Das Gupta, C.J.
1. The plaintiff is the appellant before us. The suit out of which this appeal arises is for a declaration that the property mentioned in the schedule annexed to the plant is wakf property and for appointment of the plaintiff to the office of Mutawalli and for putting the plaintiff in the management of the schedule property. In order to determine the question, which was raised at the hearing of the appeal, it would be necessary to refer to the averments made in the plaint. The plaintiff is the Muslim Orphanage, a registered body, and it has filed the present suit by its Secretary. Defendants 1 to 4 are the descendants of the sister of the settlor and Defendant 5 and 6 are transferees of the properties mentioned in the plaint.
In the plaint it is alleged that one Abdul Azeez made a deed of trust on 25-9-1937 (where-by he made the property in question a wakf) for the maintenance and support of his family with an ultimate benefit expressly reserved in favour of the plaintiff and the charitable purposes for which the Society was founded. It is further alleged is the plaint that defendant I became a Mutawalli, but on 21-12-1946 she in conjunction with Defendants 2 to 4 conveyed the suit property to Defendant 5 on sale in utter defiance of the wakf and her office.
Defendant 5 in his turn conveyed it to Defendant 6 who now holds the same. In para 6 if the plaint it is alleged that the plaintiff, as one named for the office, though ultimately, is willing to be appointed to it presently and put in management of the schedule property so that it may be preserved for indigent Muslim orphans who are the final beneficiaries under the wakf. The plaintiff prayed for a declaration that the schedule property was wakf property and for appointing the plaintiff to the office of Mutawalli and to put the plaintiff in the management of the scheduled property.
2. Before proceeding further it would be necessary to set out shortly the terms of the said wakf deed. By the said deed the settlor inter alia provided that the trustee appointed by the said deed shall out of the rent and income of the said hereditament pay all rates, taxes, assessments due in respect of the trust premises or any part thereof and the costs of executing repairs to the trust property and after meeting the expenses, divide and pay the net proceeds amongst defendants 1, 2, 3 and 4. It should be mentioned that the said Defendants are the children of the sister of the settlor named Safoorbi.
The deed further provided that in case of the demise of any one of the said persons his or her respective share in the said proceeds shall be paid to his or her lineal descendants in the nearest degree to such person the latter's share shall be distributed equally among such lineal descendant or descendants and irrespective also of the sex of intermediate ancestors of such lineal descendant or descendants. The final clause of disposition in the said deed was to the following effect:
'That in case all lineal descendants of the said Safoorbi are extinct the net proceeds shall be paid to the Mohammadan Orphanage for the benefit of the orphans.'
As to the office of Mutawalli the deed provided that after the demise of the settlor the office of Mutawalli shall devolve upon the Defendants 1 to 4 in the order mentioned in the said deed and thereafter upon Shamsuddin's eldest male descendant who is in the nearest degree to him. By Clause (10) of the said deed it was provided that after all the lineal female descendants of Safoorabi are extinct then the Secretary of the Mohammadan Orphanage, or any person in whom the trusts of the Mohammadan Orphanage might vest, would become the Mutawalli.
3. The plaintiff's case is that the Mutawalli in conjunction with the other Defendant's had sold the suit property and was guilty of malfeasance and breach of trust and it has become therefore necessary to preserve the said property for indigent muslim orphans who are the final beneficiaries under the wakf, and the reliefs claimed in the suit should be granted.
4. At the hearing before the trial Court number of issue were raised. One of such issues was; whether or not the deed dated 24-9-1937 executed by Abdul Aziz refer to the Muslim Orphanage i.e., the plaintiff institution. One other issue to which specific mention should be made is issue No.6 which was to the following effect:
'Is the suit maintainable in view of Section 92 C.P.C. since the sanction of the Deputy Commissioner has not been obtained?'
The trial Court found in favour of the plaintiff on all the issues and decreed the suit. On appeal the lower appellate Court reversed the said decree and dismissed the suit. But such reversal was only on the ground that as no prior sanction has been obtained from the Deputy Commissioner under Section 92 of the Code of Civil Procedure the suit was not maintainable. It is against the said decision of the lower Appellate Court that the present appeal has been filed.
5. Before us it was contended by the learned Advocate for the Appellant that the view taken by the Lower Appellate Court viz., that sanction of the Deputy Commissioner was necessary for the institution of this suit and as no such sanction was obtained the suit is not maintainable is clearly wrong. The learned Advocate contended that such a sanction will be necessary, and Section 92 of the Code of Civil Procedure will be applicable, only where the trust in question is a public trust.
