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 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 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 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 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 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. 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, i.e., members of the Pattakal family, as
required under Order XXIII 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 3B
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 the
conditions required under Order XXIII Rule 3B were not complied
with, the compromise decree was void.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9586 OF 2010
ALIYATHAMMUDA BEETHATHEBIYYAPPURA
POOKOYA Vs PATTAKAL CHERIYAKOYA
Dated:August 1, 2019.
MOHAN M. SHANTANAGOUDAR, J.
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 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. 9587/2010 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 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
2
from amongst 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
(sermongivers)
in the mosque. The appellants in the connected
appeals C.A. Nos. 9587/2010 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 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 19661972.
The president of
such committee from 19661972
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. 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,
3
management of the mosque broke down. However, their common
claim is that the respondents never had a customary right to the
office of 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 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 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 was being managed by an elected committee. Though the
4
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 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 mosque. Against this judgment, the
respondents filed a revision petition 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 19661972
was only a committee for overseeing the repairs and
maintenance of the mosque, and not for management thereof,
and agreed with the Tribunal’s reasoning with respect to the
5
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.
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.
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 reappreciating
the evidence on record; and that the High
Court has decreed the respondents’ customary right by placing
reliance upon legends, mythologies, fiction 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 was written by his uncle’s brotherinlaw.
6
According to the appellants, it was purposefully written to
support the respondents’ case. Reliance was also placed upon Ex
B8 and Ex B9 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 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 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.
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.
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.
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.
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 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 Ex A3, 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
receipt for wakf registration dated 5.3.1967 respectively, both of
which 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 appellants before the
9
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 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 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 was not only illegal but also void; that merely
because of certain small gaps in the 1920s in which the Pattakal
10
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 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
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 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 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,
11
reverse or modify such 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 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 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 reappraise
the evidence (see Ram Dass v.
Ishwar Chander, (1988) 3 SCC 131). It is in this perspective that
the argument of the appellants must be considered.
12
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 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 that Ubaidulla was an alien who could not have owned
land on the island, 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 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
13
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 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 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 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 the office
14
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 nonmentioning
of this office in the 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 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 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 16 that
15
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 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.
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 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.
16
We agree with the opinion of the High Court that since
this issue relates to a mosque constructed almost 13001400
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 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.
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 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 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
17
of the factinissue
(see 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 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 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
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 economy, etc., all of which constitute historical
facts, and these materials qualify as historical literature. Hence,
18
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 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
mutawalli of the mosque since its establishment.
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 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
19
mutawalli. In Atimannessa Bibi v. Abdul Sobhan, (1916) 43 Cal
467, the High Court 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 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 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, 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:
20
(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)
A similar observation has been made by Mulla in
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 by custom, in which case,
the custom should be followed.” (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 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
21
case that in cases of succession 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 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
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 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 empowering the Mutawallis to
nominate their successors. Provisions in the
waqfnama empowering the Mutawallis to nominate
22
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, 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)
The above observations of the Court indicate that a claim
of hereditary 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.
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 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.
23
Similarly, in Kalandar Batcha Sahib v. Jailani Sahib,
AIR 1930 Mad 554, the plaintiff claimed a right to the office of the
trustee, being 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 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.
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.
In Atimannessa (supra) and In Re Mahomed Haji
(supra), since the claimants did not plead the existence of a
24
custom of hereditary succession, 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 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 not gone 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 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
mutawalli so removed, as one of the members of
the committee appointed for the proper
administration of the waqf.”
25
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 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 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, 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.
26
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 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 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, (187172)
14 Moo IA 570, the
Council observed as follows:
“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 their legal title
to recognition depends.” (emphasis supplied)
27
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 longestablished
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 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.
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 specifically pleaded their customary right is
patently incorrect, insofar as the respondents in paragraph 2 of
their plaint in O.S. No. 1/1998 have specifically pleaded that the
28
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 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 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 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
29
filed by the mukri (muezzin) of the mosque against the then
mutawalli Pattakal Kunhikoya, Ex A35
and Ex A11, showing
that Pattakal Koyammakoya was the mutawalli prior to his death
in 1981, Ex A69,
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 A1720,
which prove that the present mutawalli is Respondent No. 1
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.
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 nonPattakal
Kazi in 1921 and 1923, and secondly, whether the
30
respondents have themselves committed such 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 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 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 of facts and law. The
dictum laid down in S.A. Thangal, which was heavily relied upon
31
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 (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 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 that he succeeds to the
deceased Kazi, the position being hereditary in
nature, is accepted, that will not prevent the
Administration 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 4 of the
said Act.” (emphasis supplied)
32
The relevant section in this regard, Section 4(c) of the
Kazis Act, 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…
(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.
