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Apex court uphold the judgement of high court as correct. Wakf Board entitled for the property as the orginal owner gifted the property to her husband and the Husband created Wakf. Hence the question of the property acquired out of prostitution by the orginal owner who gifted does not arise, as the wakf was created by Donor not by Donee=No property acquired out of the income of prostitution can be created valid Wakf=once the property changed hands, even the stigma, if any, did not attach thereafter to the property and therefore the erroneous assumption of law to the contrary by the Courts below vitiated their findings as to the character of the property and the capacity to make it the subject matter of a Wakf.

CASENO.:

Ganges River, Varanasi, Uttar Pradesh, India.

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Appeal (civil) 1505 of 1988

PETITIONER:
SHRI HAFAZAT HUSSAIN S/O MUBARAK HUSSAIN

Vs.

RESPONDENT:
ABDUL MAJEED S/O SRI WALI MOHD.

DATE OF JUDGMENT: 08/08/2001

BENCH:
S. Rajendra Babu & Doraiswamy Raju
JUDGMENT:
Raju, J.

This appeal has been filed against the judgment dated
29.1.1985 of a learned Single Judge of the Allahabad High Court in
Second Appeal No.591 of 1973 whereunder the suit filed by the
respondents-plaintiffs came to be decreed by reversing the
judgments of the courts below. For a proper appreciation of the
nature of controversy and the grievance expressed before us, it
becomes necessary to state the relevant facts and the conclusions
recorded by the courts below at some length. The suit, out of which
the present proceedings emanate, had been filed for a declaration
that the property in dispute, which is the western portion of House
No.D 50/222 (old No. D12/58), Mohalla Qazipura Kalan, Varanasi, is
the subject-matter of Wakf and for recovery of possession of the
same from the defendant. The case of the plaintiffs was that two
houses Nos.D 50/39 and D 50/222, Mohalla Qazipura Kalan,
Varanasi, belonged to Smt. Zohra Bibi, who was in her early years
leading a life of a Prostitute. Subsequently, she got married to Haji
Mohammed Siddiq. Thereafter, Zohra Bibi executed a deed of gift
dated 10.4.1923 in favour of her husband and he, in turn, on
15.4.1923 executed a Wakf Deed comprising the above mentioned
properties, according to which the original owner Smt. Zohra Bibi was
to be the first Mutwalli and on her death her husband Hazi
Mohammed Siddiq was to be the next Mutwalli. The income from the
property was to be spent for charitable purposes and one of which
was that Rs.5/- per month from the income was to be given to the
Mosque Rangileshah for the expenses of the same. Smt. Zohra Bibi
died in the year 1948. The evidence on record established that the
registry in respect of the house, originally recorded in the name of
Smt. Zohra Bibi Tawayaf, was cancelled and got recorded in the
name of Smt. Zohra Bibi, wife of Hazi Mohammed Siddiq as Trustee
in the year 1923 and thereafter it was mutated again in 1949 in the
name of Allah – owner and Hazi Mohammed Siddiq Mutwalli, in
cancellation of entry made in 1923, apparently after the death of Smt.
Zohra Bibi in 1948. After the death of Zohra Bibi, her husband
appears to have apparently become avaricious and started adopting
ways and means to appropriate the same for himself. As part of such
endeavours, he first seems to have moved an application before the
District Judge, Varanasi, for permission to sell House No. D 50/39 in
Miscl. Case No.139 of 1949 and sold the same after obtaining
permission. Thereafter, he got a suit filed in Suit No.46/53 by the
original defendant in the present suit by name Mubarak Hussain.
Hazi Mohammed Siddiq did not put up any defence and, therefore, it
appears to have been decreed on 12.9.1953. A pretended effort to
get the decree set aside was made, but was not successful. As per
the final decree passed in the said suit, the defendant in the present
suit came into possession of western portion of house bearing No.D
50/222. On 2.1.1957, Hazi Mohammed Siddiq died and before his
death he appears to have appointed the plaintiffs as Mutwallis of
Waqf Mosque Rangileshah and also of the Wakf created by him. The
plaintiffs also claimed that they were appointed Mutwallis by Sunni
Central Board of Waqf. The partition suit filed by Mubarak Hussain,
the defendant in the present suit as well as the other proceedings
instituted by the Hazi Mohammed Siddiq were said to be collusive
and manipulated and consequently could not affect the claim of the
plaintiffs in the present suit.

