Beneficiaries Of Waqf To Be Impleaded In Matters Related To Sale Of Waqf Property: Allahabad High Court

The Allahabad High Court has held that the beneficiaries of a Waqf have the right to be impleaded in matters relating to the sale of property of the Waqf. Justice Jaspreet Singh held that such beneficiaries were covered by the concept of necessary and proper parties under Order 1 Rule 10(2) of the Code of Civil Procedure.

The Court held that “where a mutawalli was seeking the permission to de-list certain properties from the register of Waqf then is such a case, at least those parties who, in the knowledge of the mutawalli, were the direct beneficiaries and would be affected ought to have been impleaded.”

Case Background

A Waqf by the name of Waqf Faridi was established by the father and the uncle of the revisionists by deed dated 09.11.1945. The father of the revisionists was the first Mutawalli of the Waqf, which, at the time had two properties listed under it. Relying on Section (6) of the Waqf deed, the father sold a part of one of the holdings of the Waqf and as per the said provision, proceeded to buy to new plots in the name of the Waqf.

Section (6) of the Waqf deed provided that if the income of a property under the Waqf became less than its expenses and if profit could be attained by selling it, then such property could be sold by the Mutawalli on the condition that the proceeds from the sale had to go towards buying another property which would be deemed to be under the Waqf and that the conditions of the existing deed would apply to it as well. Thus, he purchased plot No.3 at 23/B Ashok Marg through sale deed 04.08.1961 and Plot No. 3/1 Mohalla-Karbala, Alamgir, Ram Teerth Marg, Lucknow through sale deed 31.10.1961, from the Sunni Central Board of Waqf using the proceeds from the earlier sale.

The father died on 19.05.1974, making the brother of the revisionists the Mutawalli of the Waqf. The brother, on becoming the Mutawalli, filed an affidavit before the Waqf Board for the inclusion of the two new properties purchased by his father as properties of the Waqf basis of the applicability of Section (6) of the Waqf deed. The brother also got a new lease executed in his own name in respect of the newly acquired property at New Berry Road, Lucknow and subsequently entered into an agreement to sell it. Further, he made an application dated 08.05.2017 before the Waqf Board seeking their permission to de-list the newly acquired properties from the register of the Waqf. The said application was rejected by the Waqf Board by means of order dated 27.02.2018, against which, he filed a case in the Waqf Tribunal.

The Waqf Tribunal heard the pleas of the brother and the Waqf board, being the only two parties before them, and allowed the petition on the ground that the two properties for which the incumbent Mutawalli had sought delisting were lease hold properties, with no permanent dedication, and hence the same could not be treated to be Waqf properties. Thereafter, the brother converted the lease hold rights of the said properties into freehold and by his will dated 09.04.2018, handed over the property to his three daughters in the event of his death. The brother of the revisionists died on 18.10.2018 and after his death, his heirs transferred the plot on Berry Road to M/s Syks Infratech Pvt. Ltd. Aggrieved by the same, the revisionists, filed a revision against the order dated 04.07.2018 primarily on the contention that they were not made a party to the proceedings before the Waqf Tribunal.

High Court Verdict

The Court framed 2 questions: first, whether the instant revision was maintainable with regard to the revisionist who were not parties before the Waqf Tribunal; and second, to determine the status of the lease hold property and whether it could be Waqfed or not.

The Court held that as per the decisions of the Supreme Court in Baluram v. P. Chellathangam, Mumbai International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) ltd. and Ramesh Hirachand Kundanmal v. Municipal Corp. of Greater Bombay, if a Mutawalli was seeking to de-list certain properties from under the Waqf, then parties which as per the Mutawalli were direct beneficiaries were to be impleaded in the proceedings before the Tribunal. It was stated that even thought the Waqf Board was a necessary and proper party to the said proceedings, that could not be the basis to exclude the revisionists who were beneficiaries to the Waqf, especially in the case of a Waqf-Al-Aulad, a private Waqf for the benefit of the descendants of the settlor.

“This Court also explained that a person who has a direct interest in the subject-matter of the suit for specific performance of an agreement of sale may be impleaded as a proper party on his application under Order 1 Rule 10 of the CPC,” held the Supreme Court in Kasturi v. Iyyamperumal.

Further, the Court observed that the revisionist had not presented all the relevant documents before the Court.

“A litigant, who approaches the court is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he (sic) guily of playing fraud on the court as well as on the opposite party,” held the Supreme Court in S.P. Chengalvaraya Naidu (dead) by LRs. v. Jagannath (dead) by LRs.

The Court held that had the revisionist been impleaded and been given the opportunity to present the aforesaid documents before the Tribunal, their impact could have been assessed by the Tribunal in its decision, after hearing out the concerned parties. The Court held that in the absence of the same, the revisionist had been deprived of an opportunity to contest, as they were both necessary and proper parties.

Further, the Court held that despite the fact that the scope of revision was narrower than the rights that the Appellate Authority exercised, in terms of Section 83 (9) of the Waqf Act, 1995, the Court had the power to determine the “legality and propriety” of the order in question. The Court stated that there were a number of questions that required answering with regard to the case of the revisionist. It was held that these questions could have been considered had the persons having the right and interest in the Waqf been impleaded in the proceedings that took place before the Tribunal.

“Unfortunately, the revisionists were not impleaded as a party and even the Waqf Board while filing its response before the Waqf Tribunal did not raise a relevant defence but a formal written statement filed which was nothing but an eye-wash and in such circumstances, this Court is of the clear opinion that the presence of the revisionists before the Waqf Tribunal was necessary and imperative,” held the Court.

The Court held that in such circumstances, it was necessary that the revisionists had to be awarded the opportunity of hearing. Thus, the impugned order was set aside and the proceedings before the Tribunal stood restored. The parties were directed to appear before the Tribunal, and the revisionists were to be allowed to move a formal application for impleadment along with their submissions and the relevant documents that they wanted to bring on record. The Waqf Tribunal was further directed to not grant unnecessary adjournments, hear the matter afresh and pass a reasoned and speaking order, in accordance with law.

Justice Jaspreet Singh clarified that the Court had only considered the matter as far as it concerned the revisionists' right as necessary parties before the Waqf Tribunal with no observations on the merits of the case.

Accordingly, the revision was allowed.

Case Title: Mrs. Ameena Jung and Anr. vs. Faridi Waqf Thru. Mutwalli Mrs. Anush Faridi Khan and Ors. 2024 LiveLaw (AB) 388 [CIVIL REVISION No. - 22 of 2022]

Citation: 2024 LiveLaw (AB) 388

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