Aliyathammuda Beethathebiyyappura Pookoya & Anr. vs Pattakal Cheriyakoya & Ors.

Code of Civil Procedure, 1908 – Or. I, r.8 and Or. XXIII, r.3B – Representative suit – Compromise decree – When void – Discussed.

Customary Law – Claim as to a customary right to succeed to the office of mutawalli – Proof of – Held: A person claiming a customary right to succeed to the office of mutawalli would have to show that the waqif (founder of the waqf) intended for the office to devolve through a practice of hereditary succession – In the absence of any express directions in the waqfnama to this effect, the claimant would have to show that such practice has been in existence throughout the history of the trust, and not merely for a few generations – Burden of proof would be higher with respect to a public waqf, than a family trust – Muslim Law. Dismissing the appeals, the Court

HELD: 1.1 Ordinarily, while revisional jurisdiction does not 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. 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 re-appraise the evidence (Ram Dass v. Ishwar Chander, (1988)

3 SCC 131). It is not disputed that Ubaidulla had come to Andrott and converted the people of the island from Hinduism to Islam. The High Court was rightly of the opinion the Tribunal need not have probed further for positive proof after noting all the historical facts proved. Thus, the High Court in the impugned judgment has not entered into a rehearing or reassessment of the findings of fact arrived at by the Wakf Tribunal. Rather, the Court has rightly noted that the Tribunal did not apply the appropriate standard of proof to be applied in a civil suit, i.e. the standard of preponderance of probability. Therefore, it cannot be said that the High Court exceeded the scope of its revisional jurisdiction in any manner. [Paras 12, 13] [976-D-G; 977-C-D]

1.2 The Tribunal in its judgment specifically noted that the partition deeds only relate to the division of properties within the tharawad and do not deal with the right of management of the mosque. The respondents themselves are claiming the office of mutawalli as a customary right, not as a proprietary right. It has even been admitted by counsel for the appellants during the course of arguments that the same cannot be a proprietary right. Hence, the partition deeds could not have made any provision with respect to the office of mutawalli, and the non-mentioning of this office in the partition deeds will not prejudice the claim of the respondents to a customary right to succeed to this office. [Para 14] [977-F-G]

1.3 Since this issue relates to a mosque constructed almost 1300-1400 years ago, it is impossible to find contemporary proof of the construction of the same. The Gazetteer for the Lakshadweep Islands, as recently as 1977, has recorded that Ubaidulla was the first musaliyar in Andrott and is buried in the Andrott mosque. The Gazetteer, as well as the then Collector, gave credence to this account in spite of inaccuracies relating to the date of conversion of the inhabitants. The Gazette is an official record evidencing public affairs, and its genuineness is presumed under Section 81 of the Evidence Act, 1872. Moreover, under 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 of the factin-issue (Bala Shankar Mana Shankar Bhattjee v. Charity Commissioner, Gujarat State, 1994 Suppl. (2) SCR 687). Such a record cannot be challenged by the appellants merely on the ground that it is not a recent publication. Moreover, irrespective of the date of conversion of the island’s inhabitants, had Ubaidulla not had a significant connection to the mosque, there would have been no reason for him to be buried there and for the tomb to be venerated. Even if the book (Ex A37) is disregarded on the ground 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, the appellants’ contention that these materials are legendary or mythological in nature, disagreed with. The appellants, on the other hand, have not produced any contrary historical opinion that states that Ubaidulla was not the first mutawalli and that his descendants did not continue to hold the office of mutawalli, or any historical proof to show that the mosque was being managed by local residents or by a committee. Thus, 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. [Para 15] [978-F-H; 979-A-G]

