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PETITIONER: FAZLUL RABBI PRADHAN

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT: 08/03/1965

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C. SIKRI, S.M.

CITATION:  1965 AIR 1722            1965 SCR  (3) 307  CITATOR INFO :  R          1974 SC 663  (8)  RF         1978 SC1736  (6)

ACT:     West Bengal Estates Acquisition Act (Act 1 of 1954),  s. 6(1)(i)--"Charitable purpose", meaning of.

HEADNOTE:    The  appellants  were the respective  mutawallis  of  two wakfs,  in which either the ultimate benefit to the  charity was  postponed  till after the exhaustion  of   the  wakif’s family  and descendents, or the income from the wakf  estate was  applied for the maintenance of the family side by  side with  expenditure  for  charitable  or  religious  purposes. Notices  were issued by the Collector under the West  Bengal Estates  Acquisition Act, 1953, to the  appellants,  calling upon  them to hand over possession of the wakf  estates,  on the  ground  that  under  s. 4 of  the  Act,  there  was  an extinction  and cesser of the estate and the rights  of  the appellants,  and  that  their divested  estates  and  rights vested  in the State. The appellants claimed that they  were protected  by  s.  6(1)(i)of the  Act,  because,  they  were holding  the properties exclusively for purposes which  were charitable  or religious or both. The claim was rejected  by the  Collector,  by the Commissioner on appeal, and  by  the High Court under Art. 226 of the Constitution. In the appeal to the Supreme Court,     HELD:  The  purposes  described in the  deeds  were  not covered by the expression "religious purpose", and they were not exclusively for charitable purposes. Mingled with  those purposes  were some which were secular and some, which  were family  endowments, of a very substantial character. As  the provisions  about the family had not become  inoperative  by the  exhaustion  of the beneficiaries, the  deeds.  as  they stood,  could not be said to come within exemption  claimed. [317 F-H].     The provisions of the Act apply notwithstanding anything to  the  contrary  contained  in any other  law  or  in  any instrument  and notwithstanding any usage or custom  to  the contrary.  The  Act  must, therefore, be  construed  on  its

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actual  words  and the exemption cannot be  enlarged  beyond what   is  granted  there.  No  doubt,  the  definition   of "Charitable   purpose"  is  not  exhaustive  like  that   of "religious  purpose" but the expression "public utility"  in the  definition of "charitable purpose" gives a guidance  to the  meaning and purpose of the exemption. It  leaves  scope for  addition  but  it  does not  make  for  enlargement  in directions  which  cannot be described  as  "charitable".  A provision for the family of the wakif or for himself  cannot be  regarded as "relief of poor", "medical relief"  or  "the advancement  of education" under the definition.  It  cannot also  be regarded as an expenditure on an object of  general public  utility.  It is true that after the passing  of  the Mussalman  waqf  validating Act, 1937, wakfs, in  which  the object  was  the aggrandisement of the  families  of  wakifs without  any  pretence  of charity in  the  ordinary  sense, became  valid and operative. But, the intention was  not  to give  a  new meaning to the word "Charity" which  in  common parlance  is  a  word  denoting  a  giving  to  someone   in necessitous  circumstances and in law, a giving  for  public good.  A private gift to one’s own self or kith and kin  may be meritorious and pious, but is not a charity in the  legal sense and Courts in India have never regarded such gifts  as for  religious  or  charitable  purposes,  even  under   the Mahomedan Law. [313 B, H; 314 A; 316 F-H; 317 D]. 308

