Fazlul Rabbi Pradhan Vs. State of West
Bengal  INSC 59 (8 March 1965)
08/03/1965 HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C.
CITATION: 1965 AIR 1722 1965 SCR (3) 307
R 1974 SC 663 (8) RF 1978 SC1736 (6)
West Bengal Estates Acquisition Act (Act 1 of
1954), s. 6(1)(i)--"Charitable purpose", meaning of.
The appellants were the respective mutawallis
of two wakfs, in which either the ultimate benefit to the charity was postponed
till after the exhaustion of the wakif's family and descendents, or the income
from the wakf estate was applied for the maintenance of the family side by side
with expenditure for charitable or religious purposes.
Notices were issued by the Collector under
the West Bengal Estates Acquisition Act, 1953, to the appellants, calling upon
them to hand over possession of the wakf estates, on the ground that under s. 4
of the Act, there was an extinction and cesser of the estate and the rights of
the appellants, and that their divested estates and rights vested in the State.
The appellants claimed that they were protected by s. 6(1)(i)of the Act,
because, they were holding the properties exclusively for purposes which were
charitable or religious or both. The claim was rejected by the Collector, by
the Commissioner on appeal, and by the High Court under Art. 226 of the
Constitution. In the appeal to the Supreme Court,
HELD: The purposes described in the deeds
were not covered by the expression "religious purpose", and they were
not exclusively for charitable purposes. Mingled with those purposes were some
which were secular and some, which were family endowments, of a very
substantial character. As the provisions about the family had not become
inoperative by the exhaustion of the beneficiaries, the deeds. as they stood,
could not be said to come within exemption claimed.
The provisions of the Act apply
notwithstanding anything to the contrary contained in any other law or in any
instrument and notwithstanding any usage or custom to the contrary. The Act
must, therefore, be construed on its actual words and the exemption cannot be
enlarged beyond what is granted there. No doubt, the definition of
"Charitable purpose" is not exhaustive like that of "religious
purpose" but the expression "public utility" in the definition
of "charitable purpose" gives a guidance to the meaning and purpose
of the exemption. It leaves scope for addition but it does not make for
enlargement in directions which cannot be described as "charitable".
A provision for the family of the wakif or for himself cannot be regarded as
"relief of poor", "medical relief" or "the advancement
of education" under the definition. It cannot also be regarded as an
expenditure on an object of general public utility. It is true that after the
passing of the Mussalman waqf validating Act, 1937, wakfs, in which the object
was the aggrandisement of the families of wakifs without any pretence of
charity in the ordinary sense, became valid and operative. But, the intention
was not to give a new meaning to the word "Charity" which in common
parlance is a word denoting a giving to someone in necessitous circumstances
and in law, a giving for public good. A private gift to one's own self or kith and
kin may be meritorious and pious, but is not a charity in the legal sense and
Courts in India have never regarded such gifts as for religious or charitable
purposes, even under the Mahomedan Law. [313 B, H; 314 A; 316 F-H; 317 D].
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 392 and 393 of 1954.
Appeals by special leave from the judgment
and order dated March 26, 1962, of the Calcutta High Court in Civil Revision
Nos. 3176 of 1958.
G.S. Chatterjee and S.C. Mazumdar, for the
appellant (in C.A. No. 392/64).
N.C. Chatterjee and S. (7. Mazumdar, for the
appellant (in C.A. No. 393/64).
C.K. Daphtary, Attorney-General, B. Sen, S.C.
Bose and P.K. Bose, for the respondents (in C.A.. 392/64).
B. Sen, S.C. Bose and P.K. Bose, for the
respondent (in C.A. No. 393/64).
The Judgment of the Court was delivered by
Hidaytullah, J. these two appeals the appellants seek to displace a common
judgment and order of the High Court of Calcutta dated March 26, 1962 by which
a Full Bench of the Court, specially constituted to hear and determine certain
petitions under Art. 226 of the Constitution involving a common point of law,
discharged the Rule issued earIier in them. These cases were concerned with
Muslim wakfs in which either the ultimate benefit to charity is postponed till
after the exhaustion of the wakif's family and descendants or the income from
the wakf estate is applied for the maintenance of the family side by side with
expenditure for charitable or religious purposes. The common question which
arose and still arises is whether these wakfs are affected by the passing of
the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954). ?hat
Act, in common with similar Acts of other States in india abolished from a date
notified by the State Government all intermediaries such as proprietors,
tenure-holders etc. between the raiyat and the State and vested the estates and
the rights of the intermediaries in the State free from all incumberances.