The defendant in the present suit, who was said to be the
brother of late Smt. Zohra Bibi, contended that the properties in
question were purchased from out of the income earned by Smt.
Zohra Bibi as a prostitute and, therefore, the same could not be the
subject-matter of a Wakf under the Muhammadan Law; that the gift
deed by Zohra Bibi and subsequent wakf deed by her husband are
manipulated documents brought into existence by her husband and
that Hazi Mohammed Siddiq never came into the possession of the
properties as donee. It was further claimed that after the death of
Zohra Bibi, the defendant, as brother, was entitled to one half and her
husband came to inherit the other half of the property and it is only in
such context and consequences, in the partition suit filed by the
defendant in Original No.46/53, that there was a compromise decree
and in terms of the preliminary and final decree passed therein the
defendant was legally put in possession of his share. The status of
the plaintiffs as Mutwallis was disputed and put in issue and it was
contended for the defendant that not only they have no locus standi
to file the present suit but in any event the previous judgment and
decree of the competent court is binding on the plaintiffs and the
present suit was also barred by res judicata.

On the above claims and counter claims, the suit was tried by
the learned Civil Judge, Varanasi, in which about 13 issues came to
be framed. While dealing with the respective claims and disposing of
the suit, the learned Trial Judge initially sought to decide the other
issues on the supposition that the property held by Smt. Zohra Bibi
was not a tainted one, relegating the question of tainted nature or
otherwise of the said property for consideration separately at the end.
On such consideration, the learned Trial Judge upheld the claim of
the plaintiffs to be the Mutwallis not only on the basis of a joint
application said to have been given by the plaintiffs and Hazi
Mohammed Siddiq before his death on 26.2.1956 informing the Tax
Superintendent, Municipal Board, Varanasi, that the plaintiffs are the
Mutwallis, but also on the basis of the order dated 26.7.1957 said to
have been passed by the Sunni Central Board of Waqf, appointing
the plaintiffs as Mutwallis. The right to sue, therefore, was held to
enure to the plaintiffs. On the question of validity of the gift executed
by Smt. Zohra Bibi and the wakf deed executed by her husband, the
learned Trial Judge held that not only the deeds were valid and a
valid wakf had been created but the same had been acted upon. As
for certain proceedings instituted by Mohammed Siddiq before the
Court as also the partition suit and decree said to have been passed
in the partition suit instituted by the defendant in the present
proceedings, they were held also collusive and they did not have any
legal force or effect in law. As a sequel to the above finding of facts
specifically recorded on the basis of the oral and documentary
evidence produced before the Trial Judge, it was also held that the
decree in the partition suit being collusive in nature and void could not
be held to be binding on the present plaintiffs and the present suit
cannot said to be hit by the principles of res judicata engrafted under
Section 11, CPC. Despite these findings of facts, surprisingly, the
learned Trial Judge went on to rely upon the self-serving claims made
by the Mubarak Hussain defendant in the present suit, that the suit
properties were acquired out of income earned by Smt. Zohra Bibi as
a prostitute and, therefore, as per Mohammadan Law, no valid wakf
can be said to have come into existence. Reference has also been
made to the non-inclusion of the wakf in question in the list of wakfs
published under the Wakf Act, 1936 and the learned Trial Judge
further held that since within the time stipulated in Sections 4 and 5 of
the Muslim Wakf Act, no action has been taken by the plaintiffs to get
the wakf included in the said list of wakfs, the plaintiffs cannot be
granted any relief and, therefore, the suit was dismissed by a
judgment and decree dated 10.5.1960.

