Holding

A beneficiary of a waqf, being neither a trustee nor a co‑owner, may acquire title by adverse possession, and Article 96 does not apply to void transfers; the title of the respondents was perfected by adverse possession.

Summary

The case concerned a Shia waqf‑al‑aulad created in 1934, whose property was allegedly alienated by two void sales in 1960 and 1974 without the sanction of the Waqf Board. The respondents, who were beneficiaries of the waqf, claimed title by adverse possession, while the appellant argued that limitation provisions (Article 96 of the Limitation Act) barred the claim. The Supreme Court held that a beneficiary, unlike a mutawalli or trustee, can acquire title by adverse possession even of waqf property, that Article 96 applies only to voidable—not void—transfers, and that the limitation period ran from the dates of the void sales under Article 65 and Section 27. Consequently, the respondents' title by adverse possession was upheld and the appeal dismissed.

Issues considered

Whether a beneficiary of a waqf can acquire title by adverse possession of waqf property.
Whether the sales in 1960 and 1974 are void ab initio under Sections 49A/49B and 51 of the Waqf Acts.
Whether Article 96 of the Limitation Act, 1963 applies to the void transfers.
Whether Article 65 of the Limitation Act, 1963 and Section 27 govern the limitation period.
Whether Section 107 of the Waqf Act, 1995 bars the operation of the Limitation Act.
Whether the waqf is valid and registered under the applicable statutes.

Legislation cited

Limitation Act, 1963s. Article 65, s. Article 96, s. Section 27
Mussalman Waqf Act, 1923
Mussalman Waqf Act, 1936s. Section 2(2), s. Section 38(1)
Mussalman Waqf Validating Act, 1913
Uttar Pradesh Muslim Waqf Act, 1960s. 49A, s. 49B, s. 69
Waqf Act, 1995s. 107, s. 51(1), s. 52(1), s. 52(2)

Subjects

waqfadverse possessionbeneficiarymutawallilimitation actarticle 96article 65void transfersection 107section 52religious endowment

Judgment

930 [2023]REPORTS
SUPREME COURT 6 S.C.R. 930 [2023] 6 S.C.R.

A SABIR ALI KHAN
v.
SYED MOHD. AHMAD ALI KHAN AND OTHERS
(Civil Appeal Nos. 7086-7087 of 2009)
B APRIL 13, 2023
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Waqf Act, 1995:
Wakf properties, of parties who are Shia Muslims –
C Beneficiaries and their rights – Beneficiaries perfecting title by
adverse possession – Permissibility of – Held: A beneficiary of a
waqf, being neither a trustee nor a co-owner of waqf property, can
acquire title through adverse possession even if it is the property of
the waqf – There cannot be any embargo against a beneficiary of a
waqf claiming acquisition of title by adverse possession – Beneficiary
D
of a waqf cannot be described as a stranger to the waqf – No doubt,
a beneficiary is not to be conflated in his position with a Mutawalli,
who is a manager of the waqf – Property of the waqf, in law vests
in the almighty – For the purposes of s. 10 of the Limitation Act, he
is treated as a trustee – Beneficiary would be entitled to receive
E benefits in terms of the waqf deed – In the case of adverse possession,
since a requirement is that the possession must be hostile to the real
owner and since the real owner is the almighty, the requirement
would be that such a person must have the necessary animus to
hold contrary to the title of God – In the case of a co-owner while
mere assertion of title in himself may hardly suffice as the possession
F
of a co- owner is taken to be possession on behalf of all co-owners
a case of ouster being successfully established would entitle the
co-owner to succeed – Beneficiary of a waqf is endowed with rights
in terms of the waqf deed – No duty is culled out, as such, to protect
the interest of another.
G ss. 52(2) and 107 – Recovery of wakf property transferred in
contravention of s. 51 – Waqf created by one shia muslim, by a
deed in the year 1934 – Original Waqif had three sons – Eldest son-
QA became mutawalli on death of his father – However, his younger
brothers got their names mutated as bhumidars in revenue records
H
930
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 931
OTHERS

for the said property – Suit filed by the eldest son seeking declaration A
that it was a waqf property and sought relief of expunging the names
of his two brothers – During the pendency of suit, one of the brother
of QA, sold his one- third share to one of his nephew, referred as
first sale – Though said suit decreed in favour of the plaintiff, it
abated in view of the consolidation proceedings – First sale was
B
held to be infirm – Thereafter, in 1974, compromise entered between
the three brothers and they purported to disown the waqf – Based
on the compromise, second sale made by QA in favour of his other
nephew – Challenged to, by QA’s son in a writ petition – In 1988,
QA resigned as mutawali – Case of the appellant-son of the
transferor that QA’s son became the mutawali – Writ petition C
withdrawn – Complaint filed before the U.P. Shia Waqf Board by
QA’s other son challenging the transfer of waqf property by his
father and uncle, as also the compromise – Controller of waqf Board
by invoking s. 52(1) directed the Collector to recover and deliver
possession of the disputed land from the unauthorized occupants,
D
nephew of QA-first respondents – Collector directed the respondents
to deliver possession of the property to the Board within 30 days –
First respondents challenged the same and the appeals were allowed
by the ADJ – However, the High Court set aside the writ petition
holding that the ADJ did not possess jurisdiction – In appeal, the
waqf tribunal held that the respondents had acquired title by adverse E
possession and set aside the order of the Collector – Said order
upheld by the High Court – However, the revision petitions dismissed
– On appeal, held: Beneficiary of a waqf, being neither a trustee
nor a co-owner of waqf property, acquired title through adverse
possession even if it was the property of the waqf – High Court
F
rightly held that the father created a valid and effective waqf as
required of a Shia Muslim and after his death, his eldest son took
over as Mutawali – ss. 49A and 49B came to be inserted by Act 28
of 1971 and the second sale took place in 1974, which is after the
insertion of ss. 49A and 49B in the 1960 Act, thus, the power, vested
with the Board to take action for recovery of possession u/s. 49B – G
Thus, the sale deed of the year 1974 by eldest son in favour of his
nephew, being in the teeth of the prohibition against a sale without
the previous sanction of the Board, was illegal – In order that a suit
may fall u/Art. 96, there must be a transfer by a Manager which
would include a Mutawalli of a waqf – Art. 96 would not apply as
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932 SUPREME COURT REPORTS [2023] 6 S.C.R.

A it is a case of a void sale and not voidable sale – Uttar Pradesh
Muslim Waqf Act, 1960 – s. 49 A, B.
s. 107 – Recovery of Wakf properties – Applicability of the
Art.96 and 65, as regards the first sale effected in the year 1960
and second sale in the year 1974, when the Waqf Act came into
B force on 01.01.1996 – Stated – Limitation Act, 1963 – Arts. 96 and
65.
Dismissing the appeals, the Court
HELD: 1.1 The High Court in the impugned order has
confirmed the findings of the tribunal that respondent no.1 in
C both the cases have acquired title by adverse possession. This is
on the basis that the first sale was effected in the year 1960 and
the second sale was effected in the year 1974. The Act came into
force with effect from 1.1.1996. The period began to run from the
dates of the two sale deeds as the sales were void. The further
D finding is that Article 96 of the Limitation Act, 1963 did not apply
to the first sale of the year 1960. The said sale was effected at a
time when QA the eldest brother was the Mutawalli. The sale
was effected by a person who in other words was not the
Mutawalli. Therefore, Article 96 did not apply. As far as the second
sale is concerned, it was effected by QA on 26.09.1974 purporting
E to convey his one-third right to his nephew who is the first
respondent in the other appeal. The further reasoning of the High
Court is that the second sale deed was executed by the Mutawalli.
The court thereafter demarcated the field covered by Articles 65
and 96. The court then also took into consideration Section 27 of
F the Limitation Act, 1963. The Court found the proper
interpretation was that Article 96 was to be confined to suits to
recover possession where the right to recover possession had
already not been lost under Section 27 of the Limitation Act, 1963.
Article 96, in other words, it was found, applied to voidable
transfers. On the said basis, finding that the second sale
G represented a case of void transfer, it was found that Article 96
did not assist the appellant. It was also found that there is no
obstacle in a beneficiary of a Wakf perfecting title by adverse
possession. Such an obstacle, undoubtedly, existed in the case of
a Mutawalli, a trustee or a co-owner. A beneficiary was none of
H the above. Thus, proceeding on the basis that the first respondent
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 933
OTHERS

in both the appeals were beneficiaries of the Wakf and as the A
sales under which they claimed were found to be void, the period
of limitation contemplated under Article 65 of the Limitation Act
began to run from the date of the sale. This meant that when the
Act was born on 01.01.1996, the title stood vested with the first
respondent by adverse possession. It is further found that Section
B
107 of the Act under which the Limitation Act was not applicable
to the Act could not rescue the case of the appellant. [Para 16][958-
G-H; 959-A-E]
1.2. As far as the first sale is concerned, the sale was not
effected by the Mutawalli or the Manager of the Waqf. The sale
was effected by the brother of the Mutawalli. Thus, the High Court C
is correct in finding that Article 96 will not come to the aid of the
appellant. [Para 20][961-C-D]
1.3. As far as the second sale is concerned, it was no doubt,
executed by the Mutawalli by sale deed 26.09.1974. This is a
sale executed by him on the strength of the compromise which D
was entered into between the three brothers on 13.02.1974. The
compromise led to order dated 12.09.1974 being passed by the
Deputy Director (Consolidation) setting aside the dismissal of
the revision by order dated 20.09.1969 as also the dismissal of
the first restoration application dated 02.03.1972. If the said sale E
is found to be valid, then obviously, the appellant would fail. If on
the other hand, the sale is void, the question would be whether
the proceeding initiated beyond 12 years from the date of the
sale would be within time. [Para 21][961-D-F]
1.4. There cannot be any doubt that Waqf property can be F
the subject matter of acquisition of title by adverse possession.
That a Mutawalli however cannot acquire rights over waqf
property by adverse possession is not open to question. The High
Court finds that Article 96 will not apply as it is a case of a void
sale and not voidable sale. [Paras 22, 23][961-H; 961-A]
G
1.5. Sections 49A and 49B were inserted in the 1960 Act
by way of U.P. Act 28 of 1971. Therefore, the sale deed dated
26.09.1974 by QA in favour of his nephew, being in the teeth of

H
934 SUPREME COURT REPORTS [2023] 6 S.C.R.

A the prohibition against a sale without the previous sanction of
the Board, was illegal. It is this narrative which gives rise to the
question as to whether the sale is void as it was in transgression
of a statutory mandate, and other related issues. [Para 35][973-
F]
B 1.6. Section 52 of the Act, which is the fountain head of the
action by the Controller of the Waqf Board and the Collector, is a
sequel to Section 51. Section 51(1)(a) as substituted by Act 27 of
2013, subject to the provisos declares a sale, gift, exchange or
mortgage or transfer of waqf property to be ab initio void. Section
52 of the Act provides that if the Board is satisfied, after making
C any inquiry, 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 previous sanction
of the Board in contravention of Sections 51 or 56 of the Act, it
may send a requisition to the Collector of the place within which
D the property is situated to obtain and deliver possession. The
Collector is bound to pass an order directing the person in
possession to deliver the property to the Board within 30 days
from the receipt of the Order. It is under this provision that the
impugned Orders came to be passed. [Paras 36, 37][974-B; 974-
D-F]
E
1.7. The Act came into effect on 01.01.1996. Section 52
empowers the Board to send a requisition to the Collector, if
property has been transferred without the previous sanction of
the Board in contravention of Section 51, inter alia. Section 51
has provided that any sale of property, which is waqf property,
F without the previous sanction of the Board, would be void. The
two sales in this case took place prior to 01.01.1996. The first
sale is dated 14.10.1960 whereas the second sale is dated
13.09.1974. [Para 38][974-F-H]
1.8. Section 49B of the 1960 Act is pari materia with Section
G 52 of the Act. In other words, it provided that the Board may, if a
transfer is made contravening Section 49A of the 1960 Act, send
requisition to the Collector for recovery of possession. Section
49A of the 1960 Act also provided on similar terms as provided

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SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 935
OTHERS

in Section 51(1) of the Act that for a sale of property comprised in A
a waqf, previous sanction of the Board was necessary. As far as
Sections 49A and 49B came to be inserted by Act 28 of 1971 and
the second sale took place in 1974, which is after the insertion of
Sections 49A and 49B in the 1960 Act, therefore, the power,
indeed, vested with the Board to take action for recovery of
B
possession under Section 49B. Under Section 112(3) of the Act,
it is proceeded on the basis that the 1960 Act would stand
repealed. However, the proviso declares that the repeal would
not affect the previous operation of the corresponding law. The
corresponding law, in this case is Section 49A read with Section
49B. Action taken in the exercise of the power thereunder, is to C
be deemed as taken in the exercise of powers under the Act.
The powers under the Act must be treated as flowing from Section
52 of the Act. The proviso to Section 112(3) provides that the
provisions in the Act, which in this case would be Section 52,
must be treated as being on the Statute Book. [Para 40][975-D-
D
H]
1.9. The waqf in question is created by the father by deed
dated 26.07.1934. It is, no doubt, a waqf-alalaulad. A waqf-alal-
aulad is a waqf under Mohammaden Law. [Para 43][976-D]
1.10. Section 3 of the Mussalman Wakf Act, 1923 obliged E
the Mutawalli to furnish statement containing certain particulars
to the competent Court. Notice of the Statement was to be
published under Section 4. The 1923 Act provided for audit of
accounts and the provision for expense which could be incurred
by the Mutawalli came to be inserted. Section 10 provided for
penalty. Certain waqfs were excluded from its purview under F
Section 12. In the United Provinces, which meant the United
Provinces of Agra and Awadh, the 1936 Act, came to be enacted.
[Para 45][977-E-F]
1.11. No doubt, the Court was dealing with a case of a waqf-
alal-aulad. The Judgment must essentially be viewed in the G
context of the definition of ‘religious and charitable purpose’
provided in the Act in question. [Para 49][980-A]

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936 SUPREME COURT REPORTS [2023] 6 S.C.R.

