IMPORTANT POINT
If there is no actual delivery of the possession, mere fact that members of the Mohammedan public are permitted to offer prayers with azan and ikamat does not make the wakf complete and irrevocable.

ORDER

Leave granted.

2. 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 curiae. We deeply appreciate the valuable assistance rendered by him in this case. The facts which are fairly not in dispute are as under:

3. This appeal by special leave petition arises from the judgment and 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. 251 of 1993 in SA No. 86/88. The admitted facts are that the appellant, as an owner of certain properties, had executed a registered document in which he had mentioned that one acre 65 cents of land together with buildings and trees standing on 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 the document.

4. 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, 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 defines Wakf as under:

2(1) Wakf means the permanent dedication by a person professing 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 mashrul-ul-khidmat (muafies, khairati, qazi services, madad-mash) for any purpose recognised by Muslim Law as pious, religious or charitable, and)

(iii) a wakf-alal-aulad.

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 representatives.

Section 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 Hanafi 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 jurists recognise the validity of such wakfs.

5. In Garib Das & Ors. v. Munshi Abdul Hamid & Ors1, one Tassaduk Hussain was the owner of the disputed house and he admittedly executed a deed of wakf on June 21, 1914 in respect of the same for the benefit of a mosque and Madrasa at Nathnagar and had the same registered. In terms of the deed, the donor was to remain in possession of the house as Mutawali and his wife was to be the Mutawali after his death. The documents provided that after the death of both the husband and wife, the Mutawali would be elected by the panchas of the Muslim community of Nathnagar and so long as the donor and his wife were living, they would maintain themselves from the income of the property and spend the balance left for the mosque and the Madrasa. The question, under those circumstances, arose: whether the wakf had been created ? It is seen that the document, th