Kerala High Court
Abdul Latheef K.A vs K.P.Abdurahiman on 27 March, 2013
Author: A.Hariprasad
Bench: K.M.Joseph, A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH
&
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
THURSDAY, THE 19TH DAY OF SEPTEMBER 2013/28TH BHADRA, 1935
CRP(WAKF).No. 172 of 2013 ()
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AGAINST THE JUDGMENT IN OS 30/2012 IN THE COURT OF WAKF TRIBUNAL,
KOZHIKODE DATED 27-03-2013.
REVISION PETITIONERS/DEFENDANTS 1, 2 & 4:
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1. ABDUL LATHEEF K.A., AGED 57 YEARS,
S/O.LATE ABDUL KHADER, KARATT HOUSE,
PARAPPA AMSOM AND DESOM, HOSDURG TALUK,
KASARAGOD DISTRICT.
2. NAJUMUDHEEN, S/O.ABDUL LATHEEF K.A.,
KARATT HOUSE, PARAPPA AMSOM AND DESOM, HOSDURG TALUK,
KASARAGOD DISTRICT.
3. BANAM YOUSUFF, S/O.ASSAINAR,
BANAM HOUSE, RESIDING AT
KAMMADAM PARAPPA AMSOM AND DESOM,
HOSDURG TALUK, KASARAGOD DISTRICT.
BY ADV. SRI.T.H.ABDUL AZEEZ.
RESPONDENT(S)/PLAINTIFFS & DEFENDANTS 3 & 5::
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1. K.P.ABDURAHIMAN,
S/O.MOHAMMED, P.P.K. MANZIL (HOUSE), NEERVELI,
KANNANKUNNU AMSOM AND DESOM, THALASSERI TALUK,
KANNUR DISTRICT - 670 101.
2. U.V.MOHAMMED KUNHI, S/O.LATE K.P.KUNHABDULLA,
PATTLAM HOUSE, PARAPPA AMSOM AND DESOM, HOSDURG TALUK,
KASARAGOD DISTRICT.
3. KERALA STATE WAKF BOARD,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
KALOOR,COCHIN.
R1 BY ADVS.SRI.P.B.KRISHNAN(CAVEATOR).
SMT.GEETHA P.MENON.
SRI.N.AJITH.
SRI.P.M.NEELAKANDAN.
SRI.P.B.SUBRAMANYAN.
R2 BY ADVS. SRI.T.K.VIPINDAS.
SMT.P.K.PRIYA.
SRI.K.V.SREE VINAYAKAN.
SRI.K.M.MUHAMMED HUSSAIN.
R3 BY ADV.SRI.K.SHIBILI NAHA.
THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 19-09-2013,
THE COURT ON 23-09-2013 PASSED THE FOLLOWING:
CRP(WAKF).No. 172 of 2013 ()
APPENDIX
PETITIONERS ANNEXURES : NIL.
RESPONDENTS ANNEXURES :-
ANNEXURE R1(a) : DATED 21-6-2013, AFFIDAVIT SWORN TO BY
K.P.ABDUL RAHIMAN HAJI, KAMMADAM,
PARAPPA VILLAGE, HOSDURG TALUK.
//TRUE COPY//
P.A TO JUDGE
amk
'C.R'
K.M.JOSEPH & A.HARIPRASAD, JJ.
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C.R.P.(Wakf) No.172 of 2013
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Dated this the 23rd day of September, 2013.
ORDER
A.Hariprasad, J.
"Can a mutawalli of a wakf voluntarily transfer/release his mutawalliship during his life time in favour of another person or committee formed from among the members of the congregation without any express power conferred on him to do so?
This is the precise legal question that arises for consideration in this civil revision.
2. Relevant facts in short: Defendants 1, 2 and 4 in O.S.No.30 of 2012 before the Wakf Tribunal, Kozhikode (in short, "the Tribunal") are the revision petitioners. Plaintiff and defendants 3 and 5 are the respondents. 1st respondent/plaintiff claimed that he is the mutawalli of Puzhakkara Kammadath Juma Masjid (in short, "the Mosque"). Admittedly it is an ancient Mosque. 1st respondent/plaintiff contended that the plaint schedule property was dedicated as wakf in ancient times by members of Puzhakkara Tarwad who followed Mappila Marumakkathayam. From the time of construction of the Mosque, it was CRP(Wakf) No.172/2013 2 being managed by the eldest male member of the Tarwad as hereditary mutawalli. While so, a partition deed was entered into between the members of the said Tarwad and Cheenamadathu Tarwad in the year 1945. That is Ext.A1. It is written in Kannada. True translation of Ext.A1 is Ext.A2. Item No.F1 in Ext.A1 is the plaint schedule property. The income from properties described in schedules F2 to 5 is earmarked for paying salary to Mukri attached to the Mosque and other expenses. 1st respondent/plaintiff is executant No.3 in the partition deed. He contended that he has been described as mutawalli of the Mosque in Ext.A1 itself. Ext.A1 deed provides that after death of the plaintiff, the mutawalliship to the Mosque shall be devolved on the seniormost male member of Puzhakkara Tarwad from time to time.
