HAJI KADIR MURTHUZA HUSSAIN SAHEB, REPRESENTED BY HIS POWER OF ATTORNEY AGENT, M G HASAN Vs. MOHAMMED MURTHUZA HUSSAIN SAHIB

JUDGEMENT

(1.) This petition arises out of an application by the petitioner under Secs.3, 5 and 10 of Act XLII of 1923 to the learned District Judge of Chingleput with reference to a certain wakf. The learned District Judge held that the wakf in question was excluded from the purview of Act XLII of 1923 by reason of the definition found in Section 2 (e). That definition says that wakf does not include any wakf such as described in Section 3 of the Mussalman Wakf Validating Act VI of 1913 under which any benefit is for the time being claimable for himself by the person by whom the wakf is created or by any member of his family or descendants. The facts in regard to this wakf are undisputed that it was originally created about 70 or 80 years ago to provide facilities for travellers on the road from Madras to Nellore; i.e., to subserve a charitable purpose. Provision was also made in the document which established it for the enjoyment by the original creator of the wakf and the members of his family of any surplus income that might arise owing to an increase in the population of Madras, or any other cause in future. Apparently at the time when this application was made there had been such an increase of income and the income from the wakf properties went partly to charitable purposes and partly for the maintenance of the family of the creator of the wakf.

(2.) Under Section 3 of Act VI of 1913 certain wakfs are validated. The first of these is a wakf for the maintenance and support wholly or partially of his family, children or descendants by a person professing Mussalman faith. It is evidently under this sub-section that the learned District Judge must have thought that the present wakf came. It seems to me that this view is mistaken, that Section 3 (a) of Act VI of 1913 cannot apply to wakfs which subserve two purposes partly charitable and partly private, but must apply to wakfs originally designed to serve one purpose only and that is private. For the maintenance and support wholly or partially of his family, children or descendants" describes two possible sizes of wakfs, the first one being sufficiently large to maintain the family completely and the second one being insufficiently large for this purpose. That this must be the meaning of the phrase seems to me clear from the use of the word "ultimate" in the proviso. The proviso is, Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character. The existence of this proviso in the section shows, I think, beyond all possibility of dispute that the wakfs which the section validates are those which are primarily and wholly for the purpose of supporting and maintaining the family, children or descendants of the creator of the wakf. All that the Act requires is that in case the family should one day become extinct there should be a provision in the wakf for the benefit of some religious, pious or charitable purpose. I am of opinion therefore that the learned District Judge was wrong in holding that this wakf was excluded from the Act. It follows therefore that the application ought not to have been dismissed on the ground that the Act did not apply and therefore the Judge had no jurisdiction to deal with it in any other way than to dismiss it.

(3.) The petition must be allowed and the application restored to file and disposed of on its merits. The respondent must pay the petitioner's costs of this petition.