Full Judgment Text
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PETITIONER:
BOARD OF MUSLIM WAKFS, RAJASTHAN
Vs.
RESPONDENT:
RADHA KRISHNA & ORS.
DATE OF JUDGMENT24/10/1978
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
SINGH, JASWANT
PATHAK, R.S.
CITATION:
1979 AIR 289 1979 SCR (2) 148
1979 SCC (2) 468
CITATOR INFO :
R 1981 SC2198 (16)
RF 1992 SC1083 (10,11,12,15)
ACT:
Wakfs Act, 1954-Ss. 4 and 6-Scope of-Commissioner of
Wakfs, if had jurisdiction to hold enquiry whether certain
property was wakf property- Failure of stranger to file suit
within time allowed by s. 6(1)-Special rule of limitation-If
applicable to him-Inclusion of property in the list of
wakfs- If final and conclusive.
HEADNOTE:
To provide for the better administration and
supervision of Wakfs, the Wakfs Act 1954, sought to bring
the management of wakfs under the supervision of the State.
The Act envisages the appointment of a Commissioner of Wakfs
for the purpose of survey of wakf properties existing at the
time of the commencement of the Act. The Commissioner is
enjoined to submit his report to the State Government after
making such enquiries as he may consider necessary. While
making enquiries the Commissioner is invested with powers as
are vested in a Civil Court under the Code of Civil
Procedure. Section 6 of the Act provides that if any
question arises as to whether a particular property
specified in the list of wakfs published under s. 5(2) was
wakf property or not and such other related matters, the
Board of Muslim Wakfs or the Mutawalli of the wakf or any
person interested therein may institute a suit in a Civil
Court for decision of the question.
Respondents 1 and 2 were mortgagee-purchasers of the
property in dispute, which was claimed to be wakf property.
Respondent. No. 3 in his application to the Commissioner of
Wakfs alleged that the property in dispute being wakf
property its transfer by the mutawalli to the respondents
was invalid and prayed that the property be taken over by
the wakf committee. While denying that the property in
dispute was wakf property respondents 1 and 2 contended
before the Commissioner that he had no jurisdiction to make
an enquiry whether a particular property was wakf property
or not. The Commissioner rejected these contentions and
submitted a report to the State Government. On receipt of
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the Commissioner’s report the Board of Muslim Wakfs included
the property in the list of wakfs in the Stat.
In the respondents’ Writ Petition, the High Court held
(i) that the jurisdiction of the Board of Wakfs was confined
to matters of administration of the wakfs and not to
adjudication of questions of title and that the Act did not
invest either the Board or the Commissioner with power to
decide the question whether a property belonged to a wakf or
not and therefore the Commissioner had no jurisdiction under
s. 4(3) of the Act to enquire whether or not the property
was wakf property and (ii) that the failure of a stranger to
the wakf to institute a suit in a court of competent
jurisdiction within a period of one year on the question
whether a particular property was wakf property or not could
not make the inclusion of such property in the list of wakfs
final and conclusive.
149
In appeal to this Court it was contended on behalf of
the appellants that (i) the words "for the purpose of
making a survey of wakf properties" are wide enough to
confer power on the Commissioner to investigate and
adjudicate upon the question whether a particular property
was or was not wakf property and (ii) failure of the
respondents to file a suit within the time allowed by s,
6(1) made the inclusion of the property in the list of wakfs
final and conclusive. The word "therein" occurring in "any
person interested therein" in s. 6 ( 1 ) qualifies the words
"wakf property" and not "person interested in the wakfs" as
wrongly assumed by the High Court.
Dismissing the appeal to this Court
^
HELD: While the High Court was right in determining the
scope of s. 6(1), it was clearly in error in curtailing the
ambit and scope of enquiry by the Commissioner under s. 4(3
) . [160 E]
1. (a) The Commissioner of wakfs acted within his
jurisdiction in holding the disputed property to be wakf
property. [168 C]
(b) The whole purpose of the survey of the wakfs by the
Commissioner under s. 4(1) is to inform the Board of Wakfs
as to existence of the wakfs in the State in order that all
such wakfs should be brought under the supervision and
control of the Board. [160 D]
(c) The words "for the purpose of making a survey" are
the key to the construction of the section. If the
Commissioner has the power to make a survey it is but
implicit that in the exercise of such power he should
enquire whether or not a wakf exists. The making of such an
enquiry is a necessary concomitant of the power to survey.
The High Court was, therefore, wrong in holding to the
contrary. [162 A-Bl
(d) It would be illogical to hold that while making a
survey of wakf properties existing in the State the
Commissioner of wakfs should have no power to enquire
whether a particular property was wakf property or not.
After making the survey the Commissioner is required to
submit a report to the State Government in regard to the
several matters referred to in clauses (a) to (f) thereof.
