JOHN Vs. KUNHIBI WAKAF

JUDGEMENT

(1.) THE defendant in a suit for recovery of a building situate within 'an area to which the Kerala Buildings (Lease and Rent Control)Act has been extended, is the appellant in this Second Appeal. THE said building belonged to one Kunhibi who leased it out to the defendant on 18. 5. 1973 under Ext. Al lease deed. THE building involved was a room in a building consisting of two rooms and satisfies the definition of a building, under the Rent Control Act. THE suit for eviction was filed by the present plaintiff bypassing the Kerala Buildings (Lease and Rent Control) Act on the averment that the landlord Kunhibi had created a Wakf by deed dt. 12. 8. 1986 in respect of the building, that the said wakf had been registered with the Wakf board and by virtue of the Notification issued under S. 25 of the Rent Control act, the building stands exempted from within the purview of that Act and consequently, the suit for eviction was maintainable. THE plaintiff claimed that he was the Muthavalli of the Wakf. THE defendant, while he admitted the transaction with Kunhibi the landlord, questioned the creation of the Wakf and the motive with which it was created and since the motive for the alleged creation of the Wakf was to illegally get rid of the tenants of the building, the Wakf was invalid under Muslim law, that he was a tenant protected by the rent Control Act and that the landlord Kunhibi never had the intention that the title to the property should vest in God or to divest herself of the entire rights over the property. He thus, contended that no decree for eviction should be granted since the building was not one which was exempt from within the purview of the Rent Control Act.

(2.) BEFORE the trail court, two documents were produced by the plaintiff to establish that the Wakf had been created by Kunhibi. The document bearing No. 436 of 1986 dated 5. 5. 1986 was marked as Ext. A5 and another document No. 813 of 1986 dated 12. 8. 1986, was marked as Ext. A2. The registration obtained from the Wakf Board was marked as Ext. XI and Ext. XI referred to the deed dated 12. 8. 1986 marked as Ext. A2 which was later in point of time than Ext. A5 dated 5. 5. 1986. The trail court held that the Wakf created by Kunhibi was genuine and valid. Since the Wakf was registered with the Wakf board, the suit was maintainable. The trail court also found that there was a due termination of the tenancy and granted the plaintiff a decree for recovery of possession on the basis that the Rent Control Act did not apply because of the Notification issued under S. 25 of the Act. The trail court seemed to proceed on the basis that Ext. A2 was a valid deed of wakf and its registration with the Wakf Board excluded the operation of the Rent Control Act. On appeal by the defendant, the lower appellate court came to the conclusion that Ext. A5 deed dt. 5. 5. 1986 had itself brought into existence a Wakf and therefore, the subsequent Wakf deed Ext. A2 was invalid. That court held that Ext. A2 would constitute a valid dedication of the property to the Almighty. That court also held that by virtue of Ext. A5, the Wakf had already been created. In the light of this finding, the argument by the defendant that since it was the Wakf Ext. A2 which had been registered with the Wakf Board as is clear from Ext. X1, the exemption would not apply to the Wakf in question created under Ext. A5 since that Wakf was not registered, was brushed aside by the lower appellate court by taking the view that since a Wakf had come into existence and that Wakf is shown to be registered, the exemption would be available to that Wakf and consequently, the suit was maintainable notwithstanding the finding that Ext. A5 had already created a wakf. The appellate Court therefore, confirmed the decree of the trail court. The defendant challenges the decree for eviction passed against him.

(3.) AS observed by the lower appellate court, as regards the words of dedication, there is not much difference or there is practically no difference between Exts. A5 and A2. Probably it is in this context that counsel for the plaintiff did not canvass the correctness of the finding of the lower appellate court that Ext. A5 itself had created a valid Wakf of the property in question. On reading Ext. A5, I am also inclined to agree with the lower appellate court that a wakf has been created for the purposes referred to in that deed. There was no argument before me by either side that Ext. A5 did not contain sufficient words of dedication or words of relinquishment in favour of God and that therefore Ext. A5 did not bring about a valid Wakf. It has therefore to be taken that there was a due dedication and consequent creation of a Wakf by the execution of Ext. A5. If it is held that by Ext. A5 dated 5. 5. 1986 a wakf had been created, it is obvious that Kunhibi did not retain any title in herself thereafter either to cancel that deed of Wakf or to execute another Wakf deed ext. A2 dt. 12. 8. 1986. It is therefore clear that Ext. A2 is incapable of creating any valid wakf since the property had already been dedicated under ext. A5 dt. 5. 5. 1986. I am therefore, inclined to agree with the lower appellate court that by Ext. A5, a valid wakf was created and no valid wakf could be thereafter created by Ext. A2.