Full Judgment Text
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CASE NO.:
Appeal (civil) 1559 of 2007
PETITIONER:
Tamil Nadu Wakf Board
RESPONDENT:
Larabsha Darga Panruti
DATE OF JUDGMENT: 23/11/2007
BENCH:
Tarun Chatterjee & P. Sathasivam
JUDGMENT:
JUDGMENT
P. Sathasivam, J.
1) This appeal is preferred by the Tamil Nadu Wakf Board
represented by its Chief Executive Officer, Chennai against the
final judgment dated 25.6.2004 and decree dated 28.6.2004
passed by the High Court of Madras in Second Appeal No. 641
of 1996 whereby a learned Judge of the High Court allowed
the second appeal reversing the judgment and decree of the
first appellate Court and restoring the judgment and decree of
the trial Court.
2) The facts which are necessary for the disposal of this
appeal are as follows:
Originally the suit property was Wakf property being a part of
a Wakf property belonging to one Noor Mohammedsha Aulia
Darga. One Bahadursha, the 5th Janishan of Noor
Mohammad Shah Khadari Darga, Panruti conveyed the suit
property to his disciple Shabansha and he was in possession
and enjoyment of the same through his disciple Larabsha.
Larabsha conveyed the suit property to his wife Khathija Bi by
way of a Hibba with the intention of doing certain pious,
religious and charitable purposes. Khathija Bi conveyed the
suit property to her grandson Syed Umar. After the death of
Syed Umar, his wife Safia Bi was managing the suit property
and was performing the said pious, religious and charitable
purposes. In 1978, Safia Bi filed O.S. No. 189 of 1978 in the
sub-Court, Cuddalore for declaration that the suit property is
not wakf property and it is their private property. The said suit
was dismissed holding that the suit property is wakf property
belonging to Larabsha Darga. Against the said order, Safia Bi
filed an appeal being A.S. No. 108 of 1980 in the District
Court, Cuddalore and the same was dismissed on 22.4.1983.
Aggrieved by that judgment and order, Safia Bi filed a second
appeal being S.A. No. 1104 of 1983 in the High Court. In the
meanwhile, on 8.8.1985, Safia Bi died and Adbarbasha and
Abdulsalam were impleaded collusively and fraudulently.
Heeralal and Khaleel Basha filed a petition in A.No. 20 of 1985
before the Tamil Nadu Wakf Board, Madras to recognize and
appoint them as hereditary Muthavllis to Larabsha Darga and
its properties and the Wakf Board after holding enquiry
appointed the respondents herein-plaintiffs as joint
Muthavallis recognizing their right to be hereditary trustees
and legal representatives of late Larabsha. The High Court on
10.1.1990 dismissed the second appeal holding that the suit
property is wakf property and not a private trust property.
Against the said dismissal, S.L.P. (c) No. 2486 of 1990 was
filed by the respondents herein/plaintiffs before this Court
and the same was dismissed. Respondents herein filed O.S.
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No. 20 of 1992 in the sub-Court, Cuddalore for a declaration
that the suit Darga and its property belongs to a wakf i.e.,
Wakf-alal-aulad, and the Wakf Board had no jurisdiction to
appoint Muthavllis for the said Darga and for injunction
restraining the Wakf Board from interfering with the suit
Darga and its property except claiming contribution from the
net income of the wakf. The trial Court decreed the suit
holding that the suit Darga and its property belong to a private
wakf. Aggrieved by the said order, Tamil Nadu Wakf Board
filed an appeal being A.S. No. 206 of 1994 in the District
Court, Cuddalore and the same was allowed holding that the
suit Darga and its property do not belong to a private wakf.
Against that order, the respondents herein filed a second
appeal being S.A. No. 641 of 1996 in the High Court. The
High Court allowed the second appeal reversing the judgment
of the first appellate Court and restoring the judgment of the
trial Court. Hence the present appeal is filed by the Tamil
Nadu Wakf Board by way of special leave petition before this
Court.
