Muslim can also create English trust: SC

New Delhi, Dec 24 (UNI) In a significant ruling, the Supreme Court has ruled that there is no bar to a Muslim creating a simple trust and it is not always necessary to create a Waqf while the settlement of his properties.

A Bench comprising Justices A R Lakshmanan and Altamas Kabir, while dismissing the appeals of one Mohammed Khasim and others against the Karnataka High Court judgement dated October 5, 1998, agreed with the observations of the Madras High Court holding that a Muslim can endow properties to charities either by creating a waqf or by endowing property conforming to the law of trusts.

The case related to the properties of one Mohammed Imam Saheb, who owned considerable properties in Bangalore and had nine children from his three wives.

Imam executed a Deed of Release on February 29, 1960 in respect of various movable and immovable properties which was referred to as Hiba. Imam Saheb would be the trustee-in-management along with his second wife Hafiza Bi. Imam, however, kept with him exclusive rights to alienate the present and the future trust properties. He did not give the right of alienation of the trust properties to anybody else and also said in his deed that properties to be purchased in future would also form a part of the trust.

He also made provision for some charitable works recognised by Islam to have religious connotations.

After the death of Imam in 1969 , his son Mohd Dastgir and his first wife filed a suit for partition which was contested by some of the defendants on the grounds that since the deed of trust amounted to creating a waqf and the only beneficiary of the waqf property is 'Allah', the same cannot be partitioned.

Mohd Dastgir through a release deed dated August 18, 1958 had surrendered his rights in favour of his father stating all properties, including cloth shop, belonged to his father.

The trial court ordered partition of the secular properties but high court in appeal ruled that the deed of trust created neither a Waqf-al-al-Aulad nor a trust.

The apex court in its judgement dated December 15, however, ruled that it agreed with the high court to the extent that no valid Waqf had been created but did not agree with the second finding that no valid trust was created either.

The top court while setting aside both the decree of the trial court and the judgement of the high court held, ''The trust deed also makes it clear that all properties acquired in future must be considered a part of the trust properties and hence, trial court erred in holding that except for the properties mentioned in the trust deed, the other properties of Mohd Imam Saheb were secular in nature.'' UNI AKS/SC MS HS1139