SABIR ALI KHAN versus SYED MOHD. AHMAD ALI KHAN AND OTHERS on 13 April 2023

[2023] 6 S.C.R. 930

SUPREME COURT REPORTS

[2023] 6 S.C.R.

SABIR ALI KHAN

A

v.

SYED MOHD. AHMAD ALI KHAN AND OTHERS

(Civil Appeal Nos. 7086-7087 of 2009)

BAPRIL 13, 2023

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Waqf Act, 1995:

Wakf properties, of parties who are Shia Muslims –CBeneficiaries and their rights – Beneficiaries perfecting title byadverse possession – Permissibility of – Held: A beneficiary of awaqf, being neither a trustee nor a co-owner of waqf property, canacquire title through adverse possession even if it is the property ofthe waqf – There cannot be any embargo against a beneficiary of awaqf claiming acquisition of title by adverse possession – BeneficiaryDof a waqf cannot be described as a stranger to the waqf – No doubt,a beneficiary is not to be conflated in his position with a Mutawalli,who is a manager of the waqf – Property of the waqf, in law vestsin the almighty – For the purposes of s. 10 of the Limitation Act, heis treated as a trustee – Beneficiary would be entitled to receiveEbenefits in terms of the waqf deed – In the case of adverse possession,since a requirement is that the possession must be hostile to the realowner and since the real owner is the almighty, the requirementwould be that such a person must have the necessary animus tohold contrary to the title of God – In the case of a co-owner whilemere assertion of title in himself may hardly suffice as the possessionFof a co- owner is taken to be possession on behalf of all co-ownersa case of ouster being successfully established would entitle theco-owner to succeed – Beneficiary of a waqf is endowed with rightsin terms of the waqf deed – No duty is culled out, as such, to protectthe interest of another.

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ss. 52(2) and 107 – Recovery of wakf property transferred incontravention of s. 51 – Waqf created by one shia muslim, by adeed in the year 1934 – Original Waqif had three sons – Eldest son-QA became mutawalli on death of his father – However, his youngerbrothers got their names mutated as bhumidars in revenue records H

for the said property – Suit filed by the eldest son seeking declarationthat it was a waqf property and sought relief of expunging the namesof his two brothers – During the pendency of suit, one of the brotherof QA, sold his one- third share to one of his nephew, referred asfirst sale – Though said suit decreed in favour of the plaintiff, itabated in view of the consolidation proceedings – First sale washeld to be infirm – Thereafter, in 1974, compromise entered betweenthe three brothers and they purported to disown the waqf – Basedon the compromise, second sale made by QA in favour of his othernephew – Challenged to, by QA’s son in a writ petition – In 1988,QA resigned as mutawali – Case of the appellant-son of thetransferor that QA’s son became the mutawali – Writ petitionwithdrawn – Complaint filed before the U.P. Shia Waqf Board byQA’s other son challenging the transfer of waqf property by hisfather and uncle, as also the compromise – Controller of waqf Boardby invoking s. 52(1) directed the Collector to recover and deliverpossession of the disputed land from the unauthorized occupants,nephew of QA-first respondents – Collector directed the respondentsto deliver possession of the property to the Board within 30 days –First respondents challenged the same and the appeals were allowedby the ADJ – However, the High Court set aside the writ petitionholding that the ADJ did not possess jurisdiction – In appeal, thewaqf tribunal held that the respondents had acquired title by adversepossession and set aside the order of the Collector – Said orderupheld by the High Court – However, the revision petitions dismissed– On appeal, held: Beneficiary of a waqf, being neither a trusteenor a co-owner of waqf property, acquired title through adversepossession even if it was the property of the waqf – High Courtrightly held that the father created a valid and effective waqf asrequired of a Shia Muslim and after his death, his eldest son tookover as Mutawali – ss. 49A and 49B came to be inserted by Act 28of 1971 and the second sale took place in 1974, which is after theinsertion of ss. 49A and 49B in the 1960 Act, thus, the power, vestedwith the Board to take action for recovery of possession u/s. 49B –Thus, the sale deed of the year 1974 by eldest son in favour of hisnephew, being in the teeth of the prohibition against a sale withoutthe previous sanction of the Board, was illegal – In order that a suitmay fall u/Art. 96, there must be a transfer by a Manager whichwould include a Mutawalli of a waqf – Art. 96 would not apply as ABC

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Ait is a case of a void sale and not voidable sale – Uttar PradeshMuslim Waqf Act, 1960 – s. 49 A, B.

s. 107 – Recovery of Wakf properties – Applicability of theArt.96 and 65, as regards the first sale effected in the year 1960and second sale in the year 1974, when the Waqf Act came intoBforce on 01.01.1996 – Stated – Limitation Act, 1963 – Arts. 96 and65.

Dismissing the appeals, the Court

HELD: 1.1 The High Court in the impugned order hasconfirmed the findings of the tribunal that respondent no.1 inCboth the cases have acquired title by adverse possession. This ison the basis that the first sale was effected in the year 1960 andthe second sale was effected in the year 1974. The Act came intoforce with effect from 1.1.1996. The period began to run from thedates of the two sale deeds as the sales were void. The furtherDfinding is that Article 96 of the Limitation Act, 1963 did not applyto the first sale of the year 1960. The said sale was effected at atime when QA the eldest brother was the Mutawalli. The salewas effected by a person who in other words was not theMutawalli. Therefore, Article 96 did not apply. As far as the secondsale is concerned, it was effected by QA on 26.09.1974 purportingEto convey his one-third right to his nephew who is the firstrespondent in the other appeal. The further reasoning of the HighCourt is that the second sale deed was executed by the Mutawalli.The court thereafter demarcated the field covered by Articles 65and 96. The court then also took into consideration Section 27 ofFthe Limitation Act, 1963. The Court found the properinterpretation was that Article 96 was to be confined to suits torecover possession where the right to recover possession hadalready not been lost under Section 27 of the Limitation Act, 1963.Article 96, in other words, it was found, applied to voidabletransfers. On the said basis, finding that the second saleGrepresented a case of void transfer, it was found that Article 96did not assist the appellant. It was also found that there is noobstacle in a beneficiary of a Wakf perfecting title by adversepossession. Such an obstacle, undoubtedly, existed in the case ofa Mutawalli, a trustee or a co-owner. A beneficiary was none ofHthe above. Thus, proceeding on the basis that the first respondent in both the appeals were beneficiaries of the Wakf and as thesales under which they claimed were found to be void, the periodof limitation contemplated under Article 65 of the Limitation Actbegan to run from the date of the sale. This meant that when theAct was born on 01.01.1996, the title stood vested with the firstrespondent by adverse possession. It is further found that Section107 of the Act under which the Limitation Act was not applicableto the Act could not rescue the case of the appellant. [Para 16][958-G-H; 959-A-E]

1.2. As far as the first sale is concerned, the sale was noteffected by the Mutawalli or the Manager of the Waqf. The salewas effected by the brother of the Mutawalli. Thus, the High Courtis correct in finding that Article 96 will not come to the aid of theappellant. [Para 20][961-C-D]

1.3. As far as the second sale is concerned, it was no doubt,executed by the Mutawalli by sale deed 26.09.1974. This is asale executed by him on the strength of the compromise whichwas entered into between the three brothers on 13.02.1974. Thecompromise led to order dated 12.09.1974 being passed by theDeputy Director (Consolidation) setting aside the dismissal ofthe revision by order dated 20.09.1969 as also the dismissal ofthe first restoration application dated 02.03.1972. If the said saleis found to be valid, then obviously, the appellant would fail. If onthe other hand, the sale is void, the question would be whetherthe proceeding initiated beyond 12 years from the date of thesale would be within time. [Para 21][961-D-F]

1.4. There cannot be any doubt that Waqf property can bethe subject matter of acquisition of title by adverse possession.That a Mutawalli however cannot acquire rights over waqfproperty by adverse possession is not open to question. The HighCourt finds that Article 96 will not apply as it is a case of a voidsale and not voidable sale. [Paras 22, 23][961-H; 961-A]

1.5. Sections 49A and 49B were inserted in the 1960 Actby way of U.P. Act 28 of 1971. Therefore, the sale deed dated26.09.1974 by QA in favour of his nephew, being in the teeth of AB

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Athe prohibition against a sale without the previous sanction ofthe Board, was illegal. It is this narrative which gives rise to thequestion as to whether the sale is void as it was in transgressionof a statutory mandate, and other related issues. [Para 35][973-F]

B1.6. Section 52 of the Act, which is the fountain head of theaction by the Controller of the Waqf Board and the Collector, is asequel to Section 51. Section 51(1)(a) as substituted by Act 27 of2013, subject to the provisos declares a sale, gift, exchange ormortgage or transfer of waqf property to be ab initio void. Section52 of the Act provides that if the Board is satisfied, after makingCany inquiry, as may be prescribed, that any immovable propertyof a waqf entered as such in the Register of Waqfs maintainedunder Section 36, has been transferred without previous sanctionof the Board in contravention of Sections 51 or 56 of the Act, itmay send a requisition to the Collector of the place within which Dthe property is situated to obtain and deliver possession. TheCollector is bound to pass an order directing the person inpossession to deliver the property to the Board within 30 daysfrom the receipt of the Order. It is under this provision that theimpugned Orders came to be passed. [Paras 36, 37][974-B; 974-D-F]E

1.7. The Act came into effect on 01.01.1996. Section 52empowers the Board to send a requisition to the Collector, ifproperty has been transferred without the previous sanction ofthe Board in contravention of Section 51, inter alia. Section 51has provided that any sale of property, which is waqf property,Fwithout the previous sanction of the Board, would be void. Thetwo sales in this case took place prior to 01.01.1996. The firstsale is dated 14.10.1960 whereas the second sale is dated13.09.1974. [Para 38][974-F-H]

1.8. Section 49B of the 1960 Act is pari materia with SectionG52 of the Act. In other words, it provided that the Board may, if atransfer is made contravening Section 49A of the 1960 Act, sendrequisition to the Collector for recovery of possession. Section49A of the 1960 Act also provided on similar terms as provided H

in Section 51(1) of the Act that for a sale of property comprised ina waqf, previous sanction of the Board was necessary. As far asSections 49A and 49B came to be inserted by Act 28 of 1971 andthe second sale took place in 1974, which is after the insertion ofSections 49A and 49B in the 1960 Act, therefore, the power,indeed, vested with the Board to take action for recovery ofpossession under Section 49B. Under Section 112(3) of the Act,it is proceeded on the basis that the 1960 Act would standrepealed. However, the proviso declares that the repeal wouldnot affect the previous operation of the corresponding law. Thecorresponding law, in this case is Section 49A read with Section49B. Action taken in the exercise of the power thereunder, is tobe deemed as taken in the exercise of powers under the Act.The powers under the Act must be treated as flowing from Section52 of the Act. The proviso to Section 112(3) provides that theprovisions in the Act, which in this case would be Section 52,must be treated as being on the Statute Book. [Para 40][975-D-H]

1.9. The waqf in question is created by the father by deeddated 26.07.1934. It is, no doubt, a waqf-alalaulad. A waqf-alal-aulad is a waqf under Mohammaden Law. [Para 43][976-D]

1.10. Section 3 of the Mussalman Wakf Act, 1923 obligedthe Mutawalli to furnish statement containing certain particularsto the competent Court. Notice of the Statement was to bepublished under Section 4. The 1923 Act provided for audit ofaccounts and the provision for expense which could be incurredby the Mutawalli came to be inserted. Section 10 provided forpenalty. Certain waqfs were excluded from its purview underSection 12. In the United Provinces, which meant the UnitedProvinces of Agra and Awadh, the 1936 Act, came to be enacted.[Para 45][977-E-F]

1.11. No doubt, the Court was dealing with a case of a waqf-alal-aulad. The Judgment must essentially be viewed in thecontext of the definition of ‘religious and charitable purpose’provided in the Act in question. [Para 49][980-A]

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A1.12. The Wakf in question is dated 26.07.1934. The 1936Act applied to Wakfs created before or after the commencementof the Act. However, Section 2(2) declares that the Act shall notapply to certain waqfs. They included a waqf whereunder not lessthan 75 per cent of the total income, after deduction of certainsums, was for the time being payable for the benefit of the waqifBor his descendants. However, Section 38(1) of the 1936 Act madeit clear that every waqf, whether subject to the Act or not andwhether created or after the commencement of the 1936 Act,shall be registered. Proceeding on the basis that the waqf dated16.07.1934 was waqf-alal-aulad and which, in terms of SectionC2(2)(i), was not subject to the provisions of the 1936 Act, it wascompulsorily registerable in view of Section 38(1). Any waqf whichis registered under the 1936 Act would also be deemed to beregistered under the 1960 Act. That is, though the 1936 Act didnot apply to certain wakfs, but when it comes to registration underSection 38, it was mandatory for every wakf to be registered (i)Dwhether subject to the Act and ii) whether created before the Actor not. Thus, the registration of the Wakf dated 16.07.1934, wasin fact compulsory under Section 38 of the 1936 Act. [Para 50][980-B-E]

1.13. It was found that there was a valid waqf from theEstandpoint of the Shia law and the Consolidation Authorities alsofound that there was a waqf till the Deputy Director, Consolidationrevisited the matter only on the basis of the compromise betweenthe brothers, the terms of the waqf did contemplate a certainsum being set apart for charitable purposes. In this regard, theFstipulation in the deed that a sum of Rs. 500/- will be spent oncharitable purpose such as Muazzin and lighting in the mosqueand emambara, majlallse ashra of the sacred month of Moharramis noticed. No doubt, there is the residuary clause, which revealsthat the wakif has provided that if descendants cease to exist,the income from the endowed property will be managed by aGCommittee to be spent for charitable purposes. [Para 51][980-E-H; 981-A]

1.14. The extent of the income, which is set apart for thepurpose, be it religious, pious or charitable, in the facts, cannotdetract from the dedication of the whole property. [Para 53]

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1.15. The fact that the property of the waqf has been dealtwith in a manner, which is illegal, or that it was not questioned,cannot deflect this Court from either finding that there was avalid waqf or that the property which remained of the waqf, mustbe dealt with in accordance with law. The compromise before theDeputy Director (Consolidation) and the order based on the sameare in the teeth of Section 69 of the 1960 Act, therefore, theorders passed by the Consolidated Officer and Settlement Officerabout the Waqf would revive. [Para 54][982-G-H; 983-A]

1.16. The High Court proceeded on the basis that aMutawalli may not be able to acquire title by adverse possession.Equally, a trustee and a co-owner stand precluded in this regard.A beneficiary of a waqf, however, being neither a trustee nor aco-owner of waqf property, can acquire title through adversepossession even if it is the property of the waqf it is found. [Para55][983-B-C]

