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CASE NO.: Appeal (civil)  1559 of 2007

PETITIONER: Tamil Nadu Wakf Board

RESPONDENT: Larabsha Darga Panruti

DATE OF JUDGMENT: 23/11/2007

BENCH: Tarun Chatterjee & P. Sathasivam

JUDGMENT: JUDGMENT

P. Sathasivam, J.

1)      This appeal is preferred by the Tamil Nadu Wakf Board  represented by its Chief Executive Officer, Chennai against the  final judgment dated 25.6.2004 and decree dated 28.6.2004  passed by the High Court of Madras in Second Appeal No. 641  of 1996 whereby a learned Judge of the High Court allowed  the second appeal reversing the judgment and decree of the  first appellate Court and restoring the judgment and decree of  the trial Court. 2)      The facts which are necessary for the disposal of this  appeal are as follows: Originally the suit property was Wakf property being a part of  a Wakf property belonging to one Noor Mohammedsha Aulia  Darga.  One Bahadursha, the 5th Janishan of Noor  Mohammad Shah Khadari Darga, Panruti conveyed the suit  property to his disciple Shabansha and he was in possession  and enjoyment of the same through his disciple Larabsha.   Larabsha conveyed the suit property to his wife Khathija Bi by  way of a Hibba with the intention of doing certain pious,  religious and charitable purposes.  Khathija Bi conveyed the  suit property to her grandson Syed Umar.  After the death of  Syed Umar, his wife Safia Bi was managing the suit property  and was performing the said pious, religious and charitable  purposes.  In 1978, Safia Bi filed O.S. No. 189 of 1978 in the  sub-Court, Cuddalore for declaration that the suit property is  not wakf property and it is their private property. The said suit  was dismissed holding that the suit property is wakf property  belonging to Larabsha Darga.   Against the said order, Safia Bi  filed an appeal being A.S. No. 108 of 1980 in the District  Court, Cuddalore and the same was dismissed on 22.4.1983.   Aggrieved by that judgment and order, Safia Bi filed a second  appeal being S.A. No. 1104 of 1983 in the High Court.  In the  meanwhile, on 8.8.1985, Safia Bi died and Adbarbasha and  Abdulsalam were impleaded collusively and fraudulently.   Heeralal and Khaleel Basha filed a petition in A.No. 20 of 1985  before the Tamil Nadu Wakf Board, Madras to recognize and  appoint them as hereditary Muthavllis to Larabsha Darga and  its properties and the Wakf Board after holding enquiry  appointed the respondents herein-plaintiffs as joint  Muthavallis recognizing their right to be hereditary trustees  and legal representatives of late Larabsha. The High Court on  10.1.1990 dismissed the second appeal holding that the suit  property is wakf property and not a private trust property.  Against the said dismissal, S.L.P. (c) No. 2486 of 1990 was  filed by the respondents herein/plaintiffs before this Court  and the same was dismissed.  Respondents herein filed O.S.

