Ahale Sunnathwal Jamath Jogi Madam vs Haji Syed Irfan Hussain Sahib (Died)

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 29.09.2023 PRONOUNCED ON : 14.12.2023

CORAM:

THE HON'BLE MR. JUSTICE V.LAKSHMINARAYANAN

C.R.P.(NPD).No.964 of 2016

Ahale Sunnathwal Jamath Jogi Madam Majid and Durga Gudiyattam Represented by its duly appointed Muthavalli, S.A.Rahim … Petitioner

(Petitioner substituted vide Court order dated 25.10.2021 made in C.M.P.No.11671 of 2021 in C.R.P.No.964 of 2016)

Vs.

Haji Syed Irfan Hussain Sahib (died)

1.Haji Syed Mohamed Hussain Sahib

2.Haji Syed Ghalib Hussain Sahib

3.Haji Syed Subarul Gani

4.Haji Syed Sahid Ahmed

5.Haji Syed Khallid Ahmed

6.S.N.Rafeeq

7.M.Selvam (died)

(R7 died – Amended as per the order of this Court dated 01.02.2021 https://www.mhc.tn.gov.in/judis

1/119 C.R.P.(NPD).No.964 of 2016

made in C.M.P.Nos.5392 and 5393/2016 in C.R.P.No.964 of 2016 vide memo dated 11.01.2021 in SR.No.1350) 8.The Tamil Nadu Wakf Board, Represented by its Chief Executive Officer, No.1, Jaffar Syrang Street, Vallal Seethakathi Nagar, (Custom House Backside), Chennai – 600 001.

9.The State of Tamil Nadu, Represented by its District Collector, Vellore District, Vellore.

10.The Tahsildar, Gudiyattam.

11.The Commissioner, Gudiyattam Municipality.

12.The Superintendent of Police, Vellore District, Vellore-9.

13.The Inspector of Police, Town Police Station, Gudiyattam.

14.Sharbunnisa

15.Syed Nowman

16.Shaheeda Begam

17.Tameemunnisa

18.Sameena

19.K.V.S.Dinakaravasan https://www.mhc.tn.gov.in/judis

2/119 C.R.P.(NPD).No.964 of 2016

20.Vasantha

21.Nandakumar

22.Vanitha

23.Sedhuraman ...Respondents

(R-20 to R-23 were brought on record as LRs of the deceased R-7 vide Court dated 22.11.2021 made in C.M.P.Nos.18247, 18252 and 18255 of 2021) Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the judgment and decree dated 17.02.2016 passed by the Hon'ble Wakf Board Tribunal/Subordinate Judge, Vellore, Vellore District in O.S.No.220 of 2008 and consequently allow the aforesaid O.S.No.220 of 2008.

For Petitioner : Mr.P.V.Balasubramaniam, Senior Counsel, for Mr.K.M.Aasim Shehzad

For Respondents : Mr.N.Manokaran for R-1, R-3 to R-6, R-14 to R-18 & R-20 to R-23

Mr.S.Vijayakumar for R-2

Mr.Mohammed Fayaz Ali for R-8

Mr.B.Tamil Nidhi Additional Government Pleader (CS) for R-9 to R-13

Mr.P.A.Sudesh Kumar for R-19

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3/119 C.R.P.(NPD).No.964 of 2016

R-7 (Died) Steps taken

ORDER

This Civil Revision Petition arises against the judgment and decree

of the Wakf Board Tribunal cum Subordinate Judge at Vellore in O.S.

No.220 of 2008 dated 17.02.2016.

S.No. Sub Headings Paragraph Nos. 1. Plaint 4 to 9

2. Written Statement filed by the eighth 10 to 11 defendant

3. Written statement filed by the 9th 12 defendant

4. Gist of the written statement filed by the 13 20th defendant

5. Judgment of the Trial Court 14 to 17

6. Submissions 21 to 28

7. Scope of Revision under Section 83(9) of 29 to 33 the Waqf Act, 1995

8. Scheme of Waqf Act 34 to 49

9. Whether notice is necessary under Section 50 to 56 89 of the Waqf Act, 1995

10. Whether the documents dated 16.10.1946 57 to 63 and 07.07.1931 have a bearing on the title of the suit property

11. Whether a suit can only be filed by the 64 to 74 Wakf Board https://www.mhc.tn.gov.in/judis

4/119 C.R.P.(NPD).No.964 of 2016

12. Whether the plaintiff Ahale Sunnathwal 75 to 80 Jamath Jogi Madam Masjid and Durga Gudiyattam is different from Jogi Madam Masjid and Durga

13. Lack of pleadings 81 to 90

14. Previous litigations with respect to the 91 suit schedule property 15. Filing of O.S.No.1355 of 1969 and 92 to 98 O.S.No.362 of 1970

16. Is misdescription of parties fatal? 99 to 104

17. Source of title of the eighth defendant 105 to 123

18. Oral Evidence of P.W.1 and P.W.2 and its 124 to 127 effect

19. Does the non-payment of contribution to 128 to 131 the Wakf Board efface the Wakf and its properties?

20. Whether the sale of the suit property is 132 valid

21. Whether the suit is barred by time 133 to 137

21. Is Order 9 Rule 9 CPC a bar to the 138 to 143 present suit?

22. Conclusion 144 to 146

2. O.S.No.220 of 2008 was filed by one Ahale Sunnathwal Jamath

Jogi Madam Masjid and Durga (hereinafter referred to as 'Jogi Madam

Masjid) for the following reliefs:

“a) Declare that the suit property is the Wakf property of the Plaintiff's Mosque and Durga under the control and management of the Tamil Nadu Wakf Board, and for consequential permanent injunction, restraining https://www.mhc.tn.gov.in/judis

5/119 C.R.P.(NPD).No.964 of 2016

the 8th Defendant, his men, agents, servants and unlawful followers from in any manner interfering with the Plaintiff''s peaceful possession and enjoyment of the suit property,

b) Declare that the registered sale deed dt.

09.06.2008, Doc.No.4497/2008, on the file of the Sub Registrar, Gudiyattam, executed by the Defendants 1 to 6 through their Power Agent 7th Defendant in favour of the 8th Defendant is illegal, null and void and ab-initio,

c) Grant an order of permanent injunction restraining the 11th Defendant from effecting name transfer in the revenue records in respect of the suit property,

d) Grant an order of permanent injunction, restraining the 12th Defendant from effecting name transfer in the municipal records in respect of the suit property,

e) Grant an order of permanent injunction against the 13th and 14th Defendants restraining them from in any manner providing illegal protection to the 8th Defendant to take illegal and forcible possession of the suit property from the Plaintiff's Mosque and Durga,

f) Grant an order of permanent injunction against 8th Defendant, his men, agents and servants restraining them from alienating the suit property to any third parties and

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g) award the cost of the suit to the Plaintiff.”

3. For the sake of convenience, the parties are referred to as their

ranks in the suit.

Plaint:

4. The claim of the plaintiff was that the suit property is a Wakf

property, which had been endowed in favour of the plaintiff Mosque and

Durga. The purpose of the grant was for construction of a Makkan, for

keeping the lights in the Mosque and Durga and for offering prayers in

the Mosque and rendering connected services. According to the plaintiff,

the property has been managed by the ancestors of Haji Katheef Syed

Hussain Sahib. The said Haji Katheef Syed Hussain Sahib was managing

the properties. In and about 07.07.1931, by virtue of an agreement

between Syed Abbas Hussain Sahib and five others, they started

managing the same. The right to manage the property was divided

amongst themselves in and about 1938.

5. Haji Katheef Syed Hussain Sahib retired from the office and

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appointed his six sons, namely,

1) Syed Abbas Hussain Sahib,

2) Syed Javvad Hussain Sahib,

3) Syed Nazeer Hussain Sahib,

4) Syed Zahid Hussain Sahib,

5) Syed Siddique Hussain Sahib and

6) Syed Ahamed Hussain Sahib

to take over the Management. Haji Katheef Syed Hussain Sahib

executed a deed dated 16.10.1946 in favour of his sons, calling upon

them to maintain and manage the suit properties. The sons were

maintaining and managing the properties and were serving the Mosque

and Durga.

6. In 1959, the then Government of Madras surveyed the properties

and after a receipt of report from the then Madras State Wakf Board,

notified the same. The notification was published by the Government of

Madras on 11.02.1959. The suit property was amongst the list of

properties denoting that they belong to the plaintiff Mosque and Durga.

The said notification was not challenged and it has become final and

conclusive.

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7. The properties being the properties of the Mosque and Durga, it

was under the control and supervision of the Tamil Nadu Wakf Board, the

9th defendant.

8. By orders of the Wakf Board dated 21.03.2006 and 13.10.2008,

S.A.Rahim and ten others were appointed as members of a committee to

manage the Wakf. The cause of action for the suit is that the defendants

1 to 6, who are the descendants of Haji Katheef Syed Hussain Sahib,

executed a power of attorney for the suit schedule mentioned property on

14.08.2006. The power of attorney was executed in favour of the

seventh defendant. The seventh defendant attempted to alienate the

property to the eighth defendant by way of a sale deed. Immediately, the

plaintiff brought this factum to the notice of the 9th defendant, who in

turn objected to the registration of any properties belonging to Jogi

Madam Mosque and Durga to the Sub Registrar, Gudiyattam. The Sub

Registrar acting upon the representation of the 9th defendant refused to

register the documents. Therefore, the defendants 1 to 6 through their

power agent, the seventh defendant, filed W.P.No.43631 of 2006 on the

file of this Court. On 25.04.2008, the said Writ Petition was allowed https://www.mhc.tn.gov.in/judis

9/119 C.R.P.(NPD).No.964 of 2016

directing the Sub Registrar, Gudiyattam to register the document. It was

however left open in the said Writ Petition that if the parties contest the

same as a Wakf property, then, it should be agitated in a manner known

to law.

9. On the strength of the orders obtained from this Court in the

Writ Petition, the seventh defendant, acting as the power of attorney for

the defendants 1 to 6 sold the property to the eighth defendant on

09.06.2008. The said document was received and registered in

Document No.4497/2008. Immediately, the plaintiff brought this factum

to the notice of the 9th defendant and requested the Wakf Board to protect

the property. In the mean time on 29.08.2008, the eighth defendant

gathered his men and mobilised police force to take possession of the

property. Despite the efforts of the plaintiff, since the eighth defendant

was a powerful person in the locality, he was able to use the services of

the Police and Revenue Department and attempted to take possession of

the property. According to the plaintiff, the property being a Wakf

property, the sale deed dated 09.06.2008 is null and void. The defendants

1 to 6 did not have title to the property as it was a Wakf property and

therefore, the purchase does not convey any title to the eighth defendant. https://www.mhc.tn.gov.in/judis

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Since the document had intervened, the plaintiff had sought for the

aforesaid reliefs.

Written Statement filed by the eighth defendant:

10. The gist of the written statement filed by the eighth defendant

is that the property was never a Wakf property. It was the separate

property of Haji Katheef Syed Hussain Sahib. On 16.10.1946, he had

created a Trust in favour of his sons. In the said deed, he observed

“k#jp nrhj;Jf;fis vg;gb ghJfhj;J te;jHP fNsh mJ NghyNt bu];l; nrhj;Jf;fisAk; ghJfhj;Jtu Ntz;baJ.”

11. For a Wakf to be created, it should be a property of the

almighty and the law does not prevent a Trust property being created by a

Muslim. It was denied that the sons of Haji Katheef Syed Hussain Sahib

ever maintained the property for the service of the Mosque and Durga. It

was further denied that the Wakf Board took control of the property and

that it is a self-serving statement. In other words, the entire proceedings

under Section 4 and 6 of the Wakf Act of 1954 was denied. It was

alleged that only Survey No.701/1, over which the Jogi Madam Mosque

is situated and Survey No.42, Nellore Pet, Pernambut Road, Gudiyattam

was alone notified as Wakf properties. It was further stated that the suit https://www.mhc.tn.gov.in/judis

11/119 C.R.P.(NPD).No.964 of 2016

property was never published in the gazette and that the Chief Executive

Officer had (without date) furnished a list as if the suit property is

included as a Wakf property. They further stated that as soon as the sale

was made in favour of the eighth defendant, he took possession and had

laid roads and plots inside the suit land. The right of Muthavalli to

present the suit was also denied and that it is only the Chief Executive

Officer, who can file the suit.

Written statement filed by the 9th defendant:

12. The plaint has been filed only after consultation and

confirmation by the Wakf Board. The Wakf Board had appointed Abdul

Rasheed as the Muthavalli of the Mosque and the Durga. Apart from

Abdul Rasheed, there were ten other members, who were appointed as

members of the Advisory Committee. The Board had even at the time of

appointment given them ample powers to protect Durga and its properties

and to initiate action against any person, who is acting against the

interest and welfare of the institution. It further pleaded that the

properties are Wakf properties and pursuant to the notification dated

11.02.1959 and proforma, the Wakf Board had registered the property in

its register. The defendants 1 to 6 and their ancestors do not have any https://www.mhc.tn.gov.in/judis

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individual right over the suit property. The sale by defendants 1 to 6

through their power agent, the seventh defendant, to the eighth defendant

is illegal and void ab initio, as it had been alienated without the approval

of the Wakf Board. The Board had been taking continuous steps to

safeguard the suit property and the suit had been filed only with the

previous sanction and approval of the 9th defendant. Finally, the Wakf

Board stated that it has no objection for the grant of reliefs sought for by

the plaintiff.

Gist of the written statement filed by the 20th defendant:

13. The 20th defendant pleaded that the suit schedule property

originally belonged to K.S.Masood Ahmed Sahib, son of Haji Syed

Nattar Hussain Sahib. The properties are all ancestral properties of the

said Haji Syed Nattar Hussain Sahib. For valid consideration of

Rs.20,00,000/-, the property was sold under a registered document dated

25.08.2008 and he had taken possession of the property. The documents

having been registered, they are notice in rem and therefore, the plaintiff

is deemed to have notice of the same. The gazette dated 11.02.1959 does

not cover any of the properties, which were covered under the document

dated 16.10.1946. Only Survey No.701/1 over which the Jogi Madam https://www.mhc.tn.gov.in/judis

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Mosque is situated, is a Wakf property. The documents relied upon by

the plaintiff have been created for the purpose of the case. The properties

being the absolute properties of his vendor, no one has a right over the

same including the defendants 1 to 8. There is no cause of action for the

suit and the alleged cause of action is a myth. The suit is barred by

limitation and in any event, the suit has not been properly valued.

Judgment of the Trial Court:

14. On these pleadings, the Court had framed the following issues:

“1.Whether plaintiff entitled to the decree for declaration to declare the suit property is the wakf property and consequential relief of injunction against the 8th defendant from interfering with the peaceful possession and enjoyment of the plaintiff's suit property?

2. Whether the plaintiff entitled to the decree to declare the registered sale deed dated 09.06.2008 as document No.4497/2008 executed by the defendants 1 to 6 through their power agent, 7th defendant in favour of the 8th defendant is illegal, null and void?

3. Whether plaintiff entitled to the decree for permanent injunction restraining the 11th defendant from effecting name transfer in the revenue records in respect of the suit property?

4. Whether the plaintiff entitled to the decree for https://www.mhc.tn.gov.in/judis

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permanent injunction restraining the 12th defendant from effecting name transfer in the Municipal records in respect of the suit property?

5. Whether plaintiff is entitled to the decree for permanent injunction against the 13th and 14th defendants restraining them from providing illegal protection to the 8th defendant to take illegal and forcible possession of the suit property?

6. Whether the plaintiff entitled to the decree for permanent injunction against the 8th defendant from alienating the suit properties to 3rd parties?

7. To what relief and cost?”

15. After the suit had been taken on file, the defendants 1 to 8 filed

I.A.No.208 of 2009 for rejection of the plaint. The Trial Court received a

counter and after hearing both sides, had allowed the application. The

plaint was rejected on 09.03.2010. Since a regular appeal is barred under

the provisions of Waqf Act under Section 83(9), a revision was presented

to the High Court. After hearing both sides, the revision was allowed and

the matter was remanded to the Trial Court for fresh disposal. While

doing so, the High Court held that it is the duty of the plaintiff to

establish before the Trial Court that the suit property was included in the

gazette notification under Section 5(2) of the Wakf Act of 1954. The https://www.mhc.tn.gov.in/judis

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order of the High Court is reported in 2010 (2) MWN (Civil) 655.

16. Against the said order, a Special Leave Petition was preferred

by the eighth defendant. It was taken on file in S.L.P(Civil)No.26058 of

2010. By an order dated 12.07.2013, the Special Leave Petition was

dismissed. However, it set aside the order of the High Court remanding

the application filed for rejection of plaint and dismissed the petition

filed under Order 7 Rule 11 CPC. It held that since disputed issues are

involved, the matter requires full trial. It further held that it is the duty of

the Wakf Tribunal to decide whether the property is a Wakf property or

not especially in the light of the gazette notification published on

11.02.1959. On this basis, the Trial Court framed an additional issue,

whether the dispute regarding the character of the property is a Wakf

property or not and whether the suit is barred by limitation.

