Karnataka High Court
Sri Ramesh vs The Karnataka State Board Of Wakf on 24 September, 2019
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRP No.470 OF 2017
C/W
CRP Nos.471, 472, 473, 474, 475, 476 & 477 OF 2017
In CRP 470/2017
BETWEEN
Sri. Ramesh,
S/o. Late R.Shamanna,
Aged about 43 years,
R/at No.4, 23rd Main,
R.Shamanna Road,
V Phase, J.P.Nagar,
Bengaluru-560078.
...Petitioner
(By Sri. R.A.Devanand, Advocate)
AND
The Karnataka State Board of Wakf
Darul Awakf, No.6, Cunningham Road,
Bengaluru-560052, Rep. by its
Chief Executive Officer or any other
Authorized Representative.
...Respondent
(By Sri. D.L.N.Rao, Sr. Advocate a/w
Smt. S.R.Anuradha, Advocate)
This CRP is filed under Section 83(9) of Wakf Act
against the judgment dated 19.04.2013 passed in
O.S.No.9/2009 on the file of the XXXI Additional City Civil
2
Judge, holding concurrent charge of Presiding Officer,
Karnataka Wakf Tribunal, Bengaluru Division, Bengaluru,
dismissing the suit filed under Order 7 Rule 1 of CPC read
with Section 7 and 83 of Wakf Act, 1995.
In CRP 471/2017
BETWEEN
Sri. D.Prithviraj
S/o. Late Dharmappa,
R/at No.690/4, 14th Main,
J.P.Nagar, 2nd Phase,
Bengaluru-560078.
...Petitioner
(By Sri. R.A.Devanand, Advocate)
AND
The Karnataka State Board of Wakf
Darul Awakf, No.6, Cunningham Road,
Bengaluru-560052, Rep. by its
Chief Executive Officer or any other
Authorized Representative.
...Respondent
(By Sri. D.L.N.Rao, Sr. Advocate a/w
Smt. S.R.Anuradha, Advocate)
This CRP is filed under Section 115 of CPC against the
judgment and decree dated 19.04.2013 passed in
O.S.No.8/2009 on the file of the XXXI Additional City Civil
Judge, holding current charge of Presiding Officer,
Karnataka Wakf Tribunal, Bengaluru Division, Bengaluru,
dismissing the suit filed under Order 7 Rule 1 of CPC read
with Sections 7 and 83 of the Wakf Act, 1995 for declaration
and prohibitory injunction.
3
In CRP 472/2017
BETWEEN
Sri. H.Narayana Swamy,
S/o. Late Hanumaiah,
Aged about 52 years,
R/at Kunchigarapalya Village,
Toralu Post, Bengaluru South,
Bengaluru-560082.
...Petitioner
(By Sri. R.A.Devanand, Advocate)
AND
The Karnataka State Board of Wakf
Darul Awakf, No.6, Cunningham Road,
Bengaluru-560052, Rep. by its
Chief Executive Officer or any other
Authorized Representative.
...Respondent
(By Sri. D.L.N.Rao, Sr. Advocate a/w
Smt. S.R.Anuradha, Advocate)
This CRP is filed under Section 83(9) of Wakf Act,
against the judgment and decree dated 19.04.2013 passed in
O.S.No.6/2009 on the file of the XXXI Additional City Civil
Judge, holding concurrent charge of Presiding Officer,
Karnataka Wakf Tribunal, Bengaluru Division, Bengaluru,
dismissing the suit filed under Order 7 Rule 1 of CPC read
with Section 7 and 83 of Wakf Act, 1995 for prohibitory
injunction & declaration.
In CRP 473/2017
BETWEEN
Sri. Basavaraj Meti,
S/o. Rayappa Meti,
Aged about 51 years,
4
R/at Inchalahalli Village,
Lingsur Taluk,
Raichur-584122.
...Petitioner
(By Sri. R.A.Devanand, Advocate)
AND
The Karnataka State Board of Wakf
Darul Awakf, No.6, Cunningham Road,
Bengaluru-560052, Rep. by its
Chief Executive Officer or any other
Authorized Representative.
