Allahabad High Court

S.A.Khan vs State on 23 May, 2012

Bench: Sudhir Agarwal

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. - 2

Case :- WRIT - C No. - 26229 of 1992

Petitioner :- Shahzad Ahmad Khan

Respondent :- State of U.P. and others

Petitioner Counsel :- S.U.Khan,Manish Goel

Respondent Counsel :- S.C.

Hon'ble Sudhir Agarwal, J

1. Heard Sri Manish Goel, learned counsel for petitioner and learned Standing Counsel for State-respondents.

2. It is not in dispute that Gata No. 442 and 456 were property relating to Wakf. It was a Wakf-alal-aulad and established/commenced on 7.4.1920.

3. Earlier appellate authority by order dated 24.8.1987 set aside Prescribed Authority's order with clear instructions that the proportion of beneficiaries of Wakf has to be ascertained by Prescribed Authority and thereafter it shall decide the matter. The relevant observations read as under:

^^tgka rd ykHkkfFkZ;ksa ds va'kksa dk iz'u gS] nksuks i{k ;g ekurs gSa fd bl fo"k; ij fof/kor leh{kk voj U;k;ky; }kjk ugh dh xbZ gS] vr% ml fo"k; ij iqu% lquokbZ dh tkuh vko';d gSA^^

4. Pursuant thereto, Prescribed Authority passed order on 29.4.1988 again rejecting the objection with regard to shares in waqf property. The matter was taken in appeal by petitioner and the same was allowed on 28.2.1990 setting aside Prescribed Authority's order dated 29.4.1988 and the matter was remanded with direction to comply the earlier appellate order. Again the Prescribed passed the order dated 6.8.1991 observing that after shares of Waqf property stood distributed to the beneficiaries, and, more so after consolidation proceedings, Wakf, even if it was for quite sometime, came to an end. The property stood transferred to the beneficiaries as their individual property, hence question of determination of share relating to Wakf property would not arise and need not be examined.

5. The said order was confirmed in appeal by order dated 16.7.1992 rejecting petitioner's appeal.

6. The very basic premise of Prescribed Authority that the Wakf, after distribution of shares to the beneficiaries came to an end itself is patently illegal inasmuch it is well settled that once a wakf, it is always a wakf . The property under wakf may reduce vis-a-vis the individuals managing the property but once a wakf is created, the nature of property will not change and it will continue to remain as Wakf.

7. A Special Bench of this Court in Sunni Central Board of Waqfs Vs. Sri Gopal Singh Visharad and others 2010 ADJ Page 1 (SFB)(LB) in the judgment delivered by myself observed as under:

"The creation of waqf was held valid and lawful by the Prophet Mohammad. It is said that this rule was laid down by Prophet himself and handed down in succession by Ibn Abu Nafe and Ibn Omar. Omar got piece of land in Khaiber whereupon he came to the Prophet and sought his counsel to make the most pious use of it. The Prophet said "if you like you may make a waqf of it, as it is, and bestow it in benification". Omar thereupon bestowed it in charity on his relatives, the poor and slaves and in the path of God, and travellers in a way that the land itself might not be sold, nor conveyed by gift, nor inherited. It is said that waqf continued in existence for several century until the land became waste."(Para 1087) (emphasis added)

8. It is not in dispute that waqf in question in the case in hand is a waqf-alal-aulad and admittedly commenced on 7.4.1920. Accepting the claims of Muslims in India, Mussalman Waqf Validating Act, 1913 (hereinafter referred to as the "Act, 1913") was enacted to validate the waqf created for the benefit of the members of family i.e. waqf-alal-aulad. This Act came into force on 07.03.1913. The preamble of Act, 1913 shows that it was enacted to declare the rights of Muslims to make settlements of property by way of waqf in favour of their family, children and decedents. The term "waqf" was defined in Section 2 (1) as under :

"2. .......................

