T. Venakatadri, J.
1. These petitions are filed by the Mutawallis of the various Wakf properties questioning the legality of the State Wakf Board claiming a certain percentage of contribution from the entire income of the Wakf properties, when only a portion of the income from such properties are set apart for religious, charitable or pious purposes. The petitioners are claiming relief by way of prohibition or certiorari, to forbear the Board from making its demand or to quash the notice issued by the State Wakf Board respectively.
2. In W.P. No. 2 89 of 1964, ten per cent of the income has been set apart for religious charitable and pious purposes. In W.P. No. 1278 of 1964, a certain portion of the income from and out of the Wakf properties has been set apart for charitable purposes. So also in W.P Nos. 1279 and 1278 of 1964. In W.P. No. 1440 of 1964, a Wakf has been created for the maintenance and support of the founder's family, children and descendants and a sum of Rs. 480 annually to certain charities, viz., three mosques and to an Arabic College at Vaniyambadi. In W.P. No. 1514 of 1964, by a trust deed the founder has set apart 10/16 share for the performance of charities and 6/16 share for his santhathis. In W.P. No. 1411 of 1965, the founder has set apart Rs. 2,200 for certain charities mentioned in the trust deed. In W.P. No. 4566 of 1965, a one -third share of the net income has been set apart for charities. In W.P. No. 196 of 1964 and W.P. No. 668 of 1964 and W.P. No. 692 of 1964 Wakfs are created for the maintenance support and benefit of the founders and their families and descendants, and in the event of the extinction of the descendants the wakf properties should be utilised for charitable purposes mentioned in the deed.
3. 'Wakf' in Muslim Law means a permanent dedication by a Muslim of any property for any purpose recognised by Muslim Law as religious, pious and charitable. A wakf is created by mere declaration of endowment by the owner of the property, and upon such declaration the property immediately vests in God Almighty. There are two classes of Wakfs, public and private. In the case of a Public Wakf, the property, namely the corpus as well as the usufruct, vests in God, since the usufruct becomes immediately applicable to the enumerated holy purposes. In the case of Private Wakf or Wakf-alal-aulad, only the corpus of the property vests in God immediately, and the enjoyment of the usufruct is postponed till after the extinction of the Wakif, his family and descendants. A Public Wakf is one for religious, pious and charitable purposes; and a Private Wakf is one for the benefit of the settlor's family and descendants. Such a private wakf was made legal and valid under Muslim Law by the Musselman Wakf Validating Act of 1913.
4. The contention of the petitioners is that the State Wakf Board has no jurisdiction either to claim, demand or collect contribution form the income of the properties in respect of a Private Wakf of Wakf-alal-aulad. The Board has got only a limited jurisdiction to claim contribution, i.e., it can collect contribution only in respect of the income set apart for religious, pious and charitable purposes. The petitioners contend that the section itself makes this clear, for, Section 3(1)(iii) includes 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. Thus the contention of the petitioners is that in the case of composite Wakfs, i.e., wherever Wakfs are created not only for the benefit of the settlor, his family and descendants but also for religious, charitable and pious purposes, the Board can claim contribution only from the shae of the properties which are exclusively set apart for religious, charitable and pious purposes and that in the case of Wakf simpliciter the Board has no jurisdiction to claim or demand contribution from its income.
5. But the State Wakf Board contends that it has got jurisdiction wherever a wakf is created, no matter whether it is public or private Wakf (Wakf-alal-aulad). Under Muslim Law, there is no such distinction between Public and Private Wakfs The Muslim Law treats both Public and Private Wakfs alike, the moment a wakf is created and registered, and therefore the Board has got jurisdiction to demand contribution. According to the Board, the properties comprised in the wakf deed are permanently dedicated and the creator of the Wakf has relinquished all his rights of ownership and the designated persons are only the Mutawallis who have no manner of right to sell or mortgage or in any Way transfer or charge the wakf properties. The Wakf has tied down the properties and the properties are vested in God, and on account of the express dedication, the entire properties have become wakf properties, though in the case of private Wakf, i.e., Wakf-alal-aulad, the charitable, religious and pious purposes are only postponed until after the happening of the contingency namely the extinction of the founder's family; but the character of the property is not changed. According to the Wakf Board, the entire properties are dedicated permanently and even assuming that the income is dedicated for the benefit of the founder's children and descendants, that is also a pious and charitable purpose. Wakf-alal-aulad contemplates that, after the extinction of the males and females in the founder's family, the income from the properties should goto pious and charitable purposes. Therefore the Board is interested in seeing that the properties of Wakf-alal-aulad are kept in tact till the extinction of the founder's family, so that the charities mentioned in the Wakf could be performed on the extinction of family and descendants of the founder. It is, therefore, contended that the Board has got jurisdiction over the same, and that the Wakf Board has been formed only to safeguard the interest of the Wakfs and their properties, and that in accordance with Section 46 of the Wakf Act, 1954, every MutaWalli should pay annually to the Board such contribution not exceeding six per cent, of the net annual income of such of its property as is situate in the Madras State.
