# BOARD OF MUSLIM WAKFS, RAJASTHAN v. RADHA KRISHNA & ORS

- **Citation:** [1979] 2 S.C.R. 148
- **Court:** Supreme Court of India
- **Decided:** 1978-10-24
- **Case number:** Civil Appeal No. 166 of 1969
- **Bench:** Jaswant Singh, R. S. Pathak, A. P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/board-of-muslim-wakfs-rajasthan-v-radha-krishna-ors-7489
- **Pages:** 21

## Headnote

Wakfs Act, 1954-Ss. 4 and 6-Scope of-Con11nissio11er of Wakfs, if had
jurisdiction to hold enquiry lvhether certain property was wakf propertyFailure of stranger to file suit lVithin time allowed by s. 6(1)-Special rule of
limitation-If applicable to hin1-lnclusion of property in the list of ·wakfsC
If final and conclusire.
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1'o provide for the better administration and supervision of wakfsi the \Va-kfs
Act 1954, sought to bring the management of wakfs under the supervision
of the State. The Act envisages the appointment of a COmmissioner of Wakfs
for the purpose of survey of wakf properties existing at the
tin1e
of
the
cornn1encement of the Act.
The Commissioner is enjvined to submit his r':"port
to the State Government after making such enquiries as he may consider
necessary.
While making enquiries the Com1nissioner is
invested with
powers ;.is are vested in a C.ivil Court under the Code of Civil Procedure.
Section 6 of the Act provides that if any question arises as to
wheihe1
a
particular property specified in the list of w2.kfs published under s. 5(2) was
wakf property or not and such other related matters, the Board of l\fusl.im
Wakfs or the Mutawalli of the wakf or
any person interested therein
may
institute a suit in a Civil Court for decision of the question.
llespondents 1 and 2 \vere n1ortgagee-purchasers of the property in dispute, which was claimed to be \Vakf property. Respondent
No.
3
in
his
application to the Commissioner of Wakfs alleged that the property in dispute
being wakf property· its transfer by the mutawalli to the respondents· was
invalid and prayed that the property be taken over by the \Vakf committee.
While denying that the property in dispute was '\-Vakf property respondents 1
and 2 contended before the Commissioner that he had no jurisdiction t.ci make
an enquiry whether a particular property was \vakf property or not.
The
Commissioner rejected these contentions and submitted a report to the State
Government.
On receipt of the Commissioner's report the Board of Muslim
Wakfs included the property in the list of wakfs in the St.ate.
In the respondents' Writ Petition, the High Court held (i) that the jurisdiction of the Board of Wakfs was confined to matters of administration of
the \vakfs and not to adjudication of questions of title and that the Act did
not invest either the Board or t.he Commissioner with power to decide thC
question \Vhether a property belonged to a ·wakf or not and therefore the
Commissioner had no jurisdiction under s. 4(3) of the Act to
enquir~
whether 01 not the property was wakf property and (ii) that the failure of a
stranger to the wakf to institute a suit in a court of conlpetent jurisdiction
within a period of one year on the question whet.her a particular property
was \vakf property or not could not make the inclusion of such property
in the list of wakfs final and conclusive.
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MUSLIM WAKFS v. RADHA KRISHNA (Sen, J.)
149
In appeal to this Court it was contended on ·behalf of the appellants that
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(i)' the words "for the purpose of making a survey of wakf properties" are
wide enough ·to confer power on the Commissioner to investigate and adjudi~
cate upon the question whether a particular property was or was not wakf
property and (ii) failure of the respondents to file a suit within the time
allowed by s, 6( 1) made the inclusion of the property in the list Of wakfs
final and conclusive.
The word "therein" occurring in "any person interested
therein" in
~.. 6 (l) qualifies the words "wakf property" and not "person
B
interested in the w<ikfs" as wrongly assumed by the High Court.
Dismissing the appeal to this Court
HELD : While the High Court was right in determining the scope of s.
6 ( 1). it was clearly in error in curtailing the ambit and scope of enquiry
by the Commissioner under s. 4(3). [160 EJ
C
1. (a) The Commissioner of wakfs acted within his jurisdiction in holding
the disputed property to be wakf property. [168 CJ
(b )· The whole purpose

## Text

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148
A
BOARD OF MUSLIM WAKFS, RAJASTHAN
v.
RADHA KRISHNA & ORS.
October 24, 1978
B
[JASWANT SINGH, R. S. PATHAK AND A. P. SEN, JJ.]
Wakfs Act, 1954-Ss. 4 and 6-Scope of-Con11nissio11er of Wakfs, if had
jurisdiction to hold enquiry lvhether certain property was wakf propertyFailure of stranger to file suit lVithin time allowed by s. 6(1)-Special rule of
limitation-If applicable to hin1-lnclusion of property in the list of ·wakfsC
If final and conclusire.
D
E
F
G
H
1'o provide for the better administration and supervision of wakfsi the \Va-kfs
Act 1954, sought to bring the management of wakfs under the supervision
of the State. The Act envisages the appointment of a COmmissioner of Wakfs
for the purpose of survey of wakf properties existing at the
tin1e
of
the
cornn1encement of the Act.