1.17. A beneficiary of a waqf cannot be described as astranger to the waqf. No doubt, a beneficiary is not to be conflatedin his position with a Mutawalli. The Mutawalli is a manager ofthe waqf. The property of the waqf, in law vests in the almighty.The Mutawalli acts merely as the manager. For the purposes ofSection 10 of the Limitation Act, no doubt, he is treated as atrustee. A plea of adverse possession undoubtedly requires therequisite intention, viz., animus possidendi. This is besides actualpossession for the required period. A beneficiary would be entitledto receive benefits in terms of the waqf deed. In the case ofadverse possession, since a requirement is that the possessionmust be hostile to the real owner and since the real owner is thealmighty, the requirement would be that such a person must havethe necessary animus to hold contrary to the title of God. In thecase of a co- owner while mere assertion of title in himself mayhardly suffice as the possession of a co- owner is taken to bepossession on behalf of all co-owners a case of ouster beingsuccessfully established would entitle the co-owner to succeed.[Para 56][983-C-H]

1.18. In order that a suit may fall under Article 96, theremust be a transfer by a Manager which would include a Mutawalli ABC

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Aof a waqf. It must be for valuable consideration. In order thatthere is a transfer, it must not be still born. It should not be a voidtransaction. This is for the reason that a void transaction wouldnot amount to a transfer. An unauthorized alienation, a transfer,which was made by a Mutawalli, for which, there was no authorityin the waqf deed, would constitute a transfer to which ArticleB134B and Article 96 would have applied. With the advent of thelaws relating to Waqfs which included the 1960 Act in UttarPradesh, the Mutawalli was obliged to obtain the previoussanction of the concerned Board. In cases where a transfer ismade under the 1960 Act without previous sanction of the Board,Cthe transfer would be void. This is for the reason that therequirement of previous sanction is a statutory commandconceived with a definite and sublime purpose and thetransgression of which can only result in a void transaction. Thereis no provision which enables the validating of such a sale. Infact, the stand of respondents 2 and 4 is that, the transfers wereDvoid. Therefore, the authorities have also proceeded on the basisthat the transaction was void and therefore can proceed on thesaid foundation. [Para 61][985-G-H; 986-A-D]

1.19. Proceeding on the basis that the sale executed in 1974was a void transaction. Article 96 of the Limitation Act, 1963Ecannot be invoked in the case of a void transaction. The impugnedOrder, proceeding on the said premise, cannot be said to beflawed. There cannot be any embargo against a beneficiary of awaqf claiming acquisition of title by adverse possession. Whilehe may be a person who can be treated as “interested” in a waqfFwithin the meaning of Section 2(k) both by reason of the fact thathe is a recipient of pecuniary or other benefit and also he may bea descendant of the wakif, it is a far cry from describing him as aTrustee. The beneficiary may have benefits coming his way interms of the waqf deed. He may be clothed with rights in thisregard. [Para 62-64][986-D-F; 987-A-B]G

1.20. The term ‘fiduciary’, as such, has not been defined,so is the case with the ‘fiduciary relationship’. In fact, Section 88of the Trusts Act, 1882, inter alia, provides that a person standingin a fiduciary character and bound to protect the interest of H

another, cannot by using such character, obtain an advantage andresist making over the benefit to the person, whose interest hewas bound to protect. A fiduciary can, therefore, be taken to be aperson who becomes charged with the duty to protect the interestof another. Fiduciary relationship is founded upon the reposingof confidence by one in another. The beneficiary of a waqf isendowed with rights in terms of the waqf deed. No duty is culledout, as such, to protect the interest of another. No doubt, it couldbe said that as the property in a waqf, vests in the Almighty, theremust be a concern and, undoubtedly, a moral duty to act in amanner that the object of the wakf is fostered. But a beneficiaryis not like a trustee, who assumes possession in his character asa trustee, coming under the restraint of discarding his characteras trustee and donning the robes of an encroacher or a personasserting hostile title. It is not, as if, the beneficiary was inpossession of the property in any capacity prior to the sale. [Paras65 - 67][987-C-D; 988-H; 989-A-B; 989-C]

1.21. In the second sale, the former Mutawalli, viz., QA,entered into the sale deed on the strength of a compromise andthe order of the Deputy Director, Consolidation, under which, hepurported to act as one possessed of one-third right in his ownright. No doubt it would have mattered little to the applicabilityof Article 96 that the transferor purported to transfer waqf propertyprofessing it to be his property. But this is a case where thevoidness arises on account of the fact that what is found to bewaqf property has been purported to be alienated contrary to theperemptory statutory mandate. [Para 68][989-D-F]

1.22. The argument that Section 107 of the Act would assistthe appellant in tiding over the bar of limitation does not appeal.Section 107 of the Act, no doubt, proclaims that nothing in theLimitation Act,1963 shall apply to any suit for possession of theimmovable property comprised in any waqf or for possession ofany interest in such property. [Para 69][989-F-G]

1.23. The Act came into force on 01.01.1996. The first salewas effected on 14.10.1960. The second sale was effected on26.09.1974. As far as the first sale is concerned, Article 96 cannot ABC

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Abe pressed into service as the transfer was not purported to bemade by the Mutawalli. The doors stood open for the applicationof Article 65. As far as the second sale is concerned which waseffected in the year 1974, the Article 96 was not applicable, theonly other competing Article vying for acceptance, appears to beArticle 65. Applying Article 65 and as the adverse possessionBwould kick in from the date of the transfer, on the expiry of twelveyears, i.e., in 1986 applying Section 27 of the Limitation Actwhatever title remained within the meaning of Section 65 wouldstand extinguished. The Act was brought into force only with effectfrom 01.01.1996. The purport of Section 107 cannot be understoodCto be that it would revive an extinguished title as nothing stoodin the way of running of time from the date of the second saleunder the law as it stood. [Para 70][989-G-H; 990-A-C]

1.24. No doubt, the law of limitation is what prevails as onthe date of the suit. Taking 1997 as the date, on which a suit isDfiled, and applying the Act, which enables the plaintiff to disregardthe bar of law of limitation, it cannot mean that what stoodextinguished under the earlier law would revive. [Para 71][990- C-D]

1.25. The issue in the High Court essentially centeredEaround the question whether Article 96 would apply and applyingthe same, the appellant could get around the impact of Article 65read with Section 27 of the Act. Article 96 has no application.Even in regard to a proceeding under the Act be it Section 52 ifas on the date the action is taken, the title in the property stoodvested with the person in possession by virtue of Section 27 ofFthe Limitation Act then it may not be permissible to ignore theright which had been acquired. [Para 72][991-A-B]

T. Kaliamurthi and Another v. Five Gori Thaikkal Wakfand Others (2008) 9 SCC 306 : [2008] 11 SCR 758;C. Beepathumma and Others v. VelasariGShankaranarayana Kadambolithaya and Others AIR1965 SC 241 : [1964] SCR 836 – relied on.

Chintamani Sahoo (deceased by LR.) and Others v.Commissioner of Orissa Hindu Religious Endowments, H

Orissa and Others AIR 1983 Orissa 205; AnisurRahman and Others v. Sheikh Abul Hayat AIR 1965Patna 390 – approved.

Shri Mohammad Ismail Faruqui v. Union of India andOthers AIR 1995 SC 605 : [1994] 5 Suppl. SCR 1; TheMosque Known as Masjid Shahid Ganj, and Others v.Shiromani Gurdwaba Prabandhak Committee, Amritsar,and Another AIR 1940 PC 116; Faqir Mohd. Shah v.Qazi Fasihuddin Ansari and Others AIR 1956 SC 713;Moattar Raza and Others v. Joint Director ofConsolidation, U.P. Camp at Bareilly and Others AIR1970 Allahabad 509; Khilli Ram v. State of Rajasthan(1985) 1 SCC 28 : [1985] 1 SCR 1136; (Smt.) AminaKhatoon v. Third Addl. D.J. Farukhabad and Others1987 All LJ 1282; Chhedi Lal Misra (Dead) ThroughLrs. v. Civil Judge, Lucknow and Others (2007) 4 SCC632 : [2007] 2 SCR 568; K. S. Viswam Iyer (Dead)Through Lrs. v. State Wakf Board, Madras (1994) Suppl.2 SCC 109; Wali Mohammed (Dead) by Lrs. v. RahmatBee (Smt) and Others AIR 1999 SC 1136 : [1999] 1SCR 852; Fazlul Rabbi Pradhan v. State of West Bengaland Others [1965] 3 SCR 307 : AIR 1965 SC 1722;Dr. M. Ismail Faruqui and others v. Union of India(1994) 6 SCC 360 : [1994] 5 Suppl. SCR 1; Syed YousufYarKhan and Others v. Syed Mohammed Yar Khan andOthers [1967] 2 SCR 318; M. Siddiq (Dead)ThroughLegal Representatives (Ram JanmabhumiTemple Case)v. Mahant Suresh Das and Others (2020) 1 SCC 1 :[2019] 18 SCR 1; Karnataka Board of Wakf v. Govt.of India and Others (2004) 10 SCC 779 : [2004] 1Suppl. SCR 255; Thakur Mohd. Ismail v. Thakur SabirAli AIR 1962 SC 1722 : [1963] SCR 20; Ahmed G.H.Ariff and Others v. Commissioner of Wealth Tax,Calcutta AIR 1971 SC 1691 : [1970] SCR 19; ChinnaJeeyangar Mutt, Tirupath v. C. V. Purushotham andOthers AIR 1974 AP 175; The Special Officer for WakfsMadras v. Subramanyam and Others AIR 1977 Madras79; Abdul Fatah Mohammad Ishak v. Russomy Dhar A

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AChaoudhary 22 Indian Appeals 76; U.P. Sunni CentralBoard of Waqf and Another v. Hasan Jehan Begum andAnother AIR 1977 All 18; Central Board of SecondaryEducation and Another v. Aditya Bandopadhyay andOthers (2011) 8 SCC 497 : [2011] 11 SCR 1028 –referred to.B

Mulla on “Principles of Mohammadan Law” (22[nd]Edition) – referred to.

CaseLawReference

From the Judgment and Order dated 02.05.2008 of the High Courtof Judicature at Allahabad in CR Nos. 595 and 596 of 2003.

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Salman Khushid, Sr. Adv., Irshad Ahmad, Ms Lubna N,Ms. Kamna Singh, Anurag Rawat, Shaik Mohd Haneef, Aman Khullar,Ms. Sommya Chaturvedi, Khan, Advs. for the Appellant.

P.S. Patwalia, S.R. Singh, Sr Advs., Gaurav Agrawal, EjazMaqbool, Ms. Akriti Chaubey, Ms. Tanya Shree, Ms. Harshika Verma,Saif Zia, Syed Mohd. Muztaba, Pradeep Misra, Mangal Prasad, PrateekYadav, Prithavi Yadav, Mitr Rao, Gaurav, Advs. for the Respondents.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. The Appeals are lodged against the Order passed by the HighCourt of Allahabad in Civil Revision Nos. 595 and 596 of 2003. TheRevisions, in turn, were directed against the Order passed by the WaqfTribunal on an Appeal filed by the first respondent before us. The firstrespondent again, in turn, put in issue the Order passed by the Collector,Bulandshahar. The Order passed by the Collector was passed underSection 52(2) of the Waqf Act, 1995 (hereinafter referred to as the‘Act’). Finally, we must point out at this stage that the Collector wasacting on the basis of a requisition given by the Controller of Waqf Boardto obtain and deliver possession of the land in dispute to the Waqf Board.The requisition was made under Section 52(1) of the Act.

2. By the Order passed by the Tribunal, it had set aside the Orderpassed by the Collector on various grounds. By the impugned Orderpassed by the High Court in the Revisions filed against the aforesaidOrder by the appellants, the High Court has affirmed the Order passedby the Tribunal, however, on the ground that the first respondent, in theAppeals, had perfected title by adverse possession.

3. We have heard Shri Salman Khurshid, learned Senior Counselon behalf of the Appellant and Shri P.S. Patwalia, learned Senior Advocateon behalf of the first respondent and Shri S.R. Singh, learned SeniorAdvocate on behalf of the second respondent-the Assistant SurveyCommissioner, Waqk, Bulandshehar and the fourth respondent-theCollector, Wakf, Bulandshehar.

FACTS

4. We begin by setting out the following genealogical chart:

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SUPREME COURT REPORTS

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C5. Parties are Shia Muslims. Mohd. Akbar Ali khan purported tocreate a waqf-alal-aulad by a deed dated 26.07.1934. He appointedhimself as a first Mutawalli. However, he purported to execute a saledeed in the year 1948 in respect of a tube well and some adjoining land.Qasim Ali Khan, one of the sons of Akbar Ali Khan, filed OS No. 1 of1950 impugning the sale deed. The trial court decreed the said suit andDthe decree was affirmed by the High Court by its judgment rendered on11.07.1962. The High Court in the course of its Judgement did hold that,Akbar Ali Khan had created a valid and effective waqf as required of aShia Muslim which he was. On 16.12.1958, Akbar Ali Khan passedaway. He left behind him three sons, Qasim Ali khan, Kazim Ali KhanEand Raza Ali Khan. It appears that Qasim Ali Khan took over as theMutawalli. His name was entered in the register of waqf. However, hisyounger brothers, i.e., Kazim Ali Khan and Raza Ali Khan got theirnames mutated in the Revenue Records as Bhumidhar in regard to theproperty. This led to the second suit again by Qasim Ali Khan, i.e., OSNo. 421 of 1959. He sought a declaration that the plaint schedule propertyFwas a waqf property. He further sought the relief of expunging the namesof his two brothers. The said suit was decreed in favour of the plaintiffon 21.05.1962. Mohd. Kazim Ali Khan on 14.10.1960 during the pendencyof the suit transferred his alleged one-third share to Mohd. Ahmad AliKhan who was his nephew being the son of Raza Ali Khan. This shallGbe referred to as the first sale.

