JUDGEMENT
Thanikkachalam, J.
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 Anagappa Naicken Street, George Town, and if anything remained after meeting those expenses to utilise the same for providing Kanji to Muslims on Ramzan day in the third Defendant Mosque.
3. According to the terms of the settlement deed Yaseen Sahib was directed to manage the property and perform the charity during his life time and thereafter the same to be done by the male descendants of the settlor. It was also provided that in event of their being no male descendants to perform the same, the Muthavalli of the 3rd Defendant was given the right to manage and perform the charity. In the absence of any Muthuvalli being available, it was provided that a Jamayath of the Muslim in the locality has to manage the property and perform the charity. Accordingly, Yaseen Sahib took charge of the property and he was carrying out the directions as per the settlement deed. On his death, the first defendant who is the son of the settlor took over the administration and he was carrying out the directions laid down in the settlement deed. On 3.6.1970, he had executed a deed of release reliquishing all his interest in the settlement deed in favour of the third Defendant. On the basis of that release deed, third Defendant took charge of the property and it is in possession of the same through the second defendant, who is the Muthavalli/Secretary of the third Defendant-Mosque. The Plaintiff came to know the release deed only in the year 1975. According to the plaintiff/Appellant, the release deed dated 3.6.1970 executed by the first defendant in favour of the third defendant-Mosque is illegal, fraudulent and not binding upon the Plaintiff, who is the eldest son of the first Defendant. Plaintiff/appellant submitted that in view of the settlement deed executed by Kareem Sahib, grand-father of the plaintiff he gets automatic right to be in possession of the property and administer the same which could not be bartered away by the first defendant without any justification. The right of the plaintiff was sought to be bypassed by the first defendant by executing the release deed. Hence, the plaintiff issued a notice to the defendants 1 to 3 setting out the facts elaborately and calling upon them to surrender posession of the property. The first defendant has not chosen to send any reply. Defendants 2 and 3 sent a reply raising various contentions. The Plaintiff has also sent a notice, to the fourth defendant. The Plaintiff had sent a rejoinder to the reply notice issued by the defendants 2 and 3. There was no compliance of the legitimate demand of the Plaintiff. Hence, the plaintiff filed the present suit. When the plaintiff filed the suit, he was a minor and subsequently he was declared as major on the petition filed by him in I.A. No. 14717 of 1978. Since no step has been taken against the first defendant, the suit has been dismissed on 27.10.1976 against the first defendant.
4. The case of the defendants 2 and 3 is as under: The defendants 2 and 3 state that the suit has been filed in collusion with the first defendant, the father of the plaintiff and also one Mohammed Ghouse, a tenant of the suit property. The Plaintiff has no right to institute the suit. It is not correct to state that the settlor desired that any one could utilise the income of the property for any other purpose except for the purpose of charity mentioned in the deed. The income of the property after defraying the tax and repair charges has to be utilised for feeding the persons who fast during the month of Ramzan at Edgah Mosque, the third defendant herein, of which the second defendant is the Muthavalli. The first defendant misappropriated the income from the trust property and that was brought to the notice of the 4th defendant/Wakf Board. Thereafter, the first defendant had executed a promisory note in favour of the Mosque along with the surety and on that promissory note a suit was filed against him and the surety in O.S.No. 938 of 1972 and that suit was decreed by the IX Assistant Judge, City Civil Court, Madras. The suit property being wakf property the right of management has been taken over by the third-defendant mosque whose worshippers are the ultimate beneficiaries. The suit itself is misconceived and not maintainable in law. The first defendant being the eldest member of the donor's family no one else including his son can get the right of management so long as the first defendant is alive. The Plaintiff is has no locus standi to file the suit. The plaintiff is therefore not entitled to declaration and possession sought for in the suit. The plaintiff has got only contingent right and hence the suit has to be dismissed with costs.
