T.P.Kunhikoyamutty vs A.P.Muhammed Kutty on 24 December, 2011

[Cites 20, Cited by 1]

Kerala High Court

T.P.Kunhikoyamutty vs A.P.Muhammed Kutty on 24 December, 2011

This civil revision petition filed under the proviso to sub-section (9) of Section 83 of the Waqf Act, 1995 arises out of the judgment of the Waqf Tribunal, Kozhikode, dated 24.12.2011 in O.S.No.11/2011. The revision petitioners, namely, Puthan Peedika Palli Paripalana Committee, a Society Registered under the Societies Registration Act, 1860 and its Secretary are the plaintiffs in the said suit filed before the Waqf Tribunal seeking a declaration that the 2nd plaintiff committee is the mutawalli of the plaint schedule properties covered by Ext.B1 waqf deed bearing No.192/1958 dated 3.2.1958 and the institutions situated therein; and a permanent prohibitory injunction restraining the 1st defendant (1st respondent herein) from interfering with the administration of the waqf.

2. The plaintiffs' case in brief is as follows; The plaint schedule properties were dedicated by one Biriyankutty Umma, daughter of Chakkiri Moideen Kutty, as per Ext.B1 waqf deed. The waqif appointed one Assamukutty Marakkar (son-in-law of her son) as the mutawalli. Velunthamannil Parambil Palli is situated in plaint schedule item No.1. Plaint schedule item No.2 is a garden land, and the income therefrom was C.R.P.No.32 of 2012 :-2-:

used for the maintenance of the mosque. Originally there was only a 'serambi' (porch) and subsequently a madrassa by name 'Manuviral Islam Madrassa' was also started. Assamutty Marakkar was unable to maintain and manage the affairs of the niskara palli and madrassa, as there was no sufficient income from the waqf properties. Therefore, he handed over mutawalliship in favour of the beneficiaries of the waqf and Sunni Muslims in the locality.

2.1. According to the plaintiffs, a meeting of the beneficiaries of the waqf and Sunni Muslims in the locality was convened on 21.2.1992 at the instance of the 1st defendant, who is the son of Assamutty Marakkar.

In the said meeting a decision was taken and a committee was elected for the administration and management of the waqf and its properties. The said committee demolished the niskara palli and constructed a mosque spending more than Rs.4,00,000/- with public participation. The said committee was in the management of mosque, utilising the income from the plaint schedule properties and also donations and subscriptions from public. Subsequently, as decided by the general body, the said committee was registered under the provisions of the Societies Registration Act.

2.2. The plaintiffs contended that, much before the death of Assamutty Marakkar, who died on 19.9.1998, he had relinquished mutawalliship in favour of Sunni Muslims in the locality and the 1st C.R.P.No.32 of 2012 :-3-:

defendant, who had actively participated in the meeting of the committee, put his signature and paid subscriptions to the 2nd plaintiff committee as a member of its general body. The madrassa, which is functioning in plaint schedule item No.1, is affiliated to Samastha Kerala Islam Matha Vidyabyasa Board, and conducting classes from Standard I to VII. An English medium School is also functioning there. The 2nd plaintiff committee is managing and administering the plaint schedule property and the institutions as a mutawalli.

2.3. The plaintiffs contended further that, as per the recitals of Ext.B1 waqf deed, no hereditary mutawalli as such has been nominated by the waqif, namely, Biriyankutty Umma. After the death of Assamutty Marakkar, one A.P. Sooppikutty has to become the mutawalli as per the stipulations in the waqf deed and there is no provision in the said deed regarding mutawalliship after the death of the eldest son of Assamutty Marakkar. Suppressing the above facts, the 1st defendant filed O.S.No.61/2003 before the Waqf Tribunal seeking a declaration that he is the mutawalli of the waqf, who is in management of the waqf properties, and for consequential injunction. The said suit was dismissed on 31.12.2005 and the matter was taken up in revision before this Court in C.R.P.No.214/2006. In the meanwhile certain other beneficiaries of the waqf approached the Kerala State Waqf Board seeking to frame a scheme C.R.P.No.32 of 2012 :-4-:

for the administration of the waqf in question. In view of pendency of the said petition before the Waqf Board, this Court, while dismissing C.R.P.No.214/2006 by Ext.A51 order dated 26.9.2006, directed the Waqf Board to dispose of the matter as expeditiously as possible and to decide the question regarding framing of a scheme, which will eventually resolve disputes regarding mutawalliship. In the said order, this Court vacated the findings of the Tribunal in O.S.No.61/2003, against the 1st defendant herein.

