Anjuman Islamia v. Mohammad Khair Husain — 1981 DIGILAW 552 (ALL)

JUDGMENT S.J. Hyder, J. - One Bhikhari was the owner of the house in dispute situate in Mohalla Kunjartola, Gandhinagar, Basti. It is alleged by the plaintiff and has not been disputed by the defendant that Bhikhari gifted the house in favour of his wife Smt. Jamuna. Plaintiff alleged that Smt. Jamuna created a waqf of the house in dispute along with three other houses for charitable objects such as the maintenance of mosque and appointed the plaintiff Anjuman as its Mutwalli. According to the plaintiff, defendant-respondent Khatir Hussain was a tenant of the house on behalf of the plaintiff Anjumn on payment of Rs. 10/- per mensem. Since the defendant-respondent No. 1 had sub-let the house to the second defendant and he was in arrears of rent, a notice was served on him terminating his tenancy and also asking him to pay the arrears of rent which he did not do according to the plaintiff Anjuman, the defendant was liable to be evicted from the house is dispute. The plaintiff also claimed a decree for arrears of rent and damages for use and occupation at the rate of Rs. 10/- per mensem. 2. The suit was contested by the defendant-respondent. He denied that any Waqf had been created by Smt. Jamuna. He claimed that Smt. Jamuna had gifted the said houses of the defendant by means of a gift deed dated Nov. 3, 1946. He conceded that he was a tenant on behalf of Bhikhari and lived in that capacity in the house even after his death. He conceded that he paid the rent to Smt. Jamuna until she executed a gift in favour of the defendant on Nov. 3, 1946. 3. On the pleadings of the parties, the trial court framed appropriate issues. It held in favour of the plaintiff on all material issues and accordingly decreed the plaintiffs claim. However, the trial court held that the rent payable by the defendant was Rs. 2/- per mensem and not Rs. 10/- per mensem as alleged by the plaintiff. The decree for arrears of rent and damages for use and occupation was passed on the basis of that finding. 4. Feeling himself aggrieved by the decree of the trial court, the defendant preferred an appeal. The court of appeal has come to the conclusion that the plaintiff has failed to prove his title to the house in dispute. The decree for arrears of rent and damages for use and occupation was passed on the basis of that finding. 4. Feeling himself aggrieved by the decree of the trial court, the defendant preferred an appeal. The court of appeal has come to the conclusion that the plaintiff has failed to prove his title to the house in dispute. It has further held that no relationship of landlord and tenant subsisted between the parties. It upheld the gift relied upon by the defendant and was of the view that the occupation of the defendant over the house in dispute was in his capacity as owner and not as a tenant. In that view of the matter, the first court of appeal reversed the decree of the trial court and dismissed the suit of the plaintiff in its entirety. The plaintiff has now approached this court by filing second appeal under S. 100 of the Code of Civil Procedure. Khatir Husain defendant has alone been impleaded as a respondent in this second appeal. 5. There is an apparent inconsistency in the findings recorded by the court of first appeal. It has been held by that court that the value of the house in dispute was more than Rs. 100/- at the time of the execution of the document dated Feb. 9, 1947 which has been referred to in the judgment as Waqfnama. The court of appeal was of the view that the said document was required to be registered and could not be read in evidence in view of the mandatory provision of law enacted in section 49 of the Indian Registration Act. The document dated 3-11-1946 which has been upheld as a gift deed is also an unregistered document. It is inscribed on two sheets impressed with two annas stamp each, if the value of the property was more than Rs. 100/- on the date of the execution of the Waqf Deed. it could not he less a few months earlier. The document which has been relied upon by the first court of appeal as conferring title on the plaintiff-appellant (defendant-respondent?) was also hit by S. 49 of the Registration Act as it also required registration. I therefore, set aside the finding of the lower Appellate Court that the defendant-respondent acquired title to the property in suit by virtue of the document dated Nov. 13, 1946. 6. I therefore, set aside the finding of the lower Appellate Court that the defendant-respondent acquired title to the property in suit by virtue of the document dated Nov. 13, 1946. 6. The above finding recorded by me, however, is not determinative of the controversy between the parties which is to the effect as to whether the plaintiff-appellant is the landlord of the accommodation in dispute and the defendant-respondent was liable to pay rent to it. It needs to be emphasised that the suit is not on the basis of title but on the basis of relationship of landlord and tenant allegedly subsisting between the parties according to the plaintiff-appellant. The plaintiff-appellant can therefore, succeed only if it is able to prove its own case. It cannot take advantage of any weakness in the case of the defendant-respondent and said weakness is writ large on the record of the case and I have already referred to the same. 7. To narrow down the controversy between the parties, it may again be emphasised that the defendant-respondent admits that he occupied the house in dispute as a tenant of Bhikari and thereafter remained in occupation as tenant of Smt. Jamuna. The plaintiff-appellant can only succeed if it is able to establish that it has stepped into the shoes of Smt. Jamuna and has become entitled to realise the rent from the defendant-respondent. If it does not succeed in proving this fact, the decree of the court of appeal has to be maintained. 