Ganapathy Naicker and Another vs The Special Officer for Wakfs

P. S. Kailasam, J.—The petitioners are the usufructuary mortgagees of wakf properties. One item of the property was mortgaged on 8th

April, 1965 for Rs. 1,000 and another on 11th January, 1968 for Rs. 2,000. Subsequent to the passing of the amendment to the Wakf Act, 1954,

section 36-A provides that:

Notwithstanding anything contained in the wakf deed, no transfer of any Immovable property of a wakf by way of

(i) sale, gift, mortgage or exchange; or

(ii) lease for a period exceeding three years in the case of agricultural land, or for a period exceeding one year in the case of non-agricultural land

or building, shall be valid without the previous sanction of the Board.

It is common ground that though the Act came into force in 1964 and the two transactions in question were in 1965 and 1968, previous

sanction of the Board was not obtained. The contention of the learned Counsel for the petitioners is that by this amendment, all that was intended

was to accord statutory recognition to the provisions of Mohammadan Law by which before the transfer of wakf property could be made,

sanction of the Court should be obtained. In a case is which the sanction of the Court was not obtained before actual transfer, a Division Bench of

this Court has held in P.S. Abdul Kadir Vs. The Mahlarathul Kadiria Sabha Kayalpatnam, , that the sanction can be obtained subsequent to the

transaction on valid grounds. I agree with the contention of the learned Counsel for the petitioners that the intention of the Legislature was to codify

the provisions of the Mohamedan Law before the amendment in section 36-A. In this view, it is open to the petitioners to apply to the Board for

sanction regarding the two alienations. If the petitioners fail to obtain such sanction then the provisions u/s 36-B will come into operation. It is also

admitted that the procedure u/s 36-B (2) has not been complied with in that notice has not been given to the petitioners. In the circumstances, the

proper order to make is to allow the petitions and direct the petitioners to apply to the Board for sanction. It is for the Board to consider the

circumstances and grant sanction or refuse to grant it. In the event of the Board refusing to grant the sanction, the Board will be at liberty to take

proceedings u/s 36-B. The petitioners are granted two months time from this date for moving the Board for sanction u/s 36-A. The Civil Revision

Petitions are allowed.