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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
C. SARAVANAN, J.
O.M.A. Udhuman Mydeen - Appellant
Versus
The Chief Executive Officer, The Tamil Nadu Wakf Board, Chennai & Others - Respondent
W.P.(MD) No. 3791 of 2022 & W.M.P. (MD) Nos. 3298 & 3299 of 2022
Decided On : 01-04-2022
Writ Petition - Wakf Board Dispute - Sec. 63 of Wakf Act, 1995 - The court dismissed the Writ Petition challenging the appointment of Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal. The dispute arose after the death of the Mutawalli, leading to a power struggle between the sons. The court held that the appointment of Mutawalli is not by rule of primogenitor and must be based on the person's competence. The petitioner's continuance as Mutawalli is temporary, subject to the final outcome of the dispute. The Wakf Board is directed to complete the enquiry and appoint a competent Mutawalli within three months.
Fact of the Case:
The dispute arose after the death of the Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal, leading to a power struggle between the sons. The petitioner's father was appointed as Mutawalli, leading to a legal battle with the third respondent's father. The dispute culminated in a Writ Petition challenging the appointment of Mutawalli.
Finding of the Court:
The court held that the appointment of Mutawalli is not by rule of primogenitor and must be based on the person's competence. The petitioner's continuance as Mutawalli is temporary, subject to the final outcome of the dispute. The Wakf Board is directed to complete the enquiry and appoint a competent Mutawalli within three months.
Issues: The main issue was whether the third respondent was entitled to be appointed as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal, and whether the petitioner's continuance as Mutawalli was valid.
Ratio Decidendi: The appointment of Mutawalli is not by rule of primogenitor and must be based on the person's competence. The petitioner's continuance as Mutawalli is temporary, subject to the final outcome of the dispute. The Wakf Board is directed to complete the enquiry and appoint a competent Mutawalli within three months.
Final Decision: The Writ Petition was dismissed, and the Wakf Board was directed to complete the enquiry and appoint a competent Mutawalli within three months.
JUDGMENT
(Prayer: Writ Petition filed for issuance of a Writ of Certiorari, to call for the entire records pertaining to the impugned notice passed by the first respondent vide her proceedings Ref.No.R.C.No.6211/12/B1/TNV, dated 24.02.2022 and quash the same.)
1. In this Writ Petition, the petitioner O.M.A. Udhuman Mydeen has challenged the impugned notice dated 24.02.2022 of the first respondent Chief Executive Officer, Tamil Nadu Wakf Board. By the impugned notice dated 24.02.2022, the petitioner herein and others including the third respondent herein O.M.S.Hasan Magdhoom Alim have been called to appear before the first respondent Chief Executive Officer, Tamil Nadu Wakf Board with all relevant documents in their possession, failing which, the matter will be decided in their absence.
2. The dispute in this Writ Petition pertains to Naina Mohammed Periya Kuthuba Pallivasal. The petitioner's and the third respondent's paternal grandfather namely, O.M.S.Syed Masood Alim Sahib was the Hereditary Mutawalli of three Wakfs, namely (i) Syed Masood Nayagam Darga, (ii) Uduman Labbai Shiek Taikkal and (iii) Naina Mohammed Periya Kuthuba Pallivasal. Present dispute pertains to Naina Mohammed Periya Kuthuba Pallivasal. After his death in 1985, a dispute arose as to who would be the Mutawalli of the respective Wakfs.
3. The third respondent's father namely, O.M.S.Sheik Udhuman Alim Sahib (father of the third respondent) the elder son of O.M.S.Syed Masood Alim Sahib was made as Mutawalli of Syed Masood Nayagam Darga and Uduman Labbai Shiek Taikkal, whereas the petitioner's father namely, O.M.S.Abdul Basith Alim Sahib (father of the petitioner) the younger son of O.M.S.Syed Masood Alim Sahib was made as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal by the Wakf Board, by its order dated 09.02.1985. The petitioner's father namely, O.M.S.Abdul Basith Alim Sahib passed away on 22.05.2012 and the third respondent’s father namely, O.M.S.Sheik Udhuman Alim Sahib passed away in 2014.
4. After the younger son of O.M.S.Syed Masood Alim Sahib namely, O.M.S.Abdul Basith Alim Sahib (the father of the petitioner) was appointed as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal, there was a power struggle between the two brothers who are the sons of O.M.S.Syed Masood Alim Sahib namely, O.M.S.Sheik Udhuman Alim Sahib and O.M.S.Abdul Basith Alim Sahib.
5. As per the proforma of the Naina Mohammed Periya Kuthuba Pallivasal, the succession to the office of the Mutawalli is the Hereditary according to Custom. Similarly, succession to the office of the Syed Masood Nayagam Darga is also Hereditary according to the Custom.
6. The third respondent’s father namely, O.M.S.Sheik Udhuman Alim Sahib therefore filed a petition before the Wakf Board, Chennai in Rc.No.3886/C6/TNV/83 against his younger brother O.M.S.Abdul Basith Alim Sahib (the father of the petitioner), to set aside the order of the Wakf Board pending appointing the petitioner's father O.M.S.Abdul Basith Alim Sahib as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal and to approve the third respondent’s father O.M.S.Sheik Udhuman Alim Sahib as sole Hereditary Mutawalliship of the Wakfs.
7. The Wakf Board by its proceedings dated 09.02.1985 appointed the petitioner's father O.M.S.Abdul Basith Alim Sahib as Mutawalli of the Naina Mohammed Periya Kuthuba Pallivasal and the third respondent’s father O.M.S.Sheik Udhuman Alim Sahib as Mutawalli of the Syed Masood Nayagam Darga. The operative portion of the order reads as under:-
As regard the claim to the office of the Muthawalliship for the other two Wakfs namely Nainar Mohamed Periya Kuthba Pallivasal and Syed Masood Nayagam Durgah, we proceed to consider the respective claims of the two brothers. Though the rule of succession is hereditary according to custom, it is not the case that the eldest son O.M.S.Sheik Uduman Alim Sahib that to is entitled to be appointed as Muthawalli for all the three wakfs is not sustainable. The younger brother Add
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