Delhi High Court
Indian Institute Of Islamic vs Delhi Wakf Board on 23 December, 2011
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat
IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 29.11.2011
DECIDED ON: 23.12.2011
+ CS(OS) Nos. 116/1972, 117/1972, 118/1972, 119/1972
CS(OS)116/1972
INDIAN INSTITUTE OF ISLAMIC ..... Plaintiff
CS(OS)117/1972
HAKIM HARI ABDUL HAMEED SAHIB ..... Plaintiff
CS(OS)118/1972
INSTITUTE OF HISTORY OF MEDICINE &
RESEARCH ..... Plaintiff
CS(OS)119/1972
HAMDARD NATIONAL FOUNDATION (INDIA) ..... Plaintiff
Versus
DELHI WAKF BOARD ..... Defendant
Appearance : Mr. Shanti Bhushan, Sr. Advocate, Mr. J.K. Seth, Sr.
Advocate, Ms. Shalini Kapoor, Ms. Promil Seth, Ms. Kriti
Arora & Mr. Imtiaz Ahmed Advocates for plaintiff in
CS(OS) Nos.116/1972, 118/1972.
Mr. J.K. Seth, Sr. Advocate, Ms. Shalini Kapoor,
Ms. Promil Seth, Ms. Kriti Arora & Mr. Imtiaz Ahmed
Advocates for plaintiff in CS(OS) Nos.117 & 119/1972
Mr. Bharat Bhushan Sawhney, Sr. Advocate with
Ms.Noorun Nahar Firdausi, Advocate for Defendant.
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CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE S.RAVINDRA BHAT
%
1. This common judgment will dispose of four suits; the first by the Hamdard
Dawakhana Wakf, (hereafter "the Dawakhana Wakf"- Suit No. 117/72)and the
others by Institute of Islamic Studies (later Jamia Hamdard -Suit No. 116/72);
Institute of History of Medicine and Medical Research (later Jamia Hamdard- Suit
No. 118/72) and Hamdard National Foundation (Suit No. 119/72). These four
plaintiffs claim declaration that a notification dated 12-12-1970, published in the
Delhi Gazette, on 19-12-1970 ("the impugned notification") by which through
entries 63, 63 (a), 63 (b) and 64, they were notified as wakfs, is illegal and void.
The Dawakhana Wakf was created on 29.08.1948 by Hakim Haji Abdul Hameed
Saheb (hereafter "original plaintiff"), his brother Hakim Hafiz Mohammed Said
and his mother Mst. Rabea Begum Saheba. Hakim Hafiz Mohammed Said was
declared an evacuee by the Custodian‟s order dated 1.8.1949 and Mst. Rabea
Begum Saheba died in Delhi on 9.10.1949. The original plaintiff became the sole
Mutawalli of the Dawakhana Wakf. The original plaintiff died on 22.07.1999; by
virtue of the wakf Deed dated 28.8.1948 and the declarations dated 10.10.1985 and
30.09.1995 (of the original plaintiff), Abdul Mueed the senior most amongst male
descendants of the sole Wakif Mutawalli became the chief Mutawalli for
management of the Dawakhana Wakf.
2. The suit contends that the Dawakhana Wakf was created as the founders
were desirous to setting apart and assigning a fixed portion of the income derived
from the business of Hamdard Dawakhana, which after the creation of the Trust,
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became the Dawakhana Wakf, for public welfare and charitable purposes to
advance the cause of Indian Medicine and for benefiting the countrymen from the
blessings of ancient system of medicine and ensuring that it is not thwarted by
selfish and unscrupulous conduct of anyone. The objects of the Wakf, inter-alia
relied on, are, establishment of a research Institute for the purpose of discovering
the properties, action and active principles of herbs and simple medicines; establish
and conduct a Tibbia College in conformity with known standards; to establish and
run charitable hospitals and clinics where poor patients are given free treatment
according to the principles of indigenous systems of medicines; to establish and
run educational, commercial, industrial and cultural institutions or to aid those
which are already in existence; to build schools, laboratories, inns, wells, mosques,
khanghas, grave-yards or such other buildings of a public nature as may benefit the
community and country of those which have as their objects perpetuation of the
memory of important historical incidents or historic personages or to aid in the
repairs, supervision, extension and improvement of those already in existence, and
to publish books, pictures, maps or literature or to aid in their publication by
which the community and country are likely to benefit.
3. It is contended that initially only the net profit of the business was created as
the income of the wakf, which was divided into two portions, one-fourth being
named as "Khandani income" and the three-fourth as the "Quami Income".
Khandani income devolved upon the founders and their heirs; the Quami income
on the other hand, was dedicated to the purposes of the charity. Later, in view of
the declaration dated 10.10.1985 by the original plaintiff as well as those of his two
sons Abdul Mueed and Hammad Ahmed, inter-alia, provisions in the Wakf deed
(dated 28.08.1948) relating to "Khandani Income" were deleted altogether.
"Khandani Income" was declared not to arise even after the original plaintiff‟s
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death and had ceased to exist for all times to come. It is asserted that the
Dawakhana Wakf does not fall within the purview of the Wakf Act, 1954
(hereafter "the Act") inter-alia because the dedication of quami income for public
or charitable purpose was not confined for the benefit of any particular community,
but for all. It is stated that the definition of the term "beneficiary" under law is not
in accord with objects of the Wakf deed, in question; the purposes for its creation
are not pious, charitable objects of public utility sanctioned by the Muslim Law,
but are secular. The suit also says that from its nature, dedication of income of a
business does not and cannot fulfill the twin conditions namely, permanent
dedication, and existence of movable and immovable property. It appears that wakf
of a running business with its assets and liabilities- as in this case was never in the
contemplation of the framers of the Act. The plaintiff also contends that the
provisions of Section 31 (to prepare a budget for the next year showing estimated
receipts and expenditure during that financial year) or section 3 (g) defining "net
annual income" and the deductions permissible under the Act cannot be applicable
to it. The Dawakhana prepares and sells its products/medicines directly and
through agents. It is impossible for such a concern to prepare a budget in advance
for the next year showing the estimated receipts and expenditure during the
financial year.
4. The plaint contends that it was never intended that a running business could
be subject-matter of a Wakf under the said Act. The definition of net annual
income in section 3 (g) of the Act and even the corresponding section 3 (j) of the
Wakf Act, 1995 points to the fact that this definition cannot appropriately be used
in relation to a business such as that of the Dawakhana. The gross income is
subject to the following deductions only:-
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(i) Land Revenue, cess, rates and taxes payable to Government or any local
authority.
(ii) Donations given or offerings made with a specific direction that they shall
form part of the corpus of the wakf.
The suit points out that no provision is made for deduction on account of expenses
and expenditure incurred in earning the income from a business namely cost of raw
materials, packing, packaging labour cost, commission to sellers and agents,
advertising, salary of staff, payment of house rents for the business premises,
including godowns, purchase of ne machinery, repairs to the existing machinery,
payment of provident fund to the employees etc., The permissible deductions in
section 3 (g) of the Act and even the corresponding Section 3 (j) of the Wakf Act,
1995 can relate to movable and immovable properties other than the income earned
form mercantile concern/business. It is also contended that the Dawakhana Wakf is
an industrial concern and governed by various laws, such as Industrial Disputes
Act, 1947, Delhi Shops and Establishment Act, Factories Act, 1948; Employees
Provident Fund Act, 1952, Payment of Bonus Act 1965; Employees State
Insurance Act, and The Drugs & Cosmetics Act etc. Under an Industrial Award,
the Dawakhana is obliged to provide payments to the employees; and pay
contributions to the Provident Fund scheme, as well as the Employees State
Insurance Act. Absence of provision for deductions on these and other accounts in
Section 3 (g) of the Act and even the corresponding section 3 (j) of the Wakf Act,
1995 conclusively shows that income from industrial business concern could not
be the subject- matter of a wakf. Therefore, contends the plaintiff, the objects of
the said wakf and the beneficiaries of the Dawakhana Wakf is not a "wakf"
governed by the Act. The notification No. 3533/70 dated 12.12.1970 published in
Delhi Gazette, on 31.12.1970 declaring the Dawakhana Wakf has therefore been
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impugned as illegal. The inclusion of the other plaintiffs, i.e. (i)Hamdard Research
Clinic and Nursing Home, Asaf Ali Road, New Delhi; (ii) Institute of History
of Medicines and Medical Research, Village Badrapur, Delhi; (iii) Jamia
Tibbia Unani Medical College, Gali Qasimjan, Delhi; (iv) Ayurvedic Free
Dispensary, Karol Bagh, New Delhi; (v) Unani Free Dispensary, Village,
Badarpur, Delhi and (vi) Hamdard National Foundation (India), have similarly
been impugned. The Hamdard Research Clinic and Nursing Home and the Institute
of History of Medicines and Medical Research too were notified at serial Nos. 63
(a) and 63 (b) of the said notification. The plaintiff submits that neither the
Dawakhana Wakf nor any other of the said institutions is "wakf" within the Act.
5. It is alleged that out of the institutions mentioned previously the "Hamdard
Research Clinic and Nursing Home, New Delhi" was established by the Hamdard
National Foundation (India), a society registered under Societies Registration Act,
XXI of 1960 and is beneficiary of the Dawakhana Wakf as it is person or an object
for which the Dawakhana Wakf allocates and dedicates a percentage of income. It
is an autonomous body incorporated as a society and is functioning under an
independent Governing Council having its Rules and Regulations and enjoined to
promote specified objects, principles and functions. The Dawakaha Wakf has no
control over its affairs of management or discretion. The "Quami Amdani Income"
given to Hamdard National Foundation (India) is a dedication irrevocable and
absolute and whatever money is donated to the Hamdard National Foundation
(India) is property of the donee institutions. The donors, i.e., Dawakaha Wakf
cannot in any way, legally exercise any proprietary rights or authority of ownership
in dealing with or otherwise disposing of the money donated by it or have control
over property acquired with such money, nor can it reclaim the money or property
irrevocably dedicated or donated, or a part of it. Besides this the object of the
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society is to control and supervise proper utilization of the income received from
any other body, person or concern, Indian or foreign, in any form, as aid, to
promote support and develop indigenous systems of medicine and medical science
and their utility to provide medical, educational, economic and other sorts of aid to
deserving persons irrespective of religion, caste or creed and institutions or
humanitarian services etc. The source of this income can be from Muslims and
non-Muslims. It is obvious; therefore, that such an institution cannot be created as
Wakf.
6. The plaintiff says that similarly, the then institution of History of Medicine
and Medical Research, Jamia Tibbia Unani Medical College, Indian Institute of
Islamic Studies, were also registered societies run for purposes which did not fail
within the purpose contemplated by the Act. So far as the Ayurvedic Free
Dispensary and Unani Free Dispensary were concerned, they were merely
activities of Dawakaha Wakf and are not separate from it. Hamdard Research
Clinic and Nursing Home was an activity of Hamdard National Foundation (India)
and had nothing to do with the Dawakaha wakf.
7. The Dawakaha Wakf was renamed Hamdard (Wakf) Laboratories, in Delhi
and the other above named institutions are not wakfs under the Act, and could not,
therefore, be notified as wakfs under the said Act. The notification in question is,
therefore, illegal, without jurisdiction, and inoperative and if it is allowed to stand,
will seriously and adversely affect the wakf‟s interests of which the original
plaintiff was Mutawalli are interested in. The original plaintiff served upon the
defendants a notice dated 24.12.1971 under Section 56 of the Act, which was
received by (the defendant) on 27.12.1971 calling upon the latter to admit within
two months of the receipt of the notice by it that the Dawakaha Wakf Delhi, the
Hamdard Research Clinic and Nursing Home, Institute of History of Medicines
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and Medical Research, Jamia Tibbia Unani Medical College, Ayurvedic Free
Dispensary, Unani Free Dispensary and Hamdard National Foundation, were not
wakfs within the meaning of the Act and to delete the entries in the Delhi Gazette
and de-notify the said wakf and the institutions holding them and their properties,
declaring that they were not wakfs under the Act. The defendant failed to comply
with the notice.
8. The amendment to the suit states that subsequent to the filing of the suit,
developments took place such as a declaration dated 10.10.1985 made by the
original plaintiff, inter-alia, that the provisions in the Wakf deed dated 28.08.1948
relating to "Khandani Income" be modified/deleted. That declaration (dated
10.10.1985) was also confirmed by two separate declarations, both dated
10.10.1985, made by both sons of the original plaintiff. Six existing institutions,
namely, (a) Institute of History of Medicines and Medical Research; [b] Indian
Institute of Islamic Studies; [c] Hamdard Tibia College; [d] Hamdard College of
Pharmacy [e] Majeedia Hospital; and [f] Rufaida School of Nursing stood
dissolved and their assets and liabilities stood transferred to Jamia Hamdard,
Hamdard Nagar, New Delhi - 110 062 another society, registered under the Indian
Societies Registration Act, 1860, in April 1989. It is also stated that the (i)
Hamdard Research Clinic & Nursing Home, Asaf Ali Road, New Delhi, [ii]
Ayurvedic Free Dispensary, Karol Bagh, Delhi, and [iii] Unani Free Dispensary,
Village Badar Pur, Delhi, were closed. It is therefore, claimed that the Dawakaha
Wakf and all other aforesaid institutions were not wakfs.
9. For these reasons, the plaintiff seeks a decree against the defendant declaring
the Hamdard Dawakaha (Wakf) Delhi and the institutions and societies, viz.
Hamdard Research Clinic and Nursing Home, New Delhi, Institute of History of
Medicine and Medical Research, Jamia Tibbia, Unani Medical College, Delhi,
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Ayurvedic Free Dispensary, Karol Bagh, New Delhi Unani Free Dispensary,
Tuglakabad, New Delhi and Hamdard National Foundation (India) and their
properties are not wakf within the meaning of the Act the entries in the Notification
No. 3933/70 dated 12.12.70 published on 31.12.1970 are illegal ultra vires, null
and void.
The written statement
10. The Wakf Board (hereafter called "the Board") in its written statement-
which too was amended during pendency of the proceedings - contests the locus
standi of the original plaintiff to file and maintain the suit. The Board refers to the
background by which the impugned notification was issued, saying that the Act
was enforced in the Union Territory of Delhi on October 1, 1962. Pursuant to
Section 4 the State Government appointed a Wakf Commissioner to survey wakf
properties existing in the State on the date of the commencement of the Act. That
officer while surveying of wakf properties also made a survey of Hamdard
Dawakhana wakf and after making necessary inquiries submitted his report to the
State Government, under Section 4(3) of the Act, which was forwarded to the
Delhi Wakf Board under Section 5 (1) of the Act. The Board after examining the
report published it in the Official Gazette as enjoined by Section 5 (2) of the Act.
