BY AD v. R.RAMADAS

Sri.B.K.Sidheeque, the General Secretary, mentioned that the matter with regard to the appointment of new mutawalli in view of the request ibid be deferred. In E.P.No.300 of 2016 similar claim as made in the A.S. No.1 of 2005 by assailing the registration of 2000 was made treating both the properties under one Wakf deed, by the Isthiba-ul Muslimeen Sangham, petitioner in C.R.P.No.5 of 2022, based on the documents of 1953 and 1958. Petitioner B.K.Kunhumuhammed who claimed to be appointed as Manager of mosque in place of Ibrahimkutty under the name and style ‘Kodakkallu Juma-ath Palli’ and another contested the aforementioned claim by raising all possible objections much less plea of res judicata. Both the parties produced various documents though not reflected from the order of the Board. There is only reference of two witnesses - PW1 and RW1. By relying upon the copy of the electricity bills in the custody of the Sangham, rendered the findings against the mosque – CRP(WAKF) Nos.5/2022, 11/2021 -10- petitioner in CRP No.11 of 2021 and held that the second registration was done without showing mutawalli, therefore Isthiba-ul Muslimeen Sangham would be the mutawalli of the said Wakf as well. The aforementioned assailed by the petitioner B.K.Kunhumuhammed claiming to have been appointed as Manager in the meeting of the members held on

25.11.2013, raising various grounds, which was registered as Wakf Original Appeal No.211 of 2019.

5. Learned tribunal accepted the appeal in part with regard to registration of two set of properties by holding that they are not identical but separate properties. The factum of previous litigation against the Sangam was also noticed. But in paragraph No.25 issued directions to the Board that the claim of mutawalliship to be examined independently based on the evidence adduced by the petitioner B.K.Kunhumuhammed and not on the basis of succession being the son of previous mutawalli Ibrahimkutty as the CRP(WAKF) Nos.5/2022, 11/2021 -11- Muslim law did not recognize any inheritance right of succession to the office of Mutawalli unless specifically provided. Both the parties being aggrieved of, in the background noticed above, preferred two CRPs, details of which have already been given i.e., No.11 of 2021 on behalf of the B.K.Kunhumuhammed and No.5 of 2022 on behalf of B.K.Sidheeque, the enquiry petitioner in E.P.No.300 of 2006.

6. Mr.Firoz K.M., learned counsel appearing on behalf of the petitioner in C.R.P.No.11 of 2021 submitted that the domain of framing of the scheme does not lie with the tribunal but with the Board, however in this case, there was no need of separate scheme as the Wakf deed contained a self contained arrangement of management to be conferred upon the Manager from time to time. In support of the contention relied upon the judgment of Supreme Court in M.P Wakf Board Vs. Subhan Shah (D) By Lrs. and Others (2006 (10) SCC 696) wherein the Supreme Court, after discussing CRP(WAKF) Nos.5/2022, 11/2021 -12- the provisions of the Wakf Act, 1994 in paragraph No.27 and 28 found that the tribunal has been constituted for the purpose mentioned in Section 83 of the Act, thus cannot usurp the jurisdiction vested under the statute.

7. It was next contended that the petitioner never claimed mutawalliship on the basis of the inheritance as the contents of the wakf deed of 1933 registered in 2000 vide registration No.7019/RA did not envisage such procedure, rather conferred the powers on the members to appoint Managers who would be acting as mutawalli. In support of the contention relied upon the Division Bench judgment of this Court in Kunhikoyamutty T.P. and Another Vs. A.P.Muhammed Kutty and Another (2017 (5) KHC 164), wherein it has been held that the Muslim does not require any right of inheritance or rule of hereditary succession to the office of mutawalli until and unless it is provided in the instrument and mutawalli cannot in any manner transfer the office to another unless such power is expressly conferred upon him by CRP(WAKF) Nos.5/2022, 11/2021 -13- the founder.

