Allowed

H.Syed Mathani v. N.M.Shahul Hameed

Madras HC24 Feb 2021CRP(MD)/748/2008

Case brief

AI extract

What is this about?

The Madras High Court set aside the Wakf Tribunal's order dismissing a petition seeking recognition of hereditary succession to the office of mutavalli. The Court held that the Wakf Act, 1995 governs succession rules, permitting hereditary succession if the Wakf deed prescribes it, rendering conflicting State law unapplicable.

What did the court decide?

The order of the Wakf Tribunal is set aside. The Wakf Original Petition is allowed granting prayers for declaration of hereditary succession and rights of descendants to be committee members, subject

H.Syed Mathani Vs N.M.Shahul Hameed — Pension and Retirement Benefits | Madras HC (2021)

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C.R.P. (MD) No.748 of 2008

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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Dated : 24.02.2021

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CORAM

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THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN

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C.R.P(MD)No.748 of 2008

1.Syed Mathani

2.H.Syed Mirza

3.T.Navvaz

4.T.Shahul Hameed

... Revision Petitioners/Petitioners Vs.

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1.N.M.Shahul Hameed

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2.Tamilnadu Wakf Board, represented by its Chief Executive Officer, NO.3, Santhome High Road, Chennai – 600 004.

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... Respondents/Respondents

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PRAYER:- Civil Revision Petition is filed under Article 227 of the Constitution of India against the fair and decreetal order dated 06.11.2006, made in WAKF O.P.No. 9 of 2003 on the file of the Wakf Tribunal (Sub Court) Tiruchirappalli.

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For Petitioners : Mrs.J.Maria Roseline

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For R2 : Mr.T.S.Mohamed Mohideen

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O R D E R

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This revision is directed against the order of the Wakf Tribunal in Wakf O.P.No.09 of 2003. The said Wakf O.P was filed by the petitioners herein seeking the following reliefs:

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a) that the succession to the office of muthawalli

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in respect of the west chinthamani mosque, Trichy is hereditary

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b) that the appointment of the muthawallis shall be from the descendants of Rustum Bi

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c) that the petitioners are qualified to be appointed as committee members to conduct the affairs of the mosque.

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d) that the deed executed by the wakf Rustum Bi on 03.08.1881 is a Wakf deed dealing with the line of succession for the office of Muthawalliship as also concerning the administration of the mosque and the wakf

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e) and, as such, the appointment of the petitioners as committee members is legal and valid f) for costs of petition

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According to the petitioners, they are descendants of the Wakif Rustum Bi, who has created a Wakf Deed dated 03.06.1881 dedicating certain properties to Chinthamani Mosque constructed by her. According to the petitioners, the said deed also prescribes the rule of succession to the office of mutavalli as hereditary. The proforma prepared by the Wakf Board also states that the rule of succession is hereditary. Contending that the first respondent herein, who is no more, was an encroacher and he had created the situation, where the legal heirs of the original Wakif Rustum Bi were prevented from being appointed as mutavallis to the Wakf, the petitioners came up with the above prayers.

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This application was resisted by the first respondent contending that the petitioners are acting against the interest of the Wakf and in view of the Shariat law, the office of muthawalli cannot devolve by hereditary succession. The Wakf Boad, which was cited as the second respondent, filed a counter stating that the petition filed without issuing notice under Section 89 of the Wakf Act, 1995, is not maintainable. The Wakf Board also stated that the petitioners have to establish the claim that the Wakf Deed dated 03.06.1881 prescribes hereditary succession.

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Pending Wakf O.P.No.09 of 2003, an Interlocutory Application was also filed by the first petitioner challenging the order of the Wakf Board approving the lease of the property in favour of one M.A.Sathakathulla instead of Selvaraj, as recommended by him. The Wakf O.P and the application in I.A.No.54 of 2006 were taken up together for disposal.

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The first petitioner examined himself as P.W.1 and 4 other witnesses were examined on their side. Exs.A1 to A9 were marked. On the side of the respondents, the first respondent N.M.Shahul Hameed was examined as R.W.1 and Exs.B1 to B.8 were marked. In I.A.No. 54 of 2006, Exs.B1 and B2 were marked.

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The Wakf Tribunal, upon a consideration of the evidence on record, concluded that though the Wakf Deed provides for hereditary succession to the office of mutavalli, the petitioners have not proved that such hereditary succession was in fact adopted in appointment of mutavalli to the Wakf in question. The Wakf Tribunal also concluded that the petitioners have acted against the interest of the Wakf inasmuch as they have claimed title to some of the Wakf properties. The Tribunal also found that in view of the Shariat Law Amendment Act, 1949 and the judgment of this Court reported in 1992 (2) LW 685 (Syed Ansamddin Vs. the Tamil Nadu Wakf Board by its Secretary and 6 others ), there cannot be hereditary succession to https://hcservices.ecourts.gov.in/hcservices/

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the office of mutavalli. On the aforesaid conclusion, the Wakf Tribunal dismissed the Wakf Original Petition as well as the application in I.A.No.54 of 2006.

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In so far as I.A.No.54 of 2006 is concerned, the Wakf Tribunal found that the action of the Wakf Board in approving the lease in favour of M.A.Sathakathulla is valid since the period of appointment of the petitioners had expired and it was open to the Executive Officer to sanction the lease in favour of M.A.Sathakathulla.

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8.I have heard Mrs.J.Maria Roselin, learned counsel appearing for the petitioners and Mr. T.S.Mohamed Mohideen, learned counsel appearing for the Wakf Board/the second respondent. The first respondent having died this Court had by order dated 25.11.2015 held that it is not necessary for the petitioners to implead the legal heirs of the first respondent.

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Mrs.J.Maria Roseline, learned counsel appearing for the petitioners would vehemently contend that the Wakf Tribunal was not right in dismissing the Original Petition, which seeks the prayer for declaration regarding the nature of succession to the office of mutavalli to the Wakf in question. According to her, the Wakf Tribunal should have decided the nature of succession based on the Wakf deed and the proforma. Further, she would contend that whether the petitioners are qualified to be mutavallis or not should not have been gone into in this proceeding and the Wakf Tribunal was not justified in rejecting the entire claim on the ground that the petitioners are not qualified to be appointed as mutavallis. She would also fault the Wakf Tribunal for having come to the conclusion that the petitioners have asserted independent title over the property.

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Mr.Mohamed Mohideen, learned counsel for the second respondent/Wakf Board would fairly submit that the Wakf Board will have to go by the Wakf Deed and the proforma in deciding as to who is qualified and what is the mode of succession to the office of mutavalli. The learned counsel would further point out that the petitioners have claimed independent title for themselves for certain properties, which are shown as wakf properties in the proforma. Therefore, they are disqualified and their prayer has not been granted.

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I have considered the rival submissions.

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The question as to whether succession to the office of mutavalli could be hereditary or not is no longer dis integra. Ofcourse, in Syed Ansamddin Vs. the Tamil Nadu Wakf Board by the Secretary and 6 others (in 1992(2) LW 685), the Hon'ble Mr. Justice ABDUL HADI, has held that there cannot be hereditary succession to

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the office of mutavalli as it is unknown to the Shariat Law in view of the Muslim Personal Law (Shariat) of the Tamilnadu Amendment Act, 18/1949. The said judgment is prior to the introduction of the Wakf Act, 1995. The provisions of Wakf Act, 1995, particularly, Sections 3, 37 and 63 recognize hereditary succession, if the Wakf deed provides for such hereditary succession. Law is now fairly well settled that the Wakf Board will have to go by the directions in the Wakf deed or the customs and practice of the Wakf in appointment of mutavallis.

