Kerala High Court
Shamsu Musliar vs Kochumon on 21 December, 2009
Bench: P.R.Raman, P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 711 of 2005()
1. SHAMSU MUSLIAR,
... Petitioner
2. SALIHATH, D/O. UNNEEN MUSLIAR, DO. DO.
3. ABDUL SALAM, UBAIDULLA,
4. UNNI MOHIYUDHEEN UBAIDULLA, DO. DO.
5. SHAREEFA, D/O. UBAIDULLA MUSLIAR
6. SADAKATHULLA, S/O. RAHUMATHULLA,
7. JALALUDHEEN, S/O. RAHUMATHULLA,
8. THASNEEMA, D/O. RAHUMATHULLA,
9. NASARUDHEEN DARIMI,
10. NAJMA, D/O. RAHUMATHULLA, DO. DO.
Vs
1. KOCHUMON, S/O. MOHAMMED,
... Respondent
2. HYDROS, S/O. BEERAN,
3. KOCHU MOHAMMED, S/O. BEERAN,
4. FAZAL, S/O. KOCHUMON, KALLUPARAMBIL
5. SALIM, S/O. SAIDU MOHAMMED,
6. PONMARIKDAM JUMA-ATH MOHIYUDHEEN
7. SECRETARY, PONMARIKUDAM JUMA-ATH
8. NASEEMULLAH, S/O. RAHMATHULLA,
9. THE KERALA WAKF BOARD, REPRESENTED
For Petitioner :SRI.T.H.ABDUL AZEEZ
For Respondent :SRI.ESM.KABEER
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :21/12/2009
O R D E R
P.R.RAMAN & P.R.RAMACHANDRA MENON
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C.R.P.No. 711 of 2005
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Dated this the 21st December, 2009
O R D E R
Raman, J.
This revision petition is directed against the order of the Wakf Tribunal, Ernakulam, in W.O.A.No.3 of 2003, filed by the revision petitioners herein, against the order of the Wakf Board, Ernakulam.
2. The revision petitioners are stated to be the descendants of one Unneen Musliar and Mahamood Musliar, whose dead bodies were buried in the grave yard of Ponmanikudam Juma-ath Mohiyadheen Mosque. Tombs were also constructed in the burial places. The said Unneen Musliar was a saintly person and so the Tomb constructed in the burial place attracted several devotees in the area, who offer their prayers and offerings, and the entire income of the 'Jaram' was CRP.No.711 of 2005 2 being appropriated by the family of the saint, now by the petitioners. When his son, Muhammed Musliar, died, his body was also buried near the Tomb of Unneen Musliar. Later by an unwritten understanding between the 'Juma-ath committee' and the descendants of Unneen Musliar and Muhammed Musliar, 40% of the income was agreed to be paid to the committee and 60% to the decendants. Thereafter, this 40:60 ratio was modified into 50:50. It is also stated that the Juma-ath committee is enjoying only 50% of the income, as evident from clause (13) of the bye law, and this is one of the several sources of income obtained by the Juma-ath.
3. The dispute arose because, according to the respondents, the burial place is a 'Public Wakf' and adjacent to that, there is a Mosque. Therefore, merely by permitting the Corpse of Unneen Musliar and his son being buried in that grave yard, will in no way confer a right as such on the descendants to appropriate any income from the 'Jaram' kept therein. According to them, whatever acquisition made to the Public Wakf CRP.No.711 of 2005 3 will form part of the Wakf only and since the entire Wakf is dedicated in the name of God, whatever income derived from the Wakf property should necessarily go to the Wakf and not to any private individual.
4. However, the petitioners contended that deriving the income from the 'Jaram' kept in front of the Tombs constructed in memory of the great Saints and appropriating a portion of the income by way of long practice recognised even by the committee, is in no way 'unislamic'. According to them, but for this income, there is only a negligible income from the Mosque. Therefore, according to them, the long established custom and subsequent agreement between the parties, whereby 50% of the income was volunteered to be given up by the petitioners cannot be disrupted at this belated stage and they have already acquired a right in itself. More than 30 years have elapsed after this arrangement or custom having come into effect. Therefore, the respondents have no right now to complain or to object to the receipt of 50% income from the 'Jaram' by the CRP.No.711 of 2005 4 petitioners and if at all, there was any such right for the respondents, it is barred by limitation.