Section 3 of the Act provided that the Act
was to have effect notwithstanding anything to the contrary contained in any
other law or in any contract express or implied or in any instrument and
notwithstanding any usage or custom to the contrary. There were, however, some
exceptions and one such exception was that an intermediary was entitled to
retain, with effect from the date of vesting, land held in khas under a trust
or endowment or other legal obligation exclusively for a purpose which was
charitable or religious or both.
Notices under s. 10(2) of the Act were issued
by the Collectors in charge, Estate Acquisitions, to the respective Mutwallis
informing them that after the notification issued on November II, 1954 under s.
4 of the Act there was extinction and cesser of the estate 309 and rights of
these intermediaries and their divested estates and rights vested in the State.
The Mutawallis were called upon by said notice or order to give up possession
of these estates and interests within 60 days of the service of the order, to
the officer empowered by the Collector in this behalf. The orders also
specified in schedules appended thereto, the details of such properties,
interests and rights. Notices of this kind were issued to Fazlul Rabbi radhan,
Mutawalli of Abdul Karim Wakf Estate, who is appellant a Civil Appeal No. 392
of 1964 and to Kawsar Alam, Mutawalli of Penda Mohammad Wakf Estate, appellant
in Civil Appeal No.393 of 1964. Similar notices were issued to other mutawallis
in respect of other wakfs. The mutawallis appeared in answer to the notices and
objected to them. They claimed that they were protected by s. 6(1)(i) of the
Act (to which detailed reference will be made (resently) as they were holding
the properties exclusively for purposes which were charitable or religious or
both. This claim was not accepted by the Collector, Estate Acquisitions, and
appeals to the commissioner also failed. The orders of the Collector and the
Commissioner are dated February 24, 1956 and January 18, 1958 respectively.
The appellants after serving notices of
demand for justice filed petitions in the High Court under Art. 226 of the
Constitution. The petitions came up for hearing before D.N.. Sinha J. and were
refered, on his recommendation, to a Full Bench consisting of Bachaat, D.N.
Sinha and P.N.
Mookerjee JJ. These learned Judges by
separate but concurring judgments held that the wakfs in question were not
protected by s. 6(1)(i) as they were not exclusively for purposes which were
charitable or religious or both and discharged the Rule. The cases were,
however, certified under Art. 133(1)(a) and (c) of the Constitution and these
two appeals were filed.
It is not necessary to state how the Act is
constructed for the' only question is whether the wakfs can be said to be
exclusively for purposes which are religious or charitable or both and thus
exempted from the operation of the Act by virtue of s. 6(1)(i) which reads
"6. Rights of intermediary to retain certain lands.
(1) Notwithstanding anything contained in
section 4 and 5, an intermediary shall, except in the cases mentioned in the
proviso to sub- section (2) but subject to the other provisions of that
sub-section, be entitled to retain with effect from the date of vesting-- (i)
where the intermediary is a corporation or an institution established
exclusively for a religious or a charitable purpose or both, or 310 is a person
holding under a trust or an endowment or other legal obligation exclusivey for
a purpose which is charitable or religious or both land held in khas by such
corporation or institution, or person, for such purposes." Section 2(c)
defines "charitable purpose" and s. 2(n) "religious
purpose". These definitions are:
"2(c) "charitable purpose"
includes the relief of poor, medical relief or the advancement of education or
of any other object of general public utility;" "2(n) "religious
purpose" means a purpose connected with religious worship, teaching or
service or any performance of religious rites;" If this concession is not
available then the estate must vest in the State Government under ss. 4 and 5
of the Act.
The former section invests power in the State
Government to notify the date from which the estates and rights of every
intermediary are to vest in the State free of all incumberances and the latter
says that upon due publication of the notification the vesting takes place from
the date notified. This has been done.