5. The fourth defendant Wakf Board contended that it has got a right of superintendence and control over all the wakfs under the Wakf Act, 1954. It is the duty of the 4th Defendant to exercise its powers under the Act to ensure that Wakfs under its Superintendence are properly maintained and the income is applied for purposes for which the Wakf was created. The plaintiff has no personal right of management. The allegation in the plaint that the balance of income after payment of arrears of property tax should be utilised for repairs of the settlor's house at Angappa Naicken street is not correct. The whole income of the suit property after payment of the property tax and other public charges has to be spent for the charity mentioned in the deed. The right of management alone was conferred on the eldest male member of the settlor's family. Except, the third defendant-Mosque, there is no other beneficiary contemplated under the deed of wakf. The first defendant being the eldest son of the settlor, is the only person having the right of management of the suit property. So long as he is alive, neither the plaintiff nor any other person can claim the right of managment. The first defendant had executed the release deed on 3.6.1970 for valid reasons. The allegation in the plaint that the abovesaid release deed is illegal, and fraudulent, is not correct. Only the right to administer, the property has been given to the eldest male member of the family and the plaintiff is not entitled to any relief and hence the suit has to be dismissed with costs.
6. The plaintiff examined himself as a witness. On behalf of the second defendant and third defendant one Abdul Kuddus was examined. The plaintiff filed Exhibits A-1 to A-10 and defendants 2 and 3 filed Exhibits B.1 to B.6. The trial court framed 5 issues and ultimately held that 'The suit is maintainable and the suit notice dated 15.8.1975 is valid, and that Exhibit B.4 release deed executed by the first defendant dated 3.6.1970 is not illegal and it will be binding on the plaintiff during the life time of the first defendant and the plaintiff has got a right to recover possession of the suit property to manage the same and to perform the charity only after the life time of the first defendant'. Accordingly, the suit was decreed in part without costs. Aggrieved, the plaintiff filed an appeal before the first appellate Court and defendants 2 and 3 have filed cross objection as against the finding of the trial court, that the plaintiff is entitled to possession of the suit property after the life time of the first defendant, Considering the facts appearing in this case and after hearing the counsel appearing on both sides, the first appellate court dismissed the appeal filed by the plaintiff with costs and the cross objection filed by the respondents/defendants 2 and 3 was allowed and the suit was dismissed. Aggrieved by this, the plaintiff is in appeal before this Court.
7. 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 Muthavalliship 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 Exhibit A.1, and contrary to the founder's direction. Therefore, the said release deed is not binding upon the plaintiff/appellant. Even according to Exhibit A.1, the first defendant is prevented from alienating or relinquishing his interest in the trust properties given under the settlement deed Exhibit A.1. 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 atutomatically 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 Muthavallli from the first defendant to the third defendant. In view of the provisions of Sections 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 draws a similarity between the trust and the Wakf. In order to suport his contention he would rely upon the decisions reported in the case of Venkatesa Archagar v. E. Ekambara Archagar (1966) I.L.R. 1 Mad. 374 in the case of Mt. Aziza Khatun v. State of West Bengal , and in the case of Khalil Ahmad Khan v. Siddiq Ahmed Khan . The learned Counsel for the appellant also pointed out that Section 15 of the Wakf Act deals with the section for the sale of the property and it does not deal with transfer of Muthavailliship. 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. 4,000 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.
