IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 CRP.No. 779 of 2008 A ---------------------------------------- WOS.23/2007 of WAKF TRIBUNAL, ERNAKULAM .................... REVN. PETITIONER(S): PLAINTIFF IN THE WAKF TRIBUNAL ----------------------------------------------------------------------------------- ABDUL SATHAR HAJEE MOOSA SAIT DHARMASTHAPANAM, PULLEPPADY, KOCHI-18.REP;BY ITS MUTHAWALLY AND MANAGING TRUSTEE ADAM ABOOBACKER SAIT,S/O.ABOOBACKER SAIT,AGED 65 YEARS,RESIDING AT MANILAL FLATS, CHITTOOR ROAD, KOCHI-35. BY ADV. SRI.P.S.USUPH SRI.P.U.ZIYAD RESPONDENT(S): DEFENDANTS IN THE WAKF TRIBUNAL ---------------------------------------------------------------------------------- 1. SMT.MAIMUNA BAI, 41/1080, ASHM TRUST BUILDING, CHITOOR ROAD, PULLEPPADY, ERNAKULAM, KOCHI-682018. 2. ABDUL SATHAR MOHAMMED HUSSAIN DO. DO. 3. MUMTHAS BAI, DO. DO. 4. SHAMSHAD BAI, DO. DO. 5. THE KERALA STATE WAKF BOARD, V.I.P.ROAD, KOCHI REPRESENTED BY CHIEF EXECUTIVE OFFICER. ADV. SRI.P.CHANDRASEKHAR FOR R4 SHRI. T. KRISHNAN UNNI (SR) FOR R5. SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD FOR R5 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28.01.2010, THE COURT ON 19.02.2010 PASSED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No. 779 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th February, 2010 O R D E R K.M. Joseph, J. This Revision Petition is filed by the plaintiff in W.O.S.No. 23 of 2007 on the file of the Wakf Tribunal, Ernakulam. Respondents 1 to 5 herein are the defendants 1 to 5 in that Suit, which was filed for permanent prohibitory injunction. 2. The facts of the case, according to the petitioner, are briefly as follows: The plaintiff/revision petitioner Abdul Sathar Haji Moosa Sait Dharmasthapanam is a Wakf within the meaning of the Wakf Act, created by the registered Will executed by late Abdul Sathar Haji Moosa Sait in 1099 M.E. It is registered with the Kerala Wakf Board under Section 25 of the Wakf Act, 29/1954 as early as in 1961 with Register No.3300/RA. The said Wakf is managed by the Managing Trustee with the help of a CRP.NO.779/08 2 committee known as Board of Trustees, constituted as per the provisions of the Will. The said Wakf has got several items of properties. One such item is the buildings bearing door Nos 41/1079 and 1080 situated in the property in Sy.No.393/1 of Ernakulam Village scheduled in the plaint. Building No.41/1080 is a residential building and building No.41/1079 is a shop room. 3. The father of defendants 1 to 4 several years back took the aforesaid buildings on rent. After the death of the father of defendants 1 to 4, the said defendants are continuing as tenants. 4. On 10.4.2007, it was noticed by the plaintiff that the defendants are collecting building materials in the plaint schedule property with the intention of making modification and alteration in the plaint schedule buildings for which the defendants 1 to 4 have no right. So the plaintiff filed the Suit praying for a decree of permanent prohibitory injunction, restraining defendants 1 to 4 from making any addition or alteration to the plaint schedule buildings. The Kerala Wakf CRP.NO.779/08 3 Board was impleaded as additional 5th defendant in the Suit. 5. Defendants 1 to 4 filed written statement mainly contending that the plaintiff, M/s. Abdul Sathar Haji Moosa Sait Dharmasthapanam is not a Wakf because the properties of the said Dharmasthapanam were not dedicated for any religious purpose and further contented that late Abdul Sathar Haji Moosa Sait, who was the predecessor in interest of the defendants, by his Will only created a Trust in respect of B-schedule to that document for the welfare of the members of his family and therefore the properties of Dharmasthapanam are not Wakf properties. On this basis, defendants 1 to 4 contended that as the plaint schedule property is not a Wakf property and as the plaintiff Dharmasthapanam is not a Wakf, the suit is not maintainable for the reason that the Wakf Tribunal has no jurisdiction. 