The wakfs in these two appeals are dissimilar
in their terms but both provide for application or income for the support of
the wakifs and their families. In the Abdul Karim Wakf (Civil Appeal 392 of
1964) the value of the property is shown as Rs. 1,00,000 and a ceiling of Rs.
4,500 is placed by the wakif on expenditure per year (el. 12). The
mutawalliship and the Naib mutawalliship run in the family from generation to
generation first in the male line and after exhaustion of the male line in the
female line. The charities mentioned specifically or generally require a stated
expenditure of Rs. 904 per year. The wakif has. in addition, provided for an
expenditure of Rs. 2,000 at a time, for the solace of his own soul and for his
burial ceremonies etc. Rs. 25 have been ordered to be spent on Milad every
As regards secular expenses the deed directs
that 10 per cent of the income is to be kept as d reserve fund and from savings
from the income other properties are to be purchased (cl. 19). The mutawalli
and the Naib mutawalli are to receive 8 per cent of the income in proportion of
5:3. Then follow numerous dispositions for the benefit of the family.
"15. My wife Bibi Jainulnessa wilt get
as long as she is alive, Rs. 1,200 annually at the rate of Rs. 100 per month
and Bibi Taherankhatun, the widow of my eldest son, will get as long as she is
alive, Rs. 480 annually (Rupees four hundred eighty only) at the rate of Rs. 40
per month. Such monthly allowances 311 will be stopped after their death. After
their death their heirs will not get any portion of the aforesaid monthly
"16. Each of my three sons Shriman
Tojammal Hossain Prodhan, Shriman Ahmad Yasin Prodhan and Shriman Azizul Huq
Prodhan, will get Rs. 24 per cent out of the net income of the wakf estates
(after payment of revenue, cess etc.
which are current at present or will be
levied in future and after meeting the costs of administration). Shriman Abu
Alam Prodhan, the only son born of the loins of my deceased second son will
similarly get at the rate of Rs. 7 per cent out of the net income.
"18. A fund will be created with a
deposit at the rate of Rs. 3 (Rupees three only) per cent, out of the annual
net income for the purpose of education of the sons of my sons, sons of my
daughters, sons of the daughters of my sons and my great-grandsons (in the male
line). The Mutawalli and the Naib Mutawalli in consultation with each other
will render help as far as possible to the boy amongst them who will be
meritorious and has zeal for education according to his standard of education.
If there be any surplus the same will be kept in deposit in the wakf estate for
meeting the expenses of education of the future heirs. If after graduation he
goes to England, France, Germany, America, Japan, Australia and other
progressive countries for higher education, then the Mutawalli and the Naib
Mutawalli will, in consultation with each other, help him as far as possible.,
"20. The provision made for allowances for my aforesaid three sons and my
grandson Shriman Abu AIam Prodhan in Schedule (Kha) will vest, after their
death in the respective sons and grandsons in the male line equally.
If any of them has no son or grandson, in
that case after his death if his wife lives and continues to follow her own
religion, she will get one-eighth share of the aforesaid allowance as long as
she is alive. The remaining seveneighth share and in the absence of his wife,
sixteen annas share will vest in the wakf estate. Daughters born of them will
not get the said allowance (in the female line)." In the Penda Mohammad
Wakf Estate (Civil Appeal 393 of 1964) the value of the property is shown as
Rs. 40,000. The expenditure on charities and religious purposes is about Rs. 3,700
312 These are specified in Schedule Kha. The
pay of the Naib Mutawalli is fixed at Rs. 300 per year. The Mutawalliship and
the Naib Mutawalliship run in the family and Mutawalli holding office can
appoint his successor. The other important clauses of the wakf namah dealing
with the application of the funds are:
"(9) The Mutawalli shall from the income
of the wakf property pay at first revenue and other legitimate government and
"(10) The Mutawalli shall pay all
expenses required for the maintenance of the wakf property and the Mutawalli
shall get ten per cent of such expenses. The Mutawalli shall pay Rs. 25 (Rupees
twenty five only) per month to the Naib Mutawalli as his remuneration.
"(12) The Mutawalli will be entitled to
take as his own remuneration the balance remaining after deducting expenses
under items Nos. (9) and (10) as well expenses under Schedule (ka) and (kha)
below from the income of the Wakf property and he will be entitled to spend the
sum for his own work.
