KANI AMMAL Vs. TAMIL NADU WAKF BOARD

JUDGEMENT

(1.) These two Letters Patent Appeals cane be dealt with under a common judgment. The facts leading to the Letters Patent Appeals may be traced briefly as follows : Three items of properties of which two form the subject-matter of these two appeals belonged originally to one Hamsa Mohideen Maraikayar. He executed a deed of wakf under the original of Ex. A-1 on 7th January, 1944, covering the three items of properties. The deed styles itself as wakf and under the said deed certain charities are directed to be performed, the details of which we would mention from the properties forming the subject-matter of the wakf deed. It is stated expressly in the deed that on and from the date of the execution of the document, the executant would be the muthavalli and he shall have no power of alienation and he will carry on the charities during his lifetime. It was further stated that after his lifetime, his son Naina Mohamad Bhuhari and his heirs will take the properties according to the law of primogeniture and perform the charities as muthavallis. Those muthavallis as well have no power of alienation or power of creating any encumbrance. After the death of Hamsa Mohideen Maracayar, his eldest son, the first defendant, became the muthavalli of the trust. He filed O. S. No.44 of 1946 on the file of the Sub-Court. Tuticorin, in respect of item 1 of the suit properties on the basis that it belonged to the trust, while the other side contended that the property had already been sold in execution of the decree in O. S. No. 6 of 1930 on the file of the Sub-Court, Tuticorin. This defence prevailed with the learned Subordinate Judge who dismissed the suit. Aggrieved against that dismissal, the first defendant preferred A. S. No. 391 of 1947 on the file of the District Court, Tirunelveli. However, during the pendency of the appeal, the first defendant had to go to Ceylon and therefore he executed Ex. B-8 power of attorney on 10-1-1948 in favour of the second defendant authorising him inter alia to deal with the properties covered under Ex. A-1, the wakf deed, for the purpose of the conduct of the litigation and other incidental purposes. The second defendant acting on Ex. B-8 created an OTHI in respect of item 2 of the suit properties under Ex. B-7 dated 17th February, 1958 in favour of one Ramaswami Nadar. This OTHI was assigned in favour of one Arumugha under Ex. A-7 dated 1-7-1963. In order to discharge the OTHI, the second defendant executed Ex. B-6 sale deed dated 5-7-1963 for a sum of Rs. 5,000 in favour of Arumugha himself. Out of the sale consideration of Rs. 5,000, Rs. 3,000 was adjusted towards the amount due under the OTHI and the balance alone was received by the second defendant. As regards the third item of the suit properties, the second defendant sold the same under Ex. A-2 dt. 21-8-1950 to none else than his wife, the 8th defendant. She, in her turn, mortgaged the same under the original of Exs. A-5 and A-6 dated 3-1-1957 and 30-11-1959 respectively in favour of defendants 9 and 10. Contending that the alienation of these two items of properties under Ex. D-6 and Ex. A-2 dated 5-7-1963 and 21-3-1950 respectively by the second defendant in favour of the persons above referred to were not valid and were not binding on the wakf, the State Wakf Board instituted O. S. No. 22 of 1967 on the file of the Sub-Court. Tuticorin, for recovery of possession.

(2.) In defence the principal point urged was that there was no absolute dedication under Ex. A-1 and the properties were merely charged for the performance of certain charities. If that be the position, the fact that alienations have been made would not matter, because all that could be availed of by the Wakf Board will be the requirement of the performance of the charities. Therefore that will not enable them to contend that the alienations were bad.

(3.) the learned Principal Subordinate Judge after framing 14 issues came to the conclusion that Ex. A-1 created a wakf and the alienations under Ex. B-6 and Ex. A-2 dated 5-7-1963 and 21-3-1950 respectively were bad and would not be binding upon the Wakf Board, the plaintiff. In the result, he decreed the suit leaving the question of mesne profits to be decided in appropriate proceedings. Against this judgment and decree, two appeals were preferred to this Court in A. S. Nos. 103 and 108 of 1972. A. S. No. 103 of 1972 was by defendants 3 to 6 whose predecessor-in-title (Arumugha) purchased item 2. while A. S. No. 108 of 1972 was preferred by defendants 2 and 8 who were respectively the power of attorney holder and the alliance of item 3. Both the appeals came up for final disposal before Ismail, J. (as he then was). The only point that was argued before the learned Judge was as to the nature of the document Ex. A-1. The learned Judge after going through the various clauses mentioned under Ex. A-1 was of the view that it did not create a charge; on the contrary, there was every indication for holding that it was a wakf deed. He gave the following reasons in support of his conclusion:-