The main legal point established in the judgment is that the court refused to quash the Government's order, as it would result in the restoration of an equally bad order by the Wakf Board.

Jagannadha Rao, C.J.

The first appellant was first petitioner in the writ petition, O.P.4771of 1988. The second writ petitioner in the writ petition was one P. Mohammed who died during the pendency of the writ petition. In his place, one Mohammed, S/o. Marakkar has come on record as a person Mutawalli nominated by the Managing Committee.

2. The dispute relates to the office of Mutawalli. The appellants claim by way of nomination by an elected Managing Committee. The respondents 3 and 4 claim as hereditary Mutawallies, as heirs of one Kunhirayan Ali.

3. The facts are as follows:-The father of the respondents 3 and 4, one Kunhirayan Ali, was functioning as the Mutawalli of the Wakf in question from 1972 after the demise of his father as per the terms of a Wakf Deed of 1939 (document 2156 of 1939). Now, after the demise of the said Kunhirayan Ali, his daughter and son (respondents 3 and 4) claimed to be the Mulawallies as per the registered deed executed by Kunhirayan Ali (deed No.431 of 1981) dated 17-8-1981.

4. Originally, the rival claimant to the above office of Mutawalli was one K.K.S. Kunhi Thangal. He was nominated by the Managing Committee of the Wakf. The Managing Committee itself is said to have come into existence on 18-1-1974 when the members of the Mahal or Congregation are said to have prepared a written constitution. There is a dispute as to the bye-laws. One VadakkethilValiya Mohammed was elected as President and the said K.K.S. Kuahi Thangal was nominated as the Mutawalli. It is said that the Managing Committee 'removed' Kunhirayan Ali before nominating the said K.K.S. Kunhi Thangal as Mutawalli. Aggrieved thereby, Kunhirayan Ali filed OS 273 of 1974 in the District Mi. nsiffs Court, Perinthalamanna for injunction. In that suit,there was a clear finding that Kunhirayan Ali was validly functioning as Mutawalli for a long time after his father's demise as per the Deed of Wakf of 1939 and was the lawful Mutawalli. The Civil Court held:

"From Exts. A5 and A6 dated 15-1-1975 and 7-12-1975 respectively, it is seen that the plaintiff is the Mutawalli in 1975 also, i.e., at the time of filing of the suit and subsequent to it. So the case of the defendant that the plaintiff has been removed from the office of Mutawalli by the Committee cannot be recognised in law."

However, the suit was dismissed on other grounds. It was also slated in the judgment that the persons claiming to have been nominated by the elected body on 18-1-1974, have to seek recognition before the Wakf Board.

5. In 1976, the elected Managing Committee and its nominee K.K.S. Kunhi Thangal filed Petition 10 of 1976 under S.44 of the Wakf Act seeking recognition of the nominee Sri.K.K.S. Kunhi Thangal as the lawful Mutawalli and impleading the hereditary Mutawalli, Kunhirayan Ali as respondent. By an elaborate order. Ext.P1, dated 16-12-1977, the Wakf Board rejected the said petition of the Committee and its nominee, upholding the case of the hereditary Mutawalli, Shri Kunhirayan Ali who relied on the Deed of Wakf of 1939. The Wakf Board also held that there was no evidence to show that the bye-laws, Ext.P6, have been accepted by the respondent (Kunhirayan ali). The Wakf Board held that Kunhirayan Ali must be given an opportunity to raise his objections to the bye-laws and for his removal. The Committee was directed to give a hearing. In effect, the election and nomination of Shri.K.K.S. Kunhi Thangal was not recognised by the Wakf Board in Ext.Pl order dated 16-12-1977. The following direction was given by. the Wakf Board in Ext.Pl:'

"There is no evidence to show that bye-laws Ext.P6 have been accepted by the respondent (Kunhirayan ali). Hence it seems necessary that respondent is given an opportunity to state his objections, if any, on the various provisions contained in the bye-laws and after hearing all the parties interested in the Wakf, the Board will finalise the bye-laws. Consistent with the provisions contained in Ext.R1 (deed of Wakf)....

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