In Schedule Ka dispositions are made for the
family and the various clauses run as follows:
"(1) My grandson Jaman Ajimuddin Ahmed
shall get a sum of Rs. 200 (Rupees two hundred) per month as his tankha
(allowance) that is the cost of his maintenance and on his demise his heirs
shall get the said tankha generation after generation and by way of succession
(2) My daughter Sreemati Hiramannessa Bibi
shall get Rs. 25 (Rupees twenty five) per month for her maintenance and on her demise
her heirs shall continue to get the said tankha generation after generation for
ever by way of succession.
(3) My second wife Srimati Bibijannessa Bibi
shall get Rs. 30 (Rupees thirty) per month during her life time as tankha that
is as costs of her maintenance and on her demise none of her heirs shall get
the same and it will be included in the Wakf Estate".
It was not claimed before us in these cases
that the provisions about the family have become inoperative by the exhaustion
of the beneficiaries and we proceed on the assumption that the families the
wakifs do still enjoy the benefits. In these circumstances, the question is
whether these trusts can be described as those exclusively for religious or
charitable purposes or both. If they can be 313 so described s. 6(1)(i) would
exempt them from the operation of the Act; otherwise, in view of the provisions
of ss. 3, 4 and 5 the estates of the intermediaries vested in the State on the
As already stated the provisions of the Act
apply notwithstanding anything to the contrary contained in any other law or in
any instrument and notwithstanding any usage or custom to the contrary. The Act
must, therefore, be construed on its actual words and the exemption cannot be
enlarged beyond what is granted there. The exemption is given to Corporations
and institutions established exclusively for a religious or a charitable
purpose or both but to this kind of eleemosynary foundations no mutawalli in
either deed can lay claim. The matter can thus only come in, if at all, within
the words of the exempting clause which read:
" ...... a person holding under a trust
or endowment or other legal obligation exclusively for a purpose which is
charitable or religious or both?' The word "exclusively" limits the
exemption to trusts, endowments or other legal obligations which come solely
within charitable or religious purposes. These purposes are defined by s. 2(c)
and (n) and the definitions have already been reproduced. It is quite dear (and
indeed the contrary was not suggested at the Bar) that the expression
"religious purpose" cannot cover these two cases. The definition is
an exhaustive one and to satisfy the requirement the purpose must be connected
with religious worship, teaching or service or performance of religious rites.
No religious worship, teaching or service or performance of religious rites is
involved when the wakif provides for his family or himself even though a person
giving maintenance to his family or himself is regarded in Mahomedan Law as
giving a sadaqah. But even if regarded as a pious act a sadaqah of this kind is
not a religious worship or rite. In our opinion, neither of the deed makes a
disposition coming within the description "exclusively for religious
This leaves over for consideration whether
they come within the expression "charitable purposes".
The definition of "charitable
purposes" in the Act follows, though not quite, the well-known definition
of charity given by Lord Macnaghten in Commissioners for Special Purposes of
Income Tax v. PemseI(1), where four principal divisions were said to be
comprised-trusts for the relief of poverty; trusts for the advancement of
trusts for the advancement of religion; and
trusts for other purposes beneficial to the community not falling under any of
the preceding heads. The definition in this Act makes one significant change
when it speaks of "public utility" and this gives a guidance to the
whole meaning and purpose of the exemption. No doubt the definition is not an exhaustive
one like the definition of 'religious purposes'. It only speaks of what may be
included in it besides the natural meaning of the words. It  A.C. 531.at
314 is quite clear that the provision for the
family of the wakif or for himself cannot be regarded as 'relief of poor',
'medical relief' or the `advancement of education'.
It cannot also be regarded as an ex-penditure
on an object of general public utility. The definition as it stands cannot
obviously comprehend such dispositions.
But it is contended by Mr. N.C. Chatterjee
that in giving a meaning to the expression "charitable purposes" we
must be guided by the notions of Mahomedan Law and he relies upon the
observation of Sir George Rankin in Tribune Press Trustees, Lahore v.I.T. Commissioner(1).
