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Kawsar Alam Mutwali Penda and ors. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case Nos. 2691 and 3344 of 1957 and 290, 1116, 1513, 3176 of 1958
Judge
Reported inAIR1962Cal468,66CWN651
ActsTenancy Law; ;West Bengal Estates Acquisition Act, 1953 - Sections 2 and 6(1)
AppellantKawsar Alam Mutwali Penda and ors.
RespondentState of West Bengal and ors.
Appellant AdvocateNoni Coomar Chakravartly, ;Dipti Kana Bose and ;B.C. Ghose Roy, Advs. in Cvl. Revn. Case No. 1116 of 1958 and ;Prafulla Kumar Roy, ;Noni Coomer Chakravartty, ;Dipti Kana Bose and ;B.C. Ghose Roy, Advs
Respondent AdvocateJ. Mazumdar, A.G.P. and ;prodyut Kumar Banerjee, Advs. in Cvl. Revn. Case No. 1116 of 1958 and ;N.C. Chakravartty, G.P. and ;D.N. Basu, Adv. in Cvl. Revn. Case No. 3176 of 1958 and ;J. Mazumdar, A.G.P
Cases ReferredRamanathan Chetti v. Nurugappa Chetti
Excerpt:
- bachawat, j.1. this reference and the connected references raise the question whether muslim wakf land held partly for the purpose of providing allowances to the wakf's family, children or descendants is land held exclusively for religious and/or charitable purposes so as to at tract the protection of section 6(1)(i) of the west bengal estates acquisition act, 1953. this reference arises out of a petition by the mutwalli penda mohmmed wakf estate under article 226 of the constitution asking for an order directing the respondents to recall the notices issued under section 10(2) of the west bengal estates acquisition act, 1953 requiring the petitioner to give up possession of the khas wakf lands in the district of jalpaiguri and to forbear from giving effect to the notices and the orders.....
Judgment:

Bachawat, J.

1. This reference and the connected references raise the question whether Muslim Wakf land held partly for the purpose of providing allowances to the wakf's family, children or descendants is land held exclusively for religious and/or charitable purposes so as to at tract the protection of Section 6(1)(i) of the West Bengal Estates Acquisition Act, 1953. This reference arises out of a petition by the mutwalli Penda Mohmmed wakf estate under Article 226 of the Constitution asking for an order directing the respondents to recall the notices issued under Section 10(2) of the West Bengal Estates Acquisition Act, 1953 requiring the petitioner to give up possession of the khas wakf lands in the District of Jalpaiguri and to forbear from giving effect to the notices and the orders and decisions relating thereto. The petitioner has obtained a rule calling upon the State of West Bengal and the other respondents to show cause why the aforesaid order should not be made. The wakf has the interest of an intermediary in the wakf lands, By virtue of Section 4 of the West Bengal Estates Acquisition Act 1953 and; the notifications issued by the State Government thereunder all estates and the rights of every in, each such estates situated in the district have vested in the State free from all encumbrances. The Petitioner claims that he is entitled to retain the lands under Section 6(1)(i) of the West Bengal Estates Acquisition Act 1953 read with Sections 2(c) and 2(n) of the Act on the ground that the lands are held by him under a trust or endowment or other legal obligation exclusively for a purpose which is religious or charitable or both. Sections 6(1)(i), 2(c) and 2(n) of the Act are as follows:

6(1)(i); ''where the intermediary is a corporation or an institution established exclusively for a religious or a charitable purpose or both, or is a person holding under a trust or an endowment or other legal obligation exclusively for a purpose which is charitable or religious or both--land held in khas by such corporation or institution, or person for such purpose.'

2(c)--'charitable purpose' includes the relief of the poor, medical relief or the advancement of education or of any other object of general public utility.'

2(n)--'religious purpose' means a purpose connected with religious worship, teaching or service or any performance of religious rites.

2. The petitioner as the mutwalli of the wakf is merely a manager; the wakf property is, not vested in him. Nevertheless he represents the interest of the wakf in the wakf property; he is a person holding the wakf property under an endowment or other legal obligations for the purposes of the wakf, see Tribune Press, Trustees Lahore v. Income-tax Commissioner , Vidya Varuthi Thirtha Swamigal v. Baluswami, 48 Ind App 302: AIR 1922 PC 123. The wakf in question was created by Munshi Penda Mohammed by a deed of waktnama dated the 8th December, 1918. By this, deed substantial portions of the income of the wakf property are permanently dedicated for religious and charitable purposes such as the maintenance and upkeep of a mosque and a madrassa, the performance of religious festivals and ceremonies and the distribution of alms and cloths to the poor and the fakirs. But the deed also allocated substantial portions of the income of the property for payment of allowances to the wakifs descendants in perpetuity. The deed provides for payment of an allowance of Rs. 200/- per month to the wakif's grandson and his heirs from, generation to generation and an allowance of Rs. 25/- per month to the wakifs daughter and her heirs from generation to generation. The deed appoints the wakif as the first mutwalli and seeks to provide for a perpetual succession of the members of his family as mutawallis. Beyond doubt the wakf property is held by the petitioner mutwalli partly for charitable and/or religious purposes. But the petitioner is not entitled to the benefit of Section 6(1)(i) unless the property is held by him exclusively for those purposes. Now the wakf property is also held by him for the purpose of providing allowances to the wakifs descendants. The point in issue is whether these allowances are of a religious or charitable nature.

3. The wakif was a Sunni Mussalman and was presumably governed by the Hanafi School of Mussalman Law. Under the Hanafi Law even a provision by a wakif for his own maintenance and support during his life-time is a pious and meritorious act. The Prophet is reported to have said ''a man giving maintenance to himself is giving sadaqa see Seymor Vesey Fitgerald Muhammadan Law, 1961 edition, page 212; Meer Mahamed Israil Khan v. Sashti Charan Ghose, ILR 19 Cal 412 . And in all systems of Mussalman Law a wakif making a provision or the support of his wife or his children or his kindred is considered to be giving a sadaqa. A sadaqa is pleasing in the sight of God and the most excellent of sadaqa is that which a man bestows on his own family. But such a provision though a sadaqa is not a gift for a religious or charitable purpose under the Mussalman Law as administered by our Courts. On this ground the Privy Council held that a wakf was in valid if its effect was to give the property either wholly or substantially to the waktt's family, children and descendants, Sheikh Mohamed Ahsanulla Chowdhury v. Amarchand Kundu 17 Ind App 28(P.C); Abdul Gafar v. Nizamuddin, 19 Ind App 170 (PC), even though the ultimate benefit after the extinction) of the family was reserved for the poor or for other religious or charitable purposes, see Abdul Fata Mohamed Ishak v. Russomoy Dhur Chowdhury, 22 Ind App 76 (PC); Mujibannessa v. Abdul Rahim, 28 Ind App 15 (PC); Khajeh Solehman v. Salimullah, 49 Ind App 153: (AIR 1922 PC 107); Balla Mai v. Ataullah Khan , Beli Ram and Brothers v. Mohammed Afzal, Pak LR . But the wakf including the gifts to the wakif's children and descendants was valid if the property was substantially dedicated to charity, see Ramanandan Chettiar v. Vava Levvai Marakayar, 44 Ind App 21: AIR 1916 PC 86. The Wakf Validating Act, 1913 validated wakt's for the maintenance and support wholly or partially of the wakif's family, children or descendants, provided the ultimate benefit was reserved for the poor or for other religious and charitable purposes. This Act has now retrospective effect. But the point in dispute before us is not whether the wakf is valid but whether the provision in the wakf for the maintenance and support of the wlakif's family, children or descendants is of a charitable or religious nature. Now the Wakf Validating Act, 1913 does not declare that such a provision is of a religious or charitable nature; on the contrary Section 3 of the Act suggests that the purpose of such a provision is neither religious nor charitable. The decisions of the Privy Council authoritatively establish that the maintenance and) support of the wakil's family, children and descendants is not a religious or charitable object according to Mussalman Law. Neither the Wakf Validating Act 1913 nor the Shariat Act 1937 override the Privy Council decisions on this point, see Syed Mohiuddin Ahmed v. Sofia Khatun : AIR1940Cal501 . In this background we have to interpret (Sections 6(1)(i) of the West Bengal Estates Acquisition Act 1953 read with Sections 2(c) and 2(n) of the West Bengal Estates Acquisition Act, 1953.