8. The law admits no doubt. Waqf has been held to be a transfer of property. A document which purports to create a Waqf must necessarily be registered. If it is not so registered, it would not be admissible in evidence. At the same time, it has been held in successive decisions of the Privy Council that property does not vest in Mutwalli and he is only a Manager. This proposition has also been reiterated by the Supreme Court. ( See Vidya Varuthi v. Balusami (1921) 48 Ind App 302, Abdur Rahim v. Narayan Das (1923) 50 Ind App 84 : ( AIR 1923 PC 44 (2)), Saadat Kamel Hanun v. Attorney General, Palestine AIR 1939 P C 185 and Zainyar Jung Nawab v. Director of Endowments, (AIR 1963 S C 985). ( See Vidya Varuthi v. Balusami (1921) 48 Ind App 302, Abdur Rahim v. Narayan Das (1923) 50 Ind App 84 : ( AIR 1923 PC 44 (2)), Saadat Kamel Hanun v. Attorney General, Palestine AIR 1939 P C 185 and Zainyar Jung Nawab v. Director of Endowments, (AIR 1963 S C 985). It is precisely for this reason that a trustee nama or a document appointing Mutwallis is not required to be registered. This question arose for the decision of the Privy Council in the case of Muhammad Rustam Ali Khan v. Mushtaq Hussain, ILR (1920) 42 All 609 and Lord Buckmaster Speaking for Privy Council observed :- "A receiver and manager by virtue of his appointment has no estate in the property he is called upon to control; he possesses powers over it but not an interest in it, and the appointment of others in his place would by itself effect no transfer of ownership. The same thing is, in their Lordships opinion, true of the trustees under this Deed. They are, as the deed itself states, superintendents of the property......... and it is, therefore, in their Lordships' opinion outside the provisions of the Statute and registration was unnecessary." 9. An other proposition which also admits of no doubt is that a waqf may he orally created. If it is so created, the Waqif would be valid. The distinction between and instrument creating a Waqf and a document recording a transaction in the nature of wag which had taken place earlier by words o mouth: is some times difficult to make out, but it is nevertheless a real distinction. It is it in this background that I shall proceeded examine the position arising in this case. 10. It may be stated that after the death of Bhikari, one Sardari filed a suit for partition of all the four houses which had been left behind by the deceased. Originally the defendant in the suit was that widow of the deceased Smt. Jamuna. She contested the suit on the ground that the house in dispute had been gifted to her by her husband Bhikari long before his death, and that he had also transferred the remaining three houses in her favour by means of a gift deed. She denied that Sardari had any right to claim partition and separate possession of the share claimed by him. She denied that Sardari had any right to claim partition and separate possession of the share claimed by him. During the pendency of the suit, Smt. Jamuna died and thereafter the present appellant, namely, the Anjuman, and two other persons were substituted as legal representatives of the deceased Smt. Jamuna. Eventually a compromise was arrived at between the plaintiff of that suit and the Anjuman. It was agreed by means of that compromise that the Anjuman shall he the exclusive owner, by virtue of the Waqf of the house in dispute and it shall have only a share in the remaining three houses. It is pertinent to state that in that case, the stand taken by the Anjuman was that Waqf had been created by Smt. Jamuna orally and that it was subsequently recorded in the shape of a memorandum. The defendant-respondent in the present second appeal was not a party to that suit or the compromise. 11. The first court of appeal has rightly held that the compromise decree in the aforesaid suit would not operate as res judicata against the defendant-respondent. It has. however, gone astray in holding that the documents of the said suit were wholly irrelevant and could not be taken into account. The said documents were relevant evidence under S. 13 of the Indian Evidence Act. It was for the court of appeal to decide what value could be attached to the said documents. 12. It is not in dispute that the Municipal number of the house in dispute is 130. Plaintiff-appellant has filed several extracts of the Municipal Assessment register in which house No. 130 had been shown to be in the possession of the Anjuman. The name of the defendant-respondent does not appear in any one of these documents. 13. Now, the plaint of the suit giving rise to this second appeal is vague and does not indicate whether the document dated 9th Feb. 1947 was a Waqfnama, a trustee-nama or a memo of oral Waqf which had taken place previously. No doubt, M.A. Khair (PW1) has, in his deposition, referred to the said document as a Waqfnama. However, PW 1 was not present at the time of the execution of the said document and he had no personal knowledge about the same. 1947 was a Waqfnama, a trustee-nama or a memo of oral Waqf which had taken place previously. No doubt, M.A. Khair (PW1) has, in his deposition, referred to the said document as a Waqfnama. However, PW 1 was not present at the time of the execution of the said document and he had no personal knowledge about the same. The question is whether the me given to the document by M.A. Khair is sufficient to come to the conclusion that it was a Wagfnama. In my opinion the answer to this question must be in the negative. 