The Board also contests the maintainability of the suit, contending that only those
kinds of suits, as are mentioned under Section 6(1) of the Act, i.e. whether a
particular property specified a wakf property in a list of wakfs published under sub-
section (2) of Section 5 is wakf property or not, or the character of wakf (that is
whether any such wakf is a Shia Wakf or Sunni wakf are maintainable and not
otherwise. The present suit does not claim any of these reliefs.
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11. The Board also states that after enforcement of the Act in
Delhi, the original plaintiff, applied to the Board on May 18, 1964 under Section
25 of the Act for registration of the said Dawakhana Wakf that was duly registered
by the board on 5th December 1964. Furthermore, the Dawakhana Wakf paid wakf
fee/contribution to the Board under Section 46 of the Act. A total sum of `
43,940/11 was paid by the original plaintiff Mutawalli at different times till the
year 1967. Details of the amount received for the years 1964 to 1967, have been
averred in the suit. The Board also adverts to receiving a cheque for `13,871/76
but as the amount fell much short than what was due it was not cashed. Since then
nothing was paid by the original plaintiff Mutawalli nor was any statement of
accounts (as required by the Act) made available to the Board by the Dawakhana
Wakf to enable it to assess the wakf fee. For these reasons, the Board says that the
plaintiff is now is estopped from challenging the nature of the wakf and the rights
and powers of the Board and its statutory obligations under provisions of the Act.
The Board also contends that the suit is time barred.
12. The Board states that the objects of the Dawakhana Wakf are purposes
recognized by Muslim Law and are covered by the principles of the true teachings
of Islam as pious religious and charitable. While interpreting objects of the Wakf
the paramount consideration has to be whether or not any a particular cause of
charity falls within the ambit of Muslim Law and true teachings of Islam and in
doing so the said consideration cannot be bye passed and or overlooked. The Board
denies the plaintiffs‟ interpretation, of the Deed, and states that its text and the
document as a whole has to be seen, to discern its true meaning. It is argued that
the expression "pious, religious and charitable purposes" recognized by Muslim
Law have to be interpreted not narrowly and or in any restrictive sense but at a
broader level of interpretation and consideration having full regard to the true
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teachings of Islam. This appears to be the true intention of the founders of the
instant wakf. Any charitable cause beyond those fundamental conditions are not
within scope of the object of the wakf in question, and therefore all the activities of
the mutawalli of the said wakf are circumscribed by the said condition and he
cannot act in a manner beyond the said limit and condition. The plaintiff‟s
interpretation of the terms and objects of the wakf purporting to be enshrined in the
wakf deed are denied as incorrect. It is also averred that defined objects and
purposes of the wakf are only those purposes recognized by Muslim law and by the
principles of the true teachings of Islam as religious, pious and charitable. Any
deviation from those objects is impermissible contrary to the terms of the wakf.
The Mutawalli cannot transgress the said basic conditions. It is averred that the
wakf in the present case is a permanent dedication by persons professing Islam, of
movable and immovable property for purposes recognized by Muslim law as
pious, religious and charitable and as such it squarely falls within the ambit of the
Act.
13. The Board submits that the reference to Section 3 (g) of the Act is not
relevant. It states that return of capital investment in any activity or project cannot
possibly be construed as its income. Similarly while determining income of any
business concern due regard has to be given to all expenses incurred, in carrying on
the business activity. It is stated that the impermanence of a business concern
alleged by the plaintiff is of no consequence. The expression permanent has also to
be construed in a reasonable and rational manner.
14. The Board alleges that the Dawakhana Wakf or its subsequent acquisitions
made through its Quami Income are undoubtedly money belonging to and owned
by the wakf and constitute wakf property; the plaintiff‟s arguments to the contrary
are denied. It submits that all properties, whether movable or immovable, acquired
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through wakf funds and wakf income - quami income - and all investments made
from wakf income in any shape and form is wakf property, being additions to the
Wakf.
15. The Board avers that on 29.03.1962 the original plaintiff had made a
declaration that he had decided to refer quami income as Hamdard National
Foundation (India) and he had the said declaration published in part IV of the
Gazette of India, Simla in its issue of Saturday May, 5 1962 on page 89. It is stated
that according to the Wakf Deed, in this case "Quami Income" is wakf money, an
expression the plaintiff of his own volition changed to Hamdard National
Foundation (India). That being so, both expressions Quami Income and Hamdard
National Foundation (India) are synonymous and interchangeable and cannot be
divorced from each other. The Board says that this belies the assertion that the
Hamdard National Foundation (India) is a donee and beneficiary of the Quami
Income of Hamdard Dawakhana wakf. It is also stated that during the period 1948-
1962, according to the original plaintiff, the total Quami income accruing to the
wakf - Hamdard Dawakaha - was ` 58, 22,094/91. The correctness of the said
amount is not admitted by the Board, yet, it states that all the same the said sum
was admittedly wakf money.
16. The Board says that the original plaintiff changed the nomenclature of
"Quami Income" to Hamdard National Foundation (India) in 1962. It was out of
wakf funds that a plot of land on Asaf Ali Road, New Delhi was acquired and a
big three storied pukka building constructed upon. That building was furnished
with necessary modern equipments and furniture and was named as Hamdard
Research Clinic and Nursing Home. The said Nursing Home was created from
Quami income, later labeled as "Hamdard National Foundation (India)" which is
wakf money and is an acquisition of the Dawakhana Wakf and its part and parcel.
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The Board denies that Hamdard Research Clinic and Nursing Home are not
institutions established by Hamdard National Foundation (India) and denies that
they are a society and is only beneficiary of the Hamdard wakf. All the assets,
(moveable and immoveable and properties) that the Dawakhana Wakf held and all
investments that it was to make subsequently or shape as well as all such future
acquisitions made by it out of its Quami income was to be wakf property. It is also
averred that merely because the Mutawalli has the choice to associate others or
other institutions with him for management purposes, to administer the wakf
properties and its institutions such persons cannot assume the role of a different
entity. The Board contends that the Mutawalli has no authority and power to form
registered societies. The dual role of management is objected to as impermissible.
The managing agency of the Dawakhana Wakf cannot possibly become a donee
and or owner of the corpus of the wakf entrusted to it for management. The Board
denies that the Hamdard Research Clinic and Nursing Home is not wakf; it is part
of the Dawakhana Wakf. The various institutions named by the plaintiff, are parts
of the Dawakhana Wakf which has acquired and created them.
17. The Board concedes that after creation of the Dawakhana Wakf, Hakim
Hafiz Mohammed Saied Saheb migrated to Pakistan, and that his half share and
interest in the Dawakhana was declared Evacuee Property; and that later the
Dawakhana Wakf purchased the said evacuee share out of its Quami Amdani from
the Custodian of Evacuee property on 22.06.1950. The said half share thus become
an addition to and part of the Dawakhana and consequently, wakf property. For
these reasons, the Board contends that the Dawakhana Wakf is not entitled to the
reliefs it seeks.
18. In Suit No. 118/1972, filed by the Jamia Hamdard (originally known as
Institute of History of Medicine and Medical Research) the plaintiff, a society
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registered under the Societies Registration Act 21 of 1860 with its office at 2-A/3,
Asaf Ali Road, New Delhi, and a beneficiary under the Hamdard Dawakhana
Wakf Delhi, claims a declaration similar to the one sought by the Dawakhana
Wakf. Its objects are:
a. to promote medical education and research;
b. to study and promote the knowledge of history of medicine and to undertake
research thereof;
c. to undertake scientific appraisal of the principles and practices of the various
systems of medicines; and
d. to collaborate in kindred activities with other national or international
organizations with similar objects.
It is alleged that pursuant to those objects, the plaintiff had been enjoined to carry
out the following activities and functions:
(1) To provide, establish, maintain, control and manage educational
institutions, libraries, museums, herbariums, botanical gardens, drug
laboratories, research laboratories and workshops, hospitals, press,
publication divisions and bureau of information and all such other things as
may be necessary or incidental or conducive to the said objects;
(2) to provide funds for payment to students of educational institutions
and research scholars working in such laboratories or research development
workshops;
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(3) to employ such staff as may be considered necessary and to make
provisions for their service conditions, benevolent funds and contributory
provident fund or other superannuation benefits;
(4) to conduct magazines, periodicals, issue pamphlets and disseminate
information and further the aims and objects of the Society by means of
lectures and all other means;
(5) to solicit, obtain or accept subscriptions, donations, grants, gifts,
devices, bequests and trusts from any person, firm, corporation, trust or
institutions;
(6) to acquire by gift, purchase, exchange, lease or hire or otherwise
howsoever any lands, buildings, easements, gardens and any property -
movable or immovable - and estate or interest in furtherance of all or any of
the objects of the Society;
(7) to build, construct and maintain houses or other buildings and alter,
extend, improve, repair, enlarge or modify the same and to add to or repair
any existing building and to provide and equip the same with light, water,
drainage, furniture, fittings, instruments, apparatuses and appliances and all
other necessaries;
(8) to construct or otherwise acquire, lay out, repair, extend, alter,
enlarge, improve, immovable property belonging to or held by the Society;
(9) to accept and receive in any form whatsoever any cash, securities,
bond, debentures and immovable or movable property either unconditionally
or subject to any trusts created by a donor.
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(10) to print, publish and exhibit any books, pamphlets or posture
considered desirable for the promotion of the objects of the Society;
(11) to sell, manage, transfer, exchange, mortgage, demise, dispose of or
otherwise deal with any property whatsoever belonging to the Society.
(12) to borrow and raise money with or without security or on the security
of a mortgage, charge or Hypothecation or pledge over all or any of the
immovable or movable properties, belonging to the Society or in any other
manner whatsoever;
(13) to give loans, scholarships, freeships, prizes and monetary assistance
to students of the Society‟s institutions to help them in their studies;
(14) to pay out of the funds belonging to the Society all expenses
incidental to the formation of the Society and management and
administration of any of the foregoing objects, including all rents, rates,
taxes, outgoings and the salaries of the employees.
19. Suit No. 119/1972 was filed by the Hamdard National Foundation (India)
against the Delhi Wakf Board. This plaintiff ("the Foundation") is a society under
the Societies Registration Act 1860 having its office at 2-A/3, Asaf Ali Road, New
Delhi-1 and is a beneficiary of the Dawakhana Wakf. Its objects are:-
(1) to control and supervise proper utilization of the income of the
Foundation received from Hamdard Dawakhana (Wakf) Delhi as Qaumi
income and from any other body, person or concern, Indian or foreign, in
any form as aid, grant or bequests, with or without any conditions, to protect
and promote the interests of the society and to safeguard the rights,
privileges and interests of all those who derive benefit from the Society.
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(2) to promote, support and develop indigenous system of medicine and
medical science and their utility to mankind.
(3) to provide medical, educational, economic and all other sorts of aid to
the deserving persons and institutions for humanitarian service, general
welfare and charitable purposes.
(4) to collaborate and corporate with other institutions having similar
objects.
20. The foundation says that donations received from the Dawakhana Wakf and
amounts received from other sources were to be used by it for the above objects.
Pursuant to those objects, the Foundation is required to carry out the following
activities and functions:
(1) To establish and run a complete Research Institute for the reform and
development of the indigenous systems of medicines and medical science.
(2) To establish, develop, aid and run medical or tibia college, pharmacy
college, commercial and business management college for the education and
training in the field of medicine, pharmacy and other aforesaid subjects.
(3) to establish, develop, aid and run Charitable Hospitals and Clinics on
modern lines, where the destitute and others can be treated in accordance
with the indigenous systems of medicines.
(4) to establish, manage and run educational and training institutions of
all kinds and to aid those which are already in existence.
(5) to construct and to provide aid for the repair, maintenance, expansion
and improvement of schools, colleges, study and research institutes,
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laboratories, rest-hoses, wells, cisterns, places of worship and similar such
buildings and institutions for general public welfare.
(6) to publish and aid publication of any such books, pictures, maps or
other literature as is expected to benefit the country and the people.
(7) to extend monetary aid to orphans, destitute, travelers, research
scholars, authors and sufferers from calamities.
21. The Foundation avers that certain events occurred, subsequent to the filing
of the suit. This was that the then existing Hamdard Research Clinic and Nursing
Home at Asaf Ali Road, New Delhi, being run by the plaintiff-society, stood
closed in the year 1982.
22. In Suit No.116 filed by the Indian Institute of Islamic Studies against the
(later known as "Jamia Hamdard") a declaration, as in the case of the Dawakhana
Wakf, is sought, i.e. that it is not a wakf. It is alleged that the Institute (Jamia
Hamdard) was a registered society with its office at Punchkuin road, New Delhi
and was a beneficiary of the Dawakhana Wakf Delhi. Its objects are:
(1) to promote the study of Islamic culture and civilization:
(2) to promote intercourse between scholars and institutions engaged in
Islamic studies in different countries;
(3) to conduct and provide facilities for research about the impact of
Islam on India and India‟s contribution to Islamic studies.
It is averred that donations received from the Dawakhana Wakf and other amounts
received from other sources were to be spent on the above objects, pursuant to
which the Jamia Hamdard‟s activities and functions extended to doing the
following: -
(1) to establish a library with facilities for research;
R.P. No.126/2010 in OMP 660/2009 Page 18
(2) to establish a museum of objects of Islamic arts;
(3) to acquire and preserve source-materials relating to Islamic studies;
(4) to provide residential facilities for scholars;
(5) to give financial assistance to scholars carrying on studies approved
by the institute;
(6) to publish monographs and research papers, edit manuscripts and
bring out periodicals, relating to Islamic learning, arts and sciences;
(7) to disseminate knowledge about Islam, Islamic culture and civilization
by organizing and facilitating study courses, conferences, symposiums,
seminars, lectures and research;
(8) to do all such other lawful acts, deeds or things as the institute may
consider incidental or conducive to the attainment of any of the objects of
the institute.
23. It is further alleged that the Jamia Hamdard is a registered society. It relies
on its Regulation No.43 (i) and (ii) which states as follows:
(i) On dissolution of the societies known as Institute of History of Medicine and
Medical Research, Indian Institute of Islamic Studies, Hamdard College of
Pharmacy, Hamdard Tibia College and Majeedia Hospital and transfer of Rufaida
School of Nursing from Hamdard Education Society which had been sponsored by
the Foundation, and are wholly or substantially funded through the said
Foundation, by the Dawakhana Wakf, all property movable and immovable, and
all rights, powers and privileges of the said Societies shall be transferred to and
vest in the Jamia and shall be applied to the objects and purposes for which Jamia
Hamdard is established.
