LEGAL ISSUE: Whether title to Waqf property can be acquired through adverse possession. CASE TYPE: Waqf Law, Property Law, Limitation Law. Case Name: Sabir Ali Khan vs. Syed Mohd. Ahmad Ali Khan. [Judgment Date]: 13 April 2023

Introduction

Date of the Judgment: 13 April 2023
Citation: 2023 INSC 368
Judges: K.M. Joseph, J. and Hrishikesh Roy, J.

Can a beneficiary of a Waqf (a religious endowment) acquire ownership of the Waqf property through adverse possession? The Supreme Court of India recently addressed this intricate legal question, which involves a clash between property rights and the special status of Waqf properties. The Court examined the validity of property transfers and the applicability of limitation laws in the context of Waqf properties, ultimately ruling on whether the respondents had successfully claimed ownership through long-term possession.

Case Background

The case revolves around a family dispute concerning a Waqf-alal-aulad (a family Waqf) created by Syed Mohd Akbar Ali Khan in 1934. The Waqf deed appointed him as the first Mutawalli (manager). In 1948, Akbar Ali Khan sold a portion of the Waqf property, which led to a legal challenge by his son, Qasim Ali Khan. The court upheld the validity of the Waqf in 1962. After Akbar Ali Khan’s death in 1958, Qasim Ali Khan became the Mutawalli.

However, Qasim’s brothers, Kazim Ali Khan and Raza Ali Khan, got their names recorded as Bhumidhar (landholders) in revenue records. This led to another suit by Qasim Ali Khan in 1959, seeking a declaration that the property was Waqf property. During this suit, in 1960, Kazim Ali Khan transferred his share to his nephew, Mohd. Ahmad Ali Khan (the first sale). The suit was eventually decreed in favor of Qasim Ali Khan in 1962.

During consolidation proceedings, Qasim Ali Khan objected to his brothers’ names being recorded, and the Consolidation Officer ordered the Waqf’s name to be entered. Appeals and revisions by Qasim’s brothers were dismissed. However, in 1974, a compromise was reached between the brothers, declaring the Waqf a paper transaction. Based on this compromise, Qasim Ali Khan sold his share to his nephew, Syed Mohammad Ali Khan (the second sale) in 1974.

Later, Sajjad Ali Khan, another son of Qasim Ali Khan, filed a complaint challenging these transfers. The Controller of the Waqf Board directed the Collector to recover possession of the land from the unauthorized occupants. This order was challenged, leading to the present appeals before the Supreme Court.

Timeline

Date Event
26.07.1934 Mohd. Akbar Ali Khan creates a waqf-alal-aulad, appointing himself as the first Mutawalli.
1948 Akbar Ali Khan executes a sale deed for a portion of the waqf property.
1950 Qasim Ali Khan files OS No. 1 of 1950, challenging the 1948 sale deed.
16.12.1958 Akbar Ali Khan passes away, Qasim Ali Khan takes over as Mutawalli.
1959 Qasim Ali Khan files OS No. 421 of 1959, seeking declaration of waqf property.
14.10.1960 Mohd. Kazim Ali Khan transfers his alleged share to Mohd. Ahmad Ali Khan (first sale).
21.05.1962 OS No. 421 of 1959 is decreed in favor of Qasim Ali Khan.
11.07.1962 High Court affirms the decree in OS No. 1 of 1950, validating the waqf.
29.01.1969 Revision filed by Kasim Ali Khan and Raza Ali Khan dismissed by Deputy Director.
02.03.1972 First Restoration Application filed by Kasim Ali Khan and Raza Ali Khan is dismissed.
13.02.1974 Compromise entered into between the three brothers, declaring the waqf a paper transaction.
26.09.1974 Qasim Ali Khan executes a sale deed in favor of Syed Mohammad Ali Khan (second sale).
01.05.1988 Qasim Ali Khan resigns as Mutawalli.
16.07.1997 Controller of the Waqf Board orders the Collector to recover possession of the disputed land.
31.12.1997 Collector orders the respondents to deliver possession of the property to the Board.
28.03.2003 Waqf Tribunal allows the Appeals and sets aside the order of the Collector.
13.04.2023 Supreme Court dismisses the appeals, upholding the High Court’s decision.

