when the seat of their High Priest was removed from Yemen in Arabia to Gujarat. For the last 155 years or so this seat has been established at Surat. It had previously, been at Sidh-pur, Ahamadabad, Jamnagar, Mandvi, Uj-jain and Burahnpur. (See Campbell, pages 27 and 31.). 21. It is also important to b .....

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ndia had no hand in the ruling of the country on account of their exclusively religious calling they had taken no share in the political events and their names never appeared in any of the Indian histories. 22. In this connection I may also refer to the evidence taken in camera. It would, however, appear from page.5 of this pamphlet, Ex. A.L., that at one time the Dai and his followers possessed certain extra territorial privileges granted by the Maharajas Holkar and Scindhia. 23. But in fact th .....

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, or otherwise interfere with, a Dawoodi Borah Judge or Magistrate. He goes even further when he says that if necessary he would enforce his powers as Mullaji in the ordinary Courts of Law, supposing any member of the community resisted him. 24. The official position of the Mullaji Saheb is thus described in Campbell's Bombay Gazetteer at page 31: Their leader, both in things religious and social, is the head Mulla of Surat. The ruling Mulla names his successor generally but it is said not a .....

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ated them all. 26. To appreciate the high position which the Mullaji occupies in the estimation of his followers, one must understand the nature of the spiritual mission claimed for him. One leading tenet of the Dawoodi Borah faith is that God has always had and still has a representative on earth through whom His Commands are conveyed to His people. That representative is called an Imam. The early Imams were the major Prophets Adam, Noah, Abraham, Moses, and Our Lord Jesus Christ. There were al .....

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n the tragic deaths of Hassan and Husein came a succession of revealed Imams, the last of whom was Tyeb, the 21st Imam, who succeeded in 1131 A.D. when a child and afterwards went into seclusion. Since that time there has been no revealed Imam, but the belief is that some successor of the 21st Imam is always on earth and that one day the Imam of the time will, reveal himself. Meanwhile the Imam of the time must in his turn act through a representative, and that representative is the Dai-ul-Mutla .....

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difference in rank between the Imam and his Dai. In like manner one might argue as to what difference exists between a trustee and a quasi trustee. 29. When the Imam comes out of seclusion, these powers of the Dai will immediately cease. Meanwhile the Imam has a staff of 26 in seclusion with him. viz., the Bab (the chief of the Imam's staff); 25 Hujjats, 12 of whom are with the Imam and 12 in charge of the different districts, and the Dai-ul-Balagah. If the Imam was revealed the Dai-ul-Mutl .....

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who those descendants are, so, too, the Dai on earth cannot die without appointing a successor. 32. Another tenet put forward by the defendants is a chain of intercession with the Almighty. This can only be through the Dai, the Imam and the Holy Prophet, If the intercession is-sought by or by the aid of the deceased person, such as, Seth Chandabhoy, then it is said that the intercession can only reach the Almighty through the Dai and the Imam of the time of such deceased person. Thus it would b .....

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of belief, and that though its details may be esoteric and known only to a few, its essentials are dealt with in. periodical sermons, to the people. 34. On this particular point the evidence was mainly oral, but on the main points a large quantity of religious texts and writing were put in by the parties. The interpretations of certain texts or the deductions to be drawn from them, varied as one might expect from theologians, but on the broad general principles, of the faith, as above described .....

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eaker. The community looks upon this document as sacred and secret so I will not cite its exact terms, but I may note in passing that at times it may be the duty of the follower to conceal the truth as to his religion. Probably this is due to persecution in days before the British Rule. I notice that in the Aga Khan case 12 B.H.C.R. 323 a similar practice was found to exist among the Khojas. It is called Takiat. I may note, too, that, in weighing, evidence one must bear in mind the doctrine of i .....

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to be ninety years old. 36. I have now said enough to show that the Mullaji's religious position is so high that it only causes confusion and perhaps injury to overstate it as his Counsel did. It is incorrect to say that the Mullaji Saheb is in effect God, or for all practical purposes God, and that it is a sacrilege to bring the present suit. This is, I think, opposed to the leading tenet of the Muhammadan faith which is known to educated people all the world over, viz., "There is but .....

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rank comes below that of the Imam and the Hujjat. His powers are at least thrice delegated, viz., by God to Muhammad, by Muhammad to the Imam, and by the Imam to the Dai-ul-Mutlak. It is sufficient to say that the holder of such powers is masoom or kul-masoom. To go further is to expose him to the criticism of Mr. Justice Arnould in the Aga Khan case 12 B.H.C.R. 323 where that learned Judge says: "Spiritual heads of communities are not generally remarkable for the modesty with which they s .....

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ullaji's claim to be the owner and master of all property possessed by any Dawoodi Borah, and to be also the master of their minds, bodies, and souls. Defendant No. 1, who was the first follower to be cross-examined on this point, agreed with this claim, and stated that he held the whole of his property at the disposal of the Mullaji. A little later, he said: The Mullaji is the owner and master of the community. Everything is vested in the Mullaji. We are only working as his mehtas and clerk .....

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religious books in this community are: (1) The Koran, (2) the Hadees or sayings and doings of the Holy Prophet. Muhammad, and (3) the Nehjul Balagh or sayings and doings of Ali. In none of this is the claim which the Mullaji now makes specifically put forward. His Counsel admitted that he had no religious authority to show in precise words that the Mullaji could take away trust property under a deed, Will, or scheme. That text in the-Koran which was principally relied on was the one which says: .....

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elation between God and the faithful was that of seller and purchaser. Stress was also laid on the covenant with Allah (page 984, verse, 10), which is now exemplified in the ceremoney accompanying the taking of the meshak. Or again it was said that there is a rope connecting Allah and his Dai on earth and that all believers must through the help of the Dal, cling to the rope and so gain salvation. 41. I have been through all the other religious writings which were cited, but it is impracticable .....

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itigation, Ex. E.J., and the written statement of the 49th Dai, Ex. E. 13, and was asked whether it was true or false when the 49th Dai said that he had not the slightest interest in the property, the witness replied: "In a wordly sense he had no interest and therefore, his statement was correct. 42. This Surat litigation will re-pay careful study, for to my mind the attitude then taken up by the 49th Dai is totally inconsistent with the claims now put forward by his son the present Mullaji .....