(ii) All debts, liabilities and obligations of those societies stood transferred to
the Jamia Hamdard and were to be, thereafter, discharged and satisfied by it.
R.P. No.126/2010 in OMP 660/2009 Page 19
24. In the written statements filed by the Wakf Board, pleas similar to its
defence, in the Dawakhana Wakf‟s suit have been taken; it is urged that these
entities are entirely owned and set up by the said Dawakhana Wakf, and are its
agencies. They are beneficiaries of the said donor trust (Dawakhana Wakf) and
fulfill the objects set out by them; they are accretions to the said Wakfs property.
It is also alleged that in the character as beneficiaries, these societies and entities
are fulfilling the objects of the Dawakhana Trust, and themselves have objects
which fulfill the description of wakfs. In these circumstances, it cannot be said that
they are not wakfs; the relief claimed by them, are inadmissible, and the suits,
liable to be dismissed.
25. During the course of hearing this court, by consent of parties, framed the
following issues:
1. Whether Hakim Haji Abdul Hameed has no locus standi to file this
suit? OPD
2. Whether the suit of the plaintiff is not maintainable in view of the
provisions of Sections 5 and 6 (1) of the Wakf Act of 1954? OPD
3. Whether the plaintiff is estopped from challenging the notification of
the suit property as Wakf? OPD
4. Whether the suit of the plaintiff is time barred?
5. Whether Hamdard Dawakhana Wakf created on January 28, 1948,
Hamdard Research Clinic and Nursing Home, Institute of History of
Medicines and Medical Research, Hamdard National Foundation, Indian
Institute of Islamic Studies are not Wakfs within the meaning of the Wakf
Act, 1954? OPP.
6. Whether Hamdard Research Clinic and Nursing Home is the
beneficiary of Hamdard Wakf? If so, to what effect? OPP
R.P. No.126/2010 in OMP 660/2009 Page 20
7. Whether the properties of Hamdard Dawakhana Wakf, Hamdard
Research Clinic, Institute of History of Medicines and Medical Research,
Hamdard National Foundation and Indian Institute of Islamic Studies are not
Wakfs within the meaning of Wakf Act, 1954 or they are beneficiaries of
Hamdard Wakf? OP parties
8. Whether item No.63 of the impugned notification No.3533/70 dated
December 12, 1970 issued by the defendant under the Wakf Act is illegal,
without jurisdiction, ultra vires, null and void? OPP
9. Relief.
Issue Nos. 1, 2 and 4:
26. These three issues were framed at the behest of the Wakf Board; during the
hearing, its learned senior counsel, Shri. Sawhney did not press them; it was fairly
contended that the maintainability of the suits, on the grounds set out in these
issues, was not contested. These issued are therefore, held in favour of the
plaintiffs, and against the defendants.
Issues 5,6, 7 and 8
27. These issues are to be considered together because they go into the heart of
the dispute between the parties. As noticed in the previous portion of this judgment
the Dawakaha Wakf was created by the deed subscribed to by the original plaintiff
with his mother and brother (Hakim Haji Abdul Hameed Saheb, his brother Hakim
Hafiz Mohammed Said and mother Mst. Rabea Begum Saheba). Hakim Hafiz
Mohammed Said- the brother was declared an evacuee by the Custodian‟s order
(dated 1.8.1949) and Mst. Rabea Begum Saheba died on 9.10.1949. Hafiz
Mohammed Said‟s share (i.e the evacuee‟s share) was subsequently purchased by
Dawakaha Wakf. The third settler (Mst. Rabea Begum‟s share) devolved, upon her
death, on the sole surviving settler i.e. Wakif Mutawalli, the original plaintiff.
R.P. No.126/2010 in OMP 660/2009 Page 21
28. Both the parties have relied upon different parts of the deed of 1948, to say
whether the intention of the original settlers was to create a trust or a wakf, within
the expression as understood of Mohammedan Law. Mr. Shanti Bhushan and Mr.
Seth on behalf of the plaintiffs urged that the concept of Wakf implies perpetual
dedication of property or asset, with the objects that are consistent with concept of
charity in Muslim Law. It was submitted that under the 1954 Act, there are three
categories of Wakf; the third category was the "Wakf - Alal and Aulad"- the
category defined by Section 3 (1). It requires donation of property for any purpose
recognized by Muslim Law as pious, religious or charitable. A great degree of
emphasis was placed upon the circumstance that this definition did not undergo
any change despite the amendment made to the Act subsequently in 1962 which
had enlarged the scope of term "beneficiary" under the Wakf Act. Learned
counsel argued that the use of the terms "Wakf" in the Deed of 1948 is not
conclusive of the matter because it is now well settled that nomenclature of
documents or contracts are not conclusive; what the Court has to examine is to
consider the substance or the contents of the document and decide whether the
nomenclature is descriptive or what it intends something else. It was submitted
that mere use of the expression "Wakf" in the deed of 1948 is not determinative of
the question; the Court is under a duty to arrive at an independent conclusion after
having gone through the relevant recitals in that document as well as the effect of
its operative conditions.
29. Learned counsel placed strong reliance on the decision reported as Nawab
Zain Yar Jung & Ors. Vs. The Director of Endowments & Anr., AIR 1963 SC 985,
where it was held that the essential characteristics of a Wakf under Muslim Law , if
it were to be religious, it should be only for the benefit of members of Muslim
community and if it were to be secular charity should be to the poor alone.
R.P. No.126/2010 in OMP 660/2009 Page 22
Particular emphasis was placed upon the Supreme Court‟s view that public utilities
like schools, colleges or hospitals etc. by their nature could not be restricted to the
poor or Muslims alone. The court further held that in common law these were
recognized as public utilities which would qualify as Wakf despite non-Muslim
beneficiaries. However the Court added that definition in the Wakf Act excluded
those and did not confer benefit to non-Muslims and such public utilities therefore
could not treated as wakfs. The plaintiffs also relied upon the decision reported as
Coimbatore Athar Jamath Vs. Tamilnadu Wakf Board, 1987 (2) MLJ 438. It was
submitted that what weighed with the Court (in the Coimbatore Athar Jamath
case) was that even though the objects outlined in the scheme were pious, religious
and charitable yet the managing body had discretion to engage in other activities; it
also provided a fund for starting and maintaining industrial or technical institution
for imparting training to pupils of the Athar Jamath community or Muslim
communities in general. It was held that an outline of the provisions of the
scheme, the properties managed by that society could be considered as a trust but
did not constitute a Wakf within the meaning of that expression in law. The
judgment in The Karnataka Wakf Board Vs. State of Karnataka & Others AIR
1996 Kant. 55, was relied upon to say that without an enquiry, the Wakf Board
cannot designate a trust or an institution as falling within its ambit and supervisory
control. It was urged that in this case no enquiry was held and the definition
arbitrarily reported to the appropriate Government that the plaintiff‟s societies
were Wakfs, which lead to the issuance of impugned notifications.
30. Learned counsel also relied upon the Division Bench ruling in Kassimiah
Charities Rajagiri Vs. Madras State Wakf Board AIR 1964 Mad 18. In this case
the Court held that the nomenclature given in the concerned document would not
be decisive of the question whether the endowment would be under a Wakf,
R.P. No.126/2010 in OMP 660/2009 Page 23
Muslim law or under the Act or some other form of trust or charity. The Madras
High Court relied upon the judgment of the Supreme Court in Nawab Zain
case(supra) and held that a public utility foundation like a school or college
established by a Muslim in order to come within the fold of Wakf Act should be
exclusively intended for the benefit of the Muslims. In that case the school was
not meant to exclusively benefit members of the Muslim community and was held
not to constitute a Wakf.
31. It was argued that by clause 2(a) of the Deed (Ex. PW-1/2) in question, the
present case the Wakif or the Chief Mutawalli as the case may be, was conferred
with extremely wide powers such as to alter or change the conditions relating to
Mutawalliship and administration, for efficient working, and also to transfer, sell,
pledge, mortgage or alienate any properties belonging to the Wakf. His powers
extended to opening accounts, lending money, employing persons for the
functioning of the trust etc. It was urged by Clause (4) the Mutawalliship devolves
as in the case of proprietorship, i.e. by hereditary succession. Any male descendant
of the Wakif Mutawalli could be removed or denied the office only if he had
indulged in conduct or acts of misfeasance outlined in Clause-6. Learned counsel
further emphasized that by virtue of Clause 28 of the Deed even though the Trust
did not own any property, at a later point out if it did acquire any, the same could
not be dealt with except in accordance with the Deed.
32. Learned Senior Counsel highlighted that certain conditions in the deed such
as Clauses 27, 29, 31, 33 and 44 point to the fact that the Donors/Settlers of the
trust did not wish to create a Wakf and that the term was used in a very loose
manner. It was submitted that having regard to the true position in law, that Wakf
meant permanent dedication of some property to God with the object of achieving
those goals recognized by Muslim law as charitable, these conditions pointed to the
R.P. No.126/2010 in OMP 660/2009 Page 24
intention of the Trust or wakf running a business on commercial and profitable
lines which were intricate and entailed entering into contracts, having banking
transactions, purchasing shares, acquiring assets and making prudent commercial
or business decisions which extended to if necessary alienating or mortgaging the
assets of the business. This was wholly inconsistent with the objects of a Muslim
Wakf. Learned counsel emphasized that Clause 29 expressly empowered the Wakf
to protect itself against declining income from any property by providing for its
sale. It also enabled the Wakf to purchase alternative property and till such
arrangement was made, to deposit the money in a bank or any government
securities. Even the Mutawallis and functionaries in charge of the Wakf were
empowered to shut the business of Dawakaha Wakf by virtue of Clause 31 and in
case its income dwindled, and continuation of business became contrary to the
interest of the Wakf, instead to engage some other business.
33. Learned Counsel submitted that entire scheme outlined in the deed Ex.
PW1/2 revealed that under no circumstance could such a running business be
treated a Wakf; all that the settlers desired was to ensure that its income was used
for purposes regarded as charity within the meaning of law but not as charitable
objects within Mohammedan law.
34. It was urged in addition that the Hamdard National Foundation, Jamia
Hamdard and the Indian Institute were all independent bodies though created with
the donations of the Dawakaha Wakf. Learned counsel urged that there was
nothing in the objects or rules or regulations of each one of these entities - marked
in the common trial as Ex. PW-5/P2, PW-5/P 16, PW5/P-10 and PW-4/4, showing
that any property or asset were dedicated permanently for objects considered
charitable in Muslim law. It was argued that Jamia Hamdard University is one
institution created for the purpose of providing education to all and not merely in
R.P. No.126/2010 in OMP 660/2009 Page 25
Islamic subjects or areas of special interest to the Muslim community. Similarly in
other areas such as medicine the beneficiaries of these bodies were not confined to
the only one section of general public but open to all. Moreover argued learned
counsel each of these bodies had functional autonomy and was free to secure
funding from third party source and donations. They had their own control and
administrative mechanisms and were not in any way connected with or dominated
by the Dawakaha Wakf. The mere fact that they were beneficiaries to some degree
did not mean that they themselves were Wakfs within the meaning of the Act.
35. It was argued by Mr. Shanti Bhushan that the Deed Ex.PW1/2 further
disclosed that all kind of assets such as building, tenancies, business, goodwill and
even trademarks had been made over to the Wakfs. It was submitted, by placing
reliance on the definition of "property" (from Words & Phrases (Permanent
Edition) Page 288) that the expression means something tangible, visible and
cannot be said to extend -having regard to the exposition of Muslim law, to include
intangible attributes such as goodwill and trademarks. It was emphasized that
concept of Wakf did not attempt dedicating business entities - fluid since they
implied flexibility of capital utilization and considerable flexibility in the use and
operation of assets as the subject matter of trust. Learned counsel emphasized that
the objects spelt out in Clauses 44 to 46 of the Deed Ex. PW1/2 ruled out the
Donor‟s intention of creating a wakf. It was submitted that the objects in these were
widely spelt out and included all manner of activities meant to benefit all sections
of general public, though they were charitable within the meaning of taxation law
or even could be regarded as objects of trust generally, they could not be regarded
as Wakf within the Muslim law; they were trusts, which could be created validly.
36. Mr. Sawhney, Senior Counsel for the Wakf Board urged that the intention of
the original plaintiff and his family members, when they dedicated the business of
R.P. No.126/2010 in OMP 660/2009 Page 26
the Dawakhana Wakf, was to create a wakf within the meaning of Mohammedan
Law. It was urged that even though some portion of the income of the wakf was
kept for the benefit of the descendents (aulad), that condition too was done away
with, during the life time of the settler, i.e the original plaintiff. This clearly
demonstrated the charitable nature of the wakf. It was argued that even other-wise,
the decision in: Bibi Saddiqa Fatima vs. Saiyed Mohammad Mahmood Hasan AIR
1978 SC 1362 and Ahmed G.H. Arif v Commissioner of Wealth Tax, 1969 (2)
SCC 471, demonstrated that there was nothing inconsistent with the concept of a
wakf in Muslim law, if beneficiaries derived some advantage or income, as that
part too was considered charitable, if the dominant intent of the settlers, was to
create a wakf. These decisions were also relied on for the purpose of the
submission that a mutawalli or someone discharging his duties, by whatever name
called, despite possessing sweeping and wide ranging powers, is no more than a
Manager. There is consequently nothing inconsistent with his duties and status, as
mutawalli, if he is empowered to act in a manner consistent with a prudent
businessman, having regard to the larger interests of the wakf.
37. It was argued that terms and conditions in the deed Ex. PW 1/2 regarding the
powers conferred to the Wakif Mutwalli; were in conformity with the concept of
Wakf. In this regard, it was submitted that the object of Wakf is to permanently
dedicate the property or asset for objectives regarded as charities in Muslim law.
In the discharge of his legitimate opinion Mutwalli not only has the power but the
duty to guard such assets prudently and ensure that those objectives are fulfilled.
