Case No: Civil Appeal No. 120-D to 122-D of 1969
Judge: Kemaluddin Hossain,Ruhul Islam,
Court: Appellate Division ,,
Advocate: Mr. Fazlul Karim,Mr. Sultan Hossain Khan,,
Citation: 32 DLR (AD) (1980) 138
Case Year: 1980
Appellant: Director of Taxation & Excise
Respondent: Mehdi Ali Khan Panni
Subject: Income Tax, Interpretation of Statute, Wakf,
Delivery Date: 1978-8-18
Kemaluddin Hossain, CJ.
Fazle Munim, J.
Ruhul Islam J.
Director of Taxation & Excise, Government of East Pakistan (now Bangladesh)
………..……….Appellant in all the appeals
Mehdi Ali Khan Panni
...........................Respondent in all the appeals
August 18, 1978
Interpretation of taxing Statutes- Doctrine of Laissez Faire and welfare economy.
In interpreting a taxing statute a controversy often arises and learned authorities are cited in support of the proposition that a taxing statute is to be construed strictly in favour of the subject. But this view though not abandoned in case of unresolved ambiguity, does no longer find favour with the judicial authorities. This view of strict construction prevailed at a time when the doctrine of laissez faire was the ruling principle of economy of a State, but almost all the modern countries of the world have abandoned the doctrine and adopted the welfare doctrine of economy………………(6)
A taxing statute is to be interpreted on the language used in the statute. No tax can be imposed on the citizen without the word in an Act of the Legislature clearly showing the intention to lay a burden on him……………………(7)
In case of unresolved ambiguity, it may be interpreted favourably to the citizen but nothing more. The attempt of the Court in case of ambiguity is to be guided by the principle of justice and fairness and to try to arrive at a true meaning of the word………(7)
Interpretation of statutes- When a statute is pari materia
If the two statutes are in pari materia, the language of one can be taken assistance of in interpreting the language of the other.……………………(11)
Maintenance of one’s family members not being understood as a charity in English language. The present waqf which in part produces for family maintenance cannot be treated wholly for charitable purpose.…………….(14)
Waqf-al-al-awlad- Muslim law does not make any difference between charitable purpose and religious purposes.
The Bengal Agricultural Income Tax Act, 1944
Section 4 (b) and Waqf-al-al-awlad
For application of section 4 (b) to a valid Waqf-al-al-awlad created by a Muslim, it should be considered on the basic principle of the institution of waqf as contemplated under the Muslim Law. ………………….(36)
Waqf-Waqf of the present case is a public waqf under section 2 (10) of the Wakf Ordinance of 1962, read with section 92 of the Code of Civil Procedure and section 14 of the Religious Endowments Act, 1963………………(41)
The Bengal Agricultural Income Tax Act, 1944 (Act No. IV of 1944)
The present waqf falls under the first part of section 4 of the Agricultural Income Tax Act.
Waqf- providing for both religious and charitable purposes, makes the waqf wholly religious and charitable purposes…………………..(45)
Waqf-al-al-awlad is entitled to the benefit of tax exemption as provided in the first part of clause (b) of section 4.
Cases Referred to-
Khurram Khan Panni vs. Commissioner of Agricultural Income-tax, 17 DLR (1S65) 286; Commissioner of Inland Revenue vs. Mutual Investment Co. Ltd., (1966) 2 AC 587 at 595; Fazlul Rabbi vs. The State of West Bengal AIR (1965) (SC) 1722; Abdul Hakim vs. Musst. Nabibunnessa 44 CWN 969: Fakirullah Mia vs. Commissioner of Wakf PLR 2 (Dae.) 96; 4 DLR (1952) 117; Muhammad Mehdi vs. Province of East Pakistan PLD (1958) (Dac) 200.
Sultan Hossain Khan, Deputy Attorney-General, with B.B. Roy Chowdhury, Asst. Attorney-General, instructed by S.S. Hoda, Advocateon-Record.—For the Appellant in all the appeals.
Md. Fazlul Karim, Advocate, instructed by S. M. Huq Advocate-on-Record.—For the Respondent in all the appeals.
Civil Appeal No. 120—D to 122—D of 1969
(From the judgment and Order dated 14-10-1969 passed by the Dacca High Court in applications No. 1, 11 and 12 of 1969 under section 63 (2) of the Bengal Agricultural Income Tax Act, 1944).
Kemaluddin Hossain CJ.
In these three appeals common questions of law are involved and so they are heard analogously and disposed of by one judgment. A reference under sub-section (1) of section 63 of the Bengal Agricultural Income-tax Act, 1944 was taken by the Respondent-assessee, the Mutwalli of a Wakf Estate, Md. Haider Ali Khan Panni of village Karatia P. S. Tangail, District Mymensingh. He created a Wakf-al-al aulad by a deed on 23rd Pous, 1340 B.S. (corresponding to 7th January 1934) and supplemented by another deed dated 15th January, 1955 establishing the line of succession of Mutwalli and fixing his remuneration and allowances of the beneficiaries with an ultimate dedication to Allah. The deed of wakf after providing for the monthly allowances of the Mutwalli and Naib Mutwalli at Rs, 500/- and Rs. 400/- respectively directed the income to be spent as follows:
(a) Maintenance of the family of the Wakif and his descendants Rs. 19, 200/-.
(b) Religious and charitable purpose (such purpose are detailed in the deed) Rs. 3, 410/-
(c) Reserve fund for any emergency expenses in connection with the Wakf properties with the excess money after meeting all expenses.
2. Validity of the wakf has not been disputed. The deed further provided that in the event of the total extinction of the lineal descendants of the Wakif, the net income set apart for their maintenance would be spent on such Charities and in such proportion as are mentioned in the deed. The respondent-Mutwalli assessed to agricultural income tax for the years 1956-57, 1957-58 and 1959-60 by the Agricultural Income Tax Officer of Mymensingh, Range. The assessee denied liability to tax and took three separate appeals to the Assistant Commissioner of Agricultural Income Tax who reduced the quantum of the assessed for each year. Not being satisfied with this, the respondent preferred three appeals before the Agricultural Income Tax Appellate Tribunal. Relying on a majority-decision of the High Court of East Pakistan In the case of Khurram Khan Panni vs. Commissioner of Agricultural Income-tax, 17 D. L. R. 286, the Appellate Tribunal took the view that the agricultural income derived from the Wakf is wholly exempted from tax under section 4(b) of the Bengal Agricultural Income Tax Act, 1944 (hereinafter called the Act), and allowed all the appeals. The appellant, Director of Taxation, East Pakistan then filed three applications before the Appellate Tribunal under section 63 (1) of the Act for referring the three questions of law set out therein to the High Court, The Tribunal having refused to make any reference to the High Court, the appellant filed three applications in the High Court under section 63(2) of the Act. The High Court, by a single judgment, dismissed applications rely. ing on the earlier majority decision of that Court, in Khurram Khan Panni's case.
