Fuaad Musvee vs M.Shuaib Musvee on 6 March, 2008

[Cites 15, Cited by 4]

Madras High Court

Fuaad Musvee vs M.Shuaib Musvee on 6 March, 2008

O.S.A.No.244 of 2005 is directed against the order of the learned single Judge of this Court dated 29.06.2005 made in O.A.No.1749 of 2005 in C.S.No.66 of 2005. O.S.A.No.60 of 2007 is directed against the common order dated 29.01.2007 by another learned single Judge of this Court made in O.A.No.78 of 2005 and O.A.No.1748 of 2005 in C.S.No.66 of 2005. As both the appeals have arisen out of orders passed in the original applications in one and the same civil suit, for the sake of convenience and with the consent of the parties, both appeals are taken up for disposal by this common judgment.

2. The brief facts leading to the filing of these appeals are as follows:

i) One Hajee Ebrahim Sait executed a wakf deed on 30.11.1923. Under the said deed, three items of immovable properties, all situated in Bangalore and belonging to the said Hajee Ebrahim Sait, were endowed as a wakf-alal-aulad. In clause 12 of the said wakfnama, it has been provided that a sum of Rs.1,770/- out of the annual income derived from the endowed properties shall be spent for various pious and charitable purposes mentioned in the wakf deed. Clause 13 of the deed provides that the surplus income shall be divided among the members of the family of the wakif and their descendants equally for ever until their posterity becomes extinct and that in the event of such extinction, the surplus income shall be spent for the benefit of poor mohammedans at Bangalore or Madras (Chennai), preference being given to the bringing up and maintenance of Muslim orphans and widows. As per the wakf deed the wakif (Hajee Ebrahim Sait) remained as founder Muthavalli till his death and thereafter his son Mohamed Musa Sait became the Muthavalli in accordance with the line of devolution of Muthavalliship provided in the wakf deed. The succession to the office of Muthavalli from Mohamed Musa Sait shall be to his lenial male descendants subject to a rider that the Muthavalli for the time being shall have the right to nominate a successor from among the descendants of Mohamed Musa Sait in accordance with the mode of succession to the office of Muthavalli prescribed in the deed. In case the Muthavalli passes away without nominating his successor, the deed provides that the beneficiaries in the family of Mohamed Musa Sait shall nominate a successor to the office of Muthavalli with the majority of such beneficiaries supporting such nomination. Clause 19 of the wakfnama provides that the Muthavalli shall be removable from office by the Court for breach of trust or misconduct on the complaint of two or more beneficiaries.

ii) In 1993 Mr.Avais Musvee was the Muthavalli. During his Muthavalliship, a suit in C.S.No.1127 of 1993 came to be filed on the original side of this Court by the beneficiaries. The said suit ended in a compromise and Mr.Fuaad Musvee, the first appellant/first defendant herein was appointed as Muthavalli in the place of Avais Musvee by the judgment and decree of this Court dated 21.10.1994.

iii) Now, the respondents herein, being four of the beneficiaries of the wakf, have approached this Court on the Original Side with the present suit C.S.No.66 of 2005 alleging breach of trust, mismanagement, failure to maintain and submit proper accounts and use of the wakf property for his personal gain by the first appellant and praying for his removal as Muthavalli. The reliefs, prayed for in the suit are:-

1) to direct the removal of the first defendant from the office of Muthavalli of the second defendant Wakf in accordance with the provisions of Clause 19 of the Wakf deed;

2) to grant a permanent injunction restraining the first defendant from acting as Muthavalli of the second defendant; and

3) to appoint the plaintiffs viz, Mr.M.Shuaib Musvee, Mr.M.Najm Musvee, Mr.Md.Hussain Sait, Mr.Basheer Sait as the Muthavallis of the second defendant until a suitable person is duly appointed as Muthavalli.

iv) Pending disposal of the civil suit, the respondents herein (plaintiffs) filed O.A.No.78 of 2005 praying for certain interim measures pending disposal of the suit. The interim measures sought for are:-

1) to appoint a receiver to take charge of the affairs of the second respondent/second defendant wakf pending disposal of the suit;

2) to grant an interim injunction restraining the first respondent/first defendant from acting as Muthavalli of the second respondent/second defendant wakf pending disposal of the above suit; and

3. to grant an interim injunction restraining the first respondent/first defendant from entering into any lease agreement or otherwise creating any encumbrance on any of the immovable properties of the Wakf, more specifically described in the schedule mentioned in the judges summons pending disposal of the suit.

