MOHAMMED EBRAHIM KASSAM SAIT Vs. KERALA WAKF BOARD ERNAKULAM

JUDGEMENT

(1.) THE point that arises for decision in this case is as to whether S. 46 of the Wakf Act, 1954 is attracted to that portion of the income of the Abdul Sathar Haji Moosa Dharmasthapanam (of which the petitioners are the managing trustees) which under Ext. P-1 Will of 1099 M. E. (1923 A. D.)is to be utilised for the maintenance of the testator's poor and needy descendants. Under that Will the income of the Dharmasthapanam derived from the b schedule properties mentioned therein which the testator, late Abdul Sathar haji Moosa Sait, permanently dedicated in favour of the Dharmasthapanam is to be apportioned in the ratio of 1:2:1 for the objects mentioned in Clause. 6, 9 and 13 respectively. THE objects stated in Clause. 3 are admittedly purposes recognised by Muslim Law as pious, religious or charitable. Under Clause. 13,1/4th of the income is to be utilized for acquiring new properties for the dharmasthapanam, the income derived from which also, as per Clause. 14, is, in turn, subjected to the apportionment in the same ratio and utilisation for the same purposes as the income from the B schedule properties. THE remaining 50 per cent of the income has been set apart for the maintenance and education of the testator's descendants [through his predeceased son and through his (the testator's) daughters] who are indigent and needy, a situation which the testator hopes and expects would not arise and he earnestly prays to Almighty god, to save them from. It is further provided in Ext. P-1 Will that on failure of this object for the reason that there are no such descendants as are poor and destitute, the whole of this 50 per cent of the income, or otherwise, the surplus, if any, after meeting the expenses on this score that is available out of this 50 per cent of the income, as the case may be, is to be used, along with the 25 per cent of the income directed to be spent for acquiring new properties, for that purpose. Above all, on total failure of descendants wherefore no occasion will thereafter arise to apply any portion of the income for the maintenance of the testator's descendants who are in needy circumstances, that is to say, on a complete failure of this object, the whole of the 50 per cent of the income allocated for that purpose, is also to be spent for the objects mentioned is Clause. 3, which, as already noticed, admittedly, are purposes of a pious, religious or charitable nature under Muslim Law, Under clause. 13 there is a complete and absolute prohibition of sale of the dharmasthapanam's properties or creation of encumbrances thereon.

(2.) IT is to be noted, that under the scheme for the application of the income (the manafi) as set down in Ext. P-1 Will, the testator does not take any temporal benefit thereunder (such benefit is prohibited by all schools of Muslim Law except under the Hanafi Law as expounded by Abu Yusuf See Tyabji on Muslim Law, 4th Edition, P. 4950) nor does it benefit any of his descendants who are not indigent and needy. The object is not aggrandizement of the testator's family estate, but to help such of his descendants who by fortuitous circumstances happen to be indigent and destitute, and to ameliorate their conditions of life to a little extent. That the beneficiaries thereunder constitute one specified class of the poor, the testator's poor descendants, and not the poor as a class, will not in my view make the object of the scheme a secular one and not a pious, religious or charitable one recognized by Muslim Law. Amelioration of the conditions of life of the poor, and their maintenance, be they one's own relations or not, is a meritorious object in any religion, and the motive behind it is a religious one, namely to approach God by doing good to his fellow men who are needy and destitute. IT is therefore pious and charitable as well.

(3.) ANOTHER authority relied on behalf of the petitioners is the decision in Thakur Mohammed Ismail versus Thakur Sabir Ali and others air. 1962 SC. 1722. As stated in para 12 of that decision the court was not there concerned with Mahomedan Law and what constitutes a charitable use under that law. In that case one of the questions that fell for consideration was whether a wakf deed where under an insignificant portion of the income would be used for certain religious purposes, and the rest of the income, for the benefit of the wakif and his descendants from generation to generation till the line of the wakif is completely extinct when alone the whole of the income would become available for use for charitable or religious purposes, is hit by the rule against perpetuity statutorily laid down in S 12 of the Oudh Estates, act, 1869, an Act which applies not only to Mahomedan Talukdars but to talukdars of all religions. S. 18 of that Act read with the Mussalman Wakf validating Act, 1913 was attempted to be pressed into service to save the above said wakf from the clutches of the rule against perpetuity enunciated in S. 12 of the above said Act; reliance was also placed on the dissenting judgment of ameer Ali J in Bikani Nia v. Shuklal Poddar ILR 20 Cal. 116 (FB ). The Supreme court noticed that in Abul Fata Mohamed Ishack's case 22 I. A. 76 (PC.) it was ruled that a wakf under which the beneficiaries were the descendants of the wakif could not be treated as one for charitable purpose even under the mohamean Law, and said that though under the Wakf Validating Act a Muslim can create a wakf-alalaulad, it does not mean that the purpose of such a wakf is necessarily a religious or charitable purpose. It was held that that wakf deed is not saved under S. 13 of the Oudh Estates, Act, 1869 from S. 12 of that act-under S. 18 an estate or any portion thereof or any interest therein cannot be given to religious or charitable use except by an instrument of gift signed by the donor and attested by two or more witnesses not less than three months before his death and presented for registration within one month from the date of its execution and registered, and the Supreme Court construed this provision as providing the procedure for making gift for charitable and religious purposes without in any way violating S. 12 in so far as that section does not, like S. 18 of the Transfer of Property Act, 1882, exempt a transfer 'for the benefit of the public in the advancement of religion, knowledge, commerce, health, safety or any other object beneficial to mankind'. I do not think that this decision in any manner is helpful to the petitioners to contend for the position that the provision in Ext P-1 for maintenance of the testator's poor and needy descendants is not a pious, religious or charitable object under muslim Law, particularly in the light of the later and larger Bench decision of the Supreme Court discussed in the preceding paragraph.