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TMI Blog1979 (5) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... the Calcutta property of the assessee formed part of the wakf estate under the terms of a deed of wakf executed by the assessee on August 14, 1946. The Certificate Officer allowed the claim of the Wakf Commissioner, holding that the certificate dues of the deceased assessee could not be realised by the sale of the wakf property. Subsequently, there were two further assessments of income-tax for the assessment years 1945-46 and 1947-48 for Rs. 2,26,843-6-0 and Rs. 16,983-14-0, respectively. It was contended by the plaintiff that the deed of wakf was collusive and fraudulent and was, accordingly, illegal and void. As the creation of the said wakf had put some illegal obstacles to the recovery of the income-tax dues of the said Md. Safulla, and since the deceased had cast a cloud over the plaintiff's right to realise the said dues out of the assets of the deceased, the plaintiff instituted the suit praying for a declaration that the said deed of wakf dated August 14, 1946, was fraudulent, illegal and void. Further, the plaintiff prayed for a declaration that the order of the Certificate Officer, Alipore, dated March 10, 1953, was not binding on the plaintiff. The defendants Nos. 1 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , either in the male or female lines the net balance of the income of the wakf estate which is payable to my sons and their descendants according to the terms of this wakfnama shall be spent for such purpose or purposes as are recognised by the Mussalman law as religious, pious and charitable, as the then mutawalli shall think fit and proper, and if there be no such mutawalli, as a competent court will think fit and proper. " In cl. (12) he reserved the right to alter the terms of the wakfnama and the beneficiaries of the wakf either by adding to their number or excluding some and to increase or reduce their shares. It was, however, directed that this power should not be exercised by any of the subsequent mutawallis. It has been observed by the learned subordinate judge that the wakif did not divest himself completely of the ownership and possession of the property with which the wakf was created, but he retained the same during his lifetime though, ostensibly, in his capacity as a mutawalli. We may now consider the propriety of this finding. Under s. 6(10) of the Bengal Wakf Act, 1934, " wakf " means the permanent dedication by person professing Islam of movable or immovable p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (see art. 190 of Mulla's Mahommedan Law, 16th Edn. p. 184)., The wakif was, therefore, entitled to make such reservation in his favour. The learned subordinate judge, in our view, was not right in holding that by, such reservation the wakif had meant to treat the property sought to be dedicated as his personal and absolute property. We may now consider whether the wakf is void for uncertainty as held by the learned subordinate judge. It has been stated already that the ultimate benefit was reserved for such purpose or purposes as are religious, pious or charitable. The learned subordinate judge has taken the view that the use of general words of the proviso to s. 3 of Mussalman Wakf Validating Act, 1913, was not a sufficient specification of the object and so the wakf must be held to be void for uncertainty. In expressing that view, he has placed reliance on two decisions, one of the Full Bench of the Chief Court of Oudh in Mi. Ahmadi Begam v. Mi. Badrun Nissan, AIR 1940 Oudh 324 [FB], and the other of the Bombay High Court in Mariambi v. Fatmabai, AIR 1929 Bom 127. In the former case, is has been held that a dedication in general terms for " charitable purposes highly commenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were paid in the name of the wakf. Further, rents were collected from the tenants; ejectment suits were instituted against them in the name of the wakf. The learned subordinate judge considered these evidence as insufficient to prove that the wakf was acted upon. He was again greatly influenced by the fact that the wakif reserved to himself the power to vary the number of beneficiaries and their shares which, it has been pointed out earlier, the wakif was lawfully entitled to do. It is the evidence of D.W. 1 that the surplus income of the wakf estate was distributed by the wakif amongst the beneficiaries. This evidence has not been accepted by the learned subordinate judge. We do not, however, find any reason not to accept the same. It is true that although by the wakfnama different reserve funds were directed to be opened,no evidence was adduced by the defendants that such funds were opened. They have, however, produced the bank account opened in the name of the wakf. In our view, as soon as a wakf is found to have been validly created, the failure of the wakif as the first mutawalli to perform the acts in terms of the wakfnama will not render the wakf invalid or void, nor can an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wakf was executed and registered long before the assessment was made. In that view of the matter, he released the wakf property from attachment. The plaintiff has also challenged the said order and has prayed for a declaration that the said order of the Certificate Officer is not binding on the plaintiff. It is not disputed that no appeal was preferred by the plaintiff against the said order of the Certificate Officer. The question is whether the present suit is maintainable in view of s. 37 of the Bengal Public Demands Recovery Act, 1913. Section 37 provides as follows: " Except as otherwise expressly provided in this Act, every question arising between the certificate-holder and the certificate-debtor, or their representatives, relating to the making, execution, discharge or satisfaction of a certificate duly filed under this Act, or relating to the confirmation or setting aside by an order under this Act of a sale held in execution of such certificate, shall be determined, not by suit, but by order of the Certificate Officer before whom such question arises, or of such other Certificate Officer as he may determine. Provided that a suit may be brought in a Civil Court in res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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