act of Mutawalli the defendant No.5 should not have appointed any
other person as Mutawalli in exercise of the power under Section 63
of the Wakf Act, 1995. The testator in his Will creating the Wakf did
not say anything about the performance of any spiritual duties but
simply stated about lighting of candle and maintenance of the
Mosque out of the income of the Wakf property and those can be
performed by any Mutawalli whether a male or female. From the
pleadings and evidence of defendant No.5 it is clear that only based
on the statement of the President and Secretary of the SubDivisional
Committee the defendant No.5 without having any
enquiry appointed Abdul Mannan Choudhury as Mutawali and
thereafter Abdul Hannan Choudhury as Mutawali which was not at
all called for. There is nothing in the Mahomedan Law as admitted
by the defendants also that a female cannot perform the act of
Mutawalli. The plaintiff admittedly being a descendent of the
testator Nachir Mohammed can perform the act of Mutawalli
irrespective of the fact that her mother died before the death of her
grandmother Esha Bibi. That point that Laila Bibi died before Esha
Bibi is not material point to be considered by the Court and I do not
find any importance to be attached on that issue. I have therefore
no hesitation to come to the conclusion that the plaintiff being the
legal representative of the testator Nachir Mohammad was/is
entitled to act as Mutawali of the Wakf property.
THE HIGH COURT OF TRIPURA
AGARTALA
RSA NO.67 OF 2008
Smt. Rahima Begam Choudhury,
-Vs –
The State of Tripura,
BEFORE
HON’BLE MR. JUSTICE S.C. DAS
Date of delivery of
Judgment & Order : 06.05.2015
Citation:AIR 2016(NOC) 549 Tri
This second appeal under Section 100 of the Code of
Civil Procedure, 1908 is directed against the judgment and decree
dated 22.08.2008 and 30.08.2008 respectively passed by learned
Addl. District Judge, North Tripura, Kailashahar in Title Appeal
No.08 of 2008 whereby and whereunder the learned Addl. District
Judge set aside the judgment and decree dated 17.01.2008 passed
by learned Civil Judge, Sr. Division, North Tripura, Kailashahar in
T.S. No.11 of 2007.
2. The second appeal has been admitted for hearing on
the following substantial questions of law:
“(a) Whether the private property can be declared as
wakf property without due process of law?
(b) Whether the Appellate Court below while exercising
appellate jurisdiction can consider a document not
exhibited in the trial court and can pass decree on the
basis of the same without affording any opportunity to
the plaintiff?
(c) Whether the finding of the first Appellate Court to
the effect that a female/lady cannot hold the post of
Mutawali is sustainable as per Islamic Law?”
Yes No
√
3. Heard learned senior counsel, Mr. A.C. Bhowmik for the
appellant and learned senior counsel, Mr. D. Chakraborty for the
respondents.
4. The appellant as plaintiff(hereinafter mentioned as
plaintiff) instituted Title Suit No.11 of 2007 against the
respondents(hereinafter mentioned as defendants) seeking
declaration of her title over the suit land described in the schedule
of the plaint measuring 8.45 acres.
5. The plaintiff in her pleadings, inter alia, contended that
her predecessor, Nachir Mohammed, son of late Kadir Mohammed
of village-Ichaibaruakandi under Sub-Division Dharmanagar,
executed a registered Will on 5th of Baishakh, 1315 T.E, about 100
years ago and thereby created a private Wakf of an area of land
measuring one and half drone and in the said Will the testator,
Nachir Mohammed clearly stated that from the income of the said
one and half drone of land the Mutawalli shall pay the Government
revenue and maintain the Ichaibaruakandi Jama Masjid set up by
said Nachir Mohammed, provide candlelight(cheregbati) and
facilitate performing of all religious performance and with the
surplus amount maintain the family of his daughter and her son or
heirs in perpetuity.
After the death of Nachir Mohammed, the predecessorsin-interest
of the plaintiff had been owning and possessing the suit
land and enjoying the usufruct from the income of the suit land
after maintaining the Masjid set up by Nachir Mohammed. The suit
land was recorded in Khatian No.11 of Mouja Ichailalcherra and the
name of the plaintiff was recorded in Column No.24 of the Khatian.
The plaintiff let out some portion of the suit land to
fourteen persons of the locality on lease and on 30.11.2005 the
defendant-respondent No.4 at the instance of the defendant
respondent No.3 issued notices to those fourteen persons to deposit
`1,000/- per kani towards lease of the land and the plaintiff
contended that defendant No.4 without having any authority and
having no right title or interest issued that notices and thereby tried
to interfere in the private Wakf property of the plaintiff.
The plaintiff further contended that subsequently she
came to know that as per instruction of defendant No.5, the
defendant No.3 made arrangement for leasing out the suit property
without having any authority and on 29.05.2006 issued an
advertisement stating that land measuring twenty kanies will be
given on lease for a period of one year according to the provisions
of the Wakf Act and to take the lease to deposit `1,000/- per kani.
The plaintiff contended that the said notice was issued
without any jurisdiction and further contended that the Wakf
property is a privately managed Wakf property and the plaintiff and
her predecessors maintaining and enjoying it for more than
hundred years and that the plaintiff was inheriting it as Mutawalli as
per solemn sacred and pious instruction of the testator, Nachir
Mohammed.
Since the defendants issued notice dated 29.05.2006
for leasing out the suit land the plaintiff instituted CRP No.34 of
2006 in the Agartala Bench of the Gauhati High Court and by
judgment and order dated 05.01.2007 the High Court disposed the
petition of the plaintiff with the following direction:
“Accordingly, this petition is disposed of with
direction that the petitioner within a period of two
weeks shall file necessary objection before the
Tahashilder, Ichailalcherra, Dharmanagar, North Tripura
stating her claim over the disputed land before the said
authority. On filing of such objection, the respondent
authorities or any other competent and appropriate
authority shall decide the same taking note of the
objection so filed by giving opportunity of hearing to the
petitioner. Till the aforesaid decision is taken, no further
action upon the impugned notices would be taken by
the respondents—authorities, such decision, however,
shall always be open to challenge by the aggrieved
party. The right of the petitioner to approach the
competent civil court for necessary relief can also not
be denied with.
With the aforesaid observation and direction, this
civil revision petition is disposed of.”
As per the above direction the plaintiff submitted a
prayer before the Tehshildar, Ichailalcherra Tehshil but the
Tehshildar did not take any action on the petition of the plaintiff.
It is alleged by the plaintiff that she paid revenue to the
Government regularly and she maintained the Wakf property as a
Wakf-alal-aulad and she was performing the duties of Mutawalli and
that she has exclusive right title interest over the suit land and the
defendants having no jurisdiction or authority were trying to grab
the suit land and therefore she instituted the suit seeking
declaration of her right title over the suit land.
6. The defendant Nos.1 to 4 filed a joint written statement
denying the allegation made in the plaint and further contended
that Khatian No.11 of Mouja Pratyekroy under Ichailalcherra Tehshil
Kachari has been recorded in the name of Wakf Board of
Ichaibaruakandi Masjid without mentioning any specific name of
Mutawalli and the name of plaintiff, Rahima Begum Choudhury has
been recorded in Column No.24 of the Khatian as permissive
possessor.
The defendants also contended that it was not known to
them whether the plaintiff was the legal heir of Nachir Mohammed
and whether it was a private Wakf or not. The defendants further
contended that the plaintiff, Rahima Begum Choudhury used to
perform the religious functions of the said Masjid but most of the
pious religious persons of Ichabaruakandi were dissatisfied in the
maintenance of the Masjid and therefore the Wakf Board, Agartala
took appropriate action as per the provisions of law and notice
dated 29.05.2006 was issued as per decision of the Wakf Board.
The land measuring 8.45 acres has been recorded in favour of the
Wakf i.e. Ichaibaruakandi Masjid and there was nothing wrong in
the action taken in respect of the suit property.
