Madras High Court
Abdur Rehman vs The Thee Vettiappa Pallivasal on 23 August, 2023
C.R.P.(MD)No.521 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 23.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)No.521 of 2017
and
C.M.P.(MD)No.2415 of 2017
Abdur Rehman ... Petitioner / 1st Plaintiff
M.Sheik Hussin (Died) (Exonerated) ... 2nd Plaintiff
Vs.
1.The Thee Vettiappa Pallivasal
Vadakarai, Shenkottai Taluk,
Tirunelveli District,
through its President.
2.Sheik Hussain
3.Syed Mohamed
4.Jannath Basiral
5.The Tamil Nadu Wakf Board,
Having office at Mannady,
Chennai,
Rep. through its
Chief Executive Officer ... Respondents / Respondents
1/18
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.521 of 2017
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India, against the judgment and decree passed in O.S.No.417 of 2010, on
the file of the Wakf Tribunal (Principal Sub Court, Tirunelveli), dated
28.11.2016.
For Petitioner : Mr.S.Meenakshi Sundaram, Senior Counsel
for Mr.N.Ga.Natraj
For Respondents : Mr.N.Syed Ali for R1 to R4
: Mr.D.S.Haroon Rasheed,
Standing Counsel for R5
ORDER
The revision petitioner is the first plaintiff, and the respondents
herein are the defendants before the trial Court. The instant Revision
Petition has been filed against the decree and judgment passed in O.S.No.
417 of 2010, on the file of the Wakf Tribunal (Principal Sub Court,
Tirunelveli), dated 28.11.2016.
2.Shun of unnecessary details, the brief averments of the plaint is
that:
2.1.The first defendant - Pallivasal was established nearly 100
years ago and many devotees, who were residing surrounding areas, offer
daily prayers. The plaintiff would further submit that one Theethar Rowther
executed a registered deed, dated 02.02.1932 and thereby, he bequeathed
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.521 of 2017
a large extend of property to perform Religious Ceremony to the first
defendant - Pallivasal. The said Theethar Rowther has no issues. Hence,
he adopted one Syed Mohamed, and arranged a marriage for him with
Theethar Beevi. As per the recitals of the document, dated 02.02.1932, the
said Syed Mohamed and his wife - Theethar Beevi were given power to
administer the properties and perform Philanthropic activities as mentioned
in the above deed.
2.2. According to the above deed, after the demise of Syed
Mohamed and Theethar Beevi, their children alone are entitled to
administer the properties and to perform ceremonies of the first defendant -
Pallivasal. The plaintiff would further submit that, the deed, dated
02.02.1932, is nothing but a Wakf Nama and that the nomenclature of the
deeds styled as “settlement deed” is wrong and not valid. The said Syed
Mohamed and Theethar Beevi had three issues, by name, Theethar Shahib,
Abubaker Shahib and Mohamootha Beevi.
2.3. While this being so, after the demise of Syed Mohamed, his
wife- Theethar Beevi was again married one Hussain Ali. Out of this
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.521 of 2017
second wedlock, the said Theethar Beevi had three issues, namely, the
defendants 2 and 3, and one girl child, by name, Mymoon Beevi.
2.4. It is the submission of the plaintiff that, after the demise of
Theethar Beevi, the defendants 2 and 3 are in unlawful possession of the
schedule mentioned property, and that they were not doing any
Philanthropic activities as ordained in the settlement deed. The plaintiff
would further submit that the defendants 2 and 3 had also created some
documents in favour of the fourth defendant and inducted her in possession
of some of the properties. The plaintiff would also submit that except the
first defendant Pallivasal, no other could become the owner of the suit
schedule property, since the schedule mentioned property is the Wakf,
created by the Theethar Rowther. The plaintiff would also submit that after
they came to know about the misdeeds of the defendants, they have sent
various representation to the fifth defendant, but all were all fell on deaf
ears.
2.5. The plaintiff would also submitted that the defendants 2 and
3 are attempting to put up construction in the first item of the scheduled
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.521 of 2017
property and they were trying to convert the schedule mentioned property
into house plots. According to the plaintiff, the defendants are
misappropriating a sum of Rs.35,000/- per year from the income of the
schedule property. Therefore, the defendants 2 to 4 are bound to pay the
means profit at the rate of Rs.35,000/- per year. Hence, the plaintiff filed a
suit for declaration that the schedule mentioned properties are the Wakf
properties attached to the first defendant Pallivasal and also for recovery of
possession of the said Pallivasal.
