COMMISSIONER OF WAKFS WEST BENGAL Vs. SAKINA KHATUN

JUDGEMENT

(1.) This appeal is at the instance of the Commissioner of Wakfs, West Bengal (defendant No.7a) arising out of a suit for declaration that the property in question, being No.4. Suharwardy Avenue, is the secular property and not a wakf property and the deed of wakf dated 1st October, 1928 is not a valid and operative document. The subject-matter of the present appeal is 3 cottahs 7 chattaks 9 Sq. ft. of land with a four-storeyed building thereon, being premises No.4, Suharwardy Avenue, P.S. Beniapukur, District 24-Parganas. On 1st October, 1928 the plaintiff executed a Bengali Deed purporting to be a wakf deed by which the purported to dedicate a sum of Rs.5000/- for creating a wakf estate. The Deed, inter alia, provides therein that out of the said sum, he would deposit Rs.2345/- with the Chairman, Improvement Trust, for purchase of some land from the said Trust and that he had a sum of Rs.2097-4 annas I his current account in the Luxmi Industrial Bank Limited and Rs.55-12-0 in cash in his hands, which form part of the said Rs.5000/-, The said Rs.5000/- would be considered as capital of the wakf estate and would be utilized for the purpose of acquisition of some land and in constructing a building there or would be invested in some lucrative business. It is further stated that out of the income of the property thus acquired or the business thus carried on, he would get 10%, 20% would be utilized for improving the property or the business, 7.5% would be utilized towards the education of the boys of his relatives or of his community, 30% would be utilized for the education of his children or their descendants advancing the sum by way of loan, and 2.5% would be spent for some acts conductive to the welfare of society and the balance 30% would be divided amongst his heirs in accordance with the Muslim Rules of Succession. It is further provided that the plaintiff would be the first Mutwalli of the alleged wakf, then his wife and thereafter the eldest amongst his sons, and thereafter the eldest amongst his descendants. It is further provided that the future Mutwalli would be able to incur debts to the extent of Rs.25,000/- at an interest of not more than 12% p.a. with sanction of 5 of the members of the committee and in case of consent of al the members of the committee a debt of Rs.50,000/- at an interest not exceeding 12% p.a. the plaintiff's case is that the alleged wakf did not make any ultimate provision in case of extinction of the descendants of the plaintiff, for any charitable or religious purpose as ordained in the Hanafi School of Muslim Law, by which the plaintiff is governed nor was there any dedication of the property described in the Schedule A of the plaint as is compulsory under the Muslim Law, nor did it in law create any wakf-al-aulad for the benefit of the descendants of the plaintiff the alleged wakf, that the alleged object of the wakf was purely illusory. On 16th May, 1929 the plaintiff purchased the land for a sum of Rs.4690/- but it is alleged that he paid the same from his own pocket but not withdrawing from any earmarked current account of his in the Luxmi Industrial Bank and the cost of the Stamp as well as the registration of the document was made by the plaintiff with his own fund. The plaintiff thereafter created a four-storyed building on the said land thus purchased at a huge cost of about Rs.50,000/-. The sum thus spent being his own funds and not from any fund of the alleged wakf estate and since the construction of the building, the plaintiff is residing in a portion thereof and is in possession of the rest by letting out to monthly tenants-at-will. The plaintiff, in spite of the alleged deed of wakf, is all along residing in the same in his personal capacity and is realizing the rent of the Bharatiyas also, and is utilizing the same for his personal expenses; and that not a single pice of the income was ever spent for any religious or charitable purpose. It may be further mentioned that in the alleged deed of wakf there appears a provision for the appointment of a committee consisting of 11 members; the plaintiff begs to state that the consent of those persons named in the deed as members was not taken nor their approval ever obtained before inserting their names in the deed and as such the wakf deed has not been acted upon. It is alleged that the plaintiff being desirous of raising some loan on account of his personal need wanted to mortgage the property in suit but that intending money-lenders are not agreeable to advance loans on the property on account of the so-called deed of wakf and its so-called enrolment. In December 1959, the plaintiff wanted to mortgage the property in suit but failed to have the same for the reasons stated above and hence the suit. The suit was filed originally against the members of the committee of the wakf and others. The Commissioner of wakfs was not made a party but the Commissioner of wakfs was added as a party on his own application under Section 71 f the Bengal Wakf Act and he alone contested the suit. In the written statement, it is stated that the deed of wakf is a valid and legal deed and it is binding on the plaintiff. It is not true that the alleged wakf deed did not make any ultimate reversion in case of extinction of the descendants of the plaintiff for any religious and charitable purpose. The said wakf property was enrolled and registered in the office of the Commissioner of wakfs by the plaintiff himself under Section 71 of the Bengal Wakfs Act and that the plaintiff filed an application before the Commissioner of wakfs on or about 10th June, 1935 under section 44 of the Bengal Wakfs Act, 1934 for the enrolment of the said wakf. It appears that after receiving the application the Commissioner of wakfs after observing all the formalities enrolled the said wakf estate as E.C. No. 974 in the year 1935 and since that date the plaintiff is treating and using the wakf estate and thereafter the ?A? schedule property as a wakf property and as such the plaintiff is at present estopped from denying the wakf character of the ?A? schedule property. It is not true that the plaintiff is all along residing in the suit property in his personal capacity and that he is realizing the rents of the suit property as his personal property. It appears that the plaintiff was recorded as Mutwalli in the Calcutta Municipal Register. The plaintiff is realizing the rents from the tenants of the wakf property in his capacity as a Mutwalli and he is also using the said income in his capacity as a Mutwalli. In the circumstances the Commissioner of wakfs prayed for that the suit to be dismissed. At the hearing of the suit one plaintiff deposed to prove the plaintiff's case and on behalf of the Commissioner of wakfs a clerk deposed. The learned Subordinate Judge decreed the suit and hence the present appeal at the instance of the Commissioner of wakfs.

