Pattiniyoda Hameed v. Pappadam Mohammed and others

## **C. R.** ## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 9TH DAY OF JULY 2013/18TH ASHADHA, 1935 C. R. P. No. 43 of 2008 ------------------------------------- (AGAINST THE JUDGMENT IN W.T. O.P.NO.1/2007 of WAKF TRIBUNAL, LAKSHADWEEP, KAVARATTI ISLAND DATED 22-12-2007) ..................... REVISION PETITIONER(S): RESPONDENT: ----------------------------------------------------------- PATTINIYODA HAMEED, S/O.RAYIPURA AHAMMED MALMI, KAVARATTI. BY ADVS.SRI.P.K.IBRAHIM SMT.K.P.AMBIKA SRI.THOMSTINE K.AUGUSTINE SRI.C.N.GOPAKUMAR RESPONDENT(S)/PETITIONERS: ----------------------------------------------- 1. PAPPADAM MOHAMMED, S/O.K.R.P.MAHAMOOD, KAVARATTI. 2. PAPPADAM FATHIMA, D/O.K.R.P.MAHAMOOD, KAVARATTI. 3. PAPPADAM SAFIYA, D/O.K.R.P.MAHAMOOD, KAVARATTI. 4. PAPPADAM SAROAMMA, D/O.K.R.P.MAHAMOOD, KAVARATTI. 5. PAPPADAM BHARKATHULLA, S/O.K.R.P.MAHAMOOD, KAVARATTI. 6. PAPPADAM AKBAR, - D/O.K.R.P.MAHAMOOD, KAVARATTI. R1 TO 6 BY ADV. SRI.T.H.ABDUL AZEEZ R2 TO R6 BY ADV. SRI.M.AHAMED KUNJU THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C. R.** ## **K. M. JOSEPH & A. HARIPRASAD, JJ.** **----------------------------------------------------C. R. P. NO.43 OF 2008 ----------------------------------------------------Dated this the 9th July, 2013** ## **ORDER** ## **K. M. Joseph,** Revision Petitioner is the respondent in W.T.OP.No.1/07 on the file of the Wakf Tribunal, Lakshadweep, Kavaratti Island. He filed a petition before the Lakshadweep State Wakf Board on 30.10.2005 wherein he requested the Board to pass an order appointing him urgently as Mutawalli of Kadatha Palli at Kavaratti. According to him, the Kadatha Palli and its properties were registered as wakf on 25.8.1968. His father R.P. Ahammed Malmi was the Muthawalli of the said mosque. The said R.P. Ahammed Malmi died in the year 1985. It was his further case that no one was appointed as Mutawalli after the same. According to him, he is the eldest son of his father and as per Islamic Shariat, _**CRP.NO.43/08**_ _**2**_ he is eligible for the Mutawalliship as he belongs to Sunnisect. On receipt of the application, the Board published a notice dated 12.12.2005 in the Lakshadweep Times calling for objections. The respondents herein filed objection before the Wakf Board on 30.12.2005. They contended that actually there was a Suit filed as O.S.No.4/85 before the Sub Court, Kavaratti between the legal representatives of Ahammed Malmi regarding Kadatha Palli and its property situated therein. According to them, there was a compromise by which the wakf property was allotted to Rayipura Mohamood who was the father of the respondents. Subsequently, the said Mohamood and the petitioners herein filed a joint application dated 22.2.1988 before the Lakshadweep State Wakf Board requesting to enter Kadatha Palli and properties in the name of the said Mohamood. In the joint application, it is further averred that it was also requested to reject the application filed by the petitioner herein. It was accordingly the Wakf Board passed order _**3**_ ## _**CRP.NO.43/08**_ dated 11.10.1988 appointing the father of the respondents Mohamood as Mutawalli. The said Mohamood continued as Mutawalli of the wakf till his death. (It is submitted by the learned counsel for the petitioner that Mohamood died in the year 2005). According to the respondents, the petitioner was estopped from raising any claim on the mosque by virtue of the compromise and joint petition and from contending that he has any right as Mutawalli. The Wakf Board after noticing the contentions, took the view that in the interest of the wakf it is better that one of the respondents and the petitioner be appointed as Joint Mutawallis. 2. It is against the same that the respondents filed W.T.OP.No.1/07 as already mentioned. The petitioner filed a Cross Objection. The Tribunal has allowed the application filed by the respondents and set aside the order of the Wakf Board. In doing so, the Tribunal drew support from the compromise entered into in O.S.No.4/85. The Tribunal found that an exclusive right was given _**CRP.NO.43/08**_ _**4**_ to the A schedule property to the plaintiffs and the B schedule property to the defendants therein. It was found that the allotment made in favour of Mohamood, the predecessor in interest of the respondents was an exclusive allotment. It was further found that if at all there was intention of the parties of reversion of the mutawalliship on the death of Mohamood to the other children of Ahammed Malmi, it would have been stipulated. There is no oral evidence adduced regarding the intention of the parties to the compromise. Reference is made to the joint petition before the Wakf Board by the petitioner and late Mohamood (Ext.B2). It is found that it is surprising to note that in the petition filed before the Wakf Board after the death of Mohamood, it is contended that after the death of Ahammed Malmi in the year 1985, no one has been appointed as mutawalli while on his own request, the Board passed an order on 11.10.1988 wherein it is clearly written that the Board after due enquiry, appointed Mohamood as the mutawalli referring _**CRP.NO.43/08**_ _**5**_ to the joint application of the brothers. It is found that the claim is barred by res judicata and estoppel. It is found that the petitioner had made a claim earlier and had withdrawn his application on the basis of the compromise and relinquished all his rights in respect of the mosque and its properties. The contention of the petitioner that this item of the property was not included in the plaint A schedule and that the legal representatives were not made parties was found to be without any face value, as they were parties to the Suit and signed the compromise. The Tribunal also refers to the claim of the petitioner based on Shariat law of inheritance. It is noted that his claim is that on the death of his father, he being the eldest member is entitled to hold the management of the property. But, it is found that he was only one of the legal heirs. It is further found that the mutawalliship and management of looking after of the affairs of the property was exclusively allotted and given to Mohamood relinquishing the rights of all legal heirs including the petitioner and _**6**_ _**CRP.NO.43/08**_ he cannot turn around now and say that he is the eldest son of Ahammed Malmi and is entitled to mutawalliship. It is found that the Board has not considered the rights of the parties in its right perspective. It is further found that actually on the death of Mohamood, his legal heirs have become the rightful mutawalli and there is no vacancy of mutawalliship. It was found that the Board ought to have given the right of mutawalliship to the respondents on the basis of the compromise and joint petition. On this reasoning, inter alia, the Tribunal allowed the application filed by the respondents to set aside the order of the Wakf Board. 3. We heard Shri P.K. Ibrahim, learned counsel for the revision petitioner and Shri T. H. Abdul Azeez, learned counsel appearing for the respondents. 4. Learned counsel for the petitioner would submit that actually under the compromise the petitioner had only given his right to mutawalliship in favour of his elder brother Mohamood. _**CRP.NO.43/08**_ _**CRP.NO.43/08 7**_ Subsequently, Mohamood died. On the death of Mohamood, it is his contention that being the direct lineal descendant of late Ahammed Malmi, he ought to have been appointed as mutawalli in preference to the respondents who are only the children of his late brother. It is submitted that it is one thing to say that he has given up the mutawalliship in favour of his late brother and which found place in the compromise and another thing to say that on the death of his brother, he is estopped from raising a claim for mutawalliship on the basis that he is the lineal descendant of his late father. In other words, this is a case where the lineal descendant of the first degree is pitted against the lineal descendants of the second degree, namely his brother's son. He would also reiterate before us that actually the property on which the mosque stands was not even part of the plaint schedule. Recognizing the right of his late brother being the eldest son, it was decided to give up his rights, vis-a-vis, his late elder brother who was none other than the father of the _**CRP.NO.43/08**_ _**8**_ respondents. He drew our attention to the following passages from the Law of Wakfs by Shri S.A. Kader: _“_ _**Recognised principles:** In the appointment of mutawalli the following principles are well established:_ _(i) The directions of the founder should not be disregarded except for the manifest benefit of the wakf._ _(ii) A stranger should not be appointed so long as there is any member of the family of the founder fit to hold the office._ _(iii) Where there is a contest between a lineal descendant of the founder and one not a lineal descendant, the court is not bound to appoint the lineal descendant and has a discretion to appoint the other claimant if found more suitable._ _(iv) Difference of school is no bar to the appointment of the mutawalli. In Dial Chand v. Syed Karamut Ali, a Shia was appointed as mutawalli of a Sunni wakf.”