Madras High Court
N.Mohammed Younus Sait vs S.Sampathraj (Since Deceased) on 4 June, 2020
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 05.02.2020
PRONOUNCED ON : 04.06.2020
CORAM :
THE HONOURABLE MR.JUSTICE RMT. TEEKAA RAMAN
C.R.P. (NPD) No.3258 of 2013
N.Mohammed Younus Sait ... Petitioner/Respondent/
Petitioner-Landlord
-vs-
S.Sampathraj (since deceased)
S.Praveen ... Respondent/Appellant/
Respondent-Tenant
PRAYER: Civil Revision Petition is filed under Section 25(1) of the
Tamilnadu Building (Lease and Rent control) Act, 1960, against the fair and
decreetal order dated 17.07.2012 passed in R.C.A.No.2 of 2010 on the file
of the Subordinate Judge and Rent Control Appellate Authority of The
Nilgiris at Uthagamandalam, reversing the fair and final order dated
23.12.2009 passed in R.C.O.P.No.65 of 2004 on the file of the Rent
Controller, Uthagamandalam.
http://www.judis.nic.in
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For Petitioner : Mr.T.R.Rajagopalan
Senior Counsel
for Mr.C.V.Vijayakumar
For Respondent : Mr.K.Ramu
ORDER
The Landlord is the revision petitioner herein.
2.For the sake of convenience, the parties are referred to as petitioner/landlord and respondent/tenant.
3.The petitioner/landlord herein filed the above R.C.O.P No.65 of 2004 before the learned Rent Controller, Uthagamandalam, under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, for fixation of fair rent.
4.The brief averments in the petition in R.C.O.P No.65 of 2004 reads as follows:-
The petitioner is the landlord and the respondent is the tenant in http://www.judis.nic.in 3 respect of the non-residential premises bearing Door No.73 (New Door No.101) and forming part of the building known as Adams Buildings, Commercial Road, Ootacamund, on a monthly rent of Rs.1,850/-. The petition premises has two floors. The ground floor has plinth area of 860 sq.ft. The first floor has a plinth area of 360 sq.ft abutting the commercial Road. The petition premises is situated in the heart of Ootacamund Town and in the most prominent business locality namely Commercial Road. The present market value of the land in R.S.No.1764/2, in which, the petition premises situated is Rs.15,00,000/- per cent. The premises has electricity and other amenities. The monthly rent of Rs.1,850/- paid by the respondent very meagre and low.
5.The counter statement filed by the respondent/tenant in R.C.O.P No.65 of 2004 reads as follows:-
(i)The respondent is the tenant under “Adam Mohameed waqf Trust” in the petition premises from the year 1977 and originally, the above trust had entered the agreement with the petitioner. The respondent initially was paying a sum of Rs.600/- as monthly rent for premises bearing Door http://www.judis.nic.in 4 No.101 and 102. The respondent has never defaulted in paying the monthly rent. During the year 1988, the premises bearing Door No.101 and 102 were divided among Abdul Rahim Sait, the petitioner and N.Mohammed Younus Sait, his brother and on oral instruction from Abdul Rahim Sait, the petitioner and the respondent started paying the monthly rent to the petitioner and his brother separately. The rent paid before the partition among the brothers was Rs.650/- per month and subsequent to the petition in May 1988, the respondent has paid Rs.500/- for each divided portion amounting to Rs.1,000/- per month. The rent was periodically enhanced and in January 1997, it was again enhanced to Rs.1,850/- and the respondent is paying the above rent without default. The petition premises belongs to Adam Mohammed waqf Trust and the petitioner is the beneficiary of the Trust.
(ii) The premises has basement floor only facing the Agraharam, which is a residential area. There is no water facility or drainage facility in the petition premises. The petition premises dilapidated condition. The respondent has pasted expensive granite tiles on the existing wooden http://www.judis.nic.in 5 flooring and also spent considerable amount for electrical works. The down floor does not have any ventilation and passage for light and does not have any parking space. The petitioner, who is the beneficiary under the Trust cannot claim such an exorbitant rent. The rent being paid now, is the fair rent for the old premises. The rent fixed as per agreement between the landlord and tenant, is valid.
