Chattisgarh High Court

Syed Iqbal Ahmed Rizvi vs The Chhattisgarh State Waqf Board on 24 September, 2021

                                      -1-



                                                                          AFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                        Reserved for orders on :29/06/2021
                           Order passed on : 24/09/2021
                              CR No. 26 of 2010
      Syed Iqbal Ahmed Rizvi, S/o Late Syed Ahmed Rizvi, Aged About 65
       Years, R/o Hospital Ward, G. E. Road, Raipur Chhattisgarh .......
       Appellant Before Tribunal, Chhattisgarh
                                                                 ---- Applicant
                                                                   (Appellant)
                                                               Before Tribunal
                                   Versus
     1. The Chhattisgarh State Waqf Board Through- Its Chief Executive
        Officer, Chhattisgarh State Waqf Board, Sec. -3, C- 12, Devendra
        Nagar, Raipur Chhattisgarh, Chhattisgarh
     2. Jalil Ahmed, S/o Raiyazularaheem Siddique (Now Rizvi), Real Father
        Khalil Ahmed Siddique, aged about 53 years, R/o R.D.S. Colony, A-12,
        Tikrapara, Raipur (C.G.)
     3. Faraz Ahmed, aged about 27 years S/o Late Syed Afzaal Ahmed Rizvi,
        R/o Bans Tall, Raipur (C.G.)
                                                             ---- Respondents

(Non-applicant) Before Tribunal

For Applicant - Shri Manoj Kumar Dubey, Advocate.

For Respondent No.3 - Shri Samsuddin Mirza, Advocate.

Hon'ble Shri Justice Rajendra Chandra Singh Samant CAV Order 24-09-2021

1. This civil revision has been brought being aggrieved by the order dated

15-12-2009 passed in Case No.22/07 by the Chhattisgarh Wakf Tribunal.

2. Brief facts of the case are these, that Vakil Ahmed Rizvi created a wakf

of his properties by a Wakfnama dated 30-03-1955. On that basis respondent

No.1, the Wakf Board by order dated 23-05-1998 registered the properties of

Vakil Ahmed Rizvi as wakf property and appointed respondent No.2 as

Mutwalli. The applicant/petitioner filed an application under Section 83 of the

Wakf Act, 1995, before the Chhattisgarh Wakf Tribunal on the grounds that

Wakfnama dated 30-03-1955 is invalid and fabricated document for the reason

that the executor of the wakf deed late Syed Vakil Ahmed Rizvi was mentally

unbalanced and was suffering from loss of memory. Therefore, he was not

competent to execute the wakf deed. The second ground raised was this, that

any Muslim can donate his property in wakf to the extent of one third of the

total property only. The wakf dated 30-03-1955 was not made public for about

43 years during which time the applicant and his family were in possession of

the disputed property. Another ground that was raised is this, that the decision

of the Board has been taken without following the procedure laid down under

Section 40 of the Wakf Act, 1995.

This application was contested by the respondents that the execution of

the Wakfnama dated 30-03-1955 was valid and the appointment of respondent

No.2 as Mutwalli was also in accordance with law. It was pleaded in written

statement that in a previous Civil Suit No.168-A/75 was filed by Afzal Ahmed

Rizvi, the predecessor of the applicant/petitioner, in capacity of Mutwalli in

which case the issue of the validity of the Wakfnama has been decided and this

petition under Section 83 of the Act, 1995 was opposed.

Learned Tribunal has framed as many as 20 issues in the case. An

enquiry was held and on the basis of the appreciation of the evidence, it has

been held that late Vakil Ahmed Rizvi was in a fit condition to execute the

Wakfnama dated 30-03-1955. It was held not proved that the property situated

in village Bhatgaon being in possession of the applicant was not fit to be

donated or gifted as wakf property. It was also held that when a Muslim does

not have any successor he cannot give the property in wakf to protect the right

of his relatives is wrong proposition. It was held that a Muslim can make wakf

of his property only to the extent of one third is a right proposition. It was held

that it was not proved that Wakfnama dated 30-03-1955 was a forged and

fabricated document. The learned Tribunal has on the basis of the conclusions

drawn held that execution of the Wakfnama dated 30-03-1955 was valid,

however, validity for the Wakfnama for whole property was not upheld. The

order dated 23.05.1998 of Wakf Board was set aside and it was directed that

respondent No.1 shall make an enquiry to specify one third of the property

belonging to Syed Vakil Ahmed Rizvi to be registered as wakf property.

