Madras High Court
Orders Reserved On vs M.N.Abu Salih Sahib on 21 August, 2017
Author: V.M.Velumani
Bench: V.M.Velumani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.08.2017 CORAM: THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P.(NPD)No.3383 of 2009 Orders Reserved on Orders pronounced on 28.07.2017 21.08.2017 A.Syed Muhaideen Sahib .. Petitioner Vs. M.N.Abu Salih Sahib .. Respondent Prayer: Civil Revision Petition filed under Section 83 of the Wakf Act, 1995, against the fair and decretal order dated 31.08.2009 made in W.O.P.No.10 of 2007 on the file of the Wakf Tribunal (Subordinate Court) Nagapattinam. For Petitioner : Mr.Srinath Sridevan For Respondent : Mr.A.Thameem Mohideen for Mr.T.R.Rajaraman ORDER
The Civil Revision Petition is filed against the fair and decretal order dated 31.08.2009 made in W.O.P.No.10 of 2007 on the file of the Wakf Tribunal (Subordinate Court) Nagapattinam.
2. The petitioner filed W.O.P.No.10 of 2007 on the file of the Wakf Tribunal (Subordinate Court) Nagapattinam against the respondent under Section 83(2) of the Wakf Act, 1995, for declaration to declare that the petitioner is also entitled to jointly manage and administer the petition mentioned Wakf and its properties, to perform moulathu, haththam, fathiha ceremonies in order to fulfill and continue the object and to improve the petition mentioned Wakf, based on the Wakf Nama executed by Fathima Sulthan Beevi,
3. The case of the petitioner is as follows:
(i) According to the petitioner, the original Wakfi (executant) is Fathima Sulthan Beevi. Her elder sister is Syed Kathija Nachiar and her younger sister is Umma Sahibu Ammal. The respondent is the great grand son of the younger sister of the original Wakfi. The petitioner is great grand son of elder sister of original wakfi, he being the descendant of the elder sister of the original Wakfi. The original wakfi (executant) created a Wakf Nama for the purpose to perform moulathu, haththam, fathiha ceremonies in order to fulfill and continue the object and to improve the petition mentioned Wakf.
(ii) As per the Wakf deed, the brother of the original wakfi and her son were appointed as first Muthawallis. After their lifetime, their male legal heirs will be Muthawallis. If there is no male descendant, male descendants of the female heirs will be the Muthawalli. Both brother and son of the original wakfi Fathima Sulthan Beevi died unmarried. Now the respondent, who is the great grand son of younger sister of the original wakfi is managing the Wakf. The petitioner, who is the great grand son of the elder sister of the original wakfi, is also entitled to manage the Wakf.
(iii) According to the petitioner, the income and wealth of the Wakf must always be preserved and the Wakf deed provides for improving the property by new construction with the help of the donors. As per the Wakf deed, two persons must manage and administer the properties of the Wakf. The first Muthawalli viz., P.M.Abdul Salih Alim Sahib, who is the brother of the original wakfi died unmarried. The son of the original wakfi viz., Mohammed Abu Talib also died unmarried. The petitioner and respondent, who are the descendants of the female heirs of the original executant became entitled to manage the Wakf as muthawallis.
(iv) The respondent is making exclusive provision for his family, which is against the object of the Wakf deed and the respondent is not performing the charities mentioned in the Wakf deed and he is not allowing the petitioner also to perform the charities. The donors are willing to contribute the donation to improve the properties of the Wakf.
(v) The petitioner sent a notice through his advocate to the respondent on 11.08.2006. The respondent sent a reply dated 17.08.2006 denying the right of survivorship as descendant of the executant Fathima Sulthan Beevi. The petitioner issued a rejoinder dated 30.08.2006 and the respondent sent a reply dated 11.09.2006 denying the recitals of the Wakf deed, but admitted that the petitioner is a beneficiary. On the above facts, the petitioner filed the said W.O.P. for the relief sought for in the petition.
