Patna High Court
Anisur Rahman And Ors. vs Sheikh Abul Hayat on 30 January, 1965
Equivalent citations: AIR1965PAT390, AIR 1965 PATNA 390, ILR 45 PAT 804 1965 BLJR 509, 1965 BLJR 509
JUDGMENT Narasimham, C.J.
1. This is an appeal from the judgment of a Single Judge of this Court reversing the concurrent decisions of the two lower courts and dismissing the appellants' (plaintiffs') suit for declaration of title and recovery of possession of certain property which has been claimed to be waqf property. The following genealogical tree will be helpful in appreciating the case of the parties:
Waris Ali | Abdul Rahman = Most. Hazra | _____________________________ | | Ataur Rahman Fazlur Rahman (dead) = Bibi Kulsum ______________________________ | | | Anisul Rahman Nasir Ahmad Sultan Ahmad
2. The waqf was founded by Saiyid Waris Ali by a deed of waqf dated the 20th August, 1920, dedicating the disputed property as a burial ground for the members of his family and for other charitable purposes. He constituted himself as the first Mutwalli and further directed that after his death his grandsons Ataur Rahman and Fazlur Rahman, or either of them who survived the other, should be the Mutwalli, and after their death it will devolve on the members of the family from generation to generation in the male line. He further stipulated in the waqi deed that the Mutwalli for the time being shall have no right either to sell, mortgage or encumber the property. Warts Ali died about 34 years ago. Fazlur Rahman died sometime in 1925 leaving no male issue and Ataur Rahman died sometime in December, 1953. The plaintiffs alleged that they therefore became the Mutwallis in respect of the waqf property. On the 10th September, 1935, Abdul Rahman, his son Atam Rahman and the latter's wife Bibi Kulsum conveyed the property by a sale deed in favour of one Khalilur Rahman, the father of the respondent (defendant) Sheikh Abui Hayat, and also put him in possession of the same. The plaintiffs alleged that the deed of conveyance of the waqf property was void and that consequently they were entitled to acquire possession of the same from the alienee and his successors in interest.
3. The main question in controversy was as regards limitation. As admittedly defendant No. 1 and his father were in possession of the property from the date of the sale dead, namely, 10th September, 1935, the suit would be barred by limitation if the starting point would be the date of delivery of possession, namely, the 10th September, 1935. If, on the other hand, it is held that adverse possession as against the Mutwallis would start only after the death of Ataur Rahman in 1953, the suit would be in time. It was contended on behalf of the appellants that the correct Article to apply would be Article 134B of the Limitation Act of 1908, corresponding to Article 96 of the new Limitation Act. On the other hand, the contesting defendant-respondent contended that as the alienation was void ab initio the possession of the alienee became adverse from the date of the alienation and that he has acquired his title by twelve years adverse possession by virtue of Article 144 of the Limitation Act, 1908. The learned Single Judge accepted this contention and hence dismissed the suit.
4. Before discussing the aforesaid question of law I may refer to previous litigation between the parties in respect of the same property. Sometime in 1943 Musammat Bibi Hajra, wife of Abdul Rahman on behalf of her minor grandsons, namely, Anisul Rahman, Naisar Ahmad and Sultan Ahmad (plaintiffs in this litigation) filed a suit in the Court of the Munsif of Arrah against the alienee, impleading her own son Ataur Rahman as a second defendant, and sought for a declaration that the disputed property was Waqt property and also claimed delivery of possession after dispossession of defendant No. 1. The litigation was fought up to the High Court (Second Appeal No. 251 of 1945) and a Division Bench of this Court held that the disputed property was Waqf property, but they dismissed the suit on the ground that during the lifetime of the Mutwalli, namely, Ataur Rahman, the plaintiffs in that suit had no right to obtain actual possession because their right to Mutwalliship itself was a contingent one. This decision, therefore, concludes the main question which was then in controversy, namely, whether the disputed property was a waqf property and whether the waqf deed executed by Saiyid Waris Ali on the 20th August, 1920, was a genuine document which was carried into effect, It does not decide any other matter. The question as to whether the alienation of 1935 was void ab initio or else it was voidable at the instance of the Mutwalli for the time being was not fully discussed. Similarly, the further question as to whether in a suit for recovery of possession by the Mutwalli the starting point for limitation would be the date of the alienation and possession by the alienee, namely, 1935, or the date on which the previous Mutwalli (who alienated the property) died, as provided in Article 134B, was not agitated or decided. Hence that decision cannot operate as res judicata so far as the main question in controversy in this litigation is concerned.
