1. An interesting question of law as to whether a non Muslim can create a wakf Act 1954, arises in this appeal filed by the plaintiff, the Tamil Nadu Wakf Board, in O.S. 39 of 1975 on the file of the Sub Court, Thanjavur.
2. The appellant filed the said suit, for recovery of vacant possession of the suit property, claiming it to be a wakf property. Its case as set out in the plaint was as follows-
The suit property belongs to Hazarath Sham Mansoor Avulia Dargah at Thanjavur, and it is one of the several properties endowed for the maintenance and support of the said argah. The said argah is a notify wakf. In O. P. 41 of 1971, the Dargah has been declared as a wakf by the Sub Court, Thanjavur. The suit property is close to the Dargah and had been used hitherto as burial ground and for purposes connected with the Urs festivals of the Dargah and therefore, it has also become a wakf by user from time immemorial. The suit property has been leased out to the second defendant, by the first defendant, who is the Secretary of the Board of Trustees of the said Dargah, for a period of 25 years for erecting a permanent cinema theatre, by an agreement dated 7-5-1971, without obtaining the sanction from the plaintiff, as required under Section 36-A of the Wakf Act. The said lease, without such sanction, is invalid, as it is for non-agricultural purpose for a period exceeding one year. Hence the said lease is void and the second defendant's possession of the suit property is illegal and wrongful. The said lease also will not bind the Wakf Board. The plaintiff is therefore entitled to recover vacant possession of the land ignoring the lease deed in favour of the second defendant, treating him as a trespasser.
3. The suit was resisted by both the defendants. The first defendant who is the Secretary of the Board of Trustees of the said Dargah contended that the suit land is not being used as a burial ground. The suit property is not a wakf. It is a charitable endowment granted by a Hindu King by name Sevappa Naicker for the purpose of Fakirs resorting to the Dargah and therefore, it will not come under the definition of the 'Wakf'. The administration of the Dargah is governed by a scheme framed by the civil court in O. S. 11 of 1941, on the file of the Sub Court, Thanjavur. In O. P. 41 of 1971, the Wakf Board sought direction from the court to the trustees to register the trust as a wakf, submit annual reports, pay contributions and get permission of the Wakf Board before constructing any building in T. S. No. 2980 belonging to the Trust. However, this petition was dismissed on 7-7-1971, on the objections of the Board of Trustees. The lease in favour of the second defendant, which has been impugned by the plaintiff, has been given after obtaining the sanction of the Court in I.A. 288 of 1971, wherein the terms and conditions of the lease were also approved by the court. On the strength of the said lease, the second defendant has constructed a theatre at a huge cost of Rs. 3 lakhs. The trust is getting a monthly assured income from the property dismissed. The lease is not only valid, but also beneficial to the trust. The existence of the theatre is not a hindrance to any of the religious functions performed in the Dargah. In any event, the property leased out in favour of the second respondent is a small piece of land in the eastern extremity, out of the entire area of 6-1/3 acres, belonging to the trust.
4. The second defendant, though filed a separate written statement , has practically adopted the same averments as found in the written statement, of the first defendant. He has added that he had invested a large amount in the construction of the cinema theatre relying on the orders of the Court sanctioning the lease and to the knowledge of the plaintiff is stopped from challenging the lease in his favour.
5. On these pleadings, the two substantial questions that arose for consideration by the lower court were-
1. Whether the lease deed dated 7-3-1971 granted by the first defendant in favour of the second defendant is invalid and not binding on the plaintiff as alleged in the plaint?
2. Whether the sanction obtained by the first defendant from the Sub Court, Thanjavur in I. A. 288 of 1971 in O. S. 11 of 1941, on the file of the same court, will validate the said lease?
On these questions, the court below held that the suit property is not a wakf property and therefore, no sanction under S. 36-A of the Wakf Act 1954 is necessary for leasing out the property and that the sanction obtained from the Civil Court, in pursuance of the scheme, for leasing out the property to the second defendant is sufficient to sustain the validity of the lease deed in question. In this view, the court below dismissed the plaintiff's suit.
