Supreme Court of India
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA & ANR.versusPATTAKAL CHERIYAKOYA & ORS.
- Citation
- 2019 INSC 849
- Decided
- 1 August 2019
- Disposal
- Dismissed
Holding
A customary hereditary right to the office of mutawalli is enforceable when the custom is ancient, certain, continuous and not contrary to public policy, and the High Court’s exercise of revisional jurisdiction was within its statutory limits.
Summary
The dispute concerned the office of mutawalli of the historic Andrott Jumah mosque in Lakshadweep. The senior members of the Pattakal family claimed a hereditary customary right to the office, tracing it to Saint Ubaidulla, the mosque’s founder, while the appellants, representing island residents, argued that the right belonged to the local community and that a committee formed in 1966 and a later compromise decree had broken any such custom. The High Court, exercising its revisional jurisdiction under Section 83(9) of the Waqf Act, 1995, upheld the respondents’ claim, finding that historical evidence, Gazette notifications and continuous succession established a valid custom. The Supreme Court affirmed that the High Court did not exceed its jurisdiction and that the respondents had satisfactorily pleaded and proved an ancient, certain, continuous custom not opposed to public policy, thereby confirming the customary hereditary succession to the mutawalli office. The compromise decree was held void, and the respondents’ right to the mutawalli post was upheld.
Issues considered
- Whether the Kerala High Court exceeded the scope of its revisional jurisdiction under Section 83(9) of the Waqf Act, 1995 in interfering with the Waqf Tribunal’s findings.
- Whether the respondents have duly pleaded and proved a customary right, of the nature of hereditary succession, to the office of mutawalli of the Andrott Jumah mosque.
Legislation cited
- Code of Civil Procedure, 1908s. Order I Rule 8, s. Order XXIII Rule 3B
- Indian Evidence Act, 1872s. 114, s. 35, s. 45, s. 81
- Kazis Act, 1880s. 4(c)
- Waqf Act, 1954s. 4, s. 5, s. 60
- Waqf Act, 1995s. 3(i), s. 64, s. 69(2), s. 83(9)
Subjects
Muslim lawWaqfMutawalliCustomary successionHereditary officeRevisional jurisdictionPublic policyEvidence ActCivil ProcedureLakshadweepMosque management
Judgment
[2019] 10 S.C.R. 961 961
ALIYATHAMMUDA BEETHATHEBIYYAPPURA A
POOKOYA & ANR.
v.
PATTAKAL CHERIYAKOYA & ORS.
(Civil Appeal No.9586 of 2010) B
AUGUST 01, 2019
[MOHAN M. SHANTANAGOUDAR AND
AJAY RASTOGI, JJ.]
Muslim Law – Succession – To the office of mutawalli –
C
Exception to the general rule against hereditary succession –
Dispute pertains to the office of mutawalli of the Andrott Jumah
mosque situated in Lakshadweep – Respondents, seniormost
members of the Pattakal family, claim to be the descendants of one
Saint Ubaidulla, stated to have built the mosque and was its first
mutawalli – They claim that by customary tradition, the office of the D
mutawalli of the mosque is vested with their family– Appellants,
representatives of residents of the Andrott Island claim that the
mosque was built by the inhabitants of the island and the respondents
never had customary right to the office of mutawalli, and the right
to select the mutawalli should vest with the people of the local area
E
– Respondents filed suit before the Waqf Tribunal for declaration
that the office of mutawalli of the mosque is vested with their family
– Suit decreed – High Court on appeal remanded it back to the
Tribunal – Suit dismissed – High Court decreed that the office of
mutawalli was vested with the respondents by custom –Held: It cannot
be said that the High Court exceeded the scope of its revisional F
jurisdiction – Historical materials corroborate that Ubaidulla was
the first mutawalli of the mosque and that after his demise, his
descendants, i.e. the Pattakal family, were holding the office of Kazi
and managing the mosque as mutawallis turn by turn – Appellants
have not produced any contrary historical opinion– Appellants
G
could not establish that there was breach in the respondents’
customary right of holding the post of mutawalli due to the formation
of the committee in 1966 which existed till 1972 or due to the
compromise decree (passed in suit between the appellants’ and
respondents’ predecessors, as per which the mosque was to be
managed by the committee elected by local residents) which is H
961
962 SUPREME COURT REPORTS [2019] 10 S.C.R.
A declared as void – Muslim law does not recognize an inherent right
of succession to the office of mutawalli – However, such a right
may be shown on the basis of certain exceptions, which includes
the creation of a custom to that effect – Respondents have been
able to establish customary right to the office of mutawalli of the
Jumah mosque, which is not unreasonable or opposed to public
B
policy – Waqf Act, 1995 – ss. 3(i), 64, 69(2) and 83(9) – Evidence
Act, 1872 – s.35, 45, 81 and 114 – Code of Civil Procedure, 1908 –
Or. I, r.8 and Or. XXIII, r.3B – Wakf Act, 1954 – ss.4,5 and 60.
Waqf Act, 1995 – s.83(9) – Revisional jurisdiction of the High
Court against order of the Waqf Tribunal – Scope of – Discussed.
C
Evidence Act, 1872 – ss.35, 45 and 81 – Gazette and contents
thereof – Appreciation of – Held: Gazette is an official record
evidencing public affairs, and its genuineness is presumed u/s.81–
Moreover, u/s.35, an entry made by the Gazetteer in discharge of
his official duty is a relevant fact – Any fact recorded by the
D Gazetteer may also be considered as expert opinion u/s.45 –
Therefore, the contents of the Gazette can be taken into account to
discover the historical materials contained therein, which the Court
may consider in conjunction with other evidence and circumstances
in adjudicating a dispute, even if it may not be conclusive evidence
E of the fact-in-issue.
Code of Civil Procedure, 1908 – Or. I, r.8 and Or. XXIII, r.3B
– Representative suit – Compromise decree – When void – Discussed.
Customary Law – Claim as to a customary right to succeed to
the office of mutawalli – Proof of – Held: A person claiming a
F customary right to succeed to the office of mutawalli would have to
show that the waqif (founder of the waqf) intended for the office to
devolve through a practice of hereditary succession – In the absence
of any express directions in the waqfnama to this effect, the claimant
would have to show that such practice has been in existence
G throughout the history of the trust, and not merely for a few
generations – Burden of proof would be higher with respect to a
public waqf, than a family trust – Muslim Law.
Dismissing the appeals, the Court
HELD: 1.1 Ordinarily, while revisional jurisdiction does not
H entitle the High Court to interfere with all findings of fact recorded
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v. 963
PATTAKAL CHERIYAKOYA
by lower Courts, the High Court may correct a finding of fact if it A
has been arrived at without consideration of material evidence,
is based on misreading of evidence, is grossly erroneous such
that it would result in miscarriage of justice, or is otherwise not
according to law. The scope of such revisional jurisdiction is wider
when the High Court is vested with the power to examine the
B
legality or propriety of the lower Court’s order under the statute
from which the revisional power arises. In such a situation, the
High Court may also examine the correctness of findings of fact,
and re-appraise the evidence (Ram Dass v. Ishwar Chander, (1988)
3 SCC 131). It is not disputed that Ubaidulla had come to Andrott
and converted the people of the island from Hinduism to Islam. C
The High Court was rightly of the opinion the Tribunal need not
have probed further for positive proof after noting all the historical
facts proved. Thus, the High Court in the impugned judgment
has not entered into a rehearing or reassessment of the findings
of fact arrived at by the Wakf Tribunal. Rather, the Court has
D
rightly noted that the Tribunal did not apply the appropriate
standard of proof to be applied in a civil suit, i.e. the standard of
preponderance of probability. Therefore, it cannot be said that
the High Court exceeded the scope of its revisional jurisdiction
in any manner. [Paras 12, 13] [976-D-G; 977-C-D]
1.2 The Tribunal in its judgment specifically noted that the E
partition deeds only relate to the division of properties within
the tharawad and do not deal with the right of management of the
mosque. The respondents themselves are claiming the office of
mutawalli as a customary right, not as a proprietary right. It has
even been admitted by counsel for the appellants during the F
course of arguments that the same cannot be a proprietary right.
Hence, the partition deeds could not have made any provision
with respect to the office of mutawalli, and the non-mentioning of
this office in the partition deeds will not prejudice the claim of
the respondents to a customary right to succeed to this office.
[Para 14] [977-F-G] G
1.3 Since this issue relates to a mosque constructed almost
1300-1400 years ago, it is impossible to find contemporary proof
of the construction of the same. The Gazetteer for the
Lakshadweep Islands, as recently as 1977, has recorded that
H
964 SUPREME COURT REPORTS [2019] 10 S.C.R.
A Ubaidulla was the first musaliyar in Andrott and is buried in the
Andrott mosque. The Gazetteer, as well as the then Collector,
gave credence to this account in spite of inaccuracies relating to
the date of conversion of the inhabitants. The Gazette is an official
record evidencing public affairs, and its genuineness is presumed
under Section 81 of the Evidence Act, 1872. Moreover, under
B
Section 35 of the Evidence Act, an entry made by the Gazetteer
in discharge of his official duty is a relevant fact. Any fact recorded
by the Gazetteer may also be considered as expert opinion under
Section 45 of the Evidence Act. Therefore, the contents of the
Gazette can be taken into account to discover the historical
C materials contained therein, which the Court may consider in
conjunction with other evidence and circumstances in adjudicating
a dispute, even if it may not be conclusive evidence of the fact-
in-issue (Bala Shankar Mana Shankar Bhattjee v. Charity
Commissioner, Gujarat State, 1994 Suppl. (2) SCR 687). Such a
record cannot be challenged by the appellants merely on the
D
ground that it is not a recent publication. Moreover, irrespective
of the date of conversion of the island’s inhabitants, had Ubaidulla
not had a significant connection to the mosque, there would have
been no reason for him to be buried there and for the tomb to be
venerated. Even if the book (Ex A37) is disregarded on the ground
E that it was written by Respondent No. 2’s relative (that too after
the suit was filed), other independent historical materials
corroborate that Ubaidulla was the first mutawalli of the mosque,
that he married a female convert and established the Pattakal
tharawad, and that after his demise, his descendants, i.e. the
Pattakal family, were holding the office of Kazi and managing the
F
mosque as mutawallis turn by turn. Moreover, as the High Court
has rightly observed, these materials refer to the history of the
island, its administration, the local culture and economy, etc., all
of which constitute historical facts, and these materials qualify as
historical literature. Hence, the appellants’ contention that these
G materials are legendary or mythological in nature, disagreed with.