Aggrieved, the plaintiffs pursued the matter on appeal before
the District Court in Civil Appeal No.319 of 1960 and the First
Additional District Judge, Varanasi, by his judgment and decree dated
21.10.1972 dismissed the appeal. The First Appellate Judge, after
noticing the facts considered by the learned Trial Judge, has chosen
to record that before considering any other issue in the suit as has
been done by the learned Trial Judge, the first point for determination
in the appeal should be as to whether Smt. Zohra Bibi acquired the
properties in question from out of her earnings as a prostitute and
whether a wakf could be validly created in respect of the same and
also as to whether she had performed any Tauba and, if so, its effect
in the Muslim Law. As a matter of fact, on finding that the learned
Trial Judge had not specifically gone into this aspect, two additional
issues were framed by the First Appellate Judge on the question as
to whether the disputed house was acquired out of the earnings of
Zohra Bibi as a prostitute and whether a valid Wakf could have been
created in respect of such property. He has permitted additional
evidence to be let in at that stage and on the basis of materials
noticed by him came to the conclusion that there had been no proper
proof of the claim that Zohra Bibi performed any Tauba at the time of
her marriage, which took place prior to the gift deed and to the
wakfnama and in the absence of the same, the gift deed as well as
deed of wakf had to fail as merely devices to get over the prescription
in Muslim Law. As a consequence thereof, the learned First
Appellate Judge came to the conclusion that Zohra Bibi alone must
be deemed to be the owner of the disputed house until her death and
that thereafter it devolved upon her heirs including Hazi Mohammed
Ziddiq, her husband, and Mubarak Hussain, said to be her brother.
On that view of the matter, the decree passed in the partition suit vide
46/53 was held to be not illegal or ineffective. Further it was held that
though the plaintiffs may be Mutwallis of the Mosque Rangileshah,
they cannot claim any interest in the disputed property, since there
had been no valid Wakf created in law. The learned First Appellate
Judge also rejected the claim based on the Wakf on account of the
non-inclusion of the said Wakf in the list of Wakfs published. The
claim about the availability of other sources of income from the house
property was rejected by stating that there was no material
whatsoever on record to show the extent of monthly income from the
other property. In order to come to the conclusion that the property in
question was purchased by Zohra Bibi only from out of her earning as
a prostitute, the learned First Appellate Judge took into consideration
the interested version of the defendant projected in the earlier
partition suit as well as that of her husband for selfish reasons to
usurp the very property, which was dedicated by himself to the Wakf,
carried away by the mere fact that she had been living as a prostitute
prior to her marriage. Consequently, the appeal came to be
dismissed by the First Appellate Judge.

Aggrieved, the matter has been further pursued before the High
Court. The learned Single Judge in the Second Appeal, for the first
time, in our opinion, has attempted to properly marshal and analyse
facts in their proper perspective without surmises or allowing
assumptions or imagination to take the place of an objective process
of judicious consideration and by his judgment and decree dated
29.1.1985 held that the property in dispute is a Wakf property and
that the plaintiffs are entitled to a declaration therefor and also for
recovery of possession of the same and with consequential mesne
profit, as claimed.

The learned Single Judge has set out in detail the manoeuvres
of the husband Mohammed Siddiq and Mubarak Hussain, the brother
of late Zohra Bibi, after her death, as to how from 1949 itself these
two persons were operating in different directions, though with the
common purpose and aim of appropriating the property for
themselves. It is seen from the details thereof that when the claim of
the husband to sell came to be rejected by an order dated 30.5.55
(Ex.-7) of the District Judge, and that to set aside the ex-parte decree
in the partition suit filed by Mubarak Hussain, the husband filed an
application, both seem to have been drawn nearer, resulting in an
agreement dated 28.4.56 (Ex.G) entered into between them to share
the property equally with self serving and fictitious recitals, opposed
to facts noticed even by the Trail Court on the basis of evidence on
record. This resulted in the passing of a final decree dated 28.4.56
(Ex.D), after getting the application to set aside the ex-parte decree
dismissed. The learned Judge also felt that apart from strong
misconception on vital aspect of the law, the findings of courts below
were the result of biased approach and therefore called for his
interference. After adverting to the relevant passages from the
various sources governing the law on the subject, it was held by the
learned Judge in the High Court that once the property changed
hands, even the stigma, if any, did not attach thereafter to the
property and therefore the erroneous assumption of law to the
contrary by the Courts below vitiated their findings as to the character
of the property and the capacity to make it the subject matter of a
Wakf. The learned Judge also took pains to demonstrate how the
courts below, particularly the lower appellate court misdirected itself
in the matter of legal principles governing a valid and completed gift.
The burden was also found to have been wrongly cast upon the
plaintiffs as to the proof of the manner and nature of acquisition of the
property in dispute. Concrete materials on record to show the
resourcefulness of Zohra Bibi to raise funds and generate other
income has been pointed out to demonstrate how the courts below
readily surmised, even in the absence of any positive proof by the
defendant by any legally acceptable evidence, that the property was
purchased from tainted earnings. Reference has also been made to
the overwhelming evidence on record as to how the Gift Deed and
deed of Wakf have been acted upon throughout and the necessary
ingredients required in law to be established, which stood fully
answered. The conclusion arrived at by the courts below on the
basis of Section 4 & 5 of the Muslim Wakf Act 1936 and the non-
inclusion of the Wakf in the list of Wakfs published was found to be
once again based on conjectures, ignoring the evidence available on
record to show that the total monthly rent from the property was
Rs.408 (vide Ex.12) and as to how having regard to the portion of the
income earmarked for the Wakf purposes and the use of Wakif and
their descendants, the Act itself was not applicable.