There may be a dispute as between the Board, the mutawalli
or a person interested in the wakf, as regards the existence
of wakf i.e. whether a particular property is wakf property,
whether it is a Shia wakf or a Sunni wakf, the extent of the
property attached to the wakf, the nature and object of the
wakf and so on. While making such an enquiry, the
Commissioner is invested with the powers vested in a Civil
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Court under the Code of Civil Procedure, 1908. In view of
the comprehensive provisions contained in the Act the
enquiry which the Commissioner makes is not purely of an
administrative nature but partakes of a quasi-judicial
character in respect of persons falling within the scope of
s. 6(1). [161 F; C-E]
(e) The power of the Commissioner to survey wakf
properties or to enquire and investigate into the several
matters set out in sub-section (3) cannot be curtailed by
taking recourse to s. 4(S). Sub-section (S) only lays down
that, if during an enquiry any dispute arises as to whether
a particular wakf is a Shia wakf or Sunni wakf and if there
are clear indications in the deed of wakf as to its nature,
the dispute shall be decided on the basis of
150
such deed. It, therefore, makes the wakf deed conclusive as
to the nature of the wakf Sub-section (5) cannot be
projected into sub-section (1) determining the question
whether a certain property is a wakf property or not. Nor
does it enter into an enquiry as to several of the matters
adverted to in some of the clauses of sub-section (3). [162
D-E]
(f) Moreover s. 6 and s. 6(1) clearly envisage that the
enquiry by the Commissioner was not confined to the question
as to whether a particular wakf was a Shia Wakf or Sunni
Wakf. It might also embrace a dispute is to whether a wakf
existed or not. [162 H]
2. (a) Where a stranger is a non Muslim and is in
possession of certain property, his right. title and
interest therein cannot be put in jeopardy merely because
the property is included in the list of wakfs. Such a person
is not required to file a suit for a declaration of his
title within a period of one year. The special rule of
limitation laid down in proviso to s. 6(1) is not applicable
to him. In other words, the list published by the Board of
Wakfs under s. 5(2) can be challenged by him by filing a
suit for declaration of title even after the expiry of the
period of one year, if the necessity of filing such suit
arises. h 167 A-B]
(b) The word "therein" occurring in s. 6(1) after the
words "any person interested therein" must necessarily refer
to the "Wakf" which immediately precedes it. It cannot refer
to the wakf property. Section 6 ( 1 ) enumerates the persons
who can file suits and also the questions in respect of
which such suits can be filed. In enumerating the persons
who are empowered to file suits under this provision only
the Board, the mutawalli of the Wakf; and "any person
interested therein", thereby necessarily meaning any person
interested in the wakfs, are listed. Its provisions empower
only those who are interested in the wakfs to institute
suits. [164 E-Fl
Sirajul Hag Khan & Ors. v. The Sunni Central Board of
Wakf, U.P. Ors., [1959] SCR 1287, referred to.
(c) The word "therein" in s. 6(1) must mean "any person
interested in a wakf" as defined in s. 3(h). The object of
the section is to narrow down the dispute between the Board
of Wakfs, the Mutawalli and the person interested in the
wakf as defined in s. 3(h). [165 H]
(d) The right of the respondents 1 and 2 in respect of
the disputed property, if at all they have any, will remain
unaffected by the impugned Notification. They are at liberty
to bring a Suit for the establishment of their right and
title, if any, to the property. [168-E]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 166 of
1969.
From the Judgment and order dated 4- 5-1966 of the
Rajasthan High Court in D.B. Civil Misc. Writ No. 74 of
1965.
M. N. Phadke, M. Qamaruddin, Mrs. M. Qamaruddin and V.
M. Phadke for the Appellant.
S. S. Ray, S. M. Jain, D. D. Patodia and S. K. Jain for
Respondents 1 and 2.
151
Appeal set down Ex parte against RR. 3 and 4.
The Judgment of the Court was delivered by
SEN, J. This appeal by certificate is directed against
the judgment of the Rajasthan High Court dated May 4, 1966
holding that inclusion of the disputed property in the list
of wakfs published by the Board of Muslim Wakfs, Rajasthan
under sub-s. (2) of s. 5 of title Wakf Act, 1954 is not
binding on the respondents No6. 1 and 2, the mortgagee
purchasers and restraining the Board from taking only sleeps
under s. 36B of the Act for evicting them from the same.
The subject matter in dispute is a two-storeyed
building, knows as Dharamshala or Musafirkhana, situate on
Mirza Ismail Road at Jaipur. The building was constructed by
the late Haji Mohammad Ali Khan, a Sessions Judge of the
erstwhile Princely State of Jaipur, who owned a considerable
estate, on a plot of land admeasuring 5 bighas and 3 biswas
obtained from the Mehakma Mensa Aliya Council with the
approval of the Ruler of Jaipur under a Patta dated February
23, 1886 for construction of a Haveli and Dharamshala. It
appears that Haji Mohammad Ali Khan before his death in the
year 1912, had executed two wills, one on February 17, 191 O
and the other on July 1, 1911, by which after making several
bequests he acknowledged that he had dedicated the said
property in wakf, for its use as a Dharammshala and
appointed his son Ehsen Ali Khan as its Mutawalli. After the
death of Haji Mohammad Ali Khan, there was a suit for
partition of the property brought by his son Faiyaz Ali Khan
against his brother Ehsari Ali Khan, being original Suit No.
128 of 1930 and the building was left out of partition being
wakf property.
It, however, appears that the mutawalli Ehsan Ali Khan
mortgaged the property with possession, with Seth Bijaylal,
father of respondent No. 2, and Bhuramal, father of
respondent No. 1, for Rs. 7,999,’- and executed a mortgage
deed dated July 30, 1944 in Their favour for the purpose or
purchasing a strip of land in front of the building from the
Municipal Council Jaipur and thereafter constructed
verandahs on the ground floor and the first floor. For
making this construction, he raised a further loan of Rs.
9,999/- by effecting a second mortgage by executing the
mortgage deed dated July 7, 1945 in favour of the said
mortgagees. the respondents Nos. 1 and 2 purchased the
ground floor of the building from Ehsan Ali Khan for Rs.
19,999/- by means of a registered sale dead dated November
23, 1954. The consideration was applied towards satisfaction
of the two previous mortgages. Thereafter, they purchased
the first floor of the said building from him for Rs.
13,999/- by means of a registered sale deed dated July 31,
1956.
152
The wakf Act, 1954 was extended to the State of
Rajasthan on February 1, 1955. The Board of Muslim wakfs,
Rajashthan was constituted by the State Government on August
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6, 1962 in accordance with s. 9 and thereafter the
Government appointed a Commissioner of Wakfs under sub-s.(1)
of s.4 for the purpose of making survey of wakf properties
existing in the State, at the date of the commencement of
the Act. On August 30, 1962, one Shauket Ali Khan, the
respondent No. 3 applied to the Commissioner of Wakfs
alleging that the aforesaid property was wakf property and
therefore, its transfer by Ehsan Ali Khan, who was its
mutawalli, in favour of the respondents Nos. 1 and 2 was
invalid and consequently prayed that the property be
declared to be Wakf property and possession of the same be
handed over to the wakf Committee. The Commissioner of Wakfs
accordingly issued notice to the respondents. Nos. 1 and 2
the mortgagee purchasers. In response to the notice, the
respondents Nos. 1 and 2 appeared before the Commissioner of
Wakfs on September 19, 1962 and raised a preliminary
objection as to the jurisdiction denying that the disputed
property was wakf property and contended that the
Commissioner of Wakfs had no jurisdiction to make an enquiry
as to whether a particular property is wakf property or not.