5. Few Juma-ath members of the locality filed a petition before the Wakf Board, which was numbered as petition No.37/2000. The main prayers in the petition are to ensure by appropriate orders that the income obtained from the 'Jaram' kept in front of the Tombs of Unneen Musliar and his son cannot be lost to the Wakf and it is to be protected as Wakf property, and also for auditing the accounts for the last 25 years. They have also made a prayer for conducting the election to the 'Ponmarikudam Juma-ath Moiyudeen Palli' under the control of the Wakf Board. The specific objection raised by the petitioners was that Unneen Musliar died 70 years back and his dead body was buried in the buridal ground, later a Tomb was constructed and 'Jaram' was kept, where the devotees used to make their prayers and offerings to the 'Jaram' kept there. Repairs to the 'Jaram' was also done by some of the descendants of the Saint Unneen Musliar. But in the past 30 years, some changes were CRP.No.711 of 2005 5 made in the matter of apportionment of the income from the 'Jaram' and as stated earlier, 40% was agreed to be given to the Juma-ath and thereafter it was increased to 50%. Out of the 50% of the income from the 'Jaram', 10% is donated to the Juma-ath towards the renovation of the Mosque. The Wakf Board, by its order, dated 9.6.2003, found that the Tombs were in the public burial ground which is a Wakf property, and, therefore, the income from the 'Jaram' actually belongs to the Wakf. It is true that for the past several years, income is taken by the descendants of Unneen Musliar and his sons and this fact is admitted by both the sides. But there is no legal right for taking such income by the descendants. It is also found that the offerings made by the devotees in the 'Jaram' were impliedly agreed to be taken by the descendants by the beneficiaries of the Wakf as also the Administrators of the Wakf, and that the petitioners herein thought that this has conferred a right in themselves. But according to the Wakf Board, this is not correct and that no individual has any right to take away the income CRP.No.711 of 2005 6 from a 'Public Wakf'. Merely because they have been taking the income from the 'Jaram' kept in the Public Wakf, no right as such is conferred and the only person entitled for the income is the 'Muthawalli' under the Wakf, and whatever agreement or understanding, if any contrary to this, will not affect the Public Wakf. After arriving at such finding, the Wakf Board directed to conduct a fresh election to the Juma-ath committee and also to audit the Wakf accounts. It also injuncted the petitioners herein from taking any income from the 'Jaram'.
6. Aggrieved thereby, the petitioners preferred W.O.A.No.3/2003 before the Wakf Tribunal. But the Wakf Tribunal dismissed the said application. However, it found that the property in which the 'Jaram' was situated formerly belonged to one Uzhavath Nohakutty. The burial ground also is a common burial ground used for the muslim inhabitants of the locality. The 'Jaram', where the body was buried, was part and parcel of the Wakf property. The 'maqbara' of the son of Unneen Musliar was also in the Wakf property. Altogether there were about 500 CRP.No.711 of 2005 7 'khabars' of various mahal members in the burial ground; that the property in which the 'Jaram' is situated is the Wakf Property and 'Jaram' has to be maintained and managed by the mahal committee. It also found that for the construction of the Mosque, the deceased Unneen Musliar was taking active part, and after his death, he was buried in the common burial ground. Afterwards, a 'Jaram' was constructed by spending money by his son Ubaidulla. It was also stated that during that period, the administration of the mahal was done by four Karanavers. This 'Jaram' was constructed with the consent and knowledge of the four karanavers. After the construction of the 'Jaram', income was generating from it, due to the visit of worshippers. Later, offering boxes were installed. Thereafter, 40% of the income from the 'Jaram' was agreed to be given to the mahal committee and then the share agreed to be given to the committee was enhanced to 50%.
7. According to the Tribunal, the permanent dedication by a person professing Islam of any movable or CRP.No.711 of 2005 8 immovable property for any purpose recognised by the Muslim law as pious, religious or charitable, is a Wakf as defined under the Act; the 'Jaram' is situated in the Wakf property, and therefore, it is a part of the Wakf; the income from the 'Jaram' has to be used to fulfill the objects for which the Wakf is created, as noted in Ext.A1, Wakf Deed; and that the object of the Wakf can never be to give the income to the family members of Unneen Musliar, but for the 'khaber' of Unneen Musliar, enormous wealth would not have come to the mahal.
