HAJI ABDULLA HAJI ADAM SAIT TRUST v. HAMEED — 1987 DIGILAW 567 (KER)

Judgment :- 1. The plaintiff is the appellant. The appeal is directed against the judgment and decree of the 1st Additional Subordinate Judge, Ernakulam, dismissing OS No. 258 of 1983 instituted by the appellant, seeking eviction of the respondent from the plaint schedule building and for arrears of rent. 2. Essential facts lie in a narrow compass: The plaintiff is a charitable trust. It has been registered under S.25 of the Wakf Act, 1954, at the office of The Kerala Wakf Board. The plaint schedule building belongs to the plaintiff trust. The defendant took the building on lease, on a rental of Rs.400/-, to be paid on the 4th day of every English Calender month. Subletting is prohibited. The defendant is carrying on hotel business in the building, in the name and style of Cochin Refreshment House. As the trust required the building for its own use, the suit for recovery of possession of the building was filed. The building is exempted from the purview of the Kerala Buildings (Lease And Rent Control) Act, Act 2 of 1965 as is seen from the notification issued by the State Government in that regard. Before filing the suit the tenancy had been terminated by notice. The defendant had kept the rent in arrears. The suit thus was for recovery of possession of the building with arrears of rent. The defendant filed a written statement raising various contentions. 3. The trial court after considering the various aspects of the case, has answered all the issues except the additional issue namely, whether the suit by the Mutawalli is maintainable in view of S.15(2)(i) of the Wakf Act, in favour of the appellant-plaintiff. The suit accordingly was found to be not maintainable and this resulted in the dismissal of the suit. 4. The only dispute that survives for consideration in the appeal therefore is the one highlighted by the additional issue. 5. The answer to the question covered by the additional issue, depends upon the construction of S.13(2)(i) of the Wakf Act. The Section reads: "15. (1) (2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be (1) to institute and defend suits and proceedings in a court of law relating to wakfs; This section, apparently vests the power to institute and defend suits and proceedings in a court of law relating to wakfs. in the Wakf Board. (1) (2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be (1) to institute and defend suits and proceedings in a court of law relating to wakfs; This section, apparently vests the power to institute and defend suits and proceedings in a court of law relating to wakfs. in the Wakf Board. That means suits and other proceedings in a court of law relating to wakfs can be instituted or defended only by the Wakf Board. This is the argument advanced by the learned counsel for the defendant. This argument at the first blush is attractive, but on a deep probe into the scheme of the Wakf Act, it can be seen that the said argument is without substance. 6. The Wakf Act, as is seen from the preamble, is an Act meant for the better administration and supervision of wakfs. With this object in view, the State Government have constituted the statutory authority, the Wakf Board having the power of superintendence and control over the administration or management by the functionary who is managing the affairs of the Wakfs. The Act does not take away the pre-existing right of administration vested in the said functionary. The said right of administration no doubt, is circumscribed by the provisions conferring powers on the Wakf Beard to interfere with the management or administration. In fact the rights of the functionary who is managing the affairs of the Wakfs at the time of the coming into force of the Act, have been saved by the Act itself. A reference in this connection to S.15(1) of the Act and the proviso thereto is relevant. In fact the rights of the functionary who is managing the affairs of the Wakfs at the time of the coming into force of the Act, have been saved by the Act itself. A reference in this connection to S.15(1) of the Act and the proviso thereto is relevant. This Section with the proviso reads: "15(1) Subject to any rules that may be made under this Act, the general superintendence of all wakfs in a State shall vest in the Board established for the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such wakfs were created or intended: Provided that in exercising Its powers under this Act in respect of any wakf, the Board shall act in conformity with the directions of the wakf, the purposes of the wakf and any usage or custom of the wakf sanctioned by the Muslim law." 7. It is clear from this provision that the general power of superintendence of all wakfs in the State is vested in the Wakf Board. In the exercise of the general power of superintendence the Board however cannot act whimsically; nor can it act in utter disregard of the rights of the functionary who is managing the affairs of the Wakfs, recognised under the Muslim personal law. The object with which this right of superintendence is vested in the Board is only to ensure that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects, and for the purposes for which such wakfs are created or intended. The said general power of superintendence can be exercised only with due regard to and in conformity with the directions of the wakfs, the purposes of the wakf and any usage or custom of the wakf sanctioned by the Muslim law. The proviso so provides. To put it differently, the proviso aforesaid saves the pre-existing rights of the functionary who is in management of the wakfs. The proviso also saves the conditions or requirements that should be fulfilled and which are stipulated by the wakf, creating the wakf either by deed or otherwise. The proviso so provides. To put it differently, the proviso aforesaid saves the pre-existing rights of the functionary who is in management of the wakfs. The proviso also saves the conditions or requirements that should be fulfilled and which are stipulated by the wakf, creating the wakf either by deed or otherwise. Considering the scope of the proviso one of us (Kochu Thommen, J.) has held thus in Adam Aboobacker Sait v. Kerala Wakf Board And Others (1982 KLT 823): "The proviso to S.15(1) is a significant and important guide to the nature and scope of the Board's powers and functions. This proviso, in my view, is a proviso to the entire Act, and not to one section alone, for its ambit is not confined to S.15(1). Whatever power or function the Board would exercise under the Act must be exercised in conformity with the directions of the wakf and the objects of the wakf. as well as the usage and custom of the wakf sanctioned by Muslim law. This is a basic norm which the Board has to bear in mind In the exercise of its statutory functions. It is with reference to this proviso that the provisions of the Act have to be understood". 