U.P. SUNNI CENTRAL BOARD OF WAKFSversusMAZHAR HASAN AND ORS.

               U.P. SUNNI CENTRAL BOARD OF WAKFS                                 A
                                      V.

                      MAZHAR HASAN AND ORS.

                             AUGUST 9, 2001

          [S. RAJENDRA BABU AND D.P. MOHAPATRA, JJ.]                             B


      U.P. Muslim Wakfs Act, 1960 : Sections 29(8)and 33.

      Wakfs-Coming into existence of-Certain properties constructed out of
donations given by Musa/man public-Purpose of donation was charitable C
and religious-Such properties registered as wakf-High Court set aside
registration-Correctness of-Held: If property is purchased for charitable,
pious or religious purposes out of donations given by general pubic such
property does not lose the character of a 'wakf'-Therefore, such property
acquires a permanent character-Hence, High Court not justified in setting D
aside the registration.

      Words and Phrases:

      "Walf'-Meaning of-In the context of U.P. Muslim WakfS Act, 1960.

      The respondents made a reference under Sections 29(8) and 33 of the
                                                                                 E
U.P. Muslim Wakfs Act, 1960 for cancellation of registration of the suit
property as wakf. The reference was resisted by the appellant on the grounds
that the land in question was purchased from the subscription given by
Musa/man public and building was also constructed out of such donations given
by the general public; that the purposes of the collections of this fund or      F
donation made by Musa/mans in general was a charitable one, namely, the
construction of Muslim Musafirkhana; that in order to relieve them from the
shortage of accommodation and for religious purpose a Mosque was also
constructed within the Musafirkhana; and that, therefore, the registration was
in accordance with law. The Tribunal allowed the reference and set aside the
registration. High Court affirmed the view taken by the Tribunal. Hence this     G
appeal.

     Allowing the appeal, the Court

     HELD: 1. If a property is set apart for a definite purpose, such property   H
                                    379
     380                        SUPREME COURT REPORTS (2001] SUPP. 1 S.C.R.

A   would become 'dedicated' for a purpose. It cannot be said that it is only in
    cases when an individual divests himself of the properly and after declaration
    of trust it is binding on the settlor with the object for which the property
    thereafter is to be held. If out of the monies given by the general public a
    property is purchased for a public purpose, which is religious or charitable
B   in character, such property will not lose the character of a 'wakr as defined
    under the U.P. Muslim Wakfs Act, 1960. The object for which the property
    in question has been set apart or dedicated is charitable, pious or religious in
    nature and, therefore, the dedication was complete and it could not be divested
    for any other purpose. Therefore, when the property can be used only for
    religious or charitable purposes it acquires a permanent character. The High
C   Court is, therefore, not justified in holding that the cancellation of registration
    by the Tribunal is in order. (382-C, D, E]

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11988 of
    1995.

D        From the Judgment and Order dated 11.4.94 of the Allahabad High
    Court in C.R. No. 595 of 1978

            Shakil Ahmed Syed for the Appellant.

            Irshad Ahmad for the Respondents.
E
           The Judgment of the Court was delivered by

           RAJENDRA BABU, J. On the registration of certain properties as
     wakf a reference was made by the respondents under Section 29(8) and
     Section 33 of the Uttar Pradesh Muslim Wakfs Act, 1960 [hereinafter referred
F    to as 'the Act'] for cancellation of registration. The property in question is
    stated to be a Muslim Musafirkhana situate in Kazipura, City Bahraich,
    consisting of 24 rooms, one court-yard, varendah, open land, passage, four
    shops, office room and some portion under construction indicated in the
    plaint and there exists within that accommodation a Mosque but that had not
    been included in the plaint. The case put forth by the respondents is that the
G   property in question was owned by a Society of which the respondents have
    been office bearers; that they have been in possession of the suit property;
    that they purchased the said land, on which the accommodation exists, on
    October 18, 1966 for a sum of Rs. 6, I 00 from two ladies and thereafter got
    the Musafirkhana constructed on that land; that the provisions of Sections 29
H   to 33 of the Act did not apply and so the registration of property in dispute
    U.P. SUNNI CENTRAL BOARD OF WAKFS 1•. MAZHAR HASAN [RAJENDRA BABU, J.J38 !

