Madras High Court
Janab Mujamil Basha vs D.I.Fayaz Khan on 10 January, 2025
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
C.R.P.Nos.565 & 568 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10..01..2025
CORAM
THE HONOURABLE MR JUSTICE N. SATHISH KUMAR
C.R.P.No.565 of 2024 & C.M.P.No.2812 of 2024
and
C.R.P.No.568 of 2024
.....
C.R.P.No.565 of 2024
Janab Mujamil Basha
S/o.Abdul Khader,
No.28/66, Kidwai Street, Denkanikottai,
Krishnagiri District.
..... Petitioner
-Versus-
1.D.I.Fayaz Khan
S/o.D.P.Inayathullah Khan,
Landlord and Transport Business, No.95/1, Hosur Main
Road, Denkanikottai Town and Taluk,
Krishnagiri District.
2.The Tamil Nadu Waqf Board
Rep. by its Chairman
Office at Chennai,
No.3, Santhome High Road,
Chennai-600004
3.The Chief Executive Officer
The Tamil Nadu Waqf Board,
No.3, Santhome High Road,
Chennai-600004.
4.The Superintendent Of Waqf
West Zone, Salem-636015.
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D.P.Shoukat Khan (Died)
Salam Khan (Died)
M.Sheik Hyder (Died)
5.B.Hidayathullah,
Hereditary Mutawalli,
Denkanikottai,
Dargah of Yarub,
Having Office at
Denkanikottai, Dargah of Yarub,
YarubNagar, Fort Hosur Taluk,
Krishnagiri District.
[5th respondent impleaded as per order dated 10.01.2025
made in C.M.P.No.16463 of 2024]
..... Respondents
Prayer in C.R.P.No.565 of 2024: Petition filed under Section 115 of CPC
praying to set aside the order and decretal order dated 12.01.2024 passed in
O.S.No.33 of 2019 on the file of the Tamil Nadu Waqf Tribunal at Chennai.
C.R.P.No.565 of 2024
For Petitioner : Mr.T.V.Ramanujun,
Senior Counsel for Mr.C. Jagadish
For Respondent(s) : Mr.N.A.Nissar Hussain,
Senior Counsel for
Mr.N.A.Nassir Hussain for R1
Mr.Avinash Wathwani for RR2 to 4
Mr.T.Mohan, Senior Counsel
for Mr.A.Veerasamy for R5
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C.R.P.No.568 of 2024:
M.Sheik Hyder (died)
Janab Mujamil Basha*
S/o Abdul Khader,
No.28/66, Kidwai St, Denkanikottai,
Krishnagiri District.
(*Iimpleaded as 2nd appellant before the Waqf Tribunal
and amended as per order in IA.No. 5 of 2018 dated
06.07.2018)
..... Petitioners
-Versus-
1. Tamilnadu Waqf Board
Rep by its Chairperson,
New No. 7, Old No.4,
Indira Nagar, IX Cross Street,
Adayar, Chennai 600 020.
2. Chief Executive Officer
Tamil Nadu Waqf Board, New No. 7, Old No.4,
Indira Nagar, IX Cross St,
Adayar, Chennai 600 020
3. The Superintendent Of Waqf
Waqfs of Salem Jamiya Masjid,
Tippu Sultan Market,
Old Bus Stand, Salem.
I.Salam Khan (Died)
D.P.Shoukat Khan (Died)
4. D.I.Fayaz Khan
S/o.D.P.Inayathullah Khan,
Landlord and Transport Business,
No.95/1, Hosur Main Road,
Denkanikottai Town and Taluk,
Krishnagiri District.
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5.B.Hidayathullah,
Hereditary Muthawalli,
Denkanikottai,
Dargah of Yarub,
Having Office at
Denkanikottai, Dargah of Yarub,
YarubNagar, Fort Hosur Taluk,
Krishnagiri District.
[5th respondent impleaded as per order dated
10.01.2025 made in C.M.P.No.16460 of 2024]
..... Respondents
Prayer in C.R.P.No.568 of 2024: Petition filed under Section 115 of CPC
praying to set aside the order and decretal order dated 12.01.2024 made in
A.A.No.14 of 2019 on the file of the Tamil Nadu Waqf Tribunal at Chennai.
For Petitioner : Mr.T.V.Ramanujam,
Senior Counsel
for Mr.C. Jagadish
For Respondent(s) : Mr.Avinash Wahwani for RR 1 to 3
Mr. N.A.Nissar Ahamed,
Senior Counsel
for Mr.N.A.Nassir Hussain for R4
Mr. T.Mohn,
Senior Counsel
for Mr.A.Veerasamy for R5
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COMMON ORDER
(i) Civil Revision Petition in C.R.P.No.565 of 2024 has been filed by the
7th defendant in the suit in O.S.No.33 of 2019 challenging the judgement and
decree dated 12.01.2024 passed by the Tamil Nadu Waqf Tribunal, Chennai,
decreeing the suit granting a declaratory decree (i) declaring that the office of
Mutawalli for the suit Hazarath Yarub dargah is hereditary one and (ii)
declaring that the 7th defendant or any one of the outside persons are not
entitled to be appointed as Mutawalli for the suit Hazarath Yarub dargah at
Denkanikottai;
(ii) Civil Revision Petition in C.R.P.No.568 of 2024 has been filed by the
7th defendant challenging the order dated 12.01.2024 passed by the Tamil
Nadu Waqf Tribunal, Chennai, dismissing the appeal application in A.A.No.14
of 2019 filed under Section 64 (4) of the Waqf Act, 1995, seeking to (i) set
aside the orders in item No.112 of 200 in R.C.No.9593/B2/DPI/2000 and item
No.96 of 2000 in R.C.No.7253/B2/DPI/93, dated 29.08.2000 and (ii) to restore
the charge of Yarub Dargah, by directing the 4th respondent to deliver charge
of the same. It seems that 4th defendant – I. Salam Khan died pending
proceedings.
