Srinivasan, J.
1. The plaintiff in the suit is the appellant before me. There is a long history to this litigation. The plaintiff is a society registered under the Societies Registration Act. It is formed by the members of Athar family.who are Muslims. The administration of this society is governed by a scheme framed in a suit O.S.No. 63 of 1943 on the file of the Principal Subordinate Judge.Coimba-tore.The scheme was modified by this Court in A.S. No. 222 of 1948. It is seen from the provisions of the scheme that the membership of the society is limited to all til ale persons born in the Athar Family or having marriage connection in the Athar Family.or who have for generations past accepted the principles of the Athar Jamath.or the person and descendants of persons who have signed the Ekrarnama of 1920. It is made clear that only persons who have attained the age of majority can become members. The object of the society are set out in Clause 4 of the scheme and they are as follows:
To manage the Masjid and its affairs; To establish Schools and other Charitable institutions for secular and Religious Education; To help the needy among the Muhammadans such as Syeds, Sheikhs, Ulemas, Musafars, Etheems and the needy members of the Association. To do all things generally which add to the glory of the propbet and peace and prosperity among his subjects particularly the Members of the Jamath and to carry out such other and further purposes that. the Association in its General Body Meeting by an absolute majority may from time to time provide.
Clause 5, which provides for management of the society declares that all the properties of the Jamath shall vest in the General Body of the Maha Sabai. The Maha Sabai is defined as all the male members of the Jamath in Meeting assembled, whose names are found in the roll of members, which shall be kept by the Executive Committee. It is not necessary at present to refer to the other provision of the scheme. They will be referred to whenever necessary.
2. On 3-6-1959, the Tamil Nadu Wakf Board published a notification under Section 5(1) of the Wakf Act, declaring the suit properties as wakf properties. Challenging the validity of the said notification, the plaintiff herein filed a suit O.S.No. 86 of 1960 on the file of the Sub Court, Coimbatore. The relief prayed was for declaration that the suit properties were not wakf properties, for cancellation of the notification issued by the Wakf Board. That suit was disposed of by Judgment dated 31-8-1962 and the same is marked as Ex. Al. The learned Subordinate Judge found that the plaintiff had not proved the suit properties to be its private properties and that the defendant had not proved that the properties were Wakf properties, excepting with reference to a mosque which was item No. 3 in the plaint schedule therein. There were two appeals in this as against the said judgment, one by the Wakf Board and the other by the society.
3. This Court set aside the findings given by the Subordinate Judge, but confirmed the decree cancelling the notification made by the Wakf Board. Some of the observations made byx the Court in its judgment can be usefully set out herein:
The Wakf Board has preferred A.S. No. 588 of 1963 and the plaintiff association has preferred A.S. No. 609 of 1953. Both the appeals were heard by us for some time, and after a careful scrutiny of the records, we are inclined to take the view that neither side had placed relevant material before the Trial Court... The plaintiff has not filed the title deeds with regard to all the properties claimed to belong to the association. The plaintiff has also not filed the account books of the association which will throw material light on the question whether the properties are acquired and retained through-out as properties owned by the plaintiff association or whether at any point of time any of the properties were dedicated to the VVakf. It is unnecessary to dilate upon those aspects of the matter, and it is sufficient to say that these are aspects on which no thought was bestowed by the parties as well as the trial Court. The best course under the circumstances is to set aside the notification dated 3-6-1959 with liberty to the Wakf Board or the Special Officer to initiate fresh proceedings under the Wakf Act. It is hardly necessary to emphasise that as and when fresh proceedings are so initiated adequate notice will be given to the plaintiff - association and the plaintiff also will place all the materials before the Wakf Board with regard to all the properties, how they were acquired, and how they were dealt with, and also produce all the account books and other records connected therewith. It is only after the scrutiny of all the records, the Wakf Board should declare what properties would constitute Wakf.
This judgment was delivered on 13-7-1970.
