Madras High Court
Unknown vs Tamil Nadu Wakf Board
Author: M.Dhandapani
Bench: M.Dhandapani
C.R.P.(MD)No.268 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on Pronounced on
09.07.2025 04.08.2025
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
C.R.P. (MD) NOS. 247 OF 2008 & 1051 OF 2017
AND
TR. A.S. (MD) NO. 222 OF 2009
C.R.P. (MD) No.247 of 2008
1. Golden Educational Trust
Through its Trustee Sivakami Murugan
W/o Murugan
Residing at Sakthi Bavanam
Door No.B-19, 5th Main Road
Maharaja Nagar, Tirunelveli – 11.
2. M. Siva Sankar
3. K.Vijayalakshmi
4. M.Naga Subbulakshmi
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5. T.Kanthiah Thevar .. Petitioner
(P-2 & 4 are represented by
their power agent, P-1)
- Vs -
1. Tamil Nadu Wakf Board
Chennai, through its Chief Executive Officer
7/4, 9th Cross Street, Indra Nagar
Adayar, Chennai 600 020.
2. M.S.Srinivasa Iyer
3. Appadurai (Died)
4. Kumara Verghees Raj
5. Esakkiammal
6. Ponthangam
7. Velumurugan
8. Sasikala
9. Revathi
10. Vetrivel
11. Ponraj
12. Muthuselvam .. Respondents
(RR-5 to 12 brought on record as
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LRs of deceased R-3 vide order dated
30.06.2025 in CMP (MD) No.10807,
10808, 10810, 10811 to 10813/24)
C.R.P. (MD) No.1051 of 2017
1. Appadurai (Died)
2. J.Bewin Oral
3. Binula Christy .. Petitioners
(P-1 & P-2 rep. Through their Power
Of Attorney G.Justin Thambi)
(P-2 & P-3 impleaded as per order
Dated 30.06.2025 in CMP (MD) Nos.
16172 & 16173/2023 in CRP (MD)
No.247/2008 &CMP (MD) No.16174/2024
In AS (MD) No.222/2009)
- Vs -
1. Tamil Nadu Wakf Board
Chennai, through its Chief Executive Officer
7/4, 9th Cross Street, Indra Nagar
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C.R.P.(MD)No.268 of 2022
Adayar, Chennai 600 020.
2. Golden Educational Trust
Through its Trustee Sivakami Murugan
W/o Murugan
Residing at Sakthi Bavanam
Door No.B-19, 5th Main Road
Maharaja Nagar, Tirunelveli – 11.
3. M. Siva Sankar
4. K.Vijayalakshmi
5. M.Naga Subbulakshmi
6. T.Kanthiah Thevar
7. M.S.Srinivasa Iyyer
8. Kumara Varghees Raj ..
Respondents
TR. A.S. (MD) No.222 of 2009
Golden Educational Trust
Through its Trustee Sivakami Murugan
W/o Murugan
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Residing at Sakthi Bavanam
Door No.B-19, 5th Main Road
Maharaja Nagar, Tirunelveli – 11. .. Appellant
- Vs -
1. Appadurai (Died)
2. Esakkiammal
3. Ponthangam
4. Velumurugan
5. Sasikala
6. Revathi
7. Vetrivel
8. Ponraj
9. Muthuselvam .. Respondents
(RR-2 to 9 brought on record as
LRs of deceased R-3 vide order dated
30.06.2025 in CMP (MD) No.10807,
10808, 10810, 10811 to 10813/24)
C.R.P. (MD) No. 247 of 2008 has been filed under Article 227 of the
Constitution of India praying this Court to set aside the judgment and decree of the
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learned Wakf Tribunal (Principal Sub Judge), Tirunelveli, dated 27.4.2007 made
in O.S. No.128 of 2005.
C.R.P. (MD) No. 1051 of 2017 has been filed under Article 227 of the
Constitution of India praying this Court to set aside the judgment and decree of the
learned Wakf Tribunal (Principal Sub Judge), Tirunelveli, dated 27.4.2007 made
in O.S. No.128 of 2005.
Transfer A.S. No.222/2009 has been filed u/s 96 Order 41 Rule 1 of the
Code of Civil Procedure praying to set aside the judgment and decree of the
learned Principal Subordinate Judge, Tirunelveli, made in O.S. No.159 of 2004
dated 27.4.2007.
For Appellant / : Mr. M.P.Senthil Kumar in
Petitioners
CRP 1051/2017
Mr. M.S.Suresh Kumar in
CRP 247/2008 & AS 222/2009
For Respondents : Mr. M.S.Suresh Kumar for RR-2 to 6
in CRP 1051/2017
Mr. S.Kumar for R-8 in CRP 1051/17
Mr. G.Chandrasekaran for R-1
In CRP 247/2008
Mr. S.Kumar for R-4 in CRP 247/2008
No Appearance for RR-2 & 3 in CRP
247/2008
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COMMON JUDGMENT
The revision petitioner in CRP (MD) No.247/08 and CRP (MD) No.
1051/2017, have assailed the judgment and decree in O.S. No.128/2005 passed by
the Wakf Tribunal/Principal Sub Judge, Tirunelveli, while the appeal in TR A.S.
No.222/2009 has been filed by the revision petitioner in CRP (MD) No.247/2008
against the judgment and decree in O.S. No.159/2024 passed by the Principal Sub
Court, Tirunelveli.
2. Since the facts and the relief sought for in all the revision petitions and
the appeal are interconnected and the outcome of revision petitions determines the
outcome of the appeal, they are taken up together and disposed of by this common
judgment.
3. For the sake of convenience, the revision petitioner in CRP (MD) No.
247/08, who is the appellant in Tr. A.S. No.222/09 will be referred to as ‘the
Trust’ and the revision petitioner in CRP (MD) No.1051/17 will be referred to as
‘third party/revision petitioner’ and the 1st respondent in CRP (MD) No.247/08
will be referred to as ‘Wakf Board’.
4. The properties, which is the subject matter of the present lis is alleged to
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have been dedicated to a wakf, which has hitherto fore landed at the hands of the
Trust and other private individuals upon alienation by the power agent of the
Muthavalli, which is one of the group and it is also claimed to have been sold to
the third party/revision petitioner, which has further been alienated as claimed by
the other group. The entire facts revolve around the properties, which have been,
according to the Wakf Board, dedicated for religious and charitable purposes and
are intricately interconnected.
5. It transpires from the facts culled out by the trial court in CRP No.247/08
that the suit schedule properties originally belonged to one Mohd. Meeran, who is
alleged to have created a wakf in and by which the properties, which have been
specified in Schedule – 1 to the wakf deed were dedicated for the purpose of
religious and charitable purposes as spelt out in Schedule – 2 to the wakf deed.
The said Mohd. Meeran was the first Muthavalli of the wakf and hereditary
succession of Muthavalli was provided for in the wakf deed and right to change
the manner in which the Muthavalli is appointed was vested in the said Mohd.
Meeran alone. The Wakf Deed also provided that the said properties, which have
been dedicated to the wakf shall not be alienated by any means by the Muthavalli.
6. The Wakf Deed was executed as Document No.2279 on 4.9.1919. The
first Muthavalli was Mohd. Meeran and after his life time, his daughter, Fathima
Sugara Beevi took over as Muthavalli and she was administering the properties of
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the wakf. The said Fathima Sugara Beevi breathed her last on 26.10.1929 leaving
behind her four daughters and on the basis of the recitals in the wakf deed dated
4.9.1919, the eldest daughter, Amathul Jaffer Fathima took over as Muthavalli of
P.M.Mohd. Meeran Wakf. The wakf was surveyed by the Wakf Board and
registered as G.S. No.718/9 WB and was published in the Government Gazette.
7. Amathul Jaffer Fathima was the last Muthavalli of the wakf, as due to
her ailing health, she executed a registered power of attorney dated 3.2.1982 in
favour of her son, Nazrudeen. A.J.Fathima, at the fag end of her life, was residing
with her second son Fareed. On the basis of the power of attorney, Nazrudeen
sold the property to six different persons under six different sale deeds and
registered the same in favour of defendants in O.S. No.128/2005 on various dates
between 11.12.1995 and 1.5.1996. A.J.Fathima, the last Muthavalli of Mohd.
Meeran Wakf breathed her last on 15.12.1996. The alienation of the properties
belonging to the wakf by Nazrudeen was brought to the notice of the Wakf Board
by the Sub Registrar, Melapalayam, vide his letter dated 15.12.1996.
8. Since neither the Muthavalli nor any of her descendants had any right to
alienate the properties belonging to Mohd. Meeran Wakf, the Wakf Board, while
took action against Nazrudeen for alienating the property, though as per the Wakf
Deed, Nazrudeen has to succeed as the Muthavalli of Mohd. Meeran Trust, and
removed him from the post of Muthavalli on the basis of the Resolution No.
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61/97. The appeal against the said resolution by Nazrudeen in C.M.A. No.