14. In the case of Smt. Shanta Bai v. State of Bombay, AIR 1958 S C 532, their Lordships were considering a document which itself recited that it was a lease deed. Vivian Bose. J. speaking for the court observed :- "As I have said, the document called itself a "lease deed", but that is not conclusive because the true nature of a document cannot he disguised by lebelling it something else." After making these observations, Vivian Bose, J. examined the document clause by clause and ultimately held that it was not a deed of lease and it amounted to a licence coupled with a grant. 15. In Thayyil Mammo v. Kattiath Ramunni AIR 1966 S C 337, the Supreme Court ignored the description of the document recited in it and construed that it was a document of a different nature than it purported to be. 16. M.A. Khair was admittedly a layman. He was not acquainted with the niceties of law. No advantage could be given to the defendant-respondent merely because M. A. Khair in his testimony described the document dated Feb. 9, 1947 as a Waqfnama. i See Triveni Bai v. Smt. Lila Bai, AIR 1959 SC 620 ). 17. I have gone through the document dated Feb. 9, 1947 and, in my opinion, the document can be construed to be either as a memo of Waqf which had been orally created or a document appointing Mutwallis. Smt. Jamuna has specifically stated in the said document that she had created a Waqf of her properties. "Waqf billah ker diya." The document does not say that the executant was creating a Waqf in present i through the instrumentality of the document itself. I am, therefore, of the opinion, that the document dated Feb. Smt. Jamuna has specifically stated in the said document that she had created a Waqf of her properties. "Waqf billah ker diya." The document does not say that the executant was creating a Waqf in present i through the instrumentality of the document itself. I am, therefore, of the opinion, that the document dated Feb. 9, 1947 did not require registration and the view taken by the court of appeal on this point is incorrect and must be set aside. 18. Learned counsel appearing for the defendant-respondent urged before me that Mutwallis of the Waqf had no right to enter into a compromise with Sardari in Original Suit No. 193 of 1946 and to relinquish any share in three of the houses in favour of the plaintiff of that suit. The dispute in this second appeal is relating to a different house which according to the said compromise was recognised as Waqf property and was to continue in possession of the plaintiff. The argument advanced on behalf of the defendant-respondent is, therefore, wholly without any merit in so far as the house in dispute is concerned. 19. It was further urged on behalf of the defendant-respondent that the plaintiff can still institute a fresh suit on the basis of title because the suit giving rise to this second appeal was only on the basis of tenancy. This argument is also without substance and cannot be accepted. Courts of law frown on multiplicity of litigation. A plaintiff can be driven to have recourse to the expedient of a second suit only where absolutely necessary. We, in this country, have chosen the Anglo-Sexon system of jurisprudence. It is not for this court to pronounce on the wisdom of the course adopted in this regard. Suffice it to say that litigation under the present laws of procedure involves inordinate delay. It is only an unscrupulous litigant who can take advantage of the delays involved in the procedure. The court of law should, however, eschew, any possibility of delay occurring in the disposal of a controversy between two citizens of the country. 20. Finally it may be stated that the court of appeal has held that the Anjuman was not a juristic person and as such it had no right to sue. The court of law should, however, eschew, any possibility of delay occurring in the disposal of a controversy between two citizens of the country. 20. Finally it may be stated that the court of appeal has held that the Anjuman was not a juristic person and as such it had no right to sue. Assuming that the Anjuman is not a juristic person and the decision of the court of appeal on this question is correct, the point which has to be taken into account is that the suit has been, filed through the instrumentality of the Mutwalli-cum-Secretary. The defect in the frame of the suit, as pointed out by the court of appeal is, at best, a case of mis-description and was wholly insufficient to be made a ground for throwing out the plaintiffs claim. 21. From the foregoing discussion, it is evident that the defendant-respondent came in possession of the house in dispute as a tenant of Bhikari. The gift deed relied upon by him was wholly fictitious and a fabricated document. It was also unregistered. The surrounding circumstances go to show that Smt. Jamuna created a Waqf of the house in dispute and appointed the Anjuman Islamia, Gandhi Nagar, Basti as the Mutwalli of the property. The trial Court was, therefore, right in accepting the plaintiff's case with the modification with regard to the amount of rent claimed by the plaintiff-appellant. 22. The result is that this second appeal succeeds and is hereby allowed. The decree of the first court of appeal is set aside and that of the trial court is restored. Plaintiff-appellant shall be entitled to its costs throughout.