Karnataka High Court
Mr Hasneyn Mirza vs The Karnataka State Board Of Wakf on 29 March, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
CIVIL REVISION PETITION NO.145 OF 2011
BETWEEN:
1. MR. HASNEYN MIRZA
AGED ABOUT 51 YEARS.
2. MR. ZEYN MIRZA
AGED ABOUT 48 YEARS.
BOTH SONS OF
LATE MAJOR MOHAMMED MIRZA
NO.14, FLAT NO. G-B,
RESIDENCY PAVILION,
ALEXANDRIA STREET,
RICHMOND TOWN,
BANGALORE-560025.
...PETITIONERS
(BY SRI. RAHUL CARIYAPPA, ADVOCATE)
AND:
1. THE KARNATAKA STATE BOARD OF WAKF
NO.6, CUNNINGHAM ROAD,
'DARUL AWAKAF'
BANGALORE-560052,
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER.
2. AGA ALI ASKAR WAKF
2
UNDER THE MANAGEMENT OF
KARNATAKA STATE BOARD OF WAKF,
NO. 6, CUNNINGHAM ROAD,
DARUL AWAKAF,
BANGALORE-560052,
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER .
3. MR. MUSTAQ HUSSAIN BADAMI
AGED ABOUT 60 YEARS,
SON OF AKBER ALI BADAMI,
EAGLE STREET, LANGFORD TOWN,
BANGALORE-560025.
4. MRS. GULNAZ BEGUM
DAUGHTER OF ABID ALI ALIAS BASHA JAN
NO.14, HUSSAIN NAGAR, 2ND STREET,
SARDARJUNG GARDEN, ROYAPETTAH
CHENNAI-14.
5. MR. MIRZA HABIB AGA
SON OF M.F. AGA
AGED ABOUT YEARS,
NO.17, ARABLANE 'B' STREET,
RICHMOND TOWN,
BANGALORE-560025
6. MR. ZIA KHALEELI
S/O LATE MOHAMMED RAFI KHALEELI
AGED ABOUT YEARS
NO.2, LAUREL LANE,
RICHMOND TOWN
BANGALORE-560025
7. MR. MOHAMMED ALI SHIRAZI
SON OF AGA ABDUL MAJEED
AGED ABOUT YEARS
NO. 9, MYRTAL LANE,
ROSEWOOD APARTMENTS,
3
RICHMOND TOWN,
BANGALORE-560025
8. ANJUMAN-E-IMAMIA
NO. 5, HOSUR ROAD,
MASJID-E-ASKARI
RICHMOND TOWN,
BANGALORE-560025
REPRESENTED BY ITS PRESIDENT
9. MR. MOHAMMED ABBAS SALEH SHIRAZI
SON OF SALEH SHIRAZI
SALEH ARCADE (GROUND FLOOR),
NO.3, LEONARD LANE,
RICHMOND TOWN,
BANGALORE-560025
...RESPONDENTS
(BY SMT. S.R.ANURADHA, ADVOCATE FOR RESPONDENT
NO.1;
SRI. P.S.MALIPATIL, ADVOCATE FOR RESPONDENT NO.2;
NOTICE ON RESPONDENT NOS.3 TO 9 SERVED AND
UNREPRESENTED)
THIS CRP IS FILED UNDER SECTION 83(9) WAKF
ACT, READ WITH SECTION 115 OF CPC., AGAINST THE
ORDERS DATED 11.03.2011 PASSED IN
APPEAL.NO.04/2006 ON THE FILE OF THE PRESIDING
OFFICER KARNATAKA WAKF TRIBUNAL BANGALORE
DIVISION, BANGALORE, DISMISSING THE APPEAL FILED
UNDER SECTION 69(3) OF WAKF ACT.
THIS CRP HAVING BEEN HEARD AND RESERVED ON
14.12.2021 COMING ON FOR 'PRONOUNCEMENT OF
ORDERS' THIS DAY, THE COURT PASSED THE
FOLLOWING:
4
ORDER
This Revision Petition under Section 83 (9) of the Waqf Act, 1995 (henceforth referred as 'the Act' for short) is filed, calling in question the correctness of the order dated 11.03.2011 passed by the Karnataka Wakf Tribunal, Bangalore Division, Bangalore (henceforth referred to as 'Tribunal' for short) in Appeal No.4 of 2006, by which, it rejected a challenge to an order dated 02.08.1997 passed by the respondent No.1 in L.C.C. No.5/86, modifying the Scheme of Management of respondent No.2.
2. The petitioners contend that late Aga Ali Asker had created a Family Trust in respect of the property known as 'Bakharabad', old No.9, New No.25 Sankey road, Bengaluru in terms of his Will dated 29.10.1880 and codicil dated 23.06.1887. He had appointed his four sons to be the executors of the Will and had devised that the rents and profits of the property be applied from time to time in performance of works of benevolence and charity and for religious purposes, in the absolute discretion and 5 judgment of the executors. The petitioners claimed that no Trust was created in respect of the immovable property of 'Bakharabad' and it was not bequeathed in the name of God or for any religious or charitable purposes.
3. After the demise of Aga Ali Asker Shirazi, his four sons named in the Will continued to be the Trustees during their life time. His sons, namely, Mohammed Cassim Mushar Aga Jan died in the year 1909, Aga Abdulla passed away in the year 1926 and Aga Abbas Ali died in the year 1928. The eldest son Mr. Aga Abdul Hussain nominated and appointed his younger brother Mr. Aga Mohammed Nabi as a Trustee to manage and administer the property. He continued to be the sole Trustee till the year 1935 when he appointed his nephew Mr. Mirza Ismail (son of Aga Mohammed Cassim) as Trustee who managed and administered the property till 1952. Thereafter the second son of Aga Mohammed Cassim managed the property. It is alleged that the respondent No.1 erroneously listed the property in the list of Wakfs by a 6 notification dated 07.06.1965 treating it as "Aga Ali Asker Wakf", and passed an order dated 17.02.1963 appointing five persons from amongst the descendents of the testator to manage and administer the property for a period of two years. The term was extended from time to time.
4. Later, by an order dated 16.11.1969 passed in L.C.C. No.5/1967, the respondent No.1 framed a Scheme of Management authorising the family members of the testator to manage and administer the properties belonging to Aga Ali Asker Shirazi. The petitioners claimed that the said Scheme of management was in conformity and in consonance with the terms of the Will, inasmuch as it provided for management of the properties by the descendants of the testator.
5. Later, by an order dated 26.01.1978, the respondent No.1 assumed direct management of respondent No.2 and appointed a Commissioner. The respondent No.1 by a Notification dated 02.05.1985 proposed to amend the Scheme of Management approved 7 by it in LCC No.5/1967. The petitioners filed their objections to the proposed amendment. The issue was therefore referred to the Law Committee and was registered as LCC No.5/1986. The Law Committee framed the following points for consideration :
i. Whether the Aga Ali Asker Wakf is a Public Shia Wakf or a private family Wakf of the Wakif? ii. Whether the Wakf Board is competent to amend the scheme of management dated 16.11.1969? iii. Whether the members of the family of Wakif have a vested right to manage the Wakf by way of custom or usage?
iv. Whether the relinquishment of their rights by most of the descendants of Aga Taqui Shirazi is legAli valid and alter the circumstances necessitating the amendment of scheme of management? v. Whether there is justification for reducing the reservation in favour of the descendants of Wakif from 100% to 20%?
vi. Does the interest of the Wakf requires the existing scheme of management be amended?
vii. Are the amendments proposed in Ex.P22 gazetted notification justified and permissible? If not what are the amendments permissible?8
6. The Law Committee by order dated 02.08.1997 modified the Scheme of Management, consequent to which, the Committee of Mutawallis consisted of five adult male members but the number of Mutawallis could be increased upto seven. The Mutawallis were to be nominated from amongst the descendants of Late Aga Ali Asker regardless whether the descendants were through the male or female lineage. However, if the number of Mutawalli is increased to seven, the two additional Members could be nominated from amongst Shia Muslims of the Anjuman-E-Imamia Persuasion, but the descendants of the Wakif would be preferred over others and in case a sufficient number of suitable persons were not available from among the descendants of the Wakif, the respondent No.1 could appoint any other Shia Imamia Muslim as member of the Committee of the Mutawallis. This order was challenged before the Wakf Tribunal under Section 69(3) of the Act on the ground that the respondent No.1 had no power to amend the Scheme framed on 16.11.1969. They also contended that Late Aga Ali Asker 9 Shirazi had created a private family Trust by virtue of his Will and certainly did not have any desire to constitute it into a Wakf. They also contended that they had a vested right to manage the Wakf by usage and custom.
7. The respondent No.1 did not file any objections before the Tribunal. The Tribunal, therefore, set down the case for evidence of parties, neither the petitioners nor the respondents led any oral evidence.
8. The respondent No.1 addressed arguments and contended that those who had filed their objections to the scheme of management were, in fact, people who had executed release deeds in favour of respondent No.1 and therefore, they were not eligible to contest the amendment of the Scheme, on the ground that the testator had not created a Wakf. They also contended that the petitioners had not challenged the notification dated 07.06.1965 in the manner provided under Section 6(1) of the Wakf Act, 1954 (henceforth referred to as 'Act of 1954' for short) within a period of one year. They contended that in the 10 year 1967, one of the descendants of the Wakif Dr.Mohamed Aga filed a petition before it, against Dr.M.H.Naveen and others who were allegedly mismanaging the affairs of the institution and prayed for framing Scheme of Management as provided under Section 15(2)(d) of the Act of 1954. This was placed before the Law Committee of the Board which was registered as L.C.C. No.5/1967. After due enquiry, a Scheme of Management was prepared pursuant to the order dated 16.11.1969. As per that Scheme of Management, the Committee comprised of five members, who were the descendants of the Wakif and the respondent No.1 was empowered to appoint two more members. It claimed that the income of the property was meagre and therefore, some of the heirs of Aga Taqui Shirazi had relinquished their claims over the Wakf and its income after receiving substantial amounts by way of consolidated payment for their share. The respondent No.1, therefore, claimed that upon such relinquishment, the Shia Community of Bangalore City became the beneficiaries of the Wakf, and 11 therefore, the respondent No.1 felt it unjustified to retain only the descendants of the Wakif on the Committee of the Mutawallis. Therefore, it notified an amendment on 02.05.1985 inviting objections. It contended that some of the objectors did not appear and did not lead any evidence, while some of the objectors had already executed relinquishment deeds.