8. The submission of the enquiry petition bearing No.300 of 2016 during the pendency of the CRP No.546 of 2007 was an attempt to usurp the powers, and abuse of the process of law much less hit by doctrine akin to res judicata as there was already a detailed finding against the Sangam, petitioners in CRP No.5 of 2022, holding the sets of property registered under two different registrations i.e No.2318/RA of 1961 and 7019/RA of 2000. Even otherwise, the tribunal vide the order under challenge had categorically, in paragraph Nos.12 and 13, dealt with the contents of document of 1933, 1938, 1957 and 1958 to form an opinion identical to the one found in the previous order of 03.04.2007.

9. This Court had not given any separate right to the complainant to espouse the grievance again except by keeping the matter pending as it may not prejudice the right of the parties seeking appointment of mutawalli in a pending application in terms of the communication CRP(WAKF) Nos.5/2022, 11/2021 -14- of the Divisional Officer dated 10.12.2015, but owing to the pendency of the CRPs, the said application could not be processed. Now it is the right time in case this Court ultimately brings a quietus to the aforementioned proceedings matter can be agitated but not for the purpose of framing the scheme as erroneously been decided by the tribunal in paragraph No.25 of the judgment under challenge.

10. On the other hand, Mr.T.Krishnanunni, learned Senior Counsel assisted by Mr.R.Ramdas submitted that in the enquiry held for registration of the Wakf deed No.2318/RA 1961 as per provided under Sub- section 7 of Section 36, it was found that the Mosque was managed by the Sangam. Not only that, even the electricity bills of the mosque and other properties appurtenant/attached thereto were also paid by the Sangam. Conscious possession of the bills/receipts in such circumstances would be wholly immaterial. Vide the deeds of 1933, 1938, 1957 and 1958 nowhere at any CRP(WAKF) Nos.5/2022, 11/2021 -15- point of time waqif or the founder conferred the power of mutawalliship on the basis of succession/inheritance. In the application submitted in 2015, the column meant for mutawalliship was kept blank, which conveyed that there was no mutawalli of the said Kodakkallu Juma Masjid and it appears that there was no such bye-laws for managing and controlling the properties. It is in that background the tribunal found that the scheme provided under section 63 of the Act was required to be framed. Even if the findings of the tribunal holding two sets of properties to be different and had been registered at different point of time, but regarding appointments, any person interested as provided under Section 3K of 1995 Act can always espouse the grievance when the pending application for appointment of mutawalliship is taken up for consideration by the Board. The findings of the tribunal in view of the earlier decision cannot be said to be hit by the doctrine of res judicata as it was based on different set of evidence and parties. Even otherwise the CRP(WAKF) Nos.5/2022, 11/2021 -16- right to sue was protected in view of the order of this Court dated 07.04.2006 in CRP 546 of 2007.

11. Mr.Jamsheed Hafiz, learned Standing Counsel appearing on behalf of the Wakf Board submitted that as far as the registration bearing No.7019/RA 2000 is concerned, when the application was received the Board did not actually conduct enquiry strictly as provided under Section 36(7), nor such enquiry proceedings was placed in the earlier round of litigation and also in the proceedings under challenge, but did not deny the fact that the Sangam have a different set of bye-laws. The Board would not be averse in taking up the pending application in pursuance of the request submitted in 2015 by the petitioner in CRP No.11 of 2011 which shall be dealt with in accordance with law as provided under Section 37(1)(b). Any aggrieved person would be at liberty to take action but not the Secretary of the Sangam, in view of the dismissal of the claim in the previous round of litigation. CRP(WAKF) Nos.5/2022, 11/2021 -17-

12. We have heard learned counsel for the parties and appraised the paper books.

13. Before adverting to the rival contentions and extraction of various orders passed in the previous round of litigation, we would be failing in duty in not extracting the relevant provisions of the Wakf Act. Sections 3(k), 37 and 63. “Section 3(k) “person interested in a waqf” means any person who is entitled to receive any pecuniary or other benefits from the waqf and includes— (i)any person who has a right to offer prayer or to perform any religious rite in a mosque, idgah, imambara, dargah, khanqah, peerkhana and karbala, maqbara, graveyard or any other religious institution connected with the waqf or to participate in any religious or charitable institution under the waqf; (ii)the waqif and any descendant of the waqif and the mutawalli;

