Succession – To the Office of Chief Mutawalli – Rule of Primogeniture – When not applicable – One ‘HAM’ started the Hamdard Dawakhana as sole proprietor – Died leaving behind his wife and two sons, ‘AH’ and ‘MS’ – These three executed Deed in 1948 to manage the affairs of Hamdard – ‘AH’ became the sole surviving Wakif Mutawalli in terms of the 1948 Deed – In 1964, the Wakif Mutawalli appointed his two sons ‘AM’ and ‘HA’-appellant as Mutawallis – Wakif Mutawalli issued various declarations from time to time for working of Hamdard – On the basis of such declarations, a comprehensive declaration was issued in 1973 amending the 1948 Deed – Wakif Mutawalli died – ‘AM’ became the Chief Mutawalli –’AM’ died – Dispute between the parties as to who should discharge the duties of Chief Mutawalli of now Hamdard Laboratories (India) – Appellant filed suit inter alia for declaration that respondent no.1 is no longer Mutawalli under the 1948 Deed – Respondent No.2 also filed suit inter alia seeking removal of the appellant and his son as Mutawallis – Respondent nos.1 & 2 are sons of ‘AM’, elder brother of the appellant – Respondent No.2’s application u/Or.XXXIX, r.1&2 was dismissed while that of the appellant was allowed by the Single Judge holding that the seniormost male descendant in the line of succession of Wakif Mutawalli is prima facie entitled to be Chief Mutawalli– Division Bench applying the rule of primogeniture set aside the order holding that after the death of the Chief Mutawalli, the senior most male in his line and also a Mutawalli is entitled to succeed to his office – Held: Rule of primogeniture is not applicable to the Muslims as per the Personal Law – Entire 1948 Deed as amended in the year 1973 has to be read together to find out the process of appointment of Chief Mutawalli – At least two provisions of the 1973 Deed are that the senior most male descendant in the line of succession of Wakif Mutawalli shall be Chief Mutawalli – Action of the Wakif Mutawalli in nominating the senior most male descendant ‘AM’ and his younger son-the appellant as Mutawallis in terms of the 1948 Deed shows that his both lines of successors were treated equally – Since, the Board of Trustees was contemplated to be five Mutawallis including Wakif Mutawalli or Chief Mutawalli, therefore, the induction of grandsons (Respondent Nos.1 & 2 and the sons of the appellant) also was not in order of date of birth but keeping in view the representations to both sons of the Wakif Mutawalli (‘AM’ and ‘HA’) – Therefore, the 1948 Deed as amended does not show the applicability of rule of primogeniture but equal representation to the heirs of both sons of Wakif Mutawalli – Order of the Division Bench set aside and that of the Single Judge, restored – Code of Civil Procedure, 1908 – Or.XXXIX, rr.1&2 – Wakf Act, 1995 – Principle of interpretation of document.
Code of Civil Procedure, 1908 – Or.XXXIX, rr.1&2 –Ad-interim mandatory injunction – Grant of – Held: Ad interim mandatory injunction is to be granted not at the asking but on strong circumstance so that to protect the rights and interest of the parties so as not to frustrate their rights regarding mandatory injunction.
Allowing the appeals, the Court
HELD: 1.1 The order of Division Bench cannot be sustained. The nature of Hamdard was settled that it is not Wakf as is defined in the Wakf Act,1995 and that the property, movable and immovable, belonging to it would be deemed to be vested in its governing body. No merit in the argument that the consent of the parties in an appeal against an interim order passed on an application under Order XXXIX Rules 1 and 2 of the Code related to issues which are required to be framed after completion of the pleadings in a suit. The appeal was directed against interim injunction, therefore, the expression “issue” used in para 3 of the consent order is not the issues in the suit, but the questions which arise for consideration at the ad-interim stage. The parties agreed that the question of considerable importance relates to the appointment of Chief Mutawalli at the time of consideration of an interim application. Both the courts have examined the Deeds to consider as to whether the Appellant can be said to be Chief Mutawalli. [Paras 37- 39][428-A; 429-B-D]
1.2 The rule of primogeniture is not a rule applicable to the Muslims as per the Personal Law as held in Faqruddin’s case. The 1948 Deed is unambiguous that two brothers ‘HHAH’ and ‘HMS’ shall be Trustees and that in case of death of any one of the Trustee then the deceased Trustee will be replaced by his elder son and in case of death of other Trustee he will be replaced by his elder son (Clause 3 as reproduced above). Similarly, Clause
4 of the Deed is that the Trustees of the Trust will be appointed from their sons who will be eldest in age and after that from the sons of their sons, the elder son will be appointed as Trustee. [Para 42][430-B-D]
1.3 The 1973 Deed is not a new document but includes amendments in the 1948 Deed based upon the declarations made by the Wakif Mutawalli from time to time compiled on 02.07.1973. In the declaration dated 02.07.1973, in the first line there is a full stop after the word “mutawalli” and thereafter, new line starts. But in the 1973 Deed (Annexure P-1), the full stop is missing. It appears to be an inadvertent omission as the Deed as amended in the year 1973 in the absence of full stop is not coherent and appears to be incomplete. [Paras 43, 44][430-E; 431-A-B]
1.4 The well-known principle of interpretation of document is that one line cannot be taken out of context. It is a cumulative reading of entire document which would lead to one conclusion or the other. Therefore, the entire 1948 Deed as amended in the year 1973 has to be read together to find out the process of appointment of Chief Mutawalli. [Paras 45, 46][431-B; 432-D]
1.5 The argument that the rule of primogeniture is explicit in the amended clauses of the 1948 Wakf Deed, as the eldest son and after his death his son has been given the preferential treatment than the other male descendants, is not tenable. Clause
