SQ7 FAZLUL RABBI PRADHAN v. STATE OF WEST BENGAL March 8

The wakfs in these two appeals are dissimilar in their terms but both provide for application or income for the support of the wakifs and their families. In the Abdul Karim Wakf (Civil Appeal 392 of 1964) the value of the property is shown as Rs. 1,00,000 and a ceiling of Rs. 4,500 is placed by the wakif on expenditure per year (cl. 12). The mutawalliship and the Na.ib mutawalliship run in the family 'from generation to generation first in the male line and after exhaustion of the male line in the female line. The charities men tioned specifically or generally require a stated expenditure of Rs. 904 per year. The wakif has, in addition, provided for an expenditure of Rs. 2,000 at a time, for the solace of his own soul and for his burial ceremonies etc. Rs. 25 have been ordered to be spent on Mi/ad every year. As regards secular expenses the deed directs that 10 per cent of the income is to be kept as a reserve fund and from savings from the income other properties are to be purchased (cl. 19). The muta walli and the Naib mutawalli are to receive 8 per cent of the income in proportion of 5: 3. Then follow numerous dispositions for the benefit of the family. They are: "15. My wife Bibi Jainulnessa will get as long as she is alive, Rs. 1,200 annually at the rate of Rs. 100 per month and Bibi Taherankhatun, the widow of my eldest son, will get as long as she is alive, Rs. 480 annually (Rupees four hundred eighty only) at the rate of Rs. 40 per month. Such monthly allowances A B c D E F G H ' l'AZLUL RABBI PRADHAJ! v. STATE OF WEST BENG.O.L (Hidayatullah, J.) 311 A B c D E F G B will be stopped after their death. After their death their heirs will not get any portion of the aforesaid monthly allowances. "16. Each of my three sons Shriman Tojammal Hossain Prodhan, Shriman Ahmad Yasin Prodhan and Shriman Azizul Huq Prodhan, will get Rs. 24 per .cent out of the net income of the wakf estates (after payment of revenue, cess etc. which are current at present or will be levied in future and afteT meeting the costs of administration). Shriman Abu Alam Prodhan, the only son born of the loins of my deceased second son will similarly get at the rate of Rs. 7 per cent out of the net income. "18. A fund will be created with a deposit at the rate of Rs. 3 (Rupees three only) per cent, out of the annual net income for the purpose of educatio.n of the sons of my sons, sons of my daughters, sons of the daughters of my sons and my great-grandsons (in the male line). The Mutawalli and the Naib Mutawalli in consultation with each other will render help as far as possible to the boy amongst them who will be meritorious and has zeal for education according to his standard of education. If there be any surplus the same will be kept in deposit in the wakf estate for meeting the expenses of education of the future heirs. If after graduation to Englan'cl, France, Germany, America, he goes Japan, Australia and other progressive cou11tries for higher education, then the Mutawalli and the Naib Mutawalli will, in consultation with each other, help him as far as· possible. ·'20. The provision made for allowances for my afore said three sons and my grandson Shriman Abu Alam Pradhan in Schedule (Kha) will vest, after the respecti;e sons and grandsons their death in the male line equally. If any of them has no son or grandson, in that case after his death if his wife lives and continues to follow her own religion, she will get one-eighth share of the aforesaid allow ance as long as she is alive. The remaining seven eighth share and in the absence of his wife, sixteen annas share will vest in the wakf estate. Daughters born of them will not get the said allowance (in ' the female line)." In lhc Pcnda Mohammad Wakf Estate (Civil Appeal 393 of 1964) the value of the property is shown as Rs. 40.000. The expenditure is about Rs. 3,700 per year. on charities and religious purposes 312 SUPREME COURT REPORTS [1965] 3 s.c.R. These are specified in Schedule Kha. The pay of the Naib Muta- A walli is fixed at Rs. 300 per year. The Mutawalliship and the Naib Mutawalliship 'run in the family and Mutawalli holding office can appoint his successor. The other important clauses of the wakf namah dealing with the application of the funds are: "(9) The Mutawalli shall from the income of the wakf property pay at first revenue and other legitimate government and zamindary dues. "(10) The Mutawalli shal! pay all expenses required for the maintenance of the wakf property and the Mutawalli shal! get ten per cent of such expenses. The Mutawalli shall pay Rs. 25 (Rupees twenty five only) per month to the Naib Mutawalli as his remuneration. "(12) The Mutawalli will be entitled to take as his own remuneration the balance remaining after deduct- ing expenses under items Nos. (9) and (I 0) as well. expenses under Schedule (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 Schedule Ka dispositions are made