Mr Hasneyn Mirza vs The Karnataka State Board Of Wakf
2022 Latest Caselaw 5610 Kant

                            1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 29TH DAY OF MARCH, 2022

                       BEFORE

          THE HON'BLE MR. JUSTICE R.NATARAJ

        CIVIL REVISION PETITION NO.145 OF 2011

BETWEEN:

1.     MR. HASNEYN MIRZA
       AGED ABOUT 51 YEARS.

2.     MR. ZEYN MIRZA
       AGED ABOUT 48 YEARS.

       BOTH SONS OF
       LATE MAJOR MOHAMMED MIRZA
       NO.14, FLAT NO. G-B,
       RESIDENCY PAVILION,
       ALEXANDRIA STREET,
       RICHMOND TOWN,
       BANGALORE-560025.
                                       ...PETITIONERS

(BY SRI. RAHUL CARIYAPPA, ADVOCATE)

AND:

1.     THE KARNATAKA STATE BOARD OF WAKF
       NO.6, CUNNINGHAM ROAD,
       'DARUL AWAKAF'
       BANGALORE-560052,
       REPRESENTED BY ITS
       CHIEF EXECUTIVE OFFICER.

2.     AGA ALI ASKAR WAKF
                          2




     UNDER THE MANAGEMENT OF
     KARNATAKA STATE BOARD OF WAKF,
     NO. 6, CUNNINGHAM ROAD,
     DARUL AWAKAF,
     BANGALORE-560052,
     REPRESENTED BY ITS
     CHIEF EXECUTIVE OFFICER .

3.   MR. MUSTAQ HUSSAIN BADAMI
     AGED ABOUT 60 YEARS,
     SON OF AKBER ALI BADAMI,
     EAGLE STREET, LANGFORD TOWN,
     BANGALORE-560025.

4.   MRS. GULNAZ BEGUM
     DAUGHTER OF ABID ALI ALIAS BASHA JAN
     NO.14, HUSSAIN NAGAR, 2ND STREET,
     SARDARJUNG GARDEN, ROYAPETTAH
     CHENNAI-14.

5.   MR. MIRZA HABIB AGA
     SON OF M.F. AGA
     AGED ABOUT YEARS,
     NO.17, ARABLANE 'B' STREET,
     RICHMOND TOWN,
     BANGALORE-560025

6.   MR. ZIA KHALEELI
     S/O LATE MOHAMMED RAFI KHALEELI
     AGED ABOUT YEARS
     NO.2, LAUREL LANE,
     RICHMOND TOWN
     BANGALORE-560025

7.   MR. MOHAMMED ALI SHIRAZI
     SON OF AGA ABDUL MAJEED
     AGED ABOUT YEARS
     NO. 9, MYRTAL LANE,
     ROSEWOOD APARTMENTS,
                         3




     RICHMOND TOWN,
     BANGALORE-560025

8.   ANJUMAN-E-IMAMIA
     NO. 5, HOSUR ROAD,
     MASJID-E-ASKARI
     RICHMOND TOWN,
     BANGALORE-560025
     REPRESENTED BY ITS PRESIDENT

9.   MR. MOHAMMED ABBAS SALEH SHIRAZI
     SON OF SALEH SHIRAZI
     SALEH ARCADE (GROUND FLOOR),
     NO.3, LEONARD LANE,
     RICHMOND TOWN,
     BANGALORE-560025
                                  ...RESPONDENTS

(BY SMT. S.R.ANURADHA, ADVOCATE FOR RESPONDENT
NO.1;
SRI. P.S.MALIPATIL, ADVOCATE FOR RESPONDENT NO.2;
NOTICE ON RESPONDENT NOS.3 TO 9 SERVED AND
UNREPRESENTED)

     THIS CRP IS FILED UNDER SECTION 83(9) WAKF
ACT, READ WITH SECTION 115 OF CPC., AGAINST THE
ORDERS      DATED     11.03.2011   PASSED     IN
APPEAL.NO.04/2006 ON THE FILE OF THE PRESIDING
OFFICER KARNATAKA WAKF TRIBUNAL BANGALORE
DIVISION, BANGALORE, DISMISSING THE APPEAL FILED
UNDER SECTION 69(3) OF WAKF ACT.

     THIS CRP HAVING BEEN HEARD AND RESERVED ON
14.12.2021 COMING ON FOR 'PRONOUNCEMENT OF
ORDERS'   THIS DAY, THE COURT       PASSED  THE
FOLLOWING:
                                4




                             ORDER

This Revision Petition under Section 83 (9) of the

Waqf Act, 1995 (henceforth referred as 'the Act' for short)

is filed, calling in question the correctness of the order

dated 11.03.2011 passed by the Karnataka Wakf Tribunal,

Bangalore Division, Bangalore (henceforth referred to as

'Tribunal' for short) in Appeal No.4 of 2006, by which, it

rejected a challenge to an order dated 02.08.1997 passed

by the respondent No.1 in L.C.C. No.5/86, modifying the

Scheme of Management of respondent No.2.

2. The petitioners contend that late Aga Ali Asker

had created a Family Trust in respect of the property

known as 'Bakharabad', old No.9, New No.25 Sankey road,

Bengaluru in terms of his Will dated 29.10.1880 and codicil

dated 23.06.1887. He had appointed his four sons to be

the executors of the Will and had devised that the rents

and profits of the property be applied from time to time in

performance of works of benevolence and charity and for

religious purposes, in the absolute discretion and

judgment of the executors. The petitioners claimed that

no Trust was created in respect of the immovable property

of 'Bakharabad' and it was not bequeathed in the name of

God or for any religious or charitable purposes.

