Madras High Court
S.M. Pitchaiyammal vs Tamil Nadu Wakf Board Rep. By Its ... on 30 August, 2002
Equivalent citations: (2002)3MLJ625
JUDGMENT K. Sampath, J.
1. Both the second appeals are disposed of by the following common judgment as the substantial questions of law involved are common to both the matters.
2. The Tamil Nadu Wakf Board represented by its Secretary filed various suits before the District Munsif Court, Tiruchirapalli, averring as follows:
The properties set out in the different plaints had been dedicated for performing pious, religious and charitable deeds; they belong to a Wakf, the administration of which is governed by Central Act 29 of 1954 and as the properties had been alienated by the descendants of the settlors under various sale deeds to the defendants in the different suits, the suits were filed for a declaration that the sales were invalid in law, that the properties by their very nature, being inalienable and the alienations being beyond the powers of alienors, cannot bind the Wakf and that in those circumstances, for declaration that the suit properties in all the suits are Wakf properties and for possession of the same to the plaintiff on behalf of the Wakf.
3. The defence set up was as follows:
There was no valid Wakf in respect of the suit properties; there was no dedication; there was also no final notification by the Wakf Board; the plaintiff has no title; the suit properties were the exclusive properties of the vendors and the alienations were valid; the suit claim was also out of time. The Wakf Board also could not claim the suit properties during the existence of any male or female heir in the line of settlor and the suits were premature; the alleged Wakf was not a public Wakf or notified as such after the statutory enquiry prescribed under the Act; the charities or religious deeds mentioned in the deed had not been performed at any time out of the income from the suit properties. The suit properties had all along been treated as absolute private properties by the members of the family of Ibramsa Rowther. The alleged Wakf, if any, was illusory, illegal, invalid and had not come into effect. The alienees had purchased the properties from the descendants of Ibramsa Rowther for valuable consideration without notice of any alleged Wakf. The suit properties had been held as private properties by the vendors' families for over 40 years. There was a suit filed in O.S.No.6/59 before the Sub Court, Tiruchirapalli, and in that suit the descendants of Ibramsa Rowther were allotted various shares over the suit properties in a decree passed in 1965 and the members of Ibramsa Rowther's family took possession of the respective shares allotted to them. In that suit, it was held that the suit properties and other properties claimed to be Wakf were not Wakf properties, but private properties of the members of Ibramsa Rowther's family. The present suits were barred by limitation and by adverse possession. Ibramsa Rowther had no right to execute any deed much less Wakf Settlement Deed in respect of the suit properties and other properties as he was doing business with his sons and the business was a joint business and Ibramsa Rowther had only a small share in the suit properties. The Settlement Deed by Ibramsa Rowther contained a number of void and unenforceable clauses. The suits deserved to be dismissed.
4. On the above pleadings, the trial Court framed the necessary issues and on the oral and the documentary evidence, held that the properties in the suits were Wakf properties, that they constituted a Wakf-alal-aulad and the suits as framed were maintainable, that the suits were not bad for non-joinder of necessary parties, that the decision in O.S.No.6/59 on the file of the Sub Court, Tiruchirapalli, could not create any title in the vendors, because the properties were Wakf properties, that the said suit could not bind the plaintiff Wakf Board as it was not a party to the said suit, that the plea of bona fide purchaser for value without notice could not be accepted, that the defendants in the various suits had not prescribed for title by adverse possession and that the suits were not barred by limitation. So holding, the learned District Munsif by a common judgment and decree dated 29-9-1977 decreed the suits. Aggrieved, the defendants filed appeals. The Appellate Court having confirmed the decision of the trial Court, the present second appeals have been filed.
5. We are concerned only with O.S.No.264/75 and O.S.No.382/75. Against the decision in O.S.No.264/75 an appeal before the Appellate Court was filed in A.S.No.32/78. The other appeal arises out of O.S.No.382/75 on the file of the District Munsif and A.S.No.35/78 before the Appellate Court.
6. At the time of admission, the following substantial questions of law were raised for decision in the second appeals:
"Whether the Courts below erred in not rejecting the suit as barred by res judicata in view of judgment in O.S.No.6/59?
2. Whether the Courts below erred in holding that joint ownership and enjoyment is unknown to Mohammadan law?
3. Whether the judgments of the Courts below are sustainable in view of Division Bench ruling reported in 84 Law Weekly 261 (D.B.)?
