Madras High Court
Mohammed Rafi vs Thiruvengadam on 11 February, 2021
CRP.NPD.No.4461 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 01.02.2021
Date of Verdict : 11.02.2021
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.NPD.No. 4461 of 2015
and
MP.No.1 of 2015
Mohammed Rafi ... Petitioner
Vs.
1. Thiruvengadam
2. The Tamil Nadu Wakf Board,
Rep by Chief Executive Officer,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar, Chennai – 1. ... Respondents
PRAYER: The Civil Revision Petition is filed under Article 227 of the
Constitution of India, praying to set aside the judgement and decree dated
18.08.2015 made O.S.No.47/10 on the file of Principal Sub Court,
Villupuram (Wakf Tribunal) and allow the above revision.
For Petitioner : Mr.N.A.Nissar Ahmed
For Respondents : Mr.V.S.Sivasundaram (for R1)
Mr. V.Raghavachari (for R2)
1/14
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.4461 of 2015
ORDER
This Civil Revision Petition is directed as against the judgment and
decree passed in O.S.No.47 of 2010 dated 18.08.2015 on the file of the
Principal Sub Court Villupuram (Wakf Tribunal), thereby, dismissing the
suit filed by the petitioner for declaration to declare that the suit property
belonged to the Milathe Shareef Wakf, recovery of possession and also for
declaration to declare the sale deed executed in favour of the first defendant
herein is null and void, with consequential prayed for permanent injunction,
in respect of the suit property.
2. The learned counsel for the petitioner submitted that the suit
property is a Wakf property by registered Wakf Deed dated 17.06.1938.
Once, Wakf created and trustees had been appointed for the Management of
Wakf, it cannot be revoked subsequently. While that being so, the learned
Wakf Tribunal dismissed the suit only on the ground that the suit property
was not registered with the Wakf Board as required under Section 36 (8) of
the Wakf Act, 1995. The suit property originally belonged one Allah Pichai.
He had formed permanent Wakf by name Milathe Sharref Wakf and
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.4461 of 2015
dedicated it in favour of the said Wakf. It was made on 17.06.1938 and also
evidenced by a registered Wakf Deed executed by him. The income
generated from the Wakf properties are to be utilized towards its
beneficiaries. The Wakf must be a permanent one and therefore, it would
curtail the powers of the trustees and their descendants from alienation or
making any encumbrance over the said Wakf property. The petitioner being
a Muthavalli, is interested in the Wakf founded by the said Allah Pitchai.
3. While that being so, one of the trustees alienated one of the suit
property to the first defendant by executing the registered sale deed dated
03.02.2010, vide document No.307/2010. It transpires that the first
defendant had been taking steps to form a Lay-Out and to sell the suit
property in pieces to a number of persons. He further submitted that the
“Wakf” defined under Section 3 (r) of the Wakf Act, 1995 and it means the
permanent dedication by any person professing Islam of any immovable or
movable property for any purpose recognized by the Muslim law as pious,
religious or charitable. Section 36 of the Wakf Act, 1995 relates to the
registration of the Wakf by the Muthavalli. If the Wakf is not registered as
contemplated under Section 36 of the Wakf Act, 1995. there is penalty
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.4461 of 2015
under Section 61 of the Wakf Act, 1995. Therefore, mere non registration of
Wakf is not the ground for dismissing the suit for declaration. In support of
his contentions, he relied upon the judgments reported in 2008 (2) LW 230
(Tamil Nadu Wakf Board -vs- Hakkim M.Mohamed Moideen & others),
2002 (1) CTC 561 (T.N.Wakf Board -vs- Hathija Ammal (dead) by Lrs.
And others, AIR 1986 Kar 12 ( Mohammed Ghouse -vs- Karnataka Board
of Wakfs) and (1999) 6 SCC 343 (Karnataka Board of Wakf -vs-
Anjuman-E-Ismail Madris-un-Niswan).