The Commissioner is enjvined to submit his r':"port
to the State Government after making such enquiries as he may consider
necessary.
While making enquiries the Com1nissioner is
invested with
powers ;.is are vested in a C.ivil Court under the Code of Civil Procedure.
Section 6 of the Act provides that if any question arises as to
wheihe1
a
particular property specified in the list of w2.kfs published under s. 5(2) was
wakf property or not and such other related matters, the Board of l\fusl.im
Wakfs or the Mutawalli of the wakf or
any person interested therein
may
institute a suit in a Civil Court for decision of the question.
llespondents 1 and 2 \vere n1ortgagee-purchasers of the property in dispute, which was claimed to be \Vakf property. Respondent
No.
3
in
his
application to the Commissioner of Wakfs alleged that the property in dispute
being wakf property· its transfer by the mutawalli to the respondents· was
invalid and prayed that the property be taken over by the \Vakf committee.
While denying that the property in dispute was '\-Vakf property respondents 1
and 2 contended before the Commissioner that he had no jurisdiction t.ci make
an enquiry whether a particular property was \vakf property or not.
The
Commissioner rejected these contentions and submitted a report to the State
Government.
On receipt of the Commissioner's report the Board of Muslim
Wakfs included the property in the list of wakfs in the St.ate.
In the respondents' Writ Petition, the High Court held (i) that the jurisdiction of the Board of Wakfs was confined to matters of administration of
the \vakfs and not to adjudication of questions of title and that the Act did
not invest either the Board or t.he Commissioner with power to decide thC
question \Vhether a property belonged to a ·wakf or not and therefore the
Commissioner had no jurisdiction under s. 4(3) of the Act to
enquir~
whether 01 not the property was wakf property and (ii) that the failure of a
stranger to the wakf to institute a suit in a court of conlpetent jurisdiction
within a period of one year on the question whet.her a particular property
was \vakf property or not could not make the inclusion of such property
in the list of wakfs final and conclusive.
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MUSLIM WAKFS v. RADHA KRISHNA (Sen, J.)
149
In appeal to this Court it was contended on ·behalf of the appellants that
A
(i)' the words "for the purpose of making a survey of wakf properties" are
wide enough ·to confer power on the Commissioner to investigate and adjudi~
cate upon the question whether a particular property was or was not wakf
property and (ii) failure of the respondents to file a suit within the time
allowed by s, 6( 1) made the inclusion of the property in the list Of wakfs
final and conclusive.
The word "therein" occurring in "any person interested
therein" in
~.. 6 (l) qualifies the words "wakf property" and not "person
B
interested in the w<ikfs" as wrongly assumed by the High Court.
Dismissing the appeal to this Court
HELD : While the High Court was right in determining the scope of s.
6 ( 1). it was clearly in error in curtailing the ambit and scope of enquiry
by the Commissioner under s. 4(3). [160 EJ
C
1. (a) The Commissioner of wakfs acted within his jurisdiction in holding
the disputed property to be wakf property. [168 CJ
(b )· The whole purpose of the survey of the wakfs by the Commissioner
under s. 4(1) is to inform the Board of Wakfs as to existence of the wakfs
in the State in order that all such wakfs should be brought .μnder the supervision and control of the Board. [160 DJ
(c) The words "for the purpose of making a survey" are the key to the
construction of the section.
If the Commissioner has the power to make
a survey it is but implicit that in the exercise of such power he should
enquire whether or not a wakf exists.
The making of such an enquiry is a
necessary concornitau.t of the power to survey.
The High Court was, therefore, wrong in holding to the contrary. [162 A-BJ
1
(d). It \vould be illogical to hold that while making a survey of wakf
properties e:t:isting in the State the Commissioner of wakfs should have no
power to enquire whether a particular property was wakf property or not.
After makir.:g the survey the Commissioner is required to submit a report
to the State Government in regard to the several matters
referred to in
clauses (a) to (f) thereof. There m•y be a dispute as between the Board, the
n1utawalli or a person interested in the wakf, as regards the existence of wakf
i.e. whether a particular property is wakf property, whether it is a Shia wakf
or a Slillili wakf, the extent of the property attached to the wakf, the nature
and object of the wakf and so on. While making such an enquiry, the Commissioner is invested with the powers vested in a Civil Court under the Code
of Civil Procedure, 1908, In view of the comprehensive provisions contained
in the Act the enquiry which the Commissioner makes is not purely of an
administrative nature but partakes of a quasi-judicial character in respect of
persons falling within the scope of s. 6.(1). [161 F; C-EJ
(e) The power of the Commissioner to survey wakf properties or to
enquire and investigate into the several matters set out in sub-section (3)
cannot be curtailed by taking recourse to s. 4(5). Sub-section (5) only lays
down that, if during an enquiry 'any dispute arises as to whether a particular
wakf is a Shia wakf or Sunni wakf and if there are clear indications in the
deed of wakf as to its nature, the dispute shall be decided on the basis of
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SUPREME COURT REPORTS
[1979] 2 S.C.R.
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wch deed.
It, therefore, n1akes the wakf deed conclusive as to the nature
of the wakf.
