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TMI Blog1969 (8) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... Golam Hossain Casim Ariff, a Muslim governed by the Hanafi school of the Mohammadan law, created a wakf in respect of his properties in Noormul Lohia Lane and Armenian Street in Calcutta. The settlor appointed himself as the sole mutawalli for the term of his life and provided that after his death his widow, Aisha Bibi, and his sons would act as mutawallis jointly. The settlor died on January 1, 1937. He left behind his widow, Aisha Bibi, and three sons who are the appellants before this court. The wakf created was of the nature of wakf-alal-aulad for the benefit of the settlor's wife, children and their descendants. The extent of the benefit conferred on them would appear from clause 5 of the deed of wakf as modified : " 5. After payment of all necessary outgoings such as establishment charges, collections charges, revenue taxes, costs of repairs, law charges and other expenses for the upkeep and management of the said wakf property, the mutawalli or mutawallis shall apply the net income of the said wakf property as follows, viz. : (a) in payment to me during the term of my life of one-fifth of the said net income by monthly instalments ; (b) in payment to each of my sons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he third argument which had been raised before the Tribunal that the allowances under assessment were payable to the beneficiaries by way of maintenance were not transferable under section 6(dd) of the Transfer of Property Act and therefore they had no market value for inclusion in the net wealth was also refuted. It was pointed out that the right to maintenance was not one of the assets mentioned in section 5 which alone entitled an assessee to claim exemption in respect of certain assets. The Tribunal did not find it possible to hold on the facts of the case that the amounts in dispute were receivable by the beneficiaries as maintenance under the terms of the wakf. As regards the quantum of valuation a direction was made that the value of the assessee's life interest may be capitalised on the basis of the valuation table set out in Park's Principles and practice of Valuations taking the rent security at 6 per cent. On applications for referring the question of law, the following common question was referred to the High Court under section 27 of the Act: " "Whether on the facts and circumstances stated, the right of the assessee to receive a specified share of the net income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceive an aliquot share of the net income of the properties which were made the subject-matter of the wakf would be covered by the definition of " assets " within the meaning of section 2(e) of the Act. There can be no difficulty if such a right can be regarded to be property giving that word the widest meaning as is contemplated by the language employed in the aforesaid clause. The principal argument of Mr. A.K. Sen for the appellants is that the right to receive a share of the income under a deed creating wakf-alal-aulad can, by no stretch of reasoning, be regarded to fall within the meaning of the word to property " even in its wide and extended sense. He has referred to the incidents of such a right with particular reference to the Mohammedan law relating to wakf. That law owes its origin to a rule laid down by the Prophet of Islam ; and means " the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings. " Once it is declared that a particular property is wakf, the right of the wakf is extinguished and the ownership is transferred to the mutawalli (vide Vidya Varuthi Thirtha v. Balusami Ayyar ). Wakfs could be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions ; if a settlor reserved to himself income for his own maintenance and support that would not be transferable as property under the Transfer of Property Act, nor would it be attachable under the provisions of the Civil Procedure Code. If he, however, reserved for himself a life interest, section 6 of the Transfer of Property Act and section 60 of the Code with regard to the non-transferability and nonliability to an attachment would not be attracted. The crux of the matter, according to Mr. Sen, is that the aliquot share of income under the deeds executed in the present case was reserved for the maintenance and support of the wakf and other beneficiaries during, their lifetime. It is pointed out that if the provisions contained in clause (5) of the deed of wakf were not to be read in that manner, the deed would be rendered void, a result which has to be avoided by the courts. It is thus contended that the right, in question, is a right to future maintenance measured by the aliquot part of the income and it is neither partible nor alienable, and is one which is wholly personal to the beneficiary. It lacks the basic attributes of property. Now " property " is a term of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son or justification to give any restricted meaning to the word " asset "as defined by section 2(e) of the Act when the language employed shows that it was intended to include property of every description. On a proper construction of the relevant clauses in the wakf deed we are not satisfied that the aliquot share of the income provided for the beneficiaries was meant merely for their maintenance and support. But even on the assumption that it was so intended or to preserve the validity of the deeds it should be so construed, the right to the share of the income would certainly be an asset within the meaning of section 2(e) and would be liable to be included in the net wealth of the assessee. Mr. Sen has laid emphasis on the language of section 7(1) of the Act and has contended that the right to a share in the income is not capable of any valuation and the price which, it would fetch, if sold in the open market, could not possibly be ascertained. Such an argument was fully examined in the Bombay case in which the High Court referred to the provisions of the English statutes, which were in pari materia, as also decisions given by the English courts including the one by the House ..... X X X X Extracts X X X X X X X X Extracts X X X X
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