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2017 DIGILAW 2120 (MAD)

A. Jahir Ali v. M. A. Samadusahib

2017-07-19

T.RAVINDRAN

body2017
ORDER : Challenge in this civil revision petition is made by the revision petitioner/plaintiff to the Judgment and Decree, dated 01.11.2004, passed in O.S. No. 237 of 2002, on the file of the Wakf Tribunal (Principal Sub Court), Tirunelveli. 2. The said suit has been laid by the revision petitioner for the reliefs of declaration and permanent injunction or in the alternative for the relief of possession. 3. In brief, according to the revision petitioner, the revision petitioner's Trust has been registered under the Wakf Act in the year 2002 and the revision petitioner A.Jahir Ali is the Muthavalli of the revision petitioner's Trust. The revision petitioner's grandfather Ahamed Ibrahim created the revision petitioner's Trust by way of the registered document dated 10.02.1976 and under the same, the suit properties are endowed with the Trust for performing certain obligations mandated under the Trust and according to the revision petitioner, the suit properties are being utilized only for the performance of the obligations mandated under the Trust and while creating the Trust, Ahamed Ibrahim had nominated the revision petitioner's father Mohammed Abdul Jabar as the Muthavalli and the revision petitioner's father had nominated the revision petitioner A.Jahir Ali as the next Muthavalli to succeed him by an Appointment Order, dated 20.12.1984 and on the demise of the said Mohammed Abdul Jabar on 02.01.1985, the revision petitioner A.Jahir Ali has assumed the office of the Muthavalli and discharging the obligations to be carried out under the Trust vis-a-vis the suit properties. The first defendant, who is the paternal uncle of the revision petitioner, has no right over the suit properties and not acted as Muthavalli in respect of the revision petitioner's Trust at any point of time. While so, it is the case of the revision petitioner that the first defendant had created a fraudulent Sale Deed, dated 10.01.2002, in favour of the second defendant as if the first item of the suit properties had been conveyed to the second defendant. While so, it is the case of the revision petitioner that the first defendant had created a fraudulent Sale Deed, dated 10.01.2002, in favour of the second defendant as if the first item of the suit properties had been conveyed to the second defendant. However, the first defendant is not entitled to legally execute such a Sale Deed in respect of the suit properties and the said sale transaction is barred under the law and taking advantage of the above said fraudulent document, according to the revision petitioner, the defendants 1 and 2 attempted to evict the tenants in the occupation of the first item of the suit properties, however, they are not entitled to do so. As per Section 51 of the Wakf Act, the Sale Deed, dated 10.01.2002, is void and cannot be enforced and the defendants cannot claim any right or title over the suit properties as such under the above mentioned Sale Deed. While so, taking advantage of the above said Sale Deed, inasmuch as the defendants attempted to dispute the title of the revision petitioner's Trust over the suit properties and interfere with his possession and enjoyment of the same in the capacity of Muthavalli, according to the revision petitioner, the suit had been laid for appropriate reliefs. 4. The case of the defendants 1 and 2 in their written statement in brief is that A.Jahir Ali, who had laid the suit claiming to be the Muthavalli, is not competent to represent the revision petitioner's Trust and file the suit. The Appointment Order, dated 20.12.1984, on the basis of which A.Jahir Ali claiming to be the Muthavalli of the revision petitioner's Trust, is a bogus document created with the sole object of grabbing the suit properties. The said document is said to have been executed in a stamp paper, dated 20.12.1984, which stamp paper had been sold during August 1990 by the Stamp Department, Tuticorin, therefore, on the said ground alone, it is to be noted that the Appointment Order, dated 20.12.1984, had been concocted and forged by A.Jahir Ali in the name of Mohammed Abdul Jabbar, who did not issue any such order appointing A.Jahir Ali as the Muthavalli of the revision petitioner's Trust. Further, the revision petitioner A.Jahir Ali along with his brothers had also issued a publication in the Newspaper on 07.01.2002 and in the said publication, there was no reference at all about the Appointment Order, dated 20.12.1984, said to have been issued by Mohammed Abdul Jabbar. The suit laid by the revision petitioner is not maintainable under the provisions of the Wakf Act. The suit properties had not been notified under the Wakf Act on the date of sale, dated 10.01.2002. The Wakf Nama, dated 10.02.1976 is void as the same had been created in the name of the dead person. The revision petitioner has not placed any document to show that the revision petitioner's Trust has been functioning as such and