Wakf; Kerala State Wakf Board Vs. Rajesh [Kerala High Court, 17-03-2016]

Wakf Act, 1995 – S.83(9) –  Compromise Petition – Compromise between the parties after excluding the Wakf Board – The very presence of the Wakf Board in the Wakf Tribunal as a party to such suits is to ensure that the best interest of the Wakf is always under the continuous gaze of the Wakf Board which is duty bound to alert the Wakf Tribunal if something were to go against the interest of the Wakf. Therefore, the procedure adopted by the court below by deleting the Wakf Board from the party array and thereafter, recording a compromise between the parties resulting in the alienation of the property through court cannot be countenanced.

# Wakf Properties



C.R.P.Nos.411 & 481 of 2008

Dated this the 17th day of March, 2016









Thottathil B.Radhakrishnan, J.

1. These revisions are filed under the proviso to

# Section 83(9) of the Wakf Act, 1995

hereinafter referred to as the ‘Act’. The first among the captioned matters is by the Wakf Board and the second is by an individual who claims to be a descendant of the testator of a Will which we would hereinafter refer to as ‘Will’, in view of the dispute between the parties whether the bequest made thereunder also amounts to a wakf. The fact that she is a descendant of the said person is not in dispute before us.

2. Abdul Sathar Haji Moosa executed the Will on the 25th of the 2nd month (Kanni) of 1099 ME corresponding to 1924 AD. The relevant facts for the purpose of considering the proceedings of the court below are that the said Will creates an institution by name ‘Abdul Sathar Haji Moosa Sait Dharmasthapanam’. That was registered with the Wakf Board. An application was filed for sale of a part of the property included in the B Schedule of that Will. That parcel is referred to by parties as ‘Sathar Island’. Application was filed by the institution before the Wakf Board for sanction to sell Sathar Island. That was granted. Certain negotiated sales did not get through. Ultimately, attempt was made to auction out. That also did not fructify. Later on, the plaintiffs laid a suit before the Wakf Tribunal contending that the institution had agreed to sell Sathar Island to the plaintiffs or their nominees and that the said transaction stands with the approval which was granted by the Wakf Board earlier, however that, the institution has failed to discharge its obligations under that contract for sale and therefore, the plaintiffs are entitled to return of the advance paid. The suit so laid was one for return of advance. During the pendency of that suit and after the defendants, including the Wakf Board, had filed the written statements, an application was filed to amend the plaint essentially converting it as a suit for specific performance of the so-called contract for sale. After leave to amend was granted, the matter stood before the Wakf Tribunal for quite sometime. Thereafter, a compromise petition was filed by the plaintiffs and the institution after applying for deletion of the Wakf Board from the party array. That compromise petition was recorded by the Wakf Tribunal and resultantly, a consent decree as between the plaintiffs and the defendants to the suit except the Wakf Board was granted.

3. The revision by the Wakf Board is on the plea that the compromise could not have been recorded without its sanction in terms of Section 93 of the Act and also that due procedure was not followed in the matter of deciding on the compromise petition to which the Wakf Board was not even made a party. It further points out that it did not have even notice of the compromise petition. The Wakf Board is of the firm stand that the institution’s property, which according to the Wakf Board is Wakf property, cannot be transferred.

4. The other revision by Smt.Shamshad Hussain Sait, a descendant of Abdul Sathar Haji Moosa Sait is instituted on grounds which are deeper and beyond what has been urged by the Wakf Board. According to her, the Will of 1099 ME is not a resultant Wakf and is predominantly having all qualities of a trust which inures to the benefit of descendants of the testator. She says that she, her father’s grand father and other persons are specified beneficiaries of the different terms of that Will and there is no Wakf created to the exclusion of the eligibility of those members of the testator’s family to draw the benefit of the trust so created. She also impeaches the impugned decree as also the contract for sale on which it is founded relying on the terms of the Will which contains certain processes amounting to interdiction from transfer of property on the different items dealt with in that Will. To the extent needed she also appears to sail with the Wakf Board, insofar as the question of sanction of the Board and other matters are concerned; though, however, not giving up her plea that there is no Wakf at all.

