I i IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA CA 1 WAKFS 1 01/2017. I j

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1 ,! j j! { l j N THE COURT OF APPEAL OF THE DEMOCRATC SOCALST REPUBLC OF SR LANKA CA WAKFS 0/207 Wakfs Trbunal No. WT/242/207 Wakfs Board Case No. WB/727/206 n the matter of an appeal under and n terms of Secton 55A of the Muslm Mosque and Chartable Trusts or Wakfs Act No. 5 of Abdul Cader Mohamed Nawas 2. Mohamed Rauf Ahamed Rfa 3. Abdul Hassan Mohamed Jabr 4. Mohamed Barry Mohamed Saneet 5. Mohamed Pakeer Mohamed Fasly 6. Abdul Jabbar Mohamed Fahry 7. Mohamed Fassy Mohamed Faroos The Trustees of AL-RAHMAN Jumma Mosque, 38, Zava Lane, Mhagoda, Beruwala. PETTONER-APPELLANT - APPELLANTS VS. Ash-shek Nagoor Ptcha Muhammad Abu Bakr Sddeeque (Madan), We-Uda, Paragahadenya. The Sprtual leader of the THAREEKA called and known as JAEATHU ANSARS SUNNATHL MUHAMMADYYA AND JAMATH ANSARS SUNNATHL MUHAMMADYA (JASM) RESPONDENT -RESPONDENT RESPONDENT

2 ! l, 2 BEFORE M. M. A. GAFFOOR, J. COUNSEL ARGUED ON WRTTEN SUBMSSONS TENDERED ON M. Yoosuf Nazar for the Pettoner- Appellant Appellants U Abdul Najeem for the Respondent-Respondent Respondent (by the Respondent) (by the Appellants) {, l DECDED ON ***** M. M. A. GAFFOOR, J. The Pettoner-Appellant-Appellants (herenafter referred to as the "Appellants") n ths case fled ths appeal aganst the judgment delvered on by the Wakfs Trbunal, affrmng the order made by the Wakfs Board of Sr Lanka dated and dsmssng the sad Appeal. n ths case, the followng facts are noteworthy:- The Respondent-Respondent-Respondent (herenafter referred to as the "Respondent") and the Appellants had entered n to a Deed of Trust bearng No. 288 dated , for the purpose of and, nter ala to establsh, a) A masjd called "A-Rahman Jummah Mosque"; b) An Arabc College named A-Rahman Arabc College; c) Uduman Medcal Centre and d) A-Rahman bural ground.

3 3 The other purposes for whch the trust s created are descrbed n Paragraph 2 of the sad Deed of Trust (marked as "X4"). Upon the executon of ths Deed of Trust No. 288, the Respondent (the Settlor) had been accepted by the Appellants as ther relgous Leader and n turn the Respondent nomnated the Appellants as trustees of A-Rahman Jummah Mosque. On the recommendaton of the Settlor Respondent, the Wakfs Board had apponted the Appellants as trustees on two consecutve terms; the last term expred on Thereafter, the Appellants functoned as person-n-charge, as no trustees were apponted for the sad Mosque. The Respondent stated that he was compelled to delay hs new nomnaton of Trustees to the Wakfs Board untl he was able to resolve some new ssues (vde, wrtten Submsson of the Respondent, para 9 (a) to (f)) created by the above sad exstng persons-n-charge of the sad mosque. He further submtted that due to the crcumstances enumerated above, the Respondent was forced to take dscplnary acton aganst the trustees of the A-Rahman Trust by usng hs power vested hm under the sad Trust Deed No Therefore, the Respondent had amended the Deed of Trust No. 288 by executng another Deed of trust No dated th Aprl 206 attested by U. A. Mawjooth, Notary Publc (marked as "X"). By ths amended Deed of Trust No the Respondent removed all 3 persons prevously apponted as trustees of A-Rahman Trust under the Deed of Trust No. 288 and apponted 3 new persons n place of the removed trustees as new trustees of the Trust. Subsequent to executng the new Deed of Trust the Respondent had nformed the Wakfs Board of Sr Lanka and the Drector, Department of Muslm Relgous and Cultural Affars regardng the changes and he also nomnated and recommended to the Wakf Board all 3 newly apponted trustees of A-Rahman Trust to appont as new trustees of the sad mosque n terms of the provsons contaned n the trust nstruments referred to above.

4 4 Whle the Settlor's above sad nomnaton of 3 new trustees of the Mosque was under consderaton of the Wakf Board, the Appellants fled an applcaton to object the new 3 persons beng apponted as trustees of the sad mosque (vde, 54 of the appeal bref). n the Wakfs Board, the Respondent's Counsel n hs oral submssons nter ala objected to the Appellants' applcaton beng consdered by the Wakfs Board due to patent lack of jursdcton to grant the substantal relefs the Appellants were seekng from the Wakfs Board. Counsel for the Appellants also made hs oral submsson n reply to prelmnary objecton rased by the Counsel for the Respondent. After hearng of both partes the Wakf Board made an order on and dsmssed the Appellant's applcaton. The Appellants thereafter fled an appeal dated under and n terms of Secton 9H of the Muslm Mosques and Chartable Trusts or Wakfs Act, No 5 of 965 (Sometmes referred to as the "Wakfs Act") n the Wakf Trbunal, aganst the order made by the Wakfs Board seekng nter ala some substantve relefs as contaned n ther applcaton. (Vde, page 80 of the Appeal bref).after hearng the oral and wrtten submssons made by both partes, the Wakfs Trbunal also dsmssed the Appellants' appeal. n the Wakf Trbunal the Appellants sought the followng relefs: a) To stay the order ssued by the Wakfs Board on ; b) To nullfy the new deed (Deed of Trust) No dated c) To drect the Drector of Muslm Relgous and Cultural Affars not to appont any persons as trustees untl the fnal determnaton of the case; d) To hold an nqury n ths matter and ssue a decree to amend the trust deed n order to curb the powers vested to the Respondent n Secton (6) n the Trust Deed No. 288 e) To make order to take necessary steps to appont Appellants as the Trustees to the A-Rahman Jummah Mosque.

