Mohd. Umar Ansari v. U. P. Sunni Central Waqf Board
2019-08-20
ANJANI KUMAR MISHRA
body2019
DigiLaw.ai
JUDGMENT : Anjani Kumar Mishra, J. 1. Heard Shri Zafar M. Naiyer, learned Senior Advocate for the revisionist and Shri Sheikh Moazzam Inam for the opposite party. 2. The instant revision is directed against the order of the Waqf Tribunal, dated 15.6.2018, on a reference filed by the contesting opposite party. 3. The dispute in the revision pertains to Waqf No. 143-A Waqf Seth Hussain Bux, Kanpur. 4. The reference itself was filed challenging the order dated 13.9.2017 and the consequential office memorandum dated 15.9.2017, whereby the revisionist and the opposite party No. 4 in this revision were appointed as Mutwalli of one house apiece, out of two houses which were Waqf property. 5. The reference was filed by the respondent No. 4, Mohd. Aslam on the ground that he had been appointed as Mutwalli of the Waqf in question vide order dated 21.6.2016. It was also stated that he was working as Mutwalli during the lifetime of the erstwhile Mutwalli, his mother, Munni Begum and that all the beneficiaries of this Waqf alal-aulad had consented to his appointment as Mutwalli. He was also looking after the affairs of the Waqf on the basis of a power of attorney executed by his mother during her lifetime. The order dated 13.9.2017 had been passed by the Waqf Board without any order of removal of the plaintiff having been passed, despite his appointment as Mutwalli on 21.6.2016. 6. The Waqf Tribunal, finding that the opposite party had been appointed as Mutwalli vide order dated 21.6.2016 passed by the Waqf Board and that without there being any complaint from any quarter and merely on an application filed by the revisionist, the Waqf property has been bifurcated into two and both the contesting parties appointed Mutwalli of one portion each, namely one house each. This could not have been done without resorting to proceedings under section 64 of the Waqf Act for removal of the duly appointed Mutwalli. 7. Accordingly, the order has been set aside, in effect, upholding the appointment of the opposite party as Mutwalli vide order dated 21.6.2016. 8. The contention of Counsel for the revisionist is that he being the eldest pious and male descendent of the Waqif, was liable to be appointed Mutwalli. It was also submitted that he had been litigating on behalf of erstwhile Mutwalli.
8. The contention of Counsel for the revisionist is that he being the eldest pious and male descendent of the Waqif, was liable to be appointed Mutwalli. It was also submitted that he had been litigating on behalf of erstwhile Mutwalli. He had paid the municipal taxes and had undertaken repairs of the waqf property, but these aspects have not been considered by the Waqf Tribunal. 9. It has also been contended that the erstwhile Mutwalli, mother of the opposite party Munni Begum had in writing nominated the revisionist as the Mutwalli after her. A bunch of other grounds have been raised in the memo of revision but they do not appear to be worth consideration. 10. Counsel appearing for the opposite party has supported the impugned order. 11. Upon a consideration of the submissions made by Counsel for the parties and upon a perusal of the record, this Court consider it necessary to observe that the Tribunal has recorded a categorical finding that since there was no male descendent of the Waqif, the Tauliyat devolved upon a female Munni Begum, the mother of the parties. It is also categorically observed that the waqf deed does not state that it shall be the eldest male heir of a female Mutwalli, who shall be the next Mutwalli. 12. One of the grounds taken to assail the impugned order is that the revisionist is the eldest sons of the erstwhile Mutwalli, Munni Begum. 13. However, since the Waqf Deed does not specify that the eldest male member of a female shall be the Mutwalli, this assertion of revisionist is without substance. 14. It would not be disputed before this Court that the Waqf Board had vide order dated 21.6.2016 appointed the plaintiff-opposite party as the Mutwalli of the Waqf in question. It could also not be demonstrated that the plaintiff-respondent was ever removed from the post of Mutwalli in accordance with the procedure prescribed under section 64 of the Waqf Act. 15. On the contrary the Waqf Tribunal has observed that there was no complaint against the Mutwalli, appointed vide order dated 21.6.2016 and on a mere application of the revisionist for being appointed as Mutwalli, the Waqf Board, bifurcated the Waqf into two and appointed both claimants as Mutwalli of one portion, each. 16.
15. On the contrary the Waqf Tribunal has observed that there was no complaint against the Mutwalli, appointed vide order dated 21.6.2016 and on a mere application of the revisionist for being appointed as Mutwalli, the Waqf Board, bifurcated the Waqf into two and appointed both claimants as Mutwalli of one portion, each. 16. Upon a perusal of the waqf deed itself, no provision is found to exist therein providing for a division or bifurcation of the Waqf property. 17. Under the circumstances, the order dated 13.9.2017 appointing the revisionist and the opposite party Mutwallis of one house each, which constructed the Waqf property, was contrary to the deed itself and could not have been passed. For the same reason, the Tribunal was perfectly justified in setting aside the order dated 13.9.2017. 18. The contention that no proceedings were taken for removal of the revisionist from the post of Mutwalli as he had been so appointed vide order dated 13.9.2017 passed by the Waqf Board, is without merit. The order had been subjected to challenge before the Waqf Tribunal, which has found it to be an illegal order, for the reasons given therein, which reasons as already observed herein above, are found to be perfectly justified. 19. The stipulation in the waqf deed for the eldest male member to be the Mutwalli is only for the male line of descendents of the Waqif. The waqf deed also stipulated that in case the male line of descendents became extinct. However, the waqf deed does not specify that the eldest son of Munni Begum would be the next Mutwalli. 20. Therefore, the contention of Counsel for the revisionist that the revisionist being the eldest son of Munni Begum was liable to be appointed is not specifically provided in the waqf deed. The waqf deed has to be construed strictly and the Courts cannot read something into it, which is not mentioned therein. 21. In view of the foregoing discussion, I do not find any illegality in the reasoning given by the Waqf Tribunal. For the same reason, the order impugned is found to be perfectly justified and not worthy of interference. 22. Accordingly, the revision is found to be without merit and is dismissed.