3. Brief averments of the written statement, filed by the
defendants 2 to 4, is as follows:-
3.1. According to these defendants, the plaintiffs have no locus
standi to file the suit against these defendants. They would further submit
that there is no cause of action for the plaintiffs to file a suit against the
defendants. According to this defendants, Theether Rowther has only
created a charge over some of the properties, so as pursue his Philanthropic
activities.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.521 of 2017
3.2. It is the submission of this defendants that, as per the
settlement deed, dated 02.02.1932, executed by Theether Rowther, the suit
schedule properties were the absolute properties of one Syed Mohamed and
Theether Beevi. They would also submit that the said deed, dated
02.02.1932, is not at all a Wakf Nama. They also referred about the legal
heirs of the Theethar Beevi, through her first husband - Syed Mohamed and
through her second husband - Hussain Ali. They also referred about the
gift deed, dated 04.12.1972 executed by the Theethar Beevi along with her
son born through her first husband, namely, Mohammed Abubaker, in
favour of the second and third defendants, by way of two separate
documents and the Syed Mohammed, also executed another gift deed, on
02.02.1981 in favour of Mymoon Beevi and Mohmootha Beevi. Therefore,
they would submit that by virtue of above documents, the above persons
are in possession and enjoyment of the schedule mentioned property,
according to the above documents.
3.3. It is the submission of the defendants that, Syed Mohamed
and his wife-Theethar Beevi filed a suit against the Wakf in O.S.No.6 of
1965, on the file of the District Munsif, Tenkasi. Wherein the District
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.521 of 2017
Munsif, Tenkasi, has held that the document, dated 02.02.1932 is not a
Wakf deed, but, only a settlement deed. The defendants would further
submit that the first appeal in A.S.161 of 1966 and S.A.No.80 of 1968,
arising out of the decree in O.S.No.6 of 1965, confirmed the decree of the
trial Court, as such, the very decree will become a res judicata to the
present suit. The defendants further submit that though there were so many
transactions the plaintiff did not add all those aliene. Therefore, this
defendants would pray that the very suit is liable to be dismissed.
4. Before the Court below, on the side of the plaintiff, one
witness was examined as P.W.1 and 10 documents were marked as Ex.A1 to
Ex.A10 . On behalf of the defendants, 2 witnesses were examined as D.W.1
and D.W.2 and 24 documents were marked as Ex.B1 to Ex.B24.
5. The learned trial Judge, has framed as many as five issues and
has held that, the suit property is not a Wakf property, and therefore held
that the plaintiff is not entitled for the relief of possession and has
ultimately dismissed the suit.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.521 of 2017
6. Aggrieved with the order of the learned trial Judge, the
plaintiff has filed the instant Civil Revision Petition.
7. For the sake of convenience, the parties are referred according
to their litigative status before the trial Court.
8. The learned Senior Counsel appearing on behalf of the plaintiff
/ revision petitioner would submit that the very finding of the learned trial
Judge, that the suit is hit by res judicata is contrary to the factual position.
He would also submit that when the High Court has held that there is a
Wakf Alal-Aulad, then the Subordinate Judge cannot decide the nature of
Wakf property and hold it as a private property. He would further submit
that, when the line of succession is changed, then as per the settlement
deed, the property will vest with the first defendant. It is also the
submission of the learned Senior Counsel that when the extent of
dedication in the property could not be ascertained to its precision, then the
entire property should be construed as a Wakf property. In this regard, the
learned Senior Counsel would rely upon the judgments of this Court
reported in 1981- 2- MLJ-176 (Tamil Nadu Wakf Board V. Sannasi
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.521 of 2017
Munayathiriyan) and 1979- 1- MLJ-189 (The Tamil Nadu Wakf Board V.
M.Ibrahim Musuee Muthavalli, Bayan Bai's Wakf).