3. Plaint schedule wakf has been registered with the Wakf Board (in short, "the Board"). Register kept by the Board show that the rule of succession to the office of mutawalli is hereditary. 1st respondent/plaintiff is functioning as mutawalli eversince Ext.A1. He is residing 100 kms. away from the plaint schedule property. He felt it desirable, therefore, to have a committee consisting of persons of his choice and also members of Puzhakkara Tarwad for administering the wakf as per his instructions. Ultimately a committee was put in place to assist the plaintiff in administration of the Mosque. This practice was followed for decades. While so, K.P.Kunhabdulla and some of his henchmen began to create hindrance and tried to interfere in the administration of the wakf by the 1st respondent/plaintiff as mutawalli. Hence he was constrained to file a suit for injunction as O.S.No.194 of 1979 before the Munsiff's Court, Hosdurg. CRP(Wakf) No.172/2013 3 Defendants in that suit raised a contention that they constituted a committee and that committee was in administration of the Mosque. Later, the defendants abandoned their claims and, as requested by them, the suit was not prosecuted. Plaintiff always assumed the position as the president of the committee, constituted to help him. In the present committee also, 1st respondent/plaintiff is the president and he remains to be the mutawalli of the Mosque. On 15.07.2012 a meeting was held at the aegis of the 1st respondent/plaintiff to reconstitute the committee. Defendants 1 to 4 tried to disrupt the meeting and started holding out threats that they would not allow the plaintiff to administer the wakf. Hence the suit for injunction is filed.
4. Defendants 1 to 4 (revision petitioners and the 2nd respondent) filed a joint written statement contending thus: plaint schedule property is a public wakf. It is registered before the Board as Kammadam Muslim Juma-ath. Plaintiff was acting as de facto mutawalli for some time. He had surrendered his mutawalliship for ever to the members of the Juma-ath. Whatever be the stipulations in Ext.A1 deed with regard to the mode of succession to the office of mutawalli, they have lost relevancy, because the committee has become the mutawalli of the wakf. Plaintiff is not even a de facto mutawalli of the wakf eversince he relinquished the post before the general body of the Mahal. Day- to-day administration of the wakf is being carried out by the committee elected by the general body of the Juma-ath. The committee came into existence before 1980. There was a demand by the members of the Juma-ath for absolute surrender of power of management of the wakf by the 1st respondent/plaintiff to CRP(Wakf) No.172/2013 4 the congregation. Plaintiff was agreeable for the said demand at the initial stage and a committee was formed. Later, he changed his attitude and filed O.S.No.194 of 1979 against the then committee. Plaintiff obtained a temporary injunction against the defendants therein. However, on the basis of a compromise reached in a mediation at the behest of P.A.Abdulla Moulavi, who was the Kazi of Kanjangad, the suit was settled out of court and the 1st respondent/plaintiff filed a memo before the court to that effect. Thereafter the committee elected by members of the Juma-ath came to administration of the wakf. But the correspondence to the Board was continued by the 1st respondent/plaintiff as mutawalli till 1994. The general body meeting of the congregation held on 03.01.1994 unanimously passed a resolution to seek the recognition of the elected committee by the Board. Pursuant to the said resolution, on 02.11.1994 1st respondent/plaintiff made an application to then Secretary of the Board requesting to make necessary changes in the records of the Board. After due enquiry, the Board recognized the committee as mutawalli of the wakf. 1st respondent/plaintiff has no manner of right in the administration of the wakf. Partition deed relied on by the 1st respondent/plaintiff is not a wakf deed. 1st respondent/plaintiff has no cause of action against the defendants in the suit. Hence the defendants contended that the suit is liable to be dismissed with costs. Defendants contended further that a suit for injunction simplicitor is not maintainable under Section 34 of the Specific Relief Act, 1963 without a prayer for declaration.