4. The respondent filed counter statement and denied various averments made in the petition. According to the respondent, the petitioner is not connected with Wakf. The petitioner's great grand mother/Syed Kathija Nachiyar, elder sister of the executant Fathima Sulthan beevi predeceased her, when the brother of wakfi died in the year 1933. The great grand mother of respondent, who is the younger sister of wakfi, was alive at that time. In the circumstances, the petitioner has no connection with the Wakf and he has no locus-standi to file this petition. The petitioner filed the petition only to cause hardship to the respondent, who is managing and administering the Wakf in a good manner. The respondent also submitted that he is carrying on all the charities mentioned in the Wakf deed for the past 40 years, he is submitting the account to the Wakf Board and there is no mismanagement. The petitioner filed the petition before the Tamil Nadu Wakf Board in the year 1975, 30 years back. The petitioner suppressed the order passed by the Wakf Board. The petitioner has not made Wakf Board as a party to the present W.O.P. The present W.O.P. is bad for non joinder of the Wakf Board.
5. Before the Tribunal, the petitioner examined himself as P.W.1 and marked seven documents as Exs.P1 to P7. The respondent examined himself as R.W.1 and marked three documents as Exs.R1 to R3.
6. The Wakf Tribunal considering the pleadings, oral and documentary evidence, dismissed W.O.P. holding that as per Ex.R1/order of the Wakf Board dated 28.01.1976, the great grand mother of the respondent inherited half share as a sharer and other half share as a residuary excluding all other descendants and that the petitioner is not entitled to file a fresh petition without filing the appeal against Ex.R1/order dated 28.01.1976 passed by the Wakf Board. The present W.O.P. is barred by the principles of resjudicata. The petition is also bad for non joinder of Wakf Board.
7. Against the order of dismissal dated 31.08.2009 made in W.O.P.No.10 of 2007, the present civil revision petition is filed by the petitioner.
8. The learned counsel for the petitioner submitted that Section 90 of the Wakf Act has nothing to do with the non joinder of parties. It imposes an obligation on the Court and non issuance of notice is not fatal to the proceedings. When Wakf Board is made as a party, the Court must issue notice to the Wakf Board at the cost of the petitioner. In the present case, Wakf Board is not a party before the Tribunal and therefore, no notice is necessary to the Wakf Board. The Wakf Board by order dated 28.01.1976/Ex.R1 dismissed the petition filed by the petitioner on the ground that the Wakf Board has no jurisdiction to hear the case. When the earlier petition was not decided on merits, the subsequent petition is not hit by the principles of resjudicata. The Muslim law of inheritance is not applicable to the Wakf and it is not correct to state that the death of Syed Kathija Nachiar before the death of original wakfi, her descendants are excluded.
9. In support of his contentions, the learned counsel for the petitioner relied on the following judgments, wherein it has been held as follows:
(i) The Division Bench Judgment of the Andhrapradesh High Court made in S.A.No.1014 of 2016, dated 21.04.2017 (Mohammed Iftekhar Uddin v. Imdadgha complex, Sarai Mosque wakf, represented by its Secretary Mohammed Rafi, D.No.76-8-18, crambay road, bhavani puram, Vijayawada and another);
10. The 3rd question of law revolves around Section 90(1) and (3) of the Act. Heavy reliance is placed by the learned counsel for the appellant upon the judgment of the Division Bench of the Calcutta High Court in Sayed Hassan Ali v. Mahammed Sahidul Islam , wherein a Division Bench of the Calcutta High Court held that in the light of the prescription contained in sub-section (3) of Section 90 issuance of a notice before institution of the suit was mandatory.
11. But I do not think that the decision of the Calcutta High Court can be applied to the facts of the present case. Section 90 (1) requires the Court or Tribunal, in every case relating to title or possession of Wakf property or the right of a Mutawali or beneficiary, to issue notice to the Board. An obligation was imposed under Section 90(1) upon the Wakf Tribunal or Court. The consequence of non-compliance with the obligation under sub-section (1) is spelt out in sub-section (3). Sub-section (3) merely states that in the absence of a notice under sub-section (1), any decree passed can be declared as void if the Board applies to the Court in this behalf. Sub-section (3) of Section 90 does not confer a right upon the tenant to come up with a plea that if no notice is issued under Section 90(1), the decree becomes void. Therefore, it is not for the appellant to say that the failure to issue notice makes the decree void. It is for the Wakf Board to say that. In any case, the object behind Section 90 is to protect Wakf as well as Wakf property. The object behind the Managing Committee of a Wakf evicting a tenant is also to protect the interest of the Wakf. There is no conflict of interest between the respondent/plaintiff and the Wakf Board. Hence the third question of law is also to be answered against the appellant.