Sub-section (5) cannot be projected into sub-section (1) determining the question whether a certain property is a wakf property or not.
Nor does it enter into an enquiry as to several of the matters adverted to
in some of the clauses of sub-section (3). [162 D-E]
B
(f) Moreover s. 6 and s. 6(1) clearly envisage that the enquiry by the
Commissioner was not confined .:to the question as to whether a particular
wakf was a Shia Wakf or Sunni Wakf.
It might also embrace a dispute as
to whether a wakf existed or not. [162 HJ
c
2. (a) Where a stranger is a non.Muslim and is in possession of certain
property, his right, title and interest therein cannot be put in jeopardy merely
because the property is included in the list of wakfs.
Such a person is not
required t.o file a suit for a declaration of his title within a period of one year.
The special rule of limitation laid down in proviso to s. 6(1) is not aflplicablc
to him.
In other words,
th~ list published by the Board of Wakfs under
s. 5(2) can be challenged by him by filing a suit for declaration of title
even after the expiry of the period of one year, if the necessity of filing such
suit arises. [167 A-Bl
(b) The word "therein" occurring in s. 6 ( 1) after the words "any person
D
interested therein" must necessarily refer to the "Wakf" which im.n1ediatcly
precedes it. It cannot refer to the wakf property. Section 6(1) enumerates
the perSons who can file suits and also the questions in respect of which
such suits can be filed. In enumerating the ,persons who are empo-wered to
file suits under this provision only the Board, the mutawalli of the Wakf; and
''any pereon interested therein", thereby necessarily meaning any person
intere.5ted in the wakf, are listed. Its provisions empo\ver only those who are
E
interested in the wakfs to institute suits. [164 E-F]
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Sirajul Haq
Khan & Ors. v. The Sunni
Central
Board of rVakf,
U.P.
Ors., [1959] SCR 1287, referred to.
( c) The word "therein" in s. 6( 1) must mean "any person interested
in a wakf" as defined in s. 3 (h). The ·Object of the section is to narrow down
the dispute between the Board of Wakfs, the Mutawalli and the person intc~
rested in the wakf as defined in s. 3(h}. [165 HJ
( d) Tho right of the respondents I and 2 in icspect of \he disputed
property, if at aJI they have any, will remain unaffected by the impugned Notification. Thoy are at liberty to bring a suit for the establishment of their right
and title, if any, to the property. [168 El
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 166 of 1969.
From the Judgment and Orde.r dated 4-5-1966 of the Rajasthan
High Court in D.B. Civil Misc. Writ No. 74 of 1965.
M. N. Phadke, M. Qamaruidin, Mrs. M. Qamaruddin and V. M.
Phadke for the Appellant.
s. s. Ray, S. M. Jain, D. D. Patodia and S. K. Jain for Respond€lnts
1 and 2.
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MUSLIM WAKFS v. RADHA KRISHNA (Sen, J.)
Appeal set down Ex parte against RR. 3 and 4.
The Judgment of the Conrt was delivered by
151
SEN, J. This appeal by certificate is directed against the judgment of
the Rajastlian High Court dated May 4, 1966 holding !hat inclusion of
A
the disputed property in the list of wakfs published by the Board ofl
Muslim Wakfs, Rajasthan under sub-s. (2) of s. 5 of the Wakf Act,
B
1954 is not binding on the respondents Nos. 1 and 2, the mortgagee--
purchasers and restraining the Board from taking any steps under s .
36B of the Act for evicting them from the same.
The subject niatter in dispute is a two-storeyed building, known as
Dhararnshala or M~rkhana, situate on Mirza famail Road a! Jaipur.
The building was constructed by the late Haji Mohammad Ali Khan, a
.Sessions Judge of the erstwhile Princely State o1' Jaipur, who owned a
.considerable estate, on a plot of land admeasuring 5 bighas and 3 biswas
obtained from the Mehakma Mensa Aliya Council with the approval
.of the Ruler of Jaipur under a Patta dated February 23, l88G for construction of a Haveli and Dharamshala. It appears that Haji Mohammad Ali Khan before his death in the year 1912, had executed two
wills, one on February 17, 1910 and the other on July 1, 1911, by which
after making several b(Xjuests he acknowledged that he had dedicated
the said property in wakf, for its use as a Dharamshala and appointed
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his son Ebsen Ali Khan as its mutawalli.
After the death of Haji
Mohammad Ali Khan, there was a suit for partition of the property E
brought by his son Faiyaz Ali Khan against his brother Ehsan Ali Khan,
being Original Sμit No. 128 of 1930 and the building was left out of
partition being wakf property.
It, however, appears that the mutawa/li Eh~an Ali Khan mortgaged
the property with possession, with Seth Bijaylal, father of respondent
·No. 2, and Bhnramal, father of respondent No. 1, for Rs. 7,999/- and F
'
executed a mortgage deed dated July 30, 1944 in their favour for the
purpose of purchasing a strip of land in fron~ of the building from the
Municipal Council, Jaipur and thereafter constructed verandahs on the
-ground iloor and the first floor.
