Kerala High Court
Abdul Sathasr Hajee Moosa Sait vs Smt.Maimuna Bai on 19 February, 2010
Bench: K.M.Joseph, M.L.Joseph Francis
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 779 of 2008()
1. ABDUL SATHASR HAJEE MOOSA SAIT
... Petitioner
Vs
1. SMT.MAIMUNA BAI, 41/1080, ASHM TRUST
... Respondent
2. ABDUL SATHAR MOHAMMED HUSSAIN DO. DO.
3. MUMTHAS BAI, DO. DO.
4. SHAMSHAD BAI, DO. DO.
5. THE KERALA STATE WAKF BOARD, V.I.P.ROAD,
For Petitioner :SRI.P.S.USUPH
For Respondent :SRI.P.CHANDRASEKHAR
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :19/02/2010
O R D E R
K. M. JOSEPH &
M.L. JOSEPH FRANCIS, JJ.
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C.R.P.No. 779 of 2008
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Dated this the 19th February, 2010
O R D E R
K.M. Joseph, J.
This Revision Petition is filed by the plaintiff in W.O.S.No. 23 of 2007 on the file of the Wakf Tribunal, Ernakulam. Respondents 1 to 5 herein are the defendants 1 to 5 in that Suit, which was filed for permanent prohibitory injunction.
2. The facts of the case, according to the petitioner, are briefly as follows:
The plaintiff/revision petitioner Abdul Sathar Haji Moosa Sait Dharmasthapanam is a Wakf within the meaning of the Wakf Act, created by the registered Will executed by late Abdul Sathar Haji Moosa Sait in 1099 M.E. It is registered with the Kerala Wakf Board under Section 25 of the Wakf Act, 29/1954 as early as in 1961 with Register No.3300/RA. The said Wakf is managed by the Managing Trustee with the help of a CRP.NO.779/08 2 committee known as Board of Trustees, constituted as per the provisions of the Will. The said Wakf has got several items of properties. One such item is the buildings bearing door Nos 41/1079 and 1080 situated in the property in Sy.No.393/1 of Ernakulam Village scheduled in the plaint. Building No.41/1080 is a residential building and building No.41/1079 is a shop room.
3. The father of defendants 1 to 4 several years back took the aforesaid buildings on rent. After the death of the father of defendants 1 to 4, the said defendants are continuing as tenants.
4. On 10.4.2007, it was noticed by the plaintiff that the defendants are collecting building materials in the plaint schedule property with the intention of making modification and alteration in the plaint schedule buildings for which the defendants 1 to 4 have no right. So the plaintiff filed the Suit praying for a decree of permanent prohibitory injunction, restraining defendants 1 to 4 from making any addition or alteration to the plaint schedule buildings. The Kerala Wakf CRP.NO.779/08 3 Board was impleaded as additional 5th defendant in the Suit.
5. Defendants 1 to 4 filed written statement mainly contending that the plaintiff, M/s. Abdul Sathar Haji Moosa Sait Dharmasthapanam is not a Wakf because the properties of the said Dharmasthapanam were not dedicated for any religious purpose and further contented that late Abdul Sathar Haji Moosa Sait, who was the predecessor in interest of the defendants, by his Will only created a Trust in respect of B-schedule to that document for the welfare of the members of his family and therefore the properties of Dharmasthapanam are not Wakf properties. On this basis, defendants 1 to 4 contended that as the plaint schedule property is not a Wakf property and as the plaintiff Dharmasthapanam is not a Wakf, the suit is not maintainable for the reason that the Wakf Tribunal has no jurisdiction.
6. In the Wakf Tribunal PW1 and DW1 were examined and Exts.A1 to 6 and C1 were marked. The learned Wakf Tribunal, on considering the evidence, found that the plaintiff CRP.NO.779/08 4 Dharmasthapanam is not a Wakf, but a Trust and hence the Wakf Tribunal has no jurisdiction to entertain the suit and directed to return the plaint under Order 7 Rule 10 and 10A C.P.C. Against that judgment and decree the plaintiff filed this Revision Petition.
7. The Wakf Tribunal entered the following findings:
The testator decided the trustees and the Rules for election of trustees. He made some stipulations regarding taking over the trust and its properties by the Government in case of mis- management and mal-administration of the trust and its properties by the trustees, inter alia. Thereafter, the tribunal finds that the issue whether the property was a wakf, was not considered in the decision of this Court in Mohammed Ebrahim Kassam Sait v. Kerala Wakf Board, Ernakulam (1980 KLT 497) and it will not help the petitioner. It is also found that the mere fact that a portion of 1/4th income from B schedule property was set apart for charitable purpose, will not convert the entire B schedule property as a wakf property. Referring to Ext.A1, CRP.NO.779/08 5 which is the true copy of the Register of Wakfs which was produced to show that the properties were included in the Register of Wakfs, it is found that it is not prepared and published in compliance with Sections 4(5) and 6 of the Wakf Act. It was found that there is no evidence to show that before inclusion of the property in the Register of Wakfs, enquiry as contemplated under Section 40 of the Act was conducted by the Wakf Board and it is found that Sub-section (3) of Section 40 is not applicable to these properties. It was found that the recital contained in Ext.A6 that a portion of the income from the trust property is set apart for some charitable purpose, but the beneficiaries are the members belonging to the testator's family and these provisions contained in the Will did not convert the entire property as a wakf property and setting apart the income from the trust properties will not convert the entire B schedule as wakf and further, some of the income set apart to charitable purpose may be the wakf. It is also found that there is no permanent dedication of B schedule property. CRP.NO.779/08 6
8. We heard the learned counsel for the revision petitioner and the learned counsel for the respondents.
9. The learned counsel for the revision petitioner submitted that the Wakf Tribunal went wrong in finding that the plaintiff Dharmasthapanam is not a Wakf, which is against the provisions of the Wakf Act and against the provisions of Ext.A6 Will. Learned counsel for respondents 1 to 4 supported the judgment of the Wakf Tribunal. Learned counsel for the 5th respondent, Wakf Board, supported the arguments of the learned counsel for the revision petitioner.
10. Learned counsel for the revision petitioner invited our attention to the decision of the learned Single Judge of this Court reported in Mohammed Ebrahim Kassam Sait v. Kerala Wakf Board, Ernakulam (1980 KLT 497), in which the nature of Ext.A6 Will was considered. In that decision, the Will was marked as Ext.P1. As per the Will, the testator had divided his properties into three schedules, viz. A, B and C. A schedule is dedicated as Wakf and a Trust was purportedly CRP.NO.779/08 7 created with respect to B schedule property and C schedule property is gifted to his relatives. The plaint schedule buildings are portions of B schedule property in that Will. With regard to B schedule properties in that Will, in the decision reported in Mohammed Ebrahim Kassam Sait (supra), it is stated thus:
"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 clauses 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 CRP.NO.779/08 8 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. 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 circumstance, 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 in clause 3, which, as already noticed, admittedly, CRP.NO.779/08 9 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."
In that decision it was held:
"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, 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 CRP.NO.779/08 10 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 < th 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 CRP.NO.779/08 11 are recognized by Muslim Law to be pious, religious or charitable, in itself, is one so recognized, for then only can be charity expand its charitable activities."
11. Shri P.S. Usuph, learned counsel for the petitioner would contend that the tribunal has clearly erred in not finding that there was a wakf. According to the petitioner, a wakf can be created for any purpose recognised by Muslim Law as pious, religious or charitable, and the inclusive definition in the Wakf Act would include a wakf-alal-aulad which takes in the three objects, namely pious, religious or charitable. It is pointed out that the relevant clauses in Ext.A6 have not been appreciated in the correct perspective and on the basis of the correct legal position. It is further contended that the petitioner was registered as a wakf in 1961 under Section 25 of the Wakf Act, 1954 vide Ext.A1. It is submitted that the decision of the Wakf Board as to whether any property is wakf property, is final unless it is reversed by a competent civil court as per Section 27 of the said Act. It is contended that the CRP.NO.779/08 12 provision contained in Section 40 of the Act did not enable the tribunal to revoke the decision of the Wakf Board.
