Madras High Court
K.A.M. Meera Mohindeem (Died) And 8 ... vs M. Ali Malik And 5 Others on 18 June, 2001
ORDER
1. The unsuccessful defendants 1, 4 to 8 have filed the above second appeal. The plaintiffs are the sons of the first defendant. They filed a suit for declaration and for a permanent injunction or in the alternative for recovery of possession. The suit property is the landed property measuring 1 acre 57 cents.
2. According to the plaintiffs, the property originally belonged to one Sathakathulla Tharaganar. On 13.1.1905 he dedicated the first schedule property for the purpose of performing hie annual Fathiha on his death. This has been done orally. Under Ex.A1 dt.17.12.1921, Meeran Mohideen executed a settlement deed in favour of his grandson K.A. Mohamed Abdul Kadcr appointing him as Manager for performing the said Fathiha and to feed the poor people. Since the said Abdul Kader wanted to leave India in 1925, he executed Ex,A2 settlement deed dt. 12. 10.1925 in the name of his mother Mohamed Bathummal as his Manager for the wakf. After his return from foreign Country, his mother executed another document Ex.A3 settlement deed dt.20.1.1933 in favour of the said Abdul Kader as manager of the said property.
3. The said Abdul Kader was in possession and enjoyment of the said property and he was regularly performing the annual Fathiha till the date of his death. After his death, Muthawalliship of the wakf was devolved on defendants 1 and 2 as Abdul Kader had not nominated anyone else. The defendants 1 and 2 had been performing the annual Fathiha and poor feeding till 1978. After 1978, they have not performed the same and the 1st defendant started to sell the property to third party by taking Release deed from the second defendant.
On that basis, the plaintiffs have come forward with a plea that they have no right to sell the wakf property.
4. The defendants contested the suit contending inter-alia that the first schedule property was not dedicated for the purpose of any Wakf as alleged by the plaintiffs. No wakf was performed by Mohamed Abdul Kader as per the settlement deed. It is also stated that no Wakf can be created for the purpose for which the documents are executed. The performance of annual Fathiha, as alleged by the plaintiffs, was also denied.
5. The Trial Court, in O.S. No.88 of 1982, by Judgment dt.30.6.83, dismissed the suit holding that the plaintiffs have not proved the dedication and there is no evidence to establish the performance of Fathiha. The plaintiffs filed an appeal in A.S. No. 145 of 1983 on the file of the District Judge, Tirunelveli.
Learned District Judge reversed the judgment and decree of the Trial Court by declaring that the suit property if Wakf property and gave liberty to the Wakf Board to take appropriate steps for taking possession of the property under the Act and to appoint Muthavalli. So, the appellants have filed the above second appeal.
6. At the time of admission, the following substantial questions of law are framed:-
"1. Whether the suit filed by the plaintiff by barred by reason of Section 57(2) of the Wakf Act as the plaintiff had not obtained sanction of the Wakf Board before filing the suit?
2. Whether the plaintiffs, who are admittedly not the beirs of the transferor or beneficiaries or Muthavallies under the Wakf have locus standi to file the suit for declaration of Wakf and recovery or possession?
3. Whether the appellate court is right in holding that the Wakf is deemed to have created by long user when there is absolutely no evidence of performance of Wakf at any point of time?
4. Whether in the absence of duty of trust and in the absence of any evidence regarding performance of trust at any time the inference of trust by long user is justified?
5. Whether the appellate Court is justified in interfering with the discretion exercised by the trial Court in having dismissed the suit for not paying the proper court fee, when the appellate Court itself have come to the same conclusion that proper court fee had not been paid?
7. The plaintiffs are the sons of the first defendant. According to them, one Sathakathullah Tharaganar had dedicated the first schedule suit property for performing his annual fathiha on his death. The defendants denied the dedication as alleged by the plaintiffs. To establish the dedication, the Plaintiffs filed Ex.A.l to A.3 documents in which it is mentioned about the said fathiha. The Lower Appellate Court, while reversing the judgment of the Trial Court, found that by these documents, the plaintiffs have established regarding dedication and the existence of Wakf. The Lower Appellate Court also found that the first defendant has not come forward to give evidence to deny the existence of Wakf. By this, the Lower Appellate Court has placed the burden on the defendants to establish that there is no Wakf at all.
8. It is also relevant to mention here that there is no oral evidence to establish the dedication by original owner Sathakathulla Tharaganar. Under Ex.A.1, one Abdul Kader executed the settlement deed in favour of his grandson through his daughter to perform Fathiha. In the said document, it is stated that the said Tharaganar left the property with him for doing Fathiha. It is also started in the said document that Abdul Kader, the settle should do the poor feeding along with Fathiha. The same recitals find place in Ex.A.2 and A.3 also. From this, the plaintiffs are trying to establish that there was a dedication of property for the purpose of Wakf which has been continuously carried on by Abdul Kader.
9. Learned Senior counsel appearing for the appellants has submitted that there is no direct evidence for the purpose of dedication and so the Trial Court is correct in coming to the conclusion that the plaintiffs have not established the dedication itself. So, according to him, the suit property cannot be considered as Wakf property. He has also submitted that the Lower Appellate Court has wrongly placed the burden on the defendants to establish that there is no Wakf. Learned counsel appearing for the respondents, while answering this submission, had submitted that from the reading of the recitals in Ex.A1 to A3, they establish the dedication made by Tharaganar and in the absence of any contra evidence, the said recital a should be accepted.