enjoying the suit properties as put-forth by the revision petitioner and discharging the obligations of the so called revision petitioner's Trust. The suit properties have never stood in the name of the revision petitioner's Trust and the same stood only in the name of Ahamed Ibrahim and the first item of the suit properties now stands in the name of the second defendant and the second and third items of the suit properties now stand in the name of Ahamed Ibrahim. The first defendant was in enjoyment of the first item of the suit properties and accordingly, he sold the same to the second defendant on 09.01.2002 for valid consideration and conveyed possession of the same to the second defendant and it is only the second defendant now in possession and enjoyment of the first item of the suit properties and the assessment of the property tax of the same also stands in the name of the second defendant. The wakf had been registered only after execution of the Sale Deed dated 09.01.2002 and further inasmuch as the defendants 1 and 2 had not been served with any notice before the issuance of the said notification, the same is not binding on them and the revision petitioner's Trust never came into existence and the suit properties all along had been enjoyed as the family properties and accordingly, the first defendant had sold the first item of the suit properties to the second defendant. The Sale Deed, dated 09.01.2002, is valid and binding on the revision petitioner and there is no cause of action for the suit and hence, the suit laid by the revision petitioner is liable to be dismissed. 5. The case of the third defendant as put-forth in the written statement in brief is that the third defendant has no objection for passing a decree in favour of the revision petitioner. It is true that the wakf is registered under the provisions of the Wakf Act and it is under the superintendence and control of the Wakf Board. The sale deed executed by the first defendant in favour of the second defendant is not a valid one and not binding on the wakf and the second defendant cannot claim any right or title under the said Sale Deed, hence, the suit may be decreed as prayed for. 6. On the basis of the above said pleadings, the following issues have been framed by the Trial Court for determination: i. Whether the revision petitioner is entitled to legally maintain the suit claiming to be the Muthavalli of the revision petitioner's Trust? ii. Whether the suit is not maintainable as per the Wakf Act? iii. Whether the revision petitioner is entitled to obtain the reliefs of declaration and permanent injunction as prayed for? and iv. To what relief the revision petitioner is entitled to? 7. In addition to the above said issues, the following issues have also been framed by the Trial Court for determination: i. Whether the revision petitioner's Trust created in the name of the dead person is not valid? and ii. Whether the revision petitioner is entitled to obtain the alternative relief of possession as prayed for? 8. In support of the revision petitioner's case, P.Ws.1 to 3 were examined and Exs.P1 to P17 were marked and on the side of the defendants', D.W.1 was examined and Exs.D1 and D2 were marked. 9. On a consideration of the oral and documentary evidence put-forth by the respective parties, it is found that the Trial Court was pleased to dismiss the suit laid by the revision petitioner. Aggrieved over the same, the revision petitioner has come forward with the present civil revision petition. 10. 9. On a consideration of the oral and documentary evidence put-forth by the respective parties, it is found that the Trial Court was pleased to dismiss the suit laid by the revision petitioner. Aggrieved over the same, the revision petitioner has come forward with the present civil revision petition. 10. The following points arise for determination in this civil revision petition : i. Whether A.Jahir Ali is entitled to lay the suit on behalf of the revision petitioner's Trust claiming to be its Muthavalli? ii. Whether the suit properties are the properties of the revision petitioner's Trust as put-forth by the revision petitioner? iii. Whether the Sale Deed, dated 09.01.2002, is true, valid and binding on the revision petitioner? iv. Whether the revision petitioner is entitled to obtain the reliefs of declaration and permanent injunction or in the alternative for the relief of possession as prayed for? v. To what relief the revision petitioner is entitled to? POINT No. I : 11. The suit laid on behalf of the revision petitioner's Trust by A. Jahir Ali claiming to be its Muthavalli is seriously contested by the defendants. According to the revision petitioner, the suit properties are endowed with the revision petitioner's Trust under the document, dated 10.02.1976, marked as Ex.P13 and the revision petitioner's Trust originally was created by Ahamed Ibrahim, who is the grandfather of A.Jahir Ali, endowing the suit properties in favour of the revision petitioner's Trust for performing the obligations mandated under the Trust and further, according to the revision petitioner, his father Mohammed Abdul Jabbar was appointed as Muthavalli by Ahamed Ibrahim and during his lifetime, his father appointed the revision petitioner as Muthavalli by an Appointment Order, dated 20.12.1984, marked as Ex.P14 and thus, on the demise of his father, he had assumed the Muthavalliship of the revision petitioner's Trust and enjoying the suit properties. While so, the defendants 1 and 2 had attempted to interfere with the possession and enjoyment of the suit properties by the revision petitioner's Trust and hence, according to the revision petitioner, he has been constrained to lay the suit for the appropriate reliefs. While so, the defendants 1 and 2 had attempted to interfere with the possession and enjoyment of the suit properties by the revision petitioner's Trust and hence, according to the revision petitioner, he has been constrained to lay the suit for the appropriate reliefs. The defendants 1 and 2 in their written pleas had resisted the revision petitioner's suit on the footing that A.Jahir Ali is not the Muthavalli of the revision petitioner's Trust and the Appointment Order on the basis of which, the said A.Jahir Ali claims to be the Muthavalli of the Trust, is a concocted document, which had been engrossed on a stamp paper sold in August 1990 and there is also no reference about the Appointment Order in the publication effected by the revision petitioner and his brothers in the Newspaper on 07.01.2002 and hence, according to the defendants, A.Jahir Ali cannot be the Muthavalli of the revision petitioner's Trust on the basis of such an invalid document and on that score alone, the suit laid by A.Jahir Ali is not legally maintainable and A.Jahir Ali is not entitled to maintain the suit as the Muthavalli of the revision petitioner's Trust and on that score alone the suit should fail. 12. Further, according to the defendants 1 and 2, the suit properties are not endowed with the revision petitioner's Trust as such by Ahamed Ibrahim and the Trust cannot be created in the name of the dead person and the suit properties had been enjoyed as the family properties and accordingly, the first defendant, who was in possession and enjoyment of the first item of the suit properties, had alienated the same to the second defendant by way of the Sale Deed, dated 09.01.2002 and delivered possession to him and pursuant to the same, it is only the second defendant now in possession and enjoyment of the first item of the suit properties and inasmuch as the Trust had been registered under the Wakf Act subsequent to the sale transaction, dated 09.01.2002, the same is invalid and not binding upon the defendants and hence, the revision petitioner is not entitled to obtain the reliefs sought for in the plaint. 13. 13. A. Jahir Ali, who claimed to be the Muthavalli of the revision petitioner's Trust, in the light of the defence put-forth by the defendants 1 and 2 that he is incompetent to act as Muthavalli of the revision petitioner's Trust, should establish that he has the locus standi to maintain the suit on behalf of the revision petitioner's Trust as its Muthavalli. As far as the claim of A.Jahir Ali as the Muthavalli of the revision petitioner's Trust, the Appointment Order, dated 20.12.1984, marked as Ex.P14, is pressed into service. According to the revision petitioner, his grandfather had created the Trust and appointed his father Mohammed Abdul Jabbar as the Muthavalli of the Trust and Mohammed Abdul Jabbar during his lifetime had, by an Appointment Order dated 20.12.1984, appointed A.Jahir Ali as his successor to assume the office of Muthavalli and thus, according to A.Jahir Ali, on the demise of his father, he had assumed the Muthavalliship of the revision petitioner's Trust and enjoying the suit properties by discharging the obligations mandated under the Trust. However, according to the defendants 1 and 2, the said Appointment Order marked as Ex.P14 is a concocted document and on the basis of the same, the revision petitioner cannot claim to be the Muthavalli of the revision petitioner's Trust. 14. It is the specific case of the defendants that the Appointment Order marked as Ex.P14 has been engrossed in a stamp paper sold during August, 1990 and in such view of the matter, it is contended that the Appointment Order, dated 20.12.1984, could not have been brought out in such a stamp paper and on that score alone Ex.P14 should be declared as a forged document and thus, according to the defendants 1 and 2, Mohammed Abdul Jabbar did not appoint A.Jahir Ali as his successor to assume the office of the Muthavalli of the revision petitioner's Trust. The Lower Court, on an appreciation of the rival contentions put-forth by the respective parties with reference to the above issue and also on a perusal of the Appointment Order marked as Ex.P14, had rightly come to the conclusion that the Appointment Order, dated 20.12.1984, being found to be engrossed in a stamp paper sold during August, 1990, held that the said Appointment Order is not a true one and created by the revision petitioner. The said finding of the Lower Court as regards the validity of Ex.P14 is not shown to be perverse or without any basis. It is found that the Lower Court had come to the conclusion based upon the perusal of the said document and held that the revision petitioner had failed to establish the validity of the Appointment Order i.e., the same had been truly executed by his father Mohammed Abdul Jabbar. 15. That apart, as rightly contended by the defendants if really according to A.Jahir Ali Ex.P14 had been executed by his deceased father, nothing prevented him from examining the attestors to the document or the scribe of the document to establish that the said document had indeed been executed by Mohamed Abdul Jabbar during his lifetime appointing A.Jahir Ali as the next Muthavalli. However, it is found that for the reasons best known to him, he had not taken care to examine the scribe or the attestors of Ex.P14 to substantiate his case that Mohammed Abdul Jabbar had appointed him as the successor Muthavalli under the said document. Therefore, on that ground also, as rightly held by the Lower Court, it is found that Ex.P14 does not merit acceptance as such. 16. Further, it is also noted that the revision petitioner and his brothers had given a publication in the Newspaper on 07.01.2002 claiming them to be the joint Muthavallies of the revision petitioner's Trust. If the revision petitioner A.Jahir Ali had been appointed as the sole Muthavalli by his father under Ex.P14, as rightly contended by the defendants 1 and 2, the revision petitioner alone would have issued the publication claiming himself to be the sole Muthavalli of the revision petitioner's Trust and inasmuch as the document marked as Ex.P14 was not in existence at that point of time, it is found that under Ex.D1 the revision petitioner A.Jahir Ali and his brothers had given a publication terming all of them as the Muthavallies of the revision petitioner's Trust and in such view of the matter, it is found by the Lower Court that on that ground also Ex.P14 is found to be a document surrounded by suspicion and doubts and therefore, held that no safe credence could be attached to uphold the claim and entitlement of A.Jahir Ali to be the Muthavalli of the revision petitioner's Trust. In the light of the above discussions, it is found that the Lower Court accordingly held that the revision petitioner A.Jahir Ali had failed to establish that he had been validly appointed as the Muthvalli of the revision petitioner's Trust and accordingly found that A.Jahir Ali is not competent to maintain the suit as the Muthavalli of the revision petitioner's Trust and consequently, dismissed the suit. 17. In view of the foregoing reasons, the findings of the Lower Court that A. Jahir Ali is not the Muthavalli of the revision petitioner's Trust and hence incompetent to lay the suit on behalf of the revision petitioner's Trust is found to be in order and accordingly, Point No. I is answered against the revision petitioner and in favour of the defendants. POINT Nos. II & III : 18. As rightly found by the Court below, considering the Wakf Nama, dated 10.02.1976, created by Ahamed Ibrahim and marked as Ex.P13 and also the Settlement Deeds, dated 21.02.1976 and 14.07.1977, executed by Mohammed Abdul Jabbar, M.A. Samad/first defendant herein and another, marked as Exs.P2 and P3, endowing the suit properties in favour of the revision petitioner's Trust, it is found that the suit properties are endowed with the revision petitioner's Trust for the purpose of performing the obligations mandated under the Trust. When the first defendant himself as a party to the transactions marked as Exs.P2 and P3 and when the defendants in their written pleas have not contested the validity of Ex.P13 as such and on the other hand would only contend that the revision petitioner's Trust as such has not come into existence and the suit properties had been all along treated only as the family properties of Ahamed Ibrahim and others and on the other hand, when it is found that Ahamed Ibrahim under Ex.P13 and his family members including the first defendant under Exs.P2 and P3 had endowed the suit properties in favour of the revision petitioner's Trust, it is far-fetched on the part of the defendants to contend that though the Trust had been created as such under the above said document, the Trust had never come into existence, which cannot be accepted. Therefore, it is found that as per Exs.P13, P2 and P3, the revision petitioner's Trust had been created and the suit properties had been endowed with the revision petitioner's Trust for the purpose of performing the obligations mandated under the Trust. 19. It is also found that the revision petitioner's Trust had been registered under the Wakf Act and the same could be evidenced by the Trust Registration Certificate, dated 14.06.2002, marked as Ex.P1. However, Ex.P1 is being challenged by the defendants on the footing that the first defendant, who had been in possession and enjoyment of the first item of the suit properties had alienated the same to the second defendant by way of Sale Deed dated 09.01.2002 and therefore, it is contended that the Registration Certificate, dated 14.06.2002 marked as Ex.P1, is invalid and not binding upon the defendants and therefore, the suit properties as such cannot be treated as the properties of the revision petitioner's Trust. However, when the execution of Exs.P13, P2 and P3 are not seriously contested and also established by the revision petitioner as such by marking the other documents exhibited in the suit and through the evidence of P.Ws.1 to 3, it is found that the suit properties had been endowed only to the revision petitioner's Trust. However, according to the first defendant, even though the revision petitioner's Trust had been created, the suit properties had been treated as the family properties. With reference to the same, there is no material to hold that after creation of the Trust, more particularly, after the creation of Exs.P13, P2 and P3, the suit properties had been treated as the joint family properties, as put-forth by the defendants. That apart, the defendants in the written statement as also during the course of evidence had not established as to how the first defendant is entitled to claim exclusive title in respect of the first item of the suit properties other than stating that the first item of the suit properties had been in the possession and enjoyment of the first defendant. No valid material is placed to hold that the first defendant has any exclusive right over the first item of the suit properties and in such view of the matter, it is found that the first defendant, without any valid title as such, had conveyed the first item of the suit properties in favour of the second defendant by way of the Sale Deed, dated 09.01.2002. Therefore, when the first defendant had not placed any material to show that he has valid title to convey the first item of the suit properties in favour of the second defendant, it is found that the Sale Deed, dated 09.01.2002, is invalid and not binding upon the revision petitioner's Trust. That apart, it has not been established by any acceptable material that the defendants 1 and 2 have been enjoying the suit properties as lawful owners pursuant to the sale transaction, dated 09.01.2002. However, it has been contended by the learned counsel for the defendants 1 and 2 that the revision petitioner's Trust said to have been created in the name of the dead person is invalid and therefore, the case of the revision petitioner should fail. However, the Lower Court has on the rightful appreciation of the materials placed and also relying upon the decision placed by the revision petitioner's counsel had come to the conclusion that the Wakf Nama created in the name of the dead person is also a valid transaction and therefore, rejected the contention that the Wakf Nama created in the name of the dead person is to be declared as invalid. 20. In the light of the above discussions, it is found that the suit properties are the properties belonging to the revision petitioner's Trust and endowed with the same by way of Exs.P13, P2 and P3 and inasmuch as the first defendant has not placed any acceptable material to show that he has exclusive right and title over the first item of the suit properties, I hold that the sale transaction, dated 09.01.2002, is invalid and not binding upon the revision petitioner's Trust. The Lower Court is found to have, on mis-appreciation of the evidence on record and also the facts and circumstances of the case, proceeded to hold that the revision petitioner's Trust has not come into existence and the suit properties had been enjoyed as the family properties as put-forth by the defendants and on the above said findings held that the Sale Deed, dated 09.01.2002, is true, valid and binding on the revision petitioner's Trust. 21. However, in the light of the above discussions, I hold that the suit properties belonged to the revision petitioner's Trust and the Sale Deed, dated 09.01.2002, is not true, valid and binding on the Trust, accordingly, Point Nos. II and III are answered in favour of the revision petitioner's Trust and against the defendants. POINT No. IV : 22. Inasmuch as under Point No. I it has been held that A.Jahir Ali is not entitled to maintain the suit as the Muthavalli of the revision petitioner's Trust, I hold that the reliefs sought for by him could not be granted as such, I therefore hold that the revision petitioner is not entitled to obtain the reliefs sought for in the suit laid by him claiming to be the Muthavalli of the revision petitioner's Trust and accordingly, Point No. IV is answered in favour of the defendants and against the revision petitioner. POINT No. V : 23. In conclusion, the civil revision petition is dismissed with costs and the Judgment and Decree, dated 01.11.2004, passed in O.S.No.237 of 2002, on the file of the Wakf Tribunal (Principal Sub Court), Tirunelveli, are confirmed. Consequently, connected civil miscellaneous petition is closed.