KIRAN DEVI versus THE BIHAR STATE SUNNI WAKF BOARD & ORS.

[2021] 7 S.C.R.

KIRAN DEVI

THE BIHAR STATE SUNNI WAKF BOARD & ORS.

(Civil Appeal No. 6149 of 2015)

APRIL 05, 2021

[ASHOK BHUSHAN, S. ABDUL NAZEER ANDHEMANT GUPTA, JJ.]

Hindu Law: Hindu joint family property – Presumption of –Held: There can be presumption of Hindu joint family property ifCthe property has been acquired by the male member or if the samehas been treated as joint Hindu family – However, no suchpresumption is attached to business activity carried out by anindividual in tenanted premise – Even if male member had takenpremises on rent, he is tenant in his individual capacity and not asDKarta of Hindu Undivided Family in the absence of any evidencethat Karta was doing the business for and on behalf of Joint HinduFamily – Hindu Joint Hindu Family cannot be presumed to be inexistence only on the basis of Ration Card and payment of rentunless there is evidence that the funds of joint Hindu Family wereinvested in the business in the tenanted premises – On facts, HighECourt held that the payment of rent or the Ration Card proves thatthe tenant was carrying business as Joint Hindu Family Business,and also rejected the surrender of tenancy – Facts would show thatit was the contract of tenancy which was inherited by the grandfatherof the plaintiff who later surrendered it in favour of the Wakf BoardF– Even if the great grandfather was maintaining the family out ofthe income generated from the hotel business, that itself would notmake the other family members as coparceners in the hotel business– Tenancy was an individual right vested with the grandfather ofthe plaintiff who was competent to surrender it to the landlord –Thus, the order by the High Court that the tenant in the premisesGwas representing joint Hindu family and that the Karta was notcompetent to surrender the legacy rights in favour of Wakf Boardand consequently the induction of the appellant as tenant by theWakf Board was illegal and thus, issuance of direction to dispossessthe appellant from the suit premises and to handover the vacantHpossession to the plaintiff, is not sustainable and set aside, and that

of the Wakf Tribunal is restored – Wakf Act, 1995 – ss. 85, 85A,83(9).

Constitution of India: Arts. 226 and 227 – Writ petition –Petition u/Art. 227 filed against an order of the Wakf Tribunal beforethe High Court – Petition titled as writ petition – Jurisdiction ofHigh Court – Held: Nomenclature of the title of the petition filedbefore the High Court is immaterial – It is wholly immaterial that it istitled as writ petition – Petition styled as one u/Art. 226 would notbar the High Court to exercise jurisdiction under the Act and/or u/Art. 227 – In certain High Courts, petition u/Art. 227 is titled as writpetition and in certain other High Courts as revision petition or asmiscellaneous petition – On facts, keeping in view the nature of theorder passed in the light of proviso to sub-section (9) of s. 83 of theAct, the High Court exercised jurisdiction only under the Act, whichwas restricted to only examine the correctness, legality or proprietyof the findings recorded by the Wakf Tribunal – Wakf Act, 1995 –ss. 85, 85A, 83(9).

Allowing the appeal, the Court

HELD: 1.1 The plaintiff had invoked the jurisdiction of theCivil Court in the year 1996. It is the Wakf Board and the appellantwho then filed an application for transfer of the suit to the WakfTribunal. Though, in terms of Ramesh Gobindram’s case, the WakfTribunal could not grant declaration as claimed by the plaintiff,but such objection cannot be permitted to be raised either by theWakf Board or by the appellant as the order was passed by theCivil Court at their instance and was also upheld by the HighCourt. Such order has thus, attained finality inter-parties. Theparties cannot be permitted to approbate and reprobate in thesame breath. The order that the Wakf Tribunal has the jurisdictioncannot be permitted to be disputed as the parties had acceptedthe order of the civil court and went to trial before the Tribunal. Itis not situation where plaintiff has invoked the jurisdiction ofthe Wakf Tribunal. [Para 13][97-F-H; 98A-B]

1.2 It is not conferment of jurisdiction by the plaintiffvoluntarily but by virtue of judicial order which has now attainedfinality between parties. The suit was accordingly decided by the

AWaqf Tribunal. It is not open to the appellant to raise the objectionthat the Waqf Tribunal had no jurisdiction to entertain the suit inthe facts of the instant case. [Para 14][98-C-D]

Ramesh Gobindram (Dead) through LRs. v. SugraHumayun Mirza Wakf (2010) 8 SCC 726:[2010] 10 SCRB945 – referred to.

1.3 perusal of the proviso to sub-section (9) of Section 83of the Wakf Act, 1995 shows that it confers power on the HighCourt to call for and examine the records relating to any dispute,question or other matter which has been determined by theCTribunal for the purpose of satisfying itself as to the correctness,legality or propriety of such determination. In fact, the statutoryprovision is acceptance of the principle that the jurisdiction ofthe High Court under Article 226 or 227 of the Constitution ofIndia cannot be curtailed in terms of L. Chandra Kumar v. Unionof India & Ors. [Para 18][99-F-H]DSadhana Lodh v. National Insurance Co. Ltd. & Anr.(2003) 3 SCC 524:[2003] 1 SCR 567 – distinguished.

L. Chandra Kumar v. Union of India & Ors. (1997) 3SCC 261:[1997] 2 SCR 1186; Md. Wasiur Rahman &EAnr v. The State of Bihar & Ors. CWJC No. 14622 of2017 dt. 25.04.2018; Radhey Shyam & Anr. v. ChhabiNath & Ors. (2015) 5 SCC 423: [2015] 3 SCR 197;Surya Dev Rai v. Ram Chander Rai & Ors. (2003) 6SCC 675:[2003] 2 Suppl. SCR 290 – referred to

F1.4 When petition is filed against an order of the WakfTribunal before the High Court, the High Court exercises thejurisdiction under Article 227 of the Constitution of India.Therefore, it is wholly immaterial that the petition was titled as awrit petition. It may be noticed that in certain High Courts, petitionunder Article 227 is titled as writ petition, in certain other HighGCourts as revision petition and in certain others as miscellaneouspetition. However, keeping in view the nature of the order passed,more particularly in the light of proviso to sub-section (9) of Section83 of the Act, the High Court exercised jurisdiction only underthe Act. The jurisdiction of the High Court is restricted to only

examine the correctness, legality or propriety of the findingsrecorded by the Wakf Tribunal. The High Court in exercise ofthe jurisdiction conferred under proviso to sub-section (9) ofSection 83 of the Act does not act as the appellate court.Nomenclature of the title of the petition filed before the HighCourt is immaterial. Therefore, the petition styled as one underArticle 226 would not bar the High Court to exercise jurisdictionunder the Act and/or under Article 227 of the Constitution. Thenomenclature of the proceedings as petition under Article 226or petition under Article 227 is wholly inconsequential andimmaterial. [Para 20, 21 and 23][101-D-G; 103-B]

Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate& Ors. (1998) 5 SCC 749: [1997] 5 Suppl. SCR 12 –relied on.

