Citation Codes

Equivalent Citations

citation codes

Case Number

S.A No. 638 of 1988 & Cross Objection

Judges

S. Sankarasubban
A. Lekshmikutty, JJ.

Acts

Sec. 85 of the Wakf Act, (hereinafter referred to as the Act) Civil Court
Sec. 85 of the Wakf Act, 19957 (2)
sub-section (1) of Sec. 6,
WAKF ACT 1954
Wakf Act, 1995

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Smart Summary

Structured Summary of the Court Opinion

Factual and Procedural Background

This Second Appeal arises from O.S. No. 91 of 1984 filed in the Additional Sub Court, Badagara. The plaintiff is the Jumayath Palli Dharas Committee which sued for a declaration of title over the plaint schedule property, for recovery of possession, and for an injunction restraining the second defendant from demolishing an existing building.

The Jumath Palli and Khabarsthan belonged to the Peedikavilakath tarwad; the first defendant was the karanavan and was described as the mutawalli of a wakf created over the property. Five members of the tarwad executed a registered agreement dated 13-2-1973 (referred to in the opinion as Ext. A2) authorising the plaintiff-committee to manage the wakf property. The first defendant later executed another document (Ext. A3) dated 2-5-1984 in favour of the second defendant; it was asserted that the second defendant's father held an oral entrustment from 1948.

At trial the first defendant supported the plaintiff's case; the second defendant claimed possession since 1948 and contended, among other things, that the plaintiff lacked locus standi and that Ext. A2 was invalid. The trial court framed several issues, found the suit maintainable, held that Ext. A2 conferred on the plaintiff the right to sue, found that Ext. A3 covered the plaint schedule property and formed part of the wakf, and decreed the suit in favour of the plaintiff.

On appeal to the District Court the appellate court agreed with the trial court on the factual status (that the first defendant had no right to the property and that Ext. A3 was invalid as conveying wakf property), but, on the ground that the plaintiff had no title to the plaint schedule property, set aside the decree and dismissed the suit — while noting that such dismissal would not affect the rights of the de jure mutawalli to institute appropriate proceedings. The present Second Appeal challenges that judgment and the District Court's disposition.

Legal Issues Presented

Whether this Court is competent to decide questions relating to wakf property in view of Section 85 of the Wakf Act, 1995 (i.e., whether civil courts are barred from entertaining such questions where the Act confers jurisdiction on a Tribunal).
Whether the right or office of mutawalli is transferable (i.e., whether Ext. A2 effecting transfer/management of mutawalliship was valid).
Whether the court below (District Court) was correct in holding that the plaintiff was not legally entitled to file the suit (i.e., whether the plaintiff had locus standi/right to sue for recovery of possession).

Arguments of the Parties

Plaintiff / Appellant (Jumayath Palli Dharas Committee)

Relied on the registered agreement Ext. A2 (13-2-1973) by tarwad members authorising the plaintiff to manage the wakf property; this supported the plaintiff's right to sue and to manage the property.
When the validity of Ext. A2 was challenged, counsel argued that even if Ext. A2 were invalid as a formal transfer of mutawalliship, the plaintiff having acted as mutawalli (de facto) was entitled to recovery of possession. Counsel pointed to the definition of mutawalli under the Wakf Act, 1954 (which includes a person who acts as mutawalli) and to documentary support from the Wakf Board (that the plaintiff regularly submitted accounts and paid contributions).
Cited case authorities (Madras High Court decisions) and doctrinal material to support the proposition that a person acting as mutawalli (de facto trustee) can exercise the rights and duties of mutawalli, including suing for possession.

