Judgment : First defendant in O.S.No.905 of 1995 on the file of the Principal Munsif Court, Nagercoil is the appellant herein. 2. Suit filed by plaintiff was one for permanent prohibitory injunction restraining first defendant and his men from interfering with the peaceful possession and enjoyment and administration of plaintiff over plaint property in any manner and for incidental reliefs. 3. Plaint wchedule property is a wakf property and it is a private Wakf called ‘Sena Pillai Yusoof Saheb Wakf’ and the same is registered as G.S.34 kan before the Tamil Nadu Wakf Board. The Wakf was found by plaintiffs paternal grand father late Yusoof, son of Sena Pillai. He purchased the scheduled property in the name of the grand Muslim Saint Mohideen Andakai in the year 1936 and constituted himself as first mutawalli of the Trust. He was celebrating the birth anniversary of the said Mohideen Andakai and was observing and conducting the functions during his life time. 4. The founder Yusoof died about 53 years back and at the time of the death, he nominated his elder son Mohammed Kasim as mutawalli. He was asked to enjoy the plaint property during his life time and asked him to perform birth anniversary of Mohideen Andakai and was also asked Mohammed Kasim to perform annual Fateha’ (credital of prayer) for the welfare of his soul) regularly. It is further said that after his life time his elder son should take possession and enjoy the property and observe functions regularly. Tamil Nadu Wakf Board has notified the plaint property as wakf property and issued notice to plaintiffs father to submit the accounts for the charitable expenses. Plaintiffs father submitted the accounts and has also paid contribution to the Wakf Board. He died in the year 1990. Mohammed Kasim at the time of his death appointed plaintiff as next mutawalli, he being the eldest son. Ever since 1990, plaintiff is in enjoyment of the property and is performing two functions viz., the birth anniversary of Mohideen Andakai and the death anniversary of the founder. For the said purpose, he has taken possession of plaint properties. Appellant who is the first defendant in the suit is the brother of plaintiffs father and he is now putting forward a claim over plaint property as mutawalli. For the said purpose, he has taken possession of plaint properties. Appellant who is the first defendant in the suit is the brother of plaintiffs father and he is now putting forward a claim over plaint property as mutawalli. According to plaintiff, defendant is not entitled to any right and since he is in exclusive possession, first defendant is to be restrained by a decree for permanent prohibitory injunction from interfering with his right. It is also said in the plaint that even first defendant has any right over property, the same is also barred by limitation and adverse possession. 5. Along with the suit, plaintiff also moved an injunction application and obtained an order of interim injunction. 6. In the detailed written statement filed by first defendant he admitted that the plain property is a private Wakf and wakf is also founded by his father. But he denied the fact that late Yusoof has nominated plaintiffs father as mutawalli. According to appellant, even during the life time of Yusoof, he wanted to make arrangements for management of wakf and on his death, his widow along with plaintiffs father had executed an agreement making provisions of Management of Wakf property. A document was executed making provisions for the same on 24.9.1119 ME. As per the provisions of the deed. Yusoofs widow Thaha Beevi was to manage the Wakf during her life time and on her death, it has to be managed by plaintiffs father for a period of 7 years and thereafter by first defendant for another period of 7 years. The management will have to be taken up by them in turn. It is said that Thaha Beevi died in March, 1974 and plaintiffs father was discharging the duties as mutawalli till 1981. From April, 1981, appellant was performing his duties as mutawalli and whileso when he got a job abroad, he authorised his brother to discharge the duties as mutawalli. In view of the untimely death of Mohamed Kasim, i.e., plaintiffs father, he allowed plaintiff also to continue in possession till 7 year period is completed. The same was completed in the year 1995 and on 1.6.1995, he obtained possession of the property. The property which was in the hands of lessee was also realised and he also executed another lease in favour of a third person who has been examined as D.W.2. The same was completed in the year 1995 and on 1.6.1995, he obtained possession of the property. The property which was in the hands of lessee was also realised and he also executed another lease in favour of a third person who has been examined as D.W.2. According to him, on the basis of ex parte order of injunction, plaintiff attempted to interfere with his possession and has created documents. 