P.C. Balakrishna Menon, J.
1. In this second appeal at the instance of the defendant the Kerala Wakf Board (hereinafter referred to as 'the Board') the only question for decision is as to whether the nine items of suit properties constitute a 'Wakf' within the meaning of the Wakf Act, 1954 (Central Act 29 of 1954), hereinafter referred to as 'the Act'. The Board after enquiry under Section 27 of the Act came to the conclusion that the suit properties are wakf properties and registered the same as a wakf under Section 28 of the Act as per its order Ext. A8 dated 26-9-1970. The suit is under Sub-section (2) of Section 27 of the Act to set aside Ext. A8 order and to declare that the suit properties are not wakf properties. The trial court held that there is a valid dedication of the properties as a wakf as per the provisions contained in Ext. A4 karar in the family of the plaintiff, and on that finding the suit was dismissed. In appeal the lower appellate court has reversed the decision of the trial Court on its finding that there is no proof of dedication of the properties as a wakf and declaring that the suit properties are not wakf properties.
2. The plaintiff is the eldest male member of the Valia Maliakkal family. The members of the family entered into a karar Ext. A4 dated 27-2-1923, as per which the suit properties were kept in common under the terms and conditions mentioned in the document. According to the defendant there is a dedication of the properties as wakf by the terms of the document Ext. A4. Even prior to that the suit properties had become wakf properties for the reason of immemorial user as places of worship of the Muslim community. Cls. (4), (5) and (10) of Ext. A4 deal with the suit properties. Items 1 to 6 are situated in Quilandy, Calicut District and items 7 to 9 are in Alleppey. Item 1 is the Valiamaliakkal paramba where the family has its residential house in Quilandy. Items 1 to 4 are contiguous properties lying in the same survey number. Items 7 to 9 are also contiguous properties situated at Alleppey. There is no dispute that some of the members of the plaintiff's family live at Quilandy and others a Alleppey. Items 2 and 8 are described as 'mukamb' parambas in Ext. A4. The 'mukamb' is a place where the ancestors of the plaintiff had been buried.
3. Ext. A4 deals with the properties described in schedules A and B. The B schedule properties are partitioned among the executants of the document. The A schedule properties are kept in common to be managed by the eldest male member of the Valia Maliakkal family. Clause (4) of Ext. A4 refers to the properties kept in common and the two mukambs at Quilandy and Alleppey to be managed by the eldest male member of the family. Cl. (5) authorises the second executant of the document, who was at that time the eldest male member of the family, to manage the A schedule properties and to pay a sum of Rs. 135/- from out of the net profits of Rs. 270/-from the A schedule properties to the first executant and appropriate the balance Rs. 135/- for the use of executants Nos. 2 to 6. There is a further direction that the share of annual profits due to the first executant should be paid to her during her lifetime and thereafter to her children. On the death of the second executant the 3rd executant and after him the 4th executant and thereafter the eldest male member of the family for the time being is to manage the A schedule properties. Cl. (10) recites that since the A schedule properties are kept as properties of the mukamb, those items including the mukambs cannot be partitioned or encumbered, and if any encumbrance is created, the same will not be binding on the family or the properties concerned.
4. It is on the basis of the recitals contained in Ext. A4 that the first Court held that the properties described in schedule A of the said document had been dedicated as a wakf. 'Wakf' is defined in Section 3, Cl. (1) of the Act 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--
(i) a wakf by user; (ii) mashrut-ul-khidmat; and
(iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable;'
A conjoint reading of Cls. (4), (5) and (10) of Ext. A4 makes it clear that there is no dedication of the properties as a wakf. The properties are kept in common under the management of the eldest male member of the family with directions for payment of the surplus income to the members of the family including himself. The expression in Cl. (10) that the A schedule properties are kept as properties of the mukambs should be understood in the light of the earlier recitals in Cls. (4) and (5). Ext. A4 contains a declaration that the properties belong to the family of the executants as acquisitions by some of the late members of the family referred to in Cl. (4) and also obtained as ancestral properties of the family. The expression in Cl. (10) 'Matter in vernacular-omitted (Ed.)' is to make sure that the properties will not be partitioned or encumbered by the members of the family and the managers for the time being. There is nothing in the document to spell out a dedication of the properties as a wakf. A Division Bench of this Court in the decision in Mariyumma v. Andunhi 1979 Ker LT 231 had to construe a document where the provision was as stated in para 3 of the judgment as follows :
'.....It is further recited that fromthe income of the C schedule properties, 'in accordance with our religious practice, for the religious good of our family and also for the salvation of the soul of our deceased ancestors Moulood should be read.....
There is also a stipulationthat the property should be free from alienation in favour of strangers and it should not be burdened with debts, attachments andinjunctions and that it is subject to the above provisions that the property has been allotted jointly to Nos. 4, 5 and 6.'