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2. The parties in these civil revision petitions will be referred to
according to their position in the original litigation for convenience.
(A) C.R.P.No.565 of 2024:
3.0 The facts leading to the filing of the present revision petitions in
brief are as follows:-
3.1 (i) The suit in O.S.No.33 of 2019 was filed by D.I.Fayazkhan praying
for a judgement and decree of declaration declaring that (i) the office of
mutawalli for the suit Hazarath Yarub dargah is hereditary one and (ii) the
plaintiff as one of the hereditary mutawallis of the suit Hazarath Yarub dargah
Waqf at Denkanikottai; and for mandatory injunction directing the defendants 1
and 2 to recognize and appoint the plaintiff as one of the hereditary mutawallis
of the suit Hazarath Yarub dargah; and for a declaration declaring that the 7th
defendant or any one of the outside persons are not entitled to be appointed as
mutawalli for the suit Hazarath Yarub dargah at Denkanikottai; and for
permanent injunction restraining the 7th defendant from in any way disrupting
or interfering with the management of suit Hazarath Yarub dargah Waqf.
(ii) In the plaint, it was pleaded that Hazarath Yarub dargah Hazarath
Yarub dargah at Denkanikottai is a notified waqf under the supervisory control
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of the Tamil Ndu Waqf Board. It was established by the plaintiff's paternal
grand father – Janab Peerkhan Saheb Son of Sarvarikhan and his brother Janab
Madhekhan @ Sabjan Sahib. They were the mutawallis of the suit dargah and
by custom and usage the office of the mutawalli for the said suit dargah is
hereditary.
(iii) One Yarub Hazarath was a pious man and a saint and he was
brought to Denkanikottai by the plaintiff's paternal grand father and his brother
as they were devoted to him in the year 1935 and he was living in the land
belonged to them. He died in 1951 and was entombed in the land belonged to
the plaintiff's family. The plaintiff's grandfather endowed further lands and
built a tomb over his grave and his fame spread far and wide and devotees
came there and arrangements were made for their “Fatiha” Urs, etc., by the
plaintiff's grand father and after his death by his sons namely, plaintiff's father
D.P.Inayathullahkhan and D.P.Shoukatkhan, the 4th defendant. As a matter of
fact, the said Peerkhan Saheb had filed a suit in O.S.No.1 of 1966 on the file of
the District Munsif at Hosur, on behalf of the suit dargah as its mutawalli
against some persons who were illegally occupying the land belonging to the
said waqf. While the suit was pending Peerkhan Saheb died and the present
plaintiff's father D.P.Inayathullah Khan was impleaded as his legal
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representative and mutawalli of Yarub dargah and he continued the said suit
which was decreed on 28.08.1968. The appeal in A.S.No.99 of 1968 on the file
of the District Judge, Dharmapuri, was also dismissed. Thus, the office of the
mutawalli for the said waqf is hereditary in nature. The proforma report would
support this fact.
(iv) Although the plaintiff's father had been pleading with defendants 1
and 2 to formally acknowledge him as the hereditary trustee, they had not yet
made a decision. No outsider can be appointed as mutawalli of the said waqf.
The plaintiff's father is 75 years old, and due to his old age, he was unable to
manage the Hazarath Yarub dargah properly. Because of that, the defendants 1
and 2 appear to have appointed a committee to manage the affairs of the said
waqf. No such committee could be appointed to manage the suit dargah.
Subsequently, the said committee of management appears to have been
disbanded, and the 6th defendant appears to have been appointed as mutawalli
of the suit dargah. Subsequently, the defendants 1 and 2 had removed the 6th
defendant as mutawalli of the suit dargah and appointed the 5th defendant as
mutawalli. In the meantime, the 4th defendant, who is the paternal uncle of the
plaintiff, had also applied to the defendants 1 and 2 for his appointment or
recognition as the hereditary mutawalli. The plaintiff had also applied to the
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defendants 1 and 2 for his appointment or recognition, recognising him as one
of the hereditary mutawallis.
(v) After considering the claim of the plaintiff and the defendants 4, 5,
and 6, the Tamil Nadu Waqf Board, represented by the defendants 1 and 2, in
its proceedings dated 29.08.2000 in R.C.No.9593/B2/DPI/2000 and
R.C.No.7253/B2/DPI/93 had rightly rejected the claims of the defendants 5 and
6 for being appointed as mutawallis. The defendants 1 and 2 had not
considered the claim of the plaintiff on the ground that he was a youngster; the
suit waqf is a major waqf, and therefore, he would not be able to administer it
effectively for want of experience, and that he could wait for some more time.
As against the said orders of the defendants 1 and 2, the 5th defendant filed a
writ petitions in W.P.No.12710 and 15945 of 2000 before this court and a writ
appeal in W.A.No.2344 of 2000. By judgement dated 31.01.2005, this court
held that any party who wishes to raise any dispute or matter relating to a waqf
or waqf property should first approach the Tribunal. As the plaintiff's claim to
be appointed as hereditary mutawalli of the suit dargah waqf was not
considered properly, the plaintiff filed the suit.
