Kadar Batcha Sahib and Others vs Tamil Nadu Wakf Board

Varadarajan, J.—These second appeals arise out of a common judgment of the learned Subordinate Judge of Sivaganga in Appeal Suit Nos. 181 to 183 of 1971 which are arose out of Original Suit Nos. 513, 514 and 519 of 1970 on the file of the Court of the District Munsif, Sivaganga. The Defendant in Original Suit No. 513 of 1970 is the Appellant in Second Appeal No. 626 of 1973, the Defendant in Original Suit No. 514 of 1970 is the Appellant in Second Appeal No. 19 of 1973 and Defendants 1 and 2 in Original Suit No. 519 of 1970 are the Appellants in Second Appeal No. 534 of 1973. The Plaintiff in all the three suits, namely, the State Wakf Board, is the Appellant in Second Appeal Nos. 1661 and 1662 of 1973. The suits were filed for recovery of possession of the suit properties with past mesne profits at Rs. 100 per annum and future mesne profits. The suit properties are 1 acre 11 cents comprised in Survey No. 204/1 involved in Original Suit No. 513 of 1970; and 1 acre 89 cents comprised in Survey No. 188/1 involved in Original Suit No. 514 of 1970. Survey Nos. 188/1 and 20/1 are in Tiruppuvanam Village. The property involved in Original Suit No. 519 of 1970 is 2 acres 3 cents comprised in Survey No. 176/2 in Madapuram Village. Tiruppuvanam and Madapuram villages are in Sivagangai taluk.

The case of the Appellant in Second Appeal Nos. 1661 and 1662 of 1973 (State Wakf Board) is that the suit properties belonged originally to agori Pallivasal of Pudur, a hamlet of Tiruppuvanam village and had been alienated by persons in management of the Pallivasal. The Assistant Commissioner of Wakfs appointed u/s 4 of the Muslim Wakfs Act, 1954, made an enquiry as per the provisions of that section and field a report, exhibit A-1 dated 31st July 1956, saying that the suit properties belonged to agori Pallivasal. There upon a publication was made in the Gazette, exhibit A-2, on 22nd April 1959 and no suit having been filed questioning the notification within one year from the date of the publication, exhibit A-2 became final. The Wakf Board filed the suits u/s 15(2)(h) of the Muslim Wakfs Act, which enables the Board to take measures for recovery of lost properties of any wakf and contended that it was entitled to recover possession of the properties with mense profits, past and future. The Appellant in Second Appeal No. 626 of 1973 (the Defendant in Original Suit No. 513 of 1970) had purchased the properties involved in that suit from one Pacha Sahib and two others under exhibit B-1 and from Kader Pacha Sahib under exhibit B-2 on 13th March 1952 and 15th March 1953 respectively. There was a usufructuary mortgage over the property covered by exhibit B-1, which was in respect of the western 0-5-0 (chei) out of 1-0-0 (chei), of pallivasal chei, in favour of the vendee under exhibit B-1, under exhibit B-3, dated 13th April 1943. The usufructuary mortgage under exhibit B-3 appears to have been created when the village was unsurveyed. Exhibit B-1 shows that the land covered by exhibit B-3 had been surveyed and the survey number given therein is Section. No. 204/1 comprising 70 cents out of acre and 11 cents. The sale under exhibitB-2 was in respect of the remaining 41 cents in Section. No. 204/1. The Appellant in Second Appeal No. 19 of 1973 (the Defendant in Original Suit No. 514 of 1970) had purchased the properties involved in that suit from one Kottuthurai Sahib under exhibit B-9, dated 9th December 1953, from one Raj Mohammad Sahib under exhibit B-10, dated 17th December 1953, from one Habib Sahib under exhibit B-11, dated 7th October 1954 and from one Moideen Badsha Sahib under exhibit B-12, dated 23rd December 1957 respectively. Exhibits B-15 to B-26 are the copies relating to the properties involved in Original Suit No. 514 of 1970 during the years 1902 to 1920. There is no reference to the pallivasal in these copy deeds exhibits B-20 to B-26. The second Appellant in Second Appeal No. 534 of 1973 (the second Defendant in Original Suit No. 519 of 1970) is an assignee of the usufructuary mortgage in respect of the property involved in that suit under exhibit B-28, dated 9th August 1948 and the said assignment was executed by the mortgagee under exhibit B-27, dated 13th September 1944, executed by one Thaiyar Sultan Sahib and others. There is a reference to the pallivasal being the owner of the property in exhibit B-27. The defence was that the properties are not wakf properties, that none connected with Agori Pallivasal exercised any act of ownership with reference to these properties at any time and that the notification published in the gazette, exhibit A-2 was not binding on the Appellants in Second Appeal Nos. 19, 534 and 626 of 1973, who claimed to have acquired title to the suit properties even by prescription.

