Mohammed Sidick Jamall vs Ahmed Sidick Jamall

S.K. Mukherjea, J.—This is an appeal from a judgment and decree in a suit brought u/s 92 of the Code of Civil Procedure, by which the trustees of a public charitable trust, held by the learned Judge to be a wakf, were removed from office and the official mutwalli who had been appointed in the suit to act as mutwalli of the wakf, was directed to continue. By the said decree it was ordered that the wakf be administered by the Commissioner of Wakfs under the Bengal Wakf Act, 1934, and direction were given for certain investigations and for application of the income of the wakf property to the objects of the wakf.

On February 10, 1919, one Jamall Jairaz and his son Sidick Jamall purchased premises No. 8/1/2, Loudon Street. After the death of Jamall Jairaz, by an indenture dated December 11, 1920, the said Sidick Jamall, his brother Cassim Jamall and his sister Bai Fatma Bai, with the intention to create a wakf, conveyed the said premises to the said Sidick Jamall and to his sons Ahmed Sidick Jamall, the Defendant No. 1 and Mohammed Sidick Jamall, the Plaintiff No. 1, as trustees upon trust to realise the rents, issues and profits of the premises and after payment of taxes and costs of repairs, spend the balance of the income for maintenance of a mosque and madrasa at Madhupur, for charities to the poor at Madhupur and Calcutta, for charities to other madrasas and orphanages in Calcutta and elsewhere, for granting monthly stipends to deserving Sunni Mahammedan students and lastly for such other charitable cause in such proportion as the trustees in their absolute discretion might think proper.

Sidick Jamall died in 1947 leaving him surviving his sons Ahmed, Mohammed, Ebrahim and Dawood. On his death, Ahmed and Mohammed became the surviving trustees.

On August 12, 1949, one of the trustees Mohammed Sidick Jamall and his two brothers Ebrahim Sidick Jamall and Dawood Sidick Jamall brought the present action with the consent of the Advocate-General, against the Defendant No. 1 u/s 92 of the Code of Civil Procedure, for his removal from the office of the trustee, for accounts, for settlement of a scheme and for other reliefs.

It is alleged that since the death of Sidick Jamall, the Defendant No. 1, who had been in charge of the management of the trust, had mismanaged the trust property and had committed breach of trust.

It is said that by reason of the acts of mismanagement, misappropriation and wilful default the objects of the trust have been and are still being deprived of the benefits of the trust and it has become necessary for the Court to frame a scheme for administration of the trust.

In his written statement, the Defendant No. 1 denied the charges. He alleged that the Plaintiffs induced the tenants of the trust property not to pay rent to him and thereby obstructed the administration of the trust. He claimed that the trust created by the deed of 1920 is a private wakf.

By an order dated May 23, 1956, the Commissioner of Wakfs, on his own application, was added as a party to the suit.

In his written statement the Commissioner contended that the deed of December 11, 1920, was executed by the settlor to create a public wakf of premises No. 8/1/2, Loudon Street, Calcutta, and as such the said property ought to be administered in accordance with the provisions of the Bengal Wakf Act, 1934. The Defendant No. 1 having failed to cause enrolment of the said wakf in the register of wakfs, the Commissioner decided in January 1954, u/s 46A of the Act, that the said property is a wakf property and directed the Defendant No. 1 to apply for necessary enrolment.

The Plaintiffs in answer to the Commissioner filed an additional written statement in which they denied that the deed of trust is a wakf or that the said property is a wakf property and contended that the Bengal Wakf Act, 1934, has no application to the said deed or property. They contended that the decision of the Commissioner made u/s 46A should be revoked and set aside.

Apart from the correspondence, oral evidence was given by the Plaintiffs Nos. 1 and 2 and the Defendant No. 1. The Defendant No. 1 admitted that immediately after the death of his father he took over the management of the trust property. It is clear that he was in complete charge and control of the property from June 1947 to 1949 when the official Receiver was appointed Receiver of the trust property.

