Beneficiary Of Waqf, Not Being Trustee Or Co-Owner, Can Claim Title Of Waqf Property By Adverse Possession: Supreme Court

In a significant judgement, the Supreme Court recently clarified that a beneficiary of a waqf, being neither a trustee nor a co-owner of waqf property, can acquire title through adverse possession even if it is the property of the waqf.

A Bench of Justices KM Joseph and Hrishikesh Roy, while hearing a case relating to the relating to the Waqf Act, 1995 said, “A beneficiary of a waqf, however, being neither a trustee nor a co-owner of waqf property, can acquire title through adverse possession even if it is the property of the waqf it is found……We are of the view that there cannot be any embargo against a beneficiary of a waqf claiming acquisition of title by adverse possession”.

The Bench further observed that a beneficiary of a waqf can’t be described as a stranger to the Waqf.

“A beneficiary of a waqf cannot be described as a stranger to the waqf. No doubt, a beneficiary is not to be conflated in his position with a Mutawalli. The Mutawalli is a manager of the waqf. The property of the waqf, we must remind ourselves, in law vests in the Almighty. The Mutawalli acts merely as the manager. For the purposes of Section 10 of the Limitation Act, no doubt, he is treated as a trustee. A plea of adverse possession undoubtedly requires the requisite intention, viz., animus possidendi. This is besides actual possession for the required period.”

These observations were made in an appeal pertaining to delivery of possession of property to the Waqf Board. The Bench was considering an appeal against an Allahabad High Court order and the revisions, in turn, were directed against the order passed by the Waqf Tribunal on an appeal filed by the Respondent before the Apex Court. The respondent again, in turn, appealed the order passed by the Collector, Bulandshahar, passed under Section 52(2) of the Waqf Act, 1995.

The Collector acted on the basis of a requisition given by the Controller of Waqf Board to obtain and deliver possession of the land in dispute to the Waqf Board. The requisition was made under Section 52(1) of the 1995 Act.

When the matter reached the Top Court, several questions were considered. Relying on earlier precedents, the Bench said there can’t be any doubt that Waqf property can be the subject matter of acquisition of title by adverse possession. And, that Mutawalli cannot acquire rights over waqf property by adverse possession was a settled aspect.

As per the High Court, there was a valid waqf, the Bench noted. With this, it said that the sale deed in September, 1974 by Qasim Ali Khan in favour of his nephew, being in the teeth of the prohibition against a sale without the previous sanction of the Board, was illegal as per Section 49A of the Uttar Pradesh Muslim Waqf Act. This narrative gave rise to the question whether the sale is void as it was in transgression of a statutory mandate, it said.

The important questions that the Court considered were - whether a beneficiary of a waqf can succeed on the strength of the plea of adverse possession regarding the property of the waqf and whether the beneficiary occupy a fiduciary capacity qua the waqf property, preventing him a claim of adverse possession.

The Court observed that in the case of adverse possession, the requirement is that the possession must be hostile to the real owner and since the real owner is the Almighty, the requirement would that the person must have the necessary animus to hold contrary to the title of God.

“In the case of a co-owner while mere assertion of title in himself may hardly suffice as the possession of a co-owner is taken to be possession on behalf of all co-owners a case of ouster being successfully established would entitle the co-owner to succeed.”

The 93-page judgement then said in order for a suit to fall under Article 96, there must be a transfer by a manager which would include a Mutawalli of a waqf and it must be for valuable consideration.

“In order that a suit may fall under Article 96, there must be a transfer by a Manager which would include a Mutawalli of a waqf. It must be for valuable consideration. In order that there is a transfer, it must not be still born. It should not be a void transaction. This is for the reason that a void transaction would not amount to a transfer.”

Proceeding on the basis that the sale executed in 1974 was a void transaction, the Court went ahead with the view taken in Chintamani Sahoo and Anisur Rahman (supra) to hold that Article 96 of the Limitation Act, 1963 cannot be invoked in the case of a void transaction.

On the fiduciary relationship aspect, the Court said,

“While he may be a person who can be treated as “interested” in a waqf within the meaning of Section 2(k) both by reason of the fact that he is a recipient of pecuniary or other benefit and also he may be a descendant of the wakif, it is a far cry from describing him as a Trustee. The beneficiary may have benefits coming his way in terms of the waqf deed. He may be clothed with rights in this regard.”

According to the Bench, a fiduciary can be taken to be a person who becomes charged with the duty to protect the interest of another. The Court agreed the beneficiary of a Waqf is endowed with rights but with no duties. It further explained how a beneficiary and a Trustee are different in terms of these aspects.

“The beneficiary of a waqf is endowed with rights in terms of the waqf deed. We are unable to cull out any duty, as such, to protect the interest of another. No doubt, it could be said that as the property in a waqf, vests in the Almighty, there must be a concern and, undoubtedly, a moral duty to act in a manner that the object of the wakf is fostered. But a beneficiary is not like a Trustee, who assumes possession in his character as a Trustee, coming under the restraint of discarding his character as Trustee and donning the robes of an encroacher or a person asserting hostile title.”

The Apex Court expressed that the decision in the case of T. Kaliamurthi and another v. Five Gori Thaikkal Wakf and others would apply in the present case.

“We have noticed that the debate in the High Court essentially centred around the question whether Article 96 would apply and applying the same, the appellant could get around the impact of Article 65 read with Section 27 of the Act. We have found that Article 96 has no application. Even in regard to a proceeding under the Act be it Section 52 if as on the date the action is taken, the title in the property stood vested with the person in possession by virtue of Section 27 of the Limitation Act then it may not be permissible to ignore the right which had been acquired. The decision in T. Kaliamurthi (supra) would apply in the facts and the action is barred”, the Bench stated while dismissing the appeals.

Case Title: Sabir Ali Khan v. Syed Mohd. Ahmad Ali Khan and Others | CIVIL APPEAL Nos. 7086-7087 OF 2009

Citation : 2023 LiveLaw (SC) 323

Waqf Act 1995- A beneficiary of a waqf, however, being neither a trustee nor a co-owner of waqf property, can acquire title through adverse possession even if it is the property of the waqf it is found-No embargo against a beneficiary of a waqf claiming acquisition of title by adverse possession- para 55, 63

Waqf Act 1995- a beneficiary of a waqf is not a fiduciary-The beneficiary of a waqf is endowed with rights in terms of the waqf deed. We are unable to cull out any duty, as such, to protect the interest of another. No doubt, it could be said that as the property in a waqf, vests in the Almighty, there must be a concern and, undoubtedly, a moral duty to act in a manner that the object of the wakf is fostered. But a beneficiary is not like a Trustee, who assumes possession in his character as a Trustee, coming under the restraint of discarding his character as Trustee and donning the robes of an encroacher or a person asserting hostile title - 65, 66

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