The trial Court found that the suit properties are wakf properties belonging to Agori pallivasal, that the alienations in favour of the Appellants in Second Appeal Nos. 19, 534 and 626 of 1973 were void, that the possession of the predecessors-in-title of these Appellants was as muthavallis, that the Appellants in these three appeals have not acquired title to the properties by adverse possession and that the suits were in time, having regard to Section 3 of the Public Wakfs (Extension of Limitation) Act, 1959. On these findings the trial court decreed all the three suits as prayed for with costs.

On appeal, the learned Subordinate Judge of Sivaganga allowed Appeal Suit Nos. 181 and 183 of 1971 and dismissed Original Suit Nos. 513 and 519 of 1970 on the ground that the notification under exhibit A-2 was not binding on the Defendants in those suits, as they had no notice of the enquiry by the Assistant Commissioner of Wakfs u/s 4 of the Muslim Wakfs Act, 1954 and they were not parties to the same, although he agreed with the learned District Munsif regarding the pallivasal''s title to the properties involved in those suits. He dismissed Appeal Suit No. 182 of 1971 on the ground that the Defendant in Original Suit No. 514 of 1970 had notice of the enquiry by the Assistant Commissioner of Wakfs, that the notification under exhibit A-2 was therefore valid and binding on him and that Agori Pallivasal had title to the properties involved in that suit as has been found by the learned District Munsif. Second Appeal Nos. 626, 19 and 534 of 1973 are against the findings of the learned Subordinate Judge in Appeal Suit Nos. 181 to 183 of 1971 respectively on the pallivasal''s title to the properties and also on the binding nature of the notification exhibit A-2 and Second Appeal Nos. 1661 and 1662 of 1973 are against the findings in Appeal Suit Nos. 181 and 183 of 1971 about the validity and binding nature of the notification under exhibit A-2 which has been found against the Board by the learned Subordinate Judge.

Section 5of the (Muslim Wakfs Act, 1954) provides for the publication of list of wakfs by the Board after examination of the report forwarded to it by the State Government. Section 6(1) of the said Act provides for a suit being field in a civil court of competent jurisdiction within one year from the date of the publication of the list of wakfs on the question whether a particular property specified as wakf property in a list of wakfs published under Sub-section (2) of Section (5) is wakf property or not or whether a wakf specified in such list is a Shia Wakf or Sunni Wakf by any person interested therein. u/s 3(h) of the said Act, person interested in a wakf means any person who is entitled to receive any pecuniary or other benefits from the wakf and includes:

(i) any person who has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, khangah, Maqbara, graveyard or any other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf:

(ii) the wakf and any Defendant of the wakf and the mutawalli.

Therefore, an alienee of any wakf property will fall within this definition, having regard to the provisions of Section 6(1) of the Wakfs Act. The learned Counsel for the Board has not been able to point out how the finding of the learned Subordinate Judge that the Defendants in Original Suit Nos. 513 and 519 of 1970 are not bound by the notification having regard to the fact that they had no notice and that they were not parties to the enquiry by the Assistant Commissioner u/s 4 of the Wakfs Act is not correct. Therefore, I agree with the learned Subordinate Judge and hold that they were not parties and that they had no notice and are not bound by the notification under exhibit A-2 and that the Defendant in Original Suit No. 514 of 1970 alone had notice and is bound by the notification exhibit A-2 holding that the property involved in that suit is a wakf property.

