Calcutta High Court (Appellete Side)
Jalaluddin Khalifa & Ors vs Amirul Islam Khalifa & Ors on 22 January, 2025
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
C.O.1613 of 2022
Jalaluddin Khalifa & Ors.
VS.
Amirul Islam Khalifa & Ors.
For the petitioners :Mr. Arnab Dutt, Adv.
Mr. M.Hossain, Adv.
Ms. Mohua Biswas, Adv.
Ms. Labani Dey, Adv.
For the Opposite Party no.1/ :Mr. Tanweer J. Mandal, Adv.
Defendant Mr. Raja Ghosh, Adv.
Last Heard On :03.12.2024
Judgement On :22.01.2025
Bibhas Ranjan De, J. :
1. The challenge in this revision application is the judgment dated
15.03.2022 passed by the Ld. Waqf Tribunal, West Bengal in
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connection with suit no. 72 of 2016 by invoking jurisdiction
under Article 227 of the Constitution of India.
Background:-
2. The case of the Petitioners in brief is that their predecessors viz.,
Hazi Ibrahim Khalifa created a Waqf by executing Waqf Deed on
27.11.1933 dedicating properties measuring 25 acres 72
decimals for the maintenance of his family and for religious,
pious and charitable purposes. The Waqf Estate is enrolled with
the Board of Auqaf under E.C. No.1454 in the name of “Hazi
Ibrahim Khalifa Waqf Estate” under classification of Waqf-alal
aulad. It is pleaded that Plaintiffs are beneficiaries of the Waqf
Estate and are entitled to be Mutawalli of the Waqf Estate.
Plaintiffs are enjoying the Waqf properties with their residence
and perform charitable and religious activities as per direction of
the Waqif. The Plot No.46 measuring 1.86 acres under C.S.
Khatian No.931, L.R. Khatian Nos.2781, 3762, 3791 and 3870,
Mouja-Zirakpur, J.L. No. 94, P.S. Basirhat, District – North 24
Parganas is part of the Waqf Estate and same is shown in the
schedule of the suit property. It is further pleaded that in the
month of January, 2016, one Md. Nurul Islam Khalifa (since
deceased) tried to make pucca construction over Schedule-B
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property which is part of Schedule-A property, illegally. Plaintiffs
and other beneficiaries of the Waqf Estate raised objection.
Defendant no. 1 (now deceased) allegedly claimed 1.22 acres of
Schedule-B property out of 1.86 acres as his secular property by
virtue of registered Partition Deed being No.10991 dated
03.12.1956. It is stated that registered Partition Deed dated
03.12.1956 is illegal and after knowing the illegality of partition
deed, Plaintiffs made complaint before Board of Auqaf and Board
of Auqaf sent a letter to Defendant No.1 (since deceased) on
13.07.2016 with a direction to make his comment regarding
registered Partition Deed but no fruitful result sprouted. It is
pleaded that Defendant No.1 (now his legal heirs) have no right,
title and interest in the suit property and cannot claim Schedule-
B property as secular property. The main purpose of executing
Partition Deed was to grab the Waqf property illegally and for
personal gain. It is pleaded that it is a settled law that once a
Waqf always a Waqf and transfer of Waqf property is illegal. It is
pleaded that cause of action arose firstly on 03.12.1956 when
alleged Deed of Partition was executed but it lastly arose in the
month of January, 2016 when Defendants started to make pucca
construction over the Schedule-B property illegally.
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3. Thereafter, the Petitioners filed a suit vide Suit No. 72 of 2016
before the Learned Waqf Tribunal, West Bengal, praying for a
decree of declaration that the Partition Deed being 10991 dated
03.12.1956 was null and void and/or invalid and/or inoperative.
A further prayer was also made for a decree of declaration
disentitling the Respondents’ deceased father to have any right,
title and interest in respect of the suit property in a secular
manner by virtue of the Partition Deed being 10991 dated
03.12.1956 and for a decree of permanent injunction restraining
the Respondents’ deceased father, their men, agent and
associates from interfering into the suit premises in any secular
manner which was rejected by the Ld. Tribunal vide the
judgement dated 15.03.2022. Being aggrieved by and dissatisfied
with the impugned judgement, the revisionists have preferred the
instant application.
At the Bar:-
4. Ld. Counsel, Mr. Arnab Dutt, appearing on behalf of the
petitioners has contended that there is no dispute that the
subject property is Waqf aulad property under the name and
style of Hazi Ibrahim Khalifa Waqf Estate. Mr. Dutt has referred
to the provision of Section 104A of the Waqf Act and submitted
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that transfer of Waqf property by way of sale deed, exchange,
mortgage etc. shall be construed as void ab initio. It has been
further contended that Waqf property cannot be partitioned by
metes and bound segregating the same into different shares
demolishing the unity of Waqf property. With regard to limitation,
Mr. Dutt has highlighted the provision of Section 107 of the Waqf
Act which mandates non application of Limitation Act in a suit
for possession of immovable property comprised of any Waqf or
for possession of interest in such property. Referring to Section
104A & Section 51, Mr. Dutt has argued that no
partition/exchange deed can be executed in respect of any Waqf
property without the prior permission of the Waqf Board. In
support of his contention, Mr. Dutt relied on a case of
Commissioner of Waqfs vs. Golam Ahmed and others
reported in AIR 1991 Calcutta 24 wherein Hon’ble Division
Bench of this Court dealt with an issue of public Waqf which was
partitioned and even a compromise decree was passed. Therefore,
the nomenclature of the above referred case has got no similarity
with the case at hand.
5. In opposition to that, Ld. Counsel, Mr. Tanweer J. Mandal,
appearing on behalf of the defendant/ opposite party no. 1 has
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referred to the deed of Waqf and contended that construction of
residential building by the Mutuwalli or their legal heirs were
allowed for the residential purpose. In support of his contention,
Mr. Mondal referred para 16 of the deed of Waqf. Mr. Mondal has
referred to the alleged deed of partition and submitted that the
same is a mere family arrangement and money was paid out of
good gesture and it was not a document of transfer in any form.
6. Mr. Mondal has relied on the ratio of following cases:-
Ramaswami Naidu and another vs. Gopalakrishna Naidu
and others reported in 1977 SCC OnLine Mad 29.
P.K. Mohan Ram vs. B.N. Ananthachary and others
reported in (2010) 4 Supreme Court Cases 161.
Ahmed G.H. Ariff and others vs. Commissioner of Wealth
Tax, Calcutta reported in (1969) 2 Supreme Court Cases
471
SK. Aftab Hossain vs. Sri Biswanath Chakraborty and
others in C.O. No. 1122 of 2019
7. Through the above referred judgments, Mr. Mondal, has tried
to highlight the fact that the Court should carefully examine
the document as a whole, look into its substance, treatment of
the subject by settlor/executant, intention as appearing from
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the express language or by necessary implication and
prohibition, if any, against revocation thereof and the form or
nomenclature of the document.
Analysis:-
8. Entire dispute arising out of the contentious issues only revolves
around the partition deed executed by the predecessors-in-
interest of the parties to the suit.
9. Before delving into the merit of the case at hand, I think it would
be apt to first reproduce the specific observations made by the
Ld. Tribunal in answer to the prayers of the plaint which are to
the effect that:-
“So far as prayer (a) is concerned, suit properties are
admittedly Waqf properties neither parties are claiming suit
properties as their personal properties Grievances of the
Plaintiffs mainly are in Exhibit-A/Exhibit-5 which was
executed by their own grandfather along with father of
Defendant No.1. By executing Exhibit-5/Exhibit-A neither
Haji Md. Samsuddin Khalifa nor Raisuddin Khalifa ever
intended to transfer the Waqf property. They admitted suit
properties as Waqf properties and their descendants/legal
heirs are also admitting suit properties as Waqf properties. In
the record of Board of Auqaf, the suit properties are also
recorded as Waqf properties. Then where is the question of
re-declaration of the suit properties as Waqf properties.
So far as prayer (b) is concerned, the Partition Deed being
No.10991 dated 03.12.1956 was/is family arrangement to
use and occupy the certain properties by the descendents of
the Waqif for residential purpose. The Waqf in question is the
private (Waqf-alal-aulad) Waqf and there is whisper in the
Deed of Waqf to use and occupy the property (schedule B
property) by the descendents for residence and also to get
benefit of usufruct from the remaining Waqf property. Both
8the Plaintiffs and Defendants are descendents of Waqif.