7. The defendant-respondent No.5, the Chief Executive
Officer of Tripura Board of Wakf has filed a detailed written
statement inter alia contending that the suit instituted by the
plaintiff under Section 34 of the Specific Relief Act is not
maintainable since the plaintiff did not pray for any other relief. As
per the order passed by the High Court the plaintiff filed a petition
before Tehshildar but the plaintiff did not wait for the decision of
Tehshildar and hence the suit was premature and was not
maintainable.
It is also contended by the defendant that Nachir
Mohammed died leaving his only daughter, namely Latifa Bibi and
Latifa Bibi died leaving her only daughter Esha Bibi. Esha Bibi died
leaving her only daughter Laila Bibi and the plaintiff Rahima Begum
Choudhury is the daughter of Laila Bibi. Laila Bibi, mother of the
plaintiff died during lifetime of Esha Bibi and so the plaintiff has no
right to inherit the property of her grandmother Esha Bibi since her
mother Laila Bibi predeceased her.
It is also contended by the defendant that Nachir
Mohammed, the testator, appointed Md. Mussa, the husband of
Latifa Bibi as the Mutawalli of the Wakf property to perform all
other religious activities. According to Mahomedan Law, a female is
not barred from acting as Mutawalli but a female cannot perform
the spiritual duties and therefore the testator appointed his son-inlaw
as Mutawalli. Since a female cannot perform the spiritual duties
of an Imam in a Mosque who leads the congregation, the plaintiff
cannot hold the post of Mutawalli and cannot therefore own or
possess the suit property in any manner.
It is also contended by the said defendant that on
01.09.2005 he visited Dharmanagar when the President of SubDivisional
Wakf Committee, namely Abdul Matin Choudhury and the
Secretary of the Wakf Committee, namely Mohammed Abdullah met
him and informed him that there was no Imam in the Mosque
situated in the Wakf property and that the spiritual duties were not
performed properly and therefore they prayed for taking necessary
steps for taking over the Wakf property for its management and
preservation from being wasted and considering their request the
defendant appointed Abdul Mannan Choudhury, the son of second
wife of Mohammed Mussa as the Mutawalli in exercise of power
under Section 63 of the Wakf Act, 1995 subject to approval of the
Wakf Board and assigned the management of the Wakf property to
the said Abdul Mannan Choudhury. After the death of Abdul Mannan
Choudhury, another Abdul Hannan Choudhury, son of Abdul Suban
was appointed as Mutawalli and he was looking after the Wakf
property.
It is also contended by the defendant that in the month
of October, 2005 he again visited the Wakf property and some of
the local people met him and expressed their intention to take
some land of the Wakf property on lease for agricultural purpose
and accordingly Sub-Divisional Magistrate, Dharmanagar, the
Assistant Survey Commissioner of Wakf, issued a public notice
authorizing Tehshildar of Ichailalcherra Tehshil to take necessary
steps who issued notice on 30.11.2005 to fourteen people of the
locality to deposit premium of `1,000/- per kani for one year to
take lease of the property but those fourteen people did not
respond. On 29.05.2006 a public notice was published inviting
application from the intending leasees for grant of lease of Wakf
property for the period of one year on payment of `1,000/- per kani
and in response seven persons approached the Assistant Survey
Commissioner for grant of lease at the rate of `1,000/- per kani.
The Wakf was thereafter registered under Section 37 of
the Wakf Act, 1995 and after registration the property is now under
the direct control of the Board of Wakf and the plaintiff has no right
to hold the office of Mutawalli for the purpose of maintaining the
Wakf property.
8. Considering the pleadings the learned trial Judge
framed following issues:
“1. Is the suit maintainable in its present form?
2. Is there any cause of action for this suit?
3. Is the suit barred by limitation?
4. Has the plaintiff right, title and interest over the suit
land?
5. Are the parties entitled to any other relief/cost?”
9. In course of trial plaintiff examined herself as PW1 and
also examined two more witnesses, namely PW2 Sri Ramananda
Nath and PW3 Md. Mojar Ali. In support of her case the plaintiff
proved the following documents:
Exbt.1—Certified copy of the judgment of Hon’ble High
Court in CRP No.34 of 2006,
Exbt.2—Copy of objection to Tehsildar dated
17.01.2007,
Exbt.3—Copy of Will dated 5th of Baishak, 1315 T.E.
Exbt.4—Copy of Khatian No.11 of Mouja-Pratyekroy,
Exbt.5— Copy of khatian No.165,
Exbt.6—Copy of khatian No.450,
Exbt.7—Copy of Notice issued by Tehsildar.
Exbt.8—Copy of rent receipts. RSA NO.67 OF 2008 Page 11 of 26
Exbt.9—Extraordinary issue of Tripura gazette dated
24.09.1981.
Exbt.10—Copy of death certificate of Esha Bibi.
Exbt.11—Copy of death certificate of Laila Begum.
Defendant No.5 examined himself as DW1 and also
examined four more witnesses, namely DW2 Abdul Matin
Choudhury, DW3 Abdul Hannan, DW4 Dwijendra Kumar Deb and
DW5 Md. Abdul Rakib. The evidence of DW3 was discarded since in
his examination-in-chief submitted by affidavit his father’s name
was mentioned as Late Musakari Choudhury but when he was taken
in the witness box for cross-examination he stated his father’s
name as Abdul Suban Choudhury and therefore his evidence was
discarded. The defendant No.5 proved the following documents:
Exbt.A—Copy of Khatian No.11 of Mouja Pratyekroy.
Exbt.B—Copy of registration of Wakf property.
Exbt.C—Copy of Wakf Notification dated 29.05.2006.
Exbt.D—Copy of Tripura Gazette Notification dated
18.07.2001.
Exbt.E—Certified copy of order dated 05.01.2007 in CRP
34/06,
Exbt.F—Deputation of 7 persons to C.E.O., Tripura Wakf
Board.
Exbt.G—Copy of lease proposal by Tahasildar to S.D.M.,
Dharmanagar.
10. At the conclusion of trial the learned Civil Judge, Senior
Division decided all the issues in favour of the plaintiff and
accordingly declared that the plaintiff has title over the suit land
and accordingly decreed the suit.
11. Aggrieved, the defendant No.5 preferred Title Appeal
No.8 of 2008 and by impugned judgment dated 22.08.2008 the
learned Addl. District Judge, Kailashahar allowed the appeal and set
aside the judgment and decree passed by the learned trial Judge
and hence this second appeal.
12. It is an admitted position that Nachir Mohammed was
the original owner of the suit property and he executed a registered
Will dated 5th of Baishakh, 1315 T.E. and by that Will he
bequeathed and settled the suit property and his other properties.
It is also an admitted position that Nachir Mohammed died leaving
behind his only daughter Latifa Bibi and Latifa Bibi died leaving
behind her only daughter Esha Bibi and Esha Bibi also has left
behind her only daughter Laila Bibi and the plaintiff Rahima Begam
Choudhury is the only daughter of Laila Bibi. According to the
plaintiff, Esha Bibi died leaving behind Laila Bibi and Laila Bibi died
leaving behind the plaintiff. But according to the defendants, Laila
Bibi predeceased Esha Bibi and so the plaintiff Rehima Begum
Choudhury being the daughter of Laila Bibi cannot claim as a legal
heir of Esha Bibi. It is also an admitted position that the testator
Nachir Mohammed by executing the registered Will dated 5th of
Baishakh, 1315 T.E. dedicated one and half drones of land
described in the schedule of the Will for religious purpose and
thereby created a Wakf stipulating that out of the usufruct of that
property land revenue should be paid and from the rest amount
lighting of candle(cheragbati) should be made in the Masjid set up
by him and also the Masjid should be maintained out of the usufruct
and the rest amount should be utilized by his daughter and her
heirs in perpetuity. If they fail to do so they will not be entitled to
enjoy the Wakf property. He appointed his son-in-law Md. Mussa to
perform those acts during his lifetime and thereafter it should be
maintained by his legal heirs.
