IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 CRP.No. 782 of 2007(B) --------------------- OS.130/2001 of WAKF TRIBUNAL, KOZHIKODE .................... REVN. PETITIONER(S): PETITIONERS/PLAINTIFFS ------------------------------------------- 1. T.K.NAFEESA, AGED 60 YEARS, D/O. LATE KUNHIMAHINKOYA MUSALIAR, THACHAMKUNNUMMAL HOUSE, MADAVOOR AMSOM AND DESOM, KOZHIKODE TALUK. 2. P.AMINA, AGED 65 YEARS, D/O. LATE KUNHIMAHINKOYA MUSALIYAR, POKKITTERA HOUSE, ELETTIL AMSOM, KIZHAKKOTH DESOM, KOZHIKODE TALUK. 3. C.M.MUHAMMED ABOOBACKER, AGED 24 YEARS, S/O. LATE C.M.ZAINUDDIN MUSALIAR, CHITTADI MEETHAL, MADAVOOR AMSOM AND DESOM, KOZHIKODE TALUK. 4. C.M.KUNHIMAHIN MUSALIAR, AGED 50 YEARS, S/O. C.M.MOHAMMED MUSALIAR, VELUTHEDATH HOUSE, MADAVOOR AMSOM AND DESOM, KOZHIKODE TALUK. (BROTHER'S S/O. C.M.VALIYULLAHI). 5. T.K.ABDUL RASHEED, AGED 45 YEARS, S/O. LATE FATHIMA, PANANCHALIL, MADAVOOR AMSOM AND DESOM, KOZHIKODE TALUK. (DECEASED SISTER'S D/O. LATE C.M.VALIYULLAHI). 6. T.K.HAFSA, AGED 48 YEARS, D/O. LATE FATHIMMA, THATTARIPARAMBATH, PARANNUR AMSOM AND DESOM, KOZHIKODE TALUK. (DECEASED SISTER'S D/O. LATE C.M.VALIYULLAHI). 7. K.K.SUHARA, AGED 35 YEARS, D/O. LATE REHEEMA, KARIYATHAN KAVIL HOUSE, MADAVOOR AMSOM AND DESOM, KOZHIKODE TALUK. (DECEASED SISTER'S D/O. LATE C.M.VALIYULLAHI). CRP.No. 782 of 2007(B) : 2 : 8. P.ZAINABA, AGED 30 YEARS, D/O. LATE REHEEMA, PADINHATHODUKAYIL HOUSE, PARAMBATH KAVU AMSOM AND DESOM, KOZHIKODE TALUK. (DECEASED SISTER'S D/O. LATE C.M.VALIYULLAHI). 9. N.P.SARA, AGED 28 YEARS, D/O. LATE REHEEMA, NELLOLAPPATTIL HOUSE, KIZHAKKOTH AMSOM AND DESOM, KOZHIKODE TALUK. (DECEASED SISTER'S D/O. LATE C.M.VALIYULLAHI). 10. T.K.MEHAMMOOD, AGED 30 YEARS, S/O. NAFEESA, THACHAMKUNNUMMAL HOUSE, MADAVOOR AMSOM AND DESOM, KOZHIKODE TALUK. (SISTER'S S/O. LATE C.M.VALIYULLAHI). 11. C.M.SAINABA, AGED 48 YEARS, W/O. LATE C.M.ZAINUDDIN MUSALIAR, CHITTADI MEETHAL, MADAVOOR AMSOM AND DESOM, KOZHIKODE TALUK. (DECEASED BROTHER'S W/O. LATE C.M.VALIYULLAHI). BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENT(S): DEFENDANTS -------------------------- 1. IHYA-UL-ISLAM SANGHAM, MADAVOOR, PALLITHAZHAM, REPRESENTED BY ITS SECRETARY HAVE ITS OFFICE AT MADAVOOR, PALLITHAZHAM, MADAVOOR DESOM, KOZHIKODE DISTRICT AND TALUK. 2. A.V.ISMAIL, S/O. A.N.VEERANKUTTY, AGED 65 YEARS, SECRETARY AND CHIEF EXECUTIVE OFFICER, KERALA TAKF BOARD, ERNAKULAM. (IMPLEADED AS PER ORDER IN LA NO.1445/2001, DATED 26.03.2001.) ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R1 SRI.K.M.FIROZ FOR R1 SRI.P.A.ABDUL JABBAR, SC, WAKF BOARD FOR R.2 SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD FOR R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON 26/08/2009 PASSED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. NO: 782 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th Day of August, 2009. O R D E R Joseph Francis J. This C.R.P. is filed by the plaintiffs in O.S. No: 130 of 2001 on the file of Wakf Tribunal, Kozhikode. The respondents 1 and 2 are the defendants 1 and 2 in that suit. 2. The facts of the case are briefly as follows: The suit is for declaration that the petitioners are entitled to get 86% of the total income derived from the Jaram Moodal (putting of sacred cloth) by the devotees on the Saints' khabar (tomb)and 35% of other income derived from that tomb as offering of the devotees and for rendition of accounts. The petitioners also seeks permanent prohibitory injunction restraining the respondents from denying the payment to the petitioners by way of 35% of income derived on the C.R.P. NO: 782 OF 2007 :2: said tomb and to restore the position of paying 86% of the income derived on the jaram moodal. 