T.K. Nafeesa and others v. IHYA-UL-ISLAM SANGHAM and A.V. Ismail

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 RP.No. 920 of 2009(B) --------------------AGAINST THE ORDER IN CRP.782/2007 .................... REVIEW PETITIONER(S): PETITIONERS/REVN.PETITIONERS -------------------------------------------------- 1. T.K.NAFEESA, AGED 60 YEARS,D/O.LATE KUNHIMAHINDOYA MUSALIAR, THACHAMKUNNUMMAL HOUSE,MADAVOOR AMSOM AND DESOM, KOZHIKODE TALUK. 2. P.AMINA, AGED 65 YEARS,D/O.LATE KUNHIMAHINDOYA MUSALIAR, POKKITTERA HOUSE,ELETTIL AMSOM,KIZHAKKOTH DESOM, KOZHIKODE TALUK. 3. C.M.MUHAMMED ABOOBACKER, AGED 24 YEARS,S/O.LATE C.M.ZAINUDDIN MUSALIYAR, CHITTADI MEETHAL,MADAVOOR AMSOM AND DESOM, KOZHIKODE TALUK. 4. C.M.KUNHIMAHIN MUSALIAR, AGED 50 YEARS,S/O.C.M.MOHAMMED MUSALIAR, VELUTHEDATH HOUSE,MADAVOOR AMSOM AND DESOM, KOZHIKODE TALUK.(BROTHER'S S/O.C.M.VALIYULLAHI) 5. T.K.ABDUL RASHEED, AGED 45 YEARS,S/O.LATE FATHIMA,PANANCHALIL, MADAVOOR AMSOM AND DESOM,KOZHIKODE TALUK. (DECEASED SISTER'S D/O.LATE C.M.VALIYULLAHI) 6. T.K.HAFSA, AGED 48 YEARS,D/O.LATE FATHIMA,THATTARIPARAMBATH, PARANNUR AMSOM AND DESOM,KOZHIKODE TALUK. (DECEASED SISTER'S D/O.LATE C.M.VALIYULLAHI) 7. K.K.SUHARA, AGED 35 YEARS,D/O.LATE REHEEMA,KARIYATHAN KAVIL HOUSE,MADAVOOR AMSOM AND DESOM,KOZHIKODE TALUK. (DECEASED SISTER'S D/O.LATE C.M.VALIYULLAHI) ## 8. P.ZAINABA, AGED 30 YEARS,D/O.LATE REHEEMA,PADINHATHODUKAYIL HOUSE,PARAMBATH KAVU AMSOM AND DESOM,KOZHIKODE TALUK.(DECEASED SISTER'S D/O.LATE C.M.VALIYULLAHI) ## 9. N.P.SARA, AGED 28 YEARS,D/O.LATE REHEEMA,NELLOLAPPATTIL HOUSE,KIZHAKKOTH AMSOM AND DESOM,KOZHIKODE TALUK. (DECEASED SISTER'S D/O.LATE C.M.VALIYULLAHI) ## 10. T.K.MEHAMMOOD, AGED 30 YEARS,S/O.NAFEESA,THACHAMKUNNUMMAL HOUSE, MADAVOOR AMSOM AND DESOM,KOZHIKODE TALUK. (SISTER'S S/O.LATE C.M.VALIYULLAHI) 11. C.M.SAINABA, AGED 48 YEARS,W/O.LATE C.M.ZAINUDDIN MUSALIAR, CHITTADI MEETHAL,MADAVOOR AMSOM AND DESOM, KOZHIKODE TALUK. (DECEASED BROTHER'S W/O.LATE C.M.VALIYULLAHI) BY ADV. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR SRI.K.JAGADEESH RESPONDENT(S): RESPONDENTS -------------------------- 1. IHYA-UL-ISLAM SANGHAM, MADAVOOR,PALLITHAZHAM,REP.BY ITS SECRETARY HAVE ITS OFFICE AT MADAVOOR,PALLITHAZHAM, MADAVOOR DESOM,KOZHIKODE DISTRICT AND TALUK. 2. A.V.ISMAIL,S/O.A.N.VEERANKUTTY, AGED 65 YEARS,SECRETARY AND CHIEF EXECUTIVE OFFICER,KERALA WAKF BOARD,ERNAKULAM. (IMPLEADED AS PER ORDER IN IA.NO.1445/2001, DATED 26-03-2001) ADV.SRI.T.KRISHNANUNNI (SENIOR ADVOCATE FOR R1) ADV. SRI.K.M.FIROZ FOR R1 ADV.SRI.M.M.SAIDU MOHAMMED, R2. THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 13/07/2011, THE COURT ON 16/08/2011 PASSED THE FOLLOWING: ## **K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------Review Petition No.920 of 2009 in C.R.P. No.782 of 2007** **----------------------------------------------Dated 16[th] August, 2011.** ## **O R D E R** ## **Joseph Francis, J.** This Review Petition is filed by the revision petitioners in C.R.P.No.782 of 2007 on the file of this Court. Respondents 1 and 2 herein are the respondents 1 and 2 in that C.R.P. 2. The revision petitioners filed a suit as O.S.No.130/2001 before the Wakf Tribunal, Kozhikode, for declaration that the petitioners are entitled to get 86% of the total income derived from the Jaram Moodal (putting of sacred cloth) by the devotees on the Saint's Khabar (tomb) and 35% of other income derived from that tomb as offering of the devotees and for rendition of account. The petitioners also sought permanent prohibitory injunction restraining the respondents from denying the payment to the petitioners by way of 35% of income derived on the said tomb and to restore the position of paying 86% of the income derived on the jaram moodal. R.P.920/2009 2 3. The tomb referred to above is of C.M.Muhammed Aboobacker Musaliar known as “C.M. Valiyullahi”. The petitioners are the brothers, sisters and other family members of the said “C.M.Valiyullahi”, who died on 19.4.1991. On the said day the members of the 1[st] respondent approached the petitioners and requested that dead body of “C.M.Valliyullahi” is to be buried in the mosque Kabristahan. They also agreed that they would give permission to the petitioners to construct a Makham and the petitioners can take income from it. 4. The petitioners have agreed to the said offer and the body was buried. The respondents in tune with the said agreement have taken a decision on 18.09.1991, in the first meeting itself. A Durgah committee was formed exclusively for the administration of the said Makham under the chairmanship of Musaliar. On the basis of the decision, these petitioners were receiving 35% of the total income from the Durgah and entire Jaram Moodal income and the clothes of the Jaram Moodal. Later on, due to some financial difficulties the defendants requested these petitioners to allow to take 14% of the Jaram R.P.920/2009 3 Moodal income for the welfare of the Madrassa. 