The learned counsel for the appellant strenuously contended
that the learned Single Judge, who dealt with the Second Appeal, has
gone out of the permissible limits within which alone concurrent
findings of fact could be interfered with at the Second Appellate
stage. The learned counsel invited our attention to the relevant
portions of the judgment to substantiate his grievance in this regard.
Per contra, the learned counsel for the contesting respondents, with
equal vehemence, attempted to justify the reasoning of the learned
Judge in the High Court by also pointing out how and in what manner
the First Appellate and the Trial Judge committed errors of law to
warrant interference at the Second Appellate stage.

We have carefully considered the submissions of the learned
counsel appearing on either side. No doubt, it has been repeatedly
pointed out by this Court that concurrent findings recorded by the
Trial Judge as well as the First Appellate Judge on proper
appreciation of the materials on record should not be disturbed by the
High Court, while exercising Second Appellate Jurisdiction, but at the
same time, it is not an absolute rule to be applied universally and
invariably since the exceptions to the same also were often indicated
with equal importance by this Court, and instances are innumerable
where despite such need and necessity warranting such interference,
if the Second Appellate Court mechanically declined to interfere, the
matter has been even relegated by this Court to the Second
Appellate Court to properly deal with the claims of parties in the
Second Appeal objectively keeping in view the parameters of
consideration for interference under Section 100 of the Civil
Procedure Code. Therefore, it becomes necessary to see whether
the learned Single Judge in the High Court has transgressed the
permissible limits.

The judgments of the Trial and First Appellate Court could be
said to be concurrent only in the sense that both the courts have
chosen to reject the suit as well as the First Appeal and on the
question as to whether the property in dispute was acquired by Zohra
Bibi from out of her income earned as a prostitute. In other respects,
namely, the factum of creation of the document of gift, Wakf deed, the
conduct of the parties throughout thereafter in acting upon the same
and the collusive and void nature of the proceedings before the Court
instituted by Hazi Mohammed Siddiq and Mubarak Hussain, the
conclusions could not be said to be concurrent. The learned First
Appellate Judge has noticed a flaw in the judgment of the Trial Court
to the extent that there was no specific issue as it ought to have been
as to whether the properties were acquired by Zohra Bibi from her
earning as a prostitute, and framed it as an additional issue. It has
been pointed out supra that the learned Trial Judge despite
castigating the Court proceedings instituted by Hazi Mohammed
Siddiq, the husband of Zohra Bibi, as also the partition suit instituted
by Mubarak Hussain, the defendant in the present proceedings,
against the Hazi Mohammed Siddiq for partition of his half share, to
be collusive and the decree procured thereon to be not only void but
illegal and not binding upon any one or affecting the property, has
chosen to place reliance upon the claims in such make-believe and
collusive proceedings to hold that Zohra Bibi acquired the properties
in question out of her earnings as a prostitute, overlooking the
position that though a prostitute she had other income from properties
as well to purchase the disputed property and the further fact that the
defendant miserably failed to substantiate his claim about the tainted
nature of acquisition of the same. The Second Appellate Judge was
able to indicate and highlight the serious infirmities and illegalities
committed by the learned Trial Judge as well as the First Appellate
Judge, and the necessity for his interference to prevent total
miscarriage of justice, with convincing reasons. The findings
recorded by the Trial Court as well as the First Appellate Court was
shown to be not only vitiated due to perversity of reasoning but also
due to surmises and misreading of the materials on record. On a
careful and critical scanning through of the judgment in the Second
Appeal, we are unable to agree with the learned counsel for the
appellant that any findings of fact concurrently recorded were
mechanically interfered without justification or by transgressing the
limitations on the exercise of jurisdiction under Section 100, CPC.
The reasons assigned by the learned Judge in the High Court for the
conclusions arrived at do not suffer from any infirmity warranting our
interference in this appeal. The appeal, therefore, fails and shall
stand dismissed. The parties shall bear their own costs.
J.
[ S. Rajendra Babu ]
J.
[ Doraiswamy Raju ]

August 8, 2001.

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