3. The tomb referred to above is of C.M.Muhammed Aboobacker Musaliar known as “C.M. Valiyullahi”. The petitioners are the brothers, sisters and other family members of the said “C.M.Valiyullahi”, who died on 19.4.1991. On the said day the members of the 1st respondent approached the petitioners and requested that dead body of “C.M.Valliyullahi” is to be buried in the mosque Kabristahan. They also agreed that they would give permission to the petitioners to construct a Makam and the petitioners can take income from it. 4. The petitioners have agreed to the said offer and the body was buried. The respondents in tune with the said agreement have taken a decision on 18.09.1991, in the first meeting itself. A dargah committee was formed exclusively for the administration of the said makam under the chairmanship of Musaliar. On the basis of the decision, these petitioners were receiving 35% of the total income from the dargah and entire Jaram Moodal income and the clothes of C.R.P. NO: 782 OF 2007 :3: the Jaram Moodal. Later on due to some financial difficulties the defendants requested these petitioners to allow to take 14% of the Jaram Moodal income for the welfare of the Madrassa. 5. The above practices continued till 15.6.1998. The Secretary of the 1st respondent, who took charge on 15.6.1998 has taken a decision to stop all the payment to the petitioners by using force. It in the said circumstances the suit was filed. 6. Defendants 1 and 2 filed separate written statement and additional written statement denying the claim of the petitioners. 7. In the Wakf Tribunal PW1, PW2, DW1 and DW2 were examined and Exts. A1 to 10, B1 to B3, and X1, X2 and C1 were marked. The Wakf Tribunal on considering the evidence found that there was an understanding to pay certain percentage of income from dargah and income from jaram moodal. But it dismissed the suit on the ground that it is not a legally enforceable right. Against that judgment, the plaintiffs have filed this C.R.P. 9. We heard the learned counsel for the revision petitioners and learned counsel for the respondents. C.R.P. NO: 782 OF 2007 :4: 10. Learned counsel for the revision petitioners submitted that finding of the Tribunal that there is no legally enforceable right to petitioners is incorrect and is not in accordance with law. Learned counsel further submitted that the respondents have accepted the right of the petitioners and therefore they are estopped from denying the same to the petitioners. 11. There is no dispute that late C.M.Muhammed Aboobacker Musaliar (hereinafter referred to as “C.M. Valiyullahi”) was a muslim saint having devotees all over India. He had no wife and children. The plaintiffs are the close relatives of that saint. That saint expired on 19.4.91. The plaintiffs allege that on that day itself, the first defendant mahal had convened a meeting and took some decision regarding the burial of the saint's body. As per the decision recorded in minutes of the first defendant, the body of saint was buried near to the khabar of his father. It was decided to construct a saint's tomb (makam) comprising the kabar of C.M. Valiyullahi and his father. A committee was formed for the makam under the leadership of Sri. E.K. Aboobacker Musaliar. A saint's tomb C.R.P. NO: 782 OF 2007 :5: (makam) is a sacred place wherein devotees make offering in cash and in kind. The khadims are the persons entitled for the income from the tomb. The plaintiffs allege that on 18.9.91 at 8.p.m. a meeting was convened by C.M. Valliyullahi Durga committee under the chairmanship of E.K. Aboobacker Musaliar, and it was formally decided that 35% of the total cash income from the tomb is to be set apart to the plaintiffs jointly and the balance 65% is for the mosque. Apart from this, the first defendant collected other amount in the name of makam by putting box in various public places. The plaintiffs allege that as per the decision, the plaintiffs were receiving 35% of the total income from the Dargah and the entire income from jaram moodal. While so, on 15.6.98, the Secretary of first respondent took charge and had taken a decision to stop all the payments to the plaintiffs. Ext.X2 file was summoned from Wakf Board. That file is relating to application for registration to the Wakf Board by the Darga committee and connected proceedings taken by Wakf Board. In that matter, the junior superintendent, Wakf