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Judgment
A. Ramamurthi, J.—These applications are filed by the applicant/plaintiff to pass an order of interim injunction restraining the first respondent
and his men from executing any sale, lease, mortgage of the plaint Schedule Wakf property to the 2nd respondent or to any other concerns and
also to pass an order for the appointment of a receiver conduct and run the office of the Muthavalli and to streamline the administration of the
Wakf In accordance with the guideline stated in the Wakf Deed for a period as this Court may deem fit and proper, pending disposal of the suit.
The case in brief is as follows:--The applicant''s grandfather late Janab SMS. Bucary Sahib had dedicated 8.84 acres of land bearing Patta No.
21 comprised In S. Nos. 186/1 and 187/2, Saligramarn Village, as Wakf-alal-aulad as per deed dated 28-5-1957. The 1st defendant has sent
some papers to the applicant to sign knowing well that his father late Hajee Janab SMS. Mohammed Ghouse Sahib had 1/11 benefits in the Wakf
and he died on 12-8-1998. The applicant in his own right is entitled to participate in the proceedings of the Wakf. The first defendant has
committed with some developer by name M/s. Jayalakshmi Holdings, the 2nd defendant without giving any Information as to its address,
experience, solvency etc. The 1st defendant has not advertised the proposal and obtained the terms and conditions of the other developers and no
meeting was called of the beneficiaries .The 1st defendant had valued the property at Rs. 28 crores and 80 lakhs. The guideline value of the
property works out to Rs. 42 crores. Further, usually the market value is higher than the guideline value. From the present developer the first
respondent appears to have bargained for 88,000 sq. ft. built up area and also valued the same at Rs. 17 crores and odd, which is alternative
proposal in exchange of 162 grounds. No proposed building plan has been obtained. The 1st defendant has been acting against the interest of the
wakf and has also tried to alienate the wakf property in contravention of the conditions of the wakf deed and without taking the beneficiaries into
confidence. As per Clause 10 of the wakf deed dated 28-5-1957, the Muthavalli shall keep clear and distinct accounts of the income and
expenses of the endowed property which shall be open for inspection. No accounts were maintained by the said Muthvalli as prescribed in the
wakf deed. The lease was executed and extended in favour of 5 persons named in para 8 of the affidavit. Inspite of legal notice, Muthavalli has not
furnished the documentary evidence with respect to the lease and rental amounts collected till date. The office of the Muthavalli is also not
functioning and is not collecting the rents from the tenants. On the other hand the tenants are distributing the rental share to each beneficiary, which
is contrary to the wakf deed. It is the duty of the Muthavalli to collect the rents from the tenants and distribute the income to the beneficiaries. The
Muthavalli unauthorisedly and unlawfully has delegated his duty to the tenants directly to distribute rentals to the beneficiaries. As per Clause 9 of
the wakf deed in case of the sale of immovable property upon a Resolution in writing passed by a majority of the existing beneficiaries, dispose of
the said property and purchase another suitable immovable property in the name of the Wakf and under no circumstances shall be beneficiaries
among themselves or otherwise misappropriate the sale proceeds.
The first defendant had obtained the signature of the applicant for the cancellation of the proposal of development of Wakf property with M/s.
Anil Suresh by paying back Rs. 40 lakhs. A fresh agreement has been executed with the 2nd respondent Copy of the documents executed in
favour of M/s. Anil Suresh has not been furnished for consideration to assess whether the transaction entered by the 1st defendant is beneficial to
the Wakf. Muthavalli had passed a fresh resolution on 28-6-1999 to enter into a fresh development agreement with the 2nd respondent or its sister
concern; Further Muthavalli has also passed a resolution to cancel the prior agreement with M/s. Anil Suresh Constructions by paying an amount
of Rs. 40 lakhs by borrowing the amount from the 2nd respondent. Muthavalli is entering into all sorts of illegal transactions in violation of Sections
207 and 208 of the Mohammedan Law and in violation of the wakf deed. Muthavalli bent upon acting against the interest of the wakf and is also
trying to alienate the wakf property in violation of the Mohammedan Law and also in contravention of the conditions of the wakf deed. Final
opportunity was given enabling the first defendant to furnish all the details and in respect of the development agreements, sanctioned plan and
documents in respect of M/s. Electrical Conductors (P) Ltd. Hence, the present applications.
The respondent filed common counter affidavit and denied the various averments. He is the present Muthavallie of the 1st respondent''s wakf.
