Wakf Board, Hyderabad vs Biradavolu Balarami Reddy

The Appellant herein is the Wakf Board, Andhra Pradesh who was the plaintiff in O.S, No. 50 of 1968 Sub-Court, Nellore which was later numbered as O.S. 6 of 1972 of District Court, Nellore. The suit was filed for recovery of possession of an extent of 161 ankanams out of 0-63 cents situate in Survey No. 461 in Nellore village. The case of the plaintiff was that this formed part of certain property which was endowed in favour of a mosque called Badruddin Ali Khan Mosque for the performance of Pesh Imam service. In 1950 the properties were in the enjoyment of two brothers Mohd Ghouse and Abdul Hafees in whose favour a release deed was executed on 21-10-1937 by other family members. The brothers partitioned their properties on 7-5-1948 and agreed to perform the services in turn of six months duration On 10-8-1950 they sold item 1 of the plaint schedule property to the defendant. On the same day they sold a part of item 2 to one Sundarram Reddy who in turn sold it to the defendant''s brother under sale deed dt. 9-5-1952. The remaining part of item 2 was said by are Rahamatunnisa Begam an 1-1-1959 under an agreement of sale to one (sic), the sister of the defendants. Subsequently, this part of item 2 also came in to possession of the defendant By reason of these transactions the defendant was in possession of both the the items 1 and 2 of the plaint schedule. The property endowed to the Mosque the plain schedule property was notified as Wakf property under Sec. 5 of the Wakf Act by a notification dt. 2-5-1963. The plaintiff filed the above suit for recovery of possession claiming that the property was wakf property, that it was inalienable and the alienations in favour of the defendant or his predecessor in title were would and the plaintiff was therefore, (sic) to recovery possession of the property from the defendant. The defendant resisted the suit. He denied that the property was Wakf Property. He contended that the properties belonged to the two brothers Mohd (sic) Abdul Hafees in their personal capacity and they were entitled to self the property to the defendant or his predecessors in interest. He also contended that they acquired title by adverse possession and the suit was barred by limitation,

The plaintiff had the plaint amended subsequently by substituting the name "Abbas Ali Khan Mosque" for the name ''Badruddin Ali Khan Mosque'' which was used in the original plaint.

The learned District Judge framed the necessary issue. He came to the conclusion that Abbas Ali Khan Mosque was a public mosque or a public wakf The plaint schedule property was endowed for performing Pesh Imam service in Mastafa Ali Khan Mosque and was therefore wakf property and inalienable. He therefore came to the conclusion that the defendant who was an alience under a void alienation was in wrongful possession of the property. He further held that the defendant did not acquire title by adverse possession and the suit was not barfed by limitation. Regarding the identity of the property, the District Court found that the suit property was identical with the property which was endowed in favour of Mustafa Ali Khan mosque Having held all these issues in favour of the plaintiff, the learned District Judge dismissed the suit holding that the plaintiff, had filed the suit on the allegation that the suit properties were endowed for the purpose of service in Abbas Ali Khan Mosque, but as it was found that it had been endowed in favour of another mosque called Mustafa Ali Khan mosque, the suit could not be decreed. The plaintiff has preferred this appeal against the said judgment and decree.

The learned counsel for the appellant submits that the court below was wrong in dismissing the suit on the above ground having held all the issues in favour of the plaintiff. He submitted that Mustafa Ali Khan Mosque in whose favour the court found that the property had been endowed is the same as Abbas Ali Khan Mosque. Even assuming that the plaintiff has not been able to establish that the mosque is the same, he contended that at any rate there cannot be any doubt that the property is wakf property having been endowed in favour of Mustafa Ali Khan Mosque and therefore vested in the Board. It is immaterial whether Abbas Ali Khan Mosque in inexistence or not and whether Mustafa Ali Khan Mosque is the same as Abbas Ali Khan Mosque.

