Haji Ehsan Elahi vs Addl. Distrit Judge & Anr.

1. Heard Sri S.M.N.Bokhari, learned counsel for the petitioner and Sri A.N.Sinha, learned counsel for the respondents.

2. The petitioner Haji Ehsan Elahi initiated proceedings for release of house no.88/414 Chamanganj Kanpur on the ground of personal need by filing application under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") alleging that he is owner of suit property and opposite parties/respondents no.2 and 3 Sri Abdul Lateef and Anwar Ahmad are tenants in respect to the portion of house at ground floor which included three rooms, one verandah, one courtyard and one bathroom, one kitchen and one latrine. It was registered as Rent Case No.39 of 1988 before Prescribed Authority.

3. The application was contested by respondents No.2 and 3. The Prescribed Authority/4th Addl. Civil Judge, vide judgment and order dated 19.7.1989 allowed the application directing tenants to hand over vacant possession of property in dispute to the petitioner. The tenants took up the matter in appeal i.e. Rent Appeal No.116/89 which was also dismissed by appellate court i.e. Special Judge (E.C. Act) vide judgment dated 11.9.1991.

4. The appellate judgment show that counsel for appellant absented on the date of hearing and thereafter appeal was decided after hearing counsel for the respondent therein i.e. petitioner in this case. A recall application was filed by tenants i.e. respondents no.2 and 3 which was also rejected by appellate court on 29.5.1992 whereafter the matter was taken to this Court in writ petition no.24545 of 1992. It was allowed vide judgment dated 8.2.1993 and both the orders passed by appellate court i.e. 11.9.1991 and 29.5.1993 were quashed. The relevant extract of judgment of this Court is as under:

"In my opinion, the view taken by the appellate authority is wholly unjustified and against the provisions of Act. Since the Prescribed Authority accepted the contention of petitioners that the landlord did not disclose the existence of two rooms which were available to him, the question was worth consideration by appellate authority. There were already three rooms with the landlord and if two rooms pointed out by the petitioners also taken into account, five rooms became available to him and it required to see as to whether family could be accommodated. The appellate authority could not ignore this vital question. Even after the bona fide and genuine need of the landlord is accepted, release may be refused in case greater hardship likely to be caused to the tenant in allowing the application as clear from the provision 4 to Section 21 (1) of the Act. Further it is also clear that the appeal could not be argued on behalf of the petitioners as petitioner no.1 had fallen ill who was doing pairvi. Application for recall of the order has been rejected on the ground that the medical certificate did not give adequate details about the ailment. However, as the main order of the appellate authority has been found to be erroneous in law, it does not appear necessary to go into details, and this order is also being quashed in the interest of justice, it is a fit case where the case should be remanded for deciding a fresh by appellate authority.

For the reasons recorded above, this writ petition is allowed. The orders dated 11th September 1991 (Annexure 5) and order dated 29th May, 1992 (Annexure 7) passed by Special Judge (E.C.Act) Kanpur Nagar, respondent no.1 in Rent Appeal No.116 of 1989 are hereby quashed. The appeal shall stand restored to its original number. The appellate authority shall decide the appeal after hearing parties in accordance with law a fresh. There will be no order as to costs."

5. The matter has been decided by appellate court again vide judgement dated 24.1.2002, impugned in this writ petition. The appeal has been allowed and Prescribed Authority's order dated 19.7.1989 has been set aside. The result is that petitioner's release application filed under Section 21(1)(a) of Act, 1972 stood rejected. Hence this writ petition.

6. Sri Bukhari, learned counsel for the petitioner submitted that question as to whether any permission was taken by petitioner from Waqf Board or not is a matter between the Waqf Board and petitioner and therefore tenant has no locus standi to challenge proceedings initiated under Section 21(1)(a) of Act, 1972 on this ground. He further contended that Section 49-A was inserted in U.P. Muslim Waqf Act, 1960 after 1970 and therefore, at the time when sale deed was executed i.e. 17.8.1970, Act, 1960 contain no provision requiring permission of Waqf Board to execute sale deed of waqf property and therefore, reliance placed on aforesaid provision is wholly illegal. He lastly contended that property was registered as waqf with Wakf Board only on 17.5.1986 and therefore, Act, 1960 would apply to the property in dispute only from 1986 and onwards and not prior thereto. The impugned judgment therefore by observing that the petitioner was not at all landlord and owner of property in dispute had no right to seek release of accommodation is wholly illegal. Lastly it is contended that for the purpose of application under Section 21(1)(a) ownership is wholly irrelevant and the only relevant question is whether the applicant is landlord or not which fact was admitted by respondent- tenants in the present case hence there was no occasion for appellate court to look into this aspect of the matter and it had acted wholly illegally in taking a view otherwise.

7. Having hearing learned counsel for the petitioner I find that one of the most important aspect of the matter, which was never disclosed by the petitioner when he filed application under Section 21(1)(a) of Act, 1972 was that the property in dispute was a waqf property. This fact was never disclosed at any point of time. From the record it appears that respondent no.2 Abdul Lateef, who was impleaded as defendant no.1 in rent case no.39 of 1988 died on 13.9.1995 when the rent appeal no.116 of 1989 was pending in the court of District Judge Kanpur after remand by this Court vide judgment dated 8.2.1993 in writ petition No.24545 of 1992 (supra).

8. Sri Anwar Ahmad was defendant No.2 in rent case No.39 of 1988 and was impleaded as appellant no.2 as such. This fact is also stated in para 2 of counter affidavit which has not been disputed in para 3 of rejoinder affidavit. The petitioner thereafter filed Civil Misc. Amendment Application No.15363 of 2003 on 28.1.2003 seeking deletion of name of opposite party no.2 and in his place incorporate opposite no.2/1 to 2/8 as respondent. Besides, the fact that said application was not pressed before this Court when this matter was taken up for hearing but even otherwise question of such amendment/substitution would not have arisen for the reason that writ petition was filed impleading a dead person and therefore, so far as such a person is concerned, in the eyes of law there is no matter pending against him and the entire proceedings is nullity. The question of his substitution/amendment does not arise.

9. In absence of legal heirs of respondent no.2 who were already party before the appellate court, no relief can be granted to the petitioner. Even otherwise, the writ petition suffers serious and fatal defect of non impleadment of necessary party and once this fatal defect in respect to some of the tenants exists, respondent no.3, who enjoy joint tenancy in the accommodation in dispute, no order can be passed against him alone and therefore the entire writ petition as such is bound to be dismissed for this reason alone.

10. In Textile Association (India) Bombay Unit Vs. Balmohan Gopal Kurup & Anr., AIR 1990 SC 2053, Apex Court has held that where eviction proceedings are bad for non impleadment of one or more necessary party in respect whereto there is an order of eviction, the same cannot sustain since such order has to be given effect as a whole or not at all.

11. This is one aspect of the matter. However, I do not intend to raise hereat multiple litigation but would like to give a complete quietus to the matter by considering matter on merits also so that parties may have a complete satisfaction of adjudication of their rights on merits also and this approach will negate any scope of further and prolonged multiplicity of litigation, either way.

12. The submission advanced on behalf of petitioner proceeds on the assumption as if existence of waqf depend on the factum of its registration under Act, 1960. It further proceed on the assumption that a person managing Wakf is owner of property and can deal with the property in any manner he likes unless there is a bar to do or not to do something and that too if a procedure is prescribed, follow that procedure only when it is so provided in the statute and not otherwise.

13. The argument lacks basic understanding and appreciation of concept of waqf and this is really unfortunate that learned counsel for the petitioner has not thought of the fact that a serious mischief was committed in the matter since beginning by petitioner by not disclosing the fact that property in dispute formed a part of waqf created as long back as in 1947.

14. From the pleadings made in paras 12, 13, 14, 15 and 16 of writ petition, 16 of the counter affidavit and 13 of rejoinder affidavit, it is evident that vide wakf deed dated 5.11.1947, a wakf was created and the property in dispute formed part of the said waqf. Since creator of waqf was Shia muslim, it was subsequently registered with Shia Waqf Board in 1986. Non registration of wakf with Wakf Board prior to 1986 would make no difference. Nature of wakf property can be looked into by appreciating first as to what a wakf is, what are its necessary constituents and how it can be dealt with in future under the common law.

15. This Court finds that on the question of waqf, its nature, vis a vis various statutes enacted from time to time, matter has been discussed in great detail in my judgment constituting majority decision by Special Bench of this Court in Sunni Central Board of Waqfs Vs. Gopal Singh Visharad, 2010 ADJ (LB) page 1 and from paras 1087 to 1167 the court held:

"1087. The creation of waqf was held valid and lawful by the Prophet Mohammad. It is said that this rule was laid down by Prophet himself and handed down in succession by Ibn Abu Nafe and Ibn Omar. Omar got piece of land in Khaiber whereupon he came to the Prophet and sought his counsel to make the most pious use of it. The Prophet said "if you like you may make a waqf of it, as it is, and bestow it in benification". Omar thereupon bestowed it in charity on his relatives, the poor and slaves and in the path of God, and travellers in a way that the land itself might not be sold, nor conveyed by gift, nor inherited. It is said that waqf continued in existence for several century until the land became waste. The prophet of Islam not only declared such works to be valid and lawful but also encourage their creation by dedicating his own property, the little that he had, in favour of posterity. It would be useful to refer as to what constitute a lawful waqf under Muslim Law. A Division Bench decision of Calcutta High Court in Meer Mahomed Israil Khan Vs. Sashti Churn Ghose and others, 19 ILR (Calcutta) (1892) 412 where Justice Ameer Ali answering the question as to what constitute a lawful waqf under Mussulman law observed that there must be a substantial dedication for charitable or pious purpose. His Lordship further observed:

"In the Mussulman system law and religion are almost synonymous expressions, and are so intermixed with each other that it is wholly impossible to dissociate the one from the other: in other words, what is religious is lawful; what is lawful is religious. The notions derived from other systems of law or religion form no index to the understanding or administration of the Mussalman law. The words "piety" and "charity" have a much wider signification in Mussalman law and religion than perhaps in any other. Every "good purpose," wujuh-ul-khair (to use the language of the Kiafaya), which God approves, or by which approach (kurbat) is attained to the Deity, is a fitting purpose for a valid and lawful wakf. A provision for one's children, for one's relations, and under the Hanafi Sunni law for one's self, is as good and pious an act as a dedication for the support of the general body of the poor. The principle is founded on the religion of Islam, and derived from the teachings of Prophet."