46/1998 was dismissed. Thereafter, the persons who had purchased the property
under various registered sale deeds from Nazrudeen had, by way of gift deed dated
19.3.2000, gifted the property to the Trust. As the 7th defendant in O.S. No.
128/2005 claimed that the suit schedule property was purchased by him and started
interfering with the peaceful possession of the Trust, the Trust filed O.S. No.
159/2004 praying for a permanent injunction against the 7th defendant. As the 6th
defendant in O.S. No.128/2005 had alienated the property in favour of the 8th
defendant on 14.1.2004, the 8th defendant was brought in as a party defendant in
the aforesaid suit.
9. The suit in O.S. No.128/2005 was resisted by the defendants on the
ground of non-joinder of parties; that the suit is barred by limitation as the suit
ought to have been filed within three years from 13.12.1995, the date of the
registration of the first sale deed; that the Wakf Board has no authority to file the
suit and, therefore, the suit is not maintainable; that the suit schedule properties
were not fully dedicated for religious and charitable purposes and, therefore, the
wakf is not a wakf in its strictest sense; that the wakf was created for the family
and that only wakf which are totally and fully dedicated for religious and
charitable purposes would partake the character of wakf; that the present wakf is
one which was created for the family, but which also included carrying out
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religious and charitable activities; that the suit schedule properties were purchased
by paying fair and reasonable consideration by the purchasers; that the Wakf
Board had granted permission for the sale of the properties and to that end, the
necessary payments have been made by way of demand draft to the Wakf Board.
Therefore, it was claimed that the plaintiff/Wakf Board had no right to file, much
less maintain the suit.
10. The suit in O.S. No.159/2004 has been filed by the Trust averring that
the suit schedule properties were purchased by Mohd. Meeran and his brother on
26.09.1915. Since the brother of Mohd. Meeran died without leaving any issues,
his wife, Jainabu Beevi executed a release deed dated 7.5.1921 in favour of Mohd.
Meeran. Mohd. Meeran created a registered private wakf in respect of the suit
schedule properties based on which A.J.Fathima became the last Muthavalli of the
properties. Since the properties did not yield the necessary income, the said
A.J.Fathima executed a power of attorney in favour of her son Nazrudeen for
selling the properties so as to make out a corpus for the said wakf. Based on the
said power of attorney, Nazrudeen sold the suit schedule properties to the various
respondents in CRP (MD) No.247/08. Some of the purchasers released the
portion of the property purchased by them in favour of the Trust and the Trust is in
peaceful possession and enjoyment of the properties and is paying all the statutory
dues.
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11. While that being so, the defendant in the suit/third party created
documents as if the properties were purchased by him from one S.K.Ahmed Ali
and S.K.Mohammed Mohideen and based on the said documents filed O.S. No.
134/1995 before the II Addl. District Court, Tirunelveli and obtained injunction.
In the said suit, the Trust is not a party. Coming to know of the fraudulent
transaction by S.K.Ahmed Ali and S.K.Mohammed Mohideen, criminal
complaints were also lodged. Based on the said documents, the third
party/defendant in O.S. No.159/2004 is causing hindrance to the Trust in its
peaceful possession of the properties and, therefore, the suit has been laid seeking
permanent injunction.
12. The third party/defendant in O.S. No.159/2004 contested the suit
submitting that all the averments with regard to purchase of the property by Mohd.
Meeran, creation of wakf, selling of the properties allegedly by Nazrudeen are all
false. It is the further averment that the purchase by the defendant is proper and
that O.S. No.134/1995 was filed by the defendant in which an order of injunction
was granted in favour of the defendant. From the date of purchase of the
property, the property has been in possession and enjoyment of the defendant.
13. On the basis of the above pleadings, oral and documentary evidence, the
trial court, in O.S. No.159/04 held that the suit schedule property is a private wakf,
which was created for the purpose of religious and charitable purposes and it is
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non-alienable and, therefore, the sale of the said properties is against the
provisions of the Wakf Act (for short ‘the Act’) and the recitals in the wakf and
held that the properties belong to the wakf as the properties have been dedicated to
the wakf as per Section 3 (r)(iv) of the Act and, accordingly, cancelled the
documents by which the suit schedule properties were sold.
14. Insofar as O.S. No.159/2004 is concerned, the trial court held that no
proper and acceptable documents have been placed before the Court to show that
the properties were either purchased by the plaintiff therein or by the defendant
therein and in the absence of such documentary evidence, the claim of the Trust
for permanent injunction was negated.
15. Aggrieved by the aforesaid judgment and decree, the Trust, which is the
1st defendant and the 7th defendant in O.S. No.128/2005 have filed CRP (MD) No.
247/08 and CRP (MD) No.1051/2017 assailing the said judgment and decree.
However, the rejection of permanent injunction sought for in O.S. No.159/2004 by
the Trust has resulted in the Trust filing the appeal in A.S. No.222/2009, before
the District Court, Tirunelveli, against the third party/revision petitioner in C.R.P.
(MD) No.247/08, which, upon transfer to this Court has been numbered as Tr.
A.S. No.222/2009 and listed before this Court.
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Submissions of the Revision Petitioner in CRP (MD) No.247/2008 :
16. Learned counsel appearing for the revision petitioner submitted that
Ex.A-7 under which the Muthavalli Nazrudeen was removed and steps were taken
to recover the properties u/s (2) and (3) of Section 52 of the Act, the said
document has been signed only by the Chairman and the signature of the members
are not available, which makes the document invalid, as the same is in violation of
Section 27 of the Act. In the absence of a special order passed by the Board in
writing permitting the Chief Executive Officer to file a suit for recovering the
properties, the filing of the suit is not maintainable in view of the bar u/s 27 of the
Act.
17. It is the further submission of the learned counsel that Section 7 (3) of
the Act provides that the Chief Executive Officer shall not be made a party to any
application u/s 7 (1) of the Act. Such being the case, the suit in O.S. No.128/2005
at the behest of the Wakf Board by the Chief Executive officer is not maintainable,
as Section 7 (3) acts as a bar for the Chief Executive Officer from being a party to
the suit or application.
18. It is the further submission of the learned counsel that even for the sake
of argument it is accepted, without admitting that Ex.A-7 resolution has been
passed by the Board directing the District Collector to take action to recover the
suit properties, however, till 10.7.2025, no order have been passed and the
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defendants in the suit have a right of appeal against the said order and, therefore,
this Court may, if it considers necessary, remand the revision and direct the
District Collector to pass orders giving opportunity to the revision petitioner and,
thereafter, against any such order passed, the revision petition, if aggrieved, may
file an appeal to the Wakf Tribunal u/s 52 (4) of the Act.
19. It is the further submission of the learned counsel that the Wakf Board
cannot institute the suit because the wakf is not notified in the Gazette, as no
documentary evidence has been placed to show such notification. It is further
submitted that the Wakf Board has not marked any exhibit in the suit to prove that
the wakf is notified and any copy, which is produced across the Bar before this
court cannot be construed as documentary evidence as this Court, under its
revisional jurisdiction cannot receive such documents as additional evidence, as
the right of the defendants, viz., the revision petitioner herein to cross examine the
witness through whom the document is marked as to the contents of the
publication. It is further submitted that it is mandatory that before a gazette
notification is made, it is mandatory for the Commissioner to survey the properties.
20. It is the further submission of the learned counsel that the Wakf Board
has no locus standi to file a suit without following the procedures contemplated u/s
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21. It is the further submission of the learned counsel that mere production
of the gazette notification before this Court would not cure the defect of
maintainability of the suit before the trial court and, therefore, the suit filed by the
Wakf Board before the trial court is not maintainable. It is the further submission
of the learned counsel that before filing the suit, the Wakf Board ought to have
following the procedure contemplated u/s 4, 5, 6 and 27 of the Act. Neither the
suit properties nor the survey numbers find place in the plaint schedule in the suit
in O.S. No.128/2005. If the said suit properties are not included in the gazette
notification, the Board has to collect information regarding the suit properties
before filing the suit. Any decision of the Board u/s 40 (2) can be challenged or
revoked or modified by the Wakf Tribunal and only thereafter, suit for possession
could be filed by the Wakf Board. However, without following the said
procedure, the suit has been filed, which is grossly erroneous.
22. It is the further submission of the learned counsel that the suit schedule
properties along with all the survey numbers ought to be included in the Gazette
notification and it is incumbent on the Wakf Board to maintain a register with
regard to all the wakf properties along with copies of the wakf deeds as provided
u/s 37. However, in the present case, the Board has not filed any register of the
wakf to show that the suit schedule properties are included in the publication of
list of wakf u/s 5. In the absence of inclusion of the same in the Register and in
the absence of conducting preliminary survey u/s 4 (1)(A) of the Act, the suit in
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O.S. No.128/2005 has to be rejected.
