High Court · 2022

W.P.No.40652 of 2015 and W.M.P.No.1 of 2015IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 14.09.2022CORAMTHE HON'BLE MR.JUSTICE N.SATHISH KUMARW.P.No.40652 of 2015andW.M.P.No.1 of 2015Mohammed Zahoorullah.. Petitionervs. 1.The Chairman Tamilnadu waqf Board No.1 Jaffer Sarang Street, Vallal Seethakathi Nagar, Chennai 600005.2. The Chief Officer/District Revenue Officer, Tamil Nadu waqf Board No.1 Jaffer Sarang Street, Vallal Seethakathi Nagar, Chennai 600005.3. The Superintendent of waqfs Tamilnadu waqf Board, Chennai Zone, No.821, Anna Salai, Chennai 600002. 4 The Inspectof of waqfs Tamil Nadu waqf Board, 1/10 https://www.mhc.tn.gov.in/judis W.P.No.40652 of 2015 and W.M.P.No.1 of 2015 Chennai Zone,. No.821, Anna Salai, Chennai 600002. 5. Rani Ammal6. R. Rasheedullah.. RespondentsWrit Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for records relating to proceedings in impugned proceedings in e.f.v©.34/15/M6/br dated 01.12.2015 issued by the 2nd Respondent and to quash the same in insofar as it relates to the 2nd Respondent. For Petitioner: Mr.Inamdar Amenur RahmanFor Respondents: Mr. Raghavachari for Mr.Sunny Sheen [for R1 to R4] R5 – died Mr.K. Moorthy [for R6] O R D E RThe writ petition is filed to quash the proceedings in e.f.v©.34/15/M6/br dated 01.12.2015 issued by the 2nd Respondent.2. It is the contention of the writ petitioner that the subject matter of the impugned order is a private property. The impugned order has been passed at the instance of the 5th Respondent who is tenant in the property and the property is neither waqf property nor dedicated in favour of the 2/10 https://www.mhc.tn.gov.in/judis W.P.No.40652 of 2015 and W.M.P.No.1 of 2015Saeedanee Bibi Sahiba Mosque. It is only waqf-ul-Aulad and only on the total extinction of all the inheritors of the testator, Only then the said property will go as a waqf property to the Saeedancee Bibi Sahiba Mosque. Untill all the beneficiaries of Ahmed Hussain, the Testator are alive, the property will never go to the Saeedanee Bibi Sahiba Mosque. Hence it is the contention of the writ petitioner that the impugned order is at the instance of the tenant who have not paid the rents. Therefore, seeks to quash the impugned proceedings.3. Learned counsel appearing for the Petitioner would submit that the testator executed Settlement Deed only for his legal heirs and his sister's legal heirs to derive the income from the property. If there is no one in the family, the property should be given to Saeedanee Bibi Sahiba Mosque. Therefore at this stage registering before the waqf Board does not arise at all. The impugned order has been passed pursuant to the Writ Petition filed by the Respondents who are the tenants, to defeat the rights of the Petitioner. In the earlier W.P.No.33326 of 2015, this Court only directed the waqf Board to consider the representation of the petitioner. Based on that 3/10 https://www.mhc.tn.gov.in/judis W.P.No.40652 of 2015 and W.M.P.No.1 of 2015direction the impugned order has been passed. Hence, it is his contention that the impugned order is nothing but non-application of mind and passed at the instance of the third parties to interfere with the private property of the petitioner. In support of his contention he relied upon the judgement in Tamil Nadu waqf Board vs. Larabsha Darga Panruti [CDJ 2007 sc 1267] wherein the apex Court has held that even the property belongs to a private waqf i.e., wak-alal-aulad waqf, the waqf board has no jurisdiction to interfere with the affairs. 4. Whereas the learned counsel appearing for the 1st Respondent/waqf Board would submit that the affidavit of the Petitioner itself indicates that the property is dedicated to the waqf-ul-Aulad. Therefore, the impugned order does not require any interference and when the Board has passed an order directing the petitioner to appear before the waqf board, the remedy for the petitioner to go before the waqf Tribunal under Section 83(2) of the waqf Act, 1995. Hence, the writ petition is not maintainable.5. The impugned order directed the petitioner to register the waqf 4/10 https://www.mhc.tn.gov.in/judis W.P.No.40652 of 2015 and W.M.P.No.1 of 2015within 15 days, failing which the same will be registered under Section 36 of the waqf Act. Board resolution dated 13.11.2015 when carefully perused, the same has been passed subsequent to the direction given in the Writ Petition in W.P.No33326 of 2015 to consider the representation of the 6th Respondent herein. The resolution further proceeded as if the counsel appearing for the waqf has admitted before this Court to register the waqf within eight (8) weeks and the resolution came to be passed. It is relevant to note that the counsel appearing for the waqf never stated that the waqf will register the petitioner's property within 8 weeks. What was conceded before this Court is to consider the representation of the petitioner i.e., the 6th Respondent herein, within a reasonable time. Whereas the Board has presumed as if the counsel for the waqf agreed to register the waqf within 8 weeks. Such presumption itself is against the order of the writ petition. 