1. The substantial question of law for my consideration in this Second Appeal is whether a service inam is a wakf within the meaning of the Wakf Act, 1954.
2. It arises this way. The plaint schedule property consists of Acs. 2.87 cents of dry land and 49 cents of wet land situated in Kalavagunta village in Chittoor District. The land was purchased by the plaintiff (P.W 1) under the registered sale deed (Ex. A-1) dated 16-2-1968 from one Ghouse Khan and his son Khader Nawab Khan for Rs. 5,000/- This land forms part of a larger extent of Acs. 6.28 cents of land comprised in T.P No. 824 which was notified as wakf property under the Wakf Act, 1954 by means of the notification (Ex. A-2) dated 28-6-1962 in the Andhra Pradesh Gazette. The plaintiff who had purchased the suit property after the issue of the notification contends that the suit property is not wakf property but forms part of the personal inam granted to the ancestors of his vendors and in any event he had acquired title to the suit property by adverse possession. Hence he filed O.S 198/1968 for a declaration that the aforesaid notification Ex. A-2 was illegal and void. On the other hand it was contended by the Wakf Board that the suit property was endowed for the purpose of celebrating Moharram festival and for maintaining a resting place for Fakirs and therefore it is Wakf property and it was property notified under Ex. A-2 and that Ghouse Khan who was one of the vendors under Ex. A-1 had neither authority nor power to alienate the wakf property since he had been recognised as Mutavalli of the said Wakf. Therefore it is contended that the sale deed Ex. A-1 does not bind the Wakf Board and the plaintiff is not entitled for any relief.
3. The learned District Munsif held that the suit property was Wakf property and the Gazette notification (Ex. A-2) was valid. Therefore he dismissed the suit. In the appeal filed by the plaintiff the District Judge, Chittoor also held that the suit property was Wakf property and the Gazette notification was valid.
4. In this appeal filed by the plaintiff, Sri Snbrahmanaya Reddy, the learned Counsel for the appellant, did not question the finding of the learned Judge that the inam was confirmed as a service inam. What he submits is that it is not a Wakf and therefore it is outside the purview of the Wakf Act, 1954. According to him if service is not performed it reverts to the grantor and it does not vest in the Almighty and therefore it is not a wakf.
5. Ex. A-5 is the certified extract from the Inam Fair Register relating to the suit property. The classification of the inam is given as ‘Khairati’. The grant was to be in force as long as the ceremony was performed. The inam seems to have been granted for the support of port of the Makkan where Peerlu festival was performed once a year and where travelling Fakirs were allowed to halt. Though the Deput Collector recommended that the grant might be confirmed as persona the Inam Commission actually confirmed the inam as service tenure as the Service was being performed and issued little deed No. 248. This fact is evident from the entries in column 22. Thus it was confirmed as a service inam. Ex. B-2 is the permanent inam B register. It shows that the land comprised in title deed was Devadayam. Thus these documents show that the inam was granted to one of the ancestors of the vendors under Ex. A-1 by some unknown persons that the income thereof might be utilised for maintaining Makkan where tazias are installed in the month of Moharram and also for providing shelter for travelling Fakirs, In Mulla's Mahommadan Law (17th Edition-1972) at page 173 and page 174 the valid objects of a wakf are enumerated. Keeping tazias in the Month of Moharram, and payment of money to Fakirs i.e, the poor, are valid objects for which a wakf could be created. Therefore in this case the suit land constitutes wakf property.
6. Section 3(1) of the Wakf Act, 1954 defines the ‘Wakf’ 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—
(i) 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 al al-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable;
and ‘wakif means any person making such dedication.”
7. In order to constitute a wakf there should be (i) a permanent dedication by a person professing Islam; (ii) it may be of movable or immovable property; and (iii) it should be for a purpose recognised by the Muslim law as pious, religious or charitable.
8. Applying the definition to the facts of this case, immovable property is dedicated for a religious and charitable purpose. The name of the original grantor is not known. But there is no evidence to show that the grant was by a non-Muslim. D.W 6, Khasim Khan had deposed that the suit property was inam property granted for performing the festival of Peerlu and his father was performing the festival and that after his death Ghouse Khan and himself have been performing the Peerlu festival. He had further stated that the suit property was owned by their ancestors and it was given by one Arcot Nawab to his ancestors to perform Peerlu festival.
9. Section 3(a) of the Wakf Act, 1954 defines ‘beneficiary’ as meaning a person or object for whose benefit a wakf is created and includes religious, poius and charitable objects and any other objects of public utility sanctioned by the Muslim Law. Section 3(b) of the Wakf Act, 1954 says that ‘benefit’ does not include any benefit which a mutawalli is entitle to claim solely by reason of his being such mutawalli.
10. Therefore ‘beneficiary’ can be a person or an object for whose benefit the wakf is created and it can include religious, pious and charitable objects and any other objects of public utility sanctioned by the Muslim Law. Celebration of Moharram festival and providing food and resting place for in inherent Fakirs are religious and charitable objects and those objects are ‘beneficiaries’ for whose benefit the wakf was created. Therefore I hold that the property in question satisfied the requirements of a wakf as defined by the Wakf Act, 1954 and it is wakf property.
11. In Jain Yar Jung v. Director of Endowments (1) AIR (1963) S.C 985, the Supreme Court observed in paragraph 12:
“Similarly, the Muslim Law relating to trusts differs fundamentally from the English Law. According to Mr. Ameer Ali. “The Mohammadan Law owes its origin to a rule laid down by the Prophet of Islam; and means ‘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. The manager of the wakf is the muttawalli, the governor, superintendent or curator. But in that capacity, he has no right in the property belonging to the wakf; the property is not vested in him and he is not a trustee in the legal sense”.
Therefore, there is no doubt that the wakf to which the Act applies, is, in essential features, different from the trust as known to English law.”
12. Relying on these observations it is submitted by Sri Subrahmanya Reddy, that since in this case the property does not vest in the Almighty but it vests in the person who is to render service it is not a wakf. I am not able to agree with him. It is true that the land was granted to an individual to perform service. But it does not mean that the acquires title to that property. Similarly, if the land can be resumed for non-performance of service and can be regranted to another person for rendering service, it does not mean that the original grantor continues to be the owner of the property. When once the wakf was created it continues to be a wakf. When the inam is resumed and regranted it does not mean that there is revocation of the service. It only means that the wakf property is entrusted to another individual to perform the service.
13. In the view I have taken it is unnecessary to refer to section 66(c) of the Wakf Act 1954 and the decision cited with reference to that section by Sri Subrabmanya Reddy. Consequently I hold that the suit property is wakf property and the notification Ex. A-2 made by the Wakf Board is valid. Sri Subrahmanya Reddy submitted that the inam in question stood abolished in view of the Inam Abolition Act and in that view also it cannot be considered to be a wakf. But that question was not raised before both the lower courts and therefore, I do not permit him to raise it at this stage in this second appeal.
14. Consequently I see no grounds to interfere with the judgments of the lower courts and I dismiss the second appeal with costs.