IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 423 of 2004
1. HAJI.P.LIAKATH ALIKHAN,
... Petitioner
Vs
1. K.UNNEENKUTTY SAQUAFI, KUNNATH HOUSE,
... Respondent
2. M.P.ABDUL RAHIMAN FAIZEE,
3. K.P.MOHAMMED MUSLIAR, KOTTAMPARA HOUSE,
4. T.ABOOBACKER HAJI, S/O.KUTTY MOHAMMED
5. K,M,MANAF, S/O.MAMMUNNY, KOLAYIL
6. M.K.MOHAMMED IBRAHIM, MALEKALAVARA
7. DARUL AMAN ISLAMIC COMPLED, FORMER
8. KERALA WAKF BORAD, REPRESENTED BY ITS
For Petitioner :SRI.T.H.ABDUL AZEEZ
For Respondent :SRI.T.M.ABDUL LATHEEF
The Hon'ble MR. Justice R.BHASKARAN
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated : 07/09/2005
O R D E R
.SP 2
.TM 3
.BM 2
R.Bhaskaran & K.P.Balachandran, JJ.@@
j
—————————-@@
j
C.R.P.No.423 of 2004-F @@
j
—————————–@@
j
Dated this the 7th day of September, 2005@@
j
O R D E R@@
jCCCCCCCCC
((HDR 0
CRP423/2004
-#-@@
j
))
.HE 1
Bhaskaran, J.@@
AAAAAAAAAAAAA
.PL 56
This revision petition raises the question as to
whether the second defendant is a wakf and whether the
Wakf Tribunal has jurisdiction to try the suit. The
second defendant is admittedly a society registered under
the Societies Registration Act formed for charitable and
educational purpose. It is also governed by the rules of
any one of the sections of Muslim called Safi, Hanafi,
Hambali or Maliki.
2. Pursuant to a direction by this Court in
C.R.P.1846/2003 to the Wakf Tribunal, Ernakulam to decide
this question afresh the Tribunal considered it as a
preliminary issue and found that the second defendant is a
wakf and is subject to the jurisdiction of the Tribunal.
This revision petition is filed by the first defendant,
the President Darul Aman Islamic Complex, Kalladikode.
3. The suit is filed for the following reliefs:
1) To pass a decree declaring that the first@@
i
defendant is not legally entitled to continue as
Chairman of the 2nd defendant-Association.
2) To pass a decree directing the 2nd defendant to@@
i
convene meeting of general body by allowing the
members as on 5-7-2003 and excluding the members
admitted illegally by the first defendant by
making false entries in Minutes Book kept in
Police custody.
3) To pass a decree directing the 2nd defendant@@
i
to conduct the meeting of the Working Committee
and to discuss about the illegal action of the
first defendant and to take decision thereon.
4) To pass a decree appointing a Presiding@@
i
Officer to preside over the meeting of the general
body by ordering the said officer to conduct the
general body meeting with the members existed
prior to 5-7-2003.
5) To pass a decree directing the 3rd defendant@@
i
Wakf Board to appoint an officer to conduct audit
of the accounts of the 2nd defendant and to
recover the amounts due from the first defendant
and also to order initiating of prosecution
against the first defendant for illegal
misappropriation of Wakf fund.
6) To pass a decree declaring that any person@@
i
inducted as member by the first defendant is
having no right to participate in the meeting of
the 2nd defendant.
7) To pass a decree for permanent prohibitory@@
i
injunction restraining the first defendant from
discharging any function as Chairman of the 2nd
defendant-Association expending any amounts,
collecting any income, amounts, etc.
8) Grant such other reliefs as may be prayed for@@
i
and which this Honourable Tribunal deems fit and
proper in the interest of justice during the
course of the trial of this suit.
4. In the plaint it is stated that the plaintiffs
are the Working Committee Members and office bearers of
Darul Aman Islamic Complex which is a wakf registered
under the Literary and Charitable Societies Registration
Act. Though the nomenclature Islamic Complex is used, the
provisions in the byelaw clearly showed that it is a wakf
and the Managing Committee is a Muthawalli Committee. The
rest of the averments in the plaint relates to the
complaint against the first defendant and the attempts of
the plaintiffs to convene general body etc. which are not
very material for the decision of the issues involved in
this revision petition.
5. In the written statement the first defendant
contended that the 2nd defendant is not a wakf. The
properties are not registered with the Wakf Board. The
properties of the 2nd defendant have not been permanently
dedicated for the purposes recognised as pious, religious,
charitable with an intention to create wakf. The 2nd
defendant is a charitable society registered under the
Literary and Charitable Societies Registration act, 1860.
The Ist defendant is the founder President. The Ist
defendant and other founder members never intended to
establish a wakf institution and to dedicate the
properties as wakf. Since the 2nd defendant is not a
wakf, the Tribunal has no jurisdiction to try the suit.
The other averments in the plaint are also denied in the
written statement.
