PETITIONER:
MOHAMMED
Vs.
RESPONDENT:
MOHAMMED BEKE
DATE OF JUDGMENT: 06/09/1996
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
ACT
HEADNOTE
JUDGMENT
ORDER
Leave granted.
Though the respondent has been served, no one appeared for him. We requested Shri E.M.S. Anam, learned counsel to assist the Court as amicus curiae. We deeply appreciate the valuable assistance rendered by him in this case. The facts which are fairly not in dispute are as under:
This appeal by special leave petition arises from the judgment and order of the High Court of Kerala made on November 16 1993 in SA No.86 of 1986 and the order made on 12.1.1994 in RP No. 251 of 1993 in SA NO.86/88. The admitted facts are that the appellant, as an owner of certain properties, had executed a registered judgment in which he had mentioned that one acres 65 cents of land together with buildings and trees standing on Survey No.612/A situated in Manjalamkunnel Myloor Kara Varappetty Pakuthy was given to the father of the appellant for enjoyment during life of the usufruct derived from them. After his demise the properties would be used for the purpose of Muslim Jamat Mosque. During the life time of the father by another dead dated November 30, 1980 the above provision was cancelled. We are not concerned with other directions contained in the document.
The primary question for consideration is: whether by virtue of above provision mentioned in the registered document, wakf stood created under the Wakf Act, 1954? All the courts below including the High Court, concurrently found that the wakf had been created and, therefore, the appellant has no right to cancel the deed. The question, therefore, then is:whether wakf has been created under the Act? Section 2(1) of the Wakf Act, 1954 defines ’Wakf’ as under:
"2(1) ’Wakf’ means the permanent
dedication by a person professing
island (or any other person) of any
movable or immovable property for
any purpose recognised by the
Muslim law as pious, religious or
charitable and includes-
(i) a wakf user (but such 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 (muafies. Khairati, qqzi
services, madad-mash) for any
purpose recognised by Muslim Law as
pious, religious or charitable,
and)
(iii) a Wakf-alal-aulad.
Provided that in the case of a
dedication by a person not
professing Islam, the Wakf shall be
void if, on the death of such
person, any objection to such
dedication is raised by one or more
of his legal representatives."
Section 2 (r) of the Wakf Act, 1995 also defines ’Wakf’ in similar terms except the words "or any other person" which are omitted in the latter Act: however, the latter definition is not relevant for purpose of this case. Under the Hanafi law, a wakf can be made first in favour of the wakf himself, descendants, kin etc, and then for other objects. According to Abu Yusuf, whose opinion has been adopted by the Hanafi jurists in India, the wakf may lawfully retain the profits for himself. As regards the lawfulness of the wakfs in favour of one’s descendants or kins, all the schools and jurists recognise the validity of such wakfs.
In Garib Das and Ors vs. Munshi Abdul Hamid and Ors. [AIR 1970 SC 1035], one Tassaduk Hussain was the owner of the disputed house and he admittedly executed a deed of wakf on June 21, 1914 in respect of the same for the benefit of a mosque and Madrasa at Nathnagar and had the same registered. In terms of the deed, the donor was to remain in possession of the house as Mutawali and his wife was to be the Mutawali after his death. The documents provided that after the death of both the husband and wife., the Mutawali would be elected by the panchas of the Muslim community of Nathnagar and so long as the donor and his wife were living, they would maintain themselves form the income of the property and spend the balance left for the mosque and the Madrasa. The question, under those circumstances, arose; whether the wakf had been created? It is seen that the document, the wakf deed, was exclusively created. He parted with the possession as an owner and became a Mutawali thereunder, and, though he and his wife were enjoying the income derived form them and the residue was utilised for maintaining the wakf, it was pleaded that wakf had been created and accordingly the Mutawali had no right to claim exclusive right as an erstwhile owner. This question was also considered elaborately by another bench of two judges of this Court in Syed Mohd. Salie Labbai (dead) by LRs. and Ors. vs. Mohd. Hanif (dead) by LRs. and Ors.[1976 (3) SCR 721]. At page 746, this Court held thus:
"It is not necessary for the
dedication of a public mosque that
a Muttawali of a Pesh Imam should
be appointed which could be done
later by the members of the Muslim
community. All that is Necessary
is that there should be a
declaration of the intention to
dedicate either expressly or
impliedly and a divestment of his
interest in the properly by the
owner followed by delivery of
possession. Here also the delivery
of possession does not involve any
ritual formality or any technical
rule. For instance in the case of
a mosque if the Mahomedans of the
village, town or the area are
permitted to offer their prayers
either on the vacant land or in a
mosque built for the said purpose
that amounts to the delivery of
possession and divestment and after
the prayers have been offered the
dedication becomes complete.
