Appeals Nos
392 and 393 of 1954
Appeals by special leave from the judgment and order dated March 26 1962 of the Calcutta High Court in Civil Revision Nos 3176 of 1958
GS Chatterjee and SC Mazumdar for the appellant in CA No 39264
NC Chatterjee and section 7
Mazumdar for the appellant in CA No 39364
CK Daphtary Attorney General B Sen SC Bose and PK Bose for the respondents in CA 39264
B Sen SC Bose and PK Bose for the respondent in CA No 39364
The Judgment of the Court was delivered by Hidaytullah J
these two appeals the appellants seek to displace a common judgment and order of the High Court of Calcutta dated March 26 1962 by which a Full Bench of the Court specially constituted to hear and determine certain petitions under article 226 of the Constitution involving a common point of law discharged the Rule issued earIier in them
These cases were concerned with Muslim wakfs in which either the ultimate benefit to charity is postponed till after the exhaustion of the wakif s family and descendants or the income from the wakf estate is applied for the maintenance of the family side by side with expenditure for charitable or religious purposes
The common question which arose and still arises is whether these wakfs are affected by the passing of the West Bengal Estates Acquisition Act 1953 West Bengal Act I of 1954 hat Act in common with similar Acts of other States in india abolished from a date notified by the State Government all intermediaries such as proprietors tenure holders etc
between the raiyat and the State and vested the estates and the rights of the intermediaries in the State free from all incumberances
Section 3 of the Act provided that the Act was to 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
There were however some exceptions and one such exception was that an intermediary was entitled to retain with effect from the date of vesting land held in khas under a trust or endowment or other legal obligation exclusively for a purpose which was charitable or religious or both
Notices under section 102 of the Act were issued by the Collectors in charge Estate Acquisitions to the respective Mutwallis informing them that after the notification issued on November II 1954 under section 4 of the Act there was extinction and cesser of the estate 309 and rights of these intermediaries and their divested estates and rights vested in the State
The Mutawallis were called upon by said notice or order to give up possession of these estates and interests within 60 days of the service of the order to the officer empowered by the Collector in this behalf
The orders also specified in schedules appended thereto the details of such properties interests and rights
Notices of this kind were issued to Fazlul Rabbi radhan Mutawalli of Abdul Karim Wakf Estate who is appellant a Civil Appeal No 392 of 1964 and to Kawsar Alam Mutawalli of Penda Mohammad Wakf Estate appellant in Civil Appeal No393 of 1964
Similar notices were issued to other mutawallis in respect of other wakfs
The mutawallis appeared in answer to the notices and objected to them
They claimed that they were protected by section 61i of the Act to which detailed reference will be made resently as they were holding the properties exclusively for purposes which were charitable or religious or both
This claim was not accepted by the Collector Estate Acquisitions and appeals to the commissioner also failed
The orders of the Collector and the Commissioner are dated February 24 1956 and January 18 1958 respectively
The appellants after serving notices of demand for justice filed petitions in the High Court under article 226 of the Constitution
The petitions came up for hearing before DN Sinha J and were refered on his recommendation to a Full Bench consisting of Bachaat DN Sinha and PN Mookerjee JJ
These learned Judges by separate but concurring judgments held that the wakfs in question were not protected by section 61i as they were not exclusively for purposes which were charitable or religious or both and discharged the Rule
The cases were however certified under article 1331a and c of the Constitution and these two appeals were filed
It is not necessary to state how the Act is constructed for the  only question is whether the wakfs can be said to be exclusively for purposes which are religious or charitable or both and thus exempted from the operation of the Act by virtue of section 61i which reads 6
Rights of intermediary to retain certain lands
1 Notwithstanding anything contained in section 4 and 5 an intermediary shall except in the cases mentioned in the proviso to sub section 2 but subject to the other provisions of that sub section be entitled to retain 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 310 is a person holding under a trust or an endowment or other legal obligation exclusivey for a purpose which is charitable or religious or both land held in khas by such corporation or institution or person for such purposes
 Section 2c defines charitable purpose and section 2n religious purpose
These definitions are 2c charitable purpose includes the relief of poor medical relief or the advancement of education or of any other object of general public utility 2n religious purpose means a purpose connected with religious worship teaching or service or any performance of religious rites If this concession is not available then the estate must vest in the State Government under sections 4 and 5 of the Act
The former section invests power in the State Government to notify the date from which the estates and rights of every intermediary are to vest in the State free of all incumberances and the latter says that upon due publication of the notification the vesting takes place from the date notified
This has been done
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 100000 and a ceiling of Rs 4500 is placed by the wakif on expenditure per year el 12
The mutawalliship and the Naib 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 mentioned specifically or generally require a stated expenditure of Rs 904 per year
The wakif has
in addition provided for an expenditure of Rs 2000 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 Milad every year
As regards secular expenses the deed directs that 10 per cent of the income is to be kept as d reserve fund and from savings from the income other properties are to be purchased cl 19
The mutawalli and the Naib mutawalli are tO receive 8 per cent of the income in proportion of 53
Then follow numerous dispositions for the benefit of the family
They are 15
