Supreme Court Allows Appeal in Wakf Act Case Holding No Valid Wakf Created Due to Absence of Dedication and Divestment. Founder's Retention of Possession and Lack of Public Prayer Access Failed Essential Tests Under Section 2(1) of Wakf Act, 1954.

Civil appeal by special leave against concurrent findings of lower courts that a wakf was created and appellant had no right to cancel the deed.

Appellant sought to set aside the judgments of the High Court and lower courts, and to obtain a declaration that no wakf was created and the cancellation deed was valid.

Appellant, as owner, executed a registered document in which he gave property to his father for life enjoyment of usufruct and directed that after father's death the property be used for Muslim Jamat Mosque; later by a deed dated November 30, 1980, he cancelled that provision; lower courts held wakf created and cancellation invalid, prompting appeal.

Trial court and first appellate court held wakf created; High Court of Kerala in SA No.86 of 1986 (judgment dated November 16, 1993) and RP No.251 of 1993 (order dated January 12, 1994) confirmed and dismissed appellant's appeal and review.

Whether a wakf stood created under the Wakf Act, 1954 by virtue of the provision in the registered document Whether the appellant had the right to cancel the deed during the lifetime of his father

Appellant contended that no valid wakf was created because there was no declaration of intention to dedicate, no divestment of ownership, and no delivery of possession for public use as mosque. Lower courts held that wakf was created and appellant had no right to cancel the deed, as the document contained a dedication to mosque.

To create a valid wakf for a mosque, the founder must declare his intention to dedicate the property, divest himself completely from ownership, and make the property accessible for public prayers. A mere provision that property will be used for a mosque after the death of a life beneficiary, without immediate dedication, divestment, or public use, does not create a wakf under Section 2(1) of the Wakf Act, 1954. The founder retains the right to cancel such deed before any valid wakf comes into existence. The Court followed the principles in Syed Mohd. Salie Labbai v. Mohd. Hanif that dedication requires declaration, divestment, and public access, and held that the appellant's retention of exclusive possession and enjoyment through his father, absence of public prayer or access, and cancellation during the father's lifetime negated wakf creation.

The primary question for consideration is: whether by virtue of above provision mentioned in the registered document, wakf stood created under the Wakf Act, 1954? It would thus appear that in order to create a valid dedication of a public nature, the following conditions must be satisfied: (1) that the founder must declare his intention to dedicate a properly for the purpose of a mosque. No particular form of declaration is necessary. The declaration can be presumed from the conduct of the founder either express or implied: (2) that the founder must divest himself completely form the ownership of the property, the divestment can be inferred from the fact that he had delivered possession to the Mutawalli or an Imam of the mosque. Even if there is no actual delivery of possession the mere fact that members of the Mahomedan public are permitted to offer prayers with azan ad ikamat, the wakf is complete and irrevocable; and (3) that the founder must make some sort of a separate entrance to the mosque which may be used by the public to enter the mosque. From the facts it is seen that the property was in exclusive possession and enjoyment of the father during his life time enjoying the usufruct thereof. There was no dedication and public was not allowed to have any prayers on the property as mosque: nor the public had access to it. During the life time of the father himself, the appellant had cancelled the deed.

The appellant filed suit before the trial court claiming that no wakf was created and cancellation deed was valid. The trial court held wakf created and dismissed the suit. The first appellate court affirmed. The High Court of Kerala in Second Appeal No.86 of 1986 by judgment dated November 16, 1993 and in Review Petition No.251 of 1993 by order dated January 12, 1994 dismissed the appellant's challenge. The appellant then filed special leave petition before the Supreme Court, which granted leave and heard the appeal; respondent was served but did not appear, and the Court appointed Shri E.M.S. Anam as amicus curiae.

• Wakf Act, 1954: Section 2(1)
• Wakf Act, 1995: Section 2(r)