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2024 Supreme(Online)(Ker) 89328
IN THE HIGH COURT OF KERALA AT ERNAKULAM
AMIT RAWAL, Easwaran S., JJ
ABDULLA KOYA, IMBICHIKOYA THANGAL, MUHAMMEDKOYA THANGAL – Appellant
Versus
THE SECRETARY, BAFAKKI YATHEEMKHANA – Respondent
CRP(WAKF) 16/2017
For the Appellants/Petitioners: SRI.ARUN MATHEW VADAKKAN
For the Respondents: SRI.S.VINOD BHAT, SRI.M.S.IMTHIYAZ AHAMMED, SRI.LEGITH T.KOTTAKKAL, SRI.N.C.ALEXANDER, SMT.V.K.AMBIKA, SRI.T.P.SAJID, SRI.O.V.USMAN KURIKKAL, SHRI.T.K.SAIDALIKUTTY, SRI.JAMSHEED HAFIZ
The court established that unauthorized transactions regarding Waqf properties are void, affirming the necessity of Waqf Board permission for property dedication.
Headnote:(A) Waqf Act, 1995 - Section 3(r) - Private Waqf - The court examined the nature of the property in dispute, determining that it was a Waqf property based on historical use for religious purposes. The plaintiffs claimed rights over the property, asserting familial ties to its management. The defendants contested these claims, arguing the property was privately owned and not subject to Waqf regulations. (Paras 1-24)
(B) Jurisdiction of Waqf Board - The court emphasized that any dedication of Waqf property requires permission from the Waqf Board, rendering unauthorized transfers void. (Paras 21-24)
Facts of the case:
The dispute arose over a tomb and graveyard used by the Kananchery Mambra Thangal family, with plaintiffs asserting their rights based on genealogical ties. The defendants claimed exclusive ownership and executed a Waqf deed without proper authority.
Findings of Court:
The suit was partly decreed, recognizing the property as Waqf and nullifying the unauthorized Waqf deed. The defendants were restrained from alienating the property.
Issues: The main issues included the maintainability of the suit, the status of the property as Waqf, and the rights of the parties involved.
Ratio Decidendi: The court ruled that the property was a Waqf by user, affirming that unauthorized transactions regarding Waqf properties are void. The plaintiffs were entitled to recognition of their rights, while the defendants lacked authority to execute the Waqf deed.
Result: The revision petitions were dismissed, and the tribunal's findings were upheld.
| Table of Content |
|---|
| 1. background of the dispute over waqf property ownership. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. final ruling on the waqf property and management. (Para 8 , 9 , 24) |
| 3. arguments presented by both parties regarding property management. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 4. court's observations on waqf property definitions and implications. (Para 17 , 18 , 19 , 20 , 21 , 22) |
| 5. legal definition of waqf under the wakf act. (Para 23) |
JUDGMENT
[CRP(WAKF) Nos.16/2017, 39/2017]
AMIT RAWAL, J
This order shall dispose of two CRPs bearing Nos.39 of 2017 (filed by the plaintiffs in the original suit) and 16 of 2017 (filed by the 1st defendant in the original suit) arising from the common judgment dated 09.12.2016 in O.S.No.06 of 2003. In CRP No.39 of 2017, petitioners are the plaintiffs, whereas CRP NO.16 of 2017, petitioner is the 1st defendant.
2. The facts leading to the filing of the original suit No.06 of 2003 are enumerated herein below :
The plaintiffs, three(3) in number i.e., Abdulla Koya, Imbichikoya Thangal and Muhammedkoya Thangal arrayed the Secretary of Bafakki Yatheemkhana Valavannoor Amsom, Desom Board as defendant No.1, defendant Nos.2 to 11 members of ancient Kananchery Mambra Thangal family and the Wakf Board as defendant No.12, averred that they are members of the same family, that is, the plaintiffs and defendant Nos.2 to 11 were close relatives. In support of the aforementioned averment, reliance was laid to A schedule, the genealogy of the plaintiffs and the defendants 2 to 11. The dispute revolve around plaint B schedule property having an extent of 60 cents of land comprised in Survey No.476/3 and 476/7 in Kalpakanchery village belonging to the aforementioned family from time immemorial. The plaint B scheduled consist of a tomb called as “Mambra Makham Shereef” and graveyard attached thereto. The aforementioned tomb and graveyard had been used for many years.
3. The tomb was administrated and maintained firstly by one Saidu Mohammed Thangal who is none other than the great grandfather of the plaintiffs, vested with the members of Kannachery Mambra Thangal Family. The body of the above said Saidu Mohammed Thangal was buried in the main building of the tomb. Subsequently, his brother and sister were also buried in the main building. After his death, his son namely Saidu Mohiyudheen Abdul Khader Thangal was in the administration of the tomb. After his death, his children namely Mohammed Koya Thangal, Saidu Abdulla Thangal and Saidu Ibrahim Thangal were administering the tomb jointly. It was further averred that Saidu Abdulla Thangal was none other than the paternal grandfather of the plaintiffs, when he expired, his brother Saidu Ibrahim Thangal had managed the tomb. The father of the plaintiff namely Cheriya Kunhikoya Thangal and his siblings were residing in a property attached to the above said tomb. Aforesaid Saidu Ibrahim Thangal had filed a civil suit against the father of the plaintiffs namely Cheriya Kunhikoya Thangal, wherein it was found that the tomb belongs to the entire family and no member in the family can have any special right over the tomb, therefore, the tomb and the graveyard comprised in the B Schedule property is a private Waqf and no member of the family can claim exclusive or special right over the said property.
4. The cause of action to file the suit arose only when the plaintiffs came to know about the notice dated 05.11.2002 with regard to the execution of the registered document dated 09.10.2002 executed by defendants Nos.2 to 11 in favour of defendant No.1. B schedule property was a total extent of 60 cents of land consisting of Survey Nos.476/3 and 476/7.
5. Defendants 1 to 11 filed a joint written statement denying the plaintiffs to be the members of the Kananchery Mambra Thangal Family much less the genealogy as well as any right of burial in the graveyard. Rather reiterated that the plaint B schedule property belonged to Saidu Ibrahim Thangal, who was none other than the pater