4. Per contra, the learned counsel appearing for the second respondent
submitted that the petitioner has no locus standi to file the present suit. He
had been never a Muthavalli of any Wakf. Therefore, the plaintiff is not the
beneficiary under Milathe Shareef. The suit property is purchased by one
Mohammed Ibrahim and other. Therefore, the suit itself is bad for non-
joinder of necessary parties. He further submitted, that even according to
the plaintiff, the suit property is not yet registered as contemplated under
Section 36 of the Wakf Act, 1995. Section 36 (8) of the Wakf Act is very
clear that in case of Wakfs created before the commencement of this Act,
every application for registration shall be made, within three months from
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.4461 of 2015
such commencement and in case it was created after such commencement, it
is within three months from the date of the creation of the Wakf. Therefore,
the suit property has never become a “Wakf property”. In fact, the suit
property was sold out by direct legal heirs of Allah Pithcai and his
descendants from 1944 till 2010 and it is evident by so many sale deeds
dated 01.01.1944 24.10.1959 and 28.03.2003. Without challenging those
sale deeds, he cannot challenge the sale deed 03.02.2010 and as such, it is
clearly barred by limitation. In support of his contentions, he relied upon the
judgments reported in 2015 (4) CTC 34 (Nagoor Kaniammal -vs- Tenkasi
Vangaru Muthu Meeran Sahib Thailka Pallivasal), and 2008 (5) Mad LJ
807 (S.A.Rasheed -vs- R.K.Kamalakaran).
5. Heard the learned counsel for the petitioner as well as the learned
counsel appearing for the respondents.
6. The petitioner is the plaintiff and he filed the said suit as against
the respondents for declaration to declare that the sale deed dated
03.02.2010 is null and void and also to declare the title of Wakf. The
petitioner also prayed for recovery of possession and consequential for
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.4461 of 2015
permanent injunction in respect of the suit property. Admittedly, the suit
property belonged to one Allah Pitchai. According to the plaintiff, he
dedicated the immovable properties in favour of the Wakf for the pious,
religious and charitable purposes. On 17.06.1938 till today, those properties
were not registered with the “Wakf” as contemplated under Section 36 of
the Wakf Act, 1995. Though the petitioner claimed that the entire suit
property is dedicated in favour of the Wakf and the petitioner failed to
prove the same before the trial Court by producing any piece of evidence.
7. In this regard, the learned counsel for the second respondent relied
upon the judgment of this Court reported in 2015 (4) CTC 34 (Nagoor
Kaniammal -vs- Tenkasi Vangaru Muthu Meeran Sahib Thailka
Pallivasal), in which this Court held as follows:-
“Law of Wakf - Dedication of immovable property for
Mosque - Mode of dedication – When dedication of property
would become Wakf property – Specific declaration by founder
is necessary – Founder must divest himself completely from
ownership of property – Absence of delivery of possession
would not make dedication complete – Mere fact that members
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.4461 of 2015
of public offered prayers, does not make it Wakf complete and
irrevocable.
Wakf Act, 1995 (43 of 1995), Section 37 & 5 – Register of
Wakfs – Publication of list of wakfs – Worshipper filed suit for
recovery of possession of Wakf property – Maintainability of
suit – Properties dedicated to Wakf should be included in
Register of Wakfs – Publication of list of Wakfs is necessary to
institute Suit for recovery of possession of Wakf Board – In
instant case, Suit Properties have not been included in Register
of Wakfs and not published in list – Suit filed by worshipper for
recovery of possession of Wakf property is not maintainable.
25. It would not be out of place for this Court to refer to the
decision of the Hon'ble Apex Court in Tamil Nadu Wakf Board
v. Hathija Ammal (Dead) by Lrs. Etc. [2001 (1) CTC 561]
wherein Their Lordships have decided the right of the Wakf
Board to institute a suit. In this regard, paragraphs 6 to 8 of the
said judgment are usefully re-produced hereunder:—
Para 6: “In the event, any property has been omitted by
inadvertence or otherwise, then it is for Wakf Board to take
action as provided under Section 27 of the Act. If the Wakf
Board has reason to believe that a particular property is a
wakf property then it can itself collect information and if
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.4461 of 2015
any question arises whether a particular property is a wakf
property or not it may, after making such enquiry as it may
deem fit decide the question and such decision of the Wakf
Board shall be final unless revoked or modified by a Civil
Court. Such action has not been taken by the Wakf Board in
this case.
Para 7: The High Court is justified in holding that the Wakf
Board had no right to institute suit for declaration that any
property is a wakf property as the scheme of the Act clearly
indicates. The High Court further found that as far as the
appellant is concerned with regard to title of any property,
it must comply with the requirements of Sections 4, 5 and 6
or 27 of the Act, which means that if any property is not
published as wakf property as required under Section 5(2)
of the Act or the Board has not invoked the special power
under Section 27, the Wakf Board cannot file a suit for
declaration and possession and on that basis upheld the
order made by the Trial Court as affirmed by the First
Appellate Court.