(ii) Order of this Court dated 09.03.2016 made in C.R.P.(PD)No.1555 of 2009 (Mohideen Andavar Pallivasan, represented by its President Muktavalli, C.K.U.Abdul Karim, Mulsim street, Valangaiman 612 884, Tiruvarur District and others v. A.Shajahan and others);
6. A reading of the said Section will make it clear that prior notice is contemplated only when a suit (O.P) is filed against the Wakf Board. In case the Wakf Board is not a party, Section 89 of the Wakf Act, 1995 will not get attracted. However, learned counsel for the petitioner would refer to Section 90 of the Wakf Act, 1995 and contend that even in cases wherein Wakf Board is not a party, service of notice on the Wakf Board is contemplated and that since no notice was served on the Wakf Board as per Section 90, the W.O.P should have been rejected by the Tribunal.
7. This Court is not in a position to accept the above said contention of the learned counsel for the petitioner. Section 89 contemplates pre-suit notice as a condition for entertaining the suit(O.P), whereas Section 90 contemplates post-suit notice to the Wakf Board even in cases wherein the Wakf Board is not made a party provided the other conditions stipulated therein are present. Section 90 of the Wakf Act mandates the Court / Tribunal to issue notice at the cost of the plaintiff / Petitioner. Hence, the failure of the Court / Tribunal to issue such notice at the cost of the plaintiff cannot be the ground on which the O.P. can be sought to be rejected.
(iii) (1998) 8 SCC 671 (Tara and others v. Director, Social Welfare and others);
2. .. .. In view of the conclusion rightly reached by the Labour Court that the applications were not maintainable under Section 33-C(2), its other findings relating to the status and nature of employment of the anganwadi workers/helpers were wholly uncalled for. All such findings are, therefore, not to be construed as deciding any point relating to the status of the appellants.
(iv) 1981-94-LW 243 (E.K.Venkaimarbon v. Dakshinamoorthy);
38. The appellate authority in its order did not stop short with saying that the application did not lie. The order contained a further remark that there was no sufficient cause. 1 regard this is an off-the-cuff finding, which the appellate authority had permitted itself to make only because it felt quite sure all the while that the application itself had to be dismissed as incompetent. I think this is not a proper way of disposal. If a judicial authority does not wish to limit its decision to a preliminary question as to jurisdiction or as to the competence of proceeding before it, but prefers to enter a finding on the merits as well, it is its duty to do so by going the whole-hog with the issues on merits. It cannot render less than what it should do by way of a finding on the merits, merely because it is already committed to the view that the proceedings do not lie anyway. In this sense, the finding of the appellate authority in this case that the appellant had not made out sufficient cause is not a proper finding and no effect should be given to it."
(v) Unreported judgment of the Patna High Court made in appellate decree No.180 of 1996 dated 15.04.2009 (Kesho singh @ Keshaw singh and others v. Ashwani Kumar singh @ Ashwani K);
17. Section 57 of the Waqf Act, 1954 as well as Section 90 of the Waqf Act, 1995 specifically provide that in every suit or proceeding relating to the title or possession of a waqf property, the court or the tribunal hearing the said case shall issue notice to the Board at the cost of the party instituting such suit or proceeding. In the said circumstances, when there is specific pleadings and evidence of the parties in the instant case with respect to a waqf property in the disputed land as found by the lower appellate court, it was mandatory for the learned court of appeal below that before deciding the title appeal on the said issue regarding waqf property it should have issued notice to the Board concerned, namely Bihar State Sunni Waqf Board through its Secretary, as it transpires in the instant case that the vendors of both the parties belonged to Sunni Sect of Muslims. Only thereafter the said issue should have been decided, along with the questions of the limit of the said Dargah as well as the right of Quadir Sah and his heirs and successors over Fakiranadar land, as no title should be conferred to any of the two parties to the suit in a mock litigation, if claim of both sets of parties are found to be based on illegal deeds executed by persons having no title at all.
(vi) (1912) 17 Indian cases P.124, order dated 16.09.2012 (Syed Gaffur Saheb and others v. Syed Moosa Saheb and another);
4. The plaintiff has not proved the allegation in the plaint and there is no finding in his favour. No other mode of succession having been set up, and both parties conceding that the right of management descends according to the laws of inheritance, the only question being whether it descends per capita or per stirpes, we are of opinion that succession must be governed by the Muhammadan law of inheritance. See also the case of Kunhi Bivi v. Abdul Aziz 6 M.k 103. The plaintiff is accordingly entitled to succeed his father and the defendants are only entitled to take their father's share. This view is supported by the authorities cited by Wallis, J., Macnaughten p. 341, Wilson's Digest, II Edition, 372, and Ameer Ali, Volume I, p. 426 (3rd Edition). The general statement in Macnaughten, p. 339, that charitable donations should be distributed among the heirs of the departed saint is not applicable to the present case which is not a case of succession to the departed saint.
