HAJI AMOO MUSLIAR and others v. MANGALPADY SALAMATHUL ISLAM JUMA MASJID THOTA and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID TUESDAY, THE 10TH DAY OF APRIL 2012/21ST CHAITHRA 1934 SA.No. 166 of 1999 (C) ---------------------AS.146/1996 of SUB COURT, KASARAGOD OS.347/1986 of PRL.MUNSIFF COURT, KASARAGOD APPELLANTS/APPELLANTS 1 TO 3/DEFENDANTS 1 TO 3: -------------------------------------------------------------- 1. HAJI AMOO MUSLIAR, S/O.ANDUNHI BEARY, CHERUGOLI MANGALPADY VILLAGE AND POST, KASARAGOD TALUK. 2. IDDINKUNHI, S/O.ANDUNHI BEARY, -DO-DO-DO- 3. ISABI, W/O.KANDIGE SHAHUL HAMEED HAJI, BENGAPADAVU, ENMAKAJE VILLAGE P.O., PERLA, KASARAGOD TALUK. - BY SRI.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE ADV.SRI.S.ANANTHAKRISHNAN ADV.SRI.N.K.SUBRAMANIAN RESPONDENTS/RESPONDENTS 1& 2 & APPELLANTS 4 & 5/ PLAINTIFFS & DEFENDANTS 4 & 5: ---------------------------------------------------------------- 1. MANGALPADY SALAMATHUL ISLAM JUMA MASJID THOTA, REPRESENTED BY THE PRESIDENT MOOSA, S/O.MAMMUNHI, RESIDING AT THOTA, MANGALPADY VILLAE & POST KASARAGOD TALUK. 2. MANGALPADY JUMATH MOSQUE REPRESENTED BY THE MUTHAVALLI, MOOSA, S/O.MAMMUNHI, THOTA, MANGALPADY VILLAGE & POST KASARAGOD TALUK. 3. MUTHUBI, W/O.ANDUNHI, KAMBAR, KUDALMERKALA VILLAGE AND POST, KASARAGOD TALUK. 4. ISABI, W/O.POKAR BEARY, ICHALANGOD VILLAGE AND POST KASARAGOD TALUK. BY ADV. SRI.T.H.ABDUL AZEEZ FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2012, THE COURT ON 10-04-2012 DELIVERED THE FOLLOWING: SA.No. 166 of 1999 © ## ORDER ON C.M.P.NO.690/1999 DISMISSED. 10.4.2012 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. ## **HARUN-UL-RASHID, J. -----------------------S.A.No.166 Of 1999** ## **---------------------Dated this the 10[th] day of April, 2012.** ## **J U D G M E N T** The substantial questions of law formulated in the appeal are as follows: _A. Do the terms of Ext.A1 deed indicate the proper conditions for a valid Wakf since there is no dedication and vesting of the rights in the properties, in God._ _B. Plaintiffs being not parties to Ext.A1 and not being the beneficiaries under the same and not being connected with the same can they maintain the present suit._ _C. Since the plaint does not disclose how the plaintiffs have the right to file the suit and the basis on which it can be maintained, should not have the suit been dismissed._ _D. Have not the courts below erred in appreciating the contentions of the appellants relating the rights of the plaintiffs to file the suit._ _E. When the plaintiffs have no cause of action and no locus standi to file the suit, can the suit be entertained and can the decree be justified._ 2. Defendants 1 to 3 are the appellants. The appeal is directed against the judgment and decree in A.S.No.146/1996 on the file of the Sub Court, Kasaragode, arising from **::2::** ## **S.A.No.166 Of 1999** O.S.No.347/1986 on the file of the Munsiff Court, Kasaragod. Suit was filed for realisation of money. The trial court held that the plaintiff Masjid is a legally constituted body and has legal status to maintain the suit, that the plaintiff has got the right to enforce Ext.A1 Wakf deed against the defendants and that the plaintiffs are entitled to realise the 'D' schedule amount from the defendant. Suit was decreed directing defendants 1 to 5 to pay Rs.6,180/- to the plaintiffs with future interest @ 6% per annum. The appeal preferred by defendants 1 to 5 was dismissed confirming the findings of the trial court and dismissed the suit with costs. The parties hereinafter are referred to as the plaintiffs and defendants as arrayed in the suit. 3. The 1[st] plaintiff Juma Masjid is represented by the President of the Managing Committee. The 2[nd] plaintiff is the Jamath Mosque represented by its Muthavally. Plaint 'A' schedule property originally belonged to one Aisamma, W/o. Kambar Abdul Rahiman Haji. She had executed Ext.A1 deed styled as 'Wakf deed' dated 21.12.1899 in respect of the property scheduled in the deed for the purpose of performing viniyogas. The document **::3::** ## **S.A.No.166 Of 1999** was executed in favour of the predecessors-in-interest of the defendants directing them to possess and enjoy the properties for the purpose of performing the viniyogas mentioned therein. Viniyogas have to be performed by the persons named in Ext.A1 Wakf deed and after their death by their lenial descendants. Suit was instituted alleging that the defendants, who are the successors-in-interest of the two persons named in