G.K. Misra, C.J.
1. The petitioner is the Mahant of Emar Muth at Puri which is an ancient public Hindu Religious Endowment. The trust has considerable endowed agricultural properties. The Mahant has been assessed in the status of an 'individual' after the passing of the Orissa Agricultural Income-tax Act, 1947 (hereinafter to be referred to as 'the Act'), for the assessment years 1948-49 to 1967-68 to various sums as mentioned in schedule A of the writ application. The assessments have been made after granting exemption under Section 8 of the Act. In this writ application filed under Articles 226 and 227 of the Constitution, thepetitioner challenges the clause ' and actually spent for the said purposes ' in Sub-section (1) of Section 8 as unconstitutional and ultra vires. According to the petitioner, the entire agricultural income of the trust is not liable to tax under the Act. Counter has been filed on behalf of the opposite parties asserting that the assessments till the end of the year 1964-65 have become final and those for the subsequent years are pending at different stages. It is said in the counter-affidavit that Sections 8 and 9 of the Act are constitutional and are not discriminatory.
2. The short question for consideration in this writ application is whether the clause ' and actually spent for the said purpose ' in Section 8(1) is hit by Article 14 of the Constitution.
3. To appreciate the point in issue Sections 8 and 9 may be extracted :
Section 8 :
(1) Where the assessee is a trustee and the trust under which he holds the property is a trust, created for public purposes of a charitable or religious nature, any sum derived from land held under such trust and actually spent for the said purposes, shall not be included in the total agricultural income of such assessee.
(2) In this section 'purposes of a charitable nature' include relief of the poor, education, medical relief and advancement of any other object of general public utility.'
Section 9 :
' All agricultural income of Muslim trusts, referred to in Section 3 of the Mussalman Wakf Validating Act, 1913, created before the commencement of this Act, shall be excluded from the operation of this Act:
Provided that the share of a beneficiary under a trust under the aforesaid Act, commonly known as the Wakf-alal-aulad shall not be exempted and the tax may be realised from the mutawalli and the basis of taxation shall be the share of each beneficiary. Explanation.--For the purposes of this section, a beneficiary means the settlor, his family, children and descendants. '
4. The main contention, of Mr. Mohanty is that Section 8 of the Act grants exemption only to a sum actually spent for public purposes of a charitable or religious nature while Section 9 grants complete exemption to agricultural income derived from properties held in trust by a Mussalman Wakf. Thus, Sections 8 and 9 while providing for exemption of charitable or religious trusts discriminate between agricultural income derived from lands held under a Hindu public religious trust and a Mussalman wakf without any reasonable nexus although the object sought to be achieved under the statute is to tax the agricultural income derived from land and to exempt the income so derived by public charitable trust. This contention requires a close examination of the ambit of Sections 8 and 9.
5. We propose to deal with Section 9 first. The marginal note to the section to the effect ' Exemption of wakf-alal-aulad ' confines it to a particular class of wakf. The body of the section deals with wakf referred to in Section 3 of the Mussalman Wakf Validating Act, 1913 (hereinafter to be referred to as ' the validating Act'), Section 3 of that Act runs thus:
'3. Power of Mussulmans to create certain wakfs.-- It shall be lawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of the Mussalman law, for the following among other purposes-
(a) for the maintenance and support wholly or partially of his family, children or descendant, 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 payment of his debts out of the rents and profits of the property dedicated : Provided that the ultimate benefit is in such cases expressly or im-pliedly reserved for the poor or for any other purposes recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character.'
6. Wakfs in which the benefits to charity or religion were either illusory or postponed indefinitely, while the property so dedicated was being enjoyed from generation to generation by the family of the wakif, were regarded as opposed to the rule of perpetuities as contained in the Indian Succession and the Transfer of Property Acts. This was so declared in a series of cases by the Judicial Committee (See Abdul Fata Mahomed Ishak v. Rasamaya Dhur Chowdhri, [1895] L.R. 22 I.A. 76 ; I.L.R. 22 Cal. 619(P.C), Mahomed Ahsanulla Chowdhry v. Amarchand Kundu, [1889] L.R. 17 I.A. 28; I.L.R. 17 Cal. 498 (P.C.) and Abdul Gafur v. Nizamudin, [1892] L.R. 19 I.A. 170, I.L.R. 17 Bom. 1 (P.C.)). In those cases their Lordships while emphasising that Mohamedan law ought to govern purely a Mohamedan disposition declined to hold that that disposition in which the benefit was really intended to go to the wakif and his family could be described as charity even under that law.
