MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH YUSUF BHAI CHAWLA & ORS.

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the State Government may, by notification in the Official Gazette, A establish a Board of Auqaf each for Sunni auqaf and for Shia auqaf under such names as may be specified in the notification. (2A) Where a Board of Waqf is established under sub-section (2) of section 13, in the case of Shia waqf, the Members shall belong to the Shia Muslim and in the case of Sunni waqf, the Members B shall belong to the Sunni Muslim. (3) The Board shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to such conditions and restrictions as may be prescribed and shall by the said name C sue and be sued.”

85Copy pinpoint85. We must indeed refer to Section 14 which deals with the composition of Board. It reads as under: “14. Composition of Board. — (1) The Board for a State and the National Capital Territory of Delhi] shall consist of— D (a) a Chairperson; (b) one and not more than two members, as the State Government may think fit, to be elected from each of the electoral colleges consisting of— E (i) Muslim Members of Parliament from the State or, as the case may be, the National Capital Territory of Delhi; (ii) Muslim Members of the State Legislature; (iii) Muslim members of the Bar Council of the concerned State or Union territory: Provided that in case there is no F Muslim member of the Bar Council of a State or a Union territory, the State Government or the Union territory administration, as the case may be, may nominate any senior Muslim advocate from that State or the Union territory, and (iv) mutawallis of the auqaf having an annual income of G rupees one lakh and above. Explanation I.—For the removal of doubts, it is hereby declared that the members from categories mentioned in sub-clauses (i) to (iv), shall be elected from the electoral college constituted for each category. H

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A Explanation II.—For the removal of doubts it is hereby declared that in case a Muslim member ceases to be a Member of Parliament from the State or National Capital Territory of Delhi as referred to in sub-clause (i) of clause (b) or ceases to be a Member of the State Legislative Assembly as required under sub-clause (ii) of clause (b), B such member shall be deemed to have vacated the office of the member of the Board for the State or National Capital Territory of Delhi, as the case may be, from the date from which such member ceased to be a Member of Parliament from the State National Capital Territory of Delhi, or a C Member of the State Legislative Assembly, as the case may be; (c) one person from amongst Muslims, who has professional experience in town planning or business management, social work, finance or revenue, agriculture and development activities, D to be nominated by the State Government; (d) one person each from amongst Muslims, to be nominated by the State Government from recognised scholars in Shia and Sunni Islamic Theology; (e) one person from amongst Muslims, to be nominated by the E State Government from amongst the officers of the State Government not below the rank of Joint Secretary to the State Government; (1A) No Minister of the Central Government or, as the case may be, a State Government, shall be elected or nominated as a member of the Board: Provided that in case of a Union territory, the Board shall consist of not less than five and not more than seven members to be appointed by the Central Government from categories specified under sub-clauses (i) to (iv) of clause (b) or clauses (c) to (e) in sub-section (1): Provided further that at least two Members appointed on the Board shall be women: Provided also that in every case where the system of mutawalli exists, there shall be one mutawalli as the member of the Board. H

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(2) Election of the members specified in clause (b) of sub-section A (1) shall be held in accordance with the system of proportional representation by means of a single transferable vote, in such manner as may be prescribed: Provided that where the number of Muslim Members of Parliament, the State Legislature or the State Bar Council, as the case may B be, is only one, such Muslim Member shall be declared to have been elected on the Board: Provided further that where there are no Muslim Members in any of the categories mentioned in sub-clauses (i) to (iii) of clause (b) of sub-section (1) the ex-Muslim Members of Parliament, the C State Legislature or ex-member of the State Bar Council, as the case may be, shall constitute the electoral college. (3) Notwithstanding anything contained in this section, where the State Government is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in sub-clauses (i) to (iii) of clause (b) of sub-section (1), the State Government may nominate such persons as the members of the Board as it deems fit. (4) The number of elected members of the Board shall, at all times, be more than the nominated members of the Board except as provided under sub-section (3). (5) Xxx xxx xxx (6) In determining the number of Shia members or Sunni members of the Board, the State Government shall have regard to the number and value of Shia auqaf and Sunni auqaf to be administered by the Board and appointment of the members shall be made, so far as may be, in accordance with such determination. (7) * * * * * (8) Whenever the Board is constituted or reconstituted, the members of the Board present at a meeting convened for the purpose shall elect one from amongst themselves as the Chairperson of the Board. (9) The members of the Board shall be appointed by the State Government by notification in the Official Gazette.” H

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86Copy pinpoint86. Section 15 provides that the Members of Board shall hold office for a period 5 years, as it stood, and the words ‘from the date of notification referred to in sub-Section (9) of Section 14" was inserted by Act 27 of 2013.

87Copy pinpoint87. Section 16 enumerates various disqualifications to be members B of the Board. Section 17 deals with the meetings of the Board. Section 19 provides for resignation of chairperson and Members. The Chairperson or a Member can be removed under Section 20. Section 22 is significant as will be revealed later on. It reads as follows: “22. Vacancies, etc., not to invalidate proceedings of the C Board.— No act or proceeding of the Board shall be invalid by reason only of the existence of any vacancy amongst its member or any defect in the constitution thereof.”

88Copy pinpoint88. Section 32 provides for powers and functions of the Board D and we will dwell upon it when it becomes appropriate.

89Copy pinpoint89. Section 36 falls under chapter V and deals with registration of wakfs. Section 39 (1) must be referred to as a prelude to the scope of Section 40, which latter provision is, parimateria with Section 27 of the Wakf Act, 1954. Section 39 inter alia reads as under: E “39. Powers of Board in relation to auqaf which have ceased to exist. — (1) The Board shall, if it is satisfied that the objects or any part thereof, of a waqf have ceased to exist, whether such cesser took place before or after the commencement of this Act, cause F an inquiry to be held by the Chief Executive Officer, in the prescribed manner, to ascertain the properties and funds pertaining to such waqf.”

90Copy pinpoint90. Section 40 reads as follows: G “40. Decision if a property is wakf property. — (1) The Board may itself collect information regarding any property which it has reason to believe to be waqf property and if any question arises whether a particular property is waqf property or not or whether a waqf is a Sunni waqf or a Shia waqf, it may, H after making such inquiry as it may deem fit, decide the question.

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(2) The decision of the Board on a question under sub-section (1) A shall, unless revoked or modified by the Tribunal, be final. (3) Where the Board has any reason to believe that any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 (2 of 1882) or under the Societies Registration Act, 1860 (21 of 1860) or under any other Act, is waqf property, the B Board may notwithstanding anything contained in such Act, hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is waqf property, call upon the trust or society, as the case may be, either to register such property under this Act as waqf property or show cause why such property should not be so registered: Provided that in all such cases, notice of the action proposed to be taken under this sub-section shall be given to the authority by whom the trust or society had been registered. (4) The Board shall, after duly considering such cause as may be shown in pursuance of notice issued under sub-section (3), pass such orders as it may think fit and the order so made by the Board, shall be final, unless it is revoked or modified by a Tribunal.”

91Copy pinpoint91. Under Section 41, the Board may compel a Muttawalli to apply for registration of a wakf or to supply any information or may itself cause the wakf to be registered or may at any time amend the register of auqaf. Section 43 is also crucial for appreciating the controversy before us. Section 43 reads as under: “43. Auqaf registered before the commencement of this Act deemed to be registered. — F Notwithstanding anything contained in this Chapter, where any waqf has been registered before the commencement of this Act, under any law for the time being in force, it shall not be necessary to register the 1 [waqf] under the provisions of this Act and any such registration made before such commencement shall be deemed to be a registration made under this Act.” G

92Copy pinpoint92. Section 51 deals with alienation of wakf property. It reads as under: “51. Alienation of wakf property without sanction of Board to be void. — H

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A (1) Notwithstanding anything contained in the waqf deed, any lease of any immovable property which is waqf property, shall be void unless such lease is effected with the prior sanction of the Board: Provided that no mosque, dargah, khanqah, graveyard, or imambara shall be leased except any unused graveyards in the States of Punjab, Haryana and Himachal Pradesh where such graveyard has been leased out before the date of commencement of the Wakf (Amendment) Act, 2013 (27 of 2013). (1A) Any sale, gift, exchange, mortgage or transfer of waqf property shall be void ab initio: Provided that in case the Board is satisfied that any waqf property may be developed for the purposes of the Act, it may, after recording reasons in writing, take up the development of such property through such agency and in such manner as the Board may determine and move a resolution containing recommendation of development of such waqf property, which shall be passed by a majority of two-thirds of the total membership of the Board: Provided further that nothing contained in this sub-section shall affect any acquisition of waqf properties for a public purpose under the Land Acquisition Act, 1894 (1 of 1894) or any other law relating to acquisition of land if such acquisition is made in consultation with the Board: Provided also that— E (a) the acquisition shall not be in contravention of the Places of Public Worship (Special Provisions) Act, 1991 (42 of 1991); (b) the purpose for which the land is being acquired shall be undisputedly for a public purpose; F (c) no alternative land is available which shall be considered as more or less suitable for that purpose; and (d) to safeguard adequately the interest and objective of the waqf, the compensation shall be at the prevailing market value or a suitable land with reasonable solatium in lieu of the acquired G property.”

93Copy pinpoint93. Section 52 provides for power of recovery of wakf property transferred in contravention of Section 51.