The Commissioner of Wakfs by his order Dated September 19,
1962 over-ruled the objection. Thereupon, the respondents
Nos. 1 and 2 filled a writ petition before the Rajasthan
High Court, but the High Court by its order dated October
11, 1962 dismissals the petition liming observing that the
Commissioner had obviously no jurisdiction j to decide any
question relating to the title of the respondents Nos. 1 and
2 or to eject them from the property without taking recourse
to a civil suit. The Commissioner of Wakfs, however, felt
that he was not bound by these observations of the High
Court since he was not served with a notice and accordingly
decided to proceed with the enquiry. In . consequence
thereof, the respondents Nos. 1 and 2 had to participate in
the proceedings. On October 19, 1962 they filed their reply
before the Commissioner of Wakfs and joined issue on the
question as to whether the disputed property was wakf
property or not. In their reply they pleaded, inter alia
that the property was not a wakf and that the wills had
indeed been cancelled in a suit. The Commissioner of Wakfs
by his report dated December is, 1964 on the basis of the
evidence led before him, held the disputed property to be
wakf property recommended that it be recorded as such, and
accordingly, forwarded a report to that effect to the State
Government as required under sub-s.(3) of s.4.
On receipt of the report of the Commissioner of Wakfs
forwarded to it by the State Government under sub-s. (1) of
s. S, the Board of Muslim
153
Wakfs published a notification for inclusion of the property
in dispute A in the list of Wakfs existing in the State in
the Rajasthan Rajpatra dated December 2, 1965. Thereafter,
the respondents Nos. ] and 2, filed a writ petition in the
High Court challenging the legality and validity of the
proceedings taken by the Commissioner of Wakfs. It was
contended that on the basis of such report, the Board of
Muslim Wakfs was not entitled to include their property in
the list of wakfs published under sub-s.(2) of s.5.
In allowing the petition, the High Court held that the
entire scheme or the Wakf Act, 1954, indicates that the
Board of Wakfs jurisdiction is confined to matters of
administration of the wakfs and not to adjudication of
questions of title. In view, it was evident that the Act did
not invest the Board of Wakfs or the Commissioner of Wakfs
with the power to decide the question whether a property
belonged to a wakf or not; and more so, where a person
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claiming title is a stranger to the wakf. It accordingly
held that a Commissioner of Wakfs appointed under sub-s.(1)
of s.(4) of the Act has no jurisdiction under sub-s.(3) of
s. 4 to enquire whether or not a certain property is wakf
property when such a dispute is raised by such a person. It
further held that the object of s. 6 is to narrow down the
dispute between the Board of Wakfs, the mutawalli and the
person interested in the wakf, as defined in s. 3.
Consequently, the High Court held that the failure of a
stranger to the wakf to institute a suit in a court of
competent jurisdiction for a decision of such question,
namely, whether a particular property is a wakf property or
not, cannot make the inclusion of such property in the list
of wakfs published by the Board under sub-s. (2) of s. 5 of
the Act final and conclusive under sub-s. (4) of s. 6 of the
Act. It also held that the Board is not invested with
jurisdiction to enquire into and decide the questions of
title to, or possession of, the properties belonging to
third parties under s. 27 of the Act.
It is argued for the appellant, firstly, that the words
’for the purpose of making a survey of wakf properties’ are
wide enough and confer ample power on the Commissioner ’to
investigate and adjudicate’ upon the question whether a
certain property is wakf property or not during the course
of his survey of. wakf properties in the State of Rajasthan;
and secondly, the failure of the respondents Nos. l and 2 to
file a suit within the time allowed by sub-s. (1) of s. 6 of
the Act makes the inclusion of the disputed property in the
list of wakfs published by the Board of Wakfs under sub-
s.(2) of s.5, final and conclusive. Tn support of the
contentions, it is urged that the word ’therein’ in the
expression ’any per- son interested therein’ appearing in
sub-s.(1) of s.6, qualify title words ’wakf property’ and,
therefore, the expression ’any person interested 817SCI/78
154
therein’ cannot, in the context in which it appears, mean
’person interested in a wakf’ as defined in s. 3(h) of the
Act, as wrongly assumed by the High Court. It is therefore,
urged that the right of suit given under s. 6(1) of the Act
can be availed of by a person affected by the publication of
the list of wakfs under sub-s.(2) of s.5, i.e. it includes
even a stranger.
In reply, it is submitted on behalf of the respondents
Nos. 1 and 2, that the scope of s. 6 is to narrow down the
dispute between the Board of Wakfs, the mutawalli and any
person interested in the wakf, as defined in s. 3(h). It is
urged that the High Court was, therefore, right in holding
that 6 refers only to such a dispute and cannot affect the
right and title of a stranger to the wakf, particularly of a
person belonging to another religious denomination. The
submission is that the word ’therein’ in sub-s. (1) of s. 6,
in the context and setting in which it appears, does not fit
in with the words ’wakf property’ in the collocation of
words, but qualifies the words ’the wakf’ immediately
presiding it. It is said that the word ’therein’ has been
used to avoid repetition of the words ’the wakf’, and not to
extend the ambit of the section to persons who fall outside
the scope of the expression ’person interested in a wakf’ as
defined in s.3(h). It is, therefore, urged that the
respondents Nos. 1 and 2 are wholly outside the purview of
s.6(1) and, therefore, they must necessarily fall outside
the scope of the enquiry under, s.4(1), as the provisions
contained in s.4, 5 and 6 form part of an integrated scheme.
It is pointed out that on the terms of s.4 the Commissioner
of Wakfs has no power’ to enquire whether or not a certain
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property is wakf property when such dispute is raised by a
stranger to the wakf. In support of the contention, the
language of s. 4 is contrasted with that of s.27 and it is
said that, while the Board of Wakfs has the power to hold an
enquiry as to whether a particular property is wakf property
or not under s.27, the Commissioner of Wakfs has no power to
hold such an enquiry.