4. For purposes of the Act, Section 2(n) exhaustively defines ''religious purpose.' Now the gifts of heritable allowances for the wakif's grandson and daughter are not connected with religious worship, teaching or service or with performances of any religious rite. The gifts do not satisfy the test of Section 2(n) and are not for a religious purpose as defined in thatsection. I may add that even apart from that definition these gifts are not for a religious purpose under Mussalman Law as administered by our Courts.

5. Section 2(c) gives a definition of charitable purpose. Now the gifts in question do not provide for the relief of the poor. The descendants of the wakif, rich and poor alike enjoy the allowances. Nor do they provide foreither medical relief or the advancement of education. Do these gifts satisfy the test; of general public utility? In applying this test the precise words of the definition are not to be governed by English decisions on the topic, see All India Spinners. Association of Mirzapur, Ahmedabad v. Commissioner of Income-tax, Bombay Presidency Sind and Baluchistan , and in the case of a Muslim wakf, the Court should be guided by the standard of Muslim Law and public opinion on the matter . The Privy Council thus construed the definition of charitable purpose in Section 4 of the Indian, Income-tax Act 1922 and those principles of construction apply well to the somewhat similar definition of charitable purpose in Section 2(c) of the West Bengal Estates Acquisition Act 1953. Judging the matter by the standard of Muslim Law and public opinion I find no element of general public utility in the gift to the wakif's descendants. The general public is not benefited by these gifts. Even Farran J. whose opinion in Fatimabibi v. Advocate General of Bombay, ILR 6 Bom 42, was approved by the Privy Council in did not consider that such gifts were charitable or were beneficial to the general public from the Muslim point of view.

6. Nowadays a wakf-al-al aulad is commonly regarded as a private trust and not as a trust for religious and charitable purposes, see Murtaza Reza Chowdhury v. Commissioner of Agricultural Income Tax, West Bengal, ILR (1953) Cal 85.

7. The definition in Section 2(c) of the West Bengal Estates Acquisition Act in some respects extends the meaning of charity as understood in English Law, but the definition is not exhaustive. Nevertheless, in order to satisfy the test of charity in the legal sense the gift must contain an element of public benefit see D.V. Arur v. Commissioner of Income Tax, Bombay, AIR 1946 Bom 44; Be Mercantile Bank of India (Agency) Ltd. : [1942]10ITR512(Cal) (Cal) (cases decided under Section 4 of the Indian Income Tax Act 1922). The allowances to the wakif's grandson, daughter and their descendants do not satisfy the test of charity in the legal sense.

8. In course of argument reference was made to the decisions in Umar Baksh v. Commissioner of Income Tax, ILR 12 Lah 725: AIR 1931 Lah 578. The Commissioner of Income Tax v. Jamal Mohamed, ILR (1941) Mad 862: AIR 1941 Mad 535. In the first mentioned case a provision in a wakf deed for maintenance of the wakif and his children has field not to be for a religious or charitable purpose within the meaning of Section 4 of the Indian Income Tax Act, 1922 on the ground that the Court ought not to be guided in the matter by the personal law of the wakif. This reasoning is contrary to the observations of the Privy Council in . We should be guided in the matter by the standard of Muslim Law and public opinion and being so guided we find that the gifts do not satisfy the test ofcharity. In the Madras case a provision in the wakf deed for the maintenance, education, marriage, funeral and other necessities of the poor and needy among the descendants of the wakif was held not to constitute a charitable purpose within the meaning o Section 4 of the Indian Income Tax 1922. J reserve my opinion on the question whether this case was correctly decided. I notice that in England perpetual trusts for the benefit of poor relations or descendants have been held to be charitables see Halsbury, 3rd edition, Vol. IV Article 494, page 216 and the cases referred to in Re, Compton; Powell v. Compton, 1945 Ch. 123.

9. I have therefore come to the conclusion that the provisions in the wakf deed for payment of allowances to the testator's descendants are not for religious or charitable purposes. The wakf property is therefore not held exclusively for religious and charitable purposes. Consequently the petitioner is not entitled to the benefit of Section 6(1)(i) of the West Bengal Estates Acquisition Act, 1953 and is not entitled to retain the lands in dispute. The Rule should therefore be discharged. In view of the above conclusion it is not necessary to consider whether some of the other provisions of the wakf deed satisfy the test of charity.

10. We pass the following order: The Rule is discharged. In all the circumstances of the case there will be no order as to the costs of the reference and of the rule. The interim orders, if any, may be discharged. This order will not be given effect for the period of three weeks from today.

Sinha, J.