(vii) AIR 1939 PC 185, Privy Council Appeal No.2 of 1936, dated 23.05.1939 (Saadat Kamel Hanum v. Attorney-General, Palestine);
12. With great respect to those learned Judges who seem to have thought that the example given in Art.1667 imports a special rule applicable to cases where the phrase is employed to qualify the order of succession laid down by the wakf, their Lordships think that it is outside the proper scope of an illustration or example to convey special legislation for a particular type of case. Its function, on the contrary, is to show how the principle already enunciated is to be applied, or how the particular facts of the case supposed come under the principle. The natural approach to the example is that the case is only put as an illustration of a right which has not accrued before a certain date, and without the intention of conveying any implication that the case supposed is necessarily different in principle from many other cases. A wakf is not governed by rules against perpetuity, and successive future life-interests in favour of unborn persons are valid by the Mahomedan law of wakf. The special rule from generation to generation has no exceptional effect to make the particular descendant whose interest accrues thereunder take by purchase and not by limitation. The effect is to make A take instead of B, or to make A take a different share than he would otherwise have taken. The particular example given may be one in which all the beneficial interests happen to arise at one and the same time. It looks as if the draftsman had in contemplation a case where descendants were to take per capita subject to the condition, though the condition may be applied equally well to qualify a stirpital order of succession (cf. Macnaghten, op.cit., p.342, Wison's Anglo-Muhammadan Law, Edn. 6, not before children of other beneficiaries. But this special feature of the example given is not the point of the example. The right of A to a share of the income may arise according to any order of succession appointed by the wakf. It may arise on his birth, on the death of his father or on the complete extinction of the previous generation. For purposes of putting it in suit it is a new right when it accrues. As the first of the three examples given under Art. 1667 is that of a sale, with a stipulation for payment of the price in future and not at once; so the second is that of a beneficial interest which arises when the previous generation becomes extinct and not before; and the third is a case, not of prompt but deferred dower. These may well be intended as familiar types of case under Article 1660.
(viii) 1967 (2) MLJ 218 (Umar Lebbai v. Ambasamudram Taluk Inam, Pottalpuddur Mohideen Andavar, Pallivasal Managing Committee);
15. In Mulla's Mahommedan Law, fifteenth edition (1961), paragraph 200, this is what is stated:
Succession among descendants;-Where a wakf is made for the benefit of the settlor's descendants, but no rules of succession are laid down in the deed of wakf the descendants take per stirpes, and not per capita (Macnaghten, 341; Sayed Mohammed Ali v. Sayad Gobar Ali (1881) I.L.R.6 Bom. 88, and males and females take equal shares (Macnaghten, 342; Baillie, 553, See Abdul Ganne v. Hussan Miya (1873) l0 Bom. H.C.R. 7; Shekh Karimodin v. Nawab Mir Sayad Alamkhan (1885) I.L.R. 10 Bom. 119).
The Allahabad High Court has held that as each line branches off, the shares should be divided between the various branches, but in the same branch the nearer should exclude the more remote. .. ..
10. Per contra, the learned counsel for the respondent submitted that by order dated 28.01.1976, the Wakf Board has clearly stated that the descendants of Syed Kathija Nachiar are not entitled to inherit the Wakf properties on the ground that she predeceased her sister, the original wakfi Fathima Sulthan Beevi. The younger sister Umma Sahibu Ammal was alive, when first Muthawalli died. As per the Muslim law of inheritance, only the descendants of the younger sister of the original wakfi are entitled to manage the Wakf and its properties. The Wakf Board in Ex.R1 order dated 28.01.1976 further held that there is no mismanagement of Wakf or its income. These findings were rendered on merits by the Wakf Board. The petitioner also filed a petition under Sections 44 and 45 of the Wakf Act for a declaration that the petitioner and his mother are lawful trustees and for other reliefs. The said relief was rejected on the ground that such a relief is not maintainable under Sections 44 and 45 of the Wakf Act, when there is a specific provision for claiming the said relief. The petitioner did not challenge the said order. The contention of the learned counsel for the petitioner that the said petition was not decided on merits is contrary to the facts. The Wakf Board decided the petition filed by the petitioner on merits and by the order dated 28.01.1976, it has held that the descendants of Syed Kathija Nachiar, the elder sister of Fathima Sultham Beevi, are excluded from the management of the Wakf. The petitioner is seeking very same relief in the present petition, which is hit by the principles of resjudicata. Only the Wakf Board has power to appoint Muthawalli and the Wakf Tribunal has no power to appoint any Muthawalli. The petitioner only can initiate a suit for the relief sought for in the petition. In view of the nature of the relief sought for by the petitioner, the Wakf Board is a necessary party, the petitioner can file a petition only after issuing prior notice to the Wakf Board and as per Section 89 of the Wakf Act, the said notice is mandatory.
11. In support of his contentions, the learned counsel for the respondent relied on the following judgments, which has been held as follows:
(i) AIR 1966 Calcutta 68 (The Commissioner of Wakfs, West Bengal v. Ayesa Bibi and others);
12. .. .. I am of the opinion that where the Commissioner of Wakf is himself a party defendant, in a suit in respect of a Wakf property, notice under Section 70(1) to the Commissioner need not be given, for the simple reason that being himself a party defendant the notice of the suit is given to him through the summons that is served on him notifying the filing of the suit and the contents of the plaint. Notice under Section 70(1) of the Bengal Wakf Act ensures that a suit or a proceeding in respect of any Wakf property must be with notice and knowledge of the Commissioner. The idea is clear. The Commissioner is a guardian of the Wakfs in this state. Once that view is taken the consequence stated in Sub-section (4) of the Section is clear. Any decree or order which is made without such notice as contemplated under Section 70(1) of the Act shall be declared void by the court. The court has no other option.
(ii) (2006) 10 SCC 696 (M.P.Wakf Board v. Subhan Shah (dead) by legal heirs and others);
28. The Tribunal had been constituted for the purposes mentioned in Section 83 of the 1995 Act. It is an adjudicatory body. Its decision is final and binding but then it could not usurp the jurisdiction of the Board. Our attention has not been drawn to any provision which empowers the Tribunal to frame a scheme. In absence of any power vested in the Tribunal, the Tribunal ought to have left the said function to the Board which is statutorily empowered therefor. Where a statute creates different authorities to exercise their respective functions thereunder, each of such authority must exercise the functions within the four corners of the statute.
(iii) 2010 (4) CTC 516 (The Secretary, Tamil Nadu Wakf Board, Santhome High road, Madras-600 004 v. Kancheepuram Oili Mohamed-Pettai Labbai Jumma Masjid, by its Muthavalli, V.K.Abdul Khader sahib, No.60-B, road street, oil mohamed pattai, Kancheepuram and others);
28. In regard to the plea of the Appellant/10th Defendant that issuance of notice to the Appellant/Wakf Board is a condition precedent to the filing of the suit, this Court points out that new Section 89 (old Section 56) of the Wakf Act, 1995, has not undergone any change and the notice under Section 56 (new Section 89) is analogous to Section 80 of the Civil Procedure Code and it prohibits the filing of any suit against the Wakf Board in respect any Act purporting to be done by it in pursuance of the Act or the Rules framed thereunder unless, the proper notice is served on the Wakf Board before filing of the suit. Defect of want of notice goes to the root of the matter and it cannot be viewed likely.
(iv) 1970 (3) Supreme Court Cases 591 (Shyam Behari Lal v. Lalla Jageshwar prasad);
5. .. .. When the plea of res judicata is founded on general principles of law all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. .. ..
(v) 2011 (6) CTC 485 (Haji B. Pakkir Mohammed v. The Secretary to Government, Government of Backward, Most Backward Classes and Minority Welfare, Government of Tamil Nadu, Fort St. George, Chennai-9 and others);
17. Even though the Civil Revision Petition is liable to be dismissed on various grounds, suffice it for this Court to advert to one vital ground.
The suit in question ie., WOS No.90 of 2006 was filed without even issuing the mandatory 'pre-suit notice' as contemplated under Section 89 of the Wakf Act, 1995. Such mandatory compliance having been conveniently given a go-bye, resulting in a fatal defect, the suit itself cannot be maintained on file. The provision makes it clear that it imposes upon every Civil Court a statutory and unqualified obligation to dismiss the suit if there is non-compliance of that provision. A close reading of Section 89 of the Wakf Act, 1995 corresponding to Section 56 in the old Act, to the effect, 89. Notice of suits by parties against the Board-- No suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. would go to show that the provision beginning in a negative sense with the wordings no suit shall be instituted is imperative in character regarding issuance of notice of suits. Admittedly, the petitioner never issued the notice as contemplated in the Wakf Act to set the law in motion. If a suit had been instituted without complying with such vital mandatory requirement, the Court would only reject the plaint under Order 7 Rule 11 CPC. .. ..
