1. The plaintiff-Wakf Board filed a suit in the court of the Principal District Munsif, Tiruchirapalli (0. S. No. 253 of 1975) for declaration that the suit property is wakf property and for possession and for other reliefs. A wakf-nama was executed on 1st April 1940 the registration copy of which has been marked as Ex. A. 2. The executant is one Ebramsa Rowilier and the document is called wakf-cum-settlement. One of the properties covered by this wakf was alienated by one Jaithoon Bibi to the, defendant on 26th Sept. 1963, for a sum of Rs. 2000 and the alienee was in possession. The Wakf Board stated that the alienation was beyond the powers of the alienor and that the alienation was not binding on the Wakf Board. The possession of the defendant was said to be unlawful and, therefore, the suit was filed for declaration and possession.
2. In the written statement the alienee defendant denied the existence of the wakf or its character as a public wakf. According to the defendant he had purchased the property from an absolute owner, namely, the said Jaithoon Bibi, and he was in possession of the property since then.
3. The trial Court decreed the suit with costs and on appeal the learned Third Additional Subordinate Judge reversed the judgment and held that the plaintiff-Wakf Board was not entitled to possession. The Wakf Board has filed the present second appeal and at the time of the admission the following substantial question of law was framed as arising out of the judgment of the lower appellate court-
'On the finding of fact arrived at by the courts below, whether the plaintiff Wakf Board is not entitled to possession of the property?'
The trial court found that after enquiry the Wakf Board issued a 'notification and that the formalities contemplated by Sec. 5 of the Muslims Wakf Act had been completed in the present case. The suit property was thus held to be, wakf property. The lower appellate court confirmed this finding. The only difference of view between the trial court and the lower appellate court was that Ex. A. 2, in the view of the lower appellate court, was a private wakf and possession and management could only be with the family of the settlor, namely, Ebramsa Rowther. It was on this reasoning that the lower appellate court has come to the conclusion that the plaintiff-wakf board was not entitled to recover possession of the suit property. It may be mentioned here that the effect of the decision of the lower appellate court is to hold that the alienation was not proper. The question that survives for consideration is whether, on the context of the facts of this case, the Wakf Board was entitled to recover possession of the property?
4. The document is in Tamil, Ebrarnsa Rowther constitutes himself as the Manager of the properties covered by Ex. A. 2, and he would enjoy the properties only in his capacity as such Manager. After his death, his son Khader Batcha would be the Manager. Thereafter a suitable person among the members of the family was to be constituted as the manager. Properties were to be purchased in the name of T. K. Ebramsa Rowther estate. There is a ban on alienation either by the Manager or by anybody who is in management of the properties. A lease deed for a period not less than three years could be executed. There is also, provision for making exchanges of the trust properties with other properties. The person in management was to draw a sum of Rs. 600 as allowance per annum. Every person who was to be in management of the properties after the lifetime of Ebramsa Rowther was to pay the taxes and incur the necessary expenses for the maintenance of the properties. The balance of the income was to be divided into 8-1/2 shares and half a share was to be reserved for unforeseen expenditure. It would be constituted into a fund and according to the circumstances property could be purchased out of it. During the period of Ramzan gruel was to be supplied to poor people and also clothes were to be distributed out of one share of income. Out of the eight shares, the income from the seven shares excluding the share for charity was to be individually allotted to the respective branches. Thus one share alone was to be utilised for the pious and religious purposes mentioned above.
