Validity of notification of properties as a Wakf within the Act.

S. RAMACHANDRA IYER, C. J. :- On 24-12-1958 the Wakf Board constituted for the Madras State notified that Bachamian Ismail Pakkiri TaiKkal, otherwise known as Arunagiri Appa Thaikkal, at Pasupathikoil in Tanjore Dt, was a wakf coming within the scope of the Wakf Act, 1954. This notification was challenged as invalid by the appellant who claimed to be the Managing trustee of the institution. The learned District Judge has negatived this contention and hence this appeal.

2. The only ground on which the notification has been challenged was that the wakf in question was a private one and therefore would not come within the scope of the enactment. It will be useful before proceeding to consider that question to set out the history of the institution.

3. Haji Sheik Ibrahim Sahib, a pious Muslim, made two endowments of his properties. The first was by a settlement deed Ex. A.1 dated 11-3-1889 in favour of a mosque. As we are not concerned in this appeal with that endowment, no further reference need be made to it. On 14-7-1914, Haji Sheik Ibrahim Sahib executed a will by which he gave substantial properties for the benefit of the Thaikkal at Pasupathikoil. The will also contained certain provisions for the benefit of his relations. The testator died shortly after the execution of the will and it has not now been disputed that the will became operative to its full extent. In A.S. 417 of 1933 on the file of this court, it was held that, notwithstanding the loose expression contained in the will, the intention of the testator was unmistakably to completely and absolutely dedicate the property for the wakf. Subsequent to that decision, a scheme was framed in A.S.35 of 1951. It is not disputed that the charity has been administered in accordance with this scheme. But the contention of the appellant, both before the lower court and here, has been that the endowment amounted merely to a private trust and that the mere existence of a scheme would not make it a public one, so as to vest a power in the Wakf Board to notify it under S. 5(2) of the Act.

4. The question whether the dedication contained in the will executed by Haji Shaik Ibrahim Sahib would amount to a wakf under the Act or not, has got to be principally decided by a reference to the terms of the document. The document appoints certain persons as Mutavallis and enjoins on them to conduct the charities specified therein. It then proceeds to say :

"They shall pay Rs. 1 per mensem as salary to Pesh-I-Imam and Rs. 2 per mensem as salary to Mouzan and shall present as inam two dhoties worth Rs. 7 and two dhoties worth Rs. 3-8-0 to the said Pesh-I-Imam and said Mouza respectively during Ramzan Kuthuba and Jigaj Kuthuba and shall also send Kanji vagaira daily to the said Pallivasal throughout in the said Ramzan month and distribute fruits etc, to Mukathis who would visit during the said Kuthuba. If Mussafars go to the said Pallivasal they shall be fed at the rate of three Muslims in a week and if the pichana (mats) etc. get damaged, they shall get them renewed, get the lamps burning throughout the day without fall and also effect repairs to the said Pallivasal buildings ........ Out of the income derived from the remaining lands in the said Thaikkal, viz, one veil and four mahs of panja and eight mahs of punja, out of the income derived from the house bearing door No. 1096 situate in East Street in the said fort, and from the house bearing door No. 50 situate in the East Alangan in the said fort, they (the trustees) shall perform the Mela to the said Thaikkal every year without fail and carry out timely repairs to the Gori and buildings etc. . .."

It will be seen that the purposes for which the income from the properties are to be devoted are religious and charitable ones and there is no limit to the amount to be expended, That the endowment was only for the charity is made clear by the concluding portion of the document, where the testator provides that if there be any defect in the