5. We heard the learned counsel Sri T.H.Abdul Azeez, appearing for CRP(Wakf) No.172/2013 5 the revision petitioners; Sri P.B.Krishnan, learned counsel for the 1st respondent; Sri T.K.Vipin Das, learned counsel for the 2nd respondent and Sri Shibili Naha, learned counsel for the 3rd respondent. For the sake of convenience and clarity parties are hereinafter referred to as the plaintiff and the defendants.
6. Tribunal considered the testimony of PW1 and DWs 1 and 2 and also Exts.A1 to A36 and B1 to B61 for deciding the matter.
7. After a full fledged trial and considering the evidence on record, the Tribunal decreed the suit restraining defendants 1 to 4 therein from obstructing and interfering in any manner with the administration and management of the wakf and its institutions by the plaintiff as mutawalli.
8. The issues raised for adjudication by the Tribunal are the following:
"1. Is the plaintiff the mutawalli of wakf property involved in this case?
2. Whether the administration and management of the wakf is by a committee elected by the general body of jama ath?
3. Is the prayer for injunction allowable?
4. Reliefs and costs?"
9. Learned counsel for the contesting defendants (who are the revision petitioners) submitted that the Tribunal did not properly appreciate the oral and documentary evidence and decreed the suit. According to the learned counsel for the contesting defendants, they admitted that the plaintiff was the mutawalli of the wakf at one point of time. Nonetheless, he released/surrendered his mutawalliship in favour of the congregation as he CRP(Wakf) No.172/2013 6 found it difficult to administer the Mosque and other institutions comprised in the wakf for multiple reasons. It is also vehementally argued by the contesting defendants that the up-keep and maintenance of the Mosque and other institutions were done out of the money raised by public contribution. Therefore, in the best interest of the wakf, the plaintiff transferred his mutawalliship to a committee, which is now in actual administration of the wakf.
10. Per contra, the plaintiff submitted that even before Ext.A1 partition deed, ie., before 1945, he started functioning as mutawalli of the wakf. His right to hold the office of mutawalli has been acknowledged in Ext.A1 partition deed. Both sides admit that the wakf was not created as per Ext.A1. It is the common case that the wakf was in existence even prior to Ext.A1. According to the plaintiff, he is a hereditary mutawalli on whom the right has been devolved following the custom and practice in their family. Admittedly plaintiff is a member of Mappila Marumakkathayam family and Ext.A1 recognizes the right of the eldest male member of the family to function as mutawalli of the wakf. Learned counsel for the plaintiff submitted that since the plaintiff started residence at a place about 100 kms. away from the wakf property and due to his advanced age, he experienced difficulties in the administration of the wakf. Therefore, he decided to form a committee to help him in the administration of the affairs of the wakf. Plaintiff would further contend that the role of the committee is only to work out his directions and it is an entity subordinate to him. In otherwords, he retained the absolute power even to select members of the committee, to fix their term and to define the functions of the committee as it CRP(Wakf) No.172/2013 7 is only intended to help him in the administration of the wakf. Plaintiff would further contend that the contesting defendants at one point of time were members of the committee. Since they started creating problems, plaintiff decided to reconstitute the committee which irked the contesting defendants. It is the definite case of the plaintiff that he never transferred or surrendered his mutawalliship over the wakf property to any individual or to any committee.
11. The moot legal question, mentioned above, can be resolved with reference to the Wakf Act, 1995 (in short, "the Act"), the authoritative text books on Muhammadan Law authored by great authors and the binding precedents.
12. The Act defines the terms "mutawalli" and "wakf" in Sections 3(i) and 3(r) respectively in the following words:
"(i) "mutawalli" means any person appointed, either verbally or under any deed or instrument by which a Wakf has been created, or by a competent authority, to be the mutawalli of a Wakf and includes any person who is a mutawalli of a Wakf by virtue of any custom or who is a naib-mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being, managing or administering any Wakf or Wakf property.
(r) "Wakf" means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable and includes -
(i) a Wakf by user but such Wakf shall not cease to be a Wakf by reason only of the user having ceased CRP(Wakf) No.172/2013 8 irrespective of the period of such cesser;
(ii) "grants", including mashrut-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and
(iii) a Wakf-al-al-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim law as pious, religious or charitable, and 'Wakif' means any person making such dedication;"
Section 50 of the Act deals with duties of the mutawalli. It is the assertion of the plaintiff that he is discharging all duties without any breach.