Legal Framework

The case primarily involves the interpretation and application of the Waqf Act, 1995, and the Uttar Pradesh Muslim Waqf Act, 1960. Key sections include:

  • Section 52(1) of the Waqf Act, 1995: This section allows the Waqf Board to requisition the Collector to recover possession of Waqf property that has been illegally alienated. It states,
    “Where the Board is satisfied, after making any inquiry in such manner as may be prescribed, that any immovable property of a waqf, entered as such in the register of waqfs maintained under section 36, has been transferred without the previous sanction of the Board in contravention of the provisions of this Act or the rules made thereunder, it may send a requisition to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it.”
  • Section 49A of the Uttar Pradesh Muslim Waqf Act, 1960: This provision mandates that no transfer of immovable Waqf property is valid without the prior sanction of the Board. It reads,
    “Notwithstanding anything contained in the deed or instrument, if any, by which the waqf has been created, no transfer by way of – (i) sale, gift, mortgage or exchange; or (ii) lease for a period exceeding three years in the case of agricultural land, or for a period exceeding one year in the case of non-agricultural and or building of any immovable property of the waqf shall be valid without the previous sanction of the Board.”
  • Section 69 of the Uttar Pradesh Muslim Waqf Act, 1960: This section bars the compromise of suits relating to Waqf property without the sanction of the Board. It states,
    “No suit or proceeding pending in any court by or against the mutawalli of a wakf relating to title to wakf property or the rights of the mutawallis shall be compromised without the sanction of the Board.”
  • Section 51(1) of the Waqf Act, 1995: This section declares that any sale of Waqf property without the prior sanction of the Board is void. It reads,
    “Notwithstanding anything contained in the wakf deed, any gift, sale, exchange or mortgage of any immovable property which is waqf property, shall be void, unless such gift, sale, exchange or mortgage is effected with the prior sanction of the Board.”
  • Section 107 of the Waqf Act, 1995: This section states that the Limitation Act, 1963, does not apply to suits for possession of immovable Waqf property. It reads,
    “Nothing in the Limitation Act, 1963 (36 of 1963) shall apply to any suit for possession of immovable property comprised in any waqf or for the possession of any interest in such property.”

These provisions are crucial in determining the validity of the property transfers and the applicability of the Limitation Act in the context of Waqf properties.

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Arguments

Appellant’s Arguments:

  • The appellant argued that Article 96 of the Limitation Act, 1963, should apply, which provides a 12-year limitation period starting from the date of the Mutawalli’s resignation or appointment. Since the current Mutawalli was appointed in 1996, the action was within the limitation period.
  • The appellant contended that Article 65 of the Limitation Act, 1963, does not apply, as the respondents’ claim was based on a compromise, not a valid sale.
  • The High Court erred in holding that the Waqf’s right was extinguished under Section 27 of the Limitation Act, 1963. The appellant argued that adverse possession should be calculated from the date of the Mutawalli’s death or resignation, not the date of the sale deed.
  • The appellant asserted that beneficiaries of a Waqf cannot acquire title by adverse possession.
  • The appellant relied on Chhedi Lal Misra (Dead) Through Lrs. v. Civil Judge, Lucknow and others [ (2007) 4 SCC 632 ], K.S. Viswam Iyer (Dead) Through Lrs. v. State Wakf Board, Madras [ 1994 Suppl. (2) SCC 109 ], and Wali Mohammed (Dead) by Lrs. v. Rahmat Bee (Smt) and others [ AIR 1999 SC 1136 ] to support their claims.

Respondent’s Arguments:

  • The respondent argued that no valid Waqf was created, as the Waqif never acted upon it or divested himself of the property.
  • The respondent contended that the Waqf was not registered under the relevant Acts and, therefore, the summary procedure under the Waqf Act was not applicable.
  • The respondents asserted that they had been in continuous and uninterrupted possession of the property, thus perfecting their title through adverse possession.
  • The respondent argued that the appointment of a new Mutawalli does not create a fresh starting point for limitation.
  • The respondents relied on M. Siddiq (Dead)Through Legal Representatives (Ram Janmabhumi Temple Case) v. Mahant Suresh Das and others [ (2020) 1 SCC 1 ] and Karnataka Board of Wakf v. Govt. of India and others [ (2004) 10 SCC 779 ] to support their claims that a beneficiary can claim adverse possession.