Mr. Chatterjee claims that provision for the wakif and the wakif's family is a
charitable purpose according to Mahomedan Law. In the Tribune case the Judicial
Committee was required to interpret s. 4(3)(i) of the Indian Income-tax Act
1922 (XI off 1922). That section provided:
"(3) This Act shall not apply to the
following classes of income:-- (i) Any income derived from property held under
trust or other legal obligation wholly for religious or charitable purposes,
and in case of property so held in part only for such purpose, the income
applied, or finally set apart for application, thereto.
In this sub-section 'charitable purpose'
includes relief of the poor, education, medical relief, and the advancement of
any other object of general public utility." In dealing with the will of
Sardar Dayal Singh who had constituted a trust to maintain the Press and the
Newspaper, "keeping up the liberal policy of the said newspaper and
devoting the surplus income ...... in improving the said newspaper ......
", the question had arisen whether the running of a newspaper was an
object of general public utility or whether it was to be treated as a business
concern. The High Court at Lahore was divided in its opinion. Learned Judges in
favour of granting the prayer for exemption were of the opinion that the true
test was not what the Court considered to be an object of public utility, but
what the testator thought to be. The Judicial Committee pointed out that in
reaching this view those learned Judges were following what Chitty J. said in
re Foveaux, etc.(2) and further that that case was dissented from in later
cases. In these latter cases it was held that though the private opinion of the
Judge was immaterial, nevertheless for a charitable gift to be valid, it must
be shown (1) that the gift was for public benefit, and (2) that the trust was
one of which the Court could, if (1)L.R. 66 I.A. 241 at P. 252.  2 ch.
501, 315 necessary undertake and control otherwise trusts to promote all kinds
of "fantastic" objects in perpetuity would be established. The
Judicial Committee acceded to this view but pointed out further:-.-- "It
is to be observed, moreover, that under the Incometax Act the test of general
public utility is applicable not only to trusts in the English sense, but is to
be applied to property held under trust "or other legal
obligation"--a phrase which would include Moslem wakfs and Hindu
endowments. The true approach to such-questions, in cases which arise in
countries to which English ideas--let alone English technicalities--may be
inapplicable, was considered by the Board in Yeap Cheah Neo v. Ong Cheng
Neo(1), and it was well said by Sir Raymond West in Fatima Bibi v. Advocate
General of Bombay(2); "But useful and beneficial in what sense? The Courts
have to pronounce whether any particular object of a bounty falls within the
definition; but they must, in general, apply the standard of customary law and
common opinion amongst the community to which the parties interested
belong." Relying on this passage Mr. Chatterjee contends that if the
Mahomedan Law regards gifts for the benefit of the wakif and his family as
"charity" it is not for the Courts to say that they are not and he
claims exemption for the wakfs. He relies upon the precept of the Prophet--"A
pious offering to one's family, to provide against their getting into want, is
more pious than giving alms to beggars. The most excellent of sadkah is that
which a man bestows upon his family'.
Now it is a matter of legal history that
wakfs in which the benefits to charity or religion were either illusory or
postponed indefinitely, while the property so dedicated was being enjoyed from
generation to generation by the family of the wakif, were regarded as opposed
to the rule against perpetuities as contained in the Indian Succession and the
Transfer of Property Acts. This was so declared in a succession of cases by the
Judicial Committee and the opinion of Amir Ali expressed in his Tagore Lectures
as well' as in Meer Mahomed Israeli Khan v. Shasti Churn Ghore(3) and Bikani
Mia v. Shukul Poddar(4) was not accepted. These cases are referred to in the
three opinions in the High Court and most important of them is Abul Fata
Mahomed Ishak and Others v. Bussomoy Dhur Chowdry, and others(5). In that case
Lord Hobhouse, while emphasising that (1)  L.R. 6 P.C. 381.
(2)  I.L.R. 6 Bom. 42, 50 (3) 19 Cal.
(4) 20 Cal. 116.
(5) 22 I.A. 76.
316 Mahomedan Law ought to govern a purely
Mahomedan disposition, declined to hold that disposition in which the benefit
was really intended to go to the wakif and his family could be described as
charity even under that law.