13. Admittedly there is no deed evidencing creation of the wakf involved in this case. It is the common case that Ext.A1 partition deed is not a wakf deed. According to the plaintiff, the wakf was created by his ancestors and as per an unbroken custom the eldest male member of the Tarwad has the right to administer the wakf as mutawalli. The contesting defendants have not raised any dispute regarding this contention. Ext.A1 partition deed itself describes the plaintiff as mutawalli, indicating that he became the mutawalli even prior to Ext.A1. Line of succession to the mutawalliship, according to the plaintiff, is the matriarchal system, whereby the eldest male member in the Tarwad would assume the religious office.
14. Whether a person can claim right to the office of mutawalli on the basis of a custom and what are the aspects to be proved to establish the custom are matters alien to this suit for prohibitory injunction. Here in this case, the plaintiff is the mutawalli on the date of the suit is his definite claim. Whereas the contesting defendants would contend that the plaintiff was the mutawalli of the CRP(Wakf) No.172/2013 9 wakf, but later he transferred/released his right to a committee and on the date of the suit, no such right subsisted in him. In other words, his appointment as mutawalli is not in dispute. His right in presenti is only in dispute. We shall now refer to the leading authorities on Muhammadan Law to understand the pristine principles of law.
15. Learned Author, Sir Syed Ameer Ali in his book on Mohammadan Law (Tagore Law Lectures, 1884) inter alia deals with the principles governing the wakfs elaborately. It can be seen that the compilation of principles was made from 'authorities in the Original Arabic'. Learned Author in Chapter XV at page 441(4th Edition) relating to governance of the wakf stated that the wakif may lawfully reserve the wilayet (mutawalliship) for himself. It is also stated therein that he has the power of appointing a mutawalli during his life time. We shall quote him (at page 442):
"Should he die without making any express appointment, the power devolves upon his executor. "If there is no executor, then the right of appointing a mutwalli is in the hands of the Judge.""
Learned Author further states at pages 444 & 445 in the following words:
""A mutwalli," says the Hawi, "can delegate the trust to another on his death-bed like an executor"
In the absence of any provision in the trust-deed as to the mode of succession, or of any evidence of usage, the mutwalli may, on his death-bed, nominate his successor, and such nomination will be valid without any judicial order. .........."
CRP(Wakf) No.172/2013 10 The legal principles regarding the appointment by a mutawalli of his successor is stated in the following words by the learned Author at page 448:
"A mutwalli appointed in general terms or whose appointment is not limited to the life-time of the wakif stands in law in the same position, so far as the wakf is concerned, as an executor. And it is in consequence of this view that he is given the power of appointing on his death-bed or when suffering from a mortal illness, a successor."
Excerption of legal principles from page 453 will be useful for our purpose.
"A mutwalli cannot give up the office of towliat of his own motion; he must obtain the permission of the Kazi to retire from his office. ....."
Learned author further says at page 454 thus:
"The mutwalli cannot, however, assign or transfer the office to any one, or appoint another during his lifetime, unless his own powers are 'general'. Should he in his lifetime and in health appoint another in his place, the appointment will not be lawful and valid, unless the mutawalli has obtained the towliat with that condition, 'in a general manner.'".
At page 455, the expression "in a general manner" is explained as hereunder:
"It means that if the waqif or Kazi were to make a condition at the time of appointing the mutawalli, that he should have the power of transferring the trust to another and substituting that other in his own place by a sanad-i-wakf or wasiat, should necessity arise for it, such a condition would carry with it the power, on the part of the mutawalli, to appoint another mutawalli during his lifetime, or in death illness."
16. Learned Author, Faiz Badruddin Tyabji on Muslim Law (4th Edition) CRP(Wakf) No.172/2013 11 elaborately deals with these topics. At page 585, the learned Author mentions about the persons with power to appoint successor to mutawalli. It reads as follows:
"In the absence of any express or implied provision in the dedication for the appointment of successive mutawallis, -
(1) the waqif is entitled to make the appointment;
(2) after the death of the waqif the executor of the
waqif, or the survivor of several executors, is so entitled;
(3) on the death of the said executor or surviving executor, the Court may appoint the mutawalli." Learned Author at page 590 says that a Mutawalli may appoint a successor to succeed him at his death, but cannot validly transfer his office to another during his life-time. An appointment or nomination made during the life-time of the Mutawalli is revocable like other testamentary disposition. At page 591, learned Author says in clear terms that " the mutawalli has no authority during his life- time to transfer his office to another." The jurists are of the opinion that the waqif himself can be the mutawalli for his life time. They also agree on the proposition that the appropriator or the waqif, who himself functions as the first mutawalli can resign his office, and, out of his own residuary or general powers as waqif, appoint his own successor, provided that thereby he does not oust any express power already conferred by the deed of wakf. Appointment cannot, however, enure against the express terms of the wakf and must terminate with the life of the waqif. But another mutawalli appointed by waqif has no such powers, unless appointed in a general manner conferring all such CRP(Wakf) No.172/2013 12 powers.