3) Heard Mr. J.M. Khanna, learned counsel appearing for
the appellant and Mr. P.S. Misra and Mr. K. Samidurai,
learned senior counsel appearing for the respondents.
4) Mr. J.M. Khanna, learned counsel for the appellant-Tamil
Nadu Wakf Board mainly contended that in view of the
decision in the earlier proceedings filed by Safia Bi and the
ultimate decision in Second Appeal No. 1104 of 1983 which
was affirmed by this Court, the subsequent proceedings in
respect of the same issue/property cannot be proceeded with
and hit by the principle of res judicata. On the other hand Mr.
P.S. Misra, learned senior counsel for the respondents after
taking us through the earlier as well as the present
proceedings submitted that the decision rendered therein has
no bearing to the issue raised in the subsequent proceedings.
He also contended that in view of Ex.A-22 (proforma report)
and other materials, the conditions/objects therein, the
plaintiff had proved their case that the suit property belongs to
Wakf-alal-aulad and the trial Court rightly decreed the suit
though the lower appellate court wrongly concluded as it
belongs to Wakf property and the High Court allowed the
appeal and restored the decree of the trial Court.
5) In order to understand the dispute raised, it is relevant to
refer the geneology of the family of late Larabsha referred to in
the plaint in O.S. 20 of 1992 on the file of the subordinate
Judge, Cuddalore.
LARABSHA (HUSBAND) DIED
Kathija Bi (Wife) (Died)
|
|
Syed Magdoom (Son)
(died)
| | | |
| | | |
______________________________ | |
| |
| Safia Bi
| (died on 8.8.1985)
| Issueless
_______________________
| |
| |
Sainath Syed Ali
Hi (died)
_________ __________
| |
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| |
(Son) (Son)
Khaleel Basha Heeralal
(2nd Plaintiff) (1st Plaintiff)
The plaintiffs therein prayed for a decree declaring that
Larabsha Dharga and its properties described in the schedule
appended in the plaint are a private Wakf/Wakf-alal-aulad.
They also prayed for declaration that Hiralal and Kalilal Basha
(plaintiffs) are the hereditary trustees of Larabsha Dharga and
also prayed for permanent injunction. The learned trial Judge
after considering the relevant materials both oral and
documentary particularly on the basis of Ex. A1 and A2
granted decree as prayed for in favour of the plaintiffs. In the
appeal, namely, A.S. 206 on the file of District Court,
Cuddalore filed by Tamil Nadu Wakf Board, the appellate
Judge basing reliance on earlier judgment of the High Court in
Second Appeal No. 1104 of 1983 (Ex. A3) accepted the stand of
the Wakf Board and concluded that the suit property is a Wakf
property and not private Wakf-alal-aulad as claimed by the
plaintiffs. The said decision was taken up to the High Court
by way of Second Appeal No. 641 of 1996 by the plaintiffs.
The High Court framed the following substantial question of
law:-
\023Whether the lower appellate court had failed to consider absence
of specific plea of denial in the written statement that the said
Dharga is not a private Wakf\024
Based on the same, heard the argument on either side and
finally by the impugned judgment allowed the appeal and
restored the decree of the trial Court. In the light of the
controversy between the parties by way of suits, first appeals
and second appeals, we verified the reliefs prayed in the earlier
proceedings, stand taken by both the parties and ultimate
decision including the one taken by the High Court in second
appeal No. 1104 of 1983.