3. After the demise of Aga Ali Asker Shirazi, his

four sons named in the Will continued to be the Trustees

during their life time. His sons, namely, Mohammed

Cassim Mushar Aga Jan died in the year 1909, Aga Abdulla

passed away in the year 1926 and Aga Abbas Ali died in

the year 1928. The eldest son Mr. Aga Abdul Hussain

nominated and appointed his younger brother Mr. Aga

Mohammed Nabi as a Trustee to manage and administer

the property. He continued to be the sole Trustee till the

year 1935 when he appointed his nephew Mr. Mirza Ismail

(son of Aga Mohammed Cassim) as Trustee who managed

and administered the property till 1952. Thereafter the

second son of Aga Mohammed Cassim managed the

property. It is alleged that the respondent No.1

erroneously listed the property in the list of Wakfs by a

notification dated 07.06.1965 treating it as "Aga Ali Asker

Wakf", and passed an order dated 17.02.1963 appointing

five persons from amongst the descendents of the testator

to manage and administer the property for a period of two

years. The term was extended from time to time.

4. Later, by an order dated 16.11.1969 passed in

L.C.C. No.5/1967, the respondent No.1 framed a Scheme

of Management authorising the family members of the

testator to manage and administer the properties

belonging to Aga Ali Asker Shirazi. The petitioners claimed

that the said Scheme of management was in conformity

and in consonance with the terms of the Will, inasmuch as

it provided for management of the properties by the

descendants of the testator.

5. Later, by an order dated 26.01.1978, the

respondent No.1 assumed direct management of

respondent No.2 and appointed a Commissioner. The

respondent No.1 by a Notification dated 02.05.1985

proposed to amend the Scheme of Management approved

by it in LCC No.5/1967. The petitioners filed their

objections to the proposed amendment. The issue was

therefore referred to the Law Committee and was

registered as LCC No.5/1986. The Law Committee framed

the following points for consideration :

i. Whether the Aga Ali Asker Wakf is a Public Shia Wakf or a private family Wakf of the Wakif? ii. Whether the Wakf Board is competent to amend the scheme of management dated 16.11.1969?

iii. Whether the members of the family of Wakif have a vested right to manage the Wakf by way of custom or usage?

iv. Whether the relinquishment of their rights by most of the descendants of Aga Taqui Shirazi is legAli valid and alter the circumstances necessitating the amendment of scheme of management?

v. Whether there is justification for reducing the reservation in favour of the descendants of Wakif from 100% to 20%?

vi. Does the interest of the Wakf requires the existing scheme of management be amended?

vii. Are the amendments proposed in Ex.P22 gazetted notification justified and permissible? If not what are the amendments permissible?

6. The Law Committee by order dated 02.08.1997

modified the Scheme of Management, consequent to

which, the Committee of Mutawallis consisted of five adult

male members but the number of Mutawallis could be

increased upto seven. The Mutawallis were to be

nominated from amongst the descendants of Late Aga Ali

Asker regardless whether the descendants were through

the male or female lineage. However, if the number of

Mutawalli is increased to seven, the two additional

Members could be nominated from amongst Shia Muslims

of the Anjuman-E-Imamia Persuasion, but the descendants

of the Wakif would be preferred over others and in case a

sufficient number of suitable persons were not available

from among the descendants of the Wakif, the respondent

No.1 could appoint any other Shia Imamia Muslim as

member of the Committee of the Mutawallis. This order

was challenged before the Wakf Tribunal under Section

69(3) of the Act on the ground that the respondent No.1

had no power to amend the Scheme framed on

16.11.1969. They also contended that Late Aga Ali Asker

Shirazi had created a private family Trust by virtue of his

Will and certainly did not have any desire to constitute it

into a Wakf. They also contended that they had a vested

right to manage the Wakf by usage and custom.

7. The respondent No.1 did not file any objections

before the Tribunal. The Tribunal, therefore, set down the

case for evidence of parties, neither the petitioners nor the

respondents led any oral evidence.

8. The respondent No.1 addressed arguments and

contended that those who had filed their objections to the

scheme of management were, in fact, people who had

executed release deeds in favour of respondent No.1 and

therefore, they were not eligible to contest the amendment

of the Scheme, on the ground that the testator had not

created a Wakf. They also contended that the petitioners

had not challenged the notification dated 07.06.1965 in

the manner provided under Section 6(1) of the Wakf Act,

1954 (henceforth referred to as 'Act of 1954' for short)

within a period of one year. They contended that in the

year 1967, one of the descendants of the Wakif

Dr.Mohamed Aga filed a petition before it, against

Dr.M.H.Naveen and others who were allegedly

mismanaging the affairs of the institution and prayed for

framing Scheme of Management as provided under Section

15(2)(d) of the Act of 1954. This was placed before the

Law Committee of the Board which was registered as

L.C.C. No.5/1967. After due enquiry, a Scheme of

Management was prepared pursuant to the order dated

16.11.1969. As per that Scheme of Management, the

Committee comprised of five members, who were the

descendants of the Wakif and the respondent No.1 was

empowered to appoint two more members. It claimed that

the income of the property was meagre and therefore,

some of the heirs of Aga Taqui Shirazi had relinquished

their claims over the Wakf and its income after receiving

substantial amounts by way of consolidated payment for

their share. The respondent No.1, therefore, claimed that

upon such relinquishment, the Shia Community of

Bangalore City became the beneficiaries of the Wakf, and

therefore, the respondent No.1 felt it unjustified to retain

only the descendants of the Wakif on the Committee of the

Mutawallis. Therefore, it notified an amendment on

02.05.1985 inviting objections. It contended that some of

the objectors did not appear and did not lead any

evidence, while some of the objectors had already

executed relinquishment deeds.

