Madras State Wakf Board vs Syed Abdul Kadar and Others

Ramanujam, J.—The second Defendant in Original Suit No. 10 of 1965, on the file of the Sub-Court, Nagercoil is the Appellant. The suit has been filed by the first Respondent herein for a declaration that the suit properties constituted a family trust known as Kammath Meetheen Syed Trust, for settling a scheme for the future administration of the above trust, and for appointing the Plaintiff as its hereditary trustee. The Plaintiff''s case is that the suit properties originally belonged to his paternal ancestor, deceased Kammath Meetheen Syed and that by a registered Will, dated 2nd September 1085 (M.E.)(14th April 1910) he endowed the same for the following religious rites and charities to be performed in the residential building in the plaint item 1 from the income therefrom.

(1) For the reading of Quoran and offering ot prayers to be followed by feeding of the people, who gather for the prayers for thirty days in the month when Mohammed the Prophet was born and went to heaven and death anniversary of Mohammed the prophet every year.

(2) Similarly performances for thirty days Rahiyal Anar every year in memory of Mohideen Andavar whose mortal remains are enshrined in Baghdad.

(3) Similar rites for thirty days in every year in commemoration of the life of Shahulameed Andavar.

(4) Similar rites every year associated with Uthuma, Lebba Sahib whose tomb is in Thittuvilai Mosque.

(5) Similar functions for fifteen days each and every year for Munna Lebba Sahib and Masib and

(6) Ramzan, Zakath rites, feeding of poor and other customary rites in connection with Ramzan every year.

(7) Celebration of the death anniversary of the founder and other members of the family.

The founder died leaving behind him his two sons, Syed Ibrahim Sahib and Syed Ahamedali. The Plaintiff and Defendants 4 to 11 are the grand children of Syed Ibrahim Sahib and Defendants 12 and 13 are his daughters. The Plaintiff and the fourth Defendant are brothers, being sons of Uthuman Lebba Sahib who is the grandson of the founder through Syed Ibrahim Sahib. Defendants 5 to 10 are his daughters. The relationship of the parties will be clear from the following genealogy.

After the death of the founder, his eldest son Syed Ibrahim was attending to the affairs of the trust. After his death in 1932 his brother Syed Ahmadali was attending to the same till he died on 22nd August 1960. Even during the lifetime of Syed Ibrahim Sahib and Syed Ahmadali the properties were being enjoyed by the descendants of the founder individually in pursuance of a family arrangement, each of them contributing his share for the performance of the religious rites and charities referred to above. But after the death of Syed Ahamadali on 22nd August 1960, his descendants refused to contribute their share for the performance of the said religious rites and charities. Defendants 15 to 22 are alienees in possession of some of the suit properties and the 23rd Defendant is the Wakf Board. On these averments the Plaintiff sought the reliefs aforesaid.

Defendants 1 to 14 who are the descendants of the founder contended that the trust created by the Will is only sham and nominal with a view to prevent alienation of the properties by the testator''s descendants, that there was in fact, no dedication to any charity, that the charities recited are ordinary religious observances which every Muslim observes, that the trust was not acted upon by mutation of registry and by appointment of Muthavalli, that after the death of the testator the properties devolved on his two sons, that they treated the properties as their own and aid not perform any charity, that the property was being treated always as their own properties by all the heirs including the Plaintiff that the Plaintiff is estopped by conduct in dealing with the portion of the property as his own and that in any event, the suit is barred by limitation. They also contended that the consent from the Advocate-General for the institution of the suit not having been obtained u/s 92 of the CPC the suit was not maintainable. Defendants 15 to 22 alienees of some of the suit items, also denied the existence of the trust.

The 23rd Defendant, the Appellant herein, contended that under the Will of the founder there is a clear dedication of the suit properties for the specific objects mentioned therein, that the descendants of the founder have no rights over the dedicated properties, that the allotment of the properties to individual members is invalid and incompetent, that the trust is a public wakf and that a scheme has to be settled for the due performance of the rites and charities and for the proper management of the wakf properties.

The Court below held that the recitals in the Will did not amount to the creation of a religious and charitable endowment, that the recitals were intended only as a device to prevent alienation of the properties that even if the trust had been validly created it became extinguished by the subsequent conduct of the descendants of the founder in not performing the religious or charitable objects, that the Plaintiff having dealt with some of the suit properties as his, is estopped by his conduct from maintaining the suit and contending that the suit properties constituted a wakf. In that view the trial Court held that the suit properties do not constitute a wakf and, therefore, there is no necessity to frame any scheme. The 23rd Defendant, the Wakf Board now questions the correctness of the decision of the Court below.

Exhibit A-1 is the Will, dated 14th April 1910 executed by Kammath Mytheen. The Will admittedly sets apart the suit properties for the performance of certain religious rites and charities in item 1 and the rest of his properties have been bequeathed to his two sons, Syed Ibrahim and Syed Ahemadali and others. It also provides that the two sons shall hold and enjoy the properties set apart for the performance of religious rites and charities without any power to encumber the same and conduct the said rites and charities without fail. Under the Will it appears there is a clear dedication of the suit properties for certain religious and charitable purposes, the sons having been constituted as the trustees to manage the same without any power of alienation and to conduct the religious rites and charities. The Court below, however, is of the view that as there has been no dedication of the suit properties to any Mosque and the founder himself has not constituted himself as the muthavalli nor has he appointed any other person as the muthavalli and the rites and charities were not performed at any time as per the terms of the Will, there could not have been a valid creation of a wakf. He was also of the view that die rites and charities were not intended to be performed, that it is only an attempt to shield the property from the would be creditors of the sons of the founder, that there is no provision as to how actually the amounts were to be spent for the said charities, that there was no direction as to what was to be done from the remainder of the income of the properties, that there is no direction to effect mutation, that there was no notification or declaration by the Wakf Board with regard to the suit properties and that, therefore, the suit properties cannot be treated as wakf properties.

But on a due consideration of the recitals in Exhibit A-1 as well as the evidence, both oral and documentary, we are of the view that there is creation of a valid wakf under the Will Exhibit A-1 and that the entire reasoning of the Court below is quite incorrect and fallacious. The terms of the Will, as already stated, are clear and properties have been specifically set apart for the performance of religious rites and charities and the founder constitutes his two sons as persons to be in management of the properties and to perform the religious rites and charities. Once Exhibit A-1, creates a valid wakf, the subsequent conduct of the sons of the founder will not detract from the properties being wakf properties. If the sons, have not performed the religious rites and charities as directed in the Will, it will amount only to a breach of trust. The nonperformance of the trust by the sons of the founder will not, therefore, affect the validity of the wakf created by the founder. Similarly, the non-appointment of a muthavalli under the Will will not validate the wakf created thereby. The subsequent dealing of the properties by the sons of the founder and their descendants cannot throw light on the question as to whether a valid trust has been created under the terms of the Will. In Jonabali Sardar and Others Vs. Sm. Saleha Khatun and Others, it has been held:

If the intention to make the wakf can be gathered from the declaration taken as a whole and the surrounding circumstances, the mere fact that the wakf does not subsequently act according to the terms of the wakf would not invalidate the waqf. Where the intention is clear from the surrounding circumstances, it is unnecessary to look into the subsequent conduct to find out the intention. If, however, the intention of the person executing the document is not clear and the declaration and the surrounding circumstances are equivocal, subsequent acts and conduct, if they throw any light on the real intention, may be looked into.

In Mt. Alimunnisa Bibi Vs. Mohammad Abdur Rahman and Others, it has been held that if the deed of wakf was validly created, then the mere fact that subsequently members of the family of the executant were negligent in getting mutation made is a matter which has no bearing on the question of the validity of the waqf. In Zamir Ahmad Vs. Mt. Quamar-un-nisa and Others, the Court expressed that the fact that no application for mutation is made by the executant soon after the execution of the waqf-deed is not a matter of any importance regarding the validity of the waqf, that where the executant himself is the first mutawalli, it is unnecessary to apply for mutation, that these circumstances cannot invalidate a wakf and that the validity of the wakf cannot be affected by a subsequent arrangement by the heirs of the wakf by which the wakf''s estate including the wakf property is parcelled out amongst them. In Anjuman Islamia through Zahur Uddin Vs. Latafat Ali and Others, the Court held that once it is found that the wakf is valid, it is wholly immaterial whether its provisions are carried out or not, for that is a matter of breach of trust only and that the question whether it is acted upon or not would be irrelevant so far as the question of its validity is concerned. In this case the evidence of D.W. 3 is to the effect that actually religious rites were in fact performed in the plaint item 1 and he himself has done the Pathia on many occasions and that he has taken part in such functions for quite a long time. Even otherwise, the non-performance of the religious rites and charities by the founder''s descendants will not invalidate or put an end to the wakf once created. We also find that there is absolutely no evidence in the case to lead to the inference that the wakf was created only for the purpose of securing the properties from the reach of the creditors. As a matter of fact it has not been shown that there were any creditors at the time of the execution of the Will. Therefore, the defence that the properties were set apart for the alleged performance of certain religious rites and charities only with a view to screen the properties from the reach of creditors has no basis at all. The Court below is in error in holding that the creation of the trust is either illusory or is sham and nominal. We are of the view that none of the reasons given by the Court below to hold that there is no valid wakf created under Exhibit A-1 can be accepted. In our view, there is a valid creation of a wakf under the Will Exhibit A-1 by the founder. The lower Court has referred to the fact that there has been no declaration by the Wakf Board declaring the suit properties as wakf properties. But the mere inaction of the Wakf Board which may be due to many causes will not put an end to a wakf validly created by the founder, nor will it estop the Wakf Board seeking a declaration at any time that the properties are wakf properties.

The learned Counsel appearing for Defendants 1, 3 and 16 would, however, contend before us that the Plaintiff is not entitled to maintain the suit without obtaining the sanction of the Advocate-General u/s 92 of the Code of Civil Procedure. This objection cannot be sustained in view of the fact that Section 55 of the Muslim Wakf Act of 1954, states that a suit to obtain any of the reliefs mentioned in Section 92 of the Code of Civil Procedure, 1908 relating to any wakf may, notwithstanding anything to the contrary contained in that section, be instituted by the Board without obtaining the consent referred to therein. Sub-section (2) of that section enables any person to file a suit for the reliefs referred to in Section 92 of the CPC with the consent of the Wakf Board. In this case though the Wakf Board has not filed the suit it has given its consent to the Plaintiff for filing the suit as is clear from Exhibit A-5. It cannot, therefore, be said that the suit is barred by the provisions of Section 92 of the Code of Civil Procedure.

On the question as to whether the Plaintiff is estopped from contending that the suit properties are wakf properties as he himself has earlier treated some of the properties as his own, we are satisfied that the Plaintiff can maintain the suit for a declaration that the properties are wakf properties and for the framink of a scheme eventhough he had earlier treated some of the suit properties as his own. The mere fact that the Plaintiff and the other descendants of the founder have acted adversely to the trust cannot estop any individual from filing a suit of this nature. The lower Court, in our view, is in error in holding that the Plaintiff is estopped from maintaining the suit raising the contention that the suit properties are wakf properties.

The only further question that remains to be considered is the question as to whether the suit is barred by adverse possession by the Defendants. The Court below has held that the suit is also barred by limitation as the Defendants had perfected title to the suit properties by adverse possession. In this appeal only Defendants 1, 3, 12 to 18, 20 and 22 are appearing by Counsel and the rest of the Defendants remained ex parte. Defendants 12 and 13 claim plaint items 6 and 7 as having been allotted to them in a family arrangement under Exhibit B-2 of the year 1947. The 14th Defendant claims plaint item 8 under a stridhana deed executed by Syed Ahamedali in the year 1932. Seventeenth Defendant claims plaint item 13 on the basis of a purchase from Syed Ahamedaii under Exhibit B-10 of the year 1937. Eighteenth Defendant puts forward a claim to suit item 11 under a purchase deed Exhibit B-80 from Michael Nadar and others who in turn had purchased the same from Ahamedali. The 20th Defendant claims item 10 on the ground that he is the ultimate purchaser of that item from a purchaser from Ahamedali in the year 1923 under Exhibit B-79. The 22nd Defendant claims item 9 on the ground that his father had purchased that item from the Plaintiff�s father under Exhibit B-74. It is the contention of the learned Counsel for these Defendants that they having been in possession of the properties adversely to the trust for well over 12 years they must be held to have acquired title to the same by adverse possession. According to the learned Counsel, Article 65 of the Limitation Act of 1963 applied to the facts of this case. It may be that the said Defendants are in possession of the property for well over 12 years, but mere possession for whatever length of time cannot enable the Defendants to acquire title by adverse possession unless such possession is shown to be adverse to the true owner. The question is when their possession became adverse. In this case the eldest son of the founder Syed Ibrahim was in management till his death in 1932. Thereafter Syed Ahamedali was administering the properties till 1960. The suit was filed in the year 1965.

