Judgment :- 1. Both the Writ Petitions have been filed by the same petitioners. In the first one, the petitioners seek to quash an order of the Tamil Nadu Wakf Board dated 8th March 1975 in I.A. No. 6 of 1972 in W.A. No. 10 of 1972. In the other, the petitioners have prayed for a writ of prohibition prohibiting the Wakf Board from proceeding further with W.A. No. 10 of 1972. Since both the petitions relate to the proceedings in W.A. No. 10 of 1972 pending before the Wakf Board and are based on the same facts, they are dealt with together. 2. Respondents 2 to 6 in both the writ petitions had filed the application in W.A. No. 10 of 1972 before the Tamil Nadu Wakf Board, the first respondent in both the writ petitions, purporting to be under Ss. 15, 43 and 44 of the Wakf Act to remove the petitioner from management of the properties mentioned in the application, and to settle a scheme for the proper administration of the Wakf known as “Madrasa-dul-Mahmudia, Aravakurichi”, and for certain other reliefs. The petitioners who claimed to be the de scendants of the Wakif in management of the Wakf ever since the death of the wakif, raised a contention that respondents 2 to 5 are not entitled to maintain an application under S. 44 of the Wakf Act and that, therefore, the application filed by respondents 2 to 5 which is mainly under S. 44 cannot be maintained. 3. The said point was considered by the Wakf Board as a preliminary issue and was rejected by its order dated, 8th March 1975, with the following observation; “Preliminary objection on “person interested” over-ruled and the main petition to be taken on 26th April 1975.” The petitioners seek to challenge the validity of the said order in the first writ petition and they also seek a Writ of Prohibition prohibiting the Wakf Board from proceeding further with the enquiry in W.A. No. 10 of 1972 cannot legally be maintained by respondents 2 to 5. If the petitioners contention that respondents 2 to 5 cannot maintain the petitions accepted, then the petitioners will succeed in both the writ petitions. Therefore, the main question is whether the application in W.A. 10 of 1972 filed by respondents 2 to 5 before the Wakf Board is maintainable. 4. If the petitioners contention that respondents 2 to 5 cannot maintain the petitions accepted, then the petitioners will succeed in both the writ petitions. Therefore, the main question is whether the application in W.A. 10 of 1972 filed by respondents 2 to 5 before the Wakf Board is maintainable. 4. The undisputed facts of this case are that the petitioners ancestor, one Kadar Mohideen Rowther, created a Wakf in the year 1908 dedicating about 100 acres of lands and some shop buildings situate in the village of Aravakurichi for running a school for religions instruction established by him in the same village, for providing books to poor students of the said school, for providing funeral expenses of the poor, for meeting the expenses of Haj Pilgrims, for giving alms to the poor fakirs during Ramzan and for Providing the marriage expenses of poor girls etc., that those Wakf properties are in management of the petitioners herein and the 6th respondent. There is of course controversy between the parties as to whether the objects of the wakf are being carried out by the petitioners or not. Respondents 1 to 5 filed the above application before the Wakf Board complaining that the petitioners are not performing any of the objects set out in the Wakf deed, that they are misappropriating the funds and income of the Wakf, that therefore should be removed from the management of the properties and a scheme for the proper management of the Wakf should be settled, and that the petitioners should be called upon to account for the income and expenditure of the Wakf at least for 12 years preceding the date of the application and to deposit the amount found due from them to the account of the Wakf. The said application has been filed under Ss. 15, 43 and 44 of she Wakf Act. In their application respondents 2 to 5 had claimed that the muslim public and in particular the muslims of the village are the beneficiaries under the Wakf, that one of them is the president of the Jumma Mosque of the same village and another is the Member of the managing committee of that mosque and that therefore, they are entitled to complain about the non-performance of the charities. 5. 5. The petitioners, however, resisted the said application contending inter alia , that respondents 2 to 5 herein have no locus standi to file an application before the Wakf Board under S. 44 and that, therefore, the application filed by them was not maintainable in law. According to the petitioners, respondents 2 to 5 who filed the application in W.A. 10 of 1972 before the Wakf Board are not persons interested in the Wakf as defined in S. 3(h) of the Muslim Wakf Act, 1954. This objection taken by the petitioners as to the maintainability of the application had been rejected by the Wakf Board. 