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7. Sri Somesh Khare, learned counsel for the petitioner submitted that transfer of property, which belong to Wakf, by way of sale shall not be valid without previous sanction of Wakf Board notwithstanding anything contained in deed or instrument, if any. He further contended that it is not that any Wakf property can be sold but only such kind of property of Wakf which contains a stipulation in Wakfnama that for the interest of beneficiaries for whom Wakf is created, if necessity arise, property may be alienated by way of sale etc., and only such property can be transferred by sale and not otherwise and that too after a previous permission from Board and not. In respect to other Wakf, once a Wakf is created, it is always a Wakf and therefore, even a Mutwalli has no authority or power to transfer immoveable property constituting a wakf, to any third party. Any such sale is patently illegal and void. He submits that Appellate Court has completely failed to consider the matter on this aspect and therefore the impugned judgment is patently illegal.

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58. The statute, therefore, lays down a complete embargo on transfer of immovable property of wakf without previous sanction of Board. The power of getting the property back if transferred in contravention of Section 49-A conferred upon Board leaves no manner of doubt that the import of Section 49A is obligatory and mandatory. The violation thereof makes the transaction wholly illegal and unauthorised.

59. A Mutwalli, being not owner hence not competent to alienate a property constituting wakf except of a limited category of wakfs. Generally, a wakif of immoveable property as and when make wakf, it is immediately become the property of almighty of which Wakif ceases to have any authority and that being so, even a Mutwalli cannot have any right or authority to act in a manner so as to change nature of wakf by itself. However, in respect to such category of wakf, where the Wakif has created wakf with certain conditions etc., for example Wakf alal aulad, where wakf is created for benefit of member of family or individual etc., if an stipulation has been made that wakf property, if required for benefit of person for whose purpose aforesaid wakf has been created need to be sell out or otherwise alienated, the same would be permissible but it will not be valid unless a previous permission of Board is obtained.

60. The purpose of previous permission contained in Section 49A is that wakf property may not be misused by Mutwallis. The Board constituted under Uttar Pradesh Muslim Wakfs Act, 1960 is for the purpose of maintenance and management of wakfs in the State and to protect wakf property from mismanagement, misappropriation, misfeasance etc. It is for this reason in respect to such property constituting wakf, which is liable to be transferred in terms of stipulations contained in document creating wakf, a previous permission is mandatory but where wakf property is in-alienable, even previous permission will not permit transfer of such property of wakf.

70. In the present case, first of all, it was to be necessary to be seen whether wakf was such which permits or contain stipulation alienation of its property. Only if such a condition is provided in the Wakfnama, its transfer could have been permitted and not otherwise. Mutwalli, in absence of any such condition, is wholly incompetent to transfer a property of wakf to anyone else. Having said so, once it finds that property is alienable, only in such case the Court shall proceed to find out whether previous consent or permission of Board has been obtained or not. For the purpose of proving consent or permission by the Board, document granting such sanction by Board is the only evidence and there cannot be any assumption on this aspect. A transfer of property of wakf unless a previous sanction is shown shall be invalid. That is the declaration by law and that too by a provision which commences with non substantive clause. In my view, this provision is mandatory. Its compliance has to be shown without any ambiguity.