6. In this appeal, the appellant, Wakf Board, challenges the findings of the Court below that the suit property is not a wakf property and that therefore, no sanction under S 36-A of the Wakf Act for leasing out the suit property in favour of the second defendant is necessary. It is also contended on behalf of the appellant that notwithstanding the scheme decree in O. S. 11 of 1941, relating to the administration of the Dargah in question, as also the sanction granted by the Civil Court for granting the lease in favour of the second defendant, since the scheme is to be read subject to the provisions of the Wakf Act, a sanction under S. 36-A of the Wakf Act is a must.
7. The learned counsel for the Board of trustees the first respondent herein, contends that the suit property is not a wakf property, as it has been donated by a person professing Hindu faith, which stands excluded from the definition of 'wakf' in Section 3 (1) of the Wakf Act, that even if the property is held to be a wakf property, still the administration of the same, has to be in accordance with the terms of the scheme decree, and that in this case, the sanction has obtained for leasing out the property from the civil court in persuance of the terms of the scheme decree. The lease in any event cannot be taken to be invalid. It is also pointed out by the learned counsel that the schemes framed before the enactment of Wakf Act, 1954, cannot be taken to have been superseded by the provisions of the Wakf Act and that the Wakf Board, even if the suit property is taken to be a wakf property, is bound by the terms of the scheme and it cannot overlook or supersede any of the terms of the scheme decree framed by the Court.
8. In the face of the relative contentions of the parties, two questions that arise for consideration are-
1. Whether the suit property is a wakf property as defined in the Wakf Act, so as to attract the provisions of the Wakf Act?
2. If it is a wakf property, whether the sanction obtained from the civil court as per the scheme decree for leasing out the property in favour of the second defendant is sufficient, or, whether an application under Section 36-A of the Wakf Act is necessary to sustain the validity of the lease deed?
9. In this case, the relevant facts are not in controversy. The suit property is part of T.S. No. 2953, which has been granted in favour of the Fakkirs visiting the Mosque by certain five persons on the direction of a Hindu King called Sevappa Naicker, a Ruler of Thanjavur Kingdom between 1532 and 1580 A. D. as a representative of the Emperor of Vijayanagar. The property so dedicated had been acquired by the Railways and for other Government purposes and the balance lift is an extent of 6-1/3 acres. The eastern extremity of the said land measuring 84.375 sq. ft. has been given on a long lease for 25 years, by the first respondent in favour of the second respondent, after obtaining the sanction of the civil court in pursuance of the scheme decree. In relation to the Durgah, a scheme has been framed by the civil court in O.S. 11 of 1941, on the file of the Sub Court, Thanjavur and the Durgah is being administered by a Board of Trustees of which the first respondent herein is the Secretary, under the terms of the scheme decree. Since the scheme decree provided for leasing out the properties in management of the Board of Trustees after obtaining the sanction of the court, the Board of trustees sought for and obtained sanction to lease out the suit property in favour of the second respondent for erecting a cinema theatre in I.A. 288 of 1971 in O.S. 11 of 1941. On the basis of the said sanction granted by the civil court, the first respondent has leased out the suit property to the second respondent by a document Ex. A 2 dated 7-5-1971. On the faith of the said lease, the second respondent suit for recovery of vacant possession of the suit property from defendants 1 and 2, on the ground that the lease granted in favour of the second respondent was void, invalid and inoperative, as no sanction has been obtained from the Wakf Board, under Sec. 36-A of the Act and that the use of the suit property for anon-agricultural purpose, such as, erecting a theatre, interferences with the other normal functions in the Dargah. On these facts which are not in dispute, the legal question as to whether the suit property is a wakf property and whether the sanction under Sec. 36-A of the Wakf Board, is necessary to sustain the validity of the lease, has to be considered.