23. It is the further submission of the learned counsel that the wakf deed,
Ex.A-8, is dated 4.9.1919 but on the said date, the said P.N.Mohd. Meeran, who
created the wakf did not have title to the said properties, as the right to the said
properties accrued to Mohd. Meeran only by means of a release deed dated
7.5.1921, the day on which Shynabu Beevi, the widow of deceased A.N.Abdul
Rahim, who is the brother of Mohd. Meeran, released the properties and only on
that date, Mohd. Meeran got title to the properties. Therefore, the properties under
Ex.A-8, dated 4.9.1919 does not belong to Mohd. Meeran on the crucial date and,
therefore, he does not have ownership to create a wakf under the said deed. To
support the aforesaid submission, learned counsel placed reliance on Section 3 (r)
of the Act, which defines the term ‘wakf’. On the crucial date, viz., 4.9.1919, the
said Mohd. Meeran did not get the right as a Wakif and reading the other
documents jointly, the existence of the Wakf Deed itself is highly doubtful.
24. It is the further submission of the learned counsel that the possession of
the properties with the Trust is admitted and Ex.B-8, the patta, which has been
issued in the name of the Trust.
25. It is the further submission of the learned counsel that it is settled
principle that it is the plaintiff, which has to prove its case by letting in
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documentary evidence and in the absence of the same and in the absence of the
last Muthavalli, Nazrudeen having not been impleaded as a party to the suit, the
suit is not maintainable for non-joinder of parties and, therefore, the judgment and
decree passed in the suit requires to be set aside.
26. In support of the aforesaid submissions, learned counsel placed reliance
on the following decisions :-
i) M.A. Aziz – Vs – AP State Wakf Board & Anr.
(AIR 1998 AP 61);
ii) Ali Akhtar Quadri – Vs – The State of Bihar (AIR
2003 Jhar 74);
iii) The President – Vs – Kamaraj College of
Engineering & Technology Managing Board, rep. By its
Secretary (2009 (5) CTC 289);
iv) Hari Singh Nalwa – Vs – Kartar Singh Bhandana
(AIR 2001 P & H 86);
v) Tamil Nadu Wakf Board – Vs – Hathija Ammal
(Decd.) by LRs, etc. 2001 (8) SCC 528);
vi) Nagoor Kaniammal @ Mahboobal Beevi & Ors. –
Vs – Tenkasi Vangaru Muthu Meeran Sahib Thailka
Pallivasal through its Worshippers & Jamathars & Ors.
(2015 (4) CTC 34);
vii) Madanuri Sri Rama Chandra Murthy – Vs – Syed
Jalal (2017 (13) SCC 174);
viii) Mohd. Rafi – Vs – Thiruvengadam (2021 (2) LW
705);
ix) Salem Muslim Burial Ground Protection
Committee – Vs – State of Tamil Nadu & Ors.(2023 SAR
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(Civ) 694);
x) Mahmood Hussain – Vs – State of UP & Ors.
(Writ C. No.56238/2017 – Dated 23.02.2018);
xi) Infrastructure Leasing & Financial Services Ltd.
– Vs – HDFC Bank Ltd. & anr. (AIR 2023 SC 5239);
xii) A. Mukram Sheriff – Vs – The Chief Executive
Officer (W.P. No.3390/2002 – Dated 19.09.2003); and
xiii) Union of India & Ors. – Vs – Vasavi Cooperative
Housing Society Ltd. & Ors. (2014 (2)SCC 269)
Submissions of the appellant in Tr. A.S. (MD) No.222/2009
27. Learned counsel appearing for the appellant submits that the 1st
respondent in the appeal claims to have purchased the property to an extent of 10
acres from S.K.Ahmed Ali and S.A.Mohd. Mohideen on 28.12.1993, in which the
vendors have merely stated that it is their ancestral property and it is the duty of
the 1st respondent to establish the title of his vendors and their predecessor-in-title
and the appellant cannot be mulcted with responsibility to prove otherwise.
28. It is the further submission of the learned counsel that the 1st respondent
has not produced any document to show that he is in absolute possession of the 10
acres of the land alleged to have been purchased from S.K.Ahmed Ali and
S.A.Mohd. Mohideen.
29. It is the further submission of the learned counsel that the trial court did
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not implead the Wakf Board nor had called upon the appellant to implead the
Wakf Board and, therefore, non-impleadment of the Wakf Board cannot be put
against the appellant. Further, the trial court though held that the appellant is in
possession and enjoyment of the suit properties, however, dismissed the suit for
non-joinder of parties, more particularly, when the trial court had held that the 1 st
respondent, Appadurai has not been able to prove his title and also establish his
predecessors-in-title to the property. It is the further submission of the learned
counsel that inspite of the fact that such a finding has been recorded, no appeal has
been filed by the 1st respondent/Appadurai against the same.
30. It is the further submission of the learned counsel that when the Wakf
Board has not produced any document to establish title and more so when the
Wakf Board is not a party to the suit and no issue having been framed with regard
to the properties claimed to have been belonging to the Wakf Board the trial court
ought to have granted bare injunction as prayed for by the appellant. Learned
counsel further submits that possession proves title, which is an essential
ingredient to obtain an order of permanent injunction, which has been the ratio laid
down in a catena of judgments by this Court as well as the Apex Court. However,
without following the well laid down precedents, the trial court has erroneously
dismissed the suit, which finding requires interference at the hands of this Court.
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31. In support of the aforesaid submissions, learned counsel placed reliance
on the following decisions :-
i) Ananthula Sudhakar – Vs – Buchi Reddy (Dead) by
LRs & Ors. (AIR 2008 SC 2033);
ii) V.N.Krishnasamy – Vs – E.S.Vasudevan (S.A. No.
1019/2007 (MHC) :: MANU/TN/1003/2015);
iii) Nachi & Ors. –Vs – Poongodi & Ors. (S.A. No.
1761/2003 (MHC) :: MANU/TN/0293/2018);
iv) S.Arumugam & Ors. – Vs – A.N.Subramaniyan & Ors.
(S.A. No.340/2008 (MHC);
v) Arulmigu Velukkai Sri Azagiya Singaperumal
Devasthanam (S.A. Nos.1671 & 1672/2002 ::
MANU/TN/3195/2020);
vi) Saraswathy & Ors. – Vs –Thiyagarajan & Ors. (S.A.
No.93/2008 (MHC)); and
vii) Anbazhagan & Ors. – Vs – Nethaji (2022 (2) CTC
162)
Submissions on the revision petitioner in C.R.P. (MD) No.1051/2017 &
respondents in Tr. A.S. No.222/2009
32. It is the submission of the learned counsel that the title of the Wakf
Board to the property as also the title of its predecessor Mohd. Meeran, who is
alleged to have executed the wakf deed dated 4.9.1919, which is marked as
Ex.A-8, are disputed by the revision petitioner and, therefore, the burden lies on
the Wakf Board to prove its title by tracing the title of Mohd. Meeran to the
property through proper and acceptable evidence. However, the Wakf Board has
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miserably failed to prove its title, which it is tracing through Mohd. Meeran and
also the title of Mohd. Meeran to the property, which fact has not been properly
appreciated by the trial court, while decreeing the suit in favour of the Wakf
Board.
33. It is the further submission of the learned counsel that the suit is not
maintainable as the Chief Executive Officer is barred u/s 7 (3) of the Act from
instituting a suit u/s 7 (1) of the Act and, therefore, the suit is liable to be
dismissed as not maintainable. However, this crucial provision of law has not
been properly appreciated by the trial court and, therefore, the order passed
requires interference.
34. It is the further submission of the learned counsel that on the date when
the wakf was created, viz., 4.9.1919, Mohd. Meeran did not have title to dedicate
the properties in favour of the wakf. However, the title of the revision petitioners
stands established through their purchase from their vendor, Appadurai, who
purchased the same from his predecessors-in-title, viz., S.K.Mohd. Ali and
S.A.Mohd. Mohideen under Ex.B-19. In the absence of establishment of title of
Mohd. Meeran to the property at the time of creation of the wakf, the revision
petitioners’ having established their title through Ex.B-19, the suit ought to have
been dismissed by the trial court.
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35. It is the further submission of the learned counsel that Ex.A-8 has been
executed by Mohd. Meeran on 4.9.1919, but the gazette notification produced on
behalf of the Wakf Board does not contain the details of the properties, which is
the subject matter of the present suit, which is contrary to the provisions of the Act
and, therefore, the Wakf Board cannot maintain its claim to the properties as wakf
properties based on the gazette notification. However, all these material facts have
not been properly taken into consideration by the trial court and, therefore, the
judgment and decree deserves to be set aside.
Submissions on behalf of the Wakf Board in the revision petitions
36. Learned counsel appearing for the Wakf Board submitted that the main
contention of the Trust with regard to the resolution not having been signed by all
the members is wholly misconceived, as what is filed under Ex.A-7 is a true copy
of the resolution passed by the Board, which has been approved by the Chief
Executive Officer and it is not the original copy of the resolution. The Chief
Executive Officer has merely communicated the resolution passed by the Board
and, therefore, the validity of the resolution put in issue by the Trust is erroneous.
