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1997 Supreme(Mad) 947
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE J. KANAKARAJ AND THE HONOURABLE MR. JUSTICE K. NATARAJAN
Syed Moinuddin - Appellant
Versus
Tamil Nadu Wakf Board, Madras and Others - Respondents
W. As. Nos. 369 and 370 of 1992
Decided On : 01 September 1997
Decree in C. S. No. 116 of 1909 was not a scheme decree and therefore wakf board had jurisdiction to exercise its powers under the Act.
Headnote:
WAKF - DURGA - SCHEME DECREE - APPOINTMENT OF MUTAWALLI - JURISDICTION OF WAKF BOARD - C. S. NO. 116 OF 1909 - DECREE NOT A SCHEME DECREE - WAKF BOARD HAS JURISDICTION TO APPOINT MUTAWALLI - DEFINITION OF MUTAWALLI IN WAKF ACT INCLUDES NAIB MUTAWALLI, KHADIM, MUJAWAR, SAJJADANASHIN, AMIN AND OTHER PERSONS APPOINTED BY MUTAWALLI TO PERFORM DUTIES OF MUTAWALLI - MUJAWAR IS CARE-TAKER OF DURGA AND DISCHARGES DUTIES OF SWEEPER OF PREMISES - WAKF BOARD CAN APPOINT MUTAWALLI NOTWITHSTANDING EXISTENCE OF DECREE IN C. S. NO. 116 OF 1909.
Fact of the Case:
Dispute related to Durga known as Saint Hazarath Syed Moosa Sha Khaderi Durga located at Mount Road, Madras. Writ Petition No. 5315 of 1991 was for quashing order of wakf board appointing third respondent as Mutawalli of Durga. Writ Petition No. 6401 of 1987 was in respect of portion of order of wakf board holding that decree in C. S. No. 116 of 1909 was not a scheme decree and that wakf board had jurisdiction to appoint and remove mutawalli. Common order disposed of both writ petitions.
Finding of the Court:
Decree in C. S. No. 116 of 1909 was not a scheme decree and therefore wakf board had jurisdiction to exercise its powers under the Act. Wakf board had exercised its powers by appointing Syed Amiruddin as mutawalli in 1963. Syed Amiruddin functioned as mutawalli till 1987 without any challenge. Existence of mujawars or turn trustees along with mutawalli appointed by wakf board could not be objected to by any person genuinely interested in wakf.
Issues: Whether decree in C. S. No. 116 of 1909 was a scheme decree and whether wakf board had jurisdiction to appoint and remove mutawalli.
Ratio Decidendi: Decree in C. S. No. 116 of 1909 was not a scheme decree as it did not comply with requirements of Section 92 of Code of Civil Procedure. Wakf board had wide and comprehensive powers under Wakf Act, 1954 to control activities of wakf. Wakf board could remove mutawalli who acted in contravention of Section 43 of Wakf Act, 1954. Wakf board had power to appoint fresh mutawalli in case of vacancy. Wakf board should have regard to terms of decree in civil court while taking action under Wakf Act, 1954. Judgments of M. M. Ismail, J and Satar Syed, J in Palani Muslim Dharmaparipalana Sangam v. Wakf Board and A. M. Mohideen Packker v. T. N. Wakf Board were restricted to scheme decrees framed under Section 92 of Code of Civil Procedure, where wakf board or its predecessors was also a party to suit. Wakf board had jurisdiction to appoint mutawalli notwithstanding existence of decree in C. S. No. 116 of 1909.
Final Decision: Writ Appeals allowed. Writ Petitions Nos. 5315 of 1991 and 6401 of 1987 dismissed. No order as to costs.
J. KANAKARAJ, J.
The dispute in these two writ appeals relates to the Durga known as Saint Hazarath Syed Moosa Sha Khaderi Durga located at Mount Road, Madras. By a common order, dated 28-2-1992, Bakthavatsalam, J. disposed of two writ petitions, viz., W. P. Nos. 5315 of 1991 and 6401 of 1987. Writ Petition No. 5315 of 1991 was for the issue of a writ of certiorari to quash the order of the wakf board, dated 10-1-1991, appointing the third respondent therein by name Syed Moinuddin as Mutawalli of the said Durga. Writ Petition No. 6401 of 1987 is in respect of that portion of the order of the wakf board, dated 8-3-1987 holding that the decree of the High Court in C. S. No. 116 of 1909 is not a scheme decree and that therefore, the wakf board has jurisdiction to appoint and remove the mutawalli. In effect, the prayers in both the writ petitions related to the effect of the decree in C. S. No. 116 of 1909 and whether the wakf board was deprived of its powers to remove the mutawalli and appoint a fresh mutawalli. The writ Appeals are directed against the said common Judgment in the two writ petitions.
2. For the purpose of convenience, we will refer to the parties by their names to avoid confusion, Saint Hazarath Syed Moosa Sha Khaderi is said to have been buried in Survey No. 7/1. One Syed Aminuddin is said to be the founder of the Durga and he has acting as the mujawar. After the death of Syed Aminuddin, his two sons Syed Ismain and Syed Gulam Dastagir were managing the Durga and were performing the 'fathibes' of the Saint jointly. Syed Ismail is said to have died in or about 1902 and after his death his brother, Syed Gulam Dastagir is said to have been in management of the Durga. Syed Gulam Dastagir died in or about 1905. Thereafter, disputes arose between the widow and children of Syed Ismail and the widow and children of Syed Gulam Destagir with reference to the management of the Durga and the sharing of the emoluments. The children of Syed Ismail and their mother filed a suit in C. S. No. 116 of 1909 against the children of Syed Gulam Dastagir and their mother in this Court. The prayer in the said suit related to : (i) a declaration that both the parties are entitled to perform the duties of mujawar of the Durga in turns; (ii) Both the parties are entitled to collect and receive the offerings, gifts and other emoluments and appropriate the hundial collections from the Durga; (iii) that a scheme may be settled as between the parties; (iv) for rendering accounts and (v) for appointment of a Receiver pending disposal of the suit and for certain other consequential reliefs. The said suit was decreed on 11-8-1910. Since the terms of the decree are important for the purpose of a decision in these writ appeals, we would like to extract below the decree in full :
"(1) That the first plaintiff and the first and second defendants herein are entitled to perform the duties of Mujawar (Superintendent) of the Durga of the Saint Hazarath Syed Khadiri situate in Mount Road, Madras in turns;
(2) That the first plaintiff and the first and second defendants herein are entitled to collect and receive the offerings, gifts and other emoluments of the said Durga and as the collections of the hundi box in the said Durga and apportion the same in two equal moities and that Syed Moose Sahib the first plaintiff is entitled to one half and Syed Gaffar Sahib and Syed Moideen Sahib the first and second defendants are entitled to the other half of the said collections, offerings, gifts and other emoluments;
(3) That the first plaintiff herein is entitled to rupees fifteen (Rs. 15/-) a month net as and for his share of the mesne profits of the said Durga, since 15th day of May, 1907 to the end of October, 1909 less rupees ninety five annas twelve and paise five (Rs. 95,12.5) which was paid by the defendants to the plaintiffs in respect of this period and it is ordered and decreed as follows :
(4) That Mr. Mahomed Ibrahim Sahib the Receiver appointed
