Madras High Court
Hasina Begum (Died) vs Shoukath Ali on 20 June, 2023
2023/MHC/3070
A.S.No.767 of 1990
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.No.767 of 1990
Hasina Begum (Died)
2.Mahaboob Jan (Died)
3.Safiha
4.Safa (Minor)
5,Bilal (Minor)
(Minor appellants A4 and A5 are represented
through their mother A3 Natural guardian)
(Cause title amended vide Court order dated
04.02.201 made in A.S.No.767 of 1990) ... Appellants
Vs.
1.Shoukath Ali
2.Liakath Ali
3.Riyaz
4.Minor Jamal
Rep. by his brother and
guardian Shoukath Ali.
5.Ayyub
1/26
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6.Kudubudin
7.Ziabudin
8.Nazira ... Respondents
PRAYER: Appeal Suit filed under Section 96 of C.P.C., 1908, against the
judgment and decree passed in O.S.No.448 of 1986 dated 24.04.1990, by the
learned V Additional Subordinate Judge, Trichy.
For Appellants : Mr.V.Raghavachari,
Senior Counsel for
Mr.S.Ramesh
For Respondents : Mr.P.Jamal Mohamed for R1 to R4
R5 to R8 – Tabal returned
No such addressee
JUDGMENT
This Appeal Suit has been remanded by the Hon'ble Apex Court in Civil
Appeal No.20036 of 2017, on the ground that the High Court reversed the decree
passed by the trial Court only on the ground that no issue as to the vesting of the
property in wakf has been framed by the trial Court. After remanding, this matter
has been heard afresh.
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2. For the sake of convenience, the parties are referred to herein, as per their
own ranking before the trial Court.
3. The brief facts leading to the filing of this Appeal Suit are as follows:
(i) The suit property is a house property originally belonged to one Hyder
Masthan Saheb, the paternal grandfather of the plaintiffs, the first defendant and
the father of the defendants 2 and 3. The said Hyder Masthan Saheb had three
wives. The first wife was Khatoonbi, the second wife was Zaithoonbi and the
third wife was Azeeza Bi. The 5th defendant is the son of Hyder Masthan Saheb
born through the first wife. The fourth defendant is the daughter of the fifth
defendant and granddaughter of Hyder Masthan Saheb. The said Hyder Masthan
Saheb had a son and daughter viz., Shahul Hameed and Raheemunnisa, through
the second wife, but Raheemunnisa died in an unmarried state. The plaintiffs and
the first defendant are the sons of Shahul Hameed. The defendants 2 and 3 are the
sons of Hyder Masthan Saheb through the third wife, Azeeza Bi.
(ii) The said Hyder Masthan Saheb, by a deed of settlement dated
11.10.1946, settled the suit properties and other properties in favour of his
descendants. The suit properties were in possession and enjoyment of Hyder
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Masthan Saheb, during his life time and after his life time, in the occupation of his
descendants. It is the further contention of the plaintiffs that as per the settlement
deed, the father of the plaintiffs, first defendant and defendants 2 and 3 and their
male heirs have to reside in the suit property and perform the obligations imposed
on them in the settlement deed.
(iii) It is also stated in the settlement deed that suit property should not be
either alienated or even given on lease on any condition. As per the settlement
deed, possession was taken by the plaintiffs' father Shahul Hameed and his cousins
viz., defendants 2 and 3. They were in possession and enjoyment of the property
as a legal male descendants of Hyder Masthan Saheb. Further, as per the
settlement deed, they have no right of alienation, but they can only live in the
property and they cannot even lease it out. It is also stipulated in the settlement
deed that after the life time of the plaintiffs' father and the defendants 2 and 3,
their male descendants are also entitled to live in the property from generation to
generation. The intention of the settlor was to keep the property intact without any
dissipation.
