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High Court Of Calcutta
BHAGAWATI PRASAD BANERJEE
MURRAY AND CO.PVT.LTD. - Appellant
Versus
BOARD OF WAKFS - Respondent
Matter 4535 Of 1988
Decided On : 07/13/1989
WAKF - EXCHANGE OF WAKF PROPERTY - VALIDITY - S. 41 OF ADMINISTRATION OF EVACUEE PROPERTY ACT, 1950 - WRIT PETITION - MAINTAINABILITY - RIGHT, TITLE AND INTEREST IN PROPERTY - ADVERSE POSSESSION - NATURAL JUSTICE - JURISDICTION OF COURT.
Fact of the Case:
The petitioner, a company, and its director filed a writ petition seeking a writ of mandamus and/or an order of certiorari to restrain the respondents from treating the premises in question as a part of any Wakf Estate and to withdraw any permission or sanction granted in respect of the said property. The petitioners claimed that the premises were exchanged for a property in Aurangabad, Bihar, pursuant to a Deed of Exchange executed by the Wakifa, and that the premises in question ceased to be wakf property and became the absolute property of the petitioner company.
Finding of the Court:
The court found that the premises in question were part of a Wakf created by the Wakifa, and that the Wakfnama expressly authorized the mutwalli to transfer the wakf properties. The court also found that the Deed of Exchange was executed at a time when the Gaya property was vested in the Custodian appointed under the Administration of Evacuee Property Act, 1950, and that the transfer of the property was void under S. 41 of the Act.
Issues: 1. Whether the Deed of Exchange was valid and effective to transfer the premises in question from the Wakf Estate to the petitioner company? 2. Whether the writ petition was maintainable in light of the petitioner's failure to establish a legal right to the property? 3. Whether the court had jurisdiction to decide the question of title in a writ petition.
Ratio Decidendi: 1. The court held that the Deed of Exchange was void and ineffective to transfer the premises in question from the Wakf Estate to the petitioner company because the Gaya property was vested in the Custodian appointed under the Administration of Evacuee Property Act, 1950, at the time of the transfer, and the transfer was made without the previous approval of the Custodian, as required by S. 41 of the Act. 2. The court held that the writ petition was not maintainable because the petitioner failed to establish a legal right to the property. The court noted that the petitioner claimed title to the property based on the Deed of Exchange, but that the Deed of Exchange was void and ineffective. The court also noted that the petitioner did not plead adverse possession or any other basis for claiming title to the property. 3. The court held that it had jurisdiction to decide the question of title in a writ petition, but that it would not do so in this case because the petitioner had failed to establish a legal right to the property.
Final Decision: The court dismissed the writ petition.
( 1 ) THIS writ petition was moved by the petitioner No. 1 who is the Company and the petitioner No. 2 who is the Director of the petitioner company praying for- a) A writ in the nature of Mandamus and/or order or direction of like nature commanding the respondents Nos. 1 and 2 to forbear from treating the abovementioned premises No. 12, Gurusaday Road, Calcutta as a part of any Wakf Estate and further commanding the said respondents to withdraw, rescind and/or cancel any decision obtained or permission and/or sanction granted in respect of the said property to respondents Nos. 3, 4, 5 and 6 or any one of them and to forbear from giving any effect or further effect to any such decision and/or permission and sanction and further to forbear from granting any sanction or permission under Ss. 53-54 of Bengal Wakf Act 1934 in favour of any one and further to act in accordance with law in respect of the said property. b) A writ in the nature of Certiorari and/or an order and/or direction of the like nature commanding the respondents Nos. 1 and 2 to certify and transmit to this Hon'ble Court the records relating to the said premises so that conscionable justice may be administered and upon the records being so certified and transferred to quash the impugned decision and/ or permission and/ or sanction in respect of the said premises No. 12, Gurusaday Road, Calcutta and/or any order or documents or records that may be adverse to the petitioners' right, title and interest in respect thereof.
( 2 ) THE case of the petitioners in short is that by a Deed of Wakf (referred to as `wakfnama) dt. 20th May 1946 one Rani Sayeeda Khatoon (referred to as `wakifa) created a Wakf in respect of various properties including premises No. 12, Gurusaday Dutta Road, Calcutta. It is stated that the Wakf was created for the benefit of the wakifa and her descendants and for certain religious and charitable objects. It is stated that in the line of succession to the mutwalliship of the wakf estate laid down in the wakifa, she was to be the first mutwalli and she was to be succeeded by Kishwar Jehan alias Fahmida Khatoon and her descendants dying and after her and/or her descendants, Kumar Sumare Singh alias Md. Muslim shall become mutwalli and after him his eldest male descendants and so on. It is stated that the said premises No. 12, Gurusaday Dutta Road was duly enrolled by the wakifa in the Office of the Commissioner of Wakfs, West Bengal in 1950, under the provisions of S. 44 of the Bengal Wakf Act 1934. It is stated that Clause 12 of the Wakfnama expressly authorised the mutwalli to transfer the wakf properties and that pursuant to such power, the wakifa herself by a duty registered Deed of Exchange dt. 6th March 1962 exchanged the above mentioned premises No. 12, Gurusaday Dutta Road, Calcutta for a property in Aurangabad in the District of Gaya in Bihar of equivalent value for convenience of management. The said Deed of Exchange was effected by the Wakifa between herself and her son, Kumar Fateh Singh. It is alleged that by virtue of the said Deed of Exchange, premises No. 12, Gurusaday Dutta Road, Calcutta was taken out of the purview of the wakf estate and ceased to be wakf property and the right, title and ownership of the said property came to be vested in Kumar Fateh Singh. It is further alleged that the wakifa gave due notice to the Commissioner of Wakf as provided under S. 53 (2) of the Bengal Wakf Act. It is stated that after having acquired the premises No. 12, Gurusaday Dutta Road, Calcutta by the Deed of Exchange dt. 6th March 1962, Kumar Fateh Singh by a Conveyance dt. 14th Feb. , 1963 which was duly registered before the Registrar of Assurances, Calcutta on 20th March 1963 sold and conveyed the said premises to the petitioner No. 1 Murray and Company subject to the lease granted in favour of Zulekha Begum and a sub-lease granted by the said lessee on 1st Dec. , 1960 in favour of the respondent No. 7, Kumar S
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