A 1.12. The Wakf in question is dated 26.07.1934. The 1936
Act applied to Wakfs created before or after the commencement
of the Act. However, Section 2(2) declares that the Act shall not
apply to certain waqfs. They included a waqf whereunder not less
than 75 per cent of the total income, after deduction of certain
sums, was for the time being payable for the benefit of the waqif
B
or his descendants. However, Section 38(1) of the 1936 Act made
it clear that every waqf, whether subject to the Act or not and
whether created or after the commencement of the 1936 Act,
shall be registered. Proceeding on the basis that the waqf dated
16.07.1934 was waqf-alal-aulad and which, in terms of Section
C 2(2)(i), was not subject to the provisions of the 1936 Act, it was
compulsorily registerable in view of Section 38(1). Any waqf which
is registered under the 1936 Act would also be deemed to be
registered under the 1960 Act. That is, though the 1936 Act did
not apply to certain wakfs, but when it comes to registration under
Section 38, it was mandatory for every wakf to be registered (i)
D
whether subject to the Act and ii) whether created before the Act
or not. Thus, the registration of the Wakf dated 16.07.1934, was
in fact compulsory under Section 38 of the 1936 Act. [Para 50][980-
B-E]
1.13. It was found that there was a valid waqf from the
E standpoint of the Shia law and the Consolidation Authorities also
found that there was a waqf till the Deputy Director, Consolidation
revisited the matter only on the basis of the compromise between
the brothers, the terms of the waqf did contemplate a certain
sum being set apart for charitable purposes. In this regard, the
F stipulation in the deed that a sum of Rs. 500/- will be spent on
charitable purpose such as Muazzin and lighting in the mosque
and emambara, majlallse ashra of the sacred month of Moharram
is noticed. No doubt, there is the residuary clause, which reveals
that the wakif has provided that if descendants cease to exist,
the income from the endowed property will be managed by a
G Committee to be spent for charitable purposes. [Para 51][980-E-
H; 981-A]
1.14. The extent of the income, which is set apart for the
purpose, be it religious, pious or charitable, in the facts, cannot
detract from the dedication of the whole property. [Para 53]
H
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 937
OTHERS

1.15. The fact that the property of the waqf has been dealt A
with in a manner, which is illegal, or that it was not questioned,
cannot deflect this Court from either finding that there was a
valid waqf or that the property which remained of the waqf, must
be dealt with in accordance with law. The compromise before the
Deputy Director (Consolidation) and the order based on the same
B
are in the teeth of Section 69 of the 1960 Act, therefore, the
orders passed by the Consolidated Officer and Settlement Officer
about the Waqf would revive. [Para 54][982-G-H; 983-A]
1.16. The High Court proceeded on the basis that a
Mutawalli may not be able to acquire title by adverse possession.
Equally, a trustee and a co-owner stand precluded in this regard. C
A beneficiary of a waqf, however, being neither a trustee nor a
co-owner of waqf property, can acquire title through adverse
possession even if it is the property of the waqf it is found. [Para
55][983-B-C]
1.17. A beneficiary of a waqf cannot be described as a D
stranger to the waqf. No doubt, a beneficiary is not to be conflated
in his position with a Mutawalli. The Mutawalli is a manager of
the waqf. The property of the waqf, in law vests in the almighty.
The Mutawalli acts merely as the manager. For the purposes of
Section 10 of the Limitation Act, no doubt, he is treated as a E
trustee. A plea of adverse possession undoubtedly requires the
requisite intention, viz., animus possidendi. This is besides actual
possession for the required period. A beneficiary would be entitled
to receive benefits in terms of the waqf deed. In the case of
adverse possession, since a requirement is that the possession
must be hostile to the real owner and since the real owner is the F
almighty, the requirement would be that such a person must have
the necessary animus to hold contrary to the title of God. In the
case of a co- owner while mere assertion of title in himself may
hardly suffice as the possession of a co- owner is taken to be
possession on behalf of all co-owners a case of ouster being G
successfully established would entitle the co-owner to succeed.
[Para 56][983-C-H]
1.18. In order that a suit may fall under Article 96, there
must be a transfer by a Manager which would include a Mutawalli
H
938 SUPREME COURT REPORTS [2023] 6 S.C.R.

A of a waqf. It must be for valuable consideration. In order that
there is a transfer, it must not be still born. It should not be a void
transaction. This is for the reason that a void transaction would
not amount to a transfer. An unauthorized alienation, a transfer,
which was made by a Mutawalli, for which, there was no authority
in the waqf deed, would constitute a transfer to which Article
B
134B and Article 96 would have applied. With the advent of the
laws relating to Waqfs which included the 1960 Act in Uttar
Pradesh, the Mutawalli was obliged to obtain the previous
sanction of the concerned Board. In cases where a transfer is
made under the 1960 Act without previous sanction of the Board,
C the transfer would be void. This is for the reason that the
requirement of previous sanction is a statutory command
conceived with a definite and sublime purpose and the
transgression of which can only result in a void transaction. There
is no provision which enables the validating of such a sale. In
fact, the stand of respondents 2 and 4 is that, the transfers were
D
void. Therefore, the authorities have also proceeded on the basis
that the transaction was void and therefore can proceed on the
said foundation. [Para 61][985-G-H; 986-A-D]
1.19. Proceeding on the basis that the sale executed in 1974
was a void transaction. Article 96 of the Limitation Act, 1963
E cannot be invoked in the case of a void transaction. The impugned
Order, proceeding on the said premise, cannot be said to be
flawed. There cannot be any embargo against a beneficiary of a
waqf claiming acquisition of title by adverse possession. While
he may be a person who can be treated as “interested” in a waqf
F within the meaning of Section 2(k) both by reason of the fact that
he is a recipient of pecuniary or other benefit and also he may be
a descendant of the wakif, it is a far cry from describing him as a
Trustee. The beneficiary may have benefits coming his way in
terms of the waqf deed. He may be clothed with rights in this
regard. [Para 62-64][986-D-F; 987-A-B]
G
1.20. The term ‘fiduciary’, as such, has not been defined,
so is the case with the ‘fiduciary relationship’. In fact, Section 88
of the Trusts Act, 1882, inter alia, provides that a person standing
in a fiduciary character and bound to protect the interest of

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SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 939
OTHERS

another, cannot by using such character, obtain an advantage and A
resist making over the benefit to the person, whose interest he
was bound to protect. A fiduciary can, therefore, be taken to be a
person who becomes charged with the duty to protect the interest
of another. Fiduciary relationship is founded upon the reposing
of confidence by one in another. The beneficiary of a waqf is
B
endowed with rights in terms of the waqf deed. No duty is culled
out, as such, to protect the interest of another. No doubt, it could
be said that as the property in a waqf, vests in the Almighty, there
must be a concern and, undoubtedly, a moral duty to act in a
manner that the object of the wakf is fostered. But a beneficiary
is not like a trustee, who assumes possession in his character as C
a trustee, coming under the restraint of discarding his character
as trustee and donning the robes of an encroacher or a person
asserting hostile title. It is not, as if, the beneficiary was in
possession of the property in any capacity prior to the sale. [Paras
65 - 67][987-C-D; 988-H; 989-A-B; 989-C]
D
1.21. In the second sale, the former Mutawalli, viz., QA,
entered into the sale deed on the strength of a compromise and
the order of the Deputy Director, Consolidation, under which, he
purported to act as one possessed of one-third right in his own
right. No doubt it would have mattered little to the applicability
of Article 96 that the transferor purported to transfer waqf property E
professing it to be his property. But this is a case where the
voidness arises on account of the fact that what is found to be
waqf property has been purported to be alienated contrary to the
peremptory statutory mandate. [Para 68][989-D-F]
1.22. The argument that Section 107 of the Act would assist F
the appellant in tiding over the bar of limitation does not appeal.
Section 107 of the Act, no doubt, proclaims that nothing in the
Limitation Act,1963 shall apply to any suit for possession of the
immovable property comprised in any waqf or for possession of
any interest in such property. [Para 69][989-F-G] G
1.23. The Act came into force on 01.01.1996. The first sale
was effected on 14.10.1960. The second sale was effected on
26.09.1974. As far as the first sale is concerned, Article 96 cannot

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940 SUPREME COURT REPORTS [2023] 6 S.C.R.

A be pressed into service as the transfer was not purported to be
made by the Mutawalli. The doors stood open for the application
of Article 65. As far as the second sale is concerned which was
effected in the year 1974, the Article 96 was not applicable, the
only other competing Article vying for acceptance, appears to be
Article 65. Applying Article 65 and as the adverse possession
B
would kick in from the date of the transfer, on the expiry of twelve
years, i.e., in 1986 applying Section 27 of the Limitation Act
whatever title remained within the meaning of Section 65 would
stand extinguished. The Act was brought into force only with effect
from 01.01.1996. The purport of Section 107 cannot be understood
C to be that it would revive an extinguished title as nothing stood
in the way of running of time from the date of the second sale
under the law as it stood. [Para 70][989-G-H; 990-A-C]
1.24. No doubt, the law of limitation is what prevails as on
the date of the suit. Taking 1997 as the date, on which a suit is
D filed, and applying the Act, which enables the plaintiff to disregard
the bar of law of limitation, it cannot mean that what stood
extinguished under the earlier law would revive. [Para 71][990-
C-D]
1.25. The issue in the High Court essentially centered
E around the question whether Article 96 would apply and applying
the same, the appellant could get around the impact of Article 65
read with Section 27 of the Act. Article 96 has no application.
Even in regard to a proceeding under the Act be it Section 52 if
as on the date the action is taken, the title in the property stood
vested with the person in possession by virtue of Section 27 of
F the Limitation Act then it may not be permissible to ignore the
right which had been acquired. [Para 72][991-A-B]
T. Kaliamurthi and Another v. Five Gori Thaikkal Wakf
and Others (2008) 9 SCC 306 : [2008] 11 SCR 758;
C. Beepathumma and Others v. Velasari
G Shankaranarayana Kadambolithaya and Others AIR
1965 SC 241 : [1964] SCR 836 – relied on.
Chintamani Sahoo (deceased by LR.) and Others v.
Commissioner of Orissa Hindu Religious Endowments,

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SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 941
OTHERS

Orissa and Others AIR 1983 Orissa 205; Anisur A
Rahman and Others v. Sheikh Abul Hayat AIR 1965
Patna 390 – approved.
Shri Mohammad Ismail Faruqui v. Union of India and
Others AIR 1995 SC 605 : [1994] 5 Suppl. SCR 1; The
Mosque Known as Masjid Shahid Ganj, and Others v. B
Shiromani Gurdwaba Prabandhak Committee, Amritsar,
and Another AIR 1940 PC 116; Faqir Mohd. Shah v.
Qazi Fasihuddin Ansari and Others AIR 1956 SC 713;
Moattar Raza and Others v. Joint Director of
Consolidation, U.P. Camp at Bareilly and Others AIR
C
1970 Allahabad 509; Khilli Ram v. State of Rajasthan
(1985) 1 SCC 28 : [1985] 1 SCR 1136; (Smt.) Amina
Khatoon v. Third Addl. D.J. Farukhabad and Others
1987 All LJ 1282; Chhedi Lal Misra (Dead) Through
Lrs. v. Civil Judge, Lucknow and Others (2007) 4 SCC
632 : [2007] 2 SCR 568; K. S. Viswam Iyer (Dead) D
Through Lrs. v. State Wakf Board, Madras (1994) Suppl.
2 SCC 109; Wali Mohammed (Dead) by Lrs. v. Rahmat
Bee (Smt) and Others AIR 1999 SC 1136 : [1999] 1
SCR 852; Fazlul Rabbi Pradhan v. State of West Bengal
and Others [1965] 3 SCR 307 : AIR 1965 SC 1722;
E
Dr. M. Ismail Faruqui and others v. Union of India
(1994) 6 SCC 360 : [1994] 5 Suppl. SCR 1; Syed Yousuf
YarKhan and Others v. Syed Mohammed Yar Khan and
Others [1967] 2 SCR 318; M. Siddiq (Dead)Through
Legal Representatives (Ram JanmabhumiTemple Case)
v. Mahant Suresh Das and Others (2020) 1 SCC 1 : F
[2019] 18 SCR 1; Karnataka Board of Wakf v. Govt.
of India and Others (2004) 10 SCC 779 : [2004] 1
Suppl. SCR 255; Thakur Mohd. Ismail v. Thakur Sabir
Ali AIR 1962 SC 1722 : [1963] SCR 20; Ahmed G.H.
Ariff and Others v. Commissioner of Wealth Tax,
G
Calcutta AIR 1971 SC 1691 : [1970] SCR 19; Chinna
Jeeyangar Mutt, Tirupath v. C. V. Purushotham and
Others AIR 1974 AP 175; The Special Officer for Wakfs
Madras v. Subramanyam and Others AIR 1977 Madras
79; Abdul Fatah Mohammad Ishak v. Russomy Dhar
H
942 SUPREME COURT REPORTS [2023] 6 S.C.R.

A Chaoudhary 22 Indian Appeals 76; U.P. Sunni Central
Board of Waqf and Another v. Hasan Jehan Begum and
Another AIR 1977 All 18; Central Board of Secondary
Education and Another v. Aditya Bandopadhyay and
Others (2011) 8 SCC 497 : [2011] 11 SCR 1028 –
referred to.
B
Mulla on “Principles of Mohammadan Law” (22nd
Edition) – referred to.
Case Law Reference

C [1994] 5 Suppl. SCR 1 referred to Para 8 (v)
AIR 1956 SC 713 referred to Para 8 (vi)
[1985] 1 SCR 1136 referred to Para 8 (xvi)
[2007] 2 SCR 568 referred to Para 9 (vi), 14
D (1994) 2 Suppl. SCC 109 referred to Para 9 (vi)
[1999] 1 SCR 852 referred to Para 9 (vi)
1965 3 SCR 307 referred to Para 11
[1994] 5 Suppl. SCR 1 referred to Para 11
E (1967) 2 SCR 318 referred to Para 13
[2019] 18 SCR 1 referred to Para 13
[2004] 1 Suppl. SCR 255 referred to Para 13
[1963] SCR 20 referred to Para 14
F
[1970] SCR 19 referred to Para 14
[2008] 11 SCR 758 relied on Para 72
[2011] 11 SCR 1028 referred to Para 65
[1964] SCR 836 relied on Para 71
G
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7086-
7087 of 2009.
From the Judgment and Order dated 02.05.2008 of the High Court
of Judicature at Allahabad in CR Nos. 595 and 596 of 2003.
H
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 943
OTHERS

Salman Khushid, Sr. Adv., Irshad Ahmad, Ms Lubna N, A
Ms. Kamna Singh, Anurag Rawat, Shaik Mohd Haneef, Aman Khullar,
Ms. Sommya Chaturvedi, Khan, Advs. for the Appellant.
P.S. Patwalia, S.R. Singh, Sr Advs., Gaurav Agrawal, Ejaz
Maqbool, Ms. Akriti Chaubey, Ms. Tanya Shree, Ms. Harshika Verma,
Saif Zia, Syed Mohd. Muztaba, Pradeep Misra, Mangal Prasad, Prateek B
Yadav, Prithavi Yadav, Mitr Rao, Gaurav, Advs. for the Respondents.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. The Appeals are lodged against the Order passed by the High C
Court of Allahabad in Civil Revision Nos. 595 and 596 of 2003. The
Revisions, in turn, were directed against the Order passed by the Waqf
Tribunal on an Appeal filed by the first respondent before us. The first
respondent again, in turn, put in issue the Order passed by the Collector,
Bulandshahar. The Order passed by the Collector was passed under
Section 52(2) of the Waqf Act, 1995 (hereinafter referred to as the D
‘Act’). Finally, we must point out at this stage that the Collector was
acting on the basis of a requisition given by the Controller of Waqf Board
to obtain and deliver possession of the land in dispute to the Waqf Board.
The requisition was made under Section 52(1) of the Act.
2. By the Order passed by the Tribunal, it had set aside the Order E
passed by the Collector on various grounds. By the impugned Order
passed by the High Court in the Revisions filed against the aforesaid
Order by the appellants, the High Court has affirmed the Order passed
by the Tribunal, however, on the ground that the first respondent, in the
Appeals, had perfected title by adverse possession. F
3. We have heard Shri Salman Khurshid, learned Senior Counsel
on behalf of the Appellant and Shri P.S. Patwalia, learned Senior Advocate
on behalf of the first respondent and Shri S.R. Singh, learned Senior
Advocate on behalf of the second respondent-the Assistant Survey
Commissioner, Waqk, Bulandshehar and the fourth respondent-the
G
Collector, Wakf, Bulandshehar.
FACTS
4. We begin by setting out the following genealogical chart:

H
944 SUPREME COURT REPORTS [2023] 6 S.C.R.

