Madras High Court
Syed Mazhar Hussain vs The Tamil Nadu Waqf Board on 8 January, 2025
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
CRP.Nos.2073, 2074, 2080 & 2293 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 08.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
CRP. Nos.2073, 2074, 2080 & 2293 of 2024
and CMP.Nos.11108, 11109, 11132 of 2024
CRP.No.2073 of 2024
Syed Mazhar Hussain ... Petitioner
Vs
1. The Tamil Nadu Waqf Board
Rep by its Chief Executive Officer, No.1 Jaffer Syrang Street,
Vallal Seethakathi Nagar, Chennai.1
2.The Chairman
Tamil Nadu Waqf Board,
No.1 Jaffer Syrang Street, Vallal Seethakathi Nagar, Chennai.1
3.The Election Officer / Superintendent of Waqfs,
Chennai Zone, No. 139, Dr.Besant Road, Ice House, Triplicane, Chennai 5
4. H.Mohammed Sajath
5. Syed Kasim Sakaaf,
6. Syed Ajaz ahmed
7.H.W.Shanaaz
8.H.Gayaz Ali
9.Mubeen Aamina
10.Haseena Bi
11.Syeda Ghousia Begum,
12. Showkath Jahan
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024
13.Syed Latheef
14.G.M.Syed Fasi Mohammed
15.Shabana Ayisha
16.Fathima Begum
17.Syed Thula Basha
18.S.A. Rahman,
19.Syed Faizullah,
20.Syed Akthar Hussain
21.The Secretary,
22.Miss.Habeebunnissa Begum ... Respondents
CRP. No.2074 of 2024
1.Syed Ajaz Ahmed
2.Haseena Bi
3.Syed Akbar Sakkaff ... Petitioners
Vs
1.Syed Latheef
2.G.M. Syed Fasi Mohammed
3.Shabana Ayisha
4.Fathima Begum
5.Syed Thula Basha
6.S.A. Rahman,
7.Syed Faizullah,
8.Syed Akthar Hussain
9.Miss.Habeebunnissa Begum
10.The Tamil Nadu Waqf Board
Rep by its Chief Executive Officer, No.1 Jaffer Syrang Street,
Vallal Seethakathi Nagar, Chennai.1
11.The Election Officer / Superintendent Of Waqfs
Chennai Zone, No. 139, Dr.Besant Road, Ice House, Triplicane, Chennai 5
12.Syed Mazhar Hussain
13.H.Mohammed Sajath
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024
14.Syed Kasim Sakaaf,
15.H.W.Shanaaz
16.H.Gayaz Ali
17.Mubeen Aamina
18.Syeda Ghousia Begum
19.Showkath Jahan
20.Dadashamakkan Wakf
Rep. by the present committee,
Rep. by the present secretary,
No.5, Dargah St, Dadashamakkan, Chennai -12. ... Respondents
CRP. 2080 of 2024
1.Syed Mazhar Hussain
2.Syed Kasim Sakaaf
3.Dadashamakkan Wakf
Rep. by the present committee,
Rep. by the present secretary,
No.5, Dargah St, Dadashamakkan, Chennai -12. .. Petitioners
Vs
1.Syed Latheef
2.G.M.Syed Fasi Mohammed
3.Shabana Ayisha
4.Fathima Begum
5.Syed Thula Basha
6.S.A.Rahman
7.Syed Faizullah
8.Syed Akthar Hussain
9.Miss.Habeebunnnissa Begum
10.The Tamil Nadu Wakf Board
Rep by its Chief Executive Officer,
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024
No.1 Jaffer Syrang Street, Vallal Seethakathi Nagar,
Chennai.1
11. The Election Officer/Superintendent of Waqf
Chennai Zone, No. 139, Dr.Besant Road,
Ice House, Triplicane, Chennai 5
12. H.Mohammed Sajath
13.Sted Ajaz Ahmed
14.H.W.Shanaaz
15.H.Gayaz Ali
16.Mubeen Aamina
17.Haseena Bi
18.Syeda Gousia Begum
19.Showkath Jahan
20.H.Siraj Ali
21.Syed Akbar Sakkaff .. Respondents
CRP. 2293 of 2024
1.H.W.Shanaaz
2.H.Gayaz Ali
3.Showkath Ali ... Petitioners
Vs
1.Syed Latheef
2.G M Syed Fasi Mohammed
3.Shabana Ayisha
4.Fathima Begum
5.Syed Thula Basha
6.S A Rahman
7.Syed Faizullah
8.Syed Akthar Hussain
9.Miss Habeebunnisa Begum
10.The Tamil Nadu Waqf Board,
Rep. by its Chief Executive Officer,
No.1, Jaffar syrang Street,
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024
Vallal Seethakathi Nagar, Chennai-1
11. The Election Officer/Superintendent of Waqf
Chennai Zone, No.139, Dr.Besant Road,
Ice House, Triplicane, Chennai-5
12.Syed Mazhar Hussain
13.H Mohammed Sajith
14.Syed Kasim Sakaaf
15.Syed Ajaz Ahmed
16.Mubeen Aamina
17.Haseena Bi
18.Syeda Ghousia begum
19.Dadashamakkan Wakf
Rep. by the present committee,
Rep. by the present secretary,
No.5, Dargah St, Dadashamakkan, Chennai -12.
20.H Siraj Ali
21.Syed Akbar Sakkaff ... Respondents
Prayer in CRP.No.2073 of 2024: Petition filed under Article 227 of the
Constitution of India read with Section 83(9) of the Wakf Act, 1995, set aside the
fair and decretal order dated 25.04.2024 made in O.A.No.31 of 2022 on the file of
Tamil Nadu Waqf Tribunal, Chennai.
Common Prayer in CRP.No.2074, 2080 and 2293 of 2024: Petitions filed under
Article 227 of the Constitution of India read with Section 83(9) of the Wakf Act,
1995, set aside the fair and decretal order dated 25.04.2024 made in O.A.No.79 of
2022 on the file of Tamil Nadu Waqf Tribunal, Chennai.
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024
CRP. 2073 of 2024
For Petitioner(s):
M/s.N.A.Nissar Ahmed, Senior Counsel
M/s.KOWSER SULTHANA I.
For Respondent(s):
Mr.P.Sanjay Prasad for R13
S.JERALD LENIN FOR CAVEATOR R20
P.VINCY RANI FOR CAVEATOR R15
T. SAIKRISHNAN FOR R1
Mrs.Hema Sampath, Senior Counsel for
Mr.A.Masood Ahmed for R6 & R10
Mr.A.Muthukumar for R7, 8 and 12
Mr.V.Raghavachari,Senior Counsel
for Mr.Y.Kaja Navas for R14 & 17
CRP. 2074 of 2024
For Petitioner(s)(s):
Mrs.Hema Sampath, Senior Counsel
for Mr.A.Masood Ahmed for R6 & R10
For Respondent(s):
Mr.P.Sanjay Prasad for R1
S.JERALD LENIN FOR CAVEATOR R8
P.VINCY RANI FOR CAVEATOR R3
T. SAIKRISHNAN FOR R10
Mr.N.A.Nissar Ahmed, Senior Counsel
for M/s.I.Kowser Sulthana for R14 and R20
Mr.A.Muthukumar for R15, 16 and 19
Mr.V.Raghavachari,Senior Counsel
for Mr.Y.Kaja Navas for R2 & 5
CRP. 2080 of 2024
For Petitioner(s)(s):
Mr.N.A.Nissar Ahmed, Senior Counsel
for M/s.I.Kowser Sulthana for R14 and R20
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024
For Respondent(s):
Mr.P.Sanjay Prasad for R1
S.JERALD LENIN FOR CAVEATOR R8
P.VINCY RANI FOR CAVEATOR R3
T. SAIKRISHNAN FOR R10
Mrs.Hema Sampath, Senior Counsel
for Mr.A.Masood Ahmed for R13, 17, 20 & 21
Mr.A.Muthukumar for R15, 14 and 19
Mr.V.Raghavachari,Senior Counsel
for Mr.Y.Kaja Navas for R2 & 5
CRP. 2293 of 2024
For Petitioner(s):
Mr.A.Muthukumar
For Respondent(s):
Mr.P.Sanjay Prasad for R1
S.JERALD LENIN FOR CAVEATOR R8
P.VINCY RANI FOR CAVEATOR R3
Mr.C.Shankar, Standing Counsel for R10
Mrs.Hema Sampath, Senior Counsel
for Mr.A.Masood Ahmed for R15, 17, 20 & 21
Mr.V.Raghavachari,Senior Counsel
for Mr.Y.Kaja Navas for R2
Mr.N.A.Nissar Ahmed, Senior Counsel
for M/s.I.Kowser Sulthana for R12, 14 and 19
COMMON ORDER
Challenging the orders passed by the Tamil Nadu Waqf Tribunal, Chennai
dated 25.04.2024 made in O.A.Nos.31, 79, 79 & 79 of 2022, the present revisions
have been filed.
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024
2. O.A.No.79 of 2022 has been filed under Section 83(1) and (2) of the
Waqf Act, 1995 (as amended in 2013) seeking for a declaration, to declare that the
election as conducted by the 2nd respondent dated 03.10.2021 and the subsequent
proceedings of the 2nd respondent dated 08.10.2021 and 12.10.2021 in electing the
applicants 1 to 4 and the respondents 3 to 12 as null and void, illegal and contrary
to the by-laws of the Dadasha Makkan Waqf and set aside the same; to declare that
the selection of 5th respondent dated 03.10.2021 is null and void and contrary to
the by-laws of the waqf on the ground that he is not eligible to participate in the
election since he is not a descendant of Dadasha as per clause 11 of the by-laws of
the waqf and set aside the same; to declare that the selection of office
bearers/applicants 1 to 4 and the respondents 3 to 12 dated 22.10.2021 as
conducted by the 2nd respondent at the office of the Superintendent of Waqf, Ice
house, Chennai is null and void, illegal and contrary to the by-laws of the Dadasha
Makkan Waqf and set aside the same.
3. O.A.No.31 of 2022 has been filed under Section 83(1) and (2) of the
Waqf Act, 1995 (as amended in 2013) to set aside the order of the 1st respondent
dated 03.12.2021 in Proc.No.619/99/B9/Chen and the resolution of the Tamil
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024
Nadu Waqf Board dated 28.10.2021 as null and void
4. Background of the case in O.A.No.79 of 2022 are as follows:
4.a.The Dadasha Makkan Waqf is a registered and notified waqf governed
by the scheme framed by the Tamil Nadu Waqf Board. As per the proforma of the
waqf, the rule of succession of the mutawalli is hereditary from the descendants of
saint Dadasha as per the waqf deed. The learned City Civil Court Madras in
O.S.No.75 of 1909 dated 21.02.1910 framed the scheme decree that the office of
the mutawalli is by rotation from among the descendants of six sons and two
daughters of the saint Dadasha. The plaintiff and the defendants in O.S.No.75 of
1909 are the only descendants of saint Dadasha. A scheme was framed in the said
suit for the administration of the waqf, according to which each branch of the
descendants of Dadasha should manage the waqf for 1 year. However the scheme
was not implemented because it was not possible to manage the waqf for 1 year by
each branch in rotation. Therefore the Bye laws of the waqf were framed by the
Tamil Nadu Waqf Board on 15.07.2010. The saint Dadasha had six sons and two
daughters. The daughters of the saint got half shares. Hence there are seven
branches consisting from the six sons and two daughters of the saint. As per
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024clauses 9, 11 and 12 of the by-laws each branch has to select two members to the
execution committee. The elected 14 members have to select the office bearers in
the presence of the Waqf Board officials with the prior permission from the Tamil
Nadu Waqf Board.
4.b.The Waqf Board directed the Election Officer to conduct the election
only on 03.10.2021 and as per the bye-laws two members were selected from their
respective branch. The Election Officer assumed and took an illegal view that, he
has to select 14 members from seven branches as per clause 12 of the bye-laws
and thereby has violated the clause 9 of the bye-laws, since clause 12 speaks only
about, “the appointment of the committee” only after selection of 14 members
from 7 branches by the descendants of Dadasha under clause 9. Contrary to the
bye-laws he selected 14 members and passed a proceedings dated 08.10.2021 and
12.10.2021 without any prior permission of the Waqf Board. It was contended that
he has conducted the election beyond the period of one day which is absolutely
illegal and further, has violated the majority decision from the branches 1, 3, 5 and
6 thereby defeated the rights of the 79 descendants from the respective branch. In
the 2nd branch, he has wrongly selected the non- descendants of Dadasha. One
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024Syed Kasim Sakaaf is not the descendants of Dadasha. As per the decree passed in
O.S.No.75 of 1909, the 5th plaintiff namely Ikramunnisa Saheba had 2115 shares.
Admittedly she did not have any issues or any other legal heirs. As per the
genealogical tree of Dadasha as filed in O.S.No.75 of 1909, she is the only
daughter of Syed Bahadoor Hussain alias Doola Badshah and his 1 wife Zaharu
Begam.
4.c. The said Ikramunnisa alias Manjuli Begam sold her share 1440 to one
Syed Ahmed Sakaaf, who is the grandfather of the Syed Kasim Sakaaf vide a share
purchase deed dated 29.04.1919 and 675 shares to Syed Samad Sakaaf, who is the
son of Syed Ahmed Sakaaf. The Syed Ahmed Sakaaf having two sons and one
daughter namely 1. Syed Samad Sakaaf (died, unmarried), 2. Syed Mohammed
Sakaaf and 3. Noorjahan Begam. The share purchased was admitted bye Syed
Ahmed Sakaaf, Syed Mohammed Sakaaf and Noorjahan Begam before the Chief
Judge, Small Causes Court, Chennai in M.P.No.508 and 570 of 1943 in L.C.No.29
of 1916 and the Chief Judge Small Causes Court after elaborate enquiry declared
that the father of Syed Mohamed Sakaaf and his sister Noorjahan Begam are the
legal heirs of the share purchaser. Admittedly, Syed Kasim Sakaaf’s father and
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024
grandfather were never claimed all these years that they are the descendant of
Dadasha. Admittedly the ancestors of Syed Kasim Sakaaf are not a party in
O.S.No.75 of 1909 and their names are also not in the genealogical tree of saint
Dadasha. Hence, the 5th respondent is not a descendant of Dadasha. As per the
bye-laws committee shall be appointed in the presence of the beneficiaries and
admittedly the present committee was not appointed in the presence of the
beneficiaries on 03.10.2021. As on date the election was not approved by the
general body. On 22.10.2021, the Election Officer has called only 9 members to
his office and selected the office bearers of the waqf and thereby violated clause
12 of the bye-laws. There are 139 beneficiaries, out of them 136 are descendants
of Dadasha and 3 of them are legal heirs of the share purchasers. From the first
selection/election in 2010 it has been mutually agreed by the beneficiaries that,
who are all unable to attend may select 2 members from their respective branch by
giving the selection letter to the Election Officer, the beneficiaries who are
physically present may raise their hand both joined together and the members will
be selected based upon the majority. The present selection dated 03.10.2021 was
not conducted as per the bye-laws and the said usage and customs of the waqf and
the Election Officer has refused to accept such consent letters belatedly on
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024
08.10.2021. Hence challenged the election as conducted by the 2nd respondent
dated 03.10.2021 and the subsequent proceedings dated 08.10.2021 and
12.10.2021 before the Tamil Nadu Waqf Tribunal. The Tamil Nadu Waqf Tribunal
vide the impugned order held that the election conducted on 03.10.2021 and the
subsequent proceedings dated 08.10.2021 and 12.10.2021 in electing the
applicants 1 to 4 and the respondents 3 to 12 therein as null and void and also held
that the selection of the 5th respondent dated therein is contrary to bye-laws on the
ground that he is not eligible to participate in the election since he is not a
descendant of Dadasha as per clause 11 of the bye-laws of the waqf.
5.Background of the case in O.A.No.31 of 2022 are as follows:
5.a.Dadashamakkan Waqf, Perambur, Chennai is a registered and notified
waqf governed by a scheme framed by the Waqf Board. As per the scheme of the
waqf, the waqf shall be managed by a Executive Committee elected once in three
years in the General Body meeting by the beneficiaries as per clause 10 of the Bye
law. As per clause 9 of the bye law selection/election of office bearers will be
selected within 7 branches, each branch to select/elect 2 members only from their
respective branch. Elected 14 members are entitled to select/elect the office
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024bearers in the presence of Waqf Board officials with the prior permission of the
Tamil Nadu Waqf Board. As per clause 12 of the Bye law the members of the
committee shall be appointed in the presence of Waqf Board official at a meeting
of beneficiaries of the waqf by the resolution of the majority of the members
present and entitled to vote. Casting vote or abstaining from voting is at the
discretion of the eligible member. On 03.10.2021 election was conducted as per
the bye law by, the Election Officer. Certain contestants produced alleged consent
letters of beneficiaries to have proposed their name. The alleged beneficiaries were
not present on the election date. The contestant produced such letters to the
election officer. The election officer declined to accept such consent letters as the
same was not in consonance with clause 9 and 12 of the bye law. In respect of the
1″ branch there was a tie each group securing 7 votes. Therefore the election
officer directed the 1″ branch to come up with two selected representatives
amongst themselves failing which lot system would be adopted. In respect of 2nd
member of the 6th branch, the election officer directed to come up with one
representative amongst themselves as three persons contested and 7 persons voted
in favour of the 1st contestant.
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024
5.b. It is reliably understood that the Waqf Board had orally instructed the
Election Officer not to declare results on 03.10.2021. The successful candidates on
coming to know of the same moved the Chief Executive Officer who in turn
directed the Election Officer to declare results as per law and not to withhold
results on any one’s instructions. The Election Officer pursuant to the same
declared the results on 08.10.2021 and 12.10.2021. On 12.10.2021 the Election
Officer declared selected candidates from branches 1 and 6 and required the 14
selected committee members to attend the meeting on 20.12.2021 for selecting
office bearers for the managing committee. Vide proceedings dated 12.10.2021,
the Election Officer informed that selection of office bearers would be held on
20.10.2021. However on 13.10.2021 the Election Officer affixed notice in the
waqf that due to administrative reasons it would not be scheduled on 20.10.2021
and that the date would be intimated later. Mr.H.Mohammed Sajath filed
O.A.No.98/21 to declare the notice dated 13.10.2021 of the Election Officer as
null and void and to convene meeting for selection of office bearers. The Election
Officer immediately on 21.10.2021 affixed a notice informing meeting to be held
on 22.10.2021 and on 22.10.2021 the office bearers were elected in the presence
of the Election Officer. Mr.H.Mohammed Sajath received a notice on 25.10.2021
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024
in RC.No.619/99/B9/CH dated 22.10.2021 issued by the Waqf Board calling upon
the applicant and respondents herein to attend enquiry on 28.10.2021 at 3.30 PM
with regard to grant of approval to the newly elected managing committee,
revoking direct management and to consider and enquire the petition objecting the
election of newly elected committee.
5.c. Challenging the same, application was filed in O.A.100/21 to declare
the notice dated 22.10.2021 as null and void and to direct the Waqf Board to
handover charge to the elected committee and sought for stay of all further
proceedings pursuant to the notice dated 22.10.2021. While such being the
position the 1 respondent vide proceedings dated 03.12.2021 in Proc.
No.619/99/B9/Chen pursuant to the resolution of the Waqf Board dated
28.10.2021 has ordered fresh election. The said impugned order has been passed
without any notice to applicant therein and other majority of successful
candidates. The respondents 4 to 13 are elected office bearers and 14 to 17 are
committee members. The respondents 18 to 20 had contested and lost in the
elections. The applicant was elected as treasurer. When elections have been
declared the respondents 1 and 2 have no authority or jurisdiction but merely to
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024
record the change in management as per Section 42 of the Waqf Act. Challenging
the said order, this application was filed before the Tribunal. The Tribunal vide
impugned order disposed of the application directing the Waqf Board to take
necessary steps to conduct selection hereafter to the Dadasha Makkan Waqf in
accordance with the bye-laws after making necessary modifications to the same by
invoking the provisions of Section 69(4) of the Waqf Act, 1995 (as amended in
2013).
6. Since the issues involved in these revisions are with regard to the election
conducted by the Waqf Board and the civil rights of the parties to be elected as
office bearers, common arguments have been advanced by both sides. Hence,
these revisions are disposed of by way of this common order.
7. Mrs.Hema Sampath and Mr.N.A.Nissar Ahmed, learned Senior Counsel
for the revision petitioners mainly submitted that the Waqf Tribunal has no
jurisdiction to decide the civil rights of the parties. The issue of descendants was
never raised all these years. The fifth respondent in O.A.No.79 of 2022/ revision
petitioner shown as one of the beneficiaries under the bye-laws and three elections
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024
have been conducted all these years as per the bye-laws. Further, the scheme
approved by the Waqf Board has not been challenged all these years and no oral
evidence has been let in by the applicants. This Court while deciding the writ
petition in W.P.No.26402 of 2021 have never directed that the issue of
descendants has to be decided. No challenge has been made to the election of two
members each from all branches. The parties in earlier litigations have clearly
admitted their relationship, whereas, the Tribunal has ignored the statements of the
parties before the various authorities and just relied upon the so-called
genealogical tree/Ex.P2 filed by the applicants in the impugned order.
8. According to both the learned Senior Counsel, the genealogical tree
relied upon by the applicants was not filed in the suit of the year 1909, i.e., in
O.S.No.75 of 1909. The Tribunal has proceeded as if the suit in O.S.No.75 of
1909 is a scheme suit and scheme has been framed therein. According to the
learned senior counsel, the said suit is only for a declaration that the suit schedule
properties is charged with trust for performance of oors and neither a scheme
decree nor the issue of declaration for descendant of saint Dadashah was the
subject matter of the suit. The alleged genealogy tree/Ex.P2 does not form part of
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024
the decree in O.S.No.75 of 1909. Ex.P2 is incomplete and the same does not
disclose the Saint Dada had how many sons and daughters. Therefore, the suit is
not for a declaration of relationship of the parties to the suit for the saint Dada sha.
The decree and judgment in O.S.No.75 of 1909 was not produced or marked
before the Waqf Tribunal. The alleged genealogical tree is not the certified copy
obtained from the judgment of the O.S.No.75 of 1909. The alleged genealogical
tree is only a genealogy of sharers not the descendants which has been filed in a
different proceedings in LC.No.29 of 1916 and the same is not way connected to
the descendant issue, but the Tribunal has proceeded as if the genealogy is binding
on the parties and shifted the burden on the other side. Hence, it is the main
contention that the Tribunal has gone beyond the issue and without letting any oral
evidence to prove the relationship has erroneously held that the fifth respondent in
O.A.No.79 of 2022 is not a descendant to saint Dada Shah.
9. It is the further contention of Mr.N.A.Nissar Ahmed, learned senior
counsel that though entire election conducted in October 2021 in respect of 14
committee members has been set aside, since the tenure is said to be expired
during the year February 2025. Further, the order of the Tribunal declaring the 5th
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024
respondent to be not the descendants has serious consequences and impact on the
civil rights of the 5th respondent in the application. Hence, without any proof
merely on the basis of some incomplete document which has not been proved in
the manner known to law, the Tribunal has come to the conclusion that 5th
respondent is not a descendant of Dadasha, that too, after 100 years.
10. It is the further contention of Mrs.Hema Sampath, learned senior
counsel that there was no proxy voting. The members of all the branches were
present and voted in person. The election of the committee members was held on
07.07.2018. Two persons from each of the branches were present and have signed
the record. Therefore, the finding of the Waqf Tribunal is wrong on the face of
record. In support of their submissions, they relied on the following judgments:
a.State of Bihar vs. Radha Singh and others reported in (1983) 3 SCC 118
b.Managing Trustee vs. Haja Noordeeen Sahib @ Alhaj Dr.S.Syed Kamil Sahib
and others reported in 2018 (3) CTC 801
c.LalkhanPallivasal vs. Shahinsha Khaja Mainudeen made in CRP(PD).No.813 of
2023 dated 31.07.2024
d.Kiran Singh and others vs. Chaman Paswan and others reported in 1954 AIR
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024(Supreme Court) 340
e.Ashwani Kumar Singh vs. U.P.Public Service Commission and others reported
in 2003 (11) SCC 584
f.Kothamasu Kanakarathamma and others vs. State of A.P. and others reported in
1965 AIR (Supreme Court) 304
g.Devsing Ramchandra Chavan vs. The State of Maharashtra and others reported
in 2022 (5) MhLJ 138
11. Whereas, on the other hand, Mr.V.Raghavachari, learned senior counsel
appearing for the respondents 14 and 17 in CRP.No.2073 of 2024 defending the
Tribunal order submitted that the trustees and sharers are different. Right to office
given by way of inheritance, the same is inalienable. As per the judgment in
O.S.No.75 of 1909, one Ikramunnisa alias Manjuli Begam sold her share 1440 to
one Syed Ahmed Sakaaf, who is the grandfather of the Syed Kasim Sakaaf/5 th
respondent in the impugned order vide a share purchase deed dated 29.04.1919
and 675 shares to Syed Samad Sakaaf, who is the son of Syed Ahmed Sakaaf.
Therefore, the genealogical tree was appended in the suit in O.S.No.75 of 1909
clearly held that only the parties to the suit are descendants of the saint Dadashah.
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He would further submit that when the matter has already reached finality, it is
binding on all the sharers. Genealogical tree is also filed before the Waqf Tribunal.
12. With regard to the jurisdiction of the Waqf Tribunal,
Mr.V.Raghavachari, learned senior counsel submitted that it is a well settled law
that the Waqf Tribunal is deemed to be a Civil Court having same powers under
Code of Civil Procedure, 1908, in other words, dispute can be tried like a suit by
the Waqf Tribunal. In support of his submissions, he placed reliance in the
judgment of the Hon’ble Apex Court in the case of S.V.Cheriyakoya Thangal vs.
S.V.P.Pookoya and others reported in 2024 SCC OnLine SC 1586. Hence,
submitted that the impugned order does not require interference.
13.Heard both sides and perused the materials placed on record.
14. Since the issue revolve around the suit in O.S.No.75 of 1909, this Court
has to see whether any scheme has been framed in the said suit. It is relevant to
note that the original judgment of the suit has not been placed before the Tribunal,
only the genealogical tree said to have been filed in the above suit has been filed
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as a certified copy before the Tribunal. The said document/Ex.P2 is incomplete,
thus, in order to find out the nature of the suit, this Court has called for the Suit
Register and the judgment which was available in the City Civil Court, Chennai.
On perusal of the above binding register, the following points arises for
consideration in these revisions:
1. Whether the Tribunal was right in holding that the genealogical tree form
part of the decree in O.S.No.75 of 1909 and was acted upon for more than 100
years?
2.Whether the Tribunal was right in placing the burden on the revision
petitioners?
Point 1 & 2
15. As far as the suit in O.S.No.75 of 1909 is concerned, the said suit was
filed only for a declaration that the suit property is charged with trust for
performance of ooroos in the dargah of Dadah Shah and for the maintenance of the
said parties to the suit who are his heirs and descendants for an account to be taken
of the collections made by the first defendant from the said properties and payment
to the partition of their respective shares and for a provisions to be made for
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management of the property in future and for the collection of the rents and
disposal thereof and for recovery of the costs of the suit from the first defendant.
16. The said suit has not been filed under Section 92 of Code of Civil
Procedure for framing scheme. On perusal of the above judgment by the Court, it
shows that the plaintiffs sought a relief that the income of the property specified in
the plaint is after meeting the expenses of the Oorus divisible amongst the heirs of
Daday Shah. Whereas, the defendants 1, 2, 3, and 9 inter alia contended that there
was an absolute declaration as in property for trust purpose. Ultimately, the Court
has negatived the defendants case and decree was passed declaring that the plaint
property is charged with the trust for the performance of the oorus in the Darga of
Daday Shah and that the surplus is divisible between the plaintiff and the
defendants 1 to 9, the representatives of Syed Bahadur Hussain alias Doola Basha
being the 5th plaintiff, 7th plaintiff, 2nd and 9th defendant. Any sum may remain of
net balance after the loss the final account will be dividable amongst the aforesaid
heirs in proportionate to their respective shares. The descendant of each other
son’s and daughters of Daday Shah or their assigns will be entitled to collect the
rents and perform the ooroos of one year beginning from 1st March and the pursue
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will be filed. The 5th plaintiff, 7th plaintiff, 2nd defendant and 9th defendant will
begin the management and collect rents from 1st March. Plaintiffs will be entitled
to recover their cost from the estate and other bear their own costs.
17. The above decree and judgments makes it clear that the issue of the
descendants of Daday Shah was not decided in the above suit. The suit has been
decided only with regard to the issue as to how to divide the shares and no scheme
has been framed. It is to be noted that in the case of The Executive Committee,
Dadasha Makkan Trust vs. The State of Tamil Nadu represented by its Secretary
Department of Wakfs reported in 2010 (2) C.W.C. 22, this Court has held as
follows:
“7. As far as the contention that the decree passed by the Civil Court
in O.S.No.75 of 1909 dated 21.2.1910 is a scheme decree is
concerned, on a reference to the decree passed by the Civil Court, it
is true that one cannot come to a conclusion that it is a scheme
decree, as section 92 of the Code of Civil Procedure has not been
followed.
…
9. By applying the dictum laid down by the Supreme Court as well as
the Division Bench of this Court relating to section 92 of the Code of
Civil Procedure, certainly there is a doubt about the nature of decree
passed by the Civil Court in this case as to whether it is a scheme
decree or not. But, that is not the main issue, in my view, since the
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024far. In fact, it is the admitted case that the 5th respondent himself
was appointed by the second respondent, Tamil Nadu Wakf Board as
per its resolution dated 29.5.2005, based on which the 5th
respondent took charge as Muthavalli. The petitioner, who, on the
face of the pleadings is espousing the cause of the 5th respondent,
cannot deny that the 5th respondent was appointed as Muthavalli
only by the 2nd respondent, the Wakf Board. A reference to the
decree passed by the Civil Court shows that certainly it does not
contain any clause to the effect that any other authority or Court
other than the Wakf Board should make appointment or removal of
Muthavalli, so as to enable the State Government to exercise its
powers.
18. Therefore, from the above judgment, it can be easily held that the issue
of descendant was not the issue in the above suit. It is also relevant to note that the
very applicants who filed O.A.No.79 of 2022 have pleaded in the application that
though there was a scheme in O.S.No.75 of 1909, the scheme was not
implemented because it was not possible to manage the waqf for one year by each
branch in rotation. Therefore, the bye-laws of the waqf were framed by the Tamil
Nadu Waqf Board on 15.07.2010. The saint Dadasha had six sons and two
daughters. The daughters of the saint got half shares. There are seven branches
consisting from the six sons and two daughters of the saint. The very pleading in
the application itself clearly indicate that the parties are not following the so-called
scheme decree in O.S.No.75 of 1909, whereas, the bye-laws have been framed by
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the Tamil Nadu Waqf Board on 15.07.2010 which was gazetted and elections have
been conducted based on the bye-laws.
19. Dadasha Makkan Waqf is a registered and notified waqf under the
supervisory control of the Tamil Nadu Waqf Board governed by the scheme
framed by the Board dated 15.07.2010. Ex.P26 is the Bye-laws of the Waqf, as per
the bye-laws/scheme framed by the Tamil Nadu Waqf Board under Clause 10, the
Wakf shall be administered by the Executive Committee consisting of seven office
bearers and seven executive committee members’ tenure shall be three years. There
are seven branches, each branch select/elect 2 members from their respective
branch only. As per clause 12, members of the committee shall be appointed in the
presence of the Wakf Board official at meeting of beneficiaries of the Wakf by the
resolution of the majority of the members present and entitled to vote. The list of
beneficiaries are the descendants of the saint Dadah Shah and the same form part
of the bye-law. It is an admitted fact that after framing of the scheme in the year
2010 by the Tamil Nadu Wakf Board, three elections have been conducted and the
fifth respondent in O.A.No.79 of 2022 had also participated in the elections. The
dispute arose only when the election was scheduled to be held on 03.10.2021, in
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that election also, it appears that the petitioner in CRP.No.2073 of 2024 came out
as successful candidate from the respective branch in the said election and the fifth
respondent in the impugned order was elected as president. However, the Tamil
Nadu Waqf Board ordered re-election on the ground that the election has not
properly conducted in accordance with the bye law by its proceedings dated
03.12.2021 which is also marked as Ex.P49.
20. The said proceedings ordering re-election was challenged before this
Court in W.P.No26402 of 2021. This Court, by order dated 05.04.2022 while
dismissing the petition held that Wakf Board order dated 03.12.2021 is untenable
and granted interim order and ultimately relegated the matter to the Waqf
Tribunal. Once again, writ petitions in W.P.Nos.15977 of 2021 etc batches were
filed, wherein, this Court, by order dated 10.10.2022 directed the parties to raise
their dispute before the Waqf Tribunal, if desired. Thereafter, it appears that
O.A.No.79 of 2022 has been filed. The Waqf Tribunal relying solely on the
genealogical tree of Dadasha/Ex.P2 has held that the fifth respondent therein is not
a descendant.
21. On perusal of the Ex.P2 makes it clear that the genealogical tree has
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been originally filed in LC.No.29 of 1916 for a different issue. The certified copy
has been obtained in LC.No.29 of 1916 only while filing the application in the
Waqf Tribunal. O.S.No.75 of 1909 is added in the top of the genealogical tree. It is
projected before the Waqf Tribunal as if Ex.P2 was the original genealogical tree
filed in O.S.No.75 of 1909, whereas, the said genealogical tree was filed in a
different case and a certified copy was obtained and filed before the Tribunal as if
it was the genealogical tree filed in the original suit.
22. On perusal of Ex.P2 indicate that it only relates to the sharers and not
the descendants. As in branch 1, second defendant/Junnoo Mean is repeated in
branch 7. Similarly, as in branch 2, Bee Begam is repeated in branch 6. The
contents in the genealogical tree is incomplete, therefore, without establishing
these facts just relying upon the genealogical tree which has been filed in a
different proceedings as that of genealogical tree in O.S.No.75 of 1909, the Waqf
Tribunal has come to the conclusion that the fifth respondent is not a descendant.
It is relevant to note that the question of proving the genealogical tree, the Hon’ble
Apex Court in the case of State of Bihar and Radha Krishna Singh and others
reported in (1983) 3 SCC 118 has laid down the following principles:
” 19.The principles governing such cases may be summarised thus:
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CRP.Nos.2073, 2074, 2080 & 2293 of 2024“(1) Genealogies admitted or proved to be old and relied on in
previous cases are doubtless relevant and in some cases may even be
conclusive of the facts proved but there are several considerations
which must be kept in mind by the courts before accepting or relying
on the genealogies:
a. Source of the genealogy and its dependability.
b. Admissibility of the genealogy under the Evidence Act.
c. A proper use of the said genealogies in decisions or judgments on
which reliance is placed.
d. Age of genealogies.
e. Litigations where such genealogies have been accepted or
rejected.
(2) On the question of admissibility the following tests must be
adopted:
a. The genealogies of the families concerned must fall within the
four-corners of Section 32(5) or Section 13 of the Evidence Act.
b. They must not be hit by the doctrine of post litem motam.
c.The genealogies or the claims cannot be proved by recitals,
depositions or facts narrated in the judgment which have been held
by a long course of decisions to be inadmissible.
d.Where genealogy is proved by oral evidence, the said evidence
must clearly show special means of knowledge disclosing the exact
source, time and the circumstances under which the knowledge is
acquired, and this must be clearly and conclusively proved.”
23. In light of the above principles in proving the genealogy, this Court is of
the view that the Tribunal has not followed any of the settled position of law and
merely relied upon Ex.P2 as that of genealogical tree filed in O.S.No.75 of 1909.
The fact remains that the genealogical tree is filed in LC.No.29 of 1916 and the
certified copy have been obtained and filed before the Tribunal appended to
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O.S.No.75 of 1999.
24. It is further to be noted that one Ikramunnisa Begum said to be a
descendant of saint Dada sha, which is admitted by all the parties has executed a
sale deed dated 29.04.1919, wherein, she has specifically recorded that Syed
Ahmed Sakkaf who is the grandfather of the 5th respondent in the application is a
predeceased sister’s son and she has given 1440 shares to the said Syed Ahmed
Sakaaf and 675 shares to Syed Samad Sakaaf who is the son of Syed Ahmed
Sakaaf. Thereafter, in the registered will dated 05.06.1919/Ex.R35 executed by
Ikkramunnisa Begum, she has recorded that Syed Ahmed Sakkaf is the son of her
pre-deceased sister’s. That apart, Ex.R23 to Ex.R32/affidavits filed by the
forefathers have admitted that grand father of the fifth respondent Mr.Syed Ahmed
Sakaaf is the defendant of St.Dada Shah. In Ex.R21/affidavit of Ikramunnisa
Begum, she has asserted that Syed Ahmed Sakkaf is her pre-deceased sister’s
son/Hydari Begum. Similarly, Syed Ahmed Sakkaf in his affidavit, which is
marked as Ex.22 admitted that Ikkramunnisa Begum is his maternal aunt.
25. It is relevant to note that statements or declarations made ante litem
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motam is admissible and relevant to be noted under Section 32(5) & (6) of the
Indian Evidence Act, 1872 and Section 26 of Bharatiya Sakshya Adhiniyam, 2023.
The above referred statements were made even before the existence of actual
controversy, concerning the subject matter of disputes. The statements have been
made by the blood relations of the family. Therefore, these are relevant to establish
the relationship of the parties. Even in the proforma report dated
09.03.1956/Ex.R1, the name of Syed Ahmed Sakkaf is found in Serial No.33.
Similarly, in the bye-law and list of beneficiary, name of the fifth respondent in
original application is found in Serial No.37. The said bye-law and the list of
beneficiary appended to the bye-law have not been challenged all these years.
25. Therefore, the findings of the Tribunal with regard to the Exs.P4 and
Ex.R35 that since Ikkramoonisha Begum had mentioned Hydari Begum only as
her sister and not a blood sister, thus, she is not a blood sister is totally against the
well settled position. When the statements of the blood relatives have clearly
admitted the relationship, now the Tribunal’s finding that Hydari Begum is not a
blood sister, is without any evidence in this regard.
26. Considering the statements made by the parties even before the issue of
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controversy in various proceedings, i.e., LC.No.29 of 1916, sale deed of the year
1919, Exs.P4, R35, R21, R22, R23 to R32, this Court is of the definite opinion
that the statements are admissible and relevant under Section 32(5) and (6) of the
Indian Evidence Act, 1872 and 26 (f) and (g) of Bharatiya Sakshya Adhiniyam,
2023 which has not been taken note by the Tribunal. Therefore, the Tribunal’s
findings that the 5th respondent is not a descendant cannot be valid in the eye of
law. In fact, the parties themselves have pleaded that the judgment in O.S.No.75 of
1909 has not been acted upon and therefore, the bye-laws were framed by the
Tamil Nadu Wakf Board on 15.07.2010, wherein, beneficiaries have been clearly
set out, which has been acted upon and three elections have been already
conducted. In the proforma report, names have been shown as beneficiary,
however, now, without any evidence and relying upon Ex.P2, which is not
emanated from O.S.No.75 of 1909 and has been obtained from some other
proceedings and giving much reliance to the said Ex.P2/Genealogical tree, in view
of this Court is not valid in the eye of law.
27. Accordingly, the findings recorded by the Tribunal in O.A.No.79 of
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2022 is set aside. In respect of O.A.No.31 of 2022 with regard to the elections, as
the period of election is about to expire, the parties have already adopted the
scheme of bye-law which is gazetted and this Court is of the firm view that the
future elections shall be in terms of the bye-laws/scheme framed already by the
Tamil Nadu Wakf Board dated 15.07.2010. The question of deciding the
descendants will not arise at all. The very conduct of the parties in all these years
and treating them as the descendants and accepted their status as descendants,
now, it is too late to re-open the same after many decades. Since the period of
office bearers expires in February 2025, the election shall be conducted strictly in
accordance with the bye-law/scheme framed by the Tamil Nadu Wakf Board dated
15.07.2010.
28. From the various litigations, one by one, either before this Court or the
Waqf Tribunal indicate that the parties are litigating the issue only in order to
vindicate their personal rights and to avail the maximum benefit from the
properties. Thus, this Court is of the view that the election has to be conducted
only as per the bye-law. The issue of descendants cannot be re-opened after a
several decades. Accordingly, the directions of the Tribunal to amend the bye-law
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and findings with regard to the issue of descendant in respect of the fifth
respondent in the original applications alone are set aside.
29. Accordingly, these revision stands disposed of. No costs. Consequently,
connected miscellaneous petitions are closed.
08.01.2025
Index : Yes / No
Speaking/non speaking order
Neutral Citation : Yes/No
dhk
To,
1.The Chief Executive Officer,
The Tamil Nadu Waqf Board
No.1, Jaffer Syrang Street, Vallal Seethakathi Nagar,
Chennai – 600 001
2. The Chairman
Tamil Nadu Waqf Board,
No.1 Jaffer Syrang Street, Vallal Seethakathi Nagar,
Chennai – 600 001
N. SATHISH KUMAR, J.
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dhk
3. The Election Officer / Superintendent of Waqfs,
Chennai Zone, No. 139, Dr.Besant Road,
Ice House, Triplicane, Chennai 600 005
CRP. Nos.2073, 2074, 2080 & 2293 of 2024
08.01.2025
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