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Judgment
V. Jagannathan, J.—These two appeals arise out of one and the same order passed on I.A. No. 1 by the trial court in O.S. No. 7871/2009. M.F.A. No. 1531/2010 is by defendants-1 and 2, whereas M.F.A. No. 2464/2010 is by the plaintiffs.
The defendants are aggrieved by the order on I.A. No. 1 by which order they have been restrained from putting up any building in the suit schedule property pursuant to the invitation dated 27.11.2009 and the plaintiffs are aggrieved by restricting the order of injunction only for a period of three months i.e., upto 13.4.1010. This is how both the parties have come up in appeal
The plaintiffs'' case in short is that the first plaintiff is the wakf trust created under the last will and testament dated 19.3.1934 of late Hajee Sir Ismail Sait, grand-father of plaintiffs-2 to 4, and the said plaintiffs are the Managing Trustee and Trustees of the first plaintiff wakf and the first defendant is a society registered under the Societies Registration Act, and defendants-2 to 4 are the President, Vice President and Secretary of the said society viz., Cutchi Memon Jamat. It was the further case of the plaintiffs that Hajee Sir Ismail Sait, who had acquired valuable immovable properties in Bangalore and elsewhere, wanted to provide a place for the members of the Cutchi Memon community in Bangalore to congregate and have their meetings and hold religious and ceremonial activities of the members of the Cutchi Memon community and, keeping this in mind and to provide them a Jamat Khana for being used for the aforesaid purpose. He bequeathed in trust his properties bearing Nos. 249 to 254. Cavalry Road, Bangalore, vide paragraph-3 of his will and the said Hajee Sir Ismail Sait died on 24.4.1934. Therefore, referring to the desire expressed in paragraph-3 of the will, the plaintiffs contended before the trial court that the suit schedule property has to be used only for the purpose of Cutchi Memon Jamat Khana (congregation or assembly) and its services and for all Cutchi Memon Jamat meetings and ceremonial purposes, but not for any commercial or other purposes.
It is the case of the plaintiffs that the defendants, claiming to be the persons to manage Hajee Saleh Mohamed Ahmed Sait Cutchi Memon Jamat Khana, have issued an invitation dated 27.11.2009 regarding ground breaking ceremony for the project "Hajee Saleh Mohamed Ahmed Sait Cutchi memon Jamat Khana" (Joint Development) to be performed on 4.12.1009 at the schedule property and the said development is to take place by combining die schedule property with another property of Cutchi Memon Education Trust and, therefore, the plaintiffs averred that the defendants have no right to combine the suit schedule property with any other property and any joint development of the schedule property by combining with other property would go against the express wish and intention of the testator viz., late Hajee Sir Ismail Sait. It is on this foundation that, the plaintiffs sought for an order of permanent injunction restraining the defendants or their agents from combining the suit schedule property with any other properties and also for the relief of permanent injunction restraining the defendants or their agents from putting up any building on the schedule property other than a building meant only for the purpose of Hajee Saleh Mohamed Ahmed Sait Cutchi Memon Jamat Khana. The said property was described as, all that is piece and parcel of the immovable property bearing Nos. 249 to 254 of Cavalry Road, Bangalore, measuring about. ''26,000 square feet and the Jamat. Khana building put up thereon.
The defendants, on their part, raised the plea of bar of jurisdiction by contending that, u/s 85 of the Wakf Act, 1985 (the Act'' in short), no suit or other legal proceedings shall lie in any civil court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under the Wakf Act to be determined by a Tribunal and, therefore, the civil court has no jurisdiction to try the suit. The other averments in the written statement included that of the suit schedule property being not correctly described and the suit is based on conjectures and surmises in the sense that the plaintiffs do not claim any right over the suit schedule property, but they only rely on the conditions mentioned in the will by late Haji Sir Ismail Sait. Therefore, the suit itself is based on assumptions and permanent injunction, therefore, cannot be granted in a suit based on such foundation.
The other averments are that the conditions imposed by late Haji Sir Ismail Sait in the will have been duly complied by the first defendant, and upon the demise of the said Haji Sir Ismail Sait, Shri Abdul Sattar Ismail Sait, son of Haji Sir Ismail Sait, was made the President of the Jamath until he passed away on 18. 12.1945 and it is also averred that the premises bearing No. 249-254 and the land appurtenant thereto was gifted on 7.11.1923 and the first, defendant became the owner of the property bearing No. 249-254 and the said property approximately measures 8,450 sq. ft. It was also contended in the written statement that the first defendant convened a general body meeting on 10.6.2007 for the development, of the property for the betterment of Cutchi Memon community and in the said general body meeting, the fourth plaintiff attended and the decision was accepted unanimously at the general body meeting.