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No. 20 of 1992 in the sub-Court, Cuddalore for a declaration  that the suit Darga and its property belongs to a wakf i.e.,  Wakf-alal-aulad, and the Wakf Board had no jurisdiction to  appoint Muthavllis for the said Darga and for injunction  restraining the Wakf Board from interfering with the suit  Darga and its property except claiming contribution from the  net income of the wakf.  The trial Court decreed the suit  holding that the suit Darga and its property belong to a private  wakf.  Aggrieved by the said order, Tamil Nadu Wakf Board  filed an appeal being A.S. No. 206 of 1994 in the District  Court, Cuddalore and the same was allowed holding that the  suit Darga and its property do not belong to a private wakf.   Against that order, the respondents herein filed a second  appeal being S.A. No. 641 of 1996 in the High Court.  The  High Court allowed the second appeal reversing the judgment  of the first appellate Court and restoring the judgment of the  trial Court.  Hence the present appeal is filed by the Tamil  Nadu Wakf Board by way of special leave petition before this  Court. 3)      Heard Mr. J.M. Khanna, learned counsel appearing for  the appellant and Mr. P.S. Misra and Mr. K. Samidurai,  learned senior counsel appearing for the respondents. 4)      Mr. J.M. Khanna, learned counsel for the appellant-Tamil  Nadu Wakf Board mainly contended that in view of the  decision in the earlier proceedings filed by Safia Bi and the  ultimate decision in Second Appeal No. 1104 of 1983 which  was affirmed by this Court, the subsequent proceedings in  respect of the same issue/property cannot be proceeded with  and hit by the principle of res judicata.  On the other hand Mr.  P.S. Misra, learned senior counsel for the respondents after  taking us through the earlier as well as the present  proceedings submitted that the decision rendered therein has  no bearing to the issue raised in the subsequent proceedings.   He also contended that in view of Ex.A-22 (proforma report)  and other materials, the conditions/objects therein, the  plaintiff had proved their case that the suit property belongs to  Wakf-alal-aulad and the trial Court rightly decreed the suit  though the lower appellate court wrongly concluded as it  belongs to Wakf property and the High Court allowed the  appeal and restored the decree of the trial Court.   5)      In order to understand the dispute raised, it is relevant to  refer the geneology of the family of late Larabsha referred to in  the plaint in O.S. 20 of 1992 on the file of the subordinate  Judge, Cuddalore.            LARABSHA (HUSBAND) DIED      Kathija Bi (Wife) (Died)      |      |      Syed Magdoom (Son)      (died)      |                  |                       |                       |      |                  |                       |                       | ______________________________          |                       |         |                       |      |          Safia Bi         |               (died on 8.8.1985)         |               Issueless _______________________         |                       |         |                       | Sainath         Syed Ali         Hi                      (died) _________               __________ |                               |

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|                               | (Son)                    (Son) Khaleel Basha   Heeralal (2nd Plaintiff) (1st Plaintiff)

The plaintiffs therein prayed for a decree declaring that  Larabsha Dharga and its properties described in the schedule  appended in the plaint are a private Wakf/Wakf-alal-aulad.   They also prayed for declaration that Hiralal and Kalilal Basha  (plaintiffs) are the hereditary trustees of Larabsha Dharga and  also prayed for permanent injunction.  The learned trial Judge  after considering the relevant materials both oral and  documentary particularly on the basis of Ex. A1 and A2  granted decree as prayed for in favour of the plaintiffs.  In the  appeal, namely, A.S. 206 on the file of District Court,  Cuddalore filed by Tamil Nadu Wakf Board, the appellate  Judge basing reliance on earlier judgment of the High Court in  Second Appeal No. 1104 of 1983 (Ex. A3) accepted the stand of  the Wakf Board and concluded that the suit property is a Wakf  property and not private Wakf-alal-aulad as claimed by the  plaintiffs.  The said decision was taken up to the High Court  by way of Second Appeal No. 641 of 1996 by the plaintiffs.   The High Court framed the following substantial question of  law:- \023Whether the lower appellate court had failed to consider absence  of specific plea of denial in the written statement that the said  Dharga is not a private Wakf\024          Based on the same, heard the argument on either side and  finally by the impugned judgment allowed the appeal and  restored the decree of the trial Court.  In the light of the  controversy between the parties by way of suits, first appeals  and second appeals, we verified the reliefs prayed in the earlier  proceedings, stand taken by both the parties and ultimate  decision including the one taken by the High Court in second  appeal No. 1104 of 1983.  6)      Section 3 (l) of the Wakf Act, 1954 defines \023wakf\024 as  under: (l) \023wakf\024 means the permanent dedication by a person  professing Islam or any other person of any movable or  immovable property for any purpose recognized by the  Muslim law as pious, religious or charitable and includes-

(i)     a wakf by user but such wakf shall not cease to be a  wakf by reason only of the user having ceased  irrespective of the period of such cesser; (ii)    grants including mashrut-ul-khidmat, muafies,  khairati, qazi services, madadmash for any purpose  recognized by the Muslim law as pious, religious or  charitable; and        (iii)     a wakf-alal-aulad;              and \023wakif\024 means any person making such dedication;               Provided that in the case of a dedication by a person  not professing Islam, the Wakf shall be void if, on the death  of such person, any objection to such dedication is raised by  one or more of his legal representatives;\024

