Skip to content


Andhra Pradesh Wakf Board, Hyderabad Vs. Bowlat Bibi - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal Nos. 57 of 1976 and 45 of 1977
Judge
Reported inAIR1983AP57
ActsWakf Act, 1954 - Sections 3 and 66-C; Public Wakfs (Extension of Limitation) Act, 1959 - Sections 3; Transfer of property Act 1882 - Sections 51
AppellantAndhra Pradesh Wakf Board, Hyderabad
RespondentBowlat Bibi
Appellant AdvocateK. Harnath and ;N. Ramamohan Rao, Advs.
Respondent AdvocateSued Sadatullah Hussaini, Adv.
Excerpt:
.....of limitation) act, 1959 and section 51 of transfer of property act, 1882 - possession of suit property claimed by plaintiff on ground that sale of such property in favour of defendant is illegal, incompetent and void as property granted in wakf - high court pointed two ingredients of definition of 'wakf' - firstly dedication should be by person professing islam - secondly dedication must be for any purpose recognized by muslim law as pious religious or charitable - defendant contended that suit property was not a wakf property it is personal inam granted specifically to predecessor in-title of defendant's vendor long ago and was his private property in which he enjoyed absolute rights and title - defendant is entitled to benefit of section 51 - suit have been barred even with..........in the suit the suit was laid by the plaintiff-wakf board, for recovery of possession of the suit property which is of an extent of three acres in nellore town. the plaintiff's case is that the suit property was endowed since time immemorial for the upkeep and performance of mouzan service in the abbas ali khan masjid. the grant was made to the mosque and was meant for ensuring service of mouzan enjoys the income from the suit property. it is stated that the incumbents of the office of mouzan have unauthorisedly alienated the suit property in favour of the defendant who has no right to be in possession thereof. it is submitted that the sale in favour of the defendant is illegal, incompetent and void. the suit was filed within the extended time provided by the public wakfs.....
Judgment:

1. Common questions arise in these two appeals which arise out of O.S. No. 34 of 1974. A.S. No. 57 of 1976 is preferred by the sole defendant; while A.S. No. 45 of 1977 is preferred by the only plaintiff in the suit The suit was laid by the plaintiff-wakf Board, for recovery of possession of the suit property which is of an extent of three acres in nellore town. The plaintiff's case is that the suit property was endowed since time immemorial for the upkeep and performance of mouzan service in the Abbas Ali Khan Masjid. The grant was made to the mosque and was meant for ensuring service of Mouzan enjoys the income from the suit property. It is stated that the incumbents of the office of Mouzan have unauthorisedly alienated the suit property in favour of the defendant who has no right to be in possession thereof. It is submitted that the sale in favour of the defendant is illegal, incompetent and void. The suit was filed within the extended time provided by the public Wakfs (extension of Limitation) Act, 1959 (hereinafter referred to as the extension Act).

2. The defendant resisted the suit contending that the suit property is not a wakf property, it is a personal inamgranted specifically to the predecessor in-title of the defendant's vendor long ago, and was his private property in which he enjoyed absolute rights and title. The defendant further pleaded that she has perfected her title by adverse possession. She stated that she has purchased the suit property under sale deeds marked as Exs. A-3 to A-8, executed during the years 1943 to 1954 and has been in possession thereof since then. She submitted that the Extension Act does not apply to the suit property. A further objection is raised by the defendant to the effect that, inasmuch as in the proceedings taken under the andhra Inams Abolition Act 1956 it has been held that the suit land does not belong to the plaintiff-institution and also because patta has been granted to the defendant under the said Act, the plaintiff cannot contend that it is the owner nor can it recover possession from the defendant. An additional written statement was filed by the defendant contending that she has made improvements on the suit land bona fide by spending substantial amounts; and that the plaintiff having expressed its willingness to compromise the matter and received a ceratain amount cannot now resile from the said compromise. The plaintiff filed a rejoinder to the additional written statement denying the averments therein.

