Jagannatha Shetty, J.
1. This appeal by the Karnataka State Board of Wakfs has been preferred against the judgment and decree dated March 20, 1974 made in 0. S. No. 84 of 1966 - by the Additional Civil Judge, Mysore.
2. The facts in brief are these :
The Board of Wakfs published in the Official Gazette dated Nov. 4, 1965 a list of Wakfs including the property 'Fathimabi Trust' in Kalamma Temple Street, Mandi Mohalla, Mysore. Mohamed Nazeer Ahmed - the plaintiff - claiming that property as his personal property, instituted the suit out of which this appeal arises. The suit was for a decree to delete the said property from the list of Wakfs on the ground, among others, that it was not Wakf property; that the original owner did not dedicate it for charitable or religious purposes; and the Commissioner of Wakfs had no material whatsoever to include the property in the list of Wakfs.
3. The Wakf Board while resisting the suit, contended inter alia, that the Commissioner of Wakfs, after making a proper enquiry, made a report to the State Government that that property was dedicated by Fathimabi in her Will dated Sept. 17, 1872 for the benefit of the travelers (Mussafirs) and for Khairat. The property consisted of a small building of 14 Ankanams with vacant space around it. In the said Will, Fathimabi had also directed his eldest son as to how he should administer the property. She constituted him as Mutawalli and after him his descendants. Accordingly, the property had been managed. It was also contended that the suit was barred by the principles of res judicata since the plaintiff's predecessors-in-title were asserting in some previous litigations that the property was a Wakf property.
4. Denying all the allegations of the Wakf Board, the plaintiff filed a detailed reply statement giving the particulars as to how the property was dealt with by succes. successive owners and the improvements made by thern. He also contended that there was no permanent dedication of the property for any purpose recognised by the Muslim Law as pious, religious and charitable, and the intention of Fathimabi as disclosed in her Will was only to create a family arrangement for better enjoyment of the property by her defendants.
5. In the light of these contentions raised in the pleadings, the Court below framed, among others, the issues as to the nature of the dedication made by Fathimabi, and the maintainability of the suit on res judicata, estoppel and locus standi of the plaintiff.
6. The plaintiff in support of his case, has examined as many as 18 witnesses and Produced a host of documents as against the two witnesses examined by the defendants. A certified copy of the Will of Fathimabi has been produced and marked as Ext. P-133 and its English version has been marked as Ext. D-4. It appears that the original Will could not be traced.
7. The Court below after considering the entire material decreed the suit holding as follows:-
The property was dedicated for the use of the travelers in general, but not exclusively for the poor persons. There was no pious or charitable or religious purpose for which the property was dedicated. The document was not a Will, but it was in the nature of a precept given by Fathimabi to her descendants. Fathimabi did not divest herself of her rights in the property nor there was a permanent dedication. The benefit of the property cannot be confined to Muslims alone since it was thrown open to Muslims and non-Muslims alike. So it cannot be regarded as a Wakf under the Mohammadan Law.
With regard to the directions found in the Will of Fathimabi, the Court below observed that they were in the nature of suggestions to her son and they have no legal effect and not binding on him. It was found by the Court, that the property always stood in the individual names of the descendants of Fathimabi in the municipal records and there is no record to show that the property was Wakf property. The plaintiffs father had hypothecated the property in favour of Parasurarn (P. W. 10) under a registered deed Ext. P-128. He got constructed four shops and after his death the plaintiff got constructed three shops and a house in the vacant space surrounding the property.
On the question of res judicata, the Court below observed that the statements made in the previous proceedings by the plaintiff's father would not bind the plaintiff or his descendants since those statements were made with an idea to resist the claims of the third parties and not with an intention to treat the property as a Wakf property.
With regard to the rights of the plaintiff to maintain the suit, the Court finally observed :
'It is sufficient in this case if the Court comes to the conclusion that the plaintiff is a person who has got some interest in the suit property. Hence, I have not attempted in this suit to find out as to what exactly is the right which the plaintiff has got in the suit property as against the other, descendants of Fathimabi.'