13. According to the plaintiff, the defendants at first issued
notice on 30.11.2005 to fourteen persons to whom the plaintiff
leased out a portion of the suit property and thereafter on
29.05.2006 issued public notice inviting application to take lease of
the suit land from different persons and thereby the defendants
were trying to take over the suit land from the possession of the
plaintiff.
14. The defendant No.5 contended that on 01.09.2005
when he visited Dharmanagar the President and Secretary of SubDivisional
Wakf Committee met him and made request to take over
the suit property alleging that it was not properly managed and
there was no Imam of the Mosque and therefore the defendant
No.5 appointed Abdul Mannan Choudhury as the Mutawalli and
thereafter Abdul Hannan Choudhury as Mutawali and the suit
property was entered in the register of Wakf property and
subsequently public notice was issued to give away a part of the
suit property on lease.
15. It is an admitted position that Nachir Mohammed
created a Wakf dedicating one and half drones of property by a
registered Will with specific intention to maintain a Mosque set up
by him in the dedicated property, to maintain the Mosque and to
light candle in the Mosque out of the usufruct of the property and
further intended that the excess amount after maintaining the
Mosque and payment of revenue, etc. to the Government should be
enjoyed by his successors. It was therefore a composite intention of
the testator. The testator’s intention should be read as a whole and
not in isolation. In one paragraph of the Will the testator created
the Wakf specifying therein his intention as to how the income out
of the property should be used. The question therefore which is
argued by both side to be decided here as to whether it was a
public Wakf or a private Wakf. Wakf has been defined in Section
3(r) of the Wakf Act, 1995 which reads as follows:
”(r) “wakf” means the permanent dedication by a
person professing Islam, of any movable or immovable
property for any purpose recognized by the Muslim law
as pious, religious or charitable and includes—
(i) a wakf by user but such wakf shall not
cease to be a wakf by reason only of the user
having ceased irrespective of the period of such
cesser;
(ii) “grants”, including mashrut-ul-khidmat for
any purpose recognized by the Muslim law as
pious, religious or charitable; and
(iii) a wakf-alal-aulad o the extent to which the
property is dedicated for any purpose recognized
by Muslim law as pious, religious or charitable,
and “wakif” means any person making such
dedication;”
16. It is submitted by learned senior counsel, Mr. Bhowmik
that the Wakf created by Nachim Mohammed was a Wakf-alal-aulad
and so it was a private Wakf creating thereunder the religious
purpose as well as the interest of the legal heirs of the testator. The
intention of the testator cannot be severed and therefore the
plaintiff cannot be deprived of her right to enjoy the property to the
extent the testator has specified/declared under the Will.
A Wakf generally made with a pious, charitable and
religious purposes. Normally, a Wakf property is vested in God. But
there may be Wakf where some other interest is created at the
same time while dedicating the property to God. There are often
tying up of property in the ownership of God and the devotion of
the profits for the benefit of human beings.
Wakf-alal-aulad had developed as a means of
dedicating property in favour of oneself and one’s lineal decedents,
as a pious act and something directing a major or minor portion of
the usufruct towards religious or charitable objects in the name of
Allah. Extension of the institution of Walkf-alal-aulad, having
nothing to serve for public charity, till the whole line of the Wakif
and his children and their descendents stands extinguished, or
having little to serve for public charity, but the bulk of the usufruct
being directed for the benefit of the Wakif and his descendents, and
the office of the Mutawalli being confined to the Wakif and/or his
legal descendents alone. Whether there was a Wakf for a purely
religious, pious or a charitable object or one for the support of a
Wakif and his kith and kin, with some religious, pious or charitable
objects added to it, the corpus of the Wakf could not be allowed to
the usurped or eroded but the usufruct could be used or applied to
the objects of the Wakf.
17. Here the intention of the testator is clear and
unambiguous. He has created the Wakf for religious and charitable
purpose as well as for the interest of his legal heirs/descendents.
He set up a Mosque on his property and he created the Wakf to
maintain that Mosque as well as to put candlelight in the Mosque
and nothing more he has mentioned in his Will. He clearly specified
that out of the income of the property, the land revenue should be
paid first and thereafter the candlelight should be arranged in the
Mosque set up by him and the Mosque should be maintained and RSA NO.67 OF 2008 Page 17 of 26
the rest amount shall be enjoyed by his heirs in perpetuity. So this
interest created by the testator cannot be separated to say that it
was a Wakf created absolutely for religious or charitable purpose. In
my considered opinion it was a Wakf created for religious purpose
as well as for maintaining the legal heirs/descendents of the
testator.
18. Wakf may be created by Muslim generally falls into two
categories. One is public Wakf in the sense that the beneficiaries
are members of the public and the other is private Wakf in the
sense that public as such are not the beneficiaries and certain
specified individual happens to be the beneficiaries. Even with
regard to a private Wakf there may be two kinds. One is a Wakf-alal-aulad
simpliciter and the other is Wakf in which there is a
dedication or gift in praesenti in the sense that a portion of the
income from the Wakf property is preserved for being spent for
strangers and other objects of piety or charity and the other portion
being spent for the benefit for the Wakif’s relations and members of
the family.
In the given facts of this case the Wakf was created for
performing specific religious and charitable purpose as well as for
maintenance of the legal heirs/descendents of the testator and the
testator has specified that in the event the legal heirs/descendents
failed to maintain the Mosque and light candles in the Mosque, they
will be deprived of enjoying the usufruct of the Wakf property.
Therefore, in my considered opinion it was a private Wakf created
for some religious purpose as well as for the interest of the family
members of the Wakif.
19. Learned senior counsel, Mr. Bhowmik has referred the
case of Tamil Nadu Wakf Board v. Larabsha Darga Panruti
reported in (2007) 13 SCC 416 and submitted that the apex Court
clearly held in the judgment that the suit property was belonged to
a private Wakf and Wakf-alal-aulad. Though the fact of that case
and the fact of the present case are not exactly similar but the
principles enunciated in that judgment may fairly be applied in the
facts of this case and I am of the considered opinion that the Wakf
created by Nachir Mohammed in the facts of the present case is a
private Wakf, Wakf-alal-aulad and it is not a public Wakf.
20. Learned senior counsel, Mr. Chakraborty has referred
the case of Mohd. Ismail v. Sabir Ali reported in AIR 1962 SC
1722 but having carefully gone through the said judgment I am of
the considered opinion that it was on a different context and ratio of
that decision cannot be applied in this case. It was purely a Wakf in
perpetuity and not a Wakf-alal-aulad.
21. It is not disputed that under Mahomedan Law a female
also can perform the act of Mutawalli. If a female can perform the
act of Mutawalli the defendant No.5 should not have appointed any
other person as Mutawalli in exercise of the power under Section 63
of the Wakf Act, 1995. The testator in his Will creating the Wakf did
not say anything about the performance of any spiritual duties but
simply stated about lighting of candle and maintenance of the
Mosque out of the income of the Wakf property and those can be
performed by any Mutawalli whether a male or female. From the
pleadings and evidence of defendant No.5 it is clear that only based
on the statement of the President and Secretary of the SubDivisional
Committee the defendant No.5 without having any
enquiry appointed Abdul Mannan Choudhury as Mutawali and
thereafter Abdul Hannan Choudhury as Mutawali which was not at
all called for. There is nothing in the Mahomedan Law as admitted
by the defendants also that a female cannot perform the act of
Mutawalli. The plaintiff admittedly being a descendent of the
testator Nachir Mohammed can perform the act of Mutawalli
irrespective of the fact that her mother died before the death of her
grandmother Esha Bibi. That point that Laila Bibi died before Esha
Bibi is not material point to be considered by the Court and I do not
find any importance to be attached on that issue. I have therefore
no hesitation to come to the conclusion that the plaintiff being the
legal representative of the testator Nachir Mohammad was/is
entitled to act as Mutawali of the Wakf property.
