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6. It is further averred in the plaint that the descendants of Saint Ubaidulla are the present members of Pattakal tharawad, that after the constitution of the Lakshadweep Wakf Board, the mosque was registered with the Lakshadweep Wakf Board in 1967, that on 1.11.1968 there was a gazette publication by the Lakshadweep Wakf Board notifying the registration of the wakf with the Lakshadweep Wakf Board inter alia showing the name of the muthawalli as members of the Pattakal family. Not only that, all along, the members of Pattakal family alone have been functioning as muthawalli and traditional Khazi of the mosque and no one else had held these offices till today. Both the office of the muthawalli of the wakf as well as the traditional Khazi have been exercised and performed only by one or other member of the Pattakal family, right through and all along during the past several centuries and that the immediate last muthawalli of the wakf was Pattakal Pookoya Thangal who died on 20.8.1996. After his death, the 1st plaintiff became the muthawalli and has been functioning as such. A member of the Pattakal family who is chosen from among the members of their family for assumption of office as muthawalli of the wakf has been submitting the requisite returns under the provisions of the Wakf Act to the Lakshadweep Wakf Board and remitting contributions from time to time as and when demands were made on the basis of the returns submitted. In short, it is seen that both the office of muthawalli and that of traditional Khazi of the plaint schedule was undisputedly being held by the chosen member of the Pattakal family. When a feeble attempt was made to constitute an advisory committee to aid and advise the de facto muthawalli in the performance of his duties, the then de facto muthawalli, namely, late Koyammakoya Thangal is purported to have entered into a compromise decree in OS 10/1974. The said compromise is null, void and non-est for several reasons. The said suit was not a representative suit much less was the said suit filed impleading the muthawalli in his capacity as the accredited and duly authorised muthawalli. The valuable rights of the members of Pattakal tharawad vis-a-vis the office of muthawalli-cum-Khazi of the ancient Jum-ath mosque were incapable of abandonment, release or surrender by any one member of the Pattakal tharawad and the entitlement of privileges appertaining to the office of the muthawalli and traditional Khazi of the mosque which vests in the Pattakal family remained unaffected and continued to vest in the family without in any way being lost on account of any act, thing or deed done or purported to be done by any single member. On the other hand, the office of the muthawalli-cum-Khazi of the mosque was continued to be held, discharged and performed by late Koyammakoya Thangal prior to the filing of OS 10/1974, during the pendency of the said suit and subsequent to the disposal of that suit. The committee referred to in the proceedings of OS 10/1974 was a still -born child, it did not come into existence and had not exercised any of the powers or duties of muthawalli. A cloud on the rights and entitlement of the family on the above office is being raised by the defendants and so the plaintiffs are constrained to file the suit.

25. We have gone through the passages in Tyabji's Muslim Law, 4th Edition, B.R.Verma on Islamic Law, 6th Edition and Mulla's Principles of Mohammedan Law, 19th Edition. From the authoritative passages noticed on Principles of Mohammedan Law, we note that it is a settled principle that Mohammedan Law does not generally recognise hereditary right of Muthawalliship unless there is a custom and usage to that effect. It is an accepted principle of Mohammedan Law that such a custom is not opposed to such law, but the same is contemplated by it. The muthawalliship of Andrott Juma-ath mosque was being succeeded by the members of Pattakal family. It is consistent with the position in Mohammedan Law and therefore has to be recognised as a customary right. The definition of "muthawalli" in the Wakf Act also recognises the holding of the post of muthawalliship as a customary right. The definition of "muthawalli" means and includes 'any person who is a muthawalli of a wakf by virtue of any custom to perform the duties of a muthawalli.' Therefore, we hold that Pattakal family is the traditional and customary muthawalli of the plaint schedule mosque.

27. Another important aspect to be noted is the relevance of Exts.A3 and A4 documents which also clinches the issue. Ext.A3 is a gazette notification issued by the Lakshadweep Wakf Board under sec.5(2) of the Wakf Act, 1954. Ext.A4 is the certified copy of an extract issued by the Kerala Wakf Board, Kavaratti which relates to the registration of the Wakf in the year 1967-68. Item No.158 in Ext.A3 is the entries relating to the disputed mosque. In the column 'name of muthawalli', it is shown as 'members of Pattakal under the supervision of Amins and Karanavans'. Admittedly, enquiries were made in the year 1967 about the wakf in Andrott island. DW.1 also testified that he had participated in such enquiry by the Wakf Board and after the enquiry, the list was published. No one had ever made any complaint about the entry in the list. In other entries relating to other mosques in the column 'name of muthawalli', serial No.147 relates to Mohiyudheen mosque where it is shown that it is managed by the Amins and Karanavans. In relation to some other mosques, the entry in the column is 'Kacheri Mooppans'. Ext.A5 is the copy of the receipt issued to Pattakkal Koyammakoya Thangal for the registration of the disputed mosque. The entry in the register shows that the name of Pattakal Koyammakoya was entered as the muthawalli of the mosque. The entries in Ext.A3 notification and Ext.A4 registration will also disprove the case set up by the defence that a committee was in existence and was functioning. If that be the position, the said fact would have been reflected in the registers of the Wakf Board.

34. In the light of the findings recorded above, the prayer in OS 1/2001 filed for a declaration that there is no muthawalli for the mosque at present and for settling a scheme for the management of the mosque cannot stand. The contention of the counsel for the plaintiffs in OS 1/1998 that O.S. No.1/2001 is not maintainable before the Tribunal for framing a scheme for the management of the mosque as the power to frame the scheme is vested with the Wakf Board as per the provisions of sec.69 of the Wakf Act, 1995 does not arise for consideration again since the maintainability question has been decided in this case in the interlocutory stage by the court below and upheld by this Court holding that the Tribunal has jurisdiction to entertain the suit for framing a scheme. Since the issue has been decided by this court and has become final between the parties and thereafter the impugned judgment was passed pursuant to the direction, a fresh consideration as to the maintainability of the suit for framing a scheme is not required in this case. Moreover, in view of the fact that we have reversed the findings of the court below and entered positive findings in OS 1/1998, the question of jurisdiction of the Tribunal for framing a scheme in OS 1/2001 need not be decided afresh. The question whether the Wakf Tribunal has the jurisdiction to frame a scheme under the Wakf Act was considered by the Supreme Court in the decision reported in M.P. Wakf Board v. Subhan Shah(2006) 10 S.C.C. 696. In paragraphs 27 to 29 of the above judgment, the Supreme Court held as follows: