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Judgment
A.C. Arumugaperumal Adityan, J.—The Judgment in O.S. No. 67 of 2005 on the file of the Principal Subordinate Judge, Cuddalore, is
under challenge in this revision. This revision has been preferred by the 1st defendant � Wakf Board.
The respondents 1 & 2 / plaintiff in O.S. No. 67 of 2005 have filed the suit for a declaration that the suit property exclusively belonged to the
first plaintiff. According to the 1st plaintiff, his father had executed a deed of Wakf dated 10.12.1936 for the purpose of constructing a Madarassa.
According to him, the Madarassa was not constructed during his father''s life time and the dedication has been completely failed and the object of
the deed of Wakf dated 10.12.1936 executed under Ex. A.1 was not materialized. So the 1st plaintiff would claim that the property does not vest
with the Wakf. It is further been admitted that the first plaintiff''s father had also executed Ex. A.2, another deed of Wakf, dated 1.4.1941
dedicating all other properties except the property covered under Ex. A.1 for the purpose of creating another Wakf. The fact remains that the
property already dedicated by the first plaintiff''s father under Ex. A.1 � deed of Wakf dated 10.12.1936, was excluded in Ex. A.2 deed of
Wakf. According to the 1st plaintiff, in the revenue records the plaint schedule property is described as the personal property of the first plaintiff
and that the first defendant � Wakf Board has failed to notify this property in the Government Gazette as the Wakf property and that the suit
property does not find a place in the register maintained for the Wakf property with the first defendant � Wakf Board (Revision Petitioner
herein). Hence, according to the first plaintiff, he had entered into an agreement with the second plaintiff on 27.10.2001 in respect of the property
covered under Ex. A.1 dated 10.12.1936 for sale. Now, with the help of the second defendant, the first defendant is restraining the first plaintiff
from executing a sale deed in respect of the plaint schedule property in favour of the second plaintiff. Hence, the suit for declaration that the suit
property is exclusively belonged to the first plaintiff and also for consequential permanent injunction restraining the first defendant (Wakf Board)
from any manner interfering with the first plaintiff from dealing with the property.
The first defendant has resisted the suit as the same is not maintainable and that the first defendant has not abandoned the idea of constructing
the Madarassa as directed in Ex. a.1 deed of wakf. Once the property is endowed in favour of Wakf it will assume the character of Wakf
property and that after the dedication, the plaintiffs cannot interfere in the same and that the Muthawalli cannot claim any independent right in
respect of the Wakf Property and he is estopped from claiming as such and the plaintiff has no semblance of right or interest in the property. Once
the property has become Wakf property it cannot be characterized as personal property of the first plaintiff. Once the property has been dedicated
as the Wakf Property, thereafter the first plaintiff cannot claim right in respect of the said property on the basis of the entries made in the revenue
records as personal property. The exparte decree passed in O.S. No. 42 of 2001 has been set aside and on finding that the plaintiffs cannot
proceed with O.S. No. 42 of 2001, has filed this suit after not pressing the order suit. The plaintiffs are estopped from re-agitating the same once
again. The suit is barred by resjudicata.
The learned trial Judge had framed six issues. The first plaintiff has examined himself as P.W. 1 and also examined one Malimar as P.W. 2. On
the side of the defendants, D.W. 1 to D.W. 3 were examined. Ex. A.1 to Ex. A.17 were marked on the side of the plaintiffs and Ex. B.1 to Ex.
B.9 were examined on the side of the defendants. After going through the oral and documentary evidence, the learned trial Judge has decreed the
suit. Aggrieved by the findings of the learned Trial Judge, the first defendant � Wakf Board has preferred this revision.
5.Heard Mr. Hassan Mohammed Jinnah, the learned Counsel appearing for the revisions petitioner and Mrs.Hema Sampath, the learned Senior
Counsel appearing for R1 & R2 and Mrs.R.Revathi, the learned Government Advocate appearing for R3 and considered their respective
submissions.
According to the learned senior counsel appearing for the respondents 1 & 2, as per Section 5 of the Wakf Act, there was no publication made
in respect of the property dedicated under Ex. A.1, deed of Wakf executed by the first plaintiff''s father dated 10.12.1936 and hence, she would
contend that the property dedicated under Ex. A.1 will not take effect and it will revert back to the person, who had dedicated the same in favour
of the Wakf and since his father is not now alive, as the son, the first plaintiff is entitled to claim right in respect of the property dedicated under Ex.
A.1 and that the first plaintiff can deal with the property dedicated under Ex. A.1, as his personal property. The learned Senior Counsel would also
state that the revenue records also stand in the name of the first plaintiff under Ex. A.7 to Ex. A.17 in respect of the suit property.
Section 5 of the Wakf Act reads as follows:
Publication of list of wakfs:
(1) On receipt of a report under Sub-section (3) of Section 4, the State Government shall forward a copy of the same to the Board.
