MOHAMMED MOHIDEEN Vs. STATE WAKF BOARD

JUDGEMENT

(1.) ONE Hakim Mohamed Yusuf Sahib, father of the petitioner and respondents 2 to 4, who was carrying on his calling in medicine under the name of "mohamadia vaidya Salai" at Porto Novo, executed a deed of wakf On 1st April 1941, in respect of some of his properties and medicinal business. By that deed, it is stated, he directed that his sons should continue the business under the name of "hakim mohamed Yusuf Mohamadia Vaidya Salai", and the net income therefrom applied to certain purposes. Under the terms of the deed, the petitioner, he being the eldest son, was to be the mutuavalli, and, after him, each of his brothers in the order of seniority, and, thereafter, their relative children. According to the petitioner, on his father's death in 1942, he succeeded to the post of mutavalli in 1943, and has, since then, been holding the office and administering the wakf and its properties. The second respondent (the second son of the late Hakim) applied to the State Wakf board under Sections 42 to 45 of the Wakf Act, 1954, and specifically prayed for holding an enquiry under Sections 44 and 45 of the Act and for appointment of the second respondent to the post of mutavalli. This petition was grounded on certain allegations, which, briefly stated, amount to this. The petitioner in this court started a rival business under the name of "m. M. Mohideen Sons", prepared pamphlets under the name of "mohamadia Vaidya Salai mutavalli etc. misused the patent medicines which were the subject matter of the wakf, for his own purposes, and thus committed a breach of trust in disregard of the interests of the beneficiaries. In view of this conduct of the eldest son, the other sons removed him from the post of mutavalli and appointed the second respondent to the post. As the removal of the eldest son from the office as well as the appointment of the second respondent to the post are disputed, the Board should appoint the second respondent as mutavalli. In view of the breach of trust, the Board should also institute an enquiry into the administration of the wakf by the petitioner in this court. These are the allegations on which the, petition before the wakf Board was founded. The petitioner has come up to this court, asking for a rule restraining the Wakf Board from proceeding with the petition on the ground that, ex facie the petition before the Wakf Board, it has no jurisdiction to entertain and consider the same under the sections quoted therein.

(2.) IT is not disputed that for purposes of deciding the question of jurisdiction, the allegations in the application before the Wakf Board have to be assumed as true. On that basis, it seems to me that this petition under Article 226 of the constitution is premature. According to the second respondent, there is a dispute as to the propriety or validity of the removal of the petitioner from mutavalli-ship and the appointment of the second respondent to the post, and therefore, Section 42 of the Act is attracted. This appears to be so. This court is not at this stage concerned with the question whether the allegations in the petition before the board are well founded. What is necessary to note is that there obviously is a dispute as to the alleged appointment of the second respondent as mutavalli. The board will, therefore, have prima facie jurisdiction to go into the question, whatever may be its decision on merits.

(3.) THOUGH Section 43 is quoted at the top of the petition before the Wakf Board, in the concluding part, there is no prayer actually for removal of the petitioner. In any case, under Section 43, the Board is vested with the power to remove a mutavalli on certain limited grounds. If those grounds are not made out, the Board will, of course, have no jurisdiction to remove. But it is for the Board in the first instance to consider whether there are grounds made out for a removal.