In Tamil Nadu Wakf Board vs Larabsha Darga, Panruti (Civil Appeal No. 1559 of 2007, decided on November 23, 2007), the Supreme Court of India held that where property income is dedicated partially for religious and charitable purposes and partially for family maintenance, the dedication constitutes a private wakf, specifically a Wakf alal aulad under Section 3(l) of the Wakf Act. The division bench ruled that the state board possesses no statutory jurisdiction to supplant hereditary mutawallis or disregard recorded family settlement documents.
Supreme Court Bench and Appellate Case Summary
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Justices Tarun Chatterjee and P. Sathasivam
Civil Appeal No. 1559 of 2007
Date of Judgment: November 23, 2007
Petitioner: Tamil Nadu Wakf Board
Respondent: Larabsha Darga Panruti
Judgment of the Court Delivered by Justice P. Sathasivam
1) This appeal is preferred by the Tamil Nadu Wakf Board represented by its Chief Executive Officer, Chennai against the final judgment dated June 25, 2004 and decree dated June 28, 2004 passed by the High Court of Judicature at Madras in Second Appeal No. 641 of 1996, whereby a learned Single Judge of the High Court allowed the second appeal, reversing the judgment and decree of the first appellate court and restoring the judgment and decree of the trial court.
2) The facts which are necessary for the disposal of this appeal are as follows:
Originally the suit property was Wakf property being a part of a Wakf property belonging to one Noor Mohammedsha Aulia Darga. One Bahadursha, the 5th Janishan of Noor Mohammad Shah Khadari Darga, Panruti conveyed the suit property to his disciple Shabansha and he was in possession and enjoyment of the same through his disciple Larabsha. Larabsha conveyed the suit property to his wife Kathija Bi under a settlement deed dated March 22, 1939. In the settlement deed it was stated that she should look after the Darga and the properties, perform poojas and other charities and enjoy the properties without power of alienation and after her lifetime, her male descendants should perform the said charities and enjoy the properties. Kathija Bi was in possession and enjoyment of the suit properties. She was managing the Darga and performing charities. Kathija Bi had one son, namely Syed Magdoom, who predeceased her. Syed Magdoom had a daughter by name Safia Bi. Kathija Bi executed a settlement deed on August 16, 1948 in favour of her granddaughter Safia Bi under which she gifted the suit property to Safia Bi. In the settlement deed, Kathija Bi had stated that Safia Bi should take possession of the properties, perform poojas and charities, enjoy the properties without power of alienation and after her, her descendants should perform the charities and enjoy the properties. Safia Bi was in possession and enjoyment of the properties and performed the poojas and charities till her death on August 8, 1985. Safia Bi died issueless.
The first plaintiff Heeralal and the second plaintiff Kalilal Basha are the descendants of Kathija Bi and Larabsha. Safia Bi and her husband brought up the plaintiffs under their paternal care and custody. During the lifetime of Safia Bi, she executed a Will dated May 21, 1982 in favour of the plaintiffs. In the Will, she has stated that the plaintiffs should manage the Darga, perform poojas and charities, enjoy the income from the properties without power of alienation and after their lifetime, their male descendants should perform the charities. The plaintiffs performed the last rites of Safia Bi and they are in possession and enjoyment of the suit properties. The plaintiffs sent a petition to the Tamil Nadu Wakf Board intimating the death of Safia Bi and the execution of the Will in their favour. The Wakf Board, by its order dated February 20, 1987 in Item No. 68/86, rejected the petition of the plaintiffs and appointed the Executive Officer of the Wakf Board as the Executive Officer of Larabsha Darga. The plaintiffs filed a suit O.S. No. 20 of 1992 on the file of the Subordinate Judge, Cuddalore for a declaration that Larabsha Darga is a private Wakf / Wakf-alal-aulad, that the plaintiffs are the hereditary Muthavallis of the Darga and for permanent injunction restraining the defendant Wakf Board from interfering with their peaceful possession and management of the Darga and its properties.
Submissions of Counsel and Contentions on Res Judicata
3) Heard Mr. J.M. Khanna, learned counsel appearing for the appellant Tamil Nadu Wakf Board and Mr. P.S. Misra and Mr. K. Samidurai, learned senior counsel appearing for the respondents.
