Madras High Court
Ebrahim Ahmed Bhaimia And Others vs Dawood Ahmed Bhaimia And Others on 2 March, 2001
Author: A.K. Rajan
Bench: A.K. Rajan
ORDER
1. Application No.4325 of 2000 has been filed for interim stay of further proceedings in C.S.No.640 of 2000, pending disposal of the application for rejection of plaint and this Court has granted interim stay on 16.10.2000. Application No.4326 of 2000 has been filed for rejection of the plaint in C.S.No.640 of 2000 as not maintainable, non-est, devoid of jurisdiction. Application Nos.418 to 420 of 2001 have been filed for impleading the parties.
2. The applicant, the first defendant in the suit is one of the Muthavallis of wakf estate of one Bhaimia, by the Wakf Deed dated 12th March, 1943. By the said Wakf Deed, the Wakif bequeathed the properties at various places for the beneficiaries specified in the Wakf Deed. It was a composite "Wakf Alal Aulad". The validity of the Wakf has been upheld in C.S.No.465 of 1949 on the file or this Court. In W.P.No. 202 of 1966, this Court, has held, the wakf estate is a "private composite wakf to the extent property dedicated for charitable purpose." But the entire deed was treated as wakf. This petitioner being one of the muthavallis has been managing the wakf estate from 1993 onwards. There are two other muthavallis who are away from India. Taking advantage of that, one of the muthavallis (28th defendant in the suit) illegally collected Rs.1.25 lakhs from the tenants of wakf property and did not account for it. The suit recently filed to frame a scheme is bad in law and for non-joinder of necessary parties. Therefore, the suit has to be rejected and all proceedings have to be stayed.
3. The prayer in Application No.418 of 2001 is to implead the Secretary, Tamil Nadu Wakf Board as one of the party defendants in the suit; Application No.419 of 2001 is to Implead the defendants 2 to 27, 29 to 38 in Application No.3478 of 2000 filed by the plaintiff for the distribution of income from a wakf as per the wakf deed and Application No.420 of 2001 is to implead the defendants 2 to 27, 29 to 38 in Application No.821 of 2000 in C.S.No.640 of 2000.
4. A counter has been filed by the plaintiff that the Wakf Board is not a necessary party and other defendants need not be impleaded in that application.
5. All applications are taken up together and common order is passed, since the issued involved is one and the same.
6. Learned counsel for the first defendant submits that he is one of the muthavallis and any dispute with respect to the wakf properties and the conduct of the wakf can only be decided by the Tribunal constituted under the Wakf Act subsequent to the passing of Wakf Act; the First Additional City Civil Court, Chennai lis the Tribunal under the Wakf Act. Therefore, this suit as filed is not maintainable and this Court has no jurisdiction. Further, he argued that any dispute in connection with the wakf, Wakf Board is also a necessary patty. Without impleading the Wakf Board, no matter can be decided.
7. Learned counsel for the plaintiff argued that as per Section 3 of the Wakf Act, 1995, in a "wakf-alal-aulad" to the extent to which the property is dedicated for any religious or charitable or pious purpose can be said to be wakf; and under this deed, only 10% of the income derived from the properties are dedicated for pious, religious and charitable purpose and therefore, only 10% of the income can be treated as wakf and the remaining income does not fall within the definition of wakf. Since this suit is only with respect to the remaining 90% of the income which is not dedicated for pious or charitable purpose, the Wakf Board is not a necessary party before this Court and therefore, these applications are liable to be dismissed.
8. Section 3 of the Wakf Act defines "Wakf" as follows:
'wakf' 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 wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;
(ii) 'grants', including mashru tul-khidmat for any purpose recognized by Muslim Law as pious, religious or charitable; and
(iii) a walf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim Law as pious, religious or charitable, and "wakif" means any person making such dedication; "
Therefore, as per sub-clause (iii) it is only to the extent to which the property is dedicated for any purpose recognised by Muslim Law will be the "wakf property'.
9. From a perusal of the Wakf Deed, it is seen many properties were dedicated under this Wakf and from and out of this wakf property, 20% of the income shall be invested in the bank for the purpose of maintenance of the properties for carrying out of the repairs etc., and 10% of the income shall be spent for religious, pious and charitable purpose. The balance of 70% of the income are to be shared by the heirs of wakif. Therefore, 70% of the income out of the total wakf properties are not really part of wakf. Therefore, Wakf Board is not a necessary party. The argument of the learned counsel for plaintiff is acceptable. Therefore, Wakf Board is not a necessary party. Application No.418 of 2001 is liable to be dismissed and hence it is dismissed.
10. The suit has been filed by one of the beneficiaries who is entitled to a share in the 70% of the income from the wakf properties. It is not necessary to implead all other beneficiaries as parties/ defendants, because the plaintiff is interested only to get his share out of the income. Therefore, the plea that all the other beneficiaries must also be impleaded as parties is not acceptable. Hence, Application No.420 of 2001 is dismissed. For the same reason, Application No.419 of 2001 is also dismissed.
11. As regards, Application No.4326 of 2000, as already stated as 70% of the income is not part of the wakf, the suit need not be rejected and hence this application is liable to be rejected. For the same reasons, Application No.4325 of 2000 is dismissed.
12. In the result, Application Nos.418 to 420 of 2001 and Application Nos.4325 and 4326 of 2000 are dismissed.