On a perusal of the Inam Fair Register, Ex-A 1 we find that the property was endowed in favour of Mustafa Ali Khan Mosque for the purpose, of Pesh Imam service to he performed in the mosque. In the plaint, however, the amended name is given as Abbas Ali Khan Mosque. But from a perusal of the evidence we are of the view that whatever may be the name of the mosque, the Pesh Imam who sold the property to the first defendant or his predecessors-in-interest were the Pesh Imams of the very mosque in whose favour the property had been endowed as evidenced by Ex. A-1 It in not the case of the defendants that these properties were endowed to any other Mosque and the vendors were the Pesh Imams of same other mosque P. W. 2 in his evidence stated shat the endowment was made by Udyagiri Newabs and he was member of the Udyagiri Jagirdar''s family. He said that Abdul Khader Khan is the father of Abbas Ali Khan whose father was Badruddin Ali Khan. Badruddin Ali Khan''s father was Mustafa Ali Khan. He also stated that the mosque is situated by the side of the police station in Pedda Bazaar street and is known as Abbas Ali Khan Mosque and Mustafa Ali Khan Mosque. He submitted that after the life-time of Waheb Saheb Ghouse Saheb and Hafees Saheb were the permanent Pesh-Imams. We do not see any reason to disbelieve P W. 2. His evidence establishes the genealogy of the Udayagiri Nawabs. It is possible that these mosques were known according to the names of the Nawabs who were for the time being in power. It is therefore possible that when Mustafa Ali Khan was Nawab it was called Mustafa Ali Khan mosque, subsequently during the life time of Badruddin Ali Khan it was known as Badruddin Ali Khan mosque and later on at the time of Abbas Ali Khan it was called as Abbas Ali Khan mosque. We have no hesitation in holding that the court below was wrong in dismissing the suit on the ground that the grant was made to Mustafa Ali Khan Mosque whereas the plaintiff is claiming the property in the suit as belonging to Abbas Ali Khan Mosque.

The learned counsel for the respondent however submitted that the suit deserves to be dismissed as the property did not belong to the institution namely the mosque, but to the two service holders, Mohd Ghouse and Abdul Hafees who were competent to alienate the properties. He submitted that a grant was not to the institution but to an individual burdened with Pesh Imam service and hence the property was alienable, the only condition being that the alienee would be bound to perform the service. Even if it was considered to be an inam attached to the office of Pesh Imam, he argued that the alienation will not be void, but the Government would be entitled to resume to service inam The property would not belong to the wakf and would not vest in the plaintiff Board. As the Inam fair register is before us, the question whether the property was granted to the institution or to the individual burdened with service or was attached to the service of the Pesh Imam is to be considered in the light of the recitals in the inam fair register. It has been repeatedly laid down by the Privy Council and the Supreme Court that the inam fair registrants a great act of State and the recitals therein would (sic) over recitals in all other registers. The Inam fair register in Ex-A. 1. In Col. 2 namely, the general class to which the inam belongs, it is recited that it is a religious endowment, In Col. 8 it is stated that it is for the service of Pesh Imam in the mosque of Mustafa Ali khan at Nellore. It is also stated that the service is performed. In Col. 10 the the recitals is that it is to be "so long as the service performed" Col. 13 shows, that the name of the original grantee is not known in the remarks Col. it is stated that the inam can be confirmed permanently so long as the service is performed. From a perusal of the various columns of the inam fair register it is clear that the grant was to the mosque for the purpose of having the pesh imam service performed. It is no doubt true that it has been held that the expression "religious endowment" or "Devodayam" is not conclusive on the question whether the grant was made to deity (in cases arising with regard to the Hindu temples) But it has been pointed that it is a strong circumstances taken along with all others recitals to show that the grant is to the institution. It is significant to note that the entry as contained in Col. 10 in the remarks collared with Col 8 that it is for the service of pesh imam in the mosque so long as the service is performed. In Lakshiminarsimhachnri V. Agatweswaraswmivara swamiva 1960 (II) A.W. R. SC. 61 it was argued that the words in the inam fair register that the grant was to continue as long as the service is performed were indicative of the fact that the grant was not to the deity but to the persons individually with the obligation of performing a particular service to the deity. The Supreme Court pointed out that there is a distinction between the words" to be performed so long as the service is performed and the words "to be confirmed to the party so long as he continues the performance of the service" Approving of the decision of the Madras High Court in Hindu Religions Endowments, Madras vs. Thadikonda Koteswara rao AIR 1937 Mad 852 the Supreme Court he''d that the latter was a personal grant and the former was not. In view of this decision of the Supreme Court we hold that in this case also the grant was to the mosque. Sri J. V. Survanarayana Rao drew our attention to the fact that in the column relating to the grantee it is mentioned that the name of the granted is not known and submitted that if really the grant was to the mosque if is not possible to explain this entry. This circumstance will not out weigh the clear recital that the grant is made for the purpose of Pesh-Imam service in the mosque an was to continue so long as the service was performed. In this connection we agree with the submission of Sri Seetaramaraju that there is a distinction between grants to mosque and grants to temples. As pointed out by the Supreme Court in Zain Yar Jung V Ditector of Endowments AIR 1963 SC. 985 & 988 in the case of a wakf, the right of wakf is extinguished and the ownership is transferred to the Almighty. While the Supreme Court observed that there was no prohibition against the creation of secular trust of a public and religious character, usually followers of islam would normally prefer to dedicate their property to the Almighty and create a wakf in the conventional Madomadan sense. The distinction that is usually drawn between the three categories of inams as brought out in the well known case of Srinivasa Ayyar V. Board of Commissioners for Hindu Religious Endowments Madras and Others AIR 1934 Mad. 258 Where the inams were divided into there categories, namely grams to the institution, grants to individuals burdened with service and grants attached to an office cannot be applied with the same rigour to the grants in the case of Mohommedan institutions or servisers connected therewith Sri Seetharamaraju went to the extent of contending that even assuming that the grant was in favour of an individual burdened with service still it would be a wakf within the meaning of the Wakf Act and relied upon the decision of a single judge of the Madras High Court in S.A. Batha Saheb V. Jamia MasJid Mosgue 1966 I MLJ 367 We do not think it is necessary to go so far as the learned Judge in that decision in the view which he has taken on the facts of the case.