6. Be that as it may. Now, the point arise for consideration over the property is whether the property is dedicated to waqf property and required for registration under Section 36 of the waqf Act. On a careful perusal of the definition of the “waqf”, Section 3(r) of the Act reads as follows:5/10 https://www.mhc.tn.gov.in/judis W.P.No.40652 of 2015 and W.M.P.No.1 of 2015(3) (r) “waqf” means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes—(i) ..................(ii) ..................(iii) ..................(iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, and “wakif” means any person making such dedication; 7. On a careful perusal of the definition, to treat the property as a waqf Property there must be a permanent dedication by a person, any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable. The waqf-alal-aulad is dedicated for same purpose when the line of succession of the execution fails. The document relating to the waqf Property dated 14.07.1951 when carefully perused, though the word “waqf” has been used in the settlement, the intention of the settlor was to settle the property to all his legal heirs and the income to be 6/10 https://www.mhc.tn.gov.in/judis W.P.No.40652 of 2015 and W.M.P.No.1 of 2015used by the family membes. Only when no one in the family, the property should be given to the Saydani Bibi Sahiba Mosque. As long as the relatives are the legal heirs of the testator in various source available the income should be shared only by the legal heirs as shown in the deed. Though nomenclature of the document appears to be endowment, the intention of the testator can be easily discernible on reading of the entire document. The main purpose of the settlement is only in favour of the family members to share the income from the property. Only when no one is alive in the line of succession, the property shoule be dedicated. Therefore, subject property cannot be considered as waqf property at this stage. Though it falls under the definition of waqf-alal-aulaud as per Section 3(r)(iv) of the Waqf Act, such stage has not attained. But, the line of succession are still alive. Therefore, at this stage, waqf Board passing a resolution and taking control of the property does not arise at all, as the same was settled in favour of the Petitioner and others, to derive the income from the property. 8. The dedication will be completed only in the absence of successor 7/10 https://www.mhc.tn.gov.in/judis W.P.No.40652 of 2015 and W.M.P.No.1 of 2015to succeed or line of succession fails. Admittedly, the property has been settled in the form of distribution of income to various legal heirs. Such being the position, as long as the legal heir are very much alive to derive the income as intended by the settlor, the question of treating the property as pious, religious or charitable would not arise at all. Even though in the event of succession fails or no one in the testator's family thereto inherit the property, the property would go to the Saydani Bibi Sahiba Mosque. Such a stage has not yet reached. Therefore at this stage to register the waqf will not serve any purpose. 9. It is also relevant to note that the Board has passed a resolution as if there was a direction to take action to register the property as waqf from this Court. Such resolution is also misconceived. It is contrary to the order passed by this Court. Though it is stated by the learned counsel appearing for the waqf Board that only waqf Tribunal has jurisdiction to go into the issue, when the deed of settlement is very clear and indicate the manner in which the property should be distributed among the legal heirs, the question of driving the private parties to go before the waqf Board at this stage for 8/10 https://www.mhc.tn.gov.in/judis W.P.No.40652 of 2015 and W.M.P.No.1 of 2015agitating their rights will not arise at all. Accoringly, the impugned order is quashed. 10. In view of the above, writ petition is allowed and the impugned order is quashed. No cost. Consequently, connected Miscellaneous Petition is closed. 14.09.2022 Speaking/Non speaking orderIndex : Yes/NoInternet : Yes/NoggsTo1.The Chairman, Tamilnadu waqf Board No.1 Jaffer Sarang Street, Vallal Seethakathi Nagar, Chennai 600005.2. The Chief Officer/District Revenue Officer, Tamil Nadu waqf Board No.1 Jaffer Sarang Street, Vallal Seethakathi Nagar, Chennai 600005.3. The Superintendent of waqfs, Tamilnadu waqf Board, Chennai Zone, No.821, Anna Salai, Chennai 600002. 4 The Inspectof of waqfs, Tamil Nadu waqf Board, Chennai Zone, No.821, Anna Salai, Chennai 600002. 9/10 https://www.mhc.tn.gov.in/judis W.P.No.40652 of 2015 and W.M.P.No.1 of 2015N.SATHISH KUMAR, J.ggs W.P.No.40652 of 2015and W.M.P.No.1 of 201514.09.202210/10