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IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.Vinod Chandran, T.R. Ravi, JJ.
A.V. Latheef – Petitioner
Versus
Islamic Propagation Centre and Ors. – Respondents
CRP(WAKF).No.630 OF 2015
Decided On : 12-11-2020
Wakf Act- Section 3(r) - No Wakf has been created and completed by the mere execution of the document. The executant is not the Mutawalli-The possession of the property has not changed hands and that no steps were taken to effect mutation of the property-The property is not identifiable and there is uncertainty regarding the property-The wakif never intended to create a Wakf is also clear from the fact that he himself thereafter sought to cancel the document; though the cancellation is relevant only by virtue of the other attendant circumstances.
Statement Of facts:
The petitioner who had executed a document styled as a Wakf Deed and cancelled it later by another document, filed a suit before the Wakf Tribunal seeking to cancel the Wakf. He has been non-suited citing the principle "Once a Wakf, always a Wakf". We are called upon to examine whether the said principle is one which does not permit any exception.
Finding of the court:
No Wakf has been created and completed by the mere execution of the document. The executant is not the Mutawalli. It is in evidence that the possession of the property has not changed hands and that no steps were taken to effect mutation of the property. A reading of the description of the property shown in Ext.A1 also clearly shows that the property is not identifiable and there is uncertainty regarding the property. The fact that the wakif never intended to create a Wakf is also clear from the fact that he himself thereafter sought to cancel the document; though the cancellation is relevant only by virtue of the other attendant circumstances.
Result: Revision petition allowed
ORDER :
T.R. Ravi, J.
An interesting question arises for consideration in this revision petition. The petitioner who had executed a document styled as a Wakf Deed and cancelled it later by another document, filed a suit before the Wakf Tribunal (hereinafter referred to as Tribunal) seeking to cancel the Wakf. He has been non-suited citing the principle "Once a Wakf, always a Wakf". We are called upon to examine whether the said principle is one which does not permit any exception.
2. The facts are uncontroverted since none of the respondents chose to contest the suit. The revision petitioner executed a document in favour of the 1st respondent, purporting to be a Wakf deed and got it registered as Document No.380 of 2010 of SRO, Payyoli (produced as Ext.A1 in the suit). Subsequently, he executed another document as document No.2075 of 2011, cancelling Ext.A1. The possession continued with the petitioner. The 1st respondent did not exercise any right of possession over the property nor were any steps taken to effect transfer of Registry. The petitioner thereafter approached the Tribunal praying for cancellation of the Wakf Deed.
3. The 1st respondent remained ex parte. The 2nd respondent Wakf Board did not file any written statement. By judgment dated 23.3.2015, the Tribunal dismissed the suit holding that the settled position of law is "Once a Wakf always a Wakf" and that the very definition of Wakf in Section 3(r) of the Wakf Act contemplates a permanent dedication. According to the Tribunal, the fact that the petitioner had not parted with possession is not of any consequence, having regard to the above settled principle of law. Aggrieved by the judgment of the Tribunal, the petitioner has filed this revision petition. Even though the 1st respondent was served a notice of this revision petition, they have not appeared, apparently for the reason that they have accepted the cancellation deed.
4. Heard Sri P.A.Harish on behalf of the revision petitioner and Sri T.K.Saidalikutty on behalf of the 2nd respondent.
5. The counsel for the petitioner relied on the decisions in Mohammed v. Mohammed Beke, reported in [1997(1) KLT 48(SC)] and Garib Das and others v. Munshi Abdul Hamid and others reported in [AIR 1970 SC 1035] in support of his contention that the Wakf has not taken effect by mere execution of Ext.A1, for the reasons that the possession remained with the petitioner and the property as described in the schedule to the document does not exist going by the description.
6. Section 186 (as is more often referred to) of Principles of Mahomedan Law by Mulla deals with the manner in which a Wakf is completed. Paragraph 186 reads thus:
(2) The founder of a Wakf may constitute himself as the first mutawalli (superintendent). The founder and the mutawalli being the same person, no transfer of physical possession is necessary, whichever of the two views is upheld. Nor is it necessary that the property should be transferred from his name as owner to his name as mutawalli. Such a transfer is not necessary even in Allahabad where the view of Muhammed prevails."
7. Faiz Badruddin Tyabji in his book Muslim Law (The personal law of muslims in India and Pakistan) (4th Edition) has dealt with the legal requirements
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