ABDUL MAJEED Vs. SYED HUSSAIN WAKF

JUDGEMENT

(1.) THE first defendant is the appellant in this second appeal. THE respondent plaintiff is one Syed Hussain Wakf represented by its Power Agent Abdul Latif. THE respondent filed the suit O.S. No. 6173 of 1976 on the file of the V Assistant Judge, City Civil Court, Madras for recovery of possession of the suit building from the appellant had two other defendants. According to the plaintiff, the first defendant is the tenant under the plaintiff Wakf and the second and third defendants are sub tenants under the first defendant. THE suit was dismissed on the ground that the plaintiff Wakf is a private trust to which G.O. Ms. No. 2000, Home, dated 16th August 1976 is not applicable. If the said G.O. is applicable. THE Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 will not be applicable to the suit building and the present suit for ejectment in a Civil Court is maintainable.

(2.) BUT, on appeal by the plaintiff, the lower appellate court in A.S. No. 153 has decreed the suit on the ground that the plaintiff Wakf is a public trust coming under the said G.O. Aggrieved by the said decree, the first defendant alone has preferred this second appeal impleading the plaintiff alone as respondent.

(3.) THEN, it is only to be seen whether the finding of the lower appellate court that the suit Wakf is a public Wakf is correct. The documents that were relied on by the first appellate court for holding that it is a public Wakf are Exs. A1, A4, A5 and A7. Ex. A7 which was marked at the first appellate stage is only a certificate given by the Secretary of Tamil Nadu Wakf Board that the suit Wakf is a public Wakf. The learned counsel for the appellant contends that this document should not have been relied on at all. Anyway, I do not think it necessary to rely on Ex. A7 at all in the present case. I think Ex. A-4 alone is enough to hold that the suit Wakf is a public Wakf. Ex. A4 is the proforma report prepared by the Wakf Commissioner pursuant to the relevant provision under the Wakf Act and the consequent survey that was conducted in about 1955 after Wakf Act was enacted. Ex. A4 which is the proforma relating to the suit Wakf mentions inter alia the following details in the respective columns: ?4. Name of the Wakf and: (Whether Sunni or Shia) Syed Hussain's Wakf. (Sunni) 6. Nature of the Wakf (Whether pious, Religious or charitable or Wakf by way, Mashruthu-Khidmat or Wakf-alal-aulad). Religious Charitable 7. Object of the Wakf and conditions of grant: For the performance of Fathehah of Meeladi Nabi and Meelassani. 13. Particulars of the Wakf or properties comprised in the Wakf, with title deeds and documents relating thereto, Description, Classification, Extent, Value, of each item. (a) In case of landed property, description, extent, classification whether wet, dry, garden, building or shop etc. and the value of each item. House and ground bearing door No. Mohammed Hussain Street, Royapettah corresponding to R.S. No. 1174 of Triplicane. Extent C-0-0-1677 Valuation Rs. 4,500/- Income - Rs. 300/- p.a. Taxes-Rs. 58 - 13-0 (QR 1-0-0- Taxes.? The property that is referred to in column 13 is the suit building The abovesaid column 4 gives out the name of the suit Wakf. Regarding the nature of the Wakf, column 6 says that it is religious and charitable. Under the Muslim Law, Wakf-alal-aulad is a private Wakf and any Wakf which is not a Wakf-alal-aulad will be a Public Wakf. While describing the nature of the Wakf in column 6 above, though within bracket and underneath the expression nature of the Wakf?, different kinds of Wakfs are mentioned in cluding Wakf-alal-aulad, on the corresponding portion of the column Wakf-alal-aulad is not mentioned. This clearly indicates that the said Wakf is only a public Wakf. Wakf-alal-aulad is no doubt or two kinds. Wakf-alal-aulad simplicitor is where beneficiaries are only the settlor's family and his descendants, In a composite Wakf-alal-aulad apart from the benefit to the settlor and his decendants there would be public beneficiaries also. But, in the present case it is nobody's case that the beneficiaries are either wholly or partly the settlor's family and his descendants. Further, the abovesaid column 7 of the proforma report also says that the object of the Wakf is the performance of Fathehah of Meeladi Nabi and Meelassani. That means that the Wakf has been created for the purpose of Fathehah in memory of the prophet and also for the Saint Sheik Khadir Jeelani. When such is the object of the Wakf, the Wakf cannot be called a private Wakf. The learned counsel for the respondent also drew my attention to the case in Kutub Uddin v. Wakf of Fathima Begam AIR 1940 Allahabad 383 where it has been held that the performance of fate has can be held as religious and the dedication of property for the performance of fate has is valid. Therefore, it is clear that the suit property is a public Wakf. The other document Ex. A5 has no relevance to decide the question since it is only a receipt given by the Wakf Board for the contribution paid to the Wakf Board under the Act. The other document Ex. A1 (dt. 21.9.1960) purports to be a document transferring the mutawaliship from Syed Ghulam Dastagir to Syed Hussain. The said Syed Ghulam Dastagir is mentioned as mutawalli in the proforma report also. In Ex. A1 also, it is mentioned that the property is a Wakf in favour of Holy Prophet Mohammed and Hazarath Sheik Abdul Khader Jeelani, it having been dedicated for the purpose of fathema on the 12th day of Rabiul Avvl and 11th night of Rabuissani. The learned counsel for the appellant, no doubt, sought to lay emphasis on certain expressions used in Ex. A1 as if the property belonged to the transferee absolutely and on certain deposition given by P.W. 1 the above said Abdul Latif regarding the objects of the Wakf. On reading the whole of the document, it is clear to me that the transferor therein admits that the suit property is only a Wakf property: That apart, any expression used in Ex. A1 or the abovesaid deposition of P.W. 1 cannot alter the original character of the property as borne out by Ex. A4;