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Andhra Pradesh High Court
Judges : B.P.JEEVAN REDDY, V.MADHAVA RAO
Amjadulla Siddiqui - Appellant
Versus
Mirza Nizamuddin Baig - Respondent
Decided On : 03-02-82
SCHEME - APPOINTMENT OF MUTAVALLI - JURISDICTION OF CIVIL COURT - WAKF ACT, 1954 - APPLICABILITY - COURT'S POWER TO APPOINT MUTAVALLI - NOMINATION BY MUTAVALLI - VALIDITY - SCHEME FRAMED UNDER S. 92, C. P. C. - EFFECT OF WAKF ACT ON SCHEME - INTERPRETATION.
Fact of the Case:
A suit was filed under S. 92 of the Civil Procedure Code for framing a scheme for a mosque. A scheme was framed in 1915, which provided for the appointment of a Muttavalli from among the descendants of the founder. In 1978, the Muttavalli died, and a dispute arose regarding the appointment of his successor. The Civil Court appointed a Muttavalli, but this order was challenged by another person claiming to be the rightful Muttavalli. The issue before the court was whether the Civil Court had the jurisdiction to appoint a Muttavalli after the enactment of the Wakf Act, 1954, and whether the scheme framed under S. 92, C. P. C. was still operative.
Finding of the Court:
The court held that the Wakf Act, 1954 did not nullify or affect the schemes framed by the Court and in force on the date of the coming into force of the Act. The court further held that the scheme framed under S. 92, C. P. C. was still operative and that the Civil Court had the jurisdiction to appoint a Muttavalli in accordance with the scheme.
Issues: 1. Whether the Wakf Act, 1954 nullified or affected the schemes framed by the Court under S. 92, C. P. C.? 2. Whether the scheme framed under S. 92, C. P. C. was still operative after the enactment of the Wakf Act, 1954? 3. Whether the Civil Court had the jurisdiction to appoint a Muttavalli in accordance with the scheme?
Ratio Decidendi: 1. The court held that the Wakf Act, 1954 did not contain any provision that expressly stated that the schemes framed under S. 92, C. P. C. would cease to be operative on the coming into force of the Act. 2. The court also held that S. 55 of the Wakf Act, 1954, which allowed the Wakf Board to institute suits under S. 92, C. P. C., implied that the schemes framed under S. 92, C. P. C. were still operative. 3. The court further held that the scheme framed under S. 92, C. P. C. provided for the appointment of a Muttavalli from among the descendants of the founder, and that the Civil Court had the jurisdiction to appoint a Muttavalli in accordance with the scheme.
Final Decision: The court dismissed the revision petitions and set aside the order of the Civil Court appointing a Muttavalli. The court also set aside the order recording the compromise entered into between the parties, as the person who entered into the compromise was not competent to act on behalf of the plaintiff-institution.
( 1 ) THE three revision petitions and the four C. M. Ps. can be disposed of under a common order. They arise in the following circumstances:
( 2 ) O. S. No. 750/73 was instituted by the Jumma Masjid, represented by the Muttavalli Abdul Rahim, for eviction of the tenant, Sri Radha Krishna Rice Mill. It was decreed by the trial Court. The tenant-rice mill filed A. S. No. 480/76 in this court. Pending the appeal. Abdul Rahim died in Karachi, Pakistan, in the year 1978. Thereupon the appellant-tenant filed C. M. P. 3635/78 for bringing on record one Abdul Gafoor as the Mutavalli and legal representative of Abdul Rahim. Before this petition was ordered, Abdul Gafoor also died in a plane accident on 19-8-1980. Thereupon, the appellant-tenant filed C. M. P. 18141/80 to bring on record Mohiuddin Ali Khan as Muttavalli of the plaintiff mosque. While this petition was pending a compromise was arrived at between the tenant-appellant and the mosque, which was also approved by the Government. Thereupon C. M. P. 2659/81 was filed by the appellant-tenant and the mosque represented by Mohiuddin Ali Khan, who claimed to be the Muttavalli of the mosque, for recording the compromise arrived at between them.
( 3 ) YET another petition, C. M. P. 3300/78 was filed meanwhile by one Abdul Khuddus Ali to bring him on record as the legal representative of late Abdul Rahim. He claimed that he has been nominated as the Muttavalli under a will executed by Abdul Rahim and therefore, he is entitled to act as Muttavalli. All the four petitions came up before us and by our order dated 17-3-1981, we allowed C. M. P. 18141/80 and impleaded Mohiuddin Ali Khan in the place of deceased Abdul Rahim as Muttavalli of the plaintiff-mosque, on the basis of an order of the Wakf Board, appointing him as the Muttavalli temporarily C. M. P. No. 3635/78 had become unnecessary because Abdul Gafoor, who was sought to be brought on record therein as Muttavalli, had himself died pending the petition. C. M. P. No. 3300/78 was dismissed by us observing that it shall be open to the petitioner in the said C. M. P. , to establish his rights before a civil Court or other appropriate forum, as the case may be. Having done so, we recorded the compromise as requested in C. M. P. 2659/81 and the appeal was disposed of accordingly.
( 4 ) ON 31-3-1981, these four petitions were filed by one Mir Shah Zahur. The main relief sought for in the C. M. Ps. is to recognise the petitioner therein as the Muttavalli of the plaintiff-mosque and to set aside the compromise decree in A. S. No. 480/76 in as much as it has been entered into by a person not competent to act on behalf of the plaintiff-mosque. The main basis upon which this relief is sought for is the order of the learned Subordinate Judge, Vijayawada, dated 7-3/1981 in I. A. Nos. 3517, 4431 and 4432 of 1980. It is necessary to mention the circumstances, in which the said three I. As. Came to be filed and ordered.
( 5 ) AS far back as 1913, a suit, O. S. 113 of 1913 was filed to frame a scheme under S. 92 of the Civil Procedure Code, for this mosque. A scheme was accordingly framed by the Civil Court, in 1915. Clauses (1), (2) and (9) of the said Scheme are relevant for the present purpose and must be set out in full. " (1) Abdul Hakeem shall be the first trustee of the mosque and its properties and he shall hold office for life and shall have power to appoint his successor, each succeeding trustee shall hold office, similarly for life and shall have power to appoint his successor. The first and succeeding trustees, shall appoint their successors from among the descendants of the founder Shah Musfir Saheb. (2) If any trustee dies or vacates office without appointing his successor or if for any reason the office of trustee falls vacant, the Court may appoint a trustee from among the descendants of the founder on the applications of not less than 2 worshippers of Bezwada and if there is no person from among the descendants of
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