1. Heard the learned Advocates appearing for the parties.
2. In this application under Article 227 of the Constitution of India the petitioner being the daughter of Wakif in respect of the wakf property covered under the provisions of Wakf-alal-aulad has challenged the decision of the Wakf Tribunal, West Bengal dated 5th May, 2005 in Appeal No. 5 of 2004 where by and where under her prayer to increase beneficiary allowance as was allowed to the extent of Rs. 5,000/- per month on having a settlement with the Mutwalli of the Wakf Estate by the Wakf Board of West Bengal was set aside and quashed by quashing and setting aside the resolution dated 16th October, 2003 and subsequent resolution as confirmed the same dated 31st December, 2003.
3. In this application the petitioner has justified the order of the Wakf Board and thereby prayed for quashing the judgment impugned of the Wakf Tribunal, West Bengal. This application has been opposed by the respondent No. 1, Mutwalli of the Wakf property by contending, inter alia, that the Wakf Board as well as the Tribunal both had no jurisdiction to pass any order even on consent of the Mutwalli by increasing or decreasing the monthly allowance to the beneficiary of the Wakf as the particular Wakf being the private in nature within the domain of Wakf-alal-aulad which by any stretch of imagination could be the subject-matter of decision and/or adjudication of any Us arising out of such Wakf deed by the Wakf Board in terms of the Wakf Act, 1995 including the earlier Wakf Act as existing before enactment of the said statute namely, Bengal Wakf Act, 1934. For effective decision of the matter, the statutory provisions only are required to be interpreted to address the issue in angle as to whether the particular Wakf property covered under the deed and termed as Wakf-alal-aulad would come under the definition of Wakf and if not whether the Wakf Board has power to decide the question of increase of beneficiary allowance. The Wakf deed has been placed before this Court which was executed and registered long back on 15th July, 1935. This Wakf deed has clearly stated the nomenclature of the Wakf as Wakf-alal-aulad. From the very contents so far as the distribution of the income and usufruct of the Wakf property it appears that the Wakif set up this Wakf only for the purpose of maintenance of the sons and daughters though only some portion which is very negligible was kept aside with a direction to the Mutwalli to expend for repairing the Mosque and some portion for maintaining the poor people. Having regard to the Wakf deed it appears that only the residuary amount after meeting of the maintenance expenditure of the sons and daughters as well as the maintenance of the Mutwalli as fixed, the residuary was directed to be expended for religious purpose. Under the Wakf Act, 1995 the Wakf has been defined under Section 3(r) which reads to this effect:
(r) Wakf means the permanent dedication by a person professing Islam of any moveable or immoveable property for any purpose recognized by the Muslim Law as pious, religious or charitable and includes-
(i) a wakf by user but such wakf shall not cease to be a wakf by a reason only of the user having ceased irrespective of the period.of such ceaser;
(ii) grant including mashrut-ul-khimat for any purpose recognized by the Muslim Law as pious, religious or charitable; and
(iii) is the provision relating to wakf to the Wakf-alal-aulad which clearly provides that only to that extent of the property as dedicated for any purpose recognized by Muslim Law as pious, religious or charitable would come under the definition of the wakf.
4. Hence, on a bare reading of the said statutory provision it appears that the residuary portion which was directed to be expended after meeting up the expenditure of the sons and daughters namely, Mutwalli and the beneficiary thereof, for the purpose of poor people and for repairing the Mosque surely would be deemed as pious, religious and charitable to cover that portion under the definition of the word "wakf" in terms of Section 3(r) of the said Act. But so far as the maintenance allowance and/or beneficiary allowance as directed to be paid by Wakif and the remuneration of the Mutwalli as fixed, those cannot be considered as for religious, pious and charitable purpose, but the same would be deemed exclusively for the private purpose to maintain own family members of the Wakif. Hence, those portions of the property which are always a major portion of such type of wakf as determined the rights of the private individuals namely relatives of the Wakif so far as their maintenance and beneficiary allowance, the same cannot be deemed as an action having ingredients of pious, religious and charitable materials. Hence, those portions and/or those factors addressed for such maintenance and/or beneficiary allowance cannot be within the determinative jurisdiction of the Wakf Board for increase and/or decrease of the same in terms of Section 3(r). The said portion of the property of a Wakf-alal-aulad would not come under the purview of the definition of the word in terms of Section 3(r)(iii) of the said Wakf Act, 1995. Though the present wakf deed was executed when the Bengal Wakf Act, 1934 was in existence and after repeal of the said provision, the present Wakf Act, 1995 has been introduced, still then there is no material change so far as adjudicating power of the Wakf Board to increase any beneficiary allowance and/or decrease thereof as fixed and determined by the Wakif by exercising the power under the concerned Wakf Act. Furthermore, even after repeal of the said Bengal Wakf Act, 1934, the present Wakf Act, 1995 mandated the registration of the wakf property in terms of Section 36 of the said Act of 1995, but it has not changed materially the definition of Wakf Act in terms of Section 3(r)(iii) of the said Act, 1995. This point has been finally settled and decided by a Division Bench of this Court in the case of Anis Fatma Begum v. Board of Wakf, West Bengal . The beneficiary allowance also could not be increased by the Wakf Board. However, having regard to the fact that when Wakif executed a deed keeping a beneficial provision for maintenance of the daughter to the extent of Rs. 15/- only, the same amount at that time surely was a bigger amount but in view of the change of price index, the same amount now has been not only a meagre amount but absolutely an abnormal amount having no relevancy. Under such situation what will be the remedy of the petitioner, the beneficiary, in the event the impugned order of the Wakf Board is set aside and quashed? This Court need not to detain itself for such an answer as it has been judicially confirmed by the judgment of the Allahabad High Court relying upon the earlier judgment on that issue in the case of Nawab Shahrukh Jahan Begam v. Saiyed Enayat Husain Khan and Ors. reported in AIR 1975 Allahabad 452, whereby it has been settled that the parties remedy lies by filing a civil action before the competent Civil Court praying such relief. From the said judgment of Allahabad High Court it is also clear that the amount could be increased by the competent Civil Court.
5. Hence, having regard to such legal position, this Court is of the view that Section 3(r)(iii) of the Wakf Act, 1995 has no applicability in respect of the wakf property covered under the Wakf-alal-aulad and more particularly the beneficiary allowance issue as was identified by the Wakif since cannot be considered within the definition of the wakf, surely the Wakf Board has no jurisdiction to increase of beneficiary amount even on consent of the Mutwalli as it is a settled law that by consent of the parties a jurisdiction could not be vested to some one which has not been provided under the statute.
6. In that view of the matter, the decision of the Board annexed in this application which has been set aside and quashed by the Tribunal was not legally maintainable as the Wakf Board had no jurisdiction to pass said decision. In that view, both the orders passed by the Wakf Board to that effect and the decision of the Tribunal also as the Tribunal had also no jurisdiction to deal with the matter under the Wakf Act, 1995 in view of the lack of jurisdiction, accordingly are set aside and quashed. However, it is made clear that quashing of both the orders surely would not preclude the present petitioner to agitate her grievance to the appropriate Civil Court praying increase of beneficiary allowance.
7. It is needless to say that in the event any civil action is initiated by the petitioner, the same would be disposed of in accordance with law by the competent Civil Court.
8. With the aforesaid findings and observations the application stands disposed of.
9. Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocates appearing for the parties expeditiously.
Pratap Kumar Ray, J.