S. T. DESAI, J. : This reference under the Estate Duty Act raises a question of considerable importance and interest affecting the levy of estate duty on property which may be the subject of a wakf-al-ulad. The settlement, we have to consider, was created by Aishabai, a wealthy Memon lady who was a Hanita Mohammedan. The facts are simple and we shall only give a broad outline of the relevant facts supplementing it if occasion demands. The deed of wakf, which we shall presently examine, was made on 31-3-1951. It accords with the requirements of the statute on the subject. There is permanent dedication of property for the benefit of the poor and other purposes recognized by the Musalman law as religious, pious or a charitable purpose of a permanent character. The ultimate benefit to the charity is postponed until the extinction of the descendants of the Wakif. There is the usual provision relating to maintenance and support of the settlor during her life-time and for the maintenance and support of her family consisting of her daughter and the children of that daughter from generation to generation. Mutavalis were appointed, the settlor herself being one, and the property was conveyed and transferred to them. The property settled by the Wakifnama consisted of 12 immoveable properties of large value and a sum of Rs. 1 lac. It is the provisions for maintenance contained in the deed that have given rise to the dispute between the Revenue and those who represent the estate of Aishabai. The settlor reserved for her maintence during her life-time 62 ½ per cent of the net income, 3 1/8 per cent of the income was given to her daughter Khatizabai for her maintenance and the remaining 34 3/8 per cent was given for the maintenance of Khatizabais children, the share of each male child being double that of each female child. Clauses 5 and 6 of the deed are material and relate to reservation and dispositions after the demise of the settlor :

5. "From and after the demise of the Wakif, the Mutavalis shall out of the said 62 ½ per cent of the net income hereinabove directed to be paid to the Wakif set apart 93/8 per cent, and add the same to the said 3 1/8 per cent of the income hereinabove directed to be paid to the said Khatizabai and shall add the remaining 53 1/8 per cent to the said 34 3/8 per cent. ..... to be distributed among the children of the said Khatizabai and their descendants so that after the death of the Wakif, 12½ of the net income shall be paid to the said Khatizabai and the remaining 87 ½ per cent the net income shall be distributed among the children and descendants of the said Khatizabai in the same manner and to the same extent as hereinabove mentioned in cls. 4(b) and 4(c) hereof for the benefit of the said Khatizabai and her children and their descendants respectively.

6. From and after the death of the survivor of them the Wakif and the said Khatizabai, the whole of the net income shall be dealt with and distributed amongst the children of the said Khatizabai and their descendants in the same manner and to the same extent and in accordance with the same proportion and method of distribution as hereinabove mentioned in cl. 4(c) hereof."

Reference may briefly be made to the sum of Rs. 1 lac settled by the deed. The Mutavalis were directed to credit that sum of Rs. 1 lac to an account called "Extra-ordinary heavy repair fund account" and invest the moneys so credited in such security or securities as they may think fit. The Mutavalis would be at liberty to make use of and apply the moneys to the credit of the said account as may be required.

2. Aishabai, the settlor died on 2-8-1954. The Collector of Estate Duty included all the properties in the estate duty assessment under S. 12 of the Act. With regard to the sum of Rs. 1 lac also, he took the view that the sum was credited to an account as directed and the moneys had been invested in Government paper but the income from the investment had been enjoyed by the decea