12. Heard both sides and perused the materials available on record.
13. The petitioner has filed W.O.P.No.10 of 2007 for declaration that the petitioner is also entitled to joint management of the Wakf in question along with the respondent. According to the petitioner, he is the great grand son of Syed Kathija Nachiar, the elder sister of the original wakfi Fathima Sulthan Beevi, while the respondent is the great grand son of Umma Sahibu Ammal, who is the younger sister of the original wakfi. As per the Wakf deed, there must be two Muthawallis to manage and administer the Wakf properties. If there is no male descendant of the first Muthawalli, then a male descendant of female heirs must be the Muthawalli. According to the petitioner, he being the great grand son of elder sister of the original wakfi, is entitled to joint management of the Wakf with the respondent. The respondent denied the said claim of the petitioner and contended that the petitioner has nothing to do with the Wakf.
14. According to the respondent, at the time of death of first Muthawalli, his great grand mother Umma Sahibu Ammal, the younger sister of wakfi was alive and as per the Muslim law of inheritance, she inherited entire Wakf and its properties. The Wakf Board by order dated 28.01.1976 in Ex.R1, considering the claim of both the petitioner and the respondent, held that only the respondent's great grand mother inherited the entire Wakf and its properties as per the Muslim law of inheritance. This finding was on merits after considering the contention of both the petitioner and respondent. It is to be noted that the petitioner has not challenged the order passed 30 years back in Ex.R1.
15. The contention of the learned counsel for the petitioner that the Muslim law of inheritance is not applicable to the Wakf is untenable. The unreported judgment of the Patna High Court made in appellate decree No.180 of 1996 dated 15.04.2009 (Kesho singh @ Keshaw singh and others v. Ashwani Kumar singh @ Ashwani K) relied on by the learned counsel for the petitioner relates to sharing of income of Wakf. The said judgment is not applicable to the facts of the present case. Similarly, the contention of the learned counsel for the petitioner that inheritance is as per stirpes and not as per capita, is not applicable to the facts of the present case and the judgment relied on by the learned counsel for the petitioner does not advance the case of the petitioner. The learned counsel for the petitioner has not produced any judgment to show that Muhammadan law of inheritance is not applicable to the Wakf.
16. On the other hand, the judgment relied on by the learned counsel for the petitioner in (1912) 17 Indian cases P.124, order dated 16.09.2012 (Syed Gaffur Saheb and others v. Syed Moosa Saheb and another) advances the case of the respondent. Only in the said judgment, the Division Bench of this Court held that succession in respect of the Darga involved in that case must be governed by Muhammadan law of inheritance. The petitioner is also seeking for declaration that he is also entitled to be joint management of the Wakf and its properties. In the petition for such a relief, the Wakf Board is a necessary party and the petitioner can file such petition only after issuing statutory notice to the Wakf Board as contemplated under Section 89 of the Wakf Act. The petition is not maintainable for failure on the part of the petitioner to make the Wakf Board as a party and issue statutory notice. The petition filed by petitioner before Wakf Board was rejected on the ground that younger sister of wakfi inherited the entire wakf after the death of original Muthawalli and only her descendants are entitled to manage the wakf. The petitioner did not challenge the said order marked as Ex.R1. Having failed to challenge the said order, the petition before the Wakf Tribunal filed by petitioner is not maintainable. The contention of the learned counsel for the respondent that the descendants of Syed Kathija Nachiar are excluded by Muhammadan law of inheritance, the petition filed by the petitioner is hit by the principles of resjudicata and not maintainable for impleading the Wakf Board as a party and non issuance of statutory notice, has considerable force. The judgments relied on by the learned counsel for the respondent are applicable to the facts of the present case.
17. In the result, the Civil Revision Petition is devoid of merits and it is hereby dismissed. No costs.
21.08.2017
Index : Yes
Speaking/Non speaking order:Yes/No
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V.M.VELUMANI,J.
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To
The Wakf Tribunal
Subordinate Judge, Nagapattinam.
Pre-delivery order in
C.R.P.(NPD)No.3383 of 2009
21.08.2017