Mutawallis of two family wakfs claimed exemption from vesting of estates under the West Bengal Estates Acquisition Act as holders exclusively for charitable or religious purposes. The Supreme Court held the deeds mixed secular and substantial family endowments with charity, so the exemption did not apply.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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FAZLUL RABBI PRADHAN
v.
STATE OF WEST BENGAL
March 8, 1965
[P. B. GAJENDRAGADKAR, CJ., M. H!DAYA,TULLAH, J. c. SHAH AND
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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 D 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 E 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 G 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 educa- tion" 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
[1\165] 3 s.c.R.
SUPREME COURT REPORTS
308
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.
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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
''AZLUL RABBI PRADHAN v. STATE OF WEST BENGAL (Hich.yaiullah, J.)
309
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 referE red, 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) F 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.
(i) where the intermediary is a corporation or an institution established exclusively for a religious or a charitable purpose or both, or
[J 96o] 3 S.C.R.
310
SUPREME COURT REPOR'rS
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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:
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"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:
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l'AZLUL RABBI PRADHAJ! v. STATE OF WEST BENG.O.L (Hidayatullah, J.)
311
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will be stopped after their death. After their death their heirs will not get any portion of the aforesaid monthly allowances.
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.
[1965] 3 s.c.R.
312
SUPREME COURT REPORTS
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 wakfnamah dealing with the application of the funds are:
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| "(9) The Mutawalli shall from the income of the wakf property pay at first revenue and other legitimate government and zamindary dues. |
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| "(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 fiveonly) per month to the Naib Mutawalli as his remuneration. "(12) The Mutawalli will be entitled to take as hisown remuneration the balance remaining after deduct- ing expenses under items Nos.(9)and(I0)as well. expenses under Schedule(ka)and (kha) below from the income of the Wakf property and hewillbe entitled to spend the sum forhisown work. • • |
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In Schedule_Ka_dispositions are made for the family and the various clauses run as follows: |
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| "(1)My grandson Jaman Ajimuddin Ahmed shall get a sum of Rs.200(Rupees two hundred) per month as his tankha (allowance) thatisthe 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 twentyfive)per month for her main- tenance and on her demise her heirs shall continue to get the said tankha generation after generation for ever bywayof succession. |
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| (3)My second wife Srlmati Bibijannessa Bibi shallget Rs.30(Runees thirty) ner month during her life timeastankha thatisas costs of her maintenance .and on her demise none of her heirs shall grt the same and itwillbe includedinthe Wakf Estate". |
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| Itwas not claimed beforeusin these cases that the nrovisions about the family-have become inonerative by the exhaustion of the beneficiaries andweproceed on the assumptionth~.tthe familiesofl the_wakifs_dostiUenjoythe benefits.Inthese circumstances, the questioniswhether thesetrutscan bedescribdas those exclu- sively for religious or charitab)e purposes or both.Tfthey can he |
FAZLUL RABBI PRADHAN v. STATE OF WEST BENGAL (Hidaymullah, J.)
313
" ...... a person holding under a trust or endowment or other legal obligation exclusively for a purpose which is charitable er religious or both."
D 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 E "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 F 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".
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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 advanceH 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.
(1965] 3 S.C.lf,
314
SUPREME COURT REPORTS
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:- |
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| (i)Any income derived from property held under trust or other legal obligation wholly for religi- ousorcharitable 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.. |
| Inthis 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 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 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
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(') L. R. ~~ J. A. 2ll at P. 2.5!.
{1 ) [J"J5] :1 d1 • . j!)J.,
" STATE OF WEST BENGAL (Hi<foyarulfoh, J.) J.) 315
FAzLUL RABBI PRADHAN v. STATE OF WEST BENGAL (Hi<foyarulfoh, J.) J.)
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.Relying on this passage Mr. Chatterjee contends that if th!l Mahomedari La:w regards gifts for the benefit of the wakif and his E 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'.
F 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 ddi(·ated was being enjoyed from generation to generation by !lie family of the waif, were regard.ed as opposed to the rule against perpctuitks as· contained in the Indian G 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 H 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
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(I) [18i;'i1 J •. n. r. I' C. 381. (2 ).{13811 T.J..H.""'{i·'lo1n, -:12, !i(I ri- l !! ('al. -ti:!. 1•1 :!O f'11.I. 116.
(') !?2 I.:. 'j(i.
[1965] 3 S.C.R.
316
SUPREME COURT REPORTS
I
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.
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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.
FAZLUL RABBI PRADHAN 1.'. c:TArn OF WERT BEJrn.u. (Hida.ya.tullrth, J.) 317
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 E 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 consi- F 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 G 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. H
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;.
2 issues framed by the court
Whether Muslim wakfs providing substantially for the wakif's family are exempt under s. 6(1)(i) of the West Bengal Estates Acquisition Act as trusts held exclusively for charitable or religious purpos
Whether family provisions in a wakfnamah can constitute 'charitable purpose' within the meaning of the statutory definition.
Colour shows how this judgement treated each authority
Commissioners for Special Purposes of Income Tax v. PemselExplained
(1891) A.C. 531 at p. 583
Tribune Press Trustees, Lahore v. I.T. CommissionerExplained
Tribune Press Trustees, Lahore v. I.T. Commissioner
In re FoveauxReferred
In re Foveaux
Yeap Cheah Neo v. Ong Cheng NeoReferred
Yeap Cheah Neo v. Ong Cheng Neo
Fatima Bibi v. Advocate General of BombayReferred
Fatima Bibi v. Advocate General of Bombay
Meer Mahomed Ishaq Khan v. Shaifi Chum ChoreReferred
Meer Mahomed Ishaq Khan v. Shaifi Chum Chore
Bikani Mia v. Shuklal PoddarReferred
Bikani Mia v. Shuklal Poddar
Aqul Fata Mahommed Ishak and Others v. Bussomoy Dhar ChowdryRelied on
Aqul Fata Mahommed Ishak v. Bussomoy Dhar Chowdry
Syed Mohiuddin Ahmed and Anr. v. Sofia KhatunRelied on
Syed Mohiuddin Ahmed and Anr. v. Sofia Khatun
D. V. Arur v. Commissioner of Income-taxRelied on
D. V. Arur v. Commissioner of Income-tax
re Mercantile Bank of India (Agency) Ltd.Relied on
re Mercantile Bank of India (Agency) Ltd.
Mujibunnissa and Ors. v. Abdul Rahim and Abdul AzizReferred
Mujibunnissa and Ors. v. Abdul Rahim and Abdul Aziz
7 provisions across 2 enactments
Fazlul Rabbi Pradhan
Kawsar Alam
State of West Bengal
P. B. Gajendragadkar
M. Hidayatullah
J. C. Shah
S. M. Sikri
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