3. The appellant obtained special leave to appeal against the orders of the High Court on three questions for reference;
(1) Whether on the facts and circumstances of the case, wakf-al-al-aulad has created a Muslim trust wholly for religious or charitable purposes within the meaning of section 4(b) of the Bengal Agricultural Income Tax Act, 1944.
(2) Whether in the case of Muslim trusts known as Wakf-al al-aulad mentioned in section 4 (b) of the Act, the words applied thereto' mean the amount of income set apart by the Wakif as per wakf deed for religious or charitable purposes, or the amount of income actually spent or appropriated for such purposes.
(3) Whether the agricultural income derived from the wakf-al-al-aulad is wholly exempted from the liability of agricultural income-tax irrespective of application or non-application of the agricultural income for religious or charitable purposes.
Answers to these questions depend on the interpretation of section 4(b) of the Bengal Agricultural Income Tax, Act, 1944.
4. It appears that against the decision of the High Court of East Pakistan in Khurram Khan Panni's case, wherein section 4 (b) of the Bengal Agricultural Income Tax Act, 1944 came up for interpretation, a petition for special leave to appeal was filed in the Supreme Court of Pakistan but it was dismissed on the ground of limitation. So, leave was granted to consider the three questions set out above.
5. Learned and lengthy arguments have been advanced from the Bar. The learned Judges of the High Court were not nanimous in their opinion and three learned Judges have given separate reasons in support of each of their opinion. In the face of the conflicting opinions, I do not think it worthwhile to enter into them in detail f propose to take the three questions in the leave order and deal with them as I find them along with the interpretation of section 4(b) of the Bengal Agricultural Income Tax Act.
6. In interpreting a taxing statute a controversy often arises and learned authorities are cited in support of the proposition that a taxing statute is to be construed strictly in favour of the subject. But I find that this, view though not abandoned in case of unresolved ambiguity, does no longer get the one sided support from the judicial authorities. The view of strict construction prevailed at a time when the doctrine of laissez faire was the ruling principle of economy of a State, but almost all the leading States of the world have long abandoned the doctrine, and adopted the welfare doctrine of economy. Even a country like England where the doctrine of laissze faire originated has abandoned it in favour of welfare economy. The newly emerging nations like ours mostly adopted the welfare doctrine. In England therefore rule of strict construction in taxing statute has undergone, a modification, though not abandoned.
7. A taxing statute is to be interpreted on the language used in the statute. No tax can be imposed on the citizen without the word in an Act of the Legislature clearly showing the intention to lay a burden on him. When that intention is sufficiently shown, it is not open to speculate on what would be the fairest and most equitable mode of levying tax. In a fiscal or taxing statute one has to look merely at what is clearly said therein, for there is no room for any intendment nor for any equity or for any presumption. In case of unresolved ambiguity, it may be interpreted favourably to the citizen but nothing more. The attempt of the Court in case of ambiguity is to be guided by the principle of justice and fairness and to try to arrive at a true meaning, of the word.
8. A recent view on the rule of the construction of a taxing statute is to be found in the case of Commissioner of Inland Revenue vs. Mutwalli Investment Co. Ltd. 1967 (2) A.C. 587 at 595 by the Judicial Committee of the Privy Council. The relevant passage may be quoted.
I am in respectful agreement with the view of the Privy Council which is in accord with ruling conditions of our time.
9. I now proceed to deal with the questions in controversy before us. The answer to the questions raised in the leave order will depend on the interpretation of section 4(b) of the Bengal Agricultural Income Tax Act. The relevant part of the section as it stands may be set out:
“Explanation: In this section, charitable purpose includes relief of the poor, education, medical relief and advancement of any other object of general public utility."
10. Before Analysing the section, I must observe another rule of interpretation which says that unless the statute is in pan materia, no language of a statute is to be interpreted with the help of the language of another statute or to take recourse to analogy but if the two statutes are in pari materia, the language of one can be taken assistance of in interpreting the language of the other.
11. I now turn to interpretation of section 4(b) of the Act in question. It has been divided primarily into sub-clauses and they have been joined by a conjunction "and". The second sub-clause 1 again is divided into two parts by the word "or'' which has been used in a conjunctive sense. The Clause (b) when divided, its first sub-clause stands like this: "any agricultural income derived from property held under trust or other legal obligation wholly for religious or charitable purposes”; and the second sub-clause reads thus: "in the case of property so held in part only for such purposes or in the case of Muslim trusts commonly known as wakf-al-al-aulad the income applied thereto."
12. If I now look at the clause (b) as a whole, I find that two categories of trust have been described, that of absolute trust and partial trust. In denoting partial trusts, a category of it has specifically been named, that of Wakf-al-al-aulad. In case of absolute trust the language employed is such that the moment a particular trust satisfies the test of the first sub-clause, it gets the exemption from taxation on the whole of its income. So far as the first category of absolute trust is concerned, it must be either for religious or charitable purposes, and must cover the whole of the income. An explanation has been appended to the section to indicate what amongst others could be the charitable purposes. The expression 'charitable purposes' has been used in the ordinary sense understood in English language and is to be understood in that sense. Conception different from or alien to the English meaning if not permissible according to the canon of interpretation set out above. Therefore, no conception of charitable purpose understood in another language or the personal law of the assessee, for example that of Muhammedan or Hindu law, could be accommodated within the language of this sub-clause.
13. The first sub-clause has used the word 'religious'. The word has not been defined but has been used in its ordinary signification and as understood in English language. It conveys a meaning of being religious in a wide sense. Any dedication to God or for any divine purpose or for spiritual welfare no doubt is religious, but the broad context in which the word has been used will include any religious dedication on any denomination. A valid religious dedication under personal law of assessee which satisfies the general meaning of the Act will also be considered religious under this sub-clause.
It is to be observed that the sub-clause has also used the expression 'other legal obligation' and within it will also come any dedication under the personal law of the assessee.
14. Interpreted in this way, the Wakf in question from the, facts as found on record cannot be treated as a trust wholly for religious purposes, because part of its income goes to the benefit of the family of the Wakf, nor can it be treated wholly for charitable purposes as maintenance of one's family, members, as ordinarily understood in English language, is not a charity. The explanation added to the section is more in the nature of definition than explanation. The definition is of inclusive character and so not exhaustive but indicative. It is to be observed that objects which are specifically mentioned in the explanation will of course quality as charitable purposes. Since the definition is not exhaustive other object may be a charitable purpose .The test for those purposes will be to see whether it advances an object of public utility. That of course is not to be so extended to include object beneficial to the whole mankind, but an object beneficial to a section of the public. It is not necessary that the object should serve all persons living in a particular country or province. It is sufficient, if the intention is to benefit a section of the public as distinguished from specified individuals. The section of the community sought to be benefited must undoubtedly be sufficiently defined and identifiable by some quality of public or impersonal nature, and so where there is no common quality or unity of the potential beneficiaries into a class, it may not be regarded as valid. I am reinforced in my view because of the fact that the expression 'charitable purposes' has been used in this sub-clause in a comprehensive and general sense to include an absolute trust, and there is no scope to allow any other notion of charity to arise except the one as understood in the ordinary sense of English language, which either conveys an idea of relief to a needy person or donation to any object of public welfare or utility. The majority view of the learned Judges of the Dacca High, Court in Khurram Khan Panni's case on this point cannot be sustained. I however do not think it worthwhile to enter into a long and controversial contentious of the learned Counsel of the parties in this regard any further.
15. To turn to the second sub-clause as set out above I find, it consists of two parts and the two parts constituting the sub-clause refer to partial trusts in general and toe other specified partial trust that of wakf-al-al-aulad, a kind of Muslim trust. This sub-clause further says that in case of partial trust or wakf-al-al-aulad, the, exemption of the income from taxation could be given if the income is "applied thereto", which means applied for the purposes of the trust or wakf-al-al-aulad. It is to be remembered that the moment a Muslim trust answers the definition of wakf-al-aulad; it will come in the second part of the second sub-clause. The Indian Supreme Court in the case of Fazlul Rabbi vs. The State of West Bengal A.I.R. 1965 S.C. 1722 on a similar provision containing the expression 'religious' and 'charitable' in West Bengal Estate Acquisition Act has taken the same view as I have taken on Muslim wakf-al-al-aulad. The conclusion is that the validity of the trust will be determined by the personal law of the assessee, if he is governed by any such law but the benefit under the Act will be available only when the trust will qualify within the actual words, ordinarily interpreted used in the Bengal Agricultural Income Tax Act.
16. I now come to the question of interpretation of the words ‘applied thereto’ in this sub-clause to get at the meaning of the second sub-clause. The words have been used in their grammatical sense, and one way to get at the meaning of the words is to look at their dictionary meaning. In Webster's Dictionary 'apply' means, amongst others, to place in contact with a thing, to put to use, to devote to a particular purpose, to engage with a close attention. The different categories of meaning given in the dictionary do indicate in case of money that it is to be spent. It also means the money devoted to a particular purpose. I think both the meanings are applicable according to the circumstances of the case. In the second sense, money must be devoted to or in other words set apart for the purpose. An illustration will clarify the meaning. In a Wakf-al-al-aulad or any partial trust there may be cases where the donor himself has earmarked the amount to be spent by the Mutwalli or trustee and in such a case the trustee has no discretion in the master of expenditure for the purpose of the trust. He must devote income earmarked by the donor for the purpose of the trust. The trustee has no discretion and failure on his part to carry out the direction of the donor will amount to a breach of duty and on some occasion, a breach of trust. If the Mutwalli or trustee has set apart or deemed to have 1 set apart the income of the Wakf-al-al aulad according to the direction of the donor, he has devoted it for the purpose of said wakf, and therefore he-has 'applied' the income thereto, for the purpose of the wakf. We can get at a clearer meaning of the illustration, if we take into consideration a case where due to dispute or ill fueling between the Mutwalli and the beneficiary, the latter has refused to receive his allowance even if it is set apart by the Mutwalli and offered to the beneficiary.
17. There may be cases where the donor has in the wakf deed given a discretion to the Mutwalli or the trustee to apply the income for the purpose of the partial trust or wakf-al-al-aulad according to his best judgment as to amount. Here, unless the Mutwalli actually spends the income for the purpose of wakf-al-al aulad, he is not applying it for those purpose, and in this category of cases, 'apply' will mean actual expenditure. The expenditure being discretionary, if he does not spend the income for the purpose of wakf-al-al-aulad, he does not commit any breach of duty. In my opinion according to the language of the dedication and the circumstances of a particular case, the expression, ‘applied thereto' may convey either 'to set apart' or actual expenditure as the case may be.
18. In interpreting section 4(b) of the Agricultural Income Tax Act or applying its provision, it is to be remembered that we seldom get a trust which will accommodate itself wholly with any of the two clause. The usual form of a trust is a composite one, some clauses providing for wholly religious or charitable purposes, some for partial trust or wakf-al-al-aulad. I thing the best construction will be,-that on reading a deed as a whole, that part of the dedication as answers any one or part of the clauses that is applicable to it, is to be applied accordingly, and so much of the income will get the benefit of that clause of the enactment. In case of a dedication which is of a composite nature, it will be the duty of the taxing authority to dismantle the dedication to its component parts, and apply each part to that part of the clause of the Act where it actually fits, and then look at the dedication in its entirety and apply the law accordingly. It may be that some part of the dedication will fall to first clause, and some to the second clause and that is how the composite trust is to be treated.
19. I now turn to the three questions raised in" the leave order. Facts have already been set out. Rs. 19,200/- of the income of the wakf in question is for the maintenance of the family of the wakif and his descendants, and Rs. 3,410/- for the religious and charitable purposes, and after meeting all expenses, the creation or a Reserve Fund for any emergency expenses in connection with the wakf. I, therefore, find Rs. 3,410/- is for religious or charitable purposes and therefore comes within the first clause of section 4(b). The Reserve Fund, if any, h for the emergency expanses of wakf estate and therefore, may be taken for religious purpose if it is spent for the protection of the wakf estate, and may come within the benefit of first sub-clause, according to the nature of the expenditure under this head. The amount of Rs. 19,200/- is for the maintenance of the family of the wakf and his descendants. It is for the beast of descendants of the wakf and not for any benefit a section of the public but for specified individuals, add no common quality of public utility is there and so it is not for a charitable purpose, though it is valid under Muhammedan law as wakf-al-al-aulad, and so does not come within the first sub-clause, but it comes within the plain language of the second part of the second sub-clause. This is the special or specific provision and it must prevail and is to be so construed. All that we are now to see is whether the income has been 'applied' to the purposes of the wakf-al-al-aulad. The deed shows that the wakf has earmarked the income amounting to Rs. 19,200/- to be spent for maintenance of his descendants. On the construction I have given, the Mutwalli has no discretion, but to carry out the direction of the wakf in terms of the wakf deed. This amount is devoted to the purposes of the wakf-al-al-aulad and according to the terms of the deed 'applied' to said purpose.