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te expressly. The trial of this suit in 1920 would seem to be the first occasion, whereas the first Dai came to the gadi, in 1137 A.D. The defendants own witnesses make it clear in cross-examination that these claims are at best purely theoretical and that in fact they never have been exercised and never would be exercised. Possibly these claims owe their origin to legends of the days when the Dais as Sultans of Yemen had sovereign, independent rights. But, as I have already pointed out, these d .....

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n of such a point having ever been raised as regards the private property of Dawoodi Borahs. The inference which I draw from all the facts before me is that these claims are the; result of the stress of the present suit, and that, if they ever existed, before the trial, nobody regarded them seriously or as giving any legal rights. 45. The Dawoodi Borah Charity Suits, Exs. B.N. to B.T., which the Advocate-General has put in, all tend to support this, inference. Hitherto, nobody has ever suggested .....

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consideration. But before considering the law, I will continue dealing with the more material facts. 47. His Lordship discussed the facts and then proceeded as follows. 48. I next turn to the law. The first question is what law ought to be applied. Speaking in general terms and without attempting any definition, I think that this suit ought to be decided in accordance with Shiah Muhammadan Law in so far as the same is applicable to this community, and is not expressly or impliedly negatived by t .....

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brought against inhabitants of these cities, respectively. I think, therefore, that under Clouse 28 of the Supreme Court I Charter, 1823, I have to decide this case according to "justice and right," or alternatively that I must administer "justice" in accordance with the equitable jurisdiction given in Clause 36 as modified by subsequent legislation. This seems to be the conjoint effect of Section 130 of the Government of India Act, 1915, Sections 8, 9 and 11 of the Indian H .....

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tions raised in a Muhammadan community relating to a Muhammadan mosque and tomb. In the mofussils of Bengal and Madras, it is specifically provided by Section 37 of Act I of, 1887 and Section 16 of the Madras Civil Courts Act, I of 1873, respectively, that all questions relating to "any religious usage or institution" should be decided by Muhammadan Law where the parties are Muham-madans. Similar legislative provisions exist in the United Provinces and Burma. With these legislative pre .....

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decisions. Defendants counsel say that their law is to be found in their religious books and writings and that they have no other. That law and religion are mixed up together in the Muhammadan communities no doubt is true: Abul Fata Mahomed Ishak v. Rasamaya Dhur Chowdhri 22 I.A. 76 at P. 86 : 22 C. 619 : 6 Sar. P.C.J. 572 : 11 Ind. Dec. (N.S.) 412. The religious books are valuable, therefore, so far as they go, but they do not solve all the points I have to deal with here. I must, therefore, go .....

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s, and also the Mortmain Acts. I think I may accept this as a broad working proposition for the purpose of the present case. Indeed in some respects I think that English Law is more favourable to the defendants than Muhammadan Law, for English Law seems to me the more exacting law of the two in its requirements as to what constitutes in law a charity. 53. Under Muhammadan Law, a gift for charity may take two forms, viz., either by way of wakf, which signifies an endowment, or else by way of sada .....

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definition is none-the-less useful. In Hamilton's Hidaya, page 231, wakf is said to be "the appropriation of any particular article in such a manner as subjects it to the rules of divine property whence the proprietor's right to it is extinguished and it becomes a property of God by the advantage resulting to his creatures. 55. In Bailie's Muhammadan Law, page 550, wakf is defined as: "the detention of a thing in the implied ownership of Almighty God in such a manner that i .....

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ly so with the view of Mr. Ameer Ali that the principle laid down in Moriee v. Bishop of Durham (1805) 10 Ves. 522 at p. 539 : 7 R.R. 232 : 32 E.R. 947 is not applicable to trusts or consecrations under Muhammadan Law. (See Wilson, pages 363-364, note 2). The peculiarties of the Shiali Law in relation to gifts and wakf are set out in Wilson, pages 477-485. They do not seem to be of any particular importance in the present case. Or if I turn to Section 92 of the C.P.C, I find that section applies .....

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a trust. See Moosabhai v. Yacoobbhai 29 B. 267 at p. 275 : 7 Bom. L.R. 45 and Sadik Hasain Khan v. Hashim Ali Khan 36 Ind. Cas. 101 : 43 I.A. 212 at P. 221 : 18 Bom. L.R. 1037 : 31 M.L.J. 607 : 14 A.L.J. 1248 : 19 O.C. 192 : 21 C.W.N. 130 : (1916) 2 M.W.N. 577 ; 21 M.L.T. 40 : 38 A. 627 : 1 P.L.W. 157 : 4 C.L.J. 22 ; 25 C.L.J. 333 : 6 L.W. 378 : 10 Bur. L.T. 140 (P.C) both of which were Shia cases. 60. As to what constitutes a charity in English Law one of the oldest statements-I will not treat .....

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: 65 L.T. 621 : 55 J.P. 805 where he says: No doubt the popular meaning of the words charity' and 'charitable' does not coincide with their legal meaning.... No one as yet has succeeded in defining the popular meaning of the word 'charity'...'Charity' in its legal sense comprises four principal divisions trusts for the relief of poverty; trusts for the advancement of education trusts for the advancement of religion and trusts for other purposes beneficial to the comm .....

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divisions, it does not follow that every thing which cornea within any one of them must be a charity. Thus some purposes of general public utility may not be charitable. See In re Nottage (10) where the gift was to encourage yacht racing. Accordingly, under English Law, a gift for religious purposes, simpliciter, is prima facie charitable. See In re Macduff (1896) 2 Ch. 451 at p. 466 : 65 L.J. Ch. 700 : 74 L.T. 708 : 45 W.R. 154 and Dunne v. Byrne (1912) A.C. 407 at p. 411 : 81 L.J.P.C. 202 : 1 .....

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run on fine lines and perhaps unavoidably so, and in Dunne v. Byrne (1912) A.C. 407 at p. 411 : 81 L.J.P.C. 202 : 106 L.T. 394 : 55 S.J. 324 : 28 T.L.R. 257 a gift for the "good of religion" in a diocese was held not to be identical with the expression "for religious purposes," and was accordingly held void. 62. As instances of specific religious purposes, I may mention that gifts for the worship of God [see Attorney General v. Pearson (1817) 3 Mer. 353 at p. 409 : 17 R.R. 1 .....

