Madras High Court
M.K.Sahul Hameed vs N.Abdul Hug on 28 August, 2012
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/08/2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU C.R.P.(NPD).(MD)No.1616 of 2008 & C.R.P.(NPD).(MD)No.2009 of 2008 and M.P.(MD).Nos.1 & 1 of 2008 C.R.P.(NPD)(MD).No.1616 of 2008 M.K.Sahul Hameed ... Petitioner Vs. 1.N.Abdul Hug 2.G.Mohammed Abdul Khader (Died) 3.The Tamil Nadu Wakf Board, rep.through its Executive Officer-cum-Secretary, Chennai. 4.Mohammed Meeran 5.Syed Sulthan Beevi ... Respondents (R5 brought on record as LR of the deceased 2nd respondent vide order dated 06.08.2010 made in M.P.(MD).No.1 of 2010 in CRP.NPD(MD).1616/2008) C.R.P.(NPD)(MD).No.2009 of 2008 Tamil Nadu Wakf Board, Chennai, through its Executive Officer-cum-Secretary. ... Petitioner Vs. 1.M.K.Sahul Hameed 2.N.Abdul Hug 3.G.Mohammed Abdul Khader 4.Mohammed Meeran ... Respondents Petitions filed under Article 227 of the Constitution of India against the fair and decreetal order, dated 12.11.2007 made in W.O.P.No.1 of 2000 on the file of the Principal Sub-Court, (Wakf Tribunal), Dindigul. C.R.P.(NPD)(MD).No.1616 of 2008 !For Petitioner ... Mr.V.Ramajegadeesan ^For Respondent ... Mr.S.Harihara Ramachandran (For R1 & R2) Mr.M.Ajmal Khan (For R3) Mr.S.Pon Senthilkumaran (For R4) C.R.P.(NPD)(MD).No.2009 of 2008 For Petitioner ... Mr.M.Ajmal Khan For Respondent ... Mr.V.Ramajegadeesan (For R1) Mr.S.Harihara Ramachandran (For R2 & R3) Mr.S.Pon Senthilkumaran (For R4) :COMMON ORDER
Both Civil Revision Petitions are filed under Article 227 of the Constitution of India challenging the order passed by the Principal Sub-Judge, Dindigul (Wafk Tribunal), in W.O.P.No.1 of 2000, dated 12.11.2007.
2.The first CRP viz. C.R.P(NPD)(MD).No.1616 of 2008 was admitted on 28.08.2012. Pending CRP, interim injunction was granted initially for a period of two weeks and subsequently, extended from time to time till 27.11.2008. During the pendency of the said CRP, since the 2nd respondent passed away, the legal heir has been brought on record viz. 5th respondent.
3.The 3rd respondent in the WOP, viz., the Tamil Nadu Wakf Board, through its Executive Officer-cum-Secretary, also filed another CRP in C.R.P.(NPD)(MD).No.2009 of 2008. In that CRP, notice was ordered on 30.10.2008 and an interim stay was granted from time to time.
4.Since both the CRPs challenge same order of the Tribunal, they were grouped together and a common order is passed.
5.It is seen from the records that the properties connected with the said WOP belonged to one Gulam Hussian Rowther and he died leaving behind three sons namely Sheik Mohammed Rowther, Mohamed Ibrahim and Naina Mohamed Rowther. On 25.07.1906 the three brothers partitioned their properties. They kept the first four items of lands in Common for the performance of Fathiya for their mother and father and also for performance of many other charities connected with it. Accordingly, the said four items were kept in common by the three brothers, which are shown in 'F' Schedule of the deed. Out of the income from the said four items, they were performing the Fathiya for their parents and also doing other connected charities. With the income of those lands, they constructed a Mosque and a Madarsa in Sittuvarpatty. They also purchased the other items mentioned in the petition from out of the income from the first four items. In the lands in Ayyalur, Shandies were conducted every week on Thursdays, from which they were getting substantial income. Out of the income from these properties, the mosque and Madarsa at Sttuvarpatti were maintained. The annual repairs to the buildings and other expenses connected with the charities were met by the three brothers out of the income of the trust properties. In 1920, Mohamed Ibrahim passed away leaving behind his sons Mohamad Bahlool Rowther and Gulam Hussian Rowther. They were continuing the performance of the trust in the place of their father. Later the first son of Gulam Hussian Rowther, namely Sheik Mohamed Rowther also passed away. The charities were performed by others. On 21.08.1935, the two sons of Mohamed Ibrahim and two sons of Naina Mohamed Rowther namely Mohamed Hussain and Mohamed Kasim wanted to make a record of their properties, and the details of the various charities performed by them out of the trust properties. They brought about a registered deed mentioning these facts. The Deed specifically refers to the properties dedicated to trust and the various charities that are being performed by the four persons. It also mentions that the four persons should act as Muthawallis in rotation. After the execution of the document, the sons of Mohamed Ibrahim namely Mohammed Bahlool Rowther and Gulam Hussain Rowther, with ulterior motives of keeping the properties under their control alone and using their power and influence got a Release Deed on 26.09.1935 in respect of the seven items of the properties from the other two trustees. After the said document, the said two brothers became in possession of the wakf properties. The said two brothers registered the properties as wakf properties with the Tamil Nadu Wakf Board. It is stated that the lands comprised in the petition are wakf properties dedicated for the performance of the trust mentioned in the document dated 21.08.1935. Abdul Hug [R1 in CRP(NPD).1616/2008] and Mohammed Abdul Khader [R2 in CRP(NPD).1616/2008] were performing the duties of the Trust. A certified copy of the proforma report granted by Wakf Board showed that they are the Mutawallis at the time of registration.
6.The petitioner in CRP(NPD).1616/2008 is the son of late Mohamed Kasim Rowther, one of the sons of Naina Mohamed Rowther. As grandson of one of the trustees, the petitioner is interested in the performance of the trust. He came to know that the 1st and 2nd respondents are acting against the interest of the trust and they alienated some of the properties, but he is not able to get the full and correct details of the alienatees. Since the 1st and 2nd respondent were attempting to sell all the remaining properties, the petitioner in CRP(NPD).1616/2008 filed the said WOP. The 4th respondent has now been appointed as Muthawalli of the Mosque by the worshipers. The petitioner has sent a notice on 28.01.2000 to the respondents 1 & 2 and Wakf Board (R3) as well as the present Muthawalli (R4). The respondents 1 & 2 have no power to alienate the wakf properties. Therefore, he filed said WOP with a prayer to declare that the properties are wakf properties and also to grant an order of injunction restraining the respondents 1 & 2 from alienating the properties. The said WOP was registered as W.O.P.No.1 of 2000 by the Wakf Tribunal (Principal Sub-Judge), Dindigul and notice was ordered to the parties.
7.The respondents 1 & 2 therein filed a counter affidavit stating that the genealogy was accepted and after performing Fathiya, the balance amounts were given for the partitioners' own expenditures. There is no huge income from the said properties. A release deed was given on 26.09.1935 and the document dated 21.08.1935 was cancelled on 26.09.1935. Since the said document was brought into effect without the consent of the Naina Mohamed Rowther. it was cancelld. The petitioner's father also signed in the said document dated 26.09.1935. No properties were misused and no expenditure of the Wakf was met with the income of the properties mentioned in the document dated 21.08.1935. No periodical activities were conducted. The properties were enjoyed over 65 years only as personal properties and in respect of the WOP mentioned properties, no Wakf was created and the WOP was filed only to harass the respondents.
8.The 4th respondent has also filed a counter affidavit stating that the properties were in the possession of the respondents 1 & 2. The 4th respondent attempted to take the possession of the properties, but it was resisted.
9.The 3rd respondent - Tamil Nadu Wakf Board also filed a counter affidavit stating that the properties mentioned in the WOP are managed by the then Muthawalli, who is the care taker of the Wakf property and the Wakf Board has got ample power to file a suit for recovery of possession at any time and limitation will not apply.
10.Before the Tribunal, six documents were filed by the petitioner and there was no document on the side of the respondents. On behalf of the petitioner, the petitioner himself was examined as P.W.1 and one Abdul Majeeth was examined as P.W.2. On the side of the respondents, the 2nd respondent himself was examined as R.W.1. The Tribunal framed three issues, which are as follows:-
(1)Whether the properties can be declared as Wakf Properties as claimed by the petitioner?
(2)Whether the petitioner's relief for permanent injunction can be granted?
(3)Whether the petitioner is entitled for any other relief?
11.In his cross-examination, the petitioner who was examined as P.W.1, admitted that for his legal notice a reply was sent stating that the document Ex.P.2 has been cancelled by Naina Mohamed Rowther vaiyaras and the rituals in the mosque and the payment of the priest during Ramzan were paid by the respondents and Fathiya was also performed only by the respondents. They are also performing the repair works of the mosque. Wakf Board proforma did not contain the cancellation of the trust. Wakf Board did not send any notice relating to the properties of the trust.
12.In the evidence of R.W.2 - Mohammed Abdul Khader, it was stated that there is a market in the property in question, which is running over 100 years and the income was not high and several shops have come up. The suit properties do not belong to Wakf. No document has been created in respect of Wakf. A document dated 21.08.1935 (trust deed) was written by the children, even when the owner of the property (father) was alive, but the father immediately cancelled the trust deed. In the document dated 21.08.1935, Naina Mohamed Rowther was not a party. Dedication for performing Fathiya was written in the document, but the properties were not under the control of Wakf Board. The respondents 1 & 2 are enjoying the properties with full rights.
13.In the light of these facts, the Tribunal held that since there were rival stands relating to the properties, it has to be seen whether the properties were exclusively owned by the respondents 1 & 2 and they were wakf properties. The Tribunal held that as per Ex.P.3 the earlier doucument-Ex.P.2 was cancelled and no document was produced to shown that the properties were dedicated for the Wakf. If registration, as alleged, in the year 1963 was made and documents were brought under the Wakf Board control, then there must be something on record to reflect the same. But, no such document has been furnished. No demand of accounts was asked for by the Wakf Board, since the document dated 21.08.1935 was cancelled. It has not been brought into notice at the time of partition. The performances, for which certain properties were kept separately, have been fulfilled. Hence, the properties in question were exclusively belonged to the respondents 1 & 2 and they were discharging charitable works and the properties do not belong to the Wakf Board. Hence, the relief asked for by the petitioner cannot be granted.
14.At this circumstance, it has to be seen that along with these CRPs, several Writ Petitions were directed to be posted, in which it is found that the properties in question were sold to the third parties and they have constructed houses and shops in the properties and the properties were also subsequently acquired for expansion of National Highway-45 and the compensations in respect of the constructed buildings have been paid to those person, who are in the acquired properties. A complaint was made by the affected parties, when they were denied compensation. But, they were not made parties either in the WOP or in the CRPs and in their behind the proceedings were held. Therefore, those persons were not made parties. However, it is unnecessary to go into the details in the absence of any impleading application being filed in these CRPs. It would be suffice to state that the order of the Wakf Tribunal does not suffer from any infirmity. Since the alleged land owners claimed to be muthawallies of the Wakf did not raise any plea of ownership and they were satisfied with the pending CRP. It is unnecessary to refer their cases to any further enquiry relating to the ownership of the lands acquired under the National Highways Act.
15.The counsel for the petitioner placed reliance upon the judgment of the Honourable Supreme Court in Chhedi Lal Misra Vs. Civil Judge reported in 2007(4) SCC 632 for contending that once a Wakf is created and it continues to retains such character, it cannot be extinguished by any act of the Mutawalli or anyone claiming through him. Further, the Wakif stands divested of his title to the properties which after the creation of the wakf vests in the Almighty.
16.A reference was also made to the Judgment of this Court reported in 2011 Writ L.R. 787 (Haji B.Pakkir Mohammed Vs. The Secretary to Government & others), wherein the earlier principle was reiterated. Further held that, failure to have the wakf registered as provided under the Act does not vitiate the Scheme.
17.Lastly a reference was made to the judgment of the Honourable Supreme Court reported in (2012)6 SCC 328 (Maharashtra State Board of Wakfs Vs. Yusuf Bhai Chawala and others) for contending that there is a vast difference between Muslim wakfs and trusts created by Muslims. The basic difference is that wakf properties are dedicated to God and the 'wakif' or dedicator does not retain any title over the wakf properties. As far as the trusts are concerned, the properties are not vested in God.
18.The respondents have placed reliance upon the judgment of a Full Bench of the Lahore High Court reported in A.I.R.1983 Lahore 369 (Masjid Shahid Ganj Vs. S.G.P.Committee) for contending that once a property is possessed by a non- Muslim, it loses its sanctity character and there was no duty cast on such person to maintain its original character or to maintain it as a building.
19.It must be noted that in the judgment of the Honourable Supreme Court referred to by the petitioner in (2012)6 SCC 328 (Maharashtra State Board of Wakfs Vs. Yusuf Bhai Chawala and others), it was clearly stated that there is a distinction between the Wakf and Trust. In the present case, one of the partitioners was a signatory to the document and subsequently, he has also cancelled the same. As rightly found by the Wakf Tribunal ,there are no documents to convince that the properties were that of the wakf and it has been in the control of the muthawallis. On the other hand, it was clearly established that the respondents 1 & 2 were solely enjoying the benefits of the properties and have also alienated the lands to the third parties. This Court do not find any infirmity or perversity in the order passed by the Tribunal. The Revision Petition filed under Article 227 of the Constitution has a limited scope to find out whether there is any material irregularity or lapse in conducting the proceedings. The Courts normally do not interfere with the findings of facts by the Tribunal. I the absence of any irregularity in the orders of the Tribunal, the extraordinary powers of the High Court cannot be put into service.
20.The parameter of the jurisdiction under Article 227 of the Constitution has been explained in more the one decision of the Honourable Supreme Court. Hence, it is necessary to refer three decisions of the Honourable Supreme Court reported in 1969(2) SCC 74 (Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat), 1977(3)SCC 515 (S.P.Deshmukh Vs. Shah Nihal Chand Waghajibai Gujarati) and 1999(9) SCC 264 (Khimji Vidhu Vs. Premier High School). The Honourable Supreme Court in those decisions has held that if the Tribunal reaches the conclusion on facts, the same cannot be interfered with under Article 227 of the Constitution. Similarly, unless the findings of the lower Court is perverse, the question of intereference under Article 227 of the Constitution does not arise.
20.In view of the above, both the Civil Revision Petitions will stand dismissed. However, there is no order as to costs. Consequently, connected Miscellaneous Petitions are closed.
ssv To
1.The Principal Sub-Court, (Wakf Tribunal), Dindigul.
2.The Executive Officer-cum-Secretary, Tamil Nadu Wakf Board, Chennai.