10. A wakf property has been defined in Sec. 3 (1) of the Wakf Act 1954, as follows-
"1. "Wakf" means the permanent dedication by a person professing Islam, of any movable or immovable property for any purposes recognised by the Muslim law as pious, religious or charitable and includes -- (i) a wakf by user; (ii) grants (including mashrut-ul-khid-mat for any purpose recognised by the Muslim Law as pious, religious or charitable".
11. As per the above definition, it is only a 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, that will constitute a wakf. However, according to the learned counsel for the appellant, any grant made by any Ruler for any purpose recognised by Muslim Law, as pious religious or charitable, will come under the definition of `wakf', though such ruler may be a person not professing Islam; if the property has been used for any pious, religious or charitable purposes, it can be taken to be a wakf by user. Therefore, (where?) a property granted by a Hindu ruler, has been shown to have been used for pious, religious or charitable purposes, it should be taken to be a wakf Act. However, we are not inclined to agree with the submission of the learned counsel that even dedications made by a non-Muslim, for purposes recognised by the Muslim law, as pious, religious or charitable, will come under the definition of S. 3 (1) of the Wakf Act (hereinafter referred to as `the Act'), having regard to the fact that S. 66-C of the Act refers to donations or dedications made by a non-Muslim of movable or immovable property for certain stated purposes, as a `deemed wakf'. The fact that S. 66-C of the Act deals with certain donations made by non-Muslims as a `deemed wakf' will clearly indicate that the dedication made by a non-Muslim will not come within the definition of `wakf' occurring in Section, 3 (1) of the Act. We are also not inclined to agree with the learned counsel for the appellant that the inclusive clause will whittle down or reduce the effect of the main clause, which specifically states that a dedication by a person professing Islam alone will be treated under S. 66-C of the Act, donations or dedications made by non-Muslims for certain objects, as deemed wakf and this will clearly indicate that dedication by non-Muslims will stand excluded from the definition of S. 3 (1) of the Act.
12. The same view has been taken by a Division Bench of this Court in Madras State Wakf Board v. Khazi Mohideen Sheriff, . In that case, a similar question as to whether there can be a creation of a wakf by a non-Muslim arose. The court, after referring to S.3 (1) of the Act, expressed the view that the main part of the definition in S.3(1) wakes it clear that the dedication should be by a Muslim and then only the property donated could be a wakf. In order to make a dedication a wakf, it should be (1) by a Muslim and (2) for any of the purposes recognised by the Muslim law, as pious, religious or charitable, that the items mentioned in Cls.(i) to (iii) in the latter part of the section, which gives the inclusive definition should also come within the general clause in the first part of the section, which refers to the purpose of the dedication and also to the dedication being made by a Muslim. The Bench was also of the view that the very introduction of S.66-C of the Act by the amendment would go to show that unless a grant made by a non-Muslim comes under any of the clauses mentioned therein, it would not be a wakf and that, therefore, a dedication made by a non-Muslim, even if it is for the purpose contemplated under S.3(1) would not be a wakf, unless it falls under S.66-C when the dedication will be taken as a 'deemed wakf'. But for S.66-C of the Act. which applies the Act to certain grants made by non-Muslims, no dedication made by a non-Muslim would be part of the wakf property, and a plain reading of S 66-C indicates that it does not contemplate a non-Muslim creating a wakf himself, though under that section, he can donate property to an already existing wakf and that too, if the wakf is one coming under any of the three clauses mentioned therein.