12. We will first examine the definition of the word "wakf" as per the Wakf Act, 1995 (hereinafter referred to as the Act). It is contained in Section 3(r) and it reads as follows:
"3(r) "Wakf" means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes-
(i) a Wakf by user but Wakf shall not cease to be a Wakf by reason only of the user having ceased irrespective of the period of such cesser;
(ii) "grants", including mashrut-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and
(iii) a Wakf-al-al-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable."
CRP.NO.779/08 13 The word "Wakf", it would appear, evolves from the Arabic word "Waqafa". This means "to detain" or to "tie up". Prophet Muhammed has stated as follows:
"Tie up the property (corpus) and devote the usufruct to the welfare of human beings and it is not to be sold or made the subject of gift or inheritance, devote its produce to your children, your kindred and the poor and in the way of Allah".
It would appear that there are three essentials for a valid wakf. There must be a permanent dedication of property. The dedication must be irrevocable. It cannot be alienated or transferred. A wakf can be created by a Will. Since the finding of the tribunal is that there is no wakf in respect of B schedule, but there is only a trust, we will notice the distinctions. The following would appear to be the distinctions in a tabular form in Verma On Mohammadan Law:
CRP.NO.779/08 14
TRUST WAKF
1. No particular motive is necessary 1. It is generally made with a pious,
religious or charitable motive.
2. The founder may himself be a 2. The wakif cannot reserve any right to
beneficiary. benefit for himself, except to some extent
under Hanafi law.
3. It may be for any lawful object. 3. The objects must be recognised by
Muslim law as pious, religious and
charitable and in case of family
settlement, the ultimate object must be some benefit to mankind.
4. The property vests in the trustee. 4. The property vests in God.
5. A trustee has got a larger power than a 5. A mutawalli is only a manager or mutawalli. superintendent.
6. It is not necessary that a trust may be 6. A wakf is perpetual, irrevocable and perpetual, irrevocable or inalienable. inalienable.
7. It is valid for any object which is not 7. Apart from these requisites, it must be in contravention to law or morality. for objects recognised as valid by Mohammadan law.
8. It results for the benefit of the founder 8. The `Cypres' doctrine is applied and when it is incapable of execution and the the property may be applied to some other property has not been exhausted. objects.
(Muslim Law by Syed Khalid Rashid).
In the "Outlines of Muhammadan Law" (Fourth Edition) by Asaf A. A. Fyzee, the Author states as follows:
"(B). For whom ? - the Beneficiaries:
The first question which arises is: Is poverty a necessary condition for obtaining benefit from a wakf ? According to Muhammadan law, wakfs may be made (i) for the affluent and the indigent alike; or (ii) for the affluent and thereafter for the indigent; or (iii) for the indigent CRP.NO.779/08 15 alone (g). The law does not insist that a man must necessarily be proved to be poor before he can take the benefit of a wakf. Poverty is one of the many qualities that are recognized as being capable of attracting the benefit of a wakf, but it is by no means a sine qua non. Therefore, all persons, regardless of considerations of wealth, are entitled to come in as beneficiaries. Nevertheless, it is perfectly correct to say that when all other purposes fail, the relief of the poor is the ultimate purpose of every wakf (h).
Thus it is clear that the objects of a wakf may be different from the objects of a charitable trust as understood in English law.
As regards relationship -
(1) the wakf (but only in Hanafi law), or (2) the family and descendants of the wakf, or (3) unrelated persons are all capable of enjoying the benefits of a wakf.
The wakif (or founder) is not entitled to take any benefit after the dedication, except under the Hanafi law."
CRP.NO.779/08 16
13. Now, we have to consider the law as to wakf-alal- aulad or family wakf. Under the Islamic Law, wakfs for the support of a man's descendants and family members were not considered improper. It is apposite that we refer to the following observations by Ameer Ali in this regard:
"From the promulgation of Islam up to the present day, there has been an absolute consensus of opinion regarding the validity of wakfs on one's children, kindred and neighbours. Practical lawyers, experienced judges, high officers of every sect and school under Mussulman sovereigns are all in unison on this point. There are minor differences, viz. whether a wakf can be created for one's self, whether the unfailing object should be designated, whether the property should be partitioned or not, whether consignment is necessary or not; but so far as the validity of a wakf constituting one's family or children the recipients of the benefaction, in whole or in part, is concerned, there is absolutely no difference. A wakf is a permanent benefaction for the good of God's creatures: the wakif may bestow the usufruct, but not the property, upon whomsoever CRP.NO.779/08 17 he chooses and in whatever manner he likes, only it must endure for ever. If he bestows the usufruct in the first instance upon those whose maintenance is obligatory on him, or if he gives it to his descendants so long as they exist to prevent their falling into indigence, it is a pious act, more pious, according to the Prophet, than giving to the general body of the poor. He laid down that one's family and descendants are fitting objects of charity, and that to bestow on them and to provide for their future subsistence is more pious and obtains greater `reward' than to below on the indigent stranger. And this is insisted upon so strongly that when a wakf is made for the indigent or poor generally, the proceeds of the endowment is applied to relieve the wants of the endower's children and descendants and kindred in the first place (see Baillie's Dig., 2nd ed., p.593). When a wakf is created constituting the family or descendants of the wakf (sic, for wakif) the recipients of the charity so long as they exist, the poor are expressly or impliedly brought in not for the purpose of making the wakf charitable (for the support of the family and descendants is a part CRP.NO.779/08 18 and parcel of the charitable purpose for which the dedication is made), but simply to impart permanency to the endowment. When the wakif's descendants fail, it must come to the poor. So, it is an enduring benefaction - an act of `ibadat or worship, to use the language of the Jawahir-ul- Kalam,- an act by which kurbat or 'nearness' is obtained to the Deity."
It was while so that the Privy Council came to consider the question as to whether the wakf in question, which was a family wakf, was valid. Therein, two Muslim brothers made a wakf. They were to be the first Muthawallis. The entire benefit was to go to their children in the first instance and their descendants from generation to generation till the family became extinct. Thereafter, the income was to be applied for the benefit of widows, orphans, beggars and the poor. The Privy Council took the view that the wakf was not valid. In the wake of the said decision, if the gift to charity were illusory or nominal or where the purpose was aggrandizement of a family, the wakfs were CRP.NO.779/08 19 declared void. There were protests including from Sir Ameer Ali in his work "Muhammadan Law". This led to the passing of the Mussulman Wakf Validating Act, 1913. Subsequently, the Mussulman Wakf Validating Act, 1930 was passed, giving retro-active operation to the earlier Validating Act.
14. We will refer to the relevant Clauses in Ext.A6 Will. In Clause 7, it is stated as follows:
" 7. _n. ]+nIbnp ]dbps hIIfpw AXnp Ct8mD DEXpw taemp DomIpsXpamb kIe sZl.w BdmgvN Nab'fpw sI+nS'fpw Fsbbpw Fsb IpSpw_'fpsSbpw c#bv!pw B_oI ]pWy/n\pambn Xmsg \n]bn!ps hyhXID A\pkcn(v Rm3 [@=Xm]\ kz/mbn \n]bn(p Xncs8Sp /pIbpw AXn\p (A_vZpk/m@ lmPnaqkmbpsS [@=Xm]\w) Fsp t]cpsImSp!pIbpw sNbvXncn!psp.
Fsb Imetijw _n. ]+nI hkvXp hnsb ]+bw tap]d* [@=Xm] \w s]cnD hm'nt!oXmIpsp."