In 1966, the official Receiver was discharged and the Defendant No. 1 resumed and continued the management of the property upto August 23, 1963, when the official mutwalli was appointed in the suit. It is common case that during these periods, the Defendant No. 1 collected the rents of the trust property. Although he denied that he had not spent anything out of the income of the trust property for charitable objects, it appears from the correspondence as also from the evidence that in fact the Defendant No. 1 had spent nothing, or next to nothing, for the maintenance of the mosque and the madrasa or for any other object of the trust. He admitted that he never maintained any accounts and never rendered any. Admittedly, municipal rates in the neighbourhood of Rs. 10,000 are in arrears and the trust property is badly out of repair. There is ample evidence that the entire income of the trust property or at least the major part of it had been appropriated by him for his family expenses. It is clearly established by evidence that he has persistently committed breach of trust. I agree with the learned trial Judge that he cannot be left in charge of the trust property. As for the other trustee, the Plaintiff No. 1, the learned Judge found him to have been negligent in not looking after the trust which he should have done instead of leaving the entire charge and control of the trust in the hands of the Defendant No. 1. He is a national of Pakistan and ordinarily resides in Pakistan and, therefore, in the opinion of the learned Judge he is not in a position to manage the wakf property efficiently.

In view of the contention of the Commissioner that a wakf was created by the deed of 1920 and the property is a wakf property, the character of the trust had to be determined at the trial. Before going into that question it will be necessary to dispose of certain technical objections raised in the appeal as to the maintainability of the suit. It is urged that the suit, as framed, is not a representative suit as there is no such averment in the cause title or in the body of the plaint.

The objection may be disposed of shortly. Order 7, Rule 9(2) of the CPC enjoins or at least has been held to enjoin by a Bench decision of this Court in Bidhu Sekhar Banerjee Vs. Kuladaprasad Deghoria, that where the Plaintiff sues or the Defendant is sued in a representative capacity, the plaint shall contain such statement as will show in what capacity the Plaintiff or the Defendant sues or is sued. Be that as it may, it was held in that case, relying upon an earlier Bench decision in Kuarmoni Singha v. Wasif Ali Muria AIR 1916 Cal. 164, that where a suit is brought by or against a person in a representative capacity, it is not necessary to state in the cause title of the plaint, the representative capacity in which the Plaintiff or the Defendant sues or is sued. In Kuarmoni Singha''s case there was no such statement in the cause title, but on reading the plaint it was clear that the Plaintiff was suing in a representative capacity. Here also it is equally clear on reading the plaint and the prayers that the Plaintiffs are suing in a representative capacity. It may be noted that in Bidhu Sekhar Banerjee Vs. Kuladaprasad Deghoria, , although the plaint was not amended, the objection as to the maintainability of the suit failed. Moreover, it was expressly held by the Judicial Committee in Musammat Ali Begum v. Badrul Islam All Khan (1938) L.R. 65 IndAp 198 that a suit u/s 92 of the Code of Civil Procedure, once validly instituted, is a representative suit subject to all the incidents affecting suits in general and representative suits in particular.

The objection that the suit is not maintainable as against the Commissioner of Wakfs in the absence of fresh consent of the Advocate-General is of no substance. It is settled law that no fresh consent is required where the amendment of the plaint or addition of party does not change the nature or scope of the suit.

In my opinion, in the present case, the character of the suit has not changed by reason of the addition of the Commissioner of Wakfs. It is true that the Commissioner has claimed that the property is a wakf property which the Plaintiffs dispute. The plaint is not, however, primarily, or at all, concerned with the character of the public trust, that is to say, whether it is a wakf or a more comprehensive public charitable trust in the English sense. The object of the suit is not to obtain a declaration as to the character of the public trust but to secure the removal of a trustee for breach of trust and administration of the trust property.

The objection may also be disposed of on another ground. The Commissioner of Wakfs has not been added as a party at the instance of the Plaintiffs. He has been added under an order of Court made on his own application. The order by which he was added as a party was not made subject to the consent of the Advocate-General. The Commissioner having himself made the application and obtained the order cannot be permitted to take the objection that the suit is not maintainable as against him by reason of absence of fresh consent.

It has been urged before us that although in the plaint there is no prayer for declaration as to the character of the trust, that is to say, whether it is a public wakf as contended by the Commissioner or a private wakf as contended by the Defendant No. 1 or a more comprehensive religious and charitable public trust as claimed by the Plaintiffs, the parties have, in view of the pleadings, invited the Court to pronounce on the question. Such an adjudication, it is said, is beyond the scope of a suit brought u/s 92 of the Code.