17. Before the Trial Court, the plaintiff examined

H.Rahamathullakhan as P.W.1 and the Superintendent of Wakfs was

examined as P.W.2. On behalf of the defendants 2 to 8 and 15 to 19, the

eighth defendant M.Selvam entered the witness box as D.W.1. On behalf

of the 9th defendant, one Mohammed Imran was examined as D.W.2. On https://www.mhc.tn.gov.in/judis

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behalf of the 20th defendant, one K.V.S.Dhinakaravasan examined

himself as D.W.3. The plaintiff marked Ex.A1 to A72. The defendants 2

to 8 and 16 to 19 filed Ex.B1 to B7 and B18. The 9th defendant filed

Ex.B8 to B14 and the 20th defendant filed Ex.B15 to B17. The Trial

Court on the basis of the aforesaid evidence held as follows:

1) The name of the plaintiff is Ahale Sunnathwal Jamath Jogi

Madam Masjid and Durga, Gudiyattam and this does not tally with the

name of the registered Wakf, namely, Jogi Madam Masjid and Durga.

2) The plaintiff is an unregistered Wakf and therefore, it cannot

maintain the suit.

3) The plaintiff has not established that the property is a Wakf

property as per Sections 4, 6, 32 and 40 of the Wakf Act. The procedure

as required under Section 4 to 6 or 27 of the Act has not been followed.

18. Aggrieved by the said judgment and decree, the present Civil

Revision Petition has been filed before this Court.

19. I heard Mr.P.V.Balasubramaniam, learned Senior Counsel

appearing for Mr.K.M.Aasim Shehzad, Mr.N.Manokaran, learned

counsel for the respondents 1, 3 to 6, 14 to 18 and 20 to 23,

Mr.S.Vijayakumar, learned counsel for the second respondent, https://www.mhc.tn.gov.in/judis

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Mr.Mohammed Fayaz Ali, learned counsel for the eighth respondent,

Mr.B.Tamil Nidhi, learned Additional Government Pleader (CS)

appearing for the respondents 9 to 13 and Mr.P.A.Sudesh Kumar, learned

counsel for the 19th respondent.

20. Before I commence the judgment, I notice that the judgment of

the Trial Court runs into closely typewritten 136 pages. However, on

close perusal of the same, it shows that Page No.2 to Page No.8 is the

extract of the plaint. Page No.8 to Page No.16 is the summary of the

written statement. After framing of the issues, from Page No.18 to Page

No.46, the written arguments filed by the plaintiff had been extracted in

extenso. Similarly, from Page No.46 to Page No.63 is the written

argument of the defendants 2 to 8 and 15 to 19. From Page No.65 to

Page No.70 is the written argument of the 20th defendant. Thereafter, the

evidence of P.W.2 had been extracted in full from Page No.70 to Page

No.75. The evidence of P.W.1 has been extracted from Page No.75 to

Page No.80. Thereafter, the learned Judge has extracted the provisions

relating to the Wakf Act from Page No.86 to Page No.91 and again from

Page No.92 to Page No.96. Curiously enough, he has followed the same

pattern by extracting the evidence of D.W.1 from Page No.99 to Page https://www.mhc.tn.gov.in/judis

18/119 C.R.P.(NPD).No.964 of 2016

No.114 and has extracted the evidence of D.W.3 from Page No.115 to

Page No.129. This extract of the pleadings, Sections and evidences itself

has made the judgment verbose. The discussion part of the judgment is

hardly a few paragraphs. Such a verbose judgment has made the task of

this Court extremely difficult. Trial Courts are requested to give a short

summary of pleadings and extract of evidences oral or documentary that

are necessary for the disposal of the case. Otherwise, it makes the

judgment unwieldy and does not augur well.

Submissions:

21. The learned counsel for the petitioner would argue as follows:

1) The plaintiff is Ahale Sunnathwal Jamath Jogi Madam Masjid

and Durga and the fact that the name 'Ahale Sunnathwal Jamath' had

been given a prefix in the suit does not make it a separate Wakf.

2) That the Government of Tamil Nadu had conducted a survey of

the Wakf through its Commissioner of Surveys and it subsequently

notified the same in the gazette.

3) The family of Kazi Syed Hussain Sahib and his sons, had

always treated the suit property as that belonging to the Wakf and had not

treated it as their separate property.

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4) The perusal of the documents filed by the plaintiff would show

that Survey No.669/2, i.e., the suit schedule mentioned property, is a

Wakf property.

5) The document of Trust that was relied upon by the plaintiff was

only to show that there was a rotation of Muthavalli.

6) The Trial Court had not answered the specific issues that had

been directed to be framed by the Supreme Court as regards the character

of the property.

22. Mr.Mohammed Fayaz Ali, learned counsel appearing for the

Tamil Nadu Wakf Board would adopt these arguments. In addition, he

would submit that the Survey Commissioner has specifically found that

the properties, which were subject matter of the suit, were Wakf

properties and no suit having been filed by the then Muthavalli or his

legal representatives within a period of one year, the notification has

become final and it is binding on the parties.

23. Mr.N.Manokaran, learned counsel appearing for the contesting

respondents would submit that these are not Wakf properties at all, but

they are separate properties of the family members of Haji Katheef Syed https://www.mhc.tn.gov.in/judis

20/119 C.R.P.(NPD).No.964 of 2016

Hussain Sahib. He would argue that there was no divestation of title in

favour of the almighty and that there was no restriction on alienation and

therefore, the property had rightly been alienated by the defendants 1 to 6

in favour of the eighth defendant through their power of attorney, seventh

defendant.

24. Drawing my attention to Ex.A1, the Trust deed,

Mr.N.Manokaran would argue from paragraph No.3 that the properties

had not been dedicated in favour of Wakf. Apart from that, referring to

Ex.A47, which is equivalent to Ex.B2, he would state that the title to the

property vested with his clients by virtue of a judgment and decree in

S.A.No.1198 of 1951 dated 26.09.1955. To substantiate the same, he

produced the certified copies of the judgment and decree in A.S.No.29 of

1950 on the file of the learned Subordinate Judge at Vellore (originally

presented as A.S.No.305 of 1949 on the file of the District Court at

Vellore) and that of S.A.No.1198 of 1951 to argue that the properties

were exclusive properties of Haji Katheef Syed Hussain Sahib and

therefore, the alienation was proper.

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25. He would further state that there is a selective challenge by the

plaintiff because by a document dated 22.06.1988 under Ex.A53, the

defendants 1 to 6 had sold the property to one Kishore Kumar and under

Ex.B14, the defendants 1 to 6 had sold the property to the 20th defendant.

He would state that these documents have not been challenged in the suit.

Apart from that, he would point out that no notice had been issued under

Section 89 of the Wakf Act and therefore, the suit is liable to be rejected.

He would question the authenticity of the proforma and would point out

that two suits namely O.S.No.261 of 2008 and the suit filed under

Ex.A46 in O.S.No.145 of 2005 had been dismissed for default and not

restored. He would pray that this Court sitting in revision should not

re-appreciate evidence and therefore, would seek for dismissal of the

revision.

26. He would then draw my attention to Ex.A2, the proforma and

would state that it was preferred only in the year 2005 and therefore, that

not having been preceded by a survey; Section 4, 5 and 6 of the Wakf Act

had not been followed and consequently, the Wakf does not have title.

He would further argue that the suit is barred by time.

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27. He would draw my attention to Ex.A11, the settlement

proceedings to state that patta was granted under Section 13(1) of Tamil

Nadu Act 30 of 1963 in favour of the claimants and therefore, it is not an

inam estate. He had argued that patta having been granted under the

inam proceedings to the defendants, the suit has to be dismissed.

28. Before I deal with other issues, I have to state that I have gone

through the documents that have been filed by the defendants. They are

totally 18 in number. There is no document to show that settlement

proceedings under the Inam Abolition Act had taken place and patta had

been granted to the defendants or their predecessors in title. When the

very document has not been filed before me, I am unable to accept the

argument that inam patta had been granted and therefore, the suit has to

be dismissed. I have to take note of the fact that the eighth defendant had

pleaded title by virtue of the compromise deed in the Second Appeal.

The defendants not having filed the inam patta before the Court, I am

constrained to reject this argument of Mr.N.Manokaran.

Scope of Revision under Section 83(9) of the Waqf Act, 1995:

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29. Mr.N.Manokaran appearing for the contesting respondents

would argue that this Court should not interfere with the order of the

Trial Court, since it is only sitting on revision in exercise of the powers

under Article 227 of the Constitution of India.

30. Prior to entering into the merits of the discussion, I would

necessarily have to deal with an objection that has been raised by

Mr.N.Manokaran regarding the powers of this Court while dealing with a

statutory revision. It is necessary to look into the Waqf Act of 1995 to

deal with the scope of revision. Section 83(9) of the Waqf Act reads as

follows:

“(9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal:

Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit. ”

A careful perusal of the provision shows that no appeal lies from any https://www.mhc.tn.gov.in/judis

24/119 C.R.P.(NPD).No.964 of 2016

decision taken by the Wakf Tribunal. However, the proviso appended to

Section 83(9) enables the High Court to examine the records relating to

any dispute which has been determined by the Tribunal for the purpose of

satisfying itself as to the correctness, legality or propriety of such

determination. On such determination, the High Court is given the

power either to confirm, reverse or modify the verdict of the Waqf

Tribunal. A reading of this provision shows that while the power is not

that of an Appellate Court, it is not as restricted as the one under Section

115 of the Code of Civil Procedure, 1908. In the present case, the

revision has been presented under Article 227 of the Constitution of

India, Therefore, the restricted interpretation that Mr.N.Manokaran

wants to give to the power under Section 83(9) does not appeal to me.

31. It is relevant to point out that a Constitution Bench of the

Supreme Court dealt with the scope of revision in the case of Hindustan

Petroleum Corporation Ltd. vs Dilbahar Singh reported in (2014) 9

SCC 78. The Supreme Court held as follows:

“43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, https://www.mhc.tn.gov.in/judis

25/119 C.R.P.(NPD).No.964 of 2016

its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers

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26/119 C.R.P.(NPD).No.964 of 2016

from procedural illegality or irregularity.

32. In the light of the Constitution Bench judgment, I am entitled

to find out the following:

1. Whether the findings of fact recorded by the Tribunal is according

to law and does not suffer from any error of law?

2. Whether the findings of the Tribunal is perverse or has been

arrived at without consideration of material evidence or if such

finding is based on misreading of evidence or is grossly erroneous

when if allowed to stand, it will result in miscarriage of justice?

The High Court is entitled to satisfy itself as to the correctness or legality

or propriety of any decision or order that is impugned before it in the

light of the aforesaid tests and finally, while doing so, the High Court

should not re-appreciate or re-assess evidence for coming to a different

finding on facts. I am also entitled to see whether the decision of the

Tribunal which is impugned before me suffers from procedural illegality

or irregularity. This view of the Constitution Bench on the scope of

revision under Article 227 r/w Section 83(9) proviso has been interpreted

and laid down in the case of Kiran Devi Vs. Bihar State Sunni Wakf

Board and others reported in (2021) 15 SCC 15. Therefore, the power

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27/119 C.R.P.(NPD).No.964 of 2016

exercised by the High Court in this revision is less than the Appellate

Court, but wider than that of a revision under Section 115 of the Code of

Civil Procedure. Above all, I also have to remind myself that the only

remedy available for a party, who is aggrieved by a decision of the

Tribunal, is by way of a revision to the High Court.

33. As to what is a perverse finding is no longer res integra. It was

a subject matter of interpretation in S.R.Tewari Vs. Union of India and

another, (2013) 6 SCC 602 in paragraph No.30. The Court was pleased

to give life to this legal term. It held that a finding is said to be

“perverse”, if the findings have been arrived at by ignoring or excluding

relevant materials or by taking into consideration irrelevant or

inadmissible material. If the finding is “against the weight of evidence”

or if the finding so outrageously defies logic as to suffer from the vice of

irrationality, then such a finding can be termed as “perverse”. Similarly,

if a decision is arrived at on the basis of no evidence or thoroughly

unreliable evidence and no reasonable person would act upon it, the

order would suffer from the vice of perverseness. Being satisfied with

this Court's jurisdiction and its contours, let me now embark on the

merits.

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28/119 C.R.P.(NPD).No.964 of 2016

Scheme of Waqf Act:

34. Before embarking on discussion on the facts of the case, it is

necessary to understand the scheme of the Wakf Act of 1954. Under

Section 4(1) of the Wakf Act, the State Government was empowered to

appoint a Commissioner of Wakfs. The purpose of appointment of such a

person was to make survey of Wakf properties situated in a State. After a

survey, the Commissioner had to submit a report to the State

Government. In order to make such survey, the Commissioner was

empowered with certain powers such as:

(i) summoning and examining witnesses

(ii) requiring the discovery and production of documents

(iii) requisition from any public authority or any Court records in

their position

(iv) issuing commissions for examination of witnesses

(v) making any local inspection or local investigation.

The Act also empowered the Commissioner to go through

documents/deeds and decide whether a particular Wakf is a Wakf or not

and to decide whether a particular property is a Wakf property or not.

35. On preparation and completion of such a report, the https://www.mhc.tn.gov.in/judis

29/119 C.R.P.(NPD).No.964 of 2016

Commissioner had to submit the same to the State Government. This is

as per Section 5 of the Wakf Act. On receipt of the report from the

Commissioner, the State Government had to send the report so received

to the Wakf Board constituted in the State. The Wakf Board had to apply

its mind to the report and if there were no suggestions, to have it

published in the official gazette. In case there was a dispute whether any

property is a Wakf property or not, under the 1954 Act, the adjudication

had to be done before the Civil Court of competent jurisdiction.

36. The scope and effect of Sections 4 to 6 of the Wakf Act were

subject matter of interpretation before the Supreme Court in Board of

Muslim Wakfs, Rajasthan Vs. Radha Kishan and others, (1979) 2 SCC

468. The Supreme Court was pleased to hold that the Commissioner had

the jurisdiction to decide whether a property is a Wakf property or not.

The Court had held that if the Commissioner had the power to make a

survey, he had the implicit power to enquire whether a Wakf exists and

that making of such an enquiry on the existence of a Wakf. In other

words, the power to find out the existence of a Wakf is inherent in such

an enquiry.

37. The condition precedent for the Commissioner's report to be

binding on the Wakf Board or Muthavalli or any person interested in the https://www.mhc.tn.gov.in/judis

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Wakf is that notice should have been issued to the Muthavalli or any

person claiming through him and he should have been heard and

thereafter, the report should have been submitted.

38. I have to see, in this particular case, whether there has been a

survey after notice and if the Wakf Board had acted upon the same and a

gazette notification had been issued.

39. A careful perusal of the records in this case shows that under

Ex.A66, a survey had been conducted by the Assistant Commissioner of

Surveys. He had submitted a report with respect to this property itself.

The survey had been conducted on 10.02.1956. The survey seems to

have been conducted for several Wakfs and properties. The endorsement

with respect to this particular property reads as follows:

“There was a makan building in Survey No.669. It was replaced by the then local Board and is being used as a Travellers Bungalow for the last about 46 years. The Muthawalli was getting the produce of tamarind and other trees in the site till about 1942. When the Municipal Counsil, Gudiatham filed a suit in the District Munsif Court, Vellore (O.S.No.667/42) for the grant of an injunction order restraining the Muthavalli from entering https://www.mhc.tn.gov.in/judis

31/119 C.R.P.(NPD).No.964 of 2016

upon the site which and it was decided in favour of the Municipality. Against this order, the Muthawalli filed an appeal in the Sub Court, Vellore (A.S.No.29/50), which was allowed and decided in his favour. The Municipal Council, Gudiatham again took up the case on appeal before the High Court of Madras (S.A.No.1198/51), which has ended in compromise, but the Muthawalli has not yet received the decree and judgment of the High Court. A copy of the compromise deed filed in the High Court is enclosed. The property has not yet been divided as per the compromise deed.”

40. This survey report had been placed before the Wakf Board,

which entered it in the register of Wakfs, North Arcot District. This

document had been exhibited before the Court as Ex.A67. The Wakf

register shows that the Wakf had been registered on 04.05.1961 bearing

Registration No.185. The classification of the Wakf is “Sunni”. The

name and address of the Wakf has been given as “Jogi Madam Mosque

and Durga of Shah Jamaludeen Aulia”. The corresponding entry in

Column No.8 shows that the Inam deed (dry) for the property was

originally 810 and during the town survey, the land was given the survey

number as T.S.No.669.

41. Apart from Ex.A67, the Wakf Board has produced the bound https://www.mhc.tn.gov.in/judis

32/119 C.R.P.(NPD).No.964 of 2016

register containing the survey report of the Wakf. This is under Ex.A68.