4. It appears that there were some inspections by the Inspector of the Wakf Board and some documents were looked into by him. There is correspondence in evidence of the same. A letter written by the Superintendent of Wakfs, Western Zone, Salern-7 to the Secretary of the plaintiff temple is marked as Ex. A15. It refers to the fact that th'ere were several records yet to be examined by him and that he was verifying the records particularly the tax remittances to the Municipality. This letter is dated 20-7-1973. Another letter dated 22-8-1973 and marked as Ex. A1 is written by the Superintendent of Wakfs, Western Zone, Salem-7 to the Secretary of the plaintiff Jamath, and it is in the following terms:
You may be aware that a fresh enquiry was conducted by me regarding the Athar Jamath according to the High Court's judgment. I have already perused and verified many documents, accounts and all other relevant documents. I have to complete my report immediately and in this connection 1 want to know your stand regarding the properties of the Athar Jamath. Jon should clearly state whether you egree or disagree that the Athar J-amaph properties are Wakf or not. I am again visiting Coiinbatore on 3-9-1973 and yourself and the President should give a statement to be recorded by me regarding the stand taken by you in this matter at present.
The aforesaid letter shows that the Superintendent of Wakfs had opportunity to peruse the documents of the plaintiff Jamath tend he had done so to a large extent.
5. It appears there was further correspondence between the Board and the plaintiff that the Board had been posting the. matter for hearing. The mutter was been adjourned on several occasions. Ultimately, an order was passed on 21-6-1976. The same is marked as Ex. A3. The order is signed by the Chairman of the Wakf Board. At the bottom of the order it is stated that the order was dictated to the stenographer, transcribed by him and pronounced by the Chairman in open Court. By that order, the suit properties were declared to be wakf properties. I will refer to the details of the order later. This declaration was published in the Gazette on 22-6-1977 one year after the order. The gazette publication reads that the Chairman, Tamil Nadu Wakf Board notified Athar Jamath Association and Mosque, Coimbatore Town Wakf and properties attached to it as wakf surveyed under Section 15(2)(n) of the Wakf Act. Under column 7, the object of the Wakf is stated to be for the purpose of conducting prayers in the mosque, which was created by the Muslims of Coimbatore Town. In Column 21, it is mentioned that the Wakf is managed under a scheme framed by the Sub Court, Coimbatore, in O.S. No. 63 of 1943 as amended by the High Court in A.S. No. 222 of 1946.
6. After the publication of the said notification, the plaintiff issued a notice Ex. A5 dated 22-7-1977 the Tamil Nadu Wakf Board under Section 56 of the Wakf Act. There was no reply by the Wakf Board to the said notice. Thereafter, the present suit was filed by the plaintiff on 27-4-1978. The plaintiff has prayed for setting aside and revoking the decision of the Tamil Nadu Wakf Board in the order dated 21-6-1976 and the subsequent publication made in the Gazette dated 22-6-1977 and for a permanent injunction restraining the Wakf Board from passing orders or doing any act or taking any steps pursuant to the aforesaid notification. The claim of the plaintiff in the plaint is that the suit properties are owned by the plaintiff society as its private properties and that they would not be 'Wakf' within the meaning of the Wakf Act. The complaint of the plaintiff is also that the Wakf Board did not hold any enquiry as contemplated by the provisions of the Wakf Act and that the order passed by the Chairman of the Wakf Board is null and void, as it is not made in accordance with the procedure prescribed. It is specifically alleged in the plaint that the order is passed only by the Chairman and not by the Wakf Board as such and, therefore, the order is NON EST in law.
7. The suit was contested by the Wakf Board on the ground that the properties constituted a Wakf and that the order of the, Chairman was based upon a resolution passed by the Board and that the majority of the members of the Board took part in the meeting and only after they decided that the properties constituted a Wakf, the Chairman passed the impugned order.
8. The trial Court accepted the contentions of the plaintiff and granted a decree as prayed for by it. On appeal, the learned District Judge of Coimbatore has reversed the same taking the view that the properties constituted a Wakf. The learned appellate Judge has relied upon five documents, Exs. B26 to B30 in support of his conclusion that the properties are wakf properties by user. In fine, he set aside the decree granted by the trial Court and dismissed the suit.