22. Learned senior counsel, Mr. Bhowmik has submitted
that gazette notification dated 16.11.2007 has been considered by
the appellate Court without affording any opportunity to the plaintiff
and without exhibiting the said document. I find no substance in
this argument of learned senior counsel, Mr. Bhowmik. On perusal
of order dated 15.07.2008 passed by the appellate Court I find that
after hearing learned counsel of both side the appellate Court
accepted gazette notification 16.11.2007 as additional evidence. So
there is nothing wrong in considering that notification as an item of
evidence.
23. The core issue now to be decided as to whether the civil
Court has got jurisdiction in view of the provision of Section 85 of
the Wakf Act, 1995. Section 85 reads as follows:
“85. Bar of jurisdiction of civil courts.—No suit or other
legal proceeding shall lie in any civil court in respect of
any dispute, question or other matter relating to any
wakf, wakf property or other matter which is required
by or under this Act to be determined by a Tribunal.”
The above provision clearly barred the jurisdiction of
civil Courts in respect of any dispute, question or other matter
relating to any Wakf, Wakf property or other matter which is
required by or under the Wakf Act to be determined by a Tribunal.
Section 83 of the Wakf Act, 1995 prescribes provision
for constitution of Tribunals by the State Government. Section 84
prescribes the provision authorizing Tribunal to hold proceedings
expeditiously and to furnish to the parties copies of its decision.
Section 83 reads as follows:
“83. Constitution of Tribunals, etc.—
(1) The State Government shall, by notification in the
Official Gazette, constitute as many Tribunals as it may
think fit, for the determination of any dispute, question
or other matter relating to a wakf or wakf property
under this Act and define the local limits and jurisdiction
under this Act of each of such Tribunals.
(2) Any mutawalli person interested in a wakf or any
other person aggrieved by an order made under this
Act, or rules made thereunder, may make an
application within the time specified in this Act or where
no such time has been specified, within such time as
may be prescribed, to the Tribunal for the
determination of any dispute, question or other matter
relating to the wakf.
(3) Where any application made under sub-section (1)
relates to any wakf property which falls within the
territorial limits of the jurisdiction of two or more
Tribunals, such application may be made to the Tribunal
within the local limits of whose jurisdiction the
mutawalli or any one of the mutawallis of the wakf
actually and voluntarily resides, carries on business or
personally works for gain, and, where any such
application is made to the Tribunal aforesaid, the other
Tribunal or Tribunals having jurisdiction shall not
entertain any application for the determination of such
dispute, question or other matter:
Provided that the State Government may, if it is
of opinion that it is expedient in the interest of the wakf
or any other person interested in the wakf or the wakf
property to transfer such application to any other
Tribunal having jurisdiction for the determination of the
dispute, question or other matter relating to such wakf
or wakf property, transfer such application to any other
Tribunal having jurisdiction, and, on such transfer, the
Tribunal to which the application is so transferred shall
deal with the application from the stage which was
reached before the Tribunal from which the application
has been so transferred, except where the Tribunal is of
opinion that it is necessary in the interests of justice to
deal with the application afresh.
(4) Every Tribunal shall consist of one person, who shall
be a member of the State Judicial Service holding a
rank, not below that of a District, Sessions or Civil
Judge, Class I, and the appointment of every such
person may be made either by name or by designation.
(5) The Tribunal shall be deemed to be a civil court and
shall have the same powers as may be exercised by a
civil court under the Code of Civil Procedure, 1908 (5 of
1908), while trying a suit, or executing a decree or
order.
(6) Notwithstanding anything contained in the Code of
Civil Procedure, 1908 (5 of 1908), the Tribunal shall
follow such procedure as may be prescribed.
(7) The decision of the Tribunal shall be final and
binding upon the parties to the application and it shall
have the force of a decree made by a civil court.
(8) The execution of any decision of the Tribunal shall
be made by the civil court to which such decision is sent
for execution in accordance with the provisions of the
Code of Civil Procedure, 1908 (5 of 1908).
(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.”
Section 84 reads as follows:
“84. Tribunal to hold proceedings expeditiously
and to furnish to the parties copies of its
decision.—Whenever an application is made to a
Tribunal for the determination of any dispute, question
or other matter relating to a wakf or wakf property it
shall hold its proceedings as expeditiously as possible
and shall as soon as practicable, on the conclusion of
the hearing of such matter give its decision in writing
and furnish a copy of such decision to each of the
parties to the dispute.”
24. It is submitted by learned senior counsel, Mr.
Chakraborty for the respondents that there are Tribunals
constituted by the State Government to decide the disputes in
respect of Wakf and such submission is not disputed. Mr.
Chakraborty , learned senior counsel also referred the decision of
the apex Court in the case of W.B. Wakf Board v. Anis Fatma
Begum reported in (2010) 14 SCC 588 wherein the apex Court
has held that the Tribunal has the only jurisdiction in the matter of
Wakf disputes and the Civil Court has no jurisdiction. In paras 10,
11, 12 and 13 the apex Court has held:
“10. Thus, the Wakf Tribunal can decide all disputes,
questions or other matters relating to a wakf or wakf
property. The words "any dispute, question or other
matters relating to a wakf or wakf property" are, in
our opinion, words of very wide connotation. Any
dispute, question or other matters whatsoever and in
whatever manner which arises relating to a wakf or
wakf property can be decided by the Wakf Tribunal. The
word “wakf' has been defined in Section 3(r) of the
Wakf Act, 1995 and hence once the property is found to
be a wakf property as defined in Section 3(r), then any
dispute, question or other matter relating to it should
be agitated before the Wakf Tribunal.
11. Under Section 83(5) of the Wakf Act, 1995 the
Tribunal has all powers of the civil court under the Code
of Civil Procedure, and hence it has also powers under
Order 39 Rules 1, 2 and 2-A of the Code of Civil
Procedure, 1908 to grant temporary injunctions and
enforce such injunctions. Hence, a full-fledged remedy
is available to any party if there is any dispute, question
or other matter relating to a wakf or wakf property.
12. We may further clarify that the party can approach
the Wakf Tribunal, even if no order has been passed
under the Act, against which he/she is aggrieved. It
may be mentioned that Sections 83(1) and 84 of the
Act do not confine the jurisdiction of the Wakf Tribunal
to the determination of the correctness or otherwise of
an order passed under the Act. No doubt Section 83(2)
refers to the orders passed under the Act, but, in our
opinion, Sections 83(1) and 84 of the Act are
independent provisions, and they do not require an
order to be passed under the Act before invoking the
jurisdiction of the Wakf Tribunal. Hence, it cannot be
said that a party can approach the Wakf Tribunal only
against an order passed under the Act. In our opinion,
even if no order has been passed under the Act, the
party can approach the Wakf Tribunal for the
determination of any dispute, question or other matters
relating to a wakf or wakf property, as the plain
language of Sections 83(1) and 84 indicates.
13. We may clarify that under the proviso to Section 83
(9) of the Wakf Act, 1995 a party aggrieved by the
decision of the Tribunal can approach the High Court
which can call for the records for satisfying itself as to
the correctness, legality or propriety of the decision of
the Tribunal. This provision makes it clear that the
intention of Parliament is that the party who wishes to
raise any dispute or matter relating to a wakf or wakf
property should first approach the Tribunal before
approaching the High Court.”
25. In view of the provisions laid down in the Wakf Act and
the law explained by the apex Court in Anis Fatma Begum(supra)
the civil Court is barred in exercising jurisdiction in respect of a
dispute of Wakf. Since in the present case, it is an admitted position
that a Wakf was created by the deceased Nachir Mohammed, any
dispute regarding the Wakf or Wakf property should be decided by
the Tribunal and the plaintiff or the defendants may approach the
Tribunal for deciding the dispute which is brought in the civil suit.