1.4 It is not under dispute that this office can be customary. This is also evident from the definition of ‘mutawalli’ in Section 3(i) of the Waqf Act, 1995, which includes a person who is mutawalli by virtue of any custom. Muslim law does not recognize an inherent right of succession to the office of mutawalli. However, various scholars on Muslim law have opined that such a right may be shown on the basis of certain exceptions, which includes the creation of a custom to that effect. a claim of hereditary succession may be accepted if it is founded in a direction to that effect by the waqif (i.e. the founder of the waqf). Such a direction may be presumed from a practice of successive appointments made from amongst the waqif’s family members. Even the decisions which have held that there is no right to hereditary succession to the office of mutawalli under Muslim law do not support the appellants’ contention that there cannot be an exception by way of custom to the general rule affirmed in those decisions. The Waqf Act, 1995 itself acknowledges that a waqf may have a hereditary mutawalli. This is evident from the proviso to Section 69(2), dealing with the power of the Waqf Board to frame a scheme for the administration of a waqf. A person claiming 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. 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 incumbent upon the party relying on the custom to plead and prove it. While no person can claim the office of mutawalli merely by virtue of being an heir of the waqif or the original mutawalli, if they can show through a long-established usage or custom that the founder intended that the office should devolve through 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. The respondents in paragraph 2 of their plaint in O.S. No. 1/1998 have specifically pleaded that the office of the mutawalli is vested in the Pattakal family ‘by virtue of immemorial custom and usage.’ It can be inferred that even prior to the enforcement of the Kazis Act, the government appointed a Kazi for Andrott Island, for a limited duration only, on the request of the inhabitants. Therefore, such appointment would not prejudice the respondents’ customary right to manage the Jumah mosque. In any event, a singular artificial break or gap in the exercise of a customary right, that too by executive orders, would not lead to abrogation of the customary right itself, unless such break constitutes a recurring infringement or leads to conferment of title in the opposite party. The appellants have not been able to show that apart from the instances mentioned in Ex B8 or B9, anybody else was functioning as the Kazi-cum-mutawalli of the mosque since ages prior to the filing of the suit, so as to constitute a recurring infringement or to confer title upon a third party. On the other hand, the respondents have produced considerable documentary evidence to show that members of the Pattakal family were functioning as mutawalli since the establishment of the mosque. Thus, the appellants’ argument in this regard fails.[Paras 16-26, 29] [979-H; 980-A-B; 982-B, C, G-H; 983-C, E-H; 984-E-G; 985-A; 988-G-H; 989-B-C]

1.5 The committee was only in existence from 1966 to 1972 and that too only to advise the mutawalli in relation to the repair and maintenance of the mosque. Entries made in and around 1967 regarding the Jumah mosque in the List of Wakfs and the Register of Wakfs under the Wakf Act, 1954, evidence that the office of mutawalli was customarily vested in the respondents, and not in the committee, during the period to which the entries pertain. Since the List of Wakfs (Ex A3) relied upon by the respondents is a Gazette notification, the entry contained therein showing that the office of mutawalli was held by the Patakkal family will constitute a relevant fact under Sections 35,

45 and 81 of the Evidence Act. 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 as the mutawalli of the Jumah mosque is a relevant fact for the purpose of deciding this dispute. Under Order I Rule 8, CPC, which pertains to representative suits, a person may sue or defend on behalf of others and for the benefit of others having the same interest, with the permission of the Court. The object of Order I Rule 8 is to facilitate the decision of 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. Even assuming that the respondents’ contention is accepted that the said suit was not strictly filed under Order I Rule 8, it would be regarded in the nature of a representative suit for the purposes of Explanation (c) to Order XXIII Rule 3B. Explanation (c) provides that the term ‘representative suit’ includes suits where the compromise decree passed therein becomes binding on persons not named as parties to the suit. In O.S. No.10/1974, Pattakal Koyammakoya was representing the respondent family’s interests in his capacity as Karanavan of the family. The appellants before this court have also not disputed that the compromise decree was without leave of the court and without notice to interested family members. Such violations of Order XXII Rule 3-B cannot be said to be merely procedural, and go to the root of the matter since they deprive the affected parties of the chance to question the terms of the compromise that they are going to be bound by. Since both the conditions required under Order XXIII Rule 3B were not complied with, the compromise decree was void. Further, in addition to the above procedural violation, the compromise decree is also illegal insofar as it fails to comply with Section 60 of the Wakf Act, 1954, which provides that no suit in any Court by or against the mutawalli of a wakf relating to the rights of the mutawalli shall be compromised without the sanction of the Wakf Board. Rather than obtaining the sanction of the Wakf Board prior to the decree, the compromise decree mentions in paragraph 7 that the decisions taken therein are to be subsequently intimated to the Wakf Board. The compromise decree was illegal and void. The abrogation of custom cannot be inferred from a mere individual declaration (i.e. the admissions made by Pattakal Koyammakoya Thangal in the decree) in the absence of any continuous course of conduct by the family to that effect. The respondents’ family was not given notice before passing of the compromise decree and did not have any say with respect to the terms framed therein, and hence it cannot be said that the decree is binding against them. Thus, the appellants have not been able to establish that there was a breach in the respondents’ customary right of holding the post of mutawalli due to the formation of the committee in 1966 which existed till 1972 or due to the compromise decree which is declared as void. [Paras 30, 32 and 33] [989-G-H; 90-C, D-F; 992-C-F; 993-A-D]