for the family and the various clauses run as follows: "(1) My grandson Jaman Ajimuddin Ahmed shall get a sum of Rs. 200 (Rupees two hundred) per month as his tankha (allowance) that is the cost of his main tenance and on his demise his heirs shall get the said tankha generation after generation and by way of succession for ever. (2) My daughter Sreemati Hiramannessa Bibi shall ~et , Rs. 25 (Rupees twenty five) per month for her main tenance 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 Srlmati Bibijannessa Bibi shall get Rs. 30 (Runees thirty) ner month during her life time as tankha that is as costs of her maintenance .and on her demise none of her heirs shall grt the same and it will be included in the Wakf Estate". It was not claimed before us in these cases that the nrovisions about the family-have become inonerative by the exhaustion of the beneficiaries and we proceed on the assumption th~.t the families ofl the wakifs do stiU en joy the benefits. In these circumstances, the question is whether these tru~ts can be describ~d as those exclu sively for religious or charitab)e purposes or both. Tf they can he B C D E F G H FAZLUL RABBI PRADHAN v. STATE OF WEST BENGAL (Hidaymullah, J.) 313 A so described s. 6(i)(i) would exempt them from the operation of the Act; otherwise, in view of the provisions of ss. 3, 4 and 5 the estates of the inte1mediaries vested in the State on the appointed date. B c D E F G H As already stated the provisions of the Act apply notwith standing anything to the contrary contained in any other law or in any instrument and notwithstanding any usage or custom to the contrary. The Act must, therefore, be construed on its actual words and the exemption cannot be enlarged beyond what is granted there. The exemption is given to Corporations and institutions established exclusively for a religious or a charitable purpose or both but to this kind of eleemosynary foundations no mutawalli in either deed can lay claim. The matter can thus only come in, if at all, within the words of the exempting clause which read: " ...... a person holding under a trust or endowment or other legal obligation exclusively for a purpose which is charitable er religious or both." The word "exclusivelf' limits the exemption to trusts, endowments. or other legal obligations which come solely within charitable or religious purposes. These purposes are defined by s. 2(c) and (n) and the definitions have already been reproduced. It is quite clear (and indeed the contrary was not suggested at the Bar) that the expression "religious purpose" cannot cover these two cases. The definition is an exhat1stive one and to satisfy the requirement the purpose must be connected with religious worship, teaching or service or perform ance of r~ligious rites. No religious worship, teaching or service or performance of religious rites is involved when the wakif provides for his family or himself even though a person giving maintenance to his family or himself is regarded in Mahomedan Law as giving a sadaqah. But even if regarded as a pious act a sadaqah of thig kind is not a religious worship or rite. In our opinion, neither of the deed makes a disposition coming within the description "exclusively for religion> purposes". This leaves over for consideration whether they come within the expression "charitable purposes". The definition of "charitable purposes" in the Act follows. though not quite, the well-known definition of charity given by Lord Macnaghten in Com111issioncrs for Special Purposes of Income Tax v. Pe111se/('). where four principal divisions were said to be com prised-trusts for the relief of poverty; trusts for the advance ment of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community not falling under any of the preceding heads. The definition in this Act makes one significant change when it speaks of "public utility" and this gives a guidance to the whole meaning and purpose of the exemption. No doubt the definition is not an exhaustive one like the definition of 'religious purposes'. It only speaks of what may be included in it besides the natural meaning of the words. It (') [1891) A.C. 531 at nS3. 314 SUPREME COURT REPORTS (1965] 3 S.C.lf, is quite clear that the provision for the family of the wakif or for himself cannot be regarded as 'relief of poor', 'medical relief' or the 'advancement of education'. It cannot also be regarded as an ex· penditure on an object of general public utility. The definition as it stands cannot obviously comprehend such dispositions. But it is contended by Mr. N. C. Chatterjee that in giving a meaning to the expression "charitable purposes" we must be guided by the notions of Mahomedan Law and he relies upon the observa. tion of Sir George Rankin in Tribune Press Trustees, Lahore v. l.T. Commissioner('). Mr. Chatterjee claims that provision for the wakif and the wakif's family is a charitable purpose according to Maho medan Law. In the Tribune case the