In Mukherjea''s Hindu Law of Religious and Charitable Trusts, 1st ed., p. 412, it is said:

To attract the operation of Section 92, the suit must be of a certain character and pray for certain reliefs. In the first place, the suit should relate to'' a trust created for public purposes of a charitable or religious nature. In the second place, it must proceed on an allegation either of breach of trust or of the necessity of having directions from the Court for the administration of trust. In the third place, the relief claimed must be one or other of the reliefs specified in the section and lastly, the suit must be one brought in a representative capacity in the interests of the public or of the trust itself and not for vindicating the private rights of the Plaintiff.

In the present case, if one goes by the plaint, there is no question that the suit has been properly instituted u/s 92 of the Code as it satisfies all the requirements of such a suit. It is true no doubt that declaration of a public trust or declaration as to the nature of a public trust is not one of the reliefs specified in Section 92. Does it however mean that in a suit brought u/s 92 the Court cannot make such a declaration in any circumstances? In Mahant Pragdasji Guru Bhagwandasji Vs. Patel Ishwarlalbhai Narsibhai and Others, a suit was instituted u/s 92 of the Code for a declaration that certain properties were religious and charitable trust properties for removal of the Defendant from his office, for accounts, and for framing of a scheme. The District Judge dismissed the suit on the ground that the properties were not public charitable properties and, therefore, the Court had no jurisdiction to entertain the suit. On appeal, the High Court held that the ownership of the properties was so restricted by the obligation to maintain an institution for purposes which could only be described as public charitable purposes, that the suit must be regarded as one coming within Section 92 of the Code of Civil Procedure. The judgment of the trial Court was reversed and the suit was remanded so that it might be disposed of on merits. On the evidence adduced by the parties the District Judge came to the conclusion that the allegations of misconduct and breach of trust were not proved and, in that view of the matter, dismissed the suit subject to the declaration already given by the High Court that the properties were public, religious and charitable properties. On appeal, the High Court affirmed the decision of the District Judge. On appeal to the Supreme Court by the Defendant, B.K. Mukherjea, J. in delivering the judgment of the Court said:

In our opinion, after the decision arrived at concurrently by both the Courts below on the merits of the case, it was beyond the scope of a suit framed u/s 92 of the Code to give the Plaintiffs a bare declaration of this character and make it a part of the decree, although the suit itself is dismissed.

The position was summed up by Mukherjea, J. in these words:

When the Defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section if the Plaintiff is held entitled to it; but when the case of the Plaintiff fails for want of a cause of action, there is no warrant for giving him a declaratory relief under the provision of Section 92 of the Code of Civil Procedure.

An instance where a declaration was made in a suit brought u/s 92 of the CPC will be found in Musammat Ali Begum v. Badrul Islam Supra. The suit was brought for a declaration that certain properties were wakf properties, for removal of the Defendant who was claimed to be a de facto mutwalli, for accounts and for administration of the wakf. The trial Court held that there was no valid wakf and dismissed the suit. On appeal, the High Court held that there was a valid wakf and remanded the case for a decision on the question whether the mutwalli should be removed for taking of accounts and for other necessary directions. On appeal, the Judicial Committee declared that a portion of the properties were not wakf properties and subject thereto affirmed the decree of the High Court. It is, therefore, clear that where the Court grants one or some of the reliefs specified in Section 92 of the Code of Civil Procedure, the Court may decide whether there is a public charitable or religious trust and pronounce on the character of the trust in aid of or as ancillary to those reliefs.

In the present case, on the basis of the evidence adduced by the parties, the learned Judge has directed removal of the trustees. He has also given necessary directions for administration of the trust. In order to grant these reliefs the learned Judge had to determine the nature and character of the trust. On the basis of the principles laid down in Pragdasji v. Iswarlalbhai Supra I have no hesitation in holding that the suit is maintainable u/s 92 of the Code. If the learned Judge had come to the conclusion that the Plaintiffs have no case on the question of breach of trust and administration of the estate, or in other words, there is no cause of action, the position might have been different.

I now proceed to consider whether the learned Judge was right in holding that the property is a wakf property. He has held that a wakf was created in respect of the property, not by the deed of December 11, 1920, but by a prior declaration made by Jamall Jairaz and Sidick Jamall; also by reason of the fact that the property was to be dealt with as trust property the net income of which was to be applied for purposes which are valid of a wakf; and also by the application of the income of the property to such objects. The deed of December 11, 1920, he found, is of no effect in law, because the property had been disposed of by a prior declaration of wakf and, therefore, there was nothing to dispose of by the deed. It was nobody''s case either in the pleadings or at the trial that a wakf was created otherwise than by the deed of trust. It does not appear from the evidence that Jamall Jairaz or Sidick Jamall ever made a prior declaration of dedication of the property to God Almighty or to any charitable or religious object.

