Judgement Five Consolidated Appeals from decrees of the High Court (May 3, 1899), which in the first and fifth appeals reversed and in the remaining appeals affirmed decrees of the Subordinate Judge of Jaunpur. In the second, third, and fourth cases the respective respondents sued separately to recover their shares (each claiming by inheritance 61/448ths share of Aliat-un-nissas estate, and 1/7th of Kaim Alis estate), with mesne profits of the property in suit, which was the subject of a deed of waqf dated Law. Rep. 32 Ind. App. 86 ( 1904- 1905) Maulvi Saiyid Muhammad Munawwar Ali V. Razia Bibi 17 March 9, 1881, executed by the deceased Aliat-un-nissa and her husband Kaim Ali. The former was owner of the major portion of the estate in suit, and died on April 19, 1881. The remainder belonged to Kaim Ali, who was in possession of the whole till his death on February 11, 1895. The plaintiffs in the alternative claimed each 1/7th of the whole if it should be held that Kaim Ali, by adverse possession, had acquired title to his deceased wifes estate. The appellant defended his possession as the mutawalli under the deed of waqf after the death of Kaim Ali. The Subordinate Judge held on September 16, 1896, that the said deed of waqf, which is sufficiently set out in their Lordships judgment, did not create a valid endowment under the Mahomedan law, its true object being the aggrandisement of the family, and not a settlement for religious or charitable purposes. Thereupon Muzzafar Ali, another of the heirs and predecessor in title of the respondents in the first-named case, and Shakirat-un-nissa, a purchaser of the share which was of another heir and respondent in the fifth case, brought similar suits. Both were dismissed as barred by limitation. The five appeals from these decrees were heard together by the High Court. The only questions raised for decision were as to the validity of the deed of endowment, and as to whether suits to recover possession of the property of Aliat-un-nissa were barred by limitation. On the first question the High Court decided that the real object for which the waqfnama was executed was not to create a perpetual trust for religious or charitable purposes, and was therefore invalid. On the first question the High Court decided that the real object for which the waqfnama was executed was not to create a perpetual trust for religious or charitable purposes, and was therefore invalid. On the second question it decided that the suits were not barred by limitation, as Kaim Alis possession was not adverse to the heirs of Aliat-un-nissa. In the result decrees were made in favour of the plaintiffs in each of the said five suits. The material part of the High Courts judgment as to limitation is as follows " The respondent has failed to prove any adverse possession in Saiyid Kaim Ali. It is admitted for the appellant that no question of estoppel arises. But it is contended that, the waqf being bad, Saiyid Kaim Ali held possession of his wifes estate after her death as a trespasser, and so by adverse possession had acquired a prescriptive title to it before his death in 1895. Now, there can be no doubt that his possession of that estate in the interval between the execution of the waqfnama and his wifes death was permissive, and he professed to take, not in any personal right, but as mutawalli under the terms of the waqfnama and for the purposes set forth in that instrument. I fail to see any change in the nature of his possession from that time up to his death. By the terms of the waqfnama, on the abandon ment of their proprietary rights by his wife and himself, he took possession as mutawalli, or trustee, to carry out the terms of the waqfnama. He did not at any time profess to have, nor did he set up, any personal title in himself. The fact that the waqf is not valid in law does not in my opinion make any difference in the nature of his possession. That fact did not clothe him with any adverse title to possession, but left him as trustee for the rightful owners of the property, namely, his wife and her heirs after her. In all his acts in the administration of the waqf he professed to act as trustee or mutawalli of the endowed property. In my opinion, the waqf having failed, he held the property as trustee for those entitled under a legal obligation to hand it over to them on demand. In all his acts in the administration of the waqf he professed to act as trustee or mutawalli of the endowed property. In my opinion, the waqf having failed, he held the property as trustee for those entitled under a legal obligation to hand it over to them on demand. Had such a demand been made and refused, there would be good ground for holding his subsequent possession was adverse to the true heirs. Nothing of the kind is alleged; there is not an atom of evidence to shew any change in the nature of Saiyid Kaim Alis possession from the day when he assumed possession of his own and his wifes properties as