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PETITIONER: NAWAB ZAIN YAR JUNG AND OTHERS

       Vs.

RESPONDENT: THE DIRECTOR OF ENDOWMENTS AND OTHERS

DATE OF JUDGMENT: 09/04/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N. AYYANGAR, N. RAJAGOPALA

CITATION:  1963 AIR  985            1963 SCR  Supl. (1) 469  CITATOR INFO :  D          1976 SC1569  (58)

ACT: Trust      Property-Wakf     and      Public      Charitable Trust--Distinction-Rule  of interpretation of  documents-The Wakf  Act,  1954  (29 of 1954), ss.  3(1),  9,  28-Hyderabad Endowment Regulation, 1348-F (1939).

HEADNOTE: The  appellants  were  appointed trustees by  the  Nizam  of Hyderabad  by a trust deed executed on Tune 14,  1951.   On March  2,  1959, respondent No. 1, who was the  Director  of Endowments  and joint Secretary, Board of Revenue, served  a notice  on the appellants calling upon them to register  the said 470 trust  under  the  Hyderabad  Endowment  Regulation,  1348-F (1939)  and to render accounts of the same.  The  appellants contended  that  the  trust was not  governed  by  the  said Regulation.   Thereupon the first respondent scaled 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  1 to 3 filed a writ petition in the  High  Court and  prayed for a writ of prohibition and  certiorari.   The fourth  appellant was subsequently appointed  an  additional trustee  and added as a petitioner.  The writ  petition  was dismissed  by the High Court which held that s. 6 of Part  B 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not apply, and  the  Hyderabad Endowment  Regulation and the Rules framed thereunder  could not  be said to have been repealed.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 and 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

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Board,  Hyderabad, constituted under s. 9 of the  Wakf  Act, 1954, wrote to the Secretary of the trust that the trust was a 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 a Wakf  and  the provisions of the Wakf Act did not apply to it.  Under these circumstances, the Wakf Board was also made a party in  this Court.  But the parties agreed that if the trust was held to be  a 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 inapplicable to the trust and the appeal would have to be allowed; on the other hand, if it was  held that the trust was not a Wakf and the provisions of the Wakf Act were not applicable to it, its registration under s.  28 would be invalid. Held,  that  the trust created is not a Wakf but  a  secular public charitable trust.  The Wakf Act, 1934, does not apply to  it,  and  its registration under s. 28  is  invalid  and inoperative.   The whole scheme of the trust deed vests  the title in the trustees and gives them absolute discretion  to use  the  said  property  and its  income  for  any  of  the charitable purposes 471 specified  in the document.  The dominant intention  of  the settler 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 a Wakf The appointment  of  non-Muslims  as trustees  is  indicative  of the fact that a  Wakf  was  not intended.   The document calls the author of the  trust  the settlor and the appellants trustees and that introduces  the concept  of  the trust as contemplated by English  Law,  and that is against the concept of a Wakf. Vidya Varuthi Thirtha v. Balusami Ayyar, (1921) L. R. 48  I. A. 302, referred to. It  is  an  elementary  rule of  construction  that  if  two constructions  arc 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.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 109 of 1961. Appeal  by special leave from the Judgment and  order  dated October  20, 1959, of the Andhra Pradesh High Court in  Writ Petition No. 337 of 1959. C.   K.   Daphtary;  Solicitor-General  of  India,   A.   V. Viswanatha Sastri, Anwaruallah Pasha, S. Ranganatham, J.  B. Dadachanji,  O.  C.  Mathur and  Ravinder  Narain,  for  the appellants. D.   Narsaraju,  Advocate-General  for the State  of  Andhra Pradesh, G. R. Ekbote, D. Prasanna Kumari, D.  Venkatappayya Sastri and P. D. Menon, for respondents Nos.  1 and 2. G.   S.  Pathak,  S.  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 a writ filed by the appellants in that Court.  The  four

