Nawab Zain Yar Jung & Ors Vs. The
Director of Endowments & Ors [1962] INSC 129 (9 April 1962)
09/04/1962 GAJENDRAGADKAR, P.B.
GAJENDRAGADKAR, P.B.
AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR
P.(CJ) WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA
CITATION: 1963 AIR 985 1963 SCR Supl. (1) 469
CITATOR INFO :
D 1976 SC1569 (58)
ACT:
Trust Property-Wakf and Public Charitable
Trust--Distinction-Rule of interpretation of documents-The Wakf Act, 1954 (29
of 1954), ss. 3(1), 9, 28-Hyderabad Endowment Regulation, 1348-F (1939).
HEADNOTE:
The appellants were appointed trustees by the
Nizam of Hyderabad by a trust deed executed on Tune 14, 1951. On March 2, 1959,
respondent No. 1, who was the Director of Endowments and joint Secretary, Board
of Revenue, served a notice on the appellants calling upon them to register the
said 470 trust under the Hyderabad Endowment Regulation, 1348-F (1939) and to
render accounts of the same. The appellants contended that the trust was not
governed by the said Regulation. Thereupon the first respondent scaled the pay
office of the said trust. Although the seal was subsequently removed by an
order of the Government of Andhra Pradesh, the appellants were asked to produce
their books of account and not to operate upon the banks in which the money of
the trust was deposited, and also not to spend any amount till further orders.
Appellants 1 to 3 filed a writ petition in
the High Court and prayed for a writ of prohibition and certiorari. The fourth
appellant was subsequently appointed an additional trustee and added as a
petitioner. The writ petition was dismissed by the High Court which held that
s. 6 of Part B States (Laws) Act, 1951, did not apply, and the Hyderabad
Endowment Regulation and the Rules framed thereunder could not be said to have
been repealed. It also held that the Regulation and the Rules did not
contravene the fundamental rights guaranteed by Arts. 14,19 and 31 of the
Constitution of India. The appellants came to this Court by special leave.
While the appeal was pending in this Court,
the Muslim Wakf Board, Hyderabad, constituted under s. 9 of the Wakf Act, 1954,
wrote to the Secretary of the trust that the trust was a Wakf within the
meaning of the Wakf Act, and steps should be taken for its registration under
s. 28 of the Act. When the order was not complied with in spite of reminders,
the Board itself caused the registration of the trust to be made. When the
registration was published, respondent No. 2 moved the High Court for quashing
the registration of the trust on the ground that the trust was not a Wakf and
the provisions of the Wakf Act did not apply to it. Under these circumstances,
the Wakf Board was also made a party in this Court. But the parties agreed that
if the trust was held to be a wakf within the meaning of the relevant
provisions of the Wakf Act and its registration under s. 28 was found to be
valid, the impugned Regulation and the Rules framed thereunder would be
inapplicable to the trust and the appeal would have to be allowed; on the other
hand, if it was held that the trust was not a Wakf and the provisions of the Wakf
Act were not applicable to it, its registration under s. 28 would be invalid.
Held, that the trust created is not a Wakf
but a secular public charitable trust. The Wakf Act, 1934, does not apply to
it, and its registration under s. 28 is invalid and inoperative. The whole
scheme of the trust deed vests the title in the trustees and gives them
absolute discretion to use the said property and its income for any of the
charitable purposes 471 specified in the document. The dominant intention of
the settler in creating the trust was to help public charity in the best sense
of the words, 'public charity' not confined to any caste, religion or creed.
This is inconsistent with the concept of a Wakf The appointment of non-Muslims
as trustees is indicative of the fact that a Wakf was not intended. The
document calls the author of the trust the settlor and the appellants trustees
and that introduces the concept of the trust as contemplated by English Law,
and that is against the concept of a Wakf.
Vidya Varuthi Thirtha v. Balusami Ayyar,
(1921) L. R. 48 I.
A. 302, referred to.
It is an elementary rule of construction that
if two constructions arc reasonably possible, the one which gives effect to all
the clauses of the document must be preferred to that which defeats some of its
clauses.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 109 of 1961.