11. The facts in this case are shortly as follows: By a registered deed of wakf executed on the 9th December, 1918. one Munshi Penda Mohammad, created a Wakf Estate known as the 'Penda Mohammad Wakf Estate' consisting of extensive properties in the District of Jalpaiguri. Under the said deed of Wakf, Munshi Penda Mohammad appointed himself as the first Mutwali and acted as such until his death. After his death, has son Nizamuddin Ahmed became the Mutwali in terms of the said Deed of Wakf. After the death of Nizamuddin, Tazimuddin a grandson of the Wakif by a pre-deceased son, became the Mutwali. After the death of Tazimuddin, the petitioner Kawsar Alam, son of the said Nizamuddin, was appointed as the Mutwalli of the said Wakf Estate by the Commissioner of Wakf, West Bengal. On or about the 2nd August, 1955 the Collector of Jalpaiguri, issued a notice under Section 10(2) of the West Bengal Estates Acquisition Act, 1953 (Act I of 1954) (hereinafter referred to as the said Act) calling upon the petitioner to surrender to the State Government the surplus lands in khas possession of the Estate, the same having vested in the State Government under the said Act. The particulars of the said lands are set out in a schedule annexed to the petition and marked with the letter 'A'. On the 5th October, 1955 the petitioner as the Mutwalli of the said Wakf Estate filed a petition before the Collector, stating that the said lands were exempted from acquisition under the provisions, of Section 6(1)(i) of the said Act as the same was held under a trust or an endowment for a purpose which was exclusively for a religious and charitable purpose. The petition was heard by the learned Collector, Estate Acquisition, Jalpaiguri the respondent No. 3 herein, who by his order dated 24-2-1956, rejected the same. It was held that under the deed of Wakf pecuniary benefits were reserved for the Wakif and his descendants and these were personal and individual benefits, as opposed to 'general' or 'corporate' benefits, and as such the trust or endowment was not exclusively for a religious or charitable purpose, and was not entitled to exemption under the provisions of Section 6(1)(i) of the said Act. Against this order an appeal was preferred to the Commissioner Presidency Division. The learned Commissioner, by his order dated 10th January, 1953 agreed with the Collector that the provisions by way of family settlement in a wakf Deed could not be held to be exclusively for a 'religious' or 'charitable' purpose within the meaning of the said Act and, therefore, the petitioners were not entitled to any benefit under Section 6(1)(i) of the said Act. Accordingly, the appeal was rejected. Thereupon, the petitioner has made this application under Article 226 of the Constitution, and on the 3rd April, 1958 a rule was issued by Mukharji J. calling upon the opposite party to show cause why an appropriate writ should not be issued upon them to recall, rescind or withdraw the impugned notices under Section 10(2) or the said Act and the decisions of the opposite parties Nos. 2 and 3 mentioned above and to forbear from giving effect to the same. This rule and several other rules relating to the acquisition of lands forming part of Wakf Estates came up for hearing before me on the 1st May, 1961. I considered that in all these rules a common question of law of great public importance arose and that they should be referred to a larger Bench. I, therefore, referred the matter to the learned Chief Justice for making such orders as he thought fit in this regard. The learned Chief Justice has now constituted this Special Bench for hearing the applications and the rules issued therein. In all these applications a common question of law arises, which is decided in this application, although in each case it has to be tested in the background of the particular provisions of the Wakf-Deed concerned. Before considering the point of law involved, it would be necessary to examine the relevant provisions of the said Act. Section 2 of the said Act contains definitions of the expressions ''charitable purpose' and religious purpose'. They are as follows:--

'(c) 'charitable purpose' includes the relief of the poor, medical relief or the advancement of education or of any other object of general public utility;

(n) ''religious purpose'' means a purpose connected with religious worship, teaching or service or any performance of religious rites;

12. The exemption claimed is under Section 6(1)(i) of the said Act. The relevant Provision runs as follows:--

'(i) Where the intermediary is a corporation or an institution established exclusively for a religious or a charitable purpose or both, or is a person holding under a trust or an endowment or other legal obligation exclusively for a purpose which is charitable or religious or both--land held in khas by such corporation or institution, or person, for such purpose including land, held by any person, not being a tenant, by leave of license of such corporation or institution or person'.

13. In order to consider the question as to whether the Wakf Estate in question comes within the aforesaid exemption, it is necessary to consider the provisions of the Deed of Wakf. This Deed, which is in the Bengali language, has now been officially translated. The founder of the Wakf states that he is a Musalman, and had by the grace of God earned much and acquired extensive properties. He then proceeds to state as follows:--

'Whatever is done for religion and for the sake of God is alone permanent and is the only thing that save the doer after death and it is the duty of a man to make provisions for the members of his family, his children and his heirs, and descendants, and it is a virtuous deed according to religion and so, I in sound health, in good faith, out of my own accord. ....create a Wakf.......'

14. The Wakif constituted himself the first Mutwalli during his own life time, and then prescribed the devolution of Mutwalliship amongst his descendants. A naib Mutwali was also to be appointed from his descendants. Out of the income of the Wakf Estate, was to be maintained, a mosque constructed by the Wokif, as also a madrasa attached thereto. There are provisions for religious festivals and the feeding of the poor. Over and above the expenditure required for the maintenance of the Wakf property, the Mutwalli was to get 10 percent thereor. Then we have the following provision:--

'The Mutwalli will be entitled to take as his own remuneration the balance remaining after deducting expenses under items Nos. (9) and (10) as well as expenses under schedules (ka) and (kha) below, from the income of the wakf property, and he will be entitled to spend the sum for his own work. In future, if the income of the wakf property increases the Mutwali will be entitled to spend the increased portion of the income for the improvement of the wakf property and for doing more good work or with the increased portion of the income he will be entitled to do some good and benevolent work.'

We next come to schedule (ka) which runs as follows:--

'My grandson Jaman Ajimuddin Ahmad shall get a sum of Rs. 200/- (Rupees two hundred) per month as his tankha (allowance) i.e. the cost of his maintenance and on his demise his heirs shall get the said tanka generationafter generation and by way of succession for ever.

(2) My daughter Sreemati Hiramannessa. Bibi shall get Rs. 25/- (Rupees twenty five) per month for her maintenance and on her demise her heirs shall continue to get the said tankha generation after generation for ever by way of succession.

(3) My Second wife Sreemati Bibijannesssa Bibi shall get RS. 30/- (Rupees thirty) per month during her life time as tankha i.e. as costs of her maintenance and on her demise none of her heirs shall get the same and it will be included in the wakf estate'.

15. It is not disputed that the payments to be made under schedule (ka) are not connected with services rendered in connection with any of the religious objects mentioned in the peed of wakf. The question that arises is, therefore, a very short one. In this Deed of wakf, one of the objects is to make provision for the relatives of the founder of the wakf. The wakif himself, as Mutwalli, as well as the future Mutwallis, derive certain personal benefits. Firstly, there is the provision for getting 10 per cent of the expenses and secondly, after spending the income of the wakf property on the objects mentioned above, the Mutwalli was entitled to spend the surplus for his 'own work' which, can only mean for his personal benefit. Next, there are the payments to be made under Schedule (ka). That being so, the question is as to whether the endowment or trust can be described as one exclusively for a religious or a charitable purpose, so as to come within the exemption provided in Section 6(1)(i) of the said Act.

