Treatment of trust as Wakf.

Srinivasan, J.

1. The plaintiff in the suit is the appellant before me. There is a long history to this litigation. The plaintiff is a society registered under the Societies Registration Act. It is formed by the members of Athar family who are Muslims. The administration of this society is governed by a scheme framed in a suit O.S.No. 63 of 1943 on the file of the Principal Subordinate Judge, Coimb-tore. The scheme was modified by this Court in A.S. No. 222 of 1948. It is seen from the provisions of the scheme that the membership of the society is limited to all the persons born in the Athar Family or having marriage connection in the Athar Family, or who have for generations past accepted the principles of the Athar Jamath, or the person and descendants of persons who have signed the Ekrarnama of 1920. It is made clear that only persons who have attained the age of majority can become members. The object of the society are set out in Clause 4 of the scheme and they are as follows:

To manage the Masjid and its affairs; To establish Schools and other Charitable institutions for secular and Religious Education; To help the needy among the Muhammadans such as Syeds, Sheikhs, Ulemas, Musafars, Etheems and the needy members of the Association. To do all things generally which add to the glory of the prophet and peace and prosperity among his subjects particularly the Members of the Jamath and to carry out such other and further purposes that the Association in its General Body Meeting by an absolute majority may from time to time provide.

Clause 5, which provides for management of the society declares that all the properties of the Jamath shall vest in the General Body of the Maha Sabai. The Maha Sabai is defined as all the male members of the Jamath in Meeting assembled, whose names are found in the roll of members, which shall be kept by the Executive Committee. It is not necessary at present to refer to the other provision of the scheme. They will be referred to whenever necessary.

2. On 3-6-1959, the Tamil Nadu Wakf Board published a notification under Section 5(1) of the Wakf Act, declaring the suit properties as wakf properties. Challenging the validity of the said notification, the plaintiff herein filed a suit O.S.No. 86 of 1960 on the file of the Sub Court, Coimbatore. The relief prayed was for declaration that the suit properties were not wakf properties, for cancellation of the notification issued by the Wakf Board. That suit was disposed of by Judgment dated 31-8-1962 and the same is marked as Ex. Al. The learned Subordinate Judge found that the plaintiff had not proved the suit properties to be its private properties and that the defendant had not proved that the properties were Wakf properties, excepting with reference to a mosque which was item No. 3 in the plaint schedule therein. There were two appeals in this as against the said judgment, one by the Wakf Board and the other by the society.

3. This Court set aside the findings given by the Subordinate Judge, but confirmed the decree cancelling the notification made by the Wakf Board. Some of the observations made by the Court in its judgment can be usefully set out herein:

The Wakf Board has preferred A.S. No. 588 of 1963 and the plaintiff association has preferred A.S. No. 609 of 1953. Both the appeals were heard by us for some time, and after a careful scrutiny of the records, we are inclined to take the view that neither side had placed relevant material before the Trial Court... The plaintiff has not filed the title deeds with regard to all the properties claimed to belong to the association. The plaintiff has also not filed the account books of the association which will throw material light on the question whether the properties are acquired and retained through-out as properties owned by the plaintiff association or whether at any point of time any of the properties were dedicated to the Wakf. It is unnecessary to dilate upon those aspects of the matter, a