# KIRAN DEVI v. THE BIHAR STATE SUNNI WAKF BOARD & ORS

- **Citation:** [2021] 7 S.C.R. 86
- **Court:** Supreme Court of India
- **Decided:** 2021-04-05
- **Case number:** Civil Appeal No. 6149 of 2015
- **Bench:** Ashok Bhushan, S. Abdul Nazeer, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kiran-devi-v-the-bihar-state-sunni-wakf-board-ors-35145
- **Pages:** 26

## Headnote

Hindu Law: Hindu joint family property - Presumption of -
Held: There can be presumption of Hindu joint family property if
the property has been acquired by the male member or if the same
has been treated as joint Hindu family - However, no such
presumption is attached to a business activity carried out by an
individual in a tenanted premise - Even if a male member had taken
premises on rent, he is tenant in his individual capacity and not as
Karta of Hindu Undivided Family in the absence of any evidence
that Karta was doing the business for and on behalf of Joint Hindu
Family - Hindu Joint Hindu Family cannot be presumed to be in
existence only on the basis of Ration Card and payment of rent
unless there is evidence that the funds of joint Hindu Family were
invested in the business in the tenanted premises - On facts, High
Court held that the payment of rent or the Ration Card proves that
the tenant was carrying business as a Joint Hindu Family Business,
and also rejected the surrender of tenancy - Facts would show that
it was the contract of tenancy which was inherited by the grandfather
of the plaintiff who later surrendered it in favour of the Wakf Board
- Even if the great grandfather was maintaining the family out of
the income generated from the hotel business, that itself would not
make the other family members as coparceners in the hotel business
- Tenancy was an individual right vested with the grandfather of
the plaintiff who was competent to surrender it to the landlord -
Thus, the order by the High Court that the tenant in the premises
was representing a joint Hindu family and that the Karta was not
competent to surrender the legacy rights in favour of Wakf Board
and consequently the induction of the appellant as a tenant by the
Wakf Board was illegal and thus, issuance of direction to dispossess
the appellant from the suit premises and to handover the vacant
possession to the plaintiff, is not sustainable and set aside, and that
[2021] 7 S.C.R. 86
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of the Wakf Tribunal is restored - Wakf Act, 1995 - ss. 85, 85A,
83(9).
Constitution of India: Arts. 226 and 227 - Writ petition -
Petition u/Art. 227 filed against an order of the Wakf Tribunal before
the High Court - Petition titled as writ petition - Jurisdiction of
High Court - Held: Nomenclature of the title of the petition filed
before the High Court is immaterial - It is wholly immaterial that it is
titled as a writ petition - Petition styled as one u/Art. 226 would not
bar the High Court to exercise jurisdiction under the Act and/or u/
Art. 227 - In certain High Courts, petition u/Art. 227 is titled as writ
petition and in certain other High Courts as revision petition or as
miscellaneous petition - On facts, keeping in view the nature of the
order passed in the light of proviso to sub-section (9) of s. 83 of the
Act, the High Court exercised jurisdiction only under the Act, which
was restricted to only examine the correctness, legality or propriety
of the findings recorded by the Wakf Tribunal - Wakf Act, 1995 -
ss. 85, 85A, 83(9).
Allowing the appeal, the Court
HELD: 1.1 The plaintiff had invoked the jurisdiction of the
Civil Court in the year 1996. It is the Wakf Board and the appellant
who then filed an application for transfer of the suit to the Wakf
Tribunal. Though, in terms of Ramesh Gobindram's case, the Wakf
Tribunal could not grant declaration as claimed by the plaintiff,
but such objection cannot be permitted to be raised either by the
Wakf Board or by the appellant as the order was passed by the
Civil Court at their instance and was also upheld by the High
Court. Such order has thus, attained finality inter-parties. The
parties cannot be permitted to approbate and reprobate in the
same breath. The order that the Wakf Tribunal has the jurisdiction
cannot be permitted to be disputed as the parties had accepted
the order of the civil court and went to trial before the Tribunal. It
is not a situation where plaintiff has invoked th

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SUPREME COURT REPORTS
[2021] 7 S.C.R.
KIRAN DEVI
v.
THE BIHAR STATE SUNNI WAKF BOARD & ORS.
(Civil Appeal No. 6149 of 2015)
APRIL 05, 2021
[ASHOK BHUSHAN, S. ABDUL NAZEER AND
HEMANT GUPTA, JJ.]