Speaking of the precept above quoted by us
Lord Hobhouse observed:
" ...... it would be doing wrong to the
great lawgiver to suppose that he is thereby commending gifts for which the
donor exercises no self-denial; in which he takes back with one hand what he
appears to put away with the other; which are to form the centre of attraction
for accumulations of income and further accessions of family property; which
carefully protected so-called managers from being called to account; which seek
to give to the donors and their family the enjoyment of property free from all
liability to creditors;
and which do not seek the benefit of others beyond
the use of empty words." Similar observations were made by Lord Hobhouse
in L.R. 17 I.A. 25 and by Lord Natson in L.R. 19 I.A. 170 in earlier cases.
These cases led to agitation in India and the
Mussalman Wakf Validating Act, 1913 (VI of 1913) was passed. It declared the
rights of Mussalmans to make settlements of property by way of wakf in favour
of their families, children and descendants. For the purposes of the Validating
Act the term 'wakf' was defined to mean "the permanent dedication by a
person professing the Mussalman faith of any property for any purpose
recognized by the Mussalman law as religious, pious or charitable". This
gave a wider meaning to the word wakf but only for the purpose of taking them
out of the validity which would have otherwise existed and which was already
authoritatively stated to have so existed.
After the passage of these two Acts wakfs in
which the object was the aggrandisement of families of wakifs without a
pretence of charity in the ordinary sense became valid and operative. But the
intention of the Validating Act was not to give a new meaning to the word
"charity" which in common parlance is a word denoting a giving to
some one in necessitous circumstances and in law a giving for public good. A
private gift to one's own self or kith and kin may be meritorious and pious but
is not a charity in the legal sense and the Courts in India have never regarded
such gifts as for religious, or charitable purposes even under the Mahomedan
Law. It was ruled in Syed Mohiuddin Ahmed and Ant.
v. Sofia Khatun(1) that neither the Wakf
Validating Act 1913 nor the Shariat Act 1937 had the effect of aborgating the
Privy Council decisions on the meaning of "charitable purpose" as
We do not say that the English authorities
should be taken as the guide as was suggested in soms of these cases at one
time. For (1) 44 C.W.N.974.
317 one thing, the law was developed in the
Chancery Courts without the assistance of any statutory definition. The
earliest statute on the subject is one of 1601 in the forty- third year of the
reign of Queen Elizabeth I and in its preamble it gave a list of charitable
objects which came within the purview of that Act, and for another, Courts in
England extended these instances to others by analogy and the subject is often
rendered vague and difficult to comprehend. A clear guide is available to us in
India in the interpretation of the almost similar provisions of the Indian
Income-tax Act 1922 already quoted. The observations of Sir George Rankin in
the Tribune, case, on which much reliance is placed by the appellants were
intended to convey the same caution about English cases which we have sounded
here. The Judicial Committee did not intend to lay down that the words of a
statute so precise in its definition should be rendered nugatory by leaving
room for inclusion in "charitable purposes", objects which by no
means could be charity in the generally accepted legal sense. No doubt the
definition which is common is not exhaustive and leaves scope for addition but
it does not make for enlargement in directions which cannot be described as
This view of the definition was taken in
respect of the analogous provision of the Indian Income-tax Act. In D.V. Arur
v. Commissioner 'of Income-tax(1) and in re Mercantile Bank of India (Agency)
Ltd.(2)it was laid down that for satisfying the test of charitable purpose
there must always be some element of public benefit. Indeed it must be so, if
family endowments which are in effect private trusts are not to pass as
charities which, as was observed in Mujibunnissa and Ors. v. Abdul Rahim and
Abdul Aziz(3), it is superfluous in the present day to say, is not the law.
When the two deeds are examined and their
provisions considered in the light of these principles, it is easily seen that
they are not exclusively for charitable purposes.
They do provide in part for objects which are
religious or charitable or both but mingled with those purposes are some which
are secular and some which are family endowments very substantial in character.
If the latter benefits had ceased or the families had become extinct leaving
only the charities or if the provisions were for poor and needy though
belonging to the wakif's family, other considerations might conceivably have
arisen, as was stated by Bachawat J.
in his opinion. The deeds as they stand
cannot, however, be said to come within the exemption claimed.
The appeals must, therefore, fail. They are
dismissed but in the circumstances we direct parties to bear their own costs.
(1) I,A.R. (1916) Bom. 44.
(2)  10 I.T.R. 512.
(3) 21 I.A. 15 at p, 26.