The apex Court has held that against the decision of the Tribunal an
aggrieved party can approach the High Court which can call for the
records for satisfying itself as to the correctness, legality or
propriety of the decision of the Tribunal. The plaintiff-appellant, if
so advised may approach the appropriate Tribunal for deciding the
dispute and in case the plaintiff-appellant is aggrieved by the
decision of the Tribunal it may approach the High Court as per the
law explained by the apex Court.
26. Subject to the above observation the appeal stands
dismissed.
27. Send back the LCRs along with a copy of this judgment.
AGARTALA
RSA NO.67 OF 2008
Smt. Rahima Begam Choudhury,
-Vs –
The State of Tripura,
BEFORE
HON’BLE MR. JUSTICE S.C. DAS
Date of delivery of
Judgment & Order : 06.05.2015
Citation:AIR 2016(NOC) 549 Tri
This second appeal under Section 100 of the Code of
Civil Procedure, 1908 is directed against the judgment and decree
dated 22.08.2008 and 30.08.2008 respectively passed by learned
Addl. District Judge, North Tripura, Kailashahar in Title Appeal
No.08 of 2008 whereby and whereunder the learned Addl. District
Judge set aside the judgment and decree dated 17.01.2008 passed
by learned Civil Judge, Sr. Division, North Tripura, Kailashahar in
T.S. No.11 of 2007.
2. The second appeal has been admitted for hearing on
the following substantial questions of law:
“(a) Whether the private property can be declared as
wakf property without due process of law?
(b) Whether the Appellate Court below while exercising
appellate jurisdiction can consider a document not
exhibited in the trial court and can pass decree on the
basis of the same without affording any opportunity to
the plaintiff?
(c) Whether the finding of the first Appellate Court to
the effect that a female/lady cannot hold the post of
Mutawali is sustainable as per Islamic Law?”
Yes No
√
3. Heard learned senior counsel, Mr. A.C. Bhowmik for the
appellant and learned senior counsel, Mr. D. Chakraborty for the
respondents.
4. The appellant as plaintiff(hereinafter mentioned as
plaintiff) instituted Title Suit No.11 of 2007 against the
respondents(hereinafter mentioned as defendants) seeking
declaration of her title over the suit land described in the schedule
of the plaint measuring 8.45 acres.
5. The plaintiff in her pleadings, inter alia, contended that
her predecessor, Nachir Mohammed, son of late Kadir Mohammed
of village-Ichaibaruakandi under Sub-Division Dharmanagar,
executed a registered Will on 5th of Baishakh, 1315 T.E, about 100
years ago and thereby created a private Wakf of an area of land
measuring one and half drone and in the said Will the testator,
Nachir Mohammed clearly stated that from the income of the said
one and half drone of land the Mutawalli shall pay the Government
revenue and maintain the Ichaibaruakandi Jama Masjid set up by
said Nachir Mohammed, provide candlelight(cheregbati) and
facilitate performing of all religious performance and with the
surplus amount maintain the family of his daughter and her son or
heirs in perpetuity.
After the death of Nachir Mohammed, the predecessorsin-interest
of the plaintiff had been owning and possessing the suit
land and enjoying the usufruct from the income of the suit land
after maintaining the Masjid set up by Nachir Mohammed. The suit
land was recorded in Khatian No.11 of Mouja Ichailalcherra and the
name of the plaintiff was recorded in Column No.24 of the Khatian.
The plaintiff let out some portion of the suit land to
fourteen persons of the locality on lease and on 30.11.2005 the
defendant-respondent No.4 at the instance of the defendant
respondent No.3 issued notices to those fourteen persons to deposit
`1,000/- per kani towards lease of the land and the plaintiff
contended that defendant No.4 without having any authority and
having no right title or interest issued that notices and thereby tried
to interfere in the private Wakf property of the plaintiff.
The plaintiff further contended that subsequently she
came to know that as per instruction of defendant No.5, the
defendant No.3 made arrangement for leasing out the suit property
without having any authority and on 29.05.2006 issued an
advertisement stating that land measuring twenty kanies will be
given on lease for a period of one year according to the provisions
of the Wakf Act and to take the lease to deposit `1,000/- per kani.
The plaintiff contended that the said notice was issued
without any jurisdiction and further contended that the Wakf
property is a privately managed Wakf property and the plaintiff and
her predecessors maintaining and enjoying it for more than
hundred years and that the plaintiff was inheriting it as Mutawalli as
per solemn sacred and pious instruction of the testator, Nachir
Mohammed.
Since the defendants issued notice dated 29.05.2006
for leasing out the suit land the plaintiff instituted CRP No.34 of
2006 in the Agartala Bench of the Gauhati High Court and by
judgment and order dated 05.01.2007 the High Court disposed the
petition of the plaintiff with the following direction:
“Accordingly, this petition is disposed of with
direction that the petitioner within a period of two
weeks shall file necessary objection before the
Tahashilder, Ichailalcherra, Dharmanagar, North Tripura
stating her claim over the disputed land before the said
authority. On filing of such objection, the respondent
authorities or any other competent and appropriate
authority shall decide the same taking note of the
objection so filed by giving opportunity of hearing to the
petitioner. Till the aforesaid decision is taken, no further
action upon the impugned notices would be taken by
the respondents—authorities, such decision, however,
shall always be open to challenge by the aggrieved
party. The right of the petitioner to approach the
competent civil court for necessary relief can also not
be denied with.
With the aforesaid observation and direction, this
civil revision petition is disposed of.”
As per the above direction the plaintiff submitted a
prayer before the Tehshildar, Ichailalcherra Tehshil but the
Tehshildar did not take any action on the petition of the plaintiff.
It is alleged by the plaintiff that she paid revenue to the
Government regularly and she maintained the Wakf property as a
Wakf-alal-aulad and she was performing the duties of Mutawalli and
that she has exclusive right title interest over the suit land and the
defendants having no jurisdiction or authority were trying to grab
the suit land and therefore she instituted the suit seeking
declaration of her right title over the suit land.
6. The defendant Nos.1 to 4 filed a joint written statement
denying the allegation made in the plaint and further contended
that Khatian No.11 of Mouja Pratyekroy under Ichailalcherra Tehshil
Kachari has been recorded in the name of Wakf Board of
Ichaibaruakandi Masjid without mentioning any specific name of
Mutawalli and the name of plaintiff, Rahima Begum Choudhury has
been recorded in Column No.24 of the Khatian as permissive
possessor.
The defendants also contended that it was not known to
them whether the plaintiff was the legal heir of Nachir Mohammed
and whether it was a private Wakf or not. The defendants further
contended that the plaintiff, Rahima Begum Choudhury used to
perform the religious functions of the said Masjid but most of the
pious religious persons of Ichabaruakandi were dissatisfied in the
maintenance of the Masjid and therefore the Wakf Board, Agartala
took appropriate action as per the provisions of law and notice
dated 29.05.2006 was issued as per decision of the Wakf Board.
The land measuring 8.45 acres has been recorded in favour of the
Wakf i.e. Ichaibaruakandi Masjid and there was nothing wrong in
the action taken in respect of the suit property.
7. The defendant-respondent No.5, the Chief Executive
Officer of Tripura Board of Wakf has filed a detailed written
statement inter alia contending that the suit instituted by the
plaintiff under Section 34 of the Specific Relief Act is not
maintainable since the plaintiff did not pray for any other relief. As
per the order passed by the High Court the plaintiff filed a petition
before Tehshildar but the plaintiff did not wait for the decision of
Tehshildar and hence the suit was premature and was not
maintainable.
