1. The present Second Appeal is filed by the original plaintiff. In this appeal the following two substantial questions of law are formulated.
(1) Whether on the facts and in the circumstances of the case and having regard to the true legal position, the lower Appellate Court was right in law in holding that the appellant being merely a mutawalli had no right to file the present suit?
(2) Whether the lower Appellate Court was right in holding that in the absence of a notice served upon the Wakf Board under S. 56 of the Wakf Act 1954, the present suit was not maintainable?
2. The relevant facts leading to the present appeal may be stated as under: -
The plaintiff has filed the suit against defendant 1, the Bhuj Municipality, for declaration that defendant 1 has no right to make use of suit Kabrastan or to make Park or make any other construction on the suit Kabrastan which is owned and is in possession of the plaintiff that is Mutawalli and for permanent injunction to restrain defendant 1 from making use of the suit Kabrastan or from making any construction on it and to restrain defendant 1 from obstructing the plaintiff from making use of it. The plaintiff has also claimed relief of mandatory injunction to direct respondent 1 to remove the construction made by it on the suit Kabrastan and to direct it to remove the articles kept by it on it. It was averred that there is a main Idgah that is the place where the muslims of Bhuj observe namaz. It is situated on the western side of Hamisar tank. It is registered as 'Wakf' in Kutch Wakf Board and its registration number is 130. There is a Kabrastan of Muslims adjoining the above place and the plaintiff is the owner of the above Idgah and Kabrastan. It was alleged that defendant 1 has started removing graves from Kabrastan and constructing a public park thereon and that defendant 1 has no right to do so. The plaintiff informed defendant 1 not to make any construction on the suit Kabrastan. However, as no heed was paid to his request he filed the suit for declaration and injunction against defendant 1. But in the suit the contention was raised that the suit was riot maintainable without statutory notice and therefore with the permission the earlier suit was withdrawn and thereafter after serving statutory notice fresh suit is filed as defendant No. 1 did not stop the work in spite of statutory notice.
3-4. In the suit Kutch Wakf Board was joined as defendant 2 but the plaintiff has claimed only reliefs against defendant 1 and defendant 2 was joined as mere formal party. In fact defendant 2 has filed the written statement at Exh, 14 and has supported the plaintiff.
5. Defendant 1 filed the written statement at Exh.18 and did not admit, the contents of the plaint. It was contended that the plaintiff had given application to the Collector, Kutch and the Collector has also passed an order on it and that thereafter defendant 1 has not made any construction. It was denied that the land on which the construction is made for Idgah is used for observing namaz and the other land which is open is used by the public for parking hand carts, motors, horse carriages etc. and they used this land since the time of the construction of Khengar Park. It was also contended that if it is registered in the Wakf Board it is not legal and it is not final and binding to others. In veiw of the above pleadings the learned trial Judge who heard the said suit being Regular Civil Suit No. 40 of 1973 raised the necessary issues at Exh.19 and held that the plaintiff is in possession of Kabrastan which is in Survey Nos. 1567 and 1570. It was also found that defendant 1 was trying to encroach upon the suit property. It was also held that defendant 1 has illegally made construction over the suit property and ultimately he held that the plaintiff is entitled to the declaration and injunction as prayed for and passed decree declaring that defendant 1 has no right to make use of the suit Kabrastan land bearing Survey Nos. 1567 and 1570 anti that defendant 1 has no right to make any construction or to make a public park on the suit Kabrastan bearing Survey Nos. 1567 and 1570. Defendant 1 was permanently restrained from making use of or from making any construction on the suit Kabrastan and further restraining from obstructing the plaintiff from using the suit Kabrastan and defendant 1 was directed to remove the construction made by it and to remove the articles kept by it on the suit property. On the point of costs defendant 1 was directed to bear its own costs and to pay the costs of the plaintiff and defendant 2 to bear its own costs.
6. Being aggrieved by the aforesaid judgment and decree dt. 7-4-1975 the Bhuj Municipality agreed and they preferred Regular Civil Appeal No. 59 of 1975 before the Assistant Judge, Kutch at Bhuj.
