INDIAN INSTITUTE OF ISLAMIC Vs. DELHI WAKF BOARD

JUDGEMENT

(1.) This common judgment will dispose of four suits; the first by the Hamdard Dawakhana Wakf, (hereafter "the Dawakhana Wakf" -Suit No. 117/72)and the others by Institute of Islamic Studies (later Jamia Hamdard -Suit No. 116/72); Institute of History of Medicine and Medical Research (later Jamia Hamdard -Suit No. 118/72) and Hamdard National Foundation (Suit No. 119/72). These four plaintiffs claim declaration that a notification dated 12 -12 -1970, published in the Delhi Gazette, on 19 -12 -1970 ("the impugned notification") by which through entries 63, 63 (a), 63 (b) and 64, they were notified as wakfs, is illegal and void. The Dawakhana Wakf was created on 29.08.1948 by Hakim Haji Abdul Hameed Saheb (hereafter "original plaintiff"), his brother Hakim Hafiz Mohammed Said and his mother Mst. Rabea Begum Saheba. Hakim Hafiz Mohammed Said was declared an evacuee by the Custodian's order dated 1.8.1949 and Mst. Rabea Begum Saheba died in Delhi on 9.10.1949. The original plaintiff became the sole Mutawalli of the Dawakhana Wakf. The original plaintiff died on 22.07.1999; by virtue of the wakf Deed dated 28.8.1948 and the declarations dated 10.10.1985 and 30.09.1995 (of the original plaintiff), Abdul Mueed the senior most amongst male descendants of the sole Wakif Mutawalli became the chief Mutawalli for management of the Dawakhana Wakf.

(2.) The suit contends that the Dawakhana Wakf was created as the founders were desirous to setting apart and assigning a fixed portion of the income derived from the business of Hamdard Dawakhana, which after the creation of the Trust, became the Dawakhana Wakf, for public welfare and charitable purposes to advance the cause of Indian Medicine and for benefiting the countrymen from the blessings of ancient system of medicine and ensuring that it is not thwarted by selfish and unscrupulous conduct of anyone. The objects of the Wakf, inter -alia relied on, are, establishment of a research Institute for the purpose of discovering the properties, action and active principles of herbs and simple medicines; establish and conduct a Tibbia College in conformity with known standards; to establish and run charitable hospitals and clinics where poor patients are given free treatment according to the principles of indigenous systems of medicines; to establish and run educational, commercial, industrial and cultural institutions or to aid those which are already in existence; to build schools, laboratories, inns, wells, mosques, khanghas, grave -yards or such other buildings of a public nature as may benefit the community and country of those which have as their objects perpetuation of the memory of important historical incidents or historic personages or to aid in the repairs, supervision, extension and improvement of those already in existence, and to publish books, pictures, maps or literature or to aid in their publication by which the community and country are likely to benefit.

(3.) It is contended that initially only the net profit of the business was created as the income of the wakf, which was divided into two portions, one -fourth being named as "Khandani income" and the three -fourth as the "Quami Income". Khandani income devolved upon the founders and their heirs; the Quami income on the other hand, was dedicated to the purposes of the charity. Later, in view of the declaration dated 10.10.1985 by the original plaintiff as well as those of his two sons Abdul Mueed and Hammad Ahmed, inter -alia, provisions in the Wakf deed (dated 28.08.1948) relating to "Khandani Income" were deleted altogether. "Khandani Income" was declared not to arise even after the original plaintiff's death and had ceased to exist for all times to come. It is asserted that the Dawakhana Wakf does not fall within the purview of the Wakf Act, 1954 (hereafter "the Act") inter -alia because the dedication of quami income for public or charitable purpose was not confined for the benefit of any particular community, but for all. It is stated that the definition of the term "beneficiary" under law is not in accord with objects of the Wakf deed, in question; the purposes for its creation are not pious, charitable objects of public utility sanctioned by the Muslim Law, but are secular. The suit also says that from its nature, dedication of income of a business does not and cannot fulfill the twin conditions namely, permanent dedication, and existence of movable and immovable property. It appears that wakf of a running business with its assets and liabilities -as in this case was never in the contemplation of the framers of the Act. The plaintiff also contends that the provisions of Sec. 31 (to prepare a budget for the next year showing estimated receipts and expenditure during that financial year) or Sec. 3 (g) defining "net annual income" and the deductions permissible under the Act cannot be applicable to it. The Dawakhana prepares and sells its products/medicines directly and through agents. It is impossible for such a concern to prepare a budget in advance for the next year showing the estimated receipts and expenditure during the financial year.