5. The above practices continued till 15.6.1998. The Secretary of the 1[st] respondent, who took charge on 15.6.1998 has taken a decision to stop all the payments to the petitioners by using force. It is in the said circumstances, the suit was filed. 6. Defendants 1 and 2 filed separate written statements and additional written statement denying the claim of the petitioners. 7. In the Wakf Tribunal PW1, PW2, DW1 and DW2 were examined and Exts.A1 to 10, B1 to B3, and X1, X2 and C1 were marked. The Wakf Tribunal on considering the evidence found that there was an understanding to pay certain percentage of income from Durgah and income from jaram moodal. But it dismissed the suit on the ground that it is not a legally enforceable right. 8. Against that judgment, the plaintiffs filed C.R.P.No.782/07. This Court, as per order in that C.R.P. dated R.P.920/2009 4 26.8.2009, arrived at the following conclusions : “According to the Islamic belief, the offerings made at the tomb of a dead Saint are meant for fulfillment of objects which were dear to the Saint in his life and they are meant for poor, indigent and sick, so that the benediction may reach the soul of the dead Saint. The plaintiffs have not proved any custom or usage in giving the share of offering in the Durgah to the near relatives of deceased saint as of right. In the present case, there is no written agreement between the plaintiffs and defendants to give share of income from the Durgah to the plaintiffs. In order to get the reliefs claimed in the plaint, the plaintiffs must establish their legal right. Since the plaintiffs have failed to prove their legal right, the learned Wakf Tribunal is perfectly justified in dismissing the suit” and on the basis of those findings this Court dismissed the above C.R.P. Against that order, petitioners in the C.R.P. filed this Review Petition. 9. We heard learned counsel for the petitioners and the learned counsel for respondents 1 and 2. R.P.920/2009 5 10. It is well settled principle that a party is not entitled to seek review of the judgment delivered by this Court merely for the purpose of re-hearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the court is final and departure from the principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. 11. Learned counsel for the review petitioners invited our attention to the decision reported in **Sheikriyammada Nalla Koya v. Administrator, Union Territory of Laccadives ... Island** (1967 KLT 395) and argued that in order to turn a practice into a custom, no time limit is prescribed under law and that if the practice was going on for a considerable period of time, it turns into a custom. 12. Learned counsel for the petitioners also invited our attention to the decision reported in **Syed Altaf Hussain v. Syed Ali** (AIR 1938 Privy Council 71). The dispute in the said case pertains to the sharing of offerings made to the tomb. The PC has found that right of Sajjida Nashin to receive the R.P.920/2009 6 share of the offerings is a right attached to the office and each successive incumbent of that office is entitled to the same as long as he holds the office. 13. That decision is not applicable to the facts of this case. In that case, there was perpetual lease in favour of Sajjida Nashin with regard to the share of offerings, whereas in the present case, there is no such perpetual lease. In the decision reported in **Shah Wajihuddin Ashraf v. Shah Murtaza Ashraf** (AIR 1930 Oudh 32), the court has found that the mere fact that the property was set apart for meeting the expenses of the Durgah would not make it a wakf property when the right to assume possession and divide it according to the ancestral shares was resolved in the agreements in question in the said case. That decision is also not applicable to the facts of the present case as in that case, there was reservation to divide the ancestral shares by family agreement. 14. Admittedly, in this case, the body of the Saint was buried in the property belonging to the wakf and the petitioners did not construct Makham, as agreed by them. As R.P.920/2009 7 held by the Wakf Tribunal, the plaintiffs have not proved any custom or usage in giving the share of offerings in the Durgah to the near relatives of deceased Saint, as of right. On accepting that finding, this Court dismissed the Civil Revision Petition, confirming the judgment of the Wakf Tribunal. Therefore, we find no sufficient ground to review the order of this Court in the C.R.P. Accordingly, this Review Petition is dismissed, as it is without any merits. Sd/- ## **K.M.JOSEPH, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (True copy) P.S. to Judge.