Judgment :- 1. The point that arises for decision in this case is as to whether S.46 of the Wakf Act, 1954 is attracted to that portion of the income of the Abdul Sathar Haji Moosa Dharmasthapanam (of which the petitioners are the managing trustees) which under Ext. P-1 Will of 1099 M. E. (1923 A.D.) is to be utilised for the maintenance of the testator's poor and needy descendants. Under that Will the income of the Dharmasthapanam derived from the B schedule properties mentioned therein which the testator, late Abdul Sathar Haji Moosa Sait, permanently dedicated in favour of the Dharmasthapanam is to be apportioned in the ratio of 1:2:1 for the objects mentioned in Clause.6, 9 and 13 respectively. The objects stated in Clause.3 are admittedly purposes recognised by Muslim Law as pious, religious or charitable. Under Clause.13,1/4th of the income is to be utilized for acquiring new properties for the Dharmasthapanam, the income derived from which also, as per Clause.14, is, in turn, subjected to the apportionment in the same ratio and utilisation for the same purposes as the income from the B schedule properties. The remaining 50 per cent of the income has been set apart for the maintenance and education of the testator's descendants [through his predeceased son and through his (the testator's) daughters] who are indigent and needy, a situation which the testator hopes and expects would not arise and he earnestly prays to Almighty God, to save them from. It is further provided in Ext. P-1 Will that on failure of this object for the reason that there are no such descendants as are poor and destitute, the whole of this 50 per cent of the income, or otherwise, the surplus, if any, after meeting the expenses on this score that is available out of this 50 per cent of the income, as the case may be, is to be used, along with the 25 per cent of the income directed to be spent for acquiring new properties, for that purpose. Above all, on total failure of descendants wherefore no occasion will thereafter arise to apply any portion of the income for the maintenance of the testator's descendants who are in needy circumstances, that is to say, on a complete failure of this object, the whole of the 50 per cent of the income allocated for that purpose, is also to be spent for the objects mentioned is Clause.3, which, as already noticed, admittedly, are purposes of a pious, religious or charitable nature under Muslim Law, Under Clause.13 there is a complete and absolute prohibition of sale of the Dharmasthapanam's properties or creation of encumbrances thereon. 2. It is to be noted, that under the scheme for the application of the income (the manafi) as set down in Ext. P-1 Will, the testator does not take any temporal benefit thereunder (such benefit is prohibited by all schools of Muslim Law except under the Hanafi Law as expounded by Abu Yusuf See Tyabji on Muslim Law, 4th Edition, P. 4950) nor does it benefit any of his descendants who are not indigent and needy. The object is not aggrandizement of the testator's family estate, but to help such of his descendants who by fortuitous circumstances happen to be indigent and destitute, and to ameliorate their conditions of life to a little extent. That the beneficiaries thereunder constitute one specified class of the poor, the testator's poor descendants, and not the poor as a class, will not in my view make the object of the scheme a secular one and not a pious, religious or charitable one recognized by Muslim Law. Amelioration of the conditions of life of the poor, and their maintenance, be they one's own relations or not, is a meritorious object in any religion, and the motive behind it is a religious one, namely to approach God by doing good to his fellow men who are needy and destitute. It is therefore pious and charitable as well. 3. I am supported in the above view by the decision of Chagla J. (as he then was) in Abdul Karim Adenwalla v. Rahimabai and others AIR. 1946 Bombay 342 and also the decision of the Allahabad High Court in Mukarram Ali Khan v. Anjuman-unnissa Bibi and Asghar Ali Khan AIR. 1924 All. 223. In the first mentioned case, concerning the provision in the Wakf deed that a sum of Rs. 1946 Bombay 342 and also the decision of the Allahabad High Court in Mukarram Ali Khan v. Anjuman-unnissa Bibi and Asghar Ali Khan AIR. 1924 All. 223. In the first mentioned case, concerning the provision in the Wakf deed that a sum of Rs. 200 is to be paid every year each to not more than three persons belonging to the Wakif's family, the learned judge said that 'payment to poor relatives is really a good charity under the Muhamaden Law". In the other case Rafi and Stuart JJ. said as follows: "The award given by the arbitrators found the property now in suit as wakf property dedicated by Mardan Ali Khan for the purposes of charity, including maintenance of his relatives and his dependents, and for the reading of the fatcha for the salvation of his soul. Now we have to consider whether the abovementioned objects would constitute objects of a valid wakf. The contention on behalf of the plaintiff-respondent No. 1, the vendee, is that the dedication was really for the benefit of Mardan Ali Khan's descendants and for keeping the property in bis family, and that the mention of the dependents, the charitable purposes and the fatcha was merely a pretence to evade the law under which a dedication for the maintenance of the members of a family was, at that time, invalid. We have given the due consideration to the argument of the learned Counsel for the plaintiff-respondent No. 1, but we find ourselves unable to agree with him. We think that the real object of Mardan Ali Khan was to dedicate a portion of his property for the reading of the fatcha and for unnur-i-khair (charitable purposes) including the maintenance of his poor relatives and dependents. Such a dedication is, it is not denied, valid under the Muhamedan law." 4. In Fazlul Rabbi Pradhan v. State of West Bengal AIR. 1965 SC. 1722=1965 (3) SCR. Such a dedication is, it is not denied, valid under the Muhamedan law." 4. In Fazlul Rabbi Pradhan v. State of West Bengal AIR. 1965 SC. 1722=1965 (3) SCR. 307 relied on by the learned counsel for the petitioners the question considered was as to whether 'Muslim Wakfs in which either the ultimate benefit to charity is postponed till after the exhaustion of the Wakfs family and descendants or the income from the wakf estate is applied for the maintenance of the family side by side with expenditure for charitable or religious purposes' can be said to be 'exclusively for purposes of a religious or charitable nature', and thus protected by S.6 (1) (i) of the West Bengal Estates' Acquisition Act, 1953 from the operation of that Act. The Supreme Court said that they are not exclusively for charitable purposes since the objects which are religious or charitable or both are mingled with some purposes which are secular and some which are family endowments very substantial in character. Hidayatullah, J. speaking for the court also therein pointed out as follows (at p. 317 of the SCR.): "If the latter benefits had ceased or the families had become extinct leaving only the charities or if the provisions were for poor and needy though belonging to the wakfs family, other considerations might conceivably have arisen, as was stated by Bachawat, J. in his opinion. (Emphasis given)." I do not think that this decision is of any assistance to the petitioners to argue that the provision in Ext P-1 Will to maintain the testator's 'poor and needy' descendants does not accord with Muslim Law or the object thereof is not charitable. (Emphasis given)." I do not think that this decision is of any assistance to the petitioners to argue that the provision in Ext P-1 Will to maintain the testator's 'poor and needy' descendants does not accord with Muslim Law or the object thereof is not charitable. No doubt the Supreme Court in this case pointed out that (at p 316 of the SCR.) '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 Mahomedan Law' and that 'neither the (Mussalman) Wakf Validating Act, 1913 nor the Shariat Act, 1937 had the effect of abrogating the Privy Council decisions on the meaning of charitable purpose as such', but as is evident from the passage extracted above this statement of Law is not to be understood as wide as to include within it a provision for maintenance of the indigent and destitute members of the Wakifs family. 