Appeal by special leave from the Judgment and
order dated October 20, 1959, of the Andhra Pradesh High Court in Writ Petition
No. 337 of 1959.
C. K. Daphtary; Solicitor-General of India,
A. V. Viswanatha Sastri, Anwaruallah Pasha, S. Ranganatham, J. B. Dadachanji,
O. C. Mathur and Ravinder Narain, for the appellants.
D. Narsaraju, Advocate-General for the State
of Andhra Pradesh, G. R. Ekbote, D. Prasanna Kumari, D. Venkatappayya Sastri
and P. D. Menon, for respondents Nos. 1 and 2.
G. S. Pathak, S. M. Dubash and V. J.
Merchant, for respondent No. 3.
1962. April 9. The Judgment of the Court was
delivered by GAJENDRAGADKAR, J.-This appeal is directed against the order
passed by the Andhra High Court dismissing an application for a writ filed by
the appellants in that Court. The four appellants are 472 the Trustees
appointed by the Nizam of Hyderabad by a Trustdeed executed by him on June 14,
1954. On March 2, 1959, respondent No. 1 who is the Director of Endowments and
Joint Secretary, Board Revenue, served a notice on the appellants calling upon
them inter alia, to register the said Trust under the Hyderabad Endowment
Regulation, 1348-F (1939) and to render accounts of the same from the date of
its inception to the date of the notice within a week. The appellants disputed
the authority of respondent No. 1 to issue the said notice and urged that the
trust was not governed by the said Regulation. Thereupon, the first respondent
issued an order on March 23, 1959, and in pursuance of it, sealed the Pay
Office of the said Trust.
Subsequently, on March 25, 1959, the said
seal was removed in pursuance of the order issued by the second respondent, the
Government of Andhra Pradesh. The appellants then were called upon to produce
their books of accounts in order that the first respondent may scrutinize them
and ascertain all the relevant facts in respect of the Trust as required by
Rule 8 of the Rules framed under the said Regulation. The appellants were also
directed not to operate upon the banks with which the moneys of the Trust were
deposited and not to spend any sum on the objects of the Trust until further
orders.
On March 24, 1959, appellants 1 to 3 filed
the present writ petition and prayed inter alia that a writ of Prohibition and
Certiorari or other writ or appropriate order or direction should be issued in
respect of the notice served on them by the 1st respondent on March 2, 1959,
and his subsequent order of March 23, 1959. The 4th appellant was subsequently
appointed an additional trustee and was thereafter added as a petitioner to the
said petition on October 12, 1959.
In their writ petition, the appellants
alleged that the said Regulation had ceased to be operative 473 in Hyderabad by
reason of section 6 of Part B States (Laws) Act 1951 (No. III of 1951) which
had been extended to Hyderabad as from 1st April, 1951. Section 6 of the said
Act provides that if immediately before the appointed day, there was in force
in any Part B State any law corresponding to any of the Acts or Ordinances now
extended to that State, that shall, save as otherwise expressly provided, stand
repealed. Amongst the laws extended to Hyderabad by the said Act were the
Indian Trust Act, 1882, Charitable Endowments Act (VI of 1890) and Charitable
and Religious Trusts Act (XIV of 1920). Subsequently, by Central Act If of
1951, the Civil Procedure Code was made applicable to Hyderabad and section 92
of the said Code thus applied to proceedings contemplated by it. The appellants
urged that the aforesaid laws which were thus extended to Hyderabad
corresponded to the Hyderabad Endowments Regulation and so, by virtue of the
provisions of s. 6 of the Part B States (Laws) Act, the said Regulation stood
repealed as from April 1, 1951. According to the appellants, the said
Regulation and the Rules framed thereunder were ultra vires also for the reason
that they were violative of the fundamental rights guaranteed by Articles 14, 19
and 31 of the Constitution. It is broadly on these grounds that the appellants
based their claim for an appropriate writ against both the respondents.