6. After a remand in an Appeal, when the Suit was pending,consolidation proceedings began in the village. Under the law, the Suitwas to stand abated. The Suit stood abated. Shri Qasim Ali Khan filedobjection seeking expunging of the names of the other sons, viz., hisHbrothers. This was done on the basis that the properties were waqf

properties. The Consolidation Officer accepted the objection. He directedthat the entry of waqf be made in the Revenue record. It was his reasoningthat upon the creation of the waqf, properties stood vested in the Almightyand the first sale was infirm. The Appeal filed by Shri Kasim Ali Khanand Shri Raza Ali Khan came to be dismissed by the Settlement Officer.The Revision filed by them also came to be dismissed by Order dated29.01.1969. However, it would appear that an application, seekingrestoration, was filed in regard to the Order of the Deputy Director,Consolidation. The same stood dismissed on 02.03.1972. AnotherApplication for Restoration, however, came to be filed. It is in the saidRestoration Application, a compromise was entered into on 13.02.1974between the three brothers, viz., Qasim Ali Khan, Kasim Ali Khan andRaza Ali Khan. The compromise proceeded on the footing that the waqfwas a paper transaction. It was the further basis that the waqf wasnever acted upon and further that the Bhumidars of the plots wereQasim Ali Khan, Raza Ali Khan and Mohammad Ahmad Ali Khan (thelast being the alienee), who were entitled to one-third share each. TheDeputy Collector, Consolidation accepted the compromise, set aside theOrder dated 29.01.1969, an Order passed on merit, and, disposed of theRevision on the basis of the compromise. No sanction was obtainedfrom the Waqf Board within the meaning of Section 49A of the UttarPradesh Muslim Waqf Act, 1960 (hereinafter referred to as, ‘the 1960Act’, for short). The Shia Waqf Board was not a party. We also noticethat the Order dated 02.03.1972 was set aside. A sale deed came to beexecuted based on the compromise on 26.09.1974 by Shri Qasim AliKhan, purporting to convey his one-third share in favour of his nephew,viz., Shri Syed Mohammad Ali Khan, who was another son of Shri RazaAli Khan hereinafter referred to as the second sale. Shri Syed Shujat AliKhan, who was the son of Qasim Ali Khan, filed Writ Petition (C) No.5874 of 1974 challenging Order dated 12.09.1974 passed by the DeputyDirector, Consolidation. On 01.05.1988, it would appear that Shri QasimAli Khan resigned as Mutawalli. It is the case of the appellant that ShriSujat Ali Khan became the Mutawalli. The Writ Petition filed by ShriSujat Ali Khan came to be withdrawn. Thereafter, Shri Sajjad Ali Khan,who was another son of Shri Qasim Ali Khan and who claimed as abeneficiary of the Wakf, filed a complaint before the U.P. Shia WaqfBoard. He called in question the transfer made of waqf property, bothby Shri Qasim Ali Khan, his father, and his uncle, viz., Shri Kasim AliKhan. He also sought to bring under a cloud the compromise entered AB

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Ainto by them before the Deputy Director, Consolidation besides thewithdrawal of Writ Petition (C) No. 5874 of 1974. The Controller of theWaqf Board passed Order dated 16.07.1997. By the said Order, heinvoked Section 52(1) of the Act and directed the Collector to recoverand deliver possession of the disputed land from the unauthorisedoccupants, viz., Shri Syed Mohamad Ahmad Ali Khan and Shri MohamadBAli Khan, who were the sons of Shri Raza Ali Khan. They are the firstrespondents in the Appeals and referred to as such. It is thereupon thatthe Collector passed Order dated 31.12.1997, directing the respondentsto deliver possession of the property to the Board within thirty days.This Order came to be challenged by the first respondents in the Appeals,Cviz., the alleged unauthorised occupants before the Additional DistrictJudge, Bulandshahar. The said Appeals were allowed by the AdditionalDistrict Judge. The appellant filed Writ Petition (C) No. 23414 of 1998,contending that it was the Waqf Tribunal which had the jurisdiction andnot the Additional District Judge. This contention found favour with theHigh Court and it was found that the Additional District Judge did notDpossess jurisdiction. The Order of the Additional District Judge came tobe set aside. Thereafter, the first respondent filed Appeal No. 2 of 2002and Appeal No. 3 of 2002 before the Waqf Tribunal. By Order dated28.03.2003, the Waqf Tribunal allowed the Appeals and the Order of theCollector was set aside. It is the said Order, which has been confirmedEby the High Court by passing the impugned Order, by which, the RevisionPetitions filed by the appellant, came to be dismissed.

FINDINGS OF THE WAQF TRIBUNAL

7. Fi.Under Section 52(1) of the Act, the Board was to first satisfyin such manner as was prescribed, after making inquirythat the property is recorded in the Waqf Register andfurther that the property was alienated without any priorpermission of the Board. Thereafter, the matter is to besent to the Collector for recovering possession.G

ii.After perusing the record and a true copy filed by theappellant (the papers Nos. 42C and 53C2), it was foundthat it was not mentioned in the Order that the Board haddone any inquiry.

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iii.The Board had not satisfied itself, after making inquiry. ThisAfinding was entered on the basis of there being no evidencein the record requisitioned from the Board.

iv.A Report of a Senior Waqf Inspector found included in therecord, was considered and it was found that Senior WaqfInspector had not actually seen whether the property wasBrecorded in the Waqf Register. The Controller had notsatisfied itself as per the prescribed procedure laid down inSection 52(1) of the Act.

v.The procedure adopted was illegal. There was no Officerknown as Controller under the Act. The power under Section52(1) could be exercised by the Board. No Notification wasproduced to establish that the Board transferred its powerto any Officer known as Controller. The Order passed bythe Controller was without jurisdiction.

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vi.A period of seven days alone was given, which is illegal.

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vii.The possession of the respondents was clearly admitted inthe petition filed by the appellant before the Waqf Board. Itwas further admitted that the respondents were using theproperty for their own interest and as their own personalproperty. The respondents were found to have becomeowners by way of adverse possession. There wereexceptions to Section 49A of the U.P. Act and Section 51of the Act. Both Acts were special Acts on the subject ofWaqf. There was no absolute Rule that a property couldnot be transferred as new rights could accrue to any personon the basis of adverse possession.

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FINDINGS OF THE HIGH COURT

8. i.There is merit in the contention of the appellant that thecompromise entered into before the Deputy Director,Consolidation, being a collusive one, could not defeat theWaqf. Once a Waqf, always a Waqf.

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ii.In the absence of the Waqf Board, the Order passed by theDeputy Director, Consolidation acting on the compromisewas invalid in view of Section 69 of the 1960 U.P. Act.

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Aiii.The sale executed by Shri Qasim Ali Khan on 29.06.1974(the second sale) was invalid for the reason also that nopermission of the Waqf Board was obtained under Section49A of the 1960 U.P. Act. Equally, the sale executed byShri Kasim Ali Khan in the year 1960 (the first sale), whowas a beneficiary, who had no right to sell Waqf Property,Bwas void.

iv.Shri Syed Mohammad Ahmad Ali Khan and Shri SyedMohammad Ali Khan were beneficiaries in the waqf-al-al-aulad. Rejecting the contention of the appellant that abeneficiary could not acquire title by adverse possessionCover waqf property, it was found that title by adversepossession could be acquired.

v.Relying upon Shri Mohammad Ismail Faruqui v. Unionof India and others1 and also The Mosque Known asMasjid Shahid Ganj, and others v. Shiromani GurdwabaDPrabandhak Committee, Amritsar, and another2, it wasfound that title by adverse possession could be acquiredover waqf property.

vi.A person in a fiduciary relationship or one, in whom theproperty was vested in trust, could not claim title by adverseEpossession over trust property. A Mutawalli, accordingly,on the said principle, could not claim title by adversepossession over waqf property [See Faqir Mohd. Shah v.Qazi Fasihuddin Ansari and others3]. That a Co-owneralso cannot acquire title by adverse possession over trustFproperty, is found to be well-recognised in law.

vii.A beneficiary is not a co-owner and, therefore, the principlethat a co-owner cannot acquire a right by adversepossession over the share of another co-owner, was notapplicable to a beneficiary. A beneficiary did not hold theGproperty in trust.

viii.“In every case of Waqf, whether public or private, theproperty vests in God Almighty or in the Waqf itself as an 1 AIR 1995 SC 605

2 AIR 1940 PC 116H3 AIR 1956 SC 713

institution or a foundation economic, for the time being inforce”. The High Court drew support from the aforesaidview expressed by a Full Bench in the decision reported inMoattar Raza and others v. Joint Director of4Consolidation, U.P. Camp at Bareilly and others.

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ix.Article 96 of the Limitation Act, 1963, provides for a periodBof twelve years for a Suit by a Manager of a MuslimReligious or Charitable Endowment, inter alia, to recoverpossession transferred by a previous Manager for valuableconsideration. The sale executed by Shri Kasim Ali Khan(the first sale) would not come under its purview as he wasCnot the Mutawalli/Manager.x.In regard to the sale deed executed in 1974 by Shri QasimAli Khan, who was noted as the Mutawalli, the Court wentinto the interplay of Articles 65 and 96 of the LimitationAct, 1963. It was found that Article 96 would not apply inD

x.In regard to the sale deed executed in 1974 by Shri QasimAli Khan, who was noted as the Mutawalli, the Court wentinto the interplay of Articles 65 and 96 of the LimitationAct, 1963. It was found that Article 96 would not apply inDthe case of a void transfer. In the case of a transfer beingvoid on account of breach of a statutory requirement,adverse possession of the transferee would commence fromthe date of the transfer. If the Suit for Recovery ofPossession was not instituted within the period of twelveyears under Article 65, the rights of the Manager to recoverEthe endowed property would stand extinguished underSection 27 of the Limitation Act.xi.The correct interpretation to be placed on Article 96 is toconfine its ambit to suits to recover possession where theright to recover possession was not lost under Section 27F

xi.The correct interpretation to be placed on Article 96 is toconfine its ambit to suits to recover possession where theright to recover possession was not lost under Section 27of the Limitation Act. In other words, it is found that Article96 would be of avail only in regard to voidable transfers.

xii.The finding of the Tribunal that the respondents had acquiredtitle by adverse possession, was found correct. Thecontention based on Section 66G of the Waqf Act, 1954,Gwas repelled, though it provided for a period of thirty years.This was on the basis that the said enactment was nevermade applicable to Uttar Pradesh.

[2023] 6 S.C.R.

Axiii.Section 107 of the Act, which excludes the Limitation Act,was found to be of little avail to the appellant. A person inadverse possession does not claim through the Mutawalli.The right of the respondents having ripened by adversepossession, it could not be defeated by invoking Section107 of the Act.

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xiv.The view expressed by the Tribunal that the Waqf Boardwas duty-bound to hold an inquiry and that such an inquirywas not held, was found to be erroneous. The contentionof the appellant that the Waqf was registered, had not beendisputed, and it was also not disputed that there was noCprevious sanction for the sale, was found to be with merit.

xv.It was noted that in the Report of the Inspector, it is statedthat Waqf was registered as Waqf No. 1456, which recitalwas not established as incorrect. It was further found thatthe respondents had not set up any case that the Waqf wasDnot registered in the Register of Waqfs. The Order of theController, therefore, was not required, it is found, to bequashed on the ground of no inquiry being held under Section52. It was also found that it could not be so quashed on theground that there was no application of mind.

Exvi.The effect of the decision reported in Khilli Ram v. Stateof Rajasthan5, was found to be that the entry in the WaqfRegister would not be open to question in an Appeal againstthe Order passed by the Collector. The Appeal against theOrder of the Collector lies before the Tribunal under theFAct. The Tribunal has wide powers and it can go into thequestion. The Tribunal could go into the validity of theRequisition Order issued by the Board. These are viewsexpressed in the Judgment of a learned Single Judge in thedecision reported in (Smt.) Amina Khatoon v. Third Addl.D.J. Farukhabad and others6. The High Court agreedGwith the said view.

xvii.The Tribunal erred in finding the notice being defective onthe ground that thirty days’ notice was not given. High Court 5 (1985) 1 SCC 28H6 1987 All LJ 1282

notes the same to be a mistake and that no prejudice hadbeen caused as no steps were taken for their eviction beforethe expiry of thirty days.

xviii. The contention of the respondents that the Report given bythe Senior Inspector of the Waqf was an ex parte Reportand they had not been given any opportunity, was found tobe factually correct. However, it is found that the Controllerhad found the property in question was waqf property, theWaqf was registered and, lastly, the transfer was invalidfor want of permission. It is specifically found that ‘thereappears no dispute on facts upon the point’. No prejudice,it is found further to the respondents, especially in view ofthe full opportunity given by the Tribunal, especially when itwas not contended that the Waqf was not registered orthat the property was not waqf property or that permissionwas taken before the transfer.

xix.It was, however, found that in view of the finding that therespondents had acquired title by adverse possession, therewas no merit in the Revision Petitions and, accordingly, theywere dismissed.

CONTENTIONS OF THE APPELLANT

9.

i.The learned Senior Counsel for the appellant, Shri SalmanKhurshid, contended that Article 96 of the Limitation Actdid apply. The period of limitation would commence from1996 or from the date, when the appellant Shri Sajjad AliKhan was appointed Mutawalli, as twelve years had notrun out from 01.05.1988, when Shri Qasim Ali Khanresigned or from the date of appointment of the presentMutawalli Shri Sajjad Ali Khan. Therefore, Shri SayedMohammad Ahmad Ali Khan could not acquire title byadverse possession.

ii.Article 65 of the Limitation Act did not apply. The claim ofShri Sayed Ahmad Ali Khan was based on the compromisedated 13.02.1974. It was not founded on the sale deed dated14.10.1960. The right under the said sale deed, if any, gotextinguished in view of there being no objection by him during A

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Athe consolidation proceedings and also the decisions of thethree Consolidation Courts.

iii.As regards the claim of adverse possession of Shri SyedMohammad Ali Khan, it is contended that Article 65 was ageneral Article and it is Article 96, which would apply.BAppellant was appointed Mutawalli. The period would startrunning, when he was so appointed or from the date of thecomplaint filed by him in 1996.

iv.The High Court erred in finding that the right of the Waqfstood extinguished by virtue of Section 27 of the LimitationCAct. As the Suit for Possession was against the transfereefrom the earlier Mutawalli, the possession would becomeadverse from the date of death or the resignation of theearlier Mutawalli under Article 134B of the earlier LimitationAct and upon the expiry of twelve years, as provided inArticle 96, and not from the date of the sale deed.D

v.Appellant would further contend that respondents beingbeneficiaries, could not acquire title, by adverse possession,of the waqf property.

vi.Reliance was placed on the following Judgments:

Ea.Chhedi Lal Misra (Dead) Through Lrs. v. CivilJudge, Lucknow and others7; b.K.S. Viswam Iyer (Dead) Through Lrs. v. State WakfBoard, Madras8; and

c.Wali Mohammed (Dead) by Lrs. v. Rahmat Bee (Smt)Fand others9.