In this regard, learned counsel emphasized that various powers including power to
sell the asset or some portion of it in the event of distress or imminent loss are
those available to a prudent manager. They were not inconsistent with the
dedication being a Wakf. Learned counsel relied upon the decision reported as the
R.P. No.126/2010 in OMP 660/2009 Page 27
Bibi Siddque case (supra), learned counsel also relied on the decision reported as
Zubeda Begum Vs. Khurish Ahmad Hashmi 1997 (9) SCC 324, to say that a
Mutwalli is merely a Superintendent or Manager, and the founder of the Wakf can
appoint himself or his children and descendants or any other person, even a female
or non-Muslim as Mutwalli of the Wakf property. Reliance was further placed
upon the decisions reported as Mohammed Soleman Molla & Ors. Vs. Tasadduq
Hossain & Ors., AIR 1935 Cal 623; Mohammed S. Chamad Vs. Jainabi & Others
AIR 1926 Mad 861; Gazanfar Hussain Vs. Mt. Ahmadi Bibi & Ors. AIR 1930 All
169 and Khalil Ahmad Khan Vs. Malka Meher Nigar Begum AIR 1954 All 362
(FB) to say that a Wakif or the founder were entitled to prescribe the scheme for
administration of the Wakf for succession to office of Mutwalli or indicate the
class of persons or heirs who might assume such office and that the office of
Mutwalli can be hereditary if it is so provided in the Deed. Having regard to this
settled legal position, urged learned Senior counsel neither Clause 4 nor any other
condition can be construed as alien to the concept of Wakf in this case. Indeed
what is necessary for the Court to examine is the objective and the purposes for
which the dedication was made by the Wakif Mutwalli i.e. the original plaintiff in
this case.
38. Learned senior counsel for the Wakf Board further urged that dedication of a
portion of income or its reservation for family purposes is not inconsistent with or
does not change the character of a Wakf to secular trust; it continues to be a wakf.
In this regard reliance was placed on the decision reported as Sayyedali Vs. A.P.
Wakf Board, 1998 (2) SCC 642, Fazal Sheikh Vs. Abdur Rehman & Others, AIR
1991 Gau 17, Hazi Adbur Rahim Vs. Naraindas AIR 1923 PC 44; P.G.
Venkataswamy Vs. Mir Zahid Hussain Saheb (Sha) & Ors. AIR 1973 Mys 145
R.P. No.126/2010 in OMP 660/2009 Page 28
(DB), particular emphasis was placed on the Privy Council decision in Hazi Abdur
Rahim (Supra) where it was stated that:
"in the present case there is dedication, which has already taken effect, and
it does so substantial that one half of the net income has to be devoted to
specified pious purposes. It is impossible to say that this gift is only a veil to
cover arrangements for the aggrandisement and the settlor‟s family and a
device to make the property inalienable, the most that can be said is that the
provision for the settlor‟s family is considerable, for the mere supervision
itself is clearly permissible, as is the provision that the settlor‟s heirs shall
be the Mutwallis of the Wakf in their order....."
39. It was argued on behalf of the Wakf Board that the change brought about in
the definition of a term "beneficiary", has rendered the previous decisions about
the scope of the Wakf inapplicable. In this context it was argued that law existing
prior to the introduction of the Wakf Act 1954 by which the benefits (of the Wakf)
were confined only to the Muslim community, has been changed; now the
beneficiaries can be Muslims as well as non-Muslims as long as the public and
charitable nature of the Wakf is proved. Therefore, providing for schools in which
all alike are given education; establishing hospitals in which treatment is given
without discrimination; establishment of lodging houses and piyos (places where
water is offered free of cost) where the benefit is reserved to all alike are all
considered charitable objects constituted with a Wakf‟s objects in Muslim law.
The only narrow category where the object or dedication cannot be said to be Wakf
is the establishment and maintenance of a religious institution which does not
propagate Islam. Except such category of dedication, all charitable objectives
where the benefit flows to human kind generally, would be consistent with the
concept of Muslim Wakf. Learned counsel stressed on the definition of
"beneficiary" and relied on the decisions reported as Faqruddin Vs. Tajjudin
2008(8) SCC 012, Qassimiah (supra) Kachchh Wakf Board Vs. Kachchh Jamat
1988 (1) GLR 487. Learned counsel relied the decision reported as Faqruddin
R.P. No.126/2010 in OMP 660/2009 Page 29
(Supra), the Supreme Court held that Wakf implies taking something out of one‟s
ownership and passing it on to God‟s ownership dedicating its usufruct - without
regard to indigence or affluence, perpetually and with the intention of obtaining
Divine pleasure - for persons and individuals, or for institutions or mosques and
graveyards, or for other charitable purposes. It was urged that having regard to this
statement of law, the objects spelt out in Clauses 43 to 46 of the deed in the
present case Ex. PW 1/2 clearly are spiritual and temporal not restricted to any one
community meant for the benefit of all. They are consistent with the concept of a
valid Wakf.
40. Learned Senior Counsel next argued that in the present case deployment of
Dawakhana Wakf‟s income to achieve the objectives spelt out in the Deed Ex. PW
1/2 has resulted in creation of several other institutions. Each of this no doubt had
their own management structures and their own objectives. Some of them also
owned property yet on a fair application of law declared in Bibi Siddique (supra) to
shows that such property or asset acquired or created with the aid of Wakf income
directly out of usufruct, amounts to accretion to the Wakf itself. Learned counsel
argued that it is not necessary in this context to part with or sell any specific
property or part of the property of the Wakf. In this case, it was enough that
income derived from the Dawakhana Wakf‟s activities in the fulfillment of its
objectives was used to create assets. They became properties or assets of the Wakf
itself.
The Wakf Deed
41. Before discussing the rival merits of the case, it would be necessary to
consider the recital, and terms and conditions of the Deed in question in this case,
i.e Ex. PW-1/2. They are discussed in the following paragraphs.
R.P. No.126/2010 in OMP 660/2009 Page 30
Recitals
42. The initial recitals of the deed mention how the Dawakhana was established
in 1906 and went on to progress even after the death of the original founder on
22.06.1922. It also mentioned that all claims and disputes relating to religious
rights and inhabitants were settled, and properties acquired from the income of the
business were in proportion to their accrued rights in the ownership of the
Dawakhana. The recitals clarified that some of the immovable properties derived
from the income from the Hamdard Dawakhana business were occupied by the
Dawakhana and expressly stated that
"Nevertheless, whatever immovable property are being used by the
Hamdard Dawakhana, their relation to the said business is not such as
cannot be separated from it, that is, even on our retaining as before the
ownership rights in respect of the said immovable properties which are in
the occupation and use of the business of Hamdard Dawakhana, we have
every rights, according to law and Shariat, to transfer the said business of
Dawakhana or any specific or demarcated part thereof."
43. The recital further stated that the original founder‟s intention to start the
Hamdard Dawakhana was not merely to benefit himself but to reform and develop
the indigenous system of medicine and its medical pharmacopoeia, and the
medical, educational and social relief and aid of the deserving people in the
country. It stated that services of medical science and object of charity had always
received full recognition in the hands of the original founders of the Dawakhana
during his lifetime and later by the Settlers. The recital further stated that the
settlers being mortal would eventually leave the world, thus expressing that the
objects of Dawakhana would remain uncertain and, therefore, with the sincere
desire that sufficient funds ought to be available for publicity, charity and relief to
further the original objects which were not be to allowed to be deviated, the Deed
was executed.
R.P. No.126/2010 in OMP 660/2009 Page 31
44. In the initial part of the dedication, the executants/settlers expressed the
intention of serving humanity and advancement of charity and attaining God‟s
approbation; they also dedicated
"as Wakf for all times to God Almighty subject to the terms, conditions and
objects contained in this Wakf-Deed, the business of Hamdard
Dawakhana."
The business was valued at ` 5,00,000 as per the balance sheet as on
31.12.1947. The settlers stated that they had taken-up the business and property
"out of our control and possession and have delivered the control and
possession of God Almighty - the real owner."
45. The executants/settlers disclaimed any further rights of ownership or its
possession in the business of Hamdard Dawakhana which related to the Indian
Union except the rights of Mutawalli Sahib, administration of Wakf and derivation
of benefits as per rules in the deed. The recitals also stated that
"Neither we, the Executants, nor our heirs and legal representatives shall
have any right, power or authority to cancel or impugn the validity of this
Wakf or to go behind the basic objects of the same. However, we the
Executants 1 and 2 jointly during or life time and on the death of one of us,
the survivor alone, shall have full right to make at his or their discretion
suitable alterations in the conditions relating to the duties of Mutawalli and
the administration of the Wakf including the appointment of Mutawalli and
empowering them to exercise the powers exercisable by Wakf
Mutawalli....."
46. The Wakf Deed, by its subsequent amendments noticed the demise of Ms.
Rabea Begum in 1949 and that Hakim Mohammad Said was declared as evacuee
and his share was taken by the Custodian of Evacuee Property, which was
purchased by the Wakf‟s Qaumi Income (Charity) on 22-06-1960 and merged with
the Qaumi income since then. In view of this, the original plaintiff became the sole
surviving Wakif Mutawalli with all rights, powers and duties. The recital also
R.P. No.126/2010 in OMP 660/2009 Page 32
stated that the benefit contemplated in the deed was the 1/4 th share in the properties
of Dawakhana business, as reduced by the 1/8th meant for reserved fund for the
family of settlers in the form of "Khandani Income" in the ratio of 7:7:2 for the
original plaintiff, Hakim Mohammad Said and Mst. Rabea Begum. The latter‟s
share on her death devolved on the other two settlers, who came to enjoy equal
rights in the residue of the said 1/4th income. With the purchase of Hakim
Mohammad Said‟s share from the Custodian of Evacuee Property by the Qaumi
Income, the benefit to settlers‟ families stood reduced to 7/64 share of the total
profits of the Wakf, for the branch of the original plaintiff/sole Wakif. The
amendment to the Deed also stated that no Khandani Income would exist during
the lifetime of the original plaintiff and nothing would be payable on that account.
Of that Khandani Income, 7/64th share was to commence only after the death of
Hakim Mohammad Said, the original plaintiff. His children and grand children
would get nothing as Khandani income, but would receive remuneration for
services rendered so long as he was alive. It was expressly stated further that
"Wakif Mutawallis" and their successors would have no right of ownership or
power of disposition in the capital, the assets, the corpus and the properties of the
Wakf or any appreciation in its value or capital profits arising from which
exclusively belong to the charity
"having been irrevocably and perpetually dedicated for charity and
delivered and put under the control and possession of God Almighty."
Conditions of the Wakf Deed
47. Clause-1 spelt-out that there would be at least a minimum of one and
maximum of 5 Mutawallis, including Wakif Mutawalli and the Chief Mutawalli.
The senior most among the male descendants and the Wakif Mutawalli were to
hold the office of Mutawalli. After the Wakif Mutawalli ceased to be a Mutawalli,
R.P. No.126/2010 in OMP 660/2009 Page 33
every Chief Mutawalli had the same rights and powers of administration of the
Wakf and the power of making regulations. The Wakif Mutawalli had the power to
decide the remuneration of the Chief Mutawalli and other Mutawalli. After he
ceased to be a Wakif Mutawalli, the Chief Mutawalli enjoyed that right; in the case
of the remuneration of Chief Mutawalli, it was to be by the Majlis-e-Ayan.
48. Clause-2 reserved to the original plaintiff, the full rights, powers and
authority to manage all affairs of the Wakf property and the conduct of its business
as well as the right to appoint Mutawalli and decide upon their duties.
49. Clause 2(a) clarified the rights, powers and authority of Wakif Mutawalli in
regard to the management and business of the property except those upon which
restrictions had been imposed expressly in the Deed. They included all the powers
ordinarily exercised by a fully authorized proprietor or Managing Director or
General Manager of a business concern for efficiently carrying out a business on
modern commercial lines or for accepting and supporting such business or for
saving it from loss. The clause also forbade the right of any other person to
interfere or obstruct or restrict or exercise Wakif Mutawalli‟s power. It
indemnified him from damage or loss suffered or caused to the Trust which
occurred during the reasonable exercise of such duties in regard to management of
the affairs of the Trust. These powers included:
(a) appointment of employees, servants, agents, bankers, auditors etc. on
appropriate terms and remuneration, commission etc, indemnification or payment
of loss and damage a third party might suffer in respect of the services rendered to
the Hamdard Dawakhana
R.P. No.126/2010 in OMP 660/2009 Page 34
(b) Advancement of money through loans or allow credit to or obtain money
through credit from merchants, customers, brokers in the normal course of
business;
(c) Receive monies in advance or by way of security or trust from agents,
distributors, stockists, customers, etc. in the course of Wakf business;
(d) Opening post office or bank accounts in several names, depositing monies in
accounts, their withdrawal, transfer and doing everything connected with such
operation, including drawing negotiable instruments, and borrowing money;
(e) pledging or mortgaging any movable or immovable property of the Wakf as
security against loans required for the purposes of the Wakf, leasing or hiring its
properties on any terms;
(f) transfer, sale, pledge, hypothecate or encumber for the purposes of Wakf;
any of its securities, shares acquired by it and do all things to effectuate that;
(g) Acquire through purchase, hire-purchase, exchange, gift, mortgage or
otherwise, any movable and immovable property for the purposes of Wakf
business from Wakf funds;
(h) Get all kinds of documents executed and registered;
(i) file and defend suits, prosecutions and appeals and other proceedings in
Courts in relation to the business of the Wakf;
(j) With the object of developing and publicizing activities of the Wakf, to
render aid and assistance to all public activities and institutions and to invite
distinguished public men and officials to inspect the Wakf or in connection with
R.P. No.126/2010 in OMP 660/2009 Page 35
other functions and to pay out of the income the expenses incurred on account of
such invitations and functions.
(k) charging Wakf funds at his discretion with such expenses as were incurred
directly or indirectly to benefit the Wakf.
50. Some of the important contents of the dedications are discussed below.
Clause 4 sets out the scheme of succession to the office of the wakif and Chief
Mutawallis. The Wakif Mutawalli was the original founder; on his death or of the
Mutawalli(s) appointed as successors of the Wakif Mutawali subject to the
provision of Clause 5, the male descendants of the Wakif Mutawalli, then living,
had the right, in order of seniority, to be appointed as Mutawalli of the Wakf. Like
this, succession to Mutawalliship was to continue in the male line from generation
to generation. If there was no male successor in the direct line of succession fit to
assume charge of Mutawalli of the Wakf, then anyone from the male descendants
of the female issues being a rightful claimant, in succession could be appointed as
Mutawalli. Clause 6 set out the disabilities and disqualifications which rendered a
candidate to Mutawalliship ineligible; broadly it required a mutawalli to be a
major, not insane, sufficiently educated and experienced to discharge duties; he
was also required to be of sound health, so as to assume the responsibilities
required of the office. Insolvency, drunkenness, habitual indebtedness, conviction
of a crime involving moral turpitude were all disqualifications for appointment. If a
candidate had spent wakf income or used wakf property, in violation of its terms,
he was ineligible. Other conditions pertained to probity of the candidate while
functioning as an employee of the wakf.
