Holding

A house built under a Wakf permission for religious purposes becomes an accretion to the Wakf property, and a mutawalli cannot acquire title by adverse possession; the earlier suit’s findings are res judicata, and Section 10 of the Limitation Act removes any limitation bar, so the plaintiff’s claim for possession is upheld.

Summary

The appellant, Wali Mohammed Khan (by legal representatives), claimed possession of a house built in a graveyard that was originally permitted for conducting Fateha and providing tobacco to Fakirs. The permission created a public Wakf, making the house an accretion to the Wakf property and placing the appellant and his father in the position of mutawallis, who cannot acquire title by adverse possession. The Supreme Court held that the findings of the earlier 1963 suit, which declared the property a Wakf and the house a Musafir Khana, operate as res judicata, precluding the respondent from relying on his gift deed or adverse possession claim. Section 10 of the Limitation Act, 1963, applies because the respondent is a donee and not a transferee for valuable consideration, removing any limitation bar. Consequently, the decree of the trial court granting possession to the appellant was restored.

Issues considered

The nature of the permission granted for constructing the house and whether it created a Wakf.
Whether the house is an accretion to Wakf property and thus cannot be owned by the respondent.
Whether the respondent can acquire title by adverse possession as a mutawalli or as a donee.
The effect of the earlier suit’s findings on the present suit – res judicata or constructive res judicata.
The applicability of Section 10 of the Limitation Act, 1963 to a donee of Wakf property.

Legislation cited

Subjects

WakfAdverse possessionRes judicataConstructive res judicataLimitation ActSection 10MutawalliReligious endowmentMuslim lawPublic trust

Judgment

A WALi MOHAMMED KHAN (DEAD) BY LRS.
v.
RAHMAT BEE AND ORS.

FEBRUARY 23, 1999

B [M. JAGANNADHA RAO AND M.B. SHAH, JJ.]

Muslim Law :

Wakf-Wakf property-Comprised of graveyard and tombs-R's father
C was pennitted to construct a house in the graveyard for the purpose of
conducting Fateha at the tombs in the compound and to provide the Fakirs
who gathered there with hucca tobacco-Pem1issio11 deed conferred similar
1ights, and imposed similar obligations, on R's progeny-Held: Such pennis-
sio11 created a Wakf of a public nature in the house so constructed-There[ore,
R's father and R were in the position of mutawallis and cannot peifect title
D to the said hous:_ by adverse possession.

Wakf-,--()bjects of-Directions issued for performing Fateha at
graveyard and to use the house pennitted to be constructed there for that
purpose-Held : Such directions are valid objects of a Wakf.
E
Wakf-Wakf property-Adverse title tc;-Setting up of-By mutawal-
li--Held : A mutawalli is prohibited from setting up an adverse title to the
Wakf property unlike a stranger-Limitation Act, 1963, Arts. 64 and 65.

Wakf-Wakf property-Accretion to-Clzaracter of-Wakf property
F comprised of graveyard and tombs-House constructed in graveyard for
religious purposes-Held : Such house became an accretion to the Wakf
property and, there[ore, bore the same character as the other prope1ties in that
compound.

Wakf-Wakf property-Comprised of graveyard and tombs-Suit for
G possession-From donee of deemed trnstees-R's father was pennitted to
constrnct a house in the graveyard for conducting Fateha in the tombs and
for providing hucca tobacco to the Fakirs who gathered there-Subsequently,
R's father gifted the house to R-Mutawalli of the graveyard and tombs filed
a suit against R for possession of the house-Period of limitation-Ap-
H plicability of-Held, R's father is deemed trustee of the Wakf property and R
852
WALIMOHAMMEDv. RAHMATBEE 853
is a donee and not a transferee for valuable consideration-Hence, no period A
of limitation is applicable to such a suit-Limitation Act, 1963, S. IO Expln.

Code of Civil Procedure, 1908 : Section I J.

Res judicata-Earlier suit-Fi11dings in-Operate as Res judicata-R
filed a suit against W for declaration of his right to manage and possess the B
graveyard and Dargah-Trial coun dismissed the suit by holding that the suit
" ' propeny was Wakf propeny, that the graveyard, Dargah and a house co11-
structed 011 the suit property were under the management of W and that the
house was bei11g use as a musafirkha11a-Appeals filed by R were dis-
missed-Subsequently, Was mutawalli and person-in-charge of the same suit
property filed a suit against R for possession-Held: Under these circumstan-
c
ces, findings of trial cowt in the earlier suit operate as res judicata in the
subsequent suit-Hence, in the subsequent suit R ca11not be pennitted to prove
his title to the said house on the basis of the gift deed registered before filing
of the earlier suit.
D
Constructive res judicata-Adverse possession-Plea of-Not raised in
earlier suit-Held : Such a plea cannot be raised as a defence in subsequent
suit since it b01red by constructive res judicata.

