SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND OTHERS

A force on 01.01.1996, leading to invoking the power under Section 52 of the Act, be impermissible?

36Copy pinpoint36. Section 52 of the Act, which is the fountainhead of the action by the Controller of the Waqf Board and the Collector, is a sequel to Section 51. Section 51(1), inter alia, before its substitution by Act 27 of B 2013, read as follows: “51(1) Notwithstanding anything contained in the wakf deed, any gift, sale, exchange or mortgage of any immovable property which is waqf property, shall be void, unless such gift, sale, exchange or mortgage is effected with the prior sanction of the Board: C Provided that no mosque, dargah or khangah shall be gifted, sold, exchanged or mortgaged except in accordance with any law for the time being in force.”

37Copy pinpoint37. We may only notice that Section 51(1)(a) as substituted by Act 27 of 2013, subject to the provisos declares a sale, gift, exchange or D mortgage or transfer of waqf property to be ab initio void. Section 52 of the Act provides that if the Board is satisfied, after making any inquiry, as may be prescribed, that any immovable property of a waqf entered as such in the Register of Waqfs maintained under Section 36, has been transferred without previous sanction of the Board in contravention of E Sections 51 or 56 of the Act, it may send a requisition to the Collector of the place within which the property is situated to obtain and deliver possession. The Collector is bound to pass an order directing the person in possession to deliver the property to the Board within 30 days from the receipt of the Order. It is under this provision that the impugned Orders came to be passed. F

38Copy pinpoint38. It will be noticed that the Act came into effect on 01.01.1996. Section 52 empowers the Board to send a requisition to the Collector, if property has been transferred without the previous sanction of the Board in contravention of Section 51, inter alia. We have noticed that Section 51 has provided that any sale of property, which is waqf property, without G the previous sanction of the Board, would be void. The two sales in this case took place prior to 01.01.1996. The first sale is dated 14.10.1960 whereas the second sale is dated 13.09.1974.

39Copy pinpoint39. Section 112 of the Act provides for repeal and sales. It reads as follows: H

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OTHERS [K. M. JOSEPH, J.]

“112. Repeal and savings. —(1) The Wakf Act, 1954 (29 of 1954) A and the Wakf (Amendment) Act, 1984 (69 of 1984) are hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of this Act. B (3) If, immediately before the commencement of this Act, in any State, there is in force in that State, any law which corresponds to this Act that corresponding law shall stand repealed: Provided that such repeal shall not affect the previous operation of that corresponding law, and subject thereto, anything done or C any action taken in the exercise of any power conferred by or under the corresponding law shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act was in force on the day on which such things were done or action was taken.” D

40Copy pinpoint40. Section 49B of the 1960 Act is pari materia with Section 52 of the Act. In other words, it provided that the Board may, if a transfer is made contravening Section 49A of the 1960 Act, send requisition to the Collector for recovery of possession. Section 49A of the 1960 Act also provided on similar terms as provided in Section 51(1) of the Act that for E a sale of property comprised in a waqf, previous sanction of the Board was necessary. As far as Sections 49A and 49B came to be inserted by Act 28 of 1971 and the second sale took place in 1974, which is after the insertion of Sections 49A and 49B in the 1960 Act, therefore, the power, indeed, vested with the Board to take action for recovery of possession under Section 49B. Under Section 112(3) of the Act, we proceed on the F basis that the 1960 Act would stand repealed. However, the proviso declares that the repeal would not affect the previous operation of the corresponding law. The corresponding law, in this case is Section 49A read with Section 49B. Action taken in the exercise of the power thereunder, is to be deemed as taken in the exercise of powers under the G Act. The powers under the Act must be treated as flowing from Section 52 of the Act. For the said purpose, the proviso to Section 112(3) provides that the provisions in the Act, which in this case would be Section 52, must be treated as being on the Statute Book.

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41Copy pinpoint41. But then could it be said that no action has been taken under Section 49B of the 1960 Act with regard to the transfers in question and, therefore, Section 112(3) of the Act, may have no application? We proceed on the basis that, the power exists as for reasons to follow, the appellants will fail on surer foundation.

