M. Mohamed Thaha Maraicair v. N. Syed Sultan Beevi
2018-10-09
P.T.ASHA
body2018
DigiLaw.ai
JUDGMENT : P.T. Asha, J. The issue for consideration in the above Civil Revision Petitions is the correctness of the order passed by the learned Principal District Judge (Wakf Tribunal, Nagapattinam in W.O.P.No.1 of 2004), in and by which the learned Judge has set aside the order passed by the petitioner in C.R.P(NPD)No.2070 of 2007 dated 24.05.2007 under Section 54(3) of the Wakf Act, 1995 (hereinafter referred to as Act ) directing the first respondent herein to remove the encroachment and deliver possession of the land at T.S.No.2006, Pudumanai Street, situated at Nagore, Nagapattinam Taluk and District measuring an extent of 1 cent belonging to the Meera Labbai Maraicair Trust. The petitioner in C.R.P(NPD)No.296 of 2007 is the seventh respondent in C.R.P(NPD)No.2070 of 2007. The parties are referred to in the same array as in C.R.P(NPD)No.2070 of 2007. 2. The genesis of the dispute arises out of the Wakf created in the year 1932 by one Meera Labbai Maraicair. The said Meera Labbai Maraicair had executed a Wakf deed dated 28.05.1932 and the salient features of the Wakf Nama are as follows: (a) That the property of the Wakf in respect of which the Wakf had been created was a vacant site measuring an extent of 10,028 Sq.ft. and was described as a garden in the Wakf deed. (b) The Wakif had listed the name of his children viz., Mohamed Ali Maraicair, Mohamed Saliq Maraicair, Zulaika Beevi Ammal, Ahamed Nachiyar Ammal & Habeeb Nachiyar Ammal, who were directed under the Wakf to unanimously elect one amongst themselves to manage the property for collecting the income from the usufructs. After defraying the expenses for the up keep and maintenance of the property to spend a sum of Rs. 4/- to recite the Fatihah which is the first chapter of the Holy Kuraan consisting of 7 Versus (Ayat). (c) After defraying the expenses and meeting the expenses for the recitation, the balance amount was to be distributed among his children and their children (descendants of the Wakif) in the same proportion to which they were entitled. The children of the Wakif apart from carrying out the above instruction was also to take care of the Wakif and his wife. The Wakif has clearly instructed that neither he nor his descendants could sell, mortgage or create any kind of an encumbrance on the property.
The children of the Wakif apart from carrying out the above instruction was also to take care of the Wakif and his wife. The Wakif has clearly instructed that neither he nor his descendants could sell, mortgage or create any kind of an encumbrance on the property. (d) Possession of the property which is the subject matter of the Wakf deed was handed over on the very same day to his children. (e) The Wakif had made it clear that in case of any alienation or encumbrance made in respect of the property concerned, then such alienation or encumbrance would be invalid. The Wakf is therefore a Wakf-alal-aulad. 3. Therefore, from a reading of the Wakf deed, it is manifest that the Wakif had handed over the vacant land with fruit bearing trees (corpus) to his children simultaneously with the execution of the Deed. The management was also handed over to the children. He had also stated that the property was of a value of Rs. 725/- and it was his intention that the property should be retained in the very same condition and from out of the usufructs, his desire was to recite the Fatihah on specific days and the balance to go to his descendants. In fact, the Wakif had made it clear that after defraying the expenses for up keep of the property, a sum of Rs. 4/- had to be spent for the holy purpose and thereafter, the balance was to be distributed amongst his children and their children in the same proportion to which they are entitled. The Wakf property and its details: 4. It is to be mentioned that when the Wakf had been created, the Wakf Act had not come into force and therefore, the property was not brought within fold of the petitioner Board. During the lifetime of the Wakif, it appears that the property remained intact. Thereafter, his daughter Zulaika Beevi had entered the property and put up a small thatched hut. Her son Noordin Maraicair, who is the husband of the first respondent and father of respondents 2 to 6 had also entered the property and was residing in the said house. The entire property (the small hut to an extent of 1 cent and the remaining vacant site) was being enjoyed only by Zulaika Beevi and her son to the exclusion of all the other beneficiaries.
