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2020 DIGILAW 962 (KER)

A. v. Latheef VS Islamic Propagation Centre

2020-11-12

K.VINOD CHANDRAN, T.R.RAVI

body2020
ORDER : T.R. Ravi, J. An interesting question arises for consideration in this revision petition. The petitioner who had executed a document styled as a Wakf Deed and cancelled it later by another document, filed a suit before the Wakf Tribunal (hereinafter referred to as Tribunal) seeking to cancel the Wakf. He has been non-suited citing the principle "Once a Wakf, always a Wakf". We are called upon to examine whether the said principle is one which does not permit any exception. 2. The facts are uncontroverted since none of the respondents chose to contest the suit. The revision petitioner executed a document in favour of the 1st respondent, purporting to be a Wakf deed and got it registered as Document No.380 of 2010 of SRO, Payyoli (produced as Ext.A1 in the suit). Subsequently, he executed another document as document No.2075 of 2011, cancelling Ext.A1. The possession continued with the petitioner. The 1st respondent did not exercise any right of possession over the property nor were any steps taken to effect transfer of Registry. The petitioner thereafter approached the Tribunal praying for cancellation of the Wakf Deed. 3. The 1st respondent remained ex parte. The 2nd respondent Wakf Board did not file any written statement. By judgment dated 23.3.2015, the Tribunal dismissed the suit holding that the settled position of law is "Once a Wakf always a Wakf" and that the very definition of Wakf in Section 3(r) of the Wakf Act contemplates a permanent dedication. According to the Tribunal, the fact that the petitioner had not parted with possession is not of any consequence, having regard to the above settled principle of law. Aggrieved by the judgment of the Tribunal, the petitioner has filed this revision petition. Even though the 1st respondent was served a notice of this revision petition, they have not appeared, apparently for the reason that they have accepted the cancellation deed. 4. Heard Sri P.A.Harish on behalf of the revision petitioner and Sri T.K.Saidalikutty on behalf of the 2nd respondent. 5. Even though the 1st respondent was served a notice of this revision petition, they have not appeared, apparently for the reason that they have accepted the cancellation deed. 4. Heard Sri P.A.Harish on behalf of the revision petitioner and Sri T.K.Saidalikutty on behalf of the 2nd respondent. 5. The counsel for the petitioner relied on the decisions in Mohammed v. Mohammed Beke, reported in [ 1997(1) KLT 48 (SC)] and Garib Das and others v. Munshi Abdul Hamid and others reported in [ AIR 1970 SC 1035 ] in support of his contention that the Wakf has not taken effect by mere execution of Ext.A1, for the reasons that the possession remained with the petitioner and the property as described in the schedule to the document does not exist going by the description. 6. Section 186 (as is more often referred to) of Principles of Mahomedan Law by Mulla deals with the manner in which a Wakf is completed. Paragraph 186 reads thus: "186. Wakf how completed :- (1) A Wakf inter vivos is completed, according to Abu Yusuf, by a mere declaration of endowment by the owner. This view has been adopted by the High Courts of Calcutta, Rangoon, Patna, Lahore, Madras, and Bombay, and by the Oudh Chief Court. According to Muhammad, the Wakf is not complete unless, besides a declaration of Wakf, a mutawalli (superintendent) is appointed by the owner and possession of the endowed property is delivered to him [Hedaya 233; Baillie, 550]. At one time the High Court of Allahabad adopted this view, but a Full Bench decision of the Court has since decided that a mere declaration of endowment by the owner is sufficient to complete the Wakf. The Nagpur High Court has also adopted this view. (2) The founder of a Wakf may constitute himself as the first mutawalli (superintendent). The founder and the mutawalli being the same person, no transfer of physical possession is necessary, whichever of the two views is upheld. Nor is it necessary that the property should be transferred from his name as owner to his name as mutawalli. Such a transfer is not necessary even in Allahabad where the view of Muhammed prevails." 7. Faiz Badruddin Tyabji in his book Muslim Law (The personal law of muslims in India and Pakistan) (4th Edition) has dealt with the legal requirements for completion of a Wakf. Such a transfer is not necessary even in Allahabad where the view of Muhammed prevails." 7. Faiz Badruddin Tyabji in his book Muslim Law (The personal law of muslims in India and Pakistan) (4th Edition) has dealt with the legal requirements for completion of a Wakf. In Section 481 in page 509 of the book it is stated thus: "481.(1) Under Hanafi law a wakf is completed (a) according to Abu Yusuf, by the mere declaration (b) according to Imam Muhammead, only if, after the declaration, a mutawalli is appointed, and possession delivered to him. (2) Abu Yusuf's view has been adopted by most of the High Courts. Formerly the Allahabad High Court had given preference to Imam Muhammad's view, and there are dicta of the Privy Council favouring the necessity for transfer of possession. There is not (submitted) such a cleavage between the two views as may at first sight appear. (3) Under Shiite law a wakf is not completed unless either (a) possession of the wakf property is delivered to the first beneficiaries, or (b) they are authorised to administer it (s.511), or (c) where the dedication is for the benefit of a body of persons, a mutawalli is appointed, and possession is delivered to him. Explanation I.