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 392 and 393 of 1954.      Appeals  by special leave from the judgment  and  order dated  March 26, 1962, of the Calcutta High Court  in  Civil Revision Nos. 3176 of 1958.      G.S.  Chatterjee and S.C. Mazumdar, for  the  appellant (in C.A. No. 392/64).      N.C. Chatterjee and S. (7. Mazumdar, for the  appellant (in C.A. No. 393/64).      C.K. Daphtary, Attorney-General, B. Sen, S.C. Bose  and P.K. Bose, for the respondents (in C.A.. 392/64).      B. Sen, S.C. Bose and P.K. Bose, for the respondent (in C.A. No. 393/64). The Judgment of the Court was delivered by     Hidaytullah, J. these two appeals the appellants seek to displace  a common judgment and order of the High  Court  of Calcutta  dated March 26, 1962 by which a Full Bench of  the Court,  specially constituted to hear and determine  certain petitions  under  Art. 226 of the Constitution  involving  a common  point of law, discharged the Rule issued earIier  in them. These cases were concerned with Muslim wakfs in  which either  the  ultimate benefit to charity is  postponed  till after  the exhaustion of the wakif’s family and  descendants or  the  income  from the wakf estate  is  applied  for  the maintenance of the family side by side with expenditure  for charitable or religious purposes. The common question  which arose  and still arises is whether these wakfs are  affected by  the passing of the West Bengal Estates Acquisition  Act, 1953  (West Bengal Act I of 1954). ?hat Act, in common  with similar Acts of other States in india abolished from a  date notified by the State Government all intermediaries such  as proprietors, tenure-holders etc. between the raiyat and  the State  and  vested  the  estates  and  the  rights  of   the intermediaries  in  the State free from  all  incumberances. Section  3  of  the Act provided that the Act  was  to  have

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effect notwithstanding anything to the contrary contained in any  other law or in any contract express or implied  or  in any  instrument and notwithstanding any usage or  custom  to the  contrary. There were, however, some exceptions and  one such  exception  was that an intermediary  was  entitled  to retain,  with effect from the date of vesting, land held  in khas  under a trust or endowment or other  legal  obligation exclusively for a purpose which was charitable or  religious or both.     Notices  under  s. 10(2) of the Act were issued  by  the Collectors in charge, Estate Acquisitions, to the respective Mutwallis informing them that after the notification  issued on  November  II,  1954  under s. 4 of  the  Act  there  was extinction and cesser of the estate 309 and  rights  of  these  intermediaries  and  their  divested estates and rights vested in the State. The Mutawallis  were called upon by said notice or order to give up possession of these estates and interests within 60 days of the service of the order, to the officer empowered by the Collector in this behalf. The orders also specified     in schedules  appended thereto,  the  details  of such  properties,  interests  and rights.  Notices  of this kind were issued to  Fazlul  Rabbi radhan,  Mutawalli  of  Abdul  Karim  Wakf  Estate,  who  is appellant      a Civil Appeal No. 392 of 1964 and to  Kawsar Alam, Mutawalli of Penda Mohammad Wakf Estate, appellant  in Civil Appeal No.393 of 1964. Similar notices were issued  to other  mutawallis in respect of other wakfs. The  mutawallis appeared in answer to the notices and objected to them. They claimed  that they were protected by s. 6(1)(i) of  the  Act (to which detailed reference will be made (resently) as they were  holding the properties exclusively for purposes  which were  charitable  or religious or both. This claim  was  not accepted by the Collector, Estate Acquisitions, and  appeals to the commissioner also failed. The orders of the Collector and the Commissioner are dated February 24, 1956 and January 18, 1958 respectively.      The  appellants  after serving notices  of  demand  for justice filed petitions in the High Court under Art. 226  of the  Constitution. The petitions came up for hearing  before D.N.. Sinha J. and were refered, on his recommendation, to a Full  Bench  consisting  of Bachaat,  D.N.  Sinha  and  P.N. Mookerjee   JJ.  These  learned  Judges  by   separate   but concurring  judgments held that the wakfs in  question  were not protected by s. 6(1)(i) as they were not exclusively for purposes  which  were charitable or religious  or  both  and discharged  the  Rule. The cases  were,  however,  certified under  Art. 133(1)(a) and (c) of the Constitution and  these two appeals were filed.      It is not necessary to state how the Act is constructed for  the’ only question is whether the wakfs can be said  to be   exclusively  for   purposes  which  are  religious   or charitable  or both and thus exempted from the operation  of the Act by virtue of s. 6(1)(i) which reads "6. Rights of intermediary to retain certain lands.                    (1) Notwithstanding anything contained in               section 4 and 5, an intermediary shall, except               in the cases mentioned in the proviso to  sub-               section   (2)   but  subject  to   the   other               provisions of that sub-section, be entitled to               retain with effect from the date of vesting--                       (i)   where  the  intermediary  is   a               corporation  or  an  institution   established               exclusively  for a religious or  a  charitable               purpose or both, or