The appellants, on the other hand, have not produced any contrary
historical opinion that states that Ubaidulla was not the first
mutawalli and that his descendants did not continue to hold the
office of mutawalli, or any historical proof to show that the mosque
was being managed by local residents or by a committee. Thus,
H
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v. 965
PATTAKAL CHERIYAKOYA
no reason to interfere with the finding by the High Court that the A
respondents have held the office of mutawalli of the mosque since
its establishment. [Para 15] [978-F-H; 979-A-G]
1.4 It is not under dispute that this office can be customary.
This is also evident from the definition of ‘mutawalli’ in Section
3(i) of the Waqf Act, 1995, which includes a person who is B
mutawalli by virtue of any custom. Muslim law does not recognize
an inherent right of succession to the office of mutawalli. However,
various scholars on Muslim law have opined that such a right
may be shown on the basis of certain exceptions, which includes
the creation of a custom to that effect. a claim of hereditary
succession may be accepted if it is founded in a direction to that C
effect by the waqif (i.e. the founder of the waqf). Such a direction
may be presumed from a practice of successive appointments
made from amongst the waqif’s family members. Even the
decisions which have held that there is no right to hereditary
succession to the office of mutawalli under Muslim law do not D
support the appellants’ contention that there cannot be an
exception by way of custom to the general rule affirmed in those
decisions. The Waqf Act, 1995 itself acknowledges that a waqf
may have a hereditary mutawalli. This is evident from the proviso
to Section 69(2), dealing with the power of the Waqf Board to
frame a scheme for the administration of a waqf. A person claiming E
a customary right to succeed to the office of mutawalli would have
to show that the waqif intended for the office to devolve through
a practice of hereditary succession. In the absence of any express
directions in the waqfnama to this effect, the claimant would have
to show that such practice has been in existence throughout the F
history of the trust, and not merely for a few generations, such
that the waqif’s intention that the office should be hereditary can
be presumed. The burden of proof would be higher with respect
to a public waqf, such as the suit waqf in the instant case, than a
family trust. A custom in order to be legal and binding must be
certain, reasonable and acted upon in practice for a long period G
with such invariability and continuity that it has become the
established governing rule in a community by common consent.
It is incumbent upon the party relying on the custom to plead and
prove it. While no person can claim the office of mutawalli merely
H
966 SUPREME COURT REPORTS [2019] 10 S.C.R.
A by virtue of being an heir of the waqif or the original mutawalli, if
they can show through a long-established usage or custom that
the founder intended that the office should devolve through
hereditary succession, such usage or custom should be followed.
Additionally, the practice would have to comply with the
requirements which are generally applicable while proving a
B
custom, i.e. it must be specifically pleaded, and should be ancient,
certain, invariable, not opposed to public policy, and must be
proved through clear and unambiguous evidence. The
respondents in paragraph 2 of their plaint in O.S. No. 1/1998 have
specifically pleaded that the office of the mutawalli is vested in
C the Pattakal family ‘by virtue of immemorial custom and usage.’ It
can be inferred that even prior to the enforcement of the Kazis
Act, the government appointed a Kazi for Andrott Island, for a
limited duration only, on the request of the inhabitants. Therefore,
such appointment would not prejudice the respondents’ customary
right to manage the Jumah mosque. In any event, a singular
D
artificial break or gap in the exercise of a customary right, that
too by executive orders, would not lead to abrogation of the
customary right itself, unless such break constitutes a recurring
infringement or leads to conferment of title in the opposite party.
The appellants have not been able to show that apart from the
E instances mentioned in Ex B8 or B9, anybody else was functioning
as the Kazi-cum-mutawalli of the mosque since ages prior to the
filing of the suit, so as to constitute a recurring infringement or
to confer title upon a third party. On the other hand, the
respondents have produced considerable documentary evidence
to show that members of the Pattakal family were functioning as
F
mutawalli since the establishment of the mosque. Thus, the
appellants’ argument in this regard fails.[Paras 16-26, 29]
[979-H; 980-A-B; 982-B, C, G-H; 983-C, E-H; 984-E-G; 985-A;
988-G-H; 989-B-C]
1.5 The committee was only in existence from 1966 to
G 1972 and that too only to advise the mutawalli in relation to the
repair and maintenance of the mosque. Entries made in and
around 1967 regarding the Jumah mosque in the List of Wakfs
and the Register of Wakfs under the Wakf Act, 1954, evidence
that the office of mutawalli was customarily vested in the
H respondents, and not in the committee, during the period to which
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v. 967
PATTAKAL CHERIYAKOYA
the entries pertain. Since the List of Wakfs (Ex A3) relied upon A
by the respondents is a Gazette notification, the entry contained
therein showing that the office of mutawalli was held by the
Patakkal family will constitute a relevant fact under Sections 35,
45 and 81 of the Evidence Act. Both the Tribunal and the High
Court have concurrently found that it is an admitted fact that an
B
enquiry was made by the Waqf Board pertaining to the Jumah
mosque in 1967. Appellant No.1 had also deposed before the
Tribunal about having participated in this enquiry, after which
the List was published. Thereafter, no complaint was made against
the entry in the List. Hence, the appellants cannot at this stage
claim that the entry made is incorrect. The Register of Wakfs is C
prepared by the Wakf Commissioner, an official appointed by the
State Government, hence an entry made therein is an entry made
by a public official in performance of his official duty and is
considered a relevant fact under Section 35 of the Evidence Act.
Hence the entry made in the Register of Wakfs (Ex A4) showing
D
Pattakal Koyammakoya as the mutawalli of the Jumah mosque is
a relevant fact for the purpose of deciding this dispute. Under
Order I Rule 8, CPC, which pertains to representative suits, a
person may sue or defend on behalf of others and for the benefit
of others having the same interest, with the permission of the
Court. The object of Order I Rule 8 is to facilitate the decision of E
questions in which a large number of persons are interested
without recourse to ordinary procedure. Per Order XXIII Rule
3B, in order to compromise in a representative suit, it is necessary
to obtain the leave of the Court. Before grant of leave to
compromise, the Court needs to give notice in such a manner as
F
it may think fit, to such persons as may appear to it to be
interested in the suit. Even assuming that the respondents’
contention is accepted that the said suit was not strictly filed under
Order I Rule 8, it would be regarded in the nature of a
representative suit for the purposes of Explanation (c) to Order
XXIII Rule 3B. Explanation (c) provides that the term G
‘representative suit’ includes suits where the compromise decree
passed therein becomes binding on persons not named as parties
to the suit. In O.S. No.10/1974, Pattakal Koyammakoya was
representing the respondent family’s interests in his capacity as
Karanavan of the family. The appellants before this court have
H
968 SUPREME COURT REPORTS [2019] 10 S.C.R.
A also not disputed that the compromise decree was without leave
of the court and without notice to interested family members.
Such violations of Order XXII Rule 3-B cannot be said to be
merely procedural, and go to the root of the matter since they
deprive the affected parties of the chance to question the terms
of the compromise that they are going to be bound by. Since both
B
the conditions required under Order XXIII Rule 3B were not
complied with, the compromise decree was void. Further, in
addition to the above procedural violation, the compromise decree
is also illegal insofar as it fails to comply with Section 60 of the
Wakf Act, 1954, which provides that no suit in any Court by or
C against the mutawalli of a wakf relating to the rights of the
mutawalli shall be compromised without the sanction of the Wakf
Board. Rather than obtaining the sanction of the Wakf Board prior
to the decree, the compromise decree mentions in paragraph 7
that the decisions taken therein are to be subsequently intimated
to the Wakf Board. The compromise decree was illegal and void.
D
The abrogation of custom cannot be inferred from a mere
individual declaration (i.e. the admissions made by Pattakal
Koyammakoya Thangal in the decree) in the absence of any
continuous course of conduct by the family to that effect. The
respondents’ family was not given notice before passing of the
E compromise decree and did not have any say with respect to the
terms framed therein, and hence it cannot be said that the decree
is binding against them. Thus, the appellants have not been able
to establish that there was a breach in the respondents’ customary
right of holding the post of mutawalli due to the formation of the
committee in 1966 which existed till 1972 or due to the
F
compromise decree which is declared as void. [Paras 30, 32 and
33] [989-G-H; 90-C, D-F; 992-C-F; 993-A-D]
1.6 There cannot be any dispute that the mutawalli has no
right in the property belonging to the waqf, and is merely a
superintendent or manager. Hence, the respondents’ right to
G office of mutawalli does not divest the waqf of its public character.
