# Mrs. Ameena Jung & Anr. Revisionists v. Faridi Waqf & Ors. Opp. Parties

- **Citation:** (2024) 5 ILRA 746
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-21
- **Case number:** Civil Revision No. 22 of 2022
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mrs-ameena-jung-anr-revisionists-v-faridi-waqf-ors-opp-parties-51972
- **Pages:** 22

## Headnote

Civil Law - Code of Civil Procedure,
1908) - Order 1 Rule 10 - Proper and
Necessary
Parties
-
The
Waqf
in
question was a Waqf-Al-Aulad (private
Waqf for the settlor's descendants). The
then Mutawalli, Abdul Jalil Faridi, who
was also a beneficiary, knew his two
sisters,
among
others,
were
direct
beneficiaries.
However,
he
moved
application to delist properties from the
Waqf
Board's
register
without
impleading the beneficiaries in the
proceedings. Held : The revisionists,
being direct beneficiaries and known to
the Mutawalli, were necessary parties..
Revisionists presence before the Waqf
Tribunal
was
both
necessary
and
imperative as it affected the character
and composition of waqf property which
was the corpus of the waqf and was for
the benefit of the beneficiaries. (Para 45)

Allowed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,628 of 76,820. This is a partial read: ask again with offset=39628 for what follows._

746 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 5 ILRA 746
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.05.2024

BEFORE

THE HON'BLE JASPREET SINGH, J.

Civil Revision No. 22 of 2022

Mrs. Ameena Jung & Anr. ...Revisionists
Versus
Faridi Waqf & Ors. ...Opp. Parties

Counsel for the Revisionists:
Subhash Vidyarthi, Dhruv Mathur, Saud Rais

Counsel for the Opp. Parties:
Syed Qamar Hasan Rizvi, Farhan Habib,
Pranav Agarwal, Pritish Kumar, Shantanu
Gupta, Syed Aftab Ahmad

Civil Law - Code of Civil Procedure,
1908) - Order 1 Rule 10 - Proper and
Necessary
Parties
-
The
Waqf
in
question was a Waqf-Al-Aulad (private
Waqf for the settlor's descendants). The
then Mutawalli, Abdul Jalil Faridi, who
was also a beneficiary, knew his two
sisters,
among
others,
were
direct
beneficiaries.
However,
he
moved
application to delist properties from the
Waqf
Board's
register
without
impleading the beneficiaries in the
proceedings. Held : The revisionists,
being direct beneficiaries and known to
the Mutawalli, were necessary parties..
Revisionists presence before the Waqf
Tribunal
was
both
necessary
and
imperative as it affected the character
and composition of waqf property which
was the corpus of the waqf and was for
the benefit of the beneficiaries. (Para 45)

Allowed. (E-5)

List of Cases cited:

1. Mst. Peeran Vs Hafiz Mohammad Ishaq, AIR
1966 All 201
2. Abhishek Shukla Vs High Court of Judicature,
AIR 2018 All 32

3. Ramesh Hirachand Kundanmal Vs Municipal
Corporation of Greater Bombay, (1992) 2 SCC
524

4. Mumbai International Airport (P) Ltd Vs
Regency Convention Centre & Hotels (P) Ltd.,
(2010) 7 SCC 417

5. Baluram Vs P. Chellathangam, (2015) 13 SCC 579

6. S.P. Chengalvaraya Naidu Vs Jagannath, 1994
1 SCC 1

7. Indian Bank Vs Satyam Fibres (India) Pvt. Ltd.,
(1996) 5 SCC 550

8. United India Insurance Co. Ltd. Vs Rajendra
Singh, (2000) 3 SCC 581

9. K.D. Sharma Vs SAIL, (2008) 12 SCC 481

10. A.V. Papayya Sastry Vs Government of A.P.,
(2007) 4 SCC 221

11. Ram Chandra Singh Vs Savitri Devi, (2003) 8
SCC 319

(Delivered by Hon'ble Jaspreet Singh, J.)

1. The instant revision has been
preferred under Section 83 (9) of the Waqf
Act, 1995 being aggrieved by the order
dated 04.07.2018 passed by the Uttar
Pradesh Waqf Tribunal in Waqf Case no. 37
of 2018, as a consequence, several
properties belonging to Waqf No. 42-A,
Lucknow have been de-listed from the
register of Waqf.

2. In order to appreciate the
controversy involved in the instant revision,
certain facts giving rise to the instant
revision are being noted hereinafter:-

3. Dr. Mohd. Abdul Jalil Faridi and
his brother Lt. Mohd. Rafey Faridi both sons
5 All. Mrs. Ameena Jung & Anr. Vs. Faridi Waqf & Ors.
747
of Late Khan Bahadur Maulvi Mohammad
Abdul Haq Saheb created a Walf-Alal-Nafs
and Alal-Aulad to be (known as Waqf
Faridi) by a Waqf deed dated 09.11.1945
and two properties were dedicated to the
Waqf Faridi; (i) House No. 91, Dr. Moti Lal
Bose Road, Machli Mohal, P.S. Hazratgarnj,
Lucknow (ii) Faridi Building situated on
Nazool Plot No. 14 near Maqbara Amzad
Ali Shah, Hazratganj, Lucknow.

