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2013 Supreme(All) 3501
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Sudhir Agarwal, J.
Khudawand Haiyul Qaiyum – Appellant
Versus
State Of U.P. and others – Respondent
SECOND APPEAL No. - 2471 of 1978
Decided On : 01-07-2013
For the Appellant :- K.M.L. Hajela, B.B. Jauhari, Haji Iqbal Ahmad
Non-registration of a waqf deed does not invalidate the creation of the waqf; sufficient dedication and declaration by a Civil Court affirm its validity, regardless of account maintenance. Parties can challenge decisions on waqf properties without strict adherence to registration requirements.
Headnote:(A) Civil Procedure Code - Section 100 - Waqf Validating Act, 1913 - Waqf Act, 1936 - Validity of waqf creation - Court held that non-registration of waqf deed does not invalidate the waiver of property; it is sufficient that waqf exists and is dedicated for charitable purposes - Maintenance of accounts is not a precondition for waqf validity - The declaration of property as waqf by Civil Court is adequate - Appeal allowed, restoring the Trial Court's judgment. (Paras 1150-1160)
(B) Jurisdiction - The question of waqf property and its registration falls within the purview of civil courts - No bar exists for non-Muslims to claim rights over properties declared waqf if proper notification is missing or invalid - Issues of maintenance and existence of a waqf not dependent on registration or succession certificates. (Paras 1151-1157)
(C) Interpretation of law - The functions of the waqf board are for administration but do not negate the standing of waqfs lacking registration - Such waqfs remain valid regardless of non-registration per statutory mandates. (Paras 1166-1167)
| Table of Content |
|---|
| 1. plaintiff's right to ownership of specific bonds. (Para 1 , 2 , 3 , 4 , 5) |
| 2. questions related to waqf deed and its legal implications. (Para 6) |
| 3. legal interpretation of waqf existence and registration. (Para 7) |
| 4. analysis of the validity and nature of waqf. (Para 8 , 9 , 10 , 11) |
JUDGMENT
Hon'ble Sudhir Agarwal. J.
1. This is plaintiff's appeal under Section 100 C.P.C.
2. Heard Sri B.B. Jauhari, Advocate, for appellant and learned Standing Counsel for respondents.
3. A suit for declaration that plaintiff is owner of Zamindari Abolition Compensation Bonds and Rehabilitation Grant Bonds detailed at the foot of the plaint and present Mutwalli is entitled to get the principle amount and interest from the said bonds being Mutwalli of the plaintiff-wakf was filed in the Court of Civil Judge, Shahjahanpur which was decreed by Trial Court vide judgment and decree dated 17.3.1975 where against defendants preferred Civil Appeal No. 44 of 1975 which has been allowed and Trial Court's judgment and decree has been set aside as a result whereof the suit of the plaintiff-appellant has been dismissed.
4. The Lower Appellate Court (hereinafter referred to as "LAC") formulated the question as to whether the waqf-deed dated 22.5.1945 was actually implemented or not and in this regard considered following aspects:
(i) The income and expenditure of Wakf property were not maintained properly.
(ii) Wakf was not registered in the Wakf Board at any stage.
5. In that view of the matter, having said that wakf-deed was actually executed and submitted to Registrar for its registration, but it was not acted upon in literal sense, it is in these circumstances, LAC has come to the conclusion that for the property in question, the succession certification was necessary.
6. This Court formulated following substantial questions of law while hearing the appeal under Order 41 Rule 11 C.P.C. on15.5.1979:
“(A) Whether registered waqf deed after the dedication of property and declaration and mutation of name of Mutawalli can be said to have not been acted upon.
(B) Whether the maintaining of accounts was necessary for Mutawalli when he was free to utilize the income.
(C) Whether a waqf Alal-aulad was to be registered with the Sunni Central Board.
(D) Whether the declaration by Civil Court was not sufficient to do away with the succession certificate.
(E) Whether Sections 6 and 7 of the Debt Act were attracted in this case.”
15. This Court finds that on the question of waqf, its nature, vis a vis various statutes enacted from time to time, matter has been discussed in great detail in my judgment constituting majority decision by Special Bench of this Court in Sunni Central Board of Waqfs Vs. Gopal Singh Visharad , 2010 ADJ (LB) page 1 and from paras 1087 to 1167 the court held:
“1087. The creation of waqf was held valid and lawful by the Prophet Mohammad. It is said that this rule was laid down by Prophet himself and handed down in succession by Ibn Abu Nafe and Ibn Omar. Omar got piece of land in Khaiber whereupon he came to the Prophet and sought his counsel to make the most pious use of it. The Prophet said “if you like you may make a waqf of it, as it is, and bestow it in benification”. Omar thereupon bestowed it in charity on his relatives, the poor and slaves and in the path of God, and travellers in a way that the land itself might not be sold, nor conveyed by gift, nor inherited. It is said that waqf continued in existence for several century until the land became waste. The prophet of Islam not only declared such works to be valid and lawful but also encourage their creation by dedicating his own property, the little that he had, in favour of posterity. It would be useful to refer as to what constitute a lawful waqf under Muslim Law. A Division Bench decision of Calcutta High Court in Meer Mahomed Israil Khan Vs. Sashti Churn Ghose and others, 19 ILR (Calcutta) (1892) 412 where Justice Ameer Ali answering the question as to what constitute a lawful waq