(2.) Mr. B. C. Mitter on behalf of the Commissioner Wakfs contended that the property is a wakf property as is found from the deed itself. The plaintiff in the Corporation Assessment Register has mutated his name as Mutwalli. It also appears from the deed that the plaintiff has realized the rents from the tenant in respect of the premises as Mutwalli.

(3.) Dr. S. Das on behalf of the respondents, who is alleged to have got the property as such from the descendants of the plaintiff, the plaintiff having died in the meantime and was added, supported the judgment of the learned Subordinate Judge on the ground that the wakf is not a wakf because there was no ultimate benefit to the poor. In paragraph 2 of the wakf deed it appears that everything is being given to the Mutwalli and his family and nothing was left for the poor and there was no ultimate benefit to the poor. In that view of the matter the deed of wakf on the fact of it cannot be said to be a valid wakfnama. The plaintiff himself was examined. It is stated that the plaintiff was a Deputy Executive Officer of the Calcutta Corporation and he executed the deed of wakf of the property for his family for ever. It is alleged that he purchased the property with his own money and did not withdraw any money from the Luxmi Industrial Bank for this purpose. It is also stated that he spent Rs.45,000/- to construct the 4 storied building on the suit land out of his own money and he had no intention of dedicating the suit land or the suit house to God. In his cross-examination it is stated by him that the enrolled the suit property as wakf property under the advice of his friend Khan Bahadur Abdul Momin, 1st Wakf Commissioner of Bengal. He further stated that he ever spent any money for wakf purchase and the statement in the petition of enrolment to the contrary is not correct and in his cross-examination it is stated that the enrolment petition (Ext. A) was signed by him and the same is correct except the spending of Rs.120/- per year for charity. It is also stated that he paid contribution to the Commissioner of Wakfs and the Commissioner of Wakfs issued letters to him for this contribution. From 1928 to 1959 he did not inform the Commissioner of Wakfs that the wakf deed (Ext. 1) was not correct because during this period he had no necessity of borrowing money. The plaintiff himself was a member of the wakf Board and he did not place before the Board that his wakf deed was not valid because that question did not arise. He resigned his membership of the Wakf Board after he filed the suit. It is admitted that he got the tax bills of the disputed house. In these papers the suit property has been described as wakf property and in the Corporation Register his name was recorded as Mutwalli of the wakf estate. It is also admitted that he realized the rent from the tenants and in those papers the suit property was described as wakf property. On behalf of the defendant No.7a one clerk was examined and it is stated that the disputed property is a wakf property and that the plaintiff is paying contribution.