6. In the Wakf Tribunal PW1 and DW1 were examined and Exts.A1 to 6 and C1 were marked. The learned Wakf Tribunal, on considering the evidence, found that the plaintiff CRP.NO.779/08 4 Dharmasthapanam is not a Wakf, but a Trust and hence the Wakf Tribunal has no jurisdiction to entertain the suit and directed to return the plaint under Order 7 Rule 10 and 10A C.P.C. Against that judgment and decree the plaintiff filed this Revision Petition. 7. The Wakf Tribunal entered the following findings: The testator decided the trustees and the Rules for election of trustees. He made some stipulations regarding taking over the trust and its properties by the Government in case of mis- management and mal-administration of the trust and its properties by the trustees, inter alia. Thereafter, the tribunal finds that the issue whether the property was a wakf, was not considered in the decision of this Court in Mohammed Ebrahim Kassam Sait v. Kerala Wakf Board, Ernakulam (1980 KLT 497) and it will not help the petitioner. It is also found that the mere fact that a portion of 1/4th income from B schedule property was set apart for charitable purpose, will not convert the entire B schedule property as a wakf property. Referring to Ext.A1, CRP.NO.779/08 5 which is the true copy of the Register of Wakfs which was produced to show that the properties were included in the Register of Wakfs, it is found that it is not prepared and published in compliance with Sections 4(5) and 6 of the Wakf Act. It was found that there is no evidence to show that before inclusion of the property in the Register of Wakfs, enquiry as contemplated under Section 40 of the Act was conducted by the Wakf Board and it is found that Sub-section (3) of Section 40 is not applicable to these properties. It was found that the recital contained in Ext.A6 that a portion of the income from the trust property is set apart for some charitable purpose, but the beneficiaries are the members belonging to the testator's family and these provisions contained in the Will did not convert the entire property as a wakf property and setting apart the income from the trust properties will not convert the entire B schedule as wakf and further, some of the income set apart to charitable purpose may be the wakf. It is also found that there is no permanent dedication of B schedule property. CRP.NO.779/08 6 8. We heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 9. The learned counsel for the revision petitioner submitted that the Wakf Tribunal went wrong in finding that the plaintiff Dharmasthapanam is not a Wakf, which is against the provisions of the Wakf Act and against the provisions of Ext.A6 Will. Learned counsel for respondents 1 to 4 supported the judgment of the Wakf Tribunal. Learned counsel for the 5th respondent, Wakf Board, supported the arguments of the learned counsel for the revision petitioner. 10. Learned counsel for the revision petitioner invited our attention to the decision of the learned Single Judge of this Court reported in Mohammed Ebrahim Kassam Sait v. Kerala Wakf Board, Ernakulam (1980 KLT 497), in which the nature of Ext.A6 Will was considered. In that decision, the Will was marked as Ext.P1. As per the Will, the testator had divided his properties into three schedules, viz. A, B and C. A schedule is dedicated as Wakf and a Trust was purportedly CRP.NO.779/08 7 created with respect to B schedule property and C schedule property is gifted to his relatives. The plaint schedule buildings are portions of B schedule property in that Will. With regard to B schedule properties in that Will, in the decision reported in Mohammed Ebrahim Kassam Sait (supra), it is stated thus: “Under that Will the income of the Dharmasthapanam derived from the B schedule properties mentioned therein which the testator, late Abdul Sathar Haji Moosa Sait, permanently dedicated in favour of the Dharmasthapanam is to be apportioned in the ratio of 1:2:1 for the objects mentioned in clauses 6, 9 and 13 respectively. The objects stated in clause 3 are admittedly purposes recognised by Muslim Law as pious, religious or charitable. Under clause 13, 1/4th of the income is to be utilized for acquiring new properties for the Dharmasthapanam, the income derived from which also, as per clause 14, is, in turn, subjected to the apportionment in the same ratio and utilisation for the same purposes as the income from the B schedule properties. The remaining 50 per cent