NAWAB ZAIN YAR JUNG AND OTHERS versus THE DIRECTOR OF ENDOWMENTS AND ANOTHER

SUPREME COUR11 REPORTS

1 S.C.R.

(6) The

before the execution of the document. (6) The defendant had not examined either Babu Ramnath Singh or other important witnesses who could have proved the fact that the plaintiff and her mother-in-law had the knowledge of the nature of the dooument. (7) The defendant managed to get this docum~nt by fraud to facilitate mutation of the property in his name. ·And ( 8) the plaintiff plaintiff gave acceptable evidenca in support of her cas'3. The finding of the both the courts is supported by evidence, and there is no permissible ground for interference with it in second appeal.

Mst. Kharbuja Kuer v. J angbohadur Rai Subba Rao'·

the plaintiff plaintiff

For the aforesaid reasons, we find that the learned Judge of the High Court had erroneously interferred with the concurrent findings of fact ' arrived at by the first•two courts. In the result, we allow the appeal, set aside the decree of the High Court and decree the suit with costs throughout;

Appeal allowed.

NAWAB ZAIN YAR JUNG AND OTHERS

THE DIRECTOR OF ENDOWMENTS AND ANOTHER

(B. P. SINHA, c. J., P. B. GAJENDRAGADKAR, K. N. WANCHOO, N. RAJAGOPALA AYYANGAR and T. L. VENKATARAMA A!YAR, JJ.)

Trust Properly-Wale/ and Public Oharitable Tt"UB~ Distinction-Rule of interpretation of documents -The W akJ Act, 1954 (29 of 1964), ss. 3(l), 9, 28-Hyderabad Etulowment Regulation, 1348-F (1939).

The appellants were appointed trustees by the Nizam of Hyderabad by trust deed executed on June 14, 1954. On March 2, 1959, respondent No. l, who was the Director of Endowments and Joint Secretary, Board of Revenue, served notice on the appell~11ts calling- upon them to re~ister the s~i4

.4pril 9.

1962 N,w.b Zain Yar Jung v. Thi Di11dor of Endowments

trust under the Hyderabad Endowment Regulation, 1348-F (19$9) and to render accounts of the same. The appellants contended that the trust was not governed by the said Regulation. Thereupon the first respondent sealed the pay office of the said trust. Although the seal was subsequently removed by an order of the Government of Andhra Pradesh, the appellants were asked to produce their books of account and not to operate upon the banks in which the money of the trust was deposited, and also not to spend any amount till further orders.

Appellants I to 3 filed writ petition in the High Court and prayed for writ of prohibition and certiorari. The fourth appellant was subsequently appointed an additional trustee and added as petitioner. The writ petition wa• dismissed by the High Court which held that s. 6 of Part States (Laws) Act, 1951, did not apply, and the Hyderabad Endowment Regulation and the Rules framed thereunder could not be said to have been repealed. It also held that the Regulation and the Rules did not contravene the fundamental rights guaranteed by Arts. 14,19 anC! 31 of the Constitution of India. The appellants came to this Court by special leave.While the appeal was pending in this Court, the Muslim Wakf Board, H)derabad, constituted under s. 9 of the Wakf Act, 1954, wrote to the Secretary of the trust that the trmt was Wakf within the meaning of the Wakf Act, and steps should be taken for its registration under s. 28 of the Act. When the order was not complied with in spite of reminders, the Board itself caused the registration of the trust to be made. When the registration was published, respondent No. 2 moved the High Court for quashing the registration of the trust on the ground that the trust was not Wakf and the provisions of the Wakf Act did not apply to it. Under these circumstances, the Wakf Board was also made party in this Court. But the parties agreed that if the trust was held to be wakf within the meaning of the relevant provisions of the Wakf Act and its registration under s. 28 was found to be valid, the impugned Regulation and the Rules framed thereunder would be inap-plicable to the trust and the appeal would have to be allowed; on the other hand, if it was held that the trust was not Wakf and the provisions of the Wakf Act were not applicable to it, its registration under s. 28 would be invalid.

Heltl that the trust created is not Wakf but secular public ch~ritab~e tr~st. The Wakf_A~t, 1?54, d~s not a~ply to it and its regtstrat1on under s. 28 is invalid and 1noperat1ve. The' whole scheme of the trust deed vests the title in the trustees and gives them absolute discretion to use the said property and it~ income for any of lhc ch~ritable purpo:ies

I S.C.R. SUPREME COURT REPORTS

specified in the document. The dominant intention of the, settlor in creating the trust was to help public charity in the best sense of the words, 'public charity' not confined to any caste, religion or creed. This is inconsistent with the concept of Wakf. The appointment of non-Muslims as tr~stees is indicative of the fact that Wakf was not intended. The document calls the author of the trust the settlor and the appellants trustees and that introduce!! the concept of the trust as contemplated by English Law, and that is against the concept of Wakf.

Vidya Varuthi Thirtha v. Balusami Ayyar, (1921) L. R. 48 I. A. 307, referred to.

It is an elementary rule of construction that if two

constructions are reasonably possible, the one which gives effect to all the clauses of the document must be preferred to that which defeats some of its clauses

CIVIL APPELLATE JURISDICTION: Civil Appeal .

No. 109of1961.

Appeal by special leave from the Judgment

and order dated October 20, IU59, of the Andhr~

Pradesh High Court in·Writ Petition No. 337of1959.

M. O. Sewlvad,

Attorney-General for India,

0. K. Daphwry; Soliciwr-General of India, A. V. V iswarw,tha Sastri, Anwaruallah Pasha, 8. Rangana-tham, J.B. Dadachanj-i, 0. 0. Mathur and Ravinder Narain, for the appellants.

D. Narsaraju, Advocate-General for the Sl4te of

Andhra Pradesh, G. R. Ekbote, D. Prasanna Kumari, D. Venkatappayya Sastri and P. D. Menon, for respondents Nos. I and 2.

G. S. Pathak, 8. M. DUbash and V. J. Merchant,

for respondent No. 3.

1962. April 9. The Judgment of the Court was delivered by

GAJENDRAGADKAR, J.-This appeal is directed

against the order passed by the Andhra High Court dismissing an application for writ tiled by the f'ppellants in that Court, The four appellants Q.f~

196S Nawab Zain rar Jun1 v. The Director of Endawmen's

Gajmtlragaiktr J

N•walJ .(ain 21"' Jung v. Tli1 Dirtctor of Eru/0Wm1nt•

the Trustees appointed by the Nizam of Hyderabad by Trust.deed executed by him on June 14, 1954. On March 2, 1959, respondent No. 1 who is the Director of Endowments and Joint Secretary, Board R.evenue, served notice on the appellants calling upon them inter alia, to register the said Trust under the Hyderabad Endowment Regulation, 1348.F (1939) and to render accounts of the same from the date of its inception to the date of the notice within week. The appellants disputed the authority of respondent No. 1 to issue the said notice and urged that the trust was not governed by the said Regula-tion. Thereupon, the first respondent issued an order on March 23, 1959, and in pursuance of it, sea.led the Pay Office of the said Trust. Subsequently, on March 25, 1959, the said seal was removed in pursuance of the order issued by the second respondent, the Government of Andhra Pradesh. The appellants then were called upon to produce their books of accounts in order that the first respondent may scrutinise them and ascertain all the relevant facts in respect of the Trust as required by Rule 8 of the Rules framed under the said Regulation. The appellants were also directed not to operate upon the banks with which the moneys of the Trust were deposited and not to spend any sum on the objects of the Trust until further orders.

On March 24, 1959, appellants 1 to 3 filed the present writ petition and prayed inter alia that writ of Prohibition and Certiorari or other writ or appropriate order or direction should be issued in respect of the notice served on them by the 1st respondent on March 2, 1959, and his subsequent order of Maroh 23, 1959. The 4th appellant was sub~equently appointed an additional trustee and was thereafter added as petitioner to the said petition on October 12, 1959.

In their writ petition, the appellants alleged

that the said Regulation had ceased to btr operativtl

1 S.C.R. SUPREME G"OURT REPOR'rB

in Hyderabad by reason of section 6 of Part States (Laws) Act 1951 (No. III of 1951) which had been extended to Hyderabad as from 1st April, UJ51. Section 6 of the said Act provides that if immediately before the appointed day, there was in force in any Part State any law corresponding to any of the Acts or Ordinances now extended to that State, that shall, save as otherwise expressly provided, star.id repealed. ,Amongst the laws extended to Hyderabad by the said Act were the Indian Trust Act, 1882, Charitable Endowments Act (VI of 1890) and Charitable and Religious Trusts Act (XIV of IU20 J. Subsequently, by Central Act II of 1951, the Civil Procedure Code was made applicable to Hyderabad and section 92 of the said Code thus applied to proceedings contemplated by it. The appellants urged that the aforesaid laws which were thus extended to Hyderabad corres-ponded to the Hydera.bad Endowments Regulation and so, by virtue of the provisions of s. 6 of the Part States (Laws) Act, the said Regulation stood repealed as from April I, 1951. According to the appellants, the said Regull1tion and the Rules framed thereunder were ultra vires also for the reason that they were violative of the fundamental rights guaranteed by Articles 14, l9 and 31 of the Constitution. It is broadly on these grounds that the appellants based theit' claim for an appropriate writ against both the respondents.On the other hand, the respondents contended that the Regulation and the Rules framed there-under were not co-extensive with the provisions of the Acta which had been extended to Hyderabad by the Part States (Laws) Act and so, s. 6 of the Act was inapplicable to them. The respondents also pleaded that the said Regulation and the Rules did not contravene any of the fundamental rights guaranteed by Part III of the Constitution. As to the orders issued by respondent No. I, it was the