Second Defendant (Respondent / Cross-objection)

Contended that his father had been in possession since 1948 (the opinion records this claim and later refers to a contemporaneous passage using the number "148").
Asserted that Ext. A2 is invalid and that the plaintiff lacked locus standi to institute the suit.
Maintained that the document in favour of the first defendant (Ext. A3) was valid in respect of the property in question (a contention the court rejected).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
P. Rama Rao v. High Court of A.P., rep. by Registrar (Vigilance), 2000 (1) A.L.T. 210	Interpreted scope of Section 85 of the Wakf Act where Tribunals were not yet constituted; held civil courts continued jurisdiction until Tribunals were constituted, relying on absence of a statutory provision for transfer of pending cases.	The court noted this authority but found it not directly relevant to the present case; it recorded the principle that civil courts retained jurisdiction until Tribunals were constituted in that situation, but proceeded on the basis that Section 7(5) of the Act exempts existing suits and appeals from the Tribunal's exclusive jurisdiction.
Mulla, Principles of Mahomedan Law (Nineteenth Edition), p.195 — “214. Office of Mutawalli not transferable” (doctrinal/treatise authority)	States that the office of mutawalli is not transferable unless expressly conferred by the founder; a mutawalli may appoint a deputy but cannot transfer the office.	The court relied on this doctrinal authority to hold that Ext. A2—which purported to transfer mutawalliship—was invalid in law.
Moideen Bibi Ammal v. Rathnavelu Mudali, AIR 1927 Mad. 69 (Madras High Court)	Held that a de facto trustee of a mosque may collect rent and reimburse himself for collection expenses (recognition of de facto trustee rights).	The court cited this decision to support the proposition that a person acting as mutawalli (de facto) enjoys rights and duties akin to those of a formal mutawalli, strengthening the plaintiff's claim to sue for possession.
Syed Mustafa Peeran Sahib v. State Wakf Board (represented by its Secretary), AIR 1969 Mad. 66 (Madras High Court)	Addressed obligations of mutawalli, including interaction with the Wakf Board (e.g., payment of fees); illustrates duties and obligations of mutawallis.	The court used this decision to reinforce that a person acting as mutawalli cannot avoid statutory duties and that acting mutawallis carry rights and liabilities; this supported the conclusion that the plaintiff-committee, having acted as mutawalli, was entitled to sue.

Court's Reasoning and Analysis

The court structured its reasoning in two interrelated strands: (A) jurisdiction/competence to decide wakf questions in this Second Appeal; and (B) substantive entitlement of the plaintiff to sue and the validity of Ext. A2.

(A) Jurisdiction / Competence under the Wakf Act

The court examined Section 85 of the Wakf Act (1995), which provides that no suit or legal proceeding shall lie in any civil court in respect of disputes required by the Act to be determined by a Tribunal. Counsel relied on Section 7(1) (which directs that the question whether a property is wakf property is to be decided by a Tribunal) to argue that civil courts are barred.
The court held that the coming into force of the Wakf Act, 1995 did not prevent the High Court from considering whether the judgment under appeal was correct. It emphasized that Section 7(5) of the Act exempts matters that are the subject of suits or proceedings already instituted in civil courts before commencement of the Act, or appeals from decrees passed before commencement, from the Tribunal's exclusive jurisdiction.
On that basis, the court concluded it was "perfectly competent" to decide the wakf-related question in this appeal. The court considered but treated as not directly relevant the Andhra Pradesh decision (P. Rama Rao) that dealt with the practical problem of non-constitution of Tribunals.