8. The main dispute between the parties is regarding the partaking of income from the 'Jaram' kept on the side of the Tombs of Unneen Musliar and his son. The further direction issued by the Wakf Board regarding the election is not seriously under challenge . Hence, the point that arises for consideration is as to whether the petitioners can be injuncted from taking any income from the 'Jaram' or are they entitled to continue to receive 50% of the income, as was done earlier. CRP.No.711 of 2005 9
9. Both sides have placed reliance on the commentaries by various authors and also on certain decisions . In Advocate General of Bombay v. Yusuf Ali Ebrahim (AIR 1921 Bombay 338 at page 358), it was held that the Wakf for a perpectual upkeep of a Tomb of saint is valid and so also a Wakf for feasts and ceremonies by a whole community in honour of a saint. 'Dargah', literally means a threshold. It is usefully applied to the shrines or Tomb of a Muslim saint, and it generally includes group of buildings of which the Tomb is the nucleus. (See Justice S.I.Jafris "Wakf Laws in India", 5th Edition (2009)
10. In Ameer Ali's Commentaries on Mohammedan Law, 5th Edition (2009), Revised by Justice S.H.A.Raza, it is said that the Wakf may be created for the benefit of any person or class of persons, or for any object of piety or charity, and what is "good" or "pious" or "charitable" is the approval of the Almighty. Every "good purpose" which God approves, or by which approach is attained to the Deity, is a fitting purpose for a valid and lawful Wakf or dedication. It is CRP.No.711 of 2005 10 also said that in the Islamic system, there is no such thing as a dedication "solely to the worship of God". A dedication "solely to the worship of God" is an unmeaning phrase in Islam. The service of man and the good of humanity constitute pre- eminently the service and worship of God. Every thing which is dedicated to God is in reality for the good of mankind; and everything which is dedicated for the good of human beings, individually or collectively, is for the service of God. Every pious act is 'ibadat' (worship), "the service of God" to provide maintenance for one's parents, for one's children, for one's poor relations are acts of idadat. The essence of every Wakf is 'kurbat', approach to the Almighty; prayers are one form of kurbat.
11. In B.R.Verma's Commentaries on Mohammedan Law, 11th Edition (2009), it was said that the title to Wakf property could be prescribed by adverse possession is clear from the famous case of Sahidganj Mosque, reported as Mosque known as Masjid Shahid Ganj v. Shiromani Gurudwara CRP.No.711 of 2005 11 prabandhak Committee. (See AIR 1940 PC 166). Where the offerings are presented for the specific use of dargah (e.g., qabarposhes, as well as gold or silver vessels or implements presented for the use of the dargah), they are property of the dargah and must be kept by the Dargah committee. (See AIR PC
71). But all charitable donations and profits from the endowments should be distributed among the heirs of the saint, not according to the shares of inheritance, but equally. If there are no heirs, then they should be distributed among servants, and, if there are no servants, they should be distributed among necessitous Muslims. The same is the case of offerings made at the shrine. (See Macnaughten 338-339, case VII)
12. In Syed Mohd. Salie Labbai (Dead) by L.Rs. And others v. Mohd. Hanifa (Dead) by L.Rs and others (AIR 1976 SC 1569), it was held that once the founder dedicates the site for the purpose of building a public mosque and after the mosque is built, prayers are offered in the mosque, the site and the mosque become Wakf properties and the ownership CRP.No.711 of 2005 12 of the founder is completely extinguished. Under the Mahomedan Law, no Muslim can be denied the right to offer prayers etc. in a mosque, to whatever section or creed he may belong. Similarly, the adjuncts to the mosque, which are also used for religious purposes, become as much a part of the mosque as the mosque itself.
13. In Siromani and another v. Hemkumar and others (AIR 1968 SC 1299), a question as to essentials of a custom to be proved came up for consideration under Hindu Law. It was held that a custom must be proved to be ancient, certain and reasonable, if it is to be recognised and acted upon by Courts of law.
14. In the Kerala Wakf Board, Ernakulam v.
Valia Maliyekkal Koyanji Koya Thangal (AIR 1985 KERALA
228), the members of the plaintiff's family entered into a 'karar', as per which the suit properties were kept in common, under the terms and conditions mentioned in that document. Two items CRP.No.711 of 2005 13 are described as 'mukamb' parambas. On a reading of the relevant clauses in the karar, it was held that there was no dedication of the property as Wakf; that the document did not contain any provision directing the manager to apply the income of the properties for any purpose recognised by Muslim law as pious, religious or charitable. Since there was nothing in the document to spell out a dedication of properties as Wakf, it could not be said that a valid wakf was created by it. True, the dedication as Wakf would be presumed by immemorial user, if the evidence in case made out that the Muslim public of the locality had been using the two mukambs as places for prayer from time immemorial.