3.2 (i) The 2nd defendant filed his written statement and the defendants 1
and 3 adopted the same. The 2nd defendant opposed the suit. According to him,
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the suit is liable to be dismissed in limine for no notice as required under
Section 89 of the Waqf Act was served before filing the suit. The suit dargah
was originally maintained by one Madhe Khan Sahib, who is the elder brother
of the plaintiff's paternal grand father. The said Madhe Khan acted as a
mutawalli and managed the waqf property and one Peer Khan acted as
Secretary It is not true and correct to say that Madhe Khan Sahib and his
brother Peer Khan devoted to Sufi Saint in 1935. After the demise of Peer Khan
one D.P.Inayathullah Khan, the father of the plaintiff was acting de facto
mutawalli and there were a lot of complaints against him with regard to
administration and management. Hence, he was removed from the office and
subequently, a committee was constituted which was headed by one
Y.K.Sheriff, who was the adopted son of Hazarat Yarub, and the said
Y.K.Sheriff died on 15.01.1998. Thereafter, Sheik Hyder was appointed as
mutawalli with the committee of 10 persons.
(ii) Since Sheik Hyder's name did find a place in the rowdy list of
Denkanikottai Police Station, he was removed and in his place, one Salam
Khan was appointed. Sheik Hyder started instituting many writ petitions in
which this court gave directions to give him an opportunity. There were
proceedings in which the Waqf Board passed order dated 29.08.2020 in which
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Salam Khan and Sheik Hyder appeared through their respective counsel and
the plaintiff also represented by his counsel. After full-fledged enquiry, the
board passed an order. The board in its proceedings 42/1998 dated 27.10.1999
appointed Sheik Hyder as mutawalli. Since Inayathullah Khan was already
removed and since there were many complaints were made against Sheik
Hyder, he was also not selected. In the alternative, the said Salam Khan was
appointed as Mutawalli. Subsequently, as per the directions of this court in the
writ petition and writ appeal by setting aside the order of appointment of Salam
Khan, the Board considered at that stage, who has to be appointed as
mutawalli. Two more persons had given their applications namely,
D.P.Showkath Khan and the present plaintiff. Showkath Khan was the younger
brother of the said Inayathullah Khan. Hence, the Board conducted a detailed
enquiry and by clubbing both RC 112/2000 and RC 96/2000 and after having
full-fledged enquiry, passed the present order by appointing Showkath Khan as
mutawalli. As against that order, Salam Khan filed C.M.A.No.7 of 2005, Sheik
Hyder filed C.M.A.No.11 of 2005, Showkath Khan filed O.S.No.27 of 2005
and the present plaintiff filed the present suit. Against the dismissal order
passed in I.A.No.5 of 2005 in C.M.A.No.7 of 2005 dated 15.06.2005, Salam
Khan preferred a revision petition before this court and obtained an order of
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stay and is continuing as mutawalli. It is incorrect to say that the office of
mutawalli is by hereditary as per the proforma of the Board the office of the
mutawalli is permanent as he is the disciple of Peer Yarub. Hence, seeking the
relief of appointment of mutawalli by hereditaryship will not arise. No election
or selection was observed. There is no cause of action for the suit and the suit is
liable to be dismissed.
3.3. (i) The 7th defendant filed his written statement resisting the claim of
the plaintiff. According to him, no plea of hereditary mutawalliship was raised
in the earlier suit in O.S.No.1 of 1966 and A.S.No.99 of 1968 filed by the
erstwhile mutawalli – Madhe Khan. The proforma filed in the suit is a
fabricated one in order to deceive the defendants and to obtain a wrongful gain.
The proforma actually issued by the Waqf Board dated 17.12.1959 would show
that the mutawalliship is non-hereditary. Earlier, the claim of hereditary
mutawalliship was turned down by the Waqf Board in the enquiry dated
28.06.2020 as well as on 29.06.2000 by its resolution. There is no proof for the
alleged hereditary nominations and the plaintiff has to strictly prove the same.
The said D.P.Inayathullahkhan was never appointed as mutawalli for the suit
dargah as he was acting only as a de facto mutawalli unauthorizedly and he had
been removed from the office by order dated 16.06.1982. Subsequently, from
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1982 to 1998, for five successive terms, Y.K.Sherif was appointed as
mutawalli. After his demise, 6th defendant -Sheik Hyder was appointed
incognito by both Jamath General Body and Waqf Board resolution dated
27.10.1999. Subsequently, upon a false complaint by the 5th defendant –
Salam Khan to the Waqf Board, 6th defendant was removed from the post of
mutawalli and Salam Khan was nominated as mutawalli by order dated
21.01.2000. Aggrieved by such order of the Waqf Board, Sheik Hyder filed a
writ petition in W.P.No.3104 of 2000 challenging the appointment of Salam
Khan, in which, the appointment order was set aside and the matter was
remitted to the Waqf Board for fresh consideration. Without any proper
enquiry, the Waqf Board, took an erroneous decision to appoint one
D.P.Sowkath Khan as mutawalli. Aggrieved by the said order of the Waqf
Board, this time Salam Khan filed a writ petition in W.P.No.16134 of 2000
challenging the appointment of D.P.Showkath Khan which was dismissed on
merit. Aggrieved by the dismissal of his writ petition, Salam Khan filed an
appeal in W.A.No.2344 of 2000 which was disposed of with a direction to
approach the Waqf Tribunal. Challenging the same, Salam Khan filed a special
leave petition in S.L.P.(Civil) No.4156 of 2005 and the Hon'ble Supreme Court
dismissed the SLP. Later on, the M.Sheik Hyder filed an appeal in
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C.M.A.No.11 of 2005 before the Waqf Tribunal and obtained an order of
injunction restraining the defendants 4 and 5 from administrating the suit
dargah till the disposal of the appeal in C.M.A.No.11 of 2005. So also, the said
Salam Khan filed C.M.A.No.7 of 2015 before the Waqf Tribunal seeking to
confirm the appointment dated 23.03.2000 made in Item No.42/1998 in
R.C.No.7253/B2/DPI/93.
