The power of appointment of Mutawalli under S.42 of the Wakf Act can only be exercised when there is a vacancy, and the provision does not empower the Wakf Board to remove a person already functioning as a Mutawalli.

1. This appeal is against the judgment of the learned single judge in O. P. No. 4168 of 1979, by the Kerala Wakf Board. A wakf has been created under the Will dated 25-2-1099, Ext. P1, executed by Abdul Sathar Haji Moosa Sait. The stipulation regarding appointment of Mutawalli described as the managing trustee is that the grand-son of the testator Moosa shall be entitled to be the Mutawalli and after him, his male children and in the absence of such children of the testator's daughters and grand-daughters, being the sisters of the said Moosa, There is also a stipulation to the effect that the person to be appointed as Mutawalli should be a person of maturity and ability. Consequent upon the occurrence of the vacancy the petitioner in the original petition Adam Aboobacker Sait was appointed as the managing trustee at the meeting of the Board of Trustees held 11-2-1978. In pursuance of the said order be has been functioning as the managing trustee. When such was the position, it appears that an allegation was made to the Wakf Board by the respondents 2 to 4 in the original petition that the appointment made by the Board of Trustees is not proper and that it is the second respondent in the original petition. Abdul Kareem Abdul Sait, who should have been appointed as the Mutawalli in accordance with the terms and intention of the Wakf. The Wakf Board enquired into the matter and passed an order as per Ext. P4 on the 17th of November. 1979. The Board held that as between the contesting parties it is Abdul Kareem Abdul Sathar Sait that is eligible and entitled to the appointed as a managing trustee-Mutawalli and that the appointment made by the Board of Trustees is not legal and proper. It is the said decision that was challenged by Adam Aboobacker Sait in O.P. No. 4168 of 1979. The learned Single Judge has by judgment dated 26-3-1982 allowed the original petition and quashed the decision of the Wakf Board, Ext. P4, holding that the Wakf Board bad no jurisdiction to decide the dispute. It is the said decision that is challenged in this appeal by the Wakf Board.

2. The learned single judge has taken the view that the power to appoint Mutawallis of the Wakf Board can only be traced to S.42 of the Wakf Act, 1954 but that the said provision does not confer power on the Wakf Board to decide the dispute when there is contest between rival parties for being appointed as the Mutawalli and that the power of appointment cannot be exercised under the said provision unless there is a vacancy.

3. It was contended by Sri. Wariyar, learned counsel for the appellant, that the view taken by the learned single judge is not right. It was submitted that the Wakf Board has been conferred power by S.15 of the Act of the general superintendence of all Wakfs to ensure that the Wakfs under its superintendence are properly maintained, controlled and administered and that the income thereof is duly applied to the objects and for the purposes for which the Wakfs have been established. He invited our attention to S.15(2)(g) of the Act which confers power on the Wakf Board to appoint and remove the mutawallis in accordance with the provisions of the Act. He submitted that it is in the light of the functions that have been entrusted on the Wakf Board as is clear from S.15 of the Act that we should construe the provisions of S.42 of the Act which have been invoked in this case. He submitted that on a proper construction of S.42 it would be reasonable to hold that the Wakf Board has the power of rendering a decision if there is a dispute in regard to the right to be appointed as a mutawalli and to make a proper appointment if the appointment already made is not in accordance with the terms of the Wakf.

4. S.42 of the Act which calls for construction in this case may be set out as follows:

"When there is a vacancy in the office of the mutawalli of a Wakf and there is no one to be appointed under the terms of the deed of the Wakf, or where the right of any pe