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(iv) The plaintiffs' father died in the year 1975. The plaintiffs and
defendants 2 and 3 were living in the same property. In the year 1975, the
plaintiffs and first defendant were minors. It appears that on 20.05.1975, the
plaintiffs' father Shahul Hameed, his wife Mahrunnisa and the mother of the
defendants 2 and 3 viz., Azeeza Bi said to have executed a sale deed in respect of
the property in favour of the fourth defendant. The fourth defendant, who is the
granddaughter of Hyder Masthan Saheb through the first wife, has also aware of
the execution of the settlement deed. Besides, she has also aware of the defect in
title. Just to purchase litigation, she seems to have purchased the suit property for
a consideration of Rs.30,000/-.
(v) According to the plaintiffs, the sale deed is not a genuine transaction. At
any event, it will not affect the rights of the plaintiffs and the first defendant. The
plaintiffs came to know about the said settlement deed only recently. In the said
settlement deed, the mother of the plaintiffs and the first defendant signed as their
guardian. Hence, the alienation is illegal and invalid and will not bind on the
rights of the plaintiffs and the defendants 1 to 3. In other words, it will not take
away the rights of the plaintiffs, which are granted to them under the settlement
deed dated 11.10.1946. Hence, the suit has been filed for declaration to declare
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the sale deed dated 20.05.1975, executed in favour of the fourth defendant is null
and void and for recovery of possession of the suit properties to the plaintiffs for
themselves and defendants 1 to 3.
4. Defendants 1 to 3, 5 and 7 remained ex-parte. Defendant No.4 has filed a
written statement, which was adopted by the sixth defendant. It is the contention
of the fourth defendant that the plaintiffs' father, mother and defendants 2 and 3
and their mother executed a registered sale deed dated 20.05.1975, for valuable
consideration. The same is made to clear the debts due by the father of the
plaintiffs, for which the suit house property was brought for sale. Ever since from
the date of purchase, she has been in open, continuous and uninterrupted
possession and enjoyment of the suit property in her own right and title after
paying the house tax and the electric charges.
4.1. It is the further case of the fourth defendant that though Hyder Masthan
Saheb has executed the alleged settlement deed dated 11.10.1946, in respect of the
suit properties and other properties, the same was not given effect to and he was
alone in possession and enjoyment of the suit properties in his own right and title.
He duly cancelled the said settlement deed dated 11.10.1946 and thereafter, he has
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executed the settlement deed dated 27.05.1954, in respect of the suit properties
and other properties in favour of the father of the plaintiffs, late Shahul Hameed,
defendants 2 and 3, the mother of the defendants 2 and 3 and his first wife with
absolute right. The possession of the suit property and other properties were given
to the settlees by the settlor in pursuance of the settlement deed dated 27.05.1954.
They continued to be in possession, till they sold the suit property to the fourth
defendant on 20.05.1975.
4.2. The plaintiffs and the first defendant were not in existence at all either
on 11.10.1946 or on 27.05.1954. Further, the plaintiffs and first defendant were
the unborn children of late Shahul Hameed. Therefore, the plaintiffs cannot claim
any right under the alleged settlement deed dated 11.10.1946, since they were
unborn sons of late Shahul Hameed and the said document is void under
Mohammedan Law. Further, it is the contention of the fourth defendant that the
plaintiffs also estopped from questioning the validity of the sale deed dated
20.05.1975, executed by the father of the plaintiffs and similarly, the suit is barred
by limitation.
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5. Based on the above pleadings, the trial Court has framed the following
issues:
“1. Whether the deed of settlement dated 11.10.1946 is true and
valid?
2. It is true that the said settlement deed dated 11.10.1946 is
cancelled?
3. Whether the settlement deed executed by Hyder Masthan Saheb
on 27.05.1954 is true and valid?
4.Whether the sale deed dated 20.05.1975 is invalid and void?
5. Whether the fourth defendant has perfected the title by adverse
possession?
6. Whether the suit is framed as not maintainable?
7.Whether the suit is barred by limitation?
8. Whether the plaintiffs are entitled to declaration and recovery
of possession as prayed for”
9. To what other relief, the plaintiff is entitled?”
6. Before the Tribunal, on the side of the plaintiffs, the first plaintiff
examined himself as P.W.1 and six documents were marked as Ex.A1 to Ex.A6.
On the side of the defendants, the fourth defendant herself was examined as D.W.1
and 31 documents were marked as Ex.B1 to Ex.B.31.
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7. Based on the evidence and materials, the trial Court held that pursuant to
the settlement deed-Ex.A2, dated 11.10.1946, the suit property is a Wakf property,
and also held that the sale deed is null and void and decreed the suit for
declaration and for recovery of possession. Aggrieved over the same, an appeal
has been filed before this Court by the fourth defendant. During the appeal stage,
an application was filed in M.P.(MD)No.1 of 2007 for reception of additional
documents as Ex.B32 to Ex.B34. The same was allowed by this Court and the
documents have been marked as Ex.B32 to Ex.B34. This Court, by order dated
10.12.2007, allowed the appeal by setting aside the judgment of the trial Court.
When the same was challenged before the Hon'ble Supreme Court in Civil Appeal
No.20036 of 2017, the Hon'ble Supreme Court, by order dated 01.12.2017, set
aside the judgment of this Court and remanded the matter to this Court for
deciding the matter on merits. Therefore, this appeal has been once again heard
afresh.
8. The learned Senior Counsel appearing for the fourth defendant /
appellants would submit that the very suit itself was framed for declaration and for
recovery of suit property, on the ground that the sale is not valid, since the male
descendants of one Hyder Masthan Saheb were given right of residence. It is his
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further contention that, in the entire pladings, the plaintiffs have never whispered
anything about the Wakf created on the basis of Ex.A2, settlement deed executed
by the said Hyder Masthan Saheb. It is the further contention of the learned
counsel appearing for the fourth defendant / appellants that though the settlement
deed was originally executed creating Wakf in the year 1946 by the said Hyder
Masthan Saheb, the property was not permanently dedicated for continuing the
charities as mentioned in the said settlement deed. Therefore, it his contention that
in the absence of permanent dedication and mere recitals in the document, the
lower Court assumed that Wakf was created.
9. It is the further contention of the learned counsel appearing for the fourth
defendant / appellants that the said document of the year 1946, which was marked
as Ex.A2. Even after the document Ex.A2, the settlor was enjoying the property as
absolute property. Thereafter, he himself has cancelled the said settlement deed
under Ex.B4, wherein he has clearly stated that he has executed a settlement deed
under Ex.A2 and the performance mentioned in the settlement has not been acted
upon and no activities has been carried away. Therefore, he has cancelled the said
settlement. Thereafter, he has executed the settlement, settling the properties in
favour of the legal heirs under Ex.B3, 27.05.1954. The said properties were
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settled in favour of Sahul Hameed and defendants 2 and 3. The plaintiffs and the
first defendant were not born at the time executing Ex.A2, dated 11.10.1946 and
also Ex.B3, dated 27.05.1954. The plaintiffs' father, first defendant and
defendants 2 and 3 become absolute owner of the property and they executed a
sale deed in favour of the fourth defendant, who is also the granddaughter of the
original settlor.
10. It is the further contention of the learned counsel appearing for the
fourth defendant / appellants that the plaintiffs' father has sold the other properties
settled under Ex.B3, which is also the subject matter of the property in Ex.A2,
dated 11.10.1946. Whereas, though the properties of agricultural purpose have
also already been sold, suppressing the said fact, the plaintiffs have now chosen to
file the suit only in respect of the house property alone and no other relief
whatsoever sought against the purchaser. This aspect itself clearly proved the fact
that the suit has been filed for unlawful enrichment. When permanent dedication
has not been made in respect of immovable property and the deed of settlement
was also cancelled by the settlor, there is no Wakf created legally. Such being the
position, the plaintiffs' father, who become an owner on the basis of Ex.B3, dated
27.05.1954, had dealt other properties and the plaintiffs have now chosen to file a
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suit only in respect of house property, which itself clearly shows that the plaintiffs
are estopped from questioning the sale deed in favour of the fourth defendant.