42Copy pinpoint42. A contention has been raised that the waqf-alal-aulad in question cannot be treated as a waqf under the Act. It is the case of the first respondent that the Mussalman Waqf Validating Act, 1913 did not provide for registration of the waqf. Though the Mussalman Waqf Act, 1923 was enacted, waqf-alal-aulad was excluded from its operation. Neither the 1936 Act nor the 1960 Act applies and the appellant cannot C claim that the waqf was registered under either enactment. There is no religious or charitable purpose. In view of the specific exclusion in the 1936 Act, it is contended that the Act did not apply to the waqf as the entire income was to go for the benefit of the members of the family of the waqif.

43Copy pinpoint43. The waqf in question is created by Akbar Ali Khan by deed dated 26.07.1934. It is, no doubt, a waqf-alal-aulad. A waqf-alal-aulad is a waqf under Mohammaden Law. It was the Privy Council which in the case of Abdul Fatah Mohammad Ishak v. Russomy Dhar Chaoudhary22 held that if the charity is illusory or so small, it could not be treated as a waqf. This Judgment led to the passing of the Mussalman Waqf Validating Act, 1913. Sections 3 and 4 of the said enactment reads as follows: “3. It shall be lawful for any person professing the Musalman faith to create Wakf which in all other respects is in according with the provisions of Musalman Law, for the following among other purposes: - (a) For the maintenance and support wholly or partially of his family, children or descendants and (b) where the person creating a Wakf is a Hanafi Musalman, also for his own maintenance and support during his life-time or for the payment of his debts out of the rents and profits of the property dedicated.

22 H 22 Indian Appeals 76

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OTHERS [K. M. JOSEPH, J.]

Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Musalman Law as a religion, pious or charitable purpose of a permanent character.

4. No such Wakf shall be deemed to be invalid merely because the benefit reserved therein for the poor or other religious, pious or charitable purposes of a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the Wakf.”

44Copy pinpoint44. Thereafter, the Mussalman Wakf Act, 1923 came to be passed. It applied to the whole of British India. The definition of Wakf contained in Section 2(e) was as follows: “2(e) ‘Wakf’ means the permanent dedication by a person professing the Musalman faith of any property for any purpose recognized by the Musalman Law as religious, pious or charitable, but does not include any Wakf, such as is described in S.3 of the D Musalman Wakf Validation Act, 1913, under which any benefit is for the time being claimable for himself by the person by whom the Wakf was created or by any of his family or descendants.” (Emphasis Supplied)

45Copy pinpoint45. Section 3 of the 1923 Act obliged the Mutawalli to furnish E statement containing certain particulars to the competent Court. Notice of the Statement was to be published under Section 4. The 1923 Act provided for audit of accounts and the provision for expense which could be incurred by the Mutawalli came to be inserted. Section 10 provided for penalty. Certain waqfs were excluded from its purview under Section F

12. In the United Provinces, which meant the United Provinces of Agra and Awadh, the 1936 Act, came to be enacted. Section 2 thereof read as follows: “2(1) Save as herein otherwise specifically stated, this Act shall apply to all Wakfs, whether created before or after this Act comes G into force, any part of the property of which is situate in the United Provinces. (2) This Act shall not apply to:- (i) a Wakf created by a deed, if any, under the terms of which not less than 75 per cent of the total income after deduction of land H

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A revenue and cesses payable to Government of the property covered by the deed of Wakf, if any, is for the time being payable for the benefit of the Wakif or his descendants or any member of his family: (ii) a Wakf created solely for either of the following purposes: B (a) The maintenance and support of any person other than the Wakf or his descendants or any member of his family, (b) The celebration of religious ceremonies connected with the death anniversaries of the Wakif or of any member of his family or any of his anscestors; C (c) The maintenance of private imambaras, tombs, and grave- yards, or (d) The maintenance and support of the Wakif or for payment of his debts, when the Wakif is a Hanafi Musalman; and D (iii) the Wakfs mentioned in the schedule. Provided that if the Mutawalli of a Wakf to which this Act does not apply wrongfully sells or mortgages, or suffers to be sold in execution of a decree against himself, or otherwise destroys the whole or any part of the Wakf property, the Central Board E may apply all or any of the provisions of this Act to such Wakf for such time as it may think necessary. Explanation-A Wakf which is originally exempt from the operation of this Act may, for any reason subsequently, become subject to such operation, for example, by reason of a higher percentage of F its income becoming available under the terms of the deed for public charities.” (Emphasis supplied)

46Copy pinpoint46. Section 3(1) of the 1936 Act, defined ‘Wakf’ as follows:

G “3(1) ‘Wakf’ means the permanent dedication or grant of any property for any purposes recognized by the Musalman law or usage as religious, pious or charitable and, where no deed of Wakf is traceable, includes Wakf by user, and a Wakif means any person who makes such dedication or grant.”

