G.P. Singh, J.
1. This is a case stated by the Appellate Tribunal under Section 27(1) of the Wealth-tax Act, 1957, referring for our answer the following question of law :
'Whether, on the facts and in the circumstances of this case, the value of the properties covered by the document dated October 14, 1953, could be included in the net wealth of the assessee as on the valuation date, viz.. 31st March, 1957?'
2. The facts and circumstances leading up to this reference are these: The assessee, Begum Hashmatbi, was assessed to wealth-tax for the year1957-58 by the Wealth-tax Officer on 30th November, 1961. During the assessment proceedings the assessee contended that the properties in her possession were the subject-matter of wakf and were not liable to be included in her net wealth. This plea was based on a document executed by the assessee and her husband, Lt. Col. Khan Bahadur Ahmed Baksh, on 14th October, 1953. The husband had died some time in 1955. The Wealth-tax Officer construed the document as a will and held that the wakf was to come into existence after the death of the assessee and, therefore, the properties covered by the will were liable to be included in the net wealth of the assessee. The assessee went up in appeal to the Appellate Assistant Commissioner, who agreeing with the view taken by the Wealth-tax Officer dismissed the appeal on 27th November, 1962. The assessee then preferred a second appeal to the Appellate Tribunal, which was allowed in her favour on 20th June, 1964. The Tribunal held that the document created a wakf and the properties became trust properties and as the assessee ceased to be their owner they could not be included in her net wealth. The Commissioner of Wealth-tax then applied for a reference under Section 27(1) and the Tribunal referred to us the question of law that we have already set out.
3. The main contention raised by the learned counsel for the revenue is that the document dated 14th October, 1953, is merely a will as the wakf under that document is to come into existence after the life of the assessee and the properties to which the document relates belong to the assessee and are held by her without any trust or legal obligation for religious or charitable purposes, and, therefore, the properties ought to be included in the net wealth of the assessee.
4. The document in question bears the title 'Lt. Col. Khan Bahadur and Begum Ahmed Baksh Trust Fund and Wakf Deed according to 192 Mulla Shareeat of 1950.' The preamble of the document reads :
'Will or deed executed by Lt. Col. Khan Bahadur Ahmed Baksh O.B.E. and his wife Hashmatbi alias Shantibi for execution after the demise of either of us or both. . . .'
5. The first clause of the document declares that 'we give in wakf after our demise all our movable and immovable property'. It also contains a list of the religious and charitable purposes in respect of which the wakf is to operate, most important of them being the establishment of a Girls' Intermediate College in the name of Begum Ahmed Baksh. Clause (2) describes the immovable properties which consist of two buildings, namely, 'Allah Kothi' and 'Ram Nam Kothi.'
6. This clause further recites that 'these two kothis are not to be disposed of on any account as the proceeds of these two wakfs will be the main source of feeding or maintaining the above wakf deeds'. Clause (3)lists the movable properties which consist of fixed deposits and current accounts in banks and shares in certain companies. All these properties are stated to be in joint names. Then follow Clauses (4) to (8), which read as under:
'(4) On the demise of either of us the survivor will be in possession of all the movable and immovable property aforementioned and also any addition and alteration which may hereafter accrue after the signing of this deed till her or his demise.
(5) After, the demise of both of us, it is to be taken over as a wakf vide 192 Mulla Shareeat of 1950 for religious and charitable purposes as mentioned above, for which a trust committee is to be formed.
(6) I and my wife will be the trustee of the property till we both or either of us is alive, and we will give Rs. one hundred only per mensem to these various charitable and religious institutions.
(7) The rest of the income is to be utilised by us or either of us by the mutual consent or the survivor, as the case may be for our maintenance and for the upkeep of the property and buildings, i.e., Kothi No. 214 Allah Kothi and No. 215 Ram Nam Kothi.
(8) During our lifetime we will manage this trust and after the demise of either of us, the survivor will manage the trust and during his or her lifetime he or she will appoint trustees.'
7. The document then contains directions for the establishment of the college. The expenses for constructing the building are to be met from the proceeds of sale of shares and the fixed deposit account. The income of the properties is estimated to be nearly Rs. 30,000 and the document provides as to how this income is to be spent. A sum of Rs. 16,641 out of the annual income goes towards smaller charities, maintenance of the properties and other incidental expenses and the rest is to be utilised for purposes of the Girls' Intermediate College.