Perhaps they are fighting for getting more area of the Waqf
properties for their use and occupation as residence. This is
not suit for partition before us, so we cannot quantify the
share of parties in this case it is made clear that no suit for
partition relating to Waqf property is maintainable within
ambit of Waqf Act. But fact remains that Partition Deed dated
03.12.1956 is not a “transfer” under any stretch of legal
sense and hence there is no need to declare the same as null
and void. Moreover, same is time barred.
So far as prayer (c) is concerned, both the Plaintiffs and
Defendants are entitled to get the benefit from the Waqf
Estate as per stipulations made in the Deed of Waqf. None of
the parties are strangers in Waqf Estate. No group can have
better right over the other. Rights of the parties are confined
to the mandates of Deed of Waqf. As a family arrangement,
Haji Md. Samsuddin Khalifa and Raisuddin Khalifa executed
deed dated 03.12.1956. By this document no party can
derive any secular right. The property in question was Waqf,
is Waqf and will remain Waqf and there is no question of
deriving tile, right or interest from Exhibit-A/Exhibit-5.
So far as prayer (d) is concerned, Defendants cannot be
restrained from using the suit property as Waqf property.
Defendants are admitting that, suit properties are waqf
properties and they are not saying that suit properties are
their secular properties and hence there is no question
restraining them from using the properties permanently by
decree of permanent injunction.
So far as prayer (e) and prayer (f) are concerned, we do not
find any reason to grant either cost of litigation or any other
relief in favour of plaintiffs.”
10. Now coming to the case at hand, after scrutiny of the
pleadings as well as the arguments advanced and also the
Waqfnama, it is an admitted position of fact that the subject
property is a Waqf property having the nomenclature of Waqf-
alal-aulad within the meaning of Section 3 (r) (iv) of The Waqf
Act, 1995 (for short Act of 1995). In addition to that, it would
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be safe to conclude that the tenor of the Waqfnama clearly
spells out that it is not a public Waqf but a private Waqf for
the maintenance of his family as well as for religious, pious &
charitable purposes. It is also revealed from the Waqfnama
that the parties/predecessors-in-interest of the parties are
beneficiaries of the Waqf Estate and are entitled to be Joint
Mutawallis of the said estate. The parties to this application
are enjoying the Waqf property by using it as their residence
as well as by performing charitable and religious activities in
consonance with the Waqfnama.
11. It is further admitted that on 03.12.1956 a partition deed
was executed between the grandfather of the respondents and
the grandfather of the petitioners herein for a monetary
consideration to the tune of Rs. 162 which was paid by the
grandfather of the respondents to the grandfather of the
petitioners in respect of some excess land.
12. Mr. Dutt has contended that the said partition deed was
actually a deed of exchange which is barred under Section 51
and 104A of Act of 1995. It is submitted that deed of exchange
cannot be executed without the prior permission of the Board
of Auqaf.
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13. In this regard, it would be pertinent to first discuss about
the essentials of a valid deed of exchange as envisaged in
Section 118 of the Transfer of Property Act, 1882 which runs
as follows:-
“118. „Exchange‟ defined.–
When two persons mutually transfer the ownership of
one thing for the ownership of another, neither thing or
both things being money only, the transaction is called
an “exchange”.
A transfer of property in completion of an exchange can
be made only in manner provided for the transfer of
such property by sale.”
14. The Hon’ble Apex Court in a plethora of decisions has
summerised the requirements for a Valid Exchange which are-
Mutual Transfer of Ownership :Both parties must transfer
ownership of their respective properties to each other.
Written Instrument :The transfer of property in an exchange
must be executed through a registered instrument if the value
of the properties involved is Rs. 100 or more. This aligns with
the provisions of Section 54 of the Transfer of Property Act,
which mandates that such transfers must be made by a
registered instrument.
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Registration :As per Section 49 of the Registration Act, any
document that is required to be registered but is not, will not
confer any title or be admissible as evidence in court.
Therefore, an exchange deed must be registered to be valid
and enforceable.
Consideration: Unlike a sale, an exchange does not involve a
monetary consideration. Instead, the value of the properties
exchanged serves as the basis for the transaction.