10. As per the documents. Meeran Mohideen was authorised to do Fathiha from the income obtained from the property in question, it has to be considered whether the same can be considered as creation of Wakf. As submitted by the learned Senior counsel appearing for the appellants, absolutely there is no evidence on record to show lhat the original, owner, Tharaganar. While directing Meeran Mohideen to do Fathiha, has also directed to feed the poor. As stated already, to clarify this, there is no oral evidence. The documents also are not establishing the said fact.
11. Only on the basis of Ex.A.1, learned counsel appearing for the respondents has submitted that the existence of poor feeding even during original dedication, should be presumed. I am not able to accept the said submission. Under Ex.A.l only, Meeran Mohideen has given direction to Abdul Kader to do poor feeding at the time of Fathiha. In the absence of any such evidence to show that the poor feeding had to be done as per the original dedication, the submission of the learned counsel cannot be accepted.
12. Now on the basis of the above said findings, we have find out whether such a direction constitutes "a wakf. Learned senior counsel appearing for the appellants has relied on the judgments reported in Kaleloola Sahib v. Nusserudeen Sahib, 1895 1LR 19 Mad.201, Kunhamutty v. Thondikkodan Ahmad Musaliah and two others, 1LR 58 Mad. 204 and Kunmamutty v. Ahmad Musaliar, AIR 1935 Mad. 29 in support of his submission that the dedication for reciting koran over tomb of private persons does not create valid wakf.
13. In Kunmamutty v. Ahmad Musaliar, A.I.R. 1935 Mad. 29, relying on the other two judgments, a Division Bench of this Court, after considering the definition Wakf and 'Beneficiary", held as follows:-
In our view, it is quite clear that the dedication in question being merely for the purpose of reciting the Koran over a tomb of a private person did not create a valid Wakf."
14. Though teamed counsel appearing for the respondents, relying on Sattar Ismail v. Hamid Sait, A.I.R. 1944 Mad. 504 submitted that another Division Bench of this Court has distinguished the judgment in Kunmamutty v. Ahmad Musaliar, A.I.R. 1935 Mad 29 and held that the dedication to have Fathiha aiso should be considered as Wakf, I am not able to see any such discussion in the body of the Judgment in A.I.R. 1944 Mad. 504. In the said judgment, it is held that the observance of the anniversaries of the deaths of the testator and members of his family, involving, the feeding of the poor constitutes a valid object of the wakf. So, the said Judgment does not help the respondents to support their stand.
15. So, as held, in the Judgments cited supra, the alleged dedication was only for Fathiha and cannot be considered as Wakf at all.
16. Learned Senior counsel appearing for the appellant has also submitted that even such a poor feeding as contemplated under Ex.A1 will not come under the definition of "Wakf" as such feeding is not exclusively for Muslims. According to him, if any , Charity is not exclusively for muslims, the same cannot be considered as Wakf. In support, of his submission, he relied on a judgment reported in Kassimiah Charities v. Secretary M.S.W. Hoard, wherein a Division Bench of this Court, while considering Section 3(1) of the Wakf Act and other relevant provisions and also the judgment of the Supreme Court reported in Nawab Zain Yar Jung v. Director of Endowments Civil Appeal No.109 of 1961, held as follows:-
As we have pointed out, the essential character!slics of a wakf under the Muslim law is that if it were to be religious it should be only for the benefit of the members of the Muslim community and if it were to be secular the charity should be to the poor alone. A public utility like a school, college or hospital, bridge etc, cannot obviously be restricted to the poor alone or to the Muslims alone. Under the common law, therefore, Muslim lawyers recognised ihat public utilities could be wakfs notwithstanding the fact that non-Muslims were intended to participate in the benefit. But the Wakf Act is perhaps enacted designedly with a view of excluded those that confer benefits on non-Muslims. It it were to be otherwise it would undoubtedly lead to inconvenient results and conflicts. Let us give an example. Suppose a college has been founded by a Muslim in the predominantly Hindu locality with the express object of providing' education for seventy five per cent or more of Hindu students or students of an alien faith. It would certainly not have been ihe intention of the Legislature that such an institution should he managed by the wakf Board by classifying it either as a Sunni or Shia Wakf and then applying the law of wakfs to such an institution."
17. So the charity mentioned under Ex.A.l to A.3 cannot have any characteristic of wakf. The said recital establishes that poor feeding was in general and not exclusively to the muslims. From Ihe above, it is very clear that the alleged dedication by Tharaganar cannot be considered as Wakf so as to enable the plaintiffs to challenge the right of the first respondent to deal with the property.
18. The Lower Appellate Court has placed the burden on the defendants wrongly to establish that there was no Wakf. From the above said finding, it is clear that the plaintiffs have not established that the suit property is Wakf property. The Trial Court has found that there is no document to show that the property was considered as wakf property. There is no mutation in its name in the revenue records. The same was also not registered us Wakf before the Wakf Board. The Lower Appellate Court has a imply rejected the said finding on the basis that the same cannot have any relevance to decide whether the suit property is Wakf property.
19. Since the Lower Appellate Court has not properly considered the issue involved and in view of the above said findings, the judgment and decree of the Lower Appellate Court are set aside and the Judgment and decree of the Trial Court are restored. The second appeal is allowed. No Costs.