AI Structured Summary
Not yet generated for this judgment
Judgment
Hari Lal Agarwal, J.—In this application, by the plaintiffs, the question falling for consideration of this Court is as to whether the suit as constituted, would attract the provisions of Section 69-A of the Bihar Waqfs Act, 3947 (Bihar Act 8 of 1948) (hereinafter referred to as the ''Act'').
Section 69-A makes ''special provisions for certain suits'' enumerated in Sub-section (1) thereof to be filed on a court-fee of Rs. 15 only. It prescribes inter alia, suits where it is instituted on behalf of the Majlis:--
(a) xx xx x
(b) xx xx x
(c) to set aside a transfer of immovable property comprised in a waqf made by a mutwalli or beneficiary thereof otherwise than with the sanction of the Judge or against the terms of the waqf deed, if any, creating the waqf;
(d) to recover possession of the property referred to in Clauses (a), (b) and (c), as mutawalli of the waqf to which the property appertains or to restore such property to the possession of the mutawalli of such waqf;
(e) xx xx x"
The suit in question was originally in stituted by petitioner No. 1 alone through one Md. Kamre Azam who was added as plaintiff No. 2 independently later on by amendment, on a fixed court-fee of Rs. 15 only as provided under Sub-section (2) of Section 69-A of the Act. This suit has been instituted for a decree for recovery of possession of the suit properties from the defendants on the allegation that the Mutwalli of the waqf in question, namely, Jafirul Rahman (defendant No. 26) had transferred the various properties appertaining to the waqf, in favour of the defendants under different sale-deeds, in between period 1965 to 1968 and that wholly unauthorisedly.
When the defendants appeared a question of valuation and sufficiency of court-fee wag raised. Both these issues have been decided by the impugned order. The valuation of the suit has been raised from Rs. 44,000 to Rs. 59,500. The question of valuation is not under challenge.
The learned Additional Subordinate Judge has held that the suit was not covered by Section 69-A (1) of the Act, and therefore, has called upon the plaintiffs to pay ad valorem court-fee thereon. Plaintiffs have accordingly come to this Court as already said earlier.
Mr. Asghar Hussain, who appeared on behalf of the petitioners, contended that the present suit fell within the ambit of Clauses (e) and (d) of Section 69-A (1) of the Act and, therefore, the amount of court-fee already paid on the plaint was sufficient and the trial court has committed an apparent error of jurisdiction, It has now to be seen as to whether this contention is correct,
Sub-section (1) of Section 69-A of the Act contemplates the institution of a suit on behalf of Majlis in three contingencies which are enumerated in Clauses (a), (b) and (c) of Section 69-A of the Act and there is no difficulty in accepting this contention as it is plain on the reading of the provisions contained in the statute. Clauses (a) and (b) are not attracted and, therefore, I have deliberately omitted them, but I do not find it possible to accept the contention of Mr. As-ghar Hussain that the suit would fall in the category of Clause (c). Clause (c) contemplates the institution of a suit on behalf of the Majlis "to set aside a transfer of immovable property comprised in a waqf made by a mutwalli......... otherwise than with the sanction of the Judge or against the terms of the waqf deed" From the reliefs that have been prayed for in the suit, it is manifest that it is not a suit simpliciter for setting aside the transfer of the immovable properties in question although that may appertain to the waqf in question. The specific and unambiguous prayer is for recovery of possession of the properties. Although in order to get recovery of possession the court may be called upon to cancel the transfer by the Mutwalli, but Section 69-A as it is being a special provision must be construed very strictly. It cannot, therefore, be doubted that the suit is not fully covered by Clause (c). It might well have been that if the plaintiffs would have confined their prayer and sought a relief merely for setting aside the impugned transfers by the Mutwalli. They could claim that benefit on paying only the prescribed court-fee under Sub-section (2), but they have made a prayer for a different relief which is certainly outside and at least beyond the purview of Clause (c) of Section 69-A of the Act.
Let us see whether it can be covered by Clause (d). Mr. Asghar Hussain strenuously contended that the suit, as constituted, was completely covered by this clause.
Clause (d) contemplates a suit to recover possession of the property referred to in Clauses (a), (b) and (c). As already said earlier Clauses (a) and (b) have no application in this case. Clause (c) contemplates of a simple suit for setting aside the transfer by a Mutwalli of any waqf property. Where the mere setting aside of the transfer, may not be deemed sufficient and a relief for recovery of possession is also prayed for besides the relief for setting aside the sale under Clause (c), Clause (d) may be attracted. The whole attempt of the petitioners is to bring their case within this clause. From the language and expressions used in these clauses it is apparent that such a suit cannot be filed by the Mutwalli himself his own transaction being impeached in the suit and, therefore, he may be only a defendant, if at all. Mr. Asghar Hussain laid particular emphasis on the difference of the expressions ''mutwalli'' in the two Sub-clauses (d) and (e):-- Whereas under Clause (d) the suit for recovery of possession has to be instituted by a person "as Mutwalli" of a waqf; under Clause (e) it has to be filed "by the succeeding Mutwalli" himself, as in such a case the succeeding Mutwalli is competent to impeach the validity of any alienation or transfer by his predecessor-in-interest and, therefore, can levy the suit himself. The use of the expressions "as Mutwalli" and "by a Mutwalli" in Clauses (d) and (e) are apparent and deliberate. In order to appreciate the distinction between these two expressions, which the Legislature in its wisdom used are not without any substance or purpose. They have been used keeping in view two entirely different and peculiar circumstances.