CRP.NO.779/08 20
Clauses 8 and 9 read as follows:
" 8. Fsb Imetijw _n ]+nI hIIsf Rm3 Ct8mD \n]bn(n +pEXpw Xmsg t]scgpXpsXpamb amt\Pvsabv {Skvdn Asq&np ]nsoSv Rmt\m {SLnamcmp Xncs*Sp/v A [nImcs8Sp/ps amt\Pvsabnsb {SLnsbm ssIhis8Sp/n BZmbw FSp/ B Ime/v ]+nIhkvXphnp \nIgvt/oXpw ]Wn]q@/nbms!o Xpamb Xe'fpso&np B hI ] WnID \S/n ]q@/nbmt!oXnte!v Nnehv sN?pIbpw ]nsoSv In+ps BZmb/np \nspw B Xes/ ImtemNnXambn sNt?o {]bXv\ 'D!pw kwc#W/n\pw adpw tho Fqm NnehpIfpw sNbvXpw k@!m@ Icw sImSp/pw Cu [@=Xm]\w kw_Tambn sImSpt!onhcps i<fw apXemb hIbv!pw tLj\dn A(Sn XpS'nbhbv!pw adpw tho NnehpIfpw sNbvXv _m!n DE BZmbw Bo hkm\w \membn Awin(p AXnp Hcp `mKw kwJy Fsb amXm]nXm!rmcpsS IpSpw_/nps8+ km[p!D!pw ]pXpapIo'D!pw `#Ww DSp8v apXem bhbv!v sImSp!psXn\pw apl=Zob aX kw_Tamb ]T\'D ]Tn8n!p CRP.NO.779/08 21 sXn\pw CXc `mjm hnZym`ymkw apl=Zobcnp {]Ncn8n!psXn\pw Ad Ipd'D `hn( apl=Zob ] EnID \sm!n ]Wnbn!psXn\pw ] pXp Xmbn ]Wnbn!ps apl=Zob ] EnID!v klmb[\w sImSp!psXn\pw ]EnID ] Wnbn!psXn\pw AXntebv!pw apl =ZobcpsS ivaim\/n\pw `qanID hm'psXnte!pw [@=!nWdpID Dom !pshIbv!pw apIow A\mYa?m AS!w sN?psXn\pw sIm(n Xncp hnXmwIq@ Cu Xe'fnp hkn!ps I(osaa3amcnp km [p!fmbh@!pw hn[hID!pw `#Ww DSp8p apXembh sImSp!psXn\pw dwkm3 amk/np km[p!D!v ]e{]Imc/np [@=w sImSp!psXn\pambn ASp/ sImq/np Nnehv sNt?oXmIpsp.
Fsmp tap8 d* Fqm C\'D!pw AhXm \pkcWw hoXn(v sNehpsN?pIsbm AXmXp Ime/pE XnXnbpw Bh iyhpw KpWhpw t\m!n GXm\pw C\ 'D!mbns+m GsX&nepw Hcn\/n\v am{Xambns+m Nnehv sN?psXn\v k= XapEXpw Bb {SLnamtcmSpwIqSn Btem Nn(v `qcn]#m`n{]mb{]Imcw Xocp am\n(v enLv X?mdm!n Bhn[w Nnehv CRP.NO.779/08 22 sNbvXpsImtEoXpw BIpsp. GXv \nebnepw Cu \menp Hcwiw kwJy Bov tXmdpw _m!n hcp/msX tasegpXnbhn[w NnehvsNbvXp sImtE oXmIpsp.
9. _m!n aqsv Awi/np cov Awiw Fsb aI3 acn( A_vZppIcoansb aI3 aqkmbpsSbpw Ahsb ktlm ZcnamcpsSbpw Fsb s] ,a!fpsSbpw ChcpsS Fqmw ]p{X]u {XrmcmZnbmb Fsb ]n3Km anIfnps8+hcnp Bsc &nepw \n@1\w slXphmbn IjvSs8Spshcp ombncp smp AhcpsSbpw AhcpsS kwc#W/np Ccn!ps hcpsSbpw `#Ww DSp8v apXemb hIbv!v Ah@ Hmtcmcp/cpsSbpw XnXnbpw \S8pw A 4Jpw A\pkcn(v thonhcps Nnehntebv!pw Ah@!v hnZym`ymk'D \ptIoXn\pE Nnehn tebv!pw D] tbmKs8Sp/psXn\mbn AhkvXm\p kcWw hoXn(psImSpt! oXpw BIpsp. Fsmp Ahcnp GsX&nepw Hcp imJbnps8+h@!v 5000 I. A?mbncw Ddp8nIbnp Ihn bm/ Hcp kwJy HsmbnsIm Sp!psXmbmp AXpsImov B IpSpw_w t#aambn Imet#]w sNbvXpsImEpsasv CRP.NO.779/08 23 {SLnam@!p t_m[yw A'ns\ sImSpt!oXpw A{]Imcw sImSp!psXp Hcp sImq/np Hsnp A [nIw imJ!p sImSp!phm3 ]mSn qm/Xpw BIpsp."
Clause 10 deals with the implementation of the conditions in the previous Clauses and it, inter alia, provides that a decision is to be taken by the majority of the trustees. It is also provided that no descendant has a right to question the said decision. Clause 11 provides that the benefit under Clause 9 is to be given to the adherents of Muhammadan faith and it is not to be given to the opponents of religion. We extract clauses 12 and 13 being relevant, as under:
" 12. 9~mw hIp8np ]d*{] Imcw Nnehn\v sImSp!psXnp Fsb ]u{X3 aqkm Ahsb ]pcpj k 4m\'sf ]n3XpS@spomIps ]pcpj k4m\'D ChcpsS hnjb/np {SLnamcpsS {i2 {]tXyIw ] Xn*ncnt!oXpw Ah@!v sImSp!ps kwJy Ah@ Hmtcmcp/cpsSbpw XnXnbpw IpSpw_mhXbpw Bhiyhpw t\m!n `#Ww DSp8v apXemb CRP.NO.779/08 24 NnehpID ]cm{ibw IqSmsXbpw bmsXmcp _p2nap+n\pw CShcmsXbpw \S/X!hn[hpw AhcpsS hnZym`ymkw IeymWmSnb4ncw apXemb Bhiy'sf \nhr/n!psXn\v aXnbmIpsnSt/mfw DE kwJybpw icnbmbpw X! kab'fnepw sImSp/v sImtEoXpw BIpsp. Fsb ]u{XrmcmZn Bbn Fss ]n3 XpScpshcmcpw Hcp Ime/v CqmsX hsmp AspapXp tap]d* cop] Icnbpw 8~mw hIp8np hnhcn( [@=hnjb'D!mbn Ccn!psXpw AXp Xmsg 32~mw hIp8np]dbpw {] Imcw hn\ntbmKnt!oXpw BIpsp.
