1. This is an appeal by the accused against his conviction by the Chief Presidency Magistrate, Bombay, under Section 10, Mussalman Wakf Act (42 of 1928), for failure to comply with Sections 3 and 5 of the said Act. The facts are not in dispute so far as they are material for the present purpose. The accused with others collected monies from Dawoodi Bohras at Sunnel, which is in the Indore State, for the purpose of building a madressa at Sunnel, and a madressa was duly built. On 26th February 1932, the trustees of the madressa purchased an immovable property at Bhoiwada in Bombay out of the funds belonging to the madressa, and on 7th December 1934, they executed a declaration of trust, which is Ex.D, admitting that they had purchased the Bhoiwada property out of monies colcted from Dawoodi Bohras at Sunnel for the support of a madressa at Sunnel, and declaring that they held the property upon trust, in substance, for the madressa. The appellant was called upon to deliver accounts under Section 3, Mussalman Wakf Act, and he failed to do so. Thereupon the Court, that is the Chief Judge of the Small Cause Court at Bombay who is the Court for the purposes of this case holding that the appellant fell within the terms of the Act, directed that the papers be sent to the Public Prosecutor of Bombay in order that he might take the appropriate action. This was done, and the learned Chief Presidency Magistrate convicted the accused under Sections 3 and 5, Mussalman Wakf Act.
2. Four points have been taken in appeal. The first is that the necessary sanction to the prosecution has not been given. By the Mussalman Wakf (Bombay Amendment) Act which is Bombay Act, 18 of 1935, Section 13, there was added to the principal Act Section 10-B which directs that 'no prosecution under this Act shall be instituted except by or with the previous sanction of the Court given in the prescribed manner.' The prescribed manner means the manner prescribed by rules under the principal Act. Rule 20 of the Bombay Mussalman Wakf Rules 1936, provides that the order of sanction shall state the offence in respect of which the accused is to be prosecuted. In my opinion, the last sentence of the judgment of the learned Chief Judge of the Small Causa Court in which he holds that the appellant has committed default by failing to file particulars and accounts, as required by Sections 3 and 5, Mussalman Wakf Act, in respect of this property and has thus rendered himself liable to be prosecuted under Section 10 and in which he directs the papers to be sent to the Public Prosecutor for taking necessary action against the appellant sufficiently complies with Rule 26 though it might be better in future in order to avoid any question, that formal sanction should be given in dependently of the judgment.
3. The second point taken is that a trustee cannot create a wakf and the third point is that there can be no wakf of a foreign charity. These points can be dealt with together, because they both turn on the definition of 'wakf' and the terms of Section 3 of the principal Act. Section 3 provides that with-in six months from the commencement of this Act every mutwalli shall furnish to the Court within the local limits of whose jurisdiction the property of the wakf of which he is the mutwalli is situated, a statement containing the particulars prescribed. So that if one finds a mutwalli with property within the local limits of the Small Cause Court at Bombay, it seems to me clear that he has to furnish the required particulars, although other properties of the wakf may be situate and those who benefit from the wakf may be resident, outside Bombay or outside British India. That disposes of the contention that the Act does not apply to a foreign wakf. It applies to any property of a wakf within the jurisdiction of the local Court.
4. Then we have to see what is the meaning of 'wakf' in order to deal with the point that a trustee cannot create a wakf. Now, 'wakf' is defined in Section 2 (e) of the principal Act and we are only concerned with that definition and we are not concerned with the question often difficult as to whether a particular trust constitutes a wakf under Mahomedan law. Under the definition in this Act 'wakf' means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable. It is not disputed that the purpose of benefiting the madressa at Sunnel is a purpose recognized as charitable by the Mussalman law; but it is argued that there has been no permanent dedication by a person professing the Mussalman faith, because it is said that the only person who can dedicate a property must be a beneficial owner and a trustee cannot dedicate. I know of no authority for that proposition, though of course a trustee must keep within the terms of his trust, but in any event the dedication here was not merely the declaration of trust of 1934 by trustees. The dedication is constituted by the collection of money on terms which made it charitable in the hands of the trustees who held it, their subsequent investment of that money in immovable property, and their declaration of a trust of that immovable property for the charitable purpose for which it was held. That, to my mind, constitutes a good dedication. In my opinion therefore the learned Chief Judge of the Small Cause Court was right in holding that this was wakf property and the learned Chief Presidency Magistrate was similarly right.
5. Then the fourth point taken is that the conviction under Section 5, Mussalman Wakf Act, is bad, because Section 3 cannot come into operation unless Section 3 has been complied with. It is not an argument which invokes my sympathy, because it really enables the accused to escape from the consequences of a breach of Section 5 by his own wrong in committing a breach of Section 3; but on the wording of Section 5, I do not see any answer to the argument. Section 5 provides that within three months after 31st March next following the date on which the statement referred to in Section 3 has been furnished and thereafter within three months of 31st March in every year, every mutwalli shall prepare and furnish to the Court a certain statement; but unless a statement has been furnished under Section 3, there is no date within which he is required to furnish a statement under Section 5 and it seems to me that on the wording of Section 5, there cannot be an offence under that section unless a statement has been delivered under Section 3. I think therefore that we must set aside the conviction under Section 5, but we uphold the conviction under Section 3. The fine of Rs. 200 imposed under Section 5 to be refunded.
6. I agree.