Anis Fatma Begum v. Board Of Wakf, West Bengal .

Altamas Kabir, J.:— This appeal arises out of an order passed by the learned single Judge on 30th August, 2000, in Originating Summons jurisdiction in Suit No. 488 of 1999, which had been filed for answers to be given to the following questions, namely,

(a) Whether the demarcation of the wakf property being premises No. 33, Shakespeare Sarani, Calcutta-700071, made as above in dividing the said property in two distinctive parts, one for wakf-alal-aulad and the remaining portion for pious and religious purposes, is correct and has been made in consonance with the provisions of the wakf Deed?

(b) Whether the Wakf Act, 1995, is applicable for the portion of the said property divided and earmarked for wakf-alal-aulad?

2. By his said order the learned single Judge answered the first question in the negative and the second question in the affirmative.

3. Appearing in support of the appeal, Mr. Sahidullah Munshi submitted that the learned single Judge had misunderstood the scope and purport of the submissions made on behalf of the appellant, since it was not the contention of the appellant that the portion of the wakf properties which had been kept apart for secular purposes either loses its wakf character or ceases to be part of the wakf estate created under the Deed of Wakf dated 22nd September, 1936, executed by Shahzadi Begum.

4. Mr. Munshi submitted that the contention of the appellant/petitioner was that the portions of the wakf properties which were kept apart for secular purposes or were separated from the rest of the wakf properties and categorised as wakf-alal-aulad, were kept out of the provisions of the Wakf Act, 1995, and the control of the Board of Wakf, West Bengal. Mr. Munshi urged that the specific case of the appellant/petitioner before the learned single Judge was that by virtue of the definition of the expression ‘wakf’ in Section 3(r)(iii) of the Wakf Act, 1995, properties designated as wakf-alal-aulad stood excluded from the purview of the said Act and the administrative control of the Board of Wakf, West Bengal. The said properties continued to retain their wakf character and continued to be governed by the provisions of other enactments such as the Mussalman Wakf Validating Act, 1913; the Mussalman Wakf Validating Act, 1930; the Religious Endowments Act, 1863 and the Mussalman Wakf Act, 1923.

5. Referring to the definition of the expression ‘wakf’ in the Bengal Wakf Act, 1934, which was in force in West Bengal till the coming into operation of the Wakf Act, 1995, Mr. Munshi submitted that although a distinction had been made in respect of wakfs and wakf-alal-aulad in Sections 6(10) and 6(11) of the said Act, both categories of wakf were made subject to the provisions of the Act and the administrative control of the Commissioner of Wakfs and the Board of Wakfs, West Bengal.

6. Mr. Munshi submitted that while the definition of ‘wakf’ and ‘wakf-alal-aulad’ in the 1934 Act was an inclusive definition, the definition of ‘wakf’ in the 1995 Act was an exclusive definition, and by bringing about such charge it was clearly the intention of the Legislature to include within the scope of the 1995 Act wakf-alal-aulad only to the extent to which the properties were dedicated for any purpose recognised by Muslim Law as pious, religious or charitable. In other words, the portion of the wakf properties kept apart for secular purposes were excluded from the operation of the 1995 Act and consequently they were no longer subject to the control of the Board of Wakfs, West Bengal.

7. Mr. Munshi urged that the doctrine of wakf is interwoven with the entire religious life and social economy of Muslims. The Muslim Law imposes an obligation, legal or moral to provide for the upkeep and maintainable of parents, descendants and kinfolk in general and provision for one's own self is considered to be equally meritorious so that one never became a burden to society. Conflicts, however, arose amongst jurists about the validity of a wakf dedicated for the benefit of the wakif, his family members and descendants. In 1894, the said controversy came up for consideration before the Privy Council in the case of Abul Fata Mahomed Ishak v. Russomoy, reported in (1894) 22 Ind App 76 (PC) and it was held that if the primary object of the wakf was the aggrandisement of the family and the gift to charity was illusory, whether from the smallness of the amount or from its uncertainty or remoteness, such wakf was invalid and no effect could be given to it. The decision of the Privy Council raised considerable alarm within the Muslim community in India resulting in the enactment of the Mussalman Wakf Validating Act, 1913, which validated all private wakfs which had become invalid on account of the decision in Abul Fata Mahomed's case (supra).

