- (1.) JANARDAN Sahai, J. Original Suit No. 321 of 1993 filed by Shafique Ahmad mutawalli of the waqf against the petitioner was decreed by the trial court on 7. 2. 2004. The appeal against the decree was dismissed by the Additional District Judge, Bulandshahr by judgment and decree dated 2. 3. 2006. The second appeal filed by the petitioner was also dismissed by the High Court on 12. 4. 2006. The decree was put into execution. Objections under Section 47 Civil Procedure Code were filed by the petitioner on the ground that no notice to the Waqf Board as required under Section 66 of the U. P. Muslim Waqf Act, 1960 was issued. It was also alleged that under Section 90 of the Waqf Act, 1995 notice to the Waqf Board was necessary as the suit related to recovery of possession over Waqf property. The objections were dismissed by the trial court. A revision was filed by the petitioner, which has also been dismissed by order of the Additional District Judge, Bulandshahr dated 16. 11. 2006. Both these orders have been challenged in the present writ petition.
(2.) SRI Sheetla Sahai, learned counsel for the petitioner made only one submission ; that the decree in the Original Suit No. 321 of 1993 is a nullity and the execution application was also not maintainable because neither the suit nor the execution application was filed by the Waqf Board but was filed by the waqf through the mutawalli who was not competent to do so. I have heard Sri S. A. Shah, learned counsel for the respondents. In Maulut Raza Ansari and others v. Shyamlal Sah and others, AIR 1983 Pat 299, a Division Bench of the Patna High Court dealing with the question whether proceedings for execution of a decree passed in a suit for possession of Waqf property after (the Waqf Act No. 29 of 1954) came into force in the State of Bihar could be instituted by the Mutawalli of the Waqf, held that the execution case could have been filed only in the name of the Board. The Patna High Court placed reliance upon the provisions of Section 15 (2) of the Act of 1954, which enumerates the powers and functions of the Waqf Board and includes the power to institute and defend suits and proceedings in a Court of law relating to waqf. The duties of the mutawalli are laid down in Section 36 of that Act and none of those duties relates to the institution of suits. The High Court of Delhi has taken a similar view in Mst. Mohammad Jahan Begum v. Abdul Hakim, 1991 (3) CCC 6. The Andhra Pradesh High Court in A. S. Abdul Khader Waqf for Deeni Talim v. Saber Miah and etc. , AIR 2003 AP 528, has however dissented from the Patna High Court. The Andhra Pradesh High Court placed reliance upon the decision of the Kerala High Court in Badagara Jumayath Palli Dharas Committee v. P. Ummerkutty Haji, AIR 2002 Ker 56. The Andhra Pradesh High Court has held that the mutawalli is a person in-charge of the affairs of the waqf and is interested in the maintenance and management of the waqf and its property and can in the interest of the institution maintain a suit for eviction, recovery of mesne profits or damages for use and occupation.
(3.) TO answer the question whether the mutawalli could institute the suit and execute the decree it is necessary to examine the status of the mutawalli under the Personal Law as well as under the provisions of the U. P. Muslim Waqf Act, 1960 and the Waqf Act, 1995. Para 527 of Tyabji's Muslim Law (Fourth Edition) is quoted : "the mutawalli has no ownership right or estate in waqf property ; in that respect he is not a trustee in the technical sense ; he holds the property as a manager for fulfilling the purpose of the waqf. " In Moattar Raza v. Joint Director of Consolidation, U. P. , AIR 1970 All 509, it has been held by a Full Bench of the Allahabad High Court that the legal status and position of a mutawalli is that of a manager or superintendent. The Supreme Court in Bibi Siddique Fatima v. Saiyed Mohammad Mamood Hasan, AIR 1978 SC 1362, held that a mutawalli is a like a manager rather than a trustee. Before examining the statutory provisions it may be noted that the Waqf Act 1954 was never enforced in U. P. The U. P. Muslim Waqf Act, 1960 was applicable in this State. Section 15 (2) of this Act gives a list of the functions to be performed by the Waqf Board, which includes the right of instituting and defending suits. The position in the Waqf Act, 1995 is the same vide Section 32 (2) of the Act. The question is whether this power given to the Waqf Board is in addition to the right of the mutawalli to institute a suit for eviction of a tenant or in derogation thereof. The Waqf Act, 1995 defines a mutawalli in Section 3 (i) as follows : "3 (i) "mutawalli' means any person appointed, either verbally or under any deed or instrument by which a waqf has been created, or by a competent authority, to be the 'mutawalli of a waqf and includes any person who is a mutatoaflt of a waqf by virtue of any custom or who is a naib-mutawalli, khadim, mujawar, sajadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any waqf or waqf property : Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office bearer of such committee or corporation. ";