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             310                            is a person holding under a trust               or  an  endowment or  other  legal  obligation               exclusivey  for a purpose which is  charitable               or religious or both land held in khas by such               corporation  or  institution, or  person,  for               such purposes."               Section 2(c) defines "charitable purpose"  and               s. 2(n) "religious purpose". These definitions               are:                 "2(c)  "charitable  purpose"  includes   the               relief   of  poor,  medical  relief   or   the               advancement  of  education  or  of  any  other               object of general public utility;"               "2(n)  "religious  purpose"  means  a  purpose               connected with religious worship, teaching  or               service   or  any  performance  of   religious               rites;"  If  this concession is not available then  the estate  must vest  in the State Government under ss. 4 and 5 of the  Act. The former section invests power in the State Government  to notify  the date from which the estates and rights of  every intermediary   are  to  vest  in  the  State  free  of   all incumberances and the latter says that upon due  publication of  the notification the vesting takes place from  the  date notified. This has been done.     The  wakfs in these two appeals are dissimilar in  their terms  but  both provide for application or income  for  the support of the wakifs and their families. In the Abdul Karim Wakf (Civil Appeal 392 of 1964) the value of the property is shown  as Rs. 1,00,000 and a ceiling of Rs. 4,500 is  placed by  the  wakif  on  expenditure  per  year  (el.  12).   The mutawalliship  and the Naib mutawalliship run in the  family from  generation  to generation first in the male  line  and after  exhaustion of the male line in the female  line.  The charities  mentioned  specifically or  generally  require  a stated  expenditure of Rs. 904 per year. The wakif  has.  in addition,  provided  for an expenditure of Rs.  2,000  at  a time,  for  the solace of his own soul and  for  his  burial ceremonies  etc.  Rs. 25 have been ordered to  be  spent  on Milad every year.     As regards secular expenses the deed directs that 10 per cent of the income is to be kept as d reserve fund and  from savings from the income other properties are to be purchased (cl.  19).  The  mutawalli and the  Naib  mutawalli  are  tO receive 8 per cent of the income in proportion of 5:3.  Then follow numerous dispositions for the benefit of the  family. They are:                  "15.  My wife Bibi Jainulnessa wilt get  as               long  as she is alive, Rs. 1,200  annually  at               the  rate  of  Rs.  100  per  month  and  Bibi               Taherankhatun,  the  widow of my  eldest  son,               will  get  as long as she is  alive,  Rs.  480               annually (Rupees four hundred eighty only)  at               the  rate  of Rs. 40 per month.  Such  monthly               allowances               311               will be stopped after their death. After their               death their heirs will not get any portion  of               the aforesaid monthly allowances.                  "16. Each of my three sons Shriman Tojammal               Hossain  Prodhan, Shriman Ahmad Yasin  Prodhan               and  Shriman Azizul Huq Prodhan, will get  Rs.               24 per cent out of the net income of the  wakf               estates  (after payment of revenue, cess  etc.