A

B

C 5. Parties are Shia Muslims. Mohd. Akbar Ali khan purported to
create a waqf-alal-aulad by a deed dated 26.07.1934. He appointed
himself as a first Mutawalli. However, he purported to execute a sale
deed in the year 1948 in respect of a tube well and some adjoining land.
Qasim Ali Khan, one of the sons of Akbar Ali Khan, filed OS No. 1 of
1950 impugning the sale deed. The trial court decreed the said suit and
D the decree was affirmed by the High Court by its judgment rendered on
11.07.1962. The High Court in the course of its Judgement did hold that,
Akbar Ali Khan had created a valid and effective waqf as required of a
Shia Muslim which he was. On 16.12.1958, Akbar Ali Khan passed
away. He left behind him three sons, Qasim Ali khan, Kazim Ali Khan
E and Raza Ali Khan. It appears that Qasim Ali Khan took over as the
Mutawalli. His name was entered in the register of waqf. However, his
younger brothers, i.e., Kazim Ali Khan and Raza Ali Khan got their
names mutated in the Revenue Records as Bhumidhar in regard to the
property. This led to the second suit again by Qasim Ali Khan, i.e., OS
No. 421 of 1959. He sought a declaration that the plaint schedule property
F was a waqf property. He further sought the relief of expunging the names
of his two brothers. The said suit was decreed in favour of the plaintiff
on 21.05.1962. Mohd. Kazim Ali Khan on 14.10.1960 during the pendency
of the suit transferred his alleged one-third share to Mohd. Ahmad Ali
Khan who was his nephew being the son of Raza Ali Khan. This shall
G be referred to as the first sale.
6. After a remand in an Appeal, when the Suit was pending,
consolidation proceedings began in the village. Under the law, the Suit
was to stand abated. The Suit stood abated. Shri Qasim Ali Khan filed
objection seeking expunging of the names of the other sons, viz., his
H brothers. This was done on the basis that the properties were waqf
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 945
OTHERS [K. M. JOSEPH, J.]

properties. The Consolidation Officer accepted the objection. He directed A
that the entry of waqf be made in the Revenue record. It was his reasoning
that upon the creation of the waqf, properties stood vested in the Almighty
and the first sale was infirm. The Appeal filed by Shri Kasim Ali Khan
and Shri Raza Ali Khan came to be dismissed by the Settlement Officer.
The Revision filed by them also came to be dismissed by Order dated
B
29.01.1969. However, it would appear that an application, seeking
restoration, was filed in regard to the Order of the Deputy Director,
Consolidation. The same stood dismissed on 02.03.1972. Another
Application for Restoration, however, came to be filed. It is in the said
Restoration Application, a compromise was entered into on 13.02.1974
between the three brothers, viz., Qasim Ali Khan, Kasim Ali Khan and C
Raza Ali Khan. The compromise proceeded on the footing that the waqf
was a paper transaction. It was the further basis that the waqf was
never acted upon and further that the Bhumidars of the plots were
Qasim Ali Khan, Raza Ali Khan and Mohammad Ahmad Ali Khan (the
last being the alienee), who were entitled to one-third share each. The
D
Deputy Collector, Consolidation accepted the compromise, set aside the
Order dated 29.01.1969, an Order passed on merit, and, disposed of the
Revision on the basis of the compromise. No sanction was obtained
from the Waqf Board within the meaning of Section 49A of the Uttar
Pradesh Muslim Waqf Act, 1960 (hereinafter referred to as, ‘the 1960
Act’, for short). The Shia Waqf Board was not a party. We also notice E
that the Order dated 02.03.1972 was set aside. A sale deed came to be
executed based on the compromise on 26.09.1974 by Shri Qasim Ali
Khan, purporting to convey his one-third share in favour of his nephew,
viz., Shri Syed Mohammad Ali Khan, who was another son of Shri Raza
Ali Khan hereinafter referred to as the second sale. Shri Syed Shujat Ali
F
Khan, who was the son of Qasim Ali Khan, filed Writ Petition (C) No.
5874 of 1974 challenging Order dated 12.09.1974 passed by the Deputy
Director, Consolidation. On 01.05.1988, it would appear that Shri Qasim
Ali Khan resigned as Mutawalli. It is the case of the appellant that Shri
Sujat Ali Khan became the Mutawalli. The Writ Petition filed by Shri
Sujat Ali Khan came to be withdrawn. Thereafter, Shri Sajjad Ali Khan, G
who was another son of Shri Qasim Ali Khan and who claimed as a
beneficiary of the Wakf, filed a complaint before the U.P. Shia Waqf
Board. He called in question the transfer made of waqf property, both
by Shri Qasim Ali Khan, his father, and his uncle, viz., Shri Kasim Ali
Khan. He also sought to bring under a cloud the compromise entered
H
946 SUPREME COURT REPORTS [2023] 6 S.C.R.

A into by them before the Deputy Director, Consolidation besides the
withdrawal of Writ Petition (C) No. 5874 of 1974. The Controller of the
Waqf Board passed Order dated 16.07.1997. By the said Order, he
invoked Section 52(1) of the Act and directed the Collector to recover
and deliver possession of the disputed land from the unauthorised
occupants, viz., Shri Syed Mohamad Ahmad Ali Khan and Shri Mohamad
B
Ali Khan, who were the sons of Shri Raza Ali Khan. They are the first
respondents in the Appeals and referred to as such. It is thereupon that
the Collector passed Order dated 31.12.1997, directing the respondents
to deliver possession of the property to the Board within thirty days.
This Order came to be challenged by the first respondents in the Appeals,
C viz., the alleged unauthorised occupants before the Additional District
Judge, Bulandshahar. The said Appeals were allowed by the Additional
District Judge. The appellant filed Writ Petition (C) No. 23414 of 1998,
contending that it was the Waqf Tribunal which had the jurisdiction and
not the Additional District Judge. This contention found favour with the
High Court and it was found that the Additional District Judge did not
D
possess jurisdiction. The Order of the Additional District Judge came to
be set aside. Thereafter, the first respondent filed Appeal No. 2 of 2002
and Appeal No. 3 of 2002 before the Waqf Tribunal. By Order dated
28.03.2003, the Waqf Tribunal allowed the Appeals and the Order of the
Collector was set aside. It is the said Order, which has been confirmed
E by the High Court by passing the impugned Order, by which, the Revision
Petitions filed by the appellant, came to be dismissed.
FINDINGS OF THE WAQF TRIBUNAL
7.

F i. Under Section 52(1) of the Act, the Board was to first satisfy
in such manner as was prescribed, after making inquiry
that the property is recorded in the Waqf Register and
further that the property was alienated without any prior
permission of the Board. Thereafter, the matter is to be
sent to the Collector for recovering possession.
G
ii. After perusing the record and a true copy filed by the
appellant (the papers Nos. 42C and 53C2), it was found
that it was not mentioned in the Order that the Board had
done any inquiry.

H
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 947
OTHERS [K. M. JOSEPH, J.]

iii. The Board had not satisfied itself, after making inquiry. This A
finding was entered on the basis of there being no evidence
in the record requisitioned from the Board.
iv. A Report of a Senior Waqf Inspector found included in the
record, was considered and it was found that Senior Waqf
Inspector had not actually seen whether the property was B
recorded in the Waqf Register. The Controller had not
satisfied itself as per the prescribed procedure laid down in
Section 52(1) of the Act.
v. The procedure adopted was illegal. There was no Officer
known as Controller under the Act. The power under Section C
52(1) could be exercised by the Board. No Notification was
produced to establish that the Board transferred its power
to any Officer known as Controller. The Order passed by
the Controller was without jurisdiction.
vi. A period of seven days alone was given, which is illegal. D
vii. The possession of the respondents was clearly admitted in
the petition filed by the appellant before the Waqf Board. It
was further admitted that the respondents were using the
property for their own interest and as their own personal
property. The respondents were found to have become E
owners by way of adverse possession. There were
exceptions to Section 49A of the U.P. Act and Section 51
of the Act. Both Acts were special Acts on the subject of
Waqf. There was no absolute Rule that a property could
not be transferred as new rights could accrue to any person
on the basis of adverse possession. F
FINDINGS OF THE HIGH COURT
8.
i. There is merit in the contention of the appellant that the
compromise entered into before the Deputy Director, G
Consolidation, being a collusive one, could not defeat the
Waqf. Once a Waqf, always a Waqf.
ii. In the absence of the Waqf Board, the Order passed by the
Deputy Director, Consolidation acting on the compromise
was invalid in view of Section 69 of the 1960 U.P. Act. H
948 SUPREME COURT REPORTS [2023] 6 S.C.R.

A iii. The sale executed by Shri Qasim Ali Khan on 29.06.1974
(the second sale) was invalid for the reason also that no
permission of the Waqf Board was obtained under Section
49A of the 1960 U.P. Act. Equally, the sale executed by
Shri Kasim Ali Khan in the year 1960 (the first sale), who
was a beneficiary, who had no right to sell Waqf Property,
B
was void.
iv. Shri Syed Mohammad Ahmad Ali Khan and Shri Syed
Mohammad Ali Khan were beneficiaries in the waqf-al-al-
aulad. Rejecting the contention of the appellant that a
beneficiary could not acquire title by adverse possession
C over waqf property, it was found that title by adverse
possession could be acquired.
v. Relying upon Shri Mohammad Ismail Faruqui v. Union
of India and others1 and also The Mosque Known as
Masjid Shahid Ganj, and others v. Shiromani Gurdwaba
D Prabandhak Committee, Amritsar, and another2, it was
found that title by adverse possession could be acquired
over waqf property.
vi. A person in a fiduciary relationship or one, in whom the
property was vested in trust, could not claim title by adverse
E possession over trust property. A Mutawalli, accordingly,
on the said principle, could not claim title by adverse
possession over waqf property [See Faqir Mohd. Shah v.
Qazi Fasihuddin Ansari and others3]. That a Co-owner
also cannot acquire title by adverse possession over trust
F property, is found to be well-recognised in law.
vii. A beneficiary is not a co-owner and, therefore, the principle
that a co-owner cannot acquire a right by adverse
possession over the share of another co-owner, was not
applicable to a beneficiary. A beneficiary did not hold the
G property in trust.
viii. “In every case of Waqf, whether public or private, the
property vests in God Almighty or in the Waqf itself as an
1
AIR 1995 SC 605
2
AIR 1940 PC 116
H 3
AIR 1956 SC 713
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 949
OTHERS [K. M. JOSEPH, J.]

institution or a foundation economic, for the time being in A
force”. The High Court drew support from the aforesaid
view expressed by a Full Bench in the decision reported in
Moattar Raza and others v. Joint Director of
Consolidation, U.P. Camp at Bareilly and others4.
ix. Article 96 of the Limitation Act, 1963, provides for a period B
of twelve years for a Suit by a Manager of a Muslim
Religious or Charitable Endowment, inter alia, to recover
possession transferred by a previous Manager for valuable
consideration. The sale executed by Shri Kasim Ali Khan
(the first sale) would not come under its purview as he was
not the Mutawalli/Manager. C

x. In regard to the sale deed executed in 1974 by Shri Qasim
Ali Khan, who was noted as the Mutawalli, the Court went
into the interplay of Articles 65 and 96 of the Limitation
Act, 1963. It was found that Article 96 would not apply in
the case of a void transfer. In the case of a transfer being D
void on account of breach of a statutory requirement,
adverse possession of the transferee would commence from
the date of the transfer. If the Suit for Recovery of
Possession was not instituted within the period of twelve
years under Article 65, the rights of the Manager to recover E
the endowed property would stand extinguished under
Section 27 of the Limitation Act.
xi. The correct interpretation to be placed on Article 96 is to
confine its ambit to suits to recover possession where the
right to recover possession was not lost under Section 27 F
of the Limitation Act. In other words, it is found that Article
96 would be of avail only in regard to voidable transfers.
xii. The finding of the Tribunal that the respondents had acquired
title by adverse possession, was found correct. The
contention based on Section 66G of the Waqf Act, 1954, G
was repelled, though it provided for a period of thirty years.
This was on the basis that the said enactment was never
made applicable to Uttar Pradesh.

4
AIR 1970 Allahabad 509 H
950 SUPREME COURT REPORTS [2023] 6 S.C.R.

A xiii. Section 107 of the Act, which excludes the Limitation Act,
was found to be of little avail to the appellant. A person in
adverse possession does not claim through the Mutawalli.
The right of the respondents having ripened by adverse
possession, it could not be defeated by invoking Section
107 of the Act.
B
xiv. The view expressed by the Tribunal that the Waqf Board
was duty-bound to hold an inquiry and that such an inquiry
was not held, was found to be erroneous. The contention
of the appellant that the Waqf was registered, had not been
disputed, and it was also not disputed that there was no
C previous sanction for the sale, was found to be with merit.
xv. It was noted that in the Report of the Inspector, it is stated
that Waqf was registered as Waqf No. 1456, which recital
was not established as incorrect. It was further found that
the respondents had not set up any case that the Waqf was
D not registered in the Register of Waqfs. The Order of the
Controller, therefore, was not required, it is found, to be
quashed on the ground of no inquiry being held under Section
52. It was also found that it could not be so quashed on the
ground that there was no application of mind.
E xvi. The effect of the decision reported in Khilli Ram v. State
of Rajasthan5, was found to be that the entry in the Waqf
Register would not be open to question in an Appeal against
the Order passed by the Collector. The Appeal against the
Order of the Collector lies before the Tribunal under the
F Act. The Tribunal has wide powers and it can go into the
question. The Tribunal could go into the validity of the
Requisition Order issued by the Board. These are views
expressed in the Judgment of a learned Single Judge in the
decision reported in (Smt.) Amina Khatoon v. Third Addl.
D.J. Farukhabad and others 6. The High Court agreed
G with the said view.
xvii. The Tribunal erred in finding the notice being defective on
the ground that thirty days’ notice was not given. High Court

5
(1985) 1 SCC 28
6
H 1987 All LJ 1282
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 951
OTHERS [K. M. JOSEPH, J.]

notes the same to be a mistake and that no prejudice had A
been caused as no steps were taken for their eviction before
the expiry of thirty days.
xviii. The contention of the respondents that the Report given by
the Senior Inspector of the Waqf was an ex parte Report
and they had not been given any opportunity, was found to B
be factually correct. However, it is found that the Controller
had found the property in question was waqf property, the
Waqf was registered and, lastly, the transfer was invalid
for want of permission. It is specifically found that ‘there
appears no dispute on facts upon the point’. No prejudice,
it is found further to the respondents, especially in view of C
the full opportunity given by the Tribunal, especially when it
was not contended that the Waqf was not registered or
that the property was not waqf property or that permission
was taken before the transfer.
xix. It was, however, found that in view of the finding that the D
respondents had acquired title by adverse possession, there
was no merit in the Revision Petitions and, accordingly, they
were dismissed.
CONTENTIONS OF THE APPELLANT
E
9.
i. The learned Senior Counsel for the appellant, Shri Salman
Khurshid, contended that Article 96 of the Limitation Act
did apply. The period of limitation would commence from
1996 or from the date, when the appellant Shri Sajjad Ali F
Khan was appointed Mutawalli, as twelve years had not
run out from 01.05.1988, when Shri Qasim Ali Khan
resigned or from the date of appointment of the present
Mutawalli Shri Sajjad Ali Khan. Therefore, Shri Sayed
Mohammad Ahmad Ali Khan could not acquire title by
adverse possession. G
ii. Article 65 of the Limitation Act did not apply. The claim of
Shri Sayed Ahmad Ali Khan was based on the compromise
dated 13.02.1974. It was not founded on the sale deed dated
14.10.1960. The right under the said sale deed, if any, got
extinguished in view of there being no objection by him during H
952 SUPREME COURT REPORTS [2023] 6 S.C.R.