It is only the Wakf Board, which has passed the resolution, as could be seen from
the resolution, which has been marked as Ex.A-7. Therefore, Section 27 of the
Act, which is alleged to have been violated is wholly erroneous.
37. It is the further submission of the learned counsel that the Wakf Board
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has not violated Section 27 of the Act, as it had not delegated any powers to the
Chief Executive Officer insofar as doing any work, which is within the purview of
the Wakf Board, including the powers, which are specifically excluded u/s 27 of
the Act. Ex.A-7 is only a copy of the resolution passed by the Board, which has
been attested by the Chief Executive Officer and it is not a resolution which has
been passed by the Chief Executive Officer.
38. It is the further submission of the learned counsel that the Wakf Board
has been represented by the Chief Executive Officer in O.S. No.128/05, which has
been filed to retrieve the property of the wakf, which has been wrongfully
alienated by the power of attorney of the last Muthavalli. Placing reliance on
Section 27 of the Act, it is submitted by the learned counsel that the delegation of
power to the Chief Executive Officer to file the suit flows from Section 27, where
the Board could delegate the power to the Chief Executive Officer to discharge the
duties of the Board. Only on the basis of the said delegation, the suit has come to
be filed. Further, it is the submission of the learned counsel that sub-section (3) to
Section 7 of the Act only bars making the Chief Executive Officer as a party to
any application made filed by any aggrieved person before the Tribunal relating to
any property alleged to be belonging to a Wakf. It does not bar the Chief
Executive Officer from filing any suit before the Tribunal for recovering any
property, which is claimed to be the property of the Wakf. Therefore, the
contention that there is a bar u/s 7 (3) of the Act for the Chief Executive Officer to
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file the suit is grossly misconceived.
39. It is the further submission of the learned counsel that no property
belonging to a wakf could be alienated without the prior sanction of the Board and
in case such alienation is made procedure for recovery of the said property so
transferred in contravention of the aforesaid provision is provided for u/s 52. It is
further submitted that if the Board is satisfied upon enquiry that such wakf
properties have been alienated, sub-section (1) of Section 52 clothes the Board
with power to make a requisition to the Collector to obtain and deliver possession
of the property. It is the further submission of the learned counsel that though an
appeal is provided before the Tribunal u/s 52 (4) against an order passed by the
Collector u/s 52 (2), however, such a contingency does not arise as inspite of the
request made by the Board to the Collector, which even according to the Trust is
pending and, therefore, this Court could at best remand the matter to the Collector
to pass such an order so that it could be appealed before the Tribunal, the same
leads only to the present scenario, as instead of the Wakf Board, which has filed
the suit, the appeal would be filed before the Tribunal by the Trust, which would
only be the very same exercise and, therefore, remanding of the matter does not
arise, as at best, it would not only lead to multiplicity of proceedings, thereby
dragging the matter and defeating the intention with which the wakf was created.
40. Learned counsel appearing for the Wakf Board further submitted that
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the no proforma report was filed by the Wakf Board as provided for u/s 4 of the
Act by conducting a survey by the Survey Commissioner appointed by the
Government to survey the properties of the Wakf. It is the submission of the
learned counsel that what is filed under Ex.A-11 is the proforma report of the
Wakf Board and is not the report, which has been submitted by the Government to
the Wakf Board upon completion of the survey as mandated u/s 4 of the Act. It is
the further submission of the learned counsel that Ex.A-11 proforma report has
come into existence only after publication in the Government gazette and in this
regard, learned counsel submits that Section 5 (2) would clearly reveal that
notification would be only after examination is made of the report by the Wakf
Board. Therefore, the claim of the Trust that no survey has been made and no
report has been filed has no legs to stand and deserves to be rejected.
41. It is the further submission of the learned counsel that the contention of
the Trust that the mere production of the Government gazette cannot be the basis
for the Wakf Board to maintain the suit and further it is submitted that claim of the
Trust that the gazette notification is bereft of details with regard to survey numbers
as also the plaint in the suit, would not negate the validity of the suit, as the details
have been provided in the proforma report and even if the survey has not been
properly done, as alleged, taken for the purpose of argument, without being
admitted, the Board has got powers u/s 40 of the Act to collect information
regarding a property by making the necessary enquiry and the decision of the
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Board can be questioned before the Tribunal. However, the Trust has not taken
any steps with regard to challenging the action of the Board before the Tribunal, if
at all the Trust was aggrieved. When the Trust has not taken any steps to
challenge the decision of the Wakf Board u/s 40 (2), the Trust cannot claim that
unless the matter is challenged before the Tribunal no suit for possession could be
filed by the Wakf Board. The silence of the Trust cannot act in detriment to the
Wakf Board to question the title and possession of the Trust before the civil court,
when the interest of the Wakif is sought to be defeated by clandestine means.
42. It is the further submission of the learned counsel that the contention
with regard to registration of a wakf, which was created prior to the coming into
force of the Wakf Act, it is submitted that mere non-registration of the wakf with
the Wakf Board cannot be presumed to nullify the validity of the wakf and the
intention of the Wakif with regard to dedication of the property. It is the
submission of the learned counsel that what is provided for under Section 36 (8) is
only to register the Wakf and non-registration of the wakf u/s 36 (8) would not
invalidate the wakf as such registration is only for the purpose of Section 37 of the
Act, which prescribes the succession to the office of muthavalli of the wakf and
also the properties, which are dedicated to the wakf.
43. It is the further submission of the learned counsel that Mohd. Meeran,
created the wakf on 4.9.1919 on which date, the properties, which have been
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dedicated were in the joint enjoyment of Mohd. Meeran and his brother and
subsequent to the passing away of his brother, his wife, Shynabu Beevi, widow of
P.N.Abdul Rahim had given the release deed dated 7.5.1921 in favour of Mohd.
Meeran. The said Shynabu Beevai had not questioned the creation of wakf by
Mohd. Meeran at any point of time nor his deceased brother, P.N.Abdul Rahim.
Therefore, the dedication made on 4.9.1919 by creation of the wakf merged into
one with the release deed executed by Shynabu Beevi and, therefore, on and from
7.5.1921, the wakf was handled by Mohd. Meeran till his death and, thereafter it
was managed by his wife, Fathima Sugara Beevi. Therefore, the validity of the
wakf was not questioned anterior in point of time by any member of the family and
it had continued to be managed by the family as “waqf-alal-aulad” in which the
properties were dedicated for religious and charitable purposes. The Trust, which
is a subsequent purchaser from the power of attorney of the last Muthavalli,
A.J.Fathima, cannot come and claim that the wakf was not properly created.
44. It is the further submission of the learned counsel that merely because
the Trust claims to be in possession of the property and that patta under Ex.B-8
stands in the name of the Trust andEx.B-10, land due certificate has been issued in
favour of the Trust for the purpose of electricity connection cannot confer title to
the properties on the Trust.
45. It is the further submission of the learned counsel that merely because
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all the properties under Ex.A-8 have not been spelt out in the gazette notification
cannot invalidate the wakf nor could that be taken to mean that the properties,
which have been spelt out in the wakf deed are not wakf properties is grossly
erroneous. On the date when the wakf deed was created, there is a clear mention
of the properties, which have been dedicated to the wakf for the purpose of
religious and charitable purposes. At a later point of time, the gazette notification
has been published and mere non-inclusion of the details of all the properties of
the wakf would not render that the properties are not that of the wakf. Further,
even a cursory perusal of the gazette notification would reveal that all the
notification only details the name of the wakf and the gross income, the amount of
land revenue, insofar as all the wakfs are concerned and it does not spell out the
details of the properties of each and every wakf. Such being the case, if the
contention of the Trust is to be accepted, then all the wakfs would have to be
invalidated as the properties have not been spelt out in the gazette notification and,
therefore, it is submitted that the said contention deserves to be rejected.
46. Insofar as the claim of the third party/Appadurai, who is alleged to have
purchased some of the properties of Mohd. Meeran is concerned, it is submitted
that the judgment and decree without the wakf being shown as a party and
obtained only against the Trust would not bind the Wakf Board. It is the further
submission of the learned counsel that the title of the predecessors of Appadurai
has not been established and the burden for establishing the same lies on the
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revision petitioner. However, without establishing the same, the said Appadurai
has sought for an injunction against the Trust and vice versa, which has been
rightly negatived as against both the revision petitioners and the Wakf Board being
not a party in the suit filed by Appadurai, the judgment and decree of injunction
granted against the Trust would not bind the Wakf Board.
47. This Court gave its careful consideration to the submissions advanced
by the learned counsel appearing on either side and perused the materials available
on record, as also the decisions relied on by the parties.