4. Dr. Mohd. Abdul Jalil Faridi was
the first mutawalli of the Waqf and the
waqf deed provided that the income of the
waqf would be shared amongst the wakifs
from generation to generation in equal
amounts.
The
Waqf
deed
further
stipulated that the income from any of the
properties if was less than the amount
required for its upkeep and other
necessary expenses then the same could
be sold to purchase a better property
subject to the condition that on the
purchase of the new property, the same
would also be dedicated to the Waqf.

5. At this stage, it will be relevant
to reproduce certain recitals of the Waqf
deed:-

Section (1): The present Waqf
shall be called 'Waqf Fareedi' and this Waqf
is created for purposes of residence and
sustenance of the persons endowing the
Waqf mentioned in Section (4) on the
following conditions. In the event of
discontinuance of the progeny of the persons
endowing the Waqf mentioned in the
aforementioned Section, the income of the
Waqf property, in accordance with the
conditions
mentioned
in
the
present
document, will be spent, on relatives and
orphans and poors' education for those not
having means and other beneficial causes,
respectively.

Section 3: (a): It will be incumbent
upon every Mutawalli to keep a regular
nccounts of the present Waqf and give
details
of
account
to
cach
of
the
beneficiaries of the Waqf. It will be
incumbent
upon
any
Mutawalli
that
according to the desire of beneficiaries of
the Waqf, satisfy them by showing them the
accounts of the Waqf.

(b): If at any time the Mutawalli
does not keep accounts, or without any
strong and reasonable cause does not pay
the income from Wagf property at any
appropriate time, to the beneficiaries of the
Waqf and necessity of filing of a suit arises,
or commits such an omission in the
management of the property. or he
knowingly commits any act or acts on
account of which there is a decrease in the
profits of the property or commits express or
implied dishonesty or misappropriates then
the beneficiaries of the Waqf may jointly or
severally will have a right to present a
petition before the Authorised Officer get
the Mutawalli removed and in his place any
other person may be a Mutawalli according
to the procedure and intention of the present
document to discharge the duties of
Mutawalliship.

Section 4 (a): The income of the
Waqf property detailed below shall be spent
on the repairs of the dilapidated and fallen
buildings and payment of every kind of tax
and other expenditures which are necessary
for conservation of the Waqf property. The
amount left after deduction of necessary
disbursement
and
expenditure
above
mentioned will remain at the disposal of us
executants, generations after generations,
womb to womb and the said amount shall be
distributed equally between we executants.
This
equal distribution
shall
remain
operative with the progenies of we
executants, that is to say half the income will
be given to the progeny of me, the first
748 INDIAN LAW REPORTS ALLAHABAD SERIES
executant and the other half to me the
second executant.
-----******-----*****------******-----

(j): The beneficiaries of the Waqf
will not have the right to transfer, directly or
indirectly in any form, the profit which has
been given to him in accordance with the
conditions of the present document to any
person who is not in the progeny of we
executants or the sons of the brothers of
deceased aforementioned, with or without
any consideration. But, the progeny of we
executants and the sons of the brothers of
the deceased aforementioned can transfer
amongst themselves the rights to profits with
or without consideration. And if, Allah
forbid, any person transfers the profit in
violation of the conditions in the present
documents, then that transfer with respect to
the Waqf property shall be deemed to be
illegal and void, and it will be incumbent on
the Mutawalli of the Waqf to refuse to
implement the same, and if the Mutawalli of
the Waqf in disregard to the conditions of
the present Section acts on such a transfer
then he would be personally responsible for
returning of that amount which he had spent
in disregard to the conditions in the present
Section and the other parties to the profit
will have a right to recover that amount
from the said Mutawalli and give to the
person entitled amongst themselves.

-----******-----*****------******-----

Section (6): If the income of a
property out of the Waqf properties
mentioned below becomes less than the
necessary expenses above mentioned or by
selling it, more profit is possible by buying
another property then the Mutawalli at that
time will have a right to sell that property
aforesaid in accordance with the prevalent
law and to buy another property but in this
situation the property purchased shall be
deemed to be a Waqf property and the
conditions of the present document shall be
promulgated and enforced on the same.

Section (7): In case the Waqf
property is extinguished fully or partly on
account of promulgation of a law in force at
that time, it would be necessary to abide by
Section (6) mentioned above.

