G.S.T. Shaik Mohideen Sahib vs The State Wakf Board and Another

M. Natesan, J.—This second appeal has been preferred by the second plaintiff in a suit for declaration that the plaint Darga, known as the

Hazarath Gnaniar Sheikh Mohideen Maluk Mudaliar Sahib Oliyullah Darga of Kottar, Vadiweeswaram Village, Agastheswaram taluk,

Kanyakumari district, was a private family Darga, and should not have been included in the list of wakfs in the Madras State, u/s 5 of the Muslim

Wakfs Act, 1954. The first plaintiff in the suit claims to be Sajjadhanishin of the Darga and the second plaintiff is the Secretary of the Darga. The

Madras State Wakf Board is the party defendant in the suit. The learned Subordinate Judge, who tried the suit, accepted the plaintiff''s case that

the dedication of the Darga and its properties is for the upkeep of the tomb of a private person and that, in the circumstances, there cannot be a

valid wakf under the Mohammedan Law. It was observed that the Darga is a family Darga, and that the dedication, even assuming that it had been

made out, was only for the annual commemoration of the date of demise of a private person, and that however holy that person might have been

considered by the members of his family and his disciples, he could not be deemed to be a saint. Reciting Koran near the tomb in the Darga or

performing fatehas, according to the learned Subordinate Judge, will not constitute a religious, pious or charitable act for a wakf under the

Mohammedan Law. The learned Subordinate Judge followed the decision of this Court in Kaleloola Sahib v. Naseerudeen Sahib ILR (1894)

Mad. 201 : 5 M.L.J. 40, as still good law.

On appeal the learned District Judge of Kanyakumari held that the plaint Darga is a place where the saint Sheik Mohideen Maluk Mudaliar

Oliyullah Sahib had been burried, that he was a learned person, who had a number of disciples both in and out of Nagercoil who had endowed

properties for the maintenance of the Darga and for charities to be performed therein, and that the plaintiff''s predecessors-in-title had not, in earlier

proceedings disputed that Sheik Mohideen Maluk was a saint. On the findings he concluded that the Darga was validly included in the list of

wakfs.

In this Court, again the attempt was to invalidate the wakf by a reference to Kaleloola Sahib v. Naseemdeen Sahib I.L.R.(1894) Mad. 201 : 5

M.L.J. 40. It was further contended that it had been conclusively established in an earlier litigation that the Darga was a private family Darga of the

plaintiffs and that there was no such dedication for religious pious or charitable purposes, as would make the institution a wakf for being listed

under the Muslim Wakfs Act of 1954. It suited the plaintiffs to question the finding of the appellate Court that their remote ancestor was a saint,

who had been acknowledged as such by the Muslim community, and it was argued that the dedication was for the purposes of conducting of

fateha and Urs an annual festival in commemoration of death, and, therefore, an invalid wakf.

I may at once say that there appears to be considerable confusion as to the scope of the Muslim Wakfs Act of 1954, as will presently appear in

the course of the discussion. The Muslim Wakfs Act (XXIX of 1954), is made applicable to all wakfs, whether created before or after the

commencement of the Act. Wakf is defined in Section 3 (1) : 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 (1) a Wakf by user ; (ii) grants

(including mashrut-ul-khidmat) for any purpose recognised by the Muslim Law as pious, religious or charitable; 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. I fail to see anything in the

Act limiting the listing of wakfs to wholly public wakfs. While a public wakf is one for public, religious, or charitable objects, a private wakf is one

for the benefit of the settlors'' family and his descendants and is called a Wakf-alal-Aulad. At one time it was considered that to constitute a valid

wakf there must be a dedication of property solely to the worship of God or to religious or charitable purposes, i.e., in no case could private wakf

be Valid. After the Wakf Act of 1913, this view is no longer tenable, and, while a wakf exclusively for the benefit of the settlor''s family, children

and descendants in perpetuity will be invalid, after the Mussalman Wakf validating Act of 1913, it is made lawful for a person professing the

Muslim faith to create a wakf, which, in all other respects, is in accordance with the provisions of the Mohammedan Law, among other purposes

for the maintenance and support wholly or partially for his family, children or descendants, provided that the ultimate benefit in such cases expressly

or impliedly is reserved for the poor or for any other purpose recognised by the Muslim Law as a religious, pious or charitable purpose of a

permanent character. The Act permits even the postponing of the ultimate benefit till the extinction of the family of the person creating the wakf. But

there must be an ultimate gift for religious, pious or charitable purpose. But most often one finds a concurrent gift to religious, pious or charitable

purposes of a permanent character recognised by the Muslim Law. Act XXIX of 1954, specifically includes in the definition of wakf, a Wakf-alal-

Aulad to the extent to which the property is dedicated for any purpose recognised by the Muslim Law as religious pious or charitable, and, if in any

particular wakf there are private rights existing it may be a matter for allocation of the income after the enquiry. It may be necessary to find out the

extent of the dedication for pious, religious or charitable purposes for determining the wakf falling under the Act. Circumstances may necessitate

the framing of a scheme for the said purpose. But certainly these features cannot stand in the way of the wakf being listed. There can be no valid

Wakf under the Muslim Law if there is no dedication, concurrent or at least in the ultimate, for purposes recognised by the Muslim Law as pious,

religious or charitable.

The Darga in question is called the Gnaniar Palli. It is stated for the appellant that there is a private burial ground adjoining the Darga. The

history of the Darga and its character have to be culled, out only from the judgment relating to the Darga in Original Suit No. 44 of 1098 M. E. of

the District Court, Nagarcoi confirmed on appeal by the High Court at Travancore in Appeal Suit No. 152 of 1102 M.E., Exhibits A-1 and A-2 in

the case. The suit was instituted by some of"" the Villagers claiming that the suit property and mosque belonged to the villagers. Gnaniar Palli, the

Darga in question, is referred to as a mosque. It is seen from the records that even then it was not clear when the property, on which the Gnaniar

Palli stood, was acquired, or when and by whom the Palli in question was built. It appeared to have been in existence for over hundred years even

then. It was found by the trial Court in that case that the defendants claimed the mosque and its properties as belonging exclusively to their family

saint. The senior member of their family was treated as owning the mosque. Finding that the defendant''s family had been in exclusive possession of

the Palli and Us site, claiming special rights, the suit was dismissed. The case of the present plaintiffs in defence in that suit was that their family

members were known as Gnaniars, that their ancestor, Sheik Mohideen Maluk Mudaliar Gnaniar Oliyullah Sahib lived a saintly life, and according

to his direction his remains were interned in the plaint property by his brother and a Mosque built by Gnaniar Sheik Uthuman Sahib. Thereafter, it

is stated that the family was performing the Nercha. Evidence had been let in, in that suit, and accepted by the Court, that respectable disciples of

the chief of the defendants, family had endowed properties for the mosque and given valuable presents out of Veneration for their Guru.

In the list of wakfs published u/s 5 of the Act only the Darga is mentioned. Its properties are not found added even in a general way, leave alone

specification. As it is, the Darga proper only has been listed. The properties which have been gifted or granted for the Palli would also be wakf, but

they have not been listed or specified. True, in the enquiry that preceded the listing when assessing the income, several properties have been taken

into consideration. But, as it is, the list refers only to the Darga, and the plaintiffs pray for the deletion of the Darga from the list of wakfs. It has

become necessary to refer to this aspect of the matter, as it is impossible to state, on the record, the exact nature of the dedication as regards

properties other than the Darga and whether there is an out and out dedication of the various properties. In the written statement of the Wakf

Board it is stated that the Darga now owns about 10 1/2 acres of wet land, about 5 1/4 acres of dry land, and house properties and that these

properties are all permanent dedications made by Muslims of different places in favour of the Darga. Both the Courts below have not addressed

themselves to this aspect of the question, whether and what properties have been dedicated in favour of the Darga for pious, religious or charitable

purposes. In Section 27 of the Wakf Act of 1954, there is provision for decision on questions as to whether a property is wakf property. The