47Copy pinpoint47. Section 38 (1) of the 1936 Act, read as follows: H

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OTHERS [K. M. JOSEPH, J.]

“38(1) Every Wakf whether subject to this Act or not and whether created before or after the commencement of this Act shall be registered at the office of the Central Board of the sect to which the Wakf belongs. (Emphasis Supplied)

48Copy pinpoint48. It is, no doubt, true that in Fazlul Rabbi Pradhan (supra), in the context of the question whether the waqfs were affected by the passing of the West Bengal Estates Acquisition Act, 1953, and, in that, the waqf in question fell within the definition of the words ‘charitable purpose’ and ‘religious purpose’, the Court held, inter alia, as follows: “13. These cases led to agitation in India and the Mussalman C Wakf Validating Act 1913 (6 of 1913) was passed. It declared the rights of Mussulmans to make settlements of property by way of wakf in favour of their families, children and descendants. For the purposes of the Validating Act the term “wakf” was defined to mean “the permanent dedication by a person professing the D Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable”. This gave a wider meaning to the word wakf but only for the purpose of taking them out of the invalidity which would have otherwise existed and which was already authoritatively stated to have so existed. E

14. After the passage of these two Acts wakfs, in which the object was the aggrandisement of families of wakifs without a pretence of charity in the ordinary sense, became valid and operative. But the intention of the Validating Act was not to give a new meaning to the word “charity” which in common parlance is a word denoting a giving to someone in necessitous F circumstances and in law a giving for public good. A private gift to one’s own self or kith and kin may be meritorious and pious but is not a charity in the legal sense and the courts in India have never regarded such gifts as for religious or charitable purposes even under the Mahomedan law. It was ruled in Syed Mohiuddin G Ahmed v. Sofia Khatun [44 CWN 974] that neither the Wakf Validating Act 1913 nor the Shariat Act 1937 had the effect of abrogating the Privy Council decisions on the meaning of “charitable purpose” as such.”

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49Copy pinpoint49. No doubt, the Court was dealing with a case of a waqf-alal- aulad. The Judgment must essentially be viewed in the context of the definition of ‘religious and charitable purpose’ provided in the Act in question.

50Copy pinpoint50. The Wakf in question is dated 26.07.1934. The 1936 Act applied to Wakfs created before or after the commencement of the Act. However, Section 2(2) declares that the Act shall not apply to certain waqfs. They included a waqf whereunder not less than 75 per cent of the total income, after deduction of certain sums, was for the time being payable for the benefit of the waqif or his descendants. However, Section 38(1) of the 1936 Act made it clear that every waqf, whether subject to the Act or not and whether created or after the commencement of the 1936 Act, shall be registered. Proceeding on the basis that the waqf dated 16.07.1934 was waqf-alal-aulad and which, in terms of Section 2(2)(i), was not subject to the provisions of the 1936 Act, it was compulsorily registerable in view of Section 38(1). Any waqf which is registered under the 1936 Act would also be deemed to be registered under the 1960 Act. That is, though the 1936 Act did not apply to certain wakfs, but when it comes to registration under Section 38, it was mandatory for every wakf to be registered (i) whether subject to the Act and ii) whether created before the Act or not. Thus, the registration of the Wakf dated 16.07.1934, was in fact compulsory under Section 38 E of the 1936 Act.

51Copy pinpoint51. It has been contended by Shri P.S. Patwalia, learned Senior Counsel that there was really no waqf as known in law and the waqf in question contemplated only disbursement of the entire income for the benefit of the descendants of the waqif. Quite apart from the fact that the question engaged the attention of the Civil Court, including the High Court, in the first round of litigation, wherein, it was found that there was a valid waqf from the standpoint of the Shia law and the Consolidation Authorities also found that there was a waqf till the Deputy Director, Consolidation revisited the matter only on the basis of the compromise between the brothers, the terms of the waqf did contemplate a certain sum being set apart for charitable purposes as correctly pointed out by Shri S.R. Singh, learned Senior Counsel for respondents 2 and 4. In this regard, we notice the stipulation in the deed that a sum of Rs. 500/- will be spent on charitable purpose such as Muazzin and lighting in the mosque and emambara, majlallse ashra of the sacred month of Moharram. No H

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OTHERS [K. M. JOSEPH, J.]

doubt, there is the residuary clause, which reveals that the wakif has A provided that if descendants cease to exist, the income from the endowed property will be managed by a Committee to be spent for charitable purposes.

