Madras High Court
S.M.A.K.Aazam Fakhri vs Government Of Tamilnadu on 7 April, 2026
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
2026:MHC:1392
W.P.Nos.16776 & 21288 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 26.02.2026
Pronounced on 07.04.2026
CORAM:
THE HONOURABLE Mr.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.Nos.16776 & 21288 of 2021
and W.M.P.Nos.17739, 17742, 17743, 22529 of 2021 & 36671, 35871, 35875,
36668 of 2024 & 41329 of 2025
W.P.No.16776 of 2021
1. S.M.A.K.Aazam Fakhri
2. S.M.Sabahuddin Fakhri
3. S.M.Nazeefuddin Fakhri
(1 to 3 Sons of late Haji S.M.Nizamuddin Fakhri)
1 to 3 residing at
New No.28, Old No.36, Arudale Street,
Mylapore,
Chennai 600 004.
4. S.M.Abdul Khader Fakhri
5. S.M.Naswer Fakhri
Rep. by POA Mrs.Shameem Fakhri
(4 & 5 Sons of
Late Mr.S.M.Naseeruddin Fakhri)
H/60, G2, Tamarai Flats,
th
58 Street, Thiruvalluvar Nagar,
Thiruvanmiyur,
Chennai 600 041. ...
Petitioners
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/vs/
1. Government of Tamil Nadu,
Represented by its Principal Secretary
Department of Backward Classes,
Most Backward Classes and Minorities Welfare Department,
St. George Fort, Secretariat,
Chennai.
2. The Tamil Nadu Wakf Board,
Rep. By its Chief Executive Officer,
1, Jaffar Syrang Street,
Vallalseethakathi Nagar,
Chennai – 600 001.
3. P.Anjana Priya
W/o. Late S.Prabakaran
37/A, Captain City, London, UK.,
Now come down to Chennai and staying
At No.3, Stephen Lane, Avvai Nagar,
Vyasarpadi, Chennai – 39.
4. P.Gomathieswaran,
S/o. Late S.Prabakaran
37/A, Captain City, London, UK.,
Now come down to Chennai and staying
At No.3, Stephen Lane, Avvai Nagar,
Vyasarpadi, Chennai – 39.
5. S.Ravi
S/o. P.Subramani
No.3, Stephen Lane,
Avvai Nagar, Vyasarpadi,
Chennai – 600 039.
6. S.Gomathi
D/o. P.Subramani
No.3, Balakrishna Mudali Street,
Vysarpadi,
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W.P.Nos.16776 & 21288 of 2021
Chennai – 600 039. ... Respondents
(R3 and R4 are impleaded as per order dated 30.09.2024 in W.M.P.No.10675 of
2024 in W.P.No.16776 of 2021.
R5 and R6 are impleaded as per order dated 30.09.2024 in W.M.P.No.8596 of
2024 in W.P.No.16776 of 2021)
Prayer: Writ Petition is filed under Article 226 of the Constitution of India to
issue a writ of certiorari to call for the records of the first respondent in G.O.
(Ms)No.27, dated 19.04.2021 and quash the same.
For Petitioners ... Mr.Zaffarullah Khan
Senior Counsel
Assisted by Mr.T.Magendiran
For Respondents ... Mr.P.S.Raman
Advocate General
Assisted by Mr.P.Ganesan
Additional Government Pleader (for R1)
Mr.Avinash Wadwani
for Waqf Board (for R2)
Mr.P.V.Balasubramanian
Senior Counsel
Assisted by Mr.J.Pranav Reddy
(for R3 to R8)
W.P.No.21288 of 2021
Janabha Fathima Kauser
W/o. Late S.Kamaluddin Fakhri
2A Second Floor, 'Om Apartments'
32, Kothari Road, Nungambakkam,
Chennai – 600 034. ... Petitioner
/vs/
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W.P.Nos.16776 & 21288 of 2021
1. The Principal Secretary to Government
Backward Classes,
Most Backward Classes and Minorities Welfare (S2) Department,
Fort Saint George,
Chennai – 600 009.
2. The Chief Executive Officer,
Tamil Nadu Waqf Board,
1, Jaffar Syrang Street,
Mannadi,
Chennai – 600 001.
3. S.Mohamed Ibrahim
S/o. Sultan Arif
1-B, Bazaar Road,
Mylapore, Chennai – 600 004.
4. Hamidally Street Arundale Street Masjid and
Madrassa Development Committee,
Rep. by its Secretary.
5. P.Anjana Priya
W/o. Late S.Prabakaran
37/A, Captain City, London, UK.,
Now come down to Chennai and staying
At No.3, Stephen Lane, Avvai Nagar,
Vyasarpadi, Chennai – 39.
6. P.Gomathieswaran,
S/o. Late S.Prabakaran
37/A, Captain City, London, UK.,
Now come down to Chennai and staying
At No.3, Stephen Lane, Avvai Nagar,
Vyasarpadi, Chennai – 39.
7. S.Ravi
S/o. P.Subramani
No.3, Stephen Lane,
Avvai Nagar, Vyasarpadi,
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Chennai – 600 039.
8. S.Gomathi
D/o. P.Subramani
No.3, Balakrishna Mudali Street,
Vysarpadi, Chennai – 600 039.
9. P.Dharamchand,
S/o. J.D.Pannalal,
No.76, Old No.238, Ramakrishna Mutt Road,
Mylapore, Chennai – 600 004.
10. P.Shanthilal,
S/o. J.D.Pannalal,
No.76, Old No.238, Ramakrishna Mutt Road,
Mylapore, Chennai – 600 004. ...
Respondents
(R5 and R6 are impleaded as per order dated 30.09.2024 in W.M.P.No.10678 of
2024 in W.P.No.21288 of 2021.
R7 and R8 are impleaded as per order dated 30.09.2024 in W.M.P.No.8947 of
2024 in W.P.No.21288 of 2021
R9 and R10 are impleaded as per order dated 26.02.2026 in W.M.P.No.41329 of
2025 in W.P.No.21288 of 2021)
Prayer: Writ Petition is filed under Article 226 of the Constitution of India to
issue a writ of certiorarified mandamus to call for the records of the first
respondent in G.O.(Ms) No.27, dated 19.04.2021 and quash the same and direct
the respondents to forbear from interfering with the possession and enjoyment
of the property of the petitioner's family of an extent of about 60 grounds in
S.No.2024 in Arundale Street, Mylapore, Chennai – 4.
For Petitioner ... Mrs.Hema Sampath
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Senior Counsel
Assisted by Mr.S.Murugan
For Respondents ... Mr.P.S.Raman
Advocate General
Assisted by Mr.P.Ganesan
Additional Government Pleader
(for R1)
Mr.Avinash Wadwani
for Waqf Board (for R2)
Mr.V.Ragavachari
Senior Counsel
Assisted by Ms.A.Ajimath Begum
(for R3)
Mr.P.V.Balasubramanian
Senior Counsel
Assisted by Mr.J.Pranav Reddy
(for R4 to R8)
Mr.N.A.Nazzir Husain
for Dr.M.Devendran (for R9 & R10)
***
COMMON ORDER
A. The Prayer:
1. W.P.No.16776 of 2021 is filed for a Writ of Certiorari challenging the
Government Order in G.O.(Ms)No.27, dated 19.04.2021, and to quash it.
1.1. W.P. No.21288 of 2021 is also filed with the same prayer, including a
consequential Mandamus to prevent interference with the possession and
enjoyment of the property belonging to the petitioner’s family, covering about
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60 grounds in Survey No.2024 in Arundale Street, Mylapore, Chennai – 4.
B. The Property:
2. The property in question measures an area of 95 grounds and 1748 sq.
ft., in Survey No. 2024, located at Arundale Street, Mylapore, Chennai –
600004. This property, claimed to be a Wakf property, is mostly vacant land. It
includes a mosque & houz, a private burial ground all spanning about 5
grounds. There is also a house and a commercial structure belonging to the
wakif’s family. The property is situated in the heart of Chennai City, in
Mylapore, within a densely populated mixed-use zone of residential and
commercial areas. The Google image of the property is attached as Annexure – I
of this order. Additionally, the drone images provided by the petitioners,
showing the entrance to the Arundale Street Mosque, other structures on the
property, and an overview of the entire property, are attached as Annexure – II to
this order. The divisions in the property during the litigation is contained in the
rough sketch in Annexure – III.
C. The Parties:
3. W.P.No.16776 of 2021 has been filed by S.M.A.K.Aazam Fakhri,
S.M.Sabahuddin Fakhri, S.M.Nazeeruddin Fakhri, S.M.Abdul Khader Fakhri,
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and S.M.Naser Fakhri (hereinafter referred to as ”the Fakhri Family – I”),asserting that they are the direct descendants of Janab Shah Abdul Quadir. In the
said writ petition, the Government of Tamil Nadu, represented by the Principal
Secretary to the Department of Backward Classes, Most Backward Classes, and
Minority Welfare, the authority that issued the impugned Government Order, is
arrayed as the first respondent. The Tamil Nadu Wakf Board is the second
respondent. P.Anjana Priya, P.Gomathieswaran, S.Ravi, and S.Gomathi
(hereinafter called as ”the rival title claimants”) have impleaded themselves in
the writ petition as the respondents 3 to 6, claiming that the property belongs to
them and does not belong to Wakf nor to the Fakhri Family.
3.1. W.P.No.21288 of 2021 is filed by Janabha Fathima Kauser, W/o.Late
S.Kamaluddin Fakhri (hereinafter referred to as ”the Fakhri Family – II”), who
also claims that her husband is a descendant of Janab Shah Abdul Quadir. The
Principal Secretary to the Government, Department of Backward Classes, Most
Backward Classes and Minority Welfare, is named as the first respondent. The
Chief Executive Officer, Tamil Nadu Waqf Board, is named as the second
respondent. S.Mohamed Ibrahim, who filed the petition in W.P.No.3823 of 2020
claiming to be a member of Hamidally Street, Arundale Street Masjid and
Madrassa Development Committee, is named as the third respondent, and the
said Committee as the fourth respondent (hereinafter they are collectively
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referred to as ”the Masjid Committee”). In that writ petition, the rival titleclaimants mentioned above also impleaded themselves as the respondents 5 to
8. Subsequently, P.Dharamchand and P.Shanthilal (hereinafter referred to as ”the
subsequent purchasers”), claiming to be the subsequent buyers of a portion of
the property from the Fakhri Family – II, impleaded themselves as the
respondents 9 and 10.
D. The Facts:
4. On 20.05.1959, by a notification published in the Government of Tamil
Nadu Gazette No.20A, exercising its power under The Wakf Act, 1954, the then
Madras State Wakf Board published the list of Wakfs existing in the District of
Madras in Page No.6 of SUNNI WAKFS, which included the property in
question. The Wakf is named as “Mosque and Burial ground, Arundale Street,
Mylapore.” Its purpose is described as “Pious, religious, and charitable
purposes. Mosque for prayer by all Muslims.” The Proforma states the nature of
the Wakf as “A Wakf by user and Mushrutal Khidmat.” It specifically mentions
that there are no designated beneficiaries. Syed Mohamed Abdul Khader Fakiri
is listed as Muthawalli, with the office inherited from father to son, a practice to
be maintained. The total extent is 3 cawnies and 23.1748 cents, approximately
130 grounds, listed in Column 10(a) of the Proforma. The building occupies 5
grounds, while the garden and land span 120 grounds. Under “How the Wakf is
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administered,” it is noted that the Muthawalli personally manages the garden,land, and mosque based on their use.
4.1. Aggrieved by the above notification, the Muthawalli mentioned
therein, namely S.M.A.K.Fakhri Sahib, filed an Original Suit in O.S.No.1838 of
1960 before the II Assistant Judge, City Civil Court, Madras, seeking a
declaration that the suit property is not a Wakf property. The Wakf Board was
named as the defendant in the suit.
4.2. The case of the plaintiff was that their ancestors acquired the property
through personal self-acquisition. They had constructed a building known as
“Fakhrul Manzil” on a portion of the suit land and have been using it for family
and private worship. About half a ground adjacent to their residence is also used
to bury family members. The family has invested large sums of money to
improve the suit property. The Muslim community had no access to the
building.