_ _**9**_ _**CRP.NO.43/08**_ 5. Therefore, with reference to the said principles, he would submit that with reference to the second of the said principles, he would make an attempt to contend that since he is a member of the family being lineal descendant, he should have been appointed as against the respondents. We have no hesitation in rejecting that argument. The said principle would be applicable when a stranger, meaning a person who is not a member of the family stakes the claim as against the member of the family. In this case, both the petitioner and the respondents are members of the same family. In fact, it is categorically stated in the third principle that when there is a contest between a lineal descendant and a person who is not a lineal descendant, the Court is not bound to appoint the lineal descendant and there is a discretion to appoint the other claimant if found most suitable. _**CRP.NO.43/08**_ _**10**_ 6. Learned counsel for the respondents would submit that what is involved is a private wakf. The entire rights over the property were relinquished by the petitioner and as already noted, the joint petition was filed. Their father became the mutawalli. When he died, they have the right to become the mutawalli. 7. In answering the question before us, we will have to consider as to who is a mutawalli. Under the Wakf Act, “Mutawalli” is defined as follows: _“_ _**3. Definitions.-** In this Act, unless the context otherwise requires:-_ _(i) “mutawalli” means any person appointed, either verbally or under any deed or instrument by which a wakf has been created, or by a competent authority, to be the mutawalli of a wakf and includes any person who is a mutawalli of a wakf by virtue of any custom or who is a naib-mutawalli, khadim, amin or other mujawar, sajjadanashin, person appointed by a mutawalli to perform the duties of a_ _**CRP.NO.43/08**_ _**11**_ _mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any wakf or wakf property:_ _Provided that 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.”_ “Wakf” is defined in Section 3(r) as meaning the permanent dedication. It reads as follows: _“_ _**3. Definitions.-** In this Act, unless the context otherwise requires.- ( r ): “wakf” means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes-_ _(i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;_ _(ii) “grants”, including mashrut-ulkhidmat for any purpose recognised by the Muslim_ _**CRP.NO.43/08**_ _**12**_ _law as pious, religious or charitable; and_ _(iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, and “wakf” means any person making such dedication.”_ There was an earlier Suit as O.S.No.4/85 between the legal heirs of Ahammed Malmi who was the father of the petitioner and grandfather of the respondents. The Suit ended in a compromise. Under the terms of the compromise, the property which is the subject matter of our discussion and which is admittedly wakf property being used as a mosque, was also made subject matter of the compromise. It is true that it was not part of the petition schedule, but there cannot be any dispute that even if the property was not the subject matter of the suit or petition, the parties would be free to enter into a compromise so long as it is lawful otherwise. Under the compromise, it was agreed that the property comprising in Survey No.40/10 and in regard to the mosque therein, the management and _**13**_ _**CRP.NO.43/08**_ authority were to vest from the date of the compromise with Mohamood, the father of the respondents. Pursuant to the same, apparently a joint petition was filed before the Wakf Board by Mohamood and the petitioner herein and thereunder the petitioner gave up his right and Mohamood was recognized as the mutawalli. Mohamood died in the year 2005. It was thereupon that, as already noted, the petitioner filed a petition before the Wakf Board. It is true that in the petition there is no mention about the compromise and the joint petition and giving up his rights and the vesting of mutawalliship with his late brother. The Wakf Board has proceeded to make the petitioner and one of the respondents as joint mutawallis. It is broadly stated that it is in the interest of the wakf. 8. It is important at this juncture to consider the legal position of a mutawalli. It is elementary that the wakif, the founder of the wakf can constitute himself as the mutawalli. It is also settled law that it is open to the wakif to lay down the principle by which the _**CRP.NO.43/08**_ _**14**_ mutawalli will be appointed. In other words, he can law down rules of succession. A mutawalli is the manager of the properties. The properties comprised in the wakf vest in God Almighty. A mutawalli is not a trustee. The mutawalli has no right in the estate. 9. We must further pose the question as to whether under the Mohammedan Law the mutawalliship is heritable ? In the Law of Wakfs by S.A. Khader, we notice the following commentary: _“_ _**Hereditary right to the office of mutawalli:** Muslim law does not recognise any right of inheritance or rule of hereditary succession to the office of mutawalli. 