94Copy pinpoint94. Section 97 relied upon by Shri Y.H. Mucchawala, learned Senior Counsel, reads as follows: H

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“97. Directions by State Government. — A Subject to any directions issued by the Central Government under section 96, the State Government may, from time to time, give to the Board such general or special directions as the State Government thinks fit and in the performance of its functions, the Board shall comply with such directions: B Provided that the State Government shall not issue any direction being contrary to any waqf deed or any usage; practice or custom of the waqf.”

95Copy pinpoint95. Section 102 deals with special provisions for reorganisation of certain Boards and Section 103 deals again with special provisions for C establishment of Board for part of a State. Section 104 provides for donation made by a non-Muslim becoming part of the wakf. It reads as follows: “104. Application of Act to properties given or donated by persons not professing Islam for support of certain waqf.— D Notwithstanding anything contained in this Act where any movable or immovable property has been given or donated by any person not professing Islam for the support of a waqf being— (a) a mosque, idgah, imambara, dargah, khangah or a maqbara; E (b) a Muslim graveyard; (c) a choultry or a musafirkhana, then such property shall be deemed to be comprised in that waqf and be alt in the same manner as the waqf in which it is so comprised.” F

96Copy pinpoint96. Section 104A inserted by Act 27 of 2013 prohibits sale, gift, exchange, mortgage or transfer of wakf property, movable or immovable to any other person.This is notwithstanding anything contained in the Act itself or any other law for the time being in force. Section 104B deals with restoration of wakf property in occupation of the Government G to the wakf Board. Lastly, we may only notice Section 112 since it deals with repeal and savings. It reads as under: “112. Repeal and savings. — (1) The Wakf Act, 1954 (29 of 1954) and the Wakf (Amendment) Act, 1984 (69 of 1984) are hereby repealed. H

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A (2) Notwithstanding such repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of this Act. (3) If, immediately before the commencement of this Act, in any State, there is in force in that State, any law which corresponds to this Act that corresponding law shall stand repealed: Provided that such repeal shall not affect the previous operation of that corresponding law, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under the corresponding law shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act was in force on the day on which such things were done or action was taken.”

97Copy pinpoint97. Having set out the salient provisions of the Act, the time is ripe for us to consider the contentions of the parties. The first contention which has been raised relates to the very incorporation of the Board. D The incorporation of the Board is an essential feature for the working of the Act. This is for the reason that the Board is thefulcrum aroundwhich the whole control and regulation of the Wakfs is to take place. We have noticed the terms of Section 13. The High Court has found that the notification incorporating the appellant Board was flawed. The reason which appealed to the High Court appears to be that it was not preceded E by the survey contemplated under Section 4. To expatiate,it is the finding of the High Court that the Act contemplates the survey giving birth to data which is requisite and indispensable for the Government to legally determine the question inter alia as to whether there must be separate Sunni and Shia Boards. This is because Section 13 (2) provides that the F Government ‘may’ have Sunni Board and Shia Board if the conditions mentioned therein are present. The problem posed is the impossibility of finding out the solution to this question in the absence of relevant data. The only relevant data, according to the High Court, is what is yielded in the Survey under Section 4.

98Copy pinpoint98. We must first decide as to whether Section 13 (2) provides for an inflexible and unalterable duty with the Government to establish separate Sunni and Shia Boards if the number of Shia Wakfs is in excess of 15 per cent of all the wakfs. Still further, will the Government be duty bound to constitute separate Boards for the two sects if the income from the Shia wakfs exceeds 15 per cent of the total income of all the wakfs put together.

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99Copy pinpoint99. The use of the word ‘may’ is not to be brushed aside with contempt or without due reference to the knowledge that legislature has knowingly used it. But we do bear in mind that the word ‘may’ indeed be capable of bearing an imperative meaning. In this regard we may refer to the judgment in Baker, Re [Baker, Re, Nichols v. Baker10: ‘I think that great misconception is caused by saying that in some cases “may” means “must”. It never can mean “must”, so long as the English language retains its meaning; but it gives a power, and then it may be question in what cases, where a Judge has a power given by him by the word “may”, it becomes his duty to exercise it.’ C

100Copy pinpoint100. We may also refer to the following observations made in Julius v. Lord Bishop of Oxford11: ‘The words “it shall be lawful” are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to D do. They confer a faculty or power and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a E duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.’

101Copy pinpoint101. Bearing in mind the tests which have been laid down, we must pose the question as to whether there is anything in the object or in the context that requires of us to not give ‘may’ its ordinary meaning F which undoubtedly implies only a discretion. The search for the object in the context undoubtedly transports us to explore the difference between Sunnis and Shias.

102Copy pinpoint102. The principle sect of Muslims in India are undoubtedly Sunnis. This is by way of population. The differences between Sunni and Shia G have a historical background.Though it may be true that it may have originated on the basis of the ‘infallibility’ which is attributed to the twelvers

10 (1890) 44 Ch D 262 (CA) 11 (1880) 5 AC 214 H

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A or the 12 Imams who were found to be blessed with infallibility, over a period of time, there have been differences which have developed which go to certain aspects of the practices of the faith as well. Closer home, in the institution of Wakf itself, for instance, in the case of Muslims governed by the Hanafi School of Thought which it must be noticed is part of the Sunni faith, delivery of possession may not be an indispensable element for the creation of a valid wakf. In the case of a Shia Wakf, the position may not be the same. At the same time, we must not also lose sight of the fact that both Sunni and Shia profess Islam as their faith. As regards the core belief of the oneness of God or Almighty and Prophet Mohammad being the last Messenger and the other fundamental tenets of the faith, there is little difference between aSunni and a Shia. The Shia themselves have three branches, namely, Twelvers, Ismailis and Zaidis. With this brief background of the differences between sects of Islam, namely, Sunni and Shia, we must carry our discussion forward. In this case, the legislature itself has taken notice of the existence of two different sects of Islam, in Section 13 (2). It has proceeded to provide for two separate Boards if a percentage of Wakfs of Shias as a ratio to the total number of wakfs exists. However, we are unable to perceive Section 13 (2) as creating an inviolable duty with the Government to create Boards upon the magical figure of 15% mentioned in Section 13(2) being breached. It may be that, in a given case, it may be 16%. In E another case it may be 30% or 40%. A wide range of possibilities representing both ends of the spectrum and all that lies in-between can be imagined. We are unable to perceive any reason at all to burden the Government with the obligation to provide for separate Boards with all the expenditure and other burdens that it entails, upon Shia Wakfs or their income either exceeding the percentage indicated in Section 13(2). F

103Copy pinpoint103. There are other reasons as well, why we should not give a word importing a discretion, the force of a mandatory duty. In Section 13(1), the lawgiver has used the word ‘shall’. Not unnaturally, in its setting it bears a mandatory connotation. There must be a Board.When it comes to Section 13(2), the immediate neighbour, the choice of word G ‘may’ cannot be ordinarily set at naught. Section 4 of the Act may now be considered. Section 4 deals with the power to order a survey. The survey is to be a survey in the State. The Surveyor is to submit a report. The report is to be submitted to the Government. The Government receives the report under Section 4(3). Section 4 (3) does not speak of H any other duty on the part of the Government on receipt of the report

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except to forward it to the Wakf Board. This takes place under Section A 5 of the Act. The question which naturally arises, if a survey is to precede, the incorporation of Board then how can the Board be consulted? How can the Board then publish it, if it is not in existence before the survey? The High Court has proceeded to deal with it by stating that upon receipt of the survey report, it is not necessary to immediately send it over to the B Board. The learned counsel for the respondents would also emphasise before us that the view which would occasion a harmonious operation of all the provisions of the Act and fulfilling its object would be to adopt the following course. Upon receipt of the report by the Government under Section 4(3), the Government can constitute the Board under Section

13. When it does this, it does justice to not only the demand of Section C 13(2), but also it would comply with the mandate of Section 14(6).The argument is indeed attractive. However, we have found that the foundation of the reasoning of the High Court appears to be that Section 13(2) provides for an inexorable duty to form two separate Boards upon the percentage mentioned in Section 13 (2) being exceeded. We have already found that we are unable to cull out any such mandatory duty to form two separate Boards. This overturns the fundamental basis on which the High court has proceeded. We may notice also in this regard that Section 13(2) of the Act inter alia reads as follows: “13(2) Notwithstanding anything contained in sub-section (1), if the Shia [auqaf] in any State constitute in number more than fifteen per cent. of all the [auqaf] in the State or if the income of the properties of the Shia [auqaf] in the State constitutes more than fifteen per cent. of the total income of properties of all the 1 [auqaf] in the State, the State Government may, by notification in the Official Gazette, establish a Board of [Auqaf] each for Sunni F [auqaf] and for Shia [auqaf] under such names as may be specified in the notification”

104Copy pinpoint104. Section 32(2)(e) reads as follows: “32(2) Without prejudice to the generality of the foregoing power, G the functions of the Board shall be— (e) to direct— (i) the utilisation of the surplus income of a wakf consistent with the objects of a wakf; H

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A (ii) in what manner the income of a wakf, the objects of which are not evident from any written instrument, shall be utilized; (iii) in any case where any object of wakf has ceased to exist or has become incapable of achievement, that so much of the income of the wakf as was previously applied to that object shall be applied B to any other object, which shall be similar, or nearly similar or to the original object or for the benefit of the poor or for the purpose of promotion of knowledge and learning in the Muslim community: Provided that no direction shall be given under this clause without giving the parties affected an opportunity of being heard. Explanation—For the purposes of this clause, the powers of the C Board shall be exercised— (i) in the case of a Sunni wakf, by the Sunni members of the Board only; and (ii) in the case of a Shia wakf, by the Shia members of the Board D only: Provided that where having regard to the number of the Sunni or Shia members in the Board and other circumstances, it appears to the Board that the power should not be exercised by such members only, it may co-opt such other Muslims being Sunnis or Shias, as the case may be, as it thinks fit, to be temporary members of the Board for exercising its powers under this clause;” E This again indicates that the legislature has put in place a definite scheme and contemplated co-opting temporary Members of the two sects, where it was felt necessary.Equally, noteworthy is the fact that Section 14(5) which was omitted only under Act 27 of 2013 and was therefore relevant at the time when the High Court passed the impugned judgment provided for the appointment of one Shia member in the case of the Composite Board. Under Section 14(6) is concerned, it may be true that at the time of constitution of the Board, the number of Wakfs and the ‘value’ of the Wakfs is to be considered. What Section 14 says is with regard to establishment of Boards, the Government shall have regard to the number and value of the Shia and Sunni Wakfs to be administered by the Board. We notice Gopal Sankaranarayanan’s argument about the distinction between the word ‘value’ as used in Section 14(6) and ‘income’ employed in Section 13(2), as also Section 3(4).