4.3. The Wakf Board contested the suit by claiming that the property,
consisting of 3 cawnies, 23 grounds, and 1948 sq. ft., is recorded in the Revenue
accounts as “Moulvi S.M.Fakhhiri Saheb Trust.” There is a mosque and a burial
ground used for religious purposes. Income from the remaining land is used to
benefit the mosque. The suit property was granted to the plaintiff’s ancestor by
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the Nawab of Carnatic for the construction and maintenance of the mosque andburial ground, as well as for propagating and preaching Islam. There are Pesh
Imam, Mowrin, sweepers, etc., for the mosque. The name “Fakhrul Manzil” was
given only to the residential portion where the plaintiff resides.
4.4. On the said pleadings, twelve issues were framed by the trial Court,
including “Whether the suit schedule property is a Wakf coming under the
Muslim Wakfs Act, 1954; Whether the Fakrul Manzil is a private worshipping
place or a public Mosque where all Muslims have the right to enter and offer
prayers; Whether the burial ground is a family burial ground; Whether the Wakf
Board has jurisdiction over the suit mentioned property; Whether proper
procedure was followed while issuing the notification,” etc. After detailed
consideration of the evidence on record, the trial Court decreed the suit,
declaring that the suit property, excluding the prayer hall and the right of way to
the prayer hall from the road, is not a Wakf property, and that the notification
dated 20.05.1959 is illegal and void with respect to the suit property, excluding
the prayer hall and the right of way to the prayer hall from the main road. The
suit concerning the prayer hall was dismissed, and it was declared to be a Wakf
property.
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4.5. Aggrieved by this, the Wakf Board filed an Appeal Suit in A.S.No.21
of 1964 before the Principal Judge of the City Civil Court, Madras. By that
time, since the original plaintiff, S.M.A.Fakhri Sahib, had died, eight legal heirs
—both male and female members of the family—were added as respondents 2
to 9 in the appeal. A Cross-Objection was also filed on behalf of S.M.A.Fakhri
Sahib, who was aggrieved by the portion of the decree declaring the prayer hall
and the way as Wakf property.
4.6. The Appellate Court allowed the appeal and the Cross-Objections,
thereby modifying the decree. The Appellate Court first noted that it is common
ground between both parties that the suit land was granted to the plaintiff’s
ancestor by the Nawab of Carnatic. Neither side produced the Inam Settlement
Register and each argued that the burden of proof lies with the other. After
considering the argument that the burden of proof is only on the party whose
case would fail absent the evidence, the Appellate Court decided not to assign
exclusive blame for the non-production of the document to one party. Instead, it
proceeded to decide the issues based on the evidence available.
4.7. It then examined the evidence presented by both sides. The plaintiff
produced a Persian document claimed to have been found in a box at their
house. The document recited that Shah Abdul Quadir was a pious and noble
Muslim who moved from Aurangabad to Madras. The Nawab of Carnatic and
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his servants, who were unable to find a suitable house at the Government
expense for his residence, are said to have acquired this building along with the
land and gave it to the said Shah Abdul Quadir. The Persian document did not
have any signature, and it was also not mentioned in the earlier correspondences
by the family members, and was suddenly produced during the trial. Therefore,
in the absence of any signature or prior reference in any of the correspondences,
the said document was rejected. Thereafter, the Appellate Court considered
Ex.B2, which was the Exemption Register from the assessment of the property
for tax. In Ex.B2, it was mentioned that the entire property is exempted as it is
used for the benefit of the mosque and burial ground found therein. The
Appellate Court held that, although this cannot be conclusive proof of the
dedication as such, it lends credence to the fact that the property has, in fact,
been dedicated.
4.8. The Appellate Court further considered that there was no partition
among the family members, even though four generations, including female
heirs, had come and gone. However, the entire property was kept intact.
Moreover, the Appellate Court examined the presence of four minarets and a
symbolical mehral. It also took into account the houz (water tank) used for
ablutions before prayers and two separate latrines and urinals for those using the
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prayer hall. The plaintiff’s witness admitted that about 40 to 50 persons pray
daily in the hall. Festive occasions such as Ramzan and Bakrid were also
celebrated there. Subsequently, the Appellate Court evaluated the claim that it
was a private place of worship and concluded that, typically, a private hall in
Muslim homes is just one room, but these structures proved otherwise. It
rejected the family members’ argument that only with their permission could the
public have entry. Regarding the burial ground, the Court found that only family
members were buried there, and it was not a public burial ground.
4.9. The Appellate Court found that the entire suit property had been
dedicated not only for the maintenance of the Mosque but also for the upkeep of
the descendants of Shah Abdul Quadir, the plaintiff’s first ancestor. It concluded
that the prayer hall was dedicated to the public. Even though there was no
formal deed of dedication, it was determined that the dedication was by user,
and Shah Abdul Quadir had, in fact, dedicated the property. The Court also
noted the family members’ maintenance of the property and improvements.
Therefore, the Court concluded that the dedication was a collective act by the
original founder, Shah Abdul Quadir, for the upkeep of the Mosque and of his
male descendants. The plaintiff and their ancestors, who were only in charge of
the property as Muthawallis. Accordingly, it issued the decree dated 21.01.1966.
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It is seen that the judgment and decree have become final and accepted by all
concerned. The operative portion reads as follows:
”The suit residential property, lands and the houz thereon had
been dedicated concurrently for the maintenance of the male
descendants of Shah Abdul Quadir and for the maintenance of the
prayer hall and burial ground found in the suit premises and therefore
Wakf-Alal-Aulad to the extent to which it is dedicated for the
maintenance of the mosque in the suit property. The notification to the
extent which it is inconsistent with the above finding, is void.”4.10. In 1968, the Assessment Proceedings in respect of the property were
initiated under the Estate Duty Act, 1953. The Assistant Controller, while
deciding the case, rejected the claim of the Fakhri Family members that they are
only Muthawalli and held that, when the Appellate Court found that the property
had been jointly dedicated both for the maintenance of the Mosque and for
family members, and when the income is received by the male descendants after
being used for the Mosque, the exemption can be granted based on the
utilization for the public purpose, considering the value and the family’s
expenditure on charity. Thus, the Assistant Controller, by order dated
30.07.1968, determined that they were using the income for charitable purposes,
with about one-third used for personal maintenance and two-thirds for charity,
and assessed the relevant portion of the value for duty. Later, the matter was
referred by the Income Tax Appellate Tribunal under Section 64(1) of the Estate
Duty Act, 1953, to the Division Bench of this Court in Tax Case No.24 of 1976.
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4.11. The question whether on the facts and circumstances of the case, the
Tribunal was right in holding that the deceased was obliged to maintain all his
male descendants from and out of the income of the property that remained after
defraying the expenses for the maintenance of the Mosque and consequently it
could not be said that the interest of the deceased extended to the whole income
of the property, was referred. The Hon’ble Division Bench of this Court
considered the decree passed in the appeal and considered the duties of
Muthawalli. Ultimately, it also found that there is no specific share of the
income which was mentioned for the family or for the pious purpose, either in
the judgment rendered by the City Civil Court or in any other dedication
whatsoever. Under the said circumstances, by the judgment dated 10.10.1979, it
went on to hold that between the members of the family, the total number of the
male heirs has to be taken into account and divided per capita and thus
answered the question in favour of the assesses that they will be entitled to
claim exemption to the extent of dedication for charity and that the proportion
will be a matter for being ascertained at the enquiry by the Assistant Controller.
4.12. While so, on 22.04.1991, the Tamil Nadu Wakf Board passed a
resolution in Item No.5/90 titled “ARUNDALE STREET Mosque & BURIAL
GROUND: MADRAS”. It considered objections raised by the Masjid
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Committee. It considered the notification, the suit filed, and the appellate
decree. The Board took into account the findings of the Appellate Court, which
declared the property as a Wakf-Alal-Aulad and held that the dedication was a
concurrent dedication for the maintenance of the Mosque and the family
members during the British era. The Wakf Board also noted that exemption
from tax had been obtained by declaring it a public Wakf. It was the duty of the
Wakf Board to have pursued the matter further in the Second Appeal to have the
property declared a public Wakf since the Appellate Court itself found it was a
concurrent dedication. When Fakhri family members proceeded to obtain patta
in their individual names, this action disqualified them from holding the Wakf
property in trust, either as Muthawallis or in any other capacity, and ordered the
wakf to be brought under direct management.
4.13. The Wakf Board also noted that the notification establishes the
Arabic expression “Mashuruthul Khidmat,” which means that any specified
beneficiary of a Wakf should receive benefits solely based on their
corresponding Khidmat or service, such as maintenance, sustenance, and
upkeep of the Wakf properties. It further resolved that beneficiaries are strictly
prohibited from claiming any personal rights over the Wakf properties. It
directed the Secretary of the Tamil Nadu Wakf Board to appoint a Special
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Officer to serve as the Executive Officer of the Wakf in question.
4.14. The Fakhri Family – I and Fakhri Family – II challenged the said
order by filing separate Writ Petitions in W.P.Nos.6846 & 15144 of 1991 before
this Court. On examining the case and the parties, this Court first noted that the
Appellate Court’s judgment and decree had become final. This Court considered
the Wakf Act, 1954 as it was then, and the definition of “Wakf-Alal-Aulad”
under Section 3(1)(iii) of the Wakf Act, 1954. It also considered that a
notification was issued under Section 5(2) of the Wakf Act, following a Survey
under Section 4 of the Act, which was challenged before the City Civil Court
and resulted in the appellate judgment. Therefore, it held that the appellate
Court’s findings had become final and that the issues could not be reopened or
re-argued. Subsequently, it addressed the next point: the extent to which the
property is designated as Wakf-Alal-Aulad for purposes recognised by Muslim
Law as pious, religious, or charitable, and the extent to which the property is
dedicated to the benefit of the descendants of the Wakf.
4.15. This Court rejected the contention on behalf of the Wakf Board and
other contesting respondents that the entire property should be under the control
of the Wakf Board. This Court took note of the fact that the Assistant Controller
of the Estate Duty has apportioned it as 1/3 rd and 2/3rd. It further noted that in
the pleadings of the Wakf Board or in the judgment of the Appellate Court, the
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apportionment is not mentioned. Even though 30 years had passed by, after the
judgment of the Appellate Court, no steps were taken to apportion the property
to the extent to which it was dedicated for religious and charitable purposes.
Finally, it considered that no notice was issued before passing the impugned
order. By the judgment dated 15.12.1995, the Writ Petitions were allowed the
operative portion reads as under :
”12. For the reasons stated above, the writ petitions are
allowed and the impugned order is quashed and set aside and it is
order as follows:-
1) The Wakf Board shall determine and apportion the extent of
property which is dedicated for the purpose of upkeep and
management of the Mosque efficiently and to what extent the property
is dedicated to the benefit of male descendants of the Wakif, after
giving adequate opportunity to the petitioners and concerned parties.
2) The Wakf Board shall have jurisdiction over that portion of the
property to the extent to which the property is dedicated for any
purpose recognized by Muslim law as pious, religious, or charitable,
within the definition of ‘aakf alal aulad’ given under Section 3(1) (iii)
of Wakf Act, 1954, as it stood before amending Act 69 of 1984.
These writ petitions are ordered accordingly. No order as to costs.”
4.16. Aggrieved by the above order, the Masjid Committee filed a Writ
Appeal in W.A.No.154 of 1997. By judgment dated 10.07.1997, the Writ Appeal
was dismissed in limine by holding that no grounds had been made out to
interfere with the order of the learned Judge. Pursuant to that, the Wakf Board
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passed a resolution on 19.04.1998, as Item No.78/97. It decided to strictly
comply with the directions of the High Court and duly apportion and determine
the extent of the property dedicated by the first ancestor of the Fakhri Family
for the purpose of maintaining the Mosque and for the benefit of the male
descendants. The Wakf Board proceeded as if the issue had been decided by the
Division Bench of this Court in the Estate Duty Proceedings and considered that
the Assistant Controller had held that 2/3 should be set apart for the benefits of
the male descendants and 1/3 for the maintenance of the Mosque and burial
ground, and accordingly applied the 1/3 and 2/3 ratio.
