Andhra HC (Pre-Telangana)
A.S. Abdul Khader Wakf For Deeni Talim vs Saber Miah on 23 July, 2003
Equivalent citations: 2003(6)ALD625, 2003(6)ALT469, AIR 2003 ANDHRA PRADESH 528, (2004) 1 CIVLJ 788, (2004) 1 CURCC 60, (2003) 6 ANDHLD 625, (2003) 6 ANDH LT 469
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
JUDGMENT P.S. Narayana, J.
1. These Second Appeals are filed by A.S. Abdul Khader Wakf for Deeni Talim, represented by its Managing Mutawalli Masood Abdul Khader, aggrieved by the reversing judgments and decrees made by the Additional Chief Judge, City Civil Court, Secunderabad.
2. The appellant herein, as plaintiff instituted the suits on the file of the I Assistant Judge, City Civil Court, Secunderabad for the relief of eviction, recovery of mesne profits, damages for use and occupation and also for future mesne profits till recovery of possession against different tenants, arrayed as defendants in the respective suits. The Court of first instance had decreed the suits and aggrieved by the same, the respective tenants preferred Appeals and the appellate Court had reversed the judgments and decrees of the Court of first instance on twin grounds that the Wakf Board alone can maintain the suits and a Mutawalli cannot maintain the suits and also a joint Mutawalli or a co-Mutawalli cannot maintain the suits in the absence of the other Mutawallis. In view of the general importance involved, since these questions may have an impact on Wakf properties, their superintendence and management, one of us (P.S.Narayana., J) by the order dated 20-2-2003 had framed questions specified infra, to be decided by an appropriate Division Bench. Inasmuch as the factual controversy is only incidental to the important questions raised, the Second Appeals were referred to be decided by an appropriate Division Bench in toto. The questions which had been referred to the Division Bench are as hereunder:
(a) In view of the provisions of the Wakf Act, 1954 and the Wakf Act, 1995, whether a Mutawalli can institute or defend a suit in relation to the properties of the Wakf ? If so, under what circumstances ?
(b) Whether the position of a Mutawalli is that of a Trustee ? And if so, whether one of the Mutawallis can maintain the action when there are more than one Mutawalli ?
Thus, these matters are coming before this Court for final disposal.
3. The factual aspects and the legal aspects involved in this Batch of Second Appeals being virtually the same, all these Second Appeals are being disposed of by a Common Judgment.
4. Sri Vedula Venkata Ramana, the learned Counsel representing the appellant in this Batch of Second Appeals in all fairness had submitted that under Section 15(2) of the Wakf Act, 1954 and Section 32(2) of the Wakf Act, 1995, power is conferred on the Wakf Board to institute suits. The learned Counsel would further maintain that a Mutawalli who is expected to manage and supervise the properties of the Wakf is definitely entitled to maintain a suit for eviction and also for recovery of mesne profits. The learned Counsel further submitted that the aforesaid provisions conferring such power on the Wakf Board are only enabling provisions and it cannot be said that a Mutawalli has no right to maintain a suit at all. The learned Counsel also had placed reliance on Manjula Varsheney v. A.P. State Wakf Board, , Tamil Nadu Wakf Board v. Hathija Ammal, , and also Badagara Jumayath Palli Dharas Committee v. P. Ummerkutty Haji, AIR 2002 Kerala 56.
5. Per contra Sri Mirza Imamullah Baig, learned Counsel representing the respondents had drawn our attention to Section 15(2) of the Wakf Act, 1954 and Section 32(2) of the Wakf Act, 1995 and also Section 112(2) of the Wakf Act, 1995 and had contended that in view of the specific conferment of power to institute and defend suits on the Wakf Board, especially in the absence of delegation, at any stretch of imagination it cannot be said that a Mutawalli has power to institute such suits. The learned Counsel also had drawn our attention to the provisions relating to the duties of a Mutawalli and also the scheme and object of both the Wakf Act, 1954 and the Wakf Act, 1995. The learned Counsel also had maintained that even otherwise when Ex. A-1 shows more than one Mutawalli, one of the Mutawallis, in the absence of other Mutawallis, definitely cannot maintain such suits since the position of a Mutawalli is just akin to that of a Trustee. No doubt, the learned Counsel also had canvassed certain factual aspects relating to both Exs. A-1 and A-4 and had submitted that at any rate the appellant as plaintiff had not proved his case and hence the appellant is bound to fail. Strong reliance was placed on Reza Ansari v. Shyamlal Sah, .