7. On the above pleadings, trial court after taking evidence held that plaintiff is not entitled to any relief as per judgment dated 3.9.1997. Trial court held that as per Ex.B-1, the arrangement entered by plaintiffs father and his grandmother regarding management of the Wakf cannot be questioned by plaintiff. An argument was also taken before trial court that Ex.B-1 is not valid since a muslim woman has been appointed as mutawalli, trial court held that there is no prohibition in appointing a woman as mutawalli since no religious functions are to be discharged while performing the charity. It further came to the conclusion that all the documents produced by plaintiffs are only from 1988 and the same will not prove that his father was in possession for 48 years as contended by him. Trial court held that plaintiffs father could have acted as mutawalli only on the basis of arrangement in Ex.B-1. Case of defendant, that he has taken possession from the lessee was also found to be true and it is also found that appellant has again entered into lease arrangement with others and same is proved by Exs.B-3 and B-4. The suit was dismissed. 8. Aggrieved by the said judgment and decree, plaintiff preferred A.S.134 of 1997 on the file of Subordinate Judge, Nagercoil. Lower appellate court reappreciate the entire evidence and reconsidered the facts and finally allowed the appeal. Appellate court held that defendant has failed to prove that his mother was acting as mutawalli. It was also of the view that under normal circumstances female members are not allowed to act as mutawalli. Lower appellate court was of the view that since birth and death anniversaries will have to be conducted the same cannot be done without performing religious functions and consequently, Thahi Beevi would not have acted as mutawalli and the same is prohibited under muslim law lower court also rejected Ex.B-2 on the ground that the same is not prepared according to law. The suit was decreed. 9. It is against the said judgment first defendant has come to this court with this second appeal. 10. The following substantial questions of law have been raised in the memorandum of appeal; • 1. Whether the suit is maintainable. • 2. Whether the deed dated 24.9.1119 M.E. is valid in law. • 3. Whether a female can act as mutawalli. 11. Since caveat was entered by respondent I heard the second appeal itself and parties also produced documents relevant for the purpose of disposal of the second appeal. 12. The fact that the property is a private wakf is admitted. Property was purchased by plaintiffs grandfather who is none other than the father of appellant is also admitted. It is also admitted that private wakf is registered before the Tamil Nadu Wakf Board is also not a matter in dispute. Only question that is to be considered is whether plaintiff is entitled to get injunction preventing first defendant from interfering with the so called possession. 13. The claim of the plaintiff is based on the authority or on his appointmentas mutawalli by his father. Plaintiffs father died in the year 1990. It is the case of plaintiff that at the time of his death his father appointed him as mutawalli. Except for the interested testimony of plaintiff, we have absolutely no evidence to prove the same. The only other witness examined in the case is plaintiffs mother as P.W.2. 14. Appellant relies on Ex.B-2 to counted that immediately after the death of founder, of Wakf a registered agreement was executed between his mother and plaintiffs father. Appellant was also a party to the document and he was represented by his mother. Appellant was only 3 years old at that time and plaintiffs father was only 20 years old. Plaintiff was not born at that particular time. According to plaintiff, founder died about 53 years prior to the institution of suit. Ex.B-1 is also executed immediately after the death of founder. In Ex.B-2, private wakf is registered and reference is made to Ex.B-1. Names of mutawalli and of succession is also stated in Ex.B-2. 15. Ex.B-1 is written both in Malayalam and Tamil Language, circumstances under which document had to be executed has been narrated in the preface of the document. Ex.B-1 is also executed immediately after the death of founder. In Ex.B-2, private wakf is registered and reference is made to Ex.B-1. Names of mutawalli and of succession is also stated in Ex.B-2. 