On the other hand, the respondents contended
that the Regulation and the Rules framed thereunder were not coextensive with
the provisions of the Acts which had been extended to Hyderabad by the Part B
States (Laws) Act and so, s. 6 of the Act was inapplicable to them. The
respondents also pleaded that the said Regulation and the Rules did not
contravene any of the fundamental rights guaranteed by Part III of the
Constitution. As to the orders issued by respondent No. 1, it was the 474
respondents' case that the said orders were justified and could not be set
aside.
The High Court held that the order passed by
the 1st respondent prohibiting the disbursement of moneys by the appellants was
inappropriate and that the 1st respondent was not justified in directing the
seizure of account books and records and taking forcible possession of the
same.
However, on the main points raised by the
appellants, the High Court has held that s. 6 of the Part B States (Laws) Act
did not apply and so, the Regulation and the Rules framed there under cannot be
said to have been repealed, as from April 1, 1951. The contention raised by the
appellants that the said Regulation and the Rules contravened the fundamental
rights guaranteed by Articles 14, 19 and 31 was likewise rejected. In the
result, the High Court dismissed the writ petition filed by the appellants. The
appellants then applied for a certificate to the High Court, but their
application was rejected. That is why the appellants moved for and obtained
special leave from this Court and it is with the special leave thus granted to
them that they have come to this Court by the present appeal. The appeal seeks
to raise the same two questions for our decision.
While the appeal was pending in this Court,
certain developments took place in regard to the trust in question and it is
necessary to mention them. It appears that on September 10, 1956 the Muslim
Wakf Board, Hyderabad, constituted under B. 9 of the Wakf Act, 1954 (Central
Act No. 29 of 1954), wrote to the Secretary of the Trust that in the opinion of
the Board, the Trust was a Wakf within the meaning of the Wakf Act and that
steps should be taken for its registration under s. 28 of the said Act. For
nearly three years thereafter, no step was taken to register the wakf nor did
the Board pursue its demand that the trust should be registered. In March,
1959, however, the Board 475 sent a further communication to the Secretary and
called upon him to get the trust registered. The appellants did not comply with
this requisition. On December 18, 1960, the Board purported to exercise its
authority under s. 28 of the Wakf Act and itself caused the registration of the
trust to be made. The registration so made was published in the Andhra Pradesh
Official Gazette on January 12, 1961.
Respondent No. 2 then moved the Andhra High
Court by a writ petition No. 791 of 1961 for quashing the said registration of
the Trust. It urged that the trust in question was not a wakf and so, the
provisions of the Wakf Act were inapplicable to it; and thus, the validity of
the registration of the trust became a matter of dispute between the Wakf Board
and respondent No. 2.
When this appeal was called on for hearing
before this Court on December 6, 1961, the learned counsel for both the parties
informed the Court about the developments in question and stated that the
registration of the trust had changed the complexion of the dispute which made
it necessary that this Court should consider the nature of the trust and decide
whether the registration of the said trust under s. 28 of the Wakf Act was
valid or not. Meanwhile, on August 9, 1961, the Wakf Board had applied to
intervene in the present appeal, so that when the appeal was heard by this
Court on December 6, 1961, the appellants, the respondents and the Wakf Board
were all heard and by consent, an order was passed that the appellants should
be allowed to urge additional grounds in support of their appeal, these grounds
being based on the registration of the trust. It was also ordered that the Wakf
Board be permitted to be added as a party to the appeal, and that all the
parties should be permitted to file additional statements in the case within
the time specified. When the parties obtained this order by consent, it was
understood that they would make the 476 necessary application to the Andhra
High Court for adjournment of the hearing of the writ petition filed by
respondent No. 2, No. 791 of 1961, pending the decision of the appeal in this
Court. The result of this consent order is that all the points of dispute
between the parties would be decided by this Court and so, the final decision
of this Court would govern the decision of the writ petition filed by
respondent No. 2 in the Andhra High Court against the Wakf Board. In pursuance
of the said consent order, the appeal has now come before us for final
disposal.