52Copy pinpoint52. A Division Bench of the High Court of Allahabad in the case of U.P. Sunni Central Board of Waqf and Another v. Hasan Jehan B Begum and Another23 had to deal with an argument that in a case of waqf-alal-aulad, having regard to the definition of the word ‘waqf’ in Section 3(11) of the 1960 Act, whether the entire properties were dedicated for religious, pious or charitable purpose, as contemplated in Section 3(11), defining the word ‘waqf’ or only to the limited extent, i.e., to the extent of the income which was earmarked for such purposes. C We may note in this regard, the following discussion: “5… With great respect, we are unable to find ourselves in agreement with the view taken by the learned single Judge as to us it appears that the extent of property cannot be determined on the basis of the income. It is the dedication which has to be seen, if the entire property is dedicated for two purposes, namely, for secular purposes and for religious, pious or charitable purposes, then the entire property will be deemed to be dedicated for both purposes. Unless it is possible to determine the extent to which the property has been dedicated for religious, pious and charitable purposes, the entire property will have to be deemed to be dedicated to God and subject-matter of the Waqf. For excluding the property it should either be known or be determinable from the deed of waqf that a particular property or part thereof is not dedicated. Learned counsel for the petitioners-respondents contended that it is the income that is the criterion for determining the extent of dedication. But, we find that it is not the income which is contemplated by the definition of waqf but the property. The relevant words are ‘to the extent to which the property is dedicated’. The income arises out of property and it can vary from time to time. It may be larger than the amount fixed for the religious, pious or charitable purposes or may be less than that. It is also not possible to allocate property relative to the amount or to say that this amount of money must come from a particular portion or property out of the lot or from a particular proportion of 23 AIR 1977 All 18 H

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A that property. The entire property, which is the subject-matter of the waqf, is liable for meeting the purposes religious, pious or charitable. If the entire property, which is the subject-matter of the waqf, is liable for meeting the expenses, it cannot be said that the waqf or dedication is only to the extent of some undeterminable and unascertainable property out of the total property, which is B the subject-matter of the Waqf. In our opinion, unless it is possible to determine the extent of the property out of the property which is the subject-matter of the waqf-alal-aulad meant for religious, pious or charitable purposes, the entire property will be the subject- matter of the waqf within the meaning of the Waqfs Act. The C question of determining the extent can practically arise only in a case in which there are a number of properties and some of them are earmarked for purposes recognised as religious, pious or charitable and others earmarked for the benefit of the waqif or his descendants. It may also arise in a case where a share in a property or a part of a property has been earmarked for the two purposes. In the present case neither of the two waqfs contain such a direction. The entire property has been dedicated for the purposes recognised as religious, pious and charitable. It may also be possible to say that the property, which has been dedicated for purposes religious, pious or charitable, is the entire extent of the property. The entire properties under the deeds will, therefore, be deemed to be waqf within the meaning of Section 3(11) of the Waqfs Act.”

53Copy pinpoint53. We would think that the aforesaid view represents the correct approach and the extent of the income, which is set apart for the purpose, be it religious, pious or charitable, in the facts, cannot detract from the dedication of the whole property.

54Copy pinpoint54. Another contention taken is that vast extents of wakf property had been alienated by the sons of the original wakif and only about 100 bighas which constitute the subject matter of the appeals before us remained. We are of the view that the argument is beside the point. The fact that the property of the waqf has been dealt with in a manner, which is illegal, or that it was not questioned, cannot deflect us from either finding that there was a valid waqf or that the property which remained of the waqf, must be dealt with in accordance with law. The compromise before the Deputy Director (Consolidation) and the order H

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OTHERS [K. M. JOSEPH, J.]

based on the same are in the teeth of Section 69 of the 1960 Act, therefore, A the orders passed by the Consolidated Officer and Settlement Officer about the Waqf would revive.