9. Based on this, the Tribunal framed the

following points for consideration :

i. Whether the impugned order dated 02.08.1997 passed by the Respondent No.1 in L.C.C. No.5/1986 modifying the Scheme of Management of respondent No.2 is sustainable in law? ii. What order?

10. The Tribunal held that under Section 32(2)(d)

of the Act of 1995, the respondent No.1 had power to

settle a Scheme of Management for Wakf and that

accordingly a Scheme was framed as per order dated

16.11.1969 which was not challenged by any person

including the descendants of the Wakif. It held that under

Section 69(4) of the Act, the Board had the power to

modify and cancel the Scheme after hearing all persons

interested in the Wakf. The Tribunal held that after the

majority of the sharers of Aga Taqui Shirazi had

relinquished their interest, the respondent No.1 was of the

opinion that the Shia community of Muslims of Bangalore

were the beneficiaries of the Wakf and therefore, had

modified the Scheme of Management. The Tribunal held

that upon a reading of the Will of the Wakif and the codicil,

it unequivocally transferred the ownership of 'Bakharabad'

in favour of its executors, in perpetuity for the clearly

specified purpose of constructing a mosque for worship

and therefore, it held that modification of the committee of

management was based on the records and taking into

account, the interest of Wakf and all major beneficiaries of

Shia community of Bangalore. It, therefore, held that the

respondent No.1 was empowered to amend the Scheme of

Management and consequently the order passed by the

respondent No.1 dated 02.08.1997 in L.C.C. No.5/86 was

proper and correct. Consequently, the Tribunal dismissed

the appeal.

11. Being aggrieved by the aforesaid order, the

present Revision Petition is filed.

12. The learned counsel appearing for the

petitioner submitted that the Law Committee constituted

by the respondent No.1 did not possess the power or

jurisdiction to decide the nature and character of the Wakf.

He claimed that it is the Tribunal alone which is competent

to determine the nature and character of the Wakf. The

learned counsel contended that the testator did not create

any Wakf in respect of the immovable property of

''Bakharabad' but only devised the way in which the

income and proceeds from the property should be used

and applied. He contended that as per the Will the

immovable property of ''Bakharabad' devolved upon the

sons of the Wakif. The learned counsel invited the

attention of the Court to the Notification dated 07.06.1965

and contended that even as per the understanding of

respondent No.1, it was only the rents and profits arising

out of property which was notified and not the immovable

property itself. The learned counsel contended that the

testator intended to create a Family Trust and not a Wakf.

In this regard he relied upon the judgment of the Hon'ble

Supreme Court in Nawab Zain Yar Jung (since

deceased) and Others vs. Director Of Endowments

And Another reported in AIR 1963 SC 985. He also

relied upon the judgment in the case of Radhakanta Deb

And Another vs. The Commissioner Of Hindu

Religious Endowments, Orissa reported in AIR 1981

SC 798 as well as the judgment in the case of

Maharashtra State Board Of Wakfs vs. Yusuf Bhai

Chawala And Others reported in (2012)6 SCC 328. He

submitted that the testator was entitled to bequeath his

properties in the manner felt appropriate by him and

therefore, mere execution of the Will itself would not

create a Wakf . In this regard he relied upon the judgment

in the case of Mst. Peeran w/o. Abdul Razzaq vs. Hafiz

Mohammad Ishaq and Others reported in AIR 1966

Allahabad 201. He submitted that when the immovable

property of 'Bakharabad' is not the subject matter of Wakf,

the order framing any Scheme of Management is a nullity,

which can be set at naught in collateral proceedings. In

this regard he relied upon the judgment of the Apex Court

in the case of Isabella Johnson (Smt.) vs. M.A.Susai

(dead) by Lrs. reported in (1991)1 SCC 494; Kiran

Singh and Others vs. Chaman Paswan and Others

reported in AIR 1954 SC 340; and Hindustan Zinc

Limited vs. Ajmer Vidyut Vitran Nigam Limited in

Civil Appeal No.9212 of 2019. He lastly invited the

attention of the Court to a judgment in the case of

Abdullamiyan Abdulrehman vs. Government of

Bombay reported in AIR (29) 1942 Bombay 257, in

support of his contention that where an Authority which

purports to pass an order is acting without jurisdiction.

The purported order is a mere nullity. It is not necessary

for anybody, who objects to that order, to apply to set it

aside. He can rely on its invalidity when it is set up

against him, although he has not taken steps to set it

aside.

13. He contended that Section 69 of the Act, dealt

with the power of the Board to frame scheme for

administration of the Wakf and not for the management of

the properties. He submitted that it is only under Section

32(2)(d) of the Act that a Scheme of Management for a

Wakf could be settled. The learned counsel submitted that

the Scheme of Management was already settled on

16.11.1969 and what is now sought to be done under

Section 69(4) of the Act is to frame a Scheme of

administration. The learned counsel contended that in the

garb of exercise of power under Section 69(4) of the Act,

the respondent No.1 had attempted to tamper with the

Scheme of Management.