20. The answers to questions, therefore, are that on the first question the answer is in the negative. The second and the third questions are to be answered together. The answer is that in this particular case since wakf himself has earmarked Rs. 19,200/- of the income in the wakf deed, to be spent for the maintenance of his descendants, the said amount is to be deemed to be 'applied thereto' for the purpose of wakf-al-al-aulad. It is- to be observed that according to the terms of the dedication in the wakf deed and the circumstances of the case, the exemption of agricultural income tax will be allowed, if it is 'set apart' by the wakif in the deed, otherwise exemption can only be allowed, if the income Is actually spent by the Mutwalli for the purpose of the wakf-al-al-aulad or any partial trust, and not otherwise.
The appeals are disposed of in the aforesaid terms but without any order as to costs.
Ruhul Islam, J.
These appeals by special leave are from judgment of the High Court refusing to direct the Agricultural Income-tax Appellate Tribunal under section 63(2) of the Bengal Agricultural Income-tax Act 1944 to refer the three questions reproduced below:— (1) whether on the facts and circumstances of the case, the wakf-al-al aulad has created a Muslim trust wholly for religious or charitable purposes within the meaning of clause (b) of section 4 of the Bengal Agricultural Income-tax Act, 1944 ; (II) whether the Muslim Trusts known as wakf-al-al-aulad is wholly exempted from the liability to agricultural income tax irrespective of application and non-application of agricultural income for religious or charitable purposes: and (III) whether the agricultural income derived from wakf-al-al-aulad is wholly exempted from the liability of agricultural income-tax irrespective of application or non-application of the agricultural income for religious or charitable purposes.
22. Answers to the questions depend on correct and true interpretating of clause (b) of section 4 of the Bengal Agricultural income-tax Act, 1944, hereinafter referred to as the Act."
Clause (b) of section 4 of the Bengal Agricultural Income-tax Act, 1944, reads as follows:—
23. On close examination of the language of clause (b) of section 4 of the Act it appears that the legislature described Muslim trusts commonly known as wakf-al-al-aulad for the purpose of exempting its income as applied thereto, under the Agricultural Income-tax Act. It will not be correct to say that the Legislature treated wakf-al-al-aulad as partial trust. If wakf-al-al aulad is treated as a partial trust, it may create anomalous position vis-a-vis the concept of Wakf. For instance provision for maintenance of the wakif's family and his children is not treated as charitable purpose under the English Law, but under the Muslim Law such provision is considered has best of all charities. Clause (b) of section 4 of the Act mentions 'religious and charitable purposes'. An explanation has been added to clause (b) It, however, does not define 'charity' or charitable purposes' but it merely enumerates as the word 'include' indicates by way of illustration as the nature of the purposes contemplated by the provision. It provides that 'charitable purpose includes relief to the poor, education, medical relief and the advancement of any other object of general or public utility". The sense purportedly attributed to the expression 'charitable purposes' in clause (b) cannot be said to carry only the sense of public charity. Muslim Law does not make any distinction between charitable purpose or religious purpose. If a particular wakf-al-al-aulad is considered from this aspect, it may very well be a case of wakf coming within the first category of trust or other legal obligation wholly for religious or charitable purposes. Therefore, the explanation does not provide any aid to the interpretation of clause (b) of section 4.
24. In the instant case the wakf deed executed by Md. Haider AH Khan Panni, dated January 7, 1934 contains the following provisions :—
I, with a view to making provisions for the maintenance and supply of food and raiment to my wife, children, descendants and other members of my family and God forbidding, if there be no one from my descendants living and my family be extinct, then in that case with a view to connecting my property with various charitable and humanitarian organisation connected with and approved by Islamic laws and religion, I do hereby make an al-al-aulad Wakf in respect of... … ….
During the period I hold the office of the Mutwalli of this Wakf Estate, I shall pay for the expense of food, dress and maintenance of my wife and children and other members of my family, from the income of this Wakf estate or by fixing monthly allowances or stipends shall pay the same to them. The amount of stipend or monthly allowances would be got by my wife, children and descendants for their maintenance in my absence the procedure according to which such amounts would be paid, would be assessed and fixed by me and they shall be paid the stipends or monthly allowance accordingly. It is in the document referred to in Para 2 that I shall be able to pay down the procedure for the payment of the stipends or monthly allowance to descendants. Whoever from among my descendants would renounce the religion of Islam & accept any other faith shall not get any stipend or monthly allowance from this wakf estate for his food, clothings and maintenance.
God forbidding, if in future, my existing descendants cease to exist totally, and descendants of my children and those of the persons receiving maintenance be also extinct, in that case, the then Government, shall appoint an educated Mussalman, who is a member of the Hanafi sect "and properly adhere as to the tenants of Islam. The Mutwalli so appointed shall spend the income of this Wakf Estate in the cause of the religion of Islam and the various ceremonies therewith and for the acts of charity towards the needy persons like the wayfarers the poor, the blind and the invalid and acts like education and free medical treatment of the general public residing within the wakf estate, wakf, which are treated as meritorious acts approved of Islam. I shall be able to determine the procedure according to which the said acts would be performed in a separate document referred to in para above."
Subsequently the Wakf executed a supplementary wakf deed on January 15, 1955, determining the powers of the Mutwalli on his death, for running the wakf estate, his remuneration and the amount of the monthly allowance for the food and raiments of his descendants and fixing the amount to be spent for the religious ceremonies in accordance with the religious code of Islam. The wakf fixed his monthly allowance at Rs. 500/- for his maintenance from the income of the Wakf Estate. Mutawallis succeeding him during their tenure of office will get @ Rs. 500/- per month as their remuneration from the Wakf Estate. Rs. 3,410/- to be spent annually in humanitarian acts connected with religion as specified in the deed. A total sum of Rs. 19,200/ to be spent as monthly allowance of his descendants as specified in the deed. Direction has been given that after meeting the expenses for monthly allowances and religious affairs the amount left as excess shall go to form a Reserve Fund. The Mutwalli shall keep the said money in deposit with a Bank or a Post Office. With further direction that if for any unavoidable reason any one of the Wakf Estate is in urgent need of money the Mutwalli will be entitled to spend the amount after withdrawing it from the Reserve Fund, but he shall try to reimburse the amount as quickly as possible.
