Aqeel Ahmad vs Mohd. Moin & Anr.
2013 Latest Caselaw 5188 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 

 
Case :- WRIT - A No. - 40209 of 2013
 

 
Petitioner :- Aqeel Ahmad
 
Respondent :- Mohd. Moin & Anr.
 
Counsel for Petitioner :- Saurabh Srivastava
 
Counsel for Respondent :- Manish Tondon,Atul Dayal
 

 

 

 

 
                                           ________
 

 

 

 
Hon'ble Rajes Kumar, J.

Heard Sri Saurabh Srivasava, learned counsel for the petitioner and Sri Atul Dayal, assisted by Sri Manish Tandon, learned counsel appearing on behalf of the respondents.

The brief facts, as set up by the petitioner in the present writ petition, are that House No. 99/11, Bekanganj, Kanpur Nagar, was owned by one late Mst. Fatima Bibi. It appears that there were several tenants in the said house. One of the tenants was Jalil Ahmad. Mst. Fatima Bibi, during her life time, dedicated the said property in the name of 'Allah' 'The God', through a registered will dated 24th January, 1970. Subsequently, she executed another registered will, dated 18th April, 1980, dedicating her property in the name of 'Allah', 'The God'. Lastly, Mst. Fatima Bibi again executed a third registered will deed dated 15th June, 1981 by which she bequeathed said property to Smt. Mahmooda Begum. Mst. Fatima Bibi died on 14th December, 1981. Smt. Mahmooda Begum also died on 23rd December, 1983. After the death of Smt. Mahmooda Begum, her son became the owner of the property, who sold the property to the respondents by means of the registered sale deed dated 13th December, 1991. It appears that the respondents filed the release application, under Act No. 13 of 1972, in the year 1994 against Jalil Ahmad for release of the accommodation, which was registered as Rent case No. 45 of 1994. Jalil Ahmad died during the pendency of the said rent case and his legal heirs, namely, his widow and five daughters were substituted. The release application was allowed vide order dated 27th April, 1996. Appeal filed against the order dated 27th April, 1996, has been dismissed against which Writ Petition No. 11365 of 1998 has been filed, which too has been dismissed vide an order dated 30th July, 2012. The respondents moved a petition under Section 23 of Act No. 13 of 1972 to enforce the order dated 27th April, 1996, passed in Rent Case no. 45 of 1994, which was registered as Miscellaneous Case No. 2/23/2011, Mohd. Moin and others v. Smt. Julekha and others. The Prescribed authority issued warrant of possession.

It is the case of the petitioner that after execution of the first will deed on 24th January, 1970 and by the declaration made therein, the property has been dedicated to 'Allah', 'The God' and a waqf was created and the said property vested on the waqf. When the petitioner came to know about the alleged misappropriation of the waqf property, he applied before the Sunni Central Waqf Board for registration of the property as the waqf property. An enquiry was made by the Inspector of the Sunni Central Waqf Board and thereafter, notices were issued to the respondents and the petitioner and on consideration of the evidence filed by both the parties, Sunni Central Waqf Board, vide the order dated 8th July, 2006, has held that the Premises No. 99/11, Bekanganj, Kanpur Nagar, is a waqf property and Zamila Khatoon was appointed as the President, the petitioner as the Secretary and one Wakil Ahmad was made member. Subsequently, Zamila Khatoon died and the constitution of the Mutwalli was changed vide order dated 25th May, 2008 by the Board. The petitioner, however, continued as the Secretary. Against the order of Waqf Board, the respondents instituted a Misc. Case No. 281/70 of 2006, Mohd. Moin and others vs. Sunni Central Waqf Board before the Waqf Tribunal, Kanpur Nagar. Sunni Central Waqf Board filed the objection and the petitioner also filed his objection and the said case is pending for disposal before the Waqf Tribunal. The Tribunal has not passed any interim order and when the Waqf Board directed the District Magistrate, Kanpur Nagar to deliver the possession to the Waqf, the Waqf Tribunal vide order dated 22nd July, 2011 has directed to maintain status quo. The matter is still pending.