55Copy pinpoint55. Two questions remain. 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. B 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. 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. C

56Copy pinpoint56. 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 D 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. Does the beneficiary occupy a fiduciary capacity qua the waqf property, which would prevent him from advancing a claim of adverse possession? What in the context do the words ‘fiduciary capacity’ convey? A beneficiary would be entitled to receive benefits in terms of the waqf deed. Does he have any obligation in regard to the waqf property? Is there a duty in other words which he must perform by virtue of the fact that he is constituted a beneficiary under the waqf? Is the assertion of hostile title, an indispensable requirement to constitute adverse possession irreconcilable and incompatible with the position of the beneficiary? In the case of adverse possession, since a requirement is that the possession must be hostile to the real owner and since the real owner is the Almighty, the requirement would be that such a person must has 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.

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57Copy pinpoint57. We may notice the following statement from Mulla on “Principles of Mohammadan Law” (22nd Edition): “207. Power of mutawalli to sell or mortgage. A mutawalli has no power, without the permission of the Court, to mortgage, sell or exchange waqf property or any part thereof, unless he is expressly empowered by the deed of waqf to do so.”

58Copy pinpoint58. The learned Author thereafter refers to Section 51(1) of the Act under which a sale could no doubt be effected after obtaining prior sanction of the Board. The change brought about by the Amending Act of 2013 by the insertion of sub-section (1A) in Section 51 of the Act by which a sale inter alia has been declared void is also noticed. The embargo against sale unless it is expressly authorised by the waqf deed is dealt with under the caption “Unauthorised alienation and limitation” and it reads as follows: “the law as regards the period of limitation for a suit to follow waqf property in the hands of a mutawalli and to set aside unauthorized transfers of such property, and to recover possession thereof from the transferee, was amended and altered by Act 1 of 1929. The amendments consist of an addition of para 2 to s. 10 of the original Act (Limitation Act, 1908), and of the insertion of new articles, being Arts. 48B, 134A, 134B and 134C.” E

59Copy pinpoint59. We have already noticed the purport of Article 134B of the Limitation Act, 1908 and the change brought about in the successor provision, namely, Article 96 of the Limitation Act, 1963.

60Copy pinpoint60. In Anisur Rahman and others v. Sheikh Abul Hayat24, a F Division Bench of the High Court had occasion to deal with the very question which we are confronted with. The Court went on to hold as follows: “7. In Mukherjea’s well known book on Hindu Law of Religious and Charitable Trust, 2nd edition, at page 274, the said Calcutta decision was referred to and it was further pointed out at page G 282 that limitation in case of an unauthorised alienation would start as soon as possession vested with regard to any property. To quote his own words at page 282:

24 H AIR 1965 Patna 390

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OTHERS [K. M. JOSEPH, J.]

“The correct principle deducible from these cases is that the possession of the alienee would become adverse as soon as he is without any title to the property. If the transfer is void ab initio, the possession of the transferee is adverse from the date of the transfer. If, on the other hand, it is not void, but voidable merely at the instance of the succeeding manager, the possession cannot be adverse until the office of the transferring manager ceases.”

8. In other words, the applicability of either Article 144 or Article 134B of the Limitation Act would depend on whether the transfer was void ab initio or only voidable at the instance of the succeeding manager. C

9. A transfer which is void ab initio is in the eye of law no transfer at all and hence will not come within the scope of Article 134B. Moreover, that Article refers to transfer made by a manager of an endowment. If a person transfers property treating it as his own private property, it is difficult to hold that merely because he happens to be the manager of the endowment on the date of the transfer and the property is the properly of the endowment such transfer should come within the scope of that Article. Mr. Hussain for the appellants could not cite any decision after AIR 1946 Cal 473 in support of his extreme contention to the effect that the principle laid down in that decision his no application in respect of void transfers made after the coming into force of the amendment of 1929. On the other hand, a Division Bench of the Orissa High Court in Govinda Jiew Thakur v. Surendra Jena, AIR 1961 Orissa 102 applied the principle; of that decision and held that transfers void ab initio are outside the scope of Article 134B; a F transferee in such a case is a mere trespasser and his title will be perfected by the twelve years adverse possession. With respect I am inclined to agree with this view. There is also a Madras decision in V. Rajaram v. Ramanujam Iyengar, AIR 1963 Mad 213 paragraphs 4 and 5 to the same effect.” G