(ii) While so, again the said Salam Khan filed a clarification petition in
M.P.No.191 of 2006 in W.A.No.2344 of 2000 wherein, a Division Bench of
this Court directed the Waqf Tribunal to dispose of the suit and the said Civil
Miscellaneous Appeals. The crux of the issue in the case is thus whether the
office of the mutawalli for the Hazarath Yarub dargah is a hereditary one or
not. There is no cause of action for the suit and the plaintiff has no locus standi
to file the suit. The suit is liable to be dismissed with exemplary costs.
4. Based on the above pleadings, though certain issues were framed by
the tribunal, the same were subsequently recast on 04.01.2024 for the
determination of the suit:
(1) Whether the plaintiff is entitled to the relief of
declarations to declare that the office of mutawalli for
the suit waqf is a hereditary one and to declare him as
one of the hereditary mutawallis as prayed for?
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(2) Whether the plaintiff is entitled to the relief of
mandatory injunction as against the defendants 1 and 2
to recognise him as one of the hereditary mutawallis of
the suit waqf as prayed for?
(3) Whether the plaintiff is entitled to the relief of
declaration to declare that no outsider can be appointed
as mutawalli for the suit waqf as prayed for?
(4) Whether the plaintiff is entitled to the relief of
permanent injunction as against the 7th defendant as
prayed for?
(5) To what other relief?
5. During the trial, the plaintiff examined himself as P.W.1 and marked
Ex.A.1 to Ex.A9, but none of the defendants were examined, yet Ex.B.1 to
Ex.B11 were marked.
6. After considering both the oral and documentary evidence presented
by either party, the tribunal decreed the suit in part, as mentioned above in the
opening paragraph of this order.
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(B) C.R.P.No.568 of 2024:
7.0 The facts leading to the filing of the present revision petition in
brief are:
7.1 The waqf board does not have any power or jurisdiction to conduct a
separate enquiry in item 112/2000 in R.C.No.9593/B2/DPI/2000 for the
appointment of mutawalli by receiving fresh applications from third parties like
the respondents 4 and 5 and pass common order. The 1st respondent failed to
see that it has power only to remove a mutawalli from the management and
administration of dargah on specified grounds contained in Section 64(1)(a) to
(k). The waqf board failed to appreciate that the deceased mutawalli – Sheik
Hyder, was associated with the waqf as member of the managing committee
and also as Secretary of such committee from 1982 to 1999 on being so elected
by the general body in the public election. The waqf board should have
afforded an opportunity to the deceased appellant and held a proper enquiry.
The 1st respondent waqf board finding solely that certificate is bogus based on
the letter received by it from the Superintendent of Police, Dharmapuri, and
abandoning further enquiry is erroneous and illegal. The waqf board should not
have considered the claim of the respondents 4 to 6 for mutawalliship. The
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waqf board failed to see that the proforma report of Yarub dargah is materially
altered in as much as in column 10, where the hereditary as per custom is
incorporated, which is not in the original proforma or in the certified copies
granted to the deceased 1st appellant. The 1st respondent waqf board failed to
note that in O.S.No.367 of 1982 on the file of the District Munsif, Hosur, the 1st
respondent waqf board had categorically stated that the office of mutawalli of
waqf is not hereditary as per custom. The 1st respondent waqf board erred in
believing that the 5th respondent's forefathers founded the waqf and functioned
as mutawalli, contrary to the facts that they had alienated the waqf property to
one Madar Khan Sahib, Son of Budan Sahib who gifted the same to the saint of
the dargah. The 1st respondent waqf board having held that the 4th respondent
inefficient, incapable of collecting rents, unable to handle the controversies and
not an effective person, should have confirmed the order of appointment of the
deceased 1st appellant. Hence, the appeal application.
7.2 Upon considering the above pleading and based on the available
materials, the tribunal dismissed the appeal application. The relevant paragraph
of the order of the waqf tribunal at Chennai reads as under:-
The 2nd appellant has not put forth any acceptable
reason to set aside the impugned order dated 29.08.2000
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passed by the 1st respondent in item No.112/2000 in
R.C.No.9593/B2/DPI/2000 and item No.96/2000 in
R.C.No.96of 2000 in R.C.No.7253/B2/DPI/93 (which
has been marked as Ex.B.11 in the connected suit in
O.S.NO.33 of 2019) and as such the 2nd appellant
cannot seek for the second relief of this appeal
application as against the deceased 4th respondent since
the said relief has abated. The 2nd appellant who belongs
to the non-hereditary lne and who was never chosen to
be appointed as mutawalli by the respondents 1 to 3 has
not put forth any acceptable ground to hold that he can
maintain this appeal application after the demise of the
deceased 1st appellant who at least was appointed and
later removed as seen from exhibits B9 and B10. In
view of the above discussions, this Tribunal hereby
decides that this appeal application deserves only to be
dismissed.
Hence,the 2nd appellant Mujammil Bash has come up with C.R.P.No.568 of
2024.