105Copy pinpoint105. From the inputs available from the Act, we would think that the said provision should not in our view compel us to form the view that H

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a survey under Section 4 must in all the cases be done first, and thereafter alone the Board should be incorporated.

106Copy pinpoint106. We cannot be unmindful of the fact that the existence of the Board is vital to achieve the objects of the Act. We have noticed that Section 32 contemplates various powers and functions with the Board. Section 36 gives a right or casts a duty as it were on Wakfs to get themselves registered with the Board. Section 40 provides for another important function of the Board. It must be in this regard not be ignored that there was severe criticism about the treatment that was being meted out to the Wakfs. Mutawallis were principally at the receiving end of the criticism in the form of allegations of indiscriminate alienations and encroachment on wakf property being ignored. C

107Copy pinpoint107. In the same breath we are duty bound to express our concern and ventilate our pain at noticing that amendment took place in the year 2013 after a good 18 years of the passing of the 1995 Act under which it was provided that where Wakf Boards are not appointed, it had to be appointed within a period of one year from the coming into force of the D Amending Act 27 of 2013. This no doubt alerts us to the fact that the Act did not provide for any time limit with the Government to incorporate the Board. To this extent we acknowledge that the Act did not expressly provide for a sense of compelled urgency with the Government in incorporating the Board. But that in our view cannot detract from the E actual existence of such a need for incorporating the Board at the earliest. We are also not unmindful of the fact that the Survey Commissioner appointed in 1997 and was in the process of submitting the survey report [in fact nearly three weeks after the incorporation of the Board on 04.01.2002, the report is submitted on 31/01/2002]. But once we find that thescheme of the Act contemplates the lawful incorporation of the F Board even without receipt of the Survey report, we cannot possibly uphold the view taken by the High Court that the incorporation of the Wakf Board on 04.01.2002 was illegal as there was no previous survey.

108Copy pinpoint108. We may notice the role of the Board at the stage of section 5(2). The Board ‘examines’ the report which is sent by the Government. G We may notice and find that there is no requirement in law contrary to the contentions raised by the writ petitioners that the report furnished by the survey commissioner to the Government under Section 4(3) must be published. However, the Wakf Board is duty bound to ‘examine’ the contents of the report sent to it and it can indeed make changes which H

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A may be necessary and once the Wakf Board resolves to bring out the list, the list is to be published. This is made subject to any modification which may be made by the Tribunal under Section 6 of the Act. This in our view is essential to understand the purport of Section 13(2) of the Act as well. That is to say that when the legislature has contemplated the creation of separate Wakf Boards for Sunnis and Shias on the basis of the number of Wakfs, Shia Wakfs being in excess of 15 per cent of the total number of wakfs or the income from Shia Wakfs being in excess of 15 per cent of the total income of the Wakfs, it is the list which has been considered and published by the Wakf Board under Section 5(2) which can be material. This reinforces us in our belief that it is not necessary that a survey must precede the incorporation of the Board. In fact, the Wakf Act, 1954, was in operation in many of the States. It is not difficult to imagine that surveys would have been conducted under the previous enactment. So, it is not as if there may be absence of any material in regard to matters contemplated under Section 13(2). Not that it should form the premise of our finding, but for reassurance, we also find in the facts of this case that the survey commissioner has reported that there were 20194 Wakfs in the State. The total number of Shia Wakfs were surveyed and found to be 203.This constitutes 1.005 per cent of the total number of Wakfs. This is a figure which does not even in any way approximate to the figure of 15 per cent contemplated in Section 13(2). Another plank of the reasoning of the High Court in interfering with the incorporation of the Board was that under the Act, the Board assumes a corporate form and it is imbued with perpetual succession. The High Court reasons that once a Board is created, there is no provision for putting an end to it and giving birth to a Sunni Board and a Shia Board. We may notice in this context that it is not difficult to imagine that in a given case a State may have a composite Board to begin with. A second or subsequent surveyare contemplated and permitted under Section 4(6).Take a situation where initially the number of Shia Wakfs or the income therefrom did not justify the creation of separate boards and there is a composite Board. Can it be the law that if a second or subsequent survey, which is permitted under the law, results in the percentage of Shia Wakfs or income therefrom demands consideration of the question as to whether there should be two separate boards, it is rendered impossible by perpetual succession and corporate form the composite Boardassumed under the original incorporation? We are clearly of the view that the existence of the original Board constituted under H

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Section 13(1) cannot stand in the way of the constitution of two separate boards.Therefore, we do not think that there can be any legal hurdle in the creation of two separate boards which may be necessitated on the basis of the decision taken by the Government in the matter.

109Copy pinpoint109. The next question which we must consider relates to the constituent elements of a Wakf. From the definition which is available in the Act, the first indispensable requirement is that there must be dedication. Dedication must be by a person who is the owner of the property. Dedication must be permanent.Permanent means that it cannot be for a period of time; it must be perpetual. It must be irrevocable. While on irrevocability, we may only indicate that a Wakf can be created by a will also. But when a Wakf is created by a will it is open to the Wakif to revoke the will prior to his death. As to the effect of his death, the will, will bring into existence a Wakf but limited to 1/3 share unless the heirs otherwise agree. Save as aforesaid, a Wakf cannot be revoked. A Wakf, again meaning the property which is the subject matter of a Wakf cannot be alienated. This is subject to what we will state when we discuss the differences between a Wakf and a Trust. The object of the Wakf must be such that it is approved by the Muslim law. The object must be religious, pious or charitable and we hasten to again reiterate that it is not a concept of piety religiousness or the charitable nature in the eyes of the entire world but what is in consonance with Muslim law. There is no prescribed mode of dedication. A Wakf need not be in writing. As far as declaration is concerned, it can be inferred from conduct. A Wakf, as defined includes Wakf by user. This usually arises in public places like kabristan, Durgah, Takia. Takia means a resting place. It may not be any resting place but usually, it is associated with a graveyard. F It may be an Imambara. About Inambara we find the following discussion in Mulla Principles of Mahomedan Law (22nd Edition): “223. Imambara An imambara is an apartment in a private house or a building set apart like a private chapel for religious purposes. It is intended for the use of the owner and members of his family, G though the public may be admitted with the permission of the owner. It may be the object of a valid waqf-178. Such a waqf is a private waqf and not a public waqf nor a trust for the purposes of s.92 of the Code of Civil Procedure, but it may be proved that a particular imambara is a public waqf.” H

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110Copy pinpoint110. In such a case, that is Wakf by user, it would be a case of immemorial user. That is precisely the reason why the need to prove the dedication may be dispensed with, as the proof of it, may have been lost with the passage of time.

111Copy pinpoint111. A Wakf can be created for attaining a public utility. The public utility must, however, be for an object sanctioned by Muslim law. Subject to said conditions, irrespective of whether the beneficiaries are Muslims or not, there could be a valid Wakf. This is the result of the amendment brought to Section 3(a) of the Wakf Act, 1954 by the Amendment Act of 1964 which we have already noticed. The very same definition of Section 3(a) after the amendment in 1964 has been replicated in the Act as well.However, this would not dispense with the indispensable requirements to create a Wakf. They include the requirement of permanent dedication. Even in such Wakf, there must be a divesting of title of Wakf and vesting of title in the Almighty. Shri Gopal Sankarnarayanan, learned senior counsel, laid stress on this development viz., the amendment to the definition of the word ‘beneficiary’ in section 3(a) of Wakf Act, 1954 and on continuance of the same definition in the 1995 Act, to point out that this has the result in law of removing the very foundation of the judgment relied upon by the writ petitioners viz., the decision of this Court reported in Nawab Zain Yar Jung (Since Deceased) and Others v. Director of Endowments and Another(supra). In other words, even in the case of a public charitable trust created by a Muslim, the intention of the Muslim being to provide for activities for the general welfare and which are, therefore, secular and it emphasises the creation of the institution for human beings irrespective of religion, then the difference between a F public Trust and a Wakf would cease to exist.