Nawab Zain f"ar JuPg v. Thi Director oJ E,.da1om1nl1 Gojendragadlm J •

N•wab J.,,, Zoin Tcsr v. The Director of EntlPwmerits

respondents' case that the said orders were justified aud could not be set aside.

The High Court held that the order passed by the 1st respondent prohibiting the disbursement of moneys by the appellants was inappropriate and that the 1st respondent was not justified in directing the seizure of account books and recorrls and taking forcible possession of the same. However, on the main points raised by the appellants, the High Court has held that s, 6 of the Part States (Laws) Act did not apply and so, the Regula.tion and the Rules framed thereunder cannot be said to have been repealed, as from April l, 1951. The contention raised by the appellants that the said Regulation and the Rules contravened the fundamental rights guaranteed by Articles 14, 19 and 31 was likewise rejected. In the result, the High Court dismiBBed t.he writ petition filed by the appellants. The appellants then applied for certificate to the High Court, bnt their applic8,tion was rejected. That is why the appellants moved fo" and obtained special leave from this Co•irt and it is with the special le{Lve thus granted to them that they have come to this Court by the pr'"sent appeal. The appea.l seeks t,o raise the same two questions for our decision.

While the appeal was pending in this Court, certain developments took place in regard to the trust in question and it is necessary to mention them. It appears that on September 10, 1956 the Muslim Wakf Board, Hyderabad, constituted under s. !l of the Wakf Act, 1954 (Central Act No. 29 of 195·'1,), wrote to the Secretary of the Trust that in the opinion of the Board, the Trust waH W akf within the meaning of the Wakf Act and that steps should be taken for its registration under s. 28 of the said Act. For nearly three years thereafter, no step was taken to register the wakf nor did the Board pursue its demand that the truet should be registered. In March, 1959, however, the Board

l S.C.R.

sent further communication to the Secretary and ctl.lled upon him to got the trust registered. The appellants did not comply with this requisition. On Ddcember 18, 1960, the Board purported to exercise its authority under s. 28 of the Wakf Act ancl itself caused the registration of the trust to be made. The registration so made was published in the Andhra Pradesh Official Gazette on January 121 1961. ,Respondent No. 2 then moved the Andhra High Court by writ petition No. 791 of 1961 for quashing the said registration of the Trust. It urged that the trust in question was not wakf and so, the provisions of the Wakf Act were inapplicable to it ; and thus, the validity of the registration of the trust ~ecame matter of dispute between the Wakt Board and respondent No. 2.When this appeal was called on for hearing before this Court on December 6, 1961, the learned counsel for both the parties informed the Court about the developments in question and statfld that the ragistration of the trust had changed the complexion of the dispute which made it necessary that this Court should consider the nature of the trust and decide whether the registration of the said trust under s. 28 of the Wakf Act was valid or not. Meanwhile, on August 9, 1961, the Wakf Board had applied to intervene in the present appeal, so that when the appeal was heard by this Court on December 6, 1961, the appellants, the respondents and the Wakf Board were all heard and by consent, an order was passed that the appellants should be allowed to urge additional grounds in support of their appeal, these grounds being based on the registration of the trust. It was also ordered that the Wakf Boa.rd be perm.itted to be added as~ party to the app~al, and that all the parties should be permitted to file additional statements in the case within the time specified. When the parties obtained thifl order by consent, ih was understood that they would make the

Nawab Zain Tan Jung. __ _ v. The Directaf' of Endowmees G'JjcndragadM J.

19~t Naw1b Zain rar .lung v. TM Dir,dor of Endomentr Gajmdrogadkar J.

necessary application to the Andhra High Court for adjournment of the hearing of the writ petition filed by respondent No. 2, No. 791 of 1961, pending the decision of the appeal in this Court. The result of this consent order is th it all the points of dispute between the parties would be decided by this Court and so, the final decision of this Court would ~overn the decision of the writ petition filed by respondent No. 2 in the Andhra High Court ag!1inst the Wakf Board. In pursuance of the said consent order, the appeal has now come before us for final disposal.