5. The learned counsel for the Wakf Board brought to my notice a decision of a Bench of the Allahabad High Court in U. P. Sunni Central Board of Wakf v. Smt. Hasan Jehan Begum, : AIR1977All18 . In that case the court examined whether a wakf-alal-aulad was a 'wakf' in the context of S. 3 of the U. P. Muslims Wakfs Act of 1960. The definition of a wakf is the same as in the present Act. In dealing with the question whether the wakf in that case was a wakf-alal-aulad, the Allahabad High Court pointed out that the crucial point was whether the entire property was dedicated for purposes religious, pious or charitable and that if the entire properties were dedicated for secular and for religious, Pious and charitable purposes, then the entire properties would be deemed to be dedicated for both purposes. Unless it was possible to determine the extent to which the properties had been dedicated for religious, Rious and charitable purposes, it was held that the entire properties will have to be deemed to be dedicated to God and subject-matter of the wakf, At page 20, the learned Judges have observed-
'In our opinion, unless it is possible to determine the extent of the property out of the property which is the subject matter of the wakf-alal-aulad meant for religious, pious or charitable purposes, the entire property will be the subject-matter of the wakf, meaning of the Wakfs Act. The question of determining the extent within the quest can practically arise only in a rasn in which there are a number of properties and some of them are earmarked for purposes recognized as religious, Pious or charitable and wakf or his descendants. It may also arise in a case where a share in a property or a part of a property has been earmarked for the two purposes. 'In the present case, neither of the wakfs contain such a direction. The entire property has been dedicated for the purposes recognised as religious, pious and charitable. It may also be possible to say that the property which has been dedicated for purposes religious, pious or charitable, is the entire extent of the property. The entire properties under the deeds will, therefore be deemed to be wakf within the meaning of Section 3 (11) of the Wakfs Act.'
Considered in the light of this judgment, in the present case also the property would have to be treated as a wakf, as there is non-partial dedication.
6. The learned counsel for the respondent submitted that this is a case of dedication for pious or religious purposes only to the extent of one share out of eight and a half and, therefore, it would not be a case of public wakf at all. I am unable to agree with this submission. Where there is no separate disposition of property for public charitable purposes and private purposes, as known to Mohammadan Law, the wakf will be taken as a dedication in favour of the Almighty, and the entire property will have to be treated as wakf property. In V. Mohammed Mahin v. Madras State Wakf Board. : AIR1968Mad243 K. S. Venkataraman J. has held in similar circumstances that there would be a wakf and that the enjoyment by the manager for the time being could only be subject to the conditions of the wakf. The prohibition against alienation was also construed to mean that the document could only be treated as a wakf-alal-aulad. Even where there is a concurrent and immediate gift for charitable objects in a wakf created in favour of one's own family children or descendants, the learned Judge pointed out that it would warrant the implication of an ultimate trust for those objects on the failure of the family or descendants. This decision does not, in any way, support the contention of the learned counsel for the respondent that this is not the case of a wakf-alal-aulad at all. The definition provision, in so far as it is material, of the Wakfs Act, 1954, runs as follows: -
' 'Wakf means 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. ...(iii) A wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim Law as pious, religious or charitable'
7. In the present case, there is no separate dedication for pious religious and charitable purposes and for purposes of the maintenance of the members of the family. Therefore the entire document has to be taken as creating a wakf and the properties would come within the purview of the Wakfs Act 1954, As pointed out by Venkataraman J. in a case like this, it would be necessary for the Wakf Board to frame a scheme providing for ,the allocation among the different objects in the manner contemplated by the wakf.
8. In the present case, I am only concerned with the question as to whether the Wakf Board is entitled to recover possession of the property. The alienation has been made by a person who was not entitled to alienate the property. It is not clear how the vendor, a lady could even be a Manager, as contemplated by the wakif under Ex. A. 2. If the vendor was a person who could be a Manager, then he is bound the ban on alienation stipulated in the document. If he or she was a stranger then also he or she could not have alienated the property, The result is that the alienation is not binding on any one. The alienation would be invalid and illegal and would not pass any title,
9. The Muthavallis or the Managers have allowed the property to remain in the hands of the purchaser since 1963 when the alienation was effected. It was, therefore proper for the Wakf Board, as the custodian or Superintendent of the charity, to sue for recovery of the property. Therefore there is nothing incompetent in the suit as filed by the Wakf Board.
10. The result is that the Wakf Board would be entitled to recover possession of the property from the alienee under Ex. B. 3. There will be a declaration in favour of the plaintiff appellant as prayed for and the prayer for possession will also have to be granted.
The second appeal is allowed. There will be no order as to costs.
11. Appeal allowed.