1088. Thereafter Justice Ameer Ali proceeded to quote from "Hedaya" a commentary by "Fath-ul-kadir" said to be frequently quoted in "Fatawa-i- Alamgiri" in great detail and it would be useful to reproduce the same as under:

"I will give here a few passages from some of the best known authorities to show how utterly opposed the view taken in this case is to the Muhammadan law. The Fath-ul-kadir says--" Literally, it (the word wakf) signifies detention, . . . . in law . . . according to the Disciples, the tying up of property in such a manner that the substance (asl=corpus) does not belong to anybody else excepting God, whilst the produce is devoted to human beings, or is spent on whomsoever he [the wakif] likes; and the reason of it is that, though a desire to approach the Deity (kurbat) should form the ultimate motive of all wakfs, yet if, without such an (immediate) desire, a person were to dedicate a property in favour of the affluent (aghnia), the wakf would be valid in the same way as a wakf in favour of the indigent or for the purposes of a mosque: for, in giving to the affluent there is as much kurbat as in giving to the poor or to a mosque, and though the profit may not have been given to the poor on the extinction of the affluent [still] it is wakf and will be treated as wakf even before their extinction. This principle is founded on the reason that the motive in all wakfs is to make one's self beloved by doing good to the living in this world and to approach the Almighty in the next . . . . .

"In wakf Islam is not a condition; consequently if a Zimmi makes a wakf on his children and his posterity and gives it at the end to the indigent, it is lawful [equally with that made by a Moslem]. And it is lawful in such a case to give the usufruct conditioned for the indigent to the poor of both Moselms and Zimmis. The wakif may lawfully condition to give the usufruct solely to the poor of the Zimmis, and in that will be included Jews and Christians and Magians; or he may condition that a special body of them may get the produce . . . . whatever condition the wakif makes if it is not contrary to the Sharaa, will be lawful. And so long as the object is not sinful, the wakif may give to whomsoever he likes . . . According to Abu Yusuf the mention of perpetuity [or dedication to an object of a permanent nature] is not necessary to constitute a valid wakf, for the words wakf and sadakah conjunctively or separately imply perpetuity . . . In the Baramika it is stated that, according to Abu Yusuf, when a wakf is made in favour of specific individuals, on their extinction the profits of the wakf will be applied to the poor . . . Among the wakfs created by the Sahaba [Companions of the Prophet], . . the first is the wakf of Omar (may God be pleased with him) of his land called Samagh [at Khaibar] . . that created by Zobair bin Awwam of his house for the support of his daughter who had been divorced (by her husband); . . that of Arkam Mukhzumi, on his children of his house called Dar-ul-Islam at Safar (near Mecca), where the Prophet used to preach Islam, and where many of the disciples, among them Omar, accepted the Faith . . . Baihaki in his Khilafiat has stated upon the authority of Abu Bakr Obaidulla bin Zubair that [the Caliph] Abu Bakr (may God be pleased with him) had a house in Mecca which he bestowed in charity upon his children, and that it is still in existence . . . And Saad ibn Abi Wakkas bestowed in charity his houses in Medina and Egypt upon his children, and that wakf is still in existence, and [the Caliph] Osman (may God be pleased with him) made a wakf of Ruma, which exists until to-day, and Amr Ibn al-Aas [the Amru of European history], of his lands called Wahat in Tayef and of his houses in Mecca and Medina upon his children, and that [wakf] also is still continuing . . . According to Abu Yusuf the wakif may lawfully retain the governance of the trust, or reserve the profits for himself during his lifetime. This has been fully dealt with by Kuduri in two parts . . The jurists, Ahmed ibn-i-Abi Laila, Ibn Shabarma, Zahri, and others, agree with Abu Yusuf. Mohammed alone holds a contrary opinion . . . Abu Yusuf bases his rule upon the practice and sayings of the Prophet himself who used to eat out of the produce of the lands dedicated by him .... Another proof in support of Abu Yusuf's rule is that the meaning of wakf is to extinguish the right of property in one's self and consign it to the custody of God. Therefore, when a person reserves the whole or a portion of the profits for himself, it does not interfere with the dedication, for that also implies the approval of the Almighty and is lawful . . . For example, if a man were to dedicate a caravanserai and make a condition that he may rest in it, or a cistern and condition that he should take water from it, or a cemetery, and say that he may be buried there, all this would be lawful. [Further] our Prophet (may the blessings of God be with him) has declared that a man's providing for his subsistence is a sadakah [an act of piety or charity]. This Hadis has been substantially handed down by a large number [of people] and is authentic, and Ibn Maja states from Mikdam bin Maadi Karib that the Prophet declared that no gain of a man is so meritorious as that which he earns by the labour of his hands; and that which he provides for the maintenance and support of himself, the people of his household, his children, and his servants, is a sadakah. And Imam Nisai from Balia and he from Buhair has given the same tradition in these words:-'Whatever thou providest for thyself is a sadakah.' Ibn Haban in his Sahih states that Abu Said reports from the Prophet that any one who acquires property in a lawful manner, and provides therewith for his maintenance and for that of the other creatures of God, gives alms in the way of the Lord. . . . And Dar Kutni reports from Jabir that the Prophet (may God's blessing be with him) . . . declared that all good acts are sadakah and that a man providing subsistence for himself and his children and his belongings, and for the maintenance of his position, is giving charity in the way of God. . Tibrani has reported from Abi Imama that the Prophet of God declared that a man making a provision for his own maintenance, or of his wife, or of his kindred, or of his children, is giving sadakah. And in the Sahih of Muslim it is stated from Jabir that the Prophet told a man to make a beginning with himself and give the remainder to his kinsfolk."

1089. Justice Ameer Ali further on page 434 of the report observed that the words "charitable" and "religious" must be understood from a Mussulman and not from an English point of view. His view was concurred by Justice O'Kinealy and His Lordship also observed on page 437 of the report that "it must be an endowment for religious or charitable purposes; and if we want to interpret a document of that kind, what we must naturally look to is what is really meant by the words "religious" or "charitable" among Muhammadans. As an example, we know that the words "charitable purpose" in Scotland have quite a different meaning from that in which they are used in England. And so in India, in judging of what is really meant by the words "religious" and "charitable" by a Muhammadan, we must take the view which their law takes, and not what is to be found in the English Dictionary."

1090. The term "waqf" literally means detention. The legal meaning of waqf according to Abu Hanifa, is the detention of a specific thing in the ownership of the wakif or appropriator, and the devoting or appropriating of its profits or usufruct "in charity on the poor or other good objects." According to the two disciples, Abu Yusuf and Muhammad, waqf signifies the extinction of the appropriator's ownership in the thing dedicated and the detention of the thing in the implied ownership of God, in such a manner that its profits may revert to or be applied "for the benefit of mankind". A waqf extinguishes the right of the wakif or dedicator and transfers ownership to God. By dedication and declaration the property in the wakif is divested and vests in the Almighty.

1091. For the present purpose an idea of what constitute waqf in Islam is sufficient and we need not to go into further details. With respect to 'waqf' as recognised in Islamic Law, since hereat we are concerned with the relevant legislative aspect of the matter as it operated in India, we shall deal with Islamic Law in this respect in detail while dealing with the issue of validity of creation of waqf with respect to the property in dispute.

Administration of Waqfs 1092. The concept of waqf in India got introduced with the establishment of Muslim rule. It appear that earlier 'Sultan' was the supreme authority over the administration of waqf properties and ultimate power vested in him. There was some decentralisation of the actual administration, control and supervision of waqf institutions. At the Centre, the Sadar-us-Sadar was entrusted with the overall control of waqfs administration in the empire. His main work was to supervise waqfs' administration and its properties. At the provincial level, it was Sadr-e-Subha and in District, Sadre-e-Sarkar used to look into the administration of waqfs. At the local level, the waqfs used to be looked after by Qazis who also looked after waqf cases. The administration of individual waqf was the responsibility of Mutawalli, which is still continuing. This kind of arrangement finds mention in detail in Fatwai Alamgiri said to be prepared under the command of Mughal Emperor Aurangzeb.

1093. During the reign of Indian sub-continent by East India Company, in the territory under their command so far as it had charitable and religious institutions of Hindus and Mohammedans, they were regulated by British Government exercising visitatorial powers. In exercise of this power, the British Government enacted several laws to prevent fraud and waste, and to secure honest administration of such institutions. The British Government did not interfere with the personal laws of Hindus and Muslim like inheritance, succession, marriage and religious institutions.

1094. In 1810, the general superintendence of religious and charitable endowments vested in Board of Revenue and the Board of Commissioners. Vide Bengal Regulations XIX of 1810 (The Bengal Charitable Endowment Public Building and Escheats Regulations, 1810), the Board of Revenue was put in possession of landed and other properties of charitable and religious endowments, of both Muslims and Hindus. The Regulations were obviously applicable to the area under the authority of East India Company. The said Regulations, however it appears, had no application to the area or to properties situated in Oudh for the reason that under the agreement of the East India Company with Nawab of Awadh (Lucknow), the said area of Oudh continued to be ruled by the "Nawabs" till its annexation in 1856.

1095. After the transfer of power from East India Company to British Government in 1857, a series of legislation came including those which were enacted with an object of proper administration of religious and charitable endowment. The Religious Endowments Act, 1863 (Act 20 of 1863) was passed and the properties relating to religious, charitable and public endowments were placed under the control of trustees, managers or superintendents. Local Committees were appointed which exercise the powers of the Board of Revenue or local agents.

1096. In respect to the Muslim in Oudh area, Oudh Laws Act XVIII of 1876 was enacted. Vide Section 3 thereof, the laws to be administered in the case of Mohammadans would be the same as in East Panjub. The East Punjab was governed by Punjab Laws Act IV of 1872 and Sections 5 and 6 thereof provide as under:

"5. In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions or any religious usage or institution, the rule of decision shall be--

(1) any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been, by this or any other enactment, altered or abolished, and has not been declared to be void by any competent authority;

(2) the Mahomedan law, in cases where the parties are Mahomedans,.... except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of the Act, or has been modified by any such custom as is above referred to."

"6. In cases not otherwise specially provided for, the Judges shall decide according to justice, equity and good conscience."

1097. In respect to certain specified waqfs in Husainabad area in Lucknow (Oudh), Husainabad Endowment Act, 1878 (Act 15 of 1878) was enacted.

