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1978 DIGILAW 322 (KER)

MARIYUMMA v. ANDUNHI

1978-12-01

K.K.NARENDRAN, V.BALAKRISHNA ERADI

body1978
Judgment :- 1. The two plaintiffs in O. S. No. 7 of 1973 on the file of the Subordinate Judge, Kasaragod are the appellants in this appeal. The suit was filed by them for partition of a 1/3 share in the plaint schedule property and for recovery of possession of the same with future mesne profits and costs. The lower court dismissed the suit upholding the contentions of the defendants that the suit property has been dedicated by way of wakf for religious and charitable purposes and that hence it is not partible. The correctness of the said finding is called in question by the plaintiffs in this appeal. 2. The 1st plaintiff is the daughter of Aboobacker, the 2nd plaintiff. Aboobacker (2nd plaintiff), the 1st defendant and the deceased husband of the 2nd defendant were brothers. The case of the plaintiffs is that under the registered partition deed evidenced by Ext. A2 dated 29th August, 1940 entered into between the aforesaid three brothers and the other members of the family the suit property along with two other items had been jointly allotted to the three brothers. The two other items of properties referred to above were later divided between the three brothers, but the suit property continues to be held by them in common. The 2nd plaintiff has executed a registered gift deed in respect of his 1/e share in favour of the Ist plaintiff and the suit has accordingly been instituted seeking allotment of a 1/e share in the suit property in favour of the 1st plaintiff on the basis that the plaint property belongs in "common to the 1st plaintiff, the 1st defendant and the 2nd defendant (in whose favour her husband had made a gift of his 1/e share). The common defence put forward by defendants No.1 and 2 was that under the partition deed evidenced by Ext. A2 there was a dedication of the plaint schedule property by way of wakf for the performance of the religious purposes mentioned in that document and that hence the plaint contention that the property belongs in common to the plaintiff and defendants Nos.1 and 2 is incorrect and the claim for partition of a 1/e share put forward by the plaintiffs is untenable. 3. The plaint schedule property is included in the C schedule in the partition deed Ext. A2. The original document is in Kannada language. 3. The plaint schedule property is included in the C schedule in the partition deed Ext. A2. The original document is in Kannada language. An English translation of the relevant recitals contained therein is amongst the records sent up to this court by the court below. It is stated in the document that the properties shown in schedules A, B and C are allotted to executants Nos. 4, 5 and 6 (the 2nd plaintiff, the 1st defendant and the husband of the 2nd defendant) jointly. It is further recited that from the income of the C schedule properties, "in accordance with our religious practice, for the religious good of our family and also for the salvation of the soul of our deceased ancestors Moulood should be read in the family house on the 12th of Rabiul Awal of each year and one chapter of the Quran should be recited in the family house every day. There is also a stipulation that the property should be free from alienation in favour of strangers and it should not be burdened with debts, attachments and injunctions and that it is subject to the above provisions that the property has been allotted jointly to Nos. 4, 5 and 6. 4. It is fundamental for the creation of a valid wakf that there should be a permanent dedication of the property forming the subject-matter of the wakf for any purpose recognised by the Musalman law as religious, pious or charitable. What is involved in the 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 wakf is extinguished and the ownership is transferred to the Almighty" (see Zain Yar Jung v. Director of Endowments, AIR 196e SC. 985 at 989) In the case before us, under the deed Ext. A2 there is no dedication, at all, of either the corpus or even the income of the property for any religious or charitable purpose. The ownership of the property is not transferred in favour of God the Almighty; on the other hand, it is expressly stipulated that the property shall remain as the joint property of executants Nos. A2 there is no dedication, at all, of either the corpus or even the income of the property for any religious or charitable purpose. The ownership of the property is not transferred in favour of God the Almighty; on the other hand, it is expressly stipulated that the property shall remain as the joint property of executants Nos. 4, 5 and 6 and they are to hold the property from generation to generation subject only to the restrictions that the property should not be alienated in favour of any strangers nor burdened with debts, attachments or injunctions and that from out of the income the recitation of Quran and reading of Moulood in the family house should be got performed. Since the basic requisite that there should be a permanent dedication of the property for religious or charitable purposes is not satisfied in the present case, it must be held that no valid wakf has been created in respect of the plaint schedule property under Ext. A2. We may also state that the reading of Moulood in the private residence of the family and recital of the Quran at the said place cannot by themselves, be regarded as objects for which a wakf can be validly created (see Kunhamutty v. Ahmad Musaliar, AIR. 19e5 Madras 29). The contrary view taken by Varadaraja Iyengar, J. in Koyamkutty v. Muhammad, 1957 KLT, 874, is based on a misunderstanding of the scope of the decision of the Madras High Court in Sattar Ismail v. Hqmid Sait. AIR. 1944 Madras 504. The relevant portion contained in the document that came up for consideration by the Madras High Court was one for the reading of the Quran in public places and also at private houses and not merely at the residential house of the wakif or any member of his family. The Madras High Court found on the construction of the said recital contained in the document that the reading of the Quran provided for therein was for the benefit of all Musalmans since it was to be performed by expending the funds of the wakf both in public places as well as in private houses. We are unable to regard this decision as an authority laying down that a provision for the reading of the Quran in the private house of the donor will constitute a valid object for creation of a wakf. We are unable to regard this decision as an authority laying down that a provision for the reading of the Quran in the private house of the donor will constitute a valid object for creation of a wakf. The observations to the contrary effect contained in Koyamkutty v. Muhammad, 1957 KLT.874, cannot, therefore, be regarded as laying down the correct law. 5. The conclusion that emerges from the foregoing discussion is that the plaint schedule property has not been made the subject-matter of a wakf but it continues to be the common asset of the plaintiff and defendants Nos.1 and 2 and is hence divisible at the instance of the plaintiffs. We accordingly allow this appeal and set aside the judgment and decree of the court below. The Ist plaintiff is granted a preliminary decree for partition and recovery of possession of a 1/e share in the plaint schedule property with future profits from the date of suit. The quantum of profits is left to be determined in the final decree proceedings. The appellants will get their costs of this appeal from the contesting respondents. The parties will bear their respective costs in the lower court.