It is common ground that if the trust is held

to be wakf within the meaning of the relevant provisions of the Wakf Act and its registration under s. 28 is found to be valid, the impugned Regulation and the Rules framed thereunder would he inapplicable to the said trust and so, in that event, the appeal would have to be allowed. If on the other hand, it is held that the trust is not wakf and that the provisions of the Wakf Act are inapplicable to it, then its registration under s. 28 of the said Act would l'e invalid, and the contentions which the appellants initially wanted to raise in their appeal would fall to he considered. That is why, logically, the first point to consider in this altered situation .would be whether the Wakf Board was justified in registering the trust under s. 28 of the Wakf Act (hereinafter called the Act): and that takes us first to consider the nature of the wakf to which the Act applies.

The Act was passed in 1954 for the better

administration and supervision of wakfs. Section 3(1) defines wakf as meaning permanent dedica-tion by person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as points, religious or charitable and includes:-

(i) w&kf by user;

I S.C.R. SUPREME COURT REPOR'tS

and "wakif" means any persou making such dedica-tion. Consistently with this definition "wakf", a. "beneficiary" has been defined by s. 3( a) as meaning person or object for whose benefit wakf is created and it includes religious, pious and chari-table objects and any other objects of public utility established for the benefit of the Muslim community. It is thus clear that the purpose for which wakf can be created must be one · which is recognised by Muslim law was pious, religious, ·or charitable, and the objects of public utility which may constitute beneficiaries under the wakf must be objects for the benefit of the Muslim community. Naturally, tLe wakf contemp-lated by the Act can be either ''Shia wakf" or "Sunni wakf: Shia wakf meaning wakf governed by Shia law (s. 3(j )J and Sunni wakf meaning a. wakf governed by Sunni law [s. 3(k)J. This broad division of wakf into two categories is reflected in other provisions of the Act. Section 4 ( 3) provides, inter alia, that the Commissioner shall, after mak-ing such enquiry as he may · consider necessary, submit his report to the State Government contain-ing the specified particulars-amongst them is the particular in regard to the num her of wakf in the State, showing the Shia. wakfs and Sunni wakfs separately. It would thus be clear that the preliminary survey of wa.kfs contemplated by s.4: is' intended to collect data about the wakfs jn the State to divide them into Shia wakfs and Sunni wakfs separately. Then in regard_to the appoint-ment of the members of the Board~with which s.11 deals, the provise to the said section lays duwn that in determining the number of Sunni members

1961 Nawab Zain rar Jun1 v •. The Direcfor of Endt1W111enl• Gajmdra1at1Tta1 J,

1962 Ncm/J .{ain rar J .. •• 'l"h1 Dl•tPOf" &do ..... .is •iV1ndT•1adhr J •

478 SUPREME OOURT REPORTS (1969]

or Shia members is the Board, the State Govern-ment shall have regard to the number and value of Sunni wakfa and Shia wakfs to be administered by the Board. Sections 6 provides for the settlement of dispute is regard to the question as to whether wakf is & Shia wakf or Sunui w.'l.kf and s.15 wbioh dealil with the functions of the Board has an explanation which provides that the powers of the Bo11rd shall be exercised-

( i) in the case of Sunni wakf, by the Sunni members of the Board only ; and

(ii) in the case of Shia w&kf, by the Shia members of the Board only.

it is thus clear that the wakf contemplated by the Act can be either Shia wakf or Sunni wakf and the provisions with regard to the management of the wakf are accordingly made on that basis.

The Muslin> character of the wakf is also emphatically brought out by certain other provis· ions of the Act. The proviso to s. 15(1), for inst· ance, requires that in exercising its powers under the Act, in respect of any wakf, the Board shall act in conformity with the directions of the wakif, the purposes of the wakf and any usage or custom of the wakf sanctioned by the Muslim law. Similarly, s.15(2)(j) lays down that the Board has power to sanction leases of propertJ for more than three years or mortgage or exchange properties accord· ing to the provisions of Muslim law. Section 21 requires that there shall be Secretary to the Board who shall be Muslim and he shall be appointed by the State Government in consultation with the Board ; and s. 13 provides that person shall be disqualified for being appointed member of the Board if he is not Muslim. There can, therefore, be no doubt that the wakfs with which the Act deals are trust,s which are treated as wakfs under the definition of s. 3( I) and as such, a. trust1 S.C.R.

which does not satisfy the tests prescribed by the said definition would be outside the Aot. This position is not disputed.

