The Wakf Act, 1995, excludes private wakfs from its ambit and the administrative control of the authorities appointed by statute under the Act except to the extent of the provision made therein for religious and charitable purposes.

( 1 ) THIS appeal arises out of an order passed by the learned single Judge on 30th August, 2000, in Originating Summons jurisdiction in Suit No. 488 of 1999, which had been filed for answers to be given to the following questions, namely, (A) Whether the demarcation of the wakf property being premises No. 33, Shakespeare Sarani, Calcutta-700071, made as above in dividing the said property in two distinctive parts, one for wakf-alal-aulad and the remaining portion for pious and religious purposes, is correct and has been made in consonance with the provisions of the wakf deed? (B) Whether the Wakf Act, 1995, is applicable for the portion of the said property divided and earmarked for wakf-alal-aulad?

( 2 ) BY his said order the learned single judge answered the first question in the negative and the second question in the affirmative.

( 3 ) APPEARING in support of the appeal, mr. Sahidullah Munshi submitted that the learned single Judge had misunderstood the scope and purport of the submissions made on behalf of the appellant, since it was not the contention of the appellant that the portion of the wakf properties which had been kept apart for secular purposes either loses its wakf character or ceases to be part of the wakf estate created under the Deed of wakf dated 22nd September, 1936, executed by Shahzadi Begum.

( 4 ) MR. Munshi submitted that the contention of the appellant/petitioner was that the portions of the wakf properties which were kept apart for secular purposes or were separated from the rest of the wakf properties and categorised as wakf-alal-aulad, were kept out of the provisions of the Wakf Act, 1995, and the control of the Board of Wakf, west Bengal. Mr. Munshi urged that the specific case of the appellant/petitioner before the learned single Judge was that by virtue of the definition of the expression wakf in Section 3 (r) (iii) of the Wakf Act, 1995, properties designated as wakf-alal-aulad stood excluded from the purview of the said Act and the administrative control of the Board of Wakf, West Bengal. The said properties continued to retain their wakf character and continued to be governed by the provisions of other enactments such as the Mussalman Wakf Validating Act, 1913; the Mussalman Wakf Validating Act. 1930; the Religious Endowments Act, 1863 and the Mussalman Wakf Act, 1923.

( 5 ) REFERRING to the definition of the expression wakf in the Bengal Wakf Act, 1934, which was in force in West Bengal till the coming into operation of the Wakf Act, 1995, mr. Munshi submitted that although a distinction had been made in respect of wakfs and wakf-alal-aulad in Sections 6 (10) and 6 (11) of the said Act, both categories of wakf were made subject to the provisions of the act and the administrative control of the commissioner of Wakfs and the Board of wakfs, West Bengal.

( 6 ) MR. Munshi submitted that while the definition of wakf and wakf-alal-aulad in the 1934 Act was an inclusive definition, the definition of "wakf in the 1995 Act was an exclusive definition, and by bringing about such charge it was clearly the intention of the Legislature to Include within the scope of the 1995 Act wakf-alal-aulad only to the extent to which the properties were dedicated for any purpose recognised by muslim Law as pious, religious or charitable. In other words, the portion of the wakf properties kept apart for secular purposes were excluded from the operation of the 1995 Act and consequently they were no longer subject to the control of the Board of Wakfs, west Bengal.

( 7 ) MR. Munshi urged that the doctrine of wakf is interwoven with the entire religious life and social economy of Muslims. The muslim Law imposes an obligation, legal or moral to provide for the upkeep and maintainable of parents, descendants and kinfolk in general and provision for ones own self is considered to be equally meritorious so that one never became a burden to society. Conflicts, however, arose amongst jurists about th