10. Shri P.S. Patwalia, learned Senior Counsel, appearing on behalfof Respondent No.1 in the appeals makes the following submissions:

There is no valid waqf created as the waqif never actedGupon it. He never divested himself of the property as requiredunder Mohammedan law pertaining to Shi a Muslims. Under thelaw, it is mandatory that there must be a change in the character 7 (2007) 4 SCC 6328 1994 Suppl. (2) SCC 109H9 AIR 1999 SC 1136

8 1994 Suppl. (2) SCC 109

of possession of property. No change in mutation records wasmade by the waqif. The property remained in the person’s nametill his demise on 16.12.1958. Thereafter the property was mutatedinto the names of his three sons. Reliance is placed on the objectof the waqf dated 26.07.1934. There in it is indicated:

“The object of the Waqf reads inter alia”

With a view of perpetuating the name of my ancestors andwith the object of benefiting my offspring and their offspring andrelatives belonging to the family and their offspring, and, in theirabsence, the Shia Poor, the indigent, the miserable and Syeds-forthis purpose under Mohammedan law, in accordance with Act 6of 1913, I have by a formal statement (sigha) in accordance withthe Sharia put into Waqf (trust) the following property, thereby,excluding it from own estate, and having put into writing this deedof Waqfu’l aulad (Trust for offspring)….”

Clause E of Waqf Deed provides inter alia:

Clause E of Waqf Deed provides inter alia:

“E. In case, God forbid my generation exterminatesaltogether and none survives there and nor my wife PakeezaBegum or any other wife remains alive, then in such case theincome from the endowed property which will be manage by themembers of the committee will be spent for the charitable mattersin TAB A of the Convenience Compilation.”

11. It is further contended that all the property except a smallparcel admeasuring hundred bighas, which is the subject matter of thepresent case has been sold. In fact, the waqif himself sold a portion toone Mr. Manzoor Hasan. Almost 4272 bighas have been sold by thesons of Akbar Ali Khan. Neither the appellant nor the Waqf Boardobjected. The Waqf Deed contemplated proceeds of the Waqf Propertybeing used to repay outstanding debts. It was, therefore, not a validwaqf. The Waqf was created on 24.07.1934, at which time, theMussalman Waqf Validating Act, 1913 was in force. The Act did notprovide for registration of the Waqf. It was, thereafter, that theMussalman Waqf Act, 1923 was enacted. Thereunder, by virtue ofSection 2(e), waqf-alal-aulad was excluded from the operation of the1923 Act. Still further in the year 1930, the Mussalman Waqf ValidatingAct, 1930 was enacted, which declared only that the 1913 Act applied toWaqfs created before the commencement of the 1913 Act. It is thereafter A

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Athat the U.P. Muslim Waqfs Act, 1936 (hereinafter referred to as, ‘the1936 Act’) and the 1960 Act were enacted. Neither the 1936 nor the1960 Acts applied to the facts. Therefore, it is contended that the appellantcannot have a case that the alleged Waqf was registered either underthe 1936 Act or the 1960 Act. The object of the Waqf relied upon is tobenefit the offspring and their offspring and in their absence to the ShiaBpoor. The 1936 Act did not apply and Waqf could not have been registeredunder the 1936 Act. There is no religious or charitable purpose to theWaqf Deed dated 26.07.1934. Reliance is placed on the decision of this10Court in Fazlul Rabbi Pradhan v. State of West Bengal and others.The waqf not being registered, the summary procedure under the ActCwas not applicable. It is further complained that the appellants havedifferent versions in regard to the alleged registration. On the one hand,it is contended that registration was actually done in 1934, at which time,the 1923 Act was in force. The said Act, apart from specifically excludingwaqf-alal-aulad from its ambit did not provide for any provisions relatingto registration. It is further pointed out that during the hearing, a case isDset up that registration was done under the 1936 Act. In view of thespecific exclusion, by way of Section 2(2)(i), it does not apply as theentire income was going for the benefit of the members of the family.There is a procedure at any rate prescribed under the 1936 Act, in Section38. The same has not been followed. The third version, it is pointed out,Ewas that the waqf was registered under the 1960 Act. A Report of theController, which was for the first time relied upon in this Court andwhich was disbelieved by the Tribunal, cannot be the basis. Still further,as the entire income was dedicated to the descendants of the waqifstood excluded from the ambit of the 1960 Act, the claim was withoutbasis. Here again, Section 29 provided the procedure for registration.FThe same, having not been conformed with, it could not be said that thewaqf was registered under the 1960 Act. In view of the 1960 Act notbeing applicable, the bar to the compromise of the suit or proceedingrelating to waqfs, enacted in Section 69, was inapplicable. The summaryprocedure for recovery of Waqf Properties mentioned in Section 45BGwas not available. No reliance could be placed on the extract of theRegister of the Waqf purporting to establish the registration of the waqfand which was produced by Respondent No.4-Collector for the firsttime in Rejoinder submissions before this Court. The date of theRegistration Certification is 08.07.2008, which was after the passing ofH10 1965 3 SCR 307 / AIR 1965 SC 1722

the Order by the High Court. Here again, the procedure under Section36 of the Act was not followed. The particulars, which are to bemandatorily specified were missing. In the absence of a valid registration,the summary procedure provided in Section 52 of the Act was not availableto the appellants. The appellants are estopped from challenging thecompromise of 1974, after a period of 22 years. The parties to thecompromise acted upon the same. The second sale took place. Appellantbeing the son of the transferor stood estopped. The dismissal of the writpetition filed by Sujad Ali Khan as not pressed, has led to Order dated12.09.1974, becoming final. Respondents have been in continuous anduninterrupted possession. The Limitation Act was applicable to the Waqfproperties under Mohammedan Law till the Act came into force,whereunder, Section 107 specifically barred the application of theLimitation Act, 1963. Reliance is placed on the Judgment of the PrivyCouncil in 1940 XXI ILR 493. Also, support is drawn from the Judgmentof this Court in Dr. M. Ismail Faruqui and others v. Union of India11.Section 107 of the Limitation Act, 1963 was prospective in its application.Our attention is drawn to the Judgment of this Court in T. Kaliamurthi(supra). The respondents have been in possession of two-thirds of thesuit property since the first sale deed and the remaining one-third cameby their possession in 1974. Documentary evidence establishing suchpossession include the following:

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i.Order dated 16.07.1997 by the Controller, Waqf Board;

ii.Sale deed dated 26.09.1974;

iii.The averments in the appeal (No.4 of 1998) filed by therespondent before the District and Sessions Judge,Bulandshehar;F

iv.Order dated 30.05.1998 passed by the District Judge;

v.The Waqf Appeal No. 3 of 2002; vi.The findings of the Order of the Tribunal;

vii.The admission of the possession of the respondents by theGappellant in the impugned Judgment and, lastly,

viii.Reliance is placed on the very List of Dates submitted bythe appellant, which indicates that the Order of the Collectorwas for recovery of possession.

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A12. Thus, it is contended that the respondents have been inpossession of two-thirds since 1960 and remaining one-third since 1974and the rights of the respondents emerged before the Act came intoforce. Even counting from 1974 the respondents have perfected title inthe year 1986, i.e., 12 years from 1974. Thus, the Limitation Act, 1963would indeed apply as hostile possession had led to the ripening of theBtitle before Section 107 of the Act came into force.

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13. It is next pointed out that the appointment of Mutawalli did notlead to a fresh starting point of limitation. Decision of this Court inSyedYousuf Yar Khan and others v. Syed Mohammed Yar Khan andothers12 is set up to counter the said case. The High Court had rightlyCapplied Article 65 of the Limitation Act, 1963 in the present case. Thefirst respondent in the Appeals are not beneficiaries, it is next pointedout as no valid waqf has been established. There is no evidence to suggestthat the alleged waqf was generating any income which was beingdistributed amongst the beneficiaries. This meant that the three sons ofDthe original Wakif were not beneficiaries and were not so treated. It isalso pointed out that there is no bar in law preventing the beneficiary ofwaqf from claiming adverse possession. The bar applies only to aMutawalli. This is for the reason that the Mutawalli holds a fiduciaryduty towards the Waqf. It is open to the first respondent, it is lastlypointed out, to plead both title and adverse possession simultaneously.

EReliance was placed on M. Siddiq (Dead)Through LegalRepresentatives (Ram Janmabhumi Temple Case) v. Mahant SureshDas and others13 and Karnataka Board of Wakf v. Govt. of Indiaand others14.

SUBMISSIONS OF RESPONDENT NOS. 2 AND 4F

Arguments

14. Respondent Nos. 2 and 4 are Assistant Survey CommissionerWaqf, Bulandshehar and the Collector, Waqf, Bulandshehar, U.P.,respectively. The learned Senior Counsel, Shri S.R. Singh would submitthat the compromise application by the three sons of Akbar Ali Khanwithout prior approval of the Board, as contemplated in the Act of 1960,Gwas not maintainable in view of the requirement of Section 69 of the1960 Act. The Order of the Deputy Director of Consolidation setting 12 (1967) 2 SCR 318

13 (2020) 1 SCC 1H14 (2004) 10 SCC 779

aside the Order dated 29.01.1969 and also the Order dated 02.03.1972was illegal. The Controller of the Waqf Board held inquiry on the complaintbefore the Waqf Board. He found that the disputed property was Waqfproperty which was registered as such in the Register of Waqfs. It wasfurther found that the property was illegally sold without obtaining thesanction of the Board. Thereupon, the Controller issued the requisitionto the Collector to obtain possession. The High Court placed reliance onJudgment of this Court in Thakur Mohd. Ismail v. Thakur Sabir Ali15,that in a waqf-alal-aulad, the property stood transferred to the Almightybut still dismissed the Revisions without considering whether title couldbe acquired by adverse possession. He points out that the High Courtdid not consider the question whether Articles 65 and 96 of the LimitationAct could be invoked against the God/Almighty. The Order passed bythe Deputy Director, Consolidation was a nullity, being bereft of sanctionunder Section 69 of the 1960 Act. The result was the earlier decisions ofthe Consolidation Authorities stood restored wherein it was held that theWaqf in question was a valid Waqf. Section 49 of the U.P. Consolidationof Holding Act, 1953 bars the same issue being considered by the Tribunalwhich had the trappings of the Civil Court. The two sales were void abinitio under Section 51(1) and Section 51(A) of the Act. Again, supportis drawn from the Judgment in Thakur Mohd. Ismail(supra) as alsoAhmed G.H. Ariff and others v. Commissioner of Wealth Tax,Calcutta16. A beneficiary/Mutawalli had no right to transfer the waqfproperty. Article 65 of the Limitation Act did not apply to the proceedingsof the Act in view of Section 107 of the Limitation Act. It is furthercontended that Article 65 applied to suits. It did not apply to proceedings.Therefore, Section 27 of the Limitation Act, 1963 did not apply to thewaqf property which stood vested in Almighty. Reliance is placed onJudgment of this Court in Chhedi Lal Misra (Dead) Through Lrs. v.Civil Judge, Lucknow and others17. Paragraph-34A of the Waqf Deed,which contemplates spending of Rs.500/- on charitable purposes andparagraph-34E, which contemplates that in case all the descendants ofthe Waqif die, then, the waqf shall be used for charitable purposes, broughtthe waqf under the definition of ‘waqf’. A void document, as is the casewith the sale deed and the compromise, would be ignored without the 15 AIR 1962 SC 1722

16 AIR 1971 SC 169117(2007) 4 SCC 632

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Aneed to set aside the same. The respondent no.1 in both the Appealscould not be said to have perfected their title by adverse possessionagainst the State for which the period is 30 years. The litigation startedin 1997, i.e., 23 years from the date of the collusive compromise and thevoid sale deed. This argument is based on the fact that the waqf propertyis managed on behalf of God by the Waqf Board which comes under theBsuperintendence of the Government under the law.

ANALYSIS

15. Going by the contentions raised and, in the facts, the followingpoints are noted:

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1. Whether there was a valid Shia Waqf and whether it wasregistered?

2. Whether the compromise dated 13.02.1974 and the Orderdated 12.09.1974. are valid or are they void?

3. Whether the two sales, one on 14.10.1960 and the second on26.09.1974, in favour of the first respondent in the two Appealsbefore us, are void?

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4. Whether the action is barred by limitation?

5. Whether the High Court was correct in finding that the actionEwas barred as it is not Article 96 of the Limitation Act, whichapplied but Article 65? What is the interplay between thesaid Articles in the facts?

6. What is the impact of Section 27 of the Limitation Act, 1963in the facts?

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7. Whether Section 107 of the Act removes the bar of limitationat any rate?

16. The High Court in the impugned order has confirmed thefindings of the Tribunal that Respondent No.1 in both the cases haveacquired title by adverse possession. This is on the basis that the firstGsale was effected in the year 1960 and the second sale was effected inthe year 1974. The Act came into force with effect from 1.1.1996. It isfurther found that the period began to run from the dates of the two saledeeds as the sales were void. The further finding is that Article 96 of theLimitation Act, 1963 did not apply to the first sale of the year 1960. TheHsaid sale was effected at a time when Qasim the eldest brother was the Mutawalli. The sale was effected by a person who in other words wasnot the Mutawalli. Therefore, Article 96 did not apply. As far as thesecond sale is concerned, it was effected by Qasim Ali Khan on26.09.1974 purporting to convey his one-third right to his nephew who isthe first respondent in the other appeal. The further reasoning of theHigh Court is that the second sale deed was executed by the Mutawalli.The court thereafter demarcated the field covered by Articles 65 and96. The court then also took into consideration Section 27 of the LimitationAct, 1963. The Court found the proper interpretation was that Article 96was to be confined to suits to recover possession where the right torecover possession had already not been lost under Section 27 of theLimitation Act, 1963. Article 96, in other words, it was found, applied tovoidable transfers. On the said basis, finding that the second salerepresented a case of void transfer, it was found that Article 96 did notassist the appellant. It was also found that there is no obstacle in abeneficiary of a Wakf perfecting title by adverse possession. Such anobstacle, undoubtedly, existed in the case of a Mutawalli, a trustee or aco-owner. A beneficiary was none of the above. Thus, proceeding onthe basis that the first respondent in both the appeals were beneficiariesof the Wakf and as the sales under which they claimed were found to bevoid, the period of limitation contemplated under Article 65 of theLimitation Act began to run from the date of the sale. This meant thatwhen the Act was born on 01.01.1996, the title stood vested with thefirst respondent by adverse possession. It is further found that Section107 of the Act under which the Limitation Act was not applicable to theAct could not rescue the case of the appellant.

