KIRAN DEVI versus THE BIHAR STATE SUNNI WAKF BOARD & ORS.

Citation: [2021] 7 S.C.R. 86 · Decided: 05-04-2021 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 7 S.C.R.
KIRAN DEVI
v.
THE BIHAR STATE SUNNI WAKF BOARD & ORS.
(Civil Appeal No. 6149 of 2015)
APRIL 05, 2021
[ASHOK BHUSHAN, S. ABDUL NAZEER AND
HEMANT GUPTA, JJ.]
Hindu Law: Hindu joint family property – Presumption of –
Held: There can be presumption of Hindu joint family property if
the property has been acquired by the male member or if the same
has been treated as joint Hindu family – However, no such
presumption is attached to a business activity carried out by an
individual in a tenanted premise – Even if a male member had taken
premises on rent, he is tenant in his individual capacity and not as
Karta of Hindu Undivided Family in the absence of any evidence
that Karta was doing the business for and on behalf of Joint Hindu
Family – Hindu Joint Hindu Family cannot be presumed to be in
existence only on the basis of Ration Card and payment of rent
unless there is evidence that the funds of joint Hindu Family were
invested in the business in the tenanted premises – On facts, High
Court held that the payment of rent or the Ration Card proves that
the tenant was carrying business as a Joint Hindu Family Business,
and also rejected the surrender of tenancy – Facts would show that
it was the contract of tenancy which was inherited by the grandfather
of the plaintiff who later surrendered it in favour of the Wakf Board
– Even if the great grandfather was maintaining the family out of
the income generated from the hotel business, that itself would not
make the other family members as coparceners in the hotel business
– Tenancy was an individual right vested with the grandfather of
the plaintiff who was competent to surrender it to the landlord –
Thus, the order by the High Court that the tenant in the premises
was representing a joint Hindu family and that the Karta was not
competent to surrender the legacy rights in favour of Wakf Board
and consequently the induction of the appellant as a tenant by the
Wakf Board was illegal and thus, issuance of direction to dispossess
the appellant from the suit premises and to handover the vacant
possession to the plaintiff, is not sustainable and set aside, and that
[2021] 7 S.C.R. 86
86
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of the Wakf Tribunal is restored – Wakf Act, 1995 – ss. 85, 85A,
83(9).
Constitution of India: Arts. 226 and 227 – Writ petition –
Petition u/Art. 227 filed against an order of the Wakf Tribunal before
the High Court – Petition titled as writ petition – Jurisdiction of
High Court – Held: Nomenclature of the title of the petition filed
before the High Court is immaterial – It is wholly immaterial that it is
titled as a writ petition – Petition styled as one u/Art. 226 would not
bar the High Court to exercise jurisdiction under the Act and/or u/
Art. 227 – In certain High Courts, petition u/Art. 227 is titled as writ
petition and in certain other High Courts as revision petition or as
miscellaneous petition – On facts, keeping in view the nature of the
order passed in the light of proviso to sub-section (9) of s. 83 of the
Act, the High Court exercised jurisdiction only under the Act, which
was restricted to only examine the correctness, legality or propriety
of the findings recorded by the Wakf Tribunal – Wakf Act, 1995 –
ss. 85, 85A, 83(9).
Allowing the appeal, the Court
HELD: 1.1 The plaintiff had invoked the jurisdiction of the
Civil Court in the year 1996. It is the Wakf Board and the appellant
who then filed an application for transfer of the suit to the Wakf
Tribunal. Though, in terms of Ramesh Gobindram’s case, the Wakf
Tribunal could not grant declaration as claimed by the plaintiff,
but such objection cannot be permitted to be raised either by the
Wakf Board or by the appellant as the order was passed by the
Civil Court at their instance and was also upheld by the High
Court. Such order has thus, attained finality inter-parties. The
parties cannot be permitted to approbate and reprobate in the
same breath. The order that the Wakf Tribunal has the jurisdiction
cannot be permitted to be disputed as the parties had accepted
the order of the civil court and went to trial before the Tribunal. It
is not a situation where plaintiff has invoked the jurisdiction of
the Wakf Tribunal. [Para 13][97-F-H; 98A-B]
1.2 It is not conferment of jurisdiction by the plaintiff
voluntarily but by virtue of a judicial order which has now attained
finality between parties. The suit was accordingly decided by the
KIRAN DEVI v. THE BIHAR STATE SUN

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