The recital in the deed of 1920 reads:

Whereas upon the purchase of the said premises it was arranged between the said Jamall Jairaz deceased and the said Sidick Jamall that the said premises should be dealt with and treated as trust property the net income thereof being applied for charitable purposes for the benefit of the soul of Hirabai Cassumbhoy Natha deceased and other persons as hereinafter mentioned and since the said purchase the net income derived from the said property has all along been still and is being so applied and whereas the said Jamall Jairaz died intestate and whereas the said Sidick Jamall is desirous of continuing the said trust and creating a wakf of the said hereditaments and premises....

It will be seen that the recital does not speak of any declaration of dedication. It merely says that it was arranged between the owners of the property that the property should be treated as a trust property and the income of the property was to be applied to certain charitable objects and that in fact the income was so applied. The recital made in a deed which is forty years old has a certain evidential value. But can an arrangement be treated as a declaration?

In Banubi v. Narsingrao ILR 31 Bom. 250 it was held that a mental act, although afterwards sufficiently expressed in conduct, will not, unless clothed in appropriate words, create a wakf. There the testator left a will which provided:

I have established a Madrasa. For the purpose of carrying on the work thereof I have given Rs. 7,000 from out of my estate and I have made a separate arrangement in respect of the same in my trade. The trustees should carry on the trade accordingly from out of the said money, and after deducting the expenses thereof, from the balance that may remain as net profits the trustees should pay the house rent of the Madrasa and the pay of the teacher and other expenses.

The Court refused to hold that a mere statement in a will of some gift in the past can be referred back to the date still undetermined, when that gift is afterwards alleged to have been made, or that such a narrative statement can in any view be an adequate substitute for the oral declaration of dedication to God, which the Mohammedan Law appears imperatively to require, synchronously with the act of dedication itself.

The test is whether there has been a declaration or not. As was said by Beaman, J. there is a plain distinction between giving in charity and declaring that one has given in charity. There is some evidence in this case that the income of the property was spent in charities immediately after the property was purchased. That evidence, however, is of doubtful value having regard to the fact that the evidence was given in answer to questions which were strongly suggestive of the answers. In any event, the evidence given is evidence of application of the income of the property to charities not of any declaration by the owners that they had given the property in charity. Strictly speaking, the Defendants ought not to have been permitted to adduce the evidence having regard to the fact that the case of prior declaration has not been pleaded at all. Counsel for the Appellants rightly relied on the judgment of the Privy Council in AIR 1930 57 (Privy Council) in which it was held that where a claim has never been made in the defence no amount of evidence can be looked into upon a plea which was never put forward. Be that as it may, even if the entire evidence is accepted and effect is given to the recital, it cannot be said that a declaration of wakf by the owners prior to and independently of the deed of wakf has been proved. Therefore, I cannot agree that a valid wakf was created by a prior declaration.

I may now proceed to consider whether on a proper construction of the deed of December 11, 1920, a public wakf was created or whether it had the effect of bringing into existence a more comprehensive religious and charitable public trust. The difference between the two was clearly brought out in the judgment of the Privy Council in Vidya Varuthi Thirtha v. Balusami Ayyar 48 I.A. 302.

Delivering the judgment of their Lordships, Mr. Ameer Ali observed:

The Muhummadan Law relating to trusts differs fundamentally from the English Law. It owes its origin to a rule laid down by the 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''. When once it is declared that a particular property is wakf, or any such expression is used which implies wakf, or the tenor of the document shows that a dedication to pious or charitable purposes is meant, the right of the wakif is extinguished and the ownership is transferred to the Almighty. The donor may name any meritorious object as the recipient of the benefit. The manager of the wakf is the mutwalli, the governor, superintendent or curator... nor the mutwalli has any right in the property belonging to the wakf; the property is not vested in him and he is not a ''trustee'' in the technical sense.

In the present case, it will be necessary to examine whether the settlor intended to create a wakf and, if so, whether he failed in his object.

The deed itself clearly and unequivocally recites that the settlor is desirous of creating a wakf of the property for the benefit of the soul of his deceased parents and of his predeceased wife. It is also recited that the income of the property has all along been applied to the charities specified in the deed for the benefit of the soul of those persons. It is further recited that it was arranged between the settlor and his deceased father that the property should be dealt with as trust property and the income thereof be applied for those charitable objects and the purpose of the deed of trust is to continue the said trust and to create a wakf.

