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2012 DIGILAW 997 (KER)

KERALA STATE WAKF BOARD v. KASAM MOOSA SAIT WAKF-ALAL-AULAD

2012-11-12

BABU MATHEW P.JOSEPH, PIUS C.KURIAKOSE

body2012
JUDGMENT : Babu Mathew P. Joseph, J. This appeal is directed against the judgment rendered by a learned Single Judge in W.P. (C) No. 6187 of 2007. By the impugned judgment, the learned Single Judge set aside Ext. P2 series orders of assessment of contribution payable to the appellant, the Kerala State Wakf Board, from the respondent, Kasam Moosa Sait Wakf-al-al-aulad, and Ext. P4 order passed by the appellant in the appeal filed by the respondent. It is also declared in the impugned judgment that the appellant can make assessment only in respect of 10% of the income set apart as Wakf and not more. Aggrieved by the judgment of the learned Single Judge, the appellant has preferred this Writ Appeal. Heard Shri. A.A. Abul Hassan, the learned counsel appearing for the appellant and Shri. T.H. Abdul Azeez, the learned counsel appearing for the respondent, on the question of admission of this Writ Appeal. 2. The short question to be decided in this Writ Appeal is whether Wakf-alal-aulad evidenced by Ext. Pl document is a Wakf in respect of all the properties covered by Ext. P1 or to the extent to which the property is dedicated in Ext. P1 for pious, religious or charitable purposes. The learned single Judge found that only 10% of the income of the properties covered by Ext. P1 is Wakf. A Wakf is defined under S. 3(r) of the Wakf Act, 1995. The relevant portions of S. 3(r) read as follows: (r) "Wakf means the 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- (i) xxxx xxxx xxxx (ii) xxxx xxxx xxxx (iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, and 'wakif' means any person making such dedication; Therefore, for a Wakf-alal-aulad to be a Wakf under the Act, there should be a dedication of property for any purpose recognised by Muslim law as pious, religious or charitable and to the extent to which the property is so dedicated alone will be treated as Wakf. In other words, a mere creation of Wakf-alal-aulad will not be a Wakf unless that Wakf-alal-aulad dedicates property for any purpose recognised by Muslim law as pious, religious or charitable and only to the extent to which the property is thus dedicated alone will be a Wakf. 3. In the case on hand, the Wakf al-al-aulad has been created by Ext. P1 document. A reading of Clause 3 of Ext. P1 shows, in unequivocal terms, that 10% of the income after meeting the expenses described in it alone is dedicated for pious, religious or charitable purposes and rest of the income is meant for the benefit of the members of the family. Learned counsel for the appellant now submits that S. 3(r)(iii) refers to dedication of property and not income and hence, the entire properties covered by Ext: Pl should be treated as Wakf. This argument of the learned counsel for the appellant is far-fetched and unsustainable. The term 'property' used in the Section cannot be understood in that way. The term property shall be understood to include income derived from the property as well. Otherwise, the provision itself may become unworkable. Wakf includes a Wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable. Such pious, religious or charitable purposes are usually accomplished by way of expending income out of the property or properties. Therefore, the argument so advanced by the learned counsel for the appellant is only to be rejected and hence, we do so. We find no merit in this Writ Appeal. Therefore, it is dismissed.