7. These Privy Council decisions led to agitation in India and accordingly the Validating Act was passed. This Act declared the rights of Mussalmans to make settlement of property by way of wakf in favour of their families, children and descendants. For the purposes of the Validating Act the term ' wakf ' was defined to mean ' the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised, by the Mossalman law as religious, pious or charitable '. This gave a wider meaning to the word ' wakfs ' but only for the purpose of taking them out of the invalidity which would have otherwise existed and which was already authoritatively stated by the Privy Council to have so existed.
8. After this Act was enacted, wakf in which the object was the aggrandisement of family of wakifs without a pretence of charity in the ordinary sense became valid and operative but the intention of the Validating Act was not to give a new meaning to the word 'charity ' which in common parlance is a word denoting a giving to some one in necessitous circumstances and in law a giving for public good. A private gift to one's own self or kith and kin may be meritorious and pious but is not a charity in the legal sense and the courts in India have never regarded such gifts as for religious or charitable purposes even under the Mohamedan law. In Syed Mohiuddin Ahmed v. Sofia Khatun, A.I.R. 1940 Cal. 501 their Lordships said that the Validating Act had not the effect of abrogating the Privy Council decisions on the meaning of ' charitable purpose ' as such.
9. The aforesaid Privy Council decisions and the history of the Validating Act and its effect were fully discussed in Fazlul Rabbi Pradhan v. State of West Bengal, A.I.R. 1965 S.C. 1722 and the principles enunciated by us are based on the Supreme Court decision.
10. On the aforesaid legal position, the conclusion is irresistible that Section 9 of the Act only deals with the cases of wakf-alal-aulad and not other wakfs which are purely for public purposes of a charitable or religious nature. These wakfs come clearly within the ambit of Section 8 of the Act.
11. But for Section 9, the class of wakf-alal-aulad would have come within the ambit of Section 8. Wakf-alal-aulad essentially confines the dedication of the property to the wakif and his family members and, therefore, has been classified differently for the purpose of taxation. In such a case the share of a beneficiary shall not be exempted and the tax may be realised from the mutawalli and the basis of taxation shall be the share of each beneficiary. By the Validating Act such a wakf created for the maintenance and support wholly or partially of the wakifs family, children or descendants was validated, subject, however, to the proviso that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character.
12. Some argument was advanced by Mr. Mohanty as to the scope of this proviso and he contended that there cannot be any other purpose except for the purpose of the poor. We are unable to accept this argument as sound as there can be many other purposes analogous to the one deserving the ultimate benefit for the poor.
13. The legislature has plenary power to classify the subject nf taxation provided there is a reasonable differentia in relation to the object of the Act. The object of the Act is to realise agricultural income-tax from the income of the agricultural properties and to exempt the amount actuallyspent in case of charitable or religious trusts. In essence, wakf-alal-aulad is a trust in favour of the wakif and the members of his family and his descendants. No amount out of the income of the wakf property is spent for any public purposes of a charitable or religious nature so long as the property is tied down to the members of the family and the descendants of the wakif. The legislature is, therefore, justified in making proper classification and not allowing any exemption in case of wakf-alal-aulad and in taxing the share of the beneficiaries, treating each of them as individual though the tax is to be realised from the mutawallt. Mohamedan trusts for wakfs of a truly charitable or religious character come clearly within the ambit of Section 8(1) and no discrimination is made between Hindu, Mohamedan, Christian or Sikh trusts. Section 8 is not hit by Article 14 of the Constitution.
14. Even assuming that there is any discrimination it is Section 9 which will be hit by Article 14 and not the impugned clause in Section 8 which is of a general nature and is applicable to all categories of trusts.
15. On the aforesaid analysis, we are clearly of opinion that the clause ' actually spent for the said purposes' in Section 8(1) of the Act is not ultra vires Article 14 of the Constitution. The assessee was rightly assessed.
16. The writ application has no merit and is accordingly dismissed ; but, in the circumstances, there will be no order for costs.
Acharya, J.
17. I agree.