14. Per contra, the learned counsel for the

respondent No.1 submitted that the petitioners were aware

of the notification dated 07.06.1965 notifying the Wakf of

Aga Ali Asker Shirazi, and therefore, must have contested

the same within the time provided under Section 6 of the

Act of 1954. She contended that the first Scheme of

management was framed on 16.11.1969 and none of the

descendants of Aga Ali Asker Shirazi questioned the said

Scheme of Management. She contended that under

Section 43(A) of the Act of 1954, the Wakf came under the

direct management of respondent No.1 which was also not

questioned. She contended that some of the descendants

of Aga Ali Asker Shirazi had filed W.P. No.18767/1985

challenging the order dated 14.11.1985 constituting a

committee of Mutawallis under the Scheme framed on

16.11.1969 in L.C.C. No.5/1967. The writ petition was

disposed off as having become infructuous since the term

of the Committee of Mutawallis had expired. The learned

counsel invited the attention of the Court to the interim

order granted in W.P. 18767/1985, wherein the

respondent No.1 was permitted to manage the property of

'Bakharabad' which it was doing from 26.01.1978. The

learned counsel relied upon the documents furnished by

respondent No.2, more particularly a deed of release dated

03.10.1972 executed by Major Mohammed Mirza in favour

of respondent No.2 releasing all his right, title and interest

in respect of the property. The learned counsel submitted

that Mr. Major Mohammed Mirza was a donee of the

interest of his maternal aunt Shah Biwi, the daughter and

heir of Lt. Aga Mohamed Taqui.

15. The learned counsel submitted that the

testator had by his codicil dated 23.06.1887 bequeathed

1/4th of the rents and profits from 'Bakharabad' property to

his nephew and son-in-law Aga Mohammed Taqui. She

claimed that the entire interest in the 'Bakharabad'

property stood vested in the Wakf as none of the other

descendants of the testator had challenged the declaration

of the property as a Wakf property and had not challenged

the Scheme of Management and the subsequent

assumption of direct Management by respondent No.1.

Learned counsel submitted that the petitioners are not

aware of their own rights which is evident from para 8 of

the appeal filed before the Tribunal. Therefore, they

cannot claim for any declaration that the descendants of

the testator alone are entitled to manage and administer

the respondent No.2 and his properties. The learned

counsel also contended that the petitioner did not plead

before the Law Committee that the property was not a

Wakf and he did not attempt to challenge the notification

dated 07.06.1965. The learned counsel invited the

attention of the Court to the order passed by the Tribunal

and contended that the procedure as contemplated under

Section 69 of the Act was complied with and therefore,

there was no procedural error in bringing about the

amendment to the Scheme of management.

16. The learned counsel submitted that once the

property was notified as a Wakf, it always remained as

Wakf. In this regard she relied upon a judgment in the

case of Sayyed Ali and Others vs. A.P. Wakf Board,

Hyderabad and Others reported in (1998) 2 SCC 642.

She also relied upon the judgment of the Hon'ble Supreme

Court in Aliyathammuda Beethathebiyyappura

Pookoya and others vs. Pattakal Cheriyakoya and

Others reported in (2019)16 SCC 1 and contended that

the High Court in its revisional jurisdiction should not

interfere with findings of fact recorded by the courts. She

also contended that the burden of proof to establish a

custom was higher in respect of a public Wakf than in case

of a family Trust. She invited the attention of this Court to

the order passed in W.P. No.7951/1980 where the

challenge was to an order dated 02.02.1980 passed by

respondent No.1, by which the respondent No.1 handed

over the management of the Wakf to Anjuman-e-Imamia,

Bengaluru which was the Society constituted for the

upliftment of shia Muslims of Bangalore. The learned

counsel submitted that this writ petition was filed by the

descendants of the Wakif who did not deem it appropriate

to challenge the notification declaring the property as a

Wakf. She, therefore, contended that the petitioners

cannot now dispute or challenge the notification of the

property as a Wakf.

17. At this stage, the learned counsel for the

petitioner submitted that a suit in O.S. No.6/2017 is filed

before the Tribunal for various reliefs including declaration

that Late Aga Ali Asker Shirazi had constituted a family

trust in terms of the will dated 29.10.1880 and for other

reliefs.

18. I have considered the submissions made by

learned counsel for the parties and I have also perused the

records of the Tribunal. I have also perused the

proceedings of the Law Committee as well as the

impugned order passed by the Tribunal.

19. The Will dated 29.10.1880 executed by Aga Ali

Asker Shirazi discloses that he had bequeathed the

following in the following manner :

"FIRSTLY, I give devise and bequeath unto my executor hereinafter named all that my messuage tenement bungalow or house called and known as BAKHARABAD situated and being No.6(six) on the Bellary Road, Bangalore together with the out building yards gardens stabling and all appurtenances thereto belonging to upon and for

the uses trusts intents and purposes and with and subject to powers previous and limitations hereinafter mentioned and expressed of and concerning the same that is to say. In trust that the rents and the profits of the said house shall be applied in the first instants to defray the expenses of my funeral and burial and then in the trust in the next place that the rents and profits of the said house "BAKHARABAD" be applied to the extent of `800/- only and no more to the erection and building of a mosque and then in the last place that the rents and profits of the said house be applied from time to time in performance of works of benevolence and charity and also that a portion of the said rents and profits be expended in the Mohorrum Azadaree of Hussain which works of benevolence and charity I leave entirely to the discretion and judgment of my executors."