6. Heard both the Counsel. Perused the respective pleadings of the parties, findings recorded by the Court of first instance and also the findings recorded by the appellate Court.
7. The substantial question of law which was framed while admitting these Second Appeals is as follows:
"Whether the view taken by the appellate Court that suit is not maintainable is sustainable in law?"
As already referred to supra, the factual ,aspects, the respective pleadings of the (4) AIR 1983 parties, the Issues settled, the documents marked, the evidence let-in and the findings recorded by both the Court of first instance and also the appellate Court in all these Appeals are virtually the same. For better appreciation, the facts in the respective Second Appeals are briefly referred to as hereunder.
8. S.A. No. 254/96 is filed as against the judgment and decree of the I Assistant Judge, City Civil Court, Secunderabad made in A.S. No. 9/93 dated 31-8-1995 reversing the judgment and decree dated 30-12-1992 made in O.S. No. l176/84 on the file of I Assistant Judge, City Civil Court, Secunderabad. The appellant/plaintiff instituted the suit O.S. No. 1176/84 for recovery of possession of the plaint schedule premises, recovery of Rs. 1,500/ - as mesne profits, damages for use and occupation of the said premises from 1-11-1983 till the date of suit and future mesne profits @ Rs. 300/- per month from the date of suit till the date of delivery of possession. The appellant/plaintiff is a Wakf made by late A.S. Abdul Khader for religious and educational purposes over 40 years ago and it is registered as Wakf with A.P. Wakf Board on 18-6-1983 and four sons of late Sri A.S. Abdul Khader are the Mutawallis of the Wakf and Masood Abdul Khader is the managing Mutawalli. The defendant in the suit is a tenant of the plaint schedule property on a monthly rent of Rs. 100/-. By a notice dated 15-10-1983, the said tenancy was terminated in accordance with law. It was further pleaded that the suit premises being Wakf property and registered as "Wakf under the Wakf Act, the same is not governed by the provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960,
9. A written statement was filed virtually denying all the allegations. After settlement of Issues, the managing Mutawalli had examined himself as PW-1 and Exs.A-1 to A-4 were marked. Ex. A-1 is the extract of book of endowment dated 18-6-1983, Ex.A-2 is the office copy of legal notice dated 5-10-1983, Ex.A-3 is the postal acknowledgement and Ex. A-4 is the letter dated 19-9-1983. On behalf of the defendant, none had been examined, but before the appellate Court Exs. B-1 to B-4 were marked. On appreciation of the oral and documentary evidence, the Court of first instance decreed the suit as prayed for by its judgment and decree dated 30-12-1992 and aggrieved by the same, the tenant preferred Appeal A.S. No. 9/93 on the file of Additional Chief Judge, City Civil Court, Secunderabad and the judgment and decree of the Court of first instance had been reversed by the Judgment dated 31-8-1995 and aggrieved by the same, the unsuccessful plaintiff had preferred the present Second Appeal.
10. S.A. No. 256/96 is filed by the unsuccessful plaintiff as against the judgment and decree made in A.S.No.6/93, dated 31-8-1995 on the file of Additional Chief Judge, City Civil Court. Secunderabad, reversing the Judgment and decree dated 30-12-1992 made in O.S. No. l 177/84 on the file of I Assistant Judge, City Civil Court, Secunderabad. The appellant/plaintiff instituted the suit O.S. No. l 177/84 praying for the relief of recovery of possession of the suit premises from the defendant, recovery of Rs. 1800/- as mesne profits or damages for use and occupation of the said premises from 1-11-1983 till the date of suit, and future mesne profits @ Rs. 360/-per month from the date of suit till the date of taking delivery of possession. The monthly rent is Rs. 40/- and a notice was issued on 5-10-1983 terminating the tenancy in accordance with law and the pleadings in all other aspects virtually are the same as referred to supra in S.A. No. 254/96.
