[1946] EACA 7

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda), and SIR G. GRAHAM PAUL, C. J. (Tanganyika)

1. SAID BIN MUHAMMAD BIN KASSIM EL-RIAMI,

2. SULLEMAN BIN SULTAN BIN KASSIM EL-RIAMI.

3. NASSOR BIN SULTAN BIN KASSIM EL-RIAMI,

4. AHMED BIN SULTAN BIN KASSIM EL-RIAMI,

5. ALI BIN SULTAN BIN KASSIM EL-RIAMI,

6. SEIF BIN SULTAN BIN KASSIM EL-RIAMI,

7. AMOUR BIN SULTAN BIN KASSIM EL-RIAMI.

8. MASOUD BIN NASSOR BIN KHAMIS EL-RIAMI,

9. KHAMIS BIN NASSOR BIN KHAMIS EL-RIAMI,

10. SEIF BIN ABDULLAH BIN SEIF EL-RIAMI,

11. SEIF BIN NASSOR BIN KASSIM EL-RIAMI,

12. KHALIF BIN NASSOR BIN KASSIM EL-RIAMI,

13. MBARUK BIN SEIF BIN KASSIM EL-RIAMI,

Appellants (Original Plaintiffs).

v

## THE WAKF COMMISSIONERS. ZANZIBAR.

Respondents (Original Defendants).

Civil Appeal No. 1 of 1946

(Appeal from decision of H. M. High Court of Zanzibar)

Will—Wakf—Validity—Ultimate gift to poor illusory.

A testatrix by her will purported to constitute a wakf of a small property for "her children and grandchildren and their posterity and when they become extinct the wakf should revert to her near relatives amongst the Muslims, and then to the poor Muslims of the Ibathi sect, to enjoy the said wakf by living and using the produce thereof until God inherits the earth and its occupants".

*Held* $(5-3-46)$ .—(1) That the wakf can be constituted by will.

(2) That in the present case the chances of the poor ever getting any benefit under the will were so remote and uncertain that the wakf was illusory and consequently void and of no effect.

Appeal allowed.

Cases referred to: Sulleman bin Ahmed v. Salem bin Abdulla 1 Z. L. R. 328; Abul Fata Mahomed Ishak and others v. Rasamaya Dhur Chowdri and others 22 Calc. 619 at p. 634.

[Editor's Note.—Since the decision of this case the law has been altered by the enactment of the Wakf Validating Decree, 1946, under which such a wakf would now be valid.]

Amin $(C. H. Patel$ with him) for the appellants.

Bryson for the respondents.

SIR JOSEPH SHERIDAN, C. J.—This is an appeal from a judgment of the learned Chief Justice of Zanzibar concerning a testamentary Wakf made by one Asha binti Juma on the 21st December, 1880. The relevant portions of the Will are as follows: $-$

"Asha binti Juma bin Ali Masoud el-Mugheririya has enjoined that after her death her shamba which is situated at Kiungani... be made a wakf for her children *and* grandchildren *and* their posterity and when they become extinct the Wafk should revert to her near relatives amongst the Muslims. and then to the poor Muslims of the Ibathi sect, to enjoy the said wakf by living and using the produce thereof until God inherits the earth and its occupants."

The question which has been mainly argued before us by counsel for the appellants was whether a valid wakf was created by the Will. The respondents did not appear, nor were they represented at the hearing of the appeal. The appellants—plaintiffs in their plaint asked inter alia "for a declaration that the alleged wakf set up by defendants is bad in law and of no effect and that the shamba alleged to have been made wakf forms part of the heritable estate of Ahmed bin Nassor". Ahmed bin Nassor was the grandson of the testatrix. The plaintiffs claim the property as heirs of Ahmed bin Nassor who was declared a lunatic about 27th November, 1913, the Public Trustee being appointed as his trustee receiving as such the rents and profits of the property in question until his death on 26th February, 1944. For some reason not explained the plaintiffs' allegation that the gift to the poor was illusory and void for uncertainty was not seriously pressed at the trial and in the grounds of appeal as at first presented this allegation was not made a ground of appeal. Mr. Amin, counsel for the appellants, subsequently made it a ground of appeal as he was quite entitled to do and served notice of this ground of appeal on the advocates for the respondents, who put forward a written argument that "According to Mahommedan Law applicable to the parties, i.e. Ibathi Law, a dedication by way of wakf in terms contained in the will of the dedicator is not void or of no effect as submitted by the appellants. Reference is invited to Sulleman bin Ahmed v. Salem bin Abdulla, 1 Z. L. R., p. 328, and *Mahommedan Law* by Fitzgerald, p. 209 and 202. There is no uncertainty or remoteness regarding the gift to the poor". In Sulleman's case it was held that "a wakf can be constituted by will, and that a gift to heirs and their descendants, with an ultimate gift over to the poor or to a mosque or to other religious purposes is valid whether made by will or otherwise". With that decision 1 respectfully agree. In that case it was held that the deed was valid as a wakfnama. It will be observed that in that case the gift was to "heirs and their descendants" before providing for the ultimate gift over to the poor as distinct from the present case where the wakf is for the testatrix's "children and grandchildren and their posterity and when they became extinct the wakf should revert to her near relatives amongst the Muslims and then to the poor Muslims of the Ibathi sect". The question is whether this gift over to the poor is so remote or uncertain as to be illusory and so invalid. It seems to me that the answer to this question is to be found in the judgment of the Privy Council in the case of Abul Fata Mahomed Ishak and others v. Rasamaya Dhur Chowdri and others 22 Calc. 619 at p. 634 where Lord Hobhouse in delivering the judgment of the Board said "A gift may be illusory whether from its small amount or from its uncertainty or remoteness. If a man were to settle a crore of rupees, and provide ten for the poor, that would be at once recognized as illusory. It is equally illusory to make a provision for the poor under which they are not entitled to receive a rupee until after the total extinction of a family; possibly not for hundreds of years; possibly not until the property had vanished away under the wasting agencies of litigation or malfeasance or misfortune, certainly not as long as there exists on the earth one of those objects whom the donors really cared to maintain in a high position. Their Lordships agree that the poor have been put into this settlement merely to give it a colour of piety and so to legalize arrangements meant to serve for the aggrandizement of a family". In the ease of the wakf under consideration the

possibility of the poor ever getting any benefit is even more remote than in the Privy Council case far different from that case where the gift for the benefit of the poor was to take effect on the extinction of the dedicator's family, in the present case the property after the extinction of the posterity of the dedicator passed to "her near relatives". It seems to me that the chances of the poor ever getting any benefit under the will are so remote and uncertain that the wakf must be held to be illusory and consequently void and of no effect. I would allow the appeal with costs in this Court and the High Court. I would also declare that the property in question is part of the heritable estate of Ahmed bin Nassor and direct that the defendants do give up the property to such person as the High Court of Zanzibar may appoint for the due administration of the property and its division amongst the heirs of Ahmed bin Nassor according to law and remit the case to the High Court for that purpose.

SIR NORMAN WHITLEY, C. J.-I have had the opportunity of reading the judgment of the learned President with which I completely agree. $\mathcal{L} = \mathcal{L} \times \mathcal{L}$

SIR G. GRAHAM PAUL, C. J. I have had the opportunity of reading the<br>judgment delivered by the learned President which so fully and clearly expresses my views on this case that I find it unnecessary to say more than that I concur in the judgment of the learned President.

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