(B) Substantive Analysis — Validity of Ext. A2 and Plaintiff's Right to Sue

The court accepted the Appellate Court's conclusion that Ext. A2 purported to transfer the office of mutawalli to the plaintiff society and that such transfer is not valid in law. The court relied on the doctrinal statement in Mulla that the office of mutawalli is not transferable unless expressly permitted by the founder; a mutawalli may only appoint a deputy.
Having held Ext. A2 invalid as effecting a transfer of the mutawalliship, the court then considered whether the plaintiff, having acted as mutawalli (de facto), nonetheless had the right to sue for recovery of possession.
The court accepted the appellant's submissions that: (i) the statutory definition of mutawalli in the Wakf Act, 1954 includes a person who acts as mutawalli; (ii) the Wakf Board's written statement indicated that the plaintiff-committee regularly submitted annual accounts and paid the required contributions; and (iii) authorities (Moideen Bibi Ammal and Syed Mustafa Peeran Sahib) recognize that de facto trustees or persons acting as mutawalli are entitled to exercise the rights and perform the duties of mutawallis.
On these bases, the court held that the plaintiff-committee was entitled to sue for recovery of possession despite the invalidity of Ext. A2 as a formal transfer of the mutawalliship. The court also rejected the second defendant's factual and legal contentions (including the claim of possession since 1948 — and a later reference in the opinion to "148" — and the validity of the document in favour of the first defendant), treating those matters as concurrent findings of the courts below which it did not accept in the second defendant's favour.
Accordingly, the court set aside the judgment of the lower Appellate Court and passed a decree entitling the plaintiff to recover possession of the plaint schedule property from the second defendant.
Finally, the court directed the State Wakf Board to exercise its power under Section 63 of the Act to appoint a mutawalli in place of the plaintiff (if appropriate) and clarified that the decree may be executed by the plaintiff or, if the plaintiff is removed, by another mutawalli appointed by the Wakf Board.

Holding and Implications

HOLDING: The Second Appeal was allowed. The court set aside the appellate court's judgment and passed a decree entitling the plaintiff (Jumayath Palli Dharas Committee) to recover possession of the plaint schedule property from the second defendant. The court further directed the State Wakf Board to exercise its power under Section 63 of the Act to appoint a mutawalli in place of the plaintiff if necessary. The appeal was allowed with no order as to costs and the cross-objection was dismissed.

Implications:

The direct practical effects are: (a) a decree in favour of the plaintiff for recovery of possession against the second defendant; (b) an order to the State Wakf Board to consider appointment of a mutawalli under Section 63; and (c) clarification that execution of the decree can be carried out either by the plaintiff or by a mutawalli subsequently appointed by the Wakf Board.
The court did not purport to lay down a broader novel principle overriding existing law; rather it applied established doctrinal material and precedent to the facts before it. The opinion does not state that a new binding precedent was created beyond the resolution of the present dispute.

This summary is limited strictly to the matters, findings and authorities explicitly set out in the provided opinion.

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Badagara Jumayath Palli Dharas Committee v. Ummerkutty Haji

Sankarasubban, J.:— This Second Appeal has been referred to a Division Bench by Krishnan Unni, J. when contention was raised that as per Sec. 85 of the Wakf Act, (hereinafter referred to as ‘the Act’) Civil Court is barred from considering any question in respect of any dispute, question or other matter relating to any wakf. The facts of the case are as follows:

2. The appeal arises out of O.S No. 91 of 1984 on the file of the Additional Sub Court, Badagara. Plaintiff in this case is Jumayath Palli Dharas Committee. The suit was filed for declaration of title over the plaint schedule property and recovery of possession on the strength of title and for an injunction restraining the second defendant from demolishing the existing building situated there. The Jumath Palli and Khabarsthan belonged to Peedikavilakath tarwad of which first defendant is the present karanavan. It has been dedicated in wakf with karanavan as its mutawalli. Five members of the said tarwad executed a registered agreement on 13-2-1973 whereby they authorised the plaintiff-committee to manage the wakf property. It appears, the first defendant executed another document, Ext. A3, on 2-5-1984 in favour of the second defendant relating to the property on the basis of which the second defendant's father was holding an oral entrustment from 1948. The plaintiff-committee has filed the suit for a declaration of title and for recovery of possession of the suit property from the second defendant. The first defendant filed a written statement supporting the plaintiff. The second defendant filed a written statement contending that his father was in possession of the property from 1948. He further contended that the plaintiff has no locus standi to file the suit as such. The document, Ext. A2 is invalid. The property covered by Ext. A3 is the wakf property. The trial court raised seven issues. Issues 1 to 3 were (1) whether the suit was maintainable? (2) whether the plaintiff - committee has any right or title over the plaint schedule property? (3) whether the allegation of attempted demolition of the building is correct and true? The trial court held that the suit was maintainable and on the basis of Ext. A2, the plaintiff has got right to file suit. On other issues, it found that the property covered by Ext. A3 includes the plaint schedule property and it forms part of wakf property and that the first defendant had no right to execute document. The case of entrustment was found against. Hence the suit was decreed by the tral court.

