Madras High Court
Syed Mathani vs N.M.Shahul Hameed on 24 February, 2021
C.R.P. (MD) No.748 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 24.02.2021
CORAM
THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN
C.R.P(MD)No.748 of 2008
1.Syed Mathani
2.H.Syed Mirza
3.T.Navvaz
4.T.Shahul Hameed ... Revision Petitioners/Petitioners
Vs.
1.N.M.Shahul Hameed
2.Tamilnadu Wakf Board,
represented by its
Chief Executive Officer,
NO.3, Santhome High Road,
Chennai – 600 004. ... Respondents/Respondents
PRAYER:- Civil Revision Petition is filed under Article 227 of the
Constitution of India against the fair and decreetal order dated 06.11.2000,
made in WAKF O.P.No. 9 of 2003 on the file of the Wakf Tribunal (Sub
Court) Tiruchirappalli.
For Petitioners : Mrs.J.Maria Roseline
For R2 : Mr.T.S.Mohamed Mohideen
ORDER
This revision is directed against the order of the Wakf Tribunal in
Wakf O.P.No.09 of 2003. The said Wakf O.P was filed by the petitioners
herein seeking the following reliefs:
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a) that the succession to the office of muthawalli in
respect of the west chinthamani mosque, Trichy is
hereditary
b) that the appointment of the muthawallis shall be
from the descendants of Rustum Bi
c) that the petitioners are qualified to be appointed as
committee members to conduct the affairs of the mosque.
d) that the deed executed by the wakf Rustum Bi on
03.08.1881 is a Wakf deed dealing with the line of
succession for the office of Muthawalliship as also
concerning the administration of the mosque and the wakf
e) and, as such, the appointment of the petitioners as
committee members is legal and valid
f) for costs of petition
2. According to the petitioners, they are descendants of the Wakif
Rustum Bi, who has created a Wakf Deed dated 03.06.1881 dedicating
certain properties to Chinthamani Mosque constructed by her. According to
the petitioners, the said deed also prescribes the rule of succession to the
office of mutavalli as hereditary. The proforma prepared by the Wakf Board
also states that the rule of succession is hereditary. Contending that the first
respondent herein, who is no more, was an encroacher and he had created
the situation, where the legal heirs of the original Wakif Rustum Bi were
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prevented from being appointed as mutavallis to the Wakf, the petitioners
came up with the above prayers.
3. This application was resisted by the first respondent contending
that the petitioners are acting against the interest of the Wakf and in view of
the Shariat law, the office of muthawalli cannot devolve by hereditary
succession. The Wakf Boad, which was cited as the second respondent, filed
a counter stating that the petition filed without issuing notice under Section
89 of the Wakf Act, 1995, is not maintainable. The Wakf Board also stated
that the petitioners have to establish the claim that the Wakf Deed dated
03.06.1881 prescribes hereditary succession.
4. Pending Wakf O.P.No.09 of 2003, an Interlocutory Application
was also filed by the first petitioner challenging the order of the Wakf Board
approving the lease of the property in favour of one M.A.Sathakathulla
instead of Selvaraj, as recommended by him. The Wakf O.P and the
application in I.A.No.54 of 2006 were taken up together for disposal.
5. The first petitioner examined himself as P.W.1 and 4 other
witnesses were examined on their side. Exs.A1 to A9 were marked. On the
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side of the respondents, the first respondent N.M.Shahul Hameed was
examined as R.W.1 and Exs.B1 to B.8 were marked. In I.A.No. 54 of 2006,
Exs.B1 and B2 were marked.
6. The Wakf Tribunal, upon a consideration of the evidence on
record, concluded that though the Wakf Deed provides for hereditary
succession to the office of mutavalli, the petitioners have not proved that
such hereditary succession was in fact adopted in appointment of mutavalli
to the Wakf in question. The Wakf Tribunal also concluded that the
petitioners have acted against the interest of the Wakf inasmuch as they
have claimed title to some of the Wakf properties. The Tribunal also found
that in view of the Shariat Law Amendment Act, 1949 and the judgment of
this Court reported in 1992(2) LW 685 (Syed Ansamddin Vs. the Tamil
Nadu Wakf Board by its Secretary and 6 others), there cannot be
hereditary succession to the office of mutavalli. On the aforesaid
conclusion, the Wakf Tribunal dismissed the Wakf Original Petition as well
as the application in I.A.No.54 of 2006.