5.The materials before the court below did not have any substantial documentary or oral evidence for the Wakf Tribunal to take stock of the real nature of the property or the institution before it. Ultimately, everything went through a compromise between the parties after excluding the Wakf Board. We have however seen that there was an earlier suit as W.O.S.No.23 of 2007 at the instance of the institution, i.e., Abdul Sathar Haji Moosa Sait Dharmasthapanam arraying the revision petitioner in C.R.P.No.481 of 2008, Smt.Shamshad Hussain Sait and her siblings as defendants. The Wakf Tribunal then took the view that the property is not Wakf property. Therefore, that suit was returned for presentation before proper court. This Court through C.R.P.No.779 of 2008 interfered with that decision of the Wakf Tribunal and held that what the testator had created through the Will of 1099 ME is essentially what can be called as a mixed Wakf which, according to the learned Judges, is not a mere Wakf-alal-aulad but it also provides for religious and charitable purposes. What we understand from the said judgment is that the resultant conclusion was that the Will created an institution which carries with it the different elements of a Wakf as discernible from the definition of ‘Wakf’ in the Act. Resultantly, the learned Judges held that a Wakf was created and the properties are Wakf properties. We are shown that the Hon’ble Supreme Court of India had issued notice on the petition for Special Leave to Appeal (C) No.19222 of 2010 and had also granted interim stay of further proceedings on that suit. We are also told that subsequently Their Lordships have granted leave to appeal. Incidentally, it has also been brought to the notice of this Court that certain issues relating to payment of Agricultural Income Tax under the Kerala Agricultural Income Tax Act became a moot issue between the taxation authorities of State of Kerala and the institution Abdul Sathar Haji Moosa Sait Dharmasthapanam. One of the prime contentions that is reflected through the judgment delivered by the Hon’ble Supreme Court of India on that matter is the quality of the B schedule properties, of which Sathar Island is a part. This matter is dealt with by the Hon’ble Supreme Court of India in Civil Appeal Nos.1576 and 1577 of 1970 reported as

# Abdul Sathar Haji Moosa Sait Dharmastapanam v. Commissioner of Agricultural Income Tax, Kerala [(1974)3 SCC 257].

When a document, that is to say, the testament of Abdul Sathar Haji Moosa, was interpreted by the Division Bench through CRP No.779 of 2008 in a particular manner, judicial propriety would insist that this Bench of coequal strength would follow that, unless of course, reasons are ripe enough to take a different view. We have bestowed our anxious consideration to the contents of the testament. Even if we were to disagree and refer this matter for consideration of a Full Bench by expressing our opinion on the interpretation and construction of a testament of Adul Sathar Haji Moosa, we see that the practical solution to the problem will not come through by that exercise. We say this because, the interpretation given by the Division Bench through CRP.No.779 of 2008 is pending consideration in the civil appeal noted above. Going back to the precedent (1974) (3) SCC 257 noted above, we have to stand not only guided but following the interpretation given therein because what has been interpreted by Their Lordships of the Hon’ble Supreme Court is the very same testament which is now before us. It was held, among other things, in that precedent that it is clear that the 3/4th income of the B Schedule Properties was primarily earmarked for the benefit of the mere relations of the testator. Therefore, the Apex Court was in agreement with the High Court that the said part of the bequest cannot be considered as a public charitable trust.

6. With the aforesaid being the substance of the conflict between the parties, particularly with reference to the plea raised by the petitioner in C.R.P.No.481 of 2008 (Shamshad), we need to further note that the question whether the property called Sathar Island is essentially Wakf property is a matter which will have far reaching consequences. The registration of a wakf with the Wakf Board is not per se decisive of its title or of the quality of wakf to the exclusion of consideration of such issues in competent jurisdictions. We are told that the so-called Wakf created through the testament of Adul Sathar Haji Moosa has been registered and shown in the register of Wakfs and was published in the Gazette by the State Government. That statutory exercise of putting in place the appropriate control over the Wakfs and operating the regulating machinery of the Act, in our view, may not wholly be determinative of issues touching title to property and the quality of the institution created through the testament of Adul Sathar Haji Moosa when such issue is raised for adjudication and decision in the competent jurisdiction.