4.17. The Wakf Board decided that the Mosque and burial ground notified
in Government Gazette No.26, covering 95 grounds and 1748 sq. ft., as part of
T.S.No.2024, are declared as Wakf-Alal-Aulad as defined under Section 3(1)(iii)
of Act 29 of 1954. The Board resolved to apportion one-third of the total
properties or 30 grounds, whichever is higher, to be completely detached and
demarcated, declaring this portion as a public wakf by virtue of that resolution
and the judgment of the High Court in W.P.No.15441 of 1991, and it was
expressly agreed to be so by the Fakhri Family. A new proforma was ordered to
be prepared. The property was ordered to be physically demarcated, with
boundary stones to be erected. The remaining two-thirds was ordered to be
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released and handed over for the enjoyment of the Fakhri Family after
demarcation. The new public wakf was ordered to come under the direct
management of the Wakf Board. The demarcation, which was also mutually
approved by the parties and shown as Exhibit I in the resolution, was completed.
The Secretary/Chief Executive Officer was directed to take charge after
demarcation and to initiate proceedings to constitute a public committee to
manage the wakf as per customs and practices.
4.18. On 31.03.2003, the family members and the Superintendent of Wakf
has entered into a document of “Handing Over and Taking Over” as per the
demarcations contained therein. The boundaries of the property of the public
Wakf was once again mentioned in the said document. The same was also
transcribed in Rs.20/- stamp paper and was entered into as an agreement of
Handing over and Taking over again on 25.04.2003. A revised Proforma was
also published on 28.04.2003. As per the revised Proforma, the public Wakf had
constituted the Mosque and the burial ground of 5 grounds or thereabouts and
the vacant land of 30 grounds.
4.19. Further on 22-1-2003, at the request of the Fakhri family members,
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once again the Wakf Board took up the issue vide item No.77/98. This time, it
even observed that the High Court had directed that 30 grounds be earmarked
for public purposes and the remaining land be declared as private property.
While reiterating the other clauses in the earlier resolution, it held that the burial
ground was the Fakhri family’s private burial ground and they shall protect the
same by putting up a compound wall. It further stated that the Muthawalliship
with reference to the administration of the Mosque shall be hereditary, and
preference will be given to the wakif’s family at the time of constitution of the
committee.
4.20. On 31.03.2003, an agreement of handing over was entered into
between the Superintendent of Wakfs and the members of the Fakhri Family on
a plain paper. Once again, on 25.04.2003, an Agreement of Handing Over and
Taking Over was signed on a twenty-rupee stamp paper. In this agreement, the
entire property was divided into four schedules. Schedule – A consisted of 30
grounds retained by the Wakf Board. Schedule – B included 60 grounds with
four items: Item – 1 was 42 grounds of vacant land; Item – 2 was 13 grounds of
vacant land; Item – 3 was 4.5 grounds of the Fakhri Family’s residential house;
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and Item – 4 was 1200 sq. ft. of land with a shed thereon. Schedule – C covered
the mosque, which spanned 5 grounds. Schedule – D was the private burial
ground, covering 1,748 sq. ft.
4.21. On 28.04.2003, a revised proforma was prepared, mentioning both
the Mosque and 30 grounds together as Public Wakf. However, on 27.08.2003,
a Gazette notification was published stating that the Wakf Board had taken over
the direct management of the 30 grounds of property for a period of one year,
and the Superintendent of Wakf was appointed as the Executive Officer to
oversee the wakf’s affairs. It also states that, following the taking possession of
rd
the Mosque and its properties, 2/3 of the area, i.e., 60 grounds, was handed
over to the Fakhri Family for their enjoyment.
4.22. It is stated that, regarding the property allocated to the family, a
patta was issued on 04.09.2003 in the name of the Fakhri family members,
making the subdivisions as Survey Nos.2024/1, 2024/3, 2024/4, 2024/6, and
2024/7 of Mylapore Village. In respect of the subdivisions 2024/2, 5 and 8,
patta was mutated in the joint names of wakf board and the Fakhri family
members. On 25.09.2003, the Wakf Board resolved to develop the public wakf
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portion in S.No.2024/2, 5, and 8 through a joint venture by establishing a
working women’s hostel for Muslim women. On 11.11.2003, a general notice
was issued by the Chief Executive Officer, inviting offers to develop the
property and the proposal to construct was also published in the Gazette on
10.12.2003.
4.23. While so, the Masjid Committee and two others raised an objection
and requested the Wakf Board to reopen the case for proper adjudication in
terms of the order passed by the High Court. It was rejected by the Wakf Board
vide Resolution in Item No.129 of 2003 dated 05.02.2004. Challenging the
same, the Masjid Committee and others filed O.A.No.3 of 2004 before the Wakf
Tribunal on 15.03.2004.
4.24. By a judgment dated 20.12.2007, the Tribunal found that the
resolution of the Wakf Board suffers from non-application of mind inasmuch as
it rejected the case of the Masjid Committee and others on the sole reason that
the entire exercise was in implementation of the Court Order and did not answer
the grounds raised by them by adducing proper reasons. It should re-do the
exercises after affording proper opportunity to the parties. Accordingly, after
setting aside the resolution, it remanded the matter back to the Wakf Board for
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passing fresh orders.
4.25. At this stage, two Writ Petitions in W.P.Nos.17624 and 17625 of
2008 were filed by the Fakhri Family – I. W.P.No.17624 of 2008 was filed for
Writ of Mandamus forbearing the Wakf Board from considering the Wakf
Application dated 03.03.2003 and W.P.No.17625 of 2008 was filed challenging
the order of the Tribunal in O.A.No.3 of 2004 dated 20.12.2007. The case of the
writ petitioners is that everything becomes final once the demarcation is done,
and thereafter, there can be no question of remanding the matter or taking it up
again. By judgment dated 22.10.2008, the Writ Court found that the said order
was passed without hearing the Masjid Committee and others. Therefore, the
Tribunal’s order was upheld, and the matter was remanded for fresh
consideration. It further directed that the Wakf Board complete the proceedings
in terms of the order passed in W.P.No.6846 of 1991.
4.26. As a matter of fact, aggrieved by the very same order passed in
O.A.No.3 of 2004, a Civil Revision Petition in C.R.P.No.4186 of 2008 was filed
by the Fakhri Family – II and being aggrieved by the order passed in the Writ
Petitions, the Fakhri Family – I had filed a Writ Appeal Nos.1 and 2 of 2009
and Fakhri Family -II had filed W.A.Nos. 5 & 6 of 2013. All the matters were
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taken up together by the Hon’ble Division Bench of this Court and a common
order was passed on 20.12.2013. The Hon’ble Division Bench considered the
fact that the Wakf Board before passing the order dated 19.04.1998, had issued
notice to the Secretary of the Masjid Committee on 28.01.1998 and the
Secretary did not appear for the enquiry. The Hon’ble Division bench considered
that no prejudice was pointed by the said persons on account of the order dated
19.04.1998. It held that the rights of the parties having been determined by the
order of the Court in W.P.No.6846 of 1991 and confirmed in W.A.No.154 of
1997, once again, the issue of demarcation cannot be re-agitated. The Hon’ble
Division Bench also noted that the third-party interests are created in 2/3 rd of
the property allotted to the male descendants of the Wakif.
4.27. Aggrieved by this, the Wakf Board also approached the Hon’ble
Supreme Court of India. By an order dated 08.07.2015, while condoning the
delay in filing the Special Leave to Appeal (C) No.10837 of 2015, the Hon’ble
Supreme Court held that it did not find any legal or valid grounds for
interference, and the Special Leave Petition was dismissed. Separate Special
Leave Petitions filed by the Masjid Committee and others in Special Leave to
Appeal (Civil) Nos.35138–35142 of 2014 were also dismissed by another order
dated 23.11.2017.
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4.28. Thereafter, it is stated that the Fakhri Family – I had also filed
W.P.No.11964 of 2018 for a direction to the Wakf Board to remove the vehicles
that have been parked unlawfully in the 2/3 rd portion allotted to them and for
compensation. Furthermore, with reference to the management of the Mosque,
W.P.No.22577 of 2017 was also filed. Counter affidavits were filed by the Tamil
Nadu Wakf Board affirming the demarcation. By an order dated 23.09.2024, the
Writ Petition in W.P.No.11964 of 2008 filed by the Fakhri Family – I was
disposed of with liberty to approach the competent Civil Court. The Court, after
quoting the prayer, did not make any findings regarding the removal of the
parking; however, it granted liberty without making any observation on the
merits, stating that the petitioners could approach the Civil Court for damages
alone.
4.29. Under these circumstances, S.Mohammed Ibrahim submitted a
representation to the Chief Executive Officer of the Tamil Nadu Wakf Board on
05.12.2019, requesting the Chief Executive Officer to conduct an enquiry as per
Section 26 of the Wakf Act, 1995, regarding the issue. Furthermore, he
approached this Court through W.P.No. 3823 of 2020. It was stated before this
Court that, according to the order in W.P.No.6846 of 1991, the Wakf Board must
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determine and apportion the extent of the property, and in this regard, the
petitioner has submitted a representation to take necessary action. During the
hearing, the learned counsel for the petitioner requested the Court to direct the
disposal of the representation. It was also conveyed on behalf of the Wakf Board
that the Chief Executive Officer had already begun the enquiry and that,
following its completion, orders would be issued. In this view, without
expressing any opinion on the merits of the case, this Court, by order dated
18.02.2020, directed the Chief Executive Officer to consider the representation
dated 05.12.2019 and pass appropriate orders on or before 31.06.2020.
4.30. Pursuant to the enquiry, the Chief Executive Officer found that the
Board’s resolution vide Item No.78/97 dated 19.04.1998, which released two-
thirds of the properties for the benefit of private persons, was without
jurisdiction and an abuse of power conferred on the Wakf Board. These
resolutions clearly violate Section 26(a) & (b) of the Wakf Act, 1995. The order
was issued exercising power under Wakf Act, 1954. When the orders were
issued, the Wakf Act, 1995, was already in force. Similarly, by a Resolution
dated 22.01.2003, the Board amended its previous resolution. Once orders are
issued, the Wakf Board becomes functus officio and lacks the authority to
review its own orders. The Chief Executive Officer noted that although Gazette
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Notifications had been issued, they had not yet been implemented, and the
matters were pending before the Civil courts. Therefore, the resolutions needed
reconsideration. Upon referral for reconsideration, since the Board was no
longer active and the Special Officer in charge agreed that the resolutions had
not been implemented and the property remains undivided in the field, he was
unable to confirm whether the resolutions were contrary to the Wakf Act, 1995.
Consequently, he concluded that the matter should be referred by the Chief
Executive Officer to the State Government for a final decision.
4.31. Thereupon, the matter was referred to the Government by the Chief
Executive Officer under Section 26 of the Wakf Act, 1995. The Government
found that the net result of the civil proceedings is that the individuals must
maintain the Mosque from the income of the suit property and are entitled to use
the remaining income for their own and their family’s maintenance. The
decisions under the Estate Duty Act and the Hon’ble Division Bench in the
reference were taken into account.
4.32. Thereafter the Government considered the directions of this Court
in W.P.No.6846 of 1991 and the judgment of the Civil Court has become final.
The direction given to the Wakf Board to apportion the extent of the property
which is dedicated for the purpose of upkeep and management of Mosque
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efficiently and to what extent the property has to be dedicated to the male
descendants has to be decided by the Wakf Board. It was found that upon
remand by the High Court without hearing any person other than the writ
petitioners, the Wakf Board decided that the Wakf is a Wakf-Alal-Aulad
composite in nature and directed the amendment of Proforma. The Government
took notice of the subsequent proceedings including the further amendment of
the Proforma and the Original Application that was filed by the third parties and
further orders that were passed thereon.
4.33. The Government noted that the entire property is ultimately Wakf
by the user, and the Wakf has been recognised as a ”Mashrutul Khidmat”. It
concluded that the entire property is a Wakf-Alal-Aulad. The earlier resolution
of the Board was based on a wrongful assumption that the Civil Court had
granted the decree as if the remaining portions of the properties were private
properties of the Fakhri Family. This error goes to the root of the matter. The
Wakf Board is not authorised to make such a determination. The second order
amounts to a further review without any statutory powers. Since the earlier
resolution, which is reiterated, has not yet been implemented, the Government
ordered the cancellation of the two resolutions dated 19.04.1998 and
22.01.2003. As noted above, challenging this, the present Writ Petitions are
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filed.
