TMI Blog1979 (10) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... d Consequently it could not be said that the interest of the deceased extended to the whole income of the property ? " The estate duty assessment came to be made on the death of one Abdul Khader Fakhri on 4th October, 1964. He left behind him his wife, 3 sons and 4 daughters. They did not file any account under the E.D. Act as, according to them, the property in respect of which the estate duty proceedings were relevant, was a wakf property, and the deceased was only a mutawalli and hence no property could be said to have passed on his death either under s. 5 or s. 6 or s. 22 of the Act. The Assistant Controller of Estate Duty tried to impress upon them the position of their liability under the E.D. Act in the light of certain proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime of death of the deceased and that the value of the benefit of the deceased would have to be evaluated accordingly. In the view of the Tribunal, if there were six persons other than the deceased, who were entitled to be maintained out of the income of the property, then 1/7th of the value of the property would have to be taken as assessable to estate duty. The Assistant Controller was, therefore, directed to make a fresh assessment in accordance with the findings of the Tribunal. It is as against this order of the Tribunal, the Controller has obtained the reference of the question already extracted. The proceedings before the City Civil Court, Madras, were commenced by the deceased filing a suit O.S. No. 1538 of 1960. The suit was for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he burial ground and the public mosque was wakf property and that the rest of the suit property was a private property. The State Wakf Board, therefore, filed an appeal, which came before the learned principal judge, City Civil Court, Madras. He went into the question whether the suit property or any portion thereof was wakf property as contemplated by the Wakf Act, 1954, and whether the notification issued by the Wakf Board was illegal and void. He was not prepared to accept either the case of the Wakf Board or of the plaintiff (deceased) who took the extreme positions, one stating that the whole was wakf property and the other contending that the whole was private property. In the course of his judgment, the learned judge observed as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board in respect of the suit property to the extent to which it was inconsistent with the above view was void. This judgment of the learned principal judge, City Civil Court, Madras, has become final. The result of the finding of the City Civil Court about which there is no dispute, is that there is a partial dedication for charity and that the income from the other part is to be utilised for the maintenance of the male descendants of the original grantee, Shah Abdul Quadir. The exact number of male descendants eligible for the maintenance as on the date of death is not quite clear from the order of the Tribunal. However, this will be a matter for being ascertained at the enquiry by the Assistant Controller. The learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur opinion, militates against the nature of the right which the deceased had in the property. The Supreme Court in Bibi Siddique Fatima v. Saiyed Mohammad Mahmood Hasan, AIR 1978 SC 1362, set out the principles applicable to the ownership of wakf property, where part of it is to be utilised by the descendants of the original founder. At page 1368, it is laid down as follows : " Strictly speaking, the ownership of the wakf property has no jural conception with any exactitude. The corpus is tied down and is made inalienable. Only the usufruct and the income from the corpus of the wakf property is available for carrying out the objects of the wakf." At page 1369, it is stated as follows : " A mutawalli is like a manager rather than a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome which the mutawalli realised from the property in so far as it related to the non-charitable purposes, belonged to him and that he merely applied the income for the maintenance of the other male descendants of the original grantee. The position of a mutawalli being merely to see that the beneficiaries got the advantage of usufruct, the income did not accrue to him in any personal capacity. He was not in the position of a person who applied the income that was already his. The right to be maintained had accrued to the male descendants of the original grantee as a result of the creation of the wakf. What the mutawalli did was merely to discharge his obligation to see that the other members, who were entitled to be maintained, got their sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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