Lal Misra (Dead) Through Lrs Vs. Civil Judge, Lucknow & Ors  Insc 123 (13
Tarun Chatterjee & Altamas Kabir
ALTAMAS KABIR, J.
This appeal is directed against the judgment and order dated 13th October, 1998 passed by the High Court of Judicature at Allahabad, Lucknow Bench,
dismissing the Writ Petition, being No. 4272/1983, filed by the appellant
The admitted case of the parties is that one Mirza Mohammed Haider created a
wakf of his entire properties, including the property in question, in 1926 and
appointed his son Piarey Mirza as the Mutwalli thereof. The said wakf was
registered under Section 38 of the U.P. Muslim Wakfs Act, 1936, (for short 'the
1936 Act' ) which is para materia with Section 29 of the U.P.Muslim Wakfs Act,
l960 (for short 'the 1960 Act'). In view of Section 5 (1) of the 1936 Act, a
notification was issued in the Uttar Pradesh Gazette of 23rd January, 1954 as per the report of the Commissioner of Wakfs, U.P. The wakf and its properties
are duly registered in the register maintained by the Board of Wakfs.
Subsequently, in 1958, the Wakif (creator of the wakf) filed a suit against
the Mutwalli for a declaration that the properties in question did not
constitute a wakf. Significantly, the Board of Wakfs was not made a party to
the suit and the suit was collusively decreed on compromise. Immediately
thereafter, the Wakif, namely, Mirza Mohammed Haider, and his son Piarey Mirza
transferred the disputed plots to the present appellant by a registered conveyance
dated 19th April, 1958. At that point of time, the said Mirza Mohammed Haider
and his son Piarey Mirza were purportedly recorded as Bhumidars in the revenue
record and the plots in question were recorded as Baghat Kalmi (Mango Groves
for Kalmi varieties of mangoes). Consolidation proceedings are said to have
taken place in 1962 during which no objections were raised and the Wakif, as
also the Mutwalli, transferred the properties in question to the appellant and
his name was accordingly recorded in the revenue records.
When the aforesaid facts came to the notice of the Shia Central Board of
Wakf, Lucknow, it requested the Deputy Commissioner to issue notice to the
appellant and to direct him to hand over possession of the plots in dispute to
the Secretary of the said Board. The said Notice dated 18th March, 1973 was
received by the appellant on 12th April, 1973 and on receipt thereof, the
appellant filed an appeal in the court of District Judge, Lucknow, for quashing
the same. The said appeal, being Misc. Appeal No.44/1973, was dismissed by the
Civil Judge, Lucknow, by his judgment dated 31st March, 1983 upon holding,
inter alia, that the compromise decree effected between the Wakif and the
Mutwalli was not binding on the Board as the Board had not been made a party to
the suit and the suit had been decreed on compromise. The said decision of the
Civil Judge, Lucknow, was questioned by the appellant herein by way of Writ
Petition No. 4272/1983 before the High Court of Judicature at Allahabad
(Lucknow Bench). The High Court by its judgment impugned herein considered the
matter in great detail, both factually as well as from the legal stand point,
and ultimately came to a finding that since the registration of the wakf in the
Register of Wakfs maintained by the Board, its notification in the Official
Gazette, the notification issued under Section 5 of the 1936 Act and the
entries made in the Wakf Register maintained under Section 30 of the 1960 Act,
had not been challenged, such questions could not be raised in the appeal
preferred under Section 49 (4) of the 1960 Act.
Assailing the said judgment of the High Court, learned counsel, Mr. K.K.
Mohan, contended that once the revenue record stood altered and the properties
in question were recorded as the secular properties of the appellant and having
further regard to the decree passed in the suit filed by the Wakif, the
existence of the wakf, if any, stood obliterated.
Even though the properties continued to be on the register of the Board of
Wakfs, they ceased to be wakf properties and the Deputy Commissioner had no
authority to issue the impugned notice under Section 49 A read with Section 57A
of the 1960 Act and the same was liable to be quashed and the order of the
Allahabad High Court challenged in this appeal was liable to be set aside.
Counsel appearing for the Shia Central Board, on the other hand, contended
that the writ petition filed by the appellant herein had been rightly dismissed
upon a correct understanding of the law relating to the creation of Wakfs. It
was submitted that the Allahabad High Court had very correctly held that after
the execution of the Wakf Deed the properties in question vested in the
Almighty in perpetuity and neither the Wakif, Mirza Mohammed Haider, nor the
Mutwalli, Piarey Mirza, had any authority to transfer the said properties to
the appellant as the Wakif as well as the Mutwalli ceased to have any right
over the property. It was urged that the status of Mutwalli is like that of a
manager appointed to look after the wakf properties but not to treat the same
as his personal properties. The collusive decree between the Wakif and his son
was patently a void transaction and could not be acted upon in law.
Having gone through and considered the judgment of the learned Single Judge
of the Allahabad High Court, we see no reason to take a view different from
those expressed therein.
In our view, the law relating to the creation and continuation of wakfs has
been correctly explained by the learned Judge in keeping with the
well-established principles that once a wakf is created, the wakif stands
divested of his title to the properties which after the creation of the wakf
vests in the Almighty. It is no doubt true that in a given case the creation of
a wakf may be questioned if it is shown that the wakif had no intention to
create a wakf but had done so to avoid a liability. But in the instant case,
such a stand is not available to the Wakif or the Mutwalli since the wakf was
created in 1926 and was registered under Section 38 of the 1936 Act and was
also notified in the Official Gazette in January 1954. It was only thereafter
in 1958, that is, after 32 years that the Wakif filed a collusive suit which
was decreed on compromise. The Wakif did not, however, question the
registration of the wakf under the provisions of the 1936 Act, nor did he
challenge the gazette notification published in January, 1954.
Lastly, we do not also find any force in the submission that since the
revenue records were altered to show the properties to be the secular
properties of the appellant, the wakf character of the properties had been
obliterated. The law is well settled that once a wakf is created it continues
to retain such character which cannot be extinguished by any act of the
Mutwalli or anyone claiming through him.
The appeal, therefore, fails and is dismissed without any order as to costs.
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