A the consolidation proceedings and also the decisions of the
three Consolidation Courts.
iii. As regards the claim of adverse possession of Shri Syed
Mohammad Ali Khan, it is contended that Article 65 was a
general Article and it is Article 96, which would apply.
B Appellant was appointed Mutawalli. The period would start
running, when he was so appointed or from the date of the
complaint filed by him in 1996.
iv. The High Court erred in finding that the right of the Waqf
stood extinguished by virtue of Section 27 of the Limitation
C Act. As the Suit for Possession was against the transferee
from the earlier Mutawalli, the possession would become
adverse from the date of death or the resignation of the
earlier Mutawalli under Article 134B of the earlier Limitation
Act and upon the expiry of twelve years, as provided in
Article 96, and not from the date of the sale deed.
D
v. Appellant would further contend that respondents being
beneficiaries, could not acquire title, by adverse possession,
of the waqf property.
vi. Reliance was placed on the following Judgments:
E a. Chhedi Lal Misra (Dead) Through Lrs. v. Civil
Judge, Lucknow and others 7;
b. K.S. Viswam Iyer (Dead) Through Lrs. v. State Wakf
Board, Madras8; and
c. Wali Mohammed (Dead) by Lrs. v. Rahmat Bee (Smt)
F
and others 9.
10. Shri P.S. Patwalia, learned Senior Counsel, appearing on behalf
of Respondent No.1 in the appeals makes the following submissions:
There is no valid waqf created as the waqif never acted
G upon it. He never divested himself of the property as required
under Mohammedan law pertaining to Shi a Muslims. Under the
law, it is mandatory that there must be a change in the character

7
(2007) 4 SCC 632
8
1994 Suppl. (2) SCC 109
H 9
AIR 1999 SC 1136
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 953
OTHERS [K. M. JOSEPH, J.]

of possession of property. No change in mutation records was A
made by the waqif. The property remained in the person’s name
till his demise on 16.12.1958. Thereafter the property was mutated
into the names of his three sons. Reliance is placed on the object
of the waqf dated 26.07.1934. There in it is indicated:
“The object of the Waqf reads inter alia” B
With a view of perpetuating the name of my ancestors and
with the object of benefiting my offspring and their offspring and
relatives belonging to the family and their offspring, and, in their
absence, the Shia Poor, the indigent, the miserable and Syeds-for
this purpose under Mohammedan law, in accordance with Act 6 C
of 1913, I have by a formal statement (sigha) in accordance with
the Sharia put into Waqf (trust) the following property, thereby,
excluding it from own estate, and having put into writing this deed
of Waqfu’l aulad (Trust for offspring)….”
Clause E of Waqf Deed provides inter alia: D
“E. In case, God forbid my generation exterminates
altogether and none survives there and nor my wife Pakeeza
Begum or any other wife remains alive, then in such case the
income from the endowed property which will be manage by the
members of the committee will be spent for the charitable matters E
in TAB A of the Convenience Compilation.”
11. It is further contended that all the property except a small
parcel admeasuring hundred bighas, which is the subject matter of the
present case has been sold. In fact, the waqif himself sold a portion to
one Mr. Manzoor Hasan. Almost 4272 bighas have been sold by the F
sons of Akbar Ali Khan. Neither the appellant nor the Waqf Board
objected. The Waqf Deed contemplated proceeds of the Waqf Property
being used to repay outstanding debts. It was, therefore, not a valid
waqf. The Waqf was created on 24.07.1934, at which time, the
Mussalman Waqf Validating Act, 1913 was in force. The Act did not
provide for registration of the Waqf. It was, thereafter, that the G
Mussalman Waqf Act, 1923 was enacted. Thereunder, by virtue of
Section 2(e), waqf-alal-aulad was excluded from the operation of the
1923 Act. Still further in the year 1930, the Mussalman Waqf Validating
Act, 1930 was enacted, which declared only that the 1913 Act applied to
Waqfs created before the commencement of the 1913 Act. It is thereafter
H
954 SUPREME COURT REPORTS [2023] 6 S.C.R.

A that the U.P. Muslim Waqfs Act, 1936 (hereinafter referred to as, ‘the
1936 Act’) and the 1960 Act were enacted. Neither the 1936 nor the
1960 Acts applied to the facts. Therefore, it is contended that the appellant
cannot have a case that the alleged Waqf was registered either under
the 1936 Act or the 1960 Act. The object of the Waqf relied upon is to
benefit the offspring and their offspring and in their absence to the Shia
B
poor. The 1936 Act did not apply and Waqf could not have been registered
under the 1936 Act. There is no religious or charitable purpose to the
Waqf Deed dated 26.07.1934. Reliance is placed on the decision of this
Court in Fazlul Rabbi Pradhan v. State of West Bengal and others 10.
The waqf not being registered, the summary procedure under the Act
C was not applicable. It is further complained that the appellants have
different versions in regard to the alleged registration. On the one hand,
it is contended that registration was actually done in 1934, at which time,
the 1923 Act was in force. The said Act, apart from specifically excluding
waqf-alal-aulad from its ambit did not provide for any provisions relating
to registration. It is further pointed out that during the hearing, a case is
D
set up that registration was done under the 1936 Act. In view of the
specific exclusion, by way of Section 2(2)(i), it does not apply as the
entire income was going for the benefit of the members of the family.
There is a procedure at any rate prescribed under the 1936 Act, in Section
38. The same has not been followed. The third version, it is pointed out,
E was that the waqf was registered under the 1960 Act. A Report of the
Controller, which was for the first time relied upon in this Court and
which was disbelieved by the Tribunal, cannot be the basis. Still further,
as the entire income was dedicated to the descendants of the waqif
stood excluded from the ambit of the 1960 Act, the claim was without
basis. Here again, Section 29 provided the procedure for registration.
F
The same, having not been conformed with, it could not be said that the
waqf was registered under the 1960 Act. In view of the 1960 Act not
being applicable, the bar to the compromise of the suit or proceeding
relating to waqfs, enacted in Section 69, was inapplicable. The summary
procedure for recovery of Waqf Properties mentioned in Section 45B
G was not available. No reliance could be placed on the extract of the
Register of the Waqf purporting to establish the registration of the waqf
and which was produced by Respondent No.4-Collector for the first
time in Rejoinder submissions before this Court. The date of the
Registration Certification is 08.07.2008, which was after the passing of
H 10
1965 3 SCR 307 / AIR 1965 SC 1722
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 955
OTHERS [K. M. JOSEPH, J.]

the Order by the High Court. Here again, the procedure under Section A
36 of the Act was not followed. The particulars, which are to be
mandatorily specified were missing. In the absence of a valid registration,
the summary procedure provided in Section 52 of the Act was not available
to the appellants. The appellants are estopped from challenging the
compromise of 1974, after a period of 22 years. The parties to the
B
compromise acted upon the same. The second sale took place. Appellant
being the son of the transferor stood estopped. The dismissal of the writ
petition filed by Sujad Ali Khan as not pressed, has led to Order dated
12.09.1974, becoming final. Respondents have been in continuous and
uninterrupted possession. The Limitation Act was applicable to the Waqf
properties under Mohammedan Law till the Act came into force, C
whereunder, Section 107 specifically barred the application of the
Limitation Act, 1963. Reliance is placed on the Judgment of the Privy
Council in 1940 XXI ILR 493. Also, support is drawn from the Judgment
of this Court in Dr. M. Ismail Faruqui and others v. Union of India 11.
Section 107 of the Limitation Act, 1963 was prospective in its application.
D
Our attention is drawn to the Judgment of this Court in T. Kaliamurthi
(supra). The respondents have been in possession of two-thirds of the
suit property since the first sale deed and the remaining one-third came
by their possession in 1974. Documentary evidence establishing such
possession include the following:
i. Order dated 16.07.1997 by the Controller, Waqf Board; E

ii. Sale deed dated 26.09.1974;
iii. The averments in the appeal (No.4 of 1998) filed by the
respondent before the District and Sessions Judge,
Bulandshehar; F
iv. Order dated 30.05.1998 passed by the District Judge;
v. The Waqf Appeal No. 3 of 2002;
vi. The findings of the Order of the Tribunal;
vii. The admission of the possession of the respondents by the G
appellant in the impugned Judgment and, lastly,
viii. Reliance is placed on the very List of Dates submitted by
the appellant, which indicates that the Order of the Collector
was for recovery of possession.
11
(1994) 6 SCC 360 H
956 SUPREME COURT REPORTS [2023] 6 S.C.R.

A 12. Thus, it is contended that the respondents have been in
possession of two-thirds since 1960 and remaining one-third since 1974
and the rights of the respondents emerged before the Act came into
force. Even counting from 1974 the respondents have perfected title in
the year 1986, i.e., 12 years from 1974. Thus, the Limitation Act, 1963
would indeed apply as hostile possession had led to the ripening of the
B
title before Section 107 of the Act came into force.
13. It is next pointed out that the appointment of Mutawalli did not
lead to a fresh starting point of limitation. Decision of this Court in Syed
Yousuf Yar Khan and others v. Syed Mohammed Yar Khan and
others12 is set up to counter the said case. The High Court had rightly
C applied Article 65 of the Limitation Act, 1963 in the present case. The
first respondent in the Appeals are not beneficiaries, it is next pointed
out as no valid waqf has been established. There is no evidence to suggest
that the alleged waqf was generating any income which was being
distributed amongst the beneficiaries. This meant that the three sons of
D the original Wakif were not beneficiaries and were not so treated. It is
also pointed out that there is no bar in law preventing the beneficiary of
waqf from claiming adverse possession. The bar applies only to a
Mutawalli. This is for the reason that the Mutawalli holds a fiduciary
duty towards the Waqf. It is open to the first respondent, it is lastly
pointed out, to plead both title and adverse possession simultaneously.
E Reliance was placed on M. Siddiq (Dead)Through Legal
Representatives (Ram Janmabhumi Temple Case) v. Mahant Suresh
Das and others 13 and Karnataka Board of Wakf v. Govt. of India
and others14.
SUBMISSIONS OF RESPONDENT NOS. 2 AND 4
F
14. Respondent Nos. 2 and 4 are Assistant Survey Commissioner
Waqf, Bulandshehar and the Collector, Waqf, Bulandshehar, U.P.,
respectively. The learned Senior Counsel, Shri S.R. Singh would submit
that the compromise application by the three sons of Akbar Ali Khan
without prior approval of the Board, as contemplated in the Act of 1960,
G was not maintainable in view of the requirement of Section 69 of the
1960 Act. The Order of the Deputy Director of Consolidation setting

12
(1967) 2 SCR 318
13
(2020) 1 SCC 1
H 14
(2004) 10 SCC 779
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 957
OTHERS [K. M. JOSEPH, J.]

aside the Order dated 29.01.1969 and also the Order dated 02.03.1972 A
was illegal. The Controller of the Waqf Board held inquiry on the complaint
before the Waqf Board. He found that the disputed property was Waqf
property which was registered as such in the Register of Waqfs. It was
further found that the property was illegally sold without obtaining the
sanction of the Board. Thereupon, the Controller issued the requisition
B
to the Collector to obtain possession. The High Court placed reliance on
Judgment of this Court in Thakur Mohd. Ismail v. Thakur Sabir Ali15,
that in a waqf-alal-aulad, the property stood transferred to the Almighty
but still dismissed the Revisions without considering whether title could
be acquired by adverse possession. He points out that the High Court
did not consider the question whether Articles 65 and 96 of the Limitation C
Act could be invoked against the God/Almighty. The Order passed by
the Deputy Director, Consolidation was a nullity, being bereft of sanction
under Section 69 of the 1960 Act. The result was the earlier decisions of
the Consolidation Authorities stood restored wherein it was held that the
Waqf in question was a valid Waqf. Section 49 of the U.P. Consolidation
D
of Holding Act, 1953 bars the same issue being considered by the Tribunal
which had the trappings of the Civil Court. The two sales were void ab
initio under Section 51(1) and Section 51(A) of the Act. Again, support
is drawn from the Judgment in Thakur Mohd. Ismail (supra) as also
Ahmed G.H. Ariff and others v. Commissioner of Wealth Tax,
Calcutta16. A beneficiary/Mutawalli had no right to transfer the waqf E
property. Article 65 of the Limitation Act did not apply to the proceedings
of the Act in view of Section 107 of the Limitation Act. It is further
contended that Article 65 applied to suits. It did not apply to proceedings.
Therefore, Section 27 of the Limitation Act, 1963 did not apply to the
waqf property which stood vested in Almighty. Reliance is placed on
F
Judgment of this Court in Chhedi Lal Misra (Dead) Through Lrs. v.
Civil Judge, Lucknow and others17. Paragraph-34A of the Waqf Deed,
which contemplates spending of Rs.500/- on charitable purposes and
paragraph-34E, which contemplates that in case all the descendants of
the Waqif die, then, the waqf shall be used for charitable purposes, brought
the waqf under the definition of ‘waqf’. A void document, as is the case G
with the sale deed and the compromise, would be ignored without the

15
AIR 1962 SC 1722
16
AIR 1971 SC 1691
17
(2007) 4 SCC 632 H
958 SUPREME COURT REPORTS [2023] 6 S.C.R.

A need to set aside the same. The respondent no.1 in both the Appeals
could not be said to have perfected their title by adverse possession
against the State for which the period is 30 years. The litigation started
in 1997, i.e., 23 years from the date of the collusive compromise and the
void sale deed. This argument is based on the fact that the waqf property
is managed on behalf of God by the Waqf Board which comes under the
B
superintendence of the Government under the law.
ANALYSIS
15. Going by the contentions raised and, in the facts, the following
points are noted:
C 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?

D 3. Whether the two sales, one on 14.10.1960 and the second on
26.09.1974, in favour 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
E 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?
F 7. Whether Section 107 of the Act removes the bar of limitation
at any rate?
16. The High Court in the impugned order has confirmed the
findings of the Tribunal that Respondent No.1 in both the cases have
acquired title by adverse possession. This is on the basis that the first
G sale was effected in the year 1960 and the second sale was effected in
the year 1974. The Act came into force with effect from 1.1.1996. It is
further found that the period began to run from the dates of the two sale
deeds as the sales were void. The further finding is that Article 96 of the
Limitation Act, 1963 did not apply to the first sale of the year 1960. The
H said sale was effected at a time when Qasim the eldest brother was the
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 959
OTHERS [K. M. JOSEPH, J.]

Mutawalli. The sale was effected by a person who in other words was A
not the Mutawalli. Therefore, Article 96 did not apply. As far as the
second sale is concerned, it was effected by Qasim Ali Khan on
26.09.1974 purporting to convey his one-third right to his nephew who is
the first respondent in the other appeal. The further reasoning of the
High Court is that the second sale deed was executed by the Mutawalli.
B
The court thereafter demarcated the field covered by Articles 65 and
96. The court then also took into consideration Section 27 of the Limitation
Act, 1963. The Court found the proper interpretation was that Article 96
was to be confined to suits to recover possession where the right to
recover possession had already not been lost under Section 27 of the
Limitation Act, 1963. Article 96, in other words, it was found, applied to C
voidable transfers. On the said basis, finding that the second sale
represented a case of void transfer, it was found that Article 96 did not
assist the appellant. It was also found that there is no obstacle in a
beneficiary of a Wakf perfecting title by adverse possession. Such an
obstacle, undoubtedly, existed in the case of a Mutawalli, a trustee or a
D
co-owner. A beneficiary was none of the above. Thus, proceeding on
the basis that the first respondent in both the appeals were beneficiaries
of the Wakf and as the sales under which they claimed were found to be
void, the period of limitation contemplated under Article 65 of the
Limitation Act began to run from the date of the sale. This meant that
when the Act was born on 01.01.1996, the title stood vested with the E
first respondent by adverse possession. It is further found that Section
107 of the Act under which the Limitation Act was not applicable to the
Act could not rescue the case of the appellant.
17. It is apposite that we advert to the relevant provisions of the
Limitation Act. Section 27 of the Limitation Act provides that at the F
determination of the period limited to any person for instituting a suit for
possession of any property, ‘his right’ to such property would stand
extinguished. Article 65 of the Limitation Act, 1963 reads as follows:

G

H
960 SUPREME COURT REPORTS [2023] 6 S.C.R.