6.Before the learned Rent Controller of Uthagamandalam, the landlord herein has examined himself as P.W.1 and Ex.P.1 and Ex.P.2 were marked. The son of the tenant has been examined as RW.1 and Ex.R1 to Ex.R7 were marked. Before the learned Rent Controller of Uthagamandalam, the landlord has taken commission to make local inspection of schedule premises with the assistance of Engineer and the Commissioner has measured the property with the assistance of Engineer and filed his report and plan. The Commissioner has been examined as C.W.1 and the Commissioner's report, plan, valuation certificate were marked as Ex.C.1 to C.4.
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7.On consideration of oral and documentary evidence, the learned Rent Controller has allowed the petition in R.C.O.P.No.65 of 2004 and fixed the fair rent at Rs.18,555/- per month from the date of petition.
8.Aggrieved against the said fair and decreetal order, the tenant has preferred R.C.A.No.2 of 2010, before the learned Subordinate Judge and Rent Control Appellate Authority of The Nilgiris at Uthagamandalam. The Rent Control Appellate Authority, by an order dated 17.07.2012, has allowed the appeal holding that the rent control proceedings are not maintainable and accordingly, dismissed the R.C.O.P. Hence, the civil revision petition filed by the landlord.
9.Heard Mr.T.R.Rajagopal, learned Senior Counsel for the petitioner/Landloard assisted by Mr.C.V.Vijayakumar, learned counsel, had placed reliance on the decisions reported in (1979) 1 MLJ 189 in the case of The Tamil Nadu wakf Board Vs M.Ebrahim Musuee Muthavalli, Bayan Bai's wakf and others; (2011) 2 MLJ 181 in the case of H.Nayeemullah Vs. Madras-E- Nusrathul Islam and New Mosque and 2006 (2) CTC 433 http://www.judis.nic.in 7 in the case of Sakthi & Co., through its Partner, Veeranan Vs. Shree Desigachary and Mr.K.Ramu and the learned counsel for the respondent/tenant made submissions in support of the order of Appellate Authority.
10.After hearing the rival submissions and perusal of the document filed before the Rent Controller, Ex.P1 is the deed of gift executed by one Adam John Mohammed Sait, the settler and with his first cousin Abdul Hamid Sait. Ex.P2 is the deed of family arrangement and partition between the cousin. Both the documents were admitted by both the parties.
11.On careful perusal of Ex.P1 and Ex.P2, Ex.P1, trust deed dated 07.08.1946, it is seen that one Adam Jan Mohammed sait has settled the schedule premises and other immovable properties to waqf trust for the benefit of beneficiaries. The said settler or founder of trust as described the several names of beneficiaries. In page No.2 to 9 in 6th sheet of Ex.P.1, the following recitals relating to utilization of trust property and it is extracted http://www.judis.nic.in 8 hereunder:-
under clauses 2 to 10 above are extinct then the said net proceeds shall be paid to the jumma Musjid situated in Lower Bazaar Road, (opposite to the Race Course) Ootacamund which Musjid is now under the control and management of the Cutchimenon Community of Ootacamund to be utilised for the maintenance of the said Musjid and for such other religious and charitable purposes as are connected with and carried under the auspicious of the said Musjid. After the demise of the said Adam Jan Mohammed Sait (Trustee aforesaid) the office of the Muthavalli trustee in respect of the Trust premises shall devolve upon the following persons in the order set forth below.