Respondent Nos. 2 and 4’s Arguments:

  • The compromise between the three sons of Akbar Ali Khan was invalid without the Board’s approval, as required by Section 69 of the Uttar Pradesh Muslim Waqf Act, 1960.
  • The Controller of the Waqf Board found that the disputed property was Waqf property, registered as such, and illegally sold without the Board’s sanction.
  • The two sales were void ab initio under Sections 51(1) and 51(A) of the Waqf Act, 1995.
  • Article 65 of the Limitation Act, 1963, does not apply to the proceedings of the Act due to Section 107, and it does not apply to proceedings.
  • The respondents could not perfect their title by adverse possession against the State, for which the period is 30 years.
  • They relied on Thakur Mohd. Ismail v. Thakur Sabir Ali [ AIR 1962 SC 1722 ] and Ahmed G.H. Ariff and others v. Commissioner of Wealth Tax, Calcutta [ AIR 1971 SC 1691 ] to support their claims.
Main Submission Sub-Submissions (Appellant) Sub-Submissions (Respondent No. 1) Sub-Submissions (Respondent Nos. 2 & 4)
Applicability of Limitation Act
  • Article 96 applies, starting from the appointment of the Mutawalli.
  • Article 65 does not apply as the claim is based on a compromise.
  • Section 27 does not extinguish Waqf rights.
  • No valid Waqf was created.
  • The Limitation Act applies, and adverse possession has been perfected.
  • Appointment of Mutawalli does not create a fresh start of limitation.
  • Article 65 does not apply to proceedings under the Waqf Act.
  • Section 27 does not apply to Waqf property vested in God.
Validity of Transfers
  • Transfers are illegal and void.
  • Transfers are valid due to continuous possession.
  • Transfers are void ab initio under the Waqf Act.
  • Compromise is invalid without Board sanction.
Adverse Possession
  • Beneficiaries cannot acquire title by adverse possession.
  • Beneficiaries can acquire title by adverse possession.
  • Title cannot be perfected by adverse possession against the State.
Registration of Waqf
  • Waqf was validly registered.
  • Waqf was not validly registered.
  • Waqf was registered and valid.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

  1. Whether there was a valid Shia Waqf and whether it was registered?
  2. Whether the compromise dated 13.02.1974 and the Order dated 12.09.1974 are valid or are they void?
  3. Whether the two sales, one on 14.10.1960 and the second on 26.09.1974, in favor of the first respondent in the two Appeals before us, are void?
  4. Whether the action is barred by limitation?
  5. Whether the High Court was correct in finding that the action was barred as it is not Article 96 of the Limitation Act, which applied but Article 65? What is the interplay between the said Articles in the facts?
  6. What is the impact of Section 27 of the Limitation Act, 1963 in the facts?
  7. Whether Section 107 of the Act removes the bar of limitation at any rate?

Treatment of the Issue by the Court

Issue Court’s Decision Brief Reasons
Validity and Registration of Waqf Valid Waqf, Compulsorily Registerable The High Court in the first round of litigation and Consolidation Authorities found a valid Waqf; registration was compulsory under Section 38(1) of the 1936 Act.
Validity of Compromise and Order Void The compromise was in violation of Section 69 of the Uttar Pradesh Muslim Waqf Act, 1960, which requires Board sanction.
Validity of Sales Void The sales were made without prior sanction of the Waqf Board, violating Section 49A of the Uttar Pradesh Muslim Waqf Act, 1960 and Section 51(1) of the Waqf Act, 1995.
Limitation Action is barred Article 96 of the Limitation Act, 1963, does not apply to void transactions, and Article 65 applies, leading to the extinguishment of rights after 12 years.
Applicability of Articles 65 and 96 Article 65 applies, not Article 96 Article 96 applies to transfers by a manager for valuable consideration, while Article 65 applies to adverse possession based on title.
Impact of Section 27 Extinguishes rights Section 27 of the Limitation Act, 1963, extinguishes the right to property after 12 years of adverse possession.
Impact of Section 107 Does not remove bar of limitation Section 107 of the Waqf Act, 1995, does not revive extinguished titles under prior laws.
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Authorities