2.4. According to the plaintiffs, the 1st defendant is not the mutawalli of the waqf and its properties and he is not entitled to assume mutawalliship as per the recitals of Ext.B1 waqf deed. Even prior to the death of Assamutty Marakkar, the committee assumed mutawalliship with the consent and active involvement of the 1st defendant. Therefore, the 1st defendant has no right of management on the waqf and its properties.

However, he is indulging in activities detrimental to the interest of the waqf properties. Therefore, the plaintiffs filed O.S.No.11/2011 seeking appropriate declaration and consequential injunction.

3. On receipt of summons, the 1st defendant entered appearance and filed written statement contending that he is the mutawalli of the waqf and its properties, which were dedicated by Biriyankutty Umma as per Ext.B1 waqf deed. In terms of the said waqf deed, the 1st defendant's C.R.P.No.32 of 2012 :-5-:

father Assamuutty Marakkar was the mutawalli till his death, i.e., till 19.9.1998. After his death, the 1st defendant became the mutawalli. The waqf is registered with the Kerala State waqf Board with Reg.No.1810/RA and the Waqf Board has recognised him as the mutawalli. As the waqf deed contains provision for hereditary mutawalli, there cannot be any other mutawalli for the waqf and its properties.

3.1. The 1st defendant denied the allegation that Assamutty Marakkar handed over mutawalliship to Sunni Muslims of the locality as he was unable to manage and protect the waqf and its properties.

According to the 1st defendant it was the waqif, who constructed the mosque in the waqf property. Assamutty Marakkar, with the intention to reconstruct the mosque with the support of the local people convened a meeting on 21.12.1992. He never handed over mutawalliship to the local people as alleged in the plaint and the 1st defendant never participated in any such meeting. If any documents and records are created by the plaintiffs or their supporters evidencing transfer or surrender of mutawalliship, it is not binding on the 1st defendant. The mosque was reconstructed by Assamutty Marakkar with the help of local people and after reconstruction he was managing the same.

3.2. According to the 1st defendant, the 2nd plaintiff committee was registered clandestinely with the intention to take over the administration C.R.P.No.32 of 2012 :-6-:

and management of the waqf and its properties and they caused to file O.P.No.19/2003 before the Waqf Board, through some members for framing a scheme, which original petition was subsequently dismissed as withdrawn. The 1st defendant is in possession and management of the waqf properties and paying electricity bills, land tax and submitting returns and paying contributions to the Waqf Board. After the death of Assamutty Marakkar, who died on 19.9.1998, his eldest son Sooppikutty who was seriously ill, who died in the year 2000, did not assume mutawalliship. So, as desired by Sooppikutty, the 1st defendant who is the second son of Assamutty Marakkar has taken over mutawalliship in the year 1998 itself and the Waqf Board has also accepted him as the mutawalli. Therefore, according to the 1st defendant, the plaintiffs are not entitled for the declaration and injunction as sought for.

4. Before the Tribunal PWs.1 and 2 were examined and Exts.A1 to A59 were marked on the side of the plaintiffs. On the side of the defendants, DW1 was examined and Exts.B1 to B27 were marked.

5. After considering the pleadings and evidence on record, the Tribunal arrived at a conclusion that Ext.B1 waqf deed provides the rule of hereditary succession to the office of mutawalli and the contention of the 2nd plaintiff committee that they assumed the office of mutawalli as transferred and entrusted by Assamutty Marakkar, the mutawalli C.R.P.No.32 of 2012 :-7-:

appointed as per Ext.B1 waqf deed, is not legally sustainable. The Tribunal found that the 2nd plaintiff committee was formed for reconstruction of the mosque and there is no convincing and satisfactory evidence to show that the said committee is recognised as the mutawalli of the waqf by any competent authority. Accordingly, the Tribunal dismissed the suit holding that the 2nd plaintiff committee cannot be considered as the mutawalli in actual administration of the waqf and its properties against the right of the 1st defendant who is the mutawalli of the waqf as per law. Accordingly, the suit was dismissed holding that the plaintiffs are not entitled for the declaration and injunction sought for against the 1st defendant.

6. Feeling aggrieved by the judgment of the Tribunal, the revision petitioners/plaintiffs are before this Court in this civil revision petition.

7. We have heard arguments of the learned Senior Counsel for the revision petitioners/plaintiffs and also the learned counsel for the respondents/defendants.