13. k@Fi`\mb ]S( X<pcmsb klmb/mp Fsb ]u {X\mb aqkmbpw Ahsb ktlmZcnIfpw Fsb s],a!fpw Ct8mD kz/psImov \q XnXnbnp Ccn!psXpw taepw Ah@!pw AhcpsS ]n3KmanID!pw bmsXmcp _p2nap+n\pw IjvS8mSn\pw CShcp/cpsXsv Rm3 ]S( X<pcm t\mSv At]#n!psXpw A{]Imcw Ah@ Fqmhcpw Ahch@!pE kz/p !D sImopw kzbm@VnXwsImopw am\ambn Imet#]w sNbvXpw sImoncn!psXmbmp Ah@!mbn 9~mw CRP.NO.779/08 25 hIp8np ]d*hn[w bmsXmcp kwJy bpw sImSp!psXnsp BhiyanqmsX hcpsXpw A'ns\bpEt8mD B cov Hmlcnbpw Asq&np 9~mw hIp8np ] d*{]Imcw sImSpt!oXmbnhcp t<mD sImSp!psXnsv {SLn am@ enLv X?mdm!nbX\pkcn(v sImSp!psXv \o!n B cov Hmlcnbnp Fs4&nepw _m!n hcpsXmbmp B _m!n hcps kwJybpw 4~p tijn( Hcp kwJytbmSpIq+n tN@/ B Fqm kwJyID!pw Asq&np 4~p Hcwiw kwJy!v AXmXpsImqw Xss BZmbw In+ps `qkz/p!sfm Iqen ]ncnbps sI+nS'sfm Cu [@=Xm]\w t]cnp (A_vZpk/m@ lmPn aqkmbpsS [@= Xm]\w) Fs \mat[b/np Xodp hm'nt!oXpw BIpsp. CshkvXp hm'n!Wsaspw AXn\v sImSpt! ohnebpw KpWtZmj'fpw {SLnam@ tbmKw IqSn BtemNn(v `qcn]#m`n{] mb{]Imcw Xo@(s8Sp/n AX\pkcn(v hm'nt!oXpw Fsmp A'ns\ hm'n!ps hkvXp!D A\ycnp DSaXmhImiw \np!psXp (AXmb Xp PrnamcpsS hIsbm tZhkzw hIsbm ]menbw hIsbm) Aqm /Xmbncn!Ww."
Clause 14 provides that the properties acquired and the income CRP.NO.779/08 26 from the properties added as per the previous provision will be added to the income from the B schedule property and it is to be divided into four as per Clause 8 and spent. It also speaks about accretion by acquisition. Clause 15 forbids alienation and encumbering. Various other Clauses mainly deal with the aspects of administering of the properties by trustees.
15. We will now consider the case law on the point. In Nawab Zain Yar Jung (since deceased) and Others v. Director of Endowments and another (AIR 1963 SC 985), the Apex Court had to consider whether a wakf had been created. The question to be decided was whether the institution in question was a wakf or a public charitable trust as contemplated by the English Law. The Court, inter alia, held as follows:
"13. Having noticed this broad distinction between the wakf and the secular trust of a public and religious character, it is necessary to add that under Muslim law, there is no prohibition against the creation of a trust of the latter kind. Usually, followers of Islam would naturally prefer to dedicate their property to the Al-mighty and create CRP.NO.779/08 27 a wakf in the conventional Mahommedan sense. But, that is not to say that the follower of Islam is precluded from creating a public, religious or charitable trust which does not conform to the conventional notion of a wakf and which purports to create a public religious charity in a non- religious secular sense. This position is not in dispute."
In the said case, the Court took the view, after considering various clauses in the document, that it amounted to a trust. One of the main considerations which weighed with the Court was the fact that one of the Clauses provided for maintenance, upkeep and support of public religious institutions and otherwise for the advancement of religion, particularly in the State of Hyderabad and it was further provided that the benefit of the Clause shall not be restricted to any particular religion. The Court also took note of the fact that under the document, the author of the trust was the settler and the appellants were shown as trustees. The legal title in respect of the subject matter was found to vest in the trustees. The Court found that the CRP.NO.779/08 28 vesting provision has not been used as a means to carry out the intention to dedicate to the Al-mighty and it constituted the essential basis of the transaction which was to transfer the legal title of the trust property to the trustees. There was provision also for appointment of non-Muslims as Trustees. It was on a conspectus of all these features that the Apex Court proceeded to hold that the property was not a wakf. In Fazlul Rabbi Pradhan & Another v. State of West Bengal and Others (AIR 1965 SC 1722) on which considerable reliance is placed by Shri P. Chandrasekhar, it is necessary to advert to the facts. The Court was concerned with proceedings under the West Bengal Estates Acquisition Act, 1953. The Act abolished all intermediaries and vested the estates and the rights of the intermediaries in the State free from all encumbrances. There were, however, some exceptions. One such exception was contained in Section 6(i) of the Act. It read as follows:
"(i) Where the intermediary is a corporation or an institution established exclusively for a religious or a charitable purpose or both, or is a CRP.NO.779/08 29 person holding under a trust or an endowment or other legal obligation exclusively for a purpose which is charitable or religious or both land held in khas by such corporation or institution, or person, for such purposes"
It is also necessary to refer to the definition of the words "charitable purpose" and "religious purpose". They read as follows:
"Section 2(c) defines "charitable purpose"
and S.2(n) "religious purpose". These definitions are:
"2(c): "charitable purpose" includes the relief of poor, medical relief or the advancement of education or of any other object of general public utility;"
"2(n): "religious purpose" means a purpose connected with religious worship, teaching or service or any performance of religious rites."
Notices were issued under the Act to the Mutawallis of two Muslim Wakfs in which either the ultimate benefit to charity CRP.NO.779/08 30 was postponed till after the extinction of the wakif's family and descendants or the income from the estate was applied for maintenance of the family side by side with expenditure for charitable or religious purpose. Justice M. Hidayatullah (as His Lordship then was), speaking on behalf of the Bench, found on an appreciation of the various Clauses, that the case would not be covered by the expression "religious purpose", as the definition was an exhaustive one, and the Court proceeded to consider the question as to whether it would come within the expression "charitable purpose" and could thus claim exemption. A contention was raised by the Mutawallis that in construing charitable purpose, the Court should be guided by the notions of Mohammadan Law and it was contended that if the Muslim Law regards gift for the benefit of the wakifs and family as charity, it was not for the Court to say that they are not. Thereafter, the Court proceeded to consider the legal history relating to wakfs in which the benefits to charity or religion were postponed indefinitely or were illusory and culminating the CRP.NO.779/08 31 passing of the Validating act of 1913. The Court proceeded to thereafter hold as follows:
"13. After the passage of these two Acts, wakfs, in which the object was the aggrandisement of families 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 Mahomedan Law.
14. We do not say that the English Authorities should be taken as the guide as was suggested in some of these cases at one time. For one thing, the law was developed in the Chancery Courts without the assistance of any statutory definition. The earliest statute on the subject is one of 1601 in the forty-third year of the reign of CRP.NO.779/08 32 Queen Elizabeth I and in its preamble it gave a list of charitable objects which came within the purview of that Act, and for another Courts in England extended these instances to others by analogy and the subject is often rendered vague and difficult to comprehend. A clear guide is available to us in India in the interpretation of the almost similar provisions of the Indian Income-tax Act, 1922 already quoted. The observations of Sir George Rankin in the Tribune case, 66 Ind. App.241: (AIR 1939 PC 208), on which much reliance is placed by the appellants were intended to convey the same caution about English cases which we have sounded here. The Judicial Committee did not intend to lay down that the words of a statute so precise in its definition should be rendered nugatory by leaving room for inclusion in "charitable purposes", objects which by no means could be charity in the generally accepted legal sense. No doubt the definition which is common is not exhaustive and leaves scope for addition, but it does not make for enlargement in directions which cannot be described as "charitable".
CRP.NO.779/08 33
However, it is most relevant also to refer to paragraph 16 which reads as follows:
"16. When the two deeds are examined and their provisions considered in the light of these principles, it is easily seen that they are not exclusively for charitable purposes. They do provide in part for objects which are religious or charitable or both but mingled with those purposes are some which are secular and some which are family endowments very substantial in character. 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 wakif's family, other considerations might conceivably have arisen, as was stated by Bachawat J. in his opinion. The deeds as they stand cannot, however, be said to come within the exemption claimed."
16. It is relevant to note that the Clauses in the Wakfs involved in those cases provided for application of the income for the support of the wakifs and their families. Mutawalliship and the Naib Mutawalliship were to run in the family from CRP.NO.779/08 34 generation to generation. Provision was made for the maintenance of the descendants. It was also noted that the families had not become extinct and they were enjoying the benefits and as already noted, the Court was considering the scope of the provision exempting certain institutions provided they fulfilled the requirements which we have set out above.
17. In Radhakanta Deb and Another v. The Commissioner of Hindu Religious Endowments, Orissa (AIR 1981 SC 798), the Court was essentially considering the question as to whether the temple in question was a public temple and a trust and the endowment was of a public nature and was consequently to be governed by the provisions of the Orissa Religious Endowment Act, 1939 and the Suit was instituted to set aside the order that the temple was a public temple and, therefore, the question which arose was the distinction between a public trust and a private trust It is in passing, the Court proceeded to hold as follows:
"Similarly, even the Mahomedan law recognies the existence of a private trust which is also of a CRP.NO.779/08 35 charitable nature and which is generally called Wakf- allal-Aulad, where the ultimate benefit is reserved to God, but the property vests in the beneficiaries and the income from the property is used for the maintenance and support of the family of the founder and his descendants. In case the family becomes extinct, then the Waqf becomes a public waqf, the property vesting in God. A public Waqf under the Mahomedan law is called Waqf-fi-sabi-lil-lah".
In Trustees of Sahebzadi Oalia Kulsum Trust v. Controller of Estate Duty, A.P. ((1998) 6 SCC 267), the brief facts were as follows:
The Nizam of Hyderabad executed a Deed of Trust in favour of his granddaughter for life and thereafter for her children and their children for life, etc. and finally, for maintaining a holy shrine. He also executed a Trust Deed in favour of his daughter-in-law. The terms of the Trust Deeds were found to be similar. Under the first Trust Deed, the grand- daughter was allowed to wear the jewellery, after her marriage CRP.NO.779/08 36 and on completing thirty years of age whichever was earlier, and during her life time. Upon her death, the trustees were directed to sell the ornaments and invest the sale proceeds and pay the income to her children or remoter issues of a Prince from generation to generation in a particular ratio, and finally, on the death of the last survivor, the income was directed to be utilised for maintenance of the shrine. The Court found that the trust was in the nature of a Wakf-Alal-Aulad. In fact, the document itself specifically spoke of the making of the settlement and the Wakf- Alal-Aulad. Upon the death of the Nizam, the officials of the estate duty proceeded on the basis that these properties which were the subject matter of the two trusts were to be treated as properties passing on the death of the deceased for the purpose of estate duty. The Court, after referring to Abul Fata Mahomed Ishak v. Roussomoy Dhur Chowdry (ILR 22 Cal. 619 (PC)) and referring to the passage from Ameer Ali which we have already extracted also, held as follows:
"9. Criticising the decision of the Calcutta High Court in the case of Rasamaya Dhur CRP.NO.779/08 37 Chowdhuri v. Abul Fata Mahomed Ishak which was subsequently upheld by the Privy Council in Abdul Fata Mahomed Ishak v. Roussomoy Dhur Chowdry, Ameer Ali explains the position in Mohammedan law by saying that the provision for one's children and descendants is regarded as a pious duty by which nearness (kurbat) to God is attained. The mention of the poor is required by Mohammad (not by Abu Yusuf with whom is the Fatwa) not to give validity to the wakf, but to ensure perpetuity; and as human beings are liable to become extinct and as a wakf must be a permanent dedication, Mohammad required that the poor should be expressly named or implied by the use of the word "sadakah". Abu Yusuf, on the other hand, held that whether the poor were named or not, or whether the word "sadakah"
was used or not, the word "wakf" implied perpetuity, and, therefore, unless some other object was named, on failure of the wakif's posterity, the income would be applied for the poor. There is no question about the validity of the wakf; the mention of the poor does not make the wakf per se more or less valid; it only ensures perpetuity insisted upon in the law."
CRP.NO.779/08 38 In Mohd. Khasim v. Mohd. Dastagir And Others ((2006) 13 SCC 497), the following were the brief facts:
A Muslim gentle man had three wives, four sons and five daughters. One of his sons executed the unregistered lease deed in favour of his father, acknowledging the title of his father and also accepting receipt of a sum upon which he voluntarily relinquished his rights. Thereafter, the father executed a document styled as a Deed of Trust. It provided that the father was to act as the trustee in management along with his second wife and in the event of death, the survivor was to continue as trustee. It is also, inter alia, provided that certain charitable works having religious connotations should be performed. Provision was also made to arrange for the good marriages of the daughters of the family. The father alone had the liberty to alienate the trust property and to purchase fresh properties for the benefit of the trust. Further acquisitions were to be included with the trust property. A Suit for partition was filed by one of his sons. It was resisted by another son pleading that the trust CRP.NO.779/08 39 deed was in effect a wakf-alal-aulad and, therefore, the subject matter of the said document of the trust deed could not be partitioned. The Court held, inter alia, as follows:
"30. As urged both by Dr. Siddiqui and Mr. Mushtaq Ahmad, in order to constitute a wakf, there must be a permanent dedication of the properties in question in favour of God Almighty and while the objects of the wakf may initially be for the benefit of the wakif's family and other descendants, the ultimate beneficiary has to be God. Neither of the two above conditions are fulfilled by the document dated 29-2-1960. The other important test is the nature of inalienability of the properties forming the nucleus of the wakf. Once a wakf is created, the title of the wakif in the dedicated property is extinguished and vests in God. The wakif is entitled to reserve power to alienate any portion of the wakf properties, but for the benefit of the wakf. In the instant case, the executant had reserved to himself the power to alienate the trust properties, but one of the conditions stipulated in the deed was that his two minor daughters were to be given immovable CRP.NO.779/08 40 properties worth Rs.8000/=. A further direction was given by the executant that after his death, his daughters, Mymoona Bi and Fathima Bi, were each to be given a share of the immovable properties of the value of Rs.8000/= on condition that they would not be entitled to the said immovable properties, if they had no male issues. A specific direction was given that the properties given to Fathima Bi or Asha (sic Maimoona) Bi would also revert to the trust, if they had no male issues.
31. The aforesaid directions run contrary to the concept of wakf and the more appropriate view appears to be that the executant intended to create a simple English trust. Although, in order to create a valid wakf, it is not necessary to use the term "wakf" in the document in question, except for providing for the performance of certain religious ceremonies, pious and charitable duties, there is no mention that the dedicator had ever intended that the properties forming the subject- matter of the trust should constitute a wakf. The executant appears to have deliberately used the expression "trustee" and not "Mutwalli" which CRP.NO.779/08 41 would have ended the controversy that has now arisen.
32. The law is quite clear that there is no bar to a Mohammedan creating a simple English trust. It is not always necessary that in order to make a settlement of his properties, a Mohammedan has always to create a wakf. In fact, the said view has been expressed in a Division Bench decision of the Madras High Court in Kassimiah Charities Rajagiri v. Secy., Madras State Wakf Board."
It was found ultimately by the Court that the properties in question vested in the trustees and were not partible.
18. In Tamil Nadu Wakf Board v. Larabsha Darga, Panruti ((2007) 13 SCC 416), we notice the following brief facts:
The plaintiffs in the Suit out of which the Appeal arose contended that the Suit property belonged to a private wakf, ie. wakf-alal-aulad and not a public wakf. Proceedings were initiated under the Wakf Act, 1954. One of the questions, of course, was whether the decision in the earlier proceedings was res judicata. The Court after referring to the proforma maintained by the Wakf Board, found that the details revealed CRP.NO.779/08 42 that succession to Mutawalliship was hereditary and the income had to be spent for pious, religious and charitable purposes and a portion was also used for management of the family. The Court, inter alia, held as follows:
"10. As rightly observed by the High Court, inasmuch as a portion of the income is to be spent for the family apart from pious, religious and charitable purposes, it satisfies the character of a private wakf i.e. wakf-alal-aulad. The said document i.e. Ext.A-22 also supports the claim of the plaintiffs that they are the hereditary Mutawallis of the private wakf. These aspects have been fully considered and rightly concluded by the trial Judge as well as the High Court. on the other hand, as rightly pointed out by learned Senior Counsel for the respondent-plaintiffs, the lower appellate court on misconstruing the decision in SA No.1104 of 1983 wrongly allowed the appeal."
