Karnataka High Court
The Karnataka Board Of Wakf, Bangalore vs State Of Karnataka And Others on 16 March, 2000
Equivalent citations: 2000(3)KARLJ602, 2000 A I H C 3432, (2000) 3 KANT LJ 602
Author: M.P. Chinnappa
Bench: M.P. Chinnappa
ORDER
1. Both the 2nd and 3rd respondents filed application for grant of occupancy rights in respect of land bearing S. Nos. 123 and 124 of Honnavalli Village in Tiptur Taluk. The 2nd and 3rd respondents are common and the 3rd respondent is under the control and administration of the petitioner. The lands are claimed to be wakf property attached to a wakf institution called Jamia Masjid of Honnavalli. It is asserted that the lands are under cultivation through its employees and managers. That the 3rd respondent herein filed an application for grant of occupancy rights on behalf of Jamia Masjid as it is an inamdar. The 4th respondent also filed an application claiming that he is a kazi and the lands are endowed to the Jamia Masjid and rendering services to the institution. The Land Tribunal in the first instance rejected the application of the 4th respondent and hence, he filed W.P. No. 3274 of 1982 on the file of this Court. The said writ petition came to be allowed on 11-4-1984 remanding the case for fresh enquiry. In the second enquiry, the Land Tribunal granted occupancy rights in favour of 4th respondent and hence, the 3rd respondent preferred an appeal before the Appellate Authority which also came to be dismissed confirming the order of the Tribunal by order dated 17-9-1988. Being aggrieved by that order, the petitioner preferred this petition.
2. Heard the learned Counsel for the petitioner Sri D.L.N. Rao, the learned Government Advocate for R-1 and R-2, Sri N.S. Venugopal for R-4 and Sri S.A. Nazeer for R-3.
3. The learned Counsel for the petitioner has vehemently argued that both the Tribunal as well as the Appellate Authority committed an error in coming to the conclusion that the property in question is a kazi service inam. On the other hand, he submitted that it is a wakf property attached to the wakf institution of Jamia Masjid and in support of his argument he has drawn my attention to the notification published in the Karnataka Gazette, dated 15-2-1968 wherein the property Survey Nos. 123 and 124 were treated as wakf property by the administrator of the properties. He contended that as the property is a wakf property, the mutawalli or kazi has no independent right to claim the same. On the other hand, he submitted that the mutawalli or kazi of the mosque are only the managers or trustees of the property. Therefore, the wakf property is vested with the Almighty. The kazi or mutawalli is appointed to serve the mosque.
4. In support of his argument, he has drawn my attention to the judgment rendered by the Andhra Pradesh High Court in Arakareddi Mallereddi v Sayed Amanulla Hussain, wherein it is held:
"In order to constitute wakf, it is not necessary to use the word 'wakf and so long as it appears that the intention of the donor is to set apart any specific property or the proceeds thereof for the maintenance or support in perpetuity of a specific object or of a series of objects recognised as pious by Mohammedan Law, it amounts to a valid and binding dedication".
It is also further held:
"The position of Kazi is analogous to the position of shebait, whose position is similar to that of a manager or guardian of minor's estate".
In view of the fact that the property was gazetted to be a wakf property in the Karnataka Gazette and as the said notification was not challenged within one year from the date of publication it is deemed to be a wakf property. But however, both the Tribunal as well as the Appellate Authority treated these two properties as Kazi inam and therefore, it is held that these properties are not wakf properties. It appears that both the authorities have come to the conclusion only in view of the fact that the Form No. 8 extract of these two lands would go to show that these lands are described as Kazi inam devadaya lands. However, the Appellate Authority also has held:
"This aspect of the matter goes to show that the two lands are endowed to the jumma masjid which is an institution of religious worship and thereby attracting the provisions of Section 6-A of the Karnataka Religious and Charitable Inams Abolitions Act, 1955. Besides that, the provisions of Mohammedan Law go to show that the meaning of word is derived from cases which refer to wakf property. So the argument of Sri S.M. Somasekharappa cannot be accepted particularly in view of the suit properties already declared as wakf property".
When it is declared as wakf property it has to be construed only as the property vested with the wakf. If the property is vested with the wakf, the nature of the property has been changed from kazi inam to wakf property in view of the notification issued in the Gazette. In view of that, the decision of the Andhra Pradesh High Court referred to supra would clearly show that the 4th respondent was only working as a mutawalli or kazi attached to this Honnavalli mosque. Therefore, he was only a trustee or a manager and therefore, he is not entitled to claim the property. This is further fortified by the decision of the Supreme Court in Ahmed G.H. Ariff v The Commissioner of Wealth Tax, Calcutta, wherein their Lordships have held:
"The Mutawalli has no right in the property belonging to the wakf. He is not a trustee in the technical sense, his position being merely that of a superintendent or a manager. A Mutawalli has no power, without the permission of the Court, to mortgage, sell or exchange wakf property or any part thereof unless he is expressly empowered by the deed of wakf to do so".