6. Dr. Mohd. Abdul Jalil Faridi taking
recourse to Clause 6 of the Waqf deed
sought permission from the District Judge
on 30th April, 1960 and sold part of the waqf
property situate at 91, Moti Lal Bose Road
by means of a deed dated 04.05.1960 in
favour of Sunni Central Board of Waqf for a
sale consideration of Rs. 61,307/-

7. Since in terms of Clause 6 upon sale
of the waqf property, the proceeds were to
be applied for the benefit of the waqf,
accordingly, Dr. Mohd. Abdul Jalil Faridi,
the mutawalli, purchased plot No. 3 at 23/B
Ashok Marg (erstwhile known as 3-B
Outram Road) through a sale deed dated
04.08.1961. Another property bearing Plot
No. 3/1 Mohalla- Karbala, Alamgir, Ram
Teerth Marg (Erstwhile known as New
Berry
Road),
Narahi,
Lucknow
was
purchased from the Sunni Central Board of
Waqf by means of sale deed dated
31.10.1961 as such now the waqf had four
properties namely (i) part of house no. 91,
Dr. Moti Lal Bose Road (ii) Faridi Building,
Hazratganj (iii) Plot No. 3, 23-B Outram
Road (iv) lease hold plot measuring 15811
square feet at 3/1 New Berry Road,
Lucknow.

8. The first mutawalli Dr. Mohd.
Abdul Jalil Faridi died on 19.05.1974 and
his son who also shared the same name as
his father Mohd. Abdul Jalil Faridi, he
became the mutawalli (for the sake of
clarity, the first mutawalli has been referred
to as Dr. Mohd. Abdul Jalil Faridi whereas
5 All. Mrs. Ameena Jung & Anr. Vs. Faridi Waqf & Ors.
749
upon his death his son has been referred to
as Mohd. Abdul Jalil Faridi).

9. Abdul Jalil Faridi filed an affidavit
before the Waqf Board for inclusion of the
two properties purchased by the Waqf
namely Plot No. 3, 23-B Outram road and
the lease hold rights in plot no. 3/1 New
berry road, Lucknow as the said two
properties were acquired from the funds
generated by selling part of the waqf
property by Dr. Mohd. Abdul Jalil Faridi,
upon which clause 6 of the Waqf deed was
applicable.

10. It is also relevant to note that
Mohd. Abdul Jalil Faridi after having taken
over as the mutawalli of the waqf got a new
lease executed in his own name in respect of
the property situate at New Berry Road,
Lucknow. Later Mohd. Abdul Jalil Faridi
entered into an agreement to sell in respect
of the plot bearing No. 3/1 New Berry road,
Lucknow, through one Sri Mustafa Khan, to
sell the property in favour of Sri Keshav
Gurnani and in order to take the proceedings
to its logical conclusion also received sale
consideration in installments.

11. He also made an application dated
08.05.2017 before the Waqf Board seeking
the permission of the Board to delist/remove the plot No. 3/1 New Berry
Road, Lucknow and the property bearing
No. 23-B, Outram Road (now known as
Ashok Marg, Lucknow) from the register of
waqf properties.

12. This application was rejected by
the Waqf Board by means of order dated
27.02.2018. Mohd. Abdul Jalil Faridi
assailed the said order by filing case No. 37
of 2018 before the Waqf Tribunal. The
Waqf Tribunal after hearing Mohd. Abdul
Jalil Faridi and the Waqf Board who were
the only two parties before the Waqf
Tribunal allowed the said petition noticing
that the two properties for which Mr. Abdul
Jalil Faridi had sought de-listing/removal
from the register of Waqf were lease hold
properties and since there was no permanent
dedication, hence, the same could not be
treated to be Waqf property and the Waqf
Tribunal relying upon a decision of this
Court directed that the two properties could
not be waqf properties. Once, the said order
was passed by the Waqf Tribunal dated
04.07.2018, Mohd. Abdul Jalil Faridi got the
lease hold rights converted into free hold.
Mohd. Abdul Jalil Faridi also executed his
will dated 09.04.2018 and upon his death on
18.10.2018, in terms of his will the two
properties i.e. bearing No. 23-B Ashok Marg
and Plot No. 3/1 Ram Teerath Marg were
bequeathed to his three daughters and the
will also provided that Ms. Anush Khan
would be the mutawalli of the Faridi Waqf.

13. Soon after the death of Mohd.
Abdul Jalil Faridi, his three daughters
transferred plot no. 3/1 New Berry Road to
M/s Syks Infratech Pvt. Ltd. It is thereafter
the present revisionist have filed the instant
revision
assailing
the
order
dated
04.07.2018 passed by the Waqf Tribunal by
filing this revision.

