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Madhya Pradesh High Court · body

2006 DIGILAW 174 (MP)

MADARSA TAKBIMUL QURAN v. FATIMA BI

2006-01-31

S.L.JAIN

body2006
Judgment ( 1. ) INVOKING revisional jurisdiction of this Court under Section 83 (9) of the wakf Act the applicants have filed this revision challenging the legality, validity and propriety of the order dated 11-1-05 passed by M. P. Wakf Tribunal, Bhopal in Case No. 789/05. ( 2. ) THE facts which led to filing of this revision may be shortly narrated thus; Plaintiffs filed a suit against the non-applicants stating that one Hazi Abdul razzak was a religious person. He was a stanch follower of Islam religion. He wanted that muslim children should get religious education. Parents and wife of abdul Razzak died during his life time. He had no heir to succeed him. He used to lead a lonely life. For the purpose of religious education of muslim children he dedicated his house No. 11 and 11/1 situated at Subhash Wad, Katni to the almighty and created a Wakf. He executed a document for that purpose and got the same registered. Since then the property in dispute was a wakf property. ( 3. ) HAZI Abdul Razzak nominated three persons namely Ameer baksh, Mohd. Bhai and Yusuf as the trustees and delivered them the possession of the house. During his life time Abdul Razzak himself used to teach Arbee language to the children. After the creation of the Wakf this job was handed over to trustees. The last trustee Ameer Baksh died in the year 1970. At the time of death of Ameer Baksh his son Jameel Ahmed alias Navab, defendant No. 6 who was illiterate was living with him. After the death of his father, Jameel Khan discharged the responsibilities of his father but with a view to grab the property he stopped the religious work and did not take care of the house in question as a result, the house ruined in the year 1980. Defendant No. 6 was the de-facto trustee. When the house in question ruined, he started living with defendants no. 1 to 5. ( 4. ) PLAINTIFFS also pleaded that when defendant No. 6 was not taking proper care of the Wakf property certain enlightened members of the muslim community made a search of wakf deed and started deliberations for the constitution of a new trust committee. When the house in question ruined, he started living with defendants no. 1 to 5. ( 4. ) PLAINTIFFS also pleaded that when defendant No. 6 was not taking proper care of the Wakf property certain enlightened members of the muslim community made a search of wakf deed and started deliberations for the constitution of a new trust committee. Because of the movements of the members of the muslim community, defendant No. 6 started claiming that the suit property is his ancestral property and made attempts to dispose of the property. On 31-8-84 defendant No. 6 executed a sale deed in favour of defendants No. 1 to 5. Defendants obtained an order of SDO for the demolition of the suit property. On a complaint being lodged by the plaintiffs proceedings under Section 145 Cr. P. C. were initiated and a criminal case No. 1071/8 was registered. Plaintiffs averred that presently house is in possession of the government. The suit property is recorded as Wakf property. Plaintiff therefore, filed this suit for the delivery of possession of the suit property, for recovery of rent of Rs. 1080/- and for compensation of Rs. 10,000/- for demolishing the wall of the suit house. ( 5. ) DEFENDANTS contested the suit by filing written statement stating that Abdl Razzak did not execute wakf deed on 5-1-1919. The document is a forged one. Arbee language was never taught in the suit house. The suit house is the ancestral property of defendants No, 6 and 7. They also pleaded that judgment in C. S. No. 50-A/84 which was delivered on 30-4-94 has the effect of res judicata. The registration of the suit property in the wakf board is illegal. The secretary of Board has no authority to register the property. ( 6. ) ON the pleadings of the parties, M. P. Wakf Tribunal framed as many as 14 issues and recorded a finding that the suit property was not dedicated by wakf deed. In fact the document is a trust deed. Hazi Abdul Razzak appointed ameer Baksh, Mohd. Bhai and Mohd. Yunus as trustees. The property was registered by wakf board as wakf property subject to the decision of civil suit pending at Katni. The registration was conditional and dismissed the plaintiffs suit. ( 7. ) IT is this judgment of the Tribunal which is the cause of grievance of the applicants. ( 8. Bhai