and third defendants. Hulas died in 1878, and both Lalji and Shamsher,
PRIVY died before this appeal was filed.
COUNCIL. The plaintiffs, now appellants, were the heirs of Moti Ram Sah,
formerly a shraf in Bareilly ; and they brought the present suit on a bond
14 A. 420 an( j mortgage, dated the 23rd of March 1873, claiming the balnncn, after
(P.C.)= crediting payment of Rs. 7,000. upon a loau, originally Rs. 32,000, with
19 I. A. 196= interest amounting to Rs. 39.249, taken by Lalji, as mukhtar or Huias,
6 Sap. P.C J, claiming also a charge on villages mortgaged. Aohan, E layot and S'iam-
*97. sher, by their written statements, set up the defence that Hulas had no
power to bind them by borrowing, and no power to mortgage the property
inherited from her husband except for necessary purposes and that no
such purposes existed in this transaction. Achan denied that Lalji had
power to bind her interest in her father's estate, or to consent on behalf
of his sons to the mortgage.
The issues related to the questions raised by the defences, and, among
others, to tne alleged " absence of necessity" to take the loan.
It appeared that after the death of Hulas, her daughter Achan, with
her two sons, Eoayet Singh and Shamsher Singh, obtained entry of their
names in the Revenue records in place of the deceased. Also that, on the
5bh of March 1877, a power in favour of Lalji was executed by Hulas,
Achan and Enayet Singh, declaring that whatever proceeding had been,
or might be, taken by the Mukhtar (Lalji) on their behalf, should be
recognised by them as done by themselves.
In the result, the Subordinate Judge made a decree in favour of the
plaintiffs for Rs. 38,010, and directed that, if this sum should not be paid,
the mortgaged villages should be sold. .
 Achan, Enayet Singh and Shamsher appealed to the High
Court. By an order (16th February 1888), the plaintiffs, then respond-
ents, were permitted to produce further evidence, and they filed accounts
and other documents. They also examined a witness, Hira Lai, who
stated the circumstances under which the loan of Rs. 32,000 was taken
The judgment of the Divisional Court (SIR J. EDGE, C.J., and
TYRRELL, J.) dealt with the question of the necessity of the loan, and de-
cided that the purposes for which, in fact, the Rs. 32,000 were borrowed
from the firm of Moti Ram Sah were nob purposes that could be pronoun-
ced "necessary," according to Hindu Law. With regard to how far Achan
was bound by the acknowledgment of authority contained in the document of
the 5th of March 1877, the Judges decided that there was nothing to show
that, at the date of the bond of 1873, Lalji had authority from bis wifu to
bind her in that transaction as to her expectant life interest ; and that
it could only be by treating the words in the subsequent power, executed
in 1877, as a ratification of Lalji's act, that it could be said that he was
so authorized. But as to that document, they considered the terms to be
vague, and not calculated to show that at the time of the execution Achan
had her attention called to, or was aware of, all the circumstances attend-
ing the bond of 1873, or knew what her own position was. It was not
binding upon her. As to Enayet Singh, they were not satisfied with the
evidence on the record that he was of age in 1877. Looking at the whole
case, they were of opinion that the plaintiffs had failed to make out a case
against any of the three defendants, and in that view they reversed the
decree of the Subordinate Judge, and disooissed the suit with costs.
11] AMABNATH SAH V. ACHAN KUAR 14 All. 423
On this appeal 1892
Mr. R. V.'Doyne, and Mr. G. E. A. Ross, for the appellants, argued MAY 14.
that the High Court should not have held that the purposes for which
the loan was taken were not necessary. During the lifetime of Khairati PRIVY
Lai, the firm, of which he was head, carried on dealings with Moti COUNCIL.
Earn Sah, which were continued after his death, with the knowledge *~7~
of Hulas. In fact, her husband left debts  contracted in his pr \_
lawful business. These, his widow, in paying, would be acting as a faith- ' _
ful widow. She was bound to pay these debts, and could not pay them ' ~
by other means than by borrowing. For these, and other purposes, con-
nected with the maintenance and credit of the family, which was commit-
ted to keeping up the firm, she was justified in mortgaging. These matters -
were known to the lender of the money, and the occasion was regarded as
a justifying and necessary one. The object of the document of 1877 was
to satisfy the customers of the firm that Lalji could deal with the family
estates for business purposes.
Eeference was made to
Hunooman Persaud v. Munraj Koonweree (1), the Collector of Muslipa-
tam v. Cavaly Vencata Narrainapah (2) Raj Lukhee Debea v. Gokool Chun-
der Chowdhry (3) K-imeswar Pershad v. Run Bahadoor Singh. (4).