14. Sri Dhruv Mathur, learned counsel
for the revisionist has assailed the order
impugned passed by the Waqf Tribunal
primarily on the ground that the proceedings
before the Waqf Tribunal were collusive in
nature. It is urged that the revisionist nos. 1
and 2 are the sisters of late Mohd. Abdul
Jalil Faridi and daughters of Dr. Mohd.
Abdul Jalil Faridi ( the first mutawalli) and
as such they were the beneficiaries of the
waqf and without impleading them in
proceedings before the Waqf Tribunal, such
an order could not have been passed which
750 INDIAN LAW REPORTS ALLAHABAD SERIES
has the effect of removing the properties
from the register of Waqf and ultimately
permit the mutawalli to dissipate the
property of waqf to his personal benefit.

15. It is further urged that Mohd.
Abdul Jalil Faridi (the brother of the
revisionist) throughout his lifetime had
treated the said properties as waqf and
belonging to Waqf Faridi. However, his
actions of scheming to sell the waqf
properties for his personal benefit were
contradictory to his status of a mutawalli,
whose primary role was to ensure that the
property dedicated to the waqf was
perpetuated and protected.

16. It is further submitted that Mohd.
Abdul Jalil Faridi knowing fully well that
the properties at Ashok Marg road and Ram
Teerath Marg road were both Waqf
properties and in a surreptitious manner, he
got a lease executed in his personal name,
which was legally not permissible, as he was
trying to create a title in himself, adverse to
the interest of the Waqf while he was
discharging his obligations as a Mutawalli.
Hence, in a fraudulent manner, he devised a
methodology to transfer the property for
which he used the judicial forum of the
Waqf Tribunal to seek a seal of judicial
acceptability and for it he only impleaded
the Waqf Board and deliberately ignored to
implead the necessary parties i.e. the
beneficiaries
and procured the order
impugned
behind
the
back
of
the
revisionists.

17.
 The
revisionist
being
the
beneficiaries have a direct interest in the
well being of the Waqf as well as in the
upkeep of the Waqf properties and they have
ample right and interest to maintain the
revision.

18. Sri Mathur, learned counsel further
urges that from the bare perusal of the waqf
deed of 1945, it was clear that if any of the
waqf properties were sold then the funds
generated therefrom would be utilized for
the benefit of the waqf and as such the
property procured from such funds would
also be treated as a waqf property and could
not be transferred.

19. It is submitted that once Dr. Mohd.
Abdul Jalil Faridi after seeking permission
from the District Judge on 13th April, 1960
sold part of the waqf property situate at 91,
Dr. Moti Lal Bose Road, the funds generated
from the said sale was utilized by Dr. Mohd.
Abdul Jalil Faridi in procuring the property
at 23-B Ashok Marg and Ram Teerath
Marg, hence, by virtue of Clause 6 of the
Waqf deed and the said properties too were
waqf properties.

20. Once, the said properties were
waqf property and the brother of the
revisionist i.e. Mohd. Abdul Jalil Faridi
also treated the same as Waqf property,
thus, he could not have acted adverse to
the interest of the waqf by moving an
application seeking to de-list the property
from the register of the waqf.

21. It is further pointed out that the
Waqf Board before whom, at the first
instance, an application was moved,
though, did not pass any order de-listing
the properties from the register of waqf.
However, it paved the way for Mohd.
Abdul Jalil Faridi to approach the Waqf
Tribunal wherein by merely impleading
the Waqf Board who did not oppose the
claim rather gave in to the prayer made by
Abdul Jalil Faridi and facilitated the
passing of the order impugned dated
04.07.2018.
5 All. Mrs. Ameena Jung & Anr. Vs. Faridi Waqf & Ors.
751

22. It is also urged that the Waqf Board
was duly aware of the fact that the part of the
property of the Waqf Faridi which was sold
by Dr. Mohd. Abdul Jalil Faridi to the Waqf
Board itself and from the said sale proceeds
received, two properties were created which
was in the notice of the Waqf Board
including as per the stipulations contained in
Clause 6 of the Waqf deed of 1945, hence,
in such circumstances, it was apparent that
the proceedings before the Waqf Tribunal
was nothing but a process to scrub and
cleanse the illegal act of Abdul Jalil Faridi.

23. It is also submitted that the
provisions of the Uttar Pradesh Muslim
Waqf Act, 1960 defines a waqf and the waqf
property. The provisions contained in the
Waqf Act, 1995 are a little different
especially the definition of the word 'waqf'.
It is also submitted that the reliance placed
by the Waqf Tribunal on the decision of this
Court in Mst. Peeran Vs. Hafiz Mohammad
Ishaq: AIR 1966 Alld. 201 which has been
followed in a subsequent decision of this
Court in Abhishek Shukla Vs. High Court
of Judicature; AIR 2018; Alld 32 do not
help the case and the dictum therein has
been incorrectly applied by the Waqf
Tribunal, accordingly, the premise upon
which the order has been passed by the
Waqf Tribunal is erroneous.