For making this construction. he
raised a further loan of Rs. 9,999/- by effecting a second mortgage by
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·executing the mortgage deed dated July 7, 1945 in favour of the said
mortgagees. The respondenl:3 Nos. 1 and 2 purchssed the ground
•floor of the building from Ehsan Ali Khan for Rs. 19,999/- by means
of a registered sale deed dated November 23, 1954. The considera-
~ion: was applied towards satisfaction of the two previous mortgages .
Thereafter, they purchased the first floor of the said building from him
H
for Rs. 13,999/- by means of a registered sale deed dated July 31,
1956.
.&qi",:
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152
SUPREME COURT REPORTS
(1979] 2 S.C.R.
A
The wakf Act, 1954 was extended to the State of Rajasthan on
February 1, 1955. The Board of Muslim wakfs, Rajasthan was constituted by the State Government on August 6, 1962 in accordance with
s. 9 and thereafter the Government appoinied a Commissioner of Wakfs
under sub-s. (1) of s.4 for the purpose of making survey of wakf properties existing in the State, at the date of the commencement of the
B
Act.
On August 30, 1962, one Shauket Ali Khan, the respondent No. 3
applied to the Commissioner of Wakfs alleging that the aforesaid property was wakf property and therefore, its transfer by Ehsan Ali Ki.an,
who was its mutawalli, in favour of the respondents Nos. 1 and 2 was
invalid and consequently prayed that the property be declared to be
Wakf property and possession of the same be handed over to·
C
the wakf Committee.
The Commissioner of Wakfs accordingly
issued notice to the respondents. Nos. 1 and 2 the mortgageeputchasers.
In response to the notice, the respondents Nos. 1
and '.! appeared before the Commissioner of Wakfs on September 19, 1962 and raised a preliminary objection as to the jurisD
diction denying that the disputed property was wakf property and
contended that the Commissioner of Wakfs had no jurisdiction to make
an enquiry as to whether a particular property is wakf property or not.
The Commissioner of Wakfs by his order dated September 19, 1962
over-ruled the objection.
Thereupon, the respondents Nos.1 and 2
filled a writ petition before the Rajasthan High Court, bu~ the High
E
Court by its order elated October 11, 1962 dismissed the petition ~n
limine observing that the Commissioner had obviously no jurisdiction
to decide any question relating to the title of the respondents Nos. 1 and·
2 or to eject them from the property without taking re"course to a civil
suit. The Commissioner of Wakfs, however, felt that he was not bonnd
by these observations of the High Court since he was not served with
F
a notice and
accordingly decided to proceed with the enquiry. . In
'consequence thereof, the respondents Nos. 1 and 2 had to participate
in the proceedings.
On October 19, 1962 they filed
their reply
before the Commissioner of Wakfs and joined issue on the question as to whether the disputed property was wakf property or not. In
their reply they pleaded, inter alia that the property was not a Wakf and
G
that the wills had indeed been cancelled in a suit.
The Commissioner
of Wakfs by his report elated December 15, 1964 on the basis of the
evidence led before him, held the disputed property to be wakf property recommended that it be recorded as such, and
accordingly,
forwarded a report to that effect to the State Government as required
H
under sub-s.(3) of s.4.
On receipt of the report of the Commissioner of Wakfs forwarded to
it by the State Government under sub-s. (1) of s. 5, the Board of Muslim
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MUSLIM WAKFS v. RADHA KRISHNA (Sen, J.)
153
Wakfs published a notification for inclusion of the property in dispute
in the list of wakfs existing in the State in the Rajasthan Rajpatra dated
December 2, 1965.
Thereafter, the respondents Nos. I and 2, filed
a writ petition in the High Court challenging the legality and validity of
(he proceedings taken by the Commissioner of Wakfs. It was contended that on the basis of such report, the Board of Muslim Wakfs was
not entitled to include their property in the list of wakfs published under
sub-s. (2) of s.5.
In allowing the petition, the High Court held that the entire scheme
of t11e Wakf Act, 1954, indicates that the Board of Wakfs jurisdiction
is confined to matters of administration of the wakfs and not to adjudication of questions of title. In view, it was evident that the Act did
not invest the Board of Wakfs or th.e Commissioner of Wakfs with the
power to decide the question whether a property belonged to a wakf
or not; and more so, where a person claiming title is a stranger to the
wakf. It accordingly held that a Commissioner of Wakfs appointed
under sub-s.(1) of s.(4) of the Act has no jurisdiction under sub-s.(3)
of s. 4 to enquire whether or not a certain property is wakf property
when such a dispute is raised by such a person. It further held that the
object of s. 6 is to narrow down the dispute between the Board of Wakfs,
the mutawalli and the person interesred in the wakf, as defined in s. 3.
Consequently, the High Court held that the failure of a stranger to the
wakf to institute a suit in a court of competent jurisdiction for a decision
of such question, namely, whether a particular property is a wakf property or not, cannot make the inclusion of such property in the list of
wakfs published by the Board under sub-s. (2). of s. 5 of the Act final
and co_nclusive under sub-s. ( 4) of s. 6 of the Act.
It also held that
the Board is not invested with jurisdiction to enquire into and decide the
questions of title to, or possession of, the properties belonging to third
parties under s. 2 7 of the Act.
