Sabir Ali Khan vs Syed Mohd. Ahmad Ali Khan and Others

ss. 52(2) and 107 – Recovery of wakf property transferred in contravention of s. 51 – Waqf created by one shia muslim, by a deed in the year 1934 – Original Waqif had three sons – Eldest sonQA became mutawalli on death of his father – However, his younger brothers got their names mutated as bhumidars in revenue records for the said property – Suit filed by the eldest son seeking declaration that it was a waqf property and sought relief of expunging the names of his two brothers – During the pendency of suit, one of the brother of QA, sold his one- third share to one of his nephew, referred as first sale – Though said suit decreed in favour of the plaintiff, it abated in view of the consolidation proceedings – First sale was held to be infirm – Thereafter, in 1974, compromise entered between the three brothers and they purported to disown the waqf – Based on the compromise, second sale made by QA in favour of his other nephew – Challenged to, by QA’s son in a writ petition – In 1988, QA resigned as mutawali – Case of the appellant-son of the transferor that QA’s son became the mutawali – Writ petition withdrawn – Complaint filed before the U.P. Shia Waqf Board by QA’s other son challenging the transfer of waqf property by his father and uncle, as also the compromise – Controller of waqf Board by invoking s. 52(1) directed the Collector to recover and deliver possession of the disputed land from the unauthorized occupants, nephew of QA-first respondents – Collector directed the respondents to deliver possession of the property to the Board within 30 days – First respondents challenged the same and the appeals were allowed by the ADJ – However, the High Court set aside the writ petition holding that the ADJ did not possess jurisdiction – In appeal, the waqf tribunal held that the respondents had acquired title by adverse possession and set aside the order of the Collector – Said order upheld by the High Court – However, the revision petitions dismissed – On appeal, held: Beneficiary of a waqf, being neither a trustee nor a co-owner of waqf property, acquired title through adverse possession even if it was the property of the waqf – High Court rightly held that the father created a valid and effective waqf as required of a Shia Muslim and after his death, his eldest son took over as Mutawali – ss. 49A and 49B came to be inserted by Act 28 of 1971 and the second sale took place in 1974, which is after the insertion of ss. 49A and 49B in the 1960 Act, thus, the power, vested with the Board to take action for recovery of possession u/s. 49B – Thus, the sale deed of the year 1974 by eldest son in favour of his nephew, being in the teeth of the prohibition against a sale without the previous sanction of the Board, was illegal – In order that a suit may fall u/Art. 96, there must be a transfer by a Manager which would include a Mutawalli of a waqf – Art. 96 would not apply as it is a case of a void sale and not voidable sale – Uttar Pradesh Muslim Waqf Act, 1960 – s. 49 A, B.

s. 107 – Recovery of Wakf properties – Applicability of the Art.96 and 65, as regards the first sale effected in the year 1960 and second sale in the year 1974, when the Waqf Act came into force on 01.01.1996 – Stated – Limitation Act, 1963 – Arts. 96 and

65. Dismissing the appeals, the Court

HELD: 1.1 The High Court in the impugned order has confirmed the findings of the tribunal that respondent no.1 in both the cases have acquired title by adverse possession. This is on the basis that the first sale was effected in the year 1960 and the second sale was effected in the year 1974. The Act came into force with effect from 1.1.1996. The period began to run from the dates of the two sale deeds as the sales were void. The further finding is that Article 96 of the Limitation Act, 1963 did not apply to the first sale of the year 1960. The said sale was effected at a time when QA the eldest brother was the Mutawalli. The sale was effected by a person who in other words was not the Mutawalli. Therefore, Article 96 did not apply. As far as the second sale is concerned, it was effected by QA on 26.09.1974 purporting to convey his one-third right to his nephew who is the first respondent in the other appeal. The further reasoning of the High Court is that the second sale deed was executed by the Mutawalli. The court thereafter demarcated the field covered by Articles 65 and 96. The court then also took into consideration Section 27 of the Limitation Act, 1963. The Court found the proper interpretation was that Article 96 was to be confined to suits to recover possession where the right to recover possession had already not been lost under Section 27 of the Limitation Act, 1963. Article 96, in other words, it was found, applied to voidable transfers. On the said basis, finding that the second sale represented a case of void transfer, it was found that Article 96 did not assist the appellant. It was also found that there is no obstacle in a beneficiary of a Wakf perfecting title by adverse possession. Such an obstacle, undoubtedly, existed in the case of a Mutawalli, a trustee or a co-owner. A beneficiary was none of the above. Thus, proceeding on the basis that the first respondent in both the appeals were beneficiaries of the Wakf and as the sales under which they claimed were found to be void, the period of limitation contemplated under Article 65 of the Limitation Act began to run from the date of the sale. This meant that when the Act was born on 01.01.1996, the title stood vested with the first respondent by adverse possession. It is further found that Section

107 of the Act under which the Limitation Act was not applicable to the Act could not rescue the case of the appellant. [Para 16][958G-H; 959-A-E]

1.2. As far as the first sale is concerned, the sale was not effected by the Mutawalli or the Manager of the Waqf. The sale was effected by the brother of the Mutawalli. Thus, the High Court is correct in finding that Article 96 will not come to the aid of the appellant. [Para 20][961-C-D]

1.3. As far as the second sale is concerned, it was no doubt, executed by the Mutawalli by sale deed 26.09.1974. This is a sale executed by him on the strength of the compromise which was entered into between the three brothers on 13.02.1974. The compromise led to order dated 12.09.1974 being passed by the Deputy Director (Consolidation) setting aside the dismissal of the revision by order dated 20.09.1969 as also the dismissal of the first restoration application dated 02.03.1972. If the said sale is found to be valid, then obviously, the appellant would fail. If on the other hand, the sale is void, the question would be whether the proceeding initiated beyond 12 years from the date of the sale would be within time. [Para 21][961-D-F]

1.4. There cannot be any doubt that Waqf property can be the subject matter of acquisition of title by adverse possession. That a Mutawalli however cannot acquire rights over waqf property by adverse possession is not open to question. The High Court finds that Article 96 will not apply as it is a case of a void sale and not voidable sale. [Paras 22, 23][961-H; 961-A]

1.5. Sections 49A and 49B were inserted in the 1960 Act by way of U.P. Act 28 of 1971. Therefore, the sale deed dated 26.09.1974 by QA in favour of his nephew, being in the teeth of the prohibition against a sale without the previous sanction of the Board, was illegal. It is this narrative which gives rise to the question as to whether the sale is void as it was in transgression of a statutory mandate, and other related issues. [Para 35][973F]

1.6. Section 52 of the Act, which is the fountain head of the action by the Controller of the Waqf Board and the Collector, is a sequel to Section 51. Section 51(1)(a) as substituted by Act 27 of 2013, subject to the provisos declares a sale, gift, exchange or mortgage or transfer of waqf property to be ab initio void. Section

52 of the Act provides that if the Board is satisfied, after making any inquiry, as may be prescribed, that any immovable property of a waqf entered as such in the Register of Waqfs maintained under Section 36, has been transferred without previous sanction of the Board in contravention of Sections 51 or 56 of the Act, it may send a requisition to the Collector of the place within which the property is situated to obtain and deliver possession. The Collector is bound to pass an order directing the person in possession to deliver the property to the Board within 30 days from the receipt of the Order. It is under this provision that the impugned Orders came to be passed. [Paras 36, 37][974-B; 974D-F]

1.7. The Act came into effect on 01.01.1996. Section 52 empowers the Board to send a requisition to the Collector, if property has been transferred without the previous sanction of the Board in contravention of Section 51, inter alia. Section 51 has provided that any sale of property, which is waqf property, without the previous sanction of the Board, would be void. The two sales in this case took place prior to 01.01.1996. The first sale is dated 14.10.1960 whereas the second sale is dated 13.09.1974. [Para 38][974-F-H]

1.8. Section 49B of the 1960 Act is pari materia with Section

52 of the Act. In other words, it provided that the Board may, if a transfer is made contravening Section 49A of the 1960 Act, send requisition to the Collector for recovery of possession. Section 49A of the 1960 Act also provided on similar terms as provided in Section 51(1) of the Act that for a sale of property comprised in a waqf, previous sanction of the Board was necessary. As far as Sections 49A and 49B came to be inserted by Act 28 of 1971 and the second sale took place in 1974, which is after the insertion of Sections 49A and 49B in the 1960 Act, therefore, the power, indeed, vested with the Board to take action for recovery of possession under Section 49B. Under Section 112(3) of the Act, it is proceeded on the basis that the 1960 Act would stand repealed. However, the proviso declares that the repeal would not affect the previous operation of the corresponding law. The corresponding law, in this case is Section 49A read with Section 49B. Action taken in the exercise of the power thereunder, is to be deemed as taken in the exercise of powers under the Act. The powers under the Act must be treated as flowing from Section

52 of the Act. The proviso to Section 112(3) provides that the provisions in the Act, which in this case would be Section 52, must be treated as being on the Statute Book. [Para 40][975-DH]