11. A written statement denying all the allegations in the plaint had been filed and on settlement of Issues, the managing Mutawalli was examined as PW-1 and Exs. A-1 to A-4 were marked and no evidence was let-in on behalf of the defendant. On appreciation of the oral and documentary evidence, the suit was decreed and aggrieved by the same, A.S. No. 6/93 was filed by the tenant on the file of Additional Chief Judge, City Civil Court, Secunderabad and at the appellate stage Exs.B-1 to B-3 were marked. Ex. B-1 is a Xerox copy of the Wakf deed in Urdu language, Ex.B-2 is the translation and Ex.B-3 is the letter dated 31-1-1983 and inasmuch as the judgment and decree of the Court of first instance had been reversed, aggrieved by the same, the unsuccessful plaintiff/respondent in the Appeal, had preferred the present Second Appeal.
12. S.A. No. 257/96 is filed as against the Judgment and decree made in A.S. No. 12/93 on the file of Additional Chief Judge, City Civil Court, Secunderabad dated 31-8-1995 reversing the Judgment and decree in O.S. No. l 174/84 on the file of I Assistant Judge, City Civil Court, Secunderabad dated 30-12-1992. The appellant/plaintiff instituted the suit O.S. No. l174/84 praying for recovery of possession of the plaint schedule property from the defendant, recovery of Rs. 1800/- as mesne profits or damages for use and occupation of the said premises from 1-11-1983 till the date of suit and for future mesne profits @ Rs. 360/- per month from the date of suit till the date of delivery of vacant possession. The monthly rent is Rs. 30/- and a notice of termination of the tenancy was issued on 5-10-1983 in accordance with law and the pleadings in all other aspects virtually are the same as referred to supra in S.A. No. 254/96.
13. A written statement denying the allegations in the plaint had been filed and after settlement of Issues, evidence was recorded. On behalf of the appellant/ plaintiff, PW-1 the managing Mutawalli was examined and Exs. A-1 to A-4 were marked. On behalf of the defendant, none were examined. On appreciation of both the oral and documentary evidence, the suit was decreed. Aggrieved by the same, the tenant filed A.S. No. 12/93 and at the appellate stage, Exs. B-1 to B-3 were marked. Aggrieved by the reversing judgment and decree made in A.S. No. 12/93, the present Second Appeal was preferred.
14. S.A.No.258/96 is preferred as against the judgment and decree dated 31-8-1995 made in A.S.No.11/93 on the file of Additional Chief Judge, City Civil Court, Secunderabad, reversing the judgment and decree dated 30-12-1992 made in O.S.No. l178/84 on the file of I Assistant-Judge, City Civil Court, Secunderabad. The appellant/plaintiff filed the suit for recovery of possession of the plaint schedule property from the respondent/defendant, recovery of Rs. 1800/- as mesne profits or damages for use and occupation of the suit premises from 1-11-1983 till the date of delivery and future mesne profits @ Rs.360/- per month from the date of suit, till the date of delivery of vacant possession. The monthly rent is Rs. 60/- per month and a notice of termination of tenancy was issued on 5-10-1983 in accordance with law and the pleadings in all other aspects virtually is the same as referred to supra in S.A. No. 254/96.
