AZIZ MIRZA Vs. ANDHRA PRADESH

JUDGEMENT

(1.) This is an appeal filed by 7th defendant against the judgment and decree dt.5.2.1983 passed by the Addl. Chief Judge, City Civil Court, Hyderabad in O.S.No.236 of 1982. The trial Court declared that the suit property was Wakf property under Ashoorkhana Nal Saheb Pattargatti. It also declared the sale deeds in favour of defendants 1 and 7 in respect of suit properties null and void. It also passed a decree of eviction. Costs of the suit were also awarded in favour of the plaintiffs. The parties shall be referred to as plaintiffs and defendants.

(2.) The suit was laid by the plaintiffs on the ground that Ashoorkhana Nal Saheb and the houses thereunder were Wakf properties from times immemorial. Ashoorkhana Nal Saheb and its properties were used and recognized as Wakf properties. They were registered as wakf and a Muntakhab No.1191 was issued which was notified in the Gazette dt.17.2.1955. The houses under the Ashoorkhana Nal Saheb which are suit properties have been illegally occupied by the defendants. 2nd plaintiff filed a petition with department to appoint her as Mutawalli of the said institution as she was only the rightful successor to late Mutawalli Sri Mir Gulzar Ali. Consequently she was appointed and recognized as Mutawalli of the said institution. Her name was entered in Muntakhab. Since her appointment the 2nd plaintiff was discharging the duties of Mutawalli of the said Ashoorkhana. The houses bearing No.22-7-148 (Old No. 1-C-7-148), H.No.22-7-151 (Old No.1-C-7-151) and H.No.22-7-157 (Old No. 1-C-7-151) were wakf properties under the said Ashoorkhana and were meant for residence of the Mutawalli. The step mother of 2nd plaintiff Smt. Dargai Begum who was wife of old Mutawalli Gulzar Ali was residing in H.No.22-7-148. After appointment of 2nd plaintiff as Mutawalli, Dargai Begum continued to reside in the house bearing No.22-7-148 with permission of 2nd plaintiff. As Dargai Begum was old, she wanted her relatives to look after her and she sought permission from 2nd plaintiff to allow her to keep her relatives in the adjoining houses. Accordingly 2nd plaintiff granted permission to Dargai Begum to keep her younger sister Lala Begum and other relatives in the houses bearing Nos.22-7-151 and 22-7-157. They took advantage of the possession over the houses and 1st defendant got obtained three sale deeds in his favour from late Dargai Begum within a period of 15 days prior to her death when she was extremely ill and was not in her senses. These sale deeds were got executed by exercising undue influence and playing fraud upon Dargai Begum in collusion with late Lala Begum. Under sale deed dt.19.12.1963 Dargai Begum transferred the house bearing No.22-7-148 in favour of 1st defendant for a consideration of Rs.4,000/-, under sale deed dt.19.12.1963 she transferred the house bearing No.22-7-151 in favour of 1st defendant for a consideration of Rs.1700/- and under third sale deed dt.19.12.1963 late Dargai Begum transferred house bearing No.22-7-147 in favour of 1st defendant for a consideration of Rs.300/-. It was contended by the plaintiffs that it was doubtful whether any consideration was paid at all to late Dargai Begum. These sale deeds were challenged as null and void, as no wakf property could be transferred under law without obtaining prior permission from 1st plaintiff and Dargai Begum or even the Mutawalli i.e., 2nd plaintiff could not sell or transfer the suit properties in any manner whatsoever. After the death of Dargai Begum, 1st defendant illegally took possession of the houses and then let out illegally the house bearing No.22-7-151 to 2nd defendant, a portion of house bearing No.22-7-148 to 3rd defendant and the remaining portion to 4th defendant and H.No.22-7-157 to defendants 5 and 6. Therefore it was contended that the occupation of these houses by defendants 2 to 6 was unauthorized and illegal. The plaintiff asked the defendants 2 to 6 to vacate the houses and deliver possession, but the defendants failed to comply with it, therefore the suit was filed.

(3.) 1st defendant filed his written statement denying that the 2nd plaintiff was Mutavalli of Ashoorkhana. It was admitted that Ashoorkhana was wakf property, but it was contended that the suit houses are not part and parcel of wakf property. He also denied that the suit houses were recognized as wakf property since times immemorial. He also denied that the suit houses were registered as wakf and Muntakhab No.1191 was issued which was notified in the Gazette dt.17.2.1955. He further contended that even if the suit houses had been entered in the so called Muntakhab, even then also the said entries were illegal. It was also denied that Dargai Begum was residing in H.No.22-7-148 as a wife of late Gulzar Ali. It was contended that Smt. Dargai Begum was the absolute owner and possessor of the said houses and she was competent to sell the same and the said houses were sold to him by her through registered sale deeds. It was contended that merely because late Dargai Begum was the wife of late Gulzar Ali, it does not mean that the suit houses were wakf property. No permission was sought by Dargai Begum from 2nd plaintiff to stay in the suit houses for herself and for her relatives. It was also denied that when the sale deeds were executed by Dargai Begum, she was extremely ill. It was also denied that 1st defendant exerted undue influence and played fraud upon Dargai Begum after collusion with late Lala Begum. Dargai Begum herself with her free will and pleasure sold the suit houses to 1st defendant through sale deeds after receiving consideration amount. 1st defendant had purchased the suit houses for a valuable consideration. He also stated that the house bearing No.22-7-148 had been sold by him through a registered sale deed to defendant No.7. It appears that the 7th defendant was subsequently added as defendant in the suit.