11. Further, the conduct of the plaintiffs in not pleading anything about the
Wakf in the entire plaint itself, clearly shows that they are very much aware that
there was no Wakf created and existence and their father also dealt the other
properties, which is also the subject matter of Ex.A2, settlement deed dated
11.10.1946. Hence, it is the contention of the learned counsel appearing for the
fourth defendant / appellants that when the plaintiffs are not even born at the time
of execution of the settlement in favour of their father, now they cannot be contend
that in the suit property, only the male decendants have given a right of residence.
When the very document, under which the right of residence was given, was not
acted upon and cancelled by the settlor, the properties are dealt in different
transaction and sold to various third parties, the finding of the trial Court that the
property is a Wakf property, is without any evidence and pleadings. The plaintiffs
also suppressed the earlier document under which their father derived the title
under Ex.B3 settlement deed. This fact itself clearly shows that the plaintiffs have
not come to the Court with clean hands and the suit has been filed beyond the
period of three years after attaining the majority, which is also clearly barred by
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limitation. In support of his submissions, he placed reliance on the following
judgments:
1. In Chhedi Lal Misra (Dead) through LRs Vs. Civil Judge Lucknow and
others reported in (2007) 4 SCC 632;
2. In Mariymma Vs. Andunhi reported in 1978 SCC OnLine Ker 211;
3. In Muhammad Aziz-UD-Din Ahmad Khan Vs. The Legal
Remembrances to Government reported in 15All 321-13 A.W.N.;
4. In Mohammed Vs. Mohammed Beke reported in (1996) 10 SCC 705;
5. In Mohd. Khasim Vs. Mohd. Dastagir and others reported in (2006) 13
SCC 497;
6. In Garib Das and Ros. Vs. Munshi Abdul Hamid and Ors. reported in
AIR 1970 SC 1035;
7. In Zafar Hussain Vs. Mian Mohammad Ghias-ud-Din and other
reported in 1936 SCC OnLine Lah 516;
8. In T.N.Wakf Board Vs. Hathija Ammal (Dead) By Lrs. and others
reported in (2001) 8 SCC 528;
9. In Prem Singh and others Vs. Birbal and others reported in (2006) 5
SCC 353;
10. In Wakf Board A.P., represented by its Secretary Vs. Biradavolu
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Ramana Reddy reported in (1999) 6 SCC 582;
11. In L.C.Hanumanthappa (since Dead), represented by his legal
representatives Vs. H.B.Shivakumar reported in (2016) 1 SCC 332; and
12. In Joseph Carls, Xavier Louis Vs. Stanislaus Costa and Ors. reported
in AIR 1968 Mad 161.
12. The learned counsel appearing for the plaintiffs / respondents submitted
that the Plaintiffs ancestors have created Wakf and the property has been dedicated
for the purpose of doing certain charity. Once the Wakf has been created, any
subsequent alienation cannot be valid in the eye of law. According to him, the trial
Court had clearly considered the entire aspects in this regard and held that the
documents executed in favour of the fourth defendants is not valid in the eye of
law. Therefore, it is the contention of the learned counsel appearing for the
plaintiffs / respondents that the plaintiffs are entitled for recovery of possession as
prayed for.
13. In the light of the above submissions, now the points arise for
considering in this Appeal Suit are as follows:
1. Whether the suit property was permanently dedicated by its
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settlor to construe the same as a Wakf property for any
purpose of religious in nature?
2. Whether the settlement deed dated 11.10.1946 was acted
upon?
3. Was there a permanent dedication of the suit property as to
create Wakf?
4. Whether the plaintiffs / respondents are estopped from
questioning the document executed by their father, mother
and defendants 2 and 3?