8. This is a civil revision petition is filed under the proviso to sub- section (9) of Section 83 of the Waqf Act, 1995. Going by sub-section (9) of Section 83 of the said Act, no appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal, C.R.P.No.32 of 2012 :-8-:

constituted under Section 83 of the Act. However, going by the proviso to sub-section (9) of Section 83, the High Court may, on its own motion or on the application of the Waqf Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit.

9. A plain reading of the provisions under sub-section (9) of Section 83 of the Act make it explicitly clear that, in a civil revision petition filed under sub-section (9) of Section 83 of the Act, this Court is not exercising any appellate jurisdiction and as such, this Court is not expected to sit in appeal over the finding of facts arrived at by the Tribunal in such orders. This Court, in such matters, can exercise only revisional jurisdiction for the limited purpose of satisfying itself as to the correctness, legality or propriety of such decision made by the Tribunal.

10. Firstly, we shall consider the legality of the finding of the Tribunal that Ext.B1 waqf deed provides the rule of hereditary succession to the office of mutawalli. The Waqf Act, 1995 is enacted to provide for the better administration of aquaf and for matters connected therewith or incidental thereto. Clause (i) to Section 3 of the said Act defines C.R.P.No.32 of 2012 :-9-:

'mutawalli' to mean any person appointed, either verbally or under any deed or instrument by which a waqf has been created, or by a competent authority, to be the mutawalli of a waqf and includes any person who is a mutawalli of a waqf 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 the said Act, any person, committee or corporation for the time being managing or administering any waqf or waqf property. Going by the proviso to clause (i), no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office bearer of such committee or corporation. By the Waqf (Amendment) Act, 2013 two provisos are inserted after the proviso to clause (i), which have no relevance with the issues to be decided in this case.

11. Section 32 of the Waqf Act deals with the powers and functions of the Waqf Board established under Section 13 of the said Act. Going by sub-section (1) of Section 32, subject to any rules that may be made under the said Act, the general superintendence of all auqaf in a State shall vest in the Board established or the State; and it shall be the duty of the Board so to exercise its powers under the said Act as to ensure that the auqaf under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the C.R.P.No.32 of 2012 :-10-:

objects and for the purposes for which such auqaf were created or intended. As per clause (g) to sub-section (2) of Section 32, without prejudice to the generality of the powers under sub-section (1), the Board shall have the power to appoint and remove mutawallis in accordance with the provisions of the said Act.

12. Section 37 of the Waqf Act deals with register of auqaf. By the Waqf (Amendment) Act, 2013 Section 37 was numbered as sub-section (1) thereof. As per sub-section (1) of Section 37, the Board shall maintain a register of auqaf which shall contain in respect of each waqf copies of the waqf deeds, when available, and the particulars enumerated under clauses (a) to (f) thereof. Going by clause (c) to sub-section (1) of Section 37, such particulars shall include the rule of succession to the office of mutawalli under the waqf deed or by custom or by usage. Section 63 of the Waqf Act, which deals with the power of the Board to appoint mutawalli in certain cases provides that, when there is a vacancy in the office of the mutawalli of a waqf and there is no one to be appointed under the terms of the deed of the waqf, or where the right of any person to act as mutawalli is disputed, the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit.

13. A conjoint reading of Sections 3(i), 32(2)(g), 37(1)(c) and 63 of the Waqf Act, 1995 makes it explicitly clear that, if the waqf is created C.R.P.No.32 of 2012 :-11-:

by a deed or instrument, the rule of succession to the office of mutawalli provided in such deed or instrument should be followed while making appointment to that office. Clause (c) to sub-section (1) of Section 37, indicates that, the rule of succession to the office of mutawalli shall be governed by the provisions under the waqf deed and, in the absence of any provisions under such deed or instrument, the office of mutawalli may become hereditary by custom or usage. Further, it is evident from a plain reading of Section 63 that, the power of the Board to appoint mutawalli, when there is a vacancy in the office of the mutawalli of a waqf, can be exercised only when there is no one to be appointed to that office under the terms of the deed of the waqf or where the right of any person to act as mutawalli is disputed.

14. In Mohammed Sulaiman and another v. Andhra Pradesh Wakf Board and another [AIR 1997 AP 387] a learned Judge of the Andhra Pradesh High Court, in the context of Section 42 of the Wakf Act, 1954 (which was repealed by the Waqf Act, 1995), held that the appointment of mutawalli by the Board that is contemplated by Section 42 of the Wakf Act, 1954 is not a regular appointment of a mutawalli and there is no provision for appointing a person as mutawalli under the said Section, if there is a successor named in the wakf deed. Paragraphs 6 and 7 of the said judgment read thus;

C.R.P.No.32 of 2012 :-12-:

"6. Section 42 of the Act may be set out as follows :

"When there is a vacancy in the office of the mutawalli of a wakf and there is no one to be appointed under the terms of the deed of the wakf, or where the right of any person to act as mutawalli is disputed, the Board may appoint any person to act as mutawalli for such period and on such condition as it may think fit."

