(1) The plaintiff, who is the appellant in this second appeal, filed a suit for a declaration that the institution Hazarat Sha Rahamathulla Saheb Takya of Pakkiri Thaikkal and the suit properties in the plaintiff's management do not constitute a wakf under the Muslim Wakf Act.
(2) In 1626 A. D. Rajashri Malaharji Godreo Saheb, the then Maharajah of Tanjore, made a sarvamanyam grant of the suit properties to an ancestor of the plaintiff by name Syed Sha Rahmatulla. The successors of Rahmatullah were in possession of the properties for nearly 300 years. In 1921, there were some disputes regarding the management of the properties, and O. S. 95 of 1921, was filed in the Subordinate judge's court, Mayuram, for removing Gulam Jailani and Mohamed Ghouse from the management of the properties and for framing a scheme. A scheme was framed and on appeal the High Court confirmed the findings of the trial court but modified the scheme in some respects. The High Court recognised the hereditary nature of the office of the trustee, and appointed the present plaintiff, though a minor, as trustee of the institution. After the passing of the Muslims Wakf Act, 1954, the Wakf Board called upon the plaintiff to register the institution as a wakf under the Act. The plaintiff contended that the suit Takya was not a wakf and that the properties were not wakf properties and that the original grant was by a Hindu Raja and therefore the institution would not be wakf under the Muslim Wakfs Act 1954. He further contended that the subsequent amending Act passed by the Madras Legislature in 1961, which came into force on 20-4-1961 after the disposal of the suit by the trial court on 21-7-1961, cannot have retrospective operation and is not applicable to this case. It was submitted that the Madras Act is ultra vires in that it is repugnant to the Muslim Wakfs Act passed by the Central Legislature and as the President's assent was not obtained, the Madras Act could not have any effect. Even if the Madras Act is held to be applicable to the facts of the case, as the grant was given to Takya, it being not for the support of one of the institutions mentioned in S. 2 of the Madras Act 19 of 1961, it was argued that the property is not wakf.
(3) Pending second appeal, Act 34 of 1964 the Wakf (Amendment) Act 1964 was passed by the Parliament. Sec. 66-C was inserted by the Amending Act, which is in the following terms:--
"Notwithstanding anything contained in this Act where any moveable or immoveable property has been given or donated by any person not professing Islam for the support of a wakf being-(a) mosque, idgah, imambara, dargah, khangah or a maqbara; (b) a Muslim graveyard; (c) a choultry or a musafarkhana, then such property shall be deemed to be comprised in that wakf and be dealt with in the same manner as the wakf in which it is so comprised."
\Coming into force of this amendment makes it unnecessary to consider the question whether the Madras Act 19 of 1961 is repugnant to Muslims Wakf Act (Central Act) of 1954, and as President's assent was not received the Madras Act is void under Art. 254 of the Constitution.
(4) According to Act 34 of 1964, even when a person not professing Islam, donates immoveable property for one of the purposes mentioned in the section, that property is wakf. If this amendment is applicable to the present case, the contention put forward by the appellant in the courts below that the original grant being by a Hindu Maharaja the Wakf Act is not applicable, has to fail. The suit is by the plaintiff for a declaration that the institution and the suit properties do not constitute a wakf and this declaration obviously cannot be given after the coming into force of the Central Act 34 of 1964. The contention that the rights of parties should be declared as on the date of suit cannot be upheld. In Lachmeshwar Prasad v. Keshwarlal, AIR 1941 FC 5, it was held that the appellate court was entitled to take into account even facts and events which have come into existence after the decree appealed against and that consequently the appellate court was competent to take into account legislative changes since the decision in appeal was given and its powers were not confined only to see whether the lower court's decision was correct according to the law as it stood at the time when its decision was given. The decision is cited with approval by the Supreme Court in Kotturuswami v. Veeravva, . Pending the appeal to the Supreme Court S. 14 of the Hindu Succession Act 1956 came into force. It was contended that according to the provisions of S. 14 of the act the widow became full owner of her husband's estate and was not a limited owner, thereof. The Supreme Court observed that it is well settled that an appellate court is entitled to take into consideration any change in the law. The coming into force of Act 34 of 1964 pending second appeal, therefore, will have to be taken into account, and the donation of an immoveable property, even though by a person not professing Islam would be a wakf, if the other conditions are fulfilled.