It is also contended by the defendant that Nachir
Mohammed died leaving his only daughter, namely Latifa Bibi and
Latifa Bibi died leaving her only daughter Esha Bibi. Esha Bibi died
leaving her only daughter Laila Bibi and the plaintiff Rahima Begum
Choudhury is the daughter of Laila Bibi. Laila Bibi, mother of the
plaintiff died during lifetime of Esha Bibi and so the plaintiff has no
right to inherit the property of her grandmother Esha Bibi since her
mother Laila Bibi predeceased her.
It is also contended by the defendant that Nachir
Mohammed, the testator, appointed Md. Mussa, the husband of
Latifa Bibi as the Mutawalli of the Wakf property to perform all
other religious activities. According to Mahomedan Law, a female is
not barred from acting as Mutawalli but a female cannot perform
the spiritual duties and therefore the testator appointed his son-inlaw
as Mutawalli. Since a female cannot perform the spiritual duties
of an Imam in a Mosque who leads the congregation, the plaintiff
cannot hold the post of Mutawalli and cannot therefore own or
possess the suit property in any manner.
It is also contended by the said defendant that on
01.09.2005 he visited Dharmanagar when the President of SubDivisional
Wakf Committee, namely Abdul Matin Choudhury and the
Secretary of the Wakf Committee, namely Mohammed Abdullah met
him and informed him that there was no Imam in the Mosque
situated in the Wakf property and that the spiritual duties were not
performed properly and therefore they prayed for taking necessary
steps for taking over the Wakf property for its management and
preservation from being wasted and considering their request the
defendant appointed Abdul Mannan Choudhury, the son of second
wife of Mohammed Mussa as the Mutawalli in exercise of power
under Section 63 of the Wakf Act, 1995 subject to approval of the
Wakf Board and assigned the management of the Wakf property to
the said Abdul Mannan Choudhury. After the death of Abdul Mannan
Choudhury, another Abdul Hannan Choudhury, son of Abdul Suban
was appointed as Mutawalli and he was looking after the Wakf
property.
It is also contended by the defendant that in the month
of October, 2005 he again visited the Wakf property and some of
the local people met him and expressed their intention to take
some land of the Wakf property on lease for agricultural purpose
and accordingly Sub-Divisional Magistrate, Dharmanagar, the
Assistant Survey Commissioner of Wakf, issued a public notice
authorizing Tehshildar of Ichailalcherra Tehshil to take necessary
steps who issued notice on 30.11.2005 to fourteen people of the
locality to deposit premium of `1,000/- per kani for one year to
take lease of the property but those fourteen people did not
respond. On 29.05.2006 a public notice was published inviting
application from the intending leasees for grant of lease of Wakf
property for the period of one year on payment of `1,000/- per kani
and in response seven persons approached the Assistant Survey
Commissioner for grant of lease at the rate of `1,000/- per kani.
The Wakf was thereafter registered under Section 37 of
the Wakf Act, 1995 and after registration the property is now under
the direct control of the Board of Wakf and the plaintiff has no right
to hold the office of Mutawalli for the purpose of maintaining the
Wakf property.
8. Considering the pleadings the learned trial Judge
framed following issues:
“1. Is the suit maintainable in its present form?
2. Is there any cause of action for this suit?
3. Is the suit barred by limitation?
4. Has the plaintiff right, title and interest over the suit
land?
5. Are the parties entitled to any other relief/cost?”
9. In course of trial plaintiff examined herself as PW1 and
also examined two more witnesses, namely PW2 Sri Ramananda
Nath and PW3 Md. Mojar Ali. In support of her case the plaintiff
proved the following documents:
Exbt.1—Certified copy of the judgment of Hon’ble High
Court in CRP No.34 of 2006,
Exbt.2—Copy of objection to Tehsildar dated
17.01.2007,
Exbt.3—Copy of Will dated 5th of Baishak, 1315 T.E.
Exbt.4—Copy of Khatian No.11 of Mouja-Pratyekroy,
Exbt.5— Copy of khatian No.165,
Exbt.6—Copy of khatian No.450,
Exbt.7—Copy of Notice issued by Tehsildar.
Exbt.8—Copy of rent receipts. RSA NO.67 OF 2008 Page 11 of 26
Exbt.9—Extraordinary issue of Tripura gazette dated
24.09.1981.
Exbt.10—Copy of death certificate of Esha Bibi.
Exbt.11—Copy of death certificate of Laila Begum.
Defendant No.5 examined himself as DW1 and also
examined four more witnesses, namely DW2 Abdul Matin
Choudhury, DW3 Abdul Hannan, DW4 Dwijendra Kumar Deb and
DW5 Md. Abdul Rakib. The evidence of DW3 was discarded since in
his examination-in-chief submitted by affidavit his father’s name
was mentioned as Late Musakari Choudhury but when he was taken
in the witness box for cross-examination he stated his father’s
name as Abdul Suban Choudhury and therefore his evidence was
discarded. The defendant No.5 proved the following documents:
Exbt.A—Copy of Khatian No.11 of Mouja Pratyekroy.
Exbt.B—Copy of registration of Wakf property.
Exbt.C—Copy of Wakf Notification dated 29.05.2006.
Exbt.D—Copy of Tripura Gazette Notification dated
18.07.2001.
Exbt.E—Certified copy of order dated 05.01.2007 in CRP
34/06,
Exbt.F—Deputation of 7 persons to C.E.O., Tripura Wakf
Board.
Exbt.G—Copy of lease proposal by Tahasildar to S.D.M.,
Dharmanagar.
10. At the conclusion of trial the learned Civil Judge, Senior
Division decided all the issues in favour of the plaintiff and
accordingly declared that the plaintiff has title over the suit land
and accordingly decreed the suit.
11. Aggrieved, the defendant No.5 preferred Title Appeal
No.8 of 2008 and by impugned judgment dated 22.08.2008 the
learned Addl. District Judge, Kailashahar allowed the appeal and set
aside the judgment and decree passed by the learned trial Judge
and hence this second appeal.
12. It is an admitted position that Nachir Mohammed was
the original owner of the suit property and he executed a registered
Will dated 5th of Baishakh, 1315 T.E. and by that Will he
bequeathed and settled the suit property and his other properties.
It is also an admitted position that Nachir Mohammed died leaving
behind his only daughter Latifa Bibi and Latifa Bibi died leaving
behind her only daughter Esha Bibi and Esha Bibi also has left
behind her only daughter Laila Bibi and the plaintiff Rahima Begam
Choudhury is the only daughter of Laila Bibi. According to the
plaintiff, Esha Bibi died leaving behind Laila Bibi and Laila Bibi died
leaving behind the plaintiff. But according to the defendants, Laila
Bibi predeceased Esha Bibi and so the plaintiff Rehima Begum
Choudhury being the daughter of Laila Bibi cannot claim as a legal
heir of Esha Bibi. It is also an admitted position that the testator
Nachir Mohammed by executing the registered Will dated 5th of
Baishakh, 1315 T.E. dedicated one and half drones of land
described in the schedule of the Will for religious purpose and
thereby created a Wakf stipulating that out of the usufruct of that
property land revenue should be paid and from the rest amount
lighting of candle(cheragbati) should be made in the Masjid set up
by him and also the Masjid should be maintained out of the usufruct
and the rest amount should be utilized by his daughter and her
heirs in perpetuity. If they fail to do so they will not be entitled to
enjoy the Wakf property. He appointed his son-in-law Md. Mussa to
perform those acts during his lifetime and thereafter it should be
maintained by his legal heirs.
13. According to the plaintiff, the defendants at first issued
notice on 30.11.2005 to fourteen persons to whom the plaintiff
leased out a portion of the suit property and thereafter on
29.05.2006 issued public notice inviting application to take lease of
the suit land from different persons and thereby the defendants
were trying to take over the suit land from the possession of the
plaintiff.