5. Another authority relied on behalf of the petitioners is the decision in Thakur Mohammed Ismail v Thakur Sabir Ali and others AIR. 1962 SC. 1722. As stated in para 12 of that decision the court was not there concerned with Mahomedan Law and what constitutes a charitable use under that law. In that case one of the questions that fell for consideration was whether a wakf deed where under an insignificant portion of the income would be used for certain religious purposes, and the rest of the income, for the benefit of the wakif and his descendants from generation to generation till the line of the wakif is completely extinct when alone the whole of the income would become available for use for charitable or religious purposes, is hit by the rule against perpetuity statutorily laid down in S 12 of the Oudh Estates, Act, 1869, an Act which applies not only to Mahomedan Talukdars but to talukdars of all religions. S.18 of that Act read with the Mussalman Wakf Validating Act, 1913 was attempted to be pressed into service to save the above said wakf from the clutches of the rule against perpetuity enunciated in S.12 of the above said Act; reliance was also placed on the dissenting judgment of Ameer Ali J in Bikani Nia v. Shuklal Poddar ILR 20 Cal. 116 (FB). The Supreme Court noticed that in Abul Fata Mohamed Ishack's case 22 I. A. 76 (PC.) it was ruled that a wakf under which the beneficiaries were the descendants of the wakif could not be treated as one for charitable purpose even under the Mohamean Law, and said that though under the Wakf Validating Act a Muslim can create a wakf-alalaulad, it does not mean that the purpose of such a wakf is necessarily a religious or charitable purpose. It was held that that wakf deed is not saved under S.13 of the Oudh Estates, Act, 1869 from S.12 of that Act-under S.18 an estate or any portion thereof or any interest therein cannot be given to religious or charitable use except by an instrument of gift signed by the donor and attested by two or more witnesses not less than three months before his death and presented for registration within one month from the date of its execution and registered, and the Supreme Court construed this provision as providing the procedure for making gift for charitable and religious purposes without in any way violating S.12 in so far as that section does not, like S.18 of the Transfer of Property Act, 1882, exempt a transfer 'for the benefit of the public in the advancement of religion, knowledge, commerce, health, safety or any other object beneficial to mankind'. I do not think that this decision in any manner is helpful to the petitioners to contend for the position that the provision in Ext P-1 for maintenance of the testator's poor and needy descendants is not a pious, religious or charitable object under Muslim Law, particularly in the light of the later and larger Bench decision of the Supreme Court discussed in the preceding paragraph. 6. 6. The Privy Council in Abdul Fate Mahomed Ishack's Case 22 I. A. 76 (P.C ), as succinctly stated in Mulla's Transfer of Property Act, 1882, 6th Edition, Page 115, 'held that a gift to remote and unborn generation is forbidden by Mahomedan Law except in the case of wakf, and that a wakf is invalid if the gift is illusory.' In that case 'the income of the wakf property was to be applied in the first instance for the benefit of the settlor's descendants from generation to generation, and the trust in favour of charity was not to come into operation until after the extinction of the whole line of the settlor's descendants' wherefore the Board held 'that the gift to charity was illusory, and that the sole object of the settlor was to create a family settlement in perpetuity, and that the provision for the settlor's family was therefore invalid' see Mulla's Principles of Mahomedan Law, 18th Edition, Page 213. A private wakf, that is wakf¬alal-aulad with the primary object of virtually tying up the property in the family by providing for the application of its income for the benefit of the wakif's family and his descendants, rich and poor, thereby postponing utilization of the income for the benefit of the poor or other religious, pious or charitable purposes until after the extinction of the family was considered by the Board in several cases including the above said case to be an attempt to evade the rule against perpetuity. Private Wakfs, whose substantial portion of the income from the wakf-property is to be applied as above for the benefit of the wakif's family and his descendants with a direction to apply an insignificant portion of the income concurrently for the benefit of the poor or other pious, religious or charitable purposes were also considered by the Board to be a pretentious wakf for the purpose of escaping from the rule against perpetuity. In both cases the primary object of benefiting the family and descendants from generation to generation was viewed by the Board as a secular purpose devoid of any 'religious motive a desire to approach God which is an essential feature of wakf' (See Tyabji on Muslim Law, 4th Edition Page 495) the so called wakif's intention being according to the Board, only to circumvent the rule against perpetuity. This view, perhaps, may be open to doubt since 'approach to God may be made only by an act that is meritorious in Islam, and 'thus sadaga (or gift made with a desire to approach God, quic quid dater Doo sacrum, ut pars opum) may be made equally to the rich and the poor'. [See Tyabji on Muslim Law, 4th Edition, Page 495 a passage based on Dail 1545 (554) 1.6], or, as pointed out in Mulla's Mahomedan Law, (18th Edition) Page 214: 'It can hardly be doubted that under the pure Mahomedan Law a wakf exclusively for the benefit of the settlor's family and descendants was valid', but suffice to point out that this was not recognised by the Board as a meritorious act in Islam. The decision in Abdul Fata Mohamed Ishack's Case 22 I.A. 76 PC. and the consequent representations in that behalf led to the legislation of the Mussalman Wakf Validating Act, 1913 where under the two classes of wakfs-alal-audlad above-mentioned made thereafter, in the first instance, became to be recognized as valid and of the Mussalman Wakf Validating Act in 1930 giving retrospective effect to the former statute. Thus there can be a valid wakf-alal-aulad now for objects which were characterized by the Board as secular in nature, and it appears to me that to the extent such a wakf-alal-aulad is for such secular objects (as understood in the background of the legal history of family settlements by way of wakfs briefly sketched above) it is outside the ambit of the Wakfs Act, 1954 in so far as under the inclusion clause (iii) of S.3(1) thereof a wakf-alal¬aulad is a wakf coming within the body of that definition clause only 'to the extent to which the property is dedicated for any purpose recognized by Muslim law as pious, religious or charitable' so approaching the problem raised in this case, namely whether Ext. P-1 wakf, which according to the learned counsel for the petitioners is a wakf-alal-aulad and according to the learned counsel for the respondent a wakf simpliciter, is to any extent fora secular purpose, the answer thereto is that tested by that principles laid down by the Privy Council, it is not, for the reasons set out in the beginning of this judgment. 7. 7. Some reliance was placed on behalf of the petitioners on The Abdul Sathar Haji Moosa Sait Dharmastapanam, Trivandrum v. The Commissioner of Agricultural Income Tax, Kerala, Trivandrum AIR. 1974 SC. 1795 where construing Ext. P-1 Will as having earmarked 3/4th of the income of the B Schedule properties primarily for the benefit of near relations of the testator, the Supreme Court held that the part of the bequest cannot be considered to be a public charitable trust for the purpose of S.4(b) of the Kerala Agricultural Income Tax Act, 1950 so that the same is liable to be taxed thereunder. Assuming the same to be so and without going into that question herein as it is unnecessary since the Wakf Act, 1954 would govern private wakfs-wakfs-alal-aulad-also, the point that falls for decision herein is as to whether the object and purpose for which 50 per cent of the income from the B Schedule properties has to be applied is a 'purpose recognized by Muslim Law as pious, religious or charitable,' an expression which finds place both in the body of S.3(1) and in inclusion clause (iii) thereof or is that object to any extent otherwise. Therefore, it is also not necessary to decide whether Ext. P-1 evidences a wakf simpliciter falling within the body of S.3(1) as contended on behalf of the respondent, or whether it is a wakf-alal¬aulad coming within inclusion clause (iii) thereof. I have for reasons stated earlier found that the said object is one recognized by Muslim Law as 'pious, religious and charitable'. The objects mentioned in Clause.3 of Ext. P-1 are admittedly so recognized by Muslim Law. The remaining I/4th of the income is to be invested for acquiring new properties for the Dharmasthapanam, the income from which also, in turn, is to be spent for the same purposes and in the same manner. There can be no doubt that this object of acquiring with a reasonable portion of the income new properties for the charity to earn additional income to be spent for objects which are recognized by Muslim Law to be pious, religious or charitable, in itself, is one so recognized, for then only can the charity expand its charitable activities. S. 46 of the Wakf Act, 1954 is attracted to the income in question. Dismissed. No costs.