6) Section 3 (l) of the Wakf Act, 1954 defines \023wakf\024 as
under:
(l) \023wakf\024 means the permanent dedication by a person
professing Islam or any other person of any movable or
immovable property for any purpose recognized 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 mashrut-ul-khidmat, muafies,
khairati, qazi services, madadmash for any purpose
recognized by the Muslim law as pious, religious or
charitable; and
(iii) a wakf-alal-aulad;
and \023wakif\024 means any person making such dedication;
Provided that in the case of a dedication by a person
not professing Islam, the Wakf shall be void if, on the death
of such person, any objection to such dedication is raised by
one or more of his legal representatives;\024
The plaintiffs claim that the suit property belongs to private
Wakf, Wakf-alal-aulad and it is not a public Wakf. On the
other hand, it is the specific stand of the Wakf Board the same
is a public Wakf. As said earlier, the High Court heavily relied
on Ex.A-22 which is a proforma maintained by the Wakf
Board. The learned Judge has extracted all the details/entries
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made in the proforma. Those details are available in the High
Court\022s judgment and we perused the same. It mentions that
the object of the Wakf is for the support of feeding the fakirs
and lighting the tomb of Larabsha and to do fateah. It further
shows that these services are to be rendered without
alienating the properties. Name of the beneficiaries are noted
as \023Mrs. Safia Bi, wife of Syed Umar, Larabsha Dharga.\024 In
column-9, the rule of succession, it is stated that \023hereditary
as per T.D.\024 It further shows that out of the income derived
from the suit property, a portion of the same is meant for
pious, religious and charitable purposes and remaining was
used for the maintenance of the family. Column-17 of the
remarks states that originally R.S.No.24, 205 acres dry belong
to Nur Mohammed Dargah, Panruti. One Inayath Shah a
sixth successor Jainishin conveyed this land containing
houses and shops to one of his disciples shabansha by means
of settlement (\021Hibba\022) in 1939. This Shanbans, in his turn
made a settlement in favour of Larabsha who is the paternal
grand father of the Husband of Safia Bi, who is now enjoying
the lands. No accounts are maintained. Only Fateah is done
on every Thursday evening and the tomb is lighted daily. At
present Safia Bi is the Muthavalli. A few rupees are spent for
the Dargah and the balance is utilized for the maintenance of
the family. The above details furnished in the proforma clearly
reveal that succession to the office of Muthavallis is by
hereditary and the income has got to be spent for pious,
religious and charitable purposes and a portion was also used
for management of the family.
7) As rightly observed by the High Court, inasmuch as a
portion of the income is to be spent for the family apart from
pious, religious and charitable purposes, it satisfies the
character of a private Wakf i.e. Wakf-alal-aulad. The said
document i.e. Ex.A-22 also supports the claim of the plaintiffs
that they are the hereditary Muthavallis of the private Wakf.
These aspects have been fully considered and rightly
concluded by the trial Judge as well as the High Court. On
the other hand, as rightly pointed out by learned senior
counsel for the respondents/plaintiffs, the lower appellate
Court on mis-construing the decision in S.A. No.1104 of 1983
wrongly allowed the appeal. As observed earlier, in second
Appeal No. 1104 of 1983, the High Court had no occasion to
consider whether it is a private Wakf or a public Wakf, but, on
the other hand, in the earlier suit, the plaintiffs claimed the
suit property as their private property and not as private Wakf
property and only in the said circumstance the High Court in
Second Appeal No. 1104 of 1983 rendered the finding that the
suit property is a Wakf property and it is not a private trust
property. Inasmuch as in appreciation of acceptable material,
the trial Court as well as the High Court arrived at a
conclusion that the suit property is a private Wakf and not a
private property, we are in agreement with the conclusion of
the High Court that the decision in S.A. 1104 of 1983 has no
bearing to the issue in the latter proceeding. The High Court
has also rightly concluded from Ex.A1 that there is no
indication that the Wakf is a public Wakf and Hibba only
indicates that certain things have got to be carried out in
respect of pious, religious and charitable purpose and
proforma Ex.A22 supports the claim of the plaintiffs. Looking
at any angle, in the light of the materials placed particularly
additional documents Ex.A22, A23 and A24 which were
received on the basis of an application which was ordered on
20.04.2004, we are in entire agreement with the conclusion
arrived by the High Court and do not find any valid ground for
interference.
8) In the light of the above discussion, the appeal fails and
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the same is dismissed. No costs.