8. Learned counsel appearing for the 4th respondent Wakf Board contended that Section 43 of the Wakf Act empowers the Wakf Board to remove Muthuvalliship when there is mismanagement. A notice was given and the first defendant submitted that he is unable to manage the trust properties and requires Rs. 4,000 by way of loan and this loan was granted on condition that the first defendant should transfer right of management to the third defendant. This arrangement was made in order to save the trust properties, since first defendant is attempting to mortgage the trust properties. Exhibit B.2 is the show-cause notice issued to first defendant as to why he should not be removed from the Muthavalliship. After the show-cause notice within 15 days the first defendant has not given any explanation. Therefore, he is deemed to have been removed from Muthavalliship by Exhibit A. 10. Third defendant was therefore directed to take over all the administration. The board will take over the management whenever the office fell vacant. At the time when the release deed was executed, the plaintiff was a minor and therefore the fourth respondent exercised its right over the Wakf property since it has got superintending power. Third respondent is not a stranger and it is through the mosque the charity has got to be performed. Even in the suit Exhibit B.5, the order issued by the board is not questioned. Therefore, the transfer of office was made not for consideration as alleged. The learned Counsel for the Wakf Board relied on the provisions contained in Sections 43, 43-A, 42 and Section 15 of the Wakf Act, 1954. According to the learned Counsel for the 4th respondent the relief as claimed by the plaintiff cannot be granted during the life time of his father. His father expressed his inability to manage the trust properties and since there was mismanagement, the Wakf Board exercises its power as conferred under the provisions of the Act.
9. I have heard the agruments advanced by the learned Counsel appearing for the appellant and the learned Counsel appearing for the respondents 2, 3, and 4.
10. The fact remains that the appellant herein who is the plaintiff in the suit is the son of the first defendant/first respondent herein. The plaintiff has filed the above suit for a declaration that the release deed dated 3.9.1970 executed by the first defendant in favour of the third defendant is illegal and not binding upon him and for possession of the suit property from defendants 2 and 3. The suit property is a superstructure bearing Door No. 15, Velayuthan Lane, Madras, belonged to one Kareem Sahib originally, who is the paternal grand-father of the plaintiff and he executed a deed of settlement called Wakf deed on 6.3.1933. According to the said deed, the income of the suit property was directed to be collected by the brother of the settlor by name Yaseen Sahib and Yaseen Sahib was directed to utilise the rental income for payment of arrears of property tax relating to the suit property for a period of four years and the balance to be utilised towards the repair on a house of the settlor situated in Angappa Naicken Street, Madras-1 and if anything remained after meeting the expenses a direction was given to utilise the same for providing Kanji to Muslims on Ram/an day at Edgah Mosque. Accordingly, Yaseen Sahib took charge of the property and carrying out the charitable objects as per directions in the settlement deed. After his death, the first defendant, who is the son of settlor of the settlement deed took over the administration and he was carrying out the directions laid down in the settlement deed. Since he was unable to perform the charities, the first respondent therein wrote a letter dated 28.3.1970 expressing his inability to administer the estate to the Secretary. Edgah Mosque Angappan Naicken Street, Madras-I. The said letter reads as under:
I am the executor of the M.A. Kareem Trust being the only son of my late father Janab M. Abdul Kareem Sahib.
I have been managing the above trust for the past so many years. I am anixous to handover the management of Trust to the Trustees of the Edgah Mosque Charities who are the sole beneficiaries of the said trust.
As I am involved in heavy debts and financial difficulties I request the Managing Committee of your trust to help me by giving me a loan of Rs. 4,000 (Rupees four thousand) without interest which I shall pay back in monthly instalments of Rs. 100 (Rupees one hundred) in lieu of my handing over the complete executorship of my father's Trust to the Edgah Mosque Charities. In this connection I have to inform you that I am an employee of the Integeral Coach Factory and I am drawing nearly Rs. 300 per month. I am prepared to give necessary guarantee for the recovery of your loan to me.
On 13.5.1970, by a proceeding No. 4078/B4/70 the Special Officer through the Superintendent of Wakf permitted the Edgah Mosque Charities to give Rs. 4,000 to Thiru K.Md. Ansar after executing a registered deed transferring the management of Wakf known as M.A. Kareem Trust in favour of Edgah Mosque Charities. Thereafter, K.Md. Ansar executed a release deed on 3.6.1970 in favour of Edgah Mosque Charities. In the said deed it was stated that the releasor is employed in Integral Coach Factory and therefore he is unable to manage the property properly or carry out the charities mentioned in the Wakf. Hence he desired to release and relinquish his right of management over the property in favour of the releasee. Accordingly, he released his right, title and interest in and to the management of the property described in the Schedule in favour of the releasee.