9. In this second appeal, it is contended by learned Counsel for the appellant that the Tamil Nadu Wakf Board has not acted collectively and that the impugned order was patted by the Chairman only and, therefore, It Is null and void. Secondly, it is contended that even if there was no infirmity' in the passing of the order, it is not sustainable in law as there is absolutely no evidence to prove that the suit properties are wakf properties. Learned Counsel submitted that unless there is evidence of dedication of the properties to the specified purposes as required by the definition of 'Wakf', these properties cannot be treated as Wakf properties. As against this, the contention of learned Counsel appearing for the Wakf Board is that the scheme under which the society is managing the properties is itself sufficient evidence to show that the properties and the income therefrom are being utilised only for religious, charitable and pious purpose. If the income of the properties is utilised for those purposes, then the Court can infer that there is a 'Wakf' by user. According to learned Counsel for the respondent, the society is holding the properties only as Mutawalli and that the properties are Wakf properties. Learned Counsel also relies upon the documents Exs. B26 to B30. According to learned Counsel for the respondent, there is no irregularity in the passing of the order by the Wakf Board, as it is passed only on the basis of a resolution passed by the members of the Board in a meeting validly held.
10. I would first deal with the contention that the objects for which the society was formed would itself prove that the properties held by the society are Wakf properties. If this contention is accepted, then, no evidence is at all required for holding that the properties are Wakf properties. The submission of learned Counsel for the respondent is that the objects, as aet out in the scheme are undoubtedly pious, religious and charitable purposes. Learned Counsel draws my attention to the definition of 'Wakf' as found in Wakf Act. Section 3(1) of the Wakf Act defines '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-alaulad to the extent to which the property is dedicated for any purpose recognised by Muslim Law as pious, religious or charitable.
Learned Counsel submits that it is not disputed by the society that they are in possession and management of the suit properties. If the society is in management of the entire suit properties for the purpose mentioned in Clause 4 of the Scheme and if those purposes are pious, relilgious and charitable, as contemplated by Section 3(1) of the Act, then the only conclusion that can be reached is that there is a permanent dedication of these properties for those purposes. Learned Counsel relies upon the decision of the Bombay High Court in Gulam-Hussein v. Emperor : AIR1941Bom152 . In that case, the accused with some others collected monies from Dawoodi Bohras at Sunnel in Indore State, for the purpose of building a madrassa at Sunnel, and a madrassa was duly built. The trustees of the madrassa purchased an immovable property at Bhoiwada in am bay put of the funds belonging to the madrassa They executed a declaration of trust, admitting that they had purchased the Bhoiwada property out of monies collected from Dawoodi Bohras at Sunnel for the support of a madrassa at Sunnel, and declaring that they held the property upon trust, in substance, for the madrassa. The appellant therein was called upon to deliver accounts under Section 3, Mussalman Wakf Act, and because he failed to do so, the prosecution was launched against him. One of the questions which was considered by a Division Bench of the High Court was whether the property therein constituted a wakf. Dealing with that aspect of the matter, the learned Judge has observed as foilows:
Then we have to see what is the meaning of 'Wakf' in order to deal with the point that a trustee cannot create a Wakf. Now, 'Wakf' is defined in Section 2(e) of the principal Act and we are only concerned with that definition and we are not concerned with the question often difficult as to whether a particular trust constitutes a Wakf under Mahomedan Law. Under the definition in this Act 'Wakf' means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman Law as religious, pious and charitable. It is not disputed that. the purpose of benefiting the madrassa at Sunnel is a purpose recognized as charitable by the Mussalman Law; but it is argued that there has been no permanent dedication by a person professing the Mussalman faith, because it is said that the only person who can dedicate a property must be a beneficial owner and a trustee cannot dedicate. I know of no authority for that proposition, though of course a trustee must keep within the terms of his trust, but in any event the dedication here was not merely the declaration of trust of 1934 by trustees. The dedication is constituted by the collection of money on terms which made it charitable in the hands of the trustees who held it, their subsequent investment of that money in immovable property, and their declaration of a trust of that immovable property for the charitable purpose for which it was held. That, to my mind, constitutes a good dedication. In my opinion, therefore the learned Chief Judge of the Small Cause Court was right in holding that this was Wakf property and the learned Chief Presidency Magistrate was similarly right.