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, 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
33
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 after he lost the post of Kazi.
The office of Kazi disputed in S.A. Thangal is 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 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 “mutawallicumTraditional
Kazi” of the
Jumah mosque specifically. They are not contesting the decision
in S.A. Thangal or seeking appointment to the 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 their claim to the office of Kazi was
defeated. Further, given the distinction between a statutory Kazi
34
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 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 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 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
35
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.
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 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 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
36
appointment would not prejudice the respondents’ customary
right to manage the Jumah mosque.
In any event, a singular 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 (see the decisions of the Madras High
Court in Muniandi Kone v. Sri Ramanatha Sethupathi, AIR
1982 Madras 170, and K.A Srinivasa 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 Kazicummutawalli
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 mutawalli since the
establishment of the mosque. Thus, the appellants’ argument in
this regard fails.
37
30. We must now consider whether the appellants have been
able to prove that the respondents had themselves breached their
customary 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 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 crossexamination,
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
38
in existence from 1966 to 1972 and that too only to advise the
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 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, 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
39
of the Evidence 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 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 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 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
40
as the mutawalli of the Jumah mosque is a relevant fact for the
purpose of deciding this dispute.
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 this regard, it must
be noted that while evaluating the respondents’ claim 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 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.”
41
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 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. 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 Amins and 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 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 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 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 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 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 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 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 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. 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, i.e., members of the Pattakal family, as
required under Order XXIII 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 3B
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 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 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 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 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
46
respondents’ family was not given notice before passing of the
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.
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 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 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, the exercise
of any customary right to succession will be necessarily subject to
the provisions of the Waqf Act, 1995, which provides broad
47
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 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:
“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 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 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
protect them from removal if there is any
48
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 utilized
for the most suitable and proper objects. Every
portion of 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 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 or violates public policy.
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
49
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. Adopting the principle enunciated in Phatmabi and
Kalandar Sahib (supra), we find that this evidence is sufficient
to draw 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
judgment and order is confirmed.
……..……………………………….. J.
(MOHAN M. SHANTANAGOUDAR)
………………………………. J.
(AJAY RASTOGI)
New Delhi;
August 1, 2019.
Print Page
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 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 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 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 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 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. 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, i.e., members of the Pattakal family, as
required under Order XXIII 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 3B
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 the
conditions required under Order XXIII Rule 3B were not complied
with, the compromise decree was void.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9586 OF 2010
ALIYATHAMMUDA BEETHATHEBIYYAPPURA
POOKOYA Vs PATTAKAL CHERIYAKOYA
Dated:August 1, 2019.
MOHAN M. SHANTANAGOUDAR, J.
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 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. 9587/2010 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 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
2
from amongst 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
(sermongivers)
in the mosque. The appellants in the connected
appeals C.A. Nos. 9587/2010 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 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 19661972.
The president of
such committee from 19661972
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. 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,
3
management of the mosque broke down. However, their common
claim is that the respondents never had a customary right to the
office of 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 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 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 was being managed by an elected committee. Though the
4
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 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 mosque. Against this judgment, the
respondents filed a revision petition 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 19661972
was only a committee for overseeing the repairs and
maintenance of the mosque, and not for management thereof,
and agreed with the Tribunal’s reasoning with respect to the
5
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.
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.
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 reappreciating
the evidence on record; and that the High
Court has decreed the respondents’ customary right by placing
reliance upon legends, mythologies, fiction 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 was written by his uncle’s brotherinlaw.
6
According to the appellants, it was purposefully written to
support the respondents’ case. Reliance was also placed upon Ex
B8 and Ex B9 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 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 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.
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.
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.
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.
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 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 Ex A3, 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
receipt for wakf registration dated 5.3.1967 respectively, both of
which 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 appellants before the
9
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 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 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 was not only illegal but also void; that merely
because of certain small gaps in the 1920s in which the Pattakal
10
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 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
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 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 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,
11
reverse or modify such 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 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 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 reappraise
the evidence (see Ram Dass v.
Ishwar Chander, (1988) 3 SCC 131). It is in this perspective that
the argument of the appellants must be considered.
12
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 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 that Ubaidulla was an alien who could not have owned
land on the island, 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 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
13
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 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 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 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 the office
14
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 nonmentioning
of this office in the 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 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 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 16 that
15
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 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.
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 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.
16
We agree with the opinion of the High Court that since
this issue relates to a mosque constructed almost 13001400
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 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.