9. Per contra, the learned counsel for the respondents would
earnestly submit before this Court that, the finding of the learned trial
Judge is perfectly in order and that the suit filed by the plaintiff / revision
petitioner is hit by the Principle of res judicata, which contention was
appreciated by the learned trial Judge in its right perspective. Therefore, he
would submit that instant suit is liable to be dismissed by dismissing the
Civil Revision Petition. The learned counsel for the respondents would rely
upon the unreported judgment of the Court held in C.RP.No.256 of 2019
and W.P.No.17718 of 2019 (V.Krishnan B.Akbar), dated 24.06.2020.
10. I have given my anxious consideration to the either side
submissions.
11. Before embark in to the disputed facts for easy reference it is
imperative upon the Court to record the admitted facts. It is admitted by
either party that the said Theethar Rowther was the original owner of the
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.521 of 2017
suit schedule property. It is further admitted that by virtue of Ex.A1, deed
he executed the settlement deed, in favour of one Syed Mohamed and his
wife -Theethar Beevi. It is also admitted that Theether Beevi has two
husbands, viz., Syed Mohamed and Hussain Ali. It is also not in dispute
that the said Theethar Beevi has two sons through her first husband,
namely, Theether Shahib, Abubakkar Shahib. Through her second husband
the said Theethar Beevi has two sons, namely, Sheik Hussain and Syed
Mohamed. According to the plaintiff, Ex.A1- settlement deed dedicates
certain portion of the income from the schedule of property to do some
philanthropical activities.
12. The learned Senior Counsel for the plaintiff / revision
petitioner would submit that, when the dedication of some portion of
income to the Wakf and when the remaining portion of the income was
provided to some other person, then when such arrangement could not be
followed in precision, then, the entire property would become Wakf
property.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.521 of 2017
13. The learned Senior Counsel would invite the attention of this
Court in respect of judgment reported in 1981- 2- MLJ-176 (Tamil Nadu
Wakf Board V. Sannasi Munayathiriyan). The relevant portion of the
judgment is as follows-
“6. The learned counsel for the respondent
submitted that this is a case of dedication for pious or
religious purposes only to the extent of one share out of
eight and a half and, therefore, it would not be a case of
public wakf at all. I am unable to agree with this
submission. Where there is no separate disposition of
property for public charitable purposes and private
purposes, as known to Mohammadan Law, the wakf will be
taken as a dedication in favour of the Almighty, and the
entire property will have to be treated as wakf property. In V.
Mohammed Mahin v. Madras State Wakf Board. K. S.
Venkataraman J. has held in similar circumstances that
there would be a wakf and that the enjoyment by the
manager for the time being could only be subject to the
conditions of the wakf. The prohibition against alienation
was also construed to mean that the document could only be
treated as a wakf-alal-aulad. Even where there is a
concurrent and immediate gift for charitable objects in a
wakf created in favour of one's own family children or
descendants, the learned Judge pointed out that it would
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.521 of 2017
warrant the implication of an ultimate trust for those objects
on the failure of the family or descendants. This decision
does not, in any way, support the contention of the learned
counsel for the respondent that this is not the case of a wakf-
alal-aulad at all. The definition provision, in so far as it is
material, of the Wakfs Act, 1954, runs as follows: -
" 'Wakf means the permanent dedication by a
person professing Islam of any movable or immovable
property for any purpose recognised by the Muslim law as
pious, religious or charitable, and includes. ...(iii) A wakf-
alal-aulad to the extent to which the property is dedicated
for any purpose recognized by Muslim Law as pious,
religious or charitable"
7. In the present case, there is no separate
dedication for pious religious and charitable purposes and
for purposes of the maintenance of the members of the
family. Therefore the entire document has to be taken as
creating a wakf and the properties would come within the
purview of the Wakfs Act 1954, As pointed out by
Venkataraman J. in a case like this, it would be necessary
for the Wakf Board to frame a scheme providing for ,the
allocation among the different objects in the manner
contemplated by the wakf.