1.9. The waqf in question is created by the father by deed dated 26.07.1934. It is, no doubt, a waqf-alalaulad. A waqf-alalaulad is a waqf under Mohammaden Law. [Para 43][976-D]

1.10. Section 3 of the Mussalman Wakf Act, 1923 obliged the Mutawalli to furnish statement containing certain particulars to the competent Court. Notice of the Statement was to be published under Section 4. The 1923 Act provided for audit of accounts and the provision for expense which could be incurred by the Mutawalli came to be inserted. Section 10 provided for penalty. Certain waqfs were excluded from its purview under Section 12. In the United Provinces, which meant the United Provinces of Agra and Awadh, the 1936 Act, came to be enacted. [Para 45][977-E-F]

1.11. No doubt, the Court was dealing with a case of a waqfalal-aulad. The Judgment must essentially be viewed in the context of the definition of ‘religious and charitable purpose’ provided in the Act in question. [Para 49][980-A]

1.12. The Wakf in question is dated 26.07.1934. The 1936 Act applied to Wakfs created before or after the commencement of the Act. However, Section 2(2) declares that the Act shall not apply to certain waqfs. They included a waqf whereunder not less than 75 per cent of the total income, after deduction of certain sums, was for the time being payable for the benefit of the waqif or his descendants. However, Section 38(1) of the 1936 Act made it clear that every waqf, whether subject to the Act or not and whether created or after the commencement of the 1936 Act, shall be registered. Proceeding on the basis that the waqf dated 16.07.1934 was waqf-alal-aulad and which, in terms of Section 2(2)(i), was not subject to the provisions of the 1936 Act, it was compulsorily registerable in view of Section 38(1). Any waqf which is registered under the 1936 Act would also be deemed to be registered under the 1960 Act. That is, though the 1936 Act did not apply to certain wakfs, but when it comes to registration under Section 38, it was mandatory for every wakf to be registered (i) whether subject to the Act and ii) whether created before the Act or not. Thus, the registration of the Wakf dated 16.07.1934, was in fact compulsory under Section 38 of the 1936 Act. [Para 50][980B-E]

1.13. It was found that there was a valid waqf from the standpoint of the Shia law and the Consolidation Authorities also found that there was a waqf till the Deputy Director, Consolidation revisited the matter only on the basis of the compromise between the brothers, the terms of the waqf did contemplate a certain sum being set apart for charitable purposes. In this regard, the stipulation in the deed that a sum of Rs. 500/- will be spent on charitable purpose such as Muazzin and lighting in the mosque and emambara, majlallse ashra of the sacred month of Moharram is noticed. No doubt, there is the residuary clause, which reveals that the wakif has provided that if descendants cease to exist, the income from the endowed property will be managed by a Committee to be spent for charitable purposes. [Para 51][980-EH; 981-A]

1.14. The extent of the income, which is set apart for the purpose, be it religious, pious or charitable, in the facts, cannot detract from the dedication of the whole property. [Para 53]

1.15. The fact that the property of the waqf has been dealt with in a manner, which is illegal, or that it was not questioned, cannot deflect this Court from either finding that there was a valid waqf or that the property which remained of the waqf, must be dealt with in accordance with law. The compromise before the Deputy Director (Consolidation) and the order based on the same are in the teeth of Section 69 of the 1960 Act, therefore, the orders passed by the Consolidated Officer and Settlement Officer about the Waqf would revive. [Para 54][982-G-H; 983-A]

1.16. The High Court proceeded on the basis that a Mutawalli may not be able to acquire title by adverse possession. Equally, a trustee and a co-owner stand precluded in this regard. A beneficiary of a waqf, however, being neither a trustee nor a co-owner of waqf property, can acquire title through adverse possession even if it is the property of the waqf it is found. [Para 55][983-B-C]

1.17. A beneficiary of a waqf cannot be described as a stranger to the waqf. No doubt, a beneficiary is not to be conflated in his position with a Mutawalli. The Mutawalli is a manager of the waqf. The property of the waqf, in law vests in the almighty. The Mutawalli acts merely as the manager. For the purposes of Section 10 of the Limitation Act, no doubt, he is treated as a trustee. A plea of adverse possession undoubtedly requires the requisite intention, viz., animus possidendi. This is besides actual possession for the required period. A beneficiary would be entitled to receive benefits in terms of the waqf deed. In the case of adverse possession, since a requirement is that the possession must be hostile to the real owner and since the real owner is the almighty, the requirement would be that such a person must have the necessary animus to hold contrary to the title of God. In the case of a co- owner while mere assertion of title in himself may hardly suffice as the possession of a co- owner is taken to be possession on behalf of all co-owners a case of ouster being successfully established would entitle the co-owner to succeed. [Para 56][983-C-H]

