IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1741 of 2005 SYED HASSAN FRANCIS IMAM Versus THE MUZAFFARPUR PROPERTIES PVT with C.R. No.1752 of 2005 SYED HASSAN FRANCIS IMAM Versus MUZAFFARPUR PROPERTIES PRIVATE with C.R. No.1769 of 2005 SYED HASSAN FRANCIS IMAM Versus MUZAFFARPUR PROPERTIES PVT.LTD ………………. For the Petitioner : M/s S. S. Dwivedi, Sr. Advocate and Ravi Shankar Dwivedi,Advocate. For O.P.No.2 :- Mr. Dilip Kumar, Advocate For O.P.No.4:- M/s. Kamal Nayan Chaubey, Senior advocate & Shashank Shekhar Jha,Advocate. For O.P.No.5:- Mr. Gajendra Pratap Singh, Advocate. -------- O R D E R 18/ 24..06.2008 All the aforesaid three civil revisions were heard together and are being decided by this common order as they arise out of the same suit bearing Title Suit No. 262 of 1991 and all the revisions have been filed by the same person, namely Syed Hassan Francis Imam, who is plaintiff no.2 in the suit, challenging different parts of the same impugned order dated 06.06.2005 passed by learned 7th Subordinate Judge, Patna. 2. The aforesaid suit was originally filed by one Shamim Amna Imam, daughter of late Syed Mehdi Imam against only defendant-opposite parties no.1 and 2 claiming that the suit property, generally known as `Shantiniketan‟ (holding no. 542) over 23 kathas of land surrounded by boundary wall situated at Frazer Road, P.S. Kotwali, Town and District Patna, originally belonged to her grand father late Syed Hassan Imam, who dedicated it along with his other properties to waqf-alal-aulad by Waqfnama dated - 2 - 28.04.1931 and, thereafter, it was registered as a Waqf. After the death of said Syed Hassan Imam a dispute arose between his son (Syed Mehdi Imam) and daughters from his first wife on one hand and on other hand his second wife Mrs. Nattie Imam and her son Syed Askari Hadi Ali Augustine Imam (opposite party no.2) and the matter was referred to the arbitration of two Hon‟ble Judges of the Patna High Court, namely Hon‟ble Mr. Justice Sir Stewart Mac Pherson and Hon‟ble Mr. Justice Khwaja Md. Noor. The said two Arbitrators after hearing the parties and considering their respective claims gave their Award in the year 1935 dividing the entire 16 annas of Hassan Imam Waqf Properties into two blocks, out of which one was 10 annas block including `Shantiniketan‟ (suit premises), for which Syed Mehdi Imam was appointed the Mutawalli, whereas, the other was 6 annas block (which did not include the suit property) for which Mrs. Nattie Imam was appointed the Mutawalli and after her death her only son Syed Askari Hadi Ali Augustine Imam, namely defendant-opposite party no.2 became the Mutawalli of the 6 annas block. Both the said blocks with their respective Mutawallis were duly registered as separate waqfs and both the said Mutawallis managed their respective waqf properties as per the Waqfnama, the Arbitration Award and the provisions of law. Subsequently by a registered deed of lease dated 28.08.1970, the then Mutawalli of 10 annas block of the Waqf Estate, namely late Syed Mehdi Imam gave the suit property on lease settlement to the said original plaintiff after due permission of the then Bihar Subai Shia Majlis-e-Awquaf ( now Bihar State Shia Waqf Board) and since then the original plaintiff Sahmim Amna Imam remained in possession and used the said properties as her lease-hold. It was also claimed in the plaint that on 22.05.1988 defendant-opposite party no.2 Syed Askari Hadi Ali Augustine Imam (father of the petitioner) executed a sale-deed on 09.02.1988 with - 3 - respect to the suit property in favour of defendant-opposite party no.1 and got it registered on 11.04.1988. It was also claimed that defendant-opposite party no.2 had no manner of any right, title, interest and possession over the suit properties nor any waqf property can be sold by any one. In the said circumstances, the original plaintiff claimed the following reliefs in the said suit:- (i) On adjudication of the facts and circumstances it be declared that the alleged deed of sale signed on 09.02.1988 and registered on 11.04.1988 executed by the defendant no.2 in favour of the defendant no.1 at Dhanbad in respect of the property in Schedule I of the plaint is void, fraudulent, illegal, without any consideration, not binding on the plaintiff or even on her settlee and defendant no.1 has not acquired any right, title and interest thereon in respect of the property described in Schedule I of the plaint. (ii) A declaration be made as to the perfect right, title and interest of the plaintiff over the suit property as exclusive permanent settlee ever since