MOHAMMADversusMOHAMMED BEKE

A                                  MOHAMMAD
                                         y.
                               MOHAMMED BEKE

                               SEPTEMBER 6, 1996

B               (K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

          Wakf Act, 1954 :

           S. 2(1)--Certain properties given by appellant to his father for enjoy-
    ment auring life-After his demise the properties to be used for the purpose
C of Muslim famat Mosque-During life- time of his father, appellant cancelling
    the dee~Whether Wakf has been created-Courts below held that wakf had
    been created and appellant had no right to cancel the deed-On appeal held,
    the property was in exclusive possession and enjoyment of the father during
    his life time-There was no dedication and public was not allowed to have
D prayers on the property as mosque-During the lifetime of his father appellant
    cancelled the dee~Therefore, no Wakf has been created in resper;t of the
  . properties in question.

        Garib Das & Ors. v. Munshi Abdul Hamid & Ors., AIR (1970) SC 1035
  and Syed Mohd Salie Labbai (dead) by LRs. Ors. v. Mohd. Hanif (dead) by
E LRs. & Ors., [1976) 3 SCR 721, relied on.
           CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 12378-79
     of 1996.

          From the Judgment and Order dated 12.1.94 of the Kerala High
F    Court in R.P. No. 251/93 in S.A. No. 86/88-B.

           N. Sukumaran and G. Prakash for the Appellant.

           E.M.S. Anam for the Respondent.

           The following Order of the Court was delivered :
G
           Leave granted.

           Though the respondent has been served, no one appeared for him.
     We requested Shri E.M.S. Anam, learned counsel, to assist the Court as
     amicus wnae. We deeply appreciate the valuable assistance rendered by,
H    him in this case. The facts which are fairly not in dispute are as under :
                                         602
                      MOHAMMAD v. MOHD. BEKE                             603

        This appeal by special leave petition arises from the judgment and A
  order of the High Court of Kerala made on November 16, 1993 in SA No.
  86 of 1988 and the order made on 12.1.1994 in RP No. 251of1993 in SA
· No. 86/88. The admitted facts are that the appellant, as an owner of certain
  properties, had executed a regis~ered document in which he had mentioned
  that one acre 65 cents of land t9gether with building and trees standing on B.
  Survey No. 612/A situated in Manjalamkunnel Myloor Kara Varappetty
  Pakuthy was given to the father of the appellant for enjoyment during life
  of the usufruct derived from them. After his demise, the properties would
  be used for the purpose of Muslim Jamat Mosque. During the life time of
  the father, by another deed dated November 30, 1980 the above provision
  was cancelled. We are not concerned with other directions contained in C
  the document.

       The primary question for consideration is; whether by virtue of above
 provision mentioned in the registered document, wakf stood created under
 the Wakf Act, 1954? All the courts below, including the High Court,            D
 concurrently found that the wakf had been created and, therefore the
 appellant has no right to cancel the deed. The question, therefore, then is;
 whether wakf has been created under the Act? Section 2(1) of the Wakf
 Act, 1954 defin!:s 'Wakf as under;

         "2(1) 'Wakf means the permanent dedication by a person profess-        E
         ing Islam (or any other person) of any movable or immovable
         property for any purpose recognised by the Muslim law as pious,
         religious or charitable and includes -

         (i) a wakf user (but such wakf shall not cease to be a wakf by
         reason only of the user having ceased irrespective of the period of    F
         such cesser).

         (ii) grants (including mashrut-ul-khidmat (rnuafies, khairati, qqzi
         services, madad-rnash) for any purpose recognised by Muslim Law
         as pious, religious or charitable, and)
                                                                                G
         (iii). a wakf-alal-aulad.

         Provided that in the case of a dedication by a person not professing
         Islam, the Wakf shall be void if, on the death of such person, any
         objection to such dedication is raised by one or more of his legal H
    604                   SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.

A            representatives."

          Secti011 2(r) of the Wakf Act, 1995 also defines 'wakf in similar terms
    except the words "or any other person" which are omitted in the latter Act;
    however, the latter definition is not relevant for purpose of this case. Under
    the Hanafi law, a wakf can be made first in favour of the wakif himself,
B   descendants, kin etc. and then for other objects. According to Abu Yusuf,
    whose opinion has been adopted by the Hanif jurists in India, the wakif
    may lawfully retain the profits for himself. As regards the lawfulness of the
    wakfs in favour of one's descendants or kins, all the schools and jurists
    recognise the validity of such wakfs.
c
           In Galib Das & Ors. v. Munshi Abdul Hamid & Ors., AIR (1970) SC
    1035, one Tassaduk Hussain was the owner of the disputed house and he
    admittedly executed a deed of wakf on June 21, 1914 in respect of the same
    for the benefit of a mosque and Madrasa at Nathnagar and had the same
D   registered.Jn terms of the deed, the donor was to remain in possession of
    the hcmse as Mutawali and his wife was to be the Mutawali after his death.
    The documents provided that after the death of both the husband and wife,
    the Mutawali would be elected by the panchas of the Muslim community
    of Nathnagar and so long as the donor and his wife were living, they would
    maintain themselves from the income of the property and spend the
E   balance left for the mosqu·e and the Madrasa. The qm;stion, under those
    circumstances, arose; whether the wakf had been created? It is seen that
    the document, the wakf deed, was exclusively created. He parted with the
    possession as an owner and became a Mutawali thereunder, and, though
    he and his wife were enjoying the income derived from them and the
F   residue was utilised for maintaining the wakf, it was pleaded that wakf had
    been created and accordingly the Mutawali had no right to claim exclusive
    right as an erstwhile owner. This question was also considered elaboratedly
    by another Bench of two Judges of this Court in Syed Mohd. Solie Labbai
    (dead) by LRs. & Ors. v. Mohd. Ha11if (dead) by LRs. and Ors., (1976) 3
    SCR. 721. At page 746, this Court held thus :
G
              "It is not necessary for the dedication of a public mosque that a
            . Mutawali or a Pesh Imam should be appointed which could. be
              done later by the members of the Muslim community. All that is
              necessary is that there should be a declaration of the intention to
H           ,dedicate either expressly or impliedly and a divestment of his
                     MOHAMMAD v. MOHD. BEKE                               605