7. On the arguments made before the learned Assistant Judge, the learned Assistant judge framed two points for, determination: -
(1) Whether the lower Court has erred in holding that the plaintiff is in possession of the suit property and hence he is entitled for the declaration?
(2) Whether the lower Court has erred in holding that the plaintiff has right to file the suit and the plaintiff is entitled for the declaration and injunction?
The learned Assistant Judge answered both the points in the affirmative and allowed the appeal by setting aside the judgment and decree passed by the trial Court.
8. Being aggrieved by the aforesaid judgment the present appeal is filed by the original plaintiff.
9. Respondent 1 that is defendant 1 has filed Cross-Objections.
10. Mr. A. K. Mankad, the learned Advocate for the appellant submits that this is Second Appeal and the Cross-objections are filed in Second Appeal and, therefore, in the Cross-objections also there should be substantial error of law. Mr. Y. S. Mankad has challenged the finding about the ownership of the suit land of the Wakf. The learned Assistant Judge has not accepted the arguments made on behalf of the Bhuj Municipality that the said property vests in the municipality on the basis of S. 67 of the Gujarat Municipalities Act. The same arguments are advanced before me by the learned advocate Mr. Y. S. Mankad. It may be stated that the learned trial Judge has carefully appreciated the entire evidence oral as well as documentary. On behalf of the Bhuj Municipality only the Chief Officer, Kusumrai was examined and he has stated in his deposition that they have no document to show that the suit land vests in defendant 1 except the provisions of the Gujarat Municipalities Act. He also relies on clause (K) of S. 87 of the said Act. On perusal of the said Section it is clear that the said Section prescribes the duties of the municipality and el. (K) prescribes the duty of acquiring and maintaining, cleaning and regulating places for the disposal of the dead, and disposal of unclaimed dead bodies and carcasses of dead animals. It is not the case of the municipality that the present suit land was acquired for that purpose and this Section does not speak of any vesting in the municipality. It speaks only about the duties. However, the relevant Section is Section 80. Sub-section (2) of Section 80 of the said Act speaks about the properties to be vested in and belonging to the municipality. But cls. (a), (b), (c) and (d) do not include the suit land because it does not fall in any of the clauses and Mr. Y. S. Mankad concedes that it does not fall in any of the four clauses. There is also clause (e) to the said subsection which provides all lands and public buildings transferred to it by the Government by gift or otherwise, for local public purposes. It may be stated that there is nothing on the record to show that the suit land was transferred by the Government either by gift or otherwise to Bhuj Municipality for local public purposes. In that view of the matter the contention of the municipality that it vests in the municipality cannot be accepted.
11. However, it is for the plaintiff to establish that this is a wakf property. For the purpose the plaintiff has first relied on exhibit 104 which only speaks about the name and address of the wakf as Idgah, Near Sharbag, Bhuj and its registration number is 130 and the object of the said wakf is religious for offering namaz. With a view to ascertain what is the suit property, there is a map at Exh. 66 and in the said map Idgah is on survey No. 1567 while the present suit is for survey No. 1570. On this point the plaintiff has also relied on the entries irr Sud Book. They are entries exhibits 63, 64 and 65. Entry 63 is in respect of survey No. 1567, that is also shown as Kabrastan and it admeasures; 18 gunthas of the land. Thereafter there are entries Exh. 64 in respect of Idgah for survey No. 1568/1/2 that is the land which admeasures; 6 gunthas and 4 gunthas. That is known as Idgah's Khadaba. That is waste land. There is no dispute with regard to the land of survey No. 1567 in the present suit and the last is entry Exh. 65 which is in respect of survey No. 1570 which is also known as Kabrastan near Idgah and it is also treated as waste land of Kabrastan. It is of 12 gunthas and that is the subject-matter of the suit. It may be that these entries of Sud Book are made in S. Y. 1949. So these entries speak about the user thereof before 90 years and they stood in the name of Kabrasthan and Idgah as stated above. Therefore, these entries support the case of the plaintiff that this land is used as Kabrastan land. It may be stated that the plaintiff is not in a position to produce the documents of title but he only relies on the entries. But there are also further entries which are produced by Talati Mu1ji in his deposition at Exh.67 and these entries are Exhibits 69 and 70. In the record of rights also they were shown as Partar from the beginning. Thus there is sufficient evidence to establish that the suit land is used as Kabrastan land. In that view of the matter both the courts have properly appreciated the evidence on the point and I do not find any merit in the Cross-objections.