17. It is apposite that we advert to the relevant provisions of theLimitation Act. Section 27 of the Limitation Act provides that at thedetermination of the period limited to any person for instituting a suit forpossession of any property, ‘his right’ to such property would standextinguished. Article 65 of the Limitation Act, 1963 reads as follows:

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18. Article 134B of the Indian Limitation Act, 1908 was theEpredecessor provision holding the field till Article 96 supplanted it in theyear 1963. The following table sets out Article 134B of the LimitationAct, 1908 and Article 96 of the Limitation Act, 1963:

19. The distinction between the two Articles have been noted bythe judgment of this Court in T. Kaliamurthi and another v. Five GoriThaikkal Wakf and others18. It reads as under:

“35.……We have carefully noted two Articles viz., Article96 of the Limitation Act, 1963 and Article 134B of the LimitationAct, 1908 and we find that they are different from each otherinsofar as while under the 1908 Act 12 years was to run from thedeath, resignation or removal of the transferor, under the 1963Act the said period of 12 years was to run from the date of death,resignation or removal of the transferor, or the date of appointmentof the plaintiff as Manager of the endowment, whichever waslater.”

20. As far as the first sale is concerned, the sale was not effectedby the Mutawalli or the Manager of the Waqf. The sale was effected bythe brother of the Mutawalli. Therefore, the High Court is correct infinding that Article 96 will not come to the aid of the appellant.

21. As far as the second sale is concerned, it was no doubt,executed by the Mutawalli by sale deed 26.09.1974. This is a sale executedby him on the strength of the compromise which was entered into betweenthe three brothers on 13.02.1974. As we have noticed, the compromiseled to order dated 12.09.1974 being passed by the Deputy Director(Consolidation) setting aside the dismissal of the revision by order dated20.09.1969 as also the dismissal of the first restoration application dated02.03.1972. If the said sale is found to be valid, then obviously, the appellantwould fail. If on the other hand, the sale is void, the question would bewhether the proceeding initiated beyond 12 years from the date of thesale would be within time. If by seeking shelter under Article 96 of theLimitation Act, 1963, the period of limitation is to commence from thedate of resignation of the Mutawalli then would not the period of 12years commence from 01.05.1988 when Qasim Ali Khan, the Mutawalliresigned? Then, the period of 12 years would expire only in the year2000. Could it not be said that the action was not barred? It is here thatthe High Court reasons that Article 96 is not meant to apply to a voidsale. Instead, it applies to a voidable sale.

22. There cannot be any doubt that Waqf property can be thesubject matter of acquisition of title by adverse possession (see AIR

18 (2008) 9 SCC 306

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A1940 PC 116). That a Mutawalli however cannot acquire rights overwaqf property by adverse possession is not open to question. (See AIR1956 SC 713).

23. The High Court finds that Article 96 will not apply as it is acase of a void sale and not voidable sale. The reasoning is based on theBrationale furnished in the Judgment of the High Court of Orissa inChintamani Sahoo (deceased by LR.) and others v. Commissionerof Orissa Hindu Religious Endowments, Orissa and others19. In thesaid case, the Division Bench of the High Court was dealing with thefollowing facts:

CThe Mahant of a math executed certain permanent leases.It was without sanction of the Commissioner as contemplated inSection 58 of the Orissa Hindu Endowments Act, 1939. Suchleases were contrary to the aforesaid provision. The Mahant cameto be later dismissed. The Executive Officer of the math appointedby the Commissioner instituted proceeding under Section 68 ofDthe said Act for recovery of possession, which was allowed. Healso instituted proceedings for recovery of possession under Section25 of the Act. The Commissioner allowed the proceeding underSection 25 and directed issue of a requisition to the Collector forevicting the appellant who thereupon brought a suit for declarationEcontending that he had acquired an indefeasible right of tenancyby uninterrupted possession and sought an injunction. We maynotice the following finding:

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“8. The main question in controversy is as regardslimitation and adverse possession. The finding of fact is thatthe plaintiff was in possession of the lands from the respectivedates of the leases, namely, 26-7-1943, 8-1-1944 and 15-7-1944. The proceeding under Section 25 of the Orissa HinduReligious Endowments Act, 1951 was allowed on 30-10-69and direction was issued to the Collector for delivery ofpossession. The right to evict the plaintiff would be barred bylimitation after expiry of 12 years which comes to 1956 if thestarting point would be the dates of the respective leases. If,however, it is held that adverse possession of the plaintiff wouldstart only after the dismissal of the Mahant, the right to recover F

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in 1969 would be in time. It is contended on behalf of therespondents that the correct Article to apply is Article 96 ofthe new Limitation Act. On the other hand, it is contended onbehalf of the appellant that Article 65 of the new LimitationAct is the governing Article. The applicability of either Art. 65or Art. 96 would depend on whether the transfer was void abinitio or only voidable.

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10. An alienation made in contravention of a statutory provisionwhich is enacted in public interest is void. Admittedly thepermanent leases were granted in violation of Section 58(1)which prohibits grant of lease for more than five years withoutprior sanction. The transfer by permanent leases is, therefore,void. We are fortified in this view by the earlier decisions ofthis Court. In the case of Naba Kishore Panda v. Bulendra,(1974-40 Cut LT 1152), referred to above, Hon’ble S.K. Ray,J. (as he then was) held that a permanent lease created inexpress breach of the mandatory provisions of S. 58(1) is void.In a subsequent Single Bench decision in the case of ArjunaJena v. Chaitanya Thakur (1978) 45 Cut LT 461, Hon’bleB.K. Ray, J. also held that a lease created in violation of theprovisions of Section 58(1) of the old Act is a void one. For thisproposition, his Lordship relied on an earlier Division Benchdecision of this Court in the case of Shri ChiranjilalPatwari v. Commr., Hindu Religious Endowments, Orissa,Bhubaneswar (1974) 40 Cut LT 41. In another Single Benchdecision of this Court in the case of Gulam Ali Saha v. SultanKhan, (1966) 32 Cut LT 510 : (AIR 1967 Orissa 55), decidedby Hon’ble G.K. Misra, J. (as he then was) the question ofvalidity of an alienation of wakf property without permissionof the Court came up for consideration and it was held that thealienation, even though for consideration, was void ab initio. Itwas further held, relying on the principles laid down by thePrivy Council in Masjid Shahid Ganj v. S.G.P. Committee,Amritsar, AIR 1940 PC 116, that Article 144 of the old LimitationAct applies to such a case for acquisition of title by adversepossession. In an unreported decision of this Court in SecondAppeal No. 361 of 1966 disposed of on 3rd August, 1970

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A(Sambari Bewa v. Orissa Board of Wakfs) Hon’ble R.N.Misra, J. (as he then was) considered the validity of an alienationmade by a Mutwalli in violation of the provisions of Section36-A of the Wakf Act and came to hold that a permanent leasegranted in violation of the provisions of the Wakf Act is abinitio void (vide para. 8).”B6. Thereafter, the Court posed a question, as to whether it wasArticle 65 or Article 96, which applied. The Court thereupon held:

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“12. This Article refers to a transfer for valuableconsideration. A transfer which is void ab initio is in the eye ofClaw no transfer at all and hence will not come within the scope ofthis Article. This Article obviously applies to cases where thetransfer can be avoided or is voidable. But if the transfer is voidab initio then Art. 65 of the new Limitation Act would apply. Thetransferee’s possession since the date of the transfer becomesadverse from the date of the transfer inasmuch as the transfereeDhad no right in respect of the property at all and he was a meretrespasser.

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14. In AIR 1966 SC 859 (Srinivasa Reddiar v. N.ERamaswamy Reddiar), the question for decision before theirLordships was “Does Art. 134-B permit any distinction to be madebetween transfers effected by a previous manager on the basisthat the property transferred belongs to the religious endowmentand those made by him on the basis that the said property is hisown private property?” Their Lordships held that Article 134-BFdoes not permit any such distinction. It was held that the characterof the representations made by the previous manager in regard tohis relation with the property which is the subject-matter of transferis irrelevant for the purpose of Art. 134-B. The question whetherthis Article applies to void or voidable transaction did not arise forconsideration in that case.”G

(Emphasis supplied)

25. Since reference was made to AIR 1966 SC 859 and the samewas distinguished, we may advert to the said Judgment. The contention,which was taken before this Court was that when a transfer is made byHa Manager not as Manager but as an individual, such transfer being void ab initio, the possession of the transferee was adverse from the date ofthe transfer and therefore, in such a situation, Article 134B of theLimitation Act, 1908, the predecessor Article of Article 96 of the presentLimitation Act, with the difference we have noted in the third column,would not apply. This Court, in fact, noted that two Judgments of thePrivy Council, viz., 1900 27 Indian Appeals 69 (EC) and 37 Indian Appeals147 EC, supported the said contention. In regard to the first of the cases(27 Indian Appeals 69 EC, it is found that the Privy Council held thatwhere hereditary Trustees of a religious endowment sold their hereditaryright of management and transferred the endowed property, the saleswere null and void, if there was no custom providing otherwise. It wasfurther noted that the Privy Council was dealing with the case of Article124 of the Limitation Act, 1908. It was further found that what was soldwas the hereditary office as also the property, though, immovableproperties of the temple were also sold. The further reasoning was thatit was Article 144 of the old Act which operated to bar the suit after 12years of adverse possession. The Court noted certain divergence ofopinions in the Calcutta High Court. It further went on to doubt whetherthe first of the Judgment 27 Indian Appeals 69 (EC)could lead to theinference that if a part of the property was transferred by the Managerof a religious endowment, on the basis that it belonged to him, the rightof the succeeding Manager could be lost. Thereafter, the Court went onto find that the matter must be viewed in the context of Article 134B ofthe Limitation Act, 1908. This Court found that it did not make anydifference to the application of Article 134B, if the transfer is made onthe basis that the property belonged not to the endowment but to theManager. All that was necessary for the successor Manager to provewere found to be the following facts:

“(1) that the property belongs to the religious endowment; (2) thatit was transferred by a previous manager; and (3) that the transferwas for a valuable consideration. The character of therepresentations made by the previous manger in regard to hisrelation with the property which is the subject matter of transfer,is irrelevant for the purpose of Art. 134-B.”

26. The High Court of Orissa in Chintamani Sahoo (Deceasedby LR.)(supra), distinguishes the aforesaid Judgment on the basis thatthis Court was not considering the question whether Article 134B appliedto void or voidable transactions as it did not arise.

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A27. The appellants have placed reliance on certain Judgments ofother High Courts contending that they lay down a different principle. In20Chinna Jeeyangar Mutt, Tirupath v. C.V. Purushotham and others,a learned Single Judge traced the history of Articles 134A, Article 134B,Article 134C also with reference to the Third Report of the LawCommission of India. The said portion reads as follows:B

“12. The Law Commission observed in its 3rd report relating toLimitation Act, 1908 in paragraph 123 as follows:

“The starting point of limitation for suits covered by Article 134-Bis the date of death, resignation or removal of the transferor. ThisChas given rise to some difficulties in certain cases. Thus, anEndowment Commissioner may find it necessary to challenge analienation by one of the previous managers, after decades; or,there may be a gap of more than 12 years between the death,resignation or removal of one manager and the appointment of hissuccessor. In such cases, it would be more equitable to make theDdate of the plaintiff’s appointment as Manager the starting pointfor limitation. But there may be cases and circumstances wherethe existing provision may be more favourable to the institution.To provide for both contingencies, the later of the two dates shouldbe taken as the starting point of limitation.”E28. The Court also relied on the Statement of Objects and Reasons.It also referred to Srinivasa(supra). Still further, the Court set downthe position at law prior to amendment, as follows:

“23. From the above discussion the following position of lawemerges. A Mahant of a mutt is incompetent to create any interestFin respect of muth property to enure beyond his lifetime. He canalienate the property permanently only for legal necessity or benefitto the estate. In the case of an alienation made by him, which wasnot for legal necessity or benefit the said alienation becomesvoidable at the instance of his successor. The right to question theGalienation accrues to the successor only on the alienor’s death.The adverse possession of the alienee also begins to run onlyfrom the date of his death and not until then. A permanent leaseof temple lands is also an alienation of this nature. If it was not forlegal necessity or benefit it is not binding on the mutt. The cause of action which once accrues continues. The right of the muttwould be extinguished in regard to that property at the end of theperiod prescribed by the law of limitation. Each succeeding mahantdoes not get a revival of the cause of action in his favour. Theappointment of successor was never considered to give a freshstart of limitation, under the law as it stood prior to 1963. Whetherit was an alienation made for legal necessity or not was a questiondepending upon the facts and circumstances of each case.”

29. Thereafter, the learned Judge went on to lay bare the truepurport of Article 134B:

“24. Such was the state of law when the Limitation Act wasamended in 1963. The legislature must be presumed to know theexisting law and the interpretation given by the courts to the lawthen in force. If the right to question a voidable alienation in respectof a Hindu or Muhammadan religious or charitable endowment isdenied to a mutt or religious institution, such an institution loosesthe properties once for all. As the State was interested in protectingand safeguarding the properties of such institutions, it brought aboutan amendment to achieve that purpose in 1963. The LawCommission, which was appointed to go into that questionsuggested that in the case of Hindu, Muslim and Buddhist religiousor charitable endowments, a fresh start or a terminus quo shouldbe given for actions brought by the succeeding Mahant to setaside such alienations, which were not made for legal necessityor benefit of the institution. The Legislature also accepted thatview and inserted in column 3 to Article 96, which previously hadonly the following words: “the death, resignation or removal ofthe transferor” the following words: “or the date of appointmentof the plaintiff as manager of the endowment, whichever is later”.It is obvious from the plain words of the amendment that thelegislature had in view such alienations about which a right toinstitute suits has already become barred and therefore it wantedto provide a fresh period of limitation in regard to them. TheLegislature was also aware of the fact that according to the lawas laid down by decisions prior to 1963, the date of appointmentof the plaintiff as manager by an endowment did not give himfresh start of limitation for that purpose. It was only to remedythe obvious difficulties felt in the interpretation of such law that AB

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Athis amendment has been brought about. By virtue of thisamendment, if the plaintiff had been appointed within 12 yearsfrom the date of the filing of the suit, he can question any alienation,which was not made for legal necessity or benefit to a mutt by aprevious manager. The fact that 12 years have elapsed from thedate of death, resignation or removal of the transferor managerBwould not stand in the way of the plaintiff in such a suit fromrecovering the property. That is clear from the last three words inthe amendment ‘whichever is later’, purposely introduced by theLegislature. In view of this amendment the courts have got toapply the plain words of the Statute to any action brought by anyCmanager of a Hindu, Muslim or Buddhist religious or charitableendowment, to recover possession of the movable or immovableproperty of an endowment which was the subject of an alienationby a previous manager for valuable consideration. It is also clearthat the transferor manager need not be the immediate predecessorof the plaintiff, that files such a suit. From a reading of Article 96,Dsuch a conclusion cannot be arrived at. It is enough if the alienationwas made by a previous manager. The first column does not saythat it should be by the previous manager.”