1.6 There cannot be any dispute that the mutawalli has no right in the property belonging to the waqf, and is merely a superintendent or manager. Hence, the respondents’ right to office of mutawalli does not divest the waqf of its public character. Moreover, the exercise of any customary right to succession will be necessarily subject to the provisions of the Waqf Act, 1995, which provides broad powers to the Waqf Board for supervising the administration of a waqf. Even if the mutawalli belongs to the 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. It cannot be said that the respondents’ exercise of customary right to the office of mutawalli is unreasonable or violates public policy. The respondents have been able to establish a customary right to the office of mutawalli of the Jumah mosque, under the facts and circumstances of this case, which is not unreasonable or opposed to public policy. The respondents have through clear and unambiguous evidence shown a practice of continuous and invariable devolution of the office of mutawalli through successive appointments from within the Patakkal family, beginning with the institution of the mosque itself. This evidence is sufficient to draw a presumption that such hereditary devolution was as per the intention of Ubaidulla, the original wakif, therefore also satisfying the specific requirements for proving a custom of hereditary succession to the office of mutawalli. [Paras 34, 35] [994-A-B; 995-B-E]

Hindustan Petroleum Corporation Ltd v. Dilbahar Singh (2014) 9 SCC 78 – followed.

Bala Shankar Mana Shankar Bhattjee v. Charity

Commissioner, Gujarat State [1994] 2 Suppl. SCR 687 – relied on.

Sayed Ahamedkoya Thangal v. Administrator, (1997) 2 KLJ 362; Mt. Sardar Bibi v. Haq Nawaz Khan, AIR 1934 Lahore 371; Ram Dass v. Ishwar Chander (1988)

3 SCC 131 : [1988] 1 Suppl. SCR 239; Atimannessa Bibi v. Abdul Sobhan, (1916) 43 Cal 467 ; In Re Mahomed Haji Haroon Kadwani ILR (1935) 59 Bom

424; Bebee Syedun v. Syed Allah Ahmad W.R. 1864,

327 (Calcutta High Court); Shah Gulam Rahumtulla Sahib v. Mahommed Akbar Sahib 8 Mad. H.C. Rep.

63 (1875); Phatmabi v. Haji A. Musa Sahib (1915) 38 Mad. 491; Kalandar Batcha Sahib v. Jailani Sahib AIR 1930 Mad 554 ; H.H. Mir Abdul Hussein Khan v. Bibi Sona Dero AIR 1917 PC 181; Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar (1871-72) 14 Moo IA

570 ; Muniandi Kone v. Sri Ramanatha Sethupathi AIR 1982 Madras 170 ; K.A Srinivasa Ayyangar v. S. Ramanujachariar 1941 (1) M.L.J 322 – referred to. S.A Khader in Law of Wakfs (1999, Page 33); Mulla in Principles of Mahomedan Law, 21 st Edn., 2017, Prof. Iqbal Ali Khan Edn.; Fyzee’s Outlines of Muhammedan Law (5 th Edn., 2008, Prof. Tahir

Mahmood Ed., p. 49) – referred to.