Case: Sirajul Haq Khan &amp; Others Vs. The Sunni Central Board Of Waqf,U. P. &amp; Others

1. The suit from which this appeal arises relates to a shrine and tomb known as Darga Hazarat Syed Salar Mahsood Ghazi situated in the village of Singha Parasi and properties appurtenant to it. The plaintiffs who have preferred this appeal are members of the Waqf Committee, Darga Sharif, Bahraich, and, in their suit, they have claimed a declaration that the properties in suit were not covered by the provisions of the United Provinces Muslims Waqfs Act (XIII of 1936) (hereinafter described as the Act). The declaration, the consequential injunction and the two other subsidiary reliefs are claimed primarily against respondent 1, the Sunni Central Board of Waqf, United Provinces of Agra and Oudh. Two trustees who did not join the appellants in filing the suit are impleaded as pro forma defendants 2 and 3 and they are respondents 2 and 3 before us. It appears that respondent 1 purported to exercise its authority over the properties in suit under the provisions of the Act and that led to the present suit which was filed on October 18, 1946 (No. 25 of 1946). The appellants case is that the properties in suit are outside the operative provisions of the Act and not subject to the jurisdiction of respondent 1, and so, according to the appellants, respondent 1 has acted illegally and without jurisdiction in assuming authority over the management of the said properties. That is, the basis of the reliefs claimed by the appellants in their plaint.The appellants claim was resisted by respondent 1 on several grounds. It was alleged that the properties in suit did form a waqf as defined by the Act and were covered by its operative provisions. It was urged that respondent 1 was a duly constituted Sunni Central Board and it was authorised to exercise supervision over the management of the said waqf. The case for respondent 1 also was that the appellants suit was barred by limitation and was incompetent inasmuch as before the filing of the suit the appellants had not given the statutory notice as required by S. 53 of the Act.On these pleadings several issues were framed by the learned trial Judge; but the principal points in dispute were three :1. Are the properties in suit governed by theIs the suit in time?Is the suit maintainable without notice as required by S. 53 of the Act?The learned trial Judge held that the properties in suit cannot be held to be waqf as defined by the Act. In his opinion it was not the village Singha Parasi but its profits free from land revenue that had been granted in trust for the shrine and its khadims; and since the usufruct of the profits was subject to the condition of resumption and since the profits had not been vested in the Almighty, the grant cannot be construed to be waqf as contemplated by Muhammadan law. On the question of limitation the learned Judge held that S. 5(2) of the Act applied to the suit; but, according to him, though the suit was filed beyond the period of one year prescribed by the said section, it was within time having regard to the provisions of S. 14 of the Limitation Act. The plea raised by respondent 1 under S. 53 of the Act was partly upheld by the learned trial Judge; he took the view that the first three reliefs claimed by the appellants were barred but the fourth was not. In the result the learned Judge granted a declaration in favour of the appellants to the effect that "the shrine in question together with its attached buildings and the Chharawa were not waqf properties within the meaning of the Act." As a consequence, an injunction was issued restraining respondent 1 from removing or dissolving the committee of management of the appellants; and respondents 2 and 3 "not otherwise than provided for under S. 18 of the Act in so far as the management and supervision of those properties are concerned in respect of which the appellants were not being granted a decree for a declaration sought for by them in view of the absence of the notice under S. 53 of the Act". The rest of the appellants claim was dismissed. The decree was passed on April 15, 1947.4. Against this decree respondent 1 preferred an appeal in the High Court of Judicature at Allahabad (Lucknow Bench) and the appellants filed cross-objections. The High Court has reversed the finding of the trial court on the question as to the character of the properties in suit. According to the High Court the said properties constituted waqf as defined by the Act. The High Court has also held that the suit filed by the appellants was barred by limitation and was also incompetent in view of the fact that the statutory notice required by S. 53 of the Act had not been given by the appellants prior to its institution. As a result of these findings the appeal preferred by respondent 1 was allowed, the appellants cross-objections were dismissed, the decree passed by the trial court was set aside and the appellants suit dismissed (April 22, 1953). The appellants then applied for and obtained a certificate from the High Court to prefer an appeal to this Court under Art. 133 of the Constitution. That is how this appeal has come to this Court.5. Though the dispute between the parties raises only three principal issues, the facts leading to the litigation are somewhat complicated; and it is necessary to mention them in order to get a clear picture of the background of the present dispute. It is believed that Syed Salar Mahsood Ghazi was a nephew of Muhammad Ghazni and he met his death at the hands of a local chieftain when he paid a visit to Bahraich. On his death his remains were buried in village Singha Parasi by his followers and subsequently a tomb was constructed. In course of time this tomb became an object of pilgrimage and veneration. Urs began to be held at the shrine every year and it was attended by a large number of devotees who made offerings before the shrine. It is partly from the income of these offerings that the tomb is maintained. Certain properties were endowed by the Emperors of Delhi in favour of this tomb and accretions were made to the said properties by the savings from the income of the endowed properties and the offerings brought by the devotees.The tomb was managed by a body of persons known as Khuddams of the Darga. This body had been looking after the Darga and the performance of ceremonies and other services at the shrine. Whilst the management of the Darga was being thus carried on, Oudh came to be annexed in 1856 and the proclamation issued by Lord Canning confiscated all private properties and inams in the said