9. Based on this, the Tribunal framed the following points for consideration :
i. Whether the impugned order dated 02.08.1997 passed by the Respondent No.1 in L.C.C. No.5/1986 modifying the Scheme of Management of respondent No.2 is sustainable in law? ii. What order?
10. The Tribunal held that under Section 32(2)(d) of the Act of 1995, the respondent No.1 had power to settle a Scheme of Management for Wakf and that accordingly a Scheme was framed as per order dated 16.11.1969 which was not challenged by any person including the descendants of the Wakif. It held that under 12 Section 69(4) of the Act, the Board had the power to modify and cancel the Scheme after hearing all persons interested in the Wakf. The Tribunal held that after the majority of the sharers of Aga Taqui Shirazi had relinquished their interest, the respondent No.1 was of the opinion that the Shia community of Muslims of Bangalore were the beneficiaries of the Wakf and therefore, had modified the Scheme of Management. The Tribunal held that upon a reading of the Will of the Wakif and the codicil, it unequivocally transferred the ownership of 'Bakharabad' in favour of its executors, in perpetuity for the clearly specified purpose of constructing a mosque for worship and therefore, it held that modification of the committee of management was based on the records and taking into account, the interest of Wakf and all major beneficiaries of Shia community of Bangalore. It, therefore, held that the respondent No.1 was empowered to amend the Scheme of Management and consequently the order passed by the respondent No.1 dated 02.08.1997 in L.C.C. No.5/86 was 13 proper and correct. Consequently, the Tribunal dismissed the appeal.
11. Being aggrieved by the aforesaid order, the present Revision Petition is filed.
12. The learned counsel appearing for the petitioner submitted that the Law Committee constituted by the respondent No.1 did not possess the power or jurisdiction to decide the nature and character of the Wakf. He claimed that it is the Tribunal alone which is competent to determine the nature and character of the Wakf. The learned counsel contended that the testator did not create any Wakf in respect of the immovable property of ''Bakharabad' but only devised the way in which the income and proceeds from the property should be used and applied. He contended that as per the Will the immovable property of ''Bakharabad' devolved upon the sons of the Wakif. The learned counsel invited the attention of the Court to the Notification dated 07.06.1965 and contended that even as per the understanding of 14 respondent No.1, it was only the rents and profits arising out of property which was notified and not the immovable property itself. The learned counsel contended that the testator intended to create a Family Trust and not a Wakf. In this regard he relied upon the judgment of the Hon'ble Supreme Court in Nawab Zain Yar Jung (since deceased) and Others vs. Director Of Endowments And Another reported in AIR 1963 SC 985. He also relied upon the judgment in the case of Radhakanta Deb And Another vs. The Commissioner Of Hindu Religious Endowments, Orissa reported in AIR 1981 SC 798 as well as the judgment in the case of Maharashtra State Board Of Wakfs vs. Yusuf Bhai Chawala And Others reported in (2012)6 SCC 328. He submitted that the testator was entitled to bequeath his properties in the manner felt appropriate by him and therefore, mere execution of the Will itself would not create a Wakf . In this regard he relied upon the judgment in the case of Mst. Peeran w/o. Abdul Razzaq vs. Hafiz Mohammad Ishaq and Others reported in AIR 1966 15 Allahabad 201. He submitted that when the immovable property of 'Bakharabad' is not the subject matter of Wakf, the order framing any Scheme of Management is a nullity, which can be set at naught in collateral proceedings. In this regard he relied upon the judgment of the Apex Court in the case of Isabella Johnson (Smt.) vs. M.A.Susai (dead) by Lrs. reported in (1991)1 SCC 494; Kiran Singh and Others vs. Chaman Paswan and Others reported in AIR 1954 SC 340; and Hindustan Zinc Limited vs. Ajmer Vidyut Vitran Nigam Limited in Civil Appeal No.9212 of 2019. He lastly invited the attention of the Court to a judgment in the case of Abdullamiyan Abdulrehman vs. Government of Bombay reported in AIR (29) 1942 Bombay 257, in support of his contention that where an Authority which purports to pass an order is acting without jurisdiction. The purported order is a mere nullity. It is not necessary for anybody, who objects to that order, to apply to set it aside. He can rely on its invalidity when it is set up 16 against him, although he has not taken steps to set it aside.
13. He contended that Section 69 of the Act, dealt with the power of the Board to frame scheme for administration of the Wakf and not for the management of the properties. He submitted that it is only under Section 32(2)(d) of the Act that a Scheme of Management for a Wakf could be settled. The learned counsel submitted that the Scheme of Management was already settled on 16.11.1969 and what is now sought to be done under Section 69(4) of the Act is to frame a Scheme of administration. The learned counsel contended that in the garb of exercise of power under Section 69(4) of the Act, the respondent No.1 had attempted to tamper with the Scheme of Management.