17. Learned Author Asaf A.A.Fyzee in Outlines of Muhammadan Law (4th Edition) at page 316 has stated as follows:
"A mutawalli has no right to transfer the office to another, but he may appoint deputies or agents to assist him in the administration of the wakf. The wakif, however, who is himself the first mutawalli, can resign his office during his own lifetime and appoint another mutawalli"
Learned Author Sir Dinshaw Mulla in his work titled as "Principles of Mahomedan Law" (19th Edition) at page 175 mentions about the rules relating to the appointment of mutawalli in the following words:
"Appointment of mutawalli.-(1) The founder of the wakf has power to appoint the first mutawalli, and to lay down a scheme for the administration of the trust and for succession to the office of mutawalli. He may nominate the successors by name, or indicate the class together with their qualifications, from whom the mutawalli may be appointed, and may invest the mutawalli with power to nominate a successor after his death or relinquishment of office.
(2) If any person appointed as mutawalli dies, or refuses to act in the trust or is removed by the Court, or if the office of mutawalli otherwise becomes vacant, and there is no provision in the deed of wakf regarding succession to the office, a new mutawalli may be appointed -
(a) by the founder of the wakf ;
(b) by the executor (if any);
(c) if there be no executor, the mutawalli for
the time being may, subject to the provisions of sec.205 below, CRP(Wakf) No.172/2013 13 appoint a successor on his death-bed;
(d) if no such appointment is made, the Court may appoint a mutawalli."
At page 178, the learned Author clarifies about the powers of a mutawalli to appoint a successor on his death-bed in the following words:
"If the founder and his executor are both dead, and there is no provision in the wakfnama for succession to the office, the mutawalli for the time being may appoint a successor on his death-bed. He cannot, however, do so while he is in health, as distinguished from death-illness. Nor if the office goes by hereditary right." (underline supplied)
18. We have also referred to the text book on the Law of Wakfs (II Edition) by Shri S.A.Khader. Learned Author at page 42 states as follows:
"Transfer of the office of mutawalli - It is a well settled principle of Islamic law that the office of mutawalli is not transferable. Even the right to receive offering at a Durgah or a shrine cannot be transferred by the hereditary ministrant."
19. Opinions expressed by eminent jurists and scholars of Muhammadan Law are clear and definite . In the absence of a power conferred on the mutawalli to appoint his successor, he cannot do so during his life time. It is also not lawful for him to transfer or release his mutawalliship in favour of another. Here, none of the parties have a case that the plaintiff was appointed as mutawalli duly empowering him to transfer or nominate a successor.
20. Learned counsel for the plaintiff contended that the proposition of law that a mutawalli has no power to transfer his office to another has been CRP(Wakf) No.172/2013 14 considered and confirmed by this Court in Badagara J.P.D. Committee v. Ummerkutty Haji (2001 (3) KLT 289). The Division Bench of this Court in paragraph 9 of its judgment held as follows:
"In Mulla's Principles of Mahomedan Law, Nineteenth Edition at page 195 under the heading "214. Office of mutawalli not transferable", it is stated as follows: "A mutawalli has no power to transfer the office to another, unless such a power is expressly conferred upon him by the founder. But he may appoint a deputy to assist him in management of the endowed property". Thus, as per the law, there cannot be any transfer of mutawalliship. ............."
21. Learned counsel for the plaintiff relied on a decision rendered by the Supreme Court in Sayed Muhammed Mashur Kanhi Koya Thangal v. Badagara Jamayath Palli Dharas Committee and others (AIR 2004 SC 4365). That was a dispute relating to the title to certain property. After a full dressed trial, the trial court decreed the suit, declaring that the plaintiff - committee has got the title to the property as mutawalli in management of the Mosque and common graveyard. Decree for recovery of possession of the plaint schedule item was also granted. The suit was taken up in appeal before the District Court. The first appellate court allowed the appeal and dismissed the suit, against which a Second Appeal was filed before this Court. Defendants in the suit filed a cross objection also challenging the finding in so far as it went against them. Division Bench of this Court considered various questions, inter alia, the question whether the right of a mutawalli is transferable. Notwithstanding the Supreme Court set aside the judgment of this Court on other grounds, it affirmed the CRP(Wakf) No.172/2013 15 finding of this Court that the mutawalliship could not be validly transferred in favour of the plaintiff therein. Plaintiff relies on this finding of the Supreme Court to fortify his contentions.