13. The learned counsel for the appellant would however, refer to a Bench decision in Venkatasubbarayadu v Silar, AIR 1930 Mad 582, as supporting his stand, that even a non-Muslim can create a wakf. In that case, there was an endowment by a non-Muslim Jamindar publicly made and recognised by the Government. The question arose, whether the said endowment was valid. Wallage J. has expressed his view in the following words:-
"It is not uncommon for person of Zamindars, Mittadars, etc., in whose estates that are Mohammedan as well as Hindu inhabitants, to make endowments of property for Mahomedan institutions and such endowments, so far as I know, have always been accepted by the done as valid. The present endowment was publicly made by the Zamindar and publicly recognised by Government in the inam proceedings and I should hesitate to declare it invalid merely on a presumption that there could be no exception of any kind to the rule of Mahomedam law that no wakf can be endowed by a non-Mohammedan". The question that came for consideration in that case, was whether the endowment was valid or not. The question whether such an endowment, though valid, is a wakf, as recognised by the Mahomedan law, did not arise for consideration, and therefore, the said decision cannot be taken as an authority for the proposition that a non-Muslim also can create a wakf. Even assuming that the said decision is relevant on the question, it is significant to note that the said decision does not refer to the definition of wakf, as defined in S. 2 (1) of the Mussalman Wakf Validation Act, 1913 (Act VI of 1913), which refers to a dedication by a person professing Mussalman faith, for any of the religious pious or charitable purposes, recognised by the Muslim Law as constituting a wakf.
14. The learned counsel for the appellant then refers to S. 474 of Tyabji's Muslim Law, which deals with wakf. In the foot-note, the author has noted as follows--
"The requirement of a valid wakf is a substantial dedication of the usufruct of the property to charitable, religious or good purposes as understood in the Muhammadan law, no particular from is necessary; a wakf may be construed from Royal grants of properties made in favour of individual persons as long as it was for a perpetual religious, charitable or good purposes.....".Reference was also made to sub-sec.(7) of S.475 of the same book, as indicating that the Royal or Government grants should come under the definition of wakfs in S.3(1) (ii). The passage relied on is as follows-
"In Government grants notwithstanding the use of the words like Inam or Altamaha and the mention of individual petitioners as grantees, if the grants are clearly for maintaining a charitable institution the wakf will be established." He also cited the reference to sub-sec. (1) (b) of S.475 as indicating that wherever the land is endowed to poor, it is a wakf.
15. We do not see how the passages in Tyabji's Muslim law referred to above, will show that a non-Muslim can create a wakf. In the passages referred above, the author has mainly emphasised the purpose for which a dedication can be made and whether it will satisfy the pious, religious or charitable purposes, contemplated by the Muslim law for the creation of a wakf. The passages do not refer to the religion of the donar. When the definition section specifically refers to a dedication made by a Muslim alone as coming under the definition of wakf, we do not see how any one could say that a wakf can be created by a non-Muslim. We are not inclined to agree with the learned council for the appellant that the word 'grant' occurring in S.3 (1) (ii) of the Act, should refer to the grants made by a Ruler or Government and as such they should automatically come under the definition of wakf. As already pointed out, the inclusive definition referring to the three categories, will have to also satisfy the two requirements set out in the main clause of S.3 (1).i.e.,(1) that the dedication should be by a Muslim, and (2) that the object for which the dedication has been made, should be for purposes recognised by Muslim law, as pious, religious, or charitable. If really all the grants made by non-Muslims could be taken as coming under S.3 (1) (ii), then there is no necessity for a separate provision to deal with the grants or dedications made by non-Muslims under S. 66-C of the Act. Then the further question is, whether the grant in this case under Ex.B-2, can be taken to be a deemed wakf under S.66-C.
16. Sec. 66-c of the Act has come up for consideration before this curtain two earlier occasions. In Peeran Sahib v. Madras State WAKF Board, (1967) 80 Mad LW 67 a Division Bench of this Court held that section contemplates the existence of a wakf and that gift being made to such existing wakf and that under that section the limitation provided for in S. 3 (1) of the Act that the creator of a wakf should be a person professing Islam is removed only to a restricted extent under Sec. 66-C of the Act. According to the learned Judges in that case, while anon-Muslim cannot create a wakf himself under S. 3(1) of the Act, a grant in support of an existing wakf can be made by a non-Muslim in cases coming under Sec. 66-C of the Act. They have further observed that when the definition of Sec. 3 (1) and S. 66-C of the Act are read together, it is clear that for founding a wakf under the provisions of the Act, in the first instance, i.e., for the original foundation, the creator must be a person professing Islam and that statue has certainly for understandable reasons, excluded the original foundation by non-Muslims from the operation of the Act.
