Pathak, J. - (1.)THE Central Board of Direct Taxes has referred the following question for the opinion of this court :
" Whether, on the facts and in the circumstances of the case, the sum of Rs. 3,61,939, or any part thereof being the value of the properties settled by the deceased as wakf properties, was rightly included in the principal value of the estate of the deceased and charged to estate duty under Section 12 or, in the alternative, under Section 10 of the Estate Duty Act ? "

(2.)HAJI Ahmed Hussain Rizvi died on December 28, 1955. His son, Syed Ahmed Hussain Aslam Rizvi, furnished an account of the property passing on his death to the Assistant Controller of Estate Duty. The deceased had executed a deed of wakf, and the Assistant Controller held that the wakf properties valued at Rs. 3,61,939, mast be deemed to have passed on the death of the deceased under Section 12, Estate Duty Act, or, alternatively, under Section 10 of that Act. An appeal was preferred by the accountable person 1o the Board, and the appeal was dismissed. The present reference has been made at the instance of the accountable person.
The deceased was the absolute owner of property worth Rs. 4,50,000. On January 1, 1940, he executed a deed of wakf in respect of this property creating a wakf-alal-ul-aulad. He appointed himself as the first mutawalli for the period of his life. After him, his wife was to be the mutawalli and after her the sons of the deceased in succession. The primary object of the wakf was to arrange for the maintenance of his sons and daughters and a daughter's son. The profits from certain properties were set apart for charitable purposes. Under paragraph 7 he reserved to himself the power to alter the provisions of the deed in his discretion including the power to modify the rights of the beneficiaries, to include some and exclude others and to increase or decrease their shares.

On November 30, 1947, he executed a supplementary deed making certain changes in the order of succession of mutawallis but without affecting the provision that he would continue as the first mutawalli during his life to be followed by his wife during her life. A further provision was made that he and his wife would, during their respective periods of mutawalliship, have the power to spend the income from the endowed property for their own personal needs, for the benefit of their children and relations or for charity in any way they considered proper. They were under no obligation to maintain accounts or to render accounts to any one. Under a further clause he reserved to himself and his wife the right to reside in certain residential properties.

(3.)TOWARDS the end of the deed he repeated the clause that as mutawalli he could have the power to make changes in the wakf deed including the power to modify the rights of the grantees, to bring in new grantees or to exclude the existing ones and to modify their shares.
On July 1, 1950, the settlor executed yet a second supplementary deed. Under the wakf deed, as now amended, he vacated the office of mutawalli, which now passed to his wife. All that he retained to himself was the right to reside in certain specified house properties, and the power to amend the conditions of the wakf deed, the list of beneficiaries and the extent of their shares.