Munavvurul Islam Madrassa & Hanafi Mahallu Committee v. K.M. Kabeer and Others (including Kerala State Wakf Board)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 07TH DAY OF DECEMBER 2020/16TH AGRAHAYANA, 1942** ## **CRP(WAKF).No.324 OF 2015** **AGAINST THE JUDGMENT IN WOS 30/2012 DATED 06-01-2015 OF WAKF TRIBUNAL, ERNAKULAM** ## **REVISION PETITIONERS/DEFENDANTS 1 & 3:** - **1 MUNAVVIRUL ISLAM MADRASSA & HANAFI MAHALLU COMMITTEE** - **KALLEPPULLY P.O., PALAKKAD, PIN 678005,REPRESENTED BY ITS VICE-PRESIDENT, K.ABDUL SALAM, S/O.KAREEM RAWTHER, ABIDA MANZIL, THEKKUMURI, KALLEPPULLY P.O.,PALAKKAD.** - **2 SRI.UMMER MASTER AGED 57 YEARS** **DOOR NO.11/314, PNWO 96, POOJA NAGAR, PUTHUR P.O., PALAKKAD, PIN 678001, SECRETARY, MUNAVVURUL ISLAM MADRASSA & MAHALLU COMMITTEE, KALLEPPULLY P.O., PUTHUR ROAD, PALAKKAD.** **BY ADVS. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SHRI.P.U.VINOD KUMAR SMT.ARYA RAGHUNATH SMT.VAISAKHI V. SRI.MUHAMMED MUSTHAQUE SHRI.UNAIS K.P.** ## **RESPONDENTS/PLAINTIFFS, DEFENDANTS 4 & 2:** **1 K.M. KABEER, AGED 42 YEARS S/O. P.MOIDU KARUMANGADU HOUSE, KOTTEKKAD, PALAKKAD TALUK, KALLEPPULLY P.O.,** |**CRP(WAKF).No.324 OF 2015**|**CRP(WAKF).No.324 OF 2015**|-2-| |---|---|---| ||**PIN 678732.**|| |**2**|**MOHAMMED BASHEER**|| ||**AGED 47 YEARS**|| ||**S/O.ABDUL RAHIMAN,**|| ||**PAZHAYAPEEDIKAKKAL HOUSE,**|| ||**KALLEPPULLY P.O.,**|| ||**PALAKKAD, PIN 678005.**|| |**3**|**NAJUMMA**|| ||**AGED 64 YEARS**|| ||**W/O.LATE ABDUL AZEEZ, 17/790,**|| ||**KUZHIYAKKADU HOUSE,P.O.**|| ||**KALLEPPULLY,**|| ||**PALAKKAD, PIN 678005.**|| |**4**|**C.ISMAIL**|| ||**AGED 60 YEARS**|| ||**S/O.CHINNAPPA RAWTHER,**|| ||**CHUNATH HOUSE,**|| ||**MILMA ROAD,**|| ||**KALLEPPULLY P.O.,**|| ||**PALAKKAD, PIN 678005.**|| |**5**|**ABDUL AZEEZ**|| ||**AGED 47 YEARS**|| ||**S/O.K.K.HAMSA,**|| ||**DARUSALAM, MILMA ROAD,**|| ||**KALLEPPULLY P.O.,**|| ||**PALAKKAD, PIN 678005.**|| |**6**|**A.SHEIK DAVOOD**|| ||**AGED 42 YEARS**|| ||**S/O.ABDUL AZEEZ, 17/790,**|| ||**KUZHIYAKKADU HOUSE,**|| ||**P.O. KALLEPPULLY,**|| ||**PALAKKAD, PIN 678005.**|| |**7**|**HAJARA BEEVI**|| ||**AGED 70 YEARS**|| ||**W/O.KAJA HUSSAIN,**|| ||**VALLOLICKAL KALAM,**|| ||**P.O.KALLEPPULLY,**|| ||**PALAKKAD, PIN 678005.**|| **CRP(WAKF).No.324 OF 2015** -3- **8 THE KERALA STATE WAKF BOARD REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP ROAD, ERNAKULAM, KOCHI-682017. 9 AKBAR ALI AGED 47 YEARS S/O.LATE MOHAMMED ALIYAR, AFNA TAILORING BUILDING, OPP.NGO COLONY GATE, PUTHUR ROAD, KALLEPPULLY P.O.,PALAKKAD, PIN 678005, PRESIDENT, MUNAVVIRUL ISLAM MADRASSA & MAHALLU COMMITTEE, KALLEPPULLY P.O.,PUTHUR ROAD, PALAKKAD.** **R1-2 BY ADV. SRI.V.A.AJMAL R1 BY ADV. SRI.T.H.ABDUL AZEEZ R1 BY ADV. SMT.A.C.ARFANA R1 BY ADV. SRI.R.MAJEED KUTTY R1 BY SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD R8 BY ADV. ADV.SHIBILI NAHA(B/O) R8 BY ADV. SHRI.T.K.SAIDALIKUTTY, SC, WAQF BOARD** **THIS CRP (WAKF ACT) HAVING BEEN FINALLY HEARD ON 07-12-2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRP(WAKF).No.324 OF 2015** **4** **K.VINOD CHANDRAN & T.R. RAVI,JJ. -----------------------------------------------CRP (WAKF)No.324 of 2015** **--------------------------------------------------** ## **Dated this the 7[th] day of December, 2020 ORDER** ## **T.R.Ravi, J.** Heard Sri Babu Karukappadath on behalf of the revision petitioners, Sri K.P.Majeed on behalf of respondents 1 to 7 and Sri T.K.Saidalikutty on behalf of the 8[th] respondent Wakf Board. 