51. Some of the other terms of the Deed are that:
R.P. No.126/2010 in OMP 660/2009 Page 36
"22. The rights of ownership of the Trade Name, Trade Marks, Patent
Formulate, Prescriptions and Processes of manufacture of medicines
evolved till 31st March, 1960 (Nineteen-sixty) have been divested (in their
entirety and absoluteness) irrevocably in favour of the Hamdard (Wakf) for
the benefit of charity only, as per Affirmatory Declaration given on the first
of April, 1960 (Nineteen Sixty) in respect of the Wakf-Deed. This absolute
and irrevocable divestment being philanthropic for the noble cause of
Qaumi Income of this Wakf, the Wakif Mutawalli has waived his right to
claim now or in future, nor shall, any of his heirs, nor beneficiaries under
the Wakf, have any right to claim from the Wakf, any royalty, rent or any
other kind of monetary benefit or consideration, this relinquishment being
absolutely free of charge, rent and royalty. The rights of ownership of any
trade mark, patent, formulate, prescription, process of manufacture of the
medicines evolved subsequently by the Wakf also vests and shall in future
too, always continue to vest in the Qaumi Income and all the benefits
accruing therefrom shall be exclusively for the benefits of Qaumi Income.
23. The Wakif Mutawalli, his successors, legal representatives or others
shall have no right to open any office, godown, chemical works or trading
institution for the purpose or manufacture and wholesale retail distribution
or sale of medicines in the name of Hamdard Dawakhana within the Union
of India or elsewhere or to interfere or obstruct in any manner with the use
and benefit which this Wakf is entitled to derive from the registered
trademarks of Hamdard Dawakhana and which have been conferred on the
Qaumi Income by virtue of this Deed.
*************** *******************
26. The immovable properties i.e. houses and buildings as described
below belonging to the three executants and in the ownership of which the
Wakf Business has no interest whatsoever, are with their consent, being
presently used and occupied by the Wakf-business. If the Wakf wishes to
continue hereafter their use and occupation as a tenant thereof, then its
tenancy shall be deemed to be effective from Ist January, 1948 under such
terms and conditions as the Wakif-Mutawallis being co-owners of the said
properties may during their life time arrive at any agreement with the
members of the Majlis-e-Awan and they shall be reduced to writing in the
form of a deed of lease. If after the death of the Wakif-Mutawallis, it
becomes necessary to amend or alter the terms and conditions of the
tenancy, only such terms and conditions shall be binding and effective as
R.P. No.126/2010 in OMP 660/2009 Page 37
may have been settled between the then owners of these properties and
MAJLIS-E-AYAN.
26. (1) The whole of the building used as retail shop by the Wakf-
business situate in Lal Kaun Bazar, Delhi bearing Nos.2242, 2236,
2237, 2239, 2240 Ward No.7.
(2) The whole of the building used as a godown, office and
chemical works, situate inside Katra Dina Beg Khan, Lal Kaun, Delhi
bearing Nos.2231, 1348, 1350 Ward No.7 excluding parts of the
houses bearing Nos.2231, 1350 which are presently in our occupation
as a residence and also exclusing other portion of house No.2231,
which is in the occupation of a tenant named Haji Abdul Shakur, Iron-
smith.
(3) The whole of the double-storyed building, used as Hamdard
Dawakhana Post Office and residence by the Assistant Physician of
the Dispensary, bearing No.969, Ward No.6, Lal Kaun Bazar, Delhi.
(4) A single storyed godown situate in Katra Dina Beg Khan,
bearing No.2238/1, Ward No.7, Delhi.
*************** *******************
28. Although no immovable property is presently included in this Wakf,
yet if subject to the terms and conditions contained in this deed, any
immovable properties hereinafter come to be included or attached to this
Wakf by means of purchase or exchange etc., neither the Mutawallis nor the
MAJLIS-E-AYAN nor the MAJLIS-E-AWAN shall have any right to alienate
or subject to any encumbrance or charge any such property in violation of
the objects, conditions and rules of this Wakf Deed. No Mutawallis of the
wakf of the Majlis-e-Ayan or the Majlis-e-Awan shall have any right to use
or spend any portion of the income or property, movable or immovable, for
the purpose or in any manner contrary to the objects, conditions and rules of
this Wakf-Deed. The person or persons, spending any portion of the income
of the Wakf any purpose which is illegal or unbeneficial from the point of
view of the wakf shall individually and collectively be responsible for
restoring the same to the Wakf.
29. If any of the properties, movable or immovable owned by the Wakf,
declines in value for any reason or there is serious apprehension of its
declining in value of the income from any property is reduced to such an
R.P. No.126/2010 in OMP 660/2009 Page 38
extent that it is contrary to the welfare and advantage of the Wakf or there is
danger of any of the Wakf property being waste or destroyed or any of the
immovable property owned by the Wakf is so old and dilapidated that it will
not be conducive to the benefit of the Wakf to spend money on its repairs or
the Wakf is not possessed of the sufficient funds to repair it or it is not
possible to acquire some other property which is better and more
remunerative than any existing property of the Wakf, movable or
immovable, without first disposing of the latter property, then the Wakf-
Mutawalli shall have the right to sell the said Wakf property and with its
sale proceeds or by means of an exchange, acquire some other property in
lieu thereof, which may be more useful and profitable for the Wakf. Till
some other suitable property is acquired in lieu of the property thus sold, the
money received from its sale shall be deposited in a scheduled bank or shall
be invested in some Government or Semi-Government Securities. In the
Wakif-Mutawalli during his term of Mutawalliship is unable to do the
property with the help of the Sale-proceeds thus realized, the office
Mutawallias succeeding him shall be bound to perform this duty to
acquiring by purchase or exchange some other property. If in regard to
transfer of any property the necessity and expediency referred to herein
arises after the Wakif Mutawalli has ceased to have Mutawalli, then the
succeeding Chief Mutawalli shall have the light power to transfer the said
Wakf property and acquire with the aid of the sale proceeds or any exchange
any of the property or properties and the property or properties so acquired
shall form part of the Wakf Property and shall be subject to the conditions
and rules of this Wakf Deed.
*************** *******************
31. If the Wakf-business of Hamdard Dawakhana continues to run at loss
for three years in succession and there does not appear any prospect of
sufficient profit thereafter or the total income from the Wakf-business is so
reduced that its continuance become inexpedient and contrary to the
interests of this Wakf, then the Wakif-Mutawalli during his terms of office
and after him the MAJLIS-E-AYAN shall have the power by means of an
Extra Ordinary Resolution to close down the above mentioned Wakf-
business or to change it into some other form or to start some other
profitable business in lieu thereof which is in keeping with the primary
objects of the Wakf.
*************** *******************
R.P. No.126/2010 in OMP 660/2009 Page 39
32. The restrictions imposed by the Deed on the transfer, sale and
purchase of the movable properties relating to this Wakf shall be deemed to
extend only to such of the movable properties as do not relate to the
commercial and trading activities of the Wakf-business i.e. the Mutawallis of
the Wakf and the Managers of the Wakf-business shall have full authority to
sell and purchase all those goods and articles which may be dealt with in the
course of ordinary trading and which may be required for use for the
business of the Wakf or to acquire such valuable securities, shares in limited
companies and other bonds or property, for the purpose of safe investment
of the cash or for temporarily safeguarding the same as may be permissible
under the law.
*************** *******************
32-A. The restriction regarding movable and immovable properties
mentioned in above clauses would not apply to the purchase, sale, transfer,
exchange, mortgage, hypothecation or creating of charge on properties,
assets, rights and effects held as business assets. Nor shall these restrictions
apply to the investment or utilization of the proceeds thereof.
33. Only that profit shall be treated as the net profit of the Wakf which
shall be derived from the business of the wakf and any other sources of
income of this Wakf, and calculated in accordance with the prudently drawn
up statements of accounts, as standing on the 31 st December, 1948 and
thereafter from year to year. In arriving at this annual net profit the
following points shall be specially kept in view.
(1) No such income shall be included in the net profits of this Wakf as: -
(a) comes within the definition of capital income;
(b) or forms part, directly or indirectly, of the income earned from
the amounts transferred to reserve Fund;
The income mentioned in (a) and (b) above shall belong to Qaumi
Income.
(c) or from which no deduction on account of any loss, business or
administrative expenditure which is paid or is liable to be paid, has
been effected. All amounts payable as remuneration to the Mutawalli,
the government or Semi Government taxes, expenses incurred for
repairs to the immovable properties and for recovery of rents and for
safeguarding the interests of the Wakf shall be deemed to be included
R.P. No.126/2010 in OMP 660/2009 Page 40
in the business expenses. The losses in the business and properties of
the Wakf shall also include depreciation and waste of machinery and
other articles or the diminution in the market value of the trading
stocks and other properties movable and immovable or the losses
which are likely to arise in future.
(2) To arrive at the net profits, the Wakf properties shall be valued either
at the cost price or at the market price or depreciated value whichever
is less and the lower of these prices will thus be entered in the
balance-sheet. If, however, the market price of any of the immovable
properties belonging to the Wakf suffers an extraordinary decline due
to some accidental or temporary causes, the effects of which are not
likely to last longer than one or two years, then in that case, the cost
price or depreciated price of the said property, whichever is lower,
shall be considered as its proper price and not its market price for the
purpose of determining the net profits.
(3) Whatever Government or semi-Government taxes are payable by the
beneficiaries of the "Khandani Income" of the Wakf in respect of the
income received by them from out of the net profits of the Wakf, the
same shall not be chargeable to the expenses of the Wakf and the
responsibility for payment of such taxes will rest on those
beneficiaries in the family and not on the Wakf. But the taxes payable
in respect of that income of the Wakf, which shall not be divided
amongst the beneficiaries in the family, shall be charged to the
expenses of the Wakf.
*************** *******************
40-A. The beneficiaries of the Khandani Income as per Shariat Law would
be collectively entitled only to a share of 7/64 of the divisible income of the
Wakf, and they shall have no right or claim whatsoever in the properties, the
corpus or the assets of the whole Wakf which have been irrevocably and
perpetually dedicated and delivered to the control of the God Almighty, the
real owner.
42. During the life time of Wakif Mutawalli there will be no Khandani
Income. He will be paid for the services rendered Rs.72,000/- a year or 7/64
of the net divisible profit whichever is less. The Khandani Income will arise
and become payable only after the death of Wakif Mutwalli as per shariat
law.
R.P. No.126/2010 in OMP 660/2009 Page 41
*************** *******************
44. The "Qaumi Income" of the Wakf i.e. 57/64 share of the divisible net
profits and any other income, profits and gains, earmarked for the purpose
of public charity and relief, shall be spent only within the territories of the
Union of India and only on objects of public charity which satisfy the
following two cumulative tests:
(a) They must be objects of public charity for the benefit of all persons
irrespective of caste, colour or creed, such as, relief of the poor, education,
medical relief and the advancement of any other object of general public
utility not involving the carrying on of any activity of profit, and
(b) They must be consistent with the principles of the true teachings of
Islam.
Provided, however, that in spending the income on objects of public charity,
priority shall be given to the collective needs of the country or to such needs
as may benefit the largest number of persons or their future generations.
45. Priority may be given to the following:
(1) To establish and run an Institute for the promotion of medicine,
education and research with emphasis on indigenous systems of medicine.
(2) To establish and successfully conduct a Tibbia College in conformity
with the recognized standards.
(3) To establish and run charitable hospitals and clinics where poor
patients are given free treatment.
46. Qaumi Income may also be spent on the following:
(1) To establish and run education institutions, and/or to aid those which
are already in existence.
(2) To build schools, laboratories, wells, or such other buildings of a
public nature as may benefit the largest number of people in the country.
(3) to publish books, pictures, maps or literature or to aid in publication
of the same by the publication of which the objects of the Wakf are fulfilled
or achieved.
R.P. No.126/2010 in OMP 660/2009 Page 42
47. Help may also be given to needy orphans, needy widows or helpless
persons, needy authors and research scholars and victims of unforeseen
calamities without restriction of caste, colour or creed."
52. The earliest authoritative pronouncement of what constitutes a wakf, may be
found in the following observations of the Privy Council in Vidya Varuthi Thirtha
Swamigal v Balusamy Iyer, AIR 1922 PC 123, that Wakf constitutes the
"tying up of property in the ownership of God, the Almighty and the
devotion of the profits for the benefit of human beings."
Ameer Ali, the renowned jurist, (in his work The Personal Law of Muhammedans)
described the origin of the wakf to the Holy Book, the Qur'an, and in the words
and deeds of the Prophet of God. The author referred to a well authenticated
tradition when Omer sought the Prophet‟s advice about a pious use of a piece of
land called Sammagh in Khaibar, when the Prophet remarked:
"Tie up the property and devote the usufruct to human beings and it is not to
be sold or made subject to gift or inheritance; devote its produce to your
children, your kindred and the poor in the way of God."
Tradition has it that Omer dedicated the property and the wakf continued in
existence for several centuries till the land became waste.
53. The law relating to establishment and management of wakfs, was, for long
administered by English courts in India, in accordance with opinion of textbook
writers and Islamic jurists on the issue. Thus "common" or unwritten law
pertaining to wakfs held sway. In the course of one of its judgments, the Privy
Council, held that dedication of property for family purposes could not be
characterized as wakf. This led to discontent, and consequently, the Wakf
Validation Act, 1913 was brought into force. That was the first legislative foray
R.P. No.126/2010 in OMP 660/2009 Page 43
into the subject. Having regard to the almost century old law expounded by the
Courts, Parliament codified the legal position, by enacting the Wakfs Act, 1954.
54. The relevant provisions of the Wakf Act are now discussed. Section 3(a) -
which defined a "beneficiary", before its amendment in 1964, read as follows:
"Benefiary means a persons or object for whose benefit a Wakf is created
and includes religious, pious and charitable object and any other object of
public utility established for this benefit of Muslim community."
After the amendment of 1964, the definition read as follows:
(a) " beneficiary" means a person or object for whose benefit a wakf is
created and includes religious, pious and charitable objects and any other
objects of public utility sanctioned by the Muslim law.."