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 mutawalli becomes hereditary by custom in which case the custom should be followed.”_ _**CRP.NO.43/08**_ _**15**_ Therefore, it is clear that there is no right of inheritance or rule of hereditary succession. The only exceptions to the principle being when the founder has laid down the rule of hereditary succession and/or where it became hereditary on the basis of a custom. / 10. In the compromise we have noticed the terms of the compromise which appears to suggest that the entire right in respect of the property inclusive of the mosque and the right to manage has been given up by the other legal heirs of Mohamood. We may pose the question as to whether there was any property right in the mosque which could have been given up by the petitioner. On the creation of a wakf, all rights in the property vests in the Almighty. What remains is the right to administer the same. No doubt, a wakfal-aulad, a wakf-al-aulad is also a wakf to the extent that the property is dedicated for any purpose recognized by Mohammedan Law as pious, religious or charitable. _**16**_ _**CRP.NO.43/08**_ 11. As far as this case is concerned, we would proceed on the basis that Mohamood, the predecessor in interest of the respondents, became entitled to mutawalliship of the mosque in question. His mutawalliship came about apparently as a result of the terms of the compromise which came to be acted upon by the petitioner herein also as evident from the joint petition filed before the Wakf Board. Thus, we proceed on the basis that Mohamood became the mutawalli. Mohamood died in the year 2005. When Mohamood died, we must ask ourselves the question as to whether this is a case covered by the two exceptions to the principle that mutawalliship does not pass by succession or inheritance. We are not shown any evidence to the effect that the founder had laid down that the mutawalli is to be appointed on the basis of any hereditary right. Still further, there is no custom even pleaded and there is no contention also that by virtue of a custom, either party can stake a claim to the mutawalliship by virtue of inheritance. If that be the _**17**_ ## _**CRP.NO.43/08**_ position, the power of the Kazi which under the Wakf Act is undoubtedly vested with the Wakf Board would come into play. 12. Neither the petitioner nor the respondents can lay an exclusive right to mutawalliship only on the basis of their being lineal descendants of late Ahammed Malmi. Both the petitioner and the respondents are members of the family. We have already rejected the attempt of the petitioner to characterize the respondents as strangers. On the principles which apply in this field of Mohammedan Law, the criterion would be who is the more suitable person to be appointed as the mutawalli from among the petitioner and the respondents. We have already noticed the principle which is that the person who is most suitable for being appointed, is to be appointed. This aspect of the matter has not engaged the attention either of the Wakf Board or the Tribunal. The Tribunal has proceeded on the basis that under the compromise, the rights of the others including the petitioner have been given up in favour of late _**CRP.NO.43/08 18**_ Mohamood, and that actually on the death of Mohamood, his legal heirs have become the rightful mutawallis and there was no vacancy of mutawalli. We have already found that the respondents could not have been appointed as the mutawalli only for the reason that under the compromise the other legal heirs have given up right in favour of Mohamood, and that mutawalliship does not pass by inheritance. We should in this context reiterate that mutawalliship is actually an office. There is no right to property vesting in the mutawalli in regard to the wakf. His only right is essentially to administer the wakf property. The upshot of the above discussion is that we find that the order of the Tribunal is unsustainable. Since the Wakf Board has also not considered the question in the correct perspective, the matter must be redone by the Board. Accordingly, we set aside the order of the Tribunal and direct that the Wakf Board will take up the petition filed by the petitioner and pass orders with opportunity of _**19**_ _**CRP.NO.43/08**_ hearing to the parties. It will specifically consider the question as to who among the parties is suitable for being appointed as the mutawalli. The parties will appear before the Wakf Board, Lakshadweep on 24.9.2013 and a decision will be taken by the Board within a period of three months from 24.9.2013. **Sd/=** **K. M. JOSEPH JUDGE Sd/= A. HARIPRASAD JUDGE** ## **kbk.** _**//True Copy//**_