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appellants are 472 the Trustees appointed by the Nizam of Hyderabad by a 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 Revenue, served a 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  a  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 Regulation.   Thereupon,  the  first respondent  issued  an  order  on March  23,  1959,  and  in pursuance  of it, sealed 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 scrutinize 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 a 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 March 23, 1959.  The 4th appellant  was subsequently   appointed  an  additional  trustee  and   was thereafter  added  as a petitioner to the said  petition  on October 12, 1959. In their writ petition, the appellants alleged that the said Regulation had ceased to be operative 473 in Hyderabad by reason of section 6 of Part B States  (Laws) Act  1951  (No.   III of 1951) which had  been  extended  to Hyderabad  as from 1st April, 1951.  Section 6 of  the  said Act  provides that if immediately before the appointed  day, there was in force in any Part B State any law corresponding to any of the Acts or Ordinances now extended to that State, that  shall,  save as otherwise  expressly  provided,  stand 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 1920).  Subsequently, by Central Act  If 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 corresponded to the Hyderabad Endowments Regulation and  so, by  virtue  of the provisions of s. 6 of the Part  B  States (Laws) Act, the said Regulation stood repealed as from April 1,  1951.  According to the appellants, the said  Regulation and  the Rules framed thereunder were ultra vires  also  for the  reason  that  they were violative  of  the  fundamental rights  guaranteed  by  Articles  14,  19  and  31  of   the Constitution.   It  is  broadly on these  grounds  that  the appellants based their claim for an appropriate writ against both the respondents. On  the  other  hand, the  respondents  contended  that  the Regulation   and  the  Rules  framed  thereunder  were   not

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coextensive  with the provisions of the Acts which had  been extended  to Hyderabad by the Part B 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. 1, it was the 474 respondents’  case that the said orders were  justified  and 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 records   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 B  States  (Laws) Act  did  not  apply and so, the Regulation  and  the  Rules framed  thereunder cannot be said to have been repealed,  as from April 1, 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  dismissed the  writ petition filed by the appellants.  The  appellants then applied for a certificate to the High Court, but  their application was rejected.  That is why the appellants  moved for  and  obtained special leave from this Court and  it  is with  the special leave thus granted to them that they  have come to this Court by the present appeal.  The appeal  seeks to 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 B. 9 of the Wakf Act, 1954  (Central  Act No. 29 of 1954), wrote to the Secretary of the Trust that in the  opinion of the Board, the Trust was a Wakf  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  trust should be registered.  In March, 1959, however, the Board 475 sent  a  further communication to the Secretary  and  called upon  him to get the trust registered.  The  appellants  did not comply with this requisition.  On December 18, 1960, the Board purported to exercise its authority under s. 28 of the Wakf Act and itself caused the registration of the trust  to be  made.   The registration so made was  published  in  the Andhra  Pradesh  Official  Gazette  on  January  12,   1961. Respondent No. 2 then moved the Andhra High Court by a  writ petition No. 791 of 1961 for quashing the said  registration of the Trust.  It urged that the trust in question was not a wakf   and  so,  the  provisions  of  the  Wakf   Act   were inapplicable   to  it;  and  thus,  the  validity   of   the registration of the trust became a matter of dispute between the Wakf 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 stated that the registration 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

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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 Board be permitted to  be  added  as a party to the appeal, and  that  all  the parties should be permitted to file additional statements in the  case  within  the time  specified.   When  the  parties obtained this order by consent, it was understood that  they would make the 476 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 that all the points of dispute between the parties  would be decided by this Court and so, the final decision of  this Court  would govern the decision of the writ petition  filed by  respondent  No. 2 in the Andhra High Court  against  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 a  wakf within  the meaning of the relevant provisions of  the  Wakf Act and its registration under a. 28 is found to be  valid,, the  impugned  Regulation and the  Rules  framed  thereunder would  be  inapplicable to the said trust and  so,  in  that event, the appeal would have to be allowed.  If on the other band,  it is held that the trust is not a wakf and that  the provisions of the Wakf Act are inapplicable to it, then  its registration  under s. 28 of the said Act would be  invalid, and the contentions which the appellants initially wanted to raise in their appeal would fall to be 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  a  wakf  as meaning a permanent dedication by a 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)   a wakf by user;               477               (ii)  mashrut-ul-khidmat; and               (iii) a wakf-alal-aulad to the extent to which               the  property  is dedicated  for  any  purpose               recognised by Muslim law as pious,  religious,               or charitable; and  "wakif  "  means any  person  making  such  dedication. Consistently  with this definition "wakf",  a  "beneficiary" has been defined by s. 3(a)as meaning a person or object for whose  benefit a wakf is created and it includes  religious, pious and charitable 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 a 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,  the wakf contemplated by the Act can  be  either