of the income has been set apart for the CRP.NO.779/08 8 maintenance and education of the testator's descendants [through his predeceased son and through his (the testator's) daughters] who are indigent and needy, a situation which the testator hopes and expects would not arise and he earnestly prays to Almighty God, to save them. It is further provided in Ext.P-1 Will that on failure of this object for the reason that there are no such descendants as are poor and destitute, the whole of this 50 per cent of the income, or otherwise, the surplus, if any, after meeting the expenses on this score that is available out of this 50 per cent of the income, as the case may be, is to be used, along with the 25 per cent of the income directed to be spent for acquiring new properties, for that purpose. Above all, on total failure of descendants wherefore no occasion will thereafter arise to apply any portion of the income for the maintenance of the testator' s descendants who are in needy circumstance, that is to say, on a complete failure of this object, the whole of the 50 per cent of the income allocated for that purpose, is also to be spent for the objects mentioned in clause 3, which, as already noticed, admittedly, CRP.NO.779/08 9 are purposes of a pious, religious or charitable nature under Muslim Law, Under clause 13 there is a complete and absolute prohibition of sale of the Dharmasthapanam's properties or creation of encumbrances thereon.” In that decision it was held: “Some reliance was placed on behalf of the petitioners on the Abdul Sathar Haji Moosa Sait Dharmastapanam, Trivandrum v. The Commissioner of Agricultural Income Tax, Kerala, Trivandrum (AIR 1974 SC 1795) where construing Ext.P-1 Will as having earmarked 3/4th of the income of the B Schedule properties primarily for the benefit of near relations of the testator, the Supreme Court held that the part of the bequest cannot be considered to be a public charitable trust for the purpose of S.4(b) of the Kerala Agricultural Income Tax, 1950 so that the same is liable to be taxed thereunder. Assuming the same to be so and without going into that question herein as it is unnecessary since the Wakf Act, 1954 would govern private Wakfs - Wakfs - alal - aulad - also, the point that falls for decision herein is as to whether the object and purpose for CRP.NO.779/08 10 which 50 per cent of the income from the B Schedule properties has to be applied is a 'purpose recognized by Muslim Law as pious, religious or charitable', an expression which finds place both in the body of S.3(1) and in inclusion clause (iii) thereof or is that object to any extent otherwise. Therefore, it is also not necessary to decide whether Ext.P-1 evidences a Wakf simpliciter falling within the body of S.3(1) as contended on behalf of the respondent, or whether it is a Wakf-alal-aulad coming within inclusion clause (iii) thereof. I have for reasons stated earlier found that the said object is one recognized by Muslim Law as pious, religious and charitable'. The objects mentioned in clause 3 of Ext.P-1 are admittedly so recognized by Muslim Law. The remaining ¼ th of the income is to be invested for acquiring new properties for the Dharmasthapanam, the income from which also, in turn, is to be spent for the same purposes and in the same manner. There can be no doubt that this object of acquiring with a reasonable portion of the income new properties for the charity to earn additional income to be spent for objects which CRP.NO.779/08 11 are recognized by Muslim Law to be pious, religious or charitable, in itself, is one so recognized, for then only can be charity expand its charitable activities.” 11. Shri P.S. Usuph, learned counsel for the petitioner would contend that the tribunal has clearly erred in not finding that there was a wakf. According to the petitioner, a wakf can be created for any purpose recognised by Muslim Law as pious, religious or charitable, and the inclusive definition in the Wakf Act would include a wakf-alal-aulad which takes in the three objects, namely pious, religious or charitable. It is pointed out that the relevant clauses in Ext.A6 have not been appreciated in the correct perspective and on the basis of the correct legal position. It is further contended that the petitioner was registered as a wakf in 1961 under Section 25 of the Wakf Act, 1954 vide Ext.A1. It is submitted that the decision of the Wakf Board as to whether any property is wakf property, is final unless it is reversed by a competent civil court as per Section 27 of the said Act. It is contended that the CRP.NO.779/08 12 provision contained in Section 40 of the Act did not enable the tribunal to revoke the decision of the Wakf Board. 