11. The said decision will not help the respondent in the present case. As it is seen from the facts there was a declaration of trust executed by the trustees in which they had accepted that they purchased the property out of the monies collected from Dawoodi Bohras for the purpose of building a inadrassa at Sunnel and that held it on trust. On the facts of that case, the Bench decided that it was wakf as defined by the Act. In the passage extracted above, the Bench has placed reliance specifically on the declaration of the trust. That according to the Bench, constituted the dedication. There is no such declaration in the present case. The facts of the present case are entirely different.
12. The next decision that is relied upon by learned Counsel for the respondent is in Maher Husein v. Alimahomed : AIR1934Bom257 . Learned Counsel refers to this case for the purpose of showing that the dedication which is necessary for constituting a 'Wakf can be inferred from long user. It is seen that in that case, the Bench had considered the entire evidence on record which was quite voluminous and therefrom held that there was a long user with reference to one of the properties involved in that dispute and from that user, the Bench inferred a dedication. With regard to the other properties for which there was not sufficient evidence to prove the long user, the Bench held that the dedication could not be inferred and they were not wakf properties. The decision turned entirely on the facts of that case and cannot help the respondent in this case. In fact, the Bench had made the following observation which may go against the respondent:
The authorities cited show that there must be a declaration of dedication which should be made contemporaneously with the act of dedication : 'Banubi v. Narasing Rao I.L.R.(1906) Bom. 250. The Wakif must divest himself of the ownership of the property : Muthammed Yunus v. Muhammad Ishaq Khan : AIR1921All103 . Physical delivery is not essential, but such possession as is possible must be given : Abadi Begum v. Kamiz Zainab .
13. Learned Counsel draws my attention to certain passages in Verma's Islamic Law, 6th Edition, at page 655. That again refers to the fact that creation of Wakf can be established by user, but, the user must be of such an unequivocal nature which can only lead to an inference of dedication of the property to the wakf. What is required to be established is the Intention on the part of the owner to dedicate a particular property to religious or charitable purposes, or, in other words, the intention of the owner to create a wakf of the property. Such intention may be established by a declaration or may be inferred from user. Even from the passages read out by learned Counsel for the respondents, it is clear that it is essential for the creation of a wakf, there must be dedication. It is only the dedication that has to be inferred from the long user. If there is no dedication or if it is not possible to infer dedication, there cannot be any wakf. It is not necessary to point out that in the case of a Wakf, the property is dedicated to God and it ceases to be owned by any human being. In the present case, there is no such dedication as contemplated by Section 3(1) of the Wakf Act. Clause 5 of the Scheme specifically recites that all the properties of the Jamath shall vest in the General Body of the Maha Sabai. Once it is clear that the properties vest in the General Body of the Mahasabai, it cannot be said at the same time, that they are properties of God or that they have been dedicated to God. Unless there is such a dedication to God, properties cannot be treated as Wakf properties.
14. No doubt, the objects mentioned in Clause 4 of the Scheme are pious, religious and charitable, but still a discretion is given to the association to carry out such other and further purposes that they may from time to time provide in th'eir General Body meeting. The last clause in the scheme which deals with the funds of the Association provides that the surplus funds shall be set apart by the General Body at its Annual Meeting towards a capital fund for starting and maintaining an Industrial or Technical Institution attached to the Jamath for imparting training to pupils of the Athar Jamath Community in particular and Muslim community in General in Technical and Industrial Education. In this connection, learned Counsel for the appellant refers to and relies upon the decision of the Supreme Court in Nawab Zain Yar Jung v. The Director Of Endowments : [1963]1SCR469 . The question before the Supreme Court was whether there could be a trust for religious and charitable purposes, which could be outside the scope of the Wakf Act. The Supreme Court answered that question in the affirmative. The Supreme Court made the following observations which are relevant for the purpose of this caserne Muslim character of the Wakf is also emphatically brought out by certain other provisions of the Act. The proviso to Section 15(1), for instance, requires that in exercising its powers under the Act in respect of any Wakf, the Board shall act in conformity with the directions of the Wakf, the purposes of the Wakf and any usage or custom of the Wakf sanctioned by the Muslim Law. Similarly, Section 15(2)(j) lays down that the Board has power to sanction leases of property for more than three years or mortgage or exchange properties according to the provisions of Muslim Law. Section 21 requires that there shall be a Secretary to the Board who shall be a Muslim and he shall be appointed by the State Government in consultation with the Board, and Section 13 provides that a person shall be disqualified for being appointed a member of the Board if he is not a Muslim. There can, therefore, be no doubt that the wakfs with which the Act deals are trusts which are treated as wakfs under the definition of Section 3(1) and as such, a trust which does not satisfy the tests prescribed by the said definition would be outside the Act. This position is not disputed.