My wife Bibi Jainulnessa wilt get as long as she is alive Rs 1200 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 311 will be stopped after their death
After their death their heirs will not get any portion of the aforesaid monthly allowances
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 after 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
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 education 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 he goes to England France Germany America Japan Australia and other progressive countries 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 aforesaid three sons and my grandson Shriman Abu AIam Prodhan in Schedule Kha will vest after their death in the respective sons and grandsons 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 allowance as long as she is alive
The remaining seveneighth 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 the Penda Mohammad Wakf Estate Civil Appeal 393 of 1964 the value of the property is shown as Rs 40000
The expenditure on charities and religious purposes is about Rs 3700 per year
312 These are specified in Schedule Kha
The pay of the Naib Mutawalli 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 shall pay all expenses required for the maintenance of the wakf property and the Mutawalli shall 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 deducting expenses under items Nos
9 and 10 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 maintenance 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 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 Srimati Bibijannessa Bibi shall get Rs 30 Rupees thirty per month during her life time as tankha that is 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
It was not claimed before us in these cases that the provisions about the family have become inoperative by the exhaustion of the beneficiaries and we proceed on the assumption that the families the wakifs do still enjoy the benefits
In these circumstances the question is whether these trusts can be described as those exclusively for religious or charitable purposes or both
If they can be 313 so described section 61i would exempt them from the operation of the Act otherwise in view of the provisions of sections 3 4 and 5 the estates of the intermediaries vested in the State on the appointed date
As already stated the provisions of the Act apply notwithstanding 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 or religious or both  The word exclusively limits the exemption to trusts endowments or other legal obligations which come solely within charitable or religious purposes
These purposes are defined by section 2c and n and the definitions have already been reproduced
It is quite dear and indeed the contrary was not suggested at the Bar that the expression religious purpose cannot cover these two cases
The definition is an exhaustive one and to satisfy the requirement the purpose must be connected with religious worship teaching or service or performance of religious 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 this kind is not a religious worship or rite
In our opinion neither of the deed makes a disposition coming within the description exclusively for religious 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 Commissioners for Special Purposes of Income Tax vs PemseI1 where four principal divisions were said to be comprised trusts for the relief of poverty trusts for the advancement 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  583
314 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 NC 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 observation of Sir George Rankin in Tribune Press Trustees Lahore vs
IT Commissioner1
Mr Chatterjee claims that provision for the wakif and the wakif s family is a charitable purpose according to Mahomedan Law
In the Tribune case the Judicial Committee was required to interpret section 43i of the Indian Income tax Act 1922 XI off 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 religious or charitable purposes and in case of property so held in part only for such purpose the income applied or finally set apart for application 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
 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 concern
The High Court at Lahore 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 considered to be an object of public utility but what the testator thought to be
The Judicial Committee pointed out that in reaching this view those learned Judges were following what Chitty J said in In re Foveaux etc2 and further that that case was dissented from in later cases
In these latter cases it was held that though the private opinion of the Judge was immaterial nevertheless for a charitable gift to be valid it must be shown 1 that the gift was for public benefit and 2 that the trust was one of which the Court could if 1LR 66 IA 241 at P 252
1895 2 ch
501 315 necessary undertake and control otherwise trusts to promote all kinds of fantastic objects in perpetuity would be established
The Judicial Committee acceded to this view but pointed out further  It is to be observed moreover that under the Incometax 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 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 vs Ong Cheng Neo1 and it was well said by Sir Raymond West in Fatima Bibi vs Advocate General of Bombay2 But useful and beneficial in 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 law and common opinion amongst the community to which the parties interested belong
 Relying on this passage Mr Chatterjee contends that if the Mahomedan Law 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 for the 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 most excellent of sadkah is that which a man bestows upon his family 
Now it is a matter of legal history that wakfs in which the benefits to charity or religion were either illusory or postponed indefinitely while the property so dedicated was being enjoyed from generation to generation by the family of the wakif were regarded as opposed to the rule against perpetuities as contained in the Indian Succession and the Transfer of Property Acts
This was so declared in a succession of cases by the Judicial Committee and the opinion of Amir Ali expressed in his Tagore Lectures as well  as in Meer Mahomed Israeli Khan vs Shasti Churn Ghore3 and Bikani Mia vs Shukul Poddar4 was not accepted
These cases are referred to in the three opinions in the High Court and most important of them is Abul Fata Mahomed Ishak and Others vs Bussomoy Dhur Chowdry and others5
In that case Lord Hobhouse while emphasising that 1 2 Bom
42 50 3 4 5 22 IA 76
316 Mahomedan Law ought to govern a purely Mahomedan disposition 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 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 protected 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 Similar observations were made by Lord Hobhouse in LR 17 IA 25 and by Lord Natson in LR 19 IA 170 in earlier cases
These cases led to agitation in India and the 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 mean the permanent dedication by a person professing the Mussalman faith of any property for any 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 validity which would have otherwise existed and which was already authoritatively stated to have so existed
After the passage 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 became 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 denoting a giving to some one in necessitous circumstances and in law a giving for public good
A private gift to one s own self or kith and kin may be meritorious and pious but is not a charity in the legal sense and the Courts in India have never regarded such gifts as for religious or charitable purposes even under the Mahomedan Law
It was ruled in Syed Mohiuddin Ahmed and Ant
vs Sofia Khatun1 that neither the Wakf Validating Act 1913 nor the Shariat Act 1937 had the effect of aborgating the Privy Council decisions on the 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 cases at one time
For 1 44 CWN974
317 one thing the law was developed in the Chancery Courts without the assistance of any statutory definition
The earliest statute 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 instances to others by analogy and the subject is often rendered vague and difficult to comprehend
A clear guide is available to us in India in the interpretation of the almost similar provisions of the Indian Income tax Act 1922 already quoted
The observations of Sir George Rankin in the Tribune case on which much reliance is placed by the appellants were intended to convey the same caution about English cases which we have sounded here
The Judicial Committee did not 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 means could be charity in the generally accepted legal sense
No doubt the definition which is common is not exhaustive and leaves scope for addition but it does not make for enlargement in directions which cannot be described as charitable
This view of the definition was taken in respect of the analogous provision of the Indian Income tax Act
In DV Arur vs Commissioner of Income tax1 and in re Mercantile Bank of India Agency Ltd2it was laid down that for satisfying the test of charitable purpose there must always be some element of public benefit
Indeed it must be so if family endowments which are in effect private trusts are not to pass as charities which as was observed in Mujibunnissa and Ors
vs Abdul Rahim and Abdul Aziz3 it is superfluous in the present day to say is not the law
When the two deeds are examined and their provisions considered 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 mingled with those purposes are some which are secular and some which are family endowments very substantial in character
If the latter benefits had ceased or the families had become extinct leaving only the charities or if the provisions were for poor and needy though belonging 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 appeals must therefore fail
They are dismissed but in the circumstances we direct parties to bear their own costs
Appeals dismissed
1 IAR 2 3 21 IA 15 at p 26


Summary:
The appellants were the respective mutawallis of two wakfs in which either the ultimate benefit to the charity was postponed till after the exhaustion of the wakif s family and descendents or the income from the wakf estate was applied for the maintenance of the family side by side with expenditure for charitable or religious purposes
Notices were issued by the Collector under the West Bengal Estates Acquisition Act 1953 to the appellants calling upon them to hand over possession of the wakf estates on the ground that under section 4 of the Act there was an extinction and cesser of the estate and the rights of the appellants and that their divested estates and rights vested in the State
The appellants claimed that they were protected by section 61iof the Act because they were holding the properties exclusively for purposes which were charitable or religious or both
The claim was rejected by the Collector by the Commissioner on appeal and by the High Court under article 226 of the Constitution
In the appeal to the Supreme Court HELD The purposes described in the deeds were not covered by the expression religious purpose and they were not exclusively for charitable purposes
Mingled with those purposes were some which were secular and some which were family endowments of a very substantial character
As the provisions about the family had not become inoperative by the exhaustion of the beneficiaries the deeds
as they stood could not be said to come within exemption claimed
317 F H
The provisions of the Act apply notwithstanding 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
No doubt the definition of Charitable purpose is not exhaustive like that of religious purpose but the expression public utility in the definition of charitable purpose gives a guidance to the meaning and purpose of the exemption
It leaves scope for addition but it does not make for enlargement in directions which cannot be described as charitable
A provision for the family of the wakif or for himself cannot be regarded as relief of poor medical relief or the advancement of education under the definition
It cannot also be regarded as an expenditure on an object of general public utility
It is true that after the passing of the Mussalman waqf validating Act 1937 wakfs in which the object was the aggrandisement of the families of wakifs without any pretence of charity in the ordinary sense became valid and operative
But the intention was not to give a new meaning to the word Charity which in common parlance is a word denoting a giving to someone in necessitous circumstances and in law a giving for public good
A private gift to one s own self or kith and kin may be meritorious and pious but is not a charity in the legal sense and Courts in India have never regarded such gifts as for religious or charitable purposes even under the Mahomedan Law
A 316 F H 317 D