the settlement made in the favour of the plaintiff on 28.08.1970 and it be further declared that the defendant no.2 had no right, title and interest ever since the award was made and acted upon and in the alternative his right, title and interest if any was extinguished by adverse possession for several 12 years and he has no right to execute the sale deed dated 11.04.1988 in favour of the defendant no.1. (iii) It be further declared that late Mr. Mehdi Imam as the Mutawalli after the settlement dated 28.08.1970 had the right to realize the rent noted in the settlement deed as Mutawalli under the supervision of the Waqf Board. - 4 - (iv) Possession of the plaintiff over the suit land be confirmed and if during the pendency of the suit, the plaintiff is dispossessed from the suit property the delivery of possession of the said property be given to the plaintiff and the plaintiff be put in possession of the same by the court. (v) A permanent injunction restraining the defendants no.1 and 2 from disturbing or interfering with the possession of the plaintiff over the suit land be passed and the defendants nos. 1 and 2 further be restrained from changing the physical feature of the suit land in any way. (vi) Cost of the suit be awarded to the plaintiff. (vii) Any other relief or reliefs for which the plaintiff is found to be entitled be granted to her by the court. 3. The said suit continued but the original plaintiff Shamim Amna Imam died issueless on 23.05.1988 leaving behind her mother Mrs. Sayeeda Mehdi Imam, who had also become the Mutawallia of the said Ten Annas Block of the Waqf Estate as her husband, namely Syed Mehdi Imam, who was the earlier Mutwali, had died. In the said circumstances, said Mrs. Sayeeda Mehdi Imam was substituted as plaintiff in place of her daughter in the title suit on 24.01.2000. It also transpires that much later by order dated 18.09.2001 the petitioner was also substituted as plaintiff no.2 in the said suit on the basis of an alleged Will said to have been executed in his favour by the original plaintiff. Thereafter on 17.04.2003 the substituted plaintiff no.1 Mrs. Sayeeda Mehdi Imam filed a petition for withdrawal of the suit simplicitor but the learned court below by order dated 29.05.2003 held that the said petition for withdrawal shall be considered at the time of hearing of the suit. However, before hearing of the suit could start, the said substituted plaintiff no.1 Mrs. - 5 - Sayeeda Mehdi Imam died on 22.02.2004 without any child or grandchild alive, whereafter on 10.05.2004 substituted plaintiff no.2 (petitioner) filed a petition in the court below for accepting him as the sole plaintiff of the suit. 4. On 21.05.2004, opposite party no.4 Faiz Murtaja Ali filed a petition for being substituted in place of Mrs. Sayeeda Mehdi Imam (plaintiff no.1) claiming to be her nephew. On 22.05.2004 opposite party no.5 Dr.(Mrs) Shahida Hassan filed a petition for being substituted in place of Mrs. Sayeeda Mehdi Imam (plaintiff no.1) claiming to be the Mutawallia of the said Waqf Estate having been appointed by the Bihar State Shia Waqf Board (hereinafter referred to as `the Waqf Board‟ for the sake of brevity). On 14.10.2004 opposite party no.3 Syed Akabir Hussain filed a petition for being substituted in place of Mrs. Sayeeda Mehdi Imam (plaintiff no.1) on the basis of her alleged Will dated 20.02.2004. On 14.10.2004 opposite parties no.6 to 9 filed a petition for being added as defendants in the suit on the basis of genealogical table of the entire larger family. 5. By impugned order dated 06.06.2005 learned Subordinate Judge VII, Patna, rejected the petition of plaintiff no.2 (petitioner) dated 10.05.2004 for accepting him as the sole plaintiff and allowed the petitions of opposite party no.4 ( Faiz Murtaza Ali) dated 21.05.2004, opposite party no.5 (Dr. (Mrs.) Shahida Hassan) dated 22.05.2004 and opposite party no.3 (Syed Akabir Hussain) dated 14.10.2005 adding them as co-plaintiffs in the suit and also allowed the petition of opposite parties no. 6 to 9 dated 14.10.2004 adding them as co-defendants in the suit. 6. Against the entire impugned order dated 06.06.2005, including all parts thereof defendant-opposite party no.1 filed a civil revision ( C. R. No. 1767 of 2005), which was heard and considered in detail by a Bench of this Court,whereafter by order dated 12.04.2006 it was found that no jurisdictional - 6 - error was committed by the learned court below in permitting the substitutions and hence the said civil revision was dismissed with a liberty to the parties to raise the issue of non-joinder