In the said application an interim order came to be passed on 01.02.2005 which reads as follows:-

"that M.Faud Musvee, the first defendant/first respondent herein, be and is hereby restrained by an order of interim injunction until further orders of this Court, from entering into any lease agreement or otherwise creating any encumbrance on an of the immovable properties of the wakf, morefully setout in the schedule hereunder."

v) After being served with the judge's summons and the interim order, the appellants/defendants filed two applications O.A.1748 of 2005 and O.A.No.1749 of 2005, the former being one for vacating the interim order and the latter being one for the rejection of the plaint on question of jurisdiction in the light of the provisions of the Wakf Act, 1995. The learned Single Judge (Thiru.Justice D.MURUGESAN) before whom O.A.No.1749 of 2005 came up for hearing, negatived the contention of the appellants herein holding that the suit was not barred by the provisions of the Wakf Act, 1995 and dismissed the said application by an order dated 29.06.2005. The correctness of the said order is put in issue in O.S.A.No.244 of 2005.

vi) During the pendency of O.S.A.No.244 of 2005 before the Division Bench, O.A.No.78 of 2005 and O.A.No.1748 of 2005 came up for hearing before another learned single Judge (Mr.Justice S.Rajeswaran) of this Court. The appellants herein, besides denying the plaint averments and the averments found in the affidavit filed in support of the application O.A.No.78 of 2005, raised a contention questioning the territorial jurisdiction of the Court to entertain the suit and prayed for an order vacating the interim injunction granted in O.A.No.78 of 2005 and for the dismissal of the said application. The learned single Judge, after hearing both sides, by a common order rejected the challenge made to the jurisdiction of the Court to entertain the suit and directed the posting of O.A.No.78 of 2005 (injunction application) and O.A.No.1478 of 2005 (vacate injunction application) to be heard on merits. The said order was passed on 29.01.2007. Challenging the said order, the appellants have filed O.S.No.60 of 2007.

3. a) The point that arises for consideration in O.S.A.No.244 of 2005 is:-

"whether the suit is barred by the provisions of the Wakf Act, 1995?" b) Likewise, the point that arises for consideration in O.S.A.No.60 of 2007 is:-

"whether this Court does not have the territorial jurisdiction to entertain and try the suit?."

4. We have heard the submissions made by Mr.V.Raghavachari learned counsel for the appellants and Mr..P.Arivind Datar learned Senior Counsel for the respondent.

5. A common issue though on different grounds, relating to the jurisdiction of this Court to entertain the civil suit concerned in these appeals has been raised in these appeals. So far as O.S.A.No.244 of 2005 is concerned, the appellants contend that the civil Courts' jurisdiction including that of the High Court to entertain the suit stands ousted by Section 85 of the Wakf Act, 1995 (hereinafter referred as the Act) and that the tribunal constituted under Section 83 of the Act alone shall have exclusive jurisdiction to determine any dispute relating to a wakf or wakf property. So far as O.S.A.No.60 of 2007 is concerned, it is the contention of the appellants that this Court does not have territorial jurisdiction to entertain the suit, since all the properties of the wakf are situated in Bangalore, Karnataka State. Though the appellants did have the opportunity of seeking the rejection of plaint on both the grounds, namely bar of jurisdiction of the civil Court provided under Section 85 of the Act and the absence of territorial jurisdiction of this Court to entertain the suit relating to the affairs of the suit wakf in O.A.No.1749 of 2005 itself, the appellants had chosen to file the above said application for the rejection of the plaint only on the ground of bar provided under Section 85 of the Act, reserving the other ground to be raised in O.A.Nos.78 of 2005 and 1748 of 2005. Therefore, it has become necessary to deal with the issues involved in the appeals separately.