In order to appreciate the implications of the rival
contentions, it Is necessary not only to examine the scheme
of the Act but also the purpose and object of the
legislation.
The Wakf Act, 1954, "the Act", as the preamble shows,
was enacted ’to provide for the better administration and
supervision of wakfs’. The avowed object and purpose of the
Act was to bring the management of Wakfs, though it vests
immediately in a mutawalli, subject to the supervision the
State. It was enacted to replace the Mussalman Wakf Act,
1923, which merely provided for the submission of audited
accounts by mutawallis, and was found to be wanting in
155
several respects and really not of much practical value. It
was found k that proceedings could be successfully defeated
simply on the plea taken by the mutawalli that there was no
wakf. To remove the lacunae, the Mussalman Wakf (Bombay
Amendment) Act, 1935 amended the Act. The Bengal Wakf Act,
1934 was enacted to create a machinery for the supervision
of wakfs in Bengal. The United Provinces followed suit and
the United Provinces Muslim Wakf Act, 1936 was passed
creating a Central Wakf Board. Similarly, Bihar also passed
a legislation almost on the same lines. The working of these
Acts brought out the necessity for one uniform and
consolidated legislation by the Center. It was with this
view that the Wakf Act 1954 was enacted.
The scheme of the Act may be briefly indicated. Section
2 makes the Act applicable to all wakfs in India except to
Durgah Khawaja Saheb, Ajmer. Section 3 defines certain
terms, and the term ’wakf’ and the expression ’person
interested in a wakf’ have been defined as follows:
"3.(h) ’person interested in a wakf’ means any
person who is entitled to receive any pecuniary or
other benefits from the wakf and includes,-
(i) any person who has a right to worship or to
perform any religious rite in a mosque,
idgah, imambara, dargah, Khangah, maqbara,
graveyard or any other Religious institution
connected with the wakf or to participate in
any religious or charitable institution under
the wakf;
(ii) the wakif and any descendant of the wakif and
the mutawalli.
(1) ’wakf’ means the permanent dedication by a
person professing Islam of any movable or irremovable
property for any purpose recognised by the Muslim law
as pious, religious or charitable and includes
(i) a wakf by user;
(ii) grants (including mashrut-ul-khidmat) for any
purpose recognised by the Muslim law as
pious, religious or charitable; and
(iii)a wakf-alal-aulad to the extent to which the
property is dedicated for any purpose
recognised by Muslim law as pious, religious
or charitable;
and ’wakif’ means any person making such
dedication.’
156
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The Act consists of several chapters and can
conveniently be divided into three parts. The first part
relates to the survey of wakfs. Chapter II is headed ’Survey
of Wakfs’. Sub-section (1) of s. 4 empowers the State
Government to appoint for the State by a notification a
Commission of Wakfs for the purpose of making survey of wakf
properties existing at the time of the commencement of the
Act. Sub-section (3) enjoins the Commissioner to submit his
report to the State Government after making such enquiry as
he may consider necessary and the report is to contain the
following particulars namely:
(a) the number of wakfs in the State, or as the
case may be, any part thereof, showing the
Shia Wakfs and Sunni Wakfs separately;
(b) the nature and objects of each wakf;
(c) the gross income of the property comprised in
each wakf;
(d) the amount of land revenue, cesses, rates and
taxes payable in respect of such property;
(e) the expenses incurred in the realisation of
the income and the pay or other remuneration
of the mutawalli of each wakf; and
(f) such other particulars relating to each wakf
as may be prescribed."
Sub-section (4) enjoins that the Commissioner, while making
such enquiry, shall have certain powers as are vested in a
civil court under the Code of Civil Procedure, 1908, namely,
summoning and examining any witness, requiring the discovery
and production of any document, re questioning any public
record from any court or office, issuing commissions for the
examination of any witness or accounts, making any local
inspection or local inspection etc. Sub-section (5) of s.4
runs thus:
"(5) If, during any such inquiry, any dispute
arises as to whether a particular wakf is a Shia wakf
or Sunni wakf and there are clear indications in the
deed of wakf as to its nature, the dispute shall be
decided on the basis of such deed."
Section 5 provides for publication of a list of wakfs
and is as follows:
"5.(1) on receipt of a report under sub-section
(3) of Section 4, the State Government shall forward a
copy of the same to the Board.
157
(2) The Board shall examine the report forwarded
to it under sub-section (1) and publish, in the
official (Gazette, a list of wakfs existing in the
State, or as the case may be, the part of the State to
which the report relates, and containing such
particulars as may be prescribed."
Section 6, which relates to adjudication of dispute
regarding wakfs, B so far as material, reads:
"6.(1) If any question arises whether a particular
property specified as wakf property in a list of wakfs
published under sub-section (2) of the section 5 is
wakf property or not or whether a wakf specified in
such list is a Shia wakf or Sunni wakf the Board or the
mutawalli of the wakf or any person interested therein
may institute a suit in a civil court of competent
jurisdiction for the decision of the question and the
decision of the civil court in respect of such matter
shall be. final:
Provided that no such suit shall be entertained by
the civil court after the expire of one year from the
date of the public cation of the list of wakfs under’
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sub-section (2) of section 5.
. .. . .. . .. ...... ... . .. ....... ..... ........
(4) The list of wakfs published under sub-section
(2) of section S shall, unless it is modified in
pursuance of a decision of the civil court under sub-
section (1), be final and conclusive."
Chapter IIA is about the constitution of the Central
Wakf Council, with which we are not concerned. Chapter III
provides for establishment of a Board of Wakfs and defines
the nature of its duties, powers and functions. This chapter
also provides for certain incidental matters. Sub-section
(1) of section 15 provides that the general superintendence
of all wakfs in a State shall vest in the Board so
established for the State, and it shall be the duty of the
Board to ensure that the wakfs under its superintendence are
properly maintained, controlled and administered and the
income thereof is duly applied to the objects and for the
purpose for which such wakfs were created or intended. Sub-
section (2) enumerates the various functions of the Board.
