01/02/2021
A case Law – Wakf Properties
A. FACTS
1. “Wakf” is an unique creation of Mahomedan Law and means a permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable and includes— (i) a Wakf by user but such Wakf shall not cease to be a Wakf by reason only of the user having ceased irrespective of the period of such cesser; (ii)“grants” including mashrut-ul-khidmat for any purpose recognized by the Muslim law as pious, religious or charitable; and (iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim law as pious, religious or charitable, and “wakif” means any person making such dedication.
2. A prestigious Cooperative Housing Society henceforth to be referred to as “Society” situated in a posh area of Mumbai with flats costing between 12 Cr. and 17 Cr has a history. The building is constructed on a Wakf land vide Wakf Deed executed in 1958 by wakifs “a” and “B” (Shia Muslims). The then Mutavallis of the Wakf Mr. “C” and Mrs. “D” had licensed the land to a Constructions Co. herein referred to as the “licensee” who built several the residential flats, garages and storerooms on the land and sold to various individuals/parties. Years thereafter the then new Mutavallis inducted into the Wakf in 1966 being Mrs. “D”, Mr. “E” and Mrs. “F” as ‘Lessors’ have leased the properties to the ‘lessees’ a Coop. Hsg. Society herein referred to as “Society” vide a Lease Deed in 1967.
3. The lease is for 999 years and the Lease Deed is duly registered after Stamp Duty adjudication by the Collector. The Lease Deed also provides purchase of reversionary rights before February 1979. This option has not been utilized by the “Society” or any other person.
4. The “Society” seeks opinion on the present legal status of the title of the land and whether reversionary rights can still be exercised.
B. LEGAL IMPLICATIONS – LEASE VALIDITY
1. Section 36-A of The Wakf Act 1954 specifies the duties of the Mutawalli as follows:
36 A. 1*Transfer of immovable property of Wakfs. : Notwithstanding anything contained in the Wakf Deed, no transfer of any immovable property of a Wakf by way of-
(i) Sale, gift, mortgage or exchange; or
(ii) Lease for a period exceeding three years in the case of agricultural land, or for a period exceeding one year in the case of non-agricultural land or building, shall be valid without the previous sanction of the Board.
2. The present lease is granted for 999 years. The Lease Deed is silent on whether a prior permission of the Board/Court has been obtained in respect thereof. In the event no such permission had been obtained the consequences provided in Sec.36-B of the Act 1954 are attracted which is reproduced hereinbelow:
36B. Recovery of Wakf property transferred in contravention of section 36A.
(1) If the Board is satisfied, after making an inquiry in such manner as may be prescribed, that any immovable property of a Wakf entered as such in the register of Wakfs maintained under section 26, has been transferred without the previous sanction of the Board in contravention of the provisions of section 36A, it may send a requisition to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it.
(2) On receipt of a requisition under sub-section (1), the Collector shall pass an order directing the person in possession of the property to deliver the property to the Board within a period of thirty days from the date of the service of the order.
(3) Every order passed under sub-section (2) shall be served-
(a) By giving or tendering the order or by sending it by post to the person for whom it is intended ; or
(b) If such person cannot be found, by affixing the order on some conspicuous part of his last-known place of abode or business, or by giving or tendering the order to some adult male member or servant of his family or by causing it to be affixed on some conspicuous part of the property to which it relates:
Provided that where the person on whom the order is to be served is a minor, service upon his guardian or upon any adult male member or servant of his family shall be deemed to be service upon the minor.
(4) Any person aggrieved by the order of the Collector under sub-section (2) may, within a period of thirty days from the date of the service of the order, prefer an appeal to the district court within whose jurisdiction the property is situate and the decision of the district court on such appeal shall be final.
Explanation.-In this sub-section, "district court" means, in any area for which there is a city civil court, that court, and, in any other area, the principal civil court of original jurisdiction.
(5) Where an order passed under sub-section (2) has not been complied with and the time for appealing against such order has expired without an appeal having been preferred or the appeal, if any, preferred within that time has been dismissed, the Collector shall obtain possession of the property in respect of which the order has been made, using such force, if any, as may be necessary for the purpose and deliver it to the Board.
(6) In exercising his functions under this section, the Collector shall be guided by such rules as may be made in this behalf by the State Government.] .
3. COMMENT:
Ref. Mulla’s Principles of Mahomedan Law, Edn.16 year 1968 as then The Wakf Act 1954 applicable.
Commentary on Sec.208-Power of Mutawalli to grant lease.
“It follows that a permanent lease cannot be granted by a Mutawalli without leave of Court. Such leave must be obtained on an application to the District Judge. A Mutawalli can not validate such a lease by an order made in a pending Suit. A single Judge of the Bombay High Court has held that where a Mutawalli has leased wakf property for a long term without sanction of the Court, the Court has the power to sanction the lease retrospectively if it is satisfied that the transaction is for the benefit of the wakf (Zafarbhai v/s Chaganlal 1941, 41 Bom L.R.854; see also Sundaramurthy v/s Chatti Bibi 1942,2 MLJ 164 (42); 42 AM 641).
C. LEGAL IMPLICATIONS REVERSIONARY RIGHTS
Reversion is included in Sec.54 of the Transfer of Property Act 1882 and is thus now barred by the Limitation Act 1963.
D ADVICE/OPINION
In the best interests of the Society and its resident members and to make the title of the land perfect forever, the Mutawallis be requested to seek post-facto retrospective approval of the Court/Shia Wakf Board for the regularization of the grant of the Lease beyond the limit for 999 years as included in Lease Deed dated 8th March 1967.
Pragmatically, do not wake-up the sleeping dog
