1993 Supreme(AP) 378

Andhra Pradesh High Court
Judges : B.SUBHASHAN REDDY, M.N.RAO
Abdul Latif Sahib - Appellant
Versus
Shaik Dastagir Sahib - Respondent
Decided On : 08-12-93

Headnote:

INAM - Nature of grant - Suit properties are inam lands granted in favour of an institution - Golconda Peer Mazjid - and the successors of Shaik Ali were only entitled to be in possession the suit properties and enjoy the same in the proportion mentioned above subject to their rendering services in accordance with the entries made in the Inam Fair Register, Ex. B-2.

Fact of the Case:

The suit properties are situate in ramanayapalem village, near Cherukuru, Chirala taluk, Ongole District. In Fasli 1221 (1812), one Raja Venkata Krishna Rao granted an inam comprising the suit properties in favour of one of the ancestors of the parties to the suit. The grant is covered by two title deeds - Nos. 231 and 232 - for Ac. 16-00 and Ac. 64-80 cents of land respectively. The plaintiffs' case is that the plaint schedule properties were "personal grants in favour of Shaik Ali and his successors only burdened with performing Muharram festival in the private chavidi constructed by Shaik Ali at Cherukur." Shaik Ali had no children but he had two brothers - Hasan Ahmed and Mohammed Khaja Subedar. Hasan ahmed had no children and Mohammed Khaja Subedar had one son by name gafoor Ali. The two sons of Gafoor Ali were Hasan Ahmed and Mohd. Khaja. Shaik Ali brought up a girl and got her married to one Mohiuddin, his brother-in-law. He also brought up Gafoor Ali, his elder brother's son. He nominated - during his life time - Gafoor Ali and Mohiuddin to perform muharram at Cherukur from out of the income of the suit schedule properties and enjoy the rest of the income. Pentu Sahib was the son of Mohiuddin: after the death of Gafoor Ali, his two sons - Hasan Ahmed and Mohd. Khaja - and pentu Sahib, son of Mohiuddin, enjoyed in three equal shares the income out of the plaint schedule lands contributing equally for the expenses of Muharram. After the death of Pentu Sahib, his son Peda Khaja succeeded to his share and after his death, his widow, Chettabi, Hasan Ahmed and Mohd. Khajaenjoyed the lands in three equal shares performing Muharram festival. They leased out the lands, borrowed monies in times of need and discharged the debts contracted for the purpose of celebrating Muharram. Hasan Ahmed died in 1938 surviving him the two plaintiffs (his grand-children ). Chettabi - it was claimed -brought up Mohd. Kasim, the father of the plaintiffs, and after Mohd. Kasim's death in 1932, the plaintiffs continued to stay with Chettabi taking care of her. She executed a gift deed dated 19-12-1938 in favour of the first plaintiff represented by his mother - Amir bi-as his guardian settling upon him her private property and also her 1/3rd share (Ac. 26. 84 cents) in the plaint schedule properties "being her joint undivided right". The plaintiffs, therefore, claimed in their own right a share in the plaint schedule properties as the grand-children of Hasan Ahmed, nephew of the original grantee - Shaik Ali - and in addition, the first plaintiff claimed 1/3rd share in the plaint schedule properties on the basis of the gift deed, ex. A-1, executed by Chettabi.

Finding of the Court:

The suit properties are inam lands granted in favour of the and institution - Golconda Peer Mazjid - and the successors of Shaik Ali were only entitled to be in possession the suit properties and enjoy the same in the proportion mentioned above subject to their rendering services in accordance with the entries made in the Inam Fair Register, Ex. B-2; The suit properties are not liable to partition; The earlier judgments relating to the suit lands do not constitute res judicata ; and The gift deed, Ex. A-1, executed by Chettabi, although true, is not valid.

Issues: None

Ratio Decidendi: The entries in the Inam Fair Register considered by the Division Bench in the aforesaid case bear closer similarity to the entries in the Inam Fair Register in question. In that case, the Inam Fair Register described the grant as devadayam for the celebration of the festival of Peerlu at Ongole and Column No. 21 incorporated the words "the inam can be confirmed permanently so long as the service is performed". The grant was made in favour of one Mashum Shah stating: "this inam is confirmed to you and to your successors tax-free to be held without interference so long as the conditions of the grant are duly fulfilled". Holding that the property was wakf property but not personal property, the Division Bench held:"it is, therefore, not a personal grant in the sense that it will be inheritable according to Muslim law but is a wakf, and Mashum Shah and his successors are nominated as Mutawallis."the Division Bench after examining the concept of "wakf", and its meaning in islamic Law stated the legal postition as to the nature of the wakf property:"what is plain is that the motive in wakf is usually religious and its foundation endowed in perpetuity. In the eye of the law, the wakf property belongs to God and as such the dedication is both permanent and irrevocable. The property is detained or immobilished and no further transfers can be effected. The wakf property cannot thus be alienated by human beings for their own purposes. The wakf property is not alienable is the general rule."the Division Bench also ruled that a Muthawalli is only a Manager or a superintendent of the property and is not a trustee and that the wakf property does not best in him; it belongs to the Almighty God. The performance of moharrum is done by a-Muthawalli but not by a Muzavir and that can be performed by women also. On the question as to how succession is regulated in respect of wakf property, the view expressed by the Division Bench was:"once it is found that it is a wakf property and the position of Mashum shah and his successors is that of Muthawalli, then the succession to that office shall be governed by the rules prescribed by the dedicator in the grant. Since it is not a private property of Mashum Shah and his successors, the principles of Muhammadan Law applicable to succession of such private property are not applicable to the succession of a Mutha walliship."in view of the foregoing, we hold that the suit properties were inam grants in favour of the institution - Golconda Peer Mazjid. They were not personal grants but they constitute a valid wakf. Being inam grants in favour of the institution, shaik AH and his successors were only Managers but not trustees. The suit properties, therefore, were not liable to partition.

Final Decision: The letters patent appeal is accordingly allowed, the judgment and decree granted by the learned single Judge in A. S. No. 475 of 1977 is set aside and the decree of the trial court dismissing the suit- O. S. No. 48 of 1971 - is sustained, although for different reasons. No costs.