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Delhi Wokf Board Vs. Shrafat Husain - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 245 of 1973
Judge
Reported in1974RLR85
ActsWakf Act, 1954 - Sections 57
AppellantDelhi Wokf Board
RespondentShrafat Husain
Advocates: Jagdishwar Sharma and; M.L. Rawal, Advs
Excerpt:
.....regarding interpretation of section 57 and 59 and impleadment of petitioner board - term 'title to wakf property' in impugned provisions should be given widest meaning - cases whether certain property in wakf property or not should also be included - object of act of 1954 is 'better administration and supervision of wakfs' - under provision of act of 1954 board empowered to consider all matters relating to wakf - board entitled to be imp leaded - sections 57 and 59 also applicable irrespective of fact whether suit property is wakf property or not is admitted or not. - - (4) by the first of the aforesaid applications, the board prayed that inasmuch as the aforesaid suit related to 'title to wakf property',notice of the suit by the trial court to the board was mandatory by virtue of..........by property bearing municipal no. 2397 and 2398 and on the other by a mosque which is apparently a wakf property, while one door of the chhajja opens in the mosque the other abuts on a public street, although respondent no. 1 who had admittedly purchased property bearing municipal no. 2397 and 2398 after the same had been declared as an evacuee property and had been sold by auction by the rehabilitation department, contends that the said chhajja, though bearing a separate municipal number, formed part of the property purchased by the said respondent and that originally the chhajja had an extension and through the extension the chhajja was connected with the property of the said respondent by an inter-communicating door. respondent no. 1 filed a suit for recovery of the said chhajja from.....
Judgment:

H.L. Anand, J.

(1) The questions that this petition U/S 115 of Civil Procedure Code . raises is as to the correct interpretation and true construction of the provisions of Sections 57 and 59 of the Wakf Act, 1954, as to the right of the petitioner to be impleded in the proceedings out of which the impugned order has arisen and to have the decree sought to be executed declared void. The petition has been filed in the following circumstances :

(2) It appears that a chhajja bearing municipal No 2393, situated in gali Imliwali, Phatak Habash Khan, Delhi is surrounded on the one side by property bearing municipal No. 2397 and 2398 and on the other by a mosque which is apparently a wakf property, while one door of the chhajja opens in the mosque the other abuts on a public street, although respondent No. 1 who had admittedly purchased property bearing municipal No. 2397 and 2398 after the same had been declared as an evacuee property and had been sold by auction by the Rehabilitation Department, contends that the said chhajja, though bearing a separate municipal number, formed part of the property purchased by the said respondent and that originally the chhajja had an extension and through the extension the chhajja was connected with the property of the said respondent by an inter-communicating door. Respondent No. 1 filed a suit for recovery of the said chhajja from respondents No. 2 & 3, who were said to be in illegal occupation thereof, being suit No. 327/68. The said respondents No. 2 and 3 resisted the suit principally on the ground that the said chhajja did not form part of the property of which respondent No. 1 claimed to be the owner and the trial court by its judgment and decree of January 6, 1971 returned the finding that the said chhajja formed part of the property purchased by respondent No. 1. The argument urged on behalf of respondents No. 1 and 2 in th& course of the hearing, though not raised in the written statement, that the said chhajja formed part of the adjoining mosque and was wakf property was repelled and the suit of the respondent No. 1 for possession of the said chhajja was decreed. The relief of mandatory injunction claimed by the plaintiff was, however, turned down. The aforesaid judgment and decree have since been upheld in appeal R.C.A. 15/71 and R.S.A. against the First Appellate judgment and decree was, turned down in liming by this Court. 87

(3) When respondent No. 1 sought to dispossess respondents No. 2 and 3 in execution of the said decree, the petitioner, the Delhi Wakf Board, established under Chapter Iii of Wakf Act, 1954, made two applications to the executing Court. One under Section 57 and 59 of the Wakf Act, 1954 and the other under Order 21 Rule 5 a of the Code of Civil Procedure.

(4) By the first of the aforesaid applications, the Board prayed that inasmuch as the aforesaid suit related to 'title to wakf property', notice of the suit by the trial Court to the Board was mandatory by virtue of the provisions of sub-section (1) of Section 57 of the Act and that, the trial Court having failed to issue the notice, the decree passed in the suit was liable to be declared void and the petitioner was entitled to be imp leaded as a party to the proceedings before the executing Court.

(5) By the second application, it was contended that the property sought to be proceeded against in execution of the decree was wakf property by virtue of a declaration made in that behalf in the Delhi Gazette on April 16, 1970, and claim of the Board to the property should be investigated and decided before any proceeding was taken in execution.

(6) Both the applications were contested on behalf of respondent No. 1 and by the impugned order the executing Court has dismissed them. The application of the petitioner under Section 57 and 59 of the Act had been turned down on the ground that on their true construction, Sections 57 and 59 apply to cases where the property was admittedly a wakf property and had no application where the question whether the property was or was not wakf property was in dispute and that no notice of the suit, was, thereforee, necessary to the Board nor the absence of it invalidated the decree nor was the petitioner entitled to be imp leaded as a party to the execution proceedings.