(2) The Board shall examine the report forwarded to it under Sub-section (1) and publish in the official Gasette a list of wakfs or Shia wakfs in the
State, whether in existence at the commencement of this Act or coming into existence thereafter, to which the report relates and containing such
other particulars as may be prescribd.
If there is any dispute arose between the person who dedicated the property to the Wakf and the Wakf Board then as per Section 6 of the Wakf
Act within one year from the date of publication of the list by the Wakf Board, the aggrieved party can agitate the same by way of a suit. But
nowhere in the Act, any specific time is prescribed for publication of the property so dedicated in favour of the Wakf.
The learned Senior Counsel relying on Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan and Others, , would contend that the first plaintiff
is having cause of action to file the suit since the Tamil Nadu Wakf Board has not published the list including the suit property as contemplated u/s
5 of the Wakf Act. The short facts of the said case runs as follows:
The subject-matter in disptue is a two-storeyed building, known as Dharamshala or Musafirkhana, situate on Misra Ismail Road at Jaipur. The
building was constructed by the late Haji Mohammad Ali Khan, a Sessions Judge of the erstwhile Princely State of Jaipur. He had executed two
Wills one on 17th February, 1910 and the other on 1st July, 1911, dedicating his properties to the Wakf for its use as a Dharmashala and
appointed his one of the sons as its Mutawalli. After his death, there was a partition of his property by his sons. They filed a suit O.S. No. 128 of
1930 for partition and the above said property dedicated to the Wakf was left out in the said suit for partition being the Wakf property.
Subsequently, Muthawalli mortgaged the property with the father of R2 and father of R1 for a sum of Rs. 7,999/- and a mortgage deed dated July,
30, 1944 in their favour for the purpose of purchasing a strip of land in front of the building of the Municipal Council, Jaipur and thereafter
constructed verandahs on the ground floor and the first floor. The Wakf Act, 1954 was extended to the state of Rajasthan on February 1, 1955
and the Government had appointed a Commissioner of Wakfs for the purpose of making survey of the Wakf properties and it was brought to the
notice of the Commissioner that the property dedicated to the Wakf has been mortgaged by the mutawalli and a notice was given to the Mutawalli
by the Commissioner of Wakfs. It was contended that the Commissioner of Wakf had no jurisdiction to make an enquiry as to whether a particular
property is Wakf property or not. The Commissioner of Wakf by his order dated 19.9.1962 overruled the objection, which resulted in a writ
petition before the High Court, which also dismissed in limine observing that the Commissioner had obviously no jurisdiction to decide any question
relating to the title of the respondents or to eject them from the property without taking recourse to a civil suit.
The defence taken by the Mutawalli in the proceedings taken by the Commissioner of Wakf was that the Wills executed by their father was
cancelled in a suit. But the Commissioner of Wakf on the basis of evidence led before him, held that the disputed property to be wakf property.
Several provision of Wakf Act has been questioned before the Honourable Apex Court, which ultimately seized the matter in appeal. It has been
observed by the Honourable Apex Court in that judgment referring a Judgment in AIR 1939 Nag 205 as follows:
Considering the terms of the enactment and the scope and purpose of the Act it is clear that the legislature intended to secure merely a record of
the extent of income of wakf properties for the purpose of providing some control on the management of properties which are admittedly wakf. It
could not have intended to include in its scope the enquiry into the vital questions whether the disputed property is wakf property and the person in
possession of it is a mutawalli, which are questions of fundamental character such as could be the subject-matter of a suit alone.
...
The questions that fall for determination upon the appeal are two; first, whether a Commissioner of Wakfs appointed under Sub-section (1) of
Section 4 of the Wakf Act, 1995, has the jurisdiction under Sub-section (3) of Section 4 to enquire whether a certain property is wakf property or
not when such a dispute is raised by a stranger to the wakf an second, if so, whether the failure of such a person to institute a suit in a civil Court of
competent jurisdiction for decision of such question within a period of one year, as provided for under Sub-section (1) of Section 6, makes the
inclusion of such property in the list of wakfs published by the Board under Sub-section (2) of Section 5 of the Act final and conclusive under Sub-
section (4) of Section 6.
So, from the facts it is clear that in the above said case the property dedicated to the wakf has been published as per Section 5 of the Wakf Act
and a person aggrieved can seek redresal before the competent Court within one year from the date of publication, but cannot raise his little finger
thereafter is the dictum laid down in the above said case. That is not the case herein. Ex. X.2-letter written by the Tamil Nadu Wakf Board to the
second plaintiff, will clearly go to show that under the Right of Information Act, the board has informed that the suit property ie., R.S. No. 46/4
measuring 5 acres 22 cents has been registered with the Tamil Nadu Wakf Board as required u/s 36 of the Wakf Act, 1995 and that the
notification in official gazette is yet to be made. As I have already observed, there is no prescribed time in the Wakf Act for notification u/s 5 of the
Wakf Act, and it cannot be presumed that on that score the dedication will revert back to the person who created the wakf.