By Section 3 (l), "wakf" has been defined in the following manner:
" 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;
(ii) 1[ grants (including mashrut- ul- khidmat) for any purpose recognised
by the Muslim law as pious, religious or charitable; and]
(iii) a wakf- alal- aulad to the extent to which the property is dedicated for
any purpose recognised by Muslim law as pious, religious or charitable;
and" wakif" means any person making such dedication;
55. The first authority on the question as to what is a "wakf" is the judgment of
the Supreme Court, in Nawab Zain Yavar Jung (supra) where it was held that:
"wakf" means any person making such dedication. Consistently with this
definition of "wakf", a "beneficiary" has been defined by Section 3(a) a
meaning a person or object for whose benefit a wakf is created and it
includes religious, pious and charitable objects and any other objects of
public utility established for the benefit of the Muslim community. It is thus
clear that the purpose for which a wakf can be created must be one which is
recognised by Muslim law as pious, religious, or charitable, and the objects
R.P. No.126/2010 in OMP 660/2009 Page 44
of public utility which may constitute beneficiaries under the wakf must be
objects for the benefit of the Muslim community.
*************** *******************
10. The Muslim character of the wakf is also emphatically brought out by
certain other provisions of the Act. The proviso to Section 15(1), for
instance, requires that in exercising its powers under the Act in respect of
any wakf, the Board shall act in conformity with the directions of the wakif,
the purposes of the wakf and any usage or custom of the wakf sanctioned by
the Muslim law. Similarly, Section 15(2)(j) lays down that the Board has
power to sanction leases of property for more than three years or mortgage
or exchange properties according to the provisions of Muslim law. Section
21 requires that there shall be a Secretary to the Board who shall be a
Muslim and he shall be appointed by the State Government in consultation
with the Board; and Section 13 provides that a person shall be disqualified
for being appointed a member of the Board if he is not a Muslim. There can,
therefore, be no doubt that the wakfs with which the Act deals are trusts
which are treated as wakfs under the definition of Section 3(1) and as such,
a trust which does not satisfy the tests prescribed by the said definition
would be outside the Act. This position is not disputed."
In Kassimiah Charities, the Madras High Court held that:
"Therefore public utility charities can come under the Act only if they
partake of the character mentioned in the Act i.e. if they are intended for
Muslims alone. For section 3 (a) says that a public utility in order to
constitute a valid object the Act should be intended exclusively for the
Muslim Community."
56. The significance of the change brought about by the amendment to the
expression "beneficiary", in 1964 was noticed in more than one judgment. For
instance, in Kachch Wakf Board (supra), the Gujarat High Court observed that,
after the amendment, the beneficiaries could be non- Muslims, so long as the
objects of dedication were consistent with the concept of a wakf:
"In this light, a Musafirkhana, if its dedication is for a religious purpose like
providing shelter to pilgrims or to those who are performing religious
R.P. No.126/2010 in OMP 660/2009 Page 45
ceremonies sanctioned by Muslim Law, may perhaps can have its
beneficiaries only members of Muslim community. But if on the other hand if
a property is dedicated as an amenity of general public utility or for
charitable purpose to utilise its income for charitable purposes sanctioned
by Muslim Law, use of such amenity may not militate against its being a
Muslim Wakf. In other words unless it is made clear with what object
property is dedicated, it may not be possible to decide the exact nature of
dedication, even if it be presumed in favour of the appellants that it was after
grant of land was made to Kamruddin, he constructed the house and that
house is being used as Musafirkhana or Sarai Dharmshala, a place of abode
for wayfarers."
Similarly, in Miriam Bai (supra), in 1973, the Madras High Court observed as
follows:
"But the Wakf Act of 1954 has been amended by Act 34 of 1964 under which
the definitions of 'beneficiary' and 'wakf' have been amended by including
wakf sanctioned by the Muslim law as coming under the Wakf Act. In Syed
Edulla Saheb v. Madras State Wakf Board AIR 1966 Mad 429 Kailasam, J.
has held that the coming into force of Act XXXIV of 1964 amending the Wakf Act of 1954 will have to be taken into account and that the donation of an immovable property even though by a person not professing Islam. would be a wakf, if the other conditions are fulfilled. Thus the definitions as amended have retrospective effect and apply to the wakf in this case. In fact, the learned advocate for the appellant did not dispute the fact that if the charitable bequest created in this case is a wakf, it would come under the Wakf Act, though the beneficiaries of the wakf may include non-Muslims."
The office of mutawalli and succession to it, under the Deed
57. The scheme of management in the Deed in the present case, i.e Ex. PW-1/2 undoubtedly suggests that the right to administer the wakf devolved by succession, or inheritance; in the first instance, the original plaintiff was constituted as the wakif mutawalli; the line of succession to the organization was clearly demarcated. On the death of the wakif mutawalli -or of the Mutawalli(s) appointed by him- the successors were his male descendants, then living, in order of seniority. They had R.P. No.126/2010 in OMP 660/2009 Page 46 the right to be appointed as Mutawalli of the Wakf. The succession to Mutawalliship was to continue in the male line from generation to generation. In the contingency of no male successor in the direct line of succession existing being fit to act as Mutawalli of the Wakf, anyone from the male descendants of the female issue was constituted the rightful claimant to succession could be appointed as Mutawalli. Clause 6 set out the disabilities and disqualifications which rendered a candidate to Mutawalliship ineligible. The plaintiffs argue, and the Wakf Board resist- that the manner of succession is a pointer to the arrangement not being a wakf, but other species of trust.
All authorities are agreed - right from the decision in Nawab Zain Yavar Jung, onwards, that a mutuwalli is only a superintendent or manager of the wakf properties; they do not vest in him, in the manner known to other branches of law, such as in the case of Hindu endowments, or in the case of trusts. The question therefore, is whether any stipulation in the dedication or the deed, that a class of heirs or specific category of people, either by description, or family ties, as successors to the wakif mutuwalli, would militate against the arrangement being a wakf.
58. It has been recognized (Ref. Ruggham v Dhanno AIR 1927 All 257; Shaikh Mastan Sahib v Balarami Reddi AIR 1953 Mad 953) that a wakif mutuwalli possesses power, not only to appoint the first mutuwalli but also lay down the scheme for succession to that office; if he reserves the right of manangement of the trust to himself, he can appoint someone to the office of mutuwalli during his lifetime; he may nominate a successor by name, or indicate a class from which the appointment may be made. This power may extend to even nominating females as mutuwallis (Mohammed Bhai v Waziribi AIR 1947 Nag. 31). It has also been held that even if no provision is made in the wakf deed and a vacancy in the office (of R.P. No.126/2010 in OMP 660/2009 Page 47 mutuwalli) arises, the primary right to appoint a successor is that of the wakif, and failing him, that of the executor; it is not of the court (Ruggham v Dhanno supra). In the light of these clear authorities, it is held that the provisions in the Deed (Ex. PW-1/2) which require succession to the office of Chief Mutuwalli and Mutuwalli from amongst the male heirs of the Wakif Mutuwalli, does not militate against its being a wakf, if it otherwise fulfils that description.
Is provision for heirs as beneficiaries, inconsistent with the concept of wakf
59. Some deal of argument was made by the parties, in the light of the plainntiff‟s submission that the intent of the original settlers was to provide for both charity as well as benefit to their heirs. It was emphasized that originally, 3/4ths of the income of the wakf was reserved to fulfil the general objectives; the remainder, 1/4th was reserved for the benefit of the heirs and successors. This proportion changed considerably. The contention was that having regard to the original intent, the reservation of a sizeable quantum for benefit of the heirs and the family meant that the arrangement was not a wakf.
60. This court is clear on this aspect. The issue again, is no longer open for debate; in Bibi Saddiqa Fatima (supra) it was held that:
"It is further indisputably clear from the waqf deed that except a portion of money which was to be spent for public, religious or charitable objects the waqf was primarily of a private nature for the benefit of the settlor's family and their descendants, which is called wakf -alal-aulad. The ultimate object of the wakf was to spend income, if any, in the service of the Almighty God. In Abdul Fata Mahomed v. Rasamaya 22 Indian Appeals, 76 their Lordships of the Privy Council held that the gift to charity was illusory, and that the sole object of the settlor was to create a family settlement in perpetuity. The waqf of this kind was, therefore, invalid. This decision aforesaid caused considerable dissatisfaction in the Mohamedan community in India. This led to the passing of the Mussalman Wakf Valildating Act, 1913 which was R.P. No.126/2010 in OMP 660/2009 Page 48 made retrospective in operation by a subsequent Act of 1930. In view of the Valildating Act of 1913 the validity of the wakf was beyond the pale of challenge.
13. Although in respect of the law applicable to waqfs there is some difference in regard to some matters between the Shia law and the various other schools of Mohamedan law applicable to Sunnis, in very many fields the law is identical. After the Valildating Act of 1913, on the basis of the law as it prevailed even before, creation of a waqf for the purpose of the maintenance of the members of the waqif's family and their descendants is also a charitable purpose."
This position was again reiterated, in Trustees of Sahibzadi Oalia Kulsum Trust v The Controller of Estate Duty 1998 (6) SCC 267, thus:
"Ameer Ali explains the position in Mahommadan 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 (pages 296-297).
10. Asaf A.A. Fyzee in his book "Outlines of Muhammadan Law", Fourth Edition at page 303 states that according to the ancient texts, wakfs for the support of a man's descendants and family were considered to be proper and lawful. He says, " The Prophet is reported to have said that 'When a Muslim bestows on his family and kindred, hoping for reward in the next world, it becomes alms, although he was not given to the poor, but to his family and children.' What in the estimation of the English lawyers would be a pernicious perpetuity, calculated to aggrandize the family of the founder, is, according to the shariat, the best of charities." The position in Islamic Law R.P. No.126/2010 in OMP 660/2009 Page 49 is summed up by Fyzee at page 303 by quoting the words of Ameer Ali:
"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 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 bestow on the indigent stranger. And this is insisted upon so strongly that when a walf 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 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 abadat or worship, to use the language of the Jawahir-ul-Kalam-an act by which kurbat or 'nearness' is gained to the R.P. No.126/2010 in OMP 660/2009 Page 50 Deity, according to the Bahr-ur-Raik."
61. In the light of the above discussion, it is held that provision in the Deed PW- 1/2, for the benefit of the heirs of the wakif Mutuwalli, or the original settlers, does not ipso facto militate against the arrangement being a wakf.
Benefit flowing to all sections of the community
62. The pre-existing law, i.e before the amendment of 1964, in respect of what were beneficiaries limited to religious purposes, and other objects of "public utility established for this benefit of Muslim community." It was while interpreting that state of law, that the Supreme Court, in Nawab Zain Yavar Jung, held that if the objects comprehended benefits (of the wakf) flowing to non-Muslim, or constituting secular purposes, the arrangement would not be a wakf. This was sought to be done away by the amendment of 1964, when the definition of "beneficiary". Now, the expression means "...pious and charitable objects and any other objects of public utility sanctioned by the Muslim law."
63. In Mariambai (supra) the question was whether a valid Wakf under the Act 1954 had been created under a compromise decree in a suit for administration of the estate of deceased S.M. Zacharia. In terms of the compromise decree two brothers of Zacharia were to hold suit properties for the purpose of constituting a trust to establish a maternity hospital in the name of Zacharia Sait. The question was whether the charitable trust created by and under the compromise decree was a wakf within the meaning of Act; as the benefit of the charity went not only to Muslims, but also to non-Muslims. The Division Bench of the Madras High Court after referring to the decision of the Supreme Court in Nawab Zain Yar Jung and R.P. No.126/2010 in OMP 660/2009 Page 51 the earlier decision in Kassimiah Charity cited the Amendment Act 34 of 1964 and ruled that the charitable trust was a „wakf‟.
64. A Division Bench of the Karnataka High Court in the Karnataka State Board of Wakfs (supra) had to consider the question of dedication by a Muslim woman of her house and the appurtenant vacate site for the use of residents of other places. The Court referred to the amended definition of „beneficiary‟ but relied upon the decision of the Supreme Court in Nawab Zain Yar Jung v Director of Endowment and held that a secular charity under Muslim law should be to the poor alone and since the property in this case dedicated for the travelers irrespective of religion and the position of the persons, it was not a wakf within the meaning of the Act. This court is of the opinion, with respect that that this decision since under the amended Act, there can be a dedication of a public character for the benefit of not only Muslims but also of non-Muslims and not only for the benefit of the poor but also for the benefit of the rich. What the Muslim law prohibits is a dedication exclusively for the rich.
65. The objects of the document Ex. PW-1/2, in this case include objects of public charity "for the benefit of all persons irrespective of caste, colour or creed, such as, relief of the poor, education, medical relief and the advancement of any other object of general public utility not involving the carrying on of any activity of profit...". The clause also says that the benefit should be "consistent with the principles of the true teachings of Islam." At the same time it clarifies that "in spending the income on objects of public charity, priority shall be given to the collective needs of the country or to such needs as may benefit the largest number of persons or their future generations..." Other objects include establishment and running an Institute for the promotion of medicine, education and research with emphasis on indigenous systems of R.P. No.126/2010 in OMP 660/2009 Page 52 medicine; establishment and conduct a Tibbia College in conformity with the recognized standards; establishing and running charitable hospitals and clinics where poor patients are given free treatment. Clause 46 provides that:
"46. Qaumi Income may also be spent on the following:
(1) To establish and run education institutions, and/or to aid those which are already in existence.
(2) To build schools, laboratories, wells, or such other buildings of a public nature as may benefit the largest number of people in the country. (3) to publish books, pictures, maps or literature or to aid in publication of the same by the publication of which the objects of the Wakf are fulfilled or achieved..."
The plaintiffs had urged, on the basis of the judgment in Nawab Zain Yavar Jung, that the secular nature of the objects ruled out the Deed creating a trust. As discussed earlier, the change brought about by the 1964 Amendment, which was noticed by the judgments of the Madras and Guajrat High Courts (in Miriam Bai and Kachch Wakf Board supra) makes it clear that inclusion of such general or temporal objects, intended as public utilities, does not militate against the dedication being a wakf.