16. I shall first of all consider the expression 'religious purpose'. It will be noted that the definition of the expression 'charitable purpose' is an inclusive definition and not an exhaustive one, whereas the definition of the expression 'religious purpose' is an exhaustive one, because the definition gives the meaning of it, and no other meaning can be imported. It may be appropriate here to note the provisions of Section 3 of the said Act. It lays down that the provisions of the said Act shall have effect notwithstanding anything to the contrary contained in any other law or in any contract express or implied or in any instrument and notwithstanding any usage or custom to the contrary. That being so, we must consider the expression 'religious purpose' only according to the definition given in Section 2(m) of the said Act. It is clear that the definition is a restricted and not a wide one. It is restricted to religious worship, religious teaching, religious service and the performance of any religious rites. An attempt was made before the lower Tribunal and also before us to argue that amongst Mohammedans, the providing of maintenance for one's descendants is a religious rite. This contention has been rejected by the lower court and I have no hesitation in rejecting it now. The meaning of the term 'rite' is given in the Oxford Dictionary as a religious or a solemn ceremony or observance; 'religious service''means congregational worship. Providing maintenance for one's descendants may he considered as a commendable act amongst Mohammedans or even, a pious act. The desire to provide for future generations is not exclusive amongst any particular community, but is an universal trait of human character. That however does not make it a sort of religious service or the performance of a religious rite. I think that the learned Commissioner rightly observed that such a construction would be doing violence to the English language. That leaves us which the expression 'charitable purpose' and the point to be considered is as to whether the act of providing maintenance for one's self and relatives can be called a charitable purpose as defined in Section 2(c) or as used in Section 6(1)(i) of the said Act, As I have stated above, this definition is inclusive and not exhaustive. So far as the instances given are concerned, viz., the relief of the poor, medical relief or the advancement of education, there can be no question that these are objects of general public utility. That this was so intend-ed is obvious from the expression that follows, viz., 'or of any other object of general public utility.' So far as this latter expression is concerned; it will have to be read ejusdem generis. It will now have to be considered as to what else could be imported within the definition. I shall first of all deal with the general law on the subject and not the law, peculiar to Mohammedans only. The leading English case upon the subject is Commissioners for Special Purposes of the Income-tax v. John Frederick Pemsel (1891) AC 531. Under the relevant provisions of the law of Income-tax as prevalent in England, allowances were granted on the rents and profits of lands, etc., vested in trustees for a charitable purpose, so far as the same were applied to such a purpose. Certain lands were conveyed to trustees for the purpose of maintaining, supporting and advancing missionary establishments among heathen nations, of the Protestant Episcopal Church, commonly known as the 'Moravian Church.' A question arose as to what was the meaning of the expression 'charitable purpose.' Lord Mac-naghten laid down that 'charity' in its legal sense comprised of four principal divisions : (i) trusts for the relief of poverty, (ii) trusts for the advancement of education; (iii) trusts for the advancement of religion; and (iv) trusts for other purposes beneficial to the community, not falling under any of the preceding heads. In the next-case--In re: Foveaux; Cross v. London Anti-Vivi-Section Society, (1895) 2 Ch. 501, the question that arose for decision was whether a Society for the suppression and abolition of vivisection, was a charity within the meaning of the legal definition of the term 'charity'. Chitty, J., held that, to be a charity, there must be some public purpose--something tending to the benefit of the community. The benefit, in point of local area, need not however expend to the whole world. A trust for the benefit of the inhabitants of a particular district will suffice. The bequest was upheld as a charitable bequest, because there was the intention to benefit the community; although, whether the Community would in fact be benefited was held to be a controversial question, upon which the Court did not express any opinion. Both these cases came to be considered in--Beatty v. London Spiritualistic Alliance Ltd. (1923) 1 Ch 237. In that case, a testa-tor bequested a legacy, inter alia for the purpose of establishing a college for the training and development of suitable persons as mediums. Russell J. laid down two tests for establishing the fact that there was a charitable purpose in the legal sense; (1) that the gift will, or may be, operative for public benefit and (2) that the trust is one, the administration of which the court would itself, if necessary, undertake and control. The gift was held not to pass the two tests, because it was not one which was or may be operative for public benefit or which the Court could administer or control. I now come to decisions of the Indian Courts. These decisions are mostly under the Indian Income-tax Act. Under Section 4(3)(i) of the said Act, income derived from property which is held wholly for a religious or charitable purpose is exempted from payment of income-tax. The first case to be considered is a Full Bench decision of the Lahore High Court ILR 12 Lah 725: AIR 1931 Lah 578. In that case, a Muhammadan created Wakf of certain properties for the maintenance of the founder as long as he lived, and for the maintenance of his children, according to the Mahommedian Law and the Wakf Validating Act', to obtain blessings in the next world. According to the Wakf Deed, the founder released the property from his possession as proprietor, he henceforth taking possession as a Mutwalli and manager during his life time, and undertaking to spend the income according to his own wishes for his own maintenance and that of his children and also for religious or charitable purposes. Other clauses of the Deed laid down that the income from the property shall be enjoyed by the descendants, male and female, of the donee, till his line had become extinct, whereupon there was an ultimate gift to charity. Dalip Singh, J. said as follows:

'According to the cardinal principles of construction of a statute which, like a taxing statute, is meant to apply to all persons irrespective of their personal law, the canon of construction must be either to take the plain grammatical meaning of the words used or to take the legal construction from the jurisprudence of the country in which the statute was drafted and apply it as far as possible so as to make the effect of the statute equal whether in a sister country or to sister communities following a different system of jurisprudence. It is quite unnecessary to investigate the meanings of the words in the particular system of jurisprudence that may be followed by the assessee .... It is not in the least likely that the legislature intended to benefit any one community or any individual of any community at the expense of other members of different communities or of the same community. Aspointed out by Lord Halsbury every remission of income-tax from one property or individual finally throws a heavier burden on other property and other individuals and the Legislature could hardily have contemplated such acontingency.'

17. It was held that the trust was not wholly for a religious or charitable purpose and therefore was not exempt from income-tax. It is argued that the Judicial Committee has overruled this decision in . In my opinion, the Privy Council did nothing of the kind. At best, it may beargued that the view expressed by the learned Judge, stands modified to a certain extent:

18. The following passage in the judgment of Rankin, J. is relevant :

'It is to be observed moreover that under the Income-tax Act, the test of general public utility is applicable not only to trusts in the English sense but is to be applied to the property held under a trust 'or other legal obligation' a phrase which would include Moslem Wakfs and Hindu Endowments. The true approach to such questions in cases which arise in countries to which English ideas--let alone English, technicalities--may be inapplicable, was considered by the Board in Yeap Cheah Neo v. Ong Cheng Neo, (1875) 6 CP 381 and it was well said by Sir Raymond West in an Indian case ILR 6 Bom 42: 'But useful and beneficial in what sense? The courts have to pronounce whether any particular object of the bounty falls within the definition; but they must in general apply the standard of customary law and common notion amongst the community to which the parties interested belong'............''

19. The Judicial Committee was not considering the case of a wakf. What happened was that Sardar Dayal Singly a sikh inhabitant to Punjab, created certain trusts by his will. The stock and goodwill of the Tribune Press and Newspaper of Lahore, belonging to him, were vested in trustees to maintain the said Press and Newspaper in an efficient manner, keeping up its liberal policy, and the surplus was to be devoted to its continued improvement. A question arose as to whether this was a trust for a charitable purpose, and therefore, entitled to exemption from income-tax. It was held that it was so exempted, because it passes the test of general public utility. The judicial Committee was not upholding a charitable gift or bequest which had no general public utility, as being a charitable purpose because it was thought to be so amongst a particular community. What it held was that in deciding as to whether a particular purpose was of general public utility or not, the matter should not be decided merely upon English notions, but that the notions prevailing amongst the community concerned, should also be taken into consideration. Thus, the Privy Council was not abrogating the test of general public utility, bus merely defining its nature. This has been pointed out by a Special Bench decision of the Madras High Court, AIR 1941 Mad 535. That was also a case under the Income Tax Act. It concerned a Wakf called the Allajanathud-Deeniya created by one Jamal Mohideen Sahin. The Wakf deed directed half of the annual net income to be utilised for the expense of maintenance, education, marriage, funeral and other necessities of such members of the donor's family in the male line as in the opinion of the mutwalli are in poor and needy circumstances. The mutwalli himself was allowed benefits. Leach C. J. said as follows:

'The expression 'charitable, purpose' must be construed strictly. As the result of decisions in England spread over a long period the expression can only be applied to a public charity. There is no such thing as a private charitable trust. There may be a private trust for religious purposes and that is why the amendment was made to Section 4(3) in 1939. It was made in order to put beyond all doubt the intention of the legislature not to exempt even a private trust for religious purposes.'