7.3. It may be relevant to extract hereunder the relevant portion of the
order passed by the Waqf Board at Chennai in Item No.112/2000 -
Rc.No.9593/B/DPI/2000 and Item No.96/2000 – Rc.No.7253/B2/DPI/93 dated
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29.08.2000:-
“In the result, this board hereby unanimously
resolves to appoint Janab D.P.Showkath Khan as the
hereditary Muthawalli of Hazarath Yarub Dargah,
Denkanikottai and this order comes into effect from this
date. The chief Executive Officer is hereby authorized
to give appropriate direction to the Superintendent of
Waks, Salem to get the charges of this Wakf handed
over to the newly appointed Mutawalli Janab
D.P.Showkath Khan. The Board also instructs the Chief
Executive Officer of the Tamil Nadu Waqf Board to
intimate this order to the Collector of Dharmapuri and
the Superintendent of Police, Dharmapuri, with a
request to give due protection to the newly appointed
Muthawalli in the future management of this Wakf. By
this order the earlier proceedings of the Board are
hereby superceded.”
8. Heard Mr.Mr.T.V.Ramanujun, learned senior counsel for
Mr.C.Jagadish, counsel on record for the 7th defendant; Mr.N.A.Nissar
Ahamed, Senior Counsel for Mr.N.A.Nassir Hussain, counsel on record for the
plaintiff; Mr.Avinash Wadhwani, learned counsel for the defendants 1 to
3/Waqf Board; and Mr.T.Mohan, learned senior counsel for
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Mr.B.Hidayathullah, the 5th respondent / newly impleaded respondent.
9. Mr.Mr.T.V.Ramanujun, learned senior counsel appearing for the 7th
defendant would strenuously submit that
(i) the Waqf Tribunal, having found that there was interpolation in the
register and certified copy of the letter obtained and filed, still relying upon
those documents, held that the office of the mutawalli is a hereditary one.
According to the learned senior counsel, the office of mutawalli is not
hereditary, and Mohammedan law does not recognise any right of inheritance
to the office of mutawalli; and
(ii) Mr.Mr.T.V.Ramanujun would further submit that hereditary by
custom has not been pleaded and proved in the instant case. No waqf deed is
available. Therefore, the decree and judgement passed by the waqf tribunal
relying upon the documents produced on the side of the plaintiff per se are not
legally sustainable.
10.1 Per contra, Mr.N.A.Nissar Ahamed, learned senior counsel for the
plaintiff and Mr.T.Mohan, learned senior counsel for the 5th respondent,
supporting the order of the tribunal, would contend that Ex.A.11-Proforma
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would clearly show the rule of succession to the office of mutawalli is
hereditary as per custom. They would heavily rely on the 1958 notification that
was given in this regard.
10.2 That apart, according to the learned counsel, earlier the suit in
O.S.No.1 of 1966 on the file of the District Munsif, Hosur, was filed by the
original mutawalli-S.Peer Khan Sahib, against Hyder Sheriff Sahib and others
for the relief of declaration of plaintiff's title to the suit schedule mentioned
properties and for permanent injunction or in the alternative for delivery of
possession of the suit schedule mentioned properties and on his death, his son,
D.P.Inayathullah Khan got impleaded in the above said suit. In the suit, it was
held that waqf was founded by forefathers of the plaintiff. The documents filed
on the side of the plaintiff before the waqf tribunal in the instant case would
clinchingly establish the fact that the mutawalli was appointed only as per
custom. Furthermore, the waqf board had not filed any revision challenging the
order passed by the waqf tribunal. The learned counsel would, therefore,
contend that the waqf tribunal, after a careful analysis of the oral and
documentary evidence brought on record by either party, rightly came to a
conclusion that the office of mutawalli is hereditary as per custom and granted
a declaration that does not require any interference at the hands of this court.
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11.1 Mr.Avinash Wadhwani, learned counsel for the waqf board, would
contend that custom has not been pleaded and proved before the waqf tribunal
in the manner known to law. The waqf board has filed written statement
disputing the claim of the plaintiff. It cannot be said that the finding rendered
by the waqf tribunal is well-balanced just because the learned counsel who
appeared before the tribunal on behalf of the waqf board argued contrarily.
11.2 Mr.Avinash Wadhwani in support of his above submission placed
much reliance upon the judgment of the Hon’ble Supreme Court in the case of
Aliyathammuda Beethathebiyyappura Pookoya and another v. Pattakal
Cheriyakoya and others [(2019) 16 SCC 1].
12. I have considered the rival submissions carefully.
13. In the light of the above, the points that arise for consideration in
these revision petitions are
(1) Whether the office of the mutawalli to
Hazarath Yarub Dargah is hereditary one as per the
custom?
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(2) Whether the custom has been pleaded and
proved in the manner known to law?
Point Nos.1 and 2:
14. The waqf in question namely, Hazarath Yarub dargah situated at
Denkanikottai is a notified and gazetted waqf under the supervisory control of
the Tamil Nadu Waqf Board. Ex.A.1 is the Gazette Notification issued in this
regard under Section 5 of the Muslim Wakfs Act, 1954 (Central Act XXIX of
1954).
