# FAZLUL RABBI PRADHAN v. STATE OF WEST BENGAL

- **Citation:** [1965] 3 S.C.R. 307
- **Court:** Supreme Court of India
- **Decided:** 1965-03-08
- **Case number:** Civil Appeals Nos. 392 and A 393 of 1964
- **Bench:** P. B. Gajendragadkar, M. H!Daya, Tullah, J. c. SHAH, B S. M. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/fazlul-rabbi-pradhan-v-state-of-west-bengal-3488
- **Pages:** 11

## Headnote

West Bengal Estates Acquisition Act (Act 1 of 1954), s. 6(l)(i)-
"Cliaritab!e purpose", meaning of.
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 descenden ts, or the
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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
s. 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
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by s. 6(l)(i) of 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 Art. 226 of the Constitution.
Iii the appeal to the Supreme Court,
HELD: The purposes described in the deeds were not covered by
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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].
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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
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exemption. It leaves scope for addition but it does not make for enlargement in directions which cannot be described as "charitable". Al
provision for the family of the wakif or for himself cannot be regarde~
as "relief of poor", "medical relief" or "the advancement of education" under the definition. It cannot also be regarded as an expendi·
ture on an object of general public utility. It is true that after the
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passing of the Mussalman Wakf Validating Act, 1913 and the Shariat
Act, 1937, wakfs, in which the object was the aggrandisement of th!!
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.
(313 B, H; 314 A; 316 F-H; 317 D].
1,1 B(N;SSOI-7
308
SUPREME COURT REPORTS
[1\165] 3 s.c.R.