15. A written statement, totally denying all the allegations in the plaint had been filed. On settlement of Issues, evidence was recorded and PW-1, the managing Mutawalli was examined on behalf of the appellant/ plaintiff and Exs. A-1 to A-4 were marked. No evidence was let-in on behalf of the respondent/ defendant. On appreciation of both the oral and documentary evidence, the suit was decreed. Aggrieved by the same, A.S. No. 11/93 was filed on the file of Additional Chief Judge, City Civil Court, Secunderabad. Exs.B-1 to B-3 were marked at the appellate stage. In the Appeal, the judgment and decree of the Court of first instance were reversed and aggrieved by the same, the present Second Appeal is preferred by the unsuccessful plaintiff/ respondent in the Appeal.
16. S.A. No. 259/96 is an Appeal preferred as against the Judgment an decree dated 31-8-1995 in A.S. No. 8/93 on the file of Additional Chief Judge, City Civil Court, Secunderabad reversing the Judgment and decree dated 30-12-1992 in O.S. No. 1175/ 84 on the file of I Assistant Judge, City Civil Court, Secunderabad. The appellant/ plaintiff filed the suit for recovery of possession of the plaint schedule property from the respondent/defendant, recovery of Rs.1800/- as mesne profits or damages for use and occupation of the suit premises from 1-11-1983 till the date of delivery and future mesne profits @ Rs. 360/-per month from the date of suit, till the date of delivery of vacant possession. The monthly rent is Rs. 30/- per month and a notice of termination of tenancy was issued on 5-10-1983 in accordance with law and the pleadings in all other aspects virtually is the same as referred to supra in S.A. No. 254/96.
17. A written statement denying the allegations in the plaint had been filed. On settlement of issues, the evidence of PW-1, the managing Mutawalli was recorded and Exs. A-1 to A-4 were marked. On behalf of the respondent/defendant no evidence was let-in. On appreciation of both oral and documentary evidence, the suit was decreed as prayed for. Aggrieved by the same, the Appeal A.S.No.8/93 was preferred by the tenant on the file Additional Chief Judge, City Civil Court, Secunderabad wherein Exs. B-1 to B-3 were marked. Inasmuch as the judgment and decree of the Court of first instance were reversed in the Appeal, aggrieved by the same, the present Second Appeal is preferred.
18. S.A. No. 719/95 is filed by the unsuccessful plaintiff aggrieved by the Judgment and decree made in A.S. No. 16/90 on the file of Additional Chief Judge, City Civil Court, Secunderabad dated 31-8-1995 reversing the judgment and decree dated 25-1-1990 made in O.S. No. 1915/84 on the file of I Assistant Judge, City Civil Court, Secunderabad. The suit was instituted for delivery of vacant and peaceful possession of the suit premises, to pay Rs. 1,800/- by way of mesne profits or damages for use and occupation from 1-11-1983 till the date of suit and also future mcsne profits @ Rs.360/- per month from the date of suit till the date of delivery of vacant possession. The monthly rent is Rs. 40/- and a notice of termination of tenancy was issued on 5-10-1983 in accordance with law and the pleadings in all other aspects virtually is the same as referred to supra in S.A. No. 254/96.
19. A written statement was filed denying all the allegations in the plaint. After settlement of issues, the evidence was recorded. PW-1 who is the managing Mutawalli was examined and Exs. A-1 to A-4 were marked on behalf of the appellant/ plaintiff and on behalf of the defendant, Ex. B-1, a memo filed by the defendant dated 11-12-1989 alone had been marked and no oral evidence was let in on behalf of the defendant. On appreciation of both the oral and documentary evidence, the suit was decreed and aggrieved by the same, the tenant filed A.S. No. 16/93. In the said Appeal, Exs.B-2 and B-3 were marked and inasmuch as the appellate Court had reversed the Judgment and decree of the Court of first instance, the unsuccessful plaintiff/respondent in the Appeal, had preferred the present Second Appeal.
20. The substantial questions of law which arise for consideration in these Second Appeals are :
1. Whether the view taken by the appellate Court that the suit is not maintainable, is sustainable in law?
2. Whether a Mutawalli can maintain the suit for eviction and for recovery of mesne profits or damages for use and occupation ?