12. We will first examine the definition of the word “wakf” as per the Wakf Act, 1995 (hereinafter referred to as the Act). It is contained in Section 3(r) and it reads as follows: “3(r) “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 but Wakf shall not cease to be a Wakf by reason only of the user having ceased irrespective of the period of such cesser; (ii) “grants”, including mashrut-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and (iii) a Wakf-al-al-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable.” CRP.NO.779/08 13 The word “Wakf”, it would appear, evolves from the Arabic word “Waqafa”. This means “to detain” or to “tie up”. Prophet Muhammed has stated as follows: “Tie up the property (corpus) and devote the usufruct to the welfare of human beings and it is not to be sold or made the subject of gift or inheritance, devote its produce to your children, your kindred and the poor and in the way of Allah”. It would appear that there are three essentials for a valid wakf. There must be a permanent dedication of property. The dedication must be irrevocable. It cannot be alienated or transferred. A wakf can be created by a Will. Since the finding of the tribunal is that there is no wakf in respect of B schedule, but there is only a trust, we will notice the distinctions. The following would appear to be the distinctions in a tabular form in Verma On Mohammadan Law: CRP.NO.779/08 14 TRUST WAKF 1. No particular motive is necessary 1. It is generally made with a pious, religious or charitable motive. 2. The founder may himself be a beneficiary. 2. The wakif cannot reserve any right to benefit for himself, except to some extent under Hanafi law. 3. It may be for any lawful object. 3. The objects must be recognised by Muslim law as pious, religious and charitable and in case of family settlement, the ultimate object must be some benefit to mankind. 4. The property vests in the trustee. 4. The property vests in God. 5. A trustee has got a larger power than a mutawalli. 5. A mutawalli is only a manager or superintendent. 6. It is not necessary that a trust may be perpetual, irrevocable or inalienable. 6. A wakf is perpetual, irrevocable and inalienable. 7. It is valid for any object which is not in contravention to law or morality. 7. Apart from these requisites, it must be for objects recognised as valid by Mohammadan law. 8. It results for the benefit of the founder when it is incapable of execution and the property has not been exhausted. 8. The `Cypres' doctrine is applied and the property may be applied to some other objects. (Muslim Law by Syed Khalid Rashid). In the “Outlines of Muhammadan Law” (Fourth Edition) by Asaf A. A. Fyzee, the Author states as follows: “(B). For whom ? - the Beneficiaries: The first question which arises is: Is poverty a necessary condition for obtaining benefit from a wakf ? According to Muhammadan law, wakfs may be made (i) for the affluent and the indigent alike; or (ii) for the affluent and thereafter for the indigent; or (iii) for the indigent CRP.NO.779/08 15 alone (g). The law does not insist that a man must necessarily be proved to be poor before he can take the benefit of a wakf. Poverty is one of the many qualities that are recognized as being capable of attracting the benefit of a wakf, but it is by no means a sine qua non. Therefore, all persons, regardless of considerations of wealth, are entitled to come in as beneficiaries. Nevertheless, it is perfectly correct to say that when all other purposes fail, the relief of the poor is the ultimate purpose of every wakf (h). Thus it is clear that the objects of a wakf may be different from the objects of a charitable trust as understood in English law. As regards relationship - (1) the