Kerala High Court
Thiruthummal Muhammed @ Bava vs C.H.Abdurahiman on 19 July, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 19TH DAY OF JULY 2024 / 28TH ASHADHA, 1946
CRP NO. 564 OF 2011
AGAINST THE JUDGMENT & DECREE DATED 28.02.2004 IN AS NO.11 OF 2001
OF WAKF TRIBUNAL, KOZHIKODE
REVISION PETITIONER/LEGAL REPRESENTATIVE/RESPONDENT:
THIRUTHUMMAL MUHAMMED @ BAVA
S/O.ALIKKUTTY, THIRUTHUMMAL HOUSE, MUTHA VALLY,
CHERNOOR-PANAKKAT PALLI WAKF, P.O.VELIMUKKU,
TIRURANGADI TALUK, MALAPPURAM DISTRICT, (BROTHER &
SUCCESSOR IN INTEREST OF THE DECEASED APPELLANT BEFORE
THE WAKF TRIBUNAL AND SENIOR MOST MEMBER OF THE FAMILY
AND PRESENT MUTHAVALLY ENTITLED TO SUE).
BY ADV
SRI.M.KRISHNAKUMAR
RESPONDENTS/RESPONDENTS:
1 THIRUTHUMMAL ABDULLA
S/O.ALAVI, RESIDING AT CHERNOOR,
PANAKKAD, P.O.VELIMUKKU, MUNIYOOR VILLAGE,
TIRURANGADI TALUK,MALAPPURAM DISTRICT-676505.
2 AYIRAKKATTU KATTIL SAIDALI
S/O.KUNHAMMED, RESIDING AT DO. , PIN-676505.
*3 KUTHIRADATH ABDURAHIMAN
S/O.MODEEN KUTTY, RESIDING AT DO. DO., PIN-676505.
(*DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 18.6.24
IN I.A. 1/2022)
4 KALOOPADIKKAL SALIH
S/O.SAINUDHEEN HAJI, RESIDING AT DO. DO., PIN-676505.
5 T.P.KAMMUKOYA
S/O.MUHAMMED, PRESIDENT, CHERNOOR, PANAKKAD
PALLIPARIPALANA COMMITTEE, RESIDING AT DO. DO., PIN-
676505.
CRP NOS. 558 & 564 OF 2011 -2-
2024:KER:58672
6 THE KERALA STATE WAKF BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,
ERNAKULAM-682017.
BY ADVS.
LIGEY ANTONY
SRI.R.RAMADAS
SRI.A.A.ABUL HASSAN, SC, WAKF BOARD
SRI.K.SHIBILI NAHA, SC, KERALA STATE WAKF BOARD
JAMSHEED HAFIZ, SC, WAKF BOARD
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 19.07.2024, ALONG WITH CRP.558/2011, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
CRP NOS. 558 & 564 OF 2011 -3-
2024:KER:58672
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 19TH DAY OF JULY 2024 / 28TH ASHADHA, 1946
CRP NO. 558 OF 2011
AGAINST THE JUDGMENT & DECREE DATED 28.02.2004 PASSED IN
AS NO.12 OF 2001 OF WAKF TRIBUNAL, KOZHIKODE
REVISION PETITIONER/LEGAL REPRESENTATIVE/NOT PARTY:
THIRUTHUMMAL MUHAMMED @ BAVA
THIRUTHUMMAL HOUSE, MUTHA VALLY, CHERNOOR-
PANAKKAT PALLI WAKF, P.O.VELIKUMMU,
THIRURANGADI TALUK, MALAPPURAM DISTRICT,
(BROTHER & SUCCESSOR IN INTEREST OF THE
DECEASED APPELLANT BEFORE THE WAKF TRIBUNAL AND
SENIOR MOST MEMBER OF THE FAMILY AND PRESENT
MUTHAVALLY ENTITLED TO SUE).
BY ADV
SRI.M.KRISHNAKUMAR
RESPONDENTS/RESPONDENTS:
1 C.H.ABDURAHIMAN
EX-SECRETARY, CHERNOOR PANAKKAD PALLI
PARIPALANA COMMITTEE, CHERNOOR POST, VELIMUKKU,
MUNNIYOOR VILLAGE, TITURANGADI TALUK,
MALAPPURAM DISTRICT, PIN-676505.
2 T.P.KAMMUKOYA SO.MUHAMMED
PRESIDENT, CHERNOOR PANAKKAD PALLI PARIPALANA
COMMITTEE, RESIDING AT DO. DO., PIN-676505.
CRP NOS. 558 & 564 OF 2011 -4-
2024:KER:58672
3 THE KERALA STATE WAKF BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE
OFFICER,ERNAKULAM-682017.
BY ADVS.
