Character of Wakf-alal-aulad explained.

1. The unsuccessful legal representatives of the 4th defendant viz., defendants 6 to 13 have preferred the second appeal aggrieved against the judgment and decree in A.S.No.117 of 1972 on the file of Sub Court, Chidambaram.

2. The case in brief is as follows:

The plaintiffs filed a suit for recovery of possession from the 4th defendant. One Haji Yaqoob Sahib son of Mohamed Ghouse Sahib dedicated the plaint schedule property as Wakf-alal-aulad by a registered wakf deed dated 2.8.1944. Under the document, a family wakf was created and the son Mohamed Musa Sahib and the descendants are entitled to enjoy the income from the suit property as beneficiaries without any power of alienation. The 1st plaintiff is the Mutavalli of the said wakf and the 2nd plaintiff is the State Wakf Board represented by its Secretary. The 2nd plaintiff has filed the suit as co-plaintiff under Sec.15(i) of the Wakf Act, 1954. Defendants 1 to 3 got possession of the property under the partition deed dated 27.3.1947 and they, in turn, sold the properties to the 4th defendant on 7.8.1952 under a registered document. The partition as well as the subsequent alienation are void ab initio and the plaintiffs sent a registered notice, calling upon the 4th defendant to surrender possession, but it was not done and, hence, the suit.

3. The 4th defendant alone registered the suit, stating that no wakf was created by virtue of the document dated 2.8.1944 and it is not valid under law. He had purchased 2 acres and 22 cents under a registered document for a valid consideration of Rs.1,000. The 4th defendant and his predecessors-in-title have enjoyed the same without any interruption and perfected the title by adverse possession. The plaintiff are not entitled to get recovery of possession and their claim is also barred by limitation. Further more, the property was not dedicated for any pious religious or charitable purpose and, hence, it cannot be construed as a wakf created in accordance with law.

4. The trial court framed six issues and on behalf of the plaintiffs, Exs.A-1 to A-7 were marked and P.Ws.1 and 2 were examined. On the side of the defendants, Exs.B-1 to B-19 were marked and D.Ws 1 and 2 were examined. The trial court came to the conclusion that the property is a wakf property, but ultimately dismissed the suit on the ground that the suit is barred by limitation. Aggrieved, the plaintiffs preferred A.S.No.117 of 1972 on the file of Sub Court, Chidambaram and the appeal was allowed and the judgment and decree of the trial court were set aside and the legal heirs of the 4th defendant viz., defendants 6 to 13 were directed to deliver possession of the property and aggrieved against this, the legal heirs of the 4th defendant have come forward with the present second appeal.

5. At the time of admission of the second appeal, the following substantial questions of law were framed.

(1) Whether the lower appellate court was right in restoring the appeal on the basis of the provisions of Tamil Nadu Act 34 of 1982e

(2) Whether the lower appellate court was right in its conclusion that the suit “properties were wakf properties”

6. The points that arise for consideration are:

(1) Whether the suit property is a wakf property.

(2) Whether the plaintiffs are entitled to recovery of possession of the property from the legal heirs of the 4th defendant.

(3) Whether the suit filed by the plaintiffs is barred by limitation.

(4) Whether the 4th defendant and his heirs have prescribed title by adverse possession. and

(5) To what relief.

7. Point:Ex.A-1 is the registration copy of the wakf deed dated 2.8.1944. Ex.A-2 is the application made by one Ali Hussain to the State Wakf Board. Ex.A-3 is the certified copy of the decree in O.S.No.226 of 1944 on the file of District Munsifs Court, Chidambaram. The plaintiffs have come forward with a specific case that in view of Ex.A-1, a Wakf is created and the beneficiaries were not given any power of alienation of the property and