O.S.A.No.244 of 2005:

6. It is the contention of the learned counsel for the appellants that the suit wakf is not a wakf-alal-aulad simplicitor, but a wakf-alal-aulad composite and that hence the wakf Act 1995 is applicable to the suit wakf, namely Haji Ebrahim Sait Wakf. The further contention of the learned counsel for the appellants is that the jurisdiction of the civil Courts including that of the High Court stands ousted by Section 85 of the Act. A number of judgments have been cited by the learned counsel for the appellants to show that the suit wakf, namely Hajee Ebrahim Sait wakf is a valid wakf under Muslim Law. It is not necessary to refer to all those decisions cited by the learned counsel for the appellants in an attempt to show the suit wakf to be a legally valid wakf, for the simple reason that the said point is not at all in issue. Neither the respondents nor the appellants have taken the stand that the suit wakf is not a valid wakf recongnised by Muslim Law. On the other hand, both parties have proceeded on the assumption that the suit wakf is a legally valid wakf.

7. In Muslim Law a wakf means permanent dedication by a Muslim of any property for any purpose recognised by Muslim Law as pious, religious and charitable. A wakf is created by mere declaration of endowment by the owner of the property, and upon such declaration, the property immediately vests in God Almighty. In case of a Public Wakf, the corpus as well as the usufruct, vests in God, since the usufruct becomes immediately applicable to the enumerated holy purposes. But in case of a private wakf or Wakf-alal-aulad, only the corpus of the property vests in God immediately and the enjoyment of the usufruct is postponed till after the extinction of the Wakif, his family and descendants. A Public Wakf is one for religious, pious and charitable purposes and a Private Wakf is one for the benefit of the settlor's family and descendants. Such a private wakf as per the the Muslim Law to be valid should have reserved the ultimate benefit for the purposes recognised by Muslim Law as religious, pious and charitable.

8. Prior to the enactment of the Musalman Wakf Validating Act, 1913 (Act VI of 1913) it was held by the privy council that a wakf for the benefit of the family (private wakf) was invalid if the gift to the charity was illusory because of its smallness, uncertainty or remoteness. In ABDUL FATA MOHAMED v. RUSSOMOY (1894) 22 CAL.619, the Privy Council held that a Wakf for the benefit of the family was invalid and no effect could be given to it if the primary object of the wakf was aggrandizement of the family and the gift to the charity was illusory whether from the smallness of the amount or from its uncertainty or remoteness. The said decision created dissatisfaction among the Muslim Community in India and based on their representation Mussalman Wakf Validating Act, 1913 came to be passed validating private wakfs called Wakfs-alal-aulad provided in such wakfs the ultimate benefit is reserved for the religious, pious or charitable purpose. There was no express provision giving the said Act retrospective application validating the wakfs created prior to the passing of the 1913 Act. Hence by an Act of 1930, the Mussalman Wakf Validating Act, 1913 (Act VI of 1913) was made to apply retrospectively. Section 2(1) of Act VI of 1913 defines a wakf as follows:

"Wakf" means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable"

Section 3 of the said Act reads as follows:

"Power of Mussalmans to create certain wakfs.- It shall be lawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of Mussalman law, for the following among other purposes:

(a) for the maintenance and support wholly or partially of his family, children or descendants, and

(b) where the person creating a wakf is a Hanafi Mussalman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated:

Provided that the ultimate benefits is in such cases expressly or impliedly reserved for the poor of for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character."

9. Thereafter, the wakf Act 1954 came to be passed for the better administration and supervision of wakfs and to prevent mismanagement of wakf properties. In the said Act, wakf had been defined as permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable including a wakf-alal-aulad to the extent to which the property was dedicated for any purpose recognised by Muslim Law as pious, religious or charitable. Similar provision has been incorporated in the Wakf Act, 1995. Thus Muslim Law, recognises Public Wakf as well as Private Wakf called Wakf-alal-aulad. A private wakf called Wakf-alal-aulad to be valid shall reserve the ultimate benefit for a purpose recognised by Muslim Law as religious, pious or charitable. A Wakf-alal-aulad shall not be deemed to be invalid merely because the ultimate benefit reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of the family, children and descendants of the person creating the wakf. The essence of the change brought about by the Mussalman Wakf Validating Act, 1913 (Act VI of 1913) is that a Wakf-alal-aulad (private wakf) to be valid should have reserved the ultimate benefit for the poor or for any other religious, pious or charitable object of a permanent nature notwithstanding that the ultimate benefit reserved for such purpose is negligible or so remote in point of time. The reservation of ultimate benefit for any such object imparts to a disposition of property the character of a wakf under the Act VI of 1913 and exercises a validating influence upon the disposition in spite of the remoteness of the benefit.

10. In the light of the above said provision contained in Section 3 of the Mussalman Wakf Validating Act, 1913 (Act VI of 1913) and the above made discussion in this regard, there cannot be any doubt over the fact that the suit wakf, a Wakf-alal-aulad is not invalid as the ultimate benefit after the extinction of the family, descendants and posterity of the wakif, the entire income from the wakf board has been directed to be utilised for poor and other purposes recognised by Muslim Law as religious, pious and charitable. On the other hand, it is the contention of the learned counsel for the appellants that the suit wakf is not a Wakf-alal-aulad (private wakf) simplictor, but a wakf-alal-aulad composite in so far as a portion of the income derived from the properties of the wakf board has been directed to be spent for pious, religious and charitable purposes even before the extinction of the family, descendants and posterity of the wakif.

11. In support of the above contention, the learned counsel for the appellants has pointed out the fact that the Clause 12 of the wakfnama provides that a sum of Rs.1,770/- out of the income derived from the properties of the wakf should be spent annually for various purposes spelt out in the said clause, which are no doubt recognised by Muslim Law as pious, religious and charitable purposes. It is true that a total sum of Rs.1,770/- out of the income derived from the wakf board has been directed to be utilised annually for various purposes recognised to be pious, religious and charitable. For the sake of convenience clause 12 of the wakfnama is reproduced hereunder:-

"12. That after deducting the disbursements referred to above from the income of the above endowed properties mentioned in the schedule hereunder written the surplus shall be expanded as follows:-

(1) Rs.200/- to be annually sent to Mecca for distribution to the poor Mohamedans there.

(2) Rs.200/- to be sent annually to Medina for distribution to the poor Mohamedans there.

(3) Rs.150/- to be given annually to some person possessing Asarai Sherrif of the Holy prophet, and who exhits the same and celebrate Holy Prophets Birthday in the month of Rabinl Aval at Madrasor Bangalore.

(4) Rs.100/- to be given annually to some person possession Asari Sherif of Hazarat Shaik Abdul Khadir Jeelani of Bagdad and who exhibits the same in Rabius-Sari and celebrates the Birthday of the above named Holy Saint at Madras or Bangalore.

(5) Rs.350/- to be paid annually to the Kutchi Memon Jamath at Madras, and Bangalore as follows:-

Rs.150/- in Rabiul Aval for celebrating the Holy prophets Birthday, Rs.100/- in Rabius Sari for celebrating Saint Shaik abdul Kadir's Birthday, Rs.100/- in Moharrum for celebrating the many room of Inams Hasan and Hussain.