11. By letter dated 3.3.1971, the Special Officer for Wakfs issued a show-cause notice to Thiru K.Md. Ansar directing him to, show-cause why action should not be taken under Section 41 of the Act. Me was directed to submit his explanation within 15 days from the date of this notice, failing which it will presume that he has no explanation to offer and that further action will be taken against him under the provisions of Wakf Act, 1954.
12. The contentions of the appellant herein is that under the settlement deed dated 6.3.1933 it is stated that the Charity should be performed by Yaseen Sahib. After his death, the eldest male member of the family has to perform the charity. After the death of Yaseen Sahib, the management of the Wakf property automatically comes to first defendant by virtue of the settlement deed. The first defendant, son of the donor has expressed his inability to manage this trust property and desired to release and relinquish his right in favour of the third defendant. But as per the terms of the settlement deed, the Mutavalli of the third defendant is not entitled to take over the property and its management if the eldest male member of the family desires to perform the charity by himself. Therefore, according to the appellant that his father has expressed his inability to administer the estate, according to the settlement deed dated 7.3.1933 and therefore he is entitled to assume the office of Muthavalliship for the purpose of performing the charities as per the settlement deed. The Wakf Board cannot ignore his right and by-pass the terms of the settlement deed and hand over the adminstration of the, trust properties to the 3rd defendant. The appellant further contended that the Board passed all these orders without giving any notice to the appellant, who is the next heir, in the line of succession according to the terms of the settlement deed. However, the Wakf Board pointed out that since there was mismanagement by the first defendant and when he himself expressed his inability to perform the charities, in the interest of Charitable properties, the board passed necessary orders directing the Edgah Mosque Charities to take over the administration of the trust properties. Therefore, according to the Wakf Board there is nothing wrong in its approach in handing over the adminstration of the trust properties in the hands of Edgah Mosque Charities, which is ultimate beneficiary. It remains to be seen that the ultimate beneficiaries are the poor Muslims, who are entitled to get Kanji on Ramzan day and not the Edgah Mosque and Charities as alleged by the Wakf Board.
13. The questions that arise for consideration are whether the first defendant was correct in relinquishing his right and interest in the Wakf properties in favour of Edgah Mosque charities and whether the Wakf Board was correct in directing the Edgah Mosque Charities to take over the administration of the trust properties ignoring the terms of the settlement deed. Admittedly, by a letter dated 28.3.1970 (Ex.B.1.) K. Mohammed Ansar expressed his willingness to handover the complete executorship of his father's trust to Edgah Mosque Charities in lieu of the Edgah Mosque Charities giving him a loan of Rs. 4,000. Thereafter, the Special Officer of the Wakf Board by letter dated 13.5.1970 granted permission to the 3rd defendant to give Rs. 4,000 to the first defendant on condition that he should execute the registered deed transferring the management of the wakf properties in favour of Edgah Mosque Charities. It is no doubt true that the Wakf Board has got the right of Superintendence and control over all Wakf as per Section 15 of the Wakf Act, 1954. But this right should be exercised in accordance with the provisions contained in the Wakf Act. But in the present case, the materials available on record show that the Wakf Board has not followed the provisions contained in the said Act before handing over the management of Wakf properties to the 3rd Defendant. It is only under the orders of the Wakf Board, the third defendant mosque hastaken over the management as can be seen from Ex.B.5. However, the facts appearing in this case suggest that the first defendant executed the release deed in favour of Edgah Mosque Charities on a consideration of obtaining a loan of Rs. 4,000. In fact, the first defendant expressed his inability to manage the trust properties. In the settlement deed or wakf deed dated 6.3.1933 there is a prohibition imposed on the Muthavalli from alienating the wakf properties. It means even the right to administer the trust properties and the office of Muthavalliship also should not be alienated according to the terms of the settlement deed except in accordance with the terms contained therein. There is nothing on record to show that the Wakf Board, either issued any notice of its proceedings to the plaintiff or taken into consideration the terms of the settlement deed, before handing over the office of Muthavalliship and the management of wakf properties to the third defendant.