8. By reading the document as a whole two things are clear. Firstly, the executants intended to reserve nearly the entire income of the properties for their benefit during their lifetime ; the only obligation during their life was to spend a sum of Rs. 100 per month on the charities and the rest of the income was to be spent for the maintenance and upkeep of the properties. Secondly, it is also clear that the executants intended that after their demise the properties be utilised for the charitable objects mentioned in the document. The main point, however, is whether the executants dedicated the corpus of the properties for charitable purposes from the date of execution of the document itself or whether they intended the dedication to come into effect after their demise. Clauses (1) and (5) of the document, no doubt, go to show that the wakf was to come into effect after the demise of the executants, but Clauses (6) and (8) proceed on thebasis as if a trust came into existence on the date of execution of the document itself. Further, though the executants reserved for themselves almost the entire income during their life, they did not reserve any right of disposal of the corpus and in respect of the two buildings, namely, 'Allah Kothi' and 'Ram Nam Kothi', which are the most valuable items of the properties, it was specifically declared that they were not to be transferred on any account. Then, reference to '192 Mulla Shariat 1950' in the title and Clause (5) of the document has some significance. The words--'192 Mulla Shariat 1950'--refer to Section 192 of Mulla's Principles of Mohamedan Law, 13th edition, which was published in 1950. Section 192 states the proposition that under the Hanafi law, the wakif (dedicator) may provide for his maintenance out of the income of the wakf property and he may even reserve the whole income for his life. To find out as to what the executants intended or what is the legal effect of the document, it must be read as a whole. The clauses in the document stating that the executants will act as trustees during their lifetime, absence of any provision preserving the interest of the executants in the corpus of the properties, clear provision to the effect that the two buildings will on no account be transferred and reference to Section 192 of Mulla's Mohamedan Law, which speaks of a waqf with reservation of life interest in the dedicated properties, are strong indications that the executants intended that the corpus of the properties as distinct from its income be then and there dedicated for charitable purposes. Clauses (1) and (5) of the document, which contain words prima facie showing that the wakf was to come into effect after the death of the executants, have to be read harmoniously with other clauses in the document and when so read they must be understood as conveying that the income of the properties was to be utilised for charitable purposes after the demise of the executants and not that the dedication of the corpus itself was to remain postponed during the lifetime of the executants. A formal dedication or use of the word 'wakf' or an express transfer of the corpus of the properties to God is not necessary for constituting a wakf ; the dedication of the properties to purposes recognised by Mahomedan law as religious or charitable may be inferred and that in itself will give rise to a wakf : [Jewun Doss Sahoo v. Shah Kubeer-ood-Deen, [1840] 2 M.I.A. 390 (P.C.); Khawaja Muhammad Hamid v. Mian Mahmud, [1923] L,R. 50 I.A. 92, 104 ; A.I.R. 1922 P.C. 384. and Mohammad Sabir Ali v. Tahir Ali, A.I.R. 1957 All. 94]. If the effect of the document is immediate dedication of the corpus of the properties with reservation of life interest in the income, the document will amount to wakf, whereas if the dedication is to come into effect after the death of the executant, the document will amount to a will: [Jaun Bebee v. Abdolla Barber, [1838] 1 Fultons 345.; Mahomed Zain Khan v. Nurul Hasson Khan, A.I.R. 1924 All. 113. and Ma E. Khin v. Maung Sein, A.I.R. 1925 Rang. 71, 76.].
9. Having given our anxious consideration to the language used in the document, we have reached the conclusion that the executants dedicated the corpus of the properties for charitable purposes reserving to themselves the income for their life, and that the document is a deed of wakf and not a will or wakf-bil-wasiyat.
10. According to Mohamedan law once a property is dedicated for religious or charitable purposes, the right of the wakif is extinguished and the property stands transferred to God the Almighty. It was so held by the Privy Council in Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar, A.I.R. 1922 P.C. 123, 127., where Mr. Ameer AH, who delivered the judgment of the Board, observed as follows:
'But the Mahommedan law relating to trusts differs fundamentally from the English law. It owes Its origin to a rule laid down by the 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'. When once it is declared that a particular property is wakf, or any such expression is used as implies wakf, or the tenor of the document shows, as in the case of Jewun Doss Sahoo v. Shaft fatbeer-ood-Deen, that a dedication to pious or charitable purposes is meant, the right of the wakf is extinguished and the ownership is transferred to the Almighty. The donor may name any meritorious object as the recipient of the benefit. The manager of the wakf is the mutawalli, the governor, superintendent, or curator. In Jewun Doss Sahoo's case, the Judicial Committee call him 'procurator'. It related to a Khankha, a Mahomedan institution analogous in many respects to a mutt where Hindu religious instruction is dispensed. The head of these Khankhas, which exist in large numbers in India, is called a sajjadanashin. He is the teacher of religious doctrines and rules of life, and the manager of the institution and the administrator of its charities, and has in most cases a larger interest in the usufruct than an ordinary mutwalli. But neither the sajjadanashin nor the mutwalli has any right in the property belonging to the wakf; the property is not vested in him and he is not a 'trustee' in the technical sense.'