E. The Arguments for Fakhri Family -I:
5. Mr.Zaffarullah Khan, learned counsel representing the petitioner /
Fakhri Family – I, submits that the impugned Government Order is patently
illegal because the apportionment between the public Wakf of Mosque burial
grounds and 30 grounds – Wakf-Alal-Aulad composite Wakf, and the 60
grounds being the Wakf-Alal-Aulad (simplified), which is solely for the benefit
of Abdul Quadir’s male descendants, is based on the Decree of the Civil Court
and the decision of this Court in W.P.No.15441 of 1991, confirmed in the Writ
Appeal, with further litigation confirmed by the Division Bench in W.A.No.1 of
2019 etc., and upheld by the Hon’ble Supreme Court of India. Therefore, there
was no question of invoking Section 26 of the Wakf Act. Additionally, the
procedural requirements under Section 26 were not followed by the Chief
Executive Officer, as there was no proper referral or decision by the Board.
Moreover, even if a referral to the Board had been made, it could not occur after
the implementation of the decisions. Once the impugned order is set aside, the
next step is to demarcate the Mosque area where the public prays and the Fakhri
Family’s graveyard. The area outside these boundaries should generate income
from 30 grounds for maintaining the Masjid and burial ground, with any excess
income reverting to the family. The third unit, Wakf-Alal-Aulad (simplified),
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exclusively benefits the male descendants of Syed Abdul Quadir Fakhri.
5.1. It is submitted by the learned counsel that tenders can be invited from
reputed builders for a joint venture covering this extent of 90 grounds. The
development of the built-up area can be divided into two blocks of 30 and 60
grounds, and leases can be granted to investors or builders for these portions to
recover their investments with reasonable profits. The learned counsel would
produce records of commercial projects, projecting a combined monthly income
of Rs.1.80 Crore from the entire development. He further submits that if such an
exercise is undertaken, it would result in a win-win situation.
F. The Arguments for Fakhri Family -II:
6. Mrs.Hema Sampath, the learned Senior Counsel appearing for the
Fakhri Family – II, by outlining the facts mentioned above, submits that the first
round of litigation resulted in a judgment and decree from the Civil Court.
According to this, the suit property is a Wakf-Alal-Aulad to the extent it is
dedicated for the maintenance of the Mosque. The second round of litigation in
W.P.No.19441 of 1991 concerned the apportionment of the property for various
purposes, and a direction was issued to allocate the property accordingly, which
was also upheld by the judgment in W.A.No.154 of 1997. The decision to divide
the property between the Wakf and the family members became final during this
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second round. Orders passed in both rounds were implemented through a
resolution on 19.04.1998, further modified on 21.01.2023, followed by the
signing of the memorandum on 31.03.2003, an agreement on 25.04.2003, and
the publication of the Proforma on 28.04.2003. Subsequently, an order was
issued on 25.09.2003 confirming the implementation, and an advertisement was
published on 11.11.2003 inviting proposals for joint development. The third
round of litigation was initiated again through an application in O.A.No.3 of
2004, ultimately resulting in a common order passed in the Writ Petitions.
6.1. Finally, the matters were decided by the Hon’ble Division Bench in
Writ Appeal in W.A.Nos.1 and 2 of 2009 etc., and the further Special Leave
Petitions before the Hon’ble Supreme Court were also dismissed. Thus, the
question of whether the Wakf property could be divided reached finality, and the
Masjid Committee and other persons interested were all adequately represented.
The property was also measured, survey stones were embedded, and a Board
was put up by the Wakf Board. After these four rounds of litigation, the matters
reached finality, and the fifth round was initiated by the said S.Mohammed
Ibrahim by submitting a representation and filing W.P.No.3823 of 2020.
6.2. The counsel for the Wakf Board did not represent before this Court as
the decision has already been implemented, and the power under Article 226 of
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the Constitution of India cannot be invoked. Only under the circumstances was
an innocuous order to consider the representation passed. Taking advantage of
the same, the impugned Government Order is issued, cancelling the earlier
resolutions passed in implementation of the Court Orders.
6.3. The learned Senior Counsel submits that the issues have reached
finality up to the Hon’ble Supreme Court of India, and any further attempt to
raise the same issue before the Tribunal in O.A.No.3 of 2004 is itself barred by
the principles of res judicata. The claim is also barred by limitation because
when the Civil Court decided the issue on 21.01.1966, 60 years ago. In
U.P.Sunni Central Board of Wakf and another vs. Smt. Hasan Jehan
Begum and another1, the Division Bench of the Hon’ble Allahabad High Court
held that in Wakf-Alal-Aulad, the entire property does not come within the
control of the Board but only those properties dedicated for religious, pious, and
charitable purposes.
6.4. When the Wakf Board has decided to divide the property into 30 and
60 grounds, there is no question of nullifying the same after 25 years. The
judgment in T.Kaliamurthi and another vs. Five Gori Thaikkal Wakf and
others2 is relied upon to contend that, in view of Sections 27 and 31 of the
1
AIR 1977 All 18 DB
2
(2008) 9 SCC 306
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Limitation Act and Section 107 of the Act, the power of the government could
not be pressed into service retrospectively to revive the dead cause. The
judgment in Viceroy Hotels Limited and others vs. Telangana State Wakf
Board and others3 is also relied upon. The principles in the maxim “bon judicis
est lites dirimere, ne lis ex lite oritur, et interest reipublicae ut sint fines litium,”
which cast a duty on the court to bring finality to litigation, were relied upon. It
is contended that the order dividing the property was implemented by the Wakf
Board through several positive acts. Pursuant to this, third-party rights were also
created, and they cannot be set aside by the Government belatedly. It is also
contended that the impugned Government Order is without jurisdiction.
6.5 The learned Senior Counsel argued that the Masjid Committee and
others were never genuinely interested but merely intermeddling, aiming to
protect encroachers and others who were siphoning off even the Wakf’s income
from the 30 grounds allotted to it. It must be noted that there is no written Wakf
Deed related to this Wakf. When a Wakf is established by user, it does not carry
any other religious or pious duty; it is solely a place of worship. The judgment
in W.P.No.19441 of 1991 considered the earlier decision of the Court in
Coimbatore Akthar Jamath vs. The Tamil Nadu Wakf Board4, while
3
2024 SCC OnLine TS 689
4
100 LW 949
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deciding on the appropriate steps to demarcate the area occupied by the
Mosque, Madrassa, and Dargha, declared it a Wakf and issued a notification.
Therefore, this Court made a conscious decision to demarcate the properties.
6.6 The judgment in Syed Mohd. Salie Labbai (died) by L.rs. vs
Mohd. Hanifa (dead) by L.rs.5 and Jawaharbeg Umraobeg Mussalman and
Another vs. Abdul Aziz Bhondumiya Mussalman and Another 6 was relied
upon to contend that it is the Mosque and its adjuncts, which are incidental to
offering prayers, that would alone form part of the public wakf. The Wakf Board
is utilizing the 30 grounds allotted to it by allowing third parties to park cars and
has been collecting Rs.5,000/- per month from the owners of the cars, thereby
generating income. Even from these collections, the Jamathdars indulged in
misappropriation, as evidenced by the District Superintendent of Wakfs’ report
rd
dated 03.02.2020. Regarding the 2/3 property earmarked for family members,
the Wakf Board has no say. When the Wakf Board previously invited tenders for
joint ventures to establish a working women’s hostel on the property, it did not
include any plans for funding, and no third-party interest could be introduced
within the 30 grounds. The entire action of the respondents under Section 26 of
5
(1976) 4 SCC 780
6
AIR 1956 Nagpur 257 DB
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the Wakf Act is without jurisdiction.
G. The Arguments for the State of Tamil Nadu:
7. Mr.P.S.Raman, the learned Advocate General appearing for the
Government, submitted that the direction given by this Court in W.P.No.19441
of 1991 should be interpreted according to the findings in the Civil Court’s
judgment. When the Civil Court decree states that the entire property was
dedicated by the ancestors of the family members and this is a concurrent
dedication, the direction would, at most, only imply demarcation rather than a
permanent partition of the property. In any case, when the Wakf Board
previously decided, it did not consider that it lacks jurisdiction to release such
properties where the Wakf Board has supervisory rights. Since the entire
property is construed as “Mashuruthul Khidmat,” whereby after covering
expenses for the Mosque’s upkeep and its purposes, the family members can be
maintained, there was no valid reason to alter the original nature of the Wakf.
No implementation on the ground has occurred. The Chief Executive Officer
rightly exercised his power under Section 26 of the Wakf Act by referring the
resolution to the Wakf Board for reconsideration.
7.1 The learned Advocate General would submit that although no positive
findings were made, the Special Officer acting on behalf of the Wakf Board has
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reiterated the resolutions; therefore, the matter was referred to the Government
under Section 26 of the Wakf Act. Upon referral, it is evident that the Civil
Court did not specify that 2/3 should go to the family and 1/3 for family
purposes. There was no positive direction from the High Court to allocate the
property in such a manner; this decision was taken by the Wakf Board. This
arrangement is not in the best interests of the Wakf. The fact that everything
remains idle and no progress has been made indicates that the resolutions were
not in Wakf’s interest and fall within the scope of 26A to C, allowing the Chief
Executive Officer to refer the matter to the Government. The Government has
reviewed the issues in detail and, noting that the decisions on the ground were
not implemented and that the Chief Executive Officer followed the provisions,
decided to cancel the earlier resolutions. The Government Order is legally valid.
H. The Arguments for the Wakf Board:
8. Mr.Avinash Wadwani, the learned Counsel appearing for the Wakf
Board, submitted that the findings in the First Appeal chiefly govern the rights
of the parties. According to these findings, it is clear that the entire Wakf is a
composite Wakf for both purposes. He strongly relied on the judgment of this
Court in Chairman, Tamil Nadu Waqf Board and Another vs.
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M.S.Muhammad Yahya (died) and others , where the Court considered the
7
definition and law relating to Wakf-Alal-Aulad. It was held that giving property
to one’s own family also qualifies as charity under the law, and both Wakf-Alal-
Aulad (simplicitor) and Wakf-Alal-Aulad (composite) align with the Shariat.
The counsel also argued that the findings in the assessment proceedings
reinforce the composite nature of Wakf. In such circumstances, any attempt to
demarcate the property contradicts the very purpose of dedication. The entire
exercise conducted earlier by the Wakf Board was wholly without jurisdiction.
Recognising this, the matter was referred to the Government by the Chief
Executive Officer, which then passed the impugned orders as per law. The Wakf
Board will undertake appropriate actions to utilise the entire property through
various projects, thereby protecting Wakf’s interests. Income from the property
will be maximized to ensure both purposes are adequately served.
I. The Arguments for the Masjid Committee:
9. Mr.V.Ragavachari, the learned Senior Counsel appearing for the third
respondent in W.P.No.21288 of 2021, would point out the findings of the Civil
Court decree. The decree clearly states that the entire property is dedicated by
the founder, Shah Abdul Quadir. Once dedicated, the property vests in God
according to Islamic principles, and no one is entitled to interfere with, alienate,
7
2023 SCC OnLine Mad 6019
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or partition it. The only permissible act thereafter is to carry out the pious
purposes specified in the dedication. When family members have violated this
by changing the patta in their names or alienating part of the property, their
rights, including those related to Wakf management, must be determined
accordingly. The learned Senior Counsel also argues that the Estate Duty
Assessment Orders relate to the assessment of estate duty under the provisions
of the Estate Duty Act, and do not have the effect of divesting Wakf property.
The findings of the Assistant Controller and the Hon’ble Division Bench of this
Court should be understood only in the context of determining the duty payable
and the extent of exemption permissible under the Act, and should not override
the fundamental Islamic doctrine that property vested in God remains so.
9.1. Mr.V.Raghavachari, the learned Senior Counsel, will rely on the
judgment of the Hon’ble Supreme Court of India in Sayyed Ali and Others vs.
A.P.Wakf Board, Hyderabad, and Others8, specifically referencing Paragraph
No.13, to argue that once a Wakf is created, it remains so indefinitely and
continues to be governed by the provisions of the Wakf Act. The learned Senior
Counsel will also cite the judgment of this Court in Tamil Nadu Wakf Board
vs. Sannasi Munayathiriyan9 to contend that when there is no distinction
8
(1998) 2 SCC 642
9
94 LW 511
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between public charitable purpose and private purpose, the entire property
should be regarded as a dedication in favour of the Almighty.