20. The learned Chief Justice considered the decision of the Lahore High Court mentioned above, and of the Privy Council in the Tribune case and said as follows:

''The learned Advocate for the assessee (mutwalli) has suggested that the decision of the Judicial Committee in has negatived this opinion, but we cannot read the judgment in that sense. The passage which has just been quoted from the judgment of the Privy Council speaks of the test of general public utility. As this is the test so far as the Income Tax Act is concerned, it is not necessary to consider whether the trust here would be deemed to be charitable in England. Even assuming that the Court may have regard to Muslim ideas in deciding whether a Muslim trust fulfils the test of general public utility, it cannot be said that that part of the trust deed which relates to the setting aside of income for the descendants of the donor constitutes a trust for general public utility. The beneficiaries are to be members of the donor's own family. The utility is not of a public, but clearly to a private nature.'

21. It was held that the exemption under the Income-tax Act did not apply, because the provisions in the wakf deed were not wholly for a religious or a charitable purpose. It will be observed that some of the cases mentioned above, not only lay down general principles but are cases which deal with wakf deeds which contain benefits granted to the donor or his descendants. In spite of this it is argued before us that a deed of wakf, even though it contains provisions conferring benefits upon the donor and/ or his descendants, would still be a trust or a gift exclusively for a religious or charitable purpose. We have been invited to turn our attention to the Muslim law relating to wakfs. The term 'Wakf literally means 'Detention.' Wakfs may be divided into two classes viz., (1) publicand (2) private. A public wakf is One for a public religious or charitable object. A wakf for the benefit of the settlor's descendants is a private wakf called wakf-Alal-Aulad. It was considered at one time, that to constitute a valid wakf, there must be dedication of property solely to the worship of God or to religious or charitable purpose : See Mahomed Hamidulla v. Lotful Huq ILR 6 Cal 744. This extreme view was ultimately modified. See ILR 17 Cal 498 (PC). There being conflicting views, the matter was considered by the Full Bench of this Court in Bikani Mia v. Shuk Lal Poddar, ILR 20 Cal 116. In that case, the minority judgment was by Ameer Ali J. who delivered a learned judgment, quoting the opinions of the prophet and Mohammadan savants, and held that there was a consensus of opinion amongst Mohammedan jurists of every sect and school that wakfs for the benefit of children, kindred, or neighbours, in perpetuity, are valid. According to the learned Judge, to hold that a wakf the benefaction of which was bestowed wholly or in part on the wakif's family and descendants, was invalid, would have the effect of abrogating an important breach of the Mohammaden Law. This view was, however, not accepted by the majority of the Judges, who held that the course of the decisions should not be disturbed by reference to texts which may favour the idea that a settlement on the settlor or his descendants in perpetuity was a pious act. The matter was finally considered by the Judicial Committee in 22 I. A. 76 (PC). In that case, a wakf deed was executed by two brothers, whereby they had appointed themselves as the first Mutwalli and the profits were to be applied towards the maintenance of themselves and their descendants from generation to generation, and when the lines of the founders would be extinct, there was an ultimate gift to charity. The question was whether such a wakf was valid. It was contended that the expression 'charitable purpose' is not used by muslim lawyers in the same restricted sense in which it is used in English Courts, and that according to the Fatawa Alamgiri, a Mohamedan may make a wakf in favour of himself and his descendants as long as they exist, with an ultimate gift for a religious or charitable purpose. The Judicial Committee was confronted with the opinion expressed by Ameer Ali J. in Bikani Mia's case ILR 20 Cal 116 (supra) and Lord Hobhouse said as follows:

'Their Lordships, however, cannot now say that they have not been referred to any authority for the contrary opinion; for Mr. Branson has cited to them two cases in which there are very elaborate judgments delivered in the Calcutta High Court by the learned Judge Mr. Ameer Ali. Those judgments are in accordance with the opinion expressed by him in his Tagore Lectures, and if their Lordships have rightly apprehended them, they do go the whole length of the Advocate-Generals argument. One is in the case of ILR 19 Cal 412, where there were some immediate gifts to the poor, and the gift was upheld and no further appeal was presented. The other case is that of ILR 20 Cal 116 wherethere was no gift to the poor till after the failure of the settlor's family. It was heard by a Full Bench of five Judges, who decided that the deed was invalid, Ameer Ali J. dissenting.

The opinion of that learned Mahomedian lawyer is founded, as their Lordships understand it, upon texts of an abstract character, and upon precedents very imperfectly stated. For instance, be quotes a precept of the Prophet Mahomet himself, to the effect that 'pious offering to one's family, to provide against their getting into want, is more pious than giving alms to beggars. The most excellent of sadakah is that which a man, bestows upon his family.' And by way of precedent he refers to the gift of a house in wakf or sadakah, of which the revenues were, to be received by the descendants of the donor Arkan, ILR 20 Cal 116(140). His other old authorities are of the same kind. . . .As regards precepts which are held up as the fundamental principles of Mahomedan law, their Lordships are not forgetting how far law and religion are mixed up together in the Mahomedan communities; but they asked during the argument how it comes about that by the general law of Islam, at least as known in India, simple gifts by a private person to remote unborn generations of descendants, successions that is of inalienable life interests, are forbidden; and whether it is to be taken that the very same dispositions, which are illegal when made by ordinary words of gift, become legal if only the settlor says that they are made as a wakf, in the name of God, or for the sake of the poor. To those questions no answer was given or attempted, nor can their Lordships see any . . Their Lordships have endeavoured to the best of their ability to ascertain and apply the Mahomedan law, as known and administered in India; but they cannot find that it is in accordance with the absolute, and as it seems to them extravagant application of abstract precepts taken from the mouth of the Prophet. Those precepts may be excellent in their proper application. They may, for aught their Lordships know, have had their effect in moulding the law and practice of wakf as the learned Judge says they have. But it would be doing wrong to the great law giver to suppose that he is thereby commending gifts for which the donor exercises no self-denial; in which he takes back with one hand what he appears to put away with the other; which are to form the centre of attraction for accumulations of income and further accessions of family property; which carefully protect so-called managers from being called to account; which seek to give to the donors and their family the enjoyment of property free from all liability to creditors; and which do not seek the benefit of others beyond the use of empty words . . Their Lordships agree that the poor have been put into this settlement merely to give it a colour of piety and so to legalize arrangements meant to serve for the aggrandizement of a family.'

