Summary
Land in a Shia waqf-alal-aulad created in 1934 was sold in 1960 by a beneficiary and in 1974 by the mutawalli on the strength of a compromise disowning the waqf, recorded without the Waqf Board's sanction. In 1997 the Board invoked Section 52 of the Waqf Act, 1995 to recover possession; the Tribunal and High Court set the Collector's order aside as the purchasers had perfected title by adverse possession. The Supreme Court affirmed: the waqf was valid; the compromise and 1974 sale were void for want of sanction; Article 96 of the Limitation Act applies only to voidable transfers by a manager, so Article 65 applied and title was extinguished under Section 27 twelve years after each sale; a beneficiary, unlike a mutawalli, is not a fiduciary and may acquire waqf property by adverse possession; and Section 107 of the 1995 Act does not revive an extinguished title.
Issues
- Whether a waqf-alal-aulad created in 1934 by a Shia Muslim was a valid waqf, and whether registration was compulsory under the U.P. Muslim Waqfs Act, 1936.
- Whether a compromise before the consolidation authority disowning the waqf, and a sale by the mutawalli based on it, were void for want of the Waqf Board's sanction under Sections 69 and 49A of the U.P. Muslim Waqfs Act, 1960.
- Whether Article 96 or Article 65 of the Limitation Act, 1963 governs recovery of waqf property transferred by a void sale, and the effect of Section 27 of that Act.
- Whether a beneficiary of a waqf can acquire title to waqf property by adverse possession, and whether Section 107 of the Waqf Act, 1995 revives a title already extinguished.
Provisions considered
- Article 96 (successor to Article 134B of the 1908 Act), Limitation Act, 1963Applies to a suit by a manager of a religious or charitable endowment to recover property transferred by a previous manager for valuable consideration, with time running from the transferor's death, resignation or removal or the plaintiff's appointment, whichever is later; it presupposes a transfer and does not cover a void transaction, nor a transfer by a person who was not the manager. (¶¶ 18, 19, 20, 21, 23, 29, 61, 62)
- Article 65 and Section 27, Limitation Act, 1963Where a transfer is void ab initio the transferee is a trespasser whose possession is adverse from the date of transfer; on expiry of twelve years the right to the property stood extinguished in 1972 and 1986 respectively. (¶¶ 17, 35, 70, 72)
- Sections 49A, 49B and 69, U.P. Muslim Waqfs Act, 1960No transfer of waqf immovable property is valid without the Board's previous sanction, and no proceeding by or against a mutawalli relating to waqf title may be compromised without its sanction; the 1974 compromise and sale violated these mandates and were void, reviving the earlier consolidation orders recording the waqf. (¶¶ 33, 34, 35, 54, 61)
- Sections 51, 52, 107 and 112(3), Waqf Act, 1995Section 52 permits the Board to requisition the Collector to recover property transferred without sanction; the 1960 Act's corresponding provisions survive through the saving in Section 112(3); Section 107 excludes the Limitation Act for suits for possession of waqf property but does not revive a title extinguished before 1 January 1996. (¶¶ 36, 37, 38, 40, 41, 69, 70, 71, 72)
- Sections 2(2), 3(1) and 38(1), U.P. Muslim Waqfs Act, 1936Though the Act did not apply to a waqf whose income was mainly for the waqif's family, Section 38(1) required every waqf, whether subject to the Act or not, to be registered, so the 1934 waqf was compulsorily registrable. (¶¶ 45, 46, 47, 50)
- Sections 14 and 88, Indian Trusts Act, 1882A trustee may not set up a title adverse to the beneficiary and a fiduciary may not profit from his position; a beneficiary of a waqf owes no such duty and is not a fiduciary. (¶¶ 65, 66)
Held
- The waqf of 1934 was a valid Shia waqf-alal-aulad, as the civil court and High Court had held in earlier litigation and the consolidation authorities had found; the deed set apart a sum for charitable purposes and provided for charity on extinction of the line, and following U.P. Sunni Central Board of Waqf v. Hasan Jehan Begum the whole property is the subject of the waqf regardless of the share of income earmarked for charity. Alienation of most of the waqf land by the sons does not detract from its validity. (¶¶ 31, 43, 50, 51, 52, 53, 54)
- The compromise of 1974 disowning the waqf and the consolidation order based on it were in the teeth of Section 69 of the 1960 Act, so the earlier consolidation orders recording the waqf revive; the 1974 sale by the mutawalli without the Board's previous sanction under Section 49A, a statutory command enacted for a definite purpose with no provision for validation, was void and not merely voidable. (¶¶ 32, 35, 54, 61)
- Article 96 of the Limitation Act requires a transfer by a manager for valuable consideration; a void transaction is no transfer at all, so Article 96 cannot be invoked for a void sale, as held in Chintamani Sahoo and Anisur Rahman, which are approved. The 1960 sale was by a beneficiary, not the mutawalli, and the 1974 sale was void; Article 65 therefore applied to both, adverse possession ran from the dates of sale, and the right to recover stood extinguished under Section 27 by 1986 at the latest. (¶¶ 20, 21, 61, 62, 70)
- Waqf property can be acquired by adverse possession, though a mutawalli, trustee or co-owner cannot do so; a beneficiary, who merely receives benefits under the deed and owes no duty to protect the interest of another, is not a fiduciary and is under no embargo against acquiring title to waqf property by adverse possession, particularly where he was not in possession in any capacity before the sale. (¶¶ 22, 55, 56, 63, 64, 65, 66, 67, 68)
- Section 107 of the 1995 Act, which came into force on 1 January 1996, cannot revive a title already extinguished under the earlier law, since a new limitation provision does not revive a barred right or take away a vested right, as held in T. Kaliamurthi; the same applies to a proceeding under Section 52 where title had already vested in the person in possession. (¶¶ 69, 70, 71, 72)
Result
Appeals dismissed; High Court order dated 02.05.2008 affirming the Waqf Tribunal's setting aside of the Collector's order under Section 52 of the Waqf Act, 1995 upheld on the ground that the respondents had perfected title by adverse possession; parties to bear their own costs.