Kawsar Alam Mutwali vs State of West Bengal

D. Basu, J.—These two Rules raise the question of applicability of the West Bengal Estates Acquisition Act to a wakf estate. Both Rules relate to the wakf estate created by the same deed, namely, a registered deed of wakf executed by one Nizamuddin on April 25, 1947.

It is a notice issued u/s 10(2) of the West Bengal Estate Acquisition Act (hereinafter referred to as ''the Act'') which has brought the Petitioners, who are the mutwalis of the above estate, to Court. -The Petitioners'' case is that the notice is without jurisdiction since u/s 6(1)(i) of the Act, an institution established exclusively for religious and charitable purposes cannot be vested in the Government under the provisions of the Act. On receipt of the notice the Petitioners preferred objection to the Collector u/s 10(2) of the Act which, however, was rejected on the ground that the wakf did not create an institution exclusively for religious or charitable purposes, but personal benefits were reserved by the deed to the wakf and his family members and that, accordingly, the estate was not entitled to the benefit of Section 6(1)(i). The Petitioners'' appeal from the aforesaid order to the Commissioner has also been rejected and the reasons given by the Collector have been affirmed.

It has been urged before me that under Mahammedan law a valid deed of wakf vests the property in God and that Allah is not a juristic person like a deity under the Hindu law, and that, consequently, the definition of an ''intermediary'' u/s 2(i) of the Act would not apply to the mulwali who merely holds the wakf estate as a manager.

So far as the primary question, namely, whether the wakf deed in question created an institution ''exclusively for a religious or charitable purpose'' is concerned, the position is clear enough. The deed reserved interest for the settlor or members of his family, so that the wakf cannot be said to have been created exclusively for religious or charitable purposes within the meaning of Section 6(1)(i) of the Act, which expression has during the pendency of these Rules been authoritatively interpreted by the Supreme Court in Fazlul Rabbi Pradhan Vs. State of West Bengal, . There it has been laid down that where the wakif reserves for himself or the members of his family any benefit, including that of maintenance, the wakf estate cannot claim exemption from the operation of Section 3 of the Act. The argument that in Mahammedan law, maintenance of one''s family was regarded as a highly religious act, was negatived by the Court saying that Section 3 of the Act superseded by legislation that Rule, even if it were true under the Mahammedan personal law.

Failing in this plea, therefore, the learned Advocate for the Petitioner raises a more basic one, namely, that under Mahammedan law, as explained in the Hedaya (p. 335) and by the Privy Council in Rustam v. Mushtaq AIR 1921 P.C. 105, a wakf transfers the ownership of a property from the settlor to God and that the mutwali under the wakf is not a trustee but a mere manager of the property so vested in God. It is, accordingly, argued that the wakf estate cannot come within the definition of an ''intermediary'' as given in Section 2(i) of the Act.

It is true that u/s of the Act, it is only the rights of an ''intermediary'' which vest in the State. But the definition of an ''intermediary'' does not say that the intermediary must necessarily be a human or sentient being. If God can own property as an owner, He may be regarded as ''proprietor'' or ''tenure-holder'' according to the nature and class of interest or tenure which belongs to the donor or settlor, and God as the donee cannot obviously claim any interest higher than that of the donor.

The definition of ''intermediary'' is as follows:

Intermediary means a proprietor, tenure-holder, under-tenure holder or any other intermediary above a raiyat or a non-agricultural tenant....

The object of the West Bengal Estates Acquisition Act, as is well-known, was to abolish the feudal system of land tenure in India by eliminating all interests of middlemen standing between the State and the actual tiller of the soil. The Sovereign, according to the Law of Nations, is the ultimate owner of every inch of the territory and under municipal law too it has certain overriding power and even where a person enjoys a property free of the obligation to pay revenue to the State, that is, by virtue of a grant made or law laid down by the Sovereign. If God can own property, it is not an absurdity to hold that such ownership is subject to the ultimate rights of the Sovereign, by whose recognition and protection ''property'' as a ''legal right'' is acknowledged in Jurisprudence. It is for this reason that no religious or charitable endowment is exempted from the power of Eminent Domain belonging to the Sovereign, as was held by the Supreme Court in Raja Suriya Pal Singh Vs. The State of U.P. and Another, and the allied group of cases. A wakf estate is thus not exempted from the sovereign power of Eminent Domain. Nor it is exempted from the other sovereign power of taxation except in so far as it is allowed by legislation, such as the income tax Act.

Whatever be the contents of the personal law of the Muslims, since the days of the British in India it has ceased to apply except as to certain matters which are governed by the law of persons, such as succession and inheritance Even in that sphere, it is subject to legislation by the State. This is made clear in the very first page of Mulla''s Mahomedan Law (15th Ed.), which it may be instructive to reproduce--

The Mahomedan law is applied by the Courts in India to Mahomedans only not in all, but some matters only. The power of Courts to apply Mahomedan law to Mahomedans is derived from and regulated partly by statutes of the Imperial parliament read with Article 226 of the Constitution but mostly by Indian legislation.

As regards India, the rules of Mahomedan law fall under three divisions, namely:

(i) those which have been expressly directed by the Legislature to be applied to Mahomedans, such as rules of Succession and Inheritance;

(ii) those which are applied to Mahomedans as a matter of justice, equity and good conscience, such as the rules of the Mahomedan law of Pre-emption;

(iii) those which are not applied at all, though the parties are Mahomedans, such as the Mahomedan Criminal Law....

The only parts of Mahomedan law that are applied by the Courts in India to Mahomedans are those mentioned in Clause (i) and (ii). In other respects, the Mahomedans in India are governed by the general law of India.

The rules of Mahomedan law that have been expressly directed to be applied to Mahomedans are to be applied except in so far as they have been altered or abolished by legislative enactment.

Hence, the Mahammedan law, as applied in India to-day, has little to say as to the relationship of a Mahammedan to the Sovereign. The rights of the Sovereign cannot be curtailed by any act of a Muslim including the creation of a deed of wakf. It is by virtue of this sovereign power that the State in India could enact the various wakf Acts by which the incidents of a wakf itself have come to be regulated. That is how Section 3 of the instant Act, which was relied upon by the Supreme Court in the cited case, overrides anything in the Mahammedan law as to the property under a wakf deed being vested in God. The opening paragraph of Section 3 of the Act says:

The provisions of this Act shall have effect notwithstanding anything to the contrary contained in any law.

If it were otherwise, the very object of the Estates Acquisition Act could be defeated so far as the Mahammedan population is concerned, by making a deed of wakf in respect of every inch of soil held by a Muslim in any category of, interest recognised by the law of the land.

A glance at the deeds of wakf in question will show that the donors granted to the Almighty ''such interest'' as they themselves possessed in the scheduled lands, and the schedules reveal that they are all tenanted lands, and that is why in the records-of-rights the interest of the mutwali is recorded as that of ''tenure-holder''. God as the donee could not, therefore, acquire under the wakf deeds any interest other than that of a ''tenure-holder'' within the meaning of Section 2(i) of the Act.

No fault can, therefore, be found with the impugned orders. The Rules are, accordingly, discharged with costs which is assessed at ten gold mohurs in each Rule.

As prayed for on behalf of the Petitioner the operation of this order will remain stayed for six weeks from this date.