1098. In 1908, by enacting new Code of Civil Procedure, Sections 92 and 93 were incorporated for the proper administration of trusts. Under these sections two or more persons having any interest in a trust could file a suit with the prior permission of the Advocate General in relation to a matter regarding the appointment and removal of trustees, matters relating to the sale, exchange or mortgage of trust property, etc. 1099. Upto 1913 a waqf was valid if the effect of the deed of wqkf was to keep the property in substance to charitable uses. In Abul Fata Mohammad Vs. Rasamaya, 22 IA 76 it was held by Privy Council that if the primary object of the waqf was the aggrandizement of the family and the gift to charity was illusory whether from its small amount or from its uncertainty and remoteness, the waqf, for the benefit of the family was invalid and no effect could be given to it. This decision caused lot of protest and dissatisfaction amongst the Muslim communities in India since the said decision in particular paralyzed the power of Muslims to make a settlement in favour of family, children and descendants or what is known as waqf-alal-aulad. Consequently, the matter was represented by the Indian Muslims before Lord Curzon, the then Viceroy and Governor General of India canvassing that for family settlement by way of waqf from the time of Prophet Mohammad down to the present time an unbroken chain of evidence existed to show that the law of waqf-alal-aulad existed in all countries having Muslim population like Arabia, Central Asia, Persia, Afghanistan and India. It was represented that the precepts of the Prophet support the family settlement amongst Muslim by way of waqf. It is said that the following precepts of the Prophet were cited:

"The apostle of God said:

"When a Mussalman bestows on his family and kindered, for the intention of rewards, it becomes alms, although he has not given to the poor, but to his family and children."

The apostle of God said:

"There is one Dinar which you have bestowed in the Road of God, and another in freeing a slave, and another in alms to the poor, and another given to your family and children; that is the greatest Dinar in point of reward which you gave to your family."

The apostle of God said:

"The most excellent Dinar which a man bestows is that which he bestows upon his own family. Omme Salma says, "I said to the Prophet, is there any good thing for me of rewards, for my bestowing on the Sons of Abu Salmas. His sons are no otherwise than mine." The Prophet said: "Then give to them, and for you are rewards of that you bestow upon them"

The apostle of God said:

"Giving alms to the poor has the reward of one alms, but that given to kindered has two rewards; one the reward of alms, the other the reward of relationship. "The Prophet of God declared that a pious offering to ones family (to provide against their getting into want) is more pious than giving alms to beggars."

1100. Accepting the claims of Muslims in India, Mussalman Waqf Validating Act, 1913 (Act No. 6 of 1913) (hereinafter referred to as the "1913 Act") was enacted to validate the waqf created for the benefit of the members of family i.e. waqf-alal-aulad. This Act came into force on 07.03.1913. The preamble of 1913 Act shows that it was enacted to declare the rights of Muslims to make settlements of property by way of waqf in favour of their family, children and decedents. The term "waqf" was defined in Section 2 (1) as under :

"2. .......................

(1) "Waqf" means the permanent dedication by a person professing the Mussalman faith of any property for any purpose, recognized by the Mussalman law as religious, pious or charitable."

1101. Section 5 of 1913 Act states that nothing therein shall affect any custom or usage whether local or prevalent among Musalman or any particular class or sect. The definition of 'Waqf' under 1913 Act recognises the concept of waqf as known in Shariyat Law.

1102. As already stated, a waqf therefore is an unconditional and permanent dedication of property with implied detention in the ownership of God in such a manner that the property of the owner may be extinguished and its profit may revert to or be applied for the benefit of mankind except for purposes prohibited by Islam.

1103. It may, however, be clarified at this stage that a waqf is distinct from Sadaqah, Hiba and trust. In Islamic Law- Personal by B.R.Verma first published in 1940 (6th Edition published in 1986) (reprinted in 1991 by M.H.Beg and S.K.Verma) identify the above distinction on page 630-631 of the book as under :

Sadaqah Wakf (1)The corpus itself may be consummed.

(2)It is only a donation.

(3)The legal estate and not merely beneficial interest passes to charity to be held by trustees appointed by the donor. The trustee can dispose of the corpus itself.

(1)The income only can be sent.

(2)It is an endowment.

(3)The legal estate is transferred to God. It does not vest in the trustee or mutawalli who cannot deal with the corpus.

1104. The distinction between waqf and sadaqah is that in the case of former the income only can be spent while in the case of latter the corpus of the property may be consumed.

Hiba Wakf (1)It relates to absolute interest in the subject of the gift, the donee having a right not only to spend the usufruct but also the property itself.

(2)The donee is a human being.

(3)There are no limitations as to the object for which it can be made.

(4)A hiba to an unborn person is invalid.

(1)It is only the usufruct which can be spent and the corpus cannot be disposed of except under very limited conditions.

(2)The ownership is transferred to God.

(3)It is made for the benefit of mankind.

(4)A wakf may be made in favour of a succession of unborn persons.

Trust Wakf (1)No particular motive is necessary.

(2)The founder may himself be a beneficiary.

(3)It may be for any lawful object.

(4)the property vests in the trustee.

(5)A trustee has got larger power than a mutawalli.

(6)It is not necessary that a trust maybe perpetual, irrevocable or inalienable.

(7)It results for the benefit of the founder when it is incapable of execution and the property has not been exhausted.

(1)It is generally made with a pious, charitable or religious motive.

(2)The wakf cannot reserve any benefit for himself (except to some extent under Hanafi law).

(3)The ultimate object must be some benefit of mankind.

(4)The property vests in God.

(5)A mutawalli is only a manager or superintendent.

(6)A wakf is perpetual, irrevocable and inalienable.

(7)The cypres doctrine is applied and the property may be applied to some other object.

1105. Apparently, Islam is not a necessary condition for constitution of a waqf. It may be made by a Muslim or a non Muslim but the necessary condition for creation of a waqf is the object thereof. Ameer Ali in his book on Mohammedan Law (Fourth Edition) Volume I at page 200 has said "Any person of whatever creed may create wakf, but the law requires that the object for which the dedication is made should be lawful according to the creed of the dedicator as well as the Islamic doctrines. Divine approbation being the essential in the constitution of a wakf if the object for which a dedication is made is sinful, either according to the laws of Islam or to the creed of the dedicator it would not be valid." Thus a non Muslim may also create a waqf for any purpose which is religious under the Mohammedan Law. But the object of the waqf must be lawful according to the religious creed of the maker as well.

1106. Section 3 of 1913 Act empowers any person professing muslim faith to create a waqf in all other respects in accordance with the provisions of Muslim Law for the following among other purposes, i.e., for the maintenance and support, wholly or partially of his family, children and descendants etc. It would be useful to reproduce Section 3 as under :

"3. It shall be lawful for any person professing the Mussalman faith to create a waqf which in all other respects is in accordance with the provisions of Mussalman law, for the following among other purposes :-

(1)for the maintenance and support wholly or partially of his family, children or descendants, and (2)where the person creating a waqf is a Hanafi Mussalman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated :

Provided that the ultimate benefit is in such cases expressly or implicitly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character."

1107. 1913 Act, however, having not been given retrospective effect did not remove the hardship in its entirety created by the decision of Privy Council in Abul Fata Mohammad (supra) and in some later cases it was held that 1913 Act could not be construed as validating deeds executed before 07.03.1913.

1108. On 05.08.1923 the Mussalman Waqf Act, 1923 (Act No. XLII of 1923 (hereinafter referred to as "1923 Act") was enacted with the object of better management of waqf property and ensuring maintenance of proper accounts and its publication in respect of such properties. The aforesaid Act was applicable to the whole of British India at the relevant time and in 1948 the said words were substituted by the words "all the Provinces of India". The term "benefit", "mutwalli" and "waqf" were defined in Section 2 (a) (c) and (e) of 1923 Act, as under :

"2. In this Act, unless there is anything repugnant in the subject or context,-

(a)"benefit" does not include any benefit which a mutwalli is entitled to claim solely by reason of his being such mutwalli;

(b) ............................................

(c)"mutwalli" means any person appointed either verbally or under any deed or instrument by which a wakf has been created or by a Court of competent jurisdiction to be the mutwalli of a wakf, and includes a naib-mutwalli or other person appointed by a mutwalli to perform the duties of the mutwalli, and, save as otherwise provided in this Act, any person who is for the time being administering any wakf property;

(d).............................................

(e)"wakf" means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman law as religious, pious or charitable, but does not include any wakf, such as is described in section, 3 of the Mussalman Wakf Validating Act, 1913, under which any benefit is for the time being claimable for himself by the person by whom the wakf was created or by any of his family or descendants."

1109. Section 3 of 1923 Act placed an obligation on a Mutwalli to furnish certain particulars in respect to waqf property, income and expenses etc. within a period of six months from the date of commencement of the 1923 Act to the Court within the local limits of whose jurisdiction the property of the waqf, for which the said person is mutwalli, is situated. Non compliance of Section 3 was made penal vide Section 10 of the said Act.

1110. Section 10 of 1923 Act provides consequences on failure to comply with the provisions of Sections, 3, 4 and 5 and reads as under:

"10. Penalties.--Any person who is required by or under Sec. 3 or Sec. 4 to furnish statement of particulars or any document relating to a wakf, or who is required by Sec. 5 to furnish a statement of accounts, shall, if he, without reasonable cause the burden of proving which shall lie upon him, fails to furnish such statement or document, as the case may be, in due time, or furnishes a statement which he knows or has reason to believe to be false, misleading or untrue in any material particular, or, in the case of a statement of accounts, furnishes a statement which has not been audited in the manner required by Sec. 6, be punishable with fine which may extend to five hundred rupees, or, in the case of a second or subsequent offence, with fine which may extend to two thousand rupees."

1111. A question arose as to whether the Court while exercising power under Section 10 can proceed to look into the question as to whether any property which is denied to be a waqf property can be investigated and looked into so as to find out whether it is a waqf property within the meaning of Section 2(e) of the Act or not. This question came to be considered before a Hon'ble Single Judge of Patna High Court in (Syed) Ali Mohammad Vs. Collector of Bhagalpur, AIR 1927 Patna 189. The question was that of application of 1923 Act in respect to property where there was a dispute whether it was a waqf property or not. The petitioner before the High Court return a notice issued by the Collector including petitioner's property in the list of waqf properties stating that he was not incharge of any waqf property as defined in Section 2(e) of 1923 Act whereupon the Collector referred the matter to the District Judge who held the property as a waqf property and the question was whether the order of District Judge was within jurisdiction or not. It was held by the Hon'ble Patna High Court that there is no provision in the Act authorizing the Court, as defined in the Act, to determine as to whether any property which if denied to be a waqf property, is waqf property, within the meaning of the Act. The Act neither authorizes the Court to summon witnesses or to take evidence nor any procedure is prescribed for determining the question as to whether any property is a waqf property and no provision of appeal or revision is made if any such decision is made. It held that the Act applies to admitted waqfs and not to the properties which are denied to be the waqf properties.

