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TMI Blog1953 (4) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... tteer of the Bahraich district, as also in the judgment of the Chief Court in an appeal case. 3. Syed Salaar Masood Ghazi was said to be a nephew of Mohammad Ghazi and while on a visit to Bahraich met his death at the hands of a local chieftain. His remains were buried in village Singha Parasi by his devoted followers and a tomb was subsequently constructed, which became, in course of time, an object of pilgrimage and veneration. An annual mela or Urs is held at the shrine and is attended by a large number of persons who make offerings at the shrine. The tomb is maintained out of the income from the offerings and from the receipts of certain properties partly endowed by the charitably disposed emperors of Delhi and partly acquired out of the savings from the income of the property and the offerings at the shrine. 4. A body of persons known as the Khuddam of Dargah has been looking after and performing ceremonies and other services at the shrine generation after generation. They had been receiving income from the properties attached to the shrine as also the charhawa or offerings. The annexation of Oudh in 1856 was followed by a War of Independence, described by the British Rulers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment acted without authority in interfering in the management of the waqf property. As a sequel to this judgment, in the year 1902 a suit was instituted by the Legal Remembrancer to the Government of the United Provinces of Agra and Oudh under Section 539 (now Section 92), Civil P. C. for settling the management of the waqf, and a scheme for the administration of the trust was sanctioned by the District Judge of Gonda. Under the terms of the decree, a committee of management of ten members was appointed and the property was vested in a board of two trustees, one of whom was the president of the committee of management. The Junctions of the committee and the limitation under which they were to work were clearly indicated in the decree passed by the District Judge in the suit instituted by the Legal Remembrancer. It was also clearly mentioned that the property would vest in the two trustees and that cases shall be instituted and defended and investments made in their names. They were prohibited from incurring any expenditure in instituting or defending a case without the sanction of the committee. 8. Rot seems to have set in again in the management, and an application was made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the official Gazette the waqfs relating to the particular sect to which, according to the report of the Commissioners, the provisions of the Muslim Waqfs Act applied. In pursuance of the enquiry required to be done under the Muslim Waqfs Act the Sunni Central Board notified the waqfs in the official Gazette of 26-2-1944, and the waqf which is the subject of dispute in this case was also mentioned in the list of Sunni waqfs. Most of the property appertaining to the waqf was also notified in the relevant column against this waqf. After this notification had been made, the Sunni Central Board asked the committee of management of the waqf to submit the annual budget to the Sunni Central Board for approval and also to get the accounts audited by the auditors of the Board. It also levied the usual contributions to be made by waqfs under Section 54, Muslim Waqfs Act. The management was dissatisfied with these directions and probably felt that any contribution asked for by the Sunni Central Board was unauthorised. The management was further of opinion that the waqf in the dispute in this case could not come within the purview of the Muslim Waqfs Act. The members of the Committee of ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the suit was barred by limitation and whether the suit was maintainable without a notice having been served under Section 53, Muslim Waqfs Act. 12. 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 and that such an endowment of the usufruct only did not constitute a valid waqf. The learned Civil Judge also held that the muafi of village Singha Parasi was held under conditions of resumption and there being no permanent dedication, it could not be said to be a valid waqf under the Mohammedan law. He, however, held that the suit was within time and that the properties which had not been expressly mentioned in the notification of 26-2-1944, could not be subject to the Muslim Waqfs Act inasmuch as they were not notified as such. The learned Civil Judge brushed aside the objection raised by the defendant with regard to Section 53, Muslim Waqfs Act and came to the conclusion that no notice was necessary and that if a notice was at all necessary, it had been served though during the pendency of the suit,; dissatisfied with the decree of the Civil Judge, the Sunni Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Muslim of any property for charity or for religious objects or purposes and for an object of public utility. The definition of a Muslim Waqf, as given by the various authors of commentaries on Muslim law, has been enlarged to some extent in the Muslim Waqfs Act, where a waqf has been defined to mean "the permanent dedication or grant of any property for any purposes recognised by the Musalman law or usage as religious, pious or charitable and, where no deed of waqf is traceable, includes waqf by user." It would thus appear that the definition of 'waqf given in the Muslim Waqfs Act would cover permanent dedications and grants recognised not only by the Musalman law but also by usage as religious, pious or charitable. The plaintiffs, in para. 1 of the plaint, described the Dargah as a place of veneration and devotion by the general public. They also admit that a fair and Urs are held at the shrine and they are and have been attended by a large number of devotees since times immemorial. 