and/or cause of action at the time of hearing of the suit in accordance with law. 7. The petitioner, who was plaintiff no.2 in the learned court below, filed three civil revisions against three parts of the impugned common order dated 06.06.2005 passed by the learned court below, out of which Civil Revision No. 1741 of 2005 was filed by him against that part of the said order by which the substitution petition of opposite party no.5, namely Dr. (Mrs) Shahida Hassan was allowed, whereas Civil Revision No. 1752 of 2005 was filed by him against that part of the said order by which the substitution petition of opposite party no.4, namely Faiz Murtaza Ali was allowed and Civil Revision No. 1769 of 2005 was filed by him against that part of the said order by which his petition dated 10.05.2004 for accepting him as the sole plaintiff was rejected. 8. So far Civil Revision No. 1769 of 2005 is concerned, it may be noted that plaintiff no.2-petitioner had not challenged that part of the impugned order by which the substitution petition of opposite party no.3 Syed Akabir Hussain for impleading him as a co-plaintiff was allowed and hence that part of the impugned order has attained finality specially when this Court has dismissed Civil Revision No. 1767of 2005 filed by defendant-opposite party no.1 and had affirmed the impugned order of the learned court below. In the said circumstances, the claim of plaintiff no.2-petitioner for accepting him as the sole plaintiff cannot be legally allowed and hence Civil Revision No.1769 of 2005 has got no merit at all, nor there appears to be any jurisdictional error in the said part of the impugned order. 9. So far Civil Revision No.1741 of 2005 is concerned, it is against - 7 - that part of impugned order dated 06.06.2005 by which opposite party no.5, namely Dr. (Mrs.) Shahida Hassan was substituted as co-plaintiff in place of deceased plaintiff no.1 namely Mrs. Sayeeda Mehdi Imam.. The objection of the petitioner is that the suit property was not a waqf property and was personal property of late Syed Mehdi Imam, who settled the same with the original plaintiff Shamim Amna Imam by a registered deed dated 28.08.1970 and hence opposite party no.5, namely Dr. (Mrs.) Shahida Hassan cannot be legally substituted as co-plaintiff merely on the basis of her claim that she was the Mutawallia of the Waqf Estate including the suit property. It was also claimed by the petitioner that the waqf in question admittedly being waqf-alal- aulad cannot legally come under the purview of the Waqf Act nor the Board has any authority over the same. In this regard learned counsel for the petitioner relied upon the provisions of section 3(l) of the Waqf Act, 1954 and also upon a decision of a division bench of this Court in case of Asma Jafar Imam vs. State of Bihar, reported in A.I.R. 1975 Patna 48 in which it was decided that “ waqfs Alal Aulad which are strictly in terms of 1913 Act shall be excluded from the scope of 1954 Act” and that “ the provisions of the `1954 Act are not applicable to the said waqf Alal Aulad and as such the respondent has no jurisdiction to interfere with the administration and management of the Imam Waqf Estate.” It was also claimed that the subsequent decision of another Division bench of this court in case of Faiz Murtaza Ali V. Syed Askari Hadi Ali Augustine Imam, reported in 2007(1) PLJR 130, taking a different view, is per incuriam. 10. Although the term “waqf” is not defined or mentioned in Quran,but there are some verses in the holy book from which the concept of waqf is built upon and is also found in the percepts and practices of the Prophet of Islam. It is held in Quran that “it is not righteousness that you turn your faces to the East - 8 - and the West, but righteous is he who believes in God and the Last Day of Judgment and the Angels and the Holy Scriptures and Prophets sent by God from time to time all over the world and gives his wealth for love of God to his kinsfolk and to orphans and to needy and to way farers and to those who ask”. In this regard, Chapters:verses of Quran, namely 2:177, 2:215, 4:36, 17:26 etc. may be referred to. According to a noted Hadith of Tirmizi, Prophet had declared “tie up the property and devote the usufruct to human beings and it is not to be sold or made subject to gift or inheritance; devote its produce to your children, your kindred, and the poor in the way of God.” 11. Considering the provisions of Quran and the „Hadith‟ of the Prophet, it was held by Imam Abooyoosuf that it was lawful for a person to appropriate his property on himself and after him