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2013 DIGILAW 2976 (MAD)

M. K. Sulthan v. Hameed Shafi

2013-08-19

A.SELVAM

body2013
JUDGMENT : 1. The concurrent Judgments and decrees passed in Original Suit No.47 of 2010 by the Principal District Munsif Court, Tirunelveli and in Appeal Suit No.6 of 2012 by the Additional Sub Court, Tirunelveli are being challenged in the present Second Appeal. 2. The respondents 1 to 11 as plaintiffs have instituted Original Suit No.47 of 2010 on the file of the trial Court for the reliefs of recovery of possession and mesne profits, wherein the present appellants and 12th respondent have been shown as defendants. 3. In the plaint it is averred that the suit property is the absolute property of Haji Syed Mohammed Sahib Thaikka (12 the Kanthuri Thaikka) which situates in Melapalayam and the same is a religious public Wakf. The said Wakf has been notified. The first defendant has been inducted as a tenant of the suit property on a monthly rental of Rs.600/-. The first defendant has leased out the suit property to the defendants 2 to 5 and thereby getting more income. The first defendant has not agreed to pay enhanced rent. Since the first defendant has leased out the suit property to the remaining defendants and thereby getting more income, a legal notice has been issued on 16.10.2009 and thereby terminated tenancy right of the defendants. After receipt of the same, a reply notice has been given on 26.10.2009 containing false allegations and subsequently another notice has been issued on 05.11.2009 and a reply notice has been received on 07.11.2009. Even after termination of tenancy right, the defendants have failed to surrender vacant possession of the suit property. Under the said circumstances, the present Suit has been instituted for the reliefs sought for in the plaint. 4. In the written statement filed on the side of the defendants, it is averred that the plaintiffs have no locus standi to institute the present Suit and the District Munsif Court, Tirunelveli is not having jurisdiction to entertain the same. The father of the first defendant has been inducted into possession of the suit property on a monthly rental of Rs.600/-. The first defendant has sub-leased some portions of the suit property to the defendants 2 to 4. The fifth defendant has not been enjoying any portion of the suit property. The first defendant is ready to pay fair rent without any objection. The first defendant has sub-leased some portions of the suit property to the defendants 2 to 4. The fifth defendant has not been enjoying any portion of the suit property. The first defendant is ready to pay fair rent without any objection. The defendants have given befitting reply notices to the notices issued by the plaintiffs. The present Suit is bad for non joinder of necessary party, since the brother of the first defendant by name Jaferullah has not been impleaded. There is no merit in the suit and the same deserves to be dismissed. 5. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the Suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendants 1 to 4 as appellants have preferred Appeal Suit No.6 of 2012 on the file of the first appellate Court. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the Appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the defendants 1 to 4 as appellants. 7. As agreed by the learned counsel appearing on either side, the present Second Appeal is disposed of on merits at the stage of admission. 8. On the side of the appellants/defendants 1 to 4 the following substantial questions of law have been raised for consideration: (a) Whether the suit as framed is maintainable in view of Sec 32(2)(i) of Wakf Act, 1995? (b) Whether the suit is not maintainable in view of Section 87 of the Wakf Act? (c) Whether the notice issued under Section 106 of Transfer of Property Act is a valid one? (d) Whether the suit is maintainable filed by the plaintiff either by individual capacity or as Muthavallis? 9. It is an admitted fact that the suit property is the absolute property of the Wakf mentioned in the plaint. It is also equally an admitted fact that the suit property has been leased out to the first defendant and he sub-leased some portions of the suit property to the defendants 2 to 4. 9. It is an admitted fact that the suit property is the absolute property of the Wakf mentioned in the plaint. It is also equally an admitted fact that the suit property has been leased out to the first defendant and he sub-leased some portions of the suit property to the defendants 2 to 4. The present Suit has been instituted for the reliefs of recovery of possession and also for mesne profits. 10. The Courts below have concurrently rejected the defence put forth on the side of the defendants. 11. The learned counsel appearing for the appellants/defendants 1 to 4 has tried to impinge the concurrent Judgments and decrees passed by the Courts below on the following grounds: The plaintiffs have no locus standi to institute the present suit and further the present suit is not at all maintainable in view of Section 32(2)(i) of the Wakf Act, 1995 as well as under Section 87 of the said Act and further the termination notice issued under Section 106 of the Transfer of Property Act is not valid. Under the said circumstances, the concurrent Judgments and decrees passed by the Courts below are liable to be interfered with. 12. The learned counsel appearing for the respondents 1 to 11/plaintiffs has also equally contended that the Wakf mentioned in the plaint is nothing but a notified Wakf and the plaintiffs as Muthavallis of the said Wakf are having locus standi to institute the present Suit and the Courts below after considering the available evidence on record have rightly rejected the defence put forth on the side of the appellants/defendants 1 to 4 and therefore, the concurrent Judgments and decrees passed by the Courts below are not liable to be interfered with. 13. Before considering the rival submissions made on either side, it would be more useful to look into the petition filed in MP(MD)No.2 of 2013 and the same has been filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908 and along with the same, certain vital documents have been filed for the purpose of meeting out the contentions raised on the side of the appellants/defendants 1 to 4 and therefore, MP(MD)No.2 of 2013 is allowed and the documents filed thereon are marked as Exs.A8 and A9. 