(5) It was contended by Mr. Sankara Iyer, learned counsel for the appellant, that the original grant was by a Hindu Rajah for the benefit of Rahmathullah's Takia in Sarvamnayam and therefore the grant was personal and not for the benefit of a Muslim religious institution. He submitted that a grant to Takia will not be a wakf.
(6) Apart from a copy of the English translation made by the court of the original grant in 1906, no other document is available. It is not clear from the translation whether Rahamathulla was living at the time of the grant or whether at the time of the grant there was a Takya in existence by name Rahmatullah's takya. I am inclined to construe the grant as one in favour of Rahamatullah who was living at that time. The recital that the affairs be conducted from descendants to descendants, from son to grandson in perpetuity would probabilise that the grant was made in favour of Rahamatulla. The word Takya is translated as meaning mendicant's rest house, monastery.
Mullah on Principles of Mohamedan Law, at page 200, states that Takia means literally a resting place and hence a burial ground is sometimes called a Takia, that the fact that a place is called a Takia does not prove that it is wakf property and that a Takia may be only a place of assembly in a village and devoid of any religious significance. Takya would mean the abode of a religious Muslim before his pious life and teachings attract public notice and before disciples gather round him, and a place is constructed for their lodgment. Fyzee on Outlines of Muhamadan law at page 315 states as follows: "Not every Takia is necessarily a wakf, but some may become so by long user or by endowment". The word Takia sometimes would also include the tomb of a saint or a Muslim graveyard in general. The donation to a tomb of a Muslim saint (durga) or to a Muslim graveyard will be wakf under the definition. But a donation to a Takia, which is only as an abode of religious Muslim, may not be wakf. The original grant of 1626 by the Hindu Rajah does not indicate that it was for the benefit of a durga or a Muslim graveyard. From the tenor of the document, and from the probabilities it is most likely that the donation by the Hindu Rajah was to Ramatullah, a religious Muslim, for the upkeep of his abode. If so construed, the grant by itself will not be a wakf.
(7) Mr. Mohamad Ismail, learned counsel for the respondent, submits that, even if it is found that the original grant would not be a wakf, the subsequent user would bring the institution and the properties under the Wakf Act. Under the Muslim Wakf Act, 1954, Wakf includes a wakf by user also. It is submitted by the respondent that from the scheme framed by the Madras High Court in A. S. 419 of 1924, in which the present plaintiff was appointed as the trustee it would be very clear that subsequent to the original grant this institution and the properties became wakf by user.
This contention of the learned counsel will have to be upheld, for in the scheme framed for the administration of the trust, it is provided that the properties "shall be held by the trustee for the time being of the Takia the mosque durga, the Mazafarkhana and the wells and tanks and the trees in the Takya described in the plaint A schedule". The object of the Trust is stated to be the celebration of the Kandiri of Hazarath Syed Sha Gulam Mohideen Shuttari who is entombed in the Durga, etc., the Fatiashas of Muhamad the Prophet, and Syed Sha Rahimatulla, the founder of the institution and Moharam, feeding and giving Sadavarth, to all Fakhirs halting in the Mazafarkhana every day, keeping the mosque, Durga, Mazafarkana and the tank in the Takya in a state of good repair and good condition etc. From the terms of the scheme it is clear that, by the time the scheme was framed, by long user the property comprised of a Durga, a Mosque, a Mazafarkhana and other religious institutions of Muslims. The entire income from the property is devoted to the religious purposes of Muslims.
Mr. Sankara Aiyar submitted that the surplus left out of the income is directed to be utilised by the descendants of Rahamatullah. A reading of the scheme does not bear out this contention. The surplus is directed to be awarded as scholarships to suitable applicants from among the descendants of Hazarat Sha Rahamatulla Saheb. From the fact that some preference is shown to the descendants of the founder, it cannot be said that the endowments ceases to be a wakf. The scheme by which the plaintiff was appointed as the trustee of the institution establishes that the institution if a wakf, and on this aground the appeal will have to be dismissed with costs.
(8) Appeal dismissed.