SYED SHAH MAIDAL ISLAM Vs. COMMISSIONER OF WAKFS

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of a suit for a declaration that a certain wakf is a wakaf-alal-aulad as defined in Section 6(11) of Act 13 of 1934, and that the action of defendant 1 (Commissioner of wakfs) in treating it as a public wakf and assessing it as such and appointing a committee of management is illegal and ultra vires and for a refund of the excess money realised from the plaintiffs (mutwallis) by improper assessment on the basis of a public wakf. It appears that one Shaik Mohamad Faiz had created a wakf by a wakfnamah dated 1138 B.S. : 1776 by which he had appointed his brother's sons to be mutwallis and after them their male descendants, generation after generation and had provided that the income from the wakf properties should be spent on certain religious and charitable objects and that the balance left unspent should go to the mutwallis. The plaintiffs claim to be descendants of the original mutwallis and allege that it has never been necessary to spend more than 25 per cent, of the annual income of the wakf properties on the religious and charitable objects mentioned in the wakfnama and that therefore the wakf is of a class known as wakf-alal-aulad and not a public wakf and that defendant 1 was wrong in not treating it as such--various pleas in defence were taken by defendant 1 who alone entered appearance, the other defendants who were members of the committee of management took no part in the contest. Several issues were framed but we are concerned in this appeal only with part 1 of Issue 4, viz., Is the wakf a public wakf or a private wakf?

(2.) The trial Court decided that issue in favour of the plaintiffs and decreed the suit; on appeal the lower appellate Court reversed that decision and dismissed the suit, the plaintiffs thereupon preferred the present appeal. It has been urged before us on behalf of the appellants that the expression "wakif for himself or any member of his family or descendants" in Section 6 Clause 11 of Act 13 of 1934, includes the descendants not only of the wakif but also of his family and that as the original mutawallis were members of the family of the wakif and the present mutwallis are their descendants, they are included within the scope of Section 6 Clause 11 of the Act and reference in this connexion was made to the decision in Ghazanfar Hossein V/s. Mt. Ahmadi Bibi . It was argued that such being the position and as it has never been necessary to spend more than 25 per cent, of the income for the religious and charitable objects mentioned in the wakafnamah and as the balance 73 per cent, or more went to the descendants of the family of the wakif, even though in their capacity of mutwallis the wakif fell within the class of wakf-alal-aulad as defined in Section 6 Clause 11 and the classification and treatment of it as a public wakf by the defendant 1 was illegal and ultra vires.

(3.) The learned Advocate for the respondent, although he does not wish to challenge the claim that the original mutwallis were members of the family of the wakif contends that conceding that the original mutwallis were members of the family of the wakif the present mutwallis--the plaintiffs are not so and as the word "descendants" in Section 6 Clause 11 denotes the descendants of the wakif only and not of his family the wakf no longer continues to be a wakf-alal-aulad within the meaning of Section 6 Clause 11 of the Act. Furthermore the provision in the wakfnamah for payment, it is pointed out, was solely as remuneration to the mutwallis for discharging their duties and not as maintenance for supporting "members of his (wakif s) family or deaden, dants." Lastly it is said that in any event there is nothing in wakfnamah, nor is there anything specific in the evidence which shows that at least 75 per cent, of the net available income from the wakf estate, is for the time being payable to the wakif or to any member of the wakif's family or their descendants, (taking the word "descendants" in Section 6 Clause 11 to include descendants of the wakif's family as well). On the question whether the word "descendants" in Section 6 Clause 11 of Act 13 of 1934, includes the descendants of the wakif's family as well, we are inclined to take the view that it does not and that the expression "any member of his family or descendants" refers to the wakifs family and the wakif's descendants. We also think that the words "for himself" in the expression "payable to the wakif for himself or any member of his family or descendants" and the definition of "benefit" as given in Section 6 Clause 2 indicate that the payment which is to be made should not be solely as salary for the performance of any duty imposed. We do not think however that it is necessary to decide these matters in this case as upon the terms of the wakfnamah we hold that it has not been established by the plaintiffs that not less than 75 per cent, of the net income is payable to them under the wakf.