14. 14. The first and foremost attack made on the side of the appellants/defendants 1 to 4 is that the plaintiffs as Muthavallis of the Wakf mentioned in the plaint are not having locus standi to institute the present Suit. 15. On the side of the appellants/defendants the following decisions are relied upon: (i) In 2010-3-L.W.914 (The Secretary, Tamilnadu Wakf Board Vs. Kancheepuram Oili Mohamed-Pettai Labbai Jumma Masjid by its Muthavalli, V.K.Abdul Khader Sahib), this Court has held that "pre suit notice under Section 89 of the Act is a condition precedent to the filing of the suit against the appellant/10th defendant Board (even though no relief is claimed against it). As per Section 32(2)(i) of the Act, only the appellant/Wakf Board can file a suit and defend the same etc., on the facts and circumstances of the present case. (ii) In 1999 - 2 -L.W.36 (Mohamed Ali and 8 others Vs. Kader and 3 others), this Court has held that "under Section 87 of the Wakf Act, unregistered Wakf cannot institute a suit." (iii) In 1999 - 3 - L.W.177 (R.shanmugham and another Vs. the Tamilnadu State Wakf Board, Madras rep. By its Secretary) this Court has held that "it is admitted by the learned counsel for the respondent/Tamil Nadu State Wakf Board that the plaintiff Wakf has not been registered in terms of Section 87 of the Act. Under Section 43 of the same Act, it is held that if the Wakf had been registered under the law for the time being in force it shall not be necessary to register the Wakf again under the provisions of the said 1995 Act. Before me, it is admitted as a fact that the plaintiff/Wakf has not been duly registered either under Section 87 of the 1995 Act or under any of the corresponding provisions of the earlier Act. Therefore, the bar under the Section would apply." 16. Before me, it is admitted as a fact that the plaintiff/Wakf has not been duly registered either under Section 87 of the 1995 Act or under any of the corresponding provisions of the earlier Act. Therefore, the bar under the Section would apply." 16. Section 32(2) of the Wakf Act, 1995 reads as follows: "Without prejudice to the generality of the foregoing power, the functions of the Board shall be- (a) to maintain a record containing information relating to the origin, income, object and beneficiaries of every wakf; (b) to ensure that the income and other property of wakfs are applied to the objects and for the purposes for which such wakfs were intended or created; (c) to give directions for the administration of wakfs; (d) to settle schemes of management for a wakf; Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard; (e) to direct- (i) the utilisation of the surplus income of a wakf consistent with the object of a wakf; (ii) in what manner the income of a wakf, the objects of which are not evident from any written instrument, shall be utilised. (iii) in any case where any object of wakf has ceased to exist or has become incapable of achievement, that so much of the income of the wakf as was previously applied to that object shall be applied to any other object, which shall be similar, or nearly similar or to the original object or for the benefit of the poor or for the purpose of promotion of knowledge and learning in the Muslim community: Provided that no direction shall be given under this clause without giving the parties affected an opportunity of being heard. 17. A mere reading of Section 32(2) would clearly go to show as to how the Wakf Board can function in accordance with the Wakf Act, 1995. 18. Section 36 of the said Act deals with "registration of every Wakf, whether created before or after commencement of this Act." 19. Section 87 of the said Act deals with "bar to the enforcement of right on behalf of unregistered Wakf." 20. Section 89 of the said Act deals with "prior notice to the Wakf Board in case of institution of a suit or other proceedings." 21. Section 87 of the said Act deals with "bar to the enforcement of right on behalf of unregistered Wakf." 20. Section 89 of the said Act deals with "prior notice to the Wakf Board in case of institution of a suit or other proceedings." 21. In the plaint it has been clearly stated that the Wakf mentioned in the plaint is nothing but a notified Wakf. Therefore, embargo created in respect of unregistered Wakf under the Wakf Act, 1995 is not at all applicable and further the sections mentioned in the substantial questions of law under the Wakf Act, 1995 are totally inapplicable to the facts and circumstances of the present case. 22. The main argument put forth on the side of the appellants/defendants 1 to 4 is that the plaintiffs as Muthavallis cannot institute the present Suit. 23. In order the dispel the contention put forth on the side of the appellants/defendants 1 to 4, the learned counsel appearing for the respondents 1 to 11/plaintiffs has befittingly drawn the attention of the Court to the decision reported in AIR 1986 Gujarat 1 (Syed Khersha Sajanshah Mutvalli, Bhuj Kutch V. The Bhuj Municipality and another), wherein the decision reported in AIR 1978 Supreme Court 1362 (Bibi