It is common ground that if the trust is held
to be a wakf within the meaning of the relevant provisions of the Wakf Act and
its registration under a. 28 is found to be valid,, the impugned Regulation and
the Rules framed thereunder would be inapplicable to the said trust and so, in
that event, the appeal would have to be allowed. If on the other band, it is
held that the trust is not a wakf and that the provisions of the Wakf Act are
inapplicable to it, then its registration under s. 28 of the said Act would be
invalid, and the contentions which the appellants initially wanted to raise in
their appeal would fall to be considered. That is why, logically, the first
point to consider in this altered situation would be whether the Wakf Board was
justified in registering the trust under s. 28 of the Wakf Act (hereinafter
called the Act): and that takes us first to consider the nature of the wakf to
which the Act applies.
The Act was passed in 1954 for the better
administration and supervision of wakfs. Section 3(1) defines a wakf as meaning
a permanent dedication by a person professing Islam of any movable or immovable
property for any purpose recognised by the Muslim law as points, religious or
charitable and includes:(i) a wakf by user;
477 (ii) mashrut-ul-khidmat; and (iii) a
wakf-alal-aulad to the extent to which the property is dedicated for any
purpose recognised by Muslim law as pious, religious, or charitable;
and "wakif " means any person
making such dedication.
Consistently with this definition
"wakf", a "beneficiary" has been defined by s. 3(a)as
meaning a person or object for whose benefit a wakf is created and it includes
religious, pious and charitable objects and any other objects of public utility
established for the benefit of the Muslim community.
It is thus clear that the purpose for which a
wakf can be created must be one which is recognised by Muslim law was pious,
religious, or charitable, and the objects of public utility which may
constitute beneficiaries under the wakf must be objects for the benefit of the
Muslim community.
Naturally, the wakf contemplated by the Act
can be either "Shia wakf " or "'Sunni wakf : Shia wakf meaning a
wakf governed by Shia law Cs. 3(j)] and Sunni wakf meaning a wakf governed by
Sunni law [s. 3(k)]. This broad division of wakf into two categories is
reflected in other provisions of the Act. Section 4(3) provides, inter alia,
that the Commissioner shall, after making such enquiry as he may consider
necessary submit his report to the State Government containing the specified
particulars-amongst them is the particular in regard to the number of wakf in
the State, showing the Shia wakfs and Sunni wakfs separately. It would thus be
clear that the preliminary survey of wakfs contemplated by s.4 is intended to
collect data about the wakfs in the State to divide them into Shia wakfs and Sunni
wakfs separately. Then in regard to the appointment of the members of the Board
with which s. II deals, the proviso to the said section lays down that in
determining the number of Sunni members 478 or Shia members is the Board, the
State Government shall have regard to the number and value of Sunni wakfs and
Shia wakfs to be administered by the Board. Sections 6 provides for the
settlement of a dispute is regard to the question as to whether a wakf is a
Shia wakf or a Sunni wakf and a. 15 which deals with the functions of the Board
has an explanation which provides that the powers of the Board shall be
exercised(i) in the case of a Sunni wakf, by the Sunni members of the Board
only; and (ii) in the case of a Shia wakf, by the Shia members of the Board only.
it is thus clear that the wakf contemplated
by the Act can be either a Shia wakf or a Sunni wakf and the provisions with
regard to the management of the wakf are accordingly made on that basis.
The Muslim character of the wakf is also
emphatically brought out by certain other provisions of the Act. The proviso to
B. 15(1), for instance, requires that in exercising its powers under the Act in
respect of any wakf, the Board shall act in conformity with the directions of
the wakf, the purposes of the wakf and any usage or custom of the wakf
sanctioned by the Muslim law. Similarly, s.15(2)(j) lays down that the Board
has power to sanction leases of property for more than three years or mortgage
or exchange properties according to the provisions of Muslim 'law-. Section 21
requires that there shall be a Secretary to the Board who shall be a Muslim and
he shall be appointed by the State Government in consultation with the Board ;
and s. 13 provides that a person shall be disqualified for being appointed a member
of the Board if he is not a Muslim.