Hindu Law: Hindu joint family property - Presumption of -
Held: There can be presumption of Hindu joint family property if
the property has been acquired by the male member or if the same
has been treated as joint Hindu family - However, no such
presumption is attached to a business activity carried out by an
individual in a tenanted premise - Even if a male member had taken
premises on rent, he is tenant in his individual capacity and not as
Karta of Hindu Undivided Family in the absence of any evidence
that Karta was doing the business for and on behalf of Joint Hindu
Family - Hindu Joint Hindu Family cannot be presumed to be in
existence only on the basis of Ration Card and payment of rent
unless there is evidence that the funds of joint Hindu Family were
invested in the business in the tenanted premises - On facts, High
Court held that the payment of rent or the Ration Card proves that
the tenant was carrying business as a Joint Hindu Family Business,
and also rejected the surrender of tenancy - Facts would show that
it was the contract of tenancy which was inherited by the grandfather
of the plaintiff who later surrendered it in favour of the Wakf Board
- Even if the great grandfather was maintaining the family out of
the income generated from the hotel business, that itself would not
make the other family members as coparceners in the hotel business
- Tenancy was an individual right vested with the grandfather of
the plaintiff who was competent to surrender it to the landlord -
Thus, the order by the High Court that the tenant in the premises
was representing a joint Hindu family and that the Karta was not
competent to surrender the legacy rights in favour of Wakf Board
and consequently the induction of the appellant as a tenant by the
Wakf Board was illegal and thus, issuance of direction to dispossess
the appellant from the suit premises and to handover the vacant
possession to the plaintiff, is not sustainable and set aside, and that
[2021] 7 S.C.R. 86
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of the Wakf Tribunal is restored - Wakf Act, 1995 - ss. 85, 85A,
83(9).
Constitution of India: Arts. 226 and 227 - Writ petition -
Petition u/Art. 227 filed against an order of the Wakf Tribunal before
the High Court - Petition titled as writ petition - Jurisdiction of
High Court - Held: Nomenclature of the title of the petition filed
before the High Court is immaterial - It is wholly immaterial that it is
titled as a writ petition - Petition styled as one u/Art. 226 would not
bar the High Court to exercise jurisdiction under the Act and/or u/
Art. 227 - In certain High Courts, petition u/Art. 227 is titled as writ
petition and in certain other High Courts as revision petition or as
miscellaneous petition - On facts, keeping in view the nature of the
order passed in the light of proviso to sub-section (9) of s. 83 of the
Act, the High Court exercised jurisdiction only under the Act, which
was restricted to only examine the correctness, legality or propriety
of the findings recorded by the Wakf Tribunal - Wakf Act, 1995 -
ss. 85, 85A, 83(9).
Allowing the appeal, the Court
HELD: 1.1 The plaintiff had invoked the jurisdiction of the
Civil Court in the year 1996. It is the Wakf Board and the appellant
who then filed an application for transfer of the suit to the Wakf
Tribunal. Though, in terms of Ramesh Gobindram's case, the Wakf
Tribunal could not grant declaration as claimed by the plaintiff,
but such objection cannot be permitted to be raised either by the
Wakf Board or by the appellant as the order was passed by the
Civil Court at their instance and was also upheld by the High
Court. Such order has thus, attained finality inter-parties. The
parties cannot be permitted to approbate and reprobate in the
same breath. The order that the Wakf Tribunal has the jurisdiction
cannot be permitted to be disputed as the parties had accepted
the order of the civil court and went to trial before the Tribunal. It
is not a situation where plaintiff has invoked the jurisdiction of
the Wakf Tribunal. [Para 13][97-F-H; 98A-B]
1.2 It is not conferment of jurisdiction by the plaintiff
voluntarily but by virtue of a judicial order which has now attained
finality between parties. The suit was accordingly decided by the
KIRAN DEVI v. THE BIHAR STATE SUNNI WAKF BOARD
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Waqf Tribunal. It is not open to the appellant to raise the objection
that the Waqf Tribunal had no jurisdiction to entertain the suit in
the facts of the instant case. [Para 14][98-C-D]
Ramesh Gobindram (Dead) through LRs. v. Sugra
Humayun Mirza Wakf (2010) 8 SCC 726:[2010] 10 SCR
945 - referred to.
1.3 A perusal of the proviso to sub-section (9) of Section 83
of the Wakf Act, 1995 shows that it confers power on the High
Court to call for and examine the records relating to any dispute,
question or other matter which has been determined by the
Tribunal for the purpose of satisfying itself as to the correctness,
legality or propriety of such determination. In fact, the statutory
provision is acceptance of the principle that the jurisdiction of
the High Court under Article 226 or 227 of the Constitution of
India cannot be curtailed in terms of L. Chandra Kumar v. Union
of India & Ors. [Para 18][99-F-H]
Sadhana Lodh v. National Insurance Co. Ltd. & Anr.
(2003) 3 SCC 524:[2003] 1 SCR 567 - distinguished.
L. Chandra Kumar v. Union of India & Ors. (1997) 3
SCC 261:[1997] 2 SCR 1186; Md. Wasiur Rahman &
Anr v. The State of Bihar & Ors. CWJC No. 14622 of
2017 dt. 25.04.2018; Radhey Shyam & Anr. v. Chhabi
Nath & Ors. (2015) 5 SCC 423: [2015] 3 SCR 197;
Surya Dev Rai v. Ram Chander Rai & Ors. (2003) 6
SCC 675:[2003] 2 Suppl. SCR 290 - referred to
1.4 When a petition is filed against an order of the Wakf
Tribunal before the High Court, the High Court exercises the
jurisdiction under Article 227 of the Constitution of India.