24. It has further been submitted by Sri
Mathur that since the property of the waqf
was Nazool, hence, its disposition would not
be in terms of the Transfer of Property Act,
1882 rather it being a grant and was
governed by the Government Grants Act,
1895. It is also urged that Section 2 of the
Government Grants Act, 1895 clearly
indicates that the Transfer of Property Act,
1882 will not apply to Government Grants,
thus, the manner in which the Waqf property
has been transferred is clearly fraudulent.

25. Lastly, it has been urged that
various documents filed in the instant
revision would indicate the fraudulent
activities of Mohd. Abdul Jalil Faridi and
the course he adopted to transfer the Waqf
property fraudulently in itself renders all
acts as a nullity including the deed which the
daughters of Mohd. Abdul Jalil Faridi have
executed in favour of M/s SYKS Infratech
Pvt. Ltd. Any order which is effectuated by
fraud, misrepresentation and concealment of
fact is necessarily rendered void and if the
order dated 04.07.2018 is held as such then
all consequential acts including execution of
the deed in favour of M/s Syks Infratech Pvt.
Ltd. also falls and the property which has
been illegally sold needs to be reverted back
and be declared as property and part of Waqf
Faridi.

26. Sri Sudeep Seth, learned Senior
Counsel assisted by Sri Syed Aftab Ahmad,
learned counsel appearing for respondent
no. 3 has questioned the submissions made
by learned counsel for the revisionist
primarily on the ground that the instant
revision has been preferred under Section 83
(9) of the Wakf Act of 1995. It is submitted
that the scope of a revision in terms of the
aforesaid section is very narrow. The thrust
of the submission is that the present
revisionists were not a party before the Waqf
Tribunal. The revisionist allege themselves
to be the beneficiaries of the Waqf but since
the time of its creation in the year 1945 till
the initiation of proceedings of this revision,
the revisionists did not claim any right as a
beneficiary and as such they were neither the
necessary nor proper parties before the
Waqf Tribunal, hence, they have no right to
maintain the above revision.

27. It is also urged by the learned
Senior Counsel that the order dated
27.02.2018 passed by the Waqf Board has
752 INDIAN LAW REPORTS ALLAHABAD SERIES
not been challenged by the revisionists. In
absence of any challenge to the order dated
27.02.2018 passed by the Waqf Board, the
order passed by the Waqf Tribunal dated
04.07.2018 could not be challenged since
the genesis is the order dated 27.02.2018. In
the said circumstances, the revisionists
ought
to
have
filed
an
appropriate
application before the Waqf Tribunal itself
rather than rushing to this Court. Even
otherwise, the revisionists have filed large
number of documents with the revision and
the revisionists have raised controversial
questions which are pure questions of fact
which require evidence and it cannot be seen
or adjudicated by this Court in exercise of its
revisional jurisdiction.

28. It is further submitted by Sri Seth
that admittedly the two properties, the
subject matter of controversy i.e. one at
Ashok Marg and the other at New Berry
Road, were both Nazool properties and it is
the State which has absolute title to such
properties. Upon the expiry of the period of
lease, the said two properties came into the
hands of the State. It is further urged that the
lease of Ashok Marg property expired on
31.03.1991 whereas the lease relating to the
New Berry Road property expired on
27.03.1999. Even assuming if the said
properties were of the Waqf, even then at
best the Waqf had only a limited interest
therein. As soon as the term of the respective
lease came to an end, they ceased to be Waqf
properties.

29. It is also urged that in any case, as
per the definition of the word 'waqf' as
contained in the Wakf Act, 1995, it is
necessary that the property is dedicated to
the waqf permanently. In case if the settlor
did not have exclusive right to dedicate the
property to the Waqf permanently, in such a
situation, a Waqf cannot be created as it
lacks the necessary ingredient of permanent
dedication. It is further urged that this is the
issue which has been considered by this
Court in Mst. Peeran (supra) and reiterated
in Abhishek Shukla (supra). The case of
Abhishek Shukla (supra) has been affirmed
by the Apex Court in SLP No. 3085 of 2018
(Waqf Maszid Vs. High Court) by means of
order dated 13.03.2023, hence, it cannot be
said that the order passed by the Waqf
Tribunal was bad.

30. It has also been pointed out that
actually there is a fallout between the
revisionists and the private respondents nos.
2 to 4. The revisionists also sought to
transfer some part of the property and at that
point of time, there was no protest raised by
the revisionist. It is only at a later stage when
there appears to be some disagreement
regarding the sharing of the funds that the
aforesaid dispute has been raised and for all
the aforesaid reasons, the revision is not
maintainable and deserves to be dismissed.