14. A similar situation came up for consideration before the Allahabad High Court in the case of Khalil Ahmed Khan v. Siddiq Ahmed Khan , wherein the Allahabad High Court held as under:
It is contended that the custodian was competent to transfer the management of the Wakf property to the defendant-appellant and as such the appellant is holding the office of Muthavalli in that capacity. This contention cannot be accepted for the obvious reason that the office of Muthavalli is not transferable under the Mohammedan Law. In this connection, a reference may be made to para 214 of Mulla's Principles of Mohammedan Law, 16th Edition.
15. In similar circumstances in the case of Aziza Katum v. State wherein the Calcutta High Court held as under:
It is now an established principle of law that the Commissioner of Wakfs, in making in appointment under Section 40 shall try to give effect to the wishes of the Wakf and appoint Mutawallis from amongst the members of the family of the Wakf. A stranger is not at all desirable to be introduced into a wakf estate consisting of the family dwelling house, tanks, orchard etc. Where the Commissioner of Wakf had appointed as Mutawallis complete strangers to the family of wakf or the last holders of the offices of Mutwallis without giving opportunity to the heirs of last Mutwallis and Wakif of being substituted as Mutwallis in place of last Mutwallis the order of appointment of commissioner was improper.
16. The learned Counsel for the appellant by equating the Wakf with the Trust relied upon a decision reported in the case of Venkatesa Archagar v E. Ekambara Archagar (1966) I.L.R.1 Mad.374 at 375 wherein it was held as under:
A Religious office like that of an archaka or dharmakartha could not be alienated for value.
17. The Board's power to appoint or remove a Mutawalli is strictly limited to the special circumstances mentioned under Sections 42 and 43 read with Sections 15, 44 and 45. The Board has no power to adjudicate upon the office. (See Alam Aboobacer Suit v. Kerala Wakf Board (1982) 2 I.L.R.364 Section 42 conferring the power of appointment of mutawallis in the circumstances enumerated therein cannot be read as conferring the power of handing over or transferring management of wakf by the Board to another person. Any order of removal of mutawalli passed by the Board without following the mandatory statutory procedure prescribed under Sections 43(4) and 45 read with Rule 23 will be wholly illegal and will result in denying the mutawalli a reasonable opportunity of meeting those charges. Section 43-A does not confer the power of handing over the management or transferring the management of a wakf by the Board to another person (See I.L.R. (1982)2 Kar. 1172 and 1177).
18. Admittedly, the wakf board knew the existence of the settlement deed dated 6.3.1933 and the clauses contained therein. Before taking over the management of the wakf property from the first defendant and handing over the same to the third defendant, the wakf board has not given any notice to the plaintiff or any other nearest heir. No doubt, it can be said that plaintiff was a minor at that time, but during the course of the trial proceedings he was declared as a major by the trial court. At least thereafter, the wakf board could have considered the case of the plaintiff. The fact also remains that the wakf Board has not followed any procedure prescribed under the Wakf Act, 1954, before taking over the management of the wakf property from the first defendant and handing over the same to the third defendant. Such a course adopted by the wakf board ignoring the provisions of the Wakf Act and the terms of the settlement is erroneous. So also, the release deed executed by the 1st defendant dated 3.6.1970 in favour of the third defendant in violation of the clauses contained in the settlement deed dated 6.3.1933 and against the law on this subject is unsustainable and therefore neither binding nor operative against the plaintiff. In view of the terms of the settlement deed dated 6.3.1933 when the first defendant does not want to manage the wakf property, then the management automatically vests with the plaintiff.
19. Thus on considering the facts appearing in this case, in the light of the judicial pronouncement cited supra, I hold that the courts below are not justified in dismissing the suit filed by the Plaintiff. In that view of the matter, I set aside the Judgments and decrees of the courts below, allow this second appeal and decree the suit O.S.No. 1476 of 1976 as prayed of with costs.