1. Dispute over recovery of possession of waqf-alal-aulad property transferred via void sales and a compromise without Board sanction under the Waqf Act. (Para 1 , 2 , 5 , 6 )
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2023 Supreme(SC) 357
SUPREME COURT OF INDIA
K.M. JOSEPH, HRISHIKESH ROY, JJ.
Sabir Ali Khan – Appellant
Versus
Syed Mohd. Ahmad Ali Khan And Others – Respondents
Civil Appeal Nos. 7086-7087 of 2009
Decided on : 13-04-2023
Advocates appeared:
For the Appellant(s) : Mr. Irshad Ahmad, AOR
For the Respondent(s): Mr. P.S. Patwalia, Sr. Adv. Mr. Gaurav Agrawal, Adv. Mr. Ejaz Maqbool, AOR Ms. Akriti Chaubey, Adv. Ms. Tanya Shree, Adv. Ms. Harshika Verma, Adv. Mr. Saif Zia, Adv. Mr. S. R. Singh, Sr. Adv. Mr. Pradeep Misra, AOR Mr. Prithvi Yadav, Adv. Mr. Gaurav Lomes, Adv.
For the Appellant(s) : Mr. Irshad Ahmad, AOR
For the Respondent(s): Mr. P.S. Patwalia, Sr. Adv. Mr. Gaurav Agrawal, Adv. Mr. Ejaz Maqbool, AOR Ms. Akriti Chaubey, Adv. Ms. Tanya Shree, Adv. Ms. Harshika Verma, Adv. Mr. Saif Zia, Adv. Mr. S. R. Singh, Sr. Adv. Mr. Pradeep Misra, AOR Mr. Prithvi Yadav, Adv. Mr. Gaurav Lomes, Adv.
Important Points
IMPORTANT POINTS
(1) Waqf property can be subject matter of acquisition of title by adverse possession – However, Mutawalli cannot acquire rights over Waqf property by adverse possession.
(2) Suit for possession of property – Transfer must be for valuable consideration – In order that there is a transfer, it must not be still born – It should not be a void transaction.
(1) Waqf property can be subject matter of acquisition of title by adverse possession – However, Mutawalli cannot acquire rights over Waqf property by adverse possession.
(2) Suit for possession of property – Transfer must be for valuable consideration – In order that there is a transfer, it must not be still born – It should not be a void transaction.
Subject
Civil Law - Waqf Law
Act Referred
LIMITATION ACT: Art.96, Art.65, S.27, S.107, Art.134(b), Art.124, S.10
RIGHT TO INFORMATION ACT: S.8(1)(e)
TRUSTS ACT: S.88, S.14
UTTAR PRADESH MUSLIM WAKF ACT: S.49(a), S.69, S.49(b)
WAQF ACT: S.52(2), S.112(3), S.3(11)
RIGHT TO INFORMATION ACT: S.8(1)(e)
TRUSTS ACT: S.88, S.14
UTTAR PRADESH MUSLIM WAKF ACT: S.49(a), S.69, S.49(b)
WAQF ACT: S.52(2), S.112(3), S.3(11)
Headnote
(A) Limitation Act, 1963 – Article 65 – Waqf Act, 1995 – Section 52(2) – Creation of Waqf property – Waqf property can be subject matter of acquisition of title by adverse possession – However, Mutawalli cannot acquire rights over Waqf property by adverse possession – Beneficiary of a Waqf cannot be described as a stranger to Waqf – In case of adverse possession, since a requirement is that possession must be hostile to real owner and since real owner is Almighty, requirement would be that such a person must has necessary animus to hold contrary to title of God – In case of a co-owner while mere assertion of title in himself may hardly suffice as possession of a co-owner is taken to be possession on behalf of all co-owners a case of ouster being successfully established would entitle co-owner to succeed. (Paras 22 and 56)
(B) Waqf Act, 1995 – Section 52 – Limitation Act, 1963 – Section 27 and Article 96 – Indian Trusts Act, 1882 – Section 14 – Suit for possession of property – Limitation – In order that a suit may fall under Article 96, there must be a transfer by a Manager which would include a Mutawalli of a Waqf – It must be for valuable consideration – In order that there is a transfer, it must not be still born – It should not be a void transaction – A void transaction would not amount to a transfer – There cannot be any embargo against a beneficiary of a Waqf claiming acquisition of title by adverse possession – Law of limitation is what prevails as on date of suit – Taking 1997 as the date on which a suit is filed, and applying the Act which enables plaintiff to disregard bar of law of