It is argued for the appellant, firstly, that the words 'for the purpose
of making a survey of wakf properties' are wide enough and confer
ample power on the Commissioner 'to investigate
and adjudicate'
upon the
question whether a certain property is
wakf property
or not during the course of his survey of wakf properties
in the State of Rajasthan; and secondly, the failure ofi the
respondents
Nos.
1 and
2
to file a
suit
within the time
allowed by sub-s. (1)
of s. 6 of the Act makes the inclusion of
the disputed property in the list of wakfs published by the Board of
Wakfs mder 'ub-s.(2) of s . .5, final and conclusive.
Ii! support of the
co•tentions, it is urged that the word 'therein' in the expression 'any person interei:ted therein' appearing in !ub-s.(1) of s.6, qualify the words
'wakf property' and, therefore, the expression 'any person interll.Sted
J l--8 l 7SCI/78
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154
SUPREME COURT REPORTS
[1979] 2 s.c.R.
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therein' cannot, in the context in which it appears, mean 'person interested in a wakf' as defined ins. 3(h) of the Act, as wrongly assumed
by the High Court. It is therefore, urged that the right of suit given
under s. 6(1) of the Act can be availed of by a person affected by the
publication of the list of wakfa under sub-s.{2) of s.5, i.e. it includes
B
even a stranger.
In reply, it is submitted on behalf of the respondents Nos. I and 2,
that the scope of s. 6 is to narrow down the dispute between the Board
of Wakfs, the mutawalli and any person interested in the wakf, as
define& in s. 3 (h). It is urged that the High Court was, therefore, right
·in holding that s. 6 refers only to such a dispute and cannot affect the
C
right and title of a stranger to the wakf, particularly of a person belonging to another religious denomination.
The submission is that the
word 'therein' in sub-s. (I) of s. 6, in the context and setting in which
it appears, does not fit in with the words 'wakf property' in the collocation of words, but qualifies the words 'the wakf' immediately preceding
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it. It is said that the word 'therein' has been used to avoid repetition
of the words 'the wakf', and not to extend the ambit of the section to
persons who fall outside the scope of the expression 'person interested
in a wakf' as defined in s.3 (h). It is, therefore, urged that the respondents Nos. 1 and 2 are wholly outside the purview of s.6(1) and, ther~
fore, they must necessarily fall outside the scope of the enquiry under
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s.4( 1), as the provisions contained in ss.4, 5 and 6 form part of an
integrated scheme. It is pointed out that on the terms of s.4 the Commissioner of Wakfs has no power' to enquire whether or not a certain
property is wakf property when such dispute is raised by a stranger to
the wakf.
In support of the contention, the language of s. 4 is contrasted with that of s.27 and it is said that, while the Board of Wakfs
F
has the power to hold an enquiry as to whether a particular property
is wakf property or not under s.27, the Commissioner of Wakfs has no
power to hold such an enquiry.
In order to apprecfate the implications of the rival contentions, it is
necessary not only to examine the scheme of the Act but also the purG
po!le and object of the legislation.
The Wakf Act, 1954, "the Act", as the preamble shows, was enacted 'to provida for the better administration and supervision of
wakfs'. The avowed object and purpose of the Act was to bring the
management of Wakfs, though it vests immediately in a mutawalli, subH
ject to the supervision of the State. It was enacted to replace the
Mussalman Wakf Act, 1923, which merely provided for the submission
of audited accounts by mutawallis, and was found to be wanting in
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MUSLIM WAKFS v. IWJHA KRISHNA (Sen, J.)
155
several respects and really not of much practical value. It was found
that proceedings could be successfully defeated simply on the plea taken
by the mutawalli that there was no wakf.
To remove the lacunae,
the Mussalman Wakf (Bombay Amendment) Act, 1935 amended the
Act. The Bengal Wakf Act, 1934 was enacted to create a machinery
for the supervision of wakfs in Bengal. The United Provinces followed
suit and the United Provinces Muslim Wakf Act, 1936 was passed
creating a Central Wakf Board. Similarly, Bihar also passed a legislation almost on the same lines. The working of these Acts brought out
the necessity for one uniform and consolidated legislation by the Centre.
It was with this view that the Wakf Act, 1954 was enacted.
The scheme of the Act may be briefly indicated. Section 2 makes
the Act applicable to all wakfs in India except to Durgah Khawa ja
Saheb, Ajmer. Section 3 defines certain terms, and the term 'wakf' and
the expression 'person interested in a wakf' have been defined as
follows:
"3. (h) 'person interested in a wakr means any person
who is entitled to receive any pecuniary or other benefits
from the wakf and includes,-
(i) any person who has a right to worship or to perform
any religious rite in a mosque,
idgah, imambara,
dargah, Khangah, maqbara, graveyard or any other
religious institution connected with the wakf or to
participate in any religious or charitable institution
under the wakf ;
(ii) the wakif and any descendant of the wakif and the
mutawalli.
