TaxTMI 
TaxTMI 
1945 (6) TMI 2
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....d profits of the two properties are to be distributed. He directs, the trustees first to pay the outgoings and then to pay the net balance of the income of the two properties to the settlor during his life for his absolute use; and then he directs that the trustee or mutawalli who is to come after him should, after his death, set apart twenty-five per cent, of the gross rents of the trust properties to meet expenses of heavy repairs and utilise the balance of the income in the following manner:- (1) one-third share for charitable purposes according to the Mahomedan law which are mentioned specifically in the clauses that follow; (2) one-eighth of the balance to his widow and one-half of the remaining balance to his son Abdul Karim Haji Ahmed and his descendants; (3) one-fourth of the balance to his daughter Rabiabai; and (4) the remaining one-fourth to his daughter Rahimabai and her descendants. The settlor further provides that if there be no descendants of any of his said children, the share of the income should be utilised for the same charitable objects which are subsequently mentioned in the deed and to which reference was made when he se....
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....ritable purpose is of a permanent nature. It is open to him to postpone benefit being conferred upon charity till the extinction of all his family and his descendants. 4. Now in the trust before me one thing is perfectly patent that the settlor wanted specific charities which he has mentioned in the four clauses in the trust to benefit in the event of the share of any line of his descendants or children becoming extinguished. It is clear that the first of these so-called charitable objects, the payment of marriage expenses, is not charity according to the Mahomedan law. Those payments have already been made by the trustees, and the question in that sense becomes academic. With regard to the second object, payment of Rs. 200 every year to a person belonging to the family of the, settlor who may be poor and in need of money, payment to poor relatives is really good charity under the Mahomedan law; but as Mr. Taraporewalla has pointed out, when we are dealing with the Mussalman Wakf Validating Act, we must consider a particular charity benefiting on the extinction of the family of the settlor and, therefore, it is necessary to consider whether the charity selected by the settlor wh....
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....ld hardly exhaust a very small proportion of the income of these properties. The part of the income set apart for being expended on these charitable objects after the death of the settlor is in itself sufficient to defray all the expenses and, therefore, in the event of the family .and the descendants becoming extinct and the income becoming available for charity it would be impossible to spend that income on the specific objects enumerated by the settlor. Therefore, in my opinion, the whole of the trust property is not given to charity as an ultimate bequest, and unless that is done, the most important provision of the Mussalman Wakf Validating Act of 1913 is not satisfied. 6. The trust deed may also be looked at from another point of view. It is open to a settlor when he belongs to the Hanafi sect to reserve for his own maintenance and support during his lifetime the income of the trust property. In this case what the settlor has done is that he has reserved for himself during his life for his absolute use the whole income of the trust property. The income is not reserved for his maintenance and support but for his absolute use. The Legislature advisedly did not permit a Hanaf....
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....s death the trustees should spend a certain proportion of the income of the property on certain charitable objects which he has Specified and to which I have referred. That particular provision in the deed would-not amount to a provision for his descendants with an ultimate gift to charity. It is really a gift to charity in praesenti through the medium of a trust. What the settlor says is this: " I make the gift to charity. I appoint trustees. I hand over the subject of the gift to trustees. But I make a stipulation with the trustees that they should not spend the money on charity so long as I am alive and give the income to me". As far as I can see, there is nothing in Mahomedan law to prevent a Mussalman from creating a trust of that nature. Of course the charitable objects must be such as are recognised as good under Mahomedan law. 8. I have already held that the provisions with regard to feasting the Cutchi Memons and the payment of Rs. 300 among the Sayyeds and the Fakirs are not charitable objects as understood by the Mahomedan law. But as far as the provision with regard to the payment of Rs. 200 every year to not more than three persons belonging to the family of the set....