Therefore, it is wholly immaterial that the petition was titled as a
writ petition. It may be noticed that in certain High Courts, petition
under Article 227 is titled as writ petition, in certain other High
Courts as revision petition and in certain others as a miscellaneous
petition. However, keeping in view the nature of the order passed,
more particularly in the light of proviso to sub-section (9) of Section
83 of the Act, the High Court exercised jurisdiction only under
the Act. The jurisdiction of the High Court is restricted to only
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examine the correctness, legality or propriety of the findings
recorded by the Wakf Tribunal. The High Court in exercise of
the jurisdiction conferred under proviso to sub-section (9) of
Section 83 of the Act does not act as the appellate court.
Nomenclature of the title of the petition filed before the High
Court is immaterial. Therefore, the petition styled as one under
Article 226 would not bar the High Court to exercise jurisdiction
under the Act and/or under Article 227 of the Constitution. The
nomenclature of the proceedings as a petition under Article 226
or a petition under Article 227 is wholly inconsequential and
immaterial. [Para 20, 21 and 23][101-D-G; 103-B]
Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate
& Ors. (1998) 5 SCC 749: [1997] 5 Suppl. SCR 12 -
relied on.
Municipal Corporation of the City of Ahmedabad v. Ben
Hiraben Manilal (1983) 2 SCC 422: [1983] 2 SCR 676
- referred to.
1.5 The plaintiff has pleaded that when father of the plaintiff
joined service, the shop was being run through the servants and
that the plaintiff began to run the hotel since 1988. Thereafter,
the disputes cropped up over the management and accounting of
the income and the hotel was closed for many years. The High
Court held that the existence of joint family is established from
the Ration Card issued on 2.4.1949 and from the payment of rent
for the period 1947-1955 that the premises were let out to joint
family. The High Court also rejected the surrender of tenancy on
the ground that it was without the consent of other co-parceners.
Thus, even if a male member had taken premises on rent, he is
tenant in his individual capacity and not as Karta of Hindu
Undivided Family in the absence of any evidence that Karta was
doing the business for and on behalf of Joint Hindu Family. The
High Court has presumed the existence of the joint family of which
brother of great grand father of plaintiff was said to be the Karta
from perusal of the Ration Card issued on 2.12.1949. The Hindu
Joint Hindu Family cannot be presumed to be in existence only
on the basis of Ration Card unless there is evidence that the
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funds of joint Hindu Family were invested in the business in the
tenanted premises. Thus, the High Court committed a basic error
of law and fact that the payment of rent or the Ration Card proves
that the tenant was carrying business as a Joint Hindu Family
Business. There can be presumption of Hindu joint family property
if the property has been acquired by the male member or if the
same has been treated as joint Hindu family. But no such
presumption is attached to a business activity carried out by an
individual in a tenanted premise. [Para 27-29 and 31][104-E;
G-H; 105-A; 106-C-D; 107-F-G]
1.6 A perusal of the facts on record would show that it was a
contract of tenancy entered upon by great grandfather of the
plaintiff. Even if the great grandfather was maintaining the family
out of the income generated from the hotel business, that itself
would not make the other family members as coparceners in the
hotel business. It was the contract of tenancy which was inherited
by the grandfather of the plaintiff who later surrendered it in favour
of the Wakf Board. The tenancy was an individual right vested
with the grandfather of the plaintiff who was competent to
surrender it to the landlord. The High Court erred in law by holding
that since the grandfather was a tenant, the tenancy is a joint family
asset. The contract of tenancy is an independent contract than
the joint Hindu family business. [Para 32][107-G-H; 108-A-B]
1.7 The evidence produced by the plaintiff is payment of
rent by either brother of great grandfather of plaintiff or by the
grandfather of the plaintiff. Such payment of rent is not indicative
of the fact that the hotel business was by the joint Hindu family.
Thus, mere payment of rent by great grandfather or by the grandfather of the plaintiff raises no presumption that it was a joint
Hindu family business. The High Court has clearly erred in law to
hold so without any legal or factual basis. [Para 33 and 35]
[108-B-C; 110-A-B]
1.8 Even if nephew of the plaintifff is considered to be
representing the joint Hindu family while carrying out hotel
business in the tenanted premises, the question as to the act Karta
to surrender of tenancy was for the benefit of the joint Hindu
family. [Para 36][110-B-C]
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Hindu Law by Mulla 22nd Edition - referred to.
1.9 The plaintiff pleaded that the hotel was closed for several
years, thus, the liability to pay monthly rent continued to accrue
upon karta-nephew of the plaintiff. The High Court found that the
letter of surrender was not reliable or tenable. The executor of
the surrender letter has admitted such surrender letter in the
written statement and while appearing as a witness as DW-5. The
Mutawalli has also accepted the surrender letter in the written
statement and while appearing in the witness box as DW-10.
