Hon'ble Rajan Roy,J.
(Per: Tarun Agarwala,J.) (Delivered on: 9th April, 2014) The facts leading to the filing of the writ petition is, that one Hazi Sheikh Abdul Samad created a private waqf which was registered on 4.8.1931 as 1-A. A second list of the properties was registered on 3.1.1956 as 136. In this waqf, a provision was made that the male son would become the mutawalli and in the absence of a male lineage, the daughter's son would become the mutawalli.
In 1964, Hazi Abdul Hai, filed suit No.64 for a declaration that he should be declared as a mutawalli. This suit was partly decreed on 24.5.1982 in respect of property No.1-A and was dismissed in respect of property No.136. Two First Appeals were filed. Zakirullah and others filed First Appeal No.457 of 1982 and Mohammad Ahmad filed First Appeal No.83 of 1982. During the pendency of these appeals, one of the respondents Kaniz Fatima, who was the wife of the plaintiff Hazi Abdul Hai, died on 22.4.1985. A substitution application was filed praying that her husband Hazi Abdul Hai should be substituted. Hazi Abdul Hai, i.e., the plaintiff filed an objection contending that his son Nizamul Hai, who was born out of the wedlock from Kaniz Fatima should also be substituted. Consequently, a dispute arose as to whether Nizamul Hai was the son of the plaintiff or not. The High Court, by an order dated 20.3.1988, remitted the matter to the trial court under Order 22 Rule 5 of the C.P.C. to give a finding on this issue.
On account of the increase in the pecuniary jurisdiction, the First Appeal filed before this High Court was transferred to the lower appellate court. In the meanwhile, the plaintiff Hazi Abdul Hai died on 30.4.1999 and, upon his death, a substitution application was filed by Nizamul Hai for his substitution. The lower appellate court, by its order dated 19.1.2000 remitted the issue to the trial court.
Pending disposal on this issue, the petitioner, Nizamul Hai, filed an application dated 7.5.1999, under Section 32 (g) of The Waqf Act,1995 before the U.P. Sunni Central Waqf Board, praying that he should be declared as a mutawalli. Initially this application was allowed by the Board by its order dated 20.9.1999, but, subsequently, this order was recalled on a recall application being filed. Thereafter, the Board, by an order dated 4.9.2000, rejected the application of the petitioner holding that the paternity of the petitioner was disputed, which was a subject matter of consideration in the appeal pending before the lower appellate court. By the same order, the Board appointed Ahmad Jamal, respondent No.3, as the mutawalli. Against this order, the petitioner filed Writ Petition No.47155 of 2000, which was dismissed by a judgment dated 26.10.2006, on the ground, that the petitioner has an alternative remedy of filing an appeal under Section 83 of the Waqf Act before the Tribunal. Based on this order of the High Court, the petitioner filed an appeal under Section 83 of the Waqf Act being Appeal No.265 of 2007 before the Tribunal, which is still pending consideration.
In the meanwhile, while these proceedings were going on before the Waqf Board, the trial court decided the issue of paternity and, by an order dated 8.3.2001, held that the petitioner was not the son of Kaniz Fatima and Hazi Abdul Hai (the plaintiff). This finding of the trial court was objected by the petitioner before the lower appellate court. The lower appellate court, by an order dated 25.11.2004, set aside the order of the trial court dated 8.3.2001 and held, that on the basis of the evidence that was brought on record the petitioner was the son of Kaniz Fatima and Hazi Abdul Hai. The lower appellate court, by its order dated 25.11.2004, disposed of the substitution applications substituting the petitioner Nizamul Hai and Ahmad Jamal, respondent No.3, as the legal representatives of Kaniz Fatima and Hazi Abdul Hai. The lower appellate court substituted the name of the petitioner on the finding that he is the son of Kaniz Fatima and Hazi Abdul Hai and substituted the name of Ahmad Jamal, respondent No.3, on the basis that he has been declared as a mutawalli in place of Hazi Abdul Hai.