15. The case of the plaintiff is that the waqf was established by his
paternal grand father – Janab Peerkhan Saheb son of Sarvarikhan and his
brother-Janab Madhekhan @ Sabjan Sahib. They were the mutawallis of the
said dargah and the rule of succession of mutawalli is hereditary as per custom
and usage. One Yarub Hazarath, a pious man and a saint was brought to
Denkanikottai by the plaintiff's paternal grandfather and his brother in 1935 as
they were devoted to him. The said Yarub Hazarath was living in the land
belonging to the plaintiff's paternal grandfather and his brother. The said saint
died in 1951 and he was entombed in the land belonging to the plaintiff's
family. The grandfather of the plaintiff endowed further lands and built a tomb
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over the grave of Yarub Hazarath and his fame spread far and wide and
devotees have started thronging the dargah and arrangements were made for
their “Fathia” Urs, etc.,
16. The fact that said saint - Yarub Hazarath came to Denkanikottai and
settled in the subject property is not disputed. According to the plaintiff, the
office of mutawalli was hereditary as per custom and mutawallis were being
appointed from 1951 to 1988 only as per custom. Much reliance has been
placed by the plaintiff on the proforma report to emphasis that the office of
mutawalli was hereditary as per custom.
17. This court has gone through the entire documentary and oral
evidence, more particularly, the proforma register. This court has, in fact,
summoned the original register to verify the genuineness of the contention of
the plaintiff.
18. On a careful perusal of the Proforma Report, this court found that
the phrase “hereditary as per custom” appears to have been interpolated in the
original register using a different ink. Furthermore, several other corrections
were also found to have been made using different ink. All these were clearly
noted by the waqf tribunal at page No.14 of its order.
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19. In the instant cases, admittedly, there was no waqf deed to
demonstrate the intention of the founders, who created the waqf, to hold that
the office of mutawalli should be hereditary. In the present circumstances,
when there was no waqf deed to demonstrate the founders' desire or intention
for the position of mutawalli, succession to be inherited, the initial burden lies
on the plaintiff to establish the custom by strict proof. Much has been argued
on Ex.A.2, Decree dated 28.08.1968 passed in O.S.No.1 of 1966 on the file of
the District Munsif, Hosur. It was the plaintiff’s grandfather-S.Peerkhan Sahib,
who filed a suit against the Hyder Sherif Sahib and others for declaration of
title to the suit schedule mentioned properties and for permanent injunction or
in the alternative for delivery of possession of the suit schedule mentioned
properties and on his death, his son, D.P.Inayathullah Khan, who is the father
of the plaintiff in the instant case got impleaded in the above said suit
(O.S.No.1 of 1966).
20. It was pleaded in the above suit that Madhekhan @ Sabjan Sahib, a
forefather of the plaintiff herein became the owner of the suit properties both
by purchase and by reason of occupation, that suit was decreed in favour of the
plaintiff’s father. A report filed in the earlier suit was marked under Ex.A.9 =
Ex.B.11 dated 29.08.2000 in the present suit. Ex.A9 = Ex.B.11 is a proforma
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report prepared on the basis of the information furnished by the Inspector of
Waqf. Ex.A.1 is a Gazette in respect of Publication of General Notification
published by the Government of Tamil Nadu regarding the list of wakfs in the
State. The original documents filed in the earlier suit were not placed before
the waqf tribunal and only certified copies of some of those documents have
been filed before the waqf tribunal. Whereas certified copy of the document
marked under Ex.B.11 Revised Annexure shows the rule of succession to the
office of mutawalli is to be hereditary as per custom.
21. It is relevant to note that in the original documents, the phrase
“hereditary as per custom” is found to have been interpolated with a different
ink. Thereafter, a proceeding which was marked under Ex.A9 came to be
passed, appointing one Shoukat Khan as mutawalli based on the proforma
report. The said proceeding would make it clear that one Sheik Hyder was
already appointed as mutawalli, though he is a non-hereditary mutawalli, yet he
was removed from the office of mutawalli because of some criminal cases
pending against him. Ex.B2, Revised Annexure of the Waqf Board dated
01.01.1956 would also show that the phrase “hereditary as per custom” was
interpolated subsequently. Under Ex.B2 proceedings of the Assistant
Commissioner of Wakfs, Salem with a Revised Proforma dated 01.01.1956,
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along with Annexure dated 10.09.1955 wherein the fact that, the land in
S.No.167/1A – 2A – 1A1, which is a village site poramboke measuring 18.67
acres out of which the dargah and its surroundings is about 60 cents, was
recorded. It was further recorded under Ex.B.2 that the house in which Yarub
was living also stood in village site poramboke for which “B” Memo was
booked every year, however, “no charge” was levied. It was also suggested
under Ex.B.2 to classify the land as dargah poramboke.
22. In Ex.B.9 proceedings vide Ref. Rc.7253/B2/93/DPI dated
27.10.1998, it was held by the Superintendent of Waqf Board, Chennai, that
“the claim of Janab D.P.Inayathullah to be appointed him as mutawalli do not
see any reason at all because this is not a waqf where the mutawalli has been
appointed as per hereditary”. As a result, the waqf board turned down
Inayathullah Khan's request to appoint him as mutawalli in line with custom
and usage.
23. It was also recorded that it is not the waqf where appointment to
office of mutawalli is by hereditary succession. The proforma report states that
mutawalli should be a permanent man who is a disciple of Yarub Hazarath.
This proceedings was passed after considering the various proceedings wherein
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it was specifically recorded that mutawalli should be a permanent man who
must be a disciple of Yarub Hazarath. This proceedings came to be passed in
1998.
24. Ex.B.3, Proforma, a record originally maintained at the Salem Office
would clearly show that mutawalli is a permanent man and a disciple of Yarub
Hazarath and no election or selection was observed for the same. In the said
proforma, at column 10, the phrase “hereditary as per custom” has not been
found. Whereas under Ex.B.2 proceedings viz., revised annexure the phrase
“hereditary as per custom” is found to have been interpolated using a different
ink. Therefore, this court is of the firm view that such interpolation must have
been made much after the proforma report marked under Ex.B.3 Proforma
Report and Ex.B.9, Resolution of the Waqf Board, dated 27.10.1999,
whereunder, a fact was clearly recorded that “mutawalli is a permanent man
who is a disciple of Hazarath Yarub, and no election or selection has been
observed”.