8. Mr. Munshi submitted that there was no controversy regarding the applicability of the provisions of the 1995 Act to a public wakf. The controversy involves the question as to whether the said Act is applicable to a wakf-alal-aulad, and if applicable, to what extent. It was pointed out that the definition of the expression “wakf” in Section 3(r) of the Wakf Act, 1995, was the same as in Section 3(1) of the Wakf Act, 1954, which was not, however, applicable to West Bengal on account of the existence of the Bengal Wakf Act, 1934. Mr. Munshi urged that the intention of the Legislature to include wakf-alal-aulad only to the extent that the properties were dedicated for religious and charitable purposes is quite clear both from the 1954 Act as also the 1995 Act.

9. It was submitted that the expression ‘to the extent’ used in Section 3(r)(iii) of the Wakf Act, 1954, fell for consideration of the Madras High Court in the case of (1) M.A Bhaimia v. The Madras State Wakf Board, reported in (1968) 1 Mad LJ 410 and (2) V. Mohamed Mohin… v. Madras State Wakf Board…., reported in AIR 1968 Mad 243, and it was held that the said expression meant that the Act would be applicable only in respect of the properties which have been specifically dedicated by the wakif for pious, religious or charitable purposes.

10. Mr. Munshi submitted that before the learned single Judge it was contended on behalf of the Board of Wakfs, West Bengal, that all wakfs-alal-aulad have been brought within the definition of ‘wakf’ in the Wakf Act, 1995, with the object of providing for proper administration and superintendence of all wakfs, including wakfs-alal-aulad. According to the Board, the dedication in all types of wakf is basically for pious, religious and charitable purposes and that the making of a wakf for maintenance, support, wholly or partially of the family, children and descendants is in itself a pious, religious and charitable purpose under the Muslim Law. Mr. Munshi submitted that on behalf of the Board it was contended further that making provision for oneself and one's family members is regarded in Muslim Law as ‘sadaqah’, a religious act. In other words, no distinction can be made between private wakfs and public wakfs and both came within the purview of the 1995 Act and the administrative control of the Board of Wakfs, West Bengal.

11. Mr. Munshi contended that while under the Mohammedan Law the contentions adduced on behalf of the Board of Wakfs, West Bengal, had force, 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 properties so dedicated were being enjoyed by the family of the wakif from generation to generation, were regarded as opposed to the rule against perpetuities as contained in the Indian Succession Act and the Transfer of Property Act. Mr. Munshi urged that in fact in respect of ceiling of holdings under land-laws, under the West Bengal Estates Acquisition Act, 1953; the West Bengal Land Reforms Act, 1955, and the Urban Land (Ceiling and Regulation) Act, 1976, a definite distinction had been made between wakfs created for purely religious and charitable purposes and wakfs which were private in nature for the benefit of the wakif and his family members and descendants. Mr. Munshi submitted that private wakfs were treated to be family settlements and the properties dedicated for such wakfs were treated to be the secular properties of the wakif, his family members and descendants.

12. Mr. Munshi submitted that the intention of the Legislature was clear in that private wakfs were to be treated as the private properties of the wakif and his family members notwithstanding the dedication thereof in favour of the Almighty.

13. Apart from the decision in the case of Mohammed Mohin, AIR 1968 Madras 243 and M.A Bhaimia, 1968 (1) Mad LJ 410 (supra), Mr. Munshi placed great reliance on a Bench decision of the Patna High Court in the case of Begum Asma Jafar Imam v. The State of Bihar, reported in AIR 1975 Patna 48, which took note of the two aforesaid decision in considering the question as to when a wakf-alal-aulad is to be deemed to be a wakf in view of the definition of wakf in Section 3(1)(iii) of the wakf Act, 1954. Speaking for the Bench, the Hon'ble Mr. Justice Nagendra Prasad Singh observed that in a wakf-alal-aulad if there is specific dedication of any property for any purpose recognised by the Muslim Law as religious or charitable, to that extent it will be deemed to be a ‘wakf’ within the meaning of the 1954 Act and the provisions of the said Act will apply to that extent.

14. Mr. Munshi submitted that it is a well-settled canon of interpretation that a statute does not use words without a meaning and it is better to adopt the construction which will give some effect to the words, rather than that which will create a conflict. Mr. Munshi submitted that if it was the intention of the Legislature that the provisions of the Wakf Act, 1954, or the Wakf Act, 1995, were to be applicable to all wakfs including wakfs-alal-aulad, then the words “to the extent to which the property is dedicated for any purpose recognised by the Muslim Law as pious, religious or charitable” will become surplusage and redundant.

15. Mr. Munshi reiterated his earlier submission that although previously wakfs-alal-aulad were specifically covered by the provisions of the Bengal Wakf Act, 1934, by virtue of the definition of “wakf’ and “wakf-alal-aulad” in Sections 6(10) and 6(11) and other provisions thereof, wakfs-alal-aulad were specifically excluded from the provisions of the 1954 and 1995 Acts, except to the extent provision was made therein for religious, pious and charitable purposes. Mr. Munshi submitted that while Section 52 of the Bengal Wakf Act, 1934, made specific provision for statements of account of wakfs-alal-aulad to be filed before the 15th of July each year, and for payment of annual contribution to the Board under Section 59 as in the case of public wakfs created for religious and charitable purposes and Section 34 provided for protection of wakfs-alal-aulad if mismanaged, neither the 1954 Act nor the 1995 Act contained any similar provisions and, on the other hand, sought to exclude private wakfs from their purview.

16. Mr. Munshi submitted that the learned single Judge had misapplied the concept of non-alienability of wakf property in general in the context of the definition of “wakf” in Section 3(r) of the Wakf Act, 1995. Mr. Munshi urged that the said definition in fact called for a demarcation to be made in cases where in a private wakf or wakf-al-al-aulad, some portion of the usufruct is set apart for religious and charitable purposes.

17. Mr. Munshi submitted that the apprehensions of the learned single Judge that if the wakf properties were allowed to be divided, the portion kept apart for secular purposes would lose its wakf character, was completely unfounded as such portion would always remain a wakf recognised by Mohammedan Law and would be governed by the Shariat Law as applicable in India by the Shariat Law Application Act, 1937, Section 2 whereof makes it clear that all private wakfs are governed by the Muslim Personal Law.

18. Answering the question of maintainability of the appeal in the Originating Summons jurisdiction, Mr. Munshi submitted that Chapter XIII, Rule 1(g) of the Original Side Rules provides that Originating Summons can be taken out for determination of any question arising in the administration of a Trust. Mr. Munshi submitted that Rule 9 provides for the determination of any question of construction in relation to a document by way of Originating Summons and that, in fact, what was being prayed for in the instant proceedings. Mr. Munshi submitted that as had been observed by the Hon'ble Supreme Court in the case of Bibi Siddique Fatima v. Mahmood Hasan, reported in AIR 1978 SC 1362, a Mutawalli of a wakf although not a trustee in the true sense of the term is still bound by the various obligations of a trustee. The Hon'ble Supreme Court in Mahant Sri Srinivas Ramnuj Das v. The Agricultural Income Tax Officer, Puri, reported in (1978) 4 SCC 315 : AIR 1978 SC 1736, also equated wakfs with Trusts for the purposes of the Orissa Agricultural Income-tax Act, 1947.

19. Mr. Munshi contended that having regard to the definition of “wakf” in the 1995 Act, which came into operation from 1st January, 1996, it became necessary for the appellant/petitioner, as Mutawalli of the wakf estate of Shahzadi Begum, to seek an interpretation of the provisions of the wakf deed executed by Shahzadi Begum containing provisions, both for private purposes as also for religious and charitable purposes, in the Originating Summons jurisdiction of this Court, regarding the applicability of the Wakf Act, 1995, to those portions of the wakf estate set apart as wakf-alal-aulad.

20. Mr. Munshi submitted that the legal anomaly created on account of the different definitions of the expression “wakf” and “wakf-alal-aulad” in the Bengal Wakf Act, 1934 and the Wakf Act, 1995, is required to be resolved for the guidance of Mutawallis of all private wakf estates where a certain portion of the usufructs are set apart for religious and charitable purposes.

21. Appearing for the Board of Wakfs, West Bengal, Mr. Priyabrata Mukherjee firstly questioned the maintainability of the proceedings in the Originating Summons jurisdiction. Mr. Mukherjee submitted that Originating Summons could be taken out in respect of trusts and not wakfs and in respect of matters involving the administration of such trusts and questions arising in respect thereof.

22. In this regard reference was made to a Bench decision of this Court in Pradip Kumar Saha & Ors.… v. Indian Hotel & Anr.…, reported in (2001) 1 Cal LT 29 (H.C), wherein a suit for adjudication of a landlord-tenant dispute was held to be outside the purview of Chapter XIII of the Original Side Rules.

23. Mr. Mukherjee then urged that the appellant/petitioner had no right in the property belonging to the wakf as she was not a trustee in the technical sense but a mere superintendent or manager. Consequently, she had no power to deal with the wakf properties and to divide them so as to set apart some portion for religious and charitable purposes and the remaining portion for secular purposes, Mr. Mukherjee submitted that once a wakf is created, either of a public or private nature, the wakif divests himself of all title to the wakf properties and such title vests in God and it is not open either to the wakif or the Mutawalli appointed under the wakfnama to alter the wakf character of the dedicated properties.

24. In support of his submission Mr. Mukherjee referred to and relied on the decision of the Supreme Court in the case of Ahmed G.H Ariff v. Commissioner of Wealth Tax, Calcutta, reported in AIR 1971 SC 1691, where similar views have been expressed.

25. Mr. Mukherjee also referred to and relied on a Bench decision of this Court in Mst. Zohra Khatoon v. Janab Mohammad Jane Alam, reported in AIR 1978 Calcutta 133, wherein it was reiterated that under the Mohammedan Law a Mutawalli has no ownership right or estate in the wakf property; he holds the property as a manager for fulfilling the purposes of the wakf. Mr. Mukherjee submitted that in the said decision it was also observed that Mohammedan Law makes a distinction between ‘Ayn’ (corpus) and Manafi (usufruct) and the beneficial interest under the endowment is generally created out of such usufruct.

26. Mr. Mukherjee submitted that while the usufruct from the wakf properties could be utilised for both secular and non-secular purposes, the wakf properties could not themselves be divided into secular and non-secular portions, and the Wakf Act, 1995, would have application in respect of the usufructs of a wakf-alal-aulad which were required to be utilised for religious and charitable purposes in accordance with the wishes of the wakif.

27. Referring to the decision of the Madras High Court in Bhaimia's case, 1968 (1) Mad LJ 410 (supra) and in Mohammed Mohin's case, AIR 1968 Madras 243 (supra) and the decision of the Patna High Court in Begum Asma Jafar Imam's case, AIR 1975 Patna 48 (supra) referred to and relied upon by Mr. Munshi on behalf of the appellant, Mr. Mukherjee submitted that the same also were concerned with the usufructs and did not indicate that properties which had been dedicated by way of wakf for the benefit of the wakif, his family and descendants, ceased to be wakf for the purposes of the Wakf Act, 1954.

28. Mr. Mukherjee submitted that the learned single Judge had rightly held that the demarcation of the wakf property was not in consonance with the provisions of the wakf deed and that the Wakf Act, 1995, is applicable to the portion of the said property divided and earmarked for wakf-alal-aulad and the appeal was liable to be dismissed on merits as well.

29. Having considered the submissions made on behalf of the respective parties and the language of Section 3(r) of the Wakf Act, 1995, we are inclined to agree with Mr. Munshi that the Wakf Act, 1995, will have application to wakfs-alal-aulad or wakfs created for private and secular purposes to the extent of the provisions made therein for religious and charitable purposes. But, as submitted by Mr. Munshi, the wakf character of the remaining portion of the wakf properties will not be affected or altered merely because they would no longer be governed by the provisions of the aforesaid Act. They would continue to retain their wakf character and would be governed by Mohammedan Law and enactments enacted in respect thereof, such as the Mussalman Wakf Validating Acts of 1913 and 1930; the Religious Endowments Act, 1863 and the Shariat Law Application Act, 1937.

30. In our judgment, the definition of “wakf” in Section 3(r) of the Wakf Act, 1995, supports such a view and also indicates that the Legislature with deliberate intent kept private wakfs out of the ambit of the said Act and the administrative control of the authorities appointed or constituted under the Act, except to the extent that provision was made therein for religious and charitable purposes.

31. The Bengal Wakf Act, 1934, included within its purview all wakf estates, whether of a public or private nature. Sub-sections (10) and (11) of Section 6 of the said Act defined both kinds of wakf in the following terms:

“6(10) “wakf” means the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Islamic law as pious, religious or charitable and includes a wakf by user; and

(11) “wakf-alal-aulad” means a wakf under which not less than seventy-five per cent of the net available income is for the time being payable to the wakif for himself or any member of his family or descendants”.

32. While Section 48 of the aforesaid Act provided for submission of accounts by wakf estates other than wakfs-alal-aulad. Section 52 provided for statements of wakfs-al-al-aulad to be filed by the 15th day of July every year furnishing details of the gross income from the wakf properties, the amount of Government revenue, expenses incurred on account of salaries and allowances, religious and charitable purposes, etc.

33. Under Section 40 of the aforesaid Act, the Board of Wakfs was empowered to appoint a person to act as Mutawalli of any wakf of which there was no Mutawalli or where the Mutawalli was not available or the Mutawalli was not a citizen of India.

34. The above provisions indicate that under the Bengal Wakf Act, 1934, the Commissioner and the Board of Wakfs, West Bengal, exercised full control both over public wakfs as well as private wakfs.

35. The above position stood radically altered after 1st January, 1996, with the promulgation of the Wakf Act, 1995, in West Bengal whereunder wakfs for private and secular purposes were excluded from the operation of the Act except to the extent of the provision made therein for religious and charitable purposes.

36. As an extension of the alteration of the circumstances contemplated under the 1934 Act and those contemplated under the 1995 Act. Section 96 of the 1995 Act, empowers the Central Government to regulate the secular activities of wakfs. If the definition of ‘wakf’ in the 1995 Act excludes private wakfs, Section 96 brings within the ambit of the 1995 Act wakfs which are created for secular activities which would include social, economic, educational and other welfare activities. In order to give a harmonious construction between the definition of wakf in Section 3(r) of the 1995 Act and the provisions of Section 96 thereof, one will have to construe certain social activities for which wakfs are created in relation to activities which are of a charitable nature extending to persons who are not members of the wakif's family. To that extent, wakfs for secular purposes have also been included within the scope and ambit of the 1995 Act.

37. But as indicated hereinbefore, it appears to have been the intention of the Legislature to exclude private wakfs from the ambit of the 1995 Act and the administrative control of the authorities appointed by statute under the Act except to the extent indicated hereinabove.

38. While Section 112 of the Wakf Act of 1995, provides for repeal of the Wakf Act, 1954 and the Bengal Wakf Act, 1934, in its application to West Bengal, it also saves anything done or any action taken under the repealed law. Consequently, under Section 43 of the 1995 Act, wakfs which have been registered under any law for the time being in force is to be deemed to have been registered under the said Act. Such registration would no doubt also include the registration of private wakfs orwakfs-alal-aulad which have, however, been kept out of the purview of the definition of ‘wakf’ in Section 3(r) of the 1995 Act. The apparent dichotomy may, however, be resolved by invoking the provisions of Section 96 of the 1995 Act. However, in view of the definition of ‘wakf’ in Section 3(r) of the 1995 Act, we are unable to accept Mr. Mukherjee's submission that on account of Section 43 of the 1995 Act, even private wakfs, which stand excluded by the aforesaid definition, would continue to be governed under the provisions of the 1995 Act simply because of the deemed registration under Section 43 of the said Act.

39. In spite of having arrived at such conclusion, we are still unable to accept the proposition that the Mutawalli would be entitled to unilaterally partition the wakf properties and decided which portion of the wakf properties are to be utilised for religious and charitable purposes and which portions are to be utilised for purely private purposes. While the usufruct from the properties may be divided for the aforesaid purposes in accordance with the directions of the wakif, the properties, in our view, have to be maintained as they are until proper directions are obtained from the Court in that regard. Such division which may ultimately be effected, would not destroy the wakf character of any portion of the dedicated properties, but some portions thereof would be under the administrative control of the authorities under the Wakf Act, 1995, whereas the other portions would be governed by the provisions of the Mussalman Wakf Validating Acts of 1913 and 1930; the Religious Endowments Act, 1863 and the Shariat Law Application Act, 1937 and other similar enactments.

40. Having regard to the view taken by us, we must also answer the first question in the negative with the clarification that such demarcation of the wakf property as intended could be done by judicial process. Consequently, we answer the second question in the negative, but subject to such demarcation as may be made under orders of Court.

41. The appeal is accordingly disposed of.

42. There will, however, be no order as to costs.

43. All parties to act on a signed copy of the operative portion of this judgment on the usual undertakings.

44. If an urgent xerox certified copy of this judgment is applied for, the same is to be supplied to the applicant within a week of such application being made.

Alok Kumar Basu, J.:— 45. I agree.

Order accordingly.