The expression ''Mutwalli'' is defined in Clause (g) of Section 2 of the Act and "means any person, by whatever designation known, appointed to administer any waqf either verbally or by or under any deed or instrument or in accordance with the usage of such waqf or the District Judge or any other competent authority, and includes any person appointed by a mutwalli to perform the duties of a mutwalli". The definition, therefore, is an inclusive definition and therefore, any person who may for the time being be performing the act of the mutwalli although he may be known by whatever designation and administering or managing any waqf property will be a Mutwalli and if such a person institutes a suit against the Mutwalli or his purchaser in challenge of the transfer made by him, and for recovery of possession of the property, then, in my view, such a person will be acting ''as mutwalli'' and would be competent to institute the suit. A suit by such a person would directly fall under Clause (d). On the above discussions I have come to the conclusion that such a suit in effect and substance would be a suit on behalf of the Majlis by a person ''as a Mutwalli'' or a waqf to which the property in question appertains.
The above discussion, however, would not finally resolve the controversy and it has to be examined as to whether Kamre Azam (plaintiff No. 2) through whom the Majlis as plaintiff No. 1 has purported to institute this suit can be said to be by him ''as a mutwalli'' and within the meaning of Clause (d); as any and every person has not been authorised to institute the suit contemplated by Clause (d) for recovery of possession. The suit must be by the person acting as Mutwalli of the waqf in question and nobody else, in order to bring his case under Clause (d).
I have already referred to the definition of the expression ''mutwalli''. It has got a special meaning and must be construed within the four corners of the definition itself. According to the scheme of the Waqfs Act, any person to hold the office of a mutwalli, must be either appointed (1) under any deed or instrument or; (2) in accordance with the usage of such Waqf or; (3) by the District Judge; (4) or any other competent authority, as well as a person appointed by the Mutwalli himself and any member of a Committee etc.
The learned Additional Subordinate Judge has considered this aspect of the matter in the impugned order and from his discussion it appears that plaintiff No. 2 had moved an application before the Majlis for permission to sue the defendant and by a resolution the Majlis granted him permission. The sanction or approval of the Majlis in its letter dated 21/22-1-1971 addressed to plaintiff No. 2, which has been quoted in the order of the court below, reads as follows:--
"With reference to his petition dated 20-1-71 he is directed to file suit u/s 69-A of the Bihar Waqfs Act, 1948 for the recovery of all the waqf lands of Sk Haji Miajan, Waqf Estate No. 453, alienated by the Mutwalli without the permission of the Majlis or the District Judge, entirely at his own cost."
It has to be seen by this authorisation what rights flow to plaintiff No. 2 and as to whether he can be held to be either a mutwalli within the definition or even a person ''for the time being managing or administering the waqf property as such''. Two other sections may also be considered to answer this question, namely, Sections 27 and 32.
Section 27 enumerates the general powers and duties of the Majlis itself. And one of the powers which is contained in Clause (h) is to remove a mutwalli from his office on various grounds enumerated under various sub-clauses thereto and Clause (o) is to direct the mutwalli of a waqf to institute in a Court of law..... any suit or proceeding which he is entitled to institute in accordance with law for the time being in force in respect of the waqf or any matter connected therewith and. on failure of the mutwalli to do so, to institute such suit and proceeding itself."
Section 32 of the Act empowers the Majlis to appoint a temporary mutwalli under various circumstances enumerated in this section.
It is not the case of plaintiff No. 2 that he has ever been authorised by any competent authority to act as mutwalli of the waqf, much less, that he has ever been appointed the mutwalli of the ''waqf in question. Be that as it may, it has been said in the plaint that the Majlis accorded him permission to institute the present suit and as has been found by the trial court, he is merely a beneficiary. Rather in the fourth paragraph of the plaint, he has specifically stated that it was defendant No. 26 who was mutwalli of the waqf. The trial court has, therefore, rightly observed that plaintiff No. 2 is simply a beneficiary and that the Majlis did not think fit the institution of a suit and gave a bare permission to pursue the matter by plaintiff No. 2 at his risk and cost. From the above discussions the inevitable result that follows is that the present suit cannot be said to be a suit on behalf of Majlis by a person, as Mutwalli of the waqf in question. The suit, therefore, being not covered by any of the clauses of Section 69-A of the Act, it is apparent that the plaintiffs are not entitled to avail the concession provided under Sub-section (2) of Section 69-A of the Act and as such ad valorem court-fee is chargeable. Before closing this case I may refer to an unreported decision of this Court in C.R. No. 403 of 1971 (Zafar Hassan Khan v. Haji Mohammad Abdul Razzaque) disposed of on 30-4-1973 : ( Zafar Hassan Khan Vs. Haji Mohammad Abdul Razzaque and Others, ) which was cited by Mr. Asghar Hussain, as well as the order dated 1-12-1969 passed in F. A No. 189 of 1968.
In both these cases the question, that fell for decision was entirely different, namely as to whether the suit itself was on behalf of Majlis and the person instituting the suit was its representative or not. The decision and the order, therefore, have got no relevancy to this case before me. The learned Additional Subordinate Judge has, therefore, taken a right view in the matter. I would accordingly dismiss this application, but shall leave the parties to bear their own costs.