Municipal Corporation of the City of Ahmedabad v. BenHiraben Manilal (1983) 2 SCC 422: [1983] 2 SCR 676– referred to.

1.5 The plaintiff has pleaded that when father of the plaintiffjoined service, the shop was being run through the servants andthat the plaintiff began to run the hotel since 1988. Thereafter,the disputes cropped up over the management and accounting ofthe income and the hotel was closed for many years. The HighCourt held that the existence of joint family is established fromthe Ration Card issued on 2.4.1949 and from the payment of rentfor the period 1947-1955 that the premises were let out to jointfamily. The High Court also rejected the surrender of tenancy onthe ground that it was without the consent of other co-parceners.Thus, even if male member had taken premises on rent, he istenant in his individual capacity and not as Karta of HinduUndivided Family in the absence of any evidence that Karta wasdoing the business for and on behalf of Joint Hindu Family. TheHigh Court has presumed the existence of the joint family of whichbrother of great grand father of plaintiff was said to be the Kartafrom perusal of the Ration Card issued on 2.12.1949. The HinduJoint Hindu Family cannot be presumed to be in existence onlyon the basis of Ration Card unless there is evidence that the

Afunds of joint Hindu Family were invested in the business in thetenanted premises. Thus, the High Court committed basic errorof law and fact that the payment of rent or the Ration Card provesthat the tenant was carrying business as Joint Hindu FamilyBusiness. There can be presumption of Hindu joint family propertyif the property has been acquired by the male member or if theBsame has been treated as joint Hindu family. But no suchpresumption is attached to business activity carried out by anindividual in tenanted premise. [Para 27-29 and 31][104-E;G-H; 105-A; 106-C-D; 107-F-G]

1.6 perusal of the facts on record would show that it was aCcontract of tenancy entered upon by great grandfather of theplaintiff. Even if the great grandfather was maintaining the familyout of the income generated from the hotel business, that itselfwould not make the other family members as coparceners in thehotel business. It was the contract of tenancy which was inheritedDby the grandfather of the plaintiff who later surrendered it in favourof the Wakf Board. The tenancy was an individual right vestedwith the grandfather of the plaintiff who was competent tosurrender it to the landlord. The High Court erred in law by holdingthat since the grandfather was tenant, the tenancy is joint familyasset. The contract of tenancy is an independent contract thanEthe joint Hindu family business. [Para 32][107-G-H; 108-A-B]

1.7 The evidence produced by the plaintiff is payment ofrent by either brother of great grandfather of plaintiff or by thegrandfather of the plaintiff. Such payment of rent is not indicativeof the fact that the hotel business was by the joint Hindu family.FThus, mere payment of rent by great grandfather or by the grand-father of the plaintiff raises no presumption that it was jointHindu family business. The High Court has clearly erred in law tohold so without any legal or factual basis. [Para 33 and 35][108-B-C; 110-A-B]G

1.8 Even if nephew of the plaintifff is considered to berepresenting the joint Hindu family while carrying out hotelbusiness in the tenanted premises, the question as to the act Kartato surrender of tenancy was for the benefit of the joint Hindufamily. [Para 36][110-B-C]

Hindu Law by Mulla 22[nd] Edition – referred to.

1.9 The plaintiff pleaded that the hotel was closed for severalyears, thus, the liability to pay monthly rent continued to accrueupon karta-nephew of the plaintiff. The High Court found that theletter of surrender was not reliable or tenable. The executor ofthe surrender letter has admitted such surrender letter in thewritten statement and while appearing as witness as DW-5. TheMutawalli has also accepted the surrender letter in the writtenstatement and while appearing in the witness box as DW-10.Merely for the reason that signatures in the translated copy donot tally with the Urdu copy is not sufficient to hold the surrenderletter as unreliable as the translation can be incorrect but thecorrectness of the document has not been disputed by theexecutor or by the acceptor. The said document could not havebeen said to be unreliable on the basis of the statement of theplaintiff who is not party to such transaction. It is one thing tosay that the document is unreliable and another to say that thedocument does not bind the plaintiff. There is no hesitation tohold that the document was validly proved and accepted by theWakf Board. Thus, the act of surrender of tenancy was for thebenefit of the Joint Hindu family. [Para 37][111-B, C-E]

1.10 The order of the High Court is not sustainable for thereasons recorded and is set aside and that of the Wakf Tribunal isrestored. [Para 38][111-F]

Punjab Wakf Board v. Sham Singh Harike (2019) 4 SCC698 : [2019] 2 SCR 61; Chandavarkar Sita Ratna Raov. Ashalata S. Guram (1986) 4 SCC 447: [1986] 3 SCR866 ; Ganpat Ladha v. Sashikant Vishnu Shinde (1978)2 SCC 573 : [1978] 3 SCR 198 ; Ram Awalamb &Ors. v. Jata Shankar & Ors. AIR 1969 All. 526;Commissioner of Income Tax, Madhya Pradesh v. SirHukamchand Mannalal & Co (1970) 2 SCC 352 :[1971] 1 SCR 646; P.K.P.S. Pichappa Chettiar & Ors.v. Chockalingam Pillai & Ors. AIR 1934 Privy Council192; G. Narayana Raju (Dead) by his Legal

ABC

92SUPREME COURT REPORTS

[2021] 7 S.C.R.

ARepresentative v. G. Chamaraju & Ors. AIR 1968 SC1276 : [1968] SCR 464; P.S. Sairam & Anr. v. P.S. RamaRao Pissey & Ors. (2004) 11 SCC 320:[2004] 2 SCR98 – referred to.

Case Law Reference

FCIVIL APPELLATE JURISDICTION: Civil Appeal No. 6149 of2015.

From the Judgment and Order dated 06.02.2013 of the High Courtof Judicature at Patna in CWJC No. 1894/2012.