112Copy pinpoint112. The time therefore is ripe now to examine the judgment of this Court in Nawab Zain Yar Jung (Since Deceased) and Others v. Director of Endowments and Another(supra). In the said case, a Bench of five learned Judges had the following facts inter alia before them. G Four appellants before the Court were trustees appointed by the Nizam of Hyderabad under a trust deed executed in 1954.They were initially confronted with proceedings under the Hyderabad Endowment Regulation 1348-F (1939). While litigation regarding the said provision was pending in this Court, developments took place in the form of H proceedings to get them registered under the Wakf Act, 1954 by the

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Wakf Board. The contention raised by the appellants therein was, it was A not a Wakf which the Court had before it but a Trust and what is more, a public charitable Trust. The Court made, we may notice, the following observations: “12. Similarly, the Muslim law relating to trusts differs fundamentally from the English law. According to Mr Ameer Ali, B “the Mohammadan law 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.’ As a result of the creation of a wakf, the right of wakif is extinguished and the ownership is transferred to the Almighty. The manager of the wakf is the mutawalli, the governor, superintendent, or curator. But in that capacity, he has no right in the property belonging to the wakf; the property is not vested in him and he is not a trustee in the legal sense”. Therefore, there is no doubt that the wakf to which the Act applies is, in essential features, different from the trust as is known to English law.”

113Copy pinpoint113. Thereafter, the Court proceeded to analyse the Trust deed.The Court dwells on the effect of the trust deed in paragraph-16, 17 and 18: E “16. It is also urged that the effect of clauses relating to the vesting of the property in the appellants as trustees should be judged in the light of the character of the property with which the document deals. The subject-matter of the trust is moveable property and unless the said property was assigned to the appellants, they would not have been able to deal with it, and that alone is the basis and the justification for the vesting provisions in the document. Therefore, too much importance should not be attached to the said provisions and 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. The pervading idea of the document is the dedication of the property to purposes recognised by Muslim law as valid for a wakf and it is only as a means to give effect to that idea that the property has been vested in the appellants. That in brief, is the main argument in support of the plea that the trust is a wakf to which the provisions of the Act apply.” H

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A “17. On the other hand, there are certain other broad features of the transaction which are wholly inconsistent with the notions of a wakf. The outstanding impression which the document 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 considerations which govern the creation of wakf. Even the clause on which Mr Pathak relies for the purpose of showing the intention to dedicate the property to Almighty makes it perfectly clear that amongst the objects for which the trust was created were included other charitable purposes without distinction of religion, caste or creed, and that obviously transgresses 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 Trusts specified in sub-clauses (a) to (c). Sub-clause D (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 considerations 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 all religious institutions not confined to any particular religion. Then look at clause 3(c)(v). It provides that the trust property can be utilised for the advancement of any other object of general public utility, particularly in the State of Hyderabad. It is true that the settlor wanted the objects of general public utility in Hyderabad to be preferred and in that sense the document discloses a desire to prefer the objects of general public utility situated within the territorial limits of Hyderabad. But it is plain that it was farthest 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 H

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of the trust disclosed by these provisions is plainly inconsistent A 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.” “18. It is true that a large number of provisions contained in the document are consistent with the view that the document creates B a wakf as much as they are consistent with the view that it creates a public charitable trust as distinguished from wakf. It is, however, patent that there are some clause which are inconsistent with the first view, whereas with the latter view all the clauses are consistent. In other words, if the construction for which the Board contends is accepted, some clauses would be defeated, whereas if the construction for which the respondents contend is upheld, all the clauses in the document become effective. In our opinion, it is an elementary rule of construction that if two constructions are reasonably possible, the one which gives effect to all the clauses of the document must be preferred to that which defeats some of the clauses. It is not in dispute that if the document is held to be a wakf, the directions in the document that charitable purposes should be selected without distinction of religion, caste or creed, would obviously be defeated and that undoubtedly supports the conclusion that the document evidences a public charitable trust and not a wakf.” E

114Copy pinpoint114. Finally, we must, however, not overlook what this Court found in the following paragraph: “20. It is in this context that the other provisions about vesting must be considered. The document calls the author of the trust as the “Settlor” and the appellants as the “Trustees “and that introduces the concept of the Trust as contemplated by English law. Clause 1 of the document specifically assigns and transfers unto the appellants all those shares and securities described in the Schedule which are the subject-matter of the trust. This clause, in terms, transfers the shares and securities to the Trustees and so, the legal title in respect of the subject-matter of the trust vests in the Trustees. The argument that the provision for vesting had to be made because the property in question is moveable property, does not carry conviction because the whole scheme of the document appears to be to vest the title in the trustees and gives H

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A them absolute discretion to use the said property and its income for any of the charitable purposes specified in the document. Thus, the vesting provision has not been adopted as a means to carry out the intention to dedicate the property to the Almighty but it constitutes the essential basis of the transaction and that is to transfer the legal title of the trust property to the trustees. In that sense, clause 14 which confers on the trustees absolute discretion to deal with the property in any manner they like, as well as clauses 18 and 24 which clothe them with authority to employ servants in their uncontrolled discretion and to appoint a Committee for management of the Trust, become more easily intelligible. In this connection, we may also notice the fact that the appointment of non-Muslims as trustees which is prohibited by the Act, is an indication that the Settlor did not regard the trust as falling within the said statutory prohibition; likewise, the scheme of management of the trust which the trustees are given liberty to adopt in administering the trust, is completely free from the regulations based on Muslim law which the relevant sections of the Act have prescribed. These several features of the trust support the conclusion that the trust is not a wakf and does not fall within the provisions of the Act. We have carefully considered all the relevant provisions of the document and we are satisfied that on a fair and reasonable construction, the document must be held to have created a trust for public charitable purposes, some of which are outside the limits of the wakf and so, the conclusion is inescapable that the trust created is not a wakf but a secular comprehensive public charitable trust. In that view of the matter, Section 3(1) of the Act cannot apply to the trust and its registration under Section 28 is invalid and inoperative.”

115Copy pinpoint115. Therefore, this was a case where there was a document which was styled as a trust deed.The trust purported to provide for relief to the poor particularly in the State of Hyderabad. It contemplated maintenance and support to religious institutions otherwise for advancement of religion particularly in the State of Hyderabad. Most importantly, it was made clear that towards the said intent that the benefit of the clause was not to be restricted to any particular religion. The other clauses also sought to provide relief on a secular basis. It was intended to cater to the inhabitants of Hyderabad in particular without any regard to religion. We are aware of the fact that at the time when

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the Court considered the case the prevailing definition of beneficiary was what was contained in Section 3(a) in its unamended form. In other words, what this Court considered was the definition of beneficiary in Section 3(a) which ended up with the injunction that the beneficiary must be a member of the Muslim community. It is after this judgment that in the year 1964 as we have noticed by the Amendment Act that the words established‘for the benefit of the Muslim community’ were substituted with the words ‘for purposes sanctioned by the Muslim law’.

116Copy pinpoint116. This judgment has also been followed by this Court in the decision reported in Mohd. Khasimv. Mohd. Dastagir and Others(supra). Therein, this Court held: C “31. The aforesaid directions run contrary to the concept of wakf and the more appropriate view appears to be that the executant intended to create a simple English trust. Although, in order to create a valid wakf it is not necessary to use the term “wakf” in the document in question, except for providing for the performance of certain religious ceremonies, pious and charitable duties, there D is no mention that the dedicator had ever intended that the properties forming the subject-matter of the trust should constitute a wakf. The executant appears to have deliberately used the expression “trustee” and not “Mutwalli” which would have ended the controversy that has now arisen.” E “32. The law is quite clear that there is no bar to a Mohammedan creating a simple English trust. It is not always necessary that in order to make a settlement of his properties, a Mohammedan has always to create a wakf. In fact, the said view has been expressed in a Division Bench decision of the Madras High Court in F Kassimiah Charities Rajagiri v. Secy., Madras State Wakf Board [AIR 1964 Mad 18] . In the said case, while confronted with a similar question, the Division Bench observed that a Muslim can endow properties to charities either by adopting his favourite mode of creating a wakf or by endowing property conforming to the law of trusts. The question whether a particular endowment G amounts to a wakf under the Mohammedan law or to a trust as recognised by modern jurisprudence, will have to be decided primarily on a true construction of the document establishing the charity. However, it has also been stated in the said decision that vesting of a power of alienation by way of exchange or sale under H

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A the document creating wakf is not inconsistent with the document constituting a wakf under the Muslim law. A dedication to a wakf will not, therefore, cease to be such merely because a power is reserved in the Mutwalli to exchange the wakf lands with other lands or to sell them and purchase other lands so that the lands so taken in exchange or by purchase, might become the subject of B the wakf.”

117Copy pinpoint117. In the later judgment, the Court has purported to place reliance on the judgment of the High Court of Madras reported in The Kassimiah Charities, Rajagiri represented by its hereditary trustee Sri. R.E.M.S. Abdul Hamid v. The Madras State Wakf Board, represented by its C Secretary AIR 1964 Madras 18. Therefore, it is true as contended by Dr.Singhvi, learned senior counsel, and also Shri Harish Salve, learned senior counsel that this Court has maintained a distinction between a public Trust and a Wakf. The view taken by this Court has been that while it is open to a Muslim to create a Wakf and ordinarily, there would be the prospect of a Reward for dedicating property by way of Wakf, it would be entirely left to a Muslim to take a decision as to whether he should adopt the device provided by an EnglishTrust or make the familiar dedication by way of Wakf. It may be also true that there is merit in the contention of the writ petitioners, that Article 25 provides a choice as to the manner in which a person may exercise his rights viz., as to whether he should resort to creating a Wakf or a Trust.