In considering the question whether the properties concerned were dedicated as wakf properties, the Division Bench stated thus at page 232 : --
'4. It is fundamental for the creation of a valid wakf that there should be a permanent dedication of the property forming the subject-matter of the wakf for any purpose recognised by the Musalman law as religious, pious or charitable. What is involved in the creation of a wakf is 'the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings. As a result of the creation of a wakf, the right of wakf is extinguished and the ownership is transferred to the Almighty' (see Zain Yar Jung v. Director of Endowments, AIR 1963 SC 985 at 989). In the case before us, under the deed Ext. A2 there is no dedication, at all, of either the corpus or even the income of the property for any religious or charitable purpose. The ownership of the property is not transferred in favour of God the Almighty; on the other hand, it is expressly stipulated that the property shall remain as the joint property of executants Nos. 4, 5 and 6 and they are to hold the property from generation to generation subject only to the restrictions that the property should not be alienated in favour of any strangers nor burdened with debts, attachments or injunctions and that from out of the income the recitation of Quran and reading of Moulood in the family house should be got performed. Since the basic requisite that there should be a permanent dedication of the property for religious or charitable purposes is not satisfied in the present case, it must be held that no valid wakf has been created in respect of the plaint schedule property under Ext. A2. We may also state that the reading of Moulood in the private residence of the family and recital of the Quran at the said place cannot by themselves, be regarded as objects for which a wakf can be validly created (see Kunhamutty v. Ahmad Musaliar, AIR 1935 Mad 29). The contrary view taken by Varadaraja Iyengar, J. in Koyamkutty v. Muhammad, 1957 Ker LT 874, is based on a misunderstanding of the scope of the decision of the Madras High Court in Abdul Sattar Ismail v. Hamid Sait, AIR 1944 Mad 504. The relevant portion contained in the document that came up for consideration by the Madras High Court was one for the reading of the Quran in public places and also at private houses and not merely at the residential house of the wakif or any member of his family. The Madras High Court found on the construction of the said recital contained in the document that the reading of the Quran provided for therein was for the benefit of all Musalmans since it was to be performed by expending the funds of the wakf both in public places as well as in private houses. We are unable to regard this decision as an authority laying down that a provision for the reading of the Quran in the private house of the donor will constitute a valid object for creation of a wakf. The observations to the contrary effect contained in Koyamkutty v. Muhammad, 1957 Ker LT 874, cannot, therefore, be regarded as laying down the correct law.' In the present case the document does not contain any provision directing the manager to apply the income of the properties for any purpose recognised by Muslim law as pious, religious or charitable. The surplus income after meeting the expenses is to be apportioned among the members of the family. What are the expenses to be met is not specified in the document. The document clearly recites that the properties are kept in common as 'vernacular matter omitted -- Ed.' to be managed in accordance with the terms and conditions mentioned therein. Since I do not see any expression of dedication of the properties as a wakf, it cannot be said that a valid wakf has been created under Ext. A4.
5. It is next contended that the mukambs in question are wakf by immemorial user and the suit properties are wakf properties. It is not disputed that the mukambs are the places where the deceased members of the plaintiff's family are interred. The Valia Maliakkal family of the plaintiff is a family of 'Thangals' and Thangals are said to be the direct descendants of the Prophet. The ancestors of the plaintiff interred in the mukambs were holy men and since the public were allowed to worship at those places considered holy by the Muslim community, there is a valid wakf by immemorial user and dedication for a purpose recognised by the Muslim law as pious and religious should be presumed to constitute a wakf within the meaning of the Wakf Act. In Mulla's 'Principles of Mahomedan Law', 18th Edn. p. 204 it is stated as follows : --
'188. Wakf by immemorial user.-- If land has been used from time immemorial for a religious purpose, e.g., for a mosque or a burial ground or for the maintenance of a mosque, then the land is by user wakf although there is no evidence of an express dedication.'
It is further stated : --
'.....If a building has been set apart asa mosque it is enough to make it wakf if public prayers are said there with the permission of the owner. Both a mosque and a saint's tomb become wakf by user. If a mosque has stood for a long time and worship has been performed in it, the Court will infer that it does not stand by leave and licence of the owner of the site but that the land is dedicated property and no longer belongs to the original owner.....
In the absence of anintention to dedicate or of a dedication by the owner, user will not divest land of its private character and make it wakf. The construction of a mosque in a private house does not by itself mean that the public are entitled to worship there. There must be proof of dedication or of user such as by the saying of prayers in a congregational manner.'
The same author at page 246 says : --
'218. Public Mosques.-- Every Mahomedan is entitled to enter a mosque dedicated to God, whatever may be the sect or school to which he belongs, and to perform his devotions according to the ritual of his own sect or school. But it is not certain whether a mosque appropriated exclusively by the founder to any particular sect or school can be used by the followers of another sect or school.