It was also averred in the written statement that the properties possessed by the first defendant Jamath as well as Cutchi Memon Educational Trust adjoin each other and to make best use of the lands available with the first, defendant Jamath as well as the Trust, a decision was taken jointly by them for redevelopment of the properties and the proposed redevelopment will not in any way harm the interests of the first defendant Jamath or Cutchi Memon Educational Trust or the Cutchi Memon community but, on the other hand, the finances emerging out of the development will open up various avenues of service to the community and the income could be spent on education, health and housing, and donations can be made to various hospitals to provide health care for Cutchi Memons and scholarships and donations can be given to schools for the benefit of the community. It is on these essential grounds, the suit of the plaintiffs was sought to be dismissed.
The learned judge of the trial court heard the parties on I.A. No. 1 filed by the plaintiffs for an order of ad-interim injunction restraining the defendants from putting up any building on the schedule property pursuant to the invitation dated 27.11.2009 and the said I.A. was allowed by restraining the defendants from going ahead with the putting up of the building pursuant to the invitation and, at the same time, the order of injunction was restricted for a period of three months upto 13.4.2010.
I have heard Learned Senior Counsel Shri Udaya Holla for the appellants in M.F.A. No. 2464/2010 and learned Senior Counsel Shri S.S. Nagananda for the appellants in M.F.A. No. 1531/2010 and also perused various documents and decisions referred to by the Learned Senior Counsel for the parties.
Learned Senior Counsel Shri S.S. Nagananda for the Cutchi Memon Jamath at the outset submitted that the trial court ought to have considered the question as to the Jurisdiction to try the suit in view of the bar contained under the Wakf Act and without, considering the said aspect, of the matter, the trial court has proceeded to pass the impugned order and, therefore, on this ground alone, the order in question is liable to be. set aside. In order to substantiate this contention, the Learned Senior Counsel referred to the decision of the Madras High Court in the case of Abdul Sattar Ismail Vs. Abdul Humid Sait, to submit, that, in the said decision, it has been held that the testator i.e., late Hajee Ismal Sait, created a valid wakf in respect of the residue of his estate and, therefore, a close reading of the aforesaid judgment would make it clear that what was created by late Hajee Ismail Sait was a wakf and it was not a private trust. Support for this contention was also drawn from the very contents of the will as well as to the stand taken by the plaintiff in C.S. No. 1503/1991 before the High Court of Judicature at Madras, wherein the plaintiffs have stated that late Haji Sir Ismail Sait bequeathed a portion of the estate with a direction that the balance shall be constituted into wakf and this wakf was to be known as the Wakf Estate of Haji Sir Ismail Sait, Bangalore. Reference was also made to other paragraphs of the aforesaid suit C.S. No. 1503/1991, which was disposed of by judgment dated 25.1.2001, Therefore, it is argued by Learned Senior Counsel Nagananda that the trial court ought to have framed a preliminary issue as to whether the wakf created by late Haji Sir Ismail Sait is a wakf within the meaning of the Wakf Act or whether it is a private trust outside the purview of the Wakf Act
As far as this contention is concerned, Learned Senior Counsel Shi Udaya Holla, relying on the very same will of the testator and also the judgment in maintenance and support and benefit of his descendants.
Yet another aspect of the matter, according to Learned Senior Counsel Shri Udaya Holla, is that, though the Learned Senior Counsel appearing for Cutchi Memon Jamath relied on the decision reported in Abdul Sattar Ismail Vs. Abdul Humid Sait, , following rajinama that was entered into between the parties before the Apex Court in C.A. No. 53/1949, against O.S.A. No. 35/1942, Clause-17 of the will stands modified by dividing the balance estate into three portions and, therefore, a reading of the terms of compromise and the rajinama memo would go to indicate that the trust created by late Hajee Sir Ismail Sait was purely a private trust and no longer it remains a public trust and. therefore, the question of the bar contained in Section 85 of the Act coming into operation will not arise. In this connection, Learned Senior Counsel Shri Udaya Holla also took this Court through various provisions of the Wakf Act to submit that the question of considering the bequeath made by late Hajee Sir Ismail Sait and constitution of a Jamath being called as wakf cannot arise.