## Text

A
FAZLUL RABBI PRADHAN
v.
STATE OF WEST BENGAL
March 8, 1965
SQ7
[P. B. GAJENDRAGADKAR, CJ., M. H!DAYA,TULLAH, J. c. SHAH AND
B
S. M. SIKRI, JJ.]
West Bengal Estates Acquisition Act (Act 1 of 1954), s. 6(l)(i)-
"Cliaritab!e purpose", meaning of.
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 descenden ts, or the
C
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
s. 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
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by s. 6(l)(i) of 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 Art. 226 of the Constitution.
Iii the appeal to the Supreme Court,
HELD: The purposes described in the deeds were not covered by
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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].
•
F
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
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exemption. It leaves scope for addition but it does not make for enlargement in directions which cannot be described as "charitable". Al
provision for the family of the wakif or for himself cannot be regarde~
as "relief of poor", "medical relief" or "the advancement of education" under the definition. It cannot also be regarded as an expendi·
ture on an object of general public utility. It is true that after the
H
passing of the Mussalman Wakf Validating Act, 1913 and the Shariat
Act, 1937, wakfs, in which the object was the aggrandisement of th!!
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.
(313 B, H; 314 A; 316 F-H; 317 D].
1,1 B(N;SSOI-7
308
SUPREME COURT REPORTS
[1\165] 3 s.c.R.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 392 and
A
393 of 1964.
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.
G. S. Chatterjee and S. C. Mazumdar, for the appellant (in
B
C.A. No .. 392/64).
N. C. Chatterjee and S. C. Mazumdar, for the appellant (in
C.A. No. 393/64).
C. K. Daphtary, Attorney-General, B. Sen, S. C. Bose and
P. K. Bose, for the respondents (in C.A. 392/ 64).
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B: Sen, S. C. Bose and P. K. Bose, for the respondent (in C.A.
No. 393/64). .
The Judgment of the Court was delivered by
Hidayatullah, J.
In 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
Art. 226 of the Constitution involving a common point of law, discharged the Rule issued earlier in them. These cases were concerned with Muslim wakfs in which either the ultimate benefit to
charity is postponec'. 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 sid~ 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). That Act, in common with similar Acts of other States in
India abolished from a date notlfied 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 s. 10(2) 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 11, 1954
under s. 4 of the Act there was extinction and cesser of the estate
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''AZLUL RABBI PRADHAN v. STATE OF WEST BENGAL (Hich.yaiullah, J.)
309
and rights of these intermediaries and !heir .divested estates and
rights vested in. the State. The Mutawalhs were called upon by the
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
Pradhan, Mutawalli of Abdul Karim Wakf Estate, who is appellant
in Civil Appeal No. 392 of 1964 and to Kawsar Alam, Mutawalli
of Penda Mohammad Wakf Estate, appellant in Civil Appeal No.
393 of 1964. Similar notices were issued to other mutawa!lis in
respect of other wakfs. The mutawallis appeared _in answer to the
notices and objected to them. They claimed that they were protect•
ed by s. 6(l)(i) of the Act (to which detailed reference will be made
presently) 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 tlie 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 Art. 226 of the Constitution. The
petitions came up for hearing before D. N. Sinha J. and were referred, on his recommendation, to a Full Bench consisting of Bacha·
wat, D. N. Sinha and P. N. Mookerjee JJ. These learned Judges by
separate but concurring judgments held that the wakfs in question
were not protected by s. 6(1)(i) as they were not exclusively for
purposes which were charitable or religious or both and discharged
che Rule. The cases were, however, certified under Art. l-33(1)(a)
and (c) of the Constitution and these two appeals were filed.
It is not necess~1ry 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 s. 6(1)(i) which reads:
"6. Rights cf intermediary to retain certain lands.
(1) Notwithstanding anything contained in section 4
and 5, au 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 ret1in with effect from the date of
vesting-
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(i)
where the intermediary is a corporation or
an institution established exclusively for a
religious or a charitable purpose or both, or
310
SUPREME COURT REPOR'rS
[J 96o] 3 S.C.R.
ls· 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 2(c) defines "charitable purpose" and s. 2(n) "religious purpose". These definitions are:
"2(c) "charitable purpose" includes the relief of 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;"
lf this concession is not available then the estate must vest in the
State Government under ss. 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. 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 mentioned 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 mutawalli 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
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l'AZLUL RABBI PRADHAJ! v. STATE OF WEST BENG.O.L (Hidayatullah, J.)
311
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
he goes to Englan'cl, France, Germany, America,
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 aforesaid three sons and my grandson Shriman Abu
Alam Pradhan in Schedule (Kha) will vest, after
their death in the respecti;e 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 lhc Pcnda Mohammad Wakf Estate (Civil Appeal 393 of 1964)
the value of the property is shown as Rs. 40.000. The expenditure
on charities and religious purposes is about Rs. 3,700 per year.
312
SUPREME COURT REPORTS
[1965] 3 s.c.R.
These are specified in Schedule Kha. The pay of the Naib MutaA
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 wakfnamah dealing with the application of the funds are:
"(9) The Mutawalli shall from the income of the wakf
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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
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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 (I 0) as well.
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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.
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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
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said tankha generation after generation and by way
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of succession for ever.
(2) My daughter Sreemati Hiramannessa Bibi shall ~et
, 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 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 exclusively for religious or charitab)e purposes or both. Tf they can he
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FAZLUL RABBI PRADHAN v. STATE OF WEST BENGAL (Hidaymullah, J.)
313
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.
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 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 performance 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 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
(') [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 Mahomedan Law. In the Tribune case the Judicial Committee was required 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 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."
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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
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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 considered 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
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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.,
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FAzLUL RABBI PRADHAN v. STATE OF WEST BENGAL (Hi<foyarulfoh, J.)
315
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necessary undertake and control othei:wise-trusts to promote all
..._
kinds of "fantastic" 9bjects in perpetuity would be establ\sheil. The
Judicial Committee acceded to this view but pointed out further: --
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"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 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-
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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 beneficial 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 indefinitely, 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.
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SUPREME COURT REPORTS
[1965] 3 S.C.R.
Mahomed1n 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 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 accumulations 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 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 L.R. 17 I.A.
25 and by Lord Natson in L.R. 19 I.A. 170 in earlier cases.
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 invalidity 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 giving 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 religious 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
(1) 44 c.w.x. '974.
A
B
c
D
E
F
G
I
H
A
B
c
D
E
F
G
H
FAZLUL RABBI PRADHAN 1.'. c:TArn OF WERT BEJrn.u. (Hida.ya.tullrth, J.)
317
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 quoted. 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 sounded 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 accepted 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 amlogous provision Gf the Jn:lian Income-tax Act. In D. V. Arur v. Commissioner 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 observed 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 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 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 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 appesls must, therefore, fail. They are dismissed but in the
circumstanct>s we direct parties to bear their own costs.
-----------
(1) J,;\.H.. (l!llfi} ['01». 4t.
(~) [1!112~ 1·111'.1; ..
~Jl'.!
C'l 2l I..\
1;. ''.1 P· 2r;.
Appeals dismissed.
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