State. The properties attached to the Darga were no. exception. Fresh settlements were, however, subsequently made by the Government as a result of which previously existing rights were revived usually on the same terms as before. This happened in regard to the properties appertaining to the Darga.It would appear that in 1859 or 1860 a Sanad had been granted to Fakirulla who was the head of the khadims in respect of rent-free tenure of the village Singha Parasi. The grantee was given the rights to collect the usufruct of the village which was to be appropriated towards the maintenance of the Darga. The grantees son Inayatulla was apparently not satisfied with the limited rights granted under the Sanad and so he brought an action, Suit No. 1 of 1865, claiming proprietary rights in the said properties. Inayatullas suit was substantially dismissed on November 11, 1870 by the Settlement Officer. It was held that the proprietary rights of the Government in respect of the properties had been alienated for ever in favour of the charity and so the properties were declared to vest in the endowment. Inayatullas right to manage the said properties under the terms of the grant was, however, recognized. Soon after this decision, it was brought to the notice of the Chief Commissioner in 1872 that the khadims at the Darga were mismanaging the properties of the Darga and were not properly maintaining the Darga itself. On receiving this complaint a committee of Mussalmans was appointed to examine the affairs of the Darga and to make a report. The committee submitted its report on February 20, 1877, and made recommendations for the improvement of the management of the Darga and its properties. According to the committee, it was necessary to appoint a jury of five persons including two khadims to manage the Darga and its properties. Meanwhile some of the lands appurtenant to the Darga had been sold and offerings made by the devotees as well as other properties had become the subject-matter of attachment. In the interest of the Darga, Government then decided to take possession of the properties under the provisions of Pensions Act (XXIII of 1871). This decision was reached after the Government had considered the report made by the Deputy Commissioner on August 31,The result of declaring that the properties were governed by the provisions of the Pensions Act was to free the properties from the mortgages created by the khadims. The management of the Darga and its properties by the Government continued until 1902.During this period Inayatulla attempted to assert his rights once more by instituting a suit in the civil court inIn this suit Inayatulla and two others who had joined him claimed possession of the Darga together with the buildings appurtenant thereto and village Singha Parasi. Their claim was decreed by the trial court; but on appeal the said decree was set aside on July 20,The appellate court of the Judicial Commissioner held that Inayatullas allegation that the proprietary interest in the properties vested in him was not justified. Even so, the appellate court observed that it was not proper or competent for the Government to interfere in the management of the waqf and its properties; the Darga was a religious establishment within the meaning of Religious Endowments Act (XX of 1863) and the assumption of the management of the Darga and its properties was unauthorised and improper.As a result of these observations the Legal Remembrancer to the Government of the United Provinces of Agra and Oudh filed a suit, No. 9 of 1902, under S. 539 (present S. 92) of the Code of Civil Procedure. This suit ended in a decree on December 3,By the decree the properties in suit were declared "to vest in the trustees when appointed". The decree further provided for a scheme for the management of the Darga and its properties. The scheme thus framed came into operation and the trustees appointed under it began to manage the Darga and its properties. The scheme appears to have worked smoothly until 1934. In 1934 Ashraf Ali and others claimed (Suit No. 1 of 1934) that an injunction should be issued restraining the defendants from taking part in the management of the affairs of the Darga. The plaintiffs also prayed that the defendants should be prohibited from spending monies belonging to the waqf on frivolous litigations due to party feelings. On May 7, 1934, the learned District Judge expressed his regret that animosity and party feelings should find their way in the management of a trust and issued an order directing the defendant committee that no. money out of the Darga funds should be spent either in the litigation pending before him, or in any other litigation, without the sanction of the court.For nearly six years after the date of this order the Darga and its properties appear to have been free from any litigation. This peace was, however, again disturbed in 1940 when a suit was filed (No. 1 of 1940) with the sanction of the Advocate-General by five plaintiffs against the managing committee and its trustees for their removal and for the framing of a fresh scheme. On October 16, 1941, the suit was decreed. The managing committee and the trustees, however, challenged the said decree by preferring an appeal to the Chief Court. Their appeal succeeded and on March 7, 1946, the decree under appeal was set aside, though a few minor amendments were made in the original scheme of management.Whilst this litigation was pending between the parties, the United Provinces Muslim Waqfs Act (U. P. XIII of 1936) was passed in 1936 for better governance, administration and supervision of the specified Muslim Waqfs in U. P. In pursuance of the provisions of the Act, respondent 1 was constituted and, under S. 5(1), it issued the notification on February 26, 1944, declaring the properties in suit to be a Sunni Waqf under the Act. After this notification was issued, respondent 1 called upon the committee of management of the waqf to submit its annual budget for approval and to get its accounts audited by its auditors. Respondent 1 also purported to levy the usual contributions against the waqf under S. 54 of the Act. The members of the Committee of management and the trustees with the exception of two persons held that the properties in suit did not constitute a waqf within the meaning of the Act and that respondent 1 had no. authority or jurisdiction to supervise the management of the said properties. That is how the appellants came to institute the present suit on October 18, 1946, against respondent 1. That in brief is the background of the present dispute.