        interest in the property by the owner followed by delivery of            A
        possession. Here also the delivery of possession does not involve
        any ritual formality or any technical rule. For instance in the case
        of a mosque if the M ahomedans of the village, town or the area
        are permitted to offer their prayers either on the vacant land or
        in a mosque built for the said purpose that amounts to the delivery      B
        of possession and divestment and after the prayer have been
        offered the dedication btcomes complete. Unfortunately the
        Courts which decided the previous litigation between the parties
        do not appear to be aware of the considerations mentioned above."

      After an elaborate consideration of all the authorities on the subject,    C
this Court laid down three propositions as under :

        ''It would thus appear that in order to create a valid dedication of
        a public nature, the following conditions must be satisfied :

        (1) that the founder must declare his intention to dedicate a D
               property for the purpose of a mosque. No particular form of
               declaration is necessary. The declaration can be presumed
               form the conduct of the founder either express or implied;

         (2)   that the founder must divest himself completely from the
               ownership of the property, the divestment can be inferred         E
               from the fact that he had delivered possession to the
               Mutawalli or an Imam of the mosque. Even if there is not
               actual delivery of possession the mere fact that members of
               the Mahomedan public are permitted to offer prayers with
               azan ad ikamat, the wakf is complete and irrevocable; and         F
        (3) that the founder must make some sort of a separate entrance
               to the mosque which may be used by the public to enter the
               mosque."

      Ameer Ali at pages 279-80 has stated thus :
                                                                                 G
        "According to Abu Yusuf the right becomes extinguished by his
        merely declaring that he has made a particular property wakf and
        this is also the opinion of other Imams, viz. Shafei, Malik, Hombal
        and of universality of jurists, because the extinguishment of the
        right of property in wakf if like that in emanicipation .... According   H
    606                   SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.

A           to Abu Yusuf such consignment not being necessary, the wakf
            becomes complete by the mere declaration of the wakif that it
            constitutes wakf."

          At page 339, it is further stated thus :

B               "That the rule laid down by Abu Yusuf is the accepted doctrine
            has already been shown fromarntations from all the recognised
            works of law, such as the Fatawai Alamgiri, Fatawai Kazi Khan,
            Fath-ul-Kadir, Radd--ul-Muhtar, Ghait ul-Bayan, Tas-hil & and it
            is unnecessary, therefore, to go over the same ground again at any
            length. It may be convenient, however, to recapitulate as briefly as
c           possible the accepted principles on this branch of the question.

            (1) That a wakf Is valid and lawful by consensus.

            (2) That it becomes absolute and operative, according to Abu
D           Yusuf, immediately on the declaration of the wakf, in other words
            immediately upon his signifying the factum of the dedication.

            \:.1) That. no p~rticular words are necessary to create a wakf. So
            Jong as it is evidence from the context or the conduct of the wakf
            that a permanent dedication or settlement is intended, it is enough.
E
            (4) ·That a wakf may be made by a muslem in favour of an object
            whether terminable or otherwise not regarded as sinful in the
            Mussulman Law.

            (5) That where a wakf is made for objects that are terminable or
F           liable to extinction, the ultimate benefit will continue for the 'poor'
            even though it may not have been destined for them expressly. "

          At page 343, it is stated:

            "The principles of the Mussulman Law, it is submitted were rightly
G           apprehended in the case of Fatima Bibi v. The Advocate General.
            In this case, West, J. said as follows :

            "If the condition of an ultimate dedication to a pious and unfailing
               '
             purpose be satisfied, a wakf is not made invalid by an intermediate
H            settlement on the founder's children and their descendants." (It
                      MOHAMMAD v. MOHD. BEKE                            f/J7

         must be r.oted that this is by consensus, without any difference of A
         opinion between Abu Yousuf and Mohammed, according to Abu
         Yousuf, the law will presume the ultimate dedication to an unfail-
         ing purpose from the use of the word wakt)."

        It would thus be clear from the authorities cited above that the
  founder must declare his intention to dedicate the property for the mosque.· B
. A specific declaration is necessary. The founder must divest himself com-
  pletely from the ownership of the property. The diversment can be inferred
  from the fact that he delivered possession to the Mutawali or an Imam of
  t~e mosque. If there is no actual delivery of the possession, the mere fact
  that members of the Mohammedan public are permitted to offer prayers C
  with azan and ikamat does not make the wakf complete and i"evocable. The
  founder must also make some sort of way which may be used by the public
  to enter the mosque. From the facts, it is seen that the property was in
  exclusive possession and enjoyment of. the father during his life time
  enjoying the usufruct thereof. There was no dedication and public was not
  allowed to have any prayers on the property as mosque; nor the public had D
  access to it. During the life time of the father himself, the appellant had
  cancelled the deed. Under these circumstances, the necessary tests laid
  down by this Court have not been satisfied to conclude that a wakf has
  been created in respect of the above properties. The view of the courts
  below is not correct in law.                                                 E
        The appeals ate accordingly allowed. The suit ultimately stands
 dismissed. However, in the circumstances, there will be no order as to
 costs.

 G.N.                                                     Appeals allowed.     F