7. Insofar as Section 93 of the Act is concerned, the learned Senior Counsel appearing for the Wakf Board argued that Section 93 contains a statutory prescription interdicting compromise of suits without the sanction of the Wakf Board,. Under the law as it stood at the relevant point of time, the provision in Section 51 of the Act provided for certain transactions with the prior sanction of the Wakf Board. Sections 51 and 93 occur in two different chapters of the Act. Section 93 belongs to that bunch of statutory provisions which deals with judicial proceedings whereas Section 51 falls under the chapter which deals with the management of the Wakf. Therefore, the quality of prior sanction provided in Section 51 and the term “sanction” in Section 93 could be differentially understood with the use of the word ‘prior’ before the word ‘sanction’ in Section 51 and the non-use of the word ‘prior’ before the word ‘sanction’ in Section 93. We can necessarily infer the legislative intention that the sanction under Section 93 could also be ex post facto sanction. Therefore, during the pendency of these revisions, we had required the Wakf Board to express itself whether at this point of time, at least, it has any particular view favouring the compromise. The answer placed before this Court through a statement is in the negative.

8. Wakf Board is a necessary party to all suits and proceedings relating to a Wakf property. This is the prescription of the Act. The Wakf Board was made a party to the suit from which these revisions arise. That authority was excluded from the process of arriving at the compromise. The very presence of the Wakf Board in the Wakf Tribunal as a party to such suits is to ensure that the best interest of the Wakf is always under the continuous gaze of the Wakf Board which is duty bound to alert the Wakf Tribunal if something were to go against the interest of the Wakf. Therefore, the procedure adopted by the court below by deleting the Wakf Board from the party array and thereafter, recording a compromise between the parties resulting in the alienation of the property through court cannot be countenanced. It is a clear infraction of the all guarding doctrines inbuilt into the statutory provisions in the Act. It does not make any difference whether the decree is a compromise decree and further examination of that compromise could be had only at the hands of the court which granted the compromise or recorded the compromise. The provisions of Order XIII of the C.P.C which govern compromise as is understood in the general civil procedural law is not the trump card of the petitioners in these revisions. It is not the fraudulent manner of obtaining the leave or compromise that is being projected. It is the recording of a compromise without sanction of law and in violation of the compulsion of Section 93 of the Act. Also, the eligibility of a beneficiary of the testament of Abdul Sathar Haji Moosa to contest any application for sale of the property covered by the said testament including the Sathar Island has necessarily to be recognized particularly when she claims an eligibility for share of income as already noted by Their Lordships in the Supreme Court through the decision in (1974) 3 SCC 257 (supra). We also cannot ignore that the testament of Abdul Sathar Haji Moosa taken as a whole contains very many clauses which require to be focused upon by any judicial authority if it were to grant a decree by compromise or even otherwise in relation to the reliefs sought for in the plaint.

9. For the aforesaid reasons, these revisions are allowed and the impugned decree granted by the Tribunal is set aside and W.O.S.No.21 of 2003 is remanded to the Wakf Tribunal, Ernakulam to commence proceedings from the stage before which the compromise petition noted above was filed. We order impleadment of the petitioner in CRP No.481/2008 as an additional defendant in that suit. The parties will be entitled to place further pleadings and adduce all evidence. The removal of the Wakf Board from the array of parties in the said suit is also set aside and the Wakf Board is restored to its original position as defendant No.2 in the said suit. The parties are directed to mark appearance before the Tribunal on 19.05.2016. We do not express either way on the possibility or otherwise of any further compromise being settled or recorded by the Court in accordance with law.

10. The Wakf Tribunal will dispose of the suit as expeditiously as possible and we hope that parties will co-operate for such disposal.

In the meanwhile, the institution is permitted to withdraw the amounts from the interest portion that has accrued in the fixed deposits lying as ordered by this Court for paying off the Income Tax arrears as well as dues as and when they occur. The plaintiffs, under the interim order of this Court, have registered sale deeds. It is also submitted that they have put certain other parties in possession. These are lis pendens transfers. Accordingly, it is directed that status quo as on today will be maintained and the property shall not be encumbered or alienated and no acts of waste shall be committed on the suit property following the interim order dated 22.09.2008 which order is confirmed and made absolute till the disposal of the suit after remand.


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