5. However, the learned Counsel for the respondents placed reliance on a decision in Madras State Wakf Board, Madras v Khazi Mohideen Sheriff, wherein it is held:
"Main part of Section 3(1), defining 'wakf, makes it clear that the dedication should be by a Muslim only; clauses (i) to (iii) in the inclusive definition contained in the latter part of the section cannot be dissociated with the main part and it cannot be contended that requirement of grantor being Muslim does not apply to the inclusive part of the definition. Hence, grant for mushrut-al-khidmat, though falling in the purposes mentioned in Section 3(1) cannot be 'wakf, if the donor is not a Muslim. Addition of Section 66-C, by amendment, to cover certain grants by non-Muslims itself shows that unless a grant by non-Muslim comes within the four corners of Section 66-C it is not a 'wakf. Grant for rendering Kazi service is mushrut-al-khidmat but it does not fall within Section 66-C".
It is also held that the person asserting a dedication to be 'wakf must prove it to be made by a Muslim.
6. In Andhra Pradesh Wakf Board, Hyderabad v Bowlat Bibi, the Division Bench while dissenting from the judgment of the Madras High Court has held that the grant in the nature of mushrut-al-khidmat which means burdened by condition of service, does not necessarily mean that such grant should be by a person professing Islam.
7. In Mst. Mundaria and Others v Rai Shyam Sundar Prasad and Others, the Division Bench of the Patna High Court has held with reference to Ma Mi v Kallander Ammal, and a commentary by Ameer Ali at page 200 of Volume I of his book on Mahommedan Law (Fourth Edition) as follows:
"Any person of whatever creed may create a wakf, but the law requires that the object for which the dedication is made should be lawful according to the creed of the dedicator as well as the Islamic doctrines. Divine approbation being the essential element in the constitution of a wakf, if the object for which a dedication is made is sinful, either according to the laws of Islam or to the creed of the dedicator, it would not be valid".
It is further held:
"No authority contrary to what is stated in Ameer Ali's book was pointed out to us; and it seems to be well-settled that a non-Muslim may also create a wakf for any purpose which is religious under the Mahommedan Law. But the object of the wakf must be lawful according to the religious creed of the maker of the wakf as well".
The Division Bench of this Court in Mohamed Isak Saheb and Others v Najaruddin Shamansaheb Mulla and Others, held:
"It is a principle of Muslim Law that an office like that of a Mulla for the rendering of religious services as well as the office of a kazi the functions whereof, though judicial at its inception, later became wholly or almost wholly religious, can never be hereditary in nature. The Muslim Law does not recognise a hereditary priestly class but requires that the office of a kazi or of a Mulla must be held by a person duly qualified by education and training to do so".
It is also further held that the office of Mulla is not hereditary. Mulla's powers of disposal of inam land depend upon terms of grant.
8. The decision rendered by the Supreme Court in Sayyed Ali and Others v Andhra Pradesh Wakf Board, Hyderabad and Others, can be quoted usefully for the purpose of this case, wherein it is held that the dedication of property need not be in favour of Dargah. Grants by way of service inams for purposes recognised by Muslim Law as pious, religious or charitable constitute the property as 'wakf property. Wakf property being permanent dedication, grant of patta under Inams Act does not nullify it.
9. However, in this case there is no dispute that the property was dedicated by a Muslim and it was also referred to as Kazi inam land, in view of the subsequent notification holding that it is a wakf property and the said notification not being questioned by anyone has become final and conclusive treating it as a wakf property. Therefore, the finding of both the Tribunal as well as the Appellate Authority confirming the order holding that the property being devadaya inam land for kazi service the provisions of Karnataka Religious and Charitable Inams Abolition Act are applicable because Section 6-A of the said Act shall entitle a person rendering any religious service in the religious institution for registering him as an occupant, is contrary to the well-settled principles of law as kazi is only a superintendent or manager, he has no power to claim property independently as that of wakf. His position is analogous to the position of a sabhahit which is similar to that of manager or guardian of the minor sisters. Under those circumstances, the findings of both the authorities confirming occupancy rights in favour of the 4th respondent is liable to be set aside.
10. For the foregoing reasons, this petition is allowed and the impugned order passed by the Appellate Authority confirming the order of the Tribunal rejecting the claim of this petitioner is set aside. However, the application filed by the 4th respondent is dismissed holding that it is a wakf property and the petitioner is entitled for occupancy rights.