Ex.A68 would show that the Muthavalli had been put on notice and was

being appointed hereditarily according to custom and usage. The object

of the Wakf was shown as “Mashruthul-Kidmath”. What is the meaning

of this term? This word is used in the Wakf Act of 1954 to include a

Wakf. The definition reads as follows:-

“(l) “wakf” means the permanent dedication by a person professing Islam or any other person of any moveable or immoveable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes -

(i) .....

(ii)grants (including mashrut-ul-khidmat, muafies, Khairati, quazi services, madadmas) for any purpose recognised by Muslim law as pious, religious or charitable; and

(iii) ......” A Division Bench of Andhra Pradesh High Court defined Mashrut-ul-

khidmat as follows:

“It means the grant was given for the benefit of Muslim community and means a grant stipulated for rendering service.1” Thus, it is a grant for rendering service. In other words, as a service

1 See Association of A.P. Sajjada Nasheens, Mutawallies and Khidmat Guzaran of Wakfs, Hyderabad Vs. Union of India and others, (2010) 4 ALD 136 : 2009 SCC OnLine AP 686 [para 36] https://www.mhc.tn.gov.in/judis

33/119 C.R.P.(NPD).No.964 of 2016

inam, it was classified as pious and religious. It was a grant for the

benefit of the Jogi Madam Mosque and Durga for offering prayers and

that lands had been endowed for rendering other connected services.

42. In column 10A, namely, the column with respect to particulars

of landed properties, description etc., Survey No.669 to an extent of 4.70

acres is specifically found. It is shown as cultivable lands to an extent of

2.87 acres and Municipal travellers bungalow together with outhouse and

garden to an extent of 1.83 acres. The classification of land is shown as

“inam dry” and the title deed as 810.

43. Reading the words 'Mashruthul-Kidmath' along with entries in

Serial No.24 and 25 of the survey report together with the endorsement

made in Ex.A66, I am able to come to the conclusion that Survey No.669

was endowed as a service inam in favour of the Wakf in title deed 810.

On this, the Municipal Council had constructed a bungalow leaving the

rest as cultivable lands.

44. The survey had been conducted in 1956 and was followed up

with a gazette notification under Section 5(2) of the Wakf Act of 1954.

This has been substantiated under Ex.A2. Ex.A2 is the gazette https://www.mhc.tn.gov.in/judis

34/119 C.R.P.(NPD).No.964 of 2016

notification of the then Government of Madras dated 11.02.1959. A

perusal of Ex.A2 shows that the Mosque itself is situated in T.S.No.701.

The extract from the bound register, which is the proforma report of the

Wakf Board, would show that the Wakf possessed of several properties,

which it obtained by way of five title deeds of the following period.

(i) T.D.No.341 dated 14.12.1860

(ii)T.D.No.447 dated 01.10.1861

(iii) T.D.No.810 dated 06.02.1865

(iv)T.D.No.159 dated 22.10.1860

(v)T.D.No.739 dated 27.02.1861.

45. Therefore, a combined reading of Ex.A2, A67, A68 and A69

(which corresponds to Ex.A2), I have to conclude that the Wakf had been

properly surveyed as required under Section 4 and notified as required

under Section 5. The report shows that the Muthavalli Kazi Syed Abbas

Hussain had been put on notice and he had also given his statement to the

Survey Commissioner. As per Section 6 of the Wakf Act, a Muthavalli,

who had been put on notice, has a period of one year to present a suit

challenging the notification. In case such a suit was not presented within

a period of one year, no claim contra to the said notification can be made https://www.mhc.tn.gov.in/judis

35/119 C.R.P.(NPD).No.964 of 2016

by such a person or anyone claiming through him. The notification does

not have the same effect on third parties. As will be seen below, the

defendants 1 to 6 are the descendants of the then Muthavalli. The

defendants 7, 8 and 20 being purchasers from the defendants 1 to 6

cannot be treated as third parties also.

46. The aforesaid documents reveal that Kazi Syed Abbas Hussain

being the then Muthavalli was a “person interested in the Wakf”, had

notice of the survey and report and yet did not present any suit as

required under Section 6(1) proviso of the Wakf Act of 1954. This

becomes relevant because the defendants 1 to 6 through whom the

defendants 7, 8 and 20 claim are the descendants of the said Kazi Syed

Abbas Hussain. During the course of hearing, the parties exchanged the

genealogy and the said genealogy is admitted. It is extracted below:

FAMILY TREE FATHER KAZI SYED HUSSAIN SHAH

SON KAZI FAKRUDDIN SHAH

SON KAZI SYED HUSSAIN

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36/119 C.R.P.(NPD).No.964 of 2016

SONS

1.SYED ABBAS HUSSAIN 4.SYED ZAHID HUSSAIN

2.SYED JAVAD HUSSAIN 5.SYED SIDDIQUE HUSSAIN

3.SYED NAZIR HUSSAIN 6.SYED AHAMED HUSSAIN

1.BADRUDDIN 1.SULAIMAN

2.KARIMUDDIN 2.IRFAN HUSSAIN

3.SABIR HUSSAIN

1.KAZI SYED MOHAMMED HUSSAIN

2.KAZI SYED GHALIB HUSSAIN SAHIB

1.KAZI SYED SABURUL GANI

2.KAZI SYED SHAHID AHAMED

3.KAZI SYED KHALID AHAMED

47. This shows the principals of the power of attorney, namely, the

seventh defendant, who had then alienated the property to the eighth

defendant are as follows:

(i) Irfan Hussain

(ii) Kazi Syed Mohammed Hussain

(iii) Kazi Syed Ghalib Hussain Sahib

(iv) Kazi Syed Saburul Gani

(v) Kazi Syed Shahid Ahamed

(vi) Kazi Syed Khalid Ahamed

(iv) to (vi) are all grandsons of Syed Nazir Hussain through his third son https://www.mhc.tn.gov.in/judis

37/119 C.R.P.(NPD).No.964 of 2016

Sabir Hussain. The father of the first principal and the grandfather of the

principals 2 to 6 was the brother of the Muthavalli Syed Abbas Hussain,

namely, Syed Nazir Hussain. There is no dispute that he had also acted

as a Muthavalli pursuant to the understanding between the parties, which

I shall advert to later. Syed Nazir Hussain not having challenged the

gazette notification as required under Section 6, the defendants 1 to 6,

who claim through him, are consequently bound by the said notification.

48. Similarly, insofar as the 20th defendant is concerned, the

vendors of the 20th defendant are also the descendants of Kazi Syed

Hussain Sahib and Kazi Syed Ahamed Hussain. It was argued on behalf

of the 20th defendant that since no relief has been sought for against

them, the suit against the 20th defendant will have to be dismissed.

49. A perusal of the plaint shows that it is a suit for declaration that

the properties are Wakf properties. The total extent that is sought for in

Survey No.669/2 is about 3 acres and 29 cents. The purchase of the 20 th

defendant is to an extent of 75 cents in this area. If I were to conclude

that it is a Wakf property, then no person can claim a right over the

property, except otherwise than through the then existing Wakf Act. In https://www.mhc.tn.gov.in/judis

38/119 C.R.P.(NPD).No.964 of 2016

other words, if a Wakf property is to be alienated, then it has to be

through an order of the Wakf Board permitting such sale. Otherwise, as

will be seen later, the Act itself declares such alienations to be void.

Whether notice is necessary under Section 89 of the Waqf Act, 1995:

50. The learned Tribunal in paragraph No.87 of the judgment has

held that notice under Section 89 of the Waqf Act of 1995 not having

been issued, the suit has to fail. He goes on to hold that pre-suit notice is

a must in all cases and in the event of lack of such notice, the suit itself is

not maintainable. I necessarily have to refer to Section 89 of the Waqf

Act, 1995, which reads as follows:

“89. Notice of suits by parties against Board.—No suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.”

51. Section 89 corresponds to Section 56 of the Wakf Act of 1954.

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39/119 C.R.P.(NPD).No.964 of 2016

This Court in Rahmat Bi and another Vs. the State Wakf Board, AIR

1982 Mad 202 at page 205 has held the issue of a notice under Section

56 of the Wakf Act is a condition precedent for institution of the suit.

Relying upon this judgment, Mr.N.Manokaran would argue that since

pre-suit notice has not been issued, the suit is liable to be rejected.

52. This argument requires a careful consideration of Section 89.

Section 89 has the following characteristics:

(i) no suit can be instituted against the Board,

(ii) in respect of any act purporting to be done by it,

(iii) in pursuance of this Act or of any Rules made thereunder,

(iv) until expiration of two months next after notice in writing,

(v) has been left at or delivered in the office of the Board and

(vi) stating the cause of action, the name and description of the

plaintiff etc.

53. In order to attract Section 89, the suit must be presented against

the Wakf Board for any act purporting to be done by it in pursuance of

the Act and Rules. The perusal of the plaint shows that the plaintiff has

not challenged any action of the Wakf Board, but on the contrary, has https://www.mhc.tn.gov.in/judis

40/119 C.R.P.(NPD).No.964 of 2016

attempted to clear the cloud over the Wakf's title and has challenged the

sale deeds executed by the legal heirs of the Muthavalli in favour of the

eighth defendant through the power of attorney, the seventh defendant.

In other words, the plaintiff has not instituted a suit in respect of any

action taken by the Board under the Act or the Rules made thereunder.

Hence, Section 89 does not apply. Therefore, the argument of

Mr.N.Manokaran has to fail.

54. A reading of the judgment in Rahmat Bi and another Vs. the

State Wakf Board, AIR 1982 Mad 202 would show that in that case, the

relief that had been sought for was against the Wakf Board by the

plaintiff. This view of mine is supported and in line with the view taken

by the Gujarat High Court in the case of Syed Khersha Sajanshah

Mutvalli, Bhuj Kutch Vs. The Bhuj Municipality and another, AIR

1986 Guj 1. The Court in that case held that the Wakf Board had been

joined as the defendant in the suit without claiming any relief. The Wakf

Board was a proper party and hence, it had been impleaded.

55. It would be apposite to refer to Section 90(1) of the Waqf Act.

This Section reads as follows:

“90. Notice of suits, etc., by courts.— https://www.mhc.tn.gov.in/judis

41/119 C.R.P.(NPD).No.964 of 2016

(1) In every suit or proceeding relating to a title to or possession of a wakf property or the right of a mutawalli or beneficiary, the court or Tribunal shall issue notice to the Board at the cost of the party instituting such suit or proceeding.”

A glance at this provision shows where any right, title or interest in a

Wakf property or a claim is made by a Muthavalli or a beneficiary and in

such proceedings, the Wakf Board has not been made a party, the statute

demands upon the Court or the Tribunal to issue notice to the Board.

This implies that the Wakf Board is a proper and a necessary party in any

proceedings, where the aforesaid issues are to be dealt with. However,

Section 90 does not insist upon a pre-suit notice in such case. Notice is

essential only in cases covered by Section 89, where relief is sought for

against the Wakf Board. As per this Section, since the Board is a proper

and necessary party and if Board is not impleaded, the Court while

issuing the notice should insist upon the party instituting the proceedings

to pay the cost for issuance of such notice. While Section 90 is general

in application, Section 89 applies only to specified cases. Therefore, the

view of the learned Tribunal that in all cases where the Wakf Board is a

party, notice must be issued under Section 89 is a misreading of the

Section. If this argument is to be accepted, then the Parliament would

not have enacted two separate Sections, namely, Sections 89 and 90. The https://www.mhc.tn.gov.in/judis

42/119 C.R.P.(NPD).No.964 of 2016

learned Judge has telescoped the interpretation given to Section 89 to

Section 90 and therefore, is contrary to the fundamental principles of

statutory interpretation. One Section must not be read in a manner to

defeat the purpose of other Section. As pointed out above, in all

categories covered under Section 90(1), the Wakf Board is a proper and

necessary party, but that does not mean in all such cases, notice is

necessary under Section 89. To reiterate, notice under Section 89 is

necessary only if it comes within the scope of that Section.

56. The learned Single Judge of the Gujarat High Court held that

where no relief is claimed against the Wakf Board, it would not attract

the provisions of Section 56 of the Wakf Act of 1954. The same situation

prevails here. Therefore, the finding of the learned Tribunal that, notice

was not issued under Section 89 and therefore, it is fatal to the suit, is

erroneous. It is an erroneous reading of the parliamentary legislation and

hence, perverse.

Whether the documents dated 16.10.1946 and 07.07.1931 have a

bearing on the title of the suit property:

57. Two documents had been filed under Ex.A1 dated 16.10.1946 https://www.mhc.tn.gov.in/judis

43/119 C.R.P.(NPD).No.964 of 2016

and the other under Ex.A58, namely, document dated 07.07.1931. By

virtue of these documents, it was sought to be argued by the counsel for

the purchasers that a Trust had been created by Kazi Syed Hussain Sahib

and the properties had been dealt with as individual assets of the family.

This requires me to go through Ex.A58 and Ex.A1.

58. The document under Ex.A58 reads as follows:

“1932-Mk; tUlk; [{iy> 7-Mk; ehs; Fbahj;jk; jhYf;fh> jhioahj;jk; fpuhkk;> N[hfp klk; k[Pj; ,dhk; jHkfHj;jh fh[p ira;aj; cNrd; rhAG FkhuHfs; iraj; mg;gh]; rhAG 1> iraj; [t;thj; cNrd; 2> iraj; e[PH cNrd; rhAG 3> iraj; [h`pj; cNrd; rhAG 4> ira;aj; rpj;jpf; cNrd; rhAG 5> ira;aj; m`kj; cNrd; rhAG 6-k; Mf ehq;fs; vy;NyhUk; VNfhgpj;J kd rk;kjpaha; vOjpf;nfhz;l N[hfpklk; k[Pj; Copak; ,dp elf;f Ntz;ba `f;F Vf;whH ehkh nad;fpw mf;hpnkz;l;L vd;dntd;why;> 1. vq;fs; Kd;NdhHfshfpa ghl;ldhH Mfpa ira;aj; \h gj;Uj;jPd; rhAG Nguhy; 96 eP jhioahj;jk; fpuhkk; N[hfp klk; k[Pj;jhUf;fhf Fbahj;jk; f];gh fpuhkj;jpYk;> jhioahj;jk; fpuhkj;jpYk;> nrUtq;fp fpuhkj;jpYk;> Nky;Myj;J}H fpuhkj;jpYk; Nkw;gb fpuhkq;fs; 4-y; epNt[dk; eQ;ir> GQ;ir rHtP]; ,dhkhf tplg;gl;bUf;fpwJ. 2. Nkw;gb nrhj;Jf;fspy; vq;fs; Kd;NdhHfshy; ghuhjPdk; Maptpl;bUf;fpwJ. mjdhy; Nkw;gb k[Pj; Copak; tiff;F elf;f ,ilQ;ryhf ,Ug;gjhy; mijg;gw;wp ehq;fs; NfhHl;L %ykha; rpyT nra;J Nkw;gb k[Pj;Jf;F rk;ge;jg;gl;l nrhj;Jf;fs; vq;fSila RthjPdk; https://www.mhc.tn.gov.in/judis

44/119 C.R.P.(NPD).No.964 of 2016

nra;Jf;nfhz;L Nkw;gb epyq;fspy; tUk; tUkhdq;fspy; k[Pj; Copak; rpyTnfdTk;> rHf;fhH gz;L jPHitAk; NfhHl; nryTk; Nghf kPjpia mbapy;fz;lgbf;F ehq;fs; vy;NyhUk; ghfpj;Jf;nfhs;s Ntz;baJ. 3. Nkw;gb k[Pj; rh;tP]; ,dhk; epyq;fis tpf;fpuakhtJ> fhak; fTyhtJ mlkhdkhtJ nra;af;$lhJ. 4. Nkw;gb k[Pj; Copak; ehq;fs; vy;NyhUk; rhptug; ghHj;Jf;nfhz;L tuNtz;baJ. Nkw;gb k[Pj; thl;th\;hpNgH tNfwhTk; nra;Jf;nfhz;L tuNtz;baJ. Nkw;gb k[Pj;Jf;F rk;ge;jg;gl;l jHfh> fgu];jhd; tNfwh kuhkj;JfSk; ghHj;Jf;nfhz;L tuNtz;baJ. 5. Nkw;gb k[Pj;Jf;F rk;ge;jg;gl;l nrhj;Jf;fspd; tUkhdj;jpy; nghJtpy; k[Pj; Copak; rpyT tifwhTk;> rHf;fhH jPHitAk; Nghf kPjpia vq;fs; guk;guaha; apUf;fpwgbahy; kpFjpahFk; tUkhdj;jpy; 8 vl;L ghfk; nra;J 1)tJ iraj; mg;gh]; rhAG N[\;l ghfkha; ,Uf;fpwgbahy;> Nkw;gbahUf;F ghfk; ,uz;Lk;> 2-tJ ira;aj; [t;thj; cNrd; rhAGf;F ghfk; 1 vd;Wk;> 3-tJ ira;aj; e[PH cNrd; rhAGf;F ghfk; 1 vd;Wk;> 4-tJ iraj; [h`pj; cNrd; rhAGf;F ghfk; 1 vd;Wk;> 5-J iraj; rpj;jpf; cNrd; rhAGf;F ghfk; 1 vd;Wk;> 6-tJ iraj; m`kj; cNrd; rhAGf;F ghfk; 1 vd;Wk;> Mf egH 6-f;F 7 ghfk; Nghf kPjp 1 ghfk; Nkw;gb k[Pj; Copak; lHd;gbf;F tug;gl;ltUf;F FLj;JtplNtz;baJ.