A

B

C

D

E 18. Article 134B of the Indian Limitation Act, 1908 was the
predecessor provision holding the field till Article 96 supplanted it in the
year 1963. The following table sets out Article 134B of the Limitation
Act, 1908 and Article 96 of the Limitation Act, 1963:
“Description of suit Period of Time from which
limitation period begins to
run
F 134- By the manager of a Hindu, Muhammadan or Buddhist Twelve The death,
B. religious or charitable endowment to recover possession years resignation or
of immovable property comprised in the endowment removal of the
which has been transferred by a previous manager for a transferor.”
valuable consideration.

Article 96 of the Limitation Act, 1963
“Description of suit Period of Time from which period begins
G limitation to run
96. By the manager of a Hindu, Muslim or Twelve The date of death, resignation
Buddhist religious or charitable endowment years or removal of the transferor or
to recover possession of movable or the date of appointment of the
immovable property comprised in the plaintiff as manager of the
endowment which has been transferred by a endowment, whichever is
previous manager for a valuable later.”
consideration.
H ”
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 961
OTHERS [K. M. JOSEPH, J.]

19. The distinction between the two Articles have been noted by A
the judgment of this Court in T. Kaliamurthi and another v. Five Gori
Thaikkal Wakf and others18. It reads as under:
“35. ……We have carefully noted two Articles viz., Article
96 of the Limitation Act, 1963 and Article 134B of the Limitation
Act, 1908 and we find that they are different from each other B
insofar as while under the 1908 Act 12 years was to run from the
death, resignation or removal of the transferor, under the 1963
Act the said period of 12 years was to run from the date of death,
resignation or removal of the transferor, or the date of appointment
of the plaintiff as Manager of the endowment, whichever was
later.” C

20. As far as the first sale is concerned, the sale was not effected
by the Mutawalli or the Manager of the Waqf. The sale was effected by
the brother of the Mutawalli. Therefore, the High Court is correct in
finding that Article 96 will not come to the aid of the appellant.
D
21. As far as the second sale is concerned, it was no doubt,
executed by the Mutawalli by sale deed 26.09.1974. This is a sale executed
by him on the strength of the compromise which was entered into between
the three brothers on 13.02.1974. As we have noticed, the compromise
led to order dated 12.09.1974 being passed by the Deputy Director
(Consolidation) setting aside the dismissal of the revision by order dated E
20.09.1969 as also the dismissal of the first restoration application dated
02.03.1972. If the said sale is found to be valid, then obviously, the appellant
would fail. If on the other hand, the sale is void, the question would be
whether the proceeding initiated beyond 12 years from the date of the
sale would be within time. If by seeking shelter under Article 96 of the F
Limitation Act, 1963, the period of limitation is to commence from the
date of resignation of the Mutawalli then would not the period of 12
years commence from 01.05.1988 when Qasim Ali Khan, the Mutawalli
resigned? Then, the period of 12 years would expire only in the year
2000. Could it not be said that the action was not barred? It is here that
the High Court reasons that Article 96 is not meant to apply to a void G
sale. Instead, it applies to a voidable sale.
22. There cannot be any doubt that Waqf property can be the
subject matter of acquisition of title by adverse possession (see AIR
18
(2008) 9 SCC 306 H
962 SUPREME COURT REPORTS [2023] 6 S.C.R.

A 1940 PC 116). That a Mutawalli however cannot acquire rights over
waqf property by adverse possession is not open to question. (See AIR
1956 SC 713).
23. The High Court finds that Article 96 will not apply as it is a
case of a void sale and not voidable sale. The reasoning is based on the
B rationale furnished in the Judgment of the High Court of Orissa in
Chintamani Sahoo (deceased by LR.) and others v. Commissioner
of Orissa Hindu Religious Endowments, Orissa and others19. In the
said case, the Division Bench of the High Court was dealing with the
following facts:
C The Mahant of a math executed certain permanent leases.
It was without sanction of the Commissioner as contemplated in
Section 58 of the Orissa Hindu Endowments Act, 1939. Such
leases were contrary to the aforesaid provision. The Mahant came
to be later dismissed. The Executive Officer of the math appointed
by the Commissioner instituted proceeding under Section 68 of
D the said Act for recovery of possession, which was allowed. He
also instituted proceedings for recovery of possession under Section
25 of the Act. The Commissioner allowed the proceeding under
Section 25 and directed issue of a requisition to the Collector for
evicting the appellant who thereupon brought a suit for declaration
E contending that he had acquired an indefeasible right of tenancy
by uninterrupted possession and sought an injunction. We may
notice the following finding:
“8. The main question in controversy is as regards
limitation and adverse possession. The finding of fact is that
F the plaintiff was in possession of the lands from the respective
dates of the leases, namely, 26-7-1943, 8-1-1944 and 15-7-
1944. The proceeding under Section 25 of the Orissa Hindu
Religious Endowments Act, 1951 was allowed on 30-10-69
and direction was issued to the Collector for delivery of
possession. The right to evict the plaintiff would be barred by
G limitation after expiry of 12 years which comes to 1956 if the
starting point would be the dates of the respective leases. If,
however, it is held that adverse possession of the plaintiff would
start only after the dismissal of the Mahant, the right to recover

19
H AIR 1983 Orissa 205
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 963
OTHERS [K. M. JOSEPH, J.]

in 1969 would be in time. It is contended on behalf of the A
respondents that the correct Article to apply is Article 96 of
the new Limitation Act. On the other hand, it is contended on
behalf of the appellant that Article 65 of the new Limitation
Act is the governing Article. The applicability of either Art. 65
or Art. 96 would depend on whether the transfer was void ab
B
initio or only voidable.
xxx xxx xxx
10. An alienation made in contravention of a statutory provision
which is enacted in public interest is void. Admittedly the
permanent leases were granted in violation of Section 58(1) C
which prohibits grant of lease for more than five years without
prior sanction. The transfer by permanent leases is, therefore,
void. We are fortified in this view by the earlier decisions of
this Court. In the case of Naba Kishore Panda v. Bulendra,
(1974-40 Cut LT 1152), referred to above, Hon’ble S.K. Ray,
J. (as he then was) held that a permanent lease created in D
express breach of the mandatory provisions of S. 58(1) is void.
In a subsequent Single Bench decision in the case of Arjuna
Jena v. Chaitanya Thakur (1978) 45 Cut LT 461, Hon’ble
B.K. Ray, J. also held that a lease created in violation of the
provisions of Section 58(1) of the old Act is a void one. For this E
proposition, his Lordship relied on an earlier Division Bench
decision of this Court in the case of Shri Chiranjilal
Patwari v. Commr., Hindu Religious Endowments, Orissa,
Bhubaneswar (1974) 40 Cut LT 41. In another Single Bench
decision of this Court in the case of Gulam Ali Saha v. Sultan
Khan, (1966) 32 Cut LT 510 : (AIR 1967 Orissa 55), decided F
by Hon’ble G.K. Misra, J. (as he then was) the question of
validity of an alienation of wakf property without permission
of the Court came up for consideration and it was held that the
alienation, even though for consideration, was void ab initio. It
was further held, relying on the principles laid down by the G
Privy Council in Masjid Shahid Ganj v. S.G.P. Committee,
Amritsar, AIR 1940 PC 116, that Article 144 of the old Limitation
Act applies to such a case for acquisition of title by adverse
possession. In an unreported decision of this Court in Second
Appeal No. 361 of 1966 disposed of on 3rd August, 1970
H
964 SUPREME COURT REPORTS [2023] 6 S.C.R.

A (Sambari Bewa v. Orissa Board of Wakfs) Hon’ble R.N.
Misra, J. (as he then was) considered the validity of an alienation
made by a Mutwalli in violation of the provisions of Section
36-A of the Wakf Act and came to hold that a permanent lease
granted in violation of the provisions of the Wakf Act is ab
initio void (vide para. 8).”
B
6. Thereafter, the Court posed a question, as to whether it was
Article 65 or Article 96, which applied. The Court thereupon held:
“12. This Article refers to a transfer for valuable
consideration. A transfer which is void ab initio is in the eye of
C law no transfer at all and hence will not come within the scope of
this Article. This Article obviously applies to cases where the
transfer can be avoided or is voidable. But if the transfer is void
ab initio then Art. 65 of the new Limitation Act would apply. The
transferee’s possession since the date of the transfer becomes
adverse from the date of the transfer inasmuch as the transferee
D had no right in respect of the property at all and he was a mere
trespasser.
xxx xxx xxx
14. In AIR 1966 SC 859 (Srinivasa Reddiar v. N.
E Ramaswamy Reddiar), the question for decision before their
Lordships was “Does Art. 134-B permit any distinction to be made
between transfers effected by a previous manager on the basis
that the property transferred belongs to the religious endowment
and those made by him on the basis that the said property is his
own private property?” Their Lordships held that Article 134-B
F does not permit any such distinction. It was held that the character
of the representations made by the previous manager in regard to
his relation with the property which is the subject-matter of transfer
is irrelevant for the purpose of Art. 134-B. The question whether
this Article applies to void or voidable transaction did not arise for
G consideration in that case.”
(Emphasis supplied)
25. Since reference was made to AIR 1966 SC 859 and the same
was distinguished, we may advert to the said Judgment. The contention,
which was taken before this Court was that when a transfer is made by
H a Manager not as Manager but as an individual, such transfer being void
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 965
OTHERS [K. M. JOSEPH, J.]

ab initio, the possession of the transferee was adverse from the date of A
the transfer and therefore, in such a situation, Article 134B of the
Limitation Act, 1908, the predecessor Article of Article 96 of the present
Limitation Act, with the difference we have noted in the third column,
would not apply. This Court, in fact, noted that two Judgments of the
Privy Council, viz., 1900 27 Indian Appeals 69 (EC) and 37 Indian Appeals
B
147 EC, supported the said contention. In regard to the first of the cases
(27 Indian Appeals 69 EC, it is found that the Privy Council held that
where hereditary Trustees of a religious endowment sold their hereditary
right of management and transferred the endowed property, the sales
were null and void, if there was no custom providing otherwise. It was
further noted that the Privy Council was dealing with the case of Article C
124 of the Limitation Act, 1908. It was further found that what was sold
was the hereditary office as also the property, though, immovable
properties of the temple were also sold. The further reasoning was that
it was Article 144 of the old Act which operated to bar the suit after 12
years of adverse possession. The Court noted certain divergence of
D
opinions in the Calcutta High Court. It further went on to doubt whether
the first of the Judgment 27 Indian Appeals 69 (EC) could lead to the
inference that if a part of the property was transferred by the Manager
of a religious endowment, on the basis that it belonged to him, the right
of the succeeding Manager could be lost. Thereafter, the Court went on
to find that the matter must be viewed in the context of Article 134B of E
the Limitation Act, 1908. This Court found that it did not make any
difference to the application of Article 134B, if the transfer is made on
the basis that the property belonged not to the endowment but to the
Manager. All that was necessary for the successor Manager to prove
were found to be the following facts:
F
“(1) that the property belongs to the religious endowment; (2) that
it was transferred by a previous manager; and (3) that the transfer
was for a valuable consideration. The character of the
representations made by the previous manger in regard to his
relation with the property which is the subject matter of transfer,
is irrelevant for the purpose of Art. 134-B.” G

26. The High Court of Orissa in Chintamani Sahoo (Deceased
by LR.) (supra), distinguishes the aforesaid Judgment on the basis that
this Court was not considering the question whether Article 134B applied
to void or voidable transactions as it did not arise.
H
966 SUPREME COURT REPORTS [2023] 6 S.C.R.

A 27. The appellants have placed reliance on certain Judgments of
other High Courts contending that they lay down a different principle. In
Chinna Jeeyangar Mutt, Tirupath v. C.V. Purushotham and others 20,
a learned Single Judge traced the history of Articles 134A, Article 134B,
Article 134C also with reference to the Third Report of the Law
Commission of India. The said portion reads as follows:
B
“12. The Law Commission observed in its 3rd report relating to
Limitation Act, 1908 in paragraph 123 as follows:
“The starting point of limitation for suits covered by Article 134-B
is the date of death, resignation or removal of the transferor. This
C has given rise to some difficulties in certain cases. Thus, an
Endowment Commissioner may find it necessary to challenge an
alienation by one of the previous managers, after decades; or,
there may be a gap of more than 12 years between the death,
resignation or removal of one manager and the appointment of his
successor. In such cases, it would be more equitable to make the
D date of the plaintiff’s appointment as Manager the starting point
for limitation. But there may be cases and circumstances where
the existing provision may be more favourable to the institution.
To provide for both contingencies, the later of the two dates should
be taken as the starting point of limitation.”
E 28. The Court also relied on the Statement of Objects and Reasons.
It also referred to Srinivasa (supra). Still further, the Court set down
the position at law prior to amendment, as follows:
“23. From the above discussion the following position of law
emerges. A Mahant of a mutt is incompetent to create any interest
F in respect of muth property to enure beyond his lifetime. He can
alienate the property permanently only for legal necessity or benefit
to the estate. In the case of an alienation made by him, which was
not for legal necessity or benefit the said alienation becomes
voidable at the instance of his successor. The right to question the
G alienation accrues to the successor only on the alienor’s death.
The adverse possession of the alienee also begins to run only
from the date of his death and not until then. A permanent lease
of temple lands is also an alienation of this nature. If it was not for
legal necessity or benefit it is not binding on the mutt. The cause
20
H AIR 1974 AP 175
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 967
OTHERS [K. M. JOSEPH, J.]

of action which once accrues continues. The right of the mutt A
would be extinguished in regard to that property at the end of the
period prescribed by the law of limitation. Each succeeding mahant
does not get a revival of the cause of action in his favour. The
appointment of successor was never considered to give a fresh
start of limitation, under the law as it stood prior to 1963. Whether
B
it was an alienation made for legal necessity or not was a question
depending upon the facts and circumstances of each case.”
29. Thereafter, the learned Judge went on to lay bare the true
purport of Article 134B:
“24. Such was the state of law when the Limitation Act was C
amended in 1963. The legislature must be presumed to know the
existing law and the interpretation given by the courts to the law
then in force. If the right to question a voidable alienation in respect
of a Hindu or Muhammadan religious or charitable endowment is
denied to a mutt or religious institution, such an institution looses
the properties once for all. As the State was interested in protecting D
and safeguarding the properties of such institutions, it brought about
an amendment to achieve that purpose in 1963. The Law
Commission, which was appointed to go into that question
suggested that in the case of Hindu, Muslim and Buddhist religious
or charitable endowments, a fresh start or a terminus quo should E
be given for actions brought by the succeeding Mahant to set
aside such alienations, which were not made for legal necessity
or benefit of the institution. The Legislature also accepted that
view and inserted in column 3 to Article 96, which previously had
only the following words: “the death, resignation or removal of
the transferor” the following words: “or the date of appointment F
of the plaintiff as manager of the endowment, whichever is later”.
It is obvious from the plain words of the amendment that the
legislature had in view such alienations about which a right to
institute suits has already become barred and therefore it wanted
to provide a fresh period of limitation in regard to them. The G
Legislature was also aware of the fact that according to the law
as laid down by decisions prior to 1963, the date of appointment
of the plaintiff as manager by an endowment did not give him
fresh start of limitation for that purpose. It was only to remedy
the obvious difficulties felt in the interpretation of such law that
H
968 SUPREME COURT REPORTS [2023] 6 S.C.R.