The next stage is that of registration of wakfs. That
subject is dealt with in Chapter IV. Section 25 lays down
that every wakf, whether created before or after the
commencement of the Act, shall be registered at the office
of the Board. Section 26 requires the Board to maintain a
register of wakfs. Under s. 27, the Board is invested
158
with the power to decide whether a certain property is wakf
property and reads as follows:
"27. (1) The Board may itself collect information
regarding any property which it has reason to believe
to be wakf property and if any question arises whether
a particular property is wakf property or not or
whether a wakf is a Sunni wakf or a Shia Wakf, it may
after making such inquiry as it may deem fit, decide
the question.
(2) The decision of the Board on any question
under sub-section (1) shall, unless revoked or modified
by a civil court of competent jurisdiction, be final."
Section 28 empowers the Board to direct a mutawalli to
apply for the registration of a wakf or to supply any
information regarding a wakf, and the Board may itself cause
the wakf to be registered or May at any time amend the
register of wakfs.
The third stage then arises. After completing the
survey and finalising the registration of wakfs, the Board
which is an administrative body, is empowered to supervise
and administer wakf property. Chapter V deals with
mutawallis and wakf accounts. This chapter provides in
detail as to how mutawalli shall submit budget and tho
accounts and in what manner the Board will be exercising its
control over the wakf properties. Section 36A relates to
transfer of immovable property of wakfs. According to this
section, no transfer of the wakf property is valid without
the previous sanction of the Board. Section 36B empowers
‘the Board to recover certain wakf properties transferred
without the previous sanction of the Board by sending a
requisition to the Collector. Chapter VI relates to the
finance of tho Board. Chapter VII to judicial proceedings
and Chapter VIII to miscellaneous matters. It would thus
appear that the Act is a complete code dealing with the
better administration and supervision of wakfs.
The High Court, in its considered opinion, in the light
of the historical background and precedents, observed: "
The present Act No. 29 of 1954 is, no doubt an
improvement on the Mussalman Wakf Act, 1923, but in our
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view, this also does not empower the Board of Wakfs to
decide the question whether a particular property is
wakf property or not, if such a dispute is raised by a
person who is a stranger to wakf."
There is a considerable body of authority interpreting
s. 10 of the Mussalman Wakf Act 1923, in favour of the view
that where
159
the existence of a wakf was itself in dispute, the District
Judge had no jurisdiction to inquire into its existence, and
the matter could be settled only by instituting a regular
suit. The question came up for consideration before several
High Courts in India as will appear from Nasrulla Khan v.
Wajid Ali, (1) Wahid Hasan v. Abdul Rahman,(2) Syed Ali
Mohammed v. Collector ff Bhagalpur,(3) Mohammad Baqar v.
Mohammed Qasim,(4) Nanha Shah v. Abdul Hasan,(5) and Abdul
Hussain v. Mohmmad Ebrahim Riza.(x) The general trend of
opinion was that the District Judge in dealing with in
application under s. 10) of that Act had, in the absence of
a clear provision in that behalf, no jurisdiction to try an
issue as to whether certain property was wakf property. It
was pointed out that if the legislature had the intention
to confer such power, there would have been a provision like
s. S of Charitable and Religious Trusts Act, 1920. In Abdul
Hussain v. Mohmmad Riza (supra) it was observed:
"Considering the terms of the enactment and the
scope and purpose of the Act is clear that the
legislature intended of income of wakf properties for
the purpose of providing some control on the management
of properties which are admittedly wakf. It could not
have intended to include hl its scope the enquiry into
the vital questions whether the disputed property is
wakf property and the person in possession of it is a
mutwalli, which are questions of fundamental character
such as could be the subject-matter of a suit alone."
Though sub-s. (3) of s. 4 of the Act is rather unhappily
worded, of the Wakf Act, 1954.
The Wakf Act, 1954 does, in our opinion, furnish a
complete machinery for the better administration and
supervision of wakfs. Though sub-s. (3) of s. 4 of the Act
is rather unhappily worded, it is not a sound principle of
construction to interpret expressions used in one Act with
reference to their use in another Act, and decisions
rendered with reference to construction of one Act cannot
apply with reference to the provisions of another Act,
unless the two Acts are in pari materia. Further, when there
is no ambiguity in the
(1) I.L.R. 52 All. 167.
(2) I.L.R. 57 All. 754.
(3) A.I.R. 1927 Pat. 189.
(4) I.L.R. 7 Luck. 601 (F.B.)
(5) A.I.R. 1938 Pat. 137.
(6) I.L.R. (1939) Nag. 564.
160
statute, it may not be permissible to refer to, for purposes
of its construction, any previous legislation or decisions
rendered therein.
The questions that fall for determination upon the
appeal are two; first, whether a Commissioner of Wakfs
appointed under sub-s. (1) of s. 4 of the Wakf Act, 1954,
has the jurisdiction under sub s. (3) of s. 4 to enquire
whether a certain property is wakf property or not when such
a dispute raised by a stranger to the wakf and second, if
so, whether the failure of such a person to institute a suit
in a civil court of competent jurisdiction for decision of
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such question within a period of one year, as provided for
under sub-s. (1) of s. 6, makes the inclusion of such
property in the list of wakfs published by the Board under
sub-s.(2) of s. 5 of the Act final and conclusive under sub-
s. (4) of s. 6
It is needless to stress that the whole purpose of the
survey of wakfs by the Commissioner of Wakfs under sub-s.
(1) of s. 4 is to inform the Board of Wakfs, as to the
existence of the existing wakfs in a State, in order that
all such wakfs should be brought under the supervision and
control of the Board of Wakfs.
While the High Court was, in our view, right in
determining the scope of sub-s. (1) of s. 6 of the Act, it
was clearly in error in cur tailing the ambit and scope of
an enquiry by the Commissioner of Wakfs under sub-s. (3) of
s. 4 and that by the Board of Wakfs under s. 27 of the. Act
In dealing with the scope of enquiry by the
Commissioner of Wakfs: under sub-s. (3) of s. 4, the High
Court adverts to the,. heading of Chapter II and the
marginal note of sub-s. (1) of s. 4. It observes:
"The heading of section 4 with which this chapter
started was ’Preliminary survey of wakfs’. The use of
the word ’Preliminary’ in the heading is one of
significance.