(1) "Waqf" means the permanent dedication by a person professing the Mussalman faith of any property for any purpose, recognized by the Mussalman law as religious, pious or charitable." (emphasis added)

9. Taking into account the above definition of "Waqf" the Special Bench in Sunni Central Board of Waqfs (supra) in para 1102 of judgment observed as under:

"... a waqf therefore is an unconditional and permanent dedication of property with implied detention in the ownership of God in such a manner that the property of the owner may be extinguished and its profit may revert to or be applied for the benefit of mankind except for purposes prohibited by Islam."

(emphasis added)

10. The Special Bench further in Sunni Central Board of Waqfs (supra) in paras 1103-1104 of judgment noticed the distinction of Waqf from Sadaqah, Hiba and trust, as identified in Islamic Law- Personal by B.R.Verma first published in 1940 (6th Edition published in 1986) (reprinted in 1991 by M.H.Beg and S.K.Verma) (page 630-631) as under:

Sadaqah

Wakf

(1)The corpus itself may be consummed.

(2)It is only a donation.

(3)The legal estate and not merely beneficial interest passes to charity to be held by trustees appointed by the donor. The trustee can dispose of the corpus itself.

(1)The income only can be sent.

(2)It is an endowment.

(3)The legal estate is transferred to God. It does not vest in the trustee or mutawalli who cannot deal with the corpus.

Hiba

Wakf

(1)It relates to absolute interest in the subject of the gift, the donee having a right not only to spend the usufruct but also the property itself.

(2)The donee is a human being.

(3)There are no limitations as to the object for which it can be made.

(4)A hiba to an unborn person is invalid.

(1)It is only the usufruct which can be spent and the corpus cannot be disposed of except under very limited conditions.

(2)The ownership is transferred to God.

(3)It is made for the benefit of mankind.

(4)A wakf may be made in favour of a succession of unborn persons.

Trust

Wakf

(1)No particular motive is necessary.

(2)The founder may himself be a beneficiary.

(3)It may be for any lawful object.

(4)the property vests in the trustee.

(5)A trustee has got larger power than a mutawalli.

(6)It is not necessary that a trust maybe perpetual, irrevocable or inalienable.

(7)It results for the benefit of the founder when it is incapable of execution and the property has not been exhausted.

(1)It is generally made with a pious, charitable or religious motive.

(2)The wakf cannot reserve any benefit for himself (except to some extent under Hanafi law).

(3)The ultimate object must be some benefit of mankind.

(4)The property vests in God.

(5)A mutawalli is only a manager or superintendent.

(6)A wakf is perpetual, irrevocable and inalienable.

(7)The cypres doctrine is applied and the property may be applied to some other object.

11. In view of above, it is clear that once a waqf is created, its nature will not change until the property is waste. Since the very basic foundation on which the impugned order has been passed is incorrect and contrary to law, it is evident that authorities below have not considered the matter in the light of appellate authority's remand order dated 24.8.1987 (Annexure 1 to writ petition).

12. In the result, writ petition is allowed. Orders dated 6.8.1991 and 16.7.1992 (Annexures 4 and 5 to writ petition) are set aside. The matter is remanded to Prescribed Authority to re-consider in the light of appellate order dated 24.8.1987 and observations made above and pass a fresh order after giving due opportunity to all concerned parties expeditiously but not later than three months from the date of production of certified copy of this order.

13. Petitioner shall also be entitled to cost which I quantify to Rs. 5,000/- (Rs. five thousand).

Dt. 23.5.2012

Hon'ble Sudhir Agarwal, J.

Heard.

Cause shown for delay in filing substitution application is sufficient.

Delay in filing substitution application is condoned.

This application, accordingly, stands allowed.

Dt. 23.5.2012

PS-26224/92

(Delay Condonation Application)

Hon'ble Sudhir Agarwal, J.

Learned Standing counsel appearing on behalf of respondents do not propose to file any objection but advanced his oral submission.