14. The defendant No.5 contended that on 01.09.2005
when he visited Dharmanagar the President and Secretary of SubDivisional
Wakf Committee met him and made request to take over
the suit property alleging that it was not properly managed and
there was no Imam of the Mosque and therefore the defendant
No.5 appointed Abdul Mannan Choudhury as the Mutawalli and
thereafter Abdul Hannan Choudhury as Mutawali and the suit
property was entered in the register of Wakf property and
subsequently public notice was issued to give away a part of the
suit property on lease.
15. It is an admitted position that Nachir Mohammed
created a Wakf dedicating one and half drones of property by a
registered Will with specific intention to maintain a Mosque set up
by him in the dedicated property, to maintain the Mosque and to
light candle in the Mosque out of the usufruct of the property and
further intended that the excess amount after maintaining the
Mosque and payment of revenue, etc. to the Government should be
enjoyed by his successors. It was therefore a composite intention of
the testator. The testator’s intention should be read as a whole and
not in isolation. In one paragraph of the Will the testator created
the Wakf specifying therein his intention as to how the income out
of the property should be used. The question therefore which is
argued by both side to be decided here as to whether it was a
public Wakf or a private Wakf. Wakf has been defined in Section
3(r) of the Wakf Act, 1995 which reads as follows:
”(r) “wakf” means the permanent dedication by a
person professing Islam, of any movable or immovable
property for any purpose recognized by the Muslim law
as pious, religious or charitable and includes—
(i) a wakf by user but such wakf shall not
cease to be a wakf by reason only of the user
having ceased irrespective of the period of such
cesser;
(ii) “grants”, including mashrut-ul-khidmat for
any purpose recognized by the Muslim law as
pious, religious or charitable; and
(iii) a wakf-alal-aulad o the extent to which the
property is dedicated for any purpose recognized
by Muslim law as pious, religious or charitable,
and “wakif” means any person making such
dedication;”
16. It is submitted by learned senior counsel, Mr. Bhowmik
that the Wakf created by Nachim Mohammed was a Wakf-alal-aulad
and so it was a private Wakf creating thereunder the religious
purpose as well as the interest of the legal heirs of the testator. The
intention of the testator cannot be severed and therefore the
plaintiff cannot be deprived of her right to enjoy the property to the
extent the testator has specified/declared under the Will.
A Wakf generally made with a pious, charitable and
religious purposes. Normally, a Wakf property is vested in God. But
there may be Wakf where some other interest is created at the
same time while dedicating the property to God. There are often
tying up of property in the ownership of God and the devotion of
the profits for the benefit of human beings.
Wakf-alal-aulad had developed as a means of
dedicating property in favour of oneself and one’s lineal decedents,
as a pious act and something directing a major or minor portion of
the usufruct towards religious or charitable objects in the name of
Allah. Extension of the institution of Walkf-alal-aulad, having
nothing to serve for public charity, till the whole line of the Wakif
and his children and their descendents stands extinguished, or
having little to serve for public charity, but the bulk of the usufruct
being directed for the benefit of the Wakif and his descendents, and
the office of the Mutawalli being confined to the Wakif and/or his
legal descendents alone. Whether there was a Wakf for a purely
religious, pious or a charitable object or one for the support of a
Wakif and his kith and kin, with some religious, pious or charitable
objects added to it, the corpus of the Wakf could not be allowed to
the usurped or eroded but the usufruct could be used or applied to
the objects of the Wakf.
17. Here the intention of the testator is clear and
unambiguous. He has created the Wakf for religious and charitable
purpose as well as for the interest of his legal heirs/descendents.
He set up a Mosque on his property and he created the Wakf to
maintain that Mosque as well as to put candlelight in the Mosque
and nothing more he has mentioned in his Will. He clearly specified
that out of the income of the property, the land revenue should be
paid first and thereafter the candlelight should be arranged in the
Mosque set up by him and the Mosque should be maintained and RSA NO.67 OF 2008 Page 17 of 26
the rest amount shall be enjoyed by his heirs in perpetuity. So this
interest created by the testator cannot be separated to say that it
was a Wakf created absolutely for religious or charitable purpose. In
my considered opinion it was a Wakf created for religious purpose
as well as for maintaining the legal heirs/descendents of the
testator.
18. Wakf may be created by Muslim generally falls into two
categories. One is public Wakf in the sense that the beneficiaries
are members of the public and the other is private Wakf in the
sense that public as such are not the beneficiaries and certain
specified individual happens to be the beneficiaries. Even with
regard to a private Wakf there may be two kinds. One is a Wakf-alal-aulad
simpliciter and the other is Wakf in which there is a
dedication or gift in praesenti in the sense that a portion of the
income from the Wakf property is preserved for being spent for
strangers and other objects of piety or charity and the other portion
being spent for the benefit for the Wakif’s relations and members of
the family.
In the given facts of this case the Wakf was created for
performing specific religious and charitable purpose as well as for
maintenance of the legal heirs/descendents of the testator and the
testator has specified that in the event the legal heirs/descendents
failed to maintain the Mosque and light candles in the Mosque, they
will be deprived of enjoying the usufruct of the Wakf property.
Therefore, in my considered opinion it was a private Wakf created
for some religious purpose as well as for the interest of the family
members of the Wakif.
19. Learned senior counsel, Mr. Bhowmik has referred the
case of Tamil Nadu Wakf Board v. Larabsha Darga Panruti
reported in (2007) 13 SCC 416 and submitted that the apex Court
clearly held in the judgment that the suit property was belonged to
a private Wakf and Wakf-alal-aulad. Though the fact of that case
and the fact of the present case are not exactly similar but the
principles enunciated in that judgment may fairly be applied in the
facts of this case and I am of the considered opinion that the Wakf
created by Nachir Mohammed in the facts of the present case is a
private Wakf, Wakf-alal-aulad and it is not a public Wakf.
20. Learned senior counsel, Mr. Chakraborty has referred
the case of Mohd. Ismail v. Sabir Ali reported in AIR 1962 SC
1722 but having carefully gone through the said judgment I am of
the considered opinion that it was on a different context and ratio of
that decision cannot be applied in this case. It was purely a Wakf in
perpetuity and not a Wakf-alal-aulad.
21. It is not disputed that under Mahomedan Law a female
also can perform the act of Mutawalli. If a female can perform the
act of Mutawalli the defendant No.5 should not have appointed any
other person as Mutawalli in exercise of the power under Section 63
of the Wakf Act, 1995. The testator in his Will creating the Wakf did
not say anything about the performance of any spiritual duties but
simply stated about lighting of candle and maintenance of the
Mosque out of the income of the Wakf property and those can be
performed by any Mutawalli whether a male or female. From the
pleadings and evidence of defendant No.5 it is clear that only based
on the statement of the President and Secretary of the SubDivisional
Committee the defendant No.5 without having any
enquiry appointed Abdul Mannan Choudhury as Mutawali and
thereafter Abdul Hannan Choudhury as Mutawali which was not at
all called for. There is nothing in the Mahomedan Law as admitted
by the defendants also that a female cannot perform the act of
Mutawalli. The plaintiff admittedly being a descendent of the
testator Nachir Mohammed can perform the act of Mutawalli
irrespective of the fact that her mother died before the death of her
grandmother Esha Bibi. That point that Laila Bibi died before Esha
Bibi is not material point to be considered by the Court and I do not
find any importance to be attached on that issue. I have therefore
no hesitation to come to the conclusion that the plaintiff being the
legal representative of the testator Nachir Mohammad was/is
entitled to act as Mutawali of the Wakf property.
22. Learned senior counsel, Mr. Bhowmik has submitted
that gazette notification dated 16.11.2007 has been considered by
the appellate Court without affording any opportunity to the plaintiff
and without exhibiting the said document. I find no substance in
this argument of learned senior counsel, Mr. Bhowmik. On perusal
of order dated 15.07.2008 passed by the appellate Court I find that
after hearing learned counsel of both side the appellate Court
accepted gazette notification 16.11.2007 as additional evidence. So
there is nothing wrong in considering that notification as an item of
evidence.