14. Per contra, the learned counsel for the respondent No.1 submitted that the petitioners were aware of the notification dated 07.06.1965 notifying the Wakf of Aga Ali Asker Shirazi, and therefore, must have contested 17 the same within the time provided under Section 6 of the Act of 1954. She contended that the first Scheme of management was framed on 16.11.1969 and none of the descendants of Aga Ali Asker Shirazi questioned the said Scheme of Management. She contended that under Section 43(A) of the Act of 1954, the Wakf came under the direct management of respondent No.1 which was also not questioned. She contended that some of the descendants of Aga Ali Asker Shirazi had filed W.P. No.18767/1985 challenging the order dated 14.11.1985 constituting a committee of Mutawallis under the Scheme framed on 16.11.1969 in L.C.C. No.5/1967. The writ petition was disposed off as having become infructuous since the term of the Committee of Mutawallis had expired. The learned counsel invited the attention of the Court to the interim order granted in W.P. 18767/1985, wherein the respondent No.1 was permitted to manage the property of 'Bakharabad' which it was doing from 26.01.1978. The learned counsel relied upon the documents furnished by respondent No.2, more particularly a deed of release dated 18 03.10.1972 executed by Major Mohammed Mirza in favour of respondent No.2 releasing all his right, title and interest in respect of the property. The learned counsel submitted that Mr. Major Mohammed Mirza was a donee of the interest of his maternal aunt Shah Biwi, the daughter and heir of Lt. Aga Mohamed Taqui.
15. The learned counsel submitted that the testator had by his codicil dated 23.06.1887 bequeathed 1/4th of the rents and profits from 'Bakharabad' property to his nephew and son-in-law Aga Mohammed Taqui. She claimed that the entire interest in the 'Bakharabad' property stood vested in the Wakf as none of the other descendants of the testator had challenged the declaration of the property as a Wakf property and had not challenged the Scheme of Management and the subsequent assumption of direct Management by respondent No.1. Learned counsel submitted that the petitioners are not aware of their own rights which is evident from para 8 of the appeal filed before the Tribunal. Therefore, they 19 cannot claim for any declaration that the descendants of the testator alone are entitled to manage and administer the respondent No.2 and his properties. The learned counsel also contended that the petitioner did not plead before the Law Committee that the property was not a Wakf and he did not attempt to challenge the notification dated 07.06.1965. The learned counsel invited the attention of the Court to the order passed by the Tribunal and contended that the procedure as contemplated under Section 69 of the Act was complied with and therefore, there was no procedural error in bringing about the amendment to the Scheme of management.
16. The learned counsel submitted that once the property was notified as a Wakf, it always remained as Wakf. In this regard she relied upon a judgment in the case of Sayyed Ali and Others vs. A.P. Wakf Board, Hyderabad and Others reported in (1998) 2 SCC 642. She also relied upon the judgment of the Hon'ble Supreme Court in Aliyathammuda Beethathebiyyappura 20 Pookoya and others vs. Pattakal Cheriyakoya and Others reported in (2019)16 SCC 1 and contended that the High Court in its revisional jurisdiction should not interfere with findings of fact recorded by the courts. She also contended that the burden of proof to establish a custom was higher in respect of a public Wakf than in case of a family Trust. She invited the attention of this Court to the order passed in W.P. No.7951/1980 where the challenge was to an order dated 02.02.1980 passed by respondent No.1, by which the respondent No.1 handed over the management of the Wakf to Anjuman-e-Imamia, Bengaluru which was the Society constituted for the upliftment of shia Muslims of Bangalore. The learned counsel submitted that this writ petition was filed by the descendants of the Wakif who did not deem it appropriate to challenge the notification declaring the property as a Wakf. She, therefore, contended that the petitioners cannot now dispute or challenge the notification of the property as a Wakf.
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17. At this stage, the learned counsel for the petitioner submitted that a suit in O.S. No.6/2017 is filed before the Tribunal for various reliefs including declaration that Late Aga Ali Asker Shirazi had constituted a family trust in terms of the will dated 29.10.1880 and for other reliefs.
18. I have considered the submissions made by learned counsel for the parties and I have also perused the records of the Tribunal. I have also perused the proceedings of the Law Committee as well as the impugned order passed by the Tribunal.
19. The Will dated 29.10.1880 executed by Aga Ali Asker Shirazi discloses that he had bequeathed the following in the following manner :
"FIRSTLY, I give devise and bequeath unto my executor hereinafter named all that my messuage tenement bungalow or house called and known as BAKHARABAD situated and being No.6(six) on the Bellary Road, Bangalore together with the out building yards gardens stabling and all appurtenances thereto belonging to upon and for 22 the uses trusts intents and purposes and with and subject to powers previous and limitations hereinafter mentioned and expressed of and concerning the same that is to say. In trust that the rents and the profits of the said house shall be applied in the first instants to defray the expenses of my funeral and burial and then in the trust in the next place that the rents and profits of the said house "BAKHARABAD" be applied to the extent of `800/- only and no more to the erection and building of a mosque and then in the last place that the rents and profits of the said house be applied from time to time in performance of works of benevolence and charity and also that a portion of the said rents and profits be expended in the Mohorrum Azadaree of Hussain which works of benevolence and charity I leave entirely to the discretion and judgment of my executors."
The testator executed a Codicil on 23.6.1887, the relevant portion of which reads as follows :
" This second Codicil to the Last Will and Testament of Mr. Aga Ali Asker of Bangalore which bears the 9th day of October 1880. Whereas I am desirous of modifying as hereinafter mentioned by the Trust made by the first paragraph of my said 23 Will in respect of messuages tenement bungalow or house are known as Bakharabad situated and being No.6 (six) on the Bellary Road, Bangalore together with the out building yards gardens stabling and all appurtenances thereto belonging to upon and for the uses trusts intents and purposes and with and subject to powers previous and limitations hereinafter mentioned and expressed of and concerning the same that is to say. In trust that the rents and the profits of the said house shall be applied in the first instance to defray the expenses of my funeral and burial and then in the trust in the next place that the rents and profits of the said house and premises be applied as follows, namely one fourth of the same as they occurs to be paid to my nephew and son-in-law, Aga Mohammed Taki or his heirs executors, administrators and assigns for his or their own absolute use and benefit and the remaining three fourth thereof be applied to the extent of Rs.800/- (Rupees Eight Hundred Only) and no more to the erection and building of a mosque and in performance from time to time of works of benevolence and charity and also that a portion of said three fourth of the said rents and profits be expended in the Moharrum Azadaree of Hussain which works of benevolence and charity I leave entirely to the discretion and judgment of my executor" and in all other respects I do confirm my 24 aforesaid Will and Codicil dated the 24th day of October 1885.