9.2. The learned Senior Counsel would rely on the judgment of the
Hon’ble Supreme Court of India in Chhedi Lal Misra (dead) through Lrs. vs.
Civil Judge, Lucknow, and others10 to argue that once a Wakf is established,
the Wakif is divested of his title to the properties, which then vest in the
Almighty after the creation of the Wakf. The learned Senior Counsel would also
cite the judgment of the Hon’ble Supreme Court of India in Thakur Mohd.
Ismail vs. Thakur Sabir Ali and others11 to contend that the bifurcation of the
property as private property renders the dedication illegal.
9.3. The learned Senior Counsel relied upon the judgment of the Hon’ble
Supreme Court of India in H.V.Nirmala vs. Karnataka State Financial
Corporation and others12, specifically Paragraph No.13, to contend that if an
authority passes an order without inherent jurisdiction, the order is a nullity.
J. The Arguments for Subsequent Purchasers:
10. Mr.N.A.Nazzir Husain, the learned counsel appearing on behalf of the
10
(2007) 4 SCC 632
11
1962 SCC OnLine SC 265
12
(2008) 7 SCC 639
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subsequent purchasers, once again referring this Court to the records, submits
that the II Assistant City Civil Court, Madras, in O.S.No.1538 of 1960, declared
that the entire suit property is private property of the Fakhri Family, and only
the portion where the Mosque is located is a public Wakf. When the Wakf Board
filed an appeal and the Fakhri Family also filed a Cross Appeal, the Appellate
Court found that S.M.A.K.Fakhri Sahib was in possession and enjoyment of the
suit property. Thereafter, it allowed the appeal and cross-objection and modified
the decree to state that the property is a Wakf-Alal-Aulad, only to the extent it is
dedicated for the maintenance of the Mosque and burial ground, and declared
that the notification is void to the extent it is inconsistent with this declaration.
Thus, the Civil Court affirmed the private ownership of the suit property, and
only to the extent that the income is to be used for the Mosque was declared as a
Wakf-Alal-Aulad.
10.1. The learned counsel further submits that this Court in W.P.No.
19441 of 1991 had decided that the Wakf Board only has limited jurisdiction
concerning Wakf-Alal-Aulad. Based on this finding, the Court ordered the Wakf
Board to determine and apportion the property dedicated for the upkeep and
management of the Mosque efficiently. The demarcation was carried out on the
ground, and the Wakf Board has already directed the assumption of direct
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management for the new public Wakf. Additionally, on 22.01.2003, the Wakf
Board clarified that the burial ground shall be used solely for the burial of
deceased members of the Fakhri Family. The Chief Executive Officer also
issued an order implementing the resolution, dated 25.03.2003. Subsequently,
the Agreement of Handing Over and Taking Over was executed. Considering all
the above, regarding an extent of 60 grounds, S.M.Nizamuddin Fakhri,
S.M.Sabahuddin Fakhri, S.M.Abdul Khader Fakhri, and S.M.Nazeefuddin
Fakhri became entitled to a one-third undivided share in the property spanning
60 grounds in R.S.No.2024/1, 3, 4, 7, & 8. Similarly, S.M.Kamaluddin Fakhri
was entitled to a one-third share. S.M. Naseeruddin Fakhri, S.M. Abdul Khadar
Fakhri, and S.M.Abdul Naseer Fakhri were entitled to another one-third of the
property. Additionally, 13 grounds within the aforementioned 60 grounds of the
private property were sold through three sale deeds to Sivanandham, Selvarani,
and Ezhumalai.
10.2. The learned counsel further submits that Kamaluddin Fakhri, the
husband of the writ petitioner in W.P.No.21288 of 2021, sold his one-third
undivided share in the remaining 47 grounds out of 60 grounds to subsequent
purchasers through a registered sale deed bearing Document No.802 of 2006.
The issue cannot be re-agitated, especially when the demarcation has been
notified in the official Gazette and third-party interests, such as those of the
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respondents, have been created. The earlier Division Bench in W.A.No.112 of
2009, among others, had explicitly considered the fact that family members
dealt with the property and third-party rights were created, dismissing the
challenge. This was also confirmed by the Hon’ble Supreme Court of India, and
the Special Leave Petitions were dismissed. Therefore, the learned counsel
argues that once a consequential order dated 25.03.2003 was passed by the
Chief Executive Officer based on the resolutions from 1998 to 2003, there is no
ground to invoke Section 26 of the Wakf Act thereafter. The decree of the Civil
Court has become final, declaring the property as Wakf-Alal-Aulad only to the
extent it is dedicated for the maintenance of the Mosque, while the remaining
extent remains private property.
10.3. The learned counsel would further submit that in any event, when
the matter of apportionment and dealing with the property has become final
pursuant to the dismissal of the Special Leave Petitions in the earlier round,
there is no authority on the part of the Government to have overruled the same.
The power under Section 26 of the Wakf Act is not a power of review, and
therefore, the impugned Government Order is invalid. When the Government
Order undoes all the transactions that happened in between and nullifies the
valuable proprietary rights of the respondents 9 and 10, the same is passed
without even giving the petitioner an opportunity. The findings in the
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Government Order that the Wakf Board had no power to demarcate and
apportion the property is one of the specific grounds raised in the earlier round
before the Hon’ble Supreme Court and thus deemed to be negatived, cannot be a
ground to set aside the resolutions. Similarly, the finding in the Government
Order that only apportionment of income and not the property could be made is
also considered in the earlier round and dealt with. When the Masjid Committee
was not permitted by the Hon’ble Division Bench of this Court to re-agitate the
entire issue on the ground that it had attained finality, the same was done
indirectly once again. The finding in Tax Case No.24 of 1976 is only in favour
of the respondents 9 and 10, inasmuch as, only pursuant to that finding, the
property was directed to be demarcated and identified.
10.4. The learned counsel would submit that the contention that “Once a
Wakf, always a Wakf” cannot be invoked in this case, since the Civil Court has
only decided the aspect related to maintenance of the Mosque as Wakf-Alal-
Aulad. The decision of this Court in M.S.Muhammad Yahya (cited supra)
concerns a different set of facts and does not apply here. In this case, the entire
property is claimed to be Wakf solely on the basis of the notification, but to the
extent it contradicts the Civil Court’s findings, the notification was declared
void. Therefore, the learned counsel argues that the alienation is lawful and the
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impugned Government Order should be interfered with.
K. The Arguments for Rival Title Claimants:
11. Mr.P.V.Balasubramaniam, the learned Senior Counsel appearing on
behalf of the rival title claimants, made detailed submissions. According to him,
neither the Wakf Board nor the Government is entitled to pass any orders, and
the property is the personal property of the rival title claimants. When the Civil
Court already declared in the presence of the Wakf Board that the property
belongs to the rival title claimants, this Court should quash the Government
Order and other proceedings, not on the grounds raised by the petitioner, but on
the basis that the property belongs to the rival title claimants. In fact, the learned
Senior Counsel elaborated his submission in detail. His contentions were also
replied to by the learned counsel appearing on behalf of the Fakhri Family – I,
Fakhri Family – II, and the Wakf Board in detail. Since these form part of a
distinct question, they are not narrated in detail to avoid disrupting the context;
they will be considered in detail in the issue framed in respect thereof.
L. The Questions:
12. I have considered the rival submissions made on either side and
perused the material records of the case. The issues that are to be considered in
these Writ Petitions are as follows:
(i) Whether in the present writ proceedings, the title of the rival title
claimants must be recognised as binding on the other parties herein and relevant
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to the lis relating to the validity of the Government Order pending, and whetherit should be decided that only the rival title claimants hold the title and that no
Wakf exists?
(ii) What is the nature of the entire property, the effect of demarcation,
rd
and should the 2/3 portion be considered private property of the Fakhri family
members?
(iii) Whether the impugned action of the Chief Executive Officer, Wakf
Board, and the Government of Tamil Nadu under Section 26 of the Wakf Act,
1995, is sustainable in law?
(iv) To what reliefs are the parties entitled?
M. Question No.1:
13. The contention of the rival title claimants is that the property which is
the subject matter in the present case in R.S.Nos.2024 and 2025 were part of the
larger extent comprised in Old Survey Nos.2279, 2275, 2276, 2277, 2252, and
2253, measuring 1935.5 kuzhis in Mundagakanniamman Street (Arundale
Street), Mylapore. The same was purchased by Ponnambalapillai @ Varama
under a registered sale deed dated 13.12.1915, registered as Document No.26 of
1916 at the Office of the Sub-Registrar, Saidapet. Thereafter, by a registered
settlement deed dated 29.07.1955, registered as Document No.1368 of 1955, at
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the Office of the Sub-Registrar, Saidapet, the said Ponnambalapillai settled the
property in favour of his elder son, P.Subramani, who thereafter enjoyed it as
the absolute owner. Portions of about 5 grounds were encroached, including a
mosque and burial ground, leaving about 90 grounds and 75 sq. ft. of vacant
land. While so, a Civil Suit in C.S.No.185 of 2008 was filed by S.Prabhakaran
and his wife Anjana Priya, S.Gomathi, and S.Ravi against P.Subramani, for
partition and separate possession of the lands measuring 90 grounds and 75 sq.
ft. A compromise decree was entered into on 11.03.2010, allotting 22.5 grounds
each to the four clans of P.Subramani, Ravi, Gomathi, and the legal heirs of
S.Prabhakaran.
13.1. Thereafter, P.Navaneedharaj brother of the said P.Subramani filed a
Civil Suit in C.S.No.694 of 2010 seeking to set aside the compromise decree in
C.S.No.185 of 2008 against the rival title claimants. In that suit, the Revenue
Authorities, namely, the Assistant Commissioner of Urban Land Tax, the
District Collector, the District Revenue Officer, the Tahsildar, and the Tamil
Nadu Wakf Board, were also made parties. The suit was dismissed on
09.10.2017. However, upon filing O.S.A.No.181 of 2018, the Hon’ble Division
Bench of this Court allowed the appeal by a judgment dated 08.10.2021 and
remanded the case for a de novo trial. After the remand, the suit claim was
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dismissed, and the counterclaim filed by the rival title claimants was decreed,
declaring them as having title and lawful ownership of their co-shares in the 90
grounds and 75 sq. ft. area. This declaration was made in the presence of the
Wakf Board.
13.2. The rival title claimants also filed W.P.No.33899 of 2022 to direct
the revenue authorities to grant patta to them. By order dated 16.09.2022, the
revenue authorities were directed to consider the representation in light of the
Civil Court decree. Due to the pendency of the present writ petition, the District
Collector passed an order on 15.04.2023, deferring the grant of patta. The
proceedings before the Revenue Authorities dated 25.06.2008, 28.06.2012,
05.11.2012, and 04.08.2006, as well as the entries in the permanent land register
and encumbrance certificates, consistently reflect the title and possession of the
lawful owners and their predecessors, along with the cancellation of earlier
entries in favour of the writ petitioners.
13.3. The rival title claimants argue that when the Wakf Board
purportedly issued a notification on 20.05.1959, recognising the entire extent as
Wakf, no notice was given to the true owners. They contend it was issued
without a proper enquiry into the title as required by the Wakf Act. In fact, even
during the dispute with the Fakhri Family, the Civil Court noted that no proper
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enquiry was conducted when the notification was issued. The only title
document was a Persian deed, which the Appellate Court rejected. The assertion
that the property is Wakf lacks any supporting title document. The rival title
claimants alone possess title deeds. Furthermore, the Fakhri family also filed
O.A.No.1445 of 2013 to implead themselves in C.S.No.694 of 2012, which was
dismissed for non-prosecution; therefore, the judgment in C.S.No.694 of 2012
remains binding on them.
13.4. It is the contention of Mr.P.V.Balasubramaniam, the learned Senior
Counsel, that when the tracing of title from the registered sale deed of 1915 in
favour of Ponnambalapillai, till the decree, are entirely in favour of the rival
title claimants, and the Tamil Nadu Wakf Board, being a party in the suit as well
as in O.S.A.No.181 of 2018, did not, despite an opportunity, establish that the
entire land is a Wakf, the decree dated 06.01.2022 is binding inter parties.