According to Clause 8 of the wakf deed, the beneficiaries under this wakf deed shall be his sons including those that are born and may be born,
who will share the net income of the wakf properties equally. For the time being he had in all 9 son''s, four by the first wife and 5 by the second
wife and they shall share the net income equally. SMS Ghouse Mohldeen and SMS. Bashiruddin were born on 26-4-1963 and 2-4-1966.
Including the aforesaid, 2 step brothers in all there are eleven beneficiaries to the wakf. SMS. Mohammed Ghouse died on 12-8-1998 leaving
behind heirs numbering 1 to 13 as mentioned in para 5 of the counter. The applicant is a beneficiary and is entitled to an 1/14 3rd share in the
income from the Akf-Alal-Aulad Estate and is entitled to participate in the proceedings of the wakf and he also participated in the meeting held on
19-5-1999 and signed the minutes and in the meeting on 28-5-1999 he refused to sign the minutes. According to Clause 9 of the wakf deed, in the
event of any immovable property becoming dilapidated or useless, necessitating its sale, the Muthavalli shall upon a resolution in writing passed by
a majority of the then existing beneficiaries, dispose off the said property and purchase another suitable immovable property in the name of the
wakf, yielding a decent rent.
The main aim of the petitioner is that his sisters who are female heirs should not be recognised as beneficiary and only the sons of late SMS.
Mohammed Ghouse alone should be treated as beneficiaries. The father of the petitioner as Muthavalli of the first respondent wakf had entered
into a developers agreement on 15-5-1996 with M/s. Anil Suresh Constructions for developing the wakf property. They have paid an advance of
Rs. 40 lakhs to the wakf through Muthavalli. The petitioner''s father; SMS Mohammed Ghouse, died on 12-8-1998 M/s. Anil Suresh
Constructions had expressed their inability to perform the terms of the developers agreement and they wanted a refund of the advance paid by
them to the wakf. He had no other choice but to negotiate with the other developers to develop the property and to receive the advance to enable
them to refund the advance received. All the beneficiaries met on 19-5-1999 and authorised this respondent to hold fresh discussion with
interested parties to take up and develop the wakf property. All the beneficiaries unanimously endorsed and resolved that the proposal can be
carried out and in due course of negotiations only M/s. Jayalakshmi Holdings had discussions with the first respondent''s wakf. He called for a
meeting of all the beneficiaries on 28-5-1999 and appraised the beneficiaries of the negotiations and all the beneficiaries including the petitioner
were present at the meeting. The petitioner took part in the said discussions but he refused to sign in the minutes. Negotiation with the 2nd
respondent could not fructify and ended in a stalemate. The developers agreement was not put through and no commitment was made with the 2nd
respondent. All matters were discussed in the meeting in which the petitioner was present and he did not note down his dissent in the minutes, but
he cooly walked away and refused to sign when all the beneficiaries had signed. The petitioner relying upon the guideline value of the property only
shows his ignorance of the Real Estate Market, Guidelines do not reflect the market value. He has been acting against the interest of the wakf and
other. The respondent did not tow in line to exclude the daughters of the late SMS Mohammed Ghouse as beneficiaries, who are entitled to a
share in the wakf-alal-aulad estate. The petitioner pretends ignorance of the subsequent legal proceedings which had culminated in the tenants
splitting the rents and paying to the beneficiaries. The tenants and others filed I.A. No. 30347/82 in O.S. No. 7911/82 in the City Civil Court,
Chennai impleading the petitioner''s father as D1 and also other beneficiaries. The City Civil Court Chennai directed the tenants to apportion the
rent and pay to various beneficiaries. Ever since 1982, the rents are being paid only in that manner. The rents are being apportioned and paid to
the beneficiaries as per the orders of the Court. The remuneration Cheque for the Muthavalli is also received by him from the Lessee Paras 207
and 208 of Mulla Mohammaden Law do not apply to wakf-alal-aulad. The petitioner is entitled to only 1/143rd share. No acts of waste have
been alleged to warrant a receiver being appointed. Further in terms of Clause 9, the Muthavalli is entitled to alienate or dispose of the wakf
property in the interest of the wakf. The petitioner is fractional beneficiary and as such the applications are liable to be dismissed.
The applicant filed a common reply affidavit denying the various averments made in the counter affidavit, it is true that as per Clause 9 of the
wakf deed, authority was given to the beneficiaries to decide, by a majority of votes to dispose off by immovable property if it becomes
dilapidated or useless, necessitating its sale. Clause 5 of the wakf deed controls Clause 9. Neither the Muthavalli nor the majority of the
beneficiaries can resort to any activity or dealing or transaction which is repugnant to the spirit of Clause 5 of the wakf deed. Under the proposed
impugned deal, the entire property except a small portion will be alienated under the pretext of developing'' it, while, in fact, it is the destruction of
the wakf properly. Admittedly, neither any tender was invited nor any advertisement or publicity was given concerning the proposed project. The
stand taken in para 18 of the counter affidavit that only after entering into a fresh agreement with the second respondent the details could be looked
into, is basically immature and erroneous. The wakf property is sought to be destroyed under the pretext of the proposed impugned deal. The
failure on the part of the first respondent Muthavalli to take appropriate action in this regard amounts to non-functioning of the office of Muthawalli.
As against the monthly rent of Rs. 33,000/- paid by the tenant to the wakf, the tenant is getting more than Rupees 12,000/-. He has been collecting
his father''s share after his death. Clause 9 does not cover any transaction like the proposed impugned deal with the second respondent. The wakf
deed permits the sale of the property only if it becomes dilapidated or useless. The fact is that the Muthawalli is keeping the details of the proposed
impugned transaction hidden from the applicant as well as from the other beneficiaries. Under the terms of the wakf deed make out a clear case
against the Muthawalli thereby necessitating the appointment of a receiver, who alone can act in a responsible manner which will not effect the
interest of the wakf. But the first respondent relinquished the office of Muthawalli. Further, no prejudice will be caused to the first respondent or to
any other beneficiary if a receiver is appointed to function under the management of this Court.
Heard, the learned Counsel for the parties.
The points that arise for consideration are:
a. Whether the applicant/plaintiff has got a prima facie case and the balance of convenience is in his favour.
b. Whether there is any just and valid cause to appoint a receiver to conduct the Office of Muthawalli?
Points:--The applicant/plaintiff filed the suit for permanent injunction restraining D1 and his men from executing any sale, lease, mortgage of the
plaint schedule Wakf property to D2 or to any other concerns and also to appoint a receiver to conduct and run the office of the Muthavalli and to
streamline the administration of the wakf in accordance with the guideline stated in the wakf deed and directing the first defendant to furnish the
minutes and copies of all the documents entered into between wakf and lessees from the inception. The applicant had filed these interim
applications for relief of interim injunction and also to appoint a receiver to conduct and run the Office of Muthawalli. The learned Counsel for the
applicant mainly contended that the first defendant being Muthawalli had not acted in accordance with the provisions contained under the wakf
deed dated 28-5-57. From the 2nd respondent D1 bargained for 88,000 sq.ft built up area and valued the same at Rs. 17 crores, which is
alternative proposal in exchange of 8.84 acres of land. D1 had also valued the wakf property at Rs. 28 crores and 80 lakhs whereas according to
guideline value it is worth more than Rs. 42 crores. D1 also attempted to alienate the wakf property in contravention of the conditions of the
document and without taking the beneficiaries into confidence. According to the various provisions of the document, the property cannot be
alienated unless it is in dilapidated condition or useless. He is not collecting the rents from the tenants and on the other hand the tenants are
distributing the rental share to each beneficiary, which is contrary to the wakf deed. According to the document, Muthawalli alone is entitled to
collect the rents from the tenants and distribute will be caused to the first respondent or to any other beneficiary it a receiver is appointed to
function under the management of this Court.
Heard, the learned Counsel for the parties.
The points that arise for consideration are:
a. Whether the applicant/plaintiff has got a prima facie case and the balance of convenience is in his favour.
b. Whether there is any just and valid cause to appoint a receiver to conduct the office of Muthawalli?
Points:--The applicant/plaintiff filed the suit for permanent injunction restraining D1 and his men from executing any sale; lease mortgage of the
plaint schedule Wakf property to D2 or to any other concerns and also to appoint a receiver to conduct and run the office of the Muthavalli and to
streamline the administration of the wakf in accordance with the guideline stated in the wakf deed and directing the first defendant to furnish the
minutes and copies of all the documents entered into between wakf and lessees from the inception. The applicant had filed these interim
applications the income to the beneficiaries. The Muthawalli had unauthorisedly and unlawfully delegated his duty to the tenants. As per Clause 9 if
any immovable property is sold, he should purchase another suitable immovable property in the name of the wakf and the beneficiaries cannot
misappropriate the sale proceeds. D1 is also entering into all sorts of illegal transactions in violation of the Section 207 and 208 of the
Mohammedan Law.
Per contra, the first defendant mainly contended that he being Muthawalli is acting in accordance with the power conferred under the wakf
deed. He also relied upon Clause 8 & 9 of the wakf deed. It was only the petitioner''s father, who entered into a developers agreement on 15-5-
1996 with M/s Anil Suresh Constructions for developing the wakf property. But, they expressed their inability to perform the terms of the
agreement and they wanted to get refund of the advance paid by them to the wakf. In fact the petitioner also participated in the meeting held on
19-5-1999 and had signed the minutes. He also participated in the subsequent meeting held on 28-5-1999, but refused to sign the minutes. The
learned Counsel for D1 further stated that the developers agreement was not put through and negotiations ended in a stalemate with the second
respondent. Only after approval by a majority, the fresh developer agreement will be entered into. In short, he had been acting only in the interest
of the wakf and he never attempted to alienate the property in contravention of the conditions of the wakf deed and without taking the beneficiaries
into confidence. Only as per the order of the Court dated 8-12-1982, the tenants have been directed to apportion the rent and pay to the various
beneficiaries. The applicant/plaintiff has no prima facie case and as such the applicant is not entitled to any relief.
In order to appreciate the rival contentions of the parties, it is just and necessary to extract certain clauses under the wakf deed dated 28-5-
1957, according to Clause 5, the Muthawalli shall not in any event or under any circumstances mortgage, sell or in any other alienate or dispose off
in any manner of the endowed properties or any part thereof. However, Clause 9 provides that in the event of any immovable property becoming
dilapidated or useless, necessitating its sale, the Muthavalli shall upon a resolution in writing passed by a majority of the then existing beneficiaries,
dispose off the said property and purchase another suitable immovable property in the name of the wakf, yielding a decent rent. Under no event or
circumstances shall the beneficiaries distribute among themselves or otherwise misappropriate the sale proceeds. According to Clause 10, the
Muthavalli shall keep clear and distinct accounts of the income and expenses of the endowed properties which shall be open for inspection of the
beneficiaries with power to take copies. An annual balance sheet shall be prepared and copies there of furnished to all the beneficiaries.
As adverted to the main contention put forward by the learned Counsel for the applicant is that D1 being Muthavalli has acted contrary to
Clause 5, 9 and 10 of the document and as such the respondent should be restrained from alienating the property and the receiver should also be
appointed to conduct and run the office of Muthavalli. The allegations in the affidavit of the applicant are only vague. The appointment of receiver is
an extraordinary remedy and it has to be used only sparingly. The allegations now levelled by the applicant are not sufficient to appoint a receiver.
The main allegation put forward by the applicant, is that the rents are paid by the tenants directly to the beneficiaries in accordance with their shares
and it is against the spirit of the recitals of the document. It has been explained by the learned Counsel for the applicant that only by virtue of the
order of the Court, the tenants are directed to pay the amounts accordingly and as such it can be safely concluded that there is no mismanagement
on the part of the applicant. It is also necessary to state that the Muthavalli is entitled to sell the property only under certain contingencies and out
of the sale proceeds he should purchase another property in the name of the wakf. The applicant has not pointed out any case wherein the
property has been sold and sale proceeds have been appropriated by the beneficiaries without purchasing any property in the name of the wakf. It
is also seen from the counter that the petitioner himself has participated in the 2 meetings of the beneficiaries held on 19-5-1959 and also on 28-5-
1999. But the petitioner has signed the minutes for (he meeting held on 19-5-1999, but refused to sign the minutes for the meeting held on 28-5-
1999. There is no material to show that D1 has been acting contrary to the recitals of the wakf deed. But on the other hand he held the meetings of
the beneficiaries and only in accordance with the decision of the majority, the Muthavalli had been acting. As adverted to, the rents have been paid
by the tenants directly to the beneficiaries only by the order of the Court and under the circumstances, I am of the view that the applicant has failed
to establish that he has got a prima facie case and the balance of convenience is in his favour. However, the property of wakf has to be protected
and as such sufficient safeguard has to be necessarily provided to prevent possible loss or damage in future. However, it is made clear that the
applicant has not made out any case for appointment of a receiver to conduct and run the office of the Muthavalli.
For the reasons stated above A.No. 245/2000 is dismissed. Although D1 is empowered to sell, lease or mortgage the wakf property, he is
directed to comply with Clause 5 and 9 of the wakf deed and P.A. 244/2000 is ordered accordingly.