6. There is, thus, an acute controversy between the petitioners and the Wakf Board in regard to the payment of contribution from the income of the wakf properties. In short, the controversy between the Mutawallis and the Wakf Board is that, while the Mutawallis are contending that they will pay only contribution proportionate to the income from the properties which have been set apart for pious, religious or charitable purposes and that where properties are dedicated completely for the benefit of the settlor and his-family and descendants they will not pay any contribution, the contention of the State Wakf Board is that contribution should be paid to the Board on the total income of the properties and should be paid even where the properties are initially dedicated to the settlors family and descendants.
7. The question that arises for consideration in these petitions is whether the State Wakf Board is entitled to call upon the Mutawallis to pay contribution from and out of the total income of the properties comprised in the Wakf deed irrespective of the fact that only a fraction of the estate or a share of the income is set apart for religious, pious or charitable purposes.
8. Historically, the origin of Wakf is attributed to the direct prescriptions of the Prophet. The Validity of Wakf is founded on the rule laid down by the Prophet himself who declared, 'Tie up the property and devote the usufruct to human beings and it is not to be sold or made the subject of gift or inheritance, devote its produce to your children, your kindred and the poor in the Way of God'. This doctrine has been given due recognition and proper place from the time of the Muslim system of jurisprudence, and the law relating to endowments by far the major branch of Muslim law has come into vogue. The pronouncements of the Prophet, which are the origin of wakf gave rise to a good superstructure which the jurists moulded in the different Muslim countries, according to their needs and circumstances, social conditions and conceptions of public policy. The doctrine of Wakf is, therefore, interwoven with the entire religious life and social economy of the Muslims. The Muslim Law imposes an obligation, legal or moral, to provide for the upkeep and maintenance of parents, descendants and kinsfolk in general; and provision for one's own self has been considered equally obligatory, so that one may never become a burden to his society or people. The subsequent conflict and controversy between the Muslim jurists gave rise to the bulk of modern Anglo-Muslim case-law on the subject. It is pertinent to quote the observations of Sir Roland Wilson as extracted in Saksena's Muslim Law, Fourth Edition, at page 464:
Trouble arose when case after case raised the question Whether the term wakf Was also meant to cover disposition in the nature of en tail or private settlement. On the one side, it was urged that to admit the validity of such private perpetuities would be contrary to the spirit of the Muslim Law of gifts, and inconsistent with the jealous Watchfulness displayed in other Ways against any attempt to evade the rules of inheritance. The religious and charitable perpetuities, which were undisputed, Were not explained. On the other side, it was pointed out that the practice in question is expressly recognised in all the standard text-books except one, which is not adverse, but simply silent, and that in the View of the Prophet to provide for the comfort and dignity of one's own family is quite as much an act of piety, quite as genuine a form of alms-giving, as to provide for the poor in general.
Thus there was a good deal of controversy whether a Wakf in favour of the settlor and his family is valid in Muslim Law, and in 1894 the Privy Council expressed in Abdul Fata Mahomed v. Rasdmaya (1895) I.L.R. 22 Cal. 619 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, the wakf for the benefit of the family was invalid and no effect could be given to it. This decision of the Privy Council raised considerable alarm and caused considerable dissatisfaction in the Muslim Community in India. A representation was thereupon made to the Government of India which caused the passing of the enactment known as the Mussalman Wakf Validating Act, 1913. By the 1930 Act, it was made to apply retrospectively.
9. As already stated by me, Wakfs can now be divided into two Classes (1) Public and (2) Private. Private Wakfs may again be sub-divided into Wakfs exclusively for the benefit of the settlor's family and descendants in perpetuities and wakfs for the benefit of the settlor's family and descendants and also for charitable and religious purposes. The private wakfs are called Wakf-alal-aulad. For the protection, enforcement and administration of the Wakfs, there have been enactments passed from time to time both by the Central and State Governments, and finally the. Wakf Act, 1954 was passed for the better administration and supervision of Wakfs and to prevent mismanagement of wakf properties set apart for religious, pious and charitable purposes. One of the distinctive features of the Act is that it contains a promise of funds to finance schemes of educational, social and economic advancement. The Central Act gives the State Wakf Boards a more positive role in organising constructive programmes and thus transform the Boards from mere instruments of administrative supervision to creative organs for educational, social, economic and cultural renaissance. The contribution chargeable under the Act is upto six per cent of the gross income of a Wakf less cess, rates and taxes payable to Government or a local authority. The State Wakf Board was formed in February, 1958. Now in the course of implementation of the Act, the Wakf Board is calling upon the Mutawallis of the petitioners - wakfs to pay the contribution from and out of the total income of the estates.