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1886) 33 Ch. D. 187 at P. 191 :55 L.T. 547 : 35 W.R. 104 : 51 J.P. 70 Yeap Cheah Neo v. Ong Cheng Neo (1875) 6 P.C. 381 at PP 394 : 396. See also In re Davies (1915) I Ch. 543 : 84 L.J. Ch. 493 : 13 L.G.R. 437 : 59 S.J. 413 at. 63. Again, if one finds that the distribution of a gift is to be made by persons in succession as holders of a particular religious or charitable office that goes far to establish and it may be, goes sufficiently far to establish that the whole gift is charitable. Per Lor .....

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t to them as individuals. 64. So, too, in In re Garrard (1907) 1 Ch. 382 : 76 l Ch. 593 : 54 W.R. 91 : 21 T.L.R. 256 a legacy to a Vicar and Church Wardens of a parish to be applied by them in such manner as they should think fit was held to be a good charitable gift for ecclesiastical purposes in the parish. It was clear, said Mr. Justice Joyce, "that a legacy to the Vicar for the time being of a parish is a charitable gift for the benefit of the parish for ecclesiastical purposes." T .....

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held that a trust of property in favour of a parish or the parishioners of a parish for ever can only be Upheld on the ground of its being a charitable trust except perhaps in the case of an advowson. In In re St. Stephens', In re Coleman Street (1888) 39 Ch. D. 492 at P. 505 : 57 L.J. Ch. 917 : 59 L.T. 393 : 36 W.R. 837 Mr. Justice Kay held that an advowson was no exception from the general law as "to charitable trusts, and that both the suit advowsons were held in trust for charity. .....

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nevolent" or "charitable or philanthropic" or "charitable, or pious" purposes) or where the description includes purposes which may or may not be charitable (such as "undertakings of public utility") and a discretion is vested in the trustees, the whole gift fails for uncertainty. Per Lord Davev in Hunter v. Attorney-General (1899) A.C. 309 at P. 323 : 68 L.J. Ch. 449 : 47 W.R. 673 : 80 L.T. 732 : 15 T.L.R. 384. 67. Accordingly the following gifts have been hel .....

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philanthropic purposes" In re Macduff (1896) 2 Ch. 451 at. P. 466 : 65 L.J. Ch. 700 : 74 L.T. 706 : 45 W.R. 154 and for "public, benevolent, or charitable purposes" Houston v. Burns (1918) A.C. 337 : 87 L.J.P.C. 99 : 118 L.T. 462 34 T.L.R. It is this line, of authority which makes me think that English Law is stricter, than Muhammadan Law. The Wakf Validating Act, 1913. refers to "religious, pious, or charitable" purposes. Even Section 92 of the, C.P.C. speaks of "p .....

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tional, or other institutions of the town of Kendal, and also for such other general purposes for the benefit of the town of Kendal or any of the inhabitants thereof as the trustees shall think fit." It was held by Mr. Justice Swinfen Eady that the purposes to which the money could be applied were all limited to general or public purposes for the benefit of the town and its inhabitants, and, therefore, it was a good charitable gift. 69. The learned Judge cited several cases in support of hi .....

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aritable bequest within all the authorities. In Goodman Saltash Corporation (1882) 7 App. Cas. 633 at P. 642 : 52 L.J.Q.B. 193 : 48 L.T. 239 : 31 W.R. 293 : 47 J.P. 376 which was a fishery case, Lord Selborne said: A gift subject to a condition or trust for the benefit of the inhabitants of a parish or town, or of any particular class of such inhabitants, is (as I understand the law) a charitable trust. Lord Cairns said (at p. 650,) Such a condition would create that which in the very wide langu .....

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st, it will be free from any obnoxiousness to the rule with regard to perpetuities. It is a principle which has been established in many cases. 70. I put it to Mr. Inverarity whether the principle of In re Allen (1905) 2 Ch. 400 : 74 Ch. 593 : 54 W.R. 91 : 21 T.L.R. 662 : 93 L.T. 597 and these other cases applied to a community, such as the Dawoodi Borahs, although the community was not confined to one town. He replied that you must first find that there is a gift here for the benefit of the who .....

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ole Muhammadan congregation of the Island" of Mauritius. The first two properties purchased were declared to be devoted to no other uses than the erection of a building consecrated to the Muhammadan worship. On them a small mosque was erected. Subsequently other adjoining properties were purchased for the whbleMuhammadan community. (See pages 532-83). Later on "disputes arose between the Cutchi Memons and the Halai Memons, and the Soortees" (Surat emigrants) due to an attempt by t .....

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and under such conditions as the public authority" should deem necessary to impose. (See page 536.) This case is of course distinguishable from the present but, so far as it goes, it upholds the validity of an assurance in perpetuity for the" benefit of a community like the Dawoodis apart from special laws. 71. On the other side of the line and a showing the limits to the above exception, I may refer to In re Drummond (1914) 2 Ch. 90 at P. 96 : 83 L.J. Ch. 817 : 111 L.T. 56 : 58 S.J. .....

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ction 92 of the C.P.C. by the use of the words "public, purpose." The Advocate-General is only concerned with public charitable trusts. He is not concerned with private trusts. 72. In contrasting the principles of English Law exemplified in these cases with, the principles of Muhammadan, Law, one finds one main principle in common. It is that perpetuities are obnoxious to the law, and void, but that charities are an exception to the law against perpetuities. Thus in Doe dem,. Howard v. .....

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as a case from Penang, it was held in the Privy Council as follows: Their Lordships think it was rightly held by Sir P. Benson Maxwell, Chief Justice, in the case of Choah Choon Nioh v. Spottiswoode Woods oriental cases that whilst the English Statutes relating to superstitious uses and to mortmain ought not to be imported into the law of the colony, the rule against perpetuities was to be considered a part of it. This rule, which certainly has, been recognised as existing in the law of England .....

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uld forever prevent such a beneficial use of it. The law of England has, however, made an exception, also on grounds of public policy, in favour of gifts for purposes use land beneficial to the public, and which, in a wide sense of the term, are called charity able uses and this exception may properly be assumed to have passed with the rule into the law of the colony. 74. In Fatmabibi v. Advocate-General of Bombay 6 B. 42 : 6 Ind. Jur. 253 : 3 Ind. Dec. (N.S.) 485 Mr. Justice West applied those .....

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in general apply the standard of customary law and common opinion amongst the community td which the parties belonged (page 50); that the general principle of the public law of British India was that of supporting the private customary law of each of the principal classes and that according to Muhammedan Law there could be no doubt that the proposed application of the fund" was a highly commendable charity (page 51). In conclusion, the judgment pointed out that a dedication in wakf is irre .....