7. On a plain reading of Section 42 of the Act, it is clear that the Board has been conferred power to appoint any person to act as mutavalli in two situations as specified in this Section. The first is when there is a vacancy in the office of the mutavalli of the wakf and there is no one to be appointed under the terms of the wakf deed and secondly where the right of any person to act as muthvalli is disputed. Thus, the power of appointment can be exercised only when there is no one appointed under the terms of the deed of wakf and when the right of any person to act as mutavalli is disputed, provided, of course, there is an existing vacancy in the office of the mutawalli of the wakf. Such appointment shall be made for such period and on such condition as the Board may think fit, is indicative and suggestive of the fact that it is not a regular appointment of a mutawalli that is contemplated by Section 42 of the Wakf Act. There is no provision for appointing a person as mutawalli under Section 42 of the Wakf Act if there is a successor named in the wakf deed."

15. In Maulvi Abdul Rahman Siyai v. Sardar Maqbool Hasan and others [AIR 2009 All 62] a learned Judge of the Allahabad High Court, in the context of Sections 32(2)(g), 37(c) [prior to its numbering as sub-section (1) thereof] and 63 of the Waqf Act, 1995 held that, the power of superintendence and control of the Board over the wakf C.R.P.No.32 of 2012 :-13-:

including appointment of mutawalli to a waqf is not absolute and as such, while exercising such power of superintendence in respect of a waqf, the Board cannot act according to its sweet will, rather it has to act in conformity with the directions of the concerned waqf. But, where the waqf is not created by any waqf deed or where the waqf is created by user and there exist no such waqf deed, in view of Section 37(c) of the Act, the rule of succession to the office of mutawalli shall be governed by custom or usage and/or scheme of the administration of said waqf by virtue of the provision of Section 37(e) of the Act. Paragraphs 16 and 17 of the said judgment reads thus;

"16. Further under Section 32(2)(g) of the Act the Board is empowered to appoint and remove the mutawalli in accordance with the provisions of the Act, but this power of appointment and removal of the mutawalli is without any prejudice to the general power of superintendence of the Board over a wakf. Besides, Section 37(c) of the Act also indicates that the rule of succession to the office of mutawalli is governed by the wakf deed and if the wakf is not created by the wakf deed, the same is governed by the custom or usage. However the power to appoint mutawalli under Section 63 of the Act can be exercised by the Board only when there is no one to be appointed under the terms of wakf deed or where the right of any person to act as mutawalli is disputed, in that situations alone the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit and not in other situations.

17. It implies that while exercising the power of superintendence C.R.P.No.32 of 2012 :-14-:

including the appointment of mutawalli the Board has no absolute power, instead thereof the Board is under duty to follow directions of the wakf as contained in the wakf deed and if the wakf is not created by any wakf deed, it shall be governed by the customs and usage of the wakf, which have sanction of School of Muslim law to which it belongs. Therefore, in my opinion, the power of superintendence and control of the Board over the wakf including to the appointment of mutawalli to a wakf is not absolute, as such while exercising such power of superintendence in respect of a wakf, the Board cannot act according to its sweet will, rather it has to act in conformity with the directions of the concerned wakf but where the wakf is not created by any wakf deed or where the wakf is created by user and there exist no such wakf deed like in present case, in such situation, in view of Section 37(c) of the Act, the rule of succession to the office of mutawalli shall be governed by the customs or usage and/or scheme of the administration of said wakf by virtue of the provision of Section 37(e) of the Act. Therefore, the submission of learned counsel for the revisionist in this regard, cannot be accepted."

16. In Puthiyapura Sheik Koya Thangal and another v. P.P. Koyammakoya and others [2012 (3) KHC 192] a Division Bench of this Court explained the status, rights and duties of a mutawalli of a waqf.