3. Whether a managing Mutawalli or a joint Mutawalli can maintain a suit? If so, under what circumstances ?
21. As can be seen from the material available on record, in all the suits, the managing Mutawalli, who had instituted these suits had examined himself as PW-1 and Ex. A-1 - Abstract book of the Endowment Department, Ex.A-2 - Office copy of the legal notice dated 5-10-1983, Ex. A-3 - Acknowledgement and Ex. A-4-proceedings dated 19-9-1983 had been marked. In S.A. No. 719/95, no doubt a memo was marked as Ex.B-1 and in other matters, at the appellate stage, Exs. B-1 to B-3 were marked. These documents, in fact, do not throw any light on the questions in controversy. However, the Counsel representing the respondents in these Second Appeals, made an attempt to convince the Court that Exs. A-1 and A-4 cannot be relied upon. However, in our considered opinion, in the light of the clear findings which had been recorded by the Court of first instance in detail and also in the light of the reversal of the judgments and decrees on the twin grounds referred to supra, the respondents/ tenants cannot be permitted to raise such questions at this stage since these are all factual aspects. It is also pertinent to note that the plaintiff examined the managing Mutawalli as PW-1. He deposed about the plaintiff Institution and its registration as Wakf by the A.P. Wakf Board. PW-1 also deposed about the four sons of A.S. Abdul Khader being the Mutawallis of the Wakf and PW-1 in fact had well explained about Ex.A-1 in which these are shown as Mutawallis. PW-1 also deposed about Ex. A-4, the proceedings of the Wakf Board by virtue of which the plaintiff was permitted to institute the present suits. Except a bald and total denial of all the allegations in the respective written statements filed by the respondents/ tenants, no specific plea relating to the maintainability of the suits by a Mutawalli, in fact had been taken. Likewise, the plea that a joint Mutawalli or one of the Mutawallis cannot maintain the suit also had not been taken. Several of the contentions now raised are not based on any specific pleas raised in this regard in the pleadings, but however, they were raised on the ground that these are pure questions of law. The appellate Court, as already referred to supra, had reversed the judgments and decrees of the Court of first instance on the ground that the Wakf Board alone is competent to maintain these suits and a Mutawalli cannot maintain these suits and at any rate the managing Mutawalli or one of the Mutawallis cannot maintain the suits in the absence of other Mutawallis. As already observed by us, specific pleas in this regard had not been taken except totally denying all the allegations in the respective written statements filed by the respondents/defendants in these suits. PW-1, the managing Mutawalli, who is interested in the management and supervision of the Wakf and the Wakf properties had instituted these suits in the interest of this Institution. The power of such managing Mutawalli to maintain the suits had been raised and the appellate Court had accepted the said contention on the ground that the Wakf Board alone is competent to institute these suits. It is clear on facts that by virtue of Ex. A-4, the managing Mutawalli - PW-1, was permitted to institute these suits. The respective tenancies of the respondents/ defendants had been terminated in accordance with law by issuance of the notice Ex.A-2 and clear findings had been recorded by the Court of first instance in this regard and thus factual findings had not been reversed by the appellate Court. It is pertinent to note that the appellate Court had reversed the judgments and decrees of the Court of first instance on the ground of the maintainability of the suits since those were not instituted by the Wakf Board, but they were instituted by the managing Mutawalli. Suffice for us to state that the Mutawalli who is the person in-charge of the affairs of the Wakf in relation to supervision and management and who is normally interested in the maintenance and management of the Wakf and the Wakf properties, in the interest of the Institution, can definitely maintain a suit for eviction, recovery of mesne profits or damages for use and occupation. In Bibi Saddiqa Fatima v. Saiyed Mohammad Mahmood Hasan, , held:
"A Mutawalli is like a Manager rather than a trustee (see page 498). The Mutawalli so far as the Wakf property is concerned, has to see that the beneficiaries got the advantage of usufruct. We have already pointed out that under the Shia law the property does not remain with the waqif. It is transferred to God or to the beneficiaries. At page 554 of Tyabji's famous book it is stated:
"The support and maintenance of the waqifs family, etc., would seem under the Act to be deemed a purpose recognized by the Muslim law as religious, pious or charitable ; Section 2. This view was put forward by Ameer Alt, J., with great learning in his dissenting judgment in Bikani Mia's case (1893) ILR 20 Cal 106).
