T.P. Abdul Kareem v. Al-Ameen Cultural Foundation, Anjilath Mushafa, V.K. Haseena, Mariyam, Marwan, Imran Abdusamad, Samiya Abdusamad, Jawahar Abdusamad, The Kerala State Wakf Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 27TH DAY OF JUNE 2019 / 6TH ASHADHA, 1941** **CRP(WAKF).No.267 of 2016** **AGAINST THE ORDER DATED 07-10-2015 IN OA NO.10/2013 of** **WAKF TRIBUNAL, KOZHIKODE.** **AGAINST THE ORDER DATED 29.04.2013 IN O.P.NO.64 OF 2004 OF KERALA STATE WAKF BOARD, KOCHI** ## **REVISION PETITIONER/RESPONDENT NO.1 IN O.A.:** **T.P.ABDUL KAREEM, AGED 63 YEARS,S/O.ABDULLA,RAHMATH MANZIL, THEKKEPURAM,P.O.PADANE,KASARAGOD DISTRICT.** **BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA SRI.S.KANNAN** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 2 AND 3 AND LEGAL HEIRS OF RESPONDENT NO.4 (RESPONDENTS 4 TO 8 HEREIN) AND 5TH RESPONDENT IN O.A.:** **1 AL-AMEEN CULTURAL FOUNDATION, PADANE,REPRESENTED BY ITS GENERAL SECRETARY, K.I.MUHAMMEDALI,S/O.P.V.AHAMMED,RESIDING AT THEKKEPURAM,P.O.PADANE,HOSDURG TALUK, KASARAGOD DISTRICT. 671312** **2 ANJILATH MUSTHAFA, S/O.BEEFATHIMA,NEAR AL-AMEEN MASJID, PADANE,THEKKEPURAM,P.O. PADANE, KASARAGOD DISTRICT.671312** CRP(Wakf) No.267 of 2016 2 - **3 V.K.HASEENA,W/O. ANJILATH MUSTHAFA, NEAR AL-AMEEN MASJID,PADANE, THEKKEPURAM,P.O.PADANE,KASARAGOD DISTRICT.671312** - **4 MARIYAM,W/O. ABDUL SAMAD,AGED 54 YEARS, KARANORE,P.O. PADANE,KASARAGOD DISTRICT, PIN-671 312** - ***5 MARWAN,S/O. ABDUL SAMAD,AGED 35 YEARS, KARANORE,P.O.PADANE,KASARAGOD DISTRICT, PIN-671 312 (DELETED)** - ***6 IMRAN ABDUSAMAD,S/O ABDUL SAMAD, AGED 33 YEARS,KARANORE,P.O.PADANE, KASARAGOD DISTRCT, PIN-671 312. (DELETED)** - **7 SAMIYA ABDUSAMAD,S/O ABDUL SAMAD, AGED 35 YEARS,KARANORE,P.O.PADANE, KASARGOD DISTRICT, PIN-671 312.** - **8 JAWAHAR ABDUSAMAD,S/O. ABDUL SAMAD, AGED 35 YEARS,KARANORE,P.O.PADANE, KASARGOD DISTRICT, PIN-671 312.** - **9 THE KERALA STATE WAKF BOARD, REPRESENTED BY THE CHIEF EXECUTIVE OFFICER, VIP ROAD,KALOOR,KOCHI-682017** ***RESPONDENTS 5 AND 6 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 01.04.2019 IN IA 1425/18.** **R1 & R3 BY ADV.SRI.T.H.ABDUL AZEEZ SRI.MOHAMMED SADIQUE.T.A R9 BY ADV.SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD** **THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 27.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRP(Wakf) No.267 of 2016 3 ## **A.HARIPRASAD & T.V.ANILKUMAR, JJ. -------------------------------------C.R.P.(Wakf) No.267 of 2016** **-------------------------------------Dated this the 27[th] day of June, 2019** ## **ORDER** ## **Hariprasad, J.** Revision petitioner approached the Kerala Wakf Tribunal, Kozhikode with O.P.No.64 of 2004 seeking the following reliefs: _“(a) Declaring sale deed bearing No.1331/2004 of SRO Trikkaripur, Kasaragod District executed in favour of the 2[nd] opposite party by the 1[st] opposite party in respect of B schedule property is null and void;_ _(b) To recover the possession of B schedule property by the 1[st] opposite party from the 2[nd] opposite party or any other occupant;_ _(c) To direct the 1[st] opposite party to register whole property belonging to Al-Ameen Cultural Foundation Trust, Padne, Kasargod District with the Wakf Board;_ _(d) To direct the 1[st] opposite party to submit the whole and proper accounts of the Wakf property to the Wakf Board;_ _(e) Full cost of the petition and such other and_ CRP(Wakf) No.267 of 2016 4 _further reliefs as this Hon'ble Wakf Board deems fit to order under the circumstances of the case.”_ 2. It is an admitted case that the 1[st] respondent is a religious and charitable trust. The settlor of property (founder trustee) got himself impleaded as 4[th] respondent in the proceedings. Pending proceedings, he died and his legal heirs are respondents 4 to 8 in this petition. Even though it is mentioned in the petition that the trust was formed in the year 1987, this is a disputed proposition. The documents would show that a trust was initially formed in 1983. Subsequently, the settlor unilaterally revoked 1983 trust deed and executed another deed in the year 1987. The contesting respondents have a case that revocation of 1983 trust deed is illegal and inoperative for the reason that the property acquired by the trust had already vested with the trustees as per the terms of 1983 trust deed and therefore the settlor could not have unilaterally revoked the trust. It is therefore an indisputable proposition that constitution of 1987 trust itself is a doubtful legal proposition. 