AKBAR Vs. K MOHAMED ANSAR

JUDGEMENT

(1.) THIS second appeal arises out of the judgment and decree rendered in A.S. No. 57 of 1980 by the IV Additional Judge, City Civil Court at Madras on 22-12-80, which in turn arises out of the judgment and decree rendered in O.S. No. 1476 of 1976 on the file of VIII Assistant Judge, City Civil Court at Madras on 16-6-1979. The plaintiff is the appellant herein. The first respondent is the father of the plaintiff/appellant. Second defendant/second respondent is the secretary of the mosque. Third defendant/third respondent is the mosque, and 4th defendant/4th respondent is the Tamil Nadu Wakf Board. The plaintiff filed the suit for declaration that the release deed dated 3-6-1970 executed by the first defendant in favour of the third defendant is illegal and not binding on him and for possession of the suit property from defendants 2 and 3.

(2.) ACCORDING to the plaintiff/appellant, the suit property which is the superstructure bearing Door No. 15, Velayutham Lane, Madras originally belonged to one Kareem Sahib, the paternal grandfather of the plaintiff/appellant and he executed a deed of settlement called the wakf deed on 6-3-1933 under which the rental income of the suit property was directed to be collected by the brother of the settlor by name Yaseen Sahib to be utilised for the payment of arrears of property tax relating to that property for a period of four years and the balance to be utilised towards the repairs of the house of the settlor situate in Angappa Naicken Street, George Town, and if anything remained after meeting those expenses to utilise the same for providing kanji to muslims on Ramzon day in the third defendant mosque.

(3.) THE learned counsel appearing for the appellant submitted as under: THE release deed executed by the first defendant in favour of the defendants 2 and 3 is invalid since the muthavallisbip given to him by the settlement deed cannot be relinquished except to the persons next in the line of succession. THE release deed was executed in favour of the third defendant after obtaining a sum of Rs. 4,000 as such the relinquishment is not valid in law. THE 4th defendant cannot take over all the management of the wakf properties in derogation of the terms of the settlement deed Ex. A1, and contrary to the founder's direction. THErefore, the said release deed is not binding upon the plaintiff/appellant Even according to Ex. A1, the first defendant is prevented from alienation or relinquishing his interest in the trust properties given under the settlement deed Ex A1. When the father of the appellant expressed his inability to manage the trust properties, then the right to manage the trust properties is actually vested in the hands of the appellant as per the terms of the settlement deed. THErefore, by ignoring the terms of the settlement deed, the 4th defendant wakf board cannot direct the third defendant to take over all management of the trust properties. Since the plaintiff is the next male member in the family of the settlor, when his father refused to take administration of the wakf properties, by virtue of the terms of the settlement deed, the appellant will automatically become the administrator of the estate. THE 4th defendant's order to the third defendant to take over the management of the trust properties from the hands of the first defendant will not be binding upon the appellant. When the first defendant was unable to carry out the office of the administrator, the next male person would be the administrator. Under Wakf Act, 1954. No clause empowers the board to transfer the office of muthavalli from the first defendant to the third defendant. In view of the provisions of Ss. 15(2)(j) and 42, ignoring the terms of the settlement deed, the management of the wakf properties cannot be handed over to the third defendant. THE learned counsel for the appellant drew a similarity between the trust and the Wakf. In order to support his contention he would rely upon the decisions reported in the case of Venkatesa Archagar and another v. E. Ekambara Archagar and others 1 , in the case of Mt. Aziza Khatun and others v. State of West Bengal and others 2 , and in the case of Khalil Ahmed Khan v. Siddiq Ahmad Khan and others 3 . THE learned counsel for the appellant also pointed out that S. 15 of the Wakf Act deals with the section for the sale of the property and it does not deal with transfer of muthavalliship. THErefore, he submitted that the approach of the courts below are misdirected and the appellant is entitled to a decree as prayed for. On the other hand, the learned counsel appearing for the respondents 2 and 3 contended that the right of muthavalliship was not transferred and there is no such transfer as alleged, Rs. 4000 was paid as a loan and not as consideration. According to the learned counsel, it is only the management of collecting the rent and feeding the poor alone was transferred. THE learned counsel submitted that when the father is alive, his son the appellant cannot claim his right as per the settlement deed. According to the learned counsel, the mosque came into the picture by virtue of the order passed by the wakf board. THE plaintiff/appellant at the time when the release deed was executed was a minor and therefore the wakf board chose the third defendant for the management of the wakf property since there are irregularities committed by the first defendant. In fact, the first defendant attempted to mortgage the wakf property, hence the board took necessary steps to safeguard the wakf property.