(7) The second application was turned down on the ground that Order 21 Rule 58 of the Code of Civil Procedure applied only when the property belonging to a third party was sought to be attached in execution of a decree and had no application to a decree for possession. The contention of the Board that the position has since changed because the judgment debtor had delivered the possession of the disputed chhajja to the Board on January 5, 1973 during the pendency of the proceedings was repelled on the ground that the Board having taken possession of the property without the intervention of the Court, rule of lis pendence would apply and the Board would be deemed to be holding possession of the property in suit for and on behalf of the judgment debtors and not in its own right. The executing Court also noticed that the Board had since filed a civil suit for a declaration that the suit property was wakf property and the prayer for interim injunction for restraining the decree holder from taking possession of the property in execution of the decree had also been turned down by the trial Court as well as by the First Appellate Court.

(8) It is, thereforee, necessary to determine the correct interpretation and true scope of the provisions of Sections 57 and 59 of the Act with reference to the various provisions, as indeed, the overall scheme of it. The Wakf Act, 1954, according to its preamble is 'an Act to provide for the better administration and supervision of wakfs.' The term wakf is defined by Section 3 (I) as meaning '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 ; (i) grants (including mashrut-ul-khidmat) for 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.'

(9) Chapter Ii provides for survey of wakfs by the Commissioner of wakfs and the publication of report in respect of wakf which after it has been examined by the Board constituted under the Act, has to be published and, unless it is modified pursuant to a decision of a Civil Court under sub-section (1) of Section 6 of the Act, becomes final and conclusive. Under Section 6 (1) of the Act, if any question arises as to whether a particular property is wakf property or not or whether a wakf is a Shia or Sunni wakf, the mutawalli of the wakf or any person interested therein may file a suit in a civil Court of competent jurisdiction for the decision of the question and the decision of the civil Court has been made final. Chapter Ii A deals with establishment of Central Wakf Council while Chapter Iii provides for the establishment of Boards and their functions. Section 15 occurring in Chapter Iii provides that, subject to any rules that may be made under the Act, the general superintendence of all wakfs in a State shall vest in the Board established for that State and it is duty of the Board so to exercise its power under the Act as to ensure that the 'wakfs under its superintendence are properly maintained, controlled and and administered and the income thereof is applied to the objects and for the purposes for which such wakfs were created or intended Chapter Iv provides for registration of the wakfs and makes it compulsory for all wakfs being registered with the Board. Section 27 empowers the Board of its own motion to make enquiry if it has reason to believe that any property is wakf properly and to decide the question whether a particular property is wakf property or not or whether a wakf was Sunni or Shia wakf and the decision of the Board on any such question, unless revoked or modified by a civil Court of competent jurisdiction, has been made final.

(10) Chapter V deals with mutawallis and wakf accounts while Chaper Vi deals with finances of the Board. Chapter VI[ deals with judicial proceedings and Sections 57 and 59 which occur in this chapter deal with notice of suits by Courts to the Board, the consequences if notice was not given and the right of the Board to be made a party to suits and proceedings relating to wakf property. :Section 60 provides that no suit or proceeding in any Court by or against the mutawalli of a wakf relating to title to wakf property or the rights of the mutawalli shall be compromised without sanction of Board.

(11) Sections 6, 27, 57, 59 and 60, which would particularly fall for consideration in determining the question in controversy in the present case are in the following terms : '6. (1) If any question arises whether a particular property is wakf property or not or whether a wakf 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 civil court after the expiry of one year from the date of the publication of list of wakfs under sub-section (2) of section 5. (2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any wakf shall be stayed by reason of the pendency of any proceeding... 57 (1). In every suit or proceeding relating to title to wakf property or right of mutawalli, Court shall issue notice to Board.... '59, In any suit or proceeding in respect of a wakf or any wakf property by or against a stranger to the wakf or any other person the Board may appear and plead as a party to the suit or proceeding.' '60. No suit or proceeding in any court by or against the mutawalli of a wakf relating to title to wakf property or the rights of the mutawalli shall be compromised without the sanction of the Board.'

(12) The impugned order was challenged on behalf of the petitioner only in so far as it dismissed petitioner's application under Section 57 and 59 of the Act and on the solitary ground that the impugned order was based on a misconstruction of the aforesaid provisions and that on a true construction of these provisions, it must be held that even if the suit involved a dispute as to whether a particular property was or was not a wakf property, the provisions of Sections 57 and 59 of the Act would be attracted and in the absence of any notice to the Board, the decree passed in the suit stood vitiated entitling the petitioner to be imp leaded as a party in the execution proceedings and that the executing Court was under a legal obligation to investigate the question whether the property in dispute was a wakf property or not after hearing the petitioner and decide the question according to law.