(6) Rs.240/- to be paid annually in 12 monthly instalments of Rs.20/- to some Mohomedan Girls Schools or some Mohomedan orphanage either at Madras or Bangalore (for the benefit of the soul of deceased daughter Mariam Bee) (7) Rs.240/- to be paid annually in 12 monthly instalments to some society or Anjuman, which supplies shrouds and pays the expenses of burial of poor Mohomedans or to some Mohomedns orphanage either at Madras or Bangalore (for the benefit of the soul of my deceased daughter Ameena Bee) (8) Rs.240/- to be paid annually by 12 monthly instalments of Rs.20/- a month to one or more Hafivas (Reciters of Quran) to recite Quran daily for the benefit of myself, my deceased wife and my 2 deceased daughters."

12. Per contra, the learned Senior Counsel for the respondents would contend that the Wakf Act, 1995 (43 of 1995) shall be applicable to a Wakf-alal-aulad only to the extent to which the property is dedicated for the purpose recognised by Muslim law as pious religious and charitable. Section 3 (r) of the Wakf Act 1995 contains the definition of Wakf which reads as follows;

" 3(r) 'Wakf' means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes-

1) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;

(ii) "grants", including mashrut-ul-khidmant for any purpose recognised by the Muslim law as pious, religious or charitable; and (iii a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, and "wakf" means any person making such dedication."

Referring to the said provisions, the learned Senior Counsel for the respondents contended that a Wakf-alal-aulad in which a portion of the income derived from the properties of the wakf has been directed to be used for the pious, religious or charitable purposes recognised by Muslim Law even prior to the extinction of family, descendants and posterity of the wakif, has to be differentiated from a wakf in which the dedications of the property itself has been made for the purpose of the family as well as the religious, pious and charitable objects. According to the learned Senior Counsel for the respondents, the second type of wakfs alone can be designated as composite wakf having the characteristics of public wakf as well as private wakf and in such cases alone the Wakf Act 1995 shall be applicable, that too to the extent of the properties dedicated by the wakif in praesenti for the purpose recognised by Muslim Law as religious pious and charitable without postponing the same till the extinction of the family, descendants and the posterity of the wakif.

13. The learned Senior counsel for the respondents would contend further in all cases wherein a portion of the income derived from the properties of the wakf alone has been directed to be utilised for the purposes recognised as religious pious and charitable, the predominant purpose for which the wakf was created should be taken into account in order to decide whether the management of the wakf is governed by the provisions of the wakf Act, 1995. Section 3(r) of the Wakf Act, 1995 makes a Wakf-alal-aulad a wakf governed by the said Act only to the extent of the property dedicated for any purpose recognised by Muslim Law as pious, religious or charitable and hence the provisions of the said Act would be applicable only to an extent of Rs.1,770/- directed to be spent annually for the said purposes enumerated in the wakfnama, the learned Senior counsel for the respondents contended. According to the said submissions made by the learned Senior Counsel for the respondents, the authorities constituted under the Act were entitled to regulate the spending of the above said amount which is equal to the enforcement of the specific 'Kattalai' and cannot be either controll or interfer with the management of the suit wakf which is a private wakf (Wakf-alal-aulad) so long as the family, descendants or posterity of the wakif does not get extinct and any dispute concerning the management of such private wakf should be dealt with by ordinary civil Courts.

14. The learned Senior Counsel for the respondents also submitted that even in cases of such dedication of a part of the usufruct alone in praesenti for the purposes recognised as religious pious or charitable, the predominant purpose for which the wakf was created should be looked into to decide the applicability of the provisions of the wakf Act in respect of the management of the wakf and that if the predominant purpose of the wakf in praesenti is the benefit of the family and the amount directed to be spent out of the income for religious, pious or charitable purpose is only meager compared with its counter part, it must be held that the provisions of the Wakf Act, 1995, would not be applicable so far as the management of the wakf is concerned. When the contribution to be made for the above said religious, pious or charitable purposes is negligible, according to the learned Senior Counsel, the above said preposition will apply with great force.