Mr. J. D. Mayne, for the respondents, argued that the judgment of the
High Court was right. The mortgage of March 1873 only bound the
widow's estate for her own life, and had ceased, upon her death, to
operate. There had been no ratification.
Mr. R, V. Doyne replied.
Afterwards (14th May), their Lordships' judgment was delivered by
The plaintiffs, who are now appellants, brought a suit against the
present respondents and two other defendants to enforce a mortgage bond
executed to one Moti Earn, the ancestor of the plaintiffs, for the purpose
of securing an advance of Es. 32,000, with interest thereon.
The bond sued upon is dated the 23rd of March 1873, and it com-
mences in this way :
" I, Eaja Lalji, for self, and as guardian of Kuar Enayet Singh and
Kuar Shamsher Bahadur, muktar of Eani Hulas, Kuar wife, and manager
of Eani Achan Kuar, daughter of Eaja Khairati Lai,  caste
Kayasth, resident of Lucknow, now residing at Bareilly, do declare that I
have, under the power given to me by registered general power of attorney,
dated the 4th of April 1866, executed by Eani Hulas Kuar under the power
of the certificate of guardianship, dated the 18th of July 1866, and under
the power which I have to make management in general, borrowed
Es. 32,000 of the Company's coin, half of which is Es. 16,000, for the
payment of the debt taken to meet the marriage expenses of Kuar Enayet
Singh and the expenses of the case pending at Lucknow from before. "
Eaja Lalji then agrees to pay the money in five years, and hypothe-
cates and pledges certain mauzas belonging to Eani Hulas Kuar.
Khairati Lai, who died in 1866, was the zemindar of the mauzas
in question, and was also a dealer in money and in hundis. Hulas
was his widow and heir. Achan was his only child, and she married
(1) 6 M.I.A. 393. (2) 8 M.I.A. 500.
(3) 13 M.LA. 209, (4) 8 I.A. 8 = 6 C. 843.
14 All. 425 INDIAN DECISIONS, NEW SERIES [YoL
1892 Eaja Lalji. Enayet and Sbamsher were the children of that mar-
MAY 14. riage, both being minors at the date of the bond. Very* shortly after
Khairati'a death, Hulas executed a mukhtarnama giving to Lalji very
PRIVY large powers of management and disposition over her property. She died
COUNCIL, on the 22nd of June 1878. Sbamsher and Lalji were the two defendants
below who are not now respondents. They are both dead.
li A. 42 rpj 3e p i a j nfc) w bi cn was fii 8 c[ i February 1885, states that the four
'* defendants borrowed the money, and that Hulas hypothecated the estate;
** and it prays such relief as is usual in the case of mortgage bonds. Lilji
6 Sar. P.C.J. ^ no |. p Ut j n aDy W ritten defence ; indeed he cannot have had any
defence. The other three defendants all set up the defence (among othors)
that Hulas had only a widow's estate, and waa under no necessity to
borrow money. The plaintiffs replied by a written statement in which
they alleged that on the 5th of March 1877 another deed was executed by
Hulas, Achan and Enayet to Lalji, by which they admitted and recognized
the deed of the 23rd of March 1873. But the reply is quite silent, as was
the plaint, uoon the point whether the loan was necessary or not.
 When the issues were settled, this point was treated as
belonging to the defence, and was raised in the form of a question, how
far the objections resting on the absence of necessity were tenable. It is
obvious that such a mode of raising the question is incorrect, because ifc
appears to assume that it was for the defendants to show absence of
necessity ; whereas the rule is that a mortgagee claiming title under a
Hindu widow as against her husband's heirs should prove the validity of his
mortgage ; and this case presents no ground of exception to the rule.
Neither party adduced any evidence bearing on the point.
The Subordinate Judge gave the plaintiffs a decree for an amount
something less than the amount claimed by them ; and ordered that the
hypothecation should be enforced. He was of opinion that the plaa of
non-necessity was not made out, apparently on the ground of the recital
in the mortgage bond ; and he also thought that the defendants Achan and
Eoayet had confirmed the bond.
The defendants other than Lalji appealed to the High Court. During
the argument for the plaintiffs certain observations were made by their
Counsel which induced the Court to make an order enabling them to
produce further evidence. The order is not in the record, but probably ifc
was framed so as to allow the plaintiffs to prove the necessity for the loan
raised by Hulas. For that purpose the plaintiffs called as a witness one
Hira Lai, who entered Khairati's service in the year 1864, and managed
or assisted in managing the monetary business up to the year 1880. He
was the only witness called. Lalji, who must have known the facts better
than anybody else, died shortly before the hearing of the appeal.