6. Nkw;gb k[Pj; Copak; lHd;gbf;fp egH 1-f;F tU\k;

1-f;F rhptu ghHf;f Ntz;baJ. vq;fs; lHd;gbf;F tUk; Copak; ghHf;f narTglhjtH mtUf;F ,\;lg;gl;l vq;fspy; ahUf;fhtJ Copak; ghHf;ftplyhk;. Nkw;gb Copak; ghfk; 1-k; Copak; ghHf;fg;gl;ltUf;F FLj;JtplNtz;baJ. vq;fs; jtpu md;dpaUf;F Nkw;gb Copak; ghHf;f tplf;$lhJ. ,e;jg;gbf;F vq;fs; kd rk;kjpapy; vOjpf;nfhLj;j vf;whH ehkh vd;fpw mf;hpnkz;l;L. Nkw;gb epyq;fspy; rHNt ek;gHfSk;> tUkhdj;ijAk; Fwpg;gjw;F rhj;jpakpy;iy.

https://www.mhc.tn.gov.in/judis

45/119 C.R.P.(NPD).No.964 of 2016

rhl;rpfs; ifnaOj;Jf;fs; 1)mg;Jy; ifA+k; 1) Syed Abbas A.Abdul Razak 2) iraj; [t;thj; cNrd; 3) Syed Nazir Hussain 4) iraj; [h`pj; cNrd; 5) Syed Siddique Hussain 6) Syed Ahamed Hussain

,e;j mf;hpnkz;l;L vOjpaJ Syed Abboss”

The said document is translated in english as follows:

“We, all 1) Syed Abbas Sahib, 2) Syed Jawad Hussain

3) Syed Nazir Hussain Sahib, 4) Syed Zahith Hussain Sahib,

5) Syed Siddiq Hussain Sahib, 6) Syed Ahamed Hussain Sahib, the sons of Khaji Syed Hussain Sahib, Dharmakartha/Muttavalli of Jogi Madam Masjid Inam at Thaalayatham Village, Gudiyatham Taluk, entered into an agreement viz., ‘Hakku Ikrar nama’ unanimously on 7th July, 1931, for the management and services of the Jogi Matam Mosque Masjid Inam, whereas,

1. The wet and dry lands belongs to the four villages viz., Gudiyattam Kaspa village, Thalayattam village, Seruvangi Village, Mel Alathur Village have been granted to the Jamayathdars of Jogi Madam at No.96, Kudiyattam https://www.mhc.tn.gov.in/judis

46/119 C.R.P.(NPD).No.964 of 2016

Village as service Inam, in the name of our ancestor Syed Shah Bahrudin Sahib.

2. The aforesaid properties were alienated by our ancestors. As, there is an impediment for Masjid Service, we took the possession of the properties related to the aforesaid Masjid through court by meet out the court expenses; we, all have to divide the income from the aforesaid lands after deducting the expenditure of the Masjid Service, Government Fund and Court expenses as mentioned under.

3. The aforesaid lands of Masjid Service Inam should not be alienated by sale or mortgage.

4. We, all have to discharge the duties of aforesaid Masjid Service properly. The maintenance repair works of the aforesaid Masjid should be carried out. Similarly, the repair and maintenance works of Dargah and Kabristan belonging to the aforesaid Masjid should also be carried out..

5. Since, it is our ancestral service property, the surplus income from the properties belonging to the aforesaid Masjid should be divided into 8 parts, after deducting the Masjid Service expenditure in common and Government tax. Since, the 1) Syed Abbas Sahib is the eldest son, he got two shares;

2) Syed Jawad Hussain got one share; 3) Syed Nazir Hussain Sahib got one share; 4) Syed Zahith Hussain Sahib got one share; 5) Syed Siddiq Hussain Sahib got one share, 6) Syed Ahamed Hussain Sahib got one share, thus, 7 shares have been divided for the six persons and one additional share https://www.mhc.tn.gov.in/judis

47/119 C.R.P.(NPD).No.964 of 2016

should be given to the person, who rendered the service of the aforesaid Masjid, in turn basis.

6. Each person should do service for one year in turn basis and manage the aforesaid Masjid. If anyone among us, would not able to do service, in turn basis, he may render his share to any one of us out of his desire. The aforesaid service should be rendered to the person, who holds the 1st part. Strangers should not be allowed to do the aforesaid service except us. This is the “Ikrarnama” agreement written by our consent. There is no possibility to mention the Survey Numbers and income of the aforesaid lands.

Witnesses Signatures 1. Abdul Qayyum 1. Syed Abbas A. Abdul Razak 2. Syed Jawad Hussain 3. Syed Nazir Hussain 4. Syed Zahith Hussain 5. Syed Siddique Hussain 6. Syed Ahamed Hussain Agreement written by Syed Abboss”

59. I am able to perceive the following from Ex.A58:

(i) The sons of Kazi Syed Hussain Sahib, who was the Muthavalli

of Jogi Madam Masjid Inam, entered into an agreement for the

management of services of the Jogi Madam Masjid Inam.

(ii) Properties situated in Gudiyattam Kaspa Village, Thalayattam

Village, Seruvangi Village, Mel Alathur Village had been granted to Jogi

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48/119 C.R.P.(NPD).No.964 of 2016

Madam as a service inam to the ancestor of the parties to the document,

namely, Syed Shah Bahrudin Sahib.

(iii) Few properties endowed as service inam had been alienated by

the ancestors. The alienations became an impediment for the

performance of Masjid service. Therefore, the sons of the Muthavalli

took possession of the same through the Court.

(iv) The income from the properties were to be divided after

deducting amounts towards Masjid service and Government taxes and

Court expenses.

(v) The lands which are the subject matter of Inam should not be

alienated by sale or mortgage.

(vi) The signatories to the document were to discharge the Masjid

service in a proper manner and maintain and repair the Mosque Durga

and Kabristan from and out of the income.

(vii) The property is an ancestral service inam property and after

paying out the aforesaid expenses towards maintenance of the Mosque,

Government dues and Court expenses, the surplus income should be

divided into eight parts.

(viii) One additional share from and out of the eight was to be paid https://www.mhc.tn.gov.in/judis

49/119 C.R.P.(NPD).No.964 of 2016

to the person rendering the service in turn duty. Each son gets a turn of

one year. Non-family members should not be permitted to do the service.

60. A thorough reading of this document shows that the property

was treated only as a service inam of the family and therefore, the father

of the signatories to the document was performing Kazi service and since

he had six sons, they decided to ensure that there is no dispute amongst

themselves and the service should be performed in turn basis. This by no

stretch of imagination can be treated as a creation of a Trust. On the

contrary, it is a document which shows that the properties are enjoyed

only as a service inam by the family with a strict restriction that none of

the parties to the document, who were managing the Wakf, were entitled

to alienate the property in any manner either through sale or through

mortgage.

61. The next document relied upon to argue that a Trust had been

created is Ex.A1. Yet again, I am extracting Ex.A1 for the purpose of

understanding the actual position:

“DOCUMENT NO.3263 of 1946

bu];lL ; nrhj;J buhd;];gH gj;jpuk; 1946-k; tU\k; mf;NlhgH kP. Gjpdhd;fhk; Njjp ehHj;jhHfhl; b];l;hpf;l>; https://www.mhc.tn.gov.in/judis

50/119 C.R.P.(NPD).No.964 of 2016

Fbahj;jk; rg; b];l;bhpf;l; Fbahj;jk; lTd;> jhioahj;jk; kjhw;rhAG tPjpapypUf;Fk; kfk;kjpa[hjp N[hfpklk; k[;[pj;`h[khDjpUd; mTy;ah jw;fh kh[p bu];l;b fh[pfj;jPg; iraj; cNrd; rhAG FkhuHfSk; jw;fhy bu];l;bfSkhd (1) K.iraj; mg;gh]; cNrd; rhAG> (2) K.iraj; [t;thj; cNrd; rhAG> (3) K.iraj; erPH cNrd; rhAG> (4) K.iraj; [h`pj; cNrd; rhAG> (5) K.iraj; erPH cNrd; rhAG> (6) K.iraj; `fkjP cNrd; rhAG Mfpa cq;fSf;F Nkw;gb lTd; Nkw;gb [hjp iraj; gf;UjPd; rhAG FkhuUk; Nkw;gb k];[pj;

jHfh kh[pbu];l;bAkhd fh[p fj;jPg; iraj; cNrd; rhAG Mfpa ehd; vd; kdg;G+HtkhAk; [hgfrf;jpAlDk; vOjpitj;Jf;nfhLj;j bu];l;L nrhj;J buhd;];gH gj;jpuk;

vd;dntd;why;> ehd; Nkw;gb k];[j P p jHfh tk;rthhp

bu];l;bahfTk;> fh[pfj;jPg; XjhtpYk; ,Ue;J te;J vdf;F taJ mjpfkhdjpdhYk; mjhtJ RkhH 90 tajhfp rhPu rf;jp FiwtpdhYk; vdf;F Vw;gl;l tpahjpapd; njhe;juTfshYk; bu];l;b NtiyiaAk; Copaq;fisAk; fh[p fj;jg P ; NtiyiaAk; nra;J tu Kbahj fhuzj;jhy; 1938-k; tU\j;jpy; cq;fs; MW egHfisAk; vd;Dila uh[pdhkhtpd;Nghpy; ek;gH [khj;jhHfSk; fthd;nkz;l;bYk; bu];;l;bfshf epakpj;J ePq;fs; 6 egHfSk; mJKjy; bu];l;bfshf Nkw;gb k#jp jHfh Copaq;fisAk; ghJfhj;J tUfpwPHfs;.

vd;dhy; Kbahky; tpl;Ltpl;l tk;rhthhp bu];l;b ghj;jpaj;ijAk; bu];lb; nrhj;Jf;fisAk; ahnjhU gpujpgpuNah[dKk; cq;fsplk; thq;fhky; cq;fs; 6 egHfSf;Fk; buhd;];gH nra;Jtpl;L ehd; bu];l;b gjtpapypUe;J ePq;fptpl;Nld;. bu];l;b nrhj;Jf;fisAk;> hpf;fhHLfisAk; jq;fs; trk; Vw;fdNt xg;Gtpj;Jtpl;Nld;. ePq;fs; 6 bu];l;bfSk; Kd;NghyNt https://www.mhc.tn.gov.in/judis

51/119 C.R.P.(NPD).No.964 of 2016

fh[p fj;jPg; Ntiy KjyhdJk; Nkw;gb k#jp jHfh nrhj;Jf;fis bu];l;L Xjhtpy; rhptu ghJfhj;J Copaq;fis rhptu elj;jp tu Ntz;baJ. Mifahy;

vdf;Fk; Nkw;gb k#jp jw;fh NkNd[;nkz;lL ; f;Fk; Copaq;fSf;Fk; bu];l;L nrhj;Jf;fSf;Fk; ahnjhU ghj;jpaKk; gpd; njhlHr;rpAk; fpilahJ. ,e;jg;gbf;F vd; kd rk;kjpapy; vOjpf;nfhLj;j bu];l;L nrhj;J buhd;];gH gj;jpuk;.

bu];l; nrhj;J tptuk;

(Nkw;gb nrhj;J tptuq;fis tphpthf gf;fk; 4> 5-y; vOjg;gl;bUf;fpwJ) ehHj;jhHf;fhl; b];bhpf;l;> Fbahj;jk; rg;

b];l;bhpf;l;> Fbahj;jk; lTd;> 5tJ thHL GQ;ir gioa rHNt ne.52f;F lTd; rHNt Vf;fH – nrz;l;

682/2 1.33 683 0.5 684 0.3 685 0.3 686 0.4 687 0.3 688 0.1 689 0.1 690 0.10 691 0.4 692 0.4 693 0.6 694 0.7 695 0.2 696 0.3 https://www.mhc.tn.gov.in/judis

52/119 C.R.P.(NPD).No.964 of 2016

697 0.1 698 0.4 699 0.1 700/2 0.24 707 0.31 708 0.8 710/1 3.47 710/2 2.73 Fbahj;jk; lTd; 5-tJ thHL ,dhk; GQ;ir gioa

rHNt ne.59f;F lTd; rHNt 669f;F Vf;fH 4.70. Nkw;gb lTd; 3tJ thHL ,dhk; GQ;ir gioa rHNt ne.80-f;F lTd; rHNt ne.

lTd; rHNt Vf;fH – nrz;l; 203 0.12 204 0.4 205 0.2 206 0.2 207 0.5 208 0.5 209 0.2 211 0.4 212 0.3 213 0.1 214 0.4 215 0.6 216 0.3 217 0.2 218 0.8

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53/119 C.R.P.(NPD).No.964 of 2016

219 0.4 220 0.5 221 0.3 222 0.4 223 0.3 224 0.2 225 0.7 226 0.7 227 0.5 228 0.5 229 0.4 230 0.2 231 0.3 232 0.4 233 0.3 234 0.8 235 0.10 236 0.5 237 0.5 238 0.8 239 0.7 240 0.5 241 0.10

,itfSk; jhioahj;jk; fpuhkk; ,dhk; eQ;ir hPrHNt ne.239 Vf;fH 3.8 hprHNt ne.149f;F Vf;fH 1.43k; ,JTk; nrUtpq;fp fpuhkk; dhk; eQ;ir hprHNt ne.204-f;F Vf;fH 1.12k; ,JTk; Nky; Myj;J}H fpuhkk; ,dhk; eQ;ir hprHNt ne.362/1 Vf;fH 3.86 hp.rHNt nek;gH 362/3 0.47 nrz;Lk;> hprHNt ne.330 – Vf;fH 3.33 hprHNtgb 330/1> https://www.mhc.tn.gov.in/judis

54/119 C.R.P.(NPD).No.964 of 2016

1.71> 330/2 Vf;fH 1.62 ,itfspy; ,Uf;Fk; gy tpU\q;fSk; fpzWfSk; cs;gl.”

The said document is translated in english as follows:

“Document No.3263 of 1946

This is a Transfer Deed of Trust Property of Jogi Matam Mosque Masjid Hajamaluddin of Aouliab Dargah, which is belonged to the trust of Muslim Religion located at Madar Sahib Street, Thaalayatham, Gudiyatham Town, Gudiyatham Sub District, North Arcot District, executed on 14th October, 1946, I, Khaji Katheef Syed Hussian Sahib, son of Syed Bahrudin Sahib, belonged to aforesaid community, aforesaid town and Ex-Trustee of aforesaid Mosque and Dargah, hereby, executed a trust properties transfer deed in favour of you, the six sons of Ex-Trustee Khaji Katheef Syed Hussian Sahib as well as the present Trustees of 1) K.Syed Abbas Hussian Sahib, 2) K.Syed Jawad Hussian Sahib, 3) K. Syed Nazir Hussian Sahib, 4) K.Syed Zahith Hussian Sahib, 5) K. Syed Siddiq Hussian Sahib, 6) K.Syed Hameed Hussian Sahib, with wholeheartedness and consciousness. whereas I, who was a hereditary Muttavali of the trust of the aforesaid Mosque and Dargah offering prayers as “Kaji Katheef” in the Mosque, I have resigned from the Trustee Post, services and work. Since, I have attained the age of at about 90, I could not able to continue the trustee work, services and 'Kaji Katheef' work effectively due to the lack of https://www.mhc.tn.gov.in/judis

55/119 C.R.P.(NPD).No.964 of 2016

physical strength and the inconvenience caused by the disease. After, my resignation, I have appointed you, the six persons, as Trustees in the year 1938, in the Jamayatar and Government Trustee. Since then, you, the six persons have been managing the aforesaid Mosque and Dargah and its services. I have transferred, the enjoyment of the muttavali of the trustee and the properties of the trust which I could not able to maintain, to you, six persons, as a service inam and I have resigned from the post of trustee. I have already handed over the properties of the trust and documents to you. Hereafter, you, the six trustees, have to discharge the duties of kaji katheef, maintain the properties of aforesaid Mosque and Dargah and do the services effectively, as you have did earlier. Hence, I have no right of enjoyment in the management of the aforesaid Mosque and Dargah, services and properties of the trust and the follow up. Accordingly, this is a Transfer Deed of Trust Property executed with my consent.