In witness whereof I have hereunder set my hands this 22nd day of June 1887."
20. A reading of the Will and codicil undoubtedly indicate that the ''Bakharabad' property was one of the many properties that were owned by the testator in Bangalore city, which he devised to his children. Since the Will discloses that the testator was residing at Hosur road, Shoolay, Bangalore, it can be presumed that the testator was not residing in the ''Bakharabad' property but the same was generating rent/ profit. In so far as the ''Bakharabad' property is concerned, he devised and bequeathed to his four eldest sons and ordained that the rents and profits of the ''Bakharabad' house be applied in the first instance to defray the expenses of his funeral and burial and then in Trust to apply Rs.800/- for the construction of a Mosque and the remaining for the performance of works of benevolence and charity, a portion of which was to be expended on Moharrum 25 Azadaree of Hussain. He conferred absolute discretion upon his executors to decided as to what were the works of benevolence and charity. He appointed his four sons as the executors of the Will.
21. The testator executed a codicil to the Will dated 29.10.1880 by which he rectified it and devised that the rents and profits of ''Bakharabad' property and premises be applied in the first instance to defray the expenses of his funeral and burial and then in Trust to pay 1/4th of the rent and profits to his nephew Aga Mohammed Taqui or his heirs and out of the remaining 3/4th to apply Rs.800/- for the construction of a Mosque and for performance of works of benevolence and charity and a portion of the same be expended in Moharrum Azadaree of Hussain.
22. By virtue of the codicil, the testator made a provision to pay a portion of the rents and profits from ''Bakharabad' property to his nephew Aga Mohammed Taqui or his heirs. Mr.Aga Ali Asker Shirazi expired in the 26 year 1889 and his executors managed the ''Bakharabad' property from then on. Since the 1/4th of the rent was to be paid to Aga Mohammad Taqui or his heirs, this condition had to be complied perpetually.
23. The respondent No.1 issued a notification dated 07.06.1965 under Section 5 of the Act of 1954 notifying the Aga Ali Asker Wakf in respect of the property bearing No.9 (25) Sankey road, High Grounds, premises known as 'Bakharabad' or Bed Ford house. Column No. 3 of the notification dealt with the "nature, class and objects of each Wakf". In so far as 'Bakharabad' property is concerned against column No.3 it was stated as follows :
"1/4th of the total income to be paid to the nephew of Aga Ali Asker, Aga Mohammed Taqui and his heirs and 3/4th performance from time to time of works of benevolence and charity and also that a portion of the said rents and profit to be expended in Moharram Azadari of Hussain."27
24. The column No.4 of the notification dealt with, "name, address and occupation of Mutawalli" and against this, the names of "(i) Dr.M.H. Navin (ii) Mr.Humayun Mirza (iii) Mr.M.M.Hussain (iv)Mr. A.A. Mazid,
(v) Mr. Mahmood Aga" were shown. It is therefore, evident that until the notification dated 07.06.1965 the ''Bakharabad' property was administered by the descendants of Aga Ali Asker Shirazi. After the notification, a complaint was lodged by Dr.Mohammed Aga alleging mis-management by the Mutawallis and sought for settlement of a Scheme. The five Mutawallis whose names appeared in the Notification dated 07.06.1965 opposed the settlement of a Scheme. Later, all the parties agreed that a Scheme of Management may be framed and both of them submitted proposals for the Scheme. This was placed before the Law Committee of then Mysore State Board of Wakfs, Bangalore in L.C.C. No.5/1967. The Law Committee heard the counsel for both the parties and held as follows :
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"We cannot accept the contention of the petitioner because the testator had not appointed any Mutawalli for Wakf. His four sons became the first Mutawallis by virtue of their office as executors. No arrangement was provided in the Will for further management of the Wakf and the first Mutawallis themselves have not settled any Scheeme of Management nor have they nominated their successors. Therefore, the Touliath is not restricted to the descendants of the executors of the Will nor is there any bar to the appointment of a stranger to the family."
The Law Committee framed the following Scheme of Management for Baqarabad Wakf :
1. The Management of the Baqarabad Wakf shall vest in a Committee of Mutavallies consisting of Five Adult male members, but the State Board of Wakfs may raise this number to 7 (seven) if it deems fit.
2. The Mutavallies shall be nominated by the State Board of Wakfs from among descendants of the Wakf, i.e., Late Aga Ali Asker whether they are descended through the male line or female line. But no person who has an interest adverse to the interest of the Wakf shall be so nominated.29
3. The Committee of Mutavallies so nominated shall hold office for three years from the date of their nomination.
4. The State Board of Wakfs shall be component to expand the number of Mutavallies to seven as provided above and two additional members to be added, need not necessarily be from the descendants of the Wakf, but they shall be Shia Muslim of the Imamen Persasion but all things being equal descendants of the Wakif shall be preferred to others.