(13) On the other hand, it was alleged on behalf of the decree holder that the provisions of Sections 57 and 59 in terms apply only to a suit or proceedings relating to a 'title to wakf property' and contended that a suit where the dispute was whether a particular property was or was not a wakf property, could not be said to be a suit relating to a 'title to wakf property' and that the application of the aforesaid two Sections must, thereforee, be confined to cases where the property was admittedly wakf property and the question arose only with regard to title to it.

(14) After hearing learned counsel for the parties and on an examination of the provisions of Section 57 and 59 of the Act in the context of the scheme and the various provisions of it, it appears to me that the contention of the petitioner must prevail. In the first instance, even the ordinary meaning of the term 'title to wakf property' would not exclude cases where the question involved is whether a particular property is a wakf property or not or whether the suit relates to title to it or not and there is no reason why effect should not be given to the plain language of the Section.

(15) In the second instance, it would appear to be consistent with the scheme of the Act, the object sought to be achieved by the statute and the general policy underlying it to give the terms 'relating to a title to wakf property' the widest possible meaning so as to embrace within its sweep all questions that relate to title to a property which may either be alleged to be a wakf property or may be proved to be a wakf property including the question whether a particular properly is or is not a wakf property. As has been noticed above, the preamble clearly sets out that the purpose of the statute was to ensure 'better administration and supervision of wakfs' and this duty has been enjoined on the Board by the provisions of Section 15 (1) of the Act according to which 'it shall be the duty of the Board so as to exercise its powers under this Act as 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 purposes for which such wakfs were created or intended.' By virtue of the provisions of Sections 6 and 27, the Board is empowered to decide question if a particular property is wakf property or not and that decision, except in so far as it may be modified by a civil Court, has been made final and conclusive. By the very nature of the functions assigned to the Board, the Board is, thereforee, vitally interested in all proceedings in which question relating to wakf or wakf property is involved and it is but proper that the Board would have the right to be imp leaded as a party in all such suits or proceedings and a duty is cast on the Court trying such proceedings to issue notice to the Board of alt such suits or proceedings so that the Board is able to protect public interest. The consequence of failure to issue notice to the Board of such proceedings further reinforces the importance of the participation of the Board in all such proceedings. The provision of Section 60 lends further support to it.

(16) In the third place, if restricted meaning is given to the term 'title to wakf property' so as to confine it to cases where the property was admittedly wakf property as is contended by the decree-bolder the object sought to be achieved by the said provisions is likely to be frustrated. It is also difficult to conceive how such proceedings would ever arise because if the property is admittedly wakf property, where is the question of any one's title to it. The question of title to wakf property would only arise where either the wakf or any of his heirs or person claiming to be the owner of the property adverse to the wakf makes a claim that the wakf was void in law for whatever reason and that the property was, thereforee, not wakf property in spite of the purported act of dedication and that the suitor was or continued to be a repository of title to such property. In all such cases, the ultimate question would have to be whether the property was wakf property or deemed to be wakf property or could be treated in law to be wakf property.

(17) Fourthly, if a restricted meaning is given to the term 'wakf property', it would have the effect of excluding from the purview of Sections 57 and 59 cases where question was whether or not a certain property is wakf property or not and thereby creating a peculiar anamoly inasmuch as while in cases covered by Sections 57 and 59, the Board would not only be entitled to be made a party to the proceedings but be entitled to a notice of it and to an order for the annulment of a decree, if notice was not given, in cases in which the question was whether a property was or was not wakf property as envisaged in Section 6 (1) and Section 27 of the Act, the Board would not be entitled even to be made a party to the proceedings except in so far as may be obligatory by virtue of the relevant provisions of the Code of Civil Procedure and if in such a case the Board was not made a party, the only consequence.would be that the Board would have to resort to independent legal proceedings to have the decree made in such proceedings annulled thereby leading to multiplicity of proceedings. Such a situation could not have been envisaged by the legislature as it would appear to be conterary to public policy, which clearly points to the avoidance of multiplicity of proceedings.

(18) Lastly, if a restricted meaning is given to the aforesaid terms the easiest course for any one interested in avoiding the vice of the aforesaid provisions and the adverse consequences of non-compliance with the provisions of Section 57 (1) would be to deny the allegation that the property in dispute was wakf property and thereby frustrate the object of the said provisions.

(19) For all these reasons, I am of the view that Sections 57 and 59 of the Act would embrace within their sweep suits or proceedings which relate to title to wakf property whether or not it is admitted that the property is wakf property or relate to title to property which is claimed by one party to be wakf property while the allegation is denied by the other and that in all such suits or proceedings, the Board is entitled to plead as a a party by virtue of Section 59 of the Act and to notice by virtue of the provisions of Section 57 of the Act and to be entitled for an order for the annulment of the decree that may be made in such proceedings without notice to the Board.


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