limitation, it cannot mean that what stood extinguished under earlier law would revive – Beneficiary of a Waqf is endowed with rights in terms of Waqf deed – Beneficiary is not like a Trustee who assumes possession in his character as a Trustee, coming under restraint of discarding his character as Trustee and donning robes of an encroacher or a person asserting hostile title – Even in regard to a proceeding under the Act be it Section 52 if as on the date action is taken, title in property stood vested with person in possession by virtue of Section 27 of Limitation Act then it may not be permissible to ignore right which had been acquired – Appeals dismissed. (Paras 61, 63, 66, 71, 72 and 73)
Facts of the case:
Appeals are lodged against Order passed by High Court of Allahabad in Civil Revision Nos. 595 and 596 of 2003. Revisions, in turn, were directed against the Order passed by the Waqf Tribunal on an Appeal filed by the first respondent before us. First respondent again, in turn, put in issue the Order passed by Collector. Order passed by Collector was passed under Section 52(2) of the Waqf Act, 1995. Collector was acting on the basis of a requisition given by the Controller of Waqf Board to obtain and deliver possession of land in dispute to the Waqf Board. Requisition was made under Section 52(1) of the Act. By Order passed by Tribunal, it had set aside Order passed by the Collector on various grounds. By impugned Order passed by High Court in Revisions filed against Order by the appellants, High Court has affirmed Order passed by Tribunal, however, on the ground that the first respondent, in Appeals, had perfected title by adverse possession.
Findings of Court:
Article 96 has no application. Even in regard to a proceeding under the Act be it Section 52 if as on the date the action is taken, the title in the property stood vested with the person in possession by virtue of Section 27 of the Limitation Act then it may not be permissible to ignore the right which had been acquired.
Result : Appeals dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether transfers were void or voidable, applicability of Article 96 versus Article 65 of the Limitation Act, and whether beneficiaries can claim adverse possession. (Para 9 , 10 , 11 , 12 , 13 , 14 )
3. The court analyzed the nature of sales as void due to statutory breach, the distinction between void and voidable transfers for limitation, and the status of beneficiaries. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71 , 72 )
4. Void transfers do not attract Article 96 of the Limitation Act; beneficiaries can acquire title by adverse possession; Section 107 cannot revive an extinguished title. (Para 61 , 62 , 63 , 70 , 71 , 72 )
5. Appeals dismissed; the findings of the High Court regarding title by adverse possession are affirmed. (Para 73 )
6. Does Article 96 of the Limitation Act apply to void transfers of endowment property?
No. Article 96 applies to voidable transfers. A transfer that is void ab initio is not a transfer in the eyes of the law; therefore, Article 65 applies, and possession becomes adverse from the date of transfer. (Para 61 , 62 )
7. Can a beneficiary of a waqf acquire title to the waqf property through adverse possession?
Yes. Unlike a Mutawalli, trustee, or co-owner, a beneficiary does not hold the property in a fiduciary capacity that precludes them from asserting a hostile title against the real owner. (Para 55 , 56 , 63 , 64 , 65 , 66 )
8. Does Section 107 of the Waqf Act, 1995, revive a title extinguished by the Limitation Act prior to the Act's commencement?
No. Section 107 excludes the Limitation Act but cannot revive a title already extinguished under Section 27 of the Limitation Act before the Act came into force. (Para 70 , 71 , 72 )
9. Does the dedication of a small portion of income to charity prevent a waqf-alal-aulad from being considered a valid waqf?