31. Sri Seth, learned Senior counsel
has relied upon the following decisions in
support of his submissions.

(i) Vidya Varuthi Thirtha Vs.
Balusami Ayyar and Others; 1921 SCC
Online PC 58

(ii) Ahmed G.H. Ariff and Others
Vs.
Commissioner
of
Wealth
Tax,
Calcutta; (1969) 2 SCC 471

32. Sri Pritish Kumar, learned counsel
has opposed the aforesaid revision on behalf
of M/s Syks Infratech Pvt. Ltd, the
respondent no. 5 and it is urged by that the
respondent no. 5 is a bonafide purchaser for
valuable consideration. It is submitted that
the respondent no. 5 had purchased the
property for a valuable sale consideration
which was paid to the private respondent
5 All. Mrs. Ameena Jung & Anr. Vs. Faridi Waqf & Ors.
753
nos. 2 to 4. On the date of the execution of
the said deed dated 24.12.2018, admittedly,
the said property was not a waqf property.
Any dispute between the revisionists on one
hand and the private respondent nos. 2 to 4
is primarily between the beneficiaries of the
Waqf inter se, however, the same cannot
affect the right, title and interest of the
respondent no. 5, inasmuch as, the deed
executed in favour of respondent no. 5 has
not been challenged before any court of law
and still continues to subsist.

33. It is further submitted that in so far
as the contention made by Sri Seth, learned
Senior Counsel for the respondent no. 3
regarding the status of a lease hold property
and whether such property could have been
dedicated to a Waqf stands answered by a
Division Bench of this Court in the case of
Abhishek Shukla (supra) and in such
circumstances, the property could not be
treated to be a waqf property, hence,
transferring the same by the respondent nos.
2 to 4 in favour of the respondent no. 5
cannot be said to be effectuated by any
misrepresentation or fraud and to that extent
the rights of the respondent no. 5 continues
to be good and for the aforesaid reasons, the
revision deserves to be dismissed.

34. Sri Farhan Habib, learned counsel
who has appeared on behalf of the Waqf
Board has merely adopted the submissions
of the learned Senior Counsel Sri Sudeep
Seth and did not make any independent
submissions.

35. The Court has heard the learned
counsel for the parties and also perused the
material on record.

36. The question that arises for
adjudication before this Court is; (i) whether
the instant revision is maintainable at the
behest of the revisionists who were not
parties before the Waqf Tribunal; (ii)
Whether the lease hold property could be
Waqfed or in the given facts and
circumstances, upon the expiry of the lease
period, the Waqf was extinguished and as
such the Waqf Tribunal was justified in
passing
the
impugned
order
dated
04.07.2018.

37. This Court proposes to take up the
issue no. (i) first since in case if it is held that
the revisionists were necessary and proper
parties then they are to be given an
opportunity to contest and considering the
fact that the documents which have been
filed by the revisionists before this Court,
apparently, were not before the Waqf
Tribunal and in such circumstances the said
documents would have to be considered in
context with the defence of the revisionists.
Hence, in case if the answer to question no.
(i) is in the affirmative then necessarily the
matter will have to be remanded for a
decision afresh and in case if the answer to
question no. (i) is in the negative then the
Court shall proceed to consider the issue no.
(ii) as noticed above irrespective of the
documents filed by the revisionists.

38. In order to answer the first
question, it will be relevant to notice certain
facts which are not in dispute. A Waqf was
created in the year 1945 by Dr. Mohd. Abdul
Jalil Faridi and his brother Lt. Mohd. Rafey
Faridi. The Waqf deed has been brought on
record and the relevant clauses have already
been reproduced hereinabove first:-

39. Clause 6 of the said Waqf deed
clearly indicates that in case if with the prior
permission any part of the waqf property is
sold, then the proceeds generated therefrom
shall be utilized for the Waqf and the same
would also be treated to be a Waqf property.
754 INDIAN LAW REPORTS ALLAHABAD SERIES
40. The record would further
indicate that the revisionists have filed a
letter which has been written by Mohd.
Abdul Jalil Faridi addressed to the Waqf
Board dated 08th August, 1975 requesting
the Waqf Board to incorporate the property
situate at Ram Teerath Marg to be
incorporated as part of Waqf Faridi. Another
letter dated 31.07.1975 written by Mohd.
Abdul Jalil Faridi and addressed to the Waqf
Board seeking permission of the Board for
raising a loan from the LIC and for the said
purpose permission to mortgage the said
property as collateral was sought. Another
letter dated 27th May, 1991 followed by a
letter dated 27th July, 1991, 20th September,
1991 indicating that Mohd. Abdul Jalil
Faridi always treated the said property as
Waqf property. The very fact that the Waqf
was a dedication for the beneficiaries of the
creator of the Waqf (settlor) which includes
the present revisionists who are the
daughters of Dr. Mohd. Abdul Jalil Faridi
and after his death his son Mohd. Abdul Jalil
Faridi became the mutawalli and the present
revisionists being his sisters were the
beneficiaries.