4) Mr. J.M. Khanna, learned counsel for the appellant Tamil Nadu Wakf Board mainly contended that in view of the decision in earlier proceedings, the present claim of the plaintiffs that the suit property is a private Wakf is hit by the principles of res judicata. He also contended that the judgment in Second Appeal No. 1104 of 1983 dated March 25, 1991 clearly shows that the suit property is a Wakf property and not a private Wakf property. On the other hand, learned senior counsel appearing for the respondents submitted that in the earlier proceedings, the plaintiffs therein claimed that the suit property is a private trust property and not a Wakf property. He also submitted that the High Court in Second Appeal No. 1104 of 1983 held that the suit property is a Wakf property and not a private trust property. He further submitted that there was no occasion for the court to consider whether the suit property is a private Wakf or a public Wakf in the earlier proceedings. He highlighted that based on the acceptable evidence, particularly Ex. A-1 and Ex. A-2 and the recitals and objects therein, the plaintiffs had proved their case that the suit property belongs to Wakf-alal-aulad and the trial court rightly decreed the suit, though the lower appellate court wrongly concluded that it belongs to Wakf property and the High Court allowed the appeal and restored the decree of the trial court. Similar judicial considerations governing the limits of appellate interference were examined alongside appellate review principles in Narendra Vs. K. Meena to ensure statutory integrity.
Family Genealogy and Trial Court Proceedings
5) In order to understand the dispute raised, it is relevant to refer to the genealogy of the family of late Larabsha referred to in the plaint in O.S. No. 20 of 1992 on the file of the Subordinate Judge, Cuddalore:
Larabsha (Husband - Died) married Kathija Bi (Wife - Died). From their wedlock was born Syed Magdoom (Son - Died), who fathered Safia Bi (Daughter - Died on August 8, 1985, issueless). From the collateral branch descended Sainath Syed Ali (Died), whose sons are Khaleel Basha (Second Plaintiff) and Heeralal (First Plaintiff).
The plaintiffs therein prayed for a decree declaring that Larabsha Darga and its properties described in the schedule appended to the plaint are a private Wakf / Wakf-alal-aulad. They also prayed for a declaration that Hiralal and Kalilal Basha (plaintiffs) are the hereditary trustees of Larabsha Darga and also prayed for permanent injunction. The learned trial Judge, after considering the relevant materials both oral and documentary, particularly on the basis of Ex. A-1 and Ex. A-2, granted a decree as prayed for in favour of the plaintiffs. In the appeal, namely A.S. No. 206 of 1993 on the file of the District Court, Cuddalore filed by the Tamil Nadu Wakf Board, the appellate Judge, basing reliance on the earlier judgment of the High Court in Second Appeal No. 1104 of 1983 (Ex. A-3), accepted the stand of the Wakf Board and concluded that the suit property is a Wakf property and not a private Wakf-alal-aulad as claimed by the plaintiffs. The said decision was taken up to the High Court by way of Second Appeal No. 641 of 1996 by the plaintiffs. The High Court framed the following substantial question of law:
Whether the lower appellate court had failed to consider the absence of a specific plea of denial in the written statement that the said Darga is not a private Wakf?
Based on the same, the High Court heard arguments on either side and finally by the impugned judgment allowed the appeal and restored the decree of the trial court. In the light of the controversy between the parties by way of suits, first appeals, and second appeals, we verified the reliefs prayed in the earlier proceedings, the stand taken by both parties, and the ultimate decision including the one taken by the High Court in Second Appeal No. 1104 of 1983. In evaluating whether earlier litigations barred the present claim, the court noted how jurisdictional facts prevent procedural estoppel seen in K. S. Sethi v Punjab and Sind Bank from operating against established statutory entitlements.