6. The petitioners contend that the order passed by the Wakf Board is vitiated in that it is not a speaking order and that in any event in view of S. 44 read with the definition of “persons interested in the Wakf” contained in S. 3(h), the said application, W.A. 10 of 1972 should have bees rejected as not maintainable. Thus, the controversy between the parties is as to the scope of S. 44 read with the definition of “persons interested in the Wakf” contained in S. 3(h) of the Act. S. 44 is as follows: Application for inquiry—Any person interested in a Wakf may make an application to the Board supported by an affidavit to institute an enquiry relating to the administration of the Wakf and if the Board is satisfied that there are reasonable grounds for believing that the affairs of the Wakf are being mismanaged, it shall take such action thereon as it thinks fit.” The words “any person interested in a Wakf” occurring in the above section have been defined in S. 3(h) as follows: “person interested is a Wakf” means any person who is entitled to receive any pecuniary or other benefits from the Wakf and includes: (i) any person who has a right to worship or to perform any religious rite in a mosque, idgah imambare, dargab, khangab, mambara, graveyard or any other religious institution conceded with the wakf or to participate in any religious or charitable institution under the wakf. (ii) the Wakif and any descendant of the wakif and the mutawalli...” The said definition takes in all persons who are entiled to receive any pecuniary or other benefits from the Wakf and all persons who have a right to worship or to perform any religious rite in a mosque etc., or any other religious institution connected with the Wakf or to participate in any religious or charitable institution under the Wakf. Though an attempt was made by the learned counsel for the Wakf Board and respondents 2 to 5 to bring respondents 2 to 5 in the inclusive portion of the definition, that attempt was later given up when it was found that the inclusive portion of the definition refers only to persons who have a right to worship or to perform any religious rite, or to participate in any religious institution under the Wakf Deed. No religious institution in which any one can claim a right to worship or to perform any religious rite or to participate had been created under the Wakf Deed. Therefore, the learned counsel for respondents 1 to 5 mainly contended that respondents 2 to 5 will come under the definition of persons interested as persons entitled to receive benefits from the wakf. As already stated, the case of respondents 2 to 5 before the Wakf Board was that they are the residents of the village wherein the Madrasa has been established by the founder and the other charitable objects are to be performed as per the directions of the founder. They have also claimed to be in management of another muslim institution, namely Jumma mosque in the same village. However after the matter came to this court, respondents 2 to 5 have stated in their counter affidavit that they filed the application in a representative capacity on behalf of the muslim residents of the village who are persons interested in the wakf, that in any event the Wakf deed itself gives the Muslim residents of the village a right to move the court in case the descendants of the wakif either fail to perform the objects mentioned in the Wakf Deed or misuse or misappropriate the income from the wakf or the wakf is not properly administered and that, therefore, all the muslim residents in the village should be taken to be persons interested in the Wakf. 7. 7. S. 92 of the C.P.C., which is an analogous provision uses the words “persons interested in the trust” as in S. 44 of the Wakf Act. S. 92 of the C.P.C., 1908 was first enacted as S. 539 of the Code of 1877. S. 539 was modelled as regards the right of suit on the provisions of Sir Samuel Romillys Act. Before that Act, the Attorney-General representing the Crown as Parens Patrise was alone entitled to proceed by way of information, ordinarily in the court of Chancery, for the enforcement of charitable trust and this he usually did only on the relation of private persons who gave security for the costs. When however, the Romiliys Act authorised any two or more persons to proceed by petition under that Act with the authority of the Attorney General, it was ruled by Lord Eldon in re: Bedford Chartties (1819 2 Swans 470, one of the earliest cases, that no person could petition who had not “a direct interest” in the Charity. In Luele (Corporation of) v. Greenhouse (1927) I Eligh. N.S. 17-91 Lord Eldon again observed that the court was bound to take care “that the petitioners have a clear interest in the subject.” In Jan Ali v. Ramanath Mundal I.L.R. 8 Cal. 32 certain Mohomedans residing in a village who were in the habit of attending the prayers at the mosque there were held to have no direct interest in the endowment of the Mosque within the meaning of S. 539 of the Code of 8877 which used the words “direct interest in the Trust”. As the effect of the said decision was to make the section to a large extent a dead letter as regards temples and moues, the legislature thought fit to indicate the necessity for a more liberal construction by deleting the word “direct” from S. 539 in 1887. 8. The scope of S. 92 came up for consideration before the Full Bench in Ramachandara Iyer v. Parameswaram Munbu 36 M.L.J. 393; 9 L.W. 492 and the question before the Full Bench was whether a suit instituted under S. 92 of the C.P.C., with respect to a temple in North Malabar is maintainable by a member of Dharma Raksha Sabha located at Madras, whose object is to institute suits for the protection and due application of the Hindu Religious Endowments. When the same matter was before a Division Bench earlier, Wallis, C J., expressed the view that though Hindu temples can prima facie be taken as having been dedicated for the use of all Hindus resorting to them, a mere right to worship in Hie temple can no the taken as indicating his interest in the trust and that any other conclusion would defeat the object with which the Legislature inserted the words in S. 92, the object being to prevent people interfering by virtue of the Section in the administration of the charitable trust merely in the interest of others and without any real interest of their own. Kumaraswami Sastri, J. was, however, of the view that the right to worship in a particular temple is a sufficient interest in the temple to entitle a person to join in a suit under S. 92. On a Letters Patent Appeal, the matter came before a Full Bench consisting of Abdor Rahim, Old field and Courts Trotter, JJ. Old field and Courts Trotter, JJ. in their majority judgment held that the interest contemplated by S. 92 of the C.P.C., is a present and substantial interest and not a remote and fictitious or purely illusory interest, and that a Hindu having a mere right to worship at a temple is not by reason of that alone, without more, competent to institute a suit for a scheme under S. 92. Abdur Rahim, J. in his minority judgment, however, held that in the case of a Hindu temple or a Mohamedan Mosque persons resorting to them for the purpose of worship are presumably beneficiaries intended by the founder and that such persons have an interest in the institution so as to enable them to invoke S. 92. In Md. Khan Sahib v. Kadir Batcha A.I.R. 1926 Mad. 466, Odgers and Madhavan Nair, JJ. In Md. Khan Sahib v. Kadir Batcha A.I.R. 1926 Mad. 466, Odgers and Madhavan Nair, JJ. held that in order to entitle a plaintiff to see under S. 92 he must have a clear interest in the particular trust over and above that which the general public has, that the words “interest in trust” must mean a present and substantial interest arising from some special relation in which the plaintiff stands to the trust in question as compared with the body of the religious community, and that though proof of residence in the neighborhood of the institution may be relevant on the ground that those who live near to the Institution will be most likely to he benefited by the institution, that is not conclusive. The Judicial Committee in Vydianatha Ayyar v. Swaminatha Ayyar I.L.R. 47 Mad. 884; 20 L.W. 803: (P.C.), however, felt that Muhammadans who worship regularly in a mosque in a village had a direct interest in the trust relating to the mosque though a hare possibility may not clothe them with an Interest fat the trust. 9. In Harnam Singh v. Gurdial Singh , A.I.R. 1967 S.C. 1415 the Supreme Court had to consider whether the plaintiffs belonging the Sikh religion but residing in the same village can file a suit under S. 92 of the C.P.C., in relation to a non-sikh institution running a free kitchen and serving free food to visitors. It had been urged on behalf of the plaintiffs that as residents of the village where the food is served free, they have got an interest in the institution so as to enable them to file a suit under S. 92. Dealing with that contention the Supreme Court held, after referring to the judgment of the Full Bench in Ramachandra Aiyar v. Paramesmra Unni I.L.R. 42 Mad. 360 and the decision of the Privy Council in Vydianatha Aiyar v. Swaminatha Ayyar I.L.R. 47 