THARUMAL AND ANR. versus MASJID HAJUM PHAROSAN VA MADRASSA TALIMUL ISLAM, MIRZA IZSMAIL ROAD, JAIPUR

Citation: [1994] 3 S.C.R. 263 · Decided: 31-03-1994 · Supreme Court of India · Bench: S. MOHAN · Disposal: Dismissed

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Judgment (excerpt)

, ·' 
THARUMAL AND ANR. 
v. 
MASJ!D HAJUM PHAROSAN VA MADRASSA TALIMUL 
ISLAM, MIRZA IZSMAIL ROAD, JAIPUR 
MARCH 31, 1994 
[S. MOHAN AND B.L. HANSARISA, JJ.] 
A 
B 
Transfer of Property Act, 1882: Sections 106, 111(g)(h) and 
114A-Determination and foifeiture of Lease-Absence of clause as to re-
entry in case of breach of payment of rent-Requirement of notice determining C 
tenancy complied with-Held it was determination of lease and not foifeiture 
of lease-Distinction between English Law and Indian Law-Discussed. 
Rajasthan Premises (Control of Rent and Eviction) Act, 1950: Section 
2(3). 
State Government-Wotification-Wakfs-Exemption from the 
provisions of Act-Apph"cability of the provisions of Act to suit land. 
Wakf Act, 1954: Sections 5(2) and 6(4). 
Wa~egistration--Publication of lists-Effect of 
Constitution of India, 1950 : Article 136-Appeal-Raising of fresh 
plea-High Court entertaining fresh plea in second appeaf-Supreme Court 
whether should entertain the plea. 
D 
E 
The respondent filed a suit against the appellant claiming vacant F 
possession as well as arrears of rent pleading (i) that appellants tenancy 
had been determined; and (ii) that the provisions of the Rajasthan 
Premises (Control of Rent and Eviction) Act, 1950 were not applicable to 
the suit property since by a Notification the State Government had ex-
empted all the premises owned by Wakfs registered under the Wakfs Act 
from the operation of the Act. The appellants contested the suit claiming G 
benefits of Section 114-A of the Transfer of Property Act, 1882 on the 
ground that it was a case of forfeiture of tenancy and not determination 
of tenancy. The Trial Court granted relief to the appellants under Section 
114-A but on appeal the First Appellate Court held that it was really a case 
of determination of tenancy and, therefore, the appellants were not entitled H 
263 
264 
SUPREME COURT REPORTS 
[1994] 3 S.C.R 
A 
to the aforesaid benefit. The appellants preferred second appeal before the 
High Court, raisig a fresh plea that the wakf in question being Wakf-alal-
aulad, the benefit of exemption was not available to the respondent. The 
High Court dismissed the appeal. 
B 
In appeal to this Court it was contended on behalf of the appellants 
(1) that they were wrongly debarred from the satutory provisions of Act 
by the courts below inasmuch as to a Wakf-alal-aulad, exemption from the 
Act, permitted by Section 2(3), is not available; (2) that Wakf-alal-aulad 
cannot be said to be either an educational, religious or charitable institute 
and, as such, benefit of the exemption given by the Notification to 
C registered wakfs could not have been taken advantage of by the respondent; 
and (3) that from the notice it would appear that it was the non- payment 
of rent as agreed upon by the appellants was the canse of action for 
issuance of notice and as such requirement of clause (g) of Section 111 of 
Transfer of Property Act was satisfied. 
D 
Dismissing the appeal, this Court 
HELD: 1. The question whether the Wakfis a wakf-alal- aulad being 
essentially a question of fact and there having been even no averment about 
this in the written statement filed by the appellants and no issue on this 
E 
point having, therefore, been framed, it was not open to the appellants to 
take such a stand for the first time before the High Court. The mere fact 
that the High Court has examined this aspect and recorded its finding is 
not enough to require this Court to express its views. The High Court 
might not have as well addressed itself on this question. (268-C-DJ 
F 
2. The wakf at band is a registered wakf, as contemplated by Section 
5(2) of the wakfs Act, 1954. Therefore, the premises at hand were exempted 
from the provisions of the Act. Further, in view of the provisions contained 
in Section 6(4) of the Wakf Act, the list ofWakfs published under Section 
5(2) is final and conclusive unless modified as mentioned in the section, 
G to which effect there is nothing before this Court. (268-E-F) 
H 
Board of Muslim Wakfs v. Radha Krishan, (1979) 2 S.C.C. 468 and 
Fazlul Rabbi Pradhan v. State of West Bengal, (1965) 3 S.C.R. 307, referred 
to. 
3.1. The requirements of forfeiture as mentioned in section lll(g) of 
" 
• 
'
THARUMAL v. MADRASSA TALIMULISLAM [HANSARlA.J.) 
265 
the Transrer or Property Act being not satisfied and the notice as given by A 
the respondent to the appellants having stated about determination or 
tenanacy, the presen

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