There can, therefore, be no doubt that the
wakfs with which the Act deals are trusts which are treated as wakfs under the
definition of s. 3(1) and as such, a trust 479 which does not satisfy the tests
prescribed by the said definition would be outside the Act. This position is
not disputed.
At this stage, it is necessary to distinguish
between wakfs recognised by Muslim law and religious endowments recognised by
Hindu Law on the one hand and public charitable trusts as contemplated by the
English Law on the other. This question has been considered by the Privy
Council in Vidya Varuthi Thirtha v. Balusami Ayyar (1) Mr. Ameer Ali who
delivered the judgment of the Board observed that "it is to be remembered
that a "trust" in the sense in which the expression is used in
English law, is unknown to the Hindu system, pure and simple. Hindu piety found
expression in gifts to ideals and images consecrated and installed in temples,
to religious institutions of every kind, and for all purposes considered
meritorious in the Hindu social and religious system ; to Brahmins, Goswamis,
Sanyasis, etc................ When the gift is directly to an idol or a temple,
the seisin to complete the gift is necessarily effected by human agency. Called
by whatever name, he is only the manager or custodian of the idol or the
institution..................... In no case is the property conveyed to or
vested in' him, nor is he a trustee in the English sense of the term, although
in view of the obligations and duties resting on him, he is answerable as a
trustee in the general sense for maladministration." (p. 31 1 ). Thus,
these observations show that the basis concept of a religious endowment under
Hindu Law differs in essential particulars from the concept of trust known to
English Law.
Similarly, the Muslim law relating to trusts
differs fundamentally from the English law. According to Mr. Ammer Ali,
"the Mohammadan laws owes its origin to a rule laid down by the (1) (1921)
L.R. 48 I.A 302 480 Prophet of Islam; and means "the tying" up of
property in the ownership of God the Almighty and the devotion of the profits
for the benefit of human beings." As a result of the creation of a wakf,
the right of wakif is extinguished and the ownership is transferred to the
Almighty. The manager of the wakf is the mutawalli, the governor,
superintendent, or curator. But in that capacity, he has no right in the
property belong into the wakf; the property is not vested in him and he is not
a trustee in the legal sense." Therefore there is no doubt that the wakf
to which the Act applies is, in essential features, different from the trust as
is known to English law.
Having noticed this broad distinction between
the wakf and the secular trust of a public and religious character, it is
necessary to add that under Muslim law, there is no prohibition against the
creation of a trust of the latter kind. Usually, followers of Islam would
naturally prefer to dedicate their property to the Almighty and create a wakf
in the conventional Mahommedan sense. But that is not to say that the followers
of Islam is precluded from creating a public, religious or charitable trust
which does not conform to the conventional notion of a wakf and which purports
to create a public religious charity in a non-religious secular sense. This
position is not in dispute. Therefore, the main question which calls for our
decision is : Is the trust executed by the Nizam a wakf to which the provisions
of the Act apply or is it a public charitable trust falling outside the said
Act ? : and the decision of this question would obviously depend upon the
construction of the document by which the trust is created and it is to that
problem that we will now turn.
In construing the document by which the trust
if; created by the Nizam, it is necessary to 481 read its material portion.
Clauses 1 to 4 are relevant for our purpose:"This indenture made at
Hyderabad the 14th day of June, 1954 between his Exalted Highness Nawab Sir
Osman Ali Khan Bahadur G.C.S.I., C.
