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Furkhan Ahmed v. Mirza Gaffar Beg - CIVIL REVISION No. 445 of 1988  RD-AH 11578 (10 July 2007)
Judgment Reserved on 18.4.2007
Judgment Delivered on 10.7.2007
Civil Revision No. 445 of 1988
Furqan Ahmad Khan Versus Mirza Gaffar Beg and others.
Hon'ble S.U.Khan J
Heard learned counsel for the parties.
Smt Hajjan Jannat Begum filed O.S No. 7 of 1979 against Sardar Mohan Singh and others being respondents No. 2, 3 and 4 in this revision for eviction from a shop of which they are tenants and Smt Hajjan Jannat Begum was landlady. The original plaintiff claimed that she had created a Waqf and appointed herself as Mutawalli and shop in dispute belonged to the Waqf. Original plaintiff died on 10.3.1980. Original respondent No.1 Mirza Gaffar Beg filed an application for substitution on two grounds. He claimed that firstly power of attorney had been executed by the original plaintiff and even during her life time he was looking after the property of Waqf; Secondly he pleaded that the original plaintiff/ Wakif/ Mutawallia had executed a will deed in his favour appointing him as Mutawalli and after his death his two sons and it was done for the reason that in the original Waqf deed there was no provision of appointment of subsequent Mutawalli. Mirza Gaffar Beg filed substitution application on 28.3.1980 i.e. within three weeks from the date of death of original plaintiff. The applicant Furqan Ahmad Khan filed substitution application after three years of death of Smt Hajjan Jannat Begum original plaintiff.
Original plaintiff died on 10.3.1980. On the very next date i.e. 11.3.1980, suit was dismissed for non-prosecution. Thereafter, Mirza Gaffar Beg filed restoration application. The said restoration application was allowed on 29.1.1982 by IV Additional District Judge Agra, true copy of the order is annexure RA2. Thereafter, suit was decreed ex-parte and the tenant filed restoration application. In the said restoration application Mirza Gaffar Beg was impleaded as opposite party. Restoration application had been registered as Misc. Case No. 31 of 1983. Said application was allowed on 28.10.1983 by the III A.D.J Agra, copy of the said order is annexure RA 3. It appears that after 28.10.1983 applicant Furqan Ahmad Khan filed impleadment application / substitution application. The case of the applicant Furqan Ahmad Khan was that the original plaintiff/ Wakif had executed supplementary Waqf deed on 3.11.1966 appointing him (Furqan Ahmad) as subsequent Mutawalli.
IV Additional District Judge, Agra through order dated 8.4.1988 held that Furqan Ahmad Khand did not deserve to be substituted and as Mirza Gaffar Beg was Mutawali hence he should be substituted. The said order has been challenged through this revision.
Learned counsel for the respondent has argued that applicant Furqan Ahmad Khan has been set up by the tenants to delay the proceedings of the suit and in case he was appointed as Mutawalli then he should have taken care of the case earlier while in fact he filed substitution application after three years of death of original plaintiff and after the suit was once dismissed in default and once decreed exparte and then restored.
The court below has held that under Muslim Law Waqf deed can not be amended by subsequent deed. Court below has further held that the amended Waqf deed dated 3.11.1966 could not be proved. Court below further held that endorsement of the Sub Registrar on the alleged amended Waqf deed dated 3.11.1966 showed that one lady standing behind the wall under stood the contents and as she was not with the Sub Registrar, hence, face to face , there was likelihood of fabrication. Court below further held that if Smt Hajjan Jannat Begum had executed the amended Waqf deed then there was no need for her to execute power of attorney and will deed. The said power of attorney and will deed were found to be genuine and valid.
I do not agree with that part of the reasoning of the court below whereby amended Waqf deed has been held to be invalid in law. If Wakif could execute a will deed providing for successor Mutawalli, as in the original Waqf deed no such provision had been made, then she could also very well execute amended Wakf deed dated 3.11.1966 containing that provision. Nomenclature of the deed is not decisive. The deed dated 3.11.1966 could be held to be invalid only in that regard through which it amended the original Wakf deed substantially. However, in case it was legally permissible to provide through subsequent deed the manner of appointing subsequent Mutawallis then it could be done through registered deed dated 3.11.1966 also. Absolutely no distinction can be drawn between will deed found to have been executed by Smt Hajjan Jannat Begum and the deed alleged to have been executed by her on 3.11.1966 in respect of provision for subsequent Mutawallis as far as their validity is concerned.
However, the court below held that the execution of deed on 3.11.1966 was not proved. In view of this even reversal of the finding of the court below on the legal question will not make any difference. The finding in regard to genuineness of deed dated 3.11.1966 is prima facie correct which requires no interference in exercise of revisional jurisdiction.
The decision regarding substitution under Order 22 Rule 5 CPC is summary in nature and made only for continuance of the suit. Such decision does not operate as res judicata. The question of devolution of interest can subsequently be raised in appropriate proceedings. In this regard reference may be made to the following authorities.
1. AIR 2007 Alld 105, Ashwani Kumar Vs. Vidya.
2.AIR 1925 Nagpur 209
3.AIR 1963 Patna 390
4.AIR 1996 MP 13
5.AIR 1976 HP 74
6.2004 (57) ALR 97 Deewan Singh and another V. Bala Singh and another
7.AIR 1995 AP 351
8.AIR 1975 Mad 124
9.AIR 1975 Mad 174
10.AIR 1958 Alld 573, Ram Kalap Vs. Banshi Dhar (DB).
11.1970 ALJ 1167
12.AIR 1981 Pun 130 (FB)
13.2002 (2) ARC 13, Sarla Devi Vs. District Judge.
14.2000 (1) ACJ 721.
Moreover, decree obtained by Mirza Gaffar Beg (or his sons after his death) will be for the benefit of the Waqf.
Accordingly, revision is dismissed. However, it is clarified that applicant Furqan Ahmad Khan is at complete liberty to initiate such independent proceedings for establishing his right as Mutawalli which may be available to him including application to that effect before the Waqf board. If such proceedings are initiated then the same shall be decided on the evidence brought on record in the said proceedings without taking into consideration either this judgement or the judgment challenged through this revision.
Hon'ble S.U.Khan J
This application has been filed by sons of opposite party No.1 Mirza Gaffar Beg for substitution. Mirza Gaffar Beg filed substitution application before the court below which was allowed on the ground that the original plaintiff/ Wakif / Mutawallia, Smt Hajjan Jannat Begum had executed a will deed in his favour appointing him as Mutawalli and after his death his two sons Rustam Beg and Iqbal Beg. This substitution application has been filed by Rustam Beg and Iqbal Beg sons of Mirza Gaffar Beg. The respondent No.1 who was rival claimant to Mutawalliship has also filed substitution application being application No. 15680 filed on 4.12.1989 seeking substitution of Administrator General U.P at the place of Mirza Gaffar Beg. The will deed has been held to be valid and genuine by the court below. The correctness of the said finding will be decided in the judgement of the revision. For the purposes of continuance of this revision application filed by Rustam Beg and Iqbal Beg dated 2.9.1990 is allowed and application filed by respondent is rejected.
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