Board filed a report on 13.10.1987 and they have also taken C.R.P. NO: 782 OF 2007 :6: Ext.B1 minutes. The enquiry report is found in Ext.X1 file. Page 73 of Ext.X2 file shows that a meeting was held on 19.4.91 and it was decided to bury the dead body of C.M. Valliyullahi adjacent to his father's kabar. Page 71 and 75 of Ext.X2 file show that construction of makbara was decided to be entrusted to the members of the family of C.M. Valliyullahi, if they came forward to construct the same. Ext.B1 is the minutes book of C.M. Valliyullahi Dargah committee, which shows that in the meeting held on 18.9.91, it was decided to divide the income received from Dargah and 35% was agreed to be given to the family of C.M. Valliyullahi and remaining amount will be spent for religious and charitable purposes. The Vice President of the committee was authorised to verify the accounts and pay 35% of the income to the family members of the deceased C.M. Valliyullahi. 12. According to the plaintiffs, the said practice continued till 15.6.98 and when DW1 became the secretary of the first defendant committee, he stopped the practice. Considering Ext.X1 and Ext.B1, the Wakf Tribunal has rightly arrived at a conclusion, that C.R.P. NO: 782 OF 2007 :7: there was an understanding to pay certain percentage of income from the Dargah and income from jaram moodal to the plaintiffs. 13. The learned counsel for the revision petitioners submitted that the petitioners are not claiming any share of income from dargah as khadims. The plaintiffs allege that they have constructed makham in the property surrendered by the first defendant to the darga committee. In Ext.X2, the copy of bye-law of makham committee is seen on page no.99 of that file. That bye-law shows that makham was constructed under the leadership of K.P. Mammu Haji. PW1 admits that there is no document in possession of the plaintiffs to show that they have constructed makham. In the absence of such evidence, the learned Wakf Tribunal is justified in finding that makham was not constructed by the plaintiffs. 14. Learned counsel for the revision petitioners invited our attention to a passage from B.R.Varma's commentaries of Mohammedan Law 7th Edition at page 722, which reads as follows: “Offering voluntarily made in the shrines or dargah of saints by its devotees are not income of C.R.P. NO: 782 OF 2007 :8: the dargah in the legal sense, although such offerings in common parlance may be called as income of the dargah. As offerings are not income of the dargah in the legal sense, they cannot be appropriated like other income of the wakf properties”. In the same page, the author has further stated as follows: “Dargah is an object of charity and as such the utilisation of a part of the offerings in its services is in itself a charitable purpose. Again the appropriation of a part of the offering to the needs of the descendants of the saint is also a charitable purpose, for charity, under the Islamic law, includes the maintenance of one's descendants.” 15. According to the Islamic belief, the offerings made at the tomb of a dead saint are meant for fulfillment of objects which were dear to the saint in his life and they are meant for poor, indigent and sick, so that the benediction may reach the soul of the dead saint. The plaintiffs have not proved any custom or usage in giving the share of offering in the durgah to the near relatives of deceased saint as of right. C.R.P. NO: 782 OF 2007 :9: In the present case, there is no written agreement between the plaintiffs and defendants to give share of income from the durgah to the plaintiffs. In order to get the reliefs claimed in the plaint, the plaintiffs must establish their legal right. Since the plaintiffs have failed to prove their legal right, the learned Wakf Tribunal is perfectly justified in dismissing the suit. We find no reason to interfere with the judgment. Accordingly, this C.R.P. is dismissed. There is no order as to costs. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/