The right to offer prayers in a mosque is a legal right, for the disturbance of which a muslim is entitled to seek relief in a court of law.'
Asaf A. A. Fyzee is his 'Outlines of Muhammadan Law', 3rd Edn. states at page 311:--'(1) Mosque Dedication. To consecrate a mosque, it is not sufficient merely to construct it: (i) the building must be separated from the other property of the owner, (ii) a way must be provided to the mosque, and (iii) either public prayers must be said or possession must be delivered to the mutawallis. In Ithma 'Ashari law', the dedication is complete where a formal declaration has been made and prayers have been said....A mosque does not belong to any particular sect. It is open to all Mussalmans to go in and offer their adoration to the Almighty. Suppose a Hanafi erects a mosque; the Shafeis, the Malikis and the Hanbalis may pray there equally with the members of the Hanafi sect. Nor is there any objection to a shiah going and praying there according to his own ritual. The Hanafi mutwalli cannot prevent any person, so long as he is the worshipper of God, and does not interrupt or disturb the worship of others from coming and offering his adoration to the Almighty. This view of the law was given effect to in the case of Ata-Ullah v. Aziz-Ullah 1889 ILR All 494 where the Allahabad High Court held that a mosque, being dedicated to God, is for the use of all Mahomedans, and cannot be lawfully appropriated to the use of any particular sect.'
Referring to 'Takia' the learned author states at page 315: --
'A takia is, literally, a resting-place; hence it may be a tomb or a burial ground.
A takia is a place where a fakir or dervish (a person who abjures the world and becomes an humble servitor of God) resides before his pious life and teachings attract public notice, and before disciples gather round him, and a place is constructed for their lodgement (Mohiuddin v. Sayiduddin, 1893, ILR 20 Cal 810, 822). A takia is recognised by law as a religious institution, and a grant or endowment to it is a valid wakf or public trust for a religious purpose,
The real idea is that sanctity is attached to a place wherein a saintly man, having taken refuge from the world, has taught spiritual truths all his life and has finally died and lies buried. Not every takia is necessarily a wakf, but some may become so by long user, or by endowment.'
Referring to a public cemetery the learned author states at page 318 : --
'A cemetery is a consecrated ground and is not a private property; whether it is a burial ground or not depends upon the number of persons buried there or evidence of dedication derived from the testimony of witnesses or reputation.
A cemetery once created continues to be so even though there remain no traces of the dead, not even the bones. If the land has been used as a burial ground for a long time, it becomes wakf by long user, although there is no evidence of an express dedication.' In the decision of the Bombay High Court in Maher Husein v. Alimahomed, AIR 1934 Bom 257 it is stated at page 264 : -- 'The authorities cited show that there must be a declaration of dedication which should be made contemporaneously with the act of dedication: Banubi v. Narsingrao. The wakif must divest himself of the ownership of the property: Muhammad Yunus v. Muhammad Ishaq Khan. Physical delivery is not essential, but such possession as is possible must be given: Abadi Begum v. Kamiz Zainab. There are special .rules in the case of mosques--Willson's Anglo-Mahomedan Law, Section 320; Amir Ali's Muhammadan Law, Vol. 1, page 394 ff.; and Tyabji's Principles of Muhammadan Law, Section 514. When once a building has been set apart as a mosque it is enough to make it wakf if public prayers are once said there with the permission of the owner. But though a declaration of dedication and completion by some act giving practical effect to it are essential, it was not always necessary that there should be any direct evidence of these things. Dedication may be inferred from long user as wakf property: see Court of Wards v. Ilahi Bakhsh and Muhammad Hamid v. Mian Mahmud; and other cases cited in Tyabji's Principles, Section 458. There can be no doubt as to this principle which is recognized in all the text books.'
6. From the above authorities it is clear that dedication as a wakf will be presumed by immemorial user. It is sought to be made out on the evidence in the case that the Muslim public of the locality had been using the two mukambs as places for prayer from time immemorial and hence the presumption of a valid dedication as a wakf should be drawn in this case. The evidence in the case is not, however, sufficient to hold such an immemorial user as to constitute a wakf of the two mukambs and render the suit properties as belonging to the wakf. The plaintiff examined as P. W. 1 has stated that it is because of the existence of the two mukambs that the properties described in schedule A in Ext. A4 were kept in common to be managed by the eldest male member pf the family. The mukambs, according to him, are the places where his ancestors had been interred. The mukamb has got two rooms and a side-room. His ancestors are buried in one room, and the side room and the adjoining room is used for funeral prayers. Burials have taken place also outside the building in item 2 and the area is enclosed by a compound wall. There used to be Mouloods at the mukamb. P. W. 2 is the seniormost member of the Valiakath family which is also a family of Thangals. He has deposed that there are mukambs in lands belonging to his family where his ancestors had been buried, but no such mukamb had been registered as a wakf under the Wakf Act. The Board had taken no proceedings to declare those mukambs for the purpose of registration as wakfs under the Act. D. W. 1 is a native of Quilandy examined to prove that public prayers are conducted inside the mukamb. The mukamb, according to him, is 'vernacular matter omitted -- Ed.' A 'vernacular matter omitted -- Ed.' is different from a Juma Mosque where congregational prayers are held every Friday. In Maulana Muhammad Ali's 'A Manual of Radith' the following commandment by the Holy Prophet is quoted at page 158 : --
'O you who believe: When the call is given for prayer on Friday, hasten to the remembrance of Allah and leave off business.'