3. On the above pleadings, the learned District Judge, Nellore framed appropriate issues and recorded the following findings;

i. That the suit property is a public Wakf having been endowed to the mosque viz., abbas Ali Khan Masjid; and that it is not a grant to a specified person as contended by the defendant.

ii. That the suit is barred by limitation in so far as the land covered by sale deeds Exs. A-3 to A-6, is concerned, but it is not barred with respect to the land covered by exs. A-7 and A-8.

iii. The proceedings under the abolition of Inams Act do not decide questions of title therefore do not preclude the plaintiff from maintaining the suit on the basis of its title.

iv. That the defendant has made improvements over the suit property. He directed that the value of such improvements may be determined before the land, which has been decreed is delivered into possession of the plaintiff.

4. It is not necessary to refer to certain other findings which are not relevant in these appeals and are not canvassed before us.

5. Mr. Harnath, the learned counsel for the defendant urged the following contentions;

1. That on a proper construction of the entries and recitals in the Inam Fair register, Ex. A-2, the grant must be held to be in favour of the predecessor- in-title of the defendant's vendor and not in favour of the mosque.

2. That the plaintiff who is seeking to recover the suit property as wakf property is bound to establish that the grant was made by a person professing islam; and that in this case no such proof was been adduced, hence the suit must fail in its entirety.

3. That the decision of the deputy Tahsildar under S. 3 (3) of the Inams Abolition Act 1956 to the effect that this land is not held by an institution viz., the aforesaid mosque is final and conclusive and by virtue of s. 14 of the said Act, cannot be questioned in a civil Court. The plaintiff is, therefore, disentitled from contending in the suit that the suit property is a wakf property.

4. That so far as Ex. A-8 is concerned, it was executed on 1-6-1954 which is beyond the period mentioned in Cl. 3 of the Extension Act. Since the Extension Act does not apply thereto and also because the suit is filed beyond twelve years of Ex. A-8 it must fail so far as the land covered by Ex. A-8 is concerned.

6. Mr. Saadatullah Hussaini, the learned counsel for the plaintiff, while supporting the findings of the trial Judge in so far as they are in his favour, contended that it was not necessary for the plaintiff to allege or prove that the grant in question was made by a person professing islam. He contended that the professing Islam. He contended that the proceedings under the Inams abolition Act cannot affect substantive titles and a suit on title is always open in civil Court. He also questioned the judgment and decree of the trial Court in so far as it has held that the defendant is entitled to value of improvements.

7. The first question which we have to answer is whether the grant is made to the mosque or to the person viz., the predecessor in interest of the defendant's vendor? This question has to be answered mainly on the basis of the recitals in Ex. A-2. In column 2 of Ex. A-2 this grant is described as 'Devadayam'. In column No. 8 it is stated:

'For the service of 'Mauzan' in the mosque of syed Badaruddin Alli Khan - service performed'.

In column 10 it is mentioned: to be so long as the service is performed'. In column 12, it is mentioned '1 persian sannad herewith forwarded'. In column 13 which pertains to the name of the original grantee, the neme syed Maujib is mentioned. In column 14, the name syed sulthan is mentioned describing him as son. The same name is mentioned in columns 15, 16 In col. 17 which pertains to the particulars of the present owner, the name of gale saheb is mentioned who is described as the great-grandson of the original grantee. In column 21, the following matter is found endorsed:

'The inam can be confirmed permanently so long as the service is performed.

In the accounts the inam is entered as service and though in the persian sannad, the Inam is not clearly entered as service one still the word 'mauazan' which is the name of the office of the Inamadar is mentioned in it'.

This is signed by the Deputy collector. There is another endorsement following the above endorsement in column 21, which reads:

'The person that renders the service only enjoys the Inam and not the other descendents of th grantee, which shows that the Inam is a service one'.

This is also signed by the same Deputy collector on the same day. In column 22, it is endorsed: 'confirmed' and is signed by special Assistant.

8. It is not necessary for us to refer to the many cases on this subject since, as pointed out by the learned trial judge, the recitals in Ex. A-2 are almost identical with the recitals in the inam Fair Register considered by the Supreme Court in its decision reported in lakshminarasimhachari v. Agastheswaraswamivaru, : [1960]2SCR768 the Supreme Court has set out the entries in the various columns of the Inam fair registers before them and a comparison of recitals in both the IFRs would bear out that they are substantially similar. On these recitals, the Supreme Court found that the grant was in favour of the temple concerned therein and not to the person. In view of the said decision, any further discussion is unnecessary. We accordingly hold, in agreement with the trial judge, that the grant is in favour of the mosque and not in favour of the person i.e. the predecessor in interest of the defendant's vendor.

