LexCHHEDI LAL MISRA (DEAD) THROUGH LRS. versus CIVIL JUDGE, LUCKNOW AND ORS.
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CHHEDI LAL MISRA (DEAD) THROUGH LRS.
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v.
CIVIL JUDGE, LUCKNOW AND ORS.
FEBRUARY 13, 2007
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(T ARUN CHATTERJEE AND AL TAMAS KABIR, JJ.]
Wa/if-{;reation of Wakf-Registered and notified in Official Gazette-
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Jn a collusive suit by Wakif and Mutwalli, compromise decree to the effect
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that property in question did not constitute Wakf-Wakf Board not made
party to the suit-Transfer of the property by Wakif and Mutwalli-Notice to
the transferee of the property to hand over possession of the same to the Wakf
Board-Notice upheld by courts below-On appeal, held: Notice directing
handing over the property to Board justified-Once Wakf is created it
continues to retain such character which cannot be extinguished by the act
D of Mutwalli or anyone claiming through him-Ufi./Muslim Wakfs Act, 1936-
Section 38-UP. Muslim Wakfs Act, 1960-Section 49-A r/w Section 57 A.
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In the year 1926 a Wakf was created. Son of the Wakifwas appointed
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as Mutwalli thereof. The Wakfwas registered under Section 38 ofU.P. Muslim
Wakfs Act, 1936 which is para materia with Section 29 ofU.P.Muslim Wakfs
E Act, 1960; It was notified in Official Gazette in 1954. The Wakf and its
properties were duly registered in the register maintained by the Board of
Wakfs. In 1958 Wakif filed a suit against the Multwalli for a declaration that
the properties in question did not constitute a Wakf. Board of Wakf was not
made party to the suit. The suit was collusiveiy decreed.on compromise.
F Thereafter Wakif and the Mutwalli transferred the property to the appellant.
Name of the appellant was recorded in the revenue records. When the matter
come to notice ofWakfBoard, it requested the Deputy Commissioner to issue
notice to the appellant directing him to hand over the possession of the
properties in dispute to the Wakf Board. Notice was issued accordingly.
Appellant questioned the notice in appeal and the same was dismissed by
G District Judge. This was challenged in Writ Petition. High Court dismissed
the Writ Petition. Hence the present appeal.
A.,
Dismissing the appeal, the Court
HELD: Once a Wakf is created, the Wakif stands divested of his title to
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CHHEDI LAL MISRA (DEAD) THROUGH LRS. "· CIVILJUDGE, LUCKNOW (AL TAMAS KABIR. J] 569
the properties which after the creation of the Wakf vests in the Almighty. It A
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 ofU.P. Muslim Wakfs Act, 1936 and was also notified in B
the Official Gazette in 1954. It was only thereafter in 1958, i.e. 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
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provisions of the 1936 Act, nor did he challenge the gazette notification
published in January, 1954. It also cannot be said that since.the revenue
records were altered to show the properties to be the secular properties of C
the appellant, the Wakf character of the properties had been obliterated. The
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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. !Paras 7 and 8) 1571-F, G, H; 572-A, BJ
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4816 of2000.
From the final Judgment and Order Dated 13. 10. 1998 of the High Court
of Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No.
4272 of 1983.
K.K. Mohan and Geetanjali Mohan for the Appellants.
Malvika Trivedi and Prashant Kumar for the Respondents.
The Judgment of the Court was delivered by
AL TAMAS KABIR, J. 1. 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.
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2. The admitted case of the parties is that one Mirza Mohammed Haider G
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
wakfwas registered under Section 38 of the U.P. Muslim Wakfs Act, 1936, (for
short 'the 1936 Act'Excerpt shown. Read the full judgment & AI analysis in Lexace.