Statutory Definition Under Section 3(l) of the Wakf Act, 1954
6) Section 3(l) of the Wakf Act, 1954 defines wakf as under:
(l) wakf means the permanent dedication by a person professing Islam or any other person of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable and includes:
(i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;
(ii) grants including mashrut-ul-khidmat, muafies, khairati, qazi services, madadmash for any purpose recognized by the Muslim law as pious, religious or charitable; and
(iii) a wakf-alal-aulad;
and wakif means any person making such dedication;
Provided that in the case of a dedication by a person not professing Islam, the Wakf shall be void if, on the death of such person, any objection to such dedication is raised by one or more of his legal representatives;
Analysis of Proforma Register Ex. A-22 and Official Entries
The plaintiffs claim that the suit property belongs to a private Wakf, Wakf-alal-aulad, and that it is not a public Wakf. On the other hand, it is the specific stand of the Wakf Board that the same is a public Wakf. As said earlier, the High Court heavily relied on Ex. A-22, which is a proforma maintained by the Wakf Board. The learned Single Judge extracted all the details and entries made in the proforma. Those details are available in the High Court judgment and we perused the same. It mentions that the object of the Wakf is for the support of feeding the fakirs and lighting the tomb of Larabsha and to do fateah. It further shows that these services are to be rendered without alienating the properties. The name of the beneficiary is noted as Mrs. Safia Bi, wife of Syed Umar, Larabsha Darga. In column 9, the rule of succession, it is stated as hereditary as per T.D. It further shows that out of the income derived from the suit property, a portion of the same is meant for pious, religious, and charitable purposes, and the remaining was used for the maintenance of the family.
Column 17 of the remarks in Ex. A-22 states that originally R.S. No. 24, 2.05 acres dry belonged to Nur Mohammed Dargah, Panruti. One Inayath Shah, a sixth successor Janishin, conveyed this land containing houses and shops to one of his disciples Shabansha by means of settlement (Hibba) in 1939. This Shabansha, in his turn, made a settlement in favour of Larabsha, who is the paternal grandfather of the husband of Safia Bi, who is now enjoying the lands. No accounts are maintained. Only Fateah is done on every Thursday evening and the tomb is lighted daily. At present Safia Bi is the Muthavalli. A few rupees are spent for the Dargah and the balance is utilized for the maintenance of the family. The above details furnished in the proforma clearly reveal that succession to the office of Muthavallis is by hereditary succession, and the income has got to be spent for pious, religious, and charitable purposes, and a portion was also used for the management and maintenance of the family.
Distinction Between Private Wakf vs Public Wakf
7) As rightly observed by the High Court, inasmuch as a portion of the income is to be spent for the family apart from pious, religious, and charitable purposes, it satisfies the character of a private Wakf, that is, a Wakf-alal-aulad. The said document, namely Ex. A-22, also supports the claim of the plaintiffs that they are entitled to hereditary mutawalli appointment and succession in the private Wakf. The critical legal boundary separating a private wakf vs public wakf rests on whether the founder intended to create an exclusive public dedication or reserved beneficial enjoyment for lineage descendants alongside religious observances. Where the settlement deed and official survey records establish that only specified ceremonial expenses are directed to the tomb and the remaining usufruct sustains the founder family, the dedication remains private in character under Muslim law.
These aspects have been fully considered and rightly concluded by the trial Judge as well as the High Court. On the other hand, as rightly pointed out by learned senior counsel for the respondents/plaintiffs, the lower appellate court, misconstruing the decision in Second Appeal No. 1104 of 1983, wrongly allowed the appeal. As observed earlier, in Second Appeal No. 1104 of 1983, the High Court had no occasion to consider whether it is a private Wakf or a public Wakf. On the contrary, in the earlier suit, the plaintiffs claimed the suit property as their absolute private secular property and not as private Wakf property. Only in that circumstance did the High Court in Second Appeal No. 1104 of 1983 render the finding that the suit property is a Wakf property and not a private secular trust property.
Inasmuch as upon appreciation of acceptable material, the trial court as well as the High Court arrived at a finding of fact that the suit property is a private Wakf and not a private secular property, we are in agreement with the conclusion of the High Court that the decision in Second Appeal No. 1104 of 1983 has no bearing on the issue in the later proceeding. The High Court also rightly concluded from Ex. A-1 that there is no indication that the Wakf is a public Wakf. The Hibba only indicates that certain things have got to be carried out in respect of pious, religious, and charitable purposes, and proforma Ex. A-22 firmly supports the claim of the plaintiffs. Looking at the case from any angle, in the light of the materials placed, particularly additional documents Ex. A-22, Ex. A-23, and Ex. A-24 which were received on the basis of an application ordered on April 20, 2004, we are in entire agreement with the conclusion arrived at by the High Court and do not find any valid ground for interference.
Supreme Court Dismissal of Appeal and Operative Orders
8) In the light of the above discussion, the appeal fails and the same is dismissed. There shall be no order as to costs.