8. In the present case, I am only concerned with
the question as to whether the Wakf Board is entitled to
recover possession of the property. The alienation has been
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.521 of 2017
made by a person who was not entitled to alienate the
property. It is not clear how the vendor, a lady could even be
a Manager, as contemplated by the wakif under Ex. A. 2. If
the vendor was a person who could be a Manager, then he is
bound the ban on alienation stipulated in the document. If
he or she was a stranger then also he or she could not have
alienated the property, The result is that the alienation is not
binding on any one. The alienation would be invalid and
illegal and would not pass any title.“
(Emphasis supplied by this Court)
14. From the above judgment, the learned Senior Counsel
emphasis before this Court that when there is no separate dispossession of
property for public charitable purpose and for a private purpose, then the
entire property would be treated as the Wakf property. Therefore, by
inviting the recitals of Ex.A1- settlement deed, the learned Senior Counsel
would submit that the suit property is a Wakf property.
15. However, the learned counsel for the respondents 1 to 4
would earnestly submit before this Court that the issue whether the suit
property is the Wakf property or not has already been decided in the
previous suit in O.S.No.6 of 1965. The learned counsel would further
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.521 of 2017
submit that Ex.P17 was filed by Theether Beevi and her son Abubakar
Shahib against the fifth defendant - Wakf Board. The said factum is not
disputed by the revision petitioner herein.
16. The learned Senior Counsel for the revision petitioner would
invite the attention of this Court in respect of the findings that, in the entire
suit property, only an extent of Rs.30/- is the Wakf, and not in respect of
the entire property. Even while this Court perused the judgment, there is
an issue framed in that suit as to whether the whole suit properties are
Wakf or a sum of Rs.30/- alone from the income of the properties of Wakf.
17. It appears from the records, that the decree and judgment of O.S.No.6
of 1965, has reached finality in S.A.No.80 of 1968. Therefore, this Court
is of the view that when there was a suit by Theethar Beevi during 1965,
that too against the Wakf Board, who is the fifth defendant / fifth
respondent herein, and has got a finding in their favour that the suit
property is not a Wakf and only an extent of Rs.30/- is Wakf and when
such finding has reached its finality up to the Second Appeal level, the
very institution of the present suit for the very same relief that the plaint
schedule
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.521 of 2017
property is to be declared as a Wakf property is indubitably and irrefutably
hit by the Principles of res judicata.
18. At this juncture, this Court would like to rely upon the
judgment relied by the respondent, held in an unreported judgment in
C.R.P.No.256 of 2019 and W.P.No.17718 of 2019 (V.Krishnan and another
V. B.Akbar). In the above judgment, the Court, after referring the oft
quoted judgment of K.K. Modi Vs. K.N. Modi and others reported in
1998 (3) SCC 573 , has explained about the evil of relitigation and stated
the relitigation is an abuse of process of Court.
19. An yet another argument was advanced by the learned Senior
Counsel that, as per Ex.A1 – settlement deed, only the legal heirs of Syed
Mohamed and Theethar Beevi are entitled to succeed and not the other
legal heirs qua the children of Theethar Beevi through her second husband.
Therefore, he would submit that the defendants 2 and 3 have no right over
the property. In this regard, the learned counsel for the respondents 1 to 4
would submit that, the very condition stipulated in the settlement deed –
Ex.A1 was found to be illegal in O.S.No.455 of 1985 and that the said
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.521 of 2017
finding reached finality. Therefore, though the said deed – Ex.A1 stipulates
certain condition, in view of the subsequent decree passed in O.S.No.455
of 1985, regarding the validity of the settlement deed, this Court is of the
view that the gift deed executed by Theethar Beevi and her son Abubakar
Shahib born through her second husband are valid document.
20. Therefore, once the gift deed become valid and that the
property covered under the gift deed is not fully Wakf property and the
Wakf is only to an extent of Rs.30/- and when such issue was raised in the
previous suit in O.S.No.6 of 1965 and decided finally and reached its
finality, this Court is of the view that there are no material available, in
favour of the petitioner to interfere with the well considered order of the
Court below.
21. Therefore, the instant Revision Petition is liable to be
dismissed and accordingly, dismissed. There shall be no order as to costs.
Consequently, connected Miscellaneous Petition is closed.
23.08.2023
NCC : Yes/No
Index :Yes/No
Ls
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.521 of 2017
To
1.The Wakf Tribunal
(Principal Sub Court, Tirunelveli),
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.521 of 2017
C.KUMARAPPAN.,J.
Ls
Order made in
C.R.P(MD)No.521 of 2017
23.08.2023
https://www.mhc.tn.gov.in/judis