Siddique Fatima Vs. Saiyed Mohammad Mahmood Hasan) has been followed. In AIR 1978 Supreme Court 1362 (Bibi Siddique Fatima Vs. Saiyed Mohammad Mahmood Hasan), the Hon'ble Apex Court has observed as follows: "Under the Mahomedan Law, which is a personal law, the Mutawalli has right to file a suit in respect of the ex-wakf property. This right has not been taken away by Statute. In other words, the mere fact that S.36 of the Wakf Act does not speak about the management and administration of the wakf property as one of the duties of Mutawalli, does not imply that the Mutawalli has no right to file a suit in respect of wakf property. Nor do the provisions of S.55 of the Wakf Act disentitle a Mutawalli from instituting a suit in respect of wakf property. The definition of Mutawalli u/s.3(f) of the Act presupposes that the first and foremost duty of the Mutawalli would be to manage or administer the property. The Mutawalli has to perform two types of duties, religious duties and secular duties. The definition of Mutawalli u/s.3(f) of the Act presupposes that the first and foremost duty of the Mutawalli would be to manage or administer the property. The Mutawalli has to perform two types of duties, religious duties and secular duties. The religious duties may be in the nature of offering prayers, dhup etc., while secular duties would include the collection of rent, managing the property, keeping the property in good condition, preparation thereof, administering the property and if somebody encroaches upon the wakf property then to protect those rights. Thus, the fact that S.36 does not speak about the management and administration of the property as one of the duties of Mutawalli is immaterial. One has to take into consideration the very purpose for which the Act is enacted. It is clearly in the preamble that it is an Act to provide for the better administration and supervision of wakfs. Therefore, the Legislature intended that in addition to their duties under the Personal Law there must be further statutory duties and these duties are prescribed under S.36 of the said Act. Therefore, whatever the rights or duties the Mutawalli has under the personal law cannot be said to have been taken away merely because they are not so expressly provided as duties and powers of Mutawalli under the provisions of the Wakf Act." 24. A close reading of the dictum given by the Hon'ble Apex Court, it is made clear that a Muthavalli can very well institute a Suit so as to protect interest of Wakf or its properties. 25. In (2008) 8 MLJ 365 (Bibijan and 49 others Vs. Anwarsha Idgah & Mosque Avuila Durgah, Panruti and 70 others), this Court has dealt with similar question and ultimately found that even worshippers can file a suit to protect wakf property or property of other religious institutions. They are entitled to maintain a suit for preserving trust property or restoring the property to the trust." 26. From the conjoint reading of the decision referred to supra, it is made clear that the plaintiffs are having locus standi to institute the present Suit for the reliefs sought for therein. In the plaint it has been clearly averred to the effect that the suit property has been leased out to the first defendant on a monthly rental of Rs.600/-. In the plaint it has been clearly averred to the effect that the suit property has been leased out to the first defendant on a monthly rental of Rs.600/-. But the first defendant has sub-leased some portion of the suit property in favour of the defendants 2 to 5 and thereby getting more income. The sub-lease put forth in the plaint has not been denied in the written statement filed on the side of the defendants. Therefore, it is quite clear that the first defendant is getting unjust enrichment by utilising the suit property. 27. It has already been pointed out that Sections of law quoted in the substantial questions of law under the Wakf Act, 1995 are not at all applicable to the facts and circumstances of the present case. 28. The further contention put forth on the side of the appellants/defendants is that the termination notice is not at all valid under Section 106 of the Transfer of Property Act, 1882. In fact, two notices have been issued to the defendants and thereby terminated their tenancy rights. It is a settled principle of law that as per amendment made to Section 106 of the Transfer of Property Act, 1882 even if there is a defect in termination notice, the same will not give any benefit to tenants. In fact, the tenancy right of the defendants has been properly terminated. 29. It has already been decided that the Wakf mentioned in the plaint is a notified Wakf. Under the said circumstances, the embargo created in respect of unregistered Wakf under the Wakf Act, 1995 is not at all applicable and further Section 87 as well as Section 89 of the Wakf Act are not applicable. Therefore, viewing from any angle, the entire contentions put forth on the side of the appellants/defendants 1 to 4 as well as substantial questions of law raised on their side are not factually and legally tenable. 30. The Courts below after considering the rival contentions put forth on either side, have rightly rejected the defence raised on the side of the defendants and in view of the discussion made earlier, this Court has not found any acceptable force in the contentions raised on the side of the appellants/defendants 1 to 4 and altogether, the present Second Appeal deserves to be dismissed. 31. 31. In fine, this Second Appeal deserves dismissal and accordingly is dismissed without cost. The concurrent Judgments and decrees passed by the Courts below are confirmed. Connected MP(MD)No.1 of 2013 is also dismissed. The defendants are directed to vacate the suit building within a period of six months.