15. Ex.B-1 is written both in Malayalam and Tamil Language, circumstances under which document had to be executed has been narrated in the preface of the document. It refers to the private trust created by first executants husband and why the property itself was purchased. It also refers to the charity performed by late Yusoof after having purchased the property. He further says that after his death the members of family thought that some arrangement will have to be made for the management of wakf and that will be beneficial to the family. It further provides that Thagha Beevi, Widow of founder will perform the charities during her life time and on her death, charities is to be performed by elder son of Mohammed Kasim, who is plaintiffs father. He has to perform charity for 7 years and thereafter it has to be taken over by the first defendant. They had to manage the charity by turn. What are the matters to be performed is also stated in the document under the heading In the earlier portion it says that mother and two sons have to act as mutawalli without alienating and encumbering the property and by paying tax. It further says that this charity will have to be performed or directed to be performed. 16. From a reading of this document it is clear that the charities could be performed or could be entrusted to others to see that it is performed. Further it is clear from the document that the main purpose is only to give food during the birth and death anniversary of two persons mentioned in the document. No religious function is directed to be performed and it is only charity was feeding the poor, was directed to be performed under the document. On the basis of document, for the purpose mentioned above, we have to consider whether females could be excluded from acting as mutawalli. 17. Asaf A.A.Fysee is his book Outlines of Muhammdan Law (3rd Edition 1964) at page 304 of the text has stated thus. “It may be said generally that every sane adult is entitled to be a mutawalli, unless there is a specific bar. 17. Asaf A.A.Fysee is his book Outlines of Muhammdan Law (3rd Edition 1964) at page 304 of the text has stated thus. “It may be said generally that every sane adult is entitled to be a mutawalli, unless there is a specific bar. It is well-settled that the following can legally act as mutawallis; (i) the founder himself (wakf) (ii) his children, (iii) women (iv) non-muslims; (v) sunnites in a shite wakf and vice versa. Minority and unsoundness of mind are positive disqualifications; in Pakistan it has been held that a minor can be appointed a mutawalli, if the office is declared to be hereditary, And as regards, women, their Lordships of the Privy Council have ruled that sex is no bar in case where no religious duties have to be performed but aliter, if religious duties or spiritual functions are part of the duties of a mutawalli, and in such cases, a female or a non-muslim cannot act as a Sajjada-nashin, kahatib, mujawar of a dargah, or an imam of a mosque.” 18. Mulla on Principles of Mohamedan Law, (18th Edition, 1977) at page 228 considered this question of lineal descendant, learned author says thus: “In Shahar Banoo v. Aga Mohomed the founder was a Shia and his lineal descendant, who claimed to be appointed mutawalli was a female of the Babi sect. The trial Judge appointed her a mutawalli, but the High Court set aside the appointment and appointed another person. This was not the ground that she was not qualified, but because as a female she would have to perform many of her duties by deputy, and as a Babi she might not take zealous interest in carrying out the religious observances of the shia school for which the trust was founded. This decision was uphold by the Privy Council on appeal. In considering the authorities the Lordships said, “the authorities seem to their Lordships to fall far short of establishing the absolute right to the lineal descendants of the founder of the endowment, in a case like the present, in which that found has not prescribed any line of devolution. “If the line of devolution is prescribed from generation to generation it does not follow that a female, or persons claiming through females are excluded though it may not be desirable to appoint a female owing to their habits and seclusion. “If the line of devolution is prescribed from generation to generation it does not follow that a female, or persons claiming through females are excluded though it may not be desirable to appoint a female owing to their habits and seclusion. In a case where the founder of the wakf was a Mohamedan lady who had appointed herself first mutawalli and directed that the succession should be to the legal heirs of the second mutawalli it was held that female heirs were not excluded. Where the wakif appointed his son as mutawalli and provided that the descendants (be Farzandan) should succeed as mutawallis, it was held that the words be farzandan did not exclude the daughters of male descendants, but excluded the children of daughters.” 