1953 (4) TMI 33 - HC - Indian Laws

Summary

Issues Involved:
1. Whether village Singha Parasi and other properties were waqf properties.
2. Whether the properties came within the purview of the Muslim Waqfs Act.
3. Whether the suit was barred by limitation.
4. Whether the suit was maintainable without a notice under Section 53 of the Muslim Waqfs Act.
5. Whether the plaintiffs could claim the return of Rs. 5,177.
6. Whether the plaintiffs could seek perpetual injunction against the Sunni Central Board of Waqfs.

Detailed Analysis:

1. Whether village Singha Parasi and other properties were waqf properties:
The lower courts found that village Singha Parasi was not the subject of waqf and that it was only the usufruct of the property which was sought to be endowed to the shrine, which did not constitute a valid waqf. However, the High Court disagreed, noting that the property was waqf property dedicated to the shrine. The court referenced the judgment of the Settlement Officer and the Judicial Commissioners, which concluded that the property was dedicated to God Almighty and was waqf property. The court also noted that the institution of a suit under Section 92, Civil P.C., in 1902, confirmed the public and permanent nature of the trust.

2. Whether the properties came within the purview of the Muslim Waqfs Act:
The plaintiffs argued that the waqf was excluded from the purview of the Muslim Waqfs Act under Section 2 (2) (ii) (a) and (c). The court found that the properties were dedicated for the benefit of the shrine and not for any private individual, thus not falling under the exclusions. The court also held that the term "private" in Section 2 (2) (ii) (c) qualified both "tombs" and "graveyards," and since the tomb was not private, the properties were not excluded from the Act.

3. Whether the suit was barred by limitation:
The court found that the suit was barred by limitation. The suit was filed in October 1946, more than a year after the notification of the waqf in February 1944. The court rejected the plaintiffs' reliance on Sections 14 and 15 of the Limitation Act, as the previous suit was not based on the same cause of action, and the plaintiffs were not prevented from filing the suit by any injunction or order.

4. Whether the suit was maintainable without a notice under Section 53 of the Muslim Waqfs Act:
The court held that a notice under Section 53 of the Muslim Waqfs Act was necessary before instituting the suit. Since the property was found to be waqf property, the plaintiffs were required to serve the statutory notice to the Sunni Central Board of Waqfs, which they failed to do. Therefore, the suit was barred in the absence of the prescribed notice.

5. Whether the plaintiffs could claim the return of Rs. 5,177:
The court did not specifically address this issue in detail, but the dismissal of the suit implies that the claim for Rs. 5,177 was also dismissed.

6. Whether the plaintiffs could seek perpetual injunction against the Sunni Central Board of Waqfs:
The court did not find it necessary to express an opinion on this point, as the primary issue of whether the property was waqf property was resolved against the plaintiffs. The dismissal of the suit also meant that the claim for a perpetual injunction was not granted.

Conclusion:
The appeal was allowed, and the decree of the lower court was set aside. The suit was dismissed with costs in both courts.