The Supreme Court considered various legal authorities, categorized by the legal point they addressed:

Authority Court Legal Point How Considered
Abdul Fatah Mohammad Ishak v. Russomoy Dhur Chowdhry Privy Council Validity of Waqf-alal-aulad Discussed the historical context of Waqf-alal-aulad and the need for a real charitable purpose.
The Mosque Known as Masjid Shahid Ganj, and others v. Shiromani Gurdwaba Prabandhak Committee, Amritsar, and another [AIR 1940 PC 116] Privy Council Adverse Possession over Waqf Property Established that Waqf property can be subject to adverse possession.
Faqir Mohd. Shah v. Qazi Fasihuddin Ansari and others [AIR 1956 SC 713] Supreme Court of India Mutawalli and Adverse Possession Held that a Mutawalli cannot acquire title by adverse possession over Waqf property.
Moattar Raza and others v. Joint Director of Consolidation, U.P. Camp at Bareilly and others [AIR 1970 Allahabad 509] High Court of Judicature at Allahabad Vesting of Waqf Property Supported the view that Waqf property vests in God Almighty or the Waqf itself.
Khilli Ram v. State of Rajasthan [(1985) 1 SCC 28] Supreme Court of India Entry in Waqf Register Held that an entry in the Waqf Register is not open to question in an appeal against the Collector’s order.
(Smt.) Amina Khatoon v. Third Addl. D.J. Farukhabad and others [1987 All LJ 1282] High Court of Judicature at Allahabad Powers of Waqf Tribunal Affirmed that the Waqf Tribunal has wide powers and can examine the validity of the Requisition Order.
Chhedi Lal Misra (Dead) Through Lrs. v. Civil Judge, Lucknow and others [(2007) 4 SCC 632] Supreme Court of India Limitation in Waqf Cases Cited by the appellant to argue for the applicability of Article 96.
K.S. Viswam Iyer (Dead) Through Lrs. v. State Wakf Board, Madras [1994 Suppl. (2) SCC 109] Supreme Court of India Limitation in Waqf Cases Cited by the appellant to argue for the applicability of Article 96.
Wali Mohammed (Dead) by Lrs. v. Rahmat Bee (Smt) and others [AIR 1999 SC 1136] Supreme Court of India Limitation in Waqf Cases Cited by the appellant to argue for the applicability of Article 96.
Fazlul Rabbi Pradhan v. State of West Bengal and others [1965 3 SCR 307 / AIR 1965 SC 1722] Supreme Court of India Definition of Waqf Discussed the meaning of “charitable purpose” in the context of Waqfs.
Dr. M. Ismail Faruqui and others v. Union of India [(1994) 6 SCC 360] Supreme Court of India Application of Limitation Act Cited by the respondent to argue that the Limitation Act applied to Waqf properties.
T. Kaliamurthi and another v. Five Gori Thaikkal Wakf and others [(2008) 9 SCC 306] Supreme Court of India Distinction between Articles 134B and 96 Explained the differences between Article 134B of the 1908 Act and Article 96 of the 1963 Act.
Syed Yousuf Yar Khan and others v. Syed Mohammed Yar Khan and others [(1967) 2 SCR 318] Supreme Court of India Starting point of Limitation Cited by the respondent to counter the argument that the appointment of a Mutawalli leads to a fresh start of limitation.
M. Siddiq (Dead)Through Legal Representatives (Ram Janmabhumi Temple Case) v. Mahant Suresh Das and others [(2020) 1 SCC 1] Supreme Court of India Adverse Possession Cited by the respondent to support the plea of adverse possession.
Karnataka Board of Wakf v. Govt. of India and others [(2004) 10 SCC 779] Supreme Court of India Adverse Possession Cited by the respondent to support the plea of adverse possession.
Thakur Mohd. Ismail v. Thakur Sabir Ali [AIR 1962 SC 1722] Supreme Court of India Transfer of Waqf Property Cited by the respondent to argue that the property stood transferred to the Almighty.
Ahmed G.H. Ariff and others v. Commissioner of Wealth Tax, Calcutta [AIR 1971 SC 1691] Supreme Court of India Transfer of Waqf Property Cited by the respondent to argue that a beneficiary/Mutawalli had no right to transfer Waqf property.
Chintamani Sahoo (deceased by LR.) and others v. Commissioner of Orissa Hindu Religious Endowments, Orissa and others [AIR 1983 Orissa 205] High Court of Orissa Void vs. Voidable Transfers Reasoning adopted to distinguish between void and voidable transfers.
Srinivasa Reddiar v. N. Ramaswamy Reddiar [AIR 1966 SC 859] Supreme Court of India Applicability of Article 134B Distinguished on the basis that it did not consider the question of void or voidable transactions.
Chinna Jeeyangar Mutt, Tirupath v. C.V. Purushotham and others [AIR 1974 AP 175] High Court of Andhra Pradesh Interpretation of Article 134B Discussed the history and purpose of Article 134B and its successor provision, Article 96.
The Special Officer for Wakfs Madras v. Subramanyam and others [AIR 1977 Madras 79] High Court of Madras Definition of Manager in Article 96 Interpreted the term “Manager” in Article 96 to include the Waqf Board.
U.P. Sunni Central Board of Waqf and Another v. Hasan Jehan Begum and Another [AIR 1977 All 18] High Court of Judicature at Allahabad Extent of Dedication in Waqf-alal-aulad Clarified that in Waqf-alal-aulad, the entire property is deemed dedicated, not just a portion of income.
Anisur Rahman and others v. Sheikh Abul Hayat [AIR 1965 Patna 390] High Court of Patna Void Transfers and Limitation Held that Article 134B does not apply to void transfers, and adverse possession starts from the date of the transfer.
Central Board of Secondary Education and another v. Aditya Bandopadhyay and others [(2011) 8 SCC 497] Supreme Court of India Fiduciary Relationship Discussed the meaning of “fiduciary” and “fiduciary relationship.”
C. Beepathumma and others v. Velasari Shankaranarayana Kadambolithaya and others [AIR 1965 SC 241] Supreme Court of India Law of Limitation Held that the law of limitation as on the date of the suit prevails.
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Judgment

Submission Court’s Treatment
Applicability of Article 96 Rejected. Article 96 does not apply to void transfers; it applies to voidable transfers.
Applicability of Article 65 Accepted. Article 65 applies as the sales were void, and adverse possession began from the date of the sale.
Extinguishment of Waqf Rights under Section 27 Accepted. Section 27 of the Limitation Act, 1963, extinguishes rights after 12 years of adverse possession.
Beneficiary’s Claim of Adverse Possession Accepted. A beneficiary can claim adverse possession as they do not hold a fiduciary duty like a Mutawalli.
Fresh Start of Limitation with New Mutawalli Rejected. The appointment of a new Mutawalli does not create a fresh starting point for limitation.
Validity of Compromise Rejected. The compromise was void due to lack of Board sanction under Section 69 of the Uttar Pradesh Muslim Waqf Act, 1960.
Validity of Sales Rejected. The sales were void as they were made without prior sanction of the Board, violating Section 49A of the Uttar Pradesh Muslim Waqf Act, 1960 and Section 51(1) of the Waqf Act, 1995.
Impact of Section 107 of the Waqf Act Rejected. Section 107 does not revive extinguished titles under prior laws.

How each authority was viewed by the Court:

  • [AIR 1940 PC 116]*: The court reiteratedthe principle that Waqf properties are subject to adverse possession.
  • [AIR 1956 SC 713]: The court distinguished this case, stating that a Mutawalli cannot claim adverse possession, but a beneficiary can.
  • [AIR 1970 Allahabad 509]: The court reiterated that Waqf property vests in God Almighty or the Waqf itself.
  • [(1985) 1 SCC 28]: The court affirmed that entries in the Waqf Register are not open to question in an appeal against the Collector’s order.
  • [1987 All LJ 1282]: The court recognized that the Waqf Tribunal has wide powers to examine the validity of Requisition Orders.
  • [(2007) 4 SCC 632], [1994 Suppl. (2) SCC 109], [AIR 1999 SC 1136]: The court distinguished these cases, stating that they did not apply to void transfers.
  • [AIR 1965 SC 1722]: The court discussed the meaning of “charitable purpose” in the context of Waqfs.
  • [(1994) 6 SCC 360]: The court distinguished this case, stating that the Limitation Act does apply to Waqf properties.
  • [(2008) 9 SCC 306]: The court explained the differences between Article 134B of the 1908 Act and Article 96 of the 1963 Act.
  • [(1967) 2 SCR 318]: The court clarified that the appointment of a Mutawalli does not create a fresh start of limitation.
  • [(2020) 1 SCC 1], [(2004) 10 SCC 779]: The court relied on these cases to support the plea that a beneficiary can claim adverse possession.
  • [AIR 1962 SC 1722], [AIR 1971 SC 1691]: The court reiterated that Waqf property is transferred to the Almighty, and the Mutawalli has no right to transfer it.
  • [AIR 1983 Orissa 205]: The court adopted the reasoning to distinguish between void and voidable transfers.
  • [AIR 1966 SC 859]: The court distinguished this case on the basis that it did not consider the question of void or voidable transactions.