Judicial Committee was requir ed to interpret s. 4(3)(i) of the Indian Income-tax Act 1922 (XI ofi 1922). That section provided: "(3) This Act shall not apply to the following classes of income:- (i) Any income derived from property held under trust or other legal obligation wholly for religi- ous or charitable purposes, and in case of pro perty so held in part only for such purpose, the income applied, or finally set apart for applica tion, thereto .. In this sub-section 'charitable purpose' includes relief of the poor, education, medical relief, and the advancement of any other object of general public utility." A 0 D E F In dealing with the will of Sardar Dayal Singh who had constituted a trust to maintain the Press and the Newspaper, "keeping up the liberal policy of the said newspaper and devoting the surplus income ...... in improving the said newspaper ...... ", the question had arisen whether the running of a newspaper was an object of general public utility or whether it was to be treated as a business G concern. The High Court at LJhore was divided in its opinion. Learned Judges in favour of granting the prayer for exemption were of the opinion that the true test was not what the Court consi dered to be an object of public utility, but what the testator thought t<? be. The Judicial Committee pointed out that in reaching this view those learned Judges were following what Chitty J. said in H In re Foveaux, etc.(') and further that that case was dissented from in !a!er cases. In these latter. cases it was held that though the private op1mon of the Judge was immaterial, nevertheless for a charitable gift to be valid, it must be shown (!) that the gift was for public benefit, and (2) that the trust was one of which the Court could, ifi (') L. R. ~~ J. A. 2ll at P. 2.5!. 1 { ) [J"J5] :1 d1 • . j!)J., FAzLUL RABBI PRADHAN v. STATE OF WEST BENGAL (Hi<foyarulfoh, J.) " 315 necessary undertake and control othei:wise-trusts to promote all A ..._ kinds of "fantastic" 9bjects in perpetuity would be establ\sheil. The Judicial Committee acceded to this view but pointed out further: -- B c D E F G H "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 property held under trust "or other legal obligation"-a phrase wh'ich 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 t(\Chnicalities~may be inapplicable, was consider- ed by the Board in Yeap Chealz Neo v. Ong Cheng Neo('), and it was well said by Sir Raymond W.est in Fµtima Bibi v. Advocate General of Bombay('); "But useful and bene ficial iti what sense? The Courts have to pronounce whether any particular object of a bounty falls within the definition; but they must, in general, apply the standard of· customary lpw and common opinion amongst the com ~unity to which the parties interested belong." ' .Relying on this passage Mr. Chatterjee contends that if th!l Mahomedari La:w regards gifts for the benefit of the wakif and his family as "charity" it is not for the Courts to say that 'they are not and he claims exemption foNhe wakfs. He relies upon the precept of the Prophet-'!A pious offering to one's family, to.provide against their getting into want, is more pious than giving alms to.beggars. The i11ost excellent of sadkah is lhaf- which a man liestows upon his family'. Now it is a matter of legal history that wakfs in which the benefits to charity or religioP were either illuwry or postponed in definitely, while the property so d~di(·ated was being enjoyed from generation to generation by !lie family of the wa~if, were regard.ed as opposed to the rule against perpctuitks as· contained in the Indian Succession arid the Transfrr of Prc·perty Acts. This was so declared in a succession of cases by the Judici;!l Co!1~nlittee and 'the opinion of Amir· Ali expressed Jn his Tagore Lectures as well as in Meer Mahoml!d lsr'aeli Khan v. Shfl.1fi Chum Chore(') and Bikani Mia v. Shi1k11/ Poddar"(') 1ya!• not accepted. These cases are referred to in the ihree ol'inions in the High Court ancl most importa11t of them is Aqul Fata Mahfm1e1! Ishak and Others v. Bussomoy Dlmr Chowdry, and others<'1. In that case Lord Hob house, while emphasising that (I) [18i;'i1 J •. n. r. I' C. 381. ( 2).{13811 T.J..H.""'{i·'l~o1n, -:12, !i(I r~i- l !! ('al. -ti:!. 1•1 :!O f'11.I. 116. (') !?2 I.:\. 