LexMOHAMMAD versus MOHAMMED BEKE
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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. G The following Order of the Court was delivered : 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- 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 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) (iii). a wakf-alal-aulad. E F G 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 A B c 604 SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R. 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, 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 j
Excerpt shown. Read the full judgment & AI analysis in Lexace.