Moreover, the exercise of any customary right to succession will
be necessarily subject to the provisions of the Waqf Act, 1995,
which provides broad powers to the Waqf Board for supervising
the administration of a waqf. Even if the mutawalli belongs to the
H family of the waqif, he is not immune from removal in the case of
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v. 969
PATTAKAL CHERIYAKOYA
mismanagement of the waqf, and must administer the waqf in A
accordance with the principles of common prudence and probity.
It cannot be said that the respondents’ exercise of customary
right to the office of mutawalli is unreasonable or violates public
policy. The respondents have been able to establish a customary
right to the office of mutawalli of the Jumah mosque, under the
B
facts and circumstances of this case, which is not unreasonable
or opposed to public policy. The respondents have through clear
and unambiguous evidence shown a practice of continuous and
invariable devolution of the office of mutawalli through successive
appointments from within the Patakkal family, beginning with the
institution of the mosque itself. This evidence is sufficient to draw C
a presumption that such hereditary devolution was as per the
intention of Ubaidulla, the original wakif, therefore also satisfying
the specific requirements for proving a custom of hereditary
succession to the office of mutawalli. [Paras 34, 35] [994-A-B;
995-B-E]
D
Hindustan Petroleum Corporation Ltd v. Dilbahar Singh
(2014) 9 SCC 78 – followed.
Bala Shankar Mana Shankar Bhattjee v. Charity
Commissioner, Gujarat State [1994] 2 Suppl. SCR 687
– relied on. E
Sayed Ahamedkoya Thangal v. Administrator, (1997) 2
KLJ 362; Mt. Sardar Bibi v. Haq Nawaz Khan, AIR
1934 Lahore 371; Ram Dass v. Ishwar Chander (1988)
3 SCC 131 : [1988] 1 Suppl. SCR 239; Atimannessa
Bibi v. Abdul Sobhan, (1916) 43 Cal 467 ; In Re F
Mahomed Haji Haroon Kadwani ILR (1935) 59 Bom
424; Bebee Syedun v. Syed Allah Ahmad W.R. 1864,
327 (Calcutta High Court); Shah Gulam Rahumtulla
Sahib v. Mahommed Akbar Sahib 8 Mad. H.C. Rep.
63 (1875); Phatmabi v. Haji A. Musa Sahib (1915) 38
Mad. 491; Kalandar Batcha Sahib v. Jailani Sahib AIR G
1930 Mad 554 ; H.H. Mir Abdul Hussein Khan v. Bibi
Sona Dero AIR 1917 PC 181; Ramalakshmi Ammal v.
Sivanantha Perumal Sethurayar (1871-72) 14 Moo IA
570 ; Muniandi Kone v. Sri Ramanatha Sethupathi AIR
1982 Madras 170 ; K.A Srinivasa Ayyangar v. S. H
Ramanujachariar 1941 (1) M.L.J 322 – referred to.
970 SUPREME COURT REPORTS [2019] 10 S.C.R.
A S.A Khader in Law of Wakfs (1999, Page 33); Mulla in
Principles of Mahomedan Law, 21 st Edn., 2017,
Prof. Iqbal Ali Khan Edn.; Fyzee’s Outlines of
Muhammedan Law (5 th Edn., 2008, Prof. Tahir
Mahmood Ed., p. 49) – referred to.
B Case Law Reference
(1997) 2 KLJ 362 referred to Para 8
AIR 1934 Lahore 371 referred to Para 9
(2014) 9 SCC 78 followed Para 12
C [1988] 1 Suppl. SCR 239 referred to Para 12
[1994] 2 Suppl. SCR 687 relied on Para 15
(1916) 43 Cal 467 referred to Para 17
(1935) 59 Bom 424 referred to Para 17
D W.R. 1864, 327 referred to Para 17
8 Mad. H.C. Rep. 63 (1875) referred to Para 19
(1915) 38 Mad. 491 referred to Para 19
AIR 1930 Mad 554 referred to Para 19
E
AIR 1917 PC 181 referred to Para 23
(1871-72) 14 Moo IA 570 referred to Para 23
AIR 1982 Madras 170 referred to Para 29
1941 (1) M.L.J 322 referred to Para 29
F
CIVIL APPELLATE JURISDICTION: Civil Appeal No.9586 of
2010
From the Judgment and Order dated 18.12.2007 of the High Court
of Kerala at Ernakulam in C.R.P. No. 460 of 2006 (A)
G With
Civil Appeal Nos. 9588, 9587 of 2010
Shekhar Naphade, Sr.Adv., Vivek Chib, Ms. Pracheta Kar,
Kaushal Sharma, Neeraj Shekhar, A. Raghunath, Sayyid Nilamuddin,
H
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v. 971
PATTAKAL CHERIYAKOYA
Sayyid Saifudheen, S. Lakshmiu Iyer, Abhikalp Pratap Singh, Advs. for A
the Appellants.
R. Basant, Thomas P. Joseph, Sr. Advs., K. Rajeev, A. Raghunath,
E.M.S. Anam, A.D. Sikri, Rajiv Mehta, Advs. for the Respondents.
The Judgment of the Court was delivered by
B
MOHAN M. SHANTANAGOUDAR, J.
1. Interlocutory Application No. 93605 of 2018 in Civil Appeal
No. 9586 of 2010 for deleting the names of appellant Nos. 3 and 4 and
respondent No. 7 from the array of parties is allowed.
2. These appeals arise out of the judgment dated 18.12.2007 of C
the High Court of Kerala at Ernakulam in C.R.P. Nos. 460/2006 and
462/2006. By the impugned judgement, the High Court decreed O.S.
No. 1/1998 and dismissed O.S. No. 1/2001. It is relevant to note that
O.S. No. 1/1998 was filed by the common respondents in these appeals,
whereas O.S. No. 1/2001 was filed by the appellants in C.A. Nos. 9587/ D
2010 and 9588/2010.
3. The present dispute pertains to the office of mutawalli of the
Andrott Jumah mosque situated in Lakshadweep. The mosque is
presently a public waqf registered with the Lakshadweep Waqf Board.
The respondents herein are the seniormost male members of the different
E
thavazhies (branches of descendants through the female line) of the
Pattakal family. They claim to be the descendants of one Saint Ubaidulla,
who is stated to have built the Andrott Jumah mosque, and who was its
first mutawalli. Thus, they claim that by customary tradition, the office
of the mutawalli of the mosque is vested with their family. It is their
case that the members of the family choose the mutawalli from amongst F
themselves, and Respondent No. 1 is functioning as the present mutawalli
of the mosque.
The appellants in C.A. No. 9586/2010 are members of the
Aliyathammuda tharawad and claim to be the khateebs (sermon-givers)
in the mosque. The appellants in the connected appeals C.A. Nos. 9587/ G
2010 and 9588/2010 claim to be suing as representatives of residents of
Andrott Island, Lakshadweep. The common contention of the appellants
in these three appeals is that the Jumah mosque was built by the
inhabitants of Andrott island and was first administered by the ‘Amin
H
972 SUPREME COURT REPORTS [2019] 10 S.C.R.
A and Karanavan’ system (i.e. by the executive officer assisted by the
nominated heads of local families), and subsequently by a committee of
elected public representatives from 1966-1972. The president of such
committee from 1966-1972 was the respondents’ predecessor Pattakal
Koyammakoya Thangal, who was removed from presidency in 1974
after a dispute arose. It may be noted that while the appellants in C.A.
B
No. 9586/2010 claim that the system of management by an elected
committee continued after the dispute, the appellants in connected appeals
C.A. Nos. 9587/2010 and 9588/2010 claim that due to this dispute,
management of the mosque broke down. However, their common claim
is that the respondents never had a customary right to the office of
C mutawalli, and the right to select the mutawalli should vest with the
people of the local area.
4. It is also their common claim that a compromise decree was
passed on 16.02.1981 in O.S. No. 10/1974 between the appellants’
predecessors and Pattakal Koyammakoya Thangal, as per which the
D mosque was to be managed by the committee elected by local residents.
The appellants’ contention is that even if there was any customary right
vested with the respondents, it was breached by the formation of the
committee and passing of the compromise decree. However,
subsequently, the respondents filed civil suit O.S. No. 1/1998 before the
Waqf Tribunal, Kavarathi praying for a declaration that the office of
E mutawalli of the Jumah mosque is vested with the Pattakal family.
Initially, the suit was decreed in their favour, but the High Court on appeal
remanded it back to the Waqf Tribunal for fresh disposal.
5. After remand, the Waqf Tribunal by its judgment dated
20.05.2006 held that there was no evidence to show that the mosque
F was being managed by an elected committee. Though the Tribunal
declared that the compromise deed in O.S. No. 10/1974 was void, as no
application was made for leave of the Court, and the respondents’ family
was not given notice as required under Order XXIII Rule 3B of the Civil
Procedure Code (for short “CPC”), it found that the respondents, on
G their part, had not produced any positive evidence to show that Ubaidulla
was the first mutawalli of the Jumah mosque,and that the customary
right to the office of mutawalli was vested with their family i.e. Pattakal
family. Rather, the right to manage the mosque was vested with the
local residents. Hence, it dismissed the suit and directed the parties along
with the Waqf Board to draft a scheme for the management of the
H
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v. 973
PATTAKAL CHERIYAKOYA [MOHAN M. SHANTANAGOUDAR, J.]
mosque. Against this judgment, the respondents filed a revision petition A
before the High Court.
6. The High Court in the impugned judgment found that there was
no evidence to show that anyone apart from the respondents had
functioned as mutawalli of the mosque at any point of time. It held that
the committee in existence from 1966-1972 was only a committee for B
overseeing the repairs and maintenance of the mosque, and not for
management thereof, and agreed with the Tribunal’s reasoning with
respect to the compromise decree being void. On this basis, it decreed
that the office of mutawalli was vested with the respondents by custom.