Even apart from the notification, there is no difficulty in holding that the suit properties are properties which belonged to Agori Pallivasal. The inam fair register extracts (certified copies) exhibits A-3 to A-5 and the inam B register extract (certified copy) exhibit A-13, show that the suit properties belonged to Agori Pallivasal. The order exhibit A-14 dated 1st October 1967 of the Settlement Tahsildar shows that the patta for the lands involved in Original Suit Nos. 513 and 514 of 1970 was ordered to be granted to Agori Pallivasal. The order exhibit A-15 dated 1st May 1967 of the Settlement Tahsildar also shows that patta for the lands involved in Original Suit No. 519 of 1970 was ordered to be granted to Agori Pallivasal. These orders have been passed under the provisions of the Tamil Nadu Act XXX of 1963. The order exhibit A-15, dated 1st May 1967 of the Settlement Tahsildar was finally confirmed by this Court in section T.A. No. 40 of 1973 on 20th August 1975. No Appeal had been filed against the order directing the grant of patta to Agori Pallivasal for the lands involved in Original Suit No. 519 of 1970. Exhibits A-3 to A-5 and exhibits A-13 to A-15 establish that the suit properties belonged originally to Agori Pallivasal. Therefore I agree with the Courts below that the Pallivasal has title to the suit properties. The fact that the notification, exhibit A-2, is not binding on the Defendants in Original Suit Nos. 513 and 519 of 1970 does not affect the Pallivasal''s title to the properties.

The learned Counsel for the Board submits that the suits are governed by Article 96 of the Limitation Act, 1963, and that they are in time having regard to the fact that the State Wakf Board had been constituted on 1st February 1958. He submits that the State Wakf Board would be the Manager of the endowment coming within the meaning of column (3) of Article 96, which states that the period of twelve years would start from the date of death, resignation or removal of the transferor or the date of appointment of the Plaintiff as manager of the endowment, whichever is later in respect of a suit by the Manager of a Hindu, Muslim or Buddhist religious or charitable endowment to recover possession of movable or immovable property comprised in the endowment which has been transferred by a previous manager for a valuable consideration.

In this connection he placed reliance upon the decision of L. Machi Reddy Vs. The Wakf Board of Andhra Pradesh, where the learned Judge has observed:

What must necessarily follow therefore is that the Wakf Board having supervisory powers and having special duties to perform is not only entitled to file the suit for recovery of the property lost to the Wakf but also can manage and administer the property or see that the properties are properly managed and administered and its income applied to the objects and for the purposes for which the wakfs were created or intended. Keeping in view these statutory functions and the powers of supervision of the Wakf Board over the wakfs. I do not experience any difficulty in holding that the Wakf Board is a manager within the meaning of Article 96 of the Limitation Act.

He also placed reliance upon the decisions of Natarajan J. in Second Appeal No. 400 of 1972 (Sornammal and Ors. v. The Tamil Nadu State Wakf Board judgment, dated 11th July 1975) and in Second Appeal No. 456 of 1972 (Thangiah Velar and Anr. v. The Tamil Nadu State Wakf Board and another judgment, dated 9th July 1975) where the learned Judge has followed the decision of Venkatarama Sastry J., of the Andhra Pradesh High Court in C.J. Mutt Tirupathi v. C.V. Purushotham AIR 1974 A.P. 75 where there was specific appointment as Madathipathi on 16th May 1960. Venkatarama Sastry J. has observed in his judgment that the transferor manager need not be the immediate predecessor of the Plaintiff, that such a conclusion cannot be reached from a reading of Article 96 and that the first column of that Article does not say that the alienation should be by the previous manager. With respect, I am unable to share the view of the learned Judge, for if that is the correct position, the alienation could be questioned at any time without reference to any limitation whereas the Legislature has fixed the period of limitation as twelve years in Article 96 itself.

No doubt, Section 15(2)(h) of the Wakf Act provides for the State Wakf Board taking measures for recovery of the lost properties of any wakf, and in the present case, the suit properties, have been found to belong to Agori Pallivasal. But with respect I am unable to agree with the views of Gopal Rao Ekbote J. and Natarajan J. in those decisions. Article 96 of the Limitation Act, 1963, refers to the date of death, resignation or removal of the transferor or the date of appointment of the Plaintiff as Manager of the endowment, whichever is later. Section 43-A of the Wakf Act provides for assumption of direct management of certain wakf by the Board, where no suitable person is available for appointment as a mutavalli of a wakf u/s 42 or under Sub-section (2) of Section 43, by a notification in the official gazette for such period or periods, not exceeding in the aggregate five years, as may be specified in the notification. It will be clear that the Act makes a distinction between the powers of the Wakf Board for supervising the functions of the manager of Wakfs and the application of the properties and funds of the wakfs for legitimate purposes on the one hand and the direct management of wakfs on the other. There is no evidence to show that the State Wakf Board itself had assumed direct management of the Agori Pallivasal u/s 43-A of the Wakfs Act, before it filed the present suits. It is therefore, not possible to hold that the State Wakf Board has been appointed as the Manager of the endowment in these cases and that Article 96 of the Limitation Act, 1963, applies.

