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


IN THE HIGH COURT OF KERALA AT ERNAKULAM

THOTTATHIL B.RADHAKRISHNAN & ANU SIVARAMAN, JJ.

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

Dated this the 17th day of March, 2016

WOS.21/2003 of WAKF TRIBUNAL, ERNAKULAM

REVN. PETITIONER/2ND RESPONDENT

KERALA STATE WAKF BOARD REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER VIP ROAD, KALOOR, KOCHI-682 017.

BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD SRI.A.A.ABUL HASSAN, SC, WAKF BOARD

RESPONDENTS/PLAINTIFFS/1ST DEFENDANT

RAJESH

ADV.SMT.SHAHNA KARTHIKEYAN FOR R1 SRI.V.ARUN FOR R1 SRI.M.GOPIKRISHNAN NAMBIAR FOR R2 SRI.T.H.ABDUL AZEEZ FOR R3 SRI.M.A.MOHAMMED SIRAJ SRI.M.ISHA FOR R3

O R D E R

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