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2023 Supreme(Online)(KER) 16323
HIGH COURT OF KERALA
AMIT RAWAL, C.S. Sudha, JJ
E.M.KOYA HAJI – Appellant
Versus
PRESIDENT, KUTTIKKATTOOR MUSLIM JAMA-ATH MUSLIM COMMITTEE – Respondent
CRP(WAKF) 28 2020
G.SREEKUMAR (CHELUR),ATH MUSLIM COMMITTEE 2) V.UNNIMOYI HAJI,Advocate
Valid Wakf property dedication requires compliance with the statutory framework; unauthorized transfers lack legal validity.
Headnote:
Wakf - Property Dispute - Wakf Act, 1995 - Sections 3(r), 36, 51(1A)
Fact of the Case:
The case involved a property dispute arising from alleged unauthorized alienation of Wakf property by the President of a Jama-ath without proper resolution, resulting in conflicting claims between two Muslim societies regarding ownership and rights over charitable properties.
Finding of the Court:
The court upheld the Tribunal's ruling that the purported transfer of Wakf property was void due to the failure to obtain prior approval from the Wakf Board, emphasizing the necessity of permanent dedication under Muslim law.
Issues: Whether the transfer of Wakf property was valid despite lack of approval from the Wakf Board and whether the properties were properly dedicated for Wakf purposes.
Ratio Decidendi: The permanent dedication of property as Wakf requires compliance with legal statutory provisions, and transfers without Board sanction are void ab initio under the Wakf Act, reflecting the protection of Wakf properties from unauthorized alienation.
Final Decision: Both revision petitions were dismissed, affirming the Tribunal's order.
O R D E R
Amit Rawal, J.
1. This order shall dispose of two revision petitions; C.R.P.(Wakf)
Nos.25/2020 and 28/2020 arising out of the common order of the Waqf Tribunal dated 10/07/2020 dismissing Wakf Original Application Nos.42/2019 and 56/2019. The facts leading to the litigation between the two sets of society in brief are as follows :
On 30.12.1954, Kuttikkattoor Muslim Jama-ath Committee was registered under the Societies Registration Act, 1860 whereas Kuttikkattoor Muslim Yatheem Khana was registered as Wakf under erstwhile provisions of the Wakf Act, 1954, on 20.09.1961. The Wakf under the unamended and amended provisions of the Act means a permanent dedication by any person of any movable or immovable property for any purpose recognized by Muslim law as pious, religious or charitable. By virtue of the following five documents, the respondent Jama-ath acquired the ownership document Nos.4356/1987 (item No.1), 3661/1988 (item Nos.2 & 3), 1692/1990 (Item No.4) and 1477/1992 (Item No.5). It has shops, schools, training institutions, orphanage etc. The whole purpose as per the definition of Wakf is for pious purpose as well as for orphanage. Few sets of Muslim community registered themselves under the Societies Registration Act in 1992 as Kuttikattor Muslim Yatheem Khana but all the proceeds of rent etc.
were being apportioned to the Jama-ath.
2. The then President of Jama ath Mr. Abdul Khader in his individual capacity without any authority or power executed a deed bearing no. 139/1999 on 25.02.1999 by assigning not only title, interest but possession as well. This fact did not come to the notice of the Jama-ath. In the year 2005 the aforesaid Society (hereinafter called YK) submitted an application under provisions of Section 36 (1) of the Wakf Act, 1995 , for the purpose of Registration, to the Board.
3. The Board, as per the provisions of the Section invited objections from the society. Jama-ath raised objection and alleged that registered document no.139/1999 could not have been executed in favour of 'YK' as the character and nature of the property remained as Wakf. The Wakf property cannot be alienated in legal parlance and also as per the various pronouncements. Simultaneously a civil suit bearing No.72/2006 was filed, wherein two O.As. were preferred challenging the registered documents, as also for amendment. However the said suit was dismissed for default. Noticing all these factors, the Board vide decision dated 16.11.2015, allowed the application of YK and registered them as a Wakf. It is the said order which was assailed before the Tribunal by the Jama-ath and one other interested third party who had interest in protection and welfare of the property belonging to the Jama-ath.
4. Tribunal vide the impugned order, noticing the provisions of Section 51 (1A) of the 1995 Act, set aside the document 139/1999 on the ground that there could not be any alienation without the permission of the Court. The said order has been assailed vide two C.R.Ps. in view of the fact that two W.O.As. were preferred before the Tribunal.
5. Mr.Sreekumar Chelur, the learned Senior counsel representing the petitioners while challenging the order, raised the following submissions: (1) The four(4) documents in five(5) items, i.e. 4356/1987 (item No.1), 3661/1988 (item No.2 & 3), 1692/1990 (Item No.4) and 1477/1992 (Item No.5) did not envisage that the nature and character of the property was Wakf. It was only for a charitable purpose and in the absence of any dedication to the Wakf, there was no need of taking permission of the Board as envisaged under Section 51 (1A) of the Act.
(2)YK was not properly advised and were amiss in submitting an application under Section 36A and sought indulgence of this Court at this stage for withdrawal of the said application.
(3) In support of the first argument, the ratio decidendi culled out in paragraphs 8 and 10 of the judgment of the Division Bench of this Court in Kerala State Wakf Board v. Ansari Charit