3. Against that an appeal was filed before the District Court. The District Court took the view that so far as the office of mutawalli is concerned, it cannot be transferred. Hence, it held that under Ext. A2, the mutawalliship cannot be transferred. Further it also took the view that the property cannot be transferred. So far as the question of validity of the document in favour of the second defendant is concerned, it found that it was not valid and had no right over the property. It also found that the property given under Ext. A3 forms part of wakf property. Thus, as a matter of fact, the Appellate Court found that the 1st defendant though was in possession of the plaint schedule property, has no right over the same. But at the same time, did not give any relief to the plaintiff on the ground that the plaintiff has no title over the plaint schedule property. Hence, the District Court disposed of the appeal as follows: “Hence, this appeal is allowed and the decree and judgment passed by the lower court are set aside and the suit is dismissed. But, the dismissal of the suit will not affect the right of the de jure mutawalli in respect of the wakf property which takes in the plaint schedule property also to institute appropriate proceedings in appropriate forum regarding the plaint schedule property”. It is against the above judgment and decree that the Second Appeal is filed.

4. A cross objection has been filed by the respondent. In the memorandum of Second Appeal, five substantial questions of law raised. The first question that was referred to was whether the appeal can be considered by the civil court in the light of the provisions of the amendment in the Wakf Act. According to us, the following substantial questions of law arise for consideration: (1) Whether this court is competent to decide the question of wakf in view of Sec. 85 of the Wakf Act, 19957 (2) Whether the right of mutawalli is transferable? (3) Was the court below correct in holding that the plaintiff was not legally entitled to file the suit?

5. The main question that arises for consideration is whether the advent of Sec. 85 of the Act, whether an appeal in which question regarding wakf arises can be decided by this court. Learned counsel for the appellant brought to our notice Sec. 85 of the Act, which says that no suit or legal proceedings shall lie in any civil court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal. Learned counsel brought to our notice Sec. 7(1) of the Act which says that question whether a particular property is wakf property is a question which is directed to be decided by the Tribunal under Sec. 7(1) of the Act. Hence, counsel contends that there is bar for the civil courts to decide the question regarding wakf. After the commencement of the Act, the question regarding wakf is to be decided by Special Tribunal to be constituted. So far as the present case is concerned, the question whether the plaint schedule property forms part of the property should be decided by the trial court as well as by the First Appellate Court and in Second Appeal by this court only considers whether the judgment and decree passed by the court is correct or not. According to us, the coming into force of the Wakf Act, 1995 does not in any way prevent this court from considering the question whether the judgment in appeal is correct or not in spite of the fact that the question to be decided is whether the plaint schedule property is wakf property or not. Further, we find that Sec. 7(5) of the Act merely says that 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 Sec. 6, before the commencement of this Act or which is the subject matter of any appeal from the decree passed before such commencement. Sec. 7(5) of the Act clearly exempts appeal from the bar of jurisdiction. Hence, we are of the view that this court is perfectly competent to decide the question regarding wakf in this appeal.

