IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS No. 43 of 2000(D)
1. ANSARUL ISLAM EDUCATIONAL ASSN.
... Petitioner
Vs
1. MRS.P.V.KUNHIBI
... Respondent
For Petitioner :SRI G. UNNIKRISHNAN
For Respondent :SRI.AVM.SALAHUDIN
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :18/01/2008
O R D E R
KURIAN JOSEPH & HARUN-UL-RASHID,JJ.
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A..S. NOS. 43 & 104 OF 2000
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Dated this the 18th day of January, 2008.
JUDGMENT
Harun-Ul-Rashid, J.
These appeals are filed against the judgment and decree in O.S.
No.589 of 1992 on the file of the 1st Additional Sub Court, Kozhikode.
A.S. No.43 of 2000 is filed by the plaintiffs and A.S. No.104 of 2000 is
filed by the additional second defendant in the suit. The suit was filed for
a decree directing the first defendant to vacate and surrender possession of
the properties detailed in the plaint schedule, for damages to the tune of
Rs.50,000/-, for mense profits, past and future and other ancillary reliefs.
The trial court by the impugned judgment held that Ext.A2 deed does not
constitute a valid Wakf, that the provision in the deed for appropriating the
income by the Wakif is repugnant to Mohammedan Law since the Wakif
belongs to the Shafi Sect. and that the Wakif himself was enjoying the
property while he was acting as Muthavalli. The trial court also held that
Ext.A2 deed was invalid because of the repugnant provisions contained in
it and that the plaintiff/society does not acquire any right in the Wakf
properties. On the basis of the finding recorded, the court below
dismissed the suit.
A.S.NOS.43 & 104 OF 2000 2
2. The first plaintiff is a society registered under the Registration
Act. According to the plaintiffs, under a registered Wakf deed
No.281/1927, executed by deceased Khan Bahadur Valiyakath Hajee Ali
Barami, the plaint schedule property stood dedicated by way of Wakf.
There is a clause in the Wakf deed that in case the family of Ayishabi and
Pathummabi becomes extinct, the beneficiaries of the Wakf shall be the
plaintiff’ school and the Madrassas under it. It was also made clear that the
trustees of the said school shall become the Muthavalli. According to the
first plaintiff, since the last Muthavalli died on 8.4.1992 without leaving
any issues, the plaintiff/society has become the sole beneficiary of the
Wakf and that the defendant has no manner of title, claim, interest or rights
whatsoever in the Wakf properties. The first plaintiff, therefore, instituted
the suit for the aforementioned reliefs.
3. The first defendant who is in possession of the plaint schedule
properties and acting as the present Muthavalli resisted the suit inter alia
contending that the plaintiff/society has no right or authority to file the
suit and that it is not correct to say that the family of Ayishabi and
Pathummabi became extinct. The defendant also contended that she is
the senior most member who has been accepted, adopted and treated by the
A.S.NOS.43 & 104 OF 2000 3
original Wakif and the other female descendants as the Muthavalli and
that she is in absolute possession and management of the Wakf properties.
She further contended that she and her children are entitled to continue the
line of succession and are legally and rightfully entitled to be the trustee
and beneficiary of the Wakf. According to the defendant, deed
No.281/1927 is not a Wakf deed, that the deed attaches more importance
to the maintenance of the family members by appropriating the income
than for charitable or other purpose and that without any permanent
dedication of the properties, the deed is invalid. It is also contended that in
the subsequent deeds executed in 1951, 1958 and 1961, the status of the
defendant as the trustee of the tharwad is asserted, affirmed and accepted
by the original Wakif. The defendant also contended that the
plaintiff/society has no manner of right over the plaint schedule property
and nor are they entitled to get recovery of possession of the properties
and, therefore, prayed for dismissal of the suit. The Wakf Board also filed
a written statement supporting the claim of the defendant and prayed for
dismissal of the suit.
4. The court below interpreted the various clauses in Ext.A2 Wakf
deed. The court below noticed that Ext.A2 would show that the settlor had
made it clear in the deed that recital of Quran, reading of Moulood and
A.S.NOS.43 & 104 OF 2000 4
providing food to the poor on the day of Moulood should be from the
income from the property. Referring to Section 3 of the Mussalman Wakf
Validating Act, 1913, the court below observed that there cannot be any
valid Wakf since Ext.A2 contains a provision for appropriation of the
property by the Wakif himself. According to the learned Judge, the
recitals in Ext.A2 clearly show that there is a provision in the said deed
that the Wakif could enjoy his property. This provision is repugnant to
the provisions of the Mussalman Wakf Validating Act and hence it was
held that no valid Wakf was created by Ext.A2 deed.