12.On careful perusal of recitals in 6th sheet of Ex.P1 referred above would reveal that the settler has intended to settle the income of trust property in favour of descendants, whose names are described in sheet 2 to 5 and in case of death of descendants, the settler intended to give the trust property to Jumma Musjid situated in Lower Bazaar Road, Udhagamandalam. Therefore, the intention of settler referred above would reveal that he has settled the properties and dedicated the properties for the benefit of his descendants, who are more than 50 in numbers and their legal heirs and in case of death of all of said heirs, the settler has intended to give the property to Jumma Musjid situated in Lower Bazaar Road, Uthagamandalam.
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13.With the above terms of Ex.P1 and Ex.P2 documents, the provisions of the deed make it absolutely clear that the usufructs from the endowed properties should be utilized for the benefit of the person, who created the waqf and the members of his family, and so long as any member of the family continues to survive, no part of the income should be spent for any other purpose and it is only when the entire lineal descendants become extinct, there is a provision for spending the money for the Jumma Musjid. In other words, the nature of the endowment in question was that which is generally under the Mohammedan Law known as waqf-alal-aulad or a private waqf. The waqf is alive.
14.The waqf Act, 1954 (Central Act XXIX of 1954 hereinafter referred to as the Act) was enacted by the Parliament and under that enactment a survey of waqfs in each State was conducted and waqf Boards in States were constituted. It is not in dispute that the properties belonging to the endowment in question were held as waqf properties. http://www.judis.nic.in 10
15.The Act was enacted by Parliament to provide for a better administration and supervision of waqfs. Section 3 defines certain expressions and the most important of which is the expression 'waqf' itself. Sub Clause (iv) of Clause (r) of Section 3 defines that expression as follows:-
"Waqf' means the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes:
(i) a waqf by user;
(ii) grants (including mashrut-ul-khidmat) for any purpose recognised by the Muslim law as pious, religious or charitable; and
(iii) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable;
and 'waqf' means any person making such dedication".
16.The sole question is whether the endowment created by the Adam Jan Mohammed Sait in the present case on 07.08.1946 would constitute a waqf as defined under Section 3(r) of the Act or not. The whole http://www.judis.nic.in 11 thing depends upon the meaning of the expressions occurring in Section 3(1)(iii) because that alone deals with the case of waqf-alal-aulad.
17. From the use of the expression "to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable” the Legislature contemplates that for a waqf-alal- aulad to be a waqf under the Act; there must be a dedication for any purpose recognised by Muslim Law as pious, religious or charitable. That assumes that the purpose of a waqf-alal-aulad simpliciter will not be considered to be a purpose recognised by the Muslim law as pious, religious or charitable. We have already referred to the fact that this is purely a waqf-alal-aulad in the sense that “in praesenti” there is no dedication whatever of any part of the property or income for any purpose other than to support the waqf, the members of her family and the descendants. In fact, so long as some descendants of the waqf are alive, the property will be for the benefit of such descendants only and only when the entire line becomes extinct, the income from the property will be utilised for the benefit of the said Mosque. Whoever may be the ultimate beneficiary, in praesenti as far as the present http://www.judis.nic.in 12 waqf is concerned, nothing is dedicated for any purpose recognised by Muslim law as pious, religious or charitable.
18.In this particular case, it is seen that there is no dispute that under the terms of the waqf deed, there is no provision for distributing any part of the income “in praesenti” to any person other than the members of the family, and benefit for Mosque come in only in the event of the entire line in the family becoming extinct and so long as a single member of the family is alive, there is no chance of any poor person coming and taking the benefit under the waqf deed, and therefore the present waqf is a waqf-alal- aulad simpliciter only.
19.It is to be stated that under the Muslim law as explained and practised by the Prophet and his followers, a waqf may be created for the benefit of any person or class of person. or for any object of piety or charity and it may even be for children that are unborn, and if the person or object in whose favour it is created is not in existence at the time of the creation of the trust, it will be applied for the poor who are the ultimate recipients of all waqfs, unless there are other objects named in the waqf itself. The ultimate http://www.judis.nic.in 13 provision for 'poor' is for the purpose of importing an element of permanency to the waqf so that it will not fail under any circumstances; there will always be poor people so it was thought and the provision for the poor is not the only basis for sustaining the validity of a waqf as having been created for a pious, religious or charitable purpose. The concept of piety and charity according to the Mussulman Law is very wide in its amplitude, connotation and sweep and it is this connotation that had been the basis of the creation of waqfs in the early Islamic history.