The weight of authority is in favour of the view that the
marginal note upended to a section cannot be used for
construing the section. Lord Macnaghten in Balraj Kunwar v.
Jagatpal Singh(1) considered it well settled that marginal
notes cannot be referred to for the purposes of
construction. This Court after referring to the above case
with approval, said in Commissioner of Income-Tax v.
Ahmedbhai Umedbhai Umarbhai & Co.(2):
"Marginal notes in an Indian statute, as in an Act
of Parliament, cannot be referred to for the purpose of
construe the statute."
(1) ILR 26 All. 393 (P.C.)
(2) [1950]; S.C.R. 335.
161
As explained by Lord Macnaghten in the Privy Council,
marginal notes A are not part of an Act of Parliament.
The very heading of Chapter II and the caption to s. 4
no doubt suggest that the Commissioner makes only a
preliminary survey regarding existing wakfs and the list of
wakfs prepared by him is published by the Board and neither
the Commissioner nor the Board is required to make any
enquiry regarding, the character of the property. That is to
say, the making of survey is only an administrative act and
not a quasi-judicial act. But, on a closer examination, it
is, clear that while making a survey of the existing wakfs
in a State under sub-s. (1) of 5. 4, the Commissioner is
required by sub-s. (3) to submit a report to the State
Government in regard to the serval matters referred to in
cls. (a) to (f) thereof. There may be a dispute as between
the Board, the mutawalli or a person interested in the wakf,
as regards (a) the existence of a wakf, i.e. whether a
particular property is wakf property, (b) whether it is a
Shia wakf or a Sunni wakf, (c) extent of the property
attached to the wakf, (d) the nature and object of the wakf,
etc. While making such an enquiry, the Commissioner is
invested by sub-s. (4) with the powers vested in a civil
court under the Code of Civil Procedure, 1908 in respect of
the summoning and examining of any witness, requiring the
discovery and production of any document, requisitioning any
public record from any court or office, issuing commissions
for the examination of any witness or accounts, making any
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local inspection or local investigation etc. In view of
these comprehensive provisions, it is not disputed before us
that the enquiry that the Commissioner makes for the purpose
of submission of his report under sub-s. (3)? while making a
survey of existing wakfs in the Estate under sub-s. (1), is
not purely of an administration nature but partakes of a
quasi-judicial in character, in respect of the persons
falling within the scope of sub-s. (1) of s. 6.
It would be illogical to hold that while making a
survey of wakf properties existing in the State a
Commissioner of Wakfs appointed by the State Government
under sub-s. (1) of s. 4, should have no power to enquire
whether a particular property is wakf property or not. If we
may refer to sub-s. (1) of s. 4, so far as material, it
reads:
"The State Government may, by notification in the
official Gazette, appoint for the State a Commissioner
of Wakfs... for the purpose of making a survey of wakf
properties existing in the State at the date of the
commencement of this Act."
It will be clear that the words "for the purpose of making a
survey of wakf properties" is a key to the construction of
the section The
162
ordinary meaning of the word "survey", as given in the
Random House Dictionary of English Language, is ’to take a
general or comprehensive view of or appraise, as a
situation’. If the Commissioner of Wakfs has the power to
make a survey, it is but implicit that in the exercise of
such power he should enquire whether a wakf exists. The
making o such an enquiry is a necessary concomitant of the
power to survey. The High Court was clearly in error in
observing:
"Except sub-section (5) there is nothing in
section 4 or in the rules made by the State to show
that the Commissioner is empowered to adjudicate on a
question, if one arises, whether a particular property
is a wakf property or not."
We are of the opinion that the power of the
Commissioner to survey wakf properties under sub-s. (1) or
to enquire and investigate into the several matters set out
in cls. (e) to (f) of sub-s. (3) cannot be curtailed by
taking recourse to Sub-5. (5). The High Court was wholly
wrong in understanding the true implication of sub-s. (5) of
s. 4. It only lays down that if, during any such enquiry,
any dispute arises as to whether a particular wakf is a Shia
wakf or a Sunni wakf, and there are clear indications in the
deed of wakf as to its nature, the dispute shall be decided
on the basis of such deed. It, therefore, makes the wakf
deed conclusive as to the nature of the wakf, i.e. whether
it is a Shia or a Sunni wakf. In our view, sub s.(5) of s. 4
cannot be projected into sub-s. (1) for determining the
question whether a certain property is a wakf property or
not. Nor does it enter into an enquiry as to several of the
matters adverted into some of the clause of sub s. (3).
The matter can also be viewed from another angle. If
sections 4, 5 and 6 are parts of an integrated scheme, as
asserted, then it follows as a necessary corollary that the
enquiry envisaged by sub-sections (1) and (3) of s. 4 must
cover the field defined by sub-s. (1) of s. 6. The opening
words of the section are:
"If any question arises whether a particular
property specified as wakf property in a list of wakfs
published under sub section (2) of section 5 is wakf
property or not or whether a wakf specified in such
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list is a Shia wakf or Sunni wakf .... "
They clearly envisage that the enquiry by the Commissioner
is not con fined to the question as to whether a particular
wakf is Shia wakf or Sunni wakf. It may also embrace within
itself a dispute as to whether a wakf exists. This is a
conduction which sub-s. (1) of s.4 must, in its context and
setting, bear. Any other construction would, indeed, make
the Act unworkable.
163
While it is true that under the guise of judicial
interpretation the court cannot supply casus omissus, it is
equally true that the courts in construing an Act of
Parliament must always try to give effect to the intention
of the legislature. In Crawford v. Spooner(1) the Judicial
Committee said:
"We cannot aid the legislature’s defective
phrasing of an Act, we cannot add and mend, and, by
construction, make up deficiencies which are left
there."
To do so would be to usurp the function of the legislation.
At the same time, it is well settled that in construing the
provisions of a statute the course should be slow to adopt a
construction which tends to make any part of the statute
meaningless or ineffective. Thus, an attempt must always be
made to reconcile the relevant provisions so as to advance
the remedy intended by the statute.