7. In so far as I.A.No.54 of 2006 is concerned, the Wakf Tribunal
found that the action of the Wakf Board in approving the lease in favour of
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C.R.P. (MD) No.748 of 2008
M.A.Sathakathulla is valid since the period of appointment of the
petitioners had expired and it was open to the Executive Officer to sanction
the lease in favour of M.A.Sathakathulla.
8.I have heard Mrs.J.Maria Roselin, learned counsel appearing for the
petitioners and Mr. T.S.Mohamed Mohideen, learned counsel appearing for
the Wakf Board/the second respondent. The first respondent having died
this Court had by order dated 25.11.2015 held that it is not necessary for the
petitioners to implead the legal heirs of the first respondent.
9. Mrs.J.Maria Roseline, learned counsel appearing for the petitioners
would vehemently contend that the Wakf Tribunal was not right in
dismissing the Original Petition, which seeks the prayer for declaration
regarding the nature of succession to the office of mutavalli to the Wakf in
question. According to her, the Wakf Tribunal should have decided the
nature of succession based on the Wakf deed and the proforma. Further, she
would contend that whether the petitioners are qualified to be mutavallis or
not should not have been gone into in this proceeding and the Wakf
Tribunal was not justified in rejecting the entire claim on the ground that the
petitioners are not qualified to be appointed as mutavallis. She would also
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fault the Wakf Tribunal for having come to the conclusion that the
petitioners have asserted independent title over the property.
10. Mr.Mohamed Mohideen, learned counsel for the second
respondent/Wakf Board would fairly submit that the Wakf Board will have
to go by the Wakf Deed and the proforma in deciding as to who is qualified
and what is the mode of succession to the office of mutavalli. The learned
counsel would further point out that the petitioners have claimed
independent title for themselves for certain properties, which are shown as
wakf properties in the proforma. Therefore, they are disqualified and their
prayer has not been granted.
11. I have considered the rival submissions.
12. The question as to whether succession to the office of mutavalli
could be hereditary or not is no longer dis integra. Ofcourse, in Syed
Ansamddin Vs. the Tamil Nadu Wakf Board by the Secretary and 6
others (in 1992(2) LW 685), the Hon'ble Mr. Justice ABDUL HADI, has
held that there cannot be hereditary succession to the office of mutavalli as
it is unknown to the Shariat Law in view of the Muslim Personal Law
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(Shariat) of the Tamilnadu Amendment Act, 18/1949. The said judgment is
prior to the introduction of the Wakf Act, 1995. The provisions of Wakf
Act, 1995, particularly, Sections 3, 37 and 63 recognize hereditary
succession, if the Wakf deed provides for such hereditary succession. Law
is now fairly well settled that the Wakf Board will have to go by the
directions in the Wakf deed or the customs and practice of the Wakf in
appointment of mutavallis.
13. The wakf deed in the case on hand provides as follows:
“nkw;go jh;kj;ij ehd; cs;s tiuapy; ehDk; vdf;F
gpwF vd;Dila thhpRfSk; elj;jp tuntz;oaJ. nkw;go
epyk; nkw;go k$Pj;Jf;nf brhe;jk; jtpu ehdhtJ vd;
thhpR Kjyhdth;fshtJ bthj;jp nghf;fpak; fpuak;
tpf;fpuak; bra;af; TlhJ. nkw;go bthj;jp nghf;fpak;
fpuak; tpf;fpuak; bra;jhy; bry;yj;jf;fjpy;iy”
The proforma of the Wakf reads as follows:
The Rule of succession to the The rule of succession in the
office of the Muthavalli and post of Muthavalli is a
whether it is under Wakf-deed hereditary one. It is a custom
or by custom or by usage. adopted in these parts.