Hence, these appeals by the various appellants before us.
C
7. It is important to note that counsel for the various appellants
have admitted that the office of mutawalli can be a customary office.
However, their contention is that such an office can be heritable by
custom only if it is specifically pleaded and proved, which was not done
by the respondents in this case.
D
8. Learned senior counsel for the appellants, Shri Shekhar
Naphade, emphatically argued before us that the High Court has exceeded
the scope of its revisional jurisdiction under Section 83(9) of the Waqf
Act, 1995, and acted like a first appellate Court by re-appreciating the
evidence on record; and that the High Court has decreed the respondents’
customary right by placing reliance upon legends, mythologies, fiction E
and outdated materials, which do not specifically state that Ubaidulla
was the first mutawalli of the Jumah mosque.
That the book ‘Futhuhathul Jesair’ (Ex A37) should not have
been relied upon, as it was published after the filing of the suit, and
Respondent No. 2 in his deposition in O.S. No. 1/1998 admitted that it F
was written by his uncle’s brother-in-law. According to the appellants, it
was purposefully written to support the respondents’ case. Reliance was
also placed upon Ex B8 and ExB9 to show that the Pattakal family
was not managing the mosque in 1921 and 1923.
That in the Lakshadweep islands, the office of Kazi and mutawalli G
are one and the same, and the Kerala High Court in Sayed Ahamedkoya
Thangal v. Administrator, (1997) 2 KLJ 362, had held that the
respondents’ family i.e. the Pattakals did not have a hereditary right to
the office of Kazi and therefore could not challenge the appointment of
a Kazi under the Kazis Act, 1880. This order having attained finality, it
H
974 SUPREME COURT REPORTS [2019] 10 S.C.R.
A was now not open to the respondents to argue in favour of a hereditary
right to the office of mutawalli, when such right has been denied for the
office of Kazi; and that the respondents themselves admitted in the plaint
in O.S. No. 1/1998 that the office of mutawalli and Kazi is one and the
same, but conveniently sought only the office of mutawalli in relief.
B That the respondents have undergone partition amongst themselves,
but the two partition deeds produced before the Tribunal do not mention
which branch of the family would continue to hold the office of mutawalli,
and the same belies the respondents’ case that it was a hereditary right
within the family.
C That the compromise decree is binding against the respondents
since the irregularity therein found by the Tribunal was only procedural,
and that the burden was on the respondents to show that the decree was
void, since there is a presumption under Section 114(e) of the Indian
Evidence Act, 1872 that judicial acts have been regularly performed.
D Lastly, learned counsel argued that the material on record clearly
shows that the public of Andrott Island has always had a role in the
management of the mosque, which is registered as a public waqf, and
even if the respondents have a customary right to the office of mutawalli,
it is against public policy to let the management rights of a public waqf
vest in one family.
E
9. Per contra, learned counsel for the respondents has drawn
attention to the Tribunal’s finding that the documentary evidence showed
that it was the respondents’ family which was managing the mosque
property. On the other hand, there was no documentary evidence to
show that the committee of public representatives formed in 1966 was
F managing the mosque.
He reiterated the argument made before the Tribunal pertaining
to Sections 4 and 5 of the Wakf Act, 1954, under which a List of Wakfs
is published by the Wakf Board after due inquiry by the Survey
Commissioner. Before the Tribunal, the respondents had produced ExA3,
G the Gazette notification issued by the Lakshadweep Wakf Board
containing the List of Wakfs published under Section 5, which showed
that the office of mutawalli of the Jumah mosque was held by “members
of pattakal (family) under the supervision of Amins and
Karanavans”. Learned counsel also referred to Ex A4 and Ex A5, the
certified copy of the entry in the statutory Register of Wakfs, and the
H
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v. 975
PATTAKAL CHERIYAKOYA [MOHAN M. SHANTANAGOUDAR, J.]
receipt for wakf registration dated 5.3.1967 respectively, both of which A
show the name of the respondents’ predecessor Pattakal Koyammakoya
as mutawalli for the Jumah mosque.
Learned counsel relied upon these documents to contradict the
claim that the committee constituted in 1966 was managing the mosque
at that time. Further, since these documents were not challenged by the B
appellants before the institution of the suit, they could not now claim that
the respondents were not holding the office of mutawalli.
The respondents relied upon the judgment of the Full Bench of
the Lahore High Court in Mt. Sardar Bibi v. Haq Nawaz Khan,AIR
1934 Lahore 371, wherein it was held that a long established custom C
practiced by a family or community cannot be abrogated by a mere
individual declaration to that effect, but such abrogation has to be inferred
from the course of conduct of the family or community over an extended
period of time. Hence, even if the appellants’ arguments with respect to
the committee or the compromise decree were accepted, the respondents’
customary right to office of mutawalli would not be abrogated simply D
because Pattakkal Koyammakoya Thangal took up of the presidency of
the committee or entered into the compromise dated 16.02.1981 as
Karanavan of the Pattakal family.
Learned counsel for the respondents finally stressed that both the
Courts have rightly held that the compromise decree dated 16.02.1981 E
was not only illegal but also void; that merely because of certain small
gaps in the 1920s in which the Pattakal family did not hold the office of
mutawalli, the customary office held by the family could not be held to
be discontinued; and that mere artificial breaks, that too for small periods
and only on a couple of occasions, could not, in law, break the continuity F
in the administration of the mosque by the Pattakal mutawalli.
10. From the aforementioned arguments, the following issues arise:
Firstly, whether the High Court exceeded the scope of its revisional
jurisdiction; and
G
Secondly, whether the respondents have pleaded and proved that
they have a customary right to the office of mutawalli in the Jumah
mosque.
11.Regarding the appellants’ argument on the scope of the
revisional jurisdiction of the High Court against an order of the Waqf
H
976 SUPREME COURT REPORTS [2019] 10 S.C.R.
A Tribunal, it is pertinent to note Section 83(9) of the Waqf Act, 1995
which provides that:
“No appeal shall lie against any decision or order whether interim
or otherwise, given or made by the Tribunal:
Provided that a High Court may, on its own motion or on the
B application of the Board or any person aggrieved, call for and
examine the records relating to any dispute, question or other matter
which has been determined by the Tribunal for the purpose of
satisfying itself as to the correctness, legality or propriety of such
determination and may confirm, reverse or modify such
C determination or pass such other order as it may think fit.”
(emphasis supplied)
12. It is well settled that ordinarily, while revisional jurisdiction
does not entitle the High Court to interfere with all findings of fact
recorded by lower Courts, the High Court may correct a finding of fact
D if it has been arrived at without consideration of material evidence, is
based on misreading of evidence, is grossly erroneous such that it would
result in miscarriage of justice, or is otherwise not according to law (see
the decision of the Constitution Bench of this Court in Hindustan
Petroleum Corporation Ltd v. Dilbahar Singh, (2014) 9 SCC 78).
Importantly, the scope of such revisional jurisdiction is wider when the
E High Court is vested with the power to examine the legality or propriety
of the lower Court’s order under the statute from which the revisional
power arises. In such a situation, the High Court may also examine the
correctness of findings of fact, and re-appraise the evidence (see Ram
Dass v. Ishwar Chander, (1988) 3 SCC 131). It is in this perspective
F that the argument of the appellants must be considered.
13. As rightly noted by the Tribunal, it is not disputed that Ubaidulla
had come to Andrott and converted the people of the island from Hinduism
to Islam. The Tribunal also observed that the respondents/plaintiffs were
Ubaidulla’s descendants “by all probabilities”, keeping in mind the
G historical materials produced. It was further observed that historians
were of the unanimous opinion that Ubaidulla was the first Kazi/mutawalli
of the mosque and that members of his family had held the office of
Kazi in succession. However, in spite of these observations, the Tribunal
did not go on to render a finding to the effect that the respondents had
been holding the post of mutawalli in succession. Instead, it concluded
H
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v. 977
PATTAKAL CHERIYAKOYA [MOHAN M. SHANTANAGOUDAR, J.]
that Ubaidulla was an alien who could not have owned land on the island, A
and hence, the mosque could not have been constructed by him, and
there was no positive evidence that he and his descendants were
mutawallis of the Jumah mosque.
The High Court noted that the findings of the Tribunal contradicted
its earlier observations, and held that since the mosque was constructed B
as long ago as in the seventh century, no evidence other than the historical
material on record could be obtained to show, that in all probability,
Ubaidulla had indeed constructed the mosque. There could not be specific
or direct evidence of the donation of land for constructing the mosque,
or of the construction of mosque itself, and so on. The Court was rightly
of the opinion the Tribunal need not have probed further for positive C
proof after noting all the historical facts proved.
Thus, it is evident that the High Court in the impugned judgement
has not entered into a rehearing or reassessment of the findings of fact
arrived at by the Wakf Tribunal. Rather, the Court has rightly noted that
the Tribunal did not apply the appropriate standard of proof to be applied D
in a civil suit, i.e. the standard of preponderance of probability.
Therefore, it cannot be said that the High Court exceeded the
scope of its revisional jurisdiction in any manner.
14. To consider the appellants’ argument that the Pattakal family E
did not have a customary right to the office of mutawalli of the Jumah
mosque, we may first address the minor argument raised by the appellants
with respect to the respondents’ partition deeds. The Tribunal in its
judgment has specifically noted that the partition deeds only relate to the
division of properties within the tharawad and do not deal with the right
of management of the mosque. The respondents themselves are claiming F
the office of mutawalli as a customary right, not as a proprietary right.