mutawalli, in 1881, down to his death in 1895. I am therefore of opinion that the appeal on this point fails, and that the decree of the Subordinate Judge is right." Law. Rep. 32 Ind. App. 86 ( 1904- 1905) Maulvi Saiyid Muhammad Munawwar Ali V. Razia Bibi 18 Both Courts decided that the deed in question did not create a legal and valid waqf. De Gruyther, for the appellant, contended that the deed in question contained a substantial dedication of this property to religious and charitable purposes, and that in consequence there was a valid waqf. If that were established on the true construction of the deed, the provisions relative to the due support of the family did not avail to invalidate it see Sheikh Mahomed Ahsanulla Chowdhry v. Amarchand Kundu (( 1889) L. R. 17 Ind. Ap. 28.), Abdul Fata Mahomed Ishah v. Russomoy Dhur Chowdhry (( 1894) L. R. 22 Ind. Ap. 76.), Mujibunnissa v. Abdul Rahim (( 1900) L. R. 28 Ind. Ap. 15.), Baillies Mohamedan Law, p. 595, Muzhurool Huq v. Puhraj Ditarey Mohapattur (( 1870) 13 Suth. W. R. 235.), and Phulchand v. Akbar Yar Khan. (( 1896) Ind. L. R. 19 Allah.) He also contended that the suits, so far as they related to the wifes property, were barred, inasmuch as the husbands possession from the date of her death, being under the deed and in assertion of its validity, had been adverse to the plaintiffs. C. W. Arathoon, for the respondents, contended that the dedication relied upon by the appellant was colourable and not substantial. Neither charity nor religion was the object of the executants. C. W. Arathoon, for the respondents, contended that the dedication relied upon by the appellant was colourable and not substantial. Neither charity nor religion was the object of the executants. Their real object appeared on the face of the deed to be to preserve the dignity of the riasat, to prevent partition among the heirs, to prevent alienation and liability to the debts of the family. The slight expenditure on the objects contemplated by waqf was merely to give a colour to the transaction and was not both fide. The object was to tie up the property in perpetual settlement for the benefit of the family, and this was sufficient to invalidate it see Abdul Gafur v. Nizamuddur. (( 1892) L. R. 19 Ind. Ap.170.) Upon the question of limitation he con tended that Kaim Alis possession was permissive and not adverse to the heirs. De Gruyther replied. March 16. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. These consolidated appeals relate to a deed, purporting to be a waqfnama, executed on March 9, 1881, by a Mahomedan lady, Aliat-un-nissa Bibi, and her husband Muhammad Kaim Ali. The larger part of the pro perty affected by that deed belonged to the lady, the rest to her husband. She died on April 19, 1881, and her husband remained in possession of the property from that time until his own death on February 11, 1895. The executants of the deed had two sons and four daughters; one of the daughters, Asima, died after her mother but before her father; the other children survived both their parents. On the death of the father the elder son, the now appellant, took possession of the property, claiming to be entitled to it as mutawalli under the deed of waqf. Three suits were thereupon brought by the three surviving daughters, in which they alleged that the deed created no valid waqf, but that the property descended to the heirs of their mother and father, and they claimed their shares accordingly against the defendant, now the appellant, with mesne profits. The defendant relied upon the validity of the waqfnama, and upon his title as mutawalli under it. He also set up other defences which need not now be considered. The defendant relied upon the validity of the waqfnama, and upon his title as mutawalli under it. He also set up other defences which need not now be considered. The Subordinate Judge of Jaunpur, who heard these three cases, held that the deed created no valid waqf, and made decrees in favour of the plaintiffs. The next suit was filed by the second son, in which he raised a claim exactly similar to that raised by his sisters in the first three suits, and was met by similar defences. That suit was dismissed on a Law. Rep. 32 Ind. App. 86 ( 1904- 1905) Maulvi Saiyid Muhammad Munawwar Ali V. Razia Bibi 19 ground which has since been abandoned. The case therefore now stands on exactly the same footing as the previous cases. The last suit was filed by one of the daughters, who had been plaintiff in one of the first three suits. It related to the share of her sister Asima (who, as has been mentioned, died after her mother but before her father) as one of the heirs of her mother, in which share the plaintiff in this last suit has acquired an interest by purchase. This suit, like the others, raised the question of the validity of the alleged waqf, but it was dismissed on the ground of limitation. Against all these decisions appeals were brought to the High Court, and that Court