25. On consideration of the provisions of the wakf deeds the Agricultural Income-tax Appellate Tribunal as well as the High Court of Dacca on the authority of the decision in the case of Khurram Khan Panni vs. Commissioner of Income-tax, East Pakistan, Dacca, 17 DLR. Dacca 286 held that the wakf in question could not but be held to be wholly for religious or charitable purposes, within the meaning of clause (b) of the Act.
26. From the order granting leave to appeal it appears that against the majority judgment o! the High Court in East Pakistan in Khurram Khan Panni's case interpreting clause (b) of section 4 of the Act in favour of the wakf-al-al aulad that the wakf was entitled to the exemption as provided in the first part of the clause a petition for special leave to appeal was filed by the Commissioner of Agricultural Income-tax, East Pakistan, Dacca, but it was dismissed in limine on the ground of limitation. Correctness in the interpretation given by the majority judgment was challenged but it remained unexamined. Leave was granted on the consideration that an authoritative decision on the question was called for Practically the decision in Khurram Khan Panni's case is under consideration, as to whether clause (b) of the section 4 has been correctly interpreted or not.
27. Mr. Sultan Hossain Khan, learned Deputy Attorney-General appearing for the appellant strenuously argued in support the minority judgment in the reported case in interpreting clause (b) of section 4 of the Act. In this context the learned Deputy Attorney-General wanted us to refer to similar provision in the Income-tax Act, 1922 and the decision of different superior Courts wherein the said provision of law has been construed on a similar question whether the Mutwalli having in his hands income belonging to a private trust was assessable in respect of it.
28. The course suggested by the learned Deputy Attorney-General can not be folio-wed for purpose of giving correct interpretation to the statutory provision under consideration Firstly, because, language of subsection (3) of section 4 of the Income tax Act, 1922 is not similar to that of clause (b) of section 4 of the Bengal Agricultural Income-tax Act, 1944, and secondly because, it would be against the principle of interpretation of a taxing statute. A taxing statute is to be interpreted strictly on the language employed in the statute "Nothings is to be read in and nothing is to be implied. One can only look fairly at the language used”. “In my opinion neither the language of section 4(3) of the Income-tax Act nor the decisions interpreting the said provisions by different superior Courts would be of any assistance for the present consideration. In the Income-tax Act private trust has been expressly excluded from the benefit of exemption, whereas in the Bengal Agricultural Income-tax Act this exclusion from exemption, not only omitted, but also wakf-al-al aulad, which is a private trust, has been expressly exempted by specific mention of it. This makes the difference between the two statutes. It is not safe to interpret one statute on the authority of decided cases under another statute containing different provision and of different purpose and connotation. Now, let me see how this provision has been interpreted in Khurram Khan Panni's case. The following questions were referred to the High Court for opinion: (i) whether on the facts and circumstances of the case the property vested in God (Wakf lillah) is a dedication wholly for religious and charitable purpose in spite of the reservation of a part of it for the maintenance of the Wakif's family with an ultimate dedication for religious and charitable purposes by a Muslim of Hanafi Sunni sect and as such it is a trust held wholly for religious and charitable purposes and, therefore, exempt from taxation under section 4(b) of the Agricultural Income-tax Act, 1944; (ii) whether on the facts and circumstances of the case, under section 4(b) of the Act the word applied' means the actual amount of income applied to for such purposes by the Mutwalli or the amount of income set apart by the Wakif as per wakf deed for such purposes.
29. Facts of that case are almost similar to those of the instant case. In the reported case net income of the Wakf estate was estimated in the deed of wakf to be Rs. 80,000/-to be spent as follows:
(i) For the maintenance of the family of the wakf;
(ii) For purely religious or charitable purposes ….1/2,
(iii) For sinking fund or for any emergency expenditure in connection with Wakf properties and for new purchase of properties, sinking fund never to exceed, at any time, Rs. 25,300/ ... ….1/2,
The newly purchased properties also to become wakf properties and the income thereof is to be distributed in the same way as the income of the original wakf properties, with a provision for ultimate dedication for religious and charitable purposes mentioned in the Wakf deed, in case of extinction of the wakif's family.
30. Chowdhury. C. J. on examination of the provision of law as contained in clause (b) section 4 of the Bengal Agricultural Income-tax Act, 1944 and the provisions of the wakf deed held that wakf al-al aulad in question was wholly for religious or charitable purposes and not a wakf held partly for religious or charitable purposes and partly for non-charitable purposes. According to the learned Chief Justice whole of the income of the wakf property was entitled to be exempted from Agricultural Income-tax. The learned Chief Justice observed:—
Simply because wakf-al-al aulad has been separately mentioned in the section, it cannot be said to have been intended to be taken away or has been taken away, from the first category of trust, that is, from trust wholly for religious or charitable purposes."
In this context the learned Chief Justice further observed as follows:
'There is no doubt that there is a provision for the maintenance of the family of the wakif. To provide for oneself, his family and his children is best of all charities. What is charitable that is religious, and although all religious purposes are not charitable purposes, but all charitable purposes are religious purposes. In our country, there is no distinction between private and public trust and between private and public charity and all are charities both under the Muslim Law and the Hindu Law, unlike under the English Law as pointed out in Abdul Hakim vs. Musstt. Nabibunnessa 44 CWN 969 and Fakirullah Mia vs. Commissioner of Wakif PLR 2 Dacca 96; 4 DLR 173.
The learned Chief Justice then observed.
The learned Chief Justice arrived at the following conclusion:—
The learned Chief Justice, before concluding, explained what could be the possible intent of the Legislature in mentioning wakf-al-al aulad separately in the third category of trusts in the section. According to him, "simply because wakf-al-al-aulad has been separately mentioned in the section, it cannot be said to have been intended to be taken away or has been taken away from the first category of trust, that is, trusts wholly for religious or charitable purposes.”The learned Chief Justice, being of the opinion the, that wakf in question being an unmixed wakf, is wholly for religious or charitable purposes, it comes under the first category of trusts. On this view of the matter, the learned Chief Justice answered the first question in the affirmative.
31. While considering the second question, namely, as to what is meant by using the word "applied'' in allowing exemption of the agricultural income derived from the property of wakf-al-al aulad, the learned Chief Justice held :
32. In that view of the matter the learned Chief Justice treated the second question as misconceived and according to him this misconception was due to the erroneous view taken on the first question. If it is a wakf wholly for religious and charitable purposes and as whole of the income has been exempted the words "income applied thereto" have got to scope for it-; application. So the second question in view of the answer to the first question does not arise in this case. According to him, second question only arises when the property so held in part only or in the case of wakf-al-al-aulad mixed with other object of non-charitable nature. After making a probable distinction between wakf-al-al-aulad mixed with other object of charitable nature and wakf-al al-aulad mixed with other object of non-charitable nature held that the words "income applied thereto'' mean so much of the income applied or set apart by the wakif in the trust deed for those purposes arid they do not mean the income actually spent or applied by the mutwalli for those purposes.