5. In case of casual vacancies in the Committee of Mutavallies the State Board of Wakfs shall fill up the vacancy by nomination and the member so nominated shall hold office for the remaining period of the terms of the Committee.
6. In case a sufficient number of suitable persons is not available for among the descendants of the Wakif the Board of Wakfs may appoint any other Shia Imamen Muslim as member of the Committee of Mutavallies.
7. The Committee of Muthavallies shall within a fortnight from their nomination meet and elect a President and Secretary from among themselves.
It shall be the duty of the Secretary for the previous term to call this meeting, hold the elections and report the result of the elections to the Board of Wakfs.
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8. The Chairman shall have over all supervisory powers and the Honorary Secretary shall be the Chief Executive Officer of the Wakf.
9. All cheques, diafts, instruments and documents shall be drawn under the joint signatures of the President and Secretary.
10. The Committee of Muthavallies shall frame detailed rules of business of the coubuct of business by the Committee of Mutavallies and allocation of duties and powers such rules shall come into force only after the approval of the Board of Wakfs.
11. It shall be the duty of the Mutavallies to discharge the duties laid upon by law and in particular to develop the sources and income of the Wakf, maintain and preserve it and give effect to the wishes of the Wakif impartially.
12. The committee of Muthavallies shall be subject to and give effect to all the instructions and directions so far been issued by the Board of Waks or may be give hereafter.
13. The parties are requested to submit to the Board a penol of ten names out of which the Board will select and nominate five persons to first Committee of Management."
25. It is noticed that Major Mohammed Mirza, the father of petitioners herein was the donee of the interest of 31 his maternal aunt Shah Biwi, (the daughter and heir of late Aga Mohammed Taqui). He executed a release deed on 03.10.1972 in favour of Mysore State Board of Wakf. He declared in the release deed that he was one of the heirs of Aga Mohammed Taqui having derived it in terms of the Hiba dated 18.08.1954 executed by his maternal aunt Shahbiwi (daughter of late Aga Mohammed Taqui). He declared that in consideration of a receipt of a sum of Rs.19,477.50ps. paid by the State Board of Wakfs, he and his heirs relinquished all the right, title and interest in perpetuity and undertook not to prefer any claim of any description whatever against 'Bakharabad' or any other property/properties was that owned by Aga Ali Asker Shia (P) Wakf.
26. In the meanwhile, the Committee of Mutawallis headed by Humayun Mirza had applied to the respondent No.1 on 10.06.1970 to lease the 'Bakharabad' property. The Wakf Board had unanimously resolved to accord sanction to lease the 'Bakharabad' property to Sri 32 A.Gangaram of Monarch Corporation for a period of 30 years. The lease was published in Mysore Gazette on 20.10.1971. Later, before the expiry of 30 years, the term was extended to 50 years which was approved by the Wakf Board. The term was again extended to 90 years even before the expiry of the period of 50 years and is apparently in force upto the year 2063 and the monthly rent in the year 2022 is Rs.7600-00. The Board of Wakfs by resolution dated 3rd , 4th and 5th of June 1981 revoked the lease and declared it as null and void. This was challenged by the lessee in W.P. No.13379/1981. In the meanwhile, the Board had already filed O.S. No.8041/1980 to declare that the lease deed is in favour of the lessee is invalid. This Court, therefore, quashed the cancellation of the lease and directed the Wakf Board to await the outcome of suit in O.S. No.8041/1980. This order was thereafter unsuccessfully challenged in W.A.No.2163/1990. The way in which the property of the Wakf was handled invited the attention of the government and a report in 33 that regard was submitted by the Backward Classes and Minorities Welfare Committee.
27. The Wakf was administered by the Mutawallis until 26.01.1978 when the respondent No.1 took over the direct Management of the Wakf under Section 43(A) (1) of the Wakf Act, 1954 for a period of one year or till the Managing Committee was appointed, whichever was earlier. Later in terms of an order dated 14.11.1985, a Committee of Mutawallis was appointed by the respondent No.1 for a period of three years. This was challenged by the father of the petitioners (Major Mohammed Mirza) in W.P. No.18767/1985. This Court stayed the operation of the order dated 14.11.1985 and held that "this order does not prevent the Wakf Board from managing the Wakf property which it is stated to be managing from 26.01.1978". Later the writ petition became infructuous as the three year term of the Committee of Mutawallis had expired, and therefore, was disposed off as infructous. 34
28. The respondent No.1 proposed to amend the Scheme of Management dated 16.11.1969 in L.C.C. No.5/1967 since it claimed that upon the relinquishment of the interest by the descendants of the Aga Taqui Shirazi, the members of the Shia community of Bangalore became the beneficiaries, and therefore, issued a Notification dated 02.05.1985 inviting objections and suggestions. Mrs.Gulnaz Begum, Mr. Mohammed Abbas Saleh Shirazi , Major Mohammed Mirza, Mirza Habib Aga, Zia Khaleeli, Mohamed Ali Shirazi filed objections. Therefore, the issue was placed before the Law Committee which registered the case as L.C.C. No.5/1986. The President of Anjuman-e- Imamia who was one of the objectors who claimed that the family of the Wakif should not be included in the Committee of management as they had given away the Wakf property on lease for 90 years to a Five Star hotel for a meagre rent. He claimed that at least two nominees of the Anjuman should be appointed as members of the Committee. For the first time Mrs. Gulnaz Begum and Zeyn Mirza claimed that late Aga Ali Asker did not create a 35 public Wakf but created a private family trust for the benefit of his family and that all the descendants of Aga Taqui Shirazi had not relinquished their rights and therefore, the management of the property should remain with the family members of Aga Ali Asker. Mr. Mohammed Abbas Saleh Shirazi did not file any objections. Mr. Major Mohammed Mirza and Mirza Habib Aga filed joint objections contending that Aga Ali Asker created a Family Trust and not a public Wakf and that it was for the benefit of the family and not for the benefit of the Shia community. They claimed that all the beneficiaries of the Wakif had not relinquished their rights. They claimed that from the time of Wakif till 1979, the property was managed by the members of the family of Wakif and therefore, it had become a custom to allow only the descendants of the Wakif to manage the Wakf. Likewise, about 78 persons supported the contentions of Mr. Major Mohammed Mirza and Mirza Habib Aga.
