Fatheuddin Ahmed and Others vs State Wakf Board and Others

Srinivasan, J.—The Durgah and Mosque at Kovalan, Chingleput Taluk, was founded more than two hundred years ago, by one Fakir

Mohamed Arab. It is under the administration of a Board of Trustees and management of the Durgah and the Mosque is governed by a scheme

made in suit, O.S. No. 27 of 1940 of the court of the subordinate Judge of Chingleput. The founder had four sons and it is not in dispute that the

representatives of those four branches have the right to perform the festivals at the Dargah and in particular the Urz festival during the one month of

the Muslim year. It is not also in dispute that the turn-holder is entitled to appropriate to himself on behalf of his branch, all the offering collected

during that month. In 1922, the first branch had no male heirs and other branches excluded any representation of the first branch from such rights

as that branch had upto then been in enjoyment of. A female heir in the first branch, one Syed Unnissa, instituted a suit, claiming the right to

succeed to the rights of the first branch. The matter went up to the Supreme Court and her right was recognised. It is not in dispute that in

pursuance of this judgment of the Supreme Court, the first branch enjoyed the rights in the year 1964.

A representative of the second branch filed an application before the State Wakf Board objecting to an order made by that Board allotting the

representative of the first branch the performance of the Urz in 1964. This person sought for a review of that order, but that application was finally

withdrawn. The State Wakf Board however made an order that the fourth branch should perform the Urz festival in 1964-65. It is this order of the

Board that is attacked in this writ petition, it being claimed that the Board acted without jurisdiction. The short question is that the arrangement

among the heirs of the founder is purely internal arrangement in the exercise of their civil rights and the State Wakf Board, though it has undoubted

authority to see to the proper administration of the Wakf, is not entitled to interfere in a matter of this kind.

After the petition was heard in part, the State Wakf Board, through its learned counsel, represented that it was not interested in a matter in

which the private rights of the parties were concerned. So long as the administration of the Wakf was not affected by any internal dispute of this

kind. The Wakf Board was willing that the matter should be adjusted among the representatives of the four branches.

It was also conceded in the course of the arguments that what was required to be done in order to obviate any difficulty was to secure a proper

representation in connection with the performance of the Urz. The parties purport to have entered into an arrangement and have filed a Memo of

compromise providing that the second, third and fourth branches shall perform the Urz in 1965, 1966 and 1967 respectively, followed by the first

branch in 1968 and that this order should be followed every year thereafter. There is a provision in this compromise that if the heirs of any branch

fail to select a person to conduct the Urz before a particular date and to report the matter to the President of the Board of Trustees, that authority

shall be at liberty to select a person from among the heirs of that branch and entrust him with the performance of the festival. It would appear

therefore that the due performance of the Urz would be secured by such reserve power vested in the President of the Board of Trustees.

This compromise has been subscribed to by almost all the representatives of the four branches, so it is claimed by the petitioner. An affidavit by

one S. M. Ahmed, who is also one of the sharers, has been filed in support of the assertion that except for a few members of the various branches,

who are not available and whose signatures could not be obtained to the compromise a large number of members have in fact agreed to the

compromise.

Mr. Ismail, on behalf of the State Wakf Board, has no objection to the Urz being performed by the second branch in 1965. He is however

unwilling to agree that this rotation should be accepted as valid for all time in the future. Again, on behalf of the first branch, which had apparently

been kept out of the enjoyment of its rights from 1922 onwards till a female heir of that branch established her rights in the Supreme Court, it is

urged that the first branch having been so kept out for a considerable number of years, that branch should in compensation be permitted a larger

number of turns. While I am willing to agree that the compromise may be accepted in so far as the Urz in 1965 is concerned, it is not within the

scope of the present writ petition to deal with such civil rights are put forward on behalf of the first branch. Since this matter is already governed by

a scheme, the parties may very well obtain relief in such matters by resort to the appropriate court. I accept the contention that the Board did not

have jurisdiction to order a rotation. The impugned order is quashed. It will be directed that in pursuance of the compromise, which is accepted

only for the year 1965, the Urz and the other festivals shall be performed by the second branch during this year. With regard to other matters in

controversy, the parties will have to establish their rights elsewhere. There will be no order as to costs.

Petition allowed.