At this stage, it is necessary to distinguish between wakfs recognised by Muslim Law and religious endowments recognised by Hindu Law on the one hand and public charitable trusts as contemplated by the English Law on the other. This question has been considered by the Privy Council in Vidya Varuthi Thirtha v. Balusami Ayyar , Mr.Ameer Ali who delivered the judgment of the Board observed that it is to be remembered that a 'trust' in the sense in which the expression is used in English Law is unknown to the Hindu system, pure and simple. Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind, and for all purposes considered meritorious in the Hindu Social and religious system; to Brahmins, Goswarrils, Sanyasis, etc. When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily affected by human agency.Called by whatever name, he is only the manager or custodian of the idol of the institution. In no case is the property conveyed to or vested in him nor is he a trustee in the English sense of the term, although in view of the obligations and duties resting on him, he is answerable as a trustee in the general sense for mal-administration.' (P. 311). Thus, these observations show that the basic concept of a religious endowment under Hindu Law differs in essential particulars from the concept of trust known to English Law.
Similarly, the Muslim Law relating to trusts differs fundamentally from the English Law. According to Mr.Arneerr 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 wakif is extinguished and the ownership is transferred to the Almighty. The Manager of the wakf is the mutawalli, 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 is known to English Law.
Having noticed this broad distinction between the wakf and the secular trust qf a public and religious character, it is necessary to add that under Muslim Law, there is no prohibition against the creation of a trust of the latter kind. Usually, followers of Islam would naturally prefer to dedicate their property to the Almighty and create a wakf in the convenitional Mobommedan sense. But that is not to say that the followers of Islam are pracluded from creating a public, religious or charitable trust which does not conform to the conventional notion of a wakf and which purports to create a public religious charity in a non-religious secular sense. This position is not in dispute.
15. A perusal of the provisions of the Scheme shows that the properties which are managed by the plaintiff society may constitute a trust, but that would not constitute a 'Wakf within the meaning of the Wakf Act. The mere fact that the objects of the society are pious, religious and charitable, would not make the property owned by the society wakf properties.
16. The lower appellate court relied mainly upon Exs. B. 26 to B.30 in arriving at the conclusion that the suit properties are wakf properties. Ex. B26 is called
There is no equivalent in English so as to bring it under the Transfer of Property Act. It may be treated as a declaration or dedicating at the best. It is for the benefit of Athar Jamath mosque. Exs. B27, B28 and B30 are sale deeds. Ex. B28 recites that the properties were purchased with the funds of Athar Jamath mosque. Ex. B29 relates to a school which was started by the donor under the document. Ex. B30 is also a purchase from the funds of the mosque. Unfortunately, none of the properties which are the subjectmatter of Ex. B26 to B30 have been correlated with any or the suit properties. The trial Court refers to this aspect of the matter and extracts a portion of the deposition of D.W. 1 who has given evidence on behalf of the respondent. It is admitted in the deposition of D.W. 1 that Exs. B26 to B30 were marked in the prior proceedings viz., O.S. No. 86 of 1960, but the Court did not give any credence thereto. He admits that it is not possible to point but the properties to which EXS. B26 to B30 relate. He says at the most, it can only be said that they relate to four items. But, the learned appellate Judge has overlooked this aspect of the matter and proceeded on the footing that Exs. B26 to B30 proved the wakf nature of the suit properties. Unless the documents are correlated to any particular item of the suit properties, it cannot be said that the documents prove the case of the respondent. Just because D.W. 1 asserts that the suit properties are wakf properties, they will not become wakf properties.