4. Whether the Courts below erred in holding that the suit is barred by limitation?"
7. In my view, the second appeals have to be decided on the basis of the earlier decision of this Court in THE TAMIL NADU WAKF BOARD BY ITS SECRETARY VS. SANNASI MUNAYATHIRIYAN (94 LW 511 = 1981(2) MLJ 176). The said decision arose out of a Wakf-nama executed by the same Ibramsa Rowther. There were alienations. The trial Court found after enquiry that the suit property was a Wakf property. The lower Appellate Court also confirmed the finding. However, it held that the Wakf was a private Wakf and possession and management could only be in the family of the settlor, viz. Ibramsa Rowther. In that view, the lower Appellate Court came to the conclusion that the Wakf Board was not entitled to recover possession of the suit property. The learned Judge observed that the effect of the decision of the lower Appellate Court was to hold that the alienation was not proper. Then the learned Judge went on to decide the question whether in the context of the facts of that case, the Wakf Board was entitled to recover possession of the property. On an interpretation of the document, which is also the subject matter of the present suits, appeals and second appeals therefrom, the learned Judge held that the entire document had to be taken as creating a Wakf and the properties would come within the purview of the Wakfs Act, 1954 and in that view, the learned Judge held that the Wakf Board was entitled to recover possession of the property, that the alienation had been made by a person who was not entitled to alienate the property and the alienation would not be binding on any one on account of its being invalid and illegal and no title would pass.
8. I have therefore no hesitation in dismissing the second appeals. However, it is my duty to refer to the Bench decision relied on and also mentioned in the substantial questions of law framed.
9. In THE MADRAS STATE WAKF BOARD REPRESENTED BY THEsECRETARY, MADRAS VS. V. MOHAMED MAHIM (84 LW 261) a Division Bench of this Court, while deciding the scope and effect of a document, held that the entire dedication under the document was not a Wakf within the meaning of Section 3(1) of the Wakfs Act, 1954, but only that part of it, which related to the performance of certain religious and charitable purposes out of the income from the properties covered by that document. The Bench noticed the distinction between a Wakf and a Wakf-alal-aulad and observed as follows:
"Where it is a case of Wakf-alal-aulad, the entirety of the property is not a Wakf within the definition, but only that part of the dedication of the property for any purpose recognised by Muslim Law as pious, religious or charitable."
As the document in that case provided for the maintenance and support of the donor's brother's son and his descendants and failing which, her brother's daughter and her descendants, it was a Wakf-alal-aulad.
10. I am afraid that the decision will not help the case on hand as in the present case, as pointed out by the learned Judge in SANNASI MUNAYATHIRIYAN's case (94 LW 511 = 1981(2) MLJ 176), there is no separate dedication for pious, religious and charitable purposes and for purposes of the maintenance of the members of the family and therefore, the entire document has to be taken as creating a Wakf and the properties would come within the purview of the Wakfs Act, 1954. Unless it is possible to determine the extent to which the properties had been dedicated for pious, religious and charitable purposes, it was held that the entire properties will have to be deemed to be dedicated to God and subject matter of the Wakf. The learned Judge followed the decision of the Allahabad High Court in U.P. SUNNI CENTRAL BOARD OF WAKF AND ANOTHER VS. SMT. HASAN JEHAN BEGUM AND ANOTHER .
11. There is no partial dedication. Ibramsa Rowther constituted himself as the manager of the properties covered by the original of Ex.A-5. There is a solemn statement in the deed that all the properties settled under the deed are his self-acquired properties and they are in his possession. There is a provision in the document against alienation, which is consistent with a Wakf.
12. It was argued on behalf of the appellants that under the Wakf Deed, substantial portion of the income of the properties had been allotted to the heirs of the executant and only a minor share had been set apart for the pious and charitable object. One of the conditions of the Wakf is that from the income of the Wakf property, a portion is to be used for supply of gruel to poor Muslims in the mosque on Tanjore Road during Ramzan time, distribution of sweets on the 27th day of Ramzan and distribution of clothes to the persons employed in the mosque at the time of Ramzan and Bakrid. Out of 8-1/2 shares of the income from the Wakf, the Wakf has reserved half a share towards reserved funds, one share for doing charity at the time of Ramzan and 7 other shares are settled in favour of the children of the said Ibramsa Rowther. The Wakf Deed also directed the manager to take some amount as remuneration for managing the property. It would be a Wakf within the meaning of Section 3(1)(iii) of the Wakfs Act for the purpose of control of the Wakf Board. In Mohammadan Law, essentially and substantially there is no distinction between public Wakf and private Wakf. They are treated alike and in the instant case, as pointed out in SANNASI MUNAYATHIRIYAN's case, there is no partial dedication. The learned Judge, on an interpretation of the same document as has been marked in the present case as creating a Wakf, has held that there is an out and out dedication.
13. Consequently, I hold that the decision of the Bench does not apply to the facts of the present case and is clearly distinguishable and the substantial questions of law are answered against the appellants in each of the second appeals. The second appeals fail and they are dismissed. However, there will be no order as to costs. The connected miscellaneous petitions C.M.P.Nos.16843 and 16844/89 are also dismissed.