According to the petitioner, when the Prescribed authority issued warrant of possession, then the petitioner came to know about the rent control proceedings and thereafter, the petitioner filed the objection in Misc. Rent case No. 2/23/11, which has been registered as Misc. Case No. 20/74/2012. The objection has been filed stating that the property in question is a waqf property of which the petitioner is a Mutwalli, therefore, the provisions of Act No. 13 of 1972 do not apply in view of Section 2(bbb) of the Act. Thus, no warrant of possession can be issued under Act No. 13 of 1972. The respondents also filed their objection. The Prescribed authority, vide order dated 15th July, 2013 has rejected Misc. Case No. 20/74/2012, Aqeel Ahmad vs. Mohd. Mobin, which is being impugned in the present writ petition.

The Prescribed authority has rejected the objection mainly on the ground that in the Writ Petition No. 11365 of 1998, the tenant has stated that the property belongs to the waqf and is registered with the Waqf No. 2589 at Kanpur and having regard to these facts, the writ petition has been dismissed. It is further observed that the Execution court cannot go beyond the decision of the court in the main case. It has also been observed that the petitioners are not in possession of the accommodation in dispute and the same is in the possession of the tenant, which is to be got vacated and in this view of the matter, the title cannot be looked into. It has further been observed that in case if the parties succeed in the Tribunal, then they can claim possession over the premises in dispute.

Sri Saurabh Srivastava, learned counsel for the petitioner, submitted that the moment a declaration of dedication to 'Allah' is made, the waqf stands created and the same cannot be revoked. He submitted that by the registered will dated 24th January, 1970, Mst. Fatima Bibi had dedicated the property in the name of 'Allah', 'The God', therefore, the property vested on 'Allah' and waqf was created at that stage itself and the property vested in the waqf , thus, by the subsequent will, such declaration cannot be revoked. He submitted that in view of Section 2(bbb) of Act No. 13 of 1972, the provisions of the Act No. 13 of 1972 do not apply to the waqf property and as such the entire proceeding under Act No. 13 of 1972, relating to the release of the premises in dispute in favour of the respondents, is wholly without jurisdiction, null and void. In the circumstances, the Execution court cannot proceed to deliver the possession of the property to the respondents in pursuance of the order in the Rent case. He also referred Section 173 of the Mahommedan Law, the decisions of the Apex Court in the case of Chhedi Lal Misra (Dead) Through Lrs. v. Civil Judge, Lucknow and others, reported in (2007) 4 SCC 632 and in the case of Mathai Samuel and others v. Eapen Eapen (dead) by Lrs. and others, reported in 2013 (1) CRC 263.

Sri Atul Dayal, learned counsel appearing on behalf of the respondents, submitted that Section 2(h) of the Indian Succession Act, 1925 (hereinafter referred to as the 'Succession Act') defines will, which says that "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. Section 62 of the Succession Act provides that a will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will. He submitted that in the will dated 24th January, 1970, it is specifically mentioned that till her death, Mst. Fatima Bibi would be the owner of the property. In the second will dated 18th April, 1980, again, similar words have been used and reiterated. In the third will dated 15th June, 1981, which has been executed in favour of Smt. Mahmooda Begum, the earlier two wills have been specifically revoked, by giving reasons, and the property has been bequeathed in favour of Smt. Mahmooda Begum. In the said will, it is specifically mentioned that testator would be the owner of the property till she is alive and after her death, the property shall vest on the person in whose favour the will has been executed. The averments made in all the three wills clearly show that the intent of Mst. Fatima Bibi was to continue as the owner of the property during her life time. Therefore, the question of formation of waqf by a registered will dated 24th January 1970 did not arise. The declaration made in the wills dated 24th January, 1970 and 18th April, 1980 could be effective only after the death of Mst. Fatima Bibi and not prior to that. Under Section 62 of the Succession Act, a will can be revoked or altered by the testator during his or her life time. Mst. Fatima Bibi through her third registered will dated 15th June, 1981, had revoked the earlier two wills, dated 24th January, 1970 and 18th April, 1980 and such revocation was in accordance to law. He further submitted that after the death of Mst. Fatima Bibi on 14th December, 1981, as per her intent expressed in the will, Smt. Mahmooda Begum became the owner of the property (House No. 99/11, Bekanganj, Kanpur Nagar) and after her death, her son became the owner of the property, who got the absolute right to sell the said property, which he sold to the respondents by means of the registered sale deed dated 13th December, 1991 and by virtue of said registered sale deed, the respondents are the absolute owners of the said property. He submitted that registration of the property by Sunni Central Waqf Board was wholly illegal and without jurisdiction inasmuch as no waqf has been created in respect of the said property and as such the property never vested on the waqf. It has been further submitted that the property cannot be dedicated to 'Allah' as 'Allah' is omnipotent and is not a juristic or legal entity, therefore, no property can be dedicated to 'Allah' to form the waqf. Section 173 of Chapter XII of Mahomedan Law defines waqf, according to which "Waqf" means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable. The aforesaid definition does not say dedication to 'Allah'. It provides dedication by a person for any purpose recognised by the Mussalman law as religious, pious or charitable. Thus, the submission of learned counsel for the petitioner that once the dedication is made to 'Allah' by way of will, it cannot be revoked, has no legs to stand.