17. It is the contention of learned Counsel for the responodent that the plaintiff, who is in possession of all the documents relating to the properties and who has been in management of the suit properties maintaining. accounts therefor, should have produced all the relevant title deeds and the accounts before Court in support of its case. Learned Counsel wants the Court to draw an adverse inference from the non-production of the relevant documents by the plaintiff. The question before the Court is whether the suit properties are wakf properties. In fact, this Court in A.S.Nos.588 and 609 of 1983 already referred to, has directed the Wakf Board to make an investigation and find out whether the properties are wakf properties or not. Unless the dedication is proved, the properties cannot be treated as wakf properties. There is absolutely no evidence of any such dedication. Further, it is not correct to say that the plaintiff has suppressed the documents. In fact, the Chairman of the Wakf Board in his, order dated 21.6.1976 has observed that the management was very reluctant to place all the documents concerning all properties before the Wakf Board. But, it is seen from Exs. A19 and A15 that the documents were placed at the disposal of the Superintendent of Wakfs for his perusal. In the face of Ex. A19, it is not open to the Wakf Board to contend that the documents were not made available to the Wakf Board for ascertaining the correct position with regard to the nature of the properties. It is seen that after the disposal of the earlier proceedings by the judgment of this Court on 13-7-1970, the Wakf Board had taken about six years before publishing the impugned notification. The correspondence shows that the Superintendent of Wakfs had several occasions to go through the documents and decide the character of the properties. If he had found any evidence to prove the dedication, he would have certainly informed the Wakf Board about the same. The complaint that the plaintiff failed to place the documents before the Wakf Board or Court is without any substance.
18. It is also seen from the order of the Chairman, Wakf Board, that he makes a reference to the local Muslims of the Town 'being agitated over the misuse of the Big Mosque and the two Durghas in the heart of Coimbatore Town and their very valuable properties capable of fetching a sizeable income.' After referring to the same, in the very next sentence, the order says that 'the local Muslims do not mind the continued management of the institutions by the plaintiff.' There is absolutely no evidence before Court that any of the local Muslims is in any way dissatisfied with the management by the plaintiff of the suit properties. The Wakf Board has failed to examine the residents of the locality to prove that the properties have been used for the purposes indicated in the definition of 'Wakf. Even if mere user had been proved, that would not be sufficient to lead to an inference of dedication. Unless long continued user is proved from which a dedication could be inferred, it is not possible to hold that the suit properties are Wakf properties.
19. The complaint of the plaintiff that the order dated 21-6-1976 is only that of the Chairman and not that of the Wakf Board is not without substance. Exs. B23 and B24 are certified extracts of the attendance register and the minutes of the meeting of the Tamil Nadu Wakf Board held on 21-6-1976 respectively. Ex. B23 shows that seven out of eleven members were present and they had signed the attendance register. But, Ex. B24 reads as if eight members were present. Thiru Moulvi Abdul Wahab has not signed the attendance register, but he is shown to have been present at the meeting. It is also seen from Ex. B24 that the item is brought into the agenda with the permission of the Chair. The only entry found in Ex. B24 is that.
Item No. 34 Resolution dated 21.6.1976.
Below that we find
'RC.No. H458/Fl/70 CBE
Athar Jamath mosque,
Coimbatore. Orders pronounced.