as wakf had been illegal, null and void. The reference was resisted by the          A
appellant on the grounds that the land in question was purchased from the
subscription given by Musalman public and building was also constructed
out of such donations given by the general public; that the purpose of the
collections of this fund or donation made by Musalmans in general was
charitable one, namely, the construction of Muslim Musafirkhana; that in            B
order to relieve them from the shortage of accommodation and for religious
purposes a Mosque was also constructed within the Musafirkhana; that,
therefore, the registration was in accordance with law.

      The Tribunal held that the Mosque is part and parcel of Musafirkhana
and has got a religious purpose and the Musafirkhana is meant for charitable        C
purposes and is also of a religious character by the reason of the existence
of a Mosque as a part and parcel of Musafirkhana. However, on the basis that
the property alleged to be wakf property should be proved to have been
dedicated permanently by one professing Musalman faith and the purposes of
dedication must be proved to be religious, pious and charitable, it is only in
such a case wakf may be said to have come into existence and in the absence         D
of proof of dedication by a dedicator having Muslim faith the property in
dispute could not be said to be wakf property and cannot be deemed to be
wakf property, the Tribunal allowed the reference and set aside the registration.
The matter was carried by way of revision petition to the High Court which
affirmed the view taken by the Tribunal and dismissed the revision petition.        E
Hence this appeal by special leave.

       The High Court recorded the following finding :-

       "In the present case, creation of or construction of a Musafirkhana
       for the Muslim public can be said to be benevolent, pious and
       charitable object beyond any doubt as has been found by the court            F
       below. It may even be religious one, i.e., the purpose for which the
       subscriptions were demanded from people. The object of or purpose
       of subscription, i.e., the construction of Musafirkhana, no doubt, is
       pious, charitable and religious but the other ingredients, as I have
       mentioned earlier, are that there should be voluntary dedication and         G
       dedication should be one made by persons professing Musalman faith.
       In the present case, the evidence on record as found by the court
       below as well indicates that a meeting was called for and money
       came from subscription from the people of Bahraich after the appeals
       had been issued demanding the subscription. Ext. A 12 - on record is
       the appeal which had been issued demanding donations and in                  H
!1




         382                        SUPREME COURT REPORTS [2001) SUPP. I S.C.R.

     A            pursuance thereof money came from the public of Bahraich as per
                  deposition of P.W. 1 Nizamuddin and other witnesses those who
                  offered subscription or donations. There is no evidence that they
                  made donations with the intent to derive spiritual benefit."

              The High Court is of the view that the dedication carries with it an idea
     B of voluntary self donation without any demand or appeal for the same and
       that subscription or donation made on appeal being made by people. at large
       cannot be taken to be the donation of property of permanent character which
        is the essential ingredient of the definition of 'wakf under the Act. If a
       property is set apart for a definite purpose, such property would become
     C 'dedicated' for a purpose. It cannot be said that it is only in cases when an
       individual divests himself of the property and after declaration of trust it is
       binding on the settlor with the object for which the property thereafter to be
       held. If out of the monies given by the general public a property is purchased
       for a public purpose which is religious or charitable in character, we do not
       think, such property will lose the character of a 'wakf as defined under the
     D Act. The finding reached by the High Court, by affirming the view tak.,,1 by
       the Tribunal, itself indicates that the object for which the property in question
       has been set apart or dedicated is charitable, pious or religious in nature and,
       therefore, the dedication was complete and it could not be divested for any
       other purpose. Therefore, when the property can be used only for religious
     E or charitable purposes it acquires a permanent character. In that view of the
       matter, we do not think, the High Court is justified in holding that the
       cancellation of registration by the Tribunal is in order. The order of the High
       Court affirming the order of the Tribunal is set aside and the reference made
       by the respondents shall stand dismissed.

     F         The appeal is allowed accordingly. No costs.

         v.s.s.                                                       Appeal allowed.