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             which are current at present or will be levied               in  future  and  after meeting  the  costs  of               administration). Shriman Abu Alam Prodhan, the               only  son  born of the loins  of  my  deceased               second  son will similarly get at the rate  of               Rs. 7 per cent out of the net income.                  "18. A fund will be created with a  deposit               at  the rate of Rs. 3 (Rupees three only)  per               cent,  out  of the annual net income  for  the               purpose  of education of the sons of my  sons,               sons of my daughters, sons of the daughters of               my  sons and my great-grandsons (in  the  male               line). The Mutawalli and the Naib Mutawalli in               consultation with each other will render  help               as far as possible to the boy amongst them who               will be meritorious and has zeal for education               according  to  his standard of  education.  If               there be any surplus the same will be kept  in               deposit  in  the wakf estate for  meeting  the               expenses of education of the future heirs.  If               after  graduation he goes to England,  France,               Germany, America, Japan, Australia  and  other               progressive  countries for  higher  education,               then  the  Mutawalli and  the  Naib  Mutawalli               will,  in consultation with  each other,  help               him as far as possible.,                  "20. The provision made for allowances  for               my  aforesaid  three  sons  and  my   grandson               Shriman  Abu  AIam Prodhan in  Schedule  (Kha)               will vest, after their death in the respective               sons  and grandsons in the male line  equally.               If any of them has no son or grandson, in that               case  after  his death if his wife  lives  and               continues to follow her own religion, she will               get   one-eighth   share  of   the   aforesaid               allowance  as  long  as  she  is  alive.   The               remaining seveneighth share and in the absence               of his wife, sixteen annas share will vest  in               the  wakf estate. Daughters born of them  will               not  get  the said allowance  (in  the  female               line)." In the Penda Mohammad Wakf Estate (Civil Appeal 393 of 1964) the  value  of  the property is shown  as  Rs.  40,000.  The expenditure on charities and religious purposes is about Rs. 3,700 per year. 312 These  are  specified in Schedule Kha. The pay of  the  Naib Mutawalli  is fixed at Rs. 300 per year.  The  Mutawalliship and  the Naib Mutawalliship run in the family and  Mutawalli holding   office  can  appoint  his  successor.  The   other important  clauses  of  the  wakf  namah  dealing  with  the application of the funds are:                  "(9) The Mutawalli shall from the income of               the  wakf  property pay at first  revenue  and               other  legitimate  government  and   zamindary               dues.                 "(10)  The Mutawalli shall pay all  expenses               required  for  the  maintenance  of  the  wakf               property  and the Mutawalli shall get ten  per               cent of such expenses. The Mutawalli shall pay               Rs. 25 (Rupees twenty five only) per month  to               the Naib Mutawalli as his remuneration.                  "(12)  The  Mutawalli will be  entitled  to               take  as  his  own  remuneration  the  balance               remaining after deducting expenses under items

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             Nos.  (9)  and  (10) as  well  expenses  under               Schedule (ka) and (kha) below from the  income               of  the Wakf property and he will be  entitled               to spend the sum for his own work. In Schedule Ka dispositions are made for the family and  the various clauses run as follows:                  "(1)  My  grandson  Jaman  Ajimuddin  Ahmed               shall  get  a  sum  of  Rs.  200  (Rupees  two               hundred)  per month as his tankha  (allowance)               that is the cost of his maintenance and on his               demise  his  heirs shall get the  said  tankha               generation  after  generation and  by  way  of               succession for ever.                   (2) My daughter Sreemati Hiramannessa Bibi               shall  get  Rs. 25 (Rupees  twenty  five)  per               month  for her maintenance and on  her  demise               her  heirs  shall  continue to  get  the  said               tankha generation after generation for ever by               way of succession.                   (3)  My second wife  Srimati  Bibijannessa               Bibi  shall  get Rs. 30  (Rupees  thirty)  per               month  during her life time as tankha that  is               as costs of her maintenance and on her  demise               none  of her heirs shall get the same  and  it               will be included in the Wakf Estate".     It  was  not claimed before us in these cases  that  the provisions  about the family have become inoperative by  the exhaustion  of  the  beneficiaries and  we  proceed  on  the assumption  that the families the wakifs do still enjoy  the benefits.  In these circumstances, the question  is  whether these  trusts  can  be described as  those  exclusively  for religious or charitable purposes or both. If they can be  313 so described s. 6(1)(i) would exempt them from the operation of the Act; otherwise, in view of the provisions of ss. 3, 4 and 5 the estates of the intermediaries vested in the  State on the appointed date.     As  already  stated  the provisions  of  the  Act  apply notwithstanding  anything to the contrary contained  in  any other law or in any instrument and notwithstanding any usage or  custom  to  the contrary. The Act  must,  therefore,  be construed  on its actual words and the exemption  cannot  be enlarged  beyond  what is granted there.  The  exemption  is given   to   Corporations   and   institutions   established exclusively for a religious or a charitable purpose or  both but to this kind of eleemosynary foundations no mutawalli in either deed can lay claim. The matter can thus only come in, if  at all, within the words of the exempting  clause  which read:        "   ......   a  person  holding  under  a  trust   or endowment  or  other  legal  obligation  exclusively  for  a purpose which is charitable or religious or both?’ The  word  "exclusively"  limits the  exemption  to  trusts, endowments  or  other legal obligations  which  come  solely within charitable or religious purposes. These purposes  are defined by s. 2(c) and (n) and the definitions have  already been  reproduced. It is quite dear (and indeed the  contrary was not suggested at the Bar) that the expression "religious purpose" cannot cover these two cases. The definition is  an exhaustive  one and to satisfy the requirement  the  purpose must  be  connected  with  religious  worship,  teaching  or service  or  performance of religious  rites.  No  religious worship,  teaching  or service or performance  of  religious rites is involved when the wakif provides for his family  or himself  even  though  a person giving  maintenance  to  his