After hearing the further evidence the High Court decided that there
was no proof of any necessity for the loan, and that no act had been
done by Achan or Enayet which had the effect of making them liable for it.
They therefore dismissed the suit with costs. From this decree the plaint-
iffs appeal, and it has bean strongly urged at; the bar that they are entitled
to succeed, both on the ground of the propriety and validity of the mortgage
by Hulas, and  on the ground that Achan and Eaayet have validated
it if originally invalid.
As regards Eoayet, ha has never had any present interest in the
estate. He is only heir. apparent now ; and on the 5ih of March 1877, the
date of the deed relied on for the validation of the mortgage, he was
not even so much as that ; his mother, Achan, was then heir apparent
YII] AMABNATH SAH V. AOHAN KUAR 14 All. 427
It is not contended that he ever took upon himself any personal responai- 1892
bilitv for the loan, and it is clear that he has never been in a position to MAT 14-
eonfirm the mortgage.
As regards Achan, the expressions relied on in the deed are as follows:
After stating that the former power of attorney was given to Lalji by COUNCIL.
Hulas alone, the three parties, Hulas, Aohan and Enayeb appoint Lalji n~4~420
their general attorney. They then proceed : (P G ) =
" We covenant and record that whatever proceeding has been or may 18 I. A. 196 =
be taken by the said mukhtar on our behalf, i.e., if he, having borrowed 6 Bar. P.C.J.
money, executes bonds or sells, pledges, mortgages or alienates in some 197.
other way the moveable and immoveable properties, or gives in lease
the whole or a portion of the villages at any jama he thinks proper, or
gets the documents executed by us registered, or causes mutation of
names to be effected in respect of villages, etc., owing to temporary or
permanent alienations, all such proceedings taken by the said mukhtar
shall be accepted and recognized by us as done by ourselves, and not
ignored by us in any way."
The whole of these expressions except the three words" has been or"
point to that which is the proper object of a power of attorney, vie., to
give authority to the future acts of the attorney. Achan was a parda-
nashin lady ; she had no interest in the estate other than one in expectancy ;
she was not dealing with a stranger, but with her own husband ; she was
not receiving any valuable consideration. It is true that she executed
the deed after having it read over to her. But there is no evidence thab
she was told that amongst the somewhat profuse heap of words conferring
ordinary powers on a general attorney, there lurked just three words
having a far  different effect, the effect, namely, of subjecting her
expectant estate to a burden which she was gratuitously undertaking.
There is no evidence that at this time she knew anything about a prior
mortgage. Indeed, it is not shown that she received any advice or
information bayond having the deed read to her word for word. It would
be against all principles if a lady so situated were held bound by such
Ealiance was placed by Mr. Doyne on two subsequent mortgages
executed by Achan after the death of Hulas, in which Moti Eam's debt is
mentioned. In one of them it is stated that Es. 30,000 is borrowed for
payment of the debt due to Moti Earn and others ; and it is shown that
shortly afterwards the sum of Es. 7,000 was paid to Moti Earn. But it
does not appear that those deeds were so much as read over to Achan, to
say nothing of the want of explanation.
The foregoing views render it unnecessary for their Lordships to enter
on the question whea Eaayet attained his majority, or on the question how
far the transactions of Achan could be of avail for the plaintiffs who were
not parties to them, both debated at the Bar. Their Lordships are clear
that nothing was done to give Moti Eam's security greater validity than
it originally possessed.
That reduces the questions in fche suit to one/ytz., the validity of the
mortgage by Hulas as against her successors. To prove its validity the
plaintiffs must show either that there was legal necessity for raising the
money by a charge on Khairati's estate, or at least that in advancing his
money Moti Earn gave credit on reasonable grounds to representations
that the money was wanted for such necessity. It has been above shown
14 All. 428 INDIAN DECISIONS, NEW SERIES [Yol.
1892 that the plaintiffs neither averred nor attempted to prove necessity until
MAY 14. their case was being argued in the High Court. They laid their claim
under Hulas as if she were the absolute owner. On the appeal they were
PRIVY treated with great indulgence, being allowed in effect to amend their
COUNCIL, case. One effect of. Hira Lai's evidence is to show the untrustworthi-
~ ness of the statements in the mortgage bond on which the Subordinate
P c Judge relied to show that Moti Barn's advance was applied to defray
II t*28] marriage expenses of Enayet and the costs of the Lucknow suit.