22. Learned counsel for the revision petitioners (contesting defendants) relied on a Bench decision of the Allahabad High Court in Ali Asghar Hasan v. Farid Uddin Hasan (AIR (34) 1947 Allahabad 261). He urged us to rely on the proposition of law stated thus:
"There is nothing in the Muhammadan law which prevents the appropriator or waqif, who is himself the first mutwalli, from resigning his office, and, out of his own residuary or general powers as waqif or appropriator, appointing his own successor provided that thereby he does not oust any express power already conferred by the deed of waqf. .........."
23. On a careful reading of the decision, it can be seen that there is an ocean of difference between the powers of the appropriator or the waqif, who himself functions as the first mutawalli and that of the mutawalli appointed by the waqif. The law on this point has been clearly enunciated by the leading authorities on Muhammadan Law as mentioned supra. Therefore, the principles in the decision relied on by the defendants undoubtedly can have no application to this case.
24. The upshot of the discussions is that Muhammadan Law does not generally empower a mutawalli to transfer his right during life time. There is a clear distinction in the matter of powers between the appropriator or the waqif CRP(Wakf) No.172/2013 16 who himself becomes the first mutawalli and a mutawalli appointed by the waqif for administering the wakf. Although the waqif may resign his office as first mutawalli and out of his own residuary or general powers as waqif appoint his own successor, the mutawalli appointed by the waqif or any other person succeeding such a mutawalli has no such unbridled power. All the leading authorities on Muhammadan Law declare that a mutawalli cannot assign or transfer his office to anyone or appoint another during his life time, unless he is clothed with powers which are so general in nature. Muhammadan Law recognises the power of a mutawalli to nominate his successor when he is in death-bed with certain restrictions mentioned above. Hence it is clear that the plaintiff, if at all he wished to do so, is prevented by law from transferring/surrendering his right to an individual or to a body of individuals. Hence we are of the view that the contentions of the revision petitioners/contesting defendants that the plaintiff could surrender/release/transfer his mutawalliship to the committee and he did surrender/release/transfer his office, which of course the plaintiff strongly denied, are not legally sustainable.
25. We shall now examine the evidence in this case. PW1 is the plaintiff. In his chief-examination, he spelt out his case in detail. Ext.A1 partition deed (Ext.A2 is the true translation in Malayalam) is not a disputed document. It is seen that the members of Puzhakkara Tarwad and the lineal descendants of an erstwhile seniormost member of Puzhakkara Tarwad, who are the members of Cheenamadathu Tarwad, entered into Ext.A1 partition deed. Plaintiff is the CRP(Wakf) No.172/2013 17 3rd executant in the document. Admittedly wakf property has been set apart in Ext.A1 as FI schedule. Income from the properties described in schedules F2 to F5 were to be utilized for the up-keep of the wakf. Undisputedly those properties are not part of the wakf. The dispute is only with respect to the Mosque and other institutions in item No.1 in F schedule of Ext.A1 partition deed.
26. PW1 deposed that even before Ext.A1 partition deed the Mosque was established in the plaint schedule property and that is not challenged. PW1 admitted that the expenses of the Mosque is now mainly met by the public contribution. A Madrassa is functioning in the wakf property. Madrassa teachers and other staff are to be paid. In cross-examination, PW1 stated that from 1980 onwards he thought it fit to appoint a committee for aiding him in the administration of the wakf. PW1 asserted that he is the president of the committee right from its inception and he remains so even today. The contesting defendants admitted this contention of the plaintiff. PW1 asserted that his right to mutawalliship was never transferred or alienated or surrendered to anyone including the committee. Ext.A3 is the certified copy of the injunction order in O.S.No.194 of 1979 on the file of the Munsiff's Court, Hosdurg. Case of PW1 is that he filed the suit as his brother Kunhabdulla and some others started causing problems in his administration of the Mosque as mutawalli. After suffering a temporary injunction order, the defendants stopped their interferences and therefore, the plaintiff found it unnecessary to prosecute the suit thereafter. The suit was, therefore, withdrawn. The contesting defendants CRP(Wakf) No.172/2013 18 have a case that after filing the said suit, there was a mediation at the aegis of late P.A. Abdulla Moulavi (Mattannur) who was the Kazi of Kanhangad. Defendants contended that pursuant to the mediation, the suit was settled out of court. Plaintiff stoutly denied the case of mediation and settlement of the suit. To establish that the suit was dismissed, Ext.B51, copy of the decree in the said suit, was produced. It only shows that the suit was dismissed as settled out of court. On what terms the suit was settled is not evident from Ext.B51. Hence that contention of the defendants have gone unestablished.
