KAZI MUNIR UDDIN AHMAD AND ANOTHER Vs. SUNNI CENTRAL BOARD OF WAQFS U.P. LUCKNOW THROUGH ITS SECRETARY AND OTHERS

JUDGEMENT

(1.) The plaintiffs, who are (1) the Sunni Central Board of Waqfs, U. P., Lucknow, (2) Kazi Bashir Uddin Ahmad and (3) Ahmad Ashraf, filed the suit giving rise to this appeal against (1) Kazi Muniruddin Ahmad and (2) Bibi Mahmuda Begum for recovery of possession over property detailed in the plaint and for mesne profits.

(2.) The plaintiff's case was as follows:- Late Professor Moinuddin Ahmad, father of defendant no. 1 and 2 owned considerable property in the district of Meerut. He was employed as a Professor in the Wilson College, Bombay and died on the 8th of Sept., 1932. Prior to his death, on the 17th of May, 1928, Professor Moinuddin Ahmad created a waqf of a charitable and public nature of his property for the purpose, inter alia, of giving education in the art of painting to Muslim students and encouraging higher education among females by awarding scholarships and helping Muslim poor orphans desirous of learning handicraft industries and he constituted himself as the first mutwalli under the deed of waqf. In pursuance of the said deed, the Professor applied to the revenue court for substitution of the name of Almighty God in place of his own and got mutation effected accordingly in the Khewats, having his own name entered therein as the 1st mutawalli under the waqf- deed. After the creation of the said waqf, till his death in 1932, Professor Moinuddin Ahmad remained in possession of the property covered by the waqf-deed as mutawalli and administered it as such. Upon his death, the defendants, who are the son and daughter of the late Professor, Moinuddin Ahmad, applied for the mutation of their names to the revenue court as proprietors and concealed the existence of the waqf-nama and facts relating thereto. 1n this way, their names were mutated in the revenue papers as proprietors by an ex-parte order dated the 28th of Aug., 1933. The said Professor Moinuddin Ahmad was a Sunni by religion and, under the provisions of the U. P. Muslim Waqfs Act, (Act XIII of 1936) after a preliminary survey by the Chief Commissioner of Waqfs appointed under the said Act, the Sunni Central Board of Waqfs notified the said Waqf created by Professor Moinuddin Ahmad as a Sunni Waqf. That Notification was published in the U. P. Government Gazette dated the 26th of Feb., 1944. Under the terms of the said deed of waqf, the Collector of Meerut was requested to function as mutawalli but he refused to so so. In consequence, the mutawalliship fell vacant and the Sunni Central Board of Waqfs, U. P. appointed plaintiffs nos. 2 and 3, namely, Kazi Bashiruddin Ahmad and Ahmad Ashraf as temporary mutawallis. They have joined the suit as such.

(3.) The defendants were called upon to discontinue their unlawful possession of the property covered by the deed of waqf and to hand over the same to plaintiffs 2 and 3 but the former refrained from doing so and they also refused to hand over the mesne profits. The possession of the defendants, therefore, being that of a trespasser, the suit was being filed. The cause of action in the suit was alleged in the plaint to have arisen on the 8th of Sept., 1932 i. e. on the date of the death of Professor Moinuddin Ahmad and thereafter on the refusal of the defendants to hand over possession of the disputed property.