Section 527 at page 593 runs thus :
"The Mutawalli has no ownership, right or estate in the wakf property, in that respect he is not a trustee in the technical sense : he holds the property as a manager for fulfilling the purpose of the Waqf."
A contrary statement of law at page 202 of Mutta 's Mahomedan Law, seventeenth edition based on the decision of the Allahabad High Court in Mohammad Qamar Shah Khan v. Mohammad Salamat Ali Khan, AIR 1933 All 407, to the effect that the Mutawalli is not a mere superintendent or manager but is practically speaking the owner" is not a correct statement of law. In a later Full Bench decision of the same Court in Moattar Raza v. Joint Director of Consolidation, U. P. Camp at Bareilly, , while overruling the earlier decision, it has been said at pages 513-14:
"the legal status and position of a Mutawalli under a waqf under the Musalman Law is that of a Manager or Superintendent."
The general powers of the Mutawalli as mentioned in Section 529 of Tyabji's book are that he "may do all acts reasonable and proper for the protection of the wakf property, and for the administration of the waqf."
It will be useful to point out the law as regards distribution of distributable income of the wakf properties amongst the beneficiaries as mentioned in the various subsections of Section 545 at pages 606-608. Unless a different intention appears, subsection (4) says :-
"The benefit of a wakf for a person's sons and his children, and the children of his children for ever so long as there are descendants, is taken per capita, males and females taking equally and the children of daughters being included."
Attention must be called to an important statement of law in the well-known authoritative book of Mohammedan Law by Ameer Ali, Vol. I, fourth edition, page 472. It runs thus:
It is lawful for a Mutawalli with the income of the wakf to erect shops, houses, etc., which may yield profit to the waqf, as all this is for the benefit of the wakf. All properties purchased by the Mutawalli out of the proceeds of the waqf become part of the waqf and are subject to the same legal incidents as the original wakf estate."
In the Commentary on the law of Wakf in India by Dr. Ahmedullah Khan, 3rd Edition, at page 119, the learned commentator while dealing with duties of a Mutawalli observed:
"Under Islamic Law of Wakfs, Mutawalli acquires a very peculiar and significant position with certain amount of discretionary powers which he is expected to exercise diligently in the interest of Wakf and Wakf property. He is manager and custodian of the Wakf property and has to discharge his duties according to the directions of the Wakf as enumerated in the Wakf Deed. However he is also authorized to take decision and use his own discretion if it becomes inevitable in order to save the Wakf property from being affected."
22. Section 15 of the Wakf Act, 1954 which had been repealed by the present Act - Wakf Act, 1995, had dealt with the functions of the Board and Section 15(2)(h)(i) of the said Act had specified the Power of the Board to institute and defend suits and proceedings in a Court of law relating to Wakfs. Section 32 of the present Wakf Act, 1995 deals with Powers and functions of the Board and Section 32(2)(i) of the present Act also confers power on the Wakf Board to institute and defend suits and proceedings relating to Wakfs. Section 36 of the Wakf Act, 1954 had dealt with the duties of Mutawallis and Section 50 of the present Act, the Wakf Act, 1995, deals with Duties of Mutawalli. Section 112 of the present Act deals with Repeal and Savings and Sub-section (2) specifies notwithstanding such repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of this Act. Subsection (1) of Section 112 specifies that the Wakf Act, 1954 (29 of 1954) and the Wakf (Amendment) Act, 1984 (69 of 1984) are hereby repealed. On the strength of these statutory provisions, the main contention that Wakf Board alone can institute a suit of this nature and a Mutawalli cannot institute or maintain these suits had been seriously canvassed.
