The main legal point established in the judgment is the determination of the applicability of the Mussalman Wakf Act 42 of 1923 to a wakf created in 1863, and the interpretation of the Acts in relation to the nature of the wakf and the ultimate benefit reserved.

JUDGMENT

Jack, J. - This rule was issued on the opposite party to show cause why this Court should not set aside the dismissal on a preliminary point of the petitioner's application for an order on the opposite party to file accounts under S, 3, Mussalman Wakf Act 42 of 1923. The preliminary point raised was that Act 42 of 1923 is not applicable to this wakf inasmuch as it is a wakf of the nature described in Section 3, Wakf Validating Act 6 of 1913, and is thus excluded from the operation of Act 42 of 1923 by Section 2(e) of the Act. Some of the terms of the wakf are as follows: (1) as long as the founders live they shall appropriate one-third of the proceeds of the wakf properties themselves, and apply two-thirds to other charities; (2) after their death two-thirds of the proceeds of the wakf properties shall be enjoyed by their children and the remaining one-third should go to meet the charities; and (3) in the event of non-existence of any child begotten by the founders, such a person from among their relatives as may be most nearly related to them shall be appointed mutwalli and shall get Rs. 10 a month as a salary, shall live in their dwelling house and shall appropriate the balance of the proceeds of the tanks and gardens left after defraying the expenses of persons attached to the Madrasha and Khankah.

2. The question then is whether this is a wakf coming under Act 6 of 1913 or under Act 42 of 1923. Act 6 of 1913 only applies to a wakf in which the ultimate benefit is expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character: vide Section 3(b) of the Act. It is quite clear therefore that in the present case Act 6 of 1913 has no application because the ultimate benefit is not reserved for the poor or for other charitable purposes. The ultimate benefit goes to the relative of the founders who will be appointed mutwalli. In addition to Rs. 10 as his salary, he is to live in the dwelling house and to appropriate the balance of the proceeds of the tanks and gardens left after defraying the expenses of persons attached to the Madrasha and Khankah. It is clear from this that certainly the whole of the ultimate benefit is not reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable of a permanent character.

3. The learned Judge therefore in holding that the wakf is in the nature of a wakf described in Section 3, Act 6 of 1913, is not correct. On the other hand the wakf clearly comes under the definition of a wakf contained in Act 42 of 1923. Therefore the learned Judge was not right in dismissing the application on this preliminary point. The rule is made absolute and the case sent back to the District Judge for disposal in accordance with law on the other questions which arise. We make no order as to costs of this rule.

Mitter, J.

4. This question raised by this rule turns, on the construction of certain provisions of the Mussalman Wakf Act (Act 42 of 1923). It appears that the petitioners and opposite parties 2 and 3, who are the Mussulman inhabitants of village Sahapur in the District of Murshidabad and are interested in the wakf created by one Hossain Ally and his wife on 19th July 1863 by a deed of wakfnama which concerned properties situate in Calcutta and in the districts of Murshidabad, Burdwan and Birbhum, applied before the District Judge, Murshidabad, for an order on the opposite party 1 to file a statement u/s 3 of the Act. They alleged in the said application that opposite party 1 was not managing the wakf estate according to the terms of the wakfnama but was misappropriating the wakf fund. The learned District Judge has thrown out the said application on the ground that the wakf is of a nature described in Section 3 of the Wakf Validating Act 6 of 1913 and as such the wakf clearly comes within the purview of the excepted part of Section 2, 01. (e), A