6. The scope of Sec. 85 came up for interpretation before the Andhra Pradesh High Court in the decision reported in P. Rama Rao v. High Court of A.P, rep. by Registrar (Vigilance), 2000 (1) A.L.T 210. Of course, that decision is not relevant for the purpose of this case. That decision considered the problem arose from non-constitution of the Tribunals immediately after Sec. 85 of the Act came into force. The court held that civil courts continued its jurisdiction till the Tribunals are constituted. In the course of decision, their Lordships relied upon the fact that there was no provision in the Act to transfer the pending cases to the Wakf Tribunal. This was taken as a justification for coming to the conclusion that till Tribunals are constituted, civil courts have jurisdiction.

7. The next question is whether Ext. A2 transfer is valid. Ext. A2 is an agreement executed by some members of the tarwad. As per that agreement, mutawalliship was transferred to the plaintiff society and it is stated that from the date of agreement onwards, the Secretary of the society can manage the wakf created. The Appellate Court has held that the transfer of mutawalliship is not valid. We agree with that view.

8. In Mulla's Principles of Mahomedan Law, Nineteenth Edition at page 195 under the heading “214. Office of Mutawalli not transferable”, it is stated as follows: “A mutawalli has no power to transfer the office to another, unless such a power is expressly conferred upon him by the founder. But he may appoint a deputy to assist him in management of the endowed property”. Thus, as per the law, there cannot be any transfer of mutawalliship. Hence, in the eye of law, Ext. A2 is invalid. Learned counsel for the appellant then submitted that even if Ext. A2 is invalid, since the plaintiff was acting as mutawalli, the plaintiff is entitled to recover possession. Learned counsel brought to our notice the definition of mutawalli under the Wakf Act, 1954, which shows that it includes a person, who acts as mutawalli. Further, he brought to our notice the written statement filed by the Secretary, Wakf Board, wherein it has been stated that the plaintiff-committee was very regular in submitting annual statement of accounts to the Wakf Board and in payment of annual contribution to the Board as per the provisions of the Act. Learned counsel also brought to our notice the decisions of the Madras High Court reported in Moideen Bibi Ammal v. Rathnavelu Mudali, AIR 1927 Mad. 69 and Syed Mustafa Peeran Sahib v. State Wakf Board, represented by its Secretary, Madras, AIR 1969 Mad. 66. In Moideen Bibi Ammal v. Rathnavelu Mudali, AIR 1927 Mad. 69, it was held that the de facto trustee of a mosque can collect rent and reimburse himself for the expenses of the collection out of the rent collected. So also in the decision in Syed Mustafa Peeran Sahib v. State Wakf Board, represented by its Secretary, Madras, AIR 1969 Mad. 66, it was held that the mutawalli cannot refuse to pay fees to the Wakf Board. These decisions make it clear that a person acting as mutawalli is entitled to the rights and duties of the mutawalli. Hence, according to us, the plaintiff-Committee is entitled to sue for recovery of possession.

9. Under Ext. A2, there is no transfer of property. What is transferred is only the management of wakf property. So far as cross objection is concerned, we cannot accept the contention of the second defendant that the document created in favour of the first defendant is valid. The case set up that the father was in possession from 148 cannot also be accepted. These are concurrent findings by the courts. So also we agree with the court below that the property conveyed to the appellant included the wakf property, Ext. A2. In the above view of the matter, we set aside the judgment of the lower Appellate Court and pass a decree entitling the plaintiff to recover possession of the plaint schedule property from the second defendant. We further direct the State Wakf Board to exercise its power under Sec. 63 of the Act and to appoint a mutawalli in the place of the plaintiff. We make it clear that the decree that is granted to the plaintiff can be executed either by the plaintiff or if the plaintiff is removed, by another mutawalli appointed by the Wakf Board, by the mutawalli so appointed.

10. Appeal is allowed. No costs. Cross objection is dismissed.

Badagara Jumayath Palli Dharas Committee v. Ummerkutty Haji

Structured Summary of the Court Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff / Appellant (Jumayath Palli Dharas Committee)

Second Defendant (Respondent / Cross-objection)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Badagara Jumayath Palli Dharas Committee v. Ummerkutty Haji

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