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Andhra High Court · body

2007 DIGILAW 793 (AP)

Mohd. Abdul Jabbar v. Mohd. Ghulam Mustafa

2007-08-22

G.YETHIRAJULU

body2007
ORDER:- This revision petition is filed by the plaintiff in O.S. No. 40 of 1998 on the file of the Wakf Tribunal, Hyderabad. 2. The plaintiff filed the suit for declaration that the suit schedule property i.e., a mulgi is a wakf property attached to the Mosque and for injunction restraining the defendants from alienating the suit mulgi. 3. The plaintiff is one of the persons interested in the wakf property as defined under Section 3(k) of the Wakf Act. He filed the present suit by contending that the then Muthawalli sold away the property without obtaining sanction either from the Court or from the Wakf Board, therefore, the sale transaction is not legal and it shall be declared as the property of the wakf even after execution of the sale deed. The second defendant, who is the purchaser of the suit property, contended that in 1344 Fasli, a sanction order was obtained by the then Mutawalli from the ecclestical department of Nizam Government and on the basis of the said sanction order, the suit mulgi was sold on 2.1.1975 by the then Mutawalli and later it was sold to the second defendant and after the dale, a ratification order was obtained on 16.4.1975, therefore, there is no illegality in the sale transaction. Hence, the suit has to be dismissed with costs. 4. It is an undisputed fact that the suit mulgi is a wakf property under Section 36(A) of the Wakf Act, 1954. The Mutawalli can sell the property to the third party with prior permission of the Wakf Board and Section 51 of the new Act is the corresponding provision. 5. The learned Counsel for the Appellant-plaintiff submitted that as per the Mohammedan Law Para 193 of the book of Mulla, no wakf property shall be sold without the prior permission of the Court. As there was no specific provision under the old Act to obtain sanction from the Wakf Board for the sale of the property, the sale is not valid transaction, therefore, it is an illegal one. 6. As there was no specific provision under the old Act to obtain sanction from the Wakf Board for the sale of the property, the sale is not valid transaction, therefore, it is an illegal one. 6. Section 36 (A) of the Wakf Act, 1954, reads as follows: "36-A. Alienation of wakf property without sanction of Board to be void.-(1) Notwithstanding anything contained in the wakf deed, any gift, sale, exchange or hypothecation of any immovable property which is wakf property, shall be void unless such gift, sale, exchange or hypothecation is effected with the prior sanction of the Board. (2) The Board may, after publishing in the Official Gazette, the particulars relating to the transaction referred to in subsection (1) and inviting any objections and suggestions with respect thereto and considering all objections and suggestions, if any, that may be received by it from the concerned Mutawalli or any other person interested in the wakf, accord sanction to such transaction it is of the opinion that such transaction is- (i) necessary or beneficial to the wakf; (ii) consistent with the objects of the wakf; (iii) the consideration thereof is reasonable and adequate: Provided that the sale of any property sanctioned by the Board shall be effected by public auction and shall be subject to confirmation by the Board within such time as may be prescribed; Provided further that the Tribunal may, on the application of the aggrieved Mutawalli or other person, for reasons to be recorded by it in writing, permit such sale to be made otherwise than by public auction, if it is of the opinion that it is necessary so to do in the interest of the wakf. (3) The utilization or investment of the amount realized by the sale, exchange or hypothecation of any property shall be made by the Mutawalli subject to the approval of the Board, and where any amount has been raised by mortgage of any such property, the Mutawalli or other person shall make repayment of the mortgage-debt and obtain a discharge of the mortgage debt from the mortgagee within such reasonable time as the Board may specify. (4) Every approval given by the Board under sub-section (3) shall be communicated to the Mutawalli and shall also be published in the prescribed manner. (4) Every approval given by the Board under sub-section (3) shall be communicated to the Mutawalli and shall also be published in the prescribed manner. (5) The Mutawalli or any other person having an interest in the wakf who is aggrieved by the decision given under sub-section (3), may, within ninety days from the date of communication to him of such decision or the publication of the decision, as the case may be, prefer an appeal to the Tribunal against such decision, and, thereupon, the Tribunal may, after giving the appellant and the Board or the Wakf Commissioner, as the case may be, a reasonable opportunity of being heard, confirm, modify or set aside such decision." 7. The section is very specific that the Mutawalli can sell the property after obtaining sanction from the Wakf Board. The defendant produced Ex. B-2, letter dated 22nd Sherwar 1341 Fasli from the ecc1estical department of Nizam Government, wherein it is specifically mentioned that the Mutawalli is permitted to sell the mulgies attached to the Mosque and to purchase new mulgies at Afzalgunj. 8. The learned Counsel for the respondents submitted that though the respondents could not sell the property immediately after obtaining the sanction order, they obtained the ratification orders subsequent to the sale transaction as the Wakf Act come into force for the first time in 1954. If there is any illegality in the transaction, the, Wakf Board is supposed to point out such illegality questioning the authenticity of the Mutawalli to sell the property. But the Wakf Board ratified the action of the Mutawalli in selling away the property without raising any objection. When there was a prior sanction from the concerned authorities prior to 1954 Act came into force and there was a ratification from the Wakf Board, it cannot be said that it is an illegal transaction and there is no enforceability in the sale transaction. 9. The Tribunal, after taking into consideration all these aspects, came to a conclusion that the legality of the sale transaction cannot be questioned, therefore, the suit was dismissed by refusing to grant the relief to the plaintiff. 10. After going through the entire material, I am convinced that the Tribunal rightly came to a conclusion to dismiss the suit and I do not find any grounds to interfere with the order passed by the Tribunal. 11. 10. After going through the entire material, I am convinced that the Tribunal rightly came to a conclusion to dismiss the suit and I do not find any grounds to interfere with the order passed by the Tribunal. 11. Hence, the civil revision petition is dismissed. No costs. However, if there is any other remedy available to the appellant-plaintiff, he is at liberty to agitate the same.