3. It is submitted that the finding of the learned Tribunal on the point of

validity of the Wakfnama dated 30-03-1955 is incorrect. The applicant had

brought evidence to prove that executant Vakil Ahmed Rizvi was not in a fit

mental state and condition to execute Wakfnama. Therefore, his consent for

the execution cannot be regarded as free consent.

Second ground raised is this, that the executant of Wakfnama (Wakif)

had no entitlement to execute such Wakfnama for the reason that he himself

was lessee of the property which has been wakfed. A muslim who is in

possession of self owned property and has absolute title over the property, it is

only then such property can be wakfed.

The third point raised is this, that there is no legal consequence of the

Wakfnama as the Wakfnama has been made Al-al aulad, and a muslim cannot

make wakf of whole property belonging to him, according to the muslim law.

Therefore, he can create wakf of his property only upto the one third of the

whole property. It is also submitted that the Wakf Board has not followed the

procedure laid down under Section 40 of the Wakf Act. Hence, on this basis

whole order of the Wakf Board dated 23-05-1998 is liable to be set aside.

It is further submitted that wakf was created on 30-03-1955. Section

36(8) of the Wakf Act, 1995 very clearly provides that the application for

registration of wakf has to be made within three months from the date of

creation of wakf, which is not a case present. It is submitted that the disputed

property regarding which wakf has been created was enjoyed by the

applicant/petitioner and some of the property has been sold by the wife of Syed

Vakil Ahmed Rizvi. Therefore, possession of the said property was never

handed over by the applicant. It is also submitted that the property situated in

village Bhatgaon was a joint property and there had been no partition,

therefore, wakif had no authority to create wakf for the same.

Reliance has been placed on the judgment of M.P. High Court in the

case of Municipal Council vs M.P. Wakf Board, 1990 MPLJ 217 and it is

submitted that the impugned order is not sustainable. Therefore, it is prayed

that the petition be allowed and relief be granted to the applicant.

4. Respondents No.1 and 2 are not represented.

5. Learned counsel for respondent No.3 submits that the applicant have

come before this Court partially challenging the impugned order by which

learned Tribunal has directed to register one third of the property of the wakif

as wakf property. The proceeding before the Wakf Board is still to be taken up

to make an enquiry under Section 40 of the Wakf Act, 1995. It is submitted that

the application before the Tribunal and the revision before this Court suffer from

defect of non-joinder of necessary party. Faizal Rizvi was a necessary party,

therefore, the proceeding in this revision petition and before the Tribunal was

not proper because of the defect of non-joinder of necessary party.

It is submitted that the property regarding which the Wakf has been

created was absolutely owned by the wakif and the property wakfed was

received by him in his share in partition. The property regarding which the wakf

has been created is already one third of the total property belonging to the

wakif.

Reliance has been placed on the judgment of Hon'ble the Supreme

Court in the matter of Lolankutti Vs. Thomman and another, (1976) 3 SCC

528 and Gandhe Vijay Kumar Vs. Mulji @ Mulchand, (2018) 12 SCC 576

and in the case of Kiran Devi Vs. Bihar State Sunni Wakf Board and others,

2021 SCC OnLine SC 280.

Reliance has also been placed on the judgment of Allahabad High Court

on the matter of Haji Amir Ahmad and another Vs. Mohammed Ejaj

Hussain and another, 1935 SCC OnLine All 284 and Syed Ahmed Jawwad

(Dead) and another Vs. Qudesiya Saidullah, Holding Power of Attorney

and others, 2004 SCC OnLine All 958. It is submitted that the wakf created by

the wakif Syed Vakil Ahmed Rizvi was valid. Hence, the order passed by the

Tribunal is sustainable.