1112. However, this view did not find favour with a Full Bench decision of Oudh Chief Court in Mohammad Baqar and another Vs. S. Mohammad Casim and others, AIR 1932 Oudh 210 where it was held that mere denial of a property as constituting a waqf property by a person would not deprive jurisdiction to the Court to consider whether the property is a waqf property under 1923 Act or not, otherwise, it would defeat the very objective of the Act. In the majority decision, the Court said that it is a recalcitrant Mutawalli to whom the Act intends to reach and if the jurisdiction of the Court is ousted as soon as a Mutawalli who has failed to observe the provisions of the Act denies the alleged waqf that would defeat the very objective of the legislature. It was held that the application of 1923 Act does not depend upon the attitude which a Mutawalli may take with regard to origin of an alleged waqf. The Court said:

"From the definition of the word "wakf" in Cl. (e), S. 2 of the Act it is clear that a wakf of the nature described in S. 3, Mussalman Wakf Validating Act, 1913, is excluded from the operation of the Act of 1923. With a view to determine whether an alleged waqf is inside or outside the scope of the Act the Court must make some inquiry. The inquiry may be limited merely to an interpretation of the instrument creating the wakf if there is any or to the scrutinizing of the terms of an oral wakf." (page211) 1113. The Court further held:

"It is true that the Act does not lay down any obligation on the Court as to the limits to which it should carry any inquiry which it may wish to make and no party is entitled to compel the Court to carry inquiry up to any particular stage. Indeed the Court may refuse to enter into any inquiry on the ground that the allegations of the parties disclose a controversy fit to be determined in a regular suit, and this, in my judgment, explains the absence of any special rule of procedure. The Court is invested with a discretion but it cannot, in my opinion, refuse to look into the merits of the case and stay its hands on the sole ground that the alleged mutawalli does not admit the alleged wakf." (page 213) 1114. It is not the case of any of the parties that any such statement was furnished in respect to the property in dispute in the Court as defined under Section 2 (b) of the said Act and the provisions of the said Act were complied with at all. It is not the case of the parties, i.e., the plaintiff, Suit-4, or in general, Muslim parties, that the aforesaid Act was applicable to the property in dispute or that the compliance of the said Act was made by the concerned Mutawalli. In the absence of any pleadings in respect to 1923 Act, we have no hesitation in not considering the matter in the light of 1923 Act inasmuch as if that be so first of all it would be necessary to consider whether the property in question was a waqf made in 1528 and continued to be so thereafter and secondly whether any person as Mutawalli was in possession of the property in question in 1923 and thereafter. We have not been shown any material to show the existence of the above facts and even if so then why and in what circumstances the provisions under 1923 Act were not complied with is also not explained. We also find that it is case of none that Section 12 or 13 of 1923 Act at the relevant time were attracted to the property in dispute and/or that the said property was exempted by the competent government from the operation of 1923 Act.

1115. The next legislation is Mussalman Waqf Validating Act (XXIII) of 1930 which made 1913 Act applicable to waqfs created before the commencement of 1913 Act with the rider that the transactions already completed in respect to right, title, obligations, liability etc. shall not be affected in any manner.

1116. Then came the 1936 Act (Act No. 13 of 1936) published in U.P. Gazette dated 20.03.1937. The above enactment was made for the better governance, administration and supervision of certain classes of Muslim waqf in the United Provinces of Agra and Oudh. Section 1 of 1936 Act provides for the commencement, and extent; and reads as under:

"(1) Short title, commencement and extent.--(1) This Act shall be called "the United Provinces Muslim Waqfs Act, 1936."

(2) This section and sections 2 to 4 shall come into force at once. The rest of the Act shall not come into force until such date as the local Government may, by notification in the Gazette, appoint in this behalf.

(3)It shall extend to the whole of the United Provinces of Agra and Oudh."

1117. We may mention at this stage that Section 1(2) enforces only Sections 2 to 4 at once and the rest of the Act was to come into force on such date as the local Government by notification in the gazette may appoint in this behalf. Sections 5 to 71 of the said Act came into force on 01.07.1941vide notification dated 20.06.1941 published in Government Gazette of the United Provinces Vol. LXIII, No. XXVI, Part-1, page 311 dated 20.06.1941 which reads as under:

"In exercise of the powers conferred by sub-section (2) of section 1 of the United Provinces Muslim Waqfs Act, 1936 (U.P. XIII of 1936), the Governor of the United Provinces is pleased to declare that sections 5 to 71 of the said Act shall come into force on the 1st day of July, 1941."

1118. The reason for delay in notification giving effect to Sections 5 to 71 of 1936 Act came to be noticed in Badrul Islam Vs. The Sunni Central Board of Waqf, U.P. Lucknow, AIR 1954 Allahabad 459 in para 8 of the judgement as under:

"It is true that the provisions of Ss. 5 to 71 of the Act did not come in force till some time in 1941. This fact has no bearing because it appears that the late enforcement of these provisions was due to the fact that what was provided by these provisions could not have been given effect to till the Central Board had found on investigation through proper agency the waqfs which were subject to the Act. It was no use enforcing these provisions which could not have been given effect to. It was for this reason that these sections were later enforced."

1119. It is said that the Commissioner of Waqf made survey under Section 4 and submitted his report. The Boards proceeded further by issuing notifications in respect to Sunni Waqfs on 26.02.1944 and in respect of Shia Waqfs on 15.01.1954 published in the gazette dated 23.01.1954, we are proceeding further presuming as if the rest of the provisions of the Act were made operative and will try to find out the answer to the above issues accordingly.

1120. Section 2 of 1936 Act provides for applicability of the Act to certain category of waqfs and inapplicability to some other category of waqfs and reads as under:

"2. Applicability of the Act.-(1) Save as herein otherwise specifically stated, this Act shall apply to all waqfs, whether created before or after this Act comes into force, any part of the property of which is situated in the United Provinces.

(2) This Act shall not apply to-

(i) a waqf created by a deed, if any, under the terms of which not less than 75 per cent, of the total income after deduction of land revenue and cesses payable to Government of the property covered by the deed of waqf, if any, is for the time being payable for the benefit of the waqif or his descendants or any member of his family.

(ii) a waqf created solely for either of the following purposes :

(a) the maintenance and support of any person other than the waqif or his descendants or any member of his family,

(b) the celebration of religious ceremonies connected with the death anniversaries of the waqif or of any member of his family or any of his ancestors,

(c) the maintenance of private immabaras, tombs and grave yards, or

(d) the maintenance and support of the waqif or for payment of his debts, when the waqif is a Hanafi Musalman; and

(iii) the waqfs mentioned in the schedule : Provided that if the Mutawalli of a waqf to which this Act does not apply wrongfully sells or mortgages, or suffers to be sold in execution of a decree against himself, or otherwise destroys the whole or any part of the waqf property, the Central Board may apply all or any of the provisions of this Act to such waqf for such time as it may think necessary.

Explanation. A waqf which is originally exempt from the operation of this act may, for any reason subsequently, become subject to such operation, for example, by reason of a higher percentage of its income becoming available under the terms of the deed for public charities."

1121. The Schedule referred to in Section 2(2)(iii) of 1936 Act is as under :

1. Waqfs governed by Act XV of 1878.

2. Wazir Begam Trust, Lucknow.

3. Agha Abbu Sahib Trust, Lucknow.

4. Shah Najaf Trust, King's side, Lucknow, and Queen's side, Lucknow.

5. Kazmain Trust, Lucknow.

1122. Section 3 contains certain definitions as under:

"3. In this Act, unless there is anything repugnant in the subject or context--

(1) Interpretation clauses.--"Waqf" means the permanent dedication or grant of any property for any purpose recognized by the Musalman law or usage as religious, pious or charitable and, where no deed of waqf is traceable, includes waqf by user, and a waqif means any person who makes such dedication or grant."

(2) "Beneficiary" means the person or object for whose benefit a waqf is created and includes religious, pious or charitable objects, and any other object of public utility established for the benefit of the Muslim community or any particular sect of the Muslim community."

(3) "Mutawalli" means a manager of a waqf or endowment and includes an amin, a sajjadanashin, a khadim, naib mutawalli and a committee of management, and, save as otherwise provided in this Act, any person who is for the time being in charge of or administering, any endowment as such.

(4) "Family" includes--

(a) Parents and grand-parents.

(b) Wife or husband.

(c) Persons related through any ancestor, male or female.

(d) Persons who reside with, and are maintained by, the waqif, whether related to him or not.

(5) Property includes Government securities and bonds, shares in firms and companies, stocks, debentures and other securities and instruments.

(6) "Prescribed" means prescribed by rules made under this Act.

(7) "Court" means, unless otherwise stated either expressly or by implication, the court of the District Judge or any other court empowered by the local Government to exercise jurisdiction under this Act.

(8) "Net income" means the total income minus the land revenue and other cesses payable to Government and to local bodies:

Provided that in the case of land paying land revenue the recorded income shall be deemed to be the total income."

1123. Chapter I which has Sections 4 to 24 deals with Survey of Waqfs and Central Board of Waqfs. Section 4 deals with the Survey of Waqfs; Section 5 deals with the Commissioner's report and its publication in the Gazette; and, read as under:

"4. (1) Survey of waqfs.--Within three-months of the commencement of this Act the local Government shall by notification in the Gazette appoint for each district a gazetted officer, either by name or by official designation for the purpose of making a survey of all waqfs in such district, whether subject of this Act or not. Such officer shall be called the Commissioner of waqfs."

(2) The Local Government may, from time to time when necessary cancel any appointment under sub-section (1) or make a new appointment.

(3) The "Commissioner of waqfs" shall, after making such inquiries as he may consider necessary, ascertain and determine--

(a) the number of all Shia and Sunni waqfs in the district;

(b) the nature of each waqf;

(c) the gross income of property comprised in the waqf;

(d) the amount of Government revenue, cesses and taxes payable in respect of waqf property;

(e) expenses incurred in the realization of the income and the pay of the mutawalli of each waqf if the waqf is not exempted under section 2; and

(f) whether the waqf is one of those exempted from the provisions of this Act under section 2:

Provided that where there is a dispute whether a particular waqf is Shia waqf or Sunni waqf and there are clear indications as to the sect of which it pertains in the recitals of the deed of waqf, such dispute shall be decided on the basis of such recitals.

(4) In making such inquiries as aforesaid the Commissioner of waqfs shall exercise all the powers of a civil court for summoning and examining witnesses and documents, making local inspections, appointing commissioners for examination of witnesses, examining of accounts and making local investigations.

(5) The Commissioner of waqfs shall submit his report of inquiry to the local Government.

(6) The total cost of carrying out the provisions of this section shall be borne by the mutawallis of all waqfs to which the Mussalmans Waqfs Act, 1923, applies in proportion to the income of the property of such waqfs situated in the United Provinces.

(7) Notwithstanding anything in the deed or instrument creating any waqf, any mutawalli may pay from the income of the waqf property any sum due from him under sub-section (6).

(8) Any sum due from a mutawalli under sub-section (6) may, on a certificate issued by the local Government, be recovered by the Collector in the manner provided by law for recovery of an arrear of land revenue.

5. Commissioner's report.--

(1) The local Government shall forward a copy of the Commissioner's report to each of the Central Boards constituted under this Act. Each Central Board shall as soon as possible notify in the Gazette the waqfs relating to the particular sect to which, according to such report, the provisions of this Act apply.