Board may itself collect information regarding any property which it has reason to believe to be wakf property, and if any question arises whether a

particular property, is wakf property, of not, or whether a wakf is a Sunni Wakf or a Shia Wakf, it shall refer the question to a civil Court of

competent jurisdiction. The only point that has been considered in this case in the Court below is whether the plaint Darga is a wakf as defined in

Section 3 (b) of the Muslim Wakfs Act. I am clarifying this position, in view of certain apprehensions expressed on behalf of the plaintiffs

particularly as it is their contention that the wakf with its properties is a private one. The learned District Judge has observed that in view of the

findings in the earlier suit relating to the same Darga, it must be held that the properties were endowed not only by the relations of the plaintiffs, but

also by the disciples of the Gnaniar residing in other districts for the benefit of the Darga and that he was unable to agree with the finding of the

Court of first instance that there has been no valid dedication of properties in favour of the Darga.

It now falls for consideration whether there can be a valid dedication for the Darga and whether the several practices which have been referred

to by the learned Subordinate Judge Fateha and Urs ceremonies invalidate the dedication. The principal contention of the plaintiffs has been that

the Darga cannot be considered to be a wakf, as it was a tomb of a private person, and that there could be no provision for reading of Koran at

the tomb. Now it is brought out in the evidence of P.W. 1 that no one is prevented from entering into the Darga and that no one takes permission,

though according to P.W. 1 they must take the plaintiff''s permission. Properties, houses and topes have been purchased for the Darga. A festival

is conducted every year in Jathil Aval. There is a Fateha house. Urs is conducted and Moulood is recited for 18 days. Muslim public participate in

Moulood and the singing of what are known as Gnaniar hymns. Disciples come to the Darga from Erwaday and Melapalayam in a considerable

number. They are given rice for their food during their stay, out of the Darga funds. The anniversary of the Gnaniar is celebrated on the 14th of

Jamathil Aval and the offerings are distributed to the public, about 1,000 in number. Ten to sixteen kottahs of rice are cooked. Hundial is taken in

procession, and any one may make offerings in money and put it into the hundi. It is stated that only family members and disciples are invited for

the purpose. When the income and the properties set apart are insufficient, personal funds are spent by the members of the family. Fateha On the

30th of Ramzan and on the 22nd day of Muharam is celebrated, and it is stated to be celebrated out of their own funds. The family of the plaintiff''s

it is stated, consists of about 400 members.

The learned Counsel for the appellant drew my attention to the decision of this Court in Kunhamutty v. Ahmad, Musaliar I.L.R.(1934) Mad.

204 : 68 M.L.J. 107, and referred again to Kaleloola Sahib v. Nuseerudeen Sahib I.L.R.(1894) Mad. 201 : 1894 5 M.L.J. 40. No doubt, in

Kunhamutty v. Ahmad Musaliar I.L.R.(1934) Mad. 204 : 68 M.L.J. 107, it has been held that the dedication of property, the income of which is

to be devoted merely for the purpose of reciting Koran over the tomb of a private person, does not create a valid wakf under the Mohamedan

Law. .But certainly it cannot be contended that the Gnaniar, whose mortal remains have been, intermed in the Darga, was an ordinary private

person. Even otherwise, it has been held that the performance of Fateha ceremonies is a valid object for a wakf. The ceremony of Fateha consists

in the recital of prayers for the welfare of the souls of deceased persons, accompanied by distribution of alms to the poor. Once it is admitted that

there is Fateha, ""ft must be taken that there is a valid wakf under the Mohamedan Law. The very decision in Kunhamutty v. Ahmad Musaliar 68

M.L.J. 107 : I.L.R.(1934) Mad. 204, relied upon by the appellant, points out that Kaleloola Sahib v. Nuseerudeen Sahib I.L.R.(1894) Mad. 201

: 5 M.L.J. 40 , is no longer good law, after the decision of the Judicial Committee in Mutu Ramanandan Chettiar v. Vava Levvai Marakayar . The

case, Kaleloola Sahib v. Nuseerudeen Sahib I.L.R.(1894) Mad. 201 : 5 M.L.J. 40, was before the Musalman Wakf Validating Act (VI of 1913).