118Copy pinpoint118. What we are called upon to decide is whether this position of law has in any manner been altered by the amendment to Section 3(a) of the Act. F Here we may also refer to what is a public Trust and the conditions which have been projected in the submissions of Dr. Singhvi in particular qua a Wakf. The Indian Trusts Act, 1882 deals with private Trusts. Section 1 of the 1882 Act reads as follows: G “1. Short title. —This Act may be called the Indian Trusts Act, 1882: Commencement. —and it shall come into force on the first day of March, 1882. Local extent. — It extends to the whole of India except the State H of Jammu and Kashmir] and the Andaman and Nicobar Islands;

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but the Central Government may, from time to time, by notification in the Official Gazette, extend it to the, Andaman and Nicobar Islands or to any part thereof. Savings. —But nothing herein contained affects the rules of Muhammadan law as to waqf, or the mutual relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious or charitable endowments, or to trusts to distribute prizes taken in war among the captors; and nothing in the second Chapter of this Act applies to trusts created before the said day.”

119Copy pinpoint119. It is, therefore, clear that nothing in the Trust Act would apply to the Wakf. Nor would the provisions of the Trust Act as such apply to public or private religious or charitable Trusts.

120Copy pinpoint120. We may at this stage explore the law as it obtains in England in relation to public charities. The leading work on charities is Tudor on Charities (8th Edition). We deem it appropriate only to refer to certain aspects. The prevailing law as we understand in England is the Charities Act, 1993. We may refer to the connotation of the expression ‘charity’ and how it has been understood by the learned author at page 1: “For the purposes of the Charities Act 1993, “charity” means “any institution, corporate or not, which is established for charitable purposes and is subject to the control of the High Court in the exercise of the court’s jurisdiction with respect to charities”; “institution” includes any trust or undertaking, and “charitable purposes” means “purposes which are exclusively charitable according to the law of England and Wales.” The essential elements for charitable status have been discussed under the same heading at page 2: “Although there is no one definition of charity, it is generally accepted that before any institution can be accepted as charitable three conditions must be satisfied. First, the purposes of the institution must be within the spirit and intendment of the preamble to the Charitable Uses Act 1601. Secondly, the institution must exist for the benefit of the public and, thirdly, it must be exclusively charitable.” It may be noticed that the development of law relating to charity is traced to the Charitable Uses Act 1601 which is called the Statute of H

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A Elizabeth I. Therein, as we have noticed the law, the preamble of the Act of 1601 assumes significance. We think it is appropriate to refer to the samementioned at pages 2 and 3. “The jurisdiction of the Court of Chancery and of its successor, the High Court of Justice, in respect of charities and charitable B trusts is a separate head of equity, and charity law is founded less upon statute than upon the principles evolved by those courts and embodied in case law. It has, however, long been the practice of the courts to look for guidance as to what purposes are charitable to the preamble to the Charitable Uses Act 1601 (commonly referred to as “the Statute of Elizabeth I”), which lists as charitable: C “The relief of aged, impotent, and poor people; the maintenance of sick and maimed soldiers and mariners, schools of learning, free schools and scholars of universities; the repair of bridges, havens, causeways, churches, sea banks and highways; the education and preferment of orphans; the relief, stock or D maintenance of houses of correction; marriages of poor maids; supportation, aid and help of young tradesmen, handicraftsmen and persons decayed; the relief or redemption of prisoners or captives and the aid or ease of any poor inhabitants concerning payments of fifteens, setting out of soldiers, and other taxes.” E It is stated therein that a trust “called to be charitable must have objects which are exclusively charitable.” It is stated, “In four cases, the existence of a non-charitable purpose will not be fatal to charitable status for the relevant body”. We need not be detained by the four cases as such. F

121Copy pinpoint121. We may also notice the oft-quoted enunciation of the four heads by Lord Macnaghten in the case of Income Tax Special Purposes Commissioners v. Pemsel(1891) A.C. 531, 583. The four heads have been classified as follows: (1) The relief of poverty; G (2) the advancement of education; (3) The advancement of religion; (4) Other purposes beneficial to the community not falling under any of the preceding heads. H

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122Copy pinpoint122. We may also notice as regards the fourth head, the following discussion: “On the other hand, Lord Macnaghten said that trusts falling under the fourth head “are not the less charitable in the eye of the law, because incidentally they benefit the rich as well as the poor, as indeed every charity that deserves the name must do either directly or indirectly. …”

123Copy pinpoint123. As regards the requirement of perpetuity in regard to a charitable trust, since we found a contention raised in the submissions of Dr. Singhvi that a charitable trust need not be perpetual, we find the following discussion under the head Duration: C “A Charitable trust may be made to endure for any period which the author of the trust may desire. It may therefore be created for the application of the income in perpetuity to the charitable purpose, or it may be so framed as to require the immediate distribution of the capital, or the exhaustion of capital and income, during a limited or indefinite period. This exception to the rule that a trust for the application of income for an indefinite period is void as tending to a perpetuity is well established. It is founded upon grounds of public policy, and is essential to the useful existence of charitable trusts. But to qualify for the benefit of the exemption from the rule against perpetuities, a trust must be charitable within the legal meaning of that word. Thus, a perpetual trust for the repair of a tomb, not forming part of the fabric of a church, or for any other object or any institution or society not of a charitable character, is void. Similarly, a gift in perpetuity of the income of a legacy, for the benefit of individuals answering a certain description, without any reference to age or poverty, is likewise void. There is no escape from the dilemma that a perpetual trust must be either charitable, or void as tending to a perpetuity. The rule against perpetual duration cannot be evaded by making a charity the trustee. Thus, a condition attached to a charitable gift, constituting a trust in favour of objects not charitable, as, for instance, that the donor’s tomb should be repaired forever out of the trust funds, or that the charity should grant a lease to private individuals ninety-five years hence, or a lease for ever to the testator’s relatives, is void.” H

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124Copy pinpoint124. In regard to powers and duties of Charity Trustees, it is stated as follows: “The powers and duties of charity trustees, as defined in section 97 of the Charities Act 1993 as those persons having the general control and management of the administration of a charity, are B governed by the legal structure adopted by the charity, the terms of the individual governing instrument and the relevant statutory provisions. …”

125Copy pinpoint125. The concept of a public charity as understood in England is to be contrasted with the concept of a Trust in the background of a C public religious trust as understood in India. We turn to oft-quoted decision of the Privy Council reported in Vidya Varuthi Thirtha Swamigalv. Baluswami Ayyar and others12: “It is also to be remembered that a “trust” in the sense in which the expression is used in English law, is unknown in the Hindu D System, pure and simple (J. G. Ghose, “Hindu Law,” p. 276). Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind, and for all purposes considered meritorious in the Hindu social and religious system; to brahmans, goswamis, sanyasis, etc. When the gift was to a holy person, it carried with it in terms or by usage and custom certain obligations. Under the Hindu law the image of a deity of the Hindu pantheon is, as has been aptly called, a juristic entity,” vested with the capacity of receiving gifts and holding property. Religious institutions, known under different names, are regarded as possessing the same “juristic” capacity, and gifts are made to them eonomine. In many cases in Southern India, especially where the diffusion of Aryan Brahmanism was essential for bringing the Dravidian peoples under the religious rule of the Hindu system, colleges and monasteries under the names of math were founded under spiritual teachers of recognized sanctity. These men had and have ample discretion in the application of the funds of the institution, but always subject to cetrain obligations and duties, equally governed by custom and usage. When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called

12 H AIR 1922 Privy Council 123

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by whatever name, he is only the manager and custodian of the idol or the institution. In almost every case he is given the right to a part of the usufruct, the mode of enjoyment and the amount of the usufruct depending again on usage and custom. In no case was the property conveyed to or vested in him, nor is he a “trustee” in the English sense of the term, although in view of the obligations and duties resting on him, he is answerable as a trustee in the general sense for mal-administration. The conception of a trust apart from a gift was introduced in India with the establishment of Moslem rule. And it is for this reason that in many documents of later times in parts of the country where Mahommedan influence has been pre-dominant, such as C Upper India and the Carnatic, the expression wakf is used to express dedication. But the Mahommedan 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 D 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 as implies wakf, or the tenor of the document shows, as in the case of Jewan Doss Sahu v. Shah Kubeeruddin20 that a E dedication to pious or charitable purposes is meant, the right of the wakf 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 mutawalli, the governor, superintendent, or curator. In Jewan Doss Sahu’s Case21 the Judicial Committee call him “procurator.” That case related to a khankah, a Mahommedan institution analogous in many respects to a math where Hindu religious instruction is dispensed. The head of these khankhas, which exist in large numbers in India, is called a sajjadanishin. He is the teacher of religious doctrines and rules of life, and the manager of the institution and the administrator of its charities, and has in most cases a larger interest in the usufruct than an ordinary mutawalli. But neither the sajjadanishin nor the mutawalli 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.” H

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A “It was in view of this fundamental difference between the juridical conceptions on which the English law relating to trusts is based and those which form the foundations of the Hindu and the Mahommedan systems that the Indian Legislature in enacting the Indian Trusts Act (II. Of 1882) deliberately exempted from its scope the rules of law applicable to wakf and Hindu religious endowments. Sect. 1 of that Act, after declaring when it was to come into force and the areas over which it should extend “in the first instance,” lays down, “but nothing herein contained affects the rules of Mahommedan law as to wakf, or the mutual relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious or charitable endowments. . . . . “ Sect. 3 of the Act gives a definition of the word “trust” in terms familiar to English lawyers. It says:”A ‘trust’ is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner; the person who reposes or declares the confidence is called the ‘author of the trust’; the person who accepts the confidence is called the ‘trustee’; the person for whose benefit the confidence is accepted is called the ‘beneficiary’; the subject-matter of the trust is called ‘trust- E property’ or ‘trust-money’; the ‘beneficial interest’ or ‘interest’ of the beneficiary is his right against the trustee as owner of the trust-property; and the instrument, if any, by which the trust is declared is called the ‘instrument of trust.’”