The learned Counsel for the said Defendants relies on the decision of the Judicial Committee in Vidya Varuthi v. Balusami Ayyar ILR 44 Mad. 831 (P.C.) in support of his submission that Article 65 has to be applied to the facts of this case. In that case their Lordships held that neither Article 134 of the Limitation Act of 1908 applied to a case where the head of a Mutt has granted a permanent lease over a part of the Mutt property. Article 134 was held not to apply as the property was not proved to be subject to a specific trust. Article 144 was held not to apply as the Head of the Mutt cannot create any interest in the Mutt property to ensure beyond his lifetime and the lessee cannot set up adverse possession during the lifetime of the head who granted the lease. It was also held that even if the lessee''s possession is consented to by the succeeding head that consent could be referable only to a new tenancy created by him and there could be no adverse possession until his death. That decision, therefore, does not support the case of the Defendants. It further supports the case of the Appellant.

The learned Counsel for the Appellant would say that the decision of the Supreme Court in Srinivasa Reddiar v. Ramaswamy Reddiar (1967) 1 M.L.J. 141 (S.C.) is conclusive on the point as to limitation and that in all cases where properties endowed for a trust are transferred by a previous manager, a suit to recover possession by the succeeding manager will be governed by Article 134-B of the Limitation Act of 1908. The learned Counsel for the Respondents would, however, state that the above decision dealt with the applicability of Article 134-B of the Limitation Act of 1908, that the case on hand is, however, governed by the provisions of the Travancore Regulation VI of 1100, which was in force till 1st April 1951, when by the provisions of the Part B States (Laws) Act, the Indian Limitation Act was extended to that area and that the said Travancore Regulation did not contain a provision like Section 134-B. It is true me case before us is governed by the provisions of the Travancore Limitation Act and that if some of the Respondents had acquired title by adverse possession before 1951, such title cannot be questioned. The learned Counsel for the Respondents concedes that even on that basis Defendants 12 and 13 cannot get any benefit for they got possession of items 6 and 7 only in the year 1947 by virtue of Exhibits B-2 and B-3 and, therefore, they cannot be said to have perfected title by adverse possession before 1951. The question is whether the other Respondents who came to possess the other items as a result of the alienations made by the sons of the founder can be said to have acquired title by adverse possession for a period of 12 years before 1951.

As pointed out by The Lordships of the Judicial Committee in AIR 1940 116 (Privy Council) the Limitation Act applied to wakf property as it applied to any other property and it can also be adversely possessed. Limitation Act provides a rule of procedure whereby Courts do not enforce certain rights after a certain time with the result such rights come to an end. It is, therefore, impossible to read into the Limitation Act any exception to wakf properties.

It is contended by the Respondents that the properties having been alienated by the sons of the founder contrary to the terms of his Will, the alienations are void ab initio, that, therefore, adverse possession of an alience dates from the date of the transfer and that on that basis possession of Defendants 17, 18, 20 and 22, if taken to be adverse from the date of the transfers, would deprive the Plaintiff the right to recover the property in view of article 122 of the Travancore Regulation. But we are, however, of the view that the proper article to be applied is article 132 of the said Travancore Regulation which is as follows: --

Description of suit.

Period of limitation

Time from which period begins to run.

for possession of immovable property or any interest therein not hereby otherwise specifically provided for.

Twelve years.

When possession of the defendant become adverse to the plaintiff.