3. It is the case of the petitioner that the trust has acquired various properties and ultimately a mosque was established in one of the properties. Petitioner would contend that after consecration of the mosque, the entire property has become wakf property and it will have to be registered before the Wakf Board. The alienation of 20 cents of property in favour of the 2[nd] respondent is also challenged by the petitioner by contending that the assignors have no right to alienate wakf property according to their whims CRP(Wakf) No.267 of 2016 5 and fancies. Consequently, recovery of possession of property is also sought for. 4. The contesting respondents opposed the petition by contending that the entire properties managed by the trust cannot be said to be a wakf property. According to the respondents, the petitioner is not a beneficiary of the wakf. Sale deed executed by the trustees in favour of the 2[nd] respondent after taking a proper resolution is a valid document. The property involved in the sale deed is not a wakf property. The properties managed by the trust are not permanently tied up to the God Almighty and there is no dedication of the same for any religious, pious or charitable purposes. The prayers in the petition are not allowable and the properties cannot be registered as wakf properties. 5. The Wakf Board after considering the rival contentions passed the following order: _“In these circumstances, we dispose the proceedings with the following directions._ _(1) The Chief Executive Officer is directed to take all steps to recover the properties covered by document No.1331/2004 of S.R.O. Thrikkaripur from the 2[nd] and 3[rd] respondents or any other person or persons, who are in occupation of the said properties, in compliance with the provisions of the Wakf Act and Rules._ - _(2) The office is directed to take all steps without_ CRP(Wakf) No.267 of 2016 6 _delay to register the properties belonging to Al-Ameen Cultural Foundation, Padane, Kasargod District as wakf properties with the Kerala State Wakf Board._ _There is no order as to cost.”_ It is clear from the above extracted portion that the entire properties belonging to Al-Ameen Cultural Foundation, Padane, Kasaragod District are directed to be registered with the Wakf Board. 6. Aggrieved by the order of the Wakf Board, the 1[st] respondent approached the Wakf Tribunal, Kozhikode with O.A.No.10 of 2013. After considering rival contentions and the legal positions applicable to the case, the Wakf Tribunal disposed of the application in the following manner: _“_ _**Point No.5:** -In the result:-_ - _(a) The O.A. is allowed._ _(b) The order of the Wakf Board dated 29.04.2013 in O.P.64/13 is set aside._ _(c) The trust deed No.518/1987 is void and_ _invalid._ _(d) B schedule property comprised in assignment deed No.1331/04 is not a wakf property._ _(e) The properties of Al-Ameen Cultural Foundation Trust wherein the mosque, madrassa and other religious institutions are situated, which are being used by the public are wakf properties and those are required to be_ CRP(Wakf) No.267 of 2016 7 _registered before the Kerala State Wakf Board in accordance with the provisions of the Wakf Act._ _(f) The matter is remanded to the Wakf Board for an enquiry as mentioned earlier, with regard to the details of the wakf property in the possession of and Al-Ameen Cultural Foundation Trust, for the purpose of registration before the Wakf Board in accordance with the provisions in the Wakf Act.”_ 7. The Wakf Tribunal found that in law, it can be seen that the mosque, madrassa and other institutions in the properties of Al-Ameen Cultural Foundation, Padane being used by public are wakf properties. It was therefore found that those are required to be registered with the Kerala State Wakf Board. Since no sufficient materials were available on records, the Tribunal thought it fit to remand the case to the Wakf Board to conduct an enquiry with regard to the details of wakf property as described in the order. 8. Heard the learned counsel for the petitioner and respondents 1 and 3. Learned Standing Counsel appearing for the 9[th] respondent is also heard. 9. Learned counsel submitted that grievance of the petitioner against the remand order is that the Wakf Tribunal omitted to include 20 cents of land assigned by the 1[st] respondent in favour of the 2[nd] respondent by virtue of a registered document mentioned above. According to the CRP(Wakf) No.267 of 2016 8 learned counsel, the Tribunal failed in its own logic when it excluded 20 cents from registration as a wakf. In the operative portion of the order passed by the Tribunal also, no specific reason is mentioned by it for not registering 20 cents assigned to the 2[nd] respondent by the 1[st] respondent as a wakf. 10. Per contra, learned counsel for respondents 1 and 3 contended that there shall not be any confusion regarding the properties belonging to a trust and the properties having the character of a wakf. Reliance is placed on the Supreme Court decision in **Zain Yar Jung v. Director of Endowments (AIR 1963 SC 985)** . Relevant portions read as follows: _“(12) Similarly, the Muslim Law relating to trusts differs fundamentally from the English law. According to Mr.Ameer Ali,_ _“the Mohammadan law owes its origin to a rule laid down by the Prophet of Islam; and means 'the tying up of property in the ownership of God of Almighty and the devotion of the profits for the benefit of human beings.' As a result of the creation of a wakf, the right of wakif is extinguished and the ownership is transferred to the Almighty. The manager of the wakf is the mutawalli, the governor, superintendent, or curator. But in that capacity, he has no right in the property belonging to the wakf; the property is not vested in him and he is not a trustee in the_ CRP(Wakf) No.267 of 2016 9 _legal sense.”