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"Shia  wakf  " or "’Sunni wakf : Shia wakf  meaning  a  wakf governed by Shia law Cs. 3(j)] and Sunni wakf meaning a wakf governed  by  Sunni law [s. 3(k)].  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 making such enquiry  as  he  may consider necessary submit his report to the State Government containing  the  specified particulars-amongst them  is  the particular  in  regard to the number of wakf in  the  State, showing the Shia wakfs and Sunni wakfs separately.  It would thus   be  clear  that  the  preliminary  survey  of   wakfs contemplated  by s.4 is intended to collect data  about  the wakfs in the State to divide them into Shia wakfs and  Sunni wakfs separately.  Then in regard to the appointment of  the members of the Board with which s. II deals, the proviso  to the said section lays down that in determining the number of Sunni members 478 or  Shia  members is the Board, the State  Government  shall have regard to the number and value of Sunni wakfs and  Shia wakfs to be administered by the Board.  Sections 6  provides for the settlement of a dispute is regard to the question as to  whether a wakf is a Shia wakf or a Sunni wakf and a.  15 which  deals  with  the  functions  of  the  Board  has   an explanation  which  provides that the powers  of  the  Board shall be exercised- (i)  in  the case of a Sunni wakf, by the Sunni  members  of the Board only; and (ii) in the case of a Shia wakf, by the Shia members of  the Board only. it  is thus clear that the wakf contemplated by the Act  can be  either  a Shia wakf or a Sunni wakf and  the  provisions with  regard to the management of the wakf  are  accordingly made on that basis. The  Muslim  character  of the  wakf  is  also  emphatically brought  out  by certain other provisions of the  Act.   The proviso  to  B.  15(1),  for  instance,  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 wakf,  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 property for more than three years or mortgage  or exchange  properties according to the provisions  of  Muslim ’law-.  Section 21 requires that there shall be a  Secretary to the Board who shall be a Muslim and he shall be appointed by the State Government in consultation with the Board ; and s. 13 provides that a person shall be disqualified for being appointed  a  member  of the Board if he is  not  a  Muslim. There can, therefore, be no doubt that the wakfs with  which the  Act deals are trusts which are treated as  wakfs  under the definition of s. 3(1) and as such, a trust                             479 which  does  not satisfy the tests prescribed  by  the  said definition  would be outside the Act.  This position is  not disputed. At this stage, it is necessary to distinguish between  wakfs recognised by Muslim law and religious endowments recognised by Hindu Law on the one hand and public charitable trusts as contemplated 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  a  "trust"  in  the  sense  in  which  the expression  is used in English law, is unknown to the  Hindu

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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, etc................ When the gift is directly to an idol  or a  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 or vested in’ him, nor is he a trustee  in  the English  sense  of  the  term,  although  in  view  of   the obligations and duties resting on him, he is answerable as a trustee in the general sense for maladministration." (p.  31 1 ). Thus, these observations show that the basis concept of a  religious endowment under Hindu Law differs in  essential 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  Mohammadan laws owes its origin to a  rule  laid down by the (1)  (1921) L.R. 48 I.A 302 480 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." As a  result of the creation of a wakf, the     right    of   wakif    is extinguished  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 belong into the  wakf;  the property is not vested in him and he is not a trustee in the legal  sense." Therefore there is no doubt that the wakf  to which  the Act applies is, in essential features,  different from the trust as is known to English law. Having  noticed this broad distinction between the wakf  and the secular trust of a public and religious character, it is necessary  to  add  that  under  Muslim  law,  there  is  no prohibition  against the creation of a trust of  the  latter kind.  Usually, followers of Islam would naturally prefer to dedicate their property to the Almighty and create a wakf in the  conventional Mahommedan sense.  But that is not to  say that  the  followers of Islam is precluded from  creating  a public, religious or charitable trust which does not conform to  the conventional notion of a wakf and which purports  to create a public religious charity in a 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 a wakf to which the provisions of  the Act apply or is it a 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 trust if; created by the Nizam, it is necessary to 481 read its material portion.  Clauses 1 to 4 are relevant  for our purpose:-               "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   settler"   which               expression  shall  unless  repugnant  to   the