Schedule of the Trust Properties ( the details of the aforesaid properties are written in the page 4 and 5) For Inam Dry land old Survey No.52, 5th ward, Gudiyatham Town, Gudiyatham Sub District, North Arcot District,

Town Survey Acre- Cent 682/2 1.33 683 0.5 684 0.3

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56/119 C.R.P.(NPD).No.964 of 2016

685 0.3 686 0.4 687 0.3 688 0.1 689 0.1 690 0.10 691 0.4 692 0.4 693 0.6 694 0.7 695 0.2 696 0.3 697 0.1 698 0.4 699 0.1 700/2 0.24 707 0.31 708 0.8 710/1 3.47 710/2 2.73 For the Inam dry land in old Survey No. 59, 5th ward, Gudiyatham Town survey 669 with an extent of 4.70 acre.

For the Inam dry land Survey No.80, 3rd ward of the aforesaid Town.

Town Survey Acre- Cent 203 0.12 204 0.4 205 0.2 https://www.mhc.tn.gov.in/judis

57/119 C.R.P.(NPD).No.964 of 2016

206 0.2 207 0.5 208 0.5 209 0.2 211 0.4 212 0.3 213 0.1 214 0.4 215 0.6 216 0.3 217 0.2 218 0.8 219 0.4 220 0.5 221 0.3 222 0.4 223 0.3 224 0.2 225 0.7 226 0.7 227 0.5 228 0.5 229 0.4 230 0.2 231 0.3 232 0.4 233 0.3 234 0.8 https://www.mhc.tn.gov.in/judis

58/119 C.R.P.(NPD).No.964 of 2016

235 0.10 236 0.5 237 0.5 238 0.8 239 0.7 240 0.5 241 0.10

Above these and Thalayatham Village, inam wet land Re- survey No. 239 with an extent of 3.8 acres, Re-survey No.149 with an extent of 1.43 acres and Seruvingi Village, inam wet land Re-survey No. 204 with an extent of 1.12 acres and West Alathur Village, inam wet land Re-survey No.362/1 with an extent of 3.86 acres, Re-survey No. 362/3 with an extent of 0.47 cent, Re-survey No. 330 with an extent of 3.33 acres, Re- survey No. 330/1 with an extent of 1.71 acres and Re-survey No.330/2 with an extent of 1.62 acre including the trees and wells in the aforesaid lands.”

62. By this document, it is clear that the hereditary Muthavalli and

Kazi service holder of Jogi Madam Mosque, namely, Haji Katheef Syed

Hussain Sahib decided to relinquish his office in favour of his sons. By

the time, he wrote the document, he was 90 years old. He did not possess

the strength and ability to continue to perform the Kazi service.

Consequently, eight years before the execution of the document, he had https://www.mhc.tn.gov.in/judis

59/119 C.R.P.(NPD).No.964 of 2016

appointed his sons to carry on the work. He specifically directs under the

document that his sons have to perform the Kazi duty and also maintain

the properties and perform the services of a Kazi without any default.

Though the document is titled as a transfer deed of a Trust property, it is

pertinent to point out that what was transferred, in fact, was not the

property, but the Kazi services. It is relevant to note here that the suit

schedule property, namely, Survey No.669 is specifically mentioned as

inam dry land. Therefore, the submission that Haji Katheef Syed Hussain

Sahib had transferred the properties in favour of his sons by virtue of

Ex.A1 is erroneous. As already pointed out, what had been transferred

was only the right to perform the Kazi service in favour of the sons, who

were already performing the same. They had also, as seen from Ex.A58,

entered into an agreement for turn basis in performance of the Kazi

service.

63. Both these documents, in my view, confirm that a larger extent

of the property including the suit schedule mentioned property were only

service inam of the properties belonging to Jogi Madam Mosque and

Durga. When Haji Katheef Syed Hussain Sahib was only the service

holder and not the owner of the property, he is not entitled to create a https://www.mhc.tn.gov.in/judis

60/119 C.R.P.(NPD).No.964 of 2016

Trust over the same. In fact, the documents, as already pointed out

above, do not create a Trust of the properties, but only deal with the

office of Muthavalli. Perhaps, the document under Ex.A1 had been

entered into in order to confirm that the erstwhile Muthavalli does not

claim any right over the service and also to clarify that his sons had taken

over the performance of service.

Whether a suit can only be filed by the Wakf Board:

64. It was argued that when the case of the plaintiff is that the suit

property is a Wakf property, it is only the Wakf Board that is empowered

to present a suit. This argument is based on Section 32(2)(i) of the Waqf

Act. As per Section 32(2)(i), one of the functions of the Board is to

institute and defend suits and proceedings relating to a Wakf. It is

therefore argued that since Section 32 empowers only the Wakf Board, a

Muthavalli cannot present a suit. In this regard, reliance was placed

upon a judgment of this Court in the case of The Secretary Vs.

Kancheepuram Oili Mohamed-Pettai Labbai Jumma Masjid, 2010 (4)

CTC 516.

65. From Ex.A3 and A4, it is seen that the 11 persons https://www.mhc.tn.gov.in/judis

61/119 C.R.P.(NPD).No.964 of 2016

governing/managing the plaintiff had been appointed to manage the Wakf

by the Tamil Nadu Wakf Board. This order of appointment has not been

challenged by any party including the defendants 1 to 6, who can claim

hereditary right, to manage the Wakf.

66. Let us now turn to the definition of a Muthavalli. Under

Section 3(i), a Muthavalli for the purpose of the Waqf Act has been

defined. Section 3(i) makes it clear that the Muthavalli means any

person, committee or corporation for the time being managing or

administering any Wakf or Wakf property. By virtue of Ex.A3 and A4, a

committee was appointed to manage the plaintiff. By reading these

documents with Section 3(i), the committee has to be declared as a

Muthavalli.

67. The issue whether the Muthavalli can present a suit for and on

behalf of the Wakf is no longer res integra. This very issue had been

gone into in Syed Khersha Sajanshah Mutvalli, Bhuj Kutch Vs. The

Bhuj Municipality and another, AIR 1986 Guj 1. The relevant portions

are extracted hereunder:

“18. It is, therefore, clear that under the Mahomedan https://www.mhc.tn.gov.in/judis

62/119 C.R.P.(NPD).No.964 of 2016

Law, which is a personal law, the Mutwalli has right to file a suit in respect of the wakf property. Now Mr. Y.S. Mankad submits that S. 36 of the Wakf Act, 1954 prescribes the duties of Mutawalli and therefore, it does not fall under S. 36 or other relevant provisions of the Act, Mutawalli cannot file a suit and one cannot rely on the Mahoniadan personal law when there is a statute enacted on the subject. It is true that S. 36 speaks about the duties of Mutawallis. They are as under:-

(a) to carry out the directions of the Board;

(b) to furnish such returns and supply such information or particulars as may from time to time be required by the Board;

(c) to allow inspection of wakf properties, accounts or records or deeds and documents relating thereto;

(d) to discharge all public dues; and

(e) to do any other act which he is lawfully required to do by or under this Act. At this juncture when the word “Mutawalli” is used in S. 36 it would be necessary to read the definition of the word “Mutawalli” as given in the said Act. It is S. 3(f) which runs as under:— “3(f). “Mutawalli” means any person appointed either verbally or under any deed or instrument by which a wakf has been created or by a competent authority to be the Mutawalli of a wakf and includes any Naib-Mutawalli, khadim, mujawar, sajjadanasin, amin or other person appointed by a Mutawalli to perform the duties of a Mutawalli and, save as otherwise provided in this Act, any person or Committee for the time being managing or administering any wakf property as such.”

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From reading the said definition it is clear that it not only means any person appointed under instrument of wakf or verbally but it would also include khadim, mujawar, sajjadanasin and except or otherwise provided in the Act any person or committee for the time being managing or administering any wakf property as such. Therefore, on the date on which this Act came into force when any person was de facto managing or administering the property, was also included as Mutawalli. Therefore, the definition presupposes that the first and foremost duty of the Mutawalli would be to manage or administer the property. The Mutawalli has to perform two types of duties; religious duties and secular duties. The religious duties may be in the nature of offering prayers, dhup, etc. while secular duties would include the collection of rent, managing the property, keeping the property in good condition, preparation thereof, administering the property and if somebody encroaches upon the wakf property then to protect those rights. It is pertinent to note that S. 36 does not speak about the management and administration of the property as one of the duties of Mutawalli. We have to take into consideration the very purpose for which the Act is enacted. It is clearly in the preamble that it is an Act to provide for the better administration and supervision of wakfs. Therefore, the Legislature intended that in addition to their duties under the Personal Law there must be further statutory duties and those

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duties are prescribed under S. 36 of the said Act. Therefore, whatever the rights or duties the Mutawalli has under the personal law cannot be said to have been taken away merely because they are not so expressly provided as duties and powers of Mutawalli under the provisions of the Wakf Act.

19. Even examining the provisions of S. 30, apart from other duties, it also prescribes to do any other act which is lawfully required to be done by or under this Act, S. 6 of the Act gives the right to the Mutawalli and also to any other person interested therein to institute a suit in a Civil Court of competent jurisdiction for the decision of the question as to whether a particular property is wakf property or not or whether a particular property specified as wakf property in a list of wakfs published under sub-sec. (2) of S. 5 is wakf property or not. Similarly, S. 37 also prescribes the duties of the Mutawalli for paying from the income of the wakf property any expenses incurred by him. S. 38 also prescribes that the remedy against Mutawalli if he refuses to pay any revenue, cess, rates or taxes due to the Government as it is his duty prescribed under S. 36(d) of the Act, is to create and maintain the reserve fund from the income of the wakf as per the directions of the Board.

20. It may be noted that S. 60 prohibits any compromise without the sanction of the Board where the suit or the proceedings in any Court is filed by or against Mutawalli relating to the title of the wakf property or rights of the https://www.mhc.tn.gov.in/judis

65/119 C.R.P.(NPD).No.964 of 2016

Mutawalli. This section clearly implies that Mutawalli has right to file the suit relating to the title of the wakf property particularly when the compromise of such suit without sanction of the Board is barred. Thus, tooking to the scheme of the Act also it is clear that the Mutawalli has right to file a suit for the purpose of discharging the duties as Mutawalli for protecting wakf property and for administering the wakf property.”

68. This view taken by the Gujarat High Court has been approved

by this Court in Bibijan Vs. Anwarsha Idgah & Mosque Avuila Durgah,

Panruti, 2008 (8) MLJ 365 and M.K.Sulthan and others Vs. Hameed

Shafi and others, (2013) 3 MWN (civil) 20. Therefore, following these

judgments, I would hold that a Muthavalli is entitled to file a suit for

protection of Wakf or its properties. Consequently, the objection that

only the Wakf Board can file a suit and not a Muthavalli, deserves

rejection and is accordingly, rejected.

69. More importantly, Clause 7 of Ex.A3 reads as follows:

“7.that the Committee should initiate steps to evict

encroachments if any in the wakf properties.”

Similarly, under Ex.A4, Clause 7 reads as follows:

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66/119 C.R.P.(NPD).No.964 of 2016

“tf;/G nrhj;Jf;fspy; cs;s Mf;fpukpg;Gfs; VJk;

,Ug;gpd; mtw;iw mfw;w clNd eltbf;if Nkw;nfhs;s Ntz;Lk.;”

70. In other words, the committee which was appointed by the

Wakf Board has been directed to take steps in case any encroachments

are made over the Wakf property. Therefore, apart from the fact that a

worshipper can present a suit, on account of specific authorisation given

by the Wakf Board to the committee managing the plaintiff, I conclude

that they are entitled to maintain the suit.

71. It was argued that the power given to the Muthavalli to file the

suit was revoked under Ex.B9. I have gone through the original of

Ex.B9. Ex.B9 is a concocted document. It does not have the seal of the

Wakf Board. It has not been issued by the competent authority, namely,

the Wakf Board. It reeks of having been prepared for the purpose of the

case. Even if I were to assume Ex.B9 to be a genuine document, it still

will not help the case of the respondents. By an order passed by the

Wakf Board, a committee was appointed to manage the plaintiff. As per

the Waqf Act, the power to restrict the power of a Muthavalli is available

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67/119 C.R.P.(NPD).No.964 of 2016

only with the Wakf Board. The Chief Executive Officer cum Secretary of

the Wakf Board cannot exercise the power of interference with the order

of the Wakf Board, except in exceptional circumstances, contemplated

under Section 26 of the Waqf Act. That issue does not arise in the

present case. The committee of the plaintiff having been appointed by

the Wakf Board, their power cannot be restricted by an alleged letter

issued by the Chief Executive Officer.

72. Apart from that, the alleged proceedings filed by the eighth

defendant shows the following discrepancies:

(i) It is not on the letter pad of the Tamil Nadu Waqf Board;

(ii) It speaks about an “opinion report” from “the most senior

Advocate”. The said opinion has not been enclosed along with the letter;

(iii) The name of the Wakf itself has been wrongly mentioned as

“Jothi Madam” and finally,

(iv) It states that the Tamil Nadu Wakf Board is not the owner of

the property.

73. It is nobody's case that the Tamil Nadu Wakf Board is the

owner of any property in Tamil Nadu. The Wakf Board is only a

statutory and supervisory authority created by the Wakf Act of 1954 and https://www.mhc.tn.gov.in/judis

68/119 C.R.P.(NPD).No.964 of 2016 Waqf Act of 1995, for the purpose of ensuring that a Wakf is carried on

for the purpose for which it has been created.

74. A perusal of Ex.B9 shows that it is a vain attempt created by

the eighth defendant to create a document for the purpose of this case.

Hence, the argument that the Muthavalli cannot file a suit on the basis of

Ex.B9 is rejected. Apart from that, the cause of action of a suit has to be

determined on the date of presentation of the plaint. The plaint was

presented in 2008 and the alleged letter is said to have been given in

2013. In any event, as worshippers in the Mosque, the committee

members of the plaintiff can file a suit.

Whether the plaintiff Ahale Sunnathwal Jamath Jogi Madam Masjid

and Durga Gudiyattam is different from Jogi Madam Masjid and

Durga:

75. The learned Wakf Tribunal had come to two conclusions. The

first conclusion being that Ahale Sunnathwal Jamath Jogi Madam Masjid

and Durga Gudiyattam is different from the Jogi Madam Mosque and that

it is an unregistered Wakf and therefore, he dismissed the suit. He held:-

(i) that the plaintiff cannot have a claim over the properties of Jogi https://www.mhc.tn.gov.in/judis

69/119 C.R.P.(NPD).No.964 of 2016

Madam Wakf and

(ii) being an unregistered Wakf, the suit is barred under Section 87

of the Waqf Act of 1995.

76. A perusal of the survey report, the proforma as well as the

notification would reveal that Jogi Madam Masjid and Durga is a

registered Wakf. The proforma would show that Jogi Madam Masjid and

Durga is a Sunni Wakf.

77. The word “Ahl” or “Ahle” is of Urdu origin. The meaning of

the word “Ahl” in Urdu means “people, person, member or individual”.

Ahl/Ahle Sunnath means a member or a person, who is an observer of

law, namely, of the holy Quaran and the Sunnath or practices left behind

by the Holy Prophet. Ahle Sunnathwal means that the persons belonging

to a Masjid belong to the Sunni persuasion. Giving this as a prefix to

'Jogi Madam Masjid and Durga' implies that Jogi Madam Masjid and

Durga is of the Sunni persuasion. This nomenclature and classification

(whether Sunni or Shia) tallies with the proforma. The Tribunal fell in

error in construing that the prefix “Ahl/Ahle Sunnathwal” to the word

'Jogi Madam' makes two different Wakfs. Had, the learned Judge, the https://www.mhc.tn.gov.in/judis

70/119 C.R.P.(NPD).No.964 of 2016

benefit that I had of Urdu dictionaries, which I will refer to shortly,

perhaps, he would not have fell into this error.

78. Similarly, 'Jamat' also is not of Indian origin It has its roots in

Arabic and it came into our usage through Urdu. 'Jamat' means a

congregation with a common intention. Jamat is now popularly being

used in India to refer to those who belong to Islamic persuasion, who

gather in a named Mosque for the purpose of offering prayers. A person

in Islam joins a Jamat for several purposes. Being a member of the

Jamat, a person is entitled to have his name registered in the Nikah

register or marriage register. They are also entitled to bury their dead in

the Kabristan or graveyard attached to the said Mosque. For these

services rendered by the Mosque, a member of the Jamat pays a

re;jh/jiyf;fl;L or loosely called as subscription. However, payment

of a subscription is not condition precedent to be a member of a Jamat. A

Masjid has particular boundaries, which used to be fixed in custom,

nowadays being fixed by the Wakf Board. The reading of 'Ahle

Sunnathwal Jogi Madam Masjid and Durga' means that it is a

congregation of Muslims/believers in Sunni Islam in a Mosque termed as

“Jogi Madam Masjid and Durga”.