One of the issues raised in that case was as to whether mutawalliship can be hereditary. The Division Bench held that, Muslim law does not recognise any right of inheritance or rule of hereditary succession to the office of muthawalli, except when founder has laid down the rule of hereditary succession or when office of muthawalli becomes hereditary by C.R.P.No.32 of 2012 :-15-:

custom. Paragraph 34 of the said judgment reads thus;

"34. It has already been seen that the definition of the word "muthawalli" itself recognises a muthawalli who holds it by virtue of a custom. Both Justice S.A. Kader and Mulla in their authoritative commentaries have also noticed that the Muslim Law recognises a muthawalli by custom and usage. In Ext.B6 notification dated 25.08.1968 issued by the Laccadive Wakf Board under Section 5(2) of the Wakf Act, 1954 and which is heavily relied on by the 4th defendant it is specifically mentioned that the Wakfs thereunder are administered by custom. Even the 4th defendant who was taking the stand that there is no custom in the island to show that the office of muthawalli is hereditary, confessed at page 26 of his (DW.1) deposition that in respect of his own mosque it is his tarwad which is the muthavalli. At pages 672 and 673 of "the Commentaries on Mohammedan Law" by V.R. Verma (9th Edition) it is observed that the office of the muthawalli may become hereditary by custom or usage. S.A. Kader in the "Law of Wakfs" (supra) at page 38 has specifically observed as follows:

Hereditary right to the office of muthawalli.-- Muslim law does not recognise any right of inheritance or rule of hereditary succession to the office of muthawalli. There are two exceptions to this principle:

(1) Where the founder has laid down the rule of hereditary succession to the office in which case the rule has to be adhered to, and (2) Where the office of muthawalli becomes hereditary by custom in which case the custom should be followed."

17. In the light of the above discussions and the law laid down in C.R.P.No.32 of 2012 :-16-:

the decisions referred to supra, we have no hesitation to hold that, though Muslim Law does not recognise any right of inheritance or rule of hereditary succession to the office of muthawalli, if the waqf is created by a deed or instrument, the rule of succession to the office of mutawalli provided in such deed or instrument should be followed while making appointment to that office. In the absence of any such provisions under a deed or instrument, the office of mutawalli may become hereditary by custom or usage. The power of appointment of mutawalli by the Board, as contemplated by Section 42 of the Wakf Act, 1954 or Section 63 of the Waqf Act, 1995 is not a regular appointment of a mutawalli, which power can be exercised only when there is no one to be appointed to that office under the terms of the deed of the waqf or where the right of any person to act as mutawalli is disputed.

18. In the instant case, as per the recitals of Ext.B1 waqf deed, the waqif, namely, Biriyakutty Umma appointed Assamutty Marakkar as the first mutawalli with a stipulation that after the death of Assamutty Marakkar his eldest son following Sunnath Jumayath shall be the mutawalli. The said fact is admitted in the plaint. However, the plaintiffs would contend that no provision has been made in Ext.B1 waqf deed regarding mutawalliship after the death of the eldest son of Assamutty Marakkar and as such, no rule of hereditary succession to the office of C.R.P.No.32 of 2012 :-17-:

mutawalli is laid down in the said waqf deed. The said contention was repelled by the Tribunal, after referring to clause (9) of Ext.B1 waqf deed. From a plain reading of clause (9) of Ext.B1 waqf deed it is obvious that the waqif appointed Assamutty Marakkar as the first mutawalli of the waqf and its properties, who shall continue as mutawalli during his life time, and thereafter his eldest son following Sunnath Jumayath shall be the mutawalli and his decedents shall administer the waqf and its properties for ever. Therefore, as rightly found by the Tribunal, Ext.B1 waqf deed provides the rule of hereditary succession to the office of mutawalli, even after the death of eldest son of Assamutty Marakkar following Sunnath Jumayath.

19. Now, we shall deal with the contention of the plaintiffs that the 2nd plaintiff committee assumed the office of mutawalli of the waqf as transferred and entrusted by Assamutty Marakkar, the mutawalli appointed as per Ext.B1 waqf deed. According to the plaintiffs, at the time of execution of Ext.B1 waqf deed, there was only a 'serambi' (porch) and subsequently a madrassa by name 'Manuviral Islam Madrassa' was also started. As there was no sufficient income from the waqf properties, Assamutty Marakkar, the mutawalli appointed as per Ext.B1 waqf deed, was unable to maintain and manage the affairs of niskara palli and madrassa. Therefore, a meeting of the beneficiaries of the waqf and Sunni C.R.P.No.32 of 2012 :-18-:

Muslims in the locality was convened on 21.2.1992 at the instance of the 1st defendant, who is the son of Assamutty Marakkar. In the said meeting, a decision was taken and a committee was elected for the administration and management of the waqf and its properties. Accordingly, Assamutty Marakkar handed over mutawalliship in favour of the beneficiaries of the waqf and Sunni Muslims in the locality.