(1) 'wakf' 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) a wakf by nser;
(ii) grants (including mashrut-ul-khidmat) for any purpose
recognised by the Muslim law as pious, religious or
charitable; and
(iii) a wakf-alal-aulad to the extent to which the property
is dedicated for any purpose recognised by Muslim
law as pions, religious or charitable;
and 'wakif' means any person making such dedication."
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The Act consists of several chapters and can conveniently be divided
into three parts. The first part relates to the survey of wakfs. Chapter
II is headed 'Survey of Wakfs'. Sub-section (1) of s. 4 empowers the
State Ciovermnent to appoint for the State by a notification a Commission of Wakfs for the purpose of making survey of wakf properties existB
ing at the time of the commencement of the Act Sub-section ( 3) enjoins the Commissioner to submit his report to the State Government
after making such enquiry as he may consider necessary and the report
is to contain the following particulars namely :
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(a) the number of wakfs in the State, or as the case may
be, any part thereof, showing the Shia Wakfs and
Sunni Wakfs separately;
(b) the nature and objects of each wakf;
( c) the gross income of the property comprised in each
wakf;
( d) the amount of land revenue, cesses, rates and taxes
payable in respect of such property;
( e) the_ expensei; incurred in the realisation of the income
and the pay or other remuneration of the mutawalli
of each wakf; and
(f) such other particulars relating to each wakf as may be
prescribed."
Sub-section ( 4) enjoins that the Commissioner, while making such enquiry, shall have certain powers as are vested in a civil court under the
Code of Civil Procedure, 1908, namely, summoning and examining any
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witness, requiri:ilg the discovery and production of any document, reF
quisitioning any public 11ee0rd from any court or office, issuing commii-
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sions for the examination of any witness or accounts, making any local
inspection or, local invei;tigation etc.
Sub~ection (5)
of s.4 runs
thus:
"(5) If, during any such inquiry, any dispute arises as to
whether a particular wakf is a Shia wakf or Sunni wakf and
there are clear iridications in the deed of wakf as to its nature,
the dispute shall be decided on the basis <lf such deed."
Section 5 provides for publication of a list of wakfs and is as
follows :
"5. (1) On receipt of a report under sub-section (3) of
section 4, the State Government shall forward a copy of the
same to the Board.
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MUSLIM WAKFS v. RADHA KRISHNA (Sen, l.)
157
(2) The Board shall examine the report forwarded to it
under sub-section (1) and publish, in the Official Gazette, a
list of wakfs existing in the State, or as the case may be, the
part of the State to which the report relates, and containing
such particulars as may be prescribed."
Section 6, which relates to adjudication of dispute regarding wakfs,
so far as material, reads :
"6. (1) If any question arises whether a particular pro--
pe1iy specified as wakf property in a list of wakfs published
under sub-section (2) of the section 5 is wakf property or
not or whether a wakf specified in such list is a Shia wakf
or Sunni wakf the Board or the mutawalli of the wakf or any
person interested therein may institute a suit in a civil court
of competent jurisdiction for the decision of the question and
the decision of the civil court in respect of such matter shall
be final :
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Provided that no such suit shall be entertained by the civil
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court after the expiry of one year from the date of the publication of the list of wakfs under sub-section ( 2) of section 5.
( 4) The list of wakfs published under sub-section (2) of
section 5 shall, unless it is modified in pursuance of a decision of the civil court under sub-section (1), be final and
conclusive.''
Chapt"r IIA is about the constitution of the Central Wakf Council,
with which we are not concerned.
Chapter III provides for establishment of a· Board of W akfs and defines the nature of its duties,
powers and functions. This chapter also provides for certain incidental matters.
Sub-section (1 ) of section 15 provide5 that the general
superintendence of all wakfs in a State shall vest in the Board so established for the State, and it shall be the duty of the Board to ensure
that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the
objects and for the purpose for which such wakfs were created or intended. Sub-section (2) enumerates the various functions of the
Board.
The neitt stage is that of regisfi-ation of wakfs.
That subject is
dealt with in Chapter IV.
Section 25 lays down that every wakf,
whether created before or after the commencement of the Act, shall
be registered at the office of the Board. Section 26 requires the Board
to maintain a register of wakfs. Under s. 27, the Board is invested
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with the power to decide whether a certain property is wakf property
and reads as follows :
"27. (I) The Board may itself collect information regarding any property which it has reason to believe to be wakf
property and if any question arises whether a particular property is wakf property or not or whether a wakf is a Sunni
wakf or a Shia Wakf, it may after making such inquiry as
it may deem fit, decide the ques!Jon.
(2) The decision of the Board on any question under
sub-section (I) shall, unless revoked or modified by a civ;J
court of competent jurisdiction, be final."
Section 28 empowers the Board to direct a mutawalli to apply for
the registration of a wakf or to supply any information regarding a
wakf, and the Board may itself cause the wakf to be registered or
may at any time amend the register of wakfs.
The third stage then arises.
After completing the survey and
finalising the registration of wakfs, the Board which is an administrative body, is empowered to supervise and administer wakf property.
Chapter V deals with mutawallis and wakf accounts.
Th''S chapter
provides iu detail as to how mutawalli shall submit budget and the
accounts and in what manner the Board will be exercising its control
over the wakf properties.