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71/119 C.R.P.(NPD).No.964 of 2016

79. In order to reach this conclusion, I referred to the Concise

Twentieth Century Dictionary of Urdu to English, Millenium Edition,

published by Islamic Book Service (P) Ltd., Darya Ganj, New Delhi -2

(Reprint Edition 2010). This dictionary defines 'Ahl' as follows:

“Ahl: People; citizens; master”

In order to confirm the same, I also referred to the Pioneer's Practical

Dictionary (Urdu to English) revised by Prof.R.L.Bhatia and

S.K.Sachdeva, published by J.S.Sant Singh and Sons, Publishers and

Booksellers, Churiwalan, Delhi – 6. The said dictionary has given the

meaning of both the terms “Ahl” as well as “Jamaat”. For ready

reference, they are extracted as follows:

“Ahl : Citizen, inhabitant, people, adj. Capable, suitable, deserving; Eg: these people are capable of legal investigation, People of God, saints, faqirs, Inhabitants of the house or family.” “Jamaat : A meeting, an assembly, a society;

unregistered society; class-fellor; An incorporated company” Therefore, the conclusion that one can arrive at is that 'Ahale Sunnathwal

Jamat' means that the Wakf belongs to members of the group following https://www.mhc.tn.gov.in/judis

72/119 C.R.P.(NPD).No.964 of 2016

the Sunni faith. It is not a separate Wakf and therefore, the question of

its registration does not arise.

80. Thus, the conclusion of the learned Judge that Jogi Madam

Masjid and Durga is different from Ahale Sunnathwal Jamat Jogi Madam

Masjid and Durga, is erroneous and perverse. Therefore, the question of

having separate registrations does not arise. This being the basis for the

dismissal of the suit, I find the same falls within the teeth of

perverseness.

Lack of pleadings:

81. The suit had been dismissed on the ground that Ahale

Sunnathwal Jamat Jogi Madam Masjid and Durga, Gudiyattam is

different from Jogi Madam Masjid and Durga, Gudiyattam. It is

pertinent to point out that though the defendants 1 to 8 filed a long and

lengthy written statement, nowhere, have they pleaded that there are two

institutions, namely, a registered Wakf by name Jogi Madam Masjid and

Durga, Gudiyattam and an unregistered Wakf, by name, Ahale

Sunnathwal Jamat Jogi Madam Masjid and Durga, Gudiyattam. In fact,

since this pleading had not been raised, no issue was framed as to https://www.mhc.tn.gov.in/judis

73/119 C.R.P.(NPD).No.964 of 2016

whether there are two different Wakfs.

82. It is settled position of law that where there are no pleadings,

the question of looking into evidence does not arise. Further, when there

are no pleadings or issues framed by the Court, the Court cannot dismiss

the suit on an issue, which had not been framed or put to either party.

The purpose of the Code of Civil Procedure is for a proper conduct of the

suit. It is a code of fairness. The Code of Civil Procedure has been

accused of being lengthy, but one has to appreciate that the framers went

into such length only in order to ensure that the suit proceeds in a proper

and fair manner. A litigation is no cinematic trial for a litigant to be

taken by surprise. The Tribunal fell in error in dismissing the suit by

answering a question, which was never raised between the parties.

83. It is here that the view taken by the Supreme Court in the case

of Ram Sarup Gupta Vs. Bishun Narain Inter College, (1987) 2 SCC

555, becomes relevant and is extracted as follows:

“6. ...It is well settled that in the absence of

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74/119 C.R.P.(NPD).No.964 of 2016

pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Some times, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open

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to a party to raise the question of absence of pleadings in appeal.”

84. Applying this judgment, the Supreme Court in the case of

Bachhaj Nahar Vs. Nilima Mandal and another, (2008) 17 SCC 491,

reiterated the fundamental principle of law of pleadings. The said

position has been relied upon by Mr.P.V.Balasubramaniam and I feel that

it applies to the present case in all force. The same is extracted

hereunder:

“10. ....The rules breached are:

(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject-matter of an issue, cannot be decided by the court.

(ii) A court cannot make out a case not pleaded.

The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.”

85. Mr.N.Manokaran would argue that where parties have joined

in issue, pleadings become irrelevant. It is true that, that position of law https://www.mhc.tn.gov.in/judis

76/119 C.R.P.(NPD).No.964 of 2016

also exists, but as pointed out above, such a pleading on two different

Wakfs existing in Gudiyattam had never been raised by any of the parties

to the litigation. It is only in the judgment that the said finding had been

given.

86. While there are several authorities which laid down the

position that without pleadings or issues, the Court cannot answer a

question, it would be suffice to refer to a recent judgment of the Supreme

Court in the case of Shivaji Balaram Haibatti Vs. Avinash Maruthi

Pawar, (2018) 11 SCC 652. The relevant portion for this case in

paragraph no.26 is extracted below:

''26. ...It is a settled principle of law that the parties to the suit cannot travel beyond the pleadings so also the court cannot record any finding on the issues which are not part of pleadings. In other words, the court has to record the findings only on the issues which are part of the pleadings on which parties are contesting the case. Any finding recorded on an issue dehors the pleadings is without jurisdiction.”

87. The defendants 1 to 8 and 20 did not dispute the existence of

the institution called Jogi Madam Wakf. Their defence was that the

properties are Trust properties. I have to recollect the argument of https://www.mhc.tn.gov.in/judis

77/119 C.R.P.(NPD).No.964 of 2016

Mr.N.Manokaran that the properties are not Wakf properties, but Trust

properties. It was in this light that Mr.N.Manokaran relied upon the

judgment of the Supreme Court in Nawab Zain Yar Jung and others Vs.

Director of Endowments and another, AIR 1963 SC 985 and the

judgments which have followed this position thereafter.

88. The judgments relied upon by him do not apply to the facts of

the case as those were cases, where a Muslim had created a Trust and it

was sought to be argued that the Trust is also a Wakf property. The

Supreme Court and other High Courts rejected this argument and held

that it is always open to a Muslim to create a secular Trust. If such a

secular Trust is created, it will not be covered by the Wakf Act. No one

can quarrel this proposition as in a secular country, a person has right to

create a religious institution or a secular one. But none of these will

apply to the facts of the present case, since neither Haji Katheef Syed

Hussain Sahib, the grandfather of the defendants 1 to 7 nor his six sons,

had created a Trust.

89. As discussed above, all of them were service inam holders of a

property, which had been declared by the then Commissioner, as would https://www.mhc.tn.gov.in/judis

78/119 C.R.P.(NPD).No.964 of 2016

be seen later, as early as 1864 as service inam.

90. Having disposed off this point, I now turn to the aspect on the

pleadings, which I have discussed earlier. The Court went to give a

finding that the plaintiff and the Jogi Madam Wakf are two different

entities. I have already pointed out that it is not a subject matter of

pleadings or issue. Since the Wakf Tribunal has dismissed the suit on

this ground, I am constrained to answer that issue also.

Previous litigations with respect to the suit schedule property:

91. This is not the first time, the family of the defendants 1 to 6

have approached the Court. As seen from Ex.A58, the office of

Muthavalli was to be enjoyed by way of turns amongst the sons of Haji

Katheef Syed Hussain Sahib. There arose a dispute as to who should be

a Muthavalli. This resulted in filing of O.S.No.1355 of 1969 and

O.S.No.362 of 1970 on the file of the learned District Munsif Court at

Vellore.

Filing of O.S.No.1355 of 1969 and O.S.No.362 of 1970:

92. O.S.No.1355 of 1969 was suit for a declaration that Kazi Syed

Abbas Hussain Sahib was the hereditary trustee and Muthavalli of the

plaint mentioned Mosque and Durga. Syed Abbas Hussain is the first https://www.mhc.tn.gov.in/judis

79/119 C.R.P.(NPD).No.964 of 2016

son of Kazi Syed Hussain. He filed this suit against his sibling and

younger brother Syed Siddhique Hussain.

93. In turn, Syed Siddhique Hussain filed a suit for declaration in

O.S.No.362 of 1970 that he is the trustee of item 3 of the plaint schedule

property and to deliver possession of the same.

94. The suit in O.S.No.1355 of 1969 came to be dismissed and the

suit filed in O.S.No.362 of 1970 came to be decreed by a common

judgment delivered on 08.12.1972.

95. It is pertinent to point out that during the course of discussion,

the learned District Munsif entered a specific finding that the suit

schedule mentioned properties had been given as a service inam to Jogi

Madam Mosque Idgah and Shah Jamaluddin Shah Avalia Durga. The

decree in O.S.No.362 of 1970 had been exhibited before the Wakf

Tribunal as Ex.A62. The third item of the suit property is the present suit

schedule mentioned property.

96. Against the judgment and decree in O.S.No.362 of 1970, an https://www.mhc.tn.gov.in/judis

80/119 C.R.P.(NPD).No.964 of 2016

appeal had been preferred before the learned District Judge of North

Arcot at Vellore. By an order dated 24.11.1973, the appeal preferred by

Syed Abbas Hussain was dismissed as not pressed, confirming the

judgment and decree in O.S.No.362 of 1970 dated 08.12.1972.

97. A combined reading of Ex.A59 to A64 leads me to the

conclusion that the predecessors in title of the defendants 1 to 6 had

treated the property as that belonging to the Waqf, namely, Jogi Madam

Mosque Idgah and Shah Jamaluddin Shah Avalia Durga and had taken to

litigate only the right to perform the duty of the Muthavalli. They never

staked a personal claim or title over the suit schedule property. By

reading Ex.A59 to Ex.A64 along with the fact that the Muthavallis did

not file a suit as required under Section 6 of the Wakf Act of 1954, I

necessarily have to come to the irresistible conclusion that the family of

the defendants 1 to 6 had treated the property only as that belonging to

the Jogi Madam Mosque and Durga.

98. Another factor which I have to notice is that even after the

notification that had been issued under Section 5(2) of the Wakf Act by

the State of Madras, the Muthavallis, as late as 1998, treated the suit https://www.mhc.tn.gov.in/judis

81/119 C.R.P.(NPD).No.964 of 2016

schedule mentioned property only as a Wakf. This is clear from Ex.A50

dated 22.02.1998. This document is a lease agreement between the

Muthavallis of Jogi Madam, namely, Janab A.Abdul Rasheed Sahib and

Janab A.Abdul Gani Sahib and one C.Rajan, who was running a circus in

the suit schedule property. The relevant portion of Ex.A50 reads as

follows:

We 1)ABDUL RASHEED S/o.ABDUL AZEEZ Muthavalli and 2) A.ABDUL GANI S/o. M.ABDUL AZEEZ Secretary of Jogimadam Mosque, Jamalabad, Gudiyattam, have by based out our Masjid open land Survey No.669/2 to M/s.GREAT BOMBAY CIRCUS to exhibit their Circus shows for a period of one month from 27-02-1998 to 29- 03-1998.

Therefore, as late as 27.02.1998, the property was treated as a Wakf

property. The original of the document has been produced before the

Court. It is from the proper custody of the Muthavallis. No reasons have

been put forth at the time of arguments by the learned counsel for the

respondents as to why this document should not be accepted. I am not

coming to this conclusion that the property was treated as a Wakf

property only on the basis of Ex.A50. I am reading it along with the

other documents referred to above including Ex.A59 to Ex.A64, in order

to reach the conclusion that the Muthavallis of the Wakf had always https://www.mhc.tn.gov.in/judis

82/119 C.R.P.(NPD).No.964 of 2016

treated this property as a Wakf property and not as a separate property

belonging to the family.

Is misdescription of parties fatal?

99. In this case, the registered Wakf is Jogi Madam Masjid and

Durga, Gudiyattam. However, the suit was presented in the name of

Ahale Sunnathwal Jamath Jogi Madam Masjid and Durga, Gudiyattam.

As pointed out above, there is no difference between two entities.

However, since the Tribunal had elaborated on a core detail on the issue

of misdescription of the party, I have to see whether the misdescription is

fatal. I have already seen that the plaintiff and the defendants had not

been misled by the description, at best, it is a mere error. The defendants

were well aware against whom they were litigating.

100. The position where parties understand as to against whom

they are fighting, has been settled by a Division Bench of the Patna High

Court in the case of Radhe Lal Vs. East Indian Railway Company

Limited, ILR (1926) 5 Pat 128:AIR 1926 Pat 40. The learned Division

Bench was pleased to hold as follows:

“If a plaintiff deliberately choses to sue not the Company but the Agent he cannot by any decree which he obtains in

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83/119 C.R.P.(NPD).No.964 of 2016

the suit bind the Company. If, however, upon a fair reading of the plaint it is made out that the description of the defendant is a mere error and that the Company is the real defendant then the suit may proceed against the Company.”

101. This view is not an isolated view and had found acceptance in

the case of the Andhra Pradesh State Electricity Board and others Vs.

the firm of M/s.Patel and Patel and others, AIR 1977 AP 172, which is

relevant for the purpose of the case, which I extract as hereunder:

“30. A decision of the Patna High Court in the case of Radhelal v. East Indian Rly., AIR 1926 Pat 40, was relied upon for the purpose of showing that if upon a fair reading of the plaint it is made out that the description of the defendant is a mere error and that the company is the real defendant, then the suit may proceed against the company.

31. What is manifest from the aforesaid authorities is that the provisions of the Code of Civil Procedure are intended to defend but not to defeat the substantial justice. It is the substance that has got to be looked into but not the form in which the pleadings are drafted. The Court is always competent to correct mere errors of description under the provisions of the Code of Civil

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Procedure, particularly under Order 1, Rule 10 of the CPC. Mere correction of errors as regards description does not involve any addition or substitution of parties as to attract the inhibition of the provisions contained in Section 21 of the present Limitation Act. If it could be gathered from a reading of the pleadings and the antecedent circumstances that it is the Board that was intended to be sued, then the amendment of the cause title to the effect that “The Andhra Pradesh State Electricity Board represented by” does not substitute any addition or substitution of a new party. Therefore, the suit as against the Board must be taken to have been instituted from the date when the suit was originally instituted but not from the date when the amendment was ordered by the court.”

102. Apart from these precedents, the Supreme Court has clearly

and categorically laid down the position that where parties are not misled

in any manner by the description in the pleadings, then the Court should

not dismiss the suit. This was laid down in the case of Patasibai and

others Vs. Ratanlal, (1990) 2 SCC 42. The relevant portion is extracted

hereunder:

“11. We shall, therefore, now refer to the grounds mentioned in para 6 of the plaint which alone are relied on https://www.mhc.tn.gov.in/judis

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to disclose a cause of action for the suit. The first ground of nullity averred in para 6 of the plaint is that the decree was passed against a non-existent person— “M/s Damdoolal and Bros”. It is not the respondent's case that “M/s Damdoolal and Bros.” is a legal entity distinct from “M/s Ratanlal Damdoolal and Bros.” so that the decree was against another person. As earlier stated, in the written statement filed by respondent Ratanlal, the description of defendant 2 was correctly given by respondent Ratanlal himself as “M/s Ratanlal Damdoolal and Bros.” and not “M/s Damdoolal and Bros”. Moreover, an order dated August 19, 1955 was made by the trial court permitting the correction to be made even though it was not duly incorporated in the plaint thereafter. It is significant that the first appeal and the second appeal filed against the compromise decree were by the respondent in which the firm as one of the appellants was correctly described as “M/s Ratanlal Damdoolal and Bros.” and not “M/s Damdoolal and Bros”. The decree was, therefore, against “M/s Ratanlal Damdoolal and Bros.” and this is how it was admittedly understood throughout by the respondent himself who represented the firm at every stage of the earlier suit till the final decision by the High Court, describing the firm correctly as “M/s Ratanlal Damdoolal and Bros”. Obviously this ground is non-existent.”

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103. Above all, the Supreme Court has specifically laid down that

a misdescription of a party will not be fatal to the maintainability of a

suit or proceedings in the case of Chief Conservator of Forests Vs.

Collector and others, (2003) 3 SCC 472. I have already discussed above

that the prefix “Ahale Sunnathwal Jamath” is a mere description of the

institution of Jogi Madam Mosque and Durga. It does not mean that

there are two separate entities. All that remains to be pointed out in this

issue is that as held repeatedly by the Supreme Court and re-affirmed in

the case of Varun Pahwa Vs. Renu Chaudhary, (2019) 15 SCC 628,

that “rules of procedure are handmaid of justice and cannot defeat the

substantive right of parties”.

104. Having come to the conclusion that the Jogi Madam Wakf

obtained the property by way of an inam several centuries ago and the

said property had been litigated upon where the right of Jogi Madam was

recognized, I feel that the non-suiting of the plaintiff on the ground of

misdescription defeats substantive rights of the plaintiff.