A this amendment has been brought about. By virtue of this
amendment, if the plaintiff had been appointed within 12 years
from the date of the filing of the suit, he can question any alienation,
which was not made for legal necessity or benefit to a mutt by a
previous manager. The fact that 12 years have elapsed from the
date of death, resignation or removal of the transferor manager
B
would not stand in the way of the plaintiff in such a suit from
recovering the property. That is clear from the last three words in
the amendment ‘whichever is later’, purposely introduced by the
Legislature. In view of this amendment the courts have got to
apply the plain words of the Statute to any action brought by any
C manager of a Hindu, Muslim or Buddhist religious or charitable
endowment, to recover possession of the movable or immovable
property of an endowment which was the subject of an alienation
by a previous manager for valuable consideration. It is also clear
that the transferor manager need not be the immediate predecessor
of the plaintiff, that files such a suit. From a reading of Article 96,
D
such a conclusion cannot be arrived at. It is enough if the alienation
was made by a previous manager. The first column does not say
that it should be by the previous manager.”
30. In the State Wakf Board, Madras, superseded by the
Government of Tamil Nadu in G.O.Ms. No. 2031, dated 20th November,
E 1961 and appointed by G.O.Ms. No. 2264, dated 30th December, 1967,
The Special Officer for Wakfs Madras v. Subramanyam and others21,
the learned Judge was, inter alia, dealing with the following facts:
The suits were filed for recovery of properties alleged to
belong to the waqf, which were dismissed on the ground of
F limitation. The Court drew upon the later part of the third column
of Article 96 and found that the suit was within time. In the said
case, in fact, the Waqf Board was the plaintiff. The Single Judge
found that the Waqf Board was constituted only in the year 1953.
The suits were instituted in 1967. In assigning the role of the
G Manager to the Board within the meaning of ‘manager appointed’
in the third column of Article 96, also, the Court drew support
from the Judgment of learned Single Judge in Chinna Jeeyangar
Mutt (supra). We may notice the following reasoning:

21
H AIR 1977 Madras 79
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 969
OTHERS [K. M. JOSEPH, J.]

“6. The argument of the learned counsel now is that only when A
the Wakf Board assumes direct management of the wakf, it can
be said to be a manager as contemplated by the third column in
Art. 96 of the new Act and that so long as there is no assumption
of direct management, the Wakf Board cannot be said to be a
manager. I am unable to accept this argument, from one point of
B
view. Neither S. 42 nor S. 43-A of the Wakfs Act on which reliance
has been placed uses the word, “Manager”. The word, “Manager”
in relation to a religious or charitable endowment is not a term of
art. The said word denotes the person who is in charge of the
administration of the endowment or manages the property or
supervises the performance of the charity and the word is one of C
very wide and general import. As a matter of fact, the judgment
of Natarajan J., has referred to the provisions contained in S.
15(2) of the Wakfs Act. S. 15(1) of the Wakfs Act provides that
subject to any rules that may be made under the said Act, the
general superintendence of all Wakfs in a State shall vest in the
D
Board established for the State; and it shall be the duty of the
Board so to exercise its powers under the Act as to ensure that
the Wakfs under its superintendence are properly maintained,
controlled and administered and the income thereof is duly applied
to the objects and for the purposes for which such Wakfs were
created or intended. Sub-S. (2) or S. 15, without prejudice to the E
generality of the powers conferred by Sub-S (1) by way of
illustration, enumerates certain specified power also. One such
specified power so enumerated is contained in S. 15(2)(h), which
enables the Wakf Board to take measures for the recovery of lost
properties of any Wakf. S. 15(2)(i) also enables the Wakf Board
F
to institute and defend suits and proceedings in a court of law
relating to Wakfs The combined effect of S. 15(1) and 15(2) of
the Wakfs Act will certainly be sufficient to designate the Wakf
Board as a manager for the purpose of recovery of possession of
Wakf property and consequently it can certainly be termed as
“Manager” contemplated by the third column to Art. 96 of the G
new Limitation Act and if so construed, the constitution of the
Wakf Board under the statute can certainly be construed to be
the appointment of the Wakf Board as Manager of the Wakf in
question, because even the word, “appointment” just like the word,
“Manager” is not a term of art and therefore has to receive its
ordinary, natural and normal meaning.” H
970 SUPREME COURT REPORTS [2023] 6 S.C.R.

A 31. Before we finally pronounce on the question as to whether
Article 96 would apply in respect of a void transaction, we deem it
appropriate to deal with certain other aspects. The waqf in question is
the creation of Akbar Ali Khan on 26.07.1934. It is the case of the
appellant that it was registered as waqf al aulad at No. 1476. The
transferor of the second sale deed, viz., Qasim Ali Khan took over as
B
the Mutawalli when Akbar Ali Khan, his father, died on 16.02.1958. It is
not in dispute that Qasim Ali Khan instituted OS 1 of 1950 wherein he
impleaded his father Akbar Ali Khan and the transferee of a part of the
waqf property which was effected by his father. The Decree of the
Trial Court in favour of the plaintiff was affirmed by the High Court by
C Judgment dated 11.07.1962. The Judgment affirmed the view of the
Trial Court that there was a valid waqf. It is categorically found by the
High Court that all the legal requirements in respect of the creation of
the waqf by a Shia under the Mohammedan law had been made out. It
was held that Akbar Ali Khan did create a waqf-alal-aulad on 26.07.1934
which was effective in law. Therefore, as between the waqif who was
D
the first Mutawalli also, and between his son, Qasim Ali Khan, the findings
in the Judgment of the High Court clearly holds that there was a valid
waqf. After the death of Akbar Ali Khan, his son Qasim Ali Khan took
over as Mutawalli. He instituted OS 421 of 1959. Therein, his brothers
were the defendants, viz., Kasim Ali Khan and Raza Ali Khan. It was
E the act of the defendants getting their names mutated in the Revenue
Records, which occasioned the said suit. It is during the pendency of the
suit, i.e., on 14.10.1960, one of the defendants Kazim Ali Khan transferred
his alleged, one-third right in favour of the first respondent in one of the
Appeals before us. The suit was decreed. The High Court in the Appeal
filed by the defendants, remanded the matter back by Order dated
F
25.09.1963. However, while it was so, consolidation proceedings
commenced under the U.P. Consolidation of Proceedings Act, 1953.
Under the provisions of the said Act, the proceedings in the suit would
abate when consolidation commences. Thereafter, it is the Consolidation
Officer, whose decision is appealable to the Settlement Officer and which
G latter Authority’s decision can be revised in a Revision by the Deputy
Director, who hold sway. The plaintiff in the suit, viz., Qasim Ali Khan,
accordingly, placed his objections against the name of his brothers being
entered. The objections of Qasim Ali Khan were found to be with merit.
Resultantly, the names of the brothers were directed to be removed and
their place, the name of the waqf was directed to be entered. The brothers
H
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 971
OTHERS [K. M. JOSEPH, J.]

of Qasim Ali Khan unsuccessfully appealed before the Settlement A
Officer. A Revision carried by them before the Deputy Director proved
equally unsuccessful as it was dismissed by Order dated 29.01.1969.
The Order was passed on merit. It reads, inter alia:
“3. That I find that Wakf is admitted between the parties. The
disputed land was sir. It after the execution of wakf, the sir should B
have been converted into ex-proprieto tenancy. It could have been
inferred that the rights of ex-proprieto tenancy which ultimately
converted at sirdari right after the date of vesting, did not belong
to the wakf and then there was justification for continuances of
the applicants a successors of their father. But, the position is
otherwise, when the father of the parties created at wakf, the C
disputed land which was sir, was not converted into expropriatory
tenancy and was recorded bhundhary after the date of vesting. It
has therefore, to be concluded that absolute rights in the land
were transferred to the almighty and the proper course, therefore,
was to record the opp. Party as Mutwalli and expunge the names D
of the applicants. In the litigation in regular courts, the civil court
had also held the same view but the matter could not become
final in these courts. On account of advent of consolidation. In
these circumstances, I come to conclusion that the orders of the
Lower Courts are sound and deserves no interference.”
E
32. The defendants, viz., Kasim Ali Khan and Raza Ali Khan filed
a Restoration Application which came to be dismissed by Order dated
02.03.1972. Yet another Restoration Application was filed. It is in the
same that a compromise was entered into between Qasim Ali Khan,
Kasim Ali Khan and Raza Ali Khan, all the three brothers, on 13.02.1974.
They purported to disown the waqf. They proclaimed that it had not F
taken effect. It was based on this compromise that the second Restoration
Application was allowed. The earlier orders rejecting the Revision and
the Restoration being dismissed, were set aside by the Deputy Director.
The compromise dated 13.02.1974 formed the basis for the same. It is
acting on the said compromise and the Order passed thereon that Qasim G
Ali Khan purported to convey his one-third share to his nephew by sale
deed dated 12.09.1974.
33. The 1960 Act was in force. Section 69 of the Act provided as
follows:
H
972 SUPREME COURT REPORTS [2023] 6 S.C.R.

A “69. Bar to compromise of suits by or against mutawallis. –
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.”
B 34. Also, Sections 49A and 49B of the said Act read as follows:
“49A Transfer of immovable property of waqf- Notwithstanding
anything contained in the deed or instrument, if any, by which the
waqf has been created, no transfer by way of-

C (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.”
D 49-B. Recovery of waqf property transferred in contravention of
Section 49-A.—(1) If the Board is satisfied after making an
inquiry in such manner as may be prescribed that any immovable
property entered as property of a waqf in the register of waqfs
maintained under Section 30, has been transferred without the
previous sanction of the Board in contravention of the provisions
E
of Section 49-A, 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.
(2) On receipt of a requisition under sub-section (1), the Collector
shall pass an order directing the person in possession of the property
F
to deliver the property to the Board Within a period of thirty days
from the date of the service of the order.
(3) Every order passed under sub-section (2) shall be served—
(a) by giving or tendering it or by sending it by post to the person
G for whom it is intended; or
(b) if such person cannot be found, by affixing it on some
conspicuous part of his last known place of “bode or business, or
by giving or tendering it to some adult male member or servant of
his family or by causing it to be affixed on some conspicuous Part
H of the property to which it relates:
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 973
OTHERS [K. M. JOSEPH, J.]

Provided that where the person on whom the order is to be served A
is a minor, service upon his guardian or upon any adult member or
servant of his family shall be deemed to be service upon the minor.
(4) Any person aggrieved by an order of the Collector under sub-
section (2) may, within a period of thirty days from the date of the
service of the order, prefer an appeal to the Court of the District B
Judge within whose jurisdiction the property is situate.
(5) The District Judge may either dispose of the appeal himself or
may transfer it to the Court of any Additional District Judge or
Civil Judge under his administrative control and may also withdraw
any such appeal and either dispose of the same or transfer it to C
any other Court of Additional District Judge or Civil Judge under
his administrative control, and in every case the decision of the
court shall be final.
(6) Where an order passed under sub-section (2) has not been
complied with and the time for appealing against such order has D
expired without any appeal having been preferred or the appeal,
if any, preferred within that time has been dismissed, the Collector
shall obtain possession of the property in respect of which the
order has been made, using such force as may be necessary, for
the purpose, and then deliver it to the Board.
E
(7) In exercising his functions under this section the Collector
shall be guided by such rules as may be made in that behalf by the
State Government.”
35. Sections 49A and 49B were inserted in the 1960 Act by way
of U.P. Act 28 of 1971. Therefore, the sale deed dated 26.09.1974 by F
Qasim Ali Khan in favour of his nephew, being in the teeth of the
prohibition against a sale without the previous sanction of the Board,
was illegal. It is this narrative which gives rise to the question as to
whether the sale is void as it was in transgression of a statutory mandate.
If it is void for such a reason, would it pave the way for the beginning
and the running of the period of adverse possession by the transferee. G
Would it not open the doors for applying Article 65 of the Limitation
Act? Would it not then, equally, invite Section 27 of the Limitation Act to
its doorstep? Resultantly, on the expiry of 12 years from 13.09.1974,
would the title set up by the appellant, be extinguished? If that is so,
would not the complaint filed in the year 1997, after the Act came into
H
974 SUPREME COURT REPORTS [2023] 6 S.C.R.

A force on 01.01.1996, leading to invoking the power under Section 52 of
the Act, be impermissible?
36. Section 52 of the Act, which is the fountainhead of the action
by the Controller of the Waqf Board and the Collector, is a sequel to
Section 51. Section 51(1), inter alia, before its substitution by Act 27 of
B 2013, read as follows:
“51(1) 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:
C Provided that no mosque, dargah or khangah shall be gifted, sold,
exchanged or mortgaged except in accordance with any law for
the time being in force.”
37. We may only notice that Section 51(1)(a) as substituted by
Act 27 of 2013, subject to the provisos declares a sale, gift, exchange or
D mortgage or transfer of waqf property to be ab initio void. Section 52 of
the Act provides that if the Board is satisfied, after making any inquiry,
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 previous sanction of the Board in contravention of
E Sections 51 or 56 of the Act, it may send a requisition to the Collector of
the place within which the property is situated to obtain and deliver
possession. The Collector is bound to pass an order directing the person
in possession to deliver the property to the Board within 30 days from
the receipt of the Order. It is under this provision that the impugned
Orders came to be passed.
F
38. It will be noticed that the Act came into effect on 01.01.1996.
Section 52 empowers the Board to send a requisition to the Collector, if
property has been transferred without the previous sanction of the Board
in contravention of Section 51, inter alia. We have noticed that Section
51 has provided that any sale of property, which is waqf property, without
G the previous sanction of the Board, would be void. The two sales in this
case took place prior to 01.01.1996. The first sale is dated 14.10.1960
whereas the second sale is dated 13.09.1974.
39. Section 112 of the Act provides for repeal and sales. It reads
as follows:
H
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 975
OTHERS [K. M. JOSEPH, J.]

“112. Repeal and savings. —(1) The Wakf Act, 1954 (29 of 1954) A
and the Wakf (Amendment) Act, 1984 (69 of 1984) are hereby
repealed.
(2) Notwithstanding such repeal, anything done or any action taken
under the said Acts shall be deemed to have been done or taken
under the corresponding provisions of this Act. B
(3) If, immediately before the commencement of this Act, in any
State, there is in force in that State, any law which corresponds to
this Act that corresponding law shall stand repealed:
Provided that such repeal shall not affect the previous operation
of that corresponding law, and subject thereto, anything done or C
any action taken in the exercise of any power conferred by or
under the corresponding law shall be deemed to have been done
or taken in the exercise of the powers conferred by or under this
Act as if this Act was in force on the day on which such things
were done or action was taken.” D
40. Section 49B of the 1960 Act is pari materia with Section 52 of
the Act. In other words, it provided that the Board may, if a transfer is
made contravening Section 49A of the 1960 Act, send requisition to the
Collector for recovery of possession. Section 49A of the 1960 Act also
provided on similar terms as provided in Section 51(1) of the Act that for E
a sale of property comprised in a waqf, previous sanction of the Board
was necessary. As far as Sections 49A and 49B came to be inserted by
Act 28 of 1971 and the second sale took place in 1974, which is after the
insertion of Sections 49A and 49B in the 1960 Act, therefore, the power,
indeed, vested with the Board to take action for recovery of possession
under Section 49B. Under Section 112(3) of the Act, we proceed on the F
basis that the 1960 Act would stand repealed. However, the proviso
declares that the repeal would not affect the previous operation of the
corresponding law. The corresponding law, in this case is Section 49A
read with Section 49B. Action taken in the exercise of the power
thereunder, is to be deemed as taken in the exercise of powers under the G
Act. The powers under the Act must be treated as flowing from Section
52 of the Act. For the said purpose, the proviso to Section 112(3) provides
that the provisions in the Act, which in this case would be Section 52,
must be treated as being on the Statute Book.