9. The next contention of Mr. Harnath is that unless the plaintiff pleads and establishes that the grant was made by a person professing Islam, it would not be a wakf; and since, in this case no such averment is made or any proof is adduced, the suit must fail. We must however. Observe that this contention was not urged in the Court below However, since Mr. Harnath argued this question at length, we propose to deal with the same.

10. The definition of 'wakf' in cl 910 of S. 3 of the Wakf Act, reads:

'(1) 'Wakf means the permanent dedication by a person professing islam of any movable or immovable 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 'Wakf' means any person making such dedication'.

A reading of the definition of 'wakf' would show that the main limb of the definition lays down two ingredients viz., that the dedication should be by a person professing Islam and secondly, that the dedication must be for any purpose recognised by Muslim law as pious religious or charitable. The definition then proceeds to include certain other grants within the definition of expression 'wakf'. Clause (ii) in the second half of the definition includes 'grants (including mashrut-ul-Khidmat) for any purpose recognised by Muslim law as pious religious or charitable'. 'Mashrut-ul-khidmat' means burdened by condition of service. According to this definition, the suit land would be a grant of the nature contemplated by clause (ii) even if it is assumed, for the sake of argument, that the grant was in favour of th predecessor in interest of the vendor of the defendant. Now in the case of such grants, it is not required that it should have been made by a person professing Islam all that is required is that the grant should be for a purpose recognised by Muslim law as pious religious or charitable. The contention is that the two requirements or ingredients as they may be called, in the main limb of the definition, equally apply to grants contemplated by Cl. (ii). But if it were so, there was no reason for the parliament to repeat the words 'for any purpose recognised by Muslim law as pious religious or charitable', in Cl. (ii) because those words are already found in the main limb of the definition. Repeating of these words while omitting the words 'by a person professing Islam' in Cl. (ii) would indicate that the requirement that the dedication should be by a person professing Islam does not apply in the case of grants contemplated by Cl. (ii) This would be more evident if we look at Cl. (i) in the second half of the definition. Wakf by user means a wakf which is being used as wakf since time immemorial and where the identity of the grantee is not known nor is the time of grant verifiable. If the appellant's contention is correct, even in the case of a wakf by user. It should be established that grant was made by a person professing islam, which is an impossibility. We are, therefore of the opinion that in the case of grants burdened with the condition of service contemplated by Cl. (Ii) in the second half of the definition, it is not necessary to prove that the grant was made by a person professing Islam.

11. The learned counsel for the defendant strongly relied upon a Bench decision of the madras High Court reported in M.S. Wakf Board madras v. Khazi Mohideen, : AIR1974Mad225 . The said decision certainly supports the construction canvassed for by the learned counsel for the defendant with great respect to the learned judges of the madras High Court who decided the said case. We are unable to bring ourselves to agree with their reasoning or conclusion. As we have pointed out hereinbefore, if the two ingredients or requirements in the main limb of the definition are applicable to grants contemplated by Cl. (ii) as well there was no point in the parliament repeating the words 'for any purpose recognised by Muslim law as pious, religious or charitable' in cl. (ii) over again, while simultaneoudly omitting to repeat the words 'by a person professing Islam'. It is a well-settled principle of interpretation of statutes that no words in a statute should be construed as superfluous and unnecessary. The repeating of the second requirement while omiting the first requirement thus clearly indicates that the first requirement in the main limb of the definition does not apply in the case of such grants it must also to be remembered that the definition clause having defined 'Wakf', proceeds to include certain other grants as well within the definition of 'Wakf' by widening the definition for the purpose of the Act.

12. The learned counsel then contended that, if grants made by persons other than those professing Islam are also included within the definition of 'wakf' in cl. (1) of S. 3, the parliament would not have enacted S. 66-C of the Act. Section 66-C reads as follows:-

'Notwithstanding anything contained in this Act where any movable or immovable property has been given or donated by any person not professing Islam for the support of a wakf being -

(a) a mosque idgah, imambara, dargah, khangah or a maqbara;

(b) a Muslim graveyard;

(c) a choultry or a musafarkhana, then such property shall be deemed to be comprised in that wakf and be dealt with in the same manner as the wakf in which it is so comprised'.