33. M.R. Khan, J. dissented from Chowdhury, C.J., on both the questions. While noticing that 3/4th of the income of the wakf in question stands dedicated to religious and charitable purposes l/4th reserved for the maintenance of the wakf's descendants, which is recognised as charitable under the Islamic Law, but as the wakf is a wakf-al-al-aulad and the same having been expressly mentioned separately from absolute trusts in clause (b) of section 4 of the Act, the learned Judge held that the wakf is not a trust wholly for religious or charitable purposes within the meaning of section 4(b), and accordingly, answered the first question in the negative.
34. As regards the second question the learned Judge answered the question stating that the expression "the income applied thereto" occurring section 4 (b) in so far as it relates to a wakf-al-al-aulad, means the income actually appropriated to the purpose of a wakf al-al-aulad by the Mutwalli, but does not mean the income apart or dedicated by the wakf in the wakf deed itself for the purposes mentioned therein.
35. Hasan, J. as the third Judge, on noticing that practically there was no difference of opinion on the question of exemption from taxation, between Chowdhury, C.J. and M.R. Khan, J., and difference arose on the interpretation of the word "applied" under section 4(b) of the Act, answered question No. 1 in the affirmative agreeing with the view taken by Chowdhury, C.J. and answered the second question stating hat the word applied means the amount income set apart for the Al-al aulad in the wakf deed.
36. In the instant case the Wakf Mohammad Haider Ali Khan Panni in his supplementary wakf deed dated January 15, 1955 allocated the amount to be spent on religious purposes and charitable purposes including the amounts to be paid to the wakif so long he continues as the Mutwalli, the Mutawallis in the absence of the wakif and his descendants. It has been further provided in the wakf deed that after meeting the expenses the monthly allowance and religious affairs, the amount left as excess shall go to form a Reserve Fund, to be spent in case of emergency which is to be re-imbursed as quickly as possible. In the wakf deed there is no provision which may be treated as uncharitable purpose to consider it as one attracted by the second part of section 4 b) of the Act. It is also not a wakf-al-al-aulad strictly speaking as defined in section 6(11) of the Bengal Wakf Act, 1934 according to which wakf-al-al-aulad means a wakf under which not less than 1% of the available income is for the time being payable to the wakif for himself or any member of his family or descendants. The wakf-al-al-aulad as mentioned in clause (b) of section 4 of the Act has been mentioned as "Muslim trusts commonly known as wakf-al-al-aulad." In the manner wakf-al-al-aulad have been mentioned in the Act, it cannot be said that the Legislature referred to wakf-al-al-aulad as recognised under the different statutes, the purpose of exemption. From the analysis of clause (b) of section 4 of the Act it does not appear that the expression "charitable purposes" has been used only in relation to absolute or partial trust, but not in relation to wakf-al-al-aulad." Contrary view is advanced merely saying that simple reason for this is that Muslim laws recognise the maintenance of one's descendants as charitable but the general law does not. Whatever might be the reasons for treating wakf-al-al aulad separately, the wakf-at-al-aulad as a class have not been included as the third category of trusts in section 4(b), nor it would be correct to say that on account of wakf-al-al-aulad having been referred to in the third category, wakf-al-al-aulad as recognised under different statutes should be deemed to have been excluded from coming under the first part of clause (b) For application of section 4(b) to a valid wakf-al-al-aulad created by a Muslim, should be considered on the basis of the basic principle of the institution of wakf as contemplated under the Muslim Law. In this context it may be mentioned that the Trusts Act II of 1882 does not apply to wakfs created by Muslims in accordance with Muslim Laws. Section 1 of the Act provides:
37. For proper appreciation of the expressions "charitable purposes" and "religious purposes" occuring in section 4(b) in relation to a Muslim wakf one must keep in mind the very foundation of the institution of wakf. Wakf is the practical manifestation of the divine teaching in the Holy Quran on the topic of amelioration of poverty from the society. Validity of wakf in founded on the rule laid down by the Prophet of Islam himself. The institution of wakf is traced to the Prophet of Islam which has been given doe recognition and proper place by the Muslim jurists from the easiest time of Islam It is interwoven with the entire religious life and social economy of Muslims. Naturally the law of wakf is the most important branch of Muslim Laws. It is certain that prior to Islam there were no wakfs in Arabia. The earliest one referred to by the authorities is that of Omar, the second Caliph, which has been made basis of the law. Omar had a piece of land in Khyber. He sought counsel from the Prophet to make the most pious use of it. Whereupon the Prophet declared, "Tie up the property (Asl Corpus) and devote the usufruct to human beings and it is not to be sold and made the subject of gift or inheritance; devote its produce to your children, your kindred and the poor in the way of God." ''In accordance with this rule Omar dedicated the property in question and the wakf thus created continued for several centuries till it became waste. The authorities, such as, the Jamma-i-Tirmizi and Futh-ul-Qadir mentioned it. Some of the authorities including Syed Ameer Ali noted some of the saying of the Prophet of Islam which changed the outlook of the Muslims and greatly influenced in bringing in revolutionary changes in the social and economic system in Arabia. The Prophet declared, 'a pious offering to one's family is more pious than giving alms to beggars’; 'support of one's self, his children and family is the first duty and necessity’; 'in giving charity, commence with those whose maintenance is obligatory on you', 'a man giving subsistence to his family is giving sadqah'; 'giving alms to the poor has the reward of one alms, but that giving to kindred has two rewards' etc.
38. These doctrines provided the basis of the institution of wakf which the eminent jurists moulded in different countries according to their needs and circumstances, social conditions and the conception of the public policy. The doctrine of wakf is, therefore, interwoven with the entire religious life and social economy of the Muslims. There cannot be two opinions that this doctrine radically changed the very concept of socio-economy and brought revolutionary changes in the Muslim society. The laws that developed in the course of time "impose an obligation, legal or moral" to provide for the upkeep and maintenance of parents, descendants and kinsfolk in general; and provision for one's own self has been considered equally obligatory so that one may never become a burden upon his society or people. The principle underlying these conceptions, which are wholly alien to all western system, is directly traceable to the rules enunciated by the Prophet of Islam. The legal meaning of wakf according to the accepted rule of Hanafi School of Muslim Law is the extinction of the proprietor's ownership in the prosperity dedicated and its detention !n implied ownership in God in such a manner that the profits may revert to and be applied for the benefit of the mankind. Family endowments as recognised in the Muslim Law are wakf-al-al-aulad (family wakfs). When a wakf is created constituting the family or descendants of the recipients of the charity so long as they exist, the poor are expressly or impliedly brought in, not the purpose of making the wakf charitable, but simply to impart permanency to the dedication when wakif descendants fail, it must come to the poor. So, it is an enduring benefaction, an act of 'baidat' or worship—an act by which 'Kurbat' or nearness is obtained to the Almighty. What in the estimation, of the Western Jurists could be pernicious perpetuity calculated to aggrandize the family of the founder, according to the Shariat it is the best of charity. It is therefore, not surprising that the judicial committee went against the weight of the authority by ijma'. According to the Western Jurists charity means any charitable or religious object or purpose or any object of public utility. "Trusts, for purposes of which the law considers it for the public benefit to perpetuate for ever are called charitable trusts. This is the only general definition which can be given to the charity." This is how the word 'charity' has been generally defined in Tysen on Charitable Bequest.