23. The core issue now to be decided as to whether the civil
Court has got jurisdiction in view of the provision of Section 85 of
the Wakf Act, 1995. Section 85 reads as follows:
“85. Bar of jurisdiction of civil courts.—No suit or other
legal proceeding shall lie in any civil court in respect of
any dispute, question or other matter relating to any
wakf, wakf property or other matter which is required
by or under this Act to be determined by a Tribunal.”
The above provision clearly barred the jurisdiction of
civil Courts in respect of any dispute, question or other matter
relating to any Wakf, Wakf property or other matter which is
required by or under the Wakf Act to be determined by a Tribunal.
Section 83 of the Wakf Act, 1995 prescribes provision
for constitution of Tribunals by the State Government. Section 84
prescribes the provision authorizing Tribunal to hold proceedings
expeditiously and to furnish to the parties copies of its decision.
Section 83 reads as follows:
“83. Constitution of Tribunals, etc.—
(1) The State Government shall, by notification in the
Official Gazette, constitute as many Tribunals as it may
think fit, for the determination of any dispute, question
or other matter relating to a wakf or wakf property
under this Act and define the local limits and jurisdiction
under this Act of each of such Tribunals.
(2) Any mutawalli person interested in a wakf or any
other person aggrieved by an order made under this
Act, or rules made thereunder, may make an
application within the time specified in this Act or where
no such time has been specified, within such time as
may be prescribed, to the Tribunal for the
determination of any dispute, question or other matter
relating to the wakf.
(3) Where any application made under sub-section (1)
relates to any wakf property which falls within the
territorial limits of the jurisdiction of two or more
Tribunals, such application may be made to the Tribunal
within the local limits of whose jurisdiction the
mutawalli or any one of the mutawallis of the wakf
actually and voluntarily resides, carries on business or
personally works for gain, and, where any such
application is made to the Tribunal aforesaid, the other
Tribunal or Tribunals having jurisdiction shall not
entertain any application for the determination of such
dispute, question or other matter:
Provided that the State Government may, if it is
of opinion that it is expedient in the interest of the wakf
or any other person interested in the wakf or the wakf
property to transfer such application to any other
Tribunal having jurisdiction for the determination of the
dispute, question or other matter relating to such wakf
or wakf property, transfer such application to any other
Tribunal having jurisdiction, and, on such transfer, the
Tribunal to which the application is so transferred shall
deal with the application from the stage which was
reached before the Tribunal from which the application
has been so transferred, except where the Tribunal is of
opinion that it is necessary in the interests of justice to
deal with the application afresh.
(4) Every Tribunal shall consist of one person, who shall
be a member of the State Judicial Service holding a
rank, not below that of a District, Sessions or Civil
Judge, Class I, and the appointment of every such
person may be made either by name or by designation.
(5) The Tribunal shall be deemed to be a civil court and
shall have the same powers as may be exercised by a
civil court under the Code of Civil Procedure, 1908 (5 of
1908), while trying a suit, or executing a decree or
order.
(6) Notwithstanding anything contained in the Code of
Civil Procedure, 1908 (5 of 1908), the Tribunal shall
follow such procedure as may be prescribed.
(7) The decision of the Tribunal shall be final and
binding upon the parties to the application and it shall
have the force of a decree made by a civil court.
(8) The execution of any decision of the Tribunal shall
be made by the civil court to which such decision is sent
for execution in accordance with the provisions of the
Code of Civil Procedure, 1908 (5 of 1908).
(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.”
Section 84 reads as follows:
“84. Tribunal to hold proceedings expeditiously
and to furnish to the parties copies of its
decision.—Whenever an application is made to a
Tribunal for the determination of any dispute, question
or other matter relating to a wakf or wakf property it
shall hold its proceedings as expeditiously as possible
and shall as soon as practicable, on the conclusion of
the hearing of such matter give its decision in writing
and furnish a copy of such decision to each of the
parties to the dispute.”
24. It is submitted by learned senior counsel, Mr.
Chakraborty for the respondents that there are Tribunals
constituted by the State Government to decide the disputes in
respect of Wakf and such submission is not disputed. Mr.
Chakraborty , learned senior counsel also referred the decision of
the apex Court in the case of W.B. Wakf Board v. Anis Fatma
Begum reported in (2010) 14 SCC 588 wherein the apex Court
has held that the Tribunal has the only jurisdiction in the matter of
Wakf disputes and the Civil Court has no jurisdiction. In paras 10,
11, 12 and 13 the apex Court has held:
“10. Thus, the Wakf Tribunal can decide all disputes,
questions or other matters relating to a wakf or wakf
property. The words "any dispute, question or other
matters relating to a wakf or wakf property" are, in
our opinion, words of very wide connotation. Any
dispute, question or other matters whatsoever and in
whatever manner which arises relating to a wakf or
wakf property can be decided by the Wakf Tribunal. The
word “wakf' has been defined in Section 3(r) of the
Wakf Act, 1995 and hence once the property is found to
be a wakf property as defined in Section 3(r), then any
dispute, question or other matter relating to it should
be agitated before the Wakf Tribunal.
11. Under Section 83(5) of the Wakf Act, 1995 the
Tribunal has all powers of the civil court under the Code
of Civil Procedure, and hence it has also powers under
Order 39 Rules 1, 2 and 2-A of the Code of Civil
Procedure, 1908 to grant temporary injunctions and
enforce such injunctions. Hence, a full-fledged remedy
is available to any party if there is any dispute, question
or other matter relating to a wakf or wakf property.
12. We may further clarify that the party can approach
the Wakf Tribunal, even if no order has been passed
under the Act, against which he/she is aggrieved. It
may be mentioned that Sections 83(1) and 84 of the
Act do not confine the jurisdiction of the Wakf Tribunal
to the determination of the correctness or otherwise of
an order passed under the Act. No doubt Section 83(2)
refers to the orders passed under the Act, but, in our
opinion, Sections 83(1) and 84 of the Act are
independent provisions, and they do not require an
order to be passed under the Act before invoking the
jurisdiction of the Wakf Tribunal. Hence, it cannot be
said that a party can approach the Wakf Tribunal only
against an order passed under the Act. In our opinion,
even if no order has been passed under the Act, the
party can approach the Wakf Tribunal for the
determination of any dispute, question or other matters
relating to a wakf or wakf property, as the plain
language of Sections 83(1) and 84 indicates.
13. We may clarify that under the proviso to Section 83
(9) of the Wakf Act, 1995 a party aggrieved by the
decision of the Tribunal can approach the High Court
which can call for the records for satisfying itself as to
the correctness, legality or propriety of the decision of
the Tribunal. This provision makes it clear that the
intention of Parliament is that the party who wishes to
raise any dispute or matter relating to a wakf or wakf
property should first approach the Tribunal before
approaching the High Court.”
25. In view of the provisions laid down in the Wakf Act and
the law explained by the apex Court in Anis Fatma Begum(supra)
the civil Court is barred in exercising jurisdiction in respect of a
dispute of Wakf. Since in the present case, it is an admitted position
that a Wakf was created by the deceased Nachir Mohammed, any
dispute regarding the Wakf or Wakf property should be decided by
the Tribunal and the plaintiff or the defendants may approach the
Tribunal for deciding the dispute which is brought in the civil suit.
The apex Court has held that against the decision of the Tribunal an
aggrieved party can approach the High Court which can call for the
records for satisfying itself as to the correctness, legality or
propriety of the decision of the Tribunal. The plaintiff-appellant, if
so advised may approach the appropriate Tribunal for deciding the
dispute and in case the plaintiff-appellant is aggrieved by the
decision of the Tribunal it may approach the High Court as per the
law explained by the apex Court.
26. Subject to the above observation the appeal stands
dismissed.
27. Send back the LCRs along with a copy of this judgment.
No comments:
Post a Comment