| Headnote |
Waqf Act, 1995: Waqf properties, of parties who are Shia Muslims – Beneficiaries and their rights – Beneficiaries perfecting title by adverse possession – Permissibility of – Held: A beneficiary of a waqf, being neither a trustee nor a co-owner of waqf property, can acquire title through adverse possession even if it is the property of the waqf – There cannot be any embargo against a beneficiary of a waqf claiming acquisition of title by adverse possession – Beneficiary of 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 vests in the almighty – For the purposes of s. 10 of the Limitation Act, he is treated as a trustee – Beneficiary would be entitled to receive benefits in terms of the waqf deed – In the case of adverse possession, since a requirement is that the possession must be hostile to the real owner and since the real owner is the almighty, the requirement would be that such a person must have the necessary animus to hold contrary to the title of God – In the case of a co-owner while mere assertion of title in himself may hardly suffice as the possession of a co- owner is taken to be possession on behalf of all co-owners a case of ouster being successfully established would entitle the co-owner to succeed – Beneficiary of a waqf is endowed with rights in terms of the waqf deed – No duty is culled out, as such, to protect the interest of another. ss. 52(2) and 107 – Recovery of wakf property transferred in contravention of s. 51 – Waqf created by one shia muslim, by a deed in the year 1934 – Original Waqif had three sons – Eldest son-QA became mutawalli on death of his father – However, his younger brothers got their names mutated as bhumidars in revenue records for the said property – Suit filed by the eldest son seeking declaration that it was a waqf property and sought relief of expunging the names of his two brothers – During the pendency of suit, one of the brother of QA, sold his one- third share to one of his nephew, referred as first sale – Though said suit decreed in favour of the plaintiff, it abated in view of the consolidation proceedings – First sale was held to be infirm – Thereafter, in 1974, compromise entered between the three brothers and they purported to disown the waqf – Based on the compromise, second sale made by QA in favour of his other nephew – Challenged to, by QA’s son in a writ petition – In 1988, QA resigned as mutawali – Case of the appellant-son of the transferor that QA’s son became the mutawali – Writ petition withdrawn – Complaint filed before the U.P. Shia Waqf Board by QA’s other son challenging the transfer of waqf property by his father and uncle, as also the compromise – Controller of waqf Board by invoking s. 52(1) directed the Collector to recover and deliver possession of the disputed land from the unauthorized occupants, nephew of QA-first respondents – Collector directed the respondents to deliver possession of the property to the Board within 30 days – First respondents challenged the same and the appeals were allowed by the ADJ – However, the High Court set aside the writ petition holding that the ADJ did not possess jurisdiction – In appeal, the waqf tribunal held that the respondents had acquired title by adverse possession and set aside the order of the Collector – Said order upheld by the High Court – However, the revision petitions dismissed – On appeal, held: Beneficiary of a waqf, being neither a trustee nor a co-owner of waqf property, acquired title through adverse possession even if it was the property of the waqf – High Court rightly held that the father created a valid and effective waqf as required of a Shia Muslim and after his death, his eldest son took over as Mutawali – ss. 49A and 49B came to be inserted by Act 28 of 1971 and the second sale took place in 1974, which is after the insertion of ss. 49A and 49B in the 1960 Act, thus, the power, vested with 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 his nephew, being in the teeth of the prohibition against a sale without the previous sanction of the Board, was illegal – In order that a suit may fall u/Art. 96, there must be a transfer by a Manager which would include a Mutawalli of a waqf – Art. 96 would not apply as it is a case of a void sale and not voidable sale – Uttar Pradesh Muslim Waqf Act, 1960 – s. 49 A, B. s. 107 – Recovery of Wakf properties – Applicability of the Art.96 and 65, as regards the first sale effected in the year 1960 and second sale in the year 1974, when the Waqf Act came into force on 01.01.1996 – Stated – Limitation Act, 1963 – Arts. 96 and 65. |