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m Ganpatram v. Dakore Temple Committee 55 Ind. Cas. 956 : 22 Bom. L.R. 232 : 44 B. 151 in 1919 (2) Chintaman Bajaji Dev v. Dhondo (sic) Dev 15 B. 612 : 8 Ind. Dec. (N.S.) 413 and (1805) 10 Ves. 522 at P. 539 : 7 R.R. 232 : E.R. 947 the unreported Swaminarayan case F.A. No. 119 of 1905 on the appellate side of this High Court: an echo of which has recently come before the Privy Council in an appeal from Oudh, Kamla Lachhmi v. Basdev Prasad 58 Ind. Cas. 900 : 7 O.L.J 134 : (1920) M.W.N 553 : 23 O. .....

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v. Ven-katachalapatti Guruswamigal 53 Ind. Cas. 288 : 37 M.L.J. 460 : (1919) M.W.N. 850 : 17 A.L.J. 1097 : 10 L.W. 642 : 26 M.L.T. 479 : 24 C.W.N. 249 : 46 1.A. 204 : 22 Bom. L.R. 45 : (P.C), where thePrivy Council summarised the effect of their Lordships previous decisions in Ram Parkash v. Anand Das 33 Ind. Cas. 583 : 43 I.A. 73 : 20 C.W.N. 802 : 14 A.L.J. 621 : (1916) 1 M.W.N. 406 : 31 M.L.J. 1 : 18 Bom. L.R. 490 : 3 L.W. 556 : 24 C.L.J. 116 : 43 C. 707 : 20 M.L.T. 267 (P.C.), Palaniappa Che .....

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: 6 Ind. Jur. 253 : 3 Ind. Dec. (N.S.) 485, a trust for a Hindu idol and temple was held to be a public charitable trust. The case is an especially useful one as regards the relevant principles of law. The defendant sheraks or ministers of idol there claimed that they as a body were the owners for all secular purposes of the idol whom in he spiritual sense they served; and that the offerings and land presented by devotees were their property free from any secular obligation, as none had ever in .....

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eing jurally allowed, the duties and services connected with it must be deemed an object of; public concern, and at least as to their physical and secular elements, enforceable like other obligations (page 261 Pages of 22 Bom. L.R.-Ed.). After observing that the votary was little interested in what afterwards becomes of the offering (page 261), and that under Hindu Law a trust is not necessary (page 263 Pages of L.R.-Ed.), the judgment proceeded at page 265 Pages of 22 Bom. L.R.-Ed: But if there .....

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them for mal-administration by a suit open to any one interested, as under the Roman system in a like case by means of a popularis actio. 78. Then at p. 266 pages of 22 Bom. L.R.-(Ed.) it was said: The law which protects the foundation t against external violence guards it also internally against mal-administration, and regulates, conformably to the central principle of the institution, the use of its augmented funds. It is only as Subject to this control in the generarinterest of the community .....

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516 : 4 C.W.N. 23 : 26 I.A. 199 : 7 P.C.J. 559 : 12 Ind. Dec. (N.S.) 570) (P.C.). Subsequently & scheme was approved by the Privy Council see Sevak Kirpa Shankar Daji v. Gopal Rao Manohar Tambikar 17 Ind. Cas. 441 : 15 Bom. L.R. 13 : 12 L.T. 448 : (1912) M.W.N. 1106 C.L.J. 640 : 24 M.L.J. 199 (P.C.), which in its details is still the subject of litigation. See Asharam Ganpatram v. Dakore Temple Committee 55 Ind. Cas. 956 : 22 Bom. L.R. 232 : 44 B. 151. 80. There was also a second suit see Ka .....

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remuneration for their own personal services wherever the gift is made. (p. 322.) 81. The case of Chintaman Bajaji Dev v. Dhondu Ganesh Dev 15 B. 612 : 8 Ind. Dec. (N.S.) 413, is interesting, because there the defendant claimed to be god. He said: I understand that I am Mangal Murti, the god of Chinchwad. We are not pujaris. It is not the case that Mangal Murti is owner and I am the manager. All the villages.... I regard as my private imams. 82. Nor wfts this altogether a fanciful contention, f .....

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there (1) the institution with its preceptor or head and its disciples or students more resembled a monastery than a public temple; (2) the Muth property was attached to the office and passed to the head for the time being; and (3) in one case the superior claimed to be the owner of the bodies, souls, and wealth of his disciples in pursuance of a religious ceremony in that behalf. In the earlier cases there was considerable doubt as to the legal position of the superior. It was, said that the p .....

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solute property in the income from offerings, subject only to the burden of maintaining the institution. 84. In Arunachellam Chetty v. Venkata-chalapathi Guruswamigal 53 Ind. Cas. 288 : 37 M.L.J. 460 : (1919) M.W.N. 850 : 17 A.L.J. 1097 ; 10 L.W. 642 : 26 M.L.T. 479 : 24 C.W.N. 249 : 461 A. 204 : 22 Bom. L.R. 457 (P.C.) the true legal position was laid down by the Privy Council, viz., first, that the nature of the ownership is an ownership in trust for the institution itself, and, secondly, that .....

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the spiritual head...or is in trustees like the Chetties. 85. This decision followed that in Ram Parkash v. Anand Das 33 Ind. Cas. 583 : 43 L.A. 73 : 20 C.W.N. 802 : 14 A.L.J. 621 : (sec)M.W.N. 406 : 31 M.L.J. 1 : 18 Bom. L.R. 490 (SEC)W. 556 : 24 C.L.J. 116 : 43 C. 707 : 20 M.L.T. (sec) where it was held at page 76 pages of 43 I.A.-Ed. that although large administrative powers were undoubtedly vested in the reigning mohant or head, the trust did exist and must be respected, and at page 90f that .....

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e judgment sets out at page 386 pages of 10 M.-Ed. the nature of a Muth, and then at page 475 pages of 10 M.-Ed. it "deals with the "ceremony of dattam whereby each, tambiran (disciple) makes a gift of his soul body, and wealth, to his guru (preceptor)," The judgment then proceeds as follows: There is a great deal of oral evidence to the effect that such a ceremony is gone through by the tambirans of Dharmapuram during their ordination, and it is corroborated by the allusions made .....