1.18. In order that a suit may fall under Article 96, there must be a transfer by a Manager which would include a Mutawalli of a waqf. It must be for valuable consideration. In order that there is a transfer, it must not be still born. It should not be a void transaction. This is for the reason that a void transaction would not amount to a transfer. An unauthorized alienation, a transfer, which was made by a Mutawalli, for which, there was no authority in the waqf deed, would constitute a transfer to which Article 134B and Article 96 would have applied. With the advent of the laws relating to Waqfs which included the 1960 Act in Uttar Pradesh, the Mutawalli was obliged to obtain the previous sanction of the concerned Board. In cases where a transfer is made under the 1960 Act without previous sanction of the Board, the transfer would be void. This is for the reason that the requirement of previous sanction is a statutory command conceived with a definite and sublime purpose and the transgression of which can only result in a void transaction. There is no provision which enables the validating of such a sale. In fact, the stand of respondents 2 and 4 is that, the transfers were void. Therefore, the authorities have also proceeded on the basis that the transaction was void and therefore can proceed on the said foundation. [Para 61][985-G-H; 986-A-D]

1.19. Proceeding on the basis that the sale executed in 1974 was a void transaction. Article 96 of the Limitation Act, 1963 cannot be invoked in the case of a void transaction. The impugned Order, proceeding on the said premise, cannot be said to be flawed. There cannot be any embargo against a beneficiary of a waqf claiming acquisition of title by adverse possession. While he may be a person who can be treated as “interested” in a waqf within the meaning of Section 2(k) both by reason of the fact that he is a recipient of pecuniary or other benefit and also he may be a descendant of the wakif, it is a far cry from describing him as a Trustee. The beneficiary may have benefits coming his way in terms of the waqf deed. He may be clothed with rights in this regard. [Para 62-64][986-D-F; 987-A-B]

1.20. The term ‘fiduciary’, as such, has not been defined, so is the case with the ‘fiduciary relationship’. In fact, Section 88 of the Trusts Act, 1882, inter alia, provides that a person standing in a fiduciary character and bound to protect the interest of another, cannot by using such character, obtain an advantage and resist making over the benefit to the person, whose interest he was bound to protect. A fiduciary can, therefore, be taken to be a person who becomes charged with the duty to protect the interest of another. Fiduciary relationship is founded upon the reposing of confidence by one in another. The beneficiary of a waqf is endowed with rights in terms of the waqf deed. No duty is culled out, as such, to protect the interest of another. No doubt, it could be said that as the property in a waqf, vests in the Almighty, there must be a concern and, undoubtedly, a moral duty to act in a manner that the object of the wakf is fostered. But a beneficiary is not like a trustee, who assumes possession in his character as a trustee, coming under the restraint of discarding his character as trustee and donning the robes of an encroacher or a person asserting hostile title. It is not, as if, the beneficiary was in possession of the property in any capacity prior to the sale. [Paras

65 - 67][987-C-D; 988-H; 989-A-B; 989-C]

1.21. In the second sale, the former Mutawalli, viz., QA, entered into the sale deed on the strength of a compromise and the order of the Deputy Director, Consolidation, under which, he purported to act as one possessed of one-third right in his own right. No doubt it would have mattered little to the applicability of Article 96 that the transferor purported to transfer waqf property professing it to be his property. But this is a case where the voidness arises on account of the fact that what is found to be waqf property has been purported to be alienated contrary to the peremptory statutory mandate. [Para 68][989-D-F]

1.22. The argument that Section 107 of the Act would assist the appellant in tiding over the bar of limitation does not appeal. Section 107 of the Act, no doubt, proclaims that nothing in the Limitation Act,1963 shall apply to any suit for possession of the immovable property comprised in any waqf or for possession of any interest in such property. [Para 69][989-F-G]

1.23. The Act came into force on 01.01.1996. The first sale was effected on 14.10.1960. The second sale was effected on 26.09.1974. As far as the first sale is concerned, Article 96 cannot be pressed into service as the transfer was not purported to be made by the Mutawalli. The doors stood open for the application of Article 65. As far as the second sale is concerned which was effected in the year 1974, the Article 96 was not applicable, the only other competing Article vying for acceptance, appears to be Article 65. Applying Article 65 and as the adverse possession would kick in from the date of the transfer, on the expiry of twelve years, i.e., in 1986 applying Section 27 of the Limitation Act whatever title remained within the meaning of Section 65 would stand extinguished. The Act was brought into force only with effect from 01.01.1996. The purport of Section 107 cannot be understood to be that it would revive an extinguished title as nothing stood in the way of running of time from the date of the second sale under the law as it stood. [Para 70][989-G-H; 990-A-C]