Section 3 of the Public Wakfs (Extension of Limitation) Act, 1959, provides thus:

Where a person entitled to institute a suit of the description referred to in Article 142 or Article 144 of the First Schedule to the Indian Limitation Act, 1908, for possession of any immovable property forming part of a public wakf or any interest therein has been dispossessed, or has discontinued the possession at any time after the 14th day of August 1947 and before the 7th day of May 1954, or, as the may be, in the possession of the Defendant such a suit has become adverse to such person at any time during the said period then, notwithstanding anything contained in the said Act, the period of Limitation in respect of such a suit shall extend up to 31st December 1975.

The suits would have been in time if the dispossession of the suit properties which belong to the Wakf had taken place at any time after 14th August 1947 and before 7th May 1954 or if the date on which the period required for the acquisition of title by adverse possession had ended within this period, namely, between 14th August 1947 and 7th May 1954. Therefore, it is necessary to consider whether the cases fall u/s 3 of the Public Wakf (Extension of Limitation) Act, 1959.

P.W. 1 has stated that the Pallivasal did not enjoy the suit properties and that he cannot say for how long it did not enjoy. P.W. 2 has admitted that the Defendants are in possession for 20 years and that Defendants 1 and 2 in Original Suit No. 519 of 1970 are in possession after the third Defendant in that suit. The alimentation of 70 cents out of 1 acre 11 cents involved in Original Suit No. 513 of 1970 took place on 13th April 1943 under exhibit B-3, and the usufructuary mortgagee became the owner of that property by virtue of the subsequent sale under exhibit B-1, dated 13th March 1952. The alienation in respect of this 70 cents was made prior to 14th August 1947, namely, on 13th April 1943, and the acquisition of title by adverse possession, twelve years therefore, was after 7th May 1954. Therefore it is clear that Original Suit No. 513 of 1970 is not in time so far as the western 70 cents out of 1 acre 11 cents in Serial No. 204/1 is concerned. The alienation of the remaining 41 cents had been male only on 15th March 1953 which falls within the period mentioned in Section 3 of the Public Wakfs (Extension of Limitation) Act, 1959. D.W. 2 has admitted in his evidence that the alienations involved in Original Suit Nos. 513 and 514 of 1970 were made by his relations, who were the heirs of Annavasal Levvai and Kader Bacha Levvai, who are mentioned as Muthavallis in the Inam Fair Register Extract, exhibit A-3, although he has stated that he does not know about the management of the affairs of the Pallivasal by these persons.

The sale of the properties involved in Original Suit No. 514 of 1070 has no doubt been made in 1953, 1954 and 1957 under exhibits B-9 to B-12, dated 9th December 1953, 17th December 1953, 7th October 1954 and 23rd December 1957 respectively and all the suits have been filed on 14th August 1967. But the usufructuary mortgage deeds, exhibits B-15 to B-26, show that the alienations of these properties by way of usufructuary mortgages had been made between the years 1894 and 1920, though, as already stated, no reference to Agori Pallivasal being the owner, of the property had been made in these usufructuary mortgage deeds. Similarly, the alienation of the property involved in Original Suit No. 519 of 1970 by way of usufructuary mortgage has been made under exhibit B-27 dated 13th September 1944 and the second Defendant in that suit is only as assignee of the usufructuary mortgage under Exhibit B-28 dated 9th August 1948. The date of alienation under exhibit B-27 falls outside the period mentioned in Section 3 of the Public Wakfs (Extension of Limitation) Act, 1959, and the period of 12 years therefrom had not expired within the period mentioned in that section. Therefore, I held that Original Suit Nos. 514 and 519 of 1970 are barred by limitation.

The result is that the State Wakf Board succeeds only in respect of the eastern 41 cents out of 1 acre 11 cents comprised in Survey No. 204/1, the entirety of which is the subject-matter of Original Suit No. 513 of 1970. Therefore, Second Appeal No. 1661 of 1973 is allowed only to the extent of the eastern 41 cents in Survey No. 204/1. Second Appeal No. 626 of 1973 is dismissed as regards the eastern 41 cents and is allowed only in respect of the western 70 cents in Survey No. 204/1. Second Appeal No. 1662 of 1973 is dismissed and Second Appeal Nos. 19 and 534 of 1973 are allowed. The parties will bear their respective costs in these Second Appeals.

Leave granted.