on such a person or persons as he thinks fit and then upon the poor. This view finds place in the great commentary on Mohammendan Law, namely Hedaya, which is followed by the Hanafi Sect of Muslims. According to Imam Jafar-e-Sadique, waqf is a contract, the fruit or effect of which is to tie up the original of a thing and to leave its usufruct for the use of the person for the benefit of whom the appropriation (waqf) was made as per the wishes of the waqif (dedicator). Such an appropriation or waqf can be made either for the kinsman of the waqif or for his charitable and pious purposes as per the provisions of Fiqah-e- Jafriya which is followed by the Shia Sect of Muslims. The laws as per Sharah-e-Hedaya and Fiqah-e- Jafriya, had been compiled and translated from the original texts and authorities by Neil. B.E.Baillie in the Digest of Moohummadan Law. 12.In a decision in the case of Vidya Varuthi Thirtha Swami Gal Versus Balusmy Iyer, reported in AIR 1922 PC 123, the Judicial Committee of Privy Council specifically held that „waqf‟constitutes the tying up the waqf property in the ownership of God,the Almighty and devotion of the profits for the - 9 - benefit of human beings.Justice Ameer Ali in his book Mohemmedan Law has noted various Hadith of the Prophet declaring that making of provision for oneself or ones children against future want is a pious act and if a dedication is made for the said purpose it would amount to Sadaquah and that charity begins with those who are bound to you and are of whom you are in charge and that a man who with a pious motive provides the means of subsistence for his family is doing charity and the prophet of Islam also declared it to be a holy act (Bokhari and Nisai).In that view of the matter,the term “waqf” was defined in Mulla‟s Principles of Mahomedan Law as permanent dedication by a person professing the mussalman faith of any property for any purpose recognized by Mussalman Law as religious, pious or charitable. 13. An enactment, namely the Mussalman Waqf Validating Act, 1913, (Act No.VI/1913) was made to declare the rights of mussalman to make settlements of property by way of waqf in favour of their family, children and descendants which came into force on 7th March, 1913 in which „waqf‟ was defined in Section 2 as permanent dedication by a person professing mussalman faith of any property for any purpose recognized by the mussalman as religious, pious or charitable and in Section 3 of the said Act, it was provided that such a waqf can be created by a waqif for maintenance and support wholly or partially for his family, children or descendants also. Sections 2(1) and 3(a) of the said Act read as follows:- 2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,- (1) “Wakf” means the permanent dedication by a person professing the mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable. 3. Power of Mussalmans to create certain wakfs.- It shall be lawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of Mussalman law, for the following among other purposes: (a) for the maintenance and support wholly or partially of his family, - 10 - children or descendants, 14. It transpires that later the concept of waqf was divided into three heads; public waqfs, quasi public waqfs and private waqfs, out of which public waqfs meant those trusts which were dedicated for the public at large and quasi public waqfs meant those trusts which were dedicated primarily for public purposes and partly for private purposes of individuals, whereas private waqfs meant those trusts which were dedicated for making provisions only for private individuals, including the family and relations of the waqifs (dedicators). In that view of the matter, the Mussalman Waqf Act, 1923 was enacted in which „waqf‟ was defined as permanent dedication by a person professing the mussalman faith of any property for any purpose recognized by the Mussalman Law as religious, pious, or charitable, but does not include any waqf, such as, described in Section 3 of the Mussalman Waqf Validating Act, 1913 ( Act no. VI/1913) under which any benefit is for the time being claimable for himself by the person by whom the waqf was created or by any of his family or descendants. However, the effect of this enactment of 1923 appears to have been nullified by the Mussalman Waqf Validating Act, 1930 (Act no. XXXII of 1930) which came into force on 25th July, 1930 which not only affirmed the provisions of the Mussalman Waqf Validating Act, 1913, but also made it retrospectively effective to waqfs created before the commencement of 1913 Act. 15. In the aforesaid circumstances, the Bihar Waqfs Act, 1947 (Bihar Act VIII/1948) was enacted which came into force on 3rd March, 1948 in the entire State of Bihar for supervision and control of all the Waqf Estates situated therein. Section 2(m) thereof defines the term „waqf‟ as follows:- “2(m) “Waqf” means the permanent dedication of any property, movable or immovable, for any purpose recognized by Muslim Law as religious, pious, or charitable and includes a waqf alal Aulad and a waqf by user, such as, Masjid, Idgah, Imambarah, Dargah, Khanquah, Maqbara, Graveyard, Grave, Takia, Rauza, Yatimkhana, - 11 - Madrasa, Robats Sarai, Shafa Khana and Mausoleum.” 