27. In order to establish that PW1 remained to be the mutawalli of the wakf even on the date of suit, he relied on certain documents. Ext.A4 series are the revenue receipts and notices issued from the Wakf Board. These documents describe the plaintiff as mutawalli and they relate to various periods. Exts.A15, A16 and A17 are the Annual Statements of Income and Expenditure submitted by the wakf to the 5th defendant, the Wakf Board, relating to the years 2010, 2011 and 2009 respectively. In all these documents, the plaintiff is described as mutawalli of the wakf. He has signed and submitted these documents, which were accepted by the Wakf Board. There is no sustainable reason shown by the contesting defendants to disbelieve the genuineness of these documents. Ext.A18 is the salary account containing the signature of the plaintiff as President of the Committee. Of course that is relating to 2012, in which year the suit was filed. In various pages of Ext.A6 minutes book, relating to the administration of the Mosque starting from 30-04-2010, the plaintiff has been described as mutawalli (See pages 41 and 63). These documents improbabilise the case of CRP(Wakf) No.172/2013 19 the contesting defendants that the plaintiff surrendered his mutawalliship to the Juma-ath even before 1994. Exts.A6 to A12 are minutes books kept in connection with various meetings touching the administration of the mosque. From all these documents, it can be seen that the outcome of every meeting was intimated to the President of the Committee and his approval obtained. In Ext.A10 minutes, at page 28, we find a resolution of the meeting of Kammadam Muslim Jama-ath general body convened on 31-08-2007. It mentions about the approval of the income and expenditure account submitted by the Secretary of the Committee. The general body also approved 13 member committee suggested by the mutawalli (plaintiff) for administration of the mosque.
28. Learned counsel for the plaintiff submitted that two things are discernible from this. Firstly, the plaintiff was functioning as mutawalli even on 31-08-2007. Therefore the case of the contesting defendants that he transferred his mutawalliship before 1994 and the transfer was intimated to the Wakf Board in 1994 falls to ground. Secondly, it will show that the committee constituted for the administration of the wakf is only a nominee of the plaintiff. Certainly there is some force in these contentions. In spite of cross examination on PW1, we find no tangible reason to discard his testimony. It remains credible in spite of lengthy and searching cross examination.
29. Now we shall turn to the evidence adduced by the contesting defendants. DW1 in the chief examination stated a definite case that the plaintiff functioned as mutawalli for certain time after Ext.A1 partition deed. It is so deposed by him, without specifying any month or year. DW1 stated that before CRP(Wakf) No.172/2013 20 1980, a committee was put in place for the administration of the mosque as there was clamour for handing over the mutawalliship to the Committee. But till 1994, communications were issued by various authorities, including the 5th defendant, addressed to the plaintiff. Therefore, on 03-01-1994 the general body of the committee was convened. After deliberation, a decision was taken by the general body that the plaintiff should hand over the right of administration of the mosque to the committee. Ext.B4 is the copy of the resolution purported to be taken in this connection. This document is strongly denied by the plaintiff. Learned counsel for the plaintiff submitted that Ext.B4 does not contain either the signature of the plaintiff or the date on which the alleged resolution was moved and adopted. It is seen that various writings in Ext.B4 were written in different hands, that too without the signature of any of responsible person in the committee. Ext.B4 cannot be relied on to find that the plaintiff heeded to the request of the committee members to transfer his mutawalliship. When DW1 was cross examined, all these infirmities were put to his notice, for which he had no satisfactory explanation.
30. In order to advance the argument that after filing Ext.B51 suit there was a mediation, Ext.B3 letter is produced. It can be seen from Ext.B3 letter that the then Kazi of Kanjangad convened a meeting on 25-06-1980 to resolve the dispute retaining to Kammadam Muslim Jama-ath. However this will not go to show that Ext.B51 suit was dismissed as withdrawn on the understanding that the plaintiff would surrender his mutawalliship to the congregation.
