MOYANKUTTY KOYANKUTTY Vs. C MUHAMMED

JUDGEMENT

(1.) THIS second appeal is by the plaintiff in a suit for permanent injunction which was decreed by the trial court but dismissed by the court below, in appeal by the defendants.

(2.) THE plaint property originally belonged to unnipathumma. On her death, Moyankutty the plaintiff's father and his brothers divided the same along with other properties under Ext. Al partition deed dated 2-10-1080. THE partition deed mentioned that the income from the plaint property should be devoted for the purpose of reciting Koran for the salvation of the souls of Unnipathumma and other ancestors of the parties. THE plaintiff's father was constituted the first manager of the property with obligation to see to the proper recitation of the Koran. On his default to do so, the other parties were to appoint one among them to manage. According to the plaintiff his father managed without default till his death and thereafter he had been doing so. THE defendants had been let into occupation of a house in the property under lease by the plaintiff. THEy were now trespassing into the property and committing waste and also attempting to put up other houses. So the suit was laid for permanent injunction restraining the defendants from committing waste in the plaint property or improving the same. THE defendants accepted the original arrangements under Ext. Al under which the plaintiff's father came into management, but they contended that he was dispossessed by his brothers on account of his default and they were, as the sons of a brother, rightfully in present management and the plaintiff had accordingly no locus standi to maintain the suit. THEy also questioned the allegations as to waste and improvements. THE simple questions that thus arose on the pleadings were how far the plaintiff was the wakf manager and whether he was entitled to damages or injunction. THE trial court on a consideration of the evidence, found that the story of the plaintiff's father's displacement set up by the defendants was untrue but because the document Ext. Al was silent as to future management after the death of the plaintiff's father or his brothers, the plaintiff could not claim proper appointment as wakf at present: As person in de-facto management of the property, however, the plaintiff was entitled to maintain the suit. In appeal, the learned Sub Judge of South Malabar, allowed fresh point to be taken as to the validity of the wakf constituted under Ext. Al and having found this in the negative, he dismissed the suit, without more, because the parties were then in the position of co-owners of ordinary property and the suit for injunction as framed could not lie.

(3.) ON the merits also, the court below has in my judgment gone wrong. Reading of the Koran whether in public places or at private houses is included as one of the valid objects of a wakf in Mulla's Mohammaden Law, 14th Edn. at page 165. The authority relied on by the learned author is Sattar Ismail v. Hamid Sait, A. I. R. 1944 Mad: 504. In that case one of the objects for which the wakf trustees could devote the income was the reading of the Koran in public places and also at private houses. The learned judges quoted Ameer Ali's mohammadan Law, Vol. I, p. 273 as follows : "the words 'piety' and 'charity' have a much wider significance in Mussalman law and religion than in any other system. Khair, birr, ishan, etc, include every purpose which is recognised as good or pious under the Mussalman religion and the Mussalman law; and the test of what is 'good' or 'pious' or 'charitable'is the approval of the Almighty. Every'good purpose' (Wajah-ul-khair) which God approves or by which approach (Kur bat) is attained to the Deity, is a fitting purpose for a valid and lawful wakf or dedication. A provision for one's self, for one's children, for one's relatives, is as good and pious an act as a dedication for the support of the general body of the poor". and after distinguishing kunhamkutty v. Ammad Musaliar, I. L. R. 58 Mad. 204, said: "the reading of the Koran in public and private places can only be regarded as religious and pious and it seems to us that it must also be regarded as charitable, for the reading is for the benefit of all mussalmans. The fact that money may be expended on the reading of the Koran in private places as well as' in public places does not detract from the religious, pious and charitable character of the object". Now, the court below relied on the ruling in Kunhamutty v. Ammad Mussaliar, I. L. R. 58 Mad. 204 to hold that under the Mohammadan Law the dedication of the property the income of which is to be devoted merely for the purpose of reciting Koran does not bring about a valid wakf, unless there is an ultimate disposition of the property for charitable purposes. But that was a case where the founder of wakf directed the Koran to be read over his tomb. But even here it is worth while to note the different view expressed by mirza, J. ; Abdulbaker v. Abubaker, I. L. R. 55 Bom. 358. I n a later case in the Madras High Court, Syed Ahmad v. Julaiha Bivi. A. I. R. 1947 mad. 176, the learned judges turned down the broad contention based on 58 Mad. 204, that unless there was an element of public benefit or welfare, no object or purpose could be regarded as charitable under the Wakf Act of 1913 and held that pious acts recognised among the Mussalmans as being for the good of the soul of the settlor or his ancestors are valid objects of a wakf. Stanley C. J. no doubt expressed in 33 All. 400 that the reading of the koran in private served no purpose of public utility. But against this there is the observation of Banerjee, J. in the same case following Ameer Ali on Mohammadan Law that the provision for salary for the recitation of Koran is a perfectly valid expenditure under a wakf arrangement. I hold therefore that the validity of the wakf in this case is beyond challenge.