Apart from the above submissions made by the Learned Senior Counsel for the parties touching upon the issue concerning whether the suit property in question comes within the purview of the wakf or not, both sides also argued on the merits of the order passed by the trial court.
In my view, as both sides rely on the decisions referred to by them respectively to support their contentions, the question therefore that requires to be considered and answered will be as to whether the suit property and the bequeath made by Hajee Sir Ismail Sait can be considered as a wakf property and if a finding is there on this aspect and if it. is held that the bar contained in Section 85 of the Wakf Act comes into operation, then the trial court will not have any jurisdiction to try the suit. On the other hand, if a finding is given that the Wakf Act is not applicable and that the trust created is only a private trust, then the trial court would be justified in proceeding with the suit.
Unfortunately, the trial court has not raised any point for consideration as regards this aspect and as a finding on this issue will touch upon the very jurisdiction of the court, I am of the view that the trial court ought to have raised a preliminary issue for decision as to whether the bar u/s 85 of the Wakf Act operates in the instant case or not. Therefore, in the interest of justice and in the light of the rival contentions put forward by the Learned Senior Counsel for the parties, this Court is of the view that it is not necessary to go into the merits of the order passed by the trial court and all the contentions put forward, therefore, will have to be left open for being considered after recording a finding on the preliminary issue.
At this stage, Learned Senior Counsel Nagananda appearing for Cutchi Memon Jamath i.e., the first defendant in the suit, submitted that the Jamath be permitted to go ahead with the construction of the building in view of the plan obtained by it likely to lapse after two years of the plan being sanctioned by the authorities concerned and secondly, the delay in deciding the preliminary issue would also have a telling effect on the cost to be incurred for development of the property and, therefore, this Court may also consider permitting the defendants to go ahead with the construction work and the defendants will also not claim any equity in the event of the plaintiffs succeeding in the suit in the trial court on merits. Moreover, if any delay occurs, the defendants will be put to great loss.
On the other hand, Learned Senior Counsel for the plaintiffs argued that when the suit of the plaintiffs itself is to restrain the defendants from combining the suit property along with other properties, in the light of the express desire of the testator i.e., Hajee Sir Ismail Sait, permitting the defendants to go on with the construction would virtually render the intention of the testator futile and, therefore, the trial court be directed to frame a preliminary issue and record its finding at the earliest. Moreover, it is the public money that would be pumped into the developmental work and, as such, it cannot be permitted to go waste.
In the light of the aforesaid submissions made, it is desirable that the parties (sic) maintain status quo as on today till the trial court records its finding on the preliminary issue to be framed concerning the nature of the wakf as to whether it is a wakf coming within the meaning of the Wakf Act or a private trust and depending upon the finding to be so recorded, the trial court shall proceed to deal with the matter in accordance with law.
In the result:, I pass the following order:
Both the appeals are allowed insofar as setting aside the order passed by the trial court on I.A. No. 1 is concerned.
The trial court is directed to frame a preliminary issue as to whether the wakf created by late Hajee Sir Ismail Sait is a wakf formed within the definition of Section 2(r) of the Wakf Act or whether it is a private trust to which the Indian Trusts Act is applicable, and further, the trial court, shall also consider as to whether the bar contained in Section 85 of the Wakf Act is attracted to the case or not.
Till such time the trial court, records a finding on the preliminary issue, both parties are directed to maintain status quo as regards the suit property is concerned and the status quo order shall continue till the disposal of I.A. No. 1 also and the trial court shall also dispose of I.A. No. 1 after recording its finding on the preliminary issue at the earliest and not later than one month from the date of recording its finding on the preliminary issue.
The trial court shall frame the preliminary issue and hear the parties and record its finding on the said preliminary issue before the end of June 2010 and both parties shall cooperate in this regard. The trial court is at liberty to hear on I.A. No. 1 after recording its finding on the preliminary issue and to dispose of the said I.A. in accordance with law. Both the parties are at liberty to place evidence in support of their rival contentions concerning the preliminary issue.
Any observations made herein above shall not have any bearing on the findings to be recorded by the trial court on the preliminary issue.