It would certainly have been better if the legislature
had inserted a provision like section 6-C incorporated in
the Mussalman Wakf Act, 1923 by the Mussalman Wakf (Bombay
Amendment) Act, 1935, which was in force in the States of
Maharashtra and Gujarat, namely:
"6-C. Power of the Court to enquire: (1) The court
may, either on its own motion or upon the application
of any person claiming to have an interest in a wakf,
hold an enquiry in the prescribed manner act any time
to ascertain-
(i) whether a wakf exists."
Failure to insert such a provision in sub. (3) of s. 4,
however, is of little consequence. As already indicated, the
power of the Commissioner to make a survey of existing wakf
properties, carries, with it, by necessary implication, the
power to enquire as to the existence of a wakf. Perhaps, the
legislature thought it to be a superfluity.
That leaves us with the question as to the scope of
sub-s. (1) of s. 6. All that we have to consider in this
appeal is, whether if the Commissioner of Wakfs had
jurisdiction to adjudicate and decide against the
respondents Nos. l and 2 that the property in dispute was
wakf property, the list of wakfs published by the Board of
Wakfs under sub-s. (2) of 5. 5 would be final and conclusive
against them under s. 6(4) in case they had not filed a suit
within a year from the publication of the lists The question
as to whether the respondents Nos. 1 and 2 can be
dispossessed, or their possession can be threatened by the
Board of Wakfs by proceeding under s. 36B without filing a
suit in a civil court of competent jurisdiction does not
arise for our consideration
(1) [1846] 6 Moors P.C. 1.
164
In the present case, the respondents Nos. 1 and 2 who
are non Muslims, contended that they are outside the scope
of sub-s. (1) of s. 6, and consequently, they have no right
to file the suit contemplated by that sub-section and,
therefore, the list of wakfs published by the Board of Wakfs
under sub-s. (2) of S!. 5 cannot be final and conclusive
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against them under sub-s. (4) of s. 6, it was urged that
respondents Nos,. 1 and 2 were wholly outside the purview of
sub-s. (1) of s. 6 and they must, therefore, necessarily
fall outside the scope of the enquiry envisaged by sub-s.
(1) of s. 4, as the provisions contained’ in sections 4, 5
and 6 form part of an integrated scheme. The question that
arises for consideration, therefore, is as to who are the
parties that could be taken to be concerned in a proceeding
under sub-s. (1) of s. 6 of the Act, and whether the list
published under subs. (2) of s. S declaring certain property
to be wakf property, would bind a person who is neither a
mutawalli nor a person interested in the wakf.
The answer to these questions must turn on the true
meaning and construction of the word ’therein’ in the,
expression ’any person interest ted therein’ appearing in
sub-s. (1) of s. 6. In order to understand the meaning of
the word ’therein’ in our view, it is necessary to refer to
the preceding words ’the Board or the mutawalli of the
wakf’. The word ’therein’ must necessarily refer to the
’wakf’ which immediately pre cedes it. It cannot refer to
the ’wakf property’. Sub-section (1) of s. 6 enumerates the
persons who can file suits and also the questions in respect
of which such suits can be filed. In enumerating the persons
who are empowered to file suits under this provision, only
the Board, the mutawalli of the wakf, and ’any person
interested therein’, thereby necessarily meaning any person
interested in the wakf, are listed. It should be borne in
mind that the Act deals with wakfs, its institutions and its
properties. It would, therefore., be logical and reasonable
to infer that its provisions empower only those who are
interested in the wakfs to institute suits.
In dealing with the question, the High Court observes:
"In our opinion, the words "any person interested
therein" appearing in sub-section (1) of section 6 mean
no more than a person interested in a wakf as defined
in clause (h) of section 3 of the Act
It is urged by learned counsel for the petitioners
that the legislature has not used in section 6(1) the
words "any person interested in a wakf" and, therefore,
this meaning should not be given to the words "any
person interested therein". This argument is not
tenable because the words "any person inte-
165
rested therein" appear soon after "the mutawalli of the
wakf" A and therefore the word ’therein’ has been used
to avoid re petition of the words "in the wakf" and not
to extend the scope of the section to persons who fall
outside the scope of the words "person interested in
the wakf". The purpose of section 6 is to confine the
dispute between the wakf Board, the mutawalli and a
person interested in the wakf."
That, in our opinion, is the right construction.
We are fortified in That view by the decision of this
Court in Sirajul Hag Khan & ors. v. The Sunni Central Board
of Wakf, U.P. & ors While construing s. 5(2) of the United
Provinces Muslins Wakf Act, 1936, this Court interpreted the
expression "any person interested in a wakf" as meaning ’any
person interested in what is held to be a wakf’, that is, in
the dedication of a property for a pious, religious or
charitable purpose. It will be noticed that sub-s. (1) of s.
6 of the Act is based in sub-s. (2) of s. 5 of the United
Provinces Muslims Wakf Act, 1936, which runs thus:
"The mutawalli of a wakf or any person interested
in a wakf or a Central Board may bring a suit in a
civil court of competent jurisdiction for a declaration
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that any transaction held by the Commissioner of Wakfs
to be a wakf is not a wakf, or any transaction held or
assumed by him not to be a wakf, or that a wakf held by
him to pertain to a particular sect does not be- long
to that sect, or that any wakf reported by such
Commissioner as being subject to the provisions of this
Act is exempted under section 2, or that any wakf held
by him to be so exempted is subject to this Act."
The provision to that section prescribed the period of
one year’s limitation, as here, to a suit by a mutawalli or
a person interested in the wakf.
The two provisions are practically similar in content
except that the language of the main enacting part has been
altered in sub-s. (1) of s. 6 of the present Act and put in
a proper form. In redrafting the section, the sequence, of
the different clauses has been changed, therefore, for the
expression "any person interested in a wakf" the legislature
had to use the expression "any person interested therein".
The word ’therein’ appearing in sub-s. (1) of s. 6 must,
therefore, mean ’any person interested in a waker’ as
defined in s. 3(h). The object of sub-s. (1) of s 6 is to
narrow down the dispute between the Board of Wakfs, the
mutawalli and the person interested in the wakf, as defined
in s. 3 (h)
(1) [1959] S.C.R. 1287.