6. Therefore the question to be considered is
whether the Darul Aman Islamic Complex is a wakf. The
Tribunal has held that even though there is no express
dedication it can be validly found that the 2nd defendant
is a wakf by user. The learned counsel for the revision
petitioner contends that the Tribunal has totally
misunderstood the expression “Wakf by user” and the
finding that the 2nd defendant is a wakf is absolutely
wrong.
7. Ext.B1 is the byelaw of Kalladikode Darul
Islamic Complex Committee and Ext.B5 is the Memorandum of
Association dated 23-12-1988. A reading of Exts.B1 and B5
discloses the following aspects. In Ext.B1 the aims of
the society are to give protection to the orphans and give
them education religious, technical and professional and
to establish Yathimkhana, Arabic College, Mosque, Training
Institute, Health Care Centre, Madrassa, Nursery School
etc. The activities of the society will be based on the
faith of Asu Ari, Mathurithi and based on any one of the
tenets of the sections called Safi, Hanafi, Hambali or
Maliki. The disputes are to be settled on the basis of
decisions of the Pandits of Samastha Kerala Jam Iyyathul
Ulama. The life members have to contribute Rs.6,000/- and
ordinary members have to contribute Rs.51/- and must be
persons willing to abide by the byelaws. The income has
to be spent for the purposes above mentioned. In case the
society is to stop functioning the assets must vest in
some other institutions of the same objects or otherwise
it will vest in the State. It is with these provisions in
the byelaws that we have to consider the question as to
whether the 2nd defendant is a wakf or not.
8. A wakf is defined under Sec.3 (r) of the Wakf
Act 1995. It is a 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 a wakf by user, grant
and wakf-alal-aulad subject to the conditions mentioned in
the section. The basic thing for a wakf is dedication of
movable or immovable property for pious, religious or
charitable purpose. The Tribunal has found that though
there is no such dedication it can be treated as a wakf by
user. For that purpose the Tribunal has relied on the
decisions of this Court in Pookoya Haji Vs. Cheiyakoya@@
AAAAAAAAAAAAAAAAAAAAAAAAAAAA
(2003 (3) KLT 32). The question considered in that case@@
AAAAAAAAAAAAAAAAAA
was the scope of the power of the Tribunal. It is clearly
stated by the Division Bench that a wakf normally requires
express dedication, but if land has been used from time
immemorial for a religious purpose then the land becomes a
wakf by user. Can it be said in this case when the
society was formed in 1988 under a byelaw that the
property has been used from time immemorial? We are of
opinion that it cannot be said and the Tribunal was
clearly in error in placing reliance on a decision which
has no application to the facts of the case. As noticed
by this Court in Mariyumma Vs. Andunhi (1979 KLT 231) the@@
AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
creation of a wakf is the tying up of property in the
ownership of God the Almighty and the devotion of the
profits for the benefit of human beings. As a result of
the creation of a wakf, the right of wakif is extinguished
and the ownership is transferred to the Almighty. In this
case there is even provision for devolution of the entire
property to the State if the society is to extinguish and
there is no other similar organisation to which it can be
transferred. Though such a possibility is very remote and
almost nil it is an indicator to show that there is no
complete dedication of property to the Almighty.
9. The Supreme Court in Zain Yar Jung Vs.@@
AAAAAAAAAAAAAAAAAAAA
Director of Endowments (AIR 1963 SC 985) dealt with the@@
AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
distinction between public charitable trust, wakf and
religious endowments recognised by Hindu Law. In that
case since the beneficiaries were the general public it
was found to be not a wakf. In the present case there is
no dedication of any particular movable or immovable
property for religious or charitable trust. It is only
the objects of the trust that is mentioned in Ext.B5. The
qualification to become a life member or ordinary member
also is mentioned as contribution of certain amounts. In
that respect also it can be said that there is no wakf
created by Exts.B1 and B5. Though some decisions have
been referred to by the counsel on both sides they were
rendered under the Wakf Act, 1954 and after the new
enactment in 1995 they have lost relevance and therefore
we are not referring to them. But the fact remains that
even after the new Act the essential requirement of
permanent dedication of movable or immovable property for
pious, religious or charitable purpose is required. Since
even according to the Tribunal there is no express
dedication and it is a wakf by user and wakf by user can
be presumed only in case where a property has been used
from time immemorial for a religious purpose, we are of
the opinion that the Tribunal has gone wrong in holding
that the 2nd defendant is a wakf.
We therefore allow this Civil Revision Petition
and hold that the Tribunal has no jurisdiction to try the
suit. The parties shall bear their costs.
R.Bhaskaran, Judge.
K.P.Balachandran, Judge.
MS
……………………………………L…….T…….T………..T….J
R.Bhaskaran & @@
j
K.P.Balachandran, JJ.@@
j
————————-@@
j
C.R.P.No.423 of 2004@@
j
————————-@@
j
@@
j
@@
j
O R D E R@@
jCCCCCCCCC
@@
j
@@
j
7th September, 2005@@
j
@@
j
——————————
@@
j
@@
j
@@
j