For appreciating this contention, it is necessary to mention that what we have said above applies only in the case of grants mentioned in cl. (Ii) in the second half of the definition, but has no application to the main limb of the definition. Now coming to sec. 66-C it is concerned for a different purpose. What all sec. 66-C says is that, where any movable or immovable property has been given or donated by a person not professing islam for the support of a Wakf being (I) a mosque idgah, imambara, dargah, khandah or a maqbara; (ii) a Muslim graveyard; and (iii) a choultry or a musafarkhana, then such property shall be deemed to be comprised in the wakf and be dealt with in the saem manner as the wakf in which it is so comprised. Another aspect to be noticed is that while S. 66-C speaks of properties being donated or given for the support of specified institutions the definition of 'wakf' is general and includes all purposes recognised by Muslim law as pious, religious or charitable. This is not a case which falls within or contemplated by s. 66-D chennakesav reddi, J., has observed in A. P. Wakf Board v. Somaiah : AIR1980AP199 that, S. 66-C only contemplates a non-Muslim donating certain properties to an existing wakf, but that he cannot create a wakf as such. It is not really necessary for the purpose of the present case to either consider the scope of S. 66-C or to express any opinion with respect to the decision of the learned Judge. It is sufficient for our purpose to observe that, on a proper construction of the definition it is not necessary in the case of grants contemplated by Cl. (Ii) in the definition that they should be proved to have been dedicated by a person professing Islam.

13. In that view of the matter, it is unnecessary for us to go into the question as to what is that effect of publication of the list under s. 5 (20 of the Act and the non-filing of the suit within the time prescribed by S. 6 reference may however be made to a decision of a bench of this Court in c. Kotaiah v. Wakf Board of A.P. : AIR1978AP34 , Wherein it is held that S. 6 contemplates suits to be filed only by the Board or the Mutawalli or the persons interested in the wakf and that persons who do not fall within the above categories need not file the suit contemplated by S. 6 it is also pointed out in the said decision that the commissioner, who makes survey under S. 4 cannot enquire and does not decide the question whether a particular property is a wakf or not. Therefore, it is held that the publication of the list under s. 5 (2) cannot be treated as conclusive on the question whether a paticular property is a wakf or not. But as pointed out by us above, this aspect is really unnecessary for the present purpose inasmuch as on the basis of Ex. A-2 we have held that it is a wakf and we have also negatived the appellant's contention that the plaintiff was under an obligation to prove that the grant in question was made by a person professing islam.

14. Now coming to the third contention, it must be noted that the defendant has not even cared to file the order of the appropriate authority under section 3 (3) of the Inams Abolition Act much less the order granting patta to her under S. 7 thereof. No explanation is forthcoming why the aforesaid orders are not filed into the Court Mr. Harnath, however seeks to place reliance on two circumstances viz., (I) the recitals in Ex. B-1 an order of the special Deputy Tahsildar (inams), nellore; and (ii) the alleged failure of the plaintiff to deny in the rejoinder filed by the plaintiff, the facts stated in para 10 of the written statement. We shall first refer to Ex. B-1, This is an order passed on 17th May, 1965 rejecting the objections urged by the wakf Board and certain other group of persons who claimed that the land mentioned there in belongs to the Institution In Ex. B-1, there is a reference that among other lands 'TD No. 562 Nellore II village were decided to have been held by not (sic) institution.' At another place, while setting out the contentions of one of the objectors, it is stated: 'a decision was given that the land concerned herein does not belong to an institution'. We are of the opinion that this is too thin a material to hold that there has been a decision by a competent authority under S. 3 (3) of Inams Abolition Act that the suit land is not held by the institution. Unless the order under S. 3 (3) is produced, it would not be possible for us to examine whether it is an order within the meaning and interms of S. 3 (3). Such a course also denies an opportunity to the other side to contend that the said order not having been arrived at in accordance with law, is not a valid or an effective one. We have already observed that no explanation whatsoever is forthcoming as to why the original order under section 3 (3) has not been filed. In the absence of the above material and only on the basis of certain reference found in Ex. B-1, it is not possible for us to hold that there has been a decision under S. 3 (30 in so far as the suit land is concerned, that it does not belong to the institution or that the present suit is barred under sec. 14 of the Inams abolition Act.