In view of these recitals, it cannot be disputed that by the deed the settlor intended to create a wakf. Counsel for the Appellants submitted that as the trustees did not enrol the property as wakf property under the Bengal Wakf Act, 1934, the treated the property as a trust property and not as a wakf property. In my opinion, having regard to the express declaration in the deed that the settlor intended to create a wakf, the omission to register the property cannot be regarded as an indication of the intention of the settlor not to create a wakf. By the recitals in the deed itself the intention of the settlor to create a wakf has not been left in doubt.

Now, is there anything in the objects of charity specified in the deed which may be said to be inconsistent with a wakf? The objects are: (a) upkeep and maintenance of the mosque and madrasa at Madhupur, (b) charities to the poor in Calcutta and Madhupur, (c) charities to the other madrasas and orphanages in Calcutta and elsewhere, (d) for granting monthly stipends to deserving Sunni Mahammedan students, (e) such other charitable cause in such proportion as the trustees in their absolute discretion may think proper.

There is no question that objects (a), (c) and (d) are recognised by Moslem Law as religious and charitable. It is to be noted that Moslem Law sanctions charities in favour of the poor in general and not merely in favour of the Moslem poor. Ameer Ali in his Mohammedan Law, 2nd ed., vol. 1, p. 201, says:

According to the Bahr-ur-Raik, it is lawful for a Moslem to create a wakf in favour of the non-muslim poor and destitutes.

In this connection, reference may be made to the Mussalman Wakf Validating Act, 1913, Section 3, of which provides that it shall be lawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of Mussalman Law for certain purposes provided the ultimate benefit is in such cases expressly or impliedly reserved for the poor. It is not without significance that the statute speaks of the poor and not of the Moslem poor. In Islam, service of the poor is service of God.

In the above view of the matter, objects (a), (b), (c) and (d) are undoubtedly recognised by the law of wakfs as religious and charitable. Object (e), that is to say, such other charitable cause in such proportion as trustees in their absolute discretion may think proper, should, in my opinion, be read ejusdem generis or at any rate, with an eye to the intention of the settlor to create a wakf as expressly declared in the deed itself, and not in a manner which will have the effect of defeating the intention of the settlor. No doubt, the trustees have been given an absolute discretion to apply the income of the property to other charitable causes of their choice but, in exercising their discretion, the trustees have to give effect to the declared intention of the settlor to create a wakf and in the context of other objects specified by the settlor in the deed. Words ought to be made subservient to the intention, not contrary to it--verba intentioni none e contra debent inservire.

It appears, therefore, that the objects of the trust are not inconsistent with the Mahammedan Law of wakf. The trust is also well within the scope of the definition of wakf in the Bengal Wakf Act, 1934, which defines wakf to mean

the permanent dedication by a person professing Islam of any movable property for any purpose recognised by the Islamic Law as pious, religious or charitable.

It was submitted that in a wakf the property does not vest in the mutwallis while in a trust, the property vests in the trustees. Therefore, it was argued that, as in the present case, the property has been conveyed to the trustees and has legally vested in them, the disposition is a trust and not a wakf. It may be conceded on good authority that wakf signifies the appropriation of a particular article in such a manner as subjects it to the rules of divine property whence the appropriator''s right in it is extinguished, and it becomes a property of God by the advantage of it resulting to his creatures. (The Hedaya, Hamilton''s translation, p. 231). It is the detention of a thing in the implied ownership of Almighty God, in such a manner that its profits may revert or be applied to the benefit of mankind (Bailie''s Digest, p. 558). A wakf extinguishes the right of the wakif or dedicator and transfers ownership to God. The mutwalli is the manager of the wakf, but the property does not vest in him, as it would in a trustee, in English Law (Mulla''s Mahommedan Law, 15th ed., p. 154).

In Vidya Varuthi Thirtha v. Balusami Ayyar Supra Mr. Ameer said:

Neither under the Hindu Law nor in the Mahommedan system is any property ''conveyed'' to a shebait or a mutwalli, in the case of a dedication. Nor is any property vested in him; whatever property he holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage. Under the Mahommedan Law, the moment a wakf is created all rights of property pass out of the wakif, and vest in God Almighty. The curator, whether called mutwalli or sajjadanishin, or by any other name, is merely a manager. He is certainly not a ''trustee'' as understood in the English system.