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st, religious and charitable. It is provided by Act V of 1843, Section 3, that no person who may have acquired property by his own industry or by the exercise of any art, calling or profession, or by inheritance, assignment, gift or bequest, shall be dispossessed of such property or prevented from taking possession of it on the ground that such person or that the person from whom the property may have been derived was a slave. It is clear, then, that the agreement of a tambiran to become the sla .....

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strict Judge, Mr. Knight, has been of much service to me. It was affirmed on appeal with a variation, but the High Court judgment is practically confined to the variation, and is consequently of little use in the present case. In that case the object of the founder was neither the provision of facilities for public worship, such as, a temple, nor the establishment of a centre of theological learning, such as, a Muth. "The essential characteristic of his foundation lay in recognition of the .....

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case, which is admittedly a present to, and the private property of the Mullaji Saheb. 89. I may give, two more illustrations of what have been held in India to be public charitable trusts. In Jugalkishore v. Lakshmandas Raghunathdas 23 B. 659 : 1 Bom. L.R. 118 : 12 Ind. Dec. (N.S.) 440, a dharmashala attached to a temple was held a public charitable trust, and that the defendant by taking charge and managing had made himself a constructive trustee, and was liable as such to the beneficiaries. I .....

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a't in the sacred month of Warfar, which is the month in which Muhammad died. An action by the settler to set aside the deed failed, and it does riot appear to have been contended that this particular gift was in itself invalid. 90. Now let me apply, some of these general legal principles to the facts of this particular case, and see, what legal deductions ought to be drawn. I take first the mosque, for its legal position, is simpler than that, of the gulla. This seemed to me from the outset .....

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such as, repairs or sanitation, (4) that it is a mosque for the use of the Dawoodi Borah community, although others may occasionally be permitted to use it, and (5) that it cannot be used for any other purpose than a mosque. It is also clear that the old site has been used for a mosque for over 100 years. As stated by Jessel, M.R. in Bunting v. Surgent (1880) 13 Ch. D. 330 : at PP. 335 : 49 L.J. Ch. 109 : 41 L.T. 643 : 28 W.R. 123 with reference to the user of a Non-Conformist Chapel: "It i .....

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g any particular mosque, but this I need not decide. 92. Now on those facts and oh the principles of Shiah Muhammadan Law administered in the Indian Courts which I have already dealt with, one would think it clear that in law the mosque is devoted to charitable uses, and that the trustee or mutawalli is the Mullaji for the time being. At a late stage in the case, it transpired that the original instructions to defendants Counsel were to that effect (See Ex. 157). Mr. Acworth gave those instructi .....

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he without objection....The property...went to him (Mullaji) impressed with the trust that it should be allowed to be used as part of the mosque from generation to generation. 93. The pleadings carried this out, and no application was made to amend them till November 25,1920, when the trial had been, in progress for nearly three months. 93. What then made defendants adopt a different attitude at the trial, and persist in the contention that, if the Mullaji was in fact a trustee and so in theory .....

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the western lawyer is misunderstood by the eastern layman, and (2) that any concession as regards the mosque might logically weaken the position taken up with respect to the gulla. Be that as it may, the final contention put forward was that the mosque was held upon a religious trust, hut it was a trust peculiar to Dawoodi Borah, and to no other known law, inasmuch as the trustee was not accountable. (See Ex. 158.) This theory of a non-accountable trustee was based on the proposition that an inf .....

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ight of the law. But the liberty granted to one subject must not be used to the detriment of another subject. The principle sic utere tuo ut alienum non loedas is applicable to rights as well as property. In other words, liberty must not degenerate into license. Hence the law has to impose restraints on those who misuse the privileges of a free citizen. The slanderer, for instance, is restrained by the law of libel, the thief by the Indian Penal Code. But the fact that such restraints exist and .....

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e 49th Dai into prison for failure to pay a judgment debt, and which I have already referred to. (See Ex. B. E5). 96. Similar principles apply, I think, to trustees. The foundation of the law of trusts is that the trustee is trusted. Hence the greater the trust, the more unthinkable does it become that the trustee will violate it. And yet the law has to impose restraints on the guilty or negligent trustee and to give its assistance to any honest trustee who requires it. But the existence of thes .....

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Iris followers are numbered by the million and are found in ail parts of the globe. And yet in Moore v. The Pope (1919) 1 Ir. R. 316, His Holiness submitted to the jurisdiction of the Irish Courts and contended that a bequest to him to be applied at his sole, discretion in carrying out the duties of his sacred office was a valid charitable bequest. If the defendants are correct, the Holy Father ought to have strongly protested against any suggestion that he could be a trustee of a charitable fun .....

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sioners and Charity Commissioners, who now relieve the burden which would otherwise fall upon the Crown, But it shows that even in olden days the Crown thought it no slur to be regarded as a trustee. As the present is not a case of Sovereign rights, I need not consider what remedies, if any would be open in such a case to a subject who alleged a misapplication of such emoluments. 99. Nor has the Mullaji or his predecessors been ashamed in other days to be called trustees. In the book, Ex. A.L., .....

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6, which is a later edition by the present Mullaji, the corresponding passage runs: He is the trustee of the public funds of the community which it is his duty to dispose of economically as directed by the sacred Laws of Islam. 101. The defendants have relied on Her late Majesty Queen Victoria's Proclamation of November 1, 1858.* * * 102. His Lordship quoted the portion of the Proclamation dealing with religious toleration and then proceeded as follows. 103. If, in the words of the Proclamat .....

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es, the Charitable and Religious Trust Act, 1920, has been passed. Nowhere do I find any express exemption of Dawoodi Borah mosques or other charities. 104. But speaking very generally, the protection of the law in religious matters of confined to the protection of religious property or a religious office. The Court will not decide mere questions of religious rites or ceremonies (see C.P.C. Section 9), nor will it, I think, pronounce on any religious doctrine see Attorney-General v. Pearson (191 .....

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that the Court would not interfere with the worship at the mosque, and that apart from the denial of the trust, no case was made out by the Advocate-General for interfering with the general management. So the only point left was as to the theoretical trusteeship of the Mullaji. The defendants, however, persisted in contesting this, and in my judgment they were wrong. Their religion, however, stands where it did. A theoretical accountability affects the doctrine of infallibility no more than the .....