5. When Plaintiffs/Respondents have not challenged the sale in
respect of the other properties stated to have been
permanently dedicated as Wakf property are entitled to file a
suit only in respect of portion of property which is the subject
matter of Settlement Deed dated 11.10.1946.
6. Whether the trial Court is right in framing the issue as to the
validity of the Wakf when the plaintiffs themselves have not
pleaded in the plaint that Wakf has been created for charitable
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purpose?
7. To what other relief, the parties are entitled to?
Points:
14. The suit has been filed for declaration to set aside the sale deed executed
by the father of the plaintiffs and defendants 2 and 3 in favour of the 4th defendant.
Relationship of the parties are not in dispute. One Hyder Masthan Saheb, who is
the grandfather of the plaintiffs, first defendant and also the fourth defendant
herein, had three wives. Fifth defendant is the son of said Hyder Masthan Saheb,
born through the first wife. Fourth defendant is the daughter of fifth defendant.
The plaintiffs are the grandchildren of Hyder Masthan Saheb. Plaintiffs' father
one Sahul Hameed was the son of Hyder Masthan Saheb born through the second
wife. Defendants 2 and 3 also the sons of Hyder Masthan Saheb, born through the
third wife. Seventh defendant is the legal heir of third defendant, who died. The
relationship is not disputed.
15. The plaint has been filed on the strength of the document Ex.A2, dated
11.10.1946 executed by Hyder Masthan Saheb, contending that the suit properties
were settled, wherein the father of the plaintiffs, first defendant, defendants 2 and
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3 and their male heirs have to reside in the suit property and perform the
obligation imposed on them in the document. In the entire plaint, it is not pleaded
that the Wakf has been created on the basis of Ex.A2. There was no pleading as to
permanent dedication of the immovable property to do the charity by feeding the
poor people. Whereas, in the evidence, first time the first plaintiff has stated that
the suit property was dedicated permanently and his grandfather has created a
Wakf. Whereas, it is the specific contention of the defendants that there was no
permanent dedication of the immovable property and no Wakf has been created.
Having executed a settlement deed-Ex.A2, the settlor continued to be in
possession and enjoyment of the suit property and he has cancelled the settlement
deed dated 11.10.1946, under Ex.B4. Thereafter, he has settled the properties in
favour of plaintiffs' father and others, not only the suit property but also other
agricultural properties. Based on the said settlement deed, the agricultural
properties have been sold to various third parties by the plaintiffs' father and
defendants 1 to 3, which has not been included in the suit property. Hence, it is
the specific defence of the learned counsel appearing for the fourth defendant /
appellants that there is no Wakf has been created.
16. On a perusal of the entire plaint, it is seen that except stating that the suit
property was settled in favour of the male descendants, in which they have given
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the right of residence with certain obligations, it is no where pleaded in the plaint
that the suit properties were permanently dedicated and charity mentioned in
Ex.A2 was continued by the settlor or any other person. It is also clearly
established on record that while executing the settlement deed dated 11.10.1946-
Ex.A2, subsequent cancellation and also the settlement in favour of the plaintiffs'
father and defendants 1 to 3, the plaintiffs and the first defendant were not born.
17. Ex.B32 to Ex.B34 have been filed before this Court. Through Ex.B32-
sale deed dated 04.06.1958, the father of the plaintiffs viz., Shahul Hameed has
sold the property, which was settled in his favour under Ex.B3-settlement deed
dated 27.051954. Similarly, through Ex.B33-sale deed dated 10.04.1964, the other
legal heirs of Hyder Masthan Saheb, have sold the property, wherein also they
clearly traced the title only on the basis of Ex.B3. The sale has been effected to
clear the debts of the family. Through Ex.B34-mortgage deed, dated 28.12.1970,
the defendants 2 and 3 have executed the mortgage deed and dealt the property
individually. Ex.B4, the cancellation deed executed by the original settlor in
Ex.A2 makes it clear that the settlor himself has stated that though he has executed
the settlement deed for the purpose of certain charity in the year 1946, he
continued to enjoy the property and patta also stands in his name and further, since
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the performance mentioned in the settlement has not been acted upon, he decided
to cancel the settlement deed under Ex.B4. The very recitals in Ex.B4- the
cancellation deed makes it clear that the settlor himself continued in possession
and enjoyment of the property and all the revenue records also stood in his name
and since the performance mentioned in the settlement has not been acted upon,
he has cancelled the settlement deed. Thereafter, under Ex.B3, settlement deed,
dated 27.05.1954, he has executed the settlement in favour of his sons not only the
suit property but also other properties.
