SYED SIMTEY HASAN Vs. JOINT DIRECTOR, CONSOLIDATION, U.P. CAMP AT BAREILLY AND OTHERS

JUDGEMENT

(1.) THIS writ petition is directed against the orders passed between 8 -2 -1962 and 5 -1 -1963 by all the authorities concurringly from the Consolidation Officer to the Joint Director under the UP Consolidation of Holdings Act. The Consolidation authorities rejected the claim of the Petitioner to a co -tenure holder's rights as only the names of the opposite parties 5 to 10, who are the descendants of Farzand Hasan, the deceased brother of the Petitioner, were entered in the revenue records on a large number of plots which are in dispute.

(2.) THE rights claimed on behalf of the Petitioner as well as the opposite parties 5 to 10 were sought to be derived from "khudkasht" rights which arose from proprietary rights before the abolition of Zamindari in UP. All the claim -ants accepted the position that all the land, in which their rights arose, was dedicated under a wakf deed executed on 8 -2 -1918 by Sibte Hasan a certified copy of which has been annexed to the petition. I find that the wakf deed, which was before the consolidation authorities, declared that Sibte Hasan was conferring the rights of beneficiaries and imposing the obligations of Mutawallis upon each of the male descendants who were given the right to benefit. He gave the benefits generation after generation to his male descendants and imposed certain duties upon them to meet expenses of the marriages of the females and other charitable objects. Thus, it is clear that the male descendants of Sibte Hasan had common interests as beneficiaries and common obligations as co -mutawallis. The wakf deed shows that the beneficiaries and Mutawallis who obtained rights generation after generation excluded their descendants during their own lives. In other words, the male beneficiaries of each generation came in when there was no male ancestor alive between them and Sibte Hasan and took the share of their deceased father equally. Sibte Hasan died sometime in 1924 and was succeeded by his two sons, Simte Hasan, the Petitioner, and Farzand Hasan, the father of opposite parties 5 to 7, as beneficiaries and co -mutawallis under this waqf. At the time when the UP ZA and LR Act came into force Farzand Hasan was alive and was a co -mutawalli and co -beneficiary with the Petitioner. There could be no doubt that whatever rights were acquired before the UP ZA and LR Act vested in the two co -beneficiaries and co -mutawallis according to their shares under the waqf even if the effect of the UP ZA and LR Act was to terminate, the waqf. The real question was: what is the effect of UP ZA and LR Act upon these rights?

(3.) IT must, however be borne in mind that a wakf, being a permanent dedication or tying up of property, cannot subsist where that property is made transferable. The effect of Section 152 of the UP ZA and LR Act was to make bhumidhari rights transferable rights. Therefore, all those rights of the mutawallis or beneficiaries of the waqf which became converted into bhumidhari rights Under Section 18 of the UP ZA and LR Act necessarily became free from the restrictions to which waqf property is subject. It has been contended by Mr. Iqbal Ahmad, on behalf of the Respondents, that whatever rights the beneficiaries and Mutawallis had, were converted into rights to obtain compensation. This may be the position with regard to a part of proprietary rights in land. It may be that the compensation itself became charged with some liability to carry out the terms of the waqf. But, that is not a matter before me for decision. The khudkasht rights which the Mutawallis and the beneficiaries enjoyed under the waqf were converted by statute into rights Under Section 18 of the UP ZA and LR Act. And, those rights went to the whole body of mutawallis and beneficiaries and not to individual mutawallis even though the waqf had ceased with regard to land.