2. Defendants 1 and 3 in WOS No.30 of 2012 on the file of the Wakf Tribunal, Ernakulam are the revision petitioners. The respondents 1 to 7 filed the suit contending that they were sympathisers of the Kerala Nadvathul Mujahideen (KNM for short) and for that reason, the revision petitioners are harassing them and the other members of KNM. It is contended that the revision petitioners have imposed a ban on petitioners and other members of KNM and excommunicated them from all functions relating to the Munavirul Islam Madrassa. It is also stated in the plaint that the petitioners had proclaimed that they will not allow burial of the dead bodies of the relatives of the plaintiffs and others, in the burial ground attached to the Jama-ath. **CRP(WAKF).No.324 OF 2015** **5** 3. The petitioners filed written statement contending that the Jama-ath was established long ago and that the members follow the Hanafi Mad-hab, according to which the burial is led by the Imam of the masjid. It was contended that there cannot be a different mode of prayer at the time of burial of dead bodies than what is being followed under the Hanafi tenet. It is further contended that the plaintiffs were followers of the Salafi sect. It is stated in the written statement that the petitioners have not obstructed the burial of the dead bodies of the relatives of the plaintiffs, and that they have no such intentions. The prayer in the suit was for a declaration that the plaintiffs are entitled to bury the dead bodies of the members of their family in the burial ground of the 1[st] defendant Jama-ath and for a prohibitory injunction. 4. The Tribunal relied on the decision in **Abdul Khader v. Mohammed Ali** reported in **[1989 (2) K.L.T 146]** and held that the plaintiffs have a right to bury the dead bodies of their relatives in the Khabaristan of the Kalleppully Muslim Jamaat. The Tribunal observed that the petitioners are follwers of Shafi Madhab and the plaintiffs are followers of the Salafi sect and that there is a longstanding dispute between the two sects, which **CRP(WAKF).No.324 OF 2015** **6** cannot come in the way when the burial of a Muslim's dead body has to take place. It is also declared that the burial has to take place in a public graveyard irrespective of the sub-sect of the Jama-ath. It can be seen throughout the judgement that the Tribunal has stated that the revision petitioners are following the Shafi Mad-hab which is not factually correct. Though the revision petitioners/defendants in their written statement have stated that they follow Hanafi Mad-hab, the Tribunal has gone on to say that they follow Shafi Mad-hab. 5. The Hon'ble Supreme Court has in **Punjab Wakf Board vs. Sham Singh Harike** reported in **[(2019) 4 SCC 698]** , held that the jurisdiction of the Tribunal extends to only dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal; the effect of the ouster of jurisdiction of Civil Court as contained in Section 85; which has been held to be not absolute. The prayers as sought for in the suit are ideally to be addressed before the Civil Court. The Wakf Tribunal has however, decreed the suit holding that the plaintiffs have every right to bury the dead bodies in the burial ground in the plaint schedule property and the defendants have no manner **CRP(WAKF).No.324 OF 2015** **7** of right to obstruct the same. It is further decreed that the defendants are permanently restrained from obstructing the plaintiffs and other similarly situated persons from burying their dead bodies in the plaint schedule property. Since the petitioners have no grievance regarding that portion of the decree, we feel it is not necessary to dismiss the suit itself on the ground of nonmaintainability. 