Nature and object of dedication in the present case
66. It is thus clear - from the above discussion, that for a dedication to be a wakf it is not necessary that the benefit should flow only to Muslims, or a specific section of the community; as long as the object of the dedication is the performance of a task, or function, which is considered to be charitable, under Muslim law, and the property, asset or thing is permanently dedicated. Here, it would be essential to go into what exactly is a "permanent dedication". The Privy Council, in one of its earlier decisions, i.e Jewen Doss Sahoo v. Shah Kubeer-ood-
R.P. No.126/2010 in OMP 660/2009 Page 53 deen ((1840) 2 MIA 390) explained the significance of the word 'dedication' and observed thus:
"According to the two disciples, wakf signifies the appropriation of a particular article in such a manner as subjects it to the rule of divine property, whence the appropriator's right in it is extinguished, and it becomes a property of God, by the advantage of it resulting to his creatures. The two disciples therefore hold appropriation to be absolute, though differing in this, that Aboo Yoosuf holds the appropriation to be absolute from the moment of its execution, whereas Mahomed holds it to be absolute only on the delivery of it to a mutawalli, (or procurator,) and, consequently, that it cannot be disposed of by gift or sale, and that inheritance also does not obtain with respect to it ...'Bestow the actual land itself in charity in such a manner that it shall no longer be saleable or inheritable.'"
67. For the creation of a valid wakf , there should be (1) permanent dedication or "tying up" perpetually, (2) to God Almighty (3) of some property (4) for attaining Divine pleasure (5) the objectives of the wakf being charitable, consistent with Muslim law.
68. The previous discussion would reveal that on the heart of doctrine of Wakf - derived from the sayings of Holy Prophet was the idea of dedicating something for a specific or specified objects to achieve divine pleasure. For some time there was a cleavage of opinion between various High Courts whether moveable property including money could be the object of a valid Wakf. The High Courts of Calcutta, Bombay and Madras (Kulsoom Bibi Vs. Ghulam Hossain 10 CWN 449; Fatima Vs. Ariff Ismail Jee, 9 CLR 66; Fatima Bai Vs. Ghulam Hossain 9 Bom LR 1337) held that Wakf of moveables was invalid unless it was an accessory to immovable property or unless it was proved Wakf of movables was allowed by custom. The Allahabad High Court on the other hand (Hazi Amir Ahmed & Anr. Vs. Mohammad Ezaz Husain & Anr. AIR 1936 All 15, Muhammad Ismail & Anr. Vs. Muhammad Ishaq & Ors., AIR 1921 All 224) held that Wakf of movables was R.P. No.126/2010 in OMP 660/2009 Page 54 valid though Wakf of mesne profits apart from the land was invalid. The authorities however, appear to be uniform that Wakf of money simplicitor was not valid if it were not a dedication of a permanent nature. Therefore a Wakf of a simple money decree was not considered valid (Ghulam Mohuddin Vs. Abdul Rashid AIR 1947 All 137). Similarly Wakf of the unpaid dower of a widow was not held to be valid in Nosh Ali & Ors. Vs. Shamsunnesa Bibi & Anr. This controversy has now been settled by the Act which has permitted Wakf of any property, even of movable property (refer to Section 2 (l) which states that Wakf can be "of any moveable or immovable property"). There is some authority to the effect that there should be no uncertainty in the subject of the Wakf and that anything which is indistinct or unspecified - as the subject matter of dedication would not be valid. In this regard, it would be useful to notice that B.R.Verma‟s commentaries on the Mohammedan Law (9th Edn. 2005) Section 221 Para 8 reads as follows :
"There should be no uncertainty in the subject of Wakf. The Wakf of anything which is not ayn or distinctively specified (but is of deyn or indeterminate things) is no valid."
69. The author refers to Baille‟s Digest of Mohammedan Law Para 2, (1869) in this regard. Similarly, the jurist and former Chief Justice (of India) Mohd. Hidayatullah, in his Mulla‟s Principles of Mohammedan Law 9th Edn 1990 says this in para 175 :
"175. Subject of wakf. - The subject of wakf under the Wakf Act may be "any property." A valid wakf may, therefore, be made only of immovable property, but also of movables, such as shares in joint stock companies, Government promissory notes, and even money (j) Abdulsakur v. Abubakkar (1930) 54 Bom.358, 369-370, 127 I.C. 401, (‟30) A.B. 191. Cf. Syed Ali Zamin v. Syed Akbar Ali Khan (1937) 64 I.A. 158 (a Shia case); Sattar Ismail v. Hamid Sait (1944) 2 M.L.J. 92. (‟44) A.M.504.
R.P. No.126/2010 in OMP 660/2009 Page 55 In case before the Wakf Act, there was a conflict of opinion whether a valid wakf could be made of movables. It was held in Calcutta, Bombay and Madras, that a valid wakf could not be made of movables, unless the movables were accessory to immovable property, such as cattle attached to agricultural land and implements of husbandry, or unless a wakf of movables was allowed by custom (k) Kulsom Bibee v. Golam Hossein (1905) 10 Cal. W.N.449; Fatmabai v. Gulam Husen (1907) 9 Bom. L.R.1337; Kadir Ibrahim v. Mahomed (1909) 33 Mad. 118, 4 I.C.136. This was in accordance with the view taken by Mahomedan jurists on the subject:
Baillie, 570-571; Hedaya, 234-235. On the other hand, it was held in Allahabad that a valid wakf may be made of movables, and that a wakf even of coins or shares in a joint stock company was not invalid (l) Abu Sayid v. Bakar Ali (1901) 24 All.190; see Hashim Haroon v. Gounsalishah (1942) Kar. 179, (‟42) A.s.137. Such a wakf would be valid under the Wakf Act. In a Privy Council case the question arose whether a valid wakf can be made under the Wakf Act of Government promissory notes, but it was not decided, as the wakf had been acted upon for a number of years and it was held valid on that ground (m) Mohammad Sadiq v. Fakhr Jahan Begam (1932) 59 I.A.1, 17-18, 6 Luck.556, 136 I.C. 385, (‟32) A.PC.13. It has been held that a wakf of a money decree is not valid, as the decretal amount may not be realized (n)."
In the recent work "The law of Wakfs - an analytical and critical study" (2nd Edn. 2008) S.K. Kadar a former Judge of the Madras High Court says this "Third Ingredient subject of dedication The property dedicated must belong to the settler at the time of dedication (Mashuddin V. Bullabah Das ILF (1912) 35 All 68; 17 IC 471; Mohammed Ali V. Dinesh AIR 1940 Cal 417. There can be a valid wakf of a property subject to a lease or a mortgage (Shahzadee v. Khaja Hussain (1869) 12 WR 498; Jinjira v. Md. Fakrulla AIR 1922 Cal 429; ILR (1922) 49 Cal 477; 67 IC 77). But a usufructuary mortgage cannot be the subject of a valid revert to the mortgagor on redemption and there is no permanency. (Rahiman v. Bagridan AIR 1936 Oudh 213; ILR (1936) 11 Luck 735; 160 IC 495; Abdul Qavi V. Asaf Ali AIR 1962 All 364). The Wakf of a house on a leasehold land and the lease is not permanent has been held invalid, in Mst. Peeran V. Hafiz Md. (AIR 1966 all 201). Where the lease is of a permanent character and the lease cannot be ejected from the land, the lessee is entitled to dedicate any building on such land. (Ameer Ali:; Mohommedan Law, 1985 Ed., Vol I, Page 267). A property in the possession of the Wakif under a contract for sale can be subject of R.P. No.126/2010 in OMP 660/2009 Page 56 a valid wakf, provided the sale is eventually completed. (Mst. Bismillah v. Muhammed Ali AIR 1927 Oudh 85).
Mushaab A Mushaa is an undivided share in property. There is a divergence of opinion among the original jurists as to the validity of a wakf of Mushaa. According to Imam Muhammed it is unlawful while according to Abu Yusuf the Wakf of Mushaa is valid. The accepted view is tht of Abu Yusuf. (Mohammed Badrul v. Shah Hasan AIR 1935 All 278, 1935 All LJ 400; 159 IC 37; Muhammed Ayub v. Amir Khan AIR 1939 Cal 268; 43 CWN 118; 181 IC 76).
Moveables Any property whether moveable or immovable may be the subject of a wakf. Shares in joint stock companies, Government Promissory Notes and even money can be the subject of a wakf. Prior to the Wakf Act there was a conflict of juristic and judicial opinion whether a valid wakf could be made of movables. According to Abu Hanifa and Abu Yusuf wakf of moveable property is altogether invalid. Imam Muhammed holds otherwise. The High Court of Calcutta (Kulsoom Bibi v. Gulam Hussain 10 CWN 449)".
70. The term "property" has in the context of other enactments, been given wide interpretation. The Supreme Court in Ahmed G.H. Ariff's case (supra) and Purshottam N. Amarsay v. CWT AIR 1973 SC 2335 held that even if an asset is non-transferable and un-saleable in the open market, (such as shares in an unlisted company) is yet capable of valuation, for the purposes of the levy of wealth-tax. Arif was concerned only with beneficial interest to get share of income from a wakf. Similarly, in Purshottam N. Amarsay 's case was concerned with the right to get income from Trust property which was a personal estate. This right was not transferable; yet the Supreme Court held it to be an asset. The Supreme Court in its decision in CWT v. Smt. Anjamli Khan 1991 Supp (2) SCC 681 held that intangible rights can be regarded as 'assets' in terms of the definition under the taxation laws (Income Tax and Wealth Tax Act). Therefore, right to receive compensation, right to receive shares and dividends, etc, are regarded as "assets" under taxation law. The recent decision of the Constitution Bench in K.T. Plantation v State of Karnataka 2011 (9) SCC 1 has held that "property" (in the context of the right R.P. No.126/2010 in OMP 660/2009 Page 57 under Article 300-A, i.e. right against being deprived of property without authority of law) has to be interpreted widely, and that it can include all manner of interests, including intangibles like intellectual property rights, etc.
71. One has to, at the same time, recollect that it is a settled principle of statutory interpretation that the meaning assigned to a term or phrase, in one enactment cannot be the basis for interpreting another enactment, containing the same term. In Gwalior Rayon Silk Manufacturer v Custodian Vested Forests 1990 Supp SCC 785 it was held that:
"Judicial interpretation given to the words defined in one statute does not afford a guide to construction of the same words in another statute unless the statues are pari materia legislations"
Msco (Pvt) Ltd v Union of India 1985 (2) SCC 51:
"In construing a word in an Act caution is necessary in adopting the meaning ascribed to the word in other Acts. "It would be a new terror in the construction of Acts of Parliament if we were required to limit a word to an unnatural sense because in some Act which is not incorporated or referred to such an interpretation is given to it for the purposes of that Act alone."
(Macbeth & Co. v. Chislett (1910 AC 220, 223 : 79 LJKB 376 : 102 LT 82 (HL))
5. When the word to be construed is used in a taxing statute or a notification issued thereunder it should be understood in its commercial sense."
Similarly, in State of Kerala v Mathai Vergese 1986 (4) SCC 746, upsetting the decision of the Kerala High Court which held that "currency" notes, for the purposes of the Indian Penal Code, meant currency as defined under the Indian Paper Currency Act, held that:
"The High Court also fell in error in being influenced by the definition of currency notes embodied in the Indian Paper Currency Act (Act 20 of 1822). The High Court has overlooked the obvious fact that definition contained in R.P. No.126/2010 in OMP 660/2009 Page 58 Section 2 of the said Act is only for the purposes of that particular Act and it cannot be imported into Sections 489-A to 489-E of the Indian Penal Code, as has been done by the High Court [Says the High Court : "The expression 'currency notes' in Section 489-A to 489-E should naturally refer to currency notes as defined in Act XX of 1822."].
9. The High Court was thus wholly wrong in exerting itself unnecessarily and bending backwards in order to hold that Section 489-A to 489-E are not applicable to currency notes other than Indian currency notes; and in holding that counterfeiting of or possessing of counterfeit dollar bills or dollar notes is not an offence under the Indian law, thereby issuing a carte blanche to the counterfeiters of the world to establish their headquarters within the State of Kerala with a view to carry on their activities with impunity under the umbrella unwittingly opened for them by the judgment of the High Court."
Upon a fair application of the above principle, the expression "property" has to be understood in the context of its setting, under the Wakf Act, having regard to its history, and the concept of wakf in Muslim law.
72. In this case, the intention of the Wakif Mutuwalli and the other settlers can be gathered on an overall reading of the recital, and the relevant provisions of the Deed Ex. PW-1/2. The recitals, undoubtedly mention that the settlers, to gain divine pleasure, are dedicating the subject matter of the wakf in perpetuity. The crucial matter however, is that the dedication and the subject matter is expressly described as follows:
"as Wakf for all times to God Almighty subject to the terms, conditions and objects contained in this Wakf-Deed, the business of Hamdard Dawakhana."
The distinction between the business being the object of the dedication, and the property, being used by the business, was studiously maintained. For instance, Clause 26 states that:
R.P. No.126/2010 in OMP 660/2009 Page 59 "..26. The immovable properties i.e. houses and buildings as described below belonging to the three executants and in the ownership of which the Wakf Business has no interest whatsoever, are with their consent, being presently used and occupied by the Wakf-business. If the Wakf wishes to continue hereafter their use and occupation as a tenant thereof, then its tenancy shall be deemed to be effective from Ist January, 1948 under such terms and conditions as the Wakif-Mutawallis being co-owners of the said properties may during their life time arrive...."
The said clause later goes on to describe what are the properties used by the wakf. Clause 28 provides that in the future, the wakf may acquire other properties, and in that event, its alienability would be regulated by the Deed. The relevant part of Clause 28 reads thus:
"28. Although no immovable property is presently included in this Wakf, yet if subject to the terms and conditions contained in this deed, any immovable properties hereinafter come to be included or attached to this Wakf by means of purchase or exchange etc., neither the Mutawallis nor the MAJLIS-E-AYAN nor the MAJLIS-E-AWAN shall have any right to alienate or subject to any encumbrance or charge any such property in violation of the objects, conditions and rules of this Wakf Deed."
Importantly, Clause 29 empowers the mutuwallis to dispose of any property of the wakf, if it reduces in value, or there is apprehension of its depreciation. The managers are empowered to buy some other property in its stead, and if that is not immediately possible, to invest the amounts in Government securities, at favourable terms, till such time other properties can be acquired. Clause 31, very pertinently says that:
"31. If the Wakf-business of Hamdard Dawakhana continues to run at loss for three years in succession and there does not appear any prospect of sufficient profit thereafter or the total income from the Wakf-business is so reduced that its continuance become inexpedient and contrary to the interests of this Wakf, then the Wakif-Mutawalli during his terms of office and after him the MAJLIS-E-AYAN shall have the power by means of an R.P. No.126/2010 in OMP 660/2009 Page 60 Extra Ordinary Resolution to close down the above mentioned Wakf- business or to change it into some other form or to start some other profitable business in lieu thereof which is in keeping with the primary objects of the Wakf."