At this stage, it is necessary to distinguish between wakfs 'recognised by Muslim law and reli-gious endowments recognised by Hin du Law on the one hand and public charitable trusts as contemp-lated by the English Law on the other. This question has been considered by the Privy Council in Vidya Varuthi Thirtha v. Balusami Ayyar (1) Mr. Ameer Ali who delivered the judgment of the Board observed that "it is to be remembered that ''trust" in the sense in which the expression is used in English law, is unknown to the Hindu system, pure and simple. Hindu piety found expression in gifts to ideals and images consecrated and installed in temples, to religious institutions of every kind, and for all purposes considered meritorious in the Hindu social and religious system ; to Brahmins, Goswamis, Sanyasis, eto ..••............ When the gift is directly to an idol or temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, he is only the manager or custodian of the idol or the institution..................... In no case is the property conveyed to cir vested in him, nor is h~ trustee in the English sense of the term, although in view of the obligations and duties resting on him, he is answerable as trustee in the general sense for mal-administration." (p.3ll ). Thus, these observations show that the basis con-cept of religious endowment under Hindu Law differs in E>ssential particulars from . the concept of trust known to English Law.

Similarly, the Muslim law relating to trusts

differs fundamentally from the English law. According to Mr. Ammer Ali, "the Moha.mmadan laws owes its origin to rule laid dowp by tb,~ c•> , 1921> t..R. 41.J i.A Joa •

NaWtJIJ Zain 1"111r Jung v. Th, Direceor of l!udowmtnts

Gajentiragadhr J.

J9~1 Naw•b {.-in Tar Jun1 •• Tl" Director of Endowments (J ojendrogadkar J.

Prophet of Islam; and means "the tying up of pro-perty in the ownership of God the Almighty and tile devotion of the profits for the benefit of human beings." As result of the creation of wakf, the right of wakif is extinguised and the ownership is transferred to the Almighty. The manager of the wakf is the mutawalli, the governor, superintendent, or curator. But in that capacity, he has no right in the property belonging to the wakf; the property is not vested in him and he is not trustee in the legal sense." Therefore there is no doubt that the wakf to which the Act applies is, in essential feat· ures, different from the trust as is known to English law.

Having noticed this broad distinction between the wakf and the secular trust of public and religious character, it is necessary to add that under Muslim Jaw, there is 110 prohibition against the creation of trust of the latter kind. Usually, followers of Islam would naturnlly prefer to dedicate their property to the Almighty and create wakf in the conventional l\fahommedan sense. But that is not to say that the followers of Islam is precluded from creating public, religious or chR.ritable trust which does not conform to the conventional notion of wakf and whioh purports to create public religious charity in non-religious secular sense. This position is not in dispute. Therefore, the main question which calls for our decision is : Is the trust executed by the Nizam wakf to which the provisions of the Act apply or is it public charitable trust falling outside the said Act ? : and the decision of this question would obviously depend upon the construction of the document by which the trust is created and it is to that problem that we will now turn.

In construing the document by which the t.rui-1. iR created by the Nizam, it is :per,e~sary to

1 S.C.R. SUPREME OOURT REPORTS

read its material portion. relevant for our purpose:-

Clauses I to 4 are

"This indenture made at Hyderabad the 14th day of June, 1954 between his Exalted Highness Nawab Sir Osman Ali Khan Bahadur G.C.S.I., C. B. E., The Nizam of Hyderabad and Berar (hereinafter called ''the settlor" which expression shall unless repugnant to the context or meaning thereof be deemed to include his heirs, executors and administra-tors) of the one par-t and Nawab Zain Yar Jung Bahadur of Hyderabad, Muslim, inhabi· tant and Va.pal Pangunni Menon of the Banga,. lore, Hindus, inhabitant (hereinafter called "the Trustees which expression shall unless repugnant to the context or meaning thereof be deemed to include the survivors or survi-vor of them and the Trustees for the time being of these presents and the heirs, execu-tors and administrators of the last surviving Trustee their or his assigns) of the other part :

t Whereas the Settlor has prior, prior

to the execution of these presents, made full and ample provisions for the several members of his family which·enable them to maintain themselves in comfort in accordance with and benefitting. the station of life in which Provi-dence has placed them and the Settlor has fulfilled his duty as the head of the family towards them so that with the help of God Almighty they will be able to live in reason-able comfort even in the altered conditions existing in the present times:

And whereas in so doing the Settlor has parted with large portion of his wealth and assets :

And whereas the Settlor feels that he ahould now devote arid dedio~t~ Ao substuatial

1161 N.-Zain r,,, J11111 ... T"4 Di"clo' of. EruiOWtMnls

1961 Nawab Z•in 2"n Jun1 v. Thi Dirrctor of Endow11unls

SUPREME OOURT REPORTS [1963)

part of his remaining assets for being utilised for the relief of the poor particularly in the State of Hyderabad and for the maintenance of religious institutions, particularly in the State of Hyderabad and for the advancement of education and for other charitable pur-pose with out distinction of religion, caste or creed :

And whereas in view of the deteriorating euonomic conditions particularly in the State of Hyderabad the need to help the poor and the indigent is much greater now than before and the Settlor is therefore desirous of making Charitable trust of the shares, securities and moneys particularly describl'!d in the schedule hereunder written (including all the right9 incidental or attached to his holding thereof) of which he is at present the sole owner :

And whereas the Trustees have agreed to become the fir9t Trustees of those presents as is testified by their being parties to and excut-ing those presents ;

And whereas the sum of Rs. 88,490/-(Rupees eighty-eight thousand four hundred and ninety only) mentioned in the Schedule hereunder written has been paid by the Set-tlor to the Trustees by cheque drawn in their favour this day before the execution of these presents.

Now this Indenture witnesseth as follows :

I. Fo:r effecting his said desire and in consideration of the promises the Settlor doth hereby declare tha~ he has, prior to the execution of these presents, paid and tnnsfer. red and he doth hereby confirm such pa.yment and transfer unto the Trustees of all that the said sum of Re. 88, 490/ (1 upees eighty.eight thousand four hundred and ninety only)

1 S.C.R.

SUPREME OOURT REPORTS

included in the Schedule hereunder written and further the Sottlor doth hereby assign and transfer unto the Trustees all those shares and securities described in the Schedule hereunder written together with all the rights of the Settlor incidental or attached to his holding of the said shares and securities and all the estate right, title and interest, property, claim and demand whatsoever at law and in equity of the Settlor of, in and to the said moneys, shares and securities and every part thereof •to have and to hold receive and take' all and singular the said moneys shares and securities described in the Schedule hereunder written unto the Trut1tees for ever upon the Trusts and with and subject to the powers, provisions, agreements and declarations here-inafter appearing and contained of and con-cerning the same.

~. The Trustees do hereby declare that they, the Trustees shall hold and stand possessed of the said shares, securities and moneys described in the schedule hereunder written and all the rights incidental or attach-ed to the holding of the said shares and secu-rities by the Settlor (all which are hereinafter for brevity's sake referred to as ''the Trust Fund" which expression shall also include cash and any other property and investments of any kind whatsoever into which the same or any part thereof might be converted, invested or varied from time to time or such as may be acquired by the Trustees or come to their hands by virtue of these presents or by operation of law or otherwise howsoever in relation to these presents) upon the Trusts and with and subject to the powers, provi-sions, agreements and declarations hereinafter declared and contained of and concerning the same.

1961 \ Naw.b ~11i11 r.,. Jung v. 1/uDiruln•f Erulaw111111es

1961 Na•Z.UoYar J.,,,, v. Tiu Dire- of EnJ1wm1•11

Oaj1nd otJadl., I.

SUPREME COUR'f REPORTS (1963]

3. The Trustees shall held and stand possessed of the Trust Fund upon the follow-ing Trusts :

(a) To manage the Trust Fund and col-lect and recover the interest, divi. dends and other income thereof :

(b) 'fo pay and discharge out of the income of the Trust Fund all expen-ses and charges for collecting and recovering the income of Trust Fund and the remuneration of the Trustees payable under these presents and all other costs, charges and expenses and outgoings of and incidental to the trusts created by these present and the administration thereof :

( c) To pay or utilise the balance of such interest dividends and other income of the Trust Fund (hereinafter called '•the net income of the Trust Fund" and if the Trustees so desire the corpus of the Trust of any part of the corpus or any one or more of the following charitable purposes in suoh shares and proportions and in such manner in all respects as the Trustees shall in their absolute discretion think fit, that this is to say -

(i) for the relief of the poor, parti-cularly in the State of Hydera-bad (Deccan) including the esta-blishment, maintenance and support of in1titutions or funds for the relief of any form of poverty.

(ii) for the maintenance, upkeep and support of pnblio religious, insti. tutions, and otherwise for the

advancement of religion parti-cularly in the State of Hydera-bad (Deccan) To The Intent that the benefit of the present clause shall not be restricted to any particular religion.

