- (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 whereby and whereunder her prayer to increase beneficiary allowance as was allowed to the extent of Rs. 5000/- 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 lis 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.;