11. The view expressed by the Privy Council in Vidya Varuthi's case was quoted with approval by the Supreme Court in Zain Yar Jung v. Director of Endowments, A.I.R. 1963 S.C. 985, 989.. Applying these principles to the instant case, it must be held that after execution of the document the right of the assessee and her husband in the properties covered by the wakf was extinguished and the ownership was transferred to God.
12. According to Section 3 of the Wealth-tax Act, wealth-tax is charged inrespect of the net wealth on the valuation date of every individual, Hindu undivided family and company. The expression 'net wealth' is defined in Section 2(m) and means the aggregate value computed in accordance with the provisions of the Act of all the assets belonging to the assessee on the valuation date. By reading this definition in Section 3, it becomes clear that an assessee is liable to pay wealth tax in respect of assets belonging to him and assets not belonging to him on the valuation date cannot be included in his net wealth.
13. We have already said that on execution of the document dated 14th October, 1953, the ownership of the assessee and her husband in the proper-tics covered by the document was extinguished and was transferred to God the Almighty. From that date the corpus of the properties ceased to belong to the assessee. It logically follows that the properties could not be included in the net wealth of the assessee on 31st March, 1957, which is the valuation date.
14. Before concluding we must notice two other arguments addressed at the bar. It was contended for the revenue that the document can be revoked by the assessee and, therefore, the wakf has not come into effect. This argument proceeds on the assumption that the document is a will. We have already stated that the document on its proper construction is a wakf deed reserving to the executants income of the properties for their life. The document, therefore, is not capable of being revoked. Even on the footing that the document is a will, the point for consideration will be whether after the death of the husband it was open to the wife to revoke the will. There appears to be some difference of opinion on the point whether a joint and mutual will can be revoked after the death of one of the testators if there be no specific provision in the will prohibiting revocation. According to one view, merely because the survivor benefits under the will, his power of revocation is not taken away unless there be specific contract in the will forbidding revocation : Bhawani Prasad v. Smt. Surendra Bala, A.I.R. 1960 All. 126,. According to the other view a joint mutual will becomes irrevocable on the death of one of the testators if the survivor receives benefits under the will even if there be no specific contract prohibiting revocation : Kuppuswami Raja v. Perumal Raja, A.I.R. 1964 Mad. 291.. We do not, however, want to express any opinion on this point as on our finding that the document with which we are concerned is a wakf, the point when a joint and mutual will can be revoked does not arise for our consideration.
15. The other argument which we here notice was addressed for the assessee. It was contended on her behalf that her case also fell within the exception contained in Section 5(1)(i) of the Act. That section provides thatwealth-tax shall not be payable by an assessee in respect of 'any property held by him under trust or other legal obligation for any public purpose of a charitable or religious nature in India.' The words 'other legal obligation' may include wakfs : [Tribune Press Trustees, Lahore v. Commissioner of Income-tax, [1939] 7 I.T.R. 415 (P.C.).]. But for bringing the case within the exception, it will have to be considered whether the wakf property, in the instant case, where nearly the whole of the income during the life of the assessee is being utilised for her maintenance, was held on the valuation date for any public purpose of a charitable or religious nature. Reference in this connection may be made to two cases of the Supreme Court, viz., Fazlul Rabbi Pradhan v. State of West Bengal, A.I.R. 1965 S.C. 1722. and Yeshwant Rao v. Commissioner of Wealth-tax, [1966] 61 I.T.R. 444; [1966] Supp. S.C.R. 419.. In Fazlul Rabbi's case certain wakfs, in which family endowments were substantial along with provisions for religious or charitable objects, were held not to fall within the words--'other legal obligation exclusively for a purpose which was charitable or religious or both.' And in Yeshwant Rao's case where under a trust deed assets were first held for a fixed period for the benefit of a charitable trust and thereafter for the benefit of the children of the settlor, it was held that during the period the assets were held for the benefit of the charitable trust, they could not be said to be held for the benefit of the children within Section 4(1)(a)(iii) of the Wealth-tax Act as it stood before its amendment by Act 46 of 1964. These cases are not directly in point and we do not propose to decide whether the assessee's case falls within the exception contained in Section 5(1)(i) of the Act, for our finding that the properties covered by the wakf-deed cannot be included in the net wealth of the assessee under Section 3 of the Act is in itself sufficient to answer the reference.
16. For the reasons stated above, we answer the question referred to us in the negative. The assessee will be entitled to her costs of this reference. Counsel's fee Rs. 200.