TAMIL NADU WAKF BOARD Vs. HATHIJA AMMAL

JUDGEMENT

(1.) The appellant brought nine suits on the basis that one Kallakattu Bava Sahib Marcayar had dedicated under a registered deed the suit properties for several charities named in the deed; that the founder had constituted himself as the Muthawalli and thereafter appointed his son Dawood, Batcha Mohideen and after him the Manager (heads) in his family to manage the properties and utilise its income only for charitable and religious purpose and not for personal benefit; that the deed also put restraint against alienation or transfer or otherwise of the properties dedicated in favour of Thaikkal by the defendants of the founder; that Batcha Mohideen died in the year 1935 leaving behind two sons and three daughters, who partitioned the trust property among themselves; that Wakf Board, on being constituted in the year 1954, a survey was made and a notification as provided under Section 5(2) of the Wakf Act, 1954 (hereinafter referred to as 'the Act') was published in the gazette on 24-12-1958; that the suits were filed by the appellant for recovery of possession of the suit property and for future mesne profits till delivery of possession with costs.

(2.) On behalf of the respondents it was contended that the Wakf Board is not the legal representative of the founder, that the charity in question is not a public wakf, a very small amount was required to be spent for charities and rest of the income was intended for benefits of the heirs only; that the notification issued under Section 5(2) of the Act is illegal and invalid; that the suit property is not covered by the notification issued under Section 5(2) of the Act; that the suit property had been sold to the purchaser in the revenue auction and, therefore, the character of the suit property had changed; that they had perfected the title by way of adverse possession; and, that the suit is hopelessly barred by time.

(3.) By a common judgment and decree, the trial Court held that the suit property is a public wakf and not a private wakf and the notification dated 24-12-1958 issued under Section 5(2) of the Act did not include the suit property and hence the appellant cannot recover the possession of the suit property. The First Appellate Court affirmed this common judgment and decree. The First Appellate Court held that in the absence of proper notification under Section 5(2) of the Act that the suit properties are Wakf properties, the appellant cannot succeed in the suit for recovery of possession on the ground that the suit properties have been notified as wakf properties under Section 5(2) of the Act and that notification has become final.