In the institution now under consideration it is not a case of mere reading of Koran at the tomb; there is Fateha and feeding of the poor.

Learned Counsel for the appellant also, referred to Zooleka BiBi v . Syed Zynvl (1904) 6 Bom.L.R. 1058 , where it has been held that the

Mohamedan Law does not justify the tying up of property for the purpose of maintaining the tombs of ordinary individuals. The same decision

recognizes that property could be tied up with respect to shrines and tombs of great religious teachers which are regarded with Very considerable

feeling of reverence and sanctity by Various Muslim Communites throughout the world. It is pointed out in Syed Shah Abdul Latif Mohideen

Kadiri Sujjatha Shibahadulla Sahib Vs. M. Mohammad Lebbai (died) and Others, that for a Darga there must be tomb in which a saint is burried.

The plaintiffs themselves are referring to the institution in question as a Darga. In the Oxford Dictionary Volume III, Part III, Darga is defined as a

place of religious resort and prayer, and also as a shrine of a saint. To the same effect is the meaning given to Darga in the Tamil Lexion, Volume

III, Part I, at page 1760. The present tomb cannot in the circumstances; be said to be the tomb of a private individual. He was a person whose

descendants take the name of Gnaniar and command a large body of disciples. The tomb has been held in great veneration, and the learned

District Judge notices that even the plaintiffs did not seriously dispute that Sheik Mohideen Maluk. Mudaliair Gnaniar Sahib was really a saint. The

learned Subordinate Judge in this case has discountenanced the celebration of Urs at the death anniversary. a? not one in accordance with the

tenets of Islam. But in Sujjada Shah v. Shaw Habit 53 Ind.Cas. 677, Abdul Rahim, J. sitting with Seshagiri Aiyar, J., remarks:

I ought to mention that the performance of Urs and Fatehas has not been objected to in this case and Benson, J., and myself held in the above-

mentioned case in Ramanadhan Chettiar v. Veda Levvai Marakayar I.L.R.(1910) Mad. 12 : 20 M.L.J. 254, that such objects are valid according

to the Mohamedan Law as administered in India, if these rites involve the distribution of food to the poor.

The learned Judge refers to the fact that Ramanandan Chettiar v. Veda Levvai Marakayar I.L.R.(1910) Mad. 12 : 20 M.L.J. 254 , has been

confirmed by the Judicial Committee in Mutu Ramanandan Chettiar v. Vava Levvai Marakayar . .

No doubt Zooleka Bi Bi v. Syed Zynul (1904) 6 Bom.L.R. 1058, has discountenanced the valid dedication for Urs. anniversary ceremonies,

but I am bound by the decision of this Court above referred to, and I may, in this connection mention that Mirza J., in Mt. Azimunnissa Begum v.

Sirdar Alikkan AIR 1927 Bom. 387, points out that the question of sainthood must rest upon the beliefs of the people. The learned Judge remarks:

The Fateha ceremony on the anniversary of the death of a saint is called by the more dignified name of Urs as much larger section of the Musalman

public participate in the ceremony and the ceremony itself is on a larger scale. In matters of this kind Courts of law are not primarily concerned

with what may ""be the true tenets and practice of a religion as propounded by jits founder, but they have to take into consideration the tenets and

practice of the religion as understood and practiced by the people professing such religion in the country where the Courts are administering the

law. According to that practice and belief it would appear that in this country at least the anniversary Fateha. or Urs ceremonies at the tombs of

ordinary individuals and especially, of saints form an integral part of the religious life of the general body Mahomedans.

Reference may also be made to the decision in Abdul Sattar v. Abdul Hamid (1944) 2 M.L.J. 92 : ILR (1945) Mad. 276. Here again it has

been pointed out that the decision in Kaldoola Saheb v. Nuserudeen -Sahib I.L.R.(1894) Mad. 201 : 5 M.L.J. 40 , could no longer be

conscerned to be good law. Reference war. made to the decision of this Court and of the Judicial Committee in Mutu Ramanandan Chettiar v.