(2) The mutawalli of a waqf or any person interested in a waqf or a Central Board may bring a suit in a civil court of competent jurisdiction for a declaration that any transaction held by the Commissioner of waqfs to be a waqf is not a waqf, or any transaction held or assumed by him not to be a waqf is a waqf, or that a waqf held by him to pertain to a particular sect does not belong to that sect, or that any waqf reported by such Commissioner as being subject to the provisions of this Act is exempted under section 2, or that any waqf held by him to be so exempted is subject to this Act:

Provided that no such suit shall be instituted by a Central Board after more than two years of the receipt of the report of Commissioner of waqfs, and by a mutawalli or person interested in a waqf after more than one year of the notification referred to in sub-clause (1):

Provided also that no proceedings under this Act in respect of any waqf shall be stayed or suspended merely by reason of the pendency of any such suit or of any appeal arising out of any such suit.

(3) Subject to the final result of any suit instituted under sub-section (2) the report of the Commissioner of waqfs shall be final and conclusive.

(4) The Commissioner of waqfs shall not be made a defendant to any suit under sub-section (2) and no suit shall be instituted against him for anything done by him in good faith under colour of this Act."

1124. Sections 6, 7 and 8 of 1936 Act show that there shall be two Waqf Board namely, Shia Central Board and Sunni Central Board of Waqf. The constitution etc. thereof is provided from Section 6 to 17. Section 18 deals with the functions of the Central Board and reads as under:

"18. Function of the Central Board.- (1) The general superintendence of all waqfs to which this Act applies shall vest in the Central Board. The Central Board shall do all things reasonable and necessary to ensure that waqfs or endowments under its superintendence are properly maintained, controlled and administered and duly appropriated to the purposes for which they were founded or for which they exist.

(2) Without prejudice to the generality of the provisions of sub-section (1) the powers and duties of the Central Board shall be-

(a) to complete and maintain and authentic record of rights containing information relating to the origin, income, object, and beneficiaries of every waqf in each district;

1125. A careful reading of 1936 Act as also all the earlier enactments make it very clear that neither they create a waqf nor diminish or terminate a waqf nor affect a waqf in any other manner. On the contrary, the provisions have been made only to provide a statutory body for the better governance, administration and supervision of the waqfs to which the said Act apply. Further vide Section 2(1) of 1936 Act though it applies to all waqfs, whether created before the commencement of the Act or thereafter, if any part of the property of which waqf is situate in the United provinces but by virtue of Sub-section (2) of Section 2 certain classes of waqfs have been excluded. The exclusion under Sub-section (2) of Section 2 of 1936 Act is specific and has been categorized with precision. It would mean that only to the extent the waqfs are excluded by virtue of sub-section (2) of Section 2 all other waqfs, if a waqf validly created, would be governed by 1936 Act.

1126. The term 'Waqf' under 1936 Act has also been defined as a permanent dedication or grant of any property for any purposes recognized by the Musalman law or usage as religious, pious or charitable including waqf by user where no deed of waqf is traceable.

1127. However a cumulative reading of the entire 1936 Act shows that it does not govern the right of worship of Hindus or Muslims. as the case may be. The object of enactment is to provide better governance and administration in supervision of certain classes of Muslim Waqfs. The Waqfs to which the aforesaid Act applies are to be supervised and maintained by the Central Boards, namely, Shia Central or Sunni Central Board, as the case may be, constituted under Section 6 of the said Act.

1128. At this stage it may be pointed out that there was some ambiguity between Section 8(1)(i) and Section 12. Noticing the same, vide U.P. Muslim Waqfs (Amendment) Act 9 of 1953 which received the assent of the President on 26.02.1953, Section 12 was deleted and Section 8-A was inserted which was held valid by this Court in All India Shia Conference Vs. Taqi Hadi and others, AIR 1954 All. 124.

1129. In 1954, the Parliament enacted Waqf Act, 1954 (Act XXIX of 1954) (hereinafter referred to as '1954 Act'). The aforesaid Act though extended to whole of India except the State of Jammu and Kashmir but proviso to Section 1(3) thereof provides for the State of U.P., Bihar and West Bengal as under :

"Provided that in respect of any of the States of Bihar, Uttar Pradesh and West Bengal, no such notification shall be issued except on the recommendation of the State Government concerned."

1130. Consequently, 1954 Act did not apply to the State of U.P. since the State of U.P. had its own Act of 1936.

1131. Though not necessary for the category of the issues, with which we are concerned at this stage, but just to complete the legislative history, we find that the State legislature enacted U.P. Muslim Waqfs Act 1960 (U.P. Act No.XVI of 1960) (hereinafter referred to '1960 Act'). This U.P. Act, 1960 received assent of the President of India on 27th August, 1960 and was published in U.P. Gazette Extraordinary on 3rd September, 1960. Vide Section 1(3) of 1960 Act, it came into force at once. Section 2 of 1960 Act provides for the application of the Act and sub-section (1) thereof reads as under :

"2. Application of the Act.-(1) Save as herein otherwise specifically stated, this Act shall apply to all waqfs, whether created before or after the commencement of this Act, any part of the property comprised in which it situate in Uttar Pradesh, and to all the waqfs which at the time of the coming into force of this act were the superintendence of the Sunni Central Board or the Shia Central Board constituted under the U.P. Muslim Waqfs Act, 1936 (U.P. Act XIII of 1936).

1132. Vide Section 85 (2) of 1960 Act, 1936 Act as well as Husainabad Endowment Act, 1878 were repealed. Some more enactments were repealed by insertion of Section 11 of U.P. Act No.28 of 1971 whereby the following was inserted in Section 85(2) of 1960 Act :

"The following enactments are also hereby repealed in their application to any waqf to which this Act applies :

(1) the Bengal Charitable Endoments, Public Buildings and Escheats Regulation, 1810 (Act XIX of 1810) ;

(2) the Religious Endoments Act, 1863 (Act XX of 1863) ;

(3)the Charitable Endowments Act, 1890 (Act XX of 1890) ;

(4) the Charitable and Religious Trusts Act, 190 (Act XIV of 1920):"

1133. There was saving provisions in Section 85 by way of proviso which read as under :

"Provided that this repeal shall not affect the operation of those Acts in regard to any suit or proceeding pending in any Court or to an appeal or an application in revision against any order that may be passed in such suit or proceeding and subject thereto, anything done or any action taken in exercise of powers conferred by or under those Acts shall unless otherwise expressly required by any provision of this Act, be deemed to have been done or taken in exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken."

1134. Besides, Section 28 of 1960 Act provides saving of waqfs already registered and provides as under :

"Savings U.P. Act XIII of 1986.- A waqf registered before the commencement of this Act under the U.P. Muslim Waqf Act 1936, shall be deemed to have been registered under the provisions of this Act."

1135. 1960 Act now stands repealed by the Waqf Act, 1995 (Central Act) which has come into effect w.e.f. 1st January, 1996.

1136. Now reverting to 1936 Act, the general power of superintendence vested in the Central Board is to ensure that the waqfs or endowments under its superintendence are maintained, controlled, administered and duly appropriated to the purposes for which they were founded or for which they exist. The very functions of the Central Board, as such, do not relate directly to the right of worship of either the Hindus or Muslims in any manner. To some extent, however, it may be said that if a religious Waqfs is not properly maintained and administered, and, it causes hindrance or obstruction in observance of such religious activities for which the Waqf was created, the right of people in general who are entitled to use Waqf property for the purposes it is created, to that extent may be obstructed, but directly it cannot be said that 1936 Act in any manner deals with the right of worship of any of the member of the community for whose benefit the Waqf is created. It is moreso when the question of a member(s) of a community other than Muslim arises since neither his right of worship in any manner is sought to be affected by 1936 Act nor otherwise it does appear to do so.

1137. In respect to 1936 Act this question came to be considered by the Apex Court in Siraj-ul-Haq Khan and others Vs. The Sunni Central Board of Waqf U.P. and others, AIR 1959 SC 198 in an appeal taken against the judgment of this Court in Sunni Central Board of Waqf Vs. Siraj-ul-Haq Khan and others, AIR 1954 All. 88. The matter pertains to Darga Hazarat Syed Salar Mahsood Ghazi situated in the Village Singha Parasi, District Bahraich. The appellants were members of the Waqf Committee, Darga Sharif, Bahraich and filed a suit seeking a declaration that the properties of suit were not covered by the provisions of 1936 Act. The Court considered the words "the Mutawalli of a waqf or any person interested in a waqf" under Section 5(2) of 1936 Act, and, construing the same, it held that it would mean "any person interested" in what is held to be a waqf and in order to find out so it is open to the Commissioner of the Waqf to find out whether a property is a waqf or not and if he includes such a property in the list of waqf, the person challenging such decision would be included by the words "any person interested in a waqf" under Section 5(2). It would be appropriate to reproduce the relevant observations in para 16 of the judgment:

"The word 'waqf' as used in this sub-section must be given the meaning attached to it by the definition in S. 3 (1) of the Act and since the appellants totally deny the existence of such a waqf they cannot be said to be interested in the 'waqf'. The argument thus presented appears prima facie to be attractive and plausible; but on a close examination of S. 5(2) it would appear clear that the words "any person interested in a waqf" cannot be construed in their strict literal meaning. If the said words are given their strict literal meaning, suits for a declaration that any transaction held by the Commissioner to be a waqf is not a waqf can never be filed by a mutawalli of a waqf or a person interested in a waqf. The scheme of this sub-section is clear. When the Central Board assumes jurisdiction over any waqf under the Act it proceeds to do so on the decision of three points by the Commissioner of Waqfs. It assumes that the property is a waqf, that it is either a Sunni or a Shia waqf, and that it is not a waqf which falls within the exceptions mentioned in S. 2. It is in respect of each one of these decisions that a suit is contemplated by S. 5, sub-s. (2). If the decision is that the property is not a waqf or that it is a waqf falling within the exceptions mentioned by S. 2, the Central Board may have occasion to bring a suit. Similarly if the decision is that the waqf is Shia and not Sunni, a Sunni Central Board may have occasion to bring a suit and vice versa. Likewise the decision that the property is a waqf may be challenged by a person who disputes the correctness of the said decision. The decision that a property does not fall within the exceptions mentioned by S. 2 may also be challenged by a person who claims that the waqf attracts the provisions of S. 2. If that be the nature of the scheme of suits contemplated by S. 5(2) it would be difficult to imagine how the mutawalli of a waqf or any person interested in a waqf can ever sue for a declaration that the transaction held by the Commissioner of the waqfs to be a waqf is not a waqf. That is why we think that the literal construction of the expression "any person interested in a waqf" would render a part of the sub-section wholly meaningless and ineffective. The legislature has definitely contemplated that the decision of the Commissioner of the Waqfs that a particular transaction is a waqf can be challenged by persons who do not accept the correctness of the said decision, and it is, this class of persons who are obviously intended to be covered by the words "any person interested in a waqf ". It is well-settled that in construing the provisions of a statute courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective; an attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. In our opinion, on a reading of the provisions of the relevant sub-section as a whole there can be no doubt that the expression "any person interested in a waqf" must mean "any person interested in what is held to be a waqf ". It is only persons who are interested in a transaction which is held to be a waqf who would sue for a declaration that the decision of the Commissioner of the Waqfs in that behalf is wrong, and that the transaction in fact is not a waqf under the Act. We must accordingly hold that the relevant clause on which Mr. Dar has placed his argument in repelling the application of S. 5(2) to the present suit must not be strictly or literally construed, and that it should be taken to mean any person interested in a transaction which is held to be a waqf. On this construction the appellants are obviously interested in the suit properties which are notified to be waqf by the notification issued by respondent 1, and so the suit instituted by them would be governed by S. 5, sub-s. (2) and as such it would be barred by time unless it is saved under S. 15 of the Limitation Act."