30. In the State Wakf Board, Madras, superseded by theGovernment of Tamil Nadu in G.O.Ms. No. 2031, dated 20th November,E1961 and appointed by G.O.Ms. No. 2264, dated 30th December, 1967,21The Special Officer for Wakfs Madras v. Subramanyam and others,the learned Judge was, inter alia, dealing with the following facts:

The suits were filed for recovery of properties alleged tobelong to the waqf, which were dismissed on the ground ofFlimitation. The Court drew upon the later part of the third columnof Article 96 and found that the suit was within time. In the saidcase, in fact, the Waqf Board was the plaintiff. The Single Judgefound that the Waqf Board was constituted only in the year 1953.The suits were instituted in 1967. In assigning the role of theGManager to the Board within the meaning of ‘manager appointed’in the third column of Article 96, also, the Court drew supportfrom the Judgment of learned Single Judge inChinna JeeyangarMutt(supra). We may notice the following reasoning:

“6. The argument of the learned counsel now is that only whenthe Wakf Board assumes direct management of the wakf, it canbe said to be a manager as contemplated by the third column inArt. 96 of the new Act and that so long as there is no assumptionof direct management, the Wakf Board cannot be said to be amanager. I am unable to accept this argument, from one point ofview. Neither S. 42 nor S. 43-A of the Wakfs Act on which reliancehas been placed uses the word, “Manager”. The word, “Manager”in relation to a religious or charitable endowment is not a term ofart. The said word denotes the person who is in charge of theadministration of the endowment or manages the property orsupervises the performance of the charity and the word is one ofvery wide and general import. As a matter of fact, the judgmentof Natarajan J., has referred to the provisions contained in S.15(2) of the Wakfs Act. S. 15(1) of the Wakfs Act provides thatsubject to any rules that may be made under the said Act, thegeneral superintendence of all Wakfs in a State shall vest in theBoard established for the State; and it shall be the duty of theBoard so to exercise its powers under the Act as to ensure thatthe Wakfs under its superintendence are properly maintained,controlled and administered and the income thereof is duly appliedto the objects and for the purposes for which such Wakfs werecreated or intended. Sub-S. (2) or S. 15, without prejudice to thegenerality of the powers conferred by Sub-S (1) by way ofillustration, enumerates certain specified power also. One suchspecified power so enumerated is contained in S. 15(2)(h), whichenables the Wakf Board to take measures for the recovery of lostproperties of any Wakf. S. 15(2)(i) also enables the Wakf Boardto institute and defend suits and proceedings in a court of lawrelating to Wakfs The combined effect of S. 15(1) and 15(2) ofthe Wakfs Act will certainly be sufficient to designate the WakfBoard as a manager for the purpose of recovery of possession ofWakf property and consequently it can certainly be termed as“Manager” contemplated by the third column to Art. 96 of thenew Limitation Act and if so construed, the constitution of theWakf Board under the statute can certainly be construed to bethe appointment of the Wakf Board as Manager of the Wakf inquestion, because even the word, “appointment” just like the word,“Manager” is not a term of art and therefore has to receive itsordinary, natural and normal meaning.”

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A31. Before we finally pronounce on the question as to whetherArticle 96 would apply in respect of a void transaction, we deem itappropriate to deal with certain other aspects. The waqf in question isthe creation of Akbar Ali Khan on 26.07.1934. It is the case of theappellant that it was registered as waqf al aulad at No. 1476. Thetransferor of the second sale deed, viz., Qasim Ali Khan took over asBthe Mutawalli when Akbar Ali Khan, his father, died on 16.02.1958. It isnot in dispute that Qasim Ali Khan instituted OS 1 of 1950 wherein heimpleaded his father Akbar Ali Khan and the transferee of a part of thewaqf property which was effected by his father. The Decree of theTrial Court in favour of the plaintiff was affirmed by the High Court byCJudgment dated 11.07.1962. The Judgment affirmed the view of theTrial Court that there was a valid waqf. It is categorically found by theHigh Court that all the legal requirements in respect of the creation ofthe waqf by a Shia under the Mohammedan law had been made out. Itwas held that Akbar Ali Khan did create a waqf-alal-aulad on 26.07.1934which was effective in law. Therefore, as between the waqif who wasDthe first Mutawalli also, and between his son, Qasim Ali Khan, the findingsin the Judgment of the High Court clearly holds that there was a validwaqf. After the death of Akbar Ali Khan, his son Qasim Ali Khan tookover as Mutawalli. He instituted OS 421 of 1959. Therein, his brotherswere the defendants, viz., Kasim Ali Khan and Raza Ali Khan. It wasEthe act of the defendants getting their names mutated in the RevenueRecords, which occasioned the said suit. It is during the pendency of thesuit, i.e., on 14.10.1960, one of the defendants Kazim Ali Khan transferredhis alleged, one-third right in favour of the first respondent in one of theAppeals before us. The suit was decreed. The High Court in the Appealfiled by the defendants, remanded the matter back by Order datedF25.09.1963. However, while it was so, consolidation proceedingscommenced under the U.P. Consolidation of Proceedings Act, 1953.Under the provisions of the said Act, the proceedings in the suit wouldabate when consolidation commences. Thereafter, it is the ConsolidationOfficer, whose decision is appealable to the Settlement Officer and whichGlatter Authority’s decision can be revised in a Revision by the DeputyDirector, who hold sway. The plaintiff in the suit, viz., Qasim Ali Khan,accordingly, placed his objections against the name of his brothers beingentered. The objections of Qasim Ali Khan were found to be with merit.Resultantly, the names of the brothers were directed to be removed andtheir place, the name of the waqf was directed to be entered. The brothersH

of Qasim Ali Khan unsuccessfully appealed before the SettlementOfficer. A Revision carried by them before the Deputy Director provedequally unsuccessful as it was dismissed by Order dated 29.01.1969.The Order was passed on merit. It reads, inter alia:

“3. That I find that Wakf is admitted between the parties. Thedisputed land was sir. It after the execution of wakf, the sir shouldhave been converted into ex-proprieto tenancy. It could have beeninferred that the rights of ex-proprieto tenancy which ultimatelyconverted at sirdari right after the date of vesting, did not belongto the wakf and then there was justification for continuances ofthe applicants a successors of their father. But, the position isotherwise, when the father of the parties created at wakf, thedisputed land which was sir, was not converted into expropriatorytenancy and was recorded bhundhary after the date of vesting. Ithas therefore, to be concluded that absolute rights in the landwere transferred to the almighty and the proper course, therefore,was to record the opp. Party as Mutwalli and expunge the namesof the applicants. In the litigation in regular courts, the civil courthad also held the same view but the matter could not becomefinal in these courts. On account of advent of consolidation. Inthese circumstances, I come to conclusion that the orders of theLower Courts are sound and deserves no interference.”

32. The defendants, viz., Kasim Ali Khan and Raza Ali Khan fileda Restoration Application which came to be dismissed by Order dated02.03.1972. Yet another Restoration Application was filed. It is in thesame that a compromise was entered into between Qasim Ali Khan,Kasim Ali Khan and Raza Ali Khan, all the three brothers, on 13.02.1974.They purported to disown the waqf. They proclaimed that it had nottaken effect. It was based on this compromise that the second RestorationApplication was allowed. The earlier orders rejecting the Revision andthe Restoration being dismissed, were set aside by the Deputy Director.The compromise dated 13.02.1974 formed the basis for the same. It isacting on the said compromise and the Order passed thereon that QasimAli Khan purported to convey his one-third share to his nephew by saledeed dated 12.09.1974.

33. The 1960 Act was in force. Section 69 of the Act provided asfollows:

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“69. Bar to compromise of suits by or against mutawallis. –

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No suit or proceeding pending in any court by or against themutawalli of a wakf relating to title to wakf property or the rightsof the mutawallis shall be compromised without the sanction ofthe Board.”

B34. Also, Sections 49A and 49B of the said Act read as follows:

“49A Transfer of immovable property of waqf- Notwithstandinganything contained in the deed or instrument, if any, by which thewaqf has been created, no transfer by way of- C(i) sale, gift, mortgage or exchange; or

(ii) lease for a period exceeding three years in the case ofagricultural land, or for a period exceeding one year in the case ofnon-agricultural and or building of any immovable property of thewaqf shall be valid without the previous sanction of the Board.”

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49-B. Recovery of waqf property transferred in contravention ofSection 49-A.—(1) If the Board is satisfied after making aninquiry in such manner as may be prescribed that any immovableproperty entered as property of a waqf in the register of waqfsmaintained under Section 30, has been transferred without theprevious sanction of the Board in contravention of the provisionsof Section 49-A, it may send a requisition to the Collector withinwhose jurisdiction the property is situate to obtain and deliverpossession of the property to it.

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(2) On receipt of a requisition under sub-section (1), the Collectorshall pass an order directing the person in possession of the propertyFto deliver the property to the Board Within a period of thirty daysfrom the date of the service of the order.

(3) Every order passed under sub-section (2) shall be served—

(a) by giving or tendering it or by sending it by post to the personfor whom it is intended; or G

(b) if such person cannot be found, by affixing it on someconspicuous part of his last known place of “bode or business, orby giving or tendering it to some adult male member or servant ofhis family or by causing it to be affixed on some conspicuous Partof the property to which it relates:

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Provided that where the person on whom the order is to be servedis a minor, service upon his guardian or upon any adult member orservant of his family shall be deemed to be service upon the minor.

(4) Any person aggrieved by an order of the Collector under sub-section (2) may, within a period of thirty days from the date of theservice of the order, prefer an appeal to the Court of the DistrictJudge within whose jurisdiction the property is situate.

(5) The District Judge may either dispose of the appeal himself ormay transfer it to the Court of any Additional District Judge orCivil Judge under his administrative control and may also withdrawany such appeal and either dispose of the same or transfer it toany other Court of Additional District Judge or Civil Judge underhis administrative control, and in every case the decision of thecourt shall be final.

(6) Where an order passed under sub-section (2) has not beencomplied with and the time for appealing against such order hasexpired without any appeal having been preferred or the appeal,if any, preferred within that time has been dismissed, the Collectorshall obtain possession of the property in respect of which theorder has been made, using such force as may be necessary, forthe purpose, and then deliver it to the Board.

(7) In exercising his functions under this section the Collectorshall be guided by such rules as may be made in that behalf by theState Government.”

35. Sections 49A and 49B were inserted in the 1960 Act by wayof U.P. Act 28 of 1971. Therefore, the sale deed dated 26.09.1974 byQasim Ali Khan in favour of his nephew, being in the teeth of theprohibition against a sale without the previous sanction of the Board,was illegal. It is this narrative which gives rise to the question as towhether the sale is void as it was in transgression of a statutory mandate.If it is void for such a reason, would it pave the way for the beginningand the running of the period of adverse possession by the transferee.Would it not open the doors for applying Article 65 of the LimitationAct? Would it not then, equally, invite Section 27 of the Limitation Act toits doorstep? Resultantly, on the expiry of 12 years from 13.09.1974,would the title set up by the appellant, be extinguished? If that is so,would not the complaint filed in the year 1997, after the Act came into A

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Aforce on 01.01.1996, leading to invoking the power under Section 52 ofthe Act, be impermissible?

36. Section 52 of the Act, which is the fountainhead of the actionby the Controller of the Waqf Board and the Collector, is a sequel toSection 51. Section 51(1), inter alia, before its substitution by Act 27 ofB2013, read as follows:

“51(1) Notwithstanding anything contained in the wakf deed, anygift, sale, exchange or mortgage of any immovable property whichis waqf property, shall be void, unless such gift, sale, exchange ormortgage is effected with the prior sanction of the Board:

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Provided that no mosque, dargah or khangah shall be gifted, sold,exchanged or mortgaged except in accordance with any law forthe time being in force.”

37. We may only notice that Section 51(1)(a) as substituted byAct 27 of 2013, subject to the provisos declares a sale, gift, exchange orDmortgage or transfer of waqf property to be ab initio void. Section 52 ofthe Act provides that if the Board is satisfied, after making any inquiry,as may be prescribed, that any immovable property of a waqf enteredas such in the Register of Waqfs maintained under Section 36, has beentransferred without previous sanction of the Board in contravention ofESections 51 or 56 of the Act, it may send a requisition to the Collector ofthe place within which the property is situated to obtain and deliverpossession. The Collector is bound to pass an order directing the personin possession to deliver the property to the Board within 30 days fromthe receipt of the Order. It is under this provision that the impugnedOrders came to be passed.F

38. It will be noticed that the Act came into effect on 01.01.1996.Section 52 empowers the Board to send a requisition to the Collector, ifproperty has been transferred without the previous sanction of the Boardin contravention of Section 51, inter alia. We have noticed that Section51 has provided that any sale of property, which is waqf property, withoutGthe previous sanction of the Board, would be void. The two sales in thiscase took place prior to 01.01.1996. The first sale is dated 14.10.1960whereas the second sale is dated 13.09.1974.

39. Section 112 of the Act provides for repeal and sales. It readsas follows:

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“112. Repeal and savings. —(1) The Wakf Act, 1954 (29 of 1954)and the Wakf (Amendment) Act, 1984 (69 of 1984) are herebyrepealed.

(2) Notwithstanding such repeal, anything done or any action takenunder the said Acts shall be deemed to have been done or takenunder the corresponding provisions of this Act.

(3) If, immediately before the commencement of this Act, in anyState, there is in force in that State, any law which corresponds tothis Act that corresponding law shall stand repealed:

Provided that such repeal shall not affect the previous operationof that corresponding law, and subject thereto, anything done orany action taken in the exercise of any power conferred by orunder the corresponding law shall be deemed to have been doneor taken in the exercise of the powers conferred by or under thisAct as if this Act was in force on the day on which such thingswere done or action was taken.”

40. Section 49B of the 1960 Act is pari materia with Section 52 ofthe Act. In other words, it provided that the Board may, if a transfer ismade contravening Section 49A of the 1960 Act, send requisition to theCollector for recovery of possession. Section 49A of the 1960 Act alsoprovided on similar terms as provided in Section 51(1) of the Act that fora sale of property comprised in a waqf, previous sanction of the Boardwas necessary. As far as Sections 49A and 49B came to be inserted byAct 28 of 1971 and the second sale took place in 1974, which is after theinsertion of Sections 49A and 49B in the 1960 Act, therefore, the power,indeed, vested with the Board to take action for recovery of possessionunder Section 49B. Under Section 112(3) of the Act, we proceed on thebasis that the 1960 Act would stand repealed. However, the provisodeclares that the repeal would not affect the previous operation of thecorresponding law. The corresponding law, in this case is Section 49Aread with Section 49B. Action taken in the exercise of the powerthereunder, is to be deemed as taken in the exercise of powers under theAct. The powers under the Act must be treated as flowing from Section52 of the Act. For the said purpose, the proviso to Section 112(3) providesthat the provisions in the Act, which in this case would be Section 52,must be treated as being on the Statute Book.