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family  or himself is regarded in Mahomedan Law as giving  a sadaqah.  But even if regarded as a pious act a  sadaqah  of this  kind  is  not  a religious worship  or  rite.  In  our opinion,  neither  of the deed makes  a  disposition  coming within the description "exclusively for religious purposes". This leaves over for consideration whether they come  within the expression "charitable purposes".      The  definition  of "charitable purposes"  in  the  Act follows,  though  not quite, the  well-known  definition  of charity  given  by  Lord  Macnaghten  in  Commissioners  for Special  Purposes  of Income Tax v.  PemseI(1),  where  four principal divisions were said to be comprised-trusts for the relief of poverty; trusts for the advancement of  education; trusts for the advancement of religion; and trusts for other purposes  beneficial to the community not falling under  any of the preceding heads. The definition in this Act makes one significant  change when it speaks of "public  utility"  and this  gives a guidance to the whole meaning and  purpose  of the exemption. No doubt the definition is not an  exhaustive one  like  the definition of ’religious purposes’.  It  only speaks  of  what may be included in it besides  the  natural meaning of the words. It [1891] A.C. 531.at 583. 314 is  quite  clear that the provision for the  family  of  the wakif  or  for    himself cannot be regarded as  ’relief  of poor’,  ’medical relief’ or the ‘advancement of  education’. It  cannot also be regarded as an ex-penditure on an  object of  general  public  utility. The definition  as  it  stands cannot obviously comprehend such dispositions.     But  it  is  contended by Mr. N.C.  Chatterjee  that  in giving a meaning to the expression "charitable purposes"  we must be guided by the notions of Mahomedan Law and he relies upon  the observation of Sir George Rankin in Tribune  Press Trustees,  Lahore  v.I.T.  Commissioner(1).  Mr.  Chatterjee claims  that provision for the wakif and the wakif’s  family is  a charitable purpose according to Mahomedan Law. In  the Tribune   case  the  Judicial  Committee  was  required   to interpret  s. 4(3)(i) of the Indian Income-tax Act 1922  (XI off 1922). That section provided:                  "(3)  This  Act  shall  not  apply  to  the               following classes of income:--                    (i) Any income derived from property held               under  trust or other legal obligation  wholly               for  religious or charitable purposes, and  in               case of property so held in part only for such               purpose,  the income applied, or  finally  set               apart for application, thereto.               In   this  sub-section  ’charitable   purpose’               includes   relief  of  the  poor,   education,               medical  relief,  and the advancement  of  any               other object of general public utility." In  dealing  with  the will of Sardar Dayal  Singh  who  had constituted a trust to maintain the Press and the Newspaper, "keeping  up  the liberal policy of the said  newspaper  and devoting  the surplus income  ......  in improving the  said newspaper   ......  ", the question had arisen  whether  the running  of  a  newspaper was an object  of  general  public utility  or  whether  it was to be  treated  as  a  business concern.  The  High  Court  at Lahore  was  divided  in  its opinion. Learned Judges in favour of granting the prayer for exemption  were  of the opinion that the true test  was  not what the Court considered to be an object of public utility, but what the testator thought to be. The Judicial  Committee pointed out that in reaching this view those learned  Judges

