1991 Supreme(Del) 335

High Court Of Delhi
MOHAMMAD JAHAN BEGUM - Appellant
Versus
ABDUL HAKIM - Respondent
Regular Second Appeal 20 of 1979
Decided On : 05/17/1991

Headnote:THE WAKF ACT, 1954 - Section 3(f) — Definition of "Mutawalli" — Despite repeal of Mussalman Wakf Act, 1923 — More or less identical definition of term "mutawalli" appears in the Act of 1954 — Mutawalli includes any person time being managing wakf property — Suit seeking recovery of the wakf properties — Locus standi of respondent herein to institute suit — No conclusive evidence that respondent herein was a mutawalli appointed by Wakf Board under Section 42 or Section 15(2) (g) of the Act — A person in the position of defacto or deemed Matawalli like respondent here in could not claim locus standi to institute suit — Judgments of courts fallow decreeing his suit set aside.

       HELD:

       It is to be noted in the first instance that under Section 9(2) of the Act, the Board shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be sued. (Empahsis supplied),

       It is abundantly clear from this provision alone that it is only the Board, which is a body corporate capable of acquiring and holding property, that has been enjoined upon to sue in the said name in relation to the wakf property. The intention, as already noted, is further clear from Section 15(2) (i) where one of the stautory functions of the Board is to institute and defend suits. The Act contains one full chapter, (chapter V) dealing with Mutawallis and Wakf Accounts, but no where the power of a mutawalli to institute suits in respect to properties of the wakf is recognised. Section 36 deals specially with the dutieh of a mutawaili. Institution of suits for recovery of wakf properties is certainly not one of those statutory duties. Even Section 41, dealing with penalties is a mutawaili fails to perform his duties, no where mentions as taking steps much less institution of suits for recovery of wakf properties, as one of those duties. There are some Sections in this chapter, such as Sections 32 and 37 which contemplate maintenance of accounts by the mutawalli in respect to certain expenses to be inquired on account of wakf and its properties, Curiously enough, expenses spent on ilitigation in filing suits or defending such suits is not one of those recognised expenses.

       From a reading of these provisions, the only inference that commenced itself is that even a mutawalli, who has been duly appointed under the Act, has no authority to institute suits for recovery of wakf property, and that power lies with the Board only and in fact it is its statutory duty to do so. A person who is to be deemed to be a mutawalli by virtue of the deeming definition of Section 3(f) like the respondent will certainly by the person least empowered to do so.

       A resume of the foregoing would thus show that a person, in the position of a de facto or deemed mutawalli, like the respondent herein, could not claim locus standi to institute a suit for recovery of the wakf properties, and that right vested only with the Board. Both questions 2 and 3 are thus answered in favor of the appellant. As a result, respondent as plaintiff shall stand non suited on this ground, and the judgments of the Courts below, decreeing his suit are liable to be set aside.

       Roof of shop — Stairs leading to the roof situated inside the shop — Appellant-Defendant liable to remove the unauthorised structure — Restore the roof to its original position.

       Accordingly, it is my considered view that if plaintiffs suit was otherwise maintainable, then the appellant had no defense in respect to her occupation of roofs of other shops and main gate of the Masjid. This would be despite the stairs leading to the roof being situated inside the shop under her tenancy, because the tenants of ther shops and owner/landlord of the property would have access to the roof though the same staircase, as there is no evidence that this right of access to the tenancy premises, which is ordinarily available to the owner/landlord was excluded by any express agreement. I am further of the view that even in respect to the roof of the appellants shop, her only right was to use and occupation in the ordinary course, and not of putting up structures, without the consent or approval of the landlord/owner.

       Accordingly, in case the suit could be entertained and decreed, then the defendant would have been liable to remove the unauthorised structure because no tenant can be allowed, if the landlord objects, to have any structure on any part of the tenancy premises, and she would have been directed to restore the roof to its original position.