...Respondent
(By Sri. D.L.N.Rao, Sr. Advocate a/w
Smt. S.R.Anuradha, Advocate)
This CRP is filed under Section 115 of CPC against the
judgment and decree dated 19.04.2013 passed in
O.S.No.10/2009 on the file of the XXXI Additional City Civil
Judge, holding current charge of Presiding Officer,
Karnataka Wakf Tribunal, Bengaluru Division, Bengaluru,
dismissing the suit filed under Order 7 Rule 1 of CPC read
with Sections 7 and 83 of the Wakf Act, 1995 for declaration
and prohibitory injunction.
In CRP 474/2017
BETWEEN
Sri. N.M.Jagadish,
S/o. Late L.N.Narayana Gowda,
Aged about 38 years,
R/at Nagarakere Village,
Maddur Taluk,
Mandya District-571401.
...Petitioner
(By Sri. R.A.Devanand, Advocate)
5
AND
The Karnataka State Board of Wakf
Darul Awakf, No.6, Cunningham Road,
Bengaluru-560052, Rep. by its
Chief Executive Officer or any other
Authorized Representative.
...Respondent
(By Sri. D.L.N.Rao, Sr. Advocate a/w
Smt. S.R.Anuradha, Advocate)
This CRP is filed under Section 115 of CPC against the
judgment and decree dated 19.04.2013 passed in
O.S.No.5/2009 on the file of the XXXI Additional City Civil
Judge, holding concurrent charge of Presiding Officer,
Karnataka Wakf Tribunal, Bengaluru Division, Bengaluru,
dismissing the suit filed under Order 7 Rule 1 of CPC, read
with Sections 7 and 83 of the Wakf Act, 1995 suit for
declaration and permanent injunction.
In CRP 475/2017
BETWEEN
Sri. R.Babu Reddy,
S/o. Raghurama Reddy,
Aged about 43 years,
R/at No.690/4, 14th Main,
J.P.Nagar, II Phase,
Bengaluru-560078.
...Petitioner
(By Sri. R.A.Devanand, Advocate)
AND
The Karnataka State Board of Wakf,
Darul Awakf, No.6, Cunningham Road,
Bengaluru-560052, Rep. by its
Chief Executive Officer or any other
Authorized Representative. ...Respondent
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(By Sri. D.L.N.Rao, Sr. Advocate a/w
Smt. S.R.Anuradha, Advocate)
This CRP is filed under Section 115 of CPC against the
judgment and decree dated 19.04.2013 passed in
O.S.No.7/2009 on the file of the XXXI Additional City Civil
Judge, holding concurrent charge of Presiding Officer,
Karnataka Wakf Tribunal, Bengaluru Division, Bengaluru,
dismissing the suit for declaration and permanent
injunction.
In CRP 476/2017
BETWEEN
Sri. H.Lakshminarayana,
S/o. Sri. Hanumantha Reddy,
Aged about 45 years,
R/at No.278, 25th Cross,
6th Block, Jayanagar,
Bengaluru-560082.
...Petitioner
(By Sri. R.A.Devanand, Advocate)
AND
The Karnataka State Board of Wakf,
Darul Awakf, No.6, Cunningham Road,
Bengaluru-560052, Rep. by its
Chief Executive Officer or any other
Authorized Representative.
...Respondent
(By Sri. D.L.N.Rao, Sr. Advocate a/w
Smt. S.R.Anuradha, Advocate)
This CRP is filed under Section 83(9) of Wakf Act,
against the judgment and decree dated 19.04.2013 passed in
O.S.No.11/2009 on the file of the XXXI Additional City Civil
Sessions Judge, holding concurrent charge of Presiding
Officer, Karnataka Wakf Tribunal, Bengaluru Division,
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Bengaluru, dismissing the suit filed under Order 7 Rule 1 of
CPC read with Section 7 and 83 of Wakf Act, 1995 for
declaration and permanent injunction.
In CRP 477/2017
BETWEEN
The Karnataka State Board of Wakf
by its Chief Executive Officer
Darul Awakf, No.1, Cunningham Road,
Bengaluru-560052,
... Petitioner
(By Sri. D.L.N.Rao, Sr. Advocate a/w
Smt. S.R.Anuradha, Advocate)
AND
The Ramanagara District
Judicial Department Employees House
Building Co-operative Society Ltd.,
By is Secretary,
Ramanagar District-562159
... Respondent
(By Sri. R.A.Devanand, Advocate)
This CRP is filed under Section 115 of CPC against the
judgment and decree dated 21.09.2016 passed in
O.S.No.7/2014 on the file of the XXXI Additional City Civil
Judge and holding concurrent charge of Presiding Officer,
Karnataka Wakf Tribunal, Bengaluru Division, Bengaluru,
decreeing the suit for declaration.