25. The waqf board took out a stand in its written statement that the
office of mutawalli is not hereditary as per custom. Further, it was also the
specific stand taken by the waqf board that appointment of Inayathullah Khan
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as mutawalli was not hereditary. Having taken such a stand in the written
statement, during the arguments, the counsel who represented the waqf board
had taken ‘U’ turn and supported the plaintiff's case. The waqf tribunal has
categorically noted that there were corrections in the permanent record and that
there was no explanation from the waqf board.
26. Further having produced Ex.B.3 Proforma report where the phrase
“hereditary as per custom” is missing, and passed a resolution under Ex.B.9
wherein it was categorically recorded by the waqf board that the waqf is not the
one where the position of mutawalli is appointed as per hereditary and relied
upon the proforma report, it was specifically recorded that the mutawalli must
be a permanent man who is a disciple of Hazarath Yarub. Having held so, the
waqf board rejected the claim of hereditary ship of one Inayathuallah Khan for
appointment as mutawalli.
27. These facts could only probabilise the case that the certified copies
which were obtained in the subsequent years only after the corrections had
been made in the original register, probably after the proceedings marked as
Ex.B.9 and Ex.B.3 original proforma produced from the Salem Office.
28. Admittedly, the proceedings of the Assistant Commissioner, Waqf,
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Salem, is dated 01.01.1956. This is the earliest document. This document
would clearly indicate that the phrase “hereditary as per custom” is absent, and
interpolation seems to have been made in the original register, which was
produced before the Waqf Tribunal and even though the tribunal found that
there was an interpolation, yet it has decreed the suit only on the ground that
from the inception, the office of mutawalli was being appointed from the
hereditary line, including the adopted son of the saint in 1998.
29. Ex.B.10, Resolution of the Waqf Board dated 22.01.2000, would
also make it clear that only a true disciple of Hazarath Yarub was appointed as
mutawalli. In fact, the claim of one Janab Inayathullah Khan for appointment to
the position of mutawalli was rejected. Whereas under Ex.B.11, Order of the
Tamil Nadu Waqf Board, dated 29.08.2000, one Shoukat Khan was appointed
as hereditary mutawalli of Hazarath Yarub Dargah.
30. It is to be pointed out here that till the original records were
maintained at the Salem office, as per the original records, the phrase
“hereditary as per custom” neither found in the proforma nor in the other
records and only when at the subsequent point in time, when the proceedings
had started to be passed at Chennai, it was stated that appointment to the office
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of mutawalli is hereditary as per custom and usage. The above facts would
clearly show that the corrections were made in the original records only to
support the claim of some section of persons. This has been clearly fortified by
further fact that having taken a plea denying the case of the plaintiff, the
counsel who appeared for the waqf board, during the course of argument before
the waqf tribunal, has taken a different stand.
31. All these facts would cumulatively probabilize one particular fact:
that the phrase “hereditary as per custom” could have been certainly
interpolated at the later point in time to lay a claim in the office of mutawalli.
32. The plaintiff asserting the right to office as mutawalli in accordance
with tradition and inheritance must have proven the custom and practice by
rigorous proof of evidence, not just statement in the form of pleadings, as long
as there was no waqf deed.
33. As already stated supra, the entire burden to prove the custom and
usage was cast on the plaintiff to prove the custom and usage. Even worse, in
the instant case, there was no evidence to support the waqf's creators' desire or
intention for the position of mutawalli, succession to follow a hereditary line,
nor was there any pleading of custom and usage raised in the plaint and proved
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in the manner known to law.
34. The Hon’ble Supreme Court in the case of Aliyathammuda
Beethathebiyyappura Pookoya and another v. Pattakal Cheriyakoya and
others [(2019) 16 SCC 1] at para 40, 41, 42 and 43 has held as follows:-
“40. We may now consider what the principles
governing the establishment of a custom under Muslim
law are. It is a settled position of law that a custom in
order to be legal and binding must be certain, reasonable
and acted upon in practice for a long period with such
invariability and continuity that it has become the
established governing rule in a community by common
consent. It is equally settled that it is incumbent upon the
party relying on the custom to plead and prove it.
41. In this regard, we may fruitfully refer to the
following observations from Fyzee's Outlines of
Muhammedan Law (5th Edn., 2008, Prof. Tahir Mahmood,
ed., p. 49) (for short “Fyzee”):
“First, the burden lies heavily upon the
person who asserts to plead the custom
relied upon and prove clearly that he is
governed by custom and not by the
general law. Secondly, as to the proof of
custom, there is in law no presumption in
favour of custom and the custom must be
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ancient, certain and not opposed to public
policy.”