Vava Levvai Marakayar , where it has been pointed out that part of the Fateha ceremony involved the feeding of the poor, a valid object of wakf.

It is surprising that in spite of this line of decisions, the learned Subordinate Judge should have placed reliance on the decision in Kaleloola Sahib v.

Nuseradeen Sahib I.L.R.(1894) Mad. 201 : 5 M.L.J. 40.

Reference may also be made to Saiyad Maher Husein Vs. Haji Alimahomed Jalaludin, where it is noticed that the tomb of a recognised saint is

a proper subject of wakf. In that case a dedication was inferred from the user.

It follows that the decision of the learned District Judge, that the plaint-Darga was validly included in the list of wakf u/s 5 of the Muslim Wakfs

Act of 1954, is unimpeachable.

A question of jurisdiction has been raised, learned Counsel contending that the State Wakf Board constituted by the State of Madras, has no

jurisdiction over the wakf which was in the District of Kanyakumari, the Muslim Wakfs Act of 1954 is a Central Act, and by Section 1 (3) it is

provided that the Act shall come into force in a State to which the Act extends on such date as the Central Government may, by notification in the

Official Gazette, appoint in that behalf for that State. The Act came into force in the State of Madras, by virtue of a notification u/s 1 (3), on the

15th January, 1955. In the State of Travancore-Coachin it came into force on 1st February, 1955. The State Reorganisation Act, (XXXVII of

1956), was passed on 1st November, 1956, making the District of Kanyakumari part of the Madras State. The State Wakf Board u/s 9 of the

Act (XXIX of 1954) was constituted even in the State of Madras only in 1958. There was no Wakf .Board in the State of Travancore-Cochin

before 1st November, 1956, i.e., there was no State Wakf Board functioning in the District of Kanyakumari when it was transferred to the Sate of

Madras. In the circumstances the reliance by the learned Counsel for the appellant on Section 109 of Act XXXVII of 1936 cannot stand. Section

109 (1) runs thus:

Save as otherwise expressly provided by the foregoing provisions of this part, where any body corporate has been constituted under a Central

Act, State Act or Provincial Act for an existing State the whole or any part of which is by virtue of the provisions of Part II transferred to any other

existing State or to anew State, then, notwithstanding such transfer, the body corporate shall, as from the appointed day, continue to function and

operate in those areas in respect of which it was functioning and operating immediately before that day, subject to such directions as may from time

to time be issued by the Central Government, until other provision is made by law in respect of the said body corporate.

The State Wakf Board was not functioning the District of Kanyakumari before its transfer to the State of Madras and hence there can be no

question of want of jurisdiction in the Wakf Board of this State by reason of Section 109. The State of Madras and the District of Kanyakumari

were both governed on 1st November, 1956, by the Wakfs Act (Central). The Wakf Act of 1954, was in force not only in the existing State of

Madras, but also in the transferred territory of Kanyakumari District. It is under those circumstances that the State of Madras u/s 9 of the Wakfs

Act (Central), constituted the Wakf Board in the State for the entire State. I fail to see how the Board can be denied jurisdiction over the District

of Kanyakumari. The question, it may be stated, is covered by the decision of my learned brother Srinivasan, J., in State Wakf Board v. Hussain

and Ors. S.A. No. 185 to 187 of 1963. This point, therefore, fails.

On behalf of the State Wakf Board a contention was raised that the suit itself was barred by limitation. There are no merits in this contention.

The notification u/s 5 (2) was published on 3rd November, 1958. The statutory notice u/s 56 of the Wakfs Act was sent on 26th November,

1959. A suit u/s 56 could be instituted only after the expiration of two months next after notice in writing has been delivered to, or left at, the Office

of the Board. The suit in this case was actually filed on 3rd February, 1960, on a Monday. The previous day was a holiday, being a Sunday.

Naturally, in the circumstances the question of limitation was not argued in the Court of first instance. However, it has been raised in the appeal,

and here again in the Second Appeal. The ground of limitation is untenable.

In the result, the Second Appeal fails and it is dismissed. In view of the untenable defence of limitation taken for the respondent there Will be

no order-as to costs in the Second Appeal. No leave.