The testator executed a Codicil on 23.6.1887, the

relevant portion of which reads as follows :

" This second Codicil to the Last Will and Testament of Mr. Aga Ali Asker of Bangalore which bears the 9th day of October 1880. Whereas I am desirous of modifying as hereinafter mentioned by the Trust made by the first paragraph of my said

Will in respect of messuages tenement bungalow or house are known as Bakharabad situated and being No.6 (six) on the Bellary Road, Bangalore together with the out building yards gardens stabling and all appurtenances thereto belonging to upon and for the uses trusts intents and purposes and with and subject to powers previous and limitations hereinafter mentioned and expressed of and concerning the same that is to say. In trust that the rents and the profits of the said house shall be applied in the first instance to defray the expenses of my funeral and burial and then in the trust in the next place that the rents and profits of the said house and premises be applied as follows, namely one fourth of the same as they occurs to be paid to my nephew and son-in-law, Aga Mohammed Taki or his heirs executors, administrators and assigns for his or their own absolute use and benefit and the remaining three fourth thereof be applied to the extent of Rs.800/- (Rupees Eight Hundred Only) and no more to the erection and building of a mosque and in performance from time to time of works of benevolence and charity and also that a portion of said three fourth of the said rents and profits be expended in the Moharrum Azadaree of Hussain which works of benevolence and charity I leave entirely to the discretion and judgment of my executor" and in all other respects I do confirm my

aforesaid Will and Codicil dated the 24th day of October 1885.

In witness whereof I have hereunder set my hands this 22nd day of June 1887."

20. A reading of the Will and codicil undoubtedly

indicate that the ''Bakharabad' property was one of the

many properties that were owned by the testator in

Bangalore city, which he devised to his children. Since

the Will discloses that the testator was residing at Hosur

road, Shoolay, Bangalore, it can be presumed that the

testator was not residing in the ''Bakharabad' property but

the same was generating rent/ profit. In so far as the

''Bakharabad' property is concerned, he devised and

bequeathed to his four eldest sons and ordained that the

rents and profits of the ''Bakharabad' house be applied in

the first instance to defray the expenses of his funeral and

burial and then in Trust to apply Rs.800/- for the

construction of a Mosque and the remaining for the

performance of works of benevolence and charity, a

portion of which was to be expended on Moharrum

Azadaree of Hussain. He conferred absolute discretion

upon his executors to decided as to what were the works

of benevolence and charity. He appointed his four sons as

the executors of the Will.

21. The testator executed a codicil to the Will

dated 29.10.1880 by which he rectified it and devised that

the rents and profits of ''Bakharabad' property and

premises be applied in the first instance to defray the

expenses of his funeral and burial and then in Trust to pay

1/4th of the rent and profits to his nephew Aga Mohammed

Taqui or his heirs and out of the remaining 3/4th to apply

Rs.800/- for the construction of a Mosque and for

performance of works of benevolence and charity and a

portion of the same be expended in Moharrum Azadaree of

Hussain.

22. By virtue of the codicil, the testator made a

provision to pay a portion of the rents and profits from

''Bakharabad' property to his nephew Aga Mohammed

Taqui or his heirs. Mr.Aga Ali Asker Shirazi expired in the

year 1889 and his executors managed the ''Bakharabad'

property from then on. Since the 1/4th of the rent was to

be paid to Aga Mohammad Taqui or his heirs, this

condition had to be complied perpetually.

23. The respondent No.1 issued a notification

dated 07.06.1965 under Section 5 of the Act of 1954

notifying the Aga Ali Asker Wakf in respect of the property

bearing No.9 (25) Sankey road, High Grounds, premises

known as 'Bakharabad' or Bed Ford house. Column No. 3

of the notification dealt with the "nature, class and

objects of each Wakf". In so far as 'Bakharabad'

property is concerned against column No.3 it was stated as

follows :

"1/4th of the total income to be paid to the nephew of Aga Ali Asker, Aga Mohammed Taqui and his heirs and 3/4th performance from time to time of works of benevolence and charity and also that a portion of the said rents and profit to be expended in Moharram Azadari of Hussain."

24. The column No.4 of the notification dealt with,

"name, address and occupation of Mutawalli" and

against this, the names of "(i) Dr.M.H. Navin (ii)

Mr.Humayun Mirza (iii) Mr.M.M.Hussain (iv)Mr. A.A. Mazid,

(v) Mr. Mahmood Aga" were shown. It is therefore,

evident that until the notification dated 07.06.1965 the

''Bakharabad' property was administered by the

descendants of Aga Ali Asker Shirazi. After the

notification, a complaint was lodged by Dr.Mohammed Aga

alleging mis-management by the Mutawallis and sought for

settlement of a Scheme. The five Mutawallis whose names

appeared in the Notification dated 07.06.1965 opposed the

settlement of a Scheme. Later, all the parties agreed that

a Scheme of Management may be framed and both of

them submitted proposals for the Scheme. This was

placed before the Law Committee of then Mysore State

Board of Wakfs, Bangalore in L.C.C. No.5/1967. The Law

Committee heard the counsel for both the parties and held

as follows :

"We cannot accept the contention of the petitioner because the testator had not appointed any Mutawalli for Wakf. His four sons became the first Mutawallis by virtue of their office as executors. No arrangement was provided in the Will for further management of the Wakf and the first Mutawallis themselves have not settled any Scheeme of Management nor have they nominated their successors. Therefore, the Touliath is not restricted to the descendants of the executors of the Will nor is there any bar to the appointment of a stranger to the family."

The Law Committee framed the following Scheme of Management for Baqarabad Wakf :

1. The Management of the Baqarabad Wakf shall vest in a Committee of Mutavallies consisting of Five Adult male members, but the State Board of Wakfs may raise this number to 7 (seven) if it deems fit.

2. The Mutavallies shall be nominated by the State Board of Wakfs from among descendants of the Wakf, i.e., Late Aga Ali Asker whether they are descended through the male line or female line. But no person who has an interest adverse to the interest of the Wakf shall be so nominated.

