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2013 Supreme(Ker) 546
High Court of Kerala
K.M. JOSEPH & A. HARIPRASAD, JJ.
K.A. Abdul Latheef & Others
Versus
K.P. Abdurahiman & Others
CRP (Wakf). No. 172 of 2013
Decided On : 23-09-2013
For the Petitioners:T.H. Abdul Azeez, Advocate.
For the Respondents:R1, P.B. Krishnan, Caveator, Mrs. Geetha P. Menon, N. Ajith, P.M. Neelakandan, P.B. Subramanyan, R2, T.K. Vipindas, Mrs. P.K. Priya, K.V. Sree Vinayakan, K.M. Muhammed Hussain, Advocates, R3, K. Shibili Naha, SC, Wakf Board.
A mutawalli cannot transfer or release his office to another person or committee during his lifetime, unless he is clothed with powers which are so general in nature. Muhammadan Law recognizes the power of a mutawalli to nominate his successor when he is in death-bed with certain restrictions.
Headnote:
mutawalli - Wakf - Wakf Act, 1995 (Sections 3(i), 3(r), 50) - The court considered whether a mutawalli of a wakf can voluntarily transfer/release his mutawalliship during his lifetime in favor of another person or committee formed from among the members of the congregation without any express power conferred on him to do so. The court examined the principles of Muhammadan Law and the authoritative texts on the governance of wakfs to determine the legality of the transfer of mutawalliship. It was held that a mutawalli cannot transfer or release his office to another person or committee during his lifetime, unless he is clothed with powers which are so general in nature. The court also emphasized that Muhammadan Law recognizes the power of a mutawalli to nominate his successor when he is in death-bed with certain restrictions. The court concluded that the plaintiff retained the mutawalliship and the transfer of mutawalliship to the committee was not legally sustainable.
Fact of the Case:
The plaintiff claimed to be the mutawalli of a Mosque and filed a suit for injunction against the defendants who contended that the plaintiff had transferred his mutawalliship to a committee formed from among the members of the congregation. The defendants argued that the committee was in actual administration of the wakf. The court considered the evidence and documents presented by both parties to determine the plaintiff's right to mutawalliship and the legality of the transfer of mutawalliship to the committee.
Finding of the Court:
The court found that the plaintiff retained the mutawalliship and the transfer of mutawalliship to the committee was not legally sustainable. The court also held that the suit for injunction simplicitor was maintainable based on the plaintiff's right to administer the wakf as mutawalli and his apprehension of interference by the defendants.
Issues: The issues raised for adjudication by the court included the plaintiff's right as the mutawalli of the wakf property, the administration and management of the wakf by a committee elected by the general body of the congregation, the permissibility of the prayer for injunction, and the reliefs and costs.
Ratio Decidendi: The court relied on the principles of Muhammadan Law and the authoritative texts on the governance of wakfs to determine the legality of the transfer of mutawalliship. The court emphasized that a mutawalli cannot transfer or release his office to another person or committee during his lifetime, unless he is clothed with powers which are so general in nature. The court also highlighted that Muhammadan Law recognizes the power of a mutawalli to nominate his successor when he is in death-bed with certain restrictions.
Final Decision: The court dismissed the revision petition, confirming the Tribunal's decree restraining the defendants from obstructing and interfering with the administration and management of the wakf by the plaintiff as mutawalli. The parties were directed to suffer their costs.
A. Hariprasad, J.
1. "Can a mutawalli of a wakf voluntarily transfer/release his mutawalliship during his life time in favour of another person or committee formed from among the members of the congregation without any express power conferred on him to do so?
This is the precise legal question that arises for consideration in this civil revision.
2. Relevant facts in short: Defendants 1, 2 and 4 in O.S.No.30 of 2012 before the Wakf Tribunal, Kozhikode (in short, "the Tribunal") are the revision petitioners. Plaintiff and defendants 3 and 5 are the respondents. 1st respondent/plaintiff claimed that he is the mutawalli of Puzhakkara Kammadath Juma Masjid (in short, "the Mosque"). Admittedly it is an ancient Mosque. 1st respondent/plaintiff contended that the plaint schedule property was dedicated as wakf in ancient times by members of Puzhakkara Tarwad who followed Mappila Marumakkathayam. From the time of construction of the Mosque, it was being managed by the eldest male member of the Tarwad as hereditary mutawalli. While so, a partition deed was entered into between the members of the said Tarwad and Cheenamadathu Tarwad in the year 1945. That is Ext.A1. It is written in Kannada. True translation of Ext.A1 is Ext.A2. Item No.F1 in Ext.A1 is the plaint schedule property. The income from properties described in schedules F2 to 5 is earmarked for paying salary to Mukri attached to the Mosque and other expenses. 1st respondent/plaintiff is executant No.3 in the partition deed. He contended that he has been described as mutawalli of the Mosque in Ext.A1 itself. Ext.A1 deed provides that after death of the plaintiff, the mutawalliship to the Mosque shall be devolved on the seniormost male member of Puzhakkara Tarwad from time to time.
3. Plaint schedule wakf has been registered with the Wakf Board (in short, "the Board"). Register kept by the Board show that the rule of succession to the office of mutawalli is hereditary. 1st respondent/plaintiff is functioning as mutawalli eversince Ext.A1. He is residing 100 kms. away from the plaint schedule property. He felt it desirable, therefore, to have a committee consisting of persons of his choice and also members of Puzhakkara Tarwad for administering the wakf as per his instructions. Ultimately a committee was put in place to assist the plaintiff in administration of the Mosque. This practice was followed for decades. While so, K.P.Kunhabdulla and some of his henchmen began to create hindrance and tried to interfere in the administration of the wakf by the 1st respondent/plaintiff as mutawalli. Hence he was constrained to file a suit for injunction as O.S.No.194 of 1979 before the Munsiff's Court, Hosdurg. Defendants in that suit raised a contention that they constituted a committee and that committee was in administration of the Mosque. Later, the defendants abandoned their claims and, as requested by them, the suit was not prosecuted. Plaintiff always assumed the position as the president of the committee, constituted to help him. In the present committee also, 1st respondent/plaintiff is the president and he remains to be the mutawalli of the Mosque. On 15.07.2012 a meeting was held at the aegis of the 1st respondent/plaintiff to reconstitute the committee. Defendants 1 to 4 tried to disrupt the meeting and started holding out threats that they would not allow the plaintiff to administer the wakf. Hence the suit for injunction is filed.
4. Defendants 1 to 4 (revision petitioners and the 2nd respondent) filed a joint written statement contending thus: plaint schedule property is a public wakf. It is registered before the Board as Kammadam Muslim Juma-ath. Plaintiff was acting as de facto mutawalli for some time. He had surrendered his mutawalliship for ever to the members of the Juma-ath. Whatever be the stipulations in Ext.A1 deed with regard to the mode of succession to the office of mutawalli, they have lost relevancy, because the committee has become the mutawalli