1.24. No doubt, the law of limitation is what prevails as on the date of the suit. Taking 1997 as the date, on which a suit is filed, and applying the Act, which enables the plaintiff to disregard the bar of law of limitation, it cannot mean that what stood extinguished under the earlier law would revive. [Para 71][990C-D]

1.25. The issue in the High Court essentially centered around the question whether Article 96 would apply and applying the same, the appellant could get around the impact of Article 65 read with Section 27 of the Act. Article 96 has no application. Even in regard to a proceeding under the Act be it Section 52 if as on the date the action is taken, the title in the property stood vested with the person in possession by virtue of Section 27 of the Limitation Act then it may not be permissible to ignore the right which had been acquired. [Para 72][991-A-B] T. Kaliamurthi and Another v. Five Gori Thaikkal Wakf and Others (2008) 9 SCC 306 : [2008] 11 SCR 758; C. Beepathumma and Others v. Velasari

Shankaranarayana Kadambolithaya and Others AIR 1965 SC 241 : [1964] SCR 836 – relied on.

Chintamani Sahoo (deceased by LR.) and Others v. Commissioner of Orissa Hindu Religious Endowments, Orissa and Others AIR 1983 Orissa 205; Anisur

Rahman and Others v. Sheikh Abul Hayat AIR 1965 Patna 390 – approved.

Shri Mohammad Ismail Faruqui v. Union of India and Others AIR 1995 SC 605 : [1994] 5 Suppl. SCR 1; The Mosque Known as Masjid Shahid Ganj, and Others v. Shiromani Gurdwaba Prabandhak Committee, Amritsar, and Another AIR 1940 PC 116; Faqir Mohd. Shah v. Qazi Fasihuddin Ansari and Others AIR 1956 SC 713; Moattar Raza and Others v. Joint Director of

Consolidation, U.P. Camp at Bareilly and Others AIR 1970 Allahabad 509; Khilli Ram v. State of Rajasthan (1985) 1 SCC 28 : [1985] 1 SCR 1136; (Smt.) Amina Khatoon v. Third Addl. D.J. Farukhabad and Others 1987 All LJ 1282; Chhedi Lal Misra (Dead) Through Lrs. v. Civil Judge, Lucknow and Others (2007) 4 SCC

632 : [2007] 2 SCR 568; K. S. Viswam Iyer (Dead) Through Lrs. v. State Wakf Board, Madras (1994) Suppl.

2 SCC 109; Wali Mohammed (Dead) by Lrs. v. Rahmat Bee (Smt) and Others AIR 1999 SC 1136 : [1999] 1 SCR 852; Fazlul Rabbi Pradhan v. State of West Bengal and Others [1965] 3 SCR 307 : AIR 1965 SC 1722; Dr. M. Ismail Faruqui and others v. Union of India (1994) 6 SCC 360 : [1994] 5 Suppl. SCR 1; Syed Yousuf YarKhan and Others v. Syed Mohammed Yar Khan and Others [1967] 2 SCR 318; M. Siddiq (Dead)Through Legal Representatives (Ram JanmabhumiTemple Case) v. Mahant Suresh Das and Others (2020) 1 SCC 1 : [2019] 18 SCR 1; Karnataka Board of Wakf v. Govt. of India and Others (2004) 10 SCC 779 : [2004] 1 Suppl. SCR 255; Thakur Mohd. Ismail v. Thakur Sabir Ali AIR 1962 SC 1722 : [1963] SCR 20; Ahmed G.H. Ariff and Others v. Commissioner of Wealth Tax, Calcutta AIR 1971 SC 1691 : [1970] SCR 19; Chinna Jeeyangar Mutt, Tirupath v. C. V. Purushotham and Others AIR 1974 AP 175; The Special Officer for Wakfs Madras v. Subramanyam and Others AIR 1977 Madras 79; Abdul Fatah Mohammad Ishak v. Russomy Dhar Chaoudhary 22 Indian Appeals 76; U.P. Sunni Central Board of Waqf and Another v. Hasan Jehan Begum and Another AIR 1977 All 18; Central Board of Secondary Education and Another v. Aditya Bandopadhyay and Others (2011) 8 SCC 497 : [2011] 11 SCR 1028 – referred to.

Mulla on “Principles of Mohammadan Law” (22nd

Edition) – referred to.