12. Therefore, the next point to be considered would be with regard to the two points raised while admitting the appeal.
13. It would be convenient to deal with the second point first. So far as the point of notice is concerned, S.56 of the Wakf Act, 1954 provides that no suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Actor of any rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims. Now this provision clearly discloses that it should be a suit in which relief should be claimed against the Board. It is true that defendant 2. Kutch-Wakf Board is joined as party but no relief is claimed against it. Even if defendant 2 was not joined as party, under S. 57 of the said Act, the notice would have been issued against the Board by the Court. Therefore, as defendant 2 is joined as party without claiming any relief, it is a proper party and, therefore, it would not attract the provisions of S. 56 which require statutory notice before filing of the suit. When S. 56 not attracted in the facts of the present case, it cannot be said that in absence of the notice served on the Board before filing of the suit, the present suit is not maintainable. Hence the Appellate Court below has committed error in answering that point in affirmative.
14. Mr. Y. S. Mankad submits that Mutawalli is a mere Manager and he is not a trustee and, therefore, wakf property vests in him and, therefore, as mere Manager he has no right to file a suit. He further submits that there is no provision in the Wakf Act which authorises him to file a suit in respect of the wakf property and, therefore, the suit filed by him is not maintainable. While Mr. A. K. Mankad submits that though strictly speaking the Mutawalli is not a trustee in the technical sense but relies on a case Saadat Kamel v. A. G., Palestine reported in and submits that the office of Mutawalli provides the continuous representation of the wakf and of all interested therein and in that view of the matter he is not merely a Manager but Administrator also and, therefore, he can file the suit. He also relied on the provisions of 0. XXXI R.1 which provides that in all suits concerning property vested in a trustee, executor or administrator where the contention is between the persons beneficially interested in such property And a third person, the trustee, executor or administrator shall represent the person so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made parties.
15. In support of his contentions Shri Y. S. Mankad has relied on the judgment in the case of Bibi Siddique Fatima v. Mahmood Hasan reported in : 3SCR886 , In the said case the facts were as under -
16. The plaintiffs case was that the disputed property belonged to her the defendant was inducted as a tenant of the Kothi on and from 1st of March, 194 on a rental of Rs. 60/- per month. He paid rent up to May, 1950 but did not pay any rent thereafter. In the year 1952, the plaintiff served a notice on the defendant to pay the arrears of rent and deliver vacant possession of the Kothi. The defendant in his reply refuted the claim of the plaintiff and asserted that the Kothi did not belong to her nor was he a tenant of the same. In the suit filed by the plaintiff, the defendant contended that Raja Sahib was the first Mutawalli and he had acquired the lease of the land and constructed the Kothi with the wakf fund as Mutawalli of the wakf. It was a wakf property. After the death of the Raja, the respondent became the Mutawalli of the property, including the Kothi in question and he occupied the Kothi as a Mutawalli and not as a tenant. The trial Court accepted the case of the, defendant, rejected that of the plaintiff and dismissed the suit. The Allahabad High Court dismissed her appeal and she preferred appeal before the Supreme Court on grant of special leave. Ultimately the appeal was dismissed with direction that the parties will bear their own costs. In the said case in paras 15 and 16 of the said judgment there is a quotation from Tyabji's Muslim Law, Fourth Edition, herein it is observed that a Mutawalli is like a Manager rather than a trustee. The Mutawalli, so far as the wakf property is concerned, has to see that the beneficiaries got the advantage of usufruct and under the Shia Law the property does not remain with the waqif. It is transferred to God or to the beneficiaries. Thereafter quoting from Tyabji's Book on Muslim Law it is observed as under: -
'The mutawalli has no ownership, right or estate in the wakf property; in that respect he is not a trustee in the technical sense; he holds the property as a manager for fulfilling the purpose, of the waqf.' However, ultimately after disagreeing with the observations made in Mulla's Mahomedan Law, as well as in the case reported in : AIR1933All407 , it is quoted from : AIR1970All509 as under: -
'the legal status and position of a mutawalli under a waqf under the Musalman Law is that of a Manager or Superintendent.'
