IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 WP(C).No. 28012 of 2009(O) -------------------------- OS.63/1989 of MUNI-MAGI.COURT,PATTAMBI .................... PETITIONER: --------------- ATTABEEVI, AGED 43 YEARS, D/O.DECEASED SAYID HASSAN, KUNHIKKOYATHANGAL, ODAMPULLY, PONMANICHINATAKATHU, ITTONAM DESOM, PERINAKANNUR AMSOM, OTTAPALAM TALUK. BY ADV. SRI.C.A.MAJEED SRI.K.H.ASIF RESPONDENTS: --------------- 1. MAMMAYYA BEEVI(DIED), AGED 65 YEARS,W/O. DECEASED SAYID HASSAN, PONMANICHINATAKATHU, ITTONAM DESOM, PERINAKANNUR AMSOM, OTTAPALAM TALUK PIN-679 535. 2. CHERIYABEEVI, BEEKUNIBEEVI(DIED) 3. HYDROSEKOYATHANGAL, AGED 38 YEARS, ODAMPULLY, PONMANICHINATAKATHU, ITTONAM DESOM, PERINAKANNUR AMSOM, OTTAPALAM TALUK, PIN-679535. 4. KUNHIKOYA THANGAL, AGED 34 YEARS, PERINAKANNUR AMSOM, ITTONAM DESOM, OTTAPALAM TALUK, PIN-679 535. 5. KUNHIKOYATHANGAL (DIED) AGED 56 YEARS S/O.IMPICHIKOYA THANGAL, ODAMPULLY, PONMANICHINATAKATHU, ITTONAM DESOM, PERINAKANNUR AMSOM, OTTAPALAM TALUK-679535. * 6. IMBICHIBEEVI, AGED ABOUT 63,(2ND WIFE) W/O.DECEASED SAYID HASSAN ITTONAM DESOM, PERINAKANNUR AMSOM, OTTAPALAM-679535. 7. KUNHISEETHIKOYA THANGAL, ABOUT 32, S/O.SAYID HASSAN, PERINAKANNUR AMSOM, ITTONAM DESOM OTTAPALAM TALUK-679535. WPC 28012/09 -2- * 8. ATTABEEVI, AGED 37 YEARS D/O.SAYID HASSAN, PERINAKANNUR AMSOM, ITTONAM DESOM OTTAPALAM TALUK-679535. 9. SHEREEFA BEEVI, AGED 67 YEARS W/O. DECEASED DEFENDANT'S IST WIFE)NANABRAMAMSAM, KANNATHALI MOOCHIKKAL DESOM, THEYYALA PO,673580 * 10. MUTHU BEEVI, AGED 44 YEARS D/O.DECEASED SAYID HASSAN NANNABRAMAMSAM, KANNATHALI MOOCHIKKAL DESOM, THEYYALA PO,673580 * 11. POOKOYA THANGAL, AGED 41 YEARSS, S/O.DECEASED SAYID HASSAN NANNABRAMAMSAM, KANNATHALI MOOCHIKKAL DESOM, THEYYALA PO,673580 * 12. BEEVI KUNHIBEEVI, AGED 39 YEARS, S/O.DECEASED SAYID HASSAN NANNABRAMAMSAM, KANNATHALI MOOCHIKKAL DESOM, THEYYALA PO, PIN-673580. * 13. IMBICHIKOYA THANGAL AGED 36, S/O.DECEASED SAYID HASSAN NANNABRAMAMSAM, KANNATHALI MOOCHIKKAL DESOM, THEYYALA PO,673580. *14. NOORBEEVI, AGED 33 YEARS, S/O.DECEASED SAYID HASSAN NANNABRAMAMSAM, KANNATHALI MOOCHIKKAL DESOM, THEYYALA PO,673580. * 15. KUNHIBEEVI, AGED 31 YEARS, S/O.DECEASED SAYID HASSAN NANNABRAMAMSAM, KANNATHALI MOOCHIKKAL DESOM, THEYYALA PO,673580. * 16. SAINAL ABDI THANGAL, AGED 38, S/O.DECEASED SAYID HASSAN NANNABRAMAMSAM, KANNATHALI MOOCHIKKAL DESOM, THEYYALA PO,673580. *17. SUHARA BEEVI, AGED 26 YEARS S/O.DECEASED SAYID HASSAN NANNABRAMAMSAM, KANNATHALI MOOCHIKKAL DESOM, THEYYALA PO, 673580. 18. KUNHIPATHUMA, AGED 63 YEARS, W/O.DECEASED DEFENDANT'S (3RD WIFE) D/O.CHELI, PANANGATTUR PO, TIRUR TALUK, 676 302. 19. IMBICHIBEEVI, AGED 43 YEARS,W/O DECEASED ABDULLAKOYA THANGAL, NANNABRAM AMSOM, VELLIYAMPURAM DESOM, TIRUR TALUK. 676302. 