Full Judgment Text
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CASE NO.:
Appeal (civil) 11988 of 1995
PETITIONER:
THE U.P. SUNNI CENTRAL BOARD OF WAKFS
Vs.
RESPONDENT:
MAZHAR HASAN & ORS.
DATE OF JUDGMENT: 09/08/2001
BENCH:
D.P.Mohapatro, S.R.Babu
JUDGMENT:
J U D G M E N T
RAJENDRA BABU, J. :
On the registration of certain properties as wakf a reference was
made by the respondents under Section 29(8) and Section 33 of the Uttar
Pradesh Muslim Wakfs Act, 1960 [hereinafter referred to as ’the Act’] for
cancellation of registration. The property in question is stated to be a
Muslim Musafirkhana situate in Kazipura, City Bahraich, consisting of
24 rooms, one court-yard, varendah, open land, passage, four shops,
office room and some portion under construction indicated in the plaint
and there exists within that accommodation a Mosque but that had not
been included in the plaint. The case put forth by the respondents is
that the property in question was owned by a Society of which the
respondents have been office bearers; that they have been in possession
of the suit property; that they purchased the said land, on which the
accommodation exists, on October 18, 1966 for a sum of Rs. 6,100/-
from two ladies and thereafter got the Musafirkhana constructed on that
land; that the provisions of Sections 29 to 33 of the Act did not apply
and so the registration of property in dispute as wakf had been illegal,
null and void. The reference was resisted by the appellant on the
grounds that the land in question was purchased from the subscription
given by Musalman public and building was also constructed out of such
donations given by the general public; that the purpose of the collections
of this fund or donation made by Musalmans in general was charitable
one, namely, the construction of Muslim Musafirkhana; that in order to
relieve them from the shortage of accommodation and for religious
purposes a Mosque was also constructed within the Musafirkhana; that,
therefore, the registration was in accordance with law.
The Tribunal held that the Mosque is part and parcel of
Musafirkhana and has got a religious purpose and the Musafirkhana is
meant for charitable purposes and is also of a religious character by the
reason of the existence of a Mosque as a part and parcel of
Musafirkhana. However, on the basis that the property alleged to be
wakf property should be proved to have been dedicated permanently by
one professing Musalman faith and the purposes of dedication must be
proved to be religious, pious and charitable, it is only in such a case
wakf may be said to have come into existence and in the absence of proof
of dedication by a dedicator having Muslim faith the property in dispute
could not be said to be wakf property and cannot be deemed to be wakf
property, the Tribunal allowed the reference and set aside the
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registration. The matter was carried by way of revision petition to the
High Court which affirmed the view taken by the Tribunal and dismissed
the revision petition. Hence this appeal by special leave.
The High Court recorded the following finding :-
"In the present case, creation of or construction of a Musafirkhana
for the Muslim public can be said to be benevolent, pious and
charitable object beyond any doubt as has been found by the
court below. It may even be religious one, i.e., the purpose for
which the subscriptions were demanded from people. The object
of or purpose of subscription, i.e., the construction of
Musafirkhana, no doubt, is pious, charitable and religious but the
other ingredients, as I have mentioned earlier, are that there
should be voluntary dedication and dedication should be one
made by persons professing Musalman faith. In the present case,
the evidence on record as found by the court below as well
indicates that a meeting was called for and money came from
subscription from the people of Bahraich after the appeals had
been issued demanding the subscription. Ext. A12 - on record is
the appeal which had been issued demanding donations and in
pursuance thereof money came from the public of Bahraich as per
deposition of P.W. 1 Nizamuddin and other witnesses those who
offered subscription or donations. There is no evidence that they
made donations with the intent to derive spiritual benefit."
The High Court is of the view that the dedication carries with it an
idea of voluntary self donation without any demand or appeal for the
same and that subscription or donation made on appeal being made by
people at large cannot be taken to be the donation of property of
permanent character which is the essential ingredient of the definition of
’wakf’ under the Act. If a property is set apart for a definite purpose,
such property would become ’dedicated’ for a purpose. It cannot be said
that it is only in cases when an individual divests himself of the property
and after declaration of trust it is binding on the settlor with the object
for which the property thereafter to be held. If out of the moneies given
by the general public a property is purchased for a public purpose which
is religious or charitable in character, we do not think, such property will
lose the character of a ’wakf’ as defined under the Act. The finding
reached by the High Court, by affirming the view taken by the Tribunal,
itself indicates that the object for which the property in question has
been set apart or dedicated is charitable, pious or religious in nature
and, therefore, the dedication was complete and it could not be divested
for any other purpose. Therefore, when the property can be used only for
religious or charitable purposes it acquires a permanent character. In
that view of the matter, we do not think, the High Court is justified in
holding that the cancellation of registration by the Tribunal is in order.
The order of the High Court affirming the order of the Tribunal is set
aside and the reference made by the respondents shall stand dismissed.
The appeal is allowed accordingly. No costs.
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