Case Analysis: Chhedi Lal Misra v. Civil Judge, Lucknow and Ors.


Citation                                            2007 (2) UC 666, 2007 (3) ADJ 183


Court                                                Supreme Court of India


Case number                                  Civil Appeal No.4816 of 2000


Date of the Judgment                    13.02.2007


Bench                                              Hon’ble Justice Tarun Chatterjee and

                                                          Hon’ble Justice Altamas Kabir


Act Referred      Uttar Pradesh Muslim Waqfs Act,1936 and Uttar Pradesh Muslim Waqfs Act,1960


Sections               Section 5,5(1),38 of the 1936 Act & Sections 29,30,49(4),57A of the 1960 Act


Case Category            Religious and Charitable Endowments – Waqf Board Matters


Introduction

The present Civil appeal before the Supreme Court has been filed by Chhedi Lal Misra (Dead) (“Appellant”) against the Civil Judge of Lucknow & Ors. (“Respondent”). The Apex Court dealt with an essential question of whether the waqif or Mutwalli can claim back the property, which once the Waqif created as waqf. It is adjudicated on Section 39,30,49(4),57A of the U.P. Muslim Waqfs Act,1960.

Background

The present case is an appeal from the final Judgement and order of the High Court of Allahabad, Lucknow Bench on 13.10.1998 in writ petition No. 4272 of 1983[1]

First of all, after receiving the notice, the Appellant filed a suit in the Court of District Judge, Lucknow, who quashed the appeal and decided that since the Board was not made a party to the compromise decree, so it was not binding on the Court. The Appellant went to the High Court and challenged the decision of the Civil Court. The High Court again dismissed the writ petition.

Facts of the Case

In the instant case, the sustainability of waqf was discussed. Once Mirza Mohammed Haider created a waqf of his entire property, including his disputed property in the year 1926. The said waqf was registered under Section 38 of the U.P. Muslim Waqfs Act,1936 which is Pari Materia[2] with Section 29 of the 1960 Act. He also appointed his son Piarey Mirza as the Mutwalli of the waqf. On 23rd January 1954, a notification was issued in the U.P Gazette stating that the waqf and its properties are registered in the register maintained by the Board of Waqfs.

Following the notification, no one challenged it. In 1958, the Waqif (the creator of the waqf) and the Mutwalli (his son) they framed a conspiracy to convert the waqf property into their own private property. The Waqif filed a suit against the properties in question and appealed that the properties in question doesn’t constitute a Waqf. The suit was decided based on a compromise, and the waqif obtained a collusive compromised decree. Shia, Central Board of waqf, Lucknow were the said waqf was registered was not made party to the suit. The Waqif sold the property to “Appellant” Chhedi Lal Misra.

When the facts came into the notice of Shia, Central Board of Waqf, Lucknow, they requested Deputy commissioner to issue a notice to the Appellant. A notice was issued to the Appellant, which directed him to hand over the possession of the property to the waqf board. After that, the Appellant on 12th April 1973 after receiving the notice on 19th March 1973, filed an appeal in Court of District Judge, Lucknow asking him to dismiss the notice.

Issue Raised

Whether once the waqf deed is created, the property is dedicated to the waqf board in the name of Allah, the waqif(the creator of the waqf) and the Mutwalli had any right to transfer the property?

Relevant provisions

The said waqf “Waqf Alalkhair”, known as waqfs for religious and charitable purposes was registered under Section 38 of The Uttar Pradesh Muslim Waqfs Act,1936 which is pari materia with Section 29 of the 1960 Act.

Section 30 of the 1960 Act

Section 30 of the Act talks about the register of the waqf

The Board shall maintain a register of waqfs which shall contain in respect of each waqf, copies of the waqf deeds, when available, and the following particulars, namely:

(a) the class of the waqf;

(b) the name of the mutawalli;

(c) the rule of succession to the office of mutawalli under the waqf deed or by custom or by usage;

(d) particulars of all waqf properties and all title deeds and documents thereto;

(e) particulars of the scheme of administration and the scheme of expenditure at the time of registration; and

(f) such other particulars as may be prescribed.

Section 49B of the 1960 Act

Section 49B  of the Act talks about the Recovery of waqf property transferred in

contravention of Section 49A. In the present case, when the Board came to know about transfer of the waqf property, they asked the deputy commissioner to issue a notice to the Appellant. The Appellant received the notice on 18th March 1973 and filled the appeal on 12th April 1973. Under Section 49(4)  it is mentioned that the Appellant must file the appeal within the period of one month after receiving the notice by the Collector.

49B(1) If the Board is satisfied after inquiring in such manner as may be prescribed that any immovable property entered as the property of a waqf in the register of waqfs maintained under Section 30, has been transferred without the previous sanction of the Board in contravention of the provisions of Section 49-A, it may send a requisition to the Collector within whose jurisdiction the property is situated to obtain and deliver possession of the property to it.

(2) On receipt of a requisition under sub-section (1), the Collector shall pass an order directing the person in possession of the property to deliver the property to the Board Within thirty days from the date of the service of the order.

(4)Any person aggrieved by order of the Collector under subsection (2) may, within thirty days from the date of the service of the order, prefer an appeal to the Court of the District Judge within whose jurisdiction the property is situated.

Section 57A of the 1960 Act

Section 57A of the 1960 Act talks about the Recovery of possession of waqf property from un-authorized occupants.

  1.  If the Board is satisfied after inquiring in such manner as may be prescribed that any person is in unauthorized occupation of any immovable property entered as the property of a waqf in the register of waqfs maintained under Section 30 it may send a requisition to the jurisdiction the property is situated to obtain and deliver possession of the property to it.
  2. The provisions of sub-sections (2),(3),(4),(5),(6) and (7) of Section 49-B shall mutatis’ mutandis apply about a requisition under sub-section (1) as they apply concerning a requisition under sub-section (1) of that section.

Related Cases

Aligarh Muslim university v. Syed Mohammad sayeed Chishti & Ors.[3]

In this case, Hakim Sahab about his house property executed a Waqf alal aulad in the year 1942. A portion of earning from Waqf property was for the maintenance of the Waqif and his decedents. Since the waqf fulfiled all the essential conditions of a valid waqf under Hanai Law and was not vague as it was registered under the Waqf Act. In 1966, after 16 years of registration of waqf Hakim Sahab changed his mind over the possession of the property and he executed a Will in favour of the “Appellant”. The property would go to the Appellant after the death of Hakim Sahab. The question before the Court was whether the Will can change the nature of waqf?

A division bench of Rajasthan High Court held that the waqf is an unconditional, perpetual and irrevocable dedication of property in the name of the Almighty. The object of waqf should be pious, religious or charitable. So the claim for the title over the suit property was rejected, and the Court observed that the waqf property could not be given as wasiyat.

Aqeel Ahmad (petitioner) v. Mohamed Moin & ANR. [4]

The brief facts as set up by the petitioner in the present writ petition was that Mst. Fatima Bibi dedicated his house which had several tenants, in the name of the God. She changed her Will for three times, and at last, she made changes to the Will and named her property to Smt. Mahmooda Begum.

Son of Mahimooda Begum after her death became the owner of the house and transferred the property to the respondent. The respondent filed a release application against tenants to vacate the place and orders were passed to vacate the property. When the petitioner came to know about the waqf, he filed a suit against the respondent that the property has been dedicated to ‘Allah’ and is a waqf property. No order can be issued under the previous suit to vacate the land as the respondent doesn’t have the authority to the property. The Court held that at the time of the first Will by Fatima Bibi she dedicated the property in the name of ‘Allah’ and she specifically mentioned that till her death she could be the owner of the property. In the second Will again, the same words were used. In the third Will, she transferred the Will of the property in favour of Mahnooda Begum. Since in previous two wills she specifically mentioned about being the owner till her death, this shows that the intent of Mst. Fatima Bibi was clear relating to the Will.

Given this, the appeal was dismissed by the Court.

Cheedella Kotaiah v. Waqf Board Andhra Pradesh & Ors.[5]

In this case, the Court held that after notification is published, if a person then purchases a waqf property from anyone; then the said transaction would be declared as null and void. It was also held that the transferee would be bound by the notification.

Judgment

The Court dismissed the appeal made by the Appellant. The Court went with the judgment of the Allahabad High court. It was held that once the property is executed as waqf, it is vested to Almighty in perpetuity.i.e., for all the times to come. The creator of the waqf, The waqif, as well as the Mutwalli, doesn’t possess any right over the property. The status of Mutwalli was held to be just like a manager who had the power of supervision & superintendence over the waqf property. He doesn’t possess the right to transfer any waqf property.

The Court held that the creation of the waqf property could have been questioned if it is shown that the waqif had no intention to create the waqf, but it was done to avoid liability. But in the present case, such stand is not available to the waqif or the Mutwalli as the waqf was created in the year 1926 & registered under Section 38 of the 1936 Act. It was also notified in the Official Gazette in January 1954. It was only after 32 years in 1958 the waqif filed a collusive suit. Even the registration of the waqf under the provisions of the 1936 Act was not challenged, nor did the gazette notification was challenged. This made clear that the creation of the waqf property was not under any liability. After that, the Court held that “ Once a waqf created it continues to retain such character which cannot be extinguished by any act of Mutwalli or anyone claiming through him.”

Conclusion

Waqf is considered to be an unconditional & perpetual dedication of something out of dedicators and vested in the ownership of God. It is like dedicating usufruct of the property for the benefit of mankind, or mosques, institution or for any other purposes which are not forbidden by Islam, to obtain God’s pleasure. It is recognized as pious, religious and charitable. The waqf must be unconditional. It must be perpetual, immediate as well as uncontingent. It is dedicated initially to gain God’s favour even in death. It keeps the practice of Sadaqah Jariyah alive, i.e. continuum of good deeds even after death.

Waqfs serve not only a religious purpose, but also an economic and a social one. Waqfs have been used for the development of the society at large, primarily benefitting the more impoverished strata, by establishing hospitals and schools, thereby overall increasing the standard of living around the waqf. They have played a vital role in the development of the Muslim community since the 9th century and as illustrated above, are beneficiary both for the waqif and the receivers.

Since a waqf is a property that holds immense sentimental, religious, economic and social values, trying to take back it’s possession by either the waqif or the mutwalli is viewed as something indecent and disrespectable. It is an irreversible commitment that once entered into is binding forever. Hence, it is advised that before making a waqf, the individual must consider every aspect and only then, must make this commitment in the name of the Lord.

References


[1] https://www.casemine.com/judgement/in/5608ea8ee4b0149711116795

[2] https://www.merriam-webster.com/legal/in%20pari%20materia

[3] AIR 2007 (NOC) 2493 (Raj.)

[4] 2014(1) ALJ 719

[5] AIR 1978 AP 34

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