and Mohd. Yunus as trustees. The property was registered by wakf board as wakf property subject to the decision of civil suit pending at Katni. The registration was conditional and dismissed the plaintiffs suit. ( 7. ) IT is this judgment of the Tribunal which is the cause of grievance of the applicants. ( 8. ) I have heard Shri Mohd. Yunus Counsel for applicants and Shri a. P. Pandey Counsel for respondents. ( 9. ) LEARNED Counsel for applicants vehemently submitted that the finding of the Tribunal that document Ex. P. 3 is a trust deed and did not create any wakf is erroneous. ( 10. ) THE contention is not acceptable. A Hindi typed copy of the deed in question marked as Ex. P. 3 has been filed in the record of this revision. At many places the word trustian has been used in the document. Some of the sentences used in the document are reproduced. ( 11. ) B. R. Verma in his celebrated book Commentaries on mohammedan Law (In India, Pakistan and Bangladesh) has tried to draw a distinction between Wakf and a trust in the following words:- "trusts, as distinguished from wakfs are recognised by mohammedan law. The conception of a trust part from gifts was introduced in India with the establishment of the Muslim rule. The points of distinction are-Trust wakf (1) No particular motive is (1) necessary. It is generally made with a pious, charitable or religious motive. (2) The founder may himself (2) be a beneficiary. The wakf cannot reserve any benefit for himself (except to some extent under Hanafi law) (3) It may be for any lawful (3) object. The ultimate object must be some benefit of mankind. (4) The property vests in the (4) trustee. The property vests in God. (5) A trustee has got larger (5) power than a mutwalli. A mutawalli is only a manager or superintendent. (6) It is not necessary that a (6) trust may be perpetual, irrevocable or inalienable. A wakf is perpetual, irrevocable and inalienable. (7) It results for the benefit of the founder when it is incapable of execution and the property has not been exhausted. (7) The cypres doctrine is applied and the property may be applied to some other object. " ( 12. ) FOR the creation of Wakf the property vests in god. From the contents of Ex. (7) It results for the benefit of the founder when it is incapable of execution and the property has not been exhausted. (7) The cypres doctrine is applied and the property may be applied to some other object. " ( 12. ) FOR the creation of Wakf the property vests in god. From the contents of Ex. P-3 it does not appear that the property vested in god. The trust was created for giving education of Arbee language. Since the trust was created and not the wakf, it can be covered by the law of trust and not Mohammedan law of Wakf. ( 13. ) LEARNED Counsel for the applicant vehemently submitted that the trust was created with a pious, charitable or religious motive. Amathersa was to be established for teaching Quran. ( 14. ) THE contention is not acceptable. Document Ex. P-3 does not reveal that the trust was created for teaching Quran. It was created for teaching arbee language. ( 15. ) IT is true that the name of the school was takbimul Quran but when it is specifically mentioned in the document that the property was dedicated for the purpose of teaching Arbee language and it is not mentioned that the school was established for teaching Quran, merely because the name of the school was Talimul Quran it cannot be said that the school was established for teaching Quran only. ( 16. ) THE Trial Court has given convincing reasons for recording a finding that the document Ex. D-3 is a trust deed and not wakf. Section 3 (1) of the Wakf Act, 1995 defines wakf as a permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable among other specific dedications. Section 3 (a) defines beneficiaries to mean a person or object for whose benefit a wakf is created and includes religious, pious and charitable objects and*any other objects of public utility sanctioned by the muslim law. Under Muslim Law a wakf should have a religious motive and it should be only for the benefit of the Muslim community. If it is secular, the charity should be to the poor alone. ( 17. ) A perusal of Ex. Under Muslim Law a wakf should have a religious motive and it should be only for the benefit of the Muslim community. If it is secular, the charity should be to the poor alone. ( 17. ) A perusal of Ex. D-3 reveals that the property was dedicated for teaching Arbee language for all persons irrespective of their caste, creed or