Mad. 834; 20 L.W. 803 (P.C.), that the plaintiffs as residents of the village had no such interest as could entitle them to institute the suit. 360 and the decision of the Privy Council in Vydianatha Aiyar v. Swaminatha Ayyar I.L.R. 47 Mad. 834; 20 L.W. 803 (P.C.), that the plaintiffs as residents of the village had no such interest as could entitle them to institute the suit. In a recent decision of this court in C. Kalahastl v. V.R. Sukhantharaj 88 L.W. 577, the learned Chief Justice speaking for the Bench expressed the view that persona figuring as plaintiffs in a suit filed under S. 92 must have an interest, special or peculiar as distinct from the generality of the interest which the public may have in the trust and that to hold that any member of the public having an indirect connection or relationship with the institution is a person having interest in the trust would dilute the requirements of S. 92. In the light of these decisions it has to be found whether respondents 2 to 5 herein are persona interested as defined in S. 3(b) of the Act. 10. If there had been no definition of ‘a person interested in the Wakf’ as in S. 3(h), it would be possible to hold that respondents 2 to 5 have a real and distinct interest in the Wakf so as to entitle them to invoke S. 44 of the Wakf Act. But the said definition section appears to be restrictive in nature and unless a person cornea under the definition, he is not entitled to invoke S. 44. As already stated, respondents 2 to 3 claim they are entitled to certain benefits from the Wakf, though those benefits are not pecuniary. The words “person who is entitled to receive any pecuniary or other benefits” used in S. 3(h) can in my opinion only refer to the persons who have been given pecuniary or other benefits under the Wakf deed which they could claim as of rights. Respondents 2 to 5 claim to be entitled to the benefits from the Wakf merely because they are residents of the village where the Madrasa has been established. The fact that the residents can send their children to the Madrasa if a Madrasa is being run in pursuance of the Wakf deed will not entitle them to claim that facility as of right under the Wakf deed. The fact that the residents can send their children to the Madrasa if a Madrasa is being run in pursuance of the Wakf deed will not entitle them to claim that facility as of right under the Wakf deed. The further fact that the may have derived some benefit if the Wakf properties are properly maintained and the charitable objects mentioned in the Wakf deed had been properly carried out, will not mean that they are entitled to those benefits under the Wakf deed as of right. The fact that some of the respondents are connected with the management of another Mosque in the same village will not also enable them to claim interest in the Wakf properties as they had nothing to do with the said mosque. The further fact that the muslim residents of the village have been given a right to approach the court in case of misappropriation or maladministration of the Wakf properties under the terms of the Wakf deed will not also make them beneficiaries under the Wakf deed. The right to move the court given under the Wakf deed to a resident of the village cannot be termed as a benefit flowing from the Wakf deed. In my view, therefore, respondents 2 to 5 cannot file an application under S. 44 as persons interested in the Wakf. This, however, will not mean that the Wakf Board cannot initiate suo motu proceedings under S. 45 on the basis of the materials now available before it. 11. The learned counel for the Wakf Board and respondents 2 to 5 point out that the application W.A. 10 of 1972 had been filed not only under S. 44 but also under Ss. 15 and 43. But the reliefs claimed by them under Ss. 15 and 43 are not possible of grant unless it is preceded by an enquiry under S. 44 which disclose that the affairs of the Wakf are being mismanaged. I have to, therefore, hold that the application filed by respondents 2 to 5 in W.A. 10 of 1972 cannot be maintained. Both the writ petitions are, therefore, allowed. There will, however, be no order as to costs. 12. I have to, therefore, hold that the application filed by respondents 2 to 5 in W.A. 10 of 1972 cannot be maintained. Both the writ petitions are, therefore, allowed. There will, however, be no order as to costs. 12. It is, however, made clear that it is open to the Wakf Board to initiate proceedings under S. 44 on the basis of the materials on record for the proper management of the Wakf properties, and if it is found that the affairs of the Wakf are being mismanaged by the petitioners herein, it can take such action as it thinks fit including the action contemplated under Ss. 15 and 43 of the Act.