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The Kerala Wakf Board, Ernakulam v. Alam Aboobacker Sait And Others
Factual and Procedural Background
The dispute concerns a Wakf created by the Will dated 25-2-1099 (Ext. P1) executed by Abdul Sathar Haji Moosa Sait. The Will contained a stipulation for appointment of a Mutawalli (managing trustee): the testator's grandson Moosa was to be Mutawalli, followed by his male children, and in the absence of such children, the testator's daughters' children and grand-daughters (sisters of Moosa). The Will also required that any person appointed be of maturity and ability.
A vacancy (or a change in office-holders) led to the appointment of Adam Aboobacker Sait as managing trustee at a Board of Trustees meeting on 11-2-1978, and he thereafter functioned as Mutawalli. Respondents 2 to 4 alleged to the Wakf Board that this appointment was improper and that Abdul Kareem Abdul Sathar Sait (the second respondent in the original petition) should have been appointed in accordance with the Wakf terms. The Wakf Board inquired and, by order Ext. P-4 dated 17-11-1979, held that Abdul Kareem Abdul Sathar Sait was eligible and entitled to be appointed and that the Board of Trustees' appointment was not legal.
Adam Aboobacker Sait challenged the Wakf Board's decision in Original Petition No. 4168 of 1979. The learned single Judge, by judgment dated 26-3-1982, allowed the original petition and quashed the Wakf Board's order (Ext. P-4), holding that the Wakf Board had no jurisdiction to decide the dispute. The present appeal is by the Wakf Board against that single Judge's judgment.
Legal Issues Presented
- Whether Section 42 of the Wakf Act, 1954 empowers the Wakf Board to decide disputes between rival claimants to the office of Mutawalli and to appoint a person to act as Mutawalli when there is contest as to the right to the office.
- Whether the Wakf Board's general supervisory powers under Section 15 (including S.15(2)(g) which authorises appointment and removal of mutawallis) should be read together with Section 42 to permit the Board to resolve contested claims and effectively remove or replace a person already functioning as Mutawalli.
- If an appointment is made under Section 42 in circumstances of contest, whether the Wakf Board has any statutory mechanism to enforce such appointment against a person already acting as Mutawalli (de jure or de facto).
Arguments of the Parties
Wakf Board (Appellant) — submissions by Sri Wariyar
- The Wakf Board relied on its general superintendence powers under Section 15 of the Wakf Act, 1954, which include ensuring wakfs are properly maintained, controlled and administered, and ensuring application of income to wakf objects.
- Specific reliance on Section 15(2)(g), which confers power on the Wakf Board to appoint and remove mutawallis "in accordance with the provisions of the Act."
- On a proper construction of Section 42, the Wakf Board argued it has power to decide disputes as to the right to be appointed as Mutawalli and to make an appointment where an existing appointment is not in accordance with the terms of the Wakf.
Respondents 2–4 ( challengers of the Board of Trustees' appointment )
- They alleged the appointment made by the Board of Trustees (of Adam Aboobacker Sait) was improper and that Abdul Kareem Abdul Sathar Sait was the person entitled to be Mutawalli under the terms and intention of the Wakf.
Adam Aboobacker Sait (Original petitioner who challenged the Wakf Board decision)
- He challenged the Wakf Board's decision in O.P. No. 4168 of 1979; the learned single Judge held the Wakf Board had no jurisdiction to decide the dispute under Section 42.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court performed a textual construction of Section 42 of the Wakf Act, 1954. Section 42 provides (quoted in the opinion) that:
“When there is a vacancy in the office of the mutawalli of a wakf and there is no one to be appointed under the terms of the deed of the wakf 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 condition as it may think fit.”
Key steps in the Court's analytical approach:
- Plain reading: The Court identified two situations in the section — (a) where there is no one to be appointed under the wakf deed, and (b) where the right of any person to act as mutawalli is disputed — but emphasised that both are prefaced by the condition "when there is a vacancy in the office of the mutawalli". The Court read the provision as permitting Board intervention only where there is an actual vacancy.
- Character of the power: The Court stressed that Section 42 authorises appointment "to act as the mutawalli" for a limited period and on such conditions as the Board thinks fit. This suggests a temporary, enabling function to fill a vacuum, rather than a power to make a regular, permanent appointment or to displace an existing office-holder.
- Absence of express removal power in Section 42: The Court noted Section 42 does not expressly empower the Board to remove a person who is already appointed or functioning as a de facto mutawalli. The appellant's argument that removal power should be implied was rejected on the ground that, if removal were intended, the statute would have provided express removal and enforcement mechanisms in Section 42 itself.
- Comparison with Section 43 enforcement provisions: The Court contrasted Section 42 with express provisions in Section 43 (referenced as sub-s. (3) and sub-s. (5) in the opinion) that provide for enforcement where the Board removes a mutawalli under Section 43(1) or (2). Specifically, sub-section (5) of Section 43 allows the Board's removal order to be treated as a decree of a Civil Court and executed as such. The Court held no parallel enforcement mechanism exists for orders under Section 42, which undermines the submission that Section 42 was intended to permit removal of an incumbent.
