WALI MOHAMMED KHAN (DEAD) BY LRS. versus RAHMAT BEE AND ORS.

Citation: [1999] 1 S.C.R. 852 · Decided: 23-02-1999 · Supreme Court of India · Bench: M. JAGANNADHA RAO · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
WALi MOHAMMED KHAN (DEAD) BY LRS. 
v. 
RAHMAT BEE AND ORS. 
FEBRUARY 23, 1999 
[M. JAGANNADHA RAO AND M.B. SHAH, JJ.] 
Muslim Law : 
Wakf-Wakf property-Comprised of graveyard and tombs-R's father 
C was pennitted to construct a house in the graveyard for the purpose of 
conducting Fateha at the tombs in the compound and to provide the Fakirs 
who gathered there with hucca tobacco-Pem1issio11 deed conferred similar 
1ights, and imposed similar obligations, on R's progeny-Held: Such pennis-
sio11 created a Wakf of a public nature in the house so constructed-There[ ore, 
R's father and R were in the position of mutawallis and cannot peifect title 
D 
E 
to the said hous:_ by adverse possession. 
Wakf-,--()bjects of-Directions issued for performing Fateha at 
graveyard and to use the house pennitted to be constructed there for that 
purpose-Held : Such directions are valid objects of a Wakf. 
Wakf-Wakf property-Adverse title tc;-Setting up of-By mutawal-
li--Held : A mutawalli is prohibited from setting up an adverse title to the 
Wakf property unlike a stranger-Limitation Act, 1963, Arts. 64 and 65. 
Wakf-Wakf property-Accretion to-Clzaracter of-Wakf property 
F comprised of graveyard and tombs-House constructed in graveyard for 
religious purposes-Held : Such house became an accretion to the Wakf 
property and, there[ ore, bore the same character as the other prope1ties in that 
compound. 
Wakf-Wakf property-Comprised of graveyard and tombs-Suit for 
G possession-From donee of deemed trnstees-R's father was pennitted to 
constrnct a house in the graveyard for conducting Fateha in the tombs and 
for providing hucca tobacco to the Fakirs who gathered there-Subsequently, 
R's father gifted the house to R-Mutawalli of the graveyard and tombs filed 
a suit against R for possession of the house-Period of limitation-Ap-
H plicability of-Held, R's father is deemed trustee of the Wakf property and R 
852 
" ' 
WALIMOHAMMEDv. RAHMATBEE 
853 
is a donee and not a transferee for valuable consideration-Hence, no period A 
of limitation is applicable to such a suit-Limitation Act, 1963, S. IO Expln. 
Code of Civil Procedure, 1908 : Section I J. 
Res judicata-Earlier suit-Fi11dings in-Operate as Res judicata-R 
filed a suit against W for declaration of his right to manage and possess the 
graveyard and Dargah-Trial coun dismissed the suit by holding that the suit 
propeny was Wakf propeny, that the graveyard, Dargah and a house co11-
structed 011 the suit property were under the management of W and that the 
house was bei11g use as a musafirkha11a-Appeals filed by R were dis-
missed-Subsequently, Was mutawalli and person-in-charge of the same suit 
property filed a suit against R for possession-Held: Under these circumstan-
ces, findings of trial cowt in the earlier suit operate as res judicata in the 
subsequent suit-Hence, in the subsequent suit R ca11not be pennitted to prove 
his title to the said house on the basis of the gift deed registered before filing 
of the earlier suit. 
Constructive res judicata-Adverse possession-Plea of-Not raised in 
earlier suit-Held : Such a plea cannot be raised as a defence in subsequent 
suit since it b01red by constructive res judicata. 
Constitution of India, 1950 : 
Panie:r-Supreme cowt-Power to implead suo motu a 11ew pa1ty-Ap-
peal-A1isi11g of-From suit filed by mutawalli to recover possession of Wakf 
property--Held : Supreme Cowt, in exercise of its power under An. 136, can 
suo moto implead State wakf Board as an appellant, so as to safeguard the 
B 
c 
D 
E 
interests of the Wakf property. 
F 
Judgment-lnte1pretation of-Contextual interpretati01r-Rule of-Trial 
co wt in its judgment used the word 'proprietor' for the plaintiff-l'laintiff 
sought to derive benefit from this word-Held From a reading of the entire 
paragraph of the trial coun's judgment, the word 'proprietor' cannot be G 
divorced from the context to mean that the property in question is the 
plaintiff's personal property. 
Wordf and Phrases : 
"Prop1ietor"-Meaning of 
H 
854 
SUPREME COURT REPORTS 
[1999) 1 S.C.R. 
A 
The respondent's father was permitted to construct a house in the 
·--
graveyard for the purpose of conducting Fateha at the tombs in the 
compound arid to provide the Fakirs who gathered there, with hucca 
tobacco. A permission deed conferred similar rights, and imposed similar 
obligations, on the respondent's father's progeny. Subsequently, the 
B 
respondent's father gifted the said house to the re

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