SABIR ALI KHAN versus SYED MOHD. AHMAD ALI KHAN AND OTHERS

Citation: [2023] 6 S.C.R. 930 · Decided: 13-04-2023 · Supreme Court of India · Bench: K.M. JOSEPH · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 6 S.C.R.
SABIR ALI KHAN
v.
SYED MOHD. AHMAD ALI KHAN AND OTHERS
(Civil Appeal Nos. 7086-7087 of 2009)
APRIL 13, 2023
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Waqf Act, 1995:
Wakf properties, of parties who are Shia Muslims –
Beneficiaries and their rights – Beneficiaries perfecting title by
adverse possession – Permissibility of – Held: A beneficiary of a
waqf, being neither a trustee nor a co-owner of waqf property, can
acquire title through adverse possession even if it is the property of
the waqf – There cannot be any embargo against a beneficiary of a
waqf claiming acquisition of title by adverse possession – Beneficiary
of a waqf cannot be described as a stranger to the waqf – No doubt,
a beneficiary is not to be conflated in his position with a Mutawalli,
who is a manager of the waqf – Property of the waqf, in law vests
in the almighty – For the purposes of s. 10 of the Limitation Act, he
is treated as a trustee – Beneficiary would be entitled to receive
benefits in terms of the waqf deed – In the case of adverse possession,
since a requirement is that the possession must be hostile to the real
owner and since the real owner is the almighty, the requirement
would be that such a person must have the necessary animus to
hold contrary to the title of God – In the case of a co-owner while
mere assertion of title in himself may hardly suffice as the possession
of a co- owner is taken to be possession on behalf of all co-owners
a case of ouster being successfully established would entitle the
co-owner to succeed – Beneficiary of a waqf is endowed with rights
in terms of the waqf deed – No duty is culled out, as such, to protect
the interest of another.
ss. 52(2) and 107 – Recovery of wakf property transferred in
contravention of s. 51 – Waqf created by one shia muslim, by a
deed in the year 1934 – Original Waqif had three sons – Eldest son-
QA became mutawalli on death of his father – However, his younger
brothers got their names mutated as bhumidars in revenue records
[2023] 6 S.C.R. 930
930
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for the said property – Suit filed by the eldest son seeking declaration
that it was a waqf property and sought relief of expunging the names
of his two brothers – During the pendency of suit, one of the brother
of QA, sold his one- third share to one of his nephew, referred as
first sale – Though said suit decreed in favour of the plaintiff, it
abated in view of the consolidation proceedings – First sale was
held to be infirm – Thereafter, in 1974, compromise entered between
the three brothers and they purported to disown the waqf – Based
on the compromise, second sale made by QA in favour of his other
nephew – Challenged to, by QA’s son in a writ petition – In 1988,
QA resigned as mutawali – Case of the appellant-son of the
transferor that QA’s son became the mutawali – Writ petition
withdrawn – Complaint filed before the U.P. Shia Waqf Board by
QA’s other son challenging the transfer of waqf property by his
father and uncle, as also the compromise – Controller of waqf Board
by invoking s. 52(1) directed the Collector to recover and deliver
possession of the disputed land from the unauthorized occupants,
nephew of QA-first respondents – Collector directed the respondents
to deliver possession of the property to the Board within 30 days –
First respondents challenged the same and the appeals were allowed
by the ADJ – However, the High Court set aside the writ petition
holding that the ADJ did not possess jurisdiction – In appeal, the
waqf tribunal held that the respondents had acquired title by adverse
possession and set aside the order of the Collector – Said order
upheld by the High Court – However, the revision petitions dismissed
– On appeal, held: Beneficiary of a waqf, being neither a trustee
nor a co-owner of waqf property, acquired title through adverse
possession even if it was the property of the waqf – High Court
rightly held that the father created a valid and effective waqf as
required of a Shia Muslim and after his death, his eldest son took
over as Mutawali – ss. 49A and 49B came to be inserted by Act 28
of 1971 and the second sale took place in 1974, which is after the
insertion of ss. 49A and 49B in the 1960 Act, thus, the power, vested
with the Board to take action for recovery of possession u/s. 49B –
Thus, the sale deed of the year 1974 by eldest son in favour of his
nephew, being in the teeth of the prohibition against a sale without
the pre

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