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GAUHATI HIGH COURT
Dr. B. P. SARAF, J.
Fazal Sheikh and others -Appellant
Versus
Abdur Rahman Mea and others -Respondent
Second Appeal No.24 of 1980
Decided On : 08-06-1990
WAKF - VALIDITY - OBJECT - UNCERTAINTY - APPOINTMENT OF MUTAWALLI - RESIGNATION - SUBSEQUENT APPOINTMENT - KHATIAN - EVIDENCE OF TITLE - ADHIARS - RENUNCIATION OF TENANCY - FORFEITURE.
Fact of the Case:
Maulana Abdul Hamid Khan purchased 50 bighas of land from Khosa Sk and his sons in 1940. He created a Wakf of 732 bighas of land, including the 50 bighas, in 1943. After partition, Maulana and his family left for Pakistan. The Mutawalli also left for Pakistan after resigning from the position. The adhiars of the 25 bighas of jote land stopped delivering the adhi share of paddy to the Wakf authority and claimed adverse title against Maulana and the Mutawalli. The plaintiffs, representing the Wakf, filed a suit for declaration of title and recovery of possession of the land.
Finding of the Court:
The appellate court held that the sale of land to Maulana was genuine and not benami, that the Wakf was valid and not void for uncertainty, that the appointment of subsequent Mutawallis was valid and legal, that the khatians did not indicate title under the provisions of Section 105 of the Goalpara Tenancy Act, and that the doctrine of forfeiture under Section 111 (g) of the Transfer of Property Act applied to the facts and circumstances of the case.
Issues: 1. Whether the sale of land to Maulana was benami? 2. Whether the Wakf was void for uncertainty? 3. Whether the appointment of subsequent Mutawallis was valid and legal? 4. Whether the khatians indicated title under the provisions of Section 105 of the Goalpara Tenancy Act? 5. Whether the doctrine of forfeiture under Section 111 (g) of the Transfer of Property Act applied to the facts and circumstances of the case?
Ratio Decidendi: 1. The Benami Transaction (Prohibition) Act, 1988, nullifies defences available to the real owner in recovering the benami property from the benamidar irrespective of the time of the benami transactions. 2. A Wakf is valid if the object is one recognised by Mahomedan law as religious, pious or charitable. A Wakf for charity or for good objects permitted by Islam is valid and legal. 3. Under Section 3(f) of the Wakf Act, 1954, a person who manages a Wakf property is to be treated as a Mutawalli. 4. Khatians are not evidence of title. They may at the most indicate possession. 5. Section 111 (g) of the Transfer of Property Act applies when a tenant or adhiar renounces their character as such and claims title for themselves.
Final Decision: The appeal was dismissed with costs.
This is an appeal against the judgment and decree dated 16-11-70 of the District Judge, Goalpara at Dhubri in Title Appeal No.11 of 1975 reversing the judgment and decree dated 24-1-73 passed by the Munsiff No.1, Dhubri in Title Suit No.383 of 1965.
2. The circumstances which have given rise to the action may be briefly summarised. One Raibahadur Biraj Mohan Dutta held a jote of about 73 Bighas of land in village Adabari under the Gauripur Raj Estate. The said jote was sold to one Khosa Sk and his three sons - Sitap, Kitap and Ainulla Sk. by a registered deed of sale dated 4-5-1928. Out of this 73 bighas, 50 bighas of land was sold by the Sheikhs on 30-4-1940 to Maulana Abdul Hamid Khan also known as Maulana Bhasani (hereinafter referred to as Maulana) by registered sale deed dated 10-9-1940. Maulana lived at Hamidabad, previously known as Ghagmari. Delivery of possession of the land in pursuance of the sale deed was made by vendors to one Manikuddin Sarkar, who acted on behalf of Maulana. Out of total 50 bighas so purchased, 25 bighas of land comprising two plots, was settled with the vendors themselves on Adhi. On the remaining 25 bighas Maulana constructed his dwelling house and excavated a tank. The representative of Maulana, Kumed Ali lived in the house and also cultivated the land. Maulanas family also occasionally visited the place.
3. On 16-10-1943. Maulana created a Wakf of about 732 bighas of land situated in different mouzas, which included the 50 bighas of land purchased vide deed dated 30-9-1940 as stated above. The registered deed of Wakf provided that half of the income of the property shall be spent for the maintenance of Maulanas heirs and the income of the other half would go to Anjuman Islam, a local religious institution, to be spent on public welfare works permitted by the Shariat. One Ijadur Rahman Choudhury was appointed the first Mutawalli. The Wakf deed also laid down a scheme for appointment of subsequent Mutawallis.
4. After partition of the country, around the year 1950, Maulana and his family left for Pakistan. The Mutawalli Ijadur Rahman Choudhury also left for Pakistan after resigning from the Mutawalli. For sometime the management of the Wakf property was in a quandary. One Mvi. Abu Taher was put in charge of the property in the absence of the first Mutawalli. Taking advantage of the situation, the adhiars of the 25 bighas of jote land stopped delivering the adhi share of paddy to the Wakf authority and also threatened possession from the other part of the land. This gave rise to a proceeding under S.145 of the Code of Criminal Procedure in which the Additional District Magistrate of Dhubri by order dated 6-10-51 declared possession of the Wakf authority over the 25 bighas of land covered by the house etc. The defendants (appellants herein) were found in possession of the 25 bighas as adhiars. That order was not challenged by the adhiras. They, however, did not deliver the adhi share of crop to the Multawalli of the Wakf. The then Mutawalli, therefore, filed a case before the Revenue Court for eviction of the adhiras. In the meantime Adhi Conciliation Boards were constituted and the case was transferred to the Gauripur Adhi Conciliation Board. At this stage, for the first time, the defendants set up adverse title against Maulana and the Mutawalli of the Wakf before the said Board and contended that the suit land was not sold to Maulana by the vendors; and that the sale was benami and as such, the vendors were never adhiars under Maulana or the Mutawalli of the Wakf. In view of the aforesaid stand taken by the adhiars, who were the vendors of Maulana, the Adhi Conciliation Board dismissed the case with a comment that the dispute between the parties was of a civil nature and should be decided by a Civil Court. The Adhi case was instituted on 6-7-1955 and was disposed of on 10-1-1961. In the meantime, it is alleged that the defendants (appellants herein) forcibly cut and removed the paddy an
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