42. The leading case with respect to the
requirements of proving a custom is the decision of the
Privy Council in Mir Abdul Hussein Khan v. Bibi Sona
Dero [Mir Abdul Hussein Khan v. Bibi Sona Dero, 1917
SCC OnLine PC 68 : (1917-18) 45 IA 10 : AIR 1917 PC
181] . Relying upon its previous decision in Ramalakshmi
Ammal v. Sivanantha Perumal Sethurayar [Ramalakshmi
Ammal v. Sivanantha Perumal Sethurayar, 1872 SCC
OnLine PC 15 : (1871-72) 14 Moo IA 570] , the Council
observed as follows: (Mir Abdul Hussein Khan [Mir
Abdul Hussein Khan v. Bibi Sona Dero, 1917 SCC
OnLine PC 68 : (1917-18) 45 IA 10 : AIR 1917 PC 181] ,
SCC OnLine PC)
“… ‘It is of the essence of special usages,
modifying the ordinary law of succession
that they should be ancient and
invariable: and it is further essential that
they should be established to be so by
clear and unambiguous evidence. It is
only by means of such evidence that the
courts can be assured of their existence,
and that they possess the conditions of
antiquity and certainty on which alone
their legal title to recognition depends.’
(Ramalakshmi Ammal case [Ramalakshmi
Ammal v. Sivanantha Perumal
Sethurayar, 1872 SCC OnLine PC 15 :
(1871-72) 14 Moo IA 570] , SCC OnLine
PC)”
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43. Thus, we may conclude that while no person can
claim the office of mutawalli merely by virtue of being an
heir of the waqif or the original mutawalli, if they can
show through a long-established usage or custom that the
founder intended that the office should devolve through
hereditary succession, such usage or custom should be
followed. Additionally, the practice would have to comply
with the requirements which are generally applicable
while proving a custom i.e. it must be specifically pleaded,
and should be ancient, certain, invariable, not opposed to
public policy, and must be proved through clear and
unambiguous evidence.
44. Whether the aforementioned requirements have
been satisfied in the present case or not is to be
considered. As far as the requirement of specific pleadings
is concerned, we find that the appellants' argument that the
respondents have not specifically pleaded their customary
right is patently incorrect, insofar as the respondents in
Para 2 of their plaint in OS No. 1 of 1998 have specifically
pleaded that the office of the mutawalli is vested in the
Pattakal family “by virtue of immemorial custom and
usage”.
35. In the case of Phatmabi v. Haji Abdulla Musa Sait, (1914) 26 MLJ
114, at para 11, a single Judge of Madras High Court has held as follows:-
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“11. In the present case there is no allegation,
still less any proof, that the ' waqf ' is of a nature
which would in the ordinary course be expected to be
administered by a succession of hereditary
Mutawallis, chosen from one family. Hence there is
no reason to consider the evidence in this case from
an attitude more favourable to the plaintiff than is
implied in the decision to which I have referred and it
is not alleged or proved that the plaintiff has been
nominated to be Mutawalli by the last office-bearer.
Under these circumstances the facts on which the
plaintiff relies, namely, that there have been from
some time previous to 1874 three successive
Mutawallis from the family to which the plaintiff
belongs seem to me to be totally insufficient for
supporting the allegation that in accordance with the
terms of the original dedication, the Mutawalliship of
the waqf ought to devolve hereditarily. I do not
allude more fully to the various facts in this case on
which the respondent relies as tending to throw doubt
on the allegation that the three successive Mutawallis
in question rightfully succeeded to that office for it
seems that for the purposes of the present appeal it
may be conceded that they were rightful holders of
the office, and yet there is nothing to show that they
proposed to succeed to the office, not through some
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appointment or nomination, but as of right. Even if it
were assumed that they purported to succeed by right
of inheritance there is nothing from which a rule of
succession can be deduced sufficiently precise or
definite for presuming that such a rule was contained
in the waqfnama or the terms of the dedication.
Unless all these facts are alleged and proved I am
unable to see how the plaintiff can succeed in her
claim, as it has been framed. These reasons for
holding that the decision appealed from ought not to
be disturbed seem to me to apply with greater force
when it is borne in mind that we are sitting in second
appeal and that it is not easy to class some of the
questions to which I have alluded as questions purely
of law.”
36. In the light of the above discussions, more particularly, the fact that
the waqf tribunal has based its finding on proforma report that is altered in
respect of material particulars to suit the convenience of the plaintiff, the
judgement of the waqf tribunal granting a declaratory decree declaring that the
office of mutawalli for the suit Hazarath Yarub Dargah is a hereditary one and
declaring that the 7th defendant or any one of the outside persons is not entitled
to be appointed as mutawalli cannot be sustained in the eye of law, and the
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same must necessarily be set aside. C.R.P.No.565 of 2024 is allowed
accordingly.
37. In view thereof, since the office of mutawalli is not hereditary, the
impleaded respondent, cannot, as a matter of right, seek to reappoint him. It is
for the waqf board to select and appoint the mutawalli (s) from the disciple of
Hazarath Yarub as per rules by calling for application afresh. C.R.P. No. 568 of
2024 is to be disposed of accordingly.
In the result, (i) C.R.P.No.565 of 2024: This Revision is allowed and
judgement and decree dated 12.01.2024 made in O.S.No.33 of 2019 by the
Tamil Nadu Waqf Tribunal, Chennai, is set aside and the suit in O.S.No.33 of
2019 stands dismissed.
(ii) C.R.P.No.568 of 2024: This civil revision petition is disposed of .
(iii) The wakf board shall call for applications from the eligible persons
and appoint mutawalli or mutawallis as per the rules. The said exercise shall be
completed within a period of two months from the date of receipt of a copy of
this order.
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(iv) Considering the facts and circumstances of the cases, the parties are
directed to bear their respective costs in both the revision petitions.
Consequently, connected CMP is closed.
Index : yes / no 10..01..2025
Neutral Citation : yes / no
kmk
To
1.The Chairman/District Judge, Tamil Nadu Waqf Tribunal, Chennai.
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N.SATHISH KUMAR.J.,
kmk
and
10..01..2025
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