6. The limited grievance of the revision petitioners is that while decreeing the suit, the Tribunal has also held that it is of the view that preference must be given to the close relatives of the deceased to lead the funeral prayer. According to the revision petitioners such a finding is totally uncalled for, having regard to the fact that the mosque is a Hanafi mosque, which has been following the Hanafi tenets for the past several years. It is contended that the petitioners have no objection in the plaintiffs burying the dead bodies of their relatives in the graveyard of the Jama-ath, provided it is done following the Hanafi rituals. Since the petitioners had specifically contended in the written statement itself that they are not obstructing the burial of the dead bodies of the relatives of the plaintiffs, there was no occasion to go further and direct the manner in which the prayers at the time of burial **CRP(WAKF).No.324 OF 2015** **8** are to be offered; is the contention. They hence pray that the decree passed by the Tribunal may be modified by adding a condition that the plaintiffs will be bound to follow the Hanafi Mad-hab regarding the offering of prayers at the time of burial. 7. As per the principles of Mohammedan law, there can be two types of graveyards viz. Private graveyard where members of family alone are buried and Public graveyard where any muslim can be buried. While a right may not be available to all muslims for being buried in a private graveyard, such a right is recognised as far as a public graveyard is concerned. However, the issue as to whether such a right can be exercised only subject to the the mad-hab which is being followed by the mosque/Jama-ath, is not free from doubt. The counsel for the respondents 1 to 7 fairly admits that the reference to Shafi Mad-hab in the judgment is a mistake and as a matter of fact the petitioners are followers of Hanafi Mad-hab. Since the matter relates to burial of dead bodies, we are of the opinion that the declaration as to the right to bury need not be interfered with. However, since the Tribunal lacks jurisdiction to entertain the suit, we are of the opinion that the findings of the Tribunal regarding the offer of prayers at the time of burial have to be vacated. **CRP(WAKF).No.324 OF 2015** **9** 8. The revision petition is disposed of. The decree passed by the Wakf Tribunal is confirmed to the extent it holds that the plaintiffs are entitled to bury the dead bodies of their relatives in the graveyard attached to the mosque; which the petitioners anyway concede. The findings of the Tribunal regarding the right of every muslim to have their dead bodies buried in a public graveyard, according to the mad-hab which the sect he belonged to is following; is vacated. This judgment will not in any way affect the rights of the parties to approach the appropriate forum for a decision on the issue whether the prayers to be offered at the time of burial should be according to the Hanafi Mad-hab or the beliefs of the Salafi sect to which the plaintiffs are said to belong. The parties are directed to bear their respective costs. ## Sd/- **K. VINOD CHANDRAN JUDGE** Sd/- **T.R. RAVI JUDGE** dsn