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A41. But then could it be said that no action has been taken underSection 49B of the 1960 Act with regard to the transfers in question and,therefore, Section 112(3) of the Act, may have no application? Weproceed on the basis that, the power exists as for reasons to follow, theappellants will fail on surer foundation.B42. A contention has been raised that the waqf-alal-aulad in A

B42. A contention has been raised that the waqf-alal-aulad inquestion cannot be treated as a waqf under the Act. It is the case of thefirst respondent that the Mussalman Waqf Validating Act, 1913 did notprovide for registration of the waqf. Though the Mussalman Waqf Act,1923 was enacted, waqf-alal-aulad was excluded from its operation.Neither the 1936 Act nor the 1960 Act applies and the appellant cannotCclaim that the waqf was registered under either enactment. There is noreligious or charitable purpose. In view of the specific exclusion in the1936 Act, it is contended that the Act did not apply to the waqf as theentire income was to go for the benefit of the members of the family ofthe waqif.

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43. The waqf in question is created by Akbar Ali Khan by deeddated 26.07.1934. It is, no doubt, a waqf-alal-aulad. A waqf-alal-aulad isa waqf under Mohammaden Law. It was the Privy Council which in thecase of Abdul Fatah Mohammad Ishak v. Russomy DharChaoudhary22 held that if the charity is illusory or so small, it could notEbe treated as a waqf. This Judgment led to the passing of the MussalmanWaqf Validating Act, 1913. Sections 3 and 4 of the said enactment readsas follows:

“3. It shall be lawful for any person professing the Musalmanfaith to create Wakf which in all other respects is in accordingFwith the provisions of Musalman Law, for the following amongother purposes: - (a) For the maintenance and support wholly or partially of hisfamily, children or descendants and (b) where the person creating a Wakf is a Hanafi Musalman, alsoGfor his own maintenance and support during his life-time or forthe payment of his debts out of the rents and profits of the propertydedicated.

Provided that the ultimate benefit is in such cases expresslyor impliedly reserved for the poor or for any other purposerecognized by the Musalman Law as a religion, pious or charitablepurpose of a permanent character.

4. No such Wakf shall be deemed to be invalid merelybecause the benefit reserved therein for the poor or other religious,pious or charitable purposes of a permanent nature is postponeduntil after the extinction of the family, children or descendants ofthe person creating the Wakf.”

44. Thereafter, the Mussalman Wakf Act, 1923 came to be passed.It applied to the whole of British India. The definition of Wakf containedin Section 2(e) was as follows:

“2(e) ‘Wakf’ means the permanent dedication by a personprofessing the Musalman faith of any property for any purposerecognized by the Musalman Law as religious, pious or charitable,but does not include any Wakf, such as is described in S.3 of theMusalman Wakf Validation Act, 1913, under which any benefit isfor the time being claimable for himself by the person by whomthe Wakf was created or by any of his family or descendants.”

(Emphasis Supplied)

45. Section 3 of the 1923 Act obliged the Mutawalli to furnishstatement containing certain particulars to the competent Court. Noticeof the Statement was to be published under Section 4. The 1923 Actprovided for audit of accounts and the provision for expense which couldbe incurred by the Mutawalli came to be inserted. Section 10 providedfor penalty. Certain waqfs were excluded from its purview under Section12. In the United Provinces, which meant the United Provinces of Agraand Awadh, the 1936 Act, came to be enacted. Section 2 thereof read asfollows:

“2(1) Save as herein otherwise specifically stated, this Act shallapply to all Wakfs, whether created before or after this Act comesinto force, any part of the property of which is situate in the UnitedProvinces.

(2) This Act shall not apply to:-

(i) a Wakf created by a deed, if any, under the terms of which notless than 75 per cent of the total income after deduction of land A

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revenue and cesses payable to Government of the propertycovered by the deed of Wakf, if any, is for the time being payablefor the benefit of the Wakif or his descendants or any member ofhis family:

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(ii) a Wakf created solely for either of the following purposes:

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(a) The maintenance and support of any person other than theWakf or his descendants or any member of his family, (b) The celebration of religious ceremonies connected with thedeath anniversaries of the Wakif or of any member of his familyor any of his anscestors; C

(c) The maintenance of private imambaras, tombs, and grave-yards, or (d) The maintenance and support of the Wakif or for payment ofhis debts, when the Wakif is a Hanafi Musalman; and D

(iii) the Wakfs mentioned in the schedule.

Provided that if the Mutawalli of a Wakf to which this Actdoes not apply wrongfully sells or mortgages, or suffers to be soldin execution of a decree against himself, or otherwise destroysthe whole or any part of the Wakf property, the Central BoardEmay apply all or any of the provisions of this Act to such Wakf forsuch time as it may think necessary.

Explanation-A Wakf which is originally exempt from the operationof this Act may, for any reason subsequently, become subject tosuch operation, for example, by reason of a higher percentage ofFits income becoming available under the terms of the deed forpublic charities.”

(Emphasis supplied)

46. Section 3(1) of the 1936 Act, defined ‘Wakf’ as follows:

“3(1) ‘Wakf’ means the permanent dedication or grant of anyproperty for any purposes recognized by the Musalman law orusage as religious, pious or charitable and, where no deed of Wakfis traceable, includes Wakf by user, and a Wakif means any personwho makes such dedication or grant.”

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47. Section 38 (1) of the 1936 Act, read as follows:

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“38(1) Every Wakf whether subject to this Act or not and whethercreated before or after the commencement of this Act shall beregistered at the office of the Central Board of the sect to whichthe Wakf belongs.

(Emphasis Supplied)

48. It is, no doubt, true that in Fazlul Rabbi Pradhan(supra), inthe context of the question whether the waqfs were affected by thepassing of the West Bengal Estates Acquisition Act, 1953, and, in that,the waqf in question fell within the definition of the words ‘charitablepurpose’ and ‘religious purpose’, the Court held, inter alia, as follows:

“13. These cases led to agitation in India and the MussalmanWakf Validating Act 1913 (6 of 1913) was passed. It declared therights of Mussulmans to make settlements of property by way ofwakf in favour of their families, children and descendants. Forthe purposes of the Validating Act the term “wakf” was definedto mean “the permanent dedication by a person professing theMussalman faith of any property for any purpose recognized bythe Mussalman law as religious, pious or charitable”. This gave awider meaning to the word wakf but only for the purpose of takingthem out of the invalidity which would have otherwise existedand which was already authoritatively stated to have so existed.

14. After the passage of these two Acts wakfs, in whichthe object was the aggrandisement of families of wakifs withouta pretence of charity in the ordinary sense, became valid andoperative. But the intention of the Validating Act was not to givea new meaning to the word “charity” which in common parlanceis a word denoting a giving to someone in necessitouscircumstances and in law a giving for public good. A private giftto one’s own self or kith and kin may be meritorious and pious butis not a charity in the legal sense and the courts in India havenever regarded such gifts as for religious or charitable purposeseven under the Mahomedan law. It was ruled in Syed MohiuddinAhmed v. Sofia Khatun [44 CWN 974] that neither the WakfValidating Act 1913 nor the Shariat Act 1937 had the effect ofabrogating the Privy Council decisions on the meaning of “charitablepurpose” as such.”

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A49. No doubt, the Court was dealing with a case of a waqf-alal-aulad. The Judgment must essentially be viewed in the context of thedefinition of ‘religious and charitable purpose’ provided in the Act inquestion.

50. The Wakf in question is dated 26.07.1934. The 1936 Act appliedBto Wakfs created before or after the commencement of the Act.However, Section 2(2) declares that the Act shall not apply to certainwaqfs. They included a waqf whereunder not less than 75 per cent ofthe total income, after deduction of certain sums, was for the time beingpayable for the benefit of the waqif or his descendants. However, Section38(1) of the 1936 Act made it clear that every waqf, whether subject toCthe Act or notand whether created or after the commencement of the1936 Act, shall be registered. Proceeding on the basis that the waqfdated 16.07.1934 was waqf-alal-aulad and which, in terms of Section2(2)(i), was not subject to the provisions of the 1936 Act, it wascompulsorily registerable in view of Section 38(1). Any waqf which isDregistered under the 1936 Act would also be deemed to be registeredunder the 1960 Act. That is, though the 1936 Act did not apply to certainwakfs, but when it comes to registration under Section 38, it wasmandatory for every wakf to be registered (i) whether subject to theAct and ii) whether created before the Act or not. Thus, the registrationof the Wakf dated 16.07.1934, was in fact compulsory under Section 38Eof the 1936 Act.

51. It has been contended by Shri P.S. Patwalia, learned SeniorCounsel that there was really no waqf as known in law and the waqf inquestion contemplated only disbursement of the entire income for thebenefit of the descendants of the waqif. Quite apart from the fact thatFthe question engaged the attention of the Civil Court, including the HighCourt, in the first round of litigation, wherein, it was found that there wasa valid waqf from the standpoint of the Shia law and the ConsolidationAuthorities also found that there was a waqf till the Deputy Director,Consolidation revisited the matter only on the basis of the compromiseGbetween the brothers, the terms of the waqf did contemplate a certainsum being set apart for charitable purposes as correctly pointed out byShri S.R. Singh, learned Senior Counsel for respondents 2 and 4. In thisregard, we notice the stipulation in the deed that a sum of Rs. 500/- willbe spent on charitable purpose such as Muazzin and lighting in the mosqueand emambara, majlallse ashra of the sacred month of Moharram. NoH

doubt, there is the residuary clause, which reveals that the wakif hasprovided that if descendants cease to exist, the income from the endowedproperty will be managed by a Committee to be spent for charitablepurposes.

52. A Division Bench of the High Court of Allahabad in the caseof U.P. Sunni Central Board of Waqf and Another v. Hasan JehanBegum and Another23 had to deal with an argument that in a case ofwaqf-alal-aulad, having regard to the definition of the word ‘waqf’ inSection 3(11) of the 1960 Act, whether the entire properties werededicated for religious, pious or charitable purpose, as contemplated inSection 3(11), defining the word ‘waqf’ or only to the limited extent, i.e.,to the extent of the income which was earmarked for such purposes.We may note in this regard, the following discussion:

“5… With great respect, we are unable to find ourselves inagreement with the view taken by the learned single Judge as tous it appears that the extent of property cannot be determined onthe basis of the income. It is the dedication which has to be seen,if the entire property is dedicated for two purposes, namely, forsecular purposes and for religious, pious or charitable purposes,then the entire property will be deemed to be dedicated for bothpurposes. Unless it is possible to determine the extent to whichthe property has been dedicated for religious, pious and charitablepurposes, the entire property will have to be deemed to be dedicatedto God and subject-matter of the Waqf. For excluding the propertyit should either be known or be determinable from the deed ofwaqf that a particular property or part thereof is not dedicated.Learned counsel for the petitioners-respondents contended that itis the income that is the criterion for determining the extent ofdedication. But, we find that it is not the income which iscontemplated by the definition of waqf but the property. Therelevant words are ‘to the extent to which the property isdedicated’. The income arises out of property and it can varyfrom time to time. It may be larger than the amount fixed for thereligious, pious or charitable purposes or may be less than that. Itis also not possible to allocate property relative to the amount orto say that this amount of money must come from a particularportion or property out of the lot or from a particular proportion of 23 AIR 1977 All 18

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Athat property. The entire property, which is the subject-matter ofthe waqf, is liable for meeting the purposes religious, pious orcharitable. If the entire property, which is the subject-matter ofthe waqf, is liable for meeting the expenses, it cannot be said thatthe waqf or dedication is only to the extent of some undeterminableand unascertainable property out of the total property, which isBthe subject-matter of the Waqf. In our opinion, unless it is possibleto determine the extent of the property out of the property whichis the subject-matter of the waqf-alal-aulad meant for religious,pious or charitable purposes, the entire property will be the subject-matter of the waqf within the meaning of the Waqfs Act. TheCquestion of determining the extent can practically arise only in acase in which there are a number of properties and some of themare earmarked for purposes recognised as religious, pious orcharitable and others earmarked for the benefit of the waqif orhis descendants. It may also arise in a case where a share in aproperty or a part of a property has been earmarked for the twoDpurposes. In the present case neither of the two waqfs containsuch a direction. The entire property has been dedicated for thepurposes recognised as religious, pious and charitable. It may alsobe possible to say that the property, which has been dedicated forpurposes religious, pious or charitable, is the entire extent of theEproperty. The entire properties under the deeds will, therefore, bedeemed to be waqf within the meaning of Section 3(11) of theWaqfs Act.”

53. We would think that the aforesaid view represents the correctapproach and the extent of the income, which is set apart for the purpose,Fbe it religious, pious or charitable, in the facts, cannot detract from thededication of the whole property.

54. Another contention taken is that vast extents of wakf propertyhad been alienated by the sons of the original wakif and only about 100bighas which constitute the subject matter of the appeals before usGremained. We are of the view that the argument is beside the point. Thefact that the property of the waqf has been dealt with in a manner,which is illegal, or that it was not questioned, cannot deflect us fromeither finding that there was a valid waqf or that the property whichremained of the waqf, must be dealt with in accordance with law. Thecompromise before the Deputy Director (Consolidation) and the orderH

based on the same are in the teeth of Section 69 of the 1960 Act, therefore,the orders passed by the Consolidated Officer and Settlement Officerabout the Waqf would revive.

55. Two questions remain. The first question, which we mustconsider is, whether a beneficiary of a waqf can succeed on the strengthof the plea of adverse possession in regard to the property of the waqf.The High Court has proceeded on the basis that a Mutawalli may not beable to acquire title by adverse possession. Equally, a trustee and a co-owner stand precluded in this regard, it is noted. A beneficiary of awaqf, however, being neither a trustee nor a co-owner of waqf property,can acquire title through adverse possession even if it is the property ofthe waqf it is found.

56. A beneficiary of a waqf cannot be described as a stranger tothe waqf. No doubt, a beneficiary is not to be conflated in his positionwith a Mutawalli. The Mutawalli is a manager of the waqf. The propertyof the waqf, we must remind ourselves, in law vests in the Almighty.The Mutawalli acts merely as the manager. For the purposes of Section10 of the Limitation Act, no doubt, he is treated as a trustee. A plea ofadverse possession undoubtedly requires the requisite intention, viz.,animus possidendi. This is besides actual possession for the requiredperiod. Does the beneficiary occupy a fiduciary capacity qua the waqfproperty, which would prevent him from advancing a claim of adversepossession? What in the context do the words ‘fiduciary capacity’ convey?A beneficiary would be entitled to receive benefits in terms of the waqfdeed. Does he have any obligation in regard to the waqf property? Isthere a duty in other words which he must perform by virtue of the factthat he is constituted a beneficiary under the waqf? Is the assertion ofhostile title, an indispensable requirement to constitute adverse possessionirreconcilable and incompatible with the position of the beneficiary? Inthe case of adverse possession, since a requirement is that the possessionmust be hostile to the real owner and since the real owner is the Almighty,the requirement would be that such a person must has the necessaryanimus to hold contrary to the title of God. In the case of a co-ownerwhile mere assertion of title in himself may hardly suffice as thepossession of a co-owner is taken to be possession on behalf of all co-owners a case of ouster being successfully established would entitle theco-owner to succeed.