I I.A, 196- Q ufc of thQ Rg 32_000 advanced nearly Rs. 26,000 were applied in paying
Sar. P.C.J. off h undiS) Rg 12,400 being due to Moti Ram himself. We are told
nothing of the amount of Enayet's expenses ; nothing of any rear-on why
they should be paid by his grandmother, instead of his father ; nothing of
the nature of the Lucknow suit except that it was for ancestral property ;
nothing to show that in March 1873 any costs at all hau beeu incurred by
Hulas. So that the statements in the bond receive no effectual support
and much contradiction from the new evidence.
But the plaintiffs rely on an entirely new cause of necessity, tn'z.,that
Khairati's money business, which had been carried on by Hulas under the
management of Lalji, was in a critical state, and that it was necessary to
borrow money in order to ward off total insolvency. On this point their
Lordships agree with the High Court in thinking the effect of Hira Lai's
evidence to be that at Khairati's death the business was solvent on paper,
but that there were bad debts the losses on which were never recovered,
though the business struggled on for a good many years. The view of the
High Court is that the widow ought to have wound up the business at once,
and that not having done so, she could not allege necessity to mortgage the
inheritance in order to keep the money business going. But they do not lay
down any general rule for suoh'cases.and they feel the difficulty of a decision
in the entire absence of authority. Their Lordships also feel great diffi-
culty, and they would require to know much more about the nature of
the business in question, and of the condition and fluctuation of this
particular business before venturing to endorse the opinion of the High
Their Lordships prefer to rest this part of the case on the entire
failure of the plaintiffs to discharge the burden of proof which lies
upon them. It has been above stated, in accordance with the often
cited case of Hunooman Persaud v. Munraj Koonweree (1) that, in
order to sustain an alienation by a Hindu widow  of the corpus of
her husband's estate, it must be shown either that there was legal
necessity for the alienation, or at least that the grantee was led on
reasonable grounds to believe that there was. But the plaintiffs have
not proved either actual necessity, even though Moti Ram believed that
there was such necessity, or that he ever made any inquiry on the
subject. He may have rested content with the vague and misleading
statements in the deed. He may have considered, as the plaintiffs have
considered in this litigation, that the question of necessity did not concern
him. He may have thought, as they apparently have thought, that he
was taking title under an absolute owner. Anyhow the plaintiffs have
not performed their legal obligation of proving that their ancestor per-
formed his legal obligation, which was to inquire and satisfy himself that
the widow from whom he was taking a charge upon her husband's
. (1) 6 M.I.A. 393.
AGHA ALI KHAN V. ALTAP HASAN KHAN 14 All. 430
inheritance had a proper justiOeation for so charging ifc. That is suffi- 1892
cient to defeat the suit. Their Lordships will humbly advice Her
Majesty to dismiss the appeal, and the appellants must pay the costs.
Solicitors for the appellants : Messrs. Lattey and Hart.
Solicitors for the respondents : Messrs. Fyke and Parrott. 14 ^ 420
14 A. 429 (F.B.) = 12 A.W.N. (1892) 187. 19
FULL BENCH. 6
Before Sir John Edge, Kt. t Chief Justice, Mr. Justice
Mahmood and Mr. Justice Knox.
AGHA ALI KHAN AND ANOTHER (Plaintiffs) v. ALTAP HASAN
KHAN AND ANOTHER (Defendants)* [9bh May, 1892.]
Muhammadan Law Shia sec't Waqf.
According to the law applicable to the Shia sect of Muhummadaus a waqf-bil-
wasiyat, or testamentary waqf, is not valid unless actual delivery of possession
of the appropriated property is made by the waqif (or appropriator) himself to
the mutawalli (or superintendenb appointed by the waqif).
 According to the same law the death of the waqif before actual delivery
of possession of the appropriated property by him 10 the mhtiwal'.i or the
beneficiaries of the trust renders the wagf null and void ab initio.
Consequently where the waqif dies, as mentioned above, before actual delivery
of possession of the appropriated property, the consent of his heirs to the testa-
mentary waqf cannot validate such waqif.
Distinction between waqf-bil-wasiyat and wasiyal-bil waqf explained.
[Dies., 25 A. 236 (252) (P,C,) = 30 I.A. 91 = 7 C.W.N. 465 = 5 Bom. L.R. 410 = 8
Bar. 397 ; R., 24 A. 231 ; 24 A. 257 (271) ; 28 A. 633 = a A.L.J. 387 = A.W.N.
(1906) 146 ; 2 A.L J. 519 (526) ; 7 A.L.J. 1095 (1114) ; 8 A.L.J. 1154 (1156)
= 12 Ind. Gas. 730 (731) ; 2 O.O. 115 (131).]