8. The above view is consistent with the ratio legis discernible from the various provisions of the Act. 9. Under Mahomedan Law the functionary in management of a wakf is called Mutawalli. The Mutawalli, though not a trustee in the true sense of the term is still bound by the various obligations of a trustee. The person appointed as the Mutawalli takes over the management of the wakf. He inter alia, has the power to sue for possession, though the property is not vested in him. (See Principles of Mahomedan law, Mulla, 17th edition page 202 and AIR 1939 PC 185). Although the Mutawalli is not a trustee in the sense in which that expression is used in English law, he has duties mare akin to these of a trustee and therefore he cannot advance his own interest or the interest of his close relations by virtue of the position held by him. For instance if he uses the funds of the wakf for acquisition of property in the name of his relations, it would amount to a breach of trust and the property thus acquired would be treated as wakf property. For instance if he uses the funds of the wakf for acquisition of property in the name of his relations, it would amount to a breach of trust and the property thus acquired would be treated as wakf property. These rights and obligations of the Mutawalli who is the functionary entrusted with the management of the wakf under Mahomedan law, are saved by the proviso to S.15(1). 10. In addition, the statute has conferred specific power on the Mutawalli to institute suits in respect of Wakf properties. A reference in this connection to S.6, 57(1) and 60 is relevant. Under S.6 the Mutawalli has the right to institute a suit in a civil court of competent jurisdiction to have the question, whether a particular property is a wakf property or not, decided, although the said suit shall be filed within one year from the date of the publication of the list of wakfs under sub-s. (2) of S.5. S.57 provides that in a suit or proceeding initiated by the Mutawalli or any other interested person and relating to a tittle to wakf properties the Board shall be informed of the said suit by issue of notice, at the cost of the party instituting the suit. S.60 impliedly recognises the right of the Mutawalli to file suits relating to title to wakf properties; but in order to compromise such suits sanction of the Board is necessary. It is therefore clear that the Legislature intended to retain the right of the Mutawalli to institute suits in respect of the wakf properties with a view to protect the same. S.36, 36B or any other sections in Chapter VI of the Wakf Act do not militate against the above view. S.36 has imposed certain additional duties on the Mutawalli. The other sections highlight the circumstances under which the Board or the Government as the case may be, can interfere with the administration and management of the wakf and its properties by the Mutawalli. That is all. In this view, we are supported by a decision of the Gujarat High Court, in Syed Khersha Sajanshah Mutvalli v. Bhuj Municipality (AIR 1986 Guj.1). With respect we agree with the views expressed by the Gujarat High Court in the said decision. 11. That is all. In this view, we are supported by a decision of the Gujarat High Court, in Syed Khersha Sajanshah Mutvalli v. Bhuj Municipality (AIR 1986 Guj.1). With respect we agree with the views expressed by the Gujarat High Court in the said decision. 11. The power conferred on the Wakf Board by S.15(2)(i), considered in the light of the principle highlighted above, we have no hesitation to hold, is not on absolute power. This power is subject to and without prejudice to the generality of the powers highlighted in S.15(1) and the proviso thereto. 12. To sum up: in exercise of its powers under S.15(1) in respect of any wakf, the Board shall act in conformity with the directions of the wakf, the object with which the wakf was created, any usage or custom of the wakf sanctioned by the Muslim Law and also in recognition of the special provisions conferring authority on the Mutawalli to file suits and proceedings in courts in respect of wakf properties. 13. The court below however relying on a decision of the Patna High Court in Maulvi Reza Ansari and others v. Shyamlal Sah and others (AIR 1983 Patna 299) has held that the suit, inasmuch as the same has not been filed by the wakf Board, is net maintainable. It is true that the Patna High Court has held so. The court has held thus: "There is nothing in the Act which empowers a Mutawalli to institute and defend suit and proceedings in a court of law relating to wakfs on his own. This power is vested in the Board which is a corporate body which must sue and be sued in its own name." On a reading of this decision it would appear that the learned judges have not considered the scope of S.6,15(1) and the proviso thereto and S.57(1) and 60. The proviso, as already noted, has saved the pre-existing rights. S.6, 57(1) and 60 have conferred on the Mutawalli specific rights to institute suits in respect of the wakf properties. The power or function of the Board is circumscribed by the usage and custom governing the wakfs. Not only that, in the exercise of the power or functions under the Act, the Board shall have due regard to the directions of the wakf and the objects of the wakf. The power or function of the Board is circumscribed by the usage and custom governing the wakfs. Not only that, in the exercise of the power or functions under the Act, the Board shall have due regard to the directions of the wakf and the objects of the wakf. In short the visitorial power of the Board under the Act is not absolute. The Board in other words, has to exercise the said power in conformity with the directions of the wakf, the objects of the wakf as well as the usage and custom sanctioned by the Muslim Law in the administration of the wakf. We have already noticed that the Mutawalli has the right to file suit for possession though the property is not vested in him. He has also the right to file a suit for injunction and ward off trespasser He has the right to do every act including initiation of proceedings in a court of law to safeguard the wakf and its properties in the course of management. 14. With the principle enunciated by the Patna High Court, with respect, we cannot agree, 15. For the reasons stated above we are of the view that the suit from which the appeal arises is maintainable. The judgment and decree of the trial court therefore are liable to be set aside. We accordingly set aside the same and decree the suit as prayed for. The appeal is allowed with costs throughout.