16. This Bihar Waqfs Act, 1947 remained in force in the State of Bihar till 12th of April, 1973 when the operation of the Waqf Act, 1954 (Central Act No. XXIX / 1954) was extended to Bihar. It may be stated in this regard that the aforesaid Waqf Act, 1954 defined „waqf‟ in Section 3 (l) thereof as follows:- 3(l) “wakf”means the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognized by the Muslim Law as pious, religious, or charitable and includes- (i) a waqf by user; (ii) grants(including mashrut-ul-khidmat) for any purpose recognized by the Muslims Law as pious, religious or charitable; and (iii) a waqf al-al-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim Law as pious, religious or charitable; and „waqif‟ means any person making such dedication. 17. However, the said Central Waqf Act, 1954 was not enforced in the State of Bihar till 1973, when it was extended to the State of Bihar by Gazette of India Extraordinary Notification dated 12.04.1973 (Part II, Sec. 3(i) page 539) issued under the provision of Section 1(3) of the Act. Although the aforesaid Central Waqf Act, 1954, did not come into force in the State of Bihar for about 19 years, but it created great confusion as to whether waqf-alal-aulad comes within the purview of religious and charitable purposes as per the Quran, Hadith and the great commentaries followed by various sects of Mohammedans. In the said circumstances, The Waqf (Bihar Amendment) Act, 1974 ( Bihar Act III/1975) was enacted and was published in Bihar Gazette Extraordinary dated 28.02.1975 amending Clause (l) of Section 3 of the Waqf Act, 1954 by substituting sub-clause (iii) by another sub-clause (iii), including waqf alal-aulad within the definition of waqf. Sections 1 and 2 of the said amending Act read as follows:- 1. Short title and commencement.-(1) This Act may be called the - 12 - Wakf (Bihar Amendment) Act, 1974. (2) It shall be deemed to have come into force with effect from the 12th of April, 1973. 2. Amendment of Section 3 of Act (XXIX) of 1954).- For sub- clause (iii) of clause (1) of section 3 of the Wakf Act, 1954 (Act XXIX of 1954) the following sub-clause shall be substituted, namely- “(iii) Wakf-al-aulad” 18. This amendment was made effective from 12th April, 1973, the date on which the Waqf Act, 1954 was extended to the State of Bihar. In the said circumstances, it is quite apparent that right from the year 1913, when the first enactment with respect to waqf was made, waqf-alal-aulad continuously remained included within the definition of „waqf‟ in the State of Bihar. So far the decision of a division bench of this court in case of Begum Asma Jafar Imam and another Vs. State of Bihar and others, reported in AIR 1975 Patna 48 and relied upon by learned counsel for the petitioner, is concerned, no doubt it has been held therein that waqf alal-aulad is excluded from the scope of the Waqf Act 1954 Act and its provisions are not applicable to waqf alal-aulad. But it may be noted in this regard that the said decision was given on 01.07.1974 after the Waqf Act of 1954 was extended to the State of Bihar on 12.04.1973, but by then the amending Act, namely the Waqf ( Bihar Amendment) Act, 1974 was not enacted as it was published subsequently in Bihar Gazette Extraordinary dated 28.02.1975. However by the said amending Act, waqf alal-aulad was substituted in the definition of „waqf‟ under Section 3(l) of the Waqf Act, 1954 which was made applicable retrospectively with effect from 12.04.1973, the date on which the Waqf Act, 1954 was extended to the State of Bihar as per section 1(2) of the Amending Act. In the said circumstances, the effect of the decision in case of Begum Asma Jafar Imam and another (supra) was nullified by the aforesaid Amending Act and thus learned counsel for the petitioner was not justified in - 13 - placing reliance on the said decision nor on its basis any subsequent decision of this court taking a different view in terms