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The Tamil Nadu Wakf Board, by Its Secretary Having Its Office at No. 4 Vs. Dawood Bi - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai High Court
Decided On
Reported in(1981)1MLJ220
AppellantThe Tamil Nadu Wakf Board, by Its Secretary Having Its Office at No. 4
RespondentDawood Bi
Excerpt:
- .....was wrongfully alienated by the muthavalli.2. the defendant contended that the property is not a wakf property and that the suit is barred by limitation.3. the learned district munsif decreed the suit with costs as prayed for. the learned third additional subordinate judge, tiruchirapalli, however, came to the conclusion that the name of the dargah mentioned in exhibit b-1 in different from the name of the wakf mentioned in the plaint, that no document has been produced by the plaintiff to corroborate the evidence of p. w. 1 that the wakf to which the suit property belongs is known as fathahullah saheb dargah wakf alias zainulabdeen aulia dargah, tennur, tiruchy, that the description of the property in the pro-forma exhibit a-1 is different from the description of the suit property,.....
Judgment:

S. Suryamurthy, J.

1. This is a second appeal against the learned Third Additional Subordinate Judge of Tiruchirapalli, allowing A. S. No. 196 of 1976 and reversing the judgment and decree of the learned Third Additional District Munsif, Tiruchirapalli in O. S. No. 1676 of 1973. The suit was instituted by the appellant (Tamil Nadu Wakf Board, by its Secretary) for a declaration of title and recovery of possession of an extent of 9 X 17 comprised in Door No. 26 situate in ward No. 4 Block No. 2 T. S. No. 44 in Tennur Village, Tiruchirapalli Taluk, on the allegation that the property belongs to the wakf known as Fathahulliah Saheb Dargah Wakf alias Zainullbideen Aulia Dargah, Tennur, Tiruchy, and was wrongfully alienated by the muthavalli.

2. The defendant contended that the property is not a wakf property and that the suit is barred by limitation.

3. The learned District Munsif decreed the suit with costs as prayed for. The learned Third Additional Subordinate Judge, Tiruchirapalli, however, came to the conclusion that the name of the Dargah mentioned in Exhibit B-1 in different from the name of the wakf mentioned in the plaint, that no document has been produced by the plaintiff to corroborate the evidence of P. W. 1 that the wakf to which the suit property belongs is known as Fathahullah Saheb Dargah Wakf alias Zainulabdeen Aulia Dargah, Tennur, Tiruchy, that the description of the property in the pro-forma Exhibit A-1 is different from the description of the suit property, that no doubt the sale certificate issued in favour of the defendant, viz., Exhibit B-1 proves that the property comprised in T. S. No. 44, viz., the suit property, belonged to Hazarath Jainulabdeen Aulia Dargah at Thennur, and that nevertheless that suit is liable to be dismissed because the suit property does not belong to the plaint mentioned wakf, though the plaintiff wakf Board has jurisdiction over the properties of the Dargah, evidently meaning of all Dargahs.

4. This appeal has been admitted on a question of law formulated thus. Whether the dismissal of the suit by the first appellate Court is wrong on its own finding that the suit property is a wakf property?

5. This question of law has to be answered in favour of the appellant. It is seen from Exhibit B-1, the sale certificate issued in favour of the predecessor-in-title of the defendant, that O. S. No. 1004 of 1963 was filed against Hazarath Jainullabdin Aulia Dargah at Thennur by its hereditary trustee, the second defendant in that case, and Farzullakhan Samoji Sahib, son of Muzzaffar Hussain Khanpat Otha Gopuram Pallivasal High Road, Thennur, and a decree was obtained, and that in pursuance of the decree, E. P. No. 1326 of 1964 was filed and after obtaining the permission of the Court, the property was purchased by the decree-holder himself. This property in T. S. No. 44 is the subject matter of the suit. In the pro forma, Exhibit A-1, this very same Farzullah Khan Samoji, son of Mussaffar Hussain Samoji is mentioned as the muthavalli of Sha Farzullah Sha Khaddari Mosque-Wakf. This is the wakf mentioned in the plaint as Fathahullah Saheb Dargah Wakr alias Zainulabdeen Aulia Dargah. It matters not whether the property belongs to Fatahullah Sahed Dargah Wakf or Zainullabdeen Aulia Dargah, because the plaintiff has instituted the suit on behalf of both, though equating the one with the other. Even assuming that they are two different Dargahs, the suit is maintainable, because it is alleged in the plaint that the property belongs to Zainulabdeem Aulia Darga.

6. The learned Counsel for the respondent put forward a very startling contention that Zainulabdeen Aulia Dargah is different from Hazarath Jainulabdin Aulia Dargah referred to in Exhibit B-1. Hazarath is a term of reverence prefixed to the proper name and, therefore there is no doubt about the fact that Hazarath Jainulbdeen Aulia Dargah at Thennur is the same as Zainulabdeen Aulia Dargah at Thennur. The learned Subordinate Judge also has fallen into the same error of thinking that the name of the Dargah mentioned in Exhibit B.-1, viz., Hazarath Jainulabdin Aalia Durgah mentioned in Exhibit B.-1, viz., Hazarath Zainulalbdin Aulia Dargah at Thennur is different from the name of the wakf mentioned in the plaint, viz., Zainulabdeen Aulia Dargah Tennur, Tiruchy.

7. Section 15(2) (h) and (o) of the Wakf Act empowers the Wakf Board to take measures for the recovery of lost properties of any wakf, to institute and defend suits and proceeding in a Court of law relating to wakfs, and generally do all such acts as may be necessary for the due control, maintenance and administration of wakfs. This section applies to all wakfs, and, therefore, the suit is maintainable whether the property belongs to Fathahullah Saheb Dargah Wakf or Zainulabdeen Aulia Dargah.

8. The defendants had contended that the suit is barred by limitation. This contention is preposterous because the defendant's predecessor-in-title had taken possession of the suit property only in pursuance of Exhibit B.-1 dated 17th October, 1976, and this suit has been instituted within twelve years from the date of Exhibit B.-1.

9. The learned Counsel for the respondent contends that by reason of Section 57(3) of the Wakfs Act, the suit is barred. Section 57 read as follows:

(1) In every suit or proceedings relating to a title to wakf property or the right of a mutawalli, the Court shall issue notice to the Board at the cost of the party instituting such suit or proceeding.

(2) Whenever any wakf property is notified for sale in execution of a decree of a civil Court or for the recovery of any revenue, cess, rates, or taxes due to the Government or any local authority, notice shall be given to the Board by the Court, Collector or other person under whose order the sale is notified.

(3) In the absence of a notice under Sub-section (1), any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the Court in this behalf.

The period of one month prescribed in Sub-section (3) of Section 57 of the Act is applicable only to an application under Section 57(3). This summary remedy does not bar the plaintiff from instituting a suit for declaration of title and recovery of possession at any time before the title of the wakf to the property is extinguished by adverse possession and enjoyment by the party in possession. Therefore, there is no substance in the contention of the defendant that the suit is barred by limitation.

10. Hence, this second appeal is allowed, the judgment and decree of the learned Subordinate Judge in A. S. No. 196 of 1976 are set aside, and the judgment and decree of the learned District Munsif in O. S. No. 1676 of 1973 are restored, and the suit is decreed as prayed for with costs throughout


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