17. In Madras State Wakf Board v Khazi Mohideen Sheriff which has already been referred to the scope of S.
66-C has been dealt with. The court has observed therein as follows (at p 228):
"A plain meaning of S. 66-C indicates that it does not contemplate a non-Muslim creating a wakf himself. He can donate property to an already existing wakf and that too if the wakf is one coming under any of the three clauses mentioned in that section. As we have already said, the grant in this case is for Kazi service. Kazi service which would be a mushrut-ul-khidmat is not one of the wakfs mentioned in any one of the three clause in S. 66-C".
18. As regards the scope of S.66-C, we are in entire agreement with the view expressed in the above two decisions. In this case, the definition, as already pointed out, has been made to the Fakkirs visiting the Mosque directly. Therefore, the grant under Ex. B-2 in this case, will not attract S.66-C; as the grant is not for the support of the objects or the institutions referred to in sub-cls. (a).(b) or (c) of the said section.
` 19. Thus, the suit property, which has been granted to Fakkirs visiting the Mosque in question, cannot be taken to be a wakf as defined in S.3(i) nor can it be taken to be a 'deemed wakf' as defined in S.66-C of the Act. If that is the true legal position, then the provisions of the Wakf Act including S.36-A will not apply to the suit property. Therefore, no sanction under S.36-A for leasing out the property either for agricultural or non-agricultural purposes, is necessary, as already pointed out, the Dargah, Mosque as well as the suit property, are being framed by the Civil Court in O. S. 11 of 1941, on the file of the Sub Court, Thanjavur. As per the terms of the said scheme, the first defendant has obtained the sanction of the civil court for leasing out the suit property and in pursuance of the said sanction, the suit property has been leased out to the second respondent. It is the contention of the learned counsel for the respondents that even if the suit property is taken to be a wakf property, the Wakf Board cannot ignore or overlook the scheme decree and that a scheme decree does not stand superseded by the provisions of the Act. As we have held, after due consideration, that the suit property does not constitute a wakf under S. 3 (1) or a deemed wakf under S. 66-C the question as to whether the Wakf Board can go behind the scheme, does not arise. Even if a finding is necessary on that aspect, we would not hold that as there is no specific provision in the Wakf Act, putting an end to the schemes already framed by the civil court or nullifying the same, the scheme decree passed by the civil courts in relation to certain wakfs should be taken to continue to be in force, unless the wakf succeeds in cancelling the scheme decree by approaching the civil court. The general power of the superintendance of the Wakf Board over all wakfs under S. 15 of the Wakf Act will not enable the Wakf Board to interfere with the schemes framed by the civil courts. The same view has been taken by Ismail. J as he then was in Palani Muslim Dharmaparipalana Sangam v. Tamil Nadu Wakf Board, (1975) 1 Mad LJ 201. In that case, the relevant observations of the learned Judge are as follows:-
"I am unable to agree that this power of general superintendence will extend to nullify or ignore or supersede a scheme for the administration of a wakf settled by a decree of court. So long as a decree of the court is in existence, and so long as it has not been modified or set aside or reversed by any procedure known to the law, the Wakf Board had no jurisdiction whatever to sweep it away or to ignore it and to act contrary to the terms of the scheme in the purported exercise of its power of general superintendence under Sec. 15 of the Wakf Act.
20. For the foregoing reasons, we are to uphold the findings of the court below in this case.
21. The appeal therefore fails and is dismissed with costs of the first respondent.
22. Appeal dismissed.