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2008 Supreme(All) 2881
[2009(1) ADJ 149]
ALLAHABAD HIGH COURT
BEFORE : PANKAJ MITHAL, J.
Smt. FAIQA KHATOON ...........Appellant
Versus
RIYAZUR RAHMAN KHAN SHERWANI
AND OTHERS ............Respondents
(Special Appeal No. 911 of 2008, decided on 15th December, 2008)
Counsel :
S.C. Verma for the Appellant; M.K. Gupta and Diwakar Rai Sharma for the Respondent.
Headnote:Wakf Act, 1995—Section 3-A—Waqf property—Right to leave in—Institution of suit by respondent for ejectment of appellant and for possession over disputed portion of wakf property—On allegations that she was living therein as a licensee of wakf—Which has been revoked—However, on appeal, it has been decreed holding that appellant was not a beneficiary, and entitled to right of residence—Hence, second appeal by appellant—According to the features of Wakf deed it is clear that apart from payment of land revenue, Government dues, maintenance expenses of wakf property, remuneration of Mutawalli, establishment of fund for repairs and maintenance of religious institutions, and other expenses in connection thereto, and for imparting education and scholarships to girl students and for Library, remaining income of wakf, was to be divided and spent for benefit of heirs of wakif, which includes his sons, daughters and wife—But, not heirs of wife and daughters, so long as management of wakf continues with sons and grandsons of wakif—Said wakf deed clearly demonstrated that intention of wakif in creating wakf-alal-aulad was for benefit of his family and all his heirs—Hence, as per language used in wakf-deed, daughter of son of wakif, was included within legal heirs of wakif—And, as such, was one of beneficiaries under wakf-deed—Held, the contention that appellant was not heir of wakif according to Shariat, cannot be accepted—And appellant was held to be one of heirs of wakif and beneficiary under Wakf—And entitled to live therein as a co-owner, and her occupancy cannot be termed as a licensee—Thus, impugned judgment of A.D.J. set aside and that of Court of first instance, dismissing suit was restored. [Paras 16, 18, 19, 22, 23, 24 and 25]
Hon’ble Pankaj Mithal, J.—The dispute in this second appeal is between the plaintiff-brother and the defendant-sister.
2. According to the admitted facts, Dr. Maulvi Hazi Habib-ur-Reman Khan Nawab Sarvar Yar Jang Bahadur created a wakf-alal-aulad vide wakf deed dated 24.5.1945. The plaintiff-respondent No. 1 Zia-ur-Rehman Khan Sherwani is the grand son of wakif and is presently Mutwalli of the wakf. The defendant-appellant Smt. Faiqa Khatoon who is his real sister is occupying and living in the part of the wakf property with the permission of the earlier Mutwalli who happened to be their father, late Haji Ubed-ur-Rehman Khan Sherwani.
3. The plaintiff/respondent No. 1 instituted original suit No. 1463/94 for the ejectment of defendant/appellant and for possession over the disputed portion of the wakf property on the allegation that she is living therein as a licensee of the wakf which has been revoked. The suit was resisted by the defendant/appellant on the ground that she is one of the beneficiary under the wakf and, as such, cannot be evicted by treating her to be a licensee. The suit was dismissed by the Court of first instance. However, on appeal it has been decreed holding that the defendant/appellant is not a beneficiary entitle to right of residence. Thus, the defendant/appellant has come up in this second appeal.
4. In short, according to the plaintiff, the defendant is not a beneficiary under the aforesaid wakf and is not entitle to live in any part of the property of the wakf. On the other hand, the defendant claims herself to be a beneficiary having right of residence in the wakf property from which she cannot be evicted by treating her to be a licensee.
5. Learned counsel for the parties agreed that the only question of legal substance which is involved in this appeal is whether the defendant/appellant Smt. Faiqa Khatoon who is grand daughter of the wakif is a beneficiary under the wakf deed dated 24.5.45 and, as such, is entitled to right of residence in the wakf property.
6. I have heard Sri S.C. Verma, learned counsel for the defendant/
appellant and Sri M.K. Gupta along with Sri Diwakar Rai Sharma for the plaintiff/respondent No. 1 on the above substantial question of law to which they were
put to notice by the Court by an order dated 6.11.2008 and they have agreed
for final decision of the appeal at the stage of admission itself on the aforesaid question.
7. Basically, a wakf under the Mohammedan Law owes its origin to a rule laid down by Prophet of Islam which provides tying up a property in the ownership of the God and devotion of the profit for the benefit of human beings. In a wakf the ownership of dedicated property is taken away from the person making wakf and is transferred and detained by the God. The real purpose of creating a wakf is to acquire the merit in the eyes of God and any other purposes are of a secondary nature. Making of a wakf signifies offering a gift with the object of obtaining a favour of Almighty which would be helpful in the next world.
8. According to well recognised principles of the Muslim Law, wakf is a permanent dedication of a property by the wakif in the Almighty God and to utilise the profits thereof for religious, pious or charitable purpose. At one time, a private wakf was in no case valid. In other words, a wakf for the purposes of benefit of the family was not recognised. However, this extreme view is no longer tenable and now a settlement of property by way of wakf in favour of the family, children and descendants is recognised provided it is also of a charitable nature.
9. The Supreme Court in Radhakanta Deb and another v. Commissioner of Hindu Religious Endowments, Orissa, AIR 1981 SC 798 in paragraph 6 has observed as under :
"...the Mohammedan law recognises the existence of a private trust which is also of a charitable nature and which is generally called wakf-allal-aulad, where the ultimate benefit is reserved to God but the property vests in the beneficiaries and