Therefore, the Wakf Board, contesting otherwise in the present matter, is barred
by the principles of res judicata.
13.5. The learned Senior Counsel would rely on the judgment in Tamil
Nadu Wakf Board vs. Hathija Ammal13 for the proposition that the Wakf
Board should follow the procedure required under Sections 4, 5, 6, and 27 of the
13
AIR 2002 SC 402
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Wakf Act before notifying the Wakfs under Section 5 of the Act. Neither the
parties nor the Government is bound by defective Wakf notifications. Once the
Fakhri Family attempted to implead themselves in the suit unsuccessfully,
without specifically mentioning this, these Writ Petitions are filed, and as such,
the suppression of such vital facts amounts to fraud on the Court. When the rival
title claimants are the true owners of the property, the contentions between the
parties are nothing but shadow boxing. Therefore, this Court, while denying the
reliefs prayed for by the writ petitioners, should also affirm the cancellation of
the Wakf Board’s proceedings and consequently direct the Tahsildar to act
promptly upon the decree in C.S.No.694 of 2012 and mutate the revenue
records in favour of the rival claimants.
13.6. In reply thereto, it is argued on behalf of the writ petitioners that,
based on the provisions contained in the Wakf Act, 1995, and the judgment of
the Hon’ble Supreme Court in Rashid Wali Beg vs. Farid Indari & others14 ,
as well as the more recent judgment in Habib Aladdin vs. Mohammed
Ahmed15, the suit filed before the Civil Court was not maintainable. The
decision of the High Court in C.S.No.694 of 2012 would be considered non-est
in law. Alternatively, it is pleaded that since the petitioners are the actual
14
(2022) 4 SCC 414
15
INSC 2026 90
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owners, and the suit’s prayer is essentially between the rival title claimants and
their family members seeking a collusive decree, such a decree cannot be used
to divest the title.
13.7. It is also further argued that in the earlier round, the same rival title
claimants filed M.P.No.1 of 2010 in W.A.No.1 of 2009 etc. This issue has
already been decided among the parties, where, after considering the arguments
of the Wakf Board as well as the Fakhri Family, the Hon’ble Division Bench
held that the rights of the rival claimants cannot be determined in the dispute
between the other parties, and they must seek their remedy before the
appropriate forum in accordance with the law.
13.8. A review of the case records in C.S.No.694 of 2012 reveals that
P.Navaneedharaj, brother of P.Subramani, filed a suit against the legal heirs of
P.Subramani. P.Navaneedharaj claims that the property belonged to his mother,
Govindammal, and after her death, it devolved equally on Subramani and
himself. However, in 2007, Subramani deceived him into going to the Sub-
Registrar’s Office and made him sign a settlement deed in his favour.
Consequently, although the plaintiff owns a one-and-a-half share of the
property, Subramani and his legal heirs filed a suit amongst themselves,
obtaining a collusive compromise decree. As a result, the suit was filed to
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declare the decree dated 11.03.2010 in C.S.No.185 of 2008 as null and void and
not binding on the plaintiff, and to obtain a preliminary decree for partition and
separate possession. It also requested the appointment of an Advocate
Commissioner to divide the suit property into metes and bounds, along with a
permanent injunction restraining the defendants from interfering with the
plaintiff’s peaceful possession. Defendants 1 to 5 filed a counterclaim seeking
dismissal of the plaintiff’s claim and, consequently, praying for a declaration
that they are the owners of the suit property, which measures 90 grounds and 75
sq. ft. Meanwhile, after taking to consideration that the earlier suit in
C.S.No.185 of 2008 may be a collusive one and there is government interest in
the land, suo motu by an order in A.No.4724/2012, the State Authorities,
including the Assistant Commissioner, ULT, Collector, Chennai, District
Revenue Officer, Chennai – I, and the Tahsildar, Mylapore, were impleaded as
defendants 6 to 9 in the suit. Subsequently, by another order in A.No.2814 of
2013, the Tamil Nadu Wakf Board, represented by its Chief Executive Officer,
th
was suo motu impleaded as the 10 defendant in the suit on 06.10.2016.
13.9. After the suo motu impleadment, the learned Government Advocate
and the learned counsel for the Wakf Board made submissions that the entire
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property is a Wakf property dedicated to pious purposes. There was also an
earlier suit in C.S.No.551 of 2013 between the same parties, except for the
fourth defendant, and completely suppressing the same, the present suit was
filed. After considering the submissions, this Court, speaking through Hon’ble
Justice C.V.Karthikeyan, held that the suit is an act of fraud, collusion, and
abuse of process of law. The suit is a vexatious litigation to deprive the Muslim
community of their right to worship and use of the burial ground. By a judgment
in Appln.No.4968 of 2013, in C.S.No.551 of 2013, the Court held that the Wakf
Tribunal alone has jurisdiction to decide the issue. It is further held that the
parties are attempting to engage in land grabbing with the aid of the Court, and
hence, it constitutes a complete abuse of process, leading to the rejection of the
plaint.
13.10. The Defendants 1 to 5 in the said suit, the rival title claimants, had
filed O.S.A.No.181 of 2018. The Hon’ble Division Bench held that the Trial
Court should not have decided without framing the issues and considering the
documents. The Hon’ble Division Bench noted that the suo motu impleaded
parties had not even filed a written statement, and, as a result, set aside the
above order and remanded the matter for fresh consideration.
13.11. It is observed that both the Wakf Board and the other official
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defendants were set ex parte. It appears that during the pendency of the suit, a
member of the Fakhri family, namely, S.M.Nazifudeen Fakhri, filed
O.A.No.1445 of 2013 to get himself impleaded as a defendant in the suit. This
was opposed by the other parties, and ultimately, by an order dated 13.06.2013,
the impleading application was dismissed for non-prosecution. When the Wakf
Board later filed an application in A.No.5336 of 2024 seeking condonation of a
delay of 438 days to set aside the ex parte order dated 06.01.2023, it was
dismissed by an order dated 17.04.2025. Afterwards, the original plaintiff did
not appear and prosecute the suit claim.
13.12. By a judgment dated 06.01.2022, the Court considered that the
plaintiff did not even enter the witness box, and the suit prayer was dismissed.
This Court, speaking through Hon’ble Justice N.Seshasayee, then proceeded to
consider the counterclaim based on the sale deed of 1915, the settlement deed of
1955, and the compromise decree of 2010, and found the counterclaim to be
valid and decreed the same. It is to be pointed out that the earlier decree
between the inter parties in C.S.No.551 of 2013 was not placed before the Court
at the time of the final hearing. No oral submissions were made on behalf of the
Wakf Board. It is clear that the declaration is made, the inter-se lis is only
between the defendants 1 to 5 and the plaintiff alone, and the counterclaim is
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made and decided only against the plaintiff. Clearly, no lis or claim was made
against the Wakf or Wakf Board in the said suit. A plain reading of the
provisions of the Code of Civil Procedure, it can be seen that the counterclaim
can be made only against the plaintiff and it will be proceeded as if it is a cross
suit even if the plaintiff abandons his claim, which happened in this case.
Neither the plaintiff made any claim with reference to the wakf nor can there be
a counterclaim between the co-defendants. Useful reference in this regard can
be made to paragraph 24 of the judgment of the Hon’ble Supreme Court of India
in Satyender and others vs. Saroj and others16.
13.13. The declaration is, at best, only binding the plaintiff in the said
suit, P.Navaneedharaj, and cannot bind the Wakf Board. In any case, the Wakf
Board is merely the supervising authority with certain powers under the Act and
is not the owner of the property. Without the Wakf represented by its
Muthawallis, no declaration can be claimed against the Wakf. Therefore, the
alleged decree by the rival claimants cannot bind the other parties in the present
litigation in any manner. In fact, the inter se rights of the rival title claimants,
vis-a-vis the other parties to the present litigation, have been decided in
M.P.No.1 of 2010 in W.A.No.1 of 2009, where it was held that the petitioner
cannot even be made a party, and they must pursue their remedy before the
16
(2022) 17 SCC 154
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competent civil forum. Consequently, once again, in the next round of writ
petitions, the petitioner cannot approach this Court under Article 226 of the
Constitution of India to establish its rights.
13.14. The validity or invalidity of the impugned order, as well as the
other questions to be decided in the writ petition, will not be in any way affected
by the claim of the rival title claimants or the decree passed in counter claim in
C.S.No.694 of 2012. It is for the rival title claimants to pursue the remedies
available under law as the questions involved as to how far the claim based on
the earlier title deeds by them is valid vis-a-vis the proclamation of the property
as a wakf property, if the property still belongs to them then at what point of
time, the can claim title or possession, whether the suits filed by them are
vitiated by fraud and collusion are the larger questions that can be decided only
by the appropriate civil forum. It must also be noted that even the Assistant
Controller while deterring the Estate Duty, payable under the under the Estate
Duty Act, 1963, records of conducting an infield inspection and finds that
vegetables were cultivated in the land in question by the Fakhri Family and the
income was defrayed for the maintenance of mosque and for their personal
rd rd
maintenance in the ratio of 1/3 and 2/3 . Therefore, I answer the question that
the rival title claimants’ claim that the have a decree in the counter claim in
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C.S.No.694 of 2012 will not have any bearing on the decision to be made with
reference to the inter-se claim between the other parties, and the rival title
claimants’ right to approach the appropriate Civil Court or Wakf Tribunal is kept
open.
Questions Nos.2 to 4:
14. The factual background and the various findings on the issues in the
earlier proceedings were narrated in detail supra. With reference to whether the
property is dedicated and if so what purposes and thus the nature of wakf are all
decided by the judgment in A.S.No.21 of 1964. The operative portion of the
judgment is quoted in para 4.9 supra. The various findings are summarised in
paragraphs 4.5 to 4.9 supra. As a matter of fact, the Appellate Court itself
summed up its findings in para 30 which is reproduced hereunder:
”30. To sum up: The evidence clearly establishes that the suit
property had been dedicated concurrently by the original founder,
Shah Abdul Qadir, for the maintenance of the mosque and for the
maintenance of the male descendants of his family. The respondents
and his ancestors had been in charge of the property only as
Muthawali. The net result is that the respondent has to maintain the
mosque from out of the income of the suit property and is entitled to
use the balance of the income for the maintenance of himself and the
members of his family. The suit property will be Wakf-Alal-Aulad to
the extent to which it is dedicated for the maintenance of the mosque
in the suit property.”Thus, the entire property has been dedicated. It is a composite dedication for
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two purposes: (a) for the maintenance of the mosque; (b) for the maintenance ofmale descendants of the family.
14.1. ‘Wakf-Alal-Aulad’ is the concept that arises from the unique
position in Islamic Law that providing for ones family amounts to double
charity as providing to the members and maintaining the kinship both are also
considered as charitable purposes. The following are the relevant Quranic and
Hadith texts :
Core Quranic texts:-
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W.P.Nos.16776 & 21288 of 202114.2 . Section 3 (l) of the Wakf Act, 1954, defined the Wakf as inclusive
of Wakf-Alal-Aulad also and the same is reproduced hereunder for ready
reference :
”(l) “wakf” means the permanent dedication by a person
professing Islam of any movable or immovable property for any
purpose recognised by the Muslim law as pious, religious or
charitable and includes—
(i) a wakf by user;
(ii) mashrut-ul-khidmat; and
(iii) a wakf-alal-aulad to the extent to which the property is
dedicated for any purpose recognised by Muslim law as pious,
religious or charitable; and “wakif” means any person making such
dedication;” (Emphasis supplied)
14.3. Section 3(r) of the Wakf Act, 1995 also includes Wakf-Alal-Auladwith the same clause except to add that when the line of succession fails, the
money shall be spent on education, development, welfare and such other
purposes as recognised by Muslim Law. The question as to what constitutes a
dedication as ‘Wakf-Alal-Aulad’ and its nature has been considered in detail in
M.S.Muhammad Yahya (cited supra). Useful reference can be made to
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paragraphs 17 to 34 of the said judgment. It should be noted that this Court,speaking through Hon’ble Mr.Justice V.Lakshmi Narayanan, considered the
issue by taking into account the commentaries on Muhammadan Law by
Hon’ble Mr.Justice Ameer Ali and taking into account the judgments on the
point, more specifically, the law laid down by this Court in Tamil Nadu Wakf
Board vs. M.Ibrahim Musuee17. It was held that there can be two kinds of
Wakf-Alal-Aulad – (a) Wakf-Alal-Aulad Simpliciter and (b) Wakf-Alal-Aulad
Composite. Simpliciter is the case in which the entire income of the property is
dedicated by the wakif for the benefit of himself, his family, and descendants
and on the failure of the line of succession to the poor or other purposes. If only
a portion of the income is given for the benefit of the wakif and his family and
the remaining portion is reserved for other pious, religious, or charitable
purposes, then it is Wakf-Alal-Aulad Composite. After considering the other
judgments on the point, this Court ultimately held that giving property to one’s
own family is itself an important aspect of Islam with respect to the law of
charity. Ultimately, it was concluded that both Wakf-Alal-Aulad Simpliciter as
well as Wakf-Alal-Aulad Composite answer the Shariat.
14.4. A doubt is attempted to be raised by pressing the last sentence in
paragraph 30 of the judgment in A.S.No.21 of 1964 as well as the operative
portion (both extracted supra) by relying on the phrase “Wakf-Alal-Aulad to the
17
AIR 1979 Mad 231
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extent it is dedicated for the maintenance of the mosque”. The division of 1/3 or
2/3 was not even an issue in the Suit. No demarcation was even contemplated at
that time. It should be read in the context where the trial court held that only the
mosque and the pathway alone are wakf by user and the rest is private property.
While allowing the appeal so as to include the entire property as dedicated, the
Appellate Court held that to the extent it is decided for the maintenance of the
mosque, the entire property is Wakf-Alal-Aulad. It never held that maintenance
of the male descendants is not a pious or charitable purpose, and to that extent,
the property is not a Wakf-Alal-Aulad, and the plea of the Fakhri Family -II and
the subsequent purchaser is to infer that such a declaration cannot be
countenanced. On the other hand, the finding is that it is a composite dedication
and thus, reading the judgment as a whole, I hold that the Judgment in
A.S.No.21 of 1964 declares the entire property as Wakf-Alal-Aulad.
14.5. The second limb to be considered is to whether that status got
ruptured and the properties were ordered to be divided and partitioned on
account of the judgment of this Court in W.P.No.6846 of 1991. Admittedly, the
judgment has become final and will be binding inter parties. The case was filed
by the Wakf Board’s action in assuming direct management. This Court first
considered that the judgment in A.S.No.21 of 1964 and the findings have
become final. The Court then considered the views that were prevalent with
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reference to Wakf-Alal-Aulad. It chose to follow the view expressed that Wakf-
Alal-Aulad is in the nature of a private Wakf and if it only release to pious or
charitable purposes recognised by Islam, it is included in the definition of Wakf
under the Wakf Act, 1954. More specifically, it considered that the Central
Government proposed an amended to have the clause in Section 3(l)(iii) “a
wakf-alal-aulad to the extent to which the property is dedicated for any purpose
recognised by Muslim law as pious, religious or charitable” susbsituted simply
as ‘wakf-alal-aulad’ but however the amendment was not brought to force.
Therefore, the learned Judge considered the view that only insofar as the pious
and charitable purposes alone is dealt with by the Act and thus the Wakf Boards
jurisdiction would be only to that extent covered by the Act. The learned Judge
found that the view taken in V.M.Mohin vs. Wakf Board, Madras18 as affirmed
in Ebrahim Musuee (Cited supra) appears to be the correct view. The learned
Judge further noted that even though 30 years have passed, no further steps have
been taken in that direction to apportion the property. Then it took note of the
1/3 and 2/3 consideration given in the Estate Duty Judgements and it observed
thus in paragraph 10:
”Further from the above rulings of this court, it is clear that in
such cases the matter has to be remitted. I feel that, upon peculiar
facts and circumstances of the case, the Wakf Board itself shall
determine the extent to which the property has been dedicated for any
purpose recognized by Muslim law as pious, religious, or charitable,
18
AIR 1968 Mad 243
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viz., for the maintenance of the mosque and for the purpose of
maintenance of the male descendants of the original Wakif.”
(Emphasis
supplied)14.6. In paragraph 11 of the judgment, it was further found that the order
of the Wakf Board that was under challenge was passed without complying with
the principles of natural justice, and the matter was remitted to the Wakf Board
with the directions contained in paragraph 12 of the said judgment. More
specifically, the Court considered that for a period of 30 years, no development
had taken place and nothing had been generated for the upkeep of the mosque or
for the maintenance of family members, and it was deemed pragmatic to
apportion the land going forward. The directions are extracted supra in
Paragraph 4.15 supra. This judgment was delivered on 15.12.1995.
th
14.7. 16 day from the judgment, the Wakf Act, 1995 came into force
with effect from 01.01.1996. The legislature seems to have taken into account
the original clause relating to Wakf-Alal-Aulad and the proposed amendment to
keep it simple as wakf-alal-aulad and finally, the definition of ‘wakf’ under
Section 3 (r) stands as follows:
”(r) “waqf” means the permanent dedication by any person, of
any movable or immovable property for any purpose recognised by
the Muslim law as pious, religious or charitable and includes—
(i) a waqf by user but such waqf shall not cease to be a waqf
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by reason only of the user having ceased irrespective of the period of
such cesser;
(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any
other name entered in a revenue record;
(iii) “grants”, including mashrat-ul-khidmat for any purpose
recognised by the Muslim law as pious, religious or charitable; and
(iv) A waqf-alal-aulad is to the extent that the property is
dedicated for any purpose recognised by Muslim law as pious,
religious, or charitable. When the line of succession fails, the income
of the waqf shall be spent on education, development, welfare, and
other purposes recognised by Muslim law. “Waqif” means any person
making such dedication.” (Emphasis supplied)14.8. Thus, from the insertion of the clause relating to the line of
succession, it is clear that the legislature was conscious of the concept and that
if the line of succession fails, the income of the wakf should be used for
education, development, welfare, and other purposes recognised by Muslim
Law. This indicates that the legislature considered maintaining one’s family a
pious duty under Islam, and its intention to include this within the scope of the
act is evident from the provisions detailing how the income should be spent if
the line of succession fails.
14.9. In this regard, it is evident that by the time the Masjid Committee
filed an intra-court appeal, the amendment had already taken effect. When the
appeal was not entertained, the Wakf Board neither clarified the issue with the
Court nor considered the provisions of the new act. However, it proceeded to
implement the judgment in W.P.No.6846 of 1991. Thus, a reading of the
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judgment in W.P.No.6846 of 1991 shows that the findings effectively partially
altered or affected the nature of the property’s dedication, as it held that Wakf-
Alal-Aulad, only for mosque maintenance purposes, falls within the definition
of ‘wakf’ under the Wakf Act, 1954, and that the Wakf Board’s jurisdiction is
limited to this. Therefore, it directed that the demarcation of the property be
excluded from the Wakf Board’s purview.
14.10. When the Wakf Board proceeded to implement the judgment, the
resolutions were also passed with the consensual views of the Fakhri Family. It
rd rd
is considered that the 1/3 and 2/3 were positively directed by the Court, but
that is not the case. Secondly, even as per the Court’s directions, it had to
demarcate the portions of the Wakf-Alal-Aulad within its jurisdiction. However,
it went on to permanently divide the property, thereby creating a ‘public wakf’
and releasing the rest for the enjoyment of Fakhri Family. Thus, the resolutions
were not strictly in accordance with the judgment.
14.11. The original resolution was passed on 19.04.1998, as detailed in
Paragraphs 4.16 and 4.17 above. Apart from the mosque, pathway, and burial
ground area, 30 grounds of the remaining vacant land were designated as a
public wakf, and 60 grounds were ordered to be released for the enjoyment of
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the family. The resolution included instructions to the Chief Executive Officer
regarding its implementation. On 22.01.2003, a resolution was passed again,
stating that the burial ground was to be used only for burying family members.
The Fakri Family members agreed, and an agreement for handing over and
taking over was signed on 31.03.2003. This agreement was again signed on a
stamped document on 25.04.2003. Plan Annexure -III was prepared. Boundary
stones were laid on the ground. Additionally, the Chief Executive Officer
published the decision in the gazette on 08.05.2003, notifying the
implementation of the resolutions, taking possession of the mosque and its
properties, and releasing the properties for their enjoyment. There was also a
mutation of the revenue records, subdividing the extents according to the plan,
and the patta for the released portions was transferred into the names of the
Fakhri Family members.
14.12. Precisely, by labelling these actions as illegal, the impugned
government order, issued after 17 years, on 19.04.2021, undid them. Before
analysing the scope of power and technical objections, the essential principles
of violating the core tenets of Islamic Law and fairness must be examined.
14.13. The submission of the learned Senior Counsel for the Masjid
Committee is that ‘once a wakf is always a wakf. It vests in the Almighty, and
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no one can divest it’. There can be no contest to this proposition, and the
judgments are also cited supra. But in the instant case, if it has to be accepted,
the Mosque, houz, precincts, and pathway had to revert as Wakf-Alal-Aulad.
Whereas, the decision of the wakf board is that the same be made a ‘public
wakf’. That is a step higher than the initial dedication; Afterwards, by entering
into an agreement of handing over and taking over, the Fakhri Family members
have also accepted and acted upon it. Therefore, the said principle need not be
applied to the instant case as far as the public wakf is concerned. The dedication
continues, and it is of a higher order. Though the Fakhri Family can also claim
to be part of the management, they can no longer exercise any other special
right. It becomes the absolute entitlement of the Muslim community. No income
henceforth from the said property can be claimed by them, and all the income
generated shall only be used for the purposes of the mosque. In the current
scenario, where the property is in the heart of the city, the mosque is
comfortably placed on 5 grounds or thereabouts. The 30 grounds earmarked can
be developed, and the income will be adequate and appropriate for the
maintenance of the mosque. More specifically, the Wakf Board had decided to
develop the property as a Working Women’s Hostel with a focus on Muslim
women. The same leads to the ideal situation for the devout Muslim population.
Now, with reference to the remaining two-thirds, I do not see any public interest
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or the interest of the devotee Muslims in tagging the same along.
rd
14.14. The interest of the masjid committee in the 2/3 meant for the
family defies logic and common sense. Furthermore, 30 grounds belonging to
the public wakf can be developed by crowdfunding, state funding and wakf
board funding, etc. By tagging the baggage meant for the family’s welfare, all
this cannot be done. Thus, the plea of the masjid committee and other private
individuals in this regard cannot be entertained. The wakf board’s supervision
and powers can concentrate on the maintenance and development of the mosque
rather than the maintenance of the male descendants of the family. The re-
tagging will only serve the interest of joint developers, encroachers, etc., and
will be against the public/religious purpose. With reference to the nature of
property demarcated and apportioned for the maintenance of the family
members, the reasons are given separately hereinafter.
14.15 The question is also to be considered as to whether the exercise
results in any unfair advantage to the Fakhri Family members. It must be
recognised that there is no written dedication in this case. Admittedly, when the
pious individual came from Aurangabad and settled in Chennai, this property
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was granted by the Nawab. At that time, the mosque was established, and
prayers were conducted. The rest of the land was cultivated, and the income was
used to cover both personal expenses and mosque needs. Therefore, the
dedication is by the user. Because, in the 1960s, the excise duty component was
higher considering the income from vegetable cultivation, Ex.B2, the
Assessment Order, ultimately became the decisive evidence for determining that
the property is a wakf by user and not otherwise. Similarly, the calculation of
1/3 and 2/3 became standard when determining the extent to which income is
allocated to both purposes. Thus, everything started and concluded with the
declarations, decisions, and findings in those revenue exercises. The same is
fair. Because the property value has now increased, it cannot be claimed as an
unfair advantage. I do not find any reason why the demarcation or
apportionment should be obliterated and the entire property unified again.
14.16. More importantly, the Masjid Committee and others once again
attempted the above-mentioned exercise by approaching the Wakf Tribunal in
O.A.No.3 of 2004, the Tribunal remitted the matter back to the Wakf Board.
When the order was challenged in W.P.Nos.17624 of 2008, etc., the learned
Judge dismissed it on the ground that the opportunity had not been given to the
Masjid Committee. The Civil Revision Petition and intra-court appeals were all
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heard by the Hon’ble Division Bench, which, by the judgment dated
20.12.2013, held as follows :
”17. … The rights of the parties having been determined by the
order of this court in WP No. 15144 of 1991, confirmed in WA No.