Section 36A relates to transfer of immovable property of wakfs.
According to this section, no transfer of the
wakf pro·perty i« valid without the previous sanction of the Board.
Section 36B empowers 'the Board to recover certain wakf properties
transferred without the previous sanction of the Board by sending a
requisition to the Collector. Chapter VI relates to the finance of the
Board. Chapter VII to judicial proceedings and Chapter VIII to miscellaneous matters. It would thus appear that the Act is a complete
code dealing with the better admini'Stration and supervision of wakfs.
The High Court, iu its considered opinion, in t'he light of the
historical background and precedents, observed :
"The present Act No. 29 of 1954 is,
no doubt an
improvement o(l the Mussalman Wakf Act, 1923, but in
our view, this also does not empower the Board of Wakfs
to decide the question whether a particular property is wa_<:f
prorerty or not, if such a dispute is raised by a person who
is a stranger to wakf."
There is a considernble body of authority interpreting s. 10 of
the Mussalman Wakf Act, 1923, in favour of the view that where
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MUSL!M WAKFS v. RADHA KRISHNA (Sen, J.)
159
the existence of a wakf was itself in dispute, the District Judge had
no jurisdiction to inquire into its existence, and the matter could be
·settled only by instituting a regular suit.
The question came up for
consideration before several High Courts in India as will ~ppear from
Nasrulla Khan v. Waiid Ali,(<') Wahid Hasan v. Abdul Rahman,(2 )
Syed Ali Mohammed v. Collector
uf Bhaga/pur,(3 )
Mo~a11cmad
Baqar v. Mohammed Qasim,(') Nanha Shah v. Abdul Hasan,(') and
Abdul Hussain v. Mohmad Ebrahim Riza. (')
The general trend of
opinion was that the District Judge in dealing with an apphcation
under s. 10 of that Act had, in the absence of a clear provision in
that behalf, no jurisdiction to try an issue as to whether certain property was wakf property. It was pointed out that if the legislature
had the intention to confer such power, there would have been a
provision like
s. 5 of Charitable and Religious Trusts Act, 1920.
In Abdul Hussain v. Mohmad Riza (supra) it was observed:
"Considering the terms of the enactment and the scope
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and purpose of the Act is clear that the legislature intended
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of inrnme of wakf properties for the purpose of providmg
some control on the management of properties which are
admi'Cled!y wakf.
It could not have intended to include in
its scope the enquiry into the vital questions whether the
disputed property is wakf property and the person in possoJsion of it is a mutwalli, which are questions of fundamental
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character such as could be the subject-matter of a suit
alone/'
Though sub-s. (3) of s. 4 of the Act is rather unhappily worded,
of the Wakf {\ct, 1954.
The Wakf Act, 1954 does, in our opirnon, furnish a complete
machinery for the better administration and supervision of wakfs.
Though sub-s. (3) of s. 4 of the Act is rather unhappily worded,
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it is not a sound principle of construction to interpret expre>sions
used in one Act with reference to their use in another Act, and decisions rendered with reference to construction of one Act cannot apply
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with reference to the provisions of another Act, unless the two Acts ·
;are in pari materia.
Further, when there is no ambiguity in the
(1) I.L.R. 52 All. 167 .
(2) l.L.R. 57 All. 754.
(3) A.l.R. 1927 Pat. 189.
(4) I.L.R. 7 Luck. 601 (F.B.)
(5) A.1.R. 1938 Pdt. 137.
(6) I.LR. (1939) Nag. 564.
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statute, it may not be permissible to refer to, for purposes of its
construction, any previous legislation or decisions rendered therein.
The que!ltions that fall for determiuation upon the appeal are two;
first, whether a Commissioner of Wakfs appointed under suM. (1) of
s. 4 of the Wakf Act, 1954, has the jurisdiction under sub-s. (3) of
s. 4 to enquire whether a certain property is wakf property or not when
such a dispute is raised by a stranger to the wakf and second, if so,
whether the failure of such a person to institute a suit in a civil court
of competent jurisdiction for decision of such question within a period
of one year, as provided for under sub-s. ( 1) of s. 6, makes the inclusion of such property in the list of wakfs published by the Board under
sub-s.(2) of s. 5 of the Act final and conclusive under SUM. (4) of
S· 6.
It is needless to stress that the whole purpose of the survey of wakli>
by the Commissioner of Wakfs under sub-s. (1) of s. 4 is to inform
the Board of Wakfs, as to the existeno.:: of the existing wakfs in a State,
in order that all such wakfs should be brought under the supervision
and control of the Board of Wakfs.
While the High Court was, in our view, right in determining the'
scop;: of sub-s. ( 1) of s. 6 of the Act, it was clearly in error in curtailing the ambit and scope of an enquiry by the Commissioner of
Wakfs under sub-s. (3) of s. 4 and that by the Board of Wakfs under
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s. 27 of the Act.
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In dealing with the scopei of enquiry by the Commissioner of Wakfs.
under sub-s. (3) of s. 4, the High Court adverts to the heading of
Chapter II and the marginal note of sub-s. ( 1) of s. 4. It observes :.
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"The heading of section 4 with which this chapter started
was 'Preliminary ~urvey of wakfs '.