Constitution of India, 1950 :
E
Panie:r-Supreme cowt-Power to implead suo motu a 11ew pa1ty-Ap-
peal-A1isi11g of-From suit filed by mutawalli to recover possession of Wakf
property--Held : Supreme Cowt, in exercise of its power under An. 136, can
suo moto implead State wakf Board as an appellant, so as to safeguard the
interests of the Wakf property. F

Judgment-lnte1pretation of-Contextual interpretati01r-Rule of-Trial
cowt in its judgment used the word 'proprietor' for the plaintiff-l'laintiff
sought to derive benefit from this word-Held From a reading of the entire
paragraph of the trial coun's judgment, the word 'proprietor' cannot be G
divorced from the context to mean that the property in question is the
plaintiff's personal property.

Wordf and Phrases :

"Prop1ietor"-Meaning of H
854 SUPREME COURT REPORTS [1999) 1 S.C.R.

A The respondent's father was permitted to construct a house in the
graveyard for the purpose of conducting Fateha at the tombs in the
compound arid to provide the Fakirs who gathered there, with hucca
·--
tobacco. A permission deed conferred similar rights, and imposed similar
obligations, on the respondent's father's progeny. Subsequently, the
respondent's father gifted the said house to the respondent by a registered
B gift deed.
>
The respondent filed a suit in 1963 against the appellant for decla- •
ration of his right to manage and possess the graveyard and Dargah. The
trial court dismissed the sui. by holding that the suit property was Wakf
c property, that the graveyard, Dargah and the house constructed on the suit
property were under the management of the appellant and that the house
was being used as a musafirkhana. However, the trial court used the word
'proprietor' for the respondent. The appeals filed by the respondent were
dismissed.

D Subsequently in 1976 the appellant filed a suit as mutawalli and ..-
person-in-charge of the suit property for possession. The respondent
sought to prove his title to the said house constructed by his father on the
basis of the gift deed registered before filing of the earlier suit. The
respondent also raised a plea of adverse possession in his defence. The
E trial court decreed the suit. However, the first appellant court and the High
Court dismissed the suit on the ground that the respondent acquired title
to the suit property by 11dverse possession. Hence this appeal.

On behalf of the appellant it was contended that the findings of the
High Court that the respondent had acquired title to the suit property by
F adverse possession was not correct in law; that the findings in the earlier -1
suit operated as res judicata in the subsequent suit, that the house con-
structed by. the respondent's father was only an accretion to the wakf
property and was being used as a musafirkhana, that in the earlier suit
there was a finding that the respondent was only in management of the
suit property including the house, which foreclosed any plea of adverse
G
possession,,, and that the respondent not being a transferee for valuable
consideration but only a donee from his father, possession could be

~
recovered under Explanation to S. 10 of the Limitation Act, 1963.

On behalf of the respondent it was contended that in view of the gift
H deed the suit property was the respondent's own property and, therefore,
WAL! MOHAMMEDv. RAHMATBEE 855
,,~
the respondent's adverse possession commenced from the date of the A
earlier suit i.e. 27.7.1963 and the suit filed the appellant on 4.2.1976 after
a laps.e of more than 12 years was bared by limitation, and that the
respondent should be given the benefit of the word 'proprietor' used for
him in the earlier suit.

Allowing the appeal, this Court B
i
.... HELD : 1. The permission granted to the respondent's father for
construction of a house created a Wakf of a public nature in the house so
constructed. Therefore, the respondent's father and the respondent were
in the position of mutawallis and could not have perfected title to the suit
property by adverse possession. The directions for performing 'Fateha' at
c
the graveyard and to use the house permitted to be constructed there for
that purpose are valid objects of a Wald'. [867-D]

Mutu Ramanadan Chetiyar v. Vave Levvai Marakayar, 41 IA 21 PC;
+ Mu/la's Mohammedan Law, 19th Edn., Paras 178 and 202, referred to. D
--!
2. The house constructed in the graveyard was meant to be used for
religious purposes and, therefore, it became an accretion to the Wakf
property and bore the same character as the other properties in the
compound. [862-F]
E
Mohammed Shah v. Fasiuddin, AIR (1956) SC 713, relied on.

3. In view of Explanation to Section 10 of the Limitation Act, 1963 the
respondent's father who was managing the property must be 'deemed' to be
a trustee in whom the properties vested specifically and inasmuch as the
r- respondent was a donee and was not a transferee for valuable considera-
F
->
tion, Section 10 applies and possession could be recovered from the defen-
dant without any limitation as to time. A mutawalli is prohibited from
setting up an adverse title to the Wakf property unlike a stranger. [869-E]

Gadadhar v. Official Trustee, AIR (1940) PC 45; Mohammed Shah v. G
Fasiuddin, AIR (1956) SC 713, relied on.

Gushiddaswami v. DMD Jain Sabha, AIR (1953) SC 514, held inap-
plicable.

Vidya Varuthi v. Baluswami, AIR (1922) PC 123 and Abdur Rahiman H
856 SUPREME COURT REPORTS (1999] 1 S.C.R.
~.··~
A v. Narayan Das, (1922) 50 IA 84, referred to.
Mulla's Mohammedan Law, 19th Edn., para 217, referred to.

4. The parties are the same in both the suits and the property is also
the same. Hence, the findings given by the trial court in the earlier suit
B operate as res judicata in the subsequent suit. Hence, in the subsequent suit
the respondent cannot be permitted to prove his title to the house property >
on the basis of the gift deed registered before the filing of the earlier suit
Moreover, inasmuch as the respondent had not set up any plea of adverse
possession in the earlier suit, he cannot raise such a plea in the subsequent
suit since it is barred by constructive res judicata. [860-D; 861-B]
c
5. It is true that the trial court stated in the earlier suit that the
respondent in his evidence used the word 'proprietor'. But it is obvious
from a reading of the entire paragraph that the word 'proprietor' has to be
read along with the rest of the respondent's evidence in that extract and
D cannot be divorced from the context. Viewed in the context in which these
-+
words occur it is clear that the respondent admitted that the house
belonged to his family but was to be used for religious purposes. The word
'proprietor' and the claim as ancestral in the earlier suit were meant by
the defendant to mean that the present plaintiff and the Wakf Board had
no right of management and that these properties were meant to be the
E properties of the respondent and of his family for being used for the
aforesaid religious purposes. Thus the use of the word 'proprietor' cannot
be of any help to the respondent-defendant : [866-A-C]

6. This Court, in exercise of its power under Article 136 of the Con-
stitution, suo moto impleaded the State Walk Board as an appellant, so as
F to safeg-.mrd the interest of the Wakf property. [866-F] -f

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 159 of
1990.

From the Judgment and Order dated 2.8.82 of the Andhra Pradesh
G
High Court in S.A. No. 575 of 1979 ..

A. Subba Rao and K. Subba Rao for the Appellants.

D. Rama Krishna Reddy and Ms. D. Bharathi Reddy for the Respon-
H dent No. 1.
WALIMOHAMMEDv. RAHMATBEE[M.JAGANNADHARAO,J.) 857

Guntur Prabhakar (NP) for the Respondent No. 4. A
The Judgment of the Court was delivered by

M. JAGANNADHA RAO, J. This is an appeal by the plaintiff in the
suit - O.S. No. 938 of 1976 on the file of the First Assistant Judge, City
Civil Court, Secunderabad. The appellant filed the suit as Mutawalli and B.
person Incharge of the suit property, for possession. The suit was decreed
by the trial court by Judgment dated 13.10.1977. The respondent-defendant
filed appeal AS. No. 83 of 1978 and the same was allowed on 17.3.1979 by
the Additional Chief Judge (cum Special Judge S.P.E.,) City Civil Court,
Hyderabad and the suit was dismissed the plaintiff then filed Second C
Appeal No. 575 of 1979 in the High Court and it was dismissed on 2.8.1982.
Against that Judgment, the plaintiff has filed this appeal by special leave.
Pending this appeal, plaintiffs legal representatives have been brought on
record. We are, however, suo moto impleading the AP. Wakf Board as an
appellant in exercise of our power under Article 136 of the Constitution of D
+
India, so as to safeguard the interests of the W akf property.

The main point urged by the learned counsel for the appellant-
plaintiff is that the finding of the lower appellate court and the High Court
that the respondent-defendant acquired title by adverse possession to the
suit property is not correct in law. E

The suit property is an extent of 300 sq. yards in Secunderabad
containing various premises and buildings thereon, located within the
grave-yard and Darga described in the plaint schedule as 'Syed Khaja Peer
Darga'. The suit property is claimed by the Wakf Board through the F
plaintiff as Mutawalli.

We shall initially refer to the earlier litigation between the parties
and to the findings therein. Earlier, Rahiman Khan, the respondent herein
filed O.S. No. 193 on the file of the First- Assistant Judge, City Civil Court,
Secunderabad against the appellant, Wali Mohammed claiming to be in G
possession and claiming that his father late Yakub Khan had constructed
a house in the suit property a few years before 1938. He sued for
declaration of "his right to manage and possess the gave yard and darga
and to restrain the defendant therein (present plaintiff) from cutting
branches of certain trees". That suit was filed on 27.7.1963. It was dismissed H
r
858 SUPREME COURT REPORTS [1999] 1 S.C.R.

A by the Trial Court on 27.2.1965. Therein the Trial Court referred to the + -r-
evidence of PW-1, a clerk from the Wakf Board, to the effect that the
Darga related to one Syed Peer Ali, who died 15 years earlier and the said
Syed Peer Ali was buried there, that the mosque adjoins the grave yard
which contains the tombs and Darga, that the 'Grave yard and mosque are
public property and that the Wakf Board manages the grave yard and
B mosque as trustee'. The said witness produced Ex. B-1 therein being the
)-
book of Endowments which showed that this mosque and grave yard were
entered in that book. It appears that the counsel for the respondent •
(Plaintiff in that suit) conceded that the 'suit grave yard and Darga are a
wakf by user'.
c
Adverting to the plea of title to the property set up by the respon-
dent, the Court held that there was absolutely no evidence on behalf of the
respondent that the suit property was either his own or he had any right
in the grave yard or the Darga. The Court held, on the other hand that the
present plaintiff (defendant therein) was the person performing the Urs at
D the Darga and managing the grave yard and the house therein and that the +
house was being used as a Musafir Khana. There was a further finding that
the respondent's father was only a Chowkidar appointed by the Mosque
Committee. The suit was accordingly dismissed by the Trial Court by
Judgme!1t dated 27.2.1965. Against the said Judgment, the respondent
E herein (plaintiff in that suit) appealed in A.S. No. 32 of 1965 before the
Chief Judge, City Civil Court, Hyderabad and the appeal was dismissed on
22.1.1968. Thereafter, the Second Appeal No. 684 of 1968 was also dis-
missed by the High Court on 24.4.1970. Thus, in all the three Courts, the
respondent was unsuccessful in the earlier suit.

F The present suit has been filed on 4.2.1976 by Wali Mohd., the -f
.....
defendant in the earlier suit, for possession. He is the appellant in this Civil
Appeal. The defendant raised the same pleas he had raised in the suit filed
by him in 1963. The courts below went into the question as to whether the
fmdings in the earlier suit operated as res judicata. The Trial Court and
G the first appellate Court held that the said findings operated as res judicata.
However, while the Trial Court decreed the present suit, the lower appel-
late court allowed the appeal and dismissed the appellant's suit. It observed ,.....
J,
that the respondent, as PW-4 in the earlier suit had stated that his father
Yakub Khan gifted the house property to him by registered gift deed
H marked in present suit as Ex. Bl dated 4.7.1938, that his ancestors were in
WALIMOHAMMEDv. RAHMATBEE[M.JAGANNADHARAO,J.] 859

possession for 200 years and that the respondent paid property tax as per A
Ex. B3 to Bl9. The appellate Court then. referred to the evidence of
another witness, PW-2 in the earlier suit to the effect that the respondent's
father got the property from his ancestors and that the Wakf Board was
never in possession. It referred to the admission of the appellant as PW 1
that the Wakf Board was never in possession of the suit property and that B
the respondent's father was residing in the suit house for the last 40 years,
that the respondent was paying taxes and that after the death of the
respondent's father, respondent continued to be in possession. The appel-
late court therefore held that there was no doubt that the defendant al;}d
his father were in possession of the house continuously for over 40 years
and that respondent's father constructed the house before 1938 as per Ex. c
B2, inspite of objection by 'the present plaintiff and that they must be
treated to be in adverse possession for more than 12 years. The appellate
court observed as follows :

"But when he filed the suit OS No. 193/63 ............ claiming title in D
himself to the suit property, it must be deemed that he has
asserted title to the property adverse to the Wakf on and from .the
date of filing the suit."

After holding that the respondent and his father had perfected title E
to the suit property by adverse possession, the appellate Court allowed
the appeal by Judgment dated 17.3.79 and the suit was dismissed. The said
Judgment was confirmed in Second Appeal No. 575 of 1979 on 2.8.82 by
the High Court. The plaintiff has now preferred the present appeal.

In this appeal, learned counsel for the appellant Sri A. Subba Rao F
contended that the findings in the earlier suit as found by the lower
appellate Court were that the suit property including grave yard and Darga
and house were Wakf property, that the suit house was being used as
Musafir Khana and hence the entire property was Wakf property. These
findings were res judicata. Even in the earlier suit, the respondent merely G
contended in the plaint of 1963 that he and his fore-fathers were "managing
the Durga as well as grave yard" and on that basis sought injunction
restraining the present appellant from cutting the trees and that the defen-
dant claimed only to be a manager and there could, therefore, be no
adverse possession. Learned counsel also contended that the house con- H
860 SUPREME COURT REPORTS [1999] 1 S.C.R.
~ -r
A structed by respondent's father sometime before 1938 was only an accre-
tion to the Wakf property and was being used as Musafir khana. In the
earlier suit, there was a further finding that the present plaintiff was in
management of the property including.the house property and this finding
would foreclose any plea of adverse possession by the defendant. Assuming
that respondent's father and the defendant were in management of all these
B
properties, they could not set up adverse title. In any event, the respondent J-
being not a transferee for consideration but only a donee from his father, •
possession could be recovered from the respondent because Section 10 of
the Indian Limitation Act, 1963, removes the bar of limitation to sue a
•
person who is a transferee without consideration.
c
On the other hand, learned counsel for the respondent Sri D.
Ramakrishna Reddy vehemently contended that the earlier Judgments did
not operate as res judicata, that the Judgment in the earlier suit showed
that the respondent, as plaintiff therein, claimed that the property was
D ancestral property and he was "proprietor" of the same. At may rate, in +
view of Ex. B-1 gift deed 1938 in his favour from his father the house, ·~

property was his own property. therefore his adverse possession com-
menced from the date of the plaint filed by him in the earlier suit, i.e.
27.7.1963 and present suit by the appellant for possession having been filed
E on 4.2.1976 after lapse of more than 12 years, was barred by time and was
rightly dismissed by the lower appellate Court and the High Court.

