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Sunni Majlis-e-waqf of Delhi Vs. Custodian of Evacuee Property - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 122-D of 1955
Judge
Reported inAIR1958P& H424
ActsDelhi Muslim Wakfs Act, 1943 - Sections 33 and 63; Administration of Evacuee Property Act, 1950 - Sections 2, 4 and 7
AppellantSunni Majlis-e-waqf of Delhi
RespondentCustodian of Evacuee Property
Appellant Advocate D.D. Chawla, Adv.
Respondent Advocate Charan Singh and; Vaidya Dhar Mahajan, Advs.
DispositionAppeal dismissed
Excerpt:
.....a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - xiii of 1943 the provisions of this act must prevail over any other inconsistent law like that in act no. the definition of the expression 'evacuee property' clearly and unmistajably shows that when deciding the nature of property the custodian is to decide not only whether the property is the property of an evacuee but also in what capacity it was his property or what right or title he had in it......in pakistan are, according to the averments in the application, incapable of managing the waqf property and carrying out the objects and purposes of the waqf. the property has been declared to be evacuee property by defendant no. 1, the custodian of evacuee property, but the case of the applicant is that respondent no. 1 has not accepted that the properly is a waqf property and has refused to hand over its management to it.the applicant claimed various reliefs, including a declaration that the property in question is-waqf property and it should be appointed its muta-walli by the removal of respondents nos. 2 and 3.3. the application has been resisted by respondent no. 1, for respondents nos. 2 and 3 are not in this country. one of the picas urged on behalf of respondent no. 1,.....
Judgment:

Mehar Singh, J.

1. This is an appeal by the plaintiff, Sunni Majlis-E-Waqf, from the order, dated 8-6-1955, of the District Judge of Delhi, dismissing its application, with costs, under Sections 33 and 36 of the Delhi Muslim Wakfs Act, 1943 (Act No. XIII of 1943).

2. On 11-12-1930, by a deed, registered on 2-1-1931, Haji Shahabuddin created a waqf of his immovable property and business for public charitable purposes stated in the deed. He appointed himself the first Mutawalli and provided that after him, his grand sons, respondents Nos. 2 and 3, shall be joint Mutawallis. Haji Shahabuddin died some time about 27-2-1954.

His two grand sons, respondents Nos. 2 and 3, being domiciled in Pakistan are, according to the averments in the application, incapable of managing the waqf property and carrying out the objects and purposes of the waqf. The property has been declared to be evacuee property by defendant No. 1, the Custodian of Evacuee Property, but the case of the applicant is that respondent No. 1 has not accepted that the properly is a waqf property and has refused to hand over its management to it.

The applicant claimed various reliefs, including a declaration that the property in question is-waqf property and it should be appointed its Muta-walli by the removal of respondents Nos. 2 and 3.

3. The application has been resisted by respondent No. 1, for respondents Nos. 2 and 3 are not in this country. One of the picas urged on behalf of respondent No. 1, which has found favour with the learned District Judge, is that the jurisdiction of the civil Court is barred to decide the nature of the property once it has been declared to be evaenne property by him as has been done in. this case.

4. The question whether any property is or is not property belonging to a waqf is for the decision of the District Judge under Section 33 of Act No. XIII of 1943. Section 68 of this Act says:

'Section 68-- Provisions to have effect notwithstanding any other law:The provisions of this Act shall have effect notwithstanding anything contained in any other law or anything having the force of law; and anything in any such law or anything having the force of Taw. which is inconsistent with any of the provisions or this Act, shall, to the extent of such inconsistency, be deemed to be of no effect.'

However, the question whether or not a property is evacuee property is only for the Custodian to decide under Section 7 of the Administration of Evacuee Property Act, 1950 (Act No. XXXI of 1950) and under Section 28 of this Act, save as otherwise expressly provided in Chapter V of this Act, the order of the Custodian is final.

Section 46, Clause (a) bars the jurisdiction of a civil Court to entertain or adjudicate upon any question whether any property or any right to or any interest in any property is or is not evacuee properly. It is an admitted fact that the property in-question has been declared to be an evacuee property by the Custodian.

5. Act No. XIII of 1943 gives jurisdiction to the District Judge to decide whether or not a property is waqf properly and that jurisdiction is to have effect in spite of any other law dealing with the matter. Aet No. XXXI of 1950 gives exclusive jurisdiction to the custodian with regard to evacuee properly and the Custodian has declared the property in question to be evacuee . property. The jurisdiction of a civil Court is barred to question the decision of the Custodian as to the nature of such property.