The uncontroverted fact is that under Ex. A.1 deed of Wakf dated 10.12.1936, the dedication has been made by the father of the first plaintiff in
favour of Wakf. Under such circumstance, the son, the first plaintiff, can not ask for the return of the same. For this proposition of law, the learned
Counsel for the revision petitioner would rely on Sayyed Ali and Others Vs. Andhra Pradesh Wakf Board Hyderabad and Others, The relevant
observation in the said dictum for the purpose of deciding this revision runs as follows:
lastly, it was contended by the learned Counsel for the appellant that once patta, under the Inams Act, having been granted infavour of
Mokhasadar, it was not open to the High Court to hold that the property was a Wakf property. In other words, the argument seems to proceed
on the basis that once patta has been granted under the Inams Act to Mokhasadars, the land has ceased to be a Wakf property. It may be stated
that a Wakf is a permanent dedication of property for purposes recognized by Muslim law as pious, religious or charitable and the property having
been found as Wakf would always retain its character as a Wakf. In other words, once a Wakf always a Wakf and the grant of patta in favour of
Mokhasadar under the Inams Act does not, in any manner, nulify the earlier dedication made of the property constituting the same as Wakf. After
a Wakf has been created, it continues to be so far all time to come and further continues to be governed by the provisions of the Wakf Act and a
grant of patta in favour of Mokhasadar does not affect the original character of the Wakf property.
So, I am of the view that once the wakf has been created under Ex. A.1, dated 10.12.1936, the first plaintiff, who is the son of the executant of
Ex. A.1 � deed of wakf cannot claim exclusive right in respect of the property dedicated under Ex. A.1 on the basis of the entries in the revenue
records.
The raitio in Tamil Nadu Wakf Board Vs. Hathija Ammal (Dead) by Lrs. etc. etc., is not applicable to the present facts of the case because
the dictum in that ratio is that the Wakf Board without publication of the notification as contemplated u/s 5(2) of the Wakf Act cannot file the suit
for declaration and possession. In the case on hand, the Wakf Board has not filed any suit, but the plaintiff has filed the suit claiming that the is
having right in respect of the suit property which has already been dedicated by his father under Ex. A.1 to the Wakf.
The ratio decidendi in Garib Das and Others Vs. Munshi Abdul Hamid and Others, , deals with the creation of wakf and that the facts stated
therein are not applicable to the present facts of the case.
In Punjab Wakf Board, Ambala Cantt. Vs. Cpat. Mehar Singh and Others, , the dictum is that in the absence of any document to show that
the dedication of the property to the Wakf there cannot be a claim by the Wakf Board in respect of the property against the person, who is in
possession of the property.
The ratio decidendi in 1997(2) MLJ 77 (SC) Mohammad v. Mohammed Beke, also reiterates that there must be a creation of wakf by the
founder and his intention to dedicate the property must be declared for the wakf.
In Ex. A.1 � deed of wakf, the intention has been clearly stated by the person, who created the wakf as to the construction of the Matharsa,
the property has been dedicated. The ratio decidendi in M.P. Wakf Board Vs. Subhan Shah (D) By LRs. and Others, , also deals with the nature
of dedication of property and that it must be proved that such a property became wakf by reason of long use. While dealing with the question of
maintainability of the suit it has been observed by the Honourable Apex Court as follows:
The property was dedicated to the Dargah, if any, a long time back. An Application for registration of the said proeprty as a Wakf property in
trems of Section 25 of the 1995 Act, therefore, could have been filed only within the period specified thereunder, viz., nine months from the date of
coming into force of the said fct. Registration of Wakfs whether created before or after the commencement of the said Act is governed by Section
A copy of the Wakf deed was also required to be enclosed with such an Application. Sub-section (70 of Section 25 of the 1954 Act provides
for making of an inquiry into the correctness or otherwise of the contents of the said Application.
Now the first plaintiff is not questioning the validity of the deed of wakf created by his late father under Ex. A.1. The first plaintiff is trying to
execute a sale deed in respect of the suit property which has already been dedicated by his father under Ex. A.1 wakf deed. I am of the view that
once a dedication has been made to god under Ex. A1 thereafter under no circumstance it can be revoked. It is the settled proposition of law that
in revision unless the findings of the trial Court is shown as perverse, the Court sitting in revision cannot interfere with the same. Basing on the
entries in the revenue records, the learned trial Judge has carried away by the same had decreed the suit, which in may opinion is perverse and
erroneous, requiring interference from this Court.
In fine, the revision is allowed and the judgment in O.S. No. 67 of 2005 on the file of the Principal Subordinate Judge, Cuddalore, is
dismissed. The first defendant/revision petitioner (Wakf Board) shall take immediate steps within two months to publish in the gazette the subject
matter of the suit as contemplated u/s 5 of the Wakf Act. No costs. Connected Miscellaneous Petitions are closed.