S. Haji Abdulla Sahib and Others vs Hyder Beg Sahib alias Dada Mian Sahib and Others

John Wallis, C.J.—The question in this appeal is, whether the grant, Exhibit L, created a public charitable trust. The petition, of which a

precis is given at the close of the document, prays that a grant by the late Nawab Sadatullah of 18 Cawnies of land for expenses of lamp oil in the

Mosque and in aid of the maintenance of the petitioners who were servants of the mosque should be confirmed. This was preceded by another

summary of the petition which says that the grant prayed for was of 16 Cawnies of land and the rent of 12 shops for the same purposes, The grant

itself, which comes first, recites the earlier grant for subsistence of Abdul Kadir, etc, the servants of the mosque and for the expenses of lamp, oil in

the mosque and makes a grant of the lands and the rents ""to the aforesaid persons so that the revenues may be enjoyed by them according to their

own needs and that they should engage in prayers for the prosperity and duration of the Government."" In Bibee Kuneez Fatima v. Bibi Saheba Jan

8 W.R. 313 and Sayad Mahomed Ali v. Sayad Gobar Ali 6 B.P 88; 3 Ind. Dec. (N.S.) 516 grants somewhat resembling this were held not to

give rise to charitable trusts and the judgments of these cases show that the Court read the grants in those cases as grants to the grantees free from

any trusts at all. It was not held in Bibee Kuneez Fatima v. Bibi Saheba Jan 8 W.R. 313 that a grant of this nature for the maintenance of a

monastrey would not be charitable but that no such trust was intended to be created. On the other hand, in Bishen Chand Basawat v. Nadir

Hossein (1858) 15 L.A.I ; 15 C.P 329 ; 5 Sar. P. C.J. 113 ; 12 Ind. Jur. 170 ; 7 Ind, Dec. (N.S.) 803 an express trust was dearly created by the

terms of the instrument, and it affords no assistance at all in the present case. Here the lands and shops are given to the grantees to be enjoyed by

them for their own necessities and they are to pray for the prosperity of the State. Nothing is said in terms of this grant itself about the future

maintenance of the lamps and I cannot read it as a grant in favour of the petitioners subject to the burden of maintaining the lamps. There is,

however, one fact which is peculiar to this case. The grant is made to the petitioners, who are described as the servants of the mosque. It does not

appear that they were all of one family and it can scarcely have been intended as a grant to them as tenants in-common. Having regard to this fact

and to the fact that in the registers maintained since the establishment of the British Government the property has been treated with the assent of the

heirs of the grantees as an endowment of the mosque, I think there is sufficient evidence to show that in this case the intention was to create a trust

and I would accordingly reverse the decree and remand this case for disposal according to law. Costs to abide.

Ayling, J.

I agree.