Kerala High Court
Haji.P.Liakath Alikhan vs K.Unneenkutty Saquafi on 7 September, 2005
Author: K.P.Balachandran
Bench: K.P.Balachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 423 of 2004
1. HAJI.P.LIAKATH ALIKHAN,
... Petitioner
Vs
1. K.UNNEENKUTTY SAQUAFI, KUNNATH HOUSE,
... Respondent
2. M.P.ABDUL RAHIMAN FAIZEE,
3. K.P.MOHAMMED MUSLIAR, KOTTAMPARA HOUSE,
4. T.ABOOBACKER HAJI, S/O.KUTTY MOHAMMED
5. K,M,MANAF, S/O.MAMMUNNY, KOLAYIL
6. M.K.MOHAMMED IBRAHIM, MALEKALAVARA
7. DARUL AMAN ISLAMIC COMPLED, FORMER
8. KERALA WAKF BORAD, REPRESENTED BY ITS
For Petitioner :SRI.T.H.ABDUL AZEEZ
For Respondent :SRI.T.M.ABDUL LATHEEF
The Hon'ble MR. Justice R.BHASKARAN
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated : 07/09/2005
O R D E R
.SP 2 .TM 3 .BM 2 R.Bhaskaran & K.P.Balachandran, JJ.@@ j
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-#-@@ j )) .HE 1 Bhaskaran, J.@@ AAAAAAAAAAAAA .PL 56 This revision petition raises the question as to whether the second defendant is a wakf and whether the Wakf Tribunal has jurisdiction to try the suit. The second defendant is admittedly a society registered under the Societies Registration Act formed for charitable and educational purpose. It is also governed by the rules of any one of the sections of Muslim called Safi, Hanafi, Hambali or Maliki.
2. Pursuant to a direction by this Court in C.R.P.1846/2003 to the Wakf Tribunal, Ernakulam to decide this question afresh the Tribunal considered it as a preliminary issue and found that the second defendant is a wakf and is subject to the jurisdiction of the Tribunal. This revision petition is filed by the first defendant, the President Darul Aman Islamic Complex, Kalladikode.
3. The suit is filed for the following reliefs:
1) To pass a decree declaring that the first@@ i defendant is not legally entitled to continue as Chairman of the 2nd defendant-Association.
2) To pass a decree directing the 2nd defendant to@@ i convene meeting of general body by allowing the members as on 5-7-2003 and excluding the members admitted illegally by the first defendant by making false entries in Minutes Book kept in Police custody.
3) To pass a decree directing the 2nd defendant@@ i to conduct the meeting of the Working Committee and to discuss about the illegal action of the first defendant and to take decision thereon.
4) To pass a decree appointing a Presiding@@ i Officer to preside over the meeting of the general body by ordering the said officer to conduct the general body meeting with the members existed prior to 5-7-2003.
5) To pass a decree directing the 3rd defendant@@ i Wakf Board to appoint an officer to conduct audit of the accounts of the 2nd defendant and to recover the amounts due from the first defendant and also to order initiating of prosecution against the first defendant for illegal misappropriation of Wakf fund.
6) To pass a decree declaring that any person@@ i inducted as member by the first defendant is having no right to participate in the meeting of the 2nd defendant.
7) To pass a decree for permanent prohibitory@@ i injunction restraining the first defendant from discharging any function as Chairman of the 2nd defendant-Association expending any amounts, collecting any income, amounts, etc.
8) Grant such other reliefs as may be prayed for@@ i and which this Honourable Tribunal deems fit and proper in the interest of justice during the course of the trial of this suit.
4. In the plaint it is stated that the plaintiffs are the Working Committee Members and office bearers of Darul Aman Islamic Complex which is a wakf registered under the Literary and Charitable Societies Registration Act. Though the nomenclature Islamic Complex is used, the provisions in the byelaw clearly showed that it is a wakf and the Managing Committee is a Muthawalli Committee. The rest of the averments in the plaint relates to the complaint against the first defendant and the attempts of the plaintiffs to convene general body etc. which are not very material for the decision of the issues involved in this revision petition.
5. In the written statement the first defendant contended that the 2nd defendant is not a wakf. The properties are not registered with the Wakf Board. The properties of the 2nd defendant have not been permanently dedicated for the purposes recognised as pious, religious, charitable with an intention to create wakf. The 2nd defendant is a charitable society registered under the Literary and Charitable Societies Registration act, 1860. The Ist defendant is the founder President. The Ist defendant and other founder members never intended to establish a wakf institution and to dedicate the properties as wakf. Since the 2nd defendant is not a wakf, the Tribunal has no jurisdiction to try the suit. The other averments in the plaint are also denied in the written statement.