154 of 1997, the third respondent cannot be permitted to re-agitate the
issue, particularly when the demarcation has been notified in the
official gazette on 27/08/2003 and third party interests are created in
the two-thirds property allotted to the male descendants of the Wakif.”14.17. The Order of the Hon’ble Division Bench was upheld by the
Hon’ble Supreme Court of India through an Order dated 08.07.2015 in the
Special Leave Petition filed by the Wakf Board, including a prayer to condone
the delay in Special Leave to Appeal (C) No.10837 of 2015. The Hon’ble
Supreme Court stated, “We do not find any legal and valid ground for
interference. The Special Leave Petition is dismissed.” Subsequently, the Masjid
Committee filed separate S.L.P.(Civil)Nos.35138-35142 of 2014, which were
dismissed by order dated 23.11.2017. Therefore, once everything has reached
finality, matters cannot be reopened over time by pointing out errors. When the
resolutions were challenged and had obtained finality through inter-party
litigation, ultimately, the Order of the Government would amount to undoing the
judgments of this Court and the Hon’ble Supreme Court of India, as between
the parties, and as such, cannot be permitted.
14.18. The judgment of the Civil Court in A.S.No.21 of 1964 inter-
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parties had attained finality, and the decision is that the entire property is
dedicated for the composite purpose. The judgment in W.P.No.6846 of 1994
inter-parties had attained finality and the decision is by taking into account the
then prevalent legal position as to private wakf and public wakf and the nature
of wakf alal aulad being considered as a wakf combining within the definition
of the Wakf Act, 1954 and control and supervision of the Wakf Board, ordered
apportionment and demarcation by splitting the property for both the purposes
separately. The judgment of the Division Bench in C.R.P.No.4186 of 2008 and
W.A.No.1of 2009 etc., inter-parties had attained finality and the decision is that
the matter of apportionment and demarcation cannot be reagitated by Masjid
Committee and others. Thus, the reasons to contra contained in the impugned
government order amount to overriding the judgement inter-parties. Raising the
same grounds by the Masjid Committee or Wakf Board in the instant case
cannot be permitted on the principles of Res Judicata. Res judicata is based on
public policy and the finality of the decisions on the issues. Repeatedly, the
matters cannot be reargued ad infinitum.
14.19. Finally, the entire exercise is carried out pursuant to the reference
made by the Chief Executive Officer under Section 26 of the Wakf Act, 1995.
According to this, if any resolution is passed and has not yet been implemented,
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and if the grounds mentioned in Section 26(a) to (d) exist, the Chief Executive
Officer can request the Wakf Board to reconsider. If the Board reaffirms the
resolution, it can be referred to the Government, and the State Government’s
decision will be final. In this case, it must be noted that, based on the
resolutions, the Agreement of Handing Over and Taking Over was entered into,
boundary stones were laid, demarcation was completed, and the Chief
Executive Officer published a gazette notification. Therefore, the resolution was
fully carried out. There is no question now of referring the matter for
reconsideration.
14.20 It is also important to note that the Wakf Board took a
commendable decision on 25.09.2003 to develop the 30 grounds of the public
wakf by establishing a working women’s hostel, which was also announced
through a public advertisement on 11.11.2003. The counter affidavit filed by the
Wakf Board on 18.02.2020 in W.P.No.22577 of 2019 covers most of these
points and, in Paragraph 10, admits that the Wakf Board applied for and
obtained a patta on 09.09.2003 for the demarcated portion of the public wakf.
Therefore, it is too late to argue that the resolutions were not implemented and
that the situation remains fluid. Consequently, the very foundation for
exercising power is lacking, and the impugned Government Orders cannot be
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sustained.
14.21 Regarding the 2/3 of the property apportioned for the enjoyment of
Fakhri Family, it must be seen that a careful reading of the judgment in the
Appeal Suit No.21 of 1964 or the order in W.P.No. 6846 of 1994, the Courts
have only considered the composite nature of the wakf alal aulad and
considered the legal position obtaining as on that date before the coming into
force of the Wakf Act, 1995, held that the extent as decided to the mosque
purposes shall be wakf alal aulad within the definition of then Section 3(iii) of
the Act of 1954 so as to bring it within the supervision of the Wakf Board.
Nowhere do the judgments declare that the other purpose, that is, maintaining
the male descendants, cannot form the basis for creating a wakf alal aulad. The
rd
judgments consciously refrained from declaring the 2/3 as private property.
The resolution of the Wakf Board use the phrase ‘the land is released for the
enjoyment” of Fakhri Family. The Hon’ble Division Bench, in C.R.P.No.4186
of 2008 and W.A.No.1of 2009, did took note of the alienation. But the issue
whether the same was valid, whether the 2/3 would be a wakf alal aulad or
private property was not expressly decided.
14.22. Pertinently, by the Wakf (Amendment) Act, 2025, a new provision
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in Section 3A is inserted, and the same is reproduced hereunder :
”3A. (1) No person shall create a waqf unless he is the lawful
owner of the property and competent to transfer or dedicate such
property.
(2) The creation of a waqf-alal-aulad shall not result in denial
of inheritance rights of heirs, including women heirs, of the waqif or
any other rights of persons with lawful claims.”
(Emphasis supplied)While the constitutional validity is pending before the Hon’ble Supreme Court
of India in W.P.(Civil)No.276 of 2025, it can be observed that, although some
provisions are stayed by the interim order dated 15.09.2025, the above provision
is not stayed. It is submitted across the bar that there are female heirs also.
Arguments may be made regarding the applicability of the said provision. It
must be noted that, except for the definition as a Wakf under the Wakf Act,
1995 and the dedication, the non-alienability would otherwise be affected by the
rule against perpetuity. In this case, the dedication is solely for the maintenance
of male members, directly denying the inheritance rights of women heirs. Even
the Quranic texts and Hadiths, which emphasise maintaining loved ones as
pious, do not authorise discrimination against female members. Before this
Court, it is the contention of the Fakhri Family -I that the property continues to
be a wakf alal aulad. It is the contention of the Fakhri Family -II and the
subsequent purchasers that the property is private property. The female heirs are
not parties in these writ petitions, which only challenge the impugned
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Government Order. In view of the Wakf Act, 1995, even after demarcation and
allotment, the Wakf Board can still claim its supervision.
14.23. The matter requires detailed consideration, and it will be between
the Family Members and the Wakf Board; no third party can have any
legitimate interest in it. The property will revert to other pious purposes, such as
education, only if there are no heirs of the Fakhri Family, which is not the case.
Therefore, it is a pure question to be decided between the members of the Fakhri
Family, including female heirs, and the Wakf Board. It involves a detailed
consideration of facts and law after recording evidence, and it will be open for
the members of the Fakhri Family to approach the Wakf Tribunal in this regard
for determining the nature of the property by filing an appropriate petition as per
Chapter VIII of the Wakf Act, 1995. It is for the Tribunal to consider and decide
accordingly.
14.24. The public wakf property is in the centre of the city and continues
to be an eyesore to encroachers and busybodies due to the prolonged litigation
pending. Because of this, this Court had to examine all the details and render its
findings regarding all the questions argued. Further prolongation of the issue
will cause irreparable loss. Additionally, considering the welfare of the public
wakf, further directions need to be issued. The Wakf Board’s decision to
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establish a working women’s hostel will greatly benefit the Muslim population
throughout Tamil Nadu. In many cases, parents are finding it difficult to secure
suitable, safe, and hygienic accommodation for girl students pursuing college
and higher education, as well as for those who are now employed. Chennai,
being the capital city, also attracts a large number of women employees.
14.25. Therefore, if a safe, hygienic, and state-of-the-art women’s hostel
is built and Muslim women are accommodated at affordable charges, it can be a
win-win situation. Adequate income can also be generated. At the same time,
the dual purpose of education and empowerment of Muslim women is fulfilled.
Their personal needs, such as having a prayer hall, can also be addressed. If a
multi-storied structure is erected on the 30 grounds within permissible limits,
even at a moderate charge, it will generate good income for the mosque to meet
its needs and purposes. Therefore, the decision of the Wakf Board dated
25.09.2003 is upheld with regard to establishing the hostel.
14.26. However, the only difficulty lies in the decision to proceed through
a joint venture. The same is not mandatory. Operations and maintenance can be
managed using charges collected from inmates. If there is insufficient
occupancy among Muslim women, certain floors can be generally opened to girl
students and working women, and, as and when demand from Muslim women
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increases, a decision can be made periodically. The main challenge is the high
cost of construction. To address this, the Wakf Board can engage an appropriate
architect or engineer and prepare a plan/costs estimate. By adding a 30%
contingency for price increases, a budget can be arrived at. The Wakf Board (i)
if it has funds at its disposal that can be defrayed for this purpose, can cover the
costs, and allocate them accordingly; (ii) seek grants from the Government
under Minority Welfare Schemes; (iii) if neither option is feasible, a separate
bank account can be opened, and an advertisement for donations/crowd funding
can be issued. Every Jamath, individual Muslim, and Philanthropist throughout
the State if contribute generously, it can meet the construction costs. The budget
can be secured through a combination of all three sources also.
The Result:
15. In the result, the Writ Petitions are partly allowed on the following
terms :
(I) The impugned Government Order in G.O.(Ms)No.27, Backward
Classes, Most Backward Classes and Minorities Welfare (S2) Department, dated
19.04.2021 passed by the first respondent shall stand quashed;
(II) The demarcations and subdivisions of the property as per Annexure
-III shall stand, and the constitution of a public wakf is upheld.
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(III) The petitioners or their family members shall be considered any
other devotee regarding the public wakf, though preference shall be given to
being part of the managing committee.
(IV) The Wakf Board shall be in the direct management of the public
wakf until the development of the 30 grounds vacant land is complete. To assist
with this, it may appoint an ad hoc committee composed of mosque devotees,
members of the Fakhri Family and other field experts.
(V) The Wakf Board shall take the steps mentioned above to prepare a
plan and estimate for developing the 30 grounds of land into a Women’s Hostel,
along with any other facilities considered appropriate. It shall raise funds in the
manner described above and complete the process of securing the budget
amount within 6 months from the date of receipt of the web copy of the Order.
Within 60 days of securing the amount, it can select a contractor through a
tender process, and after due plan approval, construction shall be started within
one year from the date of this Order and completed within two years from the
date of this order.
(VI) The rights of the respondents 5 to 8 to approach the Civil
Court/Tribunal if they choose to, are kept open.
(VII) It will be open for the Writ Petitioners or any other member of the
Fakhri Family, including female heirs, to approach the Wakf Tribunal regarding
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the nature of the 2/3 apportioned property, and the Tribunal shall decide the
matter accordingly. Depending on the decision, further decisions for the future
can be made.
(VIII) For filing incorrect copies of the crucial judgment in A.S.No.21 of
1964 with different wordings of the important operative portion paragraph 32
not reflecting the exact original of the judgment, costs are imposed as follows:-
(a) Rs.10,000/- on the petitioners in W.P.No.16776 of 2021; and (b)
Rs.10,000/- on the petitioner in W.P.No.21288 of 2021. As the learned Principal
City Civil Judge, Chennai, and the staff of the City Civil Court, Chennai,
exerted effort to furnish a correct and exact version, the cost shall be paid to the
City Civil Court-District Mediation Centre, Chennai.
(IX) All Miscellaneous Petitions stand closed.
07.04.2026
Neutral Citation Case : Yes
bkn / smn2
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Annexure – 1
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Annexure – 2
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Annexure – 3
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W.P.Nos.16776 & 21288 of 2021
To:
1. The Principal Secretary,
Government of Tamil Nadu,
Department of Backward Classes,
Most Backward Classes and Minorities Welfare Department,
St. George Fort, Secretariat,
Chennai.
2. The Chief Executive Officer,
Tamil Nadu Wakf Board,
1, Jaffar Syrang Street,
Vallalseethakathi Nagar,
Chennai – 600 001.
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W.P.Nos.16776 & 21288 of 2021
D.BHARATHA CHAKRAVARTHY, J.
bkn/smn2
Pre-delivery common order in
W.P.Nos.16776 & 21288 of 2021
07.04.2026
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