The tenor of Clauses 33, and 44 is that the business activities of the wakf should yield "net profits" which are to be dedicated for the specified objects of charity. This is apparent from the repeated use of the expression "net profit" (Clause 31) and "divisible net profits" and "other income, profits and gains"(Clause 44).
73. It is thus apparent that the subject matter of dedication by the settlers (including the wakif mutuwalli) was pure and simple, business or commercial activity; even the properties used by that business were expressly kept away from the subject matter (of the wakf ). The question is whether a business enterprise, simplicitor - without the property used by it can be the subject matter of a Muslim wakf. If one understands the concept of a wakf correctly, it is the permanent dedication or tying up of something. Though that thing, may be an intangible like a trademark, or intellectual property, or the right to receive something (like right to compensation or dividend) an activity, and one as fluid as a trade or commercial activity, cannot be a thing, an object. In a country like India, where citizens and collectivities (such as religious denominations) have clearly spelt out fundamental rights, (Articles 19 (1) (g), Articles 25 and 26) to engage in trade, or business, or some form of income generating capability, the assignation of a business, with the choice of stopping or closing it down (in the eventuality of loss or depletion of income or profit) as the subject matter of a wakf can hardly be called as property. This is because every business or commercial activity, or enterprise carries within it the seeds of uncertainty; it is subject to viccitudes of the peculiar activity. Authorities in this regard are lacking; however, the discussion by Islamic scholars and jurists, seem to veer around to the opinion that "tying up" of the subject matter R.P. No.126/2010 in OMP 660/2009 Page 61 is essential for a valid wakf. Quoting Bailee (supra), the Bombay High Court, in its decision reported as Fatma Bibi v The Advocate General of Bombay & Anr 6 (ILR) Bom. 42, said that:
"A wakf must be certain as to the property appropriated, unconditional, and not subject to an option. It must too, have a final object which cannot fail and this object it seems, must according to the better be expressly set forth.."
Applying the proper test, on the basis of previous authorities, there can be no "tying" up of a commercial venture; in this case, the settlers have given sufficient flexibility to the managers, to even wind up the business, if it is unprofitable, or incurs losses. Profit, or sufficient income, appears to be the important element of the subject matter; the net profit has to be used for the objects. However, it is possible that for some time- may be even more than 5 years (ie period of 3 years as per clause 33, and another two years if a new business is established by the wakf) there is no income generated by the thing tied up, i.e the business. This situation can replicate any number of times, with failed or indifferent ventures, thus defeating the objects sought to be achieved, ie. the charitable objectives outlined in Clauses 44 and 45 of the Deed.
74. In view of the above discussion, it is held that the Dawakhana Wakf is not a wakf within the meaning of the term, under the Wakf Act, despite the use of the term "wakf" (which appears to be misleading). It is settled law that nomenclature of a document or deed is not conclusive of what it seeks to achieve; the court has to consider all parts of it, and arrive at a finding in regard to its true effect (Ref. Puzhakkal Kuttappu v. C. Bhargavi & Ors AIR 1977 SC 105 and Faqir Chand Gulati, Appellant(s) V. Uppal Agencies Pvt. Ltd 2008 (10) SCC 345). The question is whether such bodies and trusts can be validly created by Muslims. This precise R.P. No.126/2010 in OMP 660/2009 Page 62 issue was addressed by a decision of the Supreme Court, in Mohammed Khasim v Mohammed Dastagir 2006 Supp (10) SCR 1157 as follows:
"According to Mohammedan jurists, the term „Wakf‟ literally means dedication or as noted by Mulla in his "Principles of Mohammedan Law", the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by Mussalman law as religious, pious or charitable. The desire of Mohd. Imam Saheb to tie up the properties so that they would not be dissipated and the objects on which the usufructs of the properties were to be spent, most certainly appears to have influenced the thinking of the trial court in holding that Mohd. Imam Saheb had wanted to create a wakf. The said reasoning was not accepted by the High Court. However, the High Court also went wrong in holding that a valid trust had not also been created by the document of 29th February, 1960. In fact, while we agree with the High Court on the first count, we are unable to agree with the High Court on the second count. In other words, we agree with the High Court's finding that no wakf had been created by the aforesaid document but at the same time we are also of the view that it was Mohd. Imam Saheb's intention to create a valid trust.
22. 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 had to be God. Neither of the two above conditions are fulfilled by the document dated 29th February, 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 wakif. 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 properties worth Rs.8,000/-. 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.8,000/- 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 R.P. No.126/2010 in OMP 660/2009 Page 63 Fathima Bi or Asha Bi would also revert to the Trust if they had no male issues.
23. 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 would have ended the controversy that has now arisen.
24. 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. Secretary, Madras State Wakf Board AIR1964 Mad 18 . In the said case, while confronted with a similar question, the Division Bench observed that a Muslim can endow properties to charities either by adopting his favourite mode of creating a wakf or by endowing property conforming to the law of Trusts. The question whether a particular endowment amounts to a wakf under the Mohammedan Law or to a Trust as recognized by modern jurisprudence, will have to be decided primarily on a true construction of the document establishing the charity. However, it has also been stated in the said decision that vesting of a power of alienation by way of exchange or sale under the document creating wakf is not inconsistent with the document constituting a wakf under the Muslim Law. A dedication to a wakf will not, therefore, cease to be such merely because a power is reserved in the Mutwalli to exchange the wakf lands with other lands or to sell them and purchase other lands so that the lands so taken in exchange or by purchase, might become the subject of the wakf."
It is therefore held that the Dawakhana Wakf is not a "wakf" under the Act, even though it might be a valid trust.
Accretion R.P. No.126/2010 in OMP 660/2009 Page 64
75. The question which arises for determination is whether the other entities, i.e Nursing Home, the Institute of History of Medicines and Medical Research, Hamdard National Foundation, Indian Institute of Islamic Studies are wakfs within the meaning of the Wakf Act, and the Hamdard Research Clinic and Nursing Home is beneficiary of the Dawakhana Wakf and if that is so, what is the effect. These issues were framed at the behest of the defendant, the Wakf Board.
76. Now, it is a fact that there is some authority to the effect that if a body is a Muslim wakf, any acquisitions made out of its assets, to further its objects, would also become additions or accretions to the wakf itself. This was stated in Bibi Sadiqa Fatima (supra) in the following terms:
"True it is that the property was not acquired by the sale of the corpus of any of the waqf property but even acquisition of an immovable property directly with the waqf fund was an accretion to the waqf property. The Raja had no power while administering the waqf to acquire a property for a particular beneficiary by way of maintenance and support of such a beneficiary. As indicated earlier, a Mutawalli of a waqf although not a trustee in the true sense of the term is still bound by the various obligations of a trustee..."
Similarly, in Wali Mohammed v. Rahmat Bee, (1999) 3 SCC 145, the Supreme Court held that:
"Further, the house property covered by the gift deed Ex. B-1 was constructed in the graveyard and it was, as we shall presently show, meant to be used for religious purposes and therefore it became an accretion to the wakf property and bore the same character as the other properties in the compound in view of the principle laid down in Mohd. Shah v. Fasihuddin Ansari".
77. In this case, as held earlier, the Dawakhana Wakf is not a wakf, on an application of all the relevant tests. Therefore, the question of the Nursing Home, the Institute of History of Medicines and Medical Research, Hamdard National Foundation, Indian Institute of Islamic Studies being wakfs just because their R.P. No.126/2010 in OMP 660/2009 Page 65 properties were purchased out of the income of the Dawakhana Wakf, would not arise. Some of them, are in fact independent juristic entities, being societies, capable of, and in fact holding properties. In the case of registered societies, by virtue of Section 5 of the Societies Registration Act, 1860 the property, movable and immovable, belonging to it, if not vested in trustees, would be deemed to be vested in its governing body. This is completely contrary to a wakf, where the mutuwalli is a mere manager; the property is perpetually and irrevocably dedicated to God Almighty. Furthermore, each of the said bodies and entities is autonomous, and the Dawakhana Wakf is not the exclusive donor; it is one of the sources of grant. They can itself seek donations and grants from other institutions in furtherance of its objectives. Lastly, there is nothing in the deeds or instruments creating them, either in the Memorandum or Articles of Association, indicative of perpetual dedication, or its being in favour of the Lord Almighty, to obtain divine pleasure. In other words, the controlling instruments, or documents which have created these institutions, are singularly silent about the essentials elements which signify a wakf. The court therefore, holds that the said institutions are not wakfs, even though some of them are beneficiaries of the Dawakhana Wakf. The issues are answered against the Defendants, and in favour of the plaintiff.
78. In view of the above discussion, Issue Nos. 5, 6, 7 and 8 are held in favour of the plaintiffs and against the Defendant. The Dawakhana Wakf and the other plaintiffs are not wakfs; the properties of each one of them are not wakf properties. Consequently, the notification, declaring them as wakfs are unsustainable. The plaintiffs should not describe themselves as "wakf" in any manner, since that is misleading. It has throughout been the Dawakhana Wakf‟s case that it is not a wakf. Therefore, in fairness it should not call itself that. The plaintiffs are entitled to the declarations, but subject to these directions.
R.P. No.126/2010 in OMP 660/2009 Page 66 Issue No. 3- Estoppel
79. The next question which the court has to address, and which the parties are at issue on, is whether the suits are barred by the principle of estoppel. This issue was struck at the insistence of the Defendant Wakf Board; it contended that after the enforcement of the Act in Delhi, the original plaintiff, applied to it (the Board) in 1964 under Section 25 of the Act for registration of the said body. It was duly registered by the Wakf Board on 05-12-1964. Furthermore, the Dawakhana Wakf paid wakf contribution to the Board under of the Act. A total sum of ` 43,940/11 was paid by the original plaintiff Wakif Mutawalli at different times till the year 1967. The Board therefore alleges that the plaintiff Dawakhana Wakf is now is estopped from challenging the nature of the wakf and the rights and privileges of the Board and its statutory obligations under provisions of the Act.
80. The plaintiff Dawakhana Wakf refutes estoppel and contends that the wakf contribution and the application filed to the Board, was under a mistaken belief that the body was covered under the Act. It is urged that what the plaintiffs are doing in this case is to assert that they are not wakfs, which is their legal right. Furthermore, the payment of contribution under mistaken belief is akin to payment of levies which are inapplicable; if there is no warrant or authority, of the agency, or the Government, such payments are extractions, and cannot be set as estoppels. Senior counsel for the plaintiffs also urged that there can be no estoppel against law, or legal rights.
81. Estoppel is a rule of evidence; it is also an equitable principle, which disables a party from resiling from asserting something, which he accepted previously. As stated in S. Sethuraman v. R. Venkataraman, (2007) 6 SCC:
"Principle of estoppel has no application in a case of this nature. The appellant did not and in fact could not confer upon an authority a R.P. No.126/2010 in OMP 660/2009 Page 67 jurisdiction which he did not derive under the statute. If jurisdiction cannot be conferred by consent, it cannot clothe the authority to exercise the same in an illegal manner."
Similarly, in A.C. Jose v. Sivan Pillai, (1984) 2 SCC 656, while rejecting the plea of estoppel, raised by a party to non-suit another on the ground, that he had agreed to follow the procedure in issue, it was held that:
"it was argued by the counsel for the respondents that the appellant would be estopped from challenging the mechanical process because he did not oppose the introduction of this process although he was present in the meeting personally or through his agent. This argument is wholly untenable because when we are considering a constitutional or statutory provision there can be no estoppel against a statute and whether or not the appellant agreed or participated in the meeting which was held before introduction of the voting machines, if such a process is not permissible or authorised by law he cannot be estopped from challenging the same."
In another decision, Kalidas Dhanjibhai v. State of Bombay, (1955) 1 SCR 887, the Supreme Court ruled out estoppel, in such situations:
"11. The learned High Court Judges were influenced by matters which we consider inconclusive. The appellant applied for registration under the Bombay Act and in the statement made under Section 7 he called his establishment a "workshop" and described the nature of his business as a "factory". The learned Judges considered that this imported an admission that his establishment was a "shop" because of the use of the word "shop" in "workshop." This might have raised an inference of fact against the appellant had nothing else been known but when the facts are fully set out as above and admitted, the appellant's opinion about the legal effect of those facts is of no consequence in construing the section. No estopped arises. The appellant explained that the matter seemed doubtful, so, to be on the safe side and avoid incurring penalties for non-registration should it turn out that his concern was hit by the Act, he applied for registration. It is to be observed that though he applied on 12th April, 1949 he was not registered till 4th May, 1950 and the certificate was not given to him till 8th January, 1951. The present prosecution was launched on 4th April, 1951. Government itself seems to have been in R.P. No.126/2010 in OMP 660/2009 Page 68 doubt. However, that is neither here nor there. What we think was wrong was placing of the burden of proof on the appellant, in a criminal case, because of a so-called admission. The learned High Court Judges also advert to the fact that though the appellant's concern was registered as a "shop" he made no protest and did not have recourse to Section 7(3) of the Act.
12. We do not think Section 7(3) has any application. The appeal is allowed. The conviction and sentence are set aside and the judgment of the learned trying Magistrate acquitting the appellant is restored. The fines, if paid, will be refunded."
82. For the above reasons, this court holds that estoppel cannot be validly set up against the present plaintiff; the defendant Wakf Board derives its authority from statute; only if the body is a wakf would it possess jurisdiction over it. In the present case, no amount of conduct, by an institution, indicative of its belief that it is a wakf would confer jurisdiction or power over it, unless it is actually a wakf. Therefore, the Board cannot legitimately claim authority over the Dawakhana Wakf, or the other plaintiffs, on the basis of such estoppel. This issue is answered against the Defendant, and in favour of the plaintiffs.
Issue No. 9: Relief
83. In view of the above discussion and findings, it is held that the plaintiffs are entitled to the declarations sought. The court holds and declares that the plaintiffs in these four suits, and the entities described in Entries 63, 63 (a), 63 (b) and 64 of Notification No. 3553/70 dated 12-12-1970 published in the Delhi Gazette at pages 1318-1321 (dated 19-12-1970) are not wakfs under the Wakf Act, and their inclusion as Wakfs are illegal and ultra vires the Wakf Act, and are not wakf within the meaning of that expression known to law.
R.P. No.126/2010 in OMP 660/2009 Page 69
84. Each plaintiff is entitled to costs throughout, in all the suits. The four suits, i.e. CS (OS) No. 116/1972; 117/1972; 118/1972 and 119/1972 are accordingly decreed, subject to the directions (in para 78) in the above terms.
December 23, 2011 (S.RAVINDRA BHAT)
JUDGE
R.P. No.126/2010 in OMP 660/2009 Page 70