The order of the lower appellate court dated 25.11.2004 has not been challenged by the petitioner or by respondent No.3, but the brother of respondent No.3, Ahmad Jamal questioned the said order by filing writ petition No.11862 of 2005, which was dismissed by a judgment of this Court dated 21.7.2005, the review of which was also dismissed on 24.10.2005. The writ court while dismissing the writ petition of the brother of respondent No.3, held-
"Once the petitioner did not contest the application of the respondent no.1, he can not be allowed to open the issue before this Court. His contention that the respondent no.1 would lay claim on the property appears to be misplaced because impleadment and substitution only give a right to the person to take part in the proceedings but that by itself will not create any right in his favour, which has to be established by bringing on record evidence to that effect after hearing the parties on merit. Thus, in my opinion this writ petition is misconceived and is accordingly dismissed."
On the basis of the finding of the lower appellate court, dated 25.11.2004 holding the petitioner to be the son of Kaniz Fatima and Hazi Abdul Hai, the petitioner filed a fresh application dated 17.6.2010, before the Waqf Board praying that in view of the finding given by the lower appellate court, respondent No.3 should be removed as mutawalli and that the petitioner should be appointed as the mutawalli of the waqf. This application was rejected again by the Waqf Board by its order dated 21.10.2010. By another order of the Board dated 25.10.2010, the respondent No.3 was again appointed as the mutawalli. The petitioner, being aggrieved by the said orders dated 21.10.2010 and 25.10.2010, has filed the present writ petition praying for the quashing of the orders and for a direction that he should be appointed as the mutawalli.
We have heard Sri Keshari Nath Tripathi, the learned senior counsel assisted by Sri P.K.Mishra, the learned counsel for the petitioner, Sri Manish Goyal for respondent No.3 and Sri Puneet Kumar Gupta, the learned counsel for the Waqf Board.
The learned senior counsel for the petitioner submitted that the petitioner has been declared to be the son of Kaniz Fatima and Hazi Abdul Hai. The suit filed by the petitioner's father was decreed in which he was declared to be the mutawalli of the properties mentioned as 1-A and consequently, under the Waqf deed, the petitioner, being the male son, was entitled to be appointed as the mutawalli. The learned counsel submitted that the findings given by the lower appellate court in the substitution application has become final inter-se between the parties, which is now binding upon the opposite party and consequently, the respondent, who is claiming the mutawalli under the same waqf deed, being the son of the granddaughter, was liable to be removed when their exists a male descendant.
The learned senior counsel further submitted that the mother of respondent No.3 had contested the suit and filed her written statement denying the existence of the waqf contending that no waqf was executed by Hazi Sheikh Abdul Samad and, therefore, her son respondent No.3, namely, Ahmad Jamal was disqualified to hold the office of the mutawalli.
On the other hand, the learned counsel for respondent No.3, Sri Manish Goyal, contended that the petitioner was not entitled for any relief. The learned counsel contended that against the order of the Waqf Board, dated 4.9.2000, the petitioner had filed Writ Petition No.47155 of 2000, which was dismissed on the ground of alternative remedy and thereafter the petitioner had filed an application before the Tribunal, which is pending consideration, which fact had been deliberately concealed by the petitioner in his writ petition and consequently, on this basis, the petitioner was not entitled for any relief. The petitioner contended that the second application filed by the petitioner before the Waqf Board was barred by the principles of resjudicata and that a second writ petition on the same subject could not be entertained since in the earlier round, the petitioner had already been delegated to avail the alternative remedy by filing an application before the Tribunal. The learned counsel further submitted that the respondent seriously disputes that the petitioner is not the son of the plaintiff, Hazi Abdul Hai, which matter is yet to be adjudicated before the lower Appellate Court. The learned counsel submitted that the lower court has only allowed the substitution application substituting the name of the petitioner and that of respondent no.3 as legal representatives of the deceased plaintiff. Such substitution only gives a right to the person to take part in the proceedings and did not create any right in their favour. The learned counsel submitted that that respondent No.3 is claiming to be the Mutwalli on the basis that he is the son of the granddaughter of the Waqf (plaintiff) and according to the terms of the waqf deed was entitled to be declared as a Mutwalli and that the mere fact that his mother denied the existence of the waqf deed did not disqualify him from holding the office of the mutawalli.