It is necessary to remember that the ownership of Almighty God is an implied ownership, ownership in an ideal sense or notional ownership.

Does conveyance of the property to the trustees or legal vesting of the property in the trustees or the use of expressions such as ''trust'' or ''trustees'' in the document, imply that the disposition is a trust and not a wakf?

In this connection reference may be made to the decision of Jenkins, C.J. and Woodroffe, J. in Ram Charan Law v. Shahebazadee Fatima Begum 19 C.W.N. 1061. A Mahammedan granted, conveyed and assigned a property to the trustees upon trust that they should apply the net income of the property "in the due and proper observance of the annual Mohammedan festivals of the Mohurrum". The question arose whether a valid wakf was created by the deed. Jenkins, C.J. in delivering the judgment of the Court said:

The dedication is said to have been effected by a document o� the 16th July, 1864. It is in the form of an English Indenture and is engrossed to be a conveyance to Fatima Begum and Fyezeddin, their heirs or representatives or assigns, of the entirety of the premises in suit upon trust that they, their heirs or representatives or other trustee or trustees for the time being should apply the surplus of the rents and profits for the property in the due and proper observance of the annual Mahommedan festivals of the Muharram.

On these facts, the learned Judges expressed the opinion that a valid wakf was legally constituted and that the employment of the trustees for the purpose of carrying it into effect in no way prejudiced the dedication.

To create a valid wakf, the wakif has to divest himself of the property given in wakf. Very often possession of the property is delivered to the mutwalli or conveyed to him by the wakif.

If the property of which a wakf is sought to be created is formally conveyed to the trustees, as in the present case, for the purpose of carrying out religious and charitable objects which are properly the objects of a wakf, I do not see any reason why the wakf should be defeated by such a conveyance. The property is legally vested in the trustees by the conveyance and yet it is impliedly vested in Almighty God. The property is legally vested in the trustees only for the purpose of carrying out the object of dedication. The legal vesting is not the essence of the transaction but is only in aid of the main purpose. In a different context, the Judicial Committee pointed out that it is only in an ideal sense that property can be said to belong to an idol and the possession and management of it must in the nature of things be entrusted to some person as shebdit or manager: Prosonna v. Golap (1875) L.R. 2 I.A. 145. For the same reason, property which is the subject of wakf may be legally vested in the trustees. Unlike the Hindu deities, God Almighty in the scheme of Moslem law of wakfs is not a juristic person. He is never a party to a legal proceeding.

It was argued that in the present case conveyance to the trustees is an index of the intention of the settlor to create a trust in the English sense. The answer is that it is not necessary at all to gather the intention of the settlor from the form of conveyance when the settlor has expressly declared in the deed itself that his intention is to create a wakf.

In view of what I have said, I have no hesitation in holding that a valid public wakf was created by the deed of December 11, 1920. If I may repeat, the considerations which impel me to hold so, are, the express declaration of the settlor that he intends to create a wakf; that he intends to do so for the benefit of the souls of his deceased parents, his predeceased wife and of his own, which is not a secular but a religious or a spiritual purpose; that each and every object of the trust is recognised by Mahammedan Law as pious, religious or charitable; that the conveyance in favour of the trustees to hold the property in trust for carrying out those objects is not inconsistent with a wakf; and that the disposition is fully covered by the definition of wakf in Bengal Wakf Act, which is in force in this State.

The Appellants as also the Respondent relied on a decision of the Supreme Court in Zain Yar Jang v. Director of Endowments AIR 1962 S.C. 985. In 1954, the Nizam executed a trust deed by which he appointed Nawab Zain Yar Jang, a Muslim nobleman of Hyderabad and V.P. Menon, a Hindu, as trustees. The deed recited that

the settlor feels that he should now devote and dedicate a substantial part of his remaining assets for being utilised for the relief of the poor, for the maintenance of religious institutions, for the advancement of education and for other charitable purposes without distinction of religion, caste or creed.

To give effect to his said desire, the settlor declared in the deed of trust that he had prior to the execution of the trust transferred to the trustees certain monies, and by the said deed he assigned and transferred divers shares and securities to the trustees to be held by them upon certain trusts. It was provided in the deed:

(3) The Trustees shall hold and stand possessed of the Trust Fund upon the following Trusts:

3(a) To pay or utilise the balance of such interest dividends and other income of the Trust Fund (hereafter called the ''net income of the Trust Fund'') and if the Trustees so desire, the corpus of the Trust or any part of the corpus for all 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 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 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, lecturerships, 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).