It has even been admitted by learned counsel for the appellants during
the course of arguments that the same cannot be a proprietary right.
Hence, the partition deeds could not have made any provision with respect
to the office of mutawalli, and the non-mentioning of this office in the G
partition deeds will not prejudice the claim of the respondents to a
customary right to succeed to this office.
15. We would now like to address the appellants’ contention that
the materials adduced by the respondents to show that they have
continuously held the office of mutawalli should not have been relied
H
978 SUPREME COURT REPORTS [2019] 10 S.C.R.
A upon by the High Court, as they were not contemporary and were
fictitious in nature. We find ourselves unable to agree with this contention
for the reasons laid out below.
We have gone through the material which the High Court has
relied upon to grant the respondents’ claim. The first is Ex A36, A Short
B Account of the Laccadive Islands and Minicoy, by R.H. Ellis, published
in the year 1924. Ellis was at that time the Collector for the territory.
The book mentions on page 16that Saint Ubaidulla was regarded as the
first musaliyar (proselytizer) in the area, and his descendants till 1920
held the office of Kazi of Andrott Island. The second is a note prepared
in 1977 by the Gazetteer for the Lakshadweep islands. Though this
C document was not marked as an exhibit, counsel for the appellants stated
that it had nevertheless been placed and relied upon before the Tribunal
and the High Court. This publication on page 44 notes that Ubaidulla
was the first musaliyar in Andrott and his grave is enshrined within the
Andrott mosque and regarded with deep veneration.
D The High Court also noted the observation in the book Deepolpathy
(published in 1960) (Ex A35) that the respondent Pattakal family was
descended from Saint Ubaidulla, who was the first Kazi of the mosque,
and that members of the Pattakal family were its traditional Kazis, and
continued to be so at the time of writing. The High Court also appreciated
E an entry in the Encyclopedia Britannica (edition unspecified), as well as
certain remarks in the Arabic book Futhuhathul Jesair (Ex A37), to
the same effect.
We agree with the opinion of the High Court that since this issue
relates to a mosque constructed almost 1300-1400 years ago, it is
F impossible to find contemporary proof of the construction of the same.
The Gazetteer for the Lakshadweep Islands, as recently as 1977, has
recorded that Ubaidulla was the first musaliyar in Andrott and is buried
in the Andrott mosque. The Gazetteer, as well as the then Collector
R.H. Ellis, gave credence to this account in spite of inaccuracies relating
to the date of conversion of the inhabitants.
G
It is important to note at this stage that the Gazette is an official
record evidencing public affairs, and its genuineness is presumed under
Section 81 of the Evidence Act, 1872. Moreover, under Section 35 of
the Evidence Act, an entry made by the Gazetteer in discharge of his
official duty is a relevant fact. Any fact recorded by the Gazetteer may
H
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v. 979
PATTAKAL CHERIYAKOYA [MOHAN M. SHANTANAGOUDAR, J.]
also be considered as expert opinion under Section 45 of the Evidence A
Act. Therefore, the contents of the Gazette can be taken into account to
discover the historical materials contained therein, which the Court may
consider in conjunction with other evidence and circumstances in
adjudicating a dispute, even if it may not be conclusive evidence of the
fact-in-issue (see Bala Shankar Mana Shankar Bhattjee v. Charity
B
Commissioner, Gujarat State, 1994 Suppl. (2) SCR 687). Such a record
cannot be challenged by the appellants merely on the ground that it is not
a recent publication.
Moreover, irrespective of the date of conversion of the island’s
inhabitants, had Ubaidulla not had a significant connection to the mosque,
there would have been no reason for him to be buried there and for the C
tomb to be venerated. Even if the book Futhuhathul Jesair (Ex A37)
is disregarded on the ground that it was written by Respondent No. 2’s
relative (that too after the suit was filed), other independent historical
materials corroborate that Ubaidulla was the first mutawalli of the
mosque, that he married a female convert and established the Pattakal D
tharawad, and that after his demise, his descendants, i.e. the Pattakal
family, were holding the office of Kazi and managing the mosque as
mutawallis turn by turn.
Moreover, as the High Court has rightly observed, these materials
refer to the history of the island, its administration, the local culture and E
economy, etc., all of which constitute historical facts, and these materials
qualify as historical literature. Hence, we disagree with the appellants’
contention that these materials are legendary or mythological in nature.
The appellants, on the other hand, have not produced any contrary
historical opinion that states that Ubaidulla was not the first mutawalli F
and that his descendants did not continue to hold the office of mutawalli,
or any historical proof to show that the mosque was being managed by
local residents or by a committee. Thus, we find no reason to interfere
with the finding by the High Court that the respondents have held the
office of mutawalliof the mosque since its establishment.
G
16. It now remains to be seen whether the material relied upon
by the High Court was sufficient to establish a customary right to the
office of mutawalli in favour of the respondents. We would like to
reiterate at this stage that it is not under dispute that this office can be
customary. This is also evident from the definition of ‘mutawalli’ in
H
980 SUPREME COURT REPORTS [2019] 10 S.C.R.
A Section 3(i) of the Waqf Act, 1995, which includes a person who is
mutawalli by virtue of any custom.
17. At the outset, it is pertinent to note that Muslim law does not
recognize an inherent right of succession to the office of mutawalli. In
Atimannessa Bibi v. Abdul Sobhan, (1916) 43 Cal 467, the High Court
B of Calcutta laid down the proposition as follows:
“…though a descendant of the founder has a preferential
claim to the office of mutawalli, he does not become
mutawalli by right of inheritance but has to be appointed
such by the “Qadi” who may be supersede him if he is not
C qualified.”
An almost identical position was taken by the High Court of
Bombay in In Re Mahomed Haji Haroon Kadwani, ILR (1935) 59
Bom 424. Similarly, the High Court of Calcutta in Bebee Syedun v.
Syed Allah Ahmad, W.R. 1864, 327 held that hereditary succession is
D extremely unlikely in offices in Mohammedan religious endowments.
18. However, various scholars on Muslim law have opined that
such a right may be shown on the basis of certain exceptions, which
includes the creation of a custom to that effect. In this respect, we may
refer to the following discussion by S.A. Khader in Law of Wakfs (1999,
E page 33):
“Hereditary right to the office of mutawalli: Muslim law does not
recognise any right of inheritance or rule of hereditary succession
to the office of mutawalli. There are two exceptions to this
principle:
F (1) Where the founder has laid down the rule of hereditary
succession to the office in which case the rule has to be adhered
to, and
(2) Where the office of mutawalli becomes hereditary by custom
in which case the custom should be followed.”(emphasis supplied)
G A similar observation has been made by Mullain Principles of
Mahomedan Law (21st edn., 2017, Prof. Iqbal Ali Khan ed.) (for short
“Mulla”) on page 253:
“The Mahomedan law does not recognize any right of inheritance
to the office of mutawalli. But the office may become hereditary
H
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v. 981
PATTAKAL CHERIYAKOYA [MOHAN M. SHANTANAGOUDAR, J.]
by custom, in which case, the custom should be followed.” A
(emphasis supplied)
19. We have also given due consideration to several judgments of
various High Courts which appear to support the above observations,
inasmuch as they recognise that an exception can be made to the general
rule against hereditary succession and lay down certain principles in this B
regard for proving such an exception.
In Shah Gulam Rahumtulla Sahib v. Mahommed Akbar Sahib,
8 Mad. H.C. Rep. 63 (1875), the question before the High Court was
whether the office of the custodian of a waqf could devolve through
primogeniture. The Court opined in this case that in cases of succession C
to the office of the custodian of a waqf, succession would be determined
in terms of the rules established by the founder of the waqf, which could
be inferred from evidence of usage.
Another leading precedent in this regard is Phatmabi v. Haji A.
Musa Sahib, (1915) 38 Mad. 491. In this case, an heir of the previous D
mutawalli laid claim to the office through hereditary devolution. In this
backdrop, the High Court of Madras observed as follows on page 494:
“Where there has been a series of appointments of Mutawallis, it
is generally assumed that the appointments have been valid, which
implies that such appointments have been made in accordance E
with the terms of the original dedication relating to the mode in
which the successive appointments have to be made.” (emphasis
supplied)
On page 495 it was further observed:
“The law does not directly empower the Mutawalli of every waqf F
to appoint his successor but if in regard to any particular waqf it is
proved that the Mutawallis have been in the practice of
nominating their successors, it is assumed that the practice had a
lawful origin and was founded on some provisions contained in
the waqfnama or some oral directions given by the waqif
G
empowering the Mutawallis to nominate their successors.
Provisions in the waqfnama empowering the Mutawallis to
nominate their successors are so usual that it would perhaps be
representing the present state of authorities if it were said that the
Courts assume the existence of such a provision in the dedication,
H
982 SUPREME COURT REPORTS [2019] 10 S.C.R.
A unless the contrary is proved… It will be seen therefore that a
claim based on the allegation either that the office is hereditary or
that the Mutawalli nominated the claimant as his successor must
ultimately have reference to the actual or the presumed
directions of the waqif at the time when the dedication was made.”
(emphasis supplied)
B
The above observations of the Court indicate that a claim of he-
reditary succession may be accepted if it is founded in a direction to that
effect by the waqif (i.e. the founder of the waqf). Such a direction may
be presumed from a practice of successive appointments made from
amongst the waqif’s family members.
C
However, in the above decision, the Court also observed that the
standard of proof in respect of such a custom would be stricter in the
case of a public waqf than for a waqf whose object was to provide for
the maintenance of the founder’s family. Hence, the High Court in the
said matter of Phatmabi rejected the claim of Phatmabi on the ground
D that she had only been able to show three successive appointments from
her family, and there was nothing to show such persons had succeeded
as a matter of right of inheritance.