20. ABDUL KAREEM, AGED 26 YEARS, S/O. DECEASED ABDULLAKOYA THANGAL, NANNABRAM AMSOM, VELLIYAMPURAM DESOM, TIRUR TALUK, 676302. 21. MUHAMMED RIYAS, AGED 25 YEARS DECEASED ABDULLAKOYA THANGAL, NANNABRAM AMSOM, VELLIYAMPURAM DESOM, TIRUR TALUK, 676302. WPC 28012/09 -3- 22. MUHAMMED IRSHAD, AGED 23, S/O. DECEASED ABDULLAKOYA THANGAL, NANNABRAM AMSOM, VELLIYAMPURAM DESOM, TIRUR TALUK, 676302. 23. SHABNA, AGED 22, D/O. DECEASED ABDULLAKOYA THANGAL, NANNABRAM AMSOM VELLIYAMPURAM DESOM, TIRUR TALUK, 676302. 24. NOORBEEVI, AGED 65, D/O. DECEASED ABDULLAKOYA THANGAL, EDARIKKOD PO, KOTTAKKAL 676 501 25. SHEREEFA BEEVI, AGED 60, D/O.DECASED ABDULLAKOYA THANGAL VENGARA PO, KODUVAYUR, MALAPPURAM DIST. 676 304. 26. BEKUNHIBEEVI, AED 50, D/O.DECASED SHEREEFA BEEVI, NIKKANKULI VEEDU, PO, MANIMOOLI, VIA, EDAKKARA, NILAMBUR-679 331. 27. C.M.HASHIMKOYATHANGAL, AGED 48, MAKKUZHIYIL VEEDU, KODUVALLI AMSOM DESOM, KODUVALLI,691590. 28. IMBICHIKOYA THANGAL, AGED 46, MAKKUZHIYIL VEEDU, KODUVALLI AMSOM DESOM, KODUVALLI, 691590. 29. BEEKUTTYUMMA BEEVI, AGED 44 YEARS, PULIKKALATHU VEEDU,KADALUNDI NAGARAM, MALAPPURAM DIST,.673 314. 30. KUNHIKOYA THANGAL, AGED 42, BITHUL HUDA HOUSE, PALAKKUTTY PO, PALAKUTTY, MALAPPURAM DIST., 673314. 31. K.P.SAIDU HAMEED, THANGAL, AGED 46 YEARS CHIRAMANGALAM PO, NADUVA, PARAPPANANGADI-676 309. 32. K.P.KUNHIKOYA THANGAL, AGED 40 YEARS, KANTHIRUTHI PO, KODINHI VIA, THIRURANGADI, 676309. 33. K.P.KUNHIMOL BEEVI, AGED 42 YEARS KANTHIRUTHI PO, KODINHI VIA, THIRURANGADI, 676 309. 34. K.P.KUNHUTTY BEEVI, AGED 42 YEARS, KANTHIRUTHI PO, KODINHI VIA, THIRURANGADI, 676309. 35. BEEVI KUNHIBEEVI, AGED 65 YEARS, W/O.POOKKOYA THANGAL, KANNANTHALI NALINAKKATHU VEEDU, THNALOOR PO, TIRUR TALUK- 680 581. 36. MULLAKOYA THANGAL, AGED 40 YEARS, KANNANTHALI NALINAKKATHU VEEDU, THANALOOR PO TIRUR TALUK. 680581. ¦¦ WPC 28012/09 -4- 37. KOYANNIKOYA THANGAL, AGED 37 YEARS, KANNANTHALI NALINAKKATHU VEEDU, THNALOOR PO, TIRUR TALUK- 680 581 38. SAIDUMOHAMMED KOYA THANGAL AGED 33 YEARS KANNANTHALI NALINAKKATHU VEEDU, THNALOOR PO, TIRUR TALUK- 680 581 39. SHEREEFA NABEESA MUTHU BEEVI, AGED 56 YEARS,. W/O.KUNHIKOYA THANGAL, RESIDING AT ARAFA HOUSE, KARUVANTHURUTHY ADAVU, PO, CHALIYAM, KADALUNDI TALUK, 680581. 40. K.N.KATHEEJA BEEVI, AGED 38 YEARS, RESIDING AT AT ARAFA HOUSE, KARUVANTHURUTHY ADAVU, PO, CHALIYAM, KADALUNDI TALUK. 680581. 41. K.N.AMINA MIMOONA BEEVI, AGED 34 YEARS, RESIDING AT AT ARAFA HOUSE, KARUVANTHURUTHY ADAVU, CHALIYAM, KADALUNDI TALUK,680581. 42. K.N.FATHIMA SUHARA BEEVI, AGED 32 YRS RESIDING AT ARAFA HOUSE, KARUVANTHURUTHY ADAVU, CHALIYAM, KADALUNDI TALUK, 680581. 43. K.N.ATTAKOYA THANGAL, AGED 30 YRS, RESIDING AT ARAFA HOUSE, KARUVANTHURUTHY ADAVU, CHALIYAM, KADALUNDI TALUK, 680581. 44. K.N.ATTAKOYA THANGAL, AGED 30 YEARS RESIDING AT ARAFA HOUSE, KARUVANTHURUTHY ADAVU, CHALIYAM, KADALUNDI, 680581. 45. K.N.HAJIRA BEEVI, AGED 25 YEARS, RESIDING AT ARAFA HOUSE, KARUVANTHURUTHY ADAVU CHALIYAM, KADALUNDI TALUK-680581. 46. K.N.ISMAYIL THANGAL, AGED 23, RESIDING AT ARAFA HOUSE, KARUVANTHURUTHY ADAVU CHALIYAM, KADALUNDI TALUK-680581. 47. MARIYAM BEEVI, AGED 58 YEARS,W/O.2ND WIFE OF DECASED KUNHIKOYA THANGAL RESIDING AT KANNANTHALI NALINTAKATHU DESOM, TIRUR TALUK680581. 48. K.N.MUTHUKOYA THANGAL, AED 36 YEARS, S/O.KUNHIKOYA THANGAL, RESIDING AT KANNANTHALI NALINTAKATHU DESOM, TIRUR TALUK-680581. 49. K.N.POOKKUNHIKOYA THANGAL, AGED 34 YEARS S/O..KUNHIKOYA THANGAL, RESIDING AT KANNANTHALI NALINTAKATHU DESOM, TIRUR TALUK-680581. WPC 28012/09 -5- 50. K.N.FASALURAHIMAN THANGAL,AGED 18 S/O. S/O..KUNHIKOYA THANGAL, RESIDING AT KANNANTHALI NALINTAKATHU DESOM, TIRUR TALUK-680581. 51. SAFIYA BEEVI, AGED 32 D/O. .KUNHIKOYA THANGAL RESIDING AT KANNANTHALI NALINTAKATHU DESOM, TIRUR TALUK-680581. 52. MUTHU BEEVI, AGED 30 YEARS, D/O. .KUNHIKOYA THANGAL RESIDING AT KANNANTHALI NALINTAKATHU DESOM, TIRUR TALUK-680581. 53. SOUDABEEVI, AGED 26 YEARS,D/O. .KUNHIKOYA THANGAL RESIDING AT KANNANTHALI NALINTAKATHU DESOM, TIRUR TALUK-680581. 54. AREEFA BEEVI,AGED 19 YEARS,D/O. KUNHIKOYA THANGAL RESIDING AT KANNANTHALI NALINTAKATHU DESOM TIRUR TALUK-680581. 55. SAIDU IBRAHIM IMBICHIKOYA THANGAL(DIED) AGED 70 YEARS S/O.DECASED MUTHU BEEVI, RESIDING AT KANNANTHALI NALINTAKATHU DESOM TIRUR TALUK-680581. 56. MUTHUBEEVI, AGED 56 YEARS, S/O.DECASED SEETHIKOYA THANGAL, RESIDING AT KANNANTHALI NALINTAKATHU DESOM TIRUR TALUK-680581. 57. K.N.SHAREEFA BEEVI, AGED 39 YEARS, P.M.HOUSE, PEEDIKAPADI PO, EDAYOOR NORTH (VIA) VALANCHERY,676552. 58. K.N.MULLA BEEVI, AGED 34 YEARS, KANNANTHALI, NALINATAKATHU HOUSE, KELAPPURAM, THANALOOR(VIA) TIRUR TALUK-680581. 59. K.N.MUTHUKOYA THANGAL, AGED 32 YEARS, KANNANTHALI, NALINATAKATHU HOUSE, KELAPPURAM, THANALOOR(VIA) TIRUR TALUK-680581. 60. K.N.SUHARA BEEVI, AGED 28 YEARS, KANNANTHALI, NALINATAKATHU HOUSE, KELAPPURAM, THANALOOR(VIA) TIRUR TALUK-680581. 61. K.N.SAFEERA BEEVI, AGED 20 YEARS, KANNANTHALI, NALINATAKATHU HOUSE, KELAPPURAM, THANALOOR(VIA) TIRUR TALUK-680581. WPC 28012/09 -6- 62. ATTA BEEVI, AGED 60 YEARS,D/O. DECASED KUNHUBEEVI, ABHINAYIL HOUSE, EZHUMANGAD PO ARANGOTTUKARA, OTAPALAM TALUK-679535. 63. SAYYID HAMEED, CHERUKUNHIKOYA THANGAL, AGED 54 YEARS, S/O. DECASED MUTHU BEEVI, KANNANTHALI, NALINATAKATHU HOUSE, KELAPPURAM, THANALOOR(VIA) TIRUR TALUK-680581. 64. ATTAKOYA THANGAL, AGED 46 YEARS, S/O.DECEASED, MUTHU BEEVI, KANNANTHALI, NALINATAKATHU HOUSE, KELAPPURAM, THANALOOR(VIA) TIRUR TALUK-680581. 65. POOKKUNHIKOYA THANGAL,AGED 40 YEARS, S/O.DECEASED, MUTHU BEEVI, KANNANTHALI, NALINATAKATHU HOUSE, KELAPPURA THANALOOR(VIA) TIRUR TALUK-680581. 66. CHERUKOYA THANGAL, AGED 31 YEARS S/O.DECEASED, MUTHU BEEVI, KANNANTHALI, NALINATAKATHU HOUSE, KELAPPURAM THANALOOR(VIA) TIRUR TALUK-680581. 67. HUSSAIN KOYA THANGAL, AGED 29 YEARS, S/O.DECEASED, MUTHU BEEVI, KANNANTHALI, NALINATAKATHU HOUSE, KELAPPURAM THANALOOR(VIA) TIRUR TALUK-680581. 68. SHIHABUDEEN THANGAL, AGED 23, YEARS S/O.DECEASED, MUTHU BEEVI, KANNANTHALI, NALINATAKATHU HOUSE, KELAPPURAM THANALOOR(VIA) TIRUR TALUK-680581. 69. BEEKUNHI BEEVI, AGED 44 YEARS, S/O.DECEASED, MUTHU BEEVI KANNANTHALI, NALINATAKATHU HOUSE, KELAPPURAM THANALOOR(VIA) TIRUR TALUK-680581. 70. AYISHA BEEVI, AGED 33 YEARS S/O.DECEASED, MUTHU BEEVI KANNANTHALI, NALINATAKATHU HOUSE, KELAPPURA THANALOOR(VIA) TIRUR TALUK-680581. 71. HAJIRA BEEVI, AGED 27 YEARS, S/O.DECEASED, MUTHU BEEVI KANNANTHALI, NALINATAKATHU HOUSE, KELAPPURAM THANALOOR(VIA) TIRUR TALUK-680581. 72. SOUDA BEEVI, AGED 24, S/O. S/O.DECEASED, MUTHU BEEVI KANNANTHALI, NALINATAKATHU HOUSE, KELAPPURA THANALOOR(VIA) TIRUR TALU-680581. WPC 28012/09 -7- ADV. SRI.SANTHEEP ANKARATH FOR R7 SMT.P.JAYALAKSHMI FOR R7 SRI.S.ABDUL SALAM FOR R27,28,43,56,58 SRI.S.ABDUL SALAM FOR R59,60 & 61 *NAME OF THE HUSBAND OF R6, FATHER OF R8 & R10 TO R17 SHOWN IN THE CAUSE TITLE STANDS CORRECTED AS “KUNHIKOYA THANGAL” INSTEAD OF “SAYID HASSAN” AS PER THE ORDER DT. 17.11.2009 IN I.A.NO.12923/09 IN THE WRIT PETITION. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2009, THE COURT ON 04/12/2009 DELIVERED THE FOLLOWING: APPENDIX(WPC 28012/09) PETITIONER'S EXTS.: EXT.P1: A PHOTOCOPY OF THE STATEMENT DATED 22.6.09. EXT.P2: A PHOTOCOPY OF THE ORDER OF THE LOWER COURT DT. 15.7.2009. EXT.P3: A PHOTOCOPY OF THE PLAINT IN O.S.NO.63/89 FILED BEFORE THE MUNSIFF COURT. EXT.P4: A PHOTO COPY OF THE WRITTEN STATEMENT FILED BY THE CONTESTING DEFENDANT BEFORE THE MUNSIFF COURT, PATTAMBI IN O.S.63/89. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 28012 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 4th December, 2009 JUDGMENT The Writ Petition is filed seeking mainly the following reliefs: 1. To issue a direction calling for the records leading to Ext.P1 to P4 and quash Exts.P2 finding that it is issued illegally. 2. To declare that direction to issue of notice to the Wakf Board as provided under Section 90 of the Wakf Act is unnecessary at this stage. 2. Petitioner is the additional third plaintiff in O.S.No.63 of 1989 on the file of the Munsiff-Magistrate Court, Pattambi, and the respondents are the coplaintiffs and defendants. Suit is one for partition. When the suit came up in the list for trial, one among the defendants filed a statement before the court that the Wakf Board has to be impleaded as a party. The learned Munsiff, after hearing the counsel on both sides, ordered the plaintiff to take steps for impleading the Wakf Board as a party to the suit. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. W.P.C.No.28012/09 - 2 - 3. I heard the counsel on both sides. 4. P1 is the copy of the statement filed by the third defendant on the listed day of the trial as to the need for impleading the Wakf Board as a necessary party in the suit. Other than a bald statement that as per the case of the plaintiff there is a necessity under law for impleadment of the Wakf Board, nothing more is stated in P1 statement. P2 is the copy of the order passed by the court on the basis of P1 statement. P3 is the copy of the plaint. P3 would show that the suit was filed by three persons as plaintiffs against a sole defendant. The first plaintiff and also the sole defendant are no more and their legal heirs have been impleaded as additional parties in the suit. P4 is the copy of the written statement filed by the sole defendant who had passed away. Perusing P3 plaint and also P4 written statement, I find neither the plaintiffs nor the defendant had any case that B schedule property in respect of which alone partition was claimed is a Wakf property. Plaint allegations would disclose that the first plaintiff who is now no more was the 5th wife of one Sayid Hassan @ Kunhikkoyathangal and second and third plaintiffs, the children born out of their wedlock. The first defendant who was the sole defendant at the time of institution of the suit, is stated to be the son of a predeceased son of the aforesaid Kunhikkoyathangal, W.P.C.No.28012/09 - 3 - husband of the first plaintiff and father of second and third plaintiffs. After the death of Kunhikkoyathangal, partition of his properties was entered into by the sharers under a registered deed of the year 1953 and then leaving apart B schedule property comprising a 'Jaram' having an extent of 48 cents the rest of the properties was partitioned among the sharers is the case of the plaintiff. B schedule property of 48 cents comprising the 'Jaram' is stated to be part of 1 Acre 6.98 cents in survey No.221 after excluding 2 Acre 16 cents in survey No.221/1 which had been dedicated as Wakf to a Mosque, as seen from the description of A schedule in the plaint. Relief sought for in the suit is confined to B schedule, and from the allegations raised in the plaint and also contentions raised in the written statement, it is evident the dispute between the parties is over the income received in the 'Jaram' which is a place of worship attracting devotees from different sects and communities. Division of income collected there has given rise to the present suit. There is no contention nor even a whisper in the P4 written statement of the first defendant that B schedule or even the 'Jaram' in B schedule is a Wakf. True, he has contended that under the tenets of the Islamic law and also the custom followed by the family, B schedule is impartiable, but, it has to be noted the definite case in the written statement as seen from W.P.C.No.28012/09 - 4 - paragraph 4 is other than B schedule, the rest of the property had been dedicated as Wakf. When that be the case canvassed in the written statement which is binding on the additional defendants who have been brought in as legal representatives, entertaining of P1 statement filed by the third defendant, that too on the day the case was listed for trial and passing of P2 order directing the plaintiffs to implead the Wakf Board as an additional party in the suit is patently erroneous and unsustainable under law. Culling out one sentence from paragraph 3 of the plaint and also repelling the argument purported to have been canvassed by the plaintiffs' counsel that B schedule is a private Wakf, the court had passed P2 order on the basis of P1 statement. The statement in paragraph 3 of the plaint which has been relied by the court does not even given rise to an inference that B schedule property is a Wakf, which none of the parties had advanced in their pleadings. The argument of the plaintiffs' counsel regarding private Wakf could have been taken only that there is religious place of worship, Jaram in B schedule, which does not fall within the ambit of Wakf, whether or not it is recognised by the tenets of Islamic faith as such. P1 statement of the third defendant, that too filed on the day when the case was listed for trial, evidently was intended to stall the trial of the suit, which demanded W.P.C.No.28012/09 - 5 - outright rejection when no case was pleaded in the written statement of the first defendant that B schedule is a Wakf. P2 order is liable to be set aside and I do so. 5. The court below is directed to give the suit top priority in hearing taking note that it had been instituted nearly two decades ago. The trial of the suit shall be completed expeditiously, at any rate, before the end of February, 2010 giving reasonable opportunity to both sides to lead evidence. Suit being one for partition, whether there is any partiable right as claimed by the plaintiffs over B schedule property alone emerge for consideration for the court at this stage in examining the question whether a preliminary decree has to be passed or not, and so much so, the court has to monitor the trial of the suit to see that unnecessary delay in its disposal is avoided. On disposal of the suit following the directions above, the learned Munsiff is further directed to send a compliance report. Writ Petition is disposed as indicated above. srd S.S. SATHEESACHANDRAN, JUDGE