Unfortunately the Courts which
decided the previous litigation
between the parties do not appear
to be aware of the considerations
mentioned above."
After an elaborate consideration of all the authorities on the subject, this Court laid down there propositions as under:
It would thus appear that in order
to create a valid dedication of a
public nature, the following
conditions must be satisfied:
(1) that the founder must declare
his intention to dedicate a
properly for the purpose of a
mosque. No particular form of
declaration is necessary. The
declaration can be presumed from
the conduct of the founder either
express or implied:
(2) that the founder must divest
himself completely form the
ownership of the property, the
divestment can be inferred from the
fact that he had delivered
possession to the Mutawalli or an
Imam of the mosque. Even if there
is no actual delivery of possession
the mere fact that members of the
Mahomedan public are permitted to
offer prayers with azan ad ikamat,
the wakf is complete and
irrevocable; and
(3) that the founder must make some
sort of a separate entrance to the
mosque which may be used by the
public to enter the mosque."
Ameer Ali at pages 279-80 had stated thus:
"According to Abu Yusuf the right
becomes extinguished by his merely
declaring that he has made a
particular property wakf and this
is also the opinion of other Imams,
viz. Shafei, Malik, Hombal and of
universality of jurists, because
the extinguishment of the right of
property in a wakf is like that in
emancipation.... According to Abu
Yusuf such consignment not being
necessary, the wakf becomes
complete by the mere declaration of
the wakf that it constitutes wakf."
At page 339, it is further stated thus:
"That the rule laid down by Abu
Yusuf is the accepted doctrine has
already been shown form quotations
from all the recognised works of
law, such as the Fatawai Alamgiri,
Fatawai Kazi Khan, Fath-ul-Kadir,
Radd-ul-Muhtar, Ghaitul-Bayan,
Tas-hil and it is unnecessary,
therefore, to go over the same
ground again at any length. It may
be convenient, however, to
recapitulate as briefly as possible
the accepted principles on this
branch of the question.
(1) That a wakf is valid and lawful
by consensus.
(2) That it becomes absolute and
operative according to Abu Yusuf,
immediately on the declaration of
the wakf, in other words
immediately upon his signifying the
factum of the dedication.
(3) That no particular words are
necessary to create a wakf. So
long as it is evidence form the or
the conduct of the wakf that a
permanent dedication or settlement
is intended, it is enough.
(4) That a wakf may be made by a
Muslim in favour of an object
whether terminable or otherwise not
regarded as sinful in the Mussulman
Law.
(5) That where a wakf is made for
objects that are terminable or
liable to extinction the ultimate
benefit will continue for the
’poor’ even though it may not have
been destined for them expressly."
At page 343, it is stated:
"The principles of the Mussulman
Law, it is submitted were rightly
apprehended in the case of Fatima
Bibi vs. The Advocate General. In
this case, West, J. said as
follows:
" If the condition of an ultimate
dedication to a pious and unfailing
purpose be satisfied, a wakf is not
made invalid by an intermediate
settlement on the founder’s
children and their descendants."
(It must be noted that this is by
consensus, without any difference
of opinion between Abu Yousuf, the
law will presume the ultimate
dedication to an unfailing purpose
from the use of the word wakf)."
It would thus be clear form the authorities cited above that the founder must declare his intention to dedicate the property for the mosque. A specific declaration is necessary. The founder must divest himself completely from the ownership of the property. The diversment can be inferred form the fact that he delivered possession to the Mutawali or an Imam of the mosque. If there is no actual delivery of the possession, the mere fact that members of the Mohammedan public are permitted to offer prayers with azan and ikamat does not make the wakf complete and irrevocable. The founder must also make some sort of way which may be used by the public to enter the mosque. From the facts it is seen that the property was in exclusive possession and enjoyment of the father during his life time enjoying the usufruct thereof. There was no dedication and public was not allowed to have any prayers on the property as mosque: nor the public had access to it. During the life time of the father himself, the appellant had cancelled the deed. Under these circumstances, the necessary tests laid sown by this Court have not been satisfied to conclude that a wakf has been created in respect of the above properties.
The view of the Courts below is not correct in law. The appeals are accordingly allowed. The suit ultimately stands dismissed. However, in the circumstances, there will be no order as to costs.