The main legal point established in the judgment is that Muslim Law does not recognize hereditary muthavalliship and the court has no power to appoint any body as hereditary muthavalli.

1. This appeal by the plaintiff is against the judgment and decree in O.S. 4272/77 on the file of First Asst. City Civil Judge, Madras. The suit is for declaration that the order dated 13.5.1976 of the first defendant-first respondent Wakf Board in W.A. No. 17/71, on its file, is not binding on the plaintiff and for appointment of the plaintiff as hereditary muthavalli of the suit Wakf. The court below has granted first of the above said two prayers, but negatived the next. The court below has negatived the above said prayer on the ground that Muslim Law does not recognise hereditary muthavalliship. Hence, the plaintiff has preferred this appeal seeking the later relief, namely, the appointment of himself as hereditary muthavlli.

2. I must first of all point out that the prayer for “appointment” of the plaintiff as “hereditary muthavalli” is not maintainable at all. The court has no power to appoint any body as hereditary muthavalli though it has power to appoint a muthavalli under certain circumstances. (Vide S. 204(2)(d) of Mullas Principles of Mohamedan Law). If the prayer is for declaration that the plaintiff is hereditary muthavalli, such a declaration no doubt can be granted by the court. By such a declaration, the court only puts its seal of its approval of the plaintiffs pre-existing right of hereditary muthavalliship. By appointment, it confers muthavalliship for the first time on the plaintiff. The court has no such power of conferring hereditary muthavalliship on any person.

3. Further, the Muslim Law does not recognize any right of inheritance to the office of Muthavalli (Vide S. 206 in the Principles of Mohamedan Law, by Mulla 18th Edition). No doubt, the very same section in the above text book says that the office of Muthavalliship may become hereditary by custom in which case the custom should be followed. For this proposition, no doubt, Mohammed Soleman v. Tasaddug Hassan 1, Mohomed Haji Haroon Kadwani In re 2, Phatmabi v. Haji Musa 3 and other decisions have quoted as authorities. But, so far as Tamil Nadu is concerned, this law based on custom cannot be applied, in view of the amendment made by the legislature of the then State of Madras to the Central Enactment, Shariat Act, 1937, by Madras Act 18/49. While the Central Enactment Shariat Act, abolished customary law on several matters, it retained the customary law so far as “charities and charitable institutions and charitable and religious endowments”. But, by the above said Madras amendment to charities and charitable institutions and charitable and religious endowments, only the Muslim personal law is made applicable and not any custom or usage to the contrary. This is clear from the above said amendment introduced to S. 2 of the Shariat Act, 1937. The Supreme Court also in Mohammed Yonus v. Syedunnissa 4 has held so, no doubt in a different context, namely whether females can be muthavallis of a Darga, as per custom or usage.

4. In view of the above said legal position, the arguments of the learned counsel for the appellant, based on the passage in Ex. No. A5, the proforma report of the suit wakf, that the rule of succession to this wakf is hereditary by custom”, cannot be accepted.

5. The learned counsel for the appellant also argued that as per Ex. A2 dated 12.11.21, the appellants father was made the hereditary muthavalli of the suit wakf and that hence he should be recognised as hereditary muthavalli of the suit wakf and that hence he should be recognised as hereditary muthavalli of the suit wakf, consequent upon the death of his father on 1963. This argument also has no merits, for the following reasons: Ex. A2 is a document executed by two persons, one American Sahib and Syed Usman Sahib and the document says that it is Masoodhi Dharmakartha Athikara Pathiram. It is well known that Dharmakartha means the person who managed the religious institution. No doubt, from a reading of the recitals of the said document, it is clear that those two