R.S.Bachawat, J. - (1.) This reference and the connected references raise the question whether Muslim Wakf land held partly for the purpose of providing allowances to the wakf's family, children or descendants is land held exclusively for religious and/or charitable purposes so as to at tract the protection of Section 6(1)(i) of the West Bengal Estates Acquisition Act, 1953. This reference arises out of a petition by the mutwalli Penda Mohmmed wakf estate under Article 226 of the Constitution asking for an order directing the respondents to recall the notices issued under Section 10(2) of the West Bengal Estates Acquisition Act, 1953 requiring the petitioner to give up possession of the khas wakf lands in the District of Jalpaiguri and to forbear from giving effect to the notices and the orders and decisions relating thereto. The petitioner has obtained a rule calling upon the State of West Bengal and the other respondents to show cause why the aforesaid order should not be made. The wakf has the interest of an intermediary in the wakf lands, By virtue of Section 4 of the West Bengal Estates Acquisition Act 1953 and; the notifications issued by the State Government thereunder all estates and the rights of every in, each such estates situated in the district have vested in the State free from all encumbrances. The Petitioner claims that he is entitled to retain the lands under Section 6(1)(i) of the West Bengal Estates Acquisition Act 1953 read with Sections 2(c) and 2(n) of the Act on the ground that the lands are held by him under a trust or endowment or other legal obligation exclusively for a purpose which is religious or charitable or both. Sections 6(1)(i), 2(c) and 2(n) of the Act are as follows: 6(1)(i); "where the intermediary is a corporation or an institution established exclusively for a religious or a charitable purpose or both, or is a person holding under a trust or an endowment or other legal obligation exclusively for a purpose which is charitable or religious or both - land held in khas by such corporation or institution, or person for such purpose." 2(c) - "charitable purpose" includes the relief of the 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.
(2.) The petitioner as the mutwalli of the wakf is merely a manager; the wakf property is, not vested in him. Nevertheless he represents the interest of the wakf in the wakf property; he is a person holding the wakf property under an endowment or other legal obligations for the purposes of the wakf, see Tribune Press, Trustees Lahore v. Income-tax Commissioner, 66 Ind App 241 at p. 252: (AIR 1939 PC 208 at p. 211); Vidya Varuthi Thirtha Swamigal v. Baluswami, 48 Ind App 302: (AIR 1922 PC 123). The wakf in question was created by Munshi Penda Mohammed by a deed of waktnama dated the 8th December, 1918. By this, deed substantial portions of the income of the wakf property are permanently dedicated for religious and charitable purposes such as the maintenance and upkeep of a mosque and a madrassa, the performance of religious festivals and ceremonies and the distribution of alms and cloths to the poor and the fakirs. But the deed also allocated substantial portions of the income of the property for payment of allowances to the wakifs descendants in perpetuity. The deed provides for payment of an allowance of Rs. 200/- per month to the wakif's grandson and his heirs from, generation to generation and an allowance of Rs. 25/- per month to the wakifs daughter and her heirs from generation to generation. The deed appoints the wakif as the first mutwalli and seeks to provide for a perpetual succession of the members of his family as mutawallis. Beyond doubt the wakf property is held by the petitioner mutwalli partly for charitable and/or religious purposes. But the petitioner is not entitled to the benefit of Section 6(1)(i) unless the property is held by him exclusively for those purposes. Now the wakf property is also held by him for the purpose of providing allowances to the wakifs descendants. The point in issue is whether these allowances are of a religious or charitable nature.
(3.) The wakif was a Sunni Mussalman and was presumably governed by the Hanafi School of Mussalman Law. Under the Hanafi Law even a provision by a wakif for his own maintenance and support during his life-time is a pious and meritorious act. The Prophet is reported to have said "a man giving maintenance to himself is giving sadaqa see Seymor Vesey Fitgerald Muhammadan Law, 1961 edition, page 212; Meer Mahamed Israil Khan v. Sashti Charan Ghose, ILR 19 Cal 412 at p. 430. And in all systems of Mussalman Law a wakif making a provision or the support of his wife or his children or his kindred is considered to be giving a sadaqa. A sadaqa is pleasing in the sight of God and the most excellent of sadaqa is that which a man bestows on his own family. But such a provision though a sadaqa is not a gift for a religious or charitable purpose under the Mussalman Law as administered by our Courts. On this ground the Privy Council held that a wakf was in valid if its effect was to give the property either wholly or substantially to the waktt's family, children and descendants, Sheikh Mohamed Ahsanulla Chowdhury v. Amarchand Kundu 17 Ind App 28(P.C); Abdul Gafar v. Nizamuddin, 19 Ind App 170 (PC), even though the ultimate benefit after the extinction) of the family was reserved for the poor or for other religious or charitable purposes, see Abdul Fata Mohamed Ishak v. Russomoy Dhur Chowdhury, 22 Ind App 76 (PC); Mujibannessa v. Abdul Rahim, 28 Ind App 15 (PC); Khajeh Solehman v. Salimullah, 49 Ind App 153: (AIR 1922 PC 107); Balla Mai v. Ataullah Khan, 54 Ind App 372: (AIR 1927 PC 191; Beli Ram and Brothers v. Mohammed Afzal, Pak LR (1949) Lah 1: AIR 1948 PC 168. But the wakf including the gifts to the wakif's children and descendants was valid if the property was substantially dedicated to charity, see Ramanandan Chettiar v. Vava Levvai Marakayar, 44 Ind App 21: (AIR 1916 PC 86). The Wakf Validating Act, 1913 validated wakt's for the maintenance and support wholly or partially of the wakif's family, children or descendants, provided the ultimate benefit was reserved for the poor or for other religious and charitable purposes. This Act has now retrospective effect. But the point in dispute before us is not whether the wakf is valid but whether the provision in the wakf for the maintenance and support of the wlakif's family, children or descendants is of a charitable or religious nature. Now the Wakf Validating Act, 1913 does not declare that such a provision is of a religious or charitable nature; on the contrary Section 3 of the Act suggests that the purpose of such a provision is neither religious nor charitable. The decisions of the Privy Council authoritatively establish that the maintenance and) support of the wakil's family, children and descendants is not a religious or charitable object according to Mussalman Law. Neither the Wakf Validating Act 1913 nor the Shariat Act 1937 override the Privy Council decisions on this point, see Syed Mohiuddin Ahmed v. Sofia Khatun, 44 Cal WN 974, at pp. 979-80: (AIR 1940 Cal 501 at; pp. 504-506). In this background we have to interpret (Sections 6(1)(i), 2(c) and 2(n) of the West Bengal Estates Acquisition Act, 1953.;