With these findings, the Court decreed the suit.
8. In this appeal, the principal question that arises for consideration is whether the dedication made by Fathimabi under Exhibit P-133 in respect of the suit property could be regarded as Wakf as defined under the Wakf Act, 1954. There is also an incidental question relating to the frame of the suit and the scope of the relief granted.
9. Mr. Farooq for the appellant urged that the plaintiff did not seek any declaration regarding his title to the suit property and the relief asked for was only to delete the property from the list of Wakfs published in the Mysore Gazette and the Court below was, therefore, not justified in decreeing the suit, in the absence of a finding that the Commissioner of Wakfs did not hold a proper enquiry.
10. There is hardly any substance in this contention urged for the appellant. It is true that the plaintiff did not ask for a declaration of title to the property, but the Court below understanding the contentions raised by the parties did frame an issue covering that question. The parties also knowing what the case pleaded by them was, have produced evidence on that issue and the Court on considering that evidence has held that there was'no Wakf created by Fathimabi. It is now too late to contend that that relief granted was beyond the scope of the suit.
11. The decision on the principal point urged for the appellant turns on the primary purpose for which the property was dedicated by Fathimabi under Ext. P-133. For immediate reference, the relevant portion of that Will is extracted hereunder:- (This matter being in Kannada we regret that we have to omit it here as we have no facilities for printing Kannada-Ed.)
The substance of the above recitals may be stated as follows:-
'1.. Phali i.e., Yakheri tiled house of 14 Ankanams and vacant site within these limits running north to south in the west out of (space) measuring 45 yards, east to west 31 sq. yards north to south is directed by me to be a charity for the use of the residence of persons of other places, and for maintaining this charitable work I have appointed the eldest son Jamedar Mohammed Hayath with liberty to him to improve the charity, that is, by getting the shops and houses constructed at his own cost in front of eastern and western portions of the site and deduct the cost of construction out of the rents derived therefrom and leave it gratis or leave the income also for Khairat and no other will have any right, title or interest or connection in respect of this property.'
12. It will be observed from the above recitals that the property was dedicated. for the use of the travelers coming from outside Mysore. The testator did not impose any restriction or condition as to caste, creed or religion of the travelers entitled to come and reside. The travellers may be Muslim or non-Muslims. They may be rich or indigent
13. The question is whether the dedication of this nature could be said to be al Wakf under the Wakf Act, 1954. Under the Mohammadan Law it is lawful for a Muslim to make a permanent dedication of any property, provided that it is in all respects ini accordance with the provisions of the Mohamadan Law. The Mohammadan ]awl recognises the dedication, the ultimate benefit of which is expressly or impliedly reserved for the proper or for any other purpose recognised by the Muslim law as religious, pious or charitable. It should be of a permanent nature with an ultimate religious motive. Thabji in his commentary on Mus-1 lim Law, Fourth Edition, page 546, has given some illustrations of the valid objects of Wakfs: One of the valid objects set out thereunder is for the use of travellers, but it should be applied to the poor excluding the rich among them. The same author at page 497 further states:
'Waqf is perhaps the most prominent form that charity takes amongst Muslims. But it has sometimes been the cause of a misapprehension that every charitable disposition must be classed as a waqf. A gift being made with a religious or charitable intention does not make it the less a gift though it is then termed sadaqa and being brought under the class of gifts with a return, it is irrevocable. The Indian Trusts Act is applicable to Muslims, but it does not affect a trust for a charitable object, whether created in the form of a waqf or otherwise.'
The following passage may also be noticed:
'A waqf and a trust have of course many things in common, but they may be distinguished in the following respects. (1) Waqf requires a religious motive; necessity for such motive is all but forgotten by the Indian Courts, in giving decisions upon waqf case. Whether it is possible to give effect to the law as laid down in the Texts and to the requirements of a religious motive, is a different question.'