(iii) for the advancement and pro-pagation of education and learn-ing, particularly among tLe inhabitants of the State of Hyderabad (Deccan), including the establishment, maintenance and support of colleges, schools or other educational institutions, professorships, lectureships, scholarships and prizes, parti-cularly for the benefit of the inhabitants of the State of Hyderabad (Deccan).

(iv) for giving medical aid and relief, particularly to the inhabitants of the State of Hyderabad (Deccan), including the establish-ment, maintenance and support of institutions or funds for medi-cal aid and relief, and

(v) for the advancement of any other object of general public utility, particularly in the State of Hyderabad (Deccan).

4. The trust and charity hereby created

shall be called ''H. E. H. Nizam's Charitable

Trust."

x ,, ,,

5. x x x ,, ,, It is urged by Mr. Pathak who appeared for

1911 Nawab ~an ru Jnn1 v. n, Dir1etor nj Endowments Gajendragatllrar J.

1961 N owab zo;n rar Ju·1 •• 'flu Director of Enduwnrtntl

the Board that the significant fu~ture of the docu-ment is the desire of the settlor to devote and dedicate substantial part of his remaining asset• for being utilised for religious purposes, and that is the distinguishing feature of wakfs. His argument is that in dealing with the character of the tru1t created by the document, we should not attach importance to the words like the 'Settlor' and the •Trustees' because words are mere matter of form and the character of the document must be judged from the substance of its provisions and not their form. The intention of the document is the desire of the settlor to dedicate the property which is it. subject· matter to purposes recognised as charitable by Muslim law and so though the appellant& are described as Trustees and though there·are certain expressions showing that the property has vested in them, we should not lose sight of the basic concept which actuated the 1ettlor in executing the docu-ment and that concept is one of dedication on which wakf are based.

It is also urged that the effect of clauses relat-

ing to the veeting of the property in the appellant as Trustees should be judged in the light of the character of the property with which the document deals. The subject matter of the trust is movable property and unless the said property was assigned to the appellants, they would not have been able to deal with it, and that alone is the b&liis and the justification for the vesting provieions in the document. Therefore, too much importance should not be attached to the said provisions and it should not be held that since there is vesting of legal title in the appellants, the tranQaotion is trust and not wakf. The pervading idea of the document ia the dedication of the property to purpoees recognised by Muslim law as valid for wakf and it is only as means to give effect to that idea that the property has been vested in the appellants. That

I S.C.R . SUPREME COURT REPORTS

in brief, is the main argument in support of the plea that ihe trust is wakf to which the provisions of the Act apply.

On the other ha.nd, there are certain other broad features of the transaction which are wholly inconsistent with the not.ions of wakf. The outstanding impression which the document creates is that the settlor wanted to create trust for charitable purposes and objects in seoular and comprehensive sense, unfettered and unrestricted by the religious considerations which govern the creation of wa.kf. E-ven the clause on which Mr. Pathak relies for the purpose of showing the intention to dedicate the property to Almighty makes it perfectly clear that amongst the objects for which the trust was created were included other charitable purposes without distinction of religic:m, caste or creed, and that obviously transgresses the limits prescribed by the requirements of valid wa.kf. The same comprehensive character of the charitable purpose which the settlor has in mind is equally emphatically brought out by cl. 3(c)(ii). Clause 3 provides that the Trustees shall hold and stand possessed of the Trust!und :upon the Trusts specified in sub-els. (a) to (c).' Sub-clause (c}(ii) refers to the maintenance, upkeep and support of public religious institutions, and otherwise for the a,dva.ncement of religion, particularly in the State of Hyderabad; and it adds that the benefit of the present clause shall not be restricted to any parti· cular religion. public. ,charitable purpose which is not limited by considerations pertaining to one religion or another could not have been more eloquently expressed. The dominant intention of the sy.ttlor in creating the trust was to help public charity in the best sense of the words, public charity' not confined to any caste, religion or creed; and it is in that sense that the religious institu-tioqs which are within the purview of the trust ~re

Nawob Zain rar Jling v. Ths DiT1ctor of Erulow'm1nts

1161 N•wab z.;,, Y •r J~fll/ •• TM Director of Endowm111t11

all religious institutions not confined to any par.ti-cular religion. Then look at cl. 3(c)(v). It provides that the trust property can be utilised for the advancement of any other object of general public utility, particularly in the State of Hyderabad. It is true that the settlor wanted the objects of general public utility in Hyderabad to be preferred and in that sense the document discloses desire to prefer the objects of genera.I public utility aituated within the territorial limits of Hyderabad. But it is plain that it was farthest from the mind of the settlor to impose limitation that the objects of general public utility should be confined to those recognised as such by Muslim law. It is thus clear that the outstanding feature of the trust disclosed by these provisions is plainly inconsistent with the concept of wakf and that itself would rule out the view that the docu-ment creates wakf and not comprehensive public charitable trust.