These petitions having been heard and reserved on
24.7.2019, coming on for pronouncement this day, the Court
pronounced the following:
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ORDER
In all these revision petitions, common questions based on facts and law have arisen for decision and hence this common order. Given a brief background of the factual aspects, it is as under :-
2. The petitioners are the purchasers of different pieces of lands in various survey numbers of Jigenahalli and Hallimala Village, Kasaba Hobli, Ramanagara Taluk. One Adbul Sattar Saheb owned and possessed all these lands.
According to the petitioners, Abdul Sattar Saheb was a tenant in common in respect of certain extent of lands in Sy. Nos. 109. 114, 115 and 116 of Jigenahalli village and that he purchased adjoining lands in Sy. Nos. 111, 112 and 113 of Jigenahalli from Chikka Narasimhaiah Setty under a registered sale deed dated 15.5.1917. As he was pious and philanthropic, he executed a settlement deed on 5.9.1917 for providing community dinner or mass feeding to Muslim and Hindu travelers. He directed that the expenses for providing community dinner should be borne out of the income derived from aforesaid lands. The sons of Abdul Sattar Saheb 9 denied his authority to effect settlement as he was just a tenant in common and as the petitioners stated, the settlement was not acted upon. After the death of Abdul Sattar Saheb, his six sons succeeded to the properties. They formed a committee called 'The Sattariya Committee' for managing all the properties and to fulfill the desire of Abdul Sattar Saheb. The Sattariya Committee was not a wakf, it was just a private committee being managed by the legal heirs of Abdul Sattar Saheb. After the death of Abdul Sattar Saheb, there took place partition among five out of his six sons, and the other one relinquished his rights over the properties by executing a release deed on 8.6.1922. Some persons claiming to be occupants of the lands claimed occupancy rights. The sons of Abdul Sattar Saheb fought the litigations. In view of pendency of litigations, the lands remained barren; and they could not obtain revenue records transferred to their names, however the sons of Abdul Sattar Saheb continued the charities to fulfill his wishes. In course of time mutation was effected in the name of one of the grandsons of Abdul Sattar Saheb, namely Abdul Sattar @ 10 Amjad Pasha. Then the defendant Wakf Board challenged the mutation by filing an appeal before the Assistant Commissioner by contending that by virtue of notification dated 29.9.1965, the properties stood in the name of Sattariya Wakf Committee and thus the properties belonged to it. The petitioners stated that the Wakf Board could not lay claim on the properties as no notification had been issued to include the properties to wakf. Even if there was any inclusion, it was made without notifying the legal heirs of Abdul Sattar Saheb. Procedure as contemplated under Wakf Act was not followed. The gazette notification cannot be construed as effecting transfer of properties to the wakf and in fact the gazette notification was not at all acted upon, it was bad and the Wakf Board cannot claim private properties of the individuals as wakf properties.
3. It is stated that the sons of Abdul Sattar Saheb jointly sold the properties in favour of several persons and the petitioners claim to have purchased the property subsequently and thus they assert their right. The petitioners state that the officials of the defendant tried to 11 interfere with their possession and dispossess them. A legal notice was caused to be issued, the defendant did not reply, and again there was an attempt of interference on 14.12.2008. Therefore, the petitioners instituted suits before the Wakf Tribunal for a declaration that the gazette notification showing the properties as belonging to the wakf be declared as null and void and for permanent injunction. Later on the petitioners amended the plaint, deleted the declaratory relief as sought earlier and instead sought a declaration that schedule properties are not wakf properties.
4. The defendant board filed written statement contending that Abdul Sattar Saheb was not a tenant in common, rather he owned the properties exclusively having purchased the same under sale deed dated 15.5.1917. He executed a settlement deed dated 5.9.1917, and arranged for providing community dinner to Muslim and Hindu travelers. There was dedication of properties to wakf. Based on the settlement deed, a gazette notification was issued declaring the properties to be wakf properties. Since Abdul Sattar Saheb was the exclusive owner and there was a dedication 12 when he was alive, his sons did not succeed to the properties after his death, and they could not have partitioned also. Notification was issued after conducting survey. This notification was not challenged by them. A committee came into existence during the life time of Abdul Sattar Saheb. The said committee was not confined to family members of Abdul Sattar Saheb, and it was not a family wakf. Valid wakf was created and therefore the claim of the petitioners is unfounded.