Source of title of the eighth defendant:

105. Having come to the conclusion that it is an inam property, in

order to give a fair opportunity to the defendants 1 to 8 and 20, I called https://www.mhc.tn.gov.in/judis

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upon the counsels as to what basis they claim title to the property.

106. Mr.N.Manokaran argued that their title to the property is by

virtue of two documents, namely, the deed of trust that had been created

under Ex.A2 and decree in S.A.No.1198 of 1951.

107. As discussed above, Ex.A2 does not create a Trust, but only

operates as a transfer of office of Muthavalli by Haji Katheef Syed

Hussain Sahib in favour of his six sons.

108. Mr.N.Manokaran would then draw my attention to a suit in

O.S.No.667 of 1942 and would claim that by virtue of the said judgment,

the property vested with the six sons of Haji Katheef Syed Hussain

Sahib. He produced the certified copy of the judgment and decree in

A.S.No.29 of 1950 on the file of the learned Subordinate Judge at Vellore

(originally presented as A.S.No.305 of 1949 on the file of the District

Court at Vellore). I pointed out that this document had not been filed by

the defendants before the Trial Court. Mr.P.V.Balasubramaniam did not

have any objection for receipt of the same.

109. In addition, Mr.N.Manokaran pointed out that against the

judgment and decree in A.S.No.29 of 1950, a Second Appeal had been

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preferred before this Court in S.A.No.1198 of 1951 and reference had

been made to the said judgment and decree in the proforma report that

had been filed by the Wakf Board. He drew my attention to the sale deed

filed as Ex.B2. Under Ex.B2, the description of property is given as

follows:

“,jd; nrhj;J tptuj;jpy; tpthpf;fg;gl;Ls;s nrhj;jhdJ NtY}H> khtl;l chpikapay; ePjpkd;wk;

O.S.No.667/1942> NtY}H rghHbNdl; [l;[; NfhHl;

A.S.No.29/1950> khtl;l Kdp]pg; NfhHl; A.S.No.305/1949> nrd;id caHePjpkd;w

S.A.No.1198/1951> cj;jpuTfspd; gb ghj;jpag;gl;l nrhj;J fh[p iraj; e[PH `{Nrd; rhaT mtHfs; ngahpy; efuhl;rp gl;lh ngaH gjpTngw;W> epythp nrYj;jp jd; RthjPdj;jpy; itj;J Mz;L mDgtpj;J te;J nrd;w 05.04.1965-k; Njjpapy; fhykhfptpl;lhH.”

The same is translated in english as follows:

“The properties found in the schedule of this deed were the subject matter of the suit in O.S.No.667/1942 on the file of the District Munsif Court, Vellore, A.S.No.29/1950 on the file of the Subordinate Judge Court at Vellore, A.S.No.305/1949 on the file of the District Munsif Court and that of the High Court at Chennai in S.A.No.1198/1951. As per the decree of the Courts, patta was granted in favour of Haji Katheef Syed Hussain Sahib by the Municipality and he enjoyed the same by payment of taxes. He passed away on 05.04.1965.” https://www.mhc.tn.gov.in/judis

89/119 C.R.P.(NPD).No.964 of 2016

This shows that the defendants 1 to 6 claim the property by virtue of the

judgment and decree in O.S.No.667/1942 on the file of the learned

District Munsif at Vellore, A.S.No.305/1949 on the file of the learned

Subordinate Judge at Vellore and S.A.No.1198 of 1951 on the file of this

Court.

110. In the light of the issue specifically framed by the Supreme

Court in this case in S.L.P(Civil)No.26058 of 2010 dated 12.07.2013,

that it was the duty of the Tribunal to decide whether the character of the

property is a Wakf property or not, however, it failed to discharge the

said duty. Hence, I find that the receipt of the judgment and decree given

by Mr.N.Manokaran is essential to pronounce a judgment in terms of

Order 41 Rule 27(1b) CPC. I find this necessary in order to answer the

issue framed by the Supreme Court. The said Court has held in Badami

Devi v. Ambuja Raghavan, (2001) 9 SCC 245, that Order 41 Rule 27

CPC can be invoked by a revisional Court. This is especially so in this

case, because appeal under Section 96 CPC is barred against the decree

of a Wakf Tribunal. The only remedy available to an aggrieved person is

to file a revision before this Court under Section 83(9) proviso of the

Waqf Act read with Article 227 of the Constitution of India.

111. For this proposition, I rely upon the judgment of a https://www.mhc.tn.gov.in/judis

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Constitutional Bench of the Supreme Court in the case of

K.Venkataramiah Vs. A.Seetharama Reddy and others, AIR 1963 SC

1526. The judgment and decree in the appeal and the Second Appeal are

taken on file with the consent of both the parties and are marked as

Ex.B19 to Ex.B21. The judgment in A.S.No.29 of 1950 is marked as

Ex.B19 and the decree is marked as Ex.B20. Similarly, the extract of the

High Court decree in S.A.No.1198 of 1951 is received as Ex.B21.

112. An issue would arise whether the procedure under Order 41

Rule 28 CPC has to be followed here. From the discussions above, it is

clear that the documents received as additional evidence were produced

by the learned counsel for the respondents and the learned counsel for

the civil revision petitioner had no objection to receive the same. When

additional evidence is taken with the assent of both parties with respect

to the documents as well as the contents thereof, I feel that the procedure

under Order 41 Rule 28 CPC need not be adhered to in this case, this is

especially so since the parties have consented to the admissibility and

proof of the additional documents.

113. It is pertinent to point out that the documents are not

something new, which would have taken the civil revision petitioner

aback because they have filed the suit register extract in O.S.No.667 of https://www.mhc.tn.gov.in/judis

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1942 on the file of the District Munsif Court at Vellore as Ex.A48.

Hence, I find the necessity to admit it as I find them as essential

evidences and admit them in terms of Order 41 Rule 27(1)(b) CPC.

114. A careful perusal of the judgment in A.S.No.29 of 1950 dated

14.10.1950 shows that a suit for declaration had been filed by the

Municipal Council of Gudiyattam against Kazi Syed Abbas Hussain and

his brothers. The suit had been decreed by the Trial Court and Kazi Syed

Abbas Hussain and his brothers had preferred A.S.No.29 of 1950. The

suit property in the said judgment is the suit property in the present suit.

It is a judgment between the ancestors of the vendors of the defendants 8

and 20 and the Municipal Council of Gudiyattam. Therefore, the

judgment and decree can be looked into as it is permitted under Section

13 of the Indian Evidence Act.

115. It has been held by the Supreme Court that such a judgment is

admissible (Srinivas Krishnarao Kango Vs. Narayan Devji Kango and

others – AIR 1954 SC 379 and Tirumala Tirupati Devasthanams Vs.

K.M. Krishnaiah, AIR 1998 SC 1132 – paragraph 9). In Mahant Sital

Das Vs. Sant Ram and others, AIR 1954 SC 606, the Supreme Court has https://www.mhc.tn.gov.in/judis

92/119 C.R.P.(NPD).No.964 of 2016

held that the previous judgment, in which the deceased predecessors

were parties, was admissible as a “transaction” as the nature of right

asserted by the party and on which he was successful in obtaining a

decree.

116. O.S.No.667 of 1942 on the file of the District Munsif Court,

Vellore was originally a suit for injunction filed by the Municipality. It

was subsequently amended as a suit for declaration of title. In the said

suit, the predecessors of the defendants 1 to 6 had specifically pleaded

that the entire extent of 5 acres and 1 cent belonged to Jogi Madam and

that in one portion of the property, the Municipal Council had

constructed a traveller's bungalow. The ancestors of the defendants 1 to

6 had contested the suit as trustees of the Jogi Madam. It is pertinent to

point out that the predecessors in title to the defendants 1 to 6 did not

assert an independent title, but had claimed the property only as trustees

of Jogi Madam. The Wakf Board had not been made a party to the suit

because when the suit had been presented, no Wakf Board had been

created. The suit is of the year 1942 and the Tamil Nadu Wakf Board

came into existence on 18.01.1958, as per Wakf Act, 1954.

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117. The Muthawallis had specifically pleaded that the Jogi

Madam had constructed a travellers bungalow and had permitted the

local fund department to use the building. Since the Municipality/the

plaintiff in O.S.No.667/1942 asserted title to the building, the licence

was revoked. In other words, the Court in that proceeding was called

upon to decide the title of the Municipality. The suit was decreed,

against which a regular appeal had been filed.

118. In the appeal, the following findings were given:

(i) T.S.No.669 of an extent of 5 acres and 1 cent is an inam land

belonging to the Jogi Madam Masjid. An extract from the Inams Register

shows that this land along with other lands were given as “Sarva

manyam”1 to the Jogi Madam Masjid for the purpose of keeping lights

regularly in the Masjid and performing other services as well as keeping

the institution well-maintained, (Ex.D-2).

(ii) In the extract of the permanent register of Inams, the extent of

the suit land is given as 5 acres and 10 cents and the kist as Rs.8-12-0

and it is mentioned that the land had been given for the purpose of

building Masjid etc., Ex.D-3.

1 Manyam means inam. Depending upon the remission, the grants are classified as Sarva manyam, Artha and Chathurbhagam.

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(iii) Again in the extract of the B register, Chittoor District, the

extent of the land is given as 5 acres and 1 cent and the kist as Rs.8-12-0

and the name of the Inamdar is Fakruddin. Ex.D-4.

(iv) From a judgment given in O.S.No.1 of 1895, Ex.P-15, it is

seen that in fact for the Jogi Madam, four villages Thoziyatham,

Siruvangi, Melalathur and Gudiyatham were granted as inam. In the

plaint filed in that suit, the plaintiff also claimed that for the purpose of

services in the Jogi Madam Masjid, Shaja Mahddin Durga Makkan in the

Village of Thoziyatham, these villages have been granted.

(v) The inam title deeds still stand in the name of the mosque.

On the basis of these findings, the first appeal was allowed and the suit

was dismissed.

119. Aggrieved by the same, a Second Appeal was preferred before

the High Court, wherein, the following decree was passed on

26.09.1955:

“Extract of High Court's decree in S.A.1198/51 and C.M.P.7041/55, dated 26-9-55.

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1. That the Municipal Council, Gudiyattam, the appellant herein do surrender to the respondents and give vacant https://www.mhc.tn.gov.in/judis

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possession within six weeks from the date of this decree recording the compromise the plot measuring 60 feet east to west on the eastern side of the suit plot to its entire north to west length and coloured orange in the plan annexed herewith;

2. That such possession shall be delivered within 6 weeks from this date and that if possession is not delivered then the respondents shall be at liberty to execute this decree and that the right of the respondents to obtain possession shall be subject to what is stated in clause 3 infra;

3. That in respect of the costs of the lower Courts collected by the respondents (defendants) from the appellant (plaintiff) the respondents shall be entitled to adjust a sum of Rs.25/- towards the value of the usufruct of the trees in the plot now surrendered and shall refund to the plaintiff the balance amount of costs collected by them before taking possession.

4. That the respondent hereby affirm the tile and possession of the appellant (plaintiff) to the green marked portion in the disputed – plot and to the buildings thereon as shown in the plan annexed herewith;

5. That each party hereby affirms the title of the other to the respective plots,

6. That each party do bear their own costs throughout subject to directions contained in clause 3 supra.

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(True extract) (By Order) Sherishtadar.

Sub Court, Vellore. 10/12/55.”

120. This makes it clear that by virtue of this compromise, the

property over which the Municipal Council had constructed a travellers

bungalow existed, belongs to the Municipal Council of Gudiyattam and

the remaining portion was to go to the defendants, who contested the suit

as the trustees of Jogi Madam Mosque. The present suit is with respect

to that remaining portion and it was in that light that the judgment and

decree from Ex.B19 to Ex.B21 become relevant for pronouncement of

judgment in this case.

121. The extract of the judgment in A.S.No.29 of 1950 shows the

character of the property as “Sarva manyam inam” as per the inam fair

register. In fact, the parwana (grant in persian) on the basis of which the

inam had been granted to the Jogi Madam Mosque and Durga had been

filed in the suit between Syed Abbas Hussain Sahib and Syed Siddique

Hussain Sahib, namely, O.S.No.1355 of 1969 and O.S.No.362 of 1970

on the file of the learned District Munsif at Vellore and exhibited in that https://www.mhc.tn.gov.in/judis

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suit as Ex.B66.

122. From the above discussion, it is clear that the Courts have

held from O.S.No.1 of 1895 till O.S.No.1355 of 1969 and O.S.No.362 of

1970 under Ex.A61 that it is an inam. Once the property is an inam

vested with the institution granted for performance of services, it will be

covered as a Wakf property within the meaning of Section 3(1) of the

Wakf Act of 1954.

123. This position has been settled by the judgment of the Andhra

Pradesh High Court in the case of R.Doraswamy Reddy Vs. Board of

Wakfs, (1978) 2 AP LJ 399. The relevant portion of the order reads as

follows:

“6. Section 3(1) of the Wakf Act, 1954 defines the ‘Wakf’ as follows:

“Wakf” means the permanent dedication by a person professing Islam 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) grants (including mashrut-ul khidmat) for any purpose recognised by the Muslim law as pious, religious or https://www.mhc.tn.gov.in/judis

98/119 C.R.P.(NPD).No.964 of 2016

charitable; and

(iii) a wakf al al-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable;

and ‘wakif means any person making such dedication.”

7. In order to constitute a wakf there should be (i) a permanent dedication by a person professing Islam; (ii) it may be of movable or immovable property; and (iii) it should be for a purpose recognised by the Muslim law as pious, religious or charitable.

8. Applying the definition to the facts of this case, immovable property is dedicated for a religious and charitable purpose. The name of the original grantor is not known. But there is no evidence to show that the grant was by a non-Muslim. D.W. 6, Khasim Khan had deposed that the suit property was inam property granted for performing the festival of Peerlu and his father was performing the festival and that after his death Ghouse Khan and himself have been performing the Peerlu festival. He had further stated that the suit property was owned by their ancestors and it was given by one Arcot Nawab to his ancestors to perform Peerlu festival.

9. Section 3(a) of the Wakf Act, 1954 defines ‘beneficiary’ as meaning a person or object for whose benefit a wakf is created and includes religious, poius and charitable objects and any other objects of public utility sanctioned by the

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Muslim Law. Section 3(b) of the Wakf Act, 1954 says that ‘benefit’ does not include any benefit which a mutawalli is entitle to claim solely by reason of his being such mutawalli.

10. Therefore ‘beneficiary’ can be a person or an object for whose benefit the wakf is created and it can include religious, pious and charitable objects and any other objects of public utility sanctioned by the Muslim Law. Celebration of Moharram festival and providing food and resting place for in inherent Fakirs are religious and charitable objects and those objects are ‘beneficiaries’ for whose benefit the wakf was created. Therefore I hold that the property in question satisfied the requirements of a wakf as defined by the Wakf Act, 1954 and it is wakf property.

11. In Jain Yar Jung v. Director of Endowments (1) AIR (1963) S.C. 985, the Supreme Court observed in paragraph 12:

“Similarly, the Muslim Law relating to trusts differs fundamentally from the English Law. According to Mr. Ameer Ali. “The Mohammadan Law owes its origin to a rule laid down by the Prophet of Islam; and means ‘the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings’. As a result of the creation of a wakf the right of wakf is extinguished and the ownership is transferred to the Almighty. The manager of the wakf is the muttawalli, the governor, superintendent or curator. But in that capacity, he has no right in the property belonging to the wakf; the

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property is not vested in him and he is not a trustee in the legal sense”.

Therefore, there is no doubt that the wakf to which the Act applies, is, in essential features, different from the trust as known to English law.”

12. Relying on these observations it is submitted by Sri Subrahmanya Reddy, that since in this case the property does not vest in the Almighty but it vests in the person who is to render service it is not a wakf. I am not able to agree with him. It is true that the land was granted to an individual to perform service. But it does not mean that the acquires title to that property. Similarly, if the land can be resumed for non- performance of service and can be regranted to another person for rendering service, it does not mean that the original grantor continues to be the owner of the property. When once the wakf was created it continues to be a wakf. When the inam is resumed and regranted it does not mean that there is revocation of the service. It only means that the wakf property is entrusted to another individual to perform the service.”

This judgment squarely applies to the facts of this case. The judgment

has been approved by the Supreme Court in the case of Sayyed Ali and

others Vs. A.P.Wakf Board, Hyderabad and others, (1998) 2 SCC 642.

The Supreme Court while reiterating the settled position of law that a

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property which is once a Wakf is always a Wakf, had held as follows:

“13. ..It may be stated that a wakf is a permanent dedication of property for purposes recognized by Muslim law as pious, religious or charitable and the property having been found as wakf would always retain its character as a wakf. In other words, once a wakf always a wakf and the grant of patta in favour of Mokhasadar under the Inams Act does not, in any manner, nullify the earlier dedication made of the property constituting the same as wakf. After a wakf has been created, it continues to be so for all time to come and further continues to be governed by the provisions of the Wakf Act and a grant of patta in favour of Mokhasadar does not affect the original character of the wakf property. We accordingly find no substance in the last argument of the learned counsel for the appellant.”