But in this case the trust was a private trust and therefore no such sanction was necessary. The learned Advocate further urged that the lower appellate Court was wrong in holding that the trust in question was a public trust. In support of his contention the learned Advocate referred us to the provisions of the Mussalman Wakf Validating Act, VI of 1913 wherein it has been enacted that it shall be lawful for any person professing Muslim faith to create a wakf for maintenance and support, wholly or partially, for his family, children or descendants, provided the ultimate benefit in such cases expressly or impliedly is reserved for the poor or for any other purposes recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character.
In this case, the learned Advocate urged, even if we hold that the ultimate benefit was given to the orphans then also the wakf in question would be a valid wakf in view of the said provisions of the Mussalman Wakf Validating Act, 1913, and on the construction of the said deed we should hold that the ultimate benefit was given to the plaintiff, that is the Muslim Orphanage which is a private body and not to the public.
6. From the arguments of the learned Advocate for the Appellant two points arise for our consideration: (a) whether the ultimate benefit in this deed was for the orphans or to the Mohammadan Orphanage, which has been found by both the Courts to be same as Muslim Orphanage. i.e., the plaintiff; (b) even if the ultimate benefit be said to have been given to the orphans and not to the plaintiff as such, could it be said that the wakf in question was a public wakf. I shall take the second of these two questions first. That question in my opinion presents no difficulty.
It seems to me to be clear, on a reading of the terms of the said wakf deed, that the ultimate benefit was given to the orphans as such and not to the Mohammadan Orphanage. The material clause to which I have already referred, provided that in case all lineal descendants of the said Safoorabi are extinct the net proceed shall be paid to the Mohammadan Orphanage for the benefit of the orphans. Thus, by the said clause the ultimate benefit is not given to the Mohammadan Orphanage as such but the Mohammadan Orphanage for the benefit of the orphans. In other words, the ultimate beneficiaries under the terms of the said deed are the orphans but they are to receive such benefits through the Mohammadan Orphanage.
In other words, the Mohammadan Orphanage is simply the agency through which the benefit to the orphans is to accrue. On this view of the mater it seems to be that the ultimate beneficiary of the trust deed is not the Mohammadan Orphanage as such, but the orphans themselves. Even if we hold that the ultimate benefit is given to Mohammadan Orphanage, even then having regard to the objectives of the institution the ultimate beneficiary would be the orphans.
I have already mentioned that the concurrent finding of both the Courts is that in referring to the Mohammadan Orphanage (Muslim Orphanage) in the deed, the Association of the plaintiff was referred to. Although some arguments were advanced before us by the learned Advocate for the respondent to show that this finding is wrong, we are unable to accept the same. There is evidence on record to show that what was originally the Mohammadan Orphanage has been subsequently transformed into Muslim Orphanage. From the rules of the Muslim Orphanage, however, it appears that the objects of the said Orphanage is to board, lodge, clothe, and educate necessitous muslim orphans.
According to said objects, every orphan admitted into the institution shall receive general education of at least the primary grade together with vocational education of such nature and standard as to enable him to earn his living and be economically self-reliant on leaving the institution. This being the object of the plaintiff Association it seems to me that any benefit which accrues to the said association really accrues for the benefit of the Orphans in general. Hence, this part of the contention of the learned Advocate, for the Respondent cannot be accepted as sound.
7. I shall now deal with the question as to whether or not, in spite of the fact that the ultimate benefit would go to the orphans the trust in question could be said to be a private trust. On this point, as already mentioned, the learned Advocate for the appellant has referred us to the provisions of the Muslim Wakf Validating Act 1913. In my opinion, the provisions of that Act throw no light on this question. All that it provides is that in spite of the fact that by a wakf deed provision has been made for the maintenance and support wholly or partially of the family, children and descendants of the settlor, the wakf shall be valid, provided the ultimate benefit is reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character.
The effect of the said Mussalman Wakf Validating Act, 1913, is merely to validate wakfs of this nature, which prior to the date of the dais Act was held on the authority of the judicial decisions to be invalid.
But the said Act, on the question as to whether or not such wakfs are private or public wakfs, is silent. The question, therefore, has to be determined on reference to the judicial decisions on this point. Prior to the date when the said Mussalman Wakf Validating Act came into force, the law was as settled by the judicial decisions was that a wakf was valid if there was a substantial dedication of the property to charitable use at some period of time or other, but if the primary object of the wakf was the aggrandizement of the family and the gift to charity was illusory, whether from its uncertainty and remoteness the wakf was invalid and no effect could be given to it: Abul Fata Mahomed Ishak v. Rasamaya Dhur Chowdhri ILR 22 Cal 619; 22 Ind App. 76 (PC) (A).