In Punjab Wakf Board, Ambala and Another v. Gram Sabha, Basoli And another (AIR 1986 Himachal Pradesh 23), the Division Bench considered the question as to whether the land CRP.NO.779/08 43 which was known as Pirsthan was a wakf or not. Taking note of various circumstances including the fact that the place in dispute was all along being used as a place of worship both by the Hindus and also by Muslims and there was also a bell not found in Mosques, it was found that it could not be treated as a wakf. The Court also found, with reference to Section 6 of the Wakf Act, 1954, that even if a list of wakfs had been published under Section 5(2), a Suit could be filed questioning the same. In Cheedella Kotaiah v. Wakf Board, Andhra Pradesh, Hyderabad and Others (AIR 1978 Andhra Pradesh 34), a Division Bench took the view that the right to file a Suit under Section 6 of the Wakf Act, 1954 is confined to the Wakf Board, Mutawalli or to persons interested in the wakf and the finality of the list of wakfs published would be only against such persons who could file a Suit under Section 6. In Begum Asma Jafar Imam And Another v. The State of Bihar and Others (AIR 1975 Patna 48), a Division Bench had to consider a question which bear some similarity with the facts involved in this case. That is to say, the CRP.NO.779/08 44 question was whether the wakfs in question were wakfs coming under the 1954 Act ? It is necessary to refer to the facts, in brief:
There were two wakfs which were registered under the Bihar Wakf Act, 1947. Subsequently, the Wakf Act 1954 came to be enacted. It was extended to the Bihar State in the year 1971. The Act provided for the repeal of any law corresponding to the Central Act. Consequently, the Bihar State Wakf Act stood repelled with effect from 7th April, 1973. The Wakf Board was established in 1973. It issued notice to the petitioners as to why relief should not be granted on the basis of a petition filed by a person under the Central Wakf Act. The petitioner took up the contention that the wakfs in question were mere wakf-alal- aulad. The Division Bench traced the history of the law of wakf commencing from the 1913 Act. It noticed that the Mussulman Wakf Act of 1923 was passed, it did not include what was wakf- alal-aulad within the definition of "wakf". (Still later, when the Central Wakf Act of 1954 was passed, the definition of "wakf" CRP.NO.779/08 45 and the provision relating to wakf-alal-aulad in the Wakf Act, 1954 and the Wakf Act, 1995 are para materia).
19. Thereafter, the Division Bench proceeded to consider the effect of the words "to the extent to which property is dedicated for any purpose recognised by Muslim Law as pious, religious or charitable". The Court noted that in the wakfs in question, no specific property was dedicated to any purpose recognised by the Muslim Law as pious, religious or charitable. Only the poor of Neora were to be the ultimate beneficiaries after the line of the settlor became extinct. The Court took the view that the Act is applicable only to properties which have been dedicated for any of the purposes considered as pious, religious or charitable under Muslim Law. It held, inter alia, as follows:
"If it is held that all wakfs-alal-aulad and every part of them are included in the definition of "wakf", then the words "to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable", will become surplusage and redundant."
CRP.NO.779/08 46
The Court also repelled the contention that the words "to the extent" referred to the corpus and the Wakf Board would have jurisdiction only over the corpus of such a wakf-alal-aulad and whereas, in the case of a public wakf, it would have jurisdiction both over the corpus as well as the usufruct. Thereafter, the Court proceeded to consider the argument that making a provision for the maintenance and support wholly or partially of the family, children or descendants of the settlor itself is a pious, religious or charitable purpose. After referring to Abul Fata Mohomed Ishak's case (supra) and Fazlur Rabbi Pradhan v. State of W.B. (AIR 1965 SC 1722), the Court held that the Privy Council decision, holding that a wakf-alal-aulad is not relating to any religious or charitable purpose was approved. Thereafter, the Court proceeded to consider as to whether making provision for the maintenance of the family and members and descendants of the wakifs was a pious act. In this context, the Court referred to the decisions in Mohiuddin Ahmed v. Safia Khatun (AIR 1940 Calcutta 501) and Fazlur Rabbi Pradhan v. State of West CRP.NO.779/08 47 Bengal (AIR 1965 SC 1722) (supra) that making provision for descendants can neither be a pious, nor a religious or charitable purpose so as to cover it within the definition of "wakf". The Court, in this context, reasoned as follows:
"If making provision itself for the descendants was either pious, religious or charitable, there was no necessity of qualifying the definition of "wakf- alal-aulad" with those words, because in every wakf-alal-aulad, the primary object is making provision for the descendants of the settlor. If the words to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable" have to be given some meaning, it has to be held that they do not relate to the mere act of making provision for the children and descendants in a wakf-alal-aulad. I am of the opinion that only such wakfs-alal-aulad in which simultaneously with the making provision for family members and descendants some property is dedicated for any purpose which is recognised as pious, religious or charitable by Muslim law, will be covered by the definition of "wakf". To that extent, the Board will have jurisdiction." CRP.NO.779/08 48
It is also necessary to refer to the Clause, which reads as follows:
"24. In the instant case, as will appear from a bare reference to the deed of wakf in question, there is no immediate dedication for any purpose which can be termed as pious, religious or charitable. Mr. Hassan Imam made provision for the maintenance of his wife, Mrs. Nattie Imam, for his son and daughters and their descendants who were to enjoy the usufruct of the properties which were covered by the said deed. In clause 16 of the deed, it has been mentioned that, in the event of the line of Mr. Hasan Imam becoming extinct, male or female, the ultimate benefit of the wakf is to go to the poor Muslims residing at Neora for their education only and for the maintenance of the mosque. In clause 18, it has been mentioned that it will be competent to such Mutawalli for the time being to allot out of the one twentieth of the gross income to public charity generally. This clause is only an enabling one and it does not dedicate any part of the property covered by the wakf for public charity, but leaves it to the discretion of each Mutawalli. Clause 19 of the deed reads as follows: CRP.NO.779/08 49
"It is my desire that a mosque should be built at village Deori pargans Japla, District Palamau out of the Wakf Estate and the said mosque shall remain in charge of the Mutawalli for the time being and the repair and maintenance of the said mosque shall be according to the discretion of the Mutawalli for the time being."
Both parties have agreed that there was no dedication under this clause. It was put in the form of a desire which was left to the option of the Mutawalli. Therefore, from a reading of the aforesaid deed of wakf, it has to be held that there was no concurrent gift of any part of the property covered by the deed in question for any of the objects mentioned in the 1954 Act; only in certain contingency the benefit of the wakf was to go to the poor Muslims of Neora."