126Copy pinpoint126. What is only to be noticed is that the concept of trust was not F unknown to the Muslims. In fact, as we have noticed in the discussion from Syed Ameer Ali on Muslim law, Wakf is described as a Trust. Incidentally, however, this judgment led to the amendment of Section 10 of the Limitation Act, 1963. It is apposite that we notice the case and judgment which was rendered therein which is reported in Wali Mohammed (Dead) by LRs. v. Rahmat Bee (Smt.) and Others13. G The question which arose was whether the Mutawalli of a Wakf would be a trustee. This Court after noticing the judgment of the Privy Council in Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar and others(supra), has discussed the impact it had in the following paragraphs:

H 13 (1999) 3 SCC 145

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“35. It will be seen that the main part of Section 10 states that no period of limitation applies for recovery of property from a trustee in whom the property is vested for a specific purpose, unless such a person is an assignee for valuable consideration. The Explanation further states that it shall be deemed that a person managing the property of a Hindu, Muslim or Buddhist religious or charitable endowment is to be deemed to be a trustee in whom such property has vested for a specific purpose. We shall explain these provisions in some detail.

36. In Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar [AIR 1922 PC 123 : ILR 44 Mad 831] the Privy Council held that property comprised in a Hindu or Mohammedan religious or charitable endowment was not property vested in trust for a specific purpose within the meaning of the said words in the main section. The reason was that according to the customary law, where property was dedicated to a Hindu idol or mutt or to a Mohammedan wakf, the property vested in the idol or the institution or God, as the case may be, directly and that the shebait, mahant, mutawalli or other person who was in charge of the institution was simply a manager on behalf of the institution. As Section 10 did not apply unless these persons were trustees this judgment made recovery of properties of the above trusts from donees, from these managers, rather difficult. E

37. The legislature therefore intervened and amended Section 10 for the purpose of getting over the effect of the above judgment. The Statement of Objects and Reasons to the Bill of 1929 makes this clear. It says: F “The (Civil Justice) Committee’s recommendation refers, it is understood, to the decisions of the Privy Council in Vidya Varuthi v. Baluswami [AIR 1922 PC 123 : ILR 44 Mad 831] and Abdur Rahim v. Narayan Das Aurora [(1922) 50 IA 84] which lay down that a dharmakarta, mahant or manager of a Hindu religious property or the mutawalli or sajjadanashin in G whom the management of Mohammedan religious endowment is vested, are not trustees within the meaning of the words as used in Section 10 of the Limitation Act, for the reason that the property does not vest in them. The result is that when a suit is brought against a person, not being an assignee for valuable H

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A consideration, endowments of this nature are not protected. The Committee’s recommendation is that Section 10 of the Limitation Act should be amended so as to put Hindu and Mohammedan religious endowments on the same footing as other trust funds which definitely vest in a trustee.”

127Copy pinpoint127. Thus, the Mutawalli is treated as a trustee. But would the amendment made to Section 10 of the Limitation Act, 1963 make a Mutawalli a trustee generally? Our answer is an emphatic ‘No’. This is for the reason that the change in Section 10 of the Limitation Act was effected to overcome the judgment of the Privy Council, when it held that a Mutawalli would not be a trustee and when in view of the requirement in Section 10 that the suit must be one against a person in whom the property has become vested in trust for any specific purpose and as a Mutawalli would not be a trustee in law per se, the legislature brought in the explanation. But what is striking are two features. Firstly, the change is brought by way of an Explanation. More importantly, the explanation begins with words “For the purpose of this section’ and proceeds to declare that “any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be properly vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.” Therefore, apart from it being an Explanation, it also on its very terms, limits the deeming fiction to the purpose sought to be attained in Section 10 of the Limitation Act.

128Copy pinpoint128. Dr. Singhvi, learned Senior Counsel, would list four distinguishing features of a Trust in comparison with a Wakf: F (i) A wakf is perpetual and irrevocable, whereas a trust need not be perpetual and may also be revoked under certain conditions. (ii) A wakf property is inalienable whereas a trust is free to alienate the trust property. G (iii) The founder of a wakf cannot reserve any benefit for himself, but the founder of a public trust may himself by a beneficiary. (iv) The powers of a mutawalli (manager of the wakf property) are very limited as compared to the powers of a trustee. H

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He would contend that in the case of a Wakf, the dedication must be perpetual and irrevocable. We have already noticed that this proposition is only to be accepted and save as we have noticed in the case of a Wakf by a will which is revocable during the lifetime of the maker dedication is to have effect immediately and it is not transient. The reason is that the reward is believed to be given immediately as the dedication is made. No doubt, in the case of a will, during his lifetime it is open to revoke it but otherwise a Wakf must indeed be perpetual and irrevocable.A trust need not be perpetual and can be revoked in certain conditions submits Dr. Singhvi. We have noticed the passage from Tudor on Charities which appears to suggest that the requirement of perpetuity in a Wakf may not attach itself invariably to a public charity or a public charitable trust. C It is a matter essentially to be decided on the terms of a document, if there is any.

129Copy pinpoint129. Next, it is contended that in the case of a Wakf, property is inalienable whereas in the case of a Trust, a trustee is free to alienate the trust property. Though the Trust Act is not applicable in the case of D a public, religious or charitable Trust, it would appear to be the law that the principles enshrined in the provisions can be drawn upon. Section 37 of the Indian Trusts Act, 1882, reads as follows: “37. Power to sell in lots, and either by public auction or private contract. —Where the trustee is empowered to sell any trust- E property, he may sell the same subject to prior charges or not, and either together or in lots, by public auction or private contract, and either at one time or at several times, unless the instrument of trust otherwise directs.”

130Copy pinpoint130. A perusal of Section 37 would reveal the following: F The trustee governed by the Indian Trusts Act, 1882, may effect a sale. The condition, however, is that the power of sale must be conferred by the trust deed. It all, therefore, boils down to the question as to whether there is a power with the trustee under the document in question. However, it is significant to note that Dr. Singhvi may not be G correct if the contention is that the trustee has an absolute right of sale. At least it is not so under the Bombay Public Trust Act 1950. Section 36 of the Bombay Public Trust Act declares that a sale by Trustee can be made only after ‘previous’ sanction is obtained from the Charity Commissioner.In the case of a Wakf, however, undoubtedly the principle H

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A is well entrenched and it is integral to the very concept of a Wakf, wherein, upon a dedication there is an implied transfer of the property to the Almighty, which would in law render any alienation impermissible. The property would remain inalienable. However, interestingly, we may notice the following discussion in Mulla Principles of Mahomedan law: B “207. Power of mutawalli to sell or mortgage. A mutawalli has no power, without the permission of the Court, to mortgage, sell or exchange waqf property or any part thereof, unless he is expressly empowered by the deed of waqf to do so.”

131Copy pinpoint131. However, learned author has also noted the change that has been brought about in section 51 of the Act and thereafter states as follows: “A mutawalli of a waqf although not a trustee in the true sense of the term is still bound by the various obligations of a trustee. He like a trustee or a person standing in a fiduciary capacity, cannot advance his own interests or the interests of his close relations by virtue of the position held by him. The use of the funds of the waqf for acquisition of a property by a mutawalli in the name of his wife would amount to a breach of trust and the property so acquired would be treated as waqf property.

E A mutawalli is not allowed to sell, mortgage or lease the waqf property unless he obtains permission of court which has the general powers controlling the actions of mutawalli. Save and except as recognised by any custom, the law does not favour the right to act as mutawalli becoming heritable. When the mutawalli dies and the waqif is still alive, he possesses the right to appoint another and in his absence his curator and in the absence of both, the Court appoints the successor mutawalli. Mutawalli has no ownership rights or estate in the waqf property, he holds the property as a manager for fulfilling the purpose of waqf. Even a Sajjadanashin, who has larger interest in the usufruct has no right in the property endowed.These features distinguish a mutawalli from a shebait. The elements which render shebait-ship a property, are absent in mutawalli-ship and mutawalli-ship is an office.”

132Copy pinpoint132. Therefore, whatever may have been the position prior to 1995, under the Act, a sale is absolutely prohibited. We draw support from Section 104A of the Act which, inter alia, prohibits alienation. H

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133Copy pinpoint133. It is contended by Dr. Singhvithat the founder of a Wakf A cannot reserve any benefit for himself but the founder of a public trust may become a beneficiary. Hereinagain, we may notice the following discussion in Mulla on Principles of Mahomedan Law: “192. Reservation of life interest for benefit of waqif (dedicator) B (1) Under the Hanifi law, the waqif (dedicator) may provide for his maintenance out of the income of the waqf property. He may, if he wishes, reserve even the whole income for himself for his life. On the amount of maintenance becoming not sufficient to make C both ends meet, the amount of maintenance can be increased on a suit by a beneficiary against Mutawalli. (2) Payment of waqifs debts. -Under the Hanafi law, the waqif may provide for the payment of his debts out of the income of the waqf property. D This was well established before the Wakf Validating Act, 1913, and it is now reproduced in s.3, Cl.(b) of the Act.