Possession :While delivery of possession is not explicitly
stated as a prerequisite for the validity of an exchange, it is
generally implied that possession should be transferred to
effectuate the exchange.
15. Now coming to the case at hand, from nowhere it can be
ascertained that there was mutual transfer of ownership of
any immovable property which is sine qua non for a valid
‘Exchange’. Moreover, a bare perusal of Waqfnama especially
clause 12 would clearly indicate the fact that the Wakif namely
Hazi Ibrahim Khalifa himself by executing the deed of Waqf,
partitioned and settled several portions of the Waqf Estate in
between his sons and their upcoming generations for their
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residential as well religious purposes which have been duly
performed by the parties. In addition to that, clause 16 of the
said Waqfnama would further crystallize the fact that the
Wakif himself permitted his successors or mutawallis to carry
on construction works for their own convenience at their own
costs. So, strictly keeping in mind the contents of the
Waqfnama it can easily be understood that the wakif himself
permitted the petitioners as well as the respondents to do
construction work in the said Waqf Estate for their residential
purpose.
16. Moreover, it is not the case that the respondents ever
challenged the status of the said property to be a secular
property. It is unrebuttable that a property which is made
Waqf once shall always remain the same. A careful scrutiny of
the alleged deed of partition/Apus Bantannama would reflect
that at best the partition deed can be termed as an amicable
family re-arrangement between two brothers who were then
joint mutawallis of the subject property.
17. The discussion in the foregoing paragraphs clearly boils
down to the fact that the plea of the petitioners in connection
with the fact that the alleged deed of transfer would
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tantamount to sale or an exchange is not sustainable.
Therefore, the connected prayer of the petitioners that the
alleged Bantannama was in violation of Section 51 and 104A
of the Waqf Act does not have any legs to stand. From that
point of view, in no stretch of imagination, the said partition
deed can be termed as sale/gift/exchange/transfer of Waqf
property/alienation of Waqf property without prior sanction of
Board and as a sequel the said deed cannot be said to be void
ab initio which will attract the provisions of Section 51 & 104A
of the Act, 1995.
18. Mr. Dutt harped on a string of limitation by referring to
the provision of Section 107 of the Act 1995. It is argued that
provisions of Limitation Act have no application in the suit
involved in this revision application.
19. Section 107 of the Act 1995 deals with non application of
Limitation Act 1963 in a suit for possession of immovable
property comprised in any Waqf or possession of any interest
in such property. Therefore, in a suit for possession within the
meaning of Section 52 of the Act 1995, provisions of Limitation
Act 1963 does not apply. Section 52 of the Act clearly spells
out the power of the Board of Waqf to initiate inquiry in this
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regard and after being satisfied that the transfer of Waqf
property was made without the previous sanction of the Board
in contravention of the provision of Section 51, the Board may
sent requisition to the Collector having jurisdiction. But the
suit involved in this revision application does not deal with
any prayer for recovery of possession.
20. At this juncture, I would like to shift my focus towards
the issue of limitation. It is the case of the petitioners that the
cause of action only arose in the year 2016 when the
defendants/ opposite parties herein started to make pucca
construction over the subject property. But nowhere in the
plaint it is averred on behalf of the petitioners that the
partition deed executed in the year 1956 was not within their
knowledge prior to 2016 and only in the month of January
2016 the petitioners first came to know about the previous
partition deed. If that be the position Article 59 of Part IV of
the Schedule to the Limitation Act, 1963 applies wherein a
suit for cancellation or setting aside an instrument, has to be
filed within 3 years from the date of execution of the said
instrument. In the case at hand, it is admitted that the
partition deed was executed in the year 1956 whereas the suit
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was filed in the year 2016 i.e. well beyond the period of
limitation.
21. In the aforesaid view of the matter, I am unable to
interfere with the judgment impugned in this revision
application.
22. As a sequel, the instant revision application being no.
C.O. 1613 of 2022 stands dismissed.
23. Interim Order, if there be any, stands vacated.
24. Connected applications, if there be, also stand disposed
of accordingly.
25. Parties to act on the server copy of this order duly
downloaded from the official website of this Court.
26. Urgent photostat certified copy of this judgment, if
applied for, be supplied to the parties subject to compliance
with all requisite formalities.
[BIBHAS RANJAN DE, J.]
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