37. Register of auqaf.— (1)The Board shall maintain a register of auqaf which shall contain in respect of each waqf copies of the waqf deeds, when available and the following particulars, CRP(WAKF) Nos.5/2022, 11/2021 -18- namely:— (a)the class of the waqf; (b)the name of the mutawallis; (c)the rule of succession to the office of mutawalli under the waqf deed or by custom or by usage; (d)particulars of all waqf properties and all title deeds and documents relating thereto; (e)particulars of the scheme of administration and the scheme of expenditure at the time of registration; (f)such other particulars as may be provided by regulations. (2)The Board shall forward the details of the properties entered in the register of auqaf to the concerned land record office having jurisdiction of the waqf property.(3) On receipt of the details as mentioned in sub-section (2), the land record office shall, according to established procedure, either make necessary entries in the land record or communicate, within a period of six months from the date of registration of waqf property under section 36, its objections to the Board.

63. Power to appoint mutawallis in certain cases.— When there is a vacancy in the office of the mutawalli of a waqf and there is no one to be appointed under the terms of the deed of the waqf, or where the right of any person to act as mutawalli is disputed, the board may appoint any person to act as CRP(WAKF) Nos.5/2022, 11/2021 -19- mutawalli for such period and on such conditions as it may think fit.”

14. Section 3(k) of the Waqf Act defines the person interested in a waqf any person who has the right to offer prayer or to perform any religious rite in a Mosque, idgah, imambara, dargah, Maqbara, graveyard etc. Sub section (r) of Section 3 defines “waqf” which means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes a waqf by 'user' which shall not cease to be a wakf by reason in case any of other conditions prescribed in subsequent paragraphs are not attracted. Just to remind ourselves two set of registration in 1961 and 2000 were done on the basis of two sets of documents referred above, the registration of 2000, as noticed above, was assailed by the complainant in E.P.No.300 of 2016 i.e.,Isthiba-ul Muslimeen Sangam Venniyoor, Kodakkallu before the tribunal vide Appeal CRP(WAKF) Nos.5/2022, 11/2021 -20- Suit No.1 of 2005. The detailed evidence was lead by the parties to the lis as the then mutawalli Bhagavathikkavunkal Ibrahimkuttihaji was arrayed as respondent No.1 besides Board as respondent No.2 and on analysis of the evidence on record, the tribunal in paragraph No.14 arrived at such findings. The same reads as under: “14. On going through the documentary evidence produced on either side it is clear that Kodukkollu Jumeyath masjid is a wakf registered with Kerala wakf Board evidenced by Ext. B1. Sirajul Uloom Madrassa is another registered wak evidenced by Ext. B21. The appellant society is a registered society and the management of Kodukkollu Jumayath mosque is not mentioned in Exts. B22 and B23. Exts. Bl to B4 and B25 marriage register shows that the respondents are conducting marriage in the mosque. Exts. Bl3 to B19 documents also prima facie shows the possession of the mosque by the Ist respondent muthavalli. Though Ext.B21 wakf register and the properties wakfed as per Exts. B27 and B28 are made for the purpose of madrassa, the appelant nave not produced those documents and those documents are adverse to their interest. The appeliant is mainly relying CRP(WAKF) Nos.5/2022, 11/2021 -21- upon Exts. A15 to A25 documents wherein the name of Jumayath palli is also written in those documents. Much credence cannot be given to Exts. A15 to A18 and A20 to A22 because more mentioning of the name of he mosque in the address of the President of the appellant Society is not sufficient to establish that the appellant committee is the muthavalli of the Kodakkollu Jumayath mosque. None of the documents produced on the side of the appellant are sufficient to hold that they are in management of the mosque. No supporting documents are available with the apellants to prove that they are in actual management of the Kodakkollu Jumayath Masjid. The documents produced before the court clearly establishes that Kodakkollu Jumayath Masjid and Sirajul Uloom Madrassa are different wakfs having different mutnavallies. Thus the claim of the appellant that they are in management of the mosque is unsustainable. In that view of the matter there is no need of issuing a notice to the appellant under Section 36 of the Wakf Act. The wakf Board is bound to issue notice to the institution who are in management of the wakf only. Hence the appellant was not in management of the mosque. It is pertinent to note that a General Secretary of the appellant has not filed the appeal. The Secretary has filed the appeal. As per the bye-law of the Society General CRP(WAKF) Nos.5/2022, 11/2021 -22- Secretary is competent to represent the society. The Secretary is competent to do only the work entrusted by the General Secretary. The President of the society has also not come forward to file the appeal. Probably because of the fact that he is a signatory to Ext. B24. Ext. 23 minutes is relating to Madrassa. The Period of Ext. B25 marriage register is from 23.3.1997 onwards Contention of the appellant that Ext. B25 was taken away by the respondents has no basis. Ext. B25 is in the possession of Ist respondent. Taking all these aspects into consideration I find that the appeal is misconceived and filed without alterior motive. Therefore the appeal is liable to be dismissed.”