It was held that the ultimate gift to charity was illusory and the wakf was declared as invalid.

22. It is well-known that this decision of the Privy Council caused considerable dissatisfaction amongst the Mohammedan community in India, resulting in the passing of the Wakf Act of 1930 and the Wakt Validating Act of 1930. These Acts are, however, not declaratory of the Mohammedan Law. So far as the Mahammedan Law is concerned, the decision of the Privy Council in Fata Mohamed's case 22 I. A. 76 (PC) (supra) still holds the field. In that decision, the point actually determined was as to whether the wakf was valid or not. We are not concerned with that aspect of the matter in the present case. Under the law as it now prevails, the wakf in question may be a valid one. The point, however, to be taken into consideration is that even under the Mahomedan Law, a wakf, in so far as it is for the benefit of the founder or his relatives or descendants, has been held not to be a wakf for a religious or charitable purpose, although, it may be a valid disposition of property under a statute specially designated to validate it if there is an ultimate gift for a religious or charitable purpose. Under the artificial provisions of the law such a bequest may be valid if there is an ultimate gift for a religious or charitable purpose however remote. It does not however mean that the intermediate user is to be considered as either a religious or a charitable purpose. As regards the arguments advanced before us that the Mahomedan law, as declared by the prophet, or Mohammedan Jurists, rendered a wakf in favour of the donor and/or his relatives and descendants, a trust for a charitable or religious purpose, it is sufficient to refer to the felicitous words of Lord Hobhouse on the point in Abdul Fata Mohammad's case, 22 Ind App 76 (PC) (supra), and fit requires no further elucidation. The homely saying that 'charity begins at home' has not found an echo in the temples of justice. On the contrary, the declared law is that a trust or an endowment can only he said to be a 'charitable purpose' if there is an intention to benefit the general public, that is to say, it must be for a purpose of general public utility. What is general public utility, is a matter to be decided in the background of the customary law of the donor. It is however now settled that even under the muslim law a wakf for the benefit of the donor, his relatives and/or his descendants as not by itself considered to be for a charitable purpose, not to speak of being exclusively for a charitable purpose.

23. Coming back to the facts of this case, it is admitted that the provisions in Schedule '(Ka)' of the Deed of Wakf are for the exclusive benefit of the Donor's relatives and descendants. Besides this, there are other provisions whereby the donor, as mutwalli, and suceeding mutwallis, derive exclusively personal benefits. Therefore, this Wakf cannot be said to be exclusively for a charitable purpose. As regards 'religious purpose the matter has already been dealt with above.

24. That being so, I am of the opinion that the matter, was rightly decided by the Tribunals below, and this application should fail and be dismissed and I agree with my Lord that the rule should be discharged (As the same question was involved in Civil Revision Cases Nos. 3176 of 1958, 1513 of 1958, 290 of 1958, 3344 of 1957 and 2691 of 1957, their Lordships Bachawat and Sinha JJ. for the reasons given in Civil Revision Case No. 1116 of 1958 passed similar orders in these cases also)

P.N. Mookerjee, J.

25. The relevant facts in all these cases have been fully set out in the judgments of my Lords Bachawat and Sinha, JJ., and I would not repeat them. I shall at once proceed to the question of law, arising in these References.

26. The common point, which is involved in these cases, requires for its answer, a proper interpretation of Section 8(1) (i) of the West Bengal Estates Acquisition Act, 1953. The question is whether a Wakf-alal-aulad comes within the said Clause (i) of Section 6(1) of the aforesaid West Bengal Estates Acquisition Act, 1953. As stated by the learned referring Judge (Sinha, J.) ''the question is of great public importance and affects practically all the Wakfs in the State of West Bengal.'

27. The aforesaid Section 6(1)(i) of the above Act runs as follows:

'6. Right of intermediary to retain certain lands,--

(1) Notwithstanding anything contained in Sections 4 and 5 an intermediary shall, except in the cases mentioned in the proviso to Subsection (2) but subject to the other provisions of that Sub-section, be entitled to regain with effect from the date of vesting- (i) Where the intermediary is a corporation or an institution established exclusively for a religious or a charitable purpose or both, or is 'a person holding under a trust or an endowment or other legal obligation exclusively for a purpose which is charitable or religious or both' --land held in Khas by such corporation or institution, or person, for such purpose (including land held by any person, not being a tenant, by leave or license of such corporation or institution or person);'

27a. I have underlined above (here in single quotation marks--Ed.) the part of the section which is directly relevant for our present purpose.

28. Provision for the maintenance and support of the Wakif's family, children or descendants is an essential and invariable feature of a Wakf-alal-aulad,--a Wakf, as its name broadly signifies, for the benefit of the settlor's family and descendants. In all the Wakfs or so called Wakfs before us, there is such a provision, that is, a provision for the maintenance and support of the Wakif's family, children or descendants. I have purposely used, the term 'so-called Wakfs' as I am proceeding on the assumption that all the above cases are cases of valid Wakf-alal-aulads without examining the validity or other-wise of the said Wakf or so-called Wakfs under the relevant law.

29. The moot question is whether a provision for the maintenance and support of the Wakif's family, children or descendants is one for religious and/or, charitable purpose, as mentioned in the quoted section, and, if not, whether, in spite of the same the particular Wakf or Wakfs concerned can be said to be exclusively for such purposes. This latter part almost answers itself as the crucial word used is 'exclusively'. In the face of that word, the presence of a purpose, not religious and/or charitable, would obviously be fatal. Where, therefore, there is such a purpose or a term or provision, evidencing the same, the case is at once taken out of the above statutory provision (Section 6(1)(i)), as the relevant test, namely, 'exclusively for religious and/or charitable purpose' will not be satisfied. The dominant or predominant purpose may, no doubt, still be 'religious' and/or 'charitable' and the endowment or legal obligation in question may well be substantially for religious and/or charitable purposes but it will certainly not be exclusively for such purposes.

30. The point, therefore, is whether in a Wakf-alal-aulad, the provision for the Wakif's family, children or descendants is a provision for religious and'/or charitable purpose within the meaning of the aforesaid Section.

31. Before taking up the above point, it is necessary to answer one preliminary objection, raised on behalf of the State. The learned Government Pleader has contended--and contended seriously--that a Wakf does not come witnin the expression 'endowment or other legal obligation' as used in the above Section and, in any event, the Mutwalli cannot be said to hold the Wakf property or to hold the same under any such legal obligation. This objection is taken to throw out the instant applications in limine on the ground of incompetency or absence of locus stand of the applicants (Mutwallis) concerned I do not think, however, that the objection, in any of its above parts has any substance.