Similarly, in Kalandar Batcha Sahib v. Jailani Sahib, AIR 1930
Mad 554, the plaintiff claimed a right to the office of the trustee, being
E the closest male heir of the predecessor. The High Court of Madras
held that while there was no absolute right to be appointed as a
hereditary trustee under Mahomedan law, when the founder intended
the position of trustee to be hereditary, such fact should be considered in
the appointment of trustees, unless there were strong reasons for doing
F otherwise. In this case, it was found that the history of devolution of the
trust, from the original founder of the trust onwards, showed that the
trustee was always appointed from the founder’s family, and hence the
office of the trustee was to be regarded as hereditary. Accordingly, the
suit was decreed.
G 20. It is also important to note that even the decisions which have
held that there is no right to hereditary succession to the office of
mutawalli under Muslim law do not support the appellants’ contention
that there cannot be an exception by way of custom to the general rule
affirmed in those decisions.
H
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v. 983
PATTAKAL CHERIYAKOYA [MOHAN M. SHANTANAGOUDAR, J.]
In Atimannessa (supra) and In ReMahomed Haji (supra),since A
the claimants did not plead the existence of a custom of hereditary suc-
cession, the Court did not have an occasion to rule on the aspect, and
hence both the decisions are silent in this regard. In Bebee Syedun
(supra), while it was held that in the absence of sufficient evidence of a
custom by descent, there would be a presumption against hereditary
B
succession to the office of mutawalli, crucially, the Court did not find
that such a custom could not exist at all. Rather, the claim was rejected
as the plaintiff had notgone back far enough to establish a custom, as he
had only shown three generations of succession to the office of mutawalli.
21. Finally, the Waqf Act, 1995 itself acknowledges that a waqf
may have a hereditary mutawalli. This is evident from the proviso to C
Section 69(2), dealing with the power of the Waqf Board to frame a
scheme for the administration of a waqf, which states that:
“Provided that where any such scheme provides for the removal
of any hereditary mutawalli, the scheme shall also provide for the
appointment of the person next in hereditary succession to the D
mutawalli so removed, as one of the members of the committee
appointed for the proper administration of the waqf.”
22. It can be concluded from the above discussion that a person
claiming a customary right to succeed to the office of mutawalli would
have to show that the waqif intended for the office to devolve through a E
practice of hereditary succession. In the absence of any express
directions in the waqfnama to this effect, the claimant would have to
show that such practice has been in existence throughout the history of
the trust, and not merely for a few generations, such that the waqif’s
intention that the office should be hereditary can be presumed. The F
burden of proof would be higher with respect to a public waqf, such as
the suit waqf in the instant case, than a family trust.
23. We may now consider what the principles governing the
establishment of a custom under Muslim law are. It is a settled position
of law that a custom in order to be legal and binding must be certain, G
reasonable and acted upon in practice for a long period with such
invariability and continuity that it has become the established governing
rule in a community by common consent. It is equally settled that it is
incumbent upon the party relying on the custom to plead and prove it.
H
984 SUPREME COURT REPORTS [2019] 10 S.C.R.
A In this regard, we may fruitfully refer to the following
observations from Fyzee’s Outlines of Muhammedan Law (5th edn.,
2008, Prof. Tahir Mahmood ed., p. 49) (for short “Fyzee”):
“First, the burden lies heavily upon the person who asserts to
plead the custom relied upon and prove clearly that he is
B governed by custom and not by the general law. Secondly, as to
the proof of custom, there is in law no presumption in favour of
custom and the custom must be ancient, certain and not opposed
to public policy.” (emphasis supplied)
The leading case with respect to the requirements of proving a
C custom is the decision of the Privy Council in H.H. Mir Abdul
Hussein Khan v. Bibi Sona Dero, AIR 1917 PC 181. Relying
upon its previous decision in Ramalakshmi Ammal v. Sivanantha
Perumal Sethurayar, (1871-72) 14 Moo IA 570, the Council
observed as follows:
D “It is of the essence of special usages modifying the ordinary law
of succession that they should be ancient and invariable: and it is
further essential that they should be established to be so by clear
and unambiguous evidence. It is only by means of such evidence
that the Courts can be assured of their existence, and that they
possess the conditions of antiquity and certainty on which alone
E their legal title to recognition depends.” (emphasis supplied)
24. Thus, we may conclude that while no person can claim the
office of mutawalli merely by virtue of being an heir of the waqif or the
original mutawalli, if they can show through a long-established usage or
custom that the founder intended that the office should devolve through
F hereditary succession, such usage or custom should be followed.
Additionally, the practice would have to comply with the requirements
which are generally applicable while proving a custom, i.e. it must be
specifically pleaded, and should be ancient, certain, invariable, not
opposed to public policy, and must be proved through clear and
G unambiguous evidence.
25. Whether the aforementioned requirements have been
satisfied in the present case or not is to be considered.
As far as the requirement of specific pleadings is concerned, we
find that the appellants’ argument that the respondents have not
H
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v. 985
PATTAKAL CHERIYAKOYA [MOHAN M. SHANTANAGOUDAR, J.]
specifically pleaded their customary right is patently incorrect, insofar A
as the respondents in paragraph 2 of their plaint in O.S. No. 1/1998 have
specifically pleaded that the office of the mutawalli is vested in the
Pattakal family ‘by virtue of immemorial custom and usage.’
26. Coming to the question of whether the respondents have
discharged the burden of proving a legal and binding custom in their B
favour.
As mentioned above, the Tribunal and the revisional Court have,
on facts, found that historical materials unanimously establish that Saint
Ubaidullawas the first mutawalli of the mosque, which was constructed
around the seventh century AD, and his descendants continued to hold C
the post after his death.
Additionally, the Tribunal and the High Court have taken note of
multiple documents placed on record by the respondents, showing that
the Pattakal family was managing the mosque property in an unbroken
chain of succession. These include, inter alia, Ex A1, a compromise D
petition dated 6.12.1892 acknowledging the rights of Pattakal Ahmed
Khadiyar Koya in the administration of the Jumah mosque, Ex A2,
another compromise petition of the year 1933 which refers to Pattakal
Kunhikoya as the Kazi, Ex A21, a complaint dated 22.03.1935 filed by
the mukri (muezzin) of the mosque against the then mutawalli Pattakal
Kunhikoya, Ex A3-5 and Ex A11,showing that Pattakal Koyammakoya E
was the mutawalli prior to his death in 1981, Ex A6-9, consisting of
demand notices and receipts for annual contributions made by the mosque,
which show that Patakkal Pookoya Thangal was Pattakal
Koyammakoya’s successor from 1981 till his death in 1996, and Ex
A17-20, which prove that the present mutawalli is Respondent No. 1 F
Patakkal Cheriyakoya. These documents establish that from 1892 to
present, it is the respondents’ family members who have been
succeeding to the office of mutawalli continuously. Therefore, it is proved
that the practice of succession of the respondents to the office of
mutawalli of the Jumah mosque has been in existence since antiquity,
and is certain and invariable. G
27. It may now be considered, firstly, whether the alleged
intervention of third parties have led to breaches in the invariability and
continuity of the custom, through the statutory appointment of a Kazi in
1998 and the appointment of a non-Pattakal Kazi in 1921 and 1923, and
secondly, whether the respondents have themselves committed such H
986 SUPREME COURT REPORTS [2019] 10 S.C.R.
A breaches through their predecessor’s participation in the committee
formed in 1966, and by entering into a compromise decree dated
16.02.1981.
28. With respect to the contention pertaining to the appointment
of a Kazi in 1998, it is admitted that one Kunnasada Hamzakoya was
B appointed as Kazi of Andrott Island under the Kazis Act, 1880. Previous
to this appointment, the respondents had challenged the government’s
notification inviting applications for the post before the High Court in
S.A. Thangal (supra), on the ground that their hereditary right to
succession to the office of Kazi would be abrogated by the statutory
appointment, but their petition was dismissed. It is on the basis of this
C judgment that the government proceeded to appoint such Kazi.
As was rightly observed by the High Court, the Tribunal’s finding
that the Pattakal family had lost its vested right in the office of mutawalli,
based on the finding in S.A. Thangal that they had no hereditary right to
the office of Kazi of the mosque, was based on a wrong understanding
D of facts and law. The dictum laid down in S.A. Thangal, which was
heavily relied upon by the appellants during their arguments before this
Court, will not come to the aid of the appellants in this matter, inasmuch
as the said judgement was rendered in a different context. It is no doubt
true that in S.A. Thangal, it was observed that the petitioner therein
E (who was a member of the Patakkal family) could not claim that the
position of Kazi was hereditary in nature, particularly after the coming
into force of the Kazis Act, 1880 (which was made applicable to
Lakshadweep in the year 1970). However, the judgment also
acknowledged that by virtue of Section 4 of the Kazis Act, if the
respondents were performing the functions of a traditional Kazi prior to
F enforcement of the Act, they could continue to do so, notwithstanding
the appointment of another person as a Kazi under the Act. This is
evident from the operative portion of the judgement, which reads thus:
“13. Therefore, the petitioner cannot claim that the position of
Kazi is hereditary in nature. Even if the petitioner’s contention
G that he succeeds to the deceased Kazi, the position being
hereditary in nature, is accepted, that will not prevent the Admin-
istration choosing a Kazi in terms of the Kazis Act. Appointment
of Kazi made under the Act shall not be deemed to prevent any
person discharging any of the functions of the Kazi as per Section
H 4 of the said Act.” (emphasis supplied)
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v. 987
PATTAKAL CHERIYAKOYA [MOHAN M. SHANTANAGOUDAR, J.]