3. The Committee of Mutavallies so nominated shall hold office for three years from the date of their nomination.

4. The State Board of Wakfs shall be component to expand the number of Mutavallies to seven as provided above and two additional members to be added, need not necessarily be from the descendants of the Wakf, but they shall be Shia Muslim of the Imamen Persasion but all things being equal descendants of the Wakif shall be preferred to others.

5. In case of casual vacancies in the Committee of Mutavallies the State Board of Wakfs shall fill up the vacancy by nomination and the member so nominated shall hold office for the remaining period of the terms of the Committee.

6. In case a sufficient number of suitable persons is not available for among the descendants of the Wakif the Board of Wakfs may appoint any other Shia Imamen Muslim as member of the Committee of Mutavallies.

7. The Committee of Muthavallies shall within a fortnight from their nomination meet and elect a President and Secretary from among themselves. It shall be the duty of the Secretary for the previous term to call this meeting, hold the elections and report the result of the elections to the Board of Wakfs.

8. The Chairman shall have over all supervisory powers and the Honorary Secretary shall be the Chief Executive Officer of the Wakf.

9. All cheques, diafts, instruments and documents shall be drawn under the joint signatures of the President and Secretary.

10. The Committee of Muthavallies shall frame detailed rules of business of the coubuct of business by the Committee of Mutavallies and allocation of duties and powers such rules shall come into force only after the approval of the Board of Wakfs.

11. It shall be the duty of the Mutavallies to discharge the duties laid upon by law and in particular to develop the sources and income of the Wakf, maintain and preserve it and give effect to the wishes of the Wakif impartially.

12. The committee of Muthavallies shall be subject to and give effect to all the instructions and directions so far been issued by the Board of Waks or may be give hereafter.

13. The parties are requested to submit to the Board a penol of ten names out of which the Board will select and nominate five persons to first Committee of Management."

25. It is noticed that Major Mohammed Mirza, the

father of petitioners herein was the donee of the interest of

his maternal aunt Shah Biwi, (the daughter and heir of late

Aga Mohammed Taqui). He executed a release deed on

03.10.1972 in favour of Mysore State Board of Wakf. He

declared in the release deed that he was one of the heirs

of Aga Mohammed Taqui having derived it in terms of the

Hiba dated 18.08.1954 executed by his maternal aunt

Shahbiwi (daughter of late Aga Mohammed Taqui). He

declared that in consideration of a receipt of a sum of

Rs.19,477.50ps. paid by the State Board of Wakfs, he and

his heirs relinquished all the right, title and interest in

perpetuity and undertook not to prefer any claim of any

description whatever against 'Bakharabad' or any other

property/properties was that owned by Aga Ali Asker Shia

(P) Wakf.

26. In the meanwhile, the Committee of Mutawallis

headed by Humayun Mirza had applied to the respondent

No.1 on 10.06.1970 to lease the 'Bakharabad' property.

The Wakf Board had unanimously resolved to accord

sanction to lease the 'Bakharabad' property to Sri

A.Gangaram of Monarch Corporation for a period of 30

years. The lease was published in Mysore Gazette on

20.10.1971. Later, before the expiry of 30 years, the term

was extended to 50 years which was approved by the Wakf

Board. The term was again extended to 90 years even

before the expiry of the period of 50 years and is

apparently in force upto the year 2063 and the monthly

rent in the year 2022 is Rs.7600-00. The Board of Wakfs

by resolution dated 3rd , 4th and 5th of June 1981 revoked

the lease and declared it as null and void. This was

challenged by the lessee in W.P. No.13379/1981. In the

meanwhile, the Board had already filed O.S. No.8041/1980

to declare that the lease deed is in favour of the lessee is

invalid. This Court, therefore, quashed the cancellation of

the lease and directed the Wakf Board to await the

outcome of suit in O.S. No.8041/1980. This order was

thereafter unsuccessfully challenged in W.A.No.2163/1990.

The way in which the property of the Wakf was handled

invited the attention of the government and a report in

that regard was submitted by the Backward Classes and

Minorities Welfare Committee.

27. The Wakf was administered by the Mutawallis

until 26.01.1978 when the respondent No.1 took over the

direct Management of the Wakf under Section 43(A) (1) of

the Wakf Act, 1954 for a period of one year or till the

Managing Committee was appointed, whichever was

earlier. Later in terms of an order dated 14.11.1985, a

Committee of Mutawallis was appointed by the respondent

No.1 for a period of three years. This was challenged by

the father of the petitioners (Major Mohammed Mirza) in

W.P. No.18767/1985. This Court stayed the operation of

the order dated 14.11.1985 and held that "this order does

not prevent the Wakf Board from managing the Wakf

property which it is stated to be managing from

26.01.1978". Later the writ petition became infructuous

as the three year term of the Committee of Mutawallis had

expired, and therefore, was disposed off as infructous.

28. The respondent No.1 proposed to amend the

Scheme of Management dated 16.11.1969 in L.C.C.

No.5/1967 since it claimed that upon the relinquishment of

the interest by the descendants of the Aga Taqui Shirazi,

the members of the Shia community of Bangalore became

the beneficiaries, and therefore, issued a Notification dated

02.05.1985 inviting objections and suggestions.