5 ,. 5 However, after my careful perusal of the documents contaned n the bref, t s crystal clear that the Wakfs Board of Sr Lanka had correctly dsmssed the applcaton (ncludng above mentoned relefs) fled by the Appellants for the reason that t would be ultra vres for the Board to entertan the sad applcaton, snce the Pettoners sought relef under Secton 9E () of the Wakf Act whch s specfy the general powers of the Wakfs Trbunal. The learned Charman of the Trbunal also held that the Appellants were on a msconcepton of law, had gone before the Wakfs Board wth ther petton seek the relefs prayed for n ther petton. Because, the Wakfs Board has no jursdcton to entertan ther petton as the matter stated n Secton 9E are clearly fallng under the General Powers of the Trbunal. "Muslm Chartable Trust s a matter whch comes under the jursdcton of the Wakfs Trbunal and not wthn the Wakfs Board. Any dspute arsng over ths matter must be referred to the Trbunal. n ths case, the relef asked for to amend clause (6) n the Deed of Trust No. 288 and revoke the new Deed of trust No are matters relatng to trust whch fall wthn the jursdcton of the Trbunal.... " (Page 6 - Judgment of the Wakfs Trbunal). Therefore, am of the vew that the Wakfs Trbunal has correctly evaluated the ssue. n ths case, the Appellant's another submsson was (n the Wakfs Board and the Trbunal) that the sad Deed of Trust No should be nullfed. The same submsson s further demarcated n ther wrtten submsson (n ths Court) as follows:- "... the Respondent only actvatng after 6 years to nomnate the trustees wth malcous ntenton to nsert persons n to trust whom beleved n Respondent relgous deology and beleves. These matters were placed n the Wakfs Board pettons but Wakf Board faled to take nto consderaton." (para 6 ())

6 6 Before dealng ths submsson/ssue made by the Appellants, the followng factual substances are mportant:-. The Settlor-Respondent and the Appellants had agreed that the provsons of the Wakfs Act as amended thereafter shall and wll apply to the above sad trust. 2. t s also admtted by the partes that though ths Trust has been created by Deed No. 288, t s not recognzed up to now. Only the A-Rahman Jummah Mosque s regstered and the trustees are apponted only for the mosque and not for the trust. Therefore, the trust s not a matter for consderaton n ths case. Under clause (6) n the Deed of Trust No. 288, the Settlor (ts means that a person who creates a trust-legal arrangement to manage the assets of someone else-and puts money, property, etc. nto t, even so, the Deed No. 288 ndcates as "Settler") as stated above, has the powers to:- a) Select or nomnate the trustee or trustees to be apponted by the Wakfs Board of Sr Lanka n terms of Secton 4()(A) of the Muslm Mosques and Chartable Trusts or Wakfs Act; b) Take dscplnary acton aganst a Trustee or Trustees; c) Fll the vacancy and no decson of the Settlor shall be nvaldated by reason only of such decson beng made pendng the fllng of any vacancy n the offce of Trustees; d) The decson of Fatwa of the Settlor shall be fnal and conclusve on all dsputes or deologcal controverses and shall not be called n queston by the Trustee or Trustees. Therefore, t s not dsputed that n terms of the powers vested n the Settlor Respondent, he has the sole rght and authorty to select or nomnate the trustees and hs decson s fnal and conclusve and shall not called n queston

7 r ( 7 by the trustees, and therefore, the trustees have no rght to queston the appontment of the new trustees. Further, t s mportant that the Deed of Trust No. 288 does not have any clause or condton for the trustees to amend or vary the terms and condtons of the trust deed, ncludng clause (6). f they want to do any acts as stated n Clauses (3), (4) and (5) they must do so wth the wrtten consent of the Settlor Respondent. Thus the powers of the Trustees are clearly restrcted and they cannot do any act wthout the wrtten consent of the Respondent. Furthermore, the Settlor has been granted further power that, "He shall and wll from tme to tme hereafter do and execute or cause to be done and executed all such acts, deeds, matters and thng whatsoever for the further and more perfectly assurng the sad trust premses n the Trustees n the manner aforesad as shall are may be reasonably requred" (See: para 3 n page 4 of Deed No. 288) l Therefore, as ponted out above, both the Wakfs Board and Wakf Trbunal had followed ther correct procedure n makng appontment of 3 new Trustees and dsmssng the Appellants' appeal. Thus, there s no mert n ths appeal and the appellants are not enttled n law to seek any relefs as prayed for ther petton. Therefore, affrm the Wakf Trbunal's judgment dated and dsmss ths appeal wthout Costs. Appeal dsmssed. J JUDGE OF THE COURT OF APPEAL