B. E., The Nizam of Hyderabad and Berar
(hereinafter called "the settler" which expression shall unless
repugnant to the context or meaning thereof be deemed to include his heirs,
executors and administrators) of the one part and Nawab Zain Yar Jung Bahadur
of Hyderabad, Muslim, inhabitant and Vapal Pangunni Menon of the Bangalore,
Hindus, inhabitant (hereinafter called "the Trustees which expression
shall unless repugnant to the context or meaning thereof be deemed to include
the survivors or survivor of them and the Trustees for the time being of these
presents and the heirs, executors and administrators of the last surviving
Trustee their or his assigns) of the other part:
Whereas the Settlor has prior, prior to the
execution of these presents, made full and ample provisions for the several
members of his family which enable them to maintain themselves in comfort in
accordance with and benefiting the station of life in which Providence has
placed them and the Settlor has fulfilled his duty as the head of the family
towards them so that with the help of God Almighty they will be able to live in
reasonable comfort even in the altered conditions existing in the present times
:
And whereas in so doing the Settlor has
parted with a large portion of his wealth and assets :
And whereas the Settlor feels that he should
now devote on dedicate a substantial 482 part of his remaining assets for being
utilised for the relief of the poor particularly in the State of Hyderabad and
for the maintenance of religious institutions, particularly in the State of
Hyderabad and for the advancement of education and for other charitable purpose
without distinction of religion, caste or creed :
And whereas in view of the deteriorating
economic conditions particularly in the State of Hyderabad the need to help the
poor and the indigent is much greater now than before and the Settlor is
therefore desirous of making Charitable trust of the shares, securities and
moneys particularly described in the schedule hereunder written (including all
the rights incidental or attached to his holding thereof) of which he is at
present the sole owner :
And whereas the Trustees have agreed to
become the first Trustees of those presents as is testified by their being
parties to and executing those presents ;
And whereas the sum of Es. 88,490/(Rupees
eighty-eight thousand four hundred and ninety only) mentioned in the Schedule
hereunder written has been paid by the Settlor to the Trustees by a cheque
drawn in their favour this day before the execution of these presents.
Now this Indenture witnesseth as follows:
1. For effecting his said desire and in
consideration of the promises the Settlor doth hereby declare that he has,
prior to the execution of these presents, paid and transferred and he doth
hereby confirm such payment and transfer unto the Trustees of all that the said
sum of Rs,. 88, 490/ (rupees eighty-eight thousand four hundred and ninety
only) 483 included in the Schedule hereunder written and further the Settlor
doth hereby assign and transfer unto the Trustees all those shares and
securities described in the Schedule hereunder written together with all the
rights of the Settlor incidental or attached to his holding of the said shares
and securities and all the estate right, title and interest, property, claim
and demand whatsoever at law and in equity of the Settlor of, in and to the
said moneys, shares and securities and every part thereof to have and to hold
receive and take' all and singular the said moneys shares and securities described
in the Schedule hereunder written unto the Trustees for ever upon the Trusts
and with and subject to the powers, provisions, agreements and declarations
hereinafter appearing and contained of and concerning the same.
2. The Trustees do hereby declare that they,
the Trustees shall hold and stand possessed of the said shares, securities and
moneys described in the schedule hereunder written and all the lights
incidental or attached to the holding of the said shares and securities by the
Settlor (all which are hereinafter for brevity's sake referred to as "the
Trust Fund" which expression shall also include cash and any other
property and investments of any kind whatsoever into which the same or any part
thereof might be converted, invested or varied from time to time or such as may
be acquired by the Trustees or come to their hands by virtue of these presents
or by operation of law or otherwise howsoever in relation to these presents)
upon the Trusts and with and subject to the powers, provisions, agreements and
declarations hereinafter declared and contained of and concerning the same.
3. The Trustees shall held and stand
possessed of the Trust Fund upon the following Trusts :
(a) To manage the Trust Fund and collect and
recover the interest, dividends and other income thereof :
(b) To pay and discharge out of the income of
the Trust Fund all expenses and charges for collecting and recovering the
income of Trust Fund and the remuneration of the Trustees payable under these
presents and all other costs, charges and expenses and outgoing of and
incidental to the trusts created by these present and the administration
thereof :
(c) To pay or utilise the balance of such
interest dividends and other income of the Trust Fund (hereinafter called
"the net income of the Trust Fund" and if the Trustees so desire the
corpus of the Trust of any part of the corpus or any one or more of the
following charitable purposes in such shares and proportions and in such manner
in all respects as the Trustees shall in their absolute discretion think fit,
that this is to say (i) for the relief of the poor, particularly in the State
of Hyderabad (Deccan) including the establishment, maintenance and support of
institutions or funds for the relief of any form of poverty.
