Sankara Subban, J.:— This second appeal has been referred to a Division Bench by Krishnan Unni, J. when contention was raised that as per Section 85 of the Wakf Act (hereinafter referred to as ‘the Act’) Civil Court is barred from considering any question in respect of any dispute, question or other matter relating to any wakf. The facts of the case are as follows:

The appeal arises out of O.S No. 91 of 1984 on the file of the Additional Sub Court, Badagara. Plaintiff in this case is Jumayath Palli Dharas Committee. The suit was filed for declaration of title over the plaint schedule property and recovery of possession on the strength of title and for an injunction restraining the second defendant from demolishing the existing building situated there. The Jurnath Palli and Khabarsthan belonged to Peedikayilakath tarwad of which first defendant is the present karanavan. It has been dedicated in wakf with karanavan as its mutawalli. Five members of the said tarwad executed a registered agreement on 13-2-1973 whereby they authorised the plaintiff-Committee to manage the wakf property. It appears, the first defendant executed another document, Ext. A3, on 2-5-1984 in favour of the second defendant relating to the property on the basis of which the second defendant's father was holding an oral entrustment from 1948. The plaintiff-Committee has filed the suit for a declaration of title and for recovery of possession of the suit property from the second defendant.

2-3. The first defendant filed a written statement supporting the plaintiff. The second defendant filed a written statement contending that his father was in possession of the property from 1948. He further contended that the plaintiff has no locus standi to file the suit as such. The document, Ext. A2 is invalid. The property covered by Ext. A3 is the wakf property. The trial Court raised seven issues. Issues 1 to 3 were (1) whether the suit was maintainable? (2) whether the plaintiff-Committee has any right or title over the plaint schedule property? (3) Whether the allegation of attempted demolition of the building is correct and true? The trial Court held that the suit was maintainable and on the basis of Ext. A2, the plaintiff has got right to file suit. On other issues, it found that the property covered by Ext. A3 includes the plaint schedule property and it forms part of wakf property and that the first defendant had no right to execute document. The case of entrustment was found against. Hence the suit was decreed by the trial Court.

4. Against that an appeal was filed before the District Court. The District Court took the view that so far as the officer of mutawalli is concerned, it cannot be transferred. Hence, it held that under Ext. A2, the mutawalliship cannot be transferred. Further it also took the view that the property cannot be transferred. So far as the question of validity of the document in favour of the second defendant is concerned, it found that it was not valid and had no right over the property. It also found that the property given under Ext. A3 forms part of wakf property. Thus, as a matter of fact, the Appellate Court found that the 1st defendant though was in possession of the plaint schedule property, has no right over the same. But at the same time, did not give any relief to the plaintiff on the ground that the plaintiff has no title over the plaint schedule property. Hence, the District Court disposed of the appeal as follows:

“Hence, this appeal is allowed and the decree and judgment passed by the lower Court are set aside and the suit is dismissed. But, the dismissal of the suit will not affect the right of the de jure mutawalli in respect of the wakf property which takes in the plaint schedule property also to institute appropriate proceedings in appropriate forum regarding the plaint schedule property”. It is against the above judgment and decree that the Second Appeal is filed.

5. A cross objection has been filed by the respondent. In the memorandum of Second Appeal, five substantial questions of law raised. The first question that was referred to was whether the appeal can be considered by the Civil Court in the light of the provisions of the amendment in the Wakf Act. According to us, the following substantial questions of law arise for consideration: (1) whether this Court is competent to decide the question of wakf in view of Section 85 of the Wakf Act, 1995? (2) Whether the right of mutawalli is transferable? (3) Was the Court below correct in holding that the plaintiff was not legally entitled to file the suit?

6. The main question that arises for consideration is whether after the advent of Section 85 of the Act, whether an appeal in which question regarding wakf arises can be decided by this Court. Learned counsel for the appellant brought to our notice Section 85 of the Act, which says that no suit or legal proceedings shall lie in any Civil Court in respect of any dispute, question or other matter relating to any Wakf, Wakf property or other matter which is required by or under this Act to be determined by a Tribunal. Learned counsel brought to our notice Section 7(1) of the Act which says that question whether a particular property is wakf property is a question which is directed to be decided by the Tribunal under Section 7(1) of the Act. Hence, counsel contends that there is bar for the Civil Courts to decide the question regarding wakf. After the commencement of the Act, the question regarding wakf is to be decided by Special Tribunal to be constituted. So far as the present case is concerned, the question whether the plaint schedule property forms part of the property should be decided by the trial Court as well as by the First Appellate Court and in Second Appeal by this Court (sic) only considers whether the judgment and decree passed by the Court is correct or not. According to us, the coming into force of the Wakf Act, 1995 does not in any way prevent this Court from considering the question whether the judgment in appeal is correct or not in spite of the fact, that the question to be decided is whether the plaint schedule property is waif property or not. Further, we find that Section 7(5) of the Act merely says that the Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a Civil Court under sub-section (1) of Section 6, before the commencement of this Act or which is the subject-matter of any appeal from the decree passed before such commencement. Section 7(5) of the Act clearly exempts appeal from the bar of jurisdiction. Hence, we are of the view that this Court is perfectly competent to decide the question regarding wakf in this appeal.