61Copy pinpoint61. Therefore, the principle, which emerges, is this. 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 H

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A transaction would not amount to a transfer. An unauthorized alienation as understood in Mulla (supra), which we have referred to, viz., a transfer, which was made by a Mutawalli, for which, there was no authority in the waqf deed, would constitute a transfer to which Article 134B and Article 96 would have applied. With the advent of the laws relating to Waqfs which included the 1960 Act in Uttar Pradesh, the Mutawalli B was obliged to obtain the previous sanction of the concerned Board. In cases where a transfer is made under the 1960 Act without previous sanction of the Board, the transfer would be void. This is for the reason that the requirement of previous sanction is a statutory command conceived with a definite and sublime purpose and the transgression of C which can only result in a void transaction. There is no provision which enables the validating of such a sale. In fact, the stand of respondents 2 and 4 is that, the transfers were void. Therefore, the authorities have also proceeded on the basis that the transaction was void and we can therefore proceed on the said foundation.

62Copy pinpoint62. Proceeding on the basis that the sale executed in 1974 was a void transaction we are inclined to approve of the view taken by Chintamani Sahoo (Deceased by LR.) (supra) and Anisur Rahman (supra), which we have referred to and hold that Article 96 of the Limitation Act, 1963 cannot be invoked in the case of a void transaction. The impugned Order, proceeding on the said premise, cannot be said to E be flawed.

63Copy pinpoint63. We are of the view that there cannot be any embargo against a beneficiary of a waqf claiming acquisition of title by adverse possession. Section 2(k) of the Waqf Act, 1955, reads as under:

F “2(k) “person interested in a waqf means any person who is entitled to receive any pecuniary or other benefits from the waqf and includes- (i) Any person who has a right to offer prayer or to perform any religious rite in a mosque, idgah, imambara, dargah, G khanqah, peerkhana and karbala, maqbara, graveyard or any other religious institution connected with the waqf or to participate in any religious or charitable institution under the waqf; (ii) The waqf and any descendant of the waqf and the mutawalli; H

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OTHERS [K. M. JOSEPH, J.]

64Copy pinpoint64. While he may be a person who can be treated as “interested” A 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. B

65Copy pinpoint65. Can it be said that a beneficiary of a waqf is a fiduciary or that there is a fiduciary relationship and, therefore, he cannot acquire title to the property of the waqf by adverse possession? The term ‘fiduciary’, as such, has not been defined, so is the case with the ‘fiduciary relationship’. In fact, Section 88 of the Indian Trusts Act, 1882, inter alia, provides that a person standing in a fiduciary character and bound to protect the interest of another, cannot by using such character, obtain an advantage and resist making over the benefit to the person, whose interest he was bound to protect. In Central Board of Secondary Education and another v. Aditya Bandopadhyay and others 25, though in the context of Right to Information Act, 2005, the question arose whether an Examining Body holds the evaluated answer books in a fiduciary relationship within the meaning of Section 8(1)(e) of the Right to Information Act, 2005. In the course of the Judgment, this Court, inter alia, held as follows: “38. The terms “fiduciary” and “fiduciary relationship” refer to different capacities and relationship, involving a common duty or obligation. 38.1.Black’s Law Dictionary (7th Edn., p. 640) defines “fiduciary relationship” thus: “Fiduciary relationship.—A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships—such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client—require the highest duty of care. Fiduciary relationships usually arise in one of four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on 25 (2011) 8 SCC 497 H

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A matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognised as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer.” xxx xxx xxx

B 39. The term “fiduciary” refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term “fiduciary relationship” is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party.

E 40. There are also certain relationships where both the parties have to act in a fiduciary capacity treating the other as the beneficiary. Examples of these are: a partner vis-à-vis another partner and an employer vis-à-vis employee. An employee who comes into possession of business or trade secrets or confidential information relating to the employer in the course of his employment, is expected to act as a fiduciary and cannot disclose it to others. Similarly, if on the request of the employer or official superior or the head of a department, an employee furnishes his personal details and information, to be retained in confidence, the employer, the official superior or departmental head is expected to hold such personal information in confidence as a fiduciary, to be made use of or disclosed only if the employee’s conduct or acts are found to be prejudicial to the employer.”