No. If the entire property is dedicated for both secular and charitable purposes, the whole property is deemed waqf, regardless of the specific amount of income earmarked for charity. (Para 52 , 53 )
JUDGMENT :
K.M. JOSEPH, J.
1. The Appeals are lodged against the Order passed by the High Court of Allahabad in Civil Revision Nos. 595 and 596 of 2003. The Revisions, in turn, were directed against the Order passed by the Waqf Tribunal on an Appeal filed by the first respondent before us. The first respondent again, in turn, put in issue the Order passed by the Collector, Bulandshahar. The Order passed by the Collector was passed under Section 52(2) of the Waqf Act, 1995 (hereinafter referred to as the ‘Act’). Finally, we must point out at this stage that the Collector was acting on the basis of a requisition given by the Controller of Waqf Board to obtain and deliver possession of the land in dispute to the Waqf Board. The requisition was made under Section 52(1) of the Act.
2. By the Order passed by the Tribunal, it had set aside the Order passed by the Collector on various grounds. By the impugned Order passed by the High Court in the Revisions filed against the aforesaid Order by the appellants, the High Court has affirmed the Order passed by the Tribunal, however, on the ground that the first respondent, in the Appeals, had perfected title by adverse possession.
3. We have heard Shri Salman Khurshid, learned Senior Counsel on behalf of the Appellant and Shri P.S. Patwalia, learned Senior Advocate on behalf of the first respondent and Shri S.R. Singh, learned Senior Advocate on behalf of the second respondent-the Assistant Survey Commissioner, Waqk, Bulandshehar and the fourth respondent-the Collector, Wakf, Bulandshehar.
FACTS
| Syed Mohd Akbar Ali Khan | |||
| Qasim Ali Khan | Syed Qasim Ali Khan | Syed Raza Ali Khan | |
| Sayeed Shujat Ali Khan | Sajjad Ali Khan | Syed Mohd. Ali Khan (Respondent No.1) | Mohd Ahmed Ali Khan (Respondent No.1) |
5. Parties are Shia Muslims. Mohd. Akbar Ali khan purported to create a waqf-alal-aulad by a deed dated 26.07.1934. He appointed himself as a first Mutawalli. However, he purported to execute a sale deed in the year 1948 in respect of a tube well and some adjoining land. Qasim Ali Khan, one of the sons of Akbar Ali Khan, filed OS No. 1 of 1950 impugning the sale deed. The trial court decreed the said suit and the decree was affirmed by the High Court by its judgment rendered on 11.07.1962. The High Court in the course of its Judgment did hold that, Akbar Ali Khan had created a valid and effective waqf as required of a Shia Muslim which he was. On 16.12.1958, Akbar Ali Khan passed away. He left behind him three sons, Qasim Ali khan, Kazim Ali Khan and Raza Ali Khan. It appears that Qasim Ali Khan took over as the Mutawalli. His name was entered in the register of waqf. However, his younger brothers, i.e., Kazim Ali Khan and Raza Ali Khan got their names mutated in the Revenue Records as Bhumidhar in regard to the property. This led to the second suit again by Qasim Ali Khan, i.e., OS No. 421 of 1959. He sought a declaration that the plaint schedule property was a waqf property. He further sought the relief of expunging the names of his two brothers. The said suit was decreed in favour of the plaintiff on 21.05.1962. Mohd. Kazim Ali Khan on 14.10.1960 during the pendency of the suit transferred his alleged one-third share to Mohd. Ahmad Ali Khan who was his nephew being the son of Raza Ali Khan. This shall be referred to as the first sale.
6. After a remand in an Appeal, when the Suit was pending, consolidation proceedings began in the village. Under the law, the Suit was to stand abated. The Suit stood abated. Shri Qasim Ali Khan filed objection seeking expunging of the names of the other sons, viz., his brothers. This was done on the basis that the properties were waqf properties. The Consolidation Officer accepted the objection. He directed that the entry of waqf be made in the Revenue record. It was his reasoning that upon the creation of the waqf, properties stood vested in the Almighty and the first sale was infirm. The Appeal filed by Shri Kasim Ali Khan and Shri Raza Ali Khan