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29. The Commissioner of respondent No.1 was examined as PW1. He marked Exs.P-7 to 20 which were the certified copies of the relinquishment deeds executed by the descendants of Aga Ali Asker Shirazi. None of the objectors adduced any evidence.
30. The Committee framed the following points for consideration :
i. Whether the Aga Ali Asker Wakf is a Public Shia Wakf or a private family Wakf of the Wakif? ii. Whether the Wakf Board is competent to amend the scheme of management dated 16.11.1969? iii. Whether the members of the family of Wakif have a vested right to manage the Wakf by way of custom or usage?
iv. Whether the relinquishment of their rights by most of the descendants of Aga Taqui Shirazi is legAli valid and alter the circumstances necessitating the amendment of scheme of management? v. Whether there is justification for reducing the reservation in favour of the descendants of Wakif from 100% to 20%?
vi. Does the interest of the Wakf requires the existing scheme of management be amended?37
vii. Are the amendments proposed in Ex.P22 gazetted notification justified and permissible? If not what are the amendments permissible?
31. It held that the Will and the codicil read together indicated an unequivocal transfer of the ownership of 'Bakharabad' in favour of its executors in perpetuity for the clearly specified purpose of erecting a mosque for worship, which is a religious purpose and for performing works of benevolence. Therefore, it held that Aga Ali Asker Shirazi created a Wakf by his Will dated 29.10.1880. It held that no suit or other legal proceeding was filed under any law particularly under Section 6(1) of the Act of 1954, challenging the inclusion of 'Bakharabad' as Wakf in the gazette notification dated 07.06.1965 and therefore, the notification attained finality. The scheme of management dated 16.11.1969 was accepted and acted upon by all the descendants of Aga Ali Asker Shirazi for more than 28 years and therefore, they were estopped from claiming that the property in question was not dedicated to the Wakf. The committee held that after the 38 execution of relinquishment deeds, the Wakf had become 100% public Wakf and therefore, the machinery of management had to be brought in consonance with the changed circumstances. It held that the descendants of the Wakif were complacent and not co-operative and did not take care of the best interest of the Wakf. It held that there were only 5000 members of Shia community in Bengaluru, while the descendants of Aga Ali Asker Shirazi were 500 members and hence they constituted 10% of the total population. Therefore, it held reserving one member out of five to the descendants would be just and equitable. Therefore, the committee held that the management of the Wakf shall vest in a committee of Mutawallis consisting of five adult male members of Shia community of Bengaluru of the Imamen Persasion, all of whom should be permanent residents of Bengaluru. The five members of the committee would be nominated by respondent No.1, of whom one member shall be amongst the descendants of the Wakif. It also held that if there were no suitable persons for appointment then it would be lawful for 39 respondent No.1 to appoint more than one member from amongst the descendants of the wakif.
32. This was challenged by the petitioners before the Tribunal on various grounds. It was contended that -
(i) the testament of the Wakif itself indicated the scheme of management of the property and therefore any other mode of administration through anyone else was unacceptable and was against the wish of the testator;
(ii) that respondent No.1 was not competent to reduce the number of Mutawallis from amongst the descendants of the testator from five to one;
(iii) the testament indicated that it was purely private in nature which authorized the involvement of only the family members and therefore, depriving the family members from 40 the Administration is against the spirit of the testament;
(iv) That the estate was managed by the testator during his life time and thereafter, from 1899, it was managed by his sons and then their descendants till it was brought under the direct management on 26.01.1978.
Therefore, the descendants had a hereditary right to continue to manage the estate as Mutawallis;
(v) that the testator had bequeathed only the income from the estate but the property was to be administered by his executors / sons. Therefore, it is the descendants alone who can administer the properties and no person other than the descendants are entitled to interfere in the management;
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(vi) that the appointment of the respondent No.3 was illegal and that he was malversing the income of the property;
(vii) that the respondent No.1 shall exercise powers in conformity of the directions of the Wakif;
(viii) that the relinquishment by certain beneficiaries in favour of the respondent No.1 is impermissible as the testator desired that the beneficiaries shall continue to enjoy the benefits perpetually;
(ix) that the induction of non descendants of the testator into the committee of Mutawallis tantamounts to depriving the legitimate rights of the descendants;
(x) that the direct management of the estate by the respondent No.1 was illegal.