- Definition of "mutawalli": The Court noted Section 3(f) defines "mutawalli" to include any person appointed under the wakf deed and any person for the time being managing or administering a wakf property — i.e., de facto managers qualify as mutawallis. The absence of a power to remove a de facto mutawalli in Section 42 supports the conclusion that Section 42 is only intended to operate where there is no person (de jure or de facto) managing the wakf — in other words, where a vacancy exists.
- Consequent application to facts: Because, on the material, the Board of Trustees had already appointed a person who was functioning as mutawalli (Adam Aboobacker Sait), there was no vacancy. Therefore Section 42 could not lawfully be invoked by the Wakf Board to displace the incumbent or to decide the competing right to the office.
- Appropriate remedy: The Court accepted the single Judge's view that aggrieved parties must establish their rights to the office of mutawalli in an appropriate civil suit in accordance with the terms of the wakf.
Holding and Implications
APPEAL DISMISSED.
The Court affirmed the single Judge's conclusion that the Wakf Board did not have jurisdiction under Section 42 to decide the contested right to the office of Mutawalli or to make an appointment in circumstances where there was no vacancy and a person was already functioning as Mutawalli.
Direct consequences:
- The Wakf Board's appeal fails and is dismissed; the single Judge's order quashing the Board's decision (Ext. P-4) stands.
- The Court indicated that disputes about entitlement to the office of Mutawalli should be resolved by an appropriate civil suit where parties can establish their rights in accordance with the terms of the wakf.
The opinion does not discuss broader doctrinal implications beyond the case or declare the creation of a novel precedent; its decision rests on statutory construction and the immediate effect on the parties.
Malimath, C.J:— This appeal is against the judgment of the learned single Judge in O.P No. 4168 of 1979, by the Kerala Wakf Board. A Wakf has been created under the Will dt. 25-2-1099, Ext. P1, executed by Abdul Sathar Haji Moosa Sait. The stipulation regarding appointment of Mutawalli described as the managing trustee is that the grand-son of the testator Moosa shall be entitled to be the Mutawalli and after him, his male children and in the absence of such children of the testator's daughters and grand-daughters, being the sisters of the said Moosa. There is also a stipulation to the effect that the person to be appointed as Mutawalli should be a person of maturity and ability. Consequent upon the occurrence of the vacancy the petitioner in the original petition Adam Aboobacker Sait was appointed as the managing trustee at the meeting of the Board of Trustees held on 11-2-1978. In pursuance of the said order he has been functioning as the managing trustee. When such was the position, it appears that an allegation was made to the Wakf Board by the respondents 2 to 4 in the original petition that the appointment made by the Board of Trustees is not proper and that it is the second respondent in the original petition, Abdul Kareem Abdul Sathar Sait, who should have been appointed as the Mutawalli in accordance with the terms and intention of the Wakf. The Wakf Board enquired into the matter and passed an order as per Ext. P-4 on the 17th of Nov., 1979. The Board held that as between the contesting parties it is Abdul Kareem Abdul Sathar Sait that is eligible and entitled to be appointed as a managing trustee-Mutawalli and that the appointment made by the Board of Trustees is not legal and proper. It is the said decision that was challenged by Adam Aboobacker Sait in O.P No. 4168 of 1979. The learned single Judge has by judgment dt. 26-3-1982 allowed the original petition and quashed the decision of the Wakf Board, Ext. P-4, holding that the Wakf Board had no jurisdiction to decide the dispute. It is the said decision that is challenged in this appeal by the Wakf Board.
2. The learned single Judge has taken the view that the power to appoint Mutawallis of the Wakf Board can only be traced to S. 42 of the Wakf Act, 1954 but that the said provision does not confer power on the Wakf Board to decide the dispute when there is contest between rival parties for being appointed as the Mutawalli and that the power of appointment cannot be exercise under the said provision unless there is a vacancy.
3. If was contended by Sri. Wariyar, learned counsel for the appellant, that the view taken by the learned single Judge is not right. It was submitted that the Wakf Board has been conferred power by S. 15 of the Act of the general superintendence of all wakfs to ensure that the wakfs under its superintendence are properly maintained controlled and administered and that the income thereof is duly applied to the objects and for the purposes for which the wakfs have been established. He invited our attention to S. 15(2)(g) of the Act which confers power on the Wakf Board to appoint and remove the mutawallis in accordance with the provisions of the Act. He submitted that it is in the light of the functions that have been entrusted on the Wakf Board as is clear from S. 15 of the Act that we should construe he provisions of S. 42 of the Act which have been invoked in this case. He submitted that on a proper construction of S. 42 it would be reasonable to hold that the Wakf Board has the power of rendering a decision if there is a dispute in regard to the right to be appointed as a mutawalli and to make a proper appointment if the appointment already made is not in accordance with the terms of the Wakf.
