1. Dispute regarding the applicability of the Hyderabad Endowment Regulation and the Wakf Act 1954 to a trust created for charitable purposes without religious distinction. (Para 1 , 3 , 6 )
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1962 Supreme(SC) 142
SUPREME COURT OF INDIA
9th April, 1962
B.P. SINHA, C.J.I., P.B. GAJENDRAGADKAR, K.N. WANCHOO, N. RAJAGOPALA AYYANGAR AND T.L. VENKATARAMA AYYAR, JJ.
Nawab Zain Yar Jung (since deceased) and others, Appellants
Versus
Director of Endowments and another, Respondents.
Civil Appeal No. l09 of 1961.
Advocate appeared
Mr. M. C. Setalvad, Attorney-General for India, Mr. C.K.Daphtary, Solicitor-General of India and Mr. A. V. Viswanatha Sastri, Senior Advocate (M/s Anwarullah Pasha and S. Ranganathan, Advocates and M/s. J. B. Dadachanji, O. C. Mathur and Ravinder Narain, Advocates of M/s. J.B.Dadachanji and Co. with them), for Appellants; Mr. D.Narasaraju, Advocate General for the State of Andhra Pradesh Mr.G.R.Ekbote and Mrs. D. Prasanna Kumari Advocates, and M/s. D. Venkatappayya Sastri and P. D. Menon, Advocates with him), for Respondents (Nos. 1 and 2); Mr. G. S. Pathak, Senior Advocate (M.s, S.M. Dubash and V.J. Merchant, Advocates of M/s. Gagrat and Co. with him) for Respondent No. 3.
Advocates:
A.V.VISHWANATHA SASTRI, ANVARLALLA PASHA, C.K.DAFTARY, D.NARASARAJU, D.PRASANNA KUMARI, D.VENKATAPPAIAH SASTRY, G.R.EKBOTE, G.S.PATHAK, GAGRAT JANEDRA LAL, J.B.DADACHAN, M.C.SETALVAD, O.C.MATHUR, P.D.MENON, Ravindra Narayan, S.M.DUBASH, S.Ranganathan, V.J.MERCHANT
A.V.VISHWANATHA SASTRI, ANVARLALLA PASHA, C.K.DAFTARY, D.NARASARAJU, D.PRASANNA KUMARI, D.VENKATAPPAIAH SASTRY, G.R.EKBOTE, G.S.PATHAK, GAGRAT JANEDRA LAL, J.B.DADACHAN, M.C.SETALVAD, O.C.MATHUR, P.D.MENON, Ravindra Narayan, S.M.DUBASH, S.Ranganathan, V.J.MERCHANT
A trust created by a person professing Islam for charitable purposes "without distinction of religion, caste or creed" is a public charitable trust and not a "wakf," as a wakf must be dedicated to purposes recognized by Muslim law as pious, religious, or charitable.
Headnote:(A) Wakf Act, 1954 - Sections 3(1) and 28 - Part B States (Laws) Act, 1951 - Section 6 - Constitution - Articles 14, 19 and 31 - Indian Trusts Act, 1882 - Charitable Endowments Act, 1890 - Charitable and Religious Trusts Act, 1920 - Civil Procedure Code - Section 92 - State Endowment Regulation.
(B) Wakf - Defined as a permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by Muslim law as pious, religious or charitable (Para 9).
(C) Distinction between Wakf and Trust - A wakf involves the transfer of ownership to the Almighty, where the manager has no right in the property. This differs fundamentally from a trust under English law where property is vested in trustees (Paras 11 and 12).
(D) Secular Trusts - A person professing Islam is not precluded from creating a public, religious or charitable trust in a non-religious secular sense which does not conform to the conventional notion of a wakf (Para 13).
Facts of the case:
Trustees of a trust created by a deed challenged a notice to register the trust under a state endowment regulation, contending the regulation was repealed by a central act. Subsequently, a regulatory board registered the trust as a wakf under the relevant act, which was challenged by the state government. The court had to determine the nature of the trust to decide the applicability of the act.
Findings of Court:
The court found that the trust deed provided for the relief of the poor and maintenance of religious institutions "without distinction of religion, caste or creed." It further noted that the use of terms such as "Settlor" and "Trustees" and the vesting of legal title in the trustees were inconsistent with the concept of a wakf.
Issues: Whether the trust created by the deed is a "wakf" within the meaning of the relevant act, and whether the registration of the trust under the said act is valid.
Ratio Decidendi: For a trust to be a wakf, it must be dedicated to purposes recognized by Muslim law as pious, religious, or charitable. A trust created for charitable purposes without distinction of religion, caste, or creed is a public charitable trust and not a wakf, as such a broad purpose transgresses the limits prescribed by Muslim law for a wakf.
Result: The court found that the trust's purposes transgressed the limits prescribed for a wakf.