15. The learned Senior Counsel for the respondents has also made the following submissions;

"Admittedly, the income derived from the properties of the suit wakf is several lakhs of Rupees and only a negligible portion (namely a sum of Rs.1,770/-) of the income derived from the properties of the suit wakf has been directed to be spent for the religious, pious and other charitable purposes enumerated in Clause 12 of the wakfnama and the entire surplus income has been directed to be divided among the family members and descendants of the wakif in equal proportionate in propriety. Of course, the ultimate benefit is reserved with the poor and other purposes recognised to be religious pious and charitable. In the event of extinction of the descendants and posterity of the wakif, the said Act shall not make the sauit wakf a Public wakf governed by the Wakf Act, 1995 as then the wakf shall have ceased to be Wakf-alal-aulad and acquired character of a public wakf as defined in the Act. At present the said Act shall be applicable only in respect of the above said sum of Rs.1,770/- to be contributed for the religious, pious or charitable purposes mentioned in Clause 12 of the wakfnama. When the test of predominant purpose is applied to the case on hand, one can came to a definite conclusion that the management of the wakf shall be outside the purview of the Wakf Act, 1995.

16. In support of his contention, the learned Senior Counsel for the respondents, has drawn our attention to the judgment of the Honourable Apex Court in TAMIL NADU WAKF BOARD vs. LARABSHA DARGA PANRUTI in Civil Appeal No.1559 of 2007 dated 23.11.2007. In the said Judgment involving similar facts, the Honourable Supreme Court has made the following observations:

"7. As rightly observed by the High Court, inasmuch as a portion of the income is to be spent for the family apart from pious, religious and charitable purposes, it satisfies the character of a private Wakf i.e. Wakf-alal-aulad. The said document i.e. Ex.A-22 also supports the claim of the plaintiffs that they are the hereditary Muthavallis of the private Wakf. These aspects have been fully considered and rightly concluded by the trial Judge as well as the High Court."

17. In the said case decided by the Honourable Supreme Court, the suit had been filed before the trial Court for a declaration that the suit properties belonged to a wakf-alal-aulad (private wakf) and that the wakf board did not have jurisdiction to appoint Muthavalli and for an injunction against the Wakf Board. The suit was decreed by the trial Court and the first appellate Court reversed the judgment of the trial Court and dismissed the suit. The second appellate Court, namely the High Court restored the judgment and decree of the trial Court. The civil appeal preferred before the Honourable Supreme Court on special leave was dismissed. In the said Judgment the Honourable Supreme Court has made further observations as follows:-

" The plaintiff claims that the suit property belongs to the private wakf, Wakf-alal-aulad and it is not a public wakf. On the other hand it is the specific stand of the Wakf Board the same is a public Wakf. As said earlier the High Court heavily relied on Ex.A22 which is the proforma maintained by the Wakf Board. The learned Judge has extracted all the details/entries made in the proforma. Those details are available in the High Courts judgment and we perused the same. It mentions that the object of the wakf is for the support of feeding the fakirs and lighting the tomb of Larabsha and to do fateah. It further shows that these services are to be rendered without alienating the properties. Name of the beneficiaries are noted as 'Mrs.Safia Bi, wife of Syed Umar, Larabsha Dharga. In Column-9, the rule of succession, it is stated that 'hereditary as per T.D." It further shows that out of the income derived from the suit property, a portion of the same is meant for pious, religious and charitable purposes and remaining was used for the maintenance of the family. Column-17 of the remarks states that originally R.S.No.24, 205 acres dry belong to Nur Mohammed Dargah, Panruti. One Inayath Shah a sixth successor Jainishin conveyed this land containing houses and shops to one of his disciples shabansha by means of settlement ('Hibba') in 1939. This Shanbans, in his turn made a settlement in favour of Larabsha who is the paternal grand father of the Husband of Safia Bi, who is now enjoying the lands. No accounts are maintained. Only Fateah is done on every Thursday evening and the tomb is lighted daily. At present Safia Bi is the Muthavalli. A few rupees are spent for the Dargah and the balance is utilized for the maintenance of the family. The above details furnished in the proforma clearly reveal that succession to the office of Muthavallis is by hereditary and the income has got to be spent for pious, religious and charitable purposes and a portion was also used for management of the family."