4. Section 42 of the Act which calls for construction in this case may be set out as follows:
“When there is a vacancy in the office of the mutawalli of a wakf and there is no one to be appointed under the terms of the deed of the wakf 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 condition as it may think fit.”
On a plain construction of S. 42 it appears to us that power has been conferred on the Wakf Board to appoint any person to act as the mutawalli under the two situations specified in the section. The first is when there is no one to be appointed under the terms of the deed of the wakf and the second is where the right of any person to act as mutawalli is disputed. But it appears to us that the power of appointment can be exercised only when there is a vacancy in the office of the mutawalli of a wakf. The expression “when there is a vacancy in the office of the mutawalli of a wakf applies to both types of situations viz., there being no one to be appointed under the terms of the deed of the wakf and where the right of any person to act as mutawalli is disputed. On a plain reading of S. 42 of the Act it appears that the power to appointment can be exercised only when there is a vacancy. It is an enabling provision which entitles the Wakf Board to step in when there is vacuum, there being none to look after the affairs of the Wakf as a mutawalli. It is also necessary to note that the power conferred by S. 42 is not to appoint a person as the mutawalli but to appoint a person to act as the mutawalli. The stipulation that such appointment shall be made for such period and on such condition as it may think fit also suggests that it is not the regular appointment of a mutawalli that is contemplated by S. 42 of the Act.
5. It is necessary to point out that S. 42 in terms does not expressly empower the Wakf Board to remove a person who has already been appointed as a mutawalli or who has been functioning as a de facto mutawalli. It was sought to be contended that such a power must be implied in the power conferred by S. 42 of the Act. If it was thought necessary to confer power of removal for the purpose of giving effect to the appointment to be made Under S. 42, express provisions would have been made to that effect in S. 42 itself. Even assuming for the sake of argument that an appointment is made under S. 42 as contended by the learned counsel for the appellant that it has the legal effect of removing a person who is already functioning as a mutawalli, the question of enforcing such an order would arise. We do not find any provision in the Act which enables the Wakf Board to enforce the order by removing the person who has been functioning as a mutawalli in order to give effect to the order of appointment made by the Wakf Board under S. 42 of the Act. We find by contrast express provision having been made in sub-s. (3) of S. 43 of the Act for enforcing the order of removal that the Wakf Board is competent to make under sub-s. (1) or (2) of S. 43 of the Act. The said sub-s. (5) of S. 43 provides that where a Mutawalli has been removed from his office under sub-s. (1) or sub-s. (2), the Board may, by order, direct the mutawalli to deliver possession of the wakf property to the Board or any officer thereof duly authorised in this behalf or to any person or committee appointed to act as the mutawalli of the Wakf property; and the order of the Board shall be deemed to be a decree of Civil Court and shall be executed by the Civil Court as if it had passed the decree. It is therefore clear that if the order of the Wakf Board removing the mutawalli under sub-s. (1) or (2) of S. 43 is not obeyed, the said order can be deemed to be a decree of a Civil Court and executed as such. But there is no such provision for enforcing the order made under S. 42 if the same is construed as an order empowering the Wakf Board to remove a person wrongly appointed or wrongly in occupation of the office of the mutawalli. The power under sub-s. (5) of S. 43 cannot be invoked in such circumstances as the power can be invoked only in cases where removal is brought about by invoking sub-s. (1) or (2) of S. 43 of the Act. The removal that can be implied from S. 42, as contended by learned counsel for appellant, can by no stretch of imagination be brought about under sub-s. (1) or (2) of S. 43. Hence the provision in sub-s. (5) of S. 43 cannot be made use of for the purpose of removing the person already in office as a mutawalli for the purpose of giving effect to the order of appointment made under S. 42 of the Act. The Legislature would not have conferred power of removal without giving adequate power or making adequate provision for enforcing such an order as has been done in sub-s, (5) of S. 43. This is another reason for us to come to the conclusion that the power conferred by S. 42 of the Act does not empower the Wakf Board to remove a person who is already functioning as a mutawalli. It is necessary to point out that the expression “mutawalli” as defined in S. 3(f) of the Act includes any person appointed in accordance with the Wakf deed and also includes any person for the time being managing or administering any wakf property as such. Therefore any person who is in de facto management of the Wakf properties is also a mutawalli as defined in S. 3(f) of the Act. Absence of power to remove the de facto mutawalli in S. 42 of the Act strengthens the inference that the power of appointment can only be exercised when there is a vacuum, there being no person functioning either as de jure or de facto mutawalli. We have therefore no hesitation in agreeing with the view taken by the learned single Judge that the power of appointment conferred by S. 42 can only be exercised when there is a vacancy. As in this case there was no vacancy, the Board of Trustees having already appointed the person who was functioning as mutawalli, the Board could not exercise its power of appointment under S. 42 of the Act. The learned single Judge, in our opinion is right in taking the view that any aggrieved party can get his rights established in an appropriate civil suit to claim the office of mutawalli in accordance with the terms of the Wakf.
For the reasons stated above this appeal fails and is dismissed. No costs.
Appeal dismissed.
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