I have considered rival submissions and perused the impugned order.

The Indian Succession Act, 1925 is a Central Act, enacted by the Parliament and is applicable to all the citizens of the country. Section 2(h) of the Succession Act defines the will, according to which, "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. Aforesaid definition of the will clearly states that the declaration of the desire will be effective after the death of the testator. Section 62 of the Succession Act provides that a will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will. Therefore, revocation of the earlier two wills, dated 24th January, 1970 and 18th April, 1980 by the subsequent will dated 15th June, 1981 by Mst. Fatima Bibi was in accordance to law.

Perusal of the aforesaid three wills reveals that in all the three wills, Mst. Fatima Bibi categorically stated that till she is alive, she would be the owner of the property and after her death, the property would vest on the person in whose favour the will was being executed. Thus, there was clear intention of the testator, that the will executed by her would be enforced after her death and during her life time she would be the owner of the property. Therefore, there was no question of formation of any waqf by virtue of the wills dated 24th January, 1970 or 18th April, 1980 during the period when Mst. Fatima Bibi was alive inasmuch as the declaration made in the will was not enforceable. In the third will dated 15th June, 1981, both the aforesaid wills, dated 24th January, 1970 and 18th April, 1980 were revoked. Reasons for revocation of the aforesaid wills have also been given. The reasons for execution of the will in favour of Smt. Mahmooda Begum are also mentioned. Therefore, in view of the declaration of the testator by the will dated 15th June, 1981 that after her death, the property would devolve upon Smt. Mahmooda Begaum, she became the owner of the property and after the death of Mahmooda Begum, her son became the owner and, therefore, her son had absolute right to execute the sale deed and by virtue of the sale deed, executed on 13th December, 1991 in their favour, the respondents became the owner of the property. So long as the registered sale deed dated 13th December, 1981 stands valid and is not being declared null and void by any competent authority, the respondents shall continue to be the owner of the property in dispute.

I do not find substance in the argument of learned counsel for the petitioner that once a dedication of property is made to 'Allah', the 'waqf' stands created and it cannot be revoked.

There appears to be substance in the argument of learned counsel for the respondents that since 'Allah' is omnipotent and is not a juristic person, therefore, the dedication of any property to 'Allah' is not legally recognised. In the Muslim law, there is nothing to suggest that 'Allah' is a juristic person. In view of above, he submitted that though any property can be dedicated in the name of the 'God' to form a 'waqf', but no property can be dedicated to 'Allah' ('God').

In my view, it is not necessary to go into this issue in detail as it is not necessary for the purposes of the present case.

Section 173 of Chapter XII of Principles of Mohammedan Law of Sir Dineshaw Fardunji Mulla provides that a 'waqf' can be formed by any person professing the Mussalman faith by dedication of any property for any purpose recognized by the Mussalman law as religious, pious or charitable. The same definition of the 'waqf' has been adopted under Section 3(r) of the Waqf Act, 1995. A dedication may be in writing or it may be oral. It may be, that when a dedication is made by way of gift or by any other mode, other than by will by such declaration a property vests on a waqf and a waqf is created and if such property vests on waqf, the same cannot be revoked. As stated above, a declaration of a dedication of a property by will may only take effect after the death of the testator and the testator has also the right to revoke the same during his/her life time.

I have perused the decisions relied upon by the learned counsel for the petitioner.

In the case of Chhedi Lal Misra (Dead) Through Lrs. v. Civil Judge, Lucknow and others (supra), by the dedication a Waqf has been created by one Mirza Mohammaed Haider, dedicating his entire property to the waqf in 1926 and appointing Mutwalli. The waqf was registered under Section 38 of the U.P. Muslim Waqf Act, 1939 which is in pari materia with Section 29 of the U.P. Muslim Waqfs Act, 1960. A notification, under Section 5(1) of the 1936 Act was issued in the U.P. Gazette of 23rd January, 1954. A waqf and its properties were duly registered in the register maintained by the Board of Waqfs. Subsequently, in 1958, the Waqif (creator of the Waqf) filed a collusive suit against the Mutwalli for declaration that the property in question did not constitute a Waqf, which has been decreed on a compromise. Immediately thereafter, Waqif transferred the disputed plots to Chhedi Lal Misra by a registered conveyance dated 19.4.1958. When the aforesaid facts came to the notice of the Shia Central Waqf Board, Lucknow, it requested to the Deputy Commissioner to issue notice to Chhedi Lal Misra and to direct him to handover the possession of the plots in dispute to the Secretary of the said Waqf Board. On the receipt of the said notice, Chhedi Lal Misra filed an appeal before the District Court, which was dismissed upon holding, interalia, that the compromise decree effected between the Waqif and the Mutwalli was not binding on the Board as the Board has not been made a party to the suit and the suit has been decreed on compromise. Writ petition filed by Chhedi Lal Misra against the said order has also been dismissed by the High Court against which he filed an appeal before the Apex Court which too has been dismissed by the Apex Court. The Apex Court has upheld the view of the High Court and expressed that the law relating to the creation and continuation of waqfs has been correctly explained by the learned Judge in keeping with the well-established principles that once a waqf 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 stand is not available to the wakf 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.

Such is not the situation here. In the case in hand, the property has been dedicated by the will. The will was enforceable only after the death of the testator and as per the averments made in the will itself, the testator continued to be the owner of the property till her death. The earlier wills have been revoked prior to her death and, therefore, no occasion had arisen for creation of the waqf by virtue of the alleged two wills. Therefore, the decision in the case of Chhedi Lal Misra (Supra) is clearly distinguishable on facts and law and is not applicable in the present case.

Further, learned counsel for the petitioner also placed reliance on the decision of the Apex Court in the case of Mathai Samuel and others v. Eapen Eapen (dead) by Lrs. and others (supra) wherein in paragraph 23 the Apex Court has observed as follows:

"We, therefore, have to examine the composite character of Exhibit A1 document and interpret the same in accordance with the normal and natural meaning which is discernible from that document. In order to ascertain the intention of the testator, the point for consideration is not what the testator meant but what that which he has written means. It is often said that the expressed intentions are assumed to be actual intentions. This Court in A. Sreenivasa Pai and another v. Saraswathi Ammal alias G. Kamala Bai, 1985 (4) SCC 85 held that in construing a document, whether in English or in any Indian language, the fundamental rule to be adopted is to ascertain the intention adopted from the words employed in it. Reference may also be made to the judgment of the Privy Council in Rajendra Prasad Bose and another v. Gopal Prasad Sen, AIR 1930 PC 242 and C. Cheriathan v. P. Narayana Embranthiri and others, 2009 (2) SCC 673."

In my view the ratio laid down by the Apex, referred hereinabove, in paragraph 23, does not help the petitioner, rather it helps the respondents.

I also agree with the view of the court below that the Execution court has the only authority to execute the decision of the court and it cannot go behind it and in the execution proceeding, the title of the property cannot be examined.

In view of what has been discussed in the foregoing paragraphs, the writ petition, being devoid of merits, fails and is, accordingly, dismissed.

Order Date :- 26.8.2013

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