6. In reply, it is submitted that the applicant have proved in enquiry before

the Wakf Board that the property regarding which the Wakif has been created

was joint property of the wakif and others and partition had never been taken

place. Further, some of the land that has been wakfed is Government land

which was obtained on lease, which could not have been wakfed by the wakif.

Hence, the impugned order is unsustainable.

7. Heard learned counsel for the parties, perused the documents and

considered on the submissions.

8. By impugned order dated 15-12-2009 learned Wakf Tribunal has

allowed the prayer of the applicant/petitioner and set aside the order dated 23-

05-1998 passed by the Wakf Board. Therefore, the order of Wakf Board dated

23-05-1998 is no longer existing. The challenge before this Court is mainly to

the finding regarding the Wakfnama dated 30-03-1955 which has been held

valid by the learned Tribunal. The question present before this Court is whether

the validity of Wakfnama can be challenged before the Tribunal.

9. Section 6 of the Wakf Act provides regarding disputes which can be

determined by a Tribunal. Provision of Section 6(1) of the Act, 1995 is as

follows:-

"6. Disputes regarding wakfs.--(1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final:

Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs.

Explanation. - For the purposes of this section and section 7, the expression "any person interested therein", shall, in relation to any property specified as wakf property in the list of wakfs published after the commencement of this Act, shall include also every person who, though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under section 4."

10. The provision above mentioned grants a limited jurisdiction to the

Tribunal to determine whether the property in dispute is a wakf property or not.

The question regarding creation of wakf by wakfnama is not included in this

provision. Section 7 has to be read with Section 6 of the Act, 1995 as it

provides power of Tribunal to determine the dispute regarding wakfs and the

question which can be determined is limited to the extent as to whether a

property is a wakf property or not. This provision also does speak of execution

of wakfnama and for giving challenge to the wakfnama.

Section 83(1) of the Act, 1995 provides as follows:-

83. Constitution of Tribunals, etc. - (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals.

The provision abovementioned specified the dispute which can be

decided by a Tribunal which can be related to wakf or wakf property, eviction of

tenant or determination of right of lessor and the lessee of such property,

The dispute regarding wakf is a question to be decided in this petition as

to what kind of dispute can be raised by a person interested and whether it

includes the question of creation of a wakf.

11. In the case of Board of Wakf, West Bengal Vs. Anis Fatma Begum &

Anr., (2010) 14 SCC 588, Hon'ble the Supreme Court held in para 10 that:-

"10. Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a wakf or wakf property. The words "any dispute, question or other matters relating to a wakf or wakf property" are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a wakf or wakf property can be decided by the Wakf Tribunal. The word "Wakf" has been defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is found to be a wakf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal."

12. Now the main question for consideration is this whether the validity of

execution of a Wakfnama on the ground of competence of the wakif, on the

ground of qualification of the property wakfed and on the ground of legal

consequence can be challenged under Section 83 of the Act, 1994.

13. Although the Section 83 of the Act, 1995 makes it appear that the

jurisdiction of Tribunal is wide scope, by stating that any dispute, question or

other matter relating to a wakf or wakf property, eviction of a tenant or

determination of rights and obligations of the lessor and the lessee of such

property, under this Act and define the local limits and jurisdiction of such

Tribunals. But it does not mention anything about the question to be raised

regarding creation of wakf. Further, Section 6 of the Act, 1995 also specifies the

disputes which can be raised firstly whether a property is a wakf property or

not, and Secondly whether is a Shia Wakf or Sunni Wakf, there again is nothing

mentioned by which any party can claim his own title on the basis of the

invalidity of Wakfnama.

In the case of Board of Wakf, West Bengal(supra), although it is held

that the dispute as mentioned in the Act, 1995 has a very connotation, but the

same has been expressed with respect to a wakf property and same has been

expressed in different context and not with respect to any such plaint that have

been made by the petitioner in this case.