Merely for the reason that signatures in the translated copy do
not tally with the Urdu copy is not sufficient to hold the surrender
letter as unreliable as the translation can be incorrect but the
correctness of the document has not been disputed by the
executor or by the acceptor. The said document could not have
been said to be unreliable on the basis of the statement of the
plaintiff who is not a party to such transaction. It is one thing to
say that the document is unreliable and another to say that the
document does not bind the plaintiff. There is no hesitation to
hold that the document was validly proved and accepted by the
Wakf Board. Thus, the act of surrender of tenancy was for the
benefit of the Joint Hindu family. [Para 37][111-B, C-E]
1.10 The order of the High Court is not sustainable for the
reasons recorded and is set aside and that of the Wakf Tribunal is
restored. [Para 38][111-F]
Punjab Wakf Board v. Sham Singh Harike (2019) 4 SCC
698 : [2019] 2 SCR 61; Chandavarkar Sita Ratna Rao
v. Ashalata S. Guram (1986) 4 SCC 447: [1986] 3 SCR
866 ; Ganpat Ladha v. Sashikant Vishnu Shinde (1978)
2 SCC 573 : [1978] 3 SCR 198 ; Ram Awalamb &
Ors. v. Jata Shankar & Ors. AIR 1969 All. 526;
Commissioner of Income Tax, Madhya Pradesh v. Sir
Hukamchand Mannalal & Co (1970) 2 SCC 352 :
[1971] 1 SCR 646; P.K.P.S. Pichappa Chettiar & Ors.
v. Chockalingam Pillai & Ors. AIR 1934 Privy Council
192; G. Narayana Raju (Dead) by his Legal
KIRAN DEVI v. THE BIHAR STATE SUNNI WAKF BOARD
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Representative v. G. Chamaraju & Ors. AIR 1968 SC
1276 : [1968] SCR 464; P.S. Sairam & Anr. v. P.S. Rama
Rao Pissey & Ors. (2004) 11 SCC 320:[2004] 2 SCR
98 - referred to.
Case Law Reference
[2019] 2 SCR 61
referred to
Para 9(1)
[2003] 1 SCR 567
referred to
Para 9(2)
[1986] 3 SCR 866
referred to
Para 9(3)
[1978] 3 SCR 198
referred to
Para 9(3)
AIR 1969 All. 526
referred to
Para 12
[1971] 1 SCR 646
referred to
Para 12
[2010] 10 SCR 945
referred to
Para 13
[1997] 2 SCR 1186
referred to
Para 18
[2015] 3 SCR 197
referred to
Para 19
[2003] 2 Suppl. SCR 290
referred to
Para 19
[1983] 2 SCR 676
referred to
Para 21
[1997] 5 Suppl. SCR 12
relied on
Para 22
AIR 1934 Privy Council 192
referred to
Para 33
[1968] SCR 464
referred to
Para 33
[2004] 2 SCR 98
referred to
Para 34
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6149 of
2015.
From the Judgment and Order dated 06.02.2013 of the High Court
of Judicature at Patna in CWJC No. 1894/2012.
Shantanu Sagar, Prabhat Ranjan, Jeewesh Prakash, Ms. Divya
Mishra, Anil Kumar, Advs. for the Appellant.
Subhro Sanyal, Adv. for the Respondents.
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The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The challenge in the present appeal is to an order passed by the
High Court of Judicature at Patna dated 6.2.2013 whereby a writ petition
filed by respondent No. 41 herein was allowed, holding that the tenant in
the premises in question was representing a joint Hindu family and that
the Karta was not competent to surrender the tenancy rights in favour of
respondent No. 1-The Bihar State Sunni Wakf Board2 and consequently
the induction of the appellant as a tenant by the Wakf Board was illegal.
Accordingly, a direction was issued to dispossess the appellant from the
suit premises and to handover the vacant possession to the plaintiff.
 2. The plaintiff had filed a suit for declaration before the competent
civil court stating that he is a tenant in the suit premises and is entitled to
continue in the suit premises as a tenant on payment of monthly rent.
The basis of such declaration was that Ram Sharan Ram, the great
grandfather of the plaintiff, predeceased his brother Ram Sewak Ram
who died issueless and his widow predeceased him. Ram Sewak Ram
was carrying out joint family business of hotel in the premises of the
Wakf Board. Due to advanced age, he handed over the possession of
the hotel business to his nephew Devendra Prasad Sinha, the grandfather
of the plaintiff. The grandfather of the plaintiff succeeded to the tenancy
as member of the joint Hindu family. After his death, defendant Nos. 1 to
3 succeeded to tenancy as members of the Joint Hindu Family. The shop
was being run by Surendra Kumar, son of Devendra Prasad Sinha, when
the grandfather of the plaintiff fell ill. Surendra Kumar, the father of the
plaintiff started paying rent to the Wakf Board. However, Surendra Kumar
later joined service and the hotel was being run through the servants.
The plaintiff had started running the hotel since 1988. On account of
disputes over the management, the hotel was closed and it remain closed
for several years. It is the plaintiff who wanted to resume the hotel business
in the premises in question and thus communicated with the Wakf Board
to continue the hereditary tenancy of the shop as Karta in his name.
3. The cause of action was stated to arise on 21.3.1996, when the
plaintiff's grandfather along with others broke the lock of the suit premises
and removed the belongings available in the shop. The father of the plaintiff
went to the Police for lodging of the report but they refused to register
the case. A complaint was subsequently filed in the court of Chief Judicial
1 Hereinafter referred to as the 'plaintiff
2 Hereinafter referred to as the 'Wakf Board'
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Magistrate, Patna, which is stated to be pending. Later, the plaint was
amended and the present appellant was impleaded as defendant No. 5
alleging that the lease in her favour by the Wakf Board is forged, fabricated,
anti-dated and collusive paper.