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A57. We may notice the following statement from Mulla on“Principles of Mohammadan Law” (22[nd] Edition):

“207. Power of mutawalli to sell or mortgage. A mutawalli has nopower, without the permission of the Court, to mortgage, sell orexchange waqf property or any part thereof, unless he is expresslyBempowered by the deed of waqf to do so.”

58. The learned Author thereafter refers to Section 51(1) of theAct under which a sale could no doubt be effected after obtaining priorsanction of the Board. The change brought about by the Amending Actof 2013 by the insertion of sub-section (1A) in Section 51 of the Act byCwhich a sale inter alia has been declared void is also noticed. The embargoagainst sale unless it is expressly authorised by the waqf deed is dealtwith under the caption “Unauthorised alienation and limitation” and itreads as follows:

“the law as regards the period of limitation for a suit to followDwaqf property in the hands of a mutawalli and to set asideunauthorized transfers of such property, and to recover possessionthereof from the transferee, was amended and altered by Act 1of 1929. The amendments consist of an addition of para 2 to s. 10of the original Act (Limitation Act, 1908), and of the insertion ofnew articles, being Arts. 48B, 134A, 134B and 134C.”E59. We have already noticed the purport of Article 134B of theLimitation Act, 1908 and the change brought about in the successorprovision, namely, Article 96 of the Limitation Act, 1963.

60. In Anisur Rahman and others v. Sheikh Abul Hayat24, aFDivision Bench of the High Court had occasion to deal with the veryquestion which we are confronted with. The Court went on to hold asfollows:

“7. In Mukherjea’s well known book on Hindu Law of Religiousand Charitable Trust, 2nd edition, at page 274, the said Calcuttadecision was referred to and it was further pointed out at pageG282 that limitation in case of an unauthorised alienation wouldstart as soon as possession vested with regard to any property. Toquote his own words at page 282:

“The correct principle deducible from these cases is that thepossession of the alienee would become adverse as soon ashe is without any title to the property. If the transfer is void abinitio, the possession of the transferee is adverse from the dateof the transfer. If, on the other hand, it is not void, but voidablemerely at the instance of the succeeding manager, thepossession cannot be adverse until the office of the transferringmanager ceases.”

8. In other words, the applicability of either Article 144 or Article134B of the Limitation Act would depend on whether the transferwas void ab initio or only voidable at the instance of the succeedingmanager.

9. A transfer which is void ab initio is in the eye of law no transferat all and hence will not come within the scope of Article 134B.Moreover, that Article refers to transfer made by a manager ofan endowment. If a person transfers property treating it as hisown private property, it is difficult to hold that merely because hehappens to be the manager of the endowment on the date of thetransfer and the property is the properly of the endowment suchtransfer should come within the scope of that Article. Mr. Hussainfor the appellants could not cite any decision after AIR 1946 Cal473 in support of his extreme contention to the effect that theprinciple laid down in that decision his no application in respect ofvoid transfers made after the coming into force of the amendmentof 1929. On the other hand, a Division Bench of the Orissa HighCourt in Govinda Jiew Thakur v. Surendra Jena, AIR 1961Orissa 102 applied the principle; of that decision and held thattransfers void ab initio are outside the scope of Article 134B; atransferee in such a case is a mere trespasser and his title will beperfected by the twelve years adverse possession. With respect Iam inclined to agree with this view. There is also a Madras decisionin V. Rajaram v. Ramanujam Iyengar, AIR 1963 Mad 213paragraphs 4 and 5 to the same effect.”

61. Therefore, the principle, which emerges, is this. In order thata suit may fall under Article 96, there must be a transfer by a Managerwhich would include a Mutawalli of a waqf. It must be for valuableconsideration. In order that there is a transfer, it must not be still born. Itshould not be a void transaction. This is for the reason that a void AB

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Atransaction would not amount to a transfer. An unauthorized alienationas understood inMulla (supra), which we have referred to, viz., a transfer,which was made by a Mutawalli, for which, there was no authority inthe waqf deed, would constitute a transfer to which Article 134B andArticle 96 would have applied. With the advent of the laws relating toWaqfs which included the 1960 Act in Uttar Pradesh, the MutawalliBwas obliged to obtain the previous sanction of the concerned Board. Incases where a transfer is made under the 1960 Act without previoussanction of the Board, the transfer would be void. This is for the reasonthat the requirement of previous sanction is a statutory commandconceived with a definite and sublime purpose and the transgression ofCwhich can only result in a void transaction. There is no provision whichenables the validating of such a sale. In fact, the stand of respondents 2and 4 is that, the transfers were void. Therefore, the authorities havealso proceeded on the basis that the transaction was void and we cantherefore proceed on the said foundation.

D62. Proceeding on the basis that the sale executed in 1974 was avoid transaction we are inclined to approve of the view taken byChintamani Sahoo (Deceased by LR.)(supra) and Anisur Rahman(supra), which we have referred to and hold that Article 96 of theLimitation Act, 1963 cannot be invoked in the case of a void transaction.The impugned Order, proceeding on the said premise, cannot be said toEbe flawed.

63. We are of the view that there cannot be any embargo againsta beneficiary of a waqf claiming acquisition of title by adverse possession.Section 2(k) of the Waqf Act, 1955, reads as under:

F“2(k) “person interested in a waqf means any person whois entitled to receive any pecuniary or other benefits from thewaqf and includes-

(i) Any person who has a right to offer prayer or to performany religious rite in a mosque, idgah, imambara, dargah,Gkhanqah, peerkhana and karbala, maqbara, graveyard orany other religious institution connected with the waqf or toparticipate in any religious or charitable institution underthe waqf;

(ii) The waqf and any descendant of the waqf and themutawalli;H

64. While he may be a person who can be treated as “interested”in a waqf within the meaning of Section 2(k) both by reason of the factthat he is a recipient of pecuniary or other benefit and also he may be adescendant of the wakif, it is a far cry from describing him as a Trustee.The beneficiary may have benefits coming his way in terms of the waqfdeed. He may be clothed with rights in this regard.

65. Can it be said that a beneficiary of a waqf is a fiduciary orthat there is a fiduciary relationship and, therefore, he cannot acquiretitle to the property of the waqf by adverse possession? The term‘fiduciary’, as such, has not been defined, so is the case with the ‘fiduciaryrelationship’. In fact, Section 88 of the Indian Trusts Act, 1882, interalia, provides that a person standing in a fiduciary character and boundto protect the interest of another, cannot by using such character, obtainan advantage and resist making over the benefit to the person, whoseinterest he was bound to protect. In Central Board of SecondaryEducation and another v. Aditya Bandopadhyay and others25, thoughin the context of Right to Information Act, 2005, the question arosewhether an Examining Body holds the evaluated answer books in afiduciary relationship within the meaning of Section 8(1)(e) of the Rightto Information Act, 2005. In the course of the Judgment, this Court, interalia, held as follows:

“38. The terms “fiduciary” and “fiduciary relationship” referto different capacities and relationship, involving a common dutyor obligation.

38.1. Black’s Law Dictionary (7th Edn., p. 640) defines“fiduciary relationship” thus:

“Fiduciary relationship.—A relationship in which oneperson is under a duty to act for the benefit of the other on matterswithin the scope of the relationship. Fiduciary relationships—suchas trustee-beneficiary, guardian-ward, agent-principal, andattorney-client—require the highest duty of care. Fiduciaryrelationships usually arise in one of four situations: (1) when oneperson places trust in the faithful integrity of another, who as aresult gains superiority or influence over the first, (2) when oneperson assumes control and responsibility over another, (3) whenone person has a duty to act for or give advice to another on AB

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matters falling within the scope of the relationship, or (4) whenthere is a specific relationship that has traditionally been recognisedas involving fiduciary duties, as with a lawyer and a client or astockbroker and a customer.”

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39. The term “fiduciary” refers to a person having a dutyto act for the benefit of another, showing good faith and candour,where such other person reposes trust and special confidence inthe person owing or discharging the duty. The term “fiduciaryrelationship” is used to describe a situation or transaction whereone person (beneficiary) places complete confidence in anotherperson (fiduciary) in regard to his affairs, business or transaction(s).The term also refers to a person who holds a thing in trust foranother (beneficiary). The fiduciary is expected to act inconfidence and for the benefit and advantage of the beneficiary,and use good faith and fairness in dealing with the beneficiary orthe things belonging to the beneficiary. If the beneficiary hasentrusted anything to the fiduciary, to hold the thing in trust or toexecute certain acts in regard to or with reference to the entrustedthing, the fiduciary has to act in confidence and is expected not todisclose the thing or information to any third party.

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40. There are also certain relationships where both theparties have to act in a fiduciary capacity treating the other as thebeneficiary. Examples of these are: a partner vis-à-vis anotherpartner and an employer vis-à-vis employee. An employee whocomes into possession of business or trade secrets or confidentialinformation relating to the employer in the course of hisemployment, is expected to act as a fiduciary and cannot discloseit to others. Similarly, if on the request of the employer or officialsuperior or the head of a department, an employee furnishes hispersonal details and information, to be retained in confidence, theemployer, the official superior or departmental head is expectedto hold such personal information in confidence as a fiduciary, tobe made use of or disclosed only if the employee’s conduct oracts are found to be prejudicial to the employer.”

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66. A fiduciary can, therefore, be taken to be a person who becomescharged with the duty to protect the interest of another. FiduciaryHrelationship is founded upon the reposing of confidence by one in another.

The beneficiary of a waqf is endowed with rights in terms of the waqfdeed. We are unable to cull out any duty, as such, to protect the interestof another. No doubt, it could be said that as the property in a waqf,vests in the Almighty, there must be a concern and, undoubtedly, a moralduty to act in a manner that the object of the wakf is fostered. But abeneficiary is not like a Trustee, who assumes possession in his characteras a Trustee, coming under the restraint of discarding his character asTrustee and donning the robes of an encroacher or a person assertinghostile title. Section 14 of the Indian Trusts Act, reads as follows:

“14. Trustee not set up title adverse to beneficiary-The trusteemust not for himself or another set up or aid any title to the trustproperty adverse to the interest of the beneficiary.”

67. It is not, as if, the beneficiary was in possession of the propertyin any capacity prior to the sale.

68. In fact, in this case, we may notice that in the second sale, theformer Mutawalli, viz., Qasim Ali Khan, entered into the sale deed onthe strength of a compromise and the order of the Deputy Director,Consolidation, under which, he purported to act as one possessed ofone-third right in his own right. We bear in mind that no doubt it wouldhave mattered little to the applicability of Article 96 that the transferorpurported to transfer waqf property professing it to be his property havingregard to what this Court has laid down inSrinivasa (supra). But this isa case where the voidness arises on account of the fact that what isfound to be waqf property has been purported to be alienated contraryto the peremptory statutory mandate. We have also noticed Section 69of the 1960 Act and its impact.

69. The argument that Section 107 of the Act will assist theappellant in tiding over the bar of limitation does not appeal to us. Section107 of the Act, no doubt, proclaims that nothing in the Limitation Act,1963shall apply to any suit for possession of the immovable property comprisedin any waqf or for possession of any interest in such property.

70. The Act came into force on 01.01.1996. The first sale waseffected on 14.10.1960. The second sale was effected on 26.09.1974.As far as the first sale is concerned, we have already found that Article96 cannot be pressed into service as the transfer was not purported tobe made by the Mutawalli. The doors stood open for the application ofArticle 65. As far as the second sale is concerned which was effected A

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Ain the year 1974 in view of our finding that Article 96 was not applicable,the only other competing Article vying for acceptance, appears to beArticle 65. Applying Article 65 and as the adverse possession wouldkick in from the date of the transfer, on the expiry of twelve years, i.e.,in 1986 applying Section 27 of the Limitation Act whatever title remainedwithin the meaning of Section 65 would stand extinguished. The ActBwas brought into force only with effect from 01.01.1996. We cannotunderstand the purport of Section 107 to be that it would revive anextinguished title as nothing stood in the way of running of time from thedate of the second sale under the law as it stood.

71. No doubt, the law of limitation is what prevails as on the dateCof the suit (see C. Beepathumma and others v. VelasariShankaranarayana Kadambolithaya and others26). Taking 1997 asthe date, on which a suit is filed, and applying the Act, which enables theplaintiff to disregard the bar of law of limitation, it cannot mean thatwhat stood extinguished under the earlier law would revive. In this regard,Dwe notice the Judgment of this Court in T. Kaliamurthi (supra):“40. In this background, let us now see whether this sectionhas any retrospective effect. It is well settled that no statute shallbe construed to have a retrospective operation until its languageis such that would require such conclusion. The exception to thisErule is enactments dealing with procedure. This would mean thatthe law of limitation, being a procedural law, is retrospective inoperation in the sense that it will also apply to proceedings pendingat the time of the enactment as also to proceedings commencedthereafter, notwithstanding that the cause of action may havearisen before the new provisions came into force. However, itFmust be noted that there is an important exception to this rulealso. Where the right of suit is barred under the law of limitationin force before the new provision came into operation and a vestedright has accrued to another, the new provision cannot revive thebarred right or take away the accrued vested right.”G72. A contention is taken that the Court is not dealing with a suitand the matter arises from a proceeding under Section 52 of the Act. Itis contended that in regard to Section 52 the bar of limitation for a suit isinapplicable. We have noticed that the debate in the High Court essentially centered around the question whether Article 96 would apply and applyingAthe same, the appellant could get around the impact of Article 65 readwith Section 27 of the Act. We have found that Article 96 has noapplication. Even in regard to a proceeding under the Act be it Section52 if as on the date the action is taken, the title in the property stoodvested with the person in possession by virtue of Section 27 of theBLimitation Act then it may not be permissible to ignore the right whichhad been acquired. The decision inT. Kaliamurthi(supra) would applyin the facts and the action is barred.

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73. The upshot of the above discussion is that the Appeals are tobe found without merit and will stand dismissed. Parties to bear theirrespective costs.

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Nidhi Jain(Assisted by : Tamana, LCRA)

Appeals dismissed.

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