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1985 Supreme(AP) 55
Andhra Pradesh High Court
Judges : A.RAGHUVIR, P.KODANDA RAMAYYA
Mannam Thirupathiswamy - Appellant
Versus
A.P. WAKF BOARD, M.FAZNLLAH SHERIFF - Respondent
A.S.No.769/75 etc.
Decided On : 02-06-85
Advocates Appeared :
M/s. H.V.S.R. Gopalakrishnamacharyulu,Mr. P. Ananthasen Rao, Mr. P. M. Gopalrao, Mr. Mirza Munwer Ali Beig,Mr. Khader Ali Khan,Mr. Syed Sadatulla Hussaini, Mr. K. Siva Reddy, Mr. K. Jwala
Headnote:WAKF ACT, 1954, Secs. 3(1)(ii) and 66(C) and Government Giants Act, 1895, Section 3 - Inam grants-by Hindu Raja to Peerla Chavidi is not personal grant but it is a service grant made for the purpose of celebration of Peerlu - Dedication for the performance of Muharram festival is valid - Wakf coming under clause (ii) of Sec.3(1) is not required to be made by a person professing Islam -Service grants covered by clause (ii) of Sec.3(1) constitute Wakf property - So long the grant subsists, it will constitute a Wakf Authorities under Inams Abolition Act cannot determine the question of title of Wakf but the Civil Court can decide it.
Held: In this case it is not stated in the inam fair register that grant was to be confirmed in favour of individual and hence this grant cannot be construed to be a grant to a person. The grant in question is not a personal grant but it is a service grant made for the purpose of celebration of peerlu at Ongole. The grants made by a Hindu Ruler clearly shows that it is a public wakf. There is no legal impediment to hold that the dedication for t he performance of Moharrum festival is valid and it is for the purpose recognised by Muslim law as pious, religious and Charitable.
Section 3(1) of the wakf Act in its main definition embodied the principle that the dedicator must profess Islam. However the enlarged definition in respect of grants which are inam grants has dispensed with the same as these grants are not made by ordinary individuals but sovereign authority, as such grants must necessarily involve concession of a cist either totally or partially. Further such grants can be made only by rulers. It is clear that the grants made by a sovereign cannot be treated as a grant by a person professing a particular faith. Further grants confirmed by the State must be treated on par with grants made by the State and there is no need to prove who made the original grant. The enlarged definition in clause (ii) of Section 3(1) of the Wakf Act is intended to govern the Inam Grants either made, confirmed or recognised by the Government. They are grants made by the Government and were known previously as crown grants. The grants made by such sovereign authority cannot be describe as a grant made by an ordinary individual or a person within the meaning of main definition and hence the requirement that the grantor should profess Islam has no application in respect of the grants coming under clause (ii) of Section 3(1) of the Wakf Act.
The dedication was already made by the original grantor but they were confirmed by the present ruler. So long as the grant continues it constitutes a wakf within the meaning of the wakf Act. The fact that the concession now given by the State can be withdrawn or resumed is not a ground to hold that the grants so made cannot constitute wakf. So long the grant subsists it will constitute a wakf in view of the overriding effect of Section 3 of the Government Grants Act.
The authorities under the Inams Abolition Act cannot determine the question of title and once the High Court holds that the ianam is not a grant to a person, the appellants cannot claim any title to the property and they are liable to be removed from possession under the provisions of Inams Abolition Act.
A.I.R. 1980 A.P. dismissed from, Appeals Dismissed.
( 1 ) THE main point for determination in these appeals is whether the Inam grants in question constitute wakf property within the meaning of the Wakf act 29 of 1954; (herein after called the act ).
( 2 ) THE Andhra Pradesh Wakf board is the plaintiff in 0 S No. 63/67 on the file of the Subordinate Judge s court, Ongole for the recovery of plaint schedule property consisting of two items situated in Pernamitta and Kolachanakota villages of an extent of Acs. 18-88 cents and Acs. 8-96 cents respectively. The plaint case is that the property in question was endowed for the support and service of Ashurkhana in the village of Ongole and the defendents are the alienees of the wakf property and the plaintiff is entitled to recover the property as the alienations are void.
( 3 ) THE defence is that the property in question is not wakf prpperty but they are personal inams granted to the ancestor of the defendant s vendors and they also perfected their title by adverse possession and hence the suit is liable to be dismissed.
( 4 ) THIS suit is tried along with 0 S No. 300/70 filed by one Syed Ali who claims to be the descendent of the original grantee. The subject matter of this suit is the two items covered by O S no. 68/67 and Acs. 7-31 cents and Acs. 20-68 cents situated in Ongole and Acs. 10-18 cents situated in Hanumapuram nidamanur and also Peerlachavidi and a tiled house situated thereon at Ongole. The allegations in the plaint so far this case is concerned are as follows : -
( 5 ) THE property mentioned in the plaint schedule was given by Hindu Raja, to the plaintiff s father and other sharers for celebrating the Muharram festival and other festivals of Peerlu at Rajagiri peerlu chavidi of Ongole and they constitute the private property of the plaintiffs family and other sharers and the Wakf board has no juri diction in respect of this property and it has no jurisdiction to demand any contribution or accounts from the plaintiff and other sharers.
( 6 ) THE Wakf Board was added as 1st defendant and defendents 2 to 6 are the sharers along with plaintiff and D7 to d2o are the alienees from different sharers and the suit is laid for a declaration that the suit property is not wakf property and the plaintiff and defendants 2 to 6 are entitled to divide the property between themselves and for a decree for partition of the suit property into sixteen shares and allotting 1/16th share to the plaintiff.
( 7 ) BY consent of parties both the suits were tried together and the trial court held that the property in question is wakf property and consequently decreed 0 S 63/67 and dismissed O S 300/70 A S 769/75 is filed against the judgment and decree in O S 63/67 by defendants 1, 5, 10, 19, 20 and 22 and defendants 8 and 9 filed separate appeal a S 791/76 against the same judgment. Tr. A S 1104/81 is filed by the plaintiff in O S 300/70, We heard all the appeals together as they arose out of common judgment.
( 8 ) WE heard Sarvasri P M Gopala rao, Mirza Munwwar Ali Baig, M Bala subrahmanyam and N V S R Gopala krishnamacharyulu in support of these appeals. They raised the following contentions : (1) The inam grants in question are personal inams burdened with service and constitute private property but no wakf property. (2) The celebration of Muharram festival is against the tenets of Mohammedan law and hence there is no valid dedication to constitute a wakf. (3) The grants in question were made by Hindu Raja, a person not professing islam and hence the property cannot constitute a wakf property. (4) Inam grants cannot constitute wakf as the inams can always be resuma We by the grantor. (5) The proceedings under the inams Abolition Act are binding on the wakf Board and the same cannot be canvassed in a civil court.
( 9 ) IT is also urged that the burden is on the Wakf Board to prove that all the elements to constitute a wakf as defined under Sec. 3 (1) of the Act are satisfied, and the Wakf Board has failed to do so and hence