THIS was a reference to the Full Bench made at the instance of
Mahmood and Young, JJ. The facts of the case out of which the reference
arose are very fully stated in the order of reference made by Mahmood, J.,
which is a follows :
ORDER OF RFERENCE.
MAHMOOD, J. The parties to this litigation are Shias, and their
.relative positions appear from the following pedigree :
Muhammad Ali. Fazilat-uo-ni8sa =
I Bu Ali.
I I 1
Jafar Ali. Kanizak Fatima = Amjad Ali Eban
I Mushtak Ali. (plaintiS No. 2;.
Agha Ali Amina Begam (defendant No, 3)
(plaintiff No, 1) = Altai Hasan (defendant No. 1).
Bardar Hasan (defendant No. 2).
* First Appeal, No. 85 of 1888 (connected with F.A. No-. 94 of 1888) from a decree
of Munsbi Kulwant Prasad, Subordinate Judge of Gawnpur.
14 All. 431 INDIAN DECISIONS, NEW SERIES [Yol.
1892 Muhammad Ali, whose name appears in the pedigree, was a Muham-
MAY 9. madun of the Shia sect, and owned considerable estate including the
properties which form the subject-matter of this suit, viz.:
FULli (l) Mauza Eampur.
.BENCH. (2) Narkhas.
7'r, (4> Hafizpur.
WN ^ ^ pacca houses known as Anarwala, in Lucknow.
' ' On the 3rd of November 1863, he executed a deed which purported
' to set; apart the above-mentioned four villages and two houses, the
properties in suit, as waqf to be administered by the Mujtahid-ul-asr t
Muhammad Taqi, and his descendants, &o., for certain  religious
and charitable objects specified in the deed. The deed purports to be a
formal document and is a lengthy one, and it is a question in this case
whether it is to be regarded as a will or as a waqf-nama, that is, a deed of
On the 14th of November 1863, Muhammed Ali executed another
deed purporting to make a gift of a village, Ghandpur, to make provision
for Musammat Naim-un-nissa, widow of his deceased son Jafar Ali.
Similarly, on the 23rd of November 1863, he executed another deed
in which, after reciting the provision ho had made under the earlier two
deeds, he purported to convey by gift the rest of his estate to his daughter
Musammat Kanizak Fatima.
Again, on the 27th of November, 1863, he executed another document
in which he in brief terms recapitulated and confirmed the provisions of
the three earlier deeds.
Muhammad Ali died on the llth of Dacember, 1863, leaving Musam-
mat Kanizak Fatima as his only heir u,nder the Shia law of inheritance.
It is also not disputed that at his death she obtained possession of the
properties now in dispute, but on this point there is a question between
the parties whether such possession was as absolute proprietor or as
mutawalli of the waqf, which the deed of the 3rd of November, 1863,
purported to create, and the deed of the 27th of November. 1863, to
confirm. It is, however, admitted that in the Government Kevenue
Eecords mutation of names took place in her favour in respect of the
four villages in suit, and her name was entered as proprietor instead of
her deceased father Muhammad Ali.
Matters stood thus, when on the 7th of November, 1864, the Mujtahid-
ul-asr, Muhammad Taqi, whom Muhammad Ali's deed of the 3rd of
November, 1863, purported to appoint as mutawalli of the waqf property
(namely, the four villages and two houses in dispute) instituted a suit
for possession of the aforesaid property, basing his claim upon his right
as mutawalli under Muhammad Ali's deed of the 3rd November, 1863.
The suit was instituted against Musammat Kanizak Fatima, and she
defended it by a writ-  ten statement dated the 24th of July, 1865,
in which she stated inter alia that her father had never given effect to
the waqf by delivery of possession to the proposed mutawalli ; that
it had therefore become null and void ; that, notwithstanding this cir-
cumstance, the aforesaid Muhammad Taqi had been asked to accept the
trust upon the conditions prescribed by the deceased Muhammad Ali,
but had definitely refused to accept the terms of the trust, and was there*
fore no longer entitled to claim the possession of waqf property.
This plea appears to have been allowed by the District Judge (Mr. B. Sapta)>
who decided the suit, dismissing it on the 20th of January, 1866,
AGHA ALI KHAN V. ALTAF HASAN KHAN
Referring order, printed by the Court.
The suit of Muhammad Taqi having thus been defeated, Musammat
Kanizak Fatima appears to have continued in undisturbed possession of
her father's estate, including the villages and houses now in dispute. Then
followed certain transactions which may be mentioned here.
On the 14th of October, 1881, Musammat Kanizak Fatima executed
a will of which the scope and objects are best represented in the opening
sentence, which runs as follows :
Whereas God in Hia mercy has blessed this helpless being (the