It is true that large number of provisions con-

tained in the document are consistent with the view that the document creates wakf as much as they are consistent with the view that it creates public charitable trust as distinguished from wakf. It is, however, patent that there are some clauses which are inconsistent with the first view, whereas with the latter view all the clauses are consistent. In other words, if the construction for which the Board contends is accepted, some clauses would be defeat-ed, whereas if the construction for which the respondents contend is upheld, all the clauses in the document become effective. In our opinion, it is an elementary rule of construction that if two constructions are reasonably pouible, the one which gives effect to all the clauses of the document must be preferred to that which defeats some of its clauses. It is not in dispute that if the document is held to be wakf, the direc· tions in the document that charitable pW'poses

i s.c.:R. SUPREME COURT REPORTS

should be selected without distinction of religion, oaste or creed, would ob>iously be defeated and that undoubtedly supports the cqnclusion that the document evidences public charitable trust and not wakf. ·

Besides, the clause on which the argument of dedication is based cannot be divorced from the provision contained in the said clause which pro-vides for charitable purposes without distinction of religion, caste or creed and so, the intention of the settlor was to help not only charities which would fall within the definition of wakf but also charities which would be outside the definition; and so, the whole argument of dedic<ttion breaks down because the idea of dedication is not confined to purposes which are recognised at charita.ble by the definition of the Act bnt extends for beyond it.s narrow limits. In this connection, it may be rele-vent to recall that it would be competent to the Trus-tees to devote substantial part of the income, and may be even the whole of the income, to purpose which may be outside the limits of wakf by virtue of their powers under cl. 3( c) of the document, and that plainly suggests that the vision of the settlor was not confined in the narrow limits prescribed by the conditions as to valid wa.kf.

It is in this context that the other provisions a.bout vesting must be considered. The document calls the author of the trust as the •Settlor' and the appellants as the ,Trustees' and that introduces the concept of the Trust as contempleted by English Law. Clause 1 of the document speoifically assigns and transfers unto the appellants all these shares and securities described in the Schedule which are the subject-matter of the trust. This clause, in terms, transfers the shares and securities to the Trustees and so, the legal title in respect of the sub-ject-matter of the trust vests in the Trustees. The argument that lhe provision for vesting had to be made because the proporty in question is movable

NoUJ•/J Zain Y•1 Jung •• Th• Dir.ell' 1J 1J

Th• Dir.ell' 1J 1J Entiolllmtnt.t

GajenJra4adkar v

N""'ob Z•i• Tor J~ .. •• Tiu Dir,.1or of Endaumwnt1

property, does not carry conviction because the whole scheme of the document appears to be to vest the title in the Trustees and gives them absolute discretion to use said property and its income for any of the charitable purposes specified in the docu-ment. Thus, the vesting provision has not been adopted as means to carry out the intention to dedicate the property to the Almighty but it cons-titutes the essential basis of the transaction and that is to transfer the legal title of the trust pro-perty to the Trustees. In that sense, cl. 14 which confers on the Trustees absolute discretion to deal with the property in any manner they like, as well as els. 18 and 24 which clothe them with authority to employ servants is; their uncontrolled discretion and to appoint Committee for management of the Trust, become more easily intelligible. In this con. nection, we may also notice the fact that the appoint-ment of non-Muslims as Trustees which is prohibi-ted by the Act, is an indication that the s~tlor did not regard the trust as falling within 1the said statutory prohibition; likewise, the sch'ilme of management of the trust which the Trustees a.re given liberty to adopt in administering the trust, is completely free from the regulations based on Muslim law which the relevant sections of the Act have prescribed. '.I'hese several features of the trust support the conclusion that the trust is not wakf and does not fall within the provision of the Act. We have carefully considered all the relevant provisions of the document and we are satisfied that on fair and reasonable construction, the document must be held to have created trust for public charitable purposes, some of which are outside the limits of the wakf and so, the con-clusion is escapable that the trust <'reated is not wakf but secular comprehensive public chari-table trust. In that view of the matter, s. 3 ( 1) of the Act cannot apply to the trust and its registra-tion under s. 28 is invalid and inoperative.