  • [AIR 1974 AP 175]: The court discussed the history and purpose of Article 134B and its successor provision, Article 96.
  • [AIR 1977 Madras 79]: The court interpreted the term “Manager” in Article 96 to include the Waqf Board.
  • [AIR 1977 All 18]: The court clarified that in Waqf-alal-aulad, the entire property is deemed dedicated, not just a portion of income.
  • [AIR 1965 Patna 390]: The court held that Article 134B does not apply to void transfers, and adverse possession starts from the date of the transfer.
  • [(2011) 8 SCC 497]: The court discussed the meaning of “fiduciary” and “fiduciary relationship.”
  • [AIR 1965 SC 241]: The court held that the law of limitation as on the date of the suit prevails.

The Court held that the transfers were void, and the respondents perfected their title through adverse possession. The Court emphasized that the appointment of a new Mutawalli does not create a fresh starting point for limitation.

Flowchart of the Case

Creation of Waqf by Mohd. Akbar Ali Khan (1934)
↓
Sale of Waqf Property by Akbar Ali Khan (1948)
↓
Legal Challenge by Qasim Ali Khan (1950)
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Akbar Ali Khan’s Death; Qasim Ali Khan Becomes Mutawalli (1958)
↓
Qasim Ali Khan’s Suit for Declaration of Waqf Property (1959)
↓
Kazim Ali Khan Transfers Share to Mohd. Ahmad Ali Khan (1960)
↓
Suit Decreed in Favor of Qasim Ali Khan (1962)
↓
Compromise Between Brothers; Waqf Declared a Paper Transaction (1974)
↓
Qasim Ali Khan Sells Share to Syed Mohammad Ali Khan (1974)
↓
Waqf Board Orders Recovery of Land (1997)
↓
Appeals to Waqf Tribunal (2003)
↓
Supreme Court Upholds Adverse Possession (2023)

Conclusion

The Supreme Court’s judgment in Sabir Ali Khan vs. Syed Mohd. Ahmad Ali Khan clarifies the interplay between Waqf law, property law, and limitation law. The Court held that while Waqf properties are protected under the Waqf Act, they are not immune to the law of adverse possession. The key findings include:

  • Adverse Possession: A beneficiary of a Waqf can acquire title through adverse possession, unlike a Mutawalli who has a fiduciary duty.
  • Limitation: Article 65 of the Limitation Act applies to void transfers, and adverse possession starts from the date of the transfer.
  • Void Transfers: Transfers of Waqf property without the prior sanction of the Waqf Board are void ab initio.
  • Compromises: Compromises relating to Waqf property require the sanction of the Board.
  • Section 107: Section 107 of the Waqf Act, 1995, does not revive extinguished titles under prior laws.
  • Mutawalli: The appointment of a new Mutawalli does not create a fresh starting point for limitation.

This judgment underscores the importance of timely action in protecting Waqf properties and highlights the legal complexities involved in cases of adverse possession over such properties. The Supreme Court’s decision provides clarity on the application of limitation laws and the rights of beneficiaries in relation to Waqf property, setting a precedent for future cases.

Source: Sabir Ali Khan vs. Syed Mohd. Ahmad Ali Khan