Mrs.Gulnaz Begum, Mr. Mohammed Abbas Saleh Shirazi ,

Major Mohammed Mirza, Mirza Habib Aga, Zia Khaleeli,

Mohamed Ali Shirazi filed objections. Therefore, the issue

was placed before the Law Committee which registered the

case as L.C.C. No.5/1986. The President of Anjuman-e-

Imamia who was one of the objectors who claimed that the

family of the Wakif should not be included in the

Committee of management as they had given away the

Wakf property on lease for 90 years to a Five Star hotel for

a meagre rent. He claimed that at least two nominees of

the Anjuman should be appointed as members of the

Committee. For the first time Mrs. Gulnaz Begum and

Zeyn Mirza claimed that late Aga Ali Asker did not create a

public Wakf but created a private family trust for the

benefit of his family and that all the descendants of Aga

Taqui Shirazi had not relinquished their rights and

therefore, the management of the property should remain

with the family members of Aga Ali Asker. Mr. Mohammed

Abbas Saleh Shirazi did not file any objections. Mr. Major

Mohammed Mirza and Mirza Habib Aga filed joint

objections contending that Aga Ali Asker created a Family

Trust and not a public Wakf and that it was for the benefit

of the family and not for the benefit of the Shia

community. They claimed that all the beneficiaries of the

Wakif had not relinquished their rights. They claimed that

from the time of Wakif till 1979, the property was

managed by the members of the family of Wakif and

therefore, it had become a custom to allow only the

descendants of the Wakif to manage the Wakf. Likewise,

about 78 persons supported the contentions of Mr. Major

Mohammed Mirza and Mirza Habib Aga.

29. The Commissioner of respondent No.1 was

examined as PW1. He marked Exs.P-7 to 20 which were

the certified copies of the relinquishment deeds executed

by the descendants of Aga Ali Asker Shirazi. None of the

objectors adduced any evidence.

30. The Committee framed the following points for

consideration :

i. Whether the Aga Ali Asker Wakf is a Public Shia Wakf or a private family Wakf of the Wakif? ii. Whether the Wakf Board is competent to amend the scheme of management dated 16.11.1969?

iii. Whether the members of the family of Wakif have a vested right to manage the Wakf by way of custom or usage?

iv. Whether the relinquishment of their rights by most of the descendants of Aga Taqui Shirazi is legAli valid and alter the circumstances necessitating the amendment of scheme of management?

v. Whether there is justification for reducing the reservation in favour of the descendants of Wakif from 100% to 20%?

vi. Does the interest of the Wakf requires the existing scheme of management be amended?

vii. Are the amendments proposed in Ex.P22 gazetted notification justified and permissible? If not what are the amendments permissible?

31. It held that the Will and the codicil read

together indicated an unequivocal transfer of the

ownership of 'Bakharabad' in favour of its executors in

perpetuity for the clearly specified purpose of erecting a

mosque for worship, which is a religious purpose and for

performing works of benevolence. Therefore, it held that

Aga Ali Asker Shirazi created a Wakf by his Will dated

29.10.1880. It held that no suit or other legal proceeding

was filed under any law particularly under Section 6(1) of

the Act of 1954, challenging the inclusion of 'Bakharabad'

as Wakf in the gazette notification dated 07.06.1965 and

therefore, the notification attained finality. The scheme of

management dated 16.11.1969 was accepted and acted

upon by all the descendants of Aga Ali Asker Shirazi for

more than 28 years and therefore, they were estopped

from claiming that the property in question was not

dedicated to the Wakf. The committee held that after the

execution of relinquishment deeds, the Wakf had become

100% public Wakf and therefore, the machinery of

management had to be brought in consonance with the

changed circumstances. It held that the descendants of

the Wakif were complacent and not co-operative and did

not take care of the best interest of the Wakf. It held that

there were only 5000 members of Shia community in

Bengaluru, while the descendants of Aga Ali Asker Shirazi

were 500 members and hence they constituted 10% of the

total population. Therefore, it held reserving one member

out of five to the descendants would be just and equitable.

Therefore, the committee held that the management of the

Wakf shall vest in a committee of Mutawallis consisting of

five adult male members of Shia community of Bengaluru

of the Imamen Persasion, all of whom should be

permanent residents of Bengaluru. The five members of

the committee would be nominated by respondent No.1, of

whom one member shall be amongst the descendants of

the Wakif. It also held that if there were no suitable

persons for appointment then it would be lawful for

respondent No.1 to appoint more than one member from

amongst the descendants of the wakif.

32. This was challenged by the petitioners before

the Tribunal on various grounds. It was contended that -

(i) the testament of the Wakif itself

indicated the scheme of management of the

property and therefore any other mode of

administration through anyone else was

unacceptable and was against the wish of the

testator;

(ii) that respondent No.1 was not

competent to reduce the number of Mutawallis

from amongst the descendants of the testator

from five to one;

(iii) the testament indicated that it was

purely private in nature which authorized the

involvement of only the family members and

therefore, depriving the family members from

the Administration is against the spirit of the

testament;

(iv) That the estate was managed by the

testator during his life time and thereafter,

from 1899, it was managed by his sons and

then their descendants till it was brought under

the direct management on 26.01.1978.

Therefore, the descendants had a hereditary

right to continue to manage the estate as

Mutawallis;

(v) that the testator had bequeathed

only the income from the estate but the

property was to be administered by his

executors / sons. Therefore, it is the

descendants alone who can administer the

properties and no person other than the

descendants are entitled to interfere in the

management;

(vi) that the appointment of the

respondent No.3 was illegal and that he was

malversing the income of the property;

(vii) that the respondent No.1 shall

exercise powers in conformity of the directions

of the Wakif;

(viii) that the relinquishment by certain

beneficiaries in favour of the respondent No.1

is impermissible as the testator desired that

the beneficiaries shall continue to enjoy the

benefits perpetually;

(ix) that the induction of non

descendants of the testator into the committee

of Mutawallis tantamounts to depriving the

legitimate rights of the descendants;

(x) that the direct management of the

estate by the respondent No.1 was illegal.