'j(i. 316 SUPREME COURT REPORTS [1965] 3 S.C.R. Mahomed1n Law ought to govern a purely Mahomedan disposi tion, declined to hold that disposition in which the benefit was really intended to go to the wakif and his family could be described as charity even under that law. Speaking of the precept above quoted by us Lord Hobhouse observed: " ...... it would be doing wrong .to the great lawgiver to suppose that he is thereby commenjing 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 accumula tions of income and further accessions of family property; which carefully protected so-called managers from being called to a-cccunt; which seek to give to the donors and their family the enjoyment of property free from all liabi lity to creditors; and which do not seek the benefit of others beyond the use of empty words." A B c Similar observations were made by Lord Hobhouse in L.R. 17 I.A. 25 and by Lord Natson in L.R. 19 I.A. 170 in earlier cases. D These cases led to agitation in India and the Mussalman Wakf Validating Act, 1913 (VI of 1913) was passed. It declared the rights of Mussalmans to make settlements of property by way of wakf in favour of their families, children and descendants. For the purposes of the Validating Act the term 'wakf' was defined to mem "the rermanent dedication by a person professing the Mussalman faith of any property for ~ ny purpose recognized by the Mussalman law as religious, pious or charitable". This gave a wider meaning to the word wakf but only for the purpose of taking them out of the in validity which would have otherwise existed and which was already authoritatively stated to have so existed. After the pJssage of these two Acts wakfs in which the object was the aggrandisement of families of wakifs without a pretence of charity in the ordinary sense b~came valid and operative. But the intention of the Validating Act was not to give a new meaning to the word "charity" which in common parlance is a word denotingj a giving to some one in necessitous circumstances and in law a giv ing for public good. A private gift to one's own self or kith and kin· may be meritorious an'.! pious but is not a charity in the legal sense and the Courts in Indi1 have never regarded such gifts as for reli gious or charitable purposes even under the Mahomedan Law. It was ruled in Syed Mohiuddin Ahmed and Anr. v. Sofia Khatun(') that neither the Wakf Validating Act 1913 nor the Shariat Act 1937 had the effect of aborgating the Privy Council decisions on tho meaning of "charitable purpose" as such. We do not say that the English authorities should be taken as, the guide as was suggested in soms of these c8ses at one time. For E F G H (1) 44 c.w.x. '974. I FAZLUL RABBI PRADHAN 1.'. c:TArn OF WERT BEJrn.u. (Hida.ya.tullrth, J.) 317 A B c D E F G H one thing, the law was denlope1 in the Chancery Qiurts without the assistance of any statutory definition. The earliest statµte on the subject is one of 1601 in the forty-third year of the reign of Queen Elizabeth I and in its preamble it gave a list of charitable objects which came within the purview of that Act, and for another, Courts in England extended these insl2nces to others by analogy and the subject is often rendered vague an'.! difficult to comprehend. A clear guide is available to us in India in the interpretation of the almost similar provisions of the Indi<1n Income·t\X Act 1922 already quot ed. The observations of Sir George Rank;n in the Tribune CQ1·e, on which much reliance is place:i by the appellants were intend2d to convey the same caution about Englis.h c::ses which we have sound ed here. The Judicial Committee did nGt intend to lay down that the words of a statute so precise in its definition should be rendered nugatory by leaving room for inclusion in "charitable purposes", objects which by no mecins could be charity in the generally accept ed legal sense. No doubt the definition whicb is common is not exhaustive and leaves scop~ for addition but it does not make for enlargement in directions which cannot be described as "charitable". This view of the definit:on was taken in respect of the amlo gous provision Gf the Jn:lian Income-tax Act. In D. V. Arur v. Com missioner of !ncome·tax(') and in re Merccntile Bank of India (Agency) Ltd.(') it was laid down that for satisfying/ the test of charitable purpose there must always be some clemerJt of p'..lblic benefit. Indeed it must be so, if family endowments which are in effect private trusts are not to pass as charities which, as was observ ed in Mujibunnissa and Ors. -v. Ahdul Rahim and A/Jd11! Aziz.('), it is superfluous in the present day to say, is net the law. When the two deeds are examined and their provisions consi dered in the light of these principles, it is easily seen that they are not exclusively for charitable purposes. They do provide in part for objects which are religious or charitable or both but miQgled with those purposes are some which are secular and some which are family endowments very substantial in character. If the latter bene· fits had ceased or the families had become extinct leaving only the charitie~ or if the provisions were for poor and needy though belong ing to the wakif's family, other considerations might conceivably have arisen, as was stated by Bachawat J. in his opinion. The deeds as they stand cannot, however, be said to come within the exemption claimed. The appesls must, therefore, fail. They are dismissed but in the circumstanct>s we direct parties to bear their own costs. --~ ----~---- Appeals dismissed. - - - - - - - - - - - (1) J,;\.H.. (l!llfi} ['01». 4t. (~) [1!112~ 1·111'.1; .. ~Jl'.! C'l 2l I..\ 1;. ''.1 P· 2r;.