Ext.A1 Wakf deed, failed to perform the viniyogas from the year 1972 onwards, that the plaintiffs are the Muthavallies of the Mosque, that under Ext.A1 'Wakf deed', the properties were entrusted in favour of two persons for the purpose of performance of viniyogas in the 2[nd] plaintiff Mosque, that the plaint schedule properties were charged for the purpose of performance of viniyogas and the defendants, being successors of the two persons mentioned in Ext.A1 Wakf deed, are bound to perform the viniyogas. Suit was filed alleging that the defendants failed to perform viniyogas, therefore, the plaintiffs performed the same and the defendants are bound to pay the amount shown in 'D' schedule which is the amount spent for the performance of **::4::** ## **S.A.No.166 Of 1999** viniyogas for the past three years. It is alleged that the defendants purposefully withheld the payment to be made to the plaintiffs. The claim for money is a portion of money due to them excluding the amount due which is barred by limitation. The amount claimed in the plaint is Rs.6,180/- with future interest @ 6% per annum. 4. Defendants filed written statement on 9.3.1987 denying the plaint averments and prayed for dismissal of the suit. It is inter alia contended that the 1[st] plaintiff Masjid is not a legally constituted body and that they have no competency to manage or represent the Jamath Mosque. Execution of Ext.A1 Wakf deed, averments that the defendants are the grandchildren of one of the nominees, namely, Aisamma, that as per the terms and conditions of Ext.A1 Wakf deed, certain viniyogas are to be performed by the nominees and their descendants by using the income out of the properties shown in the schedule given in the Wakf deed were admitted. It is contended that the Muthavally of Jamath Mosque has no authority or right to perform the viniyogas nor they have got the authority to question the non-performance **::5::** ## **S.A.No.166 Of 1999** of viniyogas by the defendants. It is further contended that the gift deed does not provide nominees or their descendants to pay the price of any commodities to the Mosque. It is averred in the written statement that the plaintiffs are not the beneficiaries under the trust deed and that the Wakf deed does not provides a charge over plaint 'A' schedule property for the purpose of performance of viniyogas in favour of the plaintiffs. In paragraph 8 of the written statement it is stated that under the registered partition deed dated 6.5.1963 executed by the defendants, certain properties have been set apart for the performance of viniyogas mentioned in Ext.A1 Wakf deed, that the properties mentioned in Ext.A1 Wakf deed has been later assigned under the Kerala Land Reforms act to the tenants since they were in their possession and enjoyment and therefore it has become impossible for them to perform the viniyogas in terms of Ext.A1. 5. Original written statement was filed on 9.3.1987. PW1 was examined on 8.11.1995. The case was heard on 28.11.1995 and the suit was disposed on 30.11.1995. On the date of hearing on 28.11.1995, an additional written statement was filed. In the **::6::** ## **S.A.No.166 Of 1999** additional written statement it is contended that Ext.A1 Wakf deed even though it is nomenclatured as Wakf, it is not a Wakf deed, that it is a family settlement, that there is no permanent dedication to God in the Wakf deed and hence the plaintiff cannot enforce viniyogas mentioned in the document. 6. PW1 was examined and Exts.A1 to A42 were marked on the plaintiffs' side. Defendants did not adduce oral evidence. Exts.B1 to B5 were marked on their side. 7. On the basis of the contentions raised by the parties the trial court examined as to whether the 1[st] plaintiff Juma Masjid is a legally constituted body, whether the said Masjid has the legal status to sue, as to who have to perform viniyogas as per the terms set out in Ext.A1 Wakf deed, as to whether the plaintiffs have got the right to enforce the terms in Ext.A1 Wakf deed and other related issues. The trial court held that the suit filed by the plaintiffs is maintainable, that the 1[st] plaintiff Masjid is a legally constituted body having the status to sue, that the plaintiffs have got the right to enforce Ext.A1 Wakf deed against defendants and that the plaintiffs are entitled to realise 'D' **::7::** ## **S.A.No.166 Of 1999** schedule amount from the defendants. The decree passed by the trial court was challenged in appeal. The appellate court agreed with the view taken by the trial court and confirmed the findings of the trial court. 