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were following what Chitty J. said in In re Foveaux, etc.(2) and  further  that  that case was dissented  from  in  later cases.  In  these latter cases it was held that  though  the private  opinion of the Judge was  immaterial,  nevertheless for a charitable gift to be valid, it must be shown (1) that the gift was for public benefit, and (2) that the trust  was one of which the Court could, if  (1)L.R. 66 I.A. 241 at P. 252. [1895] 2 ch. 501,  315 necessary undertake and control otherwise trusts to  promote all  kinds  of "fantastic" objects in  perpetuity  would  be established. The Judicial Committee acceded to this view but pointed out further:-.--                     "It  is to be observed,  moreover,  that               under  the Incometax Act the test  of  general               public  utility  is  applicable  not  only  to               trusts  in  the English sense, but  is  to  be               applied to property held under trust "or other               legal   obligation"--a  phrase   which   would               include Moslem wakfs and Hindu endowments. The               true  approach  to  such-questions,  in  cases               which  arise  in countries  to  which  English               ideas--let  alone English  technicalities--may               be  inapplicable, was considered by the  Board               in Yeap Cheah Neo v. Ong Cheng Neo(1), and  it               was  well said by Sir Raymond West  in  Fatima               Bibi  v. Advocate General of  Bombay(2);  "But               useful  and  beneficial  in  what  sense?  The               Courts   have   to   pronounce   whether   any               particular object of a bounty falls within the               definition;  but they must, in general,  apply               the  standard  of  customary  law  and  common               opinion  amongst  the community to  which  the               parties interested belong."     Relying on this passage Mr. Chatterjee contends that  if the Mahomedan Law regards gifts for the benefit of the wakif and his family as "charity" it is not for the Courts to  say that they are not and he claims exemption for the wakfs.  He relies upon the precept of the Prophet--"A pious offering to one’s family, to provide against their getting into want, is more  pious than giving alms to beggars. The most  excellent of sadkah is that which a man bestows upon his family’.     Now it is a matter of legal history that wakfs in  which the benefits to charity or religion were either illusory  or postponed indefinitely, while the property so dedicated  was being enjoyed from generation to generation by the family of the  wakif,  were regarded as opposed to  the  rule  against perpetuities  as contained in the Indian Succession and  the Transfer  of  Property  Acts.  This was  so  declared  in  a succession  of  cases  by the  Judicial  Committee  and  the opinion  of  Amir Ali expressed in his  Tagore  Lectures  as well’  as  in  Meer Mahomed Israeli  Khan  v.  Shasti  Churn Ghore(3)  and  Bikani  Mia  v.  Shukul  Poddar(4)  was   not accepted. These cases are referred to in the three  opinions in  the High Court and most important of them is  Abul  Fata Mahomed  Ishak  and  Others v. Bussomoy  Dhur  Chowdry,  and others(5).  In  that case Lord Hobhouse,  while  emphasising that (1) [1875] L.R. 6 P.C. 381. (2) [1881] I.L.R. 6 Bom. 42, 50 (3) 19 Cal. 412. (4) 20 Cal. 116. (5) 22 I.A. 76. 316 Mahomedan   Law   ought  to  govern   a   purely   Mahomedan