32. That a Mussalman Wakf and a Hindu debuttar directly come under the above expression 'other legal obligation' and the Wakf property and the debuttar estate are property, held under such legal obligation, is well settled . Indeed, on this point, there was never any scope for doubt. Whatever doubt was entertained was on the correlated question whether the Mutwali and the Shebait were trustees and the Wakf and debuttar were trusts in the strict English sense of the terms. That was categorically answered in the negative in Vidya Varuthi's case, 48 I. A. 302 : AIR 1922 PC 123 (See also Muhammad Rustam Ali v. Mushtaq Husain, 47 Ind App 224: AIR 1921 PC 105 where the position of the Mutwali in relation to the Wakf property was succinctly staged to be that of a Superintendent and was compared and held analogous to that of 'a receiver and manager, appointed over property in this country but having, by virtue of his appointment, no estate in the property, he is called' upon to control, that is, having or possessing powers over it but not an interest in it'), but, at the same time, their Lordships were careful to point out that the Shebait and the Mutwali had duties, akin to trustees, and, in that context, both the Mussalman Wakf and the Hindu debuttar involved legal obligations, similar to trusts. This view has never been questioned or departed from and is has been repeatedly affirmed and reaffirmed. This was also the view taken in the earlier Privy Council case, reported in Ramanathan Chetti v. Nurugappa Chetti 33 Ind App 139, where their Lordships made inter alia the following observations:--

'The manager of the temple is by virtue of his office the administrator of the property attached to it. As regards the property the Manager is in the position of a trustee. But as regards the service of the temple he is rather in the position of the holder of an office or dignity. But the use of the term 'trustee' created a confusion on certain occasions and the resultant misconception had' to be removed by the authoritative pronouncement in Vidya Varuthi's case, 48 Ind App 302: AIR 1922 PC 123 (See also 47 Ind App 224 : (AIR 1921 PC 105 the position of a Mutwali (Superintendent) was described by Lord Buck-master as that of a ''trustee in the general sense that every man is a trustee to whom is entrusted the duty of managing and controlling property what belongs to another', and the later decision of the Judicial Committee in . The cumulative effect of the above Privy Council decisions leaves no manner or doubt that the properties of a Mussalman Wakf and of a Hindu debuttar are, at any rate, properties held by the Shebait and the Mutwali respectively for 'other legal obligation within the meaning of the phrase 'a trust or an endowment or other legal obligation'. The Shebait or the mutwali may not be the owner of the dedicated properties. Those again, may well be properties belonging to the deity or God, and they may be only managers or administrators of those properties but, nevertheless, they hold those properties under legal obligations akin to trustees.'

33. In the above view, I would overrule the State's preliminary objection.

34. Turning now to the real question before us, I proceed to consider whether a Wakf-alal-aulad is exclusively for 'religious' and/or 'charitable' purposes. As I have said above, of such a Wakf, provision for the Wakf's family, children or descendants is an essential feature. Such a provision, however, is neither for charitable nor for religious purposes within the meaning of the respective definition clauses (c) and (n) of Section 2 of the Act in the absence of anything, repugnant in the subject or context, 'religious purpose' means a purpose connected with religious worship, teaching or service or any performance of religious rites; (Vide Section 2(n)), and 'charitable purpose' is defined in the Act (Vide Section 2(c)) as follows; ''Charitable purpose includes the relief of the poor, medical relief orthe advancement of education or of any other object of general public utility'. A provision for the Wakif's family, children or descendants would come under neither. It cannot be held to be connected with religious worship, teaching or service or any performance of religious rites. This, indeed, is obvious. Such a purpose is not also any of the enumerated instances, namely, relief of the poor, medical relief or the advancement of education in the other definition (Vide Section 2(c)) nor does it come within its last part, which speaks of any other object of general public utility, as, obviously, it contains no element of public utility. It is contended, however, on behalf of the petitioners that this definition (Section 2(c)) is an inclusive one and so not exhaustive and the enumerated instances including the last part aforesaid are only illustrative. There is apparent force in this contention as the definition Section (Section 2) in some of its clauses uses the term 'means', while in this particular clause, the term used is 'includes'. The contrast is remarkably hold, it is too patent and significant to be ignored or misunderstood and, in the clear emphasis of its context, it seems unarguable that 'includes' will have the same sense as 'means' and would be exhaustive.

35. From the above, it may, possibly, be argued--not wholly at any rate, without even some apparent force,--that, under the aforesaid definition public utility is not a necessary element of 'charitable purpose' and Such purpose or charity may well exist apart from public utility. The English concept is, no doubt, different and, under that system of law, the public utility element is invariably associated with charity (Vide Tudor on Charities, 5th Edition, pp. 7-8 and (1891) AC 5 31 (581)). That, however, may not he very material as, in interpreting the Indian Statute, English concepts need not necessarily predominate . The Act has to be construed on its own text in the light of 'customary law and common opinion' amongs the particular community concerned (Vide the Tribune Case citing (1875) 6 PC 881, and quoting, with evident approval, the following observations of West, J:--

'The Courts have to pronounce whether any particular object of bounty falls within the definition; but they must, in general, apply the standard of customary law and common opinion amongst the community to which the parties interested belong'', in ILR 6 Bom 42.

36. It is to be noted, however, that, so far as Judicial decisions are concerned (Vide AIR 1931 Lah 578 : IL.R 12 Lah 725 (FB), AIR 1941 Mad 535; Commissioner of Income Tax Madras, v. Aga Abbas Ali : AIR1944Mad292 and AIR 1946 Bom 44) the Tribune case has been construed as an authority for holding that 'charitable purpose' under the Indian Income Tax Act which defines it in almost the same terms as the statute hereunder consideration, must have an indispensable element of public utility. This constructionmay apparently be open to some criticism in view, particularly, of the inclusive nature of the above statutory definition, though undoubtedly there are certain passages in the aforesaid judgment of the Privy Council (Vide ) which, prima facie, at least, lend support to it and may broadly be read as suggesting that the element of public utility underlies every legal concept of charity, although the relevant test of public utility or benefit of the community may have to be judged in the light of the relative notions of the particular community concerned and may thus differ from community to community. It is not necessary, however, to examine this aspect of the matter for purposes of the present cases, as, even assuming that a 'charitable purpose' may well exist within the above inclusive statutory definition without any element of public utility, it must be conceded' that the purpose, be it private or public, must, at least, be charitable according to the concepts or notions of the particular community concerned in this view, it has to be considered whether a provision for the maintenance and support of the Wakif's family children or descendants in a wakf-alal-aulad constitutes a charity or a charitable purpose under the Mussalman law. To this question, the petitioners seek an affirmative answer on the authority of ILR 19 Cal 412, and ILR 6 Bom 42, (see also Amrutlal Kalidas, v. Shaik Hussain, ILR 11 Bom 492). Of the said decisions, however, only the first (ILR 19 Cal 412 seems to be relevant (Vide pp. 427-434 (per Ameer Ali J.)). In the other two cases, neither West J., not Farran J. goes to the length of holding that a provision for the Wakif's children, family or descendants is a charitable act, though West J. has sometimes been misunderstood as laying down a dictum to that effect, Meer Mohamed's case ILR 19 Cal 412, however, unquestionably supports the petitioners' contention but, notwithstanding the high authority of Ameer Ali, J. in the said case to the contrary, the point must be answered in the negative. Ameer Ali J.'s view did not find favour with the majority in the Full Bench in the case of ILR 20 Cal 116, where that learned Judge was left in a lone minority. In the leading Privy 'Council case of 22 Ind App 76 (PC), that view namely, of Ameer Ali J., was categorically rejected (vide pp. 85-88), the opinion of Ameer Ali J. was held to be untenable, the apparent dictum of West J. was held! to be non-existent and, in any event, extra-judicial, following 17 Ind App 28 (PC), and the decision of Farran J. was explained (Vide p. 88)--and the disputed Wakf-alal-aulad was held invalid because of the predominant gift to be Wakif's family and the nominal or illusory character of the ultimate gift to charity the substance of the decision being that there was no gift to charity, either ultimate or immediate (Vide 19 Ind Any 170 ), or, at any time whatsoever (Vide-17 Ind App 28 ). In the above two earlier cases of the Board also, namely, 17 Ind App 28 (PC) and 19 Ind App 170 (PC), supra, on which the Judicial Committee expressly relied for deciding against the validity of the Wakf in Abdul Fata's case, 22 Ind App 76 (PC) the Wakfs failed substantially on the same ground.