41. The concept of proper and
necessary parties has been enshrined in
Order 1 Rule 10 C.P.C. and with the aid of
the decisions of the Apex Court, the said
provision has been explained as under:-

42.

In
Ramesh
Hirachand
Kundanmal v. Municipal Corpn. of
Greater Bombay, (1992) 2 SCC 524, the
Apex Court has held as under:-

5. It was argued that the Court
cannot direct addition of parties against the
wishes of the plaintiff who cannot be
compelled to proceed against a person
against whom he does not claim any relief.
Plaintiff is no doubt dominus litis and is not
bound to sue every possible adverse
claimant in the same suit. He may choose to
implead only those persons as defendants
against whom he wishes to proceed though
under Order 1 Rule 3, to avoid multiplicity
of suit and needless expenses all persons
against whom the right to relief is alleged to
exist may be joined as defendants. However,
the Court may at any stage of the suit direct
addition of parties. A party can be joined as
defendant even though the plaintiff does not
think that he has any cause of action against
him. Rule 10 specifically provides that it is
open to the Court to add at any stage of the
suit a necessary party or a person whose
presence before the Court may be necessary
in order to enable the Court to effectually
and completely adjudicate upon and settle
all the questions involved in the suit.

6. Sub-rule (2) of Rule 10 gives a
wide discretion to the Court to meet every
case of defect of parties and is not affected
by the inaction of the plaintiff to bring the
necessary parties on record. The question of
impleadment of a party has to be decided on
the touchstone of Order 1 Rule 10 which
provides that only a necessary or a proper
party may be added. A necessary party is
one without whom no order can be made
effectively. A proper party is one in whose
absence an effective order can be made but
whose presence is necessary for a complete
and final decision on the question involved
in the proceeding. The addition of parties is
generally
not
a
question
of
initial
jurisdiction of the Court but of a judicial
discretion which has to be exercised in view
of all the facts and circumstances of a
particular case.

8. The case really turns on the true
construction of the rule in particular the
meaning of the words "whose presence
before the Court may be necessary in order
to enable the Court effectually and
completely to adjudicate upon and settle all
5 All. Mrs. Ameena Jung & Anr. Vs. Faridi Waqf & Ors.
755
the questions involved in the suit". The
Court is empowered to join a person whose
presence is necessary for the prescribed
purpose and cannot under the rule direct the
addition of a person whose presence is not
necessary for that purpose. If the inter-vener
has a cause of action against the plaintiff
relating to the subject matter of the existing
action, the Court has power to join the
intervener so as to give effect to the primary
object of the order which is to avoid
multiplicity of actions.

43. In Mumbai International Airport
(P) Ltd. v. Regency Convention Centre &
Hotels (P) Ltd., (2010) 7 SCC 417, the Apex
Court has observed as under:-

"13. The general rule in regard to
impleadment of parties is that the plaintiff in
a suit, being dominus litis, may choose the
persons against whom he wishes to litigate
and cannot be compelled to sue a person
against whom he does not seek any relief.
Consequently, a person who is not a party
has no right to be impleaded against the
wishes of the plaintiff. But this general rule
is subject to the provisions of Order 1 Rule
10(2) of the Code of Civil Procedure ("the
Code", for short), which provides for
impleadment of proper or necessary parties.
The said sub-rule is extracted below:

 "10. (2) Court may strike out or
add parties.-The court may at any stage of
the proceedings, either upon or without the
application of either party, and on such
terms as may appear to the court to be just,
order that the name of any party improperly
joined, whether as plaintiff or defendant, be
struck out, and that the name of any person
who ought to have been joined, whether as
plaintiff or defendant, or whose presence
before the court may be necessary in order
to enable the court effectually and
completely to adjudicate upon and settle all
the questions involved in the suit, be added."
 14. The said provision makes it
clear that a court may, at any stage of the
proceedings (including suits for specific
performance), either upon or even without
any application, and on such terms as may
appear to it to be just, direct that any of the
following persons may be added as a party:
(a) any person who ought to have been
joined as plaintiff or defendant, but not
added; or (b) any person whose presence
before the court may be necessary in order
to enable the court to effectively and
completely adjudicate upon and settle the
questions involved in the suit. In short, the
court is given the discretion to add as a
party, any person who is found to be a
necessary party or proper party.

15. A "necessary party" is a
person who ought to have been joined as a
party and in whose absence no effective
decree could be passed at all by the court. If
a "necessary party" is not impleaded, the
suit itself is liable to be dismissed. A "proper
party" is a party who, though not a
necessary party, is a person whose presence
would enable the court to completely,
effectively and adequately adjudicate upon
all matters in dispute in the suit, though he
need not be a person in favour of or against
whom the decree is to be made. If a person
is not found to be a proper or necessary
party, the court has no jurisdiction to
implead him, against the wishes of the
plaintiff. The fact that a person is likely to
secure a right/interest in a suit property,
after the suit is decided against the plaintiff,
will not make such person a necessary party
or a proper party to the suit for specific
performance."