6. Therefore the question to be considered is whether the Darul Aman Islamic Complex is a wakf. The Tribunal has held that even though there is no express dedication it can be validly found that the 2nd defendant is a wakf by user. The learned counsel for the revision petitioner contends that the Tribunal has totally misunderstood the expression "Wakf by user" and the finding that the 2nd defendant is a wakf is absolutely wrong.
7. Ext.B1 is the byelaw of Kalladikode Darul Islamic Complex Committee and Ext.B5 is the Memorandum of Association dated 23-12-1988. A reading of Exts.B1 and B5 discloses the following aspects. In Ext.B1 the aims of the society are to give protection to the orphans and give them education religious, technical and professional and to establish Yathimkhana, Arabic College, Mosque, Training Institute, Health Care Centre, Madrassa, Nursery School etc. The activities of the society will be based on the faith of Asu Ari, Mathurithi and based on any one of the tenets of the sections called Safi, Hanafi, Hambali or Maliki. The disputes are to be settled on the basis of decisions of the Pandits of Samastha Kerala Jam Iyyathul Ulama. The life members have to contribute Rs.6,000/- and ordinary members have to contribute Rs.51/- and must be persons willing to abide by the byelaws. The income has to be spent for the purposes above mentioned. In case the society is to stop functioning the assets must vest in some other institutions of the same objects or otherwise it will vest in the State. It is with these provisions in the byelaws that we have to consider the question as to whether the 2nd defendant is a wakf or not.
8. A wakf is defined under Sec.3 (r) of the Wakf Act 1995. It is a 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 a wakf by user, grant and wakf-alal-aulad subject to the conditions mentioned in the section. The basic thing for a wakf is dedication of movable or immovable property for pious, religious or charitable purpose. The Tribunal has found that though there is no such dedication it can be treated as a wakf by user. For that purpose the Tribunal has relied on the decisions of this Court in Pookoya Haji Vs. Cheiyakoya@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAA (2003 (3) KLT 32). The question considered in that case@@ AAAAAAAAAAAAAAAAAA was the scope of the power of the Tribunal. It is clearly stated by the Division Bench that a wakf normally requires express dedication, but if land has been used from time immemorial for a religious purpose then the land becomes a wakf by user. Can it be said in this case when the society was formed in 1988 under a byelaw that the property has been used from time immemorial? We are of opinion that it cannot be said and the Tribunal was clearly in error in placing reliance on a decision which has no application to the facts of the case. As noticed by this Court in Mariyumma Vs. Andunhi (1979 KLT 231) the@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA creation of a wakf is the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings. As a result of the creation of a wakf, the right of wakif is extinguished and the ownership is transferred to the Almighty. In this case there is even provision for devolution of the entire property to the State if the society is to extinguish and there is no other similar organisation to which it can be transferred. Though such a possibility is very remote and almost nil it is an indicator to show that there is no complete dedication of property to the Almighty.
9. The Supreme Court in Zain Yar Jung Vs.@@ AAAAAAAAAAAAAAAAAAAA Director of Endowments (AIR 1963 SC 985) dealt with the@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA distinction between public charitable trust, wakf and religious endowments recognised by Hindu Law. In that case since the beneficiaries were the general public it was found to be not a wakf. In the present case there is no dedication of any particular movable or immovable property for religious or charitable trust. It is only the objects of the trust that is mentioned in Ext.B5. The qualification to become a life member or ordinary member also is mentioned as contribution of certain amounts. In that respect also it can be said that there is no wakf created by Exts.B1 and B5. Though some decisions have been referred to by the counsel on both sides they were rendered under the Wakf Act, 1954 and after the new enactment in 1995 they have lost relevance and therefore we are not referring to them. But the fact remains that even after the new Act the essential requirement of permanent dedication of movable or immovable property for pious, religious or charitable purpose is required. Since even according to the Tribunal there is no express dedication and it is a wakf by user and wakf by user can be presumed only in case where a property has been used from time immemorial for a religious purpose, we are of the opinion that the Tribunal has gone wrong in holding that the 2nd defendant is a wakf.
We therefore allow this Civil Revision Petition and hold that the Tribunal has no jurisdiction to try the suit. The parties shall bear their costs.
R.Bhaskaran, Judge.
K.P.Balachandran, Judge.
MS ..........................................L.......T.......T...........T....J R.Bhaskaran & @@ j K.P.Balachandran, JJ.@@ j
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