ABDUL HASAN Vs. STATE OF BIHAR
LAWS(PAT)-1952-12-20
HIGH COURT OF PATNA
Decided on December 22,1952

ABDUL HASAN Appellant
VERSUS
STATE OF BIHAR Respondents

JUDGEMENT

Ramaswami, J. - (1.) In these applications which have been heard together the same question of law is involved, namely, whether the provisions of the Bihar Land Reforms Act, 1950, are applicable to properties held by trustees for religious and charitable purpose.
(2.) In Misc. Judicial Case No. 250 the petitioner Molvi Abdul Hasan is the Mutswalli or Saifgunj Wakf Estate and Munshahi Wakf Estate. It is stated in the affidavit that "the Saifganj Wakf Estate was dedicated to the Almighty" by a registered Wakfnama dated 11-7-1914. The Manshahi Wakf Estate was similarly created by another registered document in the year 1934. It is alleged that on 22-5-1952, the Government of Bihar in exercise of the powers conferred by Section 3, Bihar Land Reforms Act notified that the two Wakf estates have become vested in and passed to the State of Bihar. The petitioner asserts that the State Government has no authority to acquire the properties vested in trustees for a religious or charitable purpose and that the notification with respect to the two estates is illegal and without jurisdiction. The petitioner prays for a writ in the nature of mandamus commanding the State Government not to interfere with the possession or the management of the petitioner over the estates in question. 2a. In Misc. Judicial Case No. 251 the material facts are of similar character.
(3.) It was submitted by the learned counsel on behalf of the petitioners that on a proper construction the Bihar Land Reforms Act cannot be applied to properties held for a religious or charitable purpose. Learned Counsel referred to Section 3 (1) of the Act which authorises the State Government to declare by notification that the estates or tenures specified in the notification have become vested in the State. Section 2 (o) defines 'proprietor' to mean a person holding in trust or owning for his own benefit an estate or part of an estate. It was argued by the learned Counsel that the mutawalli of a wakf estate was not a trustee in the technical sense but he was only a manager. In support of this argument learned counsel referred to -- 'Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar', AIR 1922 P. C. 123 (A) in which it was observed by Mr. Ameer Ali who pronounced the opinion of the Judicial Committee that a mutawalli has no right in the property belonging to the wakf; that the property was not legally vested in him and that he was not a 'trustee' in the technical sense. It is true that according to Mohammadan Law once it is declared that a particular property is wakf, the right of the wakf is extinguished & the ownership is transferred to the Almighty though the manager of the wakf is mutawalli or curator. In this connection learned Counsel also relied upon Section 1, Indian Trusts Act which states that nothing contained in the Act would affect the rules of Mohammadan law as to wakf. But the argument of the learned counsel proceeds upon a misconception. The question in the present case is not whether the mutawalli of a wakf is a trustee in the strict sense of English law. The question is, on the contrary whether the Bihar Land Reforms Act applies to the properties held by mutawallis of a wakf for a charitable or religious purpose. The answer to the question is furnished by the Act itself. Section 2 (o) defines a 'proprietor' to mean a person holding in trust or owning for his own benefit an estate or part of an estate. Section 2 (s) defines 'trust' to mean any express or constructive trust created or existing for a public purpose of a charitable or religious nature and a 'Hindu, Muslim, Christian, Buddhist' or any other refigious or charitable endowment. It is manifest that the Legislature intended that for the purpose of the Bihar Land Reforms Act the word 'trust' should include a Muslim religious or charitable endowment. On this branch of his argument the learned counsel referred to the proviso to Section 4 (f) which prohibits the Collector from taking charge of an institution, religious or secular, of any trust, or to interfere with the right of a trustee to apply the trust money to the objects of the trust. Learned counsel argued on the basis of this provision that the Act was not intended to apply to religious or charitable trust. But the proviso to Section 4 (f) must be read in the context of other important provisions of the Act. I have already referred to Sections 2 (o) and 2 (s). It is further important to note that Section 24 (3) provides that in the case of a religious or charitable trust the compensation payable should be assessed as a perpetual annuity equal to the net income of the properties. On the examination of these important provisions it is clear that the Bihar Land Reforms Act applies to the Zamindary assets vested in the trustees for religious or charitable purpose and that the Legislature has sufficiently manifested its intention on this point. The argument of the learned counsel must therefore fail.;


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