Sri Suryanarayana Rao further contended that in proceedings under the Inams Abolition Act 37/56 it was held that this property did not belong to an institution, and as that decision has become final and cannot be questioned in a civil court in view of Sec. 3 (6) and 3 (7) of that Act. He referred to us to Ex. B-28 dt. 31-10-1959 which is the decision of Inams Deputy Tahsildar in proceedings under Sec. 3 of the Act wherein he had to decide inter alia whether the property was inam land held by an institution and he held that it was not held by an institution. The learned counsel for the appellant contended that the Wakf Board was not given notice of these proceedings and hence it was not bound by that decision. He also submitted that there was no proof that this decision was published as required by the Act, in those circumstances that decision be considered final or binding. Sri Suryanarayana Rao however drew our attention to Ex. Bo, a subsequent order made by the Inams Tahsildar in which it is pointed the Wakf Board became aware of the decision in Ex. 28 and raised the same contention that the decision in Ex. B-28 was not binding on them and that contention was overruled and the Tahsildar again held that the decision in Ex. B-28 cannot be re-opened.

We do not consider it desirable to determine this question at present because there was no issue as to whether the decision of the Inams Tahsildar in the proceedings under the Inams Abolition Act was final and binding and whether the suit is maintainable and we do not have the advantage of the views of the lower court. Sri Seetharamaraju contended that the respondent ought not be allowed to raise this question at the stage of the appeal as it was not raised in the written statement. We are not however willing to accede to this contention. The respondent did not raise it in the written statement because no reference was made to these proceedings in the plaint, even though the plaintiff Wakf Board was aware of B-28 and B-5 on the date of the suit. In these circumstances we consider that the proper course in the interest, of both the parties is to frame the fallowing issue and direct the court below to give its finding on the said issue.

(1) whether the decision of the Inam Tahsidar dt. 31-1-1959 (Ex. B-28) or the decision of the Tahsildar under Ex. B-5 dt. 17-5-1965 that survey No. 461 is not held by an institution is valid and binding on the plaintiff?

Both the parties will be at liberty to adduce such evidence as may be necessary for the purpose of deciding this issue. The finding will be recorded with in two months from the date of receipt of records by the lower court Time for objections ten days.