Waqf Act, 1995: A Beneficiary Of Waqf Cannot Be Described As A Stranger, Mutawalli Acts Merely As Manager- SC

The Supreme Court while dealing with the case of Shia Muslims relating to the Waqf Act, 1995 has observed that a beneficiary of a waqf cannot be described as a stranger to the waqf and that the Mutawalli acts merely as the manager.

The Court said that 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.

The two-Judge Bench comprising Justice K.M. Joseph and Justice Hrishikesh Roy held, “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.”

The Bench noted that though the Mussalman Waqf Act, 1923 was enacted, waqf-alal-aulad was excluded from its operation.

“The first question, which we must consider is, whether a beneficiary of a waqf can succeed on the strength of the plea of adverse possession in regard to the property of the waqf. The High Court has proceeded on the basis that a Mutawalli may not be able to acquire title by adverse possession. Equally, a trustee and a co-owner stand precluded in this regard, it is noted”, observed the Court.

Senior Advocate Salman Khurshid appeared on behalf of the appellant while Senior Advocates P.S. Patwalia and S.R. Singh appeared on behalf of the respondents.

Brief Facts -

The appeals were preferred against the order passed by the Allahabad High Court 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 said respondent again, in turn, put in issue the order passed by the Collector, Bulandshahar which was passed under Section 52(2) of the Waqf Act, 1995.

The Collector was acting on the basis of a requisition given by the Controller of the 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 Act and by the order passed by the Tribunal, it had set aside the order passed by the Collector on various grounds.

The following main questions arose for consideration before the Supreme Court:

• Whether there was a valid Shia Waqf and whether it was registered?

• Whether the High Court was correct in finding that the action was barred as it is not Article 96 of the Limitation Act, which applied but Article 65? What is the interplay between the said Articles in the facts?

• What is the impact of Section 27 of the Limitation Act, 1963 on the facts?

• Whether Section 107 of the Act removes the bar of limitation at any rate?

The Court while dealing with the aforesaid questions asserted, “There cannot be any doubt that Waqf property can be the subject matter of acquisition of title by adverse possession. … That a Mutawalli however cannot acquire rights over waqf property by adverse possession is not open to question.”

The Court further noted that the findings of the High Court clearly hold that there was a valid waqf.

“It was held that Akbar Ali Khan did create a waqf-alal-aulad on 26.07.1934 which was effective in law. … After the death of Akbar Ali Khan, his son Qasim Ali Khan took over as Mutawalli. … Sections 49A and 49B were inserted in the 1960 Act by way of U.P. Act 28 of 1971. Therefore, the sale deed dated 26.09.1974 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”, said the Court.

The Court further said that 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 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. … 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 beneficiary may have benefits coming his way in terms of the waqf deed. He may be clothed with rights in this regard”, observed the Court.

The Court also said that a fiduciary can be taken to be a person who becomes charged with the duty to protect the interest of another and that a fiduciary relationship is founded upon the reposing of confidence by one in another. It further said that a fiduciary relationship is founded upon the reposing of confidence by one in another.

“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. … No doubt, the law of limitation is what prevails as on the date of the suit”, asserted the Court.

The Court, therefore, concluded that the decision in the case of T. Kaliamurthi and another v. Five Gori Thaikkal Wakf and others (2008) 9 SCC 306 would apply to the facts of the present case, and hence the action is barred.

“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”, held the Court.

Accordingly, the Apex Court dismissed the appeals.

Cause Title- Sabir Ali Khan v. Syed Mohd. Ahmad Ali Khan and Others

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