4. The Wakf Board in its written statement asserted that Md.
Salimuddin was the duly appointed Mutawalli of the Janki Bibi Wakf
Estate No. 465B and the appellant is a tenant duly inducted by the
Management Committee. It was also pleaded that the defendants had no
knowledge that Ram Sewak Ram was carrying any business of hotel but
that Devendra Prasad Sinha was a tenant in the suit premises who had
surrendered his tenancy rights in favour of Md. Salimuddin through a
written letter dated 31.5.1996 and thereafter handed over vacant
possession of the premises. Subsequently, the appellant had been inducted
as a tenant on a monthly rent of Rs.600/- on 5.6.1996. This was also
indicated in the written statement filed by the appellant herein. In a
separate written statement filed on behalf of defendant Nos. 1 and 2, it
was asserted that defendant No. 1 was making payment of rent to the
landlord i.e. Mutawalli of the Wakf and that he had surrendered the shop
premises on 31.5.1996 to the landlord/Mutawalli of the Wakf as he was
unable to continue the business due to old age. It was denied that the
plaintiff and his father went to lodge FIR on account of opening of the
locks by defendant No. 1. It was asserted that the plaintiff had no occasion
of claiming the shop on 21.3.1996 as the said shop was never in his
possession nor under his lock and key.
5. The appellant and the Wakf Board filed applications before the
Civil Court for transfer of the suit for adjudication by the Wakf Tribunal
in terms of provisions of Section 85 and 85A of the Wakf Act, 19953. The
suit was thus transferred by the learned Munsif on 4.2.2009. Such order
of transfer of the suit to the Tribunal was challenged by the plaintiff by
way of a revision petition before the Patna High Court. Such revision
was found to be frivolous and dismissed on 19.5.1999 with cost of
Rs.3,000/-.
6. The parties went to trial on the following issues before the Wakf
Tribunal:
"(i) Whether Devendra Prasad was running a joint family business?
(ii) Whether Devendra Prasad as Karta of joint family business
has got authority to surrender the joint family business?
3 For short, the 'Act'
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(iii) Whether Devendra Prasad surrendered joint family business
or premises of joint family business?
(iv) Whether the plaintiff is entitled to any other relief?"
7. Devendra Prasad Sinha (defendant No. 1) appeared as DW-5
whereas Dilip Kumar (defendant No. 2) appeared as DW-14 before the
Wakf Tribunal. The said witnesses supported their stand that the tenancy
was surrendered on 31.5.1996. The learned Tribunal held that defendant
No. 1 was running a hotel business and had later surrendered the shop to
Mutawalli. The writing on paper to surrender the possession was admitted
by the witness. It was also observed that there was no oral or
documentary evidence that Devendra Prasad Sinha had surrendered the
premises where he was running joint family business. The Tribunal noted
that the plaintiff did not even suggest that Devendra Prasad was managing
a joint family business and thus in the absence of such suggestion it was
difficult or rather impossible to believe that Devendra Prasad was
managing a joint family business. Consequently, the suit was dismissed.
8. The High Court in a writ petition against the said order held that
the suit premises were let out to Ram Sewak Ram who carried out joint
family hotel business in the said premises until his death in January, 1960.
Thereafter, defendant No. 1 became the Karta and succeeded to joint
family business including the suit premises. It was observed that he could
not have surrendered the tenancy in favour of Mutawalli on 31.5.1996
without the consent of other members of the joint family. Consequently,
the judgment of the Tribunal was set aside and also a direction was
issued to dispossess the appellant from the suit premises and to handover
the vacant possession of the suit premises to the plaintiff.
9. Learned counsel for the appellant has raised the following
arguments:
(1)
That the Tribunal had no jurisdiction to entertain the suit filed
by the plaintiff in view of the judgment of this Court in Ramesh
Gobindram (Dead) through LRs. v. Sugra Humayun
Mirza Wakf4. After the aforesaid Judgment, the Wakf Act
was amended by Central Act No. 27 of 2013. This Court
recently in Punjab Wakf Board v. Sham Singh Harike5
4 (2010) 8 SCC 726
5 (2019) 4 SCC 698
KIRAN DEVI v. THE BIHAR STATE SUNNI WAKF BOARD
[HEMANT GUPTA, J.]
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has considered the amendment in the Act, wherein, the
proceedings instituted prior to the amendment were to continue
as per the unamended provisions of the Act. Therefore, a
suit for declaration of the plaintiff as a tenant was not
maintainable before the Wakf Tribunal as there was no
estoppel against the statute and that the consent would not
confer jurisdiction on the Wakf Tribunal, which it did not have
in view of the judgments referred.
(2)
The order of the Wakf Tribunal could not be challenged by
way of writ petition before the High Court under Article 226
of the Constitution of India as only a revision in terms of
proviso to sub-section (9) of Section 83 of the Act could be
preferred. Learned counsel for the appellant relies on judgment
reported as Sadhana Lodh v. National Insurance Co. Ltd.
