Non-Muslims can be included in the Wakf.

RAMACHANDRA IYER, C.J. :- This second appeal has been referred to us in view of the importance of the question involved, namely, "whether a charitable endowment of a non-communal character made by a Muslim can be regarded as a wakf within the scope of the Muslim Wakfs Act, 1954". The Courts below have expressed divergent view on the matter. For a due appreciation of the point for determination in the case, it is first necessary to refer to the terms of the endowment. But before doing so it will be useful to set out a few preliminary facts :

2. Hajee Mohammad Kasim, a resident of Rajagiri in Tanjore Dt. who appears to have been a man of enterprise and who evidently had enlightened views, acquired considerable properties by his business in foreign countries. In the year 1916, he established at his place a school known as Madras Kassima for the benefit alike of Muslims and non-Muslim boys. Eight years later he started a free dispensary which again was to serve the need of sick irrespective of the community to which they belonged. On 7-10-1927, he in order to place the two institutions on a sound footing executed a document styled as a deed of wakf, otherwise known as a declaration of trust endowing certain properties for their upkeep. Rules were laid down as well, for the management of the institutions. The document declares the intention of the founder that the benefit thereunder should not be restricted to the members of the Muslim community alone. It is not disputed that the foundation thus established by the donor took effect immediately on the execution of the document.

3. After the death of the founder there were complaints about the management of the two institutions by his successors. Certain residents of the locality instituted a suit under S. 92, C.P.C. inter alia for settling a scheme for better management. That litigation ultimately came up to this Court in A. S. No. 258 of 1943. By the final scheme, as approved by this Court, the management of the charities which came to be designated as "Kassimia Charities" has been vested in a board of five trustees the office of the managing trustee among them being declared to be hereditary in the family of the founder. The scheme provides that one of the other four trustees should be appointed from among the members of the Hindu community.

4. The scheme has been in operation since then. While so, the Central Legislature enacted the Muslim Wakfs Act (Act 29 of 1954) in order to provide for the better administration of the Muslim wakfs. The enactment came into force in this State by virtue of a notification made thereunder as and from 15-1-1955.

5. The Act provides for the constitution of a wakf board in each State which is to be a body corporate invested with powers of superintendence over all wakfs in the State in order to ensure proper maintenance, control and administration thereof consistent with the directions if any by the founder. S. 25 of the Act makes it obligatory on every wakf being registered at the office of the Wakf Board. The Board is empowered to remove Mutavallis of the wakfs who have been convicted more than once of an offence punishable under S. 41 of the Act. There is power in the Board to fill up vacancies in the office of Mutavalli of wakfs in certain cases. Sections 15 and 42 contain several provisions regarding the functions and powers of the Board; for instance it can settle a scheme for a wakf. There are provisions which enable the Board to conduct enquiries. Central Government is vested with power to make rules for carrying out the purpose of the Act. The Wakf Board is also given power to make rules and regulations regarding the conduct of its business, the manner in which the accounts of the wakfs are to be kept and the time for and the manner in, which the submission of budgets by the mutavallis, etc., should be made to the Board. Section 46 casts a liability on every Mutavalli of a wakf to pay contribution to the Board at such rate not exceeding