18. The plaintiffs' father is one Shahul Hameed, who is the son of the
original settlor and the defendants 2 and 3 also dealt the property separately as per
Ex.B32 to Ex.B34 and sold all other properties. These facts have been totally
suppressed in the plaint. The plaint is proceeded, as if Wakf has been created in
respect of the suit property and therefore, any sale made by the father of the
plaintiffs and others are not valid and therefore, they sought to declare the sale as
null and void and also sought for recovery of possession.
19. It is relevant to note that even in the prayer column, it is not the case of
the plaintiffs that the suit property is required for the purpose of continuing the
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charity as originally envisaged by the settlor under Ex.A2, whereas, they have
sought the personal relief of recovery of possession for their own benefit. No
where in the evidence, it is established that the so called Wakf is continuing and
all the charities earmarked in the Wakf has been performed by any of the legal
heirs. Whereas the plaintiffs' father himself has sold certain properties, which is
also subject matter under Ex.A2 and also sold the house property, which is the
subject matter of the present suit, wherein the plaintiffs were also made as eo-
nominee parties and the suit has been filed after a period of three years after the
plaintiffs attaining the majority. When the plaintiffs themselves have made as eo-
nominee parties in the sale and sale is made for clearing family debts. Plaintiffs
ought to have challenged such sale within three years from their majority. The
father of the plaintiffs and mother were also stood as guardians and executed the
sale. The plaintiffs suppressing all the above facts, taking advantage of the recitals
in the Ex.A2, settlement deed, have filed the suit.
20. It is relevant to note that though Ex.A2 shows as if the Wakf has been
created in respect of the suit property and other properties, the very settlor himself
has cancelled that settlement deed under Ex.B4-the cancellation deed, wherein he
has specifically stated that the Wakf has never come into force and he continued in
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possession of the property. Therefore, he cancelled the same and again resettled
the property to all the legal heirs. Only based on the said settlement deed, the
properties have been dealt as individual property by other legal heirs, including
the father of the plaintiffs. The fourth defendant has purchased the property on
20.05.1975. Thereafter, she continued to enjoy the property as absolute owner and
all the mutations have also been taken place, which are also evident from Ex.B6 to
Ex.B9, which shows that the fourth defendant, as absolute owner, has paid all the
tax and revenue to the Government. Whereas in the plaint, it was stated that the
property has been gifted to only male descendants and the right of residence in the
house property were also given to them. In the absence of any evidence to show
that there is a permanent dedication of the immovable property for any charitable
purpose, it cannot be said that the Wakf is created automatically.
21. Though in Ex.A2 certain charges have been earmarked to feed the poor
people, the very settlor himself, in a subsequent deed of cancellation under Ex.B4,
clearly referred that the said settlement deed was not acted upon and no charity
has been done, the revenue records also stood in his name and therefore, he
cancelled it. In the absence of any evidence to show that the Wakf created under
Ex.A2 has been acted upon, this Court is unable to accept the contention of the
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plaintiffs that there is a valid Wakf. It is the contention of the learned counsel
appearing for the plaintiffs / respondents that once the Wakf has been crated, the
same cannot be cancelled by subsequent deed by the settlor. It is relevant to note
that when the settlement deed has never been acted upon and settlor himself has
retained possession and transferred the property to the other legal heirs, it could be
held that no valid Wakf of the property as mentioned in the said deed was created.
