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2014 DIGILAW 2120 (RAJ)

Syed Mohammad Aafaq v. Ghosia Bibi

2014-12-15

NISHA GUPTA

body2014
JUDGMENT 1. - This Second Appeal under Section 100 C.P.C. has been filed against the Judgment and Decree dated 27.8.1973 passed by the Munsif Magistrate, I Class Ajmer, District-Ajmet in Civil Suit No. 149/67, 141/71 by which suit of the plaintiff appellants has been dismissed and against the Judgment and Decree dated 18.10.2002 in Civil Appeal No. 51/2002 passed by Additional District Judge No. 3, Ajmer in Civil Appeal No. 51/2002 whereby the judgment and decree of the Trial Court has been affirmed. 2. The short facts of the case giving rise to filing of this Appeal are that initially a Suit No. 271/63 has been filed by Sayed Hussain Ali against Syed Mohd. Saddiq who is defendant respondent in the present Appeal and ex parte decree has been passed in favour of Sayed Hussain Ali. Thereafter, an application under Order 9, Rule 13 C.P.C. has been filed to set aside the judgment and decree on behalf of Mohd. Saddiq which was rejected, appeal has been preferred which has also been filed on behalf of the appellants (plaintiff-appellant No. 5 to 7 are sons of Syed Mohd. Saddiq and plaintiff appellants Nos. 1 to 4 are decedents of lmtiaz Mi and declaration has been sought of rights and injunction that they and defendant No. 2 are decedents of Hazi lmtiaz Ali and decree is not binding on them with the contention that the appellant and defendant No. 2 are heirs of common ancestor of lmtiaz Ali who died living behind certain immovable properties and Dargah rights of Haquq Baridari and Kalid Bardari in the Astana of Hazrat Khwaja Sahib and keys of Gumbad Mubarik Dargah Sharif. After the death of lmtiaz Ali, the defendant No. 2 having only surviving son had executed a registered Wakf Deed on 30.7.1934 wherein he gave the property including the Dargah rights of attendance and recovery of offerings to the Almighty and declared that three sons of his deceased Brother would be beneficiary and he appointed himself as Mutwali. Lateron, another Wakf deed dated 2.5.1940 has been executed and rights of beneficiary has been devolved on appellants. Lateron, another Wakf deed dated 2.5.1940 has been executed and rights of beneficiary has been devolved on appellants. Both the Wakf deeds are registered and plaintiffs sought to enforce the above Wakf deeds in their favour and also the rights of Dargah.The defendant No. 2 has admitted the contents of the plaint and supported the version of the plaintiffs whereas defendant No. 1 who is the original decree holder was that they are the beneficiaries. The Wakf deed has been executed prior to the passing of the decree, hence the decree is not binding on them as they have beneficiaries in the Wakf deed. After the execution of the Wakf deed, Mohd. Saddiq was not the owner of the property he was only holding it as a Mutwali and once the property has been wakfed it cannot be revoked. After hearing all the parties, both the Courts below had dismissed the contention of the appellants hence this Second Appeal. 3. The Contention of the appellants is that both the Wakf deeds are registered hence there is presumption of genuineness in their favour and once the property has been given in Wakf, the Wakf cannot be revoked and rights of the appellants are independent of Hazi Mohd. Saddiq as they are the beneficiary in the Wakf and Hazi Mohd. Saddiq was holding the property only as a Mutwali. The Court below has erred obtained by fraud or mis-representation. the documents were 30 years old, hence there was no need to prove them, the Appeal the admitted on the question that the property once given in Wakf cannot be revoked and the ex parte decree is not binding on them as they are the beneficiaries in the Wakf.Per Contra, the contention of the respondents was that it has not been proved before the Court below that property belongs to Imtiaz Ali. As regards the immovable property no document has been produced to show the title of Imtiaz Ali and when Imtiaz Ali was not the owner of the property, the property could not devolve on Hazi Mohd. Saddiq and furthermore for the rights of Dargah of Haquq Baridari and Kalid Bardari only the registers Ex. 18 and 17 have been submitted which have rightly not been relied upon by the Courts below and both the Courts below are concurrent in finding that property does not belong to Hazi Mohd. Saddiq and furthermore for the rights of Dargah of Haquq Baridari and Kalid Bardari only the registers Ex. 18 and 17 have been submitted which have rightly not been relied upon by the Courts below and both the Courts below are concurrent in finding that property does not belong to Hazi Mohd. Saddiq and when Hazi. Mohd. Saddiq was not the owner of the property, he has no right to give it into Wakf and appellants are claiming in the shoe of Hazi Mohd. saddiq they have no independent claim, hence the decree is binding upon them and Courts below has rights held so. 4. Heard the learned Counsel for the parties the perused the judgments and decree under appeal as well as the original record of the case. 5. The Court below have held that initially decree has been passed against defendant No. 2 and Wakf Deed has been found proved by the Courts below. The present appellants are the beneficiaries. Issue No. 1 has been decided in favour of appellants that Wakf deeds have been executed, but at the same time, it has been held that Imtiaz Ali was not the owner of the properties and the rights of Haquq Baridari and Kalid Bardari has bot been proved and Exs. 17 and 18 has been considered and it has rightly been held that they are not proved and furthermore, they are not maintained by Dargah Authorities and could not be relied upon and after considering the Oral as well as the documentary evidence. It has been held that it has not been proved that Imtaz Ali was the owner of Haquq Baridari and Kalid Bardari rights. Furthermore, it has been held, that as per Wakf dee, Hazi Mohd. Saddiq has appointed himself as Mutwali but thereafter the property has been sold by Ex. A/4 dated 16.10.1960 and both the Court below have held that the Wakf was actually not acted upon and even in Ex. A/4, the property has not been sold as Mutwali. It has been sold as it was the personal properly of Hazi Mohd. Saddiq and Counsel for the respondent has rightly relied upon Mohammad Ali Mohammad Khan v. Mt. Bismillah Begam & Anr., AIR 1930 Privy Council 255 ; Abdul Mabud Khan & Ors. v. Nawazish Ali Khan, AIR 1925 Oudh 301 ; and ; Mt. It has been sold as it was the personal properly of Hazi Mohd. Saddiq and Counsel for the respondent has rightly relied upon Mohammad Ali Mohammad Khan v. Mt. Bismillah Begam & Anr., AIR 1930 Privy Council 255 ; Abdul Mabud Khan & Ors. v. Nawazish Ali Khan, AIR 1925 Oudh 301 ; and ; Mt. Alimunnisa Bibi v. Mohammad Abdur Rahman & Ors., AIR 1938 Allahabad 485 ; wherein it has been held that a deed of Wakf should make a statement conveying the idea that executant relinquished his possession as owner and took possession as Mutwali however no particular form is necessary. Where the Wakf has been executed without intention to devolve the ownership cannot be given effect, and as such in the present case also, the property has been sold by wakif as his personal property, hence the Court below has rightly held that the Wakf has never been acted upon and further reliance has been placed on Muhammad Ibrahim & Ors. v. Bibi Mariam, AIR 1929 Patna 410 , wherein it has been held that for creation of Wakf, the intention is essential and only from the admission of execution, creation of Wakf cannot operate, hence it is clear that for creation of Wakf intention is essential. There must be a clear declaration from which creation could be presumed. Here in the present case, as rightly held by both the Courts below that there was no intention to create Wakf and the property has been sold the personal property of Hazi Mohd. Saddiq, the findings of both the Courts below are sound. 6. The other contention of the respondents is that to create a valid Wakf it is essential that all the co-shares of the property must associate -with the creation of the Wakf. Here in the present case, it has categorically been held by both the Courts below that Hazi Mohd. Saddiq was not the only owner of the property and rights of Haquq Baridari and Kalid Bardari rights but daughters of lmtiaz Ali along with their decedents were also alive. Here in the present case, it has categorically been held by both the Courts below that Hazi Mohd. Saddiq was not the only owner of the property and rights of Haquq Baridari and Kalid Bardari rights but daughters of lmtiaz Ali along with their decedents were also alive. It has also been contended that the Wakf deed has been signed by husband of the surviving daughters of lmtiaz Ali arid,this could be treated as concurrence of the daughters, but the Courts below have held that Signing as attesting witness would not mean that other decedents of lmtiaz Ali have concurrent with the creation of the Wakf and when Hazi Mohd. Saddiq was not the sole owner, he was not having competence to create the Wakf and reliance has rightly been placed on Abdul Qavi Khan v. God Almighty through Asaf Ali Khan & Ors., AIR 1962 Allahabad 364 , wherein in Para No. 31, it has been held as under : " ..........The sine qua non for the creation of Wakf is that the property must be owned by the wakif." 7. Here in the present case, Hazi Mohd. Saddiq was not the sole owner of the property, he was not entitled for creating Wakf of the property. The First Appellate Court has rightly framed and answered the issue that whether lmtiaz Ali was the owner of the property and Hazi Mohd. Saddiq was competent to create Wakf by deeds dated 30.7.1934 and 22.5.1940 and furthermore, whether rite decree passed in Civil Suit No. 271/63 is illegal and not operative against the appellants. The Courts below have also held that there is no evidence that the decree has been obtained by way of fraud or mis-representation or it has not been objected seriously or the Hazi Mohd. Saddiq was ever negligent in defending the rights. There is no evidence of any manipulation. 8. In view of the above, both the Courts below were concurrent in their findings and the objections which have been raised by the appellants are questions of fact which have been answered by the Courts below concurrently. No question of law has been raised and the settled proposition is that Second Appeal could be entertained only on the point of substantial question of law. No question of law has been raised and the settled proposition is that Second Appeal could be entertained only on the point of substantial question of law. Here in the present case, the Counsel for the appellant could not point out any question of law much less the substantial question of law, hence the Appeal is liable to be dismissed.The Appeal is accordingly dismissed.Appeal dismissed. *******