18. Similarly in Ebrahim Ahamed Bhaimia and others Vs. Dawood Ahmed Bhaimia and others (MANU/TN/0076/2001), wherein the wakfnama provided that 20% of the income derived from the Wakf property should be invested in the bank for the purpose of maintenance of the property and for carrying out of repairs etc., that 10% of the income should be spent for religious, pious and charitable purposes and that the balance 70% of the income should be shared by the heirs of the wakif, a learned single Judge of this Court held the suit filed on the original side of the High Court was not liable to be rejected as the same was very much a private wakf (Wakf-alal-aulad) outside the purview of the Wakf Act, 1995. A Division Bench of Calcutta High Court has expressed similar view in Anis Fatma Begum Vs. Board of Wakf (Manu/WB/0036/2003).

19. All the above judgments namely, the judgments of Honourable Apex Court, Madras High Court and Calcutta High Court came to be passed in cases wherein the suit was instituted in the civil Court. In all such cases it has been clearly held that the private wakf (Wakf-alal-aulad) is outside the purview provisions of Section 3 of the Wakf Act, 1995 except to the extent provided therein and that in such cases the bar provided under Section 85 of the Act would not be applicable. In addition to the same, in the case on hand, the income derived from the wakf properties is admittedly several lakhs of Rupees out of which a paltry sum of Rs.1,770/ alone has been directed to be spent for the religious, pious and charitable purpose. The theory of predominant purpose is to be applied in cases of Wakf-alal-aulad wherein certain directions for utilizing a part of the usufructs of the wakf property for the purposes recoginsed as pious, religious and charitable to come to the conclusion whether the jurisdiction of the civil Court stands ousted. The said theory applies with vigour in favour of the maintainability of the suit in this case. Therefore, we are not able to accept the contention of the learned counsel for the appellants that the suit itself is not maintainable by virtue of the bar provided under Section 85 of the Wakf Act 1995. We are not able to find any defect or infirmity in the order of the learned single Judge dated 29.06.2005 passed in O.A.1749 of 2005 in C.S.No.66 of 2005 and there is no scope, whatsoever, to interfere with the same. There is no merit in the appeal in O.S.A.No.244 of 2005 and the same deserves to be dismissed.

O.S.A.NO.60 of 2007:-

20. As we have already pointed out, the appellants, while filing the O.A.No.1749 of 2005 praying for the rejection of the plaint on the ground of jurisdiction, had not chosen to challenge the jurisdiction of the Court on the ground that all the wakf properties are situated outside the original territorial jurisdiction of this Court and on the other hand had reserved it to be raised in O.A.No.78 of 2005 and O.A.No.1748 of 2005. According to the contention raised by the learned counsel for the appellants, this Court derives the jurisdiction to entertain a suit in respect of a trust from Section 92 of the Civil Procedure Code which provides thus:

"Public Charities :- In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the (leave of the Court) may institute a suit, whether contentious or not, in the principal Civil Court, of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of Whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree;"

Pointing out the above said provision, the learned counsel for the appellants contended that the suit being one for removal of Muthavlli, could be filed only in the Court at Bangalore within whose jurisdiction the entire wakf properties situated and that the suit should not have been entertained by this Court. The reliance made by the learned counsel for the appellants on Section 92 CPC which provides that only the Court in whose jurisdiction the properties either in whole or part of the endowment situate shall have the jurisdiction to entertain a suit for the removal of the trustee (in this case Muthavalli) seems to be misconceived for the simple reasons that Section 92 deals with public charities alone, where as the suit Wakf, as already pointed out, is a private wakf, Wakf-alal-aulad. Section 92 will not be applicable for the removal of the trustee or appointment of new trustees in respect of a private trust. A private wakf, Wakf-alal-aulad can be equated with a private trust and hence Section 92 does not have any application to the present suit.