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             context  or  meaning  thereof  be  deemed   to               include  his heirs, executors and  administra-               tors) of the one part and Nawab Zain Yar  Jung               Bahadur  of Hyderabad, Muslim, inhabitant  and               Vapal Pangunni Menon of the Bangalore, Hindus,               inhabitant  (hereinafter called "the  Trustees               which expression shall unless repugnant to the               context  or  meaning  thereof  be  deemed   to               include the survivors or survivor of them  and               the  Trustees  for  the time  being  of  these               presents   and   the  heirs,   executors   and               administrators  of the last surviving  Trustee               their or his assigns) of the other part:               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               benefiting 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 a large portion of his wealth and  assets               :               And  whereas the Settlor feels that he  should               now devote on dedicate a substantial               482               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  purpose  without  distinction   of               religion, caste or creed :               And  whereas  in  view  of  the  deteriorating               economic 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 described in the  schedule               hereunder  written (including all  the  rights               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  first  Trustees of those presents  as  is               testified  by  their  being  parties  to   and               executing those presents ;               And  whereas  the sum  of  Es.  88,490/(Rupees               eighty-eight thousand four hundred and  ninety               only)  mentioned  in  the  Schedule  hereunder               written  has been paid by the Settlor  to  the               Trustees  by  a cheque drawn in  their  favour               this   day  before  the  execution  of   these               presents.               Now this Indenture witnesseth as follows:               1.    For  effecting  his said desire  and  in               consideration of the promises the Settlor doth               hereby  declare  that  he has,  prior  to  the               execution   of   these  presents,   paid   and

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             transferred  and he doth hereby  confirm  such               payment and transfer unto the Trustees of  all               that  the  said sum of Rs,. 88,  490/  (rupees               eighty-eight thousand four hundred and  ninety               only)                                    483               included in the Schedule hereunder written and               further  the  Settlor 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 Trustees for  ever               upon  the Trusts and with and subject  to  the               powers,     provisions,     agreements     and               declarations    hereinafter   appearing    and               contained of and concerning the same.               2.    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  lights  incidental  or               attached to the holding of the said shares and               securities  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,  provisions,  agreements  and               declarations    hereinafter    declared    and               contained of and concerning the same.               484               3.    The   Trustees  shall  held  and   stand               possessed of the Trust Fund upon the following               Trusts :               (a)   To manage the Trust Fund and collect and               recover  the  interest,  dividends  and  other               income thereof :               (b)   To  pay and discharge out of the  income               of the Trust Fund all expenses 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  outgoing  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

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             desire the corpus of the Trust of any part  of               the corpus or any one or more of the following               charitable   purposes  in  such   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, particularly               in  the State of Hyderabad (Deccan)  including               the establishment, maintenance and support  of               institutions  or funds for the relief  of  any               form of poverty.               (ii)  for the maintenance, upkeep and  support               of   public   religious,   institutions,   and               otherwise for the                                    485               advancement  of religion particularly  in  the               State of Hyderabad (Deccan) To The Intent that               the benefit of the present clause shall not be               restricted to any particular religion.               (iii) for  the advancement and propagation  of               education  and  learning,  particularly  among               the  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,  particularly 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               establishment,  maintenance  and  support   of               institutions  or  funds for  medical  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."               5.     x                    x            x It is, urged by Mr. Pathak who appeared for 486 the  Board that the significant feature of the  document  is the  desire  of  the  settlor  to  devote  and  dedicate   a substantial part of his remaining assets 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 trust created by the document,  we  should not  attach importance to the words like the  ’Settlor’  and the  ’Trustees’ because words are a 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  its  subject-matter   to purposes  recognised  as  charitable by Muslim  law  and  so though  the appellants 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   settlor  in   executing   the document and that   concept  is  on of dedication  on  which wakf are  based. It is also     urged that the effect of clauses relating  to the  vesting  of the property in the appellant  as  Trustees