The entire property (the small hut to an extent of 1 cent and the remaining vacant site) was being enjoyed only by Zulaika Beevi and her son to the exclusion of all the other beneficiaries. It is seen from the evidence of the seventh respondent that the two sons of the Wakif had left the Country for eking out their living and had died there. Thereafter, one of the beneficiaries through the son of Meera Labbai Maraicair had approached Noordin to permit them also to enjoy the property which was flatly refused. Meanwhile, the Wakf Act, 1995 was also introduced and the seventh respondent herein who is one of the beneficiaries of original Wakif approached the petitioner Board to register the Wakf under the Act. He had also brought to the notice of the petitioner Board that the property which the Wakif wanted to be retained as a vacant land had been encroached upon by the respondents 1 to 6 herein contrary to the dicta of the Wakif. The proceedings of the petitioner Board: 5. The petitioner Board inspected the property and thereafter, issued Notice dated 24.01.2000, under Section 54(1) of the Act calling upon respondents 1 to 6 herein to show cause as to why they should not be treated as encroachers under Section 54(3) of the Act and action initiated on available material. The petitioner Board had also issued the notice of enquiry dated 21.03.2000 filed as Ex.R.16 to respondents 1 to 6 herein who had received the notice on various dates i.e., 31.01.2000, 03.03.2000 and 21.03.2000.
The petitioner Board had also issued the notice of enquiry dated 21.03.2000 filed as Ex.R.16 to respondents 1 to 6 herein who had received the notice on various dates i.e., 31.01.2000, 03.03.2000 and 21.03.2000. They had also submitted a reply dated 03.02.2000 and 07.02.2000 and on considering the reply and the Wakf deed, on 24.05.2000, the petitioner Board had passed the following order: "Therefore under Section 54(3) of the Wakf Act, 1995, Tmt.Syed Sultan Beevi is hereby directed to remove the encroachment and deliver vacant possession of the land in T.S.No.2006, Pudumanai Street, situated at Nagore, Nagapattinam Taluk and District measuring an extent of one Cent belonging to the Meera Labbai Maraicar Trust Wakf which is a surveyed and notified wakf to the Mutawalli of the said Wakf within 10 days from the date of receipt of this proceedings otherwise further action will be taken under the provisions of the Wakf Act, 1995." The Board has also removed the first respondent as Mutawalli and appointed the seventh respondent as the Mutawalli, considering the high handedness displayed by respondents 1 to 6 in retaining possession of the property. Proceedings initiated by the respondents 1 to 6: 6. Challenging the said order, respondents 1 to 6 herein had filed a Petition before the Wakf Tribunal in W.O.P.No.1 of 2004 under Section 83(3) of the Wakf Act. The main contentions that had been put forward in the said Petition are reads as follows: (a) That after the death of the original Wakif, who was the Mutawalli till his death, Zulaika Beevi his eldest daughter became the Mutawalli. (b) On 30.06.1964, the said Zulaika Beevi died. (c) On 22.07.1965, her son Noordin was unanimously selected as the Mutawalli (however there are no details as to whether the other descendants of the original Wakif had chosen the said Noordin). (d) On 20.05.1980, Noordin makes a Will in which he bequeathes the property on his legal heirs. (e) On 05.02.1990, Noordin died and thereafter, his wife and children who are respondents 1 to 6 herein have been living in various parts of the house. They would also contend that they had obtained the no objection from the other descendants to occupy the premises. 7. When the Application was filed, respondents 1 to 6 would themselves admit that they are in occupation of 5 cents out of a total suit property measuring an extent of 10,028 Sq.ft.
They would also contend that they had obtained the no objection from the other descendants to occupy the premises. 7. When the Application was filed, respondents 1 to 6 would themselves admit that they are in occupation of 5 cents out of a total suit property measuring an extent of 10,028 Sq.ft. In fact, when the original notice dated 24.01.2000 was issued by the petitioner Board after inspecting the premises, the encroachment was only to an extent of 1 cent and by the time Petition had been filed, the encroachment had extended to 5 cents. The respondents had put forward a case that they had been in possession of the premises right from 1954 onwards and that there had been no objections from any quarter till the present proceedings. Therefore, they sought to set aside the order passed by the petitioner Board. They would further question the appointment of the seventh respondent as Mutawalli. Counter of the Petitioner Board and seventh respondent in W.O.P.No.1 of 2004: 8. The respondents had raised an objection to the filing of the Petition under Section 83(3) by the respondents 1 to 6 herein before the Wakf Tribunal. The respondents would contend that against the order passed under Section 54(3) of the Act, the remedy available to the aggrieved party was only to file a suit wherein respondents 1 to 6 had to establish their right, title and interest to the Wakf property as contemplated under Section 54(4) of the Act. They would also contend that as against the removal of the first respondent as Mutawalli and appointment of the seventh respondent as Mutawalli only an Appeal under Section 64(4) to the Tribunal would lie. They further contended that when the Wakf was created, the property in question was a vacant site and thereafter, Zulaika Beevi had encroached into the property contrary to the terms of the Wakf and put up a small hut, originally to an extent of 1 cent and over a period of time had encroached to an extent of 5 cents.