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act by agents. But no one suggests that they are infallible. If then any such agent is corrupt or negligent, why should the community be without a remedy against him? It may be that the Dai might thus be obliged to repair the misdeeds of his agents. But this would be no slur on him, any more than the misdeeds of the King's ministers would affect the constitutional doctrine that the King can do no wrong. 107. The other main ground upon which trusteeship was sought to be avoided, viz., the th .....

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: 3 Ind. Dec. (N.S.) 1015 already cited in para. 194; nor I think can this theory prevent a Bombay Dawoodi Borah from doing what every other Muhammadan British subject may do, viz., to create a binding and irrevocable wakf or trust in favour of charity. Why should the Court deny to the Dawoodi Borahs of Bombay the rights which the Mullaji is forced to give them by the Laws of Mecca? The answer that the Mecca Government is Sunni but the Dawoodis are Shiahs, seems to me insufficient. A Dawoodi is .....

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l Hotel, Limited, v. Regent (1919) 2 Ch. 197 : 88 L.J. Ch. 415 : 120 L.T. 396 : 68 S.J. 445 : 35 T.L.R. 418 : on appeal (1922) A.C. 508 : 89 L.J. Ch. 417 : 122 L.T. 691 : 64 S.J. 513 : 36 T.L.R. 600 . The theory of the Mullaji Saheb's universal ownership, therefore, seems to me to be unfounded in fact and bad in law. 108. The conclusion, therefore, which I have arrived at on this part of the case is that in law the Mullaji is a trustee of the suit mosque and theoretically accountable as such .....

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y and is in the nature of a perpetuity. The surplus of the past gulla offerings have also been invested in land, and it is at any rate arguable that they now form a permanent landed endowment, and hence a perpetuity. The future gulla offerings, however, do not necessarily involve a perpetuity, for I take it they could all be applied as income. There is clearly some connection between tomb and gulla, but it is not altogether simple to define in law. The Advocate-General suggested that the gulla o .....

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to be something in the nature of a good will attaching to the tomb, viz., expectation that worshippers will repeat their visits and repeat their gifts. There may, therefore, be a remedy against those 1 who might try to injure that good will. But for present purposes I do not think it necessary to pursue this. Whether it be wakf or sadakah, endowment or donation, the tomb pr the offering may yet be charitable. 111. The first point then that arises on the authorities is, whether Chandabhoy should .....

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led Chandabhoy's mosque. I need not quote the definitions of "saint" in Webster's or Murray's or Johnson's Dictionaries; but the latter quotes Addison as saying "miracles are required for all who aspire to this dignity, because they say a hypocrite may imitate a saint in all other particulars." 112. The word "wali" has, I think, substantially the same meaning as "saint." Both words are flexible to some extent, and depend on the context, As .....

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then do the authorities give on this point? The defendants rely on Zooleka Bibi v. Syed Zynul Abedin 6 Bom. L.R. 1058 and Kaleloola Sahib v. Nusseerudeen Sahib 18 M. 201 : 5 M.L.J. 40 : 6 Ind. Dec. (N.S.) 489 as showing that only the tombs of saints are charitable, and that according to the standards there mentioned, Chandabhoy cannot be regarded as a saint. But in both those cases the facts were quite different for the deceased persons were ordinary individuals. In the former case, Budruddin w .....

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: 5 M.L.J. 40 : 6 Ind. Dec. (N.S.) 489 the settlor and her deceased husband were both ordinary individuals. As stated at page 213, the tomb was a private tomb. Further, as, regards the ceremonies, it is clear that the learned Judges were influenced by the then decisions in Madras and England that gifts of property for masses for the dead were invalid on the grounds of public policy. The English decisions to that effect have now been over ruled by the House of Lords in Bourne v. Keane (1919) A.C .....

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vidual, and his tomb was in a private building. It was pleaded in that case that monetary offerings were made at the tomb, but the Appellate Court pointed out that only offerings of flowers were proved to have been made. The decision was that the tomb was not shown to be that of a saint or Pir. 115. In Muthukana Ana Ramanadhan Chettiar v. Vada Levvai Marakayar Ind. Cas. 1 : 34 M. 12 at p. 16 : (1910) M.W.N. 180 : 20 M.L.J. 254 : 8 M.L.T. 16 it is suggested that no line of distinction can be draw .....

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ion were clearly ordinary individuals. In Zooleka Bibi v. Syed Zynul Abedin 6 Bom. L.R. 1058. Mr. Justice Tyabji did not, I think, intend to confine saints to great religious teachers. At page 1064 pages of 6 Bom. L.R.-Ed. he says: "It is not shown that he (the deceased) was particularly learned member of the society, or that he was looked upon with reverence by the Mussalman community or that he was considered a Pir." An echo of this is found in para. 1 of the Mullaji's written st .....

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not possessed of any religious character. These passages seem to me once more to draw the distinction between matters of public and of merely private interest. This time it is the private individual as compared with the public character. In my judgment Chandabhoy satisfied the tests adopted in the above passages. I think that he is looked on with reverence by the Dawoodi Borah community; that he is a man of public character; and that he is a religious person to whom such sanctity is attached th .....

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mb belonged to, or was for the benefit of the whole community, just as was the case as regards the tomb of Firoze of Ahmedabad. I agree with the witness, but it is difficult to find a valid legal origin for this, if Chandabhoy was only a private individual. 117. Nor is it altogether sound to limit sainthood to popular belief at death. Sometimes it is only after death that the world discovers its saints. The canonisation of Joan of Arc has taken 500 years to effect. And even if Chandabhoy was onl .....

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sult, after a full consideration of the evidence and arguments on this point, I am of opinion that in this community Chandabhoy is regarded as a saint. 119. On that finding it follows that the tomb itself may be charitable, and that gifts for its perpetual up-keep may be valid charitable gifts. Nor can the analogies of English Law be invoked to invalidate the gift, as was done in Kaleloola Sahib v. Nusseerudeen Sahib 18 M. 201 : 5 M.L.J. 40 : 6 Ind. Dec. (N.S.) 489. Under English Law, the gift w .....

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17 Ind. Cas. 744 : 40 I.A. 18 at p. 23 : 1 W.R. 1913 : 11 A.L.J. 265 : 13 M.L.T. 318 : (1913) M. W.N. 270 : 17 C.L.J. 360 : 27 P.R. 1913 : 83 P.L.R. 1913 : 40 C. 297 : 156 Bom. L.R. 436 : 25 M.L.J. 61 (P.C.), 1 think that by user, if not by dedication, the tomb is wakf. But here again I do not propose to interfere with the management of the Mullaji Saheb. It is preferable that it should be left to him to do what is seemly and right. 120. I will next consider whether the offerings at Chandabhoy& .....

