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Judgment
Ramanujam, J.—Both the Writ Petitions have been filed by the same petitioners. In the first one, the petitioners seek to quash an order of
the Tamil Nadu Wakf Board dated 8th March 1975 in I.A. No. 6 of 1972 in W.A. No. 10 of 1972. In the other, the petitioners have prayed for a
writ of prohibition prohibiting the Wakf Board from proceeding further with W.A. No. 10 of 1972. Since both the petitions relate to the
proceedings in W.A. No. 10 of 1972 pending before the Wakf Board and are bared on the same facts, they are dealt with together. Respondents
2 to 6 in both the writ petitions had filed the application in W.A. No. 10 of 1972 before the Tamil Nadu Wakf Board, the first respondent in both
the writ petitions, purporting to be under Ss. 15, 43 and 44 of the Wakf Act to remove the petitioner from management of the properties
mentioned in the application, and to settle a scheme for the proper administration of the Wakf known as ""Madrasa-dul-Mahmudis, Aravakurichi"",
and for certain other reliefs. The petitioners who claimed to be the descendants of the Wakif in management of the Wakf ever since the death of
the wakif, raised a contention that respondents 2 to 5 are not entitled to maintain an application under S. 44 of the Wakf Act and that, therefore,
the application filed by respondents 2 to 5 which is mainly under S.44 cannot be maintained.
The said point was considered by the Wakf Board as a preliminary issue and was rejected by its order dated, 8th March 1975, with the
following observation :
Preliminary objection on ""person interested"" over-ruled and the main petition to be taken on 26th April 1975.
The petitioners seek to challenge the validity of the said order in the first writ petition and they also seek a Writ of Prohibition prohibiting the Wakf
Board from proceeding further with the enquiry in W.A. No. 10 of 1972 cannot legally be maintained by respondents 2 to 3. If the petitioners''
contention that respondents 2 to 5 cannot maintain the petitions accepted, then the petitioners will succeed in both the writ petitions. Therefore, the
main question is whether the application In W.A. 10 of 1972 filed by respondents 2 to 5 before the Wakf Board is maintainable.
The undisputed facts of this case are that the petitioners'' ancestor, one Kadar Mohideen Rowther, created a Wakf in the year 1908 dedicating
about 100 acres of lands and some shop buildings situate in the village of Aravakurichi for running a school for religious instruction established by
him in the same village, for providing books to poor students of the said school, for providing funeral expenses of the poor, for meeting the
expenses of Haj Pilgrims, for giving aims to the poor fakirs during Ramzan and for Providing the marriage expenses of poor girls etc., that those
Wakf properties are in management of the petitioners herein and the 6th respondent. There is of course controversy between the parties as to
whether the objects of the wakf are being carried out by the petitioners or not. Respondents 1 to 5 filed the above application before the Wakf
Board complaining that the petitioners are not performing any of the objects set out in the Wakf deed, that they are misappropriating the funds and
income of the Wakf, that therefore should be removed from the management of the properties and a scheme for the proper management of the
Wakf should be settled, and that the petitioners should be called upon to account for the income and expenditure of the Wakf at least for 12 years
preceding the date of the application and to deposit the amount found due from them to the account of the Wakf. The said application has been
filed under Ss. 15, 43 and 44 of the Wakf Act. In their application respondents 2 to 5 had claimed that the muslim public and in particular the
muslims of the village are the beneficiaries under the Wakf, that one of them is the president of the Jumma Mosque of the same village and another
is the Member of the managing committee of that mosque and that therefore, they are entitled to complain about the non-performance of the
charities.
The petitioners, however, resisted the said application contending Inter alia, that respondents 2 to 5 herein have no locus standi to file an
application before the Wakf Board under S.44 and that, therefore, the application filed by them was not maintainable in taw. According to the
petitioners, respondents 2 to 5 who filed the application in W.A. 10 of 1972 before the Wakf Board are not persons interested in the Wakf as
defined in S.3 (h) of the Muslim Wakf Act, 1954. This objection taken by the petitioners as to the maintainability of the application had been
rejected by the Wakf Board.
The petitioners contend that the order passed by the Wakf Board is vitiated in that it is not a speaking order and that in any event in view of
S.44 read with the definition of ""persons interested in the Wakf"" contained in S.3 (h), the said application, W.A. 10 of 1972 should have been
rejected as not maintainable. Thus, the controversy between the parties is as to the scope of S.44 read with the definition of ""persons interested in
the Wakf"" contained in S.3 (h) of the Act.
S.44 is as follows:
Application for enquiry--Any person interested in a Wakf may make an application to the Board supported by an affidavit to Institute an enquiry
relating to the administration of the Wakf and if the Board is satisfied that there are reasonable grounds for believing that the affairs of the Wakf are
being mismanaged it shall take such action thereon as it thinks fit.
The words ""any person interested in a Wakf"" occurring in the above section have been defined in S.3 (h) as follows :
person interested in a Wakf"" means say person who is entitled to receive any pecuniary or other benefits from the Wakf and includes:
(i) any person who has a right to worship or to perform any religious rite in a mosque, Idgah imambaro, dargah, khangab, mambara, graveyard or
any other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf.
(ii) the wakif and any descendant of the wakif and the mutawalli......
The said definition takes in all persons who are entitled to receive any pecuniary or other benefits from the Wakf and all persons who have a right
to worship or to perform any religious rite in a mosque etc., or any other religious institution connected with the Wakf or to participate in any
religious or charitable institution under the Wakf. Though an attempt was made by the learned counsel for the Wakf Board and respondents 2 to 5
to bring respondents 2 to 5 in the inclusive portion of the definition, that attempt was later given up when it was found that the inclusive portion of
the definition refers only to persons who have a right to worship or to perform any religious rite, or to participle in any religious institution under the
Wakf Deed. No religion institution in which any one can claim a right to worship or to perform any religious rite or to participate had been created
under the Wakf Deed. Therefore, the learned counsel for respondents 1 to 5 mainly contended that respondents 2 to 5 will come under the
definition of persons interested as persons entitled to receive benefits from the wakf. As already stated, the case of respondents 2 to 5 before the
Wakf Board was that they are the residents of the village wherein the Madras has been established by the founder and the other charitable objects
are to be performed as per the directions of the founder. They have also claimed to be in management of another muslim institution, namely Jumma
mosque in the same village. However after the matter came to this court, respondents 2 to 3 have stated in their counter affidavit that they filed the
application in a representative capacity on behalf of the muslim residents of the village who are persons interested in the wakf, that in any event the
Wakf deed itself gives the Muslim residents of the village a right to move the court in case the descendants of the wakif either fail to perform the
objects mentioned in the Wakf Deed or misuse or misappropriate the income from the wakf or the wakf is not properly administered and that,
therefore, all the muslim residents in the village should be taken to be persons interested in the Wakf.
S.92 of the C.P.C., which is an analogous provision uses the words ""persons interested in the trust"" as in S.44 of the Wakf Act. S.92 of the
C.P.C., 1908 was first enacted as S.539 of the Code of 1877. S.539 was modelled as regards the right of suit on the provisions of Sir Samuel
Romilly''s Act. Before that Act, the Attorney-General representing the Crown as Parens Patrise was alone entitled to proceed by way of
information, ordinarily in the court of Chancery, for the enforcement of charitable trust and this he usually did only on the relation of private persons
who gave security for the costs. When however, the Romilly''s Act authorised any two or more persons to proceed by petition under that Act with
the authority of the Attorney General, it was ruled by Lord Eldon in re: Bedford Charities (1819) 2 Swans 470, one of the earliest case, that no
person could petition who had not ""a direct interest"" in the Charity. In Luele (Corporation of) v. Greenhouse (1927) 1 Eligh. N.S. 17-91 Lord
Eldon again observed that the court was bound to take care ""that the petitioners have a clear interest in the subject."" In Jan Ali v. Ramanath
Mundal ILR 8 Cal. 32 certain Mohomedans residing in a village who were in the habit of attending prayers at the mosque there were held to have
no direct interest in the endowment of the Mosque within the meaning of S.539 of the Code of 8877 which used the words ""direct interest in the
Trust"". As the effect of the said decision was to make the section to a large extent a dead letter as regards temples and mosques, the legislature
thought fit to indicate the necessity for a more liberal construction by deleting the word ""direct"" from S.539 in 1887.
The scope of S.92 came up for consideration before the Full Bench in Ramachandara Iyer v. Parameswaram Munbu 36 M.L.J. 393; 9 L.W.
492 and the question before the Full Bench was whether a suit instituted under S.92 of the C.P.C., with respect to a temple in North Malabar is
maintainable by a member of Dharma Raksha Sabha located at Madras, whose object is to institute suits for the protection and due application of
the Hindu Religious Endowments. When the same matter was before a Division Bench earlier, Wallis, C.J., expressed the view that though Hindu
temples can prima facie be taken as having been dedicated for the use of all Hindus resorting to them, a mere right to worship in the temple (sic)
the taken as indicating his interest in the trust and that any other conclusion would defeat the object with which the Legislature inserted the words in
S.92, the object being to prevent people interfering by virtue of the Section in the administration of the charitable trusts merely in the interest of
others and without any real interest of their own. Kumaraswami Sastri, J. was, however, of the view that the right to worship in a particular temple
is a sufficient interest in the temple to entitle a person to join in a suit under S.92. On a Letters Patent Appeal, the matter came before a Full Bench
consisting of Abdur Rahim, Oldfield and Coutts Trotter, JJ. Oldfield and Courts Trotter, JJ. in their majority judgment held that the interest
contemplated by S.92 of the C.P.C., is a present and substantial interest and not a remote and fictitious or purely illusory interest, and that a Hindu
having a mere right to worship at a temple is not by reason of that alone, without more, competent to institute a suit for a scheme under S.92.
Abdur Rahim, J. in his minority judgment, however, held that in the case of a Hindu temple or a Mohamedan Mosque persons resorting to them for
the purpose of worship are presumably beneficiaries intended by the founder and that such persons have an interest in the institution so as to enable
them to invoke S.92. In Md. Khan Sahib v. Kadir Batcha AIR 1926 Mad. 466, Odgera and Madhavan Nair, JJ. held that in order to entitle a
plaintiff to sue under S.92 he must have a clear interest in the particular trust over and above that which the general public has, that the words
interest in trust"" must mean a present and substantial interest arising from some special relation in which the plaintiff stands to the trust in question
as compared with the body of the religious community, and that though proof of residence in the neighbourhood of the institution may be relevant
on the ground that those who live near to the institution will be most likely to be benefited by the institution, that is not conclusive. The Judicial
Committee in Vydianatha Ayyar v. Swaminatha Ayyar ILR 47 Mad. 384; 20 L.W. 903 (P.C.), however, felt that Muhammadans who worship
regularly in a mosque is a village had a direst interest in the trust relating to the mosque though bare possibility may not clothe them with an interest
in the trust.
In Mahant Harnam Singh, Chela of Bhai Narain Singh Vs. Gurdial Singh and Another, the Supreme Court had to consider whether the plaintiffs
belonging the Sikh religion but residing in the same village can file a suit under S. 92 of the C.P.C., in relation to a non-sikh institution running a free
kitchen and serving free food to visitors. It had been urged on behalf of the plaintiffs that as residents of the village where the food is served free,
they have got an interest in the institution so as to enable them to file a suit under S.92. Dealing with that contention the Supreme Court held, after
referring to the judgment of the Full Bench in Ramachandra Aiyar v. Parameswra Unni ILR 42 Mad. 360 and the decision of the Privy Council in
Vydianatha Aiyar v. Swaminatha Ayyar ILR 47 Mad. 884; 20 L.W. 803 (P.C.), that the plaintiffs as residents of the village had no such interest as
could entitle them to institute the suit. In a recent decision of this court in C. Kalahasti v. V.R. Sukhantharoj (sic) L.W. 577, the learned Chief
Justice speaking for the Bench expressed the view that persons figuring as plaintiffs in a suit filed under S.92 must have an interest, special or
peculiar as distinct from the generality of the interest which the public may have in the trust and that to hold that any member of the public having an
indirect connection or relationship with the institution is a person having interest in the trust would dilute the requirements of S. 92. In the light of
these decisions it has to be found whether respondents 2 to 5 herein are persons interested as defined in S. 3(b) of the Act.
If there had been no definition of ''a person interested in the Wakf'' as in S. 3(h), it would be possible to hold that respondents 2 to 3 have a real
and distinct interest in the Wakf so as to entitle them to invoke S. 44 of the Wakf Act. But the said definition section appears to be restrictive in
nature and unless a person comes under the definition, he is not entitled to invoke S. 44. As already stated, respondents 2 to 5 claim they are
entitled to certain benefits from the Wakf, though those benefits are not pecuniary. The words ""person who is entitled to receive any pecuniary or
other benefits"" used in S. 3(h) can in my opinion only refer to the persons who have been given pecuniary or other benefits under the Wakf deed
which they could claim as of rights. Respondents 2 to 3 claim to be entitled to the benefits from the Wakf merely because they are residents of the
village where the Madrasa has been established. The fact that the residents can send their children to the Madrasa if a Madrasa is being run in
pursuance of the Wakf deed will not entitle them to claim that facility as of right undo the Wakf deed. The further fact that the may have derived
some benefit if the Wakf properties are properly maintained and the charitable objects mentioned in the Wakf deed had been properly carried out,
will not mean that they are entitled to those benefits under the Wakf deed as of right. The fact that some of she respondents are connected with the
management of another Mosque in the same village will not also enable them to claim interest in the Wakf properties as they had nothing to do with
the said mosque. The further fact that the muslim residents of the village have been given a right to approach the court in case of misappropriation
or maladministration of the Wakf properties under the terms of the Wakf deed will not also make them beneficiaries under the Wakf deed. The
right to move the court given under the Wakf deed to a resident of the village cannot be termed as a benefit flowing from the Wakf deed. In my
view, therefore, respondents 2 to 5 cannot file an application under S. 44 as persons interested in the Wakf. This, however, will not mean that the
Wakf Board cannot initiate suo motu proceedings under S. 45 on the basis of the materials now available before it.
The learned counsel for the Wakf Board and respondents 2 to 3 point out that the application W.A. 10 of 1972 had been filed not only under
S. 44 but also under Ss. 15 and 43. But the reliefs claimed by them under Ss. 15 and 43 are not possible of grant unless it is preceded by an
enquiry under S. 44 which disclose that the affairs of the Wakf are being mismanaged. I have to, therefore, hold that the application filed by
respondents 2 to 5 in W.A. 10 of 1972 cannot be maintained. Both the writ petitions are, therefore, allowed. There will, however, be no order as
to costs. It is, however, made clear that it is open to the Wakf Board to initiate proceedings under S. 44 on the basis of the materials on record for
the proper management of the Wakf properties, and if it is found that the affairs of the Wakf are being mismanaged by the petitioners herein, it can
take such action as it thinks fit including the action contemplated under Ss. 13 and 43 of the Act.