15. Aforementioned order was assailed in this Court and when the matter was pending, this Court on

07.04.2016, noticing that by that time the previous mutawalli B.K. Ebrahimkutty Haji had died and no effort was made to bring on the legal heirs, dismissed the revision petition (CRP.546/07) as abated by observing as under: “We have perused the papers of this revision which is pending as defective on account of non- CRP(WAKF) Nos.5/2022, 11/2021 -23- impleadment of the legal representatives of the 1st respondent. The 1st respondent was held to be the mutawalli of the Jamaath in question. That decision of the Wakf Board was challenged before the Wakf Tribunal. The revision petitioner's appeal was dismissed. During the pendency of this revision in which there is no interlocutory order, the 1st respondent died. It is a right to office, that was an issue. Therefore, as rightly pointed out by the learned counsel for the revision petitioner, the right to sue does not survive. No question of impleadment arises. The matter in issue has become infructuous and the issue has abated with the death of the 1st respondent who had held the office. Hence, without prejudice to any further proceedings before the Wakf Board in relation to the office of mutawalli of the Wakf in question, this revision is dismissed”

16. During the interregnum, since the previous mutawalli of the mosque B.K.Ebrahimkutty had died, the members of the kodokkal Juma Masjid convened a meeting on 25.11.2013 and passed the resolution in favour of the B.K.Kunhumuhammed to be appointed as CRP(WAKF) Nos.5/2022, 11/2021 -24- mutawalli/Manager. On the basis of the aforementioned decision an application was submitted to the Board by enclosing the certificate of the Village Officer dated

02.12.2015. Before the application could be processed, the Sangam vide communication dated 30.12.2015 requested the Board not to process the application in view of the pendency of the revision petition in this Court bearing No.546 of 2007. On the basis of the aforementioned request, Divisional Office, Kerala State Wakf Board, Malappuram addressed a letter to the petitioner in C.R.P.No.11 of 2021 B.K.Kkunhumuhammed to apprise about the pendency of C.R.P.No.546 of 2007. Intriguingly Sangam had again, as noticed above, submitted an enquiry petition bearing No.300 of 2016 to the Board for setting up the identical claim as set out in the Appeal Suit No.1 of 2005. The application is dated

19.01.2016. This fact has also been noticed by the tribunal in paragraph 18. The same reads as under: CRP(WAKF) Nos.5/2022, 11/2021 -25- “18. Before the dismissal C.R.P.No.546/2007, the 2nd respondent herein had submitted an application before the Waqf Board on 30.11.2015 stating C.R.P.No.546/2007 is pending before the Hon'ble High Court of Kerala and B.K.Ibrahimkutty Haji, who was recognized by the Waqf Board as the mutawalli, has expired on

19.10.2013. They claimed that Ithifaqul Muslimeen Sangam is managing the mosque also and therefore, requested to defer the appointment of new mutawalli till the disposal of the C.R.P and sought for a chance of hearing to Ithifaqul Muslimeen Sangam before appointing a new mutawalli. He had contended that the report of the Survey Commissioner at the time of their registration disclosed the management of the mosque by the Ithifaqul Muslimeen Sangam. On 19.1.2016, another application was submitted by the 2nd respondent before the Waqf Board with the same set of contentions. Pending these two applications before the Waqf Board, the Hon'ble High Court of Kerala has dismissed C.R.P.No.546/2007 without prejudice to any further proceedings before the Waqf Board in relation to the office of the mutawalli of the waqf in question.”