1 of 1973 Deed is that the senior most among the male descendants of the Wakif-Mutawalli holding an office of Mutawalli will be the Chief Mutawalli. The Clause 3 of the same deed is that the First Chief Mutawalli will be appointed by Wakif Mutawalli thereafter the senior most male descendant in line of succession (of Wakif Mutawalli) and then holding an office of Mutawalli will be the Chief Mutawalli. Thus, at least two provisions of the 1973 Deed are that the senior most male descendant in the line of succession of Wakif Mutawalli shall be Chief Mutawalli. [Paras 47, 48][432-E-G]
1.6 The argument that the constitution of the Board of Mutawallis on 04.07.1995 negates the argument raised by the Appellant that the senior most male descendant has to be the Chief Mutawalli and second in line as Nazir (Secretary). No doubt in the constitution of the Board on 04.07.1995, the second senior most male descendant was not nominated as Nazir (Secretary) but such fact alone will not negate the various provisions of the document which support the contention raised by the Appellant that it is the senior most male descendant who shall be the Chief Mutawalli. The action of the Wakif Mutawalli in nominating the senior most male descendant ‘AM’ and his younger son-the Appellant as Mutawallis in terms of 1948 Deed shows that his both lines of successors were treated equally. [Paras 49, 50] [432-H; 433-A-C]
1.7 1973 Deed is not a new document but the amended 1948 Deed by Wakif Mutawalli from time to time. Since, the Board of Trustees was contemplated to be five Mutawallis including Wakif Mutawalli or Chief Mutawalli, therefore, the induction of grandsons was not in order of date of birth but keeping in view the representations to both sons of the Wakif Mutawalli. Therefore, the 1948 Deed as amended does not show the applicability of principal of rule of primogeniture but equal representation to the heirs of both sons of Wakif Mutawalli. The argument that there is delay and laches on the part of the Appellant to dispute the existing mechanism of the management is again not tenable. The entire argument is based upon the constitution of the Board on 04.07.1995. Mere failure to dispute the constitution of Board would not mean that the 1948 Deed or 1973 Deed is rendered otiose. The constitution of the Board by the Wakif Mutawalli was in relation to the requirements of the Hamdard to carry out the functions of the Board but that does not rewrite the Rule of Succession contemplated after amendments in 1948 Deed in the year 1973. [Paras 51, 54] [433-E-G; 434-D-E]
1.8 1973 Deed provided for disqualification of conviction in criminal case involving moral turpitude. None of the criminal prosecution launched against the Appellant have ended up in conviction, therefore, there is no disqualification attached to the Appellant at this stage. [Paras 55][435-F]
1.9 The ad interim mandatory injunction, is to be granted not at the asking but on strong circumstance so that to protect the rights and interest of the parties so as not to frustrate their rights regarding mandatory injunction. The argument that under Order XXXIX Rules 1 and 2 of the Code, the Court has the jurisdiction to maintain the status of the parties on the date of filing of the suit or on the date of passing of the order but cannot direct the parties to do something which was not in existence at the time of filing of the suit, is not a general rule of universal application. The nature of the orders claimed by the Appellant are not passed ordinarily in a routine manner as the Plaintiff is required to have a case which should be of higher standard than mere prima facie case. But in view of the agreement between the parties, as recorded by the Division Bench in an earlier round of litigation the primary question was agreed to be that who is to act as Chief Mutawalli. Both, Single Judge and the Division Bench has examined such question only. Even, before Supreme Court, the parties have argued primarily on the question as to who shall be Chief Mutawalli. Therefore, a prima-facie opinion would lead to consequential order in respect of management of the affairs of the Hamdard. [Paras 57, 58][434-H; 435-A; G-H; 436-A-C]
1.10 The order passed by Division Bench is set aside and that of the Single Bench is restored. The parties will additionally continue with the arrangements arrived at in respect of the banking operations of the Hamdard in terms of the resolution dated 28.04.2015. It is needless to say that decisions of the suits shall be on the basis of evidence to be led by the parties as the present order is in the context of deciding ad interim injunction application only. An endeavour shall be made to decide the suit expeditiously by granting maximum period of three months to each of two sets of parties to conclude their respective evidence so that an early decision is arrived at to finally conclude the first stage of disputes between the parties. [Paras 59-61] [436-C-F]
Faqruddin v. Tajuddin (2008) 8 SCC 12 : [2008] 9 SCR 377 ; Delhi Development Authority v. Durga Chand Kaushish (1973) 2 SCC 825 : [1974] 1 SCR
535 ; Deoraj v. State of Maharashtra and Others (2004)
4 SCC 697 : [2004] 3 SCR 920 – relied on.
A. Aruputham v. A.V. Yagappa (1971) 3 SCC 808 – held inapplicable.
Dorab Cawasji Warden v. Coomi Sorab Warden and Others (1990) 2 SCC 117 : [1990] 1 SCR 332 ; Dollar Company, Madras v. Collector of Madras (1975) 2 SCC 730 : [1975] Suppl. SCR 403 ; Wander Ltd and Another v. Antox India P. Ltd. (1990) Suppl. SCC 727; Mohd. Mehtab Khan and Others v. Khushnuma Ibrahim Khan and Others (2013) 9 SCC 221 : [2013] 3 SCR 359; Samir Narain Bhojwani v. Arora Properties and Investments and Another 2018 (10) SCALE 33 ; The Secretary of State for India in Council v. Syed Ahmad Badsha Sahib Bahadur (1921) LW Mad.188 (DB);The Secretary of State for India in Council vs. Syed Ahmad Badsha Sahib Bahadur (1921) 14 L.W. 128 (F.B.) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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