48. The revision petitioners have, in unison, claimed that the suit is not
maintainable for non-joinder of parties, as the Muthavalli, A.J.Fathima and the
power of attorney, Nazrudeen have not been added as parties. Though such a
contention is advanced, it is to be pointed out that the claim of the Wakf Board is
only for possession of the properties, which, as claimed by the Wakf Board, is with
the Trust. It is the specific case of the Trust that the properties have been
purchased from the power of attorney, Nazrudeen, but no where the Trust claims
that the title to the property is with A.J.Fatima. the wakf deed is not disputed, but
only the recitals in the wakf deed, which, as claimed by the Trust is a family wakf,
created for the benefit of the family and that the religious and charitable
commitments do not outweigh the family commitments. Therefore, what is
relevant for this Court is to decide the genuineness of the wakf deed and the
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purpose for which it has been created for which it is only the deed, which is
necessary and neither the Muthavalli, A.J.Fathima nor the power of attorney,
Nazrudeen are necessary parties, as the presence of the said parties would in no
way bolster the case of the Trust, which is predicated more on the wakf deed.
Therefore, the non-joinder of A.J.Fathima, the last Muthavalli of the wakf before
sale of the properties nor the power of attorney, Nazrudeen are not fatal to the suit
and the suit cannot be said to be not maintainable.
49. The Trust has also attacked the maintainability of the suit on the ground
of limitation claiming that the suit has not been laid within three years from the
date of entering into the sale. The sale had taken place in the year 1995, but the
suit has been laid only in the year 2005. The suit has been filed for recovery of
possession of the suit properties. In this regard, it is relevant to peruse Section 107
of the Act, which provides that the provisions of the Limitation Act would not
apply with regard to possession of immovable property comprised in any wakf or
for possession of any interest in such property. In the present case, possession of
the wakf properties, which are at the hands of the Trust are sought for by the Wakf
Board and such being the case, Section 107 of the Act would stand squarely
attracted and the provisions of the Limitation Act and more particularly the period
of limitation would not be applicable with regard to recovery of possession of
properties. Therefore, the contention with regard to limitation deserves to be
rejected.
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50. The crucial document, viz., the Wakf Deed, dated 4.9.1919 in and by
which the alleged dedication is made, has been executed by Mohd. Meeran,
creating the P.N.Mohd. Meeran Wakf. The said Mohd. Meeran acted as the first
Muthavalli and succession was provided within the family.
51. The nature of wakf is defined sub-section (r) to Section 3, which is as
under :-
“r) “wakf” means the permanent dedication by a person, 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;
(ii) a Shamlat Patti, Shamlat Deh, Jumla
Malkkan or by any other name entered in a
revenue record;
(iii) “grants” including mashrut- ul- khidmat
for any purpose recognised by the Muslim law
as pious, religious or charitable; and]
(iv) 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, provided when the line of succession
falls, the income of the waqf shall be spent for
education, development, welfare and such other
purposes as recognized by Muslim law,
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52. The recitals in the wakf deed clearly show that the wakf falls u/s 3 (r)
(iv) and is a private wakf. A perusal of Section 3 (r) (iv) reveals that beyond the
extent to which the wakf is created and the properties thereon dedicated for pious,
religious or charitable activities as recognized by the Muslim law.
53. In the light of the aforesaid legal position with regard to the manner in
which the administration of a private wakf has to be done, in the present case the
recitals in the wakf deed would have a bearing and, therefore, the recitals need to
be adverted to.
54. The Wakf Deed is marked as Ex.A-8, which is document No.2279 of
1919, which has been executed on 4.9.1919 by P.N.Mohd. Meeran. The wakf
deed, in clear terms states that the properties found in Schedule – I are dedicated
for the purpose as specified in Schedule – II. The deed further proceeds that the
income from the properties dedicated to the wakf are to be utilised for religious
and charitable purposes as spelt out in the deed and the balance amount, which
remains from out of the income are to be used for the purpose of family expenses.
55. The deed further proceeds that the male heirs in succession shall be the
Muthavalli, who shall do the religious and charitable activities from out of the
income of the wakf and where male heirs are not available, the eldest female heirs
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will be the Muthavalli. The deed further proceeds that all the expenses related to
education of children, marriage of the female children and other necessary family
expenses should be expended from out of the income from the properties, but from
the balance amount that is available after spending the income for the purposes of
religious and charitable activities spelt out in Schedule – II. It has been further
recorded in the deed that it is only the Wakif Mohd. Meeran, who could make
changes to the said wakf deed and not other Muthavallis, who will take charge
posterior in point of time. One other crucial recording in the wakf deed is that the
Wakif has made a categorical assertion that the wakf properties shall not be sold,
leased, pledged, etc.
56. From the above, it is clear that the income from the properties shall be
used for religious and charitable purposes and whatever rest and residue is left
over, the same shall be utilised for the familial expenses, including education and
marriage expenses of the children in the family. Further the said wakf properties
shall not be sold, leased, pledged, etc. Applying the conditions as laid down in the
wakf deed to Section 3 (r) (iv) of the Act, it clearly transpires that the dedication of
the property under the wakf deed relate to complete dedication so as to realise the
religious and charitable activities and upon fulfilment, if any amount is left out, the
same shall be used for the benefit of the family for education and marriage
expenses. From the above, it is clear that though the wakf is a private wakf,
however, it is not for the benefit of the family, but it is purely dedicated for
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religious and charitable purposes with a caveat that any rest and residue that is left
of the income generated from out of the properties, the same could be used
towards the family expenses, more particularly towards the educational and
marriage expenses. In the light of the above, it could safely be concluded that the
wakf is not intended for family purposes, but it is for the purpose of doing
religious and charitable activities and family utilisation is only to the extent of
what is left balance in the wakf. In this background, necessarily, the Wakf Board
would have a say in the issue so far as the properties that are left under the wakf
deed.
57. Therefore, even if the wakf created by Mohd. Meeran is a private wakf
and is covered u/s 3 (r) (iv) of the Act and is a waqf-alal-aulad, the properties
dedicated to the wakf are purely for fulfilling in entirety the wishes of the Wakif
and utilisation of income from the said wakf for family purposes would only come
into play after fulfilling all the religious and charitable activities which have been
envisaged under the said wakf deed.
58. The ancillary contention advanced on behalf of the Trust is that the said
Mohd. Meeran, on the date of execution of the Wakf Deed, viz., 4.9.1919, did not
have title to the property and, therefore, the Wakf Deed would not be valid in the
eye of law.
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59. The properties were joint properties between Mohd. Meeran and his
brother Abdul Rahim, which was purchased in the year 1915 from one
Adhinarayana Iyer. The said fact is not disputed. On and from the date when the
property was purchased on 26.9.1915, Mohd. Meeran and his brother Abdul
Rahim were in joint possession and enjoyment of the property. Subsequently,
Abdul Rahim left his mortal coil and, thereafter, on 7.5.2021, his widow, Shynabu
Beevi had executed a release deed in favour of Mohd. Meeran on certain terms.
However, prior to the release deed executed by Shynabu Beevi, the Wakf Deed
had come into existence on 4.9.1919. However, there is no material available on
record, except for an averment in the release deed that about three years prior to
the execution of the release deed, the husband of Shynabu Beevi, who is the
brother of Mohd. Meeran passed away.
60. It is borne out by record as also from the release deed that the properties
were purchased in the joint names of Mohd. Meeran and Abdul Rahim and upon
the death of Abdul Rahim, the release deed had come to be executed. From the
above, it reveals that the family was jointly managing all the properties in which
on 4.9.1919, the said Mohd. Meeran had created the aforesaid wakf. There could
be no quarrel about the fact that on 4.9.1919, Mohd. Meeran had title to the
property, though it may have been a joint title with his brother Abdul Rahim.
However, it cannot be claimed that the said Mohd. Meeran had no title to the said
properties on the date of execution of the wakf deed.
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61. The joint family properties were administered by both Mohd. Meeran
and his brother Abdul Rahim, since deceased, prior to the execution of the wakf
deed. The said Mohd. Meeran, on the date when the wakf deed was executed was
having right and title over the properties, which cannot be disputed. For the sake
of argument, at best it could be claimed that the said Mohd. Meeran did not have
complete right and title to the properties, but upon the execution of the release
deed on 7.5.1921, Mohd. Meeran got complete right and title over the properties
and the wakf, which was created by Mohd. Meeran through the wakf deed dated
4.9.1919 stood fully crystallised, as on 7.5.1921, the said Mohd. Meeran had
complete right and title to the property. Therefore, the question of validity of the
wakf in its entirety, though not crystallised on 4.9.1919, cannot be said to be
without any authority as on the said date, Mohd. Meeran had equal right and title
over the properties along with his brother, which stood fully crystallised on
7.5.1921 upon the execution of the release deed and the object for which the wakf
was created also stood realised. Therefore, the wafk deed cannot be said to be
invalid or bad, merely because on the date of its execution, complete right and title
was not with the said Mohd. Meeran as on 7.5.1921, the said Mohd. Meeran
obtained full right and title and acted as the first Muthavalli.
62. Further, it is to be pointed out that on the date when the wakf deed was
created on 4.9.1919, though it is not clear as to whether the brother of Mohd.
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Meeran was surviving, no objection has been raised for the creation of the wakf
either by his brother or his wife, Shynabu Beevi. In the absence of any objection
for the creation of the wakf, the Trust, which was nowhere in the picture at the
relevant point of creation of the wakf can raise any objection and attack the
creation of the wakf.