The Mussalman Wakf Validating Act no doubt altered the position. But as I have said before it does not mention whether or not such wakf would be a private wakf or a public wakf. Although the Mussalman Wakf Validating Act has changed the law on this point, still the decision of the Privy Council affords a guide for determining whether a particular wakf should be considered a private wakf or a public wakf. In my opinion, if the primary object of the wakf is aggrandizement of the family, although there may be an ultimate and remote benefit reserved for charitable and religious purposes, it would be a private wakf.
But if, on the other hand, the substantial benefit is reserved for such religious or charitable objects although some minor benefit is given to the members of the family or their descendants the wakf in question should be considered as a public wakf. This is also the view which was taken by the Allahabad High Court in the case Muhammad Shafiq Ahmad v. Muhammad Mujtaba : AIR1928All660 . Mr. Justice Weir in the course of his judgment referred to the three Privy Council cases viz. Mohammad Ahsanullah v. Amarchand 17 Ind App 28 (PC) (C) Mujib-un-nissa v. Abdul Rahim, 28 Ind App 15 (PC) (D) and Mohammad Munawar Ali v. Razea Bibi 32 Ind App 86 (PC) (E) and observed that although it is true that in these three cases their Lordships were considering a question which has now been finally settled by the wakf Validating Act, namely, whether a wakf for the benefit of the wakif's family was or was not void if it created perpetuity, but still they can be taken as a guide in determining whether the wakf in question was or was not a public trust.
The decision on this question in the said Allahabad case was made on a consideration of the amount of benefit which was given either to the charities or to the members of the family. On analysing the terms of the wakf deed in question the said Court came to the conclusion that substantial benefit accrued to the members of the family and not to the religious or charitable purposes and therefore the wakf in question was a private wakf. Weir J. in his judgment came to the definite conclusion that if the wakf with which his Lordship was concerned constituted a trust for the benefit of the Mutawalli's family so long as any member of that family survived, that trust was a private trust even though the ultimate trust is for a charitable purpose.
I agree with the view taken in the said caes. In my opinion also trusts of this nature, where the real benefit is given to the family although there may be a remote and ultimate benefit contemplated for charities, are in essence private trusts. That being so, I cannot accept the view taken by the lower appellate Court, namely, that the trust in the present case was a public trust.
8. But then the question remains as to whether it was still necessary in trusts of this nature to obtain sanction of the Deputy Commissioner under Section 92 of the Civil Procedure Code. In our opinion, in cases of this nature what has to be seen, in order to determine whether such sanction is necessary, is what relief the plaintiff is asking in the suit. In other words, what has to be ascertained is the nature of the right which the plaintiff in a suit relating to trusts of this nature is trying to enforce.
If the plaintiff is trying to enforce any individual right of its own, then no sanction under Section 92 of the Code of Civil Procedure would be necessary. But if the right which is sought to be enforced is a public right then, in my opinion, sanction under Section 92 of the Code of Civil Procedure would be necessary for the institution of such a suit. This was also the view taken by their Lordships in the said Allahabad Case, to which I have already referred i.e., : AIR1928All660 .
Their Lordships, after discussing the facts of the case, came to the conclusion that even though the wakf in question was a public wakf, the plaintiff in the said case was merely seeking to enforce his private rights under it, and that being so, there was no necessity to obtain sanction under Section 92 of the Code of Civil Procedure. The position in this case would be a converse one. But in my opinion the principle on which the said decision was based would be applicable to the present case.
What has to be determined is the nature of right which the plaintiff is trying to enforce in this suit. If the right which the plaintiff is trying to enforce in this suit is a public right then sanction under Section 92 of the Code of Civil Procedure was necessary. In order to determine what right the plaintiff in the present case is seeking to enforce, we have to refer once again to the plaint filed in this case. I have already referred to the material terms of the plaint.
It seems to me that what the plaintiff is seeking to enforce is not its own rights but the right of the indigent Muslim orphans which is a public right. It is true that the plaintiff has asked for the appointment of its Secretary as Mutawalli, but that prayer has been made not in assertion of its own rights, but for the maintenance of the rights of orphans. The right of the plaintiff to be appointed as Mutawalli under the deed would arise only when there is a total extinction of the lineal descendants of the sister of the settlor.
The plaintiff cannot claim such right on his own account so long as any one of the lineal descendants of the sister of the settlor is alive. Therefore, this suit could not have been a suit filed by the plaintiff in assertion of its own rights. It must be held to be a suit filed for the enforcement of the right of the indigent Muslim orphans, that is to say, for the enforcement of a public right. In that view of the matter we are of opinion that it was necessary to obtain sanction of the Deputy Commissioner under Section 92 of the Code of Civil Procedure. Thus we hold, although on a different process of reasoning, that the view taken by the lower appellate Court, viz., that such leave was necessary is correct.
9. In the result, therefore, this appeal fails and is dismissed with costs.
10. I agree.
11. Appeal dismissed.