Pointing out the above recitals in the document as well as the contents of the
proforma, the learned counsel for the petitioners would contend that the
Wakf Tribunal was not justified in rejecting the claim of the petitioners for a
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declaration that the office of mutavalli in the case on hand devolves
hereditarily.
14. The learned counsel for the petitioners relied upon the judgment
of the Hon'ble Supreme Court in Aliyathammuda Beethathebiyyappura
Pookoya and another dated 01.08.2019, wherein the Hon'ble Supreme
Court has also recognized hereditary succession to the office of mutavalli.
15. Faulting the Wakf Tribunal for placing reliance on the judgment
reported in Syed Ansamddin Vs. the Tamil Nadu Wakf Board by the
Secretary and 6 others (1992(2) LW 685), the learned counsel would rely
upon the judgment of mine in C.R.P(MD)No.1533 of 2007 dated
07.01.2020, wherein I had considered the impact of the introduction of the
Wakf Act, 1995 and the consequent binding nature of the judgment in Syed
Ansamddin Vs. the Tamil Nadu Wakf Board by the Secretary and 6
others (1992(2) LW 685). After noticing the change in law introduced by
the Wakf Act, 1995, I had concluded that the judgment in 1992(2) LW 685
is no longer good law in view of the introduction of the Wakf Act, 1995.
The Muslim Personal Law(Shariat) Tamilnadu Amendment Act, 1949 is a
State law enacted by the provincial Government. After introduction of the
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Constitution of India, Article 254 would apply wherever there is a conflict
between the State law and the Central law. In terms of Article 254(1) of the
Constitution of India, wherever there is conflict between the Central law
and the State law, the Central law alone would prevail. Only when the State
law is reserved for assent of the President and if such assent is obtained, the
State law would have priority in that particular State. The question as to
what will be the position, if the existing State law conflicts with the
subsequently enacted Central law was considered by the Hon'ble Supreme
Court in 1995 (4) SCC 718 (PT Rishikesh and another Vs. Salma
Begum), wherein the Hon'ble Supreme Court had pointed out that in such
cases, unless the State law is re-enacted by the State legislature and reserved
for assent of the President, the Central law would prevail.
16. In view of the above position of law declared, I do not think the
Tribunal was right in concluding that there cannot be a hereditary
succession to the office of mutavalli. The interpretation placed by the
Tribunal on the language of Wakf Deed is also not very convincing. The
Tribunal had expected the Wakif to write the term 'mutavalli' in the Wakf
deed. The relevant portion of the Wakf deed has been extracted above,
which shows that the Wakif has reserved the right of administration of the
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wakf properties in herself for her life time. It also prescribes the line of
succession and mutavalli is a person appointed to administer the Wakf
properties. Therefore, the Wakf Tribunal was not justified in concluding
that because of the Wakif has not used the term 'mutavalli' in the Wakf
deed, it cannot be taken that she had not reserved the office of mutavalli to
herself for life time and prescribed the mode of succession also.
17. In view of the above, the order of the Wakf Tribunal requires
interference and the same is set aside. The Wakf Original Petition is allowed
granting prayers (a), (b) and (d). In respect of prayers (c) and (e), Wakf
Original Petition will stand dismissed. It is for the Wakf Board to decide as
to whether the petitioners or any other descendants of the original wakif
Rustum Bi are qualified to be appointed as mutavallis.
18. The Wakf Board shall not be influenced by any of the
observations made by the Tribunal in the order impugned in this revision or
by me in this order in deciding the question as to whether the petitioners are
entitled to be appointed as mutavallis.
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19. In fine, this Civil Revision Petition is allowed. No costs.
24.02.2021
Index : Yes/No
Internet: Yes/No
CM
To:
1.The Wakf Tribunal (Sub Court),
Tiruchirappalli.
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court, Madurai.
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C.R.P. (MD) No.748 of 2008
R.SUBRAMANIAN. J.,
CM
C.R.P(MD)No.748 of 2008
24.02.2021
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