10. Sections 3(1) of the Act (XXIX of 1954) defines 'wakf' as the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable, and includes 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. Thus the definition recognises both public and private wakfs. The State Board therefore, contends that it is clothed with the power to call upon the MutaWallis of these Wakfs to pay contribution irrespective of whether it is a public or a private wakf. The Board contends that the wakf itself provides for himself and his family, and even giving maintenance to his family or himself is regarded in Muslim law as a sadaqah which, is regarded as a pious act. The Board reminds that the Prophet, himself has declared that a. pious offering to one's family is more pious than giving alms to beggars and that the best of all pious offerings is a provision for one's self, so that one may not fall into need and the giving of sadaqah should commence with those whose subsistence is obligatory. It also reminds that support to one's self, his children and family is the first duty and necessity, that a man giving subsistence to his family is giving sadaqah and that giving alms to the poor has ward of one alms, but that giving to Tendered has two rewards. In other words, the Board contends that there can be no distinction or discrimnation between public and private wakfs and that wherever a Wakf is created it can come within the jurisdiction of the Board in regard to the management and supervision of the estates comprised in the wakf deed. The Board must be guided by the notions of Mohammaden Law. Such a contention came up for consideration in Kawsar Alam V. State of West Bengal at 471 and 472 where a substantial portion of the income of wakf property was permanently dedicated for religious an dcharitable purposes and the deed also allotted substantial portion of income for payment of allowances to Wakfs descendants in perpetuity. The Special Division Bench ofthe Calcutta High Court observed:
Nowadays a Wakf-alal-aulad is commonly regarded as a private trust and not as a trust for religious and charitable purposes....
...the provisions in the wakf deed for payment of allowances to the testator's descendants are not for religious or charitable purposes.
When this case went to the Supreme Court, their Lordships observed in Fazul Rabbi v. State of West Bengal at 1726.
...No religious worship, teaching or service or performance of religious rites is involved when the wakf provides for his family or himself even though a person, giving maintenance to his family or himself is regarded in Mahomadan Law as giving asadaqah. But even if regarded as a pious act a saddqah of this kind is not a religious worship or rite.
Their Lordships also quoted the observations of Lord Hobhouse in Abdul Fata Mahomed v. Rasamaya (1895) I.L.R. 22 Cal. 619 at 632:
...it would be doing wrong to the great law giver 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.
After extracting the above observations, their Lordships observed:
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 someone in necessitous circumstances and in law 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.
Their Lordships of the Supreme Court in Mohd. Ismail V. Sabir Ali have observed that where a wakf deed provides for an insignificant portion of the income to be used for certain religious purposes, such a wakf though in theory it vests as the property of God Almighty, is not for charitable or religious purposes.
11. Our own High Court in Ramanadham Chettidr v. Vada Lavvdi Marakayar (1910) 20 M.L.J. 254 : (1911) I.L.R. 34, has observed that aggrandisement of the donor's family or protection from poverty of the donor's descendants without any limit of time is not a charitable and pious; purpose as contemplated by the Mahomedan Law of wakfs, and a gift for the benefit of one's own family, relatives or descendants is not charitable nor pious within the meaning of the law of wakfs. In Income-tax Commissioner v. Jamal Mohamed I.L.R. (1941) Mad. 862 : (1941) Mad. 862 : (1941) 2 M.L.J. 148 : A.I.R. 1941 Mad. 535, this Court has held that a provision in the Wakf deed for the maintenance, education, marriage,, funeral and other necessities of the poor and needy among the descendants of the wakf in the male line cannot be said to constitute a trust for general public utility and that the trust being clearly of a private nature, the income allotted under the Wakf deed for the purposes mentioned therein which remains unspent for want of beneficiaries is assessable in the hands of the mutawalli. Venkataraman, J., in Mohamed Mahin v. Madras State Wakf Board (1967) 1 M.L.J. 65 at 74 has observed that a settlement both for the benefit of the persons mentioned therein and charitable acts mentioned therein will plainly be a wakf-alal-aulad within the meaning of Section 3(1)(iii) of Act XXIX of 1964, and that it will be a wakf for the purpose of the control of the Wakf Board to the extent to which the properties have been dedicated for the religious and charitable acts. This is the case-law on the subject.
12. Now turning to Act XXIX of 1954, we will see whether the Wakf Board has got jurisdiction to call upon the Mutawalli of a private wakf or wakf-alal-aulad to pay contribution to the Board. I am convinced on the review of authoritative case-law and on the provisions of the Act that the Board has got jurisdiction to claim contribution only from the income of the properties set apart exclusively for pious, charitable and religious purposes. The Act itself makes the position clear as between public and private wakf or wakf-alal-aulad and the Board can claim contribution only to the extent to which the properties have been dedicated for any purpose recognised by Muslim Law as pious, religious or charitable. Section 32(2) directs that a MutaWalli of a wakf shall prepare and furnish to the Board a full and true statement of accounts. It means that he should mention the amount spent for pious, charitable and religious purposes. The intention of the Legislature is, therefore, to confer jurisdiction on the Board to claim contribution in respect of the income from the estate of wakf-alal-aulad which is set apart for purely pious, charitable and religious purposes. The State Wakf Board may, with the best of intentions, resort to enhance the wakf funds, in order to devote and utilise the funds for Welfare objects. But the Board, cannot, on that account, under the guise of the historical theory of Wakfs under the Mohamedan Law, demand or claim or collect contribution from the mutuWallis of private wakfs simpliciter, i.e., where properties are solely dedicated for the benefit of the settlor and his descendants. Even in the case of composite wakfs created for the benefit of the family and descendants and for pious, charitable and religious purposes, the Board can claim contribution only in respect of the income from properties set apart for pious, religious and charitable purposes in the wakf deed.
13. It is next contended by the petitioners that the wakf Board has no jurisdiction to collect contribution from the income of the wakf properties without deducting the expenses in raising the income from these properties. In one case the wakf has got about 371/2 acres of land for which cultivation expenses are partly paid in grain and partly in cash. The contention of the petitioners' Counsel is that the Wakf Board cannot claim contribution from and out of the total income without deducting the expenses. Under Section 46 of the Act, the mutawalli of every wakf should pay contribution to the Board not exceeding six per cent, of the net annual income of such of its property. 'Net income' is defined in Section 3(g) as the total income less any revenue, cess, rates and taxes payable to the Government or any local authority. It does not mean that the mutawalli is not entitled to deduct the expenses actually incurred by him in raising the income from the immovable properties. The definition of net income' which means 'total income' has to be understood and interpreted according to the expression used in the Indian Income-tax Act. The Madras Hindu Religious and Charitable Endowments Act also levies contribution which is a percentage of the income after excluding expenses incurred for raising its income. Learned Counsel further contends that the expression 'total income' has been used in the Act in the sense of the ordinary concept of income, i.e., what is left after expenses for earning the same. He therefore, contends that 'total income' Would only mean income after deducting expenses for raising that income besides cess, rates and taxes payable to Government or local authority. I entirely agree with learned Counsel. In this connection, learned Counsel for the petitioners cited a direct case on the point Md. Ibrahim Hassan Sait v. Kerala Wakf Board , where the Bench had to interpret the, Words 'net
annual income.' The Bench held that the total income in Section 3(g) of the Act is an income exclusive of the expenses of cultivation and net income under the section is the said total income minus the revenue, cess, rates and taxes payable to the Government or any local authority. It is also useful to refer to the observations of their Lordships of the Supreme Court in Navnit Lal v. I.T. Appellate Assistant Commissioner at 1380, namely that the Word 'income' must be given its ordinary, natural and grammatical meaning and that income is a thing that comes in. Under these circumstances, the Board cannot claim contribution from mutaWalli without deducting the expenses incurred by him for raising the income from the immovable properties and without, of course, deducting the cess, rates and tapces payable to the Government or any local authority, as defined in Section 3(g) of the Act. That Would be the income defined in the Act as 'net income.'
14. Another contention put forward for the State Wakf Board is that these writ petitions are not maintainable, since the mutaWallis can file suits for declaration as provided in the Act questioning whether particular property is wakf property or not. No doubt, on the face of it, this argument may be impressive. But on a closer scrutiny of the case and analysis of the facts, it is clear that the petitioners herein are not questioning the character of the properties comprised in the Wakf deeds. All the petitioners concede that these properties are Wakf properties. But what is raised for consideration is whether the Board can claim contribution from the income from private wakf or wakf-alal-aulad which has been recognised by enactments in this country. Under these circumstances, Section 6 cannot and Will not come into play.
15. The result will be that the State Wakf Board will have no jurisdiction either to claim, demand or collect contribution from and out of the total income of the properties comprised in the wakf-alal-aulad. But the Board will have jurisdiction to collect or demand contribution from and out of the income set apart exclusively for pious, religious and charitable purposes in the Wakf-alal-aulad. Further the Board can claim contribution only from the net income of such properties after deducting the expenses incurred for raising the income and after deducting any revenue, cess, rates and taxes payable to the Government or to any local authority.
16. The writ petitions are allowed. There will be no order as to costs.