166
In this context, the scope of s. 6 was examined by the
High Court and it observed:
"The purpose of sec. 6 is to confine the dispute
between the Wakf Board, the mutawalli and a person
interested in the wakf. In other words, if there is a
dispute whether a particular property is a wakf
property or not, or whether a wakf is a Shia wakf or a
Sunni wakf, then the Board or the mutawalli of the wakf
or a person interested in the wakf as defined in sec. 3
may institute suit in a civil court of competent
jurisdiction for the decision of the question. They can
file such a suit within one year of the date of the
publication of the list of wakfs and if no such suit is
filed, the list would be final and conclusive between
them.
The very object of the Wakf Act is to provide for
better administration and supervision of wakfs and the
Board has been given powers of superintendence over all
wakfs which vest in the Board. This provision seems to
have been made in order to avoid prolongation of
triangular disputes between the Wakf Board, the
mutawalli and a person interested in the wakf who would
be a person of the same community. It could never have
been the intention of the legislature to cast a cloud
on the right, title or interest of persons who are not
Muslims. That is, if a person who is non-Muslim whether
he be a Christian, a Hindu, a Sikh, a Parsi or of any
other re ligneous denomination and if he is in
possession of a certain property his right, title and
interest cannot be put in jeopardy simply because that
property is included in the list published under sub
sec. (2) of Sec. 5.
The Legislature could not have meant that he
should be driven to file a suit in a Civil Court for
declaration of his title simply because the property in
his possession is included in the list. Singularly, the
legislature could not have meant to curtail the period
of limitation available to him under the Limitation Act
and to provide that he must file a suit within a year
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or the list would be final and conclusive against him.
In our opinion, sub-section (4) makes the list final
and conclusive only between the Wakf Board, the
mutawalli and the person interested in the wakf as
defined in Section 3 and to no other person."
We are in agreement with this reasoning of the High
Court.
It follows that where a stranger who is a non-Muslim
and is in possession of a certain property his right, title
and interest therein cannot be
167
put in jeopardy merely because the property is included in
the List. Such a person is not required to file a suit for
a declaration of his title within a period of one year. The
special rule of limitation laid down in proviso to sub s.
(1) of s. 6 is not applicable to him. In other words, the
list published by the Board of Wakfs under sub-s. (2) of s.
S scan be challenged by him by filing a suit for declaration
of title even after the expiry of the period of one year, if
the necessity of filing such suit arises.
Incidentally, the High Court also dealt with s. 27 of
the Act, and observed.
"S. 27 does not seem to suggest that it empowers
the Board to decide the question whether a particular
property is wakf property or not, if that challenge
comes from a stranger who is neither mutawalli nor a
person interested in the wakf, but who belongs to
another religious denomination and who claims a valid
title and lawful possession over that property. To ac
kept the respondents argument would mean that the Board
would be given the powers of the Civil Court to decide
such disputes between itself and strangers and thus to
make the Board’s decision final unless it is changed by
a Civil Court of competent jurisdiction. If a dispute
is raised by a non Muslim, the Board cannot by simply
entering the property in the register of wakfs drive
him to take recourse to a Civil Court
In our judgment, the High Court was clearly in error in
dealing with s. 27 or s. 36B of the Act. It appears from the
writ petition field the High Court that no relief was as
sought in respect of any action under s. 27. The
observations of the High Court were, therefore, strictly not
called for in regard to s. 27. It should have left the
question open. The question may arise if and when, action
under s. 27 is taken. We, therefore, refrain from expressing
any opinion as to the scope of s. 27 of the Act.
Likewise, the High Court went on to consider the impact
of s. 36B, and observed:
"In our opinion, this section cannot apply in the
case of a property which is in the hands of a stranger
over whom the Board has no control under the Act,
simply because the Board happens to enter the property
in its register. In a case like the present one, where
the petitioners claim their possession over the
property as mortgagees from the year 1944 and fur-
their claim their title and possession as vendees over
the same property from the year 1954, the Board of
Wakfs cannot, by
168
simply entering the property in the list of wakfs or
registering it in the register of wakfs, drive them to
file a suit to establish their title or retain their
possession. It cannot also seek to dispossess them from
the property by resorting to section 36B. It is for the
Board to file a civil suit for a declaration that the
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property in dispute is a wakf property and to obtain
its possession."
It was really not necessary for the High Court to
decide whether s. 36B of the Act was attracted or not, in
the facts and circumstances of the case.
We must accordingly held that the Commissioner of Wakfs
acted within jurisdiction in holding the disputed property
to be wakf property. It must, therefore, follow that the
Board of Muslim Wakfs, Rajasthan was justified in including
the property in the list of wakfs published under sub-s. (2)
of s. S of the Act. We must also hold, on a construction of
sub-s. (1) of s. 6 that the list of wakfs so published by
the Board was not final and conclusive under sub s (4) of s.
6 against the respondents Nos. l and 2 due to their failure
to bring a suit within one year as contemplated by sub s.
(1) of s. 6.
In view of the foregoing, the right of the respondents
Nos. 1 and 2 in respect of the disputed property, if at all
they have any, will remain unaffected by the impugned
notification. They are at liberty to bring a suit for the
establishment of their right and title, if any, to the
property.
Accordingly, the order of the High Court allowing the
writ petition and declaring that the inclusion of the
property in dispute in the list of wakf published by the
Board bf Muslim Wakfs, Rajasthan under sub-s. (2) of s. 5 of
the Wakf Act, 1954 was not binding on the respondents Nos. 1
and 2 is upheld, but its direct restraining the Board of
Muslim Wakfs from entering the disputed property in the
register of wakfs and from dispossessing the respondents
Nos. 1 and 2, except by way of a suit in a civil court of
competent jurisdiction is set aside as it proceeds on the
assumption that sections 27 and 36B of the Act are not
applicable, which question did not arise for its
consideration. The parties are left to take recourse to
their remedies according to law, with advertence to the
observations made above,
Subject to this modification, the appeal fails and is
dismissed. There shall he no order as to costs.
P.B.R. Appeal Dismissed.
169