1138. The above decision, however related to a matter where all the parties before the Court were Muslim and there was no question about the rights of non Muslim being affected by a decision of the Commissioner of Waqf or Central Board constituted under Section 6 of 1936 Act. In other words the decision noted above covered the persons following the same religious namely, Mohammadan Law but where such a dispute is raised by another party namely a person of different religion like, Hindu, Christian etc. whether 1936 Act at all will apply in that case or not, is not touched by the above judgment.

1139. In our view, since 1936 Act does not provide or control the right of worship of Hindu or Muslims, the rival dispute between the persons who are not Muslims, in the matter of an immovable property, whether it is waqf or not would not be governed by the provisions of 1936 Act but it would be open to non-muslim party to stake his claim without being affected in any manner by the provisions of 1936 Act.

1140. Our view find support from a Division Bench decision of Rajasthan High Court in Radhakishan and another Vs. State of Rajasthan and others, AIR 1967 Rajasthan 1. This case had arisen from the Waqfs Act, 1954 (in short "1954 Act") and interpretation of the words "any person interested therein" appearing in Section 6(1) came to be considered. The Court held that it would not empower the Board of Waqfs to decide the question whether a particular property is a waqf property or not if such a dispute is raised by a person who is stranger to waqf. The Division Bench therein referred to our Full Bench decision in Mohammad Baqar (supra) and observed that in reference to 1923 Act Patna, Lahore, Bombay and Madras High Court took a view that the District Judge has no jurisdiction to hold an inquiry into the nature of property where the alleged Mutawalli deny existence of waqf though the Allahabad Chief Court of Oudh took a different view.

1141. We may notice hereat that in the Full Bench judgment of Chief Court of Oudh in Mohammad Baqar (supra) there was no question with respect to jurisdiction of the District Judge where the existence of alleged waqf is denied by a stranger and not the Mutawalli, therefore, we do not find that the decision in Radhakishan (supra) in any way can be construed as a dissenting view to the decision of Oudh Chief Court in Mohammad Baqar (supra). This is evident from what has been held by the Rajasthan High Court in paras 24 and 25 reproduced as under:

"24. The present Act No. 29 of 1954 is, no doubt, an improvement on the Mussalman Wakf Act, 1923, but, in our view, this also does not empower the Board of Wakfs to decide the question whether a particular property is a wakf property or not, if such a dispute is raised by a person who is a stranger to wakf. This view is further confirmed by the provisions of section 59 of the Act which lays down that in any suit or proceeding in respect of a wakf or any wakf property by or against a stranger to the wakf or any other person, the Board may appear and plead as a party to the suit or proceeding.

25. To sum up the position, the Wakf Commissioner, though he is invested with the powers of a civil court in respect of certain matters, is not a civil court empowered to decide a disputed question whether a particular property is a wakf property or not. He has only to make a survey of wakf property existing in the State at the date of commencement of the Act and to make a report of survey to the State Government. When the State Government forwards the report to the Board of Wakfs, it becomes the duty of the Board to examine it. Thereafter the Board should publish, in the official gazette, a list of wakfs existing in the State. The law does not require the Commissioner to make a survey of wakf properties which have already become extinct as such. If he mentions in his report that certain properties were once wakf properties and can still be recovered as such, then the proper course, in our opinion for the Board is to file a suit, get them declared as wakf properties and to recover their possession. If a dispute about existence of a wakf is raised by a person who is stranger to the wakf, then it is neither fair nor proper for the Board to include such properties in the list published in the official gazette. Section 6, in our opinion, refers only to those triangular disputes which exists between the Board of Wakf, the mutawalli and a person interested in the wakf. If there is a dispute between these three on a question whether a particular property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf, it is open to any one of them to institute a suit in a civil court of competent jurisdiction. If a suit is instituted, the decision of the Civil Court will be final. If no such suit is filed by any one of them within a year from the date of publication of the list of wakfs the Court would not entertain the suit thereafter and the list of the wakf shall be final and conclusive between them. The object of Section 6 is to narrow down the dispute between the Board of Wakf, the Mutawalli and the person interested in the wakf as defined in section 3. In our view, it does not concern a dispute if it is raised by a person who is an utter stranger to the wakf. The list cannot be final and conclusive as against a non muslim who is not covered by Section 6(1) of the Act. Again, if a dispute whether a particular property is a wakf property or not, is raised by a non-muslim and a stranger to the wakf, the Board of Wakfs has no jurisdiction to decide the matter in its own favour under Section 27 and enter it in the register. The Board's decision under section 27 would not be binding against such persons. For the same reason, the Board would not be able to recover possession of the property from such persons under Section 36B of the Act."

1142. The judgment of Rajasthan High Court was taken in appeal before the Apex Court in The Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan and others, AIR 1979 SC 289. Two questions raised in appeal. Firstly, the meaning of the words "any person interested therein" in Section 6(1) and (4) of Waqf Act, 1954 and secondly, the power of Waqf Commissioner to make survey of waqf properties whether it includes an inquiry about certain property as a waqf property or not. The Apex Court referring to the various judgments considered by the Rajasthan High Court held that they would be of no assistance in interpreting the provisions of Waqf Act, 1954. However, it was held in para 23 of the judgment that the High Court was right in determining the scope of Section 6(1) of 1954 Act but fell in error in curtailing the ambit and scope of an inquiry by the Commissioner of Waqf under Section 4(3) and by the Board of Waqfs under Section 27 of the Act.

1143. For our purpose, the meaning assigned by the Apex Court in Section 6(1) to the words "any person interested therein" would be relevant to answer the issues noticed above and in this regard it would be appropriate to notice hereunder paras 31, 32, 33, 34, 35 and 36 of the judgment as under:

"31. That leaves us with the question as to the scope of sub-s. (1) of S. 6. All that we have to consider in this appeal is, whether if the Commissioner of Wakfs had jurisdiction to adjudicate and decide against the respondents Nos. l and 2 that the property in dispute was wakf property, the list of wakfs published by the Board of Wakfs under sub-s. (2) of S. 5 would be final and conclusive against them under S. 6(4) in case they had not filed a suit within a year from the publication of the lists. The question as to whether the respondents Nos.1 and 2 can be dispossessed, or their possession can be threatened by the Board of Wakfs by proceeding under S. 36B without filing a suit in a civil court of competent jurisdiction does not arise for our consideration."

"32. In the present case, the respondents Nos. 1 and 2 who are non Muslims, contended that they are outside the scope of sub-s. (1) of S. 6, and consequently, they have no right to file the suit contemplated by that sub-section and, therefore, the list of wakfs published by the Board of Wakfs under sub-s. (2) of S.5 cannot be final and conclusive against them under sub-s. (4) of S. 6, It was urged that respondents Nos. 1 and 2 were wholly outside the purview of sub-s. (1) of S. 6 and they must, therefore, necessarily fall outside the scope of the enquiry envisaged by sub-s. (1) of S. 4, as the provisions contained in Sections 4, 5 and 6 form part of an integrated scheme. The question that arises for consideration, therefore, is as to who are the parties that could be taken to be concerned in a proceeding under sub-s. (1) of S. 6 of the Act, and whether the list published under sub-s. (2) of S. 5 declaring certain property to be wakf property, would bind a person who is neither a mutawalli nor a person interested in the wakf."

"33. The answer to these questions must turn on the true meaning and construction of the word 'therein' in the, expression 'any person interested therein' appearing in sub-s. (1) of S. 6. In order to understand the meaning of the word 'therein' in our view, it is necessary to refer to the preceding words 'the Board or the mutawalli of the wakf'. The word 'therein' must necessarily refer to the 'wakf' which immediately precedes it. It cannot refer to the 'wakf property'. Sub-section (1) of S. 6 enumerates the persons who can file suits and also the questions in respect of which such suits can be filed. In enumerating the persons who are empowered to file suits under this provision, only the Board, the mutawalli of the wakf, and 'any person interested therein', thereby necessarily meaning any person interested in the wakf, are listed. It should be borne in mind that the Act deals with wakfs, its institutions and its properties. It would, therefore., be logical and reasonable to infer that its provisions empower only those who are interested in the wakfs to institute suits."

"34. In dealing with the question, the High Court observes:

"In our opinion, the words "any person interested therein" appearing in sub-section (1) of S. 6 mean no more than a person interested in a wakf as defined in clause (h) of S. 3 of the Act..........

It is urged by learned counsel for the petitioners that the legislature has not used in Section 6(1) the words "any person interested in a wakf" and, therefore, this meaning should not be given to the words "any person interested therein". This argument is not tenable because the words "any person interested therein" appear soon after "the mutawalli of the wakf" A and therefore the word 'therein' has been used to avoid re petition of the words "in the wakf" and not to extend the scope of the section to persons who fall outside the scope of the words "person interested in the wakf". The purpose of section 6 is to confine the dispute between the wakf Board, the mutawalli and a person interested in the wakf."

That, in our opinion, is the right construction.

35. We are fortified in that view by the decision of this Court in Sirajul Haq Khan v. The Sunni Central Board of Wakf, U.P. 1959 SCR 1287:(AIR 1959 SC 198). While construing S. 5(2) of the United Provinces Muslins Wakf Act, 1936, this Court interpreted the expression "any person interested in a wakf" as meaning 'any person interested in what is held to be a wakf', that is, in the dedication of a property for a pious, religious or charitable purpose. It will be noticed that sub-s. (1) of S.6 of the Act is based in sub-s. (2) of S. 5 of the United Provinces Muslims Wakf Act, 1936, which runs thus:

"The mutawalli of a wakf or any person interested in a wakf or a Central Board may bring a suit in a civil court of competent jurisdiction for a declaration that any transaction held by the Commissioner of Wakfs to be a wakf is not a wakf, or any transaction held or assumed by him not to be a wakf, or that a wakf held by him to pertain to a particular sect does not be- long to that sect, or that any wakf reported by such Commissioner as being subject to the provisions of this Act is exempted under section 2, or that any wakf held by him to be so exempted is subject to this Act."

The proviso to that section prescribed the period of one year's limitation, as here, to a suit by a mutawalli or a person interested in the wakf.

36. The two provisions are practically similar in content except that the language of the main enacting part has been altered in sub-s. (1) of S. 6 of the present Act and put in a proper form. In redrafting the section, the sequence, of the different clauses has been changed, therefore, for the expression "any person interested in a wakf" the legislature had to use the expression "any person interested therein". The word 'therein' appearing in sub-s. (1) of S. 6 must, therefore, mean 'any person interested in a waker' as defined in S. 3(h). The object of sub-s. (1) of S. 6 is to narrow down the dispute between the Board of Wakfs, the mutawalli and the person interested in the wakf, as defined in S. 3 (h)."

1144. The Apex Court having said so as noticed above quoted the findings of the Rajasthan High Court with reference to Section 6 in para 37 of the judgment and in para 38 it says that it is in agreement with the reasoning of the High Court. The answer has further been crystallized by the Apex Court in paras 39 and 43 of the judgment as under:

"39. It follows that where a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the List. Such a person is not required to file a suit for a declaration of his title within a period of one year. The special rule of limitation laid down in proviso to sub s. (1) of S. 6 is not applicable to him. In other words, the list published by the Board of Wakfs under sub-s. (2) of S. 5 scan be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises."

"43. In view of the foregoing, the right of the respondents Nos. 1 and 2 in respect of the disputed property, if at all they have any, will remain unaffected by the impugned notification. They are at liberty to bring a suit for the establishment of their right and title, if any, to the property."

1145. As noticed above the Apex Court also referred to Section 5(2) of 1936 Act and observed that it is pare materia to Section 6(1) and (4) of Waqf Act, 1954.

1146. The above decision of the Apex Court in Radhakishan (supra) was followed in Board of Mulim Wakfs Vs. Smt. Hadi Begum and others, AIR 1992 SC 1083 where in para 10 of the judgment the Court briefly reproduced what was held in Radhakishan (supra) regarding the right, title and interest of a non-muslim with reference to the Waqf Act, 1954 which also contain the provisions, pari materia with 1936 Act, and held:

"The right, title and interest of a person who is non-muslim and is in possession of certain property is not put in jeopardy simply because that property is included in the list published under sub-sec. (2) of S. 5 and he is not required to file a suit in a Civil Court for declaration of his title within the period of one year and the list would not be final and conclusive against him. Sub-sec. (4) of S. 6 makes the list final and conclusive only between the Board, the mutawalli and the person interested in the wakf." (para 10) 1147. To the same effect is a decision of an Hon'ble Single Judge in Marawthwada Wakf Board Vs. Rajaram Ramjivan Manthri and others, AIR 2002 Bom. 144. With reference to Waqf Act 1954, in para 19 of the judgement, it observed:

"Therefore, from the above, it is extremely clear that the respondent No. 1, who is a non-Muslim, being a Hindu, could not file a suit u/S. 6 of the Wakf Act, 1954, but he cannot be barred from filing a suit especially in view of the fact that his right, title and interest have been jeopardised in view of the notification issued by the Government of Maharashtra aforesaid."

1148. Another Hon'ble Single Judge of this Court in U.P. Sunni Central Waqf Board, Lucknow Vs. State of U.P. and others, 2006(6) ADJ 331 considering Act No.XVI of 1960 which contain similar provisions as that of 1936 Act, in para 9 of the judgment, observed:

"There is no dispute that the respondent No. 3 by virtue of sale deed became the owner of the property is dispute. The respondent No. 3 being non Muslim, the provisions of U.P. Muslim Waqf Act, 1960 was not applicable as held by this Court in the case of Chedda Singh and others Vs. Additional Civil Judge, Moradabad and others."

1149. A similar view was taken in an earlier decision of this Court in Chedha Singh and others Vs. Additional Civil Judge, Moradabad and others, 1996 Supp. AWC 189 which has been followed in U.P. Sunni Central Waqf Board, Lucknow (supra).

1150. Now, therefore, it is well settled that Section 5 of 1936 Act would have no application qua the rights of Hindus in general and plaintiff (Suit-1) in particular in respect to his right of worship. He would not be bound mere by inclusion of the property in a notification issued under Section 5(1) of 1936 Act. Moreover, in this particular case since the notification itself has been held invalid so far as the property in question is concerned, meaning thereby, in the eyes of law, there was no notification under Section 5(1) of 1936 Act and, therefore, also the restriction or benefit if any under the Act would not be applicable to either of the parties. No further provision has been shown to us from 1936 Act to affect the rights of Hindus in general and plaintiff (Suit-1) in particular affecting their/his right of worship etc..

1151. Therefore, both the issues are answered in favour of plaintiff (Suit-1) and defendants (Suit-4) in particular and in favour of Hindu parties in General. Issues No. 5(b) (Suit-4) and 9(a) (Suit-1) are answered accordingly.

1152. Issue No. 5(e) (Suit-4) reads as under:

"Whether in view of the findings recorded by the learned Civil Judge on 21.4.1966 on issue no.17 to the effect that "No valid notification under section 5(1) of the Muslim Waqf Act ( No. XIII of 1936) was ever made in respect of the property in dispute", the plaintiff Sunni Central Board of Waqf has no right to maintain the present suit?"

1153. Issue 5(e) (Suit-4) raises a very basic question about the maintainability of Suit-4 pursuant to the finding recorded by the leaned Civil Judge where no valid notification has been issued under Section 5(1) of the Act in respect to the property in dispute. The question is whether in such circumstances, plaintiff, Sunni Central Board of Waqf (Suit 4) has any right to maintain the present suit or not. This leads us to examine about the Waqfs covered by 1936Act as also when the Sunni Central Board of Waqf can file a suit.

1154. Sri P.N. Mishra, learned counsel for the defendant No.20 in suit 4 submitted that once it is held that there is no valid notification issued under Section 5 of 1936 Act and in view of the further fact that no attempt was made by any person including the alleged Mutawalli to get the alleged waqf registered under Section 38 with the plaintiff No.1 in Suit-4 and the Sunni Central Waqf Board has failed to take any steps to get the alleged waqf registered by issuing necessary directions, as the case may be, under Section 39/40 of 1936 Act, it is evident that the disputed building in suit is never treated to be waqf by them and therefore, since it was not a waqf, the Act itself is not applicable. Hence suit-4 by plaintiff No.1 is not maintainable. He also submitted that even otherwise there was no waqf at all, hence 1936 Act is inapplicable. Sunni Central Waqf Board has no right to file the above suit.

1155. We find that though under the various provisions of 1936 Act, the legislature has attempted and made various provisions so that any waqf in the State of U.P., if existed, may be known to the Sunni Central Waqf Board so that it may be properly supervised and administered. However, the Act does not contain any provision that even though a waqf has been created in accordance with Islamic Law yet it would not be governed by the Act and shall be beyond the power of supervision, administration of Sunni Central Waqf Board or Shia Central Waqf Board, as the case may be for the mere reason that it was not notified under Section 5 of the 1936 Act, not registered due to fault of the Mutawalli, if any or due to inaction of the Board itself. It is, however, admitted by learned counsel for the defendant No.20 that the Act neither creates a waqf nor extinguish the same if the same is already in existence. In these circumstances, particularly in the absence of any provision in the Act, we have to consider whether there is any intrinsic indication in the Act to necessarily exclude such a waqf from the purview of 1936 Act merely for its non notification or registration etc. with the Board. If we find that there is no such intrinsic hint in the Act also then to accept the submission, wide enough, as advanced by Sri Mishra that even though there is a valid waqf, if it is not notified or registered with the Board or if no person has filed a suit for declaration that there is no waqf within the prescribed limitation, such waqf even if validly created would not be covered by 1936 Act, would mean that we have read certain words in the statute which do not actually exist. It travels in the realm of casus omissus which normally this Court shall not presume unless there is a necessary compulsion to do so. Considering the basic purpose for which the 1936 Act was enacted we find it difficult to read any such words in the statutes.

1156. The Waqf Act, 1954 though not applicable to the State of U.P. but therein the provisions are mostly pari materia with 1936 Act. To start with there also was no provision which restrain the Central Board or anyone to initiate proceedings for enforcing rights on behalf of a waqf not registered with the Board but later on Section 55-E was inserted therein by Act No. 69 of 1984 which bar enforcement of right on behalf of unregistered waqf by anyone which included the Waqf Board also. It reads as under:

"55-E. Bar to the enforcement of right on behalf of unregistered waqfs.-(1) Notwithstanding anything contained in any other law for the time being in force, no suit, appeal or other legal proceeding or the enforcement of any right on behalf of any waqf which has not been registered in accordance with the provisions of this Act, shall be instituted or commenced or heard, tried or decided by any Court after the commencement of the Waqf (Amendment) Act, 1984, or where any such suit, appeal or other legal proceeding had been instituted or commenced before such commencement, no such suit, appeal or other legal proceeding shall be continued, heard, tried or decided by any Court after such commencement unless such waqf has been registered, after such commencement unless such waqf has been registered, after such commencement, in accordance with the provisions of this Act.

(2) The provisions of sub-section (1) shall apply, as far as may be, to the claim for set-off or any other claim made on behalf of any waqf which has not been registered in accordance with the provisions of this Act."

1157. We may notice that neither any similar provision was made in 1936 Act nor in Act No. XVI of 1960, therefore, it would not be appropriate to read something in U.P. Waqf Act, 1936 which actually did not find mention therein.

1158. We may clarify at this stage that a provision pari materia with Section 55-E of 1954 Act has been included in Waqf Act, 1995 in Section 87 but we are not concerned thereto in this case.

1159. A collective reading of various provisions of 1936 Act shows that any 'waqf' defined under Section 3(1), whether existed at the time when 1936 Act came into force, or, came into existence subsequently, unless excluded under Section 2(2), would be covered by Section 2(1). In the present suits, there is an issue no. 6 (Suit-3) questioning the very existence of a 'Waqf' and, therefore, unless that issue is answered in favour of the plaintiffs (Suit-4), it can obviously be not said that the property in dispute constituted 'a Waqf' under Section 3(1) of 1936 Act and, therefore, will be covered by Section 2(1) of 1936Act since it is not excluded by Section 2(2). Apparently the purpose of survey and notification under Section 5(1) is to identify the Waqfs as also the concerned Central Board which would exercise the power of superintendence over the Waqf concerned i.e. whether it is Sunni or Shia. Absence of a notification under Section 5(1) in respect to a property which is a 'Waqf' otherwise would not result in exclusion of other provisions of 1936 Act. The function of Central Board and its power of superintendence is not circumscribed to the 'Waqfs' as notified under Section 5(1) of the Act.

