LexMOHAMMED KHASIM versus MOHAMMED DASTAGIR AND ORS.
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MOHAMMED KHASIM A v. MOHAMMED DASTAGIR AND ORS. DECEMBER 15, 2006 [DR. AR. LAKSHMANAN AND AL TAMAS KABIR, JJ.] B Muslim law Wakf-Creation of-Held-permanent dedication of impugned properties in favour of God Almighty is necessary-Though objects of wakf C may initially be for benefit of wakf's family and other descendants, ultimate beneficiary has to be God-Other important test is inalienability of properties forming nucleus of wakf-Once a wakf is created, title of wakf in dedicated property is extinguished and vests in God-Wakf is entitled to reserve power to alienate any portion of wakf properties, but for benefit of the wakf-Also, D it is not necessary to use term 'wakf in document in question-On facts, held impugned Deed of Trust did not create a wakf as executant had reserved to himself power to alienate trust properties, along with condition that his two minor daughters were to be given immovable properties worth a specified amount, but were disentitled to same if they had no male issues-Though it provided for performance of certain religious ceremonies, pious and charitable E duties, there was no mention that dedicator had ever intended that impugned properties should constitute a wakf-lt created only rm English Trust. Settlement of properties~Making of-Held-It is _not necessary that Mohammedan has always to create a wakf-There is no bar for them to create a simple English Trust. MIS owned various immovable properties and a business. Respondent was one of his children from his first wife and appellant from his second wife. Respondent executed a Release Deed acknowledging that all properties and F the business belonged to MIS, and on receipt of a sum of money he had G voluntarily relinquished all his rights over them. After execution of the said Deed. MIS executed a Deed of Trust in respect of his various properties. On death of MIS, respondent brought a suit for partition and separate possession against all his surviving heirs, and also making a case against the Release Deed executed by him. 1157 H 1158 SUPREME COURT REPORTS [2006) SUPP. IO S.C.R. F A Trial Court held that by virtue of the Trust deed, a Wakf-al-al-Atdad had been created and consequently the properties set out as item Nos. 1 to 3 in the schedule to the plaint were not partible and could not form the subject- matter of any partition. As to th~ remaining properties, the Trial Court held that they were partible, declared undivided share of defendants therein, but B respondent was not entitled to any share therein. Accordingly, a preliminary decree for partition and separate possession was drawn up. Defendants, including appellant, as well as respondent filed appeals against judgment of Trial Court in High Court. The High Court held that both the Release Deed and the Trust Deed were invalid and could not deprive c either respondent or other heirs of MIS from getting their reSpective share in the property left by him. Consequently, appeal preferred by respondent was allowed and one filed by appellant was dismissed. Aggrieved by this, appellant filed the present appeal: Appellant contended that (i) each of the duties entrusted to the trustees D who were to come into the management of the properties after the death of MIS were recognized by Mohammedans to be pious and charitable and also religious in nature which gave the document the distinct flavour of a Wakf- al-al Aulad (ii) trial court was wrong in concluding that properties subsequently acquired by the estate of MIS did not form part of the dedicated E properties and were, therefore, partible (iii) mere declaration of an intention to create a Wakf is sufficient to create it, and delivery of possession as in the case of a gift, was not necessary. Respondent contended that (i) there was no express dedication of the Wakf properties in God and in absence of such a provision, it could not be F presumed that the exectitant had intended to create a Wakf and not a simple English Trust as indicated from the document itself (ii) there is no legal bar in the creation of a trust for the objects indicated in the Deed of Trust though they may also be lawful objects of a Wakf-al-al-Aulad or even a Public Wakf. (iii) Trust. Deed had not been acted upon inasmuch as the executant had reserved to himself the power to alienate the properties forming the subject- G matter of the Trust Deed (iv) the Release Deed was not binding on the respondent.
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