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TMI Blog1998 (8) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... ffected by ss. 13 and 14 of the Transfer of Property Act. As a result the settlor had divested himself of these properties during his lifetime for the benefit of his granddaughter Oalia Kulsum and his daughter -in-law Anwar Begum and thereafter for their descendants and then for the holy shrine at Khum. On the date of his death the Settlor did not have any interest in the properties nor had he reserved any interest to himself under these trusts. Hence, for the purposes of Estate Duty, the deceased cannot be considered as having any interest in the trust property which passed on his death. The properties which constituted the subject-matter of the two trusts, therefore, cannot be included in the estate of the deceased, Sir Mir Osman Ali Khan, the Nizam of Hyderabad, for the purposes of estate duty. In favour of appellant. - - - - - Dated:- 3-8-1998 - Judge(s) : SUJATA V. MANOHAR., M. SRINIVASAN MRS. SUJATA V. MANOHAR, J. : On 21st of March, 1953, the Nizam of Hyderabad, Sir Mir Osman Ali Khan, executed a deed of trust under which he settled certain jewellery and other properties on trust for the benefit of Sahebzadi Oalia Kulsum, his grand daughter for life and thereafter f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erties were transferred by the settlor as a wakf. The settlor, Sir Mir Osman Ali Khan, expired on 24th of February, 1967. By an order passed by the Addl. Asstt. Collector of Estate Duty dt. 25th of January, 1973, the properties which were the subject matter of these two trusts were deemed to pass on the death of the deceased and were treated as property passing on the death of the deceased for the purposes of estate duty. The appeal of the present appellant, however, was allowed by the ACED by his order dt. 2nd of June, 1975. In the further appeal to the Tribunal, the Tribunal by its order dt. 7th of July, 1976 dismissed the appeal of the Department and confirmed the order of the ACED by holding that the value of the property forming the corpus of the trust cannot be included in the principal value of the estate of the deceased. From this finding of the Tribunal, the following two questions were referred to the High Court of Andhra Pradesh at Hyderabad : "A : Whether, on the facts and in the circumstances of the case, the trust created by the deceased on 21st March, 1953 known as Sahebzadi Oalia Kulsum Trust is ab initio void? B : Whether, on the facts and in the circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (meaning the mutwalli) will pass the produce to me while I live, then after me to my child and my child's child and their nasl for ever, while there are any and when they cease, to the indigent'. This is lawful". (N.B. nasl = descendants) There is general consensus on this proposition amongst the various authorities on Islam. The Privy Council, however, had an occasion to consider a wakf-alal-aulad created by a Muslim in the case of Abul Fata Mohammad Ishak vs. Rasamaya Dhur Chowdhary [1894] 22 IA 76 in which two Muslim brothers made a wakf whereby they were the first mutwallis of the wakf. The entire benefit of the wakf was to go to the children in the first instance and their descendants from generation to generation until the total extinction of the family. Thereafter, the income was to be applied for the benefit of widows, orphans, beggars and the poor. The Privy Council held that since the bequest to charity was illusory and too remote, the wakfs were not valid as they offended the rule against perpetuity. Criticising the decision of the Calcutta High Court in the case of Rasamaya Dhur Chowdhary vs. Abul Fata Mohammad Ishak [1891] ILR 18 Cal 399 which was subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of a wakf constituting one's family or children, the recipients of the benefaction, in whole or in part, is concerned, there is absolutely no difference. A wakf is a permanent benefaction for the good of God's creatures: the wakif may bestow the usufruct, but not the property, upon whomsoever he chooses and in whatever manner he likes, only it must endure for ever. If he bestows the usufruct in the first instance upon those whose maintenance is obligatory on him, or if he gives it to his descendants so long as they exist to prevent their falling into indigence, it is a pious act,-more pious, according to the Prophet, than giving to the general body of the poor. He laid down that one's family and descendants are fitting objects of charity, and that to bestow on them and to provide for their future subsistence is more pious and obtains greater 'reward' than to bestow on the indigent stranger. And this is insisted upon so strongly that when a wakf is made for the indigent or poor generally, the proceeds of the endowment is applied to relieve the wants of the endower's children and descendants and kindred in the first place. When a wakf is created constituting the family or descenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Law as applicable in British India. The Validation Act, 1913 merely restored the law of the Shariat which had been disturbed by the Privy Council judgment. Hyderabad, which was outside British India, must be considered as continuing to be governed by the principles of Mohammedan law as understood by the accepted authorities on the subject. Non-applicability of the Mussalman Wakf Validation Act, 1913 to the State of Hyderabad will not affect wakfs-alal-aulad created in the State of Hyderabad which are valid under the accepted principles of Mohammedan Law In fact, the Hyderabad High Court in 1955, referred to and applied the general principles of Mohammedan Law to declare a wakf invalid. In the case of Salah vs. Husain Ors. AIR 1955 Hyd 229, one Salah Bin Ahmed purported to create a wakf-alal-aulad with himself as Mutawalli. After his death his sons were to be Mutwallis and thereafter his grandsons. There was no dedication to the poor. Dealing with the position under the Mohammedan law, the High Court of Hyderabad referred to the difference of opinion between the disciples of Abu Hanif viz., Imam Mohammad and Abu Yusuf. While Imam Mohammed was of the view that without dedicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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