15. In Syed Altaf Hussain and others v. Diwan Syed Ali Rasul Ali Khan and others (AIR 1938 PC 71), the matter concerning the dispute relating to the distribution of the offerings made by the pilgrims to the tomb of Khwaja Moinuddin Chisti at Ajmer came up for consideration. The tomb in question, generally known as Durgah Khwaja Sahib, Ajmer, has CRP.No.711 of 2005 14 for centuries past, been a place of pilgrimage for devout Muslims; and the presents made by the pilgrims to the Durgah have led to frequent disputes between the Sajjada Nashin on the one side, and the Khadims on the other side. The Sajjada Nashin is a descendant of the Saint, while the Khadims are the descendants of the original disciples of the Saint. In September, 1912, the predecessor of the present Sajjada Nashin granted to Khadims a perpetual lease of the Sajjada Nashin's share of the offerings made by the Shrine for Rs.500 a year. But in 1922 Diwan Sharfuddin died and was succeeded by Diwan Syed Ale Rasul Ali Khan, who refused to recognise the validity of the lease granted by his predecessor in respect of the Sajjada Nashin's share of the offerings. His refusal resulted in the revival of the old dispute and ultimately led to the present dispute as well. The main combatants are the Sajjada Nashin and the Khadims, but there is also a Durgah Committee which is interested in the offerings. This committee consists of persons who were appointed, under the Religious Endowments Act to perform the CRP.No.711 of 2005 15 duties of the trustees of the Durgah property. It was also held that the Durgah Committee referred to in the judgment appealed against is a Committee to hold and to administer the Durgah property on behalf of the Durgah, and has no right as against the institution. On behalf of the Khadims, it was urged that they are entitled to all coins of two annas or less in value, and that it is immaterial whether they are made of copper or any other metal such as silver or nickel. It was held that Khadims were allowed to take coins of a small value which were given by the pilgrims for their services, and there is no valid reason why the Sajjada Nashin, who occupies a position of importance and dignity should claim a share in coins of small value which are given by the pilgrims as rewards for the services rendered to them by the servitors.
16. As regards the offerings made by the pilgrims, it was conceded by all the parties before the Court of Appeal that a distinction must be drawn between those articles, such a qabarposhes (coverings for the tomb) which are presented for the CRP.No.711 of 2005 16 use of the Durgah, and the other offerings which are made at the Durgah. While the offerings belonging to the latter category may be divisible between the Diwan and the Khadims, those made for the specific use of the Durgah are the property of the Durgah. The Khadims however claim that an article presented for the use of the Durgah, becomes the property of the Durgah only if the donor pays a tawan or custody money to them in respect of that article. Coming to the question of respective rights of the Diwan and the Khadims in the offerings which are not the exclusive property of the Durgah, it was contended by the Diwan that he is entitled to all the offerings made at the Durgah to the exclusion of the Khadims, and this claim was based upon a 'firman' alleged to have been granted by the Emperor Shah Jahan in 1640 A.D.
17. In the light of the settled position as above discussed, we have no hesitation to hold that once a property is dedicated for any purpose recognised by the Muslim Law as pious, religious and charitable, it is a Wakf. It cannot be taken CRP.No.711 of 2005 17 back as the dedication becomes complete. In this case, there is no dispute that the graveyard is a Wakf property and that the public has got a right to bury the dead body in the graveyard. The Saint whose body was also laid for burial, therefore, does not confer any special right as such. But, subsequently a tomb was constructed with permission and a 'Jaram' was also kept in front of the tomb, and that large number of devotees who make their prayers in front of the tombs used to make their offerings in the 'Jaram'. Therefore, they knew the user of the money and their offerings, and for the past several years, the income from the 'Jaram' was appropriated by the family of the Saints without there being any objection by the Wakf Committee. Subsequently, Wakf Committee itself, by agreement with the members of the family of the Saint, agreed to give only 50% and now only 50% of the income from the 'Jaram' is given to the family of the Saint. This is evidenced by clause 14 of Chapter 6 of Bye-law, which clearly shows that the income of the Wakf is only 50% of the income from the 'Jaram'. Thus, by virtue of the long usage, CRP.No.711 of 2005 18 practice and agreement, the family of the Saint, viz., the revision petitioners herein, had been receiving a portion of the income from the 'Jaram'. It is not shown that the payment of such income to the family of the a great Saint, as intended to by the devotees who make their offerings, is in any way unislamic or contrary to the Wakf. It must be remembered that a Wakf property can be put to use in several ways without violating the manner in which the dedication is made by the founder. The Wakf property may include buildings and lands which might be leased out and rental income received therefrom could be used for charitable purposes. Mere user of the building by other in no way is, therefore, contrary to the Wakf itself.
18. Here, it has been proved that the income from the 'Jaram' is the main income of the Mosque itself. That means, faith of the people by making offerings before the tomb is an indication of the regard they have to the Great Saint and they knew that these offerings are being taken by the family of the Saint because of the long practice established. If so, we do not CRP.No.711 of 2005 19 find that appropriation of a portion of the income to the family of the Saint is in any way contrary to the Wakf.
In the result, the order of injunction passed by the Wakf Tribunal, against the revision petitioners restricting them from taking any income from the 'Jaram' is hereby set aside. But the rest of the impugned order directing the election to be conducted to the Wakf Committee and to submit accounts are not liable to be interfered with.
C.R.P. is allowed as above.
P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE.
nj.