LexTAMIL NADU WAKF BOARD versus HATHIJA AMMAL (DEAD) BY LRS. ETC. ETC.
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A TAMIL NADU WAKF BOARD V. HATHJJA AMMAL (DEAD) BY LRS. ETC. ETC. AUGUST 31, 2001 B [S. RAJENDRA BABU AND S.N. VARIA VA, JJ.] Wakf Act, 1954 : S. 5(2) and 27-Pub/ic Wakf-Property not included in Notification C published under s.5(2)-Nor Wakf Board followed procedure laid down in s.27-Wakf Board filing suit for recovery of possession-Held, Wakf Board had no right to file such a suit-If Wakf Board has reason to believe that a particular property is a Wakf property, it can itself collect information and decide whether the property is a Wakf property or not and such decision of D Wakf Board shall be final unless reviewed or modified by civil court-It is only thereafter that suit for possession could have been filed by Wakf Board. The appellant-Wakf Board filed suits for recovery of possession of suit property on the ground that one 'KM' had dedicated under a registered deed the suit property for several charities named in the deed; that the founder E appointed himself as Muthawalli and thereafter nominated his son and after him the head of his family to manage the properties and utilize its income <':ily for charitable and religious purpose; that the deed also put restraint against alienation or transfer of the properties dedicated in favour of Thaikkal. The defendants contended, inter alia, that suit property was not covered by F the notification issued by the Wakf Board under section 5(2) of the Wakf Act, 1954; that the suit property had been sold to the purchaser in revenue auction and as such the character of the suit property had changed. The trial court held that the suit property was a public wakf, but the notification under section 5(2) of the Act did not include the suit property and, therefore, the Wakf Board could not recover possession of the same. The appeals filed by the Wakf G Board were dismissed by the first appellate court and second appeals were dismissed by the High Court. Aggrieved, the Wakf Board filed the present appeals. H Dismissing the appeals, the Court HELD : l. The High Court has rightly held that in view of the scheme 428 ... TAMIL NADU WAKF BOARD v. HATHIJA AMMAL [RAJENDRA BABU, J.] 429 of the Wakf Act, 1954, the Wakf Board had no right to institute a suit for A declaration that any property is a wakf property. A finding of fact has been recorded by the trial court and affirmed in appeal that the suit properties are not included in the notification published under section 5(2) of the Act, and therefore, steps should have been taken as provided under section 27 of the Act. It is only thereafter tha( a suit for possession could have been filed B by the appellant. (431-E; 432-A, B] 2. In the evert any property has been omitted, by inadvertence or otherwise, then it is for the Wakf Board to take action as provided under section 27 of the Act. If the WakfBoard has reason to believe that a particular property is a wakf property then it can itself collect information and if any C question arises whether a particular property is a wakf property or not it may, after making such enquiry as it may deem fit, decide the question and such decision of the Wakf Board shall be final unless revoked or modified by a Civil Court. Such action has not been taken by the Wakf Board in this case. (431-C, DI Sayyed Ali and Ors. v. A.P. Wakf Board, Hyderabad and Ors., (1998) 2 sec 642, referred to. CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 9768- 9776 of 1995. From the Judgment and Order dated 19.8.88 of the Madras High Court in S.A. Nos. 447, 448, 449, 450, 451, 1820, 1822 and 1823of1981. Ms. Shobha and S.K. Mehta for the Appellant. The Judgment of the Court was delivered by RAJENDRA BABU, J. The appellant brought nine suits on the basis that one Kallakattu Bava Sahib Marcayar had dedicated under a registered deed the suit properties for several charities named in the deed; that the founder had constituted himself as the Muthawalli and thereafter appointed D E F his son Dawood, Batch Mohideen and after him the Manager (heads) in his G family to manage the properties and utilise its income only for charitable and religious purpose and not for personal benefit; that the deed also put restraint against alienation or transfer or otherwise of the properties dedicated in favour of Thaikkal by the defendants of the founder; that Batch Mohidcen died in the year 1935 leaving behind two sons and three daughters, who iJartitioned H 430 SUPREME C
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