The relevant section in this regard, Section 4(c) of the Kazis Act, A
1880 reads as follows:
“4. Nothing in Act to confer judicial or administrative
powers; or to render the presence of Kazis necessary; or
to prevent any one acting as Kazi: Nothing herein contained,
and no appointment made hereunder, shall be deemed… B
(c) to prevent any person discharging any of the functions of a
Kazi.” (emphasis supplied)
Hence, even as per the decision in S.A. Thangal, the respondents
could discharge some of the functions of a traditional Kazi despite the
appointment of a different person as a Kazi under the Kazis Act. C
From the aforementioned discussion, we can conclude that the
appellants’ contention that the post of Kazi and mutawalli was the same
in Lakshadweep islands and therefore if the respondents have lost the
right to one office, they cannot claim the other is only partly correct. We
say so because, it is true that prior to the enforcement of the Wakf Act, D
1954 in the year 1968 in the Lakshadweep islands, the word ‘mutawalli’
was not in use on the islands, and the word ‘Kazi’ encompassed a person
functioning as mutawalli of a mosque. This has also been noted by the
Tribunal in its judgement. However it is incorrect to say that the person
who was working as mutawalli/Kazi loses the post of mutawalli also E
after he lost the post of Kazi.
The office of Kazi disputed in S.A. Thangalis a statutory
appointment under the Kazis Act, 1880. It can be inferred that after the
enforcement of the Kazis Act in 1970, a legal distinction between the
office of mutawalli and statutory office of Kazi came into play in the F
Lakshadweep islands. The Kazis Act pertains to the appointment of a
Kazi for a local area where his presence may be required for performing
certain rites and ceremonies, whereas the respondents in their plaint
have clearly stated that they are claiming the office of “mutawalli-cum-
Traditional Kazi” of the Jumah mosque specifically. They are not
contesting the decision in S.A. Thangal or seeking appointment to the G
statutory post of Kazi.
Therefore, we find that the High Court has rightly concluded that
at the time of the institution of OS No. 1/1998, the respondents were
within their rights to seek the relief of the office of mutawalli even after
H
988 SUPREME COURT REPORTS [2019] 10 S.C.R.
A their claim to the office of Kazi was defeated. Further, given the distinction
between a statutory Kazi and a mutawalli, the appointment of Kunnasada
Hamzakoya in 1998 will not constitute a breach of the respondents’
custom in respect of the office of mutawalli.
We would like to emphasize that we have not been called upon to
B decide whether the respondents have a customary right to be the Kazi
of the mosque, since the decision in S.A. Thangal is not in challenge
before us. Therefore, we desist from looking any further into the matter.
29. The appellants’ argument that the respondents’ claim to the
office of mutawalli is defeated by the appointment of certain third parties
C as Kazis in the 1920s, i.e. before the enforcement of Kazis Act,1880 in
the area, must also be considered in the light of the above discussion.
The appellants have relied on Ex B8 and Ex B9 in this respect.
Ex B8 is letter of Kazi Sayedkoya dated 25.05.1921 informing Amin
Kachery, Andrott that his uncle Attakoya Thangal had been functioning
D as Kazi in his place while he was travelling, and that Kazi Sayedkoya
had subsequently resumed the post. Ex B9 is the order of R.H. Ellis
dated 12.02.1923 which inter alia assigned one Shaikinteveedu Kunhikoya
to be the karnavar of Andrott and one Kasmikoya to perform the functions
of Kazi of the mosque. The appellants claim that these documents show
that the Pattakal family was not managing the mosque in that period.
E
The respondents have not challenged the validity of the above
documents. In fact, we find that in Ex B5, it has been admitted by
Pattakkal Koyammakoya (the respondents’ predecessor), who was the
plaintiff in O.S. No. 10/1974, in which the compromise decree dated
16.02.1981 was passed, that the Shaikinteveedu family, to which the
F Kazis appointed in 1921 and 1923 belonged, does not belong to the
Pattakkal tharawad. He further admitted that Sayedkoya was appointed
by the people as Kazi due to hostility towards the Pattakkal family, and
the government had accepted such appointment. After Sayedkoya’s
tenure expired, nobody from Sayedkoya’s family was appointed and all
G the succeeding Kazis were from the Pattakal family. It can be inferred
that even prior to the enforcement of the Kazis Act, the government
appointed a Kazi for Andrott Island, for a limited duration only, on the
request of the inhabitants. Therefore, such appointment would not
prejudice the respondents’ customary right to manage the Jumah mosque.
H
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v. 989
PATTAKAL CHERIYAKOYA [MOHAN M. SHANTANAGOUDAR, J.]
In any event, a singular artificial break or gap in the exercise of a A
customary right, that too by executive orders, would not lead to abrogation
of the customary right itself, unless such break constitutes a recurring
infringement or leads to conferment of title in the opposite party (see the
decisions of the Madras High Court in Muniandi Kone v. Sri
Ramanatha Sethupathi, AIR 1982 Madras 170, and K.A Srinivasa
B
Ayyangar v. S. Ramanujachariar, 1941 (1) M.L.J 322). The appellants
have not been able to show that apart from the instances mentioned in
Ex B8 or B9, anybody else was functioning as the Kazi-cum-mutawalli
of the mosque since ages prior to the filing of the suit, so as to constitute
a recurring infringement or to confer title upon a third party. On the
other hand, the respondents have produced considerable documentary C
evidence to show that members of the Pattakal family were functioning
as mutawalli since the establishment of the mosque. Thus, the appellants’
argument in this regard fails.
30. We must now consider whether the appellants have been able
to prove that the respondents had themselves breached their customary D
right such that the custom was abrogated. Learned counsel for the
appellants firstly drew our attention to Ex B5, the deposition of Patakkal
Koyammakoya, plaintiff in O.S. No. 10/1974, mentioned supra. He
admitted that a committee was formed on 25.11.1966, composed of 14
members from 4 localities of Andrott Island, of which he was President.
Hence, the appellants contend that the respondents cannot claim that it E
was just a repair committee and not for the management of the mosque.
It is true that in Ex B5, Patakkal Koyammakoya admitted to the
formation of the committee in 1966. However, he had earlier categorically
deposed that the committee was for overseeing the repair and
maintenance work of the mosque. Moreover, in his cross-examination, F
he stated that though he was continuously elected as President of the
committee, he could not remember whether a committee was elected
after 1972. He also stated that there was no committee on the date of
deposition (i.e. 30.04.1977). Therefore, it is evident that the committee
was only in existence from 1966 to 1972 and that too only to advise the G
mutawalli in relation to the repair and maintenance of the mosque. It
must also be noted that both the Tribunal and the High Court have found
that the appellants have not produced any documentary evidence to
controvert the deposition in Ex B5, and to show that a committee was
H
990 SUPREME COURT REPORTS [2019] 10 S.C.R.
A functioning for the management of the mosque after 1972. We find
ourselves in agreement with the said finding.
On the other hand, we find merit in the respondents’ submission
that the entries made in and around 1967 regarding the Jumah mosque in
the List of Wakfs and the Register of Wakfs under the Wakf Act, 1954,
B mentioned supra, evidence that the office of mutawalli was customarily
vested in the respondents, and not in the committee, during the period to
which the entries pertain. Since the List of Wakfs (Ex A3) relied upon
by the respondents is a Gazette notification, the entry contained therein
showing that the office of mutawalli was held by the Patakkal family
will constitute a relevant fact under Sections 35, 45 and 81 of the Evidence
C Act, as mentioned in our discussion supra pertaining to the relevance of
the Gazetteer’s Report of 1977.
Further, it must be noted that the List of Wakfs is published only
after the Survey Commissioner has conducted a preliminary enquiry
into the waqf property and after the Commissioner’s report is examined
D by the Waqf Board under Sections 4 and 5 of the Wakf Act, 1954. Both
the Tribunal and the High Court have concurrently found that it is an
admitted fact that an enquiry was made by the Waqf Board pertaining to
the Jumah mosque in 1967. Appellant No. 1 had also deposed before the
Tribunal about having participated in this enquiry, after which the List
E was published. Thereafter, no complaint was made against the entry in
the List. Hence, the appellants cannot at this stage claim that the entry
made is incorrect.
The Register of Wakfs is prepared by the Wakf Commissioner,
an official appointed by the State Government, hence an entry made
F therein is an entry made by a public official in performance of his official
duty and is considered a relevant fact under Section 35 of the Evidence
Act. Hence the entry made in the Register of Wakfs (Ex A4) showing
Pattakal Koyammakoya as the mutawalli of the Jumah mosque is a
relevant fact for the purpose of deciding this dispute.
G 31 It is apposite to note that the Tribunal found that there was a
discrepancy insofar as the List of Wakfs mentioned that the Pattakal
mutawalli was under the supervision of Amins and Karanavans, whereas
the Register entry only mentioned Pattakal Koyammakoya as the
mutawalli. As mentioned supra, the appellants have also claimed that
the mosque was managed under the ‘Amin and Karanavan’ system. In
H
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v. 991
PATTAKAL CHERIYAKOYA [MOHAN M. SHANTANAGOUDAR, J.]
this regard, it must be noted that while evaluating the respondents’ claim A
to a customary right to the office of mutawalli, the social conditions in
which this right was exercised must be taken into account. The following
observations of Fyzee (5th edn., 2008) on page 50 are relevant in this
respect:
“As to the evidence of custom, specific instances of its acceptance B
as law may be proved; such evidence may be supplemented by
general evidence; previous decisions in which the custom has been
accepted as binding are important pieces of evidence but their
reasoning may not be binding; the court must scrutinize the custom
set up jealously and must be careful not to be misled by pitfalls
due to unfamiliarity with social conditions.” C
We find it relevant to discuss what the entry in the List of Waqfs
showing that the mosque was under the supervision of Amins and
Karanavans precisely means, since this was the broader social backdrop
in which the respondents’ custom existed. A perusal of the “Report of
the Commissioner for the Scheduled Castes and Scheduled Tribes” for D
the year 1953, on page 284, reveals that the Amin is the executive officer
appointed by the government for the Lakshadweep islands. The
Karanavans are the heads of different local families who are appointed
to assist the Amin in trying civil and criminal cases. Hence, these are
executive authorities which are separate from the mutawalli of a mosque. E
The Tribunal itself has noted in its judgement that the Jumah mosque
may have been under the supervision of the then administrative authorities
as it was a very important mosque on Andrott Island, but the Aminsand
Karanavans were not directly managing the affairs of the mosque.
Therefore, we find that the mention of the ‘Amin and Karanavan’ system
in the List of Waqfs will not weaken the respondents’ argument based F
upon reliance on such List.
Though it is possible that the mutawalli belonging to the
respondents’ family may have been advised by other authorities, this
does not mean the respondents per se did not hold the office of mutawalli.
Hence we are unable to accept the appellants’ argument that the G
respondent’s customary right was breached due to the presence of
advisory authorities such as the Amins and Karanavans or the committee
formed in 1966. Rather, it strengthens the argument in favour of the
respondents, to show that notwithstanding the changes in the
administrative mechanism of Andrott Island over the years, which is H
992 SUPREME COURT REPORTS [2019] 10 S.C.R.
A inevitable in any territory, it is the Patakkal family which has been at the
helm of affairs at the mosque.
32. We also find ourselves unable to agree with the contention of
the appellants that the violations of Order XXIII Rule 3B, CPC while
passing the compromise decree dated 16.02.1981 in O.S. No. 10/1974
B are merely procedural and do not vitiate the decree, and that the decree
should therefore be regarded as proof of breach of custom.
Under Order I Rule 8, CPC, which pertains to representative
suits, a person may sue or defend on behalf of others and for the benefit
of others having the same interest, with the permission of the Court. The
C object of Order I Rule 8 is to facilitate the decision of questions in which
a large number of persons are interested without recourse to ordinary
procedure. Per Order XXIII Rule 3B, in order to compromise in a
representative suit, it is necessary to obtain the leave of the Court. Before
grant of leave to compromise, the Court needs to give notice in such a
manner as it may think fit, to such persons as may appear to it to be
D interested in the suit.
It is pertinent to note that it is not clear whether the suit in O.S.
No. 10/1974 was filed under Order I Rule 8 or not. Even assuming that
we accept the respondents’ contention that the said suit was not strictly
filed under Order I Rule 8, it would be regarded in the nature of a
E representative suit for the purposes of Explanation (c) to Order XXIII
Rule 3B. Explanation (c) provides that the term ‘representative suit’
includes suits where the compromise decree passed therein becomes
binding on persons not named as parties to the suit. In O.S. No. 10/1974,
Pattakal Koyammakoya was representing the respondent family’s
F interests in his capacity as Karanavan of the family. Hence the
compromise decree, if upheld, would prejudice the family’s customary
right to the office of mutawalli and the terms thereof would become
final and binding by virtue of Section 96(3), CPC. Thus, it is clear that
the two conditions mentioned supra in relation to representative suits
have to be complied with if the compromise decree passed in O.S. No.
G 10/1974 is to be held valid.
The Tribunal as well as the High Court, on considering the
compromise decree passed and the records thereof, have on facts
concluded that the parties to the decree did not obtain leave of the court
and did not give notice to other persons who were interested in the suit,
H
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v. 993
PATTAKAL CHERIYAKOYA [MOHAN M. SHANTANAGOUDAR, J.]
i.e., members of the Pattakal family, as required under Order XXIII A
Rule 3B. The appellants before this court have also not disputed that the
compromise decree was without leave of the court and without notice to
interested family members. As is evident from the foregoing discussion,
such violations of Order XXII Rule 3-B cannot be said to be merely
procedural, and go to the root of the matter since they deprive the affected
B
parties of the chance to question the terms of the compromise that they
are going to be bound by. Since both the conditions required under Order
XXIII Rule 3B were not complied with, the compromise decree was
void.
Further, we find that in addition to the above procedural violation,
the compromise decree is also illegal insofar as it fails to comply with C
Section 60 of the Wakf Act, 1954, which provides that no suit in any
Court by or against the mutawalli of a wakf relating to the rights of the
mutawalli shall be compromised without the sanction of the Wakf Board.
Rather than obtaining the sanction of the Wakf Board prior to the decree,
the compromise decree mentions in paragraph 7 that the decisions taken D
therein are to be subsequently intimated to the Wakf Board. Hence,
we find ourselves in agreement with the findings of the lower Courts
that the compromise decree was illegal and void.
Moreover, as rightly argued by learned counsel for the respondents
by placing reliance on Sardar Bibi (supra), which has also been E
favourably cited by Mulla (21st edn., 2017) on page 14, the abrogation
of custom cannot be inferred from a mere individual declaration (i.e. the
admissions made by Pattakal Koyammakoya Thangal in the decree) in
the absence of any continuous course of conduct by the family to that
effect. The respondents’ family was not given notice before passing of
the compromise decree and did not have any say with respect to the F
terms framed therein, and hence it cannot be said that the decree is
binding against them.
33. Thus, we are of the view that the appellants have not been
able to establish that there was a breach in the respondents’ customary
right of holding the post of mutawalli due to the formation of the committee G
in 1966 which existed till 1972 or due to the compromise decree which is
declared as void.
34. Learned counsel for the appellants argued that even if it is
proved that the respondents have a customary right, such custom violates
H
994 SUPREME COURT REPORTS [2019] 10 S.C.R.
A public policy and is unreasonable, as one family should not be allowed to
monopolize the management of a public waqf. We are unable to agree
with this contention. There cannot be any dispute that the mutawalli has
no right in the property belonging to the waqf, and is merely a
superintendent or manager. Hence, the respondents’ right to office of
mutawalli does not divest the waqf of its public character. Moreover,
B
the exercise of any customary right to succession will be necessarily
subject to the provisions of the Waqf Act, 1995, which provides broad
powers to the Waqf Board for supervising the administration of a waqf.
For example, Section 64 of the Waqf Act, 1995 provides for the removal
of the mutawalli, and Section 69 of the Act deals with the power of the
C Board to frame a scheme for the administration of the waqf under certain
contingencies.
We also find it relevant to refer to the following observations of
the Bombay High Court in In re Mahomed Haji Haroon (supra), which
were made in the context of a waqf created for charitable purposes:
D “In accordance with generally prevalent Muslim sentiments,—
and the law of waqifs supports these sentiments,—members of
the family of the waqif ought to be given preference in appointment
as trustees…I do not, therefore (in spite of the deference I should
like to show to the Advocate General’s point that unless outsiders
E are appointed as trustees the trust may become entirely a family
affair) consider that there must necessarily be any outsider
amongst the trustees. On the contrary I think the Muslim law
does not dread the management of waqifs being retained in the
family of the waqif. It disapproves of the introduction of an outsider
in the administration at least of such a trust as is before me, unless
F the members of the waqif’s family show their unfitness to be
trustees. I take this opportunity, however, of observing that though
descendants of the waqif are favoured by the Court, when
appointing a mutawalli, this does not mean that they have a
hereditary right to be mutawallis, still less that their descent will
G protect them from removal if there is any mismanagement. The
trustees that are now being appointed ought to be particularly
careful in the administration of the trust. They should utilize the
funds for such purposes and in such a manner that there may not
be the least ground for any aspersion being cast against them. No
suspicions should be allowed to arise that the funds are not being
H
ALIYATHAMMUDA BEETHATHEBIYYAPPURA POOKOYA v. 995
PATTAKAL CHERIYAKOYA [MOHAN M. SHANTANAGOUDAR, J.]
utilized for the most suitable and proper objects. Every portion of A
the funds should be manifestly put to uses entirely in accordance
with the principles of Islam, which is a progressive and enlightened
religion.”
As noted in the above decision, even if the mutawalli belongs to
the family of the waqif, he is not immune from removal in the case of B
mismanagement of the waqf, and must administer the waqf in accordance
with the principles of common prudence and probity. Having regard to
the above principle, and to the provisions of the Waqf Act which take
care of contingencies in case of mismanagement, etc., it cannot be said
that the respondents’ exercise of customary right to the office of mutawalli
is unreasonable orviolates public policy. C
35. In light of the foregoing discussion, we have no hesitation to
reach the conclusion that the respondents have been able to establish a
customary right to the office of mutawalli of the Jumah mosque, under
the facts and circumstances of this case, which is not unreasonable or
opposed to public policy. The respondents have through clear and D
unambiguous evidence shown a practice of continuous and invariable
devolution of the office of mutawalli through successive appointments
from within the Patakkal family, beginning with the institution of the
mosque itself. Adopting the principle enunciated in Phatmabi and
Kalandar Sahib (supra), we find that this evidence is sufficient to draw E
a presumption that such hereditary devolution was as per the intention
of Ubaidulla, the original wakif, therefore also satisfying the specific
requirements mentioned supra for proving a custom of hereditary
succession to the office of mutawalli.
36. Therefore, the appeals are dismissed and the impugned F
judgment and order is confirmed.
Divya Pandey Appeals dismissed.
G
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Muslim law"Sign in to search