& Anr.6 and of Patna High Court in Md. Wasiur Rahman
& Anr v. The State of Bihar & Ors.7.
(3)
The High Court could not have reappreciated facts in a petition
under Article 227 of the Constitution. The High Court has
illegally set aside findings of fact recorded by the Wakf
Tribunal. The reliance was placed on Chandavarkar Sita
Ratna Rao v. Ashalata S. Guram8. It was also argued that
in petition under Article 226 or 227 of the Constitution, no
interference is permitted in tenancy matter. Reference was
made to Ganpat Ladha v. Sashikant Vishnu Shinde9 to
support the said contention.
(4)
The surrender of possession of the tenanted premises by
defendant No. 1 was not of a business of joint Hindu family
but of the tenancy which was not been carried out for large
number of years even as admitted by the plaintiff.
(5)
Even if it was assumed that defendant No. 1 was a Karta of
the joint Hindu family, he had the right to surrender the tenancy
without the consent of the other coparceners as such
surrender was for the benefit of the family inter-alia for the
6 (2003) 3 SCC 524
7 CWJC No. 14622 of 2017 dt. 25.04.2018
8 (1986) 4 SCC 447
9 (1978) 2 SCC 573
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reason that no business was carried out for the last many
years.
10. On the other hand, Mr. Sanyal, learned counsel for the plaintiff
argued that the nomenclature as to whether the jurisdiction of the High
Court under Article 226 of the Constitution of India is invoked or the
jurisdiction in terms of the proviso to sub-section (9) of Section 83 of the
Act is invoked, is immaterial as the jurisdiction in either case is that of the
High Court. The nomenclature in exercise of the jurisdiction does not
render the order passed by the High Court to be illegal or unwarranted or
beyond jurisdiction. Reference was made to Pepsi Foods Ltd. & Anr. v.
Special Judicial Magistrate & Ors.10.
11. It was further argued that Ram Sewak Ram was inducted as
a tenant and therefore, the plaintiff has a right by birth in the tenancy
which could not be surrendered by the then Karta, defendant No. 1 without
the consent of the other coparceners. Since the possession was delivered
to the appellant as a consequence of illegal surrender of tenancy rights,
therefore, the order of the High Court is just and proper.
12. Mr. Sanyal referred to Full Bench judgment of the Allahabad
High Court reported as Ram Awalamb & Ors. v. Jata Shankar &
Ors.11 to contend that the personal law of Hindus regarding the devolution
of joint Hindu family property is applicable to tenanted property also.
Reference was also made to a judgment of this Court reported as
Commissioner of Income Tax, Madhya Pradesh v. Sir Hukamchand
Mannalal & Co.12 that members of Hindu Undivided Family can enter
into contract with a stranger.
13. We have heard learned counsel for the parties and find that it
is not open to the appellant at this stage to dispute the question that the
suit filed before the learned Munsif could not have been transferred to
the Wakf Tribunal. The plaintiff had invoked the jurisdiction of the Civil
Court in the year 1996. It is the Wakf Board and the appellant who then
filed an application for transfer of the suit to the Wakf Tribunal. Though,
in terms of Ramesh Gobindram, the Wakf Tribunal could not grant
declaration as claimed by the plaintiff, but such objection cannot be
permitted to be raised either by the Wakf Board or by the appellant as
the order was passed by the Civil Court at their instance and was also
10 (1998) 5 SCC 749
11 AIR 1969 All. 526
12 (1970) 2 SCC 352
KIRAN DEVI v. THE BIHAR STATE SUNNI WAKF BOARD
[HEMANT GUPTA, J.]
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upheld by the High Court. Such order has thus attained finality interparties. The parties cannot be permitted to approbate and reprobate in
the same breath. The order that the Wakf Tribunal has the jurisdiction
cannot be permitted to be disputed as the parties had accepted the order
of the civil court and went to trial before the Tribunal. It is not a situation
where plaintiff has invoked the jurisdiction of the Wakf Tribunal.
14. The argument raised by the learned counsel for the appellant
that there was no estoppel against the statute as consent could not confer
jurisdiction upon the Authority which did not originally have jurisdiction.
Hence, it was submitted that the decision of the Tribunal was without
jurisdiction. It is to be noted that the plaintiff had filed proceedings before
the Civil Court itself but the same was objected to by the appellant as
well as by the Waqf Board. Thus, it is not conferment of jurisdiction by
the plaintiff voluntarily but by virtue of a judicial order which has now
attained finality between parties. The suit was accordingly decided by
the Waqf Tribunal. We do not find that it is open to the appellant to raise
the objection that the Waqf Tribunal had no jurisdiction to entertain the
suit in the facts of the present case. Therefore, we do not find any merit
in the first argument raised by the learned counsel for the appellant.
15. To appreciate the second argument, the relevant provisions of
Section 83 and sub-section (9) of Section 83 of the Act are extracted
below:
"83. Constitution of Tribunals, etc. - (1) The State Government
shall, by notification in the Official Gazette, constitute as many
Tribunals as it may think fit, for the determination of any dispute,
question or other matter relating to a waqf or waqf property, eviction
of a tenant or determination of rights and obligations of the lessor
and the lessee of such property, under this Act and define the local
limits and jurisdiction of such Tribunals.