The question which arose for determination was the nature of the trust and particularly whether the trust was a wakf within the meaning of Wakf Act, 1954. Section 3(1) of the Act defines wakf to mean a 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. A ''beneficiary'' has been defined to mean

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 appears from the judgment that it was contended on behalf of the Respondents that the significant feature of the document was the desire of the settlor to devote and dedicate a substantial part of his remaining assets for being applied to religious purposes and that is the distinguishing feature of wakfs; that no importance should be attached to words like the ''settlor'' and the ''trustees'' because the. 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; that the intention of the document is the desire of the settlor to dedicate the property 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, the Court should not lose sight of the basic concept which actuated the settlor in executing the document and that concept is one of dedication on which wakfs are based; and that 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 and that the pervading idea of the document is the dedication of the property to purposes recognised by Muslim Law as valid for wakf and it is only as a means to give effect to that idea that the property has been vested in the Appellants.

The general principles on which the Respondents relied are, in the abstract, unexceptionable and the Court never suggested as it could not, that it should be guided by the form of the document rather by its substance, or that the use of words such as ''settlor'' or ''trustee'' or the vesting of the legal title in the trustees is conclusive. The Court proceeded on the principle that the factors to be taken into consideration in these cases are: (a) the basic purpose which prompted the settlor to execute the deed, (b) the nature of the objects of charity, and (c) whether those objects are valid objects of wakf? The implication and effect of the vesting of the legal title in the trustees should be considered in the context of the intention of the settlor and the objects of charity. On a careful consideration of the intention of the settlor as recited in the deed of trust and close examination of the objects of charity, the Court held that the document created a comprehensive public charitable trust. Gajendragad-kar, J. said:

There are certain other broad features of the transaction which are wholly inconsistent with the notions of a wakf. The outstanding impression which the documents 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 consideration which governs the creation of wakf. Amongst the objects for which the trust was created were included other charitable purposes without distinction of religion, caste or creed and that obviously transgress 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 Clause 3(c)(ii). Clause 3 provides that the Trustees shall hold and stand possessed of the Trust Fund upon the Trust specified in Sub-sections (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 consideration 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 best 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 religious institutions not confined to any particular religion. It is plain that it was furthest 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.

He added:

It is in this context that the other provisions about the vesting must be considered.

and came to the conclusion that

the vesting provision has not been adopted as a means to carry out the intention to dedicate the property to the Almighty but it constituted the essential basis of transaction and that is to transfer the legal title of the Trust property to the Trustees.

In the present case, the context, as I have said, unmistakably indicates the wakf character of the disposition and it is in that context that vesting of the legal title in the trustees has to be considered. Here, the vesting provision has been adopted, to use the language of the Supreme Court "as a means to carry out the intention to dedicate the property" to objects which are valid objects of wakf.

It will not be out of place to mention that the Wakf Act, 1954, with which the Supreme Court was concerned, with its strong Moslem accent, has not been extended to West Bengal.

The Commissioner has pleaded that the suit has been instituted in contravention of Section 46A, 70, 73 and 92 of the West Bengal Wakf Act, 1934 and, as such, the suit is not maintainable. It seems that these objections were not pressed at the trial. However, as these are questions of maintainability of the suit under a statute, I propose to deal briefly with these objections. Section 46A provides that the decision of the Commissioner, whether a property is a wakf property, shall be final unless revoked or modified by a competent Court. The decision was taken long after the suit was instituted. It was held by this Court in Commissioner of Wakfs v. Zahangir (1943) 48 C.W.N. 157 that there is nothing in the Act which would take away the jurisdiction of the Court to try a suit already instituted by reason of a subsequent decision made by the Commissioner u/s 46A. Section 70 provides that notice of every suit or proceeding in respect of any wakf property except a suit for the recovery of rent by a mutwalli shall be given to the Commissioner. Here the Commissioner has on his application been added as a party and has appeared in the proceedings. He has appeared not merely to take objection to maintainability of '' the suit but to ask for the administration of the estate. The question of notice u/s 70 is, therefore, immaterial. That is also the reason why the objection on the ground that consent of the Commissioner has not been obtained u/s 73 loses its force. The Commissioner has himself asked in his written statement for administration of the estate which is one of the reliefs claimed in the suit. Apart from that, once the decision of the Commissioner made u/s 46A is out of the way, I doubt, whether Section 73 will at all be attracted when the Plaintiff does not admit that the property in respect of which the suit has been brought is a wakf property. As for Section 92 which provides that no suit shall be brought in any Civil Court to set aside or modify any order made under the Act, it may be pointed out that the section speaks of an ''order'' and not of a ''decision''. In fact, Section 46A specifically provides for setting aside the decision of the Commissioner by a competent Court. In any event, the learned Judge has not, by the decree, expressly set aside the decision of the Commissioner. As I have held that a valid wakf was created by the deed of December 11, 1920, the decision of the Commissioner made u/s 46A should not be disturbed.

Having regard to my finding that the property which is the subject of the deed of December 11, 1920, is a wakf property. I must also hold that the Bengal Wakf Act, 1934, applies to the wakf. As I have said, I agree that for the reasons given by the learned Judge the Defendant No. 1 should be removed from acting as a trustee, but I do not see any good reason or sufficient reason for removing the Plaintiff No. 1. He left the management of the trust in the hands of the senior trustee for a short time. In doing so, he has been found negligent. There is evidence, however, that on occasions, he spent monies in the cause of the objects of charity out of his personal funds. It was he who brought the suit when he found that the Defendant No. 1 could not be relied upon to carry out the objects of the trust. No one, not even the Defendant No. 1 has asked for his removal. The Commissioner has not asked for his removal. If he has been negligent at all, his negligence has not been such as to disqualify him from acting as a trustee. He may ordinarily reside in Pakistan, but that by itself does not disentitle him to act as a trustee. Section 73 of the Trusts Act provides that whenever any trustee is for a continuous period of six months absent from India or leaves India for the purpose of residing abroad, a new trustee may be appointed in his place. By Section 1 the operation of the Act has been expressly excluded so as to affect religious or charitable endowments or rules of Mahammedan Law as to wakfs. It is provided in Fatawa-i-Ankaria, vol. II, p. 217, that if the wakif appoints as mutwalli a person who has absented himself, the Kazi has the power of nominating in his place another, for the time being, and when the mutwalli arrives, the trust will revert to him. I do not say for a moment that the Court is powerless to remove a mutwalli on the ground of long absence, if the Court is of opinion that by reason of his absence, the interest of the trust has been affected or is likely to be affected adversely. I only say that there is no inflexible rule in the matter. The trust property is small and consists only of a Calcutta house. It should not be difficult to collect rents. The administration of the trust does not involve much time or trouble. The Plaintiff No. 1 may, even if he ordinarily resides in Pakistan visit Calcutta and Madhupur from time to time and manage the properties with the help of his agents and employees. If it is found that by reason of his conduct or long absence he has failed to carry out the objects of the trust, he can always be removed. I do not agree, however, that in the present circumstances he ought to be removed.

It was submitted that as he is a national of Pakistan he ought to go. I do not know of any law, or at least none has been cited, under which a foreign national is debarred from acting as a mutwalli or a trustee. In common with Medieval Christianity, Islam does not recognise national barriers and in administering the law of wakfs the Court should not, in my opinion, lose sight of the catholic spirit of Islam.

In the view I have taken the appeal succeeds in part. The order of the learned Judge removing the Plaintiff No. 1 from the management of the wakf property being premises No. 8/1/2, Loudon Street, Calcutta, is set aside. The order directing the Commissioner of Wakfs to determine the nature and extent of the wakf, to frame a scheme and to administer the said wakf is also set aside. The official mutwalli is discharged from acting as rriutwalli of the said wakf. The Plaintiff No. 1 will act as mutwalli of the said wakf. The wakf is directed to be administered having regard to and in compliance with the provisions of the Bengal Wakf Act, 1934, by the said Plaintiff. He will be at liberty to appoint a trustee or trustees under the indenture dated December 11, 1920. The trustee or trustees so appointed will act as mutwalli or mutwallis of the said wakf. The Plaintiff No. 1 is directed to apply forthwith for enrolment of the wakf property under the provisions of the Bengal Wakf Act, 1934. He is also directed to ensure that the net income of the wakf property is applied to the objects specified in the indenture of December 11, 1920. The official mutwalli is directed to make over possession of the wakf property and the wakf funds to the said Plaintiff as mutwalli after deducting his commission, costs, charges and expenses. Costs of the Plaintiff as also of the Commissioner of Wakfs, of the appeal, as also of the trial will come out of the wakf estate.

A.N. Ray, J.

I agree.