17. The tribunal did not blindly apply the findings CRP(WAKF) Nos.5/2022, 11/2021 -26- rendered in the previous round of litigation while dismissing the Appeal Suit No.1 of 2005, but discussed each and every document in minute detail for forming an opinion that the two set of registration were of two different properties. Relevant portion of paragraph Nos.12 and 13 of the impugned judgment under challenge reads as under: “ 12. Document No.852/1933 is a waqf deed executed by Bhagavathi Kavungal Kunhahammed Haji for the purpose of constructing a new Juma- ath Palli and also for a khabarsthan. In the document it is stated that " നാട്ടുകാരണവന്മാരും മറ്റും കൂടി പട്ടികയിലെ(cid:20) പറമ്പിൽ പള്ളി എടുപ്പിക്കുന്നതിനും മയ്യിത്ത് മറ ലെ#യ്യുന്നതിനും പറമ്പിലുള്ള കുഴി ക്കുറകളയും മറ്റും ആദായങ്ങൾ എടുത്ത പള്ളി സംബന്ധമായി വേവണ്ടി വരുന്ന ലെ#(cid:20)വ് ലെ#യ്‌യുന്നതിനും മറ്റു ഇത മുത(cid:20)ായി എനിക്കും എലെ6 പിൻഗാമികൾക്കും യാലെതാരാവകാശവും കൈകവശവും നിശ്ചയി=ിരിക്കുന്നു. ലെതർലെ=യും ബാദ്ധ്യതയും ഇല്ലന്നും പട്ടികയിലെ(cid:20) പറമ്പിലെ6 നികുതി ജമ എലെ6 വേപരിൽ ആയതുലെകാണ്ട് ഇവേപ്പാൾ നികുതി ഞാൻ തലെന്ന അടച്ചുലെകാള്ളാലെമന്നും പള്ളി എടുപ്പി= മാലെനജലെര മലെHാ നിശ്ചയി=തിവേനവേശഷം ഞാൻ ഹരജി തിരിച്ചുലെകാള്ളാലെമന്നും നിശ്ചയി=ിരിക്കുന്നു.” ലെകാടുത്ത ജമ This property is situated in R.S.No.8/2. This is CRP(WAKF) Nos.5/2022, 11/2021 -27- the first document executed in the year 1933 in favour of Kodakkallu Juma-ath Palli and the waqif Kunhahammed Haji is the grandfather of the applicant herein. It is made clear in the waqf deed itself that the successors of Kunhahammed Haji have no right over the property. It is pertinent to note that though the waqf was created as per this document, the waqif has not retained the mutawalliship and the rule of succession of the mutawalliship was not intended by the waqif. It was only stated that the mosque building has to be constructed by the karanavans in the locality and the mutation can be effected in favour of the Manager, if any, appointed after the construction of the mosque.

13. Document No.376 of 1938 is also a waqf deed executed by the same waqif Kunhahammed Haji in favour of Kodakkallungal Juma-ath Palli. The property covered by this document is situated on the western boundary of the property already dedicated as waqf as per document No.852/1933. In this document it was stated that “ പട്ടികയിലെ(cid:20) പറമ്പിലെ6 ജമ ലെമ(cid:20)ിൽ ലെമപ്പടി പള്ളിക്കു ലെവണ്ടി എൻ്ലെറ ലെപരിൽ തിരിപ്പാ൯ ഇലെതാടുകൂടി ഹരജി വേബാധിപ്പാനും നിശ്ചയിച്ചും ലെമ(cid:20)്‌പറഞ്ഞ സംഗതികൾ എല്ലാം സമ്മതിച്ചും ഇതിൽ ഒപ്പിട്ടിരിക്കുന്നു" Therefore, it is clear that, in the year 1938 though the mosque was constructed, no CRP(WAKF) Nos.5/2022, 11/2021 -28- Manager was appointed by the karanavans and therefore, the waqif decided to effect mutation in favour of the mosque and he himself was the representative of the mosque. This fact can be seen further in the first page of the document itself that “" കുഞ്ഞാഹമ്മത ഹാജിയായ ഞാൻ ലെമപ്പടി വേദശത്തുള്ള ലെകാടക്കല്ലുങ്ങൽ ജുമായത്ത പള്ളിക്ക് വേവണ്ടി എലെ6 മുവേTന എഴുതിലെവ= ഒTഫാധാരം" The waqif himself received the property dedicated as waqf on behalf of the mosque. In this document also, there was no reference to the rule of succession of mutawalliship. The role of karanavans in the administration of the waqf was also not mentioned in the waqf deed No.376/1938.”

18. Thus, we are of the view that the party cannot be permitted to re-agitate the issue time and again when the matter in contoversy had already been put to rest in the previous round of litigation as it is in that background the legislature had carved out the provisions of Section 11 of the CPC i.e., doctrine akin to res judicata. Accordingly, we uphold the findings of the tribunal viz-a- viz the fact that both the registrations CRP(WAKF) Nos.5/2022, 11/2021 -29- contained a different set of properties and have no connection. Accordingly, CRP No.5 of 2022 is dismissed.

19. Coming to CRP No.11 of 2021 visa-vis challenge to the findings rendered in paragraph Nos.25 and 33, whereby the tribunal in our considered view exceeded jurisdiction in commanding the wakf board to undertake the task of framing the scheme as provided under Section 63 of the Act in fact it tantamount to usurping the power of the wakf board which is totally against the ratio decidendi culled out in paragraph Nos.27 and 28 of the judgment in M.P.Wakf Board (supra). The same reads as under: “27. The Wakf Act is a self-contained code. S.32 of the 1995 Act provides for powers and functions of the Board. Sub-section (2) of S.32 of the 1995 Act enumerates the functions of the Board without prejudice to the generality of the power contained in Sub-section (1) thereof. Clauses (d) and (e) of sub-section (2) of S.32 of the 1995 Act reads as under: “(d) to settle schemes of management for a wakf: CRP(WAKF) Nos.5/2022, 11/2021 -30- Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard; e) to direct (i) the utilisation of the surplus income of a wakf consistent with the objects of a wakf; (ii) in what manner the income of a wakf, the object of which are not evident from any written instrument, shall be utilized; (iii) in any case where any object of wakf has ceased to exist or has become incapable of achievement, that so much of the income of the wakf as was previously applied to that object shall be applied to any other object, which shall be similar, or nearly similar or to the original object or for the benefit of the poor or for the purpose of promotion of knowledge and learning in the Muslim community: Provided that no direction shall be given under this clause without giving the parties affected an opportunity of being heard. Explanation. For the purposes of this clause, the powers of the Board shall be exercised (i) in the case of a Sunni wakf, by the Sunni members of the Board only; and (ii) in the case of a Shia wakf, by the Shia members of the Board only: CRP(WAKF) Nos.5/2022, 11/2021 -31- Provided that where having regard to the number of the Sunni or Shia members in the Board and other circumstances, it appears to the Board that the power should not be exercised by such members only, it may co-opt such other Muslims being Sunnis or Shias, as the case may be, as it thinks fit, to be temporary members of the Board for exercising its powers under this clause;

28.The Tribunal had been constituted for the purposes mentioned in S.32 of the 1995 Act. It is an adjudicatory body. Its decision is final and binding but then it could not usurp the jurisdiction of the Board. Our attention has not been drawn to any provision which empowers the Tribunal to frame a scheme. In absence of any power vested in the Tribunal, the Tribunal ought to have left the said function to the Board which is statutorily empowered therefor. Where a statute creates different authorities to exercise their respective functions thereunder, each of such authority must exercise the functions within the four corners of the statute.”