20. A plain reading of Ext.B1 waqf deed would show that there was a mosque, well and pond in the waqf property at the time of its dedication. Further, it is the admitted case of the plaintiffs that, after the execution of Ext.B1 waqf deed Assamutty Marakkar was administering the waqf and its properties as mutawalli, in accordance with the stipulations contained in the said deed. The account books, which were marks as Exts.A7 to A9, would show that Assamutty Marakkar, in his capacity as mutawalli, contributed substantial amount for reconstruction of the mosque. The entries in Exts.A7 to A9 make it explicitly clear that, even after the alleged transfer of mutawalliship to Sunni Muslims in the locality, Assamutty Marakkar was functioning as mutawalli of the waqf and he had contributed substantial amount for reconstruction of the mosque.

21. The plaintiffs relied on Exts.A1 to A6 minutes book in order to contend that Assamutty Marakkar transferred and handed over mutawalliship of the waqf in favour of the committee formed by Sunni C.R.P.No.32 of 2012 :-19-:

Muslims in the locality, who are the beneficiaries of the said waqf, which committee was subsequently registered as a society with written bye- laws. However, Exts.A1 to A6 minutes book do not suggest anything about the alleged transfer and handing over of mutawalliship by Assamutty Marakkar in favour of the said committee. The plaintiffs have also no case that, either Assamutty Marakkar or his decedents had executed any document transferring the mutawalliship obtained as per Ext.B1 waqf deed, in favour of the committee. The mere fact that the 1st defendant had participated in the general body of the committee constituted for reconstruction of the mosque is not at all sufficient to arrive at a conclusion that Assamutty Marakkar, or after his death the 1st defendant, had transferred mutawalliship of the waqf to the committee formed by Sunni Muslims in the locality. Even if any such document was executed it has no legal effect, since clause (9) of Ext.B1 waqf deed makes it explicitly clear that, no one is authorised to alienate or encumber the properties covered by Ext.B1 waqf deed.

22. In Shaik Masthan Sahib v. Palayani Balarami Reddi [AIR 1953 Mad 958] a Division Bench of the Madras High Court held that, in Islamic Law there is nothing illegal for the founder to constitute himself as the mutawalli when he creates a waqf and also to determine the mode of succession to the office of mutawalli in the deed of C.R.P.No.32 of 2012 :-20-:

endowment executed by him. Though the mutawalli has no power to transfer the office to another person while he himself is alive and in good health, still, if such a power is expressly conferred upon him by the founder or by the court that appoints him, such a mutawalli has himself the power to appoint his successor.

23. In Abdul Latheef K.A. and others v. K.P. Abdurahiman and others [2014 (1) KLJ 329] the legal question that came up for consideration before a Division Bench of this Court was as to whether, a mutawalli of a wakf can 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. The Division Bench held that, 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 mutawalliship in favour of another. Paragraph 24 of the said decision reads thus;

"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 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 C.R.P.No.32 of 2012 :-21-:

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."

24. In Abdul Latheef's case (supra) this Court has referred to the decision in Badagara J.P.D. Committee v. Ummerkutty Haji, [2001 (3) KLT 289], wherein a Division Bench of this Court held that 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 the management of endowed property.

Thus, as per the law, there cannot be any transfer of mutawalliship.

25. In Badagara J.P.D. Committee's case (supra), jumath palli and khabarsthan belonged to Peedikayilakath tarwad, which have been dedicated in waqf with karanavan as its mutawalli. Five members of the said tarward executed Ext.A2 registered agreement dated 13.2.1973, C.R.P.No.32 of 2012 :-22-:

whereby they authorised the plaintiff committee to manage the waqf property. On the strength of the said document, the plaintiff committee filed the suit for declaration of title and and for recovery of possession. The Division Bench held that, as per Mohammedan Law there cannot be any transfer of mutawalliship. Hence, in the eye of law, Ext.A2 is invalid. Then it was contended by the plaintiff committee that, even if Ext.A2 is invalid, since the plaintiff committee was acting as mutawalli, it is entitled recover possession. Reliance was placed on the definition of the term 'mutawalli' under Section 3(f) of the Wakf Act, 1954. The Division Bench held that, the plaintiff committee, which is acting as mutawalli, is entitled to sue for recovery of possession, and accordingly allowed the appeal holding that the plaintiff committee is entitled to recover possession of the plaint schedule property from the second defendant. This Court further directed the Waqf Board to exercise its power under Section 63 of the Waqf Act and to appoint a mutawalli in the place of the plaintiff.