Para 8: Ms. Shobha, learned counsel for the appellant,
drew our attention to the decision of this Court in Sayyed
Ali v. A.P. Wakf Board, Hyderabad, (1998) 2 SCC 642; to
contend that wakf property can never lose its character as
wakf property once it is shown that it is a permanent
dedication of property and once a wakf, it will always be a
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.4461 of 2015
wakf. The point urged in this Case is that the suit property
is a wakf property and hence sought for possession. What
was pointed out by the Trial Court, the First Appellate
Court and the High Court concurrently is that before filing
the suit as provided in law, the Wakf Board should have
followed the procedure as required under Section 4, 5 and 6
or 27 of the Act. A finding of fact has been recorded by the
Trial Court, and affirmed in appeal, is that the suit
properties are not included in the notification published
under Section 5(2) of the Act and therefore, steps should
have been taken as provided under Section 27 of the Act. It
is only thereafter a suit for possession could have been filed
by the appellant. There is no answer to this finding.”
26. In the above ruling, the Hon'ble Supreme Court has held that
the Wakf Board has got no right to institute a suit for
declaration that any property is a Wakf property unless the
requirements under Sections 4, 5, 6 & 27 of the Act are complied
with.
27. In the case on hand, the plaintiffs had not produced the
publication of list of Wakf property as contemplated under
Section 5 of the Wakf Act nor the Register of Wakfs, which
contains particulars of all Wakf properties, all title deeds and
documents relating thereto, as provided under Section 37 of the
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.4461 of 2015
Wakf Act. The absence of publication of the list of properties
under Section 5 and the absence of register under Section 37 of
Wakf Act would belie the contention of the plaintiffs that
Mohammed Ismail intended to dedicate the 1st schedule
property to the plaintiffs' Mosque and divested the title in the
said property and deliver the same to the plaintiff's Mosque.
28. In the above factual matrix, the contentions of the learned
counsel appearing for the plaintiffs that Mohammed Ismail
dedicated suit 1st schedule property to the plaintiffs' Mosque
and that the plaintiffs' Mosque has been in possession and
enjoyment of the same, cannot be accepted. The plaintiffs had
miserably failed to prove that Mohammed Ismail intended to
dedicate suit 1st schedule property to the Mosque. In the
absence of any proof that there was a dedication of the suit 1st
schedule property in favour of the plaintiffs, the claim of the
plaintiffs that 1st schedule of the suit property is a ‘Wakf’
property, cannot be granted.
29. When the Wakf Board itself cannot file a suit for declaration
and recovery of possession on a claim that the property is a
Wakf property, in view of the judgments cited supra, it is clear
that the plaintiffs, who claim to be the worshippers, cannot
maintain the suit for declaration and recovery of possession.
However, even if evidence of dedication is not available, the
property will be deemed to be a Wakf if it had been used as a
Wakf property for quite a long time.
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.4461 of 2015
8. In the case on hand, admittedly, though the suit property was
dedicated by the said Allah Pitchai, no trust was formed and no trust was
registered till today. Further, the petitioner/plaintiff also failed to prove that
the suit property is being maintained and possessed by the “Wakf”. It is also
useful to refer relevant portion of under Section 36 (8) of the Wakf Act,
1995, which reads as follows:-
“36.Registration.
.........
(8)In the case of auqafs created before the
commencement of this Act, every application for
registration shall be made, within three months from
such commencement and in the case of auqafs created
after such commencement, within three months from the
date of the creation of the waqf.
Provided that where there is no Board at the time
of creation of a waqf, such application will be made
within three months from the date of establishment of the
Board.”
9. Accordingly, the Wakf has to be registered within three months.
Admittedly, no Wakf is registered till today. Therefore nothing warrants
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.4461 of 2015
this Court to interfere with the findings of the Court below. Hence, this
Court finds no irregularity or infirmity in the order passed by the Court
below.
10. In view of the above discussion, this Civil Revision Petition is
dismissed. Consequently, the connected Miscellaneous Petition is closed.
No costs.
11.02.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
kv
To
1. The Principal Sub Judge, Villupuram (Wakf Tribunal).
2. The Chief Executive Officer,
The Tamil Nadu Wakf Board,
No.1, Jaffer Syrang Street,
Vallal Seethakathi Nagar, Chennai – 1.
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.4461 of 2015
G.K.ILANTHIRAIYAN,J.
Kv
order made in
CRP.NPD.No. 4461 of 2015
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.4461 of 2015
11.02.2021
https://www.mhc.tn.gov.in/judis/