On these submissions of the learned counsel, the following points
arise for consideration :

F (1) Do the findings in the earlier suit O.S. No. 193 of 1963 filed by
-1
-4.
the respondent-defendant, operate as res-judicata in the present suit
against the defendant, under Section 11 of the Code of Civil Procedure,
1908?

G (2) Whether the plaintiff has proved title to the suit property includ-
ing the house?

...
,-
(3) Whether the respondent-defendant has perfected title by adverse
possession to the suit property or ' at any rate to the house property
H obtained by him under the gift deed of 1938 from his father?
WALI MOHAMMED v. RAHMAT BEE [M. JAGANNADHA RAO, J.) 861

-.,.
-;,. Point I: A
On the question of res judicata, it will be noticed that the Trial Court
in the present suit accepted the appellants' contention that the earlier
findings operate as res judicata. The parties are the same in the present
suit and in the earlier suit OS No. 193 of 1963. The property is also the
same. Even the lower appellate Court which reversed the Trial Court and B
~
accepted the plea of adverse possession, has affirmed that the findings in
the earlier suit operate as res judicata under Section 11 of the Code of Civil
• Procedure, 1908. We shall refer to the certain important findings given by
the trial Court in the earlier suit.

It was conceded before the Trial Court that the entire property was
c
Wakf property. The Trial Court recorded the said concession as follows :

"Mr. K.R.K. Iyengar, the learned counsel for the plaintiff had
admitted across the bar that the suit grave yard together (with)
Darga are Wakf by user" .. D
..;
-. The Court gave a further finding as follows :

"There can be no doubt that the suit grave yard together with the
Darga adjoining the Regimental Bazar mosque, constitute Wakf
property." E
It was nextly held that the grave yard, Darga and house were under the
management of the present plaintiff. The fmding in para 17 of the Trial
Court in the earlier suit reads as follows :

"It is however in evidence that the defendant (i.e. present plaintiff) F
~
~
has been performing the Urs for the Darga. PW 3 Azimuddin, a
person aged 60 years swears that the grave yard is under the
management of the Regimental Bazar Mosque and the manage-
ment of the grave yard was entrusted to the first defendant and
(the) house in the grave yard was used as a Musafir Khana. The G
plaintiff does not challenge the testimony of the witness".
'
'-', Therefore, the finding was that this house was being used as a Musafir
~ Khana. The above findings operate as res judicata in the present suit.

For the present, we shall omit from consideration the fmdings in the H
f

862 SUPREME COURT REPORTS [1999] 1 S.C.R.

A earlier suit that the present plaintiff was in possession and that the respon· ...;. v-"
dent was not in possession. We shall also omit from consideration the
finding that the respondent's father was a Chowkidar. In fact, in his written
statement in the present suit, the respondent did not accept the above
findings given in the earlier suit.
B Point 1 is decided accordingly.
/'-
Point 2 : •
On the question of title to the suit property, we have already referred
to the concession of the respondent's counsel in the earlier suit that the
c suit properties were all wakf property. Further, it was stated in the earlier
suit that so far as the house located in the suit property was concerned, it
was being used as a Musafir Khana.

Even so, learned counsel for the respondent-defendant has placed
reliance on Ex. Bl registered Gift Deed of 1938 executed by his father in
D his favour as proof of his title to the house property. In our view, when the
finding in the earlier suit that the suit property was Wakf property is res *
judicata, it is not permissible for the respondent to rely on this document
of 1938 for proving title. As to how far this document will help the
respondent to prove adverse possession, we shall consider that question
E separately under Point 3. For the present, we hold that the respondent
cannot be permitted to prove title to the house property on the basis of
Ex. Bl gift deed.

Further, the house property covered by the gift deed Ex. Bl, was
constructed in the grave yard and it was, as we shall presently show, meant
F to be used for religious purposes, and therefore it became an accretion to
-1
the wakf property, and bore the same character as the other properties in .4...
the compound in view of the principle laid down in Mohammed Shah v.
Fasiuddin Ansari, AIR (1956) SC 713.

For the aforesaid reasons, we hold that the suit properties, namely,
G the grave yard, Darga and house located therein are all wakf properties
and that the respondent has not proved any title thereto. Point 2 is held
accordingly.
....
Point 3: ~

H This point deals with the question of adverse possession and is the
't

WALIMOHAMMEDv. RAHMATBEE[M.JAGANNADHARAO,J.) 863

~ .._ crucial point. It is on this point that the respondent- defendant has sue- A
ceeded before the lower appellate court and the High Court in the present
proceedings.

Learned counsel for the respondent proceeded on the basis that the
grave yard and Darga were Wakf properties and confined the plea of
adverse possession to the house property alone. B
~
We shall start discussion on this point once again with Ex. B1
• registered gift deed of 1938 executed by the respondent's father in favour
of the respondent.

Ex. B2 deed of 1898 created a Wakf in respect of the house :
c
It is necessary initially to refer to the evidence of the respondent in
regard to the purpose for which and the circumstances in which the house
was constructed by his father. On this aspect the respondent relied upon
Ex. B2 dated 17th Sherawar 1308 F (i.e. 1898) to show that permission was D
-t granted to his father for construction of the house in 1898 and therefore
... the house became personal property. But the contents of this document
Ex. B2, in our view, are important and they throw much light on the
purpose of the permission granted for construction of the house. We get
it from para 8 of the judgment of the First Appellate Court in A.S. 32 of E
1965 in the earlier suit, that under the above document permission was
given to the respondent's father by the Fakirs of Arzan Shahi for construe-
tion of the house and they directed that :

"he should act in accordance with the wishes of the people of the
locality to perform fateha of the tombs in the grave yard-com- F
... pound, according to his mite and that the Fakirs who gather at the
,Jo.

grave yard should be provided with hucca tobacco and that the
applicant and his progeny will have similar rights."

The word 'progeny' used, in this connection, is very significant. It means
that the above obligations were cast on the respondent's father and also on
G
the respondent.
~-.

+.
Further, as is clear from the judgment of the Trial Court in the earlier
suit, the respondent's case in the plaint in that suit, - so far as the
permission for construction was concerned - was as follows : H
1
864 SUPREME COURT REPORTS (1999] 1 S.C.R.

A "The plaintiff and his forefathers have been managing the Darga
as well as the grave yard. An ance.stor of the plaintiff Mohammed
Ali Shah got the right to manage the Garga and the grave yard
and the right of Fatheah by the issue of a permission letter dated
17th Sherawar 1308 F given by the Sargaraeh Arzan Shahi, the
head of the order of Fateah. There are a number of tombs in the
B said compound."

The first part of this pleading shows that the Darga and grave yard were
given, even according to the respondent only for "management". The
second part of this pleading coupled with the recitals in Ex. B2 of 1898
C shows that the permission was given to his father for the construction of a
house for using the same in accordance with the wishes of the people of
the locality and for performance of Fateha at the tombs in the grave yard
compound, and to provide hucca tobacco to the fakirs who would gather
at the grave yard. The same obligations were conferred on the respondent-
defendant also under that document.
D
Fateha implies creation of a valid Wakf:

Question is whether property given for use for purposes of 'Fateha'
would create a Wakf. Such a question arose before the Privy Council in
Mutu Ramanadan Chettiyar v. Vave Levvai Marakayar, 41 I.A. 21 P.C. In·
E that case property was settled in 1893 by two Mohammedan brothers in
trust for various purposes. including the performance of the customary
Fatiha. Lord Atkinson observed (at p. 29) :

"As far theFatiha is concerned, it is to be the 'customary' ceremony
that the trustees are to perform without fail. Part of that ceremony
F
is to feed the poor ..... the dominating purpose and intention of
tl!_e -~antors is executing this deed evidently was to provide ade-
quately for these charities. That was their main and paramount
object.... the gift for the charities was perpetual ....... ~

G and concluded,
"If this be so, as they think it is, the deed is within the authorities
a good and valid deed of wakf......"

Mulla says that performance of annual fatiha of the settlor and other
H members of his family consists of recital of prayers for the welfare- of the
WALIMOHAMMEDv. RAHl\IATBEE[M.JAGANNADHARAO,J.] 865

souls of the said deceased persons, accompanied by distribution of alms to A
~
the poor and is a valid wakf. (Mulla's Mohammedan Law, 19th Edn. (para
178).

Therefore, the directions for conduct 'Fateha' at the grave yard and
to use the house for those purposes are certainly valid objects of a Wakf.
B
In the present case, the offerings of prayers are not confined to
~
prayers at the tombs of the grantor or his family members. The grant was
by the head of the order and related to prayers at a number of tombs in
the grave yard. It is, therefore, clear that a Wakf of a public nature was
created. In fact, it is the finding in the earlier suit in para 17 of the Trial c
Court judgment that the house was being used as a musafir khana.

Respondent's evidence of being 'proprietor' cannot be divorced from the other
parts of his evidence.

Learned counsel for the respondent, however, strongly relied upon D
--/

-
the words 'proprietor' used in para 10 of the judgment of the Trial Court
... in the earlier suit. We shall refer to the relevant passage from that judgment
and explain the context in which the said word was used.

In para 10, the Trial Court in the earlier suit had referred to the
E
evidence of the present respondent - defendant as PW 4 where he stated
that:

"he (defendant in the present suit) has the right to be the manager
of the grave yard and that he is also the proprietor. He claims and
traces his right to Ex. A2 dated 17th Sharewar 1308 F. It is styled F
;. as a sanction letter issued by the Fakirs of Arzan Shahi. It reads
..j
that in accordance with the application ...... submitted through
Ramzan Ali, the permission was granted to construct a house. It
Is further recounted in Ex. A2 that the person to whom the
permission was granted in accordance with the wishes of the
people of the locality and he performed the Fateh of the tombs in
G
the grave yard compound according to his might. Fariyas who
gather at the grave yard should be provided with hucca."
-.
... The document Ex. A2 referred to in the above passage is Ex. B2 permis-
sion, in the present suit. H
866 SUPREME COURT REPORTS [1999] 1 S.C.R.

A It is true that the Court stated in the earlier suit that the respondent
)<
in his evidence used the word 'proprietor'. But it is obvious from a reading
of the entire para that the word 'proprietor' has to be read along with the
rest of the respondent's evidence in that extract and cannot be divorced
from the context. Viewed in the context in \l1hich these words occur it is
clear that the respondent admitted that the house belonged to their family
B but was to be used for religious purposes. In our view, the word 'proprietor'
and the claim as ancestral property in the earlier suit were meant by the ;..
defendant to mean that the present plaintiff and the Wakf Board had no
right of management and that these properties were meant to be the
properties of the respondent and his family for being used for the aforesaid
c religious purposes. Thus the use of the word 'proprietor' cannot be of any
help to the respondent-defendant.

On basis of the 1898 deed, were respondent and his father in the position of
a mutavalli's?

D If, therefore, the respondent's father and after him, the respondent
..
were permitted since 1898 to use the house property for the purposes of
the Fateha and for use of the Fakirs as stated above, are they in the position
of a mutavalli?
-
' --

Now there are more reasons than one as to why the respondent's
E
father and the respondent cannot plead adverse possession in respect of
the house. We have noticed that the pe;-mission granted in 1898 to the
respondent's father by the Fakirs of Arzan Shahi creating obligations of a
religious nature in respect of the proposed house. Such obligations were
created both on the respondent's father and his ·progeny, the respondent.
F According to Mulla's Mohammedan Law [(para 202) 19th Ed., 1990)] a
mutavalli is a superintendent or manager of the Wakf property. If that be
so, the respondent and his father were certainly in a fiduciary position so
~
..
far as the house property was concerned and such persons in whom the
management was so vested are in law in the position of Mutavallis.
G
A mutavalli is prohibited from setting up adverse title unlike a stranger.

We have stated that both the respondent and his father, on their own
showing, are to be treated as Mutavallis in the eye of the law, at the relevant _...
time. If that be so then, as stated in Mulla (para 217), though 'Wakf
H property may be lost by adverse possession of a stranger to the trust, a
· WALIMOHAMMEDv.RAHMATBEE[M.JAGANNADHARAO,J.] 867

mutavalli's possession cannot be adverse to the wakf. It was so stated in A
"' Mohd. Shah v. Fasiuddin Ansari, AIR (1956) S.C. 713. In that case Bose,
J. observed as follows : (p. 724)

"It is true that a stranger to the trust could have encroached on
the trust estate and would in course of time acquired a title by
adverse possession. But a Mutavalli cannot take up such a posi- B
.. tion."
' Inasmuch as both the respondent's father and his progeny (i.e. the
respondent) answer the description of mutavallis, vis-a-vis the house, it is
clear that it was not open to either of them to set up adverse possession.
c
It is true that the respondent is also a donee of the property under
the gift deed of 1938 from his father. A question might arise whether his
possession is referable to the original deed of 1898 which conferred
obligation on the 'progeny' also or whether the possession is to be treated
to the gift deed of 1938. In our view, respondent's father was himself a D
...(
manager and if could not have claimed adverse possession of the property,
... and could not have acquired title by adverse possession he could not have
transferred to his son a higher right than that of a manager. Thus the
respondent's father and the respondent, if they were managing the proper-
ties and were in the position of Mutavallis, they could not have prescribed
title by adverse possession. E

Also no adverse possession because of constructive res judicata upto 1963.

It must also be held, applying the principle of constructive res
judicata, .that inasmuch as the respondent had not set up any plea of
·t- adverse possession by the date of the earlier suit, there could be no adverse F
-'. possession at any rate for the period upto 27.7.1963 when the earlier suit
was filed.

After 1963, no adverse possession could be prescribed by respondent, as he
was not a trustee for consideration, even if he was not a mutavalli but a
G
stranger:

Alternately, the question as to adverse possession of the respondent
-J after 27.7.1963 can be examined separately, on the basis that he was in
possession of the house as a stranger, that is to say, as donee under the
1938 document and not as a successor-mutavalli. Even so, we are of the H
868 SUPREME COURT REPORTS [1999] 1 S.C.R.

A opinion that the present plaintiffs right to recover possession from the )<

defendant is not barred in view of Section 10 of the Indian Limitation Act,
1963. The said provision came into force w.e.f. 1.1.1964. Section 10 of the
said Act reads as follows :

"Section JO-Suits against trnstees and thei; representatives - Not-
B withstanding anything contained in the foregoing provisions of this
Act, no suit against a person in whom property has become vested ,.
in trust for any specific purpose, or agairist his legal representatives ,.
or assigns (not being assigns for valuable consideration), for the
purpose of following in his or their hands such property, or the
proceeds thereof, or for an account of such property or proceeds,
c shall be barred by any length of time.

Explanation - For the purposes of this section any property com-
prised in a Hindu, Muslim or Buddhist religious or charitable
endowment shall be deemed to be property vested in trust for a
D specific purpose and the manager of the property shall be deemed
to be the trustee thereof."
-
).

It will be seen that the main part of Section 10 states that no period
of limitation applies for recovery of property from a trustee in whom the
property is vested for a specific purpose, unless such a person is an
E assignee for valuable consideration. The Explanation further states that it
shall be deemed that a person managing the property of a Hindu, Muslim
or Buddhist religious or charitable endowments is to the deemed to be
trustee in whom such property has vested for a specific purpose. We shall
explain these provisions in some detail.

F In Vidya Varnthi v. Baluswami, AIR (1922) PC 123 - ILR 44 Mad.
-1•
835 PC, the Privy Council held that property comprised in a Hindu or
Muhammadan religious or charitable endowment was not property vested
in trust for a specific purpose within the meaning of the said words in the
main section. The reason was that according to the customary law, where
property was dedicated to a Hindu idol or Mutt or to a Muhammadan
G
wakf, the property vested in the idol or the institution or God, as the case
may be, directly and that the shebait, mahant, mutavalli or other person
who was in charge of the institution was simply a manager on behalf of the
institution. As Section 10 did not apply unless these persons were trustees _..
this judgment made recovery of properties of the above trusts from donees
H from these managers, rather difficult.
WALIMOHAMMEDv. RAHMATBEE[M.JAGANNADHARAO,J.) 869
~

"' The Legislature therefore intervened and amended Section 10 for the A
purpose of getting over the effect of the above judgment. The Statement
of Objects and Reasons to the Bill of 1929 makes this clear. It says :

"The (Civil Justice) Committee's recommendation refers, it is un-
derstood, to the decisions of the Privy Council in Vidya Vamthi v.
B
..; Baluswami, ILR 45 Mad 835 PC and Abdur Rahiman v. Narayan
Das, (1922) 50 1 A 84 which lay down that a dharmakarta, mahant
or manager of a Hindu religious property or the mutavalli or
sajjada nashin in whom the management of Muhammandan
religious endowment is vested, are not trustees within the meaning
of the words as used in Section 10 of the Limitation Act, for the c
reason that the property does not vest in them. The result is that
when a suit is brought against a person, not being an assign for
valuable consideration, endowments of this nature, are not
protected. The Committee's recommendation is that Section 10 of
the Limitation Act should be amended so as to put Hindu and
-.( D
Mohammedan religious endowments on the same footing as other
_# trust funds which definitely vest in a trustee."

Thus, in view of the Explanation to Section 10 of the Limitation Act,
1963 the resp011dent's father who was managing the property must be
'deemed' to be a trustee in whom the properties vested specifically and in E
as much as the respondent was a donee and was not a transferee for
valuable consideration, Section 10 applies and possession could be
recovered from the defendant without any limitation as to time.

+ The position in Gadadhar v. Official Tmstee, AIR (1940) P.C. 45 was F
·-'. the same. There the trust was created under a will by the testator. His son
and one Dwarkanath were to be trustees. After the son's death, the
co-trustee got the property of the trust mutated in the name of the son's
widow. The respondent-defendant came into possession after the death of
the son's widow. The Officeial Trustee sued to recover possession. The
respondent-defendant contended that their predecessor-in- Interest, name- G
ly, the son's widow was in adverse possessie>n for nearly 50 years, while
managing the trust. Sir George Rankin, speaking for the Board rejected
--}
the plea and observed that as it was not pretended that she gave valuable
consideration, the defence of limitation was not available to her but was
excluded by the terms of Section 10. On the other hand. In Gushiddaswami H
870. SUPREME COURT REPORTS [1999] 1 S.C.R.

A v. D.M.D. Jain Sabha, AIR (1953) S.C. 514 reliance by the plaintiffs on
Section 10 of the Limitation Act, :i908 was not accepted on the ground that
"' --
the respondents- defendants were alienees for consideration and were not
assignees witltout consideration. In the present case before us, the respon-
dent-defendant was a donee from his father· and hence Section 10 applies
and there is no period of limitation for recovery of the property.
B
~
The lower appellate court and the High Court erred in not noting
that a M utavalli can never set up adverse title and that property could be
recovered from the donee of a Mutavalli at any time in vieW-Of Section 10.
The Courts also erred in thinking that the respondent in the earlier suit
c claimed as 'properietor' and that was the starting point of limitation.

The judgment and decrees passed by the lower· appellate court and
the High Court are contrary to law and are· set aside and the appeal is
allowed. The decree of the Trial Court is restored. There will be no order
as to costs in this appeal.
D ~
v.s.s. Appeal allowed.
.,__