5. Upon appreciation of evidence, the tribunal which decided the suits, O.S.No.5/2009 to O.S.No.11/2009 has recorded the reasons that whether an endorsement amounts to wakf or not has to be decided on the construction of the documents; what is important is its substance rather than its form. Under Muslim Law, wakf is unconditional, irrevocable and perpetual dedication of property to the Almighty. The ownership of founder gets extinguished and income from the property is used for the benefit of mankind. The tribunal has held that amendment brought to Wakf Act in the year 1954 widened the scope of definition of wakf to 13 include the dedication made by non-Muslims. The Wakf Act, 1995 applies to public and private wakfs. If the settlement deed made by Abdul Sattar Saheb provided for arranging community dinner to Hindu Travelers also, it cannot be said that it is opposed to Islamic Law. The dedication must be for pious or religious or charitable purposes recognized by Islamic Law.
5.1. It is further held that the evidence discloses that Abdul Sattar Saheb owned the properties and that by executing a registered settlement deed dated 5.9.1917 he created a wakf. Based on this settlement deed, the Wakf Board issued a Gazettee Notification on 07.06.1965. This notification has remained unchallenged. It became final and the properties have been used for religious purposes; wakf by user was created even though there was no express dedication. For this reason the sons of Abdul Sattar Saheb had no right to execute sale deeds in respect of those properties, and that the sale deeds that they executed are invalid and cannot be acted. The petitioners, therefore do not get right, title or interest.
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5.2. The learned Presiding Officer who decided O.S.No.7/2014 has taken the opposite view to allow the said suit.
6. The learned counsel for the petitioners, Sri Devanand, argued that the impugned judgments of the tribunal are as a result of total non-application of mind and incorrect approach to the material facts. He argued that the lands in question were not included in the gazette notification of the year 1965, but they were included by issuing a corrigendum issued in the year 2005. No survey was conducted before inclusion of the lands in the list of wakfs. The petitioners were not notified at all. The procedure prescribed under the Wakf Act was not followed. Finding of the tribunal that notification issued by the tribunal should have been challenged is erroneous. That notification was illegal and not required to be challenged.
6.1. It was his further argument that the settlement deed dated 5.9.1917 was secular in nature. He made arrangement for providing food to both Muslim and Hindu 15 travelers. It was just an arrangement. There was no dedication to the Almighty divesting of his interest in the property. For this reason, wakf was not created. There is no evidence that shows that Sattariya Committee is a public Wakf. Even if it is assumed for arguments sake that a wakf came into existence by virtue of dedication made by Abdul Sattar Saheb, it was only a private wakf. These circumstances clearly show that the sons of Abdul Sattar Saheb had every right to deal with properties and therefore the sale of properties by them was very much valid. He also argued that limitation period of one year prescribed under section 6 of the Wakf Act was not applicable to the person like petitioner. He has placed reliance on some of the reported judgments in support of argument and they will be referred to later.
7. Sri D.L.N.Rao, senior counsel appearing on behalf of the Wakf Board, argued that the suits filed by the purchasers were not maintainable as they had not sought declaration of their title. In view of section 6 of the Wakf Act, 1954, the descendants of the Wakiff lost any semblance of 16 right, title or interest in the properties for their failure to file suit within one year from date of notification under section 5(2) of the Wakf Act, 1954. The deed of settlement executed by Abdul Sattar Saheb was for religious, pious and charitable purposes. It was a permanent dedication. The settlement deed clearly shows that the descendants of Abdul Sattar Saheb had no right to encumber and their failure to continue the objects set out in the settlement deed would result in a Moulvi of Jamia Masjid taking over the management of the properties. These recitals in the settlement deed indicate that a Wakf was created.
7.1. It was further argued that the plaintiffs themselves have averred in the plaints that they continued the charities fulfilling the dreams of Abdul Sattar Saheb. This is nothing but a categorical admission that the proceeds from the suit lands were utilized for religious and charitable purposes recognized under Islamic Law. Wakf means permanent dedication of any movable or immovable property by a person professing Islam for any purpose recognized by Muslim Law as pious, religious and charitable. It includes 17 wakf by user and it shall not cease to be a wakf property by reason only of the user having ceased irrespective of the period of such seizure. After the constitution of Karnataka Board of Wakfs under the Karnataka Wakf Act, the State Government appointed survey commissioner. The survey commissioner issued notices under section 4 for survey and enquiry of the suit lands. Against these notices, the members of the family of Abdul Sattar Saheb who had by then constituted a committee called 'Sattariya Wakf Committee' appeared before the survey commissioner and submitted a copy of the settlement deed dated 5.9.1917 and submitted before the Surveyor that all the lands were being used for charitable purpose. Pursuant to this, the suit lands were declared as wakf properties. The descendants of the Wakiff were shown as the mutawallis. Actually this was the real state of affairs, but what happened was four survey numbers which were being used as wakf among others were inadvertently left out while issuing notification. Some of the legal representatives of the Wakiff took undue advantage of this and sought change of name in the RTC from Sattariya 18 Wakf Committee to their individual names. The Tahsildar considered their applications and thereafter an appeal was preferred to the Assistant Commissioner who came to conclusion that these survey numbers were left out in the notification and that they were actually wakf properties. He set aside the order of the Tahsildar and ordered for restoring the name of Sattariya Wakf Committee. After these proceedings, Sattariya Wakf Committee requested the Wakf Board to notify the lands in Sy. Nos. 109, 114, 115 and 116 as wakf properties. These proceedings clearly show that the claim of the petitioners on the lands is totally unfounded. A resolution was also passed by Sattariya committee that in respect of these properties, a wakf by user had been created. For more than 100 years, the properties are being used for charitable purposes. For the reason that notification issued for including the properties to wakf was not challenged, the petitioners have no right to question it; in fact the petitioners have no locus standi to question the notification. Even after issuance of notification on 18.1.2005, suit was not filed within time. The vendor's vendor lost right over suit 19 properties, they were bound by the notification and therefore the plaintiffs do not have locus standi to question the notification. Urging these points, the learned counsel submitted that CRP 470s to 476/2017 should be dismissed and CRP 477/2017 should be allowed.
8. I have considered the points of arguments. Before examining the findings given by the tribunal in all the suits, it is necessary to refer to some of the important sections of the Wakf Act that are applicable to the material facts of all these cases. Section 4 of the Wakf Act, 1995 states that a survey of wakf properties existing on the date of commencement of the Act has to be conducted. Section 4 of the Wakf Act, 1954 also dealt with conducting survey. Probably in order to ascertain the existence of wakf properties, survey might have been directed. Section 5 deals with publication of wakf properties on the basis of survey report. Section 6 deals with disputes regarding wakfs. If a dispute arises whether a property is a wakf property or not; or Shia Wakf or Sunni Wakf, the Mutawalli of the wakf or any person interested may institute a suit in the tribunal. 20 Now after introducing an amendment by virtue of Act 27/2013, the expression "any person interested" is substituted by "any person aggrieved". The limitation is one year from the date of publication of list of wakf properties. The decision of the tribunal is final. Section 7 also deals with resolution of a dispute in regard to wakf property, but this section applies to a dispute arising after commencement of the Act, and the period of limitation is one year as specified in clauses (a) and (b) of the proviso. Section 36 of the Wakf Act deals with registration of wakf created either before or after commencement of the Act. The mutawalli has to make an application for registration and he shall furnish a copy of the wakf deed or if no such deed is available, he shall furnish full particulars of the wakf as are known to the applicant. After receipt of application, the Wakf Board has to conduct an enquiry in regard to genuineness or validity of the application and shall also issue notice to the person administering the wakf and he shall be heard if he desires to be heard before taking any decision. The time limit for applying for registration is three months after 21 commencement of the Act. In case wakf was created before commencement of the Act, and three months from the creation of wakf if it comes into existence after commencement of the Act. Section 37 deals with maintenance of Register of Wakf. Section 40 (1) is another provision that empowers the Wakf Board to collect information regarding any property if it has reason to believe that a property is a wakf property and it can take a decision after holding an enquiry.