23. It is no doubt true that in the decision referred Reza Ansari v. Shyamlal Sah (supra), a Division Bench of Patna High Court had arrived at the conclusion that in execution proceedings of decree passed in suit for possession of Wakf property after Wakf Act came into force in State of Bihar, the same cannot be instituted by Mutawalli of Wakf property. Reliance also was placed on the decision of the Apex Court referred Tamil Nadu Wakf Board v. Hathiji Ammal (supra), but this decision is not on the point.
24. We are unable to accept the contention that the Muthawalli cannot maintain these suits for the reasons specified infra. In the decision referred Manjula Varsheney v. A.P. State Wakf Board, (supra), while dealing with a legal notice terminating the lease of Wakf property issued by the Wakf Board under Section 106 of the Transfer of Property Act in exercise of powers under Section 32 of the Wakf Act, 1995, one of us (B. Sudershan Reddy, J.) had observed:
"In my considered opinion, Section 32(1) of 1995 Act, confers a very wide power upon the Wakf Board, including the power to issue necessary directions for the proper administration of the Wakf, and Muthawalli of the Wakfs are bound to comply with all such lawful directions. In a given case, the Wakf Board may direct the Muthawalli to act in a particular manner so as to ensure that the Wakf is properly maintained and administered and the income thereof is duly applied for the objects and for the purposes for which such Wakfs are created or intended. In the given situation, the Wakf Board can certainly act for and on behalf of Muthawalli, so as to ensure that the Wakf is properly maintained and administered and for the protection of its properties. The power to issue lawful directions includes the power to act on behalf of Muthawalli as long as such act does not amount to interfering with the duties and functions of Muthawalli Such actions cannot be questioned by any third parties. Such directions issued may be susceptible to be judicially reviewed but only at the instance of the Muthawalli.
In the instant case, in the impugned notice itself, it is stated that to the Muthawalli has brought it to the notice of the Wakf Board through representation dated 30-6-1999 that the petitioners herein have violated some of the conditions of the lease and, therefore, the lease should be terminated/cancelled. The Muthawalli did not challenge the action of the respondent Wakf Board in terminating the lease of the petitioners herein through the impugned notice. The Muthawalli has no complaint whatsoever against the Board for initiating the proposed action by the Board; if at all, the Muthawalli alone could have objected complaining interference by the Wakf Board. The Muthawalli and the Wakf Board are sailing together. It is not in dispute that the Muthawalli could have got issued such a legal notice terminating the lease. It is as simple as that instead of Muthawalli, the Wakf Board got issued the impugned legal notice, at the request of the Muthawalli."
In the decision referred Badagara Jumayath Palli Dharas Committee v. P. Ummesrkutty Haji, (supra), a Division Bench of the Kerala High Court had arrived at a conclusion that a person acting as a Mutawalli is entitled to sue for recovery of possession of the Wakf property as he is entitled to rights and duties of a Mutawalli. In Moideen Bibi Ammal v. Rathnaveu Mudali, AIR 1927 Madras 69, it was held that a person not validly entitled to act as Mutawalli may, by taking charge of it and purporting to manage the property, thereby becomes a trustee de son tort and answerable as such and the concept of a de facto trustee or trustee de son tort is not foreign to Mohammedan Law and that the de facto trustee of a mosque can collect the rents and reimburse himself for the expenses of the collection out of the rent collected. In Syed Mustafa v. State Wakf Board, , it was held that the definition of Mutawalli under Section 3(f) of the Muslim Wakf Act, 1954 will include a person who for the time being manages or administers the Wakf property as such and such person has not admitted the wakf nature of the properties will be a different question which may lead to other steps to be taken under the Act, but that will not be a ground under which he can challenge the demand for contribution made against him.