134Copy pinpoint134. Under the Mahommedan law, a Wakif may provide for his maintenance out of the income of the Wakf property. He may even reserve the whole income for himself or his life. A different strand of opinion has been expressed however as regards the Shia law. We find the following discussion in Mulla on Principles of Mahomedan Law at page 228: According to the Hanafi law, the settlor may reserve the usufruct of the endowed property of himself for his life. According to the Shia law a waqf is not valid unless the settlor divests himself of the ownership of the property and of everything in the nature of usufruct from the moment the waqf is created. Hence a settlor cannot, according to the law, reserve for himself a life-interest in the income or any portion thereof: Baillie, II, 218-219. It has been held by the High Court of Allahabad that if the settlor reserves the whole income for himself, the waqf is wholly void; but if he reserves a portion f the income i.e., one-third, the waqf is void as to one-third only to the corpus, but valid as to the remaining two- thirds. But in Abadi Begum v. Kaniz Zainab (AIR 1927 PC 2), the H

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A Privy Council expressed the opinion that in such a case, the waqf would be entirely void. Their Lordships approved the four conditions governing the validity of a waqf under Shia lawas set out in Baillie’s Digest, II, 218-219. These are: “(1) it must be perpetual; (2) absolute and unconditional; (3) possession must be given to the mowkoof(beneficiary) of the thing appropriated; and B (4) it must be taken entirely out of the waqif or appropriator,” The last condition has been expressed in direct and homely language by saying that the waqif must not eat out of the waqf. The case was one in which the settlor under the colour of fixing her salary as mutawalli really reserved for herself a portion of the income very much in excess of the salary fixed for future mutawallis. The case was not decided on this ground but the waqf was held to be invalid as the settlor had not parted with possession so as to comply with the third condition set out above. But though a Shia cannot provide for his own maintenance out of the waqf property he may provide for the maintenance of his family, children and dependants. This is recognised in s. (a) of the Wakf Act. But a Shia may provide for the expenses of Roza, Namaz, Haj, Ziarat, etc. to be performed after his death for his spiritual benefit. He may also reserve a life interest for a beneficiary in the usufruct of the property if the intention that the property should become waqf on the settlor’s death is clear. If the settlor is the first mutawalli he may lawfully take the remuneration of the mutawalli. The High Court of Allahabad has held that a provision that the endowment shall not take effect till the death of the settlor’s wife is valid, but this view of the law has been overruled by the F Privy council in Mt. Ali Begum v. Badr-ul-Islam Ali Khan, in which it was held that a direction that certain property should become waqf after the death of a person surviving the testator was invalid. Again, according to the Shia law, a waqf is not valid, if it G provides for the payment of personal debts of the settlor. But a provision for payment of debts charged on the estate is valid; in other words, a Shia may like a Sunni, make a valid waqf of property which is subject to a mortgage. In Syed Ali Zamin v. Syed Akbar Ali Khan (AIR 1937 PC H 127), the Judicial Committee held that the settlor has divested

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himself of all interest in the property dedicated though he had A appointed himself Mutawalli with uncontrolled powers of management. Whether he has so divested himself, is a question of construction of the waqfnama, and is not to be confounded with the question whether there has been a transfer of possession or change in the character of his own possession.” B

135Copy pinpoint135. Finally, we may take up the last distinction which is highlighted by Dr. Singhvi that it relates to the powers of the Mutawalli being very limited as compared to the powers of a Trustee. It is true that Mutawalli is essentially a manager and administrator of the property which vests in Almighty. A Trustee, on the other hand, is the person in whom the property vests. In the case of a private Trust, no doubt, as in respect of public Trust, it consists of an obligation annexed to the ownership of property and arises from out of confidence reposed in a person or persons. They are the trustees.In the case of a private Trust, there must be a written documentwhich must be registered in terms of Section 5 of the Act.In a public religious or public charitable Trust, there need not be any document as such to create a public charitable trust. The foundation, however, remains the confidence which is reposed in the Trustee/Trustees and the apparent ownership that he possesses by havinglegal ownership being vested in him/them. The most significant aspect, however, would be that in the case of a Mutawalli of a Wakf or Manager of a Wakf or other person in charge of a Wakf, he can only be the manager of the property. This distinction we must not overlook forms the subject matter of the discussion in paragraph 20 of the judgment of this Court in Nawab Zain Yar Jung (Since Deceased) and Othersv. Director of Endowments and Another(supra) which we have referred to. We have noticed that in the said case what was involved was a trust deed where property was vested with the trustee, no doubt, for the purposes mentioned therein. It is this which must indeed be the indispensable hallmark to distinguish a Trust from a Wakf. This distinction cannot be overlooked. A power of sale, being located appears incompatible with a Wakf but the same is not incongruous with a Trust. G

136Copy pinpoint136. It is true as contended by Mr. Gopal Sankarnarayanan, learned senior counsel, that with the amendment to Section 3(a) by giving a secular flavour to the definition of the word Beneficiary meaning thereby that the condition that the beneficiary must only belongto the Muslim community being removed, it hasrestored the law which it always was, H

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A viz., that in a case of a Wakf which was intended to achieve a public utility, the beneficiaries need not be confined to the members of the Muslim faith and it was indeed secular all throughout in its application which is the reason for the amendment brought about in 1964. Though the amendment was made in 1964, we would think that this was always the law. We see the following discussion in Syed Ameer Ali on B Mohammedan Law at page 274: “Another point worthy of attention in the Mussulman Law is that every trust for whatever purpose created is really and in fact for the benefit of human beings. The religious and legal system of Islam is founded essentially on the service and well-being of humanity. A dedication may be made for a mosque, - but the mosque is intended for human beings to pray in; it may be for a school, intended for the instruction of students; for khankahs, where a particular class of people congregate for religious exercises, and so forth. Every object, therefore, is intended for the spiritual, religious, moral, or material good of human beings. This is the meaning of the terse and sententious rule pronounced by the Prophet “tie up the property and leave its usufruct free for mankind.” A wakf once made for whatever object, has the effect of “detaining” the property in the custody of the Almighty, its produce along being applicable for the good of human beings. E This is the meaning of the definition given by the law officers in the case of Mohammed Sadik v. Mohammed Ali and Others, that wakf implies “the relinquishment of the proprietary right in any article of property such as land, tenements, &c., and consecrating it in such manner to the service of God that it may be of benefit to F men.” This definition was not invented by them but borrowed form the law-books, and must be read with the explanations given in them. In the Islamic system there is no such ting as a dedication “solely to the worship of God.” A dedication “solely to the worship of G God” is an unmeaning phrase in Islam. The service of man and the good of humanity constitute pre-eminently the service and worship of God. Everything which is dedicated to God is in reality for the good of mankind; and everything which is dedicated for the good of human beings, individually or collectively, is for the service of God.” H

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137Copy pinpoint137. Shri Gopal Sankarnaryanan, learned Senior Counsel, did attempt to persuade us to hold that with the amendment carried out to Section 3(a) way back in 1964 to the word ‘beneficiary’, little remains to distinguish a public Trust from a Wakf. At first blush, the argument may sound attractive. The argument is that since there can be a Wakf and the object of the wakf can be attainment of public utility and if the beneficiaries of the trust can belong to any faith and only requirement is that the object must be one which is sanctioned by Muslim law, then every public charitable Trust would be capable of being categorized as a Wakf. In other words, the argument appears to be premised on eschewing of the exterior and exploration of the very fundamentals of the transaction. The use of the word Trust by itself, it may be true cannot be decisive of the issue. The absence of the word Wakf is equally not determinative. It is a matter which must be considered with reference to the document, if any, the conduct of the parties and all other relevant aspects.

138Copy pinpoint138. In this regard, he sought to draw our attention to the judgment of the High Court of Madras reported in AIR 1973 Madras 191. It is true that in the said case, the Court has referred to the judgment in Nawab Zain Yar Jung (Since Deceased) and Othersv. Director of Endowments and Another(supra). It observes that this Court has proceeded with the matter at a time when Section 3(a) had not been amended. But we would think that even in the said case, the matter really turned on the facts before the Court. However, to do justice to Shri Gopal Sankaranarayanan, learned Senior Counsel, we may refer to the following paragraphwherein after referring to the aforesaid decision, the court held: “But the Wakf Act of 1954 has been amended by Act 34 of 1964 F under which the definition of ‘beneficiary’ and ‘wakf have been amended by including wakf sanctioned by the Muslim law as coming under the Wakf Act. In Syed Abdulla Sahib v. Madras State Wakf Board(3) Kailasam J. has held that the coming into force of Act 34 of 1964 amending the Wakf Act of 1954 will have to be taken into account and that the donation of an immoveable G pro party even though by a person not professing Islam, would be a wakf, if the other conditions are fulfilled. Thus, the definitions as amended have retrospective effect and apply to the wakf in this case. In fact, the learned advocate for the appellant did not dispute the fact that if the charitable bequest created in this case H

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A is a wakf, it would come under the Wakf Act,though the beneficiaries of the wakf may include non-Muslims.” What is, however, decisive would be that it was on facts found that the compromise decree therein did create a Wakf.

