MOHAMMED SULAIMAN Vs. A P WAKF BOARD

JUDGEMENT

(1.) Plaintiffs are the appellants. Suit for declaration that the 1st respondent had no jurisdiction to grant Towliath (succession) in favour of the 2nd defendant-respondent and, therefore, its order dated 6-4-1997 is illegal and void, has been dismissed.

(2.) The facts giving rise to this appeal may be briefly stated as follows: There is a Mosque popularly known as the 'Jama Mosque' at Yellandu and this Mosque owns 25 malgis. The grandfather of the second respondent, namely Mohammed Khasim since deceased, was the Muthvalli and Secretary of the 'Jama Mosque' and used to manage the affairs of the Mosque and Malgis. After coming into force of the Wakf Act, 1954 (for short 'the Wakf Act'), the Wakf Board had taken over the supervision of the Mosque and the Malgis. On 19-2-1935 late Mohammed Khasim executed a Wakf Deed, Ex. A-16 in Urdu (translated copy in English of the same is at Ex.A-17), whereby he declared that after his death his elder son and after his death his son would become Muthvalli of the Mosque and in the event there is no son of his elder son, the Government would be free to appoint anybody. After his death on 7-3-1952, his elder son, that is the father of the 2nd respondent, became Muthvalli for two years and he died on 30-6-1954 leaving the second respondent as his minor son who was about eight years. At the instance of the second respondent for grant of 12 years Towliath (succession) in terms of the Wakf Deed, Ex.A-16, and appointment as Muthvalli, the 1st respondent invited objections by publishing public notice in Urdu Newspaper, Ex.A-7 (English translation of which is at Ex.A-8), and thereafter appointed the 2nd respondent as Muthvalli to manage the Jama Mosque and the Malgis vide proceedings dated 6-4-1977. The appellants sought a decree for declaration that the impugned order dated 6-4-1977 passed by the 1st respondent granting succession and appointing the second respondent as Muthvalli of the Mosque in question is illegal and void because the 1st respondent had no power to grant such succession under the provisions of the Wakf Act and also sought a decree for accounts of the Mosque for the years 1977-78, 1978-79 and 1979-80. The respondents resisted the suit alleging that the Jama Mosque was permanently constructed by Late Mohammed Khasim and the Malgis were constructed by his own funds and because he had executed the Wakf Deed, Ex.A-16, wherein provision for appointment of hereditary Muthvalli had been made, the 1st respondent was competent to grant succession and to appoint the 2nd respondent as Muthvalli of the said Mosque.

(3.) The trial Court found that the Jama Mosque was a public Mosque and by virtue of Para 5 of the Wakf Deed, Ex.A-16, the second respondent was entitled for grant of succession because Para 5 provides that till his life time, late Mohammed Khasim, was to remain as Muthvalli and Secretary of the Mosque and on his death his elder son and on his death his son that is the 2nd respondent were entitled to be appointed as Muthvallis. The trial Court also held that, by virtue of Section 42 of the Wakf Act, the Wakf Board is entitled to appoint Muthvalli in the event that there is an existing vacancy and there is no one to be appointed under the terms of the Deed of Wakf and when the right of any person to act as Muthvalli is disputed. Holding so, the trial Court concluded that the Board has power to appoint and grant succession to the 2nd respondent both as per the terms of the Wakf Deed, Ex.A-16, and also as per the provisions of the Wakf Act. The trial Court also ordered for appointment of a Managing Committee consisting of nine members to manage the affairs of the Mosque in pursuance of the terms of the Wakf Deed, Ex.A-16. In result, the suit was dismissed.