6. The learned counsel for the appellant contends that having regard to Section 68 of Act No. XIII of 1943 the provisions of this Act must prevail over any other inconsistent law like that in Act No. XXXI of 1950 on the subject-matter of waqf property. But Aet No. XXXI of 1950 is a subsequent legislation and its Section 4 runs:

'Section 4 -- Act to override other laws: The provisions of this Aet and of the rules and orders-made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the lime being in force or in any instrument having effect by virtue of any such law.'

It is evident that the overriding effect of Act No. XXXT of 1950 takes away, in .so far as the question of evacuee property is concerned, the jurisdiction of any other Court or Tribunal under any other .statute which includes Act No. XIII of 1943. The conclusion of the learned District Judge that the provisions of Act No. XXXI of 1950 must prevail over the provisions of Act No. XIII of 1943, the former being the later Act, is sound and no adequate ground has been urged against it.

7. The learned counsel for the appellant has, however, placing reliance on Section 11 of Act No. XXXI of 1950 contended that though the custodian has the exclusive jurisdiction to decide whether or not a property is evacuee property, but the further question whether such property is also trust property subject to a trust for a public purpose of a religious or charitable nature is not a question for the decision of the Custodian, and it is a question for the decision of the Court under Act No, XIII of 1943 in the case of a waqf. Sub-section (1) of Section 11 of Act No. XXXI of 1950 provides:

'Section 11(1) Where any evacuee properly which has vested in the Custodian is properly in trust for a public purpose of a religious or charitable nature, the property shall remain vested in the Custodian only until such time as fresh trustees are appointed in the manner provided by law, and pending the appointment of fresh trustees the trust property and the income thereof shall be applied by Custodian for fulfilling, as far as possible, the purpose of the trust.'

Sub-section (2) of this section is not relevant in this case. It may however be pointed out that after the date of the applicalion of the appellant by Section 5 of the Administration of Evacuee Property (Amended; Act, 1956 (Act No. 91 of 1956), which came into force on 29-12-1956, Sub-section (1) of Section 11 of the principle Act has been substituted by another Sub-scc-Jion, under which power has been taken by the Central Government to appoint trustees of evacuee property which is trust property for a public purpose of a religious or charitable nature.

In so far as the present argument is concerned the only difference made by the amendment is that under the old sub-section trustees were to be appointed in the manner provided by law, but under the substituted sub-section power has been taken by the Central Government to appoint trustees, in other rcspoets there it no change! in the law.

Sub-section (1) of Section 11, whether old or new, provides for the appointment of trustees for the management of the trust property, but it does not deal with the decision of the question whether or not an evacuee property is a trust properiy. The question of appointment of trustees comes afterwards, and the. first question for decision is whether the property is or is not trust property.

The learned counsel for the appellant, as already pointed out, argues that the decision whether the property is or is not trust property is not for the Custodian to give. The reply on behalf of the respondent is that the definition of evacuee property provides a complete answer to this argument and that it is the jurisdiction of the Custodian alone to decide which evacuee properly is trust property and which is not so. In Section 2(f) of Act No. XXXI of 1950 the definition of evacuee property is:

' 'evacuee property' means any property of an evacuee (whether held by him as owner or as a trustee or as a beneficiary or as a tenant or in any other capacity).....'

The rest of the definition is not material for the present purpose. The definition of the expression 'evacuee property' clearly and unmistajably shows that when deciding the nature of property the Custodian is to decide not only whether the property is the property of an evacuee but also in what capacity it was his property or what right or title he had in it.

The question of the capacity in which the evacuee held the property and the question of the nature of the right and title of the evacuee in trie-property are questions that are part of the definition of 'evacuee property', and in giving decision, whether or not a property is evacuee property the Custodian has to give decision according to the definition of 'evacuee property' and it is not clear how he is to ignore one part of the definition while confining his decision to the other part of the definition.

The argument that has been advanced on behalf of the appellant seems to render a part of the definition of the expression 'evacuee property' redundant and attempts to ignore it completely. This is an erroenous approach to what apparently is quite a simple question. It is the jurisdiction of the Custodian alone to deride whether or not a proper-ty is an evacuee properly and in so deciding he is further to decide in what capacity or under what right and title it was the property of the evacuee. In this view, the argument urged on behalf of the appellant is without substance and must be rejected.

8. In consequence, the appeal is dismissed with costs.

D. Falshaw, J.

9. I agree.


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