33. However, the petitioners did not challenge the legality of the notification dated 07.06.1965 or the earlier 42 scheme of management in L.C.C. No. 5/1967 or the action of the Wakf Board taking over direct management of the Wakf.
34. The Tribunal rejected the appeal based on the following reasoning:
(i) that the creation of the Wakf was lawful and Ex-P2 satisfies the definition of "Wakf" as defined under Act of 1954 and therefore the descendants are estopped from contending to the contrary;
(ii) that the construction of mosque, observance of Azadaree during Moharrum and works of benevolence and charity are all to the benefit of the members of the community in general;
(iii) that the codicil does not make the
entire Wakf a "Wakf Alal Aulad" or a private
family trust ;
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(iv) that the scheme of management of
the Wakf was in force from the year 1967 for nearly 28 years;
(v) that the respondent No.1 has the power to amend the Scheme of management under Section 69(4) of the Act of 1995;
(vi) that the wakif had not prescribed the management of the Wakf property and that it shall always remain with the descendants;
(vii) that the enquiry conducted by the Law Committee was based on the records and looking into the interest of the Wakf and the interest of the Shia community of Bangalore.
35. A perusal of the will and codicil clearly indicates that the bequeath was only in respect of the rent/ profits accruing from the 'Bakharabad' property. It definitely did not deal with the interest in the property itself. Therefore, in the absence of any stipulation as to how the 'Bakharabad' property should devolve, the same 44 would be determined by the law of succession as applicable to Shia muslims. But what needs to be noted is that the testator had dedicated the rent and profits for a religious cause and so long as the property generates income or profit, the same shall be utilised for the purposes mentioned in the will. Therefore, for all times to come, the property shall always remain shackled to meet the wish of the testator. The notification dated 07.06.1965 issued by the State Government also was only in respect of the rent/ profits from the 'Bakharabad' property and nothing else. The descendants of the family of the testator have not challenged the notification dated 07.06.1965 or the subsequent framing of a scheme of management in L.C.C. No. 5/1967 and the consequent taking over of direct management of the Wakf by the respondent no.1. The descendants of the Wakif entered into a lease agreement leasing the 'Bakharabad' property for 90 years and have allowed a five star hotel to be operated, which makes it more than evident that the descendants of the testator are not in any way interested in being appointed as the 45 mutawallis in the committee of management of the Wakf. It is precisely for this reason that none of them have challenged the notification dated 07.06.1965 and the consequent proceedings initiated by the respondent no.1.
36. In the case on hand, the father of the petitioners, was the donee under a gift deed dated 18.08.1954 executed by Shah Biwi, who was the descendant of Aga Mohammad Taqui. Later, he executed a relinquishment deed dated 03.10.1972 in favour of the respondent No.1 by receiving a sum of Rs.19,477.50ps. He relinquished all his interest in 'Bakharabad' property and declared that he would thenceforth not make any claim in respect of the said property. Under the circumstances, the petitioners have no locus standi to contest that the testator had created only a private family trust and not a Public Wakf. This question can be urged only by the legal heirs of the testator and none else. Therefore, it is left open to be considered in an appropriate case when any legal heir of the testator, 46 having a subsisting right, makes a claim in an appropriate Court of law.
37. Now coming to the question whether the petitioners claiming to be the descendants of the testator could challenge the modification of the scheme of management, on the ground that the respondent no.1 cannot allow non-descendants to be part of the committee of management, it is necessary to note that the scheme of management in L.C.C. No. 5/1986 was framed in exercise of the power under Section 15(2) of the Wakf Act, 1954. Section 69(4) of the Wakf Act, 1995 confers power on the respondent no.1 to modify any scheme of management. Therefore, the power of the respondent no.1 to modify a scheme of management cannot be doubted.
38. However, the question is whether the respondent no.1 was justified in restricting the descendants of the testator in the committee of Mutawallis to one as against five in the earlier scheme of management.
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39. The respondent No.1 has proposed the modification on the basis of the relinquishment deeds executed by the descendants of Aga Mohammad Taqui and has claimed that by virtue of such relinquishments, the members of the Shia community of Bangalore have an interest in the Wakf and that there are 5000 Shia muslims in Bangalore while the descendants of the testator are 500 in number and therefore constitute 10 % of the population. Thus in order to ensure larger participation, the respondent No.1 has modified the scheme of management and constituted a committee of Mutawallis comprising of four members of the Shia community in Bangalore and one member from amongst the descendants of the testator. The respondent No.1 has however, lost sight of the fact that the Wakf is only in respect of the rent/ profits from the property while the descendants continue to be the lawful owners of the property as there is no dedication of the property itself and no Wakf is created in that regard. However, the petitioners have no subsisting right in the property in view of the relinquishment deed executed in 48 favour of the respondent No.1. Therefore, this question too is left open to be decided in an appropriate case, if a legal heir having any subsisting right approaches a competent court of law.
40. In that view of the matter, this Revision Petition lacks merit and the same is dismissed. Any observations contained herein shall not affect the rights of any other descendants of Aga Ali Asker Shirazi to establish that the 'Bakharabad' property was not dedicated to any religious or charitable purposes and that the notification dated 07.06.1965 does not affect his or her right in respect of the 'Bakharabad' property. This is, however, subject to all limitations prescribed under the Act of 1954 and the Act of 1995.
Sd/-
JUDGE hnm