63. One other aspect which is relevant to point out here is that the vendor of
the Trust is the power of attorney of the Muthavalli of the wakf. The property has
been sold as the property of the wakf, as the Muthavalli had executed the power of
attorney as according to the averments, the daughter of Mohd. Meeran, Zohra
Beevi, became the Muthavalli after the death of Mohd. Meeran and, thereafter, the
eldest daughter of Zohra Beevi, viz., A.J.Fathima became the Muthavalli, who had
executed the power of attorney. Had the wakf not been recognized, then no claim
as an individual could be made by A.J.Fathima over the properties, as then it
would become the ancestral properties of the family to which all the legal heirs of
Zohra Beevi would be entitled and, therefore, the power of attorney, Nazrudeen
would have no right to sell the properties and the power of attorney would itself be
invalid. Therefore, if the wakf deed is not valid, the sale of the properties by the
vendor to the Trust would be illegal as the property vests in all the legal heirs of
A.J.Fathima, who have to sell the property collectively and if the sale is claimed to
be valid, then the creation of wakf cannot be questioned by the Trust. The Trust is
stopped from blowing hot and cold over the very same issue. In the light of the
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above position, it is clear that the creation of wakf is valid and the Wakif, viz.,
Mohd. Meeran, had valid right and title over the property, which is the subject
matter of wakf deed dated 4.9.1919.
64. The next in the sequence of contention relates to the authority of the
Chief Executive Officer to file a suit, as Section 7 (3) of the Act, according to the
revision petitioners, viz., the Trust and the third party, precludes the Chief
Executive Officer from filing a suit.
65. To address this issue, it is necessary to advert to Section 7, more
particularly, sub-section (3) thereof, of the Act and for better appreciation, the
same is quoted hereunder :-
“7. Power of Tribunal to determine disputes regarding 1
[auqaf].—
(1) If, after the commencement of this Act, [any question or
dispute] arises, whether a particular property specified as
[waqf] property in a list of [auqaf] is [waqf] property or not,
or whether a [waqf] specified in such list is a Shia [waqf] or a
Sunni [waqf], the Board or the mutawalli of the [waqf], [or
any person aggrieved by the publication of the list of auqaf
under section 5] therein, may apply to the Tribunal having
jurisdiction in relation to such property, for the decision of the
question and the decision of the Tribunal thereon shall be
final:
Provided that— (a) in the case of the list of [auqaf] relating to
any part of the State and published after the commencement of39/60
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C.R.P.(MD)No.268 of 2022this Act no such application shall be entertained after the
expiry of one year from the date of publication of the list of
[auqaf]; and
(b) in the case of the list of [auqaf] relating to any part of the
State and published at any time within a period of one year
immediately preceding the commencement of this Act, such an
application may be entertained by Tribunal within the period
of one year from such commencement: Provided further that
where any such question has been heard and finally decided
by a civil court in a suit instituted before such commencement,
the Tribunal shall not re-open such question.
(2) Except where the Tribunal has no jurisdiction by reason of
the provisions of sub-section (5), no proceeding under this
section in respect of any [waqf] shall be stayed by any court,
tribunal or other authority by reason only of the pendency of
any suit, application or appeal or other proceeding arising out
of any such suit, application, appeal or other proceeding.
(3) The Chief Executive Officer shall not be made a party to
any application under sub-section (1).
(4) The list of 1 [auqaf] and where any such list is modified in
pursuance of a decision of the Tribunal under sub-section (1),
the list as so modified, shall be final.
(5) The Tribunal shall not have jurisdiction to determine any
matter which is the subject-matter of any suit or proceeding
instituted or commenced in a civil court under sub-section (1)
of section 6, before the commencement of the Act or which is
the subject-matter of any appeal from the decree passed before
such commencement in any such suit or proceeding or of any
application for revision or review arising out of such suit,
proceeding or appeal, as the case may be.
[(6) The Tribunal shall have the powers of assessment of
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damages by unauthorised occupation of waqf property and to
penalise such unauthorised occupants for their illegal
occupation of the waqf property and to recover the damages
as arrears of land revenue through the Collector: Provided
that whosoever, being a public servant, fails in his lawful duty
to prevent or remove an encroachment, shall on conviction be
punishable with fine which may extend to fifteen thousand
rupees for each such offence.]”
66. No doubt, sub-section (3) of Section 7 of the Act bars the Chief
Executive Officer from being made a party to any application u/s (1) of Section 7,
however, sub-section (1) holds the caveat for the same, wherein sub-section (1)
provides that insofar as the dispute pertains to whether a particular property is a
wakf property or not. However, in the present case, the wakf does not question the
title to the property, but based on the title to the property being vested in the
P.N.Mohd. Meeran Wakf, the Wakf Board had merely sought possession of the
property from the Trust by filing the suit. This clearly reveals that the wakf is
clear about its title to the property and if at all any dispute is to be raised, it ought
to be by the Trust and the third party, which neither of them have done. In the
absence of any dispute over the title to the property, mere prayer for possession of
the property would not bar the Chief Executive Officer from being made a party to
a suit, as sub-section (3) of Section 7 in unambiguous terms has clearly spelt out
that such a bar would operate only insofar as any application is made with regard
to disputes as enumerated under sub-section (1) of Section. Therefore, the said
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contention with regard to there being a bar on the Chief Executive Officer to be a
party to any application is grossly misconceived.
67. The next of the contention of the Trust relates to the resolution being
signed only by the Chairman and not all the members, which is against Section 27
of the Act and, therefore, the suit laid is not maintainable. Section 27 of the Act,
for better understanding, is quoted hereunder :-
“27. Delegation of powers by the Board.—The Board may, by
a general or special order in writing, delegate to the
Chairperson, any other member, the Chief Executive Officer or
any other officer or servant of the Board or any area
committee, subject to such conditions and limitations as may
be specified in the said order, such of its powers and duties
under this Act, as it may deem necessary, except the powers
and functions of the Board mentioned under clauses (c), (d),
(g) and (j) of sub-section (2) of section 32 and section 110.]”
68. Ex.A-7 is a copy of the resolution passed by the Board in and by which
the Board has invoked Section 52 of the Act and had called upon the Secretary to
take necessary action to communicate the Board’s order to the Collector,
Tirunelveli District to take delivery of possession of the property in addition to
other directions. The copy of the resolution, is attested by the Chief Executive
Officer to authenticate the document. Nowhere the said document reveals that it
has been signed only by the Chairman. There is no sigh, but the order is shown to
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be a ‘true copy’ of the resolution passed by the Board. It is not the original
resolution, but is a copy of the resolution, which has been given under the
attestation of the Chief Executive Officer.
69. Section 27 of the Act pertains to delegation of powers by the Board
upon the Chairperson or any other members, the Chief Executive Officer or any
other officer or servant of the Board or any area committee for performing certain
acts, except the powers and functions of the Board mentioned under clauses (c),
(d), (g) and (h) of sub-section (2) of Section 32 and Section 110. A careful perusal
of Section 32, more particularly clauses (c), (d), (g) and (h) as also Section 110
does not reveal any abdication of powers by the Board, which has been bestowed
on the Chairperson or any other person approved by it to do certain acts, which are
specifically excluded u/s 27. Such being the case, the Board having merely
exercised its power to recover possession of the property, which has been illegally
transferred through the alleged purchase to the Trust by invoking Section 52 of the
Act and calling upon the District Collector to recover the same, the said act of the
Wakf Board cannot be said to be bad and the resolution being passed by the Board,
a copy of which is marked as documentary evidence, is a valid resolution passed
by the Wakf Board and the direction to the District Collector to recover and hand
over possession of the property to the Board cannot be said to be erroneous.
70. Further Section 52 of the Act relates to recovery of wakf property,
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which has been transferred in contravention of Section 51. There is no quarrel that
as against the action of the District Collector, provision of appeal is provided to
the aggrieved party to move the Tribunal. In the present case, the Wakf Board
had, through its resolution dated 3.2.1998, directed the Secretary to invoke Section
52 of the Act and request the District Collector to recover and hand over
possession of the property to the Wakf Board, which has been illegally transferred
to u/s 51 of the Act. The said resolution has been passed on 3.2.1998 and the suit
has been laid in the year 2005. A period of seven years had passed by since the
resolution had been passed and even the submission of the Trust reveals that no
action has been taken by the District Collector on the resolution of the Board to
recover and hand over possession of the properties to the Wakf Board.
71. Sub-section (2) of the Act mandates the District Collector to issue
notice calling upon the person to hand over possession of the property. However,
there is no material to show that such a notice was ever issued or any action had
been taken to recover the property. The inaction of the District Collector to
recover the possession of the property from the Trust and hand over the same to
the Wakf Board had resulted in the filing of the suit. The matter had been pending
with the District Collector for more than seven years with no action having been
taken to recover the properties which had prompted the Wakf Board to file the
suit. Though appeal to the Tribunal is available against the order of the District
Collector, but the fact remains that the inaction on the part of the District Collector
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cannot act in detriment to the Wakf Board to seek for possession of the property
through the Civil Court. It is the duty of the District administration to act on the
resolution of the Wakf Board and inaction on the part of the District administration
has resulted in the filing of the suit, which is fair and reasonable and does not
suffer any illegality.