25. In the present case, the managing Mutawalli who is interested in safeguarding the interests of the Wakf and its properties had instituted the suits praying for appropriate reliefs. It is also pertinent to note that the managing Mutawalli is permitted to institute these suits by the Wakf Board as evidenced by Ex.A.4. A Mutawalli is a person who will manage and supervise the Wakf properties. In view of the same, it cannot be said that a Mutawalli cannot maintain a suit in relation to Wakf property at all and the Wakf Board alone should institute the suit. Hence, we are of the considered opinion that a Mutawalli can definitely institute a suit for recovery of possession of the Wakf property from tenants and also for appropriate reliefs.
26. In view of the reasons recorded above, we are not inclined to follow the view expressed by the Division Bench of Patna High Court referred Reza Ansari v. Shyamlal Sah, (supra), and we are inclined to follow the view expressed in the decisions Badagam Jumayath Palli Dharas Committee v. P. Ummerkutty Haji, and also Moideen Bibi Ammal v. Rathnavelu Mudali, supra.
27. The position of a Mutawalli is just akin to a Trustee. It is no doubt true that a Mutawalli cannot act adverse to the interests of the Wakf. A Mutawalli is expected to administer and manage the properties of the Wakf keeping in view the wishes of the founder and a Mutawalli is expected to protect the interest of the beneficiaries as well. When there are more than one Mutawallis, we are also of the opinion that one of the Mutawallis can definitely maintain a suit representing the other Mutawallis as well unless there is conflict of interest otherwise. A co-owner can definitely maintain a suit for the relief of eviction and even in the case of Mutawallis, when there are more than one Mutawalli, one such joint Mutawalli can definitely maintain a suit. The principle applicable in the case of a co-owner in this regard can be extended even in the case of Mutawallis. In Damodaram Chetti v. Vengarala Rukmaniamma and Anr., 1967 (2) An.WR 200, it was held by a Division Bench of this Court:
"One of the joint owners or co-owners (of a building) can ask for eviction of a tenant who has been let in by both the owners (wife and husband) notwithstanding that the other co-owner (husband) or co-owners are not willing to join the plaintiff or the petitioner in asking for eviction and on the other hand, do not want the tenant to be evicted, provided such a co-owner or co-owners are made parties to the suit or petition. If this is not the law, cases can be envisaged where one of the co-owners in collusion with the tenant can affect complete dispossession of the other co-owner by merely getting the tenant to acknowledge his sole possession and title. When a co-owner is entitled to possession of , immovable property in entirety along with the other co-owners it is not permissible for one of the co-owners, subsequently in league with the tenant to permit him to be in possession of the whole of the premises on behalf of himself alone which in effect will oust the other co-owners of the possession of the property to which he is of right entitled'
28. Here is a case where the managing Mutawalli had instituted the suits. The managing Mutawalli is not acting adverse to the interest of the other Mutawallis nor the other Mutawallis had objected to the actions initiated by the managing Mutawalli. When the managing Mutawalli is acting in the interest of protecting the properties of the Wakf for its benefit, definitely the contention that he cannot maintain the suits at all on that ground cannot be accepted and hence the said ground raised by the respondents/ tenants also cannot be sustained, in our considered view.
29. Hence, viewed from any angle, the reasons recorded by the appellate Court and the findings given thereon definitely are totally unsustainable and hence the judgments and decrees made in A.S. Nos. 9/93, 6/93,12/ 93,11/93, 8/93 and 16/90 dated 31-8-1995 on the file of Additional Chief Judge, City Civil Court, Secunderabad, cannot be sustained and are liable to be set aside and accordingly the same are set aside and the judgments and decrees made in O.S. Nos. 1176/84, 1177/84, 1174/84, 1178/84, 1175/84 dated 30-12-1992 and O.S. No. 1915/ 84 dated 25-1-1990, on the file of I Assistant Judge, City Civil Court, Secunderabad, are hereby restored. Accordingly, the appellant is bound to succeed in all these Second Appeals and hence the Second Appeals are allowed, with costs. The respondents are granted a month's time to vacate the respective premises.