66Copy pinpoint66. A fiduciary can, therefore, be taken to be a person who becomes charged with the duty to protect the interest of another. Fiduciary H relationship is founded upon the reposing of confidence by one in another.

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OTHERS [K. M. JOSEPH, J.]

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. Section 14 of the Indian Trusts Act, reads as follows: “14. Trustee not set up title adverse to beneficiary-The trustee must not for himself or another set up or aid any title to the trust property adverse to the interest of the beneficiary.” C

67Copy pinpoint67. It is not, as if, the beneficiary was in possession of the property in any capacity prior to the sale.

68Copy pinpoint68. In fact, in this case, we may notice that in the second sale, the former Mutawalli, viz., Qasim Ali Khan, entered into the sale deed on D the strength of a compromise and the order of the Deputy Director, Consolidation, under which, he purported to act as one possessed of one-third right in his own right. We bear in mind that no doubt it would have mattered little to the applicability of Article 96 that the transferor purported to transfer waqf property professing it to be his property having regard to what this Court has laid down in Srinivasa (supra). But this is E a case where the voidness arises on account of the fact that what is found to be waqf property has been purported to be alienated contrary to the peremptory statutory mandate. We have also noticed Section 69 of the 1960 Act and its impact.

69Copy pinpoint69. The argument that Section 107 of the Act will assist the appellant in tiding over the bar of limitation does not appeal to us. Section 107 of the Act, no doubt, proclaims that nothing in the Limitation Act,1963 shall apply to any suit for possession of the immovable property comprised in any waqf or for possession of any interest in such property.

70Copy pinpoint70. The Act came into force on 01.01.1996. The first sale was effected on 14.10.1960. The second sale was effected on 26.09.1974. As far as the first sale is concerned, we have already found that Article 96 cannot be pressed into service as the transfer was not purported to be made by the Mutawalli. The doors stood open for the application of Article 65. As far as the second sale is concerned which was effected H

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A in the year 1974 in view of our finding that Article 96 was not applicable, the only other competing Article vying for acceptance, appears to be Article 65. Applying Article 65 and as the adverse possession would kick in from the date of the transfer, on the expiry of twelve years, i.e., in 1986 applying Section 27 of the Limitation Act whatever title remained within the meaning of Section 65 would stand extinguished. The Act B was brought into force only with effect from 01.01.1996. We cannot understand the purport of Section 107 to be that it would revive an extinguished title as nothing stood in the way of running of time from the date of the second sale under the law as it stood.

71Copy pinpoint71. No doubt, the law of limitation is what prevails as on the date of the suit (see C. Beepathumma and others v. Velasari Shankaranarayana Kadambolithaya and others26). Taking 1997 as the date, on which a suit is filed, and applying the Act, which enables the plaintiff to disregard the bar of law of limitation, it cannot mean that what stood extinguished under the earlier law would revive. In this regard, we notice the Judgment of this Court in T. Kaliamurthi (supra): “40. In this background, let us now see whether this section has any retrospective effect. It is well settled that no statute shall be construed to have a retrospective operation until its language is such that would require such conclusion. The exception to this rule is enactments dealing with procedure. This would mean that the law of limitation, being a procedural law, is retrospective in operation in the sense that it will also apply to proceedings pending at the time of the enactment as also to proceedings commenced thereafter, notwithstanding that the cause of action may have arisen before the new provisions came into force. However, it must be noted that there is an important exception to this rule also. Where the right of suit is barred under the law of limitation in force before the new provision came into operation and a vested right has accrued to another, the new provision cannot revive the barred right or take away the accrued vested right.”

72Copy pinpoint72. A contention is taken that the Court is not dealing with a suit and the matter arises from a proceeding under Section 52 of the Act. It is contended that in regard to Section 52 the bar of limitation for a suit is inapplicable. We have noticed that the debate in the High Court essentially

26 H AIR 1965 SC 241

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OTHERS [K. M. JOSEPH, J.]

centered around the question whether Article 96 would apply and applying A 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 B 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.

73Copy pinpoint73. The upshot of the above discussion is that the Appeals are to be found without merit and will stand dismissed. Parties to bear their respective costs. C

Nidhi Jain Appeals dismissed. (Assisted by : Tamana, LCRA)