39. In the Muslim Law and religion, the word 'piety' and 'charity' have much wider significance, and include every purpose which is recognised as good or pious, that is, what is good and or pious or charitable has the approval of the Almighty. A provision for one's self, for one's children, is as good and charitable an act as a dedication for support of the general body of the poor.
40. Wakfs may be divided into two classes namely, (I) public and (b) private. The latter may again be sub-divided into two: (i) wakf, exclusively for the benefit of wakif's family, children and descendants in perpetuity; and (ii) wakf for the benefit of the wakif's family, children and defendants, and for public charity. A public wakf is one for a public, religious or charitable object of public utility. Private wakf (wakf-al-al-aulad) have since been given statutory protection after removing the disability caused by the judicial pronouncement of the Privy Council in Abul Fata Mahomed Ishak vs. Russomoy Dhar Chowdhury and others, 22 India Appeals 76. The Mussalman Wakf Validating Act (Act VI of 1913) received the assent of the Governor General on March 7, 1913 which was made retrospective by enacting the Mussalman Wakf Validating Act, 1930. Wakf has been defined in section 2 of Act VI of 1913 in the following manner:—
(1) 'Wakf means the permanent dedication by a person professing the Mussalman faith of any by property for any purpose recognized by the Mussalman Law as religious, pious or charitable."
Section 3 of the Mussalman Wakf Validating Act, 1913 reads as follows:—
(a) for the maintenance and support wholly or partially or his family, children or descendants and (b) where the person creating a wakf is a Hanafi Mussalman, also for his own maintenance and support during his lifetime or for the property dedicated:
The wakf in question is a wakf-al-al-aulad created partly for the benefit of the wakf's family, children and descendants in perpetuity and partly for public charity and religious purposes. We have seen that according to the Muslim Jurists wakfs for the support of a man's descendants and family are considered to be religious and the best of charities. Whatever controversy there might be regarding validity of the wakfs created for the benefit of one's self, descendants and family, it has been set at rest by providing statutory protection under the Mussalman Wakf Validating Act, 1913 and the Mussalman Wakf Validating Act, 1930. The statutes purported to restore the law of Shariat by overriding the law as laid down by the Privy Council in Abul Fata Mahomed Ishak vs. Russomoy Dhar Chowdhury and others 22, Indian Appeals 76. The Bengal Wakf Act 1934 was enacted for proper administration of wakf property in Bengal. In the Act 'wakf' has been defined as the permanent dedication by a person professing Islam of any moveable or immovable properties for any purpose recognised by the Islamic law as pious, religious or charitable and, includes a wakf by user. In this Act wakf-al-al-aulad has been defined as ‘wakf’ under which not less than 75% of the net available income is for the time being payable to the wakf for himself or any member of his family or descendant? To consolidate and amend the laws relating to administration and management of wakf properties in East Pakistan, Waqfs Ordinance, 1962 (East Pakistan Ordinance No. 1 of 1962) was promulgated. Section 2(10) of the Ordinance defines 'Wakf’ as 'the permanent dedication by a person professing Islam of any moveable or immoveable property for any purpose recognised by Muslim Law as pious, religious or charitable, and includes any other endowment or grant for the aforesaid purposes, a wakf by user, and a wakf created by a non-Muslim. To this definition an explanation has been added which is reproduced below:—
Section 3 of the Ordinance provides that the Ordinance shall apply to all wakfs, whether created before or after the commencement of this Ordinance, and to any part of the property which is situated in East Pakistan (now Bangladesh). Section 47 of the Ordinance provides that all wakfs existing at or created after the commencement of this Ordinance shall be enrolled at the office of the Administrator.
41. Bengal Wakf Act, 1934 was applicable to the wakf in question which was created by a registered deed of wakf dated January 7, 1934 and supplemented by the wakf deed dated January 15, 1955. Only fixed amount of Rs. 19,200/- was made payable as monthly allowances of the wakif's descendants as specified in the deed and Rs. 500/- to the wakif as his monthly allowance and the Mutawallis succeeding him during their tenure of office. Rs 3410/- was to be spent annually in humanitarian acts connected with religion as specified in the deed and to create a Reserve Fund with the residuary of the income, to be utilised only in emergency for helping any of the beneficiaries, of the wakf estate, liable to be reimbursed. Expenditure of the income as delineated in the wakf deed brings it within the scope of the definition of wakf as contained in section 2 (10) of the Wakf Ordinance of 1962, because more than 55% of the net available income of the wakf estate being exclusively applied for religious and charitable purposes, that wakf shall be deemed to be public wakf and shall be deemed to be a trust for public purposes of a charitable or religious nature within the meaning of section 92 of the Code of Civil Procedure and section 14 of the Religious Endowments Act, 1963.
42. In view of the concept of wakf under the Muslim Laws and the definition of wakf I do not find any difficulty in applying the first part of clause (b) of section 4 to the wakf in question, because undoubtedly it fits in with the description "other legal obligations wholly for religious or charitable purposes". The Bengal Agricultural Income Tax Act, 1944 which came into operation in December 30, 1944 was enacted at a time when wakf in Bengal were being managed and administered under the Bengal Wakfs Act, 1934. 75% or more of the income not being applied for payment to the wakif and his family or descendants, was not referable as a wakf-al-al-aulad. Therefore, the expression in the case of 'Muslim trusts commonly known as wakf-al-al-aulad is not referable to a wakf of the nature under consideration. Apart from that, the term wakf-al-al-auld although a well-recognised term under the Muslim Laws, the Mussalman Wakf Validating Acts of 1913 and 1930, and the Bengal Wakf Act, 1934, wakf-al-al-aulad as a class can not be said to have been referred to merely because of the use of the expression "Muslim trust commonly known as “wakf-al-al-aulad". It is obvious that the Legislature in using the term "wakf-al-al-aulad" in section 4 (b) of the Act used as referable only to those wakf-al-al-aulad not covered by any of the above noted definitions given under the statutes, but not as the entire class.
