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TMI Blog1982 (7) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... eclaration in a deed dated 30-9-1965 confirming the earlier oral declaration. An application was also made on 27-12-1975 to the Wakf Board under section 25 of the Wakf Act for registration and it appears that after due enquiry under section 27 of the Wakf Act, the Wakf Board issued the necessary notification on 23-11-1977 in the Tamil Nadu Government's Gazette. It is stated before us that the department has accepted the assessee's claim for exclusion of the income derived from the property, for the period subsequent to the Gazette notification, but not for the years under appeal, which cover the period before the date of notification. It is the submission of the assessee's learned counsel before us that for valid creation of a wakf there ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollow, therefore, that there was no declaration of the wakf in respect of the property in 1947 and, consequently, the wakf in this case could be said to have been declared only by the instrument in writing in 1965. Since the assessee has chosen to reduce in writing the declaration of wakf by this instrument, which must be held to purport to convey the property to wakf, it is argued that the provisions of the Transfer of Property Act will come into play, and unless it is registered, it would not be valid. It is further argued that according to article 189 in Principles of Mohammaden Law by Mulla (17th edition) if immovable property of the value of Rs. 100 or above is purported to be conveyed to a wakf, it requires registration under the Regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsisting of lands and tannery buildings, and conveying the properties to the wakf, thirdly, whether the deed of wakf dated 30-9-1965 requires registration under the Indian Registration Act and in the absence of registration, it cannot be said that the property has been conveyed to the wakf and lastly, whether even if the registration of the deed of wakf under the Registration Act is not necessary and the registration of the wakf under the Wakf Act is sufficient, the wakf would take effect only from the date of notification of the registration and not earlier. 4. In Wakf Laws and Administration in India by S. Athar Husain and S. Khalid Rashid, 2nd edition, published by Eastern Book Co., 34, Lalbagh, Lucknow, it is stated in Chapter X that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up the wakf deed dated 30-9-1965. Hence there is (no) wakf deed or declaration in my possession to prove the wakf created in 1947." Now, this reply has to be read in the context of the averments in the wakf deed itself and we consider it necessary to reproduce the material recitals therefrom : "WHEREAS with the object of attaining 'Kurbat' or nearmosa in the next world I had already dedicated in perpetuity in January 1947 and made a wakf of the income of the scheduled property in accordance with the tenets of Islam for maintenance and educational support of my sons and their descendants from generation to generation and ultimately for such religious, pious, and charitable purposes as are hereinafter mentioned ; AND WHEREAS I am shortl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was not done by him in 1947. This is apparent from his statement that the intended wakf was not completed and finalised. The further statement in the reply clearly shows that all that he said was that there was no deed or any declaration in writing to prove the creation of the wakf in 1947. Another point made by the Commissioner in his order in this connection to disbelieve the claim of the assessee that the wakf was created in 1947 is that one of the beneficiaries Shri Jalal Shoaibur Rahman, as per the deed dated 30-9-1965, was not born when the wakf was created in 1947 and, therefore, evidently there could not be a wakf whereunder Jalal Shoaibur Rahman is a beneficiary. The inference, according to us, proceeds from misconception or misu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, a wakf deed of immovable property of Rs. 100 or upwards would require registration." This observation does not, in our reading, show that when the terms of the wakf deed are reduced to writing, the wakf itself should be held to be created by the deed. All that it says is that where there is a deed setting out the terms of the wakf reduced in writing, no other evidence can be adduced to prove the terms of the wakf except the deed itself or secondary evidence of its contents when it is admissible. In other words, only the document itself can be relied on or produced in evidence or prove the terms and not any other material or evidence. A wakf deed would require registration under the Indian Registration Act if it purports to convey or tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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