-The dedication being given effect to, or the wakf property being put to the uses to which it has been dedicated (especially where the wakif is himself expressly or impliedly appointed the first mutawalli) have the same legal effects as delivery of possession under s. 481(1), (3). Explanation II.-Where the declaration of a wakf is not acted upon by the wakif, and its objects not given efect to nor the property utilised for them, it may be presumed that the wakf was not completed; or that the wakif had no bonafide intention to create a wakf and did not divest himself of the ownership of the property : the presumption that the wakf was not completed may be very strong in favour of creditors. Explanation III.-After the dedication of wakf has been competed, its validity is not affected by the misfeasance of the mutawalli nor by the debts or liabilities of the wakif arising subsequently." 8. It can be seen from the above that there are two views available as far as the Hanafi law is concerned, regarding the manner in which a Wakf is completed. It can be seen from the above that there are two views available as far as the Hanafi law is concerned, regarding the manner in which a Wakf is completed. One view is that mere declaration is sufficient to complete the Wakf. Another view is that there must be delivery of possession. Going by the Shiite law, delivery of possession is a requirement for completion of the Wakf. It is possible to take a view that in the case of a Wakif appointing himself as the mutawalli, there is no requirement of a delivery of possession. But even in such cases, there is difference of opinion regarding the change of the nature of possession from that of an owner to that of a mutawalli. All the same, when the document is styled as a Wakf deed and is executed in favour of another person, necessarily going by the view of Mohammed, delivery of possession is required. 9. In Garib Das (supra), the Hon'ble Supreme Court held that "It is also settled law that the settler and those claiming under him are not precluded from showing that no wakf had been created and that the deed was not intended to operate as a Wakf but was illusory and fictitious. This is a question of intention evidenced by facts and circumstances showing that it was not to be acted upon." Mohammed (supra) arose from a judgment of this Court in a second appeal in Mohammad v. Mohammed Beke reported in 1993(2) KLT 1043 . A Single Judge of this Court, following the view of Abu Yusuf, held that mere declaration was sufficient to create a Wakf. In appeal, the Hon'ble Supreme Court held that the founder must declare his intention to dedicate the property for the mosque and must divest himself completely from the ownership of the property. It was further held that the divestment can be inferred from the fact that he delivered possession to the mutawalli or Imam of the mosque. It was further held that if there was no actual delivery of possession, the mere fact that members of the Mohammedan public are permitted to offer prayers with Azan and Ikmat does not make the Wakf complete and irrevocable. On facts, the Court found that the founder remained in possession and continued to take usufructs. It was further held that if there was no actual delivery of possession, the mere fact that members of the Mohammedan public are permitted to offer prayers with Azan and Ikmat does not make the Wakf complete and irrevocable. On facts, the Court found that the founder remained in possession and continued to take usufructs. Like in the case before us, in the case before the Supreme Court also a registered document was executed which contained an intention to create a wakf, the courts below had held that the Wakf had taken effect; and the same cannot be cancelled. The Apex Court held otherwise. We would also refer to some earlier views taken by different courts in India. 10. In paragraph 19 of the judgment in Khwaja Mahmud v. Khwaja Muhammad Hamid reported in [AIR 1917 Lahore 122], the Lahore High Court noted thus: "19. In Muhammad Aziz-ud-din Ahmad Khan v. Legal Remembrancer to Government [(1895) 15 All. 321.], the decision was that among Sunnis the creator of wakf must wholly divest himself of possession of the property concerned, and that the deceased owner, having merely executed and registered a wakf deed and not having parted with the possession of the land, which on his death was taken as by inheritance by his two sons, cannot be held to have created a wakf at all. And in Ghulam Hazrat v. Gulzari Mal [(1912) 15 I.C. 42.] it was held that a mere deed with no actual appropriation to religious purposes creates no wakf." 11. In paragraph 18 of the judgment in Mt.Bibi Kuniz Zainab v. Syed Moharak Hossain reported in [AIR 1924 Patna 284], the Patna High Court held thus: "18. Nor do I agree with the argument that the document must itself decide whether there was a change in the character of possession. In my opinion, transmutation of possession, or, (which is the same thing) change in the character of possession, is essentially a matter of evidence, and can only be decided on the evidence in the case. The argument assumed that whenever a wakif constitutes himself a mutwalli of the endowment, there is, by virtue of such constitution, a transmutation of possession, for there is, or can be, no other indication in the wakfnama that there is a change in the character of possession. The argument assumed that whenever a wakif constitutes himself a mutwalli of the endowment, there is, by