43. If a valid dedication under the personal law satisfies the general meaning of the statute, then certainly it comes under the first part of clause (b). The provision for maintenance of wakif's family or descendants may net be a public charity, but it is a private charity which is also religious according to the Muslim Laws. If the wakf provides for both charitable and religious purposes, then, the two together also make the wakf wholly for religious and charitable purposes. I find it difficult to subscribe to the view that the section contemplates only public utility and not private charity. On close examination of the language of clause (b) section 4 of the Act it appears that the Legislature while framing the law was conscious about the religious endowments under the personal laws of the citizens and the institutions or "other legal obligations" which are "wholly for religious or charitable purposes". These religious endowments have been treated as a separate class, that is, not in the category of Trusts,” In is patent from the language of the section that" the expressions "property held under trust and "property held under other legal obligation wholly for religious or charitable purposes' clearly show that property so held have been treated in one and the same category for the purpose of excluding its agricultural income from taxation under the Act.
44. It has been mentioned above that validity of wakf-al al-aulad does no longer depend on the recognition by the personal laws of the Muslims, that is, 'Shariat' laws. The controversy has been settled by granting recognition and protection under the statutes. Section 2(1) of Act VI of 1913 defines ‘wakf’ as wakf means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman law as religious, pious of charitable. "The wakf in question undoubtedly created a" permanent dedication of immovable property described therein for the specific purposes recognised by the Muslim law as religious, pious and charitable. Clause (b) of section 4 of the Act speaks about agricultural income derived from property held under trust or other legal obligation wholly for religious or charitable purposes. Neither the word 'trust' as used in clause (b) or the explanation added to the clause supports the view that wakf-al-al-aulad being private trusts in spite of their meeting the requirements of other trusts, cannot be classified under the first part of the clause for exemption of its agricultural income from taxation. The reason given in support of the view is that the expression "charitable purposes" has been used in clause (b) in a comprehensive and general sense to include an absolute trust and not a private trust or private charity. Section 1 of Trusts Act 11 of 1882, already referred to above, negatives this argument. Section 1 of the Act provides that "But nothing herein contained affects the rules of Muhammedan law as to waqf ...or applies to public or private religious or charitable endowments.
45. Wakf-al-al-aulad are religious institutions” as contemplated under the constitutions. There is no controversy now on this question. Muhammad Mehdi Ali vs. Province of East Pakistan, P. L. D. 1958 Dacca 203. Imam Husain Chowdhury, J. in repelling the argument made on behalf of the Government of East Pakistan that the words "religious institutions” used in Article 18 of the Constitution of Pakistan 1956 did not include wakf al-al-aulad, because, the language of the Article indicated that “religious institutions" contemplated religious institutions of public character which include a public wakf where the property is dedicated exclusively for public purposes and public charity, observed. "There is no doubt that the farmers of the constitution while using the expression, religious institution used it in the same sense as understood by the citizens of Pakistan under their personal law and not in the technical sense of English law where charity, has got a meaning different from a charity, sadakah, under the Muslim Law or Hindu Law , .. 'The same argument is still available with reference to Article 41 of the Constitution of Bangladesh, 1972. From this consideration also a valid wakf al-al- aulad as provided under the statutes, is a religious institution.
46. It has been argued that since "wakf-al-al-aulad'' has been mentioned by name in clause (b) of section 4 of the Act, it must be read and construed accordingly In the two case of a mixed wakf or a composite wakf, the two parts may be treated separately. That is, the part of the wakf wholly for religious and charitable purposes should be allowed the benefit as provided in the first part of clause (b); the part creating partial trust or wakf-al-al-aulad should be treated as provided in the second part of clause (b). This construction is attractive and appears to be harmonious to the language of clause (b) of section 4 of the Act, but in view of the language of the first part of clause (b) dealing with the exemption of "the agricultural income of the property held under trust or other legal obligation wholly for religious or charitable purposes" unless certain property is earmarked specifically for such purposes, it would not be possible to determine the total agricultural income of the property for the purpose of allowing the benefit of exemption from taxation under the Act. Usually in wakf-al-al-aulads any part of the property dedicated is not so earmarked but only the income. Of course, so far as the second part of such a wakf is concerned, treating the amounts specified in the wakf deed as ''the income applied thereto" the amount may be calculated for the purpose of allowing exemption. So this does not provide an effective and practical solution to the question.
47. In view of the position of private trustees, and wakf al-al-aulads being such trusts, and undoubtedly it being a religious institution. I find that such private trusts have not been excluded from the benefit of exemption as provided in the first part of clause (b) of section 4 of the Act. The wakf in question being a mixed one, that is providing maintenance of wakif's family, children, and descendants and also public charity and religious objects, it comes under the first part of clause (b). I do not find any difficulty in placing the wakf in question in the first part of clause (b) of section 4 of the Act for the purpose of its agricultural income being considered for allowing exemption from taxation under the Act.
48. In the wakf in Khurram Khan Panni's case, a mixed wakf, that is, 1/4 th of the income being applicable for the maintenance of the family of the wakf and 3/4 th of the income being applicable to the charitable purposes, it has been rightly held that the entire agricultural income of the wakf section was exempted from payment of tax under the Act. On the same considerations the wakf estate in the instant case is entitled to the benefit of exemption from payment of tax under the Act.
49. In the circumstances as stated above answer to the second question does not arise. However, if it arise at all, and the wakf is taken in the second category as contemplated under the second part of clause (b) of section 4, the expression ‘income applied thereto' means so much of the income applied or set apart by the wakif in the wakf deeds for the purposes enumerated therein. The said expression cannot be interpreted to mean as income actually applied or spent or finally set apart for application to the purposes mentioned in the wakf deed. Unless the "word actually' is imported as a prefix to the expression "applied thereto" such interpretation cannot be given. And it would not be normal and plain reading of the clause. The word 'applied' means the income as applied by the wakif in the waqf deed but not the income as actually spent by the wakif or the mutwalli. On this question also, with due respect to the learned Judges I find myself in full agreement with the reasons given by the majority Judges in Khurram Khan Panni's case in answering the second question. The High Court has correctly decided the case following the decision in Khurram Khan Panni's case.
In that view of the matter the appeals must fail. Therefore, the appeals are dismissed without any order as to costs.
According to the majority view the appeals are dismissed without any order as to costs.