The above article corresponds to Section 144 of the Indian Limitation Act of 1908. In Vidya Varuthi v. Balusami Ayyar ILR 44 Mad. 831 (P.C.) the Judicial Committee held that if there is an alienation of the trust property apart from the office of the trusteeship then such an alienation is only voidable and would enure during the lifetime of the alienor and a suit brought within 12 years of the date of the death of the alienor would, therefore, be in time and that except for unavoidable necessity a trustee cannot create any interest in the property to ensure beyond his lifetime and, therefore, the starting point of limitation would be the date of the death of the transferor or his removal from office. The Judicial Committee in Mahanth Ram Charan Das v. Naurangi Lal ILR 12 Pat. 251 (P.C.) pointed out the distinction between a total alienation of a religious endowment including the office of the trusteeship and its properties and an alienation of a part of the trust property and held that although an alienation of a math and its properties by the mahant is void, an alienation by him of an item of the math property even if not for necessity would be valid during the tenure of the office of the mahant and consequently the possession of the alienee will not become adverse so as to cause time to run under Article 144 of the Limitation Act until the alienating mahant ceases to be a mahant either by death or otherwise. Again in Ponnambala Desikar v. Periyanan Chettiar ILR 59 Mad. 809 (P.C.) the Judicial Committee held that where there is a transfer of an item of trust property it is valid during the lifetime of the trustee and the starting point of limitation begins on the death of the trustee. In S.K. Venkatasubramania Ayyar and Others Vs. S. Sivagurunatha Chettiar and Others, a Bench of this Court expressed the view that if the original transfer was void ab initio then the alienee would have been in adverse possession since the date of transfer, but if the transfer was voidable or valid and effective up to a time, adverse possession would commence from the moment the alienee is without lawful title, that is, in the case of a voidable transfer from the date of the avoidance and in the case of a transfer effective for a period from the date of termination of the period. In Lakshmana v. Vaidyanatha ILR (1956) Mad. 1144 another Division Bench of this Court expressed the view that even before the insertion of Article 134-B in the Limitation Act of 1908 in 199, Article 144 applied to suits by a trustee for recovery of possession of trust property alienated by the former trustee if the alienation is not ab initio void. In that decision it has been held that an alienation of trust property will be void ab initio only when the office of the trustee is transferred along with the trust properties. In L. Machi Reddy Vs. The Wakf Board of Andhra Pradesh, dealing with Article 65 of the Limitation Act of 1963, corresponding to Article 144 of the 1908 Limitation Act, the Court held that the alienee''s possession cannot be said to be adverse to a religious institution during the tenure of office of the alienating trustee. Dealing with the question of adverse possession the Court said:

The argument relating to adverse possession and perfection of title by the Defendants holds no water. It is now plainly settled that the possession of the alienee becomes adverse to the religious institution only from the date of the termination of the tenure of office of the alienating manager. This view was based on the ground that the alienation of property belonging to a Hindu, Muslim, etc. endowment by the manager was good (when it was not set aside in proper proceedings taken for the purpose) so long as the alienating manager held office, and the possession of the alienee became unlawful only on the cessation of the transferring manager''s term of office. This view has been expressed in several Privy Council decisions and has been adopted in more than one case even by the Madras High Court. What is, therefore, plain is that during the lifetime of the Muthwalli who transferred the property the transferee''s adverse possession cannot be said to have been commenced.

In view of the decisions referred to above, the limitation for filing a suit for recovery of possession by the succeeding trustee would begin to run only from the termination of the tenure of office of the alienating trustee or his death as the case may be and not from the date of the alienation as contended by the Respondents and the alienation by the sons of the founder who were the then trustees of the wakf was good during their lifetime and it was only after their lifetime the possession of the alienees became unlawful.

Article 122 of the Travancore Regulation which is relied on by the learned Counsel for the Respondents cannot be applied to this suit in view of the decision of the Privy Council in Vidya Varuthi v. Balusami Ayyar ILR 44 Mad. 831 wherein, it was held that the corresponding provision in Article 134 of the Limitation Act of 1908, did not apply to cases where the properties sought to be recovered are properties comprised in a Hindu, etc. religious or charitable endowment except where the property was transferred to a specific person to be held in trust by him for the benefit of certain religious or charitable institution so as to constitute such person an express trustee and that Article 144 applied to such suits. In this case Ahamadali the younger son of the founder who was the last surviving trustee named in the Will died in the year 1960 and adverse possession will commence only from that year. The suit has been filed in the year 1965. There is, therefore, no question of any of the Defendants perfecting title to the suit properties by adverse possession. The appeal has, therefore, to be allowed and it is accordingly allowed, the decree and judgment of the Court below are set aside and the suit properties are declared to be the properties of the public wakf. The Wakf Board may take such steps as are necessary for framing a suitable scheme for the suit wakf. The Appellant is entitled to its costs from Defendants 1, 3, 12, 13, 14, 16, 17, 18, 20 and 22 in proportion to the value of the wakf properties in their hands.