Oral Evidence of P.W.1 and P.W.2 and its effect:

124. Mr.N.Manokaran would contend that P.W.1 and P.W.2 in their

oral testimonies had not been able to substantiate their case pleaded in

the plaint.

125. P.W.1 is a person appointed by the Tamil Nadu Wakf Board to

manage the properties as a member of the Committee. As per the https://www.mhc.tn.gov.in/judis

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definition of a Muthavalli, a committee managing a Waqf is a

Muthavalli. A person who has been appointed in the 21st century can

obviously have no knowledge of a property which had been dedicated as

a Wakf at least several centuries ago. Fortunately, for the plaintiff, he has

exhibited the documents, which would substantiate his case. This is not

a case where a private title is sought to be asserted by P.W.1. He can, at

best, file the documents as a manager of the institution.

126. P.W.2 is an official witness and he has exhibited the

documents, which have been given to him, by virtue of his position in the

the Tamil Nadu Wakf Board. P.W.2 cannot have personal knowledge of

the documents because he is a servant of the Wakf Board. The Wakf

Board only maintains records of the Wakf property and is not the owner

of the Wakf property.

127. Apart from that, it is not open to the defendants to contest

official documents, which have been produced under Ex.A2, A69, A52,

A67, A68 and A66, which are all records maintained during the official

course of business. The Court, under Section 114 of the Indian Evidence https://www.mhc.tn.gov.in/judis

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Act, can in certain cases presume the genuinity of documents produced.

Perhaps P.W.1 and P.W.2 would not even have been born when the

notification was issued in the year 1959. Therefore, in the light of

unimpeachable title documents, I am constrained to reject the argument

of Mr.N.Manokaran.

Does the non-payment of contribution to the Wakf Board efface the

Wakf and its properties?

128. It was argued by Mr.N.Manokaran that since no proof of

contribution has been paid, it shows non-existence of a Wakf. The power

to levy contribution was under Chapter VI of the Wakf Act of 1954.

Section 46 dealt with annual contribution payable to the Wakf Board. As

per Section 46(1), it is the duty of a Muthavalli of a Wakf to pay annually

to the Wakf Board, the contribution not exceeding 6% of the annual

income for the service rendered by the Board to the Wakf. Under the

Waqf Act of 1995, contribution is levied under Section 72. In case

contribution is not paid, it does not mean that the Wakf ceases to exist.

Non-payment of contribution can be treated as a ground for removal of

the Muthavalli, but that does not mean that the Wakf that has been

created is effaced from the face of the earth. Once a Wakf is created, it is https://www.mhc.tn.gov.in/judis

104/119 C.R.P.(NPD).No.964 of 2016

always a Wakf.

129. The point very similar to the one urged by Mr.N.Manokaran

was dealt with by three authoritative precedents:

(i) Zainudeen Hossain Vs. Abdul Rahim, AIR 1933 Cal 102,

(ii) Beli Ram Vs. Mohammad Afzal, ILR (1949) Lah 1 and

(iii) Anjuman Islamia Vs. Latafat Ali and others, 1950 ILR ALL

1001.

A Division Bench of the Calcutta High Court held that “it is wholly

immaterial whether its provisions were carried out or not, for that is a

matter of breach of trust only”. Explaining the position, Sir John

Beaumount in Beli Ram's case held as follows:

“It is, no doubt, the law that the validity of a waqf involves that there was an intention to dedicate on the part of the waqif. Where there is evidence that the waqfnama has been retained by the waqif and never acted upon … such evidence may lead to an inference that no dedication of the waqif was ever intended, and that the deed was designed merely to provide a shield against possible claims ...On the other hand it is established law that once there is an effective dedication in waqf it can not be revoked; and it is

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obvious that breaches of trust on the part of a trustee, however numerous, and extending over however long a period, cannot put an end to the trust.”

These principles were applied in Anjuman's case and it was held that if a

Wakf is valid at its inception, it does not become invalid by subsequent

Acts.

130. If such is the position of law, even if a Wakf has not been

acted upon, I am unable to accept the contention of Mr.N.Manokaran that

no evidence of payment of contribution to the Waqf has been let in by the

Muthavalli, I have to presume that there is no Waqf. As discussed

elsewhere in this judgment, the property had been held as a inam

property by the civil courts right from O.S.No.1/1895 on the file of the

District Munsif Court at Vellore. Apart from that, both sides agree that a

Mosque and Durga exist in Survey No.701 of Gudiyattam Village.

Therefore, the Wakf having been in existence, the mere fact that

Muthavalli has not produced evidence to show payment of contribution

to the Wakf Board does not mean that the Wakf ceases to exist. Non-

payment of contribution for the service rendered by the Wakf Board to

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the Wakf may give a cause of action to the Wakf Board to proceed

against the Muthavalli and may lead to other consequences contemplated

under the Act. But, I am afraid that it will not have the effect of a

property, which is already vested in the Wakf, from being divested from

it.

131. Further, the argument that annual contribution of the Wakf

property has not been exhibited and therefore, I have to presume that it is

not a Wakf property, is liable to be rejected for the simple reason that

I am dealing with a case for declaration of title to the said property and

not a case of mismanagement of the Wakf property or removal of a

Muthavalli on the ground that he has not paid the annual contribution.

Whether the sale of the Wakf properties are valid:

132. The sale deeds were executed after 01.01.1996 when the

Waqf Act of 1995 had come into force. Section 51 of the Waqf Act reads

as follows:

“51. Alienation of wakf property without sanction of https://www.mhc.tn.gov.in/judis

107/119 C.R.P.(NPD).No.964 of 2016

Board to be void.— (1) Notwithstanding anything contained in the wakf deed, any gift, sale, exchange or mortgage of any immovable property which is wakf property, shall be void unless such gift, sale, exchange or mortgage is effected with the prior sanction of the Board: Provided that no mosque, dargah or khangah shall be gifted, sold, exchanged or mortgaged except in accordance with any law for the time being in force.”

This provision makes it clear that any sale of immovable property

without the prior sanction of the Wakf Board is void. Admittedly, in this

case, the defendants 1 to 6 had executed a power of attorney in favour of

the seventh defendant, who sold the property to the eighth defendant.

Similarly, the 20th defendant had also purchased the property from

K.S.Masood Ahmed Sahib. None of the sales with respect to the suit

schedule mentioned property had the sanction of the Wakf Board.

Therefore, the statute having declared such sale as void, I merely have to

apply Section 51(1) to the facts of this case and come to a conclusion

that the sale deeds executed by the defendants 1 to 6 are void and not

binding on the plaintiff Waqf.

Whether the suit is barred by time:

133. It was argued on behalf of the defendants that the suit is

barred by limitation. Insofar as the Limitation Act is concerned, I have to

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108/119 C.R.P.(NPD).No.964 of 2016

take note of Section 10 of the Limitation Act. The said Section reads as

follows:

“10. Suits against trustees and their representatives.— Notwithstanding anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time. Explanation.—For the purposes of this section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.”

By reading of this Section, if the property had vested in a person in Trust

for a specific purpose, then no suit against the said person will be barred

by any length of time.

134. The discussions in the aforesaid paragraphs would show that

the suit schedule mentioned property was endowed for the specific

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109/119 C.R.P.(NPD).No.964 of 2016

purpose of performing service in the Mosque and Durga. It had been

treated as such by the ancestors of the defendants 1 to 6. Therefore,

Section 10 would come into operation and the beneficiary of the service,

namely, the Wakf, can always institute a suit as against the persons

holding the property. This view of mine is supported by the judgments of

the Supreme Court in Faqir Mohamad Shah Vs. Qazi Fasihuddin

Ansari and others, AIR 1956 SC 713 and Wali Mohammed Vs. Rahmat

Bee and others, (1999) 3 SCC 145.

135. Even if one were to assume Section 10 of the Limitation Act

will not apply against the defendants 8 and 20, the relevant provision of

the Limitation Act that will apply is Article 94 of the Limitation Act,

which reads as follows:

Description of suit Period of Time from Limitation which period begins to run 94. To set aside a transfer of Twelve years When the immovable property transfer comprised in a Hindu, Muslim becomes known or Buddhist religious or to the plaintiff. charitable endowment, made by a manager thereof for a valuable consideration.

It prescribes a period of twelve years. This suit having been filed https://www.mhc.tn.gov.in/judis

110/119 C.R.P.(NPD).No.964 of 2016

immediately, is not barred by time.

136. Apart from that, the cloud over title of the Wakf property

commenced by virtue of the alienation made by the defendants 1 to 6 in

favour of the eighth defendant on 09.06.2008 and in favour of the 20th

defendant on 25.08.2008. The suit was filed on 22.10.2008. The suit has

been presented within a period of twelve years from the date of such

alienation. Furthermore, the eighth defendant got the property registered

pursuant to the orders of this Court in W.P.No.43631 of 2006. The Court

had permitted the registration subject to the proceedings that may be

initiated before the appropriate Tribunal. In pursuance thereof, the suit

has been presented. Therefore, the plea of limitation is an empty one and

I hold the suit is filed in time.

137. Furthermore, this is not a case where all the persons to whom

the service inam had been endowed, had joined together and had

executed a sale deed. The Supreme Court was pleased to hold in

L.Janakirama Iyer v. P.M.Nilakanta Iyer, AIR 1962 SC 633, that where

there are number of trustees and only a few of them had joined together

to convey the property, such an alienation would not be valid and no title https://www.mhc.tn.gov.in/judis

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would pass to the alienee. In any event, in this case, the defendants 8

and 20 had purchased the property with notice with the right of the

plaintiff Wakf. This is clear because it was only due to the objection that

was made by the State Wakf Board officials, the parties approached the

Writ Court by way of W.P.No.43631 of 2006. This shows that the

predecessors were well aware that the Wakf Board had made a claim

through the Wakf officials and still they persisted and purchased the

property.

Is Order 9 Rule 9 CPC a bar to the present suit?

138. The learned counsel would further argue that the suit which

had been filed against the 20th defendant in O.S.No.261 of 2008, Ex.B14,

having been dismissed for default, fresh suit for declaration of title is not

maintainable. Order 9 Rule 9 of the Code of Civil Procedure requires a

specific pleading.

139. Apart from that, Order 9 Rule 9 only bars the presentation of

a fresh suit on the same cause of action. From the judgment and decree

in the Second Appeal in S.A.No.1198 of 1951 as well as from Ex.A61, it

is clear that the Wakf has been in possession of the suit schedule property https://www.mhc.tn.gov.in/judis

112/119 C.R.P.(NPD).No.964 of 2016

and had been managed by the Muthavalli. It is trite that possession

follows title. Title having been established, I conclude the Waqf is in

possession of the property. Each time, a third party attempts to interfere

with the possession of the Wakf, it gives a new cause of action and

therefore, the fact that O.S.No.261 of 2008 or for the matter O.S.No.145

of 2005 had been dismissed for default does not affect the cause of action

of the present suit.

140. I have gone through Ex.B14. The cause of action for the said

suit is totally different from the cause of action in the present suit. Order

9 Rule 9 CPC applies only when the cause of action are identical. That

not being the position, the argument under Order 9 Rule 9 CPC has to

fail.

141. As to what is same cause of action has been very succinctly

discussed in L.A.Saunders Vs. Land Corporation of Bengal Limited,

AIR 1955 Cal 169. The relevant paragraphs are extracted below:

“13. It is worth noting that the decisions so considered included cases under O. 2 R. 2 and O. 9 R. 9 of the Code of 1908 and/or the corresponding section or sections of the old Code or Codes and the discussion was quite general & was not confined to any particular https://www.mhc.tn.gov.in/judis

113/119 C.R.P.(NPD).No.964 of 2016

provision. It is true that in ‘AIR 1949 PC 78 at p. 86 (C)’, of the Report their Lordships referred to ‘15 Ind App 156 (PC) (B)’, as a case under S. 43 of the Act 1882 corresponding to O. 2 R. 2 of the present Code, although it was a case under S. 103 of the old Act corresponding to the present O. 9 R. 9, but that was an obvious slip and did not in any way affect or detract from the generality of the meaning of the phrase ‘cause of action’ as laid down by their Lordships. It seems to me that this decision of the Judicial Committee is sufficient authority for the view that the phrase ‘the same cause of action’ has the same meaning in either of the said two provisions.

14. The cause of action must, of course, be ‘the cause of action which gives occasion for and forms the foundation of the suit’ but it includes the whole of the right and its infringement, in the light of the allegations in the plaint. The same cause of action would obviously imply identity of the cause of action the right and its infringement, as a whole and, although, in considering this question, the Courts will look to the substance of the matter any difference as to any essential part would be fatal to the proof of this identity. On this question of identity of the cause of action, or ‘the same cause of action’ a useful and convenient test not necessarily conclusive but certainly workable was also laid down by their Lordships, viz., whether the same evidence would support the claim in both

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114/119 C.R.P.(NPD).No.964 of 2016

the suits.”

Applying the aforesaid test to the present case, I am able to conclude that

the cause of action for the present suit and those filed under Ex.B14 are

not same.

142. Apart from that, this plea does not seem to have been taken

before the Trial Court, as no issues had been framed by the learned

Tribunal with respect to Order 9 Rule 9 CPC. That being the situation, I

am also bound to reject it, as new plea cannot be raised for the first time

in the revision. As pointed out from the first issue, the Supreme Court

has specifically held that this Court is not an Appellate Court, but is

conferred with the jurisdiction to test whether the order passed by the

Wakf Tribunal suffers from perversity or otherwise. The plea that has not

been taken before the Trial Court cannot be gone into for the first time in

the revision, except where it is a question of law. That being the

situation, even on this ground, I have to reject the plea under Order 9

Rule 9 CPC.

143. Further more, Section 83(6) of the Waqf Act reads as follows:

“83. Constitution of Tribunals, etc.— (6) Notwithstanding anything contained in the Code of

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115/119 C.R.P.(NPD).No.964 of 2016

Civil Procedure, 1908 (5 of 1908), the Tribunal shall follow such procedure as may be prescribed.”

This makes it clear that all the provisions of the Code of Civil Procedure

does not automatically apply to the Wakf Tribunal. It is only such

procedures as may be prescribed, which the Tribunal has to follow.

Therefore, the argument on Order 9 Rule 9 CPC which applies to Civil

Courts cannot be strictly applied to the Wakf Tribunal.

Conclusion:

144. In conclusion, this is an unfortunate case where the properties

belonging to a religious institution has been sold by those who had been

given the duty to take care of the same. I recall the judgment of the

Supreme Court in A.A. Gopalakrishnan v. Cochin Devaswom Board,

(2007) 7 SCC 482, where, it had dealt with a similar issue. The relevant

portion is extracted hereunder.

“10. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active https://www.mhc.tn.gov.in/judis

116/119 C.R.P.(NPD).No.964 of 2016

collusion of the authorities concerned. Such acts of “fences eating the crops” should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.”

This is a classic case where the defendants 1 to 6, who as holders of the

service inam, ought to have protected the property, have sold it. In other

words, as held by the Supreme Court in A.A.Gopalakrishnan's case, it is

a case of fence eating the crop.

145. In fine, I find that the learned Wakf Board Tribunal had

ignored the material evidence and had answered the issues, which have

not arisen for consideration in the suit and had erroneously dismissed the

suit. He had crucially failed to answer the issue directed to be framed by

the Supreme Court. I hold the verdict of the Tribunal suffers from

perversity. Therefore, I am constrained to interfere in exercise of the

powers vested in this Court under Section 83(9) proviso of the Waqf Act

read with Article 227 of the Constitution of India.

146. In the result, this Civil Revision Petition is allowed.

The judgment and decree passed in O.S.No.220 of 2008 dated

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117/119 C.R.P.(NPD).No.964 of 2016

17.02.2016 on the file of the Wakf Board Tribunal cum Subordinate

Court, Vellore is set aside. O.S.No.220 of 2008 on the file of the Wakf

Board Tribunal cum Subordinate Court, Vellore is decreed as prayed for.

Costs throughout.

14.12.2023

List of Exhibits filed by the respondents

Ex.B19 14.10.1950 Judgment in A.S.No.29 of 1950 on the file of the Subordinate Judge, Vellore Ex.B20 14.10.1950 Decree in A.S.No.29 of 1950 on the file of the Subordinate Judge, Vellore Ex.B21 26.09.1955 Extract of High Court's decree in S.A.No.1198 of 1951 Lm

Index: Yes/No Internet: Yes/No Speaking Order/Non-Speaking Order

To

The Wakf Board Tribunal/Subordinate Court, Vellore.

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118/119 C.R.P.(NPD).No.964 of 2016

V.LAKSHMINARAYANAN, J.

Lm

Order made in C.R.P.(NPD).No.964 of 2016

14.12.2023

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119/119