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disposition, declined to hold that disposition in which  the benefit  was  really  intended to go to the  wakif  and  his family  could be described as charity even under  that  law. Speaking  of  the precept above quoted by us  Lord  Hobhouse observed:                     "   ......  it would be doing  wrong  to               the  great  lawgiver  to suppose  that  he  is               thereby  commending gifts for which the  donor               exercises  no self-denial; in which  he  takes               back with one hand what he appears to put away               with  the other; which are to form the  centre               of attraction for accumulations of income  and               further  accessions of family property;  which               carefully  protected so-called  managers  from               being called to account; which seek to give to               the  donors and their family the enjoyment  of               property free from all liability to creditors;               and  which do not seek the benefit  of  others               beyond the use of empty words." Similar  observations were made by Lord Hobhouse in L.R.  17 I.A.  25 and by Lord Natson in L.R. 19 I.A. 170  in  earlier cases.     These cases led to agitation in India and the  Mussalman Wakf  Validating  Act,  1913 (VI of  1913)  was  passed.  It declared  the  rights of Mussalmans to make  settlements  of property  by  way  of  wakf in  favour  of  their  families, children and descendants. For the purposes of the Validating Act  the  term  ’wakf’ was defined to  mean  "the  permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law  as religious,  pious or charitable". This gave a wider  meaning to the word wakf but only for the purpose of taking them out of  the   validity which would have  otherwise  existed  and which was already authoritatively stated to have so existed.     After  the passage of these two Acts wakfs in which  the object was the aggrandisement of families of wakifs  without a pretence of charity in the ordinary sense became valid and operative.  But the intention of the Validating Act was  not to give a new meaning to the word "charity" which in  common parlance  is  a  word  denoting a  giving  to  some  one  in necessitous  circumstances  and in law a giving  for  public good.  A private gift to one’s own self or kith and kin  may be  meritorious and pious but is not a charity in the  legal sense and the Courts in India have never regarded such gifts as  for  religious, or charitable purposes  even  under  the Mahomedan Law. It was ruled in Syed Mohiuddin Ahmed and Ant. v. Sofia Khatun(1) that neither the Wakf Validating Act 1913 nor  the Shariat Act 1937 had the effect of  aborgating  the Privy  Council  decisions  on  the  meaning  of  "charitable purpose" as such.     We  do  not say that the English authorities  should  be taken  as the guide as was suggested in soms of these  cases at one time. For (1) 44 C.W.N.974. 317 one  thing,  the law was developed in  the  Chancery  Courts without  the  assistance of any  statutory  definition.  The earliest statute on the subject is one of 1601 in the forty- third  year  of the reign of Queen Elizabeth I  and  in  its preamble  it  gave a list of charitable objects  which  came within  the purview of that Act, and for another, Courts  in England  extended these instances to others by  analogy  and the  subject  is  often  rendered  vague  and  difficult  to comprehend. A clear guide is available to us in India in the interpretation  of  the  almost similar  provisions  of  the

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Indian Income-tax Act 1922 already quoted. The  observations of  Sir  George Rankin in the Tribune, case, on  which  much reliance is placed by the appellants were intended to convey the  same caution about English cases which we have  sounded here. The Judicial Committee did not intend to lay down that the  words of a statute so precise in its definition  should be  rendered  nugatory  by leaving  room  for  inclusion  in "charitable  purposes", objects which by no means  could  be charity in the generally accepted legal sense. No doubt  the definition  which  is common is not  exhaustive  and  leaves scope  for addition but it does not make for enlargement  in directions which cannot be described as "charitable".     This view of the definition was taken in respect of  the analogous  provision of the Indian Income-tax Act.  In  D.V. Arur v. Commissioner ’of Income-tax(1) and in re  Mercantile Bank  of  India (Agency) Ltd.(2)it was laid  down  that  for satisfying the test of charitable purpose there must  always be some element of public benefit. Indeed it must be so,  if family endowments which are in effect private trusts are not to pass as charities which, as was observed in  Mujibunnissa and Ors. v. Abdul Rahim and Abdul Aziz(3), it is superfluous in the present day to say, is not the law.     When  the  two deeds are examined and  their  provisions considered  in the light of these principles, it  is  easily seen that they are not exclusively for charitable  purposes. They  do provide in part for objects which are religious  or charitable or both but mingled with those purposes are  some which are secular and some which are family endowments  very substantial in character. If the latter benefits had  ceased or  the  families  had  become  extinct  leaving  only   the charities  or  if  the provisions were for  poor  and  needy though belonging to the wakif’s family, other considerations might conceivably have arisen, as was stated by Bachawat  J. in his opinion. The deeds as they stand cannot, however,  be said to come within the exemption claimed.     The  appeals must, therefore, fail. They  are  dismissed but in the circumstances we direct parties to bear their own costs.                        Appeals dismissed. (1) I,A.R. (1916) Bom. 44. (2) [1942] 10 I.T.R. 512. (3) 21 I.A. 15 at p, 26. 318