14. The purpose of the enactment Wakf Act, 1995 has to be looked into to

see whether any such question can be raised as dispute before the Wakf

Tribunal under Section 83 of the Act, 1995. The very opening words of the Act,

1995 are as follows:

" an act to provide for better administration of Aukaf and for matters connected therewith on incidental thereto."

15. The purpose of enactment is very clear and limited for the administration

and management of the wakf property, and therefore, the questions or disputes

which can be raised must be of similar nature which have been defined in

Section 6 of the Act and also mentioned in Section 83 of the Act, 1995. Very

clearly the dispute that has been raised by the petitioner in this case before the

learned Tribunal does not appear to be covered under the definition of dispute

in Act 1995.

16. Petitioner had after making pleadings in the petition before the Wakf

Tribunal prayed for two reliefs, firstly that the impugned order dated 23.5.1998

passed by the Wakf Board registering the wakf on the basis of wakfnama dated

30.3.1955 and appointing respondent No.2 as "Mutawalli" and Secondly

seeking declaration, that the wakfnama dated 30.3.1955 is void ab initio. The

relief of declaration that the wakfnama is void ab initio cannot be granted by a

Wakf Tribunal, as a Wakf Tribunal is not a Civil Court and such a relief can be

claimed only under the provisions of Specific Relief Act in a regular Civil Court.

Although the Section 83(5) of the Act, 1995 provides, that the Tribunal shall be

deemed to be a civil Court but the questions that can be determined by the

Tribunal are limited as discussed hereinabove, therefore, the relief of the

declaration as claimed in the petition before the Wakf Tribunal is not a dispute

within the definition of dispute under the Act 1995.

17. The order of Wakf Board passed under Section 40 of the Act, 1995, was

subject to challenge before the learned Tribunal.

18. The learned Tribunal has framed issue No.8A as to whether the Wakf

Board before registering the claimed property has not followed lawful

procedure laid down under Section 40 of the Act, 1995 and answer given to the

same is in affirmative. The learned tribunal has observed in the impugned order

that the objection raised by Syed Afzal Ahmed Rizvi was not decided by the

Wakf Board. The title over that the wakf property was not inquired, no inquiry

was made with respect to the beneficiaries of the Wakf Al-al aulad.

19. The learned Tribunal has also held on the issue No.7, which was

regarding whether the Wakf Board has made any inquiry with respect to the

identification, title and possession of the claimed property and it was answered

in negative, that is to show that no inquiry was conducted with respect to the

title, identification and possession of the property claimed to be wakfed.

20. Extracts of Wakfnama dated 30.03.1955 are these, that the Late Syed

Vakil Ahmed Rizvi has dedicated all his property as wakf-alal-aulad. It is

mentioned that so far he remains alive he shall be the Mutawalli and after his

demise his nephew Syed Raza Habib Rizvi shall be a Mutawalli. It is also

mentioned that his niece Moazzama Khatun @ Aiya and niece Syed Afzal

Ahmed Rizvi shall be Nayab Mutawalli, who shall take care and manage the

wakf property. It is further mentioned, that after the demise of the Mutawalli and

Nayab Mutawalli, the elder son of such Mutawalli or Nayab Mutawalli or in case

there is no son then his younger brother or elder son of younger brother shall

according to the descendence be the Mutawalli and Nayab Mutawalli, who

themselves and family shall be the beneficiaries from the income and

improvement of the wakf property, which shall be equally divided between the

Mutawalli and Nayab Mutawallies. The wakif has also made a statement for

some donations to be given to the Mosques and Madarsas.

21. Wakf-alal-aulad is a private wakf which can be lawfully created by a

Muslim in favor of his family members and descendents. The Mussalman Wakf

Validating Act, 1913 gives validity to such wakf. Section 4 of the Act, 1913

provides that "no such wakf shall be deemed to be invalid merely because the

benefit reserved therein for the poor or other religious, pious or charitable

purpose of a permanent nature is postponed until after the extinction of the

family, children or descendents of the person creating the wakf".

22. The intention of the Wakif i.e. Syed Vakil Ahmed Rizvi is very clear from

the Wakfnama dated 30.03.1955 that this wakf was created by him for the

benefit of his nephew and niece and there descendents with clear instruction

for appointing his nephew and niece and their descendents as Mutawalli and

Nayab Mutawalli in all future times.

23. Section 3(a) of the Act, 1995 defines beneficiary which means a person

or object for whose benefit a wakf is created and includes religious, pious and

charitable objects and any other objects of public utility sanctioned by the

Muslim law; The petitioner has challenged the appointment of respondent No.2

as the Mutawalli of the Wakf-Alal-aulad on the ground that respondent No.2 is

not the member of the family of the petitioners and also that respondent No.2

has renounced Islam, on which point, no issue was framed and decided by the

learned Tribunal. However as the order of Wakf Board dated 23.5.1998 has

been set aside, therefore, it can be deemed that the appointment of respondent

No.2 as Mutawalli is also set aside.

24. After giving consideration on the ground raised in this civil revision the

conclusion is drawn that the learned Tribunal had no authority and jurisdiction

to examine the petition to declare the wakfnama dated 30.03.1955 null and

void, however, the scope of examining the petition on the ground of challenge

given to the registration of the wakf-alal-aulad, was maintainable.

25. After the learned Tribunal had drawn conclusion and given finding that

the Wakf Board has not made any inquiry with respect to the identification, title

and possession of the property wakfed by Syed Vakil Ahmed Rizvi and that the

Wakf Board has failed to proceed in accordance with law under Section 40 of

the Act, 1995, the proper course would have been to remand the case to the

Wakf Board, that is respondent No.1, to take-up the proceeding in accordance

with Section 40 of the Act, 1995 and determine the questions regarding the

identity, title and possession over the wakf property by conducting an inquiry as

is mentioned in Section 40(1) of the Act, 1995. It also appears, that the

intention of the wakif for appointing the members of his family that is his

nephew, niece and their descendents was required to be taken into

consideration and on that basis the qualification of respondent No.2 was also

subject to inquiry regarding which the objection was raised by the petitioner in

his petition before the learned Tribunal, on which no issue has been framed

and decided by the Tribunal. However, this question has to be firstly decided

regarding which Section 63 of the Act, 1995 have empowered the Wakf Board

to appoint Mutawalli in specific circumstances which was also required to be

examined before making appointment of the respondent No.2 as Mutawalli.

The operative part of the order although has set aside the order of the Wakf

Board dated 23.5.1998, but there is no order made on specific terms regarding

making inquiry for appointment of Mutawalli and the other part of which order is

impugned is regarding the direction of registering 1/3 of the property as wakf

property.

26. It is clear defined in Section 3(r)(iii) of the Act,1995 as to what shall be

wakf-alal-aulad which is as follows:-

"(iii) a wakf-alal-aulad to the extent to which the property is dedicated

for any purpose recognised by Muslim law as pious, religious or

charitable, and "wakif" means any person making such dedication;"

27. It is according to the rules of Shariya that a wakf cannot exceed of 1/3 of

estate of wakif. The applicability of this rule of Shariya on the wakf-alal-aulad

has not been discussed and decided specifically either by the Board or by the

Tribunal, therefore, this question also needs reconsideration, hence, on the

basis of these observations made hereinbefore and the conclusion drawn, the

impugned orders so far it relates to setting aside of the order of Board dated

23.5.1998 is upheld. The order of the Tribunal directing to register the 1/3 of the

property of the wakif i.e. Syed Vakil Ahmed Rizvi as wakfed property, is set

aside. The other direction in the impugned order for the Wakf Board to proceed

to make an inquiry under Section 40 of the Wakf Act, 1995 is also upheld. It is

further directed that the learned Wakf Board shall make an inquiry in

accordance with Section 40 of the Act, 1995 for the purpose of identifying the