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 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 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
17
of the factinissue
(see 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 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 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
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 economy, etc., all of which constitute historical
facts, and these materials qualify as historical literature. Hence,
18
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 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
mutawalli of the mosque since its establishment.
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 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
19
mutawalli. In Atimannessa Bibi v. Abdul Sobhan, (1916) 43 Cal
467, the High Court 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 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 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, 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:
20
(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)
A similar observation has been made by Mulla in
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 by custom, in which case,
the custom should be followed.” (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 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
21
case that in cases of succession 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 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
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 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 empowering the Mutawallis to
nominate their successors. Provisions in the
waqfnama empowering the Mutawallis to nominate
22
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, 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)
The above observations of the Court indicate that a claim
of hereditary 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.
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 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.
23
Similarly, in Kalandar Batcha Sahib v. Jailani Sahib,
AIR 1930 Mad 554, the plaintiff claimed a right to the office of the
trustee, being 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 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.
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.
In Atimannessa (supra) and In Re Mahomed Haji
(supra), since the claimants did not plead the existence of a
24
custom of hereditary succession, 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 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 not gone 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 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
mutawalli so removed, as one of the members of
the committee appointed for the proper
administration of the waqf.”
25
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 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 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, 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.
26
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 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 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, (187172)
14 Moo IA 570, the
Council observed as follows:
“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 their legal title
to recognition depends.” (emphasis supplied)
27
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 longestablished
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 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.
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 specifically pleaded their customary right is
patently incorrect, insofar as the respondents in paragraph 2 of
their plaint in O.S. No. 1/1998 have specifically pleaded that the
28
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 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 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 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
29
filed by the mukri (muezzin) of the mosque against the then
mutawalli Pattakal Kunhikoya, Ex A35
and Ex A11, showing
that Pattakal Koyammakoya was the mutawalli prior to his death
in 1981, Ex A69,
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 A1720,
which prove that the present mutawalli is Respondent No. 1
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.
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 nonPattakal
Kazi in 1921 and 1923, and secondly, whether the
30
respondents have themselves committed such 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 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 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 of facts and law. The
dictum laid down in S.A. Thangal, which was heavily relied upon
31
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 (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 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 that he succeeds to the
deceased Kazi, the position being hereditary in
nature, is accepted, that will not prevent the
Administration 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 4 of the
said Act.” (emphasis supplied)
32
The relevant section in this regard, Section 4(c) of the
Kazis Act, 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…
(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.
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, 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
33
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 after he lost the post of Kazi.
The office of Kazi disputed in S.A. Thangal is 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 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 “mutawallicumTraditional
Kazi” of the
Jumah mosque specifically. They are not contesting the decision
in S.A. Thangal or seeking appointment to the 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 their claim to the office of Kazi was
defeated. Further, given the distinction between a statutory Kazi
34
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 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 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 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
35
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.
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 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 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
36
appointment would not prejudice the respondents’ customary
right to manage the Jumah mosque.
In any event, a singular 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 (see the decisions of the Madras High
Court in Muniandi Kone v. Sri Ramanatha Sethupathi, AIR
1982 Madras 170, and K.A Srinivasa 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 Kazicummutawalli
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 mutawalli since the
establishment of the mosque. Thus, the appellants’ argument in
this regard fails.
37
30. We must now consider whether the appellants have been
able to prove that the respondents had themselves breached their
customary 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 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 crossexamination,
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
38
in existence from 1966 to 1972 and that too only to advise the
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 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, 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
39
of the Evidence 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 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 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 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
40
as the mutawalli of the Jumah mosque is a relevant fact for the
purpose of deciding this dispute.
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 this regard, it must
be noted that while evaluating the respondents’ claim 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 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.”
41
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 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. 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 Amins and 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 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 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 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 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 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 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 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 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. 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, i.e., members of the Pattakal family, as
required under Order XXIII 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 3B
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 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 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 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 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
46
respondents’ family was not given notice before passing of the
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.
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 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 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, the exercise
of any customary right to succession will be necessarily subject to
the provisions of the Waqf Act, 1995, which provides broad
47
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 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:
“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 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 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
protect them from removal if there is any
48
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 utilized
for the most suitable and proper objects. Every
portion of 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 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 or violates public policy.
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
49
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. Adopting the principle enunciated in Phatmabi and
Kalandar Sahib (supra), we find that this evidence is sufficient
to draw 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
judgment and order is confirmed.
……..……………………………….. J.
(MOHAN M. SHANTANAGOUDAR)
………………………………. J.
(AJAY RASTOGI)
New Delhi;
August 1, 2019.
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