The main legal point established in the judgment is the lack of clear guidelines for the appointment of Mutawalli, leading to biased and arbitrary decisions by the Wakf Board, and the intervention of the High Court to render justice.

JUDGMENT

(PRAYER: W.A.(MD)No.437 of 2022: Writ Appeal filed under Clause XV of Letters Patent Act, against the order in W.P.(MD).No.3791 of 2022 dated 01.04.2022 and 06.04.2022.

W.P.(MD)No.10969 of 2022: Writ Petition filed under Article 226 of Constitution of India, praying to issue a writ or order or direction in the nature of a Writ of Certiorarified Mandamus, calling for the entire

and quash the same and consequential direction to the first respondent to recognise the petitioner as Mutawalli of Naina Mohammed Periya Kuthuba Pallivasal, Kadayanallur, Tenkasi District and handover the charge forthwith.)

Common Judgment:

R. Hemalatha, J.

1. This writ appeal has been filed against the order by a single Judge of this Court in W.P.(MD)No.3791 of 2022. There is also a writ petition in W.P.(MD)No.10969 of 2022 filed by the same appellant challenging the proceedings and consequent notification, dated 11.05.2022. W.A.(MD)No.437 of 2022 & W.P(MD)No.10969 of 2022

2. Since the matter in issue in both the writ appeal and writ petition pertains to the same facts, both are clubbed and a common order is passed.

3. The grandfather of the appellant Late.Janab M.S.Syed Masood Alim Sahib was the Mutawalli of three Wakfs namely, (1)Naina Mohammed Periya Kuthuba Pallivasal, (2)Syed Masood Nayagam Dharga and (3)Udhuman Labbai Sheik Thaika. He expired on 14.07.1984 leaving behind two sons namely, Late.O.M.S.Sheik Udhuman Alim Sahib (elder) and Late.O.M.S.Abdul Basith Alim Sahib (younger). Immediately, after the demise of the appellant's grandfather, his paternal uncle i.e., the elder son of his grandfather became the Mutawalli of all the three wakfs, which was objected to by the appellant's father, who claimed that, he also being the son of Late.M.S.Syed Masood Alim Sahib, was entitled by way of inheritance to become the Mutawalli vide his petition, dated 22.09.1984 to the Tamil Nadu Wakf Board. This petition was considered by the Board and vide their proceedings, dated 09.02.1985 decided that column 10 of the profoma reports for the three wakfs clearly stated that the rule of succession of the office of Mutawalli is hereditary according to customs. The Board further Labbai Ali Sheik Dharga would be considered later due to certain pending Civil Court proceedings and therefore, the office of Mutawalliship for the other two Wakfs namely, Naina Mohammed Periya Kuthuba Pallivasal and Syed Masood Nayagam Dharga only to be considered immediately. The Board decided to appoint Janab O.M.S.Abdul Basith Alim Sahib, the younger son as Mutawalli for Naina Mohammed Periya Kuthuba Pallivasal since he was holding a diploma from Madharsha of Lalpet and also a qualified Moulvi, who knew Quaran by heart. Further Janab O.M.S. Sheik Udhuman Labbai Alim Sahib was appointed as Mutawalli of Wakf known as Syed Masood Nayagam Dharga since he was already the correspondent of the High School under the name of Masood Thuluka High School, which came under the management of Syed Masood Nayagam Dharga. Both the brothers took charge as Mutawalli of the respective Wakfs. However, the elder brother Janab O.M.S.Sheik Udhuman Alim Sahib filed a writ petition in W.P.No.1575 of 1985 for setting aside the order of the Wakf Board dated 09.02.1985. The writ petition was allowed by an order, dated 31.07.1986 against which a writ appeal in W.A.No.848 of 1986 was filed by O.M.S.Sheik Abdul Bashith Alim Sahib (younger brother). In the said appeal, the First Bench of this Court vide an order, dated 27.07.1989 has held as follows:

“We have heard Mr.Habibulla Badsha, learned counsel for the appellant, Mr.R.Krishnamurthi for the contesting respondent-1 and Mr.Mustafa for the second respondent.

By consent, the following order is passed since the question to be decided in the case is whether the custom of hereditary succession by primogeniture would apply to the wakf in question. No doubt, under Sec.42 of the Wakf Act, the Wakf Board was of the view that on the death of the previous Muthawalli, ther