MIRAJUDDIN Vs. NANKU AND OTHERS

JUDGEMENT

(1.) THE main contention of learned Counsel for the Appellant is that by passing the Mussalman Wakf Validating Act (VI of 1913) the legislature intended to revert to the orthodox view propounded by Hon. Sir Amir Ali and others of his views. He contended that now a provision for the maintenance of the Waqif's family and children is itself a charitable and pious object and that no waqf can be invalidated on the ground of remoteness of the ultimate dedication to the poor etc. This is contrary to the clear indications in the said Act itself. The language and the very existence of the proviso added to Section 3 makes it quite clear that a Waqf providing for maintenance of the children etc. would not be valid unless the benefit is ultimately "reserved for the poor or any other purpose recognised by the Mussalman law as religious, pious or charitable etc.". It could not have been so provided if the legislature thought that a provision for the maintenance of family and children etc. was itself a charitable object recognised by the Mussalman law. Moreover, the very fact, that a Waqf providing for the maintenance of a specified class of persons only is saved, shows that the legislature recognised that Waqfs postponing the ultimate benefit to the poor etc. farther would be defeated. The words "No Waqf shall be deemed to be invalid merely because" etc. used in Section 4 signify clearly that in a case where there were other provisions which postpone the ultimate benefit still further, the waqf shall be deemed valid.

(2.) LASTLY , if the legislature intended to import the principle that a Waqf will not be defeated, as contended for by the learned Counsel for the Appellant, it was easiest for the legislature to provide that a Waqf would not be invalid by reason of remoteness of the ultimate dedication to the poor etc. No such provision having been made, the legislature obviously accepted the Mussalman law on this subject as interpreted by the Privy Council but only brought about a limited change as provided in Sections 3 and 4 thereof.

(3.) I have had the advantage of reading the judgment of my brother Lokur, J., with which I agree. He has dealt with facts and law in detail, but I would like to add a few paragraphs of my own.