Thereafter, the Court proceeded to hold that it was a typical wakf-alal-aulad as is contemplated under the 1913 Act where the actual beneficiaries are the descendants of the settlor and only after the line of the settlor becoming extinct, the ultimate benefit was reserved for a purpose which was covered by the CRP.NO.779/08 50 proviso to Section 3 of the 1913 Act. Further, the Court also was of the following view in regard to the mixed types of wakfs:
"26. On the question whether the mixed types of wakfs were covered by the 1913 Act and as such excluded by the 1923 Act, there was a controversy between the different High Courts in India. The decisions in Ali Ekhtear v. Khandkar Altaf Hossain, AIR 1933 Cal. 581; Shabbir Hosein v. Ashiq Hossein, AIR 1929 Oudh 225 (FB) and Tyebhoy Essofalli Thingna v. Collector of Ahmedabad, AIR 1944 Bombay 91 on the one hand, were of the view that such mixed types of wakfs were not wakfs conceived by the 1913 Act and as such they were within the purview of the 1923 Act, whereas in Ruqia Begum v. Surajmal, AIR 1936 All 404 and Syed Ahmad v. Julaiha Bivi, AIR 1947 Mad. 176 the view taken was that even such wakfs were wakfs as contemplated by the 1913 Act. In view of the definition given in the 1954 Act, now mixed wakfs making concurrent provisions for public and descendants of the settlor will be covered by the said 1954 Act. The CRP.NO.779/08 51 effect is that wakfs-alal-aulad which are strictly in terms of the 1913 Act shall be excluded from the scope of the 1954 Act. As I have already held that the wakf in question is a wakf-alal-aulad strictly in terms of the 1913 Act, where it is not possible to find out the extent to which the properties have been dedicated for purposes which are pious, religious or charitable, I am left with no option, but to hold that the provisions of the 1954 Act are not applicable to the said wakf-alal-aulad and as such the respondent Board has no jurisdiction to interfere with the administration and management of the Imam Wakf Estate."
20. The questions which arise for our consideration and decision appear to be as follows:
1) Whether the testator has created a wakf in respect of B schedule properties to Ext.A6 or a trust ?
2) If a wakf has been created in respect of the B schedule property, will it be a wakf within the meaning of the main definition clause defining the word "wakf" ? In other words, would it be a wakf being one created for a purpose considered as pious, religious or charitable as per Muhammadan Law ? CRP.NO.779/08 52
3) Whether it is a wakf-alal-aulad and if it is one, what is the effect of the words in the definition clause to the effect that it is wakf "to the extent to which the property is dedicated for any purpose recognised by Muslim Law as pious, religious or charitable" ?
4) What is the effect of the registration of the property and the provisions of Section 40 of the Act ? Whether the descendants can raise the contention about there being no wakf under the Act in the Suit instituted by the plaintiff ?
21. There are several tests. One of the tests is that in the case of a trust, the founder may himself be a beneficiary, while in the case of a wakf, except to some extent under Hanafi Law, the wakif cannot reserve any right to benefit for himself. Going by the terms of the Will, we do not see any clause under which we could hold that the testator has reserved any benefit for himself.
22. The further question arises is as to whether it could be said that the property vests in the trustee, or it vests in God ? Undoubtedly, a wakf can be created under a Will. What is CRP.NO.779/08 53 required is that there must be a permanent dedication. It is not necessary that a wakf must be expressed in specific terms. Undoubtedly, it is true that the testator has used the word "wakf" in respect of A schedule property and when it came to B schedule property, the testator has not expressly used the word "wakf". But, the mere fact that the words "trust" and "trustees" are used, in our view, is inconclusive of the issue and it is a matter to be decided on the basis of various factors. In the case of a trust, the property would vest in the trustee. In the case of a wakf, the property vests in the Almighty and the persons who are to administer, be they called Mutawalli or trustee, their right is essentially to administer the wakf in accordance with the terms of the wakf deed and subject to any law holding the field. Going by the terms of Ext.A6 Will, we are of the view that it cannot be said that the property in question would vest in the trustee. In this context, it is necessary to consider yet another test and that is the test of inalienability of the property which is an essential attribute of a wakf property. Clause 15 clearly CRP.NO.779/08 54 provides that the properties are inalienable. Thus, on a perusal of the terms of Ext.A6 Will, we are of the view that the properties are both inalienable and though the words used are that of trustee, there is no vesting of the property in them as trustees. They are constituted essentially for the purpose of administering the properties in terms of the directions contained in Ext.A6 Will. Thus, it can be held that the properties do not vest in the trustees and also that the properties are inalienable, both of which features are only reconcilable with the concept of a wakf.
23. Further, we notice that the terms of the Will do not indicate that it is conditional in point of time. Thus, the aspect of perpetuity is also to be found in favour of the petitioner. We do not see any provision under which it could be contended that the institution which is created under the Will in respect of B schedule is revocable. Thus, it could be said that what was created in respect of B schedule is perpetual, irrevocable and inalienable.
CRP.NO.779/08 55
24. Under the Muhammedan Law, there can be a public wakf and a private wakf. A private wakf can also be called a family wakf. The family wakf is known as wakf - alal - aulad. It is essentially a wakf under which provision is made for one's children and descendants. Provision is made under such an institution for the benefit of the descendants with the rider, however, that the ultimate benefit should go for purposes which are treated as religious or charitable in Mohammedan Law, upon the extinction of the wakif's line of succession. In the context of the Wakf Act, 1954 as also the Wakf Act, 1995, however, the Legislature has deemed it fit to define the word "wakf" in the main part as a permanent dedication for any purpose recongnized by the Muhammedan Law as religious, pious or charitable. Providing for one's own children and descendants, it is indeed treated as pious under the Muhammendan Law (See Trustees of Sahebzadi Oalia Kulsum Trust v. Controller of Estate Duty, A.P. (AIR 1998 (6) SCC 267). The Wakf in question can be treated as a mixed wakf. That is to say, Ext.A6 CRP.NO.779/08 56 reveals that the testator has directed appropriation of the income from B schedule properties into four. One part of the same is, undoubtedly, to be dedicated for purposes which can be treated as charitable or religious (Clause 8). Two parts are to be used under Clause 9. The remaining one part goes for acquiring assets.
25. But, the dichotomy arises for the following reasons:
After defining Wakf as aforesaid, the Legislature has specifically included a wakf -alal-aulad also within the ambit of the definition of the word "wakf". But, it is limited by the employment of the words "to the extent that it is dedicated for purposes which are treated as pious, charitable or religious". The intention of the Legislature would appear to be this: It was aware of the position at law that under the Mohammedan Law, a wakf-alal-aulad being a wakf created for the benefit of the children and the descendants of the wakif. It is contended by the learned counsel for the respondents 1 to 4 that there is no permanent dedication of any property for a purpose considered CRP.NO.779/08 57 as pious, religious or charitable. He would submit that all that is directed under Ext.A6 is that the income from the property is to be utilised in the manner provided in the Will. The Mohammedan Law does not insist on or by words or form to constitute a valid dedication so as to create a valid wakf.
26. It is contended that the petitioner was registered as a wakf in the year 1961 under the Wakf Act, 1954. It is contended that under Section 27 of the Wakf Act, 1954, the decision of the Board of any question under sub-section (1) shall, unless revoked or modified by a civil court of competent jurisdiction be final. Sub-section (1) of Section 27 of the Wakf Act, 1954 reads as follows:
"27. Decision if a property is wakf property.-(1) The Board may itself collect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf property or not or whether a wakf is a Sunni wakf or a Shia wakf, it may, after making such inquiry as it may deem fit, decide the question."
CRP.NO.779/08 58 This corresponds to Section 40 of the Wakf Act, 1995. It is further contended that in so far as the petitioner wakf was registered in 1961 as is evident from Exts.A1 and A2 and there is power only under Section 40 to revoke the decision of the Wakf Board, it does not enable the tribunal to revoke the decision taken in 1961.
27. We are of the view that there is no merit in this contention. Section 27 appears to empower the Board to act on its own to collect information of any property, if it has reason to believe to be a wakf property and if any question arises as to whether the property is wakf or not, to conduct such enquiry and decide the question. It is such a decision which must be a decision made under sub-section (1), namely after making such enquiry that could be treated as final. There is no material before us to ascertain as to whether the conditions mentioned in Section 27 were fulfilled in the facts of this case. That is to say, we are not in a position to hold that this is a case where the Board acted on its own and that a question arose as to whether it CRP.NO.779/08 59 is wakf property and further there was an enquiry and a decision followed on the basis of the enquiry. We find merit in the finding of the tribunal that Section 40 of the Wakf Act, 1995 which is para materia with Section 27 of the Wakf Act, 1954 cannot apply to the facts of this case. It is not established before us that the Board has made an enquiry within the meaning of sub-section (3) of Section 40 of the Wakf Act.