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(9) No appeal shall lie against any decision or order whether
interim or otherwise, given or made by the Tribunal:
Provided that a High Court may, on its own motion or on the
application of the Board or any person aggrieved, call for and
examine the records relating to any dispute, question or other matter
which has been determined by the Tribunal for the purpose of
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satisfying itself as to the correctness, legality or propriety of such
determination and may confirm, reverse or modify such
determination or pass such other order as it may think fit."
16. The judgments referred to by the appellant in Sadhana Lodh
and of Patna High Court in Md. Wasiur Rahman are not applicable to
the facts of the present appeal. Sadhana Lodh is a judgment wherein
an award of the Motor Accident Claim Tribunal was challenged by way
of a Writ Petition. This Court held that the Writ Petition was not
maintainable when an alternative remedy is provided under a statute.
Therefore, the said judgment deals with availability of the writ jurisdiction
in view of the remedy of appeal provided. In the present case, the statute
provides for a remedy under proviso of sub-section (9) of Section 83 of
the Act against an order passed by the Wakf Tribunal. Such remedy is
before the High Court alone.
17. The judgment in Md. Wasiur Rahman arises out of the fact
where the order of the Waqf Tribunal was challenged by way of a Writ
Petition. An objection was raised before the writ court that there was an
alternative statutory remedy available, therefore, the Writ Petition was
not maintainable. The learned Single Judge held that a petition under
Article 226/227 of the Constitution of India was not maintainable but
liberty was given to the petitioners to invoke the jurisdiction in terms of
proviso to sub-section (9) of Section 83 of the Act. The said judgment
does not show that any argument was raised that a petition under Article
226/227 of the Constitution of India could be treated as a petition in
terms of proviso to sub-section (9) of Section 83 of the Act. Therefore,
such judgment is also not relevant for the question arising for consideration
in the present appeal.
18. A perusal of the proviso to sub-section (9) of Section 83 of the
Act shows that it confers power on the High Court to call for and examine
the records relating to any dispute, question or other matter which has
been determined by the Tribunal for the purpose of satisfying itself as to
the correctness, legality or propriety of such determination. In fact, the
statutory provision is acceptance of the principle that the jurisdiction of
the High Court under Article 226 or 227 of the Constitution of India
cannot be curtailed in terms of L. Chandra Kumar v. Union of India
& Ors.13. The relevant extract reads thus:
13 (1997) 3 SCC 261
KIRAN DEVI v. THE BIHAR STATE SUNNI WAKF BOARD
[HEMANT GUPTA, J.]
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"90. We may first address the issue of exclusion of the power of
judicial review of the High Courts. We have already held that in
respect of the power of judicial review, the jurisdiction of the High
Courts under Articles 226/227 cannot wholly be excluded. .... On
the other hand, to hold that all such decisions will be subject to the
jurisdiction of the High Courts under Articles 226/227 of the
Constitution before a Division Bench of the High Court within
whose territorial jurisdiction the Tribunal concerned falls will serve
two purposes. While saving the power of judicial review of legislative
action vested in the High Courts under Articles 226/227 of the
Constitution, it will ensure that frivolous claims are filtered out
through the process of adjudication in the Tribunal. The High Court
will also have the benefit of a reasoned decision on merits which
will be of use to it in finally deciding the matter.
91. ...We have already emphasised the necessity for ensuring
that the High Courts are able to exercise judicial superintendence
over the decisions of the Tribunals under Article 227 of the
Constitution. In R.K. Jain case [(1993) 4 SCC 119 : 1993 SCC
(L&S) 1128 : (1993) 25 ATC 464] , after taking note of these
facts, it was suggested that the possibility of an appeal from the
Tribunal on questions of law to a Division Bench of a High Court
within whose territorial jurisdiction the Tribunal falls, be pursued.
It appears that no follow-up action has been taken pursuant to the
suggestion. Such a measure would have improved matters
considerably. Having regard to both the aforestated contentions,
we hold that all decisions of Tribunals, whether created pursuant
to Article 323-A or Article 323-B of the Constitution, will be subject
to the High Court's writ jurisdiction under Articles 226/227 of the
Constitution, before a Division Bench of the High Court within
whose territorial jurisdiction the particular Tribunal falls."
19. A three Judge Bench in a judgment reported as Radhey Shyam
& Anr. v. Chhabi Nath & Ors.14 held that the observations in para 25 of
the judgment in Surya Dev Rai v. Ram Chander Rai & Ors.15 to be
not good law. In Surya Dev Rai, it was held that the order of Civil Court
could be challenged in a petition under Article 226 and that the distinction
between Articles 226 and 227 of the Constitution of India stood almost
obliterated. This Court in Radhey Shyam held:
14 (2015) 5 SCC 423
15 (2003) 6 SCC 675
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"27. ... we are of the view that judicial orders of civil courts are
not amenable to a writ of certiorari under Article 226. We are also
in agreement with the view [Radhey Shyam v. Chhabi Nath,
(2009) 5 SCC 616] of the referring Bench that a writ of mandamus
does not lie against a private person not discharging any public
duty. Scope of Article 227 is different from Article 226.