H
976 SUPREME COURT REPORTS [2023] 6 S.C.R.

A 41. But then could it be said that no action has been taken under
Section 49B of the 1960 Act with regard to the transfers in question and,
therefore, Section 112(3) of the Act, may have no application? We
proceed on the basis that, the power exists as for reasons to follow, the
appellants will fail on surer foundation.
B 42. A contention has been raised that the waqf-alal-aulad in
question cannot be treated as a waqf under the Act. It is the case of the
first respondent that the Mussalman Waqf Validating Act, 1913 did not
provide for registration of the waqf. Though the Mussalman Waqf Act,
1923 was enacted, waqf-alal-aulad was excluded from its operation.
Neither the 1936 Act nor the 1960 Act applies and the appellant cannot
C claim that the waqf was registered under either enactment. There is no
religious or charitable purpose. In view of the specific exclusion in the
1936 Act, it is contended that the Act did not apply to the waqf as the
entire income was to go for the benefit of the members of the family of
the waqif.
D 43. The waqf in question is created by Akbar Ali Khan by deed
dated 26.07.1934. It is, no doubt, a waqf-alal-aulad. A waqf-alal-aulad is
a waqf under Mohammaden Law. It was the Privy Council which in the
case of Abdul Fatah Mohammad Ishak v. Russomy Dhar
Chaoudhary22 held that if the charity is illusory or so small, it could not
E be treated as a waqf. This Judgment led to the passing of the Mussalman
Waqf Validating Act, 1913. Sections 3 and 4 of the said enactment reads
as follows:
“3. It shall be lawful for any person professing the Musalman
faith to create Wakf which in all other respects is in according
F with the provisions of Musalman Law, for the following among
other purposes: -
(a) For the maintenance and support wholly or partially of his
family, children or descendants and
(b) where the person creating a Wakf is a Hanafi Musalman, also
G for his own maintenance and support during his life-time or for
the payment of his debts out of the rents and profits of the property
dedicated.

22
H 22 Indian Appeals 76
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 977
OTHERS [K. M. JOSEPH, J.]

Provided that the ultimate benefit is in such cases expressly A
or impliedly reserved for the poor or for any other purpose
recognized by the Musalman Law as a religion, pious or charitable
purpose of a permanent character.
4. No such Wakf shall be deemed to be invalid merely
because the benefit reserved therein for the poor or other religious, B
pious or charitable purposes of a permanent nature is postponed
until after the extinction of the family, children or descendants of
the person creating the Wakf.”
44. Thereafter, the Mussalman Wakf Act, 1923 came to be passed.
It applied to the whole of British India. The definition of Wakf contained C
in Section 2(e) was as follows:
“2(e) ‘Wakf’ means the permanent dedication by a person
professing the Musalman faith of any property for any purpose
recognized by the Musalman Law as religious, pious or charitable,
but does not include any Wakf, such as is described in S.3 of the D
Musalman Wakf Validation Act, 1913, under which any benefit is
for the time being claimable for himself by the person by whom
the Wakf was created or by any of his family or descendants.”
(Emphasis Supplied)
45. Section 3 of the 1923 Act obliged the Mutawalli to furnish E
statement containing certain particulars to the competent Court. Notice
of the Statement was to be published under Section 4. The 1923 Act
provided for audit of accounts and the provision for expense which could
be incurred by the Mutawalli came to be inserted. Section 10 provided
for penalty. Certain waqfs were excluded from its purview under Section F
12. In the United Provinces, which meant the United Provinces of Agra
and Awadh, the 1936 Act, came to be enacted. Section 2 thereof read as
follows:
“2(1) Save as herein otherwise specifically stated, this Act shall
apply to all Wakfs, whether created before or after this Act comes
G
into force, any part of the property of which is situate in the United
Provinces.
(2) This Act shall not apply to:-
(i) a Wakf created by a deed, if any, under the terms of which not
less than 75 per cent of the total income after deduction of land H
978 SUPREME COURT REPORTS [2023] 6 S.C.R.

A revenue and cesses payable to Government of the property
covered by the deed of Wakf, if any, is for the time being payable
for the benefit of the Wakif or his descendants or any member of
his family:
(ii) a Wakf created solely for either of the following purposes:
B (a) The maintenance and support of any person other than the
Wakf or his descendants or any member of his family,
(b) The celebration of religious ceremonies connected with the
death anniversaries of the Wakif or of any member of his family
or any of his anscestors;
C
(c) The maintenance of private imambaras, tombs, and grave-
yards, or
(d) The maintenance and support of the Wakif or for payment of
his debts, when the Wakif is a Hanafi Musalman; and
D (iii) the Wakfs mentioned in the schedule.
Provided that if the Mutawalli of a Wakf to which this Act
does not apply wrongfully sells or mortgages, or suffers to be sold
in execution of a decree against himself, or otherwise destroys
the whole or any part of the Wakf property, the Central Board
E may apply all or any of the provisions of this Act to such Wakf for
such time as it may think necessary.
Explanation-A Wakf which is originally exempt from the operation
of this Act may, for any reason subsequently, become subject to
such operation, for example, by reason of a higher percentage of
F its income becoming available under the terms of the deed for
public charities.”
(Emphasis supplied)
46. Section 3(1) of the 1936 Act, defined ‘Wakf’ as follows:

G “3(1) ‘Wakf’ means the permanent dedication or grant of any
property for any purposes recognized by the Musalman law or
usage as religious, pious or charitable and, where no deed of Wakf
is traceable, includes Wakf by user, and a Wakif means any person
who makes such dedication or grant.”
47. Section 38 (1) of the 1936 Act, read as follows:
H
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 979
OTHERS [K. M. JOSEPH, J.]

“38(1) Every Wakf whether subject to this Act or not and whether A
created before or after the commencement of this Act shall be
registered at the office of the Central Board of the sect to which
the Wakf belongs.
(Emphasis Supplied)
48. It is, no doubt, true that in Fazlul Rabbi Pradhan (supra), in B
the context of the question whether the waqfs were affected by the
passing of the West Bengal Estates Acquisition Act, 1953, and, in that,
the waqf in question fell within the definition of the words ‘charitable
purpose’ and ‘religious purpose’, the Court held, inter alia, as follows:
“13. These cases led to agitation in India and the Mussalman C
Wakf Validating Act 1913 (6 of 1913) was passed. It declared the
rights of Mussulmans to make settlements of property by way of
wakf in favour of their families, children and descendants. For
the purposes of the Validating Act the term “wakf” was defined
to mean “the permanent dedication by a person professing the D
Mussalman faith of any property for any purpose recognized by
the Mussalman law as religious, pious or charitable”. This gave a
wider meaning to the word wakf but only for the purpose of taking
them out of the invalidity which would have otherwise existed
and which was already authoritatively stated to have so existed.
E
14. After the passage of these two Acts wakfs, in which
the object was the aggrandisement of families of wakifs without
a pretence of charity in the ordinary sense, became valid and
operative. But the intention of the Validating Act was not to give
a new meaning to the word “charity” which in common parlance
is a word denoting a giving to someone in necessitous F
circumstances and in law a giving for public good. A private gift
to one’s own self or kith and kin may be meritorious and pious but
is not a charity in the legal sense and the courts in India have
never regarded such gifts as for religious or charitable purposes
even under the Mahomedan law. It was ruled in Syed Mohiuddin G
Ahmed v. Sofia Khatun [44 CWN 974] that neither the Wakf
Validating Act 1913 nor the Shariat Act 1937 had the effect of
abrogating the Privy Council decisions on the meaning of “charitable
purpose” as such.”

H
980 SUPREME COURT REPORTS [2023] 6 S.C.R.

A 49. No doubt, the Court was dealing with a case of a waqf-alal-
aulad. The Judgment must essentially be viewed in the context of the
definition of ‘religious and charitable purpose’ provided in the Act in
question.
50. The Wakf in question is dated 26.07.1934. The 1936 Act applied
B to Wakfs created before or after the commencement of the Act.
However, Section 2(2) declares that the Act shall not apply to certain
waqfs. They included a waqf whereunder not less than 75 per cent of
the total income, after deduction of certain sums, was for the time being
payable for the benefit of the waqif or his descendants. However, Section
38(1) of the 1936 Act made it clear that every waqf, whether subject to
C the Act or not and whether created or after the commencement of the
1936 Act, shall be registered. Proceeding on the basis that the waqf
dated 16.07.1934 was waqf-alal-aulad and which, in terms of Section
2(2)(i), was not subject to the provisions of the 1936 Act, it was
compulsorily registerable in view of Section 38(1). Any waqf which is
D registered under the 1936 Act would also be deemed to be registered
under the 1960 Act. That is, though the 1936 Act did not apply to certain
wakfs, but when it comes to registration under Section 38, it was
mandatory for every wakf to be registered (i) whether subject to the
Act and ii) whether created before the Act or not. Thus, the registration
of the Wakf dated 16.07.1934, was in fact compulsory under Section 38
E of the 1936 Act.
51. It has been contended by Shri P.S. Patwalia, learned Senior
Counsel that there was really no waqf as known in law and the waqf in
question contemplated only disbursement of the entire income for the
benefit of the descendants of the waqif. Quite apart from the fact that
F the question engaged the attention of the Civil Court, including the High
Court, in the first round of litigation, wherein, it was found that there was
a valid waqf from the standpoint of the Shia law and the Consolidation
Authorities also found that there was a waqf till the Deputy Director,
Consolidation revisited the matter only on the basis of the compromise
G between the brothers, the terms of the waqf did contemplate a certain
sum being set apart for charitable purposes as correctly pointed out by
Shri S.R. Singh, learned Senior Counsel for respondents 2 and 4. In this
regard, we notice the stipulation in the deed that a sum of Rs. 500/- will
be spent on charitable purpose such as Muazzin and lighting in the mosque
and emambara, majlallse ashra of the sacred month of Moharram. No
H
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 981
OTHERS [K. M. JOSEPH, J.]

doubt, there is the residuary clause, which reveals that the wakif has A
provided that if descendants cease to exist, the income from the endowed
property will be managed by a Committee to be spent for charitable
purposes.
52. A Division Bench of the High Court of Allahabad in the case
of U.P. Sunni Central Board of Waqf and Another v. Hasan Jehan B
Begum and Another23 had to deal with an argument that in a case of
waqf-alal-aulad, having regard to the definition of the word ‘waqf’ in
Section 3(11) of the 1960 Act, whether the entire properties were
dedicated for religious, pious or charitable purpose, as contemplated in
Section 3(11), defining the word ‘waqf’ or only to the limited extent, i.e.,
to the extent of the income which was earmarked for such purposes. C
We may note in this regard, the following discussion:
“5… With great respect, we are unable to find ourselves in
agreement with the view taken by the learned single Judge as to
us it appears that the extent of property cannot be determined on
the basis of the income. It is the dedication which has to be seen, D
if the entire property is dedicated for two purposes, namely, for
secular purposes and for religious, pious or charitable purposes,
then the entire property will be deemed to be dedicated for both
purposes. Unless it is possible to determine the extent to which
the property has been dedicated for religious, pious and charitable E
purposes, the entire property will have to be deemed to be dedicated
to God and subject-matter of the Waqf. For excluding the property
it should either be known or be determinable from the deed of
waqf that a particular property or part thereof is not dedicated.
Learned counsel for the petitioners-respondents contended that it
is the income that is the criterion for determining the extent of F
dedication. But, we find that it is not the income which is
contemplated by the definition of waqf but the property. The
relevant words are ‘to the extent to which the property is
dedicated’. The income arises out of property and it can vary
from time to time. It may be larger than the amount fixed for the G
religious, pious or charitable purposes or may be less than that. It
is also not possible to allocate property relative to the amount or
to say that this amount of money must come from a particular
portion or property out of the lot or from a particular proportion of
23
AIR 1977 All 18 H
982 SUPREME COURT REPORTS [2023] 6 S.C.R.

A that property. The entire property, which is the subject-matter of
the waqf, is liable for meeting the purposes religious, pious or
charitable. If the entire property, which is the subject-matter of
the waqf, is liable for meeting the expenses, it cannot be said that
the waqf or dedication is only to the extent of some undeterminable
and unascertainable property out of the total property, which is
B
the subject-matter of the Waqf. In our opinion, unless it is possible
to determine the extent of the property out of the property which
is the subject-matter of the waqf-alal-aulad meant for religious,
pious or charitable purposes, the entire property will be the subject-
matter of the waqf within the meaning of the Waqfs Act. The
C question of determining the extent can practically arise only in a
case in which there are a number of properties and some of them
are earmarked for purposes recognised as religious, pious or
charitable and others earmarked for the benefit of the waqif or
his descendants. It may also arise in a case where a share in a
property or a part of a property has been earmarked for the two
D
purposes. In the present case neither of the two waqfs contain
such a direction. The entire property has been dedicated for the
purposes recognised as religious, pious and charitable. It may also
be possible to say that the property, which has been dedicated for
purposes religious, pious or charitable, is the entire extent of the
E property. The entire properties under the deeds will, therefore, be
deemed to be waqf within the meaning of Section 3(11) of the
Waqfs Act.”
53. We would think that the aforesaid view represents the correct
approach and the extent of the income, which is set apart for the purpose,
F be it religious, pious or charitable, in the facts, cannot detract from the
dedication of the whole property.
54. Another contention taken is that vast extents of wakf property
had been alienated by the sons of the original wakif and only about 100
bighas which constitute the subject matter of the appeals before us
G remained. We are of the view that the argument is beside the point. The
fact that the property of the waqf has been dealt with in a manner,
which is illegal, or that it was not questioned, cannot deflect us from
either finding that there was a valid waqf or that the property which
remained of the waqf, must be dealt with in accordance with law. The
compromise before the Deputy Director (Consolidation) and the order
H
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 983
OTHERS [K. M. JOSEPH, J.]

based on the same are in the teeth of Section 69 of the 1960 Act, therefore, A
the orders passed by the Consolidated Officer and Settlement Officer
about the Waqf would revive.
55. Two questions remain. The first question, which we must
consider is, whether a beneficiary of a waqf can succeed on the strength
of the plea of adverse possession in regard to the property of the waqf. B
The High Court has proceeded on the basis that a Mutawalli may not be
able to acquire title by adverse possession. Equally, a trustee and a co-
owner stand precluded in this regard, it is noted. A beneficiary of a
waqf, however, being neither a trustee nor a co-owner of waqf property,
can acquire title through adverse possession even if it is the property of
the waqf it is found. C

56. A beneficiary of a waqf cannot be described as a stranger to
the waqf. No doubt, a beneficiary is not to be conflated in his position
with a Mutawalli. The Mutawalli is a manager of the waqf. The property
of the waqf, we must remind ourselves, in law vests in the Almighty.
The Mutawalli acts merely as the manager. For the purposes of Section D
10 of the Limitation Act, no doubt, he is treated as a trustee. A plea of
adverse possession undoubtedly requires the requisite intention, viz.,
animus possidendi. This is besides actual possession for the required
period. Does the beneficiary occupy a fiduciary capacity qua the waqf
property, which would prevent him from advancing a claim of adverse E
possession? What in the context do the words ‘fiduciary capacity’ convey?
A beneficiary would be entitled to receive benefits in terms of the waqf
deed. Does he have any obligation in regard to the waqf property? Is
there a duty in other words which he must perform by virtue of the fact
that he is constituted a beneficiary under the waqf? Is the assertion of
hostile title, an indispensable requirement to constitute adverse possession F
irreconcilable and incompatible with the position of the beneficiary? In
the case of adverse possession, since a requirement is that the possession
must be hostile to the real owner and since the real owner is the Almighty,
the requirement would be that such a person must has the necessary
animus to hold contrary to the title of God. In the case of a co-owner G
while mere assertion of title in himself may hardly suffice as the
possession of a co-owner is taken to be possession on behalf of all co-
owners a case of ouster being successfully established would entitle the
co-owner to succeed.