Reasoning:
Since we have reached the conclusion that the High Court was right in holding that the suit was barred under S. 5(2) and was also incompetent under S. 53 of the Act, we do not propose to decide the question as to whether the properties in dispute are waqf within the meaning of the Act. The plea of limitation under S. 5(2) as well as the plea of the bar under S. 53 are in substance preliminary objections to the maintainability or competence of the suit and we propose to deal with these objections on the basis that the properties in dispute are outside the purview of the Act as alleged by the appellants.Thus there can be no. doubt that if the one years limitation prescribed by S. 5(2) applies to the present suit it would be barred by time unless the appellants are able to invoke the assistance of S. 15 of the Limitationis well settled that in construing the provisions of a statute courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective; an attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. In our opinion, on a reading of the provisions of the relevant sub-section as a whole there can be no. doubt that the expression "any person interested in a waqf" must mean "any person interested in what is held to be a waqf". It is only persons who are interested in a transaction which is held to be a waqf who would sue for a declaration that the decision of the Commissioner of the Waqfs in that behalf is wrong, and that the transaction in fact is not a waqf under the Act. We must accordingly hold that the relevant clause on which Mr. Dar has placed his argument in repelling the application of S. 5 (2) to the present suit must not be strictly or literally construed, and that it should be taken to mean any person interested in a transaction which is held to be a waqf. On this construction the appellants are obviously interested in the suit properties which are notified to be waqf by the notification issued by respondent 1, and so the suit instituted by them would be governed by S. 5,(2) and as such it would be barred by time unless it is saved under S. 15 of the Limitationon the pleadings there can be no. doubt that the appellants case was that the Darga and its properties no. doubt constituted a waqf under the Act, but they did not fall within the purview of the Act because they belong to the category of waqfs which are excepted by S. 2 (ii) (a) and (c). The argument based on the application of S. 2 has not been raised before us and so on a consideration of the pleadings of the appellants it would be open to respondent 1 to contend that the appellants are admittedly interested in the waqf and their suit falls within the mischief of S. 5 even if the words "any person interested in a waqf" are literally and strictly construed.We have already held that the relevant words used in S. 15 must be strictly construed without any consideration of equity, and so construed, we have no. doubt that the order on which Mr. Dar has placed reliance before us is wholly outside S. 51 of the Limitation Act. We would, however, like to add that this order did not even in substance create any difficulty against the institution of the present suit. The claim made by the appellants in the present suit that the properties in suit do not constitute a waqf and the declaration and injunction for which they have prayed do not infringe the earlier order even indirectly or remotely. We must, accordingly, hold that the High Court was right in taking the view that S. 15 did not apply to the present suit and that it was therefore filed beyond the period of one year prescribed by S. 5 (2) of theare not impressed by this argument. Column 1 of the notification in question sets out the name of the creator of the waqf as Shahan-e-Mughalia and the name of the waqf as Syed Salar. Mahsood Ghazi. In col. 2 the name of the mutawalli is mentioned while col. 3 describes the properties attached to the waqf. The tomb of Syed Salar Mahsood Ghazi which is the object of charity in the present case is expressly, mentioned in col. 1 and so it is futile to suggest that the tomb or Darga had not been notified as a waqf by respondent 1 under S. 5(1). In regard to the offerings we do not see how offerings could have been mentioned in the notification. They are made from time to time by the devotees who visit the Darga and by their very nature they constitute the income of the Darga. It is unreasonable to assume that offerings which would be made from year to year by the devotees should be specified in the notification issued under S. 5 (1). We must, therefore, reject the argument that any of the suit properties have not been dully notified by respondent 1. under S. 5(1) of the Act. If that be so, it was incumbent upon the appellants to have given the requisite notice under S. 53 before instituting the present suit. The requirement as to notice applies to suits against a Central Board in respect of their acts as well as to suits for any relief in respect of any waqf. It is not denied that the present suit would attract the provisions of S. 53 if the argument that the Darga and the offerings are not notified is rejected. The result is that the suit is not maintainable as a result of the appellants failure to comply with the requirements of S. 5