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1999(7) Supreme 510
Supreme Court of India
(From Karnataka High Court)
Dr. A.S. Anand, CJI., M. Jagannadha Rao & N. Santosh Hegde, JJ.
Karnataka Board of Wakf -Appellant
versus
Anjuman-E-Ismail Madris-Un-Niswan -Respondent
Civil Appeal No. 4377 of 1999
(Arising out of SLP (C) No. 976 of 1999)
Decided on 10-8-1999
Counsel for the Parties :
For the Appellant : S.K. Kulkarni, Advocate for Ms. Sangeeta Kumar, Advocate.
For the Respondents : R. Jagannath Gouley, Advocate for P. Narasimhan, Advocate.
Held : Necessary ingredients for the purpose of deciding an issue whether a property is a wakf property or not, is to examine with reference to any particular property whether there is a permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable or not. (Para 5)
Recital in sale deed shows that Sultanji named in the said sale-deed had dedicated both the pond as well as the Makan for the benefit of the Muslim community, reserving for himself the sole right and privilege of managing them. Having so dedicated the property on the death of Sultanji the privilege of managing the said property seems to have devolved upon the vendors of the said sale deed. It is also clear from the recital extracted above that it is in furtherance of the said dedication of Sultanji with a desire to see that the property in question should be utilised for building a School thereon for Muslim girls or for other communal purpose, the said property was sold. In our view, the said recital makes it amply clear that the said Sultanji had dedicated the property in question for a purpose recognised by Muslim law, hence, the property in question had become a wakf property. Both the trial Court and the lower appellate court in their elaborate judgments referred to the arguments addressed on behalf of the parties and perused the documents produced and concurrently came to the conclusion that the property in question was a wakf property and the fact that the plaintiff was registered under the Societies Registration Act, did not make any difference since the object of the Society was in conformity with the original dedication by Sultanji and also came to the conclusion that the contention of the plaintiffs that there was no opportunity afforded to them before notifying the suit property as wakf property, is also baseless. (Para 6)
(ii) Code of Civil Procedure, 1908-Section 100-Second appeal -High Court s jurisdiction to interfere with finding of fact-Concurrent findings of fact of lower Court cannot be interfered with by High Court without coming into conclusion that finding of fact is either perverse or not based on material on record. (Paras 7 to 13)
Judgment
Santosh Hegde, J.-Leave granted.
2. Heard learned counsel.
This appeal is preferred against the judgment and decree passed by the High Court of Karnataka in R.S.A. No. 329/1989 dated 24.9.1997. We shall refer to the status of the parties as was in the trial Court.
3. The plaintiff filed a suit for declaration that the suit property is not a wakf property and for consequential directions to delete the suit property from the list of wakf properties. The trial Court as per its judgment dated 16.4.1980 in O.S. No. 5/75 dismissed the suit and the appeal by the plaintiff against the said judgment came to be dismissed by the first appellate court as per its judgment dated 2.1.1989 in RA No. 508 of 1980. The concurrent findings of the two lower courts have been reversed by the impugned judgment of the High Court and the defendant has preferred this appeal before us.
4. The plaintiff claiming to be a Society registered under the Societies Registration Act, 1860 contended before the trial Court that it had purchased the suit property as per two sale-deeds dated 25.7.1921 and 27.9.1921 and is running an educational institution for the benefit of the girls of Muslim community. It further contended that the objects to the said Society did not confine itself to the benefit to the Muslim community only, therefore, the property owned by it could not have been a wakf property and the defendant-Wakf Board had erroneously notified the same in the list of wakf properties without proper enquiry. Hence it sought the declaration referred to above. Defendant, in brief, contended that the property in question originally belonged to one Sultanji who during his life-time, had dedicated this property for the benefit of Muslim community, reserving for himself the sole right and privilege of managing them. The said declaration was absolute and was for the sole purpose of benefiting the Muslim community. Therefore, the property in question is a wakf property as contemplated under the Wakf Act. On this basis the defendant denied the claim of the plaintiff. The trial Court framed as many as 9 issues but for the disposal of this case the only relevant issue for consideration is: whether the suit property is a wakf property or not.
5. The definition of a wakf property reads thus :
“ ”Wakf” means a permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes,
(i) Wakf by user,
(ii) Mashrut ul khildmat and
(iii) a wakf alal glad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable.”
Therefore, the necessary ingredients for the purpose of deciding an issue whether a property is a wakf property or not, is to examine with reference to any particular property whether there is a permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable or not.
6. In the instant case, the sale-deeds Ex. P1 and P2 dated 25.7.1921 and 29.9.1921 hitherto produced by the plaintiff at the relevant place read thus :
“Whether (sic) as the land known as Sultanji Gunta, situated in C & M Station, Bangalore, and shown in the accompanying sketch and scheduled hereunder together with the Makhan adjoining it were originally the properties of one Sultanji, who died about 70 years ago and whereas the said Sultanji constructed in the said land a pond or gunta named after him and also set apart the Makhan and had dedicated both for the benefit of the Muslim Community reserving for himself the sole right and privilege the Vendors abovenamed possess as being heirs of the said Sultanji as stated in the Putwa given about 6 years ago by Sur Khazi Abdul Gaffar of C & M. Station, Bangalore and whereas the said pond has become insanitary and is now fil
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