72. The last of the contention advanced on behalf of the Trust is that the
provisions of Sections 5 and 37 relating to publication of list of auqafs and
maintenance of register by the auqafs relating to the properties that have been
dedicated to the Wakf, it is necessary to skim through the above provisions to
appreciate the above contention and, therefore, ready reference, the said provisions
are quoted hereunder :-
“5. Publication of list of [auqaf].—
(1) On receipt of a report under sub-section (3) of section 4,
the State Government shall forward a copy of the same to the
Board.
(2) The Board shall examine the report forwarded to it under
sub-section (1) and 5[fordward it back to the Government
within a period of six months for publication in the Official
Gazette] a list of Sunni [auqaf] or Shia [auqaf] in the State,
whether in existence at the commencement of this Act or
coming into existence thereafter, to which the report relates,
and containing such other particulars as may be prescribed.
[(3) The revenue authorities shall—
(i) include the list of auqaf referred to in sub-section (2), while
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C.R.P.(MD)No.268 of 2022updating the land records; and (ii) take into consideration the
list of auqaf referred to in sub-section (2), while deciding
mutation in the land records.
(4) The State Government shall maintain a record of the lists
published under sub-section (2) from time to time.
37. Register of [auqaf].—
(1) The Board shall maintain a register of 2[auqaf] which
shall contain in respect of each [waqf] copies of the 1[waqf]
deeds, when available and the following particulars, namely:
—
(a) the class of the 1[waqf];
(b) the name of the mutawallis;
(c) the rule of succession to the office of mutawalli under the
1[waqf] deed or by custom or by usage;
(d) particulars of all 1[waqf] properties and all title deeds and
documents relating thereto;
(e) particulars of the scheme of administration and the scheme
of expenditure at the time of
registration;
(f) such other particulars as may be provided by regulations.
(2) The Board shall forward the details of the properties
entered in the register of auqaf to the concerned land record
office having jurisdiction of the waqf property.
(3) On receipt of the details as mentioned in sub-section (2),
the land record office shall, according to established
procedure, either make necessary entries in the land record or
communicate, within a period of six months from the date of
registration of waqf property under section 36, its objections
to the Board.
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73. Section 5 mandates that upon fulfilment of survey as prescribed u/s 4,
on receipt of the report u/s (3) of Section 4, upon receipt of a copy of the report
forwarded by the State Government, the Wakf Board has to act as per the
provisions of sub-section (2) to (4) of the Act.
74. Section 37 mandates the maintenance of a register in relation to
properties that are dedicated to the wakf and recording the particulars of such
properties and all the title deeds and documents relating thereto.
75. There is no quarrel that P.N.Mohd. Meeran Wakf was created prior to
the enactment of the Act. Section 4 (1-A), which has been inserted vide Act 27 of
2013, provides that every State Government shall maintain a list of auqaf referred
to in sub-section (1) and the survey of auqaf shall be completed within a period of
one year from the date of commencement of the Wakf (Amendment) Act, 2013, in
case such survey was not done before the commencement of the Wakf
(Amendment) Act, 2013.
76. According to the Trust, such survey has not been conducted and the
provisions of Section 5 and 37 have not been complied with and, therefore, the
possession sought for by the Wakf Board cannot be granted and to impress upon
this Court, the decision of the Apex Court in Salem Muslim Burial Ground
Protection Committee case (supra) is pressed into service.
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77. In Salem Muslim Burial Ground Protection Committee case (supra), the
relevance of Section 5 of the Act has been deliberated and in that context the Apex
Court held as under :-
“28. In the case at hand, there is no iota of evidence from the
very inception as to any express dedication of the suit land for
any pious, religious or charitable purpose by anyone
professing Islam. Therefore, on the admitted facts, the wakf by
dedication of the suit land is ruled out.
* * * * * * *
30. The another limb of the argument is that the suit land has
been declared to be a wakf property vide notification dated
29.04.1959. In this regard, it has to be noted that such a
declaration has to be in consonance with the provisions of
the Wakf Act, 1954 or the Waqf Act, 1995. Both the aforesaid
Acts lay down the procedure for issuing notification declaring
any property as a wakf.
31. The Wakf Act, 1954, which actually is relevant for our
purpose, provides that, first, a preliminary survey of wakfs has
to be conducted and the Survey Commission shall, after such
inquiry as may be deemed necessary, submit its report to the
State Government about certain factors enumerated therein
whereupon the State Government by a notification in the
official Gazette direct for a second survey to be conducted.
Once the above procedure of survey is completed and the
disputes arising thereto have been settled, on receipt of the
report, the State Government shall forward it to the Wakf
Board. The Wakf Board on examining the same shall publish
the list of wakfs in existence with full particulars in the official
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Gazette as contemplated under Section 5 of the Act. Similar
provisions exist under the Waqf Act, 1995.
32. A plain reading of the provisions of the above two Acts
would reveal that the notification under Section 5 of both the
Acts declaring the list of the wakfs shall only be published
after completion of the process as laid down under Section 4 of
the above Acts, which provides for two surveys, settlement of
disputes arising thereto and the submission of the report to the
State Government and to the Board. Therefore, conducting of
the surveys before declaring a property a wakf property is a
sine qua non. In the case at hand, there is no material or
evidence on record that before issuing notification
under Section 5 of the Wakf Act, 1954, any procedure or the
survey was conducted as contemplated by Section 4 of the Act.
In the absence of such a material, the mere issuance of the
notification under Section 5 of the Act would not constitute a
valid wakf in respect of the suit land. Therefore, the
notification dated 29.04.1959 is not a conclusive proof of the
fact that the suit land is a wakf property. It is for this reason
probably that the appellant Committee had never pressed the
said notification into service up till 1999.
33. In Tamil Nadu Wakf Board Vs. Hathija Ammal (Dead) by
Lrs. Etc., it was observed that the Wakf Board should follow
the procedure as required under Section 4, 5 and 6 or Section
27 of the Wakf Act before notifying the wakfs under Section
5 of the Act.
34. In Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal, it
was observed as under:
“16. Thus, it is amply clear that the conducting of
survey by the Survey Commissioner and preparing a
report and forwarding the same to the State or the49/60
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C.R.P.(MD)No.268 of 2022Wakf Board precedes the final act of notifying such list
in the Official Gazette by the State under the 1995 Act
(it was by the Board under the 1954 Act). As mentioned
supra, the list would be AIR 2002 SC 402 7 (2017) 13
SCC 174 prepared by the Survey Commissioner after
making due enquiry and after valid survey as well as
after due application of mind. The enquiry
contemplated under sub-section (3) of Section 4 is not
merely an informal enquiry but a formal enquiry to find
out at the grass root level, as to whether the property is
a wakf property or not. Thereafter the Wakf Board will
once again examine the list sent to it with due
application of its mind and only thereafter the same
will be sent to the Government for notifying the same in
the Gazette….”
35. It may be noted that Wakf Board is a statutory authority
under the Wakf Act. Therefore, the official Gazette is bound to
carry any notification at the instance of the Wakf Board but
nonetheless, the State Government is not bound by such a
publication of the notification published in the official Gazette
merely for the reason that it has been so published. In State of
Andhra Pradesh Vs. A.P. State Wakf Board and Ors.8, this
Court consisting of one of us (V. Ramasubramanian, J. as a
Member) held that the publication of a notification in the
official Gazette has a presumption of knowledge to the general
public just like an advertisement published in the newspaper
but such a notification published at the instance of the Wakf
Board in the 2022 SCC OnLine SC 159 State Gazette is not
binding upon the State Government. It means that the
notification, if any, published in the official Gazette at the
behest of the Wakf Act giving the lists of the wakfs is not a
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conclusive proof that a particular property is a wakf property
especially, when no procedure as prescribed under Section
4 of the Wakf Act has been followed in issuing the same.
36. In view of the aforesaid facts and circumstances, we do not
find any substance in the argument that the suit land is or was
a wakf property and as such would continue to be a wakf
always. In the absence of any evidence of valid creation of a
wakf in respect of the suit property, it cannot be recognized as
a wakf so as to allow it to be continued as a wakf property
irrespective of its use or disuse as a burial ground.”