20. According to Islamic Tradition, "The Prophet of God declared that a pious offering to one's family (to provide against their falling into want) is more pious than giving alms to beggars. The most excellent of sadakah is that which a man bestows upon his family." Therefore, the provision in the waqf for the maintenance of the family and relations of the waqf was itself considered to be a pious and charitable object under the Muslim Law, and only under the Hanafi School of Law, the waqf, the settler himself, can participate in the benefit accruing from the waqf. Therefore as far as the Muslim Law is concerned, there was absolutely nothing against a waqf http://www.judis.nic.in 14 being created exclusively for the benefit of the waqf, the members of his family and descendants because that itself was considered to be a pious and charitable act under the Muslim Law.
21.Based upon the above discussion and in view of unequivocal terms of Ex.P1 and Ex.P2, this Court holds that Ex.P1 and Ex.P2 are the private waqf of the petitioner. In the decision referred to (2011) 1 LW 147 in the case of H.Nayeemullah Vs. Madras-E-Nusrathul Islam and New Mosque, this Court has held that as per the judgment reported in V.Natarajan Vs. Saliyur Mahajana Sangam, the exemption is granted in favour of the landlord and he is entitled to waive the exemption and therefore, it cannot be stated that as per the provisions of Section 29 of the Act, as well as G.O.Ms.No.2000, Home Department, dated 16.08.2006, the waqf is exempted and therefore, the petition is not maintainable.
22.Accordingly, relying upon the above decision of the High Court, I am of the considered view that the property, which is a subject matter of this civil revision petition, belongs to private waqf and RCOP is http://www.judis.nic.in 15 maintainable. In view of the action exercised by the petitioner, a contra finding rendered by the Rent Control Appellate Authority is liable to be vacated. Accordingly, the same stands vacated.
23.On perusal of the Advocate Commissioner report filed in I.A.No.123 of 2004 in R.C.O.P No.65 of 2004 and objection therefor, this Court finds that the said property is a non residential property situated in the commercial road. While the upper portion of the building is facing the commercial road, the lower portion of the building is facing the Agraharam street, which seems to be a significant one.
24.In the decision laid down in the case of Sakthi & Co., through its partner, Veeranan v. Shree Desigachary reported in 2006 (2) CTC 433 (Full Bench), it is held as follows:-
“Revenue Department maintained Basic Valuation Register on basis of notification issued under Section 47-A of Stamp Act – Guideline mentioned therein is meant for collection of revenue and stamp duty and it cannot be basis for http://www.judis.nic.in 16 determination of market value- Guideline value is fixed for locality and not for particular survey number.”
25.After going through the calculation made by the Rent Controller, I find that the fair rent fixed by the Rent Controller is just and proper and the procedure adopted by the Rent Controller does not warrant any interference. Accordingly, this Civil Revision Petition is allowed and the order passed in R.C.A.No.2 of 2010, on the file of the Subordinate Judge and Rent Control Appellate Authority of The Nilgiris at Uthagamandalam, dated 17.07.2012, is set aside and the order passed in R.C.O.P.No.65 of 2004 on the file of the Rent Controller, Uthagamandalam, is restored. No costs.
04.06.2020 Index: Yes / No Internet: Yes / No cp To
1.The Subordinate Judge and Rent Control Appellate Authority, Uthagamandalam, Nilgiris District.
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2.The Rent Controller, Uthagamandalam.
3.The Section Officer, Vernacular Records, Madras High Court, Madras.
http://www.judis.nic.in 18 RMT. TEEKAA RAMAN, J.
cp Pre-Delivery Order made in C.R.P. (NPD) No.3258 of 2013 04.06.2020 http://www.judis.nic.in