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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 basis  and the   justification  for  the  vesting  provisions  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  a vesting  of  legal  title  in  the appellants, the transaction is a trust and not a wakf.   The pervading  idea  of the document is the  dedication  of  the property to purposes recognised by Muslim law as valid for a wakf  and it is only as a means to give effect to that  idea that the property has been vested in the appellants that  487 in  brief, is the main argument in support of the plea  that the  trust  is  a wakf to which the provisions  of  the  Act apply. On the other hand, there are certain other broad features of the  transaction  which  are wholly  inconsistent  with  the notions  of  a wakf.  The outstanding impression  which  the document  creates  is that the settlor wanted  to  create  a trust  for charitable purposes and objects in a secular  and comprehensive  sense,  unfettered and  unrestricted  by  the religious considerations which govern the creation of  wakf. Even  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 religion,  caste or  creed,  and  that  obviously  transgresses  the   limits prescribed  by  the requirements of a valid  wakf  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 Fund upon the  Trusts specified in sub-cls. (a) to (c).  Sub-clause (c)(ii) refers to  the maintenance, upkeep and support of public  religious institutions and otherwise for the advancement of  religion, particularly in the State of Hyderabad; and it adds that the benefit of the present clause shall not be restricted to any particular  religion.  A 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 settlor in creating the trust  was to  help  public  charity in the beat sense  of  the  words, public  charity’  not  confined to any  caste,  religion  or creed;  and it is in that sense that the religious  institu- tions which are within the purview of the trust are 488 all  religious institutions not confined to  any  particular religion.  Then look at el. 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 a  desire to  prefer  the objects of general public  utility  situated within the territorial limits of Hyderabad.  But it is plain that it was farthest from the mind of the settlor to  impose a  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 a wakf and that itself would  rule  out

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the  view  that  the  document creates  a  wakf  and  not  a comprehensive public charitable trust. It  is true that a large number of provisions  contained  in the document are consistent with the view that the  document creates a wakf as much as they are consistent with the  view that  it creates a 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 defeated, 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 possible, 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  a  wakf, the directions in the document that charitable purposes 489 should be selected without distinction of religion, caste or creed,  would  obviously be defeated  and  that  undoubtedly supports the conclusion that the document evidences a public charitable trust and not a wakf. Besides,  the clause on which the argument of dedication  is based cannot be divorced from the provision contained in the said  clause which provides 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 a wakf  but  also charities which would be outside the definition; and so, the whole argument of dedication breaks down because the idea of dedication is not confined to purposes which are  recognised at  charitable by the definition of the Act but extends  for beyond  its  narrow limits.  In this connection, it  may  be relevant  to recall that it would be competent to the  Trus- tees to devote a substantial part of the income, and may  be even  the  whole of the income, to a 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 a valid wakf It  is  in  this context that  the  other  provisions  about 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 contemplated  by  English  Law.  Clause 1  of  the  document specifically  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  subject-matter  of  the trust  vests  in  the  Trustees.   The  argument  that   the provision for vesting had to be made because the property in question is movable 490 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 document.  Thus, the vesting provision  has not  been adopted as a means to carry out the  intention  to dedicate the property to the Almighty but it constitutes the essential  basis of the transaction and that is to  transfer the  legal title of the trust property to the Trustees.   In

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that  sense, cl. 14 which confers on the  Trustees  absolute discretion  to  deal with the property in  any  manner  they like,  as  well  as cls. 18 and 24 which  clothe  them  with authority   to   employ  servants  is   their   uncontrolled discretion and to appoint a Committee for management of  the Trust, become more easily intelligible.  In this connection, we  may  also notice the fact that the appointment  of  non- Muslims  as Trustees which is prohibited by the Act,  is  an indication  that  the settlor did not regard  the  trust  as falling within the said statutory prohibition; likewise, the scheme  of  management of the trust which the  Trustees  are 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. These  several features of the trust support the  conclusion that  the trust is not a 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  a fair and reasonable construction,  the  document must  be held to have created a trust for public  charitable purposes,  some of which are outside the limits of the  wakf and  so, the conclusion is escapable that the trust  created is not, a wakf but a secular comprehensive public charitable trust.   In  that view of the matter, s. 3 (1)  of  the  Act cannot  apply to the trust and its registration under s.  28 is invalid and inoperative,  491