1. The substantial question, involved in this appeal is whether in view of the nature of the dedication in a wakf, the trust created by the same was for a public purpose of a charitable or religious nature, so as to attract the operation of Section 3, Charitable and Religious Trusts Act (14 of 1920). One Munshi Mahamad Manwar Mia executed a wakfnama on 25th Baisakh, 1284 B.S. which contained provisions to the following effect:
Hence I of my own accord create the wakf (dedicated in the name of the God) i.e. create the same as wakf for ever in respect of properties mentioned in the sub-joined Sch. 1 the sadar jama of which and the names of the Mouza of which are stated below. There is a brick-built mosque established by me in my own family dwelling house in Mouza Keroa and I have personally established a second brick-built mosque in the southern portion of the Munshirhat in village Char Matua where my father used to live. The Jumma and Panchagana Namaj (five daily prayers) and the Khatantorapi and the Torapi of the holy Ramjan Sharif are being read all along in the said mosque for spiritual benefit of the deceased persons and travellers and wayfarers and other persons who happen to be present in both the mosques at the time of Ramjan Sharif are treated with breakfast. There are some students in the mosque established in my own house and there are 2 khatibs (leaders in prayer) engaged in the 2 mosques. Besides those, travellers and wayfarers of our own country and foreign countries come there. Hence I create as wakf in the name of the God the properties mentioned in Sch. 1 in order to perform the said acts with my own expenses specially with a view that my poor relations and helpless widows in the neighbourhood may get something in the name of the God.
As regards the properties specified in Sch. 1 which were endowed as wakf in the name of the God from the surplus profit thereof, that may remain after paying Government revenue collections charges and expenses, etc., of litigation if any that may arise in connection with the same after deduction of the expenses for the oil, lights, beddings, for repairs of the said 2 mosques and the pay of the 2 Khatibs and Moazzin and the diet of the students, travellers and wayfarers and expenses for Idd, Ramjan Sharif, Torapi, Khatam Torapi, Iftari, Moydani, Dured Khani, Soberat and the allowance due to my old poor relations and Mokhannis (poor) and the charges for the repairs of bridges and roads, etc., whoever may be the Mutwali for the time being, shall get a pay at the rate of Rs. 20 per mensem and whatever amount may then be left as surplus shall remain in the tahbil of the Mutwali upto his lifetime for the improvement of the mosque, and the Mutwali keeping the mosque in their proper condition shall with the said money purchase any property and include the same within the properties mentioned in Sen, 1 in the aforesaid way.
2. There can be no doubt that on the wording of the statute that the Charitable and Religious Trusts Act 1920 applies only to those cases where the entire benefit under the wakf in trust is allotted to public purposes and not where the purpose of the trust is partly public and partly private. The Act of 1920 covers such trusts only as are created or exist for a public purpose only and we have to look to the real substance of the trust and the primary intention of the creator of the trust in every case: see Shabbir Husain v. Ashiq Husain AIR 1929 Oudh 225.
3. The question in the case before us, therefore, is whether the dedication in favour of the poor relations of the creator, destroyed the public nature of the trust. The intention of the wakf has to be taken into consideration in this behalf. That intention has to be gathered from the wakfnama itself, in which the different items of property contained in two separate schedules were dedicated to different purposes. The properties mentioned in Sch. 2 of the wakfnama were specifically dedicated for the benefit of the heirs of the wakf and the same was in course of time partitioned among those heirs. The other items of property mentioned in Sch. 1 were dedicated as mentioned in the wakfnama in the name of God and in addition to the public religious and charitable purposes enumerated in the deed of endowment, mention was made of the performance of acts specially with a view that poor relations and helpless widows in the neighbourhood might get something in the name of the God. Taking the wakfnama as a whole and looking at the substance of the trust as created, the intention of the creator was nothing but the creation of a trust for a public purpose of a charitable and religious nature and the charity to poor relations who were classed with the helpless widows in the neighbourhood, did not in our judgment, take away anything from the public nature of the trust created in respect of the property mentioned in Sch. 1 of the wakfnama. The poor relations of the creator of the trust were classed amongst other members of the public and there can be no question that they fell within that class. The test whether a charity is public or private is to see whether the class benefited is one which extends to a substantial body of the public. The extensiveness of the nature of the charity has to be kept in view in applying the test and the poor relations of the wakf, in the case before us, were undoubtedly members of a class of an extensive character: see Shaw v. Halifax Corporation (1915) 2KB 170.
4. The result of the decision we have arrived at, as mentioned above, is that the Court below is right in holding that the wakf of Munshi Mahamad Manwar Mia in respect of property in Sch. 1 as given in the wakf deed is a wakf of a charitable and religious nature created for public purposes as contemplated by Section 3 of the Charitable and Religious Trust Act (14 of 1920). The appeal is dismissed with costs.