21. It is the further contention of the learned counsel for the appellants that since the suit relates to the management of the wakf properties situated at Bangalore it should be construed as a suit on immovable property and hence this Court does not have the jurisdiction to entertain the same. On the other hand, the learned Senior Counsel for the respondents would contend that by no stretch of imagination the suit can be construed to be a suit on immovable property and that there is no impediment for this Court to entertain the suit as the first appellant is residing within the original jurisdiction and the office of the second appellant wakf is also functioning within the city of Chennai. In support of his contention the learned Senior Counsel for the respondents relied on the judgment reported in (2001) 7 SCC 698 (ADCON ELECTRONICS PVT. LTD vs. DAULAT AND ANOTHER) wherein referring to Clause 12 of Letters Patent of Bombay High Court, the Honourable Supreme Court held that a suit for specific performance of a contract for sale of immovable property without a claim for delivery of possession would not be treated as a suit for land and therefore the suit could be entertained under Clause 12 of the Letters Patent if the other conditions thereunder were fulfilled.

22. The said provision is similar to the Clause 12 of Letters Patent of the High Court of Judicature at Madras which reads as follows:

" 12. Original jurisdiction as to suits:- And we do further ordain that the said High Court of Judiciature at Madras, in exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try and determine suits of every description if, in the case of suits for land or other immovable property, such land or property shall be situated, or in all other cases, if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court: or if the defendant at the time of the commencement of the suit shall dwell or carry on business or personally work for gain, within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause at Madras, in which the debt or damage, or value of the property sued for does not exceed hundred rupees."

23. In Bank of Madurai v. Balaramadoss and Brothers, reported in AIR (1985) Madras (1), a Division bench of this Court held that a suit for recovery of money secured by an equitable mortgage relating to properties outside the territorial jurisdiction could be instituted in the High Court if all the defendants were residing within the jurisdiction.

24. The present suit has been filed praying for the following reliefs:

"1) directing the removal of the first defendant from the office of Muthavalli of the second defendant Wakf in accordance with the provisions of Clause 19 of the Wakf deed.

ii) granting a permanent injunction restraining the first defendant from acting as Muthavalli of the second defendant

iii) appointing the plaintiffs viz. Mr.M.Shuaib Musvee, Mr.M.Najm Musvee, Mr.Md.Hussain Sait, Mr.Basheer Sait as the Muthavallis of the second defendant until a suitable person is duly appointed as Muthavalli."

25. The mere fact that interim relief has been sought for in respect of the properties will not be enough to come to the conclusion that the suit is for immovable property. Therefore, we are not in a position to accept the contention of the learned counsel for the appellants that the suit is one for immovable property and hence this Court does not have the jurisdiction to entertain the suit since such immovable properties situate outside the territorial jurisdiction of this Court. Further more, the first appellant himself was appointed as Muthavalli by virtue of an order dated 21.10.1994 passed by this Court in an earlier suit namely C.S.No.1127 of 1993. The first appellant having been appointed as Muthavalli by an order of this Court in an earlier suit, will not be entitled to contend that this Court does not have the jurisdiction to entertain the present suit for his removal. Viewed from any angle, the challenge made to the order rejecting the contention of the appellants herein that this Court does not have the jurisdiction to entertain the suit is not sustainable and that the same is liable to be rejected. There is no merit in the appeal O.S.A.No.60 of 2007 and the same is liable to be dismissed.

26. In the result O.S.A.No.244 of 2005 and O.S.A.No.60 of 2007 are dismissed. Consequently, connected miscellaneous petition is closed. No costs.

 						(K.R.P.J.,)             (P.R.S.J.,)
							    06. 03.2008
INDEX      :YES/NO
INTERNET:YES/NO
jikr



	





K.RAVIRAJAPANDIAN,J.
AND

P.R.SHIVAKUMAR,J.


jikr



Pre Delivery Judgment in
O.S.A.No.244 OF 2005 &
O.S.A.No.60 OF 2007






03.2008

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