The learned counsel further submitted that pursuant to the order of the Waqf Board dated 4.9.2000, respondent No.3 is working as a mutawalli and that there is no reason why the said respondent should be removed during the pendency of the appeal. The learned counsel submitted that upon the death of the plaintiff, the legal representatives of the deceased were required to be brought on record without which the trial cannot proceed and, any dispute as to who is the legal representative has to be decided by the Court. The learned counsel submitted that by allowing the substitution application, the legal representatives were brought on record, but did not entitle the legal representatives to represent the estate of the deceased and that the matter is pending consideration before the lower appellate court and till such time the decision was not given by the lower appellate court, the petitioner is only a legal representative to pursue the litigation.
Having heard the learned counsel for the parties at some length, we find that it is now well settled that determination of the question as to who is the legal representative of the deceased-plaintiff or defendant under Order 22 Rule 5 of the C.P.C. is only for the purpose of bringing the legal representative on record for conducting the legal proceeding and does not operate as resjudicata. This view was held in Suresh Kumar Bansal vs Krishna Bansal and another, 2010(2)SCC 162.
In Dasharath Rao Kate vs. Brij Mohan Srivastava, 2010(1)SCC 277, the Supreme Court held that an inquiry under Order 22 Rule 5 of the C.P.C. is of a summary nature. The Supreme Court held, "As a legal position, it cannot be disputed that normally, an enquiry under Order 22 Rule 5, CPC is of a summary nature and findings therein cannot amount to res judicata, however, that legal position is true only in respect of those parties, who set up a rival claim against the legatee."
In Jaladi Suguna (Dead) through L.Rs. vs. Satya Sai Central Trust and others, AIR 2008 (SC)2866, the Supreme Court held-
"Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, it can be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject matter of the suit, vis-a-vis other rival claimants to the estate of the deceased.
The provisions of Rules 4 and 5 of Order 22 are mandatory. When a respondent in an appeal dies, the Court cannot simply say that it will hear all rival claimants to the estate of the deceased respondent and proceed to dispose of the appeal. Nor can it implead all persons claiming to be legal representatives, as parties to the appeal without deciding who will represent the estate of the deceased, and proceed to hear the appeal on merits. The court cannot also postpone the decision as to who is the legal representative of the deceased respondent, for being decided along with the appeal on merits. The Code clearly provides that where a question arises as to whether any person is or is not the legal representative of a deceased respondent, such question shall be determined by the court. The Code also provides that where one of the respondents dies and the right to sue does not survive against the surviving respondents, the court shall, on an application made in that behalf, cause the legal representatives of the deceased respondent to be made parties, and then proceed with the case. Though Rule 5 does not specifically provide that determination of legal representative should precede the hearing of the appeal on merits, Rule 4 read with Rule 11 make it clear that the appeal can be heard only after the legal representatives are brought on record."
In the light of the aforesaid, we are of the considered opinion that an order on the substitution application under Order 22 Rule 5 of the C.P.C. is only for the limited purpose of representation of the estate of the deceased in a pending proceeding for the purpose of adjudication of that case. Such determination for such limited purpose does not confer on the person held to be the legal representative any right to the property, which is the subject matter of the suit viz-a-viz other rival claimants to the estate of the deceased. Since there is a dispute as to who is the legal representative, a decision in this regard is required to be taken on such dispute. At the present moment, the lower appellate court has substituted the petitioner as well as respondent No.3 as legal representative of the plaintiff. When the question of legal representative is determined by the lower appellate court and such legal representative is brought on record only then it can be said that the estate of the deceased is now represented.
In the light of the aforesaid, the Court is of the opinion, that the petitioner does not get any right to be appointed as a mutawalli at this stage pursuant to the order of the lower appellate court dated 25.11.2004, inasmuch as, the order of the lower appellate court dated 25.11.2004 was only for a limited purpose of representation of the estate of the deceased for the purpose of adjudication of that case.
In the light of the aforesaid, it is not necessary to deal with the other questions raised by the learned counsel for the respondents.
The writ petition fails and is dismissed with the direction to the lower appellate court to decide the appeal pending before it within six months from the date of presentation of a certified copy of this order.
We further direct that till the decision of the lower appellate court, respondent No.3, but will not alienate any property of the waqf.
Dated: 9.4.2014.
AKJ.