The use of the word
'Preliminary' in the heading is one of significance.
The weight of authority is in favour of the view that the marginal note·
appended to a section cannot be used for construing the section. Lord
Macnaghten in Balraj Kunwar v. Jagatpal Singh(1I) considered it wellJ
settled that marginal notes cannot be referred to for the purposes of
construction.
This. Court after referring to the above case with approval, said in Commissioner of Income-Tax v. Ahmedbhai Umarbhai &
Co.(') :
"Marginal notes in an Indian statute, as in an Act of
Parliament, cannot be referred to for the purpose of construthe statute."
(I) JLR 26 All. 393 (P.C.)
(2) (1950] S.C.R. 335.
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MUSLIM WAKFS v. RADHA KRISHNA (Sen, J.)
161
As explained by Lord Macnaghten in the Privy Council, marginal notes
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are not part of an Act of Parliament.
The wry heading of Chapter II and the caption to s. 4 no doubt
suggest that the Commissioner makes only a preliminary survey regarding existing wakfs and the list of wakfs prepared by him is published
by the Board and neither the Commissioner nor the Board is required
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to ma~~ any enquiry regarding the character of th~ property.
That is
to say, the making of survey is only an administrative act and not a
quasi-judicial act.
But, on a closer examination, it is clear that while
making a survey of the existing wakfs in a State under su!H. ( l) of
s. 4, the Commissioner is required by sub-s. (3) to submit a report to
the State Government in regard to the sewral matters referred to in
els. (a) to (f) thereof.
There may be a dispute as between the Board,
the mutawalli or a person interested in the wakf, as regards (a)
the
existence of a wakf, i.e. whether a particular property is wakf property,
(b) whether it is a Shia wakf or a Sunni wakf, ( c) extent of the property attached to the wakf, ( d) the nature and object of the wakf, etc.
While making such an enquiry, the Commissioner is invested by sub-s.
( 4) with the powers vested in a civil court under the Code of Civil
Procedure, 1908 in respect of the summoning and examining of any
witness, requiring the discovery and production of any document, requisitioning any pnblic record from any court or office, issuing commissions for the examination of any witness or accounts, making any
local inspection or local investigation etc.
In view of these comprehensive provisions, it is not disputed before us that the enquiry that
the Commissioner makes for the purpose of submission of his report
under sub-.s. ( 3), while making a survey of existing wakfs in the Estate
under sub-s. ( 1), is not purely of an administrative nature but partakes
of a quasi-judicial in character, in respect of the persons falling within
the scope of sub-s. (l) of S· 6.
It would be illogical to hold that while making a survey of wakf
properties existing in the State a Commissioner of Wakfs appointed by
the State Government under sub-s. (1 ), of s. 4, should have no power
to enquire whether a particular property is wakf property or not. If we ·
may refer to sub-s. (1) of s. 4, so far as material, it reads :
"The State Government may, by notification in the Official Gazette, appoint for the
State
a CommissiOil'v'f
of
Wakfs ...... for the purpose of making a survey of wakf
properties existing in the State at the date of the commencement of this Act."
It will be clear that the words "for the purpose of making a survey
of wakf properties" is a Irey to the construction of the section.
The
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ordinary meaning of the word "survey'', as given in the Random House
Dictionary of English Language, is 'to take a general or comprehensive
view of or apprais·e, as a situation'. If the Commissiorn':r of Wakfs
has the power to make a survey, it is but implicit that in the exercise of
such power he should enquire whe.h3r a wakf exisl's.
The making of
such an enquiry is a necessary concomitant of the power to survey.
The High Court was clearly in error in observing :
"Except sub-s•3ction ( 5) there is nothing in section 4
or in the rules made by the State to show that the Commissioner is empowered to adjudicate on a question, if one arises,
wheth3r a particular property is a wakf property or not."
We are of the opinion that the power of the Commissioner to survey wakf properties under sub-s. (1) or to enquire and investigate into
th3 several matters set out in els. (e) to (f) of sub-s. (3) cannot be·
curtailed by taking recourse to sub-s. (5). The High Court was wholly
wrong in understanding the tme implication of sub-:s. ( 5) of s. 4.
It
only lays down that if, during any such enquiry, any dispute arises as
to whether a particular wakf is a Shia wakf or a Sunni wakf, and there
are clear indications in th3 deed of wakf as to its nature, the disput·o
shall be decided on the basis of such deed.
It, therefore, makes the
wakf deed conclusive as to the nature of the wakf, i.e. whothcr it is a
Shia or a Sunni wakf.
In our view, sub-s. ( 5) of s. 4 cannot be projected into sub-s. (!) for determining the question whether a certain
property is a wakf property or not.
Nor do•2s it enter into an enquiry
as to several of the matrers adverted into some of the clauses of subs. (3).
The matter can also be viewed from anoth~r angle.
If sections
4, 5 and 6 are parts of an integrated scheme, as ass0rted, then it follows
as a necessary corollary that the enquiry envisaged by sub-sections ( 1)
and ( 3) of s. 4 must cover the field defiD'cd by sub-s. (1) of s. 6.