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29. Accordingly, we answer the question referred as follows:
29.1.Judicial orders of the civil court are not amenable to writ
jurisdiction under Article 226 of the Constitution.
29.2. Jurisdiction under Article 227 is distinct from jurisdiction under
Article 226.
29.3. Contrary view in Surya Dev Rai [Surya Dev Rai v. Ram
Chander Rai, (2003) 6 SCC 675] is overruled."
20. Therefore, when a petition is filed against an order of the Wakf
Tribunal before the High Court, the High Court exercises the jurisdiction
under Article 227 of the Constitution of India. Therefore, it is wholly
immaterial that the petition was titled as a writ petition. It may be noticed
that in certain High Courts, petition under Article 227 is titled as writ
petition, in certain other High Courts as revision petition and in certain
others as a miscellaneous petition. However, keeping in view the nature
of the order passed, more particularly in the light of proviso to sub-section
(9) of Section 83 of the Act, the High Court exercised jurisdiction only
under the Act. The jurisdiction of the High Court is restricted to only
examine the correctness, legality or propriety of the findings recorded by
the Wakf Tribunal. The High Court in exercise of the jurisdiction conferred
under proviso to sub-section (9) of Section 83 of the Act does not act as
the appellate court.
21. We find merit in the argument raised by Mr. Sanyal that the
nomenclature of the title of the petition filed before the High Court is
immaterial. In Municipal Corporation of the City of Ahmedabad v.
Ben Hiraben Manilal16, this Court held that wrong reference to the
power under which an action was taken by the Government would not
per se vitiate the action, if the same could be justified under some other
power whereby the Government could lawfully do that act. The Court
held as under:
16 (1983) 2 SCC 422
KIRAN DEVI v. THE BIHAR STATE SUNNI WAKF BOARD
[HEMANT GUPTA, J.]
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"5. ....It is well settled that the exercise of a power, if there is
indeed a power, will be referable to a jurisdiction, when the validity
of the exercise of that power is in issue, which confers validity
upon it and not to a jurisdiction under which it would be nugatory,
though the section was not referred, and a different or a wrong
section of different provisions was mentioned. See in this connection
the observations in Pitamber Vajirshet v. Dhondu Navlapa [ILR
(1888) 12 Bom 486, 489] . See in this connection also the
observations of this Court in the case of L. Hazari Mal
Kuthiala v. ITO, Special Circle, Ambala Cantt. [AIR 1961 SC
200 : (1961) 1 SCR 892 : (1961) 41 ITR 12, 16 : (1961) 1 SCJ 617]
This point has again been reiterated by this Court in the case
of Hukumchand Mills Ltd. v. State of M.P. [AIR 1964 SC 1329
: (1964) 6 SCR 857 : (1964) 52 ITR 583 : (1964) 1 SCJ 561] where
it was observed that it was well settled that a wrong reference to
the power under which action was taken by the Government would
not per se vitiate that action if it could be justified under some
other power under which Government could lawfully do that act.
See also the observations of the Supreme Court in the case of Nani
Gopal Biswas v. Municipality of Howrah [AIR 1958 SC 141 :
1958 SCR 774, 779 : 1958 SCJ 297 : 1958 Cri LJ 271]."
22. Later, in Pepsi Foods Ltd., this Court held that nomenclature
under which the petition is filed is not quite relevant and it does not debar
the Court from exercising its jurisdiction which otherwise it possesses. If
the Court finds that the appellants could not invoke its jurisdiction under
Article 226, the Court can certainly treat the petition as one under Article
227 or Section 482 of the Code. This Court held as under:
"26. Nomenclature under which petition is filed is not quite relevant
and that does not debar the court from exercising its jurisdiction
which otherwise it possesses unless there is special procedure
prescribed which procedure is mandatory. If in a case like the
present one the court finds that the appellants could not invoke its
jurisdiction under Article 226, the court can certainly treat the
petition as one under Article 227 or Section 482 of the Code. It
may not however, be lost sight of that provisions exist in the Code
of revision and appeal but some time for immediate relief Section
482 of the Code or Article 227 may have to be resorted to for
correcting some grave errors that might be committed by the
subordinate courts. The present petition though filed in the High
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Court as one under Articles 226 and 227 could well be treated
under Article 227 of the Constitution."
23. Therefore, the petition styled as one under Article 226 would
not bar the High Court to exercise jurisdiction under the Act and/or under
Article 227 of the Constitution. The jurisdiction of the High Court to
examine the correctness, legality and propriety of determination of any
dispute by the Tribunal is reserved with the High Court. The nomenclature
of the proceedings as a petition under Article 226 or a petition under
Article 227 is wholly inconsequential and immaterial.
24. The judgment referred to by Mr. Sanyal in Sir Hukamchand
Mannalal & Co. that a member of an HUF is competent to enter into a
contract with stranger does not support the argument raised. It has been
held that if a member of the HUF enters into contract with a stranger, he
does so in his individual capacity. It was held as under:
"5. The Indian Contract Act imposes no disability upon members
of a Hindu undivided family in the matter of entering into a contract
inter se or with a stranger.