5. We have gone through the different clauses in Exts.A2, B1 and
B2 deeds. For the creation of a valid Wakf, there should be permanent
dedication by a Muslim of his properties for any purposes recognized by
Muslim Law as religious, pious or charitable. To constitute a Wakf, not
only should the object be religious, it should be charitable as well. Unless
a permanent dedication to charity is ascertainable from a document, it
would not be proper to declare it as Wakf deed. We have noticed the
following recitals at pages 2 and 3 of Ext.A2:
. In page 3 of Ext.A2 it is recited that
A.S.NOS.43 & 104 OF 2000 5
. In page 4 of Ext.A2
deed, there is a provision for right of residence of tarwad members. The
recitals in page 4 of the deed would again go to show that the properties
shall not be alienated or encumbered by any members of the tarwad. It is
also recited at pages 4 and 5 of Ext.A2 that Ayishabi followed by
Pathummabi and their descendants shall act as Muthavallis and shall in
their capacity as Muthavallis, after remitting the tax and expenses for
repair and maintenance, utilise the balance amount for religious and
charitable purposes. At page 7, there is a provision for vesting the
properties in favour of Madrassaul Muhamadiya school of madrassa for
the purpose of educating the orphans. It is further recited therein that the
trustees of the said school shall manage and spend the income for the said
charitable purposes.
6. On 25.9.1958, the Wakif executed Ext.B2 deed in which the first
defendant who is the niece of the Wakif and her descendants were
authorised to act as Muthavallis of the Wakf properties and that the
A.S.NOS.43 & 104 OF 2000 6
defendant and her descendants, as members of the family, shall act in
succession and continue to manage the property and do the acts stated in
Ext.A2 Wakf deed. Again, the Wakif on 20.10.1961 executed another
settlement deed marked as Ext.B1 clarifying and explaining the duties of
the Muthavalli.
7. Learned counsel appearing for the Mohammedan Educational
Association in A.S. No.43 of 2000, referring to the clauses stated above,
submitted that a valid Wakf was created by Ext.A2 deed and, therefore,
the interpretation of Ext.A2 by the court below is incorrect. He
particularly referred to the recitals at pages 2 and 3 which are extracted
above. According to him, going by the object for which Ext.A2 was
executed, the basic requisite is that there should be a permanent dedication
of property for religious or charitable purposes. The various purposes
enunciated in Ext.A2 and the object for which Ext.A2 was executed,
according to counsel, would show that there is a permanent dedication of
property for the purposes recognised by Mohammedan Law as religious,
pious or charitable. According to him, this is not a case where the only
object is recital of Quran and observing Moulood. Therefore, according
to him, the contention of the first defendant that these are not the objects
for which Ext.A2 was created cannot stand. Besides recital of Quran,
A.S.NOS.43 & 104 OF 2000 7
reading of Moulood and feeding the poor, there are other recitals in the
Wakf deed which would go to show that the income from the Wakf
properties shall be utilised for other charitable purposes, contended
counsel.
8. Learned counsel appearing for the first respondent/defendant
brought to our notice Section 3(a) of the Mussalman Wakf Validating Act,
1913 and canvassed the position that it shall be lawful for a Mussalman to
create a Wakf for the purpose of maintenance and support wholly or
partially of his family, children and descendants and, therefore, the
provision in Ext.A2 deed making provision for maintenance of the family
members is not repugnant to Mohammedan Law. Counsel also referred to
the definition of Wakf deed under Section 3(s) of the Wakf Act, 1995
which reads as follows:
“wakf deed” means any deed or instrument by
which a wakf has been created and includes any
valid subsequent deed or instrument by which
any of the terms of the original dedication have
been varied.”
According to the learned counsel, the provision in Ext.A2 regarding
dedication of property as a family Wakf is made intact and is not violated
in Exts.B1 or B2 deeds. Exts.B1 and B2 deeds are created only for the
A.S.NOS.43 & 104 OF 2000 8
purpose of appointing subsequent Muthavallis and for laying down duties
for the purpose of management. The dedication in Ext.A2 deed has
neither changed nor varied in Exts.B1 and B2. According to counsel, such
execution of subsequent deeds are permissible under the Wakf Act and
that such subsequent deeds form part of the original deed. Counsel also
contended that the Wakf is not valid because it contains provisions for
appropriation of the property by the Wakif himself and that the settlor
himself can enjoy the property is repugnant to the Mussalman Wakf
Validating Act. According to him, such an appropriation of property is
permissible only if the Wakif is a Hanafi Mussalman.
9. Learned counsel appearing for the appellant in A.S. No.43 of
2000 also contended that if the Wakf is created with a condition that the
whole or part of it shall be for himself while he lives and after him for the
poor is strictly in consonance with the principles of Mohammedan Law,
that it is permissible to create wakf-alal-aulad under which a trust in
perpetuity can be created for the maintenance and support wholly or
partially of the family of the settlor, his children or descendants from
generation to generation and thereafter for the benefit of the poor or for
any other purpose recognized by Mohammedan Law as religious, pious or
charitable purposes of a permanent character.
A.S.NOS.43 & 104 OF 2000 9
10. Learned counsel appearing for the Kerala Wakf Baord/appellant
in A.S. No.104 of 2000 submitted that the Wakf in question was registered
in 1968 before the Wakf Board at a time when the Wakif was alive and
that the Muthavallis from time to time had understood and accepted
Ext.A2 as a valid Wakf and submitted annual returns and paid contribution
to the Wakf Board and, therefore, they cannot now turn round and say that
no valid Wakf was created by Ext.A2. Counsel also pointed out that the
first defendant had submitted an application on 8.3.1993 before the Board
to enter her name as Muthavalli of the Wakf on the death of the former
Muthavalli, Valiyakath Pathummabi on 8.4.1991 and that the conduct of
the first defendant is proof positive to show that Ext.A2 is a valid Wakf.
11. On the facts and circumstances of the case, we are of the view
that a reading of Exts.A2, B1 and B2 as a whole, to spell out the contents
and manner of its terms is necessary for the proper adjudication of the
respective contentions raised by the parties to the suit. The first
respondent in A.S. No.43 of 2000 filed I.A. No.4146 of 2007 praying to
receive Annexure R1 document, which is the register of Wakf relating to
Barami Valiyakam Charitable and Family Wakf, as an additional
document. It is stated in Annexure R1 that the register pertains to the suit
A.S.NOS.43 & 104 OF 2000 10
properties and that the same was registered with the Wakf Board by the
then trustee of the properties. According to the petitioner in the above
application the suit properties are family trust properties and the petitioner
is the present trustee of the said properties and that the trust was created
predominantly for the welfare of the family members of the person who
executed it. The petitioner prayed that she and her children may be held to
be the beneficiaries of the properties in the event of this Court finding that
Exts.A2, B1 and B2 are family Wakf properties.
12. Since Annexure-R1 is a document produced only in the appeal,
the learned counsel for the appellants pray that the matter may be remitted
to the court below, so that the parties will get an opportunity to take all
contentions centering round the said document. The counsel for the
respondents also submitted that in view of the contentions taken by the
parties in both the appeals, some of which are referred to by us above and
which have not been considered by the court below, the cases may be
remanded to the court below with opportunity to adduce evidence, if any.
Having regard to the nature of the contentions, we are of the view that it is
only appropriate that such an opportunity is given to the parties before the
court below in which case the said court being the court at the first
instance will get an opportunity to adjudicate all those issues.
A.S.NOS.43 & 104 OF 2000 11
Accordingly, we set aside the judgment and decree under appeal.
Under the Wakf Act, 1995, any question relating to Wakf property shall be
decided by the Tribunal and the jurisdiction of the civil court is barred
under Section 85 of the Act. Therefore we remand O.S. No.589 1992 to
the Wakf Tribunal, Kozhikode for denovo consideration. The parties are
at liberty to adduce fresh evidence, if any. There will be no order as to
costs.
KURIAN JOSEPH, JUDGE)
(HARUN-UL-RASHID, JUDGE)
sp/
A.S.NOS.43 & 104 OF 2000 12
KURIAN JOSEPH &
HAURN-UL-RASHID, JJ.
A.S.NOS.43 & 104 OF 2000
JUDGMENT
18TH JANUARY, 2008
A.S.NOS.43 & 104 OF 2000 13
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