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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE SRINIVASAN & THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
The Executive Committee of the Masjid-E. Farkhunda, rep. by its Muthavalli Haji Mohammed Gani & Others
Versus
P.A.G. Hussain Moulana & Others
O.S.A. No. 156 of 1996
Decided On :Decided On : 01-08-1996
WAKF - APPOINTMENT OF TRUSTEE - HEREDITARY TRUSTEE - PROOF OF RELATIONSHIP - NECESSITY OF PERMISSION FROM WAKF BOARD - LOCUS STANDI OF APPLICANT - APPLICABILITY OF SCHEME DECREE - JURISDICTION OF CIVIL COURT - RELEVANCE OF WAKFS ACT - INTERPRETATION OF SECTIONS 55 AND 56.
Fact of the Case:
The appellant challenged an order appointing the 1st respondent as the trustee of a Wakf known as “Saidani Bibi and Masthan Owlia Durga and Makan Trust.” The management of the trust was governed by a scheme framed in 1954, which provided for a hereditary trustee from the family of the 1st defendant in the suit and two other trustees appointed by the court.
Finding of the Court:
The court found that the 1st respondent had sufficiently proved his relationship with the 1st defendant in the suit and was entitled to be appointed as the hereditary trustee. The court also held that the 1st respondent had the locus standi to file the application for appointment as trustee, as he was claiming to be an heir of the 1st defendant. The court further held that the Wakf Board's permission was not required for the application, as it was not a suit against the Board. The court also held that the provisions of the Scheme decree were still in force and were not affected by the notification of the Trust as a Wakf under the Wakfs Act.
Issues: 1. Whether the 1st respondent had sufficiently proved his relationship with the 1st defendant in the suit to be appointed as the hereditary trustee. 2. Whether the 1st respondent had the locus standi to file the application for appointment as trustee. 3. Whether the permission of the Wakf Board was required for the application. 4. Whether the provisions of the Scheme decree were still in force and were not affected by the notification of the Trust as a Wakf under the Wakfs Act.
Ratio Decidendi: 1. The court held that the 1st respondent had sufficiently proved his relationship with the 1st defendant in the suit by virtue of the specific averments made in his affidavit, which were not specifically disputed by the appellants. 2. The court held that the 1st respondent had the locus standi to file the application for appointment as trustee, as he was claiming to be an heir of the 1st defendant and was seeking recognition of his hereditary trusteeship. 3. The court held that the permission of the Wakf Board was not required for the application, as it was not a suit against the Board, but a dispute between the 1st respondent and the appellants over the management of the trust. 4. The court held that the provisions of the Scheme decree were still in force and were not affected by the notification of the Trust as a Wakf under the Wakfs Act, as the Wakf Board's general superintendence powers did not extend to nullifying or ignoring a scheme decree passed by a civil court.
Final Decision: The court dismissed the appeal and upheld the order appointing the 1st respondent as the trustee of the Wakf.
SRINIVASAN, J.
1. This appeal is against an order passed by a single Judge of this Court in Application No. 2230 of 1996 on 10.7.1996, appointing the 1st respondent herein as the trustee of the Wakf known as “Saidani Bibi and Masthan Owlia Durga and Makan Trust.” The Management of the trust is governed by a scheme framed in CS No. 43 of 1951 on 27.4.1954. It is provided in Clause 4 of the said Scheme that the Board of Trustees shall consist of three members and it shall be constituted as follows:
I. One Member to be the hereditary member of the defendants family and after them one of their male issues desending either through sons or daughters to be appointed by this court for life, on the principle of the most eligible amongst them. On the extinction of the line of these two brothers, this hereditary trusteeship shall stand converted into an ordinary one and the trustee shall be appointed by the court.
ii. The other two trustees shall be appointed by the court and they shall hold office for a period of 5 years.
2. The 1st defendant in the suit was one P.A. Gulam Dastagit Rowther. The 1st respondent in this appeal filed Application No. 2230 of 1996, which, according to learned counsel for the applicants, was numbered earlier as Application No. 1637 of 1995. It is pointed out by learned counsel for the appellants that by mistake the Registry has duplicated the numbering and the same application, which had the number 1637 of 1995, was later numbered as No. 2230 of 1996. Even so, the order of the learned Judge has been made only in Application No. 2230 of 1996 and this appeal also refers only to that number.
3. In the said application, the 1st respondent herein claimed that he is the only son of the 1st defendant in C.S. No. 43 of 1951 and thereby entitled to be appointed as the hereditary trustee. The application was opposed by the appellants herein. In the counter affidavit, the appellants stated that the burden was on the 1st respondent herein to prove his relationship with the 1st defendant in the suit. It was also contended by the appellants that the application was not maintainable, as the permission of the Wakf Board had not been obtained. It was also contended that the applicant/1st respondent herein was not a trustee and therefore, he had no locus standi to file the application. In the additional counter affidavit filed on behalf of the appellants, similar contentions were reiterated.
4. The learned Judge, who heard the application, passed an order rejecting the contentions of the appellants and appointing the 1st respondent herein as trustee. It is the said order that is challenged in this appeal.
5. We are unable to accept the contention of the appellants that the 1st respondent has failed to prove his relationship with the 1st defendant in the suit. When a specific averment has been made by the 1st respondent in his affidavit filed in support of the application for the appointment of hereditary trustee, the appellants herein did not have the courage to dispute the same. They did not categorically or specifically say that the 1st respondent herein was not in any way related to the 1st defendant in the suit or that he was not the son of the 1st defendant. On the other hand, a vague allegation was made in the counter as well as additional counter affidavit, that it was for the 1st respondent herein to prove the relationship with the 1st defendant in the suit. The learned Judge has rightly rejected the said contention after observing that they have not come forward with a specific case on the said aspect of the matter.
6. The second contention urged by learned counsel for the appellants is that it is necessary for the 1st respondent to have obtained the permission of the Wakf Board before filing the application. Our attention is drawn to S. 56 of the Wakfs Act, 1954. Under that section, no suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of that Act or of an
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