SRI.R.RAMADAS
LIGEY ANTONY
JAMSHEED HAFIZ, SC, WAKF BOARD
SRI.A.A.ABUL HASSAN, SC, WAKF BOARD
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 19.07.2024, ALONG WITH CRP.564/2011, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
CRP NOS. 558 & 564 OF 2011 -5-
2024:KER:58672
ORDER
[CRP Nos.564/2011, 558/2011] AMIT RAWAL, J.
1. This order shall dispose of two CRPs i.e, 564/2011 and 558 of 2011 preferred against the common judgment of Wakf Tribunal dated 24.02.2004 affirming the findings of the Wakf Board by entertaining two(2) Enquiry Petitions i.e., EP Nos.1036 of 1994 and 2 of 1996, filed by respondents.
2. Succinctly the facts in brief for adjudication of the aforementioned are as follows:
Respondents who claimed to be the members of the Jama-ath had filed the aforementioned complaint against the committee, respondent No.5 as well as the mutawalli of the Mosque wherein at the relevant point of time prayers were made in the Namaskarappalli. It was alleged that over a period of time locals dedicated three more properties by way of three different Wakf deeds appointing the committee as the mutawalli. However, the mutawalli of the mosque started assuming the role of CRP NOS. 558 & 564 OF 2011 -6- 2024:KER:58672 other wakf deeds resulting into disgruntlement and cause of action for holding the enquiry.
3. Petitioner appeared and contested the matter by relying upon the contents of the wakf deed to say that the oral wakf deed on account of the mosque was by way of custom and appointment of mutawalli by succession. In this regard had relied upon the registration certificate of the Wakf.
4. Wakf Board on analysis of the evidence on record allowed the complaint and directed to frame a suitable scheme in respect of the management of the mosque as well as the other three properties. The aforementioned orders were assailed before the tribunal. The Tribunal vide common order as noticed above, has also upheld the order of the Wakf board.
5. Mr.M.Krishnakumar, learned counsel appearing on behalf of the petitioner submitted that both the authorities i.e., the board and the tribunal did not appreciate the contents of the documents placed on CRP NOS. 558 & 564 OF 2011 -7- 2024:KER:58672 record particularly the oral wakf recorded in the registration certificate whereby the mutawalli of the mosque was appointed by custom and through succession. The present mutawalli has no role in encroaching upon the management and working of the other three properties dedicated by three different wakf deeds, management of which has been assigned to the committee respondent No.5. In fact, the authorities below were completely swayed away in reading the contents of the wakf deed conjunctively though it should have been read independently. The prime reason for rejecting the case of the petitioner was that no document was placed on record. As per Section 71 of the Wakf Act, wakf board is in possession of all the relevant records. Prior to the aforementioned complaints, there were more complaints in 1974 and on enquiry, it was found that the appointment of mutawalli with regard to the mosque was by way of custom. Annexures B is the application and Annexure C is the extract of Register of Wakfs CRP NOS. 558 & 564 OF 2011 -8- 2024:KER:58672 maintained by the Wakf Board whereas Annexures D and E are enquiry reports. Though there is a passing reference in favour of the petitioner, but the ultimate findings are against the petitioner, thus, there is illegality and perversity.
6. On the other hand, Mr.R.Ramdas, learned counsel appearing on behalf of the respondent complainant submitted that the local people had dedicated property to the mosque by way of wakf deeds and committee was assigned the role to manage/ administer the aforementioned properties, in essence, the committee was the mutawalli. But the petitioner under the garb of mutawalliship and common registration attempted to encroach upon the affairs of the committee in respect of the three properties, gave a cause of action to file the complaints. In the absence of the records, the authorities below had no occasion but to reject the petitions, this is precisely what has been done and prays for dismissal of the revision petitions. CRP NOS. 558 & 564 OF 2011 -9-
2024:KER:58672
7. Mr.Jamsheed learned counsel appearing on behalf of the Wakf Board did not deny the enquiry report dated 12.06.1995 Annexure E and previous report Annexure D, the complaint dated 05.11.1974 Annexure B and the Registration dated 05.12.1974 Annexure C, and submitted that the other three wakf deeds have also been brought under the ambit of the registration number, but for all intends and purposes the contents of the wakf deed leaves no manner of doubt that the mutawalli would be none else but the committee/President of the Committee. Section 36 of the Wakf Act deals only with the registration of the wakf property and not of the Jama-ath. Petitioner has miserably failed to place on record any material in support of the allegations, thus failed to discharge the onus.
8. Mr.Krishnakumar, learned counsel appearing on behalf of the petitioner, in rebuttal, drew the attention of this court to paragraph Nos.5 to 10 of CRP NOS. 558 & 564 OF 2011 -10- 2024:KER:58672 the affidavit of respondent No.5 - the President of the Managing Committee extracted below and sought support with regard to the additional evidence ibid:
"5. Annexures C & D (sic Annexures D & E), additional documents produced along with the civil revision petition, are two enquiry reports by the Wakf inspector who conducted the enquiry into the affairs of the administration of the Wakf. In both these reports it can be seen that the committee of which I am the President was formed solely for the purpose of merely assisting the muthwalli in office who holds office under customary succession. In fact I had even appraised the Wakf inspector who conducted the enquiry that the succession to the office of muthawalli is by customary succession and that late Sri.Thiruthummal Moosa ought to be confirmed as the rightful muthawalli in office.
