1979 (5) TMI 7 - HC - Income Tax

Summary

Issues Involved:
1. Legality and validity of the wakf created by Md. Safulla.
2. Whether the suit was barred by Section 42 of the Specific Relief Act and Section 37 of the Bengal Public Demands Recovery Act.
3. Whether the order of the Certificate Officer, Alipore, dated March 10, 1953, was binding on the plaintiff.
4. Whether the wakf was void for uncertainty.
5. Whether the wakf was acted upon.

Detailed Analysis:

1. Legality and Validity of the Wakf:
The principal question in this appeal was the legality and validity of the wakf created by Md. Safulla by the deed dated August 14, 1946. The deed of wakf (Ex. 'P') created a wakf-alal-aulad for the maintenance and support of his family, children, and descendants, and ultimately for religious, pious, and charitable purposes recognized by Muslim law. The subordinate judge had found the wakf to be void for uncertainty and not acted upon, declaring it a sham, collusive, fictitious, fraudulent, and dishonest transaction. However, the High Court disagreed, stating that the wakf was created for lawful objects and that the wakif was entitled to reserve certain powers (such as altering beneficiaries) under Muslim law. The court concluded that the wakf was validly created and not a sham transaction.

2. Barred by Section 42 of the Specific Relief Act and Section 37 of the Bengal Public Demands Recovery Act:
The defendants contended that the suit was barred by Section 42 of the Specific Relief Act and Section 37 of the Bengal Public Demands Recovery Act. The subordinate judge overruled this contention. The High Court also found that the suit was not barred by these sections. Section 37 of the Bengal Public Demands Recovery Act specifies that questions arising between the certificate-holder and the certificate-debtor should be determined by the Certificate Officer, except on grounds of fraud. The High Court found no evidence of fraud and concluded that the suit was not maintainable under Section 37.

3. Binding Nature of the Certificate Officer's Order:
The plaintiff sought a declaration that the order of the Certificate Officer, Alipore, dated March 10, 1953, was not binding. The Certificate Officer had found that the deed of wakf was executed and registered before the assessment was made and released the wakf property from attachment. The High Court held that the Certificate Officer acted within his jurisdiction and that his order was not null and void. Therefore, the order was binding on the plaintiff.

4. Uncertainty of the Wakf:
The subordinate judge had declared the wakf void for uncertainty, citing the use of general terms for the ultimate charitable purposes. The High Court disagreed, referencing the Privy Council and previous court decisions that upheld wakfs with general charitable purposes. The court concluded that the wakfnama was not void for uncertainty and that the ultimate benefit for religious, pious, or charitable purposes was sufficiently specified.

5. Whether the Wakf was Acted Upon:
The subordinate judge found that the wakf was never acted upon. The High Court reviewed evidence such as bank papers, rent receipts, municipal papers, and electric bills, which indicated that the wakf was indeed acted upon. The court noted that the wakf was enrolled with the Commissioner of Wakfs, West Bengal, and that various administrative actions were taken in the name of the wakf. The court concluded that the wakf was validly acted upon and not a sham transaction.

Conclusion:
The High Court set aside the judgment and decree of the subordinate judge, dismissing the suit with costs. The appeal was allowed, and the wakf created by Md. Safulla was declared legal and valid. The order of the Certificate Officer was found binding on the plaintiff, and the suit was not maintainable under Section 37 of the Bengal Public Demands Recovery Act. The wakf was not void for uncertainty and was found to have been acted upon.