20. At the best the tribunal could have directed the Board to take up the application pending consideration for giving nod to the resolution passed by CRP(WAKF) Nos.5/2022, 11/2021 -32- the members of the mosque appointing B.K.Kunhumuhammed as mutawalli in accordance with law i.e., Section 37 and 63, 3(k) of the Act. The conceded position on record as far as the question with regard to the appointment of mutawalliship is that the deeds of 1933, 1938, 1957 and 1958 do not envisage conferment of mutawalliship on the basis of succession. In other words, founder did not while dedicating the property confer the powers of mutawalliship on the basis of succession. In the absence of the same, it has to be through a proper procedure prescribed under Sections 63 and 37 in view of ratio decidendi culled out in paragraphs 12, 13, 17 and 26 of Kunhikoyamutty T.P. and Another (supra). The same reads as under: “12. Section 37 of the Waqf Act deals with register of auqaf. By the Waqf (Amendment) Act, 2013 Section 37 was numbered as sub- section (1) thereof. As per sub-section (1) of Section 37, the Board shall maintain a register of auqaf which shall contain in respect of each waqf copies of the waqf deeds, when available, and the particulars enumerated under clauses CRP(WAKF) Nos.5/2022, 11/2021 -33- (a) to (f) thereof. Going by clause (c) to sub- section (1) of Section 37, such particulars shall include the rule of succession to the office of mutawalli under the waqf deed or by custom or by usage. Section 63 of the Waqf Act, which deals with the power of the Board to appoint mutawalli in certain cases provides that, when there is a vacancy in the office of the mutawalli of a waqf and there is no one to be appointed under the terms of the deed of the waqf, or where the right of any person to act as mutawalli is disputed, the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit.

13. A conjoint reading of Sections 3(i), 32(2)(g), 37(1)(c) and 63 of the Waqf Act, 1995 makes it explicitly clear that, if the waqf is created by a deed or instrument, the rule of succession to the office of mutawalli provided in such deed or instrument should be followed while making appointment to that office. Clause (c) to sub- section (1) of Section 37, indicates that, the rule of succession to the office of mutawalli shall be governed by the provisions under the waqf deed and, in the absence of any provisions under such deed or instrument, the office of mutawalli may become hereditary by custom or usage. Further, it is evident from a plain reading of Section 63 that, the power of the Board to appoint mutawalli, when there is a vacancy in CRP(WAKF) Nos.5/2022, 11/2021 -34- the office of the mutawalli of a waqf, can be exercised only when there is no one to be appointed to that office under the terms of the deed of the waqf or where the right of any person to act as mutawalli is disputed. xxxxxxxxxx xxxxxxxxxx

17. In the light of the above discussions and the law laid down in the decisions referred to supra, we have no hesitation to hold that, though Muslim Law does not recognise any right of inheritance or rule of hereditary succession to the office of muthawalli, if the waqf is created by a deed or instrument, the rule of succession to the office of mutawalli provided in such deed or instrument should be followed while making appointment to that office. In the absence of any such provisions under a deed or instrument, the office of mutawalli may become hereditary by custom or usage. The power of appointment of mutawalli by the Board, as contemplated by Section 42 of the Wakf Act, 1954 or Section 63 of the Waqf Act, 1995 is not a regular appointment of a mutawalli, which power can be exercised only when there is no one to be appointed to that office under the terms of the deed of the waqf or where the right of any person to act as mutawalli is disputed. CRP(WAKF) Nos.5/2022, 11/2021 -35- xxxxxxxxx xxxxxxxxxx

