TAMIL NADU WAKF BOARDversusHATHIJA AMMAL (DEAD) BY LRS. ETC. ETC.

A                         TAMIL NADU WAKF BOARD
                                           V.
                HATHJJA AMMAL (DEAD) BY LRS. ETC. ETC.

                                 AUGUST 31, 2001

B               [S. RAJENDRA BABU AND S.N. VARIA VA, JJ.]


          Wakf Act, 1954 :

          S. 5(2) and 27-Pub/ic Wakf-Property not included in Notification
C published under s.5(2)-Nor Wakf Board followed procedure laid down in
    s.27-Wakf Board filing suit for recovery of possession-Held, Wakf Board
    had no right to file such a suit-If Wakf Board has reason to believe that a
    particular property is a Wakf property, it can itself collect information and
    decide whether the property is a Wakf property or not and such decision of
D   Wakf Board shall be final unless reviewed or modified by civil court-It is
    only thereafter that suit for possession could have been filed by Wakf Board.

            The appellant-Wakf Board filed suits for recovery of possession of suit
    property on the ground that one 'KM' had dedicated under a registered deed
    the suit property for several charities named in the deed; that the founder
E   appointed himself as Muthawalli and thereafter nominated his son and after
    him the head of his family to manage the properties and utilize its income
    <':ily for charitable and religious purpose; that the deed also put restraint
    against alienation or transfer of the properties dedicated in favour of Thaikkal.
    The defendants contended, inter alia, that suit property was not covered by
    the notification issued by the Wakf Board under section 5(2) of the Wakf Act,
F   1954; that the suit property had been sold to the purchaser in revenue auction
    and as such the character of the suit property had changed. The trial court
    held that the suit property was a public wakf, but the notification under section
    5(2) of the Act did not include the suit property and, therefore, the Wakf
    Board could not recover possession of the same. The appeals filed by the Wakf
G   Board were dismissed by the first appellate court and second appeals were
    dismissed by the High Court. Aggrieved, the Wakf Board filed the present
    appeals.

             Dismissing the appeals, the Court

          HELD : l.     The High Court has rightly held that in view of the scheme
H                                         428
             TAMIL NADU WAKF BOARD v. HATHIJA AMMAL [RAJENDRA BABU, J.]           429

      of the Wakf Act, 1954, the Wakf Board had no right to institute a suit for          A
      declaration that any property is a wakf property. A finding of fact has been
      recorded by the trial court and affirmed in appeal 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 tha( a suit for possession could have been filed     B
      by the appellant. (431-E; 432-A, B]

...         2. In the evert any property has been omitted, by inadvertence or
      otherwise, then it is for the Wakf Board to take action as provided under
      section 27 of the Act. If the WakfBoard has reason to believe that a particular
      property is a wakf property then it can itself collect information and if any       C
      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.
                                                                          (431-C, DI
                                                                                          D
          Sayyed Ali and Ors. v. A.P. Wakf Board, Hyderabad and Ors., (1998) 2
      sec 642, referred to.
           CIVIL APPELLATE JURISDICTION                   Civil Appeal Nos. 9768-
      9776 of 1995.
                                                                                          E
            From the Judgment and Order dated 19.8.88 of the Madras High Court
      in S.A. Nos. 447, 448, 449, 450, 451, 1820, 1822 and 1823of1981.

            Ms. Shobha and S.K. Mehta for the Appellant.

            The Judgment of the Court was delivered by                                    F
             RAJENDRA BABU, J. The appellant brought nine suits on the basis
      that one Kallakattu Bava Sahib Marcayar had dedicated under a registered
      deed the suit properties for several charities named in the deed; that the
      founder had constituted himself as the Muthawalli and thereafter appointed
      his son Dawood, Batch Mohideen and after him the Manager (heads) in his             G
      family to manage the properties and utilise its income only for charitable and
      religious purpose and not for personal benefit; that the deed also put restraint
      against alienation or transfer or otherwise of the properties dedicated in favour
      of Thaikkal by the defendants of the founder; that Batch Mohidcen died in
      the year 1935 leaving behind two sons and three daughters, who iJartitioned         H
    430                    SUPREME COURT REPORTS (2001] SUPP. 2 S.C.R.

A   the trust property among themselves; that Wakf Board, on being constituted
    in the year 1954, survey was made and a notification as provided under
    Section 5(2) of the Wakf Act, 1954 [hereinafter referred to as 'the Act'] was
    published in the gazette on 24.12.1958 that the suits were file by the appellant
    for recovery of possession of the suit property and for future mesne profits
B   till delivery of possession with costs.

          On behalf of the respondents it was contended that the Wakf Board is
    not the legal representative of the founder; that the charity in question is not
    a public wakf, a very small amount was required to be spent for charities and
    rest of the income was intended for benefits of the heris only; that the
C   notification issued under Section 5(2) of the Act is illegal and invalid; that
    the suit property is not covered by the notification issued under Section 5(2)
    of the Act; that the suit property had been sold to the purchaser in the
    revenue auction and, therefore, the character of the suit property had changed;
    that they had perfected the title by way of adverse possession; and that the
    suits is hopelessly barred by time.
D
          By a common judgment and decree, the Trial Court held that the suit
    property is a public wakf and not a private wakf and the notification dated
    24.12.1958 issued under Section 5(2) of the Act did not include the suit
    property and hence the appellant cannot recover the possession of the suit
    property. The First Appellate Court affirmed this common judgment and
E   decree. The First Appellate Court held that in the absence of proper notification
    nder Section 5(2) of the Act that the suit properties are wakf properties, the
    appellant cannot succeed in the suit for recovery of possession on the ground
    that the suit properties have been notified as wakf properties under Section
    5(2) of the Act and that notification has become final.
F
          The High Court dismissed the second appeal filed against the said order
    made by the First Appellate Court. In the High Court, a question was raised
    as to whether the suit properties had retained the character of public wakf
    properties inasmuch as the wakf was created as early as in 1879. The
    appellant's case itself was that the heirs of the dedicator had executed sale
G   deed in respect of the suit properties in favour of strangers and some properties
    had been brought to sale in the revenue auction and the defendants had also
    pleaded prescription of title by adverse possession. In this background, the
    High Court felt that unless procedure under the Act is not followed the right
    of the appellant for possession cannot be given.

H         Let us now examine the provisions of the Act. Under Section 5(2) of
       TAMIL NADU WAKF BOARD v. HA THIJA AMMAL [RAJENDRA BABU, J .]         43 J
the Act after a property is notified to be wakf property, a determination is        A
made by a Civil Court whenever any dispute arises after the notification is
published by the Wakf Board as to whether a particular property specified as
wakf property in a list published is a wakf property or not. Section 6 further
provides that the Civil Court shall not entertain any such suit after the expiry
of one year after the date of publication of the list by the Board. Such a suit     B
cannot be at the instance of the Wakf Board. Again, the Board may itself
collect information regarding any property as provided under Section 27 of
the Act and decide whether a particular property is wakf property or not and
that decision is final unless it is revoked or modified by a Civil Court.

      In the event, any property has been omitted by inadvertence or otherwise, C
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 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 D
action has not been taken by the Wakf Board in this case,         --

      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         E
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            p
affirmed by the First Appellate Court.

       Ms. Shobha, learned counsel for the appellant, drew our attention to the
decision of this Court in Sayyed Ali and Ors. v. A.P. Wakf Bootd. Hyderabad
and Ors., (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   G
of property and once a wakf, it will always be a 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               H
    432                    SUPREME COURT REPORTS (2001] SUPP. 2 S.C.R.

A 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
                                                                                      -
B   appellant. There is no answer to this finding.

           We think there is no good reason for us to interfere with the order made
    by the High Court. These appeals shall stand dismissed accordingly. No
    costs.

C R.P.                                                         Appeals dismissed.