15. Coming tothe alleged failure of the plaintiff to deny the facts stated in the written statement is concerned, it must be observed that no rejoinder whatsoever was filed by the plaintiff to the written statement nor was he bound to file one. It appears that after the entire trial was over and the matter was posted for arguments, the defendant came forward with an additional written statement to which the plaintiff filed the rejoinder. This rejoinder is, therefore confined only to the facts stated in the additional written statement. It therefore cannot be said that the plaintiff has failed to deny the averments in para 10 of the written statement, having filed the rejoinder, for the above reasons we reject the third contention of the learned counsel for the appellant.

16. We, however, find that the fourth contention of the learned counsel merits acceptance. Ex A-8 is executed on 1-6-1954 section 3 of the Extension Act reads as follows;-

'Where a person entitled to institute a suit of the description referred to in art. 142 or Art. 144 of the first schedule to the Indian Limitation Act. 1908, for possession of any immovable property forming part of a public wokf, or any interest therein has been dispossessed, or has discontinued the possession, or has discontinued the possession, at any time after the 14th day of August , 1947 and before the 7th day of may, 1954 or as the case may be, possession of the defendant in such a suit has become adverse to such person at any time during the said period, then notwithstanding any thing contained in the said Act, the period of limitation in respect of such a suit shall extend up to the 15 th day of August, 1967.'

A reading of sec. 3 of the Extension Act shows that the extension of time for filling suits is availabe only where dispossession is after 14th August 1947 and before yth may, 1954. If dispossession or commencing of the defendant's adverse possession is anterior to or subsequent to the said period, the benefit of the extension Act is not available. Now. In this case, Ex A-8 is dated 1-6-1954. In other words, the defendant came into possession of the land covered by Ex a-8 only on 1-6-1954 and that is the date on which her adverse possession has comenced. This is also the date on which the mosque must be deemed to have been dispossessed. Since the said date is beyond the period contemplated by s. 3 of the Extension Act, the benefit of the extended period of limitation is not available tot he plaintiff. Admittedly the suit having been instituted far beyond twelve years of Ex. A-8 is barred in so far as the land covered by Ex. A-8 is concerned.

17. Now coming to the appeal preferred by the plaintiff-wakf Board the only contention urged by the learned counsel for the Wakf Board is that the lower Court was not justified in holding thatthe defendant is entitled to the value of improvements and that the plaintiff, in law, is bound to get improvements valued and pay its value to the defendant before he can take posession of the land from the defendant under S. 51 of the T.p. Act. The contention of the learned counsel is that there is no proof that improvements were effected by the defendant in good faith. But what s. 51 of T.P. Act requires is that improvements must have been made by a transferee who believes in good faith that he is absolutely entitled thereto. In this case there are no grounds excluding good faith on the part of hte defendant. She was under the bona fide impression that the grant was in favour of the predecessor in interest of her vendor; and further she has been purchasing the properties from him right from 1943 onwards up to 1954. We, therefore, agree with the trial judge that the defendant is entitled to the benefit of sec. 51 of T.P. Act. It must also to be noticed that the plaintiff is succeeding to the extent of the land covered by Ex. A-7 only because of the extended period of limitation provided by the Extension Act. But for it the suit would have been barred even with respect to the land covered by Ex. A-7 in such a case, equities demand that the plaintiff should compensate the defendant for improvements made by her on the land.

18. For the above reasons, A.S. 45 of 1977, preferred by the plaintiff, is dismissed with costs. In so far as A.A. 57 of 1976 preferred by the defendant is concerned, it is allowed in part viz., in so far as the land covered by Ex. A-8 is concerened and the suit is dismissed to that extent. The trial court's decree is confirmed only with respect tothe land covered by Ex. A-7 the direction given by the Court below in para 14 of its judgment shall continue to be operative. In the circumstances of the case, there shall be no order as to costs in A. S. 57 of 1976.

Order accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //