- Bookmark
- Share
- CaseIQ
The State Wakf Board... v. Subramanyam And Others.
Comprehensive Summary of the Opinion
Factual and Procedural Background
These second appeals arise from a common judgment of the District Munsif of Pattukottai in O.S. Nos. 784, 786, 788 and 790 of 1967 and the subsequent appeals to the District Judge, West Thanjavur, Thanjavur. The appellant in each second appeal is the State Wakf Board, Madras, represented by its Secretary. The suits were instituted by the Wakf Board for recovery of properties which the appellant alleged were wakf properties that had been illegally and unauthorisedly alienated by one Sheik Dawood.
The trial Court framed issues for trial that included whether the suit properties were wakf properties belonging to Asarpakkiri Thaikkal; whether defendants had perfected title by adverse possession; whether there was merely a nominal charge of Rs. 27 per year on the wakf income; whether the suits were maintainable after supersession of the State Wakf Board; and the relief to which the plaintiff was entitled. The District Munsif held the properties were wakf properties and that the suits were maintainable, but dismissed the suits on the ground of limitation. The District Judge confirmed the factual findings but also dismissed the suits on limitation. The present second appeals challenge those dismissals.
Legal Issues Presented
- Whether the suit properties are part of the wakf properties belonging to Asarpakkiri Thaikkal.
- If the suit properties are wakf properties, whether the defendants have perfected their title by adverse possession.
- Whether there is merely a charge of Rs. 27 every year on the income from all the wakf properties.
- Whether the suits are not maintainable after the supersession of the State Wakf Board.
- Whether the suits are barred by limitation, specifically the applicability and interpretation of Article 96 of the Limitation Act, 1963 (which replaced Articles 134-B/134-C of the Limitation Act, 1908) in relation to suits instituted by a manager of an endowment or by the Wakf Board.
Arguments of the Parties
Appellant's Arguments (State Wakf Board)
- The properties were wakf properties that had been alienated illegally by Sheik Dawood and thus the Wakf Board was entitled to recover possession.
- The courts below erred in holding that the suits were barred by limitation even when Article 96 of the Limitation Act, 1963 is applied. The appellant argued that Article 96 introduces the date of appointment of the plaintiff as manager as a possible starting point for limitation (the later of that date or the date of death/resignation/removal of the transferor), and that the Wakf Board (constituted in 1958) could be treated as manager such that suits filed in 1967 were within the 12-year period.
- Relied on two judgments of this Court (by Natarajan, J.) and two judgments of the Andhra Pradesh High Court to show that Article 96 should be applied so that the suits were within time.
Respondents' Arguments
- Contended that the Wakf Board cannot be treated as a "manager" for the purposes of the third column of Article 96 unless it has expressly assumed direct management of the wakf (relying on Sections 42 and 43-A of the Wakf Act, 1954).
- Alternatively sought to sustain the limitation-based dismissal by arguing that Sheik Dawood had been made an absolute owner under the original of Exhibit A-2 (a will executed by Ibrahim Bivi), and therefore had capacity to alienate the properties such that the Wakf Board could not challenge those alienations.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sornathammal and five ors. v. The Tamil Nadu State Wakf Board through its Secretary, Madras (S.A. No. 400 of 1972) — Judgment dated 11-7-1975 (Natarajan, J.) | Interpretation of Article 96 (Limitation Act, 1963): inclusion of "date of appointment of the plaintiff as manager" as an alternative starting point for limitation; Wakf Board's power under Section 15(2)(h) enables it to step into the shoes of a manager and institute recovery suits. | The Court relied on Natarajan, J.'s reasoning to show Article 96's later-event rule applies and that the Wakf Board is empowered to be treated as a manager for limitation purposes; supports the view that suits instituted by the Board in 1967 were within time. |
| Thangiahvelar and Anr. v. Tamil Nadu State Wakf Board, Madras, through its Secretary and Anr. (S.A. No. 456 of 1972) — Judgment dated 29-7-1975 (Natarajan, J.) | The same view as Sornathammal: interpretation of Article 96 and applicability to suits by Wakf Board; reference to Andhra Pradesh decision that elaborately dealt with old and new Limitation Act articles. | Adopted the same interpretation and reinforced that Article 96's change affects the limitation calculation; the Court in the present opinion treats this judgment as supportive of appellant's case. |
| Chinna Jeeyangar Mutt, Tirupathi v. C.V. Purushotham and Ors. (Andhra Pradesh High Court) | Elaborate treatment of Articles 134-B and 134-C (Old Limitation Act) and Article 96 (new Limitation Act), highlighting the statutory change (inclusion of the manager's appointment date and "whichever is later"). | The present Court quoted and agreed with the Andhra Pradesh High Court's clear exposition that Article 96 allows a suit by a manager appointed within 12 years to question alienations made by a previous manager, and that the "whichever is later" clause prevents a deceased or removed transferor's earlier date from automatically barring such suits. |
| L. Machi Reddy v. The Wakf Board (Andhra Pradesh High Court) | Capacity of the Wakf Board to act as "manager" under Article 96 because Section 15 of the Wakf Act vests wide supervisory, managerial and recovery powers in the Board (including Clauses (h) and (i) of sub-section (2) of Section 15). | The present Court agreed with the Andhra Pradesh High Court's conclusion that the Wakf Board is a "Manager" within Article 96, because of its supervisory and specific powers under Section 15, and thus the constitution of the Board constitutes appointment as manager for limitation purposes. |
Court's Reasoning and Analysis
The court conducted a structured analysis focused on limitation and the statutory powers of the Wakf Board:
- Identification of the relevant limitation provision: the court noted that Article 96 of the Limitation Act, 1963 replaced Articles 134-B and 134-C of the First Schedule to the Limitation Act, 1908 for suits by managers of religious/charitable endowments. For immovable property, Article 134-B (old Act) corresponded to Article 96 (new Act).
- Comparison of the key textual change: the court emphasised the material alteration in column 3 of Article 96 — the period for limitation begins from "the date of death, resignation or removal of the transferor or the date of appointment of the plaintiff as manager of the endowment whichever is later." The court identified the insertion of "the date of appointment of the plaintiff as manager" and the "whichever is later" qualification as decisive changes the lower courts overlooked.
- Application of prior decisions: the court relied on judgments (by Natarajan, J. in Sornathammal and Thangiahvelar, and decisions of the Andhra Pradesh High Court including Chinna Jeeyangar Mutt) which interpreted Article 96 to allow suits by a manager appointed within 12 years from the filing date to challenge alienations by a previous manager. The court found those authorities persuasive and directly applicable.
- Whether the Wakf Board qualifies as "manager" in Article 96: the court examined the Wakf Act. It observed that Sections 15(1) and 15(2) confer on the Board general superintendence, duties to ensure proper administration and application of income, and specific powers such as taking measures for recovery of lost properties (Section 15(2)(h)) and instituting/defending suits (Section 15(2)(i)). Given this statutory role, the court concluded the term "manager" is not a technical term of art but denotes the person responsible for administration, and the Board's constitution under the Wakf Act can be treated as the "appointment" of a manager for Article 96's purposes.
- Rejection of the respondents' narrow construction: the respondents argued that unless the Board assumed direct management under Sections 42 or 43-A, it could not be treated as manager. The court rejected this, noting that those sections do not use the word "Manager" and that the Board's broad supervisory and recovery powers under Section 15 suffice to treat the Board as a manager for limitation purposes.
- Consideration of the respondents' alternative contention on title (Exhibit A-2): the court examined the document relied on by respondents and found it negated the claim that Ibrahim Bivi was conferring absolute ownership in herself so as to enable her son Sheik Dawood to validly alienate the properties. Exhibit A-2 recitals showed the properties had long been treated as wakf properties, endowed by forefathers; therefore Ibrahim Bivi could not have conferred absolute powers enabling valid alienation inconsistent with existing wakf status.
- Conclusion from the foregoing: because the Wakf Board was constituted in 1958 and the suits were filed in 1967, the suits were within the time prescribed by Article 96 when the Board is treated as manager appointed in 1958. Thus the limitation defence fails and the suits cannot be dismissed on that ground.
Holding and Implications
Holding:
The court allowed the second appeals and set aside the judgments and decrees of the Courts below. The suits instituted by the appellant (the State Wakf Board) will stand decreed. The court ordered that the parties bear their respective costs throughout. The opinion concludes with the terse procedural note: "No leave."
Direct Implications for the Parties:
- The decisions of the trial Court and the District Judge to dismiss the suits on limitation are set aside.
- The suits for recovery of the wakf properties instituted by the Wakf Board are decreed in favour of the appellant.
- The parties are to bear their own costs as directed by the court.
Broader Legal Implications Identified by the Court:
- The court affirmed an interpretation of Article 96 that the later of the date of death/resignation/removal of the transferor or the date of appointment of the plaintiff as manager governs the commencement of limitation — placing emphasis on the "whichever is later" language.
- The court held that the State Wakf Board, by virtue of its constitution and the powers vested in it under Section 15 of the Wakf Act, can be treated as a "manager" for the purpose of Article 96 and that the constitution of the Board can be regarded as the "appointment" of a manager for limitation calculations.
- Consequently, suits brought by the Wakf Board within the statutory period measured by Article 96 (taking the Board's appointment/constitution as manager into account) are not barred by limitation merely because more than 12 years may have elapsed from an earlier transferor's death/resignation/removal.
This summary is confined to and derived exclusively from the content of the provided opinion. No information beyond that text has been added.
1. All these second appeals arise out of a common judgment rendered by the learned District Munsif of Pattukottai in O.S. Nos. 784, 786, 788 and 790 of 1967 and the appeals arising therefrom on the file of the Court of the District Judge, West Thanjavur, Thanjavur. The appellant in all these second appeals is one and the same, namely, the State Wakf Board, Madras, represented by its Secretary. The suits were instituted for recovery of the properties involved in these suits. According to the appellant, the properties were wakf properties, they have been alienated by one Sheik Dawood illegally and unauthorisedly, and therefore the appellant was entitled to recover possession of those properties. The defence put forward by the various defendants are reflected in the following issues framed for trial by the trial Court:
(1) Whether the suit properties are part of the wakf properties belonging to Asarpakkiri Thaikkal?
(2) If the suit properties are wakf properties whether the defendants have perfected their title by adverse possession?
(3) Whether there is merely a charge for Rs. 27 every year on the income from all the wakf properties?' (4) Whether the suit is not maintainable after the supersession of the State Wakf Board?
(5) To what relief, if any, is the plaintiff entitled?
2. The learned District Munsif, who tried the suits, held that the suit properties were wakf properties and further held on issue No. 3 that it was not, merely a sum of Rs. 27 per year that was charged on the properties in question. He also held that the suits were maintainable. But he dismissed all the suits only on the ground that they were barred by limitation. On appeals preferred by the appellant herein, the learned District Judge of West Thanjavur, Thanjavur, confirmed the findings of the trial Court on all the points and dismissed the suits only on the ground of limitation again. It is against these judgments and decrees that the present second appeals have been preferred by the plaintiff in the suits.
3. The learned Counsel for the appellant contends that the Courts below erred in holding that even on the application of Article 96 of the Schedule to the Limitation Act, 1963, the suits are barred by limitation. According to the Courts below, it is Article 96 of the Limitation Act, 1963, which has replaced Articles 134-B and 134-C of the First Schedule to the Limitation Act, 1908 that applied to the case and even on the application of that Article, the suits were barred by limitation, because the vendor who sold the suit properties died in 1953 and the suits were instituted only in 1967 after the expiry of more than 12 years. The learned Counsel for the appellant contends that this conclusion of the Courts below is erroneous and for this purpose relies on two judgments of this Court and two judgments of the High Court of Andhra Pradesh. Before I refer to the judgments relied on, it is easier to extract the relevant articles of the limitation act applicable to the present case. Article 134-B of the Limitation Act, 1908 related to recovery of possession of immovable property comprised in an endowment, while Article 134-C was concerned with recovery of possession of movable property comprised in an endowment. Since we are concerned in the present suits only with immovable properties, the relevant Article of the First Schedule to the Limitation Act, 1908, is Article 134-B and the same reads as follows:
4. The most important thing to notice is the entries in Col. 3 in the old Article 134-B and the new Article 96. In Article 134-B the time from which the period begins to run, as mentioned in Col. 3 therein, was, "the death, resignation or removal of the transferor." As against this, Col. 3 in Article 96 relating to the time from which period begins to run is, "the date of death, resignation or removal of the transferor or the date of appointment of the plaintiff as manager of the endowment whichever is later." The most important change made in the third column in Article 96 of the new Act is the introduction of "the date of appointment of the plaintiff as manager" and the further provision, "whichever is later". The Courts below failed to pay any attention whatever to this change in the third column in Article 96 in the new Act and proceeded as if the third column of Article 134-B of the old Act governed the present cases. It is with reference to this change, Natarajan, J., in Sornathammal and five ors. v. The Tamil Nadu State Wakf Board through its Secretary, Madras-4 S.A. No. 400 of 1972 - Judgment dated 11-7-1975, stated:
The last contention on which considerable stress is placed by the learned Counsel for the appellants is that in any event the suit had become barred by limitation on the date when the Wakf Board instituted the suit and consequently the suit must have been dismissed. In support of this contention it is pointed out that the Wakf Board has lost possession of the property even in the year 1929 when Exhibit B-3 was executed and as no suit has been filed within the statutory period to set aside the alienation, the present suit for declaration and possession was not maintainable. This contention unfortunately overlooks many factors. As already stated, the Wakf Board itself was constituted in the year 1958 and the Wakf Act empowers the Board constituted under the Act to institute proceedings for recovery of the properties of a wakf Which had been lost to the trust by an adverse action of the rruthavalli. Section 15 of the Act which specified the functions of the Wakf Board inter alia provides under Sub-clause (2)(h) that the Wakf Board, was empowered to take measures for the recovery of lost properties of any wakf. Having been constituted only in the year 1958 the Board had a 12 year period to institute an action of the kind in hand for recovery of property lost to the wakf and when admittedly the suit had been instituted in the year 1967 itself, the Board was well within time in filing the suit. Even otherwise, it is to be noted that Article 96 of the Limitation Act, 1963 has made a significant change in the period of limitation in respect of suits which are to be instituted by the manager of a Hindu, Muslim or Buddhist religious or" charitable endowment to recover possession of movable or immovable property comprised in the endowment which had been transferred by a previous manager for a valuable consideration While the Indian Limitation Act, 1908 under Article 134(c) had stated that the starting point of limitation for a suit of the kind referred to above would be the date of death or resignation or removal from office of the huq, Article 96 of the present Limitation Act has further added that the date of appointment of the plaintiff as manager of the endowment would also be a starting point of limitation and that the later event viz., the date of death,, resignation or removal of the transferor or the date of appointment of the plaintiff as manager of the endowment would govern the situation. Though the Wakf Board cannot be deemed to-be the manager of the endowment in question, nevertheless by reason of the: power given to it under Section 15(2)(h) of the Wakf Act the Board is empowered to step into the shoes of the manager and institute a suit as contemplated under Article 96. It is therefore futile for the appellants to contend that the suit was patently barred by limitation on the date it was filed.
5. The learned Judge in another judgment of his, namely Thangiahvelar and Anr. v. Tamil Nadu State Wakf Board, Madras, through its Secretary and Anr. S.A. No. 456 of 1972 - Judgment dated 29-7-1975, took the same view. In both the judgments the learned Judge also referred to the decision of the Andhra Pradesh High Court in Chinna Jeeyangar Mutt, Tirupathi v. C.V. Purushotham and Ors. . That judgment elaborately dealt with the relevant articles of the old and new Limitation Acts, namely, Articles 134-B and 134-C of the Old Limitation Act and Article 96 of the new Limitation Act and brought out clearly the changes effected by the new enactment. Natarajan, J., in the former of the two judgments referred to already has agreed with the following observations of the Andhra Pradesh High Court in the judgment referred to above:
By virtue of this amendment, if the plaintiff had been appointed within 12 years from the date of the filing of the suit, he can question any alienation, which was not made for legal necessity or benefit to a Mutt by a previous manager. The fact that 12 years have elapsed from the date of death, resignation or removal of the transferor-manager would not stand in the way of the plaintiff in such a suit from recovering the property. That is clear from the last three words in the amendment 'whichever is later' purposely introduced by the Legislature. In view of this amendment the Courts have got to apply the plain words of the statute to any action brought by any manager of a Hindu, Muslim or Buddhist religious or charitable endowment, to recover possession of the movable or immovable property of an endowment which was the subject of an alienation by a previous manager for valuable consideration. It is also clear that the transferor-manager need not be the immediate predecessor of the plaintiff, that files such a suit. From a reading of Article 96, such a conclusion cannot be arrived at. It is enough if the alienation was made by a previous manager. The first column does not say that it should be by the previous manager.
Thus, the decision of Natarajan, J., in this Court and the decision of the Andhra Pradesh High Court with which Natarajan J., agreed fully support the contention of the appellant, namely, that even applying Article 96 of the new Act, the suits are within time, because the Wakf Board was constituted only in 1958 and the suits themselves were instituted in the present cases in 1967 before the expiry of 12 years as provided for in Article 96 of the new Act.
6. However, the learned Counsel for the respondents sought to counter the above position by putting forward the contention that the Wakf Board cannot be said to be a manager appointed within the meaning of the expression as contained in the third column to Article 96 of the new Act. This question has been considered by Natarajan, J., himself and the learned Judge has pointed out that the Wakf Board is empowered to step into the shoes of the manager and therefore will come within the scope of the third column of Article 96 of the new Act. However, Mr. Venkataramani contended that having regard to the scheme of the Wakf Act itself, the Wakf Board cannot be said to be a manager for this purpose. In support of this contention, he relied on Sections 42 and 43-A of the Wakf Act, 1954. Section 42 of the Wakf Act provides that when there is a vacancy in the office of the mutawalli of a wakf and there is no one to be appointed under the terms of the deed of wakf, or where right of any person to act as mutawalli is disputed the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit. Section 43-A which was introduced by the Central Act XXXIV of 1964 enables the Wakf Board to assume direct management of certain wakfs. Sub-Section (1) of Section 43-A is:
Where no suitable person is available for appointment as a mutawalli of a wakf under Section 42 or under Sub-section (2) of Section 43, the Board may, by notification in the Official Gazette, assume direct management of the wakf for such period or periods, not exceeding in the aggregate five years, as may be specified in the notification.
7. The argument of the learned Counsel now is that only when the Wakf Board assumes direct management of the wakf, it can be said to be a manager as contemplated by the third column in Article 96 of the new Act and that so long as there is no assumption of direct management, the Wakf Board cannot be said to be a manager. I am unable to accept this argument, from one point of view. Neither Section 42 nor Section 43-A of the Wakf Act on which reliance has been placed uses the word, "Manager". The word "Manager" in relation to a religious or charitable endowment is not a term of Article The said word denotes the person who is in charge of the administration of the endowment or manages the property or supervises the performance of the charity and the word is one of very wide and general import. As a matter of fact, the judgment of Natarajan, J., has referred to the provisions contained in Section 15(2) of the Wakfs Act. Section 15(1) of the Wakfs Act provides that subject to any rules that may be made under the said Act, the general superintendence of all wakfs in a State shall vest in the Board established for the State; and it shall be the duty of the Board so to exercise its powers under the Act as to ensure that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such wakfs were created or intended. Sub-section (2) of Section 15, without prejudice to the generality of the powers conferred by Sub-section (1), by way of illustration, enumerates certain specified powers also. One such specified power so enumerated is contained in Section 12(2)(h), which enables the Wakf Board to take measures for the recovery of lost properties of any wakf. section 15(2)(i) also enables the Wakf Board to institute and defend suits and proceedings in a Court of law relating to wakfs. The combined effect of Section 15(1) and 15(2) of the Wakfs Act will certainly be sufficient to designate the Wakf Board as a manager for the purpose of recovery of possession of wakf property and consequently it can certainly be termed as "Manager" contemplated by the third column of Article 96 of the new Limitation Act and if so construed, the constitution of the Wakf Board under the statute can certainly be construed to be the appointment of the Wakf Board as Manager of the wakf in question, because even the word, "appointment" just like the word, "Manager" is not a term of art and therefore, has to receive its ordinary, natural and normal meaning.
8. In fact, there is a judgment of the High Court of Andhra Pradesh dealing with the same question in L. Machi Reddy v. The Wakf Board of . In that judgment, the Andhra Pradesh High Court pointed out:
In so far as the capacity of the Board to institute the present suit as manager is concerned, Section 15 of the Wakf Act makes it abundantly, plain that subject to any rules that may be made und"r the said Act, the general superintendence of all wakfs in a State shall vest in the Board established for the State; and it shall be the duty of the Board so to exercise its powers under the said Act as to ensure that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such wakfs were created or intended. Thus, a very wide power is given to the Board not only to supervise the functioning of these wakfs but to see that they are properly maintained, controlled and administered. The Board is specially charged with the duty to see that the income of the wakfs is duly applied to the objects and for the purposes for which the wakfs were created or intended. Apart from this general power which section 15(1) confers on the Board, Clauses (h) and (i) of Sub-section (2) of that section specifically empower the Board to take measures for the recovery of lost properties of any wakf and to institute and defend suits and proceedings in a Court of law relating to wakfs.
What must necessarily follow therefore is that the Wakf Board having supervisory powers and having special duties to perform is not only entitled to file the suit for recovery of the, property lost to the wakf but also can manage and administer the property or see that the properties are properly managed and administered and its income applied to the objects and for the purposes for which the wakf was created or intended Keeping in view these statutory functions and the powers of supervision of the Wakf Board over the wakfs, I do not experience any difficulty in holding that the Wakf Board is a Manager within the meaning of Article 96 of the Limitation Act.
For the reasons already indicated by me, I am in entire agreement with the above reasoning and conclusion of the High Court of Andhra Pradesh. The result of this will be that the Wakf Board is a manager as contemplated by Article 96 of the new Act and the constitution of the Wakf Board under the Wakf Act will constitute the appointment of the Wakf Board as manager of the wakfs in question. If so, the Wakf Board having come into existence in 1958 and the suits having been instituted in 1967, the suits are well within time according to Article 96 of the new Limitation Act and therefore the suits cannot be said to have been barred by limitation.
9. Having realised this position, the learned Counsel for the respondents sought to sustain the judgments of the Courts below on a different point, namely, that Sheik Dawood, who executed the sale deeds in question, was made an absolute owner of the properties under the original of Exhibit A-2, the will executed by Ibrahim Bivi and that therefore he had the capacity to alienate the properties and hence the appellant cannot question the said alienations. Since this argument was an involved one, I asked the learned Counsel for the respondents to state whether it was his contention that the properties were not wakf properties at all and even then the learned Counsel merely stated that it might amount to such an argument. However, the very document Exhibit A-2 relied on by the learned Counsel will completely negative this argument. Exhibit A-2 itself does not proceed on the basis that the properties belonged to Ibrahim Bivi and that she was creating a wakf over the properties for the first time under that document. On the other hand, the terms of Exhibit A-2 make it clear that the properties had become wakf properties long ago and that they were being treated as wakf properties from time immemorial. The language used in Exhibit A-2.
These very recitals contained in Exhibit A-2 make it clear that the properties had been endowed as wakf properties by the forefathers of the husband of Ibrahim Bivi, the person who executed the original of Exhibit A-2. If so, the question of the said Ibrahim Bivi conferring absolute powers on her son Sheik Dawood, who executed the sale deeds in question, cannot possibly arise.
10. No other point was urged before me.
11. Under these circumstances, the second appeals succeed and they are allowed and the judgments and decrees of the Courts below are set aside and the suits instituted by the appellant herein will stand decreed. The parties will bear their respective costs throughout. No leave.
Alert