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e essential features of the offerings are (1) their religious connection and merit, and (2) their practical benefit to the community. They are given in connection with prayers to, through, or for Chandabhoy, and in the knowledge that the High Priest as such will receive them and in the ordinary course distribute them for the benefit of the community. As I have already stated, I accept the view that they are gifts to God and are God's property. 121. But then comes the important question wheth .....

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le-al position. It was substantially the same test which the Court of Appeal adopted in re Davidson (19), viz., whether the Archbishop could put the money into his own pocket. I respectfully adopt what Lord Cozens Hardy said there: Of course I do not suggest for a, moment that the Archbishop would do that. But one cannot have regard to the circumstances of the particular individual. 122. In fact the answer to the question would determine whether in law there was a trust or nothing. 123. Let me .....

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laid by the defendants. I have already dealt with some of the evidence on this point. It is not disputed that if donors want to make a personal gift to the Mullaji, they can do so. The gifts known as salam are an instance of, this. But the gulla offerings seem tome to stand on a totally different footing. After giving my best consideration to the evidence and arguments, I am of opinion that it is imperative on the Mullaji Saheb to distribute these gulla offerings for the benefit of the community .....

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which the defendants relied. Nor can I accept their argument that perpetuity is essential for a charitable gift. A donation may be charitable just as well as an endowment. But, if the donation can wholly be applied as income, it is often unnecessary to consider whether it is charitable and thus within the exception to the rule against perpetuities. Accordingly in Cocks v. Manners (1871) 12 Eq. 574 at p. 585 : 40 L.J. Ch. 640 : 24 L.T. 869 : 19 W.R. 1055 the Judge, first held that the convent wa .....

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nvolve a perpetuity, for presumably they can be applied as income. But it does not follow that they are not charitable. 126. Taking the specified objects which have been proved in this case, it is clear that the upkeep of the tomb and mosque are both charitable objects. So I think are the jamat feasts on 21st Ramzan. These are not disputed, nor are the occasional feasts on, the Mullaji's birthday. As regards the other usual applications of the suit guild offerings, viz., for the majlis cerem .....

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contention was not then open to the defendant. But even if it was, I think it ought not to succeed. 127. I regard these ceremonies and feasts as religious celebrations by the whole community in honour of a saint of theirs. They tend I think to the advancement of religion in their community. In my opinion they are quite distinct from fatyeh ceremonies in honour of a private individual. But even these have been held to be valid charities when accompanied by the giving of alms [see Muthukana Ana R .....

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ntual decision was that the fatyeh ceremonies, were valid charities see Mazhar Husain Khan v. Abdul Hadi Khan 9 Ind. Cas. 703 : 33 A. 400 at p. 406 : 18 A.L.J. 152. In the present case, it does not appear that any alms are given id the poor but on the other hand the celebrations are open to the rich and poor alike. It is true that the Mullaji sends out the invitations for the feasts, but these are effected by a crier, and are of a general nature. In my opinion, then, these celebrations stand on& .....

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i feast, to a Yorkshire clerical dinner, but some observations of Mr. Justice Eve in re Charlesworth (1910) 101 L.T. 908 : 54 S.J. 196 26 T.L.R. 214 seem to me to be apposite, and I will quote them. The gift in that case was to the Chairman, etc., of the Cleveland Clerical Society upon trust to appropriate the dividends in payment of the expenses of the annual dinners which the Society held. Mr. Justice Eve said that the gift must increase the attendance at the meetings, and proceeded: Having re .....

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ce, has the Mullaji a discretion to apply the whole fund for any of what I will call the surplus objects as well as the usual objects? Could he, for instance, apply the whole income of any one year exclusively on the surplus objects? I think not. I have felt some doubt on this point because of the admittedly wide powers of the Mullaji. On the other hand the consistent past user of the suit gulla funds, fortified as it is by similar consistent user of other gulla funds, and the absence of instanc .....

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., for it is the then Dai's own description of his obligations before the present controversy arose. It runs: He (the Dai) is the trustee of the public funds which it is his duty to dispose of economically, and at his discretion as directed by the sacred rules, in relieving the distressed and the needy and paying the expenses incurred by them and his deputies and discharging their sacred duties and in keeping schools and institutions for religious and secular instructions. 131. These purpose .....

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view may be justified on similar principles to those on which In re Allen (1905) 2 Ch. 400 : 74 L.J. Ch. 593 : 54 W.R. 91 : 21 T.L.T. 662 : 93 L.T. 597 was decided as already mentioned. 131. The examination-in-chief of the Mullaji as to the objects of the dawat will be found at pp. 180-182 of the Notes and his cross-examination at pp. 276-280. In chief the Mullaji mentioned allowances to the learned; allowances to anvils; allowances to Dawoodis in trouble; assistance to Dawoodi Borahs to start .....

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Lordship proceeded. 133. Assuming, however, for the sake of argument that the items of dawat expenditure put forward by the defendants are correct, the question still remains whether they are not all charitable. In my opinion they are charitable. The funds are held by a religious head for the benefit of the community as a whole. The particular applications of this fund as shown in those items are to my mind consistent with the central object of the fund. The selection of individual objects of r .....

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India had no hand in the ruling of the country on account of their exclusively religious calling, they had taken no share in the political events." And against any mere suggestion of possible objects, we have the hard fact of actual objects over a long series of years. We are dealing with offerings which are God's property, and which are distributable by a religious head for the. benefit of a particular community. The gifts, therefore, are not merely for "Sarakam" or "Dha .....

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ral. They must also be for the benefit of the Dawoodi Borah community. The case is distinguishable, therefore, from Dunne v. Byrne (1912) A.C. 407 at p. 411 : 81 L.J.C. 202 : 106 L.T. 394 : 56 S.J. 324 : 28 T.L.R. 257 and In re Davidson (1909) I. Ch. 567 at p. 569 : 78 L.J. Ch. 437 : 99 L.T. 222 : 24 T.L.R. 760 which I have already referred to, and also from In re Costa (1912) I.C.h. 337 : 81 l.j. Ch. 293 : 106 L.T. 458 : 58 S.J. 240 : 28 T.L.R. 189 where the gift was to such persons, and for su .....