8. The learned senior counsel Sri.V.R.Venkitakrishnan contended that the plaintiffs are not parties to Ext.A1 Wakf deed nor are they beneficiaries under Ext.A1, therefore, the plaintiffs cannot enforce the terms of Ext.A1 document even if there is a breach of performance of the terms. The learned senior counsel also contended that the courts below did not consider properly the effect of Section 55 of the Wakf Act of 1954 and it was wrong to assume that the Section applied only to a suit coming under Section 92 of the Code of Civil Procedure. The learned senior counsel also brought to the notice of this Court the contention in the written statement that the plaintiffs are not entitled to enforce the conditions of the Trust Deed as beneficiaries and that the plaintiffs are not the beneficiaries under the deed. Before the lower appellate court the contention advanced by the appellants is that the plaintiffs are not entitled to enforce the terms since **::8::** ## **S.A.No.166 Of 1999** Ext.A1 Wakf deed is not in favour of the appellants. The contention raised before the lower appellate court is that there is no contract between the plaintiffs and defendants or their predecessors and therefore, the plaintiffs are not entitled to enforce Ext.A1. It is also contended that there is no evidence to show that the plaintiffs performed viniyogas and therefore, they are not entitled to recover the amount without proving that the viniyogas have been performed. The learned senior counsel placing reliance on the decisions reported in _**Syed Mohd. Salie Labbai (Dead) by L.Rs. and others v. Mohd.Hanifa (Dead) by L.Rs. and others**_ (AIR 1976 SC 1569), _**Mohammed Jacoo Sait v. District Collector, Trichur & others**_ [1962 KLT 544 (FB)], _**Mohd. Khasim v. Mohd.Dastagir and others**_ (2006 (13) SCC 497) and _**Mohammed v. Mohammed Beke**_ [1997(1) KLT 48 (SC)] submits that in order to create a valid dedication of a public nature the founder must declare his intention to dedicate the property for the purpose of a mosque, that the founder must divest himself completely from the ownership of the property and that the divestment can be inferred from the fact that he had **::9::** ## **S.A.No.166 Of 1999** delivered possession to the Muthavally or Imam of the mosque. 9. Ext.A1 is the Wakf deed dated 21.12.1899 executed by one Aisamma, W/o.Kambar Abdul Rahiman Haji. The very purpose of executing Ext.A1 Wakf deed is for the due performance of certain viniyogas. The recitals in Ext.A1 deed is the most relevant factor to be taken into consideration for the purpose of deciding the issues involved in the suit. Ext.A1 deed was executed by Aisamma in favour of Aisamma, a minor child aged 12 years and Dilekamma. Both are near relatives of the executant. It is recited in Ext.A1 that she had no issues, that she is an aged lady and that the deed is executed for the purpose of performing all the religious rites mentioned in Ext.A1 deed. Ext.A1 deed was executed directing the aforesaid two persons to continue to perform the religious rites. The properties mentioned in the document was put in their possession, the executant relinquished her right over the said properties on the specific condition that the aforesaid two persons shall perform the religious rites and services as was done by the donor hitherto in her residential house and in the Mosque built up by her husband. **::10::** ## **S.A.No.166 Of 1999** In the deed it is stated that her late husband has been managing the affairs of the Jamath Mosque, performing the viniyogas and that after his death, the executant continue to do the viniyogas in the Mosque. The aforesaid two persons are directed to enjoy the properties and perform the viniyogas and services. The services shall be performed by the two persons and their successors-ininterest in her house and in Juma Masjid out of the income from the properties. It is recited that there should be no default whatsoever on the part of the donees or their successors in performing the services and religious services mentioned therein. It is also provided that the two nominees nor their successors shall not mortgage, sell, gift or lease the properties or alienate the properties. The properties mentioned in Ext.A1 Wakf deed shall be a charge for the due performance of the services permanently. It is also recited that if the nominees or their legal representatives/successors violate the conditions, any