28. Ext.A1, no doubt, is the extract from the register of wakfs. It shows that the petitioner wakf was registered in the year 1961. It further shows that it was published in the Gazette on 8.12.1964. Ext.A2 Certificate No.B1-3300/CR dated 27.2.2008 issued by the Chief Executive Officer in-charge of the Kerala State Wakf Board reads as follows:
"This is to certify that the Abdul Sathar Haji Moosa Sait Dharmasthapanam and its properties have been registered with the Kerala State Wakf Board in the year 1961, as required under Section 36 of the Wakf Act, 1995 (Central Act 43 of 1995), its Registration Number being 3300/RA. Sri. Adam Aboobacker Sait is the CRP.NO.779/08 60 present Managing Trustee of the wakf. This certificate issued to produce before the Court."
Section 36 of the Wakf Act, 1995 provides that every wakf whether created before or after commencement of the Act, is to be registered at the Office of the Board. Section 36(8) of the Wakf Act, 1995 provides that in the case of wakfs created before the commencement of the Act, application for registration shall be made within three months from the commencement and in the case of wakfs created after such commencement, within three months from the date of creation of the wakfs. Section 43 of the Wakf Act, 1995, however, provides that it shall not be necessary to register the wakf which has been registered before commencement of this Act, under any law for the time being in force and such a registration made before commencement of the Act shall be deemed to be registration made under this Act. Therefore, going by Section 43 of the Wakf Act, 1995, there was no need at all to register the wakf again under the 1995 Act.
29. Learned counsel for the petitioner brought to our notice a list of wakfs published including the petitioner as a CRP.NO.779/08 61 wakf. No doubt, it is not produced supported by a petition as such. Sub-section (2) of Section 5 of the Wakf Act, 1954 which corresponds to Section 5 of the 1995 Act, provides for publication of a list of wakfs. Section 6 of the Wakf Act, 1954 which is again similar to Section 6 of the Wakf Act, 1995 provides for resolution of disputes regarding wakfs. Section 6 of both the Acts provides that if any question arises whether a particular property specified is wakf property in the list of wakfs, inter alia, the Board or the Mutawalli or any person interested may institute a Suit in a civil court of competent jurisdiction, and that the decision of the civil court shall be final. A period of one year from the date of publication of the list is prescribed as the period of limitation for such Suits. Sub- section (4) of Section 6 provides that the list published under sub-section (2) of Section 5 shall unless it is modified by the decision of the civil court be final and conclusive. "Person interested in wakf" is defined in both the Acts which is para materia. Section 3(k) of the Wakf Act, 1995 which is para CRP.NO.779/08 62 materia with Section 2(h) of the Wakf Act, 1954 reads as follows:
"Section 3(k): "Person interested in a wakf", means any person who is entitled to receive any pecuniary or other benefits from the wakf and includes -
(i) any person who has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, khangah, maqbara, graveyard or any other religious institutions connected with the wakf or to participate in any religious or charitable institution under the wakf;
(ii) the wakif and any descendant of the wakif and the mutawalli."
Going by the definition, it, inter alia, includes persons who are entitled to receive any pecuniary or other benefit from the wakfs and includes any descendant of the wakif. In the Written Statement filed by defendants 1, 2 and 4, they have described themselves as follows:
"The said Dharmasthapanam was created by Abdusathar Haji Moosa, the father's mother's father of these defendants."
CRP.NO.779/08 63
That is to say, the paternal grandmother of defendants 1, 2 and 4 was one of the daughters of the testator who executed Ext.A6. However, the list was not in evidence.
30. It is clear that by Ext.A6, the testator has created what can be called a mixed wakf. A mixed wakf is not a mere wakf- alal-aulad, but it also provides for religious and charitable purposes, as is clear from Clause (8) of Ext.A6. The wakf as understood in the Wakf Act, 1954 and the Wakf Act, 1995 will not include a mere wakf-alal-aulad. This is for the reason that wakf-alal-aulad has been specifically culled out from out of the general concept of wakf and conditioned and limited even though it is included as a wakf by the words, to the extent that property is dedicated for any purpose which is pious, religious or charitable as per Muhammadan Law. While it is true that under the Muhammadan Law, providing for one's children and descendants was regarded as a pious object, by way of statutory intervention, namely the manner in which wakf has been defined in the Wakf Act, 1954 and the Wakf Act, 1995, we are of the CRP.NO.779/08 64 view that the word "pious" when used in the inclusionary definition of wakf-alal-aulad, will not take in providing for children or descendants of children. Any other view, would result in rendering the words "to the extent the property is dedicated for any purpose which is pious, religious or charitable" meaningless and redundant.
31. A perusal of Clause 7 of Ext.A6 would show that the testator has set apart the properties contained in B schedule and all the improvements therein for the protection of himself and his family members and spiritual gain. It is made over as the property of the Dharmasthapanam. It is further stated that after his death, the pattayam shall be taken in the name of the Dharmasthapanam. Thus, the property was set apart or dedicated which could be treated as religious, charitable along with pious purpose. There can be no manner of doubt that one- fourth of the income from the said properties can be said to be set apart for purposes which are religious and charitable under the Muhammadan Law. Therefore, it could be said that there is CRP.NO.779/08 65 dedication of properties for the purposes which can be considered religious and charitable under the Muhammadan Law.
32. Now, we have to examine the true interpretation which emerges of the provisions of Clause 9. On the one hand, it is contended by the petitioner that under the said Clause, amounts were set apart only to the poor descendants of the testator. This is contested by respondents 1 to 4. The crucial words on which this dispute arises, provide as follows: "From the balance three parts, two parts are to be set apart as follows:
The testator's grandson Moosa through his deceased son Abdulkareem, his sisters and the testator's daughters, their children and grandsons who are his descendants, if any are suffering due to poverty, they also and those who are living under them, are to be given amounts towards food, dress accordingly to their status and also for their educational purposes. It is also necessary to notice Clause 13. In Clause 13, it is, inter alia, stated that by the grace of God, Moosa, his sisters CRP.NO.779/08 66 and the testator's daughters are at present in a good economic condition. The testator prays that they may continue as such. He further states that they may not have to be given any amounts under Clause 9. In such circumstances, Clause 13 further recites the testator's intention that two parts mentioned in Clause 9, which remains after providing for those entitled under Clause 9, the balance is to be utilised along with one-fourths for the purchase of assets. A perusal of Clauses 9 and 13 together would show that the testator intended that the benefit of the two- fourths income from B schedule properties is vouchsafed only for the poor among the descendants. It is in this context that we bear in mind the view taken by the learned Single Judge of this Court that this is a case where the testator who executed Ext.A6 intended to benefit the poor among his relations unlike the situation in the case in Fazlul Rabbi Pradhan & Another v. State of West Bengal and Others (AIR 1965 SC 1722). At any rate, it is quite clear that there is property dedicated for religious and charitable purposes as is evident from a perusal of Clause 8 to CRP.NO.779/08 67 the extent of one-fourth. In the facts of this case, therefore, we would think that it cannot be held that Ext.A6 cannot be said to create a wakf in respect of B Schedule. In such circumstances, we are of the view that the Tribunal was in error in holding that there is no wakf as far as B schedule property was concerned. Accordingly, we allow the Civil Revision Petition, set aside the order of the Wakf Tribunal and direct it to consider the Petition filed by the petitioner on merits.
Sd/= K.M. JOSEPH, JUDGE Sd/= M.L.JOSEPH FRANCIS, JUDGE kbk.
// True Copy // PS to Judge CRP.NO.779/08 68