commenting on this commandment the learned author says :
'Jumu's (from jamu's, he gathered together) is literally congregation; it is the name by which the sixth day of the week is known. The verse quoted above contains an express commandment to all Muslims to leave off business of every kind to join it. The prevalent idea that Friday service can be held only in big towns or under Muslim rule has no sanction in the Holy Quran, which requires all Muslims wherever they may be to join it.' At page 102 of the same book, it is stated :
'The prayer-service of Islam is essentially a congregational service, and has, besides the development of the inner self of man, through communion with God, other ends as well in view, which show that a unique force the Islamic prayer is in the unification of the human race. In the first place, this gathering of all people living in the same vicinity five times daily in the mosque, is a great help to the establishment of healthy social relations, the circle becoming wider in the Friday service.
and still more extensive in the Id gatherings. But the jama's not only promotes special relations; what is far more important it levels down social differences. In the congregational prayer all Muslims stand shoulder to shoulder before their Maker, the king along with his poorest subject, the rich arrayed in costly robes with the beggar clad in rags, the white man along with his black brother.'
The Juma prayer is, therefore, the congregational prayer held on every Friday. According to D. W. 1 there used to be the call for prayer (vernacular matter omitted -- Ed.) from the mukambs. He has, however, confessed that the mukamb is a place where the deceased members of the plaintiffs family are interred. The mere fact that there used to be prayers where the ancestors of the plaintiff's family had been buried, does not render the place of burial a wakf unless the user by the public is as of right and is also immemorial. Ext. A7 slated 24-1-1880 is the judgment of a Division Bench of the Sadr Court of Travancore in A. S. No. 298 of 1054 against the judgment of the Zillah Court of Alleppey in O. S. No. 760 of 1052. Ext. A7 contains also the judgment of the Zillah Court in ancient Malayalam, an admixture of Tamil and Malayalam. A translation copy of Ext. A7 submitted by the plaintiff to the Board is produced by the defendant as Ext. Bl. The judgment of the Zillah Court can be understood with reference to its translation contained in Ext. Bl. The Sadr Court has given its judgment in English. The suit O. S. No. 760 of 1052 was by the plaintiff's predecessor-in-interest (the then seniormost member of his family) for recovery of possession of the mukamb at Alleppey and the articles kept therein from the defendant in that suit, who, according to the plaintiff, was only a servant employed to assist him in the management of the mukamb. The defendant therein set up a right in himself to manage the mukamb and its properties. The Zillah Court as well as the Sadr Court held that the mukamb and its properties belonged to the plaintiff, and that the defendant is only a servant employed by him. The suit was decreed for recovery of possession of the mukamb and the articles kept therein from the defendant and the decision of the Zillah Court was confirmed in appeal by the Sadr Court. Ext. A7 would clearly show that even as early as 1880 the plaintiffs predecessor-in-interest had successfully asserted his separate title as against the claim of the defendant in that suit that he is entitled to be in possession of the mukamb and its assets, and the plaintiffs title was upheld. The plaintiff in Ext. A7 suit was the then eldest male member of the family. His assertion of title in himself can only be on behalf of his family who had admittedly owned the mukamb and its properties. In Ext A4 karar already referred to there is a clear assertion in Clause (4) that the mukamb and its properties mentioned in schedule A are kept in common without partition under the management of the eldest male member of the family with directions to appropriate the income in the manner provided for in the document. I have already adverted to Clause (10) of Ext. A4 and found that the recitals in Clause (10) are not sufficient to divest the title of the family and vest the same in the Almighty as a wakf. The evidence in the case clearly shows that the two mukambs are only the places of burial of the ancestors of the plaintiff. The mukambs are not mosques where every member of the Muslim community has a right of access for prayers and devotions. Exts. A4 and A7 would clearly go against the defendant's plea of a wakf by immemorial user. The oral evidence adducced is grossly insufficient to hold that the mukambs have become wakfs by immemorial user applying a presumption of dedication by such user. For the aforesaid reasons I confirm the decision of the lower appellate Court and dismiss the Second Appeal with costs.