MD HUSSAIN SAIT Vs. CONTROLLER OF ESTATE-DUTY

JUDGEMENT

(1.) UNDER s. 64 of the E.D. Act, 1953, the following question has been referred to us for our opinion "Whether, on the facts and in the circumstances of the case, it has been rightly held that the inclusion of the sum of Rs. 4, 55, 000 to the estate of the deceased was valid on the ground that section 5 read with section 12(1) together with the Explanation would apply to the instant case?By a document dated November 1, 1934, one (late) Mohamed Ismail created a wakf in favour of himself, his family and his descendants and ultimately for the benefit of the poor, of the properties belonging to him. This wakf was of a permanent character. He dedicated the immovable properties described in the schedule thereunder for his benefit and for the benefit of his family, children and descendants and ultimately for the benefit of the poor Muslims in accordance with the conditions and rules stipulated in the wakf deed. He also appointed his father, Mohamed Musa Sait, as the mutawalli of the aforesaid wakf. After the demise of the father, the office of mutawalli would be hereditary in the family. Clause 4 of the deed provided that the succession to the office of mutawalli would be from the deceased's lineal male descendants. Clause 9 provided that the mutawalli would be entitled to a remuneration of Rs. 40 a month in addition to any actual expenses incurred in looking after the properties from the income of the said end owed properties. Clause 10 gave power to the mutawalli to reserve two months' rent of the endowed properties for the repair and maintenance of the said properties. Clause 13 which is important for the purpose of this case stipulates how the surplus of the income from the endowed properties should be utilised.

(2.) THAT clause is in these terms" *THAT after deducting the disbursements referred to above from the income of the endowed properties mentioned in the schedule hereunder written, the surplus be divided every month by the mutawalli for the time being among the members of my family including myself and my wife in the following manner, viz., two shares for a male, and one share for a female for ever so long as there are any and until my posterity lasts and should it become extinct, then the income shall be expended for the benefit of the poor and the Mahomedans, preference being given to the bringing up and maintenance of Muslim orphans and widows, female members including my wife also should she survive me. The mutawalli shall be entitled to his aforesaid share exclusive of or in addition to Rs. 40 or Rs. 20 a month paid to him as remuneration as stipulated above. "It is the case of the revenue that, on the facts of the case, on the death of the said Mohamed Ismail, s. 12 would be attracted, and estate duty on the whole value of the settled properties, namely, Rs. 4, 55, 000, will have to be paid by the accountable person.