Shantanu Sagar, Prabhat Ranjan, Jeewesh Prakash, Ms. DivyaGMishra, Anil Kumar, Advs. for the Appellant.

Subhro Sanyal, Adv. for the Respondents.

The Judgment of the Court was delivered by

HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order passed by theHigh Court of Judicature at Patna dated 6.2.2013 whereby writ petitionfiled by respondent No. 4[1] herein was allowed, holding that the tenant inthe premises in question was representing joint Hindu family and thatthe Karta was not competent to surrender the tenancy rights in favour ofrespondent No. 1-The Bihar State Sunni Wakf Board[2] and consequentlythe induction of the appellant as tenant by the Wakf Board was illegal.Accordingly, direction was issued to dispossess the appellant from thesuit premises and to handover the vacant possession to the plaintiff.2. The plaintiff had filed suit for declaration before the competentcivil court stating that he is tenant in the suit premises and is entitled tocontinue in the suit premises as tenant on payment of monthly rent.The basis of such declaration was that Ram Sharan Ram, the greatgrandfather of the plaintiff, predeceased his brother Ram Sewak Ramwho died issueless and his widow predeceased him. Ram Sewak Ramwas carrying out joint family business of hotel in the premises of theWakf Board. Due to advanced age, he handed over the possession ofthe hotel business to his nephew Devendra Prasad Sinha, the grandfatherof the plaintiff. The grandfather of the plaintiff succeeded to the tenancyas member of the joint Hindu family. After his death, defendant Nos. 1 to3 succeeded to tenancy as members of the Joint Hindu Family. The shopwas being run by Surendra Kumar, son of Devendra Prasad Sinha, whenthe grandfather of the plaintiff fell ill. Surendra Kumar, the father of theplaintiff started paying rent to the Wakf Board. However, Surendra Kumarlater joined service and the hotel was being run through the servants.The plaintiff had started running the hotel since 1988. On account ofdisputes over the management, the hotel was closed and it remain closedfor several years. It is the plaintiff who wanted to resume the hotel businessin the premises in question and thus communicated with the Wakf Boardto continue the hereditary tenancy of the shop as Karta in his name.

3. The cause of action was stated to arise on 21.3.1996, when theplaintiff’s grandfather along with others broke the lock of the suit premisesand removed the belongings available in the shop. The father of the plaintiffwent to the Police for lodging of the report but they refused to registerthe case. complaint was subsequently filed in the court of Chief Judicial

1 Hereinafter referred to as the ‘plaintiff

2 Hereinafter referred to as the ‘Wakf Board’

DEF

AMagistrate, Patna, which is stated to be pending. Later, the plaint wasamended and the present appellant was impleaded as defendant No. 5alleging that the lease in her favour by the Wakf Board is forged, fabricated,anti-dated and collusive paper.

4. The Wakf Board in its written statement asserted that Md.BSalimuddin was the duly appointed Mutawalli of the Janki Bibi WakfEstate No. 465B and the appellant is tenant duly inducted by theManagement Committee. It was also pleaded that the defendants had noknowledge that Ram Sewak Ram was carrying any business of hotel butthat Devendra Prasad Sinha was tenant in the suit premises who hadsurrendered his tenancy rights in favour of Md. Salimuddin through aCwritten letter dated 31.5.1996 and thereafter handed over vacantpossession of the premises. Subsequently, the appellant had been inductedas tenant on monthly rent of Rs.600/- on 5.6.1996. This was alsoindicated in the written statement filed by the appellant herein. In aseparate written statement filed on behalf of defendant Nos. 1 and 2, itDwas asserted that defendant No. 1 was making payment of rent to thelandlord i.e. Mutawalli of the Wakf and that he had surrendered the shoppremises on 31.5.1996 to the landlord/Mutawalli of the Wakf as he wasunable to continue the business due to old age. It was denied that theplaintiff and his father went to lodge FIR on account of opening of thelocks by defendant No. 1. It was asserted that the plaintiff had no occasionEof claiming the shop on 21.3.1996 as the said shop was never in hispossession nor under his lock and key.

5. The appellant and the Wakf Board filed applications before theCivil Court for transfer of the suit for adjudication by the Wakf Tribunalin terms of provisions of Section 85 and 85A of the Wakf Act, 1995[3]. TheFsuit was thus transferred by the learned Munsif on 4.2.2009. Such orderof transfer of the suit to the Tribunal was challenged by the plaintiff byway of revision petition before the Patna High Court. Such revisionwas found to be frivolous and dismissed on 19.5.1999 with cost ofRs.3,000/-.

G6. The parties went to trial on the following issues before the WakfTribunal:

“(i) Whether Devendra Prasad was running joint family business?(ii) Whether Devendra Prasad as Karta of joint family businesshas got authority to surrender the joint family business?

H3 For short, the ‘Act’

(iii) Whether Devendra Prasad surrendered joint family businessor premises of joint family business?

(iv) Whether the plaintiff is entitled to any other relief?”

7. Devendra Prasad Sinha (defendant No. 1) appeared as DW-5whereas Dilip Kumar (defendant No. 2) appeared as DW-14 before theWakf Tribunal. The said witnesses supported their stand that the tenancywas surrendered on 31.5.1996. The learned Tribunal held that defendantNo. 1 was running hotel business and had later surrendered the shop toMutawalli. The writing on paper to surrender the possession was admittedby the witness. It was also observed that there was no oral ordocumentary evidence that Devendra Prasad Sinha had surrendered thepremises where he was running joint family business. The Tribunal notedthat the plaintiff did not even suggest that Devendra Prasad was managinga joint family business and thus in the absence of such suggestion it wasdifficult or rather impossible to believe that Devendra Prasad wasmanaging joint family business. Consequently, the suit was dismissed.

8. The High Court in writ petition against the said order held thatthe suit premises were let out to Ram Sewak Ram who carried out jointfamily hotel business in the said premises until his death in January, 1960.Thereafter, defendant No. 1 became the Karta and succeeded to jointfamily business including the suit premises. It was observed that he couldnot have surrendered the tenancy in favour of Mutawalli on 31.5.1996without the consent of other members of the joint family. Consequently,the judgment of the Tribunal was set aside and also direction wasissued to dispossess the appellant from the suit premises and to handoverthe vacant possession of the suit premises to the plaintiff.

9. Learned counsel for the appellant has raised the followingarguments:

(1)That the Tribunal had no jurisdiction to entertain the suit filedby the plaintiff in view of the judgment of this Court in RameshGobindram (Dead) through LRs. v. Sugra HumayunMirza Wakf[4]. After the aforesaid Judgment, the Wakf ActGwas amended by Central Act No. 27 of 2013. This Courtrecently in Punjab Wakf Board v. Sham Singh Harike[5]

4 (2010) 8 SCC 726

5 (2019) 4 SCC 698

Ahas considered the amendment in the Act, wherein, theproceedings instituted prior to the amendment were to continueas per the unamended provisions of the Act. Therefore, asuit for declaration of the plaintiff as tenant was notmaintainable before the Wakf Tribunal as there was noestoppel against the statute and that the consent would notBconfer jurisdiction on the Wakf Tribunal, which it did not havein view of the judgments referred.

(2)The order of the Wakf Tribunal could not be challenged byway of writ petition before the High Court under Article 226of the Constitution of India as only revision in terms ofCproviso to sub-section (9) of Section 83 of the Act could bepreferred. Learned counsel for the appellant relies on judgmentreported as Sadhana Lodh v. National Insurance Co. Ltd.& Anr.[6] and of Patna High Court in Md. Wasiur Rahman& Anr v. The State of Bihar & Ors.[7].

D(3)The High Court could not have reappreciated facts in petitionunder Article 227 of the Constitution. The High Court hasillegally set aside findings of fact recorded by the WakfTribunal. The reliance was placed on Chandavarkar SitaRatna Rao v. Ashalata S. Guram[8]. It was also argued thatEin petition under Article 226 or 227 of the Constitution, nointerference is permitted in tenancy matter. Reference wasmade to Ganpat Ladha v. Sashikant Vishnu Shinde[9] tosupport the said contention.

(4)The surrender of possession of the tenanted premises byFdefendant No. 1 was not of business of joint Hindu familybut of the tenancy which was not been carried out for largenumber of years even as admitted by the plaintiff.

(5)Even if it was assumed that defendant No. 1 was Karta ofthe joint Hindu family, he had the right to surrender the tenancyGwithout the consent of the other coparceners as suchsurrender was for the benefit of the family inter-alia for the

6 (2003) 3 SCC 5247 CWJC No. 14622 of 2017 dt. 25.04.20188 (1986) 4 SCC 447H9 (1978) 2 SCC 573

reason that no business was carried out for the last manyyears.

10. On the other hand, Mr. Sanyal, learned counsel for the plaintiffargued that the nomenclature as to whether the jurisdiction of the HighCourt under Article 226 of the Constitution of India is invoked or thejurisdiction in terms of the proviso to sub-section (9) of Section 83 of theAct is invoked, is immaterial as the jurisdiction in either case is that of theHigh Court. The nomenclature in exercise of the jurisdiction does notrender the order passed by the High Court to be illegal or unwarranted orbeyond jurisdiction. Reference was made to Pepsi Foods Ltd. & Anr. v.Special Judicial Magistrate & Ors.[10].

11. It was further argued that Ram Sewak Ram was inducted asa tenant and therefore, the plaintiff has right by birth in the tenancywhich could not be surrendered by the then Karta, defendant No. 1 withoutthe consent of the other coparceners. Since the possession was deliveredto the appellant as consequence of illegal surrender of tenancy rights,therefore, the order of the High Court is just and proper.

12. Mr. Sanyal referred to Full Bench judgment of the AllahabadHigh Court reported as Ram Awalamb & Ors. v. Jata Shankar &Ors.[11] to contend that the personal law of Hindus regarding the devolutionof joint Hindu family property is applicable to tenanted property also.Reference was also made to judgment of this Court reported asCommissioner of Income Tax, Madhya Pradesh v. Sir HukamchandMannalal & Co.[12] that members of Hindu Undivided Family can enterinto contract with stranger.

13. We have heard learned counsel for the parties and find that itis not open to the appellant at this stage to dispute the question that thesuit filed before the learned Munsif could not have been transferred tothe Wakf Tribunal. The plaintiff had invoked the jurisdiction of the CivilCourt in the year 1996. It is the Wakf Board and the appellant who thenfiled an application for transfer of the suit to the Wakf Tribunal. Though,in terms of Ramesh Gobindram, the Wakf Tribunal could not grantdeclaration as claimed by the plaintiff, but such objection cannot bepermitted to be raised either by the Wakf Board or by the appellant asthe order was passed by the Civil Court at their instance and was also

10 (1998) 5 SCC 749

11 AIR 1969 All. 526

12 (1970) 2 SCC 352

Aupheld by the High Court. Such order has thus attained finality inter-parties. The parties cannot be permitted to approbate and reprobate inthe same breath. The order that the Wakf Tribunal has the jurisdictioncannot be permitted to be disputed as the parties had accepted the orderof the civil court and went to trial before the Tribunal. It is not situationwhere plaintiff has invoked the jurisdiction of the Wakf Tribunal.B

14. The argument raised by the learned counsel for the appellantthat there was no estoppel against the statute as consent could not conferjurisdiction upon the Authority which did not originally have jurisdiction.Hence, it was submitted that the decision of the Tribunal was withoutjurisdiction. It is to be noted that the plaintiff had filed proceedings beforeCthe Civil Court itself but the same was objected to by the appellant aswell as by the Waqf Board. Thus, it is not conferment of jurisdiction bythe plaintiff voluntarily but by virtue of judicial order which has nowattained finality between parties. The suit was accordingly decided bythe Waqf Tribunal. We do not find that it is open to the appellant to raiseDthe objection that the Waqf Tribunal had no jurisdiction to entertain thesuit in the facts of the present case. Therefore, we do not find any meritin the first argument raised by the learned counsel for the appellant.

15. To appreciate the second argument, the relevant provisions ofSection 83 and sub-section (9) of Section 83 of the Act are extractedEbelow:

“83. Constitution of Tribunals, etc. – (1) The State Governmentshall, by notification in the Official Gazette, constitute as manyTribunals as it may think fit, for the determination of any dispute,question or other matter relating to waqf or waqf property, evictionFof tenant or determination of rights and obligations of the lessorand the lessee of such property, under this Act and define the locallimits and jurisdiction of such Tribunals.

(9) No appeal shall lie against any decision or order whetherGinterim or otherwise, given or made by the Tribunal:

Provided that High Court may, on its own motion or on theapplication of the Board or any person aggrieved, call for andexamine the records relating to any dispute, question or other matterwhich has been determined by the Tribunal for the purpose of

satisfying itself as to the correctness, legality or propriety of suchdetermination and may confirm, reverse or modify suchdetermination or pass such other order as it may think fit.”

16. The judgments referred to by the appellant in Sadhana Lodhand of Patna High Court in Md. Wasiur Rahman are not applicable tothe facts of the present appeal. Sadhana Lodh is judgment whereinan award of the Motor Accident Claim Tribunal was challenged by wayof Writ Petition. This Court held that the Writ Petition was notmaintainable when an alternative remedy is provided under statute.Therefore, the said judgment deals with availability of the writ jurisdictionin view of the remedy of appeal provided. In the present case, the statuteprovides for remedy under proviso of sub-section (9) of Section 83 ofthe Act against an order passed by the Wakf Tribunal. Such remedy isbefore the High Court alone.17. The judgment in Md. Wasiur Rahman arises out of the factwhere the order of the Waqf Tribunal was challenged by way of WritPetition. An objection was raised before the writ court that there was analternative statutory remedy available, therefore, the Writ Petition wasnot maintainable. The learned Single Judge held that petition underArticle 226/227 of the Constitution of India was not maintainable butliberty was given to the petitioners to invoke the jurisdiction in terms ofproviso to sub-section (9) of Section 83 of the Act. The said judgmentdoes not show that any argument was raised that petition under Article226/227 of the Constitution of India could be treated as petition interms of proviso to sub-section (9) of Section 83 of the Act. Therefore,such judgment is also not relevant for the question arising for considerationin the present appeal.

18. perusal of the proviso to sub-section (9) of Section 83 of theAct shows that it confers power on the High Court to call for and examinethe records relating to any dispute, question or other matter which hasbeen determined by the Tribunal for the purpose of satisfying itself as tothe correctness, legality or propriety of such determination. In fact, thestatutory provision is acceptance of the principle that the jurisdiction ofthe High Court under Article 226 or 227 of the Constitution of Indiacannot be curtailed in terms of L. Chandra Kumar v. Union of India& Ors.[13]. The relevant extract reads thus:

A“90. We may first address the issue of exclusion of the power ofjudicial review of the High Courts. We have already held that inrespect of the power of judicial review, the jurisdiction of the HighCourts under Articles 226/227 cannot wholly be excluded. …. Onthe other hand, to hold that all such decisions will be subject to thejurisdiction of the High Courts under Articles 226/227 of theBConstitution before Division Bench of the High Court withinwhose territorial jurisdiction the Tribunal concerned falls will servetwo purposes. While saving the power of judicial review of legislativeaction vested in the High Courts under Articles 226/227 of theConstitution, it will ensure that frivolous claims are filtered outCthrough the process of adjudication in the Tribunal. The High Courtwill also have the benefit of reasoned decision on merits whichwill be of use to it in finally deciding the matter.

91. …We have already emphasised the necessity for ensuringthat the High Courts are able to exercise judicial superintendenceDover the decisions of the Tribunals under Article 227 of theConstitution. In R.K. Jain case [(1993) 4 SCC 119 : 1993 SCC(L&S) 1128 : (1993) 25 ATC 464] , after taking note of thesefacts, it was suggested that the possibility of an appeal from theTribunal on questions of law to Division Bench of High Courtwithin whose territorial jurisdiction the Tribunal falls, be pursued.EIt appears that no follow-up action has been taken pursuant to thesuggestion. Such measure would have improved mattersconsiderably. Having regard to both the aforestated contentions,we hold that all decisions of Tribunals, whether created pursuantto Article 323-A or Article 323-B of the Constitution, will be subjectFto the High Court’s writ jurisdiction under Articles 226/227 of theConstitution, before Division Bench of the High Court withinwhose territorial jurisdiction the particular Tribunal falls.”

19. three Judge Bench in judgment reported as Radhey Shyam& Anr. v. Chhabi Nath & Ors.[14] held that the observations in para 25 ofthe judgment in Surya Dev Rai v. Ram Chander Rai & Ors.[15] to beGnot good law. In Surya Dev Rai, it was held that the order of Civil Courtcould be challenged in petition under Article 226 and that the distinctionbetween Articles 226 and 227 of the Constitution of India stood almostobliterated. This Court in Radhey Shyam held:

14 (2015) 5 SCC 423H15 (2003) 6 SCC 675

“27. … we are of the view that judicial orders of civil courts arenot amenable to writ of certiorari under Article 226. We are alsoin agreement with the view [Radhey Shyam v. Chhabi Nath,(2009) 5 SCC 616] of the referring Bench that writ of mandamusdoes not lie against private person not discharging any publicduty. Scope of Article 227 is different from Article 226.

xxxxxxxxx

29. Accordingly, we answer the question referred as follows:

29.1.Judicial orders of the civil court are not amenable to writjurisdiction under Article 226 of the Constitution.

29.2. Jurisdiction under Article 227 is distinct from jurisdiction underArticle 226.

29.3. Contrary view in Surya Dev Rai [Surya Dev Rai v. RamChander Rai, (2003) 6 SCC 675] is overruled.”

20. Therefore, when petition is filed against an order of the WakfTribunal before the High Court, the High Court exercises the jurisdictionunder Article 227 of the Constitution of India. Therefore, it is whollyimmaterial that the petition was titled as writ petition. It may be noticedthat in certain High Courts, petition under Article 227 is titled as writpetition, in certain other High Courts as revision petition and in certainothers as miscellaneous petition. However, keeping in view the natureof the order passed, more particularly in the light of proviso to sub-section(9) of Section 83 of the Act, the High Court exercised jurisdiction onlyunder the Act. The jurisdiction of the High Court is restricted to onlyexamine the correctness, legality or propriety of the findings recorded bythe Wakf Tribunal. The High Court in exercise of the jurisdiction conferredunder proviso to sub-section (9) of Section 83 of the Act does not act asthe appellate court.

21. We find merit in the argument raised by Mr. Sanyal that thenomenclature of the title of the petition filed before the High Court isimmaterial. In Municipal Corporation of the City of Ahmedabad v.Ben Hiraben Manilal[16], this Court held that wrong reference to thepower under which an action was taken by the Government would notper se vitiate the action, if the same could be justified under some otherpower whereby the Government could lawfully do that act. The Courtheld as under:

A“5. ….It is well settled that the exercise of power, if there isindeed power, will be referable to jurisdiction, when the validityof the exercise of that power is in issue, which confers validityupon it and not to jurisdiction under which it would be nugatory,though the section was not referred, and different or wrongsection of different provisions was mentioned. See in this connectionBthe observations in Pitamber Vajirshet v. Dhondu Navlapa [ILR(1888) 12 Bom 486, 489] . See in this connection also theobservations of this Court in the case of L. Hazari MalKuthiala v. ITO, Special Circle, Ambala Cantt. [AIR 1961 SC200 : (1961) 1 SCR 892 : (1961) 41 ITR 12, 16 : (1961) 1 SCJ 617]CThis point has again been reiterated by this Court in the caseof Hukumchand Mills Ltd. v. State of M.P. [AIR 1964 SC 1329: (1964) 6 SCR 857 : (1964) 52 ITR 583 : (1964) 1 SCJ 561] whereit was observed that it was well settled that wrong reference tothe power under which action was taken by the Government wouldnot per se vitiate that action if it could be justified under someDother power under which Government could lawfully do that act.See also the observations of the Supreme Court in the case of NaniGopal Biswas v. Municipality of Howrah [AIR 1958 SC 141 :1958 SCR 774, 779 : 1958 SCJ 297 : 1958 Cri LJ 271].”22. Later, in Pepsi Foods Ltd., this Court held that nomenclatureEunder which the petition is filed is not quite relevant and it does not debarthe Court from exercising its jurisdiction which otherwise it possesses. Ifthe Court finds that the appellants could not invoke its jurisdiction underArticle 226, the Court can certainly treat the petition as one under Article227 or Section 482 of the Code. This Court held as under:F

“26. Nomenclature under which petition is filed is not quite relevantand that does not debar the court from exercising its jurisdictionwhich otherwise it possesses unless there is special procedureprescribed which procedure is mandatory. If in case like thepresent one the court finds that the appellants could not invoke itsGjurisdiction under Article 226, the court can certainly treat thepetition as one under Article 227 or Section 482 of the Code. Itmay not however, be lost sight of that provisions exist in the Codeof revision and appeal but some time for immediate relief Section482 of the Code or Article 227 may have to be resorted to forcorrecting some grave errors that might be committed by theHsubordinate courts. The present petition though filed in the High

Court as one under Articles 226 and 227 could well be treatedunder Article 227 of the Constitution.”

23. Therefore, the petition styled as one under Article 226 wouldnot bar the High Court to exercise jurisdiction under the Act and/or underArticle 227 of the Constitution. The jurisdiction of the High Court toexamine the correctness, legality and propriety of determination of anydispute by the Tribunal is reserved with the High Court. The nomenclatureof the proceedings as petition under Article 226 or petition underArticle 227 is wholly inconsequential and immaterial.

24. The judgment referred to by Mr. Sanyal in Sir HukamchandMannalal & Co. that member of an HUF is competent to enter into acontract with stranger does not support the argument raised. It has beenheld that if member of the HUF enters into contract with stranger, hedoes so in his individual capacity. It was held as under:

“5. The Indian Contract Act imposes no disability upon membersof Hindu undivided family in the matter of entering into contractinter se or with stranger. member of Hindu undivided familyhas the same liberty of contract as any other individual: it isrestricted only in the manner and to the extent provided by theIndian Contract Act. Partnership is under Section 4 of thePartnership Act the relation between persons who have agreed toshare the profits of business carried on by all or any of themacting for all: if such relation exists, it will not be invalid merelybecause two or more of the persons who have so agreed aremembers of Hindu undivided family. …….”

25. This Court has quoted with the approval of the judgment reportedas P.K.P.S. Pichappa Chettiar & Ors. v. Chockalingam Pillai & Ors.[17]wherein it has been held that when manager of joint family entersinto partnership, that would not ipso facto makes the other member ofhis family as partners. The Court held as under:

“In their Lordships’ opinion, the law in respect of the matter nowunder consideration is correctly stated in Mayne’s Hindu Law (9thEdn.) at page 398, as follows:

“Where managing member of joint family enters into apartnership with stranger the other members of the family donot ‘ipso facto become partners in the business so as to clothe

17 AIR 1934 Privy Council 192

them with all the rights and obligations of partner as definedby the Indian Contract Act. In such case the family as unitdoes not become partner, but only such of its members as infact enter into contractual relation with the stranger: thepartnership will be governed by the Act.”

BIn this passage reference is made to the Indian Contract Act, whichwould be applicable to the facts of this case. It is to be noted thatthe sections referring to partnership in the said Act have beenrepealed and are now embodied in the Indian Partnership Act,1932. Even assuming, therefore, that Virappa was the manager ofhis joint Hindu family in 1908, his entering into partnership with theCChetties in that year would not “ipso facto” make the othermembers of his family partners …”

26. The next question is as to whether Shri Devendra Prasad Sinhawas running the joint family business and/or whether the act of surrenderof possession was that of joint Hindu family business or only of surrenderDof tenancy; or that as Karta, surrender of tenancy was for the benefitof the joint Hindu family.

27. The plaintiff has pleaded that when father of the plaintiff joinedservice, the shop was being run through the servants and that the plaintiffbegan to run the hotel since 1988. Thereafter, the disputes cropped upEover the management and accounting of the income and the hotel wasclosed for many years. The plaintiff has pleaded as under:

“4. That when the grandfather of the plaintiff fell ill the shop wasbeing looked after and began to run by his eldest son SurendraKumar and Surendra Kumar began to pay rent to Waqf BoardFunder receipt granted to him in the name of Devendra PrasadSinha, which are all with Surendra Kumar, later when SurendraKumar joined the Service the shop is bring run through the servantbut later on the Hotel began to run by the plaintiff since 1988 andthereafter dispute cropped up over the management and accountingof income and as such the Hotel became closed and remainedGclosed for several years.”

28. The High Court held that the existence of joint family isestablished from the Ration Card issued on 2.4.1949 and from thepayment of rent for the period 1947–1955 that the premises were let outto joint family. The High Court also rejected the surrender of tenancy onH

the ground that it was without the consent of other coparceners. It washeld as under:

“37. …After death of Ram Sharan Ram, Ram Sewak Ram becamethe Karta of the joint Hindu family of which defendant No. 1, histhree sons Surendra Kumar, father of the plaintiff, Dilip Kumar,Defendant No. 2, Suresh Kumar, plaintiff and his three brotherswere the members. Existence of the joint family of which RamSewak Ram was the Karta is established from perusal of the RationCard issued under the order of the Government by the Secretaryto the Government, Exhibit-9/A dated 2.12.1949. After death ofRam Sharan Ram, Ram Sewak Ram having become Karta of thejoint family managed the affairs of the joint family including thehotel business in the suit premises let out to the joint family by theMutawalli of the Wakf Estate which owned the suit premises as isevident from perusal of 46 rent receipts (Exhibits-8 to 8/45) grantedby the Bihar State Sunni Wakf Board through Mutawalli Md.Suleman for the period 1947-1955 indicating payment of rent forthe suit premises by the tenant Ram Sewak Ram.

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43. Rent receipts, Water Board receipt and electricity bill receiptaforesaid obtained by Defendant No. 1 are subsequent to the deathof the original tenant i.e. Karta of the joint family Ram SewakRam from whom Defendant No. 1 succeeded to the tenancy alongwith the other coparceners of the joint family. On the basis of thesubsequent receipts it cannot be said that the tenancy is createdonly in favour of Defendant No. 1 ignoring the other descendants/successors of Ram Sewak Ram. Reference in this connection isalso required to be made to the statement of Defendant No. 4who examined himself as D.W. 2 paragraph 24 wherein he hascategorically stated that in the Wakf Board there is no Kirayanamaexecuted in favour of Devendra Babu, Defendant No. 1.

44. The case set out by the defendants regarding surrender letterdated 31.5.96 is also fit to be rejected as after the death of RamSewak Ram, the Karta of the Hindu undivided family, DefendantNo. 1 became the Karta of the Hindu undivided family and as perthe tenets of Hindu Law Defendant No. 1 was not entitled tosurrender the tenanted premises without the consent of the othercoparceners of the Hindu undivided family….

A45. In view of my findings above, there is no difficulty in concludingthat the suit premises was let out to Ram Sewak Ram who carriedjoint family hotel business in the said premises until his death i.e. inJanuary, 1960 whereafter Defendant No. 1 became the Karta ofthe family and succeeded to the joint family business including thesuit premises along with his sons and grandsons constituting theBjoint family, as such, without the consent of the other members ofthe joint family could not have surrendered the tenancy in favourof Mutawalli of the Wakf Estate through the so-called surrenderletter dated 31.5.1996.”

29. Thus, even if male member had taken premises on rent, he isCtenant in his individual capacity and not as Karta of Hindu UndividedFamily in the absence of any evidence that Karta was doing the businessfor and on behalf of Joint Hindu Family. The High Court has presumedthe existence of the joint family of which Ram Sewak Ram was said tobe the Karta from perusal of the Ration Card issued on 2.12.1949. TheDHindu Joint Hindu Family cannot be presumed to be in existence only onthe basis of Ration Card unless there is evidence that the funds of jointHindu Family were invested in the business in the tenanted premises.

30. The Allahabad High Court in Ram Awalamb held that notionsof Hindu law, or Mohamedan law, or any other personal law cannot beEimported into the rights created by the U.P. Zamindari Abolition and LandReforms Act. The Court held as under:

“8. Hindu joint families have existed from times immemorial andthey exist even now. However, it is by no means necessary thatevery Hindu Joint family should be possessed of joint familyFproperty also. Where any property is ancestral or it is acquired byall the members of joint Hindu family or after having been acquiredby one member of the joint family only it is thrown in the commonstock it is regarded to be joint family property or coparcenaryproperty. Until partition takes place, or only one member of thefamily is left, without having any male issue, the coparcenaryGproperty remains with the family and upon the death of any onemember only his interest devolves on the surviving coparceners.The Karta or manager of the family alone has the right to transferthe property either for legal necessity or for the benefit of theestate.

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45. Our conclusions can, therefore, be briefly summarised asfollows:—

(1) Where members of joint Hindu family hold bhumidhari rightsin any holding, they hold the same as tenants in common and notas joint tenants. The notions of Hindu law cannot be invoked todetermine that status.

(2) Where in certain class of tenancies, such as permanent tenureholders, the interest of tenant was both heritable and transferablein limited sense and such tenancy could, prior to theenforcement of the Act, be described as joint family property orcoparcenary property, the position changed after Act 1 of 1951came into force. Thereafter the interest of each bhumidhar, beingheritable only according to the order of succession provided in theAct and transferable without any restriction other than mentionedin the Act itself, must be deemed to be separate unit.

(3) Each member of joint Hindu family must be considered to bea separate unit for the exercise of the right of transfer and also forthe purposes of devolution of bhumidhari interest of the deceasedmember.

(4) The right of transfer of each member of the joint Hindu familyof his interest in bhumidhari land is controlled only by Sec. 152 ofthe Act and by no other restriction. The provisions of Hindu lawrelating to restriction on transfer of coparcenary land, e.g., existenceof legal necessity, do not apply.”

31. We thus find that the High Court has committed basic errorof law and fact that the payment of rent or the Ration Card proves thatthe tenant was carrying business as Joint Hindu Family Business. Therecan be presumption of Hindu joint family property if the property hasbeen acquired by the male member or if the same has been treated asjoint Hindu family. But no such presumption is attached to businessactivity carried out by an individual in tenanted premise.

32. perusal of the facts on record would show that it was acontract of tenancy entered upon by great grandfather of the plaintiff.Even if the great grandfather was maintaining the family out of the incomegenerated from the hotel business, that itself would not make the otherfamily members as coparceners in the hotel business. It was the contractof tenancy which was inherited by the grandfather of the plaintiff who

Alater surrendered it in favour of the Wakf Board. The tenancy was anindividual right vested with the grandfather of the plaintiff who wascompetent to surrender it to the landlord. The High Court has clearlyerred in law by holding that since the grandfather was tenant, the tenancyis joint family asset. The contract of tenancy is an independent contractthan the joint Hindu family business.B

33. In fact, the evidence produced by the plaintiff is payment ofrent by either Ram Sewak Ram or by the grandfather of the plaintiff.Such payment of rent is not indicative of the fact that the hotel businesswas by the joint Hindu family. This Court in judgment reported as G.Narayana Raju (Dead) by his Legal Representative v. G. ChamarajuC& Ors.[18], held that there is no presumption under Hindu Law that businessstanding in the name of any member of the joint family is joint businesseven if that member is the manager of the joint family, unless it could beshown that the business in the hands of the coparcener grew up with theassistance of the joint family property or joint family funds or that theDearnings of the business were blended with the joint family estate. ThisCourt held as under:

“3. … It is well established that there is no presumption underHindu Law that business standing in the name of any member ofthe joint family is joint business even if that member is the managerEof the joint family. Unless it could be shown that the business inthe hands of the coparcener grew up with the assistance of thejoint family property or joint family funds or that the earnings ofthe business were blended with the joint family estate, the businessremains free and separate. …….

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6. … It is well-established doctrine of Hindu Law that propertywhich was originally self-acquired may become joint property if ithas been voluntarily thrown by the coparcener into joint stockGwith the intention of abandoning all separate claims upon it. Thedoctrine has been repeatedly recognised by the Judicial Committee(See Hurpurshad v. Sheo Dayal, (1876) 3 Ind App 259 (PC) andLal Bahadur v. Kanhaia Lal, (1907) 34 Ind App 65 (PC). But thequestion whether the coparcener has done so or not is entirely

question of fact to be decided in the light of all the circumstancesof the case. It must be established that there was clear intentionon the part of the coparcener to waive his separate rights andsuch an intention will not be inferred merely from acts which mayhave been done from kindness or affection (See the decision inLala Muddun Gopal v. Khikhindu Koer, (1891) 18 Ind App 9 (PC).For instance, in Naina Pillai v. Daivanai Ammal, AIR 1936 Madras177 where in series of documents self-acquired property wasdescribed and dealt with as ancestral joint family property was notsufficient but an intention of the coparcener must be shown towaive his claims with full knowledge of his right to it as his separateproperty. The important point to keep in mind is that the separateproperty of Hindu coparcener ceases to be his separateproperty and acquires the characteristics of his joint familyor ancestral property, not by mere act of physical mixing withhis joint family or ancestral property, but by his own volitionand intention, by his waiving or surrendering his special rightin it as separate property. man’s intention can be discoveredonly from his words or from his acts and conduct. When his intentionwith regard to his separate property is not expressed in words, wemust seek for it in his acts and conduct. But it is the intention thatwe must seek in every case, the acts and conduct being no morethan evidence of the intention. …” (Emphasis Supplied)

34. This Court in judgment reported as P.S. Sairam & Anr. v.P.S. Rama Rao Pissey & Ors.[19] following the above said judgment heldthat so far as immovable property is concerned, there would be apresumption that the same belongs to joint family, provided it is provedthat the joint family had sufficient nucleus at the time of its acquisition,but no such presumption can be applied to business. It was held asunder:

“7. Crucial question in the present appeal is as to whether businesswhich was conducted by defendant No. 1 was his separatebusiness or it belonged to joint family, consisting of himself and hissons. It is well settled that so far as immovable property isconcerned, in case the same stands in the name of individualmember, there would be presumption that the same belongs tojoint family, provided it is proved that the joint family had sufficient

Anucleus at the time of its acquisition, but no such presumption canbe applied to business……………”

35. Thus, mere payment of rent by great grandfather or by thegrandfather of the plaintiff raises no presumption that it was joint Hindufamily business. The High Court has clearly erred in law to hold so withoutBany legal or factual basis.

36. Even if Devendra Prasad Sinha is considered to be representingthe joint Hindu family while carrying out hotel business in the tenantedpremises, the question as to the act Karta to surrender of tenancy wasfor the benefit of the joint Hindu family. The powers of Karta of JointCHindu Family have been described in 22[nd] Edition of Hindu Law by Mulla(para 240) inter alia to the following effect:

“Alienation by manager of coparcenary property for legalnecessity. – (1) The power of the manager of joint Hindu familyto alienate the joint family property is analogous to that of managerfor an infant heir, as defined by the Judicial Committee.

(2) The manager of joint Hindu family has the power to alienatefor value, joint family property, so as to bind the interest of bothadult and minor coparceners in the property, provided that thealienation is made for legal necessity, or for the benefit of theestate. manager (not being the father) can alienate even theshare of minor coparcener to satisfy an antecedent debt of theminor’s father (or grandfather) when there is no other reasonablecourse open to him (Dharmaraj Singh v. Chandrasekhar Rao, (1942)Nag 214). It is not necessary to validate the alienation that theexpress consent of the adult members should have been obtained.

In Suraj Bunsi Koer v. Sheo Proshad, (1879) 6 IA 88, p. 101, theJudicial Committee stated that it was not clearly settled whetherwhere an alienation is made by manager for legal necessity,but without the express consent of the adult coparceners, thealienation is binding on them. However, in later decisions of theGsame tribunal, the view taken is that if legal necessity is established,the express consent of the adult coparceners is not necessary(Sahu Ram v. Bhup Singh, AIR 1917 PC 61). As to alienation bymanager for joint family business.

Where any such transaction has been entered into for legal necessityby manager, it would be deemed to be on behalf of the family

and would bind it. The position is not worsened by the fact that ajunior member joins the transaction and the joining by him is abortiveby reason of his minority (Radha Krishnadas v. Kaluram, AIR1967 SC 574).”

37. The pleaded stand of the Plaintiff is that the hotel was closedfor several years. Therefore, the liability to pay monthly rent continuedto accrue upon karta - Devendra Prasad Sinha. The question is as towhether, in these circumstances, on account of cessation of activities ofrunning of the hotel, the act of the surrender of tenancy is in fact for thebenefit of the joint family. The learned High Court found that the letter ofsurrender was not reliable or tenable. The executor of the surrenderletter has admitted such surrender letter in the written statement andwhile appearing as witness as DW-5. The Mutawalli Md. Salimuddinhas also accepted the surrender letter in the written statement and whileappearing in the witness box as DW-10. Merely for the reason thatsignatures in the translated copy do not tally with the Urdu copy is notsufficient to hold the surrender letter as unreliable as the translation canbe incorrect but the correctness of the document in has not been disputedby the executor or by the acceptor. The said document could not havebeen said to be unreliable on the basis of the statement of the plaintiffwho is not party to such transaction. It is one thing to say that thedocument is unreliable and another to say that the document does notbind the plaintiff. We have no hesitation to hold that the document wasvalidly proved and accepted by the Wakf Board. Therefore, the act ofsurrender of tenancy was for the benefit of the Joint Hindu family.

38. We thus hold that the order of the High Court is not sustainablefor the reasons recorded above. Consequently, the present appeal isallowed. The order of the High Court is set aside and that of the WakfTribunal is restored with no order as to costs.

Nidhi Jain

Appeal allowed.