9. The sections referred to above show as to how the existence of wakf property can be recognized or established in three ways. In the case on hand, there is no dispute that Abdul Sattar Saheb made a settlement of his properties directing very clearly that income derived from them should be used for community dinner to Hindu and Muslim travelers. The deed also very clearly directs that community dinner should be arranged following the customs applicable to respective religion. The settlor himself took the responsibility of arranging the community dinner till his life time and expected his lineal descendants to continue the 22 same charity from the income derived from the land after deducting ¼ of the income towards cultivation expenses. He directed further that in case his lineal descendants failed to carry out his directions, the Moulvi of a masjid in that kasba should take over properties for continuing the charitable activity. But what is prominently seen is that the settler Abdul Sattar Saheb directed that community dinner should be arranged only one day in the Jyesta Masa or in the month of June every year. The settlement did not permit alienation, but allowed the caretakers of the lands to grow crops like ragi, plantain, etc., and to utilize the income from those crops for themselves.
10. The thrust of argument of Sri Devanand is that the settlement deed does not show dedication of the properties for wakf and rather it is in the nature of a trust or a private wakf. It is more of secular in nature. He has placed reliance on the judgment of the Supreme Court in the case of NAWAB ZAIN YAR JUNG (SINCE DECEASED) AND OTHERS vs DIRECTOR OF ENDOWMENTS AND ANOTHER [AIR 1963 SC 985]. In this judgment, the Supreme Court, 23 having noticed the distinction between wakf and a secular trust of a public nature, has clearly observed as below : -
"13. Having noticed this broad distinction between the wakf and the secular trust of a public and religious character, it is necessary to add that under Muslim law, there is no prohibition against the creation of a trust of the latter kind. Usually, followers of Islam would naturally prefer to dedicate their property to the Almighty and create a wakf in the conventional Mahommedan sense. But that is not to say that the followers of Islam is precluded from creating a public, religious or charitable trust which does not conform to the conventional notion of a wakf and which purports to create a public religious charity in a non-religious secular sense. This position is not in dispute. Therefore, the main question which calls for our decision is : Is the trust executed by the Nizam a wakf to which the provisions of the Act apply or is it a public charitable trust falling outside the said Act ? : and the decision of this question would obviously depend upon the construction of the document by which the trust is created and it is to that problem that we will now turn".24
11. The aforesaid observation of the Supreme Court makes the point very clear that where a property is dedicated by Muslim charity, a wakf does not get created, it all depends on the intention and purpose as to how the property should be made use of. But, Sri D.L.N.Rao, learned senior counsel for the Wakf Board contended that this judgment was not applicable, as it makes a distinction between English Trust and Wakf. This distinction is also found in addition to what is extracted above. Sri Devanand has also referred to two more judgments on this point. In the Division Bench of this court in the case of the Karnataka State Board of Wakfs vs Mohamed Nazeer Ahmed and Another [AIR 1982 KAR 309], a Muslim woman by name Fathimabi dedicated her property for the use of travelers in general by executing a Will. A dispute arose when the Wakf Board laid its claim on that property. In this context, by relying upon the Supreme Court judgment in the case NAWAB ZAIN YAR JUNG (supra), the Division Bench held that it was not possible to conclude that Fathimabi had constituted a wakf under her will Ex.P.133 since the 25 property was dedicated for the use of all the travelers. In this case, if the settlement deed is read, it is possible to say very clearly that Abdul Sattar Saheb wanted his properties to be used for charitable purpose like arranging community dinner to the Muslim and Hindu travelers. He made it very clear that his descendants in the family should make use of the properties for that purpose only and that they did not have liberty to mortgage, gift or sell. Of course there is one stipulation that they could grow crops like ragi, plantain, etc., and make use of the proceeds for their livelihood, but it was also made clear by Abdul Sattar Saheb that if any money remained after expending for 'Santarpane' (community feeding) it should be used for a reading of Quaran by a Moulvi. Therefore these recitals in the settlement deed do take to conclude that Abdul Sattar Saheb dedicated his properties permanently for religious, pious and charitable purposes. It cannot be said that just because he made arrangement for providing food to Hindu travelers, the settlement deed partakes secular nature to exclude it from the definition of wakf. The dedication being for religious, 26 pious and charitable purpose, the settlement indeed created a wakf.