26. The decision of the Division Bench in Badagara J.P.D. Committee's case (supra) was under challenge before the Apex Court in Civil Appeal No.1864 of 2003. The Apex Court allowed the said Civil Appeal by its decision in Sayed Muhammed Mashur Kunhi Koya Thangal v. Badagara Jumayath Palli Dharas Committee [2004 (7) SCC 708], by setting aside the impugned judgment, except the direction C.R.P.No.32 of 2012 :-23-:

given to the Waqf Board to act under Section 63 of the Waqf Act and the suit filed by the plaintiff committee was dismissed. The Apex Court noticed that, neither there was pleadings specifically in the plaint to the effect that the plaintiff committee was actually acting as a mutawalli to come within the scope of Section 3(f) of the Wakf Act, 1954 nor acceptable and sufficient evidence was placed on record to prove it as a fact. The Apex Court held that, when the plaintiff committee came forward specifically pleading that it was entitled for declaration of title and for recovery of possession of the plaint schedule property based on Ext.A2 agreement dated 13.2.1973 it could succeed only on the basis of validity of Ext.A2 and the validity of transfer of mutawalliship in its favour. Since all the courts have concurrently found that mutawalliship could not be validly transferred in favour of the plaintiff committee under Ext.A2, the suit filed by the plaintiff committee ought to have been dismissed. The plaintiff committee could only succeed on the strength of its case and not on the weakness found in the case of the defendants. Though the judgment of this Court in Badagara J.P.D. Committee's case (supra) was set aside on other grounds, on the question of transfer of mutawalliship, the Apex Court affirmed the view of this Court and the finding of the courts below that a mutawalli has no power to transfer the office to another, unless such a power is expressly conferred upon him by the founder.

C.R.P.No.32 of 2012 :-24-:

27. In the written statement, the specific case put forward by the 1st defendant was that, after the death of Assamutty Marakkar, who died on 19.9.1998, his eldest son Sooppikutty who was seriously ill, who died in the year 2000, did not assume mutawalliship. So, as desired by Sooppikutty, the 1st defendant, who is the second son of Assamutty Marakkar, has taken over mutawalliship in the year 1998 itself and the Waqf Board has also accepted him as the mutawalli. The 1st plaintiff as PW1 has admitted that, the 2nd plaintiff committee is not submitting any returns to the Waqf Board and not paying any contributions to the Waqf Board. On the other hand, the oral evidence of the 1st defendant as DW1 along with Ext.B2 certificate issued by the Waqf Board would show that the 1st defendant is the present mutawalli of the waqf and its properties.

Ext.B56, which is an extract of the Waqf Register, would show that mutawalliship of the waqf in question is hereditary by custom.

28. The fact that the committee formed in the year 1992 by the beneficiaries of the waqf and Sunni Muslims in the locality reconstructed the mosque with donations and subscriptions from from public is not in dispute. Mohammedan Law permits anybody to do such acts of piety, which the mutawalli cannot refuse. Participation by public in the management of a mosque by subscriptions and donations is not inconsistent with the provisions under Ext.B1 waqf deed. Such public C.R.P.No.32 of 2012 :-25-:

participation for the purpose of construction or reconstruction of the mosque or for effecting any improvements, with funds raised by public subscriptions, cannot in any manner alter the the rule of hereditary succession to the office of mutawalli provided under Ext.B1 waqf deed.

29. Relying on Ext.A50 judgment in O.S.No.61/2003 of the Waqf Tribunal, Kozhikode the plaintiffs would contend that the said suit filed by the 1st defendant herein for a declaration that he is the mutawalli of the waqf in question and its properties was dismissed finding that, the 2nd plaintiff herein is in actual administration of the waqf and its properties. As discernible from Ext.A50 judgment in O.S.No.61/2003, the Waqf Tribunal dismissed the suit on account of the proceedings pending before the Waqf Board at the instance of certain other beneficiaries of the waqf for framing a scheme for its administration. In the said judgment, there was also a finding that, the said committee is in the management of the mosque. Ext.A50 judgment in O.S.No.61/2003 was under challenge before this Court in C.R.P.No.214/2006. In view of the pendency of the proceedings before the Waqf Board this Court dismissed the said C.R.P. by Ext.A51 order. In the said order, this Court observed that any findings adverse to the 1st defendant herein in Ext.A50 judgment stand deleted, in view of the fact that the Tribunal while dismissing O.S.No.61/2003 has not gone into the merits of the contentions, because of the pendency of C.R.P.No.32 of 2012 :-26-:

the matter before the Waqf Board. Since the adverse findings in Ext.A50 judgment stand deleted by Ext.A51 order of this Court in C.R.P.No.214/2006, the plaintiffs cannot press into service against the 1st defendant those adverse findings in Ext.A50 judgment. Therefore, in the impugned order, the Tribunal rightly rejected the contention of the plaintiffs that, the 2nd plaintiff committee assumed the office of mutawalli of the waqf as transferred and entrusted by Assamutty Marakkar.