78. Useful reference can also be had to the decision in Nagoor Kaniammal
case (supra), wherein, placing reliance on the decision of the Privy Council in
Aabadi Begum – Vs – Bibi Kama Zainab (1927 (25) LW 710, the Allahabad High
Court in the case of Jamal Uddin – Vs – Mosque At Mashakganj (AIR 1973 All
328), held as under :-
“22. In this context, it would also be relevant to refer to the
decision of Lucknow Bench of the Allahabad High Court in
Jamal Uddin – Vs – Mosque At Mashakganj (AIR 1973 All
328) wherein, the Bench relying upon the decision of Privy
Council in Abadi Begum v. Bibi Kama Zainab (1927 (25) LW
710 : 99 Ind Cas 669 : AIR 1927 PC 2 held as follows :-
“…… where there is no document executed by the Wakif at the
time of making of the alleged Wakf it is necessary that cogent
evidence should be produced that he had delivered possession
to the Mutawalli. An obvious method of doing so is to get the
property in dispute recorded in the name of the Wakf in the
records maintained by the Municipal Board ……”51/60
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23. In the instant case, it is an admitted fact that the land in
dispute was not recorded in the name of Mosque in the
records, by the Municipal Board. Further, there is no
evidence to show that the said Mohammed Ismail dedicated
suit 1st schedule property to the plaintiffs’ mosque. Even
Ex.A-2 Partition Deed dated 17.8.1946 is silent with regard to
the description of the property. Therefore, the dedication
intended by the said Mohammed Ismail cannot be presumed.
Further, the act of Mohammed Ismail in executing the
Settlement Deeds – Ex.A-4 and A-5 dated 7.5.1984 in favour of
his daughters would show that he did not divest the property to
the Plaintiffs’ mosque. As such, we cannot infer that the said
Mohammed Ismail divested his right and title with the
Plaintiffs’ Mosque.”
(Emphasis Supplied)
79. From the aforesaid decisions, it is abundantly clear that where there is
cogent and convincing evidence which proves the creation of the wakf, then
compliance with the provisions of 4, 5, 6 and 27 of the Act would not be
mandatory. The provisions provided for u/s 4, 5, 6 and 27 is only for the purpose
of getting the property recorded with the wakf where the dedication is not based on
any documents; but where the creation of the wakf is based on the deed, then non-
compliance with the provisions of Section 4, 5, 6 and 27 of the Act would not
render the dedication doubtful.
80. In the present case, it is to be pointed out that the title to the property on
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the date of creation of the wakf vested with Mohd. Meeran and his brother, who,
since deceased, his share was released in favour of Mohd. Meeran by Shnabu
Beevi, the wife of the deceased brother and on and from May, 1921, the right and
title to the property, which has been dedicated to the wakf solely vested with
Mohd. Meeran, who has executed the wakf deed. Therefore the dedication is
based on the deed, which is not in dispute and, therefore, the non-compliance of
the provisions of 4, 5, 6 and 27 would not in any way render the dedication bad in
law.
81. Further, the Wakf Act was enacted in the year 1954, whereas the wakf
was created on 4.9.1919, almost four decades before the enactment of the Act.
Further, upon the enactment of the Act, based on the deed, Ex.A-8, executed by
P.N.Mohd. Meeran, the existence of the wakf had been published in the
Government Gazette dated 13.05.1959. When the wakf had been created in the
year 1919 and has also been published in the gazette on 13.5.1959, the alleged
alienation of the property, which is covered under Ex.A-8, was done only in the
year 1995, which is about three and a half decades from the date of publication of
the wakf in the Government Gazette.
82. Further, the wakf is a private wakf, created u/s 3 (r)(iv) of the Act,
which is not disputed and has been created for the purpose of carrying out
religious and charitable activities, which is the main envisaged in the wakf deed.
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It is not as if the private wakf is created for family purposes and religious and
charitable activities are at the wish of the family. Only the remains, after carrying
out the religious and charitable activities, are to be used for the benefit of the
family. Such being the case, the private wakf, which is created on the basis of a
deed dated 4.9.1919, which is not disputed by the parties, cannot be held to be
non-compliance with Sections 4, 5 6 and 27 of the Act, as the details of the
properties of the wakf are clearly specified in the Wakf Deed dated 4.9.1919 and
the same has been published in the Government Gazette dated 13.5.1959 and the
mere non-mentioning of the details of the properties of the wakf in the gazette
would not render the wakf nugatory and the Government Gazette has to be read
along with the wakf deed, which spells out the details of the properties that have
been dedicated to the wakf.
83. Though other decisions have also been relied on by the learned counsel
for the Trust in support of the aforesaid contention, however, the said decisions
would not be relevant to the case on hand, as in the said cases, there were no
evidence, evidencing dedication for religious or charitable purposes and in view of
the same the Court held that compliance of Sections 4, 5, 6 and 27 are mandatory.
However, in the present case, as stated above, the wakf deed dated 4.9.1919, is not
only brought on record, but is also accepted to have been executed by Mohd.
Meeran, who is the Wakif and the first Muthavalli of the wakf and, therefore, the
said decisions would not be applicable to the facts of the present case.
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84. Once Ex.A-8, wakf deed is accepted and acted upon and all the acts
have been performed on the basis of the recitals in the wakf deed, more
particularly for more than six decades by the succeeding Muthavallis, in the
absence of any power to the succeeding Muthavallis to alter the dedication made
in the wakf deed, the alienation made by the power of attorney of the Muthavalli
of the properties, which have been dedicated for the activities spelt out in the wakf
deed is against the scheme of the wakf deed and the mere non-mentioning of the
details of the survey numbers in the Government gazette with regard to the
properties, which have been dedicated and provisioned u/s 4, 5, 6 and 27 of the
Act would not in any way render the wakf deed illegal or invalid. The contention
to the contra, advanced on behalf of the Trust deserves to be rejected.
85. Insofar as the contention relating to possession of the properties being
with the Trust and that the patta and electricity connection standing in the name of
the Trust are concerned, it is to be pointed out that it is settled law that patta does
not confer title to the property and it is a document meely evidencing possession at
best. In the present case, the title to the property with Mohd. Meeran is not
disputed and, thereafter, after creation of the wakf, more than 70 years had passed
during which the properties were held as wakf properties. There was no breakage
in title and only on the power of attorney being executed by A.J.Fathima, the
Muthavalli of the wakf to her son Nazrudeen, the alienation had taken place.
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Therefore, the title to the property not being with the Muthavalli, but only
administering rights were granted to the Muthavalli, the power of attorney, even if
steps into the shoes of the Muthavalli, cannot alienate the property and the said
alienation is grossly illegal and against the provisions of the Wakf Act. In such a
backdrop, without title, possession being only illegal in nature, the suit has been
laid to recover and restore possession and, therefore, the said documents will not
grant any right to the Trust to hold the properties, which are alleged to have been
purchased from Nazrudeen.
86. Equally, the third party, viz., Appadurai, claims his purchase from one
S.K.Mohammed Ali and S.A.Mohammed Mydeen under a sale deed dated
28.12.1993, which is marked as Ex.B-19. However, neither the predecessors-in-
title of the vendor of Appadurai have been mentioned nor any document
evidencing such a transaction in favour of the vendor of Appadurai have been
placed to prove the title of the vendor of Appadurai to the property. Though the
third party also claims the very same relief and relies on the very same provisions
of law to attack the judgment and decree passed by the trial court in O.S. No.
128/05, however, there is no material to substantiate the claim of the third party
and the third party also stands on the very same footing as that of the Trust and,
therefore, the decree, which is the subject matter of the revision petition in CRP
(MD) No.1051/17 also deserves to be dismissed.
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87. Coming to the appeal preferred against the judgment and decree passed
in O.S. No.159/2004, the lis in the said matter is between the two revision
petitioners herein. This Court has already upheld the findings of the trial court in
O.S. No.128/2005 and has affirmed the judgment and decree passed therein. The
permanent injunction sought for in O.S. No.159/2004 by the Trust has been
dismissed in line with the findings in O.S. No.128/2005. Equally the plea of the
defendants therein was also dismissed on the ground that the title of the vendors of
the defendants to the property has not been established and, therefore, the trial
court held that no relief could be granted in favour of the defendants therein, who
are third parties and the revision petitioners in CRP (MD) No.1051/2017. This
Court, having concurred with the findings recorded in O.S. No.128/2005 and
affirmed the same, the Tr. A.S. No.222/2009 filed by the Trust as against the
negation of permanent injunction sought for does not survive any longer and the
said decree passed in O.S. No.159/2004 dismissing the prayer of the plaintiff
therein and holding that the defendants therein also cannot be granted any relief
deserves to be sustained. This Court does not find any error or infirmity in the
findings rendered in O.S. No.159/2004 and, accordingly, Tr. A.S. No.222/2009
fails and the same deserves to be dismissed.
88. For all the reasons aforesaid, both the revision petitions as also the
appeal suit deserves to be dismissed and, accordingly, the revision petitions and
the appeal suit are dismissed. Consequently, connected miscellaneous petitions, if
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any, stands closed. There shall be no order as to costs.
04 .08.2025
Index : Yes / No
GLN
To
The Principal Subordinate Court
Tirunelveli.
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M.DHANDAPANI, J.
GLN
PRE-DELIVERY
JUDGMENT IN
C.R.P. (MD) NO. 247 OF 2008
C.R.P. (MD) NO.1051 OF 2017
AND
A.S. (MD) NO. 222 OF 2009
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Pronounced on
04 .08.2025
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