44. In Baluram V. P.Chellathangam;
(2015) 13 SCC 579, the issue before the
Apex Court was regarding the right of
756 INDIAN LAW REPORTS ALLAHABAD SERIES
impleadment of a beneficiary viz a viz a
Trust and this is similar to the issue involved
in the instant case. The Apex Court has held
as under:-

"12. After due consideration of
the rival submissions, we are of the view that
the High Court erred in interfering with the
order of the trial court impleading the
appellant as a party defendant. Admittedly,
the appellant is a beneficiary of the Trust
and under the provisions of the Trusts Act,
the trustee has to act reasonably in exercise
of his right of alienation under the terms of
the trust deed. The appellant cannot thus be
treated as a stranger. No doubt, it may be
permissible for the appellant to file a
separate suit, as suggested by Respondent 1,
but the beneficiary could certainly be held to
be a proper party. There is no valid reason
to decline his prayer to be impleaded as a
party to avoid multiplicity of proceedings.
Order 1 Rule 10(2) CPC enables the court
to add a necessary or proper party so as to
"effectually and completely adjudicate upon
and settle all the questions involved in the
suit".

In Mumbai International Airport
[(2010) 7 SCC 417 : (2010) 3 SCC (Civ) 87]
this Court observed: (SCC pp. 422-25,
paras 13-15, 19 & 22)

"13. The general rule in regard to
impleadment of parties is that the plaintiff in
a suit, being dominus litis, may choose the
persons against whom he wishes to litigate
and cannot be compelled to sue a person
against whom he does not seek any relief.
Consequently, a person who is not a party
has no right to be impleaded against the
wishes of the plaintiff. But this general rule
is subject to the provisions of Order 1 Rule
10(2) of the Code of Civil Procedure ('the
Code', for short), which provides for
impleadment of proper or necessary parties.
The said sub-rule is extracted below:

10. (2)Court may strike out or add
parties.-The court may at any stage of the
proceedings, either upon or without the
application of either party, and on such
terms as may appear to the court to be just,
order that the name of any party improperly
joined, whether as plaintiff or defendant, be
struck out, and that the name of any person
who ought to have been joined, whether as
plaintiff or defendant, or whose presence
before the court may be necessary in order
to enable the court effectually and
completely to adjudicate upon and settle all
the questions involved in the suit, be added.'

14. The said provision makes it
clear that a court may, at any stage of the
proceedings (including suits for specific
performance), either upon or even without
any application, and on such terms as may
appear to it to be just, direct that any of the
following persons may be added as a party:
(a) any person who ought to have been
joined as plaintiff or defendant, but not
added; or (b) any person whose presence
before the court may be necessary in order
to enable the court to effectively and
completely adjudicate upon and settle the
questions involved in the suit. In short, the
court is given the discretion to add as a
party, any person who is found to be a
necessary party or proper party.

15. A 'necessary party' is a person
who ought to have been joined as a party
and in whose absence no effective decree
could be passed at all by the court. If a
'necessary party' is not impleaded, the suit
itself is liable to be dismissed. A 'proper
party' is a party who, though not a
necessary party, is a person whose presence
would enable the court to completely,
effectively and adequately adjudicate upon
all matters in dispute in the suit, though he
need not be a person in favour of or against
whom the decree is to be made. If a person
is not found to be a proper or necessary
5 All. Mrs. Ameena Jung & Anr. Vs. Faridi Waqf & Ors.
757
party, the court has no jurisdiction to
implead him, against the wishes of the
plaintiff. The fact that a person is likely to
secure a right/interest in a suit property,
after the suit is decided against the plaintiff,
will not make such person a necessary party
or a proper party to the suit for specific
performance.
-------******-------****------*****----

19. Referring to suits for specific
performance, this Court in Kasturi [Kasturi
v. Iyyamperumal, (2005) 6 SCC 733 : AIR
2005 SC 2813] , held that the following
persons are to be considered as necessary
parties: (i) the parties to the contract which
is sought to be enforced or their legal
representatives; (ii) a transferee of the
property which is the subject-matter of the
contract. This Court also explained that a
person who has a direct interest in the
subject-matter of the suit for specific
performance of an agreement of sale may be
impleaded as a proper party on his
application under Order 1 Rule 10 CPC.
This Court concluded that a purchaser of the
suit property subsequent to the suit
agreement would be a necessary party as he
would be affected if he had purchased it with
or without notice of the contract, but a
person who claims a title adverse to that of
the defendant vendor will not be a necessary
party.
-------******-------****------*****----

22. Let us consider the scope and
ambit of Order 1 Rule 10(2) CPC regarding
striking out or adding parties.