(ii) for the maintenance, upkeep and support
of public religious, institutions, and otherwise for the 485 advancement of
religion particularly in the State of Hyderabad (Deccan) To The Intent that the
benefit of the present clause shall not be restricted to any particular
religion.
(iii) for the advancement and propagation of
education and learning, particularly among the inhabitants of the State of
Hyderabad (Deccan), including the establishment, maintenance and support of
colleges, schools or other educational institutions, professorships,
lectureships, scholarships and prizes, particularly for the benefit of the
inhabitants of the State of Hyderabad (Deccan).
(iv) for giving medical aid and relief,
particularly to the inhabitants of the State of Hyderabad (Deccan), including
the establishment, maintenance and support of institutions or funds for medical
aid and relief, and (v) for the advancement of any other object of general
public utility, particularly in the State of Hyderabad (Deccan).
4. The trust and charity hereby created shall
be called "H. E. H. Nizam's Charitable Trust."
5. x x x It is, urged by Mr. Pathak who
appeared for 486 the Board that the significant feature of the document is the
desire of the settlor to devote and dedicate a substantial part of his
remaining assets for being utilised for religious purposes, and that is the
distinguishing feature of wakfs. His argument is that in dealing with the
character of the trust created by the document, we should not attach importance
to the words like the 'Settlor' and the 'Trustees' because words are a mere
matter of form and the character of the document must be judged from the
substance of its provisions and not their form. The intention of the document
is the desire of the settlor to dedicate the property which is its
subject-matter to purposes recognised as charitable by Muslim law and so though
the appellants are described as Trustees and though there are certain
expressions showing that the property has vested in them, we should not lose sight
of the basic concept which actuated the settlor in executing the document and
that concept is on of dedication on which wakf are based.
It is also urged that the effect of clauses
relating to the vesting of the property in the appellant as Trustees should be
judged in the light of the character of the property with which the document
deals. The subject matter of the trust is movable property and unless they said
property was assigned to the appellants, they would not have been able to deal
with it, and that alone is the basis and the justification for the vesting
provisions in the document. Therefore, too much importance should not be
attached to the said provisions and it should not be held that since there is a
vesting of legal title in the appellants, the transaction is a trust and not a
wakf. The pervading idea of the document is the dedication of the property to
purposes recognised by Muslim law as valid for a wakf and it is only as a means
to give effect to that idea that the property has been vested in the appellants
that 487 in brief, is the main argument in support of the plea that the trust
is a wakf to which the provisions of the Act apply.
On the other hand, there are certain other
broad features of the transaction which are wholly inconsistent with the
notions of a wakf. The outstanding impression which the document creates is
that the settlor wanted to create a trust for charitable purposes and objects
in a secular and comprehensive sense, unfettered and unrestricted by the
religious considerations which govern the creation of wakf.
Even the clause on which Mr. Pathak relies
for the purpose of showing the intention to dedicate the property to Almighty
makes it perfectly clear that amongst the objects for which the trust was
created were included other charitable purposes without distinction of
religion, caste or creed, and that obviously transgresses the limits prescribed
by the requirements of a valid wakf The same comprehensive character of the
charitable purpose which the settlor has in mind is equally emphatically
brought out by cl. 3(c)(ii). Clause 3 provides that the Trustees shall hold and
stand possessed of the Trust Fund upon the Trusts specified in sub-cls. (a) to
(c). Sub-clause (c)(ii) refers to the maintenance, upkeep and support of public
religious institutions and otherwise for the advancement of religion,
particularly in the State of Hyderabad; and it adds that the benefit of the
present clause shall not be restricted to any particular religion. A public
charitable purpose which is not limited by considerations pertaining to one
religion or another could not have been more eloquently expressed. The dominant
intention of the settlor in creating the trust was to help public charity in
the beat sense of the words, public charity' not confined to any caste,
religion or creed; and it is in that sense that the religious institutions
which are within the purview of the trust are 488 all religious institutions
not confined to any particular religion. Then look at el. 3(c) (v). It provides
that the trust property can be utilised for the advancement of any other object
of general public utility, particularly in the State of Hyderabad. It is true
that the settler wanted the objects of general public utility in Hyderabad to
be preferred and in that sense the document discloses a desire to prefer the
objects of general public utility situated within the territorial limits of
Hyderabad. But it is plain that it was farthest from the mind of the settlor to
impose a limitation that the objects of general public utility should be
confined to those recognised as such by Muslim law. It is thus clear that the
outstanding feature of the trust disclosed by these provisions is plainly
inconsistent with the concept of a wakf and that itself would rule out the view
that the document creates a wakf and not a comprehensive public charitable
trust.
