Muslim Law | Aliyathammuda Beethathebiyyappura Pookoya v. Pattakal Cheriyakoya, C.A. No. 9586 of 2010 01-08-2019 SC

SUPREME COURT OF INDIA | Mohan M. Shantanagoudar & Ajay Rastogi, JJ. C.A. No. 9586 OF 2010 01-08-2019

The Code of Civil Procedure, 1908 – Order I Rule 8 and Order XXIII Rule 3B – Representative Suits – Compromise Decree – 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 – 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.

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. [Para 32]

The Wakf Act, 1954 – Section 60 – Compromise decree without the sanction of the Wakf Board is illegal and void.

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. [Para 32]

Muslim Law – Principles governing the establishment of a custom.

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. [Para 23]

Wakf – Mutawalli – Hereditary Succession – Custom or Usage.

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. [Para 24]

The Waqf Act, 1995 – Section 69 (2) – Power of the Waqf Board to frame a scheme for the administration of a waqf – A waqf may have a hereditary mutawalli.

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. [Paras 21 and 22]

The Waqf Act, 1995 – Section 3(i) – ‘mutawalli’ – Definition of – Office of mutawalli can be customary – the definition of ‘mutawalli’ 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. Hereditary succession is extremely unlikely in offices in Mohammedan religious endowments. 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. [Paras 16 -18]

The Waqf Act, 1995 – Section 83 (9) – Scope of the revisional jurisdiction of the High Court against an order of the Waqf Tribunal.

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. 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. [Para 12]

The Waqf Act, 1995 – Section 83 (9) – Scope of the revisional jurisdiction of the High Court against an order of the Waqf Tribunal.

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. [Para 13]

Issues

1. Whether the High Court exceeded the scope of its revisional jurisdiction.
2. Whether the respondents have pleaded and proved that they have a customary right to the office of mutawalli in the Jumah mosque

Waqf – Hereditary Succession – 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.

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 mentioned supra for proving a custom of hereditary succession to the office of mutawalli. Therefore, the appeals are dismissed and the impugned judgment and order is confirmed. [Paras 35 – 36]

The Waqf Act, 1995 – Sections 64 and 69 – Mutawalli has no right in the property belonging to the waqf, and is merely a superintendent or manager.

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 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. [Para 34]

Wakf – Mutawalli – Mismanagement – 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. [Para 34]

The Kazis Act, 1880 – Section 4 (c) – 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 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. [Para 28]

Petitioner’s Advocate : A. Raghunath
Respondent’s Advocate : E. M. S. Anam