Legal Category Hierarchy
Table of Contents
2. Whether the trust constitutes a wakf under the Wakf Act 1954 or a secular public charitable trust, and whether the Hyderabad Endowment Regulation was repealed. (Para 3 , 4 , 15 , 16 )
3. A wakf requires dedication for purposes recognized by Muslim law; a trust for charitable purposes without distinction of religion is a secular public charitable trust. (Para 9 , 10 , 11 , 12 , 17 )
4. A trust created for charitable purposes without distinction of religion, caste, or creed does not constitute a wakf under the Wakf Act 1954. (Para 17 )
5. What is the definition of a wakf under the Wakf Act 1954?
A wakf is a permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognized by Muslim law as pious, religious, or charitable. (Para 9 )
6. How does a wakf differ from a trust under English law?
In a wakf, ownership is transferred to the Almighty and the manager (mutawlli) has no right in the property, whereas in English law, legal title vests in trustees. (Para 12 )
7. Can a person professing Islam create a secular public charitable trust?
Yes, a follower of Islam is not precluded from creating a public, religious, or charitable trust that does not conform to the conventional notion of a wakf and is secular in nature. (Para 13 )
8. Does a trust created for charitable purposes without distinction of religion qualify as a wakf?
No, a trust created for charitable purposes without distinction of religion, caste, or creed transgresses the limits of a wakf, as it is not restricted to purposes recognized by Muslim law. (Para 17 )
Judgment
GAJENURAGADKAR, J . : This appeal is directed against the order passed by the Andhra High Court dismissing an application for a writ filed by the appellants in that Court. The four appellants are the Trustees appointed by the Nizam of Hyderabad by a Trust-deed executed by him on June 14, 1954. On the 2nd March, 1959, respondent No. 1 who is the Director of Endowments and Joint Secretary, Board of Revenue, served a notice on the appellants calling upon them inter alia, to register the said Trust under the Hyderabad Endowment Regulation 1348-F (1939) and to render accounts of the same from the date of its inception to the date of the notice within a week. The appellants disputed the authority, of respondent No. 1 to issue the said notice and urged that the trust was not governed by the said Regulation. Thereupon, the first respondent issued an order on March 23, 1959 and in pursuance of it, sealed the Pay office of the said Trust. Subsequently, on the 25th March, 1959, the said seal was removed in pursuance of the order issued by the second respondent, the Government of Andhra Pradesh. The appellants then were called upon to produce their books of accounts in order that the first respondent may scrutinise them and ascertain all the relevant facts in respect of the Trust as required by R. 8 of the Rules framed under the said Regulation. The appellants were also directed not to operate upon the banks with which the moneys of the Trust were deposited and not to spend any sum on the objects of the Trust until further orders.
2. On March 24, 1959, appellants 1 to 3 filed the present writ petition and grayed inter alia that a writ of Prohibition and Certiorari or other writ or appropriate order or direction should be issued in respect of the notice served on them by the 1st respondent on March 2, 1959 and his subsequent order of March 23, 1959. The 4th appellant was subsequently appointed an additional trustee and was thereafter added as a petitioner of the said petition on October 12,1959.
3. In their writ petition, the appellants alleged that the said Regulation had ceased to be operative in Hyderabad by reason of S. 6 of Part B States {Laws) Act 1951 (No. III of 1951) which had been extended to Hyderabad as from April 1, 1951. S. 6 of the said Act provides that if Immediately before the appointed day, there was in force in any Part B State any law corresponding to any of the Acts or ordinances now extended to that State, that shall, save as otherwise expressly provided, stand repealed. Amongst the laws extended to Hyderabad by the said Act were the Indian Trusts Act, 1882, Charitable Endowments Act (VI of 1890) and Charitable and Religious Trusts Act (XIV of 1920). Subsequently, by Central Act II of 1951, the Civil Procedure Code was made applicable to Hyderabad and S. 92 of the said Code thus applied to proceedings contemplated by it. The appellants urged that the aforesaid laws which were thus extended to Hyderabad corresponded to the Hyderabad Endowments Regulation and so, by virtue of the provisions of S. 6 of the Part B States (Laws) Act, the said Regulation stood repealed as from April 1, 1951. According to the appellants, the said Regulation and the Rules framed thereunder were ultra vires also for the reason that they were violative of the fundamental rights guaranteed by Arts. 14,19 and 31 of the Constitution. It is broadly on these grounds that the appellants based their claim for an appropriate writ against both the respondents.
4. On the other hand, the respondents contended that the Regulation and the Rules framed thereunder were not co-extensive with the provisions of the Acts which had been extended to Hyderabad by the Part B States (Laws) Act and so, S. 6 of the Act was inapplicable to them. The respondents also pleaded that the said Regulation and the Rules did not contravene any of the fundamental rights guaranteed by Part 111 of the Constitution. As to the orders issued by respondent No. 1, it was the respon