6. As on today I am only assisting the revision petitioner, who is the rightful muthawalli in office, whenever a need arises, to carry out the administration of the Wakf.
7. Before the revision petitioner took over as the rightful muthawalli, involvement of the committee of which I am the President into the affairs of administration of the Wakf had increased because the elder brother of the revision petitioner who was the muthawalli in office, late Sri.Thiruthimmal Moosa was chronically ill.CRP NOS. 558 & 564 OF 2011 -11-
2024:KER:58672
8. This Wakf is one created/dedicated by the Thiruthummal family who had large extent of properties. The right to the office of muthawalli is by customary succession only. This fact is recorded in Annexure A and annexure B documents which are produced along with the revision petition.
9. Even after judgment was rendered by he Wakf tribunal and even after filing of the civil revision petitions, all throughout it was the customary muthawalli who was managing the affairs of the Wakf.
10. Even today the receipts issued from the Kerala State Wakf Board for receipt of the annual contribution is being issued in the name of the revsion petitioner Sri.Thiruthummal Muhammed @ Bava."
9. We have heard learned counsel for the parties and appraised the paper books.
10. Before adverting to the rival contentions, we specifically raised a query with regard to the working of the committee as to whether it is by rotation or by specific tenure. We were informed that once the President is appointed, he continues till his life time. We are of the view that such practice should not be followed CRP NOS. 558 & 564 OF 2011 -12- 2024:KER:58672 as there should be a regular election amongst the members of the Jama-ath for management and administration of the wakf considering the fact that there are three wakfs, one oral and three by written documents, in order to prevent any misuse or intrusion. Another reason for not holding the election is that there are no bye-laws. Though in such circumstances, the board is justified in passing the scheme, but in order to prevent further litigation and any feud between the parties, we deem it appropriate to direct the present committee to frame a bye-law and submit to the board for approval within a period of three(3) months, consisting of all the provisions with regard to election, tenure and management of the properties dedicated to the wakf.
11. As far as the role of the petitioner as mutawalli is concerned, as per Annexure C Registration Certificate dated 05.12.1974, the wakf is oral by the predecessor-in-interest and the succession is by way of CRP NOS. 558 & 564 OF 2011 -13- 2024:KER:58672 customs. Thus, for all intends and purposes the present petitioner will be considered to be mutawalli of only mosque, the property dedicated by way of oral gift and not of other properties which had been dedicated subsequently vide three different wakf deeds, the management of which is under the control of the President of the Committee. We, thus, declare that the petitioner is the mutawalli of only the mosque whereby the property was dedicated orally and restrain any members of the Jama-ath for interfering into his working viz-a viz the aforementioned mosque and also injunct the petitioner not to interfere, intrude or meddle with the affairs of the committee of respective authorities viz-a-viz the other three properties dedicated by three different deeds on account of the reason that the committee can also be, as per the definition of Section 3(i), can be a mutawalli of the other committees, either verbally or under any deed or instrument. It is made clear that the bye-laws will be only with regard to the three properties CRP NOS. 558 & 564 OF 2011 -14- 2024:KER:58672 dedicated by three different deeds presently.
Orders of the wakf board and tribunal are upheld, Civil Revision Petitions are disposed of in terms of the aforementioned directions.
Sd/-
AMIT RAWAL JUDGE Sd/-
EASWARAN S. JUDGE vv CRP NOS. 558 & 564 OF 2011 -15- 2024:KER:58672 APPENDIX OF CRP 564/2011 PETITIONER ANNEXURES ANNEXURE A TRUE COPY OF THE NOTICE DATED 12-09- 2011 FROM THE WAKF BOARD ANNEXURE B TRUE COPY OF THE APPLICATION FOR REGISTRATION OF THE WAKF ANNEXURE C TRUE EXTRACT FROM THE REGISTER OF WAKF'S MAINTAINED BY THE KERALA WAKF BOARD.
ANNEXURE D TRUE COPY OF THE ENQUIRY REPORT OF THE SENIOR WAKF INSPECTOR DATED 17-1-1995 ANNEXURE E TRUE COPY OF THE ENQUIRY REPORT OF THE SENIOR WAKF INSPECTOR DATED 12-6-1995 RESPONDENT ANNEXURES ANNEXURE R5A TRUE COPY OF THE AFFIDAVIT EXECUTED BY THE 5TH RESPONDENT DATED 09.06.2024 CRP NOS. 558 & 564 OF 2011 -16- 2024:KER:58672 APPENDIX OF CRP 558/2011 PETITIONER ANNEXURES ANNEXURE-A TRUE COPY OF THE NOTICE DATED 12-09- 2011 FROM THE WAKF BOARD