31. Exts.B8 to B16 are the documents produced to show that the CRP(Wakf) No.172/2013 21 committee disbursed the salary of Madrassa teachers and collected contribution from public for the upkeep and maintenance of the mosque. Ext.B8 would however show that there was a demand by the Wakf Board to the committee for sending up the contribution. All these documents would only establish that there was a committee in place for the administration of the mosque. It is pertinent to note that the plaintiff has no dispute as to the existence of a committee. He only disputed the case that the committee was functioning as mutawalli. Admittedly, the plaintiff is the President of the committee from the date of its formation till the date of suit. The above mentioned documents are insufficient to establish the contention of the contesting defendants that the mutawalliship was transferred by the plaintiff to the committee. Similarly Exts.B31 to B33 demand notices by the Wakf Board also will not show the exclusive right of the committee to administer the mosque as mutawalli. None of the other documents produced by the contesting defendants will substantiate their case.
32. When DW1 was cross examined he stated that the plaintiff is having 7 wives and he was residing about 100 K.M away from Wakf. These are the impediments for the plaintiff to discharge his function as mutawalli. That is why the congregation wanted him to be removed. Even though DW1 attempted to project a case that the signature seen on minute books marked as Ext.A6, A8 and A9 to A12 were not that of the plaintiff, no serious attempt was made to prove that contention. This assumes importance especially when the plaintiff specifically stated that he, in the capacity as the President of the committee and as mutawalli, signed those minutes. The disputed meeting which gave rise to the CRP(Wakf) No.172/2013 22 filing of the suit happened on 15-07-2012. DW1 deposed that even in that meeting the plaintiff was elected as President. Thereafter, due to difference of opinion, the plaintiff walked out of the meeting. DW1 answered to a specific question that till 15-07-2012 the plaintiff was discharging the duties of mutawalli as President of the committee. DW1's evidence that the plaintiff became mutawalli of the mosque in 1980 is against his own case pleaded in the written statement.
33. DW2 is the nephew of the plaintiff. He was a defendant in Ext.B51 suit. A specific suggestion was put to this witness that he was enemical to the plaintiff in connection with some property dispute. Attention of DW2 was drawn to a statement given by him in a proceedings before the Land Tribunal, Neeleswaram in S.M.No.5/1980 (Ext.A36). On the basis of this document, a suggestion was put to him that DW2 was enemical to the plaintiff, which he denied. Admittedly, DW2 did not participate in the disrupted meeting held on 15-07-2012. Testimony of this witness coupled with that of DW1 will not show that the plaintiff ever surrendered/transferred his right of mutawalliship to the committee. Therefore, we find on the basis of the evidence that the plaintiff continued as President of the committee, formed by him for aiding the administration of the mosque and he always retained the mutawalliship with him. Finding in this regard made by the Tribunal is correct and is only to be confirmed.
34. Therefore, contentions of the contesting defendants cannot be legally and factually sustained.
CRP(Wakf) No.172/2013 23
35. Contesting defendants though raised a plea that a suit for injunction simplicitor is not maintainable as the plaintiff's right to mutawalliship itself is challenged and that plaintiff should have sought the relief of declaration also, those contentions are not pressed at the time of hearing. The plaintiff asserted his right to administer the wakf as mutawalli and apprehended interference by the defendants in his administration of the wakf. He has specifically put forward a cause of action. Hence we find that a suit for injunction simplicitor is maintainable going by the averments in the plaint.
36. Revision petitioners/contesting defendants filed I.A.No.1433 of 2013 for receiving additional evidence. The power of this Court in revision is to call for and examine the records relating to any disputed question or other matter, which has been determined by the Tribunal, for the purpose of satisfying this Court as to the correctness or legality or propriety of such determination. Therefore, the acceptability of additional evidence in a revision petition itself is a debatable question. Further, it is settled law that even in an appeal, the court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point. Similarly where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence at a later stage of the proceedings. Learned counsel for the plaintiff relied on Union of India v. Ibrahim Uddin and another ((2012) 8 SCC 148) to contend these propositions. It is indubitable that an additional evidence cannot be adduced as a matter of course. We do not find any necessity to consider the additional evidence at this stage of the proceeding CRP(Wakf) No.172/2013 24 as it is not going to improve the case of the revision petitioners/contesting defendants. Therefore, the above said interlocutory application is only to be dismissed. We do so.
37. For the above said reasons, we find that the revision petition is completely devoid of any merit and is liable to be dismissed.
In the result,
i. Revision Petition is dismissed.
ii. Parties are directed to suffer their costs.
K.M.JOSEPH, JUDGE.
A. HARIPRASAD, JUDGE.
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