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CASE NO.: Appeal (civil)  4816 of 2000

PETITIONER: CHHEDI LAL MISRA (DEAD) THROUGH LRS

RESPONDENT: CIVIL JUDGE, LUCKNOW &  ORS

DATE OF JUDGMENT: 13/02/2007

BENCH: Tarun Chatterjee & Altamas Kabir

JUDGMENT: J U D G M E N T

ALTAMAS KABIR, J.         This appeal is directed against  the judgment and order  dated 13th October, 1998 passed by the High Court of  Judicature at Allahabad, Lucknow Bench, dismissing the Writ  Petition,  being No. 4272/1983,  filed  by the appellant herein.         The admitted case of the parties is that one Mirza  Mohammed Haider created a  wakf of his entire properties,  including the property in question, in 1926 and appointed his  son Piarey Mirza as the Mutwalli thereof.  The said wakf was  registered under Section 38 of the U.P. Muslim Wakfs Act,  1936, (for short ’the 1936 Act’ ) which is  para materia   with  Section 29 of the  U.P.Muslim Wakfs Act, l960 (for short ’the  1960 Act’).   In view of  Section 5 (1)  of the  1936 Act,  a   notification was  issued in the Uttar Pradesh Gazette  of 23rd  January, 1954 as per the report of the  Commissioner  of  Wakfs, U.P.  The wakf and its properties are duly registered in  the register maintained by the Board of Wakfs.         Subsequently, in 1958, the Wakif  (creator of the wakf)  filed a suit against the Mutwalli for a declaration that the  properties in question did not constitute a wakf.  Significantly,  the Board of Wakfs was not made a party to the suit and the  suit was collusively decreed on compromise.  Immediately  thereafter, the Wakif, namely, Mirza Mohammed Haider, and  his son Piarey Mirza   transferred the disputed plots to the   present appellant by a registered conveyance dated 19th April,  1958.  At that point of time, the said Mirza Mohammed Haider   and his son  Piarey Mirza  were purportedly recorded as  Bhumidars in the revenue record and the plots in question  were recorded as Baghat Kalmi (Mango Groves for Kalmi  varieties of mangoes).  Consolidation proceedings are said to  have taken place in 1962  during which no objections were  raised and  the Wakif,  as also the Mutwalli, transferred the  properties in  question to the appellant and his name was  accordingly recorded in the revenue records.          When the aforesaid facts came  to  the notice  of the  Shia  Central Board of Wakf, Lucknow, it requested the Deputy  Commissioner to issue notice to the appellant  and to direct  him to  hand over possession of the plots in  dispute to the  Secretary of the said Board.  The said Notice dated 18th March,  1973 was received by the appellant on 12th April, 1973 and on  receipt thereof, the appellant filed an appeal in the court of   District Judge, Lucknow, for quashing  the same.  The said  appeal, being Misc. Appeal No.44/1973, was dismissed by the  Civil Judge, Lucknow, by his judgment dated 31st March, 1983  upon holding, inter alia,  that the compromise decree effected    between the Wakif and the Mutwalli was not binding  on the  Board as the Board had not been made a party  to the suit  

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and the suit had been decreed on compromise.  The said  decision of the Civil Judge, Lucknow, was questioned by the  appellant herein by way of   Writ Petition  No. 4272/1983  before the High Court of Judicature at Allahabad (Lucknow  Bench).  The High Court by its judgment impugned herein  considered the matter in great detail, both factually as well as  from the legal stand point, and ultimately  came to  a finding  that since the registration of the wakf in the Register of Wakfs  maintained by the Board,  its notification in the Official  Gazette, the notification  issued under Section 5 of the 1936  Act and the entries made in the Wakf Register maintained  under Section 30 of the 1960 Act,  had not been challenged,  such questions   could not be raised in the appeal preferred  under Section 49 (4) of the   1960 Act.         Assailing the  said judgment of the High Court, learned  counsel, Mr. K.K. Mohan, contended that once the revenue  record stood altered  and the properties in question were  recorded as the secular properties of the appellant and having  further  regard to the decree passed in the suit filed by the  Wakif, the existence of  the  wakf, if any, stood obliterated.   Even though the properties  continued to be  on  the register of  the Board  of Wakfs, they ceased to be wakf properties and the   Deputy Commissioner had no  authority to issue the  impugned notice under Section  49 A  read with Section 57A of  the 1960 Act and the same  was liable to be quashed and the  order of the Allahabad High Court  challenged in this appeal  was liable to be set aside.         Counsel appearing  for the Shia Central Board, on the  other hand, contended that the writ petition  filed by the  appellant herein  had been rightly dismissed upon  a correct  understanding  of the law  relating to the creation of Wakfs.  It  was submitted that the Allahabad High Court had very  correctly  held that after the execution of the Wakf Deed the  properties  in question vested in  the Almighty in perpetuity   and neither the Wakif, Mirza Mohammed Haider, nor the  Mutwalli, Piarey Mirza,  had any authority to transfer the said  properties to the appellant as the Wakif as well as the Mutwalli   ceased to have any right over the property.  It was urged that  the status of Mutwalli is  like that of a  manager appointed to  look after  the wakf properties but not to treat the same as his  personal properties.  The collusive decree between the Wakif  and his son was patently a void transaction and could not be  acted upon in law.         Having gone through and considered the judgment of the  learned Single Judge  of the Allahabad High Court, we see no  reason to take a view different  from those expressed therein.   In our view,  the law relating to the creation and continuation  of  wakfs  has been correctly explained by the learned Judge in   keeping with  the well-established principles  that once  a wakf  is created, the wakif stands divested of his  title to the  properties which after the  creation of the wakf vests in the  Almighty.  It is no doubt true  that in a given case the creation  of  a wakf may be questioned  if it is shown that the wakif had  no intention to create a wakf  but had done so to  avoid a  liability.   But in the instant case, such a   stand is not  available to the Wakif or the Mutwalli  since the  wakf was  created in 1926 and was   registered under Section 38 of the  1936 Act and was also notified in the Official Gazette  in  January 1954.  It was only thereafter in 1958, that is, after  32   years that the Wakif filed a  collusive suit  which was decreed  on  compromise.  The Wakif did not, however, question the  registration of the wakf  under the provisions of the 1936 Act,  nor did he challenge the gazette notification published  in  January, 1954.          Lastly, we do not also find any force in the submission  

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that  since the  revenue records were altered to show the   properties to be the secular properties of the appellant, the  wakf character of the properties had been obliterated.  The law  is well settled that once   a wakf is created  it continues to   retain such character  which cannot be extinguished by any  act of the Mutwalli or  anyone  claiming through him.         The appeal, therefore, fails and is dismissed without any  order as to costs.