14. Relying upon these principles, Mr. Farooq for the appellant submitted that a property dedicated for the use of the travellers for their shelter becomes a valid Wakf since it is a charitable purpose recognised under the Mohammadan Law. But the learned counsel, in our opinion, has missed the crux of the matter. Under Muslim Law a wakf should have a religious motive and it should be only for the benefit of the Muslim community. If it is secular, the charity should be to the poor alone.
15. We shall now examine the relevant provisions of the Wakf Act, 1954. Section 3(a) dedication beneficiary to mean 'a person or object for whose benefit a wakf is created and includes religious, pious and charitable objects and any other objects of public utility sanctioned by the Muslim law'.
Section 3 (1) defines 'Wakf' to mean 'the 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.. ... ...'
The scope of these provisions came up for consideration before the Supreme Court in Zain Yar Jung v. Director of Endowments : 1SCR469 , in which Gajendragadkar, J., (as he the was) observed at p. 988 :
'Consistently with this definition of 'Wakf, a beneficiary' has been defined by S. 3 (a) meaning a person or object for whose benefit a wakf is created and it includes religious, pious and charitable objects and any other, objects of public utility established for the benefit of the Muslim community. It is thus clear that the purpose for which a wakf can be created must be one which is recognised by Muslim law as pious, religious, or charitable, and the objects of public utility which may constitute beneficiaries under the wakf must be objects for the benefit of the Muslim community.'
The learned Judge continued:
'The Muslim character of the wakf is also emphatically brought out by certain other provisions of the Act. The provision to Section 15 (1), for instance, requires that in exercising its powers under the Act in respect of any wakf, the Board shall act in conformity with the directions of the wakf, the purposes of the wakf and any usage or custom of the wakf sanctioned by the Muslim law. Similarly, Section 15(2)(i) lays down that the Board has power to sanction leases of property for more than three years or mortgage or exchange properties according to the provisions of Muslim law. Section 21 requires that there shall be a Secretary to the Board who shall be a Muslim and he shall be appointed by the State Government in consultation with the Board; and Section 13 provides that a person shall be disqualified for being appointed a Member of the Board if he is not a Muslim. There can, therefore, be no doubt that the wakfs with which the Act deals are trusts which are treated as wakfs under the definition of Section 3(1) and as such, a trust which does not satisfy the tests prescribed by the said definition would be outside the Act. This position is not disputed.'
The learned Judge after distinguishing a wakf from a public trust, observed at paragraph 13, page 989;
'Having noticed this broad distinction between the wakf and the secular trust of a public and religious character, it is necessary to add that under Muslim law, there is no prohibition against the creation of a trust of the latter kind. Usually, followers of Islam would naturally prefer to dedicate their property to the Almighty and create a wakf in the conventional Mohammedan sense. But that is not to say that the follower of Islam is precluded from creating a public, religious or charitable trust which does Dot conform to the conventional notion of a wakf and which purports to create a public religious charity in a non-religious secular sense. This position is not in dispute.'
Applying these statements of law to the facts of the present case, one cannot conclude that Fathimabi had constituted a wakf under her Will Ext. P-133 since the property was dedicated for the, use of all the travelers irrespective of the religion and position of persons.
16. In the conclusion that we have reached, it is necessary to consider the nature of the plaintiffs right in the suit property. It is undisputed that the property is continually in his possession or under his predecessorsin-interest. They have got constructed some shops and a house in the adjoining space. The plaintiff, therefore, has sufficient interest to maintain the suit
17. We, however, make it clear that we shall not be understood to have expressed any opinion in regard to the exact right, title and interest of the plaintiff in the suit property.
18. In the result and for the reasons stated, the appeal fails and is dismissed. But In the circumstances, we make no order as to costs.
19. Appeal dismissed.