5. A careful scrutiny of the deed of alienation shows that the alienor did not purport to alienate waqf property Nowhere in the document is there a recital to the effect that the property is waqf property or else that the alienor was only a Mutwalli with limited rights over the same. On the other hand, the three executants of the document, namely, Abdul Rahman, Ataur Rahman and Bibi Kulsum, purported to convey the property which was their own. I Hence, in view of the decision that it is a waqf property, it must be held that the alienation was void ab initio because no Mutwalli can treat the waqf property as his own property and sell it to a third party in direct contravention of the terms of the waqf deed. On the question of limitation the leading decision is that of Mukherjea, J., (as he then was) in the well known Calcutta case, Srimati Hemanta Kumari Bose v. Sree Sree Iswar Sridhar Jiu, AIR 1946 Cal 473. To quote his own observations at p 476:
"In the second place even if the subject-matter of transfer is only particular item or items of endowed property the question whether the transaction is void or voidable would depend upon the fact whether the shebait or the manager purported to transfer the same in his capacity as manager or in his own individual capacity us the secular owner of the propem. A Shebait or manager has the right to alienate portions of endowed property for purposes of legal necessity.....But if the manager transfers the property belonging to the deity as his own property asserting his own personal interest in the same, his act itself is adverse to the trust. The transferee in such cases svould acquire no title to the property, and his possession would be unlawful from the beginning."
Following these observations it was held that the starting point of adverse possession would be the date of actual possession by the alienee on the basis of the invalid document and not the date on which the alienating trustee died. It is true that the said decision related to an alienation made prior to the amendment made to the Limitation Act, 1908, in 1929 by the insertion of Articles 134A, 134B and 134C. Mr. Hussain, therefore, contended that the principle of that decision should not be applied here and that Article 134B should in terms be held to apply.
6. In Mukherjea's well known book on Hindu Law of Religious and Charitable Trust, 2nd edition, as page 274, the said Calcutta decision was referred to and it was further pointed out at page 282 that limitation in case of an unauthorised alienation would start as soon as possession vested with regard to any property. To quote his own words at page 282:
"The correct principle deducible from these cases is that the possession of the alienee would become adverse as soon as he is without any title to the property. If the transfer is void ab initio, the possession of the transferee is adverse from the date of the transfer. If, on the other hand, it is not void, but voidable merely at the instance of the succeeding manager, the possession cannot be adverse until the office of the transferring manager ceases."
In other words, the applicability of either Article 144 or Article 134B of the Limitation Act would depend on whether the transfer was void ab initio or only voidable at the instance of the succeeding manager.
7. A transfer which is void ab initio is in the eye of law no transfer at an And hence will not come within the scope of Article 134B. Moreover, that Article refers to transfer made by a manager of an endowment. If a person transfers property treating it as his own private property, it is difficult to hold that merely because he happens to be the manager of the endowment on the date of the transfer and the property is the property of the endowment such transfer should come within the scope of that Article. Mr. Hussain for the appellants could not cite any decision after AIR 1946 Cal 473 in support of his extreme contention to the effect that the principle laid down in that decision has no application in respect of void transfers made after the coming into force of the amendment of 1929. On the other hand, a Division Bench of the Orissa High Court in Govinda Jiew Thakur v. Surendra Jena, AIR 1961 Orissa 102 applied the principle of that decision and held that transfers void ab initio are outside the scope of Article 134B; a transferee in such a case is a mere trespasser and his title will be perfected by the twelve years adverse possession. With respect I am inclined to agree with this view. There is also a Madras decision in V. Rajaram v. Ramanujam Iyengar, AIR 1963 Mad 213 paragraphs 4 and 5 to the same effect.
8. My attention was, however, invited to a decision of a Single Judge of the Calcutta High Court in Sanat Kumar Mitra v. Hem Chandra Dey, AIR 1961 Cal 411 at p. 420 where the learned Judge held that even void transfers would be covered by Article 134A and that the phrase "to set aside a transfer of immoveable properties" must be given a very generous meaning to cover not only cases of voidable transactions but to void transactions as well effected by the manager of endowed property having no title to the same. But the learned Judge himself pointed out that the alternative view of giving a restricted meaning to that phrase was also one of the possible views. That case could however, be distinguished on the ground that there the transfer lease. was executed by persons who "purported to act as executors and trustees of the endowed property". Here, however, as already pointed out, the transferors did not purport to act as Mutwallis of the waqf property. Apart from this distinction, I would, with respect, prefer the Orissa view, which again is based on the main principles enunciated in AIR 1946 Cal 473.
9. It was, however, contended that if this restricted view be taken, endowed properties may be tost to the endowment because a trustee for the time being may make void transfers and then take no steps whatsoever to obtain possession of the property on behalf of the endowment during his lifetime, thereby allowing the prescribed period of twelve years to elapse, and allow the transferee to perfect his title. But this difficulty has to be faced even in the case of rank trespassers who obtain possession of the trust property by force or otherwise and against whom the trustee does not take action during his lifetime. Moreover, even in the cases mentioned above, it is open to the other persons interested in the trust to take appropriate steps for the removal of the trustee for having committed breach of trust and also to obtain a declaration to the effect that the transfer was null and void and was not binding on the endowment and to recover possession of the alienated property for the endowment (see the decisions cited in Thangachi Nachial v. Ahmed Hussain Malumiar, AIR 1957 Mad 194 paragraphs 7 and 8)
10. For these reasons I would affirm the judgment of the learned Single Judge of this Court and dismiss the appeal with costs.
G. N. Prasad, J.
11. I agree.