33. However, the petitioners did not challenge the

legality of the notification dated 07.06.1965 or the earlier

scheme of management in L.C.C. No. 5/1967 or the action

of the Wakf Board taking over direct management of the

Wakf.

34. The Tribunal rejected the appeal based on the

following reasoning:

(i) that the creation of the Wakf was

lawful and Ex-P2 satisfies the definition of

"Wakf" as defined under Act of 1954 and

therefore the descendants are estopped from

contending to the contrary;

(ii) that the construction of mosque,

observance of Azadaree during Moharrum and

works of benevolence and charity are all to

the benefit of the members of the community

in general;

              (iii)    that the codicil does not make the

        entire Wakf a "Wakf Alal Aulad"      or a private

        family trust ;





           (iv) that the scheme of management of

the Wakf was in force from the year 1967 for

nearly 28 years;

(v) that the respondent No.1 has the

power to amend the Scheme of management

under Section 69(4) of the Act of 1995;

(vi) that the wakif had not prescribed the

management of the Wakf property and that it

shall always remain with the descendants;

(vii) that the enquiry conducted by the

Law Committee was based on the records and

looking into the interest of the Wakf and the

interest of the Shia community of Bangalore.

35. A perusal of the will and codicil clearly

indicates that the bequeath was only in respect of the

rent/ profits accruing from the 'Bakharabad' property. It

definitely did not deal with the interest in the property

itself. Therefore, in the absence of any stipulation as to

how the 'Bakharabad' property should devolve, the same

would be determined by the law of succession as

applicable to Shia muslims. But what needs to be noted is

that the testator had dedicated the rent and profits for a

religious cause and so long as the property generates

income or profit, the same shall be utilised for the

purposes mentioned in the will. Therefore, for all times to

come, the property shall always remain shackled to meet

the wish of the testator. The notification dated 07.06.1965

issued by the State Government also was only in respect

of the rent/ profits from the 'Bakharabad' property and

nothing else. The descendants of the family of the testator

have not challenged the notification dated 07.06.1965 or

the subsequent framing of a scheme of management in

L.C.C. No. 5/1967 and the consequent taking over of direct

management of the Wakf by the respondent no.1. The

descendants of the Wakif entered into a lease agreement

leasing the 'Bakharabad' property for 90 years and have

allowed a five star hotel to be operated, which makes it

more than evident that the descendants of the testator are

not in any way interested in being appointed as the

mutawallis in the committee of management of the Wakf.

It is precisely for this reason that none of them have

challenged the notification dated 07.06.1965 and the

consequent proceedings initiated by the respondent no.1.

36. In the case on hand, the father of the

petitioners, was the donee under a gift deed dated

18.08.1954 executed by Shah Biwi, who was the

descendant of Aga Mohammad Taqui. Later, he executed a

relinquishment deed dated 03.10.1972 in favour of the

respondent No.1 by receiving a sum of Rs.19,477.50ps.

He relinquished all his interest in 'Bakharabad' property

and declared that he would thenceforth not make any

claim in respect of the said property. Under the

circumstances, the petitioners have no locus standi to

contest that the testator had created only a private family

trust and not a Public Wakf. This question can be urged

only by the legal heirs of the testator and none else.

Therefore, it is left open to be considered in an

appropriate case when any legal heir of the testator,

having a subsisting right, makes a claim in an appropriate

Court of law.

37. Now coming to the question whether the

petitioners claiming to be the descendants of the testator

could challenge the modification of the scheme of

management, on the ground that the respondent no.1

cannot allow non-descendants to be part of the committee

of management, it is necessary to note that the scheme of

management in L.C.C. No. 5/1986 was framed in exercise

of the power under Section 15(2) of the Wakf Act, 1954.

Section 69(4) of the Wakf Act, 1995 confers power on the

respondent no.1 to modify any scheme of management.

Therefore, the power of the respondent no.1 to modify a

scheme of management cannot be doubted.

38. However, the question is whether the

respondent no.1 was justified in restricting the

descendants of the testator in the committee of Mutawallis

to one as against five in the earlier scheme of

management.

39. The respondent No.1 has proposed the

modification on the basis of the relinquishment deeds

executed by the descendants of Aga Mohammad Taqui and

has claimed that by virtue of such relinquishments, the

members of the Shia community of Bangalore have an

interest in the Wakf and that there are 5000 Shia muslims

in Bangalore while the descendants of the testator are 500

in number and therefore constitute 10 % of the population.

Thus in order to ensure larger participation, the

respondent No.1 has modified the scheme of management

and constituted a committee of Mutawallis comprising of

four members of the Shia community in Bangalore and one

member from amongst the descendants of the testator.

The respondent No.1 has however, lost sight of the fact

that the Wakf is only in respect of the rent/ profits from

the property while the descendants continue to be the

lawful owners of the property as there is no dedication of

the property itself and no Wakf is created in that regard.

However, the petitioners have no subsisting right in the

property in view of the relinquishment deed executed in

favour of the respondent No.1. Therefore, this question

too is left open to be decided in an appropriate case, if a

legal heir having any subsisting right approaches a

competent court of law.

40. In that view of the matter, this Revision

Petition lacks merit and the same is dismissed. Any

observations contained herein shall not affect the rights of

any other descendants of Aga Ali Asker Shirazi to establish

that the 'Bakharabad' property was not dedicated to any

religious or charitable purposes and that the notification

dated 07.06.1965 does not affect his or her right in

respect of the 'Bakharabad' property. This is, however,

subject to all limitations prescribed under the Act of 1954

and the Act of 1995.

Sd/-

JUDGE

hnm