It is not clear whether there was a resolution by the members of the Board and if there was such a resolution, what were the terms thereof. Normally, one can expect an entry in the Minutes Book setting out the terms of the resolution. For reasons best known to them, the Wakf Board has not chosen to produce the original Minutes Book into Court. The certified extract contains only the entries referred to above. If the Minutes Book refers only to orders which are pronounced, it can be taken to mean that orders were already pronounced.If that referred to the notification of the order passed by the Chairman dated 21.6.1976 it cannot definitely be later to the resolution of the members. If the order is earlier to the resolution of the members, it cannot be based upon the resolution passed by the members. If the resolution is only to ratify or approve of the order passed by the Chairman, that cannot be valid in law. Section 14 of the Wakf Act provides that all questions which came before any meeting of the Board shall be decided by a majority of votes of the members present, and in the case of equality of votes, the Chairman or, in his absence, any other person presiding shall have a second or casting vote. Even assuming that the members present had unanimously decided that the suit property constituted wakf properties, that is not clearly set out in the Minutes Book. Exs. B23 and B24 create a suspicion in the mind of the Court that all is not well with the proceedings of the Wakf Board said to have taken place on 21.6.1976. However, I do not wish to rest my conclusion on the apparent irregularities seen from Exs. B23 and B24. Even assuming that the presumption under Section 114 of the Evidence Act that all official acts must be presumed to have been done in proper manner is applicable to this case in spite of Exs. B23 and B24, I have no hesitation to hold that the conclusion of the Wakf Board that the properties constitute wakf properties is not based upon any evidence. As there is no evidence of any dedication of the properties to the purposes set out in Section 3(1) of the Wakf Act, the properties cannot be treated as wakf properties. Once it is held that the suit properties are not wakf properties, the declaration published by the Board in the Gazette dated 22nd June, 1977 has to be set aside. The relief prayed for by the plaintiff for setting aside and revoking the decision of the Tamil Nadu Wakf Board has to be granted.
20. As regards the consequent relief of permanent injunction, it is submitted by learned Counsel for the respondent that no relief of injunction could be granted against the Wakf Board. Acording to him, it is not necessary for the Wakf Board to make a notification that a particular property is a wakf property and whether a notification is made or not, if really the property is wakf property then the Wakf Board will have jurisdiction over it and can take proceedings under the Act. Even assuming that to be the correct position, I am unable to appreciate learned Counsel's argument that the injunction prayed as relief No. 2 in the plaint cannot be granted. The prayer is only a consequential injunction that the Wakf Board should not take any steps pursuant to th impugned notification. If the said notification is cancelled, then the Wakf Board is not entitled to take any steps in pursuance thereof, Hence, the injunction prayed for has to be granted and the plaintiff is entitled to get both the reliefs prayed for in the plaint.
21. It is urged by learned Counsel for the respondent that there is mosque in item No. l of the suit properties. As against item No. l it is stated under the column 'nature of use' as 'Athal Jamath Mosque and shops'. It is not clear therefrom as to the area occupied by the mosque and the area occupied by the shops. Unless there is a clear demaracation and delineation of the mosque, it cannot be stated that suit item No. 1 should be declared as wakf property. It is open to the Wakf Board to take appropriate steps with regard to the mosque by demarcating and delineating the area occupied by the mosque and declare it to be a wakf, if they so choose. Learned Counsel for the respondent also submitted that there are two dhurgas, a adrassa and grave-yard, but they are not ' described in the properties set out in the notification. As such, it is not possible to deal with them as if they from part of the suit properties. The observation made above with reference to the mosque will equally apply to dhurgas, aiadrassa and grave-yard. If the Wakf Board is able to separately demarcate and delineate the dhurga, madrassa and grave-yard besides the mosque and make a notification clearly identifying those properties separately, they can issue a declaration that such properties are wakf properties. They cannot, however describe compendiously the dhurga, graveyard, mosque or madrassa along with other properties and treat tor declare them as wakf properties.
22. In the result, the second appeal is allowed and the judgment and decree of the learned District Judge, Coimbatore are set aside and the judgment and decree of the' trial Court are restored. The parties shall bear their respective costs throughout.
23. It appears that during the pendencyu of the appeal, in C.M.P. Nos.258 and 259 of 1986 this Court directed the appellants to file a copy of audited accounts once a year with the Wakf Board and deposit contribution at 3% on the net income every year as per the audited accounts. Accordingly, the appellant had opened an account with the Indian Bank, Raja Street, Coimbatore, in the name of the Tamil Nadu Wakf Board represented by its Secretary and deposited the monies to the credit of the same. The appellant will send the pass book and cheque books pertaining to the said account to the Wakf Board with a covering letter requesting the Wakf Board to issue a cheque for the amount standing to its credit. On receipt of the same, the Wakf Board will issue a cheque in favour of the appellant for the entire amount deposited standing to its credit in the said account.