A MUKRAM SHERIFF Vs. CHIEF EXECUTIVE OFFICER

JUDGEMENT

(1.) THE petitioner prays for issuance of a writ of Cetiorari to call for the records from the first respondent relating to the order passed by the first respondent in Lr.No.Rc.No.5024/C2/83/CH dated 01.02.2002 vide resolution item No.3/2002 and quash the same.

(2.) IN the affidavit filed along with the affidavit, it is stated as follows: The Hazarath Motti Baba Durgah situate in Pantheon Road, Chennai is a Wakf property. The petitioner's father Dastagir Sheriff who died on 04.12.1999 was managing the wakf and after his death, the petitioner was managing the same. The petitioner was regularly paying contribution to the Tamil Nadu Wakf Board and is conducting Urs function and submitting accounts to the Wakf Board. The petitioner's father Dastagir Sheriff, as a Muthavalli, filed a suit O.S.No.4522 of 1983 on the file of City Civil Court, Madras against one Mohamed Sheriff, the brother of the said Dastagir Sheriff, for a declaration that the petitioner's father was the sole Muthavalli of the said Durgah and for permanent injunction restraining the said Mohamed Sheriff from interfering with the adminsitration of the Durgah. The suit was decreed as prayed for on 18.04.1986. But on appeal in A.S.No.313 of 1986, the first appellate Court allowed the appeal on 30.10.1987 on the ground that the question relating to Muthavalli has to be settled through the Wakf Board, without the Wakf Board, the question of sole Muthavali cannot be decided and hence, the suit is not maintainable. Thereafter the petitioner's father filed second appeal in S.A.No.289 of 1988 on the file of this Court and this Court dismissed the second appeal on 30.04.1987. Aggrieved by the said judgment, a Special Leave Petition was filed before the Supreme Court in SLP.No.6170 of 1997 which was admitted and numbered as Appeal No.977 of 1998. Subsequently that appeal was dismissed in the year 2000, without issuing any direction.

(3.) LEARNED counsel appearing for the respondents submitted that Dastagir Sheriff and Mohamed Shriff were brothers. The property originally belonged to the grandfather of the petitioner and the second respondent. After the grand parents died, they were buried in that property, and it has become the worship place as Durgah and this Wakf by user was managed by both petitioner's father and second respondent's father jointly. Therefore, they were joint Muthavallis. Under Section 205A of Mullah's Mohammadan's Law. Muthavalliship passes by survivorship only when there is no custom contrary to that. If there is any proof for customary right for joint Muthavalli or succession of Muthavalli, Section 205-A does not apply. Further, if that provision is applied, the petitioner could not have become the Muthavalli at all, since on the date of death of his father, the second respondent's father was alive. Therefore, the second respondent's father alone could have become the sole Muthavalli and after his death, the second respondent alone would be entitled to be the sole Muthavalli. Since it was not the case of the respondents, and since the Courts also found that the Durgah was jointly managed by both petitioner's father and the second respondent's father, the second respondent does not claim that he is the sole Muthavalli. Further all this arguments regarding Section 205A have been advanced before the Wakf Board and only after considering all these circumstances, the Wakf Board has rejected the contentions of the petitioner and appointed the second respondent as joint Muthavalli. Therefore, the order of the Wakf Board is not illegal and hence, the writ petition is liable to be dismissed.