22. In this regard, the High Court of Allahabad in a judgment in
Muhammad Aziz-UD-Din Ahmad Khan Vs. The Legal Remembrances to
Government reported in 15All 321-13 A.W.N, has held as follows:
“According to the law of Sunni Muhammadana it is essential to the
validity of a waqf that the waqf should actually divest himself of
possession of the waqf property.
Hence, where a Sunni Muhammadan executed and registered what
purported to be a deed of waqf, but never acted upon it and retained
possession until his death of the property dealt with by the deed, which
property subsequently passed to his two sons by inheritance.
Held that no valid waqf of the property mentioned in the said deed
was constituted.”
23. Similarly, in Mariyumma Vs. Andunhi reported in 1978 SCC OnLine
Ker 211, the Kerala High Court has held as follows:
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“It is expressly stipulated that the property shall remain as the
joint property of executants Nos.4, 5 and 6 and they are to hold the
property from generation to generation subject only to the restricts that
the property should not be alienated in favour of any strangers nor
burdened with debts, attachments or injunctions and that from out of the
income the recitation of Quran and reading of Moulood in the family
house should be got performed. Since the basic requisite that there
should be a permanent dedication of the property for religious or
charitable purposes is not satisfied in the present case, it must be held
that no valid wakf has been created in respect of the plaint schedule
property under Ex.A2.”
24. In Chhedi Lal Misra (Dead) through LRs Vs. Civil Judge Lucknow
and others reported in (2007) 4 SCC 632, the Hon'ble Supreme Court has held
that once a Wakf is created it continues to retain such character which cannot be
extinguished by any act of the Mutwalli or anyone claiming through him.
However, creation of the Wakf may be questioned if it is shown that the Wakif had
no intention to create a Wakf, but had done so to avoid a liability.
25. Considering the above judgments and also evidence and pleadings,
particularly Ex.B3 and Ex.B4 and also considering the subsequent sales made
under Ex.B32 to Ex.B34, this Court is of the definite view that the Wakf was never
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existence. Though certain were charitable have earmarked in the year 1946, the
settlor continued to enjoy the property, there was no permanent dedication of the
property to the almighty; in fact he has cancelled the settlement deed also in the
year 1954 under Ex.B4; thereafter, he settled the property and based on that, the
properties have been dealt by the settlees under Ex.B32 to Ex.B.34; the sale of
those properties have not been challenged and only as against the suit house
property, which was purchased by the fourth defendant, in which the plaintiffs
were made as eo-nominee party, the plaintiffs have filed the suit. The suit was also
filed beyond the period of three years by the plaintiffs. The very conduct of the
plaintiffs, suppressing the sale made by them or their father in respect of the
properties, which were also the subject matter under Ex.A2 and claiming relief
only in respect of the property which was purchased by the granddaughter through
the first wife of the original settlor itself shows that they are not come to the Court
with clean hands. From the nature of the pleadings and evidence, this Court is of
the definite opinion that there was no permanent dedication of the suit property for
the purpose of religious charity and the settlor continued to enjoy the property.
Such view of the matter, this Court is of the view that the finding of the trial Court
that the Wakf once created cannot be cancelled cannot be sustained in the eye of
law. Accordingly, all the points are answered.
https://www.mhc.tn.gov.in/judis
A.S.No.767 of 1990
26. In the result, this Appeal Suit is allowed, setting aside the judgment and
decree in O.S.No.448 of 1986, dated 24.04.1990, passed by the learned V
Additional Subordinate Judge, Trichy. No costs.
20.06.2023
NCC : Yes
Index : Yes/No
vsm
To
1.The V Additional Subordinate Judge, Trichy.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
N.SATHISH KUMAR, J.
vsm
https://www.mhc.tn.gov.in/judis
A.S.No.767 of 1990
Judgment in
A.S.No.767 of 1990
20.06.2023
https://www.mhc.tn.gov.in/judis