7. The scope of section 85 came up for interpretation before the Andhra Pradesh High Court in the decision reported in P. Rama Rao v. High Court A.P, rep. by Registrar (Vigilance), 2000 (1) Andh LT 210. Of course, that decision is not relevant for the purpose of this case. That decision considered the problem arose from non-constitution of the Tribunals immediately after Section 85 of the Act came in to force. The Court held that Civil Courts continued its jurisdiction till the Tribunals are constituted. In the course of decision, their Lordships relied upon the fact that there was no provision in the Act to transfer the pending cases to the Wakf Tribunal. This was taken as a justification for coming to the conclusion that till Tribunals are constituted, Civil Courts have jurisdiction.

8. The next question is whether Ext. A2 transfer is valid. Ext. A2 is an agreement executed by some members of the tarwad. As per that agreement, mutawalliship was transferred to the plaintiff Society and it is stated that from the date of agreement onwards, the Secretary of the Society can manage the wakf created. The Appellate Court has held that the transfer of mutawalliship is not valid. We agree with that view.

9. In Mulla's Principles of Mahomedan Law, Nineteenth Edition at page 195 under the heading “214, Office of mutawalli not transferable”, it is stated as follows: “A mutawalli has no power to transfer the office to another, unless such a power is expressly conferred upon him by the founder. But he may appointed a deputy to assist him in management of the endowed property”. Thus, as per the law, there cannot be any transfer of mutawalliship. Hence, in the eye of law, Ext. A2 is invalid. Learned counsel for the appellant then submitted that even if Ext. A2 is invalid, since the plaintiff was acting as mutawalli, the plaintiff is entitled to recover possession. Learned counsel brought to our notice the definition of mutawalli under the Wakf Act, 1954, which shows that it includes a person, who acts as mutawalli. Further, he brought to our notice the written statement filed by the Secretary, Wakf Board, wherein it has been stated that the plaintiff-Committee was very regular in submitting annual statement of accounts to the Wakf Board and in payment of annual contribution to the Board as per the provisions of the Act. Learned counsel also brought to our notice the decisions of the Madras High Court reported in Moideen Bibi Ammal v. Rathnavelu Mudali, AIR 1927 Madras 69 and Syed Mustafa Peeran Sahib v. State Wakf Board, represented by its Secretary, Madras, AIR 1969 Mad 66. In Moideen Bibi Ammal v. Rathnavelu Mudali, AIR 1927 Mad 69, it was held that the de facto trustee of a mosque can collect rent and reimburse himself for the expenses of the collection out of the rent collected. So also in the decision in Syed Mustafa Peeran Sahib v. State Wakf Board, represented by its Secretary, Madras, AIR 1969 Madras 66, it was held that the mutawalli cannot refuse to pay fees to the Wakf Board. These decisions make it clear that a person acting as mutawalli is entitled to the rights and duties of the mutawalli. Hence, according to us, the plaintiff-Committee is entitled to sue for recovery of possession.

10. Under Ext. A2, there is no transfer of property. What is transferred is only the management of wakf property. So far as cross-objection is concerned, we cannot accept the contention of the second defendant that the document created in favour of the first defendant is valid. The case set up that the father was in possession from 1948 cannot also be accepted. These are concurrent findings by the Courts. So also we agree with the Court below that the property conveyed to the appellant included the wakf property, Ext. A2.

11. In the above view of the matter, we set aside the judgment of the lower Appellate Court and pass a decree entitling the plaintiff to recover possession of the plaint schedule property from the second defendant. We further direct the State Wakf Board to exercise its power under Section 63 of the Act and to appoint a mutawalli in the place of the plaintiff. We make it clear that the decree that is granted to the plaintiff can be executed either by the plaintiff or if the plaintiff is removed, by another mutawalli appointed by the Wakf Board, by the mutawalli so appointed.

Appeal is allowed. No costs. Cross objection is dismissed.

Appeal allowed.