wakf (but only in Hanafi law), or (2) the family and descendants of the wakf, or (3) unrelated persons are all capable of enjoying the benefits of a wakf. The wakif (or founder) is not entitled to take any benefit after the dedication, except under the Hanafi law.” CRP.NO.779/08 16 13. Now, we have to consider the law as to wakf-alal- aulad or family wakf. Under the Islamic Law, wakfs for the support of a man's descendants and family members were not considered improper. It is apposite that we refer to the following observations by Ameer Ali in this regard: “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 CRP.NO.779/08 17 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 below on the indigent stranger. And this is insisted upon so strongly that when a wakf 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 CRP.NO.779/08 18 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 `ibadat or worship, to use the language of the Jawahir-ul- Kalam,- an act by which kurbat or 'nearness' is obtained to the Deity.” It was while so that the Privy Council came to consider the question as to whether the wakf in question, which was a family wakf, was valid. Therein, two Muslim brothers made a wakf. They were to be the first Muthawallis. The entire benefit was to go to their children in the first instance and their descendants from generation to generation till the family became extinct. Thereafter, the income was to be applied for the benefit of widows, orphans, beggars and the poor. The Privy Council took the view that the wakf was not valid. In the wake of the said decision, if the gift to charity were illusory or nominal or where the purpose was aggrandizement of a family, the wakfs were CRP.NO.779/08 19 declared void. There were protests including from Sir Ameer Ali in his work “Muhammadan Law”. This led to the passing of the Mussulman Wakf Validating Act, 1913. Subsequently, the Mussulman Wakf Validating Act, 1930 was passed, giving retro-active operation to the earlier Validating Act. 14. We will refer to the relevant Clauses in Ext.A6 Will. In Clause 7, it is stated as follows: “ 7. _n. ]«nIbnð ]dbpó hIIfpw AXnð Ct¸mÄ DÅXpw taemð DïmIpóXpamb kIe sZl®w BdmgvN Nab§fpw sI«nS§fpw Fsâbpw Fsâ IpSpw_§fpsSbpw c£bv¡pw BßoI ]pWy¯n\pambn Xmsg \nÝbn¡pó hyhØIÄ A\pkcn¨v Rm³ [À½Øm]\ kz¯mbn \nÝbn¨p Øncs¸Sp ¯pIbpw AXn\p (A_vZpk¯mÀ lmPnaqkmbpsS [À½Øm]\w) Fóp t]cpsImSp¡pIbpw sNbvXncn¡póp. Fsâ Imetijw _n. ]«nI hkvXp hnsâ ]«bw tað]dª [À½Øm] \w s]cnÄ hm§nt¡ïXmIpóp.” CRP.NO.779/08 20 Clauses 8 and 9 read as follows: “ 8. Fsâ Imetijw _n ]«nI hIIsf Rm³ Ct¸mÄ \nÝbn¨n «pÅXpw Xmsg t]scgpXpóXpamb amt\Pvsaâv {Skvän Asñ¦nð ]nóoSv Rmt\m {SÌnamcmð XncsªSp¯v A [nImcs¸Sp¯pó amt\Pvsaânsâ {SÌnsbm ssIhis¸Sp¯n BZmbw FSp¯ B Ime¯v ]«nIhkvXphnð \nIgvt¯ïXpw ]Wn]qÀ¯nbms¡ï Xpamb Øe§fpsï¦nð B hI ] WnIÄ \S¯n ]qÀ¯nbmt¡ïXnte¡v Nnehv sN¿pIbpw ]nóoSv In«pó BZmb¯nð \nópw B Øes¯ ImtemNnXambn sNt¿ï {]bXv\ §Ä¡pw kwc£W¯n\pw aäpw thï Fñm NnehpIfpw sNbvXpw kÀ¡mÀ Icw sImSp¯pw Cu [À½Øm]\w kw_Ôambn sImSpt¡ïnhcpó i¼fw apXemb hIbv¡pw tÌj\dn A¨Sn XpS§nbhbv¡pw aäpw thï NnehpIfpw sNbvXv _m¡n DÅ BZmbw Bï hkm\w \membn Awin¨p AXnð Hcp `mKw kwJy Fsâ amXm]nXm¡òmcpsS IpSpw_¯nðs¸« km[p¡Ä¡pw ]pXpapÉo§Ä¡pw `£Ww DSp¸v apXem bhbv¡v sImSp¡póXn\pw apl½Zob aX kw_Ôamb ]T\§Ä ]Tn¸n¡p CRP.NO.779/08 21 óXn\pw CXc `mjm hnZym`ymkw apl½Zobcnð {]Ncn¸n¡póXn\pw Aä Ipä§Ä `hn¨ apl½Zob ] ÅnIÄ \óm¡n ]Wnbn¡póXn\pw ] pXp Xmbn ]Wnbn¡pó apl½Zob ] ÅnIÄ¡v klmb[\w sImSp¡póXn\pw ]ÅnIÄ ] Wnbn¡póXn\pw AXntebv¡pw apl ½ZobcpsS ivaim\¯n\pw `qanIÄ hm§póXnte¡pw [À½¡nWdpIÄ Dïm ¡póhIbv¡pw apÉow A\mYa¿m AS¡w sN¿póXn\pw sIm¨n Xncp hnXmwIqÀ Cu Øe§fnð hkn¡pó I¨osaa³amcnð km [p¡fmbhÀ¡pw hn[hIÄ¡pw `£Ww DSp¸p apXembh sImSp¡póXn\pw dwkm³ amk¯nð km[p¡Ä¡v ]e{]Imc¯nð [À½w sImSp¡póXn\pambn ASp¯ sImñ¯nð Nnehv sNt¿ïXmIpóp. Fómð tað¸ dª Fñm C\§Ä¡pw AhØm \pkcWw hoXn¨v sNehpsN¿pIsbm AXmXp Ime¯pÅ ØnXnbpw Bh iyhpw KpWhpw t\m¡n GXm\pw C\ §Ä¡mbns«m GsX¦nepw Hcn\¯n\v am{Xambns«m Nnehv sN¿póXn\v k½ XapÅXpw Bb {SÌnamtcmSpwIqSn Btem Nn¨v `qcn]£m`n{]mb{]Imcw Xocp am\n¨v enÌv X¿mdm¡n Bhn[w Nnehv CRP.NO.779/08 22 sNbvXpsImtÅïXpw BIpóp. GXv \nebnepw Cu \menð Hcwiw kwJy Bïv tXmdpw _m¡n hcp¯msX tasegpXnbhn[w NnehvsNbvXp sImtÅ ïXmIpóp. 9. _m¡n aqóv Awi¯nð cïv Awiw Fsâ aI³ acn¨ A_vZpðIcoansâ aI³ aqkmbpsSbpw Ahsâ