19. Tyabji on Muslim Law (4th Edition), at page 580 has held thus: “(9) When the office of mutawalli entails the performance of religious or spiritual duties which cannot be performed by females or minors or non-Muslims, they are disqualified from acting as mutawalli or Sajjadaenashin.” But where females are excluded, it does not necessarily imply that the male descendants of female members of the family of the Wakf, or of the last mutawalli will also be excluded. (10) If the primary object of a grant is maintenance of the proper services at the mosque - viz., Khijmat (sic. for khidmat Service viz., at the mosque) 1mamat = preaching, being a priest; moujani (Strictly mu’adhdhin, in English musszin, therefore mueszine) = calling to prayers khitabat reading sermon at the masjid, - Females will be excluded from holding these offices and getting the duties performed vicariously especially where there are male members of the family qualified for the discharge of the duties.” 20. Kashi Prasad Saksens on Muslim Law (1963 Edition) Under the chapter “Superintendence of Waqf” has considered this question, learned author said thus: “…The waqf may lawfully reserve the tauliat (the management of the trust) for himself, or any person may be nominated, Sex or religion will be no bar for competence as regards mutawalliship. A female or a non-muslim or a society may be validly appointed as such. A female or a non-muslim or a society may be validly appointed as such. The Islamic jurisprudence does not bar either women or non-Muslim being appointed or acting as trustees or mutawallis for Muslim endowments so far as the management pertains only to the secular administration of the wakf and its properties and does not involve the discharge of duties relating to religious or spiritual services or obligations. But where the mutawalli has to perform religious duties, or spiritual functions, e.g., the duties or spiritual functions e.g., the duties of a Sajjadaenashin (spiritual superior) or kahatib (one who reads sermons) or mujawar of dargah or an Imam in a mosque (one who leads the congregation), or a muezzin crier), or a mulla, a female or a non-Muslim is not competent to hold that office and cannot be appointed as such. But a women is not incompetent to hold the office of the head mujawar of a platform, on which Moharram ceremonies are performed, or khatibaship. The Muslim Law does not necessarily exclude a female from the office of a khadim or any other religious office, unless the duties of the office cannot be performed by her, or by her deputy, and the onus of proving that she is precluded from holding the office lies on those who plead such exclusion. Khadim is a mode of describing the peculiar relationship which exists between spiritual preceptor and his disciple. A woman is not disqualified from holding the office of Asrai Sheriff, as the duties of the office are such as can be performed by a woman. The muslim law does not exclude a woman from doing the temporal or non-religious duties of a mutawalli. A woman is not procluded from holding the office of mujawar in a mosque, as the religious duties attached to the office can be performed by a substitute. If the spiritual duties can be detached from the mutawalliship, and can be performed by a deputy, the female or the non-muslim can remain in the office, performing the secular duties alone. “[Italics supplied] 21. B.R.Verma on Islamic Law (6th Edition), at page 699 has held thus: “Females are not debarred from acting as mutawalli, when the work does not involve any spiritual duties which could not be discharged in person or by deputy. “[Italics supplied] 21. B.R.Verma on Islamic Law (6th Edition), at page 699 has held thus: “Females are not debarred from acting as mutawalli, when the work does not involve any spiritual duties which could not be discharged in person or by deputy. Where however spiritual duties cannot be performed by proxy, a female may be excluded, e.g., the duties of a Sajjadhashin, spiritual superior, or an imam in a mosque (who leads the congregation) cannot be performed by a female and a female should not therefore hold the office of a mutawalli.” 22. The Muslim law of India by Dr.Tahir Mahmood has also considered this question in page 291 which reads thus, “There is no general inhibition against a women acting as a mutawalli. The courts have held that where the mutawalli has to act also as sajjadanashin, mujawar, imam or khatib, no woman can hold the office since the special duties of these functionaries cannot be performed by a woman.” 23. Syed Abdul Hameed Sahib v. Syed Unnisa Bibi Syed Abdul Hameed Sahib v. Syed Unnisa Bibi Syed Abdul Hameed Sahib v. Syed Unnisa Bibi 67 MLJ. 909:A.I.R. 1934 Mad. 692(1), it is held thus: “A woman is not disqualified from holding the office of Asarai sheriff where the duties of the office are such as can be performed by a woman.” 24. A Division Bench of our High Court in the decision reported in M.M.Hussain Faroki v. S.Abdul Muq M.M.Hussain Faroki v. S.Abdul Muq M.M.Hussain Faroki v. S.Abdul Muq (1942) 1 MLJ. 564 :A.I.R. 1942 Mad. 485, it is held thus: “In 41 Mad. 1033, Abdur Rahim and Seshagiri Ayyar JJ., held that as decided by the Privy Council, there is no general rule of Mahomedan Law prohibiting a woman from holding a religious office and that such a religious office can be held by a woman under the Mahomedan Law unless there are duties of a religious nature attached to the office which she cannot perform in person or by deputy. The learned judges emphasise that such, a prohibition arises, if at all, from local custom or usage and not by an in junction of Mahomedan religious or law they held that the burden of establishing that a woman is preclude from holding a particular office was on those who plead the exclusion, Abdur Rahim, J. seems to have considered that the decision in 3 Mad. 95 did not go beyond the facts in that particular case and that on the evidence the court must be taken to have held that the woman concerned could not hold that office of Mujawar. The question whether the office could be performed by a deputy was not discussed. It seems to me that the decisions of this Court in 41 Mad. 1033 and of the Judicial Committee in 34 Cal. 118 are comprehensive. It is difficult to think of any religious office which a woman cannot hold if she is permitted to hold it by a deputy. Neither of the learned counsel was able to give an example of any religious office which could not be performed through the medium of a deputy. As a matter of a convenience, there is nothing to be said against the notion once it is accepted that religious office descends, because it is obvious that the possibility that the deputy specially nominated by a woman may satisfactorily perform the office is at least equal to the possibility that the person to whom the office descends may be equally qualified. It will therefore appear to be the law that unless it can be shown by custom or usage that a special office depending upon the personality of an individual which cannot be deputised cannot be held by a woman there is no other prohibition upon her. So, far as this court is concerned the matter is concluded by authority.” [Italics supplied] 25. A similar view was taken in the decision reported in Shaik Masthan Sahib v. Balarami Reddi A.I.R. 1953 Mad. 958 26. In Mohd. Bhai v. Wazirbi A.I.R. 1947 Nag. 31, it is held that it is competent for the foundeter of the wakf to appoint his wife as successor after his death. In that case, the question came for consideration before Nagpur High Court was that the property has to be managed by the wife and income therefrom was to be utilized for the Mosque. The question was whether plaintiff can act at Mutawall. The learned Judge did not find any disqualification for woman to act as mutawalli. 27. InMd.Eshaque v. Md.Amin Md.Eshaque v. Md.Amin Md.Eshaque v. Md.Amin A.I.R. 1948 Cal. 312, the question came for consideration was while considering the question of descendants, whether the claim of daughters also could be considered. The question was whether plaintiff can act at Mutawall. The learned Judge did not find any disqualification for woman to act as mutawalli. 27. InMd.Eshaque v. Md.Amin Md.Eshaque v. Md.Amin Md.Eshaque v. Md.Amin A.I.R. 1948 Cal. 312, the question came for consideration was while considering the question of descendants, whether the claim of daughters also could be considered. The Division Bench held that the daughters are also entitled to be considered as Mutawalli and there is no prohibition under Muslim law for considering their claim. 28. From the above decisions, it is near that there is no prohibition for a woman acting as Mutawalli of the Wakf. 29. Appellate court held that the functions are of religious nature and therefore Thaha Beevi was not qualified to act as mutawalli. I do not find any merit in that finding. I have already extracted the relevant portion of the document which says that the charity either has to be performed personally or could be performed through others. As per the Division Bench decision in M.M.Hussain Faroki v. Abdul Huq M.M.Hussain Faroki v. Abdul Huq M.M.Hussain Faroki v. Abdul Huq A.I.R. 1942 Mad. 485, deputy specially nominated by a woman may satisfactorily perform office is at least equal to the possibility that the person to whom the office descends may be equally qualified. As per the document, Thaha Beevi can also appoint her elder son as mutawalli during her lifetime and to perform even if there is any religious acts required to be performed. 30. Trial court held that plaintiff is not even competent to question Ex.B-1 document. I agree with the finding of trial court. At the time Ex.B-1 was executed, plaintiff was not even born and document happened to be executed immediately after the death of founder. Plaintiff is also claiming only under his father as mutawalli. So any act done by late Mohamed Kasim will also bind plaintiff. Being a party to the document, it is too much to think that plaintiffs father will act against the terms of the document and appoint his son as mutawalli after his lifetime. Except for the interested testimony of P.W.1, we have no other evidence to show that plaintiff was appointed as mutawalli. 31. It is admitted in the plaint itself that wakf is registered before Tamil Nadu wakf Board. It is that extract is filed as Ex.B-2. Except for the interested testimony of P.W.1, we have no other evidence to show that plaintiff was appointed as mutawalli. 31. It is admitted in the plaint itself that wakf is registered before Tamil Nadu wakf Board. It is that extract is filed as Ex.B-2. Ex.B-1 is considered and the line of succession is also provided in Ex.B-2, Finding of the lower court that Ex.B-2 is not in accordance with law is a finding on which even plaintiff has no case. 32. Plaintiff claims that he is mutawalli and injunction was also sought for only in that capacity. Various documents produced by plaintiff do not show that his father acted continuously for 48 years as alleged by him. It is the case of appellant that till 1974 Thaha Beevi was managing the affairs and on her death, Mohammed Kasim became the mutawalli. He was managing the same till 1981. From 1981, first defendant came in management but before completing the period of 7 years, he left for foreign country seeking employment. According to him, he entrusted the management of the post also to his elder brother. That was in 1988. All documents produced by plaintiff was only from 1988. If plaintiffs father was in possession of property between 1981-1988. documents would have been produced to show that first defendant never acted as mutawalli. 33. Mohamed Kasim died in the year 1990 and the property was entrusted to first defendant. Kasim was entitled to continue in possession for 7 years. But before expiry of the term he died. According to appellant, because of close relationship, he allowed plaintiff to continue in possession till the period expires. Taking into consideration the provisions in Ex.B-1 to which plaintiffs predecessor and appellant are parties, the entrustment seems to be probable. 34. Appellant further avers that in 1995 he has taken possession and is managing the affairs. Exs.B-3 and B-4 supports that case, pleaded by appellant. Lower appellate court held that the first defendant is not competent to execute lease without the consent of Wakf Board and therefore it is irrelevant. In this case, we are not concerned about the validity of the lease and only question is whether first defendant is exercising right to administer the wakf. Again, it is not the case of plaintiff nor of appellant that lease in favour of third party is for more than three years. In this case, we are not concerned about the validity of the lease and only question is whether first defendant is exercising right to administer the wakf. Again, it is not the case of plaintiff nor of appellant that lease in favour of third party is for more than three years. Lease could be executed for a period of three years or less. Lower appellate court has assumed that plaintiffs father was in possession of property continuously for the period of 48 years. That assumption is only on the basis that Thaha Beevi was not competent to Act. If that assumption is not correct, naturally the conclusion arrived by lower court is to be set aside. 35. In the result, the judgment and decree in A.S.No.134 of 1997 on the file of Principal Subordinate Judge, Nagercoil is set aside and the judgment and decree in O.S.No.905 of 1995 on the file of District Munsif Court, Nagercoil is restored. The second appeal is allowed with costs throughout. Suit filed by plaintiff in O.S.No.905 of 1995 is therefore dismissed. Consequently C.M.P.No.18485 of 1999 is closed.