It is true that a large number of provisions
contained in the document are consistent with the view that the document
creates a wakf as much as they are consistent with the view that it creates a
public charitable trust as distinguished from wakf It is, however, patent that
there are some clauses which are inconsistent with the first view, whereas with
the latter view all the clauses are consistent. In other words, if the
construction for which the Board contends is accepted, some clauses would be
defeated, whereas if the construction for which the respondents contend is
upheld, all the clauses in the document become effective. In our opinion, it is
an elementary rule of construction that if two constructions are reasonably
possible, the one which gives effect to all the clauses of the document must be
preferred to that which defeats some of its clauses. It is not in dispute that
if the document is held to be a wakf, the directions in the document that
charitable purposes 489 should be selected without distinction of religion,
caste or creed, would obviously be defeated and that undoubtedly supports the
conclusion that the document evidences a public charitable trust and not a
wakf.
Besides, the clause on which the argument of
dedication is based cannot be divorced from the provision contained in the said
clause which provides for charitable purposes without distinction of religion,
caste or creed and so, the intention of the settlor was to help not only
charities which would fall within the definition of a wakf but also charities
which would be outside the definition; and so, the whole argument of dedication
breaks down because the idea of dedication is not confined to purposes which
are recognised at charitable by the definition of the Act but extends for
beyond its narrow limits. In this connection, it may be relevant to recall that
it would be competent to the Trustees to devote a substantial part of the
income, and may be even the whole of the income, to a purpose which may be
outside the limits of wakf by virtue of their powers under cl. 3(c) of the
document, and that plainly suggests that the vision of the settlor was not
confined in the narrow limits prescribed by the conditions as to a valid wakf
It is in this context that the other provisions about vesting must be
considered. The document calls the author of the trust as the 'Settlor' and the
appellants as the Trustees' and that introduces the concept of the Trust as
contemplated by English Law. Clause 1 of the document specifically assigns and
transfers unto the appellants all these shares and securities described in the
Schedule which are the subject-matter of the trust. This clause, in terms,
transfers the shares and securities to the Trustees and so, the legal title in
respect of the subject-matter of the trust vests in the Trustees. The argument
that the provision for vesting had to be made because the property in question
is movable 490 property, does not carry conviction because the whole scheme of
the document appears to be to vest the title in the Trustees and gives them
absolute discretion to use said property and its income for any of the
charitable purposes specified in the document. Thus, the vesting provision has
not been adopted as a means to carry out the intention to dedicate the property
to the Almighty but it constitutes the essential basis of the transaction and
that is to transfer the legal title of the trust property to the Trustees. In
that sense, cl. 14 which confers on the Trustees absolute discretion to deal
with the property in any manner they like, as well as cls. 18 and 24 which
clothe them with authority to employ servants is their uncontrolled discretion
and to appoint a Committee for management of the Trust, become more easily
intelligible. In this connection, we may also notice the fact that the
appointment of nonMuslims as Trustees which is prohibited by the Act, is an
indication that the settlor did not regard the trust as falling within the said
statutory prohibition; likewise, the scheme of management of the trust which
the Trustees are given liberty to adopt in administering the trust, is
completely free from the regulations based on Muslim law which the relevant
sections of the Act have prescribed.
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