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A gift for carrying out the duties of the sacred office of the Pope is not, I think, the same as a gift for religious or pious purposes for the benefit of a community. In that case as stated by the learned Judge at page 321 page of (1919) Ir. R.-Ed. "The bequest is not an endowment for the Pope, the benefit of which was ultimately to enure for a congregation, but it is for the purpose of the carrying out of the office of the Pope." Nor is the position of the Pope in international law a .....

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ffect of gifts to an ecclesiastic. It affords, therefore, some justification for my inability to share the confidence of Counsel in the "simplicity of the law in the present case, and for my referring them to Moore v. The Pope (1919) I. Ir. R. 316 and many other authorities to ascertain the principles which have guided Judges in other cases. 137. As regards the Aga Khan's case 12 B.H.C.R. 323 the decision depended on whether the Khojas were Sunnis as the plaintiffs contended, or Shiahs .....

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s injunction was refused. He also held at pp. 360-1 that there was no other ground for the interference of the Court. The gifts there appear to have been gifts to the Aga Khan personally, like the salaam in the present case which admittedly belongs to the Mullaji; or else were religious taxes (zakat). The only suit property in that case arose from these sources and it was held that it belonged to the Aga Khan. (See pp. 345-47.) The Court there had not to deal with offerings at a shrine, nor appa .....

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e suit gulla moneys, whether surplus or otherwise, are held upon charitable trusts. I am also of opinion that in law the Mullaji is the trustee thereof, and that as such trustee he has wide powers of management, and also a wide discretionary power as to the particular purposes for the benefit of the community on which the surplus moneys should be expended. 139. For present purposes, I think I need not decide whether these gulla offerings may more properly be described as wakf or as sadakah. Eith .....

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om. L.R. 91 at. P. 97 : 31 B. 250 Sir Lawrence Jenkins and Mr. Justice Beaman held that it could, but did not think it necessary for the purposes of that case to give a considered opinion upon the point. In Bai Fatmabai v. GulamHusen 9 Bom. L.R. 1367, Mr. Justice Russell held that shares in a limited company could not be given in wakf. The objection to moveable property is based on the alleged illegality of taking interest. But in the present case there is a large body of evidence to show that i .....

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d in favour of the Mullaji Saheb. The 46th Dai died as long ago as 1840, and there is no oral evidence now available from contemporary witnesses. But it is clearly proved that, so far as all outward manifestations are concerned, the succession of the 47th Dai was regular that he was accepted as Dai and ruled as such for some 45 years, and was suceeded by his appointee. For instance the dawat books of the time record the accession of the 47th Dai and the taking of the oath of allegiance by variou .....

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us of proof which the de jacto succession has thrown upon him. 143. I may now consider what relief ought to be given in this suit on the above findings. As to that the guiding principle should, I think, be the benefit of the charity. See Attorney-General v. Bosanquet (1941) 11 L.J. Ch. 43 at. P. 48 : 59 R.R. 591. What this charity wants most at present is peace, and a cessation of litigation and angry disputes. If, therefore, the Court could have made an end of this suit once and for all, there .....

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t necessitate the further recall of the Mullaji. 144. If the Mullaji Saheb had wished to adopt that attitude the candid, course would have been to plead it, or at any rate to state it in his evidence. He could then have been cross-examined on it. As it was he put forward sand adhered to the Memorandum Ex. Y.Y.Y., and he also intimated that he was content that the temporal affairs of his community should be entirely subject to the British Courts of Justice, and that in certain contingencies he wo .....

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emselves as trustees. The Court merely holds that their own description of themselves is correct in law. To say, therefore, that the Court is appointing trustees of the mosque may tend to inflame religious feelings, but in fact it is untrue. 146. I cannot, however, entirely overlook Counsel's statement, and make an end now of the suit. Some provisions should, I think, be made for future contingencies, although I trust they will never arise in fact. There must of course be declaratory relief .....

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h Tambekar 43 Ind. Cas. 806 : 45 I.A. 1 : 7 L.W. 22 : 4 P.L.W. 91 : 34 M.L.J. 130 : 41 M. 296 : 16 A.L.J. 113 : 27 C.L.J. 231 : 22 C.W.N. 457 : 20 Bom. L.R. 514 (P.C.) . 147. Badri Mahal creates a difficulty here, and I shall accordingly direct enquiries as to what properties and moneys are now held for the benefit of the gulla trust and as to what gulla moneys have been expended in connection with Badri Mahal. But, in the hope that the parties will themselves try to minimize further proceedings .....

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that the gulla charity is entitled to an aliquot share of Badri Mahal and of the past and future rents, while the defendants contend that the charity is only entitled to a charge. The practical importance of the point arises from the increase in value of Badri Mahal. On the other hand, I think, that under Ex. O.4, Badri Mahal is held on a charitable trust as a residence for the High Priest for the time being. So the contest only lies between two charities of the same community, subject, of cours .....

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rgh v. Lord Advocate (1879) 4 A.C. 823 at pp. 835, 839 the gulla charity might claim a proportionate share of the property. No. doubt in In re Hal left's Estate (1880) 13 Ch. D. 693 at p. 709 : 49 L.J. Ch. 415 : 42 L.T. 421 : 28 W.R. 732, Sir George Jessel said that the beneficiary was entitled to a charge. The Indian Trusts Act, 1882, Section 63, Illustration (b) is to the like effect. But in In re Hallett's Estate (1880) 13 Ch. D. 693 at p. 709 : 49 L.J. Ch. 415 : 42 L.T. 421 : 28 W.R. .....

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ink, however, that the interests of the charity will best be served by merely directing re-payment of the moneys expended with interest at 6 per cent, per annum and declaring an interim charge for the amount. It will make for simplicity and I hope for peace, and I think I have jurisdiction to adopt this cause. I see possibilities of considerable legal friction and delay, if some complicated enquiry is directed to ascertain the exact proportionate shares, and in the result the Mullaji's resid .....

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regard to these properties. 152. The question of costs is not an easy one. This is not a case, I think, where I ought to let the charity bear the costs of the litigation. If I did, little or no charity property might perhaps be left. The costs are at any rate very large and probably amount to several lakhs. The result of the suit is that though the plaintiff has succeeded on the main point of principle, viz., the trusteeship, he has failed in the attempt made in the plaint to deprive the Mullaji .....

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