1. This rule was issued on the opposite party to show cause why this Court should not set aside the dismissal on a preliminary point of the petitioner's application for an order on the opposite party to file accounts under S, 3, Mussalman Wakf Act 42 of 1923. The preliminary point raised was that Act 42 of 1923 is not applicable to this wakf inasmuch as it is a wakf of the nature described in Section 3, Wakf Validating Act 6 of 1913, and is thus excluded from the operation of Act 42 of 1923 by Section 2(e) of the Act. Some of the terms of the wakf are as follows: (1) as long as the founders live they shall appropriate one-third of the proceeds of the wakf properties themselves, and apply two-thirds to other charities; (2) after their death two-thirds of the proceeds of the wakf properties shall be enjoyed by their children and the remaining one-third should go to meet the charities; and (3) in the event of non-existence of any child begotten by the founders, such a person from among their relatives as may be most nearly related to them shall be appointed mutwalli and shall get Rs. 10 a month as a salary, shall live in their dwelling house and shall appropriate the balance of the proceeds of the tanks and gardens left after defraying the expenses of persons attached to the Madrasha and Khankah.
2. The question then is whether this is a wakf coming under Act 6 of 1913 or under Act 42 of 1923. Act 6 of 1913 only applies to a wakf in which the ultimate benefit is expressly or impliedly 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: vide Section 3(b) of the Act. It is quite clear therefore that in the present case Act 6 of 1913 has no application because the ultimate benefit is not reserved for the poor or for other charitable purposes. The ultimate benefit goes to the relative of the founders who will be appointed mutwalli. In addition to Rs. 10 as his salary, he is to live in the dwelling house and to appropriate the balance of the proceeds of the tanks and gardens left after defraying the expenses of persons attached to the Madrasha and Khankah. It is clear from this that certainly the whole of the ultimate benefit is not reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable of a permanent character.
3. The learned Judge therefore in holding that the wakf is in the nature of a wakf described in Section 3, Act 6 of 1913, is not correct. On the other hand the wakf clearly comes under the definition of a wakf contained in Act 42 of 1923. Therefore the learned Judge was not right in dismissing the application on this preliminary point. The rule is made absolute and the case sent back to the District Judge for disposal in accordance with law on the other questions which arise. We make no order as to costs of this rule.
4. This question raised by this rule turns, on the construction of certain provisions of the Mussalman Wakf Act (Act 42 of 1923). It appears that the petitioners and opposite parties 2 and 3, who are the Mussulman inhabitants of village Sahapur in the District of Murshidabad and are interested in the wakf created by one Hossain Ally and his wife on 19th July 1863 by a deed of wakfnama which concerned properties situate in Calcutta and in the districts of Murshidabad, Burdwan and Birbhum, applied before the District Judge, Murshidabad, for an order on the opposite party 1 to file a statement under Section 3 of the Act. They alleged in the said application that opposite party 1 was not managing the wakf estate according to the terms of the wakfnama but was misappropriating the wakf fund. The learned District Judge has thrown out the said application on the ground that the wakf is of a nature described in Section 3 of the Wakf Validating Act 6 of 1913 and as such the wakf clearly comes within the purview of the excepted part of Section 2, 01. (e), Act 42 of 1923, and the Act does not apply to the present case. We have read the wakfnama and it appears to us that one-third of the income of the wakf properties is devoted to the personal expenses of the founders of the wakf and the remaining two-thirds in paying the expenses of the students and teachers, in providing food to the travellers in the month of Ramzan and spending certain sums in the mosques in different places. Provision is also made for the succession of the mutwalliship the first mutwallis being the founder and his wife. Having regard to paras. 1 and 3 of the wakfnama it appears to us that the wakf is partly a public wakf that is devoted entirely to religious purposes and partly a private wakf. The wakf is really a mixed wakf and to such a wakf the provisions of the Mussalman Wakf Act are clearly applicable.
5. This was the view taken by Wazir Hussain, C.J., of the Oudh Chief Court in the Full Bench decision of Shabbir Hossein v. Ashiq Hossein AIR 1929 Oudh 225. The learned Judge is clearly in error in holding that the wakf in the present case is a wakf described in Section 3, Mussalman Wakf Validating Act of 1913, and therefore comes within the exception of Section 2(e) of the Act of 1923. We are of opinion that Section 3, Mussalman Wakf Validating Act, applies to wakf which are in the nature of family settlements, pure and simple, where the ultimate benefit is expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious pious or a charitable purpose of a permanent character. We are supported in this view by an unreported decision of this Court in Civil Rules Nos. 872 and 873 of 1931. The result is that the order of the learned District Judge must be set aside and he is directed to re-hear the application which he has thrown out on the preliminary ground for the reasons given above I agree that this rule must be made absolute.