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The wakf deed in the case on hand provides as follows:

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“nkw;go jh;kj;ij ehd; cs;s tiuapy; ehDk; vdf;F gpwF vd;Dila thhpRfSk; elj;jp tuntz;oaJ. nkw;go epyk; nkw;go k$Pj;Jf;nf brhe;jk; jtpu ehdhtJ vd; thhpR Kjyhdth;fshtJ bthj;jp nghf;fpak; fpuak; tpf;fpuak; bra;af; TlhJ. nkw;go bthj;jp nghf;fpak; fpuak; tpf;fpuak; bra;jhy; bry;yj;jf;fjpy;iy ”

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The proforma of the Wakf reads as follows:

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The Rule	of succession to	The rule of succession in the
the office	of the Muthavalli	post of Muthavalli is a
and wheth	er it is under	hereditary one. It is a custom
Wakf-deed usage.	or by custom or by	adopted in these parts.

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Pointing out the above recitals in the document as well as the contents of the proforma, the learned counsel for the petitioners would contend that the Wakf Tribunal was not justified in rejecting the claim of the petitioners for a declaration that the office of mutavalli in the case on hand devolves hereditarily.

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The learned counsel for the petitioners relied upon the judgment of the Hon'ble Supreme Court in Aliyathammuda Beethathebiyyappura Pookoya and another dated 01.08.2019, wherein the Hon'ble Supreme Court has also recognized hereditary succession to the office of mutavalli.

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Faulting the Wakf Tribunal for placing reliance on the judgment reported in Syed Ansamddin Vs. the Tamil Nadu Wakf Board by the Secretary and 6 others (1992(2) LW 685), the learned counsel would rely upon the judgment of mine in C.R.P(MD)No.1533 of 2007 dated 07.01.2020, wherein I had considered the impact of the introduction of the Wakf Act, 1995 and the consequent binding nature of the judgment in Syed Ansamddin Vs. the Tamil Nadu Wakf Board by the Secretary and 6 others (1992(2) LW 685) . After noticing the change in law introduced by the Wakf Act, 1995, I had concluded that

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the judgment in 1992(2) LW 685 is no longer good law in view of the introduction of the Wakf Act, 1995. The Muslim Personal Law(Shariat) Tamilnadu Amendment Act, 1949 is a State law enacted by the provincial Government. After introduction of the Constitution of India, Article 254 would apply wherever there is a conflict between the State law and the Central law. In terms of Article 254(1) of the Constitution of India, wherever there is conflict between the Central law and the State law, the Central law alone would prevail. Only when the State law is reserved for assent of the President and if such assent is obtained, the State law would have priority in that particular State. The question as to what will be the position, if the existing State law conflicts with the subsequently enacted Central law was considered by the Hon'ble Supreme Court in 1995 (4) SCC 718 (PT Rishikesh and another Vs. Salma Begum), wherein the Hon'ble Supreme Court had pointed out that in such cases, unless the State law is re-enacted by the State legislature and reserved for assent of the President, the Central law would prevail.

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In view of the above position of law declared, I do not think the Tribunal was right in concluding that there cannot be a hereditary succession to the office of mutavalli. The interpretation placed by the Tribunal on the language of Wakf Deed is also not very convincing. The Tribunal had expected the Wakif to write the term 'mutavalli' in the Wakf deed. The relevant portion of the Wakf deed has been extracted above, which shows that the Wakif has reserved the right of administration of the wakf properties in herself for her life time. It also prescribes the line of succession and mutavalli is a person appointed to administer the Wakf properties. Therefore, the Wakf Tribunal was not justified in concluding that because of the Wakif has not used the term 'mutavalli' in the Wakf deed, it cannot be taken that she had not reserved the office of mutavalli to herself for life time and prescribed the mode of succession also.

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In view of the above, the order of the Wakf Tribunal requires interference and the same is set aside. The Wakf Original Petition is allowed granting prayers (a), (b) and (d). In respect of prayers (c) and (e), Wakf Original Petition will stand dismissed. It is for the Wakf Board to decide as to whether the petitioners or any other descendants of the original wakif Rustum Bi are qualified to be appointed as mutavallis.

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The Wakf Board shall not be influenced by any of the observations made by the Tribunal in the order impugned in this revision or by me in this order in deciding the question as to whether the petitioners are entitled to be appointed as mutavallis.

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