They further contended that when the Wakf was created, the property in question was a vacant site and thereafter, Zulaika Beevi had encroached into the property contrary to the terms of the Wakf and put up a small hut, originally to an extent of 1 cent and over a period of time had encroached to an extent of 5 cents. They would further contend that once the Wakf property had been included in the Register of the petitioner Board, no one could enter into the possession of the property without the consent of the Board and under Section 54 of the Act, on receiving any complaint or on his own notion, the petitioner Board could remove the encroachment on the Wakf property. It is in exercise of this power that the notice and the subsequent order had been issued by the petitioner Board. It was further contended that the respondents 1 to 6 had totally flouted the dicta of the Wakf and not only had they encroached into the property but they had also not complied with the desire of the Wakif with reference to the recitation of Fatihah. The seventh respondent would contend that this was being done by the other beneficiaries. Order of the Tribunal: 9. The learned Principal Subordinate Judge (Wakf Tribunal), Nagapattinam had allowed the Petition and set aside the order passed by the petitioner Board. The learned Judge has proceeded to pass such an order on the basis that the respondents 1 to 6 have been in occupation of the premises from 1954 and that the documents which have been produced on the side of the seventh respondent were only after the year 2000. The learned Judge has also proceeded to accept the contention of respondents 1 to 6 that Noordin was unanimously elected as Mutawalli by all the beneficiaries. Aggrieved by this order, now the petitioner Board and the seventh respondent are before this Court with C.R.P. (NPD) Nos. 296 & 2070 of 2007 respectively. Events that have been transpired subsequent to the filing of the Wakf Original Petition before the Tribunal: 10. When the initial Show Cause Notice had been issued, the said Zulaika Beevi was in occupation of only 1 cent out of total extent of 10,028 Sq.ft. Thereafter, while filing the petition before the Tribunal, the extent of encroachment had increased to an extent of 5 cents.
When the initial Show Cause Notice had been issued, the said Zulaika Beevi was in occupation of only 1 cent out of total extent of 10,028 Sq.ft. Thereafter, while filing the petition before the Tribunal, the extent of encroachment had increased to an extent of 5 cents. However, respondents 1 to 6 would contend that they are in occupation of the entire extent of 10,028 Sq.ft. Thereafter, in the course of arguments before this Court, it has been brought to the notice of this Court that the respondents 1 to 6 herein have taken over the entire extent of 10,028 Sq.ft and put up pucca constructions. This Court by order dated 06.09.2008 had appointed an Advocate Commissioner to note down the physical features of the property, the extent of construction put up thereon, if such constructions were approved by the Municipality and if not what steps have been initiated by the Municipality against the unapproved constructions. The Advocate Commissioner had visited the property concerned and submitted his report in which he has given a tabulated statement showing the extent in occupation of each of the respondents and the nature of constructions put up thereon. The report and the sketch attached to the report shall form part of the order. 11. A perusal of this report would show that the wife of Noordin is not in occupation of the property and it is only the respondents 2 to 6 who are in occupation of the property and the fifth respondent has put up a 1481.2 Sq.ft., RCC Roofed House with 2 floors alongside the Tiled House. It is also seen that the respondents 2 & 3 are constructing a first floor in the portions in their occupation. The Advocate Commissioner had verified with Municipality and was informed that none of the buildings have been put up after obtaining the approval from the Municipality and it is also seen that an order dated 04.08.2015 had been issued by the Commissioner of Municipality, Nagapattinam directing the demolition of the constructions put up by the respondents. Thereafter, no further action has been taken. The respondents 1 to 6 have used the pendency of these proceedings to high handedly take over the entire property. Submissions Made: 12. Heard Mr. A.S. Kaizer, learned counsel appearing on behalf of the petitioner Board.
Thereafter, no further action has been taken. The respondents 1 to 6 have used the pendency of these proceedings to high handedly take over the entire property. Submissions Made: 12. Heard Mr. A.S. Kaizer, learned counsel appearing on behalf of the petitioner Board. The learned counsel for the petitioner Board would submit that the Wakf in question has been registered under Section 36 of the Act and respondents 1 to 6 themselves have admitted that the Wakf is registered with the Board. He would further argue that when the Wakf was created, the property in question was vacant site and it was the desire of the Wakif that the property should remain so and it was only from out of the usufructs from the property that the Wakif had given permission to his descendants to raise funds. The Wakif had in very clear terms stated that neither himself nor his descendants would have the power to alienate, lease, mortgage or otherwise in any manner encumber the suit property. The learned counsel would argue that by occupying the entire property, the respondents 1 to 6 herein have in effect encumbered the property. They have also violated the desire of the Wakif that all his descendants should enjoy the benefits from the usufructs in the proportion in which they would be entitled. The learned counsel would further argue that on 05.02.2007, this Court had directed the respondents to maintain status-quo for a period of 8 weeks and thereafter, the same was not extended. At the time of this order, the encroachment was only to an extent of 5 cents. However, the respondents 1 to 6 have proceeded thereafter to take law into their own hands by putting up unapproved constructions on the property over which all the descendants of the Wakif had the right to enjoy the usufructs taking advantage of the interim order not being extended. 13. Mr. S.M. Hameed Mohideen, learned counsel appearing on behalf of the petitioner in C.R.P. (NPD) No. 296 of 2007 and seventh respondent in C.R.P(NPD)No.2070 of 2007 would submit that as per the Wakf created by the late Wakif, the beneficiaries were only entitled to the usufructs and not to the corpus which is the property.
13. Mr. S.M. Hameed Mohideen, learned counsel appearing on behalf of the petitioner in C.R.P. (NPD) No. 296 of 2007 and seventh respondent in C.R.P(NPD)No.2070 of 2007 would submit that as per the Wakf created by the late Wakif, the beneficiaries were only entitled to the usufructs and not to the corpus which is the property. He further argued that when the Wakf Act was enacted in the year 1954, Zulaika Beevi did not take any steps to register the Wakf as contemplated under Section 25 of the Act, 1954. Once again, when the Wakf Act, 1995 was enacted, the respondents 1 to 6 herein did not take steps to register the Wakf under Section 36 of the Wakf Act, 1995. He would argue that under the provisions of Section 25(8) of the Wakf Act, 1954, every Wakf created before the commencement of the Act was to register itself within three months from the commencement of the Act and in case, Wakfs created subsequent to the coming into force of the Act within three months from the date of its creation. It was therefore mandatory that all Wakfs should register themselves on the coming into force of the Wakf Act, 1954. Section 36 of the Wakf Act, 1995 is inparimateria to Section 25 of the Wakf Act, 1954 and Section 36(8) of the Wakf Act, 1995 reads as follows: "36. Registration - (8) In the case of [auqafs] created before the commencement of this Act, every application for registration shall be made, within three months from such commencement and in the case of [auqafs] created after such commencement, within three months from the date of the creation of the [waqf]: Provided that where there is no Board at the time of the creation of a [waqf], such Application will be made within three months from the date of establishment of the Board." He would therefore submit that once the Wakf is registered, the property would automatically become the Wakf property registered under the Act and nothing should be done without the sanction of the Board. 14. ………………. 14.1. Mr.
14. ………………. 14.1. Mr. Girish, learned counsel appearing on behalf of the respondents 1 to 6 herein would argue that the Wakf in question is a family Wakf and after the death of the Wakif, who was its first Mutawalli, his daughter Zulaika Beevi became the second Mutawalli and thereafter, her son Noordin Maraicair became the third Mutawalli and on his death, his wife Syed Sultan Beevi became Mutawalli and continues to date. The first respondent herein claimed Mutawalliship under a registered Wakf (Will dated 20.05.1980, executed by Noordin Maraicair). He would further contend that right from the date of the creation of Wakf, they have been in possession and enjoyment of the property and the Wakf. The property tax, electricity bills, account books etc. stand in the name of Zulaika Beevi and thereafter, in the name of Noordin Maraicair. He would further argue that the Wakf Nama did not prohibit a woman from being appointed as a Mutawalli. 14.2. The learned counsel would further argue that the respondents 1 to 6 herein have been effectively carrying out the wish of the Wakif and are in effective possession and management of the Wakf property. He would further argue that since the possession of the property by the seventh respondent starts only from the year 2000 he cannot be appointed as a Mutawalli. In fact, the argument of the learned counsel for the respondents 1 to 6 was that the possession followed the right to be the Mutawalli. Discussion: 15. From the submissions of the counsels, perusal of the records and reading of the Wakf Act, the following factors emerge: When the Wakf in question i.e., the Meera Labbai Maraicair Trust, was created in the year 1932, the Wakf Act had not come into force. Thereafter, in the year 1954, the first Act was enacted and in 1995, the Wakf Act, 1995 was enacted. When the first Act came into force, there was a mandatory provision in Section 25 of the Act that all Wakfs whether created before or after the commencement of the Act were required to register themselves and the properties under the Act. The Wakf Act, 1995 also reiterated the said position.
When the first Act came into force, there was a mandatory provision in Section 25 of the Act that all Wakfs whether created before or after the commencement of the Act were required to register themselves and the properties under the Act. The Wakf Act, 1995 also reiterated the said position. It is seen from the records that the respondents 1 to 6 herein and their predecessor in interest i.e., Zulaika Beevi & Noordin Maraicair did not take any steps to register the said Wakf either under 1954 Act or 1995 Act and they continued to enjoy the property as their own. The Wakif under Ex.R.1, Wakf deed has made the following provisions: (a) That his five children viz., three sons and two daughters would unanimously select among themselves one person who effectively carried out the wishes of the Wakif. (b) That from out of the income from the property which was the subject matter (Ayan or Corpus) was to be utilized in the following manner. (i) expenses for the up keep and maintenance of the property to be disbursed. (ii) Rs. 4/- to be used for reciting the Fatihah which is the first chapter of the Holy Kuraan consisting of 7 Verses (Ayat) on specific days. (iii) The remaining amount to be disbursed amongst all the legal representatives in the proportion to which they are entitled to. (c) To maintain the Wakif and his wife that the descendants shall not alienate, mortgage or create any encumbrance in respect of the property and in the event of such encumbrance being created, the same will be invalid. That a sum of Rs. 100/- per year could be realized from the property. (d) That the possession of the property was handed on that very day to the beneficiaries. (e) That the property which is the subject matter of the Wakf Deed was a vacant land used as a garden. 16. Therefore, from reading of these recitals, it was very clear that the Wakif had handed over to his children a vacant land which was being used as a garden from out of which he was earning an income of Rs. 100/- per year. The children were directed to unanimously elect from amongst themselves one person to act as a Mutawalli to carry out the desire of the Wakif. It is therefore clear that the Wakif was not the first Mutawalli.
100/- per year. The children were directed to unanimously elect from amongst themselves one person to act as a Mutawalli to carry out the desire of the Wakif. It is therefore clear that the Wakif was not the first Mutawalli. The Wakif had prohibited the children and their descendants from selling, leasing, charging or in any other manner encumbering the property. It is seen that the property continued to remain vacant till the Wakif was alive. It appears that after the Wakif's death, her daughter Zulaika Beevi had entered into possession of the property and the first document showing possession is Ex.P.7 dated 26.12.1964. This clearly indicates that it was after the coming into force of the Wakf Act in the year 1954 that Zulaika Beevi had entered into possession of the property without registering the same with the Board. When she had first taken possession of the property, she occupied only an extent of 1 cent and thereafter, when the proceedings were filed before the Tribunal, the enjoyment extended to an extent of 5 cents. The entry of Zulaika Beevi into the property was in total violation of the terms of the Wakf Deed which clearly prohibited the children and their descendants from creating any manner of encumbrance upon the property. There is also no document filed on the side of the respondents 1 to 6 to show that the other children of the Wakif had unanimously elected Zulaika Beevi as Mutawalli. The respondents have proceeded on the footing that by occupying and enjoying the property, they derived the right to Mutawalliship. Ex.R.1, Wakf Deed does not support this argument. The records would further show that not only has the family of Zulaika Beevi illegally entered into the possession of the suit property but her son Noordin has created a Wakf under Ex.P.63, Registered Will dated 20.05.1980 in respect of the very same property which is the subject matter of Ex.R.1 in which he has bequeathed the property to his legal heirs to the exclusion of the legal heirs and descendants of the original Wakif. This one act would disentitle the family of the Zulaika Beevi to claim any rights to manage the Wakf property since not only have they flouted the desires of the original Wakif but they have high handedly taken over the entire Wakf property as if the same belonged to them exclusively.
This one act would disentitle the family of the Zulaika Beevi to claim any rights to manage the Wakf property since not only have they flouted the desires of the original Wakif but they have high handedly taken over the entire Wakf property as if the same belonged to them exclusively. In fact, the evidence of the first respondent is that she had become the Mutawalli as per the terms of Ex.P.63. There is no proof on the side of the respondents 1 to 6 to show that they have been conducting the Fatihah and that the income was being divided amongst all the legal heirs of the original Wakif. 17. On the contrary, the records and oral evidence of the first respondent would reveal that the income was being distributed only amongst the children of Noordin Maraicair which is totally in contravention of the recitals of the original Wakf Deed. During the arguments in the above revision, this Court had appointed an Advocate Commissioner who has reported that to an extent of 4,750.2 Sq.ft., the children of first respondent has put up construction and some of which are all two floors RCC roofing and the first respondent is not in possession of any portion thereof. Even the vacant site which is available cannot be utilized to its fullest extent as the access is from the portions which have been constructed upon by the respondents 2 to 6 who have all taken the portion facing the road. It is also the report of the Advocate Commissioner that none of the portions that have been constructed has the approval of the Municipality. It is unfortunate that Commissioner of Municipality, Nagapattinam who had issued orders of demolition in the year 2015 has not followed it upto date. The respondents 1 to 6 have claimed the right to be in possession of the property on the basis of being a beneficiary under the Wakf Deed, Ex.R.1 and the subsequent Will of Noordin Maraicar. They have ignored the specific recitals of the Wakf Deed, Ex.R.1 which only gives them a right to the usufructs from the property and not a right of residence or occupation of the same.
They have ignored the specific recitals of the Wakf Deed, Ex.R.1 which only gives them a right to the usufructs from the property and not a right of residence or occupation of the same. The fact that the Wakif had mentioned that the beneficiaries cannot create any kind of encumbrance on the property clearly indicates that he did not want any one of them to enter into the possession of the property. 18. In the instant case, the respondents 1 to 6 have not established the fact that they have become the Mutawalli as per the procedure contemplated under Ex.R.1, Wakf Deed by an unanimous selection of all the descendants of the late Wakif. Even assuming without admitting that they have the backing of all but however by their subsequent actions in misappropriating and fraudulently dealing with the property of the Wakf and by committing a breach of Trust in relation to the Wakf they have rendered themselves ineligible to become a Mutawalli. The Tribunal below had proceeded on an erroneous assumption that the physical possession of the property gives the person a right to continue as a Mutawalli. 19. In the judgment in Bibi Saddiqa Fatima Vs. Saiyed Mohammad Mahmood Hasan, (1978) 3 SCC 299 , the Honourable Supreme Court has extracted extensively from the Tyabji's Muslim Law and had observed: "15. ............. According to Shia law, the waqf is irrevocable after possession is given to the beneficiaries or the Mutawalli. The settlor divests himself of the ownership of the property and of everything in the nature of usufruct from the moment the waqf is created. In purely metaphorical sense the expression ownership of God is used but unlike Hindu Law, since conception of a personal God is not recognized, there is no ownership of God or no property belongs to God in the jural sense, although the ownership of the property becomes reverted in God as he is originally the owner of all things (vide page 523). The Shia authorities considered the property as transferred to the beneficiaries or to the object of the waqf. Strictly speaking, the ownership of the waqf property has no jural conception with any exactitude. The corpus is tied down and is made inalienable.
The Shia authorities considered the property as transferred to the beneficiaries or to the object of the waqf. Strictly speaking, the ownership of the waqf property has no jural conception with any exactitude. The corpus is tied down and is made inalienable. Only the usufruct and the income from the corpus of the waqf property is available for carrying out the objects of the waqf." In the very same judgment, the Honourable Supreme Court has dealt with the status of Mutawalli in Paragraph No.16 which reads as follows: "16. A Mutawalli is like a Manager rather than a trustee (see page 498). The Mutawalli, so far as the waqf property is concerned, has to see that the beneficiaries got the advantage of usufruct. We have already pointed out that under the Shia law the property does not remain with the waqif. It is transferred to God or to the beneficiaries. At page 554 of Tyabji's famous book it is stated:- The support and maintenance of the waqif's family, etc. would seem under the Act to be deemed a purpose recognized by the Muslim law as religious, pious or charitable: Section 2. This view was put forward by Ameer Ali, J., with great learning in his dissenting judgment in Bikani Mia's case. Section 527 at page No.593 runs thus: The Mutawalli has no ownership, right or estate in the waqf property: in that respect he is not a trustee in the technical sense: he holds the property as a manager for fulfilling the purpose of the waqf." The Honourable Supreme Court had ultimately come down heavily on the Mutawalli in that case stating that since he had transgressed the limits of his power he should not be permitted to gain advantage by such a method. In the instant case also it is seen that the first respondent by styling herself to be the Mutawalli has presumed that she can continue to squat on the property in her capacity as Mutawalli. The respondents 1 to 6 have proceeded on an erroneous presumption that the Mutawalliship and the possession of the property went hand in hand totally contrary to the desires of the Wakif. The Honourable Apex Court in its judgment in Chhedi Lal Misra (Dead) through LRs Vs. Civil Judge, Lucknow & Ors, (2007) 3 SCALE 147 has also dealt with the right of Mutawalli.
The Honourable Apex Court in its judgment in Chhedi Lal Misra (Dead) through LRs Vs. Civil Judge, Lucknow & Ors, (2007) 3 SCALE 147 has also dealt with the right of Mutawalli. The Bench held that once the Wakf is created, the Wakif stands divested of his title to the properties which after the creation of the Wakf vest in the almighty. Therefore, it is clear that once the Wakf is created, then the corpus is vested. The corpus becomes the property of the almighty and cannot be alienated or encumbered. The beneficiaries of the Wakf only have right to enjoy the usufruct and nothing more. 20. The learned Judge has confused the long enjoyment of the property to grant a non-existent right to the respondents 1 to 6. The wishes of the Wakif have been ignored and the respondents 1 to 6 have flouted each and everyone of the recitals of the Wakf Deed. Though an objection was taken regarding the jurisdiction of the Tribunal to try the Original Petition by the petitioners in both the revisions, the Tribunal has not dealt with this issue. The remedy available to an aggrieved party against an order under Section 54(3) of the Act was only by filing a regular Suit to establish their right, title and interest to the suit property as contemplated under Section 54(4) of the Act before the Tribunal and not by way of an Original Petition under Section 83(3) of the Act to the Tribunal. These proceedings are governed by the provisions of the Act as it stood prior to the amendment by Act 27 of 2013 and therefore the remedy that was available to the respondents 1 to 6 was only by way of a Suit and the Wakf Original Petition filed under Section 83(3) of the Act is therefore not maintainable. Further as against the order removing the first respondent from Mutawalliship, the remedy that is available is only an Appeal to the Tribunal under Section 64(4) of the Act and not an Original Application under Section 83(3) of the Act. 21. In view of the above discussions, the order of the learned Subordinate Judge (Wakf Tribunal), Nagapattinam is without jurisdiction and therefore, is liable to be set aside.
21. In view of the above discussions, the order of the learned Subordinate Judge (Wakf Tribunal), Nagapattinam is without jurisdiction and therefore, is liable to be set aside. In the result, these Civil Revision Petitions are allowed and the order passed by the learned Principal Subordinate Judge (Wakf Tribunal), Nagapattinam in W.O.P.No.1 of 2004 dated 11.11.2005 is set aside. The order of the petitioner Board dated 24.05.2007 is confirmed and the respondents 1 to 6 herein are directed to hand over possession of property described in the Commissioner's Report within a period of two months from the date of receipt of a copy of this order failing which the petitioner Board shall immediately thereafter initiate proceedings under Section 55 of the Wakf Act. It is needless to state that meanwhile, it is open to the Wakf Board to approach the Commissioner of Municipality, Nagapattinam to take immediate steps to demolish the unauthorized constructions put up on the property. The respondents 1 to 6 shall pay costs to the petitioner. Consequently, connected Miscellaneous Petitions are closed.