1160. A perusal of Section 18 on the contrary shows that general power of superintendence of all Waqfs to which "the Act applies" is vested in the Central Board. Similarly, Section 38 of the Act also says that there is an obligation regarding registration of 'Waqf' whether it is subject to 1936 Act or not and whether created before or after the commencement of the Act, at the office of Central Board of the sect to which the Waqf belongs, namely, if the Waqf is a sunni Waqf, with Sunni Central Board of Waqf, otherwise, with the Shia Central Board of Waqf. The obligation for making application for registration is upon the Mutwalli. Non compliance of Section 38 is an offence punishable under Section 60. In case of failure of a Mutwalli to get the Waqf registered, the power is also conferred upon the Central Board itself to issue such a direction vide Section 40 of 1936 Act. Section 39 provides for maintaining a register of Waqfs by the Central Board containing particulars in respect to each Waqf. The said provision is not confined to only such Waqfs as are notified under Section 5(1) of 1936 Act. Section 47 confers power upon the Central Board to apply the Court seeking direction in cases of undisposed Waqf funds or where the directions in the deed of waqf are no longer sufficient to carry out the intention of the waqif or where is a case for the application of doctrine of cypres. Here also the entitlement of the Central Board to approach the Civil Court is not confined to the waqfs notified under Section 5(1). Section 48 and 49 also are applicable to "any waqf" to which 1936 Act applies and not confined to the waqfs notified under Section 5(1) of the Act. Similarly, Section 52 also provides for notice of suits to the Central Board where any suit relating to title to any waqf property or to the rights of a Mutwalli is instituted in any civil Court. It is also not confined to the waqfs notified under Section 5(1) of the Act. Same is the position under Section 53 and 54 of the Act. We are, therefore, of the view that subject to Issue No. 6 (Suit-3), if answered in positive, i.e. in favour of plaintiffs (Suit-4) or against the plaintiffs (Suit-3),i.e. if it is held that mosque was dedicated by emperor Babar for worship by Muslims in general and results in creation of a public waqf property, in that condition, Issue No. 5 (e) has to be answered in favour of the plaintiffs (Suit-4) and it is to be held that the plaintiff, Sunni Central Board of Waqf, has a right to maintain the suit even though a valid notification under Section 5(1) of 1936 Act was never issued in respect to the property in question. Otherwise, this suit at the instance of Sunni Central Board of Waqf would not be maintainable.

1161. It is true that in Tamil Nadu Wakf Board Vs. Hathija Ammal, AIR 2002 SC 402 which was a case arising out of the provisions of Waqf Act, 1954 and in particular Sections 4, 5, 6 and 27 thereof, the Court held that since the Board itself possess power to decide whether a particular property is waqf property or not and its decision is final unless it is revoked or modified by a civil court by virtue of Section 27 of 1954 Act and, therefore, the Board cannot file a suit for declaration that any property is a waqf property and for its possession. However, in our view, the above judgment does not apply to a case governed by 1936 Act which contain no provision pari materia to Section 27 of 1954 Act.

1162. At this stage we may also refer an earlier decision of this Court in Afzal Hussain Vs. 1st Additional District Judge, AIR 1985 All. 79 where it was held that before taking an action under Section 57A, for recovery of possession of waqf property from unauthorised occupants, the first inquiry which the Board has to make is whether the immovable property in respect of which action is to be taken is entered as property of waqf in the register of waqfs maintained under S. 30 of 1960 Act being a jurisdictional issue. The above judgment also is not applicable for the reason that Section 57A provides for summery eviction of unauthorised occupants and is applicable only in such cases where the property is entered in the register of waqfs maintained under Section 30. Therefore, the dictum laid down therein cannot be extended to a case where a suit is to be filed by the Waqf Board for declaration of possession of a waqf even though it is neither notified under Section 5(1) nor registered with it under 1936 Act.

1163. Sri Siddiqui, however, tried to overcome the difficulty as a result of invalidation of the notification by the Civil Judge by contending that neither it afects the power of Sunni Board to maintain the suit nor shall bring into the question of limitation. Placing reliance on the Apex Court's decision in U.P. Shia Central Board of Waqf Vs. U.P. Sunnir Central Board of Waqf, AIR 2001 SC 2086, he contended that mere non-availability of the notification shall not deprive the Board from registering a property as a waqf property on its own inquiry. He further submits that the Hindu parties have also filed certain documents after obtaining certified copies thereof from the Sunni Board and that being so, it is not open to them to challenge that the waqf in question is not registered.

1164. The submissions of Sri Siddiqui, however, are not sustainable. It is though not disputed that U.P. Act 1936 contemplated enlistment of waqfs in the register of concerned Waqf Board in three ways, i.e., based on the list prepared by the Commissioner of Waqfs and consequential notification; on the application of the Mutwalli of the concerned waqf and registration by the concerned waqf after issuing notice by the Waqf Board itself but we have to look all these aspects in the light of the U.P. Act 1936 which continued to hold the field till 1960. Sections 1 to 4 came into force on 20.3.1937 but rest of the provisions, i.e., Sections 5 to 71 were enforced with effect from 1.7.1947. The only way in which the disputed waqf claimed to have been registered by the Waqf Board was the notification dated 26.2.1944 based on the report of the Commissioner. That notification was found invalid by the Civil Judge in its judgment dated 21.4.1966. It is nobody's case and even the counsel for the Waqf Board do not claim that till issue no. 17 was decided by the Civil Judge except of the notification dated 26.2.1944, there was any other procedure or method followed by the Sunni Board to enlist or register the concerned waqf in the register of the Waqf Board. Neither it is pleaded nor there is any material on record to substantiate the same. U.P. Act 1936 was substituted by U.P. Act 1960. This continued to hold the field till the Waqf Act 1995 was enacted by the Parliament. It is only in the pleadings which the Waqf Board filed after 1989, wherein for the first time it has pleaded that the waqf in question was registered by the Board under Section 30 of U.P. Act 1960. Till then there was no pleading, no material to show that the waqf in question was registered with the Board in any other manner except the notification dated 26.2.1944. That was declared invalid on 21.04.1966 by the Civil Judge. In the case of Shia Waqf Board (Supra) there was reference made under section 8 of U.P. Act 1960 since there was a dispute whether the concern waqf was a Sunni waqf or Shia waqf. The Apex Court held that where a dispute arose about the nature of the waqf whether it is a Shia waqf or a Sunni waqf, the only requirement under section 8 is the existence of dispute and not the existence of notification. Referring to section 6 (4) it further observed that if a notification has already been issued, then the restriction is that such dispute can be referred only within a period of one year and not after expiry thereof but so long the notification is not there, outer limit will not be attracted. We do not find this judgment to lend any help to the plaintiff (Suit-4) or Sunni Board in any manner.

1165. Similarly the pleading with respect to section 29 (8) also has no relevance in the case in hand since it is not the case of the Sunni Waqf Board that except the notification dated 26.02.1944 there was any other order of the waqf board which existed declaring the waqf in question as a waqf registered with the Board and the same having not been challenged under section 29(8) within time prescribed and thereafter could not have been raised in this regard. This pleas wholly baseless and is not attracted in these matters.

1166. Even otherwise, Suit-4 has been filed not only by the Sunni Central Waqf Board but there are nine more individual muslim parties being plaintiffs no. 2 to 10. It is obvious that they are muslims and, therefore, would be interested in the property in dispute to which they claim to be a waqf property. The right to file a suit by a muslim in respect to a property claimed to be a "waqf property" came to be considered before a Division Bench in Anjuman Islamia Vs. Najim Ali and others, AIR 1982 MP 17 and in para 7 of the judgement it held:

"7. We shall first consider the question whether the suit was not tenable at the instance of the plaintiff. In brief S. 195 of the Principles of Mohammedan Law by Mulla (18th Edition), is the complete answer to this question, which contemplates that a suit for a declaration that property belongs to a wakf can be brought by Mohammedans interested in the wakf. Anjuman is a society of Mohammedans registered under the Societies Act (Act No. 21 of 1860), as per registration certificate No. 104 of 1960-61 (Exhibit P-5). Admittedly the members of plaintiff Anjuman and its president Shri Mohd. Abdul Qadir (PW 1) are residents of Chhatarpur and belong to Muslim community. They are, therefore, persons very much interested in the property in suit which they claim to be wakf property. The suit, therefore, instituted at their instance would be perfectly competent and tenable and the learned District Judge was wrong in holding otherwise."

1167. In the absence of any other precedent persuading us to take a different view, we find ourselves in respectful agreement thereto. We therefore hold that Suit-4 cannot be said to be not maintainable provided the issue regarding the very nature of the disputed property whether it is a waqf or not is decided in favour of the plaintiffs (Suit-4) i.e. subject to the issue as to whether the disputed property is a waqf or not, i.e., issue no. 6 (Suit-3) if decided in favour of plaintiffs (Suit-4), i.e., defendants (Suit-3)."

16. The above discussion clearly shows that registration or no registration of a waqf under the provisions of relevant statute applicable from time to time would not affect nature of waqf once created since property in waqf once created shall always remain waqf property and it cannot cease its nature merely on the ground that it was not registered under the waqf Act applicable at the relevant time. Further the property of a waqf cannot be sold out by a Mutwalli inasmuch as no such power is vested in him.

17. In Ahmed G.H. Ariff and Ors. Vs. Commissioner of Wealth Tax, Calcutta, AIR 1971 SC 1691 this aspect has been dealt with and the Court said "A Mutawalli has no power, without the permission of the court, to mortgage, sell or exchange wakf property or any. part thereof unless he is expressly empowered by the deed of wakf to do so."

18. It is not the case of petitioner that any such provision was made in waqf deed entitling Mutwalli or the person managing wakf to sell or transfer ownership rights over wakf property to anyone else.

19. Learned counsel for the petitioner sought to counter the aforesaid issue by referring to the averments made in para 14 to the writ petition that before executing sale deed, on 17.8.1970 a permission was obtained from District Judge, Kanpur in Misc. Case No.125 of 1958 which was granted by District Judge vide order dated 13.10.1958 but no such order has been placed on record either before the Court below or before this Court.

20. Having appreciated nature of waqf and its legal consequences etc. according to relevant Muslim Law, I find no manifest error in the impugned judgment warranting interference in this writ petition. All arguments advanced by petitioner in view of the above discussion stands negated.

21. The writ petition therefore lacks merit. It is accordingly dismissed.

22. No order as to costs.

Order Date :- 30.11.2012 KA