12. The next question is the effect of not challenging the notification. Indeed Ex.D7 marked in O.S.7/2014 shows a survey being conducted followed by issuance of gazette notification. It is also true that some of the items of the property were included in the list of wakf in the year 2005 under the guise that they had been left out in the year 1965. The argument on behalf of Wakf Board is that the notification should have been challenged within a year. This being not done, the properties became absolute properties of the Wakf Board. Sri Devanand argued that one year limitation was not applicable to the petitioners, for they are not the persons interested in wakf. And in support of his argument, he placed reliance on a judgment of this Court in the case of Karnataka Board of Wakfs, Bangalore vs B.C.Nagaraja Rao [AIR 1991 KAR 400]. Yes, it is held in this decision that if a non-Muslim is in possession of certain property, his right, title and interest cannot be put in jeopardy simply because that property is included in the list 27 published under sub-section (2) of section 5, and since they cannot be called persons interested in the wakf, their suit was not time barred. Here in these cases, the petitioners are purchasers, but the question is who should have questioned? Ex.D7 marked in O.S.7/2014 shows survey being conducted after issuance of notices to the sons of Abdul Sattar Saheb. Subsequently gazette notification was also issued, but at that time inclusion of certain survey numbers were left out and they were included by issuing a corrigendum. Initially survey was not objected and some of the descendants of Abdul Sattar Saheb replied to the Survey Commissioner that they would furnish some details of property at the time of spot inspection. Therefore, these circumstances indicate that they had no objection of whatsoever nature to notify the properties as wakf properties. If at all any objection had to be taken for survey, they should have taken. There is explanation as to why a corrigendum had to be issued in the year 2005; some of the properties were left out without being notified in the gazette after survey and some descendants of Abdul Sattar Saheb 28 made use of that situation to get their names entered in the revenue records and alienated the properties. This was objected to by the Sattariya wakf committee and preferred an appeal to the Assistant Commissioner, who set aside the Tahsildar's order as evidenced by Ex.D20 marked in O.S.6/2009. Thereafter, the lands in Sy. Nos. 109, 114, 115 and 116 in the list of wakf properties. These are the reasons given. The grandsons of Abdul Sattar Saheb sold the properties on 19.6.2006 and 20.6.2006. The vendors of the petitioners are purchasers from grandsons of Abdul Sattar Saheb; the petitioners are second purchasers. These circumstances therefore very clearly show that soon after issuance of corrigendum in the year 2005, the legal representatives or the grandsons of Abdul Sattar Saheb should have questioned the corrigendum within one year. Merely because the petitioners are non-Muslims, they cannot say that they stand on a different footing. Sri D.L.N.Rao has placed reliance on a judgment of the Supreme Court in the case of SAYYED ALI AND OTHERS vs A.P.WAKF BOARD, HYDERABAD AND OTHERS [(1998) 2 SCC 642] to contend 29 that once a wakf is always a wakf. The principles laid in this decision are applicable to these cases also. The legal representatives of Abdul Sattar Saheb having failed to institute suits within time, if at all they still possessed interest in the properties, lost their right to question the notification and thereby the petitioners cannot say that limitation period prescribed in section 6 of the Wakf Act is not applicable. For this reason, I am of the opinion that the judgment of the Supreme Court in the case of the BOARD OF MUSLIM WAKFS, RAJASTHAN vs RADHA KISHAN AND OTHERS [AIR 1979 SC 289] which Sri Devanand has referred to on the question of limitation under section 6 is not applicable. Another point of argument of Sri Devanand is about non-registration of the wakf under section 36 of the Wakf Act. It is his argument since no application was made for registration of wakf by production of settlement deed, wakf did not come into existence. I do not think that section 36 can be pressed because of inclusion of properties by issuing a notification after survey.
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13. From the above discussion it is to be held that the tribunal which decided the suits O.S. 9/2009, 8/2009, 6/2009, 10/2009, 5/2009, 7/2009 and 11/2009 has not arrived at wrong conclusion to dismiss all the suits, but the decision of the tribunal in O.S.7/2014 does not stand to reason. Therefore, CRPs 470/2017, 471/2017, 472/2017, 473/2017, 474/2017, 475/2017 and 476/2017 are dismissed. The judgments in O.S. 9/2009, 8/2009, 6/2009, 10/2009, 5/2009, 7/2009 and 11/2009 are confirmed. CRP 477/2017 is allowed, the judgment of the tribunal in O.S.7/2014 is set aside, the said suit is dismissed. There is no order as to costs in all the petitions.
SD/-
JUDGE ckl