If a provision for the maintenance and support of the Wakif's family, children or descendants could be held to be a charity or a provision for charitable purpose', there was no reason why the Wakf would have been invalid in any of the above three cases before the Board. The test of substantial gift to charity or religion suffices for the validity of a Wakf under the Mahomedan law and, upon that test, the Wakfs in all the above three cases would certainly have been valid, if the provision for the Wakif's family, children or descendants could be upheld as a charity, and no question would then have arisen of the absence of any gift to charity, immediate or ultimate, or the nominal or illusory character of the ultimate gift to charity in the said three cases.

37. Muhammadan Law does not require any particular form of charity for validity of a Waki. Any purpose, charitable under that law, would be sufficient. If, therefore, a provision for the maintenance and support of the Wakif's family, children or descendants was of that character under the Muhammadan law that, by itself, would have sustained: the Wakfs in the above three cases and the decisions therein would have been clearly otherwise and in favour of the Wakfs in question.

38. Indeed, the point has been put beyond all ranges of doubt and controversy by the following observations (see particularly, the portion underlined (here in Single quotation marks--Ed.) herein below) of Lord Robertson in 28 Ind App 15 :

'The deed thus closes as it began, by describing itself as a deed' of family endowment. The donor contemplates, it is true, that his own liberality to religious and charitable purposes shall continue in future generations; but that is only, as it turns out, to an uncertain and discretionary amount, and as an incident of the family endowment. When the deed is examined and collated, and its professions tested by its effective provisions, it proves to be what it calls itself, a 'family endowment' pure and simple. 'Indeed, the theory of the deed seems to be that the creation of a family endowments is of itself a religious and meritorious act, and that the perpetual application of the surplus income in the acquisition of new properties to be added to the family estate is a charitable purpose. It is superfluous in the present day to say that this is not the law' ' (p. 26).

And

'On the, terms of the deed itself, therefore, their Lordships hold that the property is not in substance dedicated to charitable purposes, but, on the contrary, is dedicated substantially to the maintenance and aggrandisement of the family estate for family purposes. The deed, therefore, could not be supported as constituting a Wakf.' (p. 27).

This is unquestionably a categorical rejection or repudiation of the view that a provision for the maintenance and support of the Wakif's family, children or descendants is, according to Muhammadan Law, an act of charity.

39. It is to be noted also that the statutory change of the Mohomadan Law of Wakf, which followed the decision of the Privy Council in Abdul Fata's case, 22 Ind App 76 (PC) supports the above point of view. It is manifest that, under the new statute (the Mussalman Waki Validating Act, 1913), a Wakf-alal-aulad was given an extended scope and, under the said Act, such a Wakf could be validly made for religious, pious or charitable purposes including inter alia maintenance of the Wakifs family, children or descendants, this latter being expressly mentioned as a valid object of such Wakfs, as, obviously, otherwise it could not have been so regarded (Vide Abdul Fata's case 22 Ind App 76 (PC) supra). The Act, indeed, is a legislative recognition of the view-point approved and affirmed in the above three Privy Council cases, and! it leaves little doubt that that was accepted as the correct exposition of the Mahomedan Law on the point. This is confirmed by the subsequent decisions of the Judicial Committee (Vide ), which refused to give retrospective operation to the above Act, thus affirming that it was not declaratory of the Muhammadan Law on the point and affirming, in substance, that Abdul Fata's case, 22 Ind App 76 (PC) contained the true exposition of that Law. Indeed, the Act or 1913 had to be made retrospective by a subsequent legislation, namely, the Mussalman Wakt Validating Act, 1930, the necessity whereof shows that, but for the said two Acts, a Wakf-al-al-aulad, where the ultimate benefit to charity was nominal or illusory on account of its deferment till the extinction of the Wakif's family, would have been invalid under the Muhammadan Law.

40. It was lastly contended on behalf of the petitioners that the above three Privy Council cases were distinguishable as, in none of those cases, was there any ultimate gift to charity and, without it, the Wakf property would have reverted to the Wakif or his heirs and so there would have been no permanent gift to charity. I am unable to accept this contention. If the petitioners' main contention be correct that the provision for the Wakif's family, children or descendants was an act of charity and constituted a 'charitable purpose', the ultimate gift to charity (which was clearly there at least in Abdul Fata's case, 22 Ind App 76 (PC) supra), following the same, that is, the said provision or so-called act of charity or 'charitable purpose' could not and would' not have been rejected as nominal or illusory, merely on the ground of remoteness on account of its deferment or postponement till after the said or so-called earlier act of charity, as aforesaid and it would have certainly been effective and sufficient, at least to prevent a reverted of the Wakf property to secular uses. It is also important to note in this connection that as already stated, the Privy Council in 19 Ind App 170 at p. 178 (PC) applied the test of charity, immediate or ultimate, and that was found to be lacking in spite of the provision for the maintenance and support of the Wakif's family, children or descendants, and, similarly in 17 Ind App 28 (PC) for the test of 'substantial dedication of the property to charitable uses at some period of time or other' (Vide p. 37), such a provision, even though substantial and, admittedly, predominant and more or less overwhelming, was found to be utterly irrelevant and insufficient.

41. The foregoing discussion makes it plain that the petitioners' above plea of distinction of the above three Privy Council cases is unavailing and their endeavour to distinguish them must fail and, further, that, as categorically stated and confirmed later by Lord Robertson (Vide his observations in 28 Ind App 15 at pp. 26 and 27 (PC) already quoted), such a provision as aforesaid cannot be held! to be a provision for charity or to constitute a 'charitable purpose' even under or according to Mahomedan Law (Vide also in this connection 44 Ind App 21: AIR 1916 PC 86 and : AIR1940Cal501 .

42. The conclusion thus is irresistible that, in spite of Ameer Ali J.'s opinion to the contrary, a gift for the Wakif's family, children or descendants would not be a gift for a charitable purpose under the Mohammedan Law and, upon that view, these Rules must fail and they must be discharged'. I agree also that, in the circumstances of these cases, there should be no order for costs in any of these Rules (including the Reference or References concerned).


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