15. The learned Counsel for the respondents has argued that dedication for the purposes of a tomb would not constitute a valid waqf and he has referred to Tyabji's Muhammadan Law ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eviously. In the present case the property appertaining to the waqf was also dealt with by the settlement Court in the year 1870. A 'sanad' was originally granted in 1859 to Faqirul-]ah, father of Inayatullah, of the rent free tenure of village Singha Parasi and he was given the right to appropriate the usufruct of the village subject to the conditions of the 'sanad' granted to him. Inayatullah, son of Faqirullah, was however not satisfied with this limited grant and he filed a suit in the Court of the Settlement Officer claiming proprietary rights in the property of Singha Parasi. The judgment and decree of the Settlement Court is an important document and reliance has been placed by both parties on this document as the origin of the rights to the property of the waqf after the confiscation. The word "decree" used at the end of the judgment only indicates the operative part of the judgment and is not to be interpreted in the sense of a separate decree following the judgment). In this claim of Inayatullah, the learned Settlement Officer came to a definite conclusion, that it was clear beyond all doubts that the proprietary right in the endowed property re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would suffice to state that the Judicial Commissioners came to a definite finding that the property was waqf property. In their judgment they also made an observation that as the property was waqf property dedicated to religious or pious purposes, it was not lawful for the Government to interfere in the management or supervision of this property. Acting upon the findings and observations made in this judgment in appeal, of the Court of the Judicial Commissioners, a suit was instituted by the Legal Remembrancer of U. P., Agra and Oudh in 1902. It has been contended by the learned Counsel for the appellant that institution of a suit under Section 92, C. P. C., in itself is a proof of the fact that the property in this case is waqf property and is a permanent dedication. A suit under Section 92 (formerly Section 539), Civil P. C. could main be tained only in respect of a public trust of a permanent character and the judgment in such a suit would be a judgment in Rem and not a judgment in petrsonam. Nobody raised any objection in this suit with regard to the public or permanent nature of the trust of Dargah Syed Salaar Masood Ghazi and after the decision given by the District Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offerings of the shrine were for the benefit of the shrine and not for the benefit: of the Khadims. All other properties pertaining to the waqf were also dedications to the waqf and not to any private individual. The respondents have' not, therefore, been able to establish that the property, moveable or immovable, appertaining to the waqf was for the maintenance and support of any person. All these dedications were for the benefit of the shrine or the Dargah and as such clause (2) (ii) (a) has no application to the facts of the case. D. The other provision of Section 2 relied upon by the respondents is the one which excludes waqfs for the maintenance of private Imambaras, tombs and graveyards. It has been argued on behalf of the respondents that the word "private" ap- pearing before "Imambaras" governs only the word "Imambaras" and is not an adjective of the words "tombs and grave-yards". We are unable to agree with this contention and we are fortified' in our view by a ruling of the Allahabad High Court in -- 'Sunni Central Board of Wakis v. Sardar Khan A. I. R. 1943 All 255 (D). Apart from any ruling also a plain reading of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the suit was not barred by limitation and that the plaintiffs could avail themselves of Section 14 for extending the limitation for institution of a suit in this case. It is not disputed that a suit for a declaration under Section 5, Muslim Waqfs Act, has to be brought within one year of the date of publication of the waqf or trust in the notification. The notification of the waqf in this case was made on 26-2-1944, and a suit for a declaration that a certain property was or was not waqf property could be brought within a year of this date of notification. 18. The present suit was, however, filed in October 1946 more than a year after the expiry of the normal period of limitation prescribed by Section 5 and the plaintiffs sought to take advantage of Sections 14, 15 and 18, Limitation Act, to put the case within limitation. The learned Counsel for the respondents has given up Section 18 and has confined his arguments only to Sections 14 end 15. Limitation Act. Section 14, Limitation Act, runs is follows: "(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has seen prosecuting with some diligence another civil proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es from bringing the present suit till the judgment of the Civil Judge dated 16-10-1941, had been set aside by the Chief Court in 1946. The notices are Exs. 8 to 10 printed in the paper book at pages 89, 90 and 91. After the decree had been passed on 16-10-1941, by the Civil Judge the successful party asked the Court for the issue of notices to the trustees who had been removed to restrain them from interfering in any way in the affairs of the Dargah. This evidently did not mean that the present plaintiffs were debarred from bringing the present suit and the construction sought to be put by the learned Counsel for the respondents does not appear to us to be sound. It could never be the intention of the notices to restrain the defendants from bringing a suit for a declaration that the properties comprised in the waqf were not to be governed by the provisions of the Muslim Waqfs Act. It was, therefore, open. to the plaintiffs to bring a suit within the time prescribed by law and they could not take advantage of the provisions of Section 1 5 for extending the prescribed period of limitation. The suit was, therefore, barred by limitation and Section 1 5 also did not extend the period ..... 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