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“9.The plaintiffs claim that the suit property belongs to private wakf, wakf-alal-aulad and it is not a public wakf. On the other hand, it is the specific stand of the Wakf Board that the same is a public wakf. As said earlier, the High Court heavily relied on Ext. A-22 which is a pro forma maintained by the Wakf Board. The _______________ https://www.mhc.tn.gov.in/judis learned Judge has extracted all the details/entries made in the pro forma. Those details are available in the High Court's judgment and we perused the same. It mentions that the object of the wakf is for the support of feeding the fakirs and lighting the tomb of Larabsha and to do Fatihah. It further shows that these services are to be rendered without alienating the properties. Name of the beneficiaries are noted as “Mrs Safia Bi, wife of Syed Umar, Larabsha Darga”. In Column 9 of the rule of succession, it is stated that “hereditary as per TD”. It further shows that out of the income derived from the suit property, a portion of the same is meant for pious, religious and charitable purposes and remaining was used for the maintenance of the family. Column 17 of the remarks states that originally RS No. 24, 205 acres dry belong to Noor Mohammad Darga, Panruti. One Inayath Shah, a sixth successor Janishin conveyed this land containing houses and shops to one of his disciples Shabansha by means of settlement (“hiba”) in 1939. This Shabansha, in his turn made a settlement in favour of Larabsha who is the paternal grandfather of the husband of Safia Bi, who is now enjoying the lands. No accounts are maintained. Only Fatihah is done on every Thursday evening and the tomb is lighted daily. At present Safia Bi is the Mutawalli. A few rupees are spent for the Darga and the balance is utilised for the maintenance of the family. The above details furnished in the pro forma clearly reveal that succession to the office of Mutawallis is hereditary and the income has got to be spent for pious, religious and charitable purposes and a portion was also used for management of the family.
10.As rightly observed by the High Court, inasmuch as a portion of the income is to be spent for the family apart from pious, religious and charitable purposes, it satisfies the character of a private wakf i.e. wakf-alal-aulad. The said document i.e. Ext. A-22 also supports the claim of the plaintiffs that they are the hereditary Mutawallis of the private wakf. These aspects have been fully considered and rightly concluded by the trial Judge as well as the High Court. On the other hand, as rightly pointed out by learned Senior Counsel for the respondent-plaintiffs, the lower appellate court on misconstruing the decision in SA No. 1104 of 1983 wrongly allowed the appeal.
11.As observed earlier, in Second Appeal No. 1104 of 1983, _______________ https://www.mhc.tn.gov.in/judis the High Court had no occasion to consider whether it is a private wakf or a public wakf, but, on the other hand, in the earlier suit, the plaintiffs claimed the suit property as their private property and not as private wakf property and only in the said circumstance the High Court in Second Appeal No. 1104 of 1983 rendered the finding that the suit property is a wakf property and it is not a private trust property. Inasmuch as in appreciation of acceptable material, the trial court as well as the High Court arrived at a conclusion that the suit property is a private wakf and not a private property, we are in agreement with the conclusion of the High Court that the decision in SA No. 1104 of 1983 has no bearing to the issue in the latter proceeding. The High Court has also rightly concluded from Ext. A-1 that there is no indication that the wakf is a public wakf and hiba only indicates that certain things have got to be carried out in respect of pious, religious and charitable purpose and pro forma Ext. A-22 supports the claim of the plaintiffs. Looking at any angle, in the light of the materials placed, particularly additional documents Exts. A-22, A-23 and A-24 which were received on the basis of an application which was ordered on 20-4-2004, we are in entire agreement with the conclusion arrived by the High Court and do not find any valid ground for interference.” (4)The Hon'ble Supreme Court in the case between Madanur Sri Rama Chandra Murthy vs Syed Jala, reported in (2017) 13 SCC 174, had held as follows:
“In Muslim Law a wakf means permanent dedication by a Muslim of any property for any purpose recognised by Muslim Law as pious, religious and charitable. A wakf is created by mere declaration of endowment by the owner of the property, and upon such declaration, the property immediately vests in God Almighty. In case of a Public Wakf, the corpus as well as the usufruct, vests in God, since the usufruct becomes immediately applicable to the enumerated holy purposes. But in case of a private wakf or Wakf- alal-aulad, only the corpus of the property vests in God immediately and the enjoyment of the usufruct is postponed till after the extinction of the Wakif, his family and descendants. A Public Wakf is one for religious, pious and charitable purposes and a Private Wakf is one for the benefit of the settlor's family and descendants. Such a private wakf as per the the Muslim Law to be valid should have reserved the ultimate benefit for the purposes recognised by Muslim Law as religious, pious and charitable.”