When legal heirs are alive and entitled to property income, the property remains private, not a `waqf-alal-aulad`. The High Court quashed the Board's resolution to register it, holding no jurisdiction exists until succession fails.
The impugned order dated 01.12.2015 directing registration was quashed and the writ petition was allowed with no cost.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
W.P.No.40652 of 2015 and W.M.P.No.1 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 14.09.2022
CORAM
THE HON'BLE MR.JUSTICE N.SATHISH KUMAR
W.P.No.40652 of 2015
and
W.M.P.No.1 of 2015
Mohammed Zahoorullah
.. Petitioner
vs.
No.821, Anna Salai, Chennai 600002.
W.P.No.40652 of 2015 and W.M.P.No.1 of 2015
Chennai Zone,.
No.821, Anna Salai, Chennai 600002.
Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for records relating to proceedings in impugned proceedings in e.f.v©.34/15/M6/br dated 01.12.2015 issued by the 2nd Respondent and to quash the same in insofar as it relates to the 2nd Respondent.
For Petitioner : Mr.Inamdar Amenur Rahman For Respondents : Mr. Raghavachari for Mr.Sunny Sheen [for R1 to R4] R5 – died Mr.K. Moorthy [for R6]
O R D E R
The writ petition is filed to quash the proceedings in
e.f.v©.34/15/M6/br dated 01.12.2015 issued by the 2nd Respondent.
the impugned order is a private property. The impugned order has been passed at the instance of the 5th Respondent who is tenant in the property and the property is neither waqf property nor dedicated in favour of the
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Saeedanee Bibi Sahiba Mosque. It is only waqf-ul-Aulad and only on the total extinction of all the inheritors of the testator, Only then the said property will go as a waqf property to the Saeedancee Bibi Sahiba Mosque. Untill all the beneficiaries of Ahmed Hussain, the Testator are alive, the property will never go to the Saeedanee Bibi Sahiba Mosque. Hence it is the contention of the writ petitioner that the impugned order is at the instance of the tenant who have not paid the rents. Therefore, seeks to quash the impugned proceedings.
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direction the impugned order has been passed. Hence, it is his contention
that the impugned order is nothing but non-application of mind and passed at the instance of the third parties to interfere with the private property of the petitioner. In support of his contention he relied upon the judgement in Tamil Nadu waqf Board vs. Larabsha Darga Panruti [CDJ 2007 sc 1267] wherein the apex Court has held that even the property belongs to a private waqf i.e., wak-alal-aulad waqf, the waqf board has no jurisdiction to interfere with the affairs.
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within 15 days, failing which the same will be registered under Section 36 of the waqf Act. Board resolution dated 13.11.2015 when carefully perused,
the same has been passed subsequent to the direction given in the Writ Petition in W.P.No33326 of 2015 to consider the representation of the 6th Respondent herein. The resolution further proceeded as if the counsel appearing for the waqf has admitted before this Court to register the waqf within eight (8) weeks and the resolution came to be passed. It is relevant to note that the counsel appearing for the waqf never stated that the waqf will register the petitioner's property within 8 weeks. What was conceded before this Court is to consider the representation of the petitioner i.e., the 6th Respondent herein, within a reasonable time. Whereas the Board has presumed as if the counsel for the waqf agreed to register the waqf within 8 weeks. Such presumption itself is against the order of the writ petition.
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(3) (r) “waqf” means the permanent dedica tion 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—
(iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, and “wakif” means any person making such dedication;
Property there must be a permanent dedication by a person, any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable. The waqf-alal-aulad is dedicated for same purpose when the line of succession of the execution fails. The document relating to the waqf Property dated 14.07.1951 when carefully perused, though the word “waqf” has been used in the settlement, the intention of the settlor was to settle the property to all his legal heirs and the income to be
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used by the family membes. Only when no one in the family, the property should be given to the Saydani Bibi Sahiba Mosque. As long as the relatives are the legal heirs of the testator in various source available the income should be shared only by the legal heirs as shown in the deed. Though nomenclature of the document appears to be endowment, the intention of the testator can be easily discernible on reading of the entire document. The main purpose of the settlement is only in favour of the family members to share the income from the property. Only when no one is alive in the line of succession, the property shoule be dedicated. Therefore, subject property cannot be considered as waqf property at this stage. Though it falls under the definition of waqf-alal-aulaud as per Section 3(r)(iv) of the Waqf Act, such stage has not attained. But, the line of succession are still alive. Therefore, at this stage, waqf Board passing a resolution and taking control of the property does not arise at all, as the same was settled in favour of the Petitioner and others, to derive the income from the property.
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to succeed or line of succession fails. Admittedly, the property has been settled in the form of distribution of income to various legal heirs. Such being the position, as long as the legal heir are very much alive to derive the income as intended by the settlor, the question of treating the property as pious, religious or charitable would not arise at all. Even though in the event of succession fails or no one in the testator's family thereto inherit the property, the property would go to the Saydani Bibi Sahiba Mosque. Such a stage has not yet reached. Therefore at this stage to register the waqf will not serve any purpose.
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agitating their rights will not arise at all. Accoringly, the impugned order is quashed.
14.09.2022
Speaking/Non speaking order Index : Yes/No Internet : Yes/No ggs
To
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N.SATHISH KUMAR, J.
ggs
W.P.No.40652 of 2015 and W.M.P.No.1 of 2015
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3 issues framed by the court
Whether the Waqf Board could legally register a `waqf-alal-aulad` property while living legal heirs were still entitled to derive income.
Whether the impugned resolution proceeded correctly assuming registration was mandatory immediately after a previous direction to consider representations.
Whether the petitioner was correctly forced to go before the Waqf Board/Tribunal before the line of succession failed.
Colour shows how this judgement treated each authority
Tamil Nadu waqf Board vs. Larabsha Darga PanrutiReferred¶41
Tamil Nadu waqf Board vs. Larabsha Darga Panruti [CDJ 2007 sc 1267]
3 provisions across 1 enactments
Mohammed Zahoorullah
The Chairman, Tamilnadu waqf Board No.1
The Chief Officer/District Revenue Officer, Tamil Nadu waqf Board
The Superintendent of waqfs Tamilnadu waqf Board, Chennai Zone
The Inspector of waqfs Tamil Nadu waqf Board
Rani Ammal
N. Sathish Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