affirmed the decisions of the first Court in the three cases in which it had found in favour of the plaintiffs, and reversed its decisions in the two cases in which it had found for the defendants. Against those decrees of the High Court the present appeals were brought. The main question raised by the appellant, the one question common to all the cases, and the only question in the first four of them, is whether the deed of March 9, 1881, created a valid waqf. Both the Courts in India have answered the question in the negative. They have laid down the rule of law by which they were guided, and for the purpose of applying it to the deed now in question have minutely examined the clauses of that deed. Both the Courts in India have answered the question in the negative. They have laid down the rule of law by which they were guided, and for the purpose of applying it to the deed now in question have minutely examined the clauses of that deed. As their Lordships are of opinion that those Courts have correctly apprehended the law applicable to the case, and as they agree in the view that has been taken as to the character of the deed, their Lordships think it unnecessary to discuss the law on the subject, which has already been more than once considered by this Board, or to examine in detail all the provisions of the deed. It will be sufficient to point out its character somewhat generally. It begins with recitals in which the intending settlors put their own construction upon the deed, and state the objects for which they executed it and the effect they intended it to have. They say it is necessary " that sufficient provision be made for the thorough management of the entire property, and the imlak belonging to the executants, and the income and profits therefrom (which, taken as a whole, forms a small estate), so that the property itself and the principal wealth of-the estate may always be preserved from all manner of partition, division, transfer, and succession, and the management thereof in whole and in part should remain for ever in the hands of one person, whereby our name and memory, and the pomp and dignity of the estate, may continue "; and that "the attainment of the above object is impossible except by a waqf." Turning to the operative clauses of the deed, the first and the most general in its terms is paragraph 4, by which the executants "make waqf .... in favour of our respective selves, and after the death of one of us (the executants) in favour of the surviving executants alone, and thereafter in favour of our descendants, generation after generation, so long as they exist, and in favour of the servants and dependants of the riasat (estate) aforesaid and in favour of the poor, the beggars, and the needy for ever in the manner detailed below." The numerous clauses that follow are entirely in accord with the purpose stated in the preamble and embodied in the fourth paragraph. The bulk of the property is not affected by any religious or charitable trusts. The rules laid down are almost all expressly directed to securing Kaim Ali in the full enjoyment of the whole estate as long as he lived, to keeping that estate in perpetuity entire and inalienable under efficient management by a single person, to maintaining the dignity of the family, and to making provision for its members. The religious and charitable clauses are no exception. They are ancillary to the real purpose of the deed ; they deal with matters naturally incident to maintaining the dignity of the family, and their secondary character is further apparent from the fact that, while the deed purported to create the waqf as from its date, the religious and charitable trusts were not to Law. Rep. 32 Ind. App. 86 ( 1904- 1905) Maulvi Saiyid Muhammad Munawwar Ali V. Razia Bibi 20 become obligatory till after the deaths of both the executants. The name and form of a waqf are avowedly adopted in the hope of gaining legal recognition for a transaction which without them could have no validity. It follows that the deed created no valid waqf. And this disposes of the first four appeals. With regard to the fifth appeal another point was raised. It was said that, Asima having died after her mother but before her father, those who now stand in her place could at most claim, as they do claim, her share in her mothers estate, but of course no share in her fathers; and that her father, by his exclusive enjoyment of the mothers estate, had acquired a title to it as against the heirs of the mother, and that, therefore, the claim to Asimas share was barred. The answer to this contention is that it assumes the fathers possession to have been adverse to the heirs of the mother. But the High Court has held that that possession was not adverse, and no reason has been shewn to their Lordships which could lead them to dissent from that finding. Their Lordships will humbly advise His Majesty that these appeals should be dismissed. The appellant will pay the costs.