M INAITHULLA Vs. KARNATAKA BOARD OF WAKF

JUDGEMENT

(1.) though this petition is posted for orders, having regard to the fact that it can be dis posed of on a short ground, it is heard for final disposal.

(2.) in this writ petition under article 226of the Constitution of india, the petitioner has sought for quashing the order at annexure-a. Annexure-A is the order dated 4-10-1988 bearing No. Ktw 69 cmc dnu 87-88 passed by the Karnataka board of wakfs appointing one Sri janab mohammed tafhimulla maroof son of late m. Amjad ali as muthavalli of 'ibadathkhana-e-islam jamia maroop (lai masjid), at jumma masjid road (oph road), Bangalore-1 in the vacancy caused due to death of the notified muthavalli janab m. Amjad ali of the above said wakf institution. Under the same order one Sri janab badrul islam son of janab b. Iqbal ahmed saheb is appointed as guardian of the minor janab mohammed tafhimulla maroof to carry out the functions of the muthavalli till the minor muthavalli attains majority.

(3.) there is a controversy as to whether aminor can be appointed as muthavalli since the functions of muthavalli in the instant case also include religious functions. How ever, it is not necessary to go into this con troversy. It is not in dispute that even prior to registration of the wakf in question under the Provisions of the wakfs Act, 1954, there was a scheme framed by the district court in respect of the wakf in question, as per Annexure-B dated 14-2-1951. The scheme has not been set aside or modified even to this day. As long us the scheme is not set aside or modified, the scheme as framed by the dis trict court in respect of the waki in question will hold the field. All the parties/authorities concerned, including the wakf board are re quired to implement the scheme and act in accordance with the terms of the .scheme. Under the schema the mode of succession is not purely hereditary. After the death of the creator of the wakf the management of the wakf has to vest in the committee which has to be constituted in accordance with the terms mentioned in the scheme itself. Admittedly that has not been done. Under the impugned order the second respondent is appointed as muthavalli on the ground that he is the son of late m. Amjad ali and the third respondent is appointed as the guar dian of the minor - second respondent. Such an appointment of muthavalli is not permis sible under the Provisions of the scheme, therefore, it can be straight-away stated that the wakf board to that extent has acted contrary to law.