religion and whether they are rich or poor, therefore, the dedication was not a wakf. ( 18. ) IN The Karnataka State Board of Wakfs Vs. Mohd Nazeer Ahmed and another, AIR 1982 Karnataka 309, a Division Bench of Karnataka High court observed thus:- "under Muslim Law a Wakf should have a religious motive and it should be only for the benefit of the Muslim Community. " ( 19. ) WHILE drawing a distinction between Wakf recognized by Muslim law and public charitable trust as contemplated by English Law the Apex Court in Nawab Zain Yar Jung Vs. Director of Endorsements, AIR 1963 SC 985 , observed thus:- "it is thus clear that the purpose for which a Wakf can be created must be one which is recognized by Muslim Law as pious, religious or charitable and the objects of public utility which may constitute beneficiaries under the Wakf must be objects for the benefit of the muslim community. " ( 20. ) IN document Ex. P-3 the property was transferred to the trustees. The legal title in respect of the subject matter of the trust vests on the trustees. The board features of the document are wholly inconsistent to the notions of wakf. The impression which the document creates is that the settler wanted to create a trust for teaching Arbee language and its object was secular. The dominant intention of the settler was to teach Arbee language to all the persons not confined to any caste, religion or creed. ( 21. ) IN my opinion, the elementary rule of construction that is preferred while construing a document is that the language used in the document should be given importance. The language used in the document undoubtedly supports that the document was executed to create a public charitable trust and not a wakf. The Trial Court has given the detailed reasons for coming to the conclusion that the document is a trust deed and not Wakf. ( 22. ) THE Court below analyzed the factual material properly. The language used in the document undoubtedly supports that the document was executed to create a public charitable trust and not a wakf. The Trial Court has given the detailed reasons for coming to the conclusion that the document is a trust deed and not Wakf. ( 22. ) THE Court below analyzed the factual material properly. The finding of the Court below is based on proper appreciation of the evidence and cannot be lightly brushed aside by this Court. The appellate Court should always bear in mind that if the finding of the Trial Court is reasonably sustainable on evidence on record, it should not be interfered with normally except for very cogent reasons. ( 23. ) LEARNED Counsel for respondent vehemently submitted that it is the case of the applicant that teaching of Arbee language continued in the suit house till the year 1970 but there is no evidence to that effect. Not a single person has been examined to prove that he was taught Arbee language in takbimul Quran in the suit-house. The person who learnt Arbee language in the said institution could have been the best person to give evidence regarding the teaching and purpose of institution but not a single such person has been examined. ( 24. ) THE contention is acceptable. The respondent has not examined any person who learnt Arbee language in the aforesaid institution established by haji Abdul Razzak. In the absence of satisfactory evidence it cannot be said that haji Abdul Razzak created a wakf. ( 25. ) LEARNED Counsel for the applicant lastly contended that accepting the document to be trust deed it does not give any title or interest to defendants no. 6 and 7. They had no right to transfer the property to defendants No. 1 to 5. ( 26. ) THE contention is not acceptable. Once it is held that the property is not a Wakf property, the plaintiffs have no authority to challenge the rights of defendants No. 1 to 7. The person affected by the transactions may be at liberty to challenge the rights of the defendants. Plaintiff does not have any right to challenge the rights of defendants No. 1 to 7 as they have failed to prove that the property in dispute is a Wakf property. ( 27. The person affected by the transactions may be at liberty to challenge the rights of the defendants. Plaintiff does not have any right to challenge the rights of defendants No. 1 to 7 as they have failed to prove that the property in dispute is a Wakf property. ( 27. ) FOR the reasons stated above, I do not find any error in the judgment of the Trial Court and the same is upheld. The revision is, sans merit and the same is therefore, dismissed. Civil Revision dismissed.