26. The decision of the Division Bench in Badagara J.P.D. Committee's case (supra) was under challenge before the Apex Court in Civil Appeal No.1864 of 2003. The Apex Court allowed the said Civil Appeal by its decision in Sayed Muhammed Mashur Kunhi Koya Thangal v. Badagara Jumayath Palli Dharas Committee [2004 (7) SCC 708], by setting aside the impugned judgment, except the direction given to the Waqf Board to act under Section 63 of the Waqf Act and the suit filed by the plaintiff committee was dismissed. The Apex Court noticed that, neither there was pleadings specifically in the plaint to the effect that the plaintiff committee was actually acting as a mutawalli to come within the scope of Section 3(f) of the Wakf Act, 1954 nor acceptable and sufficient evidence was placed on record to prove it as a fact. The Apex Court held that, when the plaintiff committee came forward specifically pleading that it was entitled for declaration of title and for recovery of possession of the plaint schedule property based on Ext.A2 agreement dated 13.2.1973 it could succeed only on the basis of validity of Ext.A2 and the validity of transfer of mutawalliship in its favour. Since all the courts have CRP(WAKF) Nos.5/2022, 11/2021 -36- concurrently found that mutawalliship could not be validly transferred in favour of the plaintiff committee under Ext.A2, the suit filed by the plaintiff committee ought to have been dismissed. The plaintiff committee could only succeed on the strength of its case and not on the weakness found in the case of the defendants. Though the judgment of this Court in Badagara J.P.D. Committee's case (supra) was set aside on other grounds, on the question of transfer of mutawalliship, the Apex Court affirmed the view of this Court and the finding of the courts below that a mutawalli has no power to transfer the office to another, unless such a power is expressly conferred upon him by the founder. ”

21. There is a provision for appointment by the adult members as mutawalli. But in our considered view it will be the domain of the wakf board to consider the same under the provisions of 37 and 63 of the Act in terms of the ratio decidendi culled out in the aforecited judgments. Accordingly, we set aside the findings of the tribunal rendered in paragraph No.25 and 33 viz-a-viz the directions to the board for framing of the scheme and allow C.R.P.11 of 2021 with the following directions: CRP(WAKF) Nos.5/2022, 11/2021 -37- (1) The Wakf board shall take up and process the application submitted by B.K.Kunhumuhammed for recording him in the records of the Board as a mutawalli in terms of the resolution dated 25.11.2013 of the elder members of the Juma masjid and also the certificate of the village officer and all other documents which the petitioner B.K.Kunhumuhammed in support of his claim may rely or file. (2) While doing so the board shall take into consideration the provisions of section 3(k) of the Act by publishing the notice in the locality where the properties are situated for inviting objections, if any, and deal with the same, in accordance with law. (3) The aforementioned directions will not preclude the individual members who have been offering prayers or undertaking the classes in Madrasa of the Sangam to object individually, but not the managing body or members of the Sangam. In other words, they are debarred to do so. We are sanguine of the fact that CRP(WAKF) Nos.5/2022, 11/2021 -38- the Board will take a call to comply with the directions as expeditiously as possible. Sd/- AMIT RAWAL JUDGE Sd/- EASWARAN S. JUDGE CRP(WAKF) Nos.5/2022, 11/2021 -39- APPENDIX OF CRP(WAKF) 5/2022 PETITIONER ANNEXURES ANNEXURE 1 ANNEXURE 2 ANNEXURE 3 ANNEXURE 4 TRUE COPY OF THE COMPLAINT DATED 20/9/2021 FILED BY THE PRESIDENT OF THE WAKF PROTECTION COMMITTEE, TIRURANGADI BEFORE THE DIVISIONAL OFFICER, KERALA STATE WAKF BOARD OFFICE, MANJERI. TRUE COPY OF THE COMPLAINT FILED BY 26 MAHAL MEMBERS OF KODAKKALLU MAHAL BEFORE THE DIVISIONAL OFFICE OF THE 2ND RESPONDENT WAKF BOARD, MANJERI DATED 28/10/2021. TRUE COPY OF THE MEMO NO.A8.7019/CR DATED 01/12/2021 ISSUED BY THE DIVISIONAL WAKF OFFICER,MANJERI. TRUE COPY OF THE ENQUIRY REPORT NO.A8.7019/CR DATED 27/12/2021 SUBMITTED BY WAKF INSPECTOR, SRI.K.K.SHEIK NAVEED.