30. The learned Senior Counsel for the petitioners/plaintiffs would then contend that the 1st defendant who had participated in the general body of the committee formed in the year 1992 by the beneficiaries of the waqf and Sunni Muslims in the locality is estopped from challenging the appointment of the 2nd plaintiff committee to the office of mutawalli of the waqf in question, on the ground that Ext.B1 waqf deed provides the rule of hereditary succession to the office of mutawalli, as he had acquiesced in the appointment of the said committee as mutawalli. In addition to the plea of estoppel by acquiescence raised as above, the learned Senior Counsel would also raise the plea of estoppel by conduct, by contending that, having permitted the 2nd plaintiff committee to hold the office of mutawalli of the waqf in question for quite long, Assamutty Marakkar or the 1st defendant, who is his legal representative, is estopped from denying such right to the said committee.

C.R.P.No.32 of 2012 :-27-:

31. As we have already noticed, going by the pleadings, the plaintiffs have no case that, either Assamutty Marakkar or his decedents had executed any document transferring in favour of the committee, the mutawalliship obtained by them as per Ext.B1 waqf deed. Exts.A1 to A6 minutes book do not suggest anything about the alleged transfer and handing over of mutawalliship by Assamutty Marakkar in favour of the said committee. Even if any such document was executed it has no legal effect, since clause (9) of Ext.B1 waqf deed makes it explicitly clear that, no one is authorised to alienate or encumber the properties covered by Ext.B1 waqf deed. The 1st plaintiff as PW1 has admitted that, the 2nd plaintiff committee is not submitting any returns to the Waqf Board and not paying any contributions to the Waqf Board. On the other hand, the oral evidence of the 1st defendant as DW1 along with Ext.B2 certificate issued by the Waqf Board would show that he is the present mutawalli of the waqf and its properties. Having failed to prove the alleged transfer of mutawalliship by Assamutty Marakkar, the plaintiffs cannot now raise the plea of estoppel by acquiescence or estoppel by conduct.

32. In the impugned order, after considering the pleadings and evidence on record, the Tribunal arrived at a conclusion that Ext.B1 waqf deed provides the rule of hereditary succession to the office of mutawalli and the contention of the 2nd plaintiff committee that they assumed the C.R.P.No.32 of 2012 :-28-:

office of mutawalli as transferred and entrusted by Assamutty Marakkar, the mutawalli appointed as per Ext.B1 waqf deed, is not legally sustainable. Before the Tribunal, the plaintiffs could not prove the alleged transfer of mutawalliship by Assamutty Marakkar. On the other hand, as per the records kept by the Waqf Board, the 1st defendant is the present mutawalli of the waqf and its properties. Accordingly, the Tribunal dismissed the suit holding that the 2nd plaintiff committee cannot be considered as a mutawalli in actual administration of the waqf and its properties, against the right of the 1st defendant who is the mutawalli of the waqf as per law, and as such, the plaintiffs are not entitled for the declaration and injunction sought for against the 1st defendant.

33. As we have already noticed, the revisional jurisdiction of this Court under the proviso to sub-section (9) of Section 83 of the Waqf Act, 1995 is for the limited purpose of satisfying as to the correctness, legality or propriety of the decision made by the Waqf Tribunal. In exercise of that revisional jurisdiction, it is not open for this Court to correct errors of facts or law unless they go to the root of the issue of jurisdiction. In the instant case, the Tribunal has passed a reasoned order well within the jurisdiction conferred upon it. The reasoning of the Tribunal in the said order is perfectly legal and proper, which warrants no interference in this civil revision petition.

C.R.P.No.32 of 2012 :-29-:

In the result, this civil revision petition fails and the same is accordingly dismissed. No order as to costs.

Sd/-

C.T. RAVIKUMAR JUDGE Sd/-

ANIL K. NARENDRAN JUDGE ami/ //True copy// P.A.to Judge

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