139Copy pinpoint139. Learned counsel also sought to draw support from the judgment of the learned Single Judge of the Gujarat High Court in Kachchh Wakf Board &Anr. v. Kachchh Memon Jamat&Ors. 14 . Therein, the Court has, no doubt, inter alia, referred to as follows: “50. In view of my aforesaid conclusion the appeal must succeed. C However, before parting with it, I may notice that learned Counsel for the respondent-plaintiff argued that both the courts below have come to concurrent finding that, property in question was being used for providing shelter or abode to any visitor without distinction of caste or creed and this finding alone is sufficient to negative the contention of respondents about existence of a Muslim Wakf D and consequently entitling the plaintiffs to claim relief for declaring the publication of list dated 6-5-1965 to be illegal and void and that the property in question is not a Muslim Wakf. This is so according to learned Counsel because if beneficiary of an amenity includes anybody other than Muslim, it can be anything but a Muslim Wakf. E It may be a public charity or a public trust, but beneficiary if includes non-Muslim it becomes of secular character which is not envisaged object of a Muslim Wakf. Reference was made to decision of Supreme Court in Nawab Zain Yar Jung v. Director of EndowmentsAIR 1953 SC 985 as well as Board of Muslim Wakf v. Radha Kishan(1979) 2 SCC 468 : AIR 1979 SC 289. This plea was raised apart from contending that respondents have failed to prove that property was dedicated by a Muslim and was so dedicated to almighty as to vest the same in Him. I am prima facie of the view that both the parties have laboured under common impression that if the Muslims are only users of property it be treated as a Muslim Wakf and in the process necessary material in this regard for deciding the issue about existence of Wakf, if so, its nature and beneficiary who could claim right to its benefit had also not been brought on record.

14 H 1997 SCC Online Guj 220

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62. The decisions in Nawab Zain Yar Jung (AIR 1963 SC 985) or A other contemporary decisions containing observation that beneficiary must be a member of Muslim Community has to be read in the context of definition of beneficiary in Section 3(a) of the Act of 1954 as it stood. Until it is amended by the Wakf, (Amendment) Act, 1964 w.e.f. 10-10-1964: B It reads: “beneficiary means a person or object for whose benefit a Wakf is created and includes religious, pious and charitable object and any other object of public utility ‘established for the benefit of Muslim Community’.” C

65. In this light a Musafirkhana, if its dedication is for a religious purpose like providing shelter to pilgrims or to those who are performing religious ceretnionies sanctioned by Muslim Law, may perhaps can have its beneficiaries only members of Muslim community. But if on the other hand if a property is dedicated as an amenity of general public utility or for charitable purpose to utilize its income for charitable purposes sanctioned by Muslim Law, use of such amenity may not militate against its being a Muslim Wakf. In other words unless it is made clear with what object property is dedicated, it may not be possible to decide the exact nature of dedication, even if it be presumed in favour of the appellants that it was after grant of land was made to Kamruddin, he constructed the house and that house is being used as Musafirkhana or Sarai Dharmashala, a place of abode for wayfarers. Both parties, apparently having engrossed with user of property by Muslims only have not lead any evidence on this vital aspect about ‘object of dedication of building’ of the issue. In this connection, it may also be noticed that it is not a case of lost grant and user of property, since time immemorial but grant in specific manner has been the contention of both sides, and user from that period by general public or Muslims. The pivot object with which dedication and use was being made is missing. In this connection, it is also significant to notice that according to Bhagwadgomandal word ‘Dharmashala’ and ‘Musafirkhana’ have been defined to mean one and same thing. Nothing therefore, may turn on the expression ‘Dharmashala’ in the letter of grant of land without something more. Nor actual user contrary to the H

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A object of actual dedication will affect the nature of grant, though in the absence of clear evidence about object, long user in one way or other may itself furnish some evidence of object.”

140Copy pinpoint140. Lastly, the judgment in Indian Institute of Islamic v. Delhi Wakf Board 2011 SCC OnLine Del 5567 of the High Court of Delhi B speaking through Hon’ble Mr. Justice S. Ravindra Bhat, as His Lordship then was, is also placed before us. Therein, in fact, we may only notice after considering the case law on the point which included the decision of this Court in Nawab Zain Yar Jung (Since Deceased) and Othersv. Director of Endowments and Another(supra) and the changes brought about in the law, it was inter alia held as follows: C “66. It is thus clear - from the above discussion, that for a dedication to be a wakf it is not necessary that the benefit should flow only to Muslims, or a specific section of the community; as long as the object of the dedication is the performance of a task, or function, which is considered to be charitable, under Muslim law, and the D property, asset or thing is permanently dedicated. Here, it would be essential to go into what exactly is a “permanent dedication”. The Privy Council, in one of its earlier decisions, i.eJewen Doss Sahoo v. Shah Kubeer-ood-deen ((1840) 2 MIA 390) explained the significance of the word ‘dedication’ and observed thus: E “According to the two disciples, wakf signifies the appropriation of a particular article in such a manner as subjects it to the rule 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 two disciples therefore hold appropriation to be absolute, though differing in this, that AbooYoosuf holds the appropriation to be absolute from the moment of its execution, whereas Mahomed holds it to be absolute only on the delivery of it to a mutawalli, (or procurator,) and, consequently, that it cannot be disposed of by gift or sale, and that inheritance also does not obtain with respect to it …‘Bestow the actual land itself in charity in such a manner that it shall no longer be saleable or inheritable.’”

141Copy pinpoint141. Drawing support from the judgment of this Court reported in Mohd. Khasimv. Mohd. Dastagir and Others(supra) it was found in H

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fact that what was projected as a Wakf was not a Wakf even though, it might be a valid Trust. Having noticed the facts of the judgment of the apex Court in Nawab Zain Yar Jung (Since Deceased) and Othersv. Director of Endowments and Another(supra) and as followed in Mohd. Khasimv. Mohd. Dastagir and Others(supra) and having borne in mind the change brought about in Section 3(a), we are of the clear view that the law which was declared in the decisions of this Court leaves it open to a Muslim to create a public Trust or a Wakf and it remains undisturbed.

142Copy pinpoint142. As to whether an institution is a Wakf or a public Trust is a mixed question of fact and law. This means it becomes a duty of whosoever upon whom the duty falls, to ascertain whether it is either and to carefully attend to the terms of the document by which the Trust is evidenced if there is such a document and find the facts and thereafter the law must be applied. The paramount feature which perhaps would figure in this inquiry would be the properties being vested either by a D Trust, in the case of a Trust, for a trustee to deal with the property as such.Whether there is no power of sale, or inalienabilitymay be a factor which may tilt the matter in favour of the institution being a Wakf provided other features which are indispensable are also present. It is no doubt true that the Amending Act of 1964, amending the words ‘Beneficiary’ making clear what was always the correct principle of Muslim law that fruits of a Wakf is not to be cribbed cabined and confined to the Muslim community would in the context of the object being public utility, narrow down the distinction between a trust and a wakf. In this regard, the aspect reflectedin para 17 of the judgment of this court in AIR 1963 SC 985 would indicate that the court was bearing in mind the injunction in Section 3(a) defining beneficiary in the unamended form. It does indicate that on the criteria of the unamended provisions of Section 3(a), the court found it to be not a wakf. The nomenclature and the form of the document can be indicative but not decisive. G

143Copy pinpoint143. Having held that there is a distinction between a public charitable Trust and Wakf, we must now move on to consider a more vexed issue and the controversy is this. Whether the survey which was conducted in the case under Section 4 was valid and whether the list which was published on 13.11.2003 should have been interfered with? H

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144Copy pinpoint144. It is an admitted case that the Act came into force on 01.01.1996. A person was appointed to carry out the survey by proceedings dated 01.12.1997. The surveyor was tasked to carry out the survey and he gave a report to the Government under Section 4(3) on 31.01.2002. It is also not disputed in the meantime, on 04.01.2002, the Wakf Board was incorporated. As to how a survey should be conducted under Section 4 has been subject matter of the decision of this Court in Board of Muslim Wakfs, Rajasthan v. Radha Kishan and Others(supra). It may be apposite to refer to it for the reason that though the survey in question was conducted under section 4 of the Wakf Act 1954, the provisions of Section 4 in the present Act is essentially parimateria with Section 4 of the earlier Act. Therein, the first question which arose was whether the commissioner of Wakfs appointed under Section 4 had jurisdiction to enquire and find whether a certain property is Wakf property or not when such a dispute is raised by a stranger to the Wakf. We need not be detained by the other question as it relates to the effect of Section 6 on such a person. The Court went on to hold inter alia as follows: “22-A. It is needless to stress that the whole purpose of the survey of wakf by the Commissioner of Wakfs under sub-section (1) of Section 4 is to inform the Board of Wakfs, as to the existence of the existing wakfs in a State, in order that all such wakfs should be brought under the supervision and control of the Board of Wakfs.

23. While the High Court was, in our view, right in determining the scope of sub-section (1) of Section 6 of the Act, it was clearly in error in curtailing the ambit and scope of an enquiry by the F Commissioner of Wakfs under sub-section (3) of Section 4 and that by the Board of Wakfs under Section 27 of the Act.

25. The very heading of Chapter II and the caption to Section 4 no doubt suggest that the Commissioner makes only a preliminary survey regarding existing wakfs and the list of wakfs prepared by him is published by the Board and neither the Commissioner nor the Board is required to make any enquiry regarding the character of the property. That is to say, the making of survey is only an administrative act and not a quasi-judicial Act. But, on a closer examination, it is clear that while making a survey of the existing wakfs in a State under sub-section (1) of Section 4, the