_ _Therefore, there is no doubt that the wakf to which the Act applies is, in essential features, different from the trust as is known to English law._ _(13) Having noticed this broad distinction between the wakf and the secular trust of a public and religious character, it is necessary to add that under Muslim law, there is no prohibition against the creation of a trust of the latter kind. Usually, followers of Islam would naturally prefer to dedicate their property to the Almighty and create a wakf in the conventional Mahommedan sense. But that is not to say that the follower of Islam is precluded from creating a public, religious or charitable trust which does not conform to the conventional notion of a wakf and which purports to create a public religious charity in a non-religious secular sense. This position is not in dispute. …..........”_ The above decision is re-stated in **Maharashtra State Board of Wakfs v. Yusuf Bhai Chawala ((2012) 6 SCC 328)** . The relevant portion reads thus: _“There is a vast difference between Muslim wakfs and trusts created by Muslims. The basic difference is that wakf properties are dedicated to God and the “wakif” or dedicator does not retain any title over the wakf properties. As far as trusts are concerned, the properties are not vested in God._ CRP(Wakf) No.267 of 2016 10 _Some of the objects of such trusts are for running charitable organisations such as hospitals, shelter homes, orphanages and charitable dispensaries, which acts, though recognised as pious, do not divest the author of the trust from the title of the properties in the trust, unless he relinquishes such title in favour of the trust or the trustees. At times, the dividing line between public trusts and wakfs may be thin, but the main factor always is that while wakf properties vest in God Almighty, the trust properties do not vest in God and the trustees in terms of deed of trust are entitled to deal with the same for the benefit of the trust and its beneficiaries.”_ A Division Bench of this Court has, in **Haji P.Liakath Alikhan v. K.Unneenkutty Saquafi and others (2005 KHC 1228)** , while examining the distinction between the properties owned by a society and properties managed by a wakf, noticing the fact that wakf is a permanent dedication of property by a person for any purpose recognized by the Muslim Law as pious, religious or charitable, and that a society is the creation of a statute, pronounced on the clear distinctions between the two. 11. As pointed out by the learned counsel for respondents 1 and 3, the trust now in existence can only be the one formed in the year 1983 as the revocation of it in the year 1987 is without any legal basis. The trust so formed in the year 1983 can undoubtedly own properties and whether the properties scheduled to the application are all wakf properties or not is a CRP(Wakf) No.267 of 2016 11 question of fact to be decided. 12. It is pointed out by the learned counsel for respondents 1 and 3 that the mosque situated in one of the properties came into existence only in the year 1987 and other acquisitions by the trust are prior to consecration of the mosque. If that be so, the properties can never be said to be dedicated to the mosque as a wakf. Since there is no definite pleadings or evidence regarding the actual date of consecration of the mosque and dedicating it to the God Almighty, we are not pronouncing anything on the merits of this contention. The parties are free to tender evidence before the Wakf Board regarding all these aspects. On an over all assessment of the issues involved, we do not find any reason to interfere with the order of remand. Petitioner's grievance that non-inclusion of 20 cents of land scheduled in B schedule to the petition in the enquiry to be conducted by the Wakf Board cannot be accepted at its face value as long as there is no material placed before the authorities to find out whether this is actually a part of the wakf or not. If the entire properties were acquired before consecration of the mosque, none of them can be regarded as wakf property, because the trust can own and hold properties in its own right. If the properties were acquired subsequent to the establishment of the mosque as pointed out by the Wakf Tribunal, the lands where the mosque, madrassa and other religious institutions are situated will form part of the wakf. It is also clarified that the extent where such structures are standing on shall alone be treated as wakf properties. It is made clear CRP(Wakf) No.267 of 2016 12 that essential amenities for using wakf property can also be identified by the Wakf Board. It is made clear that rest of the findings entered by the Tribunal are hereby confirmed. Revision petition is dismissed with the above observations. All pending interlocutory applications will stand closed. **A.HARIPRASAD, JUDGE.** **T.V.ANILKUMAR, JUDGE.** **cks**