trustees of the Masjid, constructed by her husband, may file a suit and cancel the deed. Viniyogas to be performed are mentioned in the deed. Viniyogas includes daily charity of rice conjee meals for **::11::** ## **S.A.No.166 Of 1999** one month, Moulood offering, providing 6 kutties of coconut oil per year for lighting the lamp permanently in the Mosque etc. The nominees and their successors are directed to perform the viniyogas from generation to generation by utilising the income from the properties scheduled in the deed. 10. Defendants did not adduce oral evidence. None of them mounted the box and tendered evidence in support of their contentions in the written statement. PW1 deposed before the court that they have performed viniyogas and religious services in terms of Ext.A1 Wakf deed. The fact finding courts noticed the fact that the defendants are in possession of the properties covered by Ext.A1 Wakf deed over which a charge is created for the performance of viniyogas. The lower appellate court also noticed the terms of Ext.A1 Wakf deed wherein it is stated that if the nominees act contrary to the terms of the document, their descendants and also the trustees will have the right to cancel the alienation and that the right of the defendants to enjoy the properties is subject to the charge created over the properties for the purpose of performing viniyogas in the mosque in terms of **::12::** ## **S.A.No.166 Of 1999** Ext.A1. It is clear that the plaintiffs are the beneficiaries so far as the terms of Ext.A1 for the purpose of performing viniyogas is concerned and therefore, the contention that the plaintiffs are not entitled to enforce the terms of Ext.A1 against the defendants is unsustainable. 11. Wakf is defined as the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable and Wakf deed means any deed or instrument by which a wakf has been created. The term ‘beneficiary’ in the context of Wakf Act means a person or object for whose benefit a Wakf is created and includes religious, pious and charitable objects and any other objects of public utility sanctioned by the Muslim Law. 12. I have already adverted to the contents of Ext.A1 Wakf deed. The deed is named as Wakf deed. The very purpose of executing Ext.A1 deed is for the due performance of certain viniyogas. The husband of the executant and after him by the executant, have been performing certain viniyogas in the Mosque **::13::** ## **S.A.No.166 Of 1999** and in the house. The two persons named in the Wakf deed are directed to perform the viniyogas as has been performed by the executant during her lifetime. There is no provision in the deed enabling the nominees or their descendants to utilise the income for any other purposes other than the performance of viniyogas mentioned in the deed. On a reading of Ext.A1 deed it is clear that what is intended by executing the transfer of property in the name of nominees is the performance of viniyogas and not for the enjoyment of the property for their personal purposes. The purpose for which the deed was executed is no doubt for a religious purpose. It is plainly understandable that there is a permanent dedication of the properties described in the deed for the religious and charitable purposes. The dedication must be for pious or religious purposes as per the Muslim Law. On a reading of Ext.A1 deed, it is clear that there is a clear and unequivocal declaration of dedication. On a plain reading of Ext.A1 indicates that the executant had intended that her properties should remain intact for the objects indicated in the deed. The recitals in the deed also would show that the executant did not want his **::14::** ## **S.A.No.166 Of 1999** estate to be alienated by any of the nominees or their descendants who would be in management. The object for which the income from the properties is to be expended is of pious and religious nature. In the said facts and circumstances, there is no substance in the contention raised by the appellants that Ext.A1 does not fulfill the conditions of a valid Wakf, there is no dedication and there is no vesting of the properties of the Wakf in God. I agree with the findings recorded by the courts below and find that no sustainable grounds are made out for interference in the second appeal. No question of law muchless any substantial questions of law arises for consideration in the appeal. In the result, the appeal fails and accordingly dismissed. No order as to costs. **HARUN-UL-RASHID, Judge.** bkn/-