The plaintiffs claim that the suit property belongs to private  Wakf, Wakf-alal-aulad and it is not a public Wakf.  On the  other hand, it is the specific stand of the Wakf Board the same  is a public Wakf.  As said earlier, the High Court heavily relied  on Ex.A-22 which is a proforma maintained by the Wakf  Board.  The learned Judge has extracted all the details/entries

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made in the proforma.  Those details are available in the High  Court\022s judgment and we perused the same.  It mentions that  the object of the Wakf is for the support of feeding the fakirs  and lighting the tomb of Larabsha and to do fateah.  It further  shows that these services are to be rendered without  alienating the properties.  Name of the beneficiaries are noted  as \023Mrs. Safia Bi, wife of Syed Umar, Larabsha Dharga.\024  In  column-9, the rule of succession, it is stated that \023hereditary  as per T.D.\024  It further shows that out of the income derived  from the suit property, a portion of the same is meant for  pious, religious and charitable purposes and remaining was  used for the maintenance of the family.  Column-17 of the  remarks states that originally R.S.No.24, 205 acres dry belong  to Nur Mohammed Dargah, Panruti.  One Inayath Shah a  sixth successor Jainishin conveyed this land containing  houses and shops to one of his disciples shabansha by means  of settlement (\021Hibba\022) in 1939.  This Shanbans, in his turn  made a settlement in favour of Larabsha who is the paternal  grand father of the Husband of Safia Bi, who is now enjoying  the lands.  No accounts are maintained.  Only Fateah is done  on every Thursday evening and the tomb is lighted daily.  At  present Safia Bi is the Muthavalli.  A few rupees are spent for  the Dargah and the balance is utilized for the maintenance of  the family.  The above details furnished in the proforma clearly  reveal that succession to the office of Muthavallis is by  hereditary and the income has got to be spent for pious,  religious and charitable purposes and a portion was also used  for management of the family.   7)      As rightly observed by the High Court, inasmuch as a  portion of the income is to be spent for the family apart from  pious, religious and charitable purposes, it satisfies the  character of a private Wakf i.e. Wakf-alal-aulad.  The said  document i.e. Ex.A-22 also supports the claim of the plaintiffs  that they are the hereditary Muthavallis of the private Wakf.   These aspects have been fully considered and rightly  concluded by the trial Judge as well as the High Court.  On  the other hand, as rightly pointed out by learned senior  counsel for the respondents/plaintiffs, the lower appellate  Court on mis-construing the decision in S.A. No.1104 of 1983  wrongly allowed the appeal.  As observed earlier, in second  Appeal No. 1104 of 1983, the High Court had no occasion to  consider whether it is a private Wakf or a public Wakf, but, on  the other hand, in the earlier suit, the plaintiffs claimed the  suit property as their private property and not as private Wakf  property and only in the said circumstance the High Court in  Second Appeal No. 1104 of 1983 rendered the finding that the  suit property is a Wakf property and it is not a private trust  property.  Inasmuch as in appreciation of acceptable material,  the trial Court as well as the High Court arrived at a  conclusion that the suit property is a private Wakf and not a  private property, we are in agreement with the conclusion of  the High Court that the decision in S.A. 1104 of 1983 has no  bearing to the issue in the latter proceeding.  The High Court  has also rightly concluded from Ex.A1 that there is no  indication that the Wakf is a public Wakf and Hibba only  indicates that certain things have got to be carried out in  respect of pious, religious and charitable purpose and  proforma Ex.A22 supports the claim of the plaintiffs.  Looking  at any angle, in the light of the materials placed particularly  additional documents Ex.A22, A23 and A24 which were  received on the basis of an application which was ordered on  20.04.2004, we are in entire agreement with the conclusion  arrived by the High Court and do not find any valid ground for  interference.  8)      In the light of the above discussion, the appeal fails and

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the same is dismissed. No costs.