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1998 DIGILAW 97 (PAT)

Sheokumari Devi v. Jamia Asharfia College

1998-02-05

GURUSHARAN SHARMA

body1998
Judgment Gurusharan Sharma, J. 1. Jamia Asharfia College, New Bhojpur, (now within District Buxar) through its Mutwalli along with Mostt. Hazi Bibi Masud Fatima, wife of late Gulam Ahmadi of Buxar town, filed Title Suit No. 183 of 1977 against Sheokumari Devi, her husband and two sons in the Court of Subordinate Judge, Buxar, for declaration that the registered deed dated 24.5.1975 (Ext. C), alleged to the executed by Bibi Masud Fatima, the plaintiff No. 2 in favour of the defendant, Sheokumari Devi was forged, fabricated, void, inoperative and without consideration and for mesne profits 150.00 per month as rent of the suit house and for delivery of possession thereof after evicting the defendants. 2. The plaintiffs case was the Bibi Masud Fatima had executed a registered wakf deed dated 13.7.1967 (Ext. 4/a) and dedicated the suit house to Jamia Asharfia College, the plaintiff No. 1, wherein Md. Jakarta and others were made Mutwalli. By subsequent deed dated 30.11.1972 (Ext. 4) others Mutwallis except Md. Hafiz Mujibul Haque were removed and only he continued as the sole Mutwalli. 3. On Sidheswar Pandey, who was husband of Sheokumari Devi and was employed as a constable, was a tenant in a portion of the house. He had obtained signature and LTI of Bibi Masud Fatima in connection with issuance of ration card and on the basis thereof created a registered sale deed dated 24.5.1975 (Ext. C) in respect of the suit house, when Bibi Fatima had no right and titled left with her in the suit house, after she had already executed wakf deeds in the year 1967 and 1972. It was alleged that some one impersonated her she never executed any such deed and/or received any consideration amount therefore. 4. As soon as Bibi Fatima came to know about the sale deed in question, she executed a deed of cancellation on 30.7.1975 and also filed criminal cases (i) for offence under Secs. 406 and 420 of the Indian Penal Code and (2) for offence under Secs. 392 and 394 of the Indian Penal Code committed by the defendants. 5. According to defendants, the suit was not maintainable at the instance of the Mutwalli of the wakf and the aforesaid two wakf deeds (Exts 4 & 4/a) were obtained by practicing fraud on Bibi Fatima. 6. During pendency of the suit, the plaintiff No. 2 Mostt. 392 and 394 of the Indian Penal Code committed by the defendants. 5. According to defendants, the suit was not maintainable at the instance of the Mutwalli of the wakf and the aforesaid two wakf deeds (Exts 4 & 4/a) were obtained by practicing fraud on Bibi Fatima. 6. During pendency of the suit, the plaintiff No. 2 Mostt. Bibi Hazi Masud, Fatima died and as such, her name was expunged. 7. The trial Court decreed the suit and declared the sale deed dated 24.5.1975 (Ext. C) to be a forged and fabricated document and without any consideration and the defendant No. 1 was held to have" acquired no title over the suit house on the basis of the said deed. The defendants were directed to vacate the same and the plaintiff was held entitled to mesne profits at the rate of Rs. 150.00 per month as rent from the date of filing of the suit, till vacant possession of the suit house was handed over. 8. The defendants have, therefore, preferred this appeal against the said judgment and decree. 9. The appellants counsel raised the question of maintainability of the suit itself at the instance of the Mutwalli. 10. The wakf Act, 1954 (hereinafter refereed to as the Act) came into force in the State of Bihar with effect from 12.4.1973 and the present suit was filed in the year 1977. The Act provided for better administration and supervision of Wakfs. Chapter III of the Act provided for establishment of Boards and their functions. Sec. 9 provided that with affect from such dates as the State Government may by notification appoint in this behalf, there shall be established a Board of Wakfs under such name as may be specified in the official notification. Such Board shall be body corporate having perpetual succession and a common seal with powers to acquire and hold property and to transfer any such property, subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be sued. Sec. 15 laid down the functions of the Board. Such Board shall be body corporate having perpetual succession and a common seal with powers to acquire and hold property and to transfer any such property, subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be sued. Sec. 15 laid down the functions of the Board. According to it, General superintence of all Wakfs in a state vested in the Board established for the State and it would be the duty of the Board so to exercise its powers under the Act as to insure that the Wakfs under its superintence were property maintained, controlled and administered and the incomes thereof were duly applied to the objects and for the purpose for which such Wakfs were created or intended. 11. Sec. 15(2) provided that without prejudice to the generality of the foregoing powers, the function of the Board shall also be (i)" to institute and defend suits and proceedings in a Court of law relating to Wakf". 12. As defined under Sec. 3 of the Act, a mutwalli is merely a manager of the Wakfs and is directly under the control and superintence of the board and may even be removed from the office in accordance with Sec. 3. He has to carry out the directions of the Board and to perform duties as specified in Section 36. 13. In Maulvi Reza Ansari and Ors.v. Shyam Lal Sah and Ors. -- a Division Bench of this Court after examining the provisions of the Act held that there was nothing in the Act which empowers a Mutwalli to institute and defined suit and proceedings in a Court of law relating to Wakfs on his own. The power is vested in the Board, which is a corporate body which must sue and be sued, in its own name. 14. In the present case, the suit was filed claiming the property in question to be a Wakf property, which was governed by the Act and as such the Mutwalli of the Wakfs was not empowered to institute it in view of the specific provisions of the Act giving this power only to the Board. The suit instituted by the Mutwalli was, therefore, not maintainable. 15. I have, therefore, no option, but to set aside the impugned Judgment and decree. The suit instituted by the Mutwalli was, therefore, not maintainable. 15. I have, therefore, no option, but to set aside the impugned Judgment and decree. However, it is open to the Board, if so advised, to institute a fresh suit, which may be disposed of in accordance with law. 16. In the result, the impugned Judgment and decree is set aside and this appeal is allowed, but without, costs.