H
984 SUPREME COURT REPORTS [2023] 6 S.C.R.

A 57. We may notice the following statement from Mulla on
“Principles of Mohammadan Law” (22nd Edition):
“207. Power of mutawalli to sell or mortgage. A mutawalli has no
power, without the permission of the Court, to mortgage, sell or
exchange waqf property or any part thereof, unless he is expressly
B empowered by the deed of waqf to do so.”
58. The learned Author thereafter refers to Section 51(1) of the
Act under which a sale could no doubt be effected after obtaining prior
sanction of the Board. The change brought about by the Amending Act
of 2013 by the insertion of sub-section (1A) in Section 51 of the Act by
C which a sale inter alia has been declared void is also noticed. The embargo
against sale unless it is expressly authorised by the waqf deed is dealt
with under the caption “Unauthorised alienation and limitation” and it
reads as follows:
“the law as regards the period of limitation for a suit to follow
D waqf property in the hands of a mutawalli and to set aside
unauthorized transfers of such property, and to recover possession
thereof from the transferee, was amended and altered by Act 1
of 1929. The amendments consist of an addition of para 2 to s. 10
of the original Act (Limitation Act, 1908), and of the insertion of
new articles, being Arts. 48B, 134A, 134B and 134C.”
E
59. We have already noticed the purport of Article 134B of the
Limitation Act, 1908 and the change brought about in the successor
provision, namely, Article 96 of the Limitation Act, 1963.
60. In Anisur Rahman and others v. Sheikh Abul Hayat24, a
F Division Bench of the High Court had occasion to deal with the very
question which we are confronted with. The Court went on to hold as
follows:
“7. In Mukherjea’s well known book on Hindu Law of Religious
and Charitable Trust, 2nd edition, at page 274, the said Calcutta
decision was referred to and it was further pointed out at page
G
282 that limitation in case of an unauthorised alienation would
start as soon as possession vested with regard to any property. To
quote his own words at page 282:

24
H AIR 1965 Patna 390
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 985
OTHERS [K. M. JOSEPH, J.]

“The correct principle deducible from these cases is that the A
possession of the alienee would become adverse as soon as
he is without any title to the property. If the transfer is void ab
initio, the possession of the transferee is adverse from the date
of the transfer. If, on the other hand, it is not void, but voidable
merely at the instance of the succeeding manager, the
B
possession cannot be adverse until the office of the transferring
manager ceases.”
8. In other words, the applicability of either Article 144 or Article
134B of the Limitation Act would depend on whether the transfer
was void ab initio or only voidable at the instance of the succeeding
manager. C

9. A transfer which is void ab initio is in the eye of law no transfer
at all and hence will not come within the scope of Article 134B.
Moreover, that Article refers to transfer made by a manager of
an endowment. If a person transfers property treating it as his
own private property, it is difficult to hold that merely because he D
happens to be the manager of the endowment on the date of the
transfer and the property is the properly of the endowment such
transfer should come within the scope of that Article. Mr. Hussain
for the appellants could not cite any decision after AIR 1946 Cal
473 in support of his extreme contention to the effect that the E
principle laid down in that decision his no application in respect of
void transfers made after the coming into force of the amendment
of 1929. On the other hand, a Division Bench of the Orissa High
Court in Govinda Jiew Thakur v. Surendra Jena, AIR 1961
Orissa 102 applied the principle; of that decision and held that
transfers void ab initio are outside the scope of Article 134B; a F
transferee in such a case is a mere trespasser and his title will be
perfected by the twelve years adverse possession. With respect I
am inclined to agree with this view. There is also a Madras decision
in V. Rajaram v. Ramanujam Iyengar, AIR 1963 Mad 213
paragraphs 4 and 5 to the same effect.” G
61. Therefore, the principle, which emerges, is this. In order that
a suit may fall under Article 96, there must be a transfer by a Manager
which would include a Mutawalli of a waqf. It must be for valuable
consideration. In order that there is a transfer, it must not be still born. It
should not be a void transaction. This is for the reason that a void H
986 SUPREME COURT REPORTS [2023] 6 S.C.R.

A transaction would not amount to a transfer. An unauthorized alienation
as understood in Mulla (supra), which we have referred to, viz., a transfer,
which was made by a Mutawalli, for which, there was no authority in
the waqf deed, would constitute a transfer to which Article 134B and
Article 96 would have applied. With the advent of the laws relating to
Waqfs which included the 1960 Act in Uttar Pradesh, the Mutawalli
B
was obliged to obtain the previous sanction of the concerned Board. In
cases where a transfer is made under the 1960 Act without previous
sanction of the Board, the transfer would be void. This is for the reason
that the requirement of previous sanction is a statutory command
conceived with a definite and sublime purpose and the transgression of
C which can only result in a void transaction. There is no provision which
enables the validating of such a sale. In fact, the stand of respondents 2
and 4 is that, the transfers were void. Therefore, the authorities have
also proceeded on the basis that the transaction was void and we can
therefore proceed on the said foundation.
D 62. Proceeding on the basis that the sale executed in 1974 was a
void transaction we are inclined to approve of the view taken by
Chintamani Sahoo (Deceased by LR.) (supra) and Anisur Rahman
(supra), which we have referred to and hold that Article 96 of the
Limitation Act, 1963 cannot be invoked in the case of a void transaction.
The impugned Order, proceeding on the said premise, cannot be said to
E be flawed.
63. We are of the view that there cannot be any embargo against
a beneficiary of a waqf claiming acquisition of title by adverse possession.
Section 2(k) of the Waqf Act, 1955, reads as under:

F “2(k) “person interested in a waqf means any person who
is entitled to receive any pecuniary or other benefits from the
waqf and includes-
(i) Any person who has a right to offer prayer or to perform
any religious rite in a mosque, idgah, imambara, dargah,
G khanqah, peerkhana and karbala, maqbara, graveyard or
any other religious institution connected with the waqf or to
participate in any religious or charitable institution under
the waqf;
(ii) The waqf and any descendant of the waqf and the
mutawalli;
H
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 987
OTHERS [K. M. JOSEPH, J.]

64. While he may be a person who can be treated as “interested” A
in a waqf within the meaning of Section 2(k) both by reason of the fact
that he is a recipient of pecuniary or other benefit and also he may be a
descendant of the wakif, it is a far cry from describing him as a Trustee.
The beneficiary may have benefits coming his way in terms of the waqf
deed. He may be clothed with rights in this regard.
B
65. Can it be said that a beneficiary of a waqf is a fiduciary or
that there is a fiduciary relationship and, therefore, he cannot acquire
title to the property of the waqf by adverse possession? The term
‘fiduciary’, as such, has not been defined, so is the case with the ‘fiduciary
relationship’. In fact, Section 88 of the Indian Trusts Act, 1882, inter
alia, provides that a person standing in a fiduciary character and bound C
to protect the interest of another, cannot by using such character, obtain
an advantage and resist making over the benefit to the person, whose
interest he was bound to protect. In Central Board of Secondary
Education and another v. Aditya Bandopadhyay and others 25, though
in the context of Right to Information Act, 2005, the question arose D
whether an Examining Body holds the evaluated answer books in a
fiduciary relationship within the meaning of Section 8(1)(e) of the Right
to Information Act, 2005. In the course of the Judgment, this Court, inter
alia, held as follows:
“38. The terms “fiduciary” and “fiduciary relationship” refer E
to different capacities and relationship, involving a common duty
or obligation.
38.1.Black’s Law Dictionary (7th Edn., p. 640) defines
“fiduciary relationship” thus:
“Fiduciary relationship.—A relationship in which one F
person is under a duty to act for the benefit of the other on matters
within the scope of the relationship. Fiduciary relationships—such
as trustee-beneficiary, guardian-ward, agent-principal, and
attorney-client—require the highest duty of care. Fiduciary
relationships usually arise in one of four situations: (1) when one G
person places trust in the faithful integrity of another, who as a
result gains superiority or influence over the first, (2) when one
person assumes control and responsibility over another, (3) when
one person has a duty to act for or give advice to another on
25
(2011) 8 SCC 497 H
988 SUPREME COURT REPORTS [2023] 6 S.C.R.

A matters falling within the scope of the relationship, or (4) when
there is a specific relationship that has traditionally been recognised
as involving fiduciary duties, as with a lawyer and a client or a
stockbroker and a customer.”
xxx xxx xxx
B 39. The term “fiduciary” refers to a person having a duty
to act for the benefit of another, showing good faith and candour,
where such other person reposes trust and special confidence in
the person owing or discharging the duty. The term “fiduciary
relationship” is used to describe a situation or transaction where
C one person (beneficiary) places complete confidence in another
person (fiduciary) in regard to his affairs, business or transaction(s).
The term also refers to a person who holds a thing in trust for
another (beneficiary). The fiduciary is expected to act in
confidence and for the benefit and advantage of the beneficiary,
and use good faith and fairness in dealing with the beneficiary or
D the things belonging to the beneficiary. If the beneficiary has
entrusted anything to the fiduciary, to hold the thing in trust or to
execute certain acts in regard to or with reference to the entrusted
thing, the fiduciary has to act in confidence and is expected not to
disclose the thing or information to any third party.
E 40. There are also certain relationships where both the
parties have to act in a fiduciary capacity treating the other as the
beneficiary. Examples of these are: a partner vis-à-vis another
partner and an employer vis-à-vis employee. An employee who
comes into possession of business or trade secrets or confidential
F information relating to the employer in the course of his
employment, is expected to act as a fiduciary and cannot disclose
it to others. Similarly, if on the request of the employer or official
superior or the head of a department, an employee furnishes his
personal details and information, to be retained in confidence, the
employer, the official superior or departmental head is expected
G to hold such personal information in confidence as a fiduciary, to
be made use of or disclosed only if the employee’s conduct or
acts are found to be prejudicial to the employer.”
66. A fiduciary can, therefore, be taken to be a person who becomes
charged with the duty to protect the interest of another. Fiduciary
H relationship is founded upon the reposing of confidence by one in another.
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 989
OTHERS [K. M. JOSEPH, J.]

The beneficiary of a waqf is endowed with rights in terms of the waqf A
deed. We are unable to cull out any duty, as such, to protect the interest
of another. No doubt, it could be said that as the property in a waqf,
vests in the Almighty, there must be a concern and, undoubtedly, a moral
duty to act in a manner that the object of the wakf is fostered. But a
beneficiary is not like a Trustee, who assumes possession in his character
B
as a Trustee, coming under the restraint of discarding his character as
Trustee and donning the robes of an encroacher or a person asserting
hostile title. Section 14 of the Indian Trusts Act, reads as follows:
“14. Trustee not set up title adverse to beneficiary-The trustee
must not for himself or another set up or aid any title to the trust
property adverse to the interest of the beneficiary.” C

67. It is not, as if, the beneficiary was in possession of the property
in any capacity prior to the sale.
68. In fact, in this case, we may notice that in the second sale, the
former Mutawalli, viz., Qasim Ali Khan, entered into the sale deed on D
the strength of a compromise and the order of the Deputy Director,
Consolidation, under which, he purported to act as one possessed of
one-third right in his own right. We bear in mind that no doubt it would
have mattered little to the applicability of Article 96 that the transferor
purported to transfer waqf property professing it to be his property having
regard to what this Court has laid down in Srinivasa (supra). But this is E
a case where the voidness arises on account of the fact that what is
found to be waqf property has been purported to be alienated contrary
to the peremptory statutory mandate. We have also noticed Section 69
of the 1960 Act and its impact.
69. The argument that Section 107 of the Act will assist the F
appellant in tiding over the bar of limitation does not appeal to us. Section
107 of the Act, no doubt, proclaims that nothing in the Limitation Act,1963
shall apply to any suit for possession of the immovable property comprised
in any waqf or for possession of any interest in such property.
70. The Act came into force on 01.01.1996. The first sale was G
effected on 14.10.1960. The second sale was effected on 26.09.1974.
As far as the first sale is concerned, we have already found that Article
96 cannot be pressed into service as the transfer was not purported to
be made by the Mutawalli. The doors stood open for the application of
Article 65. As far as the second sale is concerned which was effected
H
990 SUPREME COURT REPORTS [2023] 6 S.C.R.

A in the year 1974 in view of our finding that Article 96 was not applicable,
the only other competing Article vying for acceptance, appears to be
Article 65. Applying Article 65 and as the adverse possession would
kick in from the date of the transfer, on the expiry of twelve years, i.e.,
in 1986 applying Section 27 of the Limitation Act whatever title remained
within the meaning of Section 65 would stand extinguished. The Act
B
was brought into force only with effect from 01.01.1996. We cannot
understand the purport of Section 107 to be that it would revive an
extinguished title as nothing stood in the way of running of time from the
date of the second sale under the law as it stood.
71. No doubt, the law of limitation is what prevails as on the date
C of the suit (see C. Beepathumma and others v. Velasari
Shankaranarayana Kadambolithaya and others26). Taking 1997 as
the date, on which a suit is filed, and applying the Act, which enables the
plaintiff to disregard the bar of law of limitation, it cannot mean that
what stood extinguished under the earlier law would revive. In this regard,
D we notice the Judgment of this Court in T. Kaliamurthi (supra):
“40. In this background, let us now see whether this section
has any retrospective effect. It is well settled that no statute shall
be construed to have a retrospective operation until its language
is such that would require such conclusion. The exception to this
E rule is enactments dealing with procedure. This would mean that
the law of limitation, being a procedural law, is retrospective in
operation in the sense that it will also apply to proceedings pending
at the time of the enactment as also to proceedings commenced
thereafter, notwithstanding that the cause of action may have
arisen before the new provisions came into force. However, it
F must be noted that there is an important exception to this rule
also. Where the right of suit is barred under the law of limitation
in force before the new provision came into operation and a vested
right has accrued to another, the new provision cannot revive the
barred right or take away the accrued vested right.”
G 72. A contention is taken that the Court is not dealing with a suit
and the matter arises from a proceeding under Section 52 of the Act. It
is contended that in regard to Section 52 the bar of limitation for a suit is
inapplicable. We have noticed that the debate in the High Court essentially

26
H AIR 1965 SC 241
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND 991
OTHERS [K. M. JOSEPH, J.]

centered around the question whether Article 96 would apply and applying A
the same, the appellant could get around the impact of Article 65 read
with Section 27 of the Act. We have found that Article 96 has no
application. Even in regard to a proceeding under the Act be it Section
52 if as on the date the action is taken, the title in the property stood
vested with the person in possession by virtue of Section 27 of the
B
Limitation Act then it may not be permissible to ignore the right which
had been acquired. The decision in T. Kaliamurthi (supra) would apply
in the facts and the action is barred.
73. The upshot of the above discussion is that the Appeals are to
be found without merit and will stand dismissed. Parties to bear their
respective costs. C

Nidhi Jain Appeals dismissed.
(Assisted by : Tamana, LCRA)

D

E

F

G

H