virtue of such constitution, a transmutation of possession, for there is, or can be, no other indication in the wakfnama that there is a change in the character of possession. To take such a view is to ignore the distinction between change of ownership and change of possession both of which must have taken place before a wakf can be said to be perfectly created. All that the wakfnama in the present case does show is that the wakif has divested herself of all proprietary interest in the property endowed and constituted herself a mutwalli of the endowment. Such a declaration satisfies requiste No. 4 given in Mr. Ameer Ali's book. There is still requisite No. 3 to be satisfied before the wakf is complete; and there is no indication in the wakfnama that it has been satisfied, unless we regard her appointment as a mutwalli as leading to the inference that there was a transmutation of possession. Even assuming that Mr. Sultan Ahmad is right in his contention that the document itself must decide the question whether there has been a transmutation of possession, I do not think that the document throws any clear light on the point; and we must, therefore, go into the evidence to see whether, after the execution of the wakfnama, Bibi Asmatunnissa held possession as the mutwalli of the endowment." 12. Dealing with the Shiite law, the Privy Council had in the decision in Abadi Begum v. Kaniz Zainab reported in [ AIR 1927 PC 2 ] observed thus : "Before dealing with the plaintiff's right to recover the properties included in the wakfnamas executed by the deceased, it will be convenient to refer to the law governing the question. The Muhamadan law, which only allows a testator restricted powers of disposition ever his property, contains no such restriction as regards gifts inter vivos but does not recognise such gifts as valid unless-possession is given to the donee. This also applies to wakfs or gifts for religious or charitable purposes, at any rate among Shiahs. Further, in the case of wakfs or gifts for charitable purposes, the Shiah law imposes a further restriction that the wakif or settlor shall not retain for himself any interest in the subject of the gift. This also applies to wakfs or gifts for religious or charitable purposes, at any rate among Shiahs. Further, in the case of wakfs or gifts for charitable purposes, the Shiah law imposes a further restriction that the wakif or settlor shall not retain for himself any interest in the subject of the gift. This restriction, for which reasons of a religious character are assigned, undoubtedly operates as a check on the creation of wakfs not from purely religious motives, but with a view of defeating the rights of heirs and transmitting the possession and control of the settlor's property after his death to other persons in the character of mutawalis. It is not immaterial to note in this connection that the deeds now in question confer the office of mutawaili on the brothers of the settlor's deceased husband and make provision for the office remaining, in their families. This restriction is the last of the four conditions as to the validity of wakfs laid down in the Suraya, the leading Shiah authority, as follows: “(1) It must be perpetual; (2) absolute and unconditional; (3) possession must be given of the mowkoof of the thing appropriated and (4) it must be entirely taken out of the wakif or appropriator himself” (Baillie, “Digest of Pt. II,” p. 218). Elsewhere this last restriction has been expressed in direct and homely language by saying that the wakif must not eat, out of the wakf. The law is laid down to the same effect in the other authorities cited textually by Mr. Ameer Ali in his valuable treatise (Vol. I, p. 218, fourth edition)." 13. Applying the above principles to the facts of this revision petition, we find force in the contention of the revision petitioner that Ext.A1 document dated 21.1.2010, was not intended to be acted upon and that no Wakf has been created and completed by the mere execution of the document. The executant is not the Mutawalli. It is in evidence that the possession of the property has not changed hands and that no steps were taken to effect mutation of the property. A reading of the description of the property shown in Ext.A1 also clearly shows that the property is not identifiable and there is uncertainty regarding the property. The executant is not the Mutawalli. It is in evidence that the possession of the property has not changed hands and that no steps were taken to effect mutation of the property. A reading of the description of the property shown in Ext.A1 also clearly shows that the property is not identifiable and there is uncertainty regarding the property. The fact that the wakif never intended to create a Wakf is also clear from the fact that he himself thereafter sought to cancel the document; though the cancellation is relevant only by virtue of the other attendant circumstances. 14. On the question which we posed to ourselves, whether the principle "Once a wakf, always a wakf" does not permit any exception, we are of the considered opinion that the said principle cannot be applied as a thumb rule. However, it will apply in all cases where the creation of the Wakf is complete in all respects. Whether the creation of the Wakf is complete will necessarily depend on the facts of each case that may come up for consideration before the Court. For the reasons stated above, we allow the revision petition and decree the suit O.S.55 of 2013 on the file of the Wakf Tribunal, Kozhikode, as prayed for. The parties will bear their respective costs.