General powers of the Mutwalli as mentioned in para 529 of Tyabji's book are that Mutawalli may do all acts reasonable and proper for the protection of the waqf property, and for the administration of the waqf. This has been relied on by the Supreme Court in the aforesaid case. Now referring to that paragraph in Tyabji's Book the first case which is referred to is (1878-79) ILR 3 Bom 84 in Phate Saheb Bibi v. Damodar Premji .It is a Division Bench of the Bombay High Court wherein it is held as under: -
'supposing the wakf to have been validly created, the right to bring the suit belonged (according to Mahornedan law) not to the heirs or descendants of the settlor, but to the mutawalli (superintendents) jointly.'
Therefore, in the said case the right of Mutawalli to bring a suit is considered to be the reasonable and proper act on his part for protecting the wakf property and for administering the same.
17. In the case of Hashim Husain v. Ahmad Raza reported in : AIR1974All305 , the Division Bench of the Allahabad High Court after referring to various authorities like Tyabji's Muslim Law on the point in para 24 has observed as under: -
''Although it is true that a mutawalli is not a trustee within the meaning of the Act, or as understood either generally or under the Indian Trusts Act, but the nature of the duties which he is required to perform are more or less the same. A mutawalli stands in fiduciary relationship and it, is against the interest of society in general that such relationship should be allowed to be terminated unilaterally.'
Thus it is clear from the above judgments and particularly (1878-79) ILR 3 Born 84 that Mutawalli can file a suit in respect of the wakf property. In that view of the matter, it is not necessary to examine the other authorities cited at the Bar.
18. It is, therefore, clear that under the Mahomendan Law, which is a personal law, the Mutwalli has right to file a suit in respect of the wakf property. Now Mr. Y. S. Mankad submits that S. 36 of the Wakf Act, 1954 prescribes the duties of Mutawalli and, therefore, it does not fall under S. 36 or other relevant provisions of the Act, Mutawalli cannot file a suit and one cannot rely on the. Mahomadan personal law when there is a statute enacted on the subject. It is true that S. 36 speaks about the duties of Mutawallis. They are as under: -
(a) to carry out the directions of the Board;
(b) to furnish such returns and supply such information or particulars as may from time to time be required by the Board;
(c) to allow inspection of wakf properties, accounts or records or deeds and documents relating thereto;
(d) to discharge all public dues; and
(e) to do any other act which he is lawfully required to do by or under this Act.
At this juncture when the word 'Mutawalli' is used in S. 36 it would be necessary to read the definition of the word 'Mutawalli' as given in the said Act. It is S. 3(f), which runs as under: -
'3(f). 'mutawalli' means any person appointed either verbally or under any deed or instrument by which a wakf has been created or by a competent authority to be the mutawalli of a wakf and includes any naib-mutawalli khadim, mujawar, sajjadanasin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and, save as otherwise provided in this Act, any person or Committee for the time being managing or administering any wakf property as such.'
From reading the said definition it is clear that it not only means any person appointed under instrument of wakf or verbally but it would also include khadim, mujawar, sajjadanasin and except or otherwise provided in the Act any person or committee for the time being managing or administering any wakf property as such. Therefore, on the date on which this Act came into force when any person was de facto managing or administering the property, was also included as Mutawalli. Therefore, the definition presupposes that the first and foremost duty of the Mutawalli would be to manage or administer the property. The Mutawalli has to perform two types of duties: religious duties and secular duties. The religious duties may be in the nature of offering prayers, dhup, etc. while secular duties would include the collection of rent, managing the property, keeping the property in good condition, preparation thereof, administering the property and if somebody encroaches upon the wakf property then to protect those rights. It is pertinent to note that S. 36 does not speak about the management and administration of the property as one of the duties of Mutawalli. We have to take into consideration the very purpose for which the Act is enacted. It is clearly in the preamble that it is an Act to, provide for the better administration and supervision of wakfs. Therefore, the Legislature intended that in addition to their duties under the Personal Law there must be further statutory duties and those duties are prescribed under S.36 of the said Act. Therefore, whatever the rights or duties the Mutawalli has under the personal law cannot be said to have been taken away merely because they are not so expressly provided as duties and powers of Mutawalli under the provisions of the Wakf Act.
19. Even examining the provisions of S. 3o, apart from other duties, it also prescribes to do any other act which is lawfully required to be done by or under this Act. S. 6,of the Act gives the right to the Mutawalli and also to any other person interested therein to institute a suit in a Civil Court of competent jurisdiction for the decision of the question as to whether a particular property is wakf property or not or whether a particular property specified as wakf property in a list of wakfs published under sub-section (2) of S. 5 is wakf property or not. Similarly, S. 37 also prescribes the duties of the Mutawalli for paying from the income of the wakf property any expenses incurred by him. S. 38 also prescribes that the remedy against Mutawalli if he refuses to pay any revenue, cess, rates or taxes due to the Government as it is his duty prescribed under S. 36(d) of the Act, is to create and maintain the reserve fund from the income of the wakf as per the directions of the Board.
20. It may be noted that S.60 prohibits any compromise without the sanction of the Board where the suit or the proceedings in any Court is filed by or against Mutawalli relating to the title of the wakf property or rights of the Mutawalli This section clearly implies that Mutawalli has right to file the suit relating to the title of the wakf property particularly when the compromise of such suit without sanction of the Board is barred. Thus, looking to the scheme of the Act also it is clear that the Mutawalli has right to file a suit for the purpose of discharging the duties as Mutawalli for protecting wakf property and for administering the wakf property.
21. It may be stated that the learned Judge of the Appellate Court below has relied on the provisions of S. 55 of the Act which runs as under: -
'55. (1) A suit to obtain any of the reliefs mentioned in S. 92 of the Civil P. C. 1908, relating to any wakf may, notwithstanding anything to the contrary contained in that section, be instituted by the Board without obtaining the consent referred to therein.
(2) No suit to obtain any of the reliefs referred to in S. 92 of the Civil P. C. 1908, relating to any wakf shall be instituted by any person or authority other than the Board without the consent in writing of the Board and for the institution of any such suit, it shall not be necessary to obtain the consent referred to in that section, notwithstanding anything contained therein:
Provided that nothing in this sub-section shall apply in relation to any such suit against the Board.'
On perusal of the said Section it is clear that if the suit is in respect of the reliefs provided in S. 92 of the Civil P. C. it can be filed by the Board without obtaining the consent referred to therein. But sub-section (2) provides that if any person or authority other than the Board wants to file a suit the consent of the Board would be necessary before the institution of the suit. It would be, therefore, now necessary to refer to the different reliefs provided in S. 92 of the Civil P. C. The said reliefs are as under: --
'(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorising the whole or any part of the trust property to be, let, sold, mortgaged or exchanged;
(g) setting a scheme; or
(h) granting such further or other reliefs as the nature of the case may require.'
22. On perusal of the reliefs from (a) to (h) above, it is clear that this suit which is a suit for declaration that defendant 1 has no right to make use of the suit-Kabrastan and further for permanent injunction does not Come under any of the reliefs mentioned in S. 92 of the Civil P. C. It is, therefore, clear that Mutawalli can file such a suit without obtaining the sanction of the Board. But in that event notice under S. 57 to the Board would